Delhi District Court
State vs . Furkan @ Furki Etc. on 5 March, 2013
IN THE COURT OF SH. DHIRENDRA RANA: METROPOLITAN
MAGISTRATE02/WEST : DELHI
STATE Vs. Furkan @ Furki etc.
FIR No. : 76/12
U/SEC : 186/332/353/34 IPC
PS Hari Nagar Delhi
Unique Case ID Number : 02401R0275642012
JUDGMENT
Serial No. of the case 2338/II/12
Date of commission of offence 24.02.2013
Date of institution of the case 07.06.2012
Name of the complainant V. D. Pushkarna Deputy
Superintendent, Central Jail No.1
Name of accused, parentage & address 1. Furkan @ Furki s/o Sh. Babu Khan r/o H. No. 1680, Gali No. 17, New Mustfabad, PS Gokul Puri, Delhi
2. Sikander s/o Mohd. Akhil r/o H. No. 69, Sector8, Friends Enclave, Sultan Puri, Delhi
3. Mohd. Nazir @ Nanhe s/o Mohd.
Sabir r/o H. No. 213, Chauhan Bangar, Brahm Puri, Delhi.
4. Shanu @ Kasim s/o Mohd. Sabir r/o H. No. 213, Chauhan Bangar, Brahmpuri, Delhi.
Offence complained or proved Section 186/332/353/34 IPC Plea of the accused Pleaded not guilty Date of arguments 21.02.2013 Final order Convicted Date of Judgment 05.03.2013 FIR No. 76/12 PS Hari Nagar Page No. 1 of 11
1. Vide this judgment I shall dispose off the present case filed by SI Ajay Kumar Gupta on the complaint of Sh. V. D. Pushkaran Deputy Superintendent Central Jail No. 3, Tihar against accused Furkan @ Furki, Sikander, Mohd. Nazir @ Nanhe and Shanu @ Kasim for committing offences under sections 186/332/353/34 of Indian Penal Code (hereinafter referred as IPC).
BRIEF FACTS:
2. Briefly stated facts of the case are that on 24.02.2012 at about 07:45 AM when accused persons were being searched by the TSP personnels as they had to be produced before the court, accused persons attacked TSP staff and assaulted them with fist, kicks and wooden stool. They also torn uniform of TSP personnel namely N. Bhaskar. He alongwith Hawaldar S. Lawrence received injuries during the incident. Accused Shanu and Sikander also received injuries during the incident. DD entry No. 49B dated 24.02.2012 was lodged at PS Hari Nagar. FIR under section 186/332/353/34 IPC was registered and investigation was handed over SI Surender Ahlawat. He arrested three accused persons except accused Furkan @ Furki who was subsequently arrested by second IO SI Ajay Kumar Gupta.
3. After completion of investigation, charge sheet was filed under sections 186/332/353/34 IPC against the accused persons on FIR No. 76/12 PS Hari Nagar Page No. 2 of 11 07.06.2012 and copies under section 207 CrPC supplied to accused persons on the same day. Charge for the offences under section 186/332/353/34 IPC was framed against the accused persons on 05.07.2012 to which they pleaded not guilty and claimed trial. Thereafter matter was put up for prosecution evidence. EVIDENCE RECORDED DURING TRIAL:
4. Prosecution has examined twelve witnesses to prove its case against the accused person.
5. PW1 V. D. Pushkaran, who is the complainant, exhibited his complaint as Ex. PW1/A.
6. PW2 Mandeep Singh Assistant Superintendent Central Jail No. 1 deposed that on 24.02.2012 at about 07:45 AM he received an information from intercom qua the quarrel when he reached at the spot he saw all the accused persons were fighting with TSP personnels and were causing injuries to Hawaldar S. Lawrence and N. Bhaskar.
In his cross examination he admitted that two CCTV cameras were installed in deodhi area at the time of incident. He further failed to disclose that which injury was inflicted by which accused on the injured persons.
7. PW3 Sukhbir Katariya Duty Officer Central Jail No. 8 deposed that on the date of incident he was on duty at deodhi. He fully supported FIR No. 76/12 PS Hari Nagar Page No. 3 of 11 the prosecution case in his examination in chief.
8. PW4 Ct. N. Bhaskar, who is one of the injured in the incident fully supported the prosecution case. He further deposed that his uniform was also torn by the accused persons. He correctly identified all accused persons but he could not tell their names.
In his cross examination he admitted that his torn uniform was not seized by the IO.
9. PW5 Ajay Kumar Darban, Warder and PW6 Amit Kumar, Warder deposed on the lines of prosecution case.
10.PW7 Hawaldar S. Lawrence and PW8 Ct. B. Yoharaja also supported the prosecution case. They correctly identified the accused persons. They stated that accused Sikandar hit PW7 with a wooden stool.
In their cross examination they stated that accused persons got violent at the time of search as they asked they should be searched at the time of coming from the court and not at the time of going from jail to court.
11. PW9 Ct. P. C. Jothi Kumr and PW10 Siva Nanaintha Perumal were also present at the spot at the time of incident and they also supported the prosecution case. They only identified the accused Furkan and Sikandar and failed to identify accused Shanu and Mohd. Nazir during their deposition.
12.PW11 SI Surender Ahlawat deposed about the investigation done by FIR No. 76/12 PS Hari Nagar Page No. 4 of 11 him. He exhibited arrest memos of Mohd. Nazir, Shanu and Sikandar as Ex. PW11/A, Ex. PW11/B and Ex. PW11/C, personal search memos as Ex. PW11/D, Ex. PW11/E and Ex. PW11/F, disclosure statements of all the three accused persons as Ex. PW11/G, Ex. PW11/H and Ex. PW11/I, notice under section 91 CrPC which was given by him to the police staff during investigation as Ex. PW11/J, record of the concerned jail officials as Ex. PW11/L1 and Ex. PW11/L2. He correctly identified all accused persons except accused Furkan who was not arrested by him.
In his cross examination he admitted that wooden stool used by the accused person in the incident and torn uniform were not seized by him during the investigation.
13.PW12 SI Ajay Kumar Gupta exhibited arrested memo of accused Furkan as Ex. PW12/A, his request for complaint under section 195 CrPC as Ex. PW12/B and complaint under section 195 CrPC as Ex. PW12/C.
14. Statement of accused persons under section 281 read with section 294 CrPC recorded on 12.10.2012 wherein all of them admitted the registration of FIR as Ex. P1, MLC No. 3231, 3230 and XRay report as Ex. P2, Ex. P3, Ex. P4 and Ex. P5. So, ASI Ravi Dutt and FIR No. 76/12 PS Hari Nagar Page No. 5 of 11 doctors, who examined injured persons, were not called for evidence.
15.Thereafter, prosecution evidence was closed vide order dated 11.02.2013. Statement of accused under section 281 read with section 313 CrPC was recorded on 13.02.2013 wherein they pleaded that they are innocent and have been falsely implicated as jail staff is annoyed with them due to complaints filed by against jail staff. They opted not to lead defence evidence.
16.I have heard the final arguments put forth by ld. APP for the State and Ld. Defence Counsel.
BRIEF REASONS FOR THE DECISION:
17. It is the case of the prosecution that all the accused persons in furtherance of their common intention attacked TSP staff who were discharging their functions in the capacity of public servant. Accused persons assaulted them and inflicted injuries on their person. Ld. LAC submits that it is the case of the prosecution that accused persons attacked the TSP personnels with a wooden stool but same stool has not been seized by the IO. Further is also alleged against the accused persons that they torn the uniform of Ct. N. Bhaskar during the incident. The torn uniform is also not seized by the IO. Therefore, non exhibition of wooden stool and torn uniform casts a doubt in the prosecution story that such incident ever occurred and accused persons were involved in the incident.
FIR No. 76/12 PS Hari Nagar Page No. 6 of 11
The points raised by Ld. LAC are correct. IO has not seized the wooden stool and torn shirt and that is why they are not being exhibited during the trial. But the question is whether follies committed by the IO can be allowed to dismantle the entire prosecution case which is otherwise proved by way of ocular evidence. All the prosecution witnesses who were present at the spot have deposed in unequivocal manner that accused persons attacked the TSP personnels and inflicted injuries on their person. It is also not disputed by the accused persons that they were not present at the spot. The only defence raised by them is that accused persons retaliated to misbehaviour of the TSP personnels. But what was the misbehaviour due to which accused persons became violent, has not been disclosed during the entire trial. In absence of any specific incident of misbehaviour, it cannot be presumed that accused persons attacked the TSP staff on provocation or same was done by them in their defence. Therefore, non exhibition of wooden stool and torn uniform is not so material that it will affect the case on its merits.
18.The next ground pleaded by Ld. LAC is that it is admitted by all the prosecution witnesses that incident occurred at deodhi. Two CCTV Cameras were installed at that place but footage of that incident has not been provided by the jail staff for the reason best known to them. The only reason behind is to brush the truth under the carpet. If FIR No. 76/12 PS Hari Nagar Page No. 7 of 11 CCTV footage has been provided, things would have been cleared and the role of both parties would have been clear. But by not providing the CCTV footage, jail staff withheld the factual position of incident and that shall be read against the prosecution and in favour of the accused persons.
It is clear that CCTV footage has not been provided by the jail staff and this is not the first time, same has not been provided due to one reason or other which are not acceptable by any stretch of imagination. But the point needs consideration is that whether deposition of prosecution witnesses can be ignored merely because CCTV footage is not provided by the jail staff. The answer is No. Defence has not denied the fact that accused persons were involved in the alleged incident. It is also not the case of the defence that accused persons were attacked by the TSP Personnels and then they had retaliated. Had it been the case suggestions would have been given to the prosecution witnesses. All the prosecution witnesses have deposed that accused persons became furious without any rhyme or reason and inflicted injuries on the injured persons and that is enough to prove the allegations against them. Absence of CCTV footage is not so strong ground so that accused persons can be acquitted.
19.The next ground pleaded by Ld. LAC is that PW9 and PW10 have only identified accused Furkan @ Furki and Sikander and failed to FIR No. 76/12 PS Hari Nagar Page No. 8 of 11 identify the remaining accused. Therefore, it is doubtful as there are severe contradictions between the prosecution witnesses to the fact that whether accused Mohd. Nazir and Shanu were involved in the incident or not.
The ground pleaded by Ld. LAC is also of no avail. The manner in which PW9 and PW10 have deposed reflects that PW9 and PW10 deposed in an honest manner and without any ill will towards the accused persons. The manner in which they have deposed inspires confidence of the court and accused persons cannot be acquitted on this ground only alone. Moreover, non identification by PW9 and PW10 has become in significant as presence of all the four accused persons has been admitted by the defence. It is not the case of the defence that accused Mohd. Nazir and Shanu were not present at the time of incident. Therefore, ground pleaded by LAC is likely to be shelved.
20.Hence, keeping in view the above discussion and material available on record, it is proved by the prosecution that all the accused persons attacked the TSP personnels when they were discharging their duties in the capacity of public servant without any rhyme or reason and inflicted injuries on the person of N. Bhaskar and S. Lawrence in furtherance of their common intention. Prosecution has proved its case against all the accused persons to the hilt. Therefore, all accused FIR No. 76/12 PS Hari Nagar Page No. 9 of 11 persons are convicted for committing offences under section 186/332/353/34 IPC.
21. Before parting with this case, I would like to comment on the working condition of CCTV cameras in Jail premises. This is a matter of concern for the system that CCTV footages are not being provided by the jail staff as and when such uncalled incidents are reported to the police. When the entire Tihar jail is covered by the CCTV cameras, then how come these cameras stops working at the time of incident and jail officials merely states that cameras were not working at that time and no CCTV footage is available of the incident. The purpose of installation of CCTV cameras in the jail premises is seems to be defeated. I have not seen even a single instance where CCTV footage has been provided by the jail authorities so that truth can be find out. In case CCTV footage is not available due to nonfunctioning of camera's, liability of the officer or agency concerned shall be fixed who are responsible/incharge of CCTV camera's maintenance at that particular time. In the present case, the incident occurred at deodhi where two cameras were installed but CCTV footage has not been provided. This court has sent the judgment in case FIR No. 14/12 titled as State Vs. Kulwinder to the worthy DG, Prison, Tihar to look into the matter but no communication has been done till date by the Jail Administration.
FIR No. 76/12 PS Hari Nagar Page No. 10 of 11
22.Copy of this order be sent to worthy DG, Tihar Jail for her perusal and necessary action on her part. Non functioning of CCTV cameras at crucial moments are matter of great concern. Therefore, worthy DG Prison is advised to look into the matter at priority basis and take necessary action at her end.
23.Matter be listed for arguments on sentence on 07.03.2013.
ANNOUNCED IN THE OPEN COURT DHIRENDRA RANA
ON 05th March, 2013 MM02/WEST DELHI
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