Delhi District Court
State vs . 1.Haji Mohd. Bashir on 28 March, 2012
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IN THE COURT OF SHRI SURINDER S. RATHI:ASJ:02:
CENTRAL: ROOM NO.32:TIS HAZARI COURTS :DELHI
ID NO:02401R0874612008
SC NO: 41/08
FIR NO: 345/07
U/s 307/34 IPC
PS HAUZ QAZI
STATE vs. 1.Haji Mohd. Bashir
2.Mohd. Sajid
JUDGMENT
1 Sl. No. of the Case SC No.41/08 2 Date of Committal to Sessions 10/11/08 3 Received by this court on transfer 30/04/11 4 Name of the complainant Mohd. Aslam 5 Date of commission of offence 56/09/2007 6 Name and Parentage of accused 1.Haji Mohd. Bashir @ Mohd. Yusuf S/o Late Mohd. Yunus R/o 3834, Sark Prem Narain, Churiwalan, Hauz Qazi, Delhi. Age:60 yrs 2.Mohd. Sajid S/o Haji Mohd. R/o 3834, Sark Prem Narain, Churiwalan, Hauz Qazi, Delhi. Age:38 7 Offence complained of U/s 307/34 IPC 8 Offence charged U/s 307/34 IPC 9 Plea of guilt Pleaded not guilty 10 Final order Convicted U/s 323/34 IPC 11 Date on which order reserved 21.3.2012 12 Date on which order announced 27.3.2012 BRIEF REASONS FOR DECISION
1. Case of the prosecution as per charge sheet is that on 5.9.2007 at 11.15pm SI Birsa Oraon of PS Hauz Qazi was on patrolling duty along with Ct. Mukesh Page 1 /17 of Judgment and order on Sentence in State Vs. Haji Mohd. dt 28.3.2012 2 when complainant Mohd. Aslam was found by them lying injured in gali Lohewali Hauz Qazi. He was shifted to the JPN Hospital where vide MLC Ex.PW9/A & Ex.PW11/C he was found suffering lacerated wound on his chest, back, abdomen and head.
2. SI recorded his statement Ex.PW1/A to the effect that he is a resident of Churiwalan and does private business. His brother in law (Sala) Shakeel Zafar @ Riayasat was married to Swalia daughter of Basheer @ Yusuf on 18.10.2000. Since there was dispute between the couple, the marriage ended up in divorce but he was held responsible for the divorce. Both had been beating and attacking him and he was once assaulted in October'2005 as well, which matter was later on compromised. He had been threatened by Basheer and his son Sajid and Javed.
3. On the night at 11.00pm when he was coming to his house from Baradari Gali Maran, Yusuf @ Bashir , his son Sajid and another person stopped him in Gali Lohewali. Basheer exhorted that he would be killed today since complainant has spoiled the life of his daughter. Both his hands were hold by Basheer while Sajid attacked him with a knife. He was stabbed on his Page 2 /17 of Judgment and order on Sentence in State Vs. Haji Mohd. dt 28.3.2012 3 head and back as well. When public persons started collecting there, the assailants fled leaving the injured.
4. On this statement Ex PW1/A ruqqa Ex.PW8/A was sent and FIR Ex.PW2/A was registered U/s 307/34 IPC. IO seized blood stained vest of injured vide memo Ex.PW1/B, blood sample of injured wife Ex.PW6/A. He prepared site plan Ex.PW8/B. Subsequent medical opinion is Ex.PW7/A . Accused were formally arrested vide Ex.PW3/A and Ex.PW3/B being on anticipatory bail. Malkhana entries are Ex.PW4/C. Exhibits were sent to FSL vide acknowledgment Ex.PW4/A and RC Ex.PW4/B. Request application is Ex.PW11/A, FSL result Ex.Px & Pz was placed on record vide application Ex.PW11/C as per which clothes and sample had AB Group human blood.
5. After conclusion of investigation , charge sheet U/s 307/34 IPC was filed. After compliance of 207 Cr.P.C, case was committed to Sessions. During the course of trial accused were charged for commission of offence punishable U/s 307/34 IPC by Ld. Predecessor on 16.07.2010.
6. To prove its case prosecution examined 12 witnesses in all. It was followed by recording of Section 313 Cr.P.C. statement of accused . Accused opted Page 3 /17 of Judgment and order on Sentence in State Vs. Haji Mohd. dt 28.3.2012 4 to lead evidence in their defence.
7. In their defence accused examined DW1 Rahis Ahlmad and DW 2 Mohd. Sajid to the effect that both the accused are peace loving persons and that there being some matrimonial dispute between the daughter of accused Hazi and brother in law of complainant Mohd. Aslam, complainant threatened accused persons to teach them.
8. I have heard arguments of Ld. Addl. PP Sh. V.K.Negi for State and Ld. Counsel Sh. S.S.Hora advocate for both accused. I have also carefully perused the entire case file.
9. At the onset it would be appropriate to have glance at the gist of deposition made by PWs.
10.PW1 Mohd. Aslam is the complainant and he narrated on the lines of his complaint Ex.PW1/A apart from identifying accused persons being assailants who caused injuries to him with knife. He also identified the blood stained T Shirt and vest as Ex.P1 & P2.
11.PW2 HC Marry Rose was Duty Officer and he proved the registration of FIR and endorsement on ruqqa.
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12.PW3 Inspector Mukesh formally arrested accused persons after they were granted anticipatory bail by Hon'ble High Court.
13.PW4 HC Ramesh Chandra took sealed pullindas alongwith sample seal to FSL.
14.PW5 Mohd.Yaseen saw accused persons causing injuries to complainant and he also identified accused.
15.PW6 Ct. Mukesh took ruqqa to PS for getting the case FIR registered and he also found injured Aslam lying at the spot.
16.PW7 Retd. SI Horam Singh is the part IO of the case and he submitted the MLC of Aslam for subsequent opinion.
17.PW8 SI Birsa is the IO of this case and he also took injured to hospital and detailed investigational steps taken by him during investigation.
18.PW9 Dr. Kamal proved the MLC of injured /complainant prepared by Dr.Vivek Gautam.
19.PW10 Dr. Deepak also proved the MLC .
20.PW11 Inspector Rajender Dubey was entrusted with further investigation of the case on 8.1.08 and he narrated on the lines of the prosecution version.
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21.PW12 HC Suresh was MHCM and he has proved relevant entry of register no.19.
22.At the onset it is argued by Ld. Addl. PP that prosecution has substantiated its case in so far as deposition of complainant injured Mohd. Aslam is not only corroborated by PW5 Mohd. Yasin but there is corroboration in the form of medical and other investigational documents.
23. As far as offence U/s 307 IPC is concerned in case titled State of Maharashtra vs. Kashirao (2003) 10 SCC 434, the apex court opined the following ingredients of offence U/s 307 IPC:
(i)that the death of a human being was attempted;
(ii)that such act was done with the intention of causing death; or that it was done with the intention of causing such bodily injury as : (a) the accused knew to be likely to cause death; or (b) was sufficient in the ordinary course of nature to cause death, or that the accused attempted to cause death by doing an act known to be so imminently dangerous that it must in all probability cause (a) death or (b) such bodily injury as is likely to cause death, the accused having no excuse for incurring the risk of causing such death or injury.
24.During the course of arguments as well as during the course of trial certain Page 6 /17 of Judgment and order on Sentence in State Vs. Haji Mohd. dt 28.3.2012 7 undisputed facts which have come on record are that both the parties are related to each other in so far as daughter of accused no.1 was married to brother in law(wife's brother) of complainant injured Aslam. It is also admitted that a matrimonial dispute had taken place between the two which ended up in both divorcing each other. The FIR registered qua the matrimonial dispute U/s 406/498 A IPC was quashed by Hon'ble High Court on account of settlement.
25.Record reveals that the incident of assault is dated 05.09.07 but complainant Aslam could not disclose the date and month of the same. However, eye witness PW5 Mohd. Yasin has correctly disclosed the same. Evidence maintained that on that day at around 11:00 PM accused Bashir caught hold of Aslam while accused Sazid attacked him with knife while accusing him that he had spoiled the life of Bashir's daughter. Both the accused fled the spot after public persons started gathering there. Meanwhile a police patrol happened to visit there and it removed him to Hospital. As per MLC Ex. PW 9/A injured smelled positive of alcohol and had suffered two shallow CLWs at upper back and chest apart from two superficial CLWs in abdomen and head.
Page 7 /17 of Judgment and order on Sentence in State Vs. Haji Mohd. dt 28.3.2012 8 The injuries were opined to be simple.
26.While opening his arguments first plea taken by defence is that no weapon of offence has been recovered in this case. This plea is correct as per record. The answer to it per se lies in the fact that both the accused were granted benefit of anticipatory bail by Hon'ble High Court. Even though there is no legal bar to join in investigation an accused who is on bail, but unfortunately the mind set and conventional line of investigation of our police force is so rigid that when somebody is granted Anticipatory Bail they think that now the accused cannot be called or joined in investigation albeit such like Anticipatory Bail orders more often than not contains a condition that accused shall join investigation as and when directed. Delhi Police needs to be proactive in such like matters and come out of its mistaken beliefs that recoveries like weapon of offence etc. can be effected only during police custody remands and not otherwise.
27. However in my considered view mere non recovery of weapon of offence does not ipso facto discard the per se believable deposition of complainant victim. More so when the same is corroborated by another eye witness apart Page 8 /17 of Judgment and order on Sentence in State Vs. Haji Mohd. dt 28.3.2012 9 from medical records . Even otherwise it is a settled legal preposition that omission on the part of investigational agency shall have no bearing on the merits of this case.
28.In case titled Paras Yadav and Ors. v. State of Bihar, 1999(1) RCR (Criminal) 627 : (1999(2) SCC 126) it was held that:
"if the lapse or omission is committed by the investigating agency or because of negligence the prosecution evidence is required to be examined de hors such omissions to find out whether the said evidence is reliable or not. The contaminated conduct of officials should not stand on the way of evaluating the evidence by the courts; otherwise the designed mischief would be perpetuated and justice would be denied to the complainant party"
29.It was observed in Ram Bihari Yadav v. State of Bihar and Ors., 1998(2) RCR(Criminal) 403 : (1998(4) SCC 517) that "if primacy is given to such designed or negligent investigation, to the omission or lapses by perfunctory investigation or omissions, the faith and confidence of the people would be shaken not only in the Law enforcing agency but also in the administration of justice."
30.The view was again reiterated in Amar Singh v. Balwinder Singh and Ors., 2003(1) RCR(Criminal) 701 : (2003(2) SCC 518) ".
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31.In case titled State of Karnatka Vs. MN Ram Dass AIR 2002 SC (3109) Hon'ble Supreme Court observed, "Lapse in investigation will not caste a cloud of doubt on prosecution case . Benefit of an act or omission of the investigating agency should not go to the accused in the interest of justice."
32.Similar observation was made by Hon'ble Supreme Court in Sachdevan Vs. State AIR 2002 SC 215 that:
" any irregularity in investigation should not be allowed to be some tool to dislodge the entire prosecution case on merits."
33.While referring to deposition of PW1 it is argued that he did not mention the specific time of assault which as per prosecution case and deposition of eye witness PW5 is 11 PM. In his statement Pw1 simply refers that incident is that of evening. Another plea raised is that PW1 uses the word "they" when he said that he was caught by the accused before ending that Sajid attacked with Churi. It is submitted that it has not been specifically mentioned that it was Bashir who had caught hold of him. I do not read much into this plea in so far as a person who had received multiple wounds on his body and who is Page 10 /17 of Judgment and order on Sentence in State Vs. Haji Mohd. dt 28.3.2012 11 deposing in the court after more than 3 years cannot be expected to depose with mathematical precision. It is a settled legal preposition that humans do not possess photographic memory and it is quiet natural for a person to mis or add a point while narrating an incident after year of observing it. Even otherwise PW1 Aslam has specifically mentioned that after he was caught by the accused while Sajid assaulted him with Chhuri and as such there is sufficient description of the sequence of events.
34.Another plea taken is that in his cross examination PW1 stated that PW5 Mohd. Yasin was not known to him prior to the incident but still in his Asal Tehrir Ex. PW 1/A he has mentioned Name and Father's Name of Yasin. On this score it is observed that when PW1 Aslam was assaulted by the accused persons , public persons including Yasin came his rescue. The assault took place at 11:00 PM whereas rukka was sent on the next date i.e. 7:25 AM. There was sufficient time in between during which Aslam must have interacted with Yasin and came to know his name and other particulars. Aslam has specifically denied that Yasin was an acquaintance of his since prior to incident. Similar statement was made by PW Yasin when he denied Page 11 /17 of Judgment and order on Sentence in State Vs. Haji Mohd. dt 28.3.2012 12 that Aslam was known to him prior to assault as well.
35. Another plea taken is that incident had taken place at around 11:00 PM while FIR was registered on the next day i.e. 8 AM after delay of around 9 hours. The time taken in the same stands duly explained in so far as injured was removed to hospital at around 12 in the night. The priority at that juncture was his well being and treatment. From the Casualty he was referred to Surgery Ward and was admitted there. For this reason I see no delay in recording of this statement.
36.Even though during the course of final arguments the sole defence taken by both the accused is a plea of albeit stating that neither of the accused was present at the spot. It is interesting to observe that this plea has neither been suggested to either of the witnesses nor any positive defence in this regard was led during the final arguments.
37.Another plea was taken that injuries suffered by PW1 Aslam must have self inflicted one but record reveals that this has never been suggested by either of the PWs or even the doctors who proved the MLC i.e. PW9 Dr. Kamal and PW10 Dr. Deepak . As such I find these pleas to little too late. It is also Page 12 /17 of Judgment and order on Sentence in State Vs. Haji Mohd. dt 28.3.2012 13 argued that accused Sajid has a handicap in his right hand as he is an amputee of three fingers and as such he could not have assaulted PW1 in the manner stated. Admittedly his left hand is hail and hearty and it is not improbable that he could not have assaulted with his left hand. Usage of right hand by the accused Sajid has not even been pleaded by any of the PWs and as such this plea is of no avail to the defence.
38.However, on merits the nature of the injuries which are superficial CLWs do not satisfy the ingredients of offence U/s 307 IPC that accused persons were desirous of murdering Aslam as sought to be made out during trial. As such no case of conviction is made out U/s 307 IPC however considering the simple nature of injuries which were referred to blunt in nature finding , only conviction U/s 323/34 IPC is made out. Both the accused accordingly convicted for commission of offence punishable U/s 323/34 IPC. They shall be heard separately on the point of sentence. ANNOUNCED AND DICTATED IN OPEN COURT ON : 27.3.2012 (SURINDER S. RATHI) Addl. Sessions Judge02 Central : Delhi Page 13 /17 of Judgment and order on Sentence in State Vs. Haji Mohd. dt 28.3.2012 14 IN THE COURT OF SHRI SURINDER S. RATHI :ASJ02 CENTRAL:ROOM NO: 32: TIS HAZARI COURTS: DELHI ID NO:02401R0874612008 SC NO: 41/08 FIR NO: 345/07 U/s 323/34 IPC PS HAUZ QAZI STATE vs. 1.Haji Mohd. Bashir
2.Mohd. Sajid ORDER ON SENTENCE
1. Vide separate judgment dated 27.3.2012 accused Haji Mohd. Bashir and Mohd. Sajid were found guilty of commission of offence punishable U/s 323/34 IPC and they were convicted accordingly.
2. I have heard arguments of Ld. Addl. PP Sh. V.K. Negi for State and Ld. Defence Counsel Sh. S.S.Hora advocate for both the convicts. Ld. Counsel for complainant Sh. M.A.Khan, advocate is also heard. I have also perused the entire file.
3. On the point of sentence, it has been argued by Ld. Addl. PP that both the convicts assaulted victim Aslam in the night on account of matrimonial dispute between the families causing several injuries on his body and as such they do not deserve any leniency after their case of U/s 307/34 IPC has resulted into conviction only U/s 323/34 IPC.
4. As far as convicts are concerned, Mohd. Bashir is said to be 61 years old man suffering from heart ailment. Mohd. Sajid , who is son of Mohd. Bashir is Page 14 /17 of Judgment and order on Sentence in State Vs. Haji Mohd. dt 28.3.2012 15 said to be a married man having three children. He is also physically challenged as he has lost three fingers of his right hand. It is stated that they have no previous criminal involvement and are not previous convict. It is prayed that be given benefit of Probation .
5. It is evident that both the convicts are not perse criminal elements and are family men having roots in the society. The reason which led to the assault in hand was an emotional one in so far as it is admitted case of the parties that married life of daughter of Mohd. Bashir Ms.Saheen, who happens to be sister of Mohd. Sajid, was ended up into divorce after she was married to injured / complainant Aslam, brother in law. Considering the age of convict no.1 and the physically challenged portrait of convict no.2, I am of the considered view that they can be granted benefit of Probation so that they get opportunity to reform themselves.
6. In case titled Mohd. Giasuddin Vs. State of AP AIR 1977 SC 198, Hon'ble Supreme Court while emphasising the reformative angle of sentencing policy observed:
" a holistic view of sentencing and a final perception of the effect of imprisonment give short shrift to draconian severity as self defeating the fillips meditational relaxional, psychic meditation and like exercises as apt to be more rewarding. Therefore, emphasis has to be as much as on men as on the system, on the inner imbalance as on the outer tensions. Perhaps, the time has come for Indian Criminologist to rely more on Patanjali Sutra as a scientific curative for crimogenic factors that on the Page 15 /17 of Judgment and order on Sentence in State Vs. Haji Mohd. dt 28.3.2012 16 blind jail term set out in the Penal Code and that may be why western researchers are seeking Indian Yogic Ways of normalizing the individual and the group........................ incidentally, we may glance at the present system which leaves much to be desired in the sense of humanizing and reforming, the man we call criminal................. we have dealt with the subject sufficiently to set the humanitarian tone that must inform the sentencing judge, the Karuna that must line his verdict. The same compassionate outlook is reflected in some of the decisions of this Court and of the High Court indicating the distance between current penal strategy and Hammurabi's Code , which, in about 1975 BC, insisted on "an eye for an eye , a tooth for a tooth" ................... A proper sentence is the amalgam of many factors such as the nature of the offence, the circumstances extenuating or aggravating of the offence, the prior criminal record if any , of the offender , the age of the offender , the record of the offender as to employment , the background of the offender with reference to education, home life sobriety and social adjustment, the emotional and mental condition of the offender, the prospects for the rehabilitation of the offender, the possibility of return of the offender to normal life in the community, the possibility of treatment or training of the offender, the possibility that the sentence may serve as a deterrent to crime by the offender or by others and the current community need, if any for such a deterrent in respect of the particular type of offence. These factors have to be taken in to account by the Court in deciding upon the appropriate sentence..... The judge must exercise this discretionary power, drawing his inspiration from the humanitarian spirit of the law."
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7. Having said this , both the convicts can not escape their liability to compensate the victim for the pain, agony an injuries he underwent at their hands.
8. As such both the convicts are granted benefit of probation of their furnishing personal bond and surety bond in sum of Rs.25,000/ each for a period of one year for peace keeping and good behaviour. This benefit is granted subject to their compensating Aslam by paying Rs.15,000/ each by way of draft within one month from today. The draft shall be placed on record in the Court and the same can be collected by the Victim as a token of compensation.
9. Copy of judgment and order on sentence be supplied to the convicts free of cost. File be consigned to RR after compliance.
ANNOUNCED AND DICTATED IN OPEN COURT ON : 28/03/2012 (SURINDER S. RATHI) Addl. Sessions Judge02 Central : Delhi Page 17 /17 of Judgment and order on Sentence in State Vs. Haji Mohd. dt 28.3.2012