Delhi District Court
State vs 1. Farukh @ Chapta, S/O Siraj Qazi, on 23 September, 2013
IN THE COURT OF SH. RAKESH KUMAR
ADDITIONAL SESSIONS JUDGE - NORTH EAST
KARKARDOOMA COURTS:DELHI
SC No.25/2011
FIR No.219/2010
PS : Seemapuri
U/s 307/324/34 IPC
State Versus 1. Farukh @ Chapta, S/o Siraj Qazi,
R/o E127, New Seemapuri, Delhi.
2. Gabbar @ Gaffar, S/o Mohd. Khalil,
R/o E44/B319, New Seemapuri, Delhi.
3. Suleman @ Gurda, S/o Abdul Hussain
R/o H. No.D474, Gali No.2, Pappu
Colony, Sahibabad, Ghaziabad, U.P.
4. Anwar Hussain, S/o Shiraj,
R/o E44/A241, New Seemapuri, Delhi.
Case assigned to Sessions on : 10.05.2011.
Arguments concluded on : 12.09.2013.
Date of judgment. : 23.09.2013.
: J U D G M E N T :
1.The above named accused persons were booked by the SHO PS Seemapuri Under Section 307/324/34 IPC and they have faced trial for having committed offence punishable Under Sec. 307/34 IPC.
2. As per story of prosecution, on 06.08.2010 on receipt of DD No.107B to the effect that "70 Futa Road, New Seema Puri, mujeh goli marne ki koshis kar rahe hain" SI Manoj Kumar alongwith Ct. Prem Singh went to the spot but nobody was found there. On making inquiry it was revealed that PCR van had already removed State Vs. Farukh @ Chapta & Ors. (SC No.25/2011) Page No.1 of pages 36 the injured persons to GTB Hospital. Accordingly, SI Manoj Kumar alongwith Ct. Prem Singh reached at GTB Hospital, where SI Manoj Kumar collected two MLCs i.e. MLC No.A3586/10 of one Javed @ Tony and MLC No.B3662/10 of unknown person. Upon the MLC of Javed doctor mentioned as fit and injury U/O caused by knife/talwar and on the MLC of unknown person, doctor mentioned as patient unfit and injury U/O. Both the injured persons were under treatment and no eye witness could be found at the hospital and later on statement of injured Javed was got recorded wherein he alleged that "he was running a garbage (Kabari) shop at 70 foota road near Nisharia Masjid. On 06.08.2010 at about 11.15 PM he alongwith his friend Alamin, after having meal, were walking out side their house and in the meantime Suleman @ Gurda, Farukh @ Chapta and other two persons came to them and out of the said boys, Suleman @ Gurda asked him to close down his garbage (kabari) shop as due to him, his work of garbage (kabari) was closed and had made him understand several times. When he asked Suleman @ Gurda as to what loss he had caused to him, Suleman @ Gurda got annoyed and asked his companion to made him understand. When his friend Alamin tried to intervene, one of the said boys told that they would also make him understand and Suleman @ Gurda and one other boy started assaulting him (Javed) with pointed object, whereas Farukh @ Chapta and one another boy attacked Alamin. After beating and assaulting them, they all ran away. Thereafter, police vehicle took them to GTB Hospital. On the basis of statement and MLCs, offence punishable U/s 324/34 IPC was found to be made and accordingly IO prepared rukka and sent the same to PS for registration of FIR through Ct. Prem Singh. After registration of FIR, SI Manoj Kumar initiated the investigation and during that course, on the pointing out of Alamin, he prepared site plan and recorded the statements of witnesses. On 08.08.2010, on the identification of Sonu, accused Farukh @ Chapta was State Vs. Farukh @ Chapta & Ors. (SC No.25/2011) Page No.2 of pages 36 arrested in this case and his disclosure statement was recorded and accused after reaching at the spot pointing out towards the place of occurrence and thereafter, accused Farukh @ Chapta was released on police bail. On 10.08.2010 complainant Javed @ Tony told that on that day due to injury he could not give his statement properly and further told that Suleman @ Gurda was already having grievance with him and on 06.08.2010 Suleman @ Gurda alongwith his associates attacked him with intent to kill. Thereafter, upon discussion with seniors, Sec.307 IPC was added in this case and statement of complainant U/s 161 Cr.P.C to that effect was recorded. On 17.08.2010 accused Farukh @ Chapta was again arrested in this case and he was produced before the court and remanded to JC. On 02.09.2010, on the identification of Sonu accused Gabbar @ Gaffar was arrested in this case and his Disclosure Statement was also recorded and on his pointing out of the spot, pointing out memo was prepared, statements of witnesses were recorded and then he was produced before the court and remanded to JC. Accused Suleman @ Gurda and Anwar Hussain could not be arrested, despite best efforts and on 20.10.2010 NBWs were got issued against them. On 01.11.2010 accused Suleman @ Gurda was arrested in this case and his Disclosure Statement was recorded and he pointed out the place of occurrence. Accused Suleman @ Gurda disclosed that after the incident, while running from the spot, he threw the knife type object, used in the crime, near DTC Depot park. Pointing out memo in this regard was prepared, however, despite making thorough search, such knife type object could not be recovered from there. Statements of witnesses were recorded and he was produced before the court and remanded to JC. Result on the MLCs were collected and on the MLC no.3586/10 of Javed result came as grievous and on the MLC No.B3662/10 patient was recalled for examination. Then on finding sufficient material on record, Charge Sheet was presented before the court against State Vs. Farukh @ Chapta & Ors. (SC No.25/2011) Page No.3 of pages 36 accused Farukh @ Chapta, Gabbar @ Gaffar and Suleman @ Gurda. Subsequently, after his apprehension, accused Anwar Hussain was also charge sheeted by way of supplementary challan.
3. Since the offence alleged against the accused persons were exclusively triable by the court of sessions, so after supplying copies etc. and completing the proceeding U/s 207 Cr.P.C, the case was committed for Sessions and by way of assignment the case was received in this court.
4. After hearing the rival submissions of both the sides, a charge U/Sec.307/34 IPC was framed against all the accused persons, to which they pleaded "not guilty" and "claimed trial".
5. In its support, the prosecution has examined as many as 11 witnesses, out of them PW5, PW6, PW7 & PW8 are the formal/official witnesses, whereas PW4, PW9 & PW10 are the expert/medical witnesses and rest of the witnesses, i.e. PW1, PW2, PW3 & PW11 are the material witnesses.
6. FORMAL/OFFICIAL WITNESSES: PW5 Ct. Prem Singh testified that on 06.08.10 on receipt of DD No.107B he along with IO SI Manoj Kumar had gone to Nasaria Mosque 70 foota road, New Seema Pur, Delhi, where they came to know that injured had already been removed to GTB hospital and accordingly they reached at GTB hospital, where IO collected MLC of Javed @ Tony bearing No.3586/10 and MLC of unknown bearing No.B3662/10. He also stated that due to extreme pain injured Tony could not give his statement. No other eye witness was found. On 07.08.2010 injured Javed @ Tony gave his statement in the hospital to the IO and IO made his endorsement thereon and handed over the same to him for registration of FIR and accordingly he went to PS, got the FIR registered and returned to the spot and handed back copy of FIR and original rukka to the IO. They made search of the accused but State Vs. Farukh @ Chapta & Ors. (SC No.25/2011) Page No.4 of pages 36 of no avail. He further stated that on 09.08.2010, he joined investigation with the IO. On the instance/identification of Sonu, accused Farukh @ Chapta (correctly identified) was apprehended and arrested from near fish market vide arrest memo Ex.PW 2/A bearing his signature at point B. Personal search of accused Farukh @ Chapta was also conducted vide memo Ex.PW 5/A bearing his signatures at point A. Accused also got recorded his disclosure statement Ex.PW 2/B bearing his signature at point B. Accused had pointed out Nisaria Masjid, New Seema Puri, 70 foota road vide pointing out memo Ex.PW2/C bearing his signatures at point B. During cross examination he stated that no relative of injured met them. Statement of Javed @ Tony was recorded in the hospital at about 8.00 AM. IO did not record the statement of any independent public persons as nobody came forward. He further stated that in his presence, statements of the family members of Javed @ Tony and Sonu were not recorded. On 08.08.2010 in the evening time, he had gone to the spot in connection with the search of accused and on that day Sonu had met them on the way near Nasaria Mosque and told them about the presence of accused Farukh @ Chapta in fish market. Sonu had pointed out towards accused Farukh from the corner of gali which was around 1520 yards and he was formally arrested at about 11.30 PM.
PW6 HC Madan Pal is the Duty Officer, who proved the factum of registration of FIR No.219/2010 as Ex.PW6/A and his endorsement made on rukka as Ex.PW6/B. PW7 Ct. Jitender Tyagi testified that on 17.08.10 he joined the investigation with SI Manoj Kumar in search of the accused Farukh @ Chapta and they reached at E127 New Seema Puri, Delhi, from where accused Farukh @ Chapta was rearrested in this case vide arrest memo Ex.PW7/A and his personal search was also conducted vide personal search memo Ex.PW7/B. Further on 02.09.2010, he again joined the investigation with SI State Vs. Farukh @ Chapta & Ors. (SC No.25/2011) Page No.5 of pages 36 Manoj in this case in search of accused Gabbar @ Gaffar and they reached at jhuggi no.E44/B319 New Seema Puri and arrested him vide arrest memo Ex.PW2/D and his personal search was also conducted vide personal search memo Ex.PW2/E. He also stated that information qua his arrest was given to his mother namely Jayada. At that time public witness Sonu and Ct. Sanjeev were also present with them. Again on 01.11.10, he joined investigation with SI Manoj and accused Suleman @ Gurda was arrested by the IO in the PS vide arrest memo Ex.PW7/C and his personal search was also conducted vide personal search memo Ex.PW7/D. Accused Suleman @ Gurda also made a disclosure statement Ex.PW7/E. Further going ahead to the police, accused Suleman @ Gurda pointed out the place of occurrence i.e 70 foota road, near Nisaria Mosque, new Seema Puri, Delhi vide pointing out memo Ex. PW 7/F bearing his signature at point A and also another place near the park DTC Bus Depot, 70 foota road, New Seema Puri where he had assaulted and beaten Javed @ Tony. PW8 Ct. Sanjeev is also the witness of arrest of arrest of accused Gabbar @ Gaffar, who confirmed that accused Gabbar @ Gaffar was arrested in this case from E44/B319 Jhuggi, New Seema Puri vide arrest memo Ex.PW2/D and his personal search was conducted vide personal search memo Ex.PW2/E. He further stated that accused made disclosure statement to IO Ex.PW2/F bearing his signature at point B. Accused had pointed out the place of occurrence i.e 70 foota road near Nisaria masjid vide pointing out memo Ex.PW2/G bearing his signatures at point B.
7. Medical/Expert witnesses: PW4 Dr. Parmeshwar Ram, testified that as per MLC bearing no.A3586/10, on 07.08.10 at about 12.20 a.m one Tony, Male 26 years came in the hospital with history of assault sustained on the same night at about 11.30 p.m in Seema Puri. He was medically examined and following fresh injuries were State Vs. Farukh @ Chapta & Ors. (SC No.25/2011) Page No.6 of pages 36 found on his person:
1. Clear lacerated wound measuring 2 cm x 1 cm over left hypochondriac (upper abdomen).
2. Clear lacerated wound measuring 2 cm x 1 cm over left lower quadrant of abdomen (lower abdomen).
3. Clear lacerated wound measuring ½ cm x ½ cm over epigastrium (just below the chest portion).
4. Clear lacerated wound measuring 7 cm over left hand.
5. Clear lacerated wound measuring 5 cm x 2 cm over left temporal region (scalp).
He further stated that after examination and primary treatment the patient was referred to surgery as well as neuro surgery department and xray was also advised. He identified the writing and signature of Dr. Hareesh on the MLC Ex.PW4/A at point A. He further testified that as per MLC bearing no.B3662/10 Ex.PW3/A of one unknown person, Male 24 years was brought by PCR official on 07.08.10 at about 12.20 a.m for medical examination with history of assault sustained on the same night at about 11.30 p.m in Seema Puri. He was medically examined and following fresh injuries were found on his person:
1. Clear lacerated wound near oxypital right side of the head measuring 5 cm x 3 cm deep reaching till skull.
2. Clear lacerated wound over forehead measuring 3 cm x 0.1cm.
3. Incised wound over right pinna (ear) measuring 3 cm.
4. Clear lacerated wound behind right pinna measuring 2 cm x 0.1 cm.
State Vs. Farukh @ Chapta & Ors. (SC No.25/2011) Page No.7 of pages 36
5. Abrasion on forehead, bridge of nose.
6. Laceration on upper lip measuring 0.1 cm x 0.1 cm.
7. Clear lacerated wound inner aspect upper lip measuring 0.5 cm x 05 cm.
Further after examination and primary treatment the patient was referred to neuro surgery, surgery, E.N.T and Dental department for further treatment and management. He identified the writing and signature of Dr. Gaurav Bhaati on the MLC Ex.PW 3/A at point X. PW9 Dr. Abhinav Singh proved that he had given the opinion regarding the nature injury as grievous on MLC no. A3586/10 Ex.PW4/A on the basis that the patient under went exploratory laprotomy for bowel perforations (intestinal perforations). He also proved his endorsement on the MLC Ex.PW4/A, which is encircled in red at mark X and bearing his signature at point B. During cross examination he could not specify the weapon by which the injuries were inflicted in the present case. Further he conceded that when he gave opinion on 13.09.2010, the patient was not present at that time. He never examined the patient in person but he gave opinion on the basis of surgical records. PW10 Dr. Narendra, testified that on 20.10.2010 on the MLC no.B3662 dated 07/08/10 Ex. PW 3/A of unknown, aged about 24 years male, Dr. Pankaj (the then SR) opined about the nature of injury as grievous vide his endorsement at point X encircled in red. He identified the handwriting of Dr. Pankaj and his signatures at point X1.
During cross examination he conceded that the opinion was not given by Dr. Pankaj during his tenure.
8. Material witnesses: PW1, PW2 & PW3 are the material witnesses of the State Vs. Farukh @ Chapta & Ors. (SC No.25/2011) Page No.8 of pages 36 occurrence being the injured/complainant and eye witness and PW11 is the Investigating Officers.
9. PW1 Javed @ Toni testified that on 06.08.2010 at about 11.15 PM, after taking dinner, he alongwith his friend Alamin had come outside his house for a walk. At that time, accused Salman @ Gurda and Farukh @ Chapta (correctly identified) alongwith their two other associates had come to him. Accused Suleman asked him to close his Kabari business, as accused Suleman was having a loss in his kabari business. When he told to Suleman that he would not close his business as he had not done anything wrong and he was earning for livelihood and his friend Alamin also intervened and questioned the accused as to why they were having such conversation at night, accused Suleman @ Gurda told his associates to teach him a lesson. Thereafter, accused Suleman and Farukh attacked him alongwith their two associates (who are not present in court). The accused persons had attacked him with pointed object and knife on various parts of his body. His friend Alamin was also attacked by accused Suleman @ Gurda and accused Farukh @ Chapta alongwith two other associates. He and his friend Alamin were taken to GTB Hospital by the police. Police had recorded his statement Ex.PW1/A, which was signed by him at point A. After seeking permission of the Court Ld. Addl. PP cross examined the witness as he was resiling from his previous statement given to police and during that course he conceded that accused Suleman @ Gurda and one other associate had beaten him with some pointed object. Further Farukh @ Chapta and one other associate had attacked Alamin. After beating and assaulting them, they all ran away. He denied that on 06.12.2010, he had come to Karkardooma Court and he had identified the accused Anwar Hussain (present in court) to be the same person who alongwith his associates Suleman @ Gurda had caught hold of him while Suleman had attacked him with some pointed object.
State Vs. Farukh @ Chapta & Ors. (SC No.25/2011) Page No.9 of pages 36 During cross examination by Ld. Counsel for accused Suleman @ Gurda he stated that Sonu is his real brother. He conceded that prior to the present case, he had no enmity with the accused persons or there was no case between them. Accused persons had started altercation with him near the mosque. Since it was night, so no public persons were passing. They were only there. First of all, accused Suleman caught him hold from his collar of the shirt but he could not tell with which hand, he had caught him. Farukh @ Chapta alongwith one other person had caught Alamin. The distance between the mosque and his house was at the distance of about 1012 paces and his house is constructed in the area of around 25 sq. yards. His brother Sonu, his mother Noor Jahan and his bhabi Ms. Gudiya were sitting there. He could not tell as to where and when his statement was recorded by the police. His brother Munna had called police, who was at the shop. Police had not recorded the statement of Munna, his mother and bhabi in his presence.
PW2 Sonu testified that on 06.08.2010 at about 11.00/11.15 PM, his brother namely Javed @ Tony alongwith his friend Alamin was on night walk, after taking dinner. In the meantime, one person came near him and informed that somebody was assaulting his brother. He immediately rushed to the spot i.e. near Nisaria Masjid on 70 foota road and he saw his brother Javed @ Tony was caught hold by Farukh Chapta and two other persons, whom he could not see. Accused Suleman @ Gurda assaulted his brother with some pointed object. All four managed to flee away taking benefit of crowd. On his identification accused Farukh @ Chapta was arrested from fish market New Seelampuri vide arrest memo Ex.PW2/A bearing his signature at point A and from his search one black colour purse and some money were recovered. IO recorded the disclosure statement of accused Farukh @ Chapta Ex.PW2/B bearing his signature at point A. Accused had shown the spot where the occurrence had taken State Vs. Farukh @ Chapta & Ors. (SC No.25/2011) Page No.10 of pages 36 place vide pointing out memo Ex.PW2/C bearing his signature at point A. He correctly identified accused Farukh @ Chapta and Suleman but stated that he does not know the other two accused persons present in court.
During cross examined by Ld. Addl. PP for the state he denied that accused Gabbar @ Gaffar was arrested on 02.09.2010 by the IO in his presence on his identification.
During cross examination by Ld. Counsel for accused persons he conceded that he was present at his house when Tony and his friend Alamin were on the night walk. He was informed about quarrel with his brother, by a person, whose name he does not remember. He did not try to save his brother as the accused persons/assailants were armed with deadly weapons. Besides him and the two injured, around 20 persons from the public had collected on the spot. Farukh @ Chapta was apprehended by the police from near a vegetable shop. He remained with police in the fish market for about twenty minutes. No writing work was done there. Police recorded his statement twice or thrice in the PS on different dates. He conceded that all the proceedings were done by the police in PS. PW3 Alameen testified that on 6.08.10 at about 10.30 p.m, after taking dinner, he along with his friend Javed @ Tony was taking walk near Nisaria Mosque and at about 11.15 p.m accused Farooq @ Chapta and Suleman @ Gurda (correctly identified) along with two other persons (who are not present in the court) came there and they started talking with Tony and during the conversation both accused started alleging that because of him his shop had been closed. When Tony replied that he was not responsible for the closure of the shop, said two persons (who are not present in the court) caught hold of Tony and Suleman @ Gurda assaulted with sharped edged long weapon on the stomach of Tony. Thereafter, again he tried to assault with same weapon over the head of Tony but he saved him. He further testified that State Vs. Farukh @ Chapta & Ors. (SC No.25/2011) Page No.11 of pages 36 as he had helped Tony, so he was also assaulted by accused persons. Accused Farooq @ Chapta assaulted him on the back of his right ear and over his head with the same weapon after taking the same from Accused Suleman. Due to assault, he fell down on the spot and sustained injuries on his face. All four, including the accused persons, fled away after assaulting them. PCR van removed him and Tony to GTB hospital and they were given treatment there. His MLC Ex.PW3/A was prepared, bearing his LTI at point A. Site plan Ex.PW3/B was prepared at his instance, bearing his LTI at point A. During cross examination by Ld. Addl. PP for the state he denied that two accused present today in the court i.e Gaffar @ Gabbar and Anwar Hussain are the persons who were accompanied with accused Farukh and Suleman on the date of occurrence and caught hold Tony and assaulted them.
During cross examination he stated that his house is situated at the distance of around 34 houses from the house of Sonu and Javed. Usually he does not take the night walk. Firstly, he met Javed @ Tony at around 11.15 p.m. Sonu was not present when he met Javed. He was a junk dealer and have a kabadi shop. Suleman @ Gurda, Javed @ Tony and Sonu were also working as a junk dealer/kabadi. Prior to the incident, he never had any altercation or quarrel with Suleman. He denied that shop of Suleman was got opened by Javed and Suleman used to reside at the house of Javed. When accused Suleman told him to close his shop near the Mosque, 56 public persons were present at the spot (near the mosque). He and Tony had their individual kabadi shops/business. No public person was assembled at the spot at the time of occurrence. In his presence neither the weapon of offence was recovered nor the statement of any public person was recorded by the IO. In his presence police did not come to the spot again after recording his statement. His statement was recorded by the police at his home on 7.08.10 in the presence of his wife State Vs. Farukh @ Chapta & Ors. (SC No.25/2011) Page No.12 of pages 36 and children. His statement was recorded only once by the police. He had never visited the police station. He conceded that he did not disclose the name of the accused persons to the doctor at the time of preparation of MLC.
PW11 SI Manoj Kumar, is the IO of the case, who testified that after receiving the telephonic information from Duty Officer regarding DD No.107B to the effect that '70 Futa Road, New Seema Puri, mujeh goli marne ki koshis kar rahe hain'. After receiving this information, he alongwith Ct. Prem Singh went to the spot i.e. 70 Futa Road, near Nisaria Masjid, New Seema Puri, where they came to know that PCR Van had already removed the injured to GTB Hospital. No witness met them at the spot and thereafter, they both went to GTB Hospital, where he collected two MLCs of injured namely Tony and one unknown person. On the MLC of Tony, doctor mentioned fit for statement while on the other MLC it was mentioned that patient was unfit. Thereafter, he alongwith Ct. Prem Singh found that they both were admitted in the hospital and were not in the position to give their statements and accordingly came back to the police station and received the copy of DD no.107B Ex.PW11/A from the Duty Officer. On the next morning at about 7.30 a.m., he alongwith Ct. Prem Singh again went to the hospital and found that Javed @ Tony was fit for statement and accordingly, recorded his statement Ex.PW1/A and on the basis of said statement, he prepared rukka Ex.PW11/B bearing his signature at point A and sent the same to P.S. through Ct. Prem Singh for registration of case. Injured Javed @ Tony disclosed the name of other injured as Alamin but he could not be traced out in the hospital as he had already been discharged from the hospital. Thereafter, he went to the house of Alamin (as told by Javed @ Tony) i.e. E43/A582, 70 Futa Road, New Seema Puri, where Alamin met him. Thereafter, Alamin pointed out the place of occurrence and on his pointing out, he prepared site plan Ex.PW3/B bearing his signatures at point B and thumb impression State Vs. Farukh @ Chapta & Ors. (SC No.25/2011) Page No.13 of pages 36 of Alamin at point A. In the meantime, Ct. Prem Singh also reached at the spot and handed over rukka in original and computerized copy of FIR Ex.PW6/A to him. Thereafter, he alongwith Ct. Prem Singh and Alamin went in search of accused persons, but none could be arrested on that day. Then he recorded the statements of Alamin and Ct. Prem Singh and thereafter, he alongwith Ct. Prem Singh came back to the police station. Further on the next day i.e. 08/08/2010, he alongwith Ct. Prem Singh went to the house of injured Javed @ Tony where his younger brother namely Sonu met them and he claimed that he had seen the incident and he also disclosed that he could identify the assailants. Thereafter, Sonu joined them in the investigation and they went in search of assailants and while searching them they reached at Machhali Market, EBlock, Seema Puri where Sonu pointed out towards one person who was standing at the corner of gali in Machhali Market. Thereafter, at the instance of Sonu that person was apprehended by them and his name was revealed as Faruq @ Chapta. He was interrogated and arrested vide arrest memo Ex.PW2/A and his personal search was also conducted vide personal search memo Ex.PW5/A. During the course of interrogation, accused Faruq @ Chapta made disclosure statement Ex.PW2/B. He recorded the statement of witness Sonu and thereafter, accused Faruq @ Chapta was brought to the P.S. and he was put up in the lockup. On the next morning, accused led the police party to the spot i.e 70 Futa Road, Near Nisaria Masjid, New Seema Puri, where he pointed out the place of occurrence vide pointing out memo Ex.PW2/C. On 10/08/2010, supplementary statement of Javed @ Tony was recorded and after discussing the matter with the senior officials, section 307 was added. On 17/08/2010, accused Faruq @ Chapta was again arrested u/s 307 IPC vide arrest memo Ex.PW7/A and his personal search was also conducted vide memo Ex.PW7/B. On the next day, he was produced before the concerned court and State Vs. Farukh @ Chapta & Ors. (SC No.25/2011) Page No.14 of pages 36 from there, he was remanded to JC. On 02/09/2010, he alongwith Ct. Jitender and Ct. Sanjiv went in search of the other coaccused persons. First of all, they went to the house of Javed @ Tony where his younger brother Sonu met them and he also joined them and told that he came to know about the address of another accused and then he led them to the house no.E44/B319, New Seema Puri, where accused Gabbar @ Gaffar found present and Sonu identified him as assailant. He was arrested vide arrest memo Ex.PW2/D and his personal search was also conducted vide personal search memo Ex.PW2/E. During course of interrogation, accused Gabbar made disclosure statement Ex.PW2/F and thereafter, accused Gabbar pointed out the place of occurrence vide pointing out memo Ex.PW2/G. He recorded the statement of Sonu and thereafter, he was released. Accused Gabbar was produced in the court concerned on the same day and thereafter, he was remanded to JC. Further on 20/10/2010, the NBW's of coaccused Anwar Hussain and Suleman @ Gurda were obtained by him from the court concerned. On 01/11/2010, accused Suleman @ Gurda was arrested in FIR no.300/10 u/s 20 NDPS Act of P.S. Seema Puri. He also interrogated and arrested the accused Suleman @ Gurda in the present case vide arrest memo Ex.PW7/C and his personal search was also conducted vide memo Ex.PW7/D. Thereafter, accused Suleman @ Gurda also pointed out the place of occurrence vide pointing out memo Ex.PW7/F. Accused Suleman @ Gurda also pointed out the place i.e. Park near DTC Depot, Seema Puri, vide pointing out memo Ex.PW7/G while saying that he had thrown the weapon of offence i.e. knife there and accordingly the said place was searched, but nothing could be recovered. Thereafter, accused Suleman was produced before the court concerned and from there, he was sent to JC. He obtained the opinion from the concerned doctor regarding the nature of injury on 13/09/2010 and doctor opined the nature of injury as grievous in nature. He searched the other co State Vs. Farukh @ Chapta & Ors. (SC No.25/2011) Page No.15 of pages 36 accused namely Anwar Hussain, but he could not be arrested. Thereafter, after completion of investigation, chargesheet was filed against accused Faruq @ Chapta, Gabbar @ Gaffar and Suleman @ Gurda. Further on 06/12/2010, accused Anwar Hussain himself had surrendered before the court concerned. He was formally arrested and interrogated vide arrest memo Ex.PW11/C and his personal search was also conducted vide memo Ex.PW11/D. He also made disclosure statement Ex.PW11/E. On the same day, he moved an application (photocopy of which is Ex.PW11/F) for conduction the judicial TIP of accused Anwar, but the accused refused to participate in the judicial TIP proceedings. Thereafter, he was remanded to JC from there. Thereafter, on 20/12/2010, he went to the house of Alamin as doctor recalled him for examination and from there he was brought to the GTB Hospital and produced before the doctor concerned and doctor opined about the nature of injury as grievous. Thereafter, after completion of investigation, supplementary charge sheet was presented against accused Anwar Hussain. He correctly identified all the accused persons.
During cross examination he conceded that the DD No. 107B Ex. PW11/A does not mention the name of assailant as well as the victim and the name of the caller. Further from the spot no empty cartridge or any pellet was recovered. When they reached at the spot 24 public persons found present there but they did not disclose about the incident that is why he did not record their statement. Except the endorsement made by the doctor on the MLC regarding the fitness of the witness, he did not obtain separate fitness from the doctor. He collected the MLC of injured Toni at about 12:30 AM (Mid Night) and the endorsement regarding the fitness of the injured was already on it. Further when he reached at the house of Gabbar, one lady was present there. He did not ask the name of that lady nor recorded her statement. He conceded that no recovery was effected from accused Gabbar.
State Vs. Farukh @ Chapta & Ors. (SC No.25/2011) Page No.16 of pages 36 The fact that accused surrendered himself in muffled face had not been mentioned by him in his arrest memo, however, he clarified that he had mentioned this fact in his application seeking for JC remand. He conceded that complainant Javed @ Toni only mentioned the name of two assailants and did not disclose the physical description of their two other coassociates, who were not named by him. He further conceded that from the place of spot, the house of Toni is visible but they did not go to there. He prepared the site plan at the instance of Alamin at about 9.45 a.m. No public persons gathered at the spot when the site plan was being prepared by him, however, passersby were passing from there. He had asked the public persons to join the investigation on both the occasion i.e. on 06082010 (when he reached at the spot) and on 07082010 (when he reached at the spot with injured Alamin). Ct. Prem Singh reached at the spot after preparation of the site plan. The statements of Ct. Prem Singh and Alamin were recorded by him at the spot. He conceded that neither the Sonu brother of Toni met him nor he recorded the statement prior to 08082010. They reached at the Macchi Market, E Block, Seemapuri at about 11.00 p.m. Sonu pointed out towards the accused Faruk @ Chapta from the 1015 meters. They did not enter into the Machhi Market that is why he cannot say whether the market was opened or closed. No public person gathered when Faruk @ Chapta was arrested, however, passersby were passing from there. He conceded that he did not prepare the site plan of the place from where accused Faruk @ Chapta was arrested. On 09082010, accused Faruk @ Chapta was taken to the spot and they reached at about 9.30 a.m. No public person gathered when they reached there, however, passersby were passing from there.
10. After conclusion of prosecution evidence, separate statements of accused persons were recorded under section 313 Cr.P.C and all of them denied the case/allegations levelled against them and State Vs. Farukh @ Chapta & Ors. (SC No.25/2011) Page No.17 of pages 36 claimed innocence on the pretext of false implication. Accused Farukh @ Chapta and Suleman @ Gurda claimed that they have been falsely implicated in this case because the complainant Javed @ Tony and his mother were running a brothel house near the Maszid and father in law of Farukh @ Chapta and accused Suleman objected to the same and due to enmity for the aforesaid reasons, they were falsely implicated in the present case. It is also claimed by accused Farukh @ Chapta that various complaints were given by his father in law to the higher authorities in this regard. Accused Suleman @ Chapta claimed that after getting the bail in the present case, complainant and his brother (namely Sonu) again attacked him by firing upon him. Accused Farukh @ Chapta and Suleman @ Gurda opted to lead evidence in their defence. Accused Suleman @ Gurda examined Smt. Parul as DW1 and accused Farukh @ Chapta examined Shauqat Ali as DW2 in support of their defence.
11. DW1 Smt. Parul testified that in their locality, a mosque and temple are located there and the activities of the prostitution was being run in the house of Smt. Noor Jahan, mother of the complainant namely Javed @ Tony and because of this activity, the mohalla people were fed up and no body was willing to raise voice to protest such activities. Once accused Suleman raised voice against such activity, he was falsely implicated in a false case by Javed @ Tony.
During cross examination by Ld. Addl. PP for the State she stated that Javed @ Tony and his mother are known to her for the last 8 to 9 years. Neither she nor her husband or her any family member made a complaint regarding the illegal activities of prostitution being run by the mother of Javed @ Tony at her house as they do not want to take any botheration and also they were not sure whether the police will take any action upon their complaint or not as Jipsy always used to station near the house of Noor Jahan. Neither she nor any member of her family got any courage to State Vs. Farukh @ Chapta & Ors. (SC No.25/2011) Page No.18 of pages 36 lodge complaint to PCR, which used to remain there. She stated that she does not have any knowledge whether accused Suleman @ Gurda along with his other coassociates had inflicted injuries on the person of Javed @ Tony on 06.08.10 at about 11.15 p.m. Accused Suleman @ Gurda used to run a kabadi shop, however, Javed @ Tony does not work anything. Presently Javed @ Tony is having his kabadi shop at 70 foota road near Nisharia masjid. She could not tell if Javed @ Tony had been running the abovesaid shop at abovesaid address since 2010 or not. She also could not tell whether any quarrel had taken place between Javed @ tony and Suleman @ Gurda on 06.08.10 on the issue of their business of Kabadi. She denied that she has come to the court at the instance of parokars of Suleman @ Gurda for deposing in his favour or that no illegal activities of prostitution had ever been run at the house of Smt. Noor Jahan mother of Jave @ Tony.
DW2 Shauqat Ali (father in law of Farukh @ Chapta) testified that Javed @ Tony & Sonu are known to him and they are residing at 70 foota road, Nisaria Masjid. He used to go Masjid for Namaz. House of the mother of Javed @ Tony is situated just behind the Maszid, where she was running illegal activities of prostitution. He further stated that in the year 2010, he had gone to the house of mother of Javed @ Tony to make her understand for stopping the prostitution activities and she told him that "tu yahan se chala ja"
and threatened him while saying that she was having approach to the high level. Thereafter, he came back and made an application, photocopy of which is Mark A, to Commissioner of Police and copies thereof were also sent to DCP, Seelampur and SHO PS Seemapuri vide speed post Ex.DW2/A. On this, Javed @ Tony threatened him that he would implicate him and his family members in a false case. Thereafter, he got implicated his son in law Farukh @ Chapta in the present case, who was lifted from Gazipur, Delhi by police and falsely implicated in the present case. His daughter in law was also beaten by the wife of Sonu and State Vs. Farukh @ Chapta & Ors. (SC No.25/2011) Page No.19 of pages 36 mother of Javed @ Tony and a case was registered by her daughter in law Rehana vide FIR No.128/2013 U/s 323/324/34 IPC, copy of which is Mark B. During cross examination he could not tell whether any quarrel or altercation had taken place between Javed @ Tony on one side and Suleman @ Gurda, Farukh @ Chapta and their other associates on other side. He also could not tell whether Javed @ Tony received any injury on his person inflicted by Suleman @ Gurda, Farukh @ Chapta and their associates. He confirmed that complaint mark A, addressed to SHO Seemapuri, DCP Seelampur and Commissioner of Police, Delhi through post was made on 30.06.2011. He denied that he had made the above said complaint mark A to the police authorities only to pressurize Javed @ Tony after the registration of the present case after about eight months. He did not make any complaint to any authority regarding running the brothel house by the mother of complainant Javed @ Tony at her house prior to 30.06.2011 or even thereafter.
12. I have heard the respective rival submissions of Sh. Dharm Chand, Ld. Addl.PP for the State and of Sh. Pankaj Bhushan & Sh. N.K. Gupta respective Ld. Counsels for accused Suleman @ Gurda and Farukh @ Chapta and also of Sh. Gaurav Vashisht, Ld. Amicus Curiae for accused Anwar Hussain and Gabbar @ Gaffar and have also gone through the entire material placed before me.
13. The case of the prosecution can be summarized as under:
(i). On 06.08.2010 at about 11.15 PM, the complainant Javed @ Tony after having his dinner was having walk alongwith his friend Alamin just out of his house.
(ii). Accused Suleman @ Gurda (who was earlier known to the complainant) and Farukh @ Chapta alongwith their two other associates came there.
(iii). Accused Suleman @ Gurda, while asking State Vs. Farukh @ Chapta & Ors. (SC No.25/2011) Page No.20 of pages 36 Javed to close down his Kabari shop, entered into a hot discussion with complainant as he refused to do so, it resulted into loosing of tamper by Suleman @ Gurda.
(iv). Accused Suleman @ Gurda and complainant both were doing the business of Kabari and the accused Suleman was having grudge against the complainant as because of his work, he had sustained losses in his work.
(v). Accused Suleman @ Gurda alongwith one of his two coaccused persons gave several blows on the person of complainant with some pointed object.
(vi). Whereas, accused Farukh @ Chapta alongwith the remaining coaccused (the fourth one) gave several blows on the person of Alamin withe some pointed object.
(vii). Javed & Alamin sustained grievous injuries on their persons.
(viii).The incident was witnessed by one Sonu (the brother of complainant).
(ix). It is further the case of the prosecution that accused Suleman @ Gurda alongwith associates had attacked the complainant Javed with an intent to kill him.
(x). Both the injured were removed to GTB Hospital where they were medically examined and injuries sustained by them were found to be grievous in nature.
(xi). Lateron, all the accused persons were State Vs. Farukh @ Chapta & Ors. (SC No.25/2011) Page No.21 of pages 36 apprehended and arrested in the case.
On the other hand, as per defence brought up by the accused persons, they have been falsely implicated in the case as the mother of the complainant Javed was running a brothel in her house and the people of the locality were opposed to it. The complainant and his mother were particularly annoyed with the accused Suleman @ Gurda and Farukh @ Chapta, as they were raising their voice loudly against them and in order to shut their mouths, they have falsely implicated in this fabricated case.
14. As per contention of Ld. Addl.PP for the State the prosecution is crystal clear. By way of combined reading of the testimonies of PW1, PW2, PW3, PW4, PW9 & PW10, it has been successfully established that the accused persons in furtherance of their common intension to kill the complainant Javed @ Alamin, gave several blows on the vital parts of their bodies with pointed objects and they are liable to be held for commission of offence of attempt to murder, punishable U/s 307/34 IPC. Besides both the injured persons, PW2 Sonu has also fully corroborated with the case of prosecution. The injured had sustained grievous injuries on their vital parts of bodies (which have been detailed in the testimony of PW4, PW9 & PW10 and MLCs Ex.PW4/A & Ex.PW3/A) and they confirm the intention of accused persons. PW1 Javed has categorically named the accused Suleman and Farukh and also specified their roles in the commission of offence and by way of MLC of Javed, it has been proved that he had been attacked on vital parts of his body by them. Further injuries mentioned in the MLC is also corroborative with the ocular evidence. The presence of the accused Farukh and Suleman at the spot and their participation in the crime are established from the testimonies of the material witnesses. In his testimony, the injured has also corroborated with the case of the prosecution. Further the testimonies of PW1, PW2 & PW3 (the witnesses of occurrence including the injured) State Vs. Farukh @ Chapta & Ors. (SC No.25/2011) Page No.22 of pages 36 could not be shacked particularly qua accused Suleman and Farukh as all three have identified them being the two assailants out of four and they have specified their roles in the commission of offence. The injuries are proved on record. The FIR was lodged with promptitude with no time gap for concoction or deliberation in the natural manner and there is no reason as to why the injured will implicate the accused persons falsely. The story set up by the defence is false, fabricated and after thought. Thus the accused persons are liable to suffer the order of conviction against them.
Per contra, according to Ld. Counsel for accused Anwar and Gaffar, there is no evidence on record against them. All the material witnesses of the prosecution have turned hostile qua the accused Anwar and Gaffar and they have not identified them being the two assailants out of four. The most important lacuna in this case on the part of prosecution is that the police has not produced before the court the blood stained clothes of the injured.
According to Ld. Counsel for accused Suleman and Farukh, it is not disputed that there was enmity between complainant and accused Suleman and Farukh as complainant Javed @ Tony and his mother were running a brothel house near the Maszid and father in law of Farukh @ Chapta and accused Suleman objected to the same and due to enmity of aforesaid reasons, they were falsely implicated in the present case. Further there are material contradictions in the testimonies of prosecution witnesses which goes to the roots of the case. PW1 has nowhere stated that when the injuries were being caused to him, Sonu was present there. Even PW2 in his testimony, nowhere talked about the presence of Alamin at the spot. Further even if it is presumed that he was present and had seen the occurrence, then why he did not try to save his brother from the clutches of accused persons or removed him to the hospital. It is surprising and it creates doubt about the presence of Sonu at the spot. Further weapon of offence was neither recovered nor produced in the court. Even it is not State Vs. Farukh @ Chapta & Ors. (SC No.25/2011) Page No.23 of pages 36 specified as to what was the nature of weapon whether it was a knife, dagger or sward? It is fatal.
15. I have given my thoughtful consideration to the rival submissions of both the sides. I have also perused the entire relevant material placed before me.
16. The essential ingredients, required to be proved in a case of offence U/s 307 IPC are as follows:
1. that the death of a human being was attempted;
2. that such death was attempted to be caused by, or in consequence of, the act of the accused.
3. That such act was done with the intention of causing death; or that it was done with the intention of causing such bodily injury as; (a) the accused knew to be likely to cause death; or (b) was sufficient in the ordinary course of nature to cause death;
or that the accused attempted to cause such death by doing an act known to him to be so imminently dangerous that it must in all probability cause (a) death, or (b) such bodily injury as is likely to cause death, the accused having no excuse for incurring the risk of causing such death or injury.
In order to attract application of Section 307, it was necessary to establish that if the victim would have met his death, the offence would have been one under Section 302. An attempt to commit a crime is an act done with intention to commit that crime, and would constitute its actual commission, if not interrupted. To justify a conviction under this section, it was not State Vs. Farukh @ Chapta & Ors. (SC No.25/2011) Page No.24 of pages 36 essential that bodily injury capable of causing death should have been inflicted. Although the nature of injury actually caused may often give considerable assistance in coming to a finding as to the intention of the accused, such intention may also be deduced from other circumstances, and may even in some cases, be ascertained without any reference at all to the actual injury sustained.
It is sufficient if the act was one capable of causing death and there was an intention to cause death. A person commits an offence under Section 307 when he has an intention to commit murder and in pursuance of that intention does an act towards its commission irrespective of the act whether that act was the penultimate act thereof.
An act which is punishable U/s 307 IPC must be an act which is itself capable of causing death.
To justify a conviction under this section, it is essential that bodily injury capable of causing death should have been inflicted.
It depends upon the facts and circumstances of each case, whether the accused had intention to cause death or knew in the circumstances that his act was going to cause death. The nature of the weapon used, the intention expressed by the accused at the time of the acts, the motive for commission of offence, the nature and the size of injuries, the parts of the body of the victim selected for causing the injury and the severity of the blow or blows are important factor that may be taken into consideration in coming to a findings in a particular case the accused can be convicted for an attempt of murder.
In case titled as Sarju Prasad Vs. State of Bihar AIR 1965 SC 843, it was observed that, "circumstances showing strained relationship between the accused persons and the victim, the fact that a grievous injury was the result of a severe blow on State Vs. Farukh @ Chapta & Ors. (SC No.25/2011) Page No.25 of pages 36 the vital part of the body of victim dealt with by a sharp edged knife and that the intestines were coming out of the bound would lead to an inference that it was the intention of the accused to cause the death of the victim. Where the appellant did not inflict any injuries on any vital part of the body, he used only the handle of the Axe in coming of assault, and there was nothing to show that the appellant was inspired by the intention to commit the murder of his wife, the conviction U/s 307 IPC was modified to one U/s 325 IPC."
The accused must do an act with a guilty intention and knowledge and in such circumstances that but for some intervening fact the fact would have amounted to murder in the normal course of events. The intention or knowledge must be such as is necessary to constitute murder.
The state of assailant's mind has to be deduced from the surrounded circumstances and the existence of a motive to cause the death of the victim would be a relevant circumstance. Persistence of the blows given may also be taken into consideration in coming to the question of intention. Thus where the accused gave three stabs successively on the part of the victim causing penetrating injuries, intention to cause death would be inferred. The intention of the assailants can also be gathered from the nature of the weapon used and the part of the body where the injuries are inflected.
17. To bring home the guilt of the accused persons, the prosecution was required to establish that the accused persons present in the court were those four boys, who in furtherance of their common intention caused injuries on the person of Javed @ Toni with some pointed object with such intention or knowledge and under such circumstances that if by the said act, they had caused the death of Javed @ Tony.
As regards the factum of presence of four assailants involved in the occurrence of alleged incident i.e. causing injuries to the State Vs. Farukh @ Chapta & Ors. (SC No.25/2011) Page No.26 of pages 36 complainant Javed, same is corroborated by the respective testimonies of PW1, PW2 & PW3 wherein all of them have clearly deposed to that effect. Further the injuries sustained by the injured/complainant Javed @ Tony and Alamin (another injured) and its nature is proved by the MLCs of injured Ex.PW3/A & Ex.PW3/A and opinions given thereupon by the doctors. It is also established that the injuries sustained by the injured were caused by knife/talwar, as mentioned in MLC Ex.PW4/A, i.e. pointed object as is the case of prosecution.
Now the question arises as to whether the four accused persons present in the court are those miscreants, who had committed the alleged offence?
Firstly, let us begin with the accused Anwar Hussain & Gabbar @ Gaffar.
As per the story of the prosecution, accused Anwar Hussain & Gabbar @ Gaffar were amongst those four assailants, who were involved in the occurrence of inflicting injuries to the injured persons. However, the perusal of the evidence brought on record by the prosecution shows that the role assigned to the accused Anwar Hussain & Gabbar @ Gaffar could not be established on record by the prosecution. PW1 Javed @ Tony, PW2 Sonu and PW3 Alamin in their respective testimonies have clearly refused to identify the accused Anwar Hussain & Gabbar @ Gaffar to be the associates of accused Suleman and Farukh, who had accompanied them and participated in the commission of alleged crime by catching hold the injured persons. Although PW1, PW2 & PW3 were duly cross examined by the prosecution on the point of identity of accused Anwar Hussain and Gabbar @ Gaffar but it remained an exercise in futility. In the circumstances where accused Anwar Hussain & Gabbar @ Gaffar have not been identified by any of the witnesses of occurrence i.e. PW1, PW2 & PW3, as one of the four assailants, so they are entitled for an order of acquittal in their favour. Accordingly, they State Vs. Farukh @ Chapta & Ors. (SC No.25/2011) Page No.27 of pages 36 are acquitted of the charges levelled against them. Their bail bonds and surety bonds stand discharged.
18. Now let us see as to how far the prosecution has been able to establish its case against the accused Farukh @ Chapta and Suleman @ Gurda.
19. To justify conviction under section 307 IPC, it is not necessary that bodily injury capable of causing death should have been inflicted. What the court has to see is whether the act irrespective of its result was done with an intention or knowledge and under circumstances mentioned in section and circumstances mentioned therein. An attempt in order to be criminal need not be the penultimate. It is sufficient in law if there is present an intent coupled with some overt act, in execution thereof.
Out of the 11 witnesses examined by prosecution, PW1 Javed @ Toni (the complainant/ injured) is the most material witness. In his sworn deposition, he affirmed that accused Suleman @ Gurda told his associates to teach him a lesson and thereafter, accused Suleman and Farukh attacked on him alongwith their two associates, who are not present in the court. He further affirmed that his friend Alamin was also attacked by accused Suleman @ Gurda and accused Farukh @ Chapta alongwith two other associates. He categorically stated that accused persons had attacked him with pointed object/knife on various part of his body. He identified accused Suleman @ Gurda and Farukh @ Chapta as the two assailants out of four, who had assaulted him with pointed object/knife and caused injury on his various parts of body. He described the reason for the incident as the accused Suleman was having grudge against the complainant as because of his work, he had sustained losses in his work. This part of his testimony remained unrebutted and uncontroverted in cross examination. This is significant as in the case reported as State of U.P. Vs. Nahar Singh 1998 (III) SCC 561, it has been laid down by Hon'ble Apex Court that "correctness of statement of State Vs. Farukh @ Chapta & Ors. (SC No.25/2011) Page No.28 of pages 36 a witness who is not cross examined on relevant aspect cannot be disputed subsequently."
Besides identification of the accused Suleman @ Gurda and Farukh @ Chapta by the witness in the court and his unchallenged statement, PW2 & PW3 have also corroborated with the testimony of PW1 qua identification of both the accused persons as well as causing of injuries by accused Suleman @ Gurda and Farukh @ Chapta on the persons of injured Javed @ Tony and Alamin.
As regards motive for accused Suleman @ Gurda and Farukh @ Chapta, the same has been duly described by the complainant that as the accused Suleman was having grudge against the complainant as because of his work, he had sustained losses in his work. Whereas the defence taken by the accused Suleman @ Gurda and Farukh @ Chapta that they have been falsely implicated in this case because the complainant Javed @ Tony and his mother were running a brothel house near the Maszid and father in law of Farukh @ Chapta and accused Suleman objected to the same and due to enmity for the aforesaid reasons, they were falsely implicated in the present case, does not have any force. Though DW2 Shauqat Ali had stated that he went to the house of the mother of Javed to made her understand regarding stopping of prostitution activities and he was threated by Javed and her mother while saying that he and his family would be implicated in a false case and a complaint Mark A addressed to SHO Seemapuri, DCP Seelampur and Commissioner of Police was placed on record but perusal of the same reveals that the same pertains to 30.06.2011 and the incident in question had taken place on 06.08.2010. It means the defence is after thought and created one. Even otherwise, it is well known that enmity is double edged sword . It can act both as a motive for commission of crime as well as defence. The testimony of witnesses which is otherwise found credible cannot be discarded on a bald plea of State Vs. Farukh @ Chapta & Ors. (SC No.25/2011) Page No.29 of pages 36 previous enmity more particularly when there is sufficient material available on record against them.
The incident as per complainant occurred at about 11.15 P.M on 06.08.2010 and PCR entry Ex.PW11/A (DD No.107B) establishes that police was informed at 11.45 P.M. Obviously, the complainant who was attacked with pointed object on the vital parts of his body could not have got time or energy to fabricate the case against the accused persons within 30 minutes of the incident. PW4 Dr. Parmeshwar Ram has also corroborated the fact of sustaining injuries by the complainant Javed while deposing that on 07.08.201 at about 12.20 A.M, he had examined the complainant Javed @ Tony vide MLC bearing no.3586/10 Ex.PW4/A and described the injuries sustained by the complainant as under:
(i). Clear lacerated wound measuring 2 cm x 1 cm over left hypochondriac (upper abdomen).
(ii). Clear lacerated wound measuring 2 cm x 1 cm over left lower quadrant of abdomen (lower abdomen).
(iii). Clear lacerated wound measuring ½ cm x ½ cm over epigastrium (just below the chest portion).
(iv). Clear lacerated wound measuring 7 cm over left hand.
(v). Clear lacerated wound measuring 5 cm x 2 cm over left temporal region (scalp).
PW4 Dr. Parmeshwar Ram further stated that on 07.08.2010 at about 12.20 AM he also examined one unkown person vide MLC bearing No.3662/10 and observed the following injuries on the person of injured person:
(i). Clear lacerated wound near oxypital right side of the head measuring 5 cm x 3 cm deep State Vs. Farukh @ Chapta & Ors. (SC No.25/2011) Page No.30 of pages 36 reaching till skull.
(ii).Clear lacerated wound over forehead measuring 3 cm x 0.1cm.
(iii).Incised wound over right pinna (ear) measuring 3 cm.
(iv).Clear lacerated wound behind right pinna measuring 2 cm x 0.1 cm.
(v).Abrasion on forehead, bridge of nose.
(vi).Laceration on upper lip measuring 0.1 cm x 0.1 cm.
(vii).Clear lacerated wound inner aspect upper lip measuring 0.5 cm x 05 cm.
PW9 Dr. Abhinav Singh and PW10 Dr. Narendra opined the nature of injuries on the aforesaid MLCs of the complainant and unknown person Ex.PW4/A & Ex.PW3/A respectively as "grievous". Perusal of the MLCs Ex.PW4/A & Ex.PW3/A the injuries are in consonance of the ocular evidence adduced this case and even MLCs proved on record show that the injuries have been inflicted on the vital parts of bodies of injured persons and nature of injuries caused to the injured persons show the intentions of the accused Farukh @ Chapta and Suleman @ Gurda that they were having intention or knowledge and under such circumstances that if by the said act, they had caused the death of Javed @ Tony.
In Vasant Virthu Jadhav V. State of Maharashtra (1997) 2 Crimes 539 Hon'ble Apex Court held that : ''The important thing to be borne in mind in determining the question whether any offence U/s 307, is made out is the intention and not the injury (even if simple or minor).'' In another case titled as Ansarudin v. State of Madhya Pradesh (1997) 2 Crimes 157, it has been held that: State Vs. Farukh @ Chapta & Ors. (SC No.25/2011) Page No.31 of pages 36 ''It is not necessary that injury, capable of causing death, should have been inflicted. What is material to attract, the provisions of 307 is the guilty intention or knowledge with which the all was done, irrespective of its result. The intention and knowledge are the matters of inference from totality of circumstances and cannot be measured merely from the result.''.
Ld. Defence Counsel has made an endeavour to strengthen his defence by highlighting some contradictions in the testimony of prosecution witnesses but in my considered view the so called contradictions are insignificantly minor and the statement of witnesses cannot be outrightly rejected on that count.
It is settled proposition of law that some contradictions and improvements are bound to occur when the witnesses appear in the court for deposition. This may be due to lapse of time and human memory. In criminal trial, the duty of the court is not to let off the criminals on petty discrepancies and minor contradictions. Ground realities have to be appreciated. Accused should not be allowed the benefit of defective investigation and prosecution lapses cannot be allowed as escape route of criminals and prosecution has to prove its case by broader probabilities as was observed in case of Visveswaran Vs. State and Rajender LaL reported as 2003, AD 350 (SC). The contradictions highlighted by the accused persons are minor in nature and same do not destroy the substratum of the case.
In Sukhdev Yadav and others Vs. State of Bihar reported as JT2000(7)SC597 , it was held as under: "The Court can sift the chaff from the grain and find out the truth from the testimony of the witnesses. The State Vs. Farukh @ Chapta & Ors. (SC No.25/2011) Page No.32 of pages 36 evidence is to be considered from the point of view of trustworthiness and once the same stands satisfied, it ought to inspire confidence in the mind of the court to accept the stated evidence. It is indeed necessary however to note that there would hardly be a witness whose evidence does not contain some amount of exaggeration or embellishment sometimes, there would be a deliberate attempt to offer the same. Sometime, the witnesses in their over anxiety to do better from the witness box detail out an exaggerated account."
"Further it was held in this case that minor variations with regard to place of occurrence would not render the evidence untrustworthy, if otherwise on perusal of evidence in its entirety, it appears to be trustworthy."
Further while appreciating the evidence, court has to take into consideration whether the contradictions/omissions had been of such magnitude that they may materially affect the trial. Minor contradictions, inconsistencies, embellishments or improvements on trivial matters without effecting the core of the prosecution case should not be made a ground to reject the evidence in its entirety. Exaggerations per se do not render the evidence brittle. Mere marginal variations in the statements are not enough to discredit the otherwise cogent and reliable deposition of independent witness. The court is required to assess the trustworthiness of the evidence available on record and if it finds the evidence adduced worthy of being relied upon, then the testimony has to be accepted and acted upon though there may be other witnesses available, State Vs. Farukh @ Chapta & Ors. (SC No.25/2011) Page No.33 of pages 36 who have been examined and produced.
The next plea raised by Ld. Defence Counsel is that in this case brother of injured/complainant Javed @ Tony namely Sonu was shown to be present at the spot and had seen the occurrence and if it is so then why he did not try to save his brother from the clutches of accused persons or removed him to the hospital. This creates doubt about the story of prosecution and it is unsafe to make his statement basis for conviction.
In Rachamreddi Chenna Reddy & Ors. Vs. State of Andhra Pradesh as reported in 1999 (1) AD (SC) 624 , it was held that if, eyewitnesses were related to the injured even then, it was not a ground to discard their testimonies and single eyewitness also would do, provided that the witness passes the test of reliability.
In the case in hand, the injured was the real natural eye witness and has fully supported the prosecution case and narrated the incident correctly. It also stands proved that injured sustained injuries at the given time, date and place and also in manner described by him at the hands of the accused Suleman @ Gurda and Farukh @ Chapta and it finds corroboration in the medical record as well as in the statements of PW4 Dr. Parmeshwar Ram, PW9 Dr. Abhinav Singh and PW10 Dr. Narender. Therefore, there is nothing in their testimonies which makes them unreliable. Furthermore, law as stands today is that testimony of interested witnesses cannot be ignored and only caution is that the court shall carefully scrutinize the statement of the interested witnesses as held in Hari Obula Reddy and Ors. Vs. State of Andhra Pradesh as reported in 1981 SC 82.
Further the last contention as raised by Ld. Counsels for accused Suleman @ Gurda and Farukh @ Chapta is that weapon of offence i.e. pointed object/knife by which injuries have been shown to be inflicted, has not been recovered and produced in the court and therefore, the prosecution case becomes doubtful.
Admittedly, in this case, the weapon of offence i.e. State Vs. Farukh @ Chapta & Ors. (SC No.25/2011) Page No.34 of pages 36 pointed object/knife was not recovered and produced in the court. It has come in the evidence of PW11 SI Manoj Kumar that accused Suleman @ Gurda pointed out the place i.e. Park near DTC Depot, Seema Puri, vide pointing out memo Ex.PW7/G while saying that he had thrown the weapon of offence i.e. knife there and accordingly the said place was searched, but nothing could be recovered.
Now, the question is that whether the nonrecovery of the weapon of the offence is fatal to the prosecution case. In my considered opinion, the nonrecovery of weapon is not fatal to the prosecution case. In this regard, I am supported by the following judgments: The Hon'ble Supreme Court of India in a case titled as Lakhan Sau vs. State of Bihar reported as 2000 Cr.L.J.2959 ( SC) has observed that nonrecovery of weapon does not detract from the case of the prosecution, where the direct evidence is acceptable.
The Hon'ble Supreme Court of India in a case titled as Krishna Mochi Vs. State of Bihar reported as ( 2002)6 SCC81 has observed that recovery of no incriminating material from the accused cannot alone be taken as a ground to exonerate the accused from the charges, more so when their participation in the crime is unfolded in ocular account of the occurrence given by the witnesses, whose evidence has been found to be unimpeachable.
In the present case, the ocular evidence of the PW1, PW2 & PW3 are consistent that the accused Suleman @ Gurda and Farukh @ Chapta had given blows to the injured Javed @ Toni and Alamin with some pointed object/knife and the injuries described by the witnesses are in consonance with the injuries mentioned in MLCs of injured persons, which came as grievous and therefore, in view of the judgments Lakhan Sau vs. State of Bihar reported as 2000 Cr.L.J.2959 ( SC) and Krishna Mochi Vs. State of Bihar reported as ( 2002)6 SCC81 (supra ) non State Vs. Farukh @ Chapta & Ors. (SC No.25/2011) Page No.35 of pages 36 recovery of pointed object/knife is not fatal to the prosecution case. Therefore, the contention of Ld. Defence Counsel is without any merit.
20. In view of the aforesaid, accused Suleman @ Gurda and Farukh @ Chapta are hereby held guilty U/s 307/34 IPC and convicted thereinunder.
21. Now both the convicts i.e. Suleman @ Gurda and Farukh @ Chapta be heard on the point of sentence. (Announced in open Court on 23 September, 2013) rd (RAKESH KUMAR) Addl. Sessions Judge (North East) Karkardooma Courts, Delhi State Vs. Farukh @ Chapta & Ors. (SC No.25/2011) Page No.36 of pages 36