Delhi District Court
State vs Md. Firasat And Ors. ( Cc No. 13513 Tagged ... on 5 December, 2023
IN THE COURT OF SH. JOGINDER PRAKASH NAHAR
ADDITIONAL SESSIONS JUDGE (FTC-01)
CENTRAL DISTRICT, TIS HAZARI COURTS, DELHI
SC No. 28891/2016 CNR No. DLCT01-015080-2017
FIR No. 217/2012
U/Sec. 308/34 IPC
P.S. Kotwali
STATE VERSUS MOHD. FIRASAT & ORS.
(i) SC No. of the case : 28891/2016
(ii) Date of commission of offence : 26.07.2012
(iii) Name, parentage and address : 1) Mohd. Firasat
of accused S/o Sh. Buddhu
R/o H.No. 2729, J-20
Kodia Pul, Delhi
2) Furkan (Expired)
S/o Sh. Firasat
R/o H.No. 2729, J-28,
Jhuggi Chhoti More
Sarai Rail Colony, HC
Sen Road, Delhi
3) Riyasat Hussain
S/o Sh. Buddhu
R/o 2729, J-20,
Jhuggi Chhoti More
Sarai Railway Colony
Kodia Pul, Delhi
4) Faijan
S/o Sh. Firasat
R/o 2729, J-28,
Jhuggi Chhoti More
Sarai Railway Colony, HC
Sen Road, Kodia Pul,
Delhi
SC No. 28891/2016
FIR No. 217/2012
State Vs. Mohd. Firasat & Ors. Page 1 of 21
(iv) Offence complained of : 308/34 IPC
(v) Plea of the accused : Pleaded not guilty
(vi) Final order : Accused namely Mohd.
Firasat, Riyasat Hussain
and Faijan stands
acquitted.
(vii) Date of such order : 05.12.2023
Date of Institution : 16.09.2016
Date of Judgment reserved on : 08.11.2023
Date of Judgment : 05.12.2023
JUDGMENT
BRIEF FACTS AND REASONS FOR DECISION :-
1. FIR in the present matter was registered on the complaint of Sh.
Mohd. Yameen dated 26.09.2012 around 4:45 pm when the complainant is taking out his iron material from the debris of his demolished jhuggi at Choti Mor Sarai, Railway Colony which was demolished by railway board then two person Firasat and Riyasat had asked the complainant that the goods belongs to them which was taken out from debris and they started abusing the complainant. The accused person had stated that they will deposit such goods in the department of electricity and thereafter Riyasat stated to beat the complainant. The accused Firasat had one leg of wooden cot with him which he hit on right hand of the complainant. The accused Riyasat had hit the complainant with an iron rod on his head. In the meanwhile the brother of complainant Mr. Yaseen sitting at Shop no. 161 was informed by someone who reached at the spot and objected to the beating of the complainant and on such objection the accused Furkan with SC No. 28891/2016 FIR No. 217/2012 State Vs. Mohd. Firasat & Ors. Page 2 of 21 iron rod and accused Firasat with leg of the cot had hit the head Sh. Yaseen. Somebody had informed the father of the victim in the Masjid who came and objected to such beating by accused person on which the accused Furkan had caught hold of father of complainant namely Sh. Mohd. Raseed and accused Mohd. Faijan had hit Mohd. Raseed with iron rod. All the victim had fallen down. Accused Mohd. Yaseen had called the police at 100 number and the victim were taken to LNJP hospital by the police. It is complained that the accused person Mohd. Firasat, Mohd. Riyasat, Furkan and Mohd. Faijan had caused such bodily injuries to the victim and also sold the iron material recovered from the demolished jhuggi of the victim and misappropriated the amount.
2. The police has recorded the date of incident as 26.07.2012 at 4:45 pm and information was given to the police at 5:40 pm dated 26.09.2012 which is after about 2 months from the date of incident. The FIR No. 217/2012 Ex.PW1/A was registered in the matter at PS Kotwali on Rukka Mark X sent through HC Sunil Kumar sent by ASI Sunil Kumar/IO. IO had recorded the statement of Sh. Mohd. Yameen which is Ex.PW3/A and made endorsement on the said complaint vide Ex.PW7/B. The IO had prepared the site plan at the instance of complainant Mohd. Yameen which is Ex.PW7/C=Mark PW2/1. The FIR was brought by SI Kuldeep and original Rukka on which PW-7 ASI Sunil Kumar had conducted further investigation. The MLC of the victim is Ex.PW7/E, ExPW7/F and Ex.PW7/G. The IO had proceeded from police station on receipt of DD No. 28A Ex.PW7/A and he met the victims Mohd. Yaseen, Mohd. Yamin and Mohd. Raseed at LNJP hospital. The IO had collected the MLC of injured Firasat and Riyasat.
SC No. 28891/2016 FIR No. 217/2012 State Vs. Mohd. Firasat & Ors. Page 3 of 213. The charge against four accused person was framed on 22.09.2016 under Section 308/34 IPC and prosecution had examined PW-1 to PW-10 and thereafter statement of accused was recorded under Section 313 Cr.PC. The accused persons have not preferred to lead defence evidence.
4. The case against accused no. 2 Furkan has already stood abated vide order dated 05.10.2023 who had expired on 28.08.2023 after due verification from PS Kotwali, Delhi. The accused no. 2 Furkan has already stood discharged in view of such abatement vide order dated 05.10.2023.
5. Final arguments are heard from both the parties and record perused.
6. To prove the offence the prosecution is required to establish the ingredients laid down under Section 308 IPC at para No.19 of citation titled Bali v. State Through Government of NCT in CRL.A.36/2021. The relevant para 19 is reproduced hereasunder:
"19. A bare reading of Section 308 IPC would show that to prove the commission of an offence thereunder, two ingredients are required to be established:
(i) that an act was committed, and
(ii) that the act was committed with such intention or knowledge and under such circumstances that, if death was caused by the act, the accused would be guilty of culpable homicide not amounting to murder."
7. Hence the prosecution has to prove as under:
1. The accused has committed a wrongful act.
2. Such wrong act was carried/committed out with such an SC No. 28891/2016 FIR No. 217/2012 State Vs. Mohd. Firasat & Ors. Page 4 of 21 intention or knowledge if death was caused by such an act.
3. The act was committed under such circumstances that, if death was caused by the act, the accused would be guilty of culpable homicide not amounting to murder.
8. Hence the first ingredient the prosecution has to prove is that the accused has committed a wrongful act which comes within Section 308 IPC. The complainant is examined as PW-3. It is deposed by PW-3 that on 26.07.2012 he alongwith Md. Yaseen and his father came to Chhoti Mor Sarai. He went to his demolished jhuggi to collect the articles lying there and when he was lifting an iron angle then accused Firasat and Riyasat residing in same locality asked them that the angle belongs to them. On such asking the PW-3 had given the angles to the accused person. When PW-3 was lifting a cable of electricity then accused person had asked for handing over the said electricity cable to them as it belongs to them. PW-3 had replied that he had to deposit this cable with the electricity department on which accused Firasat and Riyasat started abusing and accused Riyasat told "maro isse". The PW-3 has deposed in same terms of his complaint. It is admitted in cross-examination that on the date of incident they did not lodge any complaint. It is deposed that they had visited the police station and their complaint was not lodged by the police. PW-3 does not remember the time when he had visited the police station. Police station is about 10 minutes away by foot walking. They went to police station after discharge from the hospital after about 15-20 days of the incident. They went to police station from their residence at Bhajanpura. PW-3 does not remember the date and time of visit to police station. Complaint was not lodged in writing and they did not met the SHO. PW-3 had gone to police station 4-5 times. Date, month and time of which he does not remember. It is admitted SC No. 28891/2016 FIR No. 217/2012 State Vs. Mohd. Firasat & Ors. Page 5 of 21 as correct that no danda was recovered in presence of police. It is deposed that accused person are son of mausi of the complainant. Hence the complainant and accused person are relative of each other. This fact of relationship in family is not disclosed by PW-3 in his complaint before the police. Hence it is a material concealment on behalf of complainant. The fight which had occurred was in reference to electric wire. The said electric wire was not recovered. It is also admitted by PW-3 in cross-examination as correct that no danda or rod was recovered in presence of the police.
9. PW-8 Dr. Rajender Singh has deposed that on 26.07.2012, Dr. Bhupender had examined under his supervision the patient Md. Rashid aged about 80 years with alleged history of physical assault around 5 pm near his home address. A lacerated wound of size 3.5x0.5 cm was present on right side of forehead who was referred to Neurosurgery emergency. The MLC of patient Md. Rashid is Ex.PW7/E and PW-8 had assisted Dr. Bhupender. PW-8 is aware about the signature and handwriting of Dr. Bhupender as he has seen him writing and signing in the ordinary course of his duty. On 26.07.2012 Dr. Simple had examined patient Md. Yamin aged about 30 years with alleged history of physical assault. A lacerated wound or occipital region or two lacerated wound on forearm of size 1x1 cm and 3x1 cm with abrasion and swelling behind right ear was found. The MLC prepared by Dr. Simple is Ex.PW7/F and PW-8 is aware of signature and hand writing of Dr. Simple having seen her working in ordinary course of his duties. Dr. Bhupender had prepared MLC Ex.PW7/G. It is deposed by PW-8 that he did not personally or physically examined the injuries on the patient in all the three MLCs. The above injury could be caused both by blunt force impact and by fall. It is admitted as correct by PW-8 that all the SC No. 28891/2016 FIR No. 217/2012 State Vs. Mohd. Firasat & Ors. Page 6 of 21 three MLCs does not bear his signatures. In such view of the matter it is found that PW-8 had not physically examined the injured nor his signatures are on MLC, therefore, it cannot be said that PW-8 had assisted Dr. Bhupender in such examination of patient. There is absence of opinion of PW-8 that if medical treatment not given immediately then injured would have died. The doctor has not given the opinion that such injuries are dangerous for life. The doctor has not deposed that the nature of injuries were grievous. In MLC Ex.PW7/E of Md. Rashid mentions physical assault near home address and the home address is disclosed as H.No. 2729, J-25, Chhoti Mor Sarai, Delhi. The nature of injury was blunt. Similarly MLC Ex.PW7/F of Md. Yamin mentions about assault near home address. Same is mentioned in MLC Ex.PW7/G of Md. Yaseen. It is argued by the ld. Counsel for accused that when the jhuggi had already been demolished then there was no home at the said place. It is submitted that the complainant themselves were aggressors. It is deposed by PW-4 that the jhuggi has already been demolished by the railway authorities. The complainant had Shop at 161, Chhoti Mor Sarai, Delhi which was about 10 mins walking distance away. PW-4 had shifted at new address at Bhajanpura, Delhi after demolition of his said jhuggi in the year 2012. Hence at the time when the complainant had reached the spot of occurrence then his jhuggi was already demolished. It is deposed by PW-3 in cross- examination that the jhuggi was demolished by the authority on the date of alleged incident. Hence simple injuries are proved on the complainant. However the accused has also proved injuries on themselves. The accused Riyasat Hussain has MLC Ex.DA-1 who had also lacerated wound 5cm x 1cm alongwith other injuries. The MLC of accused Furkan is Ex.DA-2 who had lacerated wound of 2cm x 1cm. Hence both the parties have suffered SC No. 28891/2016 FIR No. 217/2012 State Vs. Mohd. Firasat & Ors. Page 7 of 21 injuries in the alleged incident which shows that there had an incident occurred at such date and time at the spot of incident.
10. The MLC Ex.DA-1 and MLC Ex.DA-2 which are prepared on 26.07.2012 which is the date of incident itself shows that such information must be available with the IO which he had not investigated. Hence the investigation on the part of IO is reflected with bias against the accused person and that the IO has not conducted fair investigation in this matter as far as accused person are concerned. There is doubt as to who were the actual aggressors at the time of incident. It is case of the prosecution that the jhuggi was demolished on the same day of the incident by the railway authorities and there was no contention before between both the parties. However, it has also come on record that the domestic articles were not lying inside the jhuggi as it is nowhere deposed by the prosecution witness that such articles were lying in the jhuggi. This shows that the domestic articles in jhuggi were already been removed and when no domestic articles were lying in the jhuggi then it was not in a habitable condition. It therefore proves on record that the complainant were not residing in the said jhuggi on the date of incident and they were residing somewhere else. The complainant and injured therefore had reached at the spot from place other than the jhuggi. The place of residence of the complainant/PW-3 is at Chand Bagh, Karawal Nagar, Bhajanpura, Delhi. Similarly the same is the residence of PW-4 and PW-5. Cleverly the PW-3, PW-4 and PW-5 have not disclosed the fact that on which date they had shifted at the new address at H.No. 440, F-Block, Gali no. 15, 25 Foota road, Chand Bagh, Karawal Nagar, Bhajanpura, Delhi. What PW-3 to PW-5 have deposed that the goods at which the dispute had arisen was an iron angle and a cable of SC No. 28891/2016 FIR No. 217/2012 State Vs. Mohd. Firasat & Ors. Page 8 of 21 electricity. That is all over which dispute had allegedly arisen at the spot of incident which could only be the part of malba lying at the spot and definitely they were not the household articles through which a person can continue habitation in the said jhuggi at Chhoti Mor Sarai, Railway Colony, Delhi. In the FIR it is mentioned that the jhuggies were demolished on 24.07.2012 and the incident is dated 26.07.2012 and hence it proves that the date of demolition of jhuggi was not the same which the date of incident. Hence the PW-3 had deposed falsely before the present Court that the date of demolition of jhuggi is the same which is the date of incident. PW-3 Mohd. Yamin in cross-examination dated 09.01.2018 who is the complainant in this case has deposed at page no. 3 that the accused persons are sons of his "Mausi". Hence the relationship between the parties were concealed by PW-3 and the relationship is a relevant fact to ascertain motive between the parties which was when kept secret from the IO left the motive remained uninvestigated. Even though motive is not found then during investigation there is material concealment about relationship between complainant and the accused person on the record which was so concealed by the complainant since very beginning of the case. Therefore the presence of the complainant at the spot of occurrence at Chhoti Mor Sarai is not natural. The prosecution has also not disclosed the value of the iron angle and the cable of electricity which was allegedly been lifted from the spot by the complainant vis a vis the income status of the complainant to ascertain that whether the value of article which was iron rod and cable of electricity had any importance with the complainant and prosecution witness keeping in view their financial condition. When bias is shown on the part of investigating agency in not investigating the case on the aspect of injuries received on the part of accused person then it cannot be said that SC No. 28891/2016 FIR No. 217/2012 State Vs. Mohd. Firasat & Ors. Page 9 of 21 the version led by prosecution is a version of truth on facts of the case.
11. Ld. Counsel for the accused has relied on citation titled State of M.P vs. Mishrilal (Dead) & Ors. in Appeal (Crl.) 489 of 1996 from Hon'ble Supreme Court of India at relevant page no. 7 and 8 wherein it is held that the non explanation of injuries sustained by the accused is fatal to the case of the prosecution. In the present case the defence of the accused person is that the complainant are the aggressor. Keeping in view the nature of defence raised by the accused person it was incumbent on the part of prosecution to have explained the injuries sustained by the accused. The relevant para are reproduced hereasunder:
NON-EXPLANATION OF THE INJURIES SUSTAINED BY THE ACCUSED The last and which appears to be fatal to the prosecution case is non-explanation of the injuries sustained by the accused. As already said, accused Mishrilal received as many as five injuries, which were dangerous to life. Madusudan and Jamunanprasad received simple injuries. In Ex.P-1 as well as in the entire deposition of PWs, the prosecution has not explained the injuries sustained by the accused. In the background of the defence, as set up by the accused, it was incumbent on the part of the prosecution, to have explained the injuries sustained by the accused. The defence version is that on being retreated the bullock- cart of Babulal, the complainant party - Maharaj Singh, Gopal, Mathura Lal, Lakhan, Jagdish, Mulia, Kailash and Karan Singh came with lathis and farsa. Mathura Lal hit Mishrilal's head with the farsa and Babulal, Maharaj Singh and Karan Singh beat Mishrilal with lathis. Madhusudan ran to save his father Mishrilal and they also beat him. When Jamunanprasad came to save, he was also beaten up and on that Jamunaprasad ran towards the house and made two fires in the air to save his father. It is the case of defence that the bullet, which struck Bhavarsingh, came from towards the house of Babulal. In the face of defence version, which competes in probability with that of the prosecution case, it was mandatory on the part of the prosecution to have explained the injuries sustained by the accused and non-explanation of the injuries is fatal to the prosecution case. In Lakshmi Singh and others vs. State of Bihar, (1976) 4 SCC 394, referring to earlier SC No. 28891/2016 FIR No. 217/2012 State Vs. Mohd. Firasat & Ors. Page 10 of 21 decisions in Mohar Rai v. State of Bihar, (1968) 3 SCR 525: AIR 1968 SC 1281: 1968 Cri LJ 1479, it was held by this Court:
"where the prosecution fails to explain the injuries on the accused, two results follow:
(1) that the evidence of the prosecution witnesses is untrue; and (2) that the injuries probabilise the plea taken by the appellants in a murder case, the non-explanation of the injuries sustained by the accused at about the time of the occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:
(1) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;
(2) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; (3) that in case there is a defence version which explains the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case.
The omission on the part of the prosecution to explain the injuries on the person of the accused assumes much greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes in probability with that of the prosecution one.
However there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial or where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it far outweighs the effect of the omission on the part of the prosecution to explain the injuries."
In State of Rajasthan Vs. Madho, AIR 1991 SC 1065 at page 1067 this Court held as under:
"The fact remains that both the respondents had sustained serious injuries, Kishna mainly on the skull whereas Madho on the skull as well as scapular region. If the prosecution witnesses shy away from the reality and do not explain the injuries caused to the respondents herein it casts a doubt on the genesis of the prosecution case since the evidence shows that these injuries were sustained in the course of the same incident. It gives the impression that the witnesses are suppressing some part of the incident. The High Court was, therefore, of the opinion that having regard to the fact that they SC No. 28891/2016 FIR No. 217/2012 State Vs. Mohd. Firasat & Ors. Page 11 of 21 have failed to explain the injuries sustained by the two respondents in the course of the same transaction, the respondents were entitled to the benefit of the doubt as it was hazardous to place implicit reliance on the testimony of the injured PW-2."
In Ex.P-1, as already noticed, there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consist of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.
11.1 The defence version is that the "complainant party came to their jhuggi at Mor Sarai on the date of incident. The jhuggi of the accused person was also demolished and they were collecting their electricity cable which the complainant tried to collect though it belongs to accused person. On refusal to abide by the demand of complainant party they started beating the accused person with dandas and fist blows on which the accused Furkan had received injury on his head as well as on his left leg. The accused Riyasat had received injury on his legs as well as on his head. The accused Riyasat had received fracture on his left elbow and right leg. The complainant were aggressor and due to gathering of public the accused person could be saved from the complainant. Complainant had received injury on beating by the public".
12. It was held in the citation titled State of M.P. vs. Mishrilal (Dead) (supra) that where the prosecution fails to explain the injuries of accused then two results follow. One that the evidence of prosecution witness is untrue and secondly, the injuries on the accused person probalises plea SC No. 28891/2016 FIR No. 217/2012 State Vs. Mohd. Firasat & Ors. Page 12 of 21 taken by them and the non explanation of such injuries sustained by the accused at the time of the occurrence or in the course of altercation is a very important circumstances from which the Court can draw the inferences.
13. The injuries sustained by the accused persons are minor. However, they are received on head of accused Riyasat and accused Furkan among other parts of the body. The prosecution witnesses are related to each other and they are not independent and disinterested witness. The testimony of the witness is not consistent as to date of demolition of jhuggi, the value of articles which was allegedly being lifted from the spot is not proved, material concealment of relationship between the parties due to which the deposition of prosecution witness is not found credit worthy. The prosecution witness have shied away from the reality who do not explain the injury on the accused person and cast a doubt on the genesis of the case of the prosecution. The evidence shows that the injury sustained by accused person were in the course of same incident. It gives impression that the prosecution witness are suppressing some part of the incident. Hence the accused person are held entitled for benefit of doubt as it is hazardous to place implicit reliance on testimony of PW-3 to PW-5. It is therefore held that the prosecution witness has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and therefore the same is not accepted at its face value and it cannot be relied upon. In these circumstances the non explanation of injuries on the accused person by the prosecution proves fatal to the case of prosecution.
14. The ld. Counsel for accused relied on citation titled Harpreet vs. SC No. 28891/2016 FIR No. 217/2012 State Vs. Mohd. Firasat & Ors. Page 13 of 21 Kewal Thukral and Ors. in CRM-A No. 1709-MA of 2014 (O&M) from Hon'ble High Court of Punjab and Haryana at relevant page no. 13 which is reproduced hereasunder:
Similarly, in the present case also, the trial Court has recorded a finding that on appreciation of statements of witnesses has held that CW2 - Surinder Singh, husband of the complainant is interested witnesses and CW3 who is stated to be an eye-witness is, in fact, is uncle of the complainant and during deposition has given the date and time of the incident, which he had noted on his hand and thus he seems to be a tutored witness. The trial Court further recorded a finding that the incident took place on 28.07.2008 and the MLR was got conducted on 29.07.2008 and on the date of incident or subsequently, the complainant never approached the police. While acquitting the respondents/accused persons, the trial Court has also taken notice of the fact that the FIR case against the complaint side is also pending and on the appreciation of the prosecution evidence, in this case also, it could not be proved as to which party was aggressor or victim and was exercising its right of self-defence.
On perusal of the prosecution evidence also, a copy submitted by the learned counsel for the appellant, it is apparent that the instant complaint was also filed on 18.08.2008 relating to an incident of 28.07.2008 and in the intervening period, no complaint was lodged with the police. The complainant could not gave any explanation as to why she was not medico legally examined on the same day when she suffered the injuries and CW3, the alleged eye-
witness namely Mukhtiar Singh, has stated that he has written the date and time of incident on his hand while deposing before the Court and, therefore, possibility cannot be ruled out that this witness is a tutored witness. Moreover, this witness has admitted that he is uncle of the complainant and, therefore, he is an interested witness.
From a perusal of both the judgments i.e. the judgment passed in FIR case (Annexure A3) as well as the impugned judgment, the trial Court has rightly recorded a finding that though, the incident has taken place on 28.07.2008, however, its genesis is disputed. There are many infirmities and contradictions in the statement of witnesses and, therefore, the trial Court has rightly held that it could not be proved as to which party was aggressor or the victim which acted in self-defence. The incident took place with regard to a Naali (waste water outlet) and both the parties being neighbourers seems to have taken up a fight on sudden provocation.
SC No. 28891/2016 FIR No. 217/2012 State Vs. Mohd. Firasat & Ors. Page 14 of 21Counsel for the appellant as well as counsel for the respondents has further stated that subsequent to this incident dated 28.07.2008, no further incident has taken place between the parties and for the last about 11 years, they are living peacefully. This is yet another fact to be noticed that the incident has taken place due to sudden provocation and, thereafter, the parties being neighbourers, are residing peacefully.
In view of above, I find that the trial Court has rightly recorded a finding that in the version as well as in the cross-version, the complainants could not prove as to which party was aggressor or the victim which acted in self-defence, therefore, finding no merit/infirmity in the same, the appeal is dismissed.
15. It was held in case titled Harpreet vs. Kewal Thukral and Ors. (supra) that the genesis of the case is disputed and when there are many infirmities and contradiction in the statement of witness then it could not be proved as to which party was aggressor or the victim which acted in self defence then doubt arises in the case of prosecution. In the present case also as already discussed above the injuries on the accused person had remained unexplained keeping in view the doubt as to residence of complainant, false deposition of PW-3 as to date of demolition of jhuggi and material concealment of relationship between the parties shows that the version of the prosecution case is not full proof. The natural presence of the complainant at the place of incident is doubtful. It cannot be said with firmness that the accused person were the aggressors. It is quite possible that the complainant themselves were aggressors in the present case.
16. Other than this there is delay in lodging FIR in the present case. The date of incident is 26.07.2012 whereas FIR in the matter was registered after two months from the date of incident. It is deposed by PW-4 in cross- examination that he did not make any call to PCR on the date of incident. The distance between spot and police station was 10 minutes only. It is SC No. 28891/2016 FIR No. 217/2012 State Vs. Mohd. Firasat & Ors. Page 15 of 21 admitted as correct by PW-4 they were discharged from the hospital on the same day. It is deposed that they were not allowed to meet SHO but could not tell the name of the person who did not allow them to meet the SHO. They did not visit the police station on the next day. When after 15 days they visited police station and on that day also they did not meet SHO nor lodged a written police complaint. They again visited after 2-3 days at the police station and did not meet SHO. They did not file any written complaint despite a number of visits to any senior officials. Hence the complainant and prosecution witness had not filed any written complaint before any authority against the alleged aggression by the accused person. It cannot be said that the accused person were the aggressor. It cannot be said that any effort was made by the complainant to lodge complaint at the police station. Nor written complaint was moved and there is no explanation with the complainant for delay in lodging the FIR despite of their being discharged from the hospital on the same day. The relevant citation in this regard is reproduced hereasunder:
Hon'ble High Court of Delhi in case titled Jasbir Singh vs State on 12 May, 2022 in CRL.A. 95/2007 has held as under:
16. At this juncture, it is also argued by learned counsel for the appellant that the FIR was lodged by the complainant/father of the prosecutrix informing that on 25th September, 1998, his daughter has gone to purchase fruits and vegetables but she had not return.
He searched in his relations but could not come to know about her whereabouts. This information was given to the police on 28th September, 1998 i.e. after two days and one night. There was no explanation of the delay in lodging of the FIR of missing of his own daughter. Therefore, the said conduct of the complainant creates serious doubt in the story of the prosecution. Delay in lodging in FIR without any explanation.
24. In the instant case, the FIR was lodged by the complainant after an inordinate and unexplained delay of three days at Police Station, which renders the FIR in this case wholly unreliable. The delay in SC No. 28891/2016 FIR No. 217/2012 State Vs. Mohd. Firasat & Ors. Page 16 of 21 lodging the FIR corrodes the credibility of the prosecution story. The Hon'ble Supreme Court in several cases held that delay in loading the FIR creates a doubt, if the said delay is not properly explained.
25. In Thulia Kali v. The State of Tamil Nadu, (1972) 3 SCC 393, the Supreme Court, emphasising the necessity of explaining the delay in lodging FIR, has held as follows:
"12... First Information Report in a criminal case is an extremely vital and valuable piece of evidence for the purpose of corroborating the oral evidence adduced at the trial. The importance of the above report can hardly be overestimated from the standpoint of the accused. The object of insisting upon prompt lodging of the report to the police in respect of commission of an offence is to obtain early information regarding the circumstances in which the crime was committed, the names of the actual culprits and the part played by them as well as the names of eye witnesses present at the scene of occurrence. Delay in lodging the First Information Report quite often results in embellishment which is a creature of afterthought. On account of delay the report not only gets bereft of the advantage of spontaneity danger creeps in of the introduction of coloured version, exaggerated account or Signature concocted story as a result of deliberation and consultation. It is, therefore, essential that the delay in the lodging of the first information report should be satisfactorily explained...."
26. In Meharaj Singh &Ors. v. State of U. P. &Ors, (1994) 5 SCC 188 the Supreme Court has observed:
"12. ... The object of insisting upon prompt lodging of the FIR is to obtain the earliest information regarding the circumstance in which the crime was committed, including the names of the actual culprits and the parts played by them, the weapons, if any, used, as also the names of the eye witnesses, if any. Delay in lodging the FIR often results in embellishment, which is a creature of an afterthought. On account of delay, the FIR not only gets bereft of the advantage of spontaneity, danger also creeps in of the introduction of a coloured version or exaggerated story. With a view to determine whether the FIR, was lodged at the time it is alleged to have been recorded, the courts generally look for certain external checks. One of the checks is the receipt of the copy of the FIR, called a special report in a murder case, by the local Magistrate. If this report is received by the Magistrate late it can give rise to an inference that the FIR was not lodged at the time it is alleged to have been recorded, unless, of course the prosecution can SC No. 28891/2016 FIR No. 217/2012 State Vs. Mohd. Firasat & Ors. Page 17 of 21 offer a satisfactory explanation for the delay in dispatching or receipt of the copy of the FIR by the local Magistrate. Prosecution has led no evidence at all in this behalf. The second external check equally important is the sending of the copy of the FIR along with the dead body and its reference in the inquest report. Even though the inquest report, prepared under Section 174 Cr. P.C. is aimed at serving a statutory Signature function, to lend credence to the prosecution case, the details of the FIR and the gist of statements recorded during inquest proceedings get reflected in the report. The absence of those details is indicative of the fact that the prosecution story was still in embryo state and had not been given any shape and that the FIR came to be recorded later on after due deliberations and consultations and was then ante timed to give it the colour of a promptly lodged FIR..."
27. In Satpal Singh v. State of Haryana, (2010) 8 SCC 714 the Supreme Court has observed:
"15. This Court has consistently highlighted the reasons, objects and means of prompt lodging of FIR. Delay in lodging FIR more often than not, results in embellishment and exaggeration, which is a creature of an afterthought. A delayed report not only gets bereft of the advantage of spontaneity, the danger of the introduction of a coloured version, an exaggerated account of the incident or a concocted story as a result of deliberations and consultation, also creeps in, casting a serious doubt on its veracity. Thus, FIR is to be filed more promptly and if there is any delay, the prosecution must furnish a satisfactory explanation for the same of the reason that in case the substratum of the evidence given by the complainant/informant is found to be unreliable, the prosecution case has to be rejected in its entirety. [Vide: State of Andhra Pradesh v. M. Madhusudhan Rao (2008) 15 SCC 582]"
28. The Hon'ble Supreme Court in Kishan Singh Vs. Gurpal Singh, (2010) 8 SCC 775 with regard to the effect of delay in lodging FIR has held as under:
"22. In cases where there is a delay in lodging a FIR, the Court has to look for a plausible explanation for such delay. In absence of such an explanation, the delay may be fatal. The reason for quashing such proceedings may not be merely that the allegations were an after thought or had given a coloured version of events. In such cases the court should carefully examine the facts before it for the reason that a frustrated litigant who failed to succeed before the Civil Court may initiate criminal proceedings just to harass the other side with mala fide intentions or the ulterior motive of wreaking vengeance on the other party. Chagrined and SC No. 28891/2016 FIR No. 217/2012 State Vs. Mohd. Firasat & Ors. Page 18 of 21 frustrated litigants should not be permitted to give vent to their frustrations by cheaply invoking the jurisdiction of the criminal court. The court proceedings ought not to be permitted to degenerate into a weapon of harassment and persecution. In such a case, where an FIR is lodged clearly with a view to spite the other party because of a private and personal grudge and to enmesh the other party in long and arduous criminal proceedings, the court may take a view that it amounts to an abuse of the process of law in the facts and circumstances of the case. (vide :Chandrapal Singh &Ors. Vs. Maharaj Singh &Anr., AIR 1982 SC 1238; State of Haryana &Ors. Vs. Ch. Bhajan Lal &Ors., AIR 1992 SC 604; G. Sagar Suri &Anr. Vs. State of U.P. &Ors., AIR 2000 SC 754; and Gorige Pentaiah Vs. State of A.P. &Ors., (2008) 12 SCC 531).
29. In Jai Prakash Singh Vs. State of Bihar, (2012) 4 SCC 379, Hon'ble Supreme Court has held that extraordinary delay in lodging of FIR raises grave doubt regarding the truthfulness of allegations. The Hon'ble Court held as under:
"12. The FIR in a criminal case is a vital and valuable piece of evidence though may not be substantive piece of evidence. The object of insisting upon prompt lodging of the FIR in respect of the commission of an offence is to obtain early information regarding the circumstances in which the crime was committed, the names of actual culprits and the part played by them as well as the names of eye- witnesses present at the scene of occurrence. If there is a delay in lodging the FIR, it looses the advantage of spontaneity, danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of large number of consultations/deliberations. Undoubtedly, the promptness in lodging the FIR is an assurance regarding truth of the informant's version. A promptly lodged FIR reflects the first hand account of what has actually happened, and who was responsible for the offence in question."
30. Relying upon the judgment of Jai Prakash Singh (supra), in Manoj Kumar Sharma and others Vs. State of Chhattisgarh and another, (2016) 9 SCC 1, Hon'ble Supreme Court has held that delay in lodging FIR often results in embellishment, which is a creature of an afterthought and on account of delay, FIR not only gets bereft of advantage of spontaneity, danger of coloured version or exaggerated story being introduced in FIR, creeps in. It further held that extraordinary delay in lodging FIR raises grave doubt about the truthfulness of allegations made therein.
17. Other than this it is admitted as correct by PW-4 that no charpai SC No. 28891/2016 FIR No. 217/2012 State Vs. Mohd. Firasat & Ors. Page 19 of 21 paya or rod was recovered from the place of incident. It is matter of record that articles of offence are not recovered by the IO which are iron rod and danda. Public person were present whose statement were not recorded or which cannot be recorded only because of the fact that there was delay in lodging the complaint by the complainant. The nature of injuries were not such that the complainant could not have reached at the police station when the police station was 10 minutes walking distance away from the place of incident. Hence the complainant themselves had allowed the loss of material evidence and there is possibility that they themselves were aggressors which explain their conduct of the case in this manner.
18. In view of above, it is held that the prosecution has failed to prove that the accused have committed a wrongful act. The prosecution has also failed to prove intention or knowledge on the part of accused person to carry out a wrongful act as there is no proof on record that the accused person were aggressors and there is doubt to the fact that which among accused or complainant were aggressors in the case. The weapon of offence is also not recovered nor it is established in the deposition of PW-8 if the injuries, if any, suffered by the prosecution witness PW-3, PW-4 or PW-5 was due to being hit by an iron rod or wooden log/cot leg. Hence the prosecution has failed to prove on record any of the ingredients detailed above under Section 308 IPC. In view of which it cannot be said that accused person have committed the offence they are charged against with. Benefit of doubt is extended to all the accused person. Hence above accused are acquitted of the offence charged against them and it is held that prosecution has failed to prove the charge levelled against the accused person discussed above which are three in SC No. 28891/2016 FIR No. 217/2012 State Vs. Mohd. Firasat & Ors. Page 20 of 21 number. Accordingly, accused namely Mohd. Firasat, Riyasat Hussain and Faijan stands acquitted. Their earlier personal bond are cancelled and surety are discharged and documents, if any, be returned to the surety and endorsement on security documents is allowed to be de- endorsed. In terms of Section 437A Cr. PC, accused have furnished their bail bonds as directed which will be in force for period of six months from the date of this judgment. Case property be confiscated to the State.
File be consigned to Record Room.
Announced in the open Court Digitally signed by
on 05.12.2023. JOGINDER JOGINDER PRAKASH
PRAKASH NAHAR
Date: 2023.12.05
NAHAR 15:59:48 +0530
(JOGINDER PRAKASH NAHAR)
ADDITIONAL SESSIONS JUDGE (FTC-01)
CENTRAL/TIS HAZARI COURT
DELHI
SC No. 28891/2016
FIR No. 217/2012
State Vs. Mohd. Firasat & Ors. Page 21 of 21