Delhi District Court
State vs Mohd. Rafi @ Babloo on 26 July, 2024
IN THE COURT OF SH. SACHIN SANGWAN :
ADDITIONAL SESSION JUDGE (FAST TRACK COURT - 01): SOUTH-EAST
DISTRICT : SAKET COURTS : NEW DELHI
SC No. 2036/2016
STATE Vs Mohd. Rafi @ Babboo
FIR No.: 285/2012
U/S 307 IPC
PS : H. N. Din
Particulars of the case
1. Date of offence : 31.08.2010
2. Offence complained of : u/s 307 IPC
3. Name of the complainant : Rukaiya Begum
4. Name of the accused : Mohd. Rafi @ Babboo
his parentage s/o Mohd. Shafi,
his residential address House No.469, Gali no.21,
Jafrabad, Delhi 53.
5. Plea of accused : Pleaded not guilty
6. Final order : Accused acquitted
Date of Institution : 21.01.2013
Date of Judgment reserved on : 04.07.2024
Date of Judgment : 26.07.2024
SC 2036/2016
FIR No. 285/2012 Mohd. Rafi @ Babboo Page No. 1 of 34
Ld. Additional PP for State : Sh. Ashok Debbarma
Ld. Counsel for accused
Mohd. Rafi @ Babboo : Sh. Rajesh Kaushik
JUDGMENT
1. CHARGESHEET 1.01 As per the charge-sheet, on receipt of DD No. 23A dated 31.08.2012 SI Abhishek Singh along with Ct. Arvind and Ct. Anand reached at the spot i.e. house no.48, Nizam Nagar Basti, Nizamuddin where they came to know that the injured had been shifted to Trauma Center AIIMS by her family members. Thereafter, SI left Ct. Arvind to guard preserving the spot and he along with Ct. Anand reached at AIIMS Trauma Center wherein injured Rukaiya Begum was found admitted in the hospital but her MLC was not prepared. So, SI moved an application to the doctor wherein doctor declared the injured fit for statement. Thereafter, SI Abhishek recorded statement of injured Rukaiya Begum. 1.02 Complainant Rukaiya Begum stated that on 31.08.2012 at about 09.00 pm she was present at her house and at that time one girl namely Mehraj residing in their neighbourhood called her outside and when she came out one Babboo who SC 2036/2016 FIR No. 285/2012 Mohd. Rafi @ Babboo Page No. 2 of 34 worked at a paratha shop in Basti Nizamuddin was present in the gali along with his brother. Babboo told her that by being police informer against them she had got a case registered against Manoj regarding smack. He stated that they will kill her and thereupon Babboo after aiming the weapon towards the complainant, fired and the bullet hit her in her chest. The brother of Babboo asked him to fire again but the complainant shut down the door of her house. Accordingly, the complainant stated that Babboo and his brother called her fraudulently outside her house through one girl Mehraj with intention to kill her. She stated that she knew both of them well and legal action shall be taken against them.
1.03 After recording the statement of complainant, SI Abhishek along with Ct. Anand again reached at the spot wherein Inspector Om Prakash had already called the crime team. Crime team inspected the spot and Ct. Arvind handed over one empty cartridge and one live cartridge recovered from the spot to the SI and same were seized by him. From the statement of complainant, circumstances and the MLC, offence u/s 307/34 IPC and u/s 25/27 Arms Act was made out against the accused. Thereafter, SI got the present case registered and took up investigation of the case.
1.04 During investigation, SI Abhishek prepared the site plan of the spot and deposited the case property in the malkhana of the police station.
SC 2036/2016FIR No. 285/2012 Mohd. Rafi @ Babboo Page No. 3 of 34 1.05 On 02.09.2012 SI Abhishek handed over the case file to SI Nitu Singh
for investigation of the case as SI Abhishek had been deputed for a course at Kolkata.
During investigation, SI Nitu Singh arrested the accused Mohd. Rafi @ Babboo and obtained his police custody for four days and tried to search for co accused Mohd. Aarif but without any success.
1.06 On 11.09.2012 case file was again handed over to SI Abhishek Singh for investigation. He obtained the blood stained clothes of injured Rukaiya Begum and the bullet from Duty Constable, AIIMS Trauma Center in a sealed condition. He seized the same and thereafter deposited it in the malkhana. All the exhibits were sent to FSL Rohini for seeking expert opinion. The police tried to search for co accused Mohd. Aarif but without any success and proceedings u/s 299 CrPC was initiated against him.
1.07 During the course of investigation, statement of witnesses were recorded u/s 161 CrPC. From the statement of complainant, oral evidence of witnesses and other evidence, it was established that accused Mohd. Rafi @ Baboo in connivance with his bhanja Mohd. Aarif had committed the offence u/s 307/34 IPC and 25/27 Arms Act and they shall be tried for the said offences. 1.08 The result from FSL Rohini was awaited and SI filed the chargesheet under section 307/34 IPC and 25/27 Arms Act against the accused.
SC 2036/2016FIR No. 285/2012 Mohd. Rafi @ Babboo Page No. 4 of 34 1.09 Subsequently, FSL result of exhibits were received and filed in the
Court. As per the FSL report, the empty cartridge found from the spot was part of ammunition. However, no opinion could be given regarding the hole in the clothes of the injured being caused by a bullet.
2. CHARGE 2.1 On the basis of the charge-sheet, charge u/s 307 IPC was framed against the accused Mohd. Rafi @ Babboo. Accused pleaded not guilty to the said charge and claimed trial. Accordingly, prosecution was directed to lead evidence in support of the charge-sheet.
3. PROSECUTION EVIDENCE 3.1 In support of its case, prosecution has examined 12 witnesses.
S. No. Name of the witnesses Nature of the evidence PW-1 SI Krishan Kumar In-charge, Mobile Crime Team who inspected the spot PW-2 Ct. Punit Kumar Photographer, Mobile Crime team who clicked photographs of the spot SC 2036/2016 FIR No. 285/2012 Mohd. Rafi @ Babboo Page No. 5 of 34 PW-3 Ct. Arbind Kumar Police Official who joined investigation with the IO and was witness to seizure of empty cartridge and one live cartridge and who got the present FIR registered PW-4 Smt. Rukaiya Begum Complainant/eye witness of the case PW-5 Fahim Ahmad Son of the complainant/eye witness to circumstantial facts PW-6 HC Mohd. Tahir Duty Officer who proved the registration of FIR PW-7 Ct. Satish Kumar Police Official who joined investigation during police custody of accused and who collected the exhibits from the hospital.
PW-8 Dr. Mamidi Pranith Doctor who examined the
Ram complainant Rukaiya Begum
PW-9 Ms. Mehraj Banu Neighbour of the victim/eye witness
of the circumstantial facts
PW-10 HC Anand Kumar Police official who assisted in the
investigation of the case
PW-11 SI Nitu Singh 2nd IO of the case who arrested the
accused
PW-12 SI Abhishek Singh Main IO of the case
3.2 The prosecution has exhibited following documents/objects in support
of its case:-
SC 2036/2016
FIR No. 285/2012 Mohd. Rafi @ Babboo Page No. 6 of 34
No.of exhibit Nature of exhibit
Ex.PW1/A Crime team inspection report
Ex.PW2/A-1 to Photographs of the spot
Ex.PW2/A-6
Ex.PW2/B-1 to Negatives of above mentioned photographs Ex.PW2/B-6 Ex.PW3/A Seizure memo of empty cartridge and one live cartridge Ex.P2 One used Cartridge Ex.P3 One live cartridge Ex.PW4/A Statement of complainant Ex.P1 Nighty wore by the complainant at the time of incident Ex.PW6/A FIR Ex.PW6/B Endorsement on rukka Ex.PW7/A Seizure memo of the exhibits collected from the spot Ex.PW8/A MLC of complainant/victim Rukaiya Begum Ex.PW10/A DD No.23-A regarding a PCR call about a gun shot at one lady Ex.PW10/B Arrest memo of accused Ex.PW10/C Personal search memo of accused Ex.PW10/D Disclosure statement of accused Ex.PW11/A Pointing out memo of place of occurrence prepared at the instance of accused Ex.PW12/X Sketch of empty and live cartridges Ex.PW12/A Site plan of the spot SC 2036/2016 FIR No. 285/2012 Mohd. Rafi @ Babboo Page No. 7 of 34 Ex.AD1 FSL report dated 28.10.2013 prepared by Dr. N. P. (Admitted by Waghmare the accused u/s 294 CrPC r/w Section 58 Indian Evidence Act) 3.3 Though 12 witnesses have been examined by prosecution but the main witnesses of the case are:
i. PW-4 Rukaiya Begum, complainant/eye witness of the case, ii. PW-5 Fahim Ahmad, son of the complainant/eye witness to circumstantial facts, iii. PW-9 Mehraj Banu, Neighbour of thecomplainant/eye witness to circumstantial facts, iv. PW-11 SI Nitu Singh, 2nd IO of the case and v. PW-12 SI Abhishek Singh, main IO of the case.
3.4 PW-4 Rukaiya Begum deposed that on 31.08.2012 at about 09.00 pm, she was present at her home and one girl from her neighbourhood namely Ms. Mehraj came to her and told that two uncles were calling her outside the house. She came out and saw that accused Babboo @ Rafi along with one more person who always accompanied him, was present outside. She do not know his name or SC 2036/2016 FIR No. 285/2012 Mohd. Rafi @ Babboo Page No. 8 of 34 whether he was the friend or brother of accused Babboo @ Rafi but all the time he accompanied accused. She knew both of them prior to this incident. When she came out accused Babboo @ Rafi said that she had given secret information against them and that she had got a case registered against Manoj by giving information to the police. He also said that "hum tera kaam tamam kar dete hai " and after saying this, accused took out a gun (fire arm of about 8/10 inch length of steel colour) from the helmet and he immediately fired a shot upon her. When she saw him firing the shot, she made efforts to save herself and she bent towards one side.
However, the bullet hit her in her abdomen in right side and pierced into her 'gurda' (kidney). Accused fired a second shot aiming upon her but this time, the bullet got stuck and when the accused knocked the fire arm on his palm the bullet fell down on the ground. Meanwhile, she covered her wound by her hand and ran inside her house to save herself and lie down on the ground and called her elder son. He asked as to what happened. She told him that Mohd. Rafi @ Babboo had shot her. Her son went outside in search of the accused but they had already fled away from the spot on the motorcycle. She asked her son to immediately take her to the hospital and her son immediately brought their Innova Car and took her to Trauma Center, AIIMS hospital where she was hospitalized. When she was coming out from the C. T. Scan room, the police met her and asked her as to who had fired shot upon her. She told the name of the accused Mohd. Rafi @ Babboo. Doctor asked SC 2036/2016 FIR No. 285/2012 Mohd. Rafi @ Babboo Page No. 9 of 34 the police officials that first they had to take out the bullet from her body and only then police can record her statement but the police inquired from her and recorded her statement to this effect Ex.PW4/A. During her testimony, PW4 correctly identified the accused Mohd. Rafi @ Babboo as well as as the clothes i.e. nighty Ex.P1 worn by her at the time of incident.
PW4 was duly cross examined by Ld. Counsel for the accused. 3.5 PW-5 Fahim Ahmad, son of the complainant/victim deposed that on 31.08.2012 at about 09.00 pm he was present inside his house and was watching T.V. At that time, his wife came to his room on the first floor and told him that somebody fired a shot upon his mother. He immediately came downstairs and saw that his mother was sitting on the bed and her nighty/maxi was wet in blood. He immediately removed his mother to the Trauma Center, AIIMS hospital in his Innova car and on the way to hospital, he inquired from his mother. His mother told him that their neighbour Ms. Mehraz had come to call her and that his mother had gone at the gate of the house where Baboo @ Mohd. Rafi along with one more person was standing at the gate and that Mohd. Rafi fired shot upon her due to which she sustained injuries. IO recorded his statement to this effect.
During his testimony, PW5 identfied the nighty/maxi Ex.P1 worn by his mother at the time of incident.
SC 2036/2016FIR No. 285/2012 Mohd. Rafi @ Babboo Page No. 10 of 34 PW5 was cross examined by Ld. Addl. PP for State as he resiled from his earlier given statement.
During his cross examination by prosecution, he stated that police had recorded his statement in the present case. He admitted that in his statement he told the police that he was present inside the house and that Ms. Mehraz had come to call his mother and then his mother had gone to the gate of the house. He further admitted that he heard the sound of firing. He further voluntarily staed that "pathake ki aawaj aaye thi". However, he did not go to the main gate after hearing the sound of firing/pathaka nor he saw two persons running, out of whom one accused appeared as Baboo @ Mohd. Rafi on seeing from the back side. He admitted that accused Baboo @ Mohd. Rafi was running a paratha shop in the basti H. N. Din. He denied the suggestion that having heard the sound of shot, he reached at the main gate and that on seeing from the back side, one of the accused looked like accused Mohd. Rafi @ Baboo. He further denied the suggestion that on way to the hospital, his mother told him that brother of accused Mohd. Rafi @ Baboo was present with him when he fired the shot on his mother. He further denied the suggestion that he was intentionally deviating from his statement made to the police in order to give benefit to the accused.
During his testimony, PW5 correctly identified the accused Mohd. Rafi @ Baboo in the court.
SC 2036/2016FIR No. 285/2012 Mohd. Rafi @ Babboo Page No. 11 of 34 PW5 was duly cross examined by Ld. Counsel for the accused. 3.6 PW-9 Mehraj Banu, neighbour of complainant deposed that in the year 2012 she was studying in 7th standard and was residing with her family at Nizamuddin, Delhi. She cannot tell the exact date, month or year of the incident, however, about 2-3 years back, it was around 08.00 pm. She was preparing food in her house. Two persons appearing to be police officials came at their house and they asked her to call her grand maternal aunt (nani) namely Rukiya Begum. She asked those persons to wait outside the house and she went inside the house to call her nani. Her nani told her to inform those persons to wait outside and that she was coming. Thereafter, she went inside the house for preparing food. After about 10-15 minutes, she heard the noise of gunshot fire. As soon as she came on the door of the house, she saw that those persons were not present there and her nani was running inside the house with the pillow on her wound. The injured was shifted to hospital by the sons of injured. The neighbours gathered at the house of her nani. She do not know as to who fired upon her nani, perhaps out of those two persons may have fired upon her nani.
During her testimony, PW9 identified the accused as the one of the person who came to inquire regarding her nani from her just prior to the incident.
SC 2036/2016FIR No. 285/2012 Mohd. Rafi @ Babboo Page No. 12 of 34 The witness was cross examined by Ld. Addl. PP for State as she was unable to tell certain material facts which she had stated in her statement to the police.
During her cross examination, she admitted that date of incident was 31.08.2012 and time was about 09.00 pm. She denied the suggestion that her nani Rukaiya Begum told her that accused Babboo had fired upon her. Police came at the house, interrogated her and they were asking the name of the persons who fired upon Ruakiya Begum and she told them that she was not aware about the name of person.
PW9 was duly cross examined by Ld. Counsel for the accused. During her cross-examination, she deposed that at this stage she will not be able to recognize any of the two visitors due to passage of time. Thereafter, she was re-examined by the Ld. Additional PP wherein she deposed that she is not sure whether the accused was the same person who visited to make inquiry from her on the date of incident. On Court query, she denied that she was approached or pressurized by anyone.
3.7 PW11 SI Nitu Singh, 2nd IO of the case deposed as per the contents of the charge-sheet.
During his testimony, PW11 correctly identified the accused in the court.
SC 2036/2016FIR No. 285/2012 Mohd. Rafi @ Babboo Page No. 13 of 34 PW11 was duly cross examined by Ld. Counsel for the accused. 3.8 PW-12 SI Abhishek Singh, main IO of the case deposed as per the contents of the charge-sheet.
During his testimony, PW12 identified the accused as well as case property i.e. one live cartridge Ex.P3 and one empty cartridge Ex.P2 in the court.
PW12 was duly cross examined by Ld. Counsel for the acused.
4. EXAMINATION OF ACCUSED U/S 313 CrPC 4.1 After conclusion of prosecution evidence, accused Mohd. Rafi @ Babbo was questioned u/s 313 CrPC regarding incriminating circumstances appearing against him. He stated that he is innocent and has been falsely implicated in the present case.
4.2 Accused stated that he do not know the complainant and he had not gone to complainant's house on the alleged date and time. He stated that on the date of the alleged incident, he had gone to attend the marriage of his niece at village Guladiya tehsil Meerganj District Barliey. He had left Delhi with his family to attend the marriage on that day at around 04.00-05.00 pm and returned on 02.09.2012 at around 2.00-03.00 pm. He further denied that he was not running any shop. He stated that he was not taken by the police at the spot. He admitted that he SC 2036/2016 FIR No. 285/2012 Mohd. Rafi @ Babboo Page No. 14 of 34 was arrested by the police when he returned from the marriage. He stated that he had not given any disclosure statement to the police.
Accused stated that the IO made investigation at village Guladiya and the people therein including the village pradhan gave statement to the IO that he was not Babboo and he was present in the marriage on the date of the incident. However, IO deliberately concealed such facts from the court.
5. DEFENCE EVIDENCE 5.1 Accused chose to lead defence evidence and examined five defence witnesses.
5.2 At the stage of prosecution evidence stage itself, accused moved application u/s 91 CrPC for summoning of the CDR of his phone no.7503465953 and the CDR of phone number 9911603680 of HC Dharmender. Accordingly, DW1 Shishir Malhotra, Nodal Officer of Aircel was summoned. He brought the summoned record of CDR of mobile number 7503465953 Ex.D-1 belonging to accused Mohd. Rafi pertaining to period from 30.08.2012 to 03.09.2012. Same was exhibited as Ex.D1. The cell ID chart was exhibited as Ex.D2. Certificate regarding the genuineness of the record is Ex.D3. As per CDR, on 31.08.2012 at 20:58:11 hours, 21:25:52 hours and 21: 26:04 hours, said mobile phone was SC 2036/2016 FIR No. 285/2012 Mohd. Rafi @ Babboo Page No. 15 of 34 roaming in the area of Western UP and remained in UP area till 02.09.2012 at 12:38:06 hours.
DW1 was duly cross examined by Ld. Addl. PP for State. 5.3 In pursuant to aforesaid application u/s 91 CrPC, DW-2 Rajeev Sharda, Nodal Officer from Reliance was summoned and be brought the record of CDR of mobile number 9015199128 Ex.DW2/A belonging to Sumit Kumar pertaining to the period from 30.08.2012 to 03.09.2012. The certificate regarding the genuineness of record is Ex.DW2/B. The mobile connection was in the name of Sumit s/o Braham Pal and its CAF is Ex.DW2/C along with Voter ID of the subscriber Ex.DW2/D. As per CDR, on 01.09.2012 at 15:18:26, said mobile phone was in roaming in the area of Western UP (Pilakua, Hapur) and remained in UP, West (Amroha) till 02.09.2012 at 11:00:40 hours.
DW2 was duly cross examined by Ld. Addl. PP for State. 5.4 Subsequently vide order dated 26.03.2014 Ld. Predecessor of the court directed that aforesaid DWs shall be read as CWs as they were examined as Court witnesses.
Nonetheless, said witnesses/record were summoned at the request of accused only for the purpose of his defence.
SC 2036/2016FIR No. 285/2012 Mohd. Rafi @ Babboo Page No. 16 of 34 5.5 DW1 Suresh Gangwar (numbered as DW1) deposed that on
31.08.2012 at about 09.00 pm at village Gularia, District Bareilly, U.P. Mohd. Rafi was present in the marriage of his niece ( bhatiji), daughter of Israr. He remained present with them during all the time in the marriage and after the marriage, he remained present with them in the said village for about 1-2 days.
After about 1-2 days from the said marriage, police came to village and inquired about Mohd. Rafi. He gave statement to police that Rafi was present with them in the marriage of his niece on 31.08.2012.
DW1 was duly cross examined by Ld. Addl. PP for State. 5.6 DW2 Ansar Khan deposed that on 31.08.2012 there was marriage of daughter of Israr Khan at Gularia village at night time. At about 09.00-10.00 pm, Mohd. Rafi arrived in said marriage. Israr Khan was his real brother so DW2 was also present in the marriage.
1-2 days later, police arrived and made inquiries from them and told that a case was registered against Mohd. Rafi. Police also recorded his statement and statement of other persons. Mohd. Rafi was brought by the police from there.
DW2 was duly cross examined by Ld. Addl. PP for the State. 5.7 DW-3 Saif Ali deposed that on 31.08.2012 there was marriage of daughter of Israr Khan and Mohd. Rafi was present with them during the whole SC 2036/2016 FIR No. 285/2012 Mohd. Rafi @ Babboo Page No. 17 of 34 time. The marriage function was at about 09.00-09.30 pm and Mohd. Rafi remained with him since 09.00 pm. DW3 was duly cross examined by Ld. Addl. PP for the State. 5.8 DW4 Israr Khan deposed that Mohd. Rafi, accused in the present case was his cousin brother (chachera bhai). He deposed that on 31.08.2012 his cousin Mohd. Rafi came to his house to attend the program of Mandya of his daughter which was organized prior to one day of marriage. Mohd. Rafi reached his house at about 06.00 pm. Mohd. Rafi joined all the ceremonies prior to the day of marriage and the marriage of his daughter. He and Mohd. Rafi usually talk on mobile phone of Mohd. Rafi i.e. 7503465953. Mohd. Rafi remained present in their village till next date of the marriage and on the next day of marriage they were engaged in their work after the marriage and they came to know that Mohd. Rafi had received a call from someone and he left. He do not know from whom he received the call. He even did not know what happened thereafter with Mohd. Rafi.
After Mohd. Rafi had left, police officials reached their village regarding some case and they asked them about the presence of Mohd. Rafi. Police did not obtain any written statement. They recorded his address etc. He told the police that Mohd. Rafi had come one day prior to marriage at about 06.00 pm. He was having the Nikahnama of the marriage.
SC 2036/2016FIR No. 285/2012 Mohd. Rafi @ Babboo Page No. 18 of 34 DW4 exhibited the Nikahnama dated 01.09.2012 Ex.DW4/A bearing his thumb impression.
DW4 was duly cross examined by Ld. Addl. PP for the State.
6. ARGUMENTS 6.1 Thereafter, arguments of both parties were heard. Ld. Additional PP for State has submitted that main witness of the case i.e. the victim Rukaiya Begum has categorically deposed against the accused. She has named him in the FIR and also identified him during her testimony. Her testimony is supported by the medical evidence and there appears no motive with the complainant to make false allegations against the accused. Even her son PW5 Fahim has deposed about the incident and further PW9 Mehraj Banu has deposed about the incident and identified the accused during her examination in chief. Accordingly, case of prosecution has been duly proved against the accused. 6.2 On the other hand, Ld. Counsel for accused has argued that there are number of defects in the case of prosecution. No evidence has been led about the alleged motive i.e. FIR against one Manoj and his relationship with the accused. In the MLC it is mentioned that complainant was attacked by some "unknown" person and same shows that the attack on complainant was made by somebody else. Even SC 2036/2016 FIR No. 285/2012 Mohd. Rafi @ Babboo Page No. 19 of 34 the FSL report regarding the clothes of injured was inconclusive regarding gun firing on her. The bullet allegedly recovered from the body of victim has not been exhibited. No blood was recovered from the place of occurrence which shows that even the place of occurrence is doubtful. In the FIR the actual name of accused has not been mentioned and only an alias Babboo has been mentioned but accused has no such alias. Further, when the real name of the accused was not known the TIP of accused should have been conducted but same was never conducted. It is argued that identification of the accused for the first time in the Court has no relevance in the given circumstances. Moreover, neither the alleged accomplice of accused was ever arrested nor the alleged firearm was ever recovered by the police. Even PW9 Mehraj has deposed in her cross examination that she is not even sure about the identification of the accused. Thus there is no evidence against the accused whatsoever except his identification by the complainant in the Court. Further even the testimony of son of complainant is in contradiction with his 161 CrPC statement.
Ld. Counsel has argued that the accused was present at the marriage of his niece at Village Gulleria, District Bareilly, UP on the date / time of the alleged incident at Delhi. The said plea of alibi was not taken at the fag end of the trial but was taken on the very first day when the accused was arrested. Said plea of alibi is SC 2036/2016 FIR No. 285/2012 Mohd. Rafi @ Babboo Page No. 20 of 34 strongly supported by call details record of his mobile phone and even various defence witnesses have corroborated the same.
Therefore, the prosecution has miserably failed to prove its case against the accused and he is entitled to be acquitted.
7. POINTS FOR DETERMINATION 7.1 The relevant legal provisions applicable in the present case are reproduced herewith:
Section 307 IPC defines attempt to murder - "Whoever does any act with such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty of murder, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and if hurt is caused to any person by such act, the offender shall be liable either to imprisonment for life, or to such punishment as is herein before mentioned."
Further the ingredients of murder are defined in Section 300 IPC. It provides "Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or- (secondly) - if it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or-
(thirdly)- if it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or -SC 2036/2016
FIR No. 285/2012 Mohd. Rafi @ Babboo Page No. 21 of 34 (fourthly)- if the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid."
7.2 Thus, from the facts of the case, arguments of the parties and relevant provisions of law, the following points for determination arise:-
1. Whether the testimony of complainant is credible and is corroborated by other witnesses / circumstantial evidence?
2. Whether the defence of accused regarding plea of alibi is believable?
3. Whether the accused is liable to be convicted for the alleged offence?
8. APPRECIATION OF EVIDENCE AND APPLICATION OF LAW 8.1 The main witness of the case is the complainant / PW4 Smt. Rukaiya Begum. She has deposed in categorical terms against the accused and has identified him as the shooter during her examination. However, Ld. Defence Counsel has argued at length that the testimony of complainant is not credible and does not find corroboration from the circumstantial evidence and even from the other witnesses.
Let us proceed further to examine the testimony of the complainant inter se the other circumstantial evidence / testimonies. 8.1(a) The history in the MLC and the PCR call:-
SC 2036/2016FIR No. 285/2012 Mohd. Rafi @ Babboo Page No. 22 of 34 As argued by the Ld. Defence Counsel, the history of the injured as mentioned in the MLC Ex.PW8/A is " gunshot injury by unknown person near home". Though, both the complainant and her son have denied about stating such facts to the doctor, however, there does not appear any reason as to why the doctor shall mention such history on his own. Moreover, even the discharge summary of the complainant filed with the charge-sheet mentions " alleged history of gunshot wound by an unknown person came knocked the door and when lady opened the door, he shot with short hand gun (pistol) at 09:15 on 31.08.2012 ". Same shows that the doctor was in the knowledge of the complete background and the alleged history in the MLC cannot be said to be an oversight / error of the doctor.
As per the son of the complainant, on the way to the hospital he was told by his mother about the shooter being the accused Babboo. From his testimony, it also appears that the accused was known him also, since, he has deposed that accused Babboo @ Mohd. Rafi was running a paratha shop in Basti, Hazrat Nizamuddin. As per the MLC, the complainant arrived at the hospital at 09:37 PM. The very first information was received by the police vide DD No. 23A Ex.PW10/A wherein it is mentioned that at 09:35 PM, information was received in the police station that a PCR call was made wherein the caller stated that his mother has been shot. Thus, it appears that the PCR call was made around 09:35 PM. In that case, the caller i.e. son of the complainant would have known by that time as to SC 2036/2016 FIR No. 285/2012 Mohd. Rafi @ Babboo Page No. 23 of 34 who was the shooter i.e. the accused. However, nothing is mentioned about the shooter in the said call.
Thus, from said circumstances, Court is put to a caution as to whether the shooter was known to the victim or not.
8.1 (b) The timing of recording the statement of complainant and registration of FIR:-
Ld. Defence Counsel has argued that the FIR of the case is ante timed and the name of accused has been mentioned as an afterthought on the basis of suspicion only. I have considered said argument. As per the FIR Ex.PW6/A, it was registered at 12:30 AM on 01.09.2012. Thus, the statement of complainant was recorded prior to the same. The IO/ PW12 has deposed that the statement of the complainant was recorded in the hospital. It is to be noted that the complainant was taken to the hospital by her son PW5/ Fahim Ahmad. During his cross-examination, he deposed that police had recorded his statement in the hospital in the night time. However, he deposed that in his presence no other statement was recorded by the police and that his mother was not in conscious state at that time. He could not even tell if the police had recorded any statement of his mother inside the room where she was taken by the doctor. He could not tell if the statement of his mother was recorded by the police prior to his statement or subsequently. Since the son of the complainant was the person who had taken her to the hospital and was present in SC 2036/2016 FIR No. 285/2012 Mohd. Rafi @ Babboo Page No. 24 of 34 the hospital during her treatment, it was natural that he should be aware of the arrival of the police, making inquiry by the police from his mother and recording of her statement. However, he has not given definite answers regarding said facts.
Further, during his cross-examination, he has specifically deposed that when he reached at the hospital, his mother became unconscious so he shifted her on wheelchair and took her inside the hospital. However, the complainant has deposed in her cross-examination that she was in conscious state of mind when she reached the hospital. Further, during her cross-examination, complainant has deposed that the police recorded her statement after 10/15 minutes of reaching the hospital. Thus, there are apparent contradictions in testimony of complainant and her son. Therefore, the recording of statement of complainant immediately on her arrival in hospital appears doubtful.
Moreover, as per Section 157 CrPC, a report has to be sent to the concerned MM immediately on the start of investigation of a cognizable offence. However, there is no proof of any such report being sent to the concerned MM in the morning hours of 01.09.2012.
Thus, the FIR being ante timed cannot be ruled out in such circumstances.
8.1(c) Inconsistencies in the statement of the complainant and the FIR:-SC 2036/2016
FIR No. 285/2012 Mohd. Rafi @ Babboo Page No. 25 of 34 In her testimony, the complainant has not only deposed about the firing on her but also a second attempt to fire on her wherein the accused failed to fire as the bullet got stuck and when the accused knocked the firearm on his palm the bullet fell down on the ground. No such fact of the second attempt and its failure due to such reason has been mentioned in the FIR and it is only mentioned that when the brother of Babboo asked him to fire the second time, the complainant closed the gate of the house. Though the FIR is not entire encyclopedia of the incident but said omission is crucial. More so, when the gate of the house was closed, the complainant could not have seen what happened outside thereafter.
Moreover, in her testimony, she has not mentioned about any exhortation by the "brother" of the accused. Rather, she has stated in her testimony that she does not know whether the associate of the accused is a brother or friend but he used to accompany him all the time. Thus, even the role of the accomplice of the accused and his relationship with the accused has been described differently in the FIR and the testimony of complainant.
8.1(d) Inconsistencies between the testimony of complainant and the other eyewitnesses:-
In her testimony, PW4/ complainant deposed that accused took out a gun from the helmet and fired upon her. However, PW9/ Ms. Mehraj Banu was specifically cross-examined whether the assailants were having anything in their SC 2036/2016 FIR No. 285/2012 Mohd. Rafi @ Babboo Page No. 26 of 34 hands. She deposed that they were standing like policemen holding their hands behind their back. However, she also deposed that she has not seen anything in their hands.
Further, the complainant has deposed that her son went outside in search of the accused but they had already fled away from the spot on the motorcycle. Thus, it appears that her son had seen them running away in such manner. However, her son has denied that he had gone to the main gate on hearing the sound of firing and he denied that he had seen two persons running out. Further, PW9 has deposed in her cross-examination that she had seen both the persons running and also firing in the air. However, she did not mention anything about the accused fleeing on the motorcycle. Rather, she has deposed in her cross- examination that the visitors had come on foot and that she has not seen any vehicle.
Most importantly, PW9 has deposed in her cross-examination that both of the visitors were tall and healthy. Ld. Counsel for the accused has argued that the accused cannot be said to be a tall person by any means. I have considered said issue, and indeed the conviction slip of the accused filed by the IO with the charge- sheet mentions his height as 5 feet and 5 inches. Thus, Court has found substance in the said argument of Ld. Defence Counsel and accordingly, a serious doubt has SC 2036/2016 FIR No. 285/2012 Mohd. Rafi @ Babboo Page No. 27 of 34 cropped up about the identification of accused as the shooter from said part of her testimony.
Further, though the PW9 Mehraj Banu identified the accused in her examination in chief but during her cross-examination, she has deposed that due to passage of about 3 years, she may be able to recognize the associate of the accused if shown to her. Thereafter, she also deposed that she will not be able to recognize any of the two visitors. During her subsequent re-examination on this issue by Ld. Additional PP, she stated that she is unsure about the accused being one of the visitors at the house of complainant. Thus, the only other witness who had seen the shooter has not deposed against the accused and rather her testimony does not match with the testimony of the complainant and even a physical fact i.e. the height of the accused. Ld. Additional PP has argued that PW9 has identified the accused during her examination in chief and it was only in her cross-examination that she denied the identity of the accused as the visitor. It is submitted that PW9 has turned hostile deliberately and Court may ignore her cross-examination. I have considered his argument. However, generally, the witnesses who turn hostile to the case of prosecution deliberately, do so in their examination in chief only. Moreover, it is not the case that the examination in chief was recorded earlier and the witness was cross-examined after some time gap. Rather, her examination and cross- examination was done on the same day in a continuous manner. Further, even the SC 2036/2016 FIR No. 285/2012 Mohd. Rafi @ Babboo Page No. 28 of 34 Ld. Presiding Officer specifically questioned the witness at the end of her examination as to whether she was approached or pressurized by anybody but witness replied in negative. Further, as mentioned above, the testimony of PW9 initially identifying the accused and thereafter, being unsure about the identification of the accused has a natural flow. Once she admitted that she cannot identify the other visitor due to lapse of time, as a corollary she conceded that due to said reason, she is also unsure about the identity of the accused as one of the visitors. Moreover, she has given various details of the incident / the visitors during her examination in chief as well as cross-examination. Rather, she has given the narration of the incident as expected from a witness of her age and understanding. Thus, Court does not see any merit in the said argument of Ld. Additional PP.
8.1(e) Non-discovery of the weapon / associate of accused:-
Admittedly, after the arrest of the accused, his police custody was taken for four days but police failed to trace out the weapon used in the crime. Thus, there is no physical evidence to link the accused to the alleged offence. It may be noted that accused was arrested within two days of the incident and it is not the case that there was huge time gap between the incident and the arrest of the accused thereby giving ample time to accused to dispose off the weapon without any trace.SC 2036/2016
FIR No. 285/2012 Mohd. Rafi @ Babboo Page No. 29 of 34 The police even failed to trace out the alleged accomplice of the accused. As per complainant, the accomplice of the accused used to accompany him at all times. Therefore, in such situation, the details of such close associate including his parentage and address would have been known to the accused. However, even no proceedings u/s 82 CrPC were initiated by the IO against the said accomplice. Thus, investigation of the case failed to provide the most crucial corroboratory evidence expected to be discovered by the police. 8.1(f) Absence of the blood at the spot:-
Ld. Counsel for accused has argued that no blood was found by the crime team / police at the spot of the firing which creates doubt as to whether the offence occurred at the alleged spot. I have considered said arguments. All three material witnesses i.e. complainant, her son and her neighbour have deposed about the place of incident and it does not appear doubtful that the incident took place else where but the explanation about the absence of blood anywhere at the spot has been given differently by the witnesses. PW4 / complainant deposed that she put her hand on the wound so the drops of blood did not fall on the ground. She deposed that the entire blood was soaked in her nighty which she was wearing and pressing. However, PW9 / Ms. Mehraj Banu has deposed that when she came after hearing the gunshot fire, the complainant was running inside the house with the pillow on her wound. She even deposed in her cross-examination that she had not SC 2036/2016 FIR No. 285/2012 Mohd. Rafi @ Babboo Page No. 30 of 34 seen on which the part the injury was caused by the bullet as complainant was taken by her family members after using a pillow on the injury. This inconsistency, though minor, further prompts the Court not to proceed on testimony of complainant without corroboration.
8.1(g) Non-conducting of TIP:-
Ld. Counsel for accused has argued that as per the FIR, the shooter was a Babboo working at a paratha shop at Basti, Nizamuddin. However, the accused has no alias of Babboo and he never did any such business. It is submitted that no evidence regarding such alias of accused and running of any business by him has been led by the prosecution. It is submitted that when the real name of accused, his parentage and his address were not mentioned in the FIR, the TIP of the accused should have been conducted. I have considered said submission. As far as complainant is concerned, she has deposed that she knew the accused by face and by the name of Babboo and that he was doing such business in Basti, Nizamuddin and said facts were not controverted during her cross-examination at all. Further, even the son of complainant has deposed about the said facts and the same were not disputed in his cross-examination. However, PW9 Mehraj Banu was the other eyewitness who was completely stranger to the accused and therefore, once the accused was arrested, he should have been subjected to TIP at least by PW9 to confirm his identity being the shooter and to corroborate the version of SC 2036/2016 FIR No. 285/2012 Mohd. Rafi @ Babboo Page No. 31 of 34 PW4. However, the police failed to do so. On the contrary, PW9 has deposed in her cross-examination that police had shown her the accused in the police station. Therefore, it appears that the investigation was not done in an impartial manner. If a witness is shown a particular person by the police during the investigation as a person who has committed the offence, the witness may tend to believe such person as the perpetrator of the crime and may identify such accused from her recollection of seeing him during the investigation as opposed to her recollection of the incident.
8.1(h) Vagueness about motive:-
As per the FIR, the accused said that the complainant has been police informer and has got a case registered against one Manoj regarding smack. However, throughout the trial no evidence has been led regarding such case and more importantly regarding any link between the accused and the said Manoj. Though the complainant has not claimed that she has been a police informer or complainant in any such case but existence of such case and the proximate relationship between said Manoj and the accused should have been shown by the prosecution so that it can be proved that accused proceeded to commit crime on some suspicion. Though motive is not an essential ingredient for the offence 307 IPC as it talks about knowledge and intention only, however, the motive provides SC 2036/2016 FIR No. 285/2012 Mohd. Rafi @ Babboo Page No. 32 of 34 corroboration to the version of a victim and same appears to be lacking in the present case.
8.2 Thus, from aforesaid discussion, it can be concluded that besides the identification of the accused in the Court by the complainant, there is no concrete evidence against the accused being the perpetrator of the crime.
However, the testimony of complainant cannot be said to be of sterling quality so as to proceed on the same dehors other incriminating evidence. 8.3 As far as plea of alibi of the accused is concerned, the Court is not convinced by the same for three reasons:-
Firstly, the CDR evidence is regarding the location of a phone and not the subscriber of a phone as the phone may be used by anyone. Moreover, as per personal search memo of the accused, he was found in possession of three SIMs, thereby indicating that he was user of multiple SIMs.
Secondly, the defence witnesses were relatives / acquaintances of accused and therefore, were interested witnesses. Moreover, no photographic / videographic evidence of presence of accused in the marriage was produced despite the fact that DW2 deposed in his cross-examination that videographer / photographer was brought by groom's family.
Thirdly, as deposed by DW4, the marriage itself was on 01.09.2012 and not on 31.08.2012.SC 2036/2016
FIR No. 285/2012 Mohd. Rafi @ Babboo Page No. 33 of 34 However, since the case of prosecution has to stand on its own legs and burden of proving the charge remains on the prosecution, the plea of accused shall come in question only when said initial burden has been discharged by his prosecution. However, the evidence led by prosecution is of such quality that either of views are possible i.e. the culpability or innocence of the accused. However, it is basic principle of criminal jurisprudence that where two views are possible, the one favouring the accused has to be followed.
9. CONCLUSION 9.1 Thus, in view of the above said discussion, benefit of doubt has to be given to the accused. Accordingly, he is acquitted of the charges levelled against him.
Digitally signed(Announced in the Open Court SACHIN by SACHIN
SANGWAN
SANGWAN Date: 2024.07.26
on 26th July 2024) 17:16:01 +0530
(Sachin Sangwan)
Additional Sessions Judge (FTC-01):
South East: Saket District Court: New Delhi.
SC 2036/2016
FIR No. 285/2012 Mohd. Rafi @ Babboo Page No. 34 of 34