Delhi District Court
State vs . Bhure @ Fakre Alam Etc. on 31 May, 2014
S/V Bhure @ Fakre Alam etc.
IN THE COURT OF SH. AMIT BANSAL, ADDITIONAL SESSION JUDGE04
(NORTHWEST DISTRICT) ROHINI COURTS, DELHI
IN THE MATTER OF :
S.C. No. 78/01
FIR No. 119/09
U/S 307/ 323/34 IPC
P.S. Swaroop Nagar
Unique ID No. 02404R0351312009
State Vs. Bhure @ Fakre Alam etc.
STATE VERSUS 1. Bhure @ Fakre Alam S/O Mohd.
Ashiq Mulla, R/O Jhuggi No.5,
Basant Dada Patil Nagar, Bhalaswa
Dairy, Delhi.
2. Mohd. Ashiq Mulla S/O Mohd.
Tajuddin, R/O Jhuggi No.5,
Basant Dada Patil Nagar, Bhalaswa
Dairy, Delhi.
3. Arvind Kumar Rajbar S/O Thakur
Rajbar , R/O H.No. 1943, BlockK,
Jahangir Puri, Delhi ( since deceased
and proceedings against him have
been abated vide order dated 04.09.13)
Date of receipt of file in this Court: 25.01.2014
Date when arguments were heard: 29.05.2014
Date of judgment : 31.05.2014
FIR No. 119/09 P.S. Swaroop Nagar page 1 of 20
S/V Bhure @ Fakre Alam etc.
JUDGMENT
1. Accused Bhure @ Fakre Alam and Mohd. Ashiq Mulla are facing trial on the allegations of the prosecution that on 15.05.09 at about 4 p.m. opposite Jhuggi No.5, Kalandar Colony, Bhalswa Dairy, Delhi they along with their co accused Arvind Rajbar ( since deceased), in furtherance of their common intention assaulted Musharraf ( PW4) S/O Sh. Sharafat Ali with a knife ( Churi) with such intention or knowledge and under such circumstances that if by that act they had caused death of Musharraf then all of them would have been guilty of murder and thereby they committed an offence punishable U/S 307/34 IPC.
2. After the compliance of Section 207 CrPC, the present case was committed to Sessions court as the offence U/S 307 IPC is exclusively triable by the Sessions court.
3. After hearing the arguments, the charge U/S 307/34 IPC was framed against all the three accused persons by the Ld. Predecessor of this court vide order dated 03.05.10 to which all the three accused persons pleaded not guilty and claimed trial. It is pertinent to note that accused Arvind Kumar expired during the trial of the case and proceedings against him were abated vide order dated 04.09.13.
4. The prosecution in support of its case has examined total 13 witnesses i.e. PW1 Ct. Ramphal, PW2 H C Rang Bahadur, PW3 Dr. Neeraj Chaudhary, PW4 Musharraf ( injured), PW5 Nadeem (brother of PW4, one of the injured and the complainant of this case), PW6 HC Shripal ( MHC(M)), PW7 CT. Narender FIR No. 119/09 P.S. Swaroop Nagar page 2 of 20 S/V Bhure @ Fakre Alam etc. Kumar, PW8 Dr. Lovnish Singh, PW9 Ct. Manjeet Malik, PW10 HC Naresh Kumar, PW11 HC Samarveer , PW12 ASI Vijay Kumar and PW13 ASI Shyam Sunder ( IO of the case ).
5. Separate statements of accused Bhure @ Fakre Alam and Mohd. Ashiq Mulla were recorded U/S 313 CrPC in which they denied all the material incriminating circumstances appearing in the prosecution evidence against them . They further stated that that it is a false case and ASI Shyam Sunder ( IO) was having a grudge against them and he in connivance with the complainant falsely implicated them in the present case. They also stated that they are innocent and were falsely implicated after obtaining their signatures on the blank papers by the police under threat. The accused Bhure @ Fakre Alam also denied that pursuant to his disclosure statement he got recovered one dagger type churi ( EX P1) from beneath the almirah of his jhuggi, the said dagger type churi was having stains of blood and its sketch EX PW 5/F was prepared by PW13. Both the accused persons preferred to lead defence evidence in this case .
6. Both the accused persons have examined Sh. Siya Ram Yadav as DW1 in support of their case and no other witness has been examined by the accused persons in their defence.
7. I have heard the final arguments on behalf of Ld. Addl. P P for the State, Ld. Defence counsel and have perused the record including the written arguments as filed on behalf of accused persons.
8. Ld. Addl. P P for the State has argued that the accused persons in furtherance of their common intention attempted to murder PW4 Musharraf and also gave injuries to PW5 Nadeem i.e. the real brother of PW4. He argued that PW4 and FIR No. 119/09 P.S. Swaroop Nagar page 3 of 20 S/V Bhure @ Fakre Alam etc. PW5 are natural and trustworthy witnesses and the accused persons are liable to be convicted U/S 307/323/34 IPC. He argued that as per the testimony of PW 4 the accused Ashiq Mulla and Arvind caught hold of PW4 whereas accused Bhure @ Fakre Alam gave churi blows on the person of PW4 on his abdomen, left arm and back side of the neck. He also referred to the MLC Ex PW 3/A of PW4 . He submitted that accused Arvind Kumar ( since deceased ) was arrested later on 15.10.09 whereas the other two accused were arrested on the date of incident i.e. 15.05.09 itself. He argued that pursuant to his disclosure statement ( Ex PW 5/G), the accused Bhure @ Fakre Alam got recovered one blood stained dagger ( Ex P1) from beneath the almirah of his jhuggi which was taken into possession vide Ex PW 5/E1. He also submitted that on 16.05.09, PW5 Nadeem also produced one blood stained baniyan ( Ex P2) having cut on it which was being worn by PW4 at the time of the incident and the same was taken into possession vide EX PW 5/F1. He argued that variations in the testimonies of PW4, PW5 and other police witnesses are only minor in nature and does not go to the root of the case . He argued that both the accused persons i.e. Bhure @ Fakre Alam and Mohd. Ashiq Mulla be convicted U/S 307/34 IPC.
9. The Ld. Counsel for the accused persons on the other hand argued that the accused persons are innocent and have been falsely implicated in the present case at the instance of the complainant as PW5 ( complainant) and his brother ( PW4) were having a quarrel with the accused persons. He also argued that both PW4 and PW5 were also having quarrel between them, PW5 assaulted PW4 and the accused persons being neighbors intervened to settle the matter FIR No. 119/09 P.S. Swaroop Nagar page 4 of 20 S/V Bhure @ Fakre Alam etc. and that the accused Arvind Kumar ( since expired) also received injuries while saving PW4 from PW5 and thereafter PW4 and PW5 to save their skin falsely implicated the accused persons in the present case. He argued that the disclosure statement of the accused Bhure @ Fakre Alam was recorded forcibly , nothing was recovered at the instance of accused Bhure @ Fakre Alam and the recovery of dagger ( churi) has been planted upon the accused Bhure @ Fakre Alam in connivance with PW5 . He argued that PW4 and PW5 and even other witnesses have admitted that the spot was a thickly populated area, however, still no independent public witness has been examined or associated during the entire investigation. He also referred to the testimony of PW4 and PW5 and argued that there are material contradictions and improvements among them which render their testimony unworthy of any credence. He referred to the testimony of PW3 and PW8 and argued that the prosecution has failed to link the said dagger type churi with the case offence and that PW8 could not tell the kind of weapon with which the injured had sustained injuries. He also referred to EX PX and EX PY i.e. FSL reports and argued that although human blood was detected on one cut/ torn baniyan and dagger ( knife) yet there was no reaction regarding the blood grouping on the said baniyan or dagger ( knife). In this regard he also referred to the testimony of PW5 in which in his crossexamination he has deposed that the police seized the knife ( churi) at the spot at that time, whereas the case of prosecution is that the accused Bhure @ Fakre Alam got the same recovered from his jhuggi pursuant to his disclosure statement and the same was seized from his jhuggi No. 105/05, Basant Dada Patil Nagar, Bhalswa Dairy, Delhi vide seizure memo EX PW 5/E1. He also referred to the testimony of PW FIR No. 119/09 P.S. Swaroop Nagar page 5 of 20 S/V Bhure @ Fakre Alam etc. 12 ASI Vijay Kumar who was posted at PCR on the date of incident and has deposed that he removed the injured persons namely Musharraf ( PW4) and Arvind ( accused, since deceased) to BJRM Hospital, Jahangir Puri, Delhi whereas PW5 has deposed that they both ( PW4 and PW5) were removed to BJRM Hospital by the police. He also referred to the testimony of DW1 mentioning that he has not been properly crossexamined by the Ld. Addl. P P for the State and from the testimony of said independent witness it is evident that the accused persons are innocent and have been falsely implicated in the present case. He also referred to the following judgments:
a) Prithvi Pal Singh @ Munna Vs. State, Crl. A. No. 56/96 of Hon'ble High Court of Delhi as decided on 21.02.2000.
b) Sans Pal Singh Vs. State of Delhi, Crl. A. N. 702 of 1997 of Hon'ble Supreme Court of India as decided on 08.01.1998.
c) Sunil Kundu and Anr. Vs. State of Jharkhand, 2013 (5) SCALE 433 .
10. As mentioned above, the prosecution in support of its case has examined total 13 witnesses.
PW1 Ct. Ramphal was working as DD writer on 15.05.09 at P S Swaroop Nagar and has deposed that at about 4.28 p.m. he received a message through wireless operator that some persons had been stabbed and he reduced the same in writing vide DD no. 44 B dated 15.05.09 ( EX PW 1/A).
PW2 H C Rang Bahadur was working as Duty Officer on 15.05.09 at P.S . Swaroop Nagar and has deposed that on that day at about 7.35 p.m. he received a rukka through Ct. Samarveer Singh ( PW11) sent by ASI Shyam Sunder ( PW13) for the registration of the case. After receiving the rukka , PW2 FIR No. 119/09 P.S. Swaroop Nagar page 6 of 20 S/V Bhure @ Fakre Alam etc. made endorsement Ex PW 2/A on it and thereafter, case FIR ( Ex PW 2/B) was registered by him. After registration of the case, the investigation was assigned to PW13 and PW2 sent the carbon copy of FIR and rukka in original to PW13 through PW11.
PW3 Dr. Neeraj Chaudhary deposed that he was deputed by M.S. BJRM Hospital to depose regarding the MLC No. 2857 of patient Musharraf Khan ( PW4). He deposed that PW4 was examined by Dr. Murtaza and the following injuries were noticed :
1. The punctured wound of size 4 cms over epigastrium with extruded intestine and omentum.
2. Lacerated wound 4 x 2 cms over left thigh on anterio lateral
3. Punctured wound 0.5 x 0.5 cms over medial aspect of left thigh.
4. Incised wound of size 2.5 cms long over right intrascapular region along the spine .
5. Superficial incised wound 8 cms long over posterior aspect of neck.
PW3 deposed that the patient was referred to surgery ( SR), was seen by Dr. Rakesh and Dr. Rakesh referred the patient to LNJP Hospital for further management . The MLC has been proved as EX PW 3/A. PW4 Musharraf is one of the most material witness for the prosecution being the injured of the case incident. The testimony of PW4 shall be discussed in detail during the course of the judgment.
PW5 Nadeem is also one of the most material witness for the prosecution FIR No. 119/09 P.S. Swaroop Nagar page 7 of 20 S/V Bhure @ Fakre Alam etc. being the complainant of the case and also one of the injured of the case incident. The statement of PW5 dated 15.05.09 upon which the case FIR has been registered has been proved as EX PW 5/A. PW5 deposed that he was discharged from BJRM Hospital on the same day and accused Bhure @ Fakre Alam and Mohd. Ashiq Mulla were arrested by the police from jhuggies Basant Dada Patil Gali, vide arrest memos EX PW 5/B and EX PW 5/C respectively. The personal search memos of accused Bhure @ Fakre Alam and Mohd. Ashiq Mulla have been proved as EX PW 5/D and EX PW 5/E respectively. PW5 deposed that thereafter accused Bhure @ Fakre Alam got recovered one churi ( dagger) from his house which was kept by him beneath the almirah. The sketch memo of said dagger / churi has been proved as EX PW 5/F. PW5 deposed that the said dagger/ churi was sealed in a cloth parcel, which was taken into possession vide seizure memo proved as EX PW 5/E1 and that the site plan was also prepared in his presence. He deposed that on the next day i.e. 16.05.09 he handed over the blood stained baniyan of his brother PW4 to the police having cut portion and the same was taken into possession after sealing the same in a cloth parcel vide memo proved as EX PW 5/F1. The disclosure statement of accused Bhure @ Fakre Alam has been proved as EX PW 5/G. PW5 identified the above said dagger as EX P1 and the above said baniyan as EX P2. PW5 also identified all the three accused persons in the court. The testimony of PW5 shall be discussed in detail during the course of the judgment.
PW6 HC Shri Pal has deposed that on 15.05.09 he was working as MHC(M) at P S Swaroop Nagar . He has deposed regarding the receiving and sending of pullandas at malkhana. The photocopy of the entries in register No.19 FIR No. 119/09 P.S. Swaroop Nagar page 8 of 20 S/V Bhure @ Fakre Alam etc. have been proved as EX PW 6/A to EX PW 6/G . PW6 deposed that he did not tamper with the exhibits as long as they remained in his possession.
PW7 Ct. Narender Kumar deposed that on 26.06.09 MHC(M) handed him two parcels sealed with the seal of SSY which he took to FSL, Rohini vide RC No. 34/21/09 ( EX PW 6/D) and deposited the same there and handed over the acknowledgment receipt ( EX PW 6/E) to MHC(M).
PW8 Dr. Lovnish Singh , SR ( surgery), LNJP Hospital, deposed that he had seen the MLC No. 2857 of patient Musharraf Khan who was admitted and examined at BJRM Hospital on 15.05.09 at about 5.20 p.m. with alleged history of physical assault and thereafter was referred to LNJP Hospital. He deposed that on 19.05.09 the said patient was examined by him and was declared fit for statement vide endorsement EX PW 8/A on MLC EX PW 3/A. He deposed that that on 23.06.09 after examining the record and findings, he opined that the injury was grievous in nature and his endorsement in that regard has been proved as EX PW 8/B on MLC EX PW 3/A. In crossexamination PW8 could not tell the kind of weapon with which the injured ( PW4) had sustained injuries , however, deposed that as per MLC the injuries were penetrating in nature.
PW9 Ct. Manjeet Malik deposed that on 15.10.09 he joined the investigation of the present case with PW13 and at the instance of a secret informer, the accused Arvind Kumar was arrested in this case vide arrest memo EX PW 9/A and personal search memo EX PW 9/B. PW10 H C Naresh Kumar deposed that on 15.05.09 he was posted in CPCR, PHQ as wireless operator and on that day he received a computerized form from channel operator receiving calls at 100 number. PW10 sent vehicle FIR No. 119/09 P.S. Swaroop Nagar page 9 of 20 S/V Bhure @ Fakre Alam etc. commander 39 at the address mentioned in the call form i.e. Bhalswa Dairy, Kalandar colony, Durga Chowk and deposed that the call was regarding a fight. He deposed that the vehicle sent to the spot i.e. commander 39 reported that it had reached the spot and had taken injured to hospital in PCR . He deposed that since there was requirement of another PCR at the spot, he sent vehicle commander 42 at the above said address and the said PCR vehicle also took the injured to BJRM Hospital . The computerized PCR form has been proved as EX PW 10/A. PW11 HC Samarveer associated with the IO ( PW13) during the investigation of the case , took the rukka to the P S for registration of the case and after getting the case registered came back at the spot i.e. Kalandar Colony, opposite jhuggi No.5 and handed over the rukka along with carbon copy of FIR to the IO. He deposed that the accused Bhure @ Fakre Alam got recovered one dagger from beneath of the almirah and on conducting the measurement of the dagger, its total length was found to be 28.6 cms, out of which the blade was of 16.8 cms, handle was of 8.8 cms and 3 cms of grari ( middle portion of the dagger). He identified the said dagger as EX P1 and the above mentioned baniyan produced by PW5 as EX P2.
PW12 ASI Vijay Kumar deposed that on 15.05.09 he was posted at PCR as PCR Incharge on commander 39 MPV , North West zone and on that day he received a PCR call regarding ' jhagda at Bhalswa Dairy, Kalandar colony, near Durga Chowk' and after receiving the call he rushed to the spot in his PCR van. He deposed that on reaching Kalandar Colony, he parked his vehicle on the main road as PCR van could not pass through the said narrow street and FIR No. 119/09 P.S. Swaroop Nagar page 10 of 20 S/V Bhure @ Fakre Alam etc. thereafter they reached inside the Masjid wali gali. He deposed that in the gali they found a large gathering of persons and two persons in injured condition. PW12 deposed that he immediately removed those injured persons namely Musharraf and Arvind to BJRM Hospital, Jahangir Puri, Delhi and admitted them there.
PW13 ASI Shyam Sunder is the IO of the case. The rukka prepared by PW13 has been proved as EX PW 13/A and the site plan prepared by PW13 at the instance of injured Nadeem ( PW5) has been proved as EX PW 13/B. He deposed that on the MLC of Musharraf ( PW4) the doctor opined the nature of injuries as grievous while on ME of Nadeem ( PW5) it was opined as simple in nature.
11. DW1 Sh. Siya Ram Yadav has deposed that on 15.05.09 at about 4 p.m. he was with accused Ashiq Mulla at the house of the accused and after hearing the hot arguments between complainant Nadeem ( PW5) and Musharraf ( PW4), DW1 along with all the three accused persons reached there. He has deposed that PW5 was demanding Rs.10,000/ from PW4 and he along with all the three accused persons tried to separate PW4 and PW5 but they did not stop the quarrel. He has deposed that PW5 was having a knife in his hand, he was also under the influence of liquor , PW5 hit PW4 with knife and as a result PW4 received injuries between stomach and chest and in order to save them, accused Arvind Kumar also received some injuries on his neck and leg with knife.
12. The case of the prosecution against the accused persons is that on 15.05.09 at about 4 p.m. opposite Jhuggi No.5, Kalandar Colony, Bhalswa Dairy, Delhi they in furtherance of their common intention firstly inflicted simple injuries on the FIR No. 119/09 P.S. Swaroop Nagar page 11 of 20 S/V Bhure @ Fakre Alam etc. person of PW5 Nadeem and when thereafter PW4 came to know about the said assault upon PW5 i.e. his younger brother he reached at the spot where accused Mohd. Ashiq Mulla and Arvind Kumar ( since deceased) caught hold of PW5 and accused Bhure @ Fakre Alam gave knife/ churi/ dagger blows on the person of PW4 and at that time the accused persons had such intention or knowledge and injuries were caused under such circumstances on the person of PW4 and PW5 that if by that act they had caused their death then all would have been guilty of murder and thus they committed an offence punishable U/S 307/34 IPC.
13. The most material witnesses for the prosecution in this case are PW4 and PW 5 i.e. the injured of the case incident.
Perusal of record, however, shows that there are material contradictions and improvements in the testimony of PW4, PW5 and other witnesses which render their testimony unworthy of any credence and untrustworthy.
PW4 has deposed that on 05.05.09 ( 15.05.09 being the correct date of incident) at about 4 p.m., when he was present at his house, someone had informed him that his younger brother Nadeem ( PW5) was being beaten by all the three accused persons. He further deposed that after receiving the said information, he immediately went to the house of accused Mohd. Ashiq Mulla where he saw that all ( the three accused ) were giving beatings to PW5 at the thresh hold of their house. PW5 to the contrary has deposed in his examination in chief that when he raised alarm then his brother Musharraf ( PW4) also reached there. It is a material contradiction in the testimony of PW4 and PW5 regarding the information, if any received by PW4 upon which he reached at the FIR No. 119/09 P.S. Swaroop Nagar page 12 of 20 S/V Bhure @ Fakre Alam etc. spot of incident. It becomes material because as per the case of prosecution only after PW4 reached the spot, the case incident occurred. It is further pertinent to note that in crossexamination PW4 deposed that he had stated in his statement to the police that some one had informed him that his younger brother Nadeem ( PW5) was being beaten by all the three accused persons, upon which he was confronted with his statement EX PW 4/ DA ( statement dated 19.05.09 U/S 161 CrPC of PW4), where this fact was not recorded. It also raises a strong doubt over the truthfulness of the testimony of PW4, the most material witness of the case.
PW4 has deposed in his crossexamination that when he reached there, all the three accused persons started beating him and his brother ( PW5) managed to escape from the spot. He further deposed that PW5 did not try to save him as he ( PW5) was saving his own life. PW5 on the other hand has never deposed to the effect that he managed to escape from the spot. PW5 has rather deposed to the effect that accused Bhure gave churi blows on the person of PW4 which he ( Bhure) had brought from the other house just adjacent to the house where they were giving beatings to them. PW5 further deposed that accused Bhure also attacked him with a churi and he sustained injuries on the thumb of his right hand, he started shouting, public persons gathered at the spot , the accused persons ran away from there, thereafter the police also reached at the spot and he and his brother ( PW4) were removed to BJRM Hospital. It is in total contradiction to the testimony of PW4 as PW4 deposed that PW5 managed to escape from the spot whereas PW5, as discussed above, has deposed to the effect that he as well as PW4 were attacked by all the accused persons and after reaching of the FIR No. 119/09 P.S. Swaroop Nagar page 13 of 20 S/V Bhure @ Fakre Alam etc. police at the spot they both were removed to the BJRM Hospital. The above said contradiction is material in nature and raises a strong doubt over the presence of PW4 and PW5 at the spot and further creates a doubt upon the story of the prosecution regarding the manner of in which alleged incident had taken place.
PW4 has deposed to the effect that the accused Arvind Kumar ( since expired) and Mohd. Ashiq Mulla caught hold of him , accused Mohd. Ashiq Mulla told accused Bhure ' maar ise, bachne na paaye' and thereafter accused Bhure gave churi blows on his person due to which he received injuries on his abdomen, left arm and back side of the neck. In his crossexamination , PW4 has deposed that he did not know from where accused Bhure brought the knife with which he gave him blows. PW5 on the other hand has deposed in his crossexamination that accused Bhure gave churi blows on the person of PW4 which he had brought from the other house adjacent to the house where the accused persons were giving beating to them. It is not the case of prosecution nor it has been deposed by PW4 or PW5 in their examination in chief that accused Bhure during the case incident went to the adjacent house and from there brought the churi/ knife which was allegedly used to give stab blows on the person of PW4. It is a material improvement in the testimony of PW5 and also a material contradiction in the testimony of PW4 and PW5. It raises a strong doubt over the credibility of the testimonies of PW4 and PW5 and in turn the entire case of prosecution.
PW4 in his crossexamination deposed that accused Arvind Kumar ( since expired) had caught hold of him by his both hands from back side and accused Mohd. Ashiq Mulla tried to gag him from his neck with a rope . PW4 deposed FIR No. 119/09 P.S. Swaroop Nagar page 14 of 20 S/V Bhure @ Fakre Alam etc. that he had stated in his statement to the police that accused Mohd. Ashiq Mulla tried to gag him from his neck with a rope, upon which he was confronted with EX PW 4/DA ( statement dated 19.05.09 U/S 161 CrPC of PW4), where this fact was not recorded. PW5 has not deposed to the effect that accused Mohd. Ashiq Mulla tried to gag PW4 from his neck with a rope. No such alleged rope has also been recovered at the instance of any of the accused person in this case, nor any such corresponding injury has been proved on behalf of the prosecution upon the body of PW4 in his MLC EX PW 3/A. In this regard the testimony of PW3 Dr. Neeraj Chaudhary, CMO, BJRM Hospital, Delhi is important who has proved the MLC of PW4 as EX PW 3/A and has also mentioned in detail the injuries which were found on the person of PW4 during his medical examination. It is thus a material improvement in the testimony of PW4 and a material contradiction in the testimony of PW4 and PW5 and other prosecution witnesses. It also raises a strong doubt over the truthfulness of the testimony of PW4, PW5 and the entire case of prosecution.
PW4 has deposed to the effect in his crossexamination that he raised alarm when the accused gave knife blows to him and on hearing the same his wife and motherinlaw came at the spot. He also deposed that after reaching the spot the police recorded the statement of his wife namely Shabbo and the said fact was told to him by his wife. It is evident from the testimony of PW4 that as per him his wife and motherinlaw should also be material witnesses for the prosecution being the witnesses to the incident. The prosecution, as per record , has neither cited nor examined as witness the wife or mother in law of PW4. It is a major lacuna in the case of prosecution as it seems an attempt on behalf of FIR No. 119/09 P.S. Swaroop Nagar page 15 of 20 S/V Bhure @ Fakre Alam etc. IO to conceal the material witnesses from the court. It also raises an adverse inference over the case of prosecution.
PW5 has deposed in his examination in chief that accused Bhure gave churi blows on the person of PW4 and accused Bhure also attacked him with a churi upon which he sustained injuries with that churi on the thumb of his right hand. The testimony of PW4 is totally silent regarding giving of any churi blow by accused Bhure @ Fakre Alam to PW5 in his presence. It is again a material contradiction in the testimony of PW4 and PW5 which raises a cloud of doubt over their testimonies. The perusal of testimony of PW13 ( IO) shows that he has sought to prove the ME of PW5 as EX PW 13/C, however, it is evident that PW13 has only collected the said ME from the hospital and only a doctor is competent witness to prove the said MLC or ME. In facts the said ME of PW5 shall be deemed not to have been properly proved on record and is thus de exhibited. It again raises a strong doubt over the case of prosecution.
PW4 has deposed in his crossexamination that he and PW5 knew the accused persons for the last one year from the date of incident. PW4 denied that they (PW4 and PW5) had quarrel with the accused persons on earlier occasion also. PW5 to the contrary has deposed that he knew the accused persons 34 years prior to the incident and the accused persons had quarrel with him earlier also on one occasion but he did not make any complaint about the same to the police. Thus PW4 and PW5 have given contradictory testimonies regarding previous quarrel of PW5 with the accused persons. It is a material contradiction as it refers to the motive of commission of the crime .
All the above said contradictions and improvements are material in nature FIR No. 119/09 P.S. Swaroop Nagar page 16 of 20 S/V Bhure @ Fakre Alam etc. which raise a strong suspicion over the entire case of prosecution and also the credibility of PW4 and PW5 i.e. the material witnesses of the case. It is absolutely fatal to the case of prosecution.
14. As per the case of prosecution, the accused Bhure @ Fakre Alam got recovered one churi ( dagger) from his house which was kept by him beneath the almirah, the police prepared the sketch of said churi/ dagger which has been proved as EX PW 5/F and the said dagger was taken into possession vide seizure memo EX PW 5/E1. The said dagger has been proved as EX P1. PW5, an alleged injured of the case incident, however, has inter alia deposed in his crossexamination that the police seized the knife ( churi) at the spot at that time and in the later part of his testimony deposed that accused Bhure got recovered the knife from his house. PW11 HC Samarveer has deposed that the accused Bhure got recovered one dagger from beneath the almirah . PW13 ASI Shyam Sunder has also deposed that accused Bhure @ Fakre Alam got recovered one dagger type churi from the almirah of his jhuggi. In this regard, the testimony of PW5 who is a witness to EX PW 5/E1 becomes very material. The testimony of PW5 to the effect that the police seized the knife ( churi) at the spot at that time raises a strong doubt over the manner in which the said dagger ( knife/ churi), EX P1 i.e. weapon of offence, is shown to have been recovered at the instance of the accused Bhure @ Fakre Alam from his jhuggi. Further, the FSL report of Biology division dated 25.06.10 ( EX PY) also shows that although the said dagger ( knife) had human blood, however, it showed no reaction to ABO grouping i.e. it could not be ascertained as to whether it had the blood stains of PW4/PW5. PW13 has also deposed that he did not lift any finger prints from the said dagger. PW8 FIR No. 119/09 P.S. Swaroop Nagar page 17 of 20 S/V Bhure @ Fakre Alam etc. Dr. Lovnish Singh, LNJP Hospital who opined regarding the nature of injuries deposed in his crossexamination that he could not tell with what kind of weapon, the injured had sustained injuries. The prosecution has thus failed to connect the said dagger / knife/ churi with the case crime. It is absolutely fatal to the case of prosecution. The accused persons being entitled to benefit of doubt are entitled to acquittal in the present case.
15. It is the case of the prosecution that the whole incident started when PW5 was being given beatings by the accused persons. In this regard PW5 has deposed that when accused Bhure @ Fakre Alam asked him to give Rs. 10,000/, the said accused took him to his house where the remaining two accused persons were already present and there again accused Bhure @ Fakre Alam asked PW5 for cash of Rs. 10,000/ to which PW5 replied that he did not know whether PW4 had taken the said amount or not from him upon which accused Bhure @ Fakre Alam and Arvind Kumar ( since deceased) started giving beatings to PW5 with belts and fists. In his crossexamination, PW5 deposed that he had stated in his statement to the police that accused Bhure @ Fakre Alam and Arvind Kumar started giving beatings to him with belt and blow fists. PW5 was confronted with his statement EX PW 5/DA where this fact was not recorded . It is a material contradiction because as per the case of prosecution only upon giving of beatings by accused persons to PW5, the case incident occurred. The benefit of doubt accrued goes in favour of the accused persons.
16. PW5 has deposed in his examination in chief that accused Bhure @ Fakre Alam also attacked him with churi upon which he sustained injuries on the thumb of his right hand and he started shouting . He has also deposed that the public FIR No. 119/09 P.S. Swaroop Nagar page 18 of 20 S/V Bhure @ Fakre Alam etc. persons gathered and the accused persons ran away from the spot. He has deposed that thereafter the police reached at the spot and he along with PW4 were removed to BJRM Hospital. It is evident from the testimony of PW5 that before the police arrived at the spot, all the accused persons had run away from the spot. PW12 ASI Vijay Kumar who was posted as PCR Incharge has, however, deposed that on 15.05.09 ( date of case incident) after receiving a call he rushed to the spot on his PCR van and found two persons there in injured condition and he immediately removed those injured persons namely Musharraf ( PW4) and Arvind ( accused , since deceased) to BJRM Hospital, Jahangir Puri and admitted them there. It is a material contradiction in the testimony of PW5 and PW12 because as per PW12 when he reached at the spot then accused Arvind Kumar was present at the spot in an injured condition upon which he shifted him to BJRM Hospital, whereas PW5 in total contradiction has deposed that all the accused persons had run away from the spot and thereafter the police reached at the spot. PW5 has also deposed in his crossexamination that all the accused persons were present at the spot when the police reached there and the police at once arrested the accused from the spot. It is pertinent to note that as per the testimony of PW9 Ct. Manjeet Malik and PW13 ASI Shyam Sunder ( IO) the accused Arvind Kumar was arrested on 15.10.09 ( date of incident is dated 15.05.09) and not on 15.05.09 vide arrest memo EX PW 9/A. It is a material contradiction in the testimony of the above said material witnesses which cast a strong doubt over the entire case of prosecution. Further, the prosecution has failed to show any circumstance as to why the accused Arvind Kumar was let off on 15.05.09 when he was shifted to BJRM Hospital by PW12 and was again FIR No. 119/09 P.S. Swaroop Nagar page 19 of 20 S/V Bhure @ Fakre Alam etc. sought to be arrested on 15.10.09. The benefit of doubt goes in favour of the accused persons .
17. As discussed above, PW5 has admitted in his crossexamination that the accused persons had quarrel with him earlier also on one occasion. In view of the above said contradictions and improvements in the testimony of material witnesses, it is quite possible that due to the previous enmity the accused persons were falsely implicated by PW4 and PW5, who are real brothers, in this case.
18. In view of the above said discussion, the prosecution has failed to prove beyond reasonable doubt that on 15.05.09 at about 4 p.m. opposite Jhuggi No.5, Kalandar colony, Bhalswa Dairy, Delhi, the accused persons in furtherance of their common intention assaulted PW5 Nadeem and PW4 Musharraf with knife (EX P1) and attempted to murder him . The accused persons i.e. Bhure @ Fakre Alam and Mohd. Ashiq Mulla are entitled to acquittal and are thus acquitted U/S 307/34 IPC.
19. Bail bonds of the accused persons are cancelled and their sureties are discharged.
File be consigned to Record Room.
Announced in the open Court
On 31.05.2014 (AMIT BANSAL)
ASJ04(NW) Rohini Courts:Delhi
FIR No. 119/09 P.S. Swaroop Nagar page 20 of 20