Delhi District Court
State vs . Mohd. Usman & Anr. on 24 August, 2012
IN THE COURT OF MS. ILLA RAWAT : ADDL. SESSIONS JUDGE
(NORTHWEST)01, ROHINI : DELHI
(Sessions Case No. 05/11)
Unique ID case No. 02404R0347402010
State Vs. Mohd. Usman & Anr.
FIR No. : 48/09
U/s : 307/34 IPC
P.S. : Bharat Nagar
State Vs. 1. Mohd. Usman
S/o Mohd. Furkan
R/o B63, Sangam Park,
R.P. Bagh, Delhi.
2. Mohd. Wasim
S/o Mohd. Altaf
R/o B85, Sangam Park,
R.P. Bagh, Delhi.
Date of institution of case 14.03.2011
Date on which, judgment has been reserved 24.08.2012
Date of pronouncement of judgment : 24.08.2012
JUDGMENT:
1 The case of the prosecution as briefly stated in the charge sheet is that on 29.11.2009, at about 10.38 pm, an information was received at PS Bharat Nagar that S.C. No. 05/11 : State vs. Mohd. Usman etc. : Page 1 of 10 "Sangam Park Sahayata Kendra, R.P. Bagh, ek adami ko chaku mar diya" and on the basis of said information, DD No.30A was recorded, pursuant to which, ASI Dharambir Singh along with Ct. Vinay went to the place of incident i.e. near the shop of Sangam Telecom, Sangam Park, Delhi, where injured Deep Chand met them in injured condition and he was removed to Hindu Rao Hospital. ASI Dharambir Singh along with Ct. Vinay also reached at Hindu Rao Hospital and collected the MLC of the injured Deep Chand. The examining doctor opined the patient to be 'fit for statement'. Thereafter, ASI Dharambir Singh recorded the statement of injured Deep Chand, who stated that on 29.11.2009, he along with his friend Sunil had gone to one hotel (dhaba) at Sangam Park for bringing roti on a motorcycle, where one push was caused to one boy, who was also standing at the same hotel and some altercation took place and that when he and his friend Sunil started from the said hotel after taking roti, accused Usman stopped them at about 10.00 pm near Sangam Telecom and started abusing them and that in the meanwhile, two friends of Usman having ustras in their hands also reached there and caused injuries on his person and that he can identify those boys. He prayed that necessary action be taken against the assailants.
2 On the basis of said complaint, FIR no. 48/09, PS Bharat Nagar was registered against both the accused persons u/s 324/34 IPC. Investigations were carried out. Later on, doctor declared the injury of injured Deep Chand as 'dangerous' on the MLC and a Section 307 IPC was also added and further investigation of this case was handed over to SI Satish Kumar, who recorded supplementary statement of Deep Chand, in which he stated that accused Nanhe (since juvenile) had caught hold of him and while accused Usman, who was having a churi in his hand and accused Wasim, who S.C. No. 05/11 : State vs. Mohd. Usman etc. : Page 2 of 10 was having an ustra, attacked him and caused injuries to him. Accused persons were arrested. As accused Nanhe @ Samran was juvenile, his charge sheet was filed before Juvenile Justice Board. After completion of the investigation, the charge sheet was prepared against accused Mohd. Usman and Mohd. Wasim and filed in the court for trial.
3 After committal, arguments on the point of charge were heard and on the basis of the material on record, the charge for committing the offences punishable u/s 307/34 IPC was framed against accused Mohd. Usman and Mohd. Wasim by the Ld. Predecessor of this Court. Both the accused pleaded not guilty to the respective charges framed against them and claimed trial.
4 In support of its case, prosecution has examined five witnesses i.e PW1 to PW5.
5 PW1 ASI Daya Nand has recorded the FIR No.48/09 of this case and he has proved the carbon copy of the FIR as Ex. PW1/B and endorsement made by him on rukka as Ex.PW1/A. He has also proved the DD no. 30A dated 29.11.2009 as Ex. PW1/C, which was recorded at about 10.30 pm by duty officer HC Sanjay Singh regarding stabbing to a person at Sangam Park, Sahayta Kendra, R.P. Bagh. 6 PW2 HC Sanjay Kumar, who was working as MHCM at PS Bharat Nagar at the relevant time, has proved the entries made by him in register no. 19 regarding deposit of exhibits in mal khana, sending of exhibits to FSL and receipt of FSL result S.C. No. 05/11 : State vs. Mohd. Usman etc. : Page 3 of 10 along with exhibits and sending of exhibits to JJB as Ex. PW2/A, Ex. PW2/B, Ex. PW2/C, Ex. PW2/D and Ex. PW2/E. 7 PW3 Sunil is put forth by the prosecution as an eye witness and he fully supported the prosecution case on all material particulars. 8 PW4 Deep Chand is the complainant/injured in the present case and he was examined on 30.11.2011, during which, he supported the prosecution case to some extent in his examinationinchief. He was put leading question by Ld. Addl. PP regarding the proceeding conducted by the police after the arrest of the accused persons whereupon he deposed regarding the same. However, during his crossexamination by learned defence counsel conducted on 23.08.2012, he fully changed his version and stated that :
"......... when the incident took place, it was dark and ..... at the place of incident, there was no source of light. The name of the accused Usman, Wasim and Juvenile Nanhe were told to me by the public person present at the spot as I was not able to see the face of my assailants due to darkness ....."
9 PW4 further termed it correct that on the day of incident, he had consumed liquor and it was possible that due to the effect of liquor, he fell down and sustained injuries on his person. He also termed it correct that at the time of incident, his friend Sunil (PW3) was not present with him at the spot and he came that way later on and on S.C. No. 05/11 : State vs. Mohd. Usman etc. : Page 4 of 10 seeing him injured, stayed back to help him. He further termed it correct that his friend Sunil had deposed against the accused persons due to his friendship with him and that none of the accused had given injuries to him or his friend Sunil on the date of incident. 10 Thereafter, PW4 Deep Chand was reexamined by the Ld. Addl. PP and in reply to a specific question put by ld. Addl. PP, PW4 stated that whatever he deposed on 30.11.2011 was at the instance of the police and that on 30.11.2011, he was threatened by the police officials to give his statement. During his further cross examination by learned defence counsel, PW4 stated that he did not make complaint to the court as he was afraid of adverse consequences in case FIR no. 47/09 u/s 324/34 IPC, in which he was one of the accused.
11 PW5 SI Satish Kumar is one of the Investigating Officers of the case and investigation of the present case was handed over to him on 27.01.2010. This PW deposed regarding various proceedings/ investigations carried out by him and documents prepared by him during the course of investigation. He deposed that during the course of investigation, he arrested both the accused, conducted their personal search, recorded disclosure statements of the accused persons and after completion of investigations, he presented the challan.
12 After recording of prosecution evidence, statements of the accused persons namely Mohd. Usman and Mohd. Wasim u/s 313 Cr. P. C. were recorded, wherein both the accused denied the entire prosecution evidence and stated that they are innocent and have been falsely implicated in this case. However, no defence witnesses were S.C. No. 05/11 : State vs. Mohd. Usman etc. : Page 5 of 10 examined by the accused persons despite opportunity.
13 Arguments have been put forward by Ld. Addl. PP for State and Ld. Defence counsel for the accused -Mohd. Usman and Mohd. Wasim. 14 It has been submitted by Ld. Addl. PP that in view of the evidence adduced on record, in particular the testimonies of PW3 Sunil and PW4 Deep Chand, the prosecution has been successful in proving on record the guilt of the accused persons beyond reasonable doubt. It is further submitted that prosecution has been successful in proving on record that on the day of the incident, both the accused persons along with their associate Samran @ Nanne (juvenile) assaulted PW4 Deep Chand with razor (ustra) and chhuri with such intention or knowledge and under such circumstance that if by that act, they had caused his death, both of them would have been guilty of murder. Ld. Addl. PP also submitted that though, PW4 did not support the prosecution case during his crossexamination, but the testimony of PW3 coupled with the examination inchief of PW4 is fully sufficient to establish that it were the accused persons, who had assaulted PW3 and PW4 and caused dangerous injuries on the person of PW4. He further submitted that in view of the evidence and material brought on record by the prosecution, the guilt of the accused persons has been proved beyond reasonable doubts and he prayed that all the accused may be convicted of the charged offences. 15 On the other hand, it has been submitted by the Ld. Defence counsel that the prosecution has miserably failed to prove the guilt of the accused persons beyond the reasonable doubt. It is further submitted that from the material on record, no offence S.C. No. 05/11 : State vs. Mohd. Usman etc. : Page 6 of 10 is made out against any of the accused persons. It is also submitted that weapon of offence has been recovered from or at the instance of any of the accused persons. Ld. Defence counsel further submitted that the testimonies of PW3 and PW4, the main public witnesses lack credibility as there were material contradictions and discrepancies in their testimonies. It is further submitted that accused persons are innocent and have been falsely implicated in this case. Ld. counsel submitted that the evidence brought on record by the prosecution is self contradictory and the various loopholes in the testimonies of various prosecution witnesses, entitles the accused persons to the benefit of doubt and he prayed that accused -Mohd. Usman and Mohd. Wasim be acquitted of the charged offences.
16 I have carefully considered the submissions made by Ld. Addl. PP for State and Ld. Defence counsel for the accused persons and have carefully gone through the record of the case. I have also carefully considered the evidence adduced on behalf of the prosecution in support of its case.
17 In the present case both the accused along with their juvenile accomplice has stated to have caused injuries with deadly weapons i.e. ustras and knife on the person of injured Deep Chand, who was subsequently removed to hospital and his MLC was prepared wherein the doctor opined nature of injuries as 'dangerous'. The FIR has been registered against both the accused persons as well as their juvenile accomplice on the basis of statement Ex.PW4/A made by injured Deep Chand. Chiefexamination of injured Deep Chand was recorded on 30.11.2011 and at that time he duly supported the prosecution case, however, he had to be put specific leading question by learned S.C. No. 05/11 : State vs. Mohd. Usman etc. : Page 7 of 10 Additional PP regarding proceedings conducted by Police after the arrest of the accused persons including the disclosure statement, pointing out memo prepared in respect of both the accused persons. When this witness was crossexamined on behalf of accused persons on 23.08.2012, he completely changed his version exonerating both the accused of the allegations made against them in complaint Ex.PW4/A. In fact he stated that he had been told names of accused persons as well as their juvenile accomplice by the public persons present at the spot and that there was no source of light at the spot and that when the incident took place it was dark and that due to darkness, he had not been able to see face of his assailants. He also stated that on the day of incident, he had consumed liquor which is also reflected from his MLC, and it was possible that due to the effect of alcohol he had fallen down and sustained injuries on his person due to the fall. He also stated that his friend Sunil was not present with him at the spot at the time of incident and he had come that way later on and on seeing PW4/injured had stayed back to help him and that he had deposed against the accused persons due to his friendship with PW4. He termed it correct that none of the accused had given him injuries and that no weapon of offence was recovered by the Police as no weapon had in fact being used by the accused persons. Despite his reexamination by learned Additional PP nothing which could be of any aid to the prosecution could be brought out from the reexamination of the complainant. He rather gave explanation that he had given his statement on 30.11.2011 as he was threatened by the Police and that he had also not made any complaint against the concerned police official as he was afraid or adverse consequences in case FIR No.47/09 u/s.324/34 IPC registered at PS Bharat Nagar which was also pending trial.
S.C. No. 05/11 : State vs. Mohd. Usman etc. : Page 8 of 10 18 Learned Additional PP has contended that since the witness has supported the case of the prosecution in his examinationinchief recorded on 30.11.2011 and his testimony is duly corroborated by that of PW3 Sunil, an eye witness to the incident, the guilt of the accused stands proved beyond reasonable doubt. This submission made by learned Additional PP cannot be accepted for two reasons, firstly PW3 Sunil himself is an interested witness as he too is an accused in case FIR No.47/09 u/s.324/34 IPC registered at PS Bharat Nagar and would thus be interested in securing conviction of both the accused in the present case, one of whom namely Usman is injured / complainant in the said case. Secondly, complainant himself is stated that PW3 Sunil has deposed at his instance being his friend, without knowing the correct facts of the case and thus a doubt is created regarding presence of PW3 Sunil at the place of incident on the alleged date when the incident had taken place. As far as the testimony of PW4 complainant / injured Deep Chand is concerned, it has been held in the case of Suraj Mal Vs. The State (Delhi Administration), AIR 1979 SC 1409, that : "...... Where witnesses make two inconsistent statements in their evidence either at one stage or at two stages, the testimony of such witnesses becomes unreliable and unworthy of credence and in the absence of special circumstances no conviction can be based on the evidence of such witnesses....."
19 Moreover as per PW3 and PW4, the place of incident is a crowded market place and several public persons were present there when the incident happened. In S.C. No. 05/11 : State vs. Mohd. Usman etc. : Page 9 of 10 these circumstances, nonjoining of public witnesses, though available and impleading only interested related witnesses does not stand explained sufficiently by the prosecution. I am supported in my view by judgment in The State of Rajasthan vs. Shri Teja Singh and Ors. 2001 I AD (Cr.) SC 385.
20 Moreover in the present case nothing incriminating i.e. weapon of offence has been recovered at the instance of the accused persons and it cannot be ascertained how the injured Deep Chand had received injuries when he himself states that he may have received injuries by way of fall as he had consumed alcohol at the time of the incident.
21 Thus, in view of the above discussion and observations and having regard to the fact and circumstances of the present case, I am of the considered opinion that the prosecution has failed to prove the guilt of the accused persons Mohd. Usman and Mohd. Wasim on record, beyond the reasonable doubts. Accordingly, I acquit accused persons Mohd. Usman and Mohd. Wasim giving them the benefit of doubt.
File be consigned to the record room.
(Announced in the open Court ) (Illa Rawat)
(Today on 24.08.2012) Addl. Sessions Judge
(NorthWest)01
Rohini/Delhi.
S.C. No. 05/11 : State vs. Mohd. Usman etc. : Page 10 of 10
FIR No. 48/09
P.S.Bharat Nagar
State Vs. Mohd. Usman & Anr.
24.08.2012
Present: Addl. PP for the State.
Both accused on bail with counsel.
Statements of accused u/s.313 CrPC recorded, wherein they do not want to lead evidence in their defence.
Final arguments heard.
Be put up for orders at 3.30 pm. ASJ (NW)01 Rohini/Delhi 24.08.2012 At 4.00 pm Present : Ld. Addl. PP for the State.
Both accused on bail.
Vide separate judgment, announced today in the open Court, accused persons Mohd. Usman and Mohd. Wasim have been acquitted of the charged offence.
Both accused request that their previously furnished bail bonds may be accepted in compliance of Section 437A Cr.PC. Request allowed. Accordingly, previous bail bonds of the accused persons are extended for a period of six months from today in terms of Section 437A CrPC.
File be consigned to Record Room.
(Illa Rawat) Addl. Sessions Judge (NorthWest)01/Rohini/Delhi S.C. No. 05/11 : State vs. Mohd. Usman etc. : Page 11 of 10