Delhi District Court
"Prithvi Nath Pandey vs . State" 1994 Cr. L.J. 3623 (All.). ... on 19 January, 2009
IN THE COURT OF SH. SATINDER KUMAR GAUTAM,
ADDITIONAL SESSIONS JUDGE( WEST-04) , DELHI.
SC NO. 34/08
State
Versus
1- Tausif Ahmed
S/o Rafiq Ahmed
R/o B-9/68B, DDA Flat, Inderlok,
Delhi.
2- Juber S/o Mohd. Istikar
R/o B-9/68 B, DDA Flat, Inderlok,
Delhi.
Case arising out of
FIR No. 34/08
U/S: 308/34 IPC
P.S. Sarai Rohilla
Date of FIR : 6.2.2008
Date of Institution : 27.11.2008
Date of Final Arguments : 15.1.2009
Judgment reserved on : 15.1.2009
Date of judgment : 19.1.2009
JUDGMENT
1- This judgment shall dispose of the case vide FIR No. 34/2008 of P.S. Sarai Rohilla u/s 308/34 IPC against the accused Tausif Ahmad and Juber.
Contd..........
/2/ Factual Matrix 2- From the perusal of the chargesheet it revealed that Shuib Ahmad made statement before the IO ASI Rampal Singh that he is residing at 313/79, Tulsi Nagar, Inderlok, Delhi and also work at said house for sheet metal and about two years back he was working at the plot of Tausif Ahmed being No. 159 Phase-II, Sehjada Bagh. He left his previous job and started working alongwith his brother at the aforesaid address which resulted to a hard burn and jealous feeling by Tausif Ahmad and as and when Tausif Ahmed met they made taunting remarks " Meri Roti Khakar Palte Thai Wo bhi Facotry Malik Ban Gaye. Tumhari Factory Band Karake Tumhey Nanga Karke Amroha Bhejunga. On 5.2.2008 at about 9 pm he and his brother gone to the plot of Sattar bearing No. 165 Phase -II, Sehjada Bagh to participate in the auction of lottery where the Tausif and Juber were also there they started using filthy language with remarks that " Tum Hamari partiyo of kharab karte ho aj hum tumhey sabak sikha denge aur tumhara kam tamam kar dete hai". On this he and his brother advised that they have nothing to do with their parties and they have come to participate in the auction of committee but they did heard them and Tausif was having an Contd..........
/3/ iron pipe and Juber was having an iron rod resulted which he fell down on the ground and sustained injuries on his head as well as other parts of the body. He made hue and cry for help in between both the accused have run away from the spot. He took his brother in the TSR and taken to Hindu Rao Hospital and also called the PCR Van. Both the accused have hit iron rod/pipe on the parts of his brother Suhail with intend to commit murder. He wanted legal action against both of them.
3- From the aforesaid statement recorded by ASI Ram Phal Singh FIR No. 34/08 u/s 308/34 IPC was lodged against both the accused persons. Suhail was got medically examined. Both the accused were being arrested. Their disclosure statement were recorded. Pointing out memo of the place of occurrence was being prepared and iron rod was also recovered on the instance of accused Mohd. Juber. Personal search and arrest memos were prepared . During the course of investigation matter between the parties has been compromised and vide order dated 15.2.2008 both the accused were released on anticipatory b ail by the court of Ms. R. Kiran Nath , Ld. ASJ Delhi. After completion of investigation charge sheet was put to the court for trial.
Contd..........
/4/ 4- Ld. Magistrate supplied the copies of the charge sheet and committed the proceeding u/s 207 to the court of Sessions, since the case is exclusively triable by court of Sessions and assigned to the predecessor of this court.
5- Ld. Predecessor of this court vide order dated 1.8.2008 framed the charges against both the aforesaid accused u/s 308/34 IPC. For which both the accused have pleaded not guilty and claimed trial. Evidence 6- In order to bring home the guilt of the accused within the four corners of the provision of offence in question the prosecution cited 11 witnesses out of them only 6 witnesses are examined. 7- PW1 SI Mohd. Fiaz Khan was the Duty Officer and has proved the copy of FIR vide Ex. PW1/B. PW5 Ct. Rambir has deposed that on On 5.2.2008 he was posted as Ct. in Police Post Inder Lok, PS Sarai Rohilla, the DD No. 38 with respect to the quarrel received by ASI Ramphal. He alongwith ASI Ram Phal went to the spot i.e. Phase -2, House No. 169, Sehjada Bagh. There from IO received a call that the injured Mohd. Suhail already admitted in the HRH and no eyewitness available at the spot. Then they went to the Hindu Rao Hospital and met to the eyewitness Mohd.
Contd..........
/5/ Suhail, who deposed that the accused are close relation as Jija and Sala , they caused injuries to his brother Suhail with the help of iron rod and iron pipe. IO recorded the Tehrir. Then he went to the PS alongwith the Tehrir and got registered the FIR. After registration of FIR he came to the hospital alongwith the copy of FIR and original Tehrir and handed over the same to IO and came back to the PS. IO recorded his statement on 6.2.2008 at the police Post.
8- PW6 ASI Ramphal was the IO of the case and deposed about the investigation done in the present case and has exhibited the document prepared during the investigation. And proved the preparation of rukka vide Ex. PW1/A, site plan Ex. PW6/A, arrest of accused Tausif vide memo Ex. PW6/B, personal search of accused Tausif vide Ex. PW6/C. He further proved the on 19.2.2008 accused Juber was arrested vide memo Ex. PW6/D and his personal search was conducted vide memo Ex. PW6/E and on the basis of disclosure statement iron rod was recovered vide recovery memo Ex. PW6/G and also proved the he obtained the result of MLC vide Ex. PW6/H and after completion of investigation be prepared the chargesheet.
In his cross examination PW6 has denied the suggestion made by Ld. Defence Counsel. He however, admitted that he did Contd..........
/6/ not prepare the rough sketch of case property and measured the length and width of the iron rod, the same is about 2.5 feet in length and the thickness is about 0.75 inch. He further admitted the he has not cited any public witness while recovering the rod from the public park and did not prepared any site plan of the place of recovery. And rest of the suggestion were denied by PW6.
9- The material witnesses examined are PW2 Suhail, who stated in his examination that on 5.2.2008 at about 9 pm, he and his brother Suaib Ahmad were present in front of plot No. 159 , Phase 2nd, Sehjada Bagh Inder Lok. They were encircled by two three unknown person. They abused them and caused injuries to Shuib on the head from behind by piece of brick. Shuib became unconscious and regained consciousness in the hospital. He does not know what happened with his brother. Police official met him in the hospital. Injured Shuib narrated above incident to them, his brother's signatures were also obtained by the police officials on one paper same is Ex. PW2/A which bears his signatures at point A. He did not know anything else. He was discharged from the hospital on the same day. Police never met him thereafter.
Contd..........
/7/ Ld. APP has also cross examined this witness and in his cross examination by Ld. APP suggestion were denied that his statement was recorded by the police in this case and accused Tausif Ahmed and accused Juber had encircled him and his brother or that both were having iron rod and iron pipe in their hands. PW2 has further denied that both the aforesaid accused present in the court had caused injuries with their weapon on his head and that both the accused present in the court were arrested by the police in his presence or that they got recovered weapon of offences. PW2 Suhail has further denied that police officials had taken him to the spot for that , IO prepared rough site plan on his pointing out and he has been won over by the accused persons or that he is not intentionally identifying both the accused persons , as he and his brother had compounded the case with them out side the court or that he is deposing falsely in order to save both the accused persons.
10- PW3 Shuib has also been declared hostile by Ld. APP and he has been cross examined at length and confronted with statement recorded during the investigation. He denied each and every suggestion whereas further denied that his statement was recorded by the police in this case and Tausif Ahmad and accused Juber Ahmad had encircled him and his brother Contd..........
/8/ or that both were having iron rod and iron pipe in their hands. HE further denied that the aforesaid accused present in the court had caused injuries with their weapon on the head of Suhail and both the accused present in the court were arrested by the police in his my presence or that they got recovered weapon of offences. PW3 has further denied that police officials had taken him to the spot for that , IO prepared rough site plan on his pointing out, it is further denied that he has been won over by the accused persons or that he is not intentionally identifying both the accused persons , as he and his brother had compounded the case with them out side the court or that he is deposing falsely in order to save both the accused persons. 11- PW4 Sattar has deposed that he is running a mobile shop. There was a crowd in front of his house, but he did not remember the date , time and year. However it was about 4/5 months back. There was some hot wording between the Suhaib and Toshif . Thereafter due to the intervention they left the spot after being separated by the public person. Rest he did not know.
In his cross examination by Ld. APP, the PW4 has stated that the IO had not recorded his statement. PW4 has denied that IO Contd..........
/9/ has recorded his statement u/s 161 Cr.P.C and he have deposed in his statement that the accused Tausif and Juber caused head injury to the injured Suhail. The PW4 has further denied that accused persons have won over his and he is deposing falsely.
12- No other witness has been examined by prosecution, thereafter the prosecution evidence was closed. Statement of both the accused persons were recorded u/s 313 Cr.P.C. All the incriminating evidence come on record has been put to both the accused persons. However both the accused has denied the same and stated that it is a false case and they have been falsely implicated in this case. They do no want to lead any evidence in their defence.
13- I have heard submission of Ld. APP and counsel for the accused persons and also gone through the relevant material on record. 14- The wording of section 308 IPC is the same as that of the preceding one except that it deals with an attempt to commit culpable homicide. An attempt to commit a crime is an act done with intent to commit that crime and forming part of a series of acts which would constitute its actual commission if it were interrupted. The offence punishable under section 308 IPC postulates doing of an act with such intention or knowledge and under such circumstances that if one by that act caused death, then he Contd..........
/10/ would be guilty of culpable homicide not amounting to murder. An attempt of that nature may actually result in hurt or may not. It is the attempt to commit culpable homicide which is punishable under section 308 IPC. The prosecution must prove:-
(1) that the death of a human being was attempted. (2) that such act was of the accused; and (3) that the act was done with intention or knowledge and under the circumstances that if it had caused death, that act would amount to culpable homicide not amounting to murder.
15- In a case titled as Tukaram V State of Maharashtra (1994) 1 SCC 465 wherein Supreme Court has held that " when in an occurrence of scuttle during the fight between the accused and the victim none of the vital organs of the victim was injured and the accused could be attributed with the knowledge that the injuries were likely to cause death, the accused cannot be convicted of the attempt to murder but to attempt to commit culpable homicide not amounting to murder.." 16- The evidence led by prosecution of the PW2 Suhail who categorically stated in his deposition that he did not know the other facts of the case and further in the cross examination it is denied that the accused Tausif and accused Juber Ahmad had encircled him and his brother and both Contd..........
/11/ the accused persons caused injuries on his head. PW3 Shuib is also being declared hostile and in his cross examination he also denied the suggestion as well as confronted with the statement recorded by IO during the course of investigation. PW4 Sattar has also denied to say anything with respect to the present case even he also denied that his statement u/s 161 Cr.P.C was recorded by the IO and accused persons have caused head injuries to the injured Suhail. As such all the three material witnesses did not support the case of the prosecution at any point of time. Further at the time of passing the order of anticipatory bail to this effect it has come on record that the injured/witnesses and accused persons are near relatives and hence there is every possibility that the matter between the parties have been compounded. 17- In appreciating oral evidence, the question in each case is whether the witness is a truthful witness or not and whether there is anything to doubt his veracity. Where the witness is found to be untrustworthy on material fact, there is no question of relying upon him to convict the accused. But where the witness is found to be partly truthful or the evidence is found to be partly truthful of the evidence is found to spring from tainted sources, the court may take the precaution of seeking some corroboration, adequate and reasonable to meet the demands of the situation. But the Court is not entitled Contd..........
/12/ to reject the evidence of a witness only because he is Government servant coming into contact with the investigating officer as held in a case titled as State of Gujarat V Raghunath AIR 1985 SC 1092 : 1985 CrLJ 1357. 18- The maxim falsus in uno falsus in omnibus i.e., false in one thing, false in every thing is neither a sound rule of law nor a rule of practice. So testimony of the prosecution witnesses which is found to be false in respect of one fact cannot be rejected outright as a whole, it can be accepted on cumulative evidence and other material on record as held in case titled as "Prithvi Nath Pandey Vs. State" 1994 Cr. L.J. 3623 (All.). Similarly, mere fact that the evidence of one witness was found unsafe for conviction is not per se a ground for rejecting the whole testimony of the prosecution because the maxim falsus in uno falsus in omnibus cannot be mechanically applied as held in case titled as "Nadodi Jayaraman Vs. State" AIR 1993 SC 777.
19- Credibility of a witness has to be decided by referring to his evidence and finding out how he has stood the test in cross-examination and what impression is created by the evidence taken in other context of the case and not by entering into the realm of conjecture and speculations as held in case titled as "State of U.P. Vs. Noorie" (1996) 9 SCC 104.
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/13/ 20- Therefore, in view of the aforesaid discussion, I am of the view that when the evidence adduced did not conclusively lead to the guilt of the accused persons and only pointed needle of suspicion towards the accused and nothing more then in such circumstances accused cannot be convicted because suspicion is no substitute for proof in criminal trial. In criminal case standard for proof beyond reasonable doubt of a reasonable man is to be adopted. Hence in view of the aforesaid facts and circumstances, I come to the conclusion that the testimony of prosecution witnesses is inconsistence and based on realm of conjuncture and speculation which found to be untrustworthy and uncorroborated. The evidence of eye witnesses and other evidence are impeachable and not inspired any confidence and there is no cogent evidence to be booked the accused persons within the four corner of guilt. There is no definite and conclusive evidence of the prosecution witnesses which can convict the accused persons. The prosecution failed to prove the charges against the accused persons beyond the reasonable doubt.
Contd..........
/14/ 21- Accordingly in view of aforesaid discussion, both accused persons namely Tausif Ahmed S/o Rafiq Ahmed and accused Juber S/o Mohd. Istkar are hereby acquitted for the charges leveled against them. Bail bonds of accused persons are canceled. Their respective sureties are also discharged. Case property be disposed of in accordance with law. File be consigned to Record Room.
Announced in the open court (SATINDER KUMAR GAUTAM) today i.e. on 19.1.2009 ADDITIONAL SESSIONS JUDGE (WEST-04): DELHI