Delhi District Court
State vs . on 26 May, 2011
1
IN THE COURT OF SMT. BIMLA KUMARI
ADDL. SESSIOS JUDGE (NORTH):DELHI.
S.C. No. 52/10
ID No.02401 R 018007 2010
State
Vs.
(i)Rahmat Bee
W/o Sh. Shokat Ali
R/o CN 54 Gali No.3, Sangam Vihar
Wazirabad
Delhi.
(ii)Muslim Bano
W/o Wazid Ali
CN 54 Gali No.3, Sangam Vihar
Wazirabad
Delhi.
(iii)Sahin Parveen
W/o Sh. Abid Ali
R/oCN 54 Gali No.3, Sangam Vihar
Wazirabad
Delhi.
(iv)Sabia
W/o Sh. Wasid Ali
R/oCN 54 Gali No.3, Sangam Vihar
Wazirabad
Delhi.
SC No.52/10 1/23
2
(v)Rukshana
W/o Sajid Ali
R/oCN 54 Gali No.3, Sangam Vihar
Wazirabad
Delhi.
(vi)Sajid Ali
S/o Sh. Sokat Ali
R/oCN 54 Gali No.3, Sangam Vihar
Wazirabad
Delhi.
FIR No.:425/06
PS : Timarpur
U/S 325,452 & 395 IPC
Date of Institution:15.4.10
Date of reserving judgment:15.4.10, 7.5.11 and 13.5.11
Date of pronouncement:.26.5.11
JUDGMENT
1 In the present case, charge has been framed against accused Rahmat Bee, Muslim Bano, Sahin Parveen, Sabia, Rukhsana and Sajid Ali in respect of offences U/S 325/452 and 395 read with Section 34 IPC. The allegations against the accused persons in the charge are that on 26.8.06 at about 9.10 AM at H.No.C49, Gali No.3, Sangam Vihar, Wazirabad, Delhi, they caused grievous hurt on the person of complainant Sabia. It is further alleged that they committed house trespass by entering the house of complainant after having made SC No.52/10 2/23 3 preparation for causing hurt to her and committed dacoity by snatching her two bangles and one gold ear ring. Accused pleaded not guilty to the said charge and claimed trial.
2 Prosecution has examined 17 witnesses to prove its case. They are HC Sunil Kumar(PW1), Ct. Mohan Lal(PW2), W/HC Beena (PW3), Sofia Begum(PW4), Dawood(PW5), Yasir(PW6), HC Gulzar Singh (PW7), Dr. Sarita Kumari(PW8), HC Jinesh Kumar(PW9), HC Rajpal Singh(PW10), SI Ved Singh(PW11), Ct. Brij Kumar(PW12), HC Satish Kumar(PW13), Inspector Jitender Kumar(PW14), SI Samar Pal(PW15) and Dr. Bimarjeet Pradhan(PW16).
3 Statements of accused have been recorded U/S 313 Cr.P.C, wherein they have denied the allegations of prosecution. They have submitted that they are innocent and have been falsely implicated in the present case.
4 Accused Rahmat Bee has submitted that no quarrel took place. Only exchange of hot talks, between her and Safia, took place on the issue of water. Police arrested her and two sons Sajid and Arshad U/S 107/151 Cr.P.C. They were produced before ld. Executive Magistrate Sarai Rohilla and they were acquitted in that case.
5 Accused have examined four witnesses in their defence. They are Jamshed (DW1), Azim (DW2), Ct. Mohan (DW3) and SC No.52/10 3/23 4 SI Kishore Kumar (DW4).
6 I have heard the arguments from ld. counsel for accused and Ld. Addl. P.P for State.
7 Ld. counsel for accused has prayed for acquittal of accused by submitting that there is delay in lodging the FIR. PW3 W/HC Veena did not join the investigation as she does not remember anything. Accused did not cause any injury to complaint as no stone has been recovered by the I.O. Torn clothes of complainant were not seized by I.O. No public witness has been joined by the I.O in the investigation. The dispute between the complainant and accused Rahmat Bee was only on account of taking water from the tanker. MLC of complainant has not been proved by the prosecution.
8 On the other hand, ld. Addl. P.P has submitted that delayed in lodging the FIR has been properly explained. Injured Safia Begum received injuries at the hands of accused persons on 26.08.06 and immediately the matter was reported to police at number 100 and police reached the spot and took away the injured to Asaf Ali hospital. There is a negligence on the part of HC Gulzar Singh, who recorded the statement of injured on 09.09.06. There is a faulty investigation for which the accused persons cannot be acquitted. Stone injury was caused to complainant and stones were lying on the spot. Testimonies of material witnesses SC No.52/10 4/23 5 cannot be discarded on the ground that I.O did not join the public persons in the investigation. They testimony of material witnesses, which is fully corroborated by the medical evidence. MLC has been duly proved by PW Dr. Bimarjeet Pradhan and the nature of injuries as per the MLC is grievous. (PW16). Complainant/victim cannot be made to suffer on account of faulty investigation on behalf of I.O.
9 In the present case, out of 17 witnesses, PW4 is the star witness of this case being the complainant. She has deposed that on 26.8.06, she went out of her house to take water from the tanker. Accused Sajid @ Manju, present in court, started smiling after seeing her and misbehaved with her for which she rebuked him. On this, accused Sajid caught hold of her collar and pulled her, due to which her shirt got torn. She cried for help. Number of labourers gathered. Accused Rehmat Bi, Rukhsana, Muslim, Shahin and Sabia also reached there. They all encircled her. They pushed her on the ground and said that she was levelling false wrong allegations against Sajid. Accused Sajid told the other accused to beat her (complainant)more and more. Her minor son namely, Yassir came there. He went to call her husband. Her husband also reached there. The accused person, present in court, started pelting stones upon her and her husband. They (PW4 & her husband) went inside their house. SC No.52/10 5/23 6 Accused persons entered their house and dragged her husband outside the house in the gali and started beating him. All the accused removed her two gold bangles from her right hand and one right ear ring. She saw that accused Muslim was taking her bangles and accused Rukhsana was taking her ear ring. The accused persons also dragged her out of her house and gave beating to her. Accused Rukhsana and others caught hold of her hand and hair and removed her ornaments. Later on, she got recorded her statement to police, which is Ex. PW4/A. Someone had made a call to police. The police inspected the spot at her instance. She did not give her wearing clothes to doctor because she was not having spare clothes. 10 In crossexamination by ld. counsel for accused Sajid and Rukhsana, PW4 has deposed that on 26.10.06 the incident had occurred between 9.00 AM to 10.00 AM. 2/4 persons were also standing on the spot for taking water. She does not know the names and addresses of those persons. She she came out from her house. She saw accused Sajid at a distance of 6/7 feet. At that time she was alone. She has denied that accused Sajid did not smile after seeing her. She scolded him and said "Itni Badtamijee Kyon Kar Raha Hai.". She has denied that accused did not caught hold of her collar. Police did not seize her torn shirt. She has volunteered that she has shown the same SC No.52/10 6/23 7 (torn clothes) to the police. She has denied that no shirt was torn. She has denied that no such incident had occurred. She has further denied that she did not cry for help. She has deposed that Shahnaz, Wakila Begum, Hazira and some other persons reached the spot. Police had recorded the statements of those persons. She has denied that accused did not reach the spot and they did not do anything. Her statement was recorded in the police station. Again said I.O recorded her statement on the same day on the spot. Later on, she was called in the police station where her statement was recorded on 29.8.06. Her signatures were obtained on her statement at the police station as well as at the police post. After 5 to 7 minutes her son Yasir came at the spot. He had seen the quarrel. Her son Yasir had caller her husband, who reached the spot. She has denied that no stone was pelted upon her. Police did not seize any stone from the spot. Her husband had also received injuries and was medically examined. He remained in the hospital for about one/one and half hour.
11 In crossexamination by ld. counsel for remaining accused, she has deposed that the tanker came at about 9.15 Am. All the neighbourers reached the spot at the arrival of the tanker. Accused Sajid apart from smiling stated to her "Kahan Ja Rahi Ho, Pani Main Bharwa Doonga". Accued also put dirty gaze upon her. She does not know SC No.52/10 7/23 8 whether the words spoken to her by the accused were heard by any other person or not. She said to accused Sajid that "Ek Jagah Rah Kar Aisi Batten Kyon Kar Rahe Ho Badtamijee Mere Sath". She told these things to her neighbourers namely, Hazara Begum, Wakila Begum, Shayada and Shabir. She does not know, if the neighbourers said anything to accused Sajid in that regard. It took about 30 or 35 minutes in the whole incident. Her son Yasir also reached the spot, when she raised alarm. Her husband picked her up and took her to the house. Accused persons pelted stones upon them. Accused were present at the spot at the time of arrival of her husband. Accused persons alongwith the neighbours followed them and beat her in her house. The stones, lying in front of her house, were not taken into possession by the local police. She has admitted that on 26.8.06 I.O orally asked about the incident and told her to come to the police station on the next day. On the next date i.e on 27.8.06 she went to the police station, where IO recorded her statement. IO obtained her signatures on her statement on 27.8.06 and read over the statement to her. About 10 to 12 persons had accompanied her to police station at the time of recording her statement. Statements of some of the persons were recorded but she can not tell their names. IO recorded the statements of 4 to 5 neighbourers in her presence on 27.8.06. IO came at her house on 28.8.06,but did not prepare any site plan. Again said she SC No.52/10 8/23 9 does not remember whether the site plan was prepared by the IO or not. She had told about the snatching of her one ear ring and two bangles. The snatching was also seen by the neighbourers. The people of her mohalla were also present at the time of taking away the aforesaid articles by the accused but nobody stopped them. She has denied that her ear ring and bangles were not taken away by the accused persons. 12 The other material witness is PW5. He is the husband of complainant. He has deposed that on 26.8.10 his wife Safia Begum had gone out of house to take the water from the tanker at about 9/10 AM. Later on, his son Yassir informed him that accused persons were quarreling with Safia Begum. On this information, he went to the tanker (spot). He saw that accused Sajid was misbehaving with his wife and was abusing her. He asked him not to do so. In the meantime, other accused persons namely, Rehmat Bi, Rukhsana, Muslim Shahin and Sabia also reached there. They started pelting stones on them. 13 In crossexamination by ld. counsel for accused, PW5 has deposed that he did not see accused Sajid misbehaving with his wife or abusing her. When he reached the tanker, about 15 or 16 persons were standing. Accused Sajid and her other opponents pelted stones upon her. PCR van took him to the Asaf Ali hopsital. He cannot tell the time when he came back from the hospital, but he came back on the same SC No.52/10 9/23 10 day. He has further deposed that he has not witnessed the entire incident. He had not seen as to who removed ear ring and bangles of his wife. He cannot tell when and where his statement was recorded. One Sardarji IO had recorded his statement at his house. Thereafter, his statement was never recorded at any place. His statement was not read over to him. Stones were lying at the spot and not near his house or in front of his room. He has denied that he is deposing falsely because the complainant is his wife. He has denied that no incident took place on 26.8.06.
14 PW6 Yassir, who is the son of complainant Safia Begum has deposed that on 26.8.06 his mother had gone to take the water from tanker at about 10.00/11.00 Am. He was present at home. He heard the noise of quarrel. He came out of his house. He saw that accused Sajid was abusing his mother and was misbehaving with her. He went to call his father, who came on the spot and tried to intervene the matter. In the meantime, other accused persons Rehmat Bi, Rukhsana, Muslim, Shahin and Sabia also reached there and they started pelting stones on his parents and gave beatings to them. They went inside their house. Accused persons entered the house and dragged his father and mother outside of their house and started beating them. Accused persons took away two gold bangles and one ear ring of his mother.
SC No.52/10 10/23 11 15 In crossexamination by ld. counsel for accused, PW6 has deposed that on 26.8.06 at about 10.00 to 11.00 Am, he was playing cricket alongwith 4 or 5 boys in the street. He had seen the water tanker coming between 10.00 to 11.00 AM. He cannot tell the exact time when he heard the noise of quarrel. He cannot tell the time when he reached near the tanker after hearing the noise of quarrel. Accused Sajid was abusing his mother and was catching the kameez of his mother. Other ladies were beating his mother. He did not try to get his mother freed or to save her. He cannot tell the time, when he reched his house to inform his father. It took about one minute to reach the house. He cannot tell the time when his father came at the spot but he accompanied his father as he was at home. Jafroo, Hazra, Sadiya, Suhail were the person, who tried to save her mother. The statements of above named persons were recorded by the police. He cannot tell the day and date when the statement of above named persons were recorded by the police. PCR van came at the spot between 11.30 or 1.45 Am. His father and mother were taken by the PCR van for medical examination. He did not accompany them to the hospital but they were accompanied by Hazra and Dr. Dawood. At about 8.00 PM his statement was recorded on 26.8.06 at this house. His signature was obtained by the police on his statement. He does not remember what statement he made before the police. He did not SC No.52/10 11/23 12 got to the police station because his statement was recorded at his home on any other date. He has admitted that he had not seen any of the accused snatching two gold bangles and one year ring belonging to his mother. The police had recorded the statements of Dawood, Suhail and Hazra Begum .
After going through the material on record, I am of the considered view that evidence of PW4 is natural and without mincing words. The same is without embellishment. She has deposed candidly about the incident. All these make her evidence reliable. Moreover, there is nothing in crossexamination of PW4 to the contrary. Further, on certain points her evidence is corroborated with that of PW5 & PW6 and with medical evidence. Accordingly, her evidence proves on record the facts in issue and relevant facts concerning the offences, accused have been charged with.
16 In State of U.P V. Hari Mohan & Others, AIR 2001 Supreme Court 142. It was observed by Hon'ble Supreme Court that Before appreciating the circumstantial evidence in the case, we are at pain to place on record our displeasure regarding the conduct of the investigation in the case. The investigating Officer appears to have left no stone unturned to help the accusedrespondents. It appears that the valuable evidence, though available was not collected apparently for ulterior purposes. The conduct of the investigating officer SI D.P Tiwari (PW7) th was even noticed by the trial Court. On 30 October, 1978 while recording his statement, the trial Court observed that "it appears that the SC No.52/10 12/23 13 IO was negligent and an irresponsible investigating officer.". It was noticed that "the witness giving aforesaid statement, wants to damage the prosecution case". It is not disputed that during investigation it had come in evidence that respondent No.1 was possessed of a licensed gun which was stated to have been used by him on 15.3.77, the alleged day of occurrence, yet no effort was made by the IO to seize the gun or get it examined by an expert to ascertain whether any shot was fired from its barrel. He also failed to have taken into custody the letter written by the deceased for a sufficiently long period though its mention was made by the PW1 in the FIR itself. However, the defective investigation cannot be made a basis for acquitting the accused if despite such defects and failures of the investigation, a case is made out against all the accused or anyone of them.
17 In the present case, the incident has occurred on 26.8.06 but FIR Ex. PW1/A has been registered on 9.9.06. It is true that delay in lodging the FIR may be fatal in a case. But at the same time it is also true that delay in lodging the FIR can be over looked if the same has been duly and properly explained. In the present case, PW2 Ct. Mohan Lal has deposed that on 26.8.06 (as admitted by PW2 in crossexamination by Ld. Addl. PP) at about 9.05 AM he received a call from Control Room regarding the quarrel at C49, Gali No.3, Sangam Vihar, Delhi. He reduced the said information into writing vide DD No.11. The same is Ex. PW2/A. The DD Ex. PW2/A was marked to HC Gulzar Singh(PW7) for necessary action. It is significant to note that PW7 HC Gulzar Singh, who is the initial IO of this case, has not conducted the investigation of this SC No.52/10 13/23 14 case fairly and sincerely. After receipt of DD No.11 Ex. PW2/A he did not go to the spot and kept the DD No.11 pending. After receipt of DD No.11 he went to court. After attending the court he went to the spot only at 7.30 PM and found that the injured (PW4) was not in a condition to give her statement. It is significant to note that MLC Ex. PW8/A shows that complainant Sofia(PW4) was fit for statement as per the observation made by the doctor, who attended the patient on the day of incident. It is further worth noting that PW7 HC Gulzar Singh had collected the MLC of complainant from the hospital on the day of incident itself. After collecting the MLC, he went to the spot at about 7.30 PM but complainant did not give the statement by stating that "Pados Ka Mamla Hai". It is significant to note that HC Gulzar Singh did not record all these facts, as he (PW7) has admitted that he did not record the statement of complainant in that regard. No explanation has been furnished by the IO (PW7) as to why he did not attend the DD No.11 Ex. PW2/A and went to the court. No explanation has also been furnished by him as to why he did not record the statement of complainant Sofia in between 26.7.06 to 9.9.06. It is further significant to note that PW4 Sofia has deposed in cross examination by ld. counsel Sh. J.P. Jain that IO had recorded her statement on the date of incident. Later on, she was called at the P.S where her statement was recorded. Her signatures were obtained on her SC No.52/10 14/23 15 statement at the P.S as well as Police Post. In crossexamination by Ld. counsel Sh. S. Haq PW4 has deposed on 26.8.06 I.O orally asked about the incident and told her to come to the P.S on next day. On the next day she went to P.S and her statement was recorded. In other words, as per testimony of PW4 her two/three statements were recorded by I.O prior to 9.9.06. But I.O of the case, who has conducted the investigation in a biased and partial manner did not place on record those statements of complainant and did not furnish any explanation for withholding of those statements. In view of above facts, I am of the considered view that the delay in lodging the FIR is not fatal in this case. 18 In the present case, IO did not seize the torn clothes of complainant despite the fact, that the torn clothes were shown to him by the complainant. The fact that clothes of the complainant (PW4) were torn in the incident on the relevant date, is proved on record by PW12 Ct. Brij Kumar. He (PW12) has deposed that on 26.8.06 at about 10 AM one PCR van brought one lady namely, Sofia Begum in an injured condition. She was admitted in the hospital, whose MLC was prepared by the doctor. Her clothes were torn and she was not having spare clothes, so her torn clothes could not be seized. She was directed to hand over the said torn clothes later on. It is worth noting that PW4 Sofia Begum has also deposed in her crossexamination that police did not seize her torn SC No.52/10 15/23 16 shirt. She had shown the same (clothes)to the police. She has categorically denied the suggestion that her shirt was not torn as no such incident was taken place. If, I.O of the case (PW7) did not seize the torn clothes of complainant (PW4), it cannot be said that her clothes were not torn in the incident on the day of incident. Thus, the omission on the part of I.O in not seizing the torn clothes of PW4 is not fatal to the prosecution case.
19 In the present case, PW7 HC Gulzar Singh did not join any public witnesses despite the fact that they were available at the spot and their statements were recorded by him. PW4 has deposed in her cross examination that Shahnaz, Wakila Begum, Hazira and some other persons were present at the spot. Police had recorded their statements. PW6, who is the son of complainant, was present on the spot. He has also deposed that Jafroo, Hazra, Sadiya, Suhail were present and they tried to save his mother. The statements of these persons were recorded by the police. But no explanation has been furnished by the I.O as to why he did not cite all these persons in the list of witnesses. I am of the considered view that if, I.O of the case intentionally or deliberately with holds some public witnesses, who are material ones, in order to favour the accused persons, accused cannot claim benefit on that score. The testimony of the complainant and other material witnesses, which is SC No.52/10 16/23 17 reliable and trustworthy, cannot be brushed aside. 20 In the present case, I.O (PW7) has also not seized the stones, which were pelted upon the complainant, Sofia Begum and her husband. PW4 Sofia Begum has deposed that accused persons pelted stones upon her and her husband due to which they received injuries. They were got medically examined in the hospital. She has further deposed that police did not seize any stone from the spot. She has deposed that no stone was hurled by the accused. Similarly, PW5 Dawood has also deposed that accused persons pelted stones upon him and his wife and they suffered injuries on their person. He has further deposed that stones were lying on the spot, but police did not take any stone into possession. PW6 Yasir has also deposed that all the accused pelted stones upon his parents and they gave beating to them. Thus, PW4, PW5 and PW6 have proved on record that accused had pelted stones upon PW4 & PW5. I am of the considered view that if, I.O of the case did not seize the stones intentionally and deliberately, it does not mean that no stone was pelted by accused upon PW4, PW5 and accused cannot claim acquittal on this score also. 21 In the present case, accused cannot claim acquittal on the ground that MLC of complainant has not been duly proved by the prosecution. To prove the MLC the prosecution has examined Dr. Sarita SC No.52/10 17/23 18 Kumar as PW8. She has deposed that on 26.8.06 injured Sabiya was brought to hospital by PCR with alleged history of assault (beaten by many persons). She examined the injured and found the abrasion at right middle finger, pain in right shoulder, difficulty in hearing from left ear and pain in left infra scapula region and abrasion in right ear. she has further deposed that after giving treatment patient was referred to Sr. Resident ENT. She prepared the MLC Ex. PW8/A. As per MLC there were abrason at right middle finger, pain in right shoulder, difficulty in hearing in left ear, pain in left intra scapular region at abrasion right ear. The patient was referred to Department of E&T, where he was examined by Dr. Parmod and it was found that there was a traumatic perporation. Patient was advised for PTA. Thus, PW8 has proved on record that on 26.8.06 PW4 received some injuries on her person.
22 Now the question that arises for consideration is as to what kind of injury PW4 Sofia has suffered on her person. Prosecution has examined Dr. Bimarjeet Pradhan as PW16. He has deposed that MLC Ex. PW8/A of patient Sofia was prepared by Dr. Afroz Alam. On the MLC Dr. Parmod made an his endorsement Ex. PW16/A. He (PW16) has identified the handwriting and signature of Dr. Parmod on the MLC. Dr. Parmod has left the hospital and his present whereabouts are not known. In crossexamination PW16 has deposed that he never worked with Dr. SC No.52/10 18/23 19 Afroz and Dr. Parmod. He had not seen the patient. He has deposed only on the basis of the file of the patient. He has never seen Dr. Parmod and Dr. Afroz writing and signing. Since PW16 has not identified the handwriting of Dr. Afroz, who has prepared the MLC Ex. PW8/A as he (PW16) never worked with him and he (PW16) never saw Dr. Afroz signing and writing. I am of the considered view that prosecution was not able to prove that the injuries suffered by PW4 were 'grievous' in nature. However, since some injuries were found present on the body of PW4 by PW8. I am of the considered view that prosecution has proved on record a case of 'simple' injury against the accused persons.
23 During course of arguments, ld. counsel for accused has also submitted that accused did not commit the dacoity of gold bangles and gold ear rings of complainant, as these articles were never recovered by the I.O. It is significant to note that in the present case the second I.O, SI Ved Singh, has also not conducted the investigation fairly. He did not make any efforts to get recovered the jewellery articles of PW4. 24 PW3 W/HC Beena has deposed that on 11.10.06 she alongwith IO SI Ved Singh went to Tis Hazari court where I.O formally arrested the accused Rehmat Bee, Shahin Begum, Rukhsana, Muslim Bano and Sabia vide memo Ex. PW3/A1 to A5. She conducted the SC No.52/10 19/23 20 personal searches vide memo Ex. PW3/B1 to B5. IO recorded the disclosure statements of accused Muslim Bano and Rukhsana vide Ex. PW3/C and Ex. PW3/D respectively. Both accused stated in their disclosure statements that they could get recover the bangles of the complainant. She has deposed that IO obtained the police custody remand of accused Muslim Bano and Rukhsana. In cross examination she (PW3)has deposed that I.O of the case did not take the accused persons anywhere. Thus, from the testimony of PW3 it becomes clear that subsequent I.O SI Ved Singh (PW11) was also biased and did not make any efforts to get the robbed articles of the complainant recovered at the instance of the accused Muslim Bano and Rukhsana despite obtaining the police remand of accused Muslim Bano and Rukhsana.
25 It is significant to note that as per MLC Ex. PW8/A, Injury No.1 and 5 clearly show that PW4 Sofia suffered abrasion at her right middle finger and right ear. This fact clearly shows that the gold bangles and ear ring were snatched and robbed by the accused on the date of incident. I am of the considered view that if the second I.O did not make any efforts to get the robbed articles recovered, it does not mean that PW4 was not robbed of her gold articles by the accused on the day of SC No.52/10 20/23 21 incident as PW4 has categorically deposed that she was robbed of gold bangles and ear ring by accused.
26 During arguments, ld. counsel for accused has also pointed out that PW5 Mohd. Dawood, who is the husband of complainant Sofia Begum was not present at the spot as he did not see the entire incident. It is significant to note that PW5 Mohd. Dawood has reached the spot when he was called by his son Yasir (PW6). As per the testimony of PW6 Yasir, he went to the spot after hearing the noise and found that her mother was being misbehaved and abused by the accused Sajid. His father came at the spot with him. In the meantime, other accused also reached the spot and started pelting stones upon the complainant and her husband. I am of the considered view that testimony of PW5 cannot be disbelieved, if he (PW5) has stated that he had not seen that Sajid was misbehaving and abusing his wife or that his testimony cannot be taken otherwise, if he has deposed that he had not seen the entire incident. Since PW5 Mohd. Dawood has not seen the earlier part of the incident i.e misbehaving and abusing of his wife by accused Sajid, he (PW5) has rightly deposed that he had not seen the entire incident. In view of above facts, the arguments of ld. counsels for accused are devoid of merits and therefore, it cannot be said that that PW5 was not present at the spot and did not see the incident. Further, his SC No.52/10 21/23 22 testimony cannot be disbelieved only on the ground that if he could not specify the names of accused, who had removed the ear ring and gold bangles in the incident.
27 In the present case PW4 has deposed the time of incident in between 9.00 Am to 10.00 AM, whereas as per the testimony of PW6, the incident occurred at about 10.00 AM to 11.00 AM. I am of the considered view that the said contradiction in the testimonies of PWs is not material one and the fact remains that the incident in question occurred in the morning hours of 26.8.06 as PW6 never deposed that it was noon or evening time.
28 In the present case, accused have examined Sh.Jamshed (DW1) and Azim (DW2) to show that there was a dispute between accused Rehmat Bee and complainant Sofia Begum on the issue of taking water from tanker and there was no incident of beating took place between the parties. No other accused except Rehmat Bee was present near the tanker. But in crossexamination DW2 has denied that he did not see the quarrel between the accused persons and Sofia Begum. It implies that DW2 had seen the quarrel between accused and PW4 29 Accused have also examined Ct.Mohan (DW3) and SI Kishore Kumar (DW4). They have placed on record some complaints lodged by accused Rehmat Bee. I am of the considered view that the SC No.52/10 22/23 23 testimony of DW3 & DW4 are of no help to the accused as all these complainants have been lodged by the accused after the incident in question.
30 In the present case, PW4 Sofia Begum, PW5 Mohd. Dawood and PW6 Yasir have supported the prosecution case on material points, I am of the considered view that their reliable and trustworthy testimony cannot be brushed aside merely because the IOs of the case have conducted the investigation in a biased and partial manner and spoiled the prosecution case by not conducting the investigation in a fair and sincere manner. I am of the considered view that both I.Os namely, PW7 Gulzar Singh and PW11 SI Ved singh have not performed their duties upto the mark and did not conduct the investigation fairly. They did not leave any stone unturned in spoiling the prosecution case.
From the material on record, I am of the considered view that prosecution has been able to prove its case beyond reasonable doubt against the accused. Conclusively accused are convicted in respect of offences U/s 323, 452 read with Section 34 IPC and section 395 IPC.
A copy of this judgment be supplied to convicts free of costs. Announced in open court today on (Smt. Bimla Kumari) 26.05.2011 Addl. Sessions JudgeII (North):Delhi SC No.52/10 23/23 24 SC No.52/10 24/23 25 SC No.52/10 25/23