Delhi District Court
State vs Mohd. Niyaz Ahmed @ Kalu on 27 August, 2011
IN THE COURT OF SH. AJAY KUMAR JAIN, LD. ADDL.SESSIONS
JUDGE03, SE: NEW DELHI
Sessions Case No. 79/10
State Vs Mohd. Niyaz Ahmed @ Kalu
S/o Mohd. Mastkin
R/o H. No. 26, Shera Mohalla, Garhi,
East of Kailash, New Delhi.
(In judicial custody)
FIR No : 340/10
P.S. : Amar Colony
U/s. : 394/397/382/326 IPC
DATE OF INSTITUTION : 29.09.2010
JUDGMENT RESERVED ON : 25.08.2011
DATE OF DECISION : 27.08.2011
JUDGMENT:
1. On receiving DD no. 25 A dated 12/13.07.2010 regarding information of hospitalization of injured Rohit at Safdarjung hospital at around 12.20 am, HC Praveen Kumar alongwith Ct. Babu Lal left for hospital and on reaching there doctor declared him unfit for statement. At about 8 am in the morning injured was found fit for statement, thereafter, his statement was recorded by HC Praveen Kumar.
State Vs. Mohd. Niaz etc., SC No. 79/10( pg- 1 )
2. Injured Rohit alleged in his statement that at around 10 pm on 12.07.2010, after completing his duty he was going back to his house and when he reached near HDFC Bank ATM, Dayanand colony, one Kalu who used to reside in village Garhi obstructed him and taken out Rs. 200/ from his pocket. When he caught hold of him while trying to leave, he hit him with some sharp object on his back. Thereafter, he fell down and Kalu ran away from the spot. In the meanwhile, his father came and took him to hospital. Pursuant to his statement, FIR was registered at 9.15 am.
3. During investigation, accused Kalu was arrested on the basis of secret information and further his disclosure statement was recorded pursuant to which one weapon of offence i.e, knife was recovered from MCD kudedan, bus stand Garhi. Further during investigation, the statement of witnesses were recorded and after completion of investigation, charge sheet was filed.
4. On committal, charges were framed u/s 392/397 IPC against the accused to which he pleaded not guilty.
5. Prosecution for substantiating charge examined 13 witnesses. Material witnesses are PW2 Injured Rohit Kumar and PW3 Anand father of injured. Other witnesses are doctors and police officials. Summary details of deposition of witnesses is as follows.
State Vs. Mohd. Niaz etc., SC No. 79/10( pg- 2 ) Deposition of PW2 Rohit Kumar injured and PW3 Anand Kumar, father of the injured:
6. PW2 Rohit Kumar deposed that he was working at his shop in Central market and at about 10 pm on 12.07.2010 when he was going back to his house, he found accused Mohd. Niaz @ Kalu standing near HDFC ATM at Dayanand Colony whom he knew before who snatched Rs.200/ from his left side pocket of pant, when he resisted, accused forcefully taken out Rs. 200/ and hit him with knife at left and right side of his waist. He further deposed that after stabbing he fled away from spot. In the meanwhile lot of people gathered. His father also arrived at spot who had taken him to Safdarjung hospital. Further police had recorded his statement in the morning and seized his blood stained clothes.
7. In cross examination, he deposed that he knew accused Kalu because he has earlier seen him roaming in locality and got to know him 34 days prior to incident. He further deposed that he was made known the name of the accused when he was admitted in the hospital. He further deposed that he did not know the name of the accused when he was stabbed. He further deposed that police persons have told the name of accused and shown him his photographs. He further deposed that the police had not come in the night but came in the morning at around 9 am with photographs of the accused. He further deposed that when accused snatched the money, he raised noise but nobody came and accused hit him on his back. He further denied suggestion that his sister and accused State Vs. Mohd. Niaz etc., SC No. 79/10( pg- 3 ) were friends and therefore, he was having enmity with him. He further denied that he was accompanied with one of his friends namely Vicky at the time of incident. He further deposed that his father came at spot when he called him through some person present at the spot after 2025 minutes of call.
8. PW3 Anand Singh, father of injured Rohit PW2 deposed that on 12.07.2010 when he was walking at Dayanand colony, opposite ATM he saw 89 people gathered near ATM and further seen his son lying in injured condition and immediately took him to hospital and on inquiry he told that one Kalu had snatched money from him and caused injuries with knife. Thereafter, police came in hospital and recorded statement of his son and himself next day. In cross examination, he deposed that he had not received any call from his son Rohit and was roaming at nearby place of the incident at that time and his son was in semi conscious condition who told him that Kalu has inflicted the injuries on him. He further deposed that police had come in the night but had not made inquiry from his son but only from him. He further deposed that he had seen accused two times before in Garhi. He further denied the suggestion that his son had not disclosed the name of accused when he took him to hospital and also denied suggestion that his daughter and accused were friends because of which the accused is falsely implicated in the present case.
Deposition of doctors:
State Vs. Mohd. Niaz etc., SC No. 79/10( pg- 4 )
9. PW10 Dr. Vijay Kumar deposed on behalf of Dr. Arun and stated that he had seen the MLC Ex.PW10/A and as per MLC, injury no.3 CLW present inferior to right stapula plural part seen and same is grievous injury. And further examined for subsequent opinion Ex.PW13/E and opined that injury is possible with the knife shown.
Deposition of police officials:
10. PW1 WHC Fukeria, duty officer who recorded FIR on 13.07.2010 at about 9.15 am. PW4 Ct. Babu Lal on eceiving DD no. 25 A went to Safdarjung hospital alongwith HC Praveen Kumar and found injured unfit for statement. Thereafter, in the morning at around 8 am injured was declared fit for statement whose statement was recorded by HC Praveen. In cross examination, he deposed that at first time he remained in hospital for 2025 minutes and injured father met him in hospital but did not tell anything about the incident. PW5 Ct. Naresh deposed that on 14.07.2010 on the pointation of secret informer, accused was arrested near Aastha Kunj Park and his disclosure statement was recorded pursuant to which accused led them to Capt. Gaur Marg near wall of MCD khatta and took out a chura which was lying under a stone. In cross examination he deposed that they left PS at around 7 am but cannot tell the DD no. and reached Iskon temple at 7.30 am. And as soon as secret informer told about the presence of accused persons, they reached Aastha State Vs. Mohd. Niaz etc., SC No. 79/10( pg- 5 ) Kunj within 5 minutes and arrested the accused. Further deposed that MCD khatta was around 1 ½ kms to said park. He further deposed that he do not know whether the site plan of recovery of knife was prepared or not.
11. PW6 HC Pradeep Singh , MHC(M) deposed that on 14.07.2010 HC Praveen had deposited two sealed pulandas containing knife and shirt. In cross examination he deposed that two pulandas were deposited in malkhana at around 10 am on 14.07.2010. PW7 Ct. Shankar Lal deposed that on 12.07.2010 he accompanied complainant and doctor handed over sealed parcel containing blood sample and came back to PS and handed over the same to HC Praveen Kumar.
12. PW8 Ct. Vinod Kumar deposed that on 14.07.2010 he went to Safdarjung hospital with HC Praveen Kumar where injured handed over his blood stained shirt which he gave to HC Praveen who packed the same in parcel with the seal of PK. In cross examination he deposed that he went to hospital at around 5 pm but he do not remember the DD entry.
Also deposed that injured was wearing shirt and handed over the same after taking out from his body.
13. PW9 ASI Bua Lal deposed that he was handed over the investigation on 13.04.2010 and had during the course of investigation recorded the statement of Ct. Babu Lal and Anant Singh at his house and thereafter, State Vs. Mohd. Niaz etc., SC No. 79/10( pg- 6 ) tried to search the accused but could not find him on that day and further handed over the investigation to HC Praveen Kumar. In cross examination deposed that he do not remember to whom he inquired about the accused. PW11 Ct. Surender Kumar deposited three sealed parcels at FSL on 27.08.2010. PW12 HC Ram Dev Singh recorded the DD no. 25A on the night of 12/13.07.2010 on receipt of information from duty constable Surender from Safdarjung Hospital.
14. PW13 HC Praveen, Investigating Officer deposed that on receiving DD no. 25A, he alongwith Ct. Babu Lal reached at Safdarjung Hospital and found injured Rohit unfit for statement thereafter came back to police station and later on in the morning doctor declared him fit for statement. Thereafter, recorded the statement of injured Rohit pursuant to which FIR was recorded. Investigation of this case was handed over to him on 14.07.2010 and he alongwith Ct. Naresh went in search of accused Kalu in Garhi area. When they reached near ISKCON temple at around 8.00 a.m. met secret informer who told that accused wanted in this case is lying under a tree in Astha Kunj park and on the pointing of secret informer accused was arrested. His disclosure statement was recorded, pursuant to which chhura was recovered from near a dustbin from Capt. Gaur Marg, which was seized and its sketch was prepared. On 22.07.2010, at the instance of complainant Rohit site plan of the spot was prepared.
State Vs. Mohd. Niaz etc., SC No. 79/10( pg- 7 )
15. In cross examination he deposed that he cannot tell the DD number by which he left the police station on 14.07.2010 and further deposed that the Astha Kunj park spread in 23 km area and place of recovery of knife was assessable to general public and no site plan of recovery of knife was prepared. Further no blood was seen on the knife and he reached back to police station at around 12.30 p.m. He further deposed that MLC record prepared by doctor is not is on file and denied the suggestion that no knife was recovered from his instance.
Material Exhibits
16. Ex. PW12/A is DD no. 25A received at around 12.20 a.m. on the night of 12/13.07.2010 from the Safdarjung hospital regarding hospitalization of injured Rohit. Ex. PW2/A is the statement of injured recorded by the IO pursuant to which rukka was prepared vide Ex. PW1/B. Thereafter the FIR was registered vide Ex. PW1/A. Ex. PW13/C is the site plan of the spot.
17. Ex. PW5/B is arrest memo of accused from Astha Kunj Park at around 8.35 a.m. Ex. PW5/A is statement of the accused and Ex. PW5/E is the seizure memo of knife and pointation memo. Ex. PW5/D is the sketch of the knife. Ex. PW10/A is MLC of injured Rohit showing grievous stab injuries.
State Vs. Mohd. Niaz etc., SC No. 79/10( pg- 8 )
18. Accused denied all the incriminating circumstances put to him u/s. 313 Cr.P.C. and not opted to lead defence evidence.
19. Ld. counsel for the accused submitted that the accused is falsely implicated in the present case which is clear from the statement of PW2 injured Rohit, who in cross examination stated that he came to know about the name of the accused in the hospital as told by the police and police also shown his photograph. Ld. Counsel for the accused further submitted that in contradiction to this statement of PW2, PW3 father of the injured stated that the name of the accused was told by the injured Rohit while he was taking him to hospital. Both the versions are irreconcilable and contradictory. Ld. Counsel for the accused further submitted that in MLC there is no name of accused person is mentioned nor it is stated that some robbery took place. Ld. Counsel for the accused further submitted that entire circumstance of arrest and recovery of knife is false and fabricated and cannot be relied upon. Hence, prayed for acquittal of accused.
20. Ld. Addl. P.P. on the other hand submitted that both injured and his father had named the accused in their deposition and MLC clearly suggests infliction of grevious injuries on the person of PW2 and the version of PW2 found corroboration with the circumstance of recovery of knife at the instance of accused, therefore, prosecution is able to prove its case beyond reasonable doubt and accused is liable to be convicted for commission of offence u/s. 392/397 IPC.
State Vs. Mohd. Niaz etc., SC No. 79/10( pg- 9 )
21. Arguments heard. Record perused.
22. According to prosecution story at around 10 pm on 12.07.2010 when PW2 injured Rohit Kumar coming back from his shop to his home, accused Mohd. Niaz on the way near HDFC ATM at Dayanand Colony snatched Rs.200/ from his left side pocket and on his resistance inflicted knife blow at the left and right side of his waist and thereafter fled away. In the meanwhile, his father came and taken him to hospital and as per MLC Ex. PW10/A he was brought to hospital at around 11.35 p.m. in the hospital by his father and he was conscious and oriented at the time of admission. According to this MLC at around 3 am the patient was not found fit for statement and again declared fit for statement at around 8 am.
23. The police was informed about the incident from the hospital at around 12.20 am in the night and pursuant to which the police reached hospital and found the injured unfit for statement thereafter, again went to hospital at around 8 am and recorded the statement of the injured who stated that he was hit by one Kalu who used to roam in the village Garhi. Lateron to which accused was arrested on 14.07.2010.
24. Injured Rohit was examined as PW2. In cross examination, he deposed that he came to know the name of the accused in the hospital and the police persons told the name of accused to him and also shown him the State Vs. Mohd. Niaz etc., SC No. 79/10( pg- 10 ) photographs. He further deposed that police had come in the morning alongwith photographs of the accused. PW3 Anand Singh father of the injured stated that when he reached the place of incident his son told him that Kalu has inflicted injury to him and further deposed in cross examination that police met him in the night but had not made any inquiries from him. PW4 Ct. Babu Lal who accompanied the investigating officer to hospital stated in cross examination that they remained in hospital in 2025 minutes when they first reached hospital met the father of the injured but he did not tell anything about the incident.
25. The statement of all these 3 witnesses PW2, PW3 and PW4 had given different pictures how they came to know about the name of accused Kalu. PW2 injured stated that the name of the accused was told by the police in the morning when his statement was recorded and was also shown in photograph. Whereas PW3 Anand Singh father of injured stated that injured told him the name of the accused Kalu when he was taking him to the hospital and further PW4 Ct. Babu Lal in cross examination stated that father of injured had not told anything about the incident when they met him in the hospital. This creates suspicion on the fact that how the name of the accused came on surface in prosecution story.
26. According to police when they first reached the hospital injured was unfit for statement and as per statement of PW4 Ct. Babu Lal they met the State Vs. Mohd. Niaz etc., SC No. 79/10( pg- 11 ) father of the injured in the hospital but he did not tell anything about the incident. Whereas the father of the injured told that police had come in the night and had made inquiries from him. If the police had made inquiries from him then why his statement was not recorded because he knows the name of accused in the night itself as told to him by his injured son on the way. Therefore, nonrecording of FIR on the statement of PW3 father of PW2 creates doubt over the prosecution version. Further deposition of PW2 and PW3 are also inconsistent as injured PW2 stated that he got to know the name of accused Kalu by police in morning whereas PW3 his father told he got to know his name by PW2 when he was taking him to hospital on night.
27. Injured Rohit Kumar, PW2 stated that he had seen the accused 34 times prior to incident roaming in locality and further PW3 Anand Singh also stated that he had seen accused 23 times before the incident. Injuries as stated by the injured inflicted near some HDFC ATM at Dayanand colony and at the spot after incident number of people gathered but police had not tried to investigate from anybody at the spot regarding the incident. No independent witness was ever joined in the investigation. The injured PW2 Rohit Kumar stated in cross examination that he called his father through some person present at the spot but no such person was named or examined by the police whereas PW3 his father Anand Singh in cross examination stated that while he was roaming in the area he saw 89 people gathered on the road near ATM and there he saw his son lying in injured condition. This witness had not stated that he came State Vs. Mohd. Niaz etc., SC No. 79/10( pg- 12 ) to the spot on calling by his son. These omissions and inconsistency makes the version of these witnesses unreliable.
28. PW3 had brought the injured to the hospital and even in the MLC there is only written history of assault but neither it mentions the name of assailant nor any incident of robbery. PW2 injured in FIR had not stated that he was inflicted injury from the knife but only stated some sharp object, thereafter, also he remained conscious. Therefore it cannot be said that the incident was so sudden that the injured was not in a position to see how the accused had inflicted injuries. Therefore, in deposition before the court mentioning of knife by PW2 appears to be some sort of improvement. It was also suggested to PW2 and PW3 that he was falsely implicated because he knew the sister of the accused though these are denied by these witnesses.
29. Circumstance of arrest: PW13 HC Praveen stated that on 14.07.2010 he alongwith Ct. Naresh went in search of accused Kalu in Garhi area and at about 8 am they met a secret informer who informed that accused is lying under a tree in Astha Kumj Park and on pointation of secret informer, accused was arrested who was lying under the tree and thereafter, his disclosure was recorded and at his instance the weapon of offence i.e, chura was recovered near the dustbin where he hided the same. PW5 Ct. Naresh kumar also stated that he alongwith HC Praveen Kumar went in the search of accused and met secret informer near ISKCON temple and who taken them to Astha Kunj park where the accused was arrested.
State Vs. Mohd. Niaz etc., SC No. 79/10( pg- 13 ) These PWs could not tell by which DD number they made departure from PS nor any DD entries are brought on record to show that they went in search of accused on said day nor anything placed on record on their arrival that they met secret informer near ISKCON temple. It is unlikely that without any secret information received at PS that police officials will leave PS for apprehending accused. Further it is also most unlikely that accused will be found lying under a tree in Astha Kunj park at around 8 pm in the manner suggested by PW13 whereas even PW5 had not stated so. No public witness was joined either at the time of arrest of accused though they were present in the park nor at the time of recovery of knife. The circumstance of arrest of accused and recovery of knife appears to be all farce.
30. Police met PW3 in hospital but not recorded his statement nor PW3 was taken to spot to ascertain whether any blood was there at the spot and site plan was prepared belatedly on 22.07.2010 This created doubt over the factum of place of occurrence.
31. There is apparent doubt over the identity of accused because PW2 stated in cross examination that he came to know the name of the accused in by police whereas PW3 his father stated that his name was told by injured when he was taking him to hospital and on the other hand the police official stated that they got to know the name of accused through PW2 when they recorded his statement. These circumstances coupled with the delay in recording the FIR despite availability of the father of the injured State Vs. Mohd. Niaz etc., SC No. 79/10( pg- 14 ) in the hospital. Further statement of injured PW2 and PW3 are inconsistent on material points and no independent person was joined in entire proceedings.
32. On over all consideration of facts and circumstances, prosecution failed to prove its case beyond any reasonable doubt, thus, accused is granted benefit of doubt and acquitted of charge u/s 392/397 IPC. Accused is further directed to furnish personal bond in sum of Rs. 10,000/ and one surety in the like amount in terms of section 437A Cr.P.C.
Announced in Open Court
On 27th August, 2011 (Ajay Kumar Jain)
Additional Sessions Judge03,
South East District, New Delhi
State Vs. Mohd. Niaz etc., SC No. 79/10( pg- 15 )