Delhi District Court
State vs Julfikar on 23 September, 2023
In the Court of Shri Arvind Bansal
Additional Sessions Judge - 05 (Shahdara District)
Karkardooma Courts : Delhi
SC No. 1003/2016
FIR No.: 261/2016
U/s 308 IPC
Police Station: Welcome
State Versus
Julfikar
s/o Shri Asgar Ali
r/o H. No. 1404, Gali No. 01,
33 Foota Road, Kabir Nagar,
Delhi.
.... Accused
(a) Date of Institution: 17.08.2016
(b) Date of Offence: 18.06.2016
(c) Plea of accused: Pleaded not guilty & claimed trial
(e) Argument heard &
reserved for order: 23.09.2023
(f) Final Order: Convicted u/s 308 IPC.
(f) Date of Judgment: 23.09.2023
JUDGMENT
1. Accused is facing trial having been charged for the offence u/s 308 IPC. Shorn off unnecessary details, the facts leading to the initiation of criminal proceedings against the accused may be adumbrated as under:-
On 18.06.2016 at about at about 10:30 pm, near Shera ka Bagh, 33 Foota Road, Kabir Nagar, Delhi, accused caused bodily injury to complainant/injured Abid with an object like a small axe by hitting the same on his head and causing lacerated wound on his parieto State vs. Julfikar Page No. 1 of 14 occipital region, with such intention or knowledge and under such circumstances that if accused had caused death of complainant, he would have been guilty of culpable homicide not amounting to murder and thereby committed an offence punishable u/s 308 IPC.
On the statement of complainant, FIR u/s 308 IPC was registered against the accused. During investigation, he was formally arrested and his personal search memo and arrest memo were prepared.
2. After completion of investigation, chargesheet u/s 173 Cr.P.C was filed by IO on 17.08.2016 u/s 308 IPC. The Court took cognizance of the offence and proceeded against the accused. The case file was committed to the Court of Sessions vide order dated 26.08.2016 after completion of necessary legal formalities u/s 207 Cr.P.C. Upon receipt of chargesheet pursuant to order of learned District & Sessions Judge, Shahdara on 02.09.2016, matter was fixed for hearing on point of charge.
After hearing the arguments, Charge u/s 308 IPC was framed against the accused. Charge was explained to the accused in Hindi to which he pleaded not guilty and claimed trial. Thereafter, case was fixed for Prosecution Evidence.
During Prosecution Evidence, accused stopped appearing before the Court. Proceedings u/s 82 Cr.P.C were initiated against him. Vide order dated 10.10.2019, accused was declared Proclaimed Offender. After his arrest, the trial was resumed.
3. In support of its case, prosecution produced and examined eight witnesses.
PW-1 Abid deposed that he did not remember the exact date but at around 10:30 pm, he was returning from Shera ka Bagh, State vs. Julfikar Page No. 2 of 14 Masjid Abbu Bakar after offering Namaz. He was inside bagh. Accused Julfikar came from behind and dashed with him (takkar peeche se mari). He stated him 'dekh ke nahi chal sakte'. On hearing this, accused hit him on his head with kulhari (axe) like thing. Blood started oozing out from his head. In the meantime, Shadab who was behind him as he was also returning after offering namaz, ran behind accused. He made a call at number 100. Hearing hue and cry, his brother Javed, who was also offering namaz, came instantly. His brother apprehended the accused. He was taken to GTB Hospital. His statement Ex.PW1/A was recorded by police in the hospital. His brother had given the weapon of offence to police. He correctly identified the accused and case property Ex.PW-1/P-1 & Ex.PW-1/P-2 in the Court. Police prepared site plan Ex.PW1/B at his instance.
The witness was duly cross-examined.
PW-2 Dr. Sushil Bansotra proved MLC No. C-3834/2016 dated 18.06.2016 of patient/complainant/injured Abid as Ex.PW2/A. PW-3 Shadab deposed the same facts as deposed by PW1. He was cross-examined.
PW-4 Saurabh Pathak proved FSL result vide Report No. 2016/B-7259 and Bio No. 2120/2016 dated 19.10.2016 as Ex.PW4/A, and Serological Examination Report as Ex.PW4/B. PW-5 Javed deposed that on 18.06.2016 at about 10:30 pm, he alongwith his brother namely Abid Khan was coming from Masjid. Abid was walking at some distance ahead of him. Accused Julfikar came and hit kulhadi on the head of his brother Abid and State vs. Julfikar Page No. 3 of 14 started fleeing away from the spot alongwith kulhadi in his hand. He with the help of Shadab caught hold of accused Julfikar. Blood was oozing out of head of Abid. Shadab made a call at number 100. Meanwhile, he caught hold of the accused. He alongwith Abid went to GTB Hospital for treatment. IO alongwith one constable reached the spot. He handed over accused and kulhadi to IO. He also accompanied the IO to GTB Hospital and later returned to the spot with IO and his brother. IO kept kulhadi in a pullanda and sealed the same with the seal of GS and seized vide seizure memo Ex.PW5/A. Accused was arrested and personally searched vide memos Ex.PW5/B & Ex.PW5/C respectively. He correctly identified the accused and case property in the Court.
The witness was cross-examined.
PW-6 HC Jhabar Mal deposed that on 18.06.2016, in the night hours, one receipt of DD No. 65-B, he alongwith ASI Govind Sahay reached the spot i.e. near 33 Foota Road, near Shera Ka Bagh, Kabir Nagar, Delhi where they met Javed who produced the accused before them and also handed over one kulhari (axe). Javed informed them that Abid was taken to GTB Hospital. In the meantime, HC Prempal reached the spot. ASI Govind Sahay handed over the accused and axe to HC Prempal. He alongwith ASI Govind Sahay and Javed reached GTB Hospital and ASI Govind Sahay collected MLC of Abid and recorded his statement. Duty Constable HC Ramesh Chand handed over one sealed pullanda of clothes of injured Abid to ASI Govind Sahay who seized the same vide seizure memo Ex.PW6/A. ASI Govind Sahay prepared rukka and got the FIR registered through him. He correctly identified the accused in the Court.
The witness was duly cross-examined.
State vs. Julfikar Page No. 4 of 14 PW-7 ASI Prempal Singh deposed that on 18.06.2016, on receipt of DD No. 66B at about 10:40 pm, he went to spot and found ASI Govind Sahay and Ct. Jhabar Mal alongwith accused. ASI Govind Sahay handed over custody of accused and one axe to him and left for GTB Hospital. After some time, ASI Govind Sahay alongwith complainant Abid and his brother Javed reached the spot. IO prepared site plan at the instance of complainant. IO prepared seizure memo of axe. Accused was arrested and personally searched. The intimation of arrest of accused was given to his father Asgar Ali. He correctly identified the accused and case property.
The witness was duly cross-examined.
PW-8 SI Govind Sahay reiterated the assertions made by PW-6 HC Jhabar Mal. However, he also proved DD No. 65-B as Ex.PW8/A, Rukka as Ex.PW8/B, disclosure statement of accused as Ex.PW8/C, application seeking opinion regarding injury as Ex.PW8/D and FSL result vide his application as Ex.PW8/E. The witness was duly cross-examined.
4. Vide separate statement recorded u/s 294 Cr.P.C, accused admitted the genuineness of documents Ex.A-1 i.e. MLC No. 3834/2016 dated 18.06.2016 of injured Abid given by Dr. Amit Kumar, SR, Department of Neurology, GTB Hospital. Accused also stated that already recorded testimony of PW-4 Dr. Saurabh Pathak may be read as it is and he did not want to cross-examine him.
5. On completion of prosecution evidence, statement of accused was recorded u/s 313 Cr.P.C whereby all the incriminating State vs. Julfikar Page No. 5 of 14 material/evidence available on record was put to him. He denied the prosecution case in its entirety and stated that he was innocent and had been falsely and wrongly implicated in this case by complainant.
6 Final arguments advanced by Shri Shikhar Mahajan and Shri Pradeep Kumar, Ld. Addl. PP for State and Shri Roop Kishore, Ld. Amicus Curiae for accused heard.
7. It is the argument of Ld. Defence counsel that accused has been falsely implicated in this case by complainant in connivance with his brother Javed as Javed was not ready to send back the wife of accused after Halala. It is argued that PW-3 being known to complainant Abid and his brother Javed, deposed falsely against the accused and was never present at the spot. It is also the argument that there was previous enmity between Javed and accused as Javed had fired at accused and accused got an FIR against him. It is submitted that there are contradictions in the testimony of public as well as police witnesses which must be considered by the Court. Ld. Defence counsel urged the Court to acquit the accused of all charges.
8. Per contra, Ld. Addl. PP for State argued that not only PW1 Abid who suffered injured but also his friend PW-3 Shahdab and his brother PW-5 Javed supported the case of prosecution in all material particulars during their testimony. It is the argument that a composite reading of deposition of PW1, PW3 & PW5, MLC of injured as well as testimony of police officials would prove the offence u/s 308 IPC against accused. It is vociferously argued that all the ingredients of the charged offence stand duly proved against accused making him guilty of commission of offence u/s 308 IPC.
State vs. Julfikar Page No. 6 of 14
9. Submissions of both the parties heard at length. Entire available material carefully perused.
Appreciation of Evidence.
10. Prosecution is under obligation to prove all the ingredients of offence u/s 308 IPC to bring home the guilt of accused. Sec. 308 IPC is reproduced hereinbelow:
"308. Attempt to commit culpable homicide.--Whoever does any act with such intention or knowledge and under such circumstances that, if he by that act caused death, he would be guilty of culpable homicide not amounting to murder, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both; and, if hurt is caused to any person by such act, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both."
For the sake of convenience and understanding, the facts, allegations, evidence, defence and the appreciation thereupon has been categorized by this Court under the heads discussed as below.
Presence of Accused:
11. In the given factual conspectus, PW-1 categorically stated that when he was returning from Masjid Abu Bakar after offering namaz, accused came from backside and dashed with him. He also deposed that his friend Shadab who was walking behind him, immediately ran after accused. He further deposed with confirmity that his brother Javed came and apprehended the accused.
Similarly, PW-3 Shadab deposed that accused Julfikar who used to reside in same mohalla, came and told Abid that he was not walking properly. He deposed that he tried to apprehend the accused and meanwhile, Javed came and apprehended accused by running after State vs. Julfikar Page No. 7 of 14 him.
PW-5 Javed (brother of complainant) deposed on the same lines as PW-1 & PW-3. He deposed the factum of apprehending accused after the incident and handing over his custody to IO.
12. The aforesaid three witnesses were cross-examined by Ld. Amicus Curiae for accused. It is the defence of accused that he has been falsely implicated by complainant and his brother owing to previous enmity. The same defence was put to all the witnesses by Ld. Amicus Curiae during cross-examination, however, denied by all of them. No suggestion was put to any of the witnesses controverting the presence of accused at the spot at the time of alleged incident. There is no other material either to challenge or controvert the presence of accused at the spot in the form of any positive evidence or contradiction in the cross examination of witnesses. All the witnesses confirmed the presence of accused at the spot at the time of alleged incident. Their testimony in this regard is clear, consistent and without any contradiction. Considering the same, the presence of accused Julfikar at the spot stands established.
Causing injury to complainant:
13. PW-1 Abid, PW-3 Shadab and PW-5 Javed have categorically deposed that accused Julfikar attacked the complainant/injured Adil with an axe on his head making him suffer an injury, and blood started oozing out of his head.
Ld. Amicus Curiae for accused attempted to falsify the assertion of all the three witnesses by raising the following defences:
(a) that PW-1 & PW-5 being brothers, were interested in outcome of the matter in their favour;
State vs. Julfikar Page No. 8 of 14
(b) that PW-3 being their known, deposed falsely against accused;
(c) that PW-5 had married the previous wife of accused under Halala custom and she wanted to live with accused and in order to stop her, accused was falsely implicated:
(d) that there was previous enmity between PW-5 and accused, as the former had fired at accused and latter had got one FIR registered against him.
13.1 It is observed that all the above defences were put to witnesses only in the form of suggestions and all of them particularly PW-1 & PW-5 denied the same. No material either to support the allegation regarding previous FIR against PW-5 or that wife of PW-5 wanted to reside with accused was brought on record. In the opinion of this Court, the defence of the aforesaid nature cannot be proved merely by suggestions. No defence evidence was led by accused to bolster any of his defences. In the opinion of this Court, defence in the form of suggestions does not stand a ground vis-a-vis coherent and cogent testimony of public witnesses and cannot be considered even on the standard of 'preponderance of probabilities' to negate the case of prosecution. Further, the testimony of eye witnesses has remained uncontroverted and there is no reason to doubt the same as the defence has failed to point out any material contradiction therein.
In order to appreciate the testimony of an eye witness, the observations of Hon'ble Supreme Court in case titled 'Balu Sudam Khalde vs. The State Of Maharashtra' decided on 29.03.2023, wherein the guidelines to appreciate the testimony of eye witness were laid down, are befitting to be quoted:
"26. When the evidence of an injured eye-witness is to State vs. Julfikar Page No. 9 of 14 be appreciated, the under- noted legal principles enunciated by the Courts are required to be kept in mind:
(a) The presence of an injured eye-witness at the time and place of the occurrence cannot be doubted unless there are material contradictions in his deposition.
(b) Unless, it is otherwise established by the evidence, it must be believed that an injured witness would not allow the real culprits to escape and falsely implicate the accused.
(c) The evidence of injured witness has greater evidentiary value and unless compelling reasons exist, their statements are not to be discarded lightly.
(d) The evidence of injured witness cannot be doubted on account of some embellishment in natural conduct or minor contradictions.
(e) If there be any exaggeration or immaterial embellishments in the evidence of an injured witness, then such contradiction, exaggeration or embellishment should be discarded from the evidence of injured, but not the whole evidence.
(f) The broad substratum of the prosecution version must be taken into consideration and discrepancies which normally creep due to loss of memory with passage of time should be discarded."
14. In the light of aforesaid precedent and the unblemished evidence of the witnesses, the allegations of accused Julfikar hitting the complainant/injured on his head with an axe (kulhari jaisi nukili cheez) stand established beyond reasonable doubt.
Recovery of Weapon:
15 Apropos to above discussion, it is observed that after PW-1 was attacked, and he suffered injuries, PW-3 & PW-5 chased the accused to apprehend him. After catching hold of accused, the alleged weapon of offence i.e. axe (kulhari) was recovered from his possession.
State vs. Julfikar Page No. 10 of 14 Deposition of PW-3 and PW-5 is specific and categorical in this regard. The said weapon of offence was handed over to IO when he visited the spot. Seizure memo of axe Ex.PW5/A stood duly proved on record. IO/PW-8 also deposed that weapon of offence was handed over to him by PW-5 and he seized the same vide seizure memo Ex.PW5/A. Police witness PW-6 HCt. Jhabbar Mal also corroborated the case of prosecution in this regard.
As against recovery, it is the defence of accused that weapon of offence was falsely planted upon him by police officials in connivance with PW-1 & PW-5. Despite raising such a defence, nothing material could be elicited from the cross-examination either of public witnesses i.e. PW-1, PW-3 & PW-5 or police witnesses i.e. PW-6 & PW-8. The defence remained a bald assertion without any corroboration or contradiction in the testimony of any of the aforesaid witness.
Further, all the prosecution witnesses duly identified the weapon of offence i.e. axe when the same was produced before the Court during their respective depositions. The weapon is Ex.PW1/P-1.
16. Ld. Amicus Curiae for accused pointed out a few contradictions in the overall procedure followed after a PCR call was allegedly made by PW-3 Shadab. This Court has gone through the deposition of all the witnesses in detail. Such contradictions either in respect of preparation of site plan or place of preparation of certain documents are either minor in nature or are merely procedural not affecting the deposition of any of the public witnesses regarding the alleged incident or role of accused.
It is a settled preposition of law that any procedural lapse or minor contradiction in case of prosecution due to investigation have no bearing on the outcome of the case.
State vs. Julfikar Page No. 11 of 14 In this regard, the Court stands guided with the precedent laid down by the Hon'ble Supreme Court in Ambika Prasad v. State (Delhi Administration), AIR 2000 SC 718, wherein the Court has held that:
"Dealing with a case of negligence on the part of the investigating officer, this Court in Karnel Singh v. State of MP, 1995(5) SCC 518 observed that in a case of defective investigation it would not be proper to acquit the accused if the case is otherwise established conclusively because in that event it would tantamount to be falling in the hands of erring investigating officer. Similarly, in Ram Bihari Yadav v. State of Bihar, 1998(2) RCR(Crl.) 403 : 1998(4) SCC 517 para 13 this Court observed :-
"....In such cases, the story of the prosecution will have to be examined de hors such omissions and contaminated conduct of the officials otherwise the mischief which was deliberately done would be perpetuated and justice would be denied to the complainant party and this would obviously shake the confidence of the people not merely in the law- enforcing agency but also in the administration of justice."
Further in Paras Yadav and others v. State of Bihar, 1999(1) RCR(Crl.) 628 : 1999(2) SCC 126 this Court held :-
"...It may be that such lapse is committed designedly or because of negligence. Hence the prosecution evidence is required to be examined de hors such omissions to find out whether the said evidence is reliable or not....."
Thus, the minor discrepancies pointed out by Ld. Defence counsel cannot have any bearing on the case of prosecution.
Motive:
17. It has been vociferously put forth by Ld. Amicus Curiae that since PW-5 Javed had married the wife of accused as a part of Halala custom prevalent amongst the Muslim community, they had strained relationship, and PW-5 had once attempted to kill accused by firing a gun shot. It is argued that owing to previous enmity, PW-1 & State vs. Julfikar Page No. 12 of 14 PW-5 falsely implicated the accused.
After studied perusal of all the material particularly testimony of PW-1 & PW-5 vis-a-vis the available documents, Court is of the opinion that the defence of accused does not hold force.
18. It would not be out of place to observed that such a version or defence is a double edged weapon and can be an equally good reason for the accused to attack the complainant or his brother. It is certainly a possibility that accused wanted to take revenge upon PW-5 and in order thereof, he attacked PW-1 (brother of PW-5). The argument of Ld. Amicus Curiae that accused was falsely implicated by PW-1 and PW-5 owing to previous animosity cannot be accepted for another reason. In this regard, it is noted that PW-5, even if (supposedly) attacked accused Julfikar in the past and got married to his wife, was definitely in an advantageous position over the accused and there was no reason for him to falsely implicate him in such a matter. In fact, the opposite is more probable i.e. accused attacking PW-1 or PW-5 in order to prove his strength or dominance or seek re-marriage with wife of PW-5.
The motive as put forth by accused is not probable and thus, rejected.
Medical/Expert opinion:
19. The version of PW-1 regarding the injury suffered by him is duly corroborated by MLC Ex.PW2/A proved on record by Dr. Sushil Bansotra. The concerned doctor has noted the injury to be 'lacerated wound of the size 07 cms x 0.5 cms over left parieto occipital region'. The said injury was opined to be simple in nature. The weapon of offence was sent for expert examination. The forensic/chemical examiner vide his report Ex.PW4/A & Ex.PW4/B proved the said State vs. Julfikar Page No. 13 of 14 weapon of offence to be stained with human blood. There is no challenge either to the MLC or the expert report. Both the witnesses PW-2 & PW-4 were also not cross-examined on any material particular. The aforesaid documents corroborate the version of complainant/injured/PW-1.
It stands established that accused attacked a vital part of the body of complainant/victim with a weapon of offence like an axe. In the opinion of this Court, the attack was with such an intention or knowledge that if the said attack had caused the death of complainant, accused would have been guilt of culpable homicide not amounting to murder.
It is the defence of accused that complainant/victim suffered injury as he fell down on the road and not due to any attack by the accused. It is noted that as per MLC Ex.PW2/A, the size of injury suffered by victim is certainly by use of a weapon of the nature explained by all the witnesses and the one seized by IO. It is not possible for the victim/injured to have suffered such an injury by falling on the ground. Further, it is highly unlikely that any individual would suffer injury on the parieto occipital region by falling on the ground. Such a defence appears to be an after thought and cannot be considered.
20. In the light of aforesaid discussion, Court is of the opinion that offence u/s 308 IPC stands duly proved against accused Julfikar on the standard of beyond reasonable doubt and he is, thus, convicted for the offence u/s 308 IPC.
Announced in the open Court on 23.09.2023.
(ARVIND BANSAL) Additional Sessions Judge-05 (Shahdara) Karkardooka Courts, Delhi State vs. Julfikar Page No. 14 of 14