Delhi District Court
State vs Fahim & Ors. on 23 August, 2023
IN THE COURT OF SH. SACHIN SANGWAN :
ADDITIONAL SESSION JUDGE (FAST TRACK COURT - 01) :
SOUTH-EAST DISTRICT : SAKET COURTS : NEW DELHI
STATE Vs Fahim & Ors.
Case No. : 1971/2016
FIR No. : 128/2014
U/S : 307/34/174A IPC
PS : Jamia Nagar
Particulars of the case
a) Date of Offence : 18.02.2014
b) Offence complained of or proved : 307/34/174A IPC
c) Name of the complainant : Md. Rubel
d) Name of the accused No. 1 : Fahim
His parentage, Late Sh. Jahurrudin,
R/o H. No. 37, Gali No. 1,
Mehbood Nagar, New Delhi
Name of the accused No. 2 : Firoz @ Gunga @ Salim
His parentage, Sh. Ali Bakash,
R/o H. No. 13, Gali No. 1,
Mehbood Nagar, New Delhi
Name of the accused No. 3 : Rehman,
His parentage, Late Sh. Nasiruddin
R/o H. No. 13, Gali No. 1,
Mehbood Nagar, New Delhi
(proceedings against
SC No. 1971/2016
FIR No. 128/2014 State v. Fahim & Ors. Page no. 1 of 17
accused Rehman stands
abated vide order
dated 21.01.2022)
Name of the accused No. 4 : Waseem Ahmed
His parentage, Sh. Abdul Rajjak,
R/o H. No. 63, Gali No. 1,
Mehboob Nagar, New Delhi
Plea of the accused : All accused persons
pleaded not guilty
Final order : Accused No. 1, 2 & 4 are acquitted
Date of Institution : 19.06.2014
Date of Judgment reserved for orders : 05.08.2023
Date of Judgment : 23.08.2023
Ld. Additional PP for the State : Sh. Ashok Debbarma
Ld. Counsel for all accused : Sh. Hari Ram Pal
JUDGMENT
1. CHARGE-SHEET 1.1 As per charge-sheet, on 19.02.2014 DD No. 64B was received in the police station regarding a quarrel. On the said DD, SI Nirmal Kumar along with Ct. Bheem Singh went to the spot i.e., H. No. 559/4, Gali no. 6, Zakir SC No. 1971/2016 FIR No. 128/2014 State v. Fahim & Ors. Page no. 2 of 17 Nagar. On reaching there, neither the injured nor the caller was found. On inquiry, it was revealed that injured was already shifted to Holy Family Hospital. In the meantime, another DD No. 3A was received by SI Nirmal Kumar regarding one Tasleem receiving stab injury during quarrel and his admission in Holy Family Hospital vide MLC No. C-14/004266. After receiving the said DD, SI Nirmal Kumar along with Ct. Bheem Singh went to Holy Family. Therein injured was found under treatment and doctor declared him not fit for statement. SI Nirmal Kumar obtained the MLC on which various stab injuries were mentioned on the body of the injured.
1.2 One friend of Tasleem namely Rubel met SI Nirmal and his statement was recorded. He stated that he is a resident of H. No. 559/4, Zakir Nagar, Jamia Nagar, New Delhi and runs an STD shop. Today ie., on 18.02.2014, at about 11 PM, he along with his friends namely Tasleem, Mashkoor and Mohd. Nafees were sitting in his STD shop. One boy namely Fahim came there and tried to pull down the shutter of Rubel's shop on which Tasleem told Fahim that since they were sitting there so he shall not close the shutter. Fahim got angry on hearing this and started abusing Tasleem and all of them. On which, Tasleem told Fahim that there is no need to abuse them and told him to go his home and Fahim left.
After about 5-10 minutes, Fahim along with 2-3 boys came at Rubel's shop again. The said 2-3 boys caught Tasleem whereas Fahim stabbed Tasleem on his stomach and backside with knife several times. Fahim pushed SC No. 1971/2016 FIR No. 128/2014 State v. Fahim & Ors. Page no. 3 of 17 Rubel and others away and threatened that nobody shall intervene as the quarrel was between him and Tasleem. Somehow Rubel and his friends saved Tasleem from the clutches of Fahim but Tasleem got severely injured. Fahim along with said 2-3 boys fled from the spot. Rubel stated that Fahim had attacked on the Tasleem with intention to kill him and action shall be taken against him and his associates.
1.3 On the basis of statement of Rubel and the MLC of injured, SI Nirmal prepared rukka u/s 307/34 IPC and got the FIR registered. During the investigation, SI Nirmal went to the spot of incident wherein he prepared the site plan and recorded the statement of witness u/s 161 CrPC. Thereafter, SI Nirmal started searching for accused persons.
1.4 On 21.02.2014, accused Fahim and Rehman were arrested and their disclosure statement was recorded. Accused were produced before the Court and their two days police remand was obtained. During their PC remand, efforts were made to search the other co-accused persons and weapon of offence but without success. Thereafter, both of them were sent to JC. 1.5 On 28.03.2014, accused Firoz @ Gunga @ Salim was arrested after recording his disclosure statement. Thereafter, all the accused persons were sent to judicial custody.
Efforts were made to search the other accused Wasim S/o Abdul Razak but without success and even NBWs were got issued against him. Subsequent opinion was taken regarding the MLC wherein the result was found SC No. 1971/2016 FIR No. 128/2014 State v. Fahim & Ors. Page no. 4 of 17 as grievous blunt injury. Charge-sheet was filed against accused Fahim, Rehman and Firoz @ Gunga @ Salim.
1.6 Subsequently, supplementary charge-sheet was filed against accused Wasim Ahmed. As per said charge-sheet, process u/s 82/ 83 CrPC was executed against said accused and he was declared PO by Ld. MM vide order dated 05.11.2014. Thereafter, he was arrested u/s 41(1) (c) CrPC on 18.11.2014 by the police staff of PS NFC. Thereafter, he was formally arrested in the present case on 20.11.2014 and supplementary charge-sheet was filed against him.
2. CHARGE 2.1 On the basis of charge-sheet, charge u/s 307 IPC read with 34 IPC was framed against accused Fahim, Firoz @ Gunga @ Salim and Rehman to which they pleaded not guilty and claimed trial.
On the basis of supplementary charge-sheet, charge u/s 307 IPC read with 34 IPC and 174A IPC was framed against accused Waseem Ahmed to which he pleaded not guilty and claimed trial.
Accordingly, prosecution was directed to lead evidence in support of the charge-sheet.
However, during the trial, accused Rehman passed away and proceedings against him were abated on 21.01.2022. Hence, the trial was SC No. 1971/2016 FIR No. 128/2014 State v. Fahim & Ors. Page no. 5 of 17 concluded against the remaining three accused and the present judgment is against said three accused only.
3. PROSECUTION EVIDENCE 3.1 In support of its case, prosecution has examined 13 witnesses as follows:-
S. No. Name of the witness Nature of the evidence PW1 HC Ramvir Singh Duty officer PW2 HC Ram Sanehi Witness to the arrest of accused Fahim and Rehman PW3 Md. Rubel Complainant/ eyewitness PW4 Inspector Nimal IO of the case Kumar PW5 HC Hemraj Witness to the arrest of accused Fahim and Rehman PW6 Ct. Bhim Singh Witness who was along with IO at the initial stage of investigation PW7 Nafees Eyewitness PW8 Ct. Rohtash Witness to the arrest of accused Firoz PW9 Dr. Mala Saini Doctor who proved the MLC of patient Tasleem prepared by Dr. Riyaz PW10 HC Farukh Ahmed Witness to the arrest of accused Waseem PW11 SI Pankaj Gulia 2nd IO of the case PW12 ASI Ran Singh Witness who arrested accused SC No. 1971/2016 FIR No. 128/2014 State v. Fahim & Ors. Page no. 6 of 17 Waseem vide Kalandra 41.1 C CrPC PW13 Md. Tasleem Injured/ eyewitness 3.2 The prosecution has exhibited following documents/objects in support of its case:-
S. No. No. of Nature of Exhibits
Exhibits
1. Ex.PW1/A FIR
2. Ex.PW1/B Certificate u/s 65B Indian Evidence Act
regarding FIR
3. Ex.PW2/A Arrest memos of accused Fahim and
Ex.PW2/B Rahman
4. Ex.PW2/C Personal search memo of accused Fahim and
Ex.PW2/D Rahman
5. Ex.PW2/E Disclosure statements of accused Fahim and
Ex.PW2/F Rahman
6. Ex.PW3/A Statement of PW3
7. Ex.PW4/A Rukka
8. Ex.PW4/B Site plan
9. Ex.PW4/C Seizure memo of the clothes of injured in
sealed pulanda received from Holy Family
Hospital
10. Ex.PW4/D Pointing out memos of the place of incident
Ex.PW4/E prepared at the instance of accused Fahim
and Rahman
11. Ex.PW4/F Supplementary disclosure statements of
SC No. 1971/2016
FIR No. 128/2014 State v. Fahim & Ors. Page no. 7 of 17
Ex.PW4/G accused Fahim and Rahman
12. Ex.PW4/H, Arrest memo, personal search memo and
Ex.PW4/I disclosure statement of accused Firoz
Ex.PW4/J
13. Ex.PW4/K Pointing out memo of the place of incident
prepared at the instance of accused Firoz
14. Ex.PW7/A Statement of PW7 recorded u/s 161 CrPC
15. Ex.PW9/A MLC of patient Tasleem
16. Ex.PW10/A Arrest memo and disclosure statement of
Ex.PW10/B accused Wasim
17. Ex.PW11/A Application of PW11 for declaring the
accused Wasim a Proclaimed Offender
4. EXAMINATION OF ACCUSED UNDER SECTION 313
CrPC
4.1 After conclusion of prosecution evidence, the accused Fahim,
accused Firoz @ Gunga @ Salim and accused Waseem Ahmed were examined u/s 313 CrPC in which they denied all the allegations.
5. DEFENCE EVIDENCE 5.1 None of the accused persons led any defence evidence.SC No. 1971/2016
FIR No. 128/2014 State v. Fahim & Ors. Page no. 8 of 17
6. ARGUMENTS 6.1 Arguments heard on behalf of the accused as well as Ld. Additional PP for the State. Ld. Counsel for accused has submitted that there is no evidence against any of the accused since no eyewitness has deposed against any of the accused. All the eyewitnesses turned hostile to the case of prosecution and did not support the case of prosecution even in their cross-examination by the Ld. Additional PP. It is submitted that the charges on the accused persons were framed on the basis of alleged statements of eyewitnesses and there is no other circumstantial evidence i.e. recovery of weapon or any CCTV footage, etc., linking the accused to the alleged offence. Hence, all of the accused persons are entitled to be acquitted.
7. POINTS FOR DETERMINATION 7.1 I have considered the arguments of the parties and have perused the record.
7.2 The relevant provisions applicable in present case are reproduced herewith:-
Section 307 IPC provides - attempt to murder - "whoever does any act with such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty of murder, shall be punished with imprisonment of either description for a term which may SC No. 1971/2016 FIR No. 128/2014 State v. Fahim & Ors. Page no. 9 of 17 extend to ten years, and shall also be liable to fine; and if hurt is caused to any person by such act, the offender shall be liable either to imprisonment for life, or to such punishment as is hereinbefore mentioned.
Attempts by life convicts - "when any person offending under this section is under sentence of imprisonment for life, he may, if hurt is caused, be punished with death."
Section 34 IPC provides - "When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone."
Section 174A IPC provides - Non-appearance in response to a proclamation under section 82 of Act 2 of 1974 - "whoever fails to appear at the specified place and the specified time as required by a proclamation published under sub-section (1) of section 82 of the Code of Criminal Procedure, 1973 shall be punished with imprisonment for a term which may extend to three years or with fine or with both, and where a declaration has been made under sub- section (4) of that section pronouncing him as a proclaimed offender, he shall be punished with imprisonment for a term which may extend to seven years and shall also be liable to fine".
7.3 Thus, after considering the facts of the case and the arguments of the parties, following points for determination arise: -
1. Whether there is any incriminating evidence against the accused persons?SC No. 1971/2016
FIR No. 128/2014 State v. Fahim & Ors. Page no. 10 of 17
2. If so, whether such evidence is sufficient for convicting the accused for any of the alleged offences?
8. APPRECIATION OF EVIDENCE AND APPLICATION OF LAW 8.1 The prosecution has cited three eyewitnesses i.e, PW3 Mohd.
Rubel, Mohd. Naseef and PW13 Tasleem. However, none of the eyewitnesses have deposed against any of the accused persons. PW3 Mohd. Rubel has deposed in examination in chief that "I am working at an STD shop in Zakir Nagar, New Delhi since 2009. I do not remember the date of incident, however, it is two years back, I was present at my shop at around 11:00 PM. There was no light in the area. A fight broke out in front of my shop. I did not see anybody causing injury to anyone. I had seen Tasleem lying on the road in injured condition. He was removed to Holy Family Hospital by some nearby people. I did not tell the police regarding injuries caused to Tasleem in my presence. However, my signatures were obtained on a paper." During his cross- examination by Ld. Additional PP, he has denied that he had told the police about the role of Fahim and his associates in causing injuries to Tasleem by the knife. Though, he identified his signatures on Ex.PW3/A i.e. the complaint on the basis of which the FIR was registered, however, he has stated that the content of the statement was not read over to him by the police officer. He has SC No. 1971/2016 FIR No. 128/2014 State v. Fahim & Ors. Page no. 11 of 17 even deposed that he do not know how to read Hindi though he has studied upto 8th class only. He has deposed that he is conversant with Bangla Language only. He has denied having signed the arrest memo of accused Fahim Ex.PW2/A and arrest memo of Rehman Ex.PW2/B. Nothing concrete has come in the cross-examination of said witness to safely conclude that he has deposed falsely or that he knows Hindi Language and he signed the complaint Ex.PW3/A after reading the same. His signatures on the same are in English. Further, his signatures on Ex.PW2/A and Ex.PW2/B appear to be more continuous and with confident strokes whereas the signatures appended on complaint Ex.PW3/A appear to be of a person who has signed with some hesitation. Said signatures appear to be of a person who is not much literate and signs rarely. Hence, the explanation given by said witness regarding lack of his knowledge about Hindi Language and denial of his signatures cannot be ruled out entirely.
8.2 Further, PW13 Tasleem has deposed in examination in chief that "I do the work of whitewash. On 18.02.2014, at about 11 PM, I along with my friend Rubale, Md. Nabis and Babloo were present at the STD shop of Rubale. Suddenly, one Fahim came to the shop and started misbehaving with Rubale. I scolded Fahim and he went away from the shop. After sometime, 3-4 boys came to the shop and stabbed me on my stomach as well as on my back. I fell down and became unconscious. I could not see face of those persons as it was dark. My friend Rubale told me that it was Fahim who stabbed me. Rubale took me to SC No. 1971/2016 FIR No. 128/2014 State v. Fahim & Ors. Page no. 12 of 17 the hospital. I do not remember anything else." During his cross-examination by the Ld. Additional PP, he has admitted that he knew the accused Firoz, Wasim and Rehman (since deceased) prior to the incident. He also admitted that quarrel took place at the STD shop of Rubel between him and Fahim. However, he denied that the accused persons Firoz, Wasim and Rehman (since deceased) caught hold of him and Fahim stabbed on his stomach and on his backside. Rather, he has deposed that he do not know who stabbed him. He denied that there was street light at the spot, though, he admitted that there was a street bulb in front of the STD shop of Rubel. He also denied that t-shirt produced by the MHC(M) was his T-shirt. Rather, he deposed that he was wearing shirt and jacket at the time of incident.
No source of light has shown in the site plan Ex.PW4/B prepared by the IO. Admittedly, the incident happened during night hours. Thus, considering the said circumstances, nothing substantial has come in the cross- examination of the said witness also to safely conclude that he was attacked by the accused persons only.
8.3 The 3rd eyewitness ie., PW7 Nafees has deposed in his examination in chief that "I do not remember the date however the incident is about two years old, I was present in my house in the night and I had come out of the house hearing commotion. I saw Tasleem lying injured in his STD shop near the shutter of shop. I took him in a TSR to Holy Family Hospital and Tasleem was admitted there for his treatment. I do not know accused persons present in the SC No. 1971/2016 FIR No. 128/2014 State v. Fahim & Ors. Page no. 13 of 17 Court today. I had not seen them in the street in the said night". He was cross- examined by Ld. Additional PP but he has not supported the case of prosecution even in his cross-examination. Nothing concrete has come in his cross- examination to safely conclude that the offence was committed by the accused persons only.
8.4 As per the complaint Ex.PW3/A, one Mashkoor was also present along with injured and the complainant at the time of incident. However, no such witness was cited in the charge-sheet. The said fact was noted by the present Court at the stage of final arguments and thereupon, notices were issued to the IO/ SHO/ ACP who had forwarded the charge-sheet to the Court. The IO / SI Nirmal stated that inadvertently he failed to examine said witness. Even the then ACP expressed his regret regarding the lapse in the investigation and forwarding the charge-sheet without noticing the same. Time was sought by the SHO/ ATO to file supplementary charge-sheet qua the statement of said witness. However, despite repeated opportunities they failed to trace out said witness and finally it was reported on 05.06.2023 that said witness is not traceable despite due efforts. Hence, prosecution failed to trace/ examine the said eyewitness of the incident.
8.5 Thus, prosecution has failed to prove the offence u/s 307/34 IPC against any of the accused. However, accused Wasim Ahmed has been charged for the offence u/s 174A IPC also. PW11 SI Pankaj Gulia has deposed that he had moved application Ex.PW11/A before the concerned Ld. MM for declaring SC No. 1971/2016 FIR No. 128/2014 State v. Fahim & Ors. Page no. 14 of 17 accused Wasim as Proclaimed Offender since he was not traceable even after proclamation u/s 82 CrPC and that accused Wasim was declared PO by the Court on 05.11.2014.
It is to be noted PW11 has deposed in his cross-examination that he never visited the address of accused Wasim for arresting him. He has deposed that the process u/s 82 and 83 CrPC were already submitted in the Court when the investigation was assigned to him. As per him, the process u/s 82 and 83 CrPC were executed through HC Jagpal. However, said process server has not been cited as a prosecution witness. Hence, prosecution has failed to examine any witness to prove the execution of the process u/s 82 CrPC. Moreover, in the absence of examination of the process server, no opportunity was available to the accused Wasim to question him regarding the date, time, mode and manner of execution of the process. Though, Section 82 (3) CrPC provides for a presumption/ conclusive proof regarding the due execution of the process u/s 82 CrPC, however, it is to be seen whether such conclusive proof is applicable in the present case.
As per Section 82 (2) CrPC "The proclamation shall be published as follows:-
(a) it shall be publicly read in some conspicuous place of the town or village in which such person ordinarily resides;
(b) it shall be affixed to some conspicuous part of the house of homestead in which such person ordinarily resides or to some conspicuous place SC No. 1971/2016 FIR No. 128/2014 State v. Fahim & Ors. Page no. 15 of 17 of such town or village;
(c) a copy thereof shall be affixed to some conspicuous part of the Court-house;
(ii) the Court may also, if it thinks fit, direct a copy of the proclamation to be published in a daily newspaper circulating in the place in which such person ordinarily resides."
Further, 82 (3) CrPC provides that :- "A statement in writing by the Court issuing the proclamation to the effect that the proclamation was duly published on a specified day, in the manner specified in clause (i) of sub-Section (2), shall be conclusive evidence that the requirements of this Section have been complied with, and that the proclamation was published on such day."
Coming to the facts of the present case, the order dated 05.11.2014 of the Ld. MM is being reproduced herewith. It reads as " IO moved an application for declaring Wasim S/o Sh. Abdul Razak proclaimed offender. Statement of process server HC Jagpal Singh who executed the process u/s 82 & 83 CrPC against the accused, recorded. In view of same, accused Wasim S/o Abdul Razak is declared proclaimed offender." It may be noted that it is not specifically mentioned in the said order that the proclamation was duly published on a "specified date " and in the manner "specified in Clause (i) of Sub Section 2 ". The penal laws have to be interpreted strictly, more so, when a conclusive proof has to be read against accused, on the basis of such declaration by the Court. Therefore, the statement in writing by the Court does not fulfill the SC No. 1971/2016 FIR No. 128/2014 State v. Fahim & Ors. Page no. 16 of 17 requirements envisaged u/s 82 (3) CrPC. Thus, the only evidence regarding execution of the process u/s 82 CrPC is the Court order but same falls short of rigors of Section 82 (3) CrPC. In the given the circumstances, the prosecution has failed to prove the offence u/s 174A IPC against the accused Wasim.
9. CONCLUSION 9.1 In view of above said discussion, prosecution has failed to prove any of the alleged offence charged against the accused Fahim, accused Firoz @ Gunga @ Salim and accused Waseem Ahmed. Hence, they are acquitted of all the charges.
(Announced in the Open Court Digitally signed
by SACHIN
SACHIN
on 23 rd August 2023) SANGWAN
SANGWAN Date: 2023.08.23
14:15:00 +0530
(SACHIN SANGWAN)
Additional Sessions Judge, (FTC)-01,
South-East District, Saket Courts,
New Delhi/23.08.2023
SC No. 1971/2016
FIR No. 128/2014 State v. Fahim & Ors. Page no. 17 of 17