Delhi District Court
Fir No: 188/2019, Ps: Nfc Case ... vs . Modh. Yashir @ Danny on 22 November, 2022
IN THE COURT OF SH. SONU AGNIHOTRI
ADDL. SESSIONS JUDGE (SOUTHEAST)03,
SAKET COURTS: DELHI
Case Registration No. 40/2020
CNR No: DLSE010005852020
FIR No. 188/2019
Police Station: New Friends Colony
Under Section: 307/34 IPC
STATE
VERSUS
1. MOHD. YASHIR @ DANNY
S/o Mohd. Zakir
R/o H. No. 76/15, Main Bazar, Okhla
Village, New Delhi.
2. ZEESHAN KHAN @ BIGSHAW
S/o Ikram Khan
R/o H. No. B13, Gali No. 18,
Near Qadri Masjid, Zakir Nagar,
Jamia Nagar, New Delhi.
Date of institution : 24.12.2019
Date of Reserving judgment : 01.10.2022
Date of Pronouncement : 22.11.2022
Decision : Acquitted
FIR No: 188/2019, PS: NFC Case Registration No. 40/2020 State Vs. Modh. Yashir @ danny
page no. 1....of 11
For State : Sh. F. M. Ansari, Learned Addl. Public Prosecutor.
For Defence: Sh. Mohd. Azeem, counsel for accused Zeeshan.
JUDGMENT
1. Accused persons were committed for trial by court of Ms. Vijeta Singh Rawat,, Ld. Additional Chief Metropolitan Magistrate, South East District, Saket Courts, New Delhi, charge sheet having been filed against accused persons for commission of offence U/sec 307/34 IPC.
2. Charge U/sec 307/34 IPC was framed against accused persons on 04.03.2020 on the facts that on 16.08.2019 at about 11:00 PM at Holy Family Hospital, Main Gate, both accused alongwith their two other associates (not arrested yet) in furtherance of their common intention caused stab injury to injured Hasmuddin Khan with intent to commit his murder and caused grievous hurt to him with intention or knowledge and under the circumstances that, if by that act, you both had caused his death, you would have been guilty of his murder.
3. Brief facts on the basis of which chargesheet in the matter was filed are as follows:
4. That on 16.08.2019, ASI Mahavir Singh during FIR No: 188/2019, PS: NFC Case Registration No. 40/2020 State Vs. Modh. Yashir @ danny page no. 2....of 11 emergency duty received DD No. 62 A whereupon, he alongwith HC Rakesh went to Holy Family Hospital where he found one Hasmuddin Khan under treatment vide MLC No. 119/19. ASI Mahavir Singh procured MLC of injured with history of stab wound injury by knife. Concerned doctor declared injured fit for statement but injured stated that he will give statement later on. Later on, injured was admitted in Trauma Center for his treatment and ASI Manabir Singh recorded his statement.
5. Complainant/ injured Hasmuddin Khan in his statement stated that he is working as private driver and today i.e. 16 17/08/2019 in the night, he alongwith his acquaintance Dilshad came to Holy Family Hospital to see someone known to Dilshad. He stated that at around 11:00 PM, when he was standing near gate of Holy Family Hospital, four boys came and started asking for keys of motorcycle of Dilshad to which he stated that he does not have the keys whereupon, one of the four boys stabbed him and one hit him with a pot. He stated that other two boys gave him leg and fist blows. He stated that the boy who stabbed him was Zeeshan @Bishle and that he does not know name of other three boys but that he can recognize on seeing them. He stated that he suffered injuries from stabbing and beating. He prayed for taking action against four boys.
FIR No: 188/2019, PS: NFC Case Registration No. 40/2020 State Vs. Modh. Yashir @ danny page no. 3....of 11
6. ASI Mahabir Singh got lodged FIR u/s 324/34 IPC by sending tehrir in the PS through HC Rakesh and carried out investigation by himself after registration of FIR.
7. During investigation doctor concerned handed IO blood stained cloths of complainant/ injured alongwith broken piece of knife in sealed condition alongwith sample seal which were taken into possession vide separate memo and the same was deposited in malkhana of the PS.
8. Place of incident was inspected at instance of complainant and site plan was prepared by IO. IO recorded statements of witnesses. IO gave notice u/s 91 CrPC to security officer, Holy Family Hospital to provide CCTV Footage which was taken on a pen drive. Security Incharge was inquired regarding hard disk of CCTV Footage which was stated to contain other CCTV Footage also and could not be given at the moment but it was stated that as and when Police/ Court asks for the same, the same will be produced. IO took CCTV Footage in pen drive and seized the same vide separate memo. IO recorded statements of witnesses.
9. IO took into possession admission and discharge papers of complainant/ injured. Complainant told IO that he came to know name of one of the attackers to be Yashir @ Danny, R/o Okhla Village. IO took opinion of injuries of complainant FIR No: 188/2019, PS: NFC Case Registration No. 40/2020 State Vs. Modh. Yashir @ danny page no. 4....of 11 which was opined to be grievous on account of which Section 324 IPC was replaced with Section 307 IPC. IO made inquiries from Mohd. Dilshad whereupon he told name of assailants to be Zeeshan Khan @ Bigshaw and Yashir. IO recorded separate statement of Mohd. Dilshad u/s 161 CrPC.
10. On 05.10.2019, ASI Liyakat Ali from PS Jamia Nagar vide DD No. 20 B informed that one Mohd. Yashir @ Danny has been arrested in FIR No. 215/2019 u/s 452/308/34 IPC and Section 25/27 Arms Act, PS Jamia Nagar who has disclosed role of stabbing to injured in the present case and that accused shall be produced in court today and that concerned IO be sent. IO procured copy of relevant record of FIR No. 215/2019, PS Jamia Nagar from ASI Liyakat Ali and moved an application for issuance of production warrants of accused Mohd. Yashir @ Danny before the court which was allowed. Accused Mohd. Yashir @ Danny was interrogated and formally arrested on 15.10.2019 after taking permission from court. Accused Mohd. Yashir @ Danny disclosed his involvement alongwith Zeeshan @ Bigshaw and other accomplices. Accused Mohd. Yashir @ Danny was sent to JC and statements of witnesses were recorded.
11. IO searched for co accused Zeeshan Khan @ Bigshaw and knife used in commission of offence in question. During FIR No: 188/2019, PS: NFC Case Registration No. 40/2020 State Vs. Modh. Yashir @ danny page no. 5....of 11 investigation on 25.11.2019, accused Zeeshan Khan @ Bigshaw was arrested near HR Public School, Jogabai Extension, Yamuna Pushta who disclosed his involvement in present case alongwith co accused Yashir Khan @ Danny, Hayat and Salim. Accused Zeeshan Khan @ Bigshaw was produced before court and his one day PC was taken to recover case property and to arrest co accused. Accused Zeeshan Khan @ Bigshaw during his PC remand disclosed names of other co accused to be Salim and Hayat but could not tell their addresses. IO tried to locate knife used in commission of offence in question but could not recover the same. IO produced accused Zeeshan Khan @ Bigshaw before court after expiry of his PC remand and sent him to JC. It is mentioned in the charge sheet that supplementary charge sheet shall be filed on arrest of co accused Salim and Hayat.
12. After completion of investigation, charge sheet in the matter was filed.
13. On 24.12.2019, police report under Section 173 of the Code of Criminal Procedure, 1973 (Cr.P.C) was put up before Ld. Additional Chief Metropolitan Magistrate with a view to put accused for trial.
14. In the light of the police report and the documents filed alongwith the same, learned Additional Chief Metropolitan FIR No: 188/2019, PS: NFC Case Registration No. 40/2020 State Vs. Modh. Yashir @ danny page no. 6....of 11 Magistrate having taken cognizance of the offence complied with the provisions of Section 207 of Cr.P.C and thereafter, committed case for trial.
15. On 04.03.2020, charge was framed against accused persons for having committed offence punishable under Section 307/34 IPC. Charge was read over and explained to accused persons to which accused did not plead guilty and claimed trial.
16. In support of its case, prosecution examined 06 witnesses in total: PW1 Dr. Mala Saini PW2 Hasmuddin PW3 Raj Kishor Yadav PW4 HC Naveen PW5 Mohd. Dilshad PW6 Retired SI Liyakat Ali
17. Prosecution evidence was closed on 28.09.2022.
18. On 01.10.2022, accused were examined under section 313 Cr.P.C wherein incriminating material appearing in evidence against accused were put to accused to which accused stated that there must be confusion in hearing names as accused were not present at the spot. They stated that they cannot say whether any such incident took place or not as they were not FIR No: 188/2019, PS: NFC Case Registration No. 40/2020 State Vs. Modh. Yashir @ danny page no. 7....of 11 there. They stated that they have been falsely implicated in present case by police officials. They stated that they never given supplementary statement to police. They stated that it is a false case. They stated that they are innocent and falsely implicate in this case.
19. I have heard final arguments addressed by respective counsels and perused the record.
20. On 28.09.2022, counsels for accused submitted that all public witnesses in the case have been examined by State who have not supported case of prosecution. They submitted that witnesses who remain to be examined are formal / official witnesses only and their examination shall not help prosecution in any way to prove its case against accused. They submitted that examination of remaining witnesses shall be nothing but wastage of precious time of the Court and requested for closure of prosecution evidence.
21. Ld. Addl. PP for State on inquiry did not dispute factual position as submitted by defence counsels but requested that State be permitted to examine remaining witnesses. In view of submissions made by defence counsels and factual position being admitted by State, request of State was turned down and PE was closed.
FIR No: 188/2019, PS: NFC Case Registration No. 40/2020 State Vs. Modh. Yashir @ danny page no. 8....of 11
22. PW2 Hasmuddin is the star witness of prosecution being complainant and sole eye witness. He in his examination in chief deposed that he came to know name of other assailants alongwith Zeeshan and Yashir. He deposed that he cannot identify accused Zeeshan and Yashir who caused injury to him. Ld. Addl. PP for State cross examined him on point of identity of accused persons but witness in his cross examination failed to identify accused persons Zeeshan and Yashir @ Danny present in the court as assailants. CCTV Footage was also played in his cross examination by state but even after seeing the same the witness could not identify assailants and stated that their faces are not clear in the visuals. He in his cross examination by defence counsels admitted that he came to know name of assailants later on from some persons.
23. PW5 Mohd. Dilshad is another material witness for prosecution who also failed to identify accused persons before court. He in his crossexamination by defence admitted that he reached at the spot after hearing noise of quarrel and that incident had not taken place in his presence. He admitted that Police did not record his statement either at the spot or at hospital.
24. PW2/ Complainant was the most material witness for FIR No: 188/2019, PS: NFC Case Registration No. 40/2020 State Vs. Modh. Yashir @ danny page no. 9....of 11 prosecution to prove its case against accused persons but he failed to identify accused persons before court even after playing of CCTV Footage and stated that he cannot identify assailants from CCTV Footage as their faces are not clear in the visuals.
25. PW5 Mohd. Dilshad admittedly as per his cross examination did not witness the incident and reached at the spot after hearing noise of quarrel. He also failed to identify accused persons before court.
26. Though, prosecution has examined PW3 Raj Kishor Yadav as PW3 who was Security Officer at Holy Family Hospital and exhibited CCTV Footage in pen drive vide Ex. P1 but he also did not identify accused persons on basis of CCTV Footage. Further, PW2 Hasmuddin in his crossexamination by State has stated that he cannot identify assailants from CCTV Footage as their faces are not clear in the visuals. No suggestion has been given to PW2 that faces of assailants are clear in the visuals.
27. In view of evidence as discussed in preceding paras which has come on record, I am of the view that prosecution has failed to discharge its burden and has failed to prove its case against accused persons beyond reasonable doubt and case of FIR No: 188/2019, PS: NFC Case Registration No. 40/2020 State Vs. Modh. Yashir @ danny page no. 10....of 11 prosecution thus fails against accused.
28. Accused persons in these circumstances are acquitted for commission of offence u/s. 307/34 IPC.
29. File be consigned to Record Room.
Dictated and Announced in open Court on 22.11.2022 (Sonu Agnihotri) ASJ03 (South East), Saket Courts, New Delhi FIR No: 188/2019, PS: NFC Case Registration No. 40/2020 State Vs. Modh. Yashir @ danny page no. 11....of 11