Delhi District Court
State vs Shorab Khan & Ors//Fir No.133/08. on 23 February, 2013
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IN THE COURT OF SH. SANJEEV KUMAR
ADDL. SESSIONS JUDGEI(OUTER): ROHINI COURTS: DELHI
SC No.141/09.
FIR NO. 133/09.
PSNARELA.
U/S.308/34 IPC.
STATE VS
1. SHORAB KHAN S/O. KARAMAT ALI
2. KARAMAT ALI S/O. ABDLU RAJJAK
3. ANGOORI BEGUM W/O. KARAMAT ALI
4. KAWAR JAHAN W/O. BHORAV KHAN
ALL R/O. H.NO.290, PARK, SECTOR13, A6, NARELA,
DELHI.
Date of Institution in this Court :21.12.2009
Date of Arguments:29.01.2013
Date of Judgment :23.02.2013
JUDGMENT:
1. Brief facts of the prosecution are that on 10.03.2009 DD No.32A regarding a quarrel had taken place with a lady was received STATE VS SHORAB KHAN & ORS//FIR NO.133/08.
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by HC Dilbagh then, he alongwith Ct. Dinesh reached at the spot i.e. Park 07, SectorA10, Narela, Delhi and they came to know that the injured had already been removed to SRHC Hospital by the PCR. Thereafter, he had reached at SRHC Hospital and MLC of Smt. Shamima W/o. Maksood Ahmad obtained in which doctor had mentioned that, patient is fit for statement and also stated that patient had been assaulted and deep remitrating wound at forehead region. Thereafter he recorded the statement of said injured, in her statement, she had stated that, "She alongwith her family was residing at H.No.394, Pkct13, SectorA06, Narela, Delhi and she has been running a Dhaba at village Singhola, G.T. Road and for the last one year she has been residing at the said Dhaba for 24 hours. She further stated that she had further stated that about a year ago she had given some money to Shorab and on 10.03.2009 she had gone to the office of Shorab for demanding the said money, where Muslim was sitting and he said to sit me and he will call the Sohrab. After some time, Karamat Ali father of the Shorab Khan and his mother Angoori and his wife Kawar Jahan and Shorab Khna came in the office. Shorab and his wife were having danda in their hand and they started beating her. Karamat slapped her, Angoori had also STATE VS SHORAB KHAN & ORS//FIR NO.133/08.
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started beating her by picking up her hairs and Shorab Khan had given danda blow on her forehead and Kawar Jahan had given danda blow on her head and due to which she became unconscious". On the basis of said statement, FIR of present was registered. Further investigation was assigned to SI Dinesh Dahiya, who prepared the site plan, recorded statement of PWs, arrested all the accused persons, obtained opinion on the MLC of the injured and after completion of investigation chargesheet u/s. 308/34 IPC against all the accused persons have been filed and accused persons were put to trial.
2. After compliance of the provisions of Section 207 Code of Criminal Procedure, Ld. MM committed the case to the Court of Sessions. Thereafter, it was assigned to this court.
3. Vide order dated 21.10.2009, charge under Section 308/34 IPC were framed against all the accused persons, to which they pleaded not guilty and claimed trial.
4. In order to prove its case, the prosecution examined as many as Seven (7) witnesses.
5. PW1 Smt. Shamima Begum, PW2 HC Satyavir Singh, PW3 Dr. Lokesh Gaur, PW4 HC Snehlata, PW5 SI Dinesh, PW6 Dr. STATE VS SHORAB KHAN & ORS//FIR NO.133/08.
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Avdhesh Kumar Bhagat, PW7 HC Dilbagh Singh (Retd.).
6. Besides this prosecution had proved following documents: Copy of Register No.19 as Ex.PW2/C, copy of FIR as Ex.PW2/A, rukka as Ex.PW1/A, Endorsement on the rukka as Ex.PW7/A, rough site plan as Ex.PW5/A, DD No.32A as Ex.PW2/B, MLC of complainant Shamima as Ex.PW6/A and Ex.PW3/A, seizure memo of danda from Sohrab Khan as Ex.PW5/D, disclosure statement of accused Kawar Jahan as Ex.PW1/F, Disclosure statement of accused Angoori Begum as Ex.PW1/G, Disclosure statement of accused Sohrab Khan as Ex.PW5/C, Pointing out memo made by accused Kawar Jahan as Ex.PW3/A, pointing out memo by accused Shorab Khan as Ex.PW5/E, personal search memo of accused persons Kamar Jahan & Anguri Begum are Ex.PW1/C & Ex.PW1/E, Arrest memos of accused persons Kamar Jahan, Anguri Begum, Karamat Ali and Shorab Khan are Ex.PW1/B, Ex.PW1/D, Ex.PW5/E and Ex.PW5/B respectively.
7. Thereafter statement of accused persons u/s. 313 Cr.P.C. recorded, to which accused persons pleaded their innocence and do not want to lead any evidence in their defence.
8. I have heard arguments on behalf of Shri Anil Kumar STATE VS SHORAB KHAN & ORS//FIR NO.133/08.
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Gupta, ld. Addl. PP for the State and also from Shri Sunil Chaudhary and Shri R.D. Dubey, ld. Counsels for all the accused persons and also gone through the record very carefully.
9. The prime witness of the prosecution case is PW1 Smt. Shamima Begum, who is the complainant as well as injured. She th had deposed that on 10 March, but she does not remember the year, but it was three years ago at 8pm, she was going to take milk from her Dhabain rickshaw to Pocket No.13, Narela, Delhi, where she met Md. Alam, who was working in her Dhaba to bring milk. She told him that, 'Shorab had called her for giving money in the sum of Rs.3.50 lakhs, which Shorab had borrowed from her. Thereafter, she went to the office of Shorab Khan and Muslim, where Muslim met her and asked why she had come there. She told that, Shorab had called her to return the money. Muslim had asked her to wait and thereafter he went away and after sometime, Karamat Ali, Shorab Khan, Anguri and Kamar Jahan came there. Karamat slapped her and thereafter all the accused persons gave her fist and leg blows. Accused Karamat Ali and Shorab Khan had given danda blow on her head. They also told her that they will not give money to her and thereafter, she became unconscious and regained consciousness at STATE VS SHORAB KHAN & ORS//FIR NO.133/08.
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SRHC Hospital. Police recorded her statement Ex.PW1/A after 34 days. She further stated in her presence accused Kamar Jahan was arrested vide memo Ex.PW1/B and Angoori was arrested vide memo Ex.PW1/D and both accused persons have made their confessional statement Ex.PW1/F and Ex.PW1/G respectively. She was cross examined by ld. Addl. PP for the State with the permission of the Court and in her cross examination, she admitted that the incident was of 10.03.2008. She had admitted her statement was recorded on 10.03.2008 and second statement was recorded after 34 days on 14.03.2008 after the arrest of accused persons Kamar Jahan and Angoori. She had also stated that due to confusion she had stated that her statement Ex.PW1/A was recorded after 34 days at PS, actually it was recorded on 10.03.2008 at the hospital by the police. She identified all the accused persons correctly and also identified the case property i.e. Danda, which was used by accused Shorab Khan to give blow on her head.
In her cross examination by ld. Defence counsel, she admitted that no documents was prepared in writing with regard to money which she had given to accused Shorab Khan. She further stated that she gave the said money in cash after taking the same on STATE VS SHORAB KHAN & ORS//FIR NO.133/08.
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interest from some other persons. She further stated that she does not remember the date, month and year when she had given money to accused Shorab Khan. She further denied the suggestion that she was running a dhaba in partnership when Shorab Khan and was residing with accused Shorab Khan for the last 45 years prior to the incident. She denied the suggestion that 810 cases of illicit liquor were registered against her. She admitted the suggestion that she used to reside on the said Dhaba day and night. She further stated that the office of accused Shorab Khan was situated in a residential area. She denied the suggestion that on the date of incident accused Karamat Ali gone to the duty. She denied the suggestion that she sustained injuries on her Dhaba while selling illicit liquor or that by giving injuries by driver of the truck who came to purchase illicit liquor from her Dhaba. She stated that she cannot tell the length of the danda by which she was given blow. She denied the suggestion that same danda or such type of danda are easily available in the market. She further stated that she used to only sale tea on her Dhaba.
10. Another important witness i.e. IO PW5 SI Dinesh had deposed that On 13.3.2008, he was posted as SI in PS Narela. On STATE VS SHORAB KHAN & ORS//FIR NO.133/08.
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that day, investigations of the present case was handed over to him. He has perused the file. On 14.3.2008, he reached at the spot at plot no.7, sector A10, opposite office of Shorab, Narela and he prepared the site plan Ex.PW5/A at the instance of Shamima Begum. On the same day, he alongwith HC Snehlata, HC Dilbagh and complainant Shamima Begum reached at Pocket13, A6, Narela, and from there accused Angoori Begum and Kanwar Jahan were arrested vide memo Ex.PW1/D and Ex.PW1/B, their personal search was conducted vide memos Ex.PW1/E and Ex.PW1/C, they made their disclosure statements Ex.PW1/G and Ex.PW1/F. They pointed out the place of occurrence i.e. Pocket 7, SectorA10, Narela, vide pointing out memo Ex.PW3/A. On 20.03.2008, Accused Shorab Khan had surrendered before the court and after taking the permission from the court, he was interrogated and arrested vide Arrest memo Ex.PW5/B. He made his disclosure statement Ex.PW5/C. One day PC Remand was taken. In pursuance of the disclosure statement accused Shorab got recovered one danda from the corner of his office i.e. H. No.370, Pocket7, SectorA7, Narela, Delhi. The same was seized vide memo Ex.PW5/D. Ct. Raghunath was also with him. Accused pointed out the place of occurrence vide STATE VS SHORAB KHAN & ORS//FIR NO.133/08.
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memo Ex.PW5/E. He recorded the statements of the witnesses. On the next day the accused persons were produced before the court and sent to JC. On 12.5.2008, accused Karamat Ali came in the PS and he was formally arrested vide memo Ex.PW5/F and was released on bail, as per the order of ld. Sessions Court. Later on, he was transferred from PS Narela and case file was handed over to the MHC(R). He has correctly identified the danda as Ex.P1.
In his cross examination by ld. Defence counsel he had deposed that the investigation was marked to him on 13.3.2008. He admitted that the area from where accused persons Angoori and Kanwar Jahan were arrested was a residential area. He did not issue any notice to the public persons or to the neighbours of the accused persons. He does not remember whether the house of accused persons was single story or double story. He had recorded the statement of Snehlata in the PS, but he does not remember the exact time, when the said statement was recorded. He denied the suggestion that disclosure statements were not recorded in presence of accused persons Kanwar Jahan and Angoori or that danda has been falsely planted upon the accused Shorab Khan.
He admitted that he does not show the residential area STATE VS SHORAB KHAN & ORS//FIR NO.133/08.
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in the site plan Ex.PW5/A. He had deposited the danda in the malkhana on 20.03.2008, but he could not tell the exact time, when it was deposited. He does not obtain malkhana register number regarding the depositing of the danda in the malkhana. During investigations, he does not find exact house number of office of Shorab Khan. He further admitted that regarding registration of this case, SHO, PSNarela obtained approval from DCP (Outer District). He further admitted that the present case is a dispute of money between complainant and accused Shorab Khan.
11. Ld. Addl. PP for the state has argued that from the testimony of PW1 Shamima Begum, it is proved that all the accused persons have given beatings to her on her vital part of her body i.e. head, therefore, prosecution has been able to prove the case that, the accused persons attacked injured PW1 Shamima Bagum with the intention to commit culpable homicide. Hence, all the accused persons are liable to be convicted for offence u/s. 308/34 IPC.
12. On the other hand, ld. Defence counsel has argued that the testimony of PW1 Shamima Begum is reliable because, she is an interested witness. She was herself involved in many criminal cases due to which accused Sohrab Khna had left the partnership in STATE VS SHORAB KHAN & ORS//FIR NO.133/08.
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running of the Dhaba, hence, she had grudge and due to which she had falsely implicated accused persons in this case. He further argued that no evidence has been led by the prosecution to prove that accused Shorab Khna had borrowed any money from PW1 Shamima Begum. He further argued that no independent witness has been examined to prove the allegations of PW1 Shamima Begum. He further argued that PW1 Shamima Begum had stated that when she was gone to Pocket30 his servant Mohd Alam met her. But said Mohd. Alam had not been examined by the prosecution as witness to corroborate the testimony of PW1. Further, he argued that prosecution has been failed to explain how the injured had reached to the hospital and who had taken her to the hospital. He further argued that recovery of danda from the possession of the accused Shorab Khan is also doubtful, because at that time also no independent witness has been joined. Further he argued that, neither the danda had been sent to the FSL to find out the blood stains on it. In view of abovesaid facts and circumstances, accused persons are liable to be acquitted.
13. As state above, the prime witness is PW1 Shamima Begum. On appreciation of her testimony, I found that same is full of STATE VS SHORAB KHAN & ORS//FIR NO.133/08.
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contradictions and improvements. PW1 Shamima Begum in her examination in chief stated that her statement was recorded after 34 days of the incident at PS. But, in her cross examination by ld. Addl. PP for the State, she admitted the suggestion that her statement was recorded on 10.03.2008 and second statement was recorded on 14.03.2008. On perusal of the FIR, I found same has been registered on 13.03.2008, whereas the incident is of 10.03.2008, which actually corroborated the testimony of PW1 stated in her examination in chief that her statement was recorded after 34 days, it appears that rukka was prepared ante dated after manipulation. Further, PW1 had stated that she had given Rs.3.50/ lakhs to accused Shorab Khan, which she had borrowed from someone on interest. But neither she has disclosed the name of the said person from whom she had taken the said money, nor said person had been examined as witness by the prosecution to corroborate her testimony.
14. She has failed to explain why such a huge amount she gave to accused Shorab after taking the same on interest. Prosecution has examined no witness in whose presence said amount was given by PW1 to accused Shorab Khan. Neither STATE VS SHORAB KHAN & ORS//FIR NO.133/08.
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prosecution has placed on record any document for giving the amount. Hence, in my view prosecution is failed to prove the cause of quarrel. Further she had stated that when she reached at the office of Shorab Khan and PW1 Muslim, Muslim met. It is Muslim, who had informed to the accused Shorab Khan about the arrival of PW1 Shamima Begum. But the said Muslim was also not made as prosecution witness to corroborate PW1 testimony that she came to the office of accused Shorab Khan on the day of incident. Further, PW1 stated that she was gone to take milk from her Dhaba she took rickshaw for going pocket30, when she reached near SRHC Hospital, she send Mohd Alam, who was working in her Dhaba to bring milk. But she has not explained where the Mohd. Alam had met her, because if Md. Alam was with her from the Dhaba itself then why she changed the mind and sent only Mohd Alam to bring milk and went to the office of Shorab. Further, PW1 had not explained in her testimony that, how she had reached to the hospital. She had simply stated that from the injuries she became unconscious.
15. On perusal of MLC Ex.PW6/A, it is evident that PW1 was brought to the hospital by HC Balbir Singh of the PCR, but no evidence has been produced by prosecution who informed the PCR. STATE VS SHORAB KHAN & ORS//FIR NO.133/08.
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No PCR Form No.1 has been placed on record in this regard. No witness who informed the PCR had been cited by the prosecution as witness for the reasons best known to the prosecution, because the informant could be a vital witness being present at the spot at the time of incident. Further, HC Balbir Singh, Incharge of PCR is also not made witness, who could prove that he had brought the PW1 Shamima Begum to the hospital from the office of Shorab.
16. Further PW1 Shamima Begum had stated that she was brutally beaten by the accused persons with the danda and fist and leg blows. But, on perusal of her MLC, it is evident that she had received only one injury i.e. "deep penetrated wound at frontal region. Clean lacerated wound of size 2cmX1cm approx on occipital region and also had tenderness on her back". She was given so much beatings as claimed by her by four accused persons then there would have been more number of injuries on her. Therefore, it contradict the testimony of PW1 that she was being beaten by four accused persons. It cannot be ruled out that she had taken the names of entire family of accused Shorab Khan because of enmity with him. The place of incident is situated in the market. Timing of the incident is 8pm. Hence, the public persons must have been STATE VS SHORAB KHAN & ORS//FIR NO.133/08.
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present there and had seen the incident, but no public persons has been joined in the investigations. IO/PW5 SI Dinesh had not stated in his statement that he had made efforts to trace any eyewitness. There is delay of three days in recording the FIR. No explanation has been by the prosecution for such delay.
17. Hence, in such circumstances, I do not find testimony of PW1 much inspire confidence and does not appear to be reliable. It would not be safe to convict the accused on the basis of her testimony in the absence of any independent corroborating evidence. Hence, I give benefit of doubt to the accused persons and acquit all the accused persons for offence punishable u/s. 308/34 IPC. They are on bail, therefore, their bail bonds and surety bonds cancelled and sureties are discharged. However, they are directed to furnish their personal bond in the sum of Rs.10,000/ with one surety of like amount in compliance of provisions of Section 437A Cr.P.C.
Announced in the open court (Sanjeev Kumar)
On 23.02.2013 Addl. Sessions Judge
Rohini Courts: Delhi.
STATE VS SHORAB KHAN & ORS//FIR NO.133/08.
PSNARELA//U/S. 308/34 IPC.