Delhi District Court
State vs . 1. Taufiq on 12 August, 2011
IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS
JUDGEII (NORTHWEST): ROHINI COURTS: DELHI
Sessions Case No. 958/2008
Unique Case Identification No. : 02404R0359002008
State Vs. 1. Taufiq
S/o Aflatoon
R/o I803, Jahangirpuri, Delhi.
(Convicted)
2. Yusuf
S/o Aflatoon
R/o I803, Jahangirpuri, Delhi.
(Convicted)
3. Bablu
S/o Mahesh Kumar
R/o J816, Jahangirpuri, Delhi.
(Convicted)
4. Jugal Kishore
S/o Balkishan
R/o I614, Jahangirpuri, Delhi
(Convicted)
5. Ashish Goyal @ Ashu
S/o Braj Mohan Goyal
R/o E13, Shivaji Road,
Adarsh Nagar, Delhi.
(Convicted)
SC No. 958/08, State Vs. Taufiq etc., FIR No. 656/07, PS Jahangirpuri Page 1 of 71
FIR No. : 656/2007
Under Section : 307/341/506/34 Indian penal Code.
Police Station : Jahangirpuri
Date of committal to Sessions Court : 17.7.2008
Judgment reserved on : 5.8.2011
Judgment pronounced on : 5.8.2011
JUDGMENT
Brief Facts:
As per the allegations, on 16.10.2007 at about 8 PM at I Block, Jahangirpuri, near corner of Park at 500 wali gali, the accused Taufiq, Yusuf, Bablu, Jugal Kishore and Ashish Goyal @ Ashu Baniya, in furtherance of their common intention caused injuries on the right hand and left knee of Dharmender son of the complainant Smt. Tulsi Devi with the help of sword, Chappar, Hockey Stick, after wrongfully retraining them and thereafter also threatened to kill them.
Case of prosecution in brief:
The case of the prosecution in brief is that on 16.10.2007 on the receipt of DD No. 67B regarding quarrel at 500 Wali Gali, near Corner of the park, SI Sultan Singh along with HC Parmanand reached there where Ct. Jai Pal met them and they came to know that SC No. 958/08, State Vs. Taufiq etc., FIR No. 656/07, PS Jahangirpuri Page 2 of 71 the injured had already been removed to BJRM Hospital. SI Sultan Singh left Ct. Jaipal at the spot for guarding the spot and he along with HC Parmanand went to Hospital and obtained the MLC of Dharmender and where Smt. Tulsi Devi met them and injured Dharmender was found unfit for giving his statement. SI Sultan Singh recorded the statement of Smt. Tulsi Devi wherein she has stated that a quarrel had taken place between Chand, Sultan and Rajender, Sonu. She has further stated that Sonu and Rajender are friend of her son Dharmender and Taufiq and Yusuf asked her son Dharmender to call Sonu and Rajender in IBlock Jahangir Puri as they wanted to beat them, but her son Dharmender refused and this was the reason for enmity of Taufiq and Yusuf with her son Dharmender. The complainant Tulsi Devi further told the IO that on 16.10.2007 her son Dharmender was taking her to the doctor on his motorcycle bearing No. DL 85 AC 6910, when at about 8.30 PM as they reached IBlock at the corner of the park, 500 wali gali, Jahangir Puri, Taufiq and Yusuf came in front of the motorcycle and got stopped it. Taufiq was having Talwar in his hand and Yusuf was having Chappar and they both assaulted her son Dharmender with Talwar and Chappar as a result her son sustained injuries on the right hand by sward (talwar) and on the right knee by Chappar. According to her, in the meantime Jugal, Bablu and Ashu Baniay whom she knew previously, also came there and started beating her son SC No. 958/08, State Vs. Taufiq etc., FIR No. 656/07, PS Jahangirpuri Page 3 of 71 Dharmender. She has stated that Jugal had given beatings by Chappar, Bablu has beaten her son by base ball bat and Ashu had given beatings to her son by way Hockey to her son Dharmender and when she tired to save her son Dharmender, the accused Taufiq swayed the sword in the air and threatened that if she comes in between him and her son Dharmender to save, he will kill her also.
Thereafter, she raised an alarm as result the people from the nearby started collecting and on seeing the public persons coming towards them they ran away from the spot. Thereafter, her other sons Ravi and Jitender also came to the spot. She took Dharmender to BJRM hospital for his treatment.
On the basis of the statement of Smt. Tulsi Devi, SI Sultan Singh prepared the rukka and got the case registered through HC Parmanand. He also received from Dr. Neeraj, SR Surgery, BJRM hospital one parcel duly sealed with the seal of BJRM hospital containing shirt of injured Dharmender and took the same into possession. During investigations, on a secret information all the five accused namely Taufiq, Yusuf, Bablu, Jugal Kishore and Ashish Goyal @ Ashu Baniya were apprehended from a Dharamshala at Haridwar who disclosed their involvement in the present case and therefore they all were arrested in this case. After completing the investigations, the charge sheet was filed in the court. SC No. 958/08, State Vs. Taufiq etc., FIR No. 656/07, PS Jahangirpuri Page 4 of 71 CHARGE:
Ld. predecessor of this court settled charges under Section 307/506/341/34 Indian Penal Code against all the five accused Taufiq, Yusuf, Bablu, Jugal Kishore and Ashish Goyal @ Ashu Baniya to which they pleaded not guilty and claimed trial. EVIDENCE:
The prosecution in order to discharge the onus upon it, has examined as many as sixteen witnesses:
Public witnesses:
PW1 Dharmender is the injured who has deposed that on 16.10.2007, he was going to take medicine for his mother with his mother on bike No. DL 4S AC 6910 and at around 8.00/8.15 pm and when they reached at the corner of 500 wali gali, Jahanagirpuri, a quarrel took place between him and some boys and it was dark night and he was not able to recognize them. According to him, he sustained injuries as one of the boys gave iron rod blow on his head on account of which he fell down and became unconscious and thereafter he did not know what happened with him and with his mother.
Addl. PP with permission of the court has cross examined the witness Dharmender as he was resiling from his previous SC No. 958/08, State Vs. Taufiq etc., FIR No. 656/07, PS Jahangirpuri Page 5 of 71 statement. The witness has in his crossexamination deposed that he knew Chand and Sultan as they were residing in their neighborhood. He has admitted that about one month prior to this incident a quarrel took place between Chand and Sultan on one side and Rajender and Sonu on other side. He has further admitted that Chand and Sultan were cousin brothers of Yusuf and Taufiq. He has identified the accused Yusuf and Taufiq in the court. He has admitted that Yusuf and Taufiq wanted to take revenge. He has denied that Yusuf and Taufiq asked him many times to call Rejender and Sonu who were his friends at IBlock, Jahangirpuri so that they can take revenge and when he refused they became annoyed with him. He has denied that on 16.10.2007 at around 8.00 pm when he alongwith his mother reached at the corner of IBlock, Jahangirpuri, Taufiq and Yusuf put their motorcycle before his motorcycle and said that he favour Sonu and Rajender and he was not calling them at Iblock at their instance, so that now they would finish him, and he had not stated so to the police (the witness confronted with portion B to B of statement mark A where it was so recorded). He has denied that there Taufiq was carrying sword like Chappar and Yusuf was carrying a Chopar and Taufiq gave blow with the same on his right hand and Yusuf gave blow with Chappar on his head and left knee and when Yusuf was giving blow on his stomach, then he put his left hand to save himself and due to which he sustained injuries on his SC No. 958/08, State Vs. Taufiq etc., FIR No. 656/07, PS Jahangirpuri Page 6 of 71 left hand. According to him, he had not stated so to the police (the witness was confronted with portion C to C of statement mark A where it was so recorded). He has voluntarily added that he was not able to see who caused him injuries. He has denied that in the meantime Bablu, Jugal and Ashu came there. He deposed that he did not tell so to the police (witness was confronted with portion D to D of statement mark A where it was so recorded) and has voluntarily added that as he was unconscious so he could not say so. He has admitted that he knew accused Bablu, Jugal and Asish Goel @ Ashu. He has denied that Bablu and Jugal were carrying Chappar and Ashu was carrying danda and they started giving beating to him with their respective weapons. He deposed that he did not tell so o the police (the witness was confronted with portion E to E of statement mark A where it was so recorded). The witness has denied that when his mother came to save him then Taufiq by showing his weapon threatened his mother that if she will save her son, then they would kill her also and thereafter his mother raised alarm and the accused continued to gave beating to him and he became unconscious and he had not made any such statement to the police (witness was confronted with portion F to F of statement mark A where it was so recorded). He has admitted that he was medically examined. He has further admitted that on 28.04.2009 he had moved an application for cancellation of bail of accused persons as they threatened him and his SC No. 958/08, State Vs. Taufiq etc., FIR No. 656/07, PS Jahangirpuri Page 7 of 71 mother which application is Ex.PW1/A and it bears his signatures at point A. He has also admitted that one case U/s 325 IPC is pending against him where the accused Taufiq is the complainant in that case. He has denied that as the said matter between him and accused had been compromised, that is why he is deposing falsely and not identifying the accused intentionally. He has denied that all the accused caused injuries to him and when his mother Tulsi Devi came to same him they threatened her.
However, later, when the witness Dharmender was questioned by the court wherein he stated that the application Ex.PW1/A was written by a lawyer at his instance and has admitted that the contents thereof are correct. The witness has been further asked whether the present case being tried today is a true case or not on which he stated that it is true and correct case. He has admitted that he was given beatings by the present accused persons and was also threatened by them however now they have not threatened him as they have now compromised their disputes and he does not wish to continue with the case any further as he does not wish to be in any problem. On further question by the court, the witness Dharmender has deposed that they have compromised their disputes due to which he does not wish to continue with the present case any longer.
SC No. 958/08, State Vs. Taufiq etc., FIR No. 656/07, PS Jahangirpuri Page 8 of 71
PW7 Smt. Tulsi Devi during her examinationinchief has deposed that she knew Chand and Sultan as they are cousins of Yusuf and Taufiq who resides in IBlock, Jahangir Puri. According to her, the quarrel had taken place between Chand, Sultan and Rajender, Sonu. She has deposed that Sonu and Rajender are friend of her son Dharmender and the accused Yusuf and Taufiq had asked her son Dharmender to call Sonu and Rajender at IBlock, Jahangir Puri as they wanted to beat them to which her son Dharmender had refused. It was the reason that there was hostility of Yusuf and Taufiq with her son Dharmender. According to her, it was 16th day before Deepawali and after Eid Festival about 23 years back but she does not remember the exact month and year due to old age, her son Dharmender was taking her to a doctor on his motor cycle at about 8.30PM when they reached I block at the corner of Park, 500 wali gali, Jahangir Puri, Yusuf and Taufiq came before their motor cycle and got the same stopped. Yusuf and Taufiq were having a Chappar like object and they both attacked her son Dharmender with the said object as a result of which her son sustained injuries on whole body and at the same time Jugal, Bablu and Ashu had also come there whom she knew being the residents of the same locality and they were also having dandas, hockey and also started beating her son. According to the witness, she tried to save her son, on which the accused Taufiq started swaying the Chappar like object in the air and SC No. 958/08, State Vs. Taufiq etc., FIR No. 656/07, PS Jahangirpuri Page 9 of 71 threatened her that if she comes forward to save her son, they would kill her. On this, she raised an alarm on which all the accused ran away from the spot and thereafter her other sons Ravi and Jitender also came there. Thereafter, she took her son Dharmender to the BJRM Hospital where police came and recorded her statement vide Ex.PW7/A which bears her signatures at point A. The witness has further deposed that the IO took the blood stained clothes of her son Dharmender into possession vide seizure memo Ex.PW7/B bearing her signatures at point A. The witness has correctly identified all the accused by name who according to her are residents of her mohalla. The has witness also correctly identified the case property i.e. one shirt and one vest which are Ex.P1 and Ex. P2 respectively.
During her cross examination by Ld. Defence Counsel, witness Tulsi Devi has deposed that she is a house wife and has a family comprising of three sons and a daughter and only her eldest son is married and the injured is her third child. According to her, on the date of the incident, her son / injured Dharmender who is 8th pass used to put a bazar of bartan. She has deposed that all the accused were previously known to her as they are residents of the same area but he is not on visiting terms with their families. She has further deposed that on the day of the incident her son Dharmender was taking her to Dr. Meenakshi as she was receiving regular treatment from the clinic of Dr. Meenakshi. She has further deposed that she SC No. 958/08, State Vs. Taufiq etc., FIR No. 656/07, PS Jahangirpuri Page 10 of 71 does not remember if she had given her treatment papers to the IO to show that she was regularly receiving treatment from Dr. Meenakshi. She has denied the suggestion that her son did not receive any injury in the incident. She has admitted that that Dharmender had been taken to police station previously on account of quarrel with the boys of the area. She has further admitted that Dharmender is facing trial in a criminal case bearing FIR No. 26/09, PS Jahangirpuri which is Ex.PW7/DX1, and has voluntarily added that it was a false case. She has also admitted that the accused Taufiq is the complainant in the said case but has voluntarily added that they were not even present in Delhi when this false case was foisted upon Dharmender by Taufiq. She has denied the suggestion that no such incident had taken place and she had created this incident at the instance of her son Dharmender. She is unable to tell if prior to this incident there was no dispute between her son and the accused persons. According to the witness, she has made the PCR Call at 100 number from land line phone after coming back home. She has voluntarily stated that she had made this call after consulting her children. She does not recollect the land line number from which she made this call. She has denied the suggestion that she did not call on 100 number and that is the reason she does not remember the number. She has deposed that she had taken her son to the hospital along with her other sons namely Jitender and Ravi. She has denied the suggestion SC No. 958/08, State Vs. Taufiq etc., FIR No. 656/07, PS Jahangirpuri Page 11 of 71 that she was not present with her son when the incident took place and the injuries inflicted upon her son by other persons with whom he has previous rivalry. She has deposed that she had told the doctor the name of the boys who had inflicted injuries upon her son. She has denied the suggestion that she had not told the doctor the name of the assailants. She has further stated that she cannot tell whether the mobile No. 9868878145 belongs to her son but admits that she does not possess any mobile phone. She has denied the suggestion that some other person had made a PCR call regarding her son lying in the corner of the road with stab injuries and has voluntarily stated that it was she who had made the call. According to the witness she had told the police the names of the boys who had inflicted injuries upon her son when she made the 100 number call. She has further deposed that first time her statement was recorded at LNJP Hospital. She has denied the suggestion that no recovery of any knife was made in her presence and states that though the recovery was not made in her presence but she was told by the police that they have recovered a knife from the cooler. She has admitted that her signatures were never taken on any seizure memo of knife. She has denied the suggestion that there was no recovery or that the accused persons never told her son in her presence to call Chand and Sultan and has voluntarily added that her son told her about the same. She has denied that she is deposing falsely as the accused have also got a SC No. 958/08, State Vs. Taufiq etc., FIR No. 656/07, PS Jahangirpuri Page 12 of 71 case registered against her son and she want to pressurize the accused into settling the said dispute.
PW14 Sunil Kumar in his examination in chief has deposed that he is running a photo studio at C22, Ramgarh Road, Jahangir Puri, Delhi in thename and style of Jyoti Studio. On 16.10.2007 on the request of the IO he had gone at 500 wali gali near corner of park, I Block,Jahangir Puri, Delhi where he found blood and on the instructions of the IO, he took five photographs at the spot from his digital camera which photographs are Ex.PW14/A1 to Ex.PW14/A5. This witness has not been cross examined by Ld. Defence Counsel and the entire testimony has gone unrebutted. Medical Evidence:
PW2 Dr. Neeraj Chaudhary has stated that he had been deputed in this case by the MS of the hospital to depose before Court. He has seen MLC No. 20953 of Dharmender, S/o Late Sh. Sukhbir, Aged 19 years male, who was brought to hospital on history of physical assault with sharp object on 16.10.2007. According to him, the patient was initially examined by Dr. Parveen and as per his examination there was CLW of size 2X1 cm over the left eye brow, CLW over the back of left forehead of size 7X3cm, 5x2 cm and 2x1cm and CLW and 1X1cm. Thereafter, patient was referred to SR Surgery and SR Ortho. where the patient was examined by Dr. SC No. 958/08, State Vs. Taufiq etc., FIR No. 656/07, PS Jahangirpuri Page 13 of 71 Rajesh and he had also opined nature of injury as grievous on 18.02.08 and according to Dr. Rajesh he had opined the nature of injury as grievous as per the Xray done by Dr. Sanjay, unit of Dr. HG Vyas and Xray shows fracture of left sheft of ulna and fracture of greater to traocltera. According to this witness, at present Dr. Parveen and Dr. Rajesh are not working in their hospital and their present whereabouts are not known. He deposed that he is well acquainted with their handwriting and signatures as he has seen them signing and writing during the course of his duty. Witness has proved the finding of Dr. Parveen on the MLC is Ex.PW2/A which bears signatures of Dr. Parveen at point A and the finding of Dr. Rajesh is Ex.PW2/B which is at point X to X and bears signatures of Dr. Rajesh at point A and also at point X1 to X1 on the MLC and the same is Ex.PW2/C and bears signatures of Dr. Rajesh at point A and B. This witness was not cross examined by Ld. defence counsel and hence the entire testimony has gone uncontroverted.
PW4 Dr. R. C. Besra during his examination in chief has deposed that he has been authorized by the Head of the Department to depose in this case on behalf of Dr. Santosh who has left the services from the hospital and his whereabouts are not known. According to him, Dr. Santosh was working as Junior Resident on 17.10.2007 at Safdarjung Hospital who examined the patient SC No. 958/08, State Vs. Taufiq etc., FIR No. 656/07, PS Jahangirpuri Page 14 of 71 Dharmender, S/o Sh. Sukhbir Prakash aged 19 years, male, with alleged history of assault vide Bed Head Ticket Ex.PW4/A bearing signature of Dr. Santosh at point A. The witness has further deposed that Dr. Sanjay was also working as Senior Resident in the aforesaid hospital. He deposed that Dr. Santosh examined the said patient under the supervision of Dr. Sanjay who also left the services from the said hospital. According to him the said Bed Head Ticket Ex.PW4/A also bears the signatures of Dr. Sanjay at point B. He has further deposed that he is well conversant with the hand writing and signature of Dr. Sanjay and Dr. Santosh as he has seen them while writing and signing in the course of his duty. He has further deposed that as per the record, the patient went LAMA on 24.10.2007. This witness has not been cross examined by Ld. defence counsel and hence the entire testimony of this witness has gone uncontroverted. Police / official witnesses:
PW3 Retd. SI Ranbir Singh during his examination in chief has deposed that on 29.10.2007 he was posted as SI in Police Station Jahangirpuri and on that day the investigation of this case was handed over to him. According to him, on that day accused Jugal Kishore has surrender in the court of Ld. MM and after taking the permission from Ld. MM he was interrogated and arrested vide memo Ex.PW3/A bears his signatures at point A and his personal SC No. 958/08, State Vs. Taufiq etc., FIR No. 656/07, PS Jahangirpuri Page 15 of 71 search was conducted vide memo Ex.PW3/B and he made disclosure statement Ex.PW3/C bearing his signatures at point A. He took one day police custody remand of the accused and also searched for the weapon of offence which could not be recovered. He deposed that on bext day the accused was produced before Ld. MM and sent in judicial custody. Thereafter, case file was handed over to MHC (R). This witness was not cross examined by Ld. defence counsel and hence the entire testimony has gone unrebutted.
PW5 HC Satya Pal during his examination in chief has deposed that on 16.10.2007 he was posted at police station Jahangir Puri as Duty Officer from 4.00 PM to 12.00 Night and on that day at about 10.50 PM, HC Permanand brought the rukka sent by SI Sultan Singh which he received and on the basis of which he has recorded FIR No. 656/07, computerized copy of the same is Ex.PW5/A. He has also made endorsement on the rukka vide Ex.PW5/B and handed over the same to HC Permanand for further handing over the same to the IO. (Original seen and returned). This witness has not been cross examined by Ld. defence counsel and hence his testimony has gone unrebutted.
PW6 Ct. Ravi Prakash has deposed that on 16.10.2007 he was posted at Police Station Jahangir Puri as DD writer from 4.00 PM to 12.00 Midnight and on that day he received information regarding hitting a boy with a knife at IBlock, 500 wali gali, at the SC No. 958/08, State Vs. Taufiq etc., FIR No. 656/07, PS Jahangirpuri Page 16 of 71 corner of the park. He has recorded this information vide DD No. 67B vide Ex.PW6/A which bears his signatures at point A. On the same day at about just after about one minutes he received another information from a person that his brother has been killed and he is taking his brother to BJRM Hospital. This information was also recorded vide DD No. 68B which is Ex.PW6/B bearing his signatures at point A. This witness has not been cross examined by Ld. defence counsel and hence his testimony has gone unrebutted.
PW8 HC Rajbir Singh, PW11 Ct. Jai Pal Singh and PW12 HC Ramesh Kumar were all the members of police party who had gone to Haridwar in whose presence the arrest of the accused was made. They have deposed in identical terms and there is no much contradiction in their cross examination and have corroborated each other on all material aspects. In the examination inchief, these witnesses who are the members of police party have deposed that on 23.10.2007 on receipt of the secret information they along with IO / SI Balbir Singh and Ct. Sudhir went to Gujrati Samaj Dharamshala, Rani Jhansi Wali Gali, Shiv Murti Road, Distt. Haridwar in the investigations of this case. According to these witnesses, the accused Yusuf was apprehended by HC Rajbir (PW8), accused Taufiq was apprehended by the IO/ SI Balbir Singh, accused Bablu was apprehended by Ct. Jai Pal (PW11) and accused Ashu @ Ashish Goyal was apprehended by Ct. Sudhir. According to these SC No. 958/08, State Vs. Taufiq etc., FIR No. 656/07, PS Jahangirpuri Page 17 of 71 witness, all these accused were known to them being Bad Characters of the area and were interrogated and arrested in this case vide memos Ex.PW8/A to Ex.PW8/D respectively and the accused were personally searched vide memos Ex.PW8/E to Ex.PW8/H respectively. They have proved that all the accused were interrogated and their disclosure statements were recorded which are Ex.PW8/I to Ex.PW8/L. The witness PW8 HC Rajbir Singh has also proved that on 24.10.2007 he again join the investigations of this case with the investigating officer and the accused Yusuf led them to his house at I803, Jahangirpuri where he got recovered one Chura / Chappar from inside the cooler under the slab in the varandah first floor as the same Churra by which he along with his coaccused persons caused injuries to one Dharmender on 16.01.2007. According to PW8 HC Rajbir Singh, the said Churra was measured and the investigating officer prepared the sketch of the Chura vide Ex.PW8/M and on measurement, the total length of the churra was found to be 38.2 inches; handle was of 13.2 inches; blade was of 25 cms. and the width of the blade was 5.6 cms. According to the witness HC Rajbir Singh (PW8), the said churra was wrapped in the cloth and sealed with the seal of BS and the sealed parcel was taken into possession vide seizure memo Ex.PW8/N. PW8 HC Rajbir has proved that his statement was recorded and case property was deposited in the SC No. 958/08, State Vs. Taufiq etc., FIR No. 656/07, PS Jahangirpuri Page 18 of 71 malkhana. He has correctly identified all the accused in the court and the case property i.e. one churra which was got recovered by accused Yusuf which is ExP3.
In his cross examination the witness PW8 Ct. Rajbir Singh has deposed that he does not know the details of the information received regarding the accused and states that it was in the knowledge of the investigating officer. According to the witness, the IO has made the DD entry in the police station for the information about the outstation and at about 11 AM they left for Haridwar from the police station by a Tavera Car whose number he does not remember nor he knows from where the said car was hired. The witness has deposed that they had reached Haridwar at 6 PM and after reaching there, the IO had made the local inquiry and at 9 PM they reached at Gujrati Samaj Dharamshala and arrested the accused person at the gate of said Dharamshala. The witness has deposed that they did not inform the local police about the said raid. He has deposed that firstly they interrogated the accused persons one by one then and then they were arrested, but they did not inform the local police about the arrest of accused. He has admitted that many persons were present at the spot where the accused were arrested and IO also requested some public persons to join the investigations but they refused and IO had not issued any notice to those who had refused to join the investigations. He is unable to tell whether the officials of the SC No. 958/08, State Vs. Taufiq etc., FIR No. 656/07, PS Jahangirpuri Page 19 of 71 management committee were present inside the aforesaid Dharamshala or not. According to him, it took them around three hours for completing the proceedings and after 12:05 Midnight they left Haridwar for Delhi and reached at police station at about 8:30 AM. He has deposed that he cannot say whether any DD entry regarding arrival and arrest of the accused persons were made in the police station. He has also deposed that they reached the house of the accused at about 11 AM and at that time some public persons had also gathered there and IO had requested to them to join the investigations but none agreed. He states that the IO did not give any notice to those persons who had refused to join the investigations. According to him, IO had not prepared any site plan regarding recovery of weapons in his presence. He has deposed that after arresting the accused, IO informed the parents of the accused from the police station. He has denied the suggestion that all the accused persons were lifted from their respective houses and falsely implicated in the present case. He has further denied that he has deposed falsely at the instance of the IO being a police official.
PW11 Ct. Jai Pal Singh in his examinationinchief has deposed that on 16.10.2007 he was posted at police station Jahangirpuri and at about 9:10 PM he came to know that some quarrel had taken place at IBlock, Jahangirpuri, 500 wali gali and he reached there and found the blood present near corner of park and he SC No. 958/08, State Vs. Taufiq etc., FIR No. 656/07, PS Jahangirpuri Page 20 of 71 came to know that injured has been removed to BJRM Hospital. He has deposed that at the same time HC Parmanand came there but no witness met them and he was left at the spot for gardening the spot whereas SI Sultan Singh and HC Parmanand went to BJRM Hospital and came back to the spot with complainant Smt. Tulsi Devi. According to him, he was sent by the IO to bring the photographed and he along with photographer Sunil Kumar came to the spot. Thereafter he left the photographer and was sent to trace the accused persons and came to the spot at about 1:00 AM (midnight). He has deposed that he informed the IO that two accused Taufiq and Yusuf are real brothers and Bad Characters of the area and used to reside in IBlock, Jahangirpuri. He had also told the IO that Jugal used to reside in I614 and Bablu, S/o Mahesh used to reside at J816, Jahangirpuri and Ashu is resident of Adarsh Nagar. According to this witness, no tampering was done during the period he remained at the spot and his statement was recorded by the IO. This witness has corroborated the testimony of PW8 Ct. Rajbir Singh on the aspect of the apprehension and arrest of the accused from Haridwar. According to him, on 24.10.2007 he again joined the investigations of this case with the investigating officer and the accused Bablu led them to his house at I803, Jahangirpuri where he got recovered one Chura/ Chappar from inside the cooler under the slab in the varanda first floor as the same Churra by which he along with his coaccused SC No. 958/08, State Vs. Taufiq etc., FIR No. 656/07, PS Jahangirpuri Page 21 of 71 persons caused injuries to one Dharmender on 16.01.2007. The said Churra was measured and IO prepared the sketch vide Ex.PW11/A, the total length of the Churra was found to be 40 cms, handle was of 12.7 cms, blade was of 27.3 cms and the width of the blade was 7.5 cms. Thereafter the said churra was wrapped in the cloth and sealed with the seal of BS and the sealed parcel was taken into possession vide seizure memo Ex.PW11/B. According to the witness, his statement was recorded and the case property was deposited in the malkhana. This witness has correctly identified the all accused in the court and has also identified the case property i.e. Churra as the same which was got recovered by accused Bablu which is Ex.P4.
In his cross examination, the witness PW11 Ct. Jaipal Singh has deposed that he does not know about the information of the accused persons however it was in the knowledge of the IO. He has deposed that the IO had made the DD entry in the police station regarding information about going outstation and at about 11 AM they left for Haridwar from the police station by a Tavera car but he is unable to tell the number of the said Tavera Car nor he is aware from where the said car was hired. According to the witness, they had reached at Haridwar at 6 PM and after reaching there, the IO made local inquiries and at 9 PM they reached at Gujrati Samaj Dharamshala and arrested the accused person at the gate of said Dharamshala. He has deposed that they did not inform the local SC No. 958/08, State Vs. Taufiq etc., FIR No. 656/07, PS Jahangirpuri Page 22 of 71 police about the said raid and states that they had firstly interrogated the accused persons one by one and then the IO had arrested them but they did not inform the local police about the arrest of accused persons. He has admitted that many people were present at the spot where the accused persons were arrested and states that the IO had requested some public persons to join the investigations but they refused, IO had not issued any notice to them who had refused to join. He is unable to tell whether the officials of management committee were also present or not inside the aforesaid Dharamshala. According to the witness it took around three hours for them to complete the proceedings and after 12:05 midnight they left for Delhi from there and reached at police station at about 8:30 AM. He is unable to tell whether any DD entry regarding arrival and arrest of the accused persons were made in the police station. He has stated that they reached the house of accused persons at about 11 AM and when they reached the home of the accused some public persons had gathered there and the IO made a request to them to join the investigations but none agreed but the IO did not give any notice to the persons who had refused to join the investigations. He deposed that the IO had not prepared any site plan regarding recovery of weapons in his presence. He has also deposed that after arresting the accused persons, the IO had informed the parents of the accused regarding their arrest from the police station itself. He has denied the SC No. 958/08, State Vs. Taufiq etc., FIR No. 656/07, PS Jahangirpuri Page 23 of 71 suggestion that all the accused persons were lifted from their respective houses and falsely implicated in the present case. He has also denied the suggestion that he has deposed falsely at the instance of IO being a police official.
PW12 HC Ramesh Kumar is also the member of the police party who has corroborated the testimony of PW8 HC Rajbir Singh and Ct. Jai Pal (PW11) having gone to Haridwar where the accused were apprehended and arrested in his presence. Apart from the above, he has proved having taken the exhibits i.e. seven sealed parcels to FSL Rohini on 29.11.2007 vide RC No. 282/21/07 and handed over the copy of Receipt to MHC (M) after getting the same deposited.
In his crossexamination the witness PW12 HC Ramesh Kumar is unable to tell about the information of the accused persons however it was in the knowledge of the IO. He deposed that the IO has made the DD entry in the police station for the information about the outstation and at about 11 AM they left for Haridwar from the police station and had gone to Haridwar by a Tavera car. Witness is unable to tell the number of the said Tavera Car and he does not know from where the said car was hired. They reached at Haridwar at 6 PM and after reaching there, the IO made local inquiry and at 9 PM they reached at Gujrati Samaj Dharamshala. They arrested the accused person at the gate of said Dharamshala but they did not SC No. 958/08, State Vs. Taufiq etc., FIR No. 656/07, PS Jahangirpuri Page 24 of 71 inform the local police about the said raid. He does not remember whether the IO SI Balbir Singh had arrested anyone or not and he cannot tell that who was arrested by HC Rajbir, Ct. Sudhir and Ct. Jaipal. He has further stated that firstly they had interrogated the accused persons one by one then IO had made the accused persons arrested. After arresting the accused persons they have not informed the local police about the arrest of accused persons. He has admitted that many peoples were present at the spot where the accused persons were arrested. IO had requested some public persons to join the investigations but they refused. IO had not issued any notice to them who had refused to join. He has stated that he cannot say whether there were officials of management committee were present or not inside the aforesaid Dharamshala. It took around three hours them for completing the proceedings. According to the witness, after 12:05 Midnight they left for Delhi from there and reached at police station at about 8:30 AM. He has stated that he cannot say whether any DD entry regarding arrival and arrest of the accused persons were made in the police station. They have reached at the house of accused persons at about 11 AM and at that time there were some public persons gathered there and IO made request to them to join the investigations but none agreed but IO did not give any notice to those persons who had refused to join the investigations. He deposed that the IO had not prepared any site plan regarding recovery of weapons SC No. 958/08, State Vs. Taufiq etc., FIR No. 656/07, PS Jahangirpuri Page 25 of 71 in his presence. He has further deposed that after arresting the accused persons, the IO informed the parents of the accused from the police station. He has denied the suggestion that he has not joined the investigations of this case and simply he was made the witness by the IO of the case. He has also denied the suggestion that all the accused persons were lifted from their respective houses and falsely implicated in the present case. He has denied the suggestion that he has deposed falsely at the instance of IO being a police official.
PW9 Retd. SI Vijay Singh during his examination in chief has deposed that on 04/05.07.2007 he was posted at police station Jahangir Puri and was working on emergency duty from 8.00PM to 8.00AM. On that day he received the information regarding quarrel, therefore he reached at I Block, 700 Wali Gali Jahangir Puri where he came to know that the injured has already been removed to Babu Jagjeevan Ram hospital. Thereafter, he went to Babu Jagjeevan Ram hospital where injured Yusuf and his father Aflatoon met him. He collected the MLC of Yusuf and Medical Examination Sheet of his father Aflatoon and recorded the statement of Aflatoon and on the basis of same he got the case registered vide FIR No. 430/2007 U/s 323/307/452/34 IPC and the further investigation was handed over to him. He deposed that in that case he arrested the accused Mohd. Sultan, Chand Babu, Rajender and Ravinder Pal @ Sonu. The copy of said FIR is Ex.PW9/A. His SC No. 958/08, State Vs. Taufiq etc., FIR No. 656/07, PS Jahangirpuri Page 26 of 71 statement was recorded by the IO. This witness has not been cross examined by the Ld. Defence Counsel and hence his entire testimony has gone unrebutted.
PW10 HC (Retd.) Permanand in his examination in chief has deposed that on 16.10.2007 he was posted at the police station Jahangir Puri. On that day IO received the information regarding the quarrel, therefore on the receipt of DD No. 38B they reached at CD Park, Jahangir Puri. According to him at about 910PM they received another call and thereafter he along with SI Sultan Singh reached at 500 Wali Gali Jahangir Puri where they came to know that the injured has already been removed to Babu Jagjeevan Ram hospital. They found the blood present there and at the same time Beat Constable Jai Pal came there who was left at the spot for guarding the spot and SI Sultan Singh sent him at Babu Jagjeevan Ram hospital where he recorded the statement of Dharmender and also collected his MLC. Smt. Tulsi Devi the mother of Dharmender also met them whose statement was also recorded. The witness has deposed that the IO prepared the rukka on the basis of statement of Tulsi Devi and handed over to him (this witness) and he got the FIR registered and came back to the spot with the copy of FIR and original rukka and handed over the same to the IO. The witness has further deposed that the IO lifted the blood stained earth and also earth without the stains, as sample and kept the same in a SC No. 958/08, State Vs. Taufiq etc., FIR No. 656/07, PS Jahangirpuri Page 27 of 71 plastic container and sealed the same with the seal of SS and marked the said parcels as S. No. 1 and 2 and taken into possession vide seizure memo Ex.PW10/A bearing his signatures at point A and the seal after used was handed over to him after which his statement was recorded by the IO.
During his cross examination by Ld. Defence Counsel, this witness has deposed that they reached at the spot of incident at about 9.20 PM. He further deposed that SI Sultan Singh was with him and Beat Constable Jaipal met them at there. They remained present at the spot for about 10 minutes. According to him, the statement of Tulsi Devi was recorded in his presence at Babu Jagjeevan Ram hospital at about 10.35 PM and thereafter he reached at the police station at 10.50PM. He has deposed that it took approximate one hour to got register the FIR. He further deposed that IO SI Sultan Singh completed the investigation at the spot on that day. He has denied the suggestion that all proceedings were conducted while sitting in the police station or that he has deposed falsely.
PW13 Retd. SI Sultan Singh during his examination in chief has deposed that on 16.10.2007 he was posted at PS Jahangir Puri as Sub Inspector. On that day on the receipt of DD No. 67/B regarding quarrel at 500 Wali Gali, Near Corner of the Park. He deposed that he along with HC Permanand reached there where Beat SC No. 958/08, State Vs. Taufiq etc., FIR No. 656/07, PS Jahangirpuri Page 28 of 71 Constable Jai Pal Singh met them. They found blood at the spot and came to know that injured had already been taken to Babu Jagjeevan Ram hospital. He left Ct. Jai Pal at the spot for guarding the spot. He along with HC Permanand went to the hospital where mother of Dharmender namely Smt. Tulsi Devi met him. The witness has deposed that the injured Dharmender was unfit for giving his statement. He has further deposed that he has recorded the statement of Smt. Tulsi Devi which is Ex.PW7/A which bears her signature at point A attested by him and bears his signature at point B. He thereafter prepared rukka on the statement of Smt. Tulsi Devi vide Ex.PW13/A bearing his signature at point A and send the rukka to the Police Station through HC Parmanand for getting the case registered from the hospital. The witness has deposed that doctor Neeraj, SR Surgery BJRM hospital handed over one parcel duly sealed with the seal of MS BJRM hospital containing shirt of injured Dharmender. He took the same into possession vide seizure memo Ex.PW7/B bearing his signature at point B and thereafter he along with complainant Smt. Tulsi Devi reached at the spot. The witness has further deposed that the beat constable Jai Pal Singh was already present at the spot and met them when they reached there from the hospital. He sent Ct. Jaipal to bring the photographer and he himself prepared the site plan vide Ex.PW13/B bearing his signature at point A at the instance of complainant Smt. Tulsi Devi and she was SC No. 958/08, State Vs. Taufiq etc., FIR No. 656/07, PS Jahangirpuri Page 29 of 71 relieved from the spot as she was in hurry as her son was having grave injuries and he was referred to some other hospital. The witness has deposed that Ct. Jaipal brought the photographer Sunil and the photographer took five photographs at the scene of crime and same are Ex.PW14/A1 to Ex.PW14/A5. The witness has further deposed that HC Parmanand had brought the copy of FIR which is Ex.PW5/A and original rukka and handed over the same to him. He took the blood stained floor and kept the same in small plastic jar and also broke the floor having no blood and kept the same in another small plastic jar and sealed both the jars with the seal of SS and gave both the jars with serial No. 1 and 2 and took the same into possession vide seizure memo Ex.PW10/A bearing his signature at point B. Thereafter, he recorded the statement of HC Parmanand and Ct. Jai Pal who also came to the spot U/S 161 Cr. P.C. He deposited the aforesaid jars in the malkhana of Police Station Jahangirpuri. According to the witness, he went to the spot on 17.10.2007 and made inquiries and also tried to trace the eye witnesses but none met him. Thereafter he went to the house of complainant Tulsi Devi and recorded her supplementary statement U/S 161 Cr. P.C. The witness has deposed that on 20.10.2007, he went to Safdarjung hospital and after taking permission from the doctor concerned he met the injured Dharmender who was fit for giving his statement, therefore he recorded his statement U/S 161 Cr. PC and again recorded SC No. 958/08, State Vs. Taufiq etc., FIR No. 656/07, PS Jahangirpuri Page 30 of 71 supplementary statement of Smt. Tulsi Devi in the hospital. Thereafter, he fell ill and therefore the further investigations of this case was handed over to SI Balbir Singh. The witness has further deposed that on 15.11.2007, the investigations of this case was again handed over to him. He has deposed that on 27.11.2007, the injured Dharmender was taken to BJRM hospital and his blood sample was got taken and the doctor concerned handed over the blood sample of injured Dharmender along with sample seal duly sealed with the seal of MS BJRM hospital which he seized vide memo Ex.PW13/C bearing his signature at point A. The witness has deposed that on 29.11.2007 he send the exhibits and the parcel containing blood stained clothes of injured Dharmender to FSL, Rohini through Ct. Ramesh vide RC No. 282/21. On 18.2.2008, he also obtained the opinion of nature of injuries on the MLC Ex.PW2/A which was grievous and recorded the statement of SI Vijay Singh U/S 161 Cr.PC. Thereafter, he prepared charge sheet after necessary investigations and further stated that it was the incident of dated 16.10.2007. He has stated that he received the information at about 9:00 PM and at that time he was at CD Park, Jahangirpuri. According to him, it was after completing the first call of CD park regarding quarrel that he went to attend the present call. He has deposed that he completed the proceedings regarding the first call at about 9:15 PM and has further stated that CD Park is at a distance of SC No. 958/08, State Vs. Taufiq etc., FIR No. 656/07, PS Jahangirpuri Page 31 of 71 about half a Km from the place of occurrence in the present case and that it took him about 1015 minutes to reach the spot but he had not met any eye witness at the spot. He states that he stayed at the spot for about 1015 minutes and it was only after giving instructions to the beat constable whom he left at the spot that he went to the hospital. The witness has deposed that BJRM hospital is about 1:00 Km. from the spot of occurrence and he reached there by 9:45 PM. He has further deposed that he had recorded the statement of only Smt. Tulsi Devi though other persons were also present in the hospital since they were not eye witnesses to the incident. He has stated that he stayed at BJRM hospital till about 11 PM and sent the rukka from the hospital at about 10:40 PM. The witness has deposed that HC Parmanand returned to the spot after getting the FIR registered at about 11:45 PM. According to the witness the name of the photographer who was called to the spot was Sunil and he was a resident of the neighbouring village Ramgarh who reached the spot again at about 11:15 PM, whereas HC Parmanand reached later. The witness has deposed that he made inquiries from the public persons present at the spot and also from the neighbours but none of them came forward as eye witnesses nor gave any details of the quarrel. He has stated that he stayed at the spot for about 22 ½ hours. He has also deposed that Smt. Tulsi Devi was never called to the police station and has voluntarily added that her first statement was taken at SC No. 958/08, State Vs. Taufiq etc., FIR No. 656/07, PS Jahangirpuri Page 32 of 71 BJRM Hospital and her supplementary statements were taken at Safdarjung hospital and at her house. According to the witness, when he recorded the statement of Tulsi Devi at her house, only her family members were present. He has denied the suggestion that entire documentation was done by him while sitting in the police station and he never went to the spot or to the residence of Tulsi Devi.
PW15 HC Dalbir Singh in his examination in chief has deposed that on 16.10.2007 he was posted at police staiton Jahangirpuri as MHC(M). On that day SI Sultan Singh had deposited one plastic bottle containing blood stained earth and another plastic bottle containing earth without stained duly sealed with the seal of SS. He took the same vide entry No. 3568 of register No. 19. On the same day, the IO also deposited one sealed parcel containing blood stained shirt of injured Dharmender duly sealed with the seal of hospital. He received the same vide same entry of register No. 19. On 29.11.2007 he send the exhibits to FSL, Rohini through Ct. Ramesh Kumar vide RC No. 282/21. According to the witness, on 08.04.2008, the result of FSL was got deposited by Ct. Anil Kumar and the then MHC(M) received the same. He has deposed that on 24.10.2007, SI Balbir Singh had deposited three sealed parcel containing knife like object each parcel duly sealed with the seal of BS and another unsealed parcel containing one danda and he SC No. 958/08, State Vs. Taufiq etc., FIR No. 656/07, PS Jahangirpuri Page 33 of 71 received the same vide entry No. 3584 of register No. 19. Thereafter, on 27.11.2007 SI Sultan had deposited blood sample belonging to Dharmender duly sealed with the seal of hospital and sample seal which he received the same vide entry No. 3630 of register No. 19. He has further deposed that the photocopies of the aforesaid entries are Ex.PW15/A running into four pages; the copy of RC NO. 282/21 is Ex.PW15/B. (Originals register and RC seen and returned).
During his cross examination, this witness has admitted that on 08.04.2008 he was not working as MHC (M) at aforesaid police station and it was HC Jitender Kumar, working as MHC (M) on that day. He deposed that the FSL result was received by HC Jitender. He has denied the suggestion that he did not make the aforesaid entires or that the aforesaid entries were manipulated later only to connect the accused persons in this case.
PW16 SI Balbir Singh in his examination in chief has deposed that on 23.10.2007 he was posted at police station Jahangir Puri and on that day further investigations of this case was handed over to him. He formed a raiding party comprising HC Rajbir, Ct. Jai Pal, Ct. Sudhir and Ct. Ramesh as they received an information that the accused were hiding in the area of Haridwar. He conveyed this information to his senior officers and after obtaining permission from the senior officers they all alongwith the secret informer went to Haridwar in a private Tavera cara and left Delhi at 11.00 AM and SC No. 958/08, State Vs. Taufiq etc., FIR No. 656/07, PS Jahangirpuri Page 34 of 71 reached Haridwar at about 6.00 PM. According to the witness, they tried to trace the accused persons at their own level and the secret informer had also tried to ascertain their whereabouts and the secret informer informed him at about 9.00 PM that the accused persons namely Taufiq, Yusuf, Bablu and Ashish Goyal @ Ashu were staying at Gujrati Dharamshala, Shiv Murti Road, Haridwar and were about to leave. Thereafter, they reached there and started waiting outside the said Dharamshala and also requested 67 public persons to join the raiding party but none agreed and left the spot without disclosing their names and addresses. The witness has deposed that after some time, four persons came out of Dharamshala and started waiting for their conveyance on which the secret informer identified them as the same persons involved in this case. The witness has deposed that the three police official in their raiding party were also Beat Officer's of the area and the accused persons were known to the those beat officers also and the beat officers also identified them and thereafter they were apprehended and on interrogation, their names were known as Taufiq, Yusuf, Bablu and Ashish Goyal @ Ashu. According to the witness, after being satisfied, they were arrested in this case by him vide memos Ex.PW8/A to Ex.PW8/D bearing his signature at point B and were personally searched vide memos Ex.PW8/E to Ex.PW8/H bearing his signatures at point B and were thoroughly interrogated and whatever they stated was recorded SC No. 958/08, State Vs. Taufiq etc., FIR No. 656/07, PS Jahangirpuri Page 35 of 71 separately in their disclosure statements vide Ex.PW8/I to Ex.PW8/L bearing his signatures at point B. The witness PW16 has further deposed that on intervening night of 23/24.10.2007 they left for Delhi and came back to Delhi at about 8.00AM on 24.10.2007 and the accused were produced before the SHO who also interrogated them. The witness has further deposed that the accused persons took the raiding party first at the house of accused Yusuf i.e. at H. No. I803, Jahangir Puri and pointed out at varandah on the first floor where a cooler was found lying and the accused persons disclosed that they have kept the Chhura like object in the said cooler. The witness has deposed that the accused persons took out three Chhura like knives and one danda from the said cooler. He prepared sketches of all three Chhuras vide Ex.PW11/A, Ex.PW8/M bearing his signatures at point B and Ex.PW16/A bearing his signatures at point A. He converted the aforesaid Chhuras into three separate pulandas with the help of white cloth and sealed the same with the seal of BS and took the aforesaid three parcels vide seizure memos Ex.PW8/N, Ex.PW11/B bearing his signatures at point B and Ex.PW16/B bearing his signatures at point A and wrapped a chit of white cloth around the danda and sealed the same with the seal of BS and the particulars of the case were also mentioned on the said parcels and chit on danda and the said danda was also taken into possession vide seizure memo SC No. 958/08, State Vs. Taufiq etc., FIR No. 656/07, PS Jahangirpuri Page 36 of 71 Ex.PW16/C bearing his signatures at point A. The witness has deposed that the aforesaid case property was deposited in the Malkhana of Police Station Jahangir Puri and thereafter he recorded the statement of witnesses and the accused persons were sent to lock up and were produced before the concerned court on the same day. The witness has also deposed that the further investigation of this case was transferred to some other investigating officer and he handed over the case file to MHC (R). This witness has correctly identified all accused persons present in the court. He has also identified the case property i.e. Chhura as got recovered by accused Bablu which is Ex.P4 and is having certain stains at point marked B+ (mark given by the FSL). He has also identified the knife like chhura as got recovered by accused Yusuf which is Ex.P3 and is having certain stains at point marked B+ (mark given by the FSL). Witness has also identified the chhura as got recovered by accused Taufiq which is Ex.P5. He has also identified the danda which is the handle of "Phavra/Bitta" having the chit of white cloth stitched around it as the same as got recovered by accused Ashish @ Ashu which is Ex.P6.
During his cross examination this witness has deposed that the secret information received by him was conveyed to other members of the raiding party also. He has deposed that the secret informer had given the information that the accused persons were SC No. 958/08, State Vs. Taufiq etc., FIR No. 656/07, PS Jahangirpuri Page 37 of 71 available at Haridwar. He has further deposed that they left for Haridwar after making DD entry regarding departure for out station which was recorded by him. According to him they had gone to Haridwar by a private Tavera Car but he is unable to tell the number of the said car and he does not remember from where they hired the car nor does he remember the name of the travel agency from where the Tavera car was got procured and states that he himself had asked the person at travel agency. He has voluntarily added that he remember only the name of driver as Rakesh and states that he had called the Tavera car on phone. He deposed that he does not remember the number of mobile phone and also does not remember whether the phone number was of the driver Rakesh or of the travel agency. He is unable to tell whether the said car was belonging to Rakesh or some other else. He has stated that they left Delhi at about 11.00 AM for Haridwar but has no idea about the distance of Haridwar from Jahangir Puri, Delhi. He has deposed that initially they had not informed the area police station at Haridwar but after apprehending the accused persons they had gone to Police Post of the area of Shiv Murti Chowk, Gujrati Dharamshala. He has denied the suggestion that they had not gone to the police post of the area at Haridwar and therefore he does not remember the name of police post. He states that he had gone inside the Dharamshala and checked the record of the stay of the accused persons but no record was found SC No. 958/08, State Vs. Taufiq etc., FIR No. 656/07, PS Jahangirpuri Page 38 of 71 available to show that the accused were staying at the said Dharamshala. He has denied the suggestion that they did not check any record at the said Dharamshala therefore no record was found available. He has also denied the suggestion that the accused persons were not staying at Gujrati Dharamshala therefore no record was found available. According to him he did not ask or made enquiry from the official available at Gujrati Dharamshala. He has stated that he cannot give the name of that official met at the reception of Gujrati Dharamshala and states that he with the help Ct. Ramesh had apprehended the accused Taufiq and other accused were apprehended by the other members of the raiding party. He has deposed that the writing work was done while sitting on stools outside the Dharamshala and it took about 2 - 2 ½ hours in completing the writing work. He has also deposed that they left for Delhi at about 12.00 midnight and reached Delhi at about 8.00 AM and made DD entry regarding their arrival at Delhi. He deposed that the accused persons were kept in the police station where the then SHO also interrogated them and thereafter the accused persons led the police party to the house of accused Yusuf. He has deposed that he had not prepared any site plan at the house of accused Yusuf. He has also admitted that the public persons had collected at the house of accused Yusuf. According to the witness, he requested them to be a witness at the time of recovery but none agreed and left the spot without SC No. 958/08, State Vs. Taufiq etc., FIR No. 656/07, PS Jahangirpuri Page 39 of 71 disclosing their names and addresses. According to the witness, he had not given any legal notice to them for not assisting the police official. He has denied the suggestion that the accused persons had not taken them to the house of accused Yusuf. He has further denied the suggestion that whatever case property he has identified as being recovered from the house of Yusuf, has been planted upon the accused. He has further denied the suggestion that accused have been falsely implicated in this case. According to him, the identity of accused were not disputed at the time of their apprehension since accused Yusuf and Taufiq were known Bad Characters of the area. STATEMENT OF ACCUSED &DEFENCE EVIDENCE:
After completing the prosecution evidence, statement of accused were recorded under Section 313 Code of Criminal Procedure in which all the incriminating evidence / material was put to them which they have denied. However, none of the accused has examined any witness in defence.
The accused Taufiq and Yusuf are real brothers. They have stated that they are innocent and have been falsely implicated. According to them Chand and Sultan are closely related to them and there is a long standing dispute between them. They have further stated that Dharmender is the friend of Chand and Sultan and therefore he has falsely implicated them in this case. According to SC No. 958/08, State Vs. Taufiq etc., FIR No. 656/07, PS Jahangirpuri Page 40 of 71 them, they have now compromised all their disputed with the complainant and now they are living peacefully.
The accused Bablu has stated that he was lifted by police from the house of his Fufa at Haridwar and falsely implicated. According to him he is innocent and has been implicated only because he is the friend of Taufiq and Yusuf. He has stated that now he has settled the dispute with the complainant and are residing peacefully.
The accused Jugal Kishore has stated that he is innocent and has nothing to do with the alleged incident and has been falsely implicated by the complainant. According to him, the coaccused Taufiq and Yusuf were having a dispute with Chand and Sultan who are the friend of Dharmender and just because he is the friend of Taufiq and Yusuf, he has been falsely implicated by the complainant and her son Dharmender. He has stated that now he has settled the dispute with the complainant and are residing peacefully.
The accused Ashish Goyal @ Ashu Baniya has stated that he is innocent and has been falsely implicated by the police after lifting him from the house. According to him previously he was residing at Jahangirpuri and therefore he knew Dharmender, Taufiq and Yusuf. He has further sated that he is a baniya by caste and has therefore been implicated only to extort money. He has further stated that he has settled all his disputed with the complainant. SC No. 958/08, State Vs. Taufiq etc., FIR No. 656/07, PS Jahangirpuri Page 41 of 71 FINDINGS:
I have heard the arguments advanced before me by the Ld. Addl. PP for the State and the Ld. Defence Counsel appearing on behalf of the accused. I have also considered the testimonies of the various witnesses examined by the prosecution and have gone through the record of the case. My findings are as under: Identity of the accused:
In so far as the identity of all the accused is concerned, the same stand established. It is evident from the testimony of the victim Dharmender (PW1) and his mother Tusli Devi (PW7) that all the accused are the residents of the same area and were known to the victims and their family prior to the incident and there was a on going rivalry between the two. The accused have been duly identified by both injured Dharmender (PW1) and the eye witness / complainant Tusli Devi (PW7). In view of this, I hold that the identity of all the accused Taufiq, Yusuf, Bablu, Jugal Kishore and Ashish Goyal @ Ashu Baniya, stand established beyond reasonable doubt.
Allegations against the accused:
The case of the prosecution is that on the date of incident i.e. 16.10.2007 while PW1 Dharmender was going on his bike bearing No. DL 85 AC 6910 along with his mother PW7 Tusli Devi SC No. 958/08, State Vs. Taufiq etc., FIR No. 656/07, PS Jahangirpuri Page 42 of 71 and at around 8/8:15 PM when he reached IBlock at the corner of the park, 500 wali gali, Jahangir Puri, the accused Taufiq and Yusuf stopped Dharmender and assaulted him while the coaccused Bablu, Jugal Kishore and Ashish Goyal joined them on account of which Dharmender received injuries all over his body and he became unconscious and had to be taken to the hospital. The injured Dharmender has been examined as PW1 and in his examinationin chief he does not support the case of the prosecution but on questioning by the Addl. PP for the State, he admitted the contents of his application / complaint Ex.PW1/A to be correct. He has further admitted that since he has compromised the dispute with the accused therefore he had initially made an incorrect statement before the court.
However, Smt. Tulsi Devi (PW7), the complainant / mother of injured Dharmender is also the eye witness to the incident. Her testimony is very specific and she has attributed specific roles to all the accused. According to her, on the date of the incident her son Dharmender was taking her to the doctor on his motorcycle and when she and her son Dharmender reached at Iblock at the corner of Park, 500 wali gali, Jahangir Puri, the accused Yusuf and Taufiq came before their motor cycle and got the same stopped. She has further deposed that Yusuf and Taufiq were having a Chappar like objects and they both attacked her son Dharmender with the said SC No. 958/08, State Vs. Taufiq etc., FIR No. 656/07, PS Jahangirpuri Page 43 of 71 objects as a result of which her son sustained injuries on whole body and at the same time the accused Jugal, Bablu and Ashu also came there whom she knew being residents of the same locality and they were having dandas, hockey and started beating her son Dharmender and when she tried to save her son, the accused Taufiq started swaying the Chappar like object in the air and threatened her that if she come forward in order to save her son, they will kill her. According to her, she thereafter raised an alarm on which all the accused ran away from the spot and thereafter her other sons Ravi and Jitender also came there and she took her son to the BJRM hospital where her statement was recorded. The relevant extract of her testimony is as under :
" ...... It was 16th day before Deepawali and after Eid Festival about 23 years back but I do not remember the exact month and year due to old age, my son Dharmender took me to doctor on his motor cycle at about 8.30 PM when we reached I block at the corner of Park, 500 wali gali, Jahangir Puri, Yusuf and Taufiq came before our motor cycle and got the same stopped.
Yusuf and Taufiq were having a Chapar SC No. 958/08, State Vs. Taufiq etc., FIR No. 656/07, PS Jahangirpuri Page 44 of 71 like object. Both attacked my son Dharmender with the said object as a result of which my son sustained injuries on whole body. At the same time Jugal, Bablu and Ashu had also come there. I know them also being resident of the same locality. They were also having dandas, hockey and also started beating my son. I tried to save my son. The accused Taufiq started swaying the chapar like object in the air and threatened me that if I come forward in order to save my son, they will kill me. I raised alarm. All the accused persons ran away from the spot.
Thereafter my other sons Ravi and Jitender also came there. I took my son Dharmender to BJRM Hospital. ....."
I may observe that PW7 Tulsi Devi has been extensively cross examined by the Ld. defence counsel wherein she has stated that she was receiving treatment from one Dr. SC No. 958/08, State Vs. Taufiq etc., FIR No. 656/07, PS Jahangirpuri Page 45 of 71 Meenakhi and on the date of incident her son Dharmender was taking her to the clinic of Dr. Meenakshi for treatment. She has admitted that Dharmender is facing trial in a criminal case bearing FIR No. 26/09, Police Station Jahangirpuri, but according to her it is a false case foisted against her son where one of the accused namely Taufiq is the complainant. She has denied the suggestion that the presence incident has been created at the instance of Dharmender only as a counter blast. She has specifically denied the suggestion that she was not present at the spot of the incident. It is evident from the aforesaid that the role attributed to all the accused namely Taufiq, Yusuf, Bablu, Jugal Kishore and Ashish Goyal @ Ashu Baniya has been specified by the eye witness Tusli Devi (PW7) not only before the court but also in her initial statement to the investigating officer and there is no material contradiction in her testimony. In this background, I hold that the accused Taufiq, Yusuf, Bablu, Jugal Kishore and Ashish Goyal @ Ashu Baniya have wrongly fully restrained the injured Dharmender and complainant Tusli Devi and voluntarily caused injuries on the right hand and left knee of the Dharmender by using word, Chappar and hockey stick stands established.
SC No. 958/08, State Vs. Taufiq etc., FIR No. 656/07, PS Jahangirpuri Page 46 of 71 Medical Evidence:
The MLC Ex.PW2/A of the victim have been duly proved by the PW2 Dr. Neeraj Chaudhary. He has proved that injured Dharmender was brought to the BJRM hospital with the history of assault with sharp object on 16.10.2007 and as per examination conducted by Dr. Parveen there was CLW of size 2 X 1 cm over the left eye brow, CLW over the back of left forehead of size 7 X 3 cm, 5 X 2 cm and 2 X 1 cm and CLW on left knee of size 5 X 2 cm, 2 X 1 cm, CLW on left leg size 2 X 1 cm and 1 X 1 cm, on account of the patient was referred to Surgery and Orhto. Department. Thereafter, Dr. Rajesh had opined the nature of injury as grievous on 18.2.2008 as per the Xray done by Dr. Sanjay, unit of Dr. GH Vyas and Xray shows fracture of left sheft of ulna and fracture of greater trocltera. The entire testimony of Dr. Neeraj Chaudhary has gone unrebutted and uncorroborated and I hold that the injury inflicted on the vital organ of the injured Dharmender have been duly proved in accordance with law.
Recovery of weapons of offence:
The case of the prosecution is that after the arrest of the accused, three Churras and one danda were got recovered by them from the house of accused Yusuf and Taufiq (both real brothers) i.e. House No. I803, Jahangirpuri, Delhi, from inside the cooler in the SC No. 958/08, State Vs. Taufiq etc., FIR No. 656/07, PS Jahangirpuri Page 47 of 71 slab in the Baranda of first floor, which they identified as the same weapons with which they had inflicted injuries upon Dharmender. PW8 HC Rajbir Singh has proved the measurement of the Churras stating that the length of the Churra was 38.2 inches, handle was 13.2 inches; blade was 25 cms. and the width of blade was 5.6 cms., and the said Churra was wrapped in the cloth and sealed with the seal of BS and was taken into possession by the IO vide memo Ex.PW8/N after preparing the sketch of the same vide memo Ex.PW8/M. I may observe that PW11 Ct. Jai Pal has also similarly deposed that the accused have got recovered the Churra from the house of Yusuf and Taufiq. Further, the investigations officer PW16 SI Balbir Singh has proved the recovery of three Churras and one danda from the house of Taufiq i.e House No. I803, Jahangirpuri, from inside the cooler in the slab in the Varandah of first floor, which were got recovered by the accused Yusuf, Taufiq and Bablu. It has been proved that the knife Ex.P4 was got recovered by accused Bablu; knife Ex.P3 was recovered by accused Yusuf; the knife Ex.P5 was got recovered by accused Taufiq and the danda which is the handle of phavra / bitta having the chit of white cloth stitched around it was got recovered by the accused Ashish @ Ashu. In this background, I hold that the recovery of aforesaid weapons was pursuant to the disclosure of the accused persons and in this regard the law is very clear. SC No. 958/08, State Vs. Taufiq etc., FIR No. 656/07, PS Jahangirpuri Page 48 of 71
Section 27 of Evidence Act, which is in the nature of a proviso to Section 26 of the Act, to the extent it is relevant provides that when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved. Thus the requirement of law is that before the fact discovered in consequence of an information received from an accused is allowed to be proved, he (accused) needs to be in the custody of a police officer.
Recently, in the case of Bachchi Singh & Anrs. Vs. The State (NCT of Delhi) bearing Criminal Appeal No. 261/1997 decided on 30.7.2010 Hon'ble Mr. Justice V.K. Jain of Delhi High Court while making reference to the earlier decisions and various judicial pronouncements summarized the law as under:
In State of U.P. Vs. Deoman Upadhyaya in 1960 Cri.L.J. 1504, Supreme Court inter alia, observed as under: "When a person not in custody approaches a police officer investigating an offence and offers to give information leading to the discovery of a fact, having a bearing on the charge which may be made against him he may appropriately be deemed to have surrendered himself to the police. SC No. 958/08, State Vs. Taufiq etc., FIR No. 656/07, PS Jahangirpuri Page 49 of 71 Section 46 of the Code of Criminal Procedure does not contemplate any formality before a person can be said to be taken in custody: submission to the custody by word or action by a person is sufficient. A person directly giving to a police officer by word of mouth information which may be used as evidence against him, may be deemed to have submitted himself to the "custody" of the police officer within the meaning of S.27 of the Indian Evidence Act."
In the context of Section 439 of the Code of Criminal Procedure, Supreme Court, in Niranjan Singh Vs. Prabhakar Rajaram Kharote 1980 Cri.L.J. 426 inter alia observed as under: "When is a person in custody, within the meaning of Section 439, Cr.P.C.? When he is in duress either because he is held by the Investigating Officer or other police or allied authority or is under the control of the Court having been remanded by Judicial order, or having offered himself to the Court s jurisdiction and submitted to its orders by physical presence. No lexical dexterity nor SC No. 958/08, State Vs. Taufiq etc., FIR No. 656/07, PS Jahangirpuri Page 50 of 71 precedential profusion is needed to come to the realistic conclusion that he who is under the control of the Court or is in the physical hold of an officer with coercive power is in custody for the purpose of Section 439. This word is of elastic semantics but its core meaning is that the law has taken control of the person. The equivocatory quibbling and hideandseek niceties sometimes heard in Court that the police have taken a man into formal custody but not arrested him, have detained him for interrogation but not taken him into formal custody and other like terminological dubiotics are unfair evasions of the straightforwardness of the law....
Applying the settled principles of law to the facts of the present case, it is evident that it was pursuant to their disclosure statements that the Churras (knives) were recovered at the instance of the accused Yusuf, Taufiq and Bablu and the danda was recovered at the instance of accused Ashsish @ Ashu. These accused were all in police custody at the time their disclosure statements were recorded and therefore their disclosure statements are relevant only to the extent of the recovery of these weapons at the instance of Yusuf, Taufiq, Bablu and Ashish.
SC No. 958/08, State Vs. Taufiq etc., FIR No. 656/07, PS Jahangirpuri Page 51 of 71 Defence of the accused:
The Ld. defence counsel has vehemently argued that the entire recovery of the weapons of offence has been planted upon the accused and the testimony of various witnesses suffer from many discrepancies which are material. He has submitted that at no point of time the investigating officer has joined any public witnesses and the investigations carried out are tainted and liable to be rejected in this regard. He has further submitted in his written memorandum of arguments filed in the court that there are material discrepancies in the testimonies of the various police officials, but he has failed to highlight the said discrepancies.
I have considered the submissions made before me and I may observe that in so far as the non joining of the public witnesses is concerned, it is evident from the testimony of the members of the police party that the investigating officer has asked about 67 public persons to join the raiding party but none agreed and left the spot without disclosing their identity. Merely because the police party has failed to disclose the name of travel agency or the number of the vehicle by which they travelled to Haridwar, would not be a reason to discard their version. It is often noticed that there being shortage of government vehicles, private vehicles are hired and it is not necessary that each and every member of the police party should be aware of the number of the vehicle or even the agency from where it SC No. 958/08, State Vs. Taufiq etc., FIR No. 656/07, PS Jahangirpuri Page 52 of 71 was hired. Also, giving no information to the local police at Haridwar at the time of arrest of the accused is also an irregularity in the procedure and not illegality perse. What is more important is firstly the aspect of the visit and secondly whether the police party had actually gone to Haridwar to arrest the accused. These aspects have been duly proved by the members of the police party who have corroborated each other on material particular and therefore there is no reason to doubt the version of the police officials. In this background, I hold that the arguments raised by Ld. defence counsel is devoid of merits.
Common Intention:
Case of the prosecution is that the accused in furtherance of their common intention had threatened the complainant to kill her and her son and pursuant to the execution of the said threats, they have committed this offence.
In this regard, I may observe that Section 34 of Indian Penal Code has been enacted on the principle of joint liability in the doing of a criminal act. The section is only a rule of evidence and does not create a substantive offence. The distinctive feature of the section is the element of participation in action. The liability of one person for an offence committed by another in the course of criminal act perpetrated by several persons arises under Section 34 if such SC No. 958/08, State Vs. Taufiq etc., FIR No. 656/07, PS Jahangirpuri Page 53 of 71 criminal act is done in furtherance of common intention of the persons who join in committing the crime. Direct proof of common intention is seldom available and, therefore, such intention can only be inferred from the circumstances appearing from the proved facts of the case and the proved circumstances. In order to bring home the charge of common intention, the prosecution has to establish by evidence, whether direct or circumstantial, that there was plan or meeting of minds of all the accused persons to commit the offence for which they are charged with the aid of Section 34, be if pre arranged or on the spur of the moment, but it must necessarily be before the commission of the crime. The true concept of the Section is that if two or more persons intentionally do an act jointly, the position in law is just the same as if each of them has done it individually by himself.
As observed in Ashok Kumar Vs. State of Punjab reported in AIR 1997 (1) SCC 746 the existence of a common intention amongst the participants in a crime is the essential elements for application of this section. It is not necessary that the acts of the several persons charged with commission of an offence jointly must be the same or identically similar. The acts may be different in character, but must have been actuated by one and the same common intention in order to attract the provision. The Section does not say "the common intentions of all" nor does it say "an intention common SC No. 958/08, State Vs. Taufiq etc., FIR No. 656/07, PS Jahangirpuri Page 54 of 71 to all". Under the provisions of Section 34 the essence of the liability is to be found in the existence of a common intention animating the accused leading to the doing of a criminal act in furtherance of such intention. The provision is intended to meet a case in which it may be difficult to distinguish between acts of individual members of a party who act in furtherance of the common intention of all or to prove exactly what part was taken by each of them.
As was observed in Chinta Pulla Reddy Vs. State of A.P. reported in 1993 Supp (3) SCC 134. Section 34 is applicable even if no injury has been caused by the particular accused himself. For applying section 34, it is not necessary to show some over act on the part of the accused. The above position was highlighted in Girija Shankar Vs. State of U.P., reported in 2004(3) SCC 793.
Applying the settled principles of law to the facts of present case it is evident that the accused Taufiq and Yusuf had collectively obstructed and restrained the complainant Tusli Devi and her son Dharmender by stopping their motorcycle who were immediately joined by Bablu, Jugal Kishore and Ashish Goyal @ Baniya and thereafter they all collectively assaulted Dharmender and inflicted injuries upon him, which act reflects and confirms the common intention of the accused persons.
SC No. 958/08, State Vs. Taufiq etc., FIR No. 656/07, PS Jahangirpuri Page 55 of 71 Whether any threats executed to the injured:
In so far as the aspect of executing threats to the injured Dharmender is concerned, except for the oral testimony of PW7 Tusli Devi, the mother of the victim, there is no other material. At no point of time any complaint was made to the police prior to the incident and it is for the first time when the assault has taken place, the aspect of the accused having previously threatened the injured was highlighted. I may observe that the victim Dharmender has turned hostile on the above aspect stating that he has already compromised the disputes with the accused who are residing int he same area. The testimony of Tulsi Devi does not find any corroboration from independent source in this regard. This being the background, no doubt the aspect of common intention stands established, but the prosecution has not been able to prove the aspect of threats as alleged beyond reasonable doubt and therefore benefit of doubt is liable to be given to the accused persons in respect of the said charge.
FINAL CONCLUSION:
In the case of Sharad Birdhichand Sarda Vs. State of Maharastra, AIR 1984 SC 1622, the Apex Court has laid down the tests which are prerequisites before conviction should be recorded, which are as under:
SC No. 958/08, State Vs. Taufiq etc., FIR No. 656/07, PS Jahangirpuri Page 56 of 71
1. The circumstances from which the conclusion of guilt is to be drawn should be fully established.
The circumstances concerned 'must or should' and not 'may be' established;
2. The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;
3. The circumstances should be of conclusive nature and tendency;
4. They should exclude every possible hypothesis except the one to be proved; and
5. There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
Applying the above principles of law to the facts of present case, it is evident that the investigation conducted including the documents prepared in the present case have been substantially proved by the police witnesses including the investigating officer. SC No. 958/08, State Vs. Taufiq etc., FIR No. 656/07, PS Jahangirpuri Page 57 of 71
The identity of all the accused namely Taufiq, Yusuf, Bablu, Jugal Kishore and Ashish Goyal @ Ashu Baniya stand established being previously known to the victims. The fact that on 16.10.2007 at about 8/8:15 PM the injured Dharmender (PW1) was taking his mother / complainant Smt. Tulsi Devi (PW7) to the clinic of Dr. Meenakshi for her medical ehck up, stands proved and established. It has been further proved that at about 8:30 PM when the injured Dharmender and his mother Tulsi Devi reached at I Block, corner of Park, 500 wali gali, Jahangirpuri, they were wrongfully restrained by the accused Yusuf and Taufiq who were armed with Churra / Chappar like objects. It is further proved that the injured Dharmender and his mother / complainant Tusli Devi were stopped by Yusuf and Taufiq and they assaulted Dharmender with Churra / Chappar like objects and in the meanwhile the co accused Bablu, Jugal Kishore and Ashish @ Ashu also came there duly armed with sword and danda / hockey and joined Yusuf and Taufiq and inflicted injuries upon Dharmender. It has been further proved and established that the injured Dharmender suffered multiple injuries all over his body and also grievous injury on his head i.e. vital organ. It is further established that the accused Taufiq, Yusuf, Bablu and Ashish @ Ashu have got recovered the weapons of offence i.e. three churras and one danda, respectively. There is nothing which could shatter the veracity of the prosecution witnesses SC No. 958/08, State Vs. Taufiq etc., FIR No. 656/07, PS Jahangirpuri Page 58 of 71 or falsify the claim of the prosecution. All the prosecution witnesses have materially supported the prosecution case and the testimonies of the prosecution witnesses do not suffer from any infirmity, inconsistency or contradiction and are consistent and corroborative. The evidence of the prosecution witnesses is natural and trustworthy and corroborated by by each other and the witness of the prosecution have been able to built up a continuous link.
In view of the aforesaid detailed discussions, I hereby hold that the prosecution has been able to prove and substantiate the allegations under Section 341/307/34 Indian Penal Code against the accused Taufiq, Yusuf, Bablu, Jugal Kishore and Ashish Goyal @ Ashu Baniya, who are hereby held guilty for the same and accordingly convicted. Further, in so far as the allegations under Section 506 Indian Penal Code are concerned, I hold that the prosecution has not been able to prove and substantiate the same beyond reasonable doubt due to which reason benefit of doubt is being given to the accused and therefore the accused Taufiq, Yusuf, Bablu, Jugal Kishore and Ashish Goyal @ Ashu Baniya are hereby acquitted of the same.
Case be listed for arguments on sentence on 11.8.2011.
Announced in the open court (Dr. KAMINI LAU) Dated: 5.8.2011 ASJ (NW)II: ROHINI SC No. 958/08, State Vs. Taufiq etc., FIR No. 656/07, PS Jahangirpuri Page 59 of 71 IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS JUDGEII (NORTHWEST): ROHINI COURTS: DELHI Sessions Case No. 958/2008 Unique Case Identification No. : 02404R0359002008 State Vs. 1. Taufiq S/o Aflatoon R/o I803, Jahangirpuri, Delhi.
(Convicted)
2. Yusuf S/o Aflatoon R/o I803, Jahangirpuri, Delhi.
(Convicted)
3. Bablu S/o Mahesh Kumar R/o J816, Jahangirpuri, Delhi.
(Convicted)
4. Jugal Kishore S/o Balkishan R/o I614, Jahangirpuri, Delhi (Convicted)
5. Ashish Goyal @ Ashu S/o Braj Mohan Goyal R/o E13, Shivaji Road, Adarsh Nagar, Delhi.
(Convicted) SC No. 958/08, State Vs. Taufiq etc., FIR No. 656/07, PS Jahangirpuri Page 60 of 71 FIR No.: 656/2007 Under Section: 307/341/506/34 Indian penal Code.
Police Station: Jahangirpuri
Date of conviction: 5.8.2011
Arguments heard on: 11.8.2011
Date of sentence: 12.8.2011
APPEARANCE:
Present: Sh. Taufique Ahmed, Addl. Public Prosecutor for the
State.
All the convicts are in judicial custody with Sh. Rajender Yadav and Sh. Anshuman Gargesh Advocates.
ORDER ON SENTENCE:
Vide my detailed judgment dated 5.8.2011, the accused Tofiq, Yusuf, Babloo, Jugal Kishore and Ashish Goyal have been held guilty of the offence under Sections 307/341/34 Indian Penal Code and accordingly convicted. However, all the accused have been acquitted of the charge under Section 506 Indian Penal Code.
As per the allegations, on 16.10.2007 at about 8:00 PM at IBlock, Jahangir Puri, Delhi near corner of park at 500 Wali Gali all the accused Tofiq, Yusuf, Babloo, Jugal Kishore and Ashish Goel @ SC No. 958/08, State Vs. Taufiq etc., FIR No. 656/07, PS Jahangirpuri Page 61 of 71 Ashu Baniya in furtherance of their common intention wrongfully restrained the complainant Smt. Tulsi and her son Dharmender after which they caused injuries on the right hand, left knee of Dharmender by using sword, Chapar and hockey stick with such intention and under such circumstances that by that act if they had caused the death of Dharmender they would have been guilty of murder. Further, all the accused in furtherance of their common intention had threatened the complainant Smt. Tulsi and her son to kill. All the accused were charged for the offence under Section 307/506/341/34 Indian Penal Code.
On the basis of the testimonies of the various witnesses examined by the prosecution including the injured Dharmender and the complainant Smt. Tulsi and also on the basis of the medical evidence on record, it was held that the prosecution has been able to establish that the complainant Smt. Tulsi and the injured Dharmender were wrongfully restrained by the accused Yusuf and Taufiq who were armed with Churra/ Chappar like objects after which the accused Yusuf and Taufiq assaulted Dharmender with Churra/ Chappar like objects. It was also proved that in the meanwhile the coaccused Bablu, Jugal Kishore and Ashish @ Ashu also came there duly armed with sword and danda/ hockey and joined Yusuf and Taufiq and inflicted injuries upon Dharmender. The injured Dharmender suffered multiple injuries all over his body and also SC No. 958/08, State Vs. Taufiq etc., FIR No. 656/07, PS Jahangirpuri Page 62 of 71 grievous injury on his head i.e. vital organ. Further, after their arrest the accused Taufiq, Yusuf, Bablu and Ashish @ Ashu got recovered the weapons of offence i.e. three churras and one danda, respectively. This court has held all the accused Tofiq, Yusuf, Babloo, Jugal Kishore and Ashish Goyal have been held guilty of the offence under Sections 307/341/34 Indian Penal Code and accordingly convicted. However, all the accused have been acquitted of the charge under Section 506 Indian Penal Code.
I have heard the arguments on the point of sentence. Sh. Rajender Yadav, Advocate appearing on behalf of the convicts Tofiq, Yusuf, Babloo and Jugal Kishore has vehemently argued that though the convicts Tofiq and Yusuf are involved in other cases but they have not been convicted so far in any other case. Further, he submits that the convicts Babloo and Jugal Kishore are not involved in any other case and states that any strict punishment would be prejudicial to the family members of the convicts and he requests that a lenient view be taken against them. Sh. Anshuman Gargesh, Advocate appearing on behalf of the convict Ashish Goyal has argued that the convict Ashish Goyal is a first time offender and has no criminal case pending against him. He requests that a lenient view be taken against him keeping in view his young age. The counsels for the convicts have also filed applications for grant of benefit of Probation of Offenders Act to the convicts.
SC No. 958/08, State Vs. Taufiq etc., FIR No. 656/07, PS Jahangirpuri Page 63 of 71
Ld. Addl. Public Prosecutor on the other hand has prayed that a strict punishment be awarded to the convicts keeping in view the allegations involved and the nature of injuries received by the victim. He has opposed the application of the convicts praying for benefit of Probation of Offenders Act on the ground of maintainability.
The convicts Tofiq and Yusuf are real brothers. The convict Tofiq is aged about 32 years having a family comprising of aged parents, two brothers, one sister, wife, one daughter and one son. He is 7th class pass and is a vegetable seller by profession. He has already remained in judicial custody for about 2 months and 17 days. He has a number of other involvements in cases of similar nature in the same area details of which are as under:
1. FIR No. 552/95, under Sections 354/34 IPC, Police Station Jahangir Puri.
2. FIR No. 334/02, under Sections 323/341/34 IPC, Police Station Jahangir Puri.
3. FIR No. 351/04, under Sections 323/325/341/34 IPC, Police Station Jahangir Puri.
4. FIR No. 414/04, under Sections 308/427/452 IPC, Police Station Jahangir Puri.
SC No. 958/08, State Vs. Taufiq etc., FIR No. 656/07, PS Jahangirpuri Page 64 of 71
The convict Yusuf is aged about 36 years having a family comprising of aged parents, two brothers, one sister, wife, three daughters and one son. He is 5th class pass and is a vegetable seller by profession. He has already remained in judicial custody for about 2 months and 21 days. He is also involved in a number of similar cases from the same area, details of which are as under:
1. FIR No. 385/96, under Sections 324/34 IPC, Police Station Jahangir Puri.
2. FIR No. 317/2000, under Sections 324/506/34 IPC, Police Station Jahangir Puri.
3. FIR No. 523/2001, under Sections 324/34 IPC, Police Station Jahangir Puri.
4. FIR No. 334/02, under Sections 323/341/34 IPC, Police Station Jahangir Puri.
5. FIR No.351/04, under Sections 323/325/341/34 IPC, Police Station Jahangir Puri.
6. FIR No. 414/04, under Sections 308/34/427/452 IPC, Police Station Jahangir Puri.
The convict Bablu is a young boy of 26 years having a family comprising of aged widow mother, two younger brothers, wife and a newly born daughter (aged 9 days). He is 7 th class pass SC No. 958/08, State Vs. Taufiq etc., FIR No. 656/07, PS Jahangirpuri Page 65 of 71 and is a challi seller by profession. He has already remained in judicial custody for about 1 month and 26 days. He is also involved in another case bearing FIR No.125/09, under Sections 376(g)/342/506/34 IPC, Police Station Jahangir Puri.
The convict Jugal Kishore is aged about 28 years having a family comprising of aged father, his mother has already expired, one elder brother, two married sisters, wife and two daughters. He is 7th class pass and is an iron moulder by profession. He has already remained in judicial custody for about 1 month and 21 days. He is also involved in another case bearing FIR No.245/97, under Section 302 IPC, Police Station Jahangir Puri.
The convict Ashish @ Ashu is a young boy of 24 years having a family comprising of aged parents, two brother and one unmarried sister. He is a Graduate and is doing a tehbazari. He has already remained in judicial custody for about 1 month and 27 days. He is a first time offender and is not involved in another case.
I have considered the rival contentions. I may observe that initially during the trial the Ld. Predecessor of this court was informed that there was a compromise between the convicts and the injured who was a resident of the same area which aspect also finds a mention in the testimony of the injured Dharmender. Now at the stage of sentence, the injured Dharmender has appeared before this court and made a specific statement to the court that initially when SC No. 958/08, State Vs. Taufiq etc., FIR No. 656/07, PS Jahangirpuri Page 66 of 71 his statement was being recorded the convicts had come to him and pleaded to him to settle the matter on account of which he during his deposition has informed the Ld. Predecessor of the Court about this fact. He states that after his testimony was recorded, the convicts did not bother to approach him for a settlement despite their earlier stand. He has further informed this court that the convicts had also filed a quashing petition in the Delhi High Court but since the compromise could not materialized, therefore, the Hon'ble Delhi High Court was of the view that this issue can be considered by the trial court. Now Dharmender who was called at this stage of sentence and given a hearing states that there is no compromise nor he is interested in any settlement talks with the convicts. This being so the argument raised by the Ld. Counsels for the convicts that they had settled their disputes with the injured which should be considered as a mitigating factor, does not hold any merit.
The convicts Tofiq and Yusuf have been declared Bad Characters of the area. Though the Ld. Counsel for the the convicts Babloo and Jugal Kishore has argued that both the convicts have no other criminal case, yet on inquiry from the Investigating Officer, it was revealed that the convict Babloo is also involved in another case bearing FIR No.125/09, under Sections 376(g)/342/506/34 IPC, Police Station Jahangir Puri and the convict Jugal Kishore is also involved in case bearing FIR No.245/97, under Section 302 IPC, SC No. 958/08, State Vs. Taufiq etc., FIR No. 656/07, PS Jahangirpuri Page 67 of 71 Police Station Jahangir Puri. Only the convict Ashish Goyal is a first time offender and is not involved in any other case. It is evident from the above that convicts who are young boys are ruffians and their repetitive acts are adversely affecting social order. Young boys who are regularly indulging into these hooliganism having scant respect for law, who do not hesitate to use dangerous weapons and force upon the residents only to establish their supremacy in the area, do not deserve any mercy. People fear to depose against such persons as was the case of the injured before this court. Undue sympathy to the convicts to impose inadequate sentence would do more harm to the Justice System and undermine the public confidence in the efficacy of law. Having regards to the nature of the offence and the manner in which it was executed, I hereby hold that no leniency can be shown to the persons who have no respect for life and anyone who do not hesitate to take law into his hand, any indulgence or sympathy by the Court under the given circumstances would be misplaced.
In view of the above, I hereby award the following sentence to the convicts:
The convict Tofiq is sentenced to Rigorous Imprisonment for a period of Six years and fine to the tune of Rs.15,000/ for the offence under Section 307 read with 341 Indian Penal Code. In default of payment of fine the convict shall further SC No. 958/08, State Vs. Taufiq etc., FIR No. 656/07, PS Jahangirpuri Page 68 of 71 undergo Simple Imprisonment for a period of One Month. The entire fine amount of Rs.15,000/ if recovered, shall be paid to the injured Dharmender as compensation under Section 357 Cr.P.C.
The convict Yusuf is also sentenced to Rigorous Imprisonment for a period of Six years and fine to the tune of Rs.15,000/ for the offence under Section 307 read with 341 Indian Penal Code. In default of payment of fine the convict shall further undergo Simple Imprisonment for a period of One Month. The entire fine amount of Rs.15,000/ if recovered, shall be paid to the injured Dharmender as compensation under Section 357 Cr.P.C.
In so far as the convicts Babloo and Jugal Kishore are concerned, their cases are distinguishable from the convicts Tofiq and Yusuf. Keeping in view their previous criminal record, the convict Babloo being involved in a case under Sections 376(2) (g)/ 342/506/34 IPC and the convict Jugal Kishore being involved in a case under Section 302 IPC (both of which are heinous offences), I hereby award the following sentence to them:
The convict Babloo is sentenced to Rigorous Imprisonment for a period of Four years and fine to the tune of Rs.15,000/ for the offence under Section 307 read with 341 Indian Penal Code. In default of payment of fine the convict shall further undergo Simple Imprisonment for a period of One Month. The SC No. 958/08, State Vs. Taufiq etc., FIR No. 656/07, PS Jahangirpuri Page 69 of 71 entire fine amount of Rs.15,000/ if recovered, shall be paid to the injured Dharmender as compensation under Section 357 Cr.P.C.
The convict Jugal Kishore is also sentenced to Rigorous Imprisonment for a period of Four years and fine to the tune of Rs.15,000/ for the offence under Section 307 read with 341 Indian Penal Code. In default of payment of fine the convict shall further undergo Simple Imprisonment for a period of One Month. The entire fine amount of Rs.15,000/ if recovered, shall be paid to the injured Dharmender as compensation under Section 357 Cr.P.C.
In so far as the convict Ashish Goyal is concerned, he is not involved in any other case and is a first time offender. Hence, his case is distinguishable from that of all the other convicts and hence lenient view is taken against him. I hereby sentence him to Rigorous Imprisonment for a period of Three years and fine to the tune of Rs.15,000/ for the offence under Section 307 read with 341 Indian Penal Code. In default of payment of fine the convict shall further undergo Simple Imprisonment for a period of One Month. The entire fine amount of Rs.15,000/ if recovered, shall be paid to the injured Dharmender as compensation under Section 357 Cr.P.C.
The convicts are already in judicial custody. They are sent to custody for serving the remaining sentence. Benefit of Section 428 Cr.P.C. shall be given to the convicts for the period SC No. 958/08, State Vs. Taufiq etc., FIR No. 656/07, PS Jahangirpuri Page 70 of 71 undergone by them during the trial, as per rules.
The convicts are informed that they have a right to prefer an appeal against this judgment. They have been apprised that in case they cannot afford to engage an advocate, they can approach the Legal Aid Cell, functioning in Tihar Jail or write to the Secretary, Delhi High Court Legal Services Committee, 3437, Lawyers Chamber Block, High Court of Delhi, New Delhi.
Copy of the judgment and order on sentence be given to the convicts free of costs and another be attached with their jail warrants.
File be consigned to Record Room.
Announced in the open court (Dr. KAMINI LAU)
Dated: 12.8.2011 ASJII(NW)/ ROHINI
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