Delhi District Court
State vs . Mohd. Alam on 19 December, 2018
IN THE COURT OF Ms. SHILPI JAIN
METROPOLITAN MAGISTRATE-01(CENTRAL),
TIS HAZARI COURTS, DELHI - 110054
FIR No.124/16
PS Jama Masjid
State Vs. Mohd. Alam
U/s 326 IPC
CNR No.DLCT-02-014602/17
Unique Case ID No. 6773/17
JUDGMENT
(a) Sr. No. of the Case 6773/17
(b) Date of offence 17.08.2017
(c) Complainant Javed S/o. Abdul Khalid, R/o. House No. WZ-168,
Shadi Khanpur, Delhi.
(d) Accused Mohd. Alam S/o. Mohd. Sazzad. R/o. Village & PS
Islam Nagar, Arhariya, Bihar.
(e) Offence 326 IPC
(f) Plea of accused Pleaded Not guilty
(g) Final Order Acquitted
(h) Date of Institution 23.06.2017
(i) Date when judgment was 19.12.2018
reserved
(j) Date of judgment 19.12.2018
FIR No.124/16 PS Jama Masjid State Vs. Mohd. Alam Page No. 1 of 15
BRIEF FACTS AND REASONS FOR SUCH DECISION:-
1. The present FIR was registered at PS Jama Masjid against accused Mohd. Alam for the offence U/s 326 IPC.
2. It is the case of the prosecution that on 17.10.2016, at about 8:00 pm, in front of Gate No. 2, Jama Masjid, Delhi, accused voluntarily caused grievous hurt to the complainant by sharp edged weapon used for cutting which is likely to cause death by making incised wound over the left side of neck starting from 03 cm lateral to angle of the mandable upto occipital region over the head size 07' X 02' inch and thereby committed offence punishable under Section 326 IPC.
3. After completion of the investigation, charge-sheet was filed by the police in the Court and the copy of the charge sheet and annexed documents were supplied to accused in compliance of Section 207 Cr.P.C. Thereafter, charge under Section 326 IPC was framed against the accused by the Ld. Predecessor of this court vide order dated 17.08.2017 to which he pleaded not guilty and claimed trial.
4. Thereafter, matter was fixed for PE.
PROSECUTION EVIDENCE
5. In order to prove the guilt of the accused, prosecution examined as many as 4 witnesses.
6. PW-1 is Javed, who deposed that on 17.10.2016, at about 8:00 pm after closing his shop, he was going to Dariba to buy Itra and when he reached at Gate No. 2, Jama Masjid, Delhi and he saw that one person was fighting with an old man and abusing him, that he intervened in the said fight asked that man to not to fight with old person, that accused said that "tu bada choudhary banta hai, tujhe abhi bata hu", that on hearing this he FIR No.124/16 PS Jama Masjid State Vs. Mohd. Alam Page No. 2 of 15 started walking away and at that time, accused hit him with some pointed thing on the left side of his neck, that after hitting him, accused fled away, that blood was oozing out of the injury on his neck and he became unconscious, that one of his relative namely Babu Bhai who was there took him to LNJP Hospital and got him admitted there for treatment, that he went to home. He again said that he went to Patel Nagar, that on next day, he went to PS Jama Masjid and police recorded his complaint Ex. PW-1/A, that IO took him to the spot and IO prepared the site plan which is Ex. PW-1/B, that on 19.10.2016, he was present at Gate No. 2, Jama Masjid and met police officials there and he joined them in search of accused, that when they reached at RCC Road, Meena Bazar, Delhi, he noticed accused and pointed towards him, that accused was apprehended by the police and interrogated him vide memo Ex. PW-1/C.
7. In the cross examination, PW-1 deposed that they close their shop at about 8:00 pm, that the spot of incident is about 100 steps away from his shop. He admitted that the neighbours of his shop as well as neighbouring shopkeepers of spot also know him very well, that at the relevant time, there was crowd of public persons present at the spot, that he was carrying his mobile phone on the day of the incident with him, that he was alone at that time of incident, that when the accused was quarreling with an old man, public persons gathered there, that public persons were also present there when he intervened in the fight between the accused and old man, that he do not know the accused prior to this incident, that he do not know whether accused is a rickshaw puller in the area of Jama Masjid. He voluntarily deposed that he heard that accused a rickshaw puller, that he could not try to catch accused as he became unconscious for sometime after the hit on his neck. He admitted that accused suddenly hit him from back side, that accused did not come in front of him after hitting him. He further deposed that he stated to the police on 18.10.2016 that he became unconscious after hit. He was confronted with the statement Ex. PW-1/A wherein it is not so recorded. He deposed that Babu Bhai took him hospital by rickshaw, that he do not know who called at 100 number he denied that accused was already FIR No.124/16 PS Jama Masjid State Vs. Mohd. Alam Page No. 3 of 15 arrested by the police and was not arrested at his instance. He further deposed that he stated to the police that accused hit him with surgical blade. He was confronted with the statement Ex. PW-1/A wherein it is not so recorded. He deposed that police prepared the site plan on 18.10.2016 at his instance, that he do not know whether police made any public person as witness or not. He denied that accused is a rickshaw puller in Jama Masjid and he knew him prior to the incident, that accused used to park his rickshaw in front of his shop that is why he falsely implicated the accused in the present case, that due to parking issue, he used to have quarrel with the accused on regular basis, that accused never hit him and he has been falsely implicated in the present matter due to previous enmity, that he is deposing falsely.
8. PW-2 Ct. Prahald deposed that on 19.10.2016, he was posted as constable at PS Jama Masjid, that he joined the investigation of the present case along with IO/HC Arun Kumar, that they left the PS at about 8:30 pm and went to Gate no. 2, Jama Masjid and met complainant Javed, that they also joined complainant Javed in the investigation and thereafter, they all three left for CC Road, Meena Bazar, complainant identified the accused Mohd. Alam then and there who was coming towards Meena Bazar and pointed towards him, that he along with IO apprehended Mohd. Alam and IO interrogated from the accused who confessed to have committed the said offence, that IO prepared the interrogation report vide meo Ex. PW-1/C, that IO prepared the bound down mem oEx. PW-2/A.
9. In the cross examination, PW-2 deposed that IO called complainant Javed at gate no. 2, Jama Masjid, Delhi, that he along with complainant and IO went to the spot of apprehension of accused. He admitted that IO recorded his statement under Section 161 Cr.P.C but he do not remember whether the time of reaching Meena Bazar was mentioned in the said statement or not, that accused was apprehended behind Dargah near Meena Bazar, that he cannot say whether IO prepared any site plan or not for the spot of apprehension of accused. He admitted that 02-03 FIR No.124/16 PS Jama Masjid State Vs. Mohd. Alam Page No. 4 of 15 public persons gathered when accused was apprehended but none agreed to share name and address. He further deposed that he do not know whether IO released the accused after taking identity proof of accused or not. He further deposed that IO recorded interrogation report of accused at the spot. He admitted that the accused was not taken to police station. He denied that the accused was not apprehended from Gate no. 2, Meena Bazar, that complainant Javed did not accompany them to the spot of apprehension of accused, that accused has been falsely implicated in this case.
10. PW-3 is HC Arun Kumar, who deposed that on 17.10.2016, he was posted as HC at PS Jama Masjid, that he received DD No. 22A and he along with Ct. Arun went to LNJP Hospital, that at the hospital, he collected the MLC of injured Javed, that he met the complainant Javed who was admitted in the hospital, that he noticed that complainant Javed was having bandage around his neck, that complainant could not give his statement due to pain in neck, that after two hours, he again tried to inquire from the complainant but he left the hospital without informing them, that they went to the house of complainant WZ-168, Said Khampur, Delhi but complainant was not found at his house. He further deposed that on 18.10.2016, complainant came to PS Jama Masjid, and gave his complaint which was recorded by him and same is Ex. PW-1/A, that he prepared the tehrir on the statement and gave it to duty officer for registration of FIR, that the said tehrir is Ex. PW-2/A, that he along with complainant went to the spot of incident and he prepared the site plan which is Ex. PW-1/B, that Ct. Raisuddin came to the spot and handed over him original tehrir and copy of FIR, that he along with complainant went in search of accused but could not find him that he recrded the supplementary statement of complainant. He further deposed that on 19.10.2016, at about 8:20 am, he called complainant Javed at Gate No. 2, Jama Masjid, Delhi, that they left for search of accused in Meena Bazar area, that accused was identified by complainant when he was coming from side of Lal Quila at RCC Road, Meena Bazar, that they went near to accused and joined him in the investigation, that he interrogated FIR No.124/16 PS Jama Masjid State Vs. Mohd. Alam Page No. 5 of 15 the accused regarding incident in question wherein accused confessed and he prepared the interrogation report which is Ex. PW-1/C, that he also asked about the weapon of offence but could not find it, that he bound down the accused vide memo Ex. PW-2/A, that he recorded the supplementary statement of complainant, statement of Ct Prahald, that he also recorded the statement of Babu Khan, who got admitted the complainant in the hospital, that he also recorded the statement of Ct. Ajay at LNJP hospital, that he deposited the MLC of complaint in LNJP Hospital for opinion and doctor gave his opinion as grievous injury from ENT point of view, that opinion was sought from doctor regarding weapon used in the incident and doctor gave opinion as sharp, that he added Section 326 IPC in the chargesheet on 01.05.2017, he along with Ct. Fakruddin went in search of accused and when they reached at Gae No. 2, Jama Masjid, Delhi and met one secret informer who informed him that accused Alam can be apprehended at Nahar Patri, Meena Bazar, Delhi, that he along with Ct. Fakruddin arrested the accused vide memo Ex. PW-3/A, that the personal search of accused was also conducted vide memo Ex. PW-3/B, that the accused was taken for medical examination and accused was produced in the Court and he was sent to JC, that after completion of investigation, he prepared the challan and filed the same in the Court.
11. In the cross examination, PW-3 deposed that as he directly went to the house of complainant from the hospital thus no DD entry was made in this regard, that complainant came to him at PS on 18.10.2016 and at about 6:45-7:00 pm, that he did not join any public person at the time of bound down of accused on 19.10.2016, that on the evening of 18.10.2016, complainant told him that he would be available next day at about 8:00 am at Gate No. 2, Jama Masjid to join the investigation in search of accused, that he did not make a call on 19.10.2016 to complainant for meet at gate no. 2, that the proceedings for bound down of accused were done at the spot of apprehension of accused on 19.10.2016, that he took oral permission from SHO, PS Jama Masjid to bound down the accused. He admitted that he is aware that accused is FIR No.124/16 PS Jama Masjid State Vs. Mohd. Alam Page No. 6 of 15 an illiterate person and he does not know how to read and write. He deposed that he did not verify the address of accused mentioned in bound down memo Ex. PW-2/A. He denied that accused was not apprehended on 19.10.2016. He further deposed that both accused and complainant did not tell him the clear description of weapon of offence, that accused stated that he took the weapon from the street only and threw it at some unknown place, that he did not record the description of weapon in interrogation report of accused as Ex. PW-1/C. He was confronted with interrogation report Ex. PW-1/C wherein the description of weapon of offence is record from point A to A1 as small iron strip (choti lohe ki patti). He denied that thumb impression of accused was taken on blank papers when accused was arrested on 01.05.2017. He deposed that he never called accused to PS Jama Masjid between 19.10.2016 and 01.05.2017, that he did not give any direction to accused to mark his presence at PS Jama Masjid on regular intervals, that he made departure entry on 01.05.2017 at PS when he left for arrest of accused, that he do not remember the said DD number, that he made efforts to search and examine the said old person who was being allegedly abused by accused, that he did not make any specific DD entry for the efforts made to search the said old person, that he did not serve any notice to accused before 01.05.2017. He denied that accused was arrested by calling to PS on 01.05.2017, that accused has been falsely implicated in the present matter at the instance of complainant, that he is deposing falsely.
12. PW-4 is Ct. Fakruddin, who deposed that on 01.05.2017, he was posted at PS Jama Masjid as constable, that he joined in the investigation in the present case for search of accused Mohd. Alam along with IO/HC Arun and for his search they reached at Gate No. 2, Jama Masjid, Meena Bazar, Delhi, that there , IO met one secret informer who informed about the presence of accused at Patri Meena Bazar, Gate No. 2, that at about 1:00 pm, he along with the IO reached at the disclosed location and found accused, that he along with IO apprehended the accused, that IO interrogated the accused and thereafter arrested him vide arrest memo already Ex. PW-3/A, that personal search of accused was also conducted FIR No.124/16 PS Jama Masjid State Vs. Mohd. Alam Page No. 7 of 15 vide memo Ex. PW-3/B, that information of arrest of accused was given to his wife, that accused was taken for medical examination and thereafter was produced in the court and from there accused was sent to judicial custody, that IO recorded his statement in this regard.
13. In the cross examination PW-4 deposed that he do not know whether IO made any departure entry while leaving the PS on 01.05.2017, that complainant met them at Gate No. 2, Jama Masjid and thereafter, join the investigation, that accused did not try to run away when they apprehended him, that he did not try to search for any other person other than accused. He denied that he did not join the investigation in the present case, that he is deposing falsely.
14. It is pertinent to note that witness Babu Khan has expired during the pendency of case and accordingly, he is dropped from the list of witnesses vide order dated 15.12.2017.
15. It is pertinent to note that vide separate statement dated 01.09.2017 and 20.07.2018 , accused has admitted the genuineness and correctness of statement under Section 161 Cr.P.C of Ct. Arun as Ex. P-1, FIR is Ex. P- 2, statement of Ct. Rahisuddin and statement of Ct. Ajay as Ex. P-4 and MLC bearing no. 023661 dated 17.10.2016 Ex. PA-1. Accordingly, witnesses Ct. Arun, Ct. Rahisuddin, Ct. Ajay, Ct. Hari Chand and Dr. Nikhil were dropped from the list of witnesses vide order dated 01.09.2017 and 20.09.2017.
16. Thereafter, PE was closed and matter was fixed for SA. Statements of the accused Mohd. Alam under Section 313 Cr.P.C was recorded vide order dated 15.12.2018 by putting entire incriminating evidence to the accused Mohd. Alam. He denied the allegations against him and stated that he has been falsely implicated in the present case. Accused chose not to lead DE, accordingly, DE was closed and the matter was fixed for final arguments.
FIR No.124/16 PS Jama Masjid State Vs. Mohd. Alam Page No. 8 of 15
17. Final argument heard on behalf of defence counsel as well as State and record perused.
APPRECIATION OF FACTS/CONTENTIONS/ANALYSIS AND FINDINGS:
18. Perusal of the record reveals that accused Mohd. Alam was charged with the offences under Section 326 IPC.
19. 326 IPC stipulates that:-
"Voluntarily causing grievous hurt by dangerous weapons or means- Whoever, except in the case provided for by section 335, voluntarily causes grievous hurt by means of any instrument for shooting, stabbing or cutting, or any instrument which, used as a weapon of offence, is likely to cause death, or by means of fire or any heated substance, or by means of any poison or any corrosive substance, or by means of any explosive substance, or by means of any substance which it is deleterious to the human body to inhale, to swallow, or to receive into the blood, or by means of any animal, shall be punished with [imprisonment for life], or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine".
12. It is the case of the prosecution that on 17.10.2016, at about 8:00 pm, in front of Gate No. 2, Jama Masjid, Delhi, accused voluntarily caused grievous hurt to the complainant by sharp edged weapon used for cutting which is likely to cause death by making incised wound over the left side of neck starting from 03 cm lateral to angle of the mandable upto occipital region over the head size 07' X 02' inch and thereby committed offence punishable under Section 326 IPC.
13. Perusal of the record reveals that admittedly weapon of offence has not FIR No.124/16 PS Jama Masjid State Vs. Mohd. Alam Page No. 9 of 15 been recovered in the present case.
14. PW-1/Injured Javed, deposed in his cross examination that accused hit him with surgical blade, whereupon he was confronted with his statement recorded by the police Ex. PW-1/A, wherein it is not so recorded, which reflects material contradiction regarding the weapon of offence.
15. Perusal of the testimony PW-3 HC Arun Kumar (IO) reveals that he categorically deposed that he did not record the description of weapon in the interrogation of accused Ex. PW-1/C, whereupon he was confronted with his statement, wherein description of weapon of offence is recorded as small iron strip (choti lohe ki patti), this is again a material contradiction regarding weapon of offence which raises doubt about the prosecution version.
16. It is also pertinent to note that PW-3 IO categorically deposed that complainant did not tell him about the clear description of weapon of offence.
17. Perusal of the record reveals that there is no material investigation qua weapon of offence which reflects shoddy investigation.
18. PW-1 also deposed in his cross examination that he was alone at the time of incident but in the very next line he deposed that public persons were gathered over there and public persons were also present there, thereby contradicting his own testimony regarding presence of public persons.
19. PW-1 further deposed that he could not try to catch the accused as he became unconscious for sometime after getting hit on his neck from back side, which gives an inference that he has no opportunity to see the face of the accused as admittedly he was hit from the back side and not from the front side.
FIR No.124/16 PS Jama Masjid State Vs. Mohd. Alam Page No. 10 of 15
20. No plausible explanation have been given for not joining/citing other independent public witness to join the investigation.
21. The non-joining of public witnesses, except injured and Babu Khan (expired) is fatal to the prosecution case, particularly when no reasonable explanation has been given by prosecution for not joining of public witnesses and no efforts seem to have been made for joining other independent witnesses.
22. The Law in this regard has also been enunciated clearly in case titled as "Roop Chand Vs. State of Haryana" reported as CC Cases 3 (HC), wherein it was held that where the police has failed to join independent witnesses in the investigation despite their availability and further failed to take action against those who refused to take part in investigation nor their names were noted down by the police, the explanation of the police for not joining independent witnesses is an afterthought and liable to be rejected.
In the case of "Hem Raj v. State of Haryana" AIR 2005 SC 2110, it has been observed that :-
"The fact that no independent witness though available, was not examined and not even an explanation was sought to be given for not examining such witness is a serious infirmity in the prosecution case. Amongst the independent witnesses one who was very much in the know of things from the beginning was not examined by the prosecution. Non-examination of independent witness by itself may not give rise to adverse inference against the prosecution. However, when the evidence of the alleged eye-witnesses raise serious doubts on the point of their presence at the time of actual occurrence, the unexplained omission to examine the independent witness would assume significance."
FIR No.124/16 PS Jama Masjid State Vs. Mohd. Alam Page No. 11 of 15 In the case of "Sahib Singh v. Sate of Punjab" AIR 1997 SC 2417, it has been held as under :-
"Having gone through the record we find much substance in each of the above contentions. Before conducting a search the concerned police officer is required to call upon some independent and respectable people of the locality to witness the search. In a given case it may so happen that no such person is available or, even if available, is not willing to be a party to such search. It may also be that after joining the search, such persons later on turn hostile. In any of these eventualities the evidence of the police officers who conducted the search cannot be disbelieved solely on the ground that no independent and respectable witness was examined to prove the search but if it is found - as in the present case - that no attempt was even made by the concerned police officer to join with him some persons of the locality who were admittedly available to witness the recovery, it would affect the weight of evidence of the Police Officer, though not its admissibility."
In the case of "D. V. Shanmugham v. State of A.P.", AIR 1997 SC 2583 it has been observed as under : -
"It also appeared from the evidence of PW-2 and PW-8 that there were several other people who witnessed the occurrence and they are not the residents of that locality. If such independent witnesses were available and yet were not examined by the prosecution and only those persons who are related to the deceased were examined then in such a situation the prosecution case has to be scrutinised with more care and caution."
In the case of "Pawan Kumar Vs. The Delhi Administration", 1989 Cr.LJ 127 Delhi, in which it was FIR No.124/16 PS Jama Masjid State Vs. Mohd. Alam Page No. 12 of 15 observed as follows :-
"Kalam Singh has to admit that at the time of the arrest and recovery of the knife, there was a lot of rush of public at the bus stop near Subhash Bazar. According to Jagbir Singh, he did not join any public witness in the case while according to Kalam Singh, no public person was present there. It hardly stands to reason that at a place like a bus stop near Subhash Bazar, there would be no person present at a crucial time like 7.30 pm when there is a lot of rush of commuters for boarding the buses to their respective destinations. Admittedly, there is no impediment in believing the version of the police officials but for that the prosecution has to lay a good foundation. At least one of them should have deposed that they tried to contact the public witnesses or that they refused to join the investigation. Here is a case where no effort was made to join any public witness even though number of them were present. No plausible from the side of the prosecution is forthcoming for not joining the Independent witnesses in case of a serious nature like the present one. It may be that there is an apathy on the part of the general public to associate themselves with the police raids or the recoveries but that apart, at least the IO should have made an earnest effort to join the independent witnesses. No attempt in this direction appears to have been made and this, by itself, is a circumstance throwing doubt on the arrest or the recovery of the knife from the person of the accused.'' In the case of "Sadhu Singh Vs. State of Haryana" 2000 (2) CC Cases HC 73, the Court took note of the fact that public witnesses were not joined in investigation to acquit the accused.
In the case of "Massa Singh Vs. State of Punjab" 2000 (2) C.C. Cases HC 11, conviction was set aside on the ground that it was obligatory on the part of investigating officer to take assistance of FIR No.124/16 PS Jama Masjid State Vs. Mohd. Alam Page No. 13 of 15 independent witnesses to lend authenticity to the investigation conducted by him. It was observed as under :-
"The recovery has been effected from a public place. The Investigating Officer could have taken the trouble to associate an independent witness to get the attestation of such independent witness regarding the authenticity of the investigation conducted by him. This aspect of the case has not been properly appreciated by the Court below."
In the case of "Chanan Singh Vs. State" 1986 Crl. Rev. No.720 (P&H) 94, it was held that it was obligatory on the part of the police to join independent witnesses and the statement of official witness that witnesses refused to join investigation was rejected as an afterthought.
In the cases of "Gurbel Singh Vs. State of Punjab" 1991 Crl. Rev. No.504 (P&H) and "Dhanpat Vs. State of Punjab" 2000 (1) CC Cases HC 52, it has been held that non-joining of independent witnesses is fatal to the prosecution case and accused is entitled to benefit of doubt.
23. Furthermore, no efforts seems to have been made to trace out the old man who was present at the spot and could become a material independent witness.
24. Witnesses have also deposed about one secret informer who played crucial role in nabbing the accused but said secret informer is not examined for the reasons best known to the investigating agency.
25. Nothing material came in the testimony of aforesaid public witness/injured so as to establish the guilt of the accused beyond reasonable doubt and other witnesses are formal in nature.
26. In view of the aforesaid facts and circumstances, appreciation of evidence, the absence of recovery of weapon of offence, non FIR No.124/16 PS Jama Masjid State Vs. Mohd. Alam Page No. 14 of 15 examination of other public witnesses, material contradictions in the testimony of key witness, bad investigation, prosecution has failed to establish its case against the accused persons beyond reasonable doubt and accordingly benefit of doubt goes to the credit of the accused and therefore, accused Mohd. Alam stands acquitted of the offences under Section 326 IPC accordingly.
27. Necessary BB with surety along with latest passport size photograph and residence proof furnished in compliance of Section 437 A CrPC. Same is accepted for a period of six months from today.
28. File be consigned to the record room after due compliance.
Pronounced and Signed
SHILPI Digitally signed by
SHILPI JAIN
in the Open Court on 19.12.2018 JAIN(Shilpi Jain)
Date: 2018.12.19
17:48:37 +0530
MM-01(Central)/THC/Delhi
19.12.2018
FIR No.124/16 PS Jama Masjid State Vs. Mohd. Alam Page No. 15 of 15