Delhi District Court
State vs (1) Moinuddin on 2 July, 2013
IN THE COURT OF SHRI P.S. TEJI : DISTRICT & SESSIONS
JUDGE (EAST), KARKARDOOMA COURTS, DELHI.
SC No.40/2011
Unique Case ID No.02402R0314082011
FIR No.407/2011
Police Station Jagat Puri
Under Section 325/308/506/201/34 IPC
State Versus (1) Moinuddin
S/o Abdul Hafiz
R/o H.No.273,Gali No.4,
Khuraji Khas, Delhi51.
(2) Mohd.Danish
S/o Mohd. Abdul Khalid
R/o H.No.273,Gali No.4,
Khuraji Khas, Delhi51.
(3) Firoz
S/o Abdul Hafiz
R/o H.No.273,Gali No.4,
Khuraji Khas, Delhi51.
Date of Institution : 01.11.2011
Date of judgment reserved : 04.06.2013
Date of judgment : 01.07.2013
SC No.40/2011 State vs Moinuddin etc. Page 1 of 35
JUDGMENT
Three accused persons, namely, Moinuddin, Mohd. Danish and Firoz have been sent to face trial by the police of Police Station Jagat Puri in case FIR No.407/2011 under Section 325/308/ 506/201/34 IPC.
2 Facts, in brief, are that on 26.08.2011, on receipt of DD No.48A, HC Murlidhar (PW2) left for the spot i.e. House No.273, Khureji Khas, Delhi. On reaching the spot, it was revealed to HC Murlidhar (PW2) that injured had been removed to Hedgewar Hospital by PCR Van. HC Murlidhar (PW2) went to hospital where he asked the injured persons to give their statements. However, injured insisted for getting medical treatment first and then to give statement. DD No. 48A was kept pending. On 27.08.2011, HC Murlidhar (PW2) along with Ct. Kanwar Pal Singh (PW5) reached House No.274, Khureji Khas, Delhi and met Naim Akhtar (PW1) who gave his statement Ex.PW1/A to the police that he was resident of H.No.274, Khureji Khas and had been doing a private service. He has stated that accused Danish and Shahrukh (juvenile) along with their associates used to sit in front of his house and evetease the girls passing by. They were objected to by the complainant. On 27.08.2011, accused Shahrukh SC No.40/2011 State vs Moinuddin etc. Page 2 of 35 (juvenile) again were standing in front of his house and were eve teasing the passingby girls. Complainant made a complaint to uncle of accused persons, namely, Moinuddin. After about 1520 minutes at about 6.40 p.m., accused Shahrukh(juvenile) and Danish came outside the house of complainant and called him outside. When complainant came out of his house, accused Shahrukh(juvenile) and Danish started abusing him and when he objected, both the accused grappled with him. In the meantime, accused persons, namely, Moinuddin and Firoz having iron rods in their hands came there and threatened the complainant to finish him. Accused Firoz hit an iron rod on the head of complainant. Due to noises, brother of complainant, namely, Gulfam and his father Abdul Hafiz also came there. When both of them tried to save complainant, accused Moinuddin @ Manni hit an iron rod on the head of Gulfam whereas accused Danish caught hold of his father and accused Shahrukh (juvenile) hit a stone on the leg of his father due to which both of them sustained injuries. 3 On the basis of statement Ex.PW1/A of complainant/ injured (PW1), HC Murlidhar (PW2) made endorsement Ex.PW2/A and sent Ct. Kanwar Pal (PW5) to the police station for registration of case. On the basis of rukka Ex.PW2/A, FIR of the present case was SC No.40/2011 State vs Moinuddin etc. Page 3 of 35 registered. After registration of FIR, investigation of the case was assigned to SI Dinesh Kumar (PW12) who reached at the spot. Thereafter, IO SI Dinesh Kumar laong with Ct. Kanwar Pal(PW5) reached at the house of the complainant where Naim Akhtar(PW1) met them and joined the investigation. IO prepared site plan Ex.PW12/A at the instance of Naim Akhtar(PW1). IO recorded supplementary statement of the complainant. IO also recorded statement of other injured Mohd. Hafiz and Gulfam. On 27.09.2011, accused Firoz was arrested from near Khureji Petrol Pump. IO recorded his disclosure statement Ex.PW6/A, arrested him vide arrest memo Ex.PW6/B and conducted his personal search vide memo Ex.PW6/C. He pointed out the place of incident vide memo Ex.PW6/D. On 29.08.2011, accused Moinuddin and Danish were arrested vide arrest memos Ex.PW5/B and Ex.PW5/A and their personal searches Ex.PW5/C and Ex.PW5/D were carried out. Accused Moinuddin and Danish pointed out the place of of incident vide pointing out memos Ex.PW5/E and Ex.PW5/F. Accused Moinuddin and Danish made disclosure statements Ex.PW5/G and Ex.PW5/H respectively. On 29.09.2011, fourth accused Shahrukh was also apprehended but he was found to be juvenile, therefore, proceedings were conducted against him SC No.40/2011 State vs Moinuddin etc. Page 4 of 35 separately.
4 After completion of the investigation, chargesheet was filed in the Court of Ld. M.M. who after complying with provisions of section 207 Cr.P.C. committed the case to the Court of Sessions which in turn assigned the case to this Court for trial in accordance with law.
5 After hearing Ld. Counsel for accused persons and Ld. Addl. PP for the State, charges under Section 308/325/506/34 IPC were framed against all the accused persons. Separate charges under Section 201 IPC were framed against accused Moinuddin and Firoz. Accused persons pleaded not guilty to the charges framed against them and claimed a trial.
6 In order to prove its case, prosecution has examined 12 witnesses. PW1 Naim Akhtar, PW3 Abdul Hafiz and PW4 Mohd. Gulfam are the injured witnesses. PW2 HC Murlidhar, PW5 Ct. Kanwar Pal, PW6 Ct. Ombir joined the investigation of the present case conducted by investigating officer PW12 SI Dinesh Kumar. PW8 ASI Mohd. Mushtaq removed the injured to the hospital. PW7 Dr. Amit Aggarwal had medically examined injured Gulfam and Abdul Hafiz and had given the nature of injury on the person of Gulfam as SC No.40/2011 State vs Moinuddin etc. Page 5 of 35 simple and on the person of Abdul Hafiz as grievous. PW9 Dr. Sachin Harit had medically examined injured Gulfam, Abdul Hafiz and Naim and referred them to Surgery and Orthopaedic department. PW10 Dr. Natasha Gupta examined the xray plates of injured Abdul Hafiz and Gulfam. PW11 Dr. Vivek Sachan had proved the handwriting of Dr. Pushpender on MLC Ex.PW9/A of injured Naim wherein nature of injury opined to be simple.
7 After completion of prosecution evidence, statements of accused persons under section 313 Cr.P.C. were recorded in which they have denied the case of the prosecution in toto and have stated that they had been falsely implicated in the present case. Accused Moinuddin has stated that complainant party had come to their house armed with danda and iron rod and attacked upon him, Shahrukh, Danish and Shahnaz and caused injuries to them. An FIR No.52/12 was registered against the complainant party. He has further stated that complainant party was the aggressor and they were the sufferer. He has denied given any beatings to the complainant party and has stated that complainant party sustained injuries while running away from the spot after beating them. Similar statements have been made by other accused persons. Accused persons opted to adduce evidence SC No.40/2011 State vs Moinuddin etc. Page 6 of 35 in their defence and examined one Shahnaz @ Munni as DW1 in their defence.
8 I have heard. Ld. Addl. PP for the State and Ld. Counsel for accused persons. I have meticulously gone through their submissions and material available on record.
Incident 9 Case of the prosecution is that on the day of incident, accused persons picked up a quarrel with the complainant party and caused injuries on the person of injured Naim Akhtar, Gulfam and Hafiz.
10 To prove these allegations, prosecution has examined the injured Naim Akhtar as PW1. In his testimony, injured Naim (PW1) has testified that he knew the accued persons Moinuddin @ Manni, Firoz and Mohd. Danish. Earlier, PW1 was doing a private service in an export company. Accused Danish along with his brother used to be present in front of opposite to the house of PW1 and passed comments/tones and eve teased girls passing from there. They had made complaints them to their uncle i.e. accused Moinuddin and Firoz, but accused Danish and his brother Shahrukh (juvenile) did not stop from doing so. PW1 has further stated that on 26.08.2011 between SC No.40/2011 State vs Moinuddin etc. Page 7 of 35 6.00 to 7.00 p.m. in the evening accused Danish and his brother Shahrukh (juvenile) hurled bad language for PW1 and thereafter both the accused started beating him. Accused Firoz and Moinuddin armed with iron rod also came there and thereafter accused Firoz gave iron rod blow on the head of PW1. Mohd. Gulfam and Abdul Hafiz, brother and father of PW1 also reached there on hearing the noise. Accused Moinuddin gave iron rod blow on the head of Gulfam whereas accused Danish and Shahrukh (juvenile) gave beatings to Abdul Hafiz. This witness has further stated that his father is a senior citizen and was a patient to sugar and paralysis. Accused Shahrukh (juvenile), brother of accused Danish gave stone blow on the leg of father of PW1 and caused fracture to him. Police was informed and police reached at the spot. All the injured persons were removed to Hedgewar Hospital. His statement Ex.PW1/A was recorded by the IO on the next day i.e. 27.08.2011.
11 In his crossexamination, witness (PW1) has specifically stated that he had made complaints about the activities of accused Danish and his brother Shahrukh (juvenile) to accused Moinuddin and Firoz on 24.08.2011 and 25.08.2011 at about 4.00/5.00 p.m. He has also stated that accused Danish and Shahrukh were eve SC No.40/2011 State vs Moinuddin etc. Page 8 of 35 teasing the girls at about 6.00 p.m. PCR was informed by his brother Mohd. Sajid or Abdul Hamid. 15 to 20 public persons had gathered at the spot when the accused persons assaulted them and PCR reached there. Police officials stayed in the hospital for about half an hour. PW1 and his father Abdul Hafiz were discharged from the hospital at about 1.00 a.m. while his brother Gulfam was discharged on next day. Doctor did not make enquiry about the name of assailants. This witness has also stated that blood had oozed from his head and fell down on the spot in front of their house No.274 in Kabristan Wali Gali. He has stated that police did not seal his blood stained clothes. He has admitted that he was conscious during his medical examination. He also admitted that he had not fallen down when accused persons assaulted him. He further stated that incident had taken place in front of their house No.274. His father and brother reached at the spot when he raised alarm. He has also stated that his brother and father were not present when accused persons assaulted him. He has denied that accused persons had not assaulted them with the iron rods. He has also denied that Shahnaz sustained injuries from their hand or that they tore her cloth. However, he has admitted that FIR No.52/2012 was registered against him. He has admitted that SC No.40/2011 State vs Moinuddin etc. Page 9 of 35 police came to his house and recorded his statement on 27.08.2011. He stated that accused Danish caught hold of his father from back and then assaulted him. He has further stated that he had seen accused Shahrukh (juvenile) assaulting his father with big stone. 12 Mutatis Mutandis PW3 Abdul Hafiz and PW4 Mohd. Gulfam have also stated to the same effect as testified by PW1 Naim Akhtar. PW3 and PW4 have stated that accused Danish and Shahrukh (juvenile) used to sit in front of their house and eve teased the girls passing from there. They have tried to make them understand not to indulge in such activities but accused did not restrain. They have also testified that on 26.08.2011, they were present in their house at about 6.00/7.00 p.m. when they heard the crying from gali. They came in the gali and saw that blood was oozing from the head of Naim Akhtar (PW1) and accused Firoz was causing Saria blow on the person of Naim Akhtar. Abdul Hafiz was assaulted by accused Shahrukh (juvenile) who gave stone blow on his left leg, whereas accused persons caught hold of Mohd. Gulfam when he tried to save Naim Akhtar. Accused Moinuddin had given iron rod blow on the head of Mohd. Gulfam, accused Danish caught hold of Abdul Hafiz and accused Shahrukh (juvenile) on the left leg of Abdul Hafiz. They had SC No.40/2011 State vs Moinuddin etc. Page 10 of 35 sustained injuries. Police was informed and they were removed to hospital.
13 Both these witnesses i.e. PW3 and PW4 were cross examined at length by Ld. Defence counsel, but they stuck to their stand that on the day of incident firstly PW1 Naim Akhtar was assaulted by accused persons and when PW3 and PW4 reached there, they were also assaulted by accused persons. The defence has failed to put any dent to their testimony.
14 From the statement of the injured Naim Akhtar (PW1), it has come on record that on the day of incident, firstly accused persons were advised by him not to indulge in eve teasing the girls and when his voice remained unheard, accused persons assaulted him for the reason that he was stopping accused Danish and Shahrukh in indulging in such activities. Complainant/injured Naim Akhtar (PW1) was crossexamined by the Ld. Defence counsel but he remained firm on his stand that accused persons firstly quarreled with him on the day of incident and then caused injury on his person. He has also stated that when his father and brother (PW3 & PW4) came to rescue him from the hands of accused persons, they too were assaulted by accused persons. The defence tried to demonstrate from the cross SC No.40/2011 State vs Moinuddin etc. Page 11 of 35 examination of complainant/injured Naim Akhtar (PW1) that accused had not given any injury to complainant side, but the complainant/ injured (PW1) has denied the suggestion of defence that accused persons were not the assailants, rather he was specific that on the day of incident, accused persons firstly assaulted him and then assaulted his brother and father (PW3 & PW4).
15 Testimony of injured Naim Akhtar (PW1) has duly been corroborated by PW3 Abdul Hafiz and PW4 Mohd. Gulfam. Both these witnesses i.e. PW3 and PW4 are also the injured witnesses. Both these witnesses have also stated that on the day of incident, when they came outside their house on hearing the cries of PW1 Naim Akhtar, they saw that accused persons were assaulting PW1. When they intervened in the scuffle, they were also assaulted by accused persons. All these injured witnesses duly identified the accused persons in the Court being assailants.
16 So, from the testimony of complainant/injured Naim Akhtar (PW1) as well as other injured PW3 Abdul Hafiz and PW4 Mohd. Gulfam, the prosecution has successfully established that the incident of assaulting by giving iron rod blows and stone blow on the person of above said injured persons had taken place which was SC No.40/2011 State vs Moinuddin etc. Page 12 of 35 caused by the accused persons along with their associate Shahrukh (juvenile).
17 The incident in which injured (PW1, PW3 & PW4)) suffered injuries at the hands of accused persons has also been corroborated by medical evidence. The MLC Ex.PW7/B of injured Abdul Hafiz shows that he received CLW over his left leg apart from tenderness. The xray report Ex.PW10/A of Abdul Hafiz shows that he suffered fracture in tibia. As per MLC Ex.PW7/B of Abdul Hafiz, the Doctor opined the nature of injury as 'grievous'. MLC Ex.PW7/A of injured Gulfam shows that he had received CLW over mid parietal skull and tenderness over left thigh. Nature of injury suffered by him has been opined to be simple. MLC Ex.PW9/A of injured Naim Akhtar (PW1) shows that he received CLW on his right parietal skull. The nature of injury sustained by him was opined to be simple. Therefore, the medical evidence also corroborates the case of prosecution that PW1 Naim Akhtar and PW4 Mohd. Gulfam suffered injuries on their vital organ i.e. head, whereas injured Abdul Hafiz (PW3) suffered grievous hurt in the form of fracture on his leg. 18 In view of testimony of injured witnesses (PW1, PW3 & PW4) which has been duly corroborated by medical evidence in the SC No.40/2011 State vs Moinuddin etc. Page 13 of 35 form of MLCs Ex.PW7/A, Ex.PW7/B and Ex.PW9/A as well as xray report Ex.PW10/A of injured Abdul Hafiz, it stands proved on record that incident of assaulting the injured persons by accused persons had taken place.
Natural testimony 19 Testimony of injured Naim Akhtar (PW1) as well as other injured Abdul Hafiz (PW3) and Mohd. Gulfam (PW4) is quite natural and trustworthy. They have narrated the entire incident in very simple language and their testimony does not appear to be tutored one. Their statements are so natural that the same inspire confidence. In view of unshaken statement made by injured persons, I am of the firm view that statement of victims of the crime who happened to be eye witnesses of the incident and had suffered at the hands of the accused persons, alone is sufficient to base conviction if their solitary testimony inspires confidence of the Court. Even in the present case, testimony of injured witnesses has duly been corroborated by medical evidence.
20 Testimony of injured persons has also been corroborated by PW8 ASI Mohd. Mushtaq. PW8 has deposed that on 26.08.2011 at about 6.40 p.m., he received a call from control room SC No.40/2011 State vs Moinuddin etc. Page 14 of 35 that three boys were giving beatings near House No.273, Khureji, near petrol pump and on receipt of the said information he along with staff reached the spot and he found three persons in injured condition. He removed all the three injured persons to Dr. Hedgewar Arogya Sansthan and got them medically examined. Name of the injured came to be known as Naim, Gulfam and Abdul Hafiz.
21 So, the testimony of PW8 also corroborates the testimony of injured witnesses (PW1, PW3 and PW4) that they were assaulted and sustained injuries. All these three injured were found having injuries on their person by PCR official PW8 who removed them to hospital.
22 I have gone through the judgment of Hon'ble Apex Court in case of Machhi Singh and others vs State of Punjab 1983 Cri. L.J. 1457 in which it has been held that the evidence of the victim of the crime alone is sufficient to bring home the guilt of the accused, even if the evidence of other witnesses is excluded from the consideration. Relevant portion from para. 21 of the judgment is quoted herebelow: "So far as the first incident is concerned the conviction of the appellants rests on the testimony of three witnesses viz. PW 16 Kaka Ram, PW 21 Bagicha Ram SC No.40/2011 State vs Moinuddin etc. Page 15 of 35 and PW 20 Smt. Nankobai. Out of these three witnesses, the evidence of PW20 Nankobai is of great significance inasmuch as she had herself sustained an injury by gun shot on her head. The fact that Smt. Nankobai sustained gun shot injury in the course of this transaction is satisfactorily established by the medical evidence. Now PW 20 was an inmate of the household of Kehar Singh. Her presence at the house was therefore natural. The medical evidence therefore fully corroborates and lends support to her version that she was one of the inmates of the household and was present at the scene of offence. Her presence at the time of the offence cannot therefore be disputed. She being an injured witness, her evidence is entitled to great weight. There is an inbuilt guarantee that she was an eye witness to the incident....."
23 The facts of the abovementioned case of Machhi Singh (supra) were that the Hon'ble Apex Court put a great weight to the testimony of injured witness. Her testimony was held to be of vital significance apart from the testimony of other eye witnesses. It was also observed that the presence of injured witness cannot be disputed as she was the inmate of the house where the occurrence took place. 24 The ratio of judgment squarely covers the facts and circumstances of the present case. In the present case, injured witnesses (PW1, PW3 and PW4) have specifically deposed that SC No.40/2011 State vs Moinuddin etc. Page 16 of 35 accused persons firstly assaulted PW1 and then PW3 and PW4 with iron rod, dandas and stone due to which they suffered injuries on their person. Their testimony alone is sufficient to base the conviction, but their testimony has duly been corroborated by medical evidence and from the testimony of PW8 ASI Mohd. Mushtaq.
25 Presence of all the injured witnesses has not been disputed. Even otherwise, their presence at the house cannot been disputed by the accused persons as it is the defence of the accused persons themselves that they were assaulted by the complainant party. The testimony of all the injured persons is quite natural and trustworthy.
26 Consequently, it is held that the prosecution from the natural testimony of injured persons (PW1, PW3 & PW4) has successfully established that on the day of incident, accused persons caused head injury on the person of PW1 Naim Akhtar and PW4 Mohd. Gulfam whereas injured Abdul Hafiz (PW3) suffered fracture on his leg. Testimony of injured/victims has duly been corroborated from medical evidence in the form of their MLCs Ex.PW7/A, Ex.PW7/B, Ex.PW9/A and xray report Ex.PW10/A. SC No.40/2011 State vs Moinuddin etc. Page 17 of 35 Intention or Knowledge 27 In the present case, accused persons gave iron rod/ danda blows on the head of PW1 Naim Akhtar and PW4 Mohd. Gulfam which cannot be said with reasonable certainty that they intended to commit their murder. It is matter of record that accused persons used only blunt objects while causing blow on the head of PW1 and PW4 and that is too not with any sharp object. It has also come in evidence that injured Abdul Hafiz (PW3) suffered grievous hurt as he sustained fracture in his leg.
28 The intention or knowledge of the accused to commit the culpable homicide of complainant is to be gathered from the circumstances. There is no circumstance on the record to show that accused persons assaulted the injured PW1 & PW4 to commit their murder. Rather, the evidence shows that the accused persons had a quarrel with PW1 despite advise rendered to Danish and Shahrukh (juvenile) not to indulge in eve teasing of girls and even their parents were also informed in this regard. From the circumstances brought on record, accused persons can be attributed with the knowledge that they were likely to cause the injury which was likely to cause culpable homicide of injured PW1 and PW4. From no stretch of imagination, it SC No.40/2011 State vs Moinuddin etc. Page 18 of 35 can be said that the accused persons were not having knowledge that the injuries caused by them on the head of PW1 and PW4 with iron rod/dandas could not result into death i.e. culpable homicide. 29 I have gone through the judgment of our own Hon'ble High Court in case titled Sh. Ajit Singh & Anr. Vs. State (Govt. of NCT of Delhi), MANU/DE/0311/2010 in which it has been observed as under : "As per prosecution case, the injured was hit with an iron rod over head. The nature of injury in the MLC report is stated to be 'simple', but there is no denying the fact that complainant was hit on the head with an iron rod. There is no doubt that a blow of an iron rod on the head can cause death. If such a blow leads to death, it could be an offence punishable under 304 and 302 of IPC, but if the person survives, it is still a grave offence under Section 308 IPC. The MLC clearly shows that complainant received lacerated wounds over the right occipitalparietal region."
30 In similar circumstances, in case titled Ram Avtar Vs. The State, MANU/DE/0529/2010, the Hon'ble High Court has held as under : "In my view, the facts and circumstances of the case indicate that the intention of the appellants, when they called Avinash to the park, was to cause injuries to him SC No.40/2011 State vs Moinuddin etc. Page 19 of 35 or may be to intimidate him so as to put pressure on him to sever his relations with Ritu. Some arguments must have ensued on the appellants asking Avinash to sever his relations with Ritu. Probably, during the course of arguments and altercation that took place in the park, Ram Avtar got enraged and picked up the piece of brick which happened to be lying in the park and caused injuries using that piece of brick on the head of injured Avinash. In my view, Ram Avtar, gave brick blow to the injured with such intention or knowledge and under such circumstances, that if he had caused his death, the act committed by him, would have amounted to culpable homicide not amounting to murder, which is punishable under Section 308 of IPC. Had death of Avinash resulted from the injuries caused on his head with a piece of brick, the appellant Ram Avtar would have guilty of culpable homicide not amounting to murder punishable under Section 304 of IPC and his act would not have constituted murder punishable under Section 302 of IPC. Therefore, Ram Avtar is liable to be convicted under Section 308 and not under Section 307 of IPC."
31 The ratio of both the above judgments in Ajit Singh's case (supra) and Ram Avtar's case (supra) of Hon'ble High Court is that if an attempt is committed with intention and knowledge to commit the murder then accused is said to have committed the offence SC No.40/2011 State vs Moinuddin etc. Page 20 of 35 under Section 307 IPC, but if it is with intention without knowledge or knowledge without intention then offence would fall within the ambit of Section 308 IPC i.e. attempt to commit culpable homicide. The difference between an offence punishable under Section 307 IPC and one punishable under Section 308 IPC is marginal. 32 To establish the knowledge to commit the culpable homicide of injured Naim Akhtar and Mohd. Gulfam (PW1 & PW4), it is pertinent to mention that the iron rod/wooden danda blow was given by the accused persons on the head i.e. vital organ of their body when they objected the abuses given by accused persons and came to intervene in the quarrel between accused persons and PW1 Naim Akhtar. The injured PW1 has specifically stated that on the day of incident, accused persons present outside their house and started abusing the PW1 Naim Akhtar. When he objected to the abuses given by accused Danish and Shahrukh (juvenile), all the accused persons assaulted him on his head. PW3 & PW4 have also stated that when they came out of their house to save PW1, they too were assaulted by accused persons in which PW4 was assaulted on his head. 33 The knowledge of accused persons to cause the culpable homicide of injured/victim (PW3) is also apparent from the SC No.40/2011 State vs Moinuddin etc. Page 21 of 35 MLCs of PW1 and PW4. As per their MLCs, both these injured suffered lacerated wound on their skull.
34 In the above scenario and in view of the judgments in Ajit Singh's case (supra) and Ram Avtar's case (supra), it has well been established on record that the accused persons while causing head injuries on the person of injured (PW1 and PW4) by giving iron rod/ wooden danda blow, was having knowledge that it might cause the culpable homicide of injured Naim Akhtar (PW1) and Mohd. Gulfam (PW4). It has also been established on record that all the accused persons along with their associate Shahrukh (juvenile) caused grievous hurt to injured Abdul Hafiz (PW3).
Offence u/s 506 IPC 35 It has been alleged against the accused persons that they along with their associate Shahrukh (juvenile) after causing injuries on the person of injured persons (PW1, PW3 and PW4) criminally intimidated the injured persons and they have been charged for the offence punishable under Section 506/34 IPC. 36 There is no evidence against the accused persons that after assaulting injured persons, they either threatened or criminally intimidated the injured persons. Even in the statement Ex.PW1/A SC No.40/2011 State vs Moinuddin etc. Page 22 of 35 made by injured Naim Akhtar (PW1) to the police, he had not made any statement that after causing assault, they were threatened by the accused persons. All what has been said by him in this statement Ex.PW1/A is that firstly abuses were hurled by accused persons and then they were assaulted. Neither the complainant/injured Naim Akhtar (PW1) nor the other injured witnesses, namely, Abdul Hafiz (PW3) and Mohd. Gulfam (PW4) have stated in their testimony in the Court that they were threatened or criminally intimidated by the accused persons.
37 There is no other evidence on record to show that on the day of incident, accused persons criminally intimidated the injured persons. Therefore, all the accused persons are entitled for acquittal for the offence punishable under Section 506/34 IPC. Offence u/s 201 IPC 38 It has been alleged against accused Moinuddin and Firoz that after causing injuries to injured persons, they caused disappearance of iron rods and for the said offence they have been charged under Section 201 IPC.
39 As discussed above, it has duly been established by the prosecution that injured persons (PW1, PW3 and PW4) were SC No.40/2011 State vs Moinuddin etc. Page 23 of 35 assaulted by accused persons with the help of iron rods/wooden dandas. It has also come in the evidence that at the time of incident accused Moinuddin and Firoz were armed with iron rods. After the apprehension of both these accused persons, they had made disclosure to the effect that while running away from the spot, they had thrown the iron rods in the way/street. It has not been stated by them that they intentionally hid the iron rods to such a secluded place with a view to screen them from receiving legal punishment.
40 Even, no effort has been shown to be made by the investigating officer of the case to show that he tried to recover the said iron rods being used by accused Moinuddin and Firoz. When it has come in the disclosure statement of the both these accused that they threw the iron rods in the street, it was for the IO to get it recovered from the street. In my considered opinion, the prosecution has failed to establish that accused Moinuddin and Firoz caused disappearance of iron rods intentionally to screen themselves from receiving legal punishment. Therefore, both these accused persons are entitled for acquittal for the offence punishable under Section 201 IPC. Defence 41 Accused persons have taken the plea that they had SC No.40/2011 State vs Moinuddin etc. Page 24 of 35 been falsely implicated in the present case. In their statements under Section 313 Cr.PC, they have stated that they were given beatings by the complainant side in which DW1 Shahnaz received injuries. Accused persons examined Shahnaz @ Munni as DW1 who deposed that Sajid, Nadeem, Gullu and Naim came to her house making complaint against her children that her son Shahrukh and other boys eve teased the girls in the gali. The above said persons started hurling bad language and abuses. She asked them not to abuse. In the meanwhile, Danish, Moinuddin and Firoz intervened and asked them not to abuse. She also stated that above persons were armed with iron strips. They all dragged her from the house in the gali and they also slapped her 23 times. Her clothes were also torn by them. She somehow managed to cover herself with bedsheet and sustained injuries. Shahrukh called the police at number 100. Police came but they did not entertain their complaint. Danish, Firoz and Shahrukh sustained injuries due to assault by above persons. She had also sustained injuries on her nose and chest. Thereafter, they were taken to hospital where they were medically examined. Thereafter, Moinuddin, Firoz, Shahrukh and Danish were apprehended by police. Police did not entertain their complaint rather took action against SC No.40/2011 State vs Moinuddin etc. Page 25 of 35 them.
42 In her crossexamination by Ld Addl. PP for the State, DW1 has stated that she had not made any complaint regarding sustaining assault from the complainant party. She has denied that she had not sustained any injury and was not examined in the hospital. She has denied that she was not a witness to the incident. 43 Accused persons have not produced any evidence or material on record to show that either DW1 or they received any injury on the day of incident. They claimed that a crosscase was got registered by them against the complainant party, but has not produced any copy of FIR to show that any FIR of the same date was registered against the complainant party. No medical evidence in the form of MLC of accused persons or the MLC of DW1 has been produced on record to show that they sustained any injury on the day of incident. Therefore, accused persons have failed to show anything on record that they have been falsely implicated in the present case by the complainant party.
44 For these reasons, I do not find any ground to believe the plea of accused persons. Accused persons have failed to show any material on record in support of his plea that they have been falsely SC No.40/2011 State vs Moinuddin etc. Page 26 of 35 implicated by the complainant party, rather it has been proved beyond reasonable doubt that accused persons assaulted the injured persons. Conclusion 45 In the present case, it has been stated by the complainant/injured Naim Akhtar (PW1) that on the day of incident, accused Danish and Shahrukh (juvenile) were eve teasing the girls and when PW1 objected the said act, he was abused by accused persons and later on remaining accused Moinuddin and Firoz joined them and assaulted PW1. When PW3 Abdul Hafiz and PW4 Mohd. Gulfam tried to intervene in the quarrel, both of them were also assaulted by the accused persons.
46 Testimony of complainant/injured Naim Akhtar (PW1) has been duly corroborated by other injured witnesses Abdul Hafiz (PW3) and Mohd. Gulfam (PW4) who also stated that on hearing the noise of Naim Akhtar (PW1), they came out of their house and when they tried to save PW1 from the clutches of accused persons, they too were assaulted by accused persons.
47 The incident of assaulting injured persons (PW1, PW3 and PW4) by the accused persons along with their associate Shahrukh (juvenile) has duly been established by the prosecution. The medical SC No.40/2011 State vs Moinuddin etc. Page 27 of 35 evidence also corroborates the testimony of injured persons. MLCs of injured persons prove that PW1 Naim Akhtar and PW4 Mohd. Gulfam received head injuries, whereas PW3 Abdul Hafiz received grievous hurt on his leg.
48 As held by Hon'ble Apex Court in Machhi Singh's case (supra), the testimony of injured alone is sufficient to base the conviction of an accused. But in the present case apart from the testimony of injured witnesses (PW1, PW3 and PW4), their testimony has also been corroborated by medical evidence as well as from the testimony of PW8 ASI Mohd. Mushtaq. Testimony of injured witnesses is quite natural and trustworthy. Even their presence at the spot has not been disputed by the accused persons. 49 The knowledge of the accused in causing head injury on the head of Naim Akhtar (PW1) and Mohd. Gulfam (PW4) has been duly established and in view of judgments in cases of Ajit Singh (supra) and Ram Avtar (supra), the acts committed by accused persons falls within the definition culpable homicide not amounting to murder, punishable under Section 308/34 of IPC. It has also been established that accused persons while causing grievous hurt to PW3 Abdul Hafiz committed the offence punishable under Section 325/34 IPC. SC No.40/2011 State vs Moinuddin etc. Page 28 of 35 50 The prosecution has failed to establish its case against the accused persons for the offence punishable under Section 506/34 IPC, therefore, all the accused persons are acquitted for the offence under Section 506/34 IPC. Prosecution has further failed to prove its case against accused Moinuddin and Firoz for the offence punishable under Section 201 IPC. Consequently, both accused Moinuddin and Firoz are acquitted for the offence under Section 201 IPC. 51 Consequently, keeping in view above discussion, accused persons, namely, Moinuddin, Mohd. Danish and Firoz are hereby held guilty for the offence under Section 308/34 and 325/34 IPC and convicted accordingly.
Announced in the open Court ( P.S. TEJI )
Dated: 01.07.2013 District & Sessions Judge (East)
Karkardooma Courts, Delhi
SC No.40/2011 State vs Moinuddin etc. Page 29 of 35
IN THE COURT OF SHRI P.S. TEJI : DISTRICT & SESSIONS JUDGE (EAST), KARKARDOOMA COURTS, DELHI.
SC No.40/2011 Unique Case ID No.02402R0314082011 FIR No.407/2011 Police Station Jagat Puri Under Section 325/308/506/201/34 IPC State Versus (1) Moinuddin S/o Abdul Hafiz R/o H.No.273,Gali No.4, Khuraji Khas, Delhi51. (2) Mohd.Danish S/o Mohd. Abdul Khalid R/o H.No.273,Gali No.4, Khuraji Khas, Delhi51. (3) Firoz S/o Abdul Hafiz R/o H.No.273,Gali No.4, Khuraji Khas, Delhi51. ORDER ON SENTENCE Vide my judgment dated 1.7.2013, convicts
Moinuddin, Mohd. Danish and Firoz have been convicted for the SC No.40/2011 State vs Moinuddin etc. Page 30 of 35 commission of offences punishable under Section 308/34 and 325/34 IPC.
2 I have heard Ld. Addl. PP for the State as well as Ld counsel for convicts on the point of sentence.
3 The learned Addl. PP for the State has argued that convicts have been held guilty for attempting to commit culpable homicide and also for causing grievous hurt. It has been duly established that two innocents, namely, Naim Akhtar and Mohd. Gulfam were given iron rods and dandas blows on their head, whereas injured Abdul Hafiz sustained fracture on his leg. He has argued that the convicts deserve no leniency and maximum punishment provided under the law may be awarded to them.
4 On the other hand, learned counsel for convicts has submitted that convict Moinuddin is aged about 39 years having two minor children. Convict Firoz is aged about 40 years having two minor children. Convict Mohd. Danish is 22 years old and at the time of occurrence, he was 21 years old. Convict Moinuddin spent 3 months, convict Firoz spent 2 months, whereas convict Mohd. Danish spent 1 month in judicial custody, therefore, they are entitled to be released on probation. There is no previous conviction or involvement of the SC No.40/2011 State vs Moinuddin etc. Page 31 of 35 convicts in any other case. Convicts never abused the privilege of bail. It is claimed that convicts are first time offenders and there is every probability of their reformation. An application under section 360 Cr.P.C. read with section 4 of the Probation of Offenders Act has been moved on behalf of convicts for releasing them on probation. 5 In support of their application, ld. Counsel for the convicts has relied upon judgment in case of Vikas vs. The State ( NCT of Delhi) & Others 2013(1) JCC 753 in which chargesheet was filed against the appellants under section 308/34 IPC but they were convicted under section 323/34 IPC. The Hon'ble High Court instead of awarding custodial punishment, released them on probation. However, facts of the said case are distinguishable from the facts of the present case inasmuch as in the present case convicts have been convicted under section 308/325/34 IPC and not under section 323 IPC. The offences committed by the convicts in the present case are more serious than the said case, therefore, convicts can not get help from the said judgment.
6 Next judgment relied upon by ld counsel for convicts is in case of Sanjiv Kumar & another vs. State of Punjab 2010(2) CC cases(HC) 416 in which the accused was released on probation for the SC No.40/2011 State vs Moinuddin etc. Page 32 of 35 offence under section 308 IPC. The next judgment relied upon is in case of Sunder vs. State 2010 (2) CC cases( HC) 46 in which appellant was released on probation as his conviction was altered from under section 308 IPC to section 323 IPC.
7 The convicts can not get any help from abovesaid authorities inasmuch as they have been convicted under section 308/325/34 IPC. Role of each and every convict has clearly been established that they attempted to commit culpable homicide and also caused grievous hurt. The offences committed by the convicts in the present case are serious. It has duly been established that all the convicts along with their associate Shahrukh (juvenile) in furtherance of their common intention attempted to commit culpable homicide of Naim Akhtar and Mohd. Gulfam and also caused grievous hurt to injured Abdul Hafiz.
8 In view of facts and circumstances of the present case, in my considered opinion, convicts have failed to make out any case for their release on probation. Consequently, application under section 360 Cr.P.C. read with section 4 of the Probation of Offenders Act is hereby dismissed. The convicts are sentenced as under :
(i)Convict Moinuddin is awarded three years rigorous imprisonment and fine of Rs.10,000/ for the offence SC No.40/2011 State vs Moinuddin etc. Page 33 of 35 punishable under Section 308/34 IPC. In default of payment of fine, convict shall further undergo SI for three months. The convict is also awarded rigorous imprisonment of three years and fine of Rs.10,000/ for the offence punishable under Section 325/34 IPC. In default of payment of fine, convict shall further undergo SI for three months.
(ii)Convict Mohd. Danish is awarded three years rigorous imprisonment and fine of Rs.10,000/ for the offence punishable under Section 308/34 IPC. In default of payment of fine, convict shall further undergo SI for three months. The convict is also awarded rigorous imprisonment of three years and fine of Rs.10,000/ for the offence punishable under Section 325/34 IPC. In default of payment of fine, convict shall further undergo SI for three months.
(iii)Convict Firoz is awarded three years rigorous imprisonment and fine of Rs.10,000/ for the offence punishable under Section 308/34 IPC. In default of payment of fine, convict shall further undergo SI for three months. The convict is also awarded rigorous imprisonment of three years and fine of Rs.10,000/ for the offence punishable under Section 325/34 IPC. In default of payment of fine, convict shall further undergo SI for three months.
9 Fine, if realized, be paid/released to the victims/ injured persons of the present case. Both the sentences shall run SC No.40/2011 State vs Moinuddin etc. Page 34 of 35 concurrently. The convicts shall be entitled for the benefit of the provisions of Section 428 of Cr.P.C. Copy of the judgment and order on sentence be given free of cost to the convicts.
File be consigned to record room.
Announced in the open Court ( P.S. TEJI )
Dated: 02.07.2013 District & Sessions Judge(East)
Karkardooma Courts : Delhi
SC No.40/2011 State vs Moinuddin etc. Page 35 of 35