Delhi District Court
Fir No. 259/2013 State vs Mohd. Yaseen & Ors Page No. Of 1 /21 on 29 April, 2023
IN THE COURT OF MR. VISHAL GOGNE:
ADDITIONAL SESSIONS JUDGE02
(EAST) KARKARDOOMA COURTS, DELHI
CNR No.DLET010026812014
S.C. No.1167/2016
FIR No.259/2013
U/s 323/308/34 IPC
PS Kalyan Puri
State
versus
1. Mohd. Yaseen
S/o Mohd. Khalil Ahmad
R/o House No. 46, 3rd Floor
Laxmi Nagar, Delhi
&
R/o Village Sambal,
Hindpura Khera, Deepa Sarai
District Moradabad, UP
2. Mohd. Wasim
S/o Mohd. Khalil Ahmad
R/o House No. 46, 3rd Floor
Laxmi Nagar, Delhi
&
R/o Village Sambal,
Hindpura Khera, Deepa Sarai
District Moradabad, UP
3. Mohd. Naseem
S/o Mohd. Khalil Ahmad
R/o 37, J & K Block
Laxmi Nagar, Delhi
&
R/o Village Sambal,
Hindpura Khera, Deepa Sarai
District Moradabad, UP
FIR No. 259/2013 State Vs.Mohd. Yaseen & Ors Page No. of 1 /21
4. Mohd. Shamim
S/o Sh. Mohd. Haleen
R/o R165, Super Shine Chowk
East Vinod Nagar, Delhi ...Accused
Date of Institution : 12.03.2015
Reserved for Judgment on : 31.03.2023
Judgment pronounced on : 29.04.2023
JUDGMENT
Charge
1. The five accused persons have been tried on two separate articles of charge framed jointly against them. The first article of charge related to section 308 read with section 34 IPC for alleged assault by them upon victim Mohd. Usman. An independent charge under section 308 IPC was additionally framed against accused Mohd. Yaseen. All accused persons were also charged with section 323 read with section 34 IPC for having caused injuries upon the father of Mohd. Usman namely Hazi Jariff.
2. The above noted articles of charge against the accused persons are reproduced below:
Charge against all accused persons under section 308 read with section 34 IPC and section 323 read with section 34 IPC That on 20.04.2013 at about 12 noon at Super Shine Chowk, East Vinod Nagar, Delhi, you all in furtherance of your common intention caused grievous injury with a Ham mer on the head of Md. Usman with such intention or knowledge and under such circumstances that if by that act, Md. Usman had died, then you all would have been guilty of culpable homicide not amounting to murder and thus you FIR No. 259/2013 State Vs.Mohd. Yaseen & Ors Page No. of 2 /21 all thereby committed an offence punishable u/s. 308/34 IPC within the jurisdiction of PS. Kalyan Puri.
Secondly, on the aforesaid date, time and place you all in furtherance of your common intention voluntarily caused simple injury to Hazi Zareef and thus you all thereby committed an offence punishable u/s. 323/34 IPC within the jurisdiction of PS. Kalyan Puri.
And I hereby direct that you be tried by me for the aforesaid charge.
ASJ02(E)/Spl. Judge (NDPS) KKD Courts/Delhi/20.01.2016 Charge against accused Mohd Yaseen under section 308 IPC That on 20.04.2013, at about 12.00 noon, at Super Shine Chowk, East Vinod Nagar, Delhi, within the jurisdiction of PS Kalyan Puri you caused grievous injury with a hammer on the head of Md. Usman with such intention or knowledge and under such circumstances that if by that act, Md. Usman had dies, you would have been guilty of culpable homicide not amounting to murder and you thereby committed an offence punishable u/s 308 IPC within the cognizance of this Court.
And I hereby direct that you be tried by this Court for the aforesaid offence.
ASJ-02/KKD/East/29.03.2023
3. The accused persons pleaded not guilty to the respective article of charge.
4. Accused Khalil Ahmad expired during the course of trial and proceedings stand abated qua him.
Allegations
5. The FIR in the present matter was registered on 20.04.2013 upon the complaint given by Hazi Jariff (spelt as Hazi Zarif in his deposition as PW2) on the same day wherein he alleged that his son Usman, who was having a running discord FIR No. 259/2013 State Vs.Mohd. Yaseen & Ors Page No. of 3 /21 with his parents in law (residents of Laxmi Nagar, Delhi), had been beaten up by certain persons. The complainant stated in his complaint (Ex. PW2/A) that a meeting was underway between the brothers in law of Usman namely Mohd. Wasim, Mohd. Yaseen and Lala (Mohd. Naseem) as well as his father in law i.e. Mohd. Khalil @ Babbu at the shop of Shamim Rui Wala at Super Shine Chowk on 20.04.2013. As Mohd. Usman also came there for some work at about 12:00 pm, accused Shamim, Lala and Khalil @ Babbu allegedly caught hold of him. While accused Mohd. Yaseen hit him on the head with a hammer, accused Wasim started beating him with a danda.
6. The complainant maintained that since he himself was passing through the Super Shine Chowk, he saw his son being beaten and tried to intervene. The assailants then pushed him away and attempted to escape. The passersby managed to catch Wasim and Yaseen whereas Mohd. Khalil, Shamim and Lala managed to escape.
7. The complainant then took his son Mohd Usman to LBS hospital whereas the PCR van took the two accused to the police station. The complainant subsequently took his son to GTB hospital as he had been referred to the said hospital by LBS Hospital. He then went to the police station in the evening and made his statement. The complainant also identified Mohd. Wasim and Mohd. Yaseen, who were present at the police station, as the assailants who had injured his son.
8. During the course of investigation, accused Mohd. Yaseen got recovered the iron hammer used in the assault from the FIR No. 259/2013 State Vs.Mohd. Yaseen & Ors Page No. of 4 /21 garbage dump at R Block, East Vinod Nagar. Later, accused Mohd. Khalil, Mohd Naseem and Shamim were also arrested in the present matter.
9. As the doctors had opined the injury on the head of Mohd. Usman to be grievous and the injury upon Hazi Jariff to be simple in nature, the chargesheet was filed under sections 323/308/34 IPC.
Description of the evidence on behalf of the prosecution
10. The prosecution examined 18 witnesses in support of the charge.
11. The eye witnesses to the incident were the complainant (PW2) and his son namely Mohd. Usman (PW8).
12. PW 2 reiterated the contents of his complaint which he proved as Ex. PW2/A while PW8 corroborated his father in describing the manner of incident and the identity as well as respective role of the five assailants. Their deposition shall be discussed in greater detail in the later part of the judgment.
13. The medical witnesses included:
(i) The doctors from LBS hospital viz PW1 (Dr. Parmesh Sharma), PW3 (Dr. Vishal Gupta), PW5 (Dr. P K Dalmia), PW11 (Dr. Abhishek) and PW16 (Dr. Rohan Gupta).
(ii) A medical record clerk from LBS hospital viz PW14 (Masrur Hussain).
(iii) A doctor from Safdarjung hospital viz PW15 (Dr. Sachin Kumar).
(iv) A doctor from Max Super Specialty Hospital, Patparganj, Delhi viz PW17 (Dr. Nidhi Saxena).
(v) The Medical Record Clerk from Lal Bahadur Shastri FIR No. 259/2013 State Vs.Mohd. Yaseen & Ors Page No. of 5 /21 Hospital deposed as PW14 when he brought the record relating to the MLC of injured Mohd. Usman and the progress notes prepared by Dr. Parmesh Sharma.
(vi) A Medical Record Technician from Max Super Specialty Hospital Patparganj, Delhi viz PW18 (Jatin Kumar Sulani).
14. Dr. Parmesh Sharma deposed as PW1 to state that MLC No. 5645/13 dated 20.04.2013 of Mohd. Usman S/o Hazi Zarif had been prepared by him. He proved the same as Ex. PW1/A and stated that he had referred the patient to SR Surgery for management and opinion.
15. Since PW8 had been referred first from LBS Hospital to GTB hospital and then from GTB hospital to Safdarjung Hospital, his xray came to be conducted at the last hospital. The doctor who examined PW2 at Safdarjung Hospital was Dr. Sachin Kumar (SR Safdarjung Hospital) who deposed as PW15. He stated that he had examined patient Mohd. Usman on 20.04.2013 after he was referred from GTB hospital as a case of physical assault. He deposed that that on taking an xray of patient Mohd. Usman (PW8), a fracture of lateral wall of orbit (eye) of left side and zygomatic bone (cheek bone) of left side had been observed. He identified the copy of the emergency card as Mark A and the OP card as Mark B. The CT scan copy was identified as Mark C.
16. Dr. Rohan Gupta (PW16), the SR Surgery at LBS Hospital who had examined the xray and other reports related to PW2, deposed that on 30.04.2013, after seeing the xray and NCCT Head of Mohd. Usman, he had given opinion that the patient was having grievous injuries. He identified his opinion FIR No. 259/2013 State Vs.Mohd. Yaseen & Ors Page No. of 6 /21 on the MLC already Ex. PW1/A prepared by him and identified his opinion on the same.
17. Dr. Abhishek (PW11), SR Surgery had earlier proved the signatures of Dr. Rohan Gupta on the MLC Ex. PW1/A (wrongly mentioned as Ex. PW4/A on the said MLC).
18. The injuries upon PW2 (Hazi Jariff S/o Jaleel Ahmad), mentioned as Zaraf Ahmad, S/o of Jaleel Ahmad in the MLC No. 5647/2013 at LBS Hospital were proved by PW1 (Dr. Parmesh Sharma). Having worked with Dr. Rohit who had prepared the said MLC, PW1 identified the signature of the said doctor and proved the MLC as Ex. PW1/B. The MLC records simple injuries.
19. Two medical witnesses were examined from Max Super Specialty Hospital, Parparganj Hospital. These were PW17 and PW18.
20. PW17 (Dr. Nidhi Saxena) deposed that Mohd. Usman had been treated at the said hospital between 21.04.2013 and 22.04.2013. She proved her reply to the request letter from the IO regarding the treatment papers of Mohd. Usman as Ex. PW17/A. She deposed that as the MLC had been prepared at the said hospital, all MLC, xray film and other records had been handed over to the patient's attendant.
21. PW18 was the Medical Record Technician from Max Hospital who deposed that Mohd. Usman had been treated in the emergency section of the hospital from 21.04.2013 to 22.04.2013. He proved the treatment papers as Ex. PW18/A. PW18 further stated that Dr. Vikas Kumar Gupta who had worked in the hospital had left the services in 2018. A letter in FIR No. 259/2013 State Vs.Mohd. Yaseen & Ors Page No. of 7 /21 this regard was proved as Ex. PW18/B.
22. The deposition of the police witnesses may next be described.
23. The police witnesses can be divided into two categories. The first group comprised police officials who handled the information at the PCR and the police station or dealt with the deposit of the case properties. These were PW4, PW6, PW12 and PW7.
24. The second group of police witnesses had participated in the investigation. These witnesses were PW10, PW9 and PW
13.
25. PW4 (ASI Yatvir) was the Duty Officer who proved the original FIR as Ex. PW4/A, DD No. 18A and 21B as Ex. PW4/B and PW4/C respectively. He deposed that SI Harun Khan had handed over a rukka to him on 20.04.2013 at 5:05 pm upon which he recorded the present FIR No. 259/13 under sections 323/308/34 IPC.
26. The wireless operator (HC Anil Kumar) at CPCR who received the call regarding a 'serious quarrel' at Super Shine Chowk, East Vinod Nagar, New Delhi on 20.04.2013 deposed as PW6 to state that he had received the call at about 12:36 hours. He then informed the PCR vans bearing description Romeo 58 and Romeo 77. The PCR van informed him that there had been a quarrel between brother in law (sala) and behnoi. PW6 further proved the PCR form as Ex. PW6/A by identifying the signatures of the ACP CPCR. He also deposed that the ACP had signed the PCR form in his presence. PW6 next proved the certificate under section 65 B Indian Evidence Act as Ex. PW6/B which had FIR No. 259/2013 State Vs.Mohd. Yaseen & Ors Page No. of 8 /21 been issued by SI Harish Chander Pathak and whose signatures were stated to be familiar for PW6.
27. PW12 (Constable Sushila) deposed that while being posted at CPCR C Shift on 20.04.2013, she had received a call from the PCR regarding a 'serious quarrel' at Super Shine Chowk, East Vinod Nagar and had dispatched the same to the concerned district. She also tendered the attested copy of the PCR form as Ex. PW12/A.
28. PW7 was the MHCM at PS Kalyanpuri who deposed that on 20.04.2013 SI Harun Khan had come to the malkhana and handed over one sealed pullanda bearing the seal of SK which was deposited by him in the malkhana. He proved the entry in register No. 19 relating to the said deposit as Ex. PW7/A.
29. He also deposed that on 28.04.2013, SI Harun Khan had again handed over two sealed pullandas with the seal of 'HK' on one and the other with the seal of the description 'LBS hospital KP' which were also deposited by him at the malkhana. The entry in register No. 19 qua these deposits was proved by PW7 as Ex. PW7/B.
30. PW7 next proved the handing over of three sealed parcels, alongwith a sample seal, by him to constable Mahender on 10.05.2013 for being deposited at FSL Rohini. The copy of the road certificate no. 188/21/13 was proved by him as Ex. PW7/C. The copy of the receipt was Ex. PW7/D.
31. The prosecution examined three police witnesses relating to the investigation. These were PW10, PW9 and PW13.
32. The first IO (SI Harun Khan) deposed as PW10 whereas the police official (HC Pankaj) who remained with him during FIR No. 259/2013 State Vs.Mohd. Yaseen & Ors Page No. of 9 /21 the relevant steps of investigation deposed as PW9.
33. The second IO namely SI Arun Ahlawat, who filed the chargesheet, deposed as PW13.
34. PW9 deposed that he had remained in the investigation of the present case alongwith SI Harun Khan and that accused Wasim and Mohd. Yaseen had been arrested by the IO. He identified his signatures on the arrest memos, personal search memos and purported disclosure statements of these two accused (Ex. PW2/B, Ex. PW2/C, Ex.PW9/A, Ex. PW9/B, Ex. PW9/C and Ex. PW9/D respectively).
35. He further deposed that accused Yaseen had led the police team and got recovered one hammer from the kuda ghar situated at R Block, East Vinod Nagar. The hammer was described as having a wooden handle and iron hammer while its length was stated to be two feet and two inch. PW9 also deposed that the hammer had blood on it. This hammer was kept in a cloth, a parcel was prepared and sealed with the seal of 'HK'. The witness also identified his signatures on the seizure memo Ex. PW9/E.
36. During his deposition, PW9 identified the said hammer as Ex. P1.
37. The IO i.e. PW10 deposed that on 20.04.2013, upon receipt of DD No. 18A and 20A regarding a quarrel, he had gone to Super Shine Chowk, East Vinod Nagar where he learnt that the injured had been taken to LBS hospital whereas the accused had been taken to the police station by the PCR van. PW10 then went to LBS hospital and met Mohd. Usman as well as Hazi. Jariff. While Mohd. Usman was referred to GTB hospital and FIR No. 259/2013 State Vs.Mohd. Yaseen & Ors Page No. of 10 /21 PW10 also went to the said hospital, the former was not in a position to make a statement. Since Hazi Jariff was also attending to Mohd. Usman, he too did not make a statement.
38. As PW10 returned to the police station, Hazi Jariff came there and made a statement. PW10 proved his endorsement on the statement (Ex. PW2/A) as Ex. PW10/A and deposed that he had prepared the rukka for recording of the FIR. Much like PW 9, PW10 also proved the arrest memos, personal search memos and purported disclosure statements of these two accused (Ex. PW2/B, Ex. PW2/C, Ex.PW9/A, Ex. PW9/B, Ex. PW9/C and Ex. PW9/D respectively). He also corroborated PW9 in deposing that accused Yaseen had got recovered a hammer from the kuda ghar, R Block, East Vinod Nagar and proved the seizure memo of the same as Ex. PW9/E. PW10 further proved the site plan prepared on the pointing out of complainant Hazi Jariff as Ex. PW10/B. He also proved the seizure memo of the blood stained clothes produced by Mohd. Usman on 28.04.2013 as Ex. PW8/A. The seizure memo of the blood sample taken from Mohd. Usman at LBS hospital on 28.04.2013 was proved as Ex. PW8/B.
39. PW10 identified the hammer in question as Ex. P1 and the clothes produced by Mohd. Usman viz tshirt, vest and cloth piece (lungi) as Ex. P2, P3 and P4 respectively.
40. PW13, who was the second IO in the case, deposed that accused Khalil Ahmad, Shamim and Naseem, being on anticipatory bail, had been formally arrested by him at PS Kalyan Puri. He proved their arrest memos as Ex. PW13/A to Ex. PW13/C and their bail bonds as Ex. PW13/D to Ex. PW13/F. He lastly deposed that he had filed the chargesheet in the present FIR No. 259/2013 State Vs.Mohd. Yaseen & Ors Page No. of 11 /21 matter.
41. The incriminating evidence was projected to all accused persons under section 313 Cr.PC which was explained as being false by each of the accused.
Defence Evidence
42. Two witnesses were examined in defence i.e. Mohd. Sahid and Rahis (DW1 and DW2 respectively). While DW1 deposed that he was familiar with accused Shamim (being his neighbour) and had seen two persons manhandling Usman on the date and place of incident, he did not identify any of the assailants.
43. DW2 further deposed that two brothers in law of Usman were manhandling him whereas accused Shamim was trying to save Usman, during which process Usman fell on the road and possibly sustained injuries on his head with a stone lying on the road. DW2 also maintained that he was a neighbour of accused Shamim.
Submissions on behalf of the State
44. The Ld. Prosecutor relied largely on the deposition of the victims (PW2 and PW8) to submit that both witnesses had identified all accused persons as the assailants involved in the incident. It was submitted that the joint beatings inflicted firstly upon PW8 and then upon PW2 revealed a common intention to harm the victims. The prosecutor contended that the grievous head injury upon PW8 was liable to be seen as an act in furtherance of the common intention of all accused persons to cause the death of PW8.
45. The respective MLC documents of the two injured persons FIR No. 259/2013 State Vs.Mohd. Yaseen & Ors Page No. of 12 /21 were additionally cited as being corroborative of grievous injury upon PW8 and simple injury upon PW2.
46. It was thus the submission of the State that the accused persons were liable to be convicted under section 308 IPC with the aid of section 34 IPC qua the assault on PW8. The prosecutor additionally sought conviction under section 323 read with section 34 IPC in terms of the charge relating to injuries upon PW2.
Submissions on behalf of the accused
47. In defence, the ld counsel for the respective accused persons portrayed the allegations to have emanated from the history of strained relations between PW8 and his wife. The counsels had pointed to the cross examination of PW2 and PW 8 where these witnesses had acknowledged matrimonial discord between PW8 and his wife. It was thus argued that these witnesses had falsely implicated the three brothers in law of PW 8 namely Mohd. Yaseen, Mohd. Wasim and Mohd. Naseem as well as the father in law of PW8 i.e Khalil Ahmad in the present incident.
48. It was additionally urged that the recovery of the purported weapon of offence used by accused Mohd. Yaseen viz the hammer from a garbage dump could not be considered a credible seizure as the said place was an easily accessible public utility with the accused having no special knowledge of its location.
49. The ld. Counsels for the accused had additionally submitted that but for the allegation of the use of a hammer by accused Mohd. Yaseen, none of the other accused persons had acted with a deadly weapon or intent.
FIR No. 259/2013 State Vs.Mohd. Yaseen & Ors Page No. of 13 /21 Discussion of the evidence
50. The Court has considered the submissions in light of the evidence in record.
51. The deposition of the police witnesses who were a part of the investigation is only ancillary to the eye witness description given by the victims. The outcome of the trial essentially hinges upon the eye witness account of the injured i.e. Mohd. Usman (PW8) and his father i.e. complainant Hazi Jariff (PW2).
52. The statement given by the complainant (PW2) is taken up first.
53. PW2 proved his original complaint to the police as Ex. PW2/A and deposed largely in consonance with the same. He described the incident dated 20.04.2013 in detail to assert that all accused persons had indeed beaten up his son and also beaten him when he tried to intervene. PW2 specified that on 20.04.2013, at about 12:00 noon, as he was going through Super Shine Chowk, Vinod Nagar, he noticed a quarrel where five persons were beating one victim. He described three assailants namely Babu (deceased accused Khalil Ahmad), Shamim and Lala (Mohd Naseem) as having caught his son namely Mohd. Usman. PW2 further deposed that while Mohd. Wasim had a danda (stick) in his hand, accused Mohd Yaseen was trying to attack his son with a hammer. Even as PW2 tried to intervene for saving his son, accused Mohd. Yaseen hit Mohd Usman on the head with the hammer.
54. PW2 also described the accused persons as having pushed him. He stated that he thus fell to the ground and received injuries on his left leg as well as other parts of his body. FIR No. 259/2013 State Vs.Mohd. Yaseen & Ors Page No. of 14 /21
55. PW2 concluded the narration of the sequence of events stating that as public persons gathered and raised an alarm, three accused persons namely Babu @ Khalil, Naseem @ Lala and Shamim escaped from the spot while Mohd. Yaseen and Mohd. Wasim were apprehended at the spot by the public persons. The motive for the attack was given by PW2 as the accused having some matrimonial dispute with his son Mohd. Usman.
56. The Court finds the statement of PW2 to be credible and not suffering from any material infirmity. PW2 described the location and manner of the incident in cogent detail and also identified each of the assailants by name. Since four of the accused persons are the relations in law of his son, there is evidently no room for misidentification. PW8 presumably knew the accused persons.
57. PW8 also specified the role played by each accused in assaulting PW8 as well as PW2 himself. It emerges as a believable proposition that PW2 saw the accused persons beating his son, including the hammer blow by accused Mohd. Yaseen upon PW8.
58. The objections raised by the Ld. Counsels for the accused to his deposition on the ground that he had admitted a previous matrimonial dispute between PW8 and his relations in law is not an indication of the allegations themselves being contrived. Since the injuries upon PW8 are commensurate with the assault described by PW8, the theory of false implication owing to previous matrimonial discord does not inspire any confidence with the Court.
59. Also, the fact that PW2 admitted to three of the accused FIR No. 259/2013 State Vs.Mohd. Yaseen & Ors Page No. of 15 /21 persons i.e. Mohd. Naseem, Khalil Ahmad and Mohd. Shamim not having any weapon with them, does not mitigate their role in assaulting PW8.
60. In sum, PW2 proved an incident of assault upon PW8 and himself by all five accused persons (including accused Khalil Ahmad who has since expired).
61. The next eye witness was the injured himself i.e. Mohd. Usman (PW8). His statement was in confirmity with the allegations made by his father. He deposed that on 20.04.2013 at about 12:00 noon, he saw five people sitting at the cotton shop at Super Shine Chowk, East Vinod Nagar. The name of the shop owner was given by him as Shamim. PW8 explained that after three of the accused namely Mohd. Naseem, Mohd. Wasim and Mohd. Yaseen started rebuking him, he protested and the accused then dragged him to the shop of Shamim Rui Wala. Two other accused namely Mohd. Khalil and Mohd. Shamim were described as having joined the other three accused in beating him with fist and leg blows.
62. PW8 also described the manner in which he received the injury on his head by deposing that while Mohd. Wasim was beating him with a danda, accused Mohd. Yaseen lifted a hammer from the spot and hit him on the head with the same. Further, as his father (PW2) came to the spot and attempted to rescue him, all accused persons beat him up too and pushed him to the ground causing injuries to his left leg.
63. PW8 next stated that he had received serious head injuries and that the wound from his head was bleeding. He further stated that accused Mohd. Wasim and Mohd. Yaseen were FIR No. 259/2013 State Vs.Mohd. Yaseen & Ors Page No. of 16 /21 caught by the public persons at the spot itself.
64. It is apparent from the statement of PW8 that much like PW2, he ascribed a common role to all accused persons in beating him up with fist and leg blows. He differentiated the role of accused Mohd. Yaseen in having picking up a hammer from the spot and having hit him on the head with the same.
65. Again, the cross examination of PW8 failed to elicit any lacunae in his version. He too admitted that he was living separately with his wife and had strained relations with her. Also, that there were matrimonial cases with them. This circumstance does not detract from his account of the incident.
66. Besides, the medical evidence supports the description of the injury upon PW8. The MLC (Ex. PW1/A) of PW8 reveals a lacerated wound, measuring 8 x 0.5 cm, on the fronto parietal region of the head. The opinion from the doctors (PW8 and PW15) confirmed the said injury as comprising a fracture on the left side of the head and cheek bone. The injury was opined as grievous.
67. Such an injury is wholly commensurate with the described manner of assault by accused Mohd. Yaseen inter alia a hammer blow on the head. The occurrence of a grievous injury using a blunt weapon upon a vital part of the body viz the head cannot be explained away as a case of false implication on the basis of previous discord between the parties.
68. Since the injuries mentioned in the MLC of PW8 are commensurate with the weapon in question inter alia a hammer, the Court does not find it to be an adverse circumstance that the recovery of the said hammer was effected, at the instance of FIR No. 259/2013 State Vs.Mohd. Yaseen & Ors Page No. of 17 /21 accused Mohd. Yaseen, from a garbage dump as deposed by PW 9 and PW10. The seizure memo Ex. PW9/E is a credible document and the identification in evidence of the said hammer as Ex. P1 by PW9 and PW10 is believed by the Court.
69. The injuries upon PW2 also find depiction in his MLC Ex. PW1/B which records simple injuries on the left foot and pain in the right shoulder. Such injuries are in consonance with a person having been beaten and then having fallen down upon being pushed.
70. The Court concludes on reasonable standards of an appraisal of evidence that combined with the deposition of PW2, the account given by PW8 convincingly establishes the four accused facing trial namely Mohd. Yaseen, Mohd. Wasim, Mohd. Naseem and Mohd. Shamim (alongwith deceased accused Mohd. Khalil Ahmad) as having together assaulted PW8 and PW2 with fist and leg blows, including a hammer inflicted injury upon PW8 by accused Mohd. Yaseen on 20.04.2013.
71. The material issue for determination now is the penal provisions under which a finding of guilty is to be rendered against the accused persons.
Charge against all accused under sections 308 and 323 read with section 34 IPC
72. The first aspect is the applicability or otherwise of section 34 IPC which has been used to frame a charge against all accused under section 308 IPC (for injury upon PW8) and under section 323 IPC (for injury upon PW2).
73. Here, the statements of PW2 and PW8 similarly revealed that while all accused were beating PW8, accused Mohd. FIR No. 259/2013 State Vs.Mohd. Yaseen & Ors Page No. of 18 /21 Yaseen picked up a hammer from the spot and hit PW8 on the head. Since the place of occurrence was a shop i.e. the shop of accused Mohd. Shamim, the hammer was evidently sourced spontaneously in the course of a fight. There is no indication that all accused persons had agreed to bring such a hammer to the place of occurrence. The hammer seems to have been available at the shop. While the five assailants having together beaten PW 8 and PW2 is indeed suggestive of a common intention to cause injury upon them, the use of fist and leg blows does not constitute an intention to commit culpable homicide not amounting to murder (within the meaning of section 308 IPC). The limited commonality of intention which can be inferred from the collective beatings inflicted by the accused persons is the intention to inflict injuries commensurate with such beatings. The act of Mohd. Yaseen in picking up the hammer was an opportunistic and sudden improvisation for which there does not appear to have been a meeting of minds between him and the other accused persons. The hammer was not hidden at the spot in advance and none of the other accused exhorted Mohd. Yaseen to use the hammer. Hence, the infliction of a head injury cannot be considered an act in furtherance of the common intention of the five assailants. While accused Mohd. Yaseen may have acted in an aggravated manner with an individual intention to cause a grievous injury by using the hammer, the intention common to all assailants was limited to thrashing the victim without any apparent desire to cause his death. In other words, the common intention of the five assailants was to inflict injuries upon PW8 and also upon PW2 when the later intervened. FIR No. 259/2013 State Vs.Mohd. Yaseen & Ors Page No. of 19 /21
74. All accused are thus liable for conviction under section 323 read with section 34 IPC for the simple injuries caused by them upon PW8 and PW2.
75. It is Mohd. Yaseen alone who is consequently under the scanner with respect to the separate charge under section 308 IPC.
Charge against accused Mohd. Yaseen under section 308 IPC
76. The difference between sections 299 and 300 IPC, corresponding to sections 304 and 302 IPC as well as the relatable attempts to commit these offences, punishable under sections 308 and 307 IPC, is essentially in the degree of intention and knowledge with which these acts are committed. An act of culpable homicide may amount to murder if it falls within any of the definitional clauses of section 300 IPC. The benefit of an exception to section 300 would also render an accused liable for punishment under section 304 instead of section 302 IPC. Similarly, an attempt to commit homicide would fall under section 308 and not section 307 IPC if, in the determination of the court, the act would qualify as culpable homicide not amounting to murder had death been caused in consequence of such an act. Thus, the intention or knowledge harboured by an accused while committing the overt act which constitutes the offence is material to the allegations under section 308 or 307 IPC.
77. Seen in the above understanding, it is first highlighted that the FIR itself was registered under section 308 IPC (and section 323 IPC) read with section 34 IPC. It was apparently not the estimation of the police that the offence disclosed was section FIR No. 259/2013 State Vs.Mohd. Yaseen & Ors Page No. of 20 /21 307 IPC. Charge was also framed against the accused under section 308 IPC. The act of accused Mohd Yaseen in inflicting a head injury with a hammer upon PW8 is therefore to be seen, more justifiably, as constituting the ingredients of section 308 IPC. The accused acted suddenly to aggravate the assault by using a hammer. Though he desisted from inflicting more than one blow and was consequently charged with section 308 and not section 307 IPC, the single hammer blow, being aimed on a vital part of the body viz the head of PW8, was homicidal in nature. Death may have been a probable outcome of such an act even if the same would not have constituted 'murder' within the meaning of section 300 IPC. Since the victim survived the assault, the necessary corollary is that the act of Mohd. Yaseen amounts to an attempt to commit culpable homicide not amounting to murder.
78. Accused Mohd Yaseen is liable to be convicted under section 308 IPC.
Order
79. Accused Mohd. Yaseen, Mohd. Wasim, Mohd. Naseem and Mohd. Shamim are convicted under section 323 IPC read with section 34 IPC.
80. Accused Mohd. Yaseen is convicted under section 308 IPC.
Dictated and announced in open Court (VISHAL GOGNE) on 29.04.2023 ASJ02/KKD/East/Delhi FIR No. 259/2013 State Vs.Mohd. Yaseen & Ors Page No. of 21 /21