Delhi District Court
Guilty Of Murder. As Per Case Law Titled ... vs State Of Punjab, on 24 October, 2017
IN THE COURT OF SH. CHANDRA SHEKHAR, ADDITIONAL
SESSIONS JUDGE02 (CENTRAL)/TIS HAZARI COURTS/
DELHI
Sessions Case No. 28165/16
CNR No. DLCT010033642015
FIR No. 258/14
U/s: 307 IPC
PS: Jama Masjid
In the matter of:
STATE
Versus:
Kamaluddin Mandal S/o Ichahaq Mandal
R/o V.P.O. Ramnath Pur, PS Deoganga,
District 24 North Pargana, West Bengal.
Date of Institution : 27.03.2015
Date of Reserving Judgment : 23.10.2017
Date of Pronouncement : 24.10.2017
Conclusion : ACQUITTAL
Pages: 1 to 19
JUDGEMENT:
Precisely, the case of the prosecution is that on 26.10.2014, Ct. Mohd. Iqbal was on duty as Civil PSO for security of Shahi Imam Maulana Sayed Ahmed Bukhari in Jama Masjid Delhi. Ct. Aas Mohd.; who was in Civil Screening Staff, in the office of aforesaid Imam, was also present in said Jama Masjid. At about 05.45 PM, Shah Imam was standing at Musalla near Mimber to offer Namaz of Magreeb. Ct. Mohd. Iqbal and Ct. Aas Mohd. were standing behind Imam. The other Namazees were standing SC No. 28165/16, FIR No. 258/14, State v. Kamaluddin Mandal Page 1 of 19 behind them on mat (Daree) and there was no noise as during Namaz no conversion is made. At about 05.50 PM, Imam and other Namazees formed 'Niyat,' before offering Namaz but; suddenly, Ct. Mohd. Iqbal saw that a boy aged about 3032 years came from backside and stood at his right side. The said boy took out a lighter, by his left hand, from leftpocket of his pant and by his right hand, he took out, something wrapped in a handkerchief, from his left side dub of the pant, the smell of kerosene oil was spread from it. Ct. Mohd. Iqbal immediately, caught hold of the left hand of that boy in which he was holding the lighter but; the said boy asked him to leave him and said that on that day, he would kill Imam by fire but; before that boy could light up and burn the thing which was wrapped in the handkerchief, he snatched the lighter from his left hand. But; in the meanwhile that boy had thrown that 'thing' which was wrapped in his handkerchief towards Imam. Ct. Mohd. Iqbal assisted by Ct. Aas Mohd. and one Namazee Akhtar Hussain over powered that boy, who on enquiry disclosed his name as Kamaluddin Mandal S/o Sh. Ichahaq Mandal, R/o VPO Ramnath Pur, PS Deoganga, District, 24 North Pargana, West Bengal. Ct. Mohd. Iqbal lifted that thing which was thrown and wrapped in the handkerchief and found that it was a plastic bottle of 250 ml of cold drink which was not having lid on it and was filled about 1/4 with kerosene oil. Ct. Mohd. Iqbal handed over that boy to the police along with the said plastic bottle with some kerosene oil in it and the handkerchief in which it was wrapped. The said boy had attempted to kill Maulana Sayed Ahmed Bukhari by attempting to light up the handkerchief with the help of kerosene oil. The police recorded the statement of Ct. Mohd. Iqbal and on SC No. 28165/16, FIR No. 258/14, State v. Kamaluddin Mandal Page 2 of 19 the basis of the same, registered a case vide FIR No. 258/14, u/s 307 IPC, PS Jama Masjid. The accused was arrested and after completion of investigation, charge sheet under the aforesaid section was filed in the court by Ld. Area Magistrate.
2. The Ld. Area Magistrate took cognizance of the offence u/s 307 IPC and found that the case is exclusively triable by Sessions Court and hence committed the case to Sessions Court on 24.03.2015. The case was assigned to this court on 27.03.2015 by Ld. District and Sessions Judge, Delhi, but; on perusal of judicial record it was found that accused was not mentally stable, yet Ld. MM had not conducted enquiry u/s 328 (3) Cr.P.C. to ascertain about the mental capabilities of accused to understand the legal proceedings of the case and making his defence, therefore, the file was sent back to Ld. Area Magistrate through the office of Ld. District & Sessions Judge (HQ) for conducting the necessary enquiry under aforesaid provisions.
(a) The Ld. Area Magistrate conducted enquiry u/s 328 (3) Cr.PC and observed that the medical report exhibit CW1/A given by medical board shows that there existed some indirect evidences being moderate to high probability that on the day of alleged incident the patient might have been suffering from disorder namely paranoid schizophrenia.
But; the said report did not reflect on the aspect of the capacity of the prisoner accused, Kamaluddin Mandal for making his defence during trial.
The touchstone of the enquiry under the provisions under SC No. 28165/16, FIR No. 258/14, State v. Kamaluddin Mandal Page 3 of 19 section 328 of the Cr.P.C. is, not that the accused was or was not in a sound state of mind when the alleged offence was committed; rather the index was the capacity of the accused to make his defence during the trial of the case. Therefore, in the aforesaid facts and circumstances and also after considering the statements made by medical practitioners as well as after thorough perusal of the medical report, the Ld. MM was of the view that the accused, Kamaluddin Mandal was capable of making his defence during the trial of the case and his finding was further fortified by the memorandum of question and answer which was put to the accused by the legal aid counsel and recorded on 15/07/2015. Therefore, Ld. MM again observing that case u/s 307 IPC is exclusively triable by the Sessions Court, committed the case to Sessions Court on 28.07.2015. The case was again assigned to this court on 10.08.2015 for trial.
3. Ld. Addl. PP for the State and Ld. Defence Counsels for the accused were heard on the point of charge. A perusal of record revealed a prima facie case under Section 307 IPC against the accused, therefore, on 04.09.2015, charge under the aforesaid sections was framed against the accused and the same was read over and explained to him in his vernacular and asked whether he pleads guilty or claims trial. He did not plead guilty and claimed trial.
4. The opportunity was given to Addl. PP for the State to lead prosecution evidence to prove charges against the accused, who examined following witnesses:
SC No. 28165/16, FIR No. 258/14, State v. Kamaluddin Mandal Page 4 of 19PW1: Ct. Mohd. Iqbal was complainant who reported about the commission of offence to the police and on whose statement FIR was lodged vide Ex. PW1/B, he also exhibited the Seizure memo of articles recovered from the accused vide Ex. PW1/A, Site plan vide Ex. PW1/C, Seizure memo of mat on which Maulana Sayed Ahmed Bukhari was standing vide Ex. PW1/D, the Arrest memo of the accused vide Ex. PW1/E, the Personal search memo of the accused vide Ex. PW1/F, he also exhibited recovered articles such as lighter, Ex.P1, handkerchief Ex. P2, plastic bottle Ex. P3, mat Ex. P4 and dari Ex. P5.
PW2 Akhtar Hussain was one of the Namazees who assisted Ct. Mohd. Iqbal and Ct. Aas Mohd. to overpower the accused when he was attempting to commit the offence.
PW3 Deepak Kumar, he deposed on behalf of Dr. N.G. Desai and exhibited his reports as Ex.Pw3/A and Ex.Pw3/B. PW4 SI Pankaj Kumar was Incharge of the crime team, who reached on spot after receiving information about the incident and Ct. Devi Singh took photographs of the spot on his directions.
PW5 Ct. Aas. Mohd. deposed the same facts as were deposed by PW1 Ct. Mohd. Iqbal.
PW6 ASI Kundan Singh was duty officer who recorded the FIR and exhibited copy of the same vide Ex.PW6/A and endorsement on the same vide Ex.PW6/B. PW7 Ct. Sachin assisted the first investigating officer Parveen Kumar on the spot and exhibited disclosure statement of the accused.SC No. 28165/16, FIR No. 258/14, State v. Kamaluddin Mandal Page 5 of 19
PW8 Dr. Virender Singh was one of the members of the medical board; which examined the accused in IHBAS hospital on 03.12.2014, he exhibited the report of medical board vide Ex.PW8/A. PW9 Devi Sahai was one of the members of the crime team who took photographs of the spot of occurrence on 26.10.2014 vide Ex.
PX1 to Ex. PX6 and negatives vide Ex. PW7.
PW10 Lingraj Sahoo was Scientific Officer, FSL; he scientifically examined the articles sent by the investigation office in FSL and gave his report vide Ex.PW10/A. PW11 Praveen Kumar, he was the first IO.
PW12 Maulana Sayed Ahmed Bukhari was the Shahi Iman in the Jama Masjid Delhi, accused attempted to kill him.
PW13 Prof (Dr.) Nimesh G. Desai; was Director IHBAS, he was one of the members of the medical board on 03.12.2014, 31.12.2014 and 04.12.2015 he exhibited the reports of the board already exhibited vide Ex. CW4/A, Ex.PW3/A and Ex.PW3/B receptively.
PW14 Ct. Mangla Ram deposed similar facts as were deposed by PW1 Ct. Mohd. Iqbal and PW5 Ct. Aas Mohd.
PW15 SI Sushil Kumar was on petrolling duty on 26.10.2014, on receiving the information about the incident; he reached to the spot and participated in investigation on that day and thereafter on 27.10.2014 and 01.11.2014.
PW16 Inspector Pradeep Kumar Paliwal was second IO, he completed the investigation and after that filed the charge sheet against the accused in the court.
SC No. 28165/16, FIR No. 258/14, State v. Kamaluddin Mandal Page 6 of 195. After completion of prosecution evidence, all incriminating evidences on record against the accused was brought into his notice on 06.10.2017 u/s 313 Cr.P.C and his explanation was recorded separately. The opportunity was given to accused to lead defence evidence but, he did not lead any defence evidence though, he stated that he has been falsely implicated in this case.
6. The accused was directed to furnish his bail bond under Section 437A of Cr.P.C. before conclusion of trial, he could not furnish his surety bond, therefore at his request, he was allowed to furnish personal bond, he furnished the same, it was accepted and kept on record.
7. I have patiently heard the submissions made by Ld. Additional Public Prosecutor for the State and Ld. Defence Counsel for the accused.
Ld. Additional Public Prosecutor has submitted that case of the prosecution has been proved beyond reasonable doubt from the deposition of PW1 Ct. Mohd. Iqbal, PW5 Ct. Aas Mohd. and public witness PW2 Akhtar Hussain. The deposition of PW10 Lingraj Sahoo, the Scientific Officer also supports the deposition of Ct. Mohd. Iqbal.
Ld. Defence Counsel for the accused has submitted that as per documents Ex. PW8/A, CW4/A, CW3/A and CW3/B which are the time to time reports of the Medical Board, clearly show that the accused was suffering from paranoid schizophrenia for the last three years therefore, on the date of incident also, the accused was suffering from the aforesaid disease and had committed the act under the influence of that SC No. 28165/16, FIR No. 258/14, State v. Kamaluddin Mandal Page 7 of 19 disease; the person from whom, the accused had purchased the kerosene oil, was not examined by the prosecution; the Shahi Imam Sh. M.S.A. Bukhari did not make any complaint against the accused, he was not having any enmity with the accused and no kerosene oil was found on his clothes; when the bottle was produced in the court, it was empty and was not containing the kerosene oil. Therefore, the case of the prosecution has not been proved beyond reasonable doubt.
8. I have considered the submissions of Ld. Addl. PP for the state and Ld. Defence Counsel for the accused and perused the judicial record and relevant provisions of the law.
9. The case of prosecution is primarily based on the depositions of PW1 Ct. Mohd. Iqbal, PW 5 Ct. Aas Mohd., public witness PW2 Akhtar Hussain. The evidence of PW10 Lingraj Sahoo, Scientific Officer, FSL is supportive evidence to show that kerosene oil was found on the articles sent for scientific examination.
But; the evidence of PW2 Akhtar Hussain is in direct conflict with the deposition of PW1 Ct. Mohd. Iqbal and PW 5 Ct. Aas Mohd. on two material aspects; first on the aspect of as to who apprehended the accused first, and second on the aspect of language in which accused shouted at the time of incident. The depositions of PW12 Maulana Sayed Ahmed Bukhari and PW14 Ct. Mangla Ram do not support the case of the prosecution.
SC No. 28165/16, FIR No. 258/14, State v. Kamaluddin Mandal Page 8 of 19The deposition of other prosecution witnesses is not significant as they are formal in nature; since they were not present on the spot when the incident took place.
(10) The testimonies of the aforesaid witnesses have been analyzed, discussed and evaluated in brief as under:
(i) PW1 Ct. Mohd. Iqbal:
In brief, he deposed that he was working as PSO of Shahi Imam Mr. M.S. A. Bukhari, since 2013. On 26.10.2014 he was on duty since 08.00 AM to 08.00 PM. On that day, he and Ct.Aas Mohd. of Civil Training Staff were present with Mr. Bukhari in Jama Masjid Delhi. Mr. Bukhari used to go for Namaz of Magrib (evening). On that day, at about 05:45 PM Mr. Bukhari was standing on the Musalla (dias) for offering Namaz. He and Ct. Aas Mohd. were standing just behind Mr Bukhari. The other Namazees were standing on the mats behind them. During Namaz, there used to be a complete silence.
At about 5:45 PM Sh. Bukhari and all other Namazees folded their hands (Niyat Bandhana) before starting the Namaz, when he heard that somebody was coming from behind. When he saw behind, he noticed that accused was coming from right side and he took out a lighter from the left side pocket of his pant from his left hand and lifted his shirt from left side with his right hand and took out something wrapped in a handkerchief; which he was hiding under the waist belt of his pant. It smelled like kerosene oil. On suspicion, he caught hold of his left hand in which he was SC No. 28165/16, FIR No. 258/14, State v. Kamaluddin Mandal Page 9 of 19 holding the lighter. Accused shouted "MUJHE CHHOD DO, AAJ MEIN IS IMAM KO JALA KAR MARUNGA". He tried to lit the lighter, however he snatched the lighter from his hand. In the meanwhile accused threw the thing which was wrapped in handkerchief towards Mr. Bukhari. He along with Ct. Aas Mohd. and one Namazee Akhtar Hussain overpowered the accused. Accused disclosed his name as Kamaluddin Mandal. When he checked the handkerchief he found that one 250 ml cold drink bottle without lid was wrapped in the same and it was filled with about ¼ with kerosene oil.
After some time, Inspector Praveen Kumar along with other staff had come to the spot; he handed over the accused along with handkerchief, bottle containing kerosene oil and lighter to him. The lighter was in working condition. Inspector Praveen Kumar kept the lighter into a clothe pullanda which was sealed with the seal of JMII. Another lid of the bottle was brought, from which neck of the bottle was closed. Inspector Praveen Kumar kept the bottle and the handkerchief in a polythene bag, prepared the cloth pullanda and sealed it with the seal of JMII. He prepared seizure memo exhibit PW1/A, Inspector Praveen Kumar recorded his statement Ex. PW1/B. He prepared rukka and got registered the FIR. Further investigation was carried out by Inspector Pradeep Kumar Paliwal, who also came to the spot. Inspector Praveen Kumar handed over the accused, sealed pullanda and other documents to the Inspector Pradeep Kumar Paliwal, who prepared the site plan at his instance vide exhibit PW 1/C. Inspector Pradeep Kumar Paliwal also took into possession a mat SC No. 28165/16, FIR No. 258/14, State v. Kamaluddin Mandal Page 10 of 19 lying on the spot, which was smelling kerosene oil along with Musalla upon which Mr. Bukhari was standing at the time of incident by keeping the same in a plastic katta which was sealed with the seal of JMI. Inspector Pradeep Kumar Paliwal prepared seizure memo of aforesaid articles Ex. PW1/D. The arrest memo Ex. PW1/E and personal search memo Ex. PW 1/F. He identified the lighter as Ex.P1, handkerchief as Ex. P2, plastic bottle as Ex. P3, mat of green and red colour as Ex. P4 and mat of white and brown colour as Ex. P5.
In crossexamination, in brief, he deposed that at the time of incident 600700 persons had come for offering Namaz. He was standing at a distance of about 910 feet from Mr. Bukhari. Ct. Aas Mohd. was standing besides him. He admitted that his specific position and position of Mr. Bukhari was not depicted in the site plan. The persons in front row were also at a distance of about 910 feet from Mr. Bukhari. He admitted that accused had reached near them when he saw him and apprehended him quickly.
It is observed that this witness has generally deposed the same facts as were stated by him in his statement Ex.PW1/B on the basis of which FIR was lodged. He described his position and position of Ct. Aas Mohd., position of Mr. Bukhari and the position of other Namazees at the time of incident, stating that he and Ct. Aas Mohd. were standing just behind Mr Bukhari. The other Namazees were standing on the mats behind them. In crossexamination he stated that there were about 600700 Namazees at the time of incident. But, it is significant that he has improved SC No. 28165/16, FIR No. 258/14, State v. Kamaluddin Mandal Page 11 of 19 the case of prosecution by stating that accused had tried to lit the lighter, though such fact was not stated by him in his statement Ex. PW1/B.
(ii) PW 5 Ct. Aas Mohd.:
PW 5 Ct. Aas Mohd. deposed the same facts as deposed by PW1 Ct. Mohd. Iqbal.
In crossexamination, in brief he deposed that at the time of incident about 500 persons had come to offer Namaz. He was standing at distance of about 5 feet from Mr. Bukhari and Ct. Mohd. Iqbal was standing beside him. The persons in front row were also at a distance of about 5 feet from Mr. Bukhari It is observed that this witness has deposed exactly the same facts in his examination of chief as were deposed by PW1. However, in cross examination he differed with PW1 on the point of number of persons present at the time of incident and on the point of distance of persons from Mr. Bukhari.
(iii) PW10 Dr. Lingraj Sahoo:
In brief, he deposed that he had examined the articles sent by the IO for scientific examination. He used gas chromatography analysis to examine those articles. The blue colour liquid in plastic bottle Ex.1A was found to be containing kerosene oil and white colour handkerchief Ex. 1B and Musalla 2A were found to contain residue of kerosene. Residue of SC No. 28165/16, FIR No. 258/14, State v. Kamaluddin Mandal Page 12 of 19 kerosene/diesel/petrol could not be detected in Dari Ex. 2B. He exhibited his report as Ex. PW10/A. It is observed this witness has proved the facts that on scientific examination of aforesaid articles, he found kerosene oil or residue of the same. But it is significant that he did not find residue of kerosene oil on Dari Ex.2 B which was lying just behind the Musalla.
(iv) PW2 Akhtar Hussain:
In brief, he deposed the same facts as deposed by PW1 Ct. Mohd. Iqbal and PW5 Ct. Aas Mohd. except the facts that he was standing behind Shahi Imam in the second row and he had apprehended the accused first and thereafter some security personals had also apprehended him. The accused was shouting something probably in Bengali but, he could not understand the same.
In crossexamination he deposed that about 200 persons had come at that time to offer Namaz. The Namaz was carried out after the incident. They don't close their eyes at the time of offering Namaz. He was standing at distance of about two steps from Mr. Bukhari. Accused came there from behind from his left side. He could not understand what the accused was shouting at the time of incident. He had apprehended the accused first. He had snatched the lighter from the hand of the accused.
It is observed that the deposition of this witness is in direct conflict with the deposition of PW1 Ct. Mohd. Iqbal and PW5 Ct. Aas SC No. 28165/16, FIR No. 258/14, State v. Kamaluddin Mandal Page 13 of 19 Mohd. on two most material aspects. Firstly, on the point as to who had apprehended the accused first. The PW2 Akhtar Hussain stated that he had apprehended the accused first but; PW1 Ct. Mohd. Iqbal and PW5 Ct. Aas Mohd. had stated that PW1 Ct. Mohd. Iqbal had apprehended the accused first and snatched the lighter from his left hand. Secondly; the PW 1 Ct. Mohd. Iqbal and PW5 Ct. Aas Mohd. have stated that accused was shouting in hindi that "MUJHE CHHOD DO, AAJ MEIN IS IMAM KO JALA KAR MARUNGA" but, PW2 Akhtar Hussain has stated that he was shouting something in Bengali. It is observed that accused had come from back side of PW 2 Akhtar Hussain, who was behind the PW1 Ct. Mohd. Iqbal and PW5 Ct. Aas Mohd. therefore, it is more probable that PW2 Akhtar Hussain noticed him first, apprehended him first and snatched the lighter from his hand. Therefore, the case of the prosecution is doubtful on the aforesaid two material aspects and it seems that material facts have not been proved by the prosecution by leading clear, cogent and clinching evidence.
(11) The depositions of PW12 Maulana Sayed Ahmed Bukhari and PW14 Ct. Mangla Ram do not support the case of the prosecution and hence, their deposition is not significant for the prosecution case. Their depositions have been discussed as under:
(i) PW12 Maulana Sayed Ahmed Bukhari:
PW12 Maulana Sayed Ahmed Bukhari deposed that on 26.10.2014, he was the Shahi Imam of Jama Masjid Delhi. On that day at SC No. 28165/16, FIR No. 258/14, State v. Kamaluddin Mandal Page 14 of 19 about 05.45 PM, while he was offering Namaz by standing on Mussala, in Jama Masjid facing towards West, he felt that someone had thrown some liquid on his back. He heard a commotion behind him, but as he was offering Namaz, he did not turn back to see as to what had happened. After completion of Namaz he had come to know that one person had thrown kerosene oil on him with intention to burn him, however, he was apprehended by his personal security officers and taken him away. He had not seen the accused on that day.
This witness was not cross examined by the Ld.counsel for the accused despite opportunity given to the accused.
It is observed the deposition of this witness is not significant for the prosecution as the witness had not seen the occurrence from his own eyes and he even did not see the accused on the day of incident.
(ii) PW14 Ct. Mangta Ram PW14 Ct. Mangta Ram deposed in his examination in chief that on 26.10.2014 he was in the security unit of Delhi Police and was posted as a PSO in uniform for Maulana S.A. Bukhari; Shahi Imam of Jama Masjid. On that day PW1 Ct. Mohd. Iqbal and PW5 Ct. Aas Mohd. had apprehended one person. He came to know that the said person had thrown the kerosene oil towards the Shahi Imam and was trying to burn him with a lighter. Smell of kerosene was coming from the spot. They had taken Shahi Imam to his home. He made a call at 100 number from his mobile regarding incident.
SC No. 28165/16, FIR No. 258/14, State v. Kamaluddin Mandal Page 15 of 19In crossexamination he admitted that he had not seen the accused throwing kerosene oil or trying to burn lighter.
It is observed that this witness is not an eyewitness as he himself has stated that he had not seen the occurrence and he only came to know about the incident later on. Therefore, deposition of this witness is not significant to prosecution case.
12. The charge framed against the accused is u/s 307 IPC; which is defined under the Indian Penal Code as under:
"S. 307 IPC: Attempt to murder.Whoever does any act with such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty of murder, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and if hurt is caused to any person by such act, the offender shall be liable either to [imprisonment for life], or to such punishment as is hereinbefore mentioned."
Therefore, the prosecution is under legal obligation to prove that accused committed any act with such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty of murder. As per case law titled as Om Prakash Vs State of Punjab, AIR, 1961 SC 1782; this simply means the act must be done with intention or knowledge requisite for commission of the offence of murder. "The word act' again does not mean only any particular, specific or instantaneous act of a person, but denotes as per section 33 of Code, as well, a series of acts."
SC No. 28165/16, FIR No. 258/14, State v. Kamaluddin Mandal Page 16 of 19Therefore, act must not be a penultimate act but it must be such act in the series of acts close enough to clearly exhibit the intention of the accused to bring the desired consequences covered within the definition provided u/s 307 IPC.
In the instant case, the material facts are that accused was having a lighter in his left pocket, which he had taken out from his left hand and he was having a plastic bottle of 250 ml containing kerosene oil, wrapped in handkerchief in his left dub, which he had taken out from his right hand and when he was being overpowered he had thrown said kerosene bottle towards Mr. M.S.A Bukhari. At that time, he was apprehended by PW2 Akhtar Hussain, PW1 Ct. Mohd. Iqbal and PW5 Ct. Aas Mohd. It is significant that throwing of kerosene bottle towards Mr. M.S.A Bukhari itself is not sufficient overt act for conviction of the accused u/s 307 IPC. The deposition of PW1 Ct. Mohd. Iqbal and PW5 Ct. Aas Mohd. cannot be believed on the point that accused had lighted the lighter since such facts were not mentioned by the PW1 Ct. Mohd. Iqbal in his statement exhibit PW1/B on which FIR was lodged. If it was a fact, it could not have been omitted by PW1 when he got recorded his aforesaid exhibited statement to the police. Moreso, when PW1 has specifically mentioned that accused had thrown the bottle containing kerosene oil towards Mr. M.S.A Bukhari. It cannot be believed that accused had shouted the words in Hindi "MUJHE CHHOD DO, AAJ MAIN IS IMAM KO JALA KAR MARUNGA", as discussed above that PW2 Akhtar Hussain has deposed that accused was speaking something in Bengali. The deposition SC No. 28165/16, FIR No. 258/14, State v. Kamaluddin Mandal Page 17 of 19 of PW2 is strengthened by the fact that the medical report of IHBAS hospital shows that accused is a Bengali speaking person. The accused had committed the aforesaid act at about 05.45 PM, at public place, in the presence of about 200 to 600 persons, when all of them were standing close to each other and therefore, it was almost certain that accused will not be able to bring desired consequences and will be apprehended. This shows that accused was not having a stable and balanced mind as he had not acted like a reasonable man. This inference is supported by the report of the medical board Ex. CW1/A exhibited at the time of inquiry u/s 328 (3) Cr.P.C. which shows that there existed some indirect evidences being moderate to high probability that on the day of alleged incident the patient might have been suffering from disorder namely paranoid schizophrenia. Therefore, it seems that accused was not of a balanced mind when the aforesaid overt act was done by him and hence, it seems that there is sufficient force in the submissions of Ld. Defence Counsel and the ingredients of the Penal provisions u/s 307 IPC for which, charge has been framed against the accused have not been proved beyond reasonable doubt.
13. In the end, it is manifested that Ld. Addl. PP for the state, has very ably conducted the case of prosecution but; his submissions are not supported by cogent, credible and reliable evidence and they could not militated against the certitude of guilt of the accused. Ld. Defence Counsel has raised the significant legal issues and they have enough legal force and are sustainable in law. Therefore, it is clear that the case of the prosecution has not been proved beyond reasonable doubts for offence u/s 307 IPC SC No. 28165/16, FIR No. 258/14, State v. Kamaluddin Mandal Page 18 of 19 against the accused. The scales of justice have heavily tilted in favour of the accused and against the State. The verdict in last must result in acquittal of accused Kamaluddin Mandal for the aforesaid offence. Hence, the accused is acquitted accordingly.
ANNOUNCED IN THE OPEN CHANDRA SHEKHAR
th
COURT ON 24 OCTOBER, 2017 ASJ02 (Central)/THC/Delhi
SC No. 28165/16, FIR No. 258/14, State v. Kamaluddin Mandal Page 19 of 19