Delhi District Court
State vs (1) Irfan @ Lalla Bhai on 16 February, 2012
IN THE COURT OF SHRI P.S. TEJI : DISTRICT JUDGE &
ADDL. SESSIONS JUDGE, I/C (EAST) : KARKARDOOMA
COURTS, DELHI.
SC No.20/2011
Unique Case ID No.02402R0171482011
FIR No.61/2011
Police Station Gandhi Nagar
Under Section 308/34 IPC
State Versus (1) Irfan @ Lalla Bhai
S/o Hammiuddin
R/o 1712, Gali Masjid Wali
Kailash Nagar, Delhi.
(2) Rafiq S/o Ahmed Jaan
R/o 1762, Gali Masjid Wali
Kailash Nagar, Delhi.
(3) Mohd. Arif @ Monu
S/o Infaq
R/o 1712, Gali No 5E,
Masjid Wali Gali, Kailash Nagar
Delhi.
(4) Sonu @ Mohd. Anwar
S/o Infaq
R/o 1712, Gali Masjid Wali
Kailash Nagar, Delhi.
SC No 20/2011 State Vs. Irfan@ Lalla Bhai etc Page 1 of 20
Date of Institution : 06.07.2011
Date of judgment reserved : 08.02.2012
Date of judgment : 16.02.2012
JUDGMENT
Four accused persons, namely, Irfan @ Lalla Bhai,Rafiq, Mohd. Arif @ Monu and Sonu @ Mohd Anwar have been sent to face trial by the police of Police Station Gandhi Nagar in FIR No.61/2011 under Section 308/34 IPC.
2 Briefly stating the facts of the present case are that on 4.3.2011 at about 7.15 p.m on receipt of DD No.21A Ex.PW1/A regarding fight at near House No. 1762, Masjid Wali Gali, Kailash Nagar, Delhi, SI Rajpal Singh(PW7) along with Ct. Daljeet Singh(PW5) reached at the spot where they came to know that injured had gone to Police Station. Therefore, SI Rajpal Singh(PW7) returned back to Police Station and found him at the gate of P.S. Injured Imran(PW2) was sent to hospital in PCR van along with Ct. Daljeet. In the SDN Hospital, injured Imran was medically examined by Dr. Sunil Kumar Godiwal(PW3) and his MLC Ex.PW3/A was prepared. PW7 SI Rajpal Singh also reached the hospital and collected his MLC. Xray report Ex.PW8/A and Xray plates Ex.PW8/B were SC No 20/2011 State Vs. Irfan@ Lalla Bhai etc Page 2 of 20 prepared by Dr. Rajiv Gupta(PW8). Injured was declared fit for statement, therefore, he recorded his statement Ex.PW2/A. 3 In his statement Ex.PW2/A, injured Imran had stated that last year, he had been working in the Hotel of Ayub and Rafiq and work of tandoor was assigned to him. One girl Sahiba D/o of accused Irfan @ Lalla Bhai was residing opposite the Hotel and they both started talking and developed intimacy and this fact came to the knowledge of accused Irfan @ Lalla Bhai. On this, accused Irfan @ Lalla Bhai and his son accused Sonu @ Mohd. Anwar got angry and got his removed from the Hotel. Accused Irfan and Sonu also threatened him to finish if he was seen wandering in the gali. However, he continued going to the Gali off and on clandestinely. He further stated that about one month before while he was passing through the Gali opposite the house of accused Irfan and Sonu, accused Irfan stopped him and asked him to marry his daughter Sahiba. Imran stated to accused Irfan that he would inform him after having deliberation with his parents. On the same day, accused Irfan @ Lalla Bhai, his son Sonu and his nephew Monu abused and beat him and made him go and threatened him to eliminate, if he was seen in the gali in future,therefore, he stopped going there. SC No 20/2011 State Vs. Irfan@ Lalla Bhai etc Page 3 of 20 4 PW2 Imran further stated that on 4.3.2011 at about 6.00 p.m.. he received a call on his mobile No. 9278505075 from Rafiq who informed him that he needed a Karigar and he called him on that day at his Hotel. At about 7.00 p.m. He reached the Hotel of Rafiq who had separated from Ayub. As soon as he reached Hotel of Rafiq, accused Irfan @ Lalla Bhai, his son Sonu and his nephew Monu reached there and Rafiq addressed them that your prey has been called. Accused Irfan and his nephew Monu started beating him with kick and first and gave kick and fist blow on his mouth and stomach. Accused Irfan exhorted Sonu to hit on his head and burst the same. He also said to eliminate him on that day. Accused Sonu picked up Palta and hit the same on his head with great force as a result of which he received injury on his head and blood started oozing out. They also dragged him out of the hotel and brought to road and dumped there. They also beat him there on the road also. Accused Rafiq went on saying to clear their account on that day. This witness has also stated that accused Rafiq in pursuance of a conspiracy got him beat and injured at the hands of accused Irfan, Sonu and Monu.
5 On the statement Ex.PW2/A, SI Rajpal Singh (PW7) made endorsement Ex.PW7/A and handed over the same to Ct. SC No 20/2011 State Vs. Irfan@ Lalla Bhai etc Page 4 of 20 Daljeet(PW7) for registration of FIR. In the police station, Duty Officer HC Roop Kishore (PW7) recorded FIR Ex.PW1/B and made his endorsement Ex.PW1/C on the rukka. During the course of investigation on 5.3.2011, accused Mohd. Irfan @ Lalla Bhai and Rariq were apprehended and they admitted to have given beatings to Imran on account of his eveteasing Sahiba. Disclosure statements of accused Irfan and Rafiq Ex.PW5/A and Ex.PW5/B were recorded. They were arrested vide memo Ex.PW5/C and Ex.PW5/E respectively and their personal searchesEx.PW5/D andEx.PW5/F respectively were carried out. At the pointing out of accused Irfan and Rafique, Palta Ex.P1 used in the incident was got recovered from the Hotel of Rafiq. Same was converted into a pulanda and was seized Ex.PW5/G. Pointing out memo of the spot and Palta Ex.PW5/X was prepared. Case property was deposited in the malkhana. Statements of the witnesses were recorded under section 161 Cr.P.C.. Accused Monu had obtained bail from the court and he was formally arrested in the case vide memo Ex.PW7/A and his personal searchEx.PW7/B was conducted. On 29.04.2011, accused Sonu surrendered in the Court. He was interrogated and arrested in this case vide memo Ex.PW4/B and his personal searchEx.PW4/C. His disclosure statement was SC No 20/2011 State Vs. Irfan@ Lalla Bhai etc Page 5 of 20 recoded Ex.PW4/A. 6 After completion of the investigation, chargesheet was filed against accused persons in the Court of Ld. M.M. who after complying with provisions of section 207 Cr.P.C. committed the case to the Court of Sessions which in turn assigned the case to this Court for trial in accordance with law.
7 After hearing Ld. Counsel for the accused persons and Ld. Addl. PP for the State, charge under section 308/34 IPC was framed against the accused persons, which reads as under : "That on 4.3.2011 at about 7.00 p.m., at Hotel, H.NO. 1762, Masjid Wali Gali, Kailash Nagar, Delhi within the jurisdiction of PoliceStation Gandhi Nagar, you all in futherance of your common intntion, caused head injury to the injured Imran with Palta ( Kadchala) with such intention or knowledge and under such circumstances that if you all by your said act had caused the death of Imran, you all would have been guilty of culpable homicide not amounting to murder and thereby committed an offence punishable under section 308/34 IPC and within my cognizance."
8 Accused persons pleaded not guilty to the charge framed against them and claimed a trial.
9 In order to prove its case, prosecution has examined as many as 8 witnesses. PW1 Imran is the complainant and injured. SC No 20/2011 State Vs. Irfan@ Lalla Bhai etc Page 6 of 20 PW3 Dr. Sunil Kumar Godiwal had medically examined the injured Imran(PW2) and PW9 Dr. Rajiv Gupta had examined Xray plates and proved Xray report of the injured. PW1 HC Roop Kishore was the duty officer in the PS at the relevant time. PW5 Ct. Daljit and Ct. Sonu Kumar(PW6) remained associated with the investigation carried out by IOs PW7 SI Rajpal Singh and PW4 SI Amit Pratap. 10 On conclusion of evidence, statement of accused under Section 313 Cr.P.C. was recorded wherein they all have stated that they are innocent and have been falsely implicated in the present case. They have stated that police obtained their signatures on blank papers which were later converted into documents and used against them. Accused opted not to lead evidence in their defence. 11 I have heard Ld. Addl. PP for the State and Ld. Counsel for the accused and have carefully gone through record of the case.
12 Ld. Addl. PP for the State has argued that prosecution has proved its case against the accused persons that on the date of incident, all the accused persons gave beating to injured Imran. It is also argued that prosecution has proved its case against accused that accused Sonu gave Palta blow on the head of injured whereas other SC No 20/2011 State Vs. Irfan@ Lalla Bhai etc Page 7 of 20 accused persons gave fist and kick blows. It has also been argued that the medical record and the opinion of doctor confirmed that injured sustained injuries in the incident. It is argued that case against the accused has been proved beyond reasonable doubt. It is further argued that hostility of witnesses cannot discard the case of prosecution in toto.
13 On the other hand, Ld. Counsel for the accused has argued that he has been falsely implicated in the present case. It is further argued that he has nothing to do with the present case. It is argued that there is no evidence on record which connects the accused with present offence and even alleged eye witnesses have also turned hostile. It is further argued that in the absence of any evidence, accused is entitled for acquittal. Ld. Counsel for accused persons has also relied upon an authority reported as Ramesh vs. State 2010(1) JCC 796 to press his contention that intention or knowledge on the part of accused is to be deduced from the circumstances in which injuries had been caused as also the nature of injuries and the portion of body where such injuries were suffered.
Testimony of eye witness 14 Case of the prosecution is that on 4.3.2011, injured SC No 20/2011 State Vs. Irfan@ Lalla Bhai etc Page 8 of 20 Imran (PW2) was given beatings and Palta blow on his head by the accused persons and the said incident was witnessed by complainant (PW1).
15 To prove its case, prosecution has examined complainant/injured Imran as PW2. In his testimony, PW2 Imran has deposed that he is a Tandoor Karigar( bread maker). According to her in the year 2010, he had worked in the Hotel of one Ayub and accused Rafiq who had been running Hotel in Masjid Wali Gali No.1, Kailash Nagar, Delhi. He has further testified that during those days, he and one girl Sahiba, daughter of accused Irfan@ Lalla came in contact and accused Irfan @ Lalla came to know about the said affair. He was got removed from the Hotel of Rafique by accused Irfan. After some time, he again started visiting the Gali No.1 Kailash Nagar. Accused Irfan @ Lalla asked him to take away his daughter Sahiba. Thereafter, a quarrel is deposed to have taken place between him and accused Irfan. Sonu and Monu and thereafter he returned back to his house. 16 PW2 has further deposed that on 4.3.2011 he was called by accused Rafique in his Hotel in the evening time and he accordingly reached there. In the hotel, he was made to sit on the pretext of offering him a tea. In the meantime, accused Irfan @ Lalla, SC No 20/2011 State Vs. Irfan@ Lalla Bhai etc Page 9 of 20 Sonu and Monu also reached there. Accused Irfan caught hold of him from his neck and then accused Irfan, Sonu and Monu took him out of the Hotel and then started giving him beating. Accused Rafique boasted out that he had called your prey on that day and he asked his coaccused persons to finish him. Accused Irfan and Monu gave him kick and fist blows whereas accused Sonu gave Palta blow on his head. He sustained injury on his head and blood started oozing out from his head. He took out his handkerchief and placed the same on his injury and went to Police Station and from there he was removed to SDN Hospital by police zypsy where he was medically examined. His statement Ex.PW2/A was recorded. Investigating Officer prepared site planEx.PW2/B at his instance. He was declared hostile by the prosecution and was cross examined by Ld. Addl PP for the State. In his cross examination, he has admitted that accused persons got him removed from Hotel one month prior to incident and that they had also extended threat to his life, if he visited the Gali again. He has also admitted that due to fear, he did not visit the Gali again for sometimes and some days before he was passing from the Gali, accused Irfan stopped him and asked him to marry his daughter Sahiba at which he said that he would first discuss with his parents and tell thereafter. SC No 20/2011 State Vs. Irfan@ Lalla Bhai etc Page 10 of 20 Thereafter accused Irfan, his son Sonu and Monu abused him, gave him some beatings and thereafter he was let off. He has also admitted that accused Rafique had called him by making call on his mobile at about 6.00 p.m. On the pretext that he had some urgent work and his presence was required. He has admitted that he was given beatings by accused Irfan, Mou, Sonu and accused Rafique had given lalkara to accused persons to settle their scores. He has also stated that he had sustained injury on his nose, mouth, stomach apart from Palta blow given by accused Sonu.
17 In his cross examination by ld. Counsel for accused persons, he has stated that he received call from accused Rafique between 1012 a.m. and was asked to reach the Hotel. According to him, he was at his house at that time and was not doing anything. He has also stated that Doctor had made inquiry from him about the injury sustained by him but he did not remember if he had told the name of assailants to the Doctor. He has further stated that on 4.3.2011 at about 12.00 p.m. He reached at the house of Sahiba along with one Ahsan and Raja. He has admitted that some talks were held between him and parents of Sahiba at their house and that an oral quarrel took place between him and family members of Sahiba. He has also SC No 20/2011 State Vs. Irfan@ Lalla Bhai etc Page 11 of 20 admitted that after hot arguments, they all the three started running away from there. He has also admitted that his legs got stuck with each other and he fell down and sustained injury on his head. He has stated that he regained consciousness in the hospital after one and half hours where his statement was recorded. However, he is specific that he did not know as to what was written in his statement. He is also specific that his statement was not read over to him. He has also stated that he could not say as to what was recorded in his statement. He has also stated that public person had told him that accused Sonu had inflicted palta blow injury to him as he was unconscious at that time. He was never shown Palta by the IO. He has specifically stated that accused persons present in the Court had never threatened him nor had caused any beating to him at any point of time.
18 Though in his examination in chief, injured Imran has stated that accused persons had given him beatings but in his cross examination by Ld. Counsel for the accused persons, he came out with a new plea altogether that on the day of incident in the noon time he along with two other persons was at the house of accused Iran and Sonu and some hot words were exchanged between them and thereafter they started running from there and his leg got stuck with SC No 20/2011 State Vs. Irfan@ Lalla Bhai etc Page 12 of 20 legs of his associates as a result of which he fell down and sustained injuries on his head. He has completely denied if accused persons had threatened him at any point of time or had given him beating. He has also stated that he was told by someone that accused Sonu had inflicted injuries to him with Palta. He has also stated that he did not know as to what was written in his statement allegedly recorded by the police. He has also stated that police had not read out his statement to him. Therefore, in his cross examination, he has completely demolished the case of the prosecution. Therefore, on the basis of this testimony of the injured, it is not safe to come to the conclusion that injuries were caused to the injured by accused persons. 17 In State of UP vs. Shri Krishan AIR 2005 SC 762, upheld the acquittal of accused persons while observing that eye witnesses of the incident did not support the case of the prosecution, acquittal of accused persons was held to be proper. In another case titled Chellappan Mohandas and others vs. State of Kerala AIR 1995 SC 90, the conviction of appellants was set aside as the eye witnesses gave a distorted version.
20 Though testimony of an injured witness has its own efficacy and relevancy as he had sustained injury during occurrence SC No 20/2011 State Vs. Irfan@ Lalla Bhai etc Page 13 of 20 and he is least likely to exculpate the real offender. But it can not be lost sight of that in his examination in chief he has supported the case of prosecution and in his cross examination he has given altogether a different version exculpating the accused persons. Therefore, his testimony can not be held to be reliable, cogent and convincing to connect the accused persons with the commission of crime of the present case as injured/complainant has specifically stated that accused persons had never threatened him nor caused any injury on his him injury.
Medical Evidence 21 Even otherwise, as per testimony of injured himself, after sustaining injury at the hands of accused persons, blood started oozing out from his head, he took out his handkerchief and placed the same on his injury and went to Police Station. Therefore, it is clear that he was conscious after sustaining injury on his vital part of the body i.e. Head. In the hospital, he was medically examined by Dr. Sunil Kumar Godiwal vide MLC Ex.PW3/A. It is a general practice that in police case Doctor who examines an injured asks the cause of injury and name of assailants. But in the present case, PW3 Dr. Sunil Kumar Godiwal who medically examined the injured in his cross examination SC No 20/2011 State Vs. Irfan@ Lalla Bhai etc Page 14 of 20 has stated that in the present case injured had not disclosed the name of accused persons who assaulted him. Even otherwise, Palta Ex.P1 allegedly used in the present case with which injuries were inflicted on the person of Imran has not been produced before the Doctor to ascertain as to whether injuries mentioned in the MLC3/A could have been caused or were possible with the Palta Ex.P1. Therefore, medical evidence brought on record is also not sufficient to bring home guilt of accused.
Recovery of Palta 22 In the present case, disclosure statement of accused was recorded and same has been relied upon by the prosecution. In their confessional statements Ex.PW5/A and Ex.PW5/B, accused persons Irfan and Rafiq have admitted their participation in the present case and have got recovered Palta Ex.P1 which was seized vide seizure memo Ex.PW5/G. First of all, Section 25 of Evidence Act bars the admissibility of confessional statement made before police officers. Secondly, PW7 SI Raj Pal Singh in his cross examination has stated that he did not join any public person when accused persons pointed out the spot and got recovered the Palta. He has also stated that public persons were passing throough the spot at that time. He has SC No 20/2011 State Vs. Irfan@ Lalla Bhai etc Page 15 of 20 also stated that it was about 8.30/9.00 a.m. in the morning when the accused persons pointed out the place of incident and got recovered Palta. It is admitted fact that Hotel of accused Rafiq is situated in a residential area and residential houses are there. Time was also not odd. To the admission of the IO, he did not join any witness in the recovery of Palta though persons was passing through the Gali. In such circumstance, recovery of Palta can not be said to be beyond doubt. The Division Bench of our Hon'ble High Court in case titled, Chander Pal Vs. State (Reported in 1999 (1) RCR (Criminal) 150), has held that if independent witnesses are not associated in the recovery in pursuance of provisions of Section 27 of the Indian Evidence Act, then such recovery is not reliable. In another case reported in State Vs. Ramesh (Reported in 1989 II A.D. ( Delhi )
42), the Hon'ble Division Bench has held that if public persons are not associated in the recovery then the provisions of Section 100 of Cr. PC are not followed and such recovery becomes doubtful. In Sanwat Khan vs. State of Rajasthan AIR 1956 SC 54 and K. Chinnaswamy Reddy vs. State of Andhra Pradesh & Anr AIR 1962 SC 1788, it has been held that mere recovery of article i.e. iron rod in itself would be insufficient to support a conviction. Therefore, when public persons SC No 20/2011 State Vs. Irfan@ Lalla Bhai etc Page 16 of 20 were passing through the Gali and time was between 8.00/9.00 a.m., and no public person was joined in the recovery of the Palta, its recovery at the instance of accused becomes doubtful. Non joining of public witness 23 According to PW7 SI Rajpal Singh when he reached at the spot at 7.15/7.30 p.m., public persons were found present there and they informed about the quarrel. According to him, those public persons had told about quarrel with injured Imran. This witness has further testified that he did not record statement of any of the resident of the locality where the incident had taken place. Similarly PW5 Ct. Daljit who had also accompanied PW7 has also stated in his cross examination that public persons were found present at the spot but IO did not record their statement. In the present case, only injured is a public witness. To the admission of both PW5 and 7, public witnesses were present at the spot and they also told about the quarrel with injured Imran. Imran in the present case had demolished case of the prosecution in cross examination by saying that accused persons did not threaten or give injury to him. Had other public person who were admittedly present at the spot been examined, the actual occurrence could have been unveiled. But since no other public SC No 20/2011 State Vs. Irfan@ Lalla Bhai etc Page 17 of 20 witness has been examined and only injured has not supported the case of the prosecution, it remains a mystery as to who caused injury on the person of the injured.
24 Thirdly, to the admission of injured when accused persons gave Palta blow on his head, blood started oozing out. If the blood had oozed out, same could have fallen on the ground. However, PW7 SI Rajpal Singh, IO of the case, has stated that he did not notice any blood on the spot. Even no blood was detected on the Palta allegedly used in the incident and recovered at the instance of accused persons. Even Palta was not put to the Doctor for examination as to ascertain if injury present on the person of injured could have been caused with the Palta. Palta is not such a thing which is rarely available in the market. Therefore, non presence of blood at the spot as well as on the Palta Ex.P1 also raises doubt about authenticity of the present case.
Conclusion 25 In the present case, as per prosecution has examined injured Imran(PW2). But the fact remains that PW2 in his cross examination has categorically stated that accused persons had never threatened him nor had they caused injury on his person. PW2 in his SC No 20/2011 State Vs. Irfan@ Lalla Bhai etc Page 18 of 20 cross examination had given the reason of sustaining injury as fall on the ground when he was running away from the house of Sahiba daughter of accused Irfan @ Lalla Bhai as some hot words had exchanged between him and accused Irfan @ Lalla Bhai and Sonu at their residence. Another circumstance which raises doubt about prosecution's case is non presence of blood at the spot as well on the Palta allegedly used in the incident. According to PW7 when on receipt of information, he reached at the spot, he did not notice any blood there. Even no blood stained clothes of the injured were taken into possession. Prosecution has not even joined any public witness in the present case though available at the spot. Prosecution has also not joined any witness in the alleged recovery of Palta at the instance of accused persons, though public persons were present and time of recovery was between 8.009.00 a.m. Therefore, I am of the view that prosecution has not been able to prove its case against accused persons beyond reasonable doubt.
26 Consequently, I am of the considered opinion that prosecution has failed to prove its case against accused beyond reasonable doubt. Accordingly, accused Irfan @ Lalla Bhai, Rafiq, Mohd Arif @ Monu and Sonu @ Mohd. Anwar are hereby acquitted SC No 20/2011 State Vs. Irfan@ Lalla Bhai etc Page 19 of 20 of the charge framed against them 27 Accused are directed to comply with provisions of Section 437A of Cr.P.C.
Announced in the open Court ( P.S. TEJI )
Dated: 16.02.2012 District Judge and
Addl. Sessions Judge, I/C (East)
Karkardooma Courts : Delhi
SC No 20/2011 State Vs. Irfan@ Lalla Bhai etc Page 20 of 20