Delhi District Court
Fir No. 64/07; State vs . Kamruddin Page 1 Of 12 on 4 June, 2013
IN THE COURT OF SH. YASHWANT KUMAR : ADDL. SESSIONS
JUDGE03:NW:ROHINI:DELHI
SESSIONS CASE NO. 69/13
FIR No. 64/07
P.S. Aman Vihar
U/S: 307/34 IPC
STATE
Versus
KAMRUDDIN
s/o Yusuf Ali,
r/o B1/140,
Aman Vihar, Delhi
Date of Institution: 28022008
Date of arguments: 04062013
Date of judgement: 04062013
JUDGMENT
1. The case of the Prosecution, in brief, is that on 16102007 on receipt of DD no. 50B in PS Aman Vihar, SI Mahender Pratap along with Ct. Karam Singh reached SGM Hospital, Mangolpuri and one Jai Bhagwan was found admitted in the hospital vide MLC no. 15672 with alleged history of stab injury at epigastric region. Injured Jai Bhagwan gave statement to the police that he was living at D122, Hari Enclave, Ph I, Kirari village in Delhi and permanent resident of Faridabad, Haryana and FIR No. 64/07; State Vs. Kamruddin Page 1 of 12 doing work of mason in Delhi. On 16102007 at about 8:15 pm, he was coming back to his house after eating and finishing his work. When he reached near the house of Satbir, three boys stopped him and started abusing him without any cause. At that time, Saeed, known to complainant and with whom he had a quarrel one month back over the issue of eating, was also present there. When complainant resisted, two boys caught hold of complainant from both sides and the third boy took out a knife from the pocket of his pant and attacked on the stomach of complainant. Complainant stopped the first attack with his right hand and thereafter, that boy freed the knife from the hand of complainant and then stabbed in the stomach of complainant. Due to the stabbing, complainant received injuries in his right hand palm and stomach and he fell there. Complainant was shifted to hospital by his brother. The complainant raised suspicion over Saeed for this attack through those three boys. FIR u/s 307/34 IPC was registered. On 02122007, on the information of informer, accused Kamruddin was arrested on the identification of complainant. Accused Kamruddin gave disclosure statement that he along with his two associates namely Bittoo and Ramesh committed the crime in Hari Enclave. Kamruddin was having knife of Ramesh and Ramesh and Bittoo caught hold of that person and Kamruddin stabbed the complainant with knife. Accused Kamruddin also disclosed that after the crime, he returned back the knife to Ramesh. Ramesh and Bittoo were FIR No. 64/07; State Vs. Kamruddin Page 2 of 12 residing somewhere near Central Park but he was not aware about their exact address. After completion of investigation, chargesheet was filed against accused Kamruddin u/s 307/34 IPC.
2. After compliance of Section 207 Cr.P.C., the case was committed to Sessions Court. Charge under Section 307/34 IPC was framed against accused Kamruddin to which he pleaded not guilty and claimed trial.
3. In order to prove its case, Prosecution examined nine witnesses. Statement of accused was recorded u/s 313 Cr.P.C. therein he denied all the allegations made against him. Accused opted not to lead defence evidence.
4. I have heard Ld. Amicus Curiae and Ld. APP for State and have perused the entire records.
5. Ld. Amicus Curiae for accused argued that accused has been falsely implicated in this case. PW1 is the hearsay witness. The victim/ complainant who has been examined as PW2, suspected Saeed but no investigation was made by the IO from him. PW2 did not give any description of the knife. Weapon of offence i.e. knife has not been recovered. PW2 could not tell the name of person where he was working. FIR was registered on the same day of incident but arrest of the accused is after two months of the incident. No independent public witness was joined in the investigation as well as at the time of arrest and personal FIR No. 64/07; State Vs. Kamruddin Page 3 of 12 search of the accused. There are major contradictions in the testimonies of PWs. The IO has not conducted the investigation fairly and the investigation is defective.
6. Ld. APP for State argued that the accused along with his two associates (not arrested) gave knife blows in the stomach of complainant. As per the MLC, the injury sustained by the complainant was grievous. The complainant identified the accused. If there are some contradictions in the testimonies of PWs, the same are minor contradictions which do not go to the root of the case and the accused cannot take benefit of such minor contradictions. Public witnesses are reluctant to become witnesses of criminal cases. Therefore, no benefit can be given to the accused for not joining independent witnesses. If the investigation is defective or faulty, the accused cannot be acquitted solely on this ground.
7. In view of the above arguments of the Ld. Amicus Curiae and the Ld. APP for the State, let us examine the evidence led in this case as to whether the accused had committed the offence or whether he has been falsely implicated. PW1 Jagdish @ Jaggi stated in his examination inchief that he works in a shop at Rampura. On 16102007 at about 8:30 pm, he was present in his house after finishing his duty. Some boys from the neighbour came and informed him that someone had caused injuries to his brother Jai Bhagwan on the corner of the gali. PW1 along with his sisterinlaw took Jai Bhagwan to SGM hospital where police FIR No. 64/07; State Vs. Kamruddin Page 4 of 12 recorded statement of his brother. They came back at the spot and police interrogated them and did some writing work in his presence.
8. PW2 Jai Bhagwan stated in his examinationinchief that he works as a mason. On 16102007 at about 8:15 pm, he was going towards his house after completing the work and having the dinner. When PW2 reached near the house of Satbir, he was stopped by three boys who were standing there and they started abusing him without any reason. When PW2 objected, two of them caught hold of him from his hand and the third boy took out a knife and stabbed in his stomach. In the process of saving himself, PW2 sustained injury on his right hand. The accused gave two knife blows in his stomach. PW2 suspected Saeed who runs a shop in the locality and who was present in the shop on the day of incident when the three boys unnecessarily took up quarrel with him and gave him knife blows. PW2 fell down and he was taken to the hospital by his brother where police recorded his statement vide Ex. PW2/A. On 09122007, PW2 along with police staff reached at Lakhi Ram Park bus stand. At about 8:30 / 8:45 pm, accused (correctly identified) was apprehended by the police whom PW2 identified as the boy who had inflicted knife injury in his stomach. Accused was arrested vide arrest memo Ex. PW2/B and his personal search was conducted vide memo Ex. PW2/C. Accused made disclosure statement vide Ex. PW2/D and pointed out the place of incident vide pointing out memo Ex. PW2/E. FIR No. 64/07; State Vs. Kamruddin Page 5 of 12
9. PW3 Ct. Rajeev Kumar stated in his examinationinchief that on 09122007, he along with complainant Jai Bhagwan and IO reached at bus stop of Lakhi Ram Park, Ramesh Enclave as per information and started waiting for accused. At about 8:40 pm, one boy of heavy built aged about 22 years came towards the road from the side of flats of Sector22, Rohini, Delhi and reached at bus stand. The secret informer pointed out towards that boy who was also identified by the complainant. Complainant told the IO that he was the same boy who had inflicted injury in his stomach along with his two coaccused. Accused was arrested vide arrest memo Ex. PW2/B and his personal search was conducted vide memo Ex. PW2/C. Disclosure statement Ex. PW2/D and pointing out memo Ex. PW2/E of accused Kamruddin was recorded.
10. PW4 HC Gian Chand is the Duty Officer and he stated that on 16102007 he received rukka Ex. PW2/A on the basis of which he recorded the FIR Ex. PW4/A. PW5 Ct. Karam Singh stated that on 16102007, he was posted at PS Aman Vihar and at about 9:30 pm, he received a call vide DD no. 50B and he along with IO reached at SGM hospital where IO obtained the MLC of injured Jai Bhagwan and recorded his statement. IO prepared the rukka and got the FIR registered through PW5. PW6 Ct. Nagender Singh stated that on 16102007, he was working as DD Writer at PS Aman Vihar and at about 9:15 pm, Ct. Pawan Kumar informed through telephone from SGM Hospital regarding FIR No. 64/07; State Vs. Kamruddin Page 6 of 12 admission of one injured Jai Bhagwan in the hospital. In this regard, PW6 recorded DD no. 50B vide Ex. PW6/A and handed over the same to Ct. Karam Singh and SI Mahender Pratap. PW7 Dr. V. K. Jha, Medical Officer, BJRM hospital gave opinion about the nature of injury as grievous on the MLC Ex. PW7/A of injured Jai Bhagwan on the basis of clinical record. PW8 Dr. Vishnu, SR (Surgery) SGM Hospital identified the handwriting and signatures of Dr. Samad on the MLC Ex. PW7/A.
11. PW9 SI Mahender Pratap stated in his examinationinchief that on 16102007, on receipt of DD no. 50B Ex. PW6/A, he along with Ct. Karam Singh had gone to SGM hospital where injured Jai Bhagwan was found admitted vide MLC Ex. PW7/A. Doctor declared the injured fit for statement he recorded statement of injured vide Ex. PW2/A. PW9 prepared the rukka Ex. PW9/A and got the FIR registered through Ct. Karam Singh. PW9 returned to the spot with brother of victim namely Jagdish and prepared the site plan Ex. PW9/B with his assistance. On 09122007, PW9 came to know through secret informer that accused persons were likely to come at Lakhiram Park. Complainant Jai Bhagwan was joined and PW9 along with complainant, Ct. Rajiv, Ct. Sri Bhagwan and informer reached at Lakhiram park bus stand. At about 8:40 pm, one boy came from the side of Sector22, Rohini and reached near bus stand of Lakhiram Park. Secret informer pointed out towards that person who was apprehended and his name came to be known as Kamruddin. FIR No. 64/07; State Vs. Kamruddin Page 7 of 12 Complainant also identified accused Kamruddin (correctly identified) as the person who had assaulted him with knife in his stomach with the help of his two associates. Accused made disclosure statement Ex. PW2/D and pointed out the place of occurrence i.e. Hari Enclave, PhI, Gali near the house of Satpal vide pointing out memo Ex. PW2/E. PW9 searched for the remaining two accused Ramesh and Bittoo and weapon of offence but no avail. PW9 obtained the result regarding the nature of injury from the doctor V. K. Jha who opined the injuries as grievous and other doctor opined the same as dangerous. PW9 found that place where the occurrence had taken place was having sufficient light.
12. PW1 is the brother of victim and he was not present at the spot at the time of incident. Statement of PW1 was not recorded by the IO. Therefore, he is the hearsay witness. However, he along with his sisterinlaw took the victim to the hospital. PW2 is the victim and he has categorically stated in his examination in chief that three boys (including the accused Kamruddin) took up quarrel with him and gave him knife blows. Meaning thereby, the incident took place after the quarrel. It is relevant to mention here that intention to cause death or cause such bodily injury likely to cause death in the normal or ordinary course cannot be readily imputed to the accused. In the case of Abdul Raheman (1943) Nag, 411, a bullock cart driver was persistently molested by the accused while he was proceeding on a road. The driver appealed to a police FIR No. 64/07; State Vs. Kamruddin Page 8 of 12 constable on duty for help. The police constable demanded the accused's name but he refused to give it. The police constable caught hold of his right hand and led him to a PS. On the way, the accused whipped out a knife from his waist and with a sharp sweep of his left hand dealt a blow on the chest of the constable. As his hold was relaxed, he set himself free and effected his escape. It was held that the accused was not guilty u/s 307 IPC but u/s 324 IPC for causing hurt with a dangerous weapon and u/s 332 IPC for causing hurt to a public servant with intent to prevent him from discharging his duty. In the case of Madhukar Awadhutroa Taide, 1996 Cri.L.J. 4025 (Bom), it was held that section 326 IPC would show that it will have to be shown that a particular weapon was used in the offence and further that the said weapon of offence was likely to cause death. Admittedly, the stick by which the offence was committed was not identified. Unless the court came to conclusion that the stick was capable of causing death, the conviction under section 326 IPC would not be possible. In that case, the conviction would be under section 325 IPC.
13. In Ansarudin Vs. State of Madhya Pradesh, (1997) 2 Crimes 157 (MP), it was held that it is not necessary that injury, capable of causing death, should have been inflicted. What is material to attract, the provisions of section 307 IPC is the guilty intention or knowledge with which the act was done, irrespective of its result. The intention and knowledge are the matters of inference from totality of circumstances and FIR No. 64/07; State Vs. Kamruddin Page 9 of 12 cannot be measured merely from the results. In Samiuddin @ Chotu 175 (2010) DLT 27, knife in question was not recovered, much less produced in course of trial. It was held that appellant could be sentenced u/s 392 IPC alone and offence does not fall within ambit of section 397 IPC. In the present case also, neither weapon of the offence i.e. knife was recovered nor produced and even otherwise, it was not identified by the complainant. PW2 in his crossexamination stated that he cannot give the description of the knife as it was darkness. Further, MLC Ex. PW7/A reveals that the victim was conscious, oriented and fit for statement. Moreover, the doctors were examined and they stated the nature of injury as grievous but they have neither stated about the depth of the injury/ wound nor they stated that the aforesaid injury was likely to cause death in the normal or ordinary course. Even otherwise, there is no evidence to show that the accused was inspired by the intention to commit murder of the victim. The prosecution has also not been able to prove any motive.
14. During crossexamination, PW2 told about the place of occurrence to the IO but he had not gone there. The light was not there. PW2 has not given any description of the knife. PW2 could not recall as to how many times his statement was recorded. In his crossexamination, PW3 did not remember the exact number of public persons present at the spot and even he could not tell the number of buses standing near the spot. PW3 further stated that accused was wearing pantshirt but PW3 FIR No. 64/07; State Vs. Kamruddin Page 10 of 12 could not tell the colour of the same. PW3 also stated that IO requested the public persons to join investigation but none agreed. PW9 in his crossexamination, stated that he did not record any statement of other witness except the complainant. On the one hand, PW9 stated that he prepared the site plan of the spot and there was sufficient light at the spot but on the other hand, he has not shown the street light in the site plan. PW9 further stated in his crossexamination that he had tried to get associated some public persons but he did not remember their names. PW9 also stated that one or two persons were passing but they did not join the investigation despite their requests. PW9 did not issue notice in writing to any public person who refused to join the investigation. I have also found that there are some contradictions in the testimonies of PWs. Independent public persons except the complainant was joined by the IO at the time of arrest and personal search of the accused. The TIP of the accused was not conducted. In Mukesh Chand Etc. Vs. State, 2010 (1) CC Cases (HC) 601, there was nothing on record to show as to whether any TIP was held or not which was mandatory under law. Prosecution case with regard to alleged incident, lodging of complaint, arrest of appellants and recovery etc. was full of contradictions. It was held that prosecution miserably failed to prove its case against any of the appellants. The appellants were acquitted. In the present case, it has emerged from the evidence and judgements discussed above that the FIR No. 64/07; State Vs. Kamruddin Page 11 of 12 accused did not intend to cause injury which was likely to cause death of the complainant/ PW2 and therefore, it cannot be reasonably said that the accused attempted to commit murder of PW2. The prosecution has not been able to establish the case against the accused under the provisions of section 307 IPC. Thus, the act of the accused falls within the ambit of section 325 IPC.
15. In view of the my aforesaid discussion, I am of the considered opinion that Prosecution has been able to prove its case against the accused beyond reasonable doubt u/s 325 IPC. I, therefore, hold accused Kamruddin guilty and convict him u/s 325/34 IPC.
(YASHWANT KUMAR) ADDL. SESSIONS JUDGE/NW03/ROHINI/DELHI ANNOUNCED IN THE OPEN COURT on 04062013 FIR No. 64/07; State Vs. Kamruddin Page 12 of 12