Delhi District Court
State vs Sadaab @ Shamshad, on 4 June, 2012
IN THE COURT OF SH. RAVINDER DUDEJA: ADDITIONAL SESSIONS JUDGE; (EAST) FTC : E COURT: KARKARDOOMA COURT: DELHI. SESSIONS CASE No. 72/11 FIR No. 116/11 U/S: 307/34 IPC P.S: Farsh Bazar State Versus Sadaab @ Shamshad, S/o Munna, R/o B-343, NSA Colony, Delhi. Date of Institution : 26.08.2011 Date of Arguments : 29.05.2012 Date of Judgment : 04.06.2012 JUDGMENT
1. Prosecution case is that on 04.05.2011 at about 10.35 pm, Constable Mukesh Kumar from Dr. Hedgewar Hospital gave an information at Police Station Farsh Bazar that Rahul, son of Kamal was got admitted in the hospital in an injured condition by Dharmender with the history of quarrel. On this information, DD No. 34-A was recorded and was marked to SI Ombir Singh who went to Dr. Hedgewar Hospital with Constable Narender. The doctor declared Rahul unfit for statement and referred him to GTB Hospital. No eye witness was found either at Dr. Hedgewar FIR No. 116/11 1 of page 10 Hospital or at GTB Hospital. FIR was registered under Section 307 IPC. On 11.05.2011, injured Rahul was declared fit for statement. His statement was recorded wherein he stated that he was a rickshaw puller and had come to India from Nepal. He stated that he used to sleep at night at N.S.A. Colony, Subzi Mandi and that about 20-25 days ago at about 1.00 - 1.30 am in the night while he was sleeping, Sonu @ Ganja, Sadadad @ Sadhu and Sadaab came and woke him up and asked him to drop them at Vishwas Nagar but he refused and thereupon all the three boys who were in an intoxicated condition abused him and went away after threatening him. He further stated that on 04.05.2011, he was going on foot for labour work from NSA Colony Subzi Mandi and at about 10.30 pm when he reached at Nala near Anupam Apartments, Sonu @ Ganja, accused Sadaab and Sadadad @ Sadhu met him. Sadaab said "Pakad Lo Ise Aaj Saaley Ko Theek Kar Dete Hain, Yeh Hamare Kahne Se Usdin Rickshaw Lekar Nahin Gaya Tha." Sonu and Sadadad caught his hands and Sadaab stabbed him on his abdomen with a knife due to which he fell down and raised the noise. On seeing a cyclist coming, all the three persons including accused Sadaab fled away. He then became unconscious. On 11.05.2011, SI Arun Sandhu informed at Police Station Farsh Bazar vide DD No. 32-B that Sonu and Sadadad were apprehended in case FIR No. 139/11 under Section 392/34 IPC PS Anand Vihar and that they have made disclosure with regard to the present case. On 23.05.2011, Sonu and Sadadad were apprehended with the permission of the JJ Board and they were sent to observation home and were later released on bail. On 24.05.2011, accused Sadaab @ Shamshad was arrested. He got recovered the knife used in the commission of offence. The clothes of the injured and his blood sample were sent to FSL. Pending the receipt of FSL result, charge sheet was FIR No. 116/11 2 of page 10 prepared under Section 307/34 IPC. Later on, FSL result was obtained and filed in court.
2. After compliance of Section 207 Cr. PC, the case was committed to Sessions Court. Charge under Section 307/34 IPC was framed against accused Sadaab @ Shamshad to which, he pleaded not guilty.
3. In order to prove its case, prosecution examined nine witnesses. PW-1 is HC Gajender, Duty Officer. He recorded the FIR Exbt. PW-1/A. PW-2 is Constable Narender. He is the witness of investigation. He had visited Dr. Hedgewar Hospital and then at GTB Hospital with IO SI Ombir Singh. He had taken the Rukka to the police station for the registration of the FIR.
PW-3 is Rahul Shreshtha. He is the complainant/injured.
PW-4 is Constable Adesh. He is the witness of arrest of accused. He deposed that on 24.05.2011 on the basis of secret information, SI Ombir Singh apprehended accused Sadaab and arrested him vide memo Exbt. PW-4/A and conducted his personal search vide memo Exbt. PW-4/B. He further stated that on interrogation, accused gave disclosure statement Exbt. PW-4/C. He stated that accused then took them at D Block latrine at NSA Colony from where he got recovered the old clothes lying on the roof of the latrine and also got recovered a steel knife FIR No. 116/11 3 of page 10 lying under the clothes. Sketch of the knife was prepared which is Exbt. PW-4/D. The knife was kept in a cloth pullanda which was sealed with the seal of CDS and was seized vide memo Exbt. PW-4/E. Accused had then pointed out the place of occurrence vide pointing out memo Exbt. PW-4/F. PW-5 is Nand Kishore, Record Clerk, Dr. Hedgewar Hospital. He produced the hospital record in respect of injured Rahul which is Exbt. PW-5/A. PW-6 is Constable Mukesh Kumar, Duty Constable, Dr. Hedgewar Hospital. He deposed that on 04.05.2011, one patient Rahul was medically examined in the hospital and after his examination, the doctor handed over two sealed pullandas with the sample seal of the hospital which was handed over by him to IO SI Ombir Singh who seized the same vide seizure memos Exbt. PW-6/A to Exbt. PW-6/C. PW-7 is Dr. A. Saha from Dr. Hedgewar Hospital. He had examined the injured and prepared MLC Exbt. PW-7/A. PW-8 is SI Ombir Singh, IO of this case. During investigation, he first went to Dr. Hedgewar Hospital and then to GTB Hospital. He found the injured unfit for statement. No eye witness was found in the hospital. He then made his endorsement Exbt. PW-8/A on DD No. 34 and sent the rukka to police station through Constable Narender for the registration of the FIR. He had seized the pullandas given to him by the Duty Constable. On 11.05.2011, he recorded the statement of injured after he was declared fit for statement by the doctor. He received the information about the arrest FIR No. 116/11 4 of page 10 of Sonu and Sadadad in case FIR No. 139/11 under Section 392/34 IPC and about the disclosure given by them. With the permission of the JJ Board, he arrested both of them. On 24.05.2011 on the basis of secret information, he arrested the accused Sadaab and recorded his disclosure statement Exbt. PW-4/C. Pursuant to the disclosure statement, at the instance of accused, he recovered the knife. He had sent the exhibits to FSL and prepared the charge sheet. Later on, he collected the FSL result Exbt. PW-8/C and Exbt. PW-8/D and filed the same in court. In reply to a leading question of the learned APP, he admitted that he had prepared the site plan Exbt. PW-8/E on the pointing out of Dharmender on 05.05.2011.
PW-9 is Dr. Bhavesh Chadha from GTB Hospital. He gave the opinion that the nature of injury was grievous.
4. Statement of accused was recorded under Section 313 Cr. PC wherein he stated that he is innocent. He refused to lead any evidence in his defence.
5. Arguments were heard from the learned APP on behalf of state as also from the learned Amicus Curiae on behalf of the accused. The learned Amicus Curiae has argued that PW-3 in his cross examination states that the assailants were not known to him and therefore it is not understood how he gave the names of the accused in his statement to the police and therefore it is manipulated and fabricated case. It is further submitted that as per prosecution case, injured was rushed to the hospital by Dharmender but PW-3 has stated that he was rushed to hospital by the police. It is further submitted that prosecution has failed to produce FIR No. 116/11 5 of page 10 Dharmender. Moreover, it is also argued that injured has deposed that he had regained his consciousness next day in the hospital and his statement was recorded but according to IO, the injured was declared fit for statement on 11.05.2011 and only thereafter his statement was recorded. It is also argued that police has not obtained any opinion from the doctor as to whether the injuries found on his person were possible from the knife allegedly recovered at the instance of accused and therefore it cannot be said that the knife was the weapon of offence. It is thus submitted that keeping in view the facts and circumstances, prosecution has failed to prove its case against the accused beyond doubt. The learned APP, however, has submitted that injured had supported the prosecution case and there is no reason to disbelieve his testimony.
6. I have carefully gone through the records of the case and have given my thoughtful consideration. PW-3 Rahul Shreshtha deposed that on 04.05.2011 at about 10.00 pm while he was walking on foot at NSA Colony and was going towards Subzi Mandi for sleeping, three boys came from behind. Sonu and Sadadad @ Sadhu caught him from his hands and accused Sadaab stabbed him on the middle of his abdomen. He raised alarm for help. A person was coming from behind on a bicycle and on seeing that cyclist, accused and both the JCLs ran towards the park. Thereafter, he became unconscious. Police came at the spot and rushed him to GTB Hospital. He further deposed that about 20-25 days prior to the incident, all the three assailants had met him at NSA Colony at about 1.00
- 1.30 am. They were drunk. At that time, he was sleeping near his rickshaw. They asked him to take them to Subzi Mandi but he refused. On this, the accused and the JCLs threatened to teach him a lesson. He FIR No. 116/11 6 of page 10 further stated that he had regained his consciousness next day in the hospital. Police met him in the hospital. The witness was cross examined by the learned APP with the permission of the court and in the said cross examination, he admitted that police had recorded his statement on 11.05.2011. He admitted that he remained hospitalized at GTB Hospital till 29.05.2011. In cross examination by the learned Amicus Curiae, PW-3 stated that he regained his senses and was discharged from the hospital on the next day of the incident. He stated that he was informed by the police about the arrest of the accused on 05.05.2011. As per MLC Exbt. PW-7/A, PW-3 Rahul was brought to the hospital by one Dharmender with the alleged history of assault. As per MLC, the injured was conscious but drowsy. There are three endorsements of the doctor on the MLC, the first endorsement is that patient was unfit for statement. Perhaps, this endorsement was made on the first day when the injured was brought to the hospital. As per the second endorsement dated 09.05.2011. The patient was still unfit for statement. The third endorsement is dated 11.05.2011 that patient was fit for statement. Thus, it is proved from the MLC that PW-3 Rahul was still in the hospital on 05.05.2011 and was unfit for statement on that day. PW-3 appears to be confused with regard to the date of his discharge from the hospital and the date of recording of his statement. Apart from this infirmity, the remaining statement of PW-3 is straight forward and cogent. He has withstood the test of cross examination and there is no reason to disbelieve his testimony.
7. The chief plank of argument of learned Amicus Curiae is that the identity of accused is doubtful. It has been submitted that accused was not known to the injured and therefore he could not have named them in FIR No. 116/11 7 of page 10 his statement to the police. No TIP was conducted and therefore the identification of accused for the first time in court without previous TIP is no identification in the eyes of law.
8. It has come in the testimony of PW-3 that about 20-25 days prior the incident, accused and two JCLs asked him to take them to Subzi Mandi in rickshaw and on his refusal, they threatened to teach him a lesson. In cross examination, PW-3 made following statement:
"Accused and both JCLs were not known to him prior to that incident and that they met him for the first time at the time of that incident. At that time, I was not aware of their names but as they were talking with each other, from that I came to know about their names."
9. It becomes evident from the cross examination that although PW-3 did not know the accused prior to the first incident but he heard them talking and thus came to know of their names. Hence, he knew about the identity of accused and the other assailants by their names prior to the second incident of stabbing. In further cross examination, PW-3 admits that on his visit to the police station, he was shown the accused. Since he had seen the accused twice and was aware about his name also, the accused being shown to him at the police station shall not mean that identification of accused in court was at the behest of the police. In my view, there is no dispute with regard to the identity of the accused. It is not the defence of the accused that there was any previous enmity or ill-will between accused and PW-3 for his false implication and therefore there is no reason to disbelieve the testimony of PW-3.
FIR No. 116/11 8 of page 10
10. As per prosecution story and also as per MLC, the injured was brought to the hospital by Dharmender but PW-3 stated that police came at the spot and he was taken to GTB Hospital. PW-3 himself states that he had become unconscious at the spot and therefore he might not have been knowing as to who took him to the hospital. Be as it may, it is a minor contradiction and therefore should not be given much importance. Prosecution could not produce Dharmender in court as he was not traceable and therefore it is not a case where prosecution withheld the evidence deliberately and therefore no adverse inference shall be drawn against the prosecution.
11. As per FSL result, blood has been found on the knife recovered at the instance of accused but no opinion was received with regard to the blood group found on the knife. Admittedly, the knife was not shown to the doctor to obtain his opinion as to whether the injuries found on the person of injured were possible from the said knife. The knife was also not shown to the injured to confirm that it was the same knife with which the accused had stabbed him and therefore it is not proved that the knife Exbt. P-2 recovered at the instance of accused was the weapon of offence.
12. On the basis of surgical record, Dr. Bhavesh Chadha gave the opinion that the injuries were grievous in nature. Dr. A. Saha (PW-7) has proved that the injured had received the incised wound on his abdomen midline with eviscerated bowel loops. Thus, it is proved that Rahul had received stab injuries on the vital part of his body.
13. Accused has taken the defence that PW-3 is a Nepali national FIR No. 116/11 9 of page 10 and not being an Indian citizen, did not want to annoy the police officials and therefore deposed at the instance of the IO to please him. It is proved on record that injured was a Nepali national but there is no basis for coming to the finding that on account of this reason, he deposed falsely to implicate the accused at the instance of the police.
14. Notwithstanding the fact that prosecution has failed to connect the recovered knife with the offence alleged but on the basis of the testimony of PW-3, I am of the opinion that prosecution has been able to prove its case against the accused beyond doubt. I therefore hold the accused Sadaab guilty and convict him under Section 307/34 IPC.
(RAVINDER DUDEJA) ADDL. SESSIONS JUDGE:FTC/E-COURT/KKD/DELHI.
ANNOUNCED IN THE OPEN COURT ON 04.06.2012.
FIR No. 116/11 10 of page 10