Delhi District Court
State vs Mohd. Ashfaq Etc on 26 October, 2024
IN THE COURT OF SH. VIRENDER KUMAR KHARTA,
ADDITIONAL SESSIONS JUDGE (FTC)-02, CENTRAL
DISTRICT, TIS HAZARI COURTS, DELHI
In the matter of:-
(Sessions case no. 27737/2016)
FIR No. 292/2014
Police Station Sadar Bazar
Charge-sheet filed under Sections 307/324/34 IPC.
Charges framed against accused 307/34 IPC.
persons.
State Versus 1. Mohd. Ashfaq,
S/o Sh. Shuzauddin,
R/o H. No. 6891, Gali Neemwali,
Ahata Kidara, Bara Hindu Rao,
Delhi.
2. Mohd. Akhlaq,
S/o Sh. Shuzauddin,
R/o H. No. 6891, Gali Neemwali,
Ahata Kidara, Bara Hindu Rao,
Delhi.
3. Mohd. Afaq,
S/o Sh. Shuzauddin,
R/o H. No. 6891, Gali Neemwali,
Ahata Kidara, Bara Hindu Rao,
Delhi.
...Accused Persons.
Date of Institution of case 10.10.2014
Date of Arguments 19.10.2024
Judgment reserved on 19.10.2024
Judgment pronounced on 26.10.2024
Decision Convicted
FIR No. 292/2014, PS: Sadar Bazar,
State Vs. Mohd. Ashfaq & Ors. Page No. 1 of 48
JUDGMENT
1. Accused persons namely Mohd. Ashfaq, Mohd. Akhlaq and Mohd. Afaq are facing trial for the offence punishable under Sec. 307/34 IPC. The story of the prosecution is that on 07.07.2014 at about 06:45 pm at Mosque Patna wali, Bara Hindu Rao, Delhi, all the abovesaid three accused persons in furtherance of their common intention caused injury on the hand and left shoulder of the complainant Mohd. Salim Javed by iron rod and knife and they further caused injury on the abdomen and right buttock region of Salimmuddin with such intention and knowledge and under such circumstances that if by the aforesaid act, they all had caused the death of complainant Mohd. Salim Javed and Salimuddin and they would have been guilty of murder.
2. The brief facts which are borne out from the record of the case are that on 07.07.2014, on receiving DD No. 29A, Ex. PW- 12/A regarding quarrel, PW-15 SI Nisar Ahmad along with PW- 14 Ct. Satish reached at the spot of incident i.e. opposite Patnawali Masjid, Ahata Kitara Chowk, Bara Hindu Rao, Sadar Bazar, Delhi where they came to know that all the injured persons had already been shifted to Hindu Rao Hospital. Thereafter PW-15 SI Nisar Ahmad alongwith PW-14 Ct. Satish reached Hindu Rao Hospital and collected the MLCs of injured namely Salimuddin and Salim Javed. Thereafter PW-15 SI Nisar Ahamd recorded the statement, of complainant Sh. Salim Javed, Ex. PW-1/A and on the basis of his statement, he prepared rukka FIR No. 292/2014, PS: Sadar Bazar, State Vs. Mohd. Ashfaq & Ors. Page No. 2 of 48 and got recorded the present FIR through Ct. Satish at PS Sadar Bazar. After registration of present FIR, further investigation of this case was entrusted to PW-17 SI Girish Gothwal. During investigation, IO/PW-17 SI Girish Gothwal got inspected the spot of incident by Mobile Crime Team and prepared site plan at instance of witness Mohd. Haroon. Thereafter IO in search of accused persons reached gali Neemwali and on pointing out of witness Mohd. Haroon, he apprehended all the three accused persons and brought them to PS. IO arrested all the three accused persons in the present case, conducted their personal search and recorded their disclosure statements. During investigation, IO got recovered weapon of offence i.e. two blood stained knives and one iron rod from the heap of bricks opposite to the Masjid Patnawali, Ahata Kidara, at the instance of accused persons. During investigation, IO obtained final opinion regarding nature of injury on the MLC of injured Salim Javed, which was opined as 'simple sharp' in nature. IO also obtained nature of injury on the MLC of injured Salimuddin which was opined as 'dangerous and sharp' in nature. During investigation, IO sent the exhibits to the FSL and recorded the statements of witnesses under Sec. 161 Cr.PC. On completion of investigation, charge-sheet was filed by the IO before the court through SHO. Supplementary charge- sheet regarding subsequent opinion on weapon of offence was also filed in the court by the IO through SHO.
3. Vide order dated 0 6 . 1 0 . 2 0 1 4 , copy of the charge- sheet under Section 207 Cr.P.C was supplied to accused FIR No. 292/2014, PS: Sadar Bazar, State Vs. Mohd. Ashfaq & Ors. Page No. 3 of 48 persons and vide order dated 07.10.2014 the case was committed to the Court of Sessions under Sec. 209 Cr.P.C.
4. Vide order dated 04.12.2014 Ld. Predecessor Court was pleased to frame charges under Sec. 307/34 IPC against all the three accused persons to which they pleaded not guilty and claimed trial.
5. To prove its case, prosecution has examined 19 witnesses. The testimonies of prosecution witnesses along with its nature has been discussed briefly in the following paragraphs.
6. PW-1 Sh. Salim Javed is the complainant as well as one of the injured person in this case. He deposed that on 07.07.2014 at about 06:45 pm, he along with his father Mohd. Haroon was present at Mosque, Patnawali, Bara Hindu Rao where some altercation was going on between Mohd. Raees and accused Mohd. Afaq. He further deposed that accused Mohd. Afaq started using filthy language against Raees inside the Mosque and on this his father removed him from the Mosque by saying that you will not use filthy language inside the Mosque. He further deposed that on this Afaq became very angry and went away from there by saying that he will teach him a lesson. He further deposed that after sometime accused persons namely Afaq, Ashfaq and Akhlaq who were brothers, came there with knives and iron rod. He further deposed that accused Akhlaq assaulted him with knife on his left shoulder and accused Ashfaq assaulted him on his right buttock. He further deposed that in the meantime, his uncle Salimuddin came there to resecue him and FIR No. 292/2014, PS: Sadar Bazar, State Vs. Mohd. Ashfaq & Ors. Page No. 4 of 48 he tried to intervene but all three accused persons started beating his uncle and he was given knife blow on the right portion of his abdomen by accused Afaq. He further deposed that his relative Bobby removed them to Hindu Rao Hospital. He has proved his complaint, Ex. PW-1/A, given to the Police. In his cross- examination, he deposed that there was no previous enmity with accused persons prior to the incident. He also deposed that Mohd. Raees was known to him since his childhood being friend of his father and they had family/friendly relations with Mohd. Raees. He also deposed that when accused Mohd. Afaq started using filthy language, the persons present in the Mosque started asking Mohd. Afaq to leave the Mosque and Mohd. Afaq and Mohd. Raees were forcibly turned out of the Mosque by his father and other persons present in the Mosque. He denied the suggestion that they gave any beatings to Mohd. Afaq or that while they were giving beatings to Mohd. Afaq, his brothers who were present outside the mosque had objected or that they were also given beatings. He also denied the suggestion that they had attacked accused Mohd. Afaq with knife due to which his two fingers were severely injured. He also denied the suggestion that he assaulted accused Mohd. Afaq with bricks on his left eye, elbow and chest. He also denied the suggestion that accused persons namely Mohd. Afaq, accused Mohd. Ashfaq and accused Mohd. Akhlaq did not come with the knives, iron rod or bricks or that they had not assaulted them or they had not caused any injuries or that they had caused injuries to accused persons. He denied the suggestion that he was deposing falsely to save FIR No. 292/2014, PS: Sadar Bazar, State Vs. Mohd. Ashfaq & Ors. Page No. 5 of 48 himself as he was an accused in cross-case bearing FIR No. 293/2014 PS Sadar Bazar.
7. PW-2 Mohd. Raees, deposed that on 07.07.2014 at about 06:30 pm, he had gone for Namaj at the Mosque, Patnawali, Bara Hindu Rao and he was talking with accused Afaq and during conversation, accused Afaq started abusing him. He further deposed that Mohd. Haroon who was known to him being the resident of same locality objected to the conduct of accused Afaq and asked him not use filthy language inside the Mosque and also asked Mohd. Afaq to go outside the Mosque. He further deposed that at that time accused Mohd. Afaq left the Mosque by saying that he will teach a lesson. He further deposed that after sometime, accused persons namely Mohd. Afaq, Mohd. Ashfaq and Mohd. Aklaq who were brothers came there with knives and iron rod. He also deposed that accused Mohd. Aklaq assaulted Salim Javed on his head with iron rod due to which he fell on the ground and accused Mohd. Afaq assaulted him with knife on his left shoulder and accused Mohd. Ashfaq assaulted him with knife on his right buttock. He further deposed that in the meantime Salimuddin, uncle of Salim Javed came there to rescue Salim Javed and he tried to intervene. He further deposed that all the three accused persons thereafter started beating Salimuddin and he was given knife blow on the right portion of his abdomen by accused Mohd. Afaq. In his cross-examination, he deposed that accused persons were known to him since their childhood being the residents of the same vicinity. He further deposed that there FIR No. 292/2014, PS: Sadar Bazar, State Vs. Mohd. Ashfaq & Ors. Page No. 6 of 48 was no previous enmity amongst accused, complainant, Salimuddin, Mohd. Harun and him. He further deposed that on the day of incident, he and accused Mohd. Afaque were having normal conversation and Maulvi was not present when their conversation was going on. He also deposed that at the time of incident, around 20-22 persons were present in the Mosque and besides complainant, people present in the mosque also asked accused Mohd. Afaq to leave the mosque. He also deposed that accused Mohd. Afaq was removed from the mosque forcefully. He denied the suggestion that accused Mohd. Afaq was being removed forcefully from the mosque, complainant and Mohd. Harun started giving beatings to accused Mohd. Afaq. He also denied the suggestion that when the brothers of accused Mohd. Afaq objected to the beatings of their brother Mohd. Afaq, they were also beaten up by Mohd. Harun and the complainant along with other persons. He also denied the suggestion that Mohd. Harun attacked accused Mohd. Afaq with knife or that due to this Mohd. Afaq sustained injuries on his fingers or that complainant also assaulted the brothers of accused Mohd. Afaq with brick and caused injuries upon his head by the brick. He also denied the suggestion that he was deposing at the behest of Mohd. Harun and his son Saleem Javed.
8. PW-3 Mohd. Haroon, is the father of complainant as well as eyewitness of incident. He deposed that on 07.07.2014 at about 06:45 pm he along with his son Salim Javed was present at Mosque Patnawali, Bara Hindu Rao and preparation was going FIR No. 292/2014, PS: Sadar Bazar, State Vs. Mohd. Ashfaq & Ors. Page No. 7 of 48 on for iftar. He further deposed that he saw some altercation going on between Mohd. Raees and Mohd. Afaq and all of sudden accused Mohd. Afaq started using very filthy language against Raees that too inside the Mosque. He further deposed that he asked accused Mohd. Afaq that it was not good to use such filthy language inside the Mosque and he removed accused Mohd. Afaq from the Mosque and on this accused Mohd. Afaq became very angry and went away from there by saying that he will teach him a lesson. He further deposed that after sometime accused Mohd. Afaq along with his brothers namely accused Mohd. Ashfaq and Mohd. Akhlaq came there with knives and iron rod. He also deposed that accused Akhlaq assulted his son Salim on his head with iron rod and accused Afaq assaulted him with knife on his left shoulder and accused Ashfaq assaulted him with knife on his right buttock. He further deposed that in the meanwhile his brother namely Salimuddin came there to rescue his son and he tried to intervene but accused persons assauled his brother and son. He further deposed that on 07.07.2014 he joined the investigation of present case with IO and on his pointing out, accused persons were arrested from the gali near their house. He proved site plan of the spot as Ex. PW-3/A, arrest memos of accused Afaq, Ashfaq and Akhlaq as Ex. PW-3/B to Ex. PW-3/C, personal search memos of accused as Ex. PW-3/E to Ex. PW-3/G and their disclosure statements as Ex. PW-3/H to Ex. PW-3/J. He also proved sketches of bloodstained knives recovered at instance of accused Afaq and Ashfaq and sketch of iron rod recovered at instance of accused Akhlaq as Ex. PW-3/L, FIR No. 292/2014, PS: Sadar Bazar, State Vs. Mohd. Ashfaq & Ors. Page No. 8 of 48 Ex. PW-3/M & Ex. PW-3/N respectively. He also proved the seizure memo of recovered weapon as Ex. PW-3/O. In his cross- examination, he deposed that prior of incident in question, he had cordial relationship with accused persons. He also deposed that he was neither Maulvi nor care taker of the mosque but he visit the Mosque being a Muslim and he served Namazies there. He also deposed that nobody asked accused Mohd. Afaq to go outside the Mosque on his using filthy language inside the Mosque. He denied the suggeation that while removing Afaq forcibly from the Mosque, he along with his son gave him beatings. He also denied the suggestion that accused Afaq was beaten up by him or that when his brothers came to rescue, he picked up knife from their fruit stall and he had caused injuries to Mohd. Afaq with the said knife on his left hand finger. He admitted that one case FIR No. 293/2014, PS Sadar Bazar was registered against them. He also deposed that his statement was recorded in the police station on the day of incident and on the day of arrest of accused persons i.e. 07.07.2014 & 08.07.2014. He further deposed that he participated in the investigation and was present at the time of recovery of the case property.
9. PW-4 Sh. Salimuddin, is the uncle of the complainant as well as one of the injured in the present case. He deposed that on 07.07.2014 he was sleeping at the second floor of his house due to month of Ramdan and at about 06:30 pm he heard some noice and came at the window and saw that all the accused persons were beating his nephew namely Salim Javed and many persons FIR No. 292/2014, PS: Sadar Bazar, State Vs. Mohd. Ashfaq & Ors. Page No. 9 of 48 were also present there. He further deposed that he immediately came down to save his nephew Saleem Javed from accused persons but in the meantime accused Akhlaq hit iron rod on the hand of his nephew and accused Afaq gave a knife blow on the left shoulder of his nephew Saleem Javed and accused Ashfaq gave knife blow on the the buttock of his nephew Saleem Javed. He further deposed that he tried to save his nephew from the accused persons but accused Afaq attacked him with knife and inserted the knife into right side of his stomach. He further deposed that he became unconsicious and somebody had taken him to HRH hospital where an operation was conducted of his stomach. In his cross-examination, he deposed that Mohd. Haroon was his real brother and he was not a Maulvi in the aforesaid Mosque. He admitted that 40-50 persons were present in the mosque at the time of incident. He also deposed that when accused persons brought the iron rod and knives at the spot, nobody came from public persons gathered there to pacify the matter. He admitted that there was no previous enmity between complainant and the accused persons. He denied the suggestion that the iron rod and knives which were identified by him in the court had been planted upon the accused persons and he had identified the same in the court at the instance of IO. He also denied the suggestion that he deposed falsely just to save himself from the cross-case which had been registered against him by the accused persons.
10. PW-5 Sh. Nadeem, is one of the eyewitnesses of the FIR No. 292/2014, PS: Sadar Bazar, State Vs. Mohd. Ashfaq & Ors. Page No. 10 of 48 incident. He deposed that on 07.07.2014 at about 06:45 pm, he was purchasing fruits etc. for iftari near Patnawali Mosque, Ahata Kidara, Bara Hindu Rao, Delhi and in the meantime he heard some noise and saw that accused Afaq was abusing inside the Mosque and Haroon resident of local area took out accused Afaq from the mosque and on that accused Afaq left extending threats to Haroon. He further deposed that after 5-10 mintues accused Afaq along with his brothers i.e. accused Ashfaq and Akhlaq came there and accused Akhlaq was having iron rod in his hand and accused Ashfaq and Afaq were having knives in their hands. He further deposed that accused Akhlaq gave iron rod blow on the head of Saleem Javed son of abovesaid Haroon and accused Afaq gave blow of knife on the left shoulder of Saleem Javed and accused Ashfaq gave a knife blow on the buttock of Saleem Javed. He further deposed that Salimuddin, uncle of Saleem Javed reached there and tried to save Saleem Javed from accused person and on that accused Afaq gave a knife blow in the right side stomach of Salimuddin and he fell down and became unconsicous. He further deposed that he left the spot with fruits as it was time of iftar and his family members were waiting for Iftari/fruits. In his cross-examination, he deposed that there were many people more than 60 at the place of incident. He also deposed that he had never seen any prior quarrel or dispute of the accused with the victims prior to the incident in question. He denied the suggestion that that he deposed before the court at the instance of the complainant and the injured persons or that he was a tutored witness. He also denied the suggestion that accused FIR No. 292/2014, PS: Sadar Bazar, State Vs. Mohd. Ashfaq & Ors. Page No. 11 of 48 Akhlaq had not come to the spot with any iron rod or that accused persons Ashfaq and Afaq did not bring any knife at the spot in his presence. He also denied the suggestion that accused persons had not given any blow with iron and knives to Haroon, Salimuddin and Saleem Javed. He also deposed that he had not tried to make call to the police because he was having Iftari in his hand and he also had not tried to get the injured persons released from the accused persons as accused persons were having knives in their hands. He denied the suggestion that he had not seen the incident as he was not present at the spot at that point of time or that he was made a witness at the instance of injured persons and the complainant.
11. PW-6 Dr. Ritesh Chauhan, CMO (Casualty), HRH Hospital has proved the MLCs of injured Salimuddin and Saleem Javed as Ex. PW-6/A & Ex. PW-6/B. This witness was not cross- examined on behalf of accused persons despite opportunity given to them.
12. PW-7 Ct. Sudesh Kumar, was the photographer of Mobile Crime Team. He proved two photographs Ex. PW-7/1 & Ex. PW-7/2 of the scene of crime. He also proved the negatives of photographs as Ex. PW-7/3 to Ex. PW-7/4. This witness was not cross-examined on behalf of accused persons despite opportunity given to them.
13. PW-8 HC Prem Pal Singh, was the Duty Officer who proved the copy of FIR No. 292/2014, Ex. PW-8/A, endorsement on rukka Ex. PW-8/B and certificate under Sec. 65B of The FIR No. 292/2014, PS: Sadar Bazar, State Vs. Mohd. Ashfaq & Ors. Page No. 12 of 48 Evidence Act, Ex. PW-8/C. In his cross-examination, he admitted that he had also recorded FIR No. 293/2014 at PS Sadar Bazar.
14. PW-9 Ct. Surender, deposed that on 30.07.2014, as per direction of IO, he deposited five sealed pullandas/parcels to FSL Rohini vide RC No. 45/21/14, Ex. PW-9/A. He also proved acknowledgment of case acceptance at the office of FSL as Ex. PW-9/B. In his cross-examination, he deposed that MHC(M) had not opened the abovesaid pullandas to see the articles contained, in his presence. He denied the suggestion that pullandas were not properly sealed when same were received by him or they were not deposited in proper sealed condition before the FSL.
15. PW-10 SI Nagender, was the In-Charge of Crime Team. He proved his detailed report Ex. PW-10/A. In his cross- examination, he deposed that during his presence there, other police staff including IO was also there and number of other public persons were also present. He also deposed that during his presence at the spot, IO did not even try to ask any public person at the spot to inquire about the incident.
16. PW-11 HC Hari Singh, was the MHC(M), who proved the entries made by him in register no. 19 as Ex. PW-11/A regarding deposit of five sealed pullandas by IO. He also proved RC No. 45/21/14, Ex. PW-9/A regarding handing over the exhibits for depositing the same to FSL Rohini and entry in this regard, Ex. PW-11/B at point 'X'. He also proved copy of acknowledgment of FSL as Ex. PW-9/B. In his cross-examination, he admitted that FIR No. 292/2014, PS: Sadar Bazar, State Vs. Mohd. Ashfaq & Ors. Page No. 13 of 48 he did not know as to what was there in the said pullandas. He denied the suggestion that pullandas were not deposited in intact condition or that the same were subsequently manipulated by the IO. He also denied the suggestion that the pullandas were deliberately tempered by the IO during the time they were in Maalkhana.
17. PW-12 ASI Amar Nath, was the duty officer at PS Sadar Bazar who proved DD No. 29A, Ex. PW-12/A regarding quarrel near Masjid Chowk, Ahata Khitara, PS Sadar Bazar, N-54 operator. In his cross-examination, he deposed that N-54 operator had not told him the name of informer. He also deposed that he had not made a call on the contact number of the informer provided to him by operator.
18. PW-13 Ct. Ravinder, was the Duty Constable at Hindu Rao Hospital. He deposed that on 07.07.2014 concerned doctor handed over him two sealed pullandas duly sealed with the seal of HRH containing wearing clothes of both the injured persons. He also deposed that he handed over both the pullandas and sample seal to IO which were seized by him vide seizure memos Ex. PW-13/A & Ex. PW-13/B respectively. In his cross- examination, he deposed that the concerned doctor had given the abovesaid sealed pullandas at about 12 night in the intervening night of 07-08.07.2014 and the said pullanda was sealed in his presence by the staff of doctor. He denied the suggestion that pullandas were not properly sealed when he received the same FIR No. 292/2014, PS: Sadar Bazar, State Vs. Mohd. Ashfaq & Ors. Page No. 14 of 48 from doctor and subsequently when the same handed over to the IO.
19. PW-14 Ct. Satish Kumar, deposed that on receiving DD No. 29A, Ex. PW-12/A he along with ASI Nisar Ahmed reached at the spot of incident i.e. in front of Patnawali Masjid, Ahata Kidara Chowk, Bada Hindu Rao, Sadar Bazar where many public already gathered and they came to know that injured persons had already shifted to Hindu Rao Hospital. He further deposed that they reached HRH hospital and IO collected the MLCs of injured persons namely Salim Javed and Salimuddin. He further deposed that as Salimuddin was unfit for statement, IO recorded statement of injured Salim Javed and on the basis of same, he prepared rukka and handed over the same to him for registration of FIR. He further deposed that after registration of FIR, he handed over copy of FIR to SI Girish Gotwal as the further investigation of this case was entrusted to him. He narrated about the proceedings conducted by the IO at the spot and proved site plan, Ex. PW-3/A. He also proved the arrest memos, personal search memos and disclosure statements of accused persons namely Mohd. Ashfaq, Mohd. Akhlaq and Mohd. Afaq as Ex. PW-3/B to Ex. PW-3/K. He also narrated about the recovery of weapons of offence i.e. knives and iron rod at instance of accused Mohd. Ashfaq and Mohd. Afaq and proved their sketches and seizure memos as Ex. PW-3/L to Ex. PW-3/O. During his examination in the court, this witness has duly identified accused persons and case properties. This witness was cross-examined at length on FIR No. 292/2014, PS: Sadar Bazar, State Vs. Mohd. Ashfaq & Ors. Page No. 15 of 48 behalf of accused persons. In his cross-examination, he deposed that IO did not record the statement of any witness in his presence at the spot. He also deposed that he did not remember if the PCR officials, who had brought the injured to the hospital, had met the IO in the hospital. He also deposed that the place of recovery of weapon of offence was near the stairs of the Mosque and the public persons/Namazis were passing through the place from where the weapon of offence was recovered. He also deposed that IO had not joined any public person or Namazi in the investigation at the said time. He denied the suggestion that he had not joined the investigation of the present case or that accused persons had not made any disclosure statement in his presence or that they were forcefully asked to sign certain blank papers in the PS which were later on converted into various memos.
20. PW-15 SI Nisar Ahmad, is the First IO of the present case. He deposed that on receiving DD No. 29A, Ex. PW-12/A he along with Ct. Satish reached at the spot of incident i.e. in front of Patnawali Masjid, Ahata Kidara Chowk, Bada Hindu Rao, Sadar Bazar where he came to know that injured persons had already shifted to Hindu Rao Hospital. He further deposed that he alongwith Ct. Satish reached HRH hospital and collected the MLCs of injured persons namely Salim Javed and Salimuddin. He further deposed that he recorded statement of injured Salim Javed, Ex. PW-1/A and made endorsement, Ex. PW-15/A and handed over the same to Ct. Satish for registration of FIR. He FIR No. 292/2014, PS: Sadar Bazar, State Vs. Mohd. Ashfaq & Ors. Page No. 16 of 48 further deposed that after registration of FIR, further investigation of this case was entrusted to SI Girish Gotwal. In his cross-examination, he deposed that number of public persons were present at the spot when he reached there and he had not recorded the statement of public person who were present at the spot. He also deposed that he again visited the spot on the same night in connection with cross-FIR lodged by accused persons and recorded statement of persons in respect of the cross-FIR No. 293/2014. He admitted that accused persons had also suffered injuries.
21. PW-16 SI Kuldeep, deposed that on 08.08.2014 further investigation of this case was entrusted to him. He further deposed that during investigation he recorded statement of PW Nadeem, collected the nature of injuries on MLC of Salimuddin and prepared the charge-sheet. In his cross-examination, he deposed that nature of injuries was not opined in his presence by the concerned doctor and Nadeem was alone when he recorded his statement. He denied the suggestion that nature of injuries as 'dangerous' was opined by the doctor at his instance or that witness Nadeem was planted as a witness at instance of complainant and Salimuddin to prove their case.
22. PW-17 SI Girish Gothwal, is the Investigating Officer of the present case. He deposed that on the day after the registration of the FIR of the present case, the investigation was entrusted to him. He deposed on the lines of PW-14 Ct. Satish and deposed about seizure of two sealed pullandas containing clothes of FIR No. 292/2014, PS: Sadar Bazar, State Vs. Mohd. Ashfaq & Ors. Page No. 17 of 48 injured persons, preparation of site plan at instance of Mohd. Haroon and inspection of spot of incident by Mobile Crime Team. He also narrated about arrest of accused persons at instance of Mohd. Haroon and proved their arrest memos, personal search memos and their disclosure statements. He also narrated about recovery of weapon of offences i.e. knives and iron rod at instance of accused persons and proved their sketches and seizure memos. He also obtained nature of injuries on the MLCs of injured persons, obtained subsequent opinion about weapon of offence and sent the exhibits to FSL for examination. During his examination in court, this witness has correctly identified accused persons as well as case properties. This witness was cross-examined at length on behalf of accused persons. In his cross-examination, he deposed that he had not met Salimuddin in the hospital when he reached there as he was under observation as stated by the doctor. He also deposed that the place of incident was in front of Mosque and there were public persons present near the Mosque. He also deposed that he had not made any inquiry from the caretaker or the persons who were present in the Mosque with respect to any quarrel that took place in front of the Mosque. He also deposed that Mobile Crime Team had not lifted any chance-print or incriminating articles from the spot. He also deposed that all the three accused persons were apprehended by him from Gali Neemwali at about 04:00 pm and no public person was present at the time of their apprehension. He also deposed that as far as he remember, the Chhuries (knives) which were recovered having only blood FIR No. 292/2014, PS: Sadar Bazar, State Vs. Mohd. Ashfaq & Ors. Page No. 18 of 48 stained on it and there was no sand on the Chhuries (knives). He denied the suggestion that no Chhuries (knives) and iron rod were recovered at the instance of accused persons. He denied the suggestion that despite the knowledge that the accused persons were not the aggressors in the present case, they were falsely implicated in the present case by him at the instance of complainant.
23. PW-18 Inspector Sanjay Kumar Singh, deposed that on 26.09.2014 investigation of this case was entrusted to him. He deposed that he prepared charge-sheet and filed before Hon'ble Court for judicial verdict. He also deposed that on 15.05.2015 he filed FSL result along with an application, Ex. PW-18/A and forwarding letter, Ex. PW-18/B. In his cross-examination, he deposed that he had not recorded statement of any witness in the present case and he had not seen case property of the present case before filing the charge-sheet.
24. PW-19 Dr. Saurabh Jain, Medical Superintendent has proved request letter of SI Ravi Kumar regarding subsequent opinion of weapon of offence, diagrams of weapons and his detailed opinion regarding weapon of offence as Ex. PW-19/A to Ex. PW-19/H. This witness was not cross-examined on behalf of accused persons despite opportunity given to them.
25. After closing of Prosecution Evidence, separate statement of all the three accused persons were recorded under Sec. 313 Cr.PC, wherein they denied all the charges against them. They FIR No. 292/2014, PS: Sadar Bazar, State Vs. Mohd. Ashfaq & Ors. Page No. 19 of 48 claimed that it was a false case filed by the complainant to take revenge from them and their family members to avoid criminal proceedings against them for giving merciless beatings to Afaq.
26. After recording of their statement under Sec. 313 Cr.P.C, accused persons have examined two witnesses in their defence. The testimony of defence witnesses have been discussed in brief as under:-
27. DW-1 Mohd. Arif, deposed that on 07.07.2015 he went to Sadar for purchasing some items and at about 06:45 pm, he reached Mosque Patnawali Gali, Bara Hindu Rao for offering Namaz where he saw accused Afaq in injured condition, having injury in his hand. He further deposed that one of his brother was also seen injured, having injury on his head. He further deposed that accused Afaq requested him for handkerchief for wrapping the same around injury and he also took his phone for making call at his house. He further deposed that he did not know anything else and quarrel was going on when he went to Mosque. In this cross-examination he deposed that he did not now how accused Afaq and his brother sustained injury and he also did not know who were involved in the quarrel.
28. DW-2 Mohd Amir, deposed that on 07.07.2014 he went to Mosque, Patnawali Gali for offering Namaz. He further deposed that when he was coming back from the same he saw some people were fighting and some people were having knife and iron rod. He further deposed that one inflicted injury with knife on the FIR No. 292/2014, PS: Sadar Bazar, State Vs. Mohd. Ashfaq & Ors. Page No. 20 of 48 hand of accused Afaq and one of them hit accused Akhlaq with iron rod on his head. He also deposed that people gathered there and someone called at 100 number. He also deposed that police arrived at the spot and shifted the injured persons to the hospital. In his cross-examination, he denied the suggestion that accused Ashfaq, Akhlaq and Afaq were armed with iron rod and knife. He also denied the suggestion that they had caused injury to the boy who was preparing sarbat and was offering fruits to Namazi. He also denied the suggestion that two more injured persons apart from Akhlaq and Afaq were removed to hospital.
29. Final arguments were advanced by Sh. Pankaj Kumar Ranga, Ld. Addl. PP for the State and Sh. Amit Kumar, Ld. Counsel for all the accused persons.
30. Ld. Addl. PP for the State argued that the prosecution has proved its case beyond reasonable doubt and all the prosecution witnesses have supported the prosecution story and have corroborated each other's version. To substantiate his submissions, he argued that PW-1/complainant Sh. Salim Javed, eyewitness PW-2 Mohd. Raees, eyewitness PW-3 Mohd. Haroon, injured PW-4 Salimuddin and eyewitness PW-5 Nadeem have completely supported the prosecution story and they have corroborated each other's version. He also argued that MLCs of injured persons have been duly proved by PW-6 Dr. Ritesh Chauhan. He also argued that PW-19 Dr. Saurabh Jain has given specific opinion regarding the use of weapon in commission of offence which has been recovered at the instance of accused FIR No. 292/2014, PS: Sadar Bazar, State Vs. Mohd. Ashfaq & Ors. Page No. 21 of 48 persons. He also argued that the accused persons were aggressors in the present case which is clear from the testimonies of PW-1 Sh. Salim Javed, PW-2 Mohd. Raees, PW-3 Mohd. Haroon, PW- 4 Salimuddin and PW-5 Nadeem. He also argued that the defence taken by the accused persons is vague in nature and DW-1 and DW-2 have failed to create any doubt on the prosecution story. He also argued that the all the proceedings have been duly proved by the police witnesses and all the prosecution witnesses are of the sterling quality and hence all the accused persons should be convicted under all the Sections of law under which charges have been framed against them.
31. Per Contra Ld. Defence Counsel argued that the prosecution has miserably failed to prove its case beyond reasonable doubt. To substantiate his point, he argued that Bobby who took the injured persons to the hospital has not been examined as PW. He also argued that no independent eyewitness has been examined by the IO. He also argued that PW-1 Sh. Saleem Javed and PW-3 Mohd. Haroon had no authority to distribute sarbat and fruits at the Mosque. He also argued that PW-2 Mohd. Raees and PW-3 Mohd. Haroon had admitted that they had no enmity with the accused persons before the present incident. He also argued that injuries sustained by the injured persons in the present case are self inflicted injuries. He also argued that the accused persons were attacked by PW-1 Salim Javed, PW-2 Mohd. Raees, PW-3 Mohd. Haroon and PW-4 Salimuddin and FIR No. 293/2014, PS Sadar Bazar was FIR No. 292/2014, PS: Sadar Bazar, State Vs. Mohd. Ashfaq & Ors. Page No. 22 of 48 registered against them. He further argued that no independent witness was joined in the investigation at the time of recovery of alleged case property. He further argued that since the prosecution has failed to prove its case against accused persons beyond reasonable doubts, all the accused persons should be acquitted under all sections of law under which charges has been framed against them.
32. In the present case, charges under Sec. 307/34 IPC have been framed against the accused persons. These Sections have been elaborated as under:-
307. 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 cause to any person by such act, the offender shall be liable either to [imprisonment for life], or to such punishment as is hereinbefore mentioned.
Attempts by life convicts: When any person offending under this section is under sentence of [imprisonment for life], he may, if hurt is caused, be punished with death.
34. Acts done by several persons in furtherance of common intention.
When a criminal act is done by several persons, in FIR No. 292/2014, PS: Sadar Bazar, State Vs. Mohd. Ashfaq & Ors. Page No. 23 of 48 furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone.
33. I have thoughtfully considered the arguments advanced, perused the material available on record, scrutinized the evidence led by the prosecution and gone through the relevant provisions of law. I have also considered the judgments relied upon by the Ld. Addl. PP for the State as well as Ld. Counsel for accused persons.
34. To prove its case, prosecution has to to prove the accused persons had the intention to kill PW-1 Salim Javed and PW-4 Sh. Salimuddin and they had shared common intention at the time of commision of offence. PW-1 Salim Javed is the complainant/injured in the present case. PW-4 Salimuddin is also injured in the present case. PW-2 Mohd. Raees, PW-3 Mohd. Haroon and PW-5 Nadeem are the eyewitnesses of the alleged incident. The testimonies of the prosecution witnesses and the defence witnesses are to be appreciated as per the established principles of law.
35. PW-1/complainant Sh. Salim Javed deposed that on 07.07.2014 at about 06:45 pm, he along with his father PW-3 Mohd. Haroon was present at the Mosque, Patnawali, Bara Hindu Rao and he was preparing sarbat while his father PW-3 Mohd. Haroon was cutting fruits and at that time some altercation was going on between PW-2 Mohd. Raees and accused Mohd. Afaq. PW-2 Mohd. Raees has corroborated the FIR No. 292/2014, PS: Sadar Bazar, State Vs. Mohd. Ashfaq & Ors. Page No. 24 of 48 version of PW-1/complainant Salim Javed by deposing that on 07.07.2014, he had gone to the abovesaid Masjid and at that time he was talking to accused Mohf. Afaq who started abusing him. PW-3 Sh. Mohd. Haroon has also corroborated of the version of PW-1 Sh. Salim Javed and PW-2 Sh. Mohd. Raees by deposing that on 07.07.2014 at about 06:45 pm, he was present at Mosque, Patnawali, Bara Hindu Rao and preparation was going on for iftar and at that time he was cutting fruits and his son PW-1 Salim Javed was preparing sarbat. He also deposed that some altercation was going on between PW-2 Mohd. Raees and accused Mohd. Afaq and all of sudden accused Mohd. Afaq started using filthy language against Mohd. Raees and too inside the Mosque. PW-5 Sh. Nadeem who an independent eyewitness has also deposed on the lines of PW-1 Sh. Salim Javed, PW-2 Mohd. Raees and PW-3 Sh. Mohd. Haroon and has also specifically deposed that accused Mohd. Afaq was abusing inside the mosque. Accused Mohd. Afaq and the other accused persons have not disputed the presence of PW-1 Sh. Salim Javed, PW-2 Mohd. Raees, PW-3 Sh. Mohd. Haroon and PW-5 Sh. Nadeem at the spot of incident i.e. Masjid Patnawali, Bara Hindu Rao. There is complete consistency in the testimonies of PW-1 Sh. Salim Javed, PW-2 Mohd. Raees, PW-3 Sh. Mohd. Haroon and PW-5 Sh. Nadeem and all have corroborated each other's version.
36. PW-1/complainant Sh. Salim Javed deposed that since accused Mohd. Afaq was using filthy language against PW-2 Mohd. Raees inside the mosque, his father i.e. PW-3 Mohd.
FIR No. 292/2014, PS: Sadar Bazar, State Vs. Mohd. Ashfaq & Ors. Page No. 25 of 48 Haroom romoved him from the Mosque by saying that he will not use filthy language inside the Mosque on which accused Mohd. Afaq got angry and went away from there by saying that he will teach him a lesson. PW-2 Mohd. Raees has corroborated the version of PW-1/complainant Sh. Salim Javed by deposing that he was talking to accused Mohd. Afaq and during conversation, accused Mohd. Afaq started abusing him. He also deposed that PW-3 Mohd. Haroon objected to the conduct of accused Mohd. Afaq and asked him not to use filthy language inside the Mosque and asked accused Mohd. Afaq to go out of the Mosque on which accused Mohd. Afaq left from there by saying that he will teach Mohd. Haroon a lesson. PW-3 Sh. Mohd. Haroon has corroborated the version of PW-1/complainant Sh. Salim Javed and PW-2 Sh. Mohd. Raees by deposing that he asked accused Mohd. Afaq that it was not good to use such filthy language inside the Mosque and he removed accused Mohd. Afaq out of the Mosque on which accused Mohd. Afaq became very angry and went away from there by saying he will teach him a lesson. PW-5 Sh. Nadeem has also deposed on the lines of PW-1/complainant Sh. Salim Javed, PW-2 Mohd. Raees and PW-3 Mohd. Haroon. Thus, PW-1/complainant Sh. Salim Javed, PW-2 Mohd. Raees, PW-3 Mohd. Haroon and PW-5 Sh. Nadeem have corroborated each other's version on the same set of fact and there is complete consistency in their versions. In cross-examination, accused persons have failed to create any doubt on the veracity of PW-1/complainant Sh. Salim Javed, PW-2 Mohd. Raees, PW-3 FIR No. 292/2014, PS: Sadar Bazar, State Vs. Mohd. Ashfaq & Ors. Page No. 26 of 48 Mohd. Haroon and PW-5 Sh. Nadeem.
37. PW-1/complainant Sh. Salim Javed deposed that after sometime, accused persons namely Mohd. Afaq, Mohd. Ashfaq and Mohd. Akhlaq came there i.e. to the Mosque and at that time accused Afaq and Mohd. Ashfaq were armed with knives while accused Mohd. Akhlaq was armed with iron rod and at that time he was standing outside the gate of Mosque. PW-2 Mohd. Raees also deposed that after sometime accused persons namely Mohd. Afaq, Mohd. Ashfaq and Mohd. Akhlaq who were brothers came there and at that time, accused Afaq and Ashfaq were armed with knives while accused Akhlaq was armed with iron rod and at that time he was standing outside the gate of Mosque. PW-3 Mohd. Haroon has corroborated the version of PW-1/complainant Sh. Salim Javed and PW-2 Mohd. Raees by deposing that after some time accused Mohd. Afaq, Mohd. Ashfaq and Mohd. Akhlaq came there and at that time accused Mohd. Afaq and Mohd. Ashfaq were armed with knives while accused Mohd. Akhlaq was armed with iron rod and at that time his son PW-1/complainant Sh. Salim Javed was standing outside the gate of Mosque. PW-5 Sh. Nadeem has also corroborated the version of PW-1/complainant Sh. Salim Javed, PW-2 Mohd. Raees and PW-3 Mohd. Haroon. PW-1/complainant Sh. Salim Javed, PW-2 Mohd. Raees, PW-3 Mohd. Haroon and PW-5 Sh. Nadeem have correctly identified the accused persons in the court. Thus, PW- 1/complainant Sh. Salim Javed, PW-2 Mohd. Raees, PW-3 Mohd. Haroon and PW-5 Sh. Nadeem have corroborated each FIR No. 292/2014, PS: Sadar Bazar, State Vs. Mohd. Ashfaq & Ors. Page No. 27 of 48 other's version with respect to the coming of accused persons at the spot, location of PW-1/complainant Sh. Salim Javed outside the gate of Masjid and possession of respective weapons by the accused persons. There is complete consistency in the versions of PW-1/complainant Sh. Salim Javed, PW-2 Mohd. Raees, PW-3 Mohd. Haroon and PW-5 Sh. Nadeem with respect to the same set of fact. Accused persons have failed to put any dent on the testimonies of abovesaid witnesses in the cross-examination.
38. PW-1/complainant Sh. Salim Javed deposed that accused Mohd. Akhlaq assaulted him with iron rod due to which he fell down on the road. He further deposed that accused Mohd. Afaq assaulted him with knife on his left shoulder while accused Mohd. Ashfaq assaulted him with knife on his right buttock. PW- 6 Dr. Ritesh Chauhan who proved the MLC of PW-1/complainant Sh. Salim Javed, Ex. PW-6/B has corroborated the version of PW-1/complainant Sh. Salim Javed with respect to the injuries sustained by him at specific parts of his body stated by PW-1/complainant Sh. Salim Javed. All the injuries stated by PW-1/complainant Sh. Salim Javed have been specifically mentioned by PW-6 Dr. Ritesh Chauhan in MLC of PW-1/complainant Sh. Salim Javed, Ex. PW-6/B. PW-6 Dr. Ritesh has specifically deposed that the said injuries were caused by sharp weapon. PW-2 Sh. Mohd. Raees, PW-3 Mohd. Haroon, PW-4 Sh. Salimuddin and PW-5 Sh. Nadeem have also specifically deposed that accused Mohd. Akhlaq hit PW-1/complainant Sh. Salim Javed on his head with iron rod due FIR No. 292/2014, PS: Sadar Bazar, State Vs. Mohd. Ashfaq & Ors. Page No. 28 of 48 to which he fell on the ground and thereafter accused Mohd. Afaq assaulted him with knife on his left shoulder while accused Mohd. Ashfaq assaulted him with knife on his right buttock. Thus, PW-1/complainant Sh. Salim Javed, PW-2 Mohd. Raees, PW-3 Mohd. Haroon, PW-4 Sh. Salimuddin and PW-5 Sh. Nadeem have corroborated each other's version which have been further corroborated by the medical evidence in form of MLC, Ex. PW-6/B. Accused persons have failed to create any doubt with respect to the injuries sustained by PW-1/complainant Sh. Salim Javed and the version of abovesaid witnesses.
39. PW-1/complainant Sh. Salim Javed deposed that in the meantime, his uncle PW-4 Sh. Salimuddin came there to rescue him and thereafter all the three accused persons started beating his uncle Salimuddin and he was given knife blow on the right portion of his abdomen by accused Mohd. Afaq. PW-2 Mohd. Raees has corroborated the version of PW-1/complainant Sh. Salim Javed that PW-4 Salimuddin came there to rescue PW-1/complainant Sh. Salim Javed and thereafter all the three accused persons started beating Salimuddin and he was given knife blow on the right portion of his abdomen by accused Mohd. Afaq. PW-3 Mohd. Haroon and PW-5 Sh. Nadeem have also deposed that Salimuddin reached there and he tried to save PW- 1/complainant Sh. Salim Javed for accused persons and at that time accused Mohd. Afaq gave a knife blow in the right side stomach of Salimuddin and blood started oozing from his injury and he became unconsious. PW-4 Sh. Salimuddin deposed that FIR No. 292/2014, PS: Sadar Bazar, State Vs. Mohd. Ashfaq & Ors. Page No. 29 of 48 on 07.07.2014, at about 06:30 pm, he heard some noise and saw that quarrel was going on and accused persons namely Mohd. Akhlaq, Mohd. Afaq and Mohd. Ashfaq were beating his nephew Salim Javed. He also deposed that he tried to save his nephew Salim Javed from accused persons but accused Afaq attacked him with a knife and he inserted the knife into the right side of his stomach and blood started oozing from his stomach, he fell down on the road and he became unconsious. PW-6 Dr. Ritesh Chauhan has proved the MLC of PW-4 Sh. Salimuddin, Ex. PW- 6/A and has deposed that he was brought to the hospital with the alleged history of stab in the right hypochondrium of 2 x 2 cm at right costal region (omentum out). He also deposed that the said injury was caused with sharp weapon. Thus, PW-6 Dr. Ritesh Chauhan has corroborated the version of PW-1/complainant Sh. Salim Javed, PW-2 Mohd. Raees, PW-3 Mohd. Haroon, PW-4 Salimuddin and PW-5 Sh. Nadeem with respect to injury sustained by PW-4 Sh. Salimuddin with sharped edged weapon at specific point of the body. Accused persons have failed to create any doubt with respect to the versions of PW-1/complainant Sh. Salim Javed, PW-2 Mohd. Raees, PW-3 Mohd. Haroon, PW-4 Sh. Salimuddin and PW-5 Sh. Nadeem and the injuries sustained by PW-4 Sh. Salimuddin.
40. Ld. Counsel for accused persons has argued that the injuries sustained by PW-1/complainant Sh. Salim Javed and PW-4 Sh. Salimuddin were self-inflicted injuries. As per the MLC of PW-1/complainant Sh. Salim Javed and PW-4 Sh.
FIR No. 292/2014, PS: Sadar Bazar, State Vs. Mohd. Ashfaq & Ors. Page No. 30 of 48 Salimudding, Ex. PW-6/B & Ex. PW-6/A, they were brought to the casualty of HRH hospital by their relative namely Bobby with the alleged history of physical assault. PW-6 Dr. Ritesh Chauhan has duly proved the injuries sustained by PW-1/complainant Sh. Salim Javed and PW-4 Sh. Salimuddin and has deposed that the said injuries were caused by sharp weapon. As per MLC, Ex. PW-6/B, PW-1/complainant Sh. Salim Javed has sustained stab injury on his left buttock region and on back region of his shoulder as well as frontal region of head while Salimuddin had sustained stab injury in his right hypochondrium. PW-6 Dr. Ritesh Chauhan who is an expert witness has not deposed that the said injuries were the self inflicted injuries. PW-6 Dr. Ritesh Chauhan was not cross- examined on behalf of accused persons despite the fact that their counsel was present before the court on that day as per the order- sheet dated 04.11.2015 which means that accused persons have admitted the injuries sustained by PW-1/complainant Sh. Salim Javed and PW-4 Sh. Salimuddin and nothing has been brought on record by the accused persons to prove that the said injuries were self inflicted in nature.
41. After the arrest of the accused persons namely Mohd. Afaq, Mohd. Ashfaq & Mohd. Akhlaq, IO, PW-17 SI Girish Gothwal, recorded their disclosure statement, Ex. PW-3/H to Ex. PW-3/J and thereafter the accused persons led the police party to the place of occurrence. Thereafter IO/PW-17 SI Girish Gothwal in pursuance of disclosure statements of accused persons got FIR No. 292/2014, PS: Sadar Bazar, State Vs. Mohd. Ashfaq & Ors. Page No. 31 of 48 recovered two knives/churries and one iron rod from inside the heap of bricks. The weapons of offence i.e. knives and iron rod Ex. PW-1/P-2, PW-1/P-3 & PW-1/P-4 were recovered by the IO in the presence of eyewitness PW-3 Mohd. Haroon who has duly deposed about the said recovery and the same were seized by the IO seizure memo Ex. PW-3/O. Since the case properties i.e. weapons of offence i.e. iron rod and knives Ex. PW-1/P-2, PW- 1/P-3 & PW-1/P-4 have been recovered in pursuance of disclosure statements made by the accused persons, same is relevant under Sec. 27 of The Indian Evidence Act, 1872. The fact discovered on the basis of disclosure of statement of accused must be relevant facts. Such information must be given by the person who is accused of an offence and the recovery of article or discovery of fact must be based upon the information given by such accused.
42. Hon'ble Supreme Court of India in Judgment titled as 'Pawan Kumar @Monu Mittal Vs. State of U.P & Anr. cited as (2015) 7 SCC 148' has held that:-
"the facts discovered u/s 27 of Indian Evidence Act embraces the place from which object was produced and knowledge of the accused as to it and if the accused are denying their role without proper explanation as to the knowledge about the incriminating material recovered on the basis of their statements in police custody, would FIR No. 292/2014, PS: Sadar Bazar, State Vs. Mohd. Ashfaq & Ors. Page No. 32 of 48 justify the presumption drawn by the Courts below as to the involvement of the accused in the Crime".
43. In the present case the weapons of offences i.e. iron rod and knives Ex. PW-1/P-2, PW-1/P-3 & PW-1/P-4 have been recovered by IO/PW-17 SI Girish Gothwal in presence of PW-3 Mohd. Haroon and PW-19 Dr. Saurabh Jain has opined that the injuries on the persons of PW-1/complainant Salim Javed and PW-4 Sh. Salimuddin was possible through the abovesaid weapons. Accused persons have failed to create any doubt with respect to the recovery of abovesaid weapons at instance of accused persons. PW-3 Mohd. Haroon and PW-17 IO/SI Girish Gothwal have withstood the test of cross-examination with respect to the recovery of abovesaid weapons and hence this court is of considered opinion that the alleged weapons were used by the accused persons in commission of offence.
44. PW-19 Dr. Saurabh Jain has proved his subsequent opinion regarding the possibility of the injuries on the person of PW-1/complainant Salim Javed and PW-4 Sh. Salimuddin from the recovered weapons of offence. He has specifically deposed that injury no. 3 mentioned in MLC No. 4561/2014 of Salim Javed, Ex. PW-6/B i.e. CLW over frontal region of head of patient could be possible by the said iron rod/sariya. He proved his detailed opinion Ex. PW-19/B in this regard. He has specifically deposed that injury no. 2 mentioned in MLC No. FIR No. 292/2014, PS: Sadar Bazar, State Vs. Mohd. Ashfaq & Ors. Page No. 33 of 48 4561/2014 of Salim Javed, Ex. PW-6/B over the left shoulder could be possible by the knife or similar type of knife of which the diagram has been prepared. He proved his detailed opinion Ex. PW-19/F in this regard. He has specifically deposed that injury no. 1 mentioned in MLC No. 4561/2014 of Salim Javed, Ex. PW-6/B i.e. injuries over the left buttock region could be possible by the knife or similar type of knife of which the diagram has been prepared. He proved his detailed opinion Ex. PW-19/H in this regard. PW-19 Dr. Saurabh Jain has specifically deposed that injuries mentioned in MLC No. 4550/2014 of Salimuddin, Ex. PW-6/A could be possible by the knife or similar type of knife of which the diagram has been prepared. He proved his detailed opinion Ex. PW-19/D in this regard. This witness was not cross-examined on behalf of accused persons despite opportunity given to them which means that they have admitted the expert opinion of PW-19 Dr. Saurabh Jain with respect to the possibility of injuries caused to the persons of PW- 1/complainant Salim Javed and PW-4 Sh. Salimuddin from the weapons Ex. PW-1/P-2, PW-1/P-3 & PW-1/P-4 recovered from their possession. Thus, the expert opinion of PW-19 Dr. Saurabh Jain has further strengthened the case of the prosecution.
45. PW-18 Inspector Sanjay Kumar Singh has proved the FSL Report No. 2014/B-5492/16986 dated 18.12.2014, Ex. PW-18/B which is per-se admissible under Sec. 293 of The Code of Criminal Procedure, 1973. As per the report, blood was detected on Ex. A, B1, B2 & B3 i.e. pant, shirts and baniyan of injured FIR No. 292/2014, PS: Sadar Bazar, State Vs. Mohd. Ashfaq & Ors. Page No. 34 of 48 persons. This has corroborated the case of prosecution that the injured persons had sustained injuries and blood had oozed from their bodies at the time of incident. The complete chain of seizure of the abovesaid clothes by the doctor at HRH hospital till the examination of said clothes at the FSL has been duly proved by the prosecution and accused persons have failed to create any doubt regarding any kind of tempering with the sealed pullandas.
46. Ld. Counsel for accused persons has argued that no permission was taken from the Authorities of Mosque to distribute fruits and sarbat inside the Mosque and hence the prosecution story in this regard is not reliable. Nothing has been brought on record that any such kind of permission was required from the officials of Masjid and accused persons have not examined the Maulvi or other officials of Masjid as defence witness to prove the same. Moreover, PW-1/complainant Salim Javed, PW-2 Mohd. Raees, PW-3 Mohd. Haroon & PW-5 Sh. Nadeem have specifically deposed that PW-1/complainant Salim Javed and PW-3 Mohd. Haroon were preparing sarbat and cutting fruits for distributing the same as it was month of Ramjan. Thus, the defence taken by the accused persons is without any substance.
47. Ld. Counsel for accused persons has argued that there was no motive on the part of accused persons to cause any injury to the PW-1/complainant Salim Javed and PW-4 Sh. Salimuddin and prosecution has failed to prove the motive on the part of accused persons for the commission of alleged offence.
FIR No. 292/2014, PS: Sadar Bazar, State Vs. Mohd. Ashfaq & Ors. Page No. 35 of 48
48. Motive is relevant under Sec. 8 of The Indian Evidence Act. Motive is the moves a man to do a particular work. Generally there can be no action without any motive. Under Section 8 of Evidence Act, several factors including preparation, previous threat, previous altercation, previous litigation between the accused and the victim becomes relevant. The mere existence of motive is by itself is not an incriminating circumstance. Motive cannot be a substitute of proof however it is an corroborating factor in proving the case of the prosecution. The motive for the commission of offence is of vital importance in a criminal trial and in cases based on circumstantial evidence motive itself will be a circumstance which the Court has to consider deeply. The existence of motive which operates in the mind of perpetrator may not be known to others and hence it has to be inferred from the facts and circumstances of this case.
49. Hon'ble Supreme Court of India in judgment titled as Sheo Shankar Singh Vs. State of Jharkhand and Anr cited as (2011) 3 SCC 654 observed as under :-
"15. The legal position regarding proof of motive as an essential requirement for bringing home the guilt of accused is fairly well settle by a long line of decision of this Court. These decisions have made a clear distinction between cases where the prosecution relies upon the circumstantial evidence on one hand and those were relies upon the testimonies of the eye FIR No. 292/2014, PS: Sadar Bazar, State Vs. Mohd. Ashfaq & Ors. Page No. 36 of 48 witnesses on the other. In the former category of cases proof of motive is given the importance it deserves, for proof of motive itself constitutes a link in the chain of circumstances upon which the prosecution may rely. Proof of motive, however, recedes into background in cases where the prosecution relies upon and eye witness account of the occurrence. That is because if the Court upon a proper appraisal of the deposition of the eye witnesses comes to the conclusion that the version given by them is credible, absence of evidence to prove the motive is rendered inconsequential. Conversely, even if the prosecution succeeds in establishing a strong motive for the commission of the offence, but the evidence of the eye witnesses is found unreliable or unworthy of credit, existence of motive does not by itself provide a safe basis for convicting the accused. That does not, however, mean that proof of motive even in a case which rests on an eye witness account does not lend strength to the prosecution case or fortify the Court in its ultimate conclusion proof of motive in such a situation certainly helps the prosecution and supports the eye witnesses."
FIR No. 292/2014, PS: Sadar Bazar, State Vs. Mohd. Ashfaq & Ors. Page No. 37 of 48
50. Hon'ble Supreme Court of India in Judgment tilted as Raghubir Singh Vs. State of Punjab cited as (1996) 9 SCC 233 observed as under:-
"7.... The motives may be minor but nonetheless they did provide occasion for attack on the deceased by the appellants. That apart, even in absence of motive, the guilt of culprit can be established in a given case if the other evidence on record is trustworthy in the absence of proof of motive has never been considered as fatal to the prosecution case where the ocular evidence is found reliable".
51. Hon'ble Supreme Court of India in judgment titled as Chunni Lal Vs. State of Uttar Pradesh cited as (2010) SCC 496 observed as under:-
"12. This in our estimation is the reason and motive for the crime and not the one which was advanced by the Counsel appearing for the appellant, or by the time the incident had taken place, the deceased had legalized his relationship and married the said Chandrakaliya therby giving legal status to PW-1 and PW-2 as his sons. In that situation, there was no possibility at all of the FIR No. 292/2014, PS: Sadar Bazar, State Vs. Mohd. Ashfaq & Ors. Page No. 38 of 48 appellant inheriting the property of his uncle and therefore the plea taken by the appellant regarding motive appears to be without merit. Rather on the other hand, we find clear motive on the part of appellant/accused committing the murder of his uncle".
52. In the persent case, PW-1/complainant Salim Javed, PW-2 Mohd. Raees, PW-3 Mohd. Haroon & PW-5 Sh. Nadeem have specifically deposed that the accused Mohd. Afaq was using filthy language inside the Mosque and he was removed from the Mosque by PW-3 Mohd. Haroon and at that time he had threatened PW-3 Mohd. Haroon that he will teach him a lesson. Moreover, accused persons have not disputed the presence of accused Mohd. Afaq at the Mosque at the time of commission of offence and rather in the cross-examination suggestion has been given to PW-1 Salim Javed that they tried to accused Mohd. Afaq out of the most forcibly. In the cross-examination, no suggestion has been given by the accused persons to PW-1/complainant Salim Javed, PW-2 Mohd. Raees, PW-3 Mohd. Haroon and PW-5 Sh. Nadeem that no such threat was given by accused Mohd. Afaq to PW-3 Mohd. Haroon. Thus, the prosecution has duly proved that at the time of leaving the Mosque, accused Mohd. Afaq had threatened PW-3 Mohd. Haroon and hence the said threat is sufficient to prove the motive for the commission of offence by the accused persons.
FIR No. 292/2014, PS: Sadar Bazar, State Vs. Mohd. Ashfaq & Ors. Page No. 39 of 48
53. PW-1/complainant Sh. Salim Javed and PW-4 Sh. Salimuddin are the injured in the present case. They have specifically deposed against the accused persons with respect to the injuries caused on their person. There is complete consistency in their statement given to the police and their testimony recorded in the Court. The testimony of the injured witness is to be appreciated as per the law laid down by the Hon'ble Supreme Court of India in this regard.
54. Hon'ble Supreme Court of India in judgment titled as Jarnail Singh & Ors. Vs. State of Punjab cited as (2009) 9 SCC 719 while dealing with the evidentory value of injured witness has observed as under:-
"28. Darshan Singh (PW-4) was an injured witness. He had been examined by the Doctor. His testimony could not be brushed aside lightly. He had given full details of the incident as he was present at the time when the assailants reached the tubewell. In Shivalingappa Kallayanappa Vs. State of Karnataka, this Court has held that the deposition of injured witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies, for the reason that his FIR No. 292/2014, PS: Sadar Bazar, State Vs. Mohd. Ashfaq & Ors. Page No. 40 of 48 presence on the scene stands established in case it is proved that he suffered the injury during the said incident.
55 In State of U.P Vs. Kishan Chand, a similar view has been reiterated observing that the testimony of stamped witness has its own relevance and efficacy. The fact that the witness sustained injuries at the time and place of occurrence, lends supports to its testimony that he was present during the occurrence. In case the injured witness is subjected to lengthy cross-examination and nothing can be elicited to discard his testimony, it should be relied upon (vide Krishan Vs. State of Haryana)."
56. Nothing has been brought on record by the accused persons to put any dent on the versions of PW-1 Complainant/injured Sh. Salim Javed and PW-4 Sh. Salimuddin. The nature of injury on the person PW-4 Sh. Salimuddin has been opined to be dangerous in nature by doctor in his report no. 6537 dated 07.08.2014 as per the said report, Salimuddin was admitted to the hospital on 07.07.2014 and was discharged on 28.07.2014 i.e. after a period of 21 days. The said injury had endangered the life of PW-4 Sh. Salimuddin and in these circumstances, it cannot be said that PW-1/complainant Sh. Salim Javed and PW-4 Sh. Salimuddin had named the wrong persons other than the accused persons who caused said life endangering injury on the person of PW-4 Sh. Salimuddin and FIR No. 292/2014, PS: Sadar Bazar, State Vs. Mohd. Ashfaq & Ors. Page No. 41 of 48 other injuries on the person of PW-1/complainant Sh. Salim Javed. Applying the law laid down by Hon'ble Supreme Cour of India in Jarnail Singh & Ors. (Supra) & Kishan Chand (Supra), this Court is of considered opinion that the testimonies of PW-1 complainant/injured Sh. Salim Javed and PW-4/inuured Sh. Salimuddin cannot be discarded without any ground and hence the testimonies of PW-1 complainant/injured Sh. Salim Javed and PW-4/inuured Sh. Salimuddin being injured are reliable.
57. Accused persons have taken the defence that they have been falsely implicated in the present case by the complainant to take revenge from them and to avoid criminal proceedings against them in case FIR No. 293/2014, PS Sadar Bazar. Accused persons have also examined DW-1 Sh. Mohd. Arif and DW-2 Sh. Mohd. Amir. DW-1 Sh. Mohd. Arif deposed that on 07.07.2014 he went to Mosque Patnawali Gali, Bara Hindu Rao for offering Nawaz and he saw accused Afaq in injured condition and one of his brother have also injured having injury on his head and on his request, he had given his handkerchief to accused Mohd. Afaq. No such bloodstained handkerchief has been produced by the accused persons during the trial nor it has been brought on record accused Mohd. Afaq reached the hospital by tying the said handkerchief on his hand. DW-1 Sh. Mohd. Arif in his cross- examination deposed that he did not know how accused Mohd. Afaq and his brother sustained injury which means that he was not the eyewitness of the alleged incident. Thus, this witness has FIR No. 292/2014, PS: Sadar Bazar, State Vs. Mohd. Ashfaq & Ors. Page No. 42 of 48 failed to put any dent on the prosecution story. DW-2 Sh. Mohd. Amir deposed that on 07.07.2014, he went to Mosque Patnawali Gali and saw that some people were fighting. He further deposed that some people were having knife and iron rod and one inflicted injury with knife on the hand of accused Afaq and one of them had hit accused Mohd. Akhlaq with iron rod on his head. He has not stated the name of those persons. Thus the testimony of DW-2 Sh. Mohd. Amir is also vague in nature and he has failed to create any doubt on the prosecution story.
58. Ld. Counsel for accused persons have argued that no independent eyewitness was joined in the investigation. However, Ld. Addl. PP for the State argued that PW-5 Sh. Nadeem is an independent witness. PW-5 Sh. Nadeem has corroborated the versions of injured persons. Nothing has been brought on record that PW-5 Nadeem was either relative of complainant/injured persons nor it has been proved that he was interested witness. Thus, this court is of considered opinion that IO had joined PW-5 Sh. Nadeem as an independent eyewitness in the present case who has corroborated the prosecution case.
59. To prove the prosecution case, the testimony of the prosecution witnesses must be reliable. It is not the quantity but the quality of the testimony of the witness that helps a court in arriving at a conclusion in any case. The test in this regard is that the evidence adduced by the parties must have a ring of truth. In a criminal trial, the prosecution has to prove the case beyond reasonable doubt and it is possible only when the testimony of FIR No. 292/2014, PS: Sadar Bazar, State Vs. Mohd. Ashfaq & Ors. Page No. 43 of 48 prosecution witnesses is cogent, trustworthy and credible. To secure a conviction of accused, the testimony of the prosecution witness must be of sterling quality.
60. In case titled as Rai Sandeep @ Deepu Vs. State (NCT of Delhi) cited as (2012) 8 SCC 21, it is held that :-
"22. In our considered opinion, the "sterling witness" should be of a very high quality and caliber whose version should, therefore, be unassailable. The court considering the version of such witness should be in a position to accept it for its face value without any hesitation. To test the quality of such a witness, the status of the witness would be immaterial and what would be relevant is the truthfulness of the statement made by such a witness. What would be more relevant would be the consistency of the statement right from the starting point till the end, namely, at the time when the witness makes the initial statement and ultimately before the court. It should be natural and consistent with the case of the prosecution qua the accused. There should not be any prevarication in the version of such a witness. The witness should be in a position to withstand the Cross examination FIR No. 292/2014, PS: Sadar Bazar, State Vs. Mohd. Ashfaq & Ors. Page No. 44 of 48 of any length and howsoever strenuous it may be and under no circumstances should given room for any doubt as to the factum of the occurrence, the persons involved, as well as the sequence of it. Such a version should have corelation with each and every one of other supporting material such as the recoveries made, the weapons used, the manner of offence committed, the scientific evidence and the expert opinion. The said version should consistently match with the version of very other witness. It can even be stated that it should be akin to the test applied in the case of circumstantial evidence where there should not be any missing link in the chain of circumstances to hold the accused guilty of the offence alleged against him. Only, if the version of such a witness qualifies the above test as well as all other such similar tests to be applied, can it be held that such a witness can be called as a "sterling witness' whose version can be accepted by the court without any corroboration and based on which the guilty can be punished. To be more precise, the version of the said witness on the core spectrum of the crime should remain intact FIR No. 292/2014, PS: Sadar Bazar, State Vs. Mohd. Ashfaq & Ors. Page No. 45 of 48 while all other attendant materials, namely, oral, documentary and material objects should match the said version in material particulars in order to enable the court trying the offence to rely on the core version to sieve the other supporting materials for holding the offender guilty of the charge alleged."
61. In case of Ramdas Vs. State of Maharashtra cited as (2007) SCC 170, it is held that :
"23. It is no doubt true that the conviction in a case of rape can be based solely on the testimony of the prosecutrix, but that can be done in a case where the court is convinced about the truthfulness of the prosecutrix and there exist no circumstances with cast of shadow of doubt over her veracity. It the evidence of the prosecutrix is of such quality that may be sufficient to sustain an order of conviction solely on the basis of her testimony. In the instant case we do not fine her evidence to be of such quality."
62. Thus, from the above said judgments, it is clear that the version of the witness should be natural one and it must corroborate the prosecution case. Such version must match with FIR No. 292/2014, PS: Sadar Bazar, State Vs. Mohd. Ashfaq & Ors. Page No. 46 of 48 the testimony of other prosecution witnesses. It should be of such a quality that there should not be any shadow of doubt upon it.
63. Applying the law laid down by the Hon'ble Apex Court in Rai Sandeep (supra) and Ramdas (Supra), this court is of the considered opinion that complainant/injured PW-1/complainant Sh. Salim Javed, PW-2 Sh. Mohd. Raees, PW-3 Sh. Mohd. Haroon, PW-4 Sh. Salimuddin & PW-5 Sh. Nadeem are witnesses of sterling quality as their versions are natural and they have also withstood the test of cross examination. This court is of the considered opinion that the testimonies of complainant/injured PW-1/complainant Sh. Salim Javed, PW-2 Sh. Mohd. Raees, PW-3 Sh. Mohd. Haroon, PW-4 Sh. Salimuddin & PW-5 Sh. Nadeem are clear, cogent, credible, trustworthy and consistent and have been corroborated by the other prosecution witnesses, medical, scientific evidence on record and the circumstances.
64. Thus, through the testimonies of PW-1/complainant Salim Javed, PW-2 Mohd. Raees, PW-3 Mohd. Haroon & PW-5 Sh. Nadeem and through the medical evidence on record, prosecution has successfully proved that the accused persons attacked the injured persons with intention to kill them and they had shared common intention at the time of commission of offence.
65. The ingredients of offence punishable under section 307/34 IPC for the commission of offence to commit an attempt to murder have been duly proved beyond reasonable doubt by the FIR No. 292/2014, PS: Sadar Bazar, State Vs. Mohd. Ashfaq & Ors. Page No. 47 of 48 prosecution against the accused persons namely Mohd. Afaq, Mohd. Akhlaq & Mohd. Ashfaq. The prosecution has successfully proved that all the three accused persons shared common intention and they attempted to kill PW-1 Complainant/injured Sh. Salim Javed and PW-4 Sh. Salimuddin by causing life endangering injuries on their person.
66. In the light of aforesaid discussion, this court is of the considered opinion that prosecution has proved its case beyond reasonable doubt for the offence punishable under section 307/34 IPC against accused persons namely Mohd. Afaq, Mohd. Akhlaq & Mohd. Ashfaq.
67. Accordingly, accused persons namely Mohd. Afaq, Mohd. Akhlaq & Mohd. Ashfaq are hereby convicted for the offence punishable under section 307/34 IPC.
Digitally signed VIRENDER by VIRENDER Announced in the open court KUMAR KUMAR KHARTA KHARTA Date: 2024.10.26 on 26th day of October, 2024 15:07:26 +0530 (Virender Kumar Kharta) ASJ/FTC-02(CENTRAL) TIS HAZARI COURTS:DELHI:26.10.2024 FIR No. 292/2014, PS: Sadar Bazar, State Vs. Mohd. Ashfaq & Ors. Page No. 48 of 48