Delhi District Court
(27) vs Firoz Etc. Sc No. 92/14 Page 27 Of 32 Pages on 28 July, 2014
(1)
IN THE COURT OF SH. GIRISH KATHPALIA, ASJ05,
SOUTH EAST DISTRICT, SAKET, NEW DELHI
SC No. 92/14
STATE
vs
1.Firoz S/o Ramjani
R/o H.No. 52, Gali No. 7,
Bhagirathi Vihar, Brijpuri,
Delhi 94.
2.Nabeel S/o Mohd. Umar,
R/o C81, Abul Fazal EnclaveII,
Jamia Nagar, Delhi.
FIR No. 512/2012
PS Jamia Nagar
Offence under Section 308/34 IPC
Unique ID : 02406R0047122013
Date of Committal : 15.05.2013
First Date in this Court : 12.02.2014
Date of conclusion of arguments : 25.07.2014
Date of decision : 28.07.2014
J U D G M E N T
1. The case brought by the prosecution is as follows.
2. On 26.6.2012 at about 11:55am, DD No. 21A was recorded at PS Jamia Nagar to the effect that Dr. Ibrahim of Alshifa hospital had intimated over telephone that Nafis Ahmed who was injured in a quarrel was admitted by his relative in the hospital, so police be sent; the State vs. Firoz etc. SC No. 92/14 Page 1 of 32 Pages (2) information was telephonically conveyed to HC Sheikh Saifuddin who proceeded to the spot. Thereafter, on the same day at about 12:07pm, DD No. 22A was recorded at PS Jamia Nagar to the effect that wireless operator informed that Shiv Singh had reported about a quarrel in D Block, Abul Fazal hospital, Emergency and the said information also was conveyed to HC Sheikh Saifuddin who proceeded to the spot. On the basis of DD No. 21A and 22A, HC Sheikh Saifuddin alongwith Ct. Rajender reached Alshifa hospital where he found one Nafis Ahmed in injured condition under treatment; despite the doctor having declared the injured fit for statement, the injured was unable to give statement and doctor referred him to some higher center for ENT bleed. On the same day, at 3:20pm DD No. 50B was recorded at PS Jamia Nagar to the effect that Ct. Jasbir of trauma centre had telephonically informed that Nafis Ahmed, referred by Alshifa hospital had been got admitted in trauma centre and this information also was conveyed to HC Sheikh Saifuddin, who alongwith the accompanying constable reached the trauma centre, AIIMS where the injured Nafis Ahmed was found under treatment. HC Sheikh State vs. Firoz etc. SC No. 92/14 Page 2 of 32 Pages (3) Saifuddin recorded statement of injured Nafis Ahmed and after preparing rukka thereon, got an FIR registered for offence under Section 308 IPC.
3. In his statement which forms the basis of the FIR, the injured Nafis Ahmed stated that he had been residing and running his bakery from the same house; that about two days ago he had exchange of hot words with Firoz and Nabeel regarding their children; that on 26.6.2012 at about 10:45am, when he was going to fetch some goods and reached near house of Nabeel C81, Abul Fazal Enclave, Nabeel and Firoz suddenly came out of their house and Nabeel caught hold of his hands and Firoz who was carrying a danda gave a blow on his head and both of them started beating him up with fists and kicks, stating that he would be taught a lesson; that on account of assault he fell down and thereafter both the assailants fled the spot alongwith danda.
4. Under the directions of the SHO, investigation of the case was assigned to SI Shiv Kumar, who recorded statements of witnesses, prepared the site plan, obtained the result on the MLC and formally arrested the accused persons who had been granted anticipatory bail by State vs. Firoz etc. SC No. 92/14 Page 3 of 32 Pages (4) the Hon'ble Delhi High Court. Upon completion of investigation, charge sheet was filed against the accused persons for offence under Section 308/34 IPC in the Magisterial court from where upon committal, the trial was assigned to my learned predecessor who framed charge against the accused persons for offence under Sec. 308/34 IPC to which both the accused persons pleaded not guilty and claimed trial.
5. In support of its case, prosecution examined total five witnesses, whereafter the entire prosecution evidence was put to both the accused persons in their statement under Sec. 313 Cr.P.C. The accused persons denied the truthfulness of prosecution evidence and pleaded that they have been falsely implicated in this case. Both the accused persons in their statement under Sec. 313 Cr.P.C. expressed desire to lead defence evidence but later on, after discussing with their counsel, they opted not to lead any evidence, so defence evidence was closed by way of their statement.
6. A brief compendium of the evidence adduced on behalf of prosecution is as follows.
State vs. Firoz etc. SC No. 92/14 Page 4 of 32 Pages (5)
7. PW 1 SI Ombir Singh, who was posted at the relevant time as duty officer in PS Jamia Nagar proved a copy of FIR as Ex. PW 1/A and his endorsement on the rukka as Ex. PW 1/B.
8. PW 2 HC Sheikh Saifuddin narrated the above described events of his visit to Alshifa hospital on the basis of DD No. 20A and DD No. 22A followed by collection of MLC and inability of the injured to give statement despite the opinion of the doctor that the injured was fit for statement, followed by his return to the police station, followed by receipt of DD No. 50B and his visit to the hospital, followed by recording of statement of injured Nafis, preparation of rukka and registration of FIR. PW 2 proved on record the statement of injured Nafis as Ex. PW 2/A, rukka as Ex. PW 2/B and DD entries as Ex. PW 2/CE. In his cross examination, PW 2 stated that when he reached the hospital by about 12:30pm, the injured had already been examined and his MLC had already been prepared; that after he reached the hospital, the injured was referred to trauma centre; that he returned to the police station from Alshifa hospital without recording statement of the injured; that at State vs. Firoz etc. SC No. 92/14 Page 5 of 32 Pages (6) trauma centre no separate MLC was prepared and he recorded the statement of the injured at trauma centre. PW 2 denied the defence suggestion that statement of injured was recorded by him not at trauma centre but at the police station two days after the alleged incident. 9.1. PW 3 injured Nafis Ahmed deposed that about 23 days before 26.6.2012 there was exchange of hot words between him and the accused persons over children; that on 26.6.2012 at about 11:30am when he was returning home from work and went to a local shop to purchase grocery, at the time when he was passing in front of house of Nabeel, suddenly Nabeel came out and caught hold of him; that Firoz suddenly hit a danda on his head; that he tried to extricate himself but could not succeed and thereafter both the accused persons assaulted him with fists and kicks due to which he became unconscious and was taken to a hospital, from where he was taken to trauma centre; that his statement Ex. PW 2/A was recorded at trauma centre; that about three days after the incident he recovered and showed the police the place of incident. PW 3 identified both the accused persons in court.
State vs. Firoz etc. SC No. 92/14 Page 6 of 32 Pages (7) 9.2 In his cross examination, PW 3 stated that he is working as
salesman of bakery products and accused persons also were engaged in same work at the time of occurrence; that the previous quarrel over children was that he was carrying his infant daughter in his lap when accused Firoz drove past at fast speed to which he objected and that lead to exchange of hot words and at that time Nabeel was sitting pillion on motorcycle of Firoz; that as regards the said exchange of hot words he did not lodge any police complaint as it was not a big matter; that he used to pass the house of accused Nabeel every day and used to meet both the accused persons daily but during the period between the exchange of hot words and the alleged occurrence, no untoward incident occurred; that since the police did not ask him, he did not tell them the description of the danda used in the alleged occurrence; that he regained consciousness in the evening in the trauma centre and thereafter he came to know that he had been taken to the hospital by Gafeer but he could not tell the exact time when he regained consciousness; that it is not that he was totally unconscious; that he was conscious but not in a position to speak; that State vs. Firoz etc. SC No. 92/14 Page 7 of 32 Pages (8) after the assault, his clothes got blood stained but he did not give his clothes to the doctor or police; that he had told the doctor the details of injuries suffered by him and the said injuries were multiple including bleeding from ear, injury on right eyebrow, head injury and injury on shoulders as well; that he knew both the accused persons for past 15 years and told their names to the doctor at trauma centre but not to the doctor at Alshifa hospital; that Gafeer also knew names of both the accused persons as all of them belonged to the same area; that from the spot to the Alshifa hospital he was taken on a motorcycle with one person sitting behind to hold him but he did not know as to who was sitting behind him on the motorcycle and did not know to whom the motorcycle belonged; that police met him for the first time in trauma centre; that he did not remember if any documentary work was done by the police when he showed them the spot. PW 3 denied the defence suggestions that he was never taken to trauma centre; that he owed Rs. 10,000/ to Firoz, so he got Firoz falsely booked in this case; that the injured suffered by him were either self inflicted or on account of fall.
State vs. Firoz etc. SC No. 92/14 Page 8 of 32 Pages (9)
10. PW 4 Dr. Abdur Rehman of Alshifa hospital proved the MLC of Nafis Ahmed as Ex. PW 4/A, stating that Dr. Ibrahim who prepared the MLC had left the hospital and his whereabouts were not known and having seen Dr. Ibrahim writing and signing in the course of official duties, he could identify handwriting and signatures of Dr. Ibrahim. 11.1 PW 5 SI Shiv Kumar, investigating officer (IO) of the case deposed that on 26.6.2012 investigation of this case was assigned to him, so he went to the spot where he met HC Saifuddin but could not locate the accused persons; that on the night of 26.6.2012 the complainant Nafis Ahmed got discharged from AIIMS and he asked the complainant to join investigation for statement but the complainant was not in a position to do so on account of swelling on face, so he returned to the police station; that on 29.6.2012 the complainant Nafis Ahmed recovered from injuries and at the instance of complainant he prepared site plan Ex. PW 5/A and recorded statement of complainant Nafis Ahmed; that vide memos Ex. PW 5/B and Ex. PW 5/C he formally arrested the accused persons and filed charge sheet.
State vs. Firoz etc. SC No. 92/14 Page 9 of 32 Pages (10) 11.2. In his cross examination, PW 5 stated that investigation of this case was assigned to him at about 5:15pm; that the documents handed over to him by HC Saifuddin was only the MLC of the injured; that he did not record statement of the person who had taken the injured to the hospital and did not even try to ascertain the relationship between that person and the injured; that the said person who took the injured to the hospital could not be traced out, though he made inquiries in that regard from the injured as well as in the hospital, however regarding those inquiries he did not record statement of anyone and did not mention about the same in the case diary; that it is the injured only who had initially refused to give statement on account of swollen face but he did not record any such statement of the injured ever that statement could not be given by injured earlier due to swollen face; that he had read the MLC after receiving the same from HC Saifuddin and had noticed that doctor had declared the injured fit for statement (PW 5 retracted this part of statement and stated that he did not read the endorsement 'fit for statement' on MLC); that upon receiving the MLC he also did not make State vs. Firoz etc. SC No. 92/14 Page 10 of 32 Pages (11) any request to the doctor seeking permission to record statement of the injured; that he did not visit AIIMS; that premises No. C81 referred to in rukka as the place in front of which the alleged incident took place was not depicted by him in the site plan; that he did not record statement of any of the residents of the locality where the alleged incident occurred; that he did not seize clothes of the injured; that he did not record any statement of the accused persons, though he had made inquiries from them but he could not tell the reason for having not recorded any statement of the accused persons; that the danda allegedly used in the offence was not recovered; that he did not know the meaning of the expression 'report of radiologist', though he knew the meaning of xray films; that he did not try to obtain xray films of the injured from Alshifa hospital as he was not aware that injured had undertaken xray also; that he had read the MLC describing the nature of injuries as grievous but for investigating officer it is not necessary to obtain xray films even in case of grievous hurt; that statement of injured was not recorded by him; that he did not carry out any investigation as regards referral of the State vs. Firoz etc. SC No. 92/14 Page 11 of 32 Pages (12) injured by Alshifa hospital to some higher centre; that he did not obtain any opinion of the doctor as regards the weapon allegedly used; that he did not examine Shiv Singh named in DD No. 22A. PW 5 denied the defence suggestions that he did not investigate the case properly and had implicated the accused falsely.
12. I have heard Sh. R.K. Gurjar, Additional Public Prosecutor for State and Sh. Abdul Sattar, counsel for accused, who took me through records.
13. Learned Additional Public Prosecutor contended that prosecution has proved its case beyond reasonable doubt by way of testimony of injured PW3, duly corroborated by the medical evidence. Learned Prosecutor contended that prosecution has successfully established the motive behind the assault, which was a quarrel that took place between the injured and the accused persons 23 days prior to the date of occurrence. It was argued by the learned Prosecutor that even in cross examination, the injured was given two suggestions which are self inculpatory and establish case of the prosecution. It was also contended State vs. Firoz etc. SC No. 92/14 Page 12 of 32 Pages (13) that the defence of self inflicted injury or fall was not proved by the accused persons by leading evidence. It was contended by learned Prosecutor that nothing could be elicited by the defence side in cross examination of any of the prosecution witnesses and the accused also did not lead any evidence in his defence.
14. Learned defence counsel took me through entire record and pointed out that there is an unexplained delay in registration of FIR, which raises serious questions about truthfulness of prosecution case. It was argued that as per DD No. 22A lodged by Shiv Singh, the spot of occurrence was Emergency of a hospital in Abul Fazal Enclave but Shiv Singh was not examined by the IO. It was also argued that even Gafeer, who allegedly took the injured to the hospital was not examined by the IO. Learned defence counsel also argued that even the MLC Ex.PW4/A does not corroborate the version of the injured in the sense that the MLC does not reflect any head injury and the injury on eye brow shown in the MLC finds no mention in the statement of the injured and at trauma center no MLC was prepared. Even the danda, allegedly used in the assault was State vs. Firoz etc. SC No. 92/14 Page 13 of 32 Pages (14) not recovered which also raises serious doubts about truthfulness of prosecution case as per learned defence counsel. Learned defence counsel placed reliance on the judgments of the Hon'ble Supreme Court in the cases of Devinder vs State of Haryana, 1996(6) Supreme 771 and Rehmat vs State of Haryana, 1996(3) Crimes 238 SC in support of his contentions that failure of the injured to disclose names of the assailants to the doctor who prepared MLC and failure of the IO to send special report to the area magistrate are fatal to prosecution.
15. Section 308 IPC, with which the accused has been charged lays down that whoever does any act with such intention or knowledge and under such circumstances that if he by that act caused death, he would be guilty of culpable homicide not amounting to murder, shall be punished with imprisonment of either description for a term which may extend to three years or with fine or with both; and if hurt is caused to any person by such act, shall be punished with imprisonment of either description for a term which may extend to seven years or with fine or with both. The offence of culpable homicide is defined under Section 299 State vs. Firoz etc. SC No. 92/14 Page 14 of 32 Pages (15) IPC, laying down that whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide.
16. As reflected above, there is no doubt that the investigation in the present case was done in extremely shoddy manner. But merely because the investigating officer did not perform his duty properly, it does not mean that the accused persons deserve to be acquitted. It is the overall evidence available on record that has to be analyzed by the court while arriving at the final conclusion as regards conviction or acquittal.
17. As mentioned above, the danda allegedly used in the offence was not recovered by the investigating officer. It is not just failure to recover danda, rather as per record, the IO did not even make any effort at all to recover the danda used in the offence. In his cross examination as PW5, IO SI Shiv Kumar specifically stated that after arrest of the accused persons, he did not interrogate them and did not record any statement of either of the accused persons. Not only this even when called State vs. Firoz etc. SC No. 92/14 Page 15 of 32 Pages (16) upon in cross examination to explain as to why he did not record the statements of accused persons, the IO stated that he could not give any reason for this failure. Thus, it is not that the weapon of the alleged offence was destroyed or that the accused concealed the same; it is that the IO, for no reason, opted not to interrogate the accused persons at all. In view of defence suggested in cross examination of the injured that the injury was due to fall, had the danda been recovered, the same could have been shown to the doctor for opinion connecting the injury with the offence alleged. Therefore, in this case, nonrecovery of weapon of offence in itself is a very strong factor against the prosecution.
18. Even the description of the danda allegedly used in the offence was not given by the injured Nafees Ahmad to the IO or during trial in his testimony. Since danda was not even recovered during investigation, there was also no question of the same being shown to the doctor to take his opinion as to whether the injury found on Nafees Ahmad was possible with the said danda or not and this in itself is fatal to prosecution.
State vs. Firoz etc. SC No. 92/14 Page 16 of 32 Pages (17)
19. In the case of Ishwar Singh vs State of UP, AIR 1976 SC 2423, quoted in the case of Nahar Singh vs State of Punjab, 1990(2) CC Cases 119 HC, it was held that it is the duty of the prosecution to see that the alleged weapon of offence is shown to the medical witness and his opinion invited as to whether all or any of the injuries on the victim could be caused with that weapon and failure to do so may cause aberration in the course of justice.
20. Another very vital piece of evidence in this case would have been the blood stained clothes of the injured, but the IO failed to take into possession the same, for which no explanation came forward. As specifically mentioned by the injured Nafees Ahmad in his testimony as PW3 that in the course of assault, his clothes got stained with blood but the IO did not direct injured Nafees Ahmad to hand over the said clothes to him. In the case of the present nature, failure to seize the blood stained clothes acquires significance in view of failure of the IO to recover even the weapon of offence, the danda used in the offence as alleged by the injured, in the backdrop of specific stand taken by the accused persons State vs. Firoz etc. SC No. 92/14 Page 17 of 32 Pages (18) as their defence that the injuries allegedly suffered by Nafees Ahmad were either self inflicted or were caused due to fall.
21. Reading the entire evidence on record, the material adduced on behalf of prosecution to bring home conviction is solely in the form of testimony of the injured Nafees Ahmad coupled with the medical evidence in the form of his MLC Ex.PW4/A prepared at Alshifa Hospital. While analyzing this piece of evidence, the court has also to be conscious as regards the delay in registration of the FIR.
22. The MLC Ex. PW4/A of the injured Nafees Ahmad prepared at Alshifa Hospital would reflect that the injured was brought to the hospital by one Gafeer Ahmed at 11:50am on 26.06.2012 whereafter at 11:55am on the same day the injured was medically examined and the injuries recorded in the MLC are only a CLW on right eyebrow with bleeding from left ear. Except one CLW on right eyebrow and ear bleed, no other injury was found by the examining doctor of Alshifa Hospital. But the nature of injuries has been opined to be grievous on the MLC, for which there is no reason assigned at all.
State vs. Firoz etc. SC No. 92/14 Page 18 of 32 Pages
(19)
23. Further, the
injured PW3 in his chief examination stated that he was assaulted on his "head" with the danda and suffered "head injury"; but as mentioned above, the MLC Ex. PW4/A prepared at Alshifa Hospital does not record any head injury; the injury reflected in MLC is not on the head of Nafees Ahmad but on his right eyebrow. It could be argued that the injured would have named the ear bleed and/or injury on eyebrow also as a head injury. But this aspect stands clarified in the cross examination of PW3, where he stated that the injuries suffered by him were bleeding from ear, injury on right eyebrow, head injury and injury on shoulders as well, which goes to show that injured Nafees Ahmad was conscious about the difference between injury on right eyebrow and/or ear bleed and the head injury.
24. Going a step further, as reflected from the MLC of Alshifa Hospital, the injured was directed to be taken to some higher center to treat ENT bleed. As per injured as well as according to the statement of the investigating officer, the injured was taken to AIIMS trauma center.
State vs. Firoz etc. SC No. 92/14 Page 19 of 32 Pages (20) As per accused, according to the defence suggestions, the injured was never taken to trauma center. Prosecution has failed to prove on record any material to show that the injured was taken to trauma center, AIIMS for further management of the ENT bleed. However, I find placed on record an OPD note purportedly of injured Nafees Ahmad prepared by AIIMS trauma center. This OPD document ought to have been proved by prosecution by summoning the concerned doctor but the same was not done. Despite such a failure on the part of prosecution, in order to ascertain the truth, I have examined the said medical OPD document of AIIMS trauma center. The said OPD document reflects only "minor head injury" as the only injury found on the injured Nafees Ahmad.
25. In other words, as per chief examination of the injured Nafees Ahmad, he received one danda blow on head; as per cross examination of the injured Nafees Ahmad, he received injury due to which there was bleeding of ear and injury on his right eyebrow and head injury and injuries on shoulder; as per MLC Ex.PW4/A prepared at Alshifa Hospital, the injuries found on the injured Nafees Ahmad were ear bleed State vs. Firoz etc. SC No. 92/14 Page 20 of 32 Pages (21) and CLW on right eyebrow; as per the unproved OPD record of AIIMS, the injury found on the injured Nafees Ahmad was "minor head injury". Thence, there is no clarity as regards the exact nature of injuries suffered by injured Nafees Ahmad and on account of such hazy evidence pertaining to the injuries, failure of the IO to seize the danda which is alleged to be the weapon of offence and failure to seize the blood stained clothes become significant and generate doubts.
26. Prosecution has also failed to explain with the help of cogent evidence the delay in recording the statement of injured Nafees Ahmad. As mentioned above, injured Nafees Ahmad was declared fit for statement at Alshifa Hospital at 11:55 am itself on 26.06.2012 but his statement was recorded by HC Sheikh Saifuddin much belatedly 04:10 pm on 26.06.2012. It is not that HC Sheikh Saifuddin did not even visit Alshifa Hospital. As per the testimony of HC Sheikh Saifuddin as PW2, he had visited the Alshifa Hospital upon receipt of DD No. 21A and DD No. 22A. HC Sheikh Saifuddin in his testimony as PW2 stated that upon receipt of DD No. 21A and DD No. 22A, he reached Alshifa Hospital and collected MLC of State vs. Firoz etc. SC No. 92/14 Page 21 of 32 Pages (22) Nafees Ahmad but he found Nafees Ahmad in pain and not in a position to give statement. In other words, HC Saifuddin met the injured Nafees Ahmad in the Alshifa Hospital and found him not in a position to give statement. But contrary to this version of PW 2, HC Saifuddin, PW 3 injured Nafees Ahmad in his cross examination stated that for the first time police met him in him in trauma center, AIIMS. According to PW3 Nafees Ahmad till evening of 26.06.2012, he was unconscious and he regained consciousness in the trauma center only. This discrepancy is quite significant keeping in mind that there is no independent and proved record to reflect that either the injured PW3 Nafees Ahmad or the police official PW2 HC Saifuddin had ever visited trauma center AIIMS. As mentioned above neither any MLC of AIIMS was obtained by the IO nor the OPD document has been proved on record by prosecution.
27. In the case of Thulia Kali vs State of Tamil Nadu, AIR 1973 SC 501, the Hon'ble Supreme Court held that FIR in a criminal case is an extremely vital piece of evidence for the purposes of corroborating the evidence adduced at the trial and delay in lodging FIR quite often State vs. Firoz etc. SC No. 92/14 Page 22 of 32 Pages (23) results in embellishment which is a creature of after thought.
28. Not only this, there is nothing on record to show that once the doctor of Alshifa Hospital declared Nafees Ahmad fit for statement at 11:55 am and HC Saifuddin met the injured at Alshifa Hospital by about 12:30 pm and found the injured not in a position to give statement, what further action did HC Saifuddin take by seeking a further opinion of the doctor as to whether the injured was genuinely unable to give statement or was simply gaining time to fabricate a story. At the same time, once the Alshifa Hospital declared the injured fit for statement at 11:55am but by 12:30pm HC Sheikh Saifuddin found the injured not in a position to give statement, thereafter, when he visited AIIMS trauma center (going by his version), it remains unexplained as to why he did not obtain separate MLC of the injured from trauma center and did not seek opinion of the doctor as to whether this time the injured was fit to give statement or not. In other words, when the hospital declared the injured fit for statement, no statement was recorded and subsequently when the statement was recorded, there was nothing on record to show that the State vs. Firoz etc. SC No. 92/14 Page 23 of 32 Pages (24) injured was fit. Of course, it needs to be clarified that merely because fitness was not obtained before recording statement at 4:10pm, the statement cannot be discarded, but this circumstance gains significance in view of the fact that despite Alshifa doctor having declared the injured fit for statement, the statement was not recorded immediately for which there is no explanation except a bald statement of the injured and HC Saifuddin that the injured was in pain.
29. Another vital evidence which the investigation officer ought to have look into is the statement of Gafeer who allegedly took the injured Nafees Ahmad to Alshifa Hospital. As per injured PW3 Nafees Ahmed, he was taken to Alshifa Hospital on a motorcycle with one person sitting behind him to hold him, but Nafees Ahmad did not know name of the said third person. In this regard, statement of Gafeer was very significant since as per the injured Nafees Ahmad, after the alleged assault he became unconscious and regained consciousness only after he reached the trauma center, AIIMS. Therefore, going by the statement of the injured Nafees Ahmad, his personal particulars and particulars of alleged history State vs. Firoz etc. SC No. 92/14 Page 24 of 32 Pages (25) etc. were given to the doctor at Alshifa Hospital by Gafeer only. The investigating officer in his testimony as PW5 stated that Gafeer could not be traced out by him, whereas according to PW3 Nafees Ahmad, all of them namely the accused persons, Gafeer as well as the injured himself were residing in the same area. Non examination of Gafeer, therefore, is an important factor which goes against the prosecution and raises doubts.
30. It would also be extremely significant to notice that as per MLC Ex.PW4/A prepared at Alshifa Hospital, at the time of his examination at 11:55 am, the injured Nafees Ahmad had normal blood pressure, normal pulse and he was conscious as well as oriented. It is apparently in view of these findings that the doctor declared Nafees Ahmad fit for statement. The very statement of Nafees Ahmad that he regained consciousness only on the evening of the 26.06.2012 when he had already arrived at AIIMS trauma center stands totally belied by the finding recorded in MLC Ex. PW4/A of Alshifa Hospital to the effect that he was conscious and oriented at 11:55 am.
31. I am in complete agreement with learned defence counsel in State vs. Firoz etc. SC No. 92/14 Page 25 of 32 Pages (26) view of the judgments cited by him as above that failure of the injured PW 3 Nafees Ahmed and Gafeer to name the accused persons as assailants in the MLC raises strong suspicion that the injuries were not caused by the accused persons. As laid down by the Hon'ble Supreme Court in the case of Devender (supra) and Rehmat (supra), it is expected that the injured at the very first possible opportunity must disclose names of the assailants who allegedly caused injuries. As reflected from MLC of Alshifa Hospital, the alleged history was recorded as "assault". This alleged history of assault would have been given to the doctor either by injured Nafees Ahmad himself or by Gafeer who took the injured to the hospital. It is also specifically stated by the injured PW3 in his testimony that Gaffir being a neighbour also knew the accused persons. Therefore, at the very first possible opportunity the injured Nafees Ahmad, or, if he was unconscious, by Gafeer, the accused persons should have been named in the MLC itself as the assailants and failure to do so, going by the law cited above creates suspicion that complicity of accused persons in the case came up after due deliberations.
State vs. Firoz etc. SC No. 92/14 Page 26 of 32 Pages (27)
32. In the case of Kanhai Mishra @ Kanhayya Mishra vs State of Bihar, 2001 (2) JCC 5 SC, the Hon'ble Supreme Court observed that as reflected from the factual matrix of the said case, the witness have arrived at police station at about 09:00 O'clock but his statement was not recorded immediately at that time; the statement was recorded after about 2 hours at 11:00 O'clock; this as per the Hon'ble Supreme Court would show that by the time the informant was at the police station, he did not suspect complicity of the appellant with the crime and subsequently as per due deliberations, fard bayan (first information) was given by the informant at his house; the Hon'ble Supreme Court held that the evidence of such witness makes prosecution case showing complicity of the appellant with the crime doubtful. Similarly, in the present case also, at 11:55am when the injured Nafees Ahmad was examined at Alshifa Hospital, the cause of injuries was stated to be "assault" but the accused persons were not named; the accused persons came to be named as assailants for the first time in the statement of Nafees Ahmad recorded much later in the evening, which creates doubts as regards truthfulness State vs. Firoz etc. SC No. 92/14 Page 27 of 32 Pages (28) pertaining to the complicity of the accused persons in this case.
33. As in the case of Devender (supra), in the present case also, there is absolutely no evidence adduced by the prosecution that special report in respect of the registration of the FIR of the present case for offence under Section 308 IPC was sent to the area magistrate on that day itself, which also raises suspicion about genuineness of the prosecution case.
34. Then, as regards site plan also, the material on record raises suspicion. As per the investigating officer PW5, site plan Ex.PW5/A was prepared by him at the instance of the injured on 29.06.2012. But the site plan reflects tampering in the date from 26.06.2012 to 29.06.2012, which tampering/over writing has not been explained by the IO in his testimony. In contrast, as per the injured PW 3, he did not remember if any documentary work was done by the police when he showed the spot of occurrence.
35. Coming to the argument of prosecution that motive stands well established, even as regards the alleged motive, I find it to be State vs. Firoz etc. SC No. 92/14 Page 28 of 32 Pages (29) extremely weak and unbelievable. As explained by PW3 in his testimony, the quarrel which took place between him and the accused persons 23 days prior to the occurrence was that the injured was carrying his child in lap and the accused persons on a motorcycle sped past him on which there was an objection from his side that led to exchange of hot words. As also admitted by PW3 in his testimony, even after the said incident and prior to the alleged offence, he met both the accused persons almost daily but no untoward incident occurred. Under such circumstances, it does not appear believable that after three days the accused persons would assault the injured with danda in the manner described above. In fact, PW 3 Nafees Ahmed himself stated in his cross examination that the earlier incident was not a big incident.
36. Conduct of the IO also deserves to be examined in this case, especially his testimony that having received the Alshifa MLC from HC Saifuddin, he did not notice the endorsement "fit for statement" on the MLC of the injured and rather he did not read the MLC at all as stated by him in his cross examination and he did not make any request to the State vs. Firoz etc. SC No. 92/14 Page 29 of 32 Pages (30) doctor for permission to record statement of the injured. Even in the site plan Ex.PW5/A, admittedly the IO failed to even depict the premises no. C81 in front of which, as per injured the incident had allegedly occurred, though the site plan was prepared by him allegedly at the instance of the injured but the injured does not remember about the same. Most interestingly, despite being an investigating officer of a case allegedly pertaining to an attempt to commit culpable homicide not amounting the murder, the investigating officer in his cross examination stated that he did not know the meaning of the word "radiologist" and as per his knowledge, for investigating officer it is not necessary to obtain xray films even in cases of grievous hurt. Adding to this is his admission of having taken no steps to recover the weapon of offence and blood stained clothes. This reflects the manner in which the investigation was handled by the police and on the basis of such shoddy investigation, it would be extremely unsafe to convict the accused persons.
37. Coming to the argument of the learned Prosecutor that since two of the defence suggestions extended to PW3 in his cross examination State vs. Firoz etc. SC No. 92/14 Page 30 of 32 Pages (31) are self inculpatory, it calls for conviction of the accused, I am unable to agree with this argument. The defence suggestions are at the most a part of the manner of cross examination conducted by the defence counsel and the expressions used by the defence counsel in cross examination cannot be attributed to the accused to such an extent that it is treated as an inculpatory statement of the accused. Moreover, if the said two defence suggestions referred to by the learned Additional Public Prosecutor are looked in conjunction with the previous part of the cross examination, it appears clearly that the inculpatory reference is in the context that as per the witness the particular thing had happened and not an inculpatory statement to the effect that the particular thing had actually happened. This, to my mind cannot attract conviction to the accused.
38. In the case of Tanviben Kumar Divetia vs State of Gujrat, 1997(2) CC Cases 98 SC, the Hon'ble Supreme Court held thus:
"Even if it is assumed that the accused had made false statement when examined under Section 313 of the Code of Criminal Procedure, the law is very settled that the falsity of the defence cannot take the place of proof of facts which the prosecution has to State vs. Firoz etc. SC No. 92/14 Page 31 of 32 Pages (32) establish in order to succeed. A false plea may be considered as an additional circumstance if other circumstances proved and established point out the guilt of the accused."
Accordingly, merely because the accused persons opted not to lead any evidence in their defence, prosecution cannot be absolve its duty to prove the guilt of the accused persons.
39. In view of above discussion, it is held that the evidence adduced on behalf of prosecution is full of unsolved riddles and raises strong doubts as regards truthfulness of prosecution version. The accused persons are entitled to the benefit of doubt. As such, it is held that prosecution has not been able to prove its case beyond reasonable doubts. Consequently, both the accused are held not guilty and are acquitted of the charge framed against them.
40. File be consigned to Record Room.
Announced in the open court (GIRISH KATHPALIA)
on 28.07.2014 ADDITIONAL SESSIONS JUDGE05,
SOUTH EAST, SAKET, NEW DELHI
iu
State vs. Firoz etc. SC No. 92/14 Page 32 of 32 Pages