Delhi District Court
State vs Fuldhan Mirdha @ Radhey on 6 June, 2019
IN THE COURT OF
Dr. SATINDER KUMAR GAUTAM : ADDL. SESSIONS JUDGE-03 :
EAST DISTRICT : KARKARDOOMA COURTS : DELHI.
S.C. No. : 623 of 2017
State Versus Fuldhan Mirdha @ Radhey
S/o Sh. Fekan Mirdha
R/o Sunil Ka Makan, Gurjar
Chowk, Village Bhowapur,
Ghaziabad, U.P.
FIR No. : 75/2017
Under Section : 182 IPC & 25/27/54/59A Arms Act
Police Station : Gazipur
Chargesheet Filed On : 04.05.2017
Chargesheet Allocated On : 26.09.2017
Undersigned presided over
this Court : 06.11.2017
Judgment Reserved On : 17.05.2019
Judgment Announced On : 06.06.2019
JUDGMENT
1. None can expect about imagintion of human psychology. Can anybody cause harm himself to implicate other - this may happen SC No. 623/17 State Vs. Fuldhan Mirdha Page No.: 1 of 22 sometime and this is the case of the prosecution in hand and now court has to see whether prosecution has able to prove its case or not.
2. Necessary facts for disposal of the present matter, succinctly, are that DD No.29-A dated 12.03.2017 was received in the PS Gazipur regarding shot at to one person on which SI Sonu Singh along with Cost. Sonu reached at the spot where one motorcycle bearing registration no. UP14BB6851 was seen lying there. Fuldhan Mirdha was also seen there with injury on his left hand with blood oozing out. Said Fuldhan Mirdha disclosed that he had been shot at by Sirajuddin @ Sonu. Some suspicion was raised about the incident. Injured was rushed to the hospital.
3. During investigation of the case, neither blood trail nor any empty shell was found at the spot. No eye witness was also available at the spot, at that time. SI Sonu Singh reached the Hospital, obtained the MLC of the injured. Shirt worn by injured at the time of the incident was seized. Injured was inquired and was making contradictory statement about the incident. On thorough inquiry, injured disclosed that he was having one side affair with Khushbunisha, resident of his neighbour on account of which Sirajuddin and Nasruddin, brother and father of said Khushbunisha, were bearing grudge since both are having different religion, marriage of Fuldhan Mirdha and Khushbunisha cannot be SC No. 623/17 State Vs. Fuldhan Mirdha Page No.: 2 of 22 solemnised and were not having cordial relations and even Sirajuddin @ Sonu intimidated to him and on account of it, in order to take revenge from Sirajuddin @ Sonu, he caused self inflicted injury to himself from his desi katta and then hide the said pistol nearby bushes on the divider of the road. At the pointing out of Fuldhan Mirdha, said pistol was recovered, one fired cartridge was also recovered from the said katta. Proceedings were conducted for the same at the spot.
4. Since as per the investigations of the case, it is alleged that Fuldhan Mirdha has given and fabricated false evidence, resulted in an FIR No. 75/2017 under Sec. 182 IPC & 27/25 Arms Act was registered against Fuldhan Mirdha. On conclusion of the investigation, chargesheet was filed against the accused before the court of Ld. MM for the offences punishable under Sections 182 IPC and also 27/25 Arms Act.
5. It is pertinent to mention here that after hearing arguments on the point of charge, vide its detailed order dated 18.09.2017 held that case attracted the provisions of Section 195 IPC and as such, case was committed to the Court of Sessions as said Section is exclusively triable by it.
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6. Vide order dated 09.11.2017, charge under Section 195 IPC was framed against the accused. Vide order dated 20.08.2018 additional charge under Section 27/25/54/59 Arms Act was also framed against the accused. To the said charges, accused pleaded not guilty and claimed trial.
7. In order to prove its case, the prosecution took help of fourteen witnesses in all. These examined witnesses are as:
PW-1 Dr. Abbas Ali proved the MLC No. 3467 of patient Fuldhan Mirdha as Ex.PW1/A. PW-2 Dr. Narender Goyal opined the nature of injuries on the said MLC as 'Simple' at point X to X1.
PW-3 Nasiruddin deposed that accused Fuldhan Mirdha was residing in the same house as tenant where he resided. Accused was harassing, threatening and torturing him as he was demanding Rs.70,000/- from him for the purpose of marriage with his daughter Khushbu Nisha. He had not lodged any complaint against the accused to the police as he was afraid from the accused. He further stated that accused had been harassing and torturing his daughter Khushbu Nisha for the last four years as he wanted to marry his daughter forcibly. SC No. 623/17 State Vs. Fuldhan Mirdha Page No.: 4 of 22 PW-4 Khushbu Nisha stated that she along with her family earlier residing in the house of Nawab, Bhauwapur, Gazipur, Kaushambhi, Ditt. Ghaziabad and accused was also residing in her neighbourhood in the same house as tenant. Accused was harassing and torturing her for the last four years and wanted to marry her and also some days before the registration of present case, accused threatened her if she would not marry with him, he would falsely implicate her brother Sonu @ Sirajuddin in a false criminal case.
PW-5 Sirajuddin @ Sonu, son of PW-3 Nasiruddin, also toed the lines as of PW-3 Nasruddin.
PW-6 ASI Naresh Kumar, Duty Officer, proved DD No. 29A as Ex.PW6/A and also copy of FIR Ex.PW6/C. PW-7 Ct. Sonu joined the investigation of present case with Investigating Officer SI Sonu Singh. He has proved the seizure memos of pullandas of desi katta and used empty cartridge vide Ex.PW7/A, sketch of desi katta and used cartridge Ex.PW7/B, seizure memo of motorcycle bearing no. UP-14BB-6851 Ex.PW7/C. He is also a witness to the arrest of accused and proved memos Ex.PW7/D to 7/G prepared to that aspect.
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PW-8 HC Ashok Kumar, photographer, proved the
photographs of motorcycle bearing registration no. UP-14BB-6851 as Ex.P1 (colly.) with negatives Ex.P1A (colly.) of the same.
PW-9 SI Umed Singh proved the Certificate under Sec. 65-B of Indian Evidence Act vide Ex.PW9/A in respect of PCR call dated 11.03.2017.
PW-10 SI Vishesh Khokhar, Incharge Mobile Crime Team, inspected the spot and proved SOC Report Ex.PW10/A prepared by him.
PW-11 Dr. Kamal Chauhan, FSL expert, proved the Ballistic Report Ex.PW11/A. PW-12 HC Sanjeev Kumar, PCR Official, proved the call received with PCR on 12.03.2017 as Ex.PW12/A. PW-13 Sh. Ankit Chauhan, IPS, accorded the sanction under Section 39 of Arms Act and proved the said Sanction Ex.PW13/A. PW-14 SI Sonu Singh, IO, conducted the investigation of this case and proved the memos prepared by him in this case.
PW-15 ACP Dinesh Kumar proved complaint under Sec. 195 CrpC against the accused as Ex.PW15/A. SC No. 623/17 State Vs. Fuldhan Mirdha Page No.: 6 of 22 During the trial of this case, the accused has admitted some documents vide his statement under Sec. 294 CrPC - Sanction accorded by Addl. DCP Ex.PW13/A and FSL Report dated 11.04.2018 given by N.B. Bardhan (Ballistic Expert) as Ex.C1.
Detailed testimonies of the witnesses concerned will be discussed at appropriate stage of judgment.
8. All the incriminating evidence was put to the accused while recording his statement under Section 313 CrPC in which he denied all the allegations put against him. He pleaded his innocence and further pleaded his false implication further submitting that on the date of incident, Sonu @ Sirajuddin along with two more associates chased him on a bike and at the spot, fired him on account of which he (accused) fell down and sustained injuries and later on he was implicated falsely in this case. The accused wanted to lead evidence in his defence and examined four witnesses .
9. In defence, the accused examined DW-1 Sh. Mithilesh Kumar, Branch Manager of State Bank of India, Kaushambhi, Ghaziabad, U.P., who proved the account opening form along with copy of Aadhar card of customer and account statement vide Ex.DW1/A (colly. 8 pages) in the name of Khatbul Nisha D/o Nasiruddin R/o H.No. 255, Kaushambhi, SC No. 623/17 State Vs. Fuldhan Mirdha Page No.: 7 of 22 Bhowapur, Ghaziabad having account no. 34787472034.
10. DW-2 Mahesh Kumar, Advocate has dispatched the legal notice dated 05.01.2016 already Mark PW4/D5 (colly.) and identified signature of Siraz at point B1 and Khushbu at point B2.
11. The accused also examined his neighbour Ashok as DW-3 who stated that he knew the accused and also the family of Khushbu for the last five years as they were residing in the same premises. He stated that father of Khushbu Nisha had promised to solemnise her marriage with the accused. There were also some money transaction between the accused and mother of Khushbu Nisha. Family of accused and family of Khushbu also used to visit outside and inside Delhi several times.
12. The accused examined himself u/s 315 CrPC and stated that he used to reside in the house of one Nawab and near to that house, one family whose daughter Khushbu @ Nisha was also residing and friendship developed between him and said Khusbu @ Nisha. He further deposed that their families were also agreed for the said marriage of accused with Khushbu Nisha and father of Khushbu @ Nisha requested to borrow money for solemnization of said marriage. He stated that he along with Khushbu @ Nisha and her family went many times for trips to visit several places and during that period, some money transactions were taken place SC No. 623/17 State Vs. Fuldhan Mirdha Page No.: 8 of 22 and he had given money to family members of Khushbu Nisha from time to time. He further stated that later on with passage of time on refusal of marriage between him and Khusbu @ Nisha and payment of due amount, legal notice Ex.DW4/1 was served and in retaliation to the same, legal notice was also served upon him through landlord and even threats were extended to him and later on mother of Khusbu @ Nisha apologized for the same. He further stated that on 22.03.2017 a about 7/7.15 p.m. while he was on the way near Subzi Mandi on his motorcycle, he noticed he was being chased by Sonu (brother of Khusbu @ Nisha) with some other persons on a bike and then they struck against his bike and shot at him on account of which he fell down. Police came at the spot and he was medically treated but later on he was sent behind bars for this incident.
13. Ld. Addl. PP for the State argued that prosecution has been able to prove the charges through evidence of prosecution witnesses and recovery of weapon effected at the instance of the accused. He argued that there is no reason to disbelieve the testimony of the prosecution witnesses, which is cogent and credible and is sufficiently corroborated with other record. He argued that accused himself got recovered the weapon of offence used in the present crime and thus by giving false information to the police he committed the abovesaid offence. Ld. Addl. SC No. 623/17 State Vs. Fuldhan Mirdha Page No.: 9 of 22 PP, further submitted that there is no ground to false implication of the accused at the hands of the police officials with whom no ill-will, grudge or enmity has either been alleged or proved. Ld. Addl. PP, therefore, prayed for conviction, as per law.
14. Ld. counsel for accused firstly contended that evidence of defence witnesses is reliable and further argued that case of the prosecution is full of doubts as testimonies of the public witnesses is full of contradictions and improvements which makes the prosecution case doubtful. He also contended that photographs and other documents placed on record by defence clearly shows that prosecution case is built on sand and thus it has clearly proved that accused has been falsely implicated in this case and thus prayed for acquittal. During the course of arguments, ld. defence counsel further contended that no ingredients of Section 195 IPC are attracted in the present matter.
15. Qua Section 27/25 Arms Act, ld. defence counsel contended that non joining of public witnesses despite availability and sufficient time makes the prosecution case doubtful about the alleged recovery and even there is no material on record to prove that shot was fired at from the alleged recovered arms and even point 8 (ii) of Ex.C1 makes the prosecution case doubtful wherein it is clearly mentioned that - no opinion SC No. 623/17 State Vs. Fuldhan Mirdha Page No.: 10 of 22 could be possible with respect to interlinking of 7.65mm cartridge case contained in Parcel no. Ex. - B with the 7.65mm country made pistol contained in Parcel No. Ex. - A ..." and prayed for acquittal of the accused under Arms Act.
16. Rival submissions considered and entire material on record has also been taken into consideration in the light of the law laid down on the issue in question.
17. First of all, court will deal with the contention of ld. defence counsel qua his contention that defence witnesses be treated at par. Undisputed fact is that in case reported that State of Haryana Vs. Ram Singh, 2002 (1) JCC 385 (Supreme Court of India), Hon'ble Apex Court clearly observed as - evidence tendered by defence can not always be termed to be a tainted one and the they are entitled to equal treatment and equal respect as that of the prosecution and that the issue of credibility and the trustworthiness ought also to be attributed to be at par with that of the prosecution witnesses. This view was also reiterated in case reported as Anil Sharma & Ors V State of Jharkhand [2004 (3) RCR (Cri) 774]. But it is also to be observed that it is the duty of the court that evidence of the witnesses be meticulously evaluated.
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18. Perusal of the record shows that Ex.DW1/A is only account opening form and in the nominee name of accused is mentioned but there is overwriting on the same and even there is no proof for nominee. Apart from that, on one hand accused claimed that marriage of accused and his alleged lover could not be solemnised and on the other hand, name of the accused is mentioned as pati/piti - whatever may be. DW-2 Mahesh Kumar only proved the legal notice. It is to be noted that defence is double edged weapon and if alleged money transactions were there, accused might be having grudge against the complainant and his family. DW-3 is of no use to the defence as he only stated about relations between the two families i.e. of accused and Khushbunisha. DW-4 accused himself reiterated the defence plea.
19. Now court shall deal with the material on record in terms of the testimonies of the witnesses. It is undisputed fact that earlier chargesheet in the present matter was filed under Sec. 182 IPC but on account of observations made in the order dated 18.09.2017, present case has been converted into Sec. 195 IPC and committed to the court of Sessions. Now this court has to analysis the matter available on record as to whether case falls within the four corners of Sec. 195 IPC or any other Section and SC No. 623/17 State Vs. Fuldhan Mirdha Page No.: 12 of 22 further that whether prosecution has been able to prove its case beyond all reasonable doubts.
20. Section 182 IPC falls under Chapter X while Section 195 IPC falls under Chapter XI.
21. To facilitate the matter, court will deal with the ingredients of Sections one by one and Section 195 IPC is reproduced as under:
Giving or fabricating false evidence with intent to procure conviction of offence punishable with imprisonment for life or imprisonment - Whoever gives or fabricates false evidence intending thereby to cause, or knowing it to be likely that he will thereby cause any person to be convict xxxx"
22. While Section 182 IPC reads as under:
False information, with intent to cause public servant to use his lawful power to the injury of another person - Whoever gives to any public servant any information which he knows or believes to be false; intending thereby to cause or known it to be likely that he will thereby cause such SC No. 623/17 State Vs. Fuldhan Mirdha Page No.: 13 of 22 public servant -
(a) to do or omit anything which such public servant ought not to do or omit if the true state of facts respecting which such information is given were known by him, or
(b) to use the lawful power of such public servant to the injury or annoyance of any person shall be punished xxxx"
23. From the plain reading of both these sections, it is clear Section 182 IPC deals with if any one gives to public servant any information which he knew or believe to be false while Section 195 IPC deals with giving or fabricating false evidence intending thereby to cause or knowing it to be likely that will hereby cause any person to be convicted. Hence, from bare perusal of both these Sections, it is clear that in the former false information given to public servant knowing well that that it is false while in the later one giving or fabricating false evidence intending to cause any person to be convicted. Section 195 IPC mentions the word "Evidence".
24. As per the Concise Oxford Dictionary, Tenth Edition, word "Evidence" means information indicating whether a belief or proposition is true or valid and also information used to establish SC No. 623/17 State Vs. Fuldhan Mirdha Page No.: 14 of 22 facts in a legal investigation or admissible as testimony in a law court.
25. Hence, it clearly recognises that so far as giving and fabricating is concerned, it must be before any judicial proceedings. Here the accused now who is facing trial before the court, admittedly, neither made nor fabricated any false evidence before any judicial proceedings, so far as present matter is concerned.
26. Section 182 IPC defines as giving of false information so as to cause the public servant to act upon it; the offence is complete when the information reaches the public servant concerned (Ref.: Rathinam Pillai AIR 1932 Mad 427).
27. The object of this Section is that no one should give false information with intent that he should be misled by a person who believed that information to be false and intended to mislead him. Thus, it is an offence to give false information which misleads a public servant into doing what he ought not to do, whether that can be shown to be intended for the purpose of injuring any particular person or not. This Section does not require that action must always be taken if the person who moves to the public servant knows or believes that action will be taken. (Ref.: Daulat Ram AIR 1962 SC 1206).
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28. To constitute an offence under Section 182 IPC, it must be shown that the person giving the information knew or believed it to be false, or that the circumstances in which the information was given were such that the only reasonable inference is that the person giving the knew or believed it to be false. It does no cast any burden upon the accused to show that when he made it, he believed it to be true. The prosecution must make out that the only reasonable inference was that he must have known or believed it to be false. To constitute the offence punishable under Sec. 182 IPC, it is necessary that the information given should be information which the accused knows or believed to be false. There must have been a positive knowledge or belief that it is false.
29. Perusal of the record is clear to the aspect that in the present matter, Fuldhan Mirdha, who is facing trial before this court, has given an information to the police to the effect that he has been shot at. Police arrived at the spot pursuant to the same and injured was got medically examined. Later on when the said injured/accused was inquired about the matter, suspicion was raised about his conduct and contradictory statement made by him. Then police thoroughly investigated the matter and then present chargesheet was filed against the present accused. No SC No. 623/17 State Vs. Fuldhan Mirdha Page No.: 16 of 22 ill-will, grudge or enmity has either been proved or alleged against any of the police officials. He took simple plea that he was implicated in this case with connivance of the Sonu and his family and that too in the cross- examination of PW-14 SI Sonu Singh and no such suggestion was ever put to PW-7 Const. Sonu Singh who also visited the spot with said PW-14 SI Sonu Singh. During cross-examination of said PW-7 Const. Sonu Singh only suggestions were put to him to the effect that proceedings are manipulated and no such document was ever prepared at the spot and that he never visited the spot, as alleged. Apart from that no concrete material in record to show that as to what was the reasons for false implication of the accused by police with connivance of the complainant.
30. Nothing has come on record to attract the provisions of Sec. 195 IPC. It always be kept in mind that even defence is double edged weapon and even accused might have grudge with ulterior motive for giving a false information to the police. In the present matter, accused have given false information to the police with intention to take the action on the said report/complaint against brother of Khusbunisha .
31. In view of the above evidence and material on record, prosecution has not been able to prove "what is the false evidence and to which authority the false evidence has been brought on record against the SC No. 623/17 State Vs. Fuldhan Mirdha Page No.: 17 of 22 accused". Even there is no iota of evidence till filing of chargesheet unless the witness have been produced before competent authority that cannot be treated as evidence brought on record. The terms as nomenclature "evidence" cannot be said to have been brought by the prosecution to be framed within four corners of case of the prosecution under Sec. 195 IPC. Initially the case was registered under Sec. 182 IPC and later on without change in any circumstances and any further material evidence was collected, it has been converted into 195 IPC by the observations made by learned Metropolitan Magistrate vide order dated 18.09.2017, though found no material on record to be brought home the evidence against the accused to be booked under Sec. 195 as defined under Indian Penal Code. As such, court is of the view that prosecution has failed to prove its case against accused Fuldhan Midrha @ Radhey S/o Sh. Fekan Mirdha beyond all reasonable doubt for proving the offence punishable under Sec. 195 IPC but case falls under the provisions of Sec. 182 IPC.
32. With this discussion, accused Fuldhan Mirdha @ Radhey S/o Sh. Fekan Mirdha is acquitted of the offence punishable under Sec. 195 IPC but said accused is held guilty for the offence punishable under Sec. 182 IPC and is convicted, as such. SC No. 623/17 State Vs. Fuldhan Mirdha Page No.: 18 of 22
33. Apart from that accused has also been charged for the offence punishable under Sec. 27/25 Arms Act.
34. Qua that offence, ld. defence counsel, as mentioned above, contended that testimony of the police officials cannot be believed and non-joining of the public witnesses at the time of the alleged recovery makes the prosecution case doubtful and thus accused is entitled for benefit of doubt to this effect too.
35. As regards, contention raised by ld. defence counsel that testimony of the police officials cannot be believed, it is to be kept in mind that it is well settled law that the police officials are competent witnesses and conviction against the accused can be based on their sole testimony but an onerous duty has been cast upon the court to scutrtinise their statements very closely in order to form an opinion whether they are reliable and trustworthy. In judgment reported as Govt of NCT of Delhi Vs Sunil (2001) 1 SCC , 652 it is held that:
"It is an archaic notion that actions of the police officer should be approached with initial distrust. It is time now to start placing at least initial trust on the actions and the documents made by the police. At any rate, the court cannot SC No. 623/17 State Vs. Fuldhan Mirdha Page No.: 19 of 22 start with the presumption that the police record are untrustworthy. As a preposition of law the presumption should be other way around. That officials acts of the police have been regularly performed is a wise principle of presumption and recognised even by the legislature. Hence when a police officer gives evidence in court that a certain articles was recovered by him on the strength of the statement made by the accused it is open to the court to believe the version to be correct if it is not otherwise shown to be unreliable. It is for the accused, through cross examination of witnesses or through any other materials to show that the evidence of the police officer is either unreliable or at least unsafe to be acted upon in a particular case. If the court has any good reason to suspect the truthfulness of such records of the police the court could certainly take into account the fact that no other independent person was present at the time of recovery. But it is not a legally approvable procedure to presume that police action as unreliable to start with, nor to jettison such action merely for the reason that police did not collect signatures of independent persons in the documents made contemporaneous with such actions."
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36. Hence, this issue raised by the defence is not tenable in the eyes of the law and do not come support to the accused.
37. One of the contentions raised by ld. defence counsel is that non joining of the public witnesses at the time of the alleged recovery makes the prosecution case doubtful. Perusal of the record shows that earlier Fuldhan Mirdha was sent for getting him medically examined. Thereafter, only recovery was effected when suspicion was raised on the statement of the accused, now facing trial. PW-7 Const. Sonu during his cross-examination conducted on 26.04.2018 admitted that residential area was about 200 meters from the said spot. Place of recovery was a main road and even it was during evening hours/early night hours during the month of March, 2017. Delhi is metropolitan city and at that time public persons are easily available and even police has every opportunity and time to join the independent public witnesses during the proceedings of said recovery. In the present matter, non joining of public witnesses creates a shadow of doubt on the prosecution case.
38. Apart from that, Ex.C1, FSL report, opined under point 8 (ii) as
- No opinion could be possible with respect to interlinking of the 7.65 mm cartridge case (marked SC No. 623/17 State Vs. Fuldhan Mirdha Page No.: 21 of 22 C/1) contained in Parcel No. Ex. - B with the 7.65 mm country made pistol pistol (marked W/1) contained in Parcel Ex. - A due to it blown off percussion cap.
39. This also creates doubt on the prosecution case about the alleged recovery at the pointing out of the accused. There cannot be dispute to the legal proposition that prosecution has to prove its case beyond all reasonable doubts.
40. Hence, in view of the above, court is of the view that prosecution has failed to prove its case beyond all reasonable doubt for the offence punishable under Sec. 27/25/54/49 Arms Act for which accused has been charged with, against the accused and as such, accused is entitled for the acquittal of the same under said charge.
41. Sum up of the above discussion is that accused Fuldhan Mirdha @ Radhey S/o Sh. Fekan Miya is acquitted under Sec. 195 IPC and also 27/25/54/59 Act while said accused is held guilty for the offence punishable under Sec. 182 IPC and is convicted, as such. Digitally signed by
SATINDER SATINDER KUMAR
Announced in the open Court KUMAR GAUTAM
Date: 2019.06.07 10:10:04
on 06th day of June, 2019. GAUTAM +0530
(Dr. Satinder Kumar Gautam)
Additional Sessions Judge-03 (East):
Karkardooma Courts: Delhi.
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