Delhi District Court
S.C. No. 53/10 Fir No. 498/09 State vs . Mohd. Ayub @ Munna & Anr. 1 /21 on 4 March, 2013
IN THE COURT OF SHRI RAJEEV BANSAL,
ASJ-03 (SOUTH DISTRICT), SAKET COURTS,
NEW DELHI.
SC No. 53/10
(Unique I.D. No.02403R0119022010)
FIR: 498/09
PS: Sarojini Nagar
U/S:304/34 IPC
State
Versus
(1) Mohd. Ayub @ Munna
S/o Sh. Akbar
R/o Jhuggi of Ramesh No. A 944,
Sector-6, R.K. Puram, New Delhi.
(2) Smt. Momina @ Meena
W/o Sikandar Singh
R/o Adarsh Nagar, Gali No.1,
Palika-1, Tilpat, Faridabad, Haryana.
Date of Institution :13.03.2010
Date of Institution in the present case :27.09.2010
Date of Pronouncement Order :04.03.2013
S.C. No. 53/10 FIR No. 498/09 State vs. Mohd. Ayub @ Munna & Anr. 1 /21
JUDGMENT
1. Accused Mohd. Ayub is the son of co-accused Momina and both of them faced trial for causing death of Sikandar, who was father of Mohd. Ayub and husband of accused Momina.
2. The case of the prosecution, as per the charge-sheet, is that on 19.10.2009 at about 12:00 noon, a quarrel took place between Sikandar and the accused persons in which the accused persons gave brick blow on the head of Sikandar, due to which he remained hospitalized till his death which took place on 10.12.2009.
3. Since the offence under Section 304 IPC is exclusively triable by the Sessions Court, the case was committed to this court and in turn the charge under Section 304/34 IPC was framed against both the accused persons on 04.06.2010, to which they pleaded not guilty and claimed trial.
4. The prosecution examined 15 witnesses in support of its case and the gist of their deposition is as under:-
S.C. No. 53/10 FIR No. 498/09 State vs. Mohd. Ayub @ Munna & Anr. 2 /21 4.1 PW-1 Meena Devi stated that on 19.10.2009 at about 12:00 noon when she went into the park for putting the clothes for drying, she saw a quarrel going on between Sikandar and the accused persons. Due to beatings, Sikandar fell down on ground. Police reached the spot and took Sikandar to AIIMS Trauma Center and she accompanied the police to Trauma Center. She stated that deceased Sikandar was her Dharam Bhai and both the accused persons are mother and son. The witness was asked leading questions by the Ld. Addl. PP in which she agreed that she had stated to the police that Meena (wrongly typed in place of Momina) had thrown one brick towards Sikandar and her son Ayub had hit Sikandar with brick on his head. In the cross-examination, she stated that Sikandar and Momina used to quarrel with each other but Sikandar did not beat Momina; whenever there was any quarrel between Sikandar and Momina, she used to call her son Ayub;
accused Ayub was residing separately from Sikandar and they did not have cordial relation. She also stated that she had seen accused Ayub having a brick in his hand and hitting Sikandar on his head with the said brick. She saw the incident from a distance of about S.C. No. 53/10 FIR No. 498/09 State vs. Mohd. Ayub @ Munna & Anr. 3 /21 15-20 feet but did not try to intervene since she had been recently operated upon. When she saw Sikandar falling on ground, she rushed to save him; that another case of murder of her husband Baijnath Mukhiya was pending against both the accused persons; that she had seen both the accused persons carrying bricks in their hands. She also stated that she had gone inside her house after putting the clothes for drying and had come out after one and a half hour; and that the quarrel between the accused and Sikander was going on even at the time when she had put the clothes for drying; and that the quarrel continued for around 1 -1 ½ hours; and that she had witnessed the entire incident.
4.2 PW-2 Anand Prashad stated that about one year ago at about 11:00/12:00 noon, he saw one lady and one boy beating an old man with stones and bricks; when the old man became unconscious, he called police at 100 number from his mobile phone; police came there and took the injured to the hospital but he did not identify both the accused persons to be the persons, who had beaten that old man. The witness was cross-examined by the S.C. No. 53/10 FIR No. 498/09 State vs. Mohd. Ayub @ Munna & Anr. 4 /21 Ld. Addl. PP on the point of date of incident and on the identity of the accused persons to which he admitted that incident had taken place on 19.10.2009 but he refused to identify the accused persons to be the persons, who had beaten the old man.
4.3 PW-3 Dr. Ankush Sharma proved the MLC of Sikandar Singh as Ex. PW3/A. He noted swelling over right eye and lacerated wound on the forehead. He further stated that as the patient was serious, he was shifted to red area under the supervision of the senior Doctors and as per MLC, senior Doctors had declared him unfit for statement till 24.10.2009. In his cross- examination, he stated that the injuries were of the nature which could have been caused with hand or blunt object but not by sharp object.
4.4. PW-4 Sunil Kumar deposed that on 02.10.2009, a quarrel had taken place between Sikandar and his wife and son and during that quarrel, Sikandar sustained injuries, someone informed the police on 100 number; police came at the spot and took Sikandar to hospital and after about 15 days, he came to know that Sikandar S.C. No. 53/10 FIR No. 498/09 State vs. Mohd. Ayub @ Munna & Anr. 5 /21 has expired. He stated that Munna had caused injuries on the head and shoulder of Sikandar with bottle. This witness was also put some leading questions by the Ld. Addl. PP to which he replied that he cannot say as to whether Momina had caused injury to her husband Sikandar with fists, kick blows and brick. In his cross- examination, he stated that Sikandar had abandoned his wife and he occasionally visited her and his son Munna.
4.5 PW-5 SI Manvendra Singh stated that he received the case file on 05.03.2010 and after recording the statement of Anand Singh and completing the investigation, he filed the challan in the court.
4.6 PW-6 Mohd. Yusuf stated that on 19.10.2009, he received DD No.13A (Ex.PW6/A) regarding a quarrel at Jain Mandir; he reached the spot and came to know that the injured had been taken to hospital by PCR van. He then received a DD No.13B (Ex.PW6/B) from Trauma Center regarding admission of an injured, namely, Sikandar vide MLC No. 185088/09; he reached Trauma Center and found the injured admitted there but the Doctor S.C. No. 53/10 FIR No. 498/09 State vs. Mohd. Ayub @ Munna & Anr. 6 /21 declared him unfit for statement; he did not meet any eye witness in the hospital; in the Trauma Center, he had also received an information that vide DD No. 49B (Ex.PW6/C) dated 19.10.2009, that Ayub was admitted in Safdarjung Hospital by his wife Sonia vide MLC No. 219429 in injured condition. Thereafter, he reached Safdarjung Hospital but found that the injured had already been discharged from there and had gone to his house. When he reached his house at 10, Pillanji Village, Sarojini Nagar, he found that nobody was residing there then he reached at P-47, Pillanji Village, Sarojini Nagar where the injured Sikandar used to live but the said house was also found locked. From the neighbours, he came to know that a quarrel had taken place between Sikandar and his wife and his step son Ayub. He further stated that Ayub and Momina had fled away from the spot and no eye witness of the incident meet him; he kept the DD No. 13A pending. The injured remained unfit for statement for long, therefore, on 04.12.2009 a case under Section 325/34 IPC was registered. He proved the Rukka as Ex. PW6/D. On 10.12.2009, he received DD No. 18A (Ex.PW6/F) regarding death of Sikandar and, therefore, Section 304 IPC was S.C. No. 53/10 FIR No. 498/09 State vs. Mohd. Ayub @ Munna & Anr. 7 /21 added in the present case and the further investigation was marked to Inspector Ritu Raj. He proved the arrest of accused Ayub on 15.12.2009 as Ex. PW6/H and arrest of accused Momina on 21.01.2010 as Ex. PW6/K. 4.7 PW-7 Woman Ct. Kavita stated that on 21.01.2010, accused Momina was arrested vide Ex. PW6/K. In her cross- examination, she stated that the present case does not relate to murder of Vaijnath.
4.8 PW-8 Ct. Vipin Kumar also proved the arrest of accused Ayub on 15.12.2009 as Ex. PW6/H and accused Momina was arrested on 21.01.2010 vide her arrest memo Ex. PW6/K. 4.9 PW-9 SI Yogesh Raj proved the recording of DD No. 39B as Ex.PW6/B on 19.10.2009 at 3:30 p.m. He stated that copy of the DD was handed over to ASI Mohd. Yusuf. DD No. 49B was proved as Ex. PW6/C. 4.10 PW-10 HC Naresh Kumar stated that he recorded the DD No. 18A on 10.12.2009 as Ex. PW6/F at 1:15 p.m regarding death S.C. No. 53/10 FIR No. 498/09 State vs. Mohd. Ayub @ Munna & Anr. 8 /21 of Sikandar in Trauma Center.
4.11 PW-11 HC Sahender Pal stated that on 19.10.2009 at about 2:00 p.m after receipt of a PCR call regarding a quarrel at Pillanji Village, he alongwith the staff reached there and took injured Sikandar to AIIMS, Trauma Center. In his cross-examination, he stated that when he reached the spot, blood was oozing from the face of the injured and one lady had accompanied the injured, apart from his staff.
4.12 PW-12 Dr. Thejaswi H.T deposed on behalf of Dr. Subhash Chandra and stated that he had left hospital but since Dr. Subhash had worked with her and she had seen him writing and signing, she identified his handwriting and signatures on the Postmortem Report No. 302/09 which she proved as Ex. PW12/A. She stated that according to the Postmortem Report, deceased was admitted in injured condition on 19.10.2009 vide MLC No. 185/08/2009 and he died on 10.12.2009 at 9:00 am and the cause of death was septicemic shock as a complication of cranio-cereberal damage as a result of blunt force/surface impact.
S.C. No. 53/10 FIR No. 498/09 State vs. Mohd. Ayub @ Munna & Anr. 9 /21 4.13 PW-13 HC Dharam Singh stated that on 04.12.2009, he was working as Duty Officer and on that day at about 10:00 p.m, he recorded the FIR No. 498/09 under Section 325 IPC after receiving Rukka. He proved the FIR as Ex.PW13/A and his endorsement on the Rukka as Ex. PW13/B. 4.14 PW-14 Inspector Ritu Raj stated that on 15.12.2009, he arrested accused Ayub vide Ex. PW6/H. During interrogation, he revealed his involvement in another FIR No. 109/09 under Section 302/201 IPC, P.S. Jaffarpur Kalan regarding murder of one Vaijnath. He stated that on 21.01.2010, co-accused Momina was arrested vide Ex. PW6/K which bears his signatures. In his cross- examination, he stated that apart from Meena, there was no other eye witness.
4.15 PW-15 Lady Ct. Praveena Kumari stated that she had recorded the PCR message on 19.10.2009 at 13:58:53 regarding quarrel at Pillanji Village near Jain Mandir. She proved the PCR call as Ex.PW15/A. S.C. No. 53/10 FIR No. 498/09 State vs. Mohd. Ayub @ Munna & Anr. 10 /21
5. All the incriminating circumstances were put to the accused persons and they were examined under Section 313 Cr.P.C wherein they denied their involvement in the offence. Accused Ayub stated that the deceased was under the influence of alcohol and attempted to assault the accused and the accused acted in self defence and the deceased fell and suffered injuries. Accused Momina stated that the deceased under the influence of alcohol alleged that she had relation with a neighbour and started abusing her and assaulted her and, therefore in return she acted as self defence and the deceased fell and suffered injuries. However, none of the accused persons led any defence evidence.
6. Ld. Addl. PP has stated that the prosecution witnesses have supported the prosecution case. It has been stated that PW-1 Meena Devi has fully supported the prosecution case and has deposed that she witnessed the incident in which the accused persons had caused injuries on her brother Sikandar with brick on his head. She also accompanied the injured Sikandar to hospital. It has also been stated that PW-4 Sunil Kumar is also an eye S.C. No. 53/10 FIR No. 498/09 State vs. Mohd. Ayub @ Munna & Anr. 11 /21 witness, who has also supported the prosecution case regarding the quarrel but he could not identify the accused. It has been stated that deceased Sikandar was injured in the incident of quarrel which took place on 19.10.2009 and thereafter he remained hospitalized and died on 10.12.2009 in the hospital.
7. On the other hand, Ld. Counsel for the accused has stated that there is delay in registration of the FIR. It has been stated that the incident in question took place on 19.10.2009 whereas the FIR was registered on 04.12.2009 and there is no explanation of this ordinate delay on the part of the prosecution. It has been stated that this belated FIR does not say any offence, neither the name of accused Mohd. Ayub figures in the FIR nor his role has been mentioned and it is only the role of co-accused Momina which has been mentioned in the FIR. Ld. Counsel has stated that Ayub had himself suffered injuries as per MLC Ex. PW14/A but the prosecution has not been able to explain these injuries. It has been stated that case of the defence is that there was a quarrel between the deceased Sikandar and the accused persons wherein the S.C. No. 53/10 FIR No. 498/09 State vs. Mohd. Ayub @ Munna & Anr. 12 /21 deceased had assaulted the accused persons and in his self defence the accused Mohd. Ayub got injured. It has been stated that PW-1 Meena has not disclosed the entire incident in her deposition wherein she has stated that she had gone inside her house for sometime when the quarrel had taken place. Further, she has not stated about the injury which was suffered by accused Mohd. Ayub. The other eye witness Anand Prakash could not identify the accused persons whereas the third eye witness PW-4 Sunil Kumar had stated that only accused Mohd. Ayub @ Munna had caused injury and not Momina. It has, therefore, been stated that there is no coherence in the deposition of the three eye witnesses and, therefore, the prosecution has failed to prove its case. It was also stated that the statement of the witnesses under Section 161 Cr.P.C were recorded after 2 ½ months of the incident and worst of all, the statement of eye witness PW-1 Meena was recorded after five months of the incident.
8. In reply, Ld. Addl. PP has stated that the delay in registration of the FIR took place as the injured was hospitalized and was not in S.C. No. 53/10 FIR No. 498/09 State vs. Mohd. Ayub @ Munna & Anr. 13 /21 a position to make statement and no other eye witness was found during this period.
9. I have perused the records of the case and have heard the Ld. Addl. PP. as well as the Ld. Counsel for the accused persons.
10. Prosecution case rests on evidence of three eye witnesses namely PW-1 Meena Devi, PW-2 Anand Prasad and PW-4 Sunil Kumar. PW-1 Meena Devi is a relative of the deceased, being his distant sister. There is no law that a relative is not a competent witness but nevertheless evidence of such a witness is required to be carefully examined because of the inherent danger of the witness being a relative of the injured/deceased. She deposed that on 19.10.09 at about 12 noon, she saw some quarrel between both the accused persons and deceased and that she accompanied police when deceased was taken to hospital. She does not narrate as to how and why the quarrel took place. She does not state as to who caused the injury and in what manner. On being led by the Ld. Addl. PP she stated that Meena (sic Momina) had thrown one brick S.C. No. 53/10 FIR No. 498/09 State vs. Mohd. Ayub @ Munna & Anr. 14 /21 towards Sikandar and her son Ayub had hit the deceased Sikandar with brick on his head. However, when this witness was cross- examined, she stated that she had gone inside her house after putting the clothes for drying and had come out after one and a half hour; and that the quarrel between the accused and Sikander was going on even at the time when she had put the clothes for drying; and that the quarrel continued for around 1 -1 ½ hours; and that she had witnessed the entire incident. This deposition of this witness has material contradictions, apart from being not realistic and may be actuated by motive. This witness has already stated that both the accused persons are facing a separate trial for murder of the husband of this witness. She had also stated that the deceased was her brother being Dharam Bhai. In such a circumstance, her deposition is to be very very carefully sifted. It cannot be ruled out that the witness might have been influenced by these two circumstances to depose against the accused persons. If we talk about contradiction, she stated at one place that she had witnessed the entire incident whereas at another place she stated that she had gone inside her house after putting the clothes for S.C. No. 53/10 FIR No. 498/09 State vs. Mohd. Ayub @ Munna & Anr. 15 /21 drying and had come out after one and a half hour. Now, what do we believe - had she witnessed the entire incident or not because she stated that the quarrel took place for 1 - 1 ½ hour. If she had seen the entire incident wherein her brother was being beaten by the accused persons, she should have spontaneously and naturally gone there to save him but she said that she went inside the house and came out after one and a half hour and even at that time, quarrel was going on. So the inference which can be drawn from her deposition is that either she had not witnessed the quarrel or the quarrel was too mild for her to pay attention. She had stated that she saw the incident from a distance of about 15-20 feet but did not try to intervene. The reason for non-intervention given by her is her surgery. Surgery could have prevented her from saving her brother from the assault of the assailants but it could not have prevented her from calling help from other neighbours. After all, she was living in a habitated area and if a quarrel/assault of the nature as stated by this witness takes place, the neighbours would themselves pour in there to separate the fighters and would have saved the injured. Since the witness has nowhere stated to have called for S.C. No. 53/10 FIR No. 498/09 State vs. Mohd. Ayub @ Munna & Anr. 16 /21 any help even after seeing her brother being beaten, it raises serious doubts about the presence of this witness at the spot and to have witnessed the assault. If she had gone inside her house, then when did she witness the assault? Looking her evidence from this angle, her deposition that she saw both the accused giving brick blows to the deceased needs to be corroborated.
11. PW-2 Anand Prashad is another eye witness but he could not identify any of the accused persons to be the assailants. He also could not give the date, month and year of the incident until he was cross-examined by the Addl. PP. Other witness PW-4 Sunil Kumar stated that only Munna had caused injury on the deceased, although, the date of incident mentioned by him is 02.10.2009. He does not name co-accused Momina to be one of the assailants. If the evidence of all three persons is considered, it is found that all of them claimed to be the eye witnesses of the incident, although, all three of them are giving different versions regarding the assailants. In fact, PW-2 and PW-4 have not even described the manner in which the quarrel was taking place.
S.C. No. 53/10 FIR No. 498/09 State vs. Mohd. Ayub @ Munna & Anr. 17 /21
12. The question which arises is if all three of them had witnessed the assault, why the FIR was not registered spontaneously more so when PW-1 Meena Devi had accompanied her injured/deceased brother to hospital in PCR with police which was confirmed by PW-11 Shahender Pal also. She would have told the police that both the accused persons had assaulted her brother and the case would have been registered against both the accused persons immediately on 19.10.2009 itself. However, the FIR was registered only on 04.12.2009 and even in this FIR, name of accused Mohd. Ayub is not mentioned at all. Accused Momina's name is mentioned only with respect to a quarrel between her and injured Sikandar. PW-3 Dr. Ankush Sharma deposed that injured Sikandar was unfit for statement till 24.10.2009. PW-6 ASI Mohd. Yusuf also stated that injured remained unfit for statement. According to medical records i.e MLC of the deceased bearing No. 185088 Ex.PW3/A, injured Sikandar was unfit for statement only till 24.10.2009. PW-6 ASI Mohd. Yusuf has not explained as to why the statement of injured Sikandar was not recorded immediately thereafter. As per records, injured had become fit to S.C. No. 53/10 FIR No. 498/09 State vs. Mohd. Ayub @ Munna & Anr. 18 /21 give statement atleast on 25.10.2009 and his statement could have been recorded by the IO at that time or immediately thereafter wherein he would have stated as to who were the assailants but that was not done. Similarly, the IO could have recorded the statement of other eye witnesses as well. But ironically, the FIR was registered only on 04.12.2009 and that too under Section 325 IPC meaning thereby that by that time the prosecution had no clue as to who had assaulted the injured. PW-6 has stated that on 19.10.2009, he had also visited the house of the injured as also of accused Ayub but nobody was found there and he had made inquiries from the neighbours and had come to know that a quarrel had taken place between injured Sikandar and his wife and his step son Ayub but since Momina and Ayub had fled away from the spot and no eye witness met him, he kept the DD pending. It is unbelievable that the other two eye witnesses, namely, Anand Prakash and Sunil Kumar, who have been examined by the prosecution as PW-2 and PW-4 respectively, who were living in Pillanji Village itself, were not found by the IO, who could state that they had seen the accused persons assaulting the injured. It is needless to say that since the S.C. No. 53/10 FIR No. 498/09 State vs. Mohd. Ayub @ Munna & Anr. 19 /21 FIR was recorded on 04.12.2009, the statements of the witnesses were recorded after 04.12.2009 under Section 161 Cr.P.C.
13. As noted earlier, PW-6 had also stated that accused Mohd. Ayub was also admitted in Safdarjung Hospital vide MLC No. 219429 (Ex.PW6/C). The defence is that the injured/deceased had attacked Mohd. Ayub and they acted in self defence in which deceased fell down and received injuries. The prosecution has not been able to explain as to how accused Mohd. Ayub received the injuries noted in Ex.PW6/C. All these circumstances when taken together, leads to the irresistible conclusion that there are omissions and contradictions in the prosecution case apart from there being the element of PW-1 being relative of the deceased and the element of previous enmity as accused were also tried for murder of the husband of PW-1. Counsel for the accused persons had stated during the course of arguments to a query of this court that the said trial of the accused for murder of the husband of PW-1 has ended in acquittal of the accused persons. It is trite that the prosecution is duty bound to prove its case beyond all reasonable doubt and if any S.C. No. 53/10 FIR No. 498/09 State vs. Mohd. Ayub @ Munna & Anr. 20 /21 doubt occurs, the benefit of the same shall go to the accused persons.
14. In this view of the matter, since the prosecution has not been able to prove its case beyond all reasonable doubts, the accused persons are entitled to be acquitted giving them the benefit of doubt. Accordingly, the accused persons are acquitted. They are in custody and be released, if not required in any other case.
15. File be consigned to the Record Room.
Announced in the open Court. (Rajeev Bansal)
Dated:04.03.2013 ASJ-3/South District
Saket Courts, New Delhi
S.C. No. 53/10 FIR No. 498/09 State vs. Mohd. Ayub @ Munna & Anr. 21 /21