Delhi District Court
State vs Rizwan - Sc No. 12/2012 1/9 on 31 October, 2014
ID No.02406R0307772012
IN THE COURT OF ADDITIONAL SESSIONS JUDGE - 04
& SPECIAL JUDGE (NDPS) SOUTH EAST: SAKET COURTS: DELHI
Sessions Case No. 12/2012
ID No.02406R0307772012
FIR No. 225/2012
U/s. 307/341/506 IPC
PS : Jaitpur
State
VERSUS
Rizwan, ..........Accused
s/o Mohd. Anwar,
r/o H. No. 207, Block-H,
Jaitpur, New Delhi
Instituted on : 20th December 2012
Argued concluded on : 18th October 2014
Decided on : 29th October 2014
JUDGMENT
1. In brief, case of that prosecution is that on receipt of DD No.45-A recorded at 11:14 pm on 11th July 2012 regarding "stabbing a person at 33 futa Road, Ghadda Colony, Jaitpur", SI Manoj Kumar and Ct. Shailesh reached at the place of occurrence. On inquiry ,no eye witness was found and it was revealed that injured had been shifted to Hospital in a PCR Van. SI Manoj and Ct. Shailesh reached AIIMS Trauma Hospital. They collected MLC of injured Shiraj Ahmed s/o Sh. Abdul Ahmad. On which Doctor remarked 'pending investigation'. Since injured was under treatment, therefore his statement could not be recorded. On 12th July 2012, SI Manoj recorded statement of Siraj Ahmed, in his statement Siraj Ahmed stated that he was working as Raj Mistri. At 10:20 pm on 11th July 2012, he had gone to bring juice for his children on his motorcycle at Ghadda Colony Market. After obtaining juice, he was returning back, at about 10:30 pm, when he reached near Sharma Medical Store, one boy namely Rizwan, who was residing in his neighbourhood stopped him. He started abusing him and threatened to kill him. He picked up a sharp edged thing and inflicted injury on his State vs Rizwan - SC No. 12/2012 1/9 ID No.02406R0307772012 back and thereafter ran away. A stranger informed the police and PCR Van took away injured Siraj Ahmed to Trauma Center and after his medical examination, he came to the Police Station. SI Manoj Kumar found that an offence punishable u/s 323/341/506 IPC was committed. FIR was registered. During investigation, SI Manoj Kumar made efforts to trace accused Rizwan, but he could not be traced. On 18 th July 2012, complainant Siraj Ahmed again came to the Police Station and made a supplementary statement. Thereafter, offence u/s 307 IPC was added and statement of Yamin s/o Kitab Ali, who claimed to be an eye-witness was recorded. During investigation, it was revealed that Rizwan was in custody in Dasna Jail, Ghaziabad in case FIR No. 382/2012 u/s 356/379/34 IPC, Police Station Sector-24 Noida (UP). After his production, he was arrested in this case and his disclosure statement was recorded. It is alleged that during police custody, accused Rizwan got recovered a rusted blood stained knife allegedly used in the offence. Clothes were sent to the FSL and on conclusion of investigation, charge sheet was filed in the Court of Metropolitan Magistrate on 06th December 2012 and case was committed to the Court of sessions by Learned Metropolitan Magistrate. On 1st March, 2013, charges u/s 341, 307 & 506 IPC were framed against accused Rizwan to which he pleaded not guilty and claimed trial.
2. Points which emerge for determination in this case are:
(i) Wherther on 11th July 2012 at about 10:30 pm, in front of Sharma Medical Store, Khadha Colony, Jaitpur, New Delhi, accused wrongfully restrained Siraj Ahmed and inflicted injuries to him with a sharp edged weapon?
(ii) If so, whether injuries were inflicted with such intention or knowledge and under such circumstances that if accused had caused him death of injured, accused would have been guilty of murder?
(iii) Whether accused criminally intimidation by threatening to kill Siraj Ahmed ? State vs Rizwan - SC No. 12/2012 2/9
ID No.02406R0307772012
3. To establish charges against the accused, prosecution examined ten witnesses. Brief outline of the testimony of prosecution witnesses is as under:
3.1 Siraj Ahmed (PW-02) is complainant and injured witness. He placed on record his statement (Ex.PW2/A). Yamin (PW-3) is eye-witness. Their depositions are discussed below. Constable Sailesh Singh (PW-1) accompanied SI Manoj Kumar at H-272, Khada Colony, Jaitpur, where it was revealed that someone was stabbed with knife. Thereafter, he alongwith SI Manoj Kumar went to AIIMS Trauma Center, where injured Siraj Ahmed was found under treatment.
3.2 Head Constable Kanwar Singh (PW-5) Duty Officer recorded FIR (Ex.PW5/A) at 10:25 pm at Police Station Jaitpur and made endorsement (Ex.PW5/B) on the rukka. Constable Surender (PW-4) deposed that on 12th July 2012 at about 11:00 pm, Duty Officer gave him 'asal tehrir' and copy of FIR for handing over the same to IO/SI Manoj Kumar. Constable Darshan (PW-6), accompanied SI Manoj Kumar on 07th May 2012 and came to Saket Court Complex, where accused Rizwan was produced from Judicial Custody pursuant to issuance of production warrant. He is witness to the arrest memo (Ex.PW6/A), disclosure statement (Ex.PW6/B), sketch of knife (Ex.PW6/C), seizure memo of knife (Ex.PW6/D) and pointing out memo (Ex.PW6/E) of place of occurrence. He identified knife (Ex.MO-1). Sub-Inspector Manoj Kumar (PW-8), conducted investigation and prepared several documents, during the course of investigation. He placed on record DD No. 45-A (Ex.PW8/A), his endorsement (Ex.PW8/B) on the statement of complainant Siraj Ahmad, site map (Ex.PW8/C), seizure memo (Ex.PW8/D) of clothes, subsequent opinion (Ex.PW8/E), seizure memo of knife (Ex.PW8/F) and identified knife (Ex.MO-1) and placed on record FSL Result dated 07th June 2013 prepared by Doctor Rajender Kumar, Deputy Director FSL Ex.PA & Ex.PB.
3.3 Doctor Sachin Chemate (PW-10) deposed that on 12th July 2012, at about 12:54 am (night), one Siraj Ahmed aged about 36 years was brought to Hospital by Head State vs Rizwan - SC No. 12/2012 3/9 ID No.02406R0307772012 Constable Lokesh for his medical examination with the alleged history of assault. On Medial examination, incised wound 20 x 2 was found on left leteral aspect of abdomen (on left flank region), active bleeding was present. PW-10 opined nature of injuries as 'simple' with 'sharp' weapon on MLC (Ex.PW7/A). Doctor Satya Prakash (PW-7) was examined by prosecution to prove MLC No.318765 (Ex.PW7/A) of Sh. Siraj Ahmed, identify signature of Doctor Sachin, as per record on the MLC. Doctor Asit Kumar Sikary (PW-9), appeared in witness box to prove 'subsequent opinion' dated 28th November 2012 regarding possibility of inflicting injury with knife, by Doctor Asha Ram Gorchiya. PW-7 deposed taht he worked with Dr. Asha Ram Gorchiya and had seen him writing and signing during the normal course of duty and identified his signatures on the subsequent opinion (Ex.PW8/E).
4. On conclusion of prosecution evidence, statement of accused u/s 313 Cr.PC. was recorded. Accused pleaded his innocence and false implication at the instance of some interested party in connivance with police officials. Accused stated that prior to the incident, he had some altercation with injured Siraj Ahmed, who was residing in his neighbourhood due to which he was falsely implicated him in this false case. Accused stated that Yamin was a interested witness, being friend of Siraj Ahmed and was doing business with him and that is why he deposed against him.
5. I have heard submissions advanced by Sh. Wasi-ur-Rahman, Learned Addl. PP for the State and Sh. Kishore Kumar, Learned Counsel for accused and have perused the record.
6. Learned Addl. PP for the State submits that prosecution has proved guilt of the accused beyond doubt. Sh. Siraj, who was examined as PW-2 categorically narrated the role of the accused and ocular testimony of Sh. Siraj (PW-2) and Sh.Yamin (PW-3) is consistent not only to each other, but also with the medical evidence. It is submitted that all incriminating documents have been duly proved and weapon of the offence and the accused have been identified by the injured witness. State vs Rizwan - SC No. 12/2012 4/9
ID No.02406R0307772012 Ld. Addl. PP submits that delay in lodging FIR is not material and accused had not obtained any such explanation from the IO for the delay. Ld. APP submits that there is no reason to discard the testimony of injured Siraj (PW-2) and eye witness Yamin (PW-3). He argued that sharp weapon was inflicted in abdomen region which indicates the intention of accused to kill the injured and no explanation has been offered by the accused regarding injuries sustained by the injured and therefore, case is proved beyond doubt and the accused is liable to be convicted for the offence charged.
7. Per contra, Learned Defence Counsel appearing on behalf of accused submits that the testimony of PW-2 is contradictory to the testimony of PW-3 Yamin. Secondly, it is pointed out that PW-2 in cross examination deposed that his brother had made a call to the police at 10:30 pm after the incident and reached at the hospital at about 11:30 pm. It is argued that PW-2 deposed that his statement was recorded in the Hospital as well as in the Police Station, whereas as per the case of prosecution, his statement was recorded at the Police Station and not at the Hospital on the next day. It is submitted that it was alleged that incident had occurred at 10:30 pm on 11 th July 2012, whereas his statement was recorded after about 24 hours. According to PW-2 he was discharged from the hospital on the next morning. It is argued that thus, there is no explanation of delay in lodging the FIR and that therefore, story of prosecution is doubtful.
9. As per MLC as well as testimony of IO/SI Manoj Kumar (PW-8), injured was fit to make statement and somebody had written on the MLC that patient was 'fit for statement'. There is no reason why statement of injured was not recorded by the IO in the hospital. Since, attending doctor had not certified injured to fit for statement. IO admitted that he had not conducted any inquiry or investigation after collecting MLC at about 12:00 am (midnight) and till the recording statement of injured at about 09:00 am. Yamin (PW-3) deposed that he alongwith Siraj (PW-2) had reached at the hospital State vs Rizwan - SC No. 12/2012 5/9 ID No.02406R0307772012 at about 03:00 am, there is no reason why statement of Yamin, who was projected as an eye-witness was not recorded on the night of 11th/12th July, whereas, his statement was recorded only on 18th July 2012. No reason is assigned for delay in recording his statement after 6 days, which indicates that Yamin (PW-3) was not an eye witness and was introduced by the police.
10. Learned Counsel further submitted that as per the case of prosecution recovery of alleged knife at the instance of accused was effected on 07th September 2012, whereas the alleged incident occurred on 11th July 2012. It is submitted that recovery of knife after two months from the bushes near Durga Builder is doubtful. It is urged that Constable Darshan, who was witness to the recovery of knife deposed that knife was lying at a distance of about 4-5 feet from the road and knife was visible from the road. PW-6 admitted that IO had not prepared site map of place of recovery of knife and had not taken photographs of the said place in his presence. He deposed that he had put his signatures on the sketch of knife on the same place, PW-6 deposed that IO had not given seal to him after use and retained the same with him. It is pointed out that on seeing the knife, witness stated that knife was rusted and at present, there were no stains of blood on the knife and IO had not deposited the knife in the malkhana in his presence, which indicates that the knife was planted and Yamin (PW-3) could not identify the knife as he could not see the knife properly. IO (PW-8) has deposed that public persons had jointly informed him that accused Rizwan had inflicted stab injury upon a boy and he fled away. He voluntarily stated that they knew Rizwan because he used to commit such type of incident in the area. It is argued that PW-8 had not mentioned in the case diary or in the charge sheet that public persons had informed him that one Rizwan had inflicted stab injury upon a boy and he fled away.
State vs Rizwan - SC No. 12/2012 6/9
ID No.02406R0307772012
11. As per the opinion of doctor, injured has sustained incised wound 20 x 2 cm muscle deep on the left lateral aspect of abdomen and nature of injuries opined by the doctor is 'simple' caused by sharp weapon. As per the FSL report (Ex.PB) prepared by Doctor Rajender Kumar Human 'O' Group was found on the baniyan and T shirt (half sleeves), but on the alleged weapon of offence 'no reaction' was opined.
12. Learned Counsel placed reliance upon a case reported as 'Rajiv Kumar vs State (Govt. of NCT), Delhi 2013 (2) JCC 1053' in support of his submissions that recovery of knife was doubtful as no public witness was associated that time. He also placed reliance upon 'Shahbeg Singh vs State of Punjab 2008 (1) RCR (Criminal)' wherein accused had faced trial u/s 307 as well as 326 and 323 r/w 34 IPC. It was noted therein that "on perusal of operation note placed on the file, it transpired that doctors operating upon the injured did not form any specific opinion that injuries were dangerous to life and although, injuries in the said case were on abdomen, but doctor who declared the injuries dangerous to life was not examined. It was observed that no material was found as to what were the reasons for the doctor coming to conclusion that injuries were dangerous. In these circumstances, appeal was partly accepted and the impugned Judgment whereby the appellant was convicted u/s 307 IPC was set aside and appellant/accused was convicted only u/s 323 and 324 r/w 34 IPC". Next, Learned Counsel referred "Vikas Bhardwaj @ Sonu & Anr. Vs. State of NCT of Delhi"
2014 (2) JCC 996" of our High Court in support of his submission that entire incident had taken place on the spur of moment and accused had no intention or knowledge that by his act he could have caused the death of victim and injuries were caused by knife and were incised wound, but 'simple' in nature. In that case, it was held that conviction u/s 307 IPC was not sustainable and the conviction was modified to u/s 324 IPC. It is argued that in the presence case, alleged knife used by the accused was a vegetable cutting knife which he picked up from the nearby rehri and there was no pre- State vs Rizwan - SC No. 12/2012 7/9
ID No.02406R0307772012 mediation. Indisputable, in the present case, injuries opined by the doctor are 'simple' in nature and even the doctor, who examined injured has not appeared in the witness box, therefore, it cannot be held that injuries were dangerous to life of Siraj Ahmed.
13. Essential ingredients required for a conviction under Section 307 of the IPC are :
(i) That the death of a human being was attempted;
(ii) That such death was attempted to be caused by, or in consequence of the act of the accused;
(iii) That such act was done with the intention of causing death; or that it was done with the intention of causing such bodily injury as ; (a) the accused new to be likely to cause death; or (b) was sufficient in the ordinary course of nature to cause death, or that the accused attempted to cause death by doing an act know to him to be so imminently dangerous that it must in all probability cause
(a) death, or (b) such bodily injury as is likely to cause death, the accused having no excuse for incurring the risk of causing such death or injury."
14. All the ingredients of the offence must be present before an accused is convicted. The injuries sustained, the manner of the assault and the weapons used are all relevant factors. The intention or knowledge, which is foremost ingredient of Section 307 of the IPC must precede the act attributed to the accused. This intention/knowledge has to be gathered from the circumstances and not necessarily from the ensuring result.
15. In the case in hand, perusal of record shows that accused Rizwan was known to injured Siraj (PW-2), who had deposed that accused stopped his motorcycle. He demanded money from him, but complainant refused to give money. Complainant has stated in his deposition, that he used to taken money from him for liquor and when he refused, accused starting abusing him and threatened to kill him. He picked up a State vs Rizwan - SC No. 12/2012 8/9 ID No.02406R0307772012 knife from a nearby rehri and inflicted a knife blow on the left side of his abdomen.
16. There is nothing in cross examination of PW-2 to impeach his veracity or to disbelieve him regarding wrongful restraining and causing injuries by a knife blow on the left side of his abdomen and also criminally intimidating him to kill him. Now, the only question to be addressed is whether accused can be held guilty for the offence punishable u/s 307 IPC. Record shows that accused had not come with any preparation to inflict injuries with knife. When Siraz Ahmed (PW-2) refused to give money. Then, accused picked up a knife from nearby rehri and inflicted a knife blow on the spur of moment. Simply because, injuries were inflicted on the abdomen portion, the accused cannot be convicted u/s 307 or even 308 IPC. This Court finds merit in the contention of Ld. Counsel appearing for the accused in this regard. It is not the case of prosecution that accused inflicted any multiple blow. As per MLC (Ex.PW7/A), nature of injuries opined by attending doctor is simple caused by the sharp weapon. There is nothing on record to show that injuries inflicted by accused were 'dangerous to life'. In this background and circumstances, obtaining on record, it cannot be said that accused had any pre-mediated design or intent or knowledge that by his act he could have caused the death of Siraj Ahmad (PW-2). Keeping in view all the circumstances and nature of injuries noted above, accused cannot be convicted for the offence punishable u/s 307 IPC. However, in the factual matrix of the case, accused is liable to be convicted for lesser offence u/s 324 IPC.
17. In the result, accused is convicted for the offence punishable u/s 341, 324 and 506 IPC.
announced in the
open Court
on 29th October 2014 (Vinay Kumar Khanna)
Additional Sessions Judge-04 & Special Judge (NDPS)
South East, Saket Court/New Delhi
State vs Rizwan - SC No. 12/2012 9/9
ID No.02406R0307772012
IN THE COURT OF ADDITIONAL SESSIONS JUDGE - 04
& SPECIAL JUDGE (NDPS) SOUTH EAST: SAKET COURTS: DELHI
Sessions Case No. 12/2012
ID No.02406R0307772012
FIR No. 225/2012
U/s. 307/341/506 IPC
PS : Jaitpur
State
VERSUS
Rizwan, ..........Accused
s/o Mohd. Anwar,
r/o H. No. 207, Block-H,
Jaitpur, New Delhi
ORDER ON SENTENCE
Present : Sh. Kishore Behuria, Amicus Curiae for convict Rizwan.
Sh. Wasi-Ur-Rehman, Addl. PP for the State.
Convict produced from J/C.
1. Having convicted accused Rizwan u/s 341, 324 and 506 IPC, I have heard submission advanced by Learned Counsel for the accused as well as Learned Addl. PP for the State on the point of sentence.
2. Learned APP submits that convict caused injuries to the complainant with knife and therefore, he does not deserve any leniency and should be awarded maximum punishment.
3. Learned Counsel for the convict submit that he is not a previous convict and is a young boy of 22 years of age having aged Mother, Father, two brothers and three sisters. It is submitted that he was earlier working as Electrician and remained in Judicial Custody during trial w.e.f. 07th September 2012 till date i.e. for a total period 2 years, 1 month and 24 days. Learned Counsel prayed for taking a lenient view and giving an opportunity to rehabilitate the convict in the society. State vs Rizwan - SC No. 12/2012 10/9
ID No.02406R0307772012
4. He urged that convict is repenting his act and he be given a chance of reformation, which he would loose in case he is incarcerated further in prison and confined in association with hardened criminals.
5. In determining question of proper punishment in a criminal case, Court has to weigh the degree of culpability of the accused, its effect on others as well as the character and the conduct of the offender and the desirability of showing leniency. An act of balancing is needed between the interest of the individual and the concern of the society.
6. Having regard to the totality of facts and circumstances noted above and particularly the conduct of convict during trial and his clean antecedent, this Court is of the considered view that convict should be given an opportunity to reform and rehabilitate himself in the society and to become responsible citizen of state. Therefore, this Court concludes that ends of justices would be met by sentencing the convict as under :-
(i) u/s 324 IPC, for one month Simple Imprisonment,
(ii) u/s 506 IPC, for two years Rigorous Imprisonment and
(iii) u/s 324 IPC for a period already undergone by him i.e. 2 years, 1 months and 24 Days.
7. All these sentences shall run concurrently and convict shall be given benefit u/s 428 Cr.PC. File be consigned to Record Room.
announced in the
open Court
on 31st October 2014 (Vinay Kumar Khanna)
Additional Sessions Judge-04 & Special Judge (NDPS)
South East, Saket Court/New Delhi
State vs Rizwan - SC No. 12/2012 11/9