Delhi District Court
State vs . Akbar & Ors on 31 May, 2011
IN THE COURT OF SHRI SURINDER S. RATHI:ASJ:02:
CENTRAL: ROOM NO.32:TIS HAZARI COURTS :DELHI
ID NO: 02401R0260752009
FIR NO:414/08
U/s 307/34 IPC
P.S. PATEL NAGAR
STATE vs. AKBAR & ORS
JUDGMENT
1 Sl. No. of the Case SC NO: 48/09
2 Date of Committal to Sessions 31.07.09
3 Name of the complainant STATE
4 Date of commission of offence 05/10/08
5 Name of accused, parentage and address 1. ACCUSED AKBAR, S/o Mohd. Mosin, R/o Jhuggi A 236, Kathputli Colony, Patel Nagar, Shadipur Depot, Delhi
2. ACCUSED ANWARI, W/o Mohd. Mosin, R/o Jhuggi A236, Kathputli Colony, Patel Nagar, Shadipur Depot, Delhi
3. ACCUSED MOHD. MOTI, S/o Sh. Amirul Hussain, R/o A235, Kathputli Colony, Patel Nagar, Shadipur Depot, Delhi
4. ACCUSED MOHD. RAJA, S/o Mohd.
Hasim, R/o A213,Kathputli Colony, Patel Nagar, Shadipur Depot, Delhi
5. ACCUSED MOHD. GULAB, S/o Mohd.
Moti R/o A235, Kathputli Colony, Patel Nagar, Shadipur Depot, Delhi 6 Offence complained of 307/34 IPC 7 Offence charged of 307/34 IPC 8 Plea of guilt PLEADED NOT GUILTY 9 Final order CONVICTED U/s 324/34 IPC STATE vs. AKBAR & ORS Page 1 of 9 of Judgment dated 26.5.2011 10 Date on which order reserved 26.05.2011 11 Date on which order announced 26.05.2011 BRIEF REASONS FOR DECISION
1. Case of the prosecution as per chargesheet is that on 05.10.08 upon receipt of DD No. 76B at around 9:30 PM Ex. PW 8/A qua a quarrel, HC Ashok of PS Patel Nagar reached the spot near Hawaan Chai wala , Kathputli Colony. He found that injured Mohd. Akbar was removed to DDU Hospital. Vide MLC Ex. PW 12/A his injury was opined to be simple and he was discharged. He was got readmitted by his mother again on 06.10.08 and meantime DD entry was kept pending and the injured was declared fit for statement. He told the IO vide his statement Ex. PW 1/A dated 07.10.08 that he is aged about 12 th yrs. and student of 4 standard in Govt. School, Pandav Nagar. On 05.10.08 at around 9:30 PM near the shop of Hawaan Chaiwala Accused Raja, Akbar, Gulab, Moti and Akbar's mother Smt. Anwaria were fighting with his mother. When he objected to it accused Moti caught hold of his legs, Akbar his hands, Gulab his neck & Raja started assaulting him with knife. He was hit with knife STATE vs. AKBAR & ORS Page 2 of 9 of Judgment dated 26.5.2011 on stomach and chest. Upon this accused Anwaria shouted that "Maar" and she will take care of police case. On this statement IO got FIR U/s 324/34 IPC Ex. PW 3/A registered vide endorsement Ex. PW 3/B. Further investigation was carried by ASI OM Prakash and Tshirt Ex. P1 of injured was seized vide Ex. PW 2/A. Accused Akbar was arrested vide arrest memo Ex. PW 5/B & personal search Ex. PW 5/C and pointing out of the spot memo Ex. PW 5/D and disclosure Ex. PW 5/E. Other accused were arrested vide Memos Ex.PW5/F to L. Disclosure of Raja Ex. PW 11/A and pointing out memo Ex.PW 5/M. However considering the nature of statement U/s 307 IPC was invoked during investigation. No recovery could be effected from the accused persons. Injury was subsequently opined as dangerous. Statement of witnesses were recorded. Upon conclusion of investigation chargesheet U/s 307/34 IPC was filed. All the accused wee charged. To prove its case prosecution examined 12 witnesses and 313 statement of the accused were recorded apart from one defence witness.
STATE vs. AKBAR & ORS Page 3 of 9 of Judgment dated 26.5.2011
2. I have heard arguments of Ld. APP Sh. G.S. Guraya for State and Ld. Counsel for accused Sh. Ayub Ahmad Khurashi and have perused the case file.
3. First witness of the prosecution PW1 is complainant injured Akbar who deposed on the lines of the statement . He identified all the accused correctly in the court. He identified his Tshirt as Ex. P1.
4. PW2 is Ms. Shahjahan Khatoon, mother of injured. She also deposed on the prosecution case and identified all the accused as neighbours repeatedly assaulted her son on chest and abdomen.
5. PW3 is HC Ramesh Chander, Duty Officer , PS Patel Nagar, who registered the FIR in hand.
6. PW4 is HC Ashok Kumar who took FIR to initial IO.
7. PW5 is ASI Om Prakash Second IO of this case. He reiterated the steps taken by him during investigation.
8. PW6 is HC Jaipal , MHC (M) who deposited one sealed pulanda Ex. PW 6/A. STATE vs. AKBAR & ORS Page 4 of 9 of Judgment dated 26.5.2011
9. PW7 is HC Pawan Kumar, who joined investigation on 21.10.08 during arrest.
10. PW8 is ASI Ashok Kumar, who is initial IO and got the FIR registered.
11.PW9 is Ct. Rajesh Kumar, who produced TShit of the injured Ex.P1.
12.PW10 is Ct. Kishan Kumar, who brought accused Mohd. Raja to court for PC Remand.
13.PW11 is Ct. Harmeet, who presented the accused Mohd. Raza vide arrest memo Ex. PW 5/K.
14.PW12 is Dr. Rajesh Kohli who proved MLC of injured Ex. PW 12/A as per which injuries were opined major.
15.Upon conclusion of prosecution evidence, separate statement U/s 313 Cr. P.C. of the accused were recorded wherein accused Mohd. Akbar claimed that he was not present at the spot. He further stated that both their families had quarreling relations and another criminal case is registered between them. Accused Raja deposed that Akbar was injured in an incident and had STATE vs. AKBAR & ORS Page 5 of 9 of Judgment dated 26.5.2011 to be readmitted in the hospital. He accepted that they have old anamity between the families and claimed that he has falsely implicated in this case. Accused Gulal also claimed that he has falsely implicated in this case.
16. In the defence accused examined DW1 Babar Ali. In his one line statement he deposed that no incident had taken place on the said date and time. He conceded that Accused Moti is known to him for 1213 yrs.
17.While opening his submissions it is argued on behalf of the accused that there is an explained delay of three days in the lodging of FIR. Incident is said to be of 05.10.08 while FIR has been registered on 08.10.08. Although police states that PW1 injured was discharged on the same day when his injuries were found simple but it is said that he was readmitted on 06.10.07. There is no explanation as to why IO did not return back to the house of the injured on 05.10.08 itself and recorded his statement. Even otherwise in case the injured was not well then IO could have atleast recorded statement of injured's mother Smt. Shahjahan Khatoon. This failure on the part of the IO arouses STATE vs. AKBAR & ORS Page 6 of 9 of Judgment dated 26.5.2011 suspicion. More so, when admittedly both the parties had cross criminal rape cases against each other's family members which were ultimately disposed off in the judgment of the acquittal after the claimed out of court settlement.
18.It is further observed that IO did not take any pain to collect the blood stained earth etc. from the spot. Also, even the weapon of offence was not recovered without any satisfactory justification. It is observed that initially FIR U/s 324 IPC was registered considering the fact that both the injuries were superficial in nature and were opined simple. In a subsequent opinion the injuries were stated to be dangerous in nature. Medicolegal terminology does not use the word dangerous injury in so far as the terms used are hurt and grievous hurt apart from life endangering injury as a species of grievous injury. The term dangerous is only used for weapons.
19. It is further observed that as per deposition of PW1 and PW2 injured was assaulted with a knife but interestingly, neither of the injury was opined to be incised. They were rather opined to be contrused lacerated wounds .It is also STATE vs. AKBAR & ORS Page 7 of 9 of Judgment dated 26.5.2011 observed that the extortion assigned to accused Anwari in the FIR was considerably changed and altered by the witnesses in the court .She has not been assigned any role other than the extortion. PW1 also gave confusing description of the role laid by each individual accused. There is nothing on record to show that the claimed cuts on the Tshirt Ex. P1 did correspond with seat of the injuries . Concerned doctor did not take pains in marking the human caricature to identify the seat of the injury . In the absence thereof it is almost improbable to ascertain if the injuries were actually life endangering or not so as to bring them U/s 307 IPC.Further more the words said to have been used by accused Anwari primarily includes word "Maar beta maar". Here the word"maar" does not necessarily mean to kill . It is a settled legal preposition that word "maar" also connotes beating which cannot invoke 307 IPC. The delay in lodging of FIR coupled with the old enemity leaves a scope of adding inputs so as to make out a serious case out of a simpler one. As such I have no hesitation in concluding that prosecution has failed to prove on STATE vs. AKBAR & ORS Page 8 of 9 of Judgment dated 26.5.2011 record ingredients of 307 IPC against either of the accused.
20.However the deposition of injured and other eye witness supported by other oral and documentary evidence as discussed supra does establish commission of offence punishable U/s 324/34 IPC. As such all the accused are convicted U/s 324/34 IPC. Order on sentence would be passed separately after affording the opportunity of being heard to all the accused. ANNOUNCED AND DICTATED IN OPEN COURT ON: 26.5.2011 (SURINDER S. RATHI) ASJ:02:CENTRAL:DELHI 26.05.2011 STATE vs. AKBAR & ORS Page 9 of 9 of Judgment dated 26.5.2011 IN THE COURT OF SHRI SURINDER S. RATHI:ASJ:02:
CENTRAL: ROOM NO.32:TIS HAZARI COURTS :DELHI FIR NO.414/08 P.S. PATEL NAGAR U/s 307/34 IPC SC NO:18/09 STATE Vs. AKBAR & ORS.
26.05.2011 PR: Ld. APP for State Sh. G.S. Guraya
All the accused on bail with Ld. Counsel Sh. Ayub Ahmad Qureshi Case is fixed for FA. Vide separate judgment of the day all the accused are convicted U/s 324/34 IPC . Let a notice be issued to injured through SHO, PS Patel Nagar for hearing on sentence i.e. 31.05.2011.
(SURINDER S. RATHI) ASJ:02:CENTRAL:DELHI 26.05.2011 STATE vs. AKBAR & ORS Page 10 of 9 of Judgment dated 26.5.2011 STATE vs. AKBAR & ORS Page 11 of 9 of Judgment dated 26.5.2011