Delhi District Court
State vs . Farukh Etc. on 28 March, 2011
State Vs. Farukh etc.
IN THE COURT OF SHRI GURVINDER PAL SINGH
ADDL. SESSIONS JUDGE(FTC), SOUTH DISTRICT
SAKET COURTS, NEW DELHI
Session Case No. 38/2008
ID No. 02403R0671872006
State Vs. : 1. Farukh
S/o Sh Kakan
R/o D83, Chattarpur,
New Delhi.
2. Iqbal
S/o Sh Kakan
R/o D83, Chattarpur,
New Delhi.
3. Fajluddin@ Leela
S/o Sh Basruddin
R/o D83, Chattarpur,
New Delhi.
4. Sabuddin
S/o Sh Basruddin
R/o D83, Chattarpur,
New Delhi.
SC No. 38/08 1/47
State Vs. Farukh etc.
5. Chamu @ Shana Baj
S/o Sh Basruddin
R/o D83, Chattarpur,
New Delhi.
6. Kakan
S/o Sh Salla
R/o D83, Chattarpur,
New Delhi.
FIR No. 105/95
P.S. Mehrauli
U/s 147/148/302/307/149 IPC
Date of Institution : 05/07/1995
Date when arguments
were heard : 16/03/2011
Date of Judgment : 28/03/2011
JUDGMENT
BRIEF FACTS OF PROSECUTION CASE:
The investigating machinery came into motion on receiving of information at 10.58 pm on 05/04/95 through wireless recorded in DD No. 18A, at police station Mehrauli that, "Muslim SC No. 38/08 2/47 State Vs. Farukh etc. Colony Chatterpur Key Peechey Chakoo Chal Gaye Kaafi Aadmi Mazroob, Teen Aadmiyon Ko Lekar PCR Gadi Hospital Gayee Hai"
from ASI Harbir Singh of PCR with request to send SHO P.S Mehrauli to the spot. Copy of said daily dairy was entrusted to PW11 SI Dharamvir Singh (now Retired) who alongwith PW8 Ct Banwari Lal proceeded to the place of occurrence at Village Chatterpur in the street opposite shop of Farukh but was unable to find any eye witness there and came to know that the injured had been taken to hospital. PW11 SI Dharamvir accompanied by PW8 Ct Banwari Lal went to AIIMS Hospital where he met injured Gulshan, Niazuddin, Momin and Qayyum admitted amongst which injured Qayyum was declared unfit for statement and other injured were declared fit for statement. PW11 SI Dharamvir Singh recorded the statement of Momin Ex PW1/A which is as follows:
Momin stated that he with his family was resident of C83, Chatterpur, New Delhi, on date 04/04/95 there had taken place some exchange of abuses on household talks with Farukh and the matter was got resolved with the intervention of Niyamuddin, elder brother of Momin with Kakan, father of Farukh. Also, first SC No. 38/08 3/47 State Vs. Farukh etc. informant alleged that at 10.30 pm on 05/04/95 after ending his work, he was passing away by the shop of Farukh then on seeing Momin, first informant, the accused Farukh started abusing. Momin objected to the abuses and Farukh said, " Kal To Chorh Diya Tha Aaj Nahi Chorhunga". Saying so Farukh took out and brought saria from his shop, assaulted on the head of Momin. At that time Iqbal, brother of Farukh came out having danda in his hand and gave danda blow on the hand of Momin. Upon this Momin shouted, "BachaoBachao".
Hearing the shouts, Qayyum, son of maternal uncle of Momin, came there to separate Momin and then Chammu, Kakan, Leela, Sabuddin @ Tilwa having in their hands lathies and sarias came. Chammu hit saria on the head of Nimaju, upon which he fell down and became unconscious and when the elder brother of Momin came to save them then he was given beatings by danda and saria and when they after escaping from the clutches of assailants were in the process of running to their house then Chammu, Kakan, Leela and Sabuddin pelted bricks and stones on them by which they received injuries. PW11 SI Dharamvir Singh scribed tehrir Ex PW11/E and sent PW8 Ct Banwari Lal to police station Mehrauli for getting FIR registered. SC No. 38/08 4/47
State Vs. Farukh etc. Case FIR No. 105/95 was registered for offences under Sections 147/148/149 and 307 IPC. Matter was investigated. On 09/04/95 information was received at police station Mehrauli, recorded in DD No. 3A, that Qayyum who was admitted on 05/04/95 in AIIMS Hospital had expired that day. The deadbody of Qayyum was got sent for postmortem. The Autopsy Surgeon opined that the cause of death of Qayyum was due to coma as a result of cranio cerebral damage caused by impact of hard blunt object, which was sufficient to cause death in ordinary course of nature and as per the postmortem conducted on 09/04/95 the injuries were antemortem in nature about four days old in duration and caused by impact of blunt force/object. Upon conclusion of investigation, charge sheet was filed for offences under Sections 147/148/149/302/323/506 IPC.
2. On completing the requirements of Section 207 IPC, the case was committed to the Court of Sessions.
CHARGE:
3. In terms of order dated 05/09/97 of my Ld. Predecessor, SC No. 38/08 5/47 State Vs. Farukh etc. charge for offences under Sections 147/148/302/149 IPC; 307/149 IPC was framed against the accused persons to which they pleaded not guilty and claimed trial.
WITNESSES:
4. To connect the accused with the offences charged, the prosecution has examined in all 11 witnesses.
OFFICIAL WITNESSES:
5. PW4 Ct Paras Ram is the witness of arrest of accused Fazluddin on 17/04/95. PW4 stated that said accused Fazluddin gave disclosure statement Ex PW4/A.
6. PW6 Ct Tridev accompanied PW8 and SI Chinta Singh in investigation when the body of deceased was identified by PW5 Sh Jafar Ali and Sh Mehmood Ali. After the postmortem on the body of deceased Qayyum, body was handed over to PW5 Sh Zafar Ali. PW6 is also witness of seizure of bottle with sample seal by IO vide memo Ex PW6/A. SC No. 38/08 6/47 State Vs. Farukh etc.
7. PW8 Ct Banwari Lal accompanied PW11 SI Dharamvir Singh on 05/04/95 to the place of occurrence pursuant to receipt of copy of DD No. 18A and then to hospital from where after recording of statement of first informant, he was handed over rukka by IO, which he brought to police station and got FIR registered, whose copy and rukka he gave back to IO. PW8 is also witness to arrest of accused Iqbal, Farukh and Kakan.
8. PW9 Ct Desh Pal is the witness of arrest of accused Sahabuddin and Chammu on 10/06/95. PW9 also stated that these accused persons gave their disclosure statements Exts PW9/A and PW9/B respectively.
9. PW 11 is the IO SI Dharamvir (now Retired) who had reached the place of occurrence in the night of 05/04/95 on receipt of copy of DD No. 18A alongwith PW8 Ct Banwari Lal and had come to know that injured were removed to hospital. On reaching AIIMS Hospital alongwith PW8 Ct Banwari Lal, PW11 met injured SC No. 38/08 7/47 State Vs. Farukh etc. Niazuddin, Momin, Gulshan Kumar and Qayyum admitted there. Qayyum was declared unfit for statement and other three injured were declared fit for statement by the doctor vide statements Ex PW11/A, PW11/B, PW11/C and PW11/D. PW11 recorded statement of Momin Ex PW1/A, made endorsement Ex PW11/E and sent PW8 to police station for getting FIR registered who brought the copy of FIR and rukka to the hospital. PW11 prepared the site plan Ex PW11/F on reaching the spot. PW11 also recorded the statement of witnesses and arrested accused Iqbal, Kakan and Farukh and conducted their personal search vide memos Exts PW11/G, PW11/H and PW11/J. PW11 also recorded the disclosure statement of accused Sabuddin and Chammo vide memos Exts PW9/A and PW9/B respectively. PW11 stated of having recovered iron rod and one danda at the instance of accused Sabuddin from his house, sealed it with the seal of DST and whose pointing out cum seizure memo was prepared as Ex PW11/K. PW11 also stated that he recovered two more dandas and one saria at the instance of accused Chammo which were sealed with the seal of DST and whose pointing out cum seizure memo was prepared as Ex PW11/L. PW11 further stated that on SC No. 38/08 8/47 State Vs. Farukh etc. 17/04/95 he had also arrested the accused Fazluddin, conducted his personal search vide memo Ex PW11/M and recorded his disclosure statement Ex PW4/A. Later on 10/06/95 accused Sabuddin and Chammo were arrested by PW11 and their personal search were conducted vide memos Exts PW11/N and PW11/O. On 09/04/95 information was received regarding death of injured Qayyum. Since PW11 was on leave, postmortem on the deadbody of deceased was got conducted by SI Chinta Singh. PW11 collected the MLCs of deceased and injured which are Exts PW10/A, PW10/B, PW10/C and PW10/D as well as postmortem report Ex PW7/A; sealed sample from AIIMS which were deposited in mal khana. PW11 had also identified three dandas and two iron rods, Exts P1 to P5, which were recovered and seized as weapons of offences.
MEDICAL EVIDENCE:
10. PW10 Dr. D.N Bhardwaj, Additional Professor, Forensic Medicines, AIIMS testified that he had been deputed on behalf of Dr. Victor who had left the services of the hospital, whose present address was not known; PW10 identified the handwriting and signatures of SC No. 38/08 9/47 State Vs. Farukh etc. Dr. Victor since he had seen his writing and signing in the course of his official duties. PW10 has proved the MLC of Qayyum as Ex PW10/A; MLC of Momin as Ex PW10/B; MLC of Niazuddin as Ex PW10/C and MLC of Gulshan as Ex PW10/D, bearing the signature of said Dr. Victor who had examined these persons.
11. PW7 Dr. B.L Choudhary from Department of Forensic Medicine, AIIMS had testified that he had been deputed by Medical Superintendent of his hospital for Dr. O.P Murti who had left India, being in Malaysia. PW7 stated that he had identified the signature and handwriting of Dr. O.P Murti and that he had seen the postmortem report of Qayyum, in terms of which the postmortem on the deadbody of Qayyum was conducted by Dr. O.P Murti. PW7 stated that following antemortem injuries were found on the body of deceased:
1. Bruise abraded with dark brownish scab of 1.5 cm x 0.5 cm over back of right elbow.
2. Bruise 2 x 1 cm size greenish colour and another adjacent to it 3 x 1.5 cm size of same colour present over middle front of SC No. 38/08 10/47 State Vs. Farukh etc. right arm.
3. Bruise green colour of 8 cm length and width of 2.5 cm with normal area in between two arms medial and meeting at one point obliquely placed 5 cm below the illiac crest.
4. Abraded bruise 2 x 0.2 cm having dark brown scab over it situated 10 cm above the knee.
5. Abraded bruise of 4 x 1 cm over middle back of left hand obliquely placed 5 cm below the wrist joint.
6. Bruise 6 x 5 cm over back of left side chest irregular with puctate abrasion over it scabbed 8 cm below the top of the left shoulder.
7. Laceration stitched contused margin with scabbing at left fronto tempero parital region. Parital healing present. Margins stitched to each other measuring 2.8 cm x 5 cm. with contusion of 1 cm, 5 cm. from mid line, 9 cm above the left ear 7 cm infront of right perital eminence.
8. Abraded bruise of 2.5 cm x 1.5 cm over back of occipital region underneath area showed extravasation of blood in an area 3.5 x 2.2 cm area.
SC No. 38/08 11/47
State Vs. Farukh etc. SCALP: Scalp showing extravasation of blood dark in colour over occipital and left side of tempero perital frontal region.
Skull showed surgically cut bone piece of parieto temporal region of size 4.5 x 4.6 cm, underneath this there extra dural haemorrhage clotted dark colour, of size 10 cm x 6 cm x 2 cm. A fissure fracture of about 5.6 cm extending from left temporal to left side orbital plate present corresponding to injury no. 7. Brain weighed 1300 grams substances showed haemorrhages at places congested (the word after congested is not readable due to peculiar handwriting) over frontal poles left temporal region area.
Both eyes partially opened. Cornea clear. Conjeuctiva edematous. Rigor mortis started developing in all limbs, well developed in smaller area, in large muscle note well marked. Postmortem staining blueish colour confluent patches not fixed. Nose deformed, nostrils have regurgitated material. Surgical cramiotomy wound of 12 cm x 1 cm having black stitches present over left temporal parietal region having rail road pattern. Ribts and Chest:
Extra vasation under injury no. 6.
SC No. 38/08 12/47
State Vs. Farukh etc. Trachea and bronchi walls congested. Lungs: Corresponding area of left lung contused. Both lungs showed consolidated.
Spleen: 160 grams, liver congested.
The cause of death of deceased was opined to be due to coma as a result of cranio cerebral damage caused by impact of hard blunt object, which was sufficient to cause death in ordinary course of nature, while all injuries were antemortem in nature about four days old in duration and caused by impact of blunt force/object. The blood sample was taken. The postmortem report has been proved as Ex PW7/A. RELATIVE WITNESS:
12. PW5 Sh Zafar Ali, father of deceased Qayyum, identified the body of his deceased son vide statement Ex PW5/A and had received such dead body after postmortem vide memo Ex PW5/B. MATERIAL WITNESSES:
13. Injured PW1 Sh Momin, PW2 Sh Niazuddin and PW3 SC No. 38/08 13/47 State Vs. Farukh etc. Sh Gulshan are the examined material prosecution witnesses whose evidence shall be appreciated in detail herein later. STATEMENTS OF ACCUSED:
14. Thereafter accused persons were examined under Section 313 Cr.P.C. All incriminating material in evidence was put to the accused persons. Accused persons pleaded innocence and false implication.
14(i) Accused Farukh stated that he was innocent and falsely implicated in this case. He further stated that Momin had come in a drunken state to his shop and was armed with lathi, who started abusing him and hit him with lathi on his head. Accused Farukh stated that he saved himself by stopping the attack with the hand and in the meantime, the other associates of Momin also came there armed with lathis and knives and attacked them. Accused Farukh stated that they received injuries and they called the PCR by dialing 100 number upon which the police came at the spot. Large number of crowd had gathered at the spot. Momin and his other associates including Niazuddin, Islamuddin, Sher Mohd, Gulshan were also SC No. 38/08 14/47 State Vs. Farukh etc. armed with lathi and said persons abused them while being drunk and were raising lot of noise and chaos at the spot because of which the persons of the neighbourhood and the crowd had collected at the spot and started pelting stones on them and scuffled with those persons due to which some of them received injuries. Qayyum was not present at the spot. Shahbuddin, Fazluddin, Chammu alias Shahnawaj were not present at the spot as they had gone to attend the marriage of son of Liyakat Ali at Ballabhgarh.
14(ii) Accused Iqbal and Kakan stated that on hearing noise and commotion and information from a neighbor, they came out near the shop of Farukh and saw that Momin had come in a drunken state to the shop of Farukh and was armed with lathi; Momin started abusing Farukh and hit him with the lathi on his head. Farukh saved himself by stopping the attack with the hand and in the meantime, the other associates of Momin in drunken state also came there armed with lathis and knives and attacked them. Niazuddin inflicted a knife injury on left leg. They received injuries and they called the PCR by dialing 100 number upon which the police came at the spot. Large number of crowd had gathered at the spot. Momin and his other SC No. 38/08 15/47 State Vs. Farukh etc. associates including Niazuddin, Islamuddin, Sher Mohd, Gulshan were also armed with lathis and knives and they were abusing them while being drunk and were raising lot of noise and chaos at the spot because of which the persons of the neighborhood and the crowd had collected at the spot and started pelting stones on them and scuffled with those persons due to which some of them received injuries. On noticing that the police is coming, all the above said persons except Momin managed to escape from the spot. Qayyum was not present at the spot. Shahbuddin, Fazluddin, Chammu alias Shahnawaj were not present at the spot as they had gone to attend the marriage of son of Liyakat Ali at Ballabhgarh. They had reported the matter to the police who reached the spot and also the local police in the hospital but their correct version was not recorded by the police. 14(iii) Accused Fazluddin @ Leela; accused Sabuddin and accused Chammo stated that they were not present at the spot at the alleged time of incident as they had gone to Ballabhgarh, Faridabad to attend the marriage of son of Liyakat Ali who was brother in law (sala) of Shahbuddin on 04/04/95 and came back to Delhi on 06/04/95.
SC No. 38/08 16/47
State Vs. Farukh etc. DEFENCE EVIDENCE:
15. Two witnesses namely Sh Liyakat Ali and Sh Yusuf Khan were examined as DW1 and DW2 respectively in defence evidence.
15(i) DW1 Sh Liyakat Ali testified that on 05/04/95 accused Shahbuddin, Fazluddin and Chammo had attended the marriage of his son at Anwar Garh, Gautam Budh Nagar, UP.
15(ii) DW2 Sh Yusuf Khan testified that on 05/04/95 at about 10.30 pm at Chatterpur a quarrel took place between Farukh, Kakan and Iqbal on one side and Sheru, Niyazu and Momin on the other side, while he had intervened between them and adviced them not to quarrel. As per DW2, the aforesaid persons did not hear his advice, so he left for his house but came to know later that both parties have received injuries, while he was not knowing for what reason the quarrel took place.
ARGUMENTS
16. I have heard the arguments of Ld. Addl. PP for the State, the defence counsel and have perused the record including the SC No. 38/08 17/47 State Vs. Farukh etc. evidence led and given my thoughts to the rival contentions put forth. 16(i) Ld. Addl. PP argued that that the accused persons were the members of unlawful assembly whose common object was to cause injuries to the persons of members of the opposite party and in prosecution thereof such object, accused had caused death of Qayyum and caused such injuries on the person of Momin, Niazuddin and Gulshan with intention and knowledge that by their such act, they could have caused their death.
Ld. Addl. PP argued that unlawful assembly can be formed on the spur of the moment, it was not necessary that each member should participate or commit overt act so that liability can be fastened upon him and it is also not required for the witnesses to narrate the manner of causing injuries and roles of each accused.
Ld. Addl. PP argued that presence of all accused has been established on record; even motive is not required to be proved.
Ld. Addl. PP argued that even though PW3 after supporting the case of the prosecution in the examination in chief had resiled during the course of cross examination but yet the facts deposed by PW3 in his examination in chief may be accepted as true. SC No. 38/08 18/47
State Vs. Farukh etc. Ld. Addl. PP further argued that the common object of the assembly can be ascertained from the acts of the accused, their language, from surrounding circumstances, conduct adopted by the accused, nature of assembly as to how it was formed; arms carried by accused and behaviour of the members at or near the scene of incident. The common object or purpose is entertained in human mind and no direct evidence can be found.
Ld. Addl. PP argued that certain discrepancies are bound to occur in testimonies of prosecution witnesses which is a natural phenomena and minor discrepancies cannot be made ground for rejection of evidence in entirety.
Also was argued by Ld. Addl. PP that the prosecution witnesses have given the versions of roles played by the accused persons in the crime and had duly identified the accused in the court.
Ld. Addl. PP argued that injured prosecution witnesses are reliable and trustworthy for basis of conviction of the accused. 16(ii) Ld. Defence Counsel submitted that it is evident from the cross examination of PW1 that the scene of crime viz. the shop SC No. 38/08 19/47 State Vs. Farukh etc. of accused Farukh was not located on the way of PW1 on returning from his place of work to his home, as he alleged; as per own version of PW1, the place of work of PW1 viz. the workshop closes at 6 pm and which is at distance of one kilometer away from the place of residence of PW1, so by any means PW1 would have reached his home at 7 pm and shop of accused Farukh was not on the way of house of PW1 and on that count at the outset PW1 is telling lie of having reached in front of shop of accused Farukh at 10.30 pm on way of coming back from his place of work.
Ld. Defence Counsel argued that it was PW1 and his companions who were the aggressor party who came at the shop of Farukh, quarreled and gave beatings to accused Farukh, Iqbal and Kakan.
Ld. Defence Counsel argued that the three material prosecution witnesses viz. PWs 1,2 and 3 are though the cited witnesses of the same occurrence but they are telling entirely different versions which are inter se contradictory as well as to present case of the prosecution.
Also was argued by Ld. Defence Counsel that police was SC No. 38/08 20/47 State Vs. Farukh etc. called by accused Farukh who had taken three injured from the party of accused Farukh and one Momin to hospital and Qayyum, now deceased, as well as Gulshan were not present at the scene of crime and somehow or the other they reached the hospital later and from the evidence on record neither it is borne out nor it is proved, beyond reasonable doubt, as to by which weapon or which accused had assaulted which injured. As per the prosecution version, from the evidence of prosecution, doubt over genesis of crime has arisen.
Ld. Defence Counsel argued that PW1 even in the course of cross examination has changed the place of occurrence saying no incident took place at the shop of Farukh but took place in their gali where their houses were situated. House of PW1 was situated in the lane which was in the backside of the shop of the Farukh.
It has been also argued that it is own case of the prosecution as well as what has come in the prosecution evidence that all the accused persons had not come together and armed and it has been alleged in the prosecution evidence that accused persons had come one after the other and from the act, language of the accused or their conduct, the surrounding circumstances or behavior of the SC No. 38/08 21/47 State Vs. Farukh etc. accused as borne out from the testimony of PWs1,2 and 3, it cannot be presumed that any or all accused did any criminal act in prosecution of their common object.
Ld. Defence Counsel argued that it is the version of prosecution witnesses that the injured persons have sustained injuries by brick batting of crowd, names of such members were not brought to light and it accordingly being a case of free fight, no offence of rioting is made out against any or all accused but every individual is liable for every individual criminal act committed and no constructive criminal liability can be imposed on him.
Ld. Defence Counsel argued that in terms of the postmortem report Ex PW7/A and evidence of the doctor, PW7, the injuries on the head of deceased Qayyum were possible by fall and and striking of head on a hard surface as well as of striking of the brick on the head in a brick batting. Even, PW7, doctor, admitted that in case of such receiving of injuries on the head, if the patient does not go to the hospital immediately, the internal haemorrhage will continue without any apparent effect on the individual and going to the hospital at a belated stage will result in continuous SC No. 38/08 22/47 State Vs. Farukh etc. haemorrhage which may lead to disaster. PW7 also admitted that if the patient would have reported in the hospital at the earlier point of time, his life would have been certainly saved.
Ld. Defence Counsel argued that in case the version of the material prosecution witnesses namely PWs 1,2 and 3 is believed than they would made out a case all together in contradiction with the presented case of prosecution, a new version not acceptable in law.
Ld. Defence Counsel argued that no accused was nursing any animus against Qayyum; the injured Qayyum, later expired and Gulshan had gone of their own to the hospital, much later to the alleged occurrence in question.
Ld. Defence Counsel further argued that though PW1 and three accused persons were taken to hospital by PCR officials, the investigating agency did not record statement of any such officials of PCR who had taken these persons for medical treatment to hospital, which evidence has been deliberately withheld causing prejudice to the accused; crime team was not called at spot; site not photographed; scaled site plan was not prepared and bricks and stones not seized.
SC No. 38/08 23/47
State Vs. Farukh etc. Ld. Defence Counsel argued that the falsities apparent in the testimonies of material prosecution witnesses not only project the material witnesses as unreliable and untrustworthy but also project PW1 and his companions to be aggressor party and injuries on the person of Farukh, Kakan and Niazuddin remained unexplained and the cumulative effect making the accused entitled acquittal. 16(iii) Upon the version of accused Farukh, case FIR No. 106/95, P.S. Mehrauli was registered against PW2 Sh Niazuddin, PW1 Sh Momin, PW3 Sh Gulshan and others, titled State vs Niazuddin & Others, which case has been simultaneously tried by this court and will also be decided simultaneously with this case at hand. The versions of the aggrieved/prosecution in both cases are different, having entirely different set of witnesses, about different sequence of occurrence and these cases have been tried separately. Evidence needs to be appreciated separately in these two cases, in terms of law laid in (1) Nathi Lal & Ors Vs. State of UP, 1990 SCC(Cri) 638; (2) Kewal Krishan Vs. Suraj Bhan & Anr, 1980 (Supp) SCC 499 and (3) Pal @ Palla Vs. State of UP, 2010 V AD (Cri) (SC) 53.
SC No. 38/08 24/47
State Vs. Farukh etc.
17. To bring home the guilt of the accused, beyond reasonable doubt, the prosecution was under bounden duty to prove that the accused were members of unlawful assembly; shared common object; acted in prosecution of said common object, assaulted Qayyum with the intention or knowledge that by their such act, they would cause death of Qayyum and infact caused such death amounting to culpable homicide and murder; caused injuries on the person of Momin, Niazuddin and Gulshan with intent or knowledge that by their such acts, they would cause their death.
18. Following injuries were found on the person of Qayyum, initially injured and later expired and other injured namely Momin, Niazuddin and Gulshan, in terms of their MLC and examination of PW10 Dr. D.N Bhardwaj.
INJURIES OF QAYYUM, INITIALLY INJURED LATER DECEASED:
19. As per MLC Ex PW10/A, the arrival time of Qayyum at AIIMS Hospital was 23:44 hours on 05/04/95 and he had come on his SC No. 38/08 25/47 State Vs. Farukh etc. own. Qayyum was examined by Dr. L.R Victor, he had come with the alleged history of assault. As per the MLC, Qayyum was found to have injuries on his head, opined as grievous by blunt object. Qayyum had altered senorium and had also vommitted. The size of the injuries were not given in the MLC.
INJURIES ON THE PERSON OF MOMIN:
20. In terms of MLC Ex PW10/B, injured Momin was brought to Casualty by ASI Harbir Singh of PCR at 11.10 pm on 05/04/95 with the alleged history of assault on head. As per the MLC, he had also suffered head injury viz. CLW scalp which was opined as simple injury caused by blunt object. The size of the injury suffered were not given in the MLC.
INJURIES ON THE PERSON OF NIAZUDDIN:
21. In terms of MLC Ex PW10/C, injured Niazuddin was brought to hospital by HC Nand Ram of PCR at 11.26 pm on 05/04/95 with the alleged history of assault. As per the MLC, he had suffered lacerated wound on his forehead, right hand, right leg and SC No. 38/08 26/47 State Vs. Farukh etc. swelling on left shoulder. The size of the injuries suffered were not given in the MLC. The injuries were opined as simple in nature caused by blunt object.
INJURIES ON THE PERSON OF GULSHAN:
22. In terms of MLC Ex PW10/D of Gulshan, the time of his arrival at AIIMS Hospital was 00:56 hours on 06/04/95 and he had also come on his own with the alleged history of assault on his forehead. The nature of injury was opined as simple by blunt object in the MLC. The size of the injury suffered was not given in the MLC.
23. In terms of the postmortem report Ex PW7/A and testimony of PW7, the cause of death of Qayyum was due to coma as a result of cranio cerebral damage caused by impact of hard blunt object, which was sufficient to cause death in ordinary course of nature. PW7 further opined that the injuries on the head of deceased Qayyum were possible by fall and and striking of head on a hard surface. PW7 also admitted that such injuries on the skull were possible by striking of a brick on the head in a brick batting. PW7 SC No. 38/08 27/47 State Vs. Farukh etc. also admitted that after receiving of head injuries as shown in the postmortem if the patient does not go to the hospital immediately the internal haemorrhage will continue without any apparent effect on the individual and going to the hospital at a belated stage will result in continuous haemorrhage which may lead to disaster. PW7 further admitted that if the patient would have reported in the hospital at the earlier point of time, his life would have been certainly saved.
24. I, now, proceed to appreciate the evidence on record in the backdrop of the suffered injuries on the person of injured and deceased. PW1 Momin testified that on the fateful night he was coming back to his house from his place of work at about 10 or 10.30 pm and was passing by in front of shop of Farukh. PW1 stated of working as Denter with Ganga Automobile at Andheria Mor which was one kilometer away from his house. As per PW1, his duty hours were 9.30 am to 6 pm and his workshop closed at 6 pm. In terms of the answers given by PW1 in the cross examination of defence counsel, the maximum time taken by PW1 to reach from his place of work to his house would be about one hour. Yet, it was projected by SC No. 38/08 28/47 State Vs. Farukh etc. PW1 in his version to police contained in Ex PW1/A and his testimony in court that he was returning from his place of work to his home at 10.30 pm. From the answers elicited from PW1 in the cross examination of Defence Counsel it has been made vivid and clear that shop of accused Farukh was not located on the way of returning of PW1 from his place of work to his place of residence. What has also been made clear in cross examination of PW1 is that the house of PW1 was at the dead end of the street, which street was located on the back side of the main road in front of shop of accused Farukh. In front of house of PW1 there were houses of accused Chammu, Shabuddin and Fajluddin but their portions were divided 2/3 months prior to the occurrence. Upon this these three persons had made separate entry gates, opening in the street, while prior to division of their portions, there was only one entrance to their house. Though PW1 denied the suggestion that he wanted to illegally possess the piece of land in front of his house but he himself volunteered to add that this street was left by them from their land. PW1 also denied the suggestion that he had disputes with the accused as accused Chammu, Shabuddin and Fazluddin had opened their doors in the street for SC No. 38/08 29/47 State Vs. Farukh etc. which reason he could not take possession of the street.
25. The manner, sequence of occurrence, the roles of accused in the commission of crime, use of weapons, arrival and departure of the accused persons at the scene of crime in the course of occurrence, sustaining of injuries by the injured, arrival of the injured and their departure from the place of occurrence has been stated at variance by PWs 1,2 and 3 not only from the presented case of prosecution but also in their sworn statements when they were examined in court which is inter se contradictory.
26. PW1 testified that when he was passing in front of shop of Farukh, after having seen PW1, Farukh started giving abuses to PW1 and started quarreling with him. When PW1 asked accused Farukh not to abuse then accused Farukh grappled with him; in the meantime Iqbal, brother of Farukh, having danda in hand gave danda blow on the hand of PW1 and then accused Farukh took out a saria and hit PW1 on his head. While these acts were alleged to have been committed, in terms of version of PW1, other accused persons SC No. 38/08 30/47 State Vs. Farukh etc. were not at the scene of crime. PW1 stated that after aforesaid acts were committed by accused Farukh and Iqbal, then accused Sabuddin, Chammu, Leela and Kakan came there armed with lathis and saria; then PW2 Niazuddin, his brother, Islamu, Qayyum (now deceased) and his cousin brother, PW3 Gulshan and Sher Mohd also came there to rescue PW1; accused Chammu gave a saria blow on the head of Niazuddin and Islamuddin also sustained head injuries; accused Iqbal and Farukh gave lathi blows on Islamuddin; the other accused also gave/caused injuries to them by sarias and dandas. PW1 further stated that all accused persons started throwing bricks and stones on them and they sustained injuries.
27. PW2 Sh Niazuddin testified that on 05/04/95 at about 10.30 pm he heard the noise, came outside from his house J84, Chatterpur, in the street and saw that Farukh had caught Momin and accused Iqbal grappled him when he tried to rescue Momin; accused Chammu gave saria blow on head of PW2 due to which he sustained injuries. PW2 stated that after sometime accused Leela, Sabuddin and Kakan brought lathis and sarias and attacked him SC No. 38/08 31/47 State Vs. Farukh etc. with sarias and lathis. PW2 ran inside his house on which they all started pelting stones.
28. PW3 Sh Gulshan in his examination in chief testified that on 06/04/95 at 10.30 pm when Momin was going to his house after finishing his duties, on seeing Momin, Farukh started abusing him to which Momin, PW1, objected. PW3 deposed that the accused Farukh said that he had left him yesterday but today he will not leave him. PW3 stated that thereafter Farukh brought one saria from his shop, hit it on the head of PW1 Momin. PW3 stated that in the meanwhile Iqbal, elder brother of Farukh, brought one danda and hit on the hand of Momin. PW3 stated that PW1 Momin started shouting, "BachaoBachao". Qayyum, now deceased, came to save Momin and then Chammu, Kakan, Leela and Sabuddin armed with lathis and sarias came. PW3 stated that accused Chammu inflicted saria blow on the head of PW2 Niazuddin, his brother, due to which PW2 Niazuddin became unconscious. PW3 further stated that they started running and accused persons started pelting stones from their back. PW3 stated that he had also gone to rescue PW1 when he shouted SC No. 38/08 32/47 State Vs. Farukh etc. for help; Niazuddin had also come to the spot. As per PW3, due to the stone pelting by accused Chammu, Kakan, Leela and Sabuddin, they had sustained injuries. PW3 stated of accused Farukh having given a saria blow on the head of Qayyum. PW3 was contradicted on said fact as he had not so stated of accused Farukh having given saria blow on the head of Qayyum in his statement under Section 161 Cr.P.C, Ex PW3/DA, to which he was confronted in the course of cross examination. Also, PW3 somersaulted when cross examined, saying on the earlier date when he was examined in chief then the police officer asked him outside the court to give statement as what was recorded by them and he had accordingly stated in the court. Also, PW3 stated that on the night of occurrence i.e 06/04/95 at 11.15 pm a boy had come to house no. 408, where he was then residing with his maternal grandfather Shamshuddin at Chatterpur and said boy told him about the quarrel and he had reached the place of occurrence when large number of people were gathered there and stones were pelting, while he and other members of their party namely Qayyum, Momin and Niazuddin sustained injuries due to pelting of stones by the crowd. PW3 further elicited that he had not seen the occurrence SC No. 38/08 33/47 State Vs. Farukh etc. as he had stated in his examination in chief for which he explained, he had so stated on the asking of the police officer outside the court. PW3 stated that he had sustained injuries due to pelting of stones by someone whom he had not seen. PW3 was reexamined by Ld. Addl. PP but he stood his ground saying he had not seen the occurrence and denied of the fact of injuries caused on the person of Momin, Niazuddin and Qayyum by accused or that he had changed his version intentionally due to compromise. PW3 even stated that the dandas and sarias, Ex P1 to Ex P5 were so identified by him in his examination in chief as the weapons of offences on the asking of the police officer and there was no specific mark on the dandas and the sarias, while they were commonly available in the market.
29. In the course of cross examination PW2 had been contradicted on various counts. In his previous statement Ex PW2/DA, PW2 had not stated that a quarrel had taken place between Farukh and Momin on 04/04/95; that Chammu gave him a saria blow on his head, due to which he sustained injuries; that after sometime of his rescuing Momin, Leela, Sabuddin, Kakan and Iqbal brought lathis SC No. 38/08 34/47 State Vs. Farukh etc. and sarias; that he ran inside his house on which all accused started pelting stones; that all accused persons were residing in the same street where he resided; that Qayyum died in the hospital who had also sustained injuries, for which facts he was confronted with the aforesaid previous statement and there was no mention of such facts there. PW2 admitted that he had not stated to the police that he saw that Farukh had caught Momin and Iqbal grappled with him when he tried to rescue Momin. PW2 stated that Iqbal came after four minutes of quarrel between Momin and Farukh; the other accused had also come with a gap of around 4/5 minutes of each other; accused persons had not come simultaneously. PW2 further elicited that large number of persons had gathered on the spot from the village; the members of the crowd had started pelting stones and bricks on the persons who were fighting and due to such pelting of stones and bricks, PW2, Sheru, PW3 Gulshan , PW1 Momin and other persons on their side had received injuries. PW3 stated that he could not say which of the person in the crowd had pelted stones and bricks. PW2 further clarified that he had gone inside his house after about 15/20 minutes of the incident and that Qayyum (now deceased), Gulshan, the SC No. 38/08 35/47 State Vs. Farukh etc. injured, had reached the spot much later in time when he went inside his house. PW2 stated that he could not say as to how Qayyum and Gulshan had received injuries because they had come much later to the spot. In terms of the version of PW2, the incident took place in front of the house of Momin in the street, while the house of PW2 was situated in street, opposite the house of Momin. Again, it is reiterated that house of PW1 and PW2 were situated in a street, which street was different from the main road on which the shop of Farukh was located. In the site plan, Ex PW11/F, the place of occurrence is shown at point B on the road in front of shop of accused Farukh, situated at point A and the houses of PWs 1 and 2 are situated in the street which is at the back side location of road having point B, aforesaid, in terms of testimony of PW1.
30. In the course of his cross examination, PW1 Momin admitted that accused Iqbal, Kakan and Farukh had received injuries but he stated that he did not know who had hit the saria on the head of Kakan and of Farukh. PW1 clarified that PW2 Niazuddin, Islamuddin, Sheru, Qayyum, the deceased and PW3 Gulshan had SC No. 38/08 36/47 State Vs. Farukh etc. reached at the spot in about five minutes time after his talk with Farukh started and amongst them initially Qayyum, thereafter PW2 Niazuddin and then Sheru and thereafter Gulshan came. The span of time and manner of arrival of these accused, PW2 and PW3 have been deposed by PW1 in contradiction to the version of PW2, elicited above. PW1 further stated that Islamuddin was already with him from the beginning. PW1 made considerable improvements, accordingly, by deposing aforesaid facts and by saying that the accused persons excepting Farukh reached at the spot at the same time when Niazuddin PW2 and others had reached.
31. PW1 was also contradicted with his previous statement Ex PW1/A where it was not mentioned that Sheru, Gulshan, and Islamuddin had come to rescue PW1. PW1 admitted that he had not told to the police that Islamuddin had received injuries in his head. In Ex PW1/A, PW1 had also not stated to the police that accused Iqbal and Farukh had given lathi blow on Islamuddin for which he was confronted and contradicted with his previous statement Ex PW1/A. PW1 stated that quarrel took place for about 20/25 minutes. PW1 SC No. 38/08 37/47 State Vs. Farukh etc. further admitted that the police had taken him with Kakan, Farukh and Iqbal to the hospital. PW1 clarified that injured Gulshan and Qayyum had gone to the police station to lodge the report and voluntarily added that he had gone to the police station from the hospital. PW1 also admitted that the accused had no enmity with Qayyum and also that no enmity with them also. PW1 stated that on the day of occurrence, quarrel ensued at the spur of moment though there had been a dispute a day earlier to quarrel between him and Farukh which was got settled with the intervention of his brother PW2 and accused Kakan, father of accused Farukh.
32. As the cross examination of PW1 progressed, he voluntarily deposed that no such occurrence of quarrel, as alleged, had taken place at the shop of Farukh saying they were in their street where there is only their house in the street and the quarrel had taken place there. It is again reiterated that the house of PW1 is situated in the street which is different and on the back side of the street/road in front of shop of Farukh as shown at point A in the site plan Ex PW11/F. Qayyum, now deceased, had arrived at AIIMS Hospital in SC No. 38/08 38/47 State Vs. Farukh etc. the night of 05/04/95 at 23:44 hours, as per MLC Ex PW10/A, with alleged history of assault and injury on his head opined as grievous by blunt object, though the size of injury was not mentioned in the MLC. In terms of the postmortem report Ex PW7/A, the external injuries on the person of deceased have been elicited in the preceding paragraphs. The material witnesses examined have testified in contradiction with each other and presented case of prosecution as to how deceased sustained injuries and who assaulted him.
33. In the course of his examination, PW1 stated that all the accused persons started throwing stones and bricks on him and they all sustained injuries. There is no specific mention of any fact of assault by any weapon including sarias, dandas, bricks, or stones by any or all accused on the person of Qayyum. PW2 stated that he had gone inside his house after about 15/20 minutes of the incident, while Qayyum, now deceased, and Gulshan, the injured, had reached at the spot much later in time when he went inside his house and PW2 could not say as to how Qayyum and Gulshan had received injuries. SC No. 38/08 39/47
State Vs. Farukh etc.
34. In his examination in chief, PW3 Gulshan stated that accused Farukh gave saria blow on the head of Qayyum on which fact he was confronted and contradicted with his previous statement Ex PW3/DA given in the course of investigation where there was no mention of such fact. Even in his cross examination, PW3 stated of having not seen the occurrence and was giving hearsay version of occurrence as told to him by a boy at 11.15 pm at his residence, upon which he arrived at the scene of crime. PW3 stated that he as well as Qayyum, now deceased and the injured persons namely PW1 Momin and PW2 Niazuddin had sustained injuries due to pelting of stones by the crowd which had collected at the place of occurrence, names of such persons who held pelted stones were not known.
35. DW2 Sh Yusuf Khan deposed of being resident of F83, Chatterpur and that quarrel had taken at about 10.30 pm on 05/04/95 at Chatterpur between accused Farukh, Kakan and Iqbal on one side and Sheru, Niazuddin PW2 and Momin PW1 on the other side. DW2 stated of having intervened between them and adviced them not to quarrel. Such advice was not heard by those quarreling persons, upon SC No. 38/08 40/47 State Vs. Farukh etc. which DW2 left for his house but came to know later that both the parties had received injuries.
36. In terms of discussion above, it is explicit on face of record that there is no cogent evidence as to who had caused injury on the head of Qayyum, resulting in his death and as to by which weapon of offence it was so caused.
37. The material contradictions and severe infirmities embodied in the testimonies of material witnesses PWs 1,2 and 3 bring these material witnesses in the category of neither wholly reliable nor wholly unreliable witnesses as categorized by their lordship in the case of Vadivelu Thevar v. The State of Madras, AIR 1957 SC 614. Accordingly, this court has to be circumspect and has to look for corroboration by reliable testimonies, direct or circumstantial to base conviction of the accused persons on such testimonies of PWs 1,2 and 3.
38. The scene of crime, as per report Ex PW1/A, was in front SC No. 38/08 41/47 State Vs. Farukh etc. of shop of accused Farukh. House of PW1 Momin was in other lane situated on the back side of the road in front of shop of accused Farukh. In terms of the testimonies of PWs 1 and 2 all accused had not come together with arms nor their acts of alleged assault on the injured and deceased was preconcerted or premeditated. Though the version of the material witnesses regarding the sequence of arrival of accused at the place of occurrence and their return is inter se contradictory but yet fact remains that from entire evidence on record, from any cogent evidence, it could not be gathered or proved from any act of accused, the language of accused, the conduct of the accused, surrounding circumstances and from behaviour of the accused persons at or near the scene of occurrence that they had formed an unlawful assembly and had proceeded for the prosecution of the common object. The material witnesses even admitted collection of the people of locality as crowd at the scene of crime and they having thrown bricks and stones to the persons quarreling. Who pelted the stones amongst the crowd and which stone had hit which of the injured and accused is neither borne out of evidence on record nor proved. There is no cogent or clinching evidence to SC No. 38/08 42/47 State Vs. Farukh etc. substantiate and prove of any weapon of offence used by any or all accused in assaulting Qayyum on his head, causing the fatal injury, while police could remove PW1 and accused Farukh, Kakan and Iqbal to AIIMS Hospital, it remains unexplained as to where Qayyum went from the spot, from the place of occurrence, after the incident. Though PW1 alleges Qayyum with Gulshan had gone to police station for lodging report but PW3 Gulshan did not say so either in his examination in chief or later in his cross examination. Even it is not the case of prosecution that Qayyum had gone to police station first and then to the hospital. MLC, Ex PW10/A finds mention the arrival time of Qayyum recorded at AIIMS Hospital to be 23:44 hours on 05/04/95. PW11 departs police station Mehrauli on receiving of copy of DD No. 18 A and the time of recording of DD No. 18A is 10.58 pm. PW11 speaks of having covered the distance of 67 kilometers on his own two wheeler scooter and reached at the spot at 10.30 pm and then from the spot reached hospital at about 11 pm where he remained there for one hour. If the version of PW11 is presumed true on this count then atleast Qayyum, Momin and Niazuddin must have arrived in the hospital, while PW11 was present SC No. 38/08 43/47 State Vs. Farukh etc. there, as per the arrival time recorded in the MLCs Exts PW10/A, PW10/B and PW10/C. In MLC Ex PW10/D of injured Gulshan, arrival time of injured Gulshan mentioned there is 00:56 hours on 06/04/95 and PW11 claims to have found Gulshan already admitted there. As per PW11, when he reached at AIIMS Hospital, he had met these injured Niazuddin, Momin, Gulshan and Qayyum admitted there and on applications Exts PW11/A to PW11/D, Qayyum was declared unfit for statement and other three injured were declared fit for statement. It was thereafter that PW11, the investigating officer, had recorded statement of Farukh initially, made endorsement, later to which he recorded the statement of Momin, made endorsement and sent the same to police station through PW8 for getting FIR registered. Though PW11 alleges that after reaching hospital at 11 pm, he remained there for one hour but the time of departure of tehrir in Ex PW11/E mentioned there is 1 am on 06/04/95. The treatment papers of deceased Qayyum showing treatment given to him in hospital including surgeries performed have neither been seized nor proved.
39. The story with regard to piecemeal arrival of the SC No. 38/08 44/47 State Vs. Farukh etc. accused and even the fact that in the course of occurrence PW2 had gone inside his house and PW3 Gulshan and Qayyum having come much later, when all these facts are seen together with the other elicited facts of sequence of occurrence narrated by the witnesses, it makes it implicit clear that there existed no unlawful assembly of accused nor in prosecution of any common object any act was committed by any accused. Reliance placed upon the case of Rajinder and Others vs. State of Haryana, 2001 (1) CCC (HC)
362.
40. If for the sake of arguments, the case projected by any of the injured persons is taken as gospel truth, then in the process of separation of the grain from the chaff from the testimonies of the material witnesses, an absolutely new case has to be reconstructed by divorcing essential details presented by the prosecution case completely different from the context and the background against which they are made, the only available course which can be resorted here is to discard their evidence in toto. The elicited discrepancies have corroded the credibility of the material witnesses and henceforth SC No. 38/08 45/47 State Vs. Farukh etc. the presented case of prosecution.
41. In the back drop of the opinion of PW7 that the injuries on the head of deceased Qayyum were possible by fall, his head striking on the hard surface and/or also possible by brick striking the head in the course of brick bating, going to the hospital at the belated stage resulting in continuous internal haemorrhage which may lead to disaster and there being certain chances of saving of life had such injured reported in hospital at earlier point of time; non seizure of medical treatment papers of deceased Qayyum showing treatment given and surgeries performed during his four day admission in hospital; coupled with the discussions of circumstances brought on record and the shaken testimonies of PWs 1,2 and 3 which are neither wholly reliable nor wholly unreliable, not confirming with collateral circumstances as well as probabilities but shrouded with grave suspicion and serious doubts, narrating even the scene of crime in contradiction with each other and with the presented case of prosecution, lead me to conclusion that it would be extremely hazardous to place implicit reliance on such shaken testimonies of SC No. 38/08 46/47 State Vs. Farukh etc. PWs 1,2 and 3 and thereon to convict the accused in the absence of corroboration in material particulars from reliable testimony, direct or circumstantial, for the serious offences in question. The prosecution has not been able to prove its case against the accused persons, beyond reasonable doubt. Accused persons are given benefit of doubt and are accordingly acquitted for the offences charged. Their bail bonds are cancelled and sureties are discharged. File be consigned to the record room.
Announced in the open court (GURVINDER PAL SINGH)
on dated 28/03/2011 ASJ (FTC)/SD/ NEW DELHI
SC No. 38/08 47/47