Delhi District Court
Zahoor Ahmed vs State on 29 April, 2016
Unique ID No.02401R0242972016
IN THE COURT OF SPECIAL JUDGE, CBI (PC ACT)-06, CENTRAL DISTRICT, TIS
HAZARI COURTS, DELHI
Criminal Revision No. 38/2016
Unique ID No.02401R0242972016
1. Zahoor Ahmed,
S/o Late Abdul wahid
2. Zuber Ahmed
S/o Sh. Zahoor Ahmed
Both R/o 9821, Gali Zamir wali,
Nawab Ganj, Azad Market,
Delhi. .....Petitioners
Versus
State ..... Respondent
Instituted on : 05th March, 2016
Argued on : 29th April, 2016
Decided on : 29th April, 2016
ORDER
1. This revision petition u/s 397 and 399 of the Code of Criminal Procedure (Cr.P.C.) is preferred against order dated 7 th October 2015, passed by the Court of Sh.Babru Bhan, Ld. Metropolitan Magistrate-07 Central, Delhi, whereby the petitioners Zahoor Ahmed and Zuber Ahmed have been summoned to face trial for the offence punishable 324 r/w Section 34 IPC.
2. Impugned order is dated 7th October, 2015, whereas this revision petition was filed on 4th April, 2016. Thus, there is a delay of 88 days in filing the revision. An affidavit is filed by the petitioner No.1 in support of his application for condonation of delay in filing this revision petition. At the outset, this court has heard the submissions advanced by learned counsels for the parties on the application for condonation of delay. Sh. F. Khan, learned counsel appearing for the petitioner submitted that the petitioners received notice on 4 th November, 2015 for appearance on 19 th November, 2015. In the notice sent by trial court 'cancel report' was mentioned on 19 th November, C.R. No.13/2016 Page 1 out of 6 Unique ID No.02401R0242972016 2015 petitioners appeared before the trial court and were admitted on bail. Matter was listed by the trial court for pre-charge evidence, but they were not supplied copies of the charge sheet and documents. On the next dated i.e. 15 th March, 2016, learned trial court noted that matter was inadvertently listed for pre-charge evidence, whereas case was filed on police report. Copies were not supplied to petitioner on that date. Notice was issued to IO for supplying of copies. It is submitted that petitioners were not having knowledge of the matter, and were not supplied with copies of documents and charge sheet. On 5th March, 2016 petitioner applied for obtaining certified copies for documents and charge sheet and received copies on 19 th March, 2016. It is submitted that one of the petitioner Zahoor Ahmad, petitioner No.1 suffering from various ailments and suffered two heart attacks. He was not keeping well since 16 th October, 2015 till 11th March 2016. After obtaining certified copies and receiving instructions from the petitioners, revision petition was filed by his counsel on 4 th April, 2016.
3. In view of circumstances explained by petitioner, the delay in filing the revision petition is condoned in the interest of justice and this court has proceeded to hear Parties on merits.
4. In brief, relevant facts leading to the filing of this Petition are as under:
On 18th August 2012, a FIR no. 175/2012 u/s 324/506/34 IPC was registered at PS Sabzi Mandi, pursuant to a complaint case u/s 200 Cr.PC filed by the complainant Amir S/o Mohd. Naeem on 5th June, 2012 and subsequent direction of the learned Metropolitan Magistrate on 16th August, 2012 u/s 156 (3) Cr.PC. In brief, case of the complainant is that on 28th March 2012 at about 8 to 8.30pm, at main road Sabzi Mandi in front of Kamla Nehru Park, he was caught hold by Zuber Ahmed (A-2) and C.R. No.13/2016 Page 2 out of 6 Unique ID No.02401R0242972016 was inflicted injuries by a sharp edged object. His father Zahoor Ahmed and one more person had also beaten him. Zuber Ahmed and Zahoor Ahmed are stated to be residing at the ground floor of house No. 9821. On receipt of information, registered vide DD No.32A at 9.05pm dated 28 th March, 2012, SI Sunil Kumar reached at the spot, but injured was not found at the spot and then, on receipt of information from Hindu Rao Hospital as regards admission of the injured Amir, SI Sunil Kumar reached there and collected his MLC. Injured arrived at hospital at 9.30pm and was brought by one Shahid. Injuries noted in the MLCs are incised wound of 3x1 cm over frontal bone midline and other multiple incised wounds over front and back of chest, abdomen only superficial and bleeding was also noted. Kind of weapon used was 'sharp' and nature of injuries was opined as Simple.
5. During investigation, call detail records of the mobile phones of both the parties were obtained. Location of Amir was found in the area of Sabzi Mandi Arya Pura at the time of calling the police at 100 number at 8.57/8.58pm and of accused Zuber Ahmed at 8.34pm was of Sarai Phoos as per the charge sheet. Charge sheet further noted that the clothes and the wounds were not matching as regards sharp edged weapon and there were several shop keepers and Rehri walas, but no one had reportedly seen the alleged incident and the complainant had also not met the PCR officials. The forensic doctor opined that possibility of self inflicted injuries could not be ruled out as regards injuries other than injury no. 1. As per IO, there was no sufficient material to warrant the arrest of the accused and thus, a closure report u/s 169 r/w 173 was filed before the trial court on 10 th October, 2012.
6. Complainant filed a protest petition against the closure report filed by the police. After hearing the submissions advanced by the complainant on his protest petition, C.R. No.13/2016 Page 3 out of 6 Unique ID No.02401R0242972016 learned trial court summoned the accused (petitioner herein) to face trial for the offence u/s 324 r/w 34 IPC. Relevant portion of the impugned order reads as under:
"The complainant has alleged that he wa assaulted by the accused persons on 28.03.2012 near Subzi Mandi park at about 8pm in the evening. These fact of presence of victim at the place of incident is also corroborated by the mobile location of the complainant.
So far as the location of accused persons is concerned, as per CDR, it was Green Park and Jor Bagh between 9.20pm to 9.50pm. The location of accused persons is shown after 1½ hours of incident. Hence, this evidence is not conclusive for the innocence of the accused because a person can reach Jor Bagh or Green Park within one hour from the place of occurrence.
So far as the opinion of the forensic expert is concerned, it is merely corroborating and not conclusive. They have only stated that possibility cannot be ruled out that the injuries were self inflicted. The possibility can be other way also.
Moreover, no opinion have been given regarding the injury No.1 including the 9cms long cut on the forehead with stitches. It appears from the report filed by the police that they have not conducted the investigation but concluded the trial also. There is sufficient material on record to summon the accused persons u/s 324/34 IPC".
7. Sh. F.Khan learned counsel appearing for the petitioner submits that impugned order whereby petitioners have been summoned is erroneous and bad in law. It is submitted that police after investigation, found that complaint was false. Secondly it is submitted that place of occurrence was opposite the police station subzi mandi on the main road at the corner of the park and a Santri of Police Station was present at the gate of police station and other persons, shop keepers/Rehri walas from whom, IO made enquiries denied about the alleged occurrence. It is submitted that complainant Aamir was having the mobile phone, but he instead of calling police at 100 number from his mobile phone, made call from the phone of some other person's mobile.
8. Learned counsel appearing for the petitioner further argued that as per the complainant, after the alleged incident, he had become unconscious and public C.R. No.13/2016 Page 4 out of 6 Unique ID No.02401R0242972016 persons had taken him to the hospital, whereas, as per the MLC one Shahid, relative of the complainant had taken him to Hindu Rao hospital and the PCR officials as well as IO SI Sunil Kumar, had reached at the spot found nobody at the spot. Learned counsel submits that entire case of the prosecution is based on the statement of the injured Amir and medical evidence. It is submitted that IO recorded statement of complainant twice i.e. on 28.03.2012, which statement is signed by the complainant and another statement on 19.04.2012 u/s 161 Cr.PC and these contradictions between two statements.
9. On scrutiny of material on record, this court finds that learned trial court rightly noted that the presence of the victim at the place of incident is corroborated by his mobile location. As regards location of the Mobile phone of the accused Zuber between 9.20 to 9.50pm at Green Par or Jor Bagh as per CDR or the distance of the said location from the place of incident or the question as to whether he could have reached from the place of occurrence or whether he was present at the spot or not, are the disputed questions of facts and the evidence of CDR is not conclusive to indicate innocence of the accused. Opinion of Dr. Manoj, forensic expert not ruling out possibility of injuries No. 2 to 12 being self-inflicted, is not sufficient to discharge the accused persons, particularly when admittedly there is no opinion of the expert regarding injury No.1. Admittedly, alleged history of assault is noted in the MLC and injury No.1 is incised wound of 3x1 cm over frontal bone midline, which are opined by the examining doctors as having been caused by sharp weapon and injuries were opined as Simple.
10. This court is in agreement with the submissions advanced by Sh. Himanshu Garg, Learned Additional PP that the alleged contradictions in the statements of the C.R. No.13/2016 Page 5 out of 6 Unique ID No.02401R0242972016 complainant, if any, as regards the accused who actually inflicted injuries to him or as regards taking the injured to the hospital by Shahid or the fact that he had become unconscious and then how could he call the police at 8.57pm or as regards contradiction in the dimension of injury No.1 as noted in the MLC and as noted by Dr. Manoj Kumar, Forensic Expert would be looked into during trial. At this stage, the trial court had to consider, if there are sufficient material to proceed further with the case. The probative value to be attached to different pieces of evidence cannot be minutely looked into at the stage of summoning of accused. On perusal of the material on record, as a whole, this court finds that there is sufficient material to proceed further.
11. In view of forgoing reasons, this court finds no legal infirmity, impropriety or defect in the impugned order. In the result, this revision petition being devoid of any merit deserves dismissal. Ordered accordingly. Trial Court Record be sent back alongwith a copy of this order. Revision file be consigned to Record Room.
ANNOUNCED IN THE OPEN COURT VINAY KUMAR KHANNA
th
on 29 April, 2016 Special Judge-CBI (PC Act)-06
THC/Delhi
C.R. No.13/2016 Page 6 out of 6