Delhi District Court
State vs (1) Mohd. Samim Saifi on 9 September, 2016
IN THE COURT OF SH. REETESH SINGH, ASJ-02/FTC
NEW DELHI DISTRICT PATIALA HOUSE COURTS, DELHI
Sessions Case No. 26 of 2016
Filing No. 16386/2016
State Versus (1) Mohd. Samim Saifi
S/o Mohd. Saifi
R/o. RZ-9/252, Gali No.6, Jagdamba Vihar,
West Sagarpur, Delhi.
(2) Amir Saifi
S/o Mohd. Ilyas
R/o. RZ-9/252, Gali No.6, Jagdamba Vihar,
West Sagarpur, Delhi.
(3) Amit @ Sonu Singh @ Bhuri
S/o Suresh Singh
R/o. RZ-250/251, Gali No.6/7, Jagdamba Vihar,
West Sagarpur, Delhi.
FIR No. : 262 of 2016
U/s: 308/34 IPC
PS: Sagarpur
Date of institution of the case : 15.07.2016
Date when the case reserved for judgment : 08.09.2016
Date of announcement of judgment : 09.09.2016
JUDGMENT
1. Mohd. Samim Saifi, Amir Saifi and Amit @ Sonu Singh @ Bhuri are facing trial in this case for offences punishable under Sections 308 and 392 both read with Section 34 of the Indian Penal Code (IPC).
2. The case set up by the prosecution as per police report under Section 173 (2) of the Code of Criminal Procedure (Cr.P.C.) is that Nawab Khan, the complainant in this case, was running a shop of electrical articles by the name of M/s Star Powers at Gali No.10, Jagdamba Vihar, Near J.R. Public School, Delhi. On 24.04.2016 at about 11am, when the complainant was present at his shop, Mohd.
State vs. Mohd. Samim Saifi & Ors.
FIR No. 262 of 2016, PS: Sagarpur 1/8 Samim Saifi came there with a battery of a Honda Splendor motorcycle for getting it charged. Mohd. Samim Saifi left the battery with the complainant for charging. The battery could not be charged as there was no electricity in the premises of the complainant and st about 4pm, Mohd. Samim Saifi came to the shop of the complainant and took back his battery. However, at about 7pm, Mohd. Samim Saifi again came to the shop of the complainant in an inebriated condition and asked for his battery which he had already taken back. The complainant told Mohd. Samim Saifi that he had already taken back his battery but he started abusing the complainant and also made a mobile phone call in pursuance of which Amir Saifi and Amit @ Sonu Singh @ Bhuri also came to the shop of the complainant. All three of them started beating the complainant by kicks and fists and Amir Saifi picked up a brick and assaulted the complainant on his head with it. By that time, people in the locality had gathered. All the three accused persons then fled from the shop of the complainant after looting his wrist watch and cash of Rs.7000/- from the money chest of the shop.
3. The complainant made a PCR call from his mobile phone and some other persons also called the police. DD No.30A was recorded in PS Sagarpur which was assigned to SI Chetan Mandia for inquiry who along with Ct. Krishan reached the place of the incident. However before they had arrived, a PCR van had taken the complainant to DDU Hospital for treatment. In DDU Hospital, the complainant was examined by Dr. Rohit Kumar, Junior Resident vide MLC No. 2978 in the presence of Dr. Dhananjay Kumar, CMO, DDU Hospital. The complainant was referred to the Radiology Department for X-ray examination. The X-ray plates of the face, shoulder and upper arm of the complainant were examined by Dr. Amit, Senior Resident, DDU Hospital, Department of Radiology who did not find any bone injury to have been suffered by the complainant. Intimation of the said MLC was given to PS Sagarpur from the hospital which was recorded vide DD No.32A. Information of the same was given to SI Chetan Mandia who then proceeded to DDU Hospital with Ct Krishan. SI Chetan Mandia met the complainant and collected his MLC. He recorded the statement of the complainant, prepared the rukka and sent it for registration of the State vs. Mohd. Samim Saifi & Ors.
FIR No. 262 of 2016, PS: Sagarpur 2/8 FIR through Ct Krishan. SI Chetan Mandia along with the complainant then reached the place of the incident and prepared a site plan at the instance of the complainant. Ct Krishan after getting the FIR registered joined the complainant at the place of the incident with the copy of the FIR and the rukka. While at the spot of the incident, SI Chetan Mandia received secret information from an informer that Mohd. Samim Saifi was present in his house. SI Chetan Mandia along with Ct Krishan and the informer went to the residence of Mohd. Samim from where he was apprehended. Mohd. Samim Saifi was interrogated and arrested at about 4am of 25.04.2016 and brought to the police station. He admitted to his involvement in the incident and his disclosure statement was recorded. Mohd. Samim Saifi disclosed that his brother Amir Saifi and Amit @ Sonu Singh @ Bhuri were the other two persons who had assaulted the complainant. Efforts were made to apprehend them but they could not be found.
4. Mohd. Samim Saifi was produced before the Court of the Ld. MM by SI Chetan Mandia in muffled face and an application was moved for conducting his Test Identification Parade (TIP) but he refused to participate in the same. Police custody of one day of the Mohd. Samim Saifi was granted and he was brought to the police station. In the evening of 25.04.2016, the complainant had also come to the police station and he identified Mohd. Samim Saifi as the person which had assaulted him regarding which a supplementary statement of the complainant was recorded. Mohd. Samim Saifi was thereafter remanded to judicial custody.
5. On 07.06.2016, Amir Saifi and Amit @ Sonu Singh @ Bhuri surrendered themselves in PS Sagarpur. Both admitted to their involvement in the incident and were arrested. Their disclosure statements were recorded. They individually pointed out the place of the incident. They were then produced before the Ld. MM in muffled face and an application was moved for conducting their TIP but both refused to participate in the same. They were then remanded to judicial custody.
6. During the course of the investigation, the complainant was called upon to produce proof of purchase of his watch and cash of Rs.7000/- but he was unable State vs. Mohd. Samim Saifi & Ors.
FIR No. 262 of 2016, PS: Sagarpur 3/8 to do so. The IO therefore removed Section 380 IPC from the FIR. After concluding the investigation charge-sheet was filed in the Court.
7. By order dated 15.07.2016, charges as described above were framed against all the accused persons to which they pleaded not guilty and claimed trial. In all prosecution examined eight witnesses to prove the charges against the accused persons. Dr. Dhananjay Kumar was examined as PW1, ASI Balwan Singh, Duty officer, PS Sagarpur was examined as PW2, Sh. Lovleen, Ld.MM who conducted the TIP proceedings of the accused persons was examined as PW3, Sh. Nawab Khan, the complainant was examined as PW4, Ct Krishan who had accompanied the IO during investigation was examined as PW5, the IO SI Chetan Mandia was examined as PW6, Dr Amit was examined as PW7 and Dr. Rohit was examined as PW8.
8. After conclusion of the trial, statements of the accused persons under Section 313 of the Cr.P.C. were recorded in which they claimed false implication at the hands of the complainant. Mohd. Samim Saifi had stated that he had gone to the shop of the complainant on the day of the incident but it was the complainant who himself had assaulted him with a screw driver on his chest and when he tried to save himself, the complainant while chasing him slipped and suffered injuries on his own. The accused persons did not wish to lead evidence in defence.
9. Sh. Salim Khan, Ld. Addl. PP for the State submitted that there was sufficient evidence on record to prove the charges which were framed against the accused persons. He submitted that the complainant duly identified all the three accused persons and was consistent during cross examination. The accused Mohd. Samim Saifi had admitted that he had gone to the shop of the complainant on the day of the incident but had given a false explanation regarding the manner in which complainant had suffered injuries. He further submitted that the medical evidence on record corroborated the version of the complainant.
State vs. Mohd. Samim Saifi & Ors.
FIR No. 262 of 2016, PS: Sagarpur 4/8
10. On the other hand, Sh.Ankit Aggarwal, Ld. Counsel for the accused persons had submitted that there was no medical evidence or statement of any of the doctors to the effect that the complainant had suffered any grievous injuries. He submitted that no fracture or bone injury was found in any of the X-rays of the complainant. The injuries of the complainant were simple in nature. He submitted that the complainant was known to Mohd. Samim Saifi and had falsely implicated him and the other accused persons in connivance with the police.
11. I have heard Ld. Addl. PP for the State and the Ld. Defence Counsel and perused the record of this case. My findings are as under:-
SECTION 308 READ WITH SECTION 34 OF THE IPC
12. The manner in which the incident has taken place has already been explained in the preceding paragraphs of this judgment. Nawab Khan, the complainant was examined as PW4. In his examination in chief, he has deposed as per version of the prosecution. He stated that despite taking back his battery, Mohd. Shamim Saifi came back in the evening at about 7 pm asking for his battery. That time Mohd. Shamim Saifi was under the influence of liquor and despite being told that he had taken his battery back, Mohd. Shamim Saifi quarreled with him and then called Amir Saifi and Amit @ Sonu and all the three persons started beating him. Amir Saifi threw a brick at the complainant which hit his head. PW 4 has duly identified all the accused persons and ascribed specific roles to them. There is nothing in the cross-examination from which the version of PW 4 can be doubted. During the cross-examination of PW 4 suggestion was given to him that it was not Mohd. Shamim Saifi who had assaulted the complainant, rather it was the complainant who had assaulted Mohd. Shamim Saifi with his screw driver and when Mohd. Shamim Saifi tried to run away to save himself, the complainant ran after him, slipped and suffered the injury on his head. The presence of the accused persons at the place of the incident has not been denied. There is no evidence on the record which could show that Mohd. Shamim Saifi had suffered any injury in his stomach as State vs. Mohd. Samim Saifi & Ors.
FIR No. 262 of 2016, PS: Sagarpur 5/8 alleged. It therefore stands proved that it were Mohd. Shamim Saifi, Amir Saifi and Amit @ Sonu who had assaulted the complainant due to which he suffered injuries.
13. So far as the medical evidence of the injuries suffered by the complainant are concerned, Dr. Rohit, Junior Resident had examined Nawab Khan vide MLC Ex.PW1/A in the presence of Dr. Dhananjay Kumar, CMO, DDU Hospital. The complainant was found to have suffered a Contused Lacerated Wound (CLW) over the left parietal region of size 4cmx05.cm with tenderness on his left shoulder, left forearm and left mandible. The complainant was recommended to get himself reviewed in the ENT / Neuro / Dental / Ortho departments. X-ray of the complainant was conducted.
14. PW7 Dr. Amit, Senior Resident, Department of Radiology studied the X- ray plates of Nawab Khan of his face and shoulder but did not find any bone injury. The MLC Ex.PW1/A under heading "Nature of Injury" mentions 'under observation'. No final opinion was collected by the IO regarding nature of the injury. Thus the MLC by itself does not record the nature of the injury suffered by the complainant. However from the medical evidence of this case it is apparent that the complainant has not suffered any fracture on any part of his body. He was not hospitalized for treatment. The injuries suffered by him were thus simple in nature.
15. Question which arises is whether the offence under section 308 IPC is made out in this case? The ingredients of Section 308 of the IPC are doing of an act with such intention or knowledge and under such circumstances that if by that act death is caused, the person would be guilty of culpable homicide not amounting to murder. Section 299 of the IPC defines 'culpable homicide' as causing 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.
State vs. Mohd. Samim Saifi & Ors.
FIR No. 262 of 2016, PS: Sagarpur 6/8
16. In the case of Bishan Singh & Anr. vs. State reported in 2007 (4) Crimes 177 (SC), the Hon'ble Supreme Court acquitted the appellants before it for the charge under Section 308 of the IPC on the ground that no grievous injury was caused to any vital part of the body and therefore it could not be said that the accused had the intention or the knowledge to cause death. In the case of P.K. Ghosh vs. State reported in 2008 (2) JCC 834, the Hon'ble High Court was pleased to discharge the petitioner before it for the charge under Section 308 of the IPC on the ground that the injury which was caused was simple in nature.
17. The injuries suffered by the complainant in this case are simple in nature. Even if a brick was used to cause the said injury on the head, the nature of the injury does not indicate that the accused had any intention or knowledge to cause death. Therefore, the offence under section 308 IPC is not made out in this case.
18. Even though the offence under section 308 IPC is not made out, the accused however have been proved to have caused simple injuries to the complainant. The accused Mohd. Samim Saifi, Amir Saifi and Amit @ Sonu Singh @ Bhuri are therefore convicted for the offence punishable under Section 323 read with Section 34 of the IPC.
SECTION 392 READ WITH SECTION 34 OF THE IPC
19. PW4 / Complainant in his examination in chief has deposed that all the three accused persons fled from his shop after taking away his wrist watch and cash of Rs.7000/- from his money chest. In cross-examination, he admitted that he did not have any record or bill of purchase of his wrist watch. The IO of this case SI Chetan Mandia was examined as PW6. In his examination in chief, he has stated that during the course of investigation, he had given a notice under Section 91 of the Cr.P.C. to the complainant to explain the source of looted property cash of Rs.7,000/- and wrist watch but the complainant was not able to produce it. In these facts and circumstances it is doubtful whether the accused persons had looted the said State vs. Mohd. Samim Saifi & Ors.
FIR No. 262 of 2016, PS: Sagarpur 7/8 property of the complainant. The accused Mohd. Samim Saifi, Amir Saifi and Amit @ Sonu Singh @ Bhuri are thus acquitted for the offence punishable under Section 392 read with Section 34 of the IPC.
CONCLUSION
20. The net result of the above discussion is as under:-
(i) Mohd. Samim Saifi, Amir Saifi and Amit @ Sonu Singh @ Bhuri are convicted for the offence punishable under Section 323 read with Section 34 of the IPC. They stand acquitted for the offence punishable under Section 308 of the IPC.
(ii) Mohd. Samim Saifi, Amir Saifi and Amit @ Sonu Singh @ Bhuri are acquitted for the offence punishable under Section 392 read with Section 34 of the IPC Announced in the open Court (REETESH SINGH) on 9th September, 2016 ASJ-02/FTC, PHC/NDD 09.09.2016 State vs. Mohd. Samim Saifi & Ors.
FIR No. 262 of 2016, PS: Sagarpur 8/8