Delhi District Court
State vs Shaikh Noor Islam on 27 September, 2024
IN THE COURT OF DR. RAKESH KUMAR
ADDITIONAL SESSIONS JUDGE (FTC-02), SOUTH EAST
SAKET COURT COMPLEX, NEW DELHI
CNR No: DLSE01-003289-2017
SC 190/2017
FIR no. 475/2013
Police Station: Jaitpur
State
Versus
1. Sheikh Noor Islam
Son of Sheikh Abu Tahir
2. Abdul Tajid
Son of Sheikh Abu Tahir
Both residents of A1-269, Madanpur Khadar,
JJ Colony, New Delhi.
Date of Institution : 22.12.2014
Judgment reserved on : 26.09.2024
Date of Decision : 27.09.2024
JUDGMENT
1. A police report was put up by the State through officer- in-charge of the police station Jaitpur before the concerned Metropolitan Magistrate with the view to take cognizance of offence under section 325 read with section 34 of the Indian Penal Code, 1860 (in short 'IPC') against the accused persons, FIR no. 475/2013 PS Jaitpur State v. Shaikh Noor Islam & Anr. Page 1 of 30 namely, Shaikh Noor Islam and Abdul Tajid for having committed the said offence and to proceed with committal of the case.
2. As per the police report, on 20.12.2013, this case FIR was registered at the police station Jaitpur for the offence under section 325 read with section 34 IPC against the accused persons, namely, Shaikh Noor Islam and Abdul Tajid.
3. As per the police report, further investigation in respect of MLC no.403369 of the injured Arun, was assigned to Sub- Inspector Prem Kumar as per the direction of Station House Officer and the Sub-Inspector Prem Kumar had kept DD No.54B pending. So, Head Constable Dharmender went to the house of the complainant Arun and asked him to come to the police station and give his statement; that on 20.12.2013, the complainant came to the police station and got his statement recorded.
4. As per the police report, it is, inter alia, stated by the complainant Arun Kumar that on 13.12.2013 at about 04:00 p.m., while he along with his cousin Goldy were sitting and smoking at the dam near his house, Abdul son of Abu Tahir who lives in the backside gali, came there and asked for cigarette, which was refused by the complainant, so Abdul threatened to see him and also started abusing the complainant and his cousin; that when started walking towards our house, he said that he would teach us a lesson and when we reached near our house, Abdul and his FIR no. 475/2013 PS Jaitpur State v. Shaikh Noor Islam & Anr. Page 2 of 30 brother Noor Islam came to our street and started abusing and thereafter, Noor Islam had caught hold the complainant from the back and Abdul had hit the complainant with rod on his left hand and in the meantime, father of the complainant and Goldy also came there, but the accused persons continued to hit the complainant, due to which he sustained several injuries and the PCR van took the complainant to Trauma Center, AIIMS, where he was treated.
5. It is further stated by the complainant that in this way, Abdul and his brother Noor Islam had beaten him, therefore, appropriate action, as per law, should be taken against the offenders.
6. It is further reported in the police report that from the statement of the complainant, perusal of MLC and result thereof being 'grievous by blunt object', the offence under section 325/34 IPC has been made out and therefore, a case under those sections was got registered and further investigation was taken up by Head Constable Dharmender.
7. It is further reported in the police report that during the course of investigation, Head Constable Dharmender had inspected the place of incident and prepared the site plan of the spot of the incident and statements under section 161 Cr.P.C. of the witnesses were recorded and the accused persons were searched for.
FIR no. 475/2013 PS Jaitpur State v. Shaikh Noor Islam & Anr. Page 3 of 308. It is further reported in the police report that on collection of sufficient evidence for having committed an offence under section 325/34 IPC, the accused Shaikh Noor Islam was arrested and his personal search was conducted vide personal search memo and his arrest memo was also prepared and his details were entered into the conviction slip and he was released on bail as the offence was bailable and the second accused was searched for. It is further reported in the police report that since Head Constable Dharmender was transferred from the police station, therefore, further investigation was assigned to Head Constable Abad Khan.
9. It is further reported in the police report that during investigation, Head Constable Abad Khan came to know that the accused Abdul was mentally unstable, therefore, he was not arrested in the present case.
10. It is further reported in the charge-sheet that the afore- said acts on the part of Shaikh Noor Islam and Abdul Tajid revealed commission of offence punishable under section 325/34 of Indian Penal Code, 1860. It is, therefore, prayed that cognizance of the offence committed by Shaikh Noor Islam and Abdul Tajid may be taken and they should be tried as per the provisions of law.
FIR no. 475/2013 PS Jaitpur State v. Shaikh Noor Islam & Anr. Page 4 of 3011. After completion of the investigation, the investigating officer had filed the charge-sheet before the concerned Metropolitan Magistrate.
12. On the police report, on 22.12.2014, the learned Metropolitan Magistrate had taken the cognizance of the offence.
13. On the date of taking cognizance, the accused Shaikh Noor Islam was on police bail and the accused Abdul Tajid was not arrested during investigation, therefore, the Court issued process to both the accused persons for their appearance. Copies of police report and other documents in compliance of section 207 Cr.P.C. were supplied to the accused persons on 04.11.2016.
14. On 04.11.2016, upon considering the police report and the documents sent with it under section 173 Cr.P.C. and after hearing the Assistant Public Prosecutor and counsel for the accused persons, the charge was framed against the accused persons for their having committed offence punishable under section 325/34, the Indian Penal Code by the learned Metropolitan Magistrate.
15. The charge was read over and explained to the accused persons and they were asked if they pleaded guilty of the offence charged or claimed to be tried. The accused persons did not plead guilty and claimed trial.
FIR no. 475/2013 PS Jaitpur State v. Shaikh Noor Islam & Anr. Page 5 of 3016. On 20.03.2017, the learned Sessions Judge, keeping in view the submissions made by the learned Chief Public Prosecutor for the State and the accused persons to the effect that the present FIR and the FIR no.466/2013 under section 308/323/341/34 IPC titled as "State v. Arun & Ors." pending in the Court of Sh. Gulshan Kumar, learned ASJ, South-East, Saket Court, Delhi were the cross-cases, passed the following order:
"It would be expedient that in the interest of justice if the two cross-cases are tried by the same court to avoid conflict in judgment.
In these circumstances, the case being FIR no.475/13, under section 340/34 IPC, PS Jaitpur, titled as State v. Abdul Ors., is withdrawn from the Court of Sh. Sudhir Kumar Sirohi, Ld. MM, South-East, Saket Courts, New Delhi, and transferred to the Court of Sh. Gulshan Kumar, Ld. ASJ-03, South-East, Saket Court, New Delhi."
17. In view of the above order of the learned District & Sessions Judge, South-East, the present case was transferred from the Court of learned Metropolitan Magistrate to the Court of Session, where the cross-case was pending.
18. In support of its case, the prosecution got examined PW1 Arun (complainant/injured), PW2 Sub-Inspector Laxman Prasad, PW3 Goldy (cousin of the complainant), PW4 Naresh (father of the complainant), PW5 Assistant Sub-Inspector Abad Khan, PW6 Head Constable Mam Chand, PW7 Dr. Nidhi Jarodia, PW8 Sub-Inspector Dharmender and PW9 Sub-Inspector Prem Kumar. During the examination of the prosecution witnesses, the documents Ex.PW1/A, Ex.PW2/A, Ex.PW2/B, FIR no. 475/2013 PS Jaitpur State v. Shaikh Noor Islam & Anr. Page 6 of 30 Ex.PW6/A, Ex.PW6/B, Ex.PW7/A, Ex.PW8/A, Ex.PW9/A and Ex.PW9/B were also tendered in evidence.
19. On 21.07.2023, prosecution evidence was closed and matter was posted for examination of the accused persons under section 313 Cr.P.C and for recording their statements.
20. On 16.11.2023, this Court examined the accused persons under Section 313 Cr.P.C. and their separate statements were recorded. During their examination under section 313 of Cr.P.C., the accused persons denied the correctness of incriminating circumstances appearing in the evidence against them. During their examination under section 313 of Cr.P.C., the accused persons took the defence that they are innocent. It is commonly stated by the accused persons as follows:
"In fact, Arun had beaten me at 03:30 p.m. on the same day and I went to my brother Shaikh Noor Islam while bleeding profously. When he along with me went to the house of Arun to make a complaint about the incident to his father then Arun along with his cousin Goldy, his brother Deepu and his father Naresh, all of them had given us beatings and also got us implicated in this false case. Even our MLCs were also prepared at the hospital."
21. The accused Abdul Tajid did not express his desire to lead evidence in his defence. The accused Sheikh Noor Islam had expressed his desire to lead evidence in his defence, however, FIR no. 475/2013 PS Jaitpur State v. Shaikh Noor Islam & Anr. Page 7 of 30 even after taking several adjournments did not examine any witness and closed his defence evidence.
22. I have heard Mr. Narender Yadav, Additional Public Prosecutor for the State and Mr. Shiva Jee Shukla, Legal Aid Counsel for the accused persons and have gone through the record of the case carefully.
23. Having drawn my attention on the testimonies of PW1 Arun, PW2 Sub-Inspector Laxman Prasad, PW3 Goldy, PW4 Naresh, PW5 Assistant Sub-Inspector Abad Khan, PW6 Head Constable Mam Chand, PW7 Dr. Nidhi Jarodia, PW8 Sub- Inspector Dharmender and PW9 Sub-Inspector Prem Kumar; and the documents Ex.PW1/A, Ex.PW2/A, Ex.PW2/B, Ex.PW6/A, Ex.PW6/B, Ex.PW7/A, Ex.PW8/A, Ex.PW9/A and Ex.PW9/B.
24. Learned Additional Public Prosecutor for the State has submitted that the complainant Arun was injured and there were two cross-cases. It is further submitted by the learned Additional Public Prosecutor for the State that PW3 Goldy is an eyewitness to the incident and PW4 Naresh is father of the injured and they have corroborated the testimonies of PW1 Arun. It is further submitted by the learned Additional Public Prosecutor for the State that as per the testimonies of Dr. Nidhi, the injuries to the person of the complainant were found to be grievous. It is further submitted by the learned Additional Public Prosecutor for the State that weapon of the offence i.e. rod was not recovered. It is FIR no. 475/2013 PS Jaitpur State v. Shaikh Noor Islam & Anr. Page 8 of 30 further submitted by the learned Additional Public Prosecutor for the State that the incident happened on 13.12.2013 and DD entry regarding the incident and the MLC were also prepared on the same date, however, the FIR was registered on 20.12.2013.
25. Per contra, counsel for the accused has drawn my attention on the testimonies of PW1 Arun, PW2 Sub-Inspector Laxman Prasad, PW3 Goldy, PW4 Naresh, PW5 Assistant Sub- Inspector Abad Khan, PW6 Head Constable Mam Chand, PW7 Dr. Nidhi Jarodia, PW8 Sub-Inspector Dharmender and PW9 Sub-Inspector Prem Kumar; and the documents Ex.PW1/A, Ex.PW2/A, Ex.PW2/B, Ex.PW6/A, Ex.PW6/B, Ex.PW7/A, Ex.PW8/A, Ex.PW9/A and Ex.PW9/B and submitted that the case of the prosecution is full of contradictions as PW1 injured has stated that when they reached their house, the accused persons came there and assaulted them, however, PW3 Goldy who was accompanying the complainant, deposed that they were chased by the accused persons. Learned counsel for the accused persons has drawn my attention towards testimonies of PW7 Dr. Nidhi Jarodia and submitted that during her cross-examination, she had stated that possibility of injury no.2 being caused by falling on the ground cannot be ruled out. Learned counsel for the accused persons further submitted that the injuries are inflicted by an iron-rod, it should have been blunt and not as stated in the MLC. Learned counsel for the accused persons has drawn my attention towards testimonies made during cross- examination of PW4 Naresh to argue that father of the FIR no. 475/2013 PS Jaitpur State v. Shaikh Noor Islam & Anr. Page 9 of 30 complainant who claims to be an eyewitness to the incident, did not even know the place of the incident. Learned counsel for the accused persons further submitted that benefit of doubt should go to the accused persons.
26. I have given my thoughtful consideration to the submissions made on behalf of the parties.
27. The accused persons have been charged for the offence punishable under sections 325/34 I.P.C. Section 325 reads as follows:
"325. Voluntarily causing grievous hurt.-Whoever, except in the case provided for by section 335, voluntarily causes grievous hurt, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
"34. Acts done by several persons in furtherance of common intention.--When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone."
28. The facts of the case have already been noticed earlier, here, I would like to only focus on the evidence that has been adduced by the prosecution.
29. To bring home the guilt of the accused persons, the prosecution had examined nine witnesses.
FIR no. 475/2013 PS Jaitpur State v. Shaikh Noor Islam & Anr. Page 10 of 3030. PW1 Arun during his examination-in-chief has deposed that he works as tent vendor and do not remember the date and month of the incident, however, in the year of 2013 at about 04:00 p.m., when he along with his cousin Goldy was consuming cigarette at pusta, Abdul came there and asked him to give him a cigarette but he refused to give Abdul cigarette and on this Abdul said to him that he will see him and abused him. PW1 Arun further deposed that thereafter, he along with his cousin brother Goldy started to go towards their house and when they reached their house, said accused Abdul came there along with his brother, whose name might be Noor Islam. PW1 Arun further deposed that brother of Abdul caught hold him from his behind and Abdul hit him by the rod. PW1 Arun further deposed that in the meantime, his father also came at the spot but said both persons still gave him beatings and he sustained injury. PW1 Arun further deposed that after sometime, PCR van came at the spot and police took him to the hospital. PW1 Arun further deposed that police official recorded his statement vide memo Ex.PW-1/A bearing his signature at point A. PW1 Arun correctly identified both accused persons in the Court.
31. PW2 Sub-Inspector (then Assistant Sub-Inspector) Laxman Prasad has deposed that on 20.12.2013, his duty hours were from 04:00 p.m. to 12:00 night as Duty Officer and on that day, Head Constable Dharmender produced a rukka to him at about 05:10 p.m. PW2 Sub-Inspector Laxman Prasad further deposed that he made endorsement on the said rukka FIR no. 475/2013 PS Jaitpur State v. Shaikh Noor Islam & Anr. Page 11 of 30 (Ex.PW2/A) at point-A and handed over same to the computer operator for recording of FIR. PW2 Sub-Inspector Laxman Prasad further deposed that the computer operator recorded FIR on the basis of said rukka and copy of computerized FIR (Ex.PW2/B) bearing his signature at point-A (OSR). PW2 Sub- Inspector Laxman Prasad further deposed that after registration of FIR, he handed over computerized FIR and rukka to Ct. Kuldeep for delivering the same to the IO.
32. PW3 Goldy has deposed that on 13.12.2013 at around 04:00 p.m, he along with his cousin brother Arun were sitting at NTPC Dam and Arun was smoking, when accused Abdul came there and asked for cigarette, but he was denied and on this issue, accused Abdul started altercation with Arun and started hurling abuses. PW3 Goldy further deposed that they started going to their home, but Abdul started chasing them and threatened them and when they reached their home, accused Arun along with his brother namely Noor Islam came and started altercation with them. PW3 Goldy further deposed that when they objected, accused Noor Islam caught hold Arun and accused Abdul started beating him. PW3 Goldy further deposed that Arun was assaulted and he sustained injuries on head and left hand. PW3 Goldy further deposed that he and his uncle namely Naresh had rescued Arun and both the accused persons ran away from the spot. PW3 Goldy further deposed that they called at 100 number and the PCR came at the spot and took Arun to Trauma Centre. PW3 FIR no. 475/2013 PS Jaitpur State v. Shaikh Noor Islam & Anr. Page 12 of 30 Goldy correctly identified the accused persons Abdul and Noor Islam in the Court.
33. PW4 Naresh has deposed that on 13.12.2013 at around 04:00 p.m., he was present in his house and he heard some noise from outside and went outside his house and saw that both the accused persons were beating his son Arun. PW4 Naresh further deposed that one accused had caught hold his son and the other was beating him by some object. PW4 Naresh further deposed that his son sustained injuries on his left hand and head. PW4 Naresh further deposed that the PCR van came at the spot and took his son to the Trauma Centre. PW4 Naresh correctly identified the accused persons in the Court.
34. PW5 Assistant Sub-Inspector (then Head Constable) Abad Khan has deposed that on 15.08.2014, further investigation of this case was marked to him. PW5 Assistant Sub-Inspector Abad Khan further deposed that during the course of investigation, he examined two eye witnesses namely Goldy and Naresh Kumar and their statements were recorded u/sec.161 Cr.P.C. PW5 Assistant Sub-Inspector Abad Khan further deposed that accused Sheikh Abdul was charge sheet without arrest as he (Sheikh Abdul) was mentally ill and the witness had verified about the said fact and place medical records of accused Sheikh Abdul on judicial record. PW5 Assistant Sub-Inspector Abad Khan further deposed that after completion of investigation, he filed the charge-sheet in the Court. PW5 Assistant Sub-Inspector FIR no. 475/2013 PS Jaitpur State v. Shaikh Noor Islam & Anr. Page 13 of 30 Abad Khan correctly identified the accused Sheikh Abdul in the Court.
35. PW6 Head Constable (then Constable) Mam Chand has deposed that deposed that on 31.12.2013, he joined the investigation with IO HC Dharmender and went to the house i.e. A-1/269, JJ Colony, Madan Pur Khadar, where accused Sheikh Noor Islam was arrested vide arrest memo Ex.PW6/A bearing his signature at point A. PW6 Head Constable Mam Chand further deposed that disclosure statement of accused Sheikh Noor Islam was recorded vide Ex.PW6/B bearing his signature at point A. PW6 Head Constable Mam Chand further deposed that accused Sheikh Noor Islam was released on police bail as offence was bailable. PW6 Head Constable Mam Chand further deposed that IO recorded his statement to the abovesaid effect. PW6 Head Constable Mam Chand correctly identified accused Sheikh Abdul in the court. During his cross-examination, PW6 Head Constable Mam Chand has deposed that no neigbour has been joined in the investigation during the arrest of the accused.
36. PW7 Dr. Nidhi Jarodia during her examination-in-chief deposed that on 13.12.2013 she was posted as Junior Resident at JPN, Apex Trauma Centre, New Delhi and on that day she had examined patient Arun, aged 18 years vide MLC No.403369. PW7 Dr. Nidhi Jarodia further deposed that the patient came with the alleged history of assault, history of loss of consciousness present and he was having visible injuries. (1) Laaceration 1. x FIR no. 475/2013 PS Jaitpur State v. Shaikh Noor Islam & Anr. Page 14 of 30 05 CM over forehead; (2) swelling over left hand. PW7 Dr. Nidhi Jarodia further deposed that the MLC (Ex.PW7/A) prepared by her bears her signature at point A and she had given her opinion as to the nature of injuries as "grievous" on 18.12.2013 after seeing the reports, which bears his signature at point B on the aforesaid MLC.
37. PW8 Sub-Inspector Dharmender (then Head Constable) has deposed that on 20.12.2013, he was present in the police station, when Sub-Inspector Prem Kumar had handed over him the copy of MLC of injured Arun Kumar which was kept pending by him since 13.12.2013. PW8 Sub-Inspector Dharmender further deposed that thereafter, investigation of the present case was marked to him by SHO. PW8 Sub-Inspector Dharmender further deposed that he went to the house of complainant to record his statement, however, the complainant had not given his statement and told him that he would give his statement in the police station and in the evening, the complainant had come to the police station and he had given his statement (Ex.PW1/A) bearing his signature at Point 'B'. PW8 Sub-Inspector Dharmender further deposed that he endorsed the same and prepared the rukka (Ex.PW8/A) bearing his signature at Point 'A' and got the present case registered through DO. PW8 Sub- Inspector Dharmender further deposed that thereafter, he along with the complainant had gone to the spot i.e. near house no. A1/235, J.J Colony, Madanpur Khadar, and prepared the site plan (Ex.PW8/B) at his instance, bearing his signature at Point 'A' and FIR no. 475/2013 PS Jaitpur State v. Shaikh Noor Islam & Anr. Page 15 of 30 had gone to the house of accused Shaikh Noor Islam at A1/279, J.J. Colony, Madanpur Khadar for search of accused but could not be found present there and they came back to the police station. PW8 Sub-Inspector Dharmender further deposed that on 31.12.2013, he along with Ct. Mamchand had gone to the house of accused and apprehended accused Shaikh Noor Islam and after interrogation, he was arrested vide arrest memo (Ex.PW6/A) bearing his signature at Point 'B' and his disclosure statement (Ex.PW6/B) was recorded by him (PW8) bearing his signature at Point 'B' and released the accused on bail. PW8 Sub-Inspector Dharmender further deposed that during investigation, he had tried to find the weapon of offence but could not find. PW8 Sub- Inspector Dharmender further deposed that he had recorded the statement of witnesses under section 161 Cr.P.C. and thereafter, he was transferred and handed over the present case file to MHC(R). PW8 Sub-Inspector Dharmender correctly identified the accused in the court.
38. PW9 Sub-Inspector Prem Kumar has deposed that on 13.12.2020, he was on emergency duty from 08:00 a.m. to 08:00 p.m. and on that day, he received a PCR call regarding quarrel at House No. A1-235, J.J. Colony Madanpur Khadar. PW9 Sub- Inspector Prem Kumar further deposed that he along with one Constable had gone to the spot, where it was revealed that all the injured were taken to AIIMS Trauma Center in PCR. PW9 Sub- Inspector Prem Kumar further deposed that in the meanwhile, he had received DD No.33B Ex.PW9/A regarding MLCs of injured FIR no. 475/2013 PS Jaitpur State v. Shaikh Noor Islam & Anr. Page 16 of 30 Arun, Noor Islam and Abdul. PW9 Sub-Inspector Prem Kumar further deposed that thereafter, they had gone to the hospital and collected the MLC. PW9 Sub-Inspector Prem Kumar further deposed that he had asked the injured persons to give their statements, however, they refused to give him statement and told that they would record their statement later on. PW9 Sub- Inspector Prem Kumar further deposed that thereafter, he kept PCR call pending vide DD No. 54B (Ex.PW9/B). PW9 Sub- Inspector Prem Kumar further deposed that on the next day, he had recorded the statement of Noor Islam. PW9 Sub-Inspector Prem Kumar further deposed that on 20.12.2013, he got results of MLC of injured Arun and found it grievous in nature and caused by blunt object. PW9 Sub-Inspector Prem Kumar further deposed that he had handed over copy of the MLC and the other documents to the IO HC Dharmender.
39. In the light of the charge framed against the accused persons and the arguments advanced before the Court, following are the points for determination:
a) Whether the accused persons have voluntarily caused grievous injury to the person of the complainant Arun.
b) Whether the accused persons have acted in furtherance of common intention.FIR no. 475/2013 PS Jaitpur State v. Shaikh Noor Islam & Anr. Page 17 of 30
DISCUSSION ON THE POINTS FOR DETERMINATION
40. On these points, to prove the commission of offence, the testimonies of PW1 Arun, PW3 Goldy and PW4 Naresh are relevant.
41. The present case FIR no.475/2013, police station Jaitpur, New Delhi was registered on the statement of one Arun.
42. The prosecution has examined Arun as PW1. The prosecution has also examined his cousin Goldy as PW3 and his father as PW4.
43. It is important to note here that the accused persons in the present case have also got registered cross-FIR in the police station Jaitpur, New Delhi against the complainant side of this case. So, both these cases FIRs were cross-cases got registered by the parties against each other over the same incident.
44. The Hon'ble Supreme Court in Nathilal v. State of U.P., 1990 (Supp.) SCC 145, pointed out the procedure to be followed by the Trial Court in the event of cross cases. It was observed thus:-
"We think that the fair procedure to adopt in a matter like the present where there are cross cases, is to direct that the same learned Judge must try both the cross cases one after the other. After the recording of evidence in one case is completed, he must hear the arguments but he must FIR no. 475/2013 PS Jaitpur State v. Shaikh Noor Islam & Anr. Page 18 of 30 reserve the judgment. Thereafter he must proceed to hear the cross case and after recording all the evidence he must hear the arguments but reserve the judgment in that case. The same learned Judge must thereafter dispose of the matters by two separate judgments. In deciding each of the cases, he can rely only on the evidence recorded in that particular case. The evidence recorded in the cross case cannot be looked into. Nor can the judge be influenced by whatever is argued in the cross case. Each case must be decided on the basis of the evidence which has been placed on record in that particular case without being influenced in any manner by the evidence or arguments urged in the cross case. But both the judgments must be pronounced by the same learned Judge one after the other."
45. The Hon'ble Supreme Court in State of M.P. v. Mishrilal (Dead) & Ors. AIR 2003 SC 4089, while giving guidance as to the procedure to be adopted in such cases has observed as follows:-
"It would have been just fair and proper to decide both the cases together by the same court in view of the guidelines devised by this Court in Nathilal's case (supra). The cross- cases should be tried together by the same court irrespective of the nature of the offence involved. The rational behind this is to avoid the conflicting judgments over the same incident because if cross cases are allowed to be tried by two courts separately there is likelihood of conflicting judgments."
46. The present case FIR was investigated by PW9 Sub- Inspector Prem Kumar, PW8 Sub-Inspector (then Head Constable) Dharmender being first investigating officer, PW5 Assistant Sub-Inspector Abad Khan, second investigating officer.
FIR no. 475/2013 PS Jaitpur State v. Shaikh Noor Islam & Anr. Page 19 of 3047. As per the testimonies of PW9 Sub-Inspector Prem Kumar, on receiving of PCR call regarding quarrel, he had gone to the spot and come to know that all the injured had been taken to the Trauma Center, AIIMS in PCR and in the meantime, he received another DD no.33B (Ex.PW9/A) regarding MLCs of the injured Arun, Noor Islam and Abdul and thereafter, he had gone to the hospital and collected the MLCs and asked the injured persons to give their statements, however, they had refused to give their statements and told that they would give their statements later on. Therefore, the PCR call vide DD no.54B (Ex.PW9/B) was kept pending.
48. From the testimonies of PW9 Sub-Inspector Prem Kumar, it is quite clear that when he had gone to the Trauma Center, AIIMS, he had found three injured persons, namely, Arun (complainant/injured in the present case) and Noor Islam and Abdul (the accused persons).
49. As per the testimonies of PW9 Sub-Inspector Prem Kumar, he had recorded statements of Noor Islam on the next day of incident, however, statement of the complainant Arun of the present case was recorded on 20.12.2013.
50. As per the testimonies of PW8 Sub-Inspector Dharmender, on 20.12.2013, copy of MLC of the injured Arun Kumar which was kept pending by Sub-Inspector Prem Kumar, was handed over to him and on assigning of investigation of the FIR no. 475/2013 PS Jaitpur State v. Shaikh Noor Islam & Anr. Page 20 of 30 present case to him by the Station House Officer, he had gone to the house of the complainant to record his statement and in the evening, the complainant came to the police statement, made his statement, on the basis of which the present case FIR was registered and thereafter, PW8 Sub-Inspector Dharmender along with the complainant went to the spot and prepared the site plan. However, it is not clear from the testimonies of PW8 Sub- Inspector Dharmender that both the cases, the present one and the cross-case were investigated by the same investigating officer i.e. Sub-Inspector Dharmender.
51. PW5 Assistant Sub-Inspector Abad Khan is the second investigating officer of the present case, who had prepared the charge-sheet and filed it in the Court. However, from the testimonies of PW5 Assistant Sub-Inspector Abad Khan also, it is not clear that the present case and the cross-case were investigated by the same investigating officer. The testimonies made by PW5 Assistant Sub-Inspector Abad Khan during his cross-examination are relevant to be reproduced as follows:
"..... I did not inquire in respect of whether any neighbour was present on the day of incident who see the incident. I came to know that there was cross FIRs between complainant and accused persons. I have not referred to the cross FIR in the charge sheet. It is wrong to suggest that I had not investigated the matter fairly and filed the charge- sheet in mechanical manner without application of my mind to find out the truth. ....."FIR no. 475/2013 PS Jaitpur State v. Shaikh Noor Islam & Anr. Page 21 of 30
52. It is in the evidence of PW8 Sub-Inspector Dharmender, 1st investigating officer of this case that on 20.12.2013, MLC of the injured Arun which was kept pending by Sub-Inspector Prem Kumar since 13.12.2013 was assigned to him for investigation.
53. It is important to note here that the call regarding quarrel was assigned to Sub-Inspector Prem Kumar for investigation. It is in the evidence of Sub-Inspector Prem Kumar (PW9) that on receiving of PCR call regarding quarrel and DD no.33B (Ex.PW9/A) regarding MLCs of the injured, he had gone to Trauma Center, AIIMS and met the injured persons Arun, Noor Islam and Abdul and he asked the injured persons to give statement, however, the injured persons refused to give statements and told that they would give their statements later.
54. On the next day of incident, Sub-Inspector Prem Kumar went to the house of injured Abdul and recorded his statement, on the basis of which the cross FIR no.466/13, police station Jaitpur was recorded against Arun (the complainant in the present case), his cousin Goldy and his father Naresh. The said case FIR no.466/13 i.e. the cross-case of the present case has been decided by this Court vide judgment dated 17.08.2023. A perusal of record of case FIR no.466/13 would reveal that investigation of that case was taken up by Sub-Inspector Prem Kumar and after his transfer, the charge-sheet was prepared and filed in the Court by Sub-Inspector Nikesh Kumar. Whereas, the present case FIR FIR no. 475/2013 PS Jaitpur State v. Shaikh Noor Islam & Anr. Page 22 of 30 no.475/2013 was assigned to Head Constable Dharmender and the charge-sheet was filed by Assistant Sub-Inspector Abad Khan. From the above, it is quite clear that both the cases FIR no.466/2013 (the cross-case) and FIR No.475/2013 (the present case) were not investigated by the same investigating officer.
55. The Hon'ble Supreme Supreme Court has emphasised that in cross-cases investigation should be conducted by one and the same investigating officer. In State of M.P. v. Mishrilal (Dead) & Ors. (supra), the Hon'ble Supreme Court has emphasized this point and observed thus:-
"In the instant case, the investigating officer submitted the challan against both the parties. Both the complaints cannot be said to be right. Either of them must be false. In such a situation, legal obligation is cast upon the investigating officer to make an endeavour to find out the truth and to cull out the truth from the falsehood. Unfortunately, the investigating officer has failed to discharge the obligation, resulting in grave miscarriage of justice."
56. In the light of guidelines laid down by the Hon'ble Supreme Court regarding the procedure to be adopted for investigation of cross-cases, the investigation of the cross-cases should have been conducted by the same investigating officer as both the complainants cannot be said to be right and either of them must be false. Therefore, a legal obligation was cast upon the police officials to make an endeavor to find out the truth and cull out the truth from falsehood. But, unfortunately, it was not done and the Station House Officer of the police station FIR no. 475/2013 PS Jaitpur State v. Shaikh Noor Islam & Anr. Page 23 of 30 concerned assigned the investigation of the cross-cases to different investigating officers, who had conducted the investigation independently in both the cases and filed the charge-sheet showing the accused persons in both the cases to be the aggressors, but it cannot be true that both the parties were the attackers.
57. There is another disturbing feature in the case of the prosecution's story. It is in the evidence of PW9 Sub-Inspector Prem Kumar that when on receiving of DD regarding MLCs he had gone to Trauma Center, AIIMS, but the injured persons had not given their statement to the police on that day. As noted above, the complainant in the cross-case has given their statement on the next day to the incident, however, the complainant in the present case only got his statement recorded for registration of case on 20.12.2013. There is no explanation on behalf of the complainant why he had not gone to the police station or given his statement for registration of FIR during the period of about one week and he had given statement after registration of cross-FIR by the accused persons of the present case against the complainant Arun, his cousin Goldy and his father Naresh. Therefore, a serious shadow is cast upon the story of the prosecution.
58. Further, at the cost of repeation, the common explanation tendered by both the accused persons is reproduced as follows:
FIR no. 475/2013 PS Jaitpur State v. Shaikh Noor Islam & Anr. Page 24 of 30"In fact, Arun had beaten me at 03:30 p.m. on the same day and I went to my brother Shaikh Noor Islam while bleeding profously. When he along with me went to the house of Arun to make a complaint about the incident to his father then Arun along with his cousin Goldy, his brother Deepu and his father Naresh, all of them had given us beatings and also got us implicated in this false case. Even our MLCs were also prepared at the hospital."
59. 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 v. State of Bihar, (1976) 4 SCC 394, referring to earlier 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:
(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;
(ii) 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;
(ii) 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 FIR no. 475/2013 PS Jaitpur State v. Shaikh Noor Islam & Anr. Page 25 of 30 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 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."
60. There is no explanation by the investigating officer about the injuries sustained by the two accused persons. PW9 Sub-Inspector Prem Kumar had also met the accused persons of the present case to be in injured condition at Trauma Center, AIIMS. However, none of the prosecution witnesses have explained the injuries sustained by the accused persons. It is also not the case of the investigating officer that the injuries sustained FIR no. 475/2013 PS Jaitpur State v. Shaikh Noor Islam & Anr. Page 26 of 30 by the accused persons were so simple and superficial. Therefore, I am of the considered view that the prosecution has not presented the true version on most material part of the story and due to non-explanation of injuries sustained by the accused persons, they are entitled to the benefit of doubt.
61. At the cost of repeatition, it is reiterated that the investigation of both the cases should have been conducted by the same investigating officer and the injuries sustained by the accused persons should also have been explained, but it is not done so in these cases and the true account about the incident was not put up by the prosecution in the charge-sheet. The accused persons in their statement under section 313 Cr.P.C. have categorically took the defence that they are innocent and in fact, Arun (the complainant herein) had beaten Abdul Tajid at 03:30 p.m. and he had gone to his brother Shaikh Noor Islam while bleeding profusely and when they had gone to the house of Arun to make complaint about the incident to his father, then Arun along with his cousin Goldy, brother Deepu and father Naresh had given them beatings and also got them implicated in this false case. As noted above, the statement of the complainant Arun was recorded after seven days of the incident, so the explanation given by the accused persons seems to be quite probable.
FIR no. 475/2013 PS Jaitpur State v. Shaikh Noor Islam & Anr. Page 27 of 3062. There are also some contradictions in the evidence led by the prosecution. In the examination-in-chief, PW1 Arun has stated as follows:
"..... Thereafter, I along with my cousin brother Goldy started to go towards our house. When we reached our house, said accused Abdul came there along with his brother his name was might be Noor Islam. Brother of Abdul caught hold me from my behind and Abdul hit me by the rod. ....."
63. However, PW3 Goldy, cousin of the complainant has stated in his examination-in-chief that the accused Abdul had chased Arun and Goldy. Statement of PW3 Goldy is reproduced as under:
"..... We started going to our home, but Abdul started chasing us and threatened us. We reached at our home and accused Arun alongwith his brother namely Noor Islam who is present in the Court today (correctly identified by the witness) came and started altercation with us. ....."
64. Therefore, there is contradiction in the statement of PW1 Arun and PW3 Goldy as PW1 Arun has stated that when he along with his cousin reached their house, the accused Abdul came there, however, PW3 Goldy has stated that they were chased by the accused Abdul. It is also very strange on part of the accused Abdul alone to chase two persons to their home and started beating them near their house.
FIR no. 475/2013 PS Jaitpur State v. Shaikh Noor Islam & Anr. Page 28 of 3065. The statement made by PW4 Naresh, father of the complainant, during his cross-examination are reproduced as follows:
"..... My immediate neighbours are Mr. Ram Pher, Mr. Yadav Ji etc. I had not called any neighbour at the time of quarrel. (Vol. They had gathered on their own after seeing the quarrel. I did not even know the place of incident. .....
..... It is wrong to suggest that in fact, the accused persons have been beaten by us or just to evade from the punishment, we roped the accused persons in the present false FIR in collusion with police. ....."
66. As per the testimonies of PW4 Naresh, his neighbours had gathered after seeing the quarrel, but no neighbour was examined by the prosecution to prove the assault on the complainant. In cross-cases, it was the duty of the investigating officer to bring independent witnesses to produce the truth before the Court, but it is not done so. Moreover, PW4 Naresh has in his cross-examination deposed that he had even not known the place of incident. So, his testimonies seems to be not reliable and trustworthy and he is an interested witness.
67. Further, as per the testimonies of PW5 ASI Abad Khan, the investigating officer, in his cross-examination, he had not inquired if any neighbour was present on the day of incident who had witnessed the incident. However, it is in the evidence of PW4 Naresh, father of the complainant, that his neighbours had gathered at the time of incident. The investigating officer should have inquired from and joined the neighbours of the complainant FIR no. 475/2013 PS Jaitpur State v. Shaikh Noor Islam & Anr. Page 29 of 30 to find out the truth and to cull out truth from falsehood, but it is not so done by the investigating officer and I may hold that the true facts were not brought to this Court.
68. Furthermore, as per the testimonies of PW7 Dr. Nidhi Jarodia, the possibility of injury no.2 being caused by falling on the ground cannot be ruled out.
69. To sum up, in view of above discussion, the prosecution has failed to prove beyond all reasonable doubt the charge under section 325 read with section 34 of the Indian Penal Code against the accused persons, namely, Shaikh Noor Islam and Abdul Tajid, so, giving benefit of doubt to the accused persons, namely, Shaikh Noor Islam and Abdul Tajid, they are acquitted of offence punishable under sections 325 read with section 34 of the Indian Digitally signed Penal Code, 1860. DR by DR RAKESH RAKESH KUMAR Date: 2024.09.27 KUMAR 16:44:03 +0530 Pronounced in the open Court (DR. RAKESH KUMAR) th on 27 of September, 2024. Additional Sessions Judge, (FTC)-02, South District, Saket Courts, New Delhi(vr) FIR no. 475/2013 PS Jaitpur State v. Shaikh Noor Islam & Anr. Page 30 of 30