Delhi District Court
Fir No. 47/06; State vs . Mujmil & Anr. Page 1 Of 21 on 4 July, 2012
IN THE COURT OF SH. YASHWANT KUMAR : ADDL. SESSIONS
JUDGE03:NW:ROHINI:DELHI
SESSIONS CASE NO. 61/11
FIR No. 47/06
P.S. Rohini
U/S: 186/353/324/308/34 IPC
STATE
Versus
(1) MUJMIL
s/o Wasim
r/o A175, Vijay Vihar
Ph1, near gas agency Sec5,
Rohini, Delhi
(2) MOHD. IMRAN
s/o Mohd. Yunus Qureshi
r/o H. No. 1061,
Meenakshi Chowk,
near Shalimar Hotel,
Muzaffar Nagar, UP
Date of Institution: 23122006
Date of arguments: 04052012
Date of judgement: 18052012
J U D G M E N T
1. The case of the Prosecution, in brief, is that on 16012006 HC Dharmender was posted in Traffic Police and was FIR No. 47/06; State Vs. Mujmil & Anr. Page 1 of 21 on duty at Rohini Circle. On that day, he was posted on crane duty and at about 4 pm when he was going towards Naharpur from the road in front of Jaipur Golden Hospital, he saw that a mechanic had parked his car in a wrong manner in front of NDPL office, Rohini. He asked 34 times from PA system to remove the car as the car was wrongly parked there and because of this, traffic movement was obstructed and general public was having difficulty in passing through there. Complainant Dharmender requested the two persons who were standing near the car to remove the car but those persons replied that he should mind his own business. When HC Dharmender again requested those persons to remove the car from there, they got annoyed and said the complainant to remove the car if he has courage. HC Dharmender asked the crane staff to tow the car and when the car was being towed away, those two persons started abusing them. When HC Dharmender intervened to resolve the dispute, those two persons pounced upon him and one of them caught the collar of his uniform and started beating him. One of those boys cried "Imran mar sale ko" and thereafter they both started beating him with fist and leg blows. In the meanwhile, boy named Imran asked Mujmil to caught hold complainant and Imran picked up a wooden danda lying there and hit the same on the left FIR No. 47/06; State Vs. Mujmil & Anr. Page 2 of 21 side of the forehead of complainant. When complainant tried to rescue him, accused Mujmil gave a bite on his hand and they both threw him on the ground and started beating him badly due to which he became unconscious. Police was informed and DD no. 28A was registered. PCR shifted the injured to Hospital. Accused Mujmil was arrested and later on accused Mohd. Imran was also arrested. FIR was registered u/s 186/353/324/308/34 IPC. Wooden danda was recovered. After completion of investigation, chargesheet was filed in the court u/s 186/353/324/308/34 IPC.
2. After compliance of Section 207 Cr.P.C., the case was committed to Sessions Court. Charge under Section 186/353/308/34 IPC was framed against both accused to which they pleaded not guilty to the charges and claimed trial.
3. In order to prove its case, Prosecution examined 12 witnesses. PW1 is the complainant HC Dharmender who has proved his complaint as Ex. PW1/A and also identified a wooden log of about one feet Ex. P1 which accused had hit him on his forehead. PW2 HC Ranbir Singh who was Duty Officer at PS Rohini on 16012006 from 4 pm to 12 pm and proved DD entry no. 28A as Ex. PW2/A, FIR no. 43/06 as Ex. PW2/B and his endorsement on the rukka as Ex. PW2/C. PW3 is H P S Virk, DCP, Anti Riot Cell, FIR No. 47/06; State Vs. Mujmil & Anr. Page 3 of 21 Malviya Nagar, Delhi who made a complaint u/s 195 Cr.P.C. to the Ld. ACMM, Rohini against the accused which is Ex. PW3/A. PW4 is Dr. N. K. Singh, CMO, BSA Hospital, Rohini, Delhi who examined the patient/ complainant / PW1 and found CLW over right eyebrow and prepared MLC Ex. PW4/A. PW5 is Dr. Ashutosh, SR, BSA Hospital, Rohini, Delhi and identified the writing and signature of Dr. Manish as he worked with him in the hospital. Dr. Manish examined the patient /PW1 and made his endorsement from point X to X on MLC Ex. PW4/A. PW6 is Subodh who was driving the crane no. DL1LE4299 and was with HC Dharmender on 16012006 at about 3:30 4 pm. PW6 proved seizure memo Ex. PW6/A of gutka, disclosure statement of accused Mujmil as Ex. PW6/B, arrest memo of accused Mujmil as Ex. PW6/C and personal search memo as Ex. PW6/D, arrest memo of accused Imran as Ex. PW6/E and his personal search memo as Ex. PW6/F, and also identified the wooden gutka already Ex. P1. PW7 Chandan who was working as Helper on the said crane on 16012006. PW8 is W/Ct. Anuradha whose chief was partly recorded, therefore, her part chief recorded as PW8 on 28092011 shall not be read in evidence at the time of deciding this case. PW9 is HC Vijay who was posted with the PCR van Commander 45, which was stationed at Vijay Vihar, near FIR No. 47/06; State Vs. Mujmil & Anr. Page 4 of 21 Mother Dairy on 16012006. At around 3:47 pm, he received a wireless message from the Control Room and reached along with his staff immediately in front of NDPL office, Sector3, Rohini, Delhi. PW10 is HC Raj Kumar who was also posted at PS Rohini on 16012006 and on receipt of DD no. 38A, he along with ASI Ramphool Singh reached sector3, Rohini, opposite NDPL office. PW11 is SI Ramphool Singh who recorded the statement of PW1/ Dharmender and prepared the rukka Ex. PW11/A, site plan Ex. PW11/B on the pointing out of Subodh. PW11 identified accused Imran and further proved the Ex. PW6/A to PW6/F. PW11 also proved the complaint u/s 195 Cr.P.C. already Ex. PW3/A and identified the gutka as Ex. P1. PW12 is W/ Ct. Anuradha who was posted as Ct. in Traffic Unit, Rohini Circle, Mangolpuri, Delhi on 16012006 and proved the DD no. 6 as Mark PW12/A which was prepared by her and handed over the same to the IO.
4. Statements of the accused were recorded u/s 313 Cr.P.C. wherein they denied all the allegations made against them. The accused opted to lead evidence in their defence and examined DW1 Balbir Soni who is the electrician and he knows the accused persons for the last 1516 years as they are his neighbourers. DW2 Raj Kumar is the photographer and owner of Shubham Studio who FIR No. 47/06; State Vs. Mujmil & Anr. Page 5 of 21 proved his visiting cards as Ex. DW2/A, two photographs of the shop of accused persons taken by him as Ex. DW2/B and DW2/C and also digital CD as Ex. DW2/D. DW3 Ram Vilas Sharma is a shoe maker having his shop near the shop of accused persons and he knows the accused persons for the last 67 years.
5. Ld. counsel for the accused has argued that there are the contradictions in the testimony of PWs. PW1 had earlier came at the shop of accused for illegal gratification from them. PW4 and PW5 have not proved the injury which may attract the provisions u/s 308 IPC since one injury was only stated i.e. CLW over right eyebrow and not the major injury over the head. There is no such finding in medical report that there was head injury. In medical report, there is no tooth biting. The Prosecution has failed to prove that there was head injury of the complainant and even otherwise, there is nothing on record which could suggest that there was a head injury upon the complainant/ PW1. PW6 had no knowledge in which area he was driving the crane. PW6 admitted the presence of public persons and despite the fact that there were about 5060 persons present there, but no one was named as public witness. The Ld. Defence counsel has further argued that if PW1 was in uniform but uniform has not been filed on record. During cross FIR No. 47/06; State Vs. Mujmil & Anr. Page 6 of 21 examination by Ld. APP, PW6 was not able to identify the wooden gutka. PW6 was not having driving license. No register produced in the court. It is also strange fact that when scuffle was going on between the accused and the complainant, PW6 remained sitting in the crane. PW9 resiled from his own previous statement. There was no shutter installed towards the gali / street. Gutka is planted one. The complainant was not on duty and there was no quarrel at that time. There is no corroboration of medical documents with the allegation. Therefore, the case is entirely false as the accused persons did not pay the illegal gratification to HC Dharmender/ complainant.
6. Whereas, the Ld. APP for the State has argued that the witnesses examined by the Prosecution have duly proved the case against the accused persons. The complainant has categorically stated that the accused persons had given fist and kick blows and accused Imran had hit the wooden log on the left side of his forehead and accused Mujmil bite him on his left hand. The Ld. Predecessor court also observed that there is 3/4 inch mark on the base of pointer finger of the left hand. The complainant became unconscious and then was removed to the hospital. The Ld. APP for the State has further argued that the doctors PW4 and PW5 FIR No. 47/06; State Vs. Mujmil & Anr. Page 7 of 21 have also proved the MLC of the complainant as Ex. PW4/A and endorsement of Dr. Manish upon the MLC respectively. So far as allegation of illegal gratification is concerned, there is neither a PCR call nor any complaint in writing on behalf of the accused in this regard. There is no previous enmity with the accused persons. There are the minor contradictions which do not go to the root of the case.
7. I have considered the above arguments of the Ld. Defence counsel and the Ld. APP for the State and have carefully gone through the records. Let us discuss and examine the evidence led in this case as to whether the accused had committed the offence as per the charge framed against them. PW1 Dharmender Singh was posted at Traffic Circle Rohini West as HC on 16012006. On that day, he was on duty on the crane and at about 4 pm, PW1, driver of the crane Subodh who was driving the crane and one helper namely Chandan were going towards Naharpur via Jaipur Golden Hospital. When they reached opposite office of NDPL, they noticed that a car was parked on the main road. On the PA system, PW1 announced that car be removed from the main road but the accused persons present in the court who were standing near the car did not remove it. The accused asked PW1 to FIR No. 47/06; State Vs. Mujmil & Anr. Page 8 of 21 mind his own business and they will remove the car as per their own wish. PW1 then asked his helper to tow away the car. PW1 deposed that the moment helper tried to tow away the car, both the accused present in the court started grappling with him and did not allow him to tow away the car and abused him. PW1 then got down from the crane and asked the accused persons to remove the car. PW1 further deposed that one of the accused namely Mujmil present in the court caught hold of uniform of PW1 and accused Mujmil and Imran started beating him. When PW1 tried to free himself from the accused persons, on this accused Mujmil said 'Imran mar sale ko' and on this, both the accused had given fist and kick blows. Accused Imran had picked one wooden log and hit the wooden log on left side of forehead of PW1. Accused Mujmil bite PW1 on his left hand. There was also the court observation at the time of recording of the statement of PW1 that there is 3/ 4 inch mark on the base of pointer finger of the left hand. PW1 became unconscious and someone removed him to the hospital. Local police came in the BSA hospital and thereafter PW1 was referred to Trauma Centre. Police got CT scan and thereafter they came back to the hospital. Police recorded statement of PW1 as Ex. PW1/A. One sealed parcel sealed with the seal of RPS was opened in the FIR No. 47/06; State Vs. Mujmil & Anr. Page 9 of 21 court which contained wooden log of about 1 feet which was shown to PW1 who identified it as P1 which the accused had hit PW1 on his forehead. PW1 denied the suggestion that he was given beatings by the public persons and not by the accused persons.
8. PW1, in his crossexamination, denied the suggestion that he had gone to collect monthly from the shop of the accused persons. The accused have not proved on record any PCR call or complaint in writing to the effect that the complainant went to the shop of the accused for illegal gratification. Even otherwise, DW1 in his crossexamination admitted that he did not recollect the date when HC Dharmender had demanded gratification amount from the accused persons and even DW1 could not tell how much amount was demanded by him. DW1 was also not aware whether the accused persons made a report in the PS. DW1 deposed in his crossexamination that the photographs Ex. DW2/B and C showing the shop of Baba Motors (sale, purchase and finance) are not in the possession of accused persons at present and the same is owned by some other person. DW2 also did not know as to who is the owner of Baba Motors shop and whose photographs he has clicked. DW3 also admitted that he was not aware about the date of incident. Meaning thereby, DW1 to DW3 have not supported the case of FIR No. 47/06; State Vs. Mujmil & Anr. Page 10 of 21 accused persons to the effect that both the accused were not present at spot on the date of incident.
9. During crossexamination, PW1 deposed that he was in police uniform on 16012006 and he was having his Icard. PW1 also deposed that they do not carry any register with them. PW1 identified the accused persons at the time of recording of his statement in the court. PW1 also deposed in his crossexamination that his jacket and shirt got torn. PW1 also denied the suggestion that he had not gone to the spot with the crane or that he was not carrying his identity card. PW2 and PW9 to PW12 are the police officials and IO. PW2 proved on record DD entry no. 28A as Ex. PW2/A, FIR no. 43/06 as Ex. PW2/B, endorsement on the rukka as Ex. PW2/C. PW3 proved the complaint u/s 195 Cr.P.C. Ex. PW3/A. Despite opportunity given, the Ld. Defence counsel did not prefer to crossexamine PW2 and PW3. PW6 proved seizure memo Ex. PW6/A of gutka, disclosure statement of accused Mujmil Ex. PW6/B, arrest memo of accused Mujmil Ex. PW6/C, personal search memo as Ex. PW6/D, arrest memo of accused Imran Ex. PW6/E and his personal search memo Ex. PW6/F and also identified the wooden gutka already Ex. P1. PW6 denied the suggestion that there was no car parked in front of electricity office. FIR No. 47/06; State Vs. Mujmil & Anr. Page 11 of 21 PW6 also denied the suggestion that during the entire incident, he remained seated on driving seat of the crane and he did not intervene in the matter. PW6 was resiling from his previous statement, therefore, the Ld. APP for the State crossexamined him with the permission of Ld. Predecessor court. Meaning thereby, he was declared hostile by the Ld. APP but it is a settled proposition of law that evidence of hostile witness cannot be rejected in totality merely because Prosecution chose to treat him as hostile and cross examined him but it can be accepted to the extent that the version is found to be dependable on a careful scrutiny thereof. While taking this view, I am supported with the judgement reported as Radha Mohan Singh Vs. State of UP, AIR 2006 SC 95.
10. PW7 deposed that driver Subodh also came down after hearing noise of quarrel. PW9 also identified the accused Mujmil present in the court who was beating the complainant and PW9 also identified the accused Imran present in the court who escaped from the spot. PW10 recorded the statement of PW1 on 16012006 which is the date of incident. PW10 denied the suggestion that no such incident had taken place or for that reason no uniform could be recovered. PW10 further denied the suggestion that gutka has been planted on the accused. PW10 categorically deposed that accused FIR No. 47/06; State Vs. Mujmil & Anr. Page 12 of 21 Mujmil and Imran got recovered a wooden gutka lying in the corner of the shop of Imran which was measuring about one feet. PW11 proved the rukka Ex. PW11/A, site plan Ex. PW11/B and PW11 identified the gutka as Ex. P1. PW11 also deposed in his cross examination that the alleged gutka was recovered at around 1 am on 17012006. PW12 proved the DD no. 6 as Mark PW12/A. PW12 denied the suggestion that she was not on duty on 16012006 or that no such register exists in the record regarding entry made vide DD no. 6.
11. During crossexamination, PW1 deposed that some public persons had gathered at the spot and one of the public persons made a call at 100 number. It is argued that no independent and public person was joined during investigation of the case. Therefore, testimony of police officials are also not trustworthy. It is relevant to mention here that the public persons are reluctant to become witnesses of criminal trial. It has been held in a catena of judgements by the Hon'ble Supreme Court and Hon'ble High Court of Delhi that merely because public witnesses are not joined in a case, the Prosecution case cannot be thrown out. In such circumstances, no benefit can be given to the accused for not joining of independent public witnesses. In this context, a FIR No. 47/06; State Vs. Mujmil & Anr. Page 13 of 21 reliance can be had upon the judgements reported as State of UP Vs. Anil Singh AIR 1988 SC 1998; Ambika Prasad & Anr. Vs. State 2002 (2) Crimes 63 (SC); Dr. Krishna Pal & Anr. Vs. State of UP 1996 (7) SCC 194. Further, there is no principle of law that without corroboration by independent witnesses, testimonies of police officials cannot be relied upon. The presumption that a person acts honestly applies as much in favour of police personnel as to the other person. Thus, it would not be a proper judicial approach to distrust and suspect the testimonies of police officials without good grounds. The statements made by the police officials as witnesses should be given same weight as statements made by other witnesses. In this context, a reliance can be placed upon the judgments reported as Karamjit Singh Vs. State (Delhi Administration), AIR 2003 SC 1311 and Ritesh Kumar Vs. State of Goa, 2006 Cri. LJ (NOC) 61 (Bom). In the present case, though there are some contradictions in the testimony of the said PWs yet these contradictions are minor contradictions and do not go to the root or core of this case. In this context, a reliance is placed upon the judgement reported as State of UP Vs. Krishna Master & ors. 2010 Cri. L. J. 3889, it was held by the Hon'ble Supreme Court that minor discrepancies, not touching core of case, cannot be ground FIR No. 47/06; State Vs. Mujmil & Anr. Page 14 of 21 for rejection of evidence in entirety.
12. PW4 Dr. N. K. Singh, CMO, BSA hospital, Rohini, Delhi examined PW1 and found CLW over right eyebrow and prepared the MLC Ex. PW4/A. However, PW1 was referred to SR Surgery for further management and expert opinion. PW5 Dr. Ashutosh, SR, BSA Hospital, Rohini, Delhi identified the writing and signature of Dr. Manish who examined PW1 and found the injuries of PW1 that at the time of examination, loss of consciousness was present but there was no history of vomiting, ENT bleed and convulsion; eye opening was normal but not responding to pain and verbal command and contusion was present on both the eyes. On examination, the findings suggested that PW1 was probably having head injury at the time of admission due to which PW1 was transferred to Trauma Centre for CT Scan and further management to neuro surgery department. Despite opportunity given, the Ld. Defence counsel did not opt to crossexamine PW4 and PW5. During crossexamination, PW6 categorically deposed that both the accused gave fist and leg blows to HC Dharmender and accused hit wooden gutka to the head of HC Dharmender and blood oozing out from the head of HC Dharmender. PW7 denied in his cross examination that no beating took place in his presence. FIR No. 47/06; State Vs. Mujmil & Anr. Page 15 of 21
13. It is a settled law that accused can be convicted on the basis of sole testimony of one credible witness. In this context, I would place a reliance upon the judgement reported in the case of Kartik Malhar Vs. State of Bihar, 1996 (1) RCR (Crl.) 308, it was held by Hon'ble Supreme Court that conviction can be based on the sole testimony of a single eyewitness provided his credibility is not shaken and court finds him truthful witness. In the present case, PW1 Dharmender is himself the injured and therefore the most primary witness of occurrence and there is no reason to disbelieve his testimony. Section 308 IPC postulates doing of an act with such intention or knowledge and under such circumstances that if one by that act caused death, he would be guilty of culpable homicide not amounting to murder. It emerges from the testimony of PW4 and 5 that CLW over right eyebrow of PW1 was found and he was probably having head injury at the time of incident. Therefore, the accused could not be attributed the knowledge that by inflicting those injuries, they were likely to cause death, therefore, their act does not fall within the purview of section 308 IPC. The requisite intention or knowledge as required u/s 308 IPC is not proved against the accused Mujmil and Mohd. Imran. However, it has been proved by the Prosecution that injuries have been received by PW1 by the FIR No. 47/06; State Vs. Mujmil & Anr. Page 16 of 21 act of accused Mujmil and Mohd. Imran, therefore, their act falls within the purview of sections 186/353/323/34 IPC.
14. In view of my aforesaid discussion, I am of the considered opinion that Prosecution has been able to prove its case against accused Mujmil and Mohd. Imran beyond doubt. I, therefore, hold both the accused guilty and convict them u/s 186/353/323/34 IPC.
(YASHWANT KUMAR) ADDL. SESSIONS JUDGE:NW03:ROHINI:DELHI.
ANNOUNCED IN THE OPEN COURT ON 18052012 FIR No. 47/06; State Vs. Mujmil & Anr. Page 17 of 21 IN THE COURT OF SH. YASHWANT KUMAR: ADDL SESSIONS JUDGE03: NW : ROHINI : DELHI SESSIONS CASE NO. 61/11 FIR No. 47/06 P.S. Rohini U/S: 186/353/324/308/34 IPC STATE Versus (1) MUJMIL s/o Wasim r/o A175, Vijay Vihar Ph1, near gas agency Sec5, Rohini, Delhi (2) MOHD. IMRAN s/o Mohd. Yunus Qureshi r/o H. No. 1061, Meenakshi Chowk, near Shalimar Hotel, Muzaffar Nagar, UP Order on Sentence
1. Arguments have been heard from Ld. Defence counsel as also from Ld. APP for State. Ld. Defence counsel has argued that convicts are the mechanics and earning their livelihood. This is the first criminal case against them and no other criminal case is FIR No. 47/06; State Vs. Mujmil & Anr. Page 18 of 21 pending against them and even otherwise, they have never been convicted in any other criminal case. The convict Mujmil is of 30 years of age who got married 2½ years ago and has been looking after his wife, mother and father. The convict Imran is of 32 years of age and unmarried. He has to look after 4 children of his brother who has already expired and the other brother is handicapped. Request has been made to take lenient view and to release the convicts on probation. The Ld. Counsel for the convicts in support of his arguments has relied upon the judgement delivered on 17062009 in Crl. A. No. 240/09 by the Hon'ble High Court of Delhi in the case titled Raj Pal Vs. State (NCT of Delhi) and ors.; judgment delivered on 18112010 by the Hon'ble High Court of Delhi in Crl. A. no. 164/01 titled Rakesh and Anr. Vs. State of NCT of Delhi; and the judgement delivered on 01022011 passed by the Hon'ble High Court of Delhi in Crl. A. no. 242/2001 titled Babu Lal & ors. Vs. State.
2. The Ld. APP for State has argued that convict should be given appropriate sentence as per law.
3. There is nothing on record which may indicate the involvement of convicts in any other criminal case. The convicts have been facing trial since 2006. Their conduct during trial has FIR No. 47/06; State Vs. Mujmil & Anr. Page 19 of 21 been good. Considering the totality of facts and circumstances and also the aforesaid judgments relied upon by the Ld. Counsel for the convicts, in my opinion, this is a fit case where the convicts be released on probation. I, therefore, direct that both the convicts be released on probation of good conduct for two years on their entering into a bond of Rs. 10,000/ each with a surety each of the like amount. They shall appear and receive the sentence when called upon during such period of two years and in the meanwhile they shall keep peace and be of good behaviour. Copy of judgement and order on sentence be given to the convicts free of cost. File be consigned to Record Room.
(YASHWANT KUMAR) ASJ/NW03/ROHINI/DELHI ANNOUNCED IN OPEN COURT ON 04072012 FIR No. 47/06; State Vs. Mujmil & Anr. Page 20 of 21 State Vs. Mujmil & Anr.
FIR No. 47/06
PS: Rohini 04072012 Pre: Sh. Anil Kumar, Ld. Addl. PP for State.
Both convicts on bail with Sh. Amar Nath Saini, advocate for both convicts.
Vide separate order, both convicts are directed to be released on probation of good conduct for two years on their entering into a bond of Rs. 10,000/ each with a surety each of the like amount. They shall appear and receive the sentence when called upon during such period of two years and in the meanwhile they shall keep peace and be of good behavior. Copy of judgment and order on sentence be given to the convicts free of cost. File be consigned to Record Room.
(Yashwant Kumar) ASJ/NW03/Rohini/Delhi FIR No. 47/06; State Vs. Mujmil & Anr. Page 21 of 21