Delhi District Court
State vs . 1 Isab @ Yusuf on 29 June, 2010
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IN THE COURT OF SHRI S.P.GARG, DISTRICT JUDGEIV,
NEW DELHI
UNIQUE I.D. No. 02403R0401612004
S.C.No.10/10/04
State Vs. 1 Isab @ Yusuf
S/o Ishhak Khan,
R/o Village Ladpur, PS Bhiwani,
District Aiwar,
Rajasthan. ...... (A1)
2 Sapaat Khan
S/o Yusuf Khan,
R/o Village, Gadaipur,
Teh.Tijara,
Alwar, Rajasthan .... (A2)
3 Iqbal Khan
S/o Ishhak Khan
R/o Village Ladpur, PS Bhiwani,
District Alwar,
Rajasthan. ....... (A3)
FIR No. 294/04
U/S 302/307/34 IPC
PS: Mehrauli
Date of institution of the case : 06.09.2004
Case received on transfer : 10.03.2010
Date when case reserved for orders : 18.05.2010
Date of announcement of judgment : 29.06.2010
(MORE THAN FIVE YEARS OLD CASE)
State Vs Isab etc Page No1/54
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J U D G E M E N T:
1 Accused Isab @ Yusuf (A1), accused Sapaat Khan (A2) and accused Iqbal Khan (A3) were arrested by the police of PS Mehrauli vide FIR no. 294/2004 and were challaned to the court for trial for the commission of offences punishable u/s 302/307/34 IPC.
(A) FACTS 2 In nut shell, case of the prosecution is as under:
Present case was registered by the police of PS Mehrauli on 3/5/2004 on the statement of the complainant / injured Mohd. Razaq. In his statement to the police complainant Mohd. Razaq disclosed that he along with his family used to reside at H.No. 156, near Badi Masjid, Chandan Hola, New Delhi and was running a milk diary at Fathehpur. On 3/5/2004 he was going on his scooter no. DL 5SP0426 to his diary. His father Niaz Mohd was sitting State Vs Isab etc Page No2/54 3 as pillion rider. When they reached at Bandh Road in front of Gyan Farm House, at about 4 pm, one Maruti Zen bearing no. HR35A8753 which was being driven in a rash and negligent manner hit his scooter from behind as a result of which he and his father fell away at some distance. The driver of the car was known to him. The said car was being driven by A1. Two other persons were also sitting in the said car. He and his father sustained injuries. They were removed to the hospital by a public person. The car driver fled away from the spot along with the car.
3 On 3/5/2004 ASI Umrav Singh was posted at PS Mehrauli. On receipt of DD No. 36B, he along with Ct. Rajender Singh reached at the spot i.e., Bandh Road, Chandanhaula, Gyan Farm House, Mehrauli where he found one two wheeler scooter bearing no. DL5SP0426 lying on the road in accidental condition. No eye witness State Vs Isab etc Page No3/54 4 was available at the spot. On inquiry he came to know that the injured had been taken to Safdarjung Hospital. He left the constable at the spot and went to hospital where he found Niaz Mohd and Mohd. Razak admitted in the Hospital. He moved an application to record statement of the complainant. Doctor declared both the injured fit for statement. ASI Umrav Singh collected the MLC's of injured Niaz Mohd and Mohd. Razak and thereafter recorded the above statement of Mohd. Razak. Thereafter ASI Umrav Singh came back to the spot and made his endorsement over the statement of the complainant and sent the rukka through Ct. Rajender and got the FIR u/s 279/337 IPC registered. He seized the scooter at the spot. He also recorded the statement of the injured Niaz Mohd. 4 Efforts were made to search the accused persons but they could not be traced. On 6/5/2004 vide DD State Vs Isab etc Page No4/54 5 No. 14B information was received that injured Niaz Mohd had expired. ASI Umrav Singh recorded brief facts of the case and prepared death report. He moved an application for conducting postmortem of the deceased Niaz Mohd. Dr. Deepak Mathur conducted postmortem on the dead body of the deceased Niaz Mohd on 6/5/2004. After the postmortem, the dead body was released to the legal heirs of the deceased. Section 304 IPC was added in the FIR. 5 On 6/5/2004 SI Surender Kumar was posted as Incharge PP, IGNOU PS Mehrauli. Investigation of the case was handed over to him. He recorded statements of the witnesses namely Mehboob Khan, Gore Khan, Shafi and Hakim Khan. Since these witnesses had disclosed that this was a case of intentional accident, SI Surender Kumar prepared brief statement of facts and sought opinion from the prosecution. The Chief Prosecutor gave his opinion State Vs Isab etc Page No5/54 6 and thereafter in consultation with the SHO section 302/307/34 IPC were added to the FIR on 14/5/2004. 6 On 11/6/2004 on the basis of the secret information, A1 was arrested from near Chattarpur Mandir. He was interrogated and his disclosure statement was recorded. He was found in possession of a Maruti Zen car bearing no. HR35A8753 which was seized vide necessary seizure memo. Mechanical Inspection of the scooter and Zen car was got conducted on 14/6/2004 from Sh. Shadi Lal. IO collected the Mechanical Inspection Report. He got prepared the scaled site plan. He also obtained the postmortem report and the nature of injuries of the injured on the MLCs from the Hospital.
7 On 27/7/2004 A2 and A3 surrendered before the court. SI Surender Kumar arrested both of them and conducted their personal search vide personal search State Vs Isab etc Page No6/54 7 memos. With the permission of ld. MM they both were interrogated and their disclosure statements were recorded. 8 During further investigation the IO recorded the statements of the concerned witnesses at different stages of investigation. He also collected the relevant documents showing previous litigation between the parties. After completion of the investigation the police of PS Mehrauli filed challan against A1, A2 and A3 for the commission of offences punishable u/s 302/307/34 IPC in the court of ld. MM.
(B) COMMITAL OF CASE 9 After complying with the provisions of sections 207 and 208 Cr.P.C, the Ld. M.M committed the case to the Court of Sessions.
(C) CHARGE 10 After hearing Ld. Addl. P.P. for the State and State Vs Isab etc Page No7/54 8
Ld. Counsel for the accused persons, charge u/s 302/34 IPC was ordered to be framed against the accused persons vide order dated 4/6/2005. Subsequently charge u/s 307/34 IPC was also ordered to be framed against the accused persons vide order dated 6/8/2005. Accused persons pleaded not guilty to the charges framed against them and claimed trial.
(D) PROSECUTION EVIDENCE 11 To prove its case against the accused persons, the prosecution examined in all 30 witnesses, namely PW1 Gore Khan, PW2 Mehboob Khan, PW3 Hakim Khan, PW4 Smt. Fatima, PW5 Mohd. Rafiq, PW6 Sh. Surender Kumar, PW7 Sh. Ikrajuddin, PW8 Mohd. Razaq, PW9 Mohd. Hanif, PW10 SI Madan Pal, PW11 Dr. Sachin Parhad, PW12 Sh. Shadi Lal, PW13 Insp. Brahm Prakash, PW14 Mohd. Israil, PW15 H.Ct. Ratan Prabha, PW16 Ct. Mahesh, PW17 Dr. State Vs Isab etc Page No8/54 9 Rekha Tirkey, PW18 H.Ct. Rajender Singh, PW19 Mobin, PW20 Insp. M.L.Sharma, PW21 ASI Om Prakash, PW22 H.Ct. Ashok Kumar, PW23 Ct. Mahavir Singh, PW24 Dr. P.Ramkrishna, PW25 Ct. Virender Kumar, PW26 ASI Umrav Singh, PW27 SI Surender Kumar, PW28 Dr. Deepak Mathur, PW29 Sh. Iqbal Khan and PW30 H.Ct. Jai Pal Singh.
(E) STATEMENT OF ACCUSED PERSONS & DEFENCE.
12 Statements of the accused persons were recorded u/s 313 Cr.P.C. They denied their involvement in the commission of the offence. Their plea is that they have been falsely implicated in this case. There was some litigation pending between the parties as a result of which this false case was made out against them with a view to put pressure and persuade them to withdraw the said State Vs Isab etc Page No9/54 10 cases. No such incident / accident had taken place. Their vehicle was not involved in the accident and there was no fault on their part.
13 None of the accused persons preferred to lead any evidence in defence.
(F) ARGUMENTS OF LD. ADDL. P.P. 14 I have heard Ld. Addl. P.P. for the State and Ld. Counsel for the accused persons and have gone through the evidence adduced on record.
15 Contention of Ld. Addl. P.P. for the State is that the prosecution has proved its case against the accused persons beyond reasonable doubt. The accused persons intentionally hit the scooter of the complainant from behind to kill them. There was previous enmity between the complainant family and the accused persons and earlier also the accused persons had threatened to kill the State Vs Isab etc Page No10/54 11 complainant and his family members. Only on 2/5/2004 the accused persons had assaulted the family members of the complainant and had broken the window panes by pelting stones. The matter was reported to the police. However the police did not take any action. There is nothing to disbelieve the positive testimonies of the prosecution witnesses. A1 was specifically named to have caused this accident soon after the occurrence.
(G) ARGUMENTS OF LD. DEFENCE COUNSEL. 16 On the other hand, Ld. defence Counsel for the accused persons has vehemently argued that the
prosecution has failed to establish guilt of the accused persons beyond reasonable doubt. There are material contradictions, discrepancies and improvements in the testimonies of the prosecution witnesses which make it unsafe to convict the accused persons. The accused State Vs Isab etc Page No11/54 12 persons were relatives of the complainant and were known to them prior to the incident. Complainant Mohd. Rzaq in his statement made to the police at the first instance did not name A2 and A3. He did not state if the accused persons had intentionally hit the scooter of the complainant from behind to cause their death. Only after three days of the incident, on 6/5/2010, statements of Gore Khan and Mehboob Khan were fabricated and in connivance with the complainant party the police after seeking legal opinion from the prosecution falsely registered the case u/s 302/307/34 IPC. Gore Khan in his deposition before the court did not support the prosecution at all. There is no material on record to show if the accused had ever uttered to kill the complainant or his father. The incident dated 2/5/2004 has also not been proved on record. No case was registered by the police against the accused persons for the incident State Vs Isab etc Page No12/54 13 dated 2.5.2004. There was previous enmity due to strained relations between the parties on account of marriage of Rashmi, sister of A1 with the brother of the complainant. Since the parties were on enimical terms, the complainant falsely implicated the accused persons in this case. Prosecution has further failed to prove if the accused persons had caused accident while driving the vehicle in question in a rash and negligent manner. The complainant in his deposition before the court did not state if A1 was driving the vehicle in a rash and negligent manner. Mere driving at a fast speed is not sufficient to infer that A1 was driving the vehicle in a rash and negligent manner.
(I) FINDINGS 17 I have considered the arguments of the learned Additional P P for the State and learned counsel for the accused persons and have scrutinized the testimonies of State Vs Isab etc Page No13/54 14 the prosecution witnesses adduced on record. Case of the prosecution is discussed as under.
(a) ADMITTED FACTS 18 Death of deceased Niaz Mohd., father of complainant Mohd.Razaq in the incident has not been disputed by the learned counsel for the accused persons. His only plea is that the accused persons are not instrumental in causing death of the deceased Niaz Mohd. Their vehicle was not involved in the incident in which deceased Niaz Mohd. sustained injuries and succumbed to the injuries subsequently. Similarly injuries on the person of Mohd. Razaq have not been denied by learned counsel for the accused persons.
19 It is also not disputed that Rahimi sister of A1 was married to PW5 Mohd.Rafiq brother of complainant Mohd.Razaq and son of deceased Niaz Mohd. It is also not disputed that the relation between Mohd.Rafiq and Rahimi had State Vs Isab etc Page No14/54 15 become strained in the year 1999. A suit was filed by Rahimi in Tijara, District Alwar. A panchayat was held and PW5 Mohd. Rafiq had brought back Rahimi with him. It is also not disputed that thereafter a daughter was born to Rahimi. Again there was bitterness in the relationship between Mohd. Rafiq and Rahimi as a result of which divorce took place between the two. It is also a matter of record that in the year 2003, a case u/s 498A/406/34 IPC bearing FIR No.130/03 against the deceased and his family members was filed. Rahimi also filed petition u/s 125 Cr.P.C. The deceased and his family members got anticipatory bail in the case FIR No.130/03 u/s 406/498A IPC.
20 It is also not disputed that earlier on the statement of PW8 Mohd.Razaq a case u/s 279/337 IPC was registered. Subsequently on the death of Niaz Mohd., section 304A IPC was added. It is also a matter of record that subsequently the State Vs Isab etc Page No15/54 16 complainant and his associates had protested against the police for not registering the case under appropriate section. The investigation was transferred to SI Surender Kumar on 6.5.2004. He recorded statements of Mehboob Khan, Gore Khan, Shafi and Hakim Khan. On the basis of their statements recorded u/s 161 Cr.P.C., PW 27 SI Surender Kumar sought legal opinion from the prosecution. Chief Prosecutor (South District) gave legal opinion Ex.PW27/B. Thereafter PW 27 SI Surender Kumar in consultation with the SHO, added section 302/307/34 IPC to the FIR on 14.5.2004.
(b) INCIDENT DATED 2.5.2004 21 Case of the prosecution is that on 2.5.2004 also theSE accused persons had reached at the residence of the deceased and had criminally intimidated them. The accused persons has denied this allegation of the prosecution witnesses. However, on scanning the testimonies of the State Vs Isab etc Page No16/54 17 prosecution witnesses it stands established that on 2.5.2004 the accused persons had gone at the residence of the deceased and had broken the window panes and had extended threats to them.
22 Material testimony on this aspect is that of PW 4 Smt. Fatima. She in her testimony before the court testified that on 2.5.2004 she was standing infront of her house at about 8 or 9 p.m. She heard noise coming out of the house of the deceased. She went there and saw the accused persons standing there. A1 was holding revolver in his hand. She made hue and cry after seeing the revolver in the hand of A1. One Ikrajuddin also reached there. After hearing commotion the other villagers also assembled there. Accused persons ran away from there threatening that they would kill them afterwards. The police arrived there immediately and she made her statement to the police.
State Vs Isab etc Page No17/54 18 23 In the cross examination the witness stated that the police had recorded her statement on that very day when she had seen the incident. Police had stayed at the spot for few minutes. She expressed her inability to disclose as to which of the accused had uttered the threatening words. She also admitted that the accused had not fired from the revolver which he was carrying at that time. She however clarified that the revolver was in the right hand of the accused. She denied that no such incident had taken place and she had given false statement at the instance of the complainant party. 24 Overall testimony of this independent witness reveals that she had categorically named accused persons to be present at the residence of deceased on 2.5.2004 at about 8 or 9 p.m. This witness had no ulterior motive to falsely concoct incident that took place on 2.5.2004. In the cross examination, no suggestion was put to this witness by the State Vs Isab etc Page No18/54 19 accused persons that they were not present in village Chandan Hoaa at that time or that they were present in their own village on that day.
25 PW7 Ikrajuddin has also supported the prosecution and has corroborated the version given by PW 4 Fatima. PW 7 Ikrajuddin also deposed that on 2.5.2004 at about 8 p.m he was going to buy Pepsi from a shop near the house of the deceased. He saw three persons standing near the house of the deceased and they were abusing the deceased. Deceased Haji Niaz was inside t he house. A1 was having a revolver in his hand. A2 and A3 were throwing stones and were braking the glass panes of his house. He then went to the wife of Haji Niaz who was in her other house. She informed her son. The witness further testified that he informed the police on 100 number. When he returned after 1015 minutes, there was none except lady Fatima. State Vs Isab etc Page No19/54 20 26 In the cross examination the witness stated that his statement was recorded by the police at his residence after 2 or 3 days. He also stated that it might be possible that the police had recorded his statement on 18.5.2004. The distance between his house and that of the complainant was less than half k.m. One lady Fatima was also an eye witness. The witness further stated that he had called the PCR from the land line number which was 26652928. The witness denied the suggestion that no such incident had taken place and he had given false statement at the instance of the complainant party being their relation.
27 Again material facts disclosed by this material witness have remained unchallenged in cross examination. Again the accused persons did not deny their presence at the spot at that time. They did not explain the purpose for which they had visited the house of the deceased. No suggestion State Vs Isab etc Page No20/54 21 was put to this witness in the cross examination that A1 was not armed with revolver or that they had not broken the window panes of the house of the deceased.
28 PW6 Surender Kumar in his testimony before the court stated that he had reached at the spot at about 9.30 p.m when he was called on telephone by a person who was also known as doctor. He was told by the caller that there was a quarrel and window and door glasses had got broken. This witness proved the photographs taken by him at the spot which are Ex.PW6/A1 to A9. The negatives of the same are Ex.PW6/A10 to A18. This witness was not cross examined by learned counsel for the accused persons. Taking of photographs at the place of incident has not been controverted in the cross examination. The photographs Ex.PW6/A1 to A10 proved on record by this witness amply show that the window panes of the house of the deceased State Vs Isab etc Page No21/54 22 were broken and that finds reflection in the photographs. The photographs corroborate the version given by PW 4 Fatima and PW7 Ikrajuddin.
29 Material testimony is that of PW13 Inspector Brahm Prakash who had reached at the spot at about 9.30 p.m on receipt of DD No.23A, Ex.PW13/A. In his deposition before the court, this witness testified that on 2.5.2004 he along with Constable Shubhram reached Village Chandanhola near big mosque. He also reached the house of the deceased and found the glass panes of the house broken. Deceased gave his statement to him and disclosed that Yusuf Khan brotherin law of his younger son namely Mohd. Rafiq had come to his house in his car at about 9 p.m. He (deceased) closed the door of the house. Yusuf Khan had broken the glass panes of his house with stones. The statement given by the deceased was Ex.PW13/B. He also stated that on the basis of State Vs Isab etc Page No22/54 23 statement, he recorded that that a case u/s 427 was made out and he mentioned these facts in his arrival entry to police station copy of which is Ex.PW13/C. 30 In the cross examination, the witness stated that he had reached at the village Chandanhola i.e. at the house of the deceased at about 10.15 p.m. D D No.23A was received by him at about 9.30 p.m. Niaz Mohd. (since deceased) alone met him there. He stayed there for about one hour. He recorded the statement of Niaz Mohd. on 2.5.2004 at about 10.30 p.m. 31 Testimony of this witness categorically proves that the incident as narrated by the prosecution witness had taken place outside the house of deceased on 2.5.2004 at about 9 p.m when the accused persons had reached there and had broken the window panes of the house of the deceased. The accused persons did not adduce any witness in their defence State Vs Isab etc Page No23/54 24 to falsify statements of prosecution witnesses on this aspect. They did not adduce any witness in defence to show their presence at some other place on that day. Other prosecution witnesses have also testified about this incident though they had reached at the spot after coming to know about the incident.
(C) INCIDENT DATED 3.5.2004ACCIDENT 32 On scrutinizing the case of the prosecution it further stands established that on 3.5.2004 A1 while driving his Maruti Zen No.HR 35A8753 hit the scooter No.DL5SP 0426 being driven by PW8 Mohd. Razak with deceased Niaz Mohd. Sitting as pillion rider. It further stand established that due to the hitting of the scooter from behind by A1 while driving his Maruti Zen No. HR35A8753, complainant Mohd. Razaq and deceased Niaz Mohd. fell down and sustained injuries. Deceased Niaz Mohd succumbed to the injuries on State Vs Isab etc Page No24/54 25 6.5.2004. There is no substance in the plea of the accused persons that no such incident took place with their vehicle or that they have been falsely implicated in this case. 33 Present case was registered by the police of Police Station Mehrauli on the statement of PW8 Mohd.Razaq on 3.5.2004. In his statement Ex.PW8/A made by the complainant Mohd. Razaq at the earliest to the police, he categorically named A1 to be driving Maruti Zen No.HR 35A 8753. He further gave graphic detail in his statement Ex.PW8/A as to how he along with his father was going on his scooter No.DL5SP0426 and when he reached at about 4 p.m at Band Road near Gyan Farm House, the car being driven by A1 in a rash and negligent manner hit his scooter from behind as a result of which he and his father fell down at some distance. The car driver was known to him prior to the incident and his name was A1. The complainant further State Vs Isab etc Page No25/54 26 disclosed that there were two other persons sitting in the car. One public person removed him and his father to the hospital. The car driver fled away from the spot.
34 The incident took place at about 4 p.m on 3.5.2004. The rukka was sent at about 8.30 p.m. on that very date after the statement of complainant was recorded at the hospital. Since the rukka was sent without any inordinate delay, there was least possibility of the complainant or the police to concoct a false story in such a short period.
35 While appearing as PW8, complainant Mohd.Razaq proved the version given by him to the police in his statement Ex.PW8/A. He testified that on 3.5.2004 at about 4 p.m he along with his father Niaz Mohd was going to his shop on his two wheeler scooter No.DL5SP0426. When they reached at Band Road near Gyan Farm House, a Maruti Zen No.HR 35A 8753 came from their back side at a very fast speed and hit his State Vs Isab etc Page No26/54 27 scooter from his back side. Due to the impact he and his father fell down at a distant place. He knew the driver of the car and he was A1 present before the court. Two more persons i.e. A2 and A3 were sitting in the car. He did not know them at that time. Accused persons took 'U' turn and fled away. Public persons took them to Safdarjung hospital. 36 In the cross examination the witness stated that after the incident, PW2 Mehboob Khan had taken him and his father to the hospital in his jeep. One labour of Mehboob Khan was also seated in the said Jeep. His supplementary statement was recorded by the police after 2 or 3 days. He was discharged from the hospital on 3.5.2004. Some relations had come to meet his father at the hospital. Mehboob Khan and Gore Khan remained in the hospital for 23 hours. The witness denied the suggestion that he was falsely deposing due to family enmity between his father Niaz Mohd and State Vs Isab etc Page No27/54 28 accused persons. The witness denied the suggestion that it was a case of accident.
37 Entire testimony of this witness reveals that the Maruti Zen No.HR 35A8753 being driven by A1 had hit the scooter being driven by this witness from behind. Material facts stated by this witness in his examinationinchief regarding the accident have remained unchallenged in cross examination. Accused persons did not put any suggestion to this witness in the cross examination that they were not present at the place of occurrence at the time of accident or that the Maruti Zen No.HR 35A8753 was not being driven by A1 in a rash or negligent manner or that it had not hit the scooter of the witness. The witness had sustained grievous injuries on his persons. His father Niaz Mohd had also sustained multiple injuries due to the impact and had succumbed to the injuries after 3 days of the incident. Being State Vs Isab etc Page No28/54 29 an injured and the victim, the complainant Mohd. Razaq is not imagined to concoct a false story to falsely implicate the accused persons just because there was some previous strained relations between the accused persons and their family. Being an injured and also having lost his father in the incident, complainant Mohd. Razaq is not expected to falsely rope in the accused persons and to let the real culprits go scot free. The complainant must be interested to bring the real offenders to book who had caused injuries on his person and because of whose negligence his father had died an un natural death. The complainant was conscious after the incident and had narrated the occurrence to the police in his statement Ex.PW8/A. 38 PW3 Hakim Khan is another witness who has corroborated the version given by PW Mohd. Razaq. PW3 Hakim Khan in his deposition before the court testified that on State Vs Isab etc Page No29/54 30 3.5.2004 at about 3.45 or 4 p.m he was coming on his scooter towards his village after purchasing ration goods for his shop. When he reached Band Road and was approaching Gyan Farm House, he saw Mohd. Razaq coming on his scooter and his father Niaz Mohd. was the pillion rider. Thereafter he saw that one cherry colour Maruti Zen came from behind the scooter and hit the scooter of Razaq from behind with great force. The Maruti Zen was being driven by A1 present before the court. As a result of the impact, both Mohd. Razak and Niaz Mohd fell down. Niaz Mohd. lost his senses while Mohd.Razaq started bleeding. Thereafter A1 took 'U' turn and escaped from there in his Maruti Zen. He further stated that besides A1, his younger brother was also sitting on the front seat of the car. The witness pointed out towards A3 as the person who was sitting on the front seat along with A1. One another person was also sitting on the rear seat of the State Vs Isab etc Page No30/54 31 maruti zen but he could not identify him. The witness further stated that one Mehboob Khan who was following the vehicle of the accused also reached there and other public persons also gathered and the injured persons were taken in the gypsy of Mehboob Khan to hospital.
39 In the cross examination, the witness admitted that he did not take the deceased or injured Mohd.Razak to hospital after the incident. Police had recorded his statement at his residence after 3 days of the occurrence. He knew all the accused persons except one prior to the incident. The witness denied the suggestion that the incident was not witnessed by him or that false statement was given by him at the instance of complainant party.
40 The entire testimony of this witness reveals that no material contradictions have been elicited in the cross examination to discard the testimony of this independent State Vs Isab etc Page No31/54 32 public witness. Presence of the witness at the spot has not been controverted in the cross examination. No illwill has been imputed to this witness to falsely depose against the accused persons. The facts disclosed by this witness are in consonance with the case of the prosecution. MLC of Mohd. Razak Ex.PW11/A reveals that injured Mohd. Razaq was removed to Safdarjung hospital by PW Mehboob Khan and his name finds mentioned in the MLC.
41 PW2 Mehboob Khan who removed the injured persons to hospital after the incident also stated that he had followed the vehicle of the accused in his gypsy and had seen A1 hitting the scooter which was being driven by complainant Mohd.Razaq. As a result of the impact of the Maruti Zen car of A1, both Mohd. Razaq and Niaz Mohd fell down. He stopped his vehicle. A1 took 'U' turn and escaped towards Gadaipur. Two more persons were sitting in the maruti zen State Vs Isab etc Page No32/54 33 but he could not identify them. He removed both the injured to Safdarjung Hospital in his vehicle. One Hakimalik and other passersby had helped him in taking the injured to hospital. 42 In the cross examination, the witness stated that he had taken injured to hospital and reached t here at about 4 p.m. No other person was with him when he had removed the injured to hospital and reached there at about 4 p.m. Niaz Mohd was unconscious. Both were having bleeding injuries. Blood had also fellen down on his vehicle as well as on his clothes. He met the duty constable who recorded his name and address. The witness admitted that he did not note down the number of the vehicle but was able to remember the same orally.
43 Again no suggestion was put to this witness in the cross examination that Maruti Zen No.HR 35A8753 being driven by A1 never reached at the spot or that it did not hit the State Vs Isab etc Page No33/54 34 scooter of the complainant from behind.
44 PW 12 Shadi Lal had conducted mechanical inspection of both the vehicles on 14.6.2004. In his deposition before the court, he testified that on 14.6.2004 he was called by the IO for mechanical inspection on a scooter and a maruti zen car at P.S Mehrauli. He conducted the mechanical inspection of the scooter bearing No.DL 5 SP 0426 make Bajaj and prepared his mechanical inspection report Ex.PW12/A, The scooter had some damages which was mentioned by him in detail in his report. The witness further stated that he also conducted mechanical inspection of Maruti Zen No.HR 35A8753 and his mechanical inspection report is Ex.PW12/B. The Zen car had some damages which was mentioned by him in detail in his report. 45 There is nothing to disbelieve the testimony of this independent expert witness who has no nexus whatsoever State Vs Isab etc Page No34/54 35 with the complainant to falsely fabricate mechanical inspection reports. The accused persons have failed to explain as to how and under what circumstances their Maruti Zen No.HR 35A8753 got damaged and if so when and where. Silence on the part of the accused persons lends credence to the prosecution version that it was the Maruti Zen No.HR 35A 8753 which had hit the scooter of the complainant on 3.5.2004. Mechanical inspect4ion reports prepared by PW12 Shadi Lal are material incriminating circumstances to point an accusing finger against the accused persons. 46 PW11 Dr.Sachin Prashad who had medically examined complainant Mohd. Razaq and had prepared his MLC Ex.PW11/A also testified that the nature of injuries sustained by Mohd. Razaq were grievous and caused by blunt object., There was alleged history of road traffic accident. PW17 Dr.Rekha Tirkey proved the MLC Ex.PW17/A prepared State Vs Isab etc Page No35/54 36 by Dr.Deepa Nebhnani who had medically examined Niaz Mohd.
47 PW28 Dr.Deepak Mathur who conducted post mortem on the dead body of the deceased proved his report Ex.PW26/F. In the cross examination the witness volunteered to add that the deceased was dragged for some distance along with the vehicle. The witness denied the suggestion that injuries found on the person of the deceased were possible if a person fell on the metalled road from a fast moving scooter. 48 From the ocular testimony of the prosecution witness coupled with circumstantial evidence and supported by medical evidence, it stands established that it was the vehicle Maruti Zen No.HR 35A8753 being driven by A1 which had hit the vehicle of the complainant and had caused injuries on the person of the complainant and his father. It further stands established that the speed of the vehicle was very fast at the State Vs Isab etc Page No36/54 37 time of accident as a result of which A1 while driving the Maruti Zen was unable to have control and hit the scooter from behind. The impact was so forceful that the complainant and his father fell down at some distance. There was dragging for some distance after the scooter was hit by the vehicle being driven by A1. All these facts establish beyond doubt that the vehicle was being driven by A1 at a very fast speed. The accused has failed to explain the mitigating circumstances to show if the accident was not a result of his fast driving of the vehicle or that there was contributory negligence on the part of the complainant/deceased or that he had taken all the precautions to avoid t he accident. The accused rather has taken a plea that it was not his vehicle which had hit the scooter of the complainant. This false explanation by A1 shows his guilty conscious. The accused had also not stopped the vehicle at the spot to remove the injured to State Vs Isab etc Page No37/54 38 hospital and had rather fled away from the spot. Admittedly the injured and the deceased were relation of the accused and were known to them. Despite that, A1 did not bother to remove the injured persons to the hospital after the incident. There is thus no substance in the plea of learned defence counsel that mere fast speed of the vehicle is not enough to infer that the accused was rash and negligent in driving the vehicle. I am of the view that A1 was rash & negligent in driving his vehicle and had hit the complainant from behind while so driving. and caused '' grevious'' injuries on the person of Razaq and Niaz. Niaz subsely succumbed to the injuries sustained by him.
(d) INCIDENT DATED 3.5.2004 --
WHETHER MURDER?
49 Main emphasis of the prosecution is that A1 in
furtherance of common intention with A2 and A3 had hit the scooter of the complainant intentionally to commit their State Vs Isab etc Page No38/54 39 murder. There is complete denial by the accused persons on this aspect.
50 On scanning the testimonies of the prosecution witnesses and other material on record I am of the view that the prosecution has failed to prove beyond doubt that the accused persons in furtherance of their common intention had ''intentionally'' hit the scooter of the complainant with a view to commit their murder. As observed above, present case was registered by the police initially u/s 279/337 IPC on the statement of complainant Mohd. Razaq. At that time complainant Mohd. Razaq had given detailed version of the incident and had not at all narrated if the accused persons had ''intentionally'' hit his scooter to murder them. Even subsequent to the making of the statement Ex.PW8/A, till the death of his father on 6.5.2004, complainant Mohd. Razaq never came forward to express his apprehension regarding the State Vs Isab etc Page No39/54 40 ''intention'' of the accused persons to commit their murder. After the death of Niaz Mohd on 6.5.2004 again section 304A IPC was added and there was no complaint by the complainant to the police or higher authorities that the police had not registered the case under appropriate sections. Only when deceased Niaz Mohd expired on 6.5.2004 and the investigation was taken over by PW28 SI Surender Kumar, the complainant party protested against the police for not registering the FIR under appropriate sections. Thereafter SI Surender Kumar recorded statements of some witnesses including PW Gore Khan and sought legal opinion from learned Public Prosecutor. After getting legal opinion from the Public Prosecutor, section 302/307/34 IPC was added to the FIR and the accused persons were subsequently arrested. 51 While appearing as PW 1 Gore Khan on whose statement, Sections 302 & 307 IPC were added during State Vs Isab etc Page No40/54 41 investigation did not at all support the prosecution. In his deposition as PW 1, Gore Khan merely stated before the court that he had heard in the village that A1 had caused an accident with Mohd Razaq and Niaz Mohd . He did not see the accused persons prior to the accident nor he had heard anything. This witness as got declared hostile by learned Additional P.P and was cross examined. In the cross examination the witness denied the suggestion of the Ld. Addl. P P that he had made a statement to the police that on 3.5.2004 A1 and A2 were standing near their Maruti Zen and on seeing the complainant Mohd. Razaq and his father Niaz Mohd on their scooter, A1 told the coaccused that he would kill Mohd.Razaq and Niaz Mohd and thereafter A1 took the driving seat of Maruti Zen while A2 and A3 sat in the rear seat and thereafter A1 drove towards the scooter of Mohd. Razaq and Niaz Mohd. The witness further denied the State Vs Isab etc Page No41/54 42 suggestion of learned Addl. P P that he had also told that fact to PW Mehboob Khan who went after the accused in his gypsy. He denied the suggestion that he was won over by the accused persons.
52 PW 1 Gore Khan did not at all support the case of the prosecution that the accused persons had declared to his hearing that they would kill the complainant and his father. The statement of this witness recorded by the police during investigation after considerable delay does not inspire confidence. Had this witness heard the accused persons declaring their intention to murder the complainant and his father, he must have informed the police soon after the incident. This witness did not report to the police and kept mum for number of days. He even did not inform the complainant at the hospital about this threat of the accused persons. Had such a threat been extended by the accused State Vs Isab etc Page No42/54 43 persons to the hearing of the witness, he must have informed the complainant or the police soon after the incident. Learned Addl. P P did not cross examine the witness as to why this witness remained silent for number of days for making altogether a different statement to the I.O after the death of the deceased. There is no possibility of this witness being won over by the accused persons as this witness was known to the complainant party and was residing in their village. 53 PW 2 Mehboob Khan merely stated that he was informed by PW 1 Gore Khan about the threat extended by the accused persons to commit murder of the complainant and his father and on that he had given chase to the maruti zen being driven by A1 in his gypsy. Testimony of this witness on this aspect is not admissible being hearsay evidence. The accused persons did not utter any threat to commit murder of the complainant or his father to the hearing of this witness State Vs Isab etc Page No43/54 44 Mehboob Khan. He had allegedly come to know about the alleged threat from PW 1 Gore Khan who in his deposition before the court did not state so. PW 1 Gore Khan did not state if he had informed about the threat to PW 2 Mehboob Khan.
54 Prosecution has filed on record one complaint dated 7.5.2004 bearing signature of complainant Mohd. Razaq to ACP Houz Khas. This complaint has not been proved on record. However, even if this complaint dated 7.5.2004 filed by the complainant Mohd. Razaq is considered it does not prove intention of the accused persons to commit murder of the complainant and his father. In this complaint complainant had given entirely different version in para No.7 and 8. In para 8 of the complaint, complainant Mohd. Razaq stated that on 3.5.2004 at about 4 p.m. he along with his father was going on his scooter No.DL 5 SP 0426. On seeing them going on State Vs Isab etc Page No44/54 45 his scooter, A1 along with his brother A3 and son A2 followed them in his Maruti Zen No. HR 35A8753 with the intention to kill him and his father at the instance of his brother inlaw Yusuf. On the way, he (A1) arrogantly remarked in the presence of Gore Khan that he would kill them. Gore Khan requested them not to do so but they did not care for his advice. On seeing that, Gore Khan asked Mehboob Khan to go in his maruti gypsy to save them. Had this version been there, complainant must have narrated the same in his statement Ex.PW8/A made to the police at the first instance on 3.5.2004.
55 There is no other material on record to infer if the accused persons had intended to commit murder of the complainant or his father by hitting their scooter from behind with their car. The accused persons admittedly had not run over the complainant and his father in the incident. The State Vs Isab etc Page No45/54 46 accused persons had not repeated the act of hitting the scooter. They had not stopped at the spot to ensure that both the injured persons had died due to the impact of the incident. None of them had alighted at the spot to find out if any of them had died. Complainant had sustained only grievous injuries due to the accident. Deceased had sustained some injuries and because of the injuries coupled with septicemia as reflected in the post mortem report, he expired in the hospital after three days of the incident. All these facts show that the accused persons had not intended to commit murder of the complainant or his father or to cause such bodily injuries sufficient to cause their death in the ordinary course of nature.
56 Besides above, the circumstances on record do not show if the accused persons were nurchuring grudge to the extent of causing death of the deceased and his son. Even State Vs Isab etc Page No46/54 47 on 2.5.2004 when the accused persons had reached at the residence of the deceased at about 8 or 9 p.m they had not attempted to cause any injuries to the deceased or his family members. Though A1 was allegedly in possession of a revolver at that time, there is nothing on record to show if he fired with the revolver to make an attempt to commit murder of the deceased. Even prior to 2.5.2004 nothing is there on record to show if the accused persons had ever extended threats to the complainant or his family members to commit their murder. Sister of A1 was divorced long back. There is nothing on record to show if at that time the accused persons had extended any threat or had attempted to cause any injuries to the complainant or his family members. Rather it has come on record that a case u/s 406/498A was got registered against the accused and his family members and also petition u/s 125 Cr.P.C was filed by Rahimi for claiming State Vs Isab etc Page No47/54 48 maintenance from PW 5 Mohd. Rafiq. Had there been any such intention to commit murder of the complainant or his father, the accused persons must not have taken recourse to legal proceedings initiated against the deceased and his family members. No deadly weapon like revolver was ever recovered from the possession of the accused persons. Even on 2.5.2004 there were mere damage to the window panes of the house of the deceased and the police had not even registered any case against the accused persons. The accused persons thus can't be held to have an intention to deliberately hit the scooter of the complainant to cause his and his father's murder. Since on 2.5.2004 at about 8 or 9 p.m the deceased had not come outside the house and the grievance of the accused persons, if any, had not been taken care of, the accused persons seem to have reached at the spot to have some conversation regarding the litigation/relation State Vs Isab etc Page No48/54 49 with the complainant and his father going on a scooter. However, in the process of reaching to them, the accused while driving the car at a fast speed hit the same from behind which resulted in the accident. No intention to commit murder of the complainant and his father can be ascertained from these circumstances.
(e) WHICH OF ACCUSED LIABLE FOR INCIDENT DATED 3.5.2004.
57 Regarding section 304A IPC, again I am of the view that it was only A1 who can be held liable for the same. It was only A1 who was driving the offending vehicle at the relevant time. A2 and A3 who were present in the offending vehicle at the time of incident can't be fastened with any criminal liability for the accident.
58 In view of the above discussion, I am of the view that prosecution has established commission of offence punishable u/s 338/304A IPC against A1 only. There is State Vs Isab etc Page No49/54 50 no incriminating circumstances against A2 and A3 to connect them with the commission of any offence for the incident dated 3.5.2004. They also deserve benefit of doubt in this case.
59 A1 did not give plausible explanation to the incriminating circumstance appearing against him in the statement u/s 313 CrPC. He did not lead any cogent evidence on record to falsify the positive testimonies of the prosecution witnesses. He failed to establish any defence if he was not present at the spot alongwith his vehicle at the time of accident. There is no substance in the plea of A1 that he has been falsely implicated in this case due to strained relations with the complainant family. Relations between the complainant and accused family were strained for the last many years but at no stage prior to the incident in question, the complainant party lodged any such State Vs Isab etc Page No50/54 51 complaint against A1 or his family members. Defence version does not inspire any confidence.
RESULT 61 In view of the above findings recorded above, accused Isab @ Yusuf (A1) is held guilty and convicted for the offences punishable u/s 304A and 338 IPC. 62 Benefit of doubt is given to accused Sapaat Khan (A2) and Iqbal Khan (A3) and they are acquitted in this case.
Announced in open court dated 29.06.2010 ( S.P.GARG ) DISTRICT JUDGEIV State Vs Isab etc Page No51/54 52 IN THE COURT OF SHRI S.P.GARG, DISTRICT JUDGE IV NEW DELHI UNIQUE I.D. No. 02403R0401612004 S.C.No.10/10/04 State Vs. Isab @ Yusuf S/o Ishhak Khan, R/o Village Ladpur, PS Bhiwani, District Aiwar, Rajasthan. ......
(A1) FIR No. 294/04 U/S 302/307/34 IPC (Convicted u/s 304A/338 IPC) PS: Mehrauli ORDER ON SENTENCE:
1 I have heard the convict Isab @ Yusuf on the point of sentence.
2 Convict has prayed to take lenient view as he has remained in custody in this case for about 13 months. He is not a previous convict.
3 I have considered the prayer of the convict and have State Vs Isab etc Page No52/54 53 gone through the file.
4 On perusal of the file, it reveals that the offence committed by the convict is very serious. The convict due to his rash and negligent driving at a very fast speed hit the complainant from behind and caused death of his aged father Niaz Mohd. In the process, A1 also caused ''grevious'' injuries on the person of complainant Razaq.
Complainant party was related to the convict and it was his duty to remove them to hospital after the said accident. However, the convict fled away from the spot. He contested the case seriously and denied his involvement in the accident. Convict was rather apprehended to have killed the father of the complainant intentionally due to his strained relations on account of divorce of his sister Rashmi with brother of the complainant. Prosecution, however, failed to prove commission of the offence punishable u/s 302 IPC beyond reasonable doubt.
5 Considering all the facts and circumstances of the case convict Isab @ Yusuf (A1) is sentenced to undergo R.I for two years with fine of Rs.5,000/( Five Thousand only) and in default of payment of fine to undergo SI for five State Vs Isab etc Page No53/54 54 month for the commission of offence u/s 304A IPC. 6 Convict is further sentenced to undergo R.I for one year with fine of Rs.1,000/ (Five Thousand Only) and in default of payment of fine to undergo SI for one months for the commission of offence u/s 338 IPCfor causing grevious injuries on the person of complainant Razaq. 7 Both the substantive sentences shall run concurrently. The period already undergone by the convict in this case shall be counted and set off against the substantive sentence u/s 428 Cr.PC.
8 Copy of the judgment be given free of cost to the convicts.
9 File be consigned to the record room.
Announced in open court on dated 30/06/2010 (S.P.GARG) DJIV/ND State Vs Isab etc Page No54/54