Delhi District Court
The State vs Mohd Shafiq on 27 November, 2014
D.O.D 27.11.2014 FIR No. 344/11
P.S S.P Badli
u/s 307/34
IN THE COURT OF SH RAJESH KUMAR GOEL:
ADDITIONAL SESSION JUDGE -5 (NORTH),
ROHINI , DELHI
SESSION CASE NO. : 72/14
UID NO . : 02404R03553242011
FIR No : 344/11
P. S : S.P Badli
u/s 307/34 IPC
The State versus Mohd Shafiq
S/O Shariff Mohd Shah
R/o Manjit Ka Makan, near Railway
Line, Raja Vihar, Delhi.
Date of committal to session court : 03.04.2012
Date of argument : 27.11.2014
Date of order : 27.11.2014
JUDGMENT
1. Brief facts of the case as born out from the chargesheet are that injured Rashid , who was fruit seller, got married his son namely Istihak with the sister of accused Shafiq. There was some matrimonial dispute between Ishtiyak and Sarun( sister of accused ). She was residing with her parents. On 18.9.2011 at about 6:30 pm, Rashid is shown to have made a call to the accused Shafiq due to which all of SC No.72/14 State vs Mohd Shafiq (Page 1 of 23 ) D.O.D 27.11.2014 FIR No. 344/11 P.S S.P Badli u/s 307/34 sudden, Shafiq became angry and threatened Rashid to kill him. Accused came to the rehri of injured Rashid along with one Chapatu(not arrested). Chapatu (not arrested) caught hold Rashid and accused Shafiq inflicted injury on the person of Rashid with the help of knife due to which injured Rashid fell down . Public persons gathered there and gave beatings to accused Shafiq. injured Rashid and accused Shafiq were removed to the hospital by PCR.
2. Information about the aforesaid incident was recorded at P.S S.P Badli vide DD no.43 A . On receipt of said DD, ASI Balbir Singh reached at the spot and came to know that injured has been removed to Ambedkar Hospital. He visited the hospital and recorded statement of injured Rashid on the basis of which rukka was prepared and present FIR was got registered. Accused Shafiq was also found admitted in the hospital. He was arrested. His personal search was carried out and he made disclosure statement.
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D.O.D 27.11.2014 FIR No. 344/11
P.S S.P Badli
u/s 307/34
3. It is alleged that at the instance of the
accused Shafiq weapon of offence i.e knife was
recovered from near the wall of the office of Devender which was concealed under the mud. Sketch of the knife was prepared and it was sealed and seized .After the completion of investigation, accused was chargesheeted for offence 307/34 IPC .
4. Vide order dated 13.3.2012, Ld MM took the cognizance of the offence and subsequently, since the offence u/s 307 IPC was exclusively triable by the court of sessions, therefore , vide order dated 03.04.2012 case was committed to the court of sessions .
5. Vide order dated 1.5.2012, ld predecessor of this court decided the charge and accordingly, charge u/s 307/34 IPC was framed against the accused Mohd Shafiq. Accused pleaded not guilty and claimed to be tried.
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D.O.D 27.11.2014 FIR No. 344/11
P.S S.P Badli
u/s 307/34
6. In order to prove its case, prosecution has examined as many as thirteen witnesses.
7. PW1 Mohd Ishtiyak is the son of the injured Rashid. He deposed that one Munna informed him telephonically that Chapatu( not arrested) had caught hold his father and accused Shafiq had inflicted knife injury on his father. He reached at the spot and found his father in injured condition. He made inquiry from his father as to how he received injury. His father told him that Chapatu(not arrested) caught hold him and Shafiq inflicted injury with the knife. PW1 further deposed that PCR reached there and removed his father and accused Shafiq to the BSA hospital where statement of his father ExPW1/A was recorded in his presence. He further deposed that his father remained admitted in the hospital for 10-15 days . Thereafter, he was discharged but his father was not well . He again readmitted him in the same hospital after about 10-15 days but he was not properly cured, hence he took him to another hospital and when he was taking his father to another SC No.72/14 State vs Mohd Shafiq (Page 4 of 23 ) D.O.D 27.11.2014 FIR No. 344/11 P.S S.P Badli u/s 307/34 hospital , he expired. PW1 is shown to have identified the dead body of his father vide statement ExPW1/B. PW1 was cross examined by the ld counsel for the accused.
8. PW2 Dr. Rajiv Ranjan appeared on behalf of Dr. Naresh and deposed that as per the noting of Dr. Naresh ExPW2/A, no bony injury was found on the X-Ray films of injured Rashid and nature of injury was simple.
9. PW3 Dr. Uday Kumar appeared on behalf of Dr. Vipin and deposed that as per the noting of Dr. Vipin ExPW3/B , nature of injury of Rashid was simple.
10. PW4 Dr.V.K Jha conducted postmortem on the body of the deceased and prepared his report ExPW4/A.
11. PW5 Dr. Deepti Bhalla, had examined injured Rashid on 18.9.2011 vide MLC ExPW5/A. SC No.72/14 State vs Mohd Shafiq (Page 5 of 23 ) D.O.D 27.11.2014 FIR No. 344/11 P.S S.P Badli u/s 307/34
12. PW6 Dr. Alok Kumar appeared on behalf of Dr. Harkesh and proved ENT note ExPW6/A and ExPW6/B on the MLC of injured Rashid ExPW5/A.
13. PW7 Dr. Prashant proved treatment papers ExPW7/A of injured Rashid from 22.10.2011 to 7.11.2011.
14. PW8 HC Mahender Singh is the duty officer who proved the registration of FIR ExPW8/A and his endorsement as ExPW8/B .
15. PW9 Const Naresh was with the IO ASI Balbir Singh during investigation and he has deposed more or less on the lines of PW10 ASI Balbir.
16. PW10 ASI Balbir Singh deposed that on 18.9.2011, on receipt of DD no.43 A ExPW10/A, he along with Ct. Naresh reached at Samaipur Chowk where he came to know that injured has already been shifted to Ambedkar hospital. He along with Ct. Naresh reached BSA Hospital where injured Rashid SC No.72/14 State vs Mohd Shafiq (Page 6 of 23 ) D.O.D 27.11.2014 FIR No. 344/11 P.S S.P Badli u/s 307/34 was found under treatment and he recorded his statement ExPW1/A. Said statement was read over to injured Rashid and thereafter he put his thumb impression at point A . PW10 further deposed that he made endorsement on the said statement and prepared rukka ExPW10/B and got registered the FIR through Ct. Naresh. Accused Mohd Shafiq was also found under treatment in the hospital. Later on accused Mohd Shafiq was discharged and he along with ct. Naresh and accused Mohd Shafiq reached at the spot. Accused Mohd Shafiq was arrested vide arrest memo ExPW9/A and his personal search was conducted vide memo ExPW9/B . Disclosure statement ExPW9/C of accused Mohd Shafiq was also recorded. Accused pointed out towards the place of incident and pointing out memo ExPW9/D was also prepared. Accused Mohd Shafiq got recovered the weapon of offence i.e knife from near the wall of the office of Devender concealed under the mud. Sketch of the knife ExPW9/E was prepared and said knife was ket in cloth parcel and sealed with the seal of BSV and seized vide seizure memo ExPW9/F. PW10 SC No.72/14 State vs Mohd Shafiq (Page 7 of 23 ) D.O.D 27.11.2014 FIR No. 344/11 P.S S.P Badli u/s 307/34 further deposed that Ishtiyak son of injured Rashid met him at the spot. He prepared site plan ExPW10/C at his instance . He deposited the case property with MHC(M). later on investigation was handed over to S.I Bhupesh.
17. PW11 S.I Bhupesh Kumar deposed that on 7.11.2011, investigation of this case was handed over to him . On the same day , S.I Kulbir of P.S S.P Badli also received a PCR call regarding a dead body of someone is lying in the jhuggi of Samaypur Badli and that PCR call was made by the son of deceased. S.I Kulbir informed him that dead body was related to the present case. The present case had earlier been investigated by ASI Balbir Singh and he has already arrested accused Mohd Shafiq. He reached at the jhuggi's of Samaypur Badli where , he met one Ishtiyak son of deceased and he told him that deceased has died due to stab injuries received by his father which were caused by accused on 18.9.2011 and that deceased was hospitalized at that time and that he was discharged SC No.72/14 State vs Mohd Shafiq (Page 8 of 23 ) D.O.D 27.11.2014 FIR No. 344/11 P.S S.P Badli u/s 307/34 from the hospital and that he was getting treatment in OPD thereafter.
18. PW11 further deposed that he shifted the dead body to the BJRM hospital . On 08.11.2011, the postmortem of the dead body of the deceased Rashid son of Saffar Ali was conducted. After his postmortem, doctor handed over a sealed parcel alongwith sample seal having seal of BJRM hospital which was seized vide seizure memo ExPW11/A . The dead body was identified by Ishtiyak son of deceased and Waris , son in law of deceased vide memo's ExPW1/B and ExPW11/B respectively . He also obtained postmortem report ExPW 4/A . The dead body after postmortem was handed over to son of deceased vide receipt ExPW1/C .
19. PW11 further deposed that he made a search for the other accused namely Chapatu but he could not be found as his address was not known being vegabond . He sent the case property to FSL .
Thereafter he obtained FSL results ExPW11/E and
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D.O.D 27.11.2014 FIR No. 344/11
P.S S.P Badli
u/s 307/34
PW11/F and on the basis of those reports , he
obtained the final opinion from Dr. V.K Jha of BJRM hospital.
20. PW12 Dr. Rajender Kumar , Dy Director FSL , Rohini proved the FSL report ExPW11/E and ExPW11/F.
21. PW13 S.I Kulbir deposed that on 7.11.2011 , on receipt of DD no.45B, Ex.PW13/A, he along with Ct. Pawan reached at Jhuggi Samaypur Delhi where complainant namely Ishtiyak met him and he informed him that one accused Chapatu had attacked on his father with the knife and he received injuries and he had expired and he also told that a case has already been registered in PS Samai Pur Badli in this regard. He informed the concerned IO SI Bhupesh and dead body of Rashid was sent to mortuary BJRM hospital through Ct. Pawan. He made the DD number 90B, in this regard and same is Ex.PW13/B. SC No.72/14 State vs Mohd Shafiq (Page 10 of 23 ) D.O.D 27.11.2014 FIR No. 344/11 P.S S.P Badli u/s 307/34
22. Thereafter, statement of accused u/s 313 Cr. PC was recorded. Accused denied the allegations against him. He did not opt to lead any evidence in his defence.
23. I have heard the Ld counsel for the accused and Ld Addl. P P for the state . I have also perused the record very carefully.
24. Accused is facing trial for the offence u/s 307/34 IPC. In order to bring the case within the ambit of section 307 IPC, it must be shown that accused acted with such intention or knowledge or under such circumstances that if by that act he caused death, he would be guilty of murder . So the intention or the knowledge to commit murder must exist. It is sufficient to justify the conviction u/s 307 IPC if there is present an intent coupled with some overt act in execution there off.
25. In the present case, although prosecution has examined thirteen witnesses but their SC No.72/14 State vs Mohd Shafiq (Page 11 of 23 ) D.O.D 27.11.2014 FIR No. 344/11 P.S S.P Badli u/s 307/34 testimonies are not sufficient to convict the accused for the alleged offence. PW2 Dr. Rajiv Ranjan, PW 3 Dr. Uday Kumar, PW4 Dr. V.K Jha, PW5 Dr. Deepti Bhalla, PW6 Dr. Alok Kumar and PW7 Dr. Prashant are the witness to the medical evidence only . They are not the eye witnessses.
26. PW8 HC Mahender Singh and PW9 Constable Naresh are just formal witnesses. They have assisted the IO during the investigation in one way or other.
27. PW11 S.I Bhupesh Kumar has also said nothing against the accused . He took over the investigation after 07.11.2011 i.e after the death of injured Rashid. In these circumstances , testimonies of PW1 Ishtiyak and PW10 ASI Balbir Singh remains. Rather, I would say, that entire prosecution case rested upon the testimony of PW1 Ishtiyak as injured Rashid has not appeared in the witness box since expired.
SC No.72/14 State vs Mohd Shafiq (Page 12 of 23 )
D.O.D 27.11.2014 FIR No. 344/11
P.S S.P Badli
u/s 307/34
28. Now, it is to be seen whether PW1 Mohd
Ishtiyak had reached at the spot immediately after
the incident and his father injured Rashid told him
the entire facts as deposed by him (PW1). It is also to be looked into whether the testimony of PW1 Mohd Ishtiyak is relevant or not.
29. PW1 Mohd Ishtiyak deposed that one Munna informed him on phone that accused Chapatu (not arrested) has caught hold his father and accused Shafiq has inflicted knife injury to his father and at that time he was present at his factory. But during his cross examination, he admitted that he had not stated to the police that Munna had informed him on phone. A court question was put to him to know "
whether he can tell full name and particulars of Munna ?". He replied that " His name is Munna and he is living near his jhuggi in Samaypur Badli". Said Munna has neither been made a witness nor examined nor his antecedents could be brought on record.
30. PW1 Mohd Ishtiyak further deposed that SC No.72/14 State vs Mohd Shafiq (Page 13 of 23 ) D.O.D 27.11.2014 FIR No. 344/11 P.S S.P Badli u/s 307/34 after receipt of said information, he reached at the spot and found his father in injured condition who told him about the incident, as stated herein above. PW1 further deposed that in the meanwhile PCR reached at the spot and PCR took his father and accused Shafiq to Dr. BSA Hospital. He reached Dr. BSA Hospital alone. This cannot be believed. Had it been so , definitely he should have been with his father at the time when his father had been removed to the hospital by PCR. Admittedly, his father was in injured condition. How, one can leave his father unattended in such a situation ? No explanation has come on record why he had gone alone and not accompanied his father. The conduct of the PW1 Mohd Ishtiyak is relevant fact and cannot be ignored.
31. According to the case of the prosecution injured Rashid and accused Mohd Shafiq were removed to the BSA hospital by PCR. Injured Rashid was examined by Dr. Deepati Bhalla (PW5) vide MLC ExPW5/A. Said MLC ExPW5/A indicates that injured Rashid was brought to the hospital by HC Suraj Bhan, SC No.72/14 State vs Mohd Shafiq (Page 14 of 23 ) D.O.D 27.11.2014 FIR No. 344/11 P.S S.P Badli u/s 307/34 PCR. There is no mention that patient was brought by PW1 Ishtiyak or he was present in the hospital at that time.
32. Further, PW1 deposed that police made inquiries from his father in the hospital and recorded his statement in his presence and that statement is ExPW1/A . But PW10 ASI Balbir Singh, who is the IO of the present case deposed that he reached the hospital where injured Rashid was found under treatment and fit for statement. He recorded his statement ExPW1/A and his statement was read over to him and thereafter, he put his thumb impression at point A on the basis of which he is shown to have prepared the rukka. PW10 nowhere stated that PW1 Ishtiyak was present there in the hospital. Statement ExPW1/A of injured Rashid is on the record. Said statement is also silent about the presence of PW1 Ishtiyak in the hospital. In that statement it has not been mentioned that immediately after the incident, PW1 Ishtiyak reached at the spot and injured Rashid told him the entire facts. Had PW1 Ishtiyak been SC No.72/14 State vs Mohd Shafiq (Page 15 of 23 ) D.O.D 27.11.2014 FIR No. 344/11 P.S S.P Badli u/s 307/34 present there, there was no occasion for injured Rashid not to mention his presence in the complaint lodged by him.
33. From the testimony of PW1, an impression has been created that his statement was also recorded in the hospital as during his cross examination, he admitted that his first statement was recorded by the police in BSA Hospital but it is no where the case of the prosecution that statement of PW1 Ishtiyak was recorded in the hospital. PW10 ASI Balbir Singh deposed that PW1 Ishtiyak met him at the spot and he prepared the site plan ExPW10/A at his instance and recorded his statement which falsifies the claim of PW1 that his statement was recorded in the hospital.
34. From the aforesaid discussion , it is abundantly clear that PW1 Ishtiyak has not come with the true facts and it would not be safe to place reliance on his testimony. A serious doubt has been created about presence of PW1 or having reached SC No.72/14 State vs Mohd Shafiq (Page 16 of 23 ) D.O.D 27.11.2014 FIR No. 344/11 P.S S.P Badli u/s 307/34 at the spot immediately after the incident and also his presence in the hospital. It appears that since injured Rashid had expired during the pendency of the present case, he tried to cover up the case of the prosecution by making a new story. In these circumstances, the testimony of PW1 is hereby rejected as not reliable.
35. It is true that medical and scientific evidence adduced by the prosecution supports that injured Rashid sustained incised wounds and knife was one of the possible weapon of offence. This is the only evidence against the accused. Knife is shown to have been recovered at the instance of the accused from near the wall of the office of Devender which was concealed under the mud. At the most , this is one of the circumstance against the accused .
36. Now, the question arises whether only on the basis of this sole circumstance i.e recovery of a possible weapon of offence at the instance of the accused Mohd Shafiq, can accused be convicted for the offence of attempt to murder. The simple answer is' NO. In this regard , I SC No.72/14 State vs Mohd Shafiq (Page 17 of 23 ) D.O.D 27.11.2014 FIR No. 344/11 P.S S.P Badli u/s 307/34 may mention the authority titled as , Deepak Chaddha vs State of Delhi, 2012 (1) JCC 540 wherein Hon'ble High Court of Delhi held " We do not propose to deal with the purity of the evidence relating to the two recoveries i.e the recovery of the shirt and the knife at the instance of the appellant, for the reason, in the decisions reported as Kallo Passi Vs State, 2009(2) vs Chhatrasing & Ors., AIR 1977 SC 1753; Surjit Singh vs State of Punjab, AIR 1994 SC 110; Deva Singh Vs State of Rajasthan , 1999 CriLJ 265 , & Prabhoo vs State of UP, AIR 1963 SC 1113 the Supreme Court held that in the absence of other incriminating evidence, the circumstances of seizure of blood stained clothes at the instance of the accused as also the recovery of a possible weapon of offence at the instance of the accused are wholly in sufficient to sustain the charge of murder against the accused".
37. Here it is pertinent to mention that death of Rashid is not fact in issue before this court. It is not the case of the prosecution that death of Rashid took place due to the act of the accused. However, evidence adduced by the prosecution would go to show that the incident in question did not lead to the death of Rashid.
38. Record would indicate that in the present SC No.72/14 State vs Mohd Shafiq (Page 18 of 23 ) D.O.D 27.11.2014 FIR No. 344/11 P.S S.P Badli u/s 307/34 case injured Rashid expired on 7.11.2011 and the date of incident is 18.9.2011 i.e after about 2 months. Injured Rashid is shown to have been examined by PW5 Dr. Deepti Bhalla vide MLC ExPW5/A. Dr. Deepti Bhalla noticed following external injuries :-
● An incised wound approximately 3X1X0.5 cms in size present over the left thumb. Active bleeding present from the wound. Tenderness present over the left thumb. ● An incised wound approximately 3X 1X0.5 cms in size present over the left chin.
● Two incised wounds approximately 5 X 1.5X.5 and 3X1X.5 cms in size present over the left upper neck. Active bleeding present from the wounds.
● A superficial incised wound approximately 2X0.2 cms in size present over the left lower neck. ● A deep incised wound approximately 7X 1.5X1 cms in size was present extending from centre of the neck to the right side of the neck. Active bleeding present from the neck.
39. Dr. V.K Jha(PW4), medical officer, has conducted the postmortem on the body of the deceased and also noticed following external injuries:
● Bandage applied over lower end of left leg and foot.
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D.O.D 27.11.2014 FIR No. 344/11
P.S S.P Badli
u/s 307/34
On opening the bandage, there was open wound
of the size 8 cms X 2 cms X muscle deep on left foot, thick yellowish green puss was coming out. ● Healed scar wound on front of neck, right and left side of neck.
● Heal wound on chin.
40. A careful examination of aforesaid two reports would indicate that injuries received by the Rashid due to the incident dated 18.9.2011 have no linkage with the injuries due to which Rashid expired. As per the postmortem report, the case of death was septicemic shock as a result of cellulites of left leg. Rashid had not received any injury on the left leg due to the incident in question.
41. Moreover, it is evident that during the investigation of the present case, S.I Bhupesh Kumar (PW11) made a request to the medical superintendent, Dr. BSA Hospital and sought opinion on the following queries :
● What is the cause of leg cellulites . ● Can cellulites will cause septicemic shock if not treated properly.
● The injuries which are mentioned in MLC NO.
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D.O.D 27.11.2014 FIR No. 344/11
P.S S.P Badli
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8931/11 can cause cellulites.
● As per the postmortem report the autopsy surgeon
has mentioned the cause of death is septicemic shock as result of leg cellulites whether this can be cause by trauma or natural disease process. ● Is any connection between the injuries in MLC no.
8931/11 and the treatment of leg cellulites, if yes/no then how?
● Any other relevant information which is useful for the purpose of investigation.
42. The aforesaid queries were replied by Dr. Rekha Dewan, MS (Surgery) as follows:
● Cause of leg cellulites can not be pin pointed in this case as pt. had not given any definite history of trauma to left leg and also there was no mark of external injury over left leg.
● Cellulites any where in body if not treated properly can cause spread of infection and can lead to septicemia /septicemic shock.
● Injuries mentioned in MLC no.8931/11 over neck( four in no. ) and one on the thumb can cause cellulites at the site of inquiry only.
● Lt leg cellulites with septicemic shock may be caused by either trauma or natural disease process. ● As per the medical record the inquiries in MLC no.
8931/11 are in the neck and thumb for which pt was admitted and treated at BSA hospital ENT Dept and was discharged. There is no apparent connection between treatment of leg cellulites. ● As per the test reports of Rashid his kidney function was grossly damaged at the time of admission which did not show any improvement even with treatment, and as per his ultrasound report his liver function was also compromised. Compromised liver and kidney functions could have been the cause for poor response to treatment.
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43. It is true that aforesaid reply has not been proved by examining Ms. Rekha Dewan but it is the document of prosecution and in my opinion if some document has been filed by the prosecution, which was collected during investigation and if favours the accused , it can be relied upon.
44. From the aforesaid reply, entire mist regarding the cause of death of Rashid, is settled. It has been clearly mention that there is no apparent linkage between the cause of death and the injuries sustained by the injured Rashid due to the incident of 18.9.2011.
45. In the background of the fact , the prosecution having failed to establish and prove the allegations against the accused and having failed to bring on record sufficient evidence against him to connect him conclusively to the commission of the offence, benefit of doubt is being given to the accused Mohd Shafiq, who is hereby acquitted of the charge under Section 307/34 IPC. His surety SC No.72/14 State vs Mohd Shafiq (Page 22 of 23 ) D.O.D 27.11.2014 FIR No. 344/11 P.S S.P Badli u/s 307/34 stands discharged.
46. File be consigned to Record Room after compliance of section 437(A) CrPC.
Announced in the open (Rajesh Kumar Goel) Court today i.e 27.11.2014 ASJ-5, North Rohini Court SC No.72/14 State vs Mohd Shafiq (Page 23 of 23 )