Delhi District Court
State vs . on 18 October, 2018
IN THE COURT OF SHRI M.R. SETHI: ASJ-03: NORTH-WEST,
ROHINI COURTS, DELHI.
CNR No. DLNW01-008912-2016
SC No. 53689/2016
FIR No. 267/15
U/s 323/308/341/34 IPC
PS Kanjhawala
State
Vs.
1 Nawab,
S/o Shri Meer Hasan,
R/o D-9, Rajdhani Park,
Mundka, Delhi
2 Salim
S/o Shri Md. Israil,
R/o C-67, Shivaji Enclave,
Raja Garden,
Delhi
Date of institution of the case : 02.12.2016
Date when final arguments concluded : 18.10.2018
Date of pronouncement of judgment : 18.10.2018
JUDGMENT
1 Succinctly stated, allegations against the accused persons were to the effect that on 3.4.15 at about 12.45 PM on road in front of G-104, Mir Vihar, Delhi both accused persons in State vs. Nawab etc..
(FIR no. 267/15 PS Kanjhawala) 1 of 7 furtherance of their common intention alongwith one Wasim (since PO) and some other unknown persons had attacked the complainant Khurshid and Yameen and had caused injuries to them. It was further alleged that the culprits had also wrongfully confined the complainant Khurshid and others and had stopped them from proceeding in direction in which they had right to proceed.
2 On basis of aforesaid allegations, charges were framed against both the accused persons for having committed offences punishable U/s 323/34 IPC, 308/34 IPC & 341/34 IPC. As during course of proceedings before this court (before framing of charge) accused Wasim had absented, after process U/s 82 & 83 Cr. P.C had been conducted, he was declared PO vide order dated 9.4.18 passed by this court.
3 During course of trial prosecution examined PW-1 HC Atma Ram who proved on record copy of FIR Ex. PW-1/1 and his endorsement on rukka Ex. PW-1/2. Certificate U/s 65 B Evidence Act in respect of the FIR was proved as Ex. PW-1/3. 4 Injured Yameen was examined as PW-2. He claimed that he did not remember the date or month but it was in the year 2015 when he received telephonic call from Khurshid to the effect that he was having some quarrel with Salim in respect of his plot in Meer Vihar. Witness claimed that after reaching the spot where hot words were being exchanged, he tried to intervene in the quarrel. Witness further submitted that 4 - 5 people including Khurshid had dandas in their hands and during course of quarrel he was hit on his head with a danda. He claimed that as crowd State vs. Nawab etc..
(FIR no. 267/15 PS Kanjhawala) 2 of 7 was present there, he cannot say who hit him with the danda on his head. Witness further claimed that he was bleeding profusely and fell down and that police had already reached the spot when he regained consciousness. Witness identified the accused Salim and Nawab and claimed that Salim too was present at the spot at the time of incident.
After seeking permission from court, witness was cross examined by ld. PP for State and during course of such cross examination he claimed that he could not say if the incident had taken place on 3.4.15. Witness admitted having mentioned in his statement to police that Salim had hit him on head with a danda and Nawab had hit him on his hand and waist. However, witness volunteered that it was subsequently that public had told him about these facts and he narrated the same in his statement to police. He denied the suggestion that the volunteered portion was incorrect or that he had seen Salim and Nawab hitting him. He claimed that he could not say if Wasim also had hit him with legs and fists. He denied having so mentioned in his statement to police. Attention of witness was drawn to statement Mark P-2/A portion X1 to X2 where it was so recorded. He claimed that he could not say if his statement was recorded by police on 23.7.16. He denied the suggestion that he was deposing falsely having been won over by the accused persons.
5 PW-3 ASI Sunil claimed having removed the two injured to SGM Hospital in his PCR van on 3.4.15.
6 PW-4 HC Anand Kumar claimed having reached the spot on coming to know about the incident and thereafter to SGM State vs. Nawab etc..
(FIR no. 267/15 PS Kanjhawala) 3 of 7 Hospital. He claimed having recorded statement of Khurshid there. Statement was proved as Ex. PW-4/1. He proved his endorsement thereupon as Ex. PW-4/2. He also claimed having prepared site plan Ex. PW-4/3. Accused Salim was claimed to have been apprehended on 3.4.15 at instance of Khurshid and formally arrested vide memo Ex. PW-4/4. Nawab was claimed to have been arrested at instance of Khurshid on 19.4.15 vide memo Ex. PW-4/5. Witness claimed that as offence U/s 308 IPC was subsequently added in the FIR, he deposited the file with MHC ( R).
During course of cross examination by ld. Counsel for accused witness denied the suggestion that Khurshid had not made statement Ex. PW-4/1 to him or that it was created by him alone. He further denied the suggestion that Khurshid never pointed out the spot of incident or that the site plan Ex.PW-4/3 was prepared by him of his own. He claimed that he did not remember if arrest memos of Salim and Nawab had been got signed from Khurshid. He admitted that the memos Ex. PW-4/4 & 5 did not bear signature of Khurshid. He denied the suggestion that accused were never apprehended at instance of Khurshid or had been falsely implicated in this case. He denied the suggestion that he was deposing falsely.
7 PW-5 ASI Anil claimed that on 20.6.16 investigation of the matter was transferred to him as section 308 IPC was added in the FIR. He claimed that on receipt of file, he went through the same and after issuing notices to accused persons, had formally arrested them in respect of offence punishable U/s 308 IPC.
State vs. Nawab etc..
(FIR no. 267/15 PS Kanjhawala) 4 of 7 Wasim was claimed to have been arrested from Rohini Jail vide arrest memo Ex. PW-5/1 and his disclosure statement Ex. PW-5/2 recorded. Nawab was claimed to have been arrested on 12.8.16 vide arrest memo Ex. PW-5/3. The arrest document of Salim was not traceable on record and only his bail bond furnished before the IO was on record. He had already obtained anticipatory bail. Witness further claimed that during course of investigation he recorded statements of witnesses and after completing investigation filed charge sheet in court. He further claimed that as per information with him, witness Khurshid was not traceable. He informed that Khurshid was an accused in case FIR No. 34/16 PS Kanjhawla and had already been declared PO in that case.
During course of cross examination by ld. Counsel for accused witness denied the suggestion that Wasim had not made any disclosure statement or that the disclosure statements were fabricated document.
8 Summons had been repeatedly sent to Khurshid but were always received back unserved with report that he was not traceable. It had been reported by his brother Bilal that Khurshid had already been disowned by the family. Copy of public notice in that regard had also been produced by mother and brother of Khurshid in pursuance to yet another summon issued to him. Even the investigating officer of the case i.e. PW-5 ASI Anil during course of his testimony had informed the court that Khurshid was not traceable and had already been declared proclaimed offender in case FIR No. 34/16, PS Kanjhawala.
State vs. Nawab etc..
(FIR no. 267/15 PS Kanjhawala) 5 of 7 9 On asking of this court, it was informed by ld. PP that
besides Yameen and Khurshid, there was no eye witness to be examined in this case as none had been cited. Yameen had already been examined as per report Khurshid was not traceable. In that view of matter, and as the remaining prosecution witnesses had nothing to say about the actual incident, this court was of considered opinion that no useful purpose was likely to be served by examining the remaining witnesses and that recording of their testimonies would have been exercise in futility. Prosecution evidence was accordingly closed by the court. 10 Statements of accused persons were recorded U/s 313 Cr. P.C wherein they denied allegations against them. 11 During course of his submission it was submitted by ld. PP that PW-2 Yameen had admitted presence of accused persons at the spot of incident and that he had not fully supported case of prosecution having been won over by accused persons. ld. Counsel for accused on the other hand submitted that PW-2 had nowhere stated that any of the accused had caused any injury to him or to Khurshid. It was prayed that accused persons be acquitted.
12 Perusal of record reveals that entire case of prosecution rested on testimonies of Khurshid and Yameen. As already mentioned herein above, Khurshid was not traceable and hence could not be produced by the prosecution despite repeated attempts. His testimony could not be recorded in court. PW-2 Yameen during course of his testimony has only stated about presence of the two accused at the spot of incident but has State vs. Nawab etc..
(FIR no. 267/15 PS Kanjhawala) 6 of 7 nowhere claimed that any of them caused any injury to him or Khurshid. In this regard he had specifically mentioned that he could not say who had hit him with the danda. In that view of matter, evidence on record is insufficient to foist an order of conviction against the accused persons. Moreover, despite the alleged incident having taken place on 3.4.15, statement of Yameen was recorded U/s 161 Cr.P.C only on 23.7.16. No explanation has come on record for delay in this regard. 13 Moreover, as per PW-4 HC Anand, both the accused had been apprehended at instance of the complainant Khurshid. Significantly Khurshid was not signatory to arrest documents of any of the two accused persons. This by itself puts in doubt genuineness of claim of the investigating agency qua arrest of accused persons at instance of Khurshid.
14 Keeping in view all the abovesaid facts and circumstances of the case and primarily as PW-2 has not stated anything incriminating against the accused persons and as the complainant Khurshid could not be examined being untraceable, there is no legally admissible evidence on record against any of the two accused persons.
15 Consequently, both the accused are accordingly ordered to be acquitted in this case.
Announced in open court (M.R. SETHI)
on 18.10.2018 ADDL.SESSIONS JUDGE - 03,
NORTH WEST, ROHINI COURTS,
NEW DELHI.
State vs. Nawab etc..
(FIR no. 267/15 PS Kanjhawala) 7 of 7