Delhi District Court
State vs Faheem on 11 March, 2024
IN THE COURT OF DR. RAKESH KUMAR
ADDITIONAL SESSIONS JUDGE (FTC-02): SOUTH EAST
SAKET COURT COMPLEX, NEW DELHI
SC No.1760/2016
State v. Faheem
FIR no. 206/2013
Police Station: Amar Colony
CNR No: DLSE010004272013
State
Versus
1. Faheem
2. Wasim
Both Sons of Allauddin
Residents of H. No. S-53/154, Sri Niwas Puri
Gandhi Camp, Private Colony,
New Delhi. .....ACCUSED PERSONS
Date of Institution : 01.10.2013
Judgment reserved on : 28.02.2024
Date of Decision : 11.03.2024
JUDGMENT
1. A police report was put up by the State through officer-in-charge of the police station Amar Colony before the concerned Metropolitan Magistrate on 01.10.2013 with the view to take cognizance of offences under sections 323/307/34 of the Indian Penal Code, 1860 (in short 'IPC') against the accused Digitally signed by DR DR RAKESH RAKESH KUMAR KUMAR Date: 2024.03.11 16:43:20 +0530 FIR no. 206/2013 State v. Faheem & Anr. Page 1 of 42 persons, namely, Faheem and Wasim for having committed the said offences and to proceed with committal of the case.
2. As per the police report on 25.05.2013, this case FIR was registered against the accused persons, namely, Noor Mohd. Irshad, Wasim, Abid & Nadeem in police station Amar Colony for having committed the offence punishable under sections 307/34 IPC.
3. As per the police report, on 25.05.2013, on assigning of DD No.27 and 29 to Assistant Sub-Inspector Balbir Sharma, he along with Constable Jugesh reached the spot of incident at S- 53/344, Gandhi Camp, S.N. Puri and met injured persons, namely, Jahid and his mother Smt. Nawaban at the spot; that the injured, Jahid was having injury marks on both sides of his face and they were sent to Trauma Center, AIIMS along with Constable Jugesh Rai and Assistant Sub-Inspector Balbir Sharma also reached there.
4. It is further stated in the police report that vide MLC no. 369129, the injured, Mohd. Jahid and vide MLC no. 369120, the injured, Smt. Nawaban were under treatment and were declared fit for statement and the injured, Mohd. Jahid got his statement recorded.
5. As per the police report, it is, inter-alia, stated by complainant, Jahid that he along with his family resides at Gandhi Camp, Sri Niwas Puri, New Delhi and used to work at shop no. 64, Okhla Sabzi Mandi with his father Mohd. Umar;
FIR no. 206/2013 State v. Faheem & Anr. Page 2 of 42 Digitally signed DR by DR RAKESH
KUMAR
RAKESH Date:
KUMAR 2024.03.11
16:43:36 +0530
that on 25.05.2013, at about 05:30 PM, in the evening, a quarrel of the complainant, Zahid, his brother Zakir and his father had taken place with Faheem and his father Allauddin; that at about 08:15 p.m. in the night, he was present at his home and his brother Zakir and father had gone to Hospital; that at about 08:20 PM in the night, his neighbours, Noor Mohd. son of Nafees, Irshad Mohd., Wasim, Abid and Nadeem, brother of Faheem came outside his house and started abusing; that when the complainant came out of his house, Noor Mohd., Irshad, Wasim and Abid caught hold of him and Nadeem had attacked him on the neck and face with the surgical blade which he was having in his hand, with an intention to kill him; that he got injuries and on seeing the blood oozing out they started running away and in the meantime, his mother, Smt. Nawaban also came there and tried to catch them; that the said persons, giving fist blows and kicks to his mother, ran away from there; that in this way, the above-said persons have attacked and tried to kill him and have assaulted his mother also, therefore, action as per law, should be taken against the offenders.
6. It is further reported in the police report that from the statement of the complainant and MLCs, the offence under section 307/34 IPC has been made out, therefore, a case under those sections was got registered and further investigation was marked to and taken up by Sub-Inspector Om Prakash.
7. It is further reported in the police report that during the course of investigation, at the instance of the complainant, the Digitally signed by DR DR RAKESH RAKESH KUMAR KUMAR Date: 2024.03.11 16:43:44 +0530 FIR no. 206/2013 State v. Faheem & Anr. Page 3 of 42 spot of incident was prepared and statements of the witnesses were recorded.
8. It is further reported in the police report that the complainant had got his statement recorded wherein he had stated that in his first statement, he had informed that Noor Mohd. Irshad, Wasim and Abid caught hold him and Nadeem had attacked on his neck and face with a surgical blade with an intention to kill him and due to which he had suffered injuries, whereas, he was caught hold by Noor Mohd., Irshad and Abid and Wasim had attacked him on his neck and face with the surgical blade, he was having in his hand, due to which, he got injury.
9. It is further reported in the police report that on 26.05.2013, the accused Wasim was arrested and the documents regarding arrest were prepared, his confession statement was recorded and at the instance of the accused, the surgical blade used during the commission of offence was recovered, its sketch was prepared, a parcel was made and it was seized and deposited in 'Malkhana'.
10. It is further reported in the police report that the clothes worn by complainant Jahid and Mohd. Umar during the incident were seized as evidence vide seizure memo and deposited in 'Malkhana' and the accused was sent to judicial custody. It is further reported in the police report that blood- stained clothes and the blood sample of the complainant were DR RAKESH Digitally signed by DR RAKESH KUMAR KUMAR Date: 2024.03.11 16:43:57 +0530 FIR no. 206/2013 State v. Faheem & Anr. Page 4 of 42 sent for getting FSL report and after getting the report, it would be sent to the Court.
11. It is further reported in the police report that the surgical blade used in the incident was also sent to the Trauma Center, AIIMS and subsequent opinion report no.85 was obtained which is attached herewith. It is further reported in the police report that the doctor in his report opines, "After perusal of the above-mentioned documents and examination of the alleged weapon, I am of the considered opinion that the injuries mentioned in MLC cannot be possible by the alleged weapon". It is further reported in the police report that a subsequent opinion regarding injuries of the complainant, Jahid was also obtained from doctor who in his pointing report no.119 states, "after perusal of the available documents and facts, I am of the considered opinion that laceration use usually are not self- inflicted, however, possibility of self-infliction cannot be ruled out."
12. It is further reported in the police report that on getting anticipatory bail on 29.05.2013 from the court, the accused Allauddin was formally arrested on 30.05.2013 and the accused Faheem was formally arrested on 03.06.2013 and they were released on bail as per the order of the court and search for other accused persons was made.
13. It is further reported in the police report that the alleged, Abid son of Shaukin resident of Jhuggi S-53/92, Gandhi Camp Sri Niwas Puri, New Delhi was playing cricket for Panther FIR no. 206/2013 State v. Faheem & Anr. Page 5 of 42 DR Digitally signed by DR RAKESH KUMAR RAKESH Date: 2024.03.11 KUMAR 16:44:05 +0530 Cricket Team-XI at ITM University, Gurgoan, Haryana on 25.05.2013 from 05:00 PM to 02:00 AM in the night and to that effect, the Captain of the team, Mirza Fahad and the Coach, Shahid Akram have given their statements in writing and also produced score book of the competition match held on 25.05.2013, the copy of which is attached herewith; that neighbours of Noor Mohd. and Irshad had got their statement recorded that the complainant has filed a false complaint against them and the statements of the witnesses are also attached herewith. It is further reported in the police report that no evidence was found against the accused persons, Abid, Noor Mohd. and Irshad, however, they are kept in column no. 12.
14. It is further reported in the police report that during investigation, Nadeem son of Allauddin was found to be juvenile and his date of birth certificate and apprehension documents were got completed and thereafter, he was produced before JJ Board and separate police investigation report was prepared against JCL and was put up in JJ Board and section 323 IPC was added in the case.
15. It is further reported in the charge-sheet that there was sufficient material to proceed against the accused persons, namely, Wasim, Faheem and Allauddin and the afore-said acts on their part revealed commission of offences punishable under sections 323/307/34 of Indian Penal Code, 1860 and it is, therefore, prayed that cognizance of the offences committed by Wasim, Faheem and Allauddin may be taken and they should be Digitally signed by tried as per the provisions of law. DR RAKESH DR RAKESH KUMAR KUMAR Date: 2024.03.11 16:44:15 +0530 FIR no. 206/2013 State v. Faheem & Anr. Page 6 of 42
16. After completion of the investigation, the investigating officer had filed the charge-sheet before the concerned Metropolitan Magistrate.
17. On the police report, on 25.05.2013, the Learned Metropolitan Magistrate had taken the cognizance of the offences and issued summons for presence of the accused persons.
18. Pursuant to the summons, the accused persons appeared before the Metropolitan Magistrate. On 31.10.2013 and on 08.01.2014, copies of police report and other documents and its e-copies were supplied to the accused persons.
19. On 30.01.2014, the Learned Metropolitan Magistrate found the offence to be exclusively triable by the court of Sessions and therefore, committed the case to the Court of Sessions.
20. On 16.01.2015, upon considering the police report and the documents sent with it under Section 173 Cr.P.C. and after hearing the Additional Public Prosecutor and counsel for the accused, the charge was framed against the accused persons for his having committed offences punishable under section 307/323/34, the Indian Penal Code.
21. The charges were read over and explained to the accused persons and they were asked if they pleaded guilty of the offences charged or claimed to be tried. The accused persons did Digitally signed by not plead guilty and claimed trial. DR RAKESH DR RAKESH KUMAR KUMAR Date: 2024.03.11 16:44:34 +0530 FIR no. 206/2013 State v. Faheem & Anr. Page 7 of 42
22. In support of its case, the prosecution got examined PW1 Mohd. Jahid (injured/complainant), PW2 Smt. Nababan (2nd injured), PW3 Mohd. Umar, PW4 Sub-Inspector (retired) Om Prakash, PW5 Salim, PW6 Iqbal, PW7 Sub-Inspector (retired) Phool Singh, PW8 Mirza Fahd Baig, PW9 Sub- Inspector (retired) Balbir Sharma, PW10 Inspector R.S. Dagar (Investigation Officer), PW11 Sunita Gupta, Senior Scientific Officer (Biology), FSL, PW12 Sub-Inspector Devender Singh, PW13 Head Constable Jugesh Rai and PW14 Jakir. During the examination of the prosecution witnesses, the documents Ex.PW1/A, Ex.PW1/B, Ex.PW1/C, Ex.PW1/D, Ex.PW9/A, Ex.PW10/A, Ex.PW10/B, Ex.PW10/C, Ex.PW10/D, Ex.PW10/F, Ex.A9, Ex.A10, Ex.PW10/G, Ex.PW10/H, Ex.PW11/A and 'Pullanda' Ex.P1, Ex.P2, Ex.P3 and Ex.P4 were also tendered in evidence.
23. On 19.07.2023, prosecution evidence was closed and matter was posted for examination of the accused under section 313 Cr.P.C and for his statement.
24. On 15.09.2023, the court examined the accused persons under Section 313 Cr.P.C. and their separate statements were recorded. During their examination under Section 313 of Cr.P.C., the accused persons, namely, Faheem and Wasim denied the correctness of incriminating circumstances appearing in the evidence against him. During their examination under Section 313 of Cr.P.C., the accused persons took the defence that they are innocent. It is further stated by the accused persons that they are falsely implicated. The accused Faheem expressed his desire to FIR no. 206/2013 State v. Faheem & Anr. Page 8 of 42 Digitally signed by DR DR RAKESH RAKESH KUMAR Date: 2024.03.11 KUMAR 16:44:41 +0530 lead evidence in his defence. However, accused Wasim did not express his desire to lead evidence in his defence.
25. The accused Faheem examined himself as DW1 in his defence.
26. I have heard Mr. A.T. Ansari, Additional Public Prosecutor for the State and Mr. Ravinder Bhati, Advocate for both the accused persons and have gone through the record of the case carefully.
27. Having drawn my attention on the testimonies of PW1 Mohd. Jahid, PW2 Smt. Nababan, PW3 Mohd. Umar, PW4 Sub-Inspector (retired) Om Prakash, PW5 Salim, PW6 Iqbal, PW7 Sub-Inspector (retired) Phool Singh, PW8 Mirza Fahd Baig, PW9 Sub-Inspector (retired) Balbir Sharma, PW10 Inspector R. S. Dagar, PW11 Sunita Gupta, PW12 Sub-Inspector Devender Singh, PW13 Head Constable Jugesh Rai and PW14 Jakir; and the documents Ex.PW1/A, Ex.PW1/B, Ex.PW1/C, Ex.PW1/D, Ex.PW9/A, Ex.PW10/A, Ex.PW10/B, Ex.PW10/C, Ex.PW10/D, Ex.PW10/F, Ex.A9, Ex.A10, Ex.PW10/G, Ex.PW10/H, Ex.PW11/A; and 'Pullanda' Ex.P1, Ex.P2, Ex.P3 and Ex.P4, the Learned Additional Public Prosecutor for the State has submitted that in the first statement of the main injured, Jahid had named five persons, namely, Noor Mohammad, Irshad, Abid, Wasim and Nadeem (brother of Fahim) out of which Noor Mohammad, Irshad and Abid were found not involved in the crime by the police. It is further submitted by Learned Additional PP for the State that during trial, the complainant added Fahim FIR no. 206/2013 State v. Faheem & Anr. Page 9 of 42 Digitally signed by DR DR RAKESH RAKESH KUMAR Date: 2024.03.11 KUMAR 16:44:48 +0530 and his mother, Naseem to have been involved in this case. It is further submitted by Learned Additional PP for the State that in both the statements, it is mentioned that the injuries were inflicted by Wasim by using surgical blade. It is further submitted by Learned Additional PP for the State that the second eye witness is PW2 Nababan, who in her statement under section 161 Cr.P.C. has not stated about the time. It is further submitted by Learned Additional PP for the State that PW2 has named Wasim but added the names of Fahim and Alauddin. It is further submitted by Learned Additional PP for the State that PW2 had also stated that Umar was also there and Umar was examined as PW3. It is further submitted by Learned Additional PP for the State that as per the testimonies of PW3 Md. Umar, Rashid was not an eye witness and Umar was present at the police booth. It is further submitted by Learned Additional PP for the State that Fahim examined himself in defence as DW1 and took plea of alibi. It is further submitted by Learned Additional PP for the State that MLCs shows Fahim was not there at the spot. It is further submitted by Learned Additional PP for the State that now, the question is whether Wasim was involved in the crime. It is further submitted that opinion was sought if the injuries were self-inflicted injuries and the opinion is available in the court file as Ex. A9, according to which, such injury cannot be inflicted by surgical blade which says, "cannot be possible by surgical blade".
28. Per contra, counsel for the accused has drawn my attention on the testimonies of PW1 Mohd. Jahid, PW2 Smt. Nababan, PW3 Mohd. Umar, PW4 Sub-Inspector (retired) Om FIR no. 206/2013 State v. Faheem & Anr. Page 10 of 42 DR Digitally signed by DR RAKESH RAKESH KUMAR Date: 2024.03.11 KUMAR 16:44:55 +0530 Prakash, PW5 Salim, PW6 Iqbal, PW7 Sub-Inspector (retired) Phool Singh, PW8 Mirza Fahd Baig, PW9 Sub-Inspector (retired) Balbir Sharma, PW10 Inspector R.S. Dagar, PW11 Sunita Gupta, PW12 Sub-Inspector Devender Singh, PW13 Head Constable Jugesh Rai and PW14 Jakir; and the documents Ex.PW1/A, Ex.PW1/B, Ex.PW1/C, Ex.PW1/D, Ex.PW9/A, Ex.PW10/A, Ex.PW10/B, Ex.PW10/C, Ex.PW10/D, Ex.PW10/F, Ex.A9, Ex.A10, Ex.PW10/G, Ex.PW10/H, Ex.PW11/A; and 'Pullanda' Ex.P1, Ex.P2, Ex.P3 and Ex.P4 and submitted that three persons out of five named in 'rukka' (Ex.PW1/A) were kept in column no. 12 and then the complainant gave a supplementary statement. It is further submitted that the surgical blade was seized and FSL Report regarding the use of surgical blade is Ex. A9. Having drawn my attention to the first FIR (Ex. D1) counsel for the accused submitted that the incident happened at 5:30 p.m. and the accused reached the hospital and at 8:27 p.m. and 8:28 p.m., two MLCs were prepared. It is further submitted that the accused Fahim remained in the hospital till 9:30 p.m. It is further submitted that the accused persons have been acquitted in that case. It is further submitted that in the FIR, allegations are that Nadeem inflicted injuries with blade, however, in statement under section 161 Cr.P.C., it is stated that Wasim used the blade. It is further submitted that PW5, PW6 & PW8 have been claimed to be the eye witnesses but they turned hostile. It is further submitted that there is no other case against the accused persons, except the present one, whereas, the complainant's side are B.Cs having number of cases against them. DR Digitally signed by DR RAKESH RAKESH KUMAR Date: 2024.03.11 KUMAR 16:45:03 +0530 FIR no. 206/2013 State v. Faheem & Anr. Page 11 of 42
29. I have given my thoughtful consideration to the submissions made on behalf of the parties.
30. The accused persons have been charged for the offences punishable under sections 307/323/34 I.P.C. Section 307 reads as follows:
"307. 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 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 323 reads as follows:
"323. Punishment for voluntarily causing hurt.- Whoever, except in the case provided for by section 334, voluntarily causes hurt, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both."
31. The facts of the case have already been noticed earlier, here, I would like to only focus on the evidence that has been adduced by the prosecution.
32. To bring home the guilt of the accused persons, the prosecution has examined 14 witnesses.
FIR no. 206/2013 State v. Faheem & Anr. Page 12 of 42 Digitally signed by DR DR RAKESH
RAKESH KUMAR
Date: 2024.03.11
KUMAR 16:45:11 +0530
33. PW1 Mohd. Jahid is the complainant/injured, who deposed that on 25.05.2013, at about 05:30 PM, a quarrel of his brother Zakir and his father had taken place with accused Faheem and his father Allauddin. It is further deposed by PW1 Mohd. Jahid that his brother Zakir and his father went to police post Sri Niwas Puri and from there, they went to hospital. It is further deposed by PW1 Mohd. Jahid that on the same day at about 08:25 PM, when he was present at his house, Smt. Naseem, mother of accused persons, Faheem and Wasim had come to his house along with accused persons, Faheem, Wasim, Noor Mohd. Irshad, Abid and Nadeem and they all started abusing him and his family members. It is further deposed by PW1 Mohd. Jahid that on hearing this, when he came out of his house and asked the reason of abusing, accused persons, Noor Mohd., Irshad and Abid caught hold him and Wasim and Nadeem attacked him with surgical blades as a result he had received injury on his left side of his neck and right side of his face and he started bleeding. It is further deposed by PW1 Mohd. Jahid that his mother, namely, Smt. Nawaban and his sister were present in the house and his mother came out to save him from the accused persons and their associates, however, they also gave beatings to his mother with kick and fist blows and they ran away from the spot. It is further deposed by PW1 Mohd. Jahid that he had made a call at 100 number but police did not come, so, he went to the police post Sri Niwas Puri where police took him to AIIMS for his medical examination, recorded his statement (Ex.PW1/A), bearing his signature at point A. PW1 Mohd. Jahid further deposed that accused persons Faheem and Wasim were present in the court FIR no. 206/2013 State v. Faheem & Anr. Page 13 of 42 Digitally signed by DR DR RAKESH RAKESH KUMAR Date: 2024.03.11 KUMAR 16:45:17 +0530 that day and he could identify other assailants who were not present in the court that day.
34. It is further deposed by PW1 Mohd. Jahid that he was not relieved by the police and detained in the case which was got registered by the accused persons. It is further deposed by PW1 Mohd. Jahid that he had handed over his blood-stained shirt and handkerchief to the police and his father had also handed over his shirt to the police in the Court which seized by the police vide seizure memo (Ex.PW1/B), bearing his signature at point-A. During the examination of PW1 Mohd. Jahid, MHC(M) produced one envelope duly sealed with the seal of FSL, which was opened and two blood-stained shirts (Ex. P1 & shirt of his father is Ex. P3) and one blood-stained handkerchief (Ex. P2), were shown to PW1 Mohd. Jahid, who had correctly identified the same and deposed that the check-shirt (Ex. P1) and handkerchief (Ex. P2) belonged to him and the shirt (Ex. P3) belonged to his father.
35. PW1 Mohd. Jahid was cross-examined by the Additional PP for the State as his statement was not in consonance with his previous statement.
36. During his cross-examination conducted on behalf of the State, it is deposed by PW1 Mohd. Jahid that on 26.05.2013, he had stated to the police that he was caught hold by Nadeem, Noor Mohd., Irshad and Abid, and accused Wasim caused injuries to him on both side of his face and neck with surgical blade with intention to kill him. It is further deposed by FIR no. 206/2013 State v. Faheem & Anr. Page 14 of 42 Digitally signed DR by DR RAKESH RAKESH KUMAR Date: 2024.03.11 KUMAR 16:45:22 +0530 PW1 Mohd. Jahid that police had inspected the spot and had prepared the site plan at his instance. It is further deposed by PW1 Mohd. Jahid that accused Wasim was arrested by the police at his instance. It is further deposed by PW1 Mohd. Jahid that accused Wasim had produced the surgical blade with which he had caused injuries to him. It is further deposed by PW1 Mohd. Jahid that police had prepared the sketch (Ex.PW1/C) of blade, bearing his signature at point 'A' and had converted the same in the sealed 'pullanda' and seized it vide seizure memo (Ex.PW1/D) bearing his signature at point 'A'. PW1 Mohd. Jahid has correctly identified the surgical blade (Ex. P4) and deposed that it is the same blade with which the accused Wasim had caused injuries to him. It is further deposed by PW1 Mohd. Jahid that he could not remember all the facts due to lapse of time.
37. During his cross-examination on behalf of the accused persons, it is, inter-alia, deposed by PW1 Mohd. Jahid that police had taken his brother Zakir, his father Allauddin and Faheem to police post Sri Niwas Puri regarding earlier incident. It is further deposed by PW1 Mohd. Jahid that he had informed to the police in his statement on 25.05.2013 that Wasim and Nadeem had caused injuries to him with surgical blade. It is further deposed by PW1 Mohd. Jahid that he did not know when Faheem and Alauddin returned from police post Sri Niwas Puri to their house prior to the incident with him. It is further deposed by PW1 Mohd. Jahid that he was arrested by the police at about 09:00 PM on 25.05.2013 and he was produced in court on next day from where he was sent to judicial custody. PW1 Mohd. Jahid further deposed that his statement was recorded by chowki FIR no. 206/2013 State v. Faheem & Anr. Page 15 of 42 DR Digitally signed by DR RAKESH RAKESH KUMAR Date: 2024.03.11 KUMAR 16:45:29 +0530 In-charge, Rajender Dagar and he had not met the accused persons, Wasim and Faheem after the incident with him till he was sent to judicial custody. Other formal suggestions were denied by him as wrong and incorrect.
38. PW2 Smt. Nababan is the mother of complainant who deposed that on 25.05.2013, at about 05:30 PM, when she was present at her house, Faheem, Wasim, Allauddin had come to her house and they started abusing them. It is further deposed by PW2 Smt. Nababan that her husband and her sons, Zakir and Zahid requested them not to abuse us but they gave them beatings. It is further deposed by PW2 Smt. Nababan that Wasim, Faheem and Allauddin gave beatings to her son Jahid and Wasim caused injury on the neck of her son Jahid with some sharp object in her presence. It is further deposed by PW2 Smt. Nababan that they did not give beatings to her. PW2 Smt. Nababan had correctly identified the accused persons in the Court. During her examination-in-chief, one surgical blade (Ex. P4) from a sealed box was shown to PW2 Smt. Nababan, which was correctly identified by her.
39. During her cross-examination, PW2 Smt. Nababan has, inter-alia, deposed that she did not know whether Faheem had also sustained injury in the quarrel. It is further deposed by PW2 Smt. Nababan that police officials had come to her house and took her husband and son to the police station about 05:30 PM immediately after the quarrel and they have also taken Allauddin and Faheem. It is further deposed by PW2 Smt. Nababan that Wasim was not taken by the police officials. PW2 FIR no. 206/2013 State v. Faheem & Anr. Page 16 of 42 Digitally signed DR by DR RAKESH RAKESH KUMAR Date: 2024.03.11 KUMAR 16:45:41 +0530 Smt. Nababan has denied the suggestion put to her that Nadim instead of Wasim had caused blade injury. It is further deposed by PW2 Smt. Nababan that police had recorded her statement on the same day at night. Other formal suggestions were denied by her as wrong and incorrect.
40. PW3 Mohd. Umar is the father of injured who deposed that on 25.05.2013 at about 05:30 PM, he was present on the first floor of his house and was taking food. It is further deposed by PW3 Mohd. Umar that wife of Iqbal and wife of Saleem, namely, Ruksana had come at his home and they shouted "tumhare ladke Zakir aur Sakib @ Ayyar ko maar rahe hai pehalwan". It is further deposed by PW3 Mohd. Umar that he came down from first floor outside of his house and saw that the persons who were assaulting his sons had fled away from there. It is further deposed by PW3 Mohd. Umar that his son Zakir had informed him that Shabeem (mother of accused Faheem) caught hold his penis and pulled it, thereafter, he called the police at 100 number from his mobile phone 9958283302 and police officials i.e. Dagar (In-charge) and Sub-Inspector Om Prakash had reached the spot along with 4-5 other police officials. It is further deposed by PW3 Mohd. Umar that he was narrated the above- said facts to the police officials who told him to come at police booth Sri Niwas Puri. It is further deposed by PW3 Mohd. Umar that he along with his son Zakir went to police booth but police officers did not listen their concern and they did not take any action on their oral complaint. It is further deposed by PW3 Mohd. Umar that at about 08:00-08:30 PM, when he was present at the police booth, his son Rashid had called him and informed FIR no. 206/2013 State v. Faheem & Anr. Page 17 of 42 Digitally signed by DR DR RAKESH RAKESH KUMAR Date: 2024.03.11 KUMAR 16:45:48 +0530 him that accused Faheem along with his father, mother and two brothers assaulted his son Jahid with the help of a knife and accused Faheem gave knife (blade) blow on the person (neck and chicks) of his son Jahid and accused persons had also assaulted Iqbal while he was trying to rescue his son Jahid from them.
41. It is further deposed by PW3 Mohd. Umar that at about 08:30-08:45 PM, the accused Faheem along with his younger brother and his mother had come at the police booth Sri Niwas Puri. It is further deposed by PW3 Mohd. Umar that he told the mother of accused Faheem, "tune mere ladke ko blade marwa diya do jagah ek gaal par and gardan par aur chalis taanke lage hai" and, thereafter, accused Faheem assaulted him with a key and gave key blow on his head in the presence of the police officials at police booth. It is further deposed by PW3 Mohd. Umar that blood was oozing from his wound and his shirt got blood-stains and he put his handkerchief on his wound. It is further deposed by PW3 Mohd. Umar that thereafter, his son Zakir along with his mother had come at police booth the police took them to the Trauma Centre, AIIMS where they were medically examined. It is further deposed by PW3 Mohd. Umar that he had come to know that the accused persons had also assaulted his wife with 'danda', fists blows and kicks, however, she did not sustain any visible injury. It is further deposed by PW3 Mohd. Umar that they were medically examined at AIIMS vide MLCs and after medical examination, the police officers had taken them to police booth. It is further deposed by PW3 Mohd. Umar that police officers booked him and his son Jahid in a false case and they were taken into custody. It is further deposed by FIR no. 206/2013 State v. Faheem & Anr. Page 18 of 42 DR Digitally signed by DR RAKESH KUMAR RAKESH Date: 2024.03.11 KUMAR 16:45:54 +0530 PW3 Mohd. Umar that on next day, police officers produced them before the Court and he narrated the abovesaid facts to the Court. It is further deposed by PW3 Mohd. Umar that the concerned Court had given direction to the investigating officer for conducting his medical examination and to seize blood- stained cloth and on said direction, PW3 Mohd. Umar was medically examined at AIIMS Hospital on 26.05.2013 and the police officers had seized his blood-stained clothes i.e. handkerchief and shirt vide seizure memo (Ex.PW1/B).
42. It is further deposed by PW3 Mohd. Umar that after releasing from the jail on bail, he filed a complaint against the police officers, Dagar (In-charge) and Sub-Inspector Om Prakash in Court No. 205, Saket Court Complex, however, on the advice of his counsel, he did not pursue the said complaint for the reason that the same might have dismissed. It is further deposed by PW3 Mohd. Umar that they have been acquitted in the said false case which was lodged by the accused persons against them.
43. During his examination-in-chief, PW3 Mohd. Umar had pointed out towards the accused in the Court wearing check shirt and jeans pant and deposed that he was accused Faheem and he had asked the name of the accused from his son who was present outside the court. PW3 Mohd. Umar further deposed that he did not know the name of accused present in court. PW3 Mohd. Umar further deposed that his son had narrated the name of the accused as Wasim and he did not know the name of the accused who was present in the court, however, the accused along with his family members was residing in his FIR no. 206/2013 State v. Faheem & Anr. Page 19 of 42 Digitally signed by DR RAKESH DR RAKESH KUMAR KUMAR Date: 2024.03.11 16:46:00 +0530 neighbourhood and he was one of the assailants. PW3 Mohd. Umar correctly identified the accused by his face and it was observed by the court that the name of the accused was Wasim. It is further deposed by PW3 Mohd. Umar that the name of the father of accused is Allauddin and he could identify Allauddin if shown to him, however, the accused Allauddin had died.
44. PW3 Mohd. Umar further deposed that the police officials had booked both the parties in the cases and it was observed by the Court that the identity of the accused Faheem was not disputed as he was exempted from his personal appearance.
45. It is further deposed by PW3 Mohd. Umar that he could identify the remaining accused persons, namely, Shabeem (mother of accused Faheem) and Nadeem but they have not been charge-sheeted by the investigating officer, however, they were involved in the incident and assaulted them in the above-said manner.
46. PW3 Mohd. Umar further deposed that the accused present in the court, had assaulted him with a key and he had also assaulted his son Jahid with the help of a blade as narrated.
47. It is further deposed by PW3 Mohd. Umar that he could identify the case property i.e. his handkerchief and his shirt, if shown to him. During his examination-in-chief, MHC(M) had produced the sealed 'pullanda' duly sealed with the court seal which was broken with the permission of the court and the case FIR no. 206/2013 State v. Faheem & Anr. Page 20 of 42 Digitally signed by DR DR RAKESH RAKESH KUMAR Date: 2024.03.11 KUMAR 16:46:06 +0530 property i.e. the blood-stained shirt and one blood-stained handkerchief were taken out and shown to the witness. Having seen the same, PW3 Mohd. Umar had identified his shirt (Ex. P3) and handkerchief (Ex. P2) and he had correctly identified the shirt of his son (Ex. P1) which was also seized by the police officer.
48. In his cross-examination, PW3 Mohd. Umar has, inter-alia, admitted that accused persons had filed FIR against him on the same day of the present incident. PW3 Mohd. Umar further deposed that the accused persons had not sustained any injuries in that incident. PW3 Mohd. Umar further deposed that he was present at the police chowki when Zahid had sustained injuries. PW3 Mohd. Umar admitted that Faheem and Allaudin were present with him at the police chowki when Jahid had sustained injury. PW3 Mohd. Umar further admitted that he had sustained injury in the present case on his head inflicted by the accused (PW3 Mohd. Umar had pointed out towards accused Waseem and JCL) and he had sustained injuries inside the police post. Other formal suggestions denied by him as wrong and incorrect.
49. PW4 Sub-Inspector (Retired) Om Prakash deposed that on 20.09.2013, the present case file was handed over to him for further investigation and after going through the file, he had prepared the charge-sheet and filed the same in the Court.
50. In his cross-examination, PW4 Sub-Inspector Om Prakash deposed that he had knowledge that Mohd. Umar and FIR no. 206/2013 State v. Faheem & Anr. Page 21 of 42 DR Digitally signed by DR RAKESH KUMAR RAKESH Date: 2024.03.11 KUMAR 16:46:11 +0530 Abid were the history-sheeter of the area of the police station Amar Colony at that time. PW4 Sub-Inspector Om Prakash further deposed that he did not know whether the accused persons were involved in any other criminal cases or not. PW4 Sub-Inspector Om Prakash further deposed that he had not done any investigation in this matter. Other formal suggestions were denied by him as wrong and incorrect.
51. PW5 Salim deposed that he did not remember the exact date, month and year of the incident and on the next day of incident, he had come to know from some persons that a quarrel had taken place between Gunga's family and Khalifa, however, he did not know anything about this case. PW5 Salim had correctly identified both accused persons in the court.
52. PW5 Salim was cross-examined by Additional Public Prosecutor for the State with the permission of the court as he was resiling from his previous statement. During his cross- examination on behalf of State, he had denied to have stated to the police in his statement (Mark 'X') that on 25.05.2013, at about 05:30 PM, he was present at his home and came to know that the quarrel took place between Gunge Pahlwan and his son, namely, Jahid with Allaudin and his son, namely, Faheem and in the said incident, they had sustained injuries and were shifted to hospital. PW5 Salim was confronted with the portion A to Al in statement Mark 'X' where it was so recorded. PW5 Salim had denied to have stated to the police in his statement (Mark 'X') that on the same day at about 08:30 PM, again a quarrel had taken place between Gunge Pahlwan and his son, namely, Jahid with FIR no. 206/2013 State v. Faheem & Anr. Page 22 of 42 Digitally signed DR by DR RAKESH RAKESH KUMAR Date: 2024.03.11 KUMAR 16:46:17 +0530 Allaudin and his son, namely, Faheem and they sustained injuries and they were shifted to the hospital. PW5 Salim further deposed that many public persons had gathered at the spot and he was also present there and Noor Mohd. and Ishad were also there and he was confronted with the portion B to B-1 in statement Mark 'X' where it is so recorded. Other formal suggestions were denied by him as wrong and incorrect. PW5 Salim was not cross- examined by counsel for the accused persons.
53. PW6 Iqbal deposed that he did not remember the exact date, month and year of the incident on which day, he was present at his house and on the next day of the incident, he had come to know from some persons that a quarrel had taken place between Gunga's family and Khalifa. It is further deposed by PW6 Iqbal that he did not know anything about this case. PW6 Iqbal has correctly identified both accused persons in the court.
54. PW6 Iqbal was cross-examined by Additional Public Prosecutor for the State with the permission of court. During his cross-examination, PW6 Iqbal deposed that he had not stated to the police in his Statement (Mark 'Y') that on 25.05.2013 at about 05:30 PM, he was present at his home and the quarrel took place between Gunge Pahlwan and his son namely Jahid with Allaudin and his son namely Faheem and in the said incident they sustained injuries and they were shifted to hospital and he was confronted with the portion A to Al in statement Mark 'Y' where it was so recorded. DR Digitally signed by DR RAKESH KUMAR RAKESH Date: 2024.03.11 KUMAR 16:46:23 +0530 FIR no. 206/2013 State v. Faheem & Anr. Page 23 of 42
55. PW6 Iqbal further deposed that he had not stated to the police in his statement (Mark 'Y') that on the same day at about 08:30 p.m., again, a quarrel had taken place between Gunge Pahlwan and his son namely Jahid with Allauddin and his son namely Faheem and they sustained injuries and they went to hospital. PW6 Iqbal further deposed that many public persons were gathered at the spot and he was also present there and Noor Mohd. and Ishad were also there and PW6 Iqbal was confronted with the portion B to B1 in statement Mark 'Y' where it is so recorded. Other formal suggestions were denied by him as wrong and incorrect.
56. PW7 Sub-Inspector (retired) Phool Singh deposed that on 26.05.2013, Sub-Inspector Phool Singh along with Sub- Inspector Rajender had gone to Saket Court for production of accused Wasim in the Court. It is further deposed by PW7 Sub- Inspector Phool Singh that PW3 Mohd. Umar and his son were also present in the court and he had a conversation with them and the clothes worn by them were having blood-stains. It is further deposed by PW7 Sub-Inspector Phool Singh that after production of accused Wasim in the court, he was sent to lock-up and Mohd. Umar and Zahid had handed over two shirts and one handkerchief to Sub-Inspector Rajender, which were seized by Sub-Inspector Rajender in a white 'pullanda' and sealed the same with the seal of RS vide seizure memo (Ex.PW1/B) bearing his signature at point 'B' and after seizure of the case property, Sub- Inspector Rajender handed over the seal to him. It is further deposed by PW7 Sub-Inspector Phool Singh that the case properties were deposited in the 'malkhana' by Sub-Inspector FIR no. 206/2013 State v. Faheem & Anr. Page 24 of 42 DR Digitally signed by DR RAKESH RAKESH KUMAR Date: 2024.03.11 KUMAR 16:46:28 +0530 Rajender and his statement was also recorded under section 161 Cr.PC. This witness was not cross-examined by the defence counsel.
57. PW8 Mirza Fahd Baig deposed that he was working as Executive in Capgemini, he did not remember the exact date but in the month of May, 2013 and on the day of incident, Abid had been playing cricket from Mirza Fahd Baig Team Panther and on that day, they were playing cricket at IIT University at Hauz Khas. It is further deposed by PW8 Mirza Fahd Baig that he did not know anything about this case and would like to state that Abid was present in the playground while this incident had taken place. It is further deposed by PW8 Mirza Fahd Baig that he was called by the police at police station Amar Colony and his statement was recorded there. This witness was also not cross- examined by the defence counsel.
58. PW9 Sub-Inspector (Retired) Balbir Sharma deposed that on 25.05.2013, on receiving DD No. 27 regarding an information of quarrel at 53/3, Gandhi Camp, he along with Constable Jugesh went to the spot where he met the injured, Jahid and his mother and the injured Jahid had injuries on both sides of his neck. It is further deposed by PW9 Sub-Inspector Balbir Sharma that he sent the injured to Trauma Center, AIIMS along with Constable Jugesh and he also went to the hospital and collected the MLCs of the injured persons, Jahid and his mother. It is further deposed by PW9 Sub-Inspector Balbir Sharma that injured Jahid was declared fit for statement by the doctor and his statement of the injured (Ex. PW1/A) was recorded, 'rukka' (Ex.
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PW9/A) was prepared and handed over to Constable Jugesh for registration of FIR and after registration of the FIR, further investigation was marked to Sub-Inspector R.S Dagar.
59. In the cross-examination, PW9 Sub-Inspector Balbir Sharma has, inter-alia, deposed that injured had stated that injuries had been inflicted by JCL 'N' with the help of surgical blade and he had not recorded the statement of Nawaban i.e. second injured of the alleged incident. Other formal suggestions were denied by him as wrong and incorrect.
60. PW10 Inspector R.S. Dagar deposed that on 25.05.2013, Assistant Sub-Inspector Balbir had received DD No.27 and 29, police post Sri Niwas Puri, regarding a quarrel at Gandhi Camp, S.N. Puri near Masjid and after registration of the present case, the investigation of the present case was marked to him. It is further deposed by PW10 Inspector R.S. Dagar that he along with complainant went to the spot, prepared the site plan (Ex.PW10/A) at the instance of the complainant, and recorded the supplementary statement of the complainant.
61. It is further deposed by PW10 Inspector R.S. Dagar that on 26.05.2013, he along with complainant were present at Gandhi Camp, Sri Niwas Puri, where at the instance of the complainant, he had apprehended the accused Wasim, recorded his disclosure statement (Ex.PW10/B), arrested him vide arrest memo (Ex.PW10/C), conducted his Personal Search (Ex.PW10/D) and at the instance of accused Wasim, they went into the Gali S-53/136, Gandhi Camp, S. N. Puri, New Delhi, FIR no. 206/2013 State v. Faheem & Anr. Page 26 of 42 Digitally signed DR by DR RAKESH RAKESH KUMAR Date: 2024.03.11 KUMAR 16:46:50 +0530 where the accused Wasim brought the weapon of offence used in commission of crime i.e. surgical blade from an open space near street. It is further deposed by PW10 Inspector R.S. Dagar that he had prepared the Sketch Memo (Ex.PW1/C) of the surgical blade and found its total length 4.4 cm. and kept the surgical blade in a match box and with the help of the clothes prepared a 'pullanda', sealed it with the seal of 'RS', and had taken into police possession vide seizure memo (Ex.PW1/D). It is further deposed by PW10 Inspector R.S. Dagar that they came back to police station along with accused and accused was sent to the lock up after conducting his medical examination and case property was deposited in the 'malkhana'.
62. It is further deposed by PW10 Inspector R.S. Dagar that on 26.05.2013, complainant had handed over blood-stained checkdar black and white colour shirts belonging to the complainant and his father and one handkerchief to him in the Saket Court Complex. It is further deposed by PW10 Inspector R.S. Dagar that he had prepared a 'pullanda', sealed the same with the seal of 'RS', handed over to Head Constable Phool Kumar and seized the same vide seizure memo (Ex.PW1/B).
63. It is further deposed by PW10 Inspector R.S. Dagar that on 28.05.2013, weapon of offence with relevant documents was sent to Trauma Center, AIIMS for obtaining subsequent opinion if injury had been caused by the recovered surgical blade and, thereafter, he had received reply report no. 85 (Ex. A9).
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64. It is further deposed by PW10 Inspector R.S. Dagar that he had formally arrested co-accused Allaudin vide arrest memo (Ex.PW10/E) on 30.05.2013, and formally arrested co- accused Faheem vide arrest memo (Ex.PW10/F) on 03.06.2013, and had examined the Shaled Akram and Mirza Fahad Beg on 12.06.2013 and recorded their statement under section 161 Cr.P.C.
65. It is further deposed by PW10 Inspector R.S. Dagar that on 12.07.2013, he had collected the blood sample of complainant Jahid from Trauma Center, AIIMS through Head Constable Devender and, thereafter, he had sent clothes and blood sample of the complainant to FSL for expert opinion.
66. It is further deposed by PW10 Inspector R.S Dagar that on 20.07.2013, he had examined the eye witnesses, namely, Salim and Iqbal and recorded their statements under section 161 Cr.P.C. It is further deposed by PW10 Inspector R.S. Dagar that during the course of the investigation, he had also prepared pointing out memo (Ex.PW10/F) at the instance of accused Faheem bearing his signature at Point 'A'. It is further deposed by PW10 Inspector R.S. Dagar that he had also collected further opinion (Ex. A9) on the opinion no.85, and doctor opined the opinion (Ex. A10) as serial no.119, and Blood sample of the complainant was seized vide seizure memo (Ex.PW10/G). It is further deposed by PW10 Inspector R.S. Dagar that he had also recorded the disclosure statement of accused Faheem (Ex.PW10/H), bearing his signature at Point 'A'. It is further deposed by PW10 Inspector R.S. Dagar that after that he was FIR no. 206/2013 State v. Faheem & Anr. Page 28 of 42 Digitally signed by DR DR RAKESH RAKESH KUMAR Date: 2024.03.11 KUMAR 16:47:03 +0530 transferred from the police station and handed over the case file to MHCR. PW10 Inspector R.S. Dagar had correctly identified the accused Wasim and Faheem in the court and he further deposed that the case properties i.e. shirts are already (Ex. P1 and Ex. P2), handkerchief (Ex. P3) and surgical blade (Ex. P4).
67. It is further deposed by PW10 Inspector R.S. Dagar that during investigation, JCL 'N' was found juvenile and his PIR had been prepared separately.
68. In his cross-examination, PW10 Inspector R.S. Dagar further deposed that investigation of this case was marked to him on 25.05.2013 and he had recorded the statements of witnesses various times. PW10 Inspector R.S. Dagar further deposed that there was another FIR No. 205/13 in which family of the complainant was accused and Allaudin and Faheem sustained injuries. Other formal suggestions were denied by him as wrong and incorrect.
69. PW11 Sunita Gupta is Senior Scientific Officer, (Biology) FSL, Rohini who deposed that on 31.01.2014, she had received two parcels having seal of 'RS' which were received in FSL Office on 26.07.2013. It is further deposed by PW11 Sunita Gupta that she had opened both the parcels and conducted biological and serological examination. It is further deposed by PW11 Sunita Gupta that parcel 1 was containing two shirts and one handkerchief having brownish stains whereas second parcel was containing a tube having foul smell stated to be containing blood sample. It is further deposed by PW11 Sunita Gupta that FIR no. 206/2013 State v. Faheem & Anr. Page 29 of 42 DR Digitally signed by DR RAKESH RAKESH KUMAR Date: 2024.03.11 KUMAR 16:47:10 +0530 the blood was detected on both the shirts and handkerchief and Blood group of 1A (shirt) was found 'O', IB (shirt) was found 'B' and IC (handkerchief) was found 'B' and no reaction was detected in sample '3'. It is further deposed by PW11 Sunita Gupta that she had prepared her detailed report (Ex.PW11/A) bearing No. 2013/B-5994 with BIO No.792/13 dated 31.01.2014, (running in two pages) bearing her signature at point A and B, respectively. This witness was not cross-examination by the defence counsel.
70. PW12 Sub-Inspector Devender Singh deposed that on 12.07.2013, he had joined the investigation along with investigating officer and on the directions of investigating officer, he had gone to Trauma Center, AIIMS where he had collected blood sample of injured Jahid. It is further deposed by PW12 Sub-Inspector Devender Singh that doctor had handed over a plastic jar containing blood sample of injured Jahid duly sealed with the seal of Forensic Medicines JPNATC along with sample seal. It is further deposed by PW12 Sub-Inspector Devender Singh that he had brought the blood sample and seal in the police station and handed over the same to investigating officer and investigating officer seized the same vide seizure memo (Ex.PW10/G), bearing his signature at point A. It is further deposed by PW12 Sub-Inspector Devender Singh that no tampering was made in the exhibits.
71. In his cross-examination, PW12 Sub-Inspector Devender Singh admitted that blood sample was not obtained by the doctor in his presence and denied the suggestion that he never FIR no. 206/2013 State v. Faheem & Anr. Page 30 of 42 Digitally signed DR by DR RAKESH RAKESH KUMAR Date: 2024.03.11 KUMAR 16:47:17 +0530 went to the hospital and collected the blood sample. Other formal suggestions were denied by him as wrong and incorrect.
72. PW13 Head Constable Jugesh Rai deposed that on 25.05.2013, he was on emergency duty and on receiving the DD No. 27 and 29 police post Sri Niwas Puri regarding quarrel by Assistant Sub-Inspector Balbir Sharma, he along with Assistant Sub-Inspector Balbir went to the spot i.e., S- 53/344, Gandhi Camp, Sri Niwas Puri where they met injured Jahid and his mother Nawaban and injured had sustained injury on his face he had taken injured persons to Trauma Center, AIIMS and admitted them in the hospital. It is further deposed by PW13 Head Constable Jugesh Rai that Assistant Sub-Inspector Balbir Sharma had also come there and recorded statement of injured, Jahid, prepared 'rukka' and handed over the same to him for registration of FIR. It is further deposed by PW13 Head Constable Jugesh Rai that he had gone to police station, got the FIR registered, came back on the spot and handed over the copy of FIR and original 'rukka' to the investigating officer, Sub-Inspector R. S. Dagar as further investigation was marked to him.
73. It is further deposed by PW13 Head Constable Jugesh Rai that the investigating officer had prepared site plan at the instance of complainant and apprehended Wasim and after interrogation, arrested by him vide arrest memo (Ex.PW10/C) and conducted personal search vide memo (Ex.PW10/D) and also recorded disclosure statement (Ex.PW10/B). It is further deposed by PW13 Head Constable Jugesh Rai that at the instance of the accused, they had also recovered the match box containing the FIR no. 206/2013 State v. Faheem & Anr. Page 31 of 42 DR Digitally signed by DR RAKESH KUMAR RAKESH Date: 2024.03.11 KUMAR 16:47:23 +0530 surgical blade i.e. weapon of offence and the investigating officer had prepared 'pullanda', sealed it with the seal of 'RS', seized the same vide seizure memo (Ex. PW1/D) and after use of the seal, it was handed over to Head Constable Jugesh Rai. It is further deposed by PW13 Head Constable Jugesh Rai that the investigating officer had also prepared the sketch memo of the surgical blade (Ex.PW1/C) the total length of which was 4.4 cm and thereafter, they went to the police station and case property was deposited in 'malkhana' and the investigating officer had recorded his statement.
74. It is further deposed by PW13 Head Constable Jugesh Rai that on 30.05.2013, he had again joined the investigation along-with the investigating officer and was present in the police post Sri Niwas Puri. It is further deposed by PW13 Head Constable Jugesh Rai that the accused Allauddin came in the police post Sri Niwas Puri and the investigating officer interrogated the accused Allauddin, arrested him vide arrest memo (Ex.PW10/E) and thereafter, the investigating officer had recorded his statement.
75. It is further deposed by PW13 Head Constable Jugesh Rai that on 03.06.2013, he had again joined the investigation along-with the investigating officer and the accused Faheem came in police post Sri Niwas Puri where the investigating officer interrogated him and arrested him vide arrest memo (Ex. PW10/F) and recorded his disclosure statement vide memo (Ex.PW10/H) and prepared pointing out memo (Ex.PW10/G) of place occurrence and thereafter, the FIR no. 206/2013 State v. Faheem & Anr. Page 32 of 42 Digitally signed by DR DR RAKESH RAKESH KUMAR Date: 2024.03.11 KUMAR 16:47:30 +0530 investigating officer recorded his statement. PW13 Head Constable Jugesh Rai has correctly identified both the accused persons in the Court. He also correctly identified the surgical blade Ex. P4.
76. In his cross-examination, PW13 Head Constable Jugesh Rai deposed that injured Jahid mentioned the name of accused Wasim, who had caused injuries to him in his complaint/FIR. (Confronted with the contents of FIR wherein name of Nadeem has been mentioned.) Other formal suggestions were denied by him as wrong and incorrect.
77. PW14 Jakir deposed that he used to work with his father in shop no. 64 at Sabzi Mandi Okhla and on 25.05.2013 when he was coming from his shop at about 05:15 PM, he reached at his house and found that accused Wasim, Faheem Kadim. JCL 'N' and their parents namely Allauddin and Nasim were beating his younger brother Sakir. It is further deposed by PW14 Jakir that when he asked them the reason, they started beating him as well. It is further deposed by PW14 Jakir that the mother of the accused persons bit him on his "pesab ki jagah". It is further deposed by PW14 Jakir that in the meanwhile, his neighbours, namely, Ruksana and Shabbo also came there and told the incident to his parents and his father and mother also came there and accused persons started beating them also. It is further deposed by PW14 Jakir that his father called at 100 number and police came there and took all of them, namely, Faheem, Allauddin including PW14 Jakir and his father to police post Sri Niwas Puri. It is further deposed by PW14 Jakir that FIR no. 206/2013 State v. Faheem & Anr. Page 33 of 42 Digitally signed DR by DR RAKESH KUMAR RAKESH Date:
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accused persons again attacked on his family members at about 08:15 PM and they received information in the police station from his brother, namely, Jahid, who had also sustained injuries caused by the accused persons and came to police post Sri Niwas Puri. It is further deposed by PW14 Jakir that blood was oozing from his body.
78. It is further deposed by PW14 Jakir that the accused Wasim had also come in the police post Sri Niwas Puri and hit on the head of his father with some heavy object. It is further deposed by PW14 Jakir that his brother received 42 stitches, however, police had detained them and set the accused persons free. PW14 has correctly identified the accused persons in the court.
79. PW14 Jakir further deposed in his cross-examination that he was also booked in one case bearing FIR no. 205/13 on the same day. Other formal suggestions were denied by him as wrong and incorrect.
80. In defence, the accused Mohd. Faheem examined himself as only defence witness. It is deposed that on 25.05.2013 at about 03:00-03:30 p.m., younger brother of Zakir had beaten his younger brother Kadeem. It is further deposed by DW1 Mohd. Faheem that when he made a complaint to Zakir in this regard, he started quarrelling with him. It is further deposed by DW1 Mohd. Faheem that Faheem and Zakir had attacked him with a knife due to which he got injuries on his face, below left eye. It is further deposed by DW1 Mohd. Faheem that he had FIR no. 206/2013 State v. Faheem & Anr. Page 34 of 42 Digitally signed DR by DR RAKESH KUMAR RAKESH Date:
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made complaint to 100 number and PCR van had come to the spot and took him and his father to hospital for MLC where his brother Wasim had also come at 07:00 PM in the hospital and the accused person were sent to police station. It is further deposed by DW1 Mohd. Faheem that Faheem had remained in the hospital till about 10:00 PM and after that he came to police station Sri Niwas Puri. It is further deposed by DW1 Mohd. Faheem that he remained in the police station till morning then he came back to his house and the certified copy of MLC and other documents are Ex.DW1/1 (colly for 13 pages).
81. During cross-examination, DW1 Mohd. Faheem has, inter-alia, deposed that he came to know about beating of his younger brother after 5 minutes. DW1 Mohd. Faheem further deposed that Zakir was stopped by him in the street to make complaint. DW1 Mohd. Faheem further deposed that he had not seen from where Zakir had taken out the knife. DW1 Mohd. Faheem further deposed that it was not knife it was something like a surgical blade but he cannot tell its size or other description. Other formal suggestions were denied by him as wrong and incorrect.
82. In the light of the charge framed against accused and the arguments advanced before the court, following are the points for determination:
1. Whether the accused persons, in furtherance of their common intention with JCL Nadeem (facing trial before JJB), have done any act with such intention or knowledge and under such circumstances that, if they by that act caused death they FIR no. 206/2013 State v. Faheem & Anr. Page 35 of 42 DR Digitally signed by DR RAKESH RAKESH KUMAR Date: 2024.03.11 KUMAR 16:47:48 +0530 would be guilty of murder, caused hurt to the complainant Mohd.
Jahid.
2. Whether the accused persons, in furtherance of their common intention with JCL Nadeem (facing trial before JJB), have voluntarily caused hurt on the person of Ms. Nababan by beating her with fists and kicks.
DISCUSSION ON THE POINTS FOR DETERMINATION
83. This case FIR No.206 dated 25.05.2013 was registered in the police station Amar Colony under Sections 307/34 IPC on the statement/Rukka (Ex.PW1/A) of one Jahid. A perusal of FIR (Ex. A1) and Rukka (Ex.PW1/A) reveals that the complainant had not named the accused Faheem as one of the offenders in his first statement (Ex.PW1/A). In his statement under Section 161 Cr.P.C. recorded by the investigating officer of this case also, the complainant Jahid had not named the accused Faheem to be the person who attacked him with the surgical blade, whereas, he has stated that he was caught hold by Nadeem, Noor Mohd., Irshad and Abid and Wasim had attacked him with surgical blade on his both sides of face and the neck. During trial, the complainant Mohd. Jahid (PW1) has deposed that on the day of incident Smt. Naseem, mother of the accused Fahim and Wasim had come to his house with the accused persons, Faheem, Wasim, Noor Mohd., Irshad, Abid and Nadim and they all started abusing him and his family members and on hearing that, when he had come out of his house, the accused persons Noor Mohd, Irshad and Abid caught hold him and Wasim FIR no. 206/2013 State v. Faheem & Anr. Page 36 of 42 Digitally signed by DR DR RAKESH RAKESH KUMAR Date: 2024.03.11 KUMAR 16:47:54 +0530 and Nadim attacked him with surgical blade as a result of which he had received injuries on his left side of neck and right side of face. Here also, the complainant has not mentioned the name of the accused Faheem to be the person who had attacked him. As regards the fist and kick blows to his mother, the complainant has deposed that they had also given beatings to his mother but he has not named the accused Faheem to be the person who gave fist and kick blows to his mother.
84. It is important to note here that the complainant Jahid (PW1) was cross-examined on behalf of the State, with the permission of this court as his statement was not in consonance with his previous statement.
85. During his cross-examination on behalf of the State also, he has admitted it to be correct that he had stated to the police that he was caught hold by Nadeem, Noor Mohd, Irshad and Abid and that accused Wasim caused injuries to him on both sides of his face and neck by surgical blade with intention to kill him. During his cross-examination on behalf of the State also, neither a question was put to him on behalf of the State that it was the accused Faheem who gave injuries to him with the surgical blade nor the witness had said so.
86. During the cross-examination of the complainant Jahid (PW1) done by counsel for the accused also, he has admitted that he had stated to the police in his statement on 25.05.2013 that Wasim and Nadeem had caused injuries to him FIR no. 206/2013 State v. Faheem & Anr. Page 37 of 42 Digitally signed by DR DR RAKESH RAKESH KUMAR Date: 2024.03.11 KUMAR 16:48:00 +0530 with surgical blade. However, the name of the accused Faheem was not mentioned by him as the offender.
87. It is also important to note here that the complainant has named five persons, namely, Noor Mohd., Irshad, Wasim, Abid and Nadeem, brother of Faheem as the offenders, out of which three persons, namely, Noor Mohd., Irshad and Wasim were not found to be involved in the commission of offence during investigation by the investigating officer and names of these three persons were kept in Khana No. 12.
88. In both the statements of the complainant, he had not named Faheem to be the offender but he had stated that it was Wasim who attacked him with surgical blade.
89. In his first statement/Rukka Ex.PW1/A as well as during his evidence, the complainant (PW1) has stated the time of incident at 08:20 PM, however, his mother, Smt. Nababan (PW2) had stated that incident had taken place at 05:30 PM.
90. Further, during the cross-examination of PW1 Jahid done on behalf of the State, he has admitted that the accused Wasim was arrested by the police at his instance and the accused Wasim had produced the surgical blade with which he had caused injuries to the complainant. PW1 Jahid has also admitted that the police prepared the sketch of blade (Ex.PW1/C) bearing his signature at point A and converted the blade in a sealed 'pullanda' and seized it vide seizure memo (Ex PW1/D) bearing his signature at point 'A'. When the surgical blade (Ex. P4) was FIR no. 206/2013 State v. Faheem & Anr. Page 38 of 42 DR Digitally signed by DR RAKESH KUMAR RAKESH Date: 2024.03.11 KUMAR 16:48:06 +0530 shown to the complainant (PW1), he had correctly identified it to be the same with which the accused Wasim had caused injuries to him. The said surgical blade (Ex. P4) was sent to the Department of Forensic Medicine and Toxicology, JPNA Trauma Centre, AIIMS, New Delhi for their opinion regarding the weapon of offence. The report (Ex. A9) given by the Department of Forensic Medicine and Toxicology, AIIMS states, "After perusal of above- mentioned documents and examination of the alleged weapon, I am of the considered opinion that the injuries mentioned in the MLC cannot be possible by the alleged weapon." Therefore, in the light of Forensic Report (Ex. A9) regarding the weapon of offence, the injuries mentioned in the MLC could not be possible by the surgical blade (Ex. P4) identified by the complainant to be the weapon of offence during his evidence.
91. PW2 Smt. Nababan has also in her evidence named the accused Wasim but also added Fahim and Allaudin as the offenders. The time of incident as alleged in the FIR and in the statement of the complainant has been mentioned as 08:20 PM. However, PW2 Smt. Nawaban has mentioned in her testimony the time of incident to be 05:30 PM. In the cross-examination of PW2 Smt. Nawaban also, she has admitted that the police had come to her house and took her husband and son to the police station about 05:30 PM, immediately after the quarrel. PW2 Smt. Nawaban has also deposed that the police had also taken Allauddin and Faheem. As per the testimonies of PW2 Smt. Nawaban, at the time of incident, her husband, Umar was also there. Mohd Umar was examined as PW3. In his testimonies, FIR no. 206/2013 State v. Faheem & Anr. Page 39 of 42 DR Digitally signed by DR RAKESH RAKESH KUMAR Date: 2024.03.11 KUMAR 16:48:12 +0530 PW3 Mohd Umar has stated that at about 08:00-08:30 PM, he was present at the police booth.
92. The accused Faheem has examined himself as DW1 in his defence and took the plea of alibi . During his testimonies, the accused Faheem deposed that on 25.05.2013, at about 03:00- 03:30 PM, younger brother of Zakir had beaten his younger brother Kadeem. When he made a complaint to Zakir in this regard then he started fighting with him. He attacked him with a knife due to which he got injuries on his face, below left eye. He made complaint to 100 number. PCR came to the spot and took him and his father to hospital for MLC where his brother Wasim came at 07:00 PM in the hospital and the accused person were sent to police station. He had remained in the hospital till about 10:00 PM and after that he came to PC Sri Niwas Puri. He remained in the police station till morning then he came back to his house. The certified copy of MLC and other documents is exhibited as Ex. DW1/1 (colly for 13 pages). A perusal of certified copies of MLC (Ex. DW1/1 colly) clearly reveals that the accused Faheem was declared fit for statement at 08:27 PM on 25.05.2013 and his father Allaudin was declared fit for statement at 08:28 PM on 25.05.2013.
93. As per the statement/Rukka (Ex.PW1/A), the incident had taken place in front of the house of the complainant at Okhla Sabzi Mandi, New Delhi on 25.05.2013 at about 08:20 p.m. Whereas, in the light of the MLC (Ex. DW1/1 colly), the accused Faheem was at Trauma Centre, AIIMS at 08:27 p.m. on that day, therefore, I am of the considered opinion that it is highly FIR no. 206/2013 State v. Faheem & Anr. Page 40 of 42 DR Digitally signed by DR RAKESH KUMAR RAKESH Date: 2024.03.11 KUMAR 16:48:18 +0530 improbable that the accused Faheem was present at the time and place of the alleged incident and the testimonies of PW2 Smt. Nawaban regarding presence of Faheem and Allauddin at the time and place of incident are not worthy of credit and I may hold that she is not a reliable witness.
94. Again, the prosecution has cited names of Salim and Iqbal to be the eye witnesses of the incident. These two persons have been examined by the prosecution as PW5 and PW6. However, these witnesses have not supported the case of the prosecution and they turned hostile. Both the prosecution witnesses, Salim (PW5) and Iqbal (PW6) have commonly deposed that they do not know anything about this case. Even, from the cross-examination of these witnesses by the Public Prosecutor for the State, nothing has come out which supports the case of the prosecution and their testimonies remained of no use for the prosecution.
95. Next comes the question of involvement of the accused Wasim in the offence. Here, the attention of the court has been drawn by the Learned Additional Public Prosecutor as well as Learned Counsel for the accused persons towards opinion of the Department of Forensic Medicine and Toxicology, AIIMS. As noticed above, as per the Forensic opinion (Ex. A9), the injuries mentioned in the MLC could not be possible by the surgical blade.
96. Furthermore, an opinion was also sought from the Department of Forensic Medicine and Toxicology, AIIMS, if the FIR no. 206/2013 State v. Faheem & Anr. Page 41 of 42 Digitally signed DR by DR RAKESH RAKESH KUMAR Date: 2024.03.11 KUMAR 16:48:24 +0530 injuries can be self-inflicted. The opinion (Ex A10) in this regard has been given by the Department. Forensic opinion (Ex. A10) states, "after perusal of above available documents and facts, I am of the considered opinion that laceration usually are not self- inflicted, however, possibility of self-infliction cannot be ruled out."
97. In the light of evidence produced on behalf of the prosecution, I am of the considered opinion that the testimonies of prosecution witnesses are full of material contradiction and the prosecution has miserably failed to bring home the accusations made against the accused persons. On the other hand, the accused persons have been successful in proving their defence and in demolishing the case of the prosecution.
98. In the light of above discussion and the reasons stated above, the accused persons are acquitted of the charges framed against them.
99. Case file be consigned to record room, after completion of other necessary legal formalities in this regard.
Digitally signed by DR RAKESH DR KUMAR
Pronounced in the Open Court RAKESH Date:
On 11.03.2024 2024.03.11
KUMAR 16:48:33
+0530
(DR. RAKESH KUMAR)
ADDL. SESSIONS JUDGE (FTC - 02)
SOUTH EAST DISTRICT
SAKET COURTS : NEW DELHI
FIR no. 206/2013 State v. Faheem & Anr. Page 42 of 42