Delhi District Court
Sc No. 64/15 & Old No. 19/12 State vs . Neelam Etc. Page No.1 Of 24 on 29 July, 2016
IN THE COURT OF SH. NARESH KUMAR MALHOTRA, ADDITIONAL
SESSIONS JUDGE05, WEST, TIS HAZARI COURTS, DELHI.
IN THE MATTER OF
S.C. No. 64/15, Old No. 19/12, New No. 56115/16.
FIR No. 199/10.
P.S. Uttam Nagar.
U/S 452/308/34 IPC
STATE
VERSUS
1. Neelam
W/o Rajbali,
r/o L3,4/6, Mohan Garden,
Uttam Nagar, Delhi.
2. Mohsin Ahmad,
S/o Zamil Ahmad,
r/o 2/45, Harijan Basti,
New Rohtak Road, Delhi.
3. Zamil Ahmad,
S/o Shaifiq Ahmad,
r/o 2/45, Harijan Basti,
New Rohtak Road, Delhi.
DATE OF INSTITUTION :17.04.2012
DATE OF ARGUMENTS :27.07.2016
DATE OF DECISION :29.07.2016
JUDGEMENT
1. In brief the case of the prosecution is that on receipt of DD No. 19A, SI Yogesh Kumar of PS Uttam Nagar along with Ct. Jitender, No. 1915/W reached at the house No. L3,4/6, Mohan Garden Uttam Nagar SC No. 64/15 & Old No. 19/12 State Vs. Neelam etc. Page No.1 of 24 and he came to know that injured Rajbali has been shifted to DDU hospital by PCR van. SI Yogesh Kumar left Ct. Jitender at the spot and went to DDU Hospital and he collected MLC No. 11679/10 of Rajbali S/o Chandersekhar. SI Yogesh Kumar recorded the statement of Rajbali that he is residing with his son Manish, daughter in law Suchita and wife Neelam. This house measuring 70 sq. yards is in the name of his wife Neelam. Zamil Ahmad, who is an Occultist used to come to his house for the last five years and had developed illicit relations with his wife. When he told Zamil Ahmad not to visit his house then Zamil Ahmad and Neelam wife of the complainant turned against him. Son of Zamil Ahmad is also working as Occultist and he also used to come to his house. For the last 78 months both Zamil Ahmad and Mohsin Ahmad trapped his wife to usurp the money by selling the house. He has also filed a civil suit which is pending in Tis Hazari Courts. He also stated that for the last 3 days his wife, Zamil Ahmad and Mohsin Ahmad daily used to visit his house along with other persons for the purpose of selling the house. He has also stated that today at about 3:00 PM he and and his daughter in law were present at his house at that time Zamil Ahmad, Mohsin Ahmad and Neelam (wife of the complainant) came to his house and Zamil Ahmad and Mohsin Ahmad were having dandas in his hand. After coming they told the complainant to vacate the house and they also threatened with dire consequences. When he and his daughterinlaw refused to vacate the house then accused Neelam started slapping Suchita, daughter in law of the complainant. Neelam asked Zamil Ahmad and Mohsin Ahmad to finish the complainant then Zamil Ahmad and Mohsin Ahmad started SC No. 64/15 & Old No. 19/12 State Vs. Neelam etc. Page No.2 of 24 giving danda blows on his head with the intention to kill him. He fell on the ground and when he raised noise, they fled from the spot. On the instigation of his wife, Zamil Ahmad and Mohsin Ahmad tried to kill him.
2. On the statement of complainant, FIR No. 199/10, PS Uttam Nagar, U/s 452/308/34 IPC has been registered against the accused persons namely Neelam, Zamil Ahmad and Mohsin Ahmad. Investigation was carried out. Site plan was prepared. During investigation, one cricket wicket and one leg of wooden cot were taken into possession. Clothes of injured were also taken into possession. Accused persons were arrested and after completion of investigation chargesheet u/s. 452/308/34 IPC was filed against the accused persons before the Court.
3. Charge U/s 452/34 IPC & u/s. 308/34 IPC was framed on 14.05.2012 by Ld. Predecessor of this Court against all the accused persons to which they pleaded not guilty and claimed trial.
4. To prove its case, the prosecution has examined 13 witnesses i.e. PW1 Raj Wali Singh, PW2 Manish Kuamr Singh, PW3 HC Shailender Rathee, PW4 HC Rajbala, PW5 Ct. Jitender, PW6 Suchita, PW7 SI Yogesh Kumar, PW8 Y.M. Maurya, PW9 Ct. Chander Prabha, PW10 Retd. SI Nahar Singh, PW11 Dr. Amit Aggarwal, PW12 Dr. Ajay Sharma & PW13 SI Sunil Kumar.
SC No. 64/15 & Old No. 19/12 State Vs. Neelam etc. Page No.3 of 24
5. PW1 Rajwali Singh has deposed that on 18.06.2010, he and his daughter in law Suchita were present in H. No. L34/6, Mohan Garden, Uttam Nagar, Delhi. He deposed that Zamil Ahmed, Mohsin Ahmed and Neelam came to the house and all the accused persons asked him to vacate the house. His daughter in law refused to do so. Neelam uttered to remaining two accused to attack him and his daughter in law. Accused Mohsin Ahmed and Zamil Ahmed were having dandas in their hand. He also deposed that accused accused Mohsin Ahmed and Zamil Ahmed hit dandas on his head. Accused Neelam gave slaps to his daughter in law. He became unconscious. Some one called his son, who gave information to the police. Police came and removed him to DDU hospital from where he was taken to Safdarjung hospital. This witness proved his statement given to the police as Ex. PW1/A.
6. PW2 Manish Kumar Singh has deposed that on 18.06.2010 at about 2:45 PM, he received a telephone call from his wife that accused persons namely Neelam, Jamil and Mohsin had given beatings to his father and wife. He immediately informed the police at number 100 and also proceeded to his house. When he reached his house, all the three accused persons whom he knew previously had left the house. PCR officials also reached there just before his reaching. This witness deposed that his father and his wife were taken to DDU hospital by the PCR officials. He reached DDU hospital and after giving treatement his father was referred to other hospital.
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7. PW3 HC Shailender Rathee has deposed that on 18.06.2010 he was posted at PS Uttam Nagar. On receipt of rukka sent by SI Yogesh Kumar, he recorded FIR and coputerized copy of FIR is proved as Ex. PW3/A and endorsement made by him is proved as Ex. PW3/B. This witness also deposed that he recorded DD No. 26A regarding registration of FIR.
8. PW4 HC Rajbala has deposed that on receipt of information from PS Ranhola through duty officer, she recorded DD No. 19A. This witness deposed that entry is in her handwriting and copy of same is proved as Ex. PW4/A.
9. PW5 Ct. Jitender has deposed that on 18.06.2010 on receipt of copy of DD No. 19A, he accompanied SI Yogesh Kumar to the spot and he came to know that injured has been taken to DDU hospital. He deposed that lateron SI Nahar Singh came from PS and recovered a wicket of cricket from the spot. The same was sealed with the seal of NS and taken into possession vide memo Ex. PW5/A. This witness deposed that SI Nahar Singh also recovered Sheru (leg of cot) and same was sealed with the seal of NS and took into possession vide memo Ex. PW5/B. This witness has proved wicket as Ex. P1 and sheru (leg of cot) as Ex. P2.
10. PW6 Suchita has deposed that she is a housewife. On 18.06.2010 she was present along with her father in law in the house. At about 2:45/3:00 PM, her mother in law Neelam came inside the SC No. 64/15 & Old No. 19/12 State Vs. Neelam etc. Page No.5 of 24 house and she asked her and her father in law to vacate the house. She replied that she is not willing to vacate the house. In the meantime, accused Jamil Ahmed and Mohsin Ahmed entered inside the house and they asked them to vacate the house. Her father in law refused. This witness further deposed that accused Neelam gave slaps to her face and Neelam instigated accused Jamil and Mohsin to finish her father in law. On which both the accused started beating her father in law with dandas. Her father in law became unconscious and when she raised noise, all the accused persons ran away. She made a telephone call to her husband who was not present at the house at that time. This witness also deposed that she gave intimation to the police at 100 number. After some time, police gypsy came and removed her father in law to DDU hospital and thereafter, he was referred to Safdarjung hospital. This witness deposed that her mother in law had illicit relations with both the accused and she wanted to give the property to them. This witness deposed that sheru (leg of cot) Ex. P2 was in the hand of accused Mohsin, which was lifted by him from her house and wicket Ex. P1 was also lifted from her house.
11. PW7 SI Yogesh Kumar has deposed that on receipt of DD No. 19 A, he along with Ct. Jitender reached to the spot and came to know that injured has been shifted to DDU hospital. He went to DDU hospital and recorded statement of injured Rajbali and received MLC. Doctor had mentioned on the MLC that the injured was conscious and doctor opined that injured was fit to make the statement. This witness proved the statement of injured which is already Ex. PW1/A and proved his SC No. 64/15 & Old No. 19/12 State Vs. Neelam etc. Page No.6 of 24 signature at point A. This witness proved the endorsement on rukka as Ex. PW7/A. This witness deposed that he brought the statement of the injured and the rukka to PS and he handed over the rukka to the duty officer for registration of FIR. SHO entrusted the further investigation to SI Nahar Singh after registration of FIR.
12. PW8 Y.M. Maurya, Emergency Medical Officer, DDU Hospital has identified the signature of Dr. Suhail at point A on the MLC No. 11679 and also identified the MLC. This witness identified the handwriting at portions X to X1 and Y to Y1 on the said MLC to be of Dr. Suhail and stated that he worked with him for three months and seen him writing and signing during the course of official duties. This witness proved the MLC of injured as Ex. PW8/A.
13. PW9 Ct. Chander Prabha has deposed that on 30.07.2010, accused Neelam surrendered before the court of Ld. MM and on the order of Ld. MM, she conducted personal search of accused Neelam and nothing was recovered therefrom. This witness also deposed that she had signed the documents i.e. personal search memo, Jama Talashi and arrest memo of accused Neelam.
14. PW10 Retd. SI Nahar Singh has deposed that on 18.06.2010 at about 6:00 PM, Ct. Jitender came and handed over rukka and copy of FIR to him. He along with Ct. Jitender went to the spot and met a boy namely Manish. Manish informed him that his father had been beaten by 34 boys. There were two dandas lying at the spot i.e. at bat ball SC No. 64/15 & Old No. 19/12 State Vs. Neelam etc. Page No.7 of 24 danda and a danda of charpai. He prepared site plan at the pointing out of Manish and seized both the dandas after preparing seizure memo and sealed the same with the seal of NS. He went in search of accused persons. He recorded the statements of Manish, Suchita & Ct. Jitender.
This witness deposed that on 19.06.2010, Manish handed over the clothes of his father, which was handed over to him by doctor of DDU hospital. He put the clothes in a white pullanda and sealed them with the seal of NS. He also prepared seizure memo of the clothes. This witness proved site plan as Ex. PW10/A. He has also proved seizure memo of bat ball danda i.e. wicket which is Ex. PW5/A and charpai danda which is Ex. PW5/B. This witness also proved the seizure memo of clothes which is Ex. PW2/B. He identified wicket Ex. P1, Sheru (leg of cot) Ex. P2 and clothes of injured Ex. P4.
15. PW11 Dr. Amit Aggarwal has deposed that he has given opinion on the MLC No. 11679 and proved opinion at the portion Z to Z1 on Ex. PW8/A and identified his signatures at point Z2 and Z3 and opined that the nature of injury was dangerous injury based on NCCT findings i.e. on noncontrast CT Scan of the head.
16. PW12 Dr. Ajay Sharma, Medical Officer, DDU hospital has deposed that he had worked with Dr. Suhail for about one year and he had seen him writing and signing various official documents and therefore, he can identify his writing and signatures. This witness deposed that portion encircled as Z on Ex. PW8/A is in the handwriting of Dr. Suhail, which bears the signature of Dr. Suhail at SC No. 64/15 & Old No. 19/12 State Vs. Neelam etc. Page No.8 of 24 point S (his signature is already pointed/shown by A3, A1, A2 and A by some other witness i.e. PW8).
17. PW13 SI Sunil Kumar has deposed that both the accused namely Jamil Ahmed and Mohsin Ahmed had surrendered before the court and he formally arrested both the accused persons in this case. This witness proved the arrest memo of accused Mohsin Ahmed as Ex. PW 13/A, his personal search as Ex. PW13/B. This witness also proved the arrest memo of accused Jamil Ahmed as Ex. PW13/C and his personal search as Ex. PW13/D. This witness proved the arrest memo of accused Neelam as Mark PW13/A, personal search as Mark PW13/B and disclosure statement as Mark PW13/C.
18. Statement of the accused persons U/s 313 Cr.P.C. were recorded in which all the incriminating evidence put to them. Accused Neelam has stated that the property bearing No. L34/6, Mohan Garden, Uttam Nagar, Delhi was purchased by her father in her name. Her daughter in law PW6 Suchitra used to instigate her son and husband against her and filed civil suit against her. When, they failed to get the stay order, they hatched conspiracy with the brother of her daughter in law, who is having criminal back ground and facing several criminal cases. He hired gunda elements and gave beatings to her husband and lateron she is falsely implicated in this case to create pressure upon her for transferring property in their name.
Accused Zamil Ahmed has stated that he was under
treatment in the Charu Clinic situated at Pandav Nagar, Delhi from SC No. 64/15 & Old No. 19/12 State Vs. Neelam etc. Page No.9 of 24 11:00 AM to 08:00 PM on 18.06.2010. He is innocent and falsely implicated in the present case. Similar statement was given by accused Mohsin Ahmed.
19. Accused persons have examined DW1 Smt. Arti and DW2 Dr. R.K. Bhatnagar in their defence.
20. I have heard Ld. Counsel for the accused persons and Ld. Addl. PP for the State at length and and perused the record carefully.
21. It is contended by Ld. Counsel for the accused persons that PW4 has proved DD No. 19A as Ex. PW4/A and son of PW1 Manish has given information to the police that some persons had inflicted knife injury to his father. In DD No. 19A dated 18.06.2010, the name of the accused persons is not mentioned. Accused Zamil Ahmed is not a boy and he is aged about 60 years. Accused persons have been falsely implicated in the present case. The complainant has motive to falsely implicate Neelam, who is wife of PW1 and other accused namely Zamil Ahmed and Mohsin Ahmed. No blood was lifted from the spot. It is not proved that incident has taken place at the house of complainant as alleged by him. No blood on the wicket and sheru (leg of cot) was detected. PW2 has categorically stated that his father was unconscious till 6:00 PM. The incident has taken place in the market. PW7 deposed that statement of PW1 was recorded in presence of PW 2 but PW2 has denied this fact. It is not proved that how and with what weapons injured received injuries and no opinion has been taken SC No. 64/15 & Old No. 19/12 State Vs. Neelam etc. Page No.10 of 24 on record by the IO to prove that injuries are feasible by the wicket and sheru (leg of cot) to the complainant. There is delay in reporting the matter to the police. The matter is not properly investigated. It is also contended that complainant has filed a civil suit against his wife and as he could not obtain any stay from the court so he has falsely implicated the accused persons in the present case. It is prayed that accused persons be acquitted.
On the other hand, Ld. Addl. PP for the State contends that prosecution is able to prove its case beyond reasonable doubt against the accused persons. PW1 has supported the case of the prosecution. PW6 has also supported and corroborated the version of PW1 and they stand firm during their cross examination. Ld. Counsel for the accused is not able to dent the testimony of PW1 & PW6 in any manner. PW6 gas also identified the cricket wicket and sheru (leg of cot) by which the injuries were inflicted by the accused persons. PW11 has deposed that injury was dangerous to life. All the Pws were duly cross examined but nothing fruitful was extracted during their cross examination. PW 1 was again cross examined and he admitted that there was dispute between PW1 and accused Neelam. It is also contended that PW2 at the time of giving intimation to the police was disturbed and he could not narrate the incident to the police as told by her wife and DD No. 19A cannot be treated as FIR. Injured was fit to make statement when his statement was recorded by the police. Accused persons had motive to cause injuries to PW1 as he was in possession of house and the complainant has filed civil suit against his wife Neelam, who is also accused in the present case. It is prayed that accused persons be held SC No. 64/15 & Old No. 19/12 State Vs. Neelam etc. Page No.11 of 24 guilty.
22. Now, I am dealing with the contentions raised by Ld. Counsel for the accused persons and Ld. Addl. PP for the State one by one.
23. It is vehemently contended by Ld. Counsel for the accused persons that in DD No. 19A dated 18.06.2010, the name of the accused persons is not mentioned.
The incident is dated 18.06.2010 at 3:00 Pm. After the incident PW6 Suchita has given intimation to her husband PW2 and PW2 gave intimation to the police at 3:25 PM that some boys have inflicted injuries to his father with knife. SI Yogesh Kumar reached at the spot at about 3:30 PM and came to know that injured has been taken to DDU hospital by PCR van. SI Yogesh Kumar went to hospital and collected MLC of PW1 and recorded his statement. I am of the view that if the names of accused persons is not mentioned in the DD No. 19A then it is of no help to the accused persons as intimation was given by PW6 to her husband PW2. PW2 is not an eye witness of the incident and what he can infer from the information of his wife, he gave information to the police. I am of the view that if the names of the accused persons is not mentioned in the FIR then it is of no help to the accused persons as immediately SI Yogesh Kumar went to the spot and thereafter went to the hospital and recorded statement of PW1 Raj Bali. Moreover, complainant has specifically named all the accused in SC No. 64/15 & Old No. 19/12 State Vs. Neelam etc. Page No.12 of 24 his statement to SI Yogesh Kumar. Thus, this contention carries no force.
24. It is also contended by Ld. Counsel for the accused persons that there is delay in reporting the matter to the police.
I have perused the endorsement on rukka. The incident is dated 18.06.2010 at 3:00 Pm and intimation was given to the police at 3:30 PM and some time must have been consumed by the IO to reach at the spot i.e. H. No. L34/6, Mohan Garden, Uttam nagar, Delhi and from there to reach DDU Hospital. The IO has also recorded the statement of the injured and made endorsement. The statement of complainant and endorsement was completed at 5:30 PM. I am of the view that there is no delay in reporting the matter to the police. Thus, this contention carries no force.
25. In the present case, PW1 has come in the witness box and deposed on the lines of statement made to the police Ex. PW1/A. He categorically stated that on 18.06.2010, Zamil Ahmed, Mohsin Ahmed and Neelam all the accused persons came to his house and asked him to vacate the house. But, his daughter in law has refused to do so. Neelam uttered to remaining two accused to attack him and his daughter in law. Accused Mohsin Ahmed and Zamil Ahmed were having dandas in their hand. He also deposed that accused Mohsin Ahmed and Zamil Ahmed hit dandas on his head. Accused Neelam gave slaps to his daughter in law. He became unconscious.
Similar statement was given by PW6 that her mother in SC No. 64/15 & Old No. 19/12 State Vs. Neelam etc. Page No.13 of 24 law Neelam came inside the house and she asked her and her father in law to vacate the house. She replied that she is not willing to vacate the house. In the meantime, accused Jamil Ahmed and Mohsin Ahmed entered inside the house and they asked them to vacate the house. Her father in law refused. This witness further deposed that accused Neelam gave slaps to her face and Neelam instigated accused Jamil and Mohsin to finish her father in law. On which both the accused started beating her father in law with dandas.
Thus, PW1 & PW6 have corroborated their statements that accused Neelam, Zamil Ahmed & Mohsin Ahmed came at their house and they asked to vacate the house. When they refused to vacate the house, accused Neelam slapped PW6 and accused Zamil Ahmed and Mohsin Ahmed gave danda blows to PW1. Nothing fruitful was extracted during the cross examination of PW1 & PW6 to shatter their testimonies. Rather PW1 categorically stated that dandas were of cricket bat and cot. He also stated that he received injuries at three/four places at his head but he cannot tell the exact place. Similar statement was given by PW6 that her fatherinlaw attacked with dandas 34 times and PW1 started bleeding. She also deposed that she gave intimation to her husband PW2, who intimated the police. From the testimony of PW1 and PW6, it is proved that accused persons inflicted injuries to PW1 in furtherance of their common intention.
26. It is the defence of the accused Jamil Ahmed and Mohsin Ahmed that they were tenants at the house of PW1 about 45 years ago and suggestion was given that PW1, PW2 and PW6 that they used to SC No. 64/15 & Old No. 19/12 State Vs. Neelam etc. Page No.14 of 24 beat accused Neelam. Accused Jamil Ahmed and Mohsin Ahmed used to save her. PW1 has denied that accused Jamil Ahmed and Mohsin Ahmed was ever tenants in his house about 45 years ago. PW6 also denied that accused Jamil Ahmed and Mohsin Ahmed were tenants in their house. No document has been placed on record by accused Jamil Ahmed and Mohsin Ahmed to show that they were tenants in the house of PW1. Thus, this contention carries no force.
27. It is vehemently contended by ld. Counsel for accused persons that there are contradictions in the statement of PW1 & PW2. PW7 has stated that statement of injured was recorded in the presence of Manish Kumar PW2, whereas PW2 has stated that statement of PW1 was not recorded in his presence. PW10 SI Nahar Singh has stated that statement of PW1 was recorded at 8:00 PM and till 8:00 PM complainant has not disclosed the names of the assailants.
This contention of Ld. Counsel for the accused persons carries no force, as firstly statement was recorded by SI Yogesh Kumar and SI Yogesh Kumar recorded the statement of PW1 and rukka till 5:30 PM and thereafter, FIR was registered and same was handed over to SI Nahar Singh. PW10 has categorically stated that names of the accused persons were disclosed by the witness Manish and Smt. Suchita therefore, he conducted his investigation in that direction. I am of the view that this contention of Ld. Counsel for the accused persons carries no force, when at about 5:30 PM statement of PW1 was recorded. No major contradiction is pointed by the Ld. Counsel for the accused in the statements of PW1 and PW6. If there is contradiction whether the SC No. 64/15 & Old No. 19/12 State Vs. Neelam etc. Page No.15 of 24 statement of PW1 was recorded in the presence of PW2 or not, I am of the view that this is minor contradiction and does not go to the root of the case. Moreover, Hon'ble Supreme Court has observed in judgment titled as "State of U.P. v. Naresh" (2011) 4 SCC 324 that "in all criminal cases, normal discrepancies are bound to occur in the depositions of witnesses due to normal errors of observation, namely, errors of memory due to lapse of time or due to mental disposition such as shock and horror at the time of occurrence. Where the omissions amount to a contradiction, creating a serious doubt about the truthfulness of the witness and other witnesses also make material improvement while deposing in the court, such evidence cannot be safe to rely upon. However, minor contradictions, inconsistencies, embellishments or improvements on trivial matters which do not affect the core of the prosecution case, should not be made a ground on which the evidence can be rejected in its entirety. The court has to form its opinion about the credibility of the witness and record a finding as to whether his deposition inspires confidence. Exaggerations per se do not render the evidence brittle. But it can be one of the factors to test credibility of the prosecution version, when the entire evidence is put in a crucible for being tested on the touchstone of credibility."
28. It is vehemently contended by Ld. Counsel for the accused persons that Dr. Suhail, who has prepared the MLC of the injured has not been examined as a witness and to prove MLC Sh. Y.M. Maurya has been examined by prosecution. Thus, MLC of injured is not proved.
SC No. 64/15 & Old No. 19/12 State Vs. Neelam etc. Page No.16 of 24 PW8 Y.M. Maurya, Emergency Medical Officer, DDU Hospital has clearly stated that he can identify the handwriting of Dr. Suhail and he proved the MLC No. 11679 as Ex. PW8/A. In cross examination this witness admitted that his name is mentioned on the MLC and he has categorically stated that he had seen Dr. Suhail signing in this manner. Similarly, Dr. Ajay Sharma, PW12 has also proved that he had worked with Dr. Suhail for about one year and he had seen him writing and signing various official documents, therefore, he can identify his writing and signatures. PW12 also identified the signature of Dr. Suhail on Ex. PW8/A. MLC of injured was proved in the testimony of PW8 & PW12. Thus, this contention carries no force.
29. It is vehemently contended by Ld. Counsel for all the accused that PW12 is not able to tell as to with what weapon injuries were caused and he also not able to tell the number of weapons used for causing the injuries to the injured.
This contention of Ld. Counsel for the accused persons, holds no water, as this witness has only identified the signatures of Dr. Suhail and no opinion of PW12 is on the record.
30. In the present case, Dr. Amit Aggarwal, who had given opinion appeared as PW11 and stated that he was called as a Surgical Specialist and he had given his opinion from portion Z to Z1 on MLC Ex. PW8/A which is in his handwriting and signatures at points Z2 & Z3 and he has opined the nature of injury as dangerous injury based on NCCT findings i.e. on noncontrast CT Scan of the head.
SC No. 64/15 & Old No. 19/12 State Vs. Neelam etc. Page No.17 of 24 In the present case injured Raj Bali received three injuries which are as under: (I) CLW over left parietal region 5 cm x 0.5 cm approx. (II) CLW over occipital region 6 cm x 1 cm approx.
(III) CLW over occipital region 5 cm x 0.5 cm approx. Abrasion and tenderness over right back.
Thus, in view of the statement of PW11 the injuries are dangerous to life based on NCCT findings i.e. on noncontrast CT Scan of the head. Nothing fruitful was extracted during the cross examination of PW11 to show that injuries were not dangerous.
31. In the present case, accused persons have taken defence that some unknown persons had caused injuries to the complainant in the market but no evidence has been adduced by the accused persons to show that injured was given beating in the market by some unknown persons. In the statement recorded u/s. 313 Cr.P.C accused Neelam has taken defence that the brother of PW6 is having criminal back ground and he had hired gunda elements and gave beatings to her husband somewhere in the market and lateron she has been falsley implicated in this case.
No eye witness has been brought on record by accused Neelam to show that her husband was given beating by some unknown persons, who were hired by the brother of PW6. Thus, in absence of any evidence it cannot be held that incident had taken place in the market. PW10 has categorically stated that incident had taken place in SC No. 64/15 & Old No. 19/12 State Vs. Neelam etc. Page No.18 of 24 the house. This witness stated that no incident of stabbing came to light in view of DD No. 19A, infact quarrel has taken place inside the house. Thus, incident had taken place in the house of PW1 as stated by him.
32. It is vehemently contended by Ld. Counsel for the accused that no blood was lifted from the spot and clothes of PW1 were not sent to the FSL. Thus, it belies the case of the prosecution.
I am of the view that if there is any lapse on the part of investigating officer then no benefit can be given to the accused persons on this account. Thus, this contention carries no force.
33. It is contended by Ld. Counsel for the accused persons that accused Neelam was not present at the house at the time of incident and she was present at the house of DW1 and DW1 proved that on 18.06.2010 accused Neelam was present at her house.
I have perused the statement of DW1. DW1 Smt. Arti has deposed that on 18.06.2010, Neelam was staying at her home. Neelam received a phone call from her neighbour that fight had taken place with her husband and accused Neelam went to her home. In cross examination by Ld. Addl. PP for the State this witness stated that on 17.06.2010, Neelam reached her home by bus in afternoon. She received phone call on 18.06.2010 in the evening at about 4:00 or 5:00 PM and she returned within one hour. This witness also admitted that distance between Begam Pur, Rohini and Uttam Nagar, Mohan Garden is of about one hour by bus or TSR. If the accused Neelam was present SC No. 64/15 & Old No. 19/12 State Vs. Neelam etc. Page No.19 of 24 at Begam Pur, Rohini at the time of incident and admittedly, if she went to Uttam Nagar and again came back, I am of the view that it is not possible to visit and come back from Uttam Nagar in one hour by bus or any other transport. Thus, it is not proved that accused Neelam was present at the house of DW1 at the time of incident.
34. Accused Zamil Ahmed and Mohsin Ahmed has brought DW 2 Dr. R.K. Bhatnagar to prove that they were not present at the time of incident at the place of occurrence as Jamil Ahmed was under
treatment in Charu Clinic situated at Pandav Nagar, Delhi from 11:00 AM to 8:00 PM on 18.06.2010 and accused Mohsin Ahmed was also present there to lookafter him. DW2 has placed on record prescription Ex. DW2/A and certificate Ex. DW2/B. I have perused the document Ex. DW2/B. This is prescription slip of DW2, who is running a clinic at Ganesh Nagar, Pandav Nagar, Delhi110092 where as accused Jamil Ahmed is residence of Harijan Basti, New Rohtak Road, New Delhi. I am of the view that there was no occasion for accused Jamil Ahmed to get himself admitted in the area of East Delhi, Pandav Nagar, as distance between the house of accused Jamil Ahmed and clinic is about 2528 Kms.
The certificate Ex. DW2/A shows that accused Jamil Ahmed was admitted in the clinic and he was advised bed rest for seven days. I agree with the contention of Ld. Addl. PP for the State that to advise of bed rest is contrary to the admission in the clinic, as if a person is admitted in a clinic he cannot be advised bed rest and bed SC No. 64/15 & Old No. 19/12 State Vs. Neelam etc. Page No.20 of 24 rest can be advised only at the time of discharge. Moreover, DW2 has admitted that no medical file was prepared regarding the admission of accused Jamil Ahmed. This witness also stated that he had no where entered medical certificate Ex. DW2/B in the register of issuing medical certificate. He has not placed on record any discharge certificate to show that accused Jamil Ahmed was discharged from his clinic. As, no document has been placed on record by DW2 to show that accused Jamil Ahmed was admitted in his clinic on 18.06.2016, no reliance can be placed on the testimony of DW2.
35. It is vehemently contended by Ld. Counsel for the accused persons that PW1 was examined and cross examined on 09.08.2012 and he was again cross examined on 07.10.2014 wherein he has admitted that settlement was arrived between him and his wife and other two accused persons. He has also admitted that he had filed a petition for quashing of FIR. He has also admitted that suits filed by him and by his wife has been withdrawn. Thus, accused person be acquitted.
I fail to appreciate this contention of Ld. Counsel for the accused persons as on 09.08.2012 PW1 was examined and cross examined and after that again application for cross examination of PW 1 was filed. In his cross examination daetd 07.10.2014, PW1 has not denied the incident rather in cross examination by Ld. Chief Prosecutor for the State, he has stated that statement made on 09.08.2012 before the court is true and had been made by him without any pressure. Thus, in view of the statement dated 07.10.2014 of PW1 that he has SC No. 64/15 & Old No. 19/12 State Vs. Neelam etc. Page No.21 of 24 made statement dated 09.08.2012 without any pressure, no benefit can be given to the accused persons that complainant has settled the matter with them. Moreover, Hon'ble High Court has not quashed the FIR and order of the Hon'ble High Court reveals that Ld. Counsel for the accused persons has withdrawn the petition for quashing of FIR. Thus, this contention carries no force.
36. Ld. Counsel for the accused has placed reliance on judgment AIR 2002 Supreme Court 620 titled as "State of Haryana Vs. Ram Singh" where it is held that "Eye witnesses account running counter to medical evidence. Nature of weapon not mentioned in report by doctor though dead body was referred to Xray, for ascertaining the same and Xray report was not shown to doctor. No other credible evidence on record to prove prosecution case."
I have perused this judgment with utmost regard. I am of the view that this judgment is not helpful to the accused persons as PW11 has given opinion as dangerous in nature.
Ld. Counsel for the accused persons has also placed reliance on judgment AIR 2011 Supreme Court 2302 titled as "A. Shankar Vs. State of Karnataka".
I have perused this judgment with utmost regard but this judgment is not helpful to the accused persons, as in the present case PW1 & PW6 have corroborated their version and PW2 has also corroborated that he received information about the incident and he gave intimation to the police through his mobile.
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37. Ld. Counsel for the accused persons has also placed reliance on judgment (1987) 1 Supreme Court Cases 679 titled as "Amar Singh & Ors. Vs. State of Punjab" wherein it is held that testimony of prosecution witness is totally inconsistent with medical evidence. No injuries conforming to the alleged weapons used found on the dead body, inconsistency not explained, entire prosecution case discredited. In the present case, there is no inconsistency between the medical evidence and ocular evidence of PW1. As per MLC PW1 received three injuries on his head and PW1 has categorically stated that three injuries were given on his head and similar statement was given by PW6. Thus, this judgment is not helpful to the accused persons.
Ld. Counsel for the accused persons has also placed reliance on judgment 2013 (1) JCC 599 titled as "State Vs. Narayan Singh & Ors." I have perused this judgment with utmost regard but this judgement is not helpful to the accused persons in any manner.
38. In the present case, accused persons inflicted injuries on the head of PW1 and as per opinion of doctor the nature of injury was dangerous injury based on NCCT findings i.e. on noncontrast CT Scan of the head. Moreover, three injuries i.e. CLW over left parietal region 5 cm x 0.5 cm approx., CLW over occipital region 6 cm x 1 cm approx. & CLW over occipital region 5 cm x 0.5 cm approx. were inflicted on the head of the complainant, I am of the view that accused persons were having knowledge that by inflicting such injuries, they were likely to cause death of PW1.
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39. In view of above facts and circumstances, I am of the considered opinion that the prosecution has fully proved its case and established that accused persons committed house trespass in the house of complainant and caused injuries to the complainant. Thus, all the accused are held guilty and convicted for the offence u/s. 308/34 IPC and u/s. 451/34 IPC. All the accused persons committed house trespass in order to commit the offence and it is not proved whether the accused persons had brought dandas i.e. cricket wicket and sheru (leg of cot) with them. Thus, no offence u/s. 452/34 IPC is made out against the accused person and offence u/s. 451/34 IPC is made out against the accused persons.
Convicts be heard on the Quantum of Sentence on 30.07.2016.
ANNOUNCED IN THE OPEN COURT (NARESH KR. MALHOTRA) ON 29th July, 2016. ADDITIONAL SESSIONS JUDGE05 (WEST) DELHI / TIS HAZARI COURTS SC No. 64/15 & Old No. 19/12 State Vs. Neelam etc. Page No.24 of 24 IN THE COURT OF SH. NARESH KUMAR MALHOTRA, ADDITIONAL SESSIONS JUDGE05, WEST, TIS HAZARI COURTS, DELHI.
IN THE MATTER OF S.C. No. 64/15, Old No. 19/12, New No. 56115/16.
FIR No. 199/10.
P.S. Uttam Nagar.
U/S 452/308/34 IPC STATE VERSUS
1. Neelam W/o Rajbali, r/o L3,4/6, Mohan Garden, Uttam Nagar, Delhi.
2. Mohsin Ahmad, S/o Zamil Ahmad, r/o 2/45, Harijan Basti, New Rohtak Road, Delhi.
3. Zamil Ahmad, S/o Shaifiq Ahmad, r/o 2/45, Harijan Basti, New Rohtak Road, Delhi.
ORDER ON SENTENCE 30.07.2016 :
Present : Sh. B.B. Bhasin, Ld. Addl. PP for the State.
Sh. Alamgir, Ld. Counsel for all the Convicts. All the convicts are in J.C. SC No. 64/15 & Old No. 19/12 State Vs. Neelam etc. Page No.25 of 24 Contd....2.
: 2 :
It is contended by Ld. Counsel for the convicts that convicts be released on probation. He has placed reliance upon judgment titled as "Sitaram Paswan and Anr. Vs. State of Bihar" AIR 2005 Supreme Court 3534.
I have perused this judgment with utmost regard, but this judgment is in respect of Section 323/324 IPC and same is not applicable to the case in hand.
Ld.defence counsel has also placed reliance upon judgment titled as Sheetala Prasad & Ors. Vs. Sri Kant and Anr." 2010 Cri. L. J. 1404.
In this judgment appellants had committed offences punishable u/s. 148/324/ r/w Section 149 IPC and Section 429 r/w Section 149 IPC but this judgment is not applicable to the facts and circumstances of the present case.
He has also placed reliance on judgment titled as "State of Haryana Vs. Prem Chand" (1997) 7 Supreme Court Cases 756. In this judgment Hon'ble Apex Court has granted probation to Prem chand, who was convicted under the provisions of Sections 376/511 IPC and the accused was less than 21 years of age. I am of the view that this judgment is not helpful to the convicts.
On the other hand, Ld. Addl. PP for the State has contended that the convict Neelam was having illicit relations with one of the convict Zamil Ahmed and she is not residing with her husband. All the convicts have caused injuries "dangerous to life" to the complainant, SC No. 64/15 & Old No. 19/12 State Vs. Neelam etc. Page No.26 of 24 who is the husband of convict Neelam.
Contd....3.
: 3 :
In view of the above, I am not inclined to grant benefit of Probation to all the Convicts.
At this stage, it is further contended by the Ld. Counsel for the convicts that convict Zamil Ahmed is aged about 60 years. He is doing social work. He is the president of "Mian Zamil Shah Sabri Hindu Muslim Ekta Sangthan". It is also contended that convict Zamil Ahmed is also helping the poor persons and performing the marriages of poor persons.
It is also contended that convict Mohsin Ahmed is aged about 29 years. He is married and having three children.
It is also contended that convict Neelam is residing alone and she is working as maid in the houses of other persons. She is not residing with her husband, her son and daughter in law, as they used to beat her. It is prayed that lenient view be taken against the convicts.
On the other hand, Ld. Addl. PP for the State contends that for deciding quantum of sentence, the court has to see mitigating and aggravating circumstances and nature of offence. In the present case, convict Neelam was having illicit relations with one of the convict Zamil Ahmed and all the convicts have caused injuries dangerous to life on the person of the husband of Neelam, who is complainant in the present case. It is prayed that adequate punishment be given to the convicts.
I have perused the record. I have also considered the SC No. 64/15 & Old No. 19/12 State Vs. Neelam etc. Page No.27 of 24 exonerating and aggravating circumstances in this matter.
In the present case convict Neelam was having illicit relations with Zamil Ahmed and due to this reason there was a dispute between her and her husband. The house is in the name of convict Contd....4.
: 4 :
Neelam in which her husband, her son and daughter in law were residing on the day of incident. It is also admitted fact that husband of Neelam filed a civil suit and convict Neelam was not residing with her husband. On the day of incident she along with other convicts Zamil Ahmed and Mohsin Ahmed attacked her husband and due to this her husband received injuries which are dangerous to life.
In the Judgment reported in case titled as "State of Uttar Pradesh Vs. Krishan" AIR 2005 SC 1250, the Hon'ble Supreme Court has made the observation that the court will be failing in its duty if appropriate punishment is not awarded for crime which has been committed not only against the individual victim but also against the society to which the criminal and the victim belong. The court observed that the punishment to be awarded for crime was not be irrelevant but it should confirm to and consistent with the atrocity and brutality with which the crime has been perpetrated. In "Sidharma Vs. State of Karnataka" AIR 2006 SC 3265, the Hon'ble Supreme Court reemphasized the need to strike a balanced proposition between the crime and the punishment. The court observed that imposition of appropriate punishment is the manner in which the court responds to the society's cry for justice against the criminal. It was held that justice SC No. 64/15 & Old No. 19/12 State Vs. Neelam etc. Page No.28 of 24 demands that court should impose punishment befitting the crime so that the court reflects public abhorrence of the crime and the court must not only keep in view the rights of a criminal but also the rights of victims of the crime and society at large while considering the imposition of appropriate punishment.
Contd....5.
: 5 :
In a recent decision in "State of Madhya Pradesh Vs. Surender Kumar" 2015 (V) AD (SC) 315, the Apex Court has observed that undue sympathy by means of imposing inadequate sentence would do more harm to the criminal justice system as it may undermine the public confidence in the efficacy of law. It was held that it was the duty of the court to award proper sentence having regard to the nature of offence and the manner in which it was committed. In "Ahmad Hussain Vali Mohd.Saiyed Vs. State of Gujarat" 2007 (7) SCC 254, a three judges bench of the Apex Court has deprecated the practice of taking liberal attitude by imposing meager sentence or making or taking too sympathetic view merely on account of lapse of time. The court held that such a practice would be counter productive in the long run and against the interest of the society which needs to be cared for and strengthened and string of deterrence should be inbuilt in the sentencing system. It was held that it is the demand of justice that court should impose punishment befitting the crime so that the court reflects public abhorrence of the crime. It was reiterated that the court would be failing on its duty if appropriate punishment is not awarded for a crime.
SC No. 64/15 & Old No. 19/12 State Vs. Neelam etc. Page No.29 of 24 I am of the view that ends of justice will suffice, if all the convicts namely Neelam, Zamil Ahmed and Mohsin Ahmed are sentenced to undergo Rigorous imprisonment for a period of 3 years each and fine of Rs.20,000/ each for the offence U/s. 308/34 IPC and in default of payment of fine, they shall further undergo SI for six months each. Further, it is ordered that out of fine of Contd....6.
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Rs.20,000/ each (I.e.total of Rs.60,000/), Rs.18,000/ each will go to the complainant i.e. total amount of Rs.54,000/.
Further all the convicts namely Neelam, Zamil Ahmed and Mohsin Ahmed are sentenced to undergo Rigorous imprisonment for a period of two years each and fine of Rs. 1,000/ each for the offence U/s. 451 IPC and in default of payment of fine, they shall further undergo SI for seven days each.
Both the sentences of the convicts shall run concurrently. Benefit of Section 428 Cr.P.C. be given to all the convicts.
Fine not paid.
Copy of the Judgment and Order on Sentence be given to all the convicts free of cost.
Case property, if any, be disposed of/destroyed, after the expiry period of Appeal.
File be consigned to record room, after necessary compliance.
ANNOUNCED IN THE OPEN (NARESH KR. MALHOTRA) COURT ON: 30.07.2016. ASJ05 (West), THC, Delhi.
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