Delhi District Court
Sc No.48/3/14 Fir No. 180/2011 Ps Mandir ... vs Rafikul Etc. Page No.1 Of 42 on 16 December, 2015
IN THE COURT OF SHRI AMIT BANSAL
ADDITIONAL SESSIONS JUDGE04, NEW DELHI DISTRICT
PATIALA HOUSE COURTS, NEW DELHI
Unique I D No. : 02403R0057562012
S.C. No. : 48/3/14
FIR No. : 180/2011
PS: : Mandir Marg
U/S: : 186/353/332/308/34 IPC
State
Versus
1.Rafikul
s/o Sh. Fajul Rehman
r/o V. Kalaganj, PO Kunia,
PS Chapra, Distt Dinaspur,
West Bengal.
2. Abdul Jabbar
s/o Sh. Fzaruddin
r/o V. Boknawand, PO Charu Dhoriya,
PS Chodra, Distt Uttar Dinaspur,
West Bengal.
3.Feruddin
s/o Sh. Sharifuddin
SC No.48/3/14 FIR NO. 180/2011 PS Mandir Marg State Vs Rafikul etc. Page No.1 of 42
r/o Village Hosiyagaj,
PO Narayan Pur, PS Copra,
Distt. Uttar Dinaspur,
West Bengal.
4. Anarul
s/o Sh. Sharifuddin
r/o Village Hosiyagaj,
PO Narayan Pur, PS Copra,
Distt. Uttar Dinaspur,
West Bengal. .........Accused persons.
Date of receipt of file in this Court : 07.04.2014
Date when arguments were heard : 16.12.2015
Date of judgment : 16.12.2015
JUDGMENT
1 The above said accused persons have been charge sheeted by police station Mandir Marg for commission of offences punishable under section 186/353/332/308/34 IPC.
2 Copy of charge sheet were supplied to the accused by learned Metropolitan Magistrate, Patiala House Courts, New Delhi. The learned SC No.48/3/14 FIR NO. 180/2011 PS Mandir Marg State Vs Rafikul etc. Page No.2 of 42 Metropolitan Magistrate after complying with the provision of section 207 Cr.P.C, committed the case to the court of Sessions as the offence punishable under section 308 IPC is exclusively triable by the Sessions court.
3 Story of the prosecution in brief is that on 20.09.2011 PW4 Ct Ganga Ram (complainant/injured) and PW5 Ct Batti Lal were on duty as beat constables at Division no. 3, Gole market, New Delhi and were present in their beat in police uniform. At about 1.40pm, they heard a message on their beat net wireless set regarding a quarrel behind the speed post building, NDMC, Gole market, New Delhi and therefore, they reached the said spot, where a crowd of labourers had gathered. PW4 and PW5 started to enquire from the labourers regarding the incident and they were at some distance of each other. On enquiry, it was revealed that at about 1pm, two labourers namely Anwar and Murtaza had received injuries on their head and nose with iron rods at the hands of accused Feruddin and Anarul on the issue of taking drinking water and they had been sent to private hospital namely Sanjeevani at Pahar Ganj. PW4, thereafter, started enquiry from accused Feruddin and Anarul regarding the said quarrel but in the SC No.48/3/14 FIR NO. 180/2011 PS Mandir Marg State Vs Rafikul etc. Page No.3 of 42 meanwhile accused Rafikul and Abdul Jabbar also came there and started arguing in favour of Feruddin and Anarul. At that time, PW5 Ct Batti Lal was enquiring about the matter with other labourers at some distance.
4 At that time accused Abdul Jabbar suddenly caught hold of the right hand of PW4, accused Rafikul held the left hand of PW4, accused Feruddin and Anarul picked up the iron rods lying nearby the spot, attacked PW4 Ct Ganga Ram with the intention to kill him and caused injuries on his hand, as a result of which blood started oozing out from his wounds and he raised an alarm for his help.
5 All the four accused persons, thereafter, tried to run away from the spot but PW4 (complainant/injured) caught hold of accused Rafikul with his left hand and apprehended him but the remaining three co accused persons managed to run away from the spot. PW5 heard the noise and cries of alarm of PW4 and saw that blood was oozing out from the head of PW4, PW4 had caught hold of accused Rafikul and the accused Rafikul was trying to free himself from the clutches of PW4. PW5 immediately reached near PW4 for his help and helped him in the apprehension of accused Rafikul. PW5 thereafter informed SC No.48/3/14 FIR NO. 180/2011 PS Mandir Marg State Vs Rafikul etc. Page No.4 of 42 the PS regarding the incident and took PW4 and accused Rafikul to Lady Harding Medical College and Smt. S. K. hospital (LHMC) in a TSR after taking it from the main road and during the treatment of PW4 at the hospital, the accused Rafikul remained in the custody of PW5. 6 On 20.09.2011, PW7 SI (Retd) Het Ram (IO of the case) and PW1 HC Anil Sharma received DD no. 14A PS Mandir Marg, New Delhi regarding a quarrel and thereafter both of them reached at the spot i.e. under construction building near Speed Post, Bhai Vir Singh Marg, New Delhi where they came to know that a quarrel had taken place wherein PW4 had sustained injuries and he was admitted at LHMC. Thereafter, both PW7 and PW1 reached LHMC where they found PW4/complainant/injured admitted there in an injured condition. 7 PW7/IO obtained the MLC No. 30756 (Ex. PW3/A) from the doctor and the doctor opined on the MLC that PW4 was fit for statement. As per MLC there was a 5x1 cm laceration over the scalp on the right side in temporoparietal region of PW4 and the nature of injuries were opined by PW3 Dr Rahul as simple. PW7/IO recorded the statement of PW4 (Ex PW4/A) in the hospital, made his endorsement Ex PW7/A upon it, prepared a rukka, handed it over to PW1 and sent SC No.48/3/14 FIR NO. 180/2011 PS Mandir Marg State Vs Rafikul etc. Page No.5 of 42 him to PS Mandir Marg for registration of case FIR. PW2 HC Jitender Kumar, Duty Officer at PS Mandir Marg, received the said rukka from PW1 on 20.09.2011 at about 4.35 pm and on its basis the case FIR Ex. PW2/B dated 20.09.2011 u/s 186/353/332/308/34 IPC was registered at PS Mandir Marg.
8 PW1 handed over the copy of FIR and original tehrir to PW7. PW4 also produced his blood stained uniform (shirt with name plate, batch and dori, pants and handkerchief having blood stains) before PW7, which was converted into a pullanda sealed with seal of HR and was seized vide seizure memo Ex PW4/B. 9 PW5 produced accused Rafikul before PW7/IO in the hospital where he was arrested by the IO on the identification of PW4 vide arrest memo Ex PW1/A and his personal search was also conducted vide seizure memo Ex. PW1/B. 10 IO/PW7 along with PW4 reached at the spot, where the site plan Ex PW7/B was prepared by PW7 at the instance of PW4. The other three co accused persons remained untraceable at that time. On 20.10.2011, PW7/IO on receipt of application of the remaining three co accused persons regarding their surrender before the court reached SC No.48/3/14 FIR NO. 180/2011 PS Mandir Marg State Vs Rafikul etc. Page No.6 of 42 Patiala House Courts (PHC), New Delhi with PW5 Ct Batti Lal and PW8 Ct Dev Raj and moved an application before the court for their interrogation. With the permission of the court, the remaining three accused persons were interrogated by PW7 and were arrested. The arrest memos of accused Anarul, Abdul Jabbar and Feruddin are Ex PW5/A to Ex PW5/C respectively, whereas their personal search memos are Ex PW5/F, Ex PW5/E and Ex PW5/D respectively. Their disclosure statements Ex PW5/H to Ex PW5/G respectively were also recorded by PW7.
11 PW6 Inspector Vinod Narang was posted as SHO, PS Mandir Marg on 20.09.2011 and was informed by PW4 regarding the said incident. On 28.02.2012, the IO of the case presented before PW6 an application seeking permission/complaint u/s 195 CrPC along with the case file upon which PW6 had given the complaint u/s 195 CrPC against all the four accused persons for their prosecution u/s 186/353/332/308/34 IPC. After completion of the investigation, the charge sheet was filed against all the four accused persons u/s 186/353/332/308/34 IPC.
12 All the four accused persons are facing trial on the allegations of SC No.48/3/14 FIR NO. 180/2011 PS Mandir Marg State Vs Rafikul etc. Page No.7 of 42 the prosecution that on 20.09.2011 at about 01.40 p.m at under construction building near Speed Post, Bhai Vir Singh marg, New Delhi within the jurisdiction of PS Mandir Marg, they all in furtherance of their common intention voluntarily obstructed beat constables Ganga Ram (PW4/complainant), a public servant, in the discharge of public functions and also at that time assaulted and used criminal force against him, a public servant, in the execution of his duties as such public servant in order to prevent and deter him from discharging his official duties and thereby committed an offence punishable u/s 186/353/34 IPC.
All the accused persons are further facing trial on the allegations of the prosecution that on the above said date, time and place and in furtherance of their common intention they voluntarily caused hurt to PW4, a public servant while discharging his duty as such public servant, with iron rods hitting him on his head and other vital parts of the body with an intention to prevent and deter him from discharging his duty as such public servant under such circumstances and manner that if by that act the accused persons had caused his death then they all would be guilty of culpable homicide not amounting to murder and SC No.48/3/14 FIR NO. 180/2011 PS Mandir Marg State Vs Rafikul etc. Page No.8 of 42 thereby committed offences punishable under section 332/308/34 IPC.
The above said charge was framed against the accused persons by the learned predecessor of this court on 10.05.2013 to which they pleaded not guilty and claimed trial. The case was thereafter fixed for prosecution evidence.
13 The prosecution in support of its case has examined total 08 witnesses and thereafter the prosecution evidence was closed. It is pertinent to note that due to some typographical error, in the charge as framed by Ld. Predecessor of this court, Section 354 IPC has been mentioned, whereas, it should be section 353 IPC and with joint consent of Ld. Addl. PP for the State and Ld. Defence counsel, it was read accordingly.
14 The statement of accused persons under section 313 Cr.P.C was recorded in which they denied all the material incriminating circumstances appearing in the prosecution evidence on record against them and stated that they are innocent and have been falsely implicated in the present case.
Accused Rafikul further stated that he was arrested from his quarter, where the police had come along with his supervisor, he was SC No.48/3/14 FIR NO. 180/2011 PS Mandir Marg State Vs Rafikul etc. Page No.9 of 42 not involved in any such incident and his disclosure statement was also not recorded. He stated that the injured / PW4 had suffered injuries by falling at the construction site due to stampede created at the site due to conflict between two groups of labourers. He stated that PW4 was misbehaving and threatening the labourers, was insisting for registration of FIR against them despite the fact that Anwar and Murtza were not willing to file any police complaint, PW4 slapped 23 labourers and as such all the labourers started running from the site creating a stampede like situation which resulted in the injuries to PW4. He stated that the injured is a police man and all the witnesses are police witnesses, therefore, they have deposed falsely being interested witnesses. He stated that on 20.09.2011 at about 1pm, there was a quarrel between two groups of labourers on the issue of drinking water at the construction site in which Anwar and Murtza had suffered injuries, somebody called the police, the police men were insisting upon registration of FIR but Anwar and Murtza were not willing and thereafter PW4 misbehaved with the labourers due to which stampede was caused. He stated that the police had enquired from his supervisor JiyaulHaq @ Sonu about the persons involved in fight with SC No.48/3/14 FIR NO. 180/2011 PS Mandir Marg State Vs Rafikul etc. Page No.10 of 42 Anwar and Murtza and on the basis of information from him, the police came to his quarter/room at Paharganj, Delhi and arrested him. He stated that he had not caused injuries to anyone. He preferred to lead defence evidence.
Accused Abdul Jabbar, Feruddin and Anarul further stated that they were not involved in the incident in any manner and that accused Rafikul was arrested from his quarter/room at the instance of their supervisor. They admitted in their statement that they had surrendered but stated that neither they made any disclosure statement nor their statements were recorded. They stated that the injured / PW4 had suffered injuries by falling at the construction site due to stampede created at the site due to conflict between two groups of labourers. They stated that PW4 was misbehaving and threatening the labourers, was insisting for registration of FIR against them despite the fact that Anwar and Murtza were not willing to file any police complaint, PW4 slapped 23 labourers and as such all the labourers started running from the site creating a stampede like situation which resulted in the injuries to PW4. They stated that the police had enquired from their supervisor JiyaulHaq @ Sonu about the persons involved in the fight SC No.48/3/14 FIR NO. 180/2011 PS Mandir Marg State Vs Rafikul etc. Page No.11 of 42 with Anwar and Murtza and on the information from him, they were named in the present FIR and hence they had surrendered. They stated that the injured is a police man and all the witnesses are police witnesses, therefore, they have deposed falsely being interested witnesses. They further stated that on 20.09.2011 at about 1pm, there was a quarrel between two groups of labourers on the issue of drinking water at the construction site in which Anwar and Murtza had suffered injuries, somebody called the police, the police men were insisting upon registration of FIR but Anwar and Murtza were not willing and thereafter PW4 misbehaved with the labourers due to which stampede was caused. They stated that it is a false case and they had not caused injuries to anyone. All the said three accused persons in their respective statements u/s 313 CrPC preferred to lead defence evidence.
15 The accused persons in support of their case examined Sh Jiya ulHaq as DW1 and further defence evidence was closed by separate recorded statement dated 04.11.2015.
16 I have heard the final arguments and perused the record. The arguments of learned Addl. PP for State and the learned defence SC No.48/3/14 FIR NO. 180/2011 PS Mandir Marg State Vs Rafikul etc. Page No.12 of 42 counsel would be discussed at the appropriate stages in the judgment. 17 As mentioned above, the prosecution in support of its case has examined total 08 witnesses.
18 PW1 HC Anil Sharma has deposed to the effect that on 20.09.2011 PW7 SI Het Ram /IO had received DD No. 14A regarding a quarrel, he along with PW7 went to Bhai Vir Singh marg near Speed Post office and at the spot, it was revealed that a quarrel had taken place and the injured had already been taken to LHMC hospital. Thereafter, PW1 along with PW7 went to LHMC where Ct Ganga Ram (PW4/injured) was found admitted. PW7 made enquiries from PW4 and also recorded his statement.PW7 gave rukka to PW1, PW1 went to PS for registration of the FIR, after registration of the FIR, he came back to the spot where PW7 was already present and he handed over rukka and copy of FIR to PW7. He deposed that PW4 along with PW5 Ct Batti Lal were also present at the spot. He deposed that at the instance of PW4, the accused Rafikul was arrested at the spot vide arrest memo Ex PW1/A bearing his signatures at point A. The personal search memo of accused Rafikul has been proved as Ex PW1/B. In cross examination by Ld. Defence counsel, PW1 inter alia SC No.48/3/14 FIR NO. 180/2011 PS Mandir Marg State Vs Rafikul etc. Page No.13 of 42 deposed that he had reached at the spot with PW7 on 20.09.2011 at about 2pm and PW7 had enquired from the supervisor and the labourers present at the spot about the incident. He also deposed that one of the accused who had caused injury to PW4 was also present at LHMC but he could not identify the said accused who was present in the hospital. He deposed that IO did not arrest anyone in the hospital in his presence but one of the accused namely Rafikul was arrested by the IO at the spot in his presence and at the time of arrest of accused Rafikul, Ct Batti Lal (PW5) was also present there.
19 PW2 H.C. Jitender Kumar was working as a Duty Officer at PS Mandir Marg on 20.09.2011 and at about 4.35 pm received a rukka from PW1 sent by PW7/IO. On the basis of rukka, he registered the case FIR u/s 186/353/332/308/34 IPC. After registration of the FIR, he made his endorsement Ex PW2/A on the rukka and handed over the original rukka and computerized copy of FIR to PW1. The computerized copy of FIR has been proved as Ex PW2/B. 20 PW3 Dr Rahul, SR (Surgery), LHMC, New Delhi examined injured/PW4 on 20.09.2011 at the said hospital. He deposed that the patient reported with the history of assault on the head on the right SC No.48/3/14 FIR NO. 180/2011 PS Mandir Marg State Vs Rafikul etc. Page No.14 of 42 side with complaints of bleeding and pain, the bleeding stopped on compression, there was no history of loss of consciousness or vomiting and there was no history of injury elsewhere. He further inter alia deposed that there was a 5x1 cm laceration over the scalp on right side in temporoparietal region, the wound was sutured and the patient was asked to follow up in OPD. PW3 prepared the MLC No. 30756 which has been proved as ExPW3/A bearing his signatures at point A. PW3 also opined the nature of injuries as simple injury.
In cross examination by Ld. Defence counsel, PW3 deposed that the patient (PW4) was discharged after first aid on the same day. PW3 could not tell whether any accused was also present with PW4. PW3 admitted that such injury was possible on account of falling or on account of collision with any hard object.
21 PW4 Ct Ganga Ram is the most material witness for the prosecution being the complainant / injured of the case incident. The statement dated 20.09.2011 of PW4 upon which case FIR Ex PW2/B was registered has been proved as Ex PW4/A. He deposed that the IO also arrested accused Rafikul on his identification vide arrest memo Ex PW1/A and conducted his personal search vide memo Ex PW1/B both SC No.48/3/14 FIR NO. 180/2011 PS Mandir Marg State Vs Rafikul etc. Page No.15 of 42 bearing his signatures at point B. He deposed that IO also seized his blood stained uniform with his number plate and one handkerchief, prepared a pullanda, sealed the same with seal of HR and took the same into possession vide memo Ex PW4/B bearing signatures of PW4 at point A. The khakhi colour uniform (shirt with number plate and badge and dori [cord], pants and handkerchief having blood stains) which PW4 was wearing at the time of incident and were seized by the police during the investigation have been proved as Ex P1 (collectively). The testimony of PW4 would be discussed in detail at the relevant stages of the judgment.
22 PW5 Constable Batti Lal went along with PW4 to the spot after getting a message of quarrel. He has deposed that a crowd of labourers had gathered there and he was enquiring from the labourers regarding the incident. He deposed that PW4 Ct Ganga Ram was also enquiring the matter with some labourers at some distance. He deposed that after some time he suddenly heard the noise of PW4, he saw that blood was oozing out from the head of PW4 and he had caught hold of one person whose name was subsequently revealed as Rafikul (accused). He deposed that thereafter he reached there and SC No.48/3/14 FIR NO. 180/2011 PS Mandir Marg State Vs Rafikul etc. Page No.16 of 42 helped PW4 in apprehension of accused Rafikul. He thereafter immediately took PW4 and accused Rafikul at the main road and thereafter took them to Lady Harding hospital for treatment in a TSR. He deposed that during treatment of PW4, the accused Rafikul remained in his custody. He deposed that after sometime, IO/PW7 along with PW1 HC Anil reached, recorded statement of PW4, prepared a rukka and handed over the same to PW1 for getting the FIR registered at the PS. Thereafter, IO/PW7 took the accused Rafikul and PW4 to the spot, IO inspected the spot and in the meantime, PW1 reached at the spot with copy of FIR and original tehrir and handed over the same to PW7. PW7 also prepared the site plan at the instance of PW4. PW5 further deposed that he again joined the investigation with the IO/PW7 after the surrender of remaining three accused persons before the court when he along with PW8 Ct Devraj and IO/PW7 had reached at Patiala House Courts premises, where with the permission of the court, the IO formally interrogated and arrested the said three accused persons. The arrest memos of accused Anarul, Abdul Jabbar and Feruddin have been proved as Ex PW5/A to Ex PW5/C respectively, whereas, their personal search SC No.48/3/14 FIR NO. 180/2011 PS Mandir Marg State Vs Rafikul etc. Page No.17 of 42 memos have been proved as Ex PW5/D to Ex PW5/F respectively. The disclosure statements of the said three accused persons are Ex PW5/G to Ex PW5/I respectively.
PW5 in his cross examination has deposed that he had reached the spot after receiving a wireless message regarding a quarrel between the labourers at Bhai Vir Singh marg, Speed Post building and that around 100150 labourers were present at the spot. He inter alia deposed in his cross examination that he was at a distance of about 1520 feet away from PW4 when he heard his cry for help, he saw that blood was oozing out from his (PW4) head and that PW4 had caught hold of the accused Rafikul. He deposed that he did not see the three accused persons namely Feruddin, Anarul and Abdul Jabbar at any point of time before or after they had surrendered before the court. He deposed that IO had prepared the arrest papers regarding arrest of accused Rafikul in the hospital. He denied the suggestion that accused Rafikul was arrested in the manner he had deposed. 23 PW6 Inspector Vinod Narang was posted as SHO, PS Mandir Marg on 20.09.2011 and deposed that on that day he was informed by PW4 regarding an incident with him upon which the case was SC No.48/3/14 FIR NO. 180/2011 PS Mandir Marg State Vs Rafikul etc. Page No.18 of 42 registered on his statement. He deposed that on 28.02.2012, the IO of the case presented before him an application seeking permission/complaint u/s 195 CrPC along with the case file and after perusal of the case file and application of his mind, he had given the complaint u/s 195 CrPC Ex PW6/A against all the four accused persons, mentioned in the complaint itself.
24 PW7 SI (Retd) Het Ram is the IO of the case. The endorsement of PW7 on the statement of PW4 (Ex PW4/A) has been proved as Ex PW7/A. The site plan as prepared by PW7 at the instance of PW4 has been proved as Ex PW7/B. PW7 has deposed on the lines of testimony of other prosecution witnesses and his testimony would be discussed during the relevant stages of the judgment. 25 PW8 Ct Dev Raj has deposed to the effect that on 20.10.2011, he joined the investigation of the case with PW7 and PW5 and reached the court of Ld. Duty MM, Patiala House Courts, New Delhi where three accused persons namely Abdul Jabbar, Feruddin and Anarul had surrendered. He deposed that thereafter IO arrested all the three accused persons with the permission of the court after interrogation by the IO, their personal search was also conducted by the IO and their SC No.48/3/14 FIR NO. 180/2011 PS Mandir Marg State Vs Rafikul etc. Page No.19 of 42 disclosure statements were also recorded. He deposed that he only signed the disclosure statement Ex PW5/G qua accused Feruddin. 26 The accused persons in support of their case examined Sh Jia ulhaq as DW1. DW1 has deposed in his examination in chief that he is in a business of building construction and on 20.09.2011 he was working as supervisor at Bhai Vir Singh Marg near PO at the site of L&T. He deposed that at about 1.30pm there was a fight between two groups of labour on the issue of drinking water, the fight was between Anwar and Murtaza on one side and some other labour on the other side and in the meanwhile somebody called the police and the police arrived at the spot. He deposed that the police enquired from Anwar and Murtaza about the fight, they told the police that they did not want any police action and stated that the matter had been settled. He deposed that the police man who was present there said that since the police had been called, a case has to be registered and the arrests were required to be made. He deposed that the police man started misbehaving with and abusing the labourers present there, even slapped 23 labourers, there was stampede as the labourers started to run to avoid being arrested and beaten by the police, there were about SC No.48/3/14 FIR NO. 180/2011 PS Mandir Marg State Vs Rafikul etc. Page No.20 of 42 100150 labourers present at the site at that time, the police man fell down due to stampede and suffered injuries due to falling on the construction material lying at the site. He deposed that after a while, other policemen came and took the injured police official away, the police again came after ½ - 1 hour and started making enquiry from him and other persons who were present there. He deposed that the police asked him the names and details of the labourers who had a fight with Anwar and Murtaza and he gave the name and details of accused Abdul Jabbar and accused Rafikul to the police and the other names and details were collected by the police from the supervisors. He deposed that he was the supervisor for about 5060 labourers and thereafter the police went away after recording his name and particulars.
In cross examination by Ld. Addl. PP for the State, DW1 admitted that on the date of the incident all the four accused persons were working under his supervision. He inter alia denied the suggestion that he was not present at the spot on the date of the incident. He also denied the suggestions that the accused persons gave beating to Ct Ganga Ram or that the accused persons also SC No.48/3/14 FIR NO. 180/2011 PS Mandir Marg State Vs Rafikul etc. Page No.21 of 42 deliberately obstructed in the discharge of official duties of Ct Ganga Ram or that Ct Ganga Ram did not receive injuries due to falling on the construction material lying at the spot due to stampede. He also denied the suggestion that Ct Ganga Ram (PW4) was beaten by accused Md Feruddin and Anarul with iron rods and caused injury on his head.
No other defence witness was examined by the accused persons in this case.
27 The case of the prosecution against the accused persons is that on 20.09.2011 at about 01.40 p.m. at under construction building near Speed Post, Bhai Vir Singh marg, New Delhi they in furtherance of their common intention voluntarily obstructed the beat Ct Ganga Ram (PW4/complainant), a public servant, in discharge of his public functions, at that time assaulted and used criminal force against him to deter him from discharging his duties as such public servant and also caused hurt to him with iron rods hitting him on his head and other vital parts of the body with an intention to prevent and deter him from discharging his duty as such public servant under such circumstances or manner that if they by that act had caused his death then they would SC No.48/3/14 FIR NO. 180/2011 PS Mandir Marg State Vs Rafikul etc. Page No.22 of 42 be guilty of culpable homicide not amounting to murder and thereby committed the offences punishable u/s 186/353/332/308/34 IPC. 28 The ld. Addl. PP for State has argued that the identity of the accused Abdul Jabbar, Feruddin and Anarul has been fully established by the prosecution in view of the testimony of PW4/complainant, PW5 Ct Batti Lal, PW7/IO and PW8. He argued that PW4 has correctly identified all the said three accused persons facing trial in the court. He argued that the said three accused persons in furtherance of their common intention with co accused Rafikul committed the above said offences u/s 186/353/332/308/34 IPC. 29 The ld. defence counsel on the other hand, argued that the identity of the said three accused persons namely Abdul Jabbar, Feruddin and Anarul is highly doubtful as although the names of said accused persons have been mentioned in statement Ex PW4/A of the complainant/PW4 upon which the case FIR Ex PW2/B was registered and also in the FIR Ex PW2/B but the complainant/PW4 has admitted in his cross examination that none of the accused persons were known to him prior to the alleged incident. He argued that PW4 further deposed in his cross examination that he did not conduct any enquiry SC No.48/3/14 FIR NO. 180/2011 PS Mandir Marg State Vs Rafikul etc. Page No.23 of 42 from any person in the present case. He thus argued that PW4 has therefore failed to satisfactorily give the source of his information about the names and identity of the said three accused persons. He further argued that the complainant/PW4 also deposed in his cross examination that the identity of accused persons was revealed only after the interrogation by the IO and the names of other accused persons (Abdul Jabbar, Feruddin and Anarul) came to his knowledge only when they had surrendered before the court. He argued that it was highly improbable and unnatural for the informant / PW4 to give name, parentage and address of the accused persons with their specific roles in his statement Ex PW4/A upon which the case FIR Ex PW2/B was registered although the said accused persons were admittedly unknown to him. He further argued that even for the sake of argument, if it was to be presumed that the names of the said accused persons were supplied to PW4 by some other person, then also the identity of the said accused persons should have been established by conducting TIP, as they were arrested only on 20.10.2011 i.e. after about one month of the case incident after they surrendered in the court. In that regard, he also referred to the cross SC No.48/3/14 FIR NO. 180/2011 PS Mandir Marg State Vs Rafikul etc. Page No.24 of 42 examination of PW7/IO wherein, he has deposed that perhaps, he came to know about the names of remaining accused persons (Abdul Jabbar, Feruddin and Anarul) only when he had reached at the spot and had made enquiries. He thus argued that the accused Rafikul, who was alleged to have been arrested from the spot, also could not be said to have disclosed the names and particulars of the other three co accused persons in view of the above said testimony of PW7/IO and also as there is no disclosure statement of accused Rafikul on record. He thus argued that the names of the accused persons were not in the knowledge of informant/complainant/PW4 or even the IO even after the incident. He argued that the identification of accused by witness for the first time in the court should not form the basis of conviction, the same being from its very nature inherently of a weak character unless it is corroborated by his previous identification in the TIP or any other evidence. He relied upon following judgments in that regard:
i) Mohanlal Gangaram Gehani Vs State of Maharashtra, (1982) 1 SCC 700;
ii) Budhsen Vs State of UP, 1970 (2) SCC 128;
SC No.48/3/14 FIR NO. 180/2011 PS Mandir Marg State Vs Rafikul etc. Page No.25 of 42
iii) Kanan Vs State of Kerala, (1979) 3 SCC 319;
iv) Dana Yadav alias Dahu & Ors Vs. State of Bihar, (2002)7 SCC 295;
v) Judgment dated 08.05.2014 of Hon'ble Delhi High Court in Crl. Appeal 532/2012 in case titled as Nazim Khan alias Guddu Vs. State.
30. PW4 (complainant/victim) Ct.Ganga Ram has inter alia deposed in his examination in chief that on 20.09.2011 he was on duty as a beat constable at Division no. 3, Gole Market and on that day he along with PW5 Ct. Batti Lal were present in their beat in police uniform. He deposed that at about 01.40p.m, he heard a message on his beat net wireless set regarding a quarrel at behind the Light Speed Post Building,NDMC, Gole market, New Delhi and he along with PW5 reached at the aforesaid place near the post office where a crowd of the labourers had gathered. He deposed that on inquiry it was revealed that at about 01.00 p.m. two labourers namely Anwar and Murtaza suffered injuries on their head and nose with iron rods by accused Feruddin and Anarul on the issue of taking drinking water and the said injured had been sent to private hospital namely Sanjeevani Hospital at SC No.48/3/14 FIR NO. 180/2011 PS Mandir Marg State Vs Rafikul etc. Page No.26 of 42 Pahar Ganj. He deposed that he inquired the matter with Feruddin and Anarul regarding the said quarrel and in the mean time Rafikul and Jabbar also came there and started arguing in favour of Feruddin and Anarul. He deposed that at that time PW5 was inquiring about the matter with other labourers at some distance. He deposed that suddenly accused Jabbar caught hold of his right hand whereas accused Rafikul held his left hand and other two accused namely Feruddin and Anarul picked up iron rods lying nearby the spot and attacked him with the intention to kill him, caused him injuries on his head as a result of which he sustained injuries on his head, blood started oozing out from his wounds and he raised an alarm for his help. He deposed that all the four accused persons after the incident tried to run away from the spot but he caught hold of accused Rafikul, apprehended him and other three accused persons managed to run away from the spot. He deposed that after hearing his noise, PW5 immediately reached near him for his help and helped him to catch hold of accused Rafikul who was trying to free himself from his clutches. PW5, thereafter, informed the PS regarding the incident and also took him and accused Rafikul to Lady Harding Hospital in a TSR. SC No.48/3/14 FIR NO. 180/2011 PS Mandir Marg State Vs Rafikul etc. Page No.27 of 42 He identified all the accused persons in the court and deposed that they obstructed him in discharge of his government duty and had attacked him with intention to kill him with iron rods. He deposed that in the hospital, PW7/IO recorded his statement Ex PW4/A bearing his signatures at point A. He deposed that IO also arrested accused Rafikul on his identification vide arrest memo ExPW1/A bearing his signatures at point A and also conducted his personal search vide memo Ex PW1/B. The IO also seized his blood stained uniform with his name plate and one handkerchief, prepared a pullanda, sealed the same with the seal of HR and took the same into possession vide seizure memo Ex PW4/B. The khakhi colour uniform (shirt with name plate and badge, dori, pants and handkerchief having blood stains) have been proved as Ex P1 collectively.
31. In his cross examination by ld defence counsel, PW4 inter alia admitted that none of the accused persons were known to him prior to the alleged incident. He deposed that he did not conduct any inquiry from any person in the present case and there were about 100150 labourers present at the spot at the time of the incident. He admitted that when he reached at the spot the situation was tense and that SC No.48/3/14 FIR NO. 180/2011 PS Mandir Marg State Vs Rafikul etc. Page No.28 of 42 heated exchanges were being made between the group of labourers and that the dispute was over the issue of drinking water. He denied the suggestion that Anwarand Murtaza were present at the spot when he reached there or that they had met him during the inquiries or that they refused to get register any complaint in the matter against anyone or that he was misbehaving with the labourers and was insisting upon a police action against all the labourers in the matter or that he had slapped two three labourers and was forcing them to go to PS or that due to his behaviour stampede like situation arose or that the labourers started running away from the site or that in the said process he fell down and sustained injuries due to fall on the construction material lying at the spot. He deposed that he had caught hold of accused Rafikul while blood was oozing out of his head injury. He further deposed that no blood stains were there on the cloths of accused Rafikul even after he had over powered him. He categorically deposed in his cross examination that the identity of the accused persons was revealed only after their interrogation by the IO. He deposed that the accused Rafikul was interrogated by the IO at the hospital and the name of the other accused persons came to his knowledge only when SC No.48/3/14 FIR NO. 180/2011 PS Mandir Marg State Vs Rafikul etc. Page No.29 of 42 they had surrendered before the court.
32. The case FIR was registered on the complaint Ex PW4/A of the complainant/PW4. The said statement is dated 20.09.2011 i.e the date of the case incident. The said statement ExPW4/A would show that the name of the accused Abdul Jabbar, Feruddin and Anarul have been mentioned in it. The parentage and address of accused Feruddin and Anarul have also been mentioned in Ex PW4/A. As discussed above, the complaint / PW4 has admitted in his cross examination that none of the accused persons were known to him prior to the alleged incident and he did not conduct any inquiry from any person in the present case. It would show that PW4 has admitted that he even did not make any inquiry from accused Rafikul in the present case. PW4 further admitted in his cross examination that the identity of the accused persons was revealed only after there interrogation by the IO and the names of other accused persons (Abdul Jabbar, Feruddin and Anarul) came to his knowledge only when they had surrendered before the court. PW4 has thus failed to satisfactorily give the source of his information about the names and identify of the said three accused persons. It is highly improbable and unnatural for the SC No.48/3/14 FIR NO. 180/2011 PS Mandir Marg State Vs Rafikul etc. Page No.30 of 42 informant / complainant / PW4 to give name, parentage and address of the said three accused persons with their specific roles in his statement Ex PW4/A, upon which the case FIR ExPW2/B was registered, although the said three accused persons were admittedly unknown to him and their names admittedly came to his knowledge only when they had surrendered before the court on 20.10.2011 i.e about one month after the case incident. It raises a very strong doubt over the facts as mentioned in Ex PW4/A, FIR Ex PW2/B and also over the truthfulness and veracity of the testimony of PW4. This in turn raises a strong doubt over the entire case of prosecution including the case against the said three accused persons namely Abdul Jabbar, Feruddin and Anarul.
33. Further, the identity of the said three accused persons namely Abdul Jabbar, Feruddin and Anarul has not been got established by the prosecution by conducting any TIP particularly as they were arrested only on 20.10.2011 i.e. after about one month of the case incident after they had surrendered in the court. PW7 /IO in his cross examination has also deposed that perhaps he came to know about the names of remaining accused persons (Abdul Jabbar, Feruddin SC No.48/3/14 FIR NO. 180/2011 PS Mandir Marg State Vs Rafikul etc. Page No.31 of 42 and Anarul) only when he had reached the spot and had made inquiries. The accused Rafikul, who is alleged to have been arrested from the spot, also could not be said to have disclosed the name and particulars of his three coaccused persons in view of the said testimony of PW7 and further no disclosure statement of accused Rafikul has been proved on record. The arrest memos of said three accused persons would also show that PW4/complainant is not a witness to them. It is thus evident that the names of the said three accused persons were not in the knowledge of the informant/complainant/PW4 even after the incident and only came to the knowledge of the IO when he reached at the spot and had made inquires. PW5 has also deposed in his cross examination that he did not see the said three accused persons at any point of time before or after they had surrendered before the court. As mentioned above, the record shows that no judicial TIP proceedings of the said three accused persons were conducted although it is a settled law that the identification of accused by the witness for the first time in the court, without being tested by a prior TIP, is valueless. In the said circumstances, it was incumbent on the prosecution in this case to SC No.48/3/14 FIR NO. 180/2011 PS Mandir Marg State Vs Rafikul etc. Page No.32 of 42 have arranged for TIP of the said three accused persons and to get their identification made before the witness / PW4 was called upon to identify them in the court.
34. In the light of the above mentioned facts of the case, the identification of the said three accused persons (Abdul Jabbar, Feruddin and Anarul) by the witness/PW4 for the first time in the court thereafter, without being tested by a prior useful and valid TIP proceedings is valueless. The Hon'ble Supreme Court of India in case of Dana Yadav (Supra) has also inter alia held as under : " 38. In view of the law analyzed above, we conclude thus :
(a)........................
(b)........................
(c)........................
(d)........................
(e) failure to hold test identification parade does not make the evidence of identification in court inadmissible, rather the same is very much admissible in law, but ordinarily identification of an accused by a witness for the first time in court should not form the basis of conviction, the same being from its very nature inherently of a weak SC No.48/3/14 FIR NO. 180/2011 PS Mandir Marg State Vs Rafikul etc. Page No.33 of 42 character unless it is corroborated by his previous identification in the test identification parade or any other evidence. The previous identification in the test identification parade is a check valve to the evidence of identification in court of an accused by a witness and the same is a rule of prudence an not law.
(f)............................
(g) Ordinarily, if an accused is not named in the first information report, his identification by witnesses in court, should not be relied upon especially, when they did not disclose name of the accused before the police, but this general rule there may be exceptions as enumerated above."
In the case of Kanan (Supra), the Hon'ble Supreme Court of India has inter alia held as follows:
'................It is well settled that where a witness identifies an accused who is not known to him in the court for the first time, his evidence is absolutely valueless unless there has been a previous T.I. parade to test his powers of observation. The idea of holding T.I. Parade under Section 9 of the Evidence Act is to test the veracity of the witness on the question of his capability to identify an unknown SC No.48/3/14 FIR NO. 180/2011 PS Mandir Marg State Vs Rafikul etc. Page No.34 of 42 person whom the witness may have seen only once. If no T.I. Parade is held then it will be wholly unsafe to rely on his bare testimony regarding the identification of an accused for the first time in the court. In these circumstances, therefore, we feel that it was incumbent on the prosecution in this case to have arranged T.I. Parade and got the identification made before the witness was called upon to identify the appellant in the court. On this ground alone, the testimony of PW25 becomes unworthy of credence and must be excluded from consideration........'
35. In view of the above said settled law, the identification of said three accused persons by PW4 for the first time in the court can not form the basis of their conviction. In view of the said circumstances and discussion, it can be safely held that the prosecution has failed to prove and establish beyond reasonable doubt the identity of the said three accused persons namely Abdul Jabbar, Feruddin and Anarul as the perpetrators of the case crime. The said three accused persons namely Abdul Jabbar, Feruddin and Anarul are entitled to benefit of doubt and consequent acquittal in this case.
36. As far as the case of the prosecution against accused Rafikul is SC No.48/3/14 FIR NO. 180/2011 PS Mandir Marg State Vs Rafikul etc. Page No.35 of 42 concerned, the ld Addl. PP for State argued that he was apprehended at the spot by PW4 with the help of PW5. He argued that the testimony of PW4 and PW5 is sufficient to convict the accused Rafikul in this case.
37. The ld defence counsel on the other hand argued that the testimony of PW4 becomes highly doubtful in view of Ex PW4/A wherein he had mentioned the names of all the accused persons although he has admitted in his cross examination that the identify of the accused persons was revealed only after their interrogation by the IO. He further argued that the arrest of accused Rafikul is highly doubtful because PW4 and PW5 have deposed to the effect that the accused was arrested by the IO at the hospital itself and all the paper work relating to his arrest was also completed at the hospital, whereas the arrest memo of accused Rafikul Ex PW1/A would show that the place of arrest has been mentioned as Bhai Veeer Singh Marg near Speed Post Building. He further argued that there was no blood stains on the cloths of accused Rafikul although he was alleged to have been caught hold of by injured PW4, whose blood soaked uniform is a case property. He also referred to the cross examination of PW4 wherein he SC No.48/3/14 FIR NO. 180/2011 PS Mandir Marg State Vs Rafikul etc. Page No.36 of 42 has deposed that there was no blood stains on the cloths of accused Rafikul even after he had over powered him. He also referred to the testimony of PW1, wherein in his cross examination he has inter alia deposed that he could not identify the accused person who was present in the hospital and had further deposed that he did not see any accused at the hospital as he was busy with PW4 Ct. Ganga Ram. In this regard he also referred to the testimony of PW3 Dr. Rahul, SR Surgery, LHMC,New Delhi who deposed that he could not tell whether any accused was also present with PW4 in the hospital and further admitted that such injury was possible on account of falling or on account of collision with any hard object. He also argued that no public persons were joined by the IO during the investigation, no sincere efforts in that regard was made by the IO and it is admitted case of the prosecution that there were about 100150 other labourers/ public persons present at the spot. He also referred to the testimony of DW1. He also relied upon the following judgments :
1) Satish Kumar Vs. State, 60(1995) DLT 74.
2) Anoop Joshi Vs. State ( Delhi ), 1992 (2) C.C.Cases 314 ( HC ).
SC No.48/3/14 FIR NO. 180/2011 PS Mandir Marg State Vs Rafikul etc. Page No.37 of 42
3) Chander Pal Vs. State & Kishan Lal Vs. State, 75(1998) DLT
461.
38. In the earlier part of the judgment, while discussing the case of coaccused Abdul Jabbar, Feruddin and Anarul, a strong doubt has already been raised over the veracity of the testimony of PW4, Ex PW4/A, FIR Ex PW2/B and the entire case of the prosecution. Further, as per the case of the prosecution, the accused Rafikul was apprehended at the spot. His arrest memo Ex PW1/A would also show that the place of arrest has been mentioned as Bhai Veer Singh Marg near Speed Post New Building with date and time of arrest as 20.09.2011 at 06.30 pm. The date and time of incident as per case of the prosecution is 20.09.2011 at 01.40 p.m. PW4 in his cross examination by ld defence counsel has inter alia deposed that the accused was arrested by the IO at the hospital itself and all the paper work related to his arrest was completed at the hospital. This testimony of PW4 is in total contradiction to the arrest memo Ex PW1/A, which as mentioned above, shows the place of arrest as Bhai Veer Singh Marg near Speed Post Nai Building and not as the Lady Harding Medical College and hospital. Further, the MLC Ex PW3/A would show that in SC No.48/3/14 FIR NO. 180/2011 PS Mandir Marg State Vs Rafikul etc. Page No.38 of 42 brief history, only alleged assault has been mentioned, the name of the accused Rafikul has not been mentioned, whereas, the case of the prosecution is that PW4, PW5 and accused Rafikul went to the above said hospital for medical treatment of PW4. If the accused Rafikul would have been apprehended at the spot then PW4/injured would have come to know his name at the spot itself, which would thereafter should have been mentioned in Ex PW3/A. Moreover, the concerned doctor i.e PW3 also deposed in his cross examination that he could not tell whether any accused was also present with Ct.Ganga Ram/PW4. PW1 who went with PW7/IO to the said hospital on the date of incident also could not identify the accused who was present in the hospital and also deposed that he did not see any accused person at the hospital as he was busy with PW4. This raises a very strong doubt over the story of the prosecution regarding the alleged apprehension and arrest of accused Rafikul in this case. Moreover, DW1 has also deposed to the effect that on 20.09.2011 at about 01.30 p.m there was a fight between Anwar and Murtaza on one side and some labourers on the other side, some one called the police upon which the police arrived, the police inquired from Anwar and Murtaza about the fight who told SC No.48/3/14 FIR NO. 180/2011 PS Mandir Marg State Vs Rafikul etc. Page No.39 of 42 the police that they did not want any police action, the police man started misbehaving with and abusing the labourers present there, he even slapped 23 labourers, there was a stampede as the labourers started running to avoid being arrested and beaten by the police, there were about 100150 labourers present at the site and the police man fell down due to stampede and suffered injuries due to falling on the construction material lying at the site. DW1 further deposed that after a while, other police man came, took the injured police official away, the police again came after ½ 1 hour and started making inquiry from him and other persons who were present there. He deposed that the police asked him the names and details of the labourers who had a fight with Anwar and Murtaza, he gave the name and details of accused Abdul Jabbar and Rafikul to the police, the other names and details were collected by the police from other supervisors and that he was a supervisor for about 5060 labourers. Nothing substantial has appeared in the cross examination of DW1 to discredit his testimony. It is a settled law that the defence witnesses are also entitled to the same value as that of the prosecution witnesses. The testimony of DW1 regarding the sustaining of injury by the police man (PW4) is also SC No.48/3/14 FIR NO. 180/2011 PS Mandir Marg State Vs Rafikul etc. Page No.40 of 42 substantiated by the testimony of PW3 Dr. Rahul who admitted in his cross examination that such injury (to PW4) was possible on account of falling or on account of collision with any hard object. Moreover, it seems that the IO has also not made any sincere efforts to join any public witness in the arrest of accused Rafikul and investigation in that regard although it is an admitted case of prosecution that about 100150 other labourers were also present at the spot. All these material lacunae and contradictions in the case of prosecution would effect the credibility of the prosecution witnesses and the entire case of the prosecution. The prosecution has thus failed to prove beyond reasonable doubt that the accused Rafikul was also involved in the case offence and was in fact one of the perpetrator of the case crime.
39. Keeping in view the above said facts and circumstances of the case and discussion, the prosecution has failed to prove beyond reasonable doubt the above said charge against all the accused persons. All the accused persons namely Rafikul Abdul Jabbar, Feruddin and Anarul are thus acquitted in the present case u/s 186/332/353/308/34 IPC.
40. Bail bonds of all the accused persons are cancelled, their SC No.48/3/14 FIR NO. 180/2011 PS Mandir Marg State Vs Rafikul etc. Page No.41 of 42 respective sureties are discharged and the original documents, if any of the sureties be released to them against proper acknowledgment. The case property pertaining to the present case, if any, with the malkhana of PS Mandir Marg be disposed of as per rules.
41. File be consigned to record room after completion of all other necessary formalities.
Announced in the open
Court on 16.12.2015 (AMIT BANSAL)
ADDITIONAL SESSIONS JUDGE04
PATIALA HOUSE COURTS/NEWDELHI
16.12.2015
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