Delhi District Court
State vs 1. Mohd. Julfikar on 5 December, 2014
IN THE COURT OF SH. SANJAY SHARMA : SPECIAL JUDGE (NDPS) /
ADDL. SESSIONS JUDGE, (NORTH-EAST): KARKARDOOMA COURTS,
DELHI
SC No. : 146(I)/2008
FIR No. : 363/2009
PS : Nand Nagri
Under Section : 308/325/341/506/34 IPC
Case ID : 02402R0147342011
State Versus 1. Mohd. Julfikar
S/o Mohd. Yusuf
R/o H. No. O-275,
Sunder Nagri, Delhi.
2. Tahir Kureshi
S/o Mohd. Salim
R/o H. No. N-134,
Sunder Nagri, Delhi.
3. Shamshad@ Munna Mobile
S/o Mohd. Yusuf
R/o H. No. O-275,
Sunder Nagri, Delhi.
4. Kasim (expired)
S/o Mohd. Salim,
R/o H. No. N-134,
Sunder Nagri, Delhi.
5.
Wasim
S/o Mohd. Salim,
R/o H. No. N-134,
Sunder Nagri, Delhi
Date of Institution : 30.08.2008
Date of reserving order : 20.09.2014
Date of Judgment : 05.12.2014
FIR No.363/2007 State Vs. Julfikar & Ors. Page No. 1/16
JUDGMENT
1. On 30.04.2007 at 06.22 p.m., an information was received in the police station Nand Nagri from HC Jitesh, PCR that my husband has been stabbed at M-134, Sunder Nagri. The said information was entered into rojnamcha register vide DD No. 29-A Ex.PW5/A and assigned to PW-5 SI Mohan Singh for appropriate action.
2. On receipt of DD No.29-A, PW-5 SI Mohan Singh with PW-1 HC Kiran Pal reached near park, DDA Market, Sunder Nagri. On enquiry, he came to know that the persons namely Babloo @ Wasim and Julfikar who were injured in the quarrel were taken to GTB Hospital by their family members. Thereafter, he with PW-1 HC Kiran Pal reached GTB Hospital where he collected MLC of Julfikar and Babloo @ Wasim.
3. On 30.04.2007 at 07.15 p.m., PW-3 Babloo @ Wasim was brought by his wife Smt. Salma to Casualty of GTB Hospital with alleged history of assault. Dr. Pushpender Sharma, Junior Resident examined him. He observed following injuries:
(1) Swelling and tenderness on occipital region, (2) Nasal bleeding, (3) Clear Lacerated Wound (CLW) measuring 0.5 c.m. on sub- mandibular region, (4) Clear Lacerated Wound (CLW) measuring 1 X 0.5 c.m. on left sterno-clavicle region, FIR No.363/2007 State Vs. Julfikar & Ors. Page No. 2/16 (5) Lacerated Wound measuring 1 X 0.5 c.m. and 3 X 1 c.m. on left shoulder, (6) Multiple Lacerated Wound on right shoulder measuring 1 X 0.5 c.m. each, (7) Swelling and tenderness on both foot dorsal.
4. Dr. Pushpender Sharma prepared MLC Ex.PW3/B in respect of PW-3 Wasim @ Babloo. He declared him fit for statement.
5. Dr. R.P. Singh, Senior Resident, Department of Orthopaedics, GTB Hospital examined MLC Ex.PW3/B and X- rays in respect of PW-3 Wasim @ Babloo and noted fracture on right femur and right tibia. He opined that the nature of injury sustained by PW-3 Wasim @ Babloo were grievous.
6. PW-5 SI Mohan Singh recorded statement of PW-3 Wasim @ Babloo and prepared rukka Ex.PW5/B.
7. In his statement Ex.PW3/A, PW-3 Wasim @ Babloo stated as under:
"Statement of Babloo @ Wasim s/o Sh. Mehbub R/o H. No. M-282, Sunder Nagri, Delhi age 32 years.
Stated that I alongwith my family is residing at the aforesaid address. I am doing the work of tailoring. Today, in the morning of 30.04.2007, I had a quarrel with Julfikar who is having a rickshaw garage in front of bus stand no. 331, Toll Tax, Sunder Nagri on the issue of money. I was arrested under section 107/151 Cr.P.C. I was going to my house on foot after alighting from an auto at bus stand no. 331, Toll Tax, Sunder Nagri after getting myself released on bail from the Court of SEM/North-East. When I reached in front of DDA Market Park, at about 06.00 p.m., Julfikar FIR No.363/2007 State Vs. Julfikar & Ors. Page No. 3/16 alongwith few rickshaw pullers was standing in the corner of DDA Market. After seeing me, he stated that have I released on bail. He stated that he will teach me. Then, I stated that what he will teach me. Julfikar was having an iron rod in his hand. He hit iron rod several times at my left leg and temple. I starting running from there to save my life. He caught me. He brought me down. I was beaten with fists and legs. He threatened to kill me and my family. I have threat of life from Julfikar. My wife Smt. Salma got me admitted in the hospital. Legal action be taken against Julfikar. Julfikar attacked me with the intention to kill me."
8. PW-5 SI Mohan Singh handed over rukka to PW-1 HC Kiran Pal at 08.00 p.m. on 30.04.2007 for registration of FIR. On 30.04.2007 at 08.15 p.m., PW-4 ASI Raj Bir Singh registered case FIR No. 363/07 under section 323/308/341/506 IPC at PS Nand Nagri and further investigation was assigned to PW-5 SI Mohan Singh.
9. On receipt of a copy of FIR and original rukka, PW-5 SI Mohan Singh recorded statement of Julfikar and made his endorsement thereon. He brought Julfikar to police station Nand Nagri and handed over the rukka to PW-4 ASI Raj Bir Singh who registered cross-case vide FIR No. 365/2007 under section 323/341/506/34 IPC at 08.00 p.m. on 30.04.2007.
10. During investigation, PW-4 ASI Raj Bir Singh interrogated accused Julfikar and arrested him vide arrest memo Ex.PW1/A and conducted his personal search vide personal memo Ex.PW1/B. He recorded his disclosure statement Ex.PW1/C. FIR No.363/2007 State Vs. Julfikar & Ors. Page No. 4/16
11. PW-5 SI Mohan Singh prepared site plan at the instance of PW-2 Smt. Salma.
12. It will be relevant to take note of statement of PW-2 Smt. Salma recorded on 30.04.2007 which is Ex.PW2/DA:
"Statement of Smt. Salma w/o Sh. Babloo @ Wasim R/o H. No. M-282, Sunder Nagri, Delhi age 30 years.
Stated that I alongwith my family residing at the aforesaid address. I am a housewife, my husband Babloo @ Wasim is doing tailoring work in Gandhi Nagar. Today, in the morning of 30.04.2007, my husband was arrested by police officials of police station Nand Nagri on account of quarrelling with rickshaw pullers of Julfikar Rickshaw garage. In the day, I had gone to the Court of SEM, Seelampur for getting my husband Wasim released on bail. I returned my home. At about 06.00 p.m. - 06.15 p.m., I was preparing meal. My brother-in-law Kasim who is also residing with us came to me. He had hidden injuries. He told me that Julfikar, owner of the rickshaw garage beaten my husband and rendered him unconscious. He was lying in the corner of DDA Market near Park. I immediately reached near DDA Market where my husband Wasim who had injuries on his right leg and temple region was crying with pain. I immediately made a call at 100 number. I started waiting for PCR vehicle. I admitted my husband in GTB Hospital for treatment. My husband Wasim @ Babloo told me that Julfikar, owner of the rickshaw garage and 2-3 rickshaw pullers assaulted him. You have prepared site plan of the place of the incident at my instance. Action be taken against the persons who assaulted my husband Babloo @ Wasim. You have recorded my statement. I have heard it. It is correct."
13. On 11.05.2007, PW-5 SI Mohan Singh met Wasim @ Babloo in ward no. 20 in GTB Hospital. He recorded statement of Wasim @ Babloo which is as under:
FIR No.363/2007 State Vs. Julfikar & Ors. Page No. 5/16"I affirm my previous statement. I state that on 30.04.2007, Julfikar and his three brother-in-laws attacked me in front of DDA Market, M-Block, Sunder Nagri. At that time, I could not state their names as I had take due to injuries and I was not fully conscious. On that day, Julfikar, his brother Munna Mobile and his three brother-in-laws namely Wasim, Tahir and Kamir attacked me with iron rods. One puttam pathani who was working in their garage was also present. I am now giving my statement in full senses. All the said persons caught me near DDA Market, M-Block, Sunder Nagri and attacked me with iron rods with the intention to cause my death. You have taken my second statement in the hospital. Action be taken against all the said persons. I have read the statement. It is correct."
14. On that day, PW-5 SI Mohan Singh recorded supplementary statement of PW-2 Smt. Salma also.
15. During investigation, PW-5 SI Mohan Singh formally arrested accused Tahir, Kasim, Shamshad and Wasim.
16. On completion of investigation, he presented the challan against the accused persons under section 308/325/341/506/34 IPC.
17. On appraisal of material on record, all the accused were charged under section 341/308/325/506/34 IPC.
18. During the course of trial, the accused Kasim expired and proceedings against him were dropped vide order dated 22.02.2011.
FIR No.363/2007 State Vs. Julfikar & Ors. Page No. 6/1619. The prosecution examined 7 witnesses, as under:
Name of the witnesses Description of the witnesses PW-1 HC Kiran Pal Accompanied IO SI Mohan Singh PW-2 Smt. Salma Wife of the injured/complainant PW-3 Wasim @ Babloo Injured/complainant PW-4 SI Rajbir Singh Duty Officer PW-5 Insp. Mohan Singh Investigating Officer PW-6 Dr. Ravinder Singh Proved MLC Ex.PW3/B PW-7 Dr. Ashish Rustagi Proved opinion by Dr. R.P. Singh
20. On completion of the prosecution evidence, the material circumstances appearing in evidence against the accused persons were put under section 313 Cr.P.C.
21. According to the accused Julfikar, on 30.04.2007 at about 6.00 p.m., complainant came to his rickshaw garage, after his release in case under section 107/151 Cr.P.C. and threatened him and given a blow with a broken rickshaw frame, on his left hand and his brother Kasim caught hold of him. In the meantime, his rickshaw puller came there and saved him. He stated that due to blow by complainant, he sustained grievous injuries on his left hand and doctors of GTB Hospital operated his left hand and fixed a steel rod and prepared his MLC. He stated that police station Nand Nagri registered a case against him and his brother Kasim vide FIR No. 365/07 under section 341/325/506/34 IPC which is pending before this Court. He pleaded innocence and claimed false implication.
FIR No.363/2007 State Vs. Julfikar & Ors. Page No. 7/1622. According to the accused Shamshad and Wasim, on 30.04.2007, they were not present at the spot. They had not given any beatings to the complainant. On that day, they were in Pahar Ganj, Delhi. They are relatives of Julfikar and for that reason, the complainant has falsely implicated them in the case.
23. According to the accused Tahir Kureshi, on 30.04.2007, he was not present at the spot. On that day, he was present in Rewari, Rajasthan.
24. The defence has examined 4 witnesses namely DW-1 Furkan, DW-2 Ms. Pooja, DW-3 Mohd. Arif and the accused Julfikar examined himself as DW-4.
25. According to DW-1 Furkan, on 30.04.2007 at about 6.00 p.m., Babloo alongwith his brother Kasim came at rickshaw garage of Julfikar and started abusing him and threatened him to get him arrested again. Julfikar asked him to move out from there. Kasim caught Julfikar and Wasim hit Julfikar on his left hand with a rickshaw frame. In the meantime, 10-12 rickshaw pullers gathered there and a quarrel had taken place between Wasim, Kasim and rickshaw pullers. They had taken Julfikar to GTB Hospital. Accused Tahir Kureshi, Shamshad, Kasim and Wasim were not present there.
26. DW-2 Ms. Pooja stated that on 30.04.2007 at 6.00 p.m., at rickshaw garage of Julfikar at Wazirabad Road, opp. Sunder Nagri, Wasim and Kasim came there. They started abusing Julfikar by saying that 'get them detained again'.
FIR No.363/2007 State Vs. Julfikar & Ors. Page No. 8/1627. DW-2 Ms. Pooja further stated that Julfikar stated them that they had come with the intention to quarrel and asked them to move out. Wasim @ Babloo hit rickshaw handle on the left hand of Julfikar. Many people gathered there and Wasim fell down and sustained injuries. No other accused person present in the Court was present except Julfikar at the spot at that time.
28. DW-3 Mohd. Arif also stated to the same effect.
29. DW-4 Julfikar stated that Wasim came to his garage and quarrelled with him and his rickshaw puller namely Rambir and a kalandara under section 107/151 Cr.P.C. vide DD No. 14- B dated 30.04.2007 was prepared by police station Nand Nagri. He placed on record copy of challan of cross-case vide FIR No. 365/07, MLC No. A-1909/07 dated 30.04.2007 and medical papers and a copy of kalandara which are Mark A to Mark C.
30. I have heard Ms. Anupama, Special Addl. PP for the State and Sh. Anupam Sharma, Advocate for the accused Julfikar and Sh. Narveer Dabas, Advocate for the accused Tahir, Shamshad and Wasim and considered the evidence, oral and documentary, on record.
31. Ms. Anupama Sharma, Special Addl. PP for the State submitted that PW-3 Wasim @ Babloo is the injured. She submitted that he is the complainant of the case. She submitted that PW-3 Wasim @ Babloo in his depositions proved that Julfikar hit him with an iron rod on his leg and accused Wasim, Shamshad, Tahir Kureshi and Kasim gave beatings to him.
FIR No.363/2007 State Vs. Julfikar & Ors. Page No. 9/1632. Ms. Anupama Sharma, Special Addl. PP for the State further submitted that injuries on the person as noted in MLC Ex.PW3/B corroborates the version of PW-3 Wasim @ Babloo. She submitted that the nature of injuries suffered by PW-3 Wasim @ Babloo were fatal. She submitted that PW-3 Wasim @ Babloo suffered fracture in right femur and tibia bone. She submitted that the defence could not elicit anything from the cross-examination of PW-3 Wasim @ Babloo. She submitted that PW-2 Smt. Salma called the police and pursuant to which DD No. 29-A Ex.PW5/A was recorded at 6.22 p.m. on 30.04.2007. She submitted that accused persons are liable to be held guilty for committing offence under section 341/308/325/506/34 IPC.
33. Sh. Anupam Sharma, Ld. defence counsel submitted that PW-2 Smt. Salma and PW-3 Wasim @ Babloo are not reliable witnesses. He submitted that they are interested witnesses and they were inimical against the accused persons. He submitted that PW-2 Smt. Salma and PW-2 Wasim @ Babloo concealed true facts from the Court and improved their version from time to time. He has taken the Court through the entire evidence. He submitted that the prosecution has not explained the grievous injuries on left hand by the accused Julfikar. He submitted that the site plan prepared by SI Mohan Singh has not been proved. The prosecution has not been able to prove its case and the accused Julfikar deserves acquittal.
FIR No.363/2007 State Vs. Julfikar & Ors. Page No. 10/1634. Sh. Narveer Dabas, Advocate for accused Tahir Kureshi, Shamshad @ Munna Mobile and Wasim submitted that the said accused persons were not named in the FIR. He submitted that they were falsely implicated later on. He submitted that no role has been assigned to the accused Tahir in the depositions of PW-3 Wasim @ Babloo.
35. I have carefully examined the prosecution evidence.
36. PW-3 Wasim @ Babloo is the complainant of the case. He is also an injured. He is the star witness of the prosecution. However, a careful reading of his depositions in the light of evidence on record, it is evident that he has not given true account of the genesis of the incident, manner of the incident and the persons involved in the incident.
37. PW-3 Wasim @ Babloo in his statement Ex.PW3/A stated that in the morning of 30.04.2007, he was arrested under section 107/151 Cr.P.C. as he had a quarrel with the accused Julfikar on the issue of money. However, in his depositions, he stated that on 29.04.2007 at about 7.00 p.m.-7.15 p.m., some rickshaw pullers were bathing at the government water tank and therefore, he had gone to the garage of the accused Julfikar where division officer and some other police officials were present and the accused Julfikar started abusing and quarrelling with him. He stated that on 30.04.2007 at about 7.30 a.m., he was called by PCR and was taken to local police station where he was booked under section 107/151 Cr.P.C.
FIR No.363/2007 State Vs. Julfikar & Ors. Page No. 11/1638. PW-2 Smt. Salma, wife of complainant Wasim @ Babloo stated in her statement Ex.PW2/DA that in the morning of 30.04.2007, his husband was arrested by police officials from police station Nand Nagri as he quarrelled with rickshaw pullers of the rickshaw garage of the accused Julfikar. However, in her depositions, she stated that in the morning of 30.04.2007, the accused persons started abusing them from outside the gate of their house and at that time, her husband was not at home. She stated that somebody called the police and thereafter, her husband was also called and all the accused persons and her husband were taken to police station and booked under section 107/151 Cr.P.C.
39. It is therefore, clear that PW-2 Smt. Salma and PW-3 Wasim @ Babloo have given four different reasons for registration of kalandara under section 107/151 Cr.P.C. In his statement Ex.PW3/A, PW-3 Wasim @ Babloo stated that he had quarrelled with accused Julfikar on account of money. In his depositions, PW-3 Wasim @ Babloo stated that he was called by the PCR police since he had some issue with rickshaw pullers on the preceding day. PW-2 Smt. Salma in her statement Ex.PW2/DA stated that in the morning of 30.04.2007, her husband had a quarrelled with rickshaw pullers of the rickshaw garage of accused Julfikar. In her depositions, PW-2 Smt. Salma stated that the accused persons visited her house in the absence of her husband and abused them.
FIR No.363/2007 State Vs. Julfikar & Ors. Page No. 12/1640. PW-3 Wasim @ Babloo in his statement Ex.PW3/A stated that he had alighted from an auto near Bus Stand No. 331, Near Toll Tax and was going to his house on foot and when he reached in front of DDA Market Park, Julfikar and some rickshaw pullers were standing there and after some exchange of words, Juflikar hit his right leg and temple with an iron rod several times. However, in his depositions, he stated that at about 4.00 p.m.-4.30 p.m., he was released on bail by the office of SEM and he alongwith his wife were returning to their home and his wife asked him to bring medicines and she went to the house. It is therefore, apparent that in his statement Ex.PW3/A, he has not stated anything about presence of his wife with him when he was returning home after getting the bail from the Court of SEM. PW-2 Smt. Salma in her statement Ex.PW2/DA stated that at about 6.00 p.m. -6.15 p.m., she was preparing meal in her house. In her statement, she has also not stated that she was accompanying her husband at that time and asked him to bring medicines and she reached home alone.
41. In his statement Ex.PW3/A, PW-3 Wasim @ Babloo has not attributed any role to the accused Tahir, Shamshad, Kasim and Wasim. He has not stated anything about their presence at the spot at the time of the incident. In his depositions, PW-3 Wasim @ Babloo also not stated anything regarding his presence at the time of incident and role of the accused Tahir in the incident in question.
FIR No.363/2007 State Vs. Julfikar & Ors. Page No. 13/1642. In his statement Ex.PW3/A, PW-3 Wasim @ Babloo stated that at about 6.00 p.m., Julfikar with few rickshaw puller was standing in the corner of DDA Market and after seeing him, he stated that it did not matter if he was released on bail and he would teach him know and thereafter, PW-3 Wasim stated that what he will teach him and Julfikar was having an iron rod with him who hit his right leg, hand and temple with the said rod several times without any reason. It is therefore, clear that no role was attributed to the accused Tahir Kureshi, Shamshad, Kasim and Wasim. He has not even mentioned that any relative of the accused was present at that time. He has merely mentioned the presence of few rickshaw pullers at that time.
43. In his supplementary statement, PW-3 Wasim @ Babloo improved his version and brought the accused Tahir Kureshi, Shamshad, Kasim and Wasim into the picture.
44. In his depositions, PW-3 Wasim @ Babloo has stated as under:
"When I reached DDA Market, in front of M Block, Sunder Nagri, the accused Wasim, Kamil, Kasim, Julfikar, Kuttam Pathani, Munna Mobile and two other relatives of Julfikar, were present there. The accused Julfikar immediately, hit me with an iron rod on my leg. When I fell down, all the accused persons attacked me and gave beatings to me. Accused Kasim was having a Talwar (Sword), Munna Mobile was having a knife and Kuttam Pathani and one relative of accused Julfikar were having iron rods with them. I suffered injuries on my legs, my right hand and my mouth. Thereafter, I became unconscious. I regained consciousness in the hospital on the next day. Police FIR No.363/2007 State Vs. Julfikar & Ors. Page No. 14/16 recorded my statement, which is Ex.PW3/A, which bears my signatures at point A. I was medically examined vide MLC Ex.PW3/B, which bears my thumb impression at point A."
45. It is therefore, clear that according to PW-3 Wasim @ Babloo, he was hit several times by the accused Julfikar with an iron rod on his temple, legs and hand whereas MLC Ex.PW3/B merely shows existence of swelling and tenderness on occipital region and lacerated wounds on back, shoulder and face etc. the injuries does not show that he was hit several times with the iron rod.
46. According to PW-3 Wasim @ Babloo, he became unconscious and regained consciousness in the hospital on the next day whereas MLC Ex.PW3/B records that at the time of his admission in the hospital at 7.15 p.m., he was fit for statement and his statement was recorded by PW-5 SI Mohan Singh on or before 8.00 p.m. He deposed falsely that he regained consciousness in the hospital on the next day.
47. PW-2 Smt. Salma stated in her depositions that someone from the neighbourhood told her that the accused persons killed her husband. In her statement Ex.PW2/DA, she stated that her brother-in-law Kasim came to her and stated that Wasim @ Babloo was rendered unconscious by the rickshaw pullers of the Julfikar and he had some hidden injuries at that time. In her depositions, she stated that the accused persons came to her house in search of Kasim but he was not in home.
FIR No.363/2007 State Vs. Julfikar & Ors. Page No. 15/1648. There is no site plan. The place of the incident is also just near the garage of the Julfikar. The place of incident was the corner of DDA Market in front of M-Block, Sunder Nagri. PW-3 Wasim @ Babloo in his depositions stated that garage of the accused Julfikar is situated in front of his house near the sulabh shauchalya. It appear that the place of the incident was either the garage of the accused Julfikar or any place just near his garage.
49. In view of depositions of DW-1 Furkan, DW-2 Ms. Pooja and DW-3 Mohd. Arif, this Court is convinced that the complainant Wasim and his brother reached at the garage of the accused Julfikar where they had some exchange of hot words and a quarrel ensued between them. In the free fight, PW-3 Wasim @ Babloo and his brother Kasim were beaten by Julfikar and his rickshaw pullers. This Court is convinced that PW-3 Wasim @ Babloo suffered injuries in the free fight taken place in the garage or at any place near the garage.
50. Accused Julfikar, Tahir Kureshi, Shamshad and Wasim are hereby acquitted from offences under section 308/325/341/506/34 IPC.
Announced in the open court SANJAY SHARMA
th
on this 05 day of December, 2014. Special Judge NDPS (N-E) ASJ:KKD Courts, Delhi.
FIR No.363/2007 State Vs. Julfikar & Ors. Page No. 16/16