Delhi District Court
State vs . Mohd. Salman on 16 May, 2019
IN THE COURT OF Dr. KAMINI LAU: ADDITIONAL SESSIONS
JUDGEII (CENTRAL): TIS HAZARI COURTS: DELHI
Sessions Case No. 12/2017
Registration No. 308789/2016
State Vs. Mohd. Salman
S/o Sh. Mohd. Sabbir
R/o H. No. W155/18, Near Shiv
Mandir Rakhi Market Zakhira,
Delhi.
(ACQUITTED)
FIR No.: 535/2016
Police Station: Sarai Rohilla
Under Sections: 393/394/397/307/34 Indian Penal Code
Date of Committal: 10.01.2017
Judgment Reserved on: 15.05.2019
Judgment Pronounced on: 16.05.2019
JUDGMENT:
(1) As per the allegations on 07.08.2016 at about 9:30 PM near Gujjar Wali Gali, Old Rohtak Road, Daya Basti, Delhi the accused Mohd. Salman along with Mohd. Nadeem (since CCL) and two other associates (since absconding) in furtherance of their common intention attempted to commit robbery upon Mohd. Saddam, Mohd. Rafiq and Mohd. Meraj and voluntarily caused hurt to Mohd. Meraj while attempting to commit robbery. Further, as per the allegations the accused Mohd. Salman along with Mohd. Nadeem (since CCL) and two other associates (since State Vs. Mohd. Salman, FIR No. 535/2016, PS Sarai Rohilla, Judgment dated 16.05.2019 Page No. 1 of 14 absconding) in furtherance of their common intention, attempted to commit murder of Mohd. Meraj and in that attempt Mohd. Nadeem (since CCL) stabbed Mohd. Meraj with a knife with such intention or knowledge and under such circumstances that if they all by that act caused death of Mohd. Meraj, they would be guilty of murder.
CASE OF THE PROSECUTION/ BRIEF FACTS:
(2) The case of the prosecution is that on 07.08.2016 DD No. 28PP was lodged at Police Police Inderlok, Police Station Sarai Rohilla pursuant to which SI Vishwanath reached Hindu Rao Hospital where ASI Vishram Meena and Ct. Virender met him. The IO obtained the MLC of injured Miraz S/o Ban Ali who was under treatment in operation theater. He also met Mohd. Saddam who had brought the injured Miraz to the hospital and claimed himself to be the eye witness. The Investigating Officer then recorded the statement of Mohd. Saddam wherein he informed the police that on 07.08.2016 at about 9.30 PM, he alongwith Miraz and Rafiq were returning to Shahzada Bagh from Azad Market and on the way at Daya Basti, one boy came to them and tried to snatch his mobile phone and later on three more boys had joined him. Out of the said four boys, one boy took out a knife and gave a blow in the stomach of Miraj after which all the four boys fled away from the spot but the assailants could not snatch anything from them. Thereafter he alongwith Rafiq took the injured Miraj to Hindu Rao Hospital. On the basis of the statement of Mohd. Saddam the present FIR was registered.
State Vs. Mohd. Salman, FIR No. 535/2016, PS Sarai Rohilla, Judgment dated 16.05.2019 Page No. 2 of 14 (3) During investigations on 20.08.2016, the Investigating Officer received an information from Police Station Anand Parbat that the assailants involved in present case i.e. accused Mohd. Salman @ Bholu, Alok @ Pandit and Mohd. Nadeem were arrested in case FIR No.381/2016 under Section 396 IPC, Police Station Anand Parbat.
Pursuant to the same, the accused Mohd. Salman @ Bholu, Alok @ Pandit and Mohd. Nadeem were arrested in the present case and their Test Identification Parade was conducted. During the TIP proceedings, the complainant/ victim could not identify the accused Alok @ Pandit and hence he was got released from this case. However, the accused Mohd. Salman and Alok @ Pandit have refused to participate in the Test Identification Parade. Efforts were made to trace the fourth assailant namely Kalu and also weapon of offence but neither the fourth assailant nor the weapon of the same could be traced. After completion of investigations, charge sheet was filed before the Court. The accused Alok @ Pandit was declared a minor (CCL) by the Ld. MM and hence his case was assigned to the Juvenile Justice Board1, Delhi. Now only the accused Mohd. Salman is facing trial.
CHARGES:
(4) Pursuant to the order on charge dated 20.12.2017 passed by the Ld. Predecessor Court, charges under Section 393/394/34 and Section 307/34 Indian Penal Code were settled against the accused Mohd.
Salman to which he pleaded not guilty and claimed trial.
State Vs. Mohd. Salman, FIR No. 535/2016, PS Sarai Rohilla, Judgment dated 16.05.2019 Page No. 3 of 14 (5) Before coming to the testimonies of individual witnesses, the details of the witnesses examined by the prosecution and the documents proved by them are hereby put in a tabulated form as under:
List of witnesses:
S. PW No. Name of Description
No. Witness
1. PW1 Mohd. Rafiq Public Witness Eye witness to the incident
2. PW2 Mohd. Miraz Public witness - Injured in the incident
3. PW3 Mohd. Saddam Public Witness - Eye witness to the incident
4. PW4 Inspector Official Witness - Investigating Officer
Vishwanath
List of Documents/ Exhibits:
S. Exhibit No. Document Proved by
No.
1. Ex.PW3/A Statement of Mohd. Saddam under Section Mohd. Saddam
161 Cr.P.C. (PW3)
2. Ex.PW3/B Site plan Mohd. Saddam
(PW3)
3. Ex.PW3/C Seizure Memo Mohd. Saddam
(PW3)
4. Ex.P1 Two blood stained paper plates Mohd. Saddam
(PW3)
5. Ex.C8 MLC of injured Miraz S/o Ban Ali Inspector
Vishwanath (PW4)
6. Ex.C1 Endorsement of Miraz Inspector
Vishwanath (PW4)
7. Ex.C2 Original rukka and copy of FIR Inspector
Vishwanath (PW4)
8. Ex.C12 Documents pertaining to case FIR No. Inspector
(Colly, 19 381/2016, P.S. Anand Parbat Vishwanath (PW3)
sheets)
State Vs. Mohd. Salman, FIR No. 535/2016, PS Sarai Rohilla, Judgment dated 16.05.2019 Page No. 4 of 14
S. Exhibit No. Document Proved by
No.
9. Ex.C4 Arrest Memo Inspector
Vishwanath (PW4)
10. Ex.C5 Disclosure Statement Inspector
Vishwanath (PW4)
11. Ex.C6 Pointing Out Memo Inspector
Vishwanath (PW4)
12. Ex.C7 Copy of the order pertaining to TIP Inspector
proceeding. Vishwanath (PW4)
13. Ex.C8 MLC of the injured Inspector
Vishwanath (PW4)
Admitted Documents under Section 294 Cr.P.C.:
(6) During the course of trial, the accused Mohd. Salman has admitted the following documents under Section 294 Cr.P.C.:
Sr. Details of the documents Exhibit No. No. 1. Rukka dated 08.082016 Ex.C1 2. FIR dated 08.08.2016 Ex.C2 3. Certificate under Section 65B of the Evidence Act Ex.C3 4. Arrest memo dated 27.09.2016 Ex.C4
5. Disclosure Statement dated 27.09.2016 (but denied the Ex.C5 contents)
6. Pointing Out memo dated 27.09.2016 (but denied the Ex.C6 contents)
7. Site Plan dated 08.08.2016 Ex.PW3/B
8. TIP proceedings dated 27.09.2016 Ex.C7 State Vs. Mohd. Salman, FIR No. 535/2016, PS Sarai Rohilla, Judgment dated 16.05.2019 Page No. 5 of 14
9. MLC dated 07.08.2016 along with opinion Ex.C8
10. XRay plates Ex.C9
11. Seizure Memo dated 08.08.2016 Ex.PW3/C
12. DD No. 28 dated 07.08.2016 Ex.C10
13. Crime Team Report Ex.C11
14. Documents pertaining to FIR No. 381/2016, PS Anand Ex.C12 (colly.
Parbat 9 sheets) (7) In view of the above, the witnesses Mohd. Sajid; DO/ASI Jai
Kumar, Ct. Virender Kumar, Ct. Chander Pal, ASI Vishram Meea, SI Ved Prakash; Ct. Irshad Ahmed, Dr. Ambika Sharma, Dr. Shruti Pandey, Dr. Devendra, Inspector Sehdev Kumar, SI Jagroop Singh, HC Shailesh Sharma, Ct. Anil Kumar; Ms. Ambika Singh (Ld. MM) and Ahlmad of the court of PS Anand Parbat were dropped.
EVIDENCE:
(8) In order to prove its case, the prosecution has examined Four Witnesses, which are put in a tabulated form as under:
S. Witness Deposition
No.
Public Witnesses
1. Mohd. Rafiq PW1 Mohd. Rafiq is the eye witness of the incident who in his
(PW1) examinationinchief has deposed on the following aspects :
1. That in the year 2016, he came to Delhi and started working in the factory of Ayub Bhai situated at Shahzada Bagh, Inderlok Delhi and at that time, Mohd.
Saddam and Meraz also used to work in the said factory and also reside in the same factory itself.
State Vs. Mohd. Salman, FIR No. 535/2016, PS Sarai Rohilla, Judgment dated 16.05.2019 Page No. 6 of 14
2. That on 07.08.2016, as the factory was closed being Sunday, he alongwith Mohd. Saddam and Meraz went to meet Akhlaq, brother of Meraz at Azad Market where they took meal in the house of Akhlaq.
3. That thereafter, they came back in erickshaw and got down at Gujjar Wali Gali,Daya Basti at about 9.30 p.m.
4. That thereafter they started walking towards their factory, in the meanwhile, one person came to them and asked Saddam to hand over the articles in their possession and when they refused, three more persons came there and started manhandling them.
5. That one of them stabbed Meraz in his abdomen resultantly Meraz started bleeding and all four of them ran away from there.
6. That thereafter they brought Meraz to their factory from where Sajid took him to Hindu Rao Hospital.
Since the witness was unable to identify the accused in the Court, he was crossexamined by the Ld. Addl. PP for the State on the aspect of identity of the accused. The accused Mohd. Salman was specifically put to the witness in the court and he was suggested that the accused Mohd. Salman was one of the assailants who had also stabbed Meraz with knife at the time of incident. The witness has deposed that he is unable to identify the accused due to lapse of time. He has denied the suggestion that he is intentionally not identifying the accused as he has been won over by his family members.
This witness has not been cross examined by the accused despite grant of opportunity.
2. Mohd. Miraz PW2 Mohd. Miraz is the injured in the incident who in his (PW2) examinationinchief has deposed on the following aspects:
1. That in the year 2016, he used to work in plastic factory of Ayub at Jalandhar Baadi, Inderlok, Delhi and used to stay there alongwith Mohd. Saddam and Mohd. Rafiq.
2. That in the year 2016, date he does not remember, however it was Sunday, he alongwith Saddam and Rafiq went to Azad Market to meet Akhlaq in the evening.
3. That after taking the dinner, he alongwith Mohd. Saddam and Mohd. Rafiq were coming back to their factory in erickshaw and got down at Daya Basti from where they proceeded to their factory on foot.
State Vs. Mohd. Salman, FIR No. 535/2016, PS Sarai Rohilla, Judgment dated 16.05.2019 Page No. 7 of 14
4. That at about 9:30 PM one person came to them and asked to hand over their belongings.
5. That in the meanwhile, his two more associates also came there and when they refused to give their belongings, one of them stabbed his abdomen with a knife.
6. That blood started coming out from his injuries and all assailants fled away from the spot.
7. That Saddam and Rafiq took him to the factory where Sajjid took him to the Hindu Rao Hospital where he was admitted and treated.
8. That he remained admitted at the hospital for about one week.
9. That he handed over his blood stained clothes to the police.
10. That none of the assailant is present in the court.
Since the witness was unable to identify the accused in the Court, he was crossexamined by the Ld. Addl. PP for the State on the aspect of identity of the accused. The accused Mohd. Salman was specifically put to the witness in the court and he was suggested that the accused Mohd. Salman was one of the assailants who had stabbed him with knife at the time of incident. The witness has deposed that he is unable to identify the accused as it was dark at the time of incident. He has denied the suggestion that he is intentionally not identifying the accused as he has been won over by his family members.
This witness has not been cross examined by the accused persons despite grant of opportunity.
3. Mohd. Saddam PW3 Mohd. Saddam is the eye witness who has in his (PW3) examinationinchief deposed on the following aspects :
1. That he does not remember the exact date and month but the incident took place in 2016 in summer season on the day of Sunday.
2. That at that time, he was working in a factory of Ayub Bhai in Shahjada Bagh, Inderlok.
3. That on that day at about 9.30 p.m., he alongwith Miraz and Rafiq were returning to Shahjada Bagh from Azad Market.
4. That on the way at Daya Basti, four persons had come, first of all, one person out of four had come to them and he tried to snatch his mobile phone and later on rest State Vs. Mohd. Salman, FIR No. 535/2016, PS Sarai Rohilla, Judgment dated 16.05.2019 Page No. 8 of 14 three persons had joined him.
5. That one boy out of three persons had inflected stab injury with the knife to Miraj upper abdomen (Paet) thereafter, all the four boys fled away from the spot.
6. That thereafter, he alongwith Rafiq had taken injured Miraj on the hospital situated at Malka Ganj.
7. That police had come at the hospital and recorded his statement Ex.PW3/A.
8. That he pointed out the spot of occurrence to the police and on his instance.
9. That police had lifted blood from the spot by lifting two paper plates (pattal) which are Ex.P1 (colly.) and converted the same into pullinda and duly sealed the same with the seal of VN and prepared the seizure memo which is Ex.PW3/C.
10. That as the incident took place all of sudden and it was dark therefore, he cannot identify the accused.
Since the witness was unable to identify the accused in the Court, he was crossexamined by the Ld. Addl. PP for the State on the aspect of identity of the accused. The accused Mohd. Salman was specifically put to the witness (through Video Conferencing) and he was suggested that the accused Mohd. Salman was one of the assailants who had also stabbed Meraz. The witness has deposed that he is unable to identify the accused as ot was dark at that time. He has denied the suggestion that he is intentionally not identifying the accused as he has been won over by his family members.
This witness has not been cross examined by the accused despite grant of opportunity.
4. Inspector PW4 Inspector Vishwanath who is the Investigating Officer of Vishwanath the present case has in his examinationinchief deposed on the (PW4) following aspects:
1. That on 07.08.2016, he was posted at PP Inderlok, P.S. Sarai Rohilla.
2. That on that day, after receiving DD No. 28 PP dated 07.08.2016, he reached at Hindu Rao Hospital where ASI Vishram Meena alongwith Ct. Virender met.
3. That ASI Vishram Meena had handed over him copy of DD No. 28 PP and MLC of injured Miraz S/o Ban Ali.
4. That Dr. had observed on MLC nature of injury under observation Sharp vide Ex.C8.
State Vs. Mohd. Salman, FIR No. 535/2016, PS Sarai Rohilla, Judgment dated 16.05.2019 Page No. 9 of 14
5. That injured Miraz was under treatment in operation theater.
6. That he met Mohd. Saddam who had brought the injured Miraz to the hospital and claimed himself to be the eye witness.
7. That he recorded the statement of Mohd. Saddam vide Ex.PW3/A, made his endorsement at Ex.C1 and converted the same into a rukka which he handed over to Ct. Virender and directed him to take the same to the police station for recording the FIR.
8. That in the meanwhile, he alongwith Mohd. Saddam went to the site of the incident where Saddam pointed out the site of the incident.
9. That in the meanwhile, Ct. Virender came to the site and handed over the original rukka and copy of the FIR Ex.C2 to him.
10. That he prepared the site plan Ex.PW3/B.
11. That he lifted the blood stained two disposable plates from the site and seized the same vide memo Ex.PW3/C and thereafter, he started search for the assailants but no clue was found.
12. That during investigation on 20.08.2016, he received an information from P.S. Anand Parbat that the assailants involved in present case were arrested in case FIR No. 381/2016 under Section 396 IPC, P.S. Anand Parbat which is Ex.C12 (Colly, 19 sheets) and recorded the statement of the IO of the case Inspector Sehdev Kumar in this regard.
13. That thereafter he had obtained production warrant of all the assailants namely Nadeem, Alok @ Pandit and accused Mohd. Salman @ Bholu.
14. That after getting permission from the court, he had interrogated all these persons.
15. That he had interrogated accused Mohd. Salman on 27.09.2016 and thereafter, he had arrested him vide memo Ex.C4 and recorded his disclosure statement Ex.C5 both bearing his signature at point A.
16. That accused Salman had pointed out the spot of occurrence during police custody and a pointing out memo Ex.C6 was prepared.
17. That he had made search for the recovery of the weapon of offence but despite best efforts the same could not be recovered.
State Vs. Mohd. Salman, FIR No. 535/2016, PS Sarai Rohilla, Judgment dated 16.05.2019 Page No. 10 of 14
18. That during the course of investigation, accused Mohd.
Salman was produced before the Ld. MM for TIP but the accused Mohd. Salman had refused to join the TIP proceedings, which TIP proceeding are Ex.C7.
19. That he collected opinion on the MLC which was dangerous vide Ex.C8.
20. That after completion of investigation, he had filed the charge sheet before the court.
The witness has correctly identified the accused Mohd. Salman in the court and also the case property i.e. two blood stained paper plates which were lifted from the spot which is Ex.P1 (Colly).
In his crossexamination by the Ld. Amicus Curiae, the witness has deposed as under : That he reached the hospital at about 11.10 PM and dispatched the rukka at 12.30 AM.
That HC Virender handed over the original rukka and copy of the FIR at about 2.00 AM on 08.08.2016, Mohd. Saddam remained with him till about 3.00 AM.
That most of the documents prepared by him are in his own handwriting whereas some of the documents are in the handwriting of ASI Vishram Meema.
That he remained there till about 3.00 AM.
That he received the information from P.S. Anand Parbat on 20.08.2016.
That the disclosure statement was recorded by him outside the court room but did not join any court staff or public person.
That there is no recovery of alleged weapon of offence from the accused Mohd. Salman.
STATEMENT OF THE ACCUSED:
(9) Since none of the eye witnesses i.e. Mohd. Rafiq (PW1) & Mohd. Saddam (PW3) as well as the injured Mohd. Miraz (PW2) have identified the accused Mohd. Salman as one of the assailant who had stabbed Mohd. Miraz; the statement of the accused under Section 313 State Vs. Mohd. Salman, FIR No. 535/2016, PS Sarai Rohilla, Judgment dated 16.05.2019 Page No. 11 of 14 Cr.P.C. was dispensed with. However, the statement of the accused Mohd. Salman was recorded under Section 281 Cr.P.C. wherein the entire incriminating material relating to the arrest and disclosure was put to the accused Mohd. Salam to which he stated that he is innocent and has been falsely implicated in another case bearing FIR No. 382/16, under Section 396 IPC, PS Anand Parbat and the present case has been foisted upon him only to workout the same.
FINDINGS & OBSERVATIONS:
(10) I have heard the arguments advanced before me and have gone through the testimonies of the various witnesses and the material on record. I may observe that the eye witnesses i.e. Mohd. Rafiq (PW1) & Mohd. Saddam (PW3) and the injured Mohd. Miraz (PW2) have supported the incident but turned hospital on the identity of the accused.
They have not been able to identify the accused Mohd. Salman as the assailant who had stabbed Mohd. Miraz. Mohd. Rafiq (PW1) has claimed that due to lapse of time he is unable to identify the accused whereas both Mohd. Miraz (PW2) and Mohd. Saddam (PW3) have claimed that it was dark at the time of incident and hence they could not identify the accused. No doubt, the prosecution has proved the formal arrest of the accused in the present case after his arrest in case FIR No. 381/2016, PS Anand Parbat under Section 396 IPC, but I may note that after his arrest in the present case, the accused Mohd. Salman refused to participate in the Judicial TIP proceedings claiming that his photographs have already been clicked which were already shown to the witness. The accused has duly State Vs. Mohd. Salman, FIR No. 535/2016, PS Sarai Rohilla, Judgment dated 16.05.2019 Page No. 12 of 14 admitted the said TIP proceedings which are Ex.C7. The only other material against the accused Mohd. Salman is his own disclosure statement which is Ex.C5 but I may observe that the said disclosure statement being made to a police officer while in custody is hit by the provisions of Section 27 of the Evidence Act and is inadmissible in evidence. Further, there is no recovery of weapon of offence pursuant to the alleged disclosure of the accused Mohd. Salman and there is no other evidence against the accused Mohd. Salman either direct or circumstantial or other to connect / link the accused Mohd. Salman with the offence. (11) This being the background, I hereby hold that the prosecution has not been able to prove its case against the accused Mohd. Salman beyond reasonable doubt. I hold that the circumstances reflected from the material on record do not stand conclusively established. The facts are also not consistent with the hypothesis of the guilt of the accused. The chain of evidence is not so much complete so as not to leave any reasonable ground for the conclusion consistent with the guilt of the accused. The material brought on record by the prosecution are insufficient so as to hold that the accused Mohd. Salman was guilty beyond reasonable doubt. Further, each circumstance has not been proved beyond reasonable doubt. The prosecution has also not established a conclusive link connecting each individual circumstance with the other, and the accused. Crucially, the material and evidence on the record do not bridge the gap between "may be true" and "must be true" so essential for a court to record a finding of guilt of an accused, particularly in cases based on circumstantial evidence.
State Vs. Mohd. Salman, FIR No. 535/2016, PS Sarai Rohilla, Judgment dated 16.05.2019 Page No. 13 of 14 (12) I, therefore, hold that the prosecution has not been able to prove and substantiate the allegations against the accused Mohd. Salman beyond reasonable doubt and hence, benefit of doubt is being given to the accused Mohd. Salman who is acquitted of the charges under Sections 393/394/34 IPC and 307/34 Indian Penal Code.
(13) The accused Mohd. Salman be released from Judicial Custody if
not required in any other case. Digitally
signed by
(14) File be consigned to Record Room. KAMINI LAU
KAMINI Date:
LAU 2019.05.16
17:17:59
+0530
Announced in the open court (Dr. KAMINI LAU)
Dated: 16.05.2019 Addl. Sessions JudgeII (Central),
Tis Hazari Courts, Delhi
State Vs. Mohd. Salman, FIR No. 535/2016, PS Sarai Rohilla, Judgment dated 16.05.2019 Page No. 14 of 14