Delhi District Court
Fir No.13/11, P.S Seelam Pur, St. vs Rijwan @ Raja on 8 September, 2011
1
FIR NO.13/11, P.S SEELAM PUR, ST. VS RIJWAN @ RAJA
IN THE COURT OF SH. B.S. CHUMBAK, ADDITIONAL SESSIONS
JUDGE-3 /NORTH EAST DISTT./ KKD COURTS / DELHI
Case ID Number 02402R0084842011
Session Case No. 14/11
Assigned to Sessions 03/05/11
Arguments heard on 07/09/11
Date of order 08/09/11
FIR NO. 13/11
Police Station SEELAM PUR
Under Section HELD GUILTY U/S 323/324 IPC
Out come of the judgment CONVICTED
STATE VS. RIZWAN @ RAJA
S/O AFJAAL
R/O BHOODH MOHALLA,
BHOODH CHORAHE KE PAAS,
BULAND SHAHAR, UP
PR : Sh. S.K. Dass, Ld. Addl. PP for the state.
Sh. Dassa Ram amicus curiae on behalf of accused.
JUDGMENT
1. On 15.01.11 a case u/s 327/379/34 IPC was registered at PS Seelam Pur vide FIR NO. 13/11 on the basis of statement made by Rashid Ali s/o Fayaz Ali r/o Ward no.10, Kathera Road, Daulat Ram Market, Pandito ka Gher, Dadri, Gautam Budh Nagar, UP against unknown person.
2. Brief facts arising out of this case are that on 14.01.11 at about 1/22 2 FIR NO.13/11, P.S SEELAM PUR, ST. VS RIJWAN @ RAJA 9:36 p.m on receipt of information vide DD no.12 A ASI Chanchal Kumar alongwith Ct. Mohd. Faizal reached at the spot i.e near Primary School, Gurudwara Road, Seelam Pur. On reaching there they came to know that both the injured and the accused who had received injuries due to beating caused by public person have already been taken to GTB hospital by PCR van. They both reached at GTB hospital and obtained the MLC bearing no. B- 211/11 of injured Nadeem s/o Mohd. Saleem, MLC no. B-212/11 of injured Rashid Ali s/o Faiyaz and MLC no. C-169/11 of unknown person. Both the injured namely Nadeem and Rashid were declared fit for statement and their nature of injuries were kept under observation. Statement of injured Rashid Ali s/o Faizal Ali was recorded wherein he stated as under :
"On 14.1.11 at about 9 p.m he alongwith his brother in law Nadeem s/o Saleem had gone to market i.e Gurudwara Road, near Primary School for purchasing shoes. In the meantime three/four young boys reached there and started quarreling with him. One boy among them landed a sharp object blow on the face of his brother in law Nadeem and due to that he received injuries. They all started quarreling with him and also landed an iron rod blow on his right hand. One boy among them removed his purse containing Rs.20,000/- from the back side pocket of his pant, thereafter they run away from the spot. They raised alarm. While running one boy among them hit with a tempo and fell down. Public persons caught hold him and beaten him due to that he became 2/22 3 FIR NO.13/11, P.S SEELAM PUR, ST. VS RIJWAN @ RAJA unconscious and remaining persons succeeded in fleeing away from the spot. Someone informed the PCR. PCR reached at the spot and took him, his brother in law Nadeem and accused who had received injuries in the hands of public persons to GTB hospital. He can identify the boy who had removed Rs.20,000/- from the possession of Nadeem if shown to him."
3. After registration of the case investigations were initiated. Name of accused who received injuries in the hands of public persons revealed as Rizwan @ Raza s/o Afzaal r/o Bhoodh Mohalla, Bhoodh Chorahe Ke Paas, Buland Seher, UP. Site plan was prepared at the instance of complainant. His supplementary statement was recorded. Accused Rizwan @ Raza was arrested after his discharge from the hospital. His disclosure statement was recorded wherein he disclosed the whereabouts of other accused persons but none of them could be arrested at his instance. Knife/ustra allegedly used in causing injury could not be recovered at the instance of accused Rizwan. During the course of investigation and on the basis of advise of senior officers section 392/397 IPC were added in place of 327/379 IPC. Nature of injuries on the MLC's of Rashid and Nadeem were obtained wherein it was opined as simple. Remaining accused could not be arrested. After completion of all the necessary investigation challan u/s 392/397 IPC was presented only against the accused Rizwan in the court of Ld. MM.
3/22 4FIR NO.13/11, P.S SEELAM PUR, ST. VS RIJWAN @ RAJA
4. Ld. MM after taking cognizance of the offence u/s 392/397/34 IPC, supplied the copies of the challan to the accused as provided u/s 207 Cr.P.C and committed the case to the court of Sessions and on turn allocated to this court for trial. Thereafter case was fixed for arguments on charge.
5. After hearing arguments and on perusal of the material placed on record a prima facie case for the offence u/s 392/397 IPC was made out against the accused. Charge framed accordingly to which he pleaded not guilty and claimed trial, thereafter case was fixed for prosecution evidence.
4/22 5FIR NO.13/11, P.S SEELAM PUR, ST. VS RIJWAN @ RAJA
6. HC Kanwar Pal appeared as (PW1), Rashid Ali s/o Fiyaz Ali as (PW2), Nadeem s/o Mohd. Saleem as (PW3), HC Kiran Pal as (PW4), Ct. Ashok Kumar as (PW5), SI Chanchal Singh as (PW6) and Dr. Bhavesh Chadha as (PW8). Process issued against Ct. Faizal returned unserved with the remarks that he has been running absent from his duty without intimation and his whereabouts are also not known. PW Ct. Chiranji Lal absent but on perusal of his statement recorded by IO u/s 161 Cr.P.C it appears that no kind of any role is attributed to him, therefore, he is not a material witness and is not required to be examined. After examination of PW7 Dr. Bhavesh Chadha and in view of the aforesaid discussion I am of the considered view that no material witness is left to be examined, therefore, prosecution evidence is closed and case was fixed for statement of accused u/s 313 Cr.P.C.
7. Brief testimony of all the PW's are as follows :
(i) PW1 deposed that on 14.01.11 at about 9:30 p.m he received an information from the control room regarding inflicting injuries by ustra/knife in a quarrel on the road in front of Government School, New Seelam Pur. On receipt of said information he alongwith his staff reached at the spot. On reaching there one Rashid Ali and Nadeem met him. Some public persons were also present there. One person who was unconscious also lying on the ground. Rashid Ali told him that the person who had used ustra in committing the crime received injuries on beating by the public persons. He further 5/22 6 FIR NO.13/11, P.S SEELAM PUR, ST. VS RIJWAN @ RAJA deposed that he took all the injured including accused to GTB hospital and got them admitted there.
(ii) PW2 is the injured and deposed that on 14/1/2011 at about 9 p.m he along with Nadeem (his brother in law) had gone to Gurdwara road near Primary School Seelam Pur to purchase shoes.
In the meantime three/four persons reached there and started quarreling with them. Out of those three/four persons, one person assaulted his brother in law Nadeem with some pointed object on his face, other persons assaulted him with some rod like object on his right hand. He further deposed that those persons took away a purse containing Rs.20,000/- from the back side pocket of his pant and run away from the spot. They raised alarm. One accused person while running from the spot hit with a tempo parked near Seelam Pur Theka and fell down. He was apprehended by public persons and was given beatings to him due to that he became unconscious. He correctly identified the accused who was caught hold by the public persons as Rizwan @ Raja. He also identified that person as who has assaulted his brother in law Nadeem with pointed object. They all were taken to GTB hospital by the PCR van. IO recorded his statement and due to injuries on his right hand he could not put his signature however, put his thumb impression on statement Ex. PW2/A at point A. Accused persons along with other co-associates assaulted his brother in law and removed Rs.20,000/- from the pocket of his brother in law. He also identified his thumb impression 6/22 7 FIR NO.13/11, P.S SEELAM PUR, ST. VS RIJWAN @ RAJA on the MLC Ex.PW 2/B. During his cross examination by amicus curaie on behalf of accused he deposed that he had not seen any arms in the hands of accused persons when they grappled with him. He had also not seen the person who had removed purse containing Rs.20,000/- from the pocket of his pant. He could not see their faces clearly. No public persons came forward at the time of incident. None of the accused was known to him prior of this incident. He further deposed that nothing was recovered from the possession of accused in his presence. Rest of his testimony is reiterated by him as submitted by him during examination in chief.
(iii) PW3 is the another injured and corroborated the testimony of PW2. He identified the accused present in the court who had assaulted him with pointed object alongwith his other co-associates. Irrespective of the testimony of PW2 he further deposed that on 15.1.11 accused was arrested at GTB hospital vide memo Ex.PW3/A and his personal search was conducted vide memo Ex.PW3/B. Both the memos bearing his signature. He also identified his left thumb impression on the MLC Ex.PW3/C at point A. During his cross examination he deposed that no public person was gathered at the time of incident. He further stated that accused assaulted them for about 20 minutes. He further deposed that 7/22 8 FIR NO.13/11, P.S SEELAM PUR, ST. VS RIJWAN @ RAJA accused present in the court was apprehended at 7/7:30 p.m in his presence from New Seelam Pur and again said accused was apprehended from GTB hospital but he admitted that nothing was recovered from the possession of accused Rizwan in his presence. Rest of his testimony is reiterated by him as submitted by him during examination in chief.
(iv) PW4 is the formal witness. He only recorded formal FIR no.13/11 Ex.PW4/A on the basis of rukka sent by SI Chanchal Singh. He further deposed that after recording FIR he sent copy of FIR and original rukka to IO for further investigation. He also made endorsement on the rukka same is Ex.PW4/B bearing his signature at point A. 8/22 9 FIR NO.13/11, P.S SEELAM PUR, ST. VS RIJWAN @ RAJA
(v) PW5 is again a formal witness and deposed that on 15.1.11 he was posted as ct. at PS Seelam Pur and on that day as per direction of IO he was directed to remain present at GTB hospital where accused Rizwan @ Raja was got admitted with injuries. IO came to the hospital and after brief interrogation he arrested accused Rizwan @ Raja vide arrest memo Ex.PW3/A. He further deposed that witness Nadeem was also present with IO, personal search of accused was conducted vide memo Ex. PW3/B. Accused Rizwan was also interrogated thoroughly and disclosure statement was also recorded which is Ex. PW5/A. Accused Rizwan @ Raja took the police team to the spot and as per his pointing out memo Ex.PW5/B was prepared.
(vi) PW6 is the IO who had corroborated the testimony of PW4, PW5 and also of the testimonies of the public witnesses who received injuries in the said incident and further deposed that on 14.1.11 on receipt of DD no.12A, true copy of same is Ex.PW6/A he alongwith Ct. Faizal reached at the spot i.e near Primary School, Gurudwara road, Seelam Pur, Delhi and on reaching there he came to know that injured had already been shifted to GTB hospital. He also came to know that one of the co-accused was apprehended by the public persons and was also shifted to GTB hospital. They went to GTB hospital and found Nadeem and Rizwan @ Raja admitted there. He also found one of the co-accused (unknown admitted there) and whose name was later on revealed as Rizwan @ Raja. Both 9/22 10 FIR NO.13/11, P.S SEELAM PUR, ST. VS RIJWAN @ RAJA injured were declared fit for making statement. Statement of Rashid Ali Ex.PW2/A was recorded. He made his endorsement on his statement Ex.PW6/B, prepared rukka and directed Ct. Faizal to remain present with the accused Rizwan in the hospital. He went to PS and after registration of the case he again returned back to the hospital. Both the injured Nadeem and Rashid Ali were discharged from the hospital. They both accompanied him to the spot. He prepared site plan at their instance which is Ex.PW 6/C. He recorded statement of witnesses and again returned to the hospital. He also made search of arrest of other accused persons but they could not be arrested. He further deposed that on 15/1/11 Const. Ashok was sent to GTB hospital to remain present with accused Rizwan @ Raja and in the evening time, he along with injured Nadeem again went to hospital. Accused Rizwan @ Raja was also discharged. After brief interrogation accused Rizwan was arrested vide memo Ex.PW 3/A and his personal search was conducted vide memo Ex.PW 3/B. Accused was also identified by injured Nadeem prior to his arrest. Disclosure statement of accused Ex.PW 5/A was recorded and pursuant to his disclosure statement he took the police team to the spot and as per his pointing out, he prepared pointing out memo Ex.PW 5/B. He recorded statement of witnesses, collected the result of MLC and after completion of investigation challan u/s 173 Cr.P.C was presented in the court.
10/22 11FIR NO.13/11, P.S SEELAM PUR, ST. VS RIJWAN @ RAJA During his cross examination he reiterated his testimony as submitted by him during examination in chief.
(vii) PW7 is the doctor who proved the factum of nature of injuries opined by him on the MLC Ex.PW3/A and he specifically deposed that on the basis of report produced before him he opined the nature of injuries as simple but on perusal of the nature of injuries mentioned on the MLC he further deposed that same appears to have been caused by sharp object. Thereafter, no PW was left to be examined, therefore, prosecution evidence was closed and case was fixed for examination of accused u/s 313 Cr.P.C.
8. During the course of examination of accused u/s 313 Cr.P.C he controverted all the allegations as alleged against him and submitted that he was innocent and falsely implicated in this case. He did not desire to lead defence evidence, therefore, DE was closed and final arguments heard.
9. I have heard arguments on behalf of Ld. counsel for accused as well as on behalf of Ld. Addl. PP for state.
10. Ld. counsel for accused submitted that before convicting the accused under any penal law it is the duty of the prosecution to prove its case beyond reasonable doubt and in the present case accused Rizwan was apprehended and beaten by the public persons, 11/22 12 FIR NO.13/11, P.S SEELAM PUR, ST. VS RIJWAN @ RAJA therefore, he was admitted to GTB hospital. As per prosecution version he was found unconscious at the place of incident and immediate thereafter he was taken to GTB hospital and was also arrested in the hospital after discharge. His personal search was conducted and during search nothing was recovered from his possession thereby it is established that allegations of taking away the purse containing amount of Rs.20,000/- is totally false and in the absence of any such recovery, ingredients for the offence u/s 392/397 IPC are not attracted in the present case.
11. It is further pleaded that if the testimony of PW2 injured Rashid and PW3 Nadeem is taken as gospel truth then also ingredients for the offence u/s 323/324 IPC are only attracted against the accused Rizwan @ Raja however, doctor who had opined the nature of injury on the MLC of Nadeem it is no where mentioned that injury is caused by sharp object, it is opined that nature of injury is simple. In such circumstances there is no sufficient evidence to convict the accused for the offence u/s 324 IPC also and in the absence of ingredients of any cognizable offence case remains to be tried u/s 323 IPC which is non cognizable offence and police cannot arrest the accused in this case without seeking permission of Ld. MM which has not been taken and in view of the aforesaid discussion alone the accused has become liable to be acquitted in this case.
12. Irrespective of the aforesaid discussion there are material contradictions in the testimony of both public witnesses. PW2 12/22 13 FIR NO.13/11, P.S SEELAM PUR, ST. VS RIJWAN @ RAJA deposed that at the time of incident three/four persons reached there and started quarreling with them and one among them assaulted his brother in law Nadeem with some pointed object on his face. Neither the pointed object nor any rod allegedly used by accused Rizwan are recovered despite of the fact that he was very well apprehended by the public persons while running and immediately taken to GTB hospital and his personal search was also taken.
13. PW2 during his cross examination specifically stated that he had not seen any arms in the hands of accused person but they grappled with him. He further deposed that he had not noticed any person while removing his purse containing Rs.20,000/- from his pocket. He further deposed that no public persons came forward at the time of incident. On the other hand PW3 deposed that many public persons were present at the spot and accused was apprehended in his presence by the public persons. PW2 deposed that accused assaulted them for about five/seven minutes and PW3 deposed that accused assaulted them for about 20 minutes. Rest of witnesses are police witnesses. They conducted the investigations only on the basis of statement made by PW2 Rashid Ali. PW7 is the doctor who only opined the nature of injury as simple and in view of aforesaid submissions it is established that prosecution totally failed to prove its case against accused beyond reasonable doubt and requested for his acquittal.
13/22 14FIR NO.13/11, P.S SEELAM PUR, ST. VS RIJWAN @ RAJA
14. On the contrary Ld. Addl. PP for state submitted that initially a case was registered on the basis of statement of PW2 Rashid Ali and whatever stated by him in his statement same facts are deposed by him before the court. Factum of causing injury on the person of Nadeem as well as upon injured Rashid Ali is proved and corroborated by both of them. They were got medically examined and the description of the injuries disclosed by PW2 Rashid Ali has been corroborated by doctor who had prepared MLC and on perusal of MLC it is established that both witnesses PW2 and PW3 received injuries in the hands of accused persons and Rizwan @ Raja was also among them. It is established fact that accused Rizwan was apprehended by the public persons when he fell down while running from the spot. He also received injuries. He was also got admitted in the hospital. In such circumstances it cannot be said that accused Rizwan @ Raja was not present at the spot and not caused injury to the person of PW2 and PW3. This fact is further corroborated by police officials who had investigated the case on receipt of information. Nature of injury was also opined by PW7 which is simple caused by sharp weapon. Irrespective of the fact that neither the weapon nor the recovery of purse containing Rs.20,000/- was affected from the possession of accused Rizwan @ Raja it cannot be said that ingredients for the offence u/s 392/397 IPC are not attracted as these could not have been recovered due to the reason that other co-accused might have taken away while running from the spot and they could not be arrested. In such circumstances, it cannot be said 14/22 15 FIR NO.13/11, P.S SEELAM PUR, ST. VS RIJWAN @ RAJA that accused cannot be held guilty for the offence as alleged against them u/s 392/397 IPC.
15. In view of the aforesaid discussion it is submitted that sufficient ingredients to disclose the offence for which accused has been charged is brought on record and requested for his conviction.
16. After hearing arguments and taking into consideration the facts and circumstances of this case and on perusal of the evidence adduced by the prosecution it is established that in the absence of recovery of currency notes and weapon of offence, I am of the considered view that ingredients to commit the offence of robbery is not brought on record against accused Rizwan @ Raja as he has been apprehended at the spot and there was no scope of misappropriation of the currency notes if taken away by him from the pocket of PW2 Rashid Ali. In such circumstances, accused has become entitled to be given him benefit of doubt for the offence of robbery however, sufficient evidence is brought on record to convict the accused for the offence u/s 323/324 IPC. I accordingly, held accused Rizwan @ Raja guilty for the offence u/s 323/324 IPC . Let he be heard on the point of sentence on 09.09.2011.
(B.S. CHUMBAK) ASJ-3/North East District KKD/Delhi 15/22 16 FIR NO.13/11, P.S SEELAM PUR, ST. VS RIJWAN @ RAJA Announced in the open court Delhi Dt.08.09.2011 16/22 17 FIR NO.13/11, P.S SEELAM PUR, ST. VS RIJWAN @ RAJA FIR NO. 13/11 PS SEELAM PUR 08.09.2011 Present: Sh.S.K. Dass Ld. Addl. PP for state.
Accused present in JC.
Sh. Dassa Ram amicus curaie on behalf of accused. Final arguments already heard.
Vide separate detailed judgment accused Rizwan @ Raja held guilty for the offence u/s 323/324 IPC. Let he be heard on the point of sentence on 09.09.2011.
(B.S. CHUMBAK) ASJ-3/North East District KKD/Delhi/08.09.2011 17/22 18 FIR NO.13/11, P.S SEELAM PUR, ST. VS RIJWAN @ RAJA IN THE COURT OF SH. B.S. CHUMBAK: ADDL. SESSIONS JUDGE-3 (North East): KARKARDOOMA : DELHI SC No. 14/11 FIR NO. 13/11 PS Seelam Pur U/S 392/397 IPC STATE VS RIJWAN @ RAJA Present: Sh. S.K. Dass Ld. Addl. PP for state.
Convict produced from JC.
Sh. Dassa Ram Advocate/Amicus Curiae on behalf of convict ORDER ON SENTENCE
1. I have heard the arguments on behalf of Ld. Addl. P.P for State as well as ld. Counsel on behalf of the convict on the point of quantum of sentence.
2. Ld. counsel for convict submits that convict is poor person, only bread earner in his family and is 21 years of age and has to support his family and has no previous criminal record.
18/22 19FIR NO.13/11, P.S SEELAM PUR, ST. VS RIJWAN @ RAJA
3. Ld. counsel on behalf of convicts pleaded that convict is in judicial custody since his arrest in this case and requested for releasing him on the term of imprisonment for which he had already undergone.
4. In view of the submissions made by the counsel for convict and considering his young age at the time of commission of offence coupled with the fact that he is not involved in any other case I am of the considered view that it would be in the interest of justice to take lenient view at the time of awarding sentence. Accordingly convict Rijwan @ Raja s/o Afzal is hereby sentenced to a term of imprisonment for the period already undergone by him for the offence u/sec. 323/324 IPC.
5. Benefit of Section 428 Cr.P.C shall be given to the convict as per law.
Copy of the judgment and this order be given to the convicts free of cost.
6. Convict is directed to furnish the personal bond in the sum of Rs.5000/-. Personal bond furnished and accepted. Personal bond of 19/22 20 FIR NO.13/11, P.S SEELAM PUR, ST. VS RIJWAN @ RAJA convict Rizwan @ Raja shall remain in force till the expiry of six months and convict is further directed to appear before the appellant court, if he is required to appear before the appellant court in view of the provision of section 437 A Cr.P.C. Accused be released from the jail forthwith, if not wanted in any other case. File be consigned to the Record Room.
(B.S. CHUMBAK) ASJ-3/North East District KKD/Delhi Announced in the open court on 9th Day of September 2011 20/22 21 FIR NO.13/11, P.S SEELAM PUR, ST. VS RIJWAN @ RAJA SC No. 14/11 FIR NO. 13/11 PS Seelam Pur U/S 392/397/34 IPC STATE VS RIJWAN @ RAJA 09.09.2011 Present: Sh. S.K. Dass Ld. Addl. PP for state.
Convict produced from JC.
Sh. Dassa Ram Advocate/Amicus Curiae on behalf of convict.
Arguments on the quantum of sentence heard.
Vide separate order convict Rijwan @ Raja s/o Afzal is hereby sentenced to a term of imprisonment for the period already undergone by him for the offence u/sec. 323/324 IPC.
Benefit of Section 428 Cr.P.C shall be given to the convict as per law. Copy of the judgment and this order be given to the convicts free of cost.
Convict is directed to furnish the personal bond in the sum of Rs.5000/-. Personal bond furnished and accepted. Personal bond of convict Rizwan @ Raja shall remain in force till the expiry of six months and convict is further directed to appear before the appellant court, if he is required to appear before the appellant court in view of the provision of section 437 A Cr.P.C. Accused be released from the jail forthwith, if not wanted in any other case. File be consigned to the Record Room.
21/22 22FIR NO.13/11, P.S SEELAM PUR, ST. VS RIJWAN @ RAJA ASJ-3 NE DISTT. KKD/DELHI 09.09.2011 22/22