Delhi District Court
State vs Mohd. Hussain @ Kaliya on 15 January, 2014
IN THE COURT OF SH. NARINDER KUMAR
ADDITIONAL SESSIONS JUDGE (CENTRAL): DELHI
SC No.2/13
FIR No.177/12
PS Ranjit Nagar
U/s 304 IPC
State
Versus
Mohd. Hussain @ Kaliya,
S/o Mohd. Saleem,
R/o E95, K.P. Colony,
Delhi. .......Accused
Date of institution : 14.01.2013
Date of Judgment : 15.01.2014
J U D G M E N T
Mohd. Hussain @ Kaliya (accused) was sent up for trial for an offence U/s 304 IPC. Accusation levelled against him is that on 17.09.2012 at about 2.00 p.m., on Main Patel Road, near Metro Station Patel Nagar within the jurisdiction of PS Ranjit Nagar, he gave kick and fist blow to Zabir, aged 30 years, a rickshaw puller and son of 1 complainant Sh. Nazir, as a result whereof he suffered from respiratory failure and died.
2. Case came to be registered on the statement of Sh. Nazir, father of the deceased. He made statement before SI Ranveer Singh of PS Ranjit Nagar on 21.09.2012.
As per version of the complainant, given to the police in his statement dt.21.09.2012, on 17.09.2012 at about 2.00 p.m. he was present under Metro Station Patel Nagar with his rickshaw. Zabir, his son, also reached there with his rickshaw. After some time, accused also arrived there with his rickshaw. The accused asked Zabir to remove his rickshaw, a little ahead, but Zabir refused to do so. Thereupon the accused alighted from his rickshaw and started giving fist and kick blows to Zabir. However, matter was pacified with his intervention (intervention of the complainant) and other rickshaw pullers.
Further, according to the complainant, after sometime the accused came there with his rickshaw and started giving beatings to Zabir. He then managed to escape. As a result of beatings, Zabir fell down on the pedestrian way. He was removed to RML Hospital where he was medically treated. In the morning of 18.09.2012, his son was discharged from the hospital.
Further, according to the complainant, on 19.09.2012, Zabir, 2 complained of pain in his stomach and as such, he was again taken to RML Hospital. However, Zabir died at the hospital on the same day at 3.15 p.m. Initially DD no.59B was recorded at PS Ranjit Nagar, on receipt of information, from the Ct. Rajinder, present on duty at the hospital regarding admission of Zabir at the hospital in injured condition, by his father after a quarrel. This DD entry was assigned to SI Ranveer Singh. SI Ranveer Singh, on having reached the hospital, collected MLC of Zabir. The injured was declared fit to make statement. So, the Sub Inspector recorded statement of the injured wherein he stated about the manner in which he was given beatings by the accused and further that when the accused begged for pardon, the matter was amicably settled. Since the injured did not intend any legal action, the DD entry was filed.
Thereafter, DD no.26B came to be recorded at PS Ranjit Nagar on20.09.2012 at 12.50 p.m. The information received vide this entry from Duty Ct. Rajinder of RML Hospital was that the injured, got readmitted at the hospital on 19.09.2012, had died during treatment. Once again the matter was assigned to SI Ranveer Singh and that is how the Sub Inspector reached the hospital.
SI Ranveer Singh collected all the documents from the hospital vide which the doctor had declared Zabir dead. The dead body was got 3 removed to DDU Hospital and got preserved there. On the request of the IO, the dead body was subjected to autopsy. After the autopsy was over, the SubInspector collected from the doctor, blood sample of the deceased and sample seal of the hospital whereas the dead body was delivered to the relatives of the deceased.
It was thereafter that SI Ranveer Singh recorded statement of complainant Nazir, which led to registration of this case.
During investigation, SI Ranveer visited the place of occurrence and at the pointing out of complainant, prepared rough site plan. Despite search, accused was not traceable. Wife of the accused informed the police that he had not visited his house for the last 23 days. Ultimately on 22.09.2012, on the basis of secret information, accused was arrested from his house i.e. H.No.E95, Kathputali Colony, Delhi. On completion of investigation, challan was put in court.
3. Copies of documents relied upon by the prosecution were supplied to the accused free of costs U/s 207 Cr.P.C. Case came to be committed to the Hon'ble Court of Session.
Charge
4. Prima facie case having been made out, charge for an offence U/s 304 Part - II of IPC was framed against the accused on 14.02.2013, to which he pleaded not guilty and claimed trial. Thereupon, prosecution 4 was called upon to lead evidence.
Prosecution Evidence
5. In order to prove its case prosecution examined, following 15 witnesses: PW1 HC Ravi Kumar To prove recording of FIR.
PW2 Dr. Komal Singh To prove autopsy report Ex.PW2/A.
PW3 Dr. Yashwant To prove report dt.17.09.2012
Ex.PW3/A.
PW4 Dr. Aarti, To prove medical record Ex.PW4/A
and Ex.PW4/B.
PW5 Sh. Nazir, complainant An eye witness to the occurrence.
PW6 Dr. Sailesh To prove death report Ex.PW6/A.
PW7 Ct. Rajinder Singh Who was serving as Duty Constable at
RML Hospital during the relevant
period.
PW8 Dr. Rana Anil Kumar To depose about medical examination Singh of Zabir of 17.09.2012 and that he remained under treatment of Dr. Aarti.
PW9 Mohd. Habib An eye witness to the occurrence.
PW10 Ct. Vithal Who got the accused medically
examined on 22.09.2012.
PW11 Ct. Ravinder Who participated in the investigation.
PW12 Ct. Ravinder Who also joined the investigation.
PW13 Inspector Mahesh, To prove scaled site plan Ex.PW13/A Draughtsman depicting the place of occurrence.
PW14 Mohd. Naushad Another eye witness.
PW15 SI Ranveer IO of the case.
5
Statement of Accused
6. When examined U/s 313 Cr.P.C. the accused persons denied all the incriminating circumstances appearing in evidence against him and claimed false implication.
As per plea put forth by the accused, he never plied cycle rickshaw and as such there was no question of his having reached Metro Station Patel Nagar with any rickshaw or to have beaten Zabir. He also denied even second limb of the occurrence. In th is way, he pleaded false implication. But has led no evidence in defence.
7. Arguments heard. File perused.
Arguments
8. It has been contended by learned counsel for the accused that there is sole statement of the complainantfather of the deceased regarding the manner in which the occurrence took place as the other alleged eye witnesses Mohd. Habid and Mohd. Naushad have not supported case of prosecution. Reference has also been made to the statements of PW9 and PW14 who have not supported the case of prosecution and rather come up with the version that there statements were not recorded by the police and that they had not witnessed the occurrence.
Learned defence counsel has submitted PW9 and PW14 are closely related to the complainant and the deceased and there was no reason for 6 them not to support the complainant.
Assailing the testimony of complainant, learned counsel for the accused has submitted that investigating officer did not join in investigation any person to prove that any rickshaw was hired by the complainant or his son or the accused on the given date so as to lend corroboration to the prosecution version regarding quarrel over parking of rickshaw and as such the same adversely affects the case of prosecution.
It has been pointed out by learned defence counsel that according to the complainant, he informed the police from the spot whereupon police reached there and he and his son were taken to hospital. As submitted by learned defence counsel, according to the IO, he straightway reached the hospital where he met injured and his father. As per MLC injured was brought to the RML hospital by his father. The contention is that this material contradiction also creates doubt in the version narrated by complainant.
The other contention raised by learned defence counsel is that this is a case where there is no corroboration from independent source and that the IO did not join any person from the shops near the place of occurrence in support of the version narrated by the complainant, and that absence of corroboration from independent source also adversely affects the case of prosecution.
7
On the other hand, learned Addl. PP has submitted that version of the complainant from the very beginning is that on the date of occurrence he and his son were with their own rickshaws and it is only in cross examination he stated that he used to hire rickshaw. The contention is that simply because investigating officer did not investigate as to from whom any such rickshaw was hired by the complainant and his son, testimony of PW5 complainant cannot be rejected.
Medical Evidence
9. Medical evidence is available in the statements of PW2 Dr. Komal Singh, PW3 Dr. Yashwant, PW4 Dr. Aarti, PW6 Dr. Sailesh and PW8 Dr. Rana Anil Kumar Singh.
From the medical report proved by PW3 and PW4, it stands established that on 17.09.2012 patient Zabir S/o Nazir R/o C83, Kathputali Colony, Shadipur, New Delhi was brought to RML hospital by his father. At the time, PW4 Dr. Aarti observed tenderness all over the abdomen and pain in abdomen and on the right side of frontal region. The doctor advised xray chest and abdomen; CT Scan of brain; ultrasound of abdomen and blood investigation.
As per PW4 Dr. Aarti, Zabir was brought to the hospital on 17.09.2012 at about 8.25 pm. On the basis of result of tests advised by her, everything having been found normal, the patient was discharged on 8 18.09.2012.
Even according to PW3 Dr. Yashwant on medicolegal examination of Zabir, he found that there was tenderness in the abdomen; patient also complained of pain on the right side of the skull i.e. frontal region and also in the abdomen.
It is the statement of PW6 Dr. Sailesh that as per medicolegal examination, on 19.09.2012 when Zabir was got admitted in Dr. Durga Unit of the hospital, the patient died on the same day at 3.15 pm while he was lying admitted in the said unit. Death report is Ex PW6/A. Autopsy on the dead body was conducted on 21.09.2012. In the opinion of PW2 Dr. Komal Singh, the cause of death was respiratory failure subsequent to pulmonary infarct developed as secondary complication to blunt traumatic injury leading jejunal (intestine) perforation.
PW2 has proved on record his report Ex PW2/A. It is in his cross examination that time that elapsed between death and postmortem examination was 34 hours.
As is further available from the statement of PW2, there was no intestinal pathology which could lead to the perforation of jejunal itself. This kind of perforation is possible only as a result of of blunt force impact imparted directly over the abdomen, as further opined by the doctor.
9
From the above, prosecution has established that Zabir died on 19.09.2012 because of respiratory failure subsequent to perforation.
10. Main stay of the prosecution is on the statement of PW5 Nasir, father of Zabir as other eye witnesses PW9 Mohd. Habib and PW14 Naushad have not supported the case of prosecution.
According to PW5 Nazir, on 17.09.2012 at about 2 pm, he was present near Metro Station Patel Nagar with his rickshaw. Zabir, his son was also present there, having parked his rickshaw nearby. Mohd. Hussain @ Kaliya accused came there with his rickshaw. Accused then asked Zabir to remove his rickshaw but the latter refused to do so. Thereupon the accused started beating Zabir.
According to PW5, he intervened and pacified the matter. At that time, accused pushed him and went away with his rickshaw. However, 5 minutes later on, he returned to the same place with his rickshaw and started beating his son, giving kicks and fist blows, resulting in his fall on the pedestrian way.
Further according to the witness, when he tried to save his son, accused gave him beatings as well. As a result, his three teeth were broken and fell down. Then the accused ran away. It is in the statement of PW5 that he rang the police whereupon police reached there and removed him and his son to RML Hospital and got Zabir admitted there.
Further, according to PW5, in the morning his son was discharged 10 from the hospital, but on reaching home, his son complained of pain in stomach and as a result again he had to be removed to RML Hospital and got admitted there. Zabir died in the hospital at 3.15pm.
11. As per prosecution version occurrence took place on 17.09.2012 at about 2 pm, FIR Ex PW1/A came to be registered at 4 pm on 21.09.2012 on the statement of PW5/A i.e. of Nazir recorded on 21.09.2012 i.e. after the death of Zabir on that date.
It is case of the prosecution that on receipt of information vide DD No.29B SI Ranveer reached RML Hospital and found Zabir injured fit to make statement and then he recorded his statement but no action was taken as the injured stated that the matter has been amicably settled.
12. Learned defence counsel has pointed out that no such statement, stated to have been recorded by the IO has been placed or proved on record and that nonproduction of that statement also creates doubt in the prosecution version.
13. Initially on 17.09.2012 DD No. 59B was recorded at PS Ranjit Nagar on the basis of information received from duty constable Rajinder regarding admission of Zabir son of Nazir R/o C83, Kathputali Colony, Shadipur, New Delhi, after a quarrel under Metro Station, Patel Nagar. Copy of this entry is Ex PW1/D. It came to be assigned to SI Ranveer Singh. SI accompanied by Ct. Vithal reached the hospital, where Zabir 11 was found lying admitted. SI then recorded statement of Zabir which was declared fit to make statement.
That statement made by Zabir has not been brought or proved on record by the prosecution. SI Ranveer while appearing in Court stated about recording of statement of Zabir at RML on 17.09.2012 but no such statement has been proved on record. SI Ranveer admitted in his cross cross examination that said statement of Zabir has not made part of this challan. According to the SI, Zabir stated to him about the scuffle which had taken place between him and the accused on 17.09.2012 and further that the matter was settled between them. Nonproduction of statement of Zabir adversely affects the case of prosecution. Prosecution has also failed to place on record the outcome of DD No.59B to the fact that no action was taken when Zabir allegedly stated that the matter was settled between him and the accused for relation to the scuffle which took place between him and the accused on 17.09.2013. Nonproduction of proceedings recorded by SI Ranveer vide DD No. 59B also adversely affect the case of prosecution.
Even if prosecution has failed to produced and proved on record statement of Zabir made before SI Ranveer on 17.09.2012. SI Ranveer Singh could record state of his father present at the hospital but there is no explanation for nonrecording of statement of PW3 Nazir, father of Zabir. 12 As per prosecution when Zabir was brought to the RML hospital on 17.09.2012, his father Nazir was accompanying him. Then SI Ranivr should have recorded statement of Nazir regarding the occurrence. But there is nothing on record to suggest that statement of Nazir was recorded by the SI or that Nazir made any statement before SI Ranveer regarding the occurrence on 17.09.2012. Nonrecording of statement of Nazir creates doubt if he was a witness to any such quarrel or scuffle.
It is in the statement of SI Ranveer that there are shops at a distance of 50 meters from the place of occurrence. He further admitted that temporary shops used to be run near metro station. He denied that commercial complex are situated in front of place of occurrence. But the fact remains that SI did not join any shop keeper in the investigation to verify the version narrated by Nazir on 21.09.2012.
According to SI Ranveer, he joined many rickshaw puller in investigation and recorded statement of rickshaw pullers who were ready and willing to make statement but did not record statements of those rickshaw pullers who were not ready and willing to make any statement. There is nothing in the statement of SI Ranveer that he proceeded against the persons who refused to make statement about the occurrence.
PW9 & PW 14
14. Prosecution examined PW9 Mohd. Habib and PW14 Mohd. 13 Naushad to lend corroboration to the version of prosecution but none of them has supported the case of prosecution.
According to PW9 Mohd. Habib, one day at about 6 am, he received a phone call from his wife, who called her from village Jakoli, District Darbhanga, Bihar. She told him about death of Zabir, their covillager. So, he accompanied by 45 others reached the hospital situated near Gole Market and there they met Nazir and other persons. There, he came to now that Zabir had died in an incident of maarpitai. After having met Nazir and other, they returned from the hospital.
PW9 denied to have witnessed any occurrence. He stated to have made statement before police only regarding phone call which he received from his wife. Since PW9 did not support the case of prosecution, learned Addl. PP for State put leading question, after seeking permission from the Court. When so examined, witness admitted that during the relevant period, he used to ply maalrickshaw in Delhi whereas Nazir and his son used to ply cycle rickshaw to carrying passengers. But he denied that on 17.09.2012 accused came near Metro Station with his rickshaw or asked Zabir to remove his rickshaw from there and on his refusal a quarrel took place between the two or that they intervened and sorted out the matter. He denied that after sometime, accused returned to the spot gave kick and fist blows on the person of Zabir and banged him on the pavement and 14 fled away from the spot. The witness was confronted with his previous statement Ex PW9/PX but he denied to have made any such statement.
PW14 Mohd. Naushad is another rickshaw puller by profession. According to him on 17.09.2012 at about 1.15 1.30 pm, his rickshaw was hired and he took a passenger from Patel Nagar Metro Station to Ramjas Road, Karol Bagh. He returned to Metro Station Patel Nagar at about 5 pm. The witness, however, displayed ignorance about the present case. When he stated that he knew nothing about the case, learned Addl. PP put leading questions to the witness after seeking permission from the Court. But the witness denied to have made any statement before the police. It is in his statement that Nazir is his maternal uncle and surprisingly, the witness stated that his maternal uncle wants him to be a witness in this case but he refused. Nazir then asked him to allow his name to be mentioned but he objected even to this. Had the PW witnessed any such occurrence, he being closely related to Nazir and Zabir must have supported the case of prosecution.
Even otherwise, it may be mentioned here that in his statement Ex PW5/A made before the police, PW5 Nazir nowhere stated that the occurrence was witnessed by PW9 and PW14. In the given situation, when PW9 and PW14 have not supported the case of prosecution, non joining of persons from the locality or from the shops situated nearby 15 adversely affects the case of prosecution.
15. Learned counsel has referred to the chief examination of the complainant wherein he stated that during the occurrence he lost three teeth, but IO did not find or seize any tooth from the spot. Further, it has been pointed out that this fact stated by the complainant in his chief examination does not find mention in statement Ex PW5/A which he made before the police and as such, it can safely be said that the witness has made improvement on material aspects of this case to falsely implicate the accused.
Learned defence counsel has further pointed that according to the complainant he was medically examined at Sardarvallabh Bhai Patel Hospital and that his son was also examined at a private hospital but prosecution has not examined any doctor of the said hospital in support of this version narrated by the complainant, which also creates doubt in prosecution story.
On the other hand, learned Addl. PP has submitted that according to the complainant, no medical legal certificate was prepared at the private hospital and as such nonproduction of any such medical record does not effect the case of prosecution.
16. As per statement of PW5 Nazir made in Court his three teeth got broken as a result of beatings by the accused. But statement Ex PW5/A 16 does not contained any version that accused had beaten this witness (Nazir) or that as a result thereof his teeth got broken. It is not case of the prosecution that any tooth was recovered from the spot. Prosecution has not placed on record any MLC regarding medical examination PW5 Nazir to lend corroboration to the version narrated by him him.
In his cross examination, PW5 stated that he was medically treated at Pahari hospital, which is a government hospital, in the area of Patel Nagar, but no MLC was prepared. It is not that he did not apprise the doctor of the occurrence and the manner in which he lost his tooth. According to PW5, he had very well apprised the doctor about this. Had it been so, the doctor must have medicolegally examined him. Investigating officer must have also got him so examined. But since there is no such medical record, it is difficult to believe the version narrated by PW5 that he too suffered injuries during the occurrence.
According to PW5, some other rickshaw wala accompanied him and his son to hospital. But as per medical record, Zabir was brought to the hospital by Nazir, his father. It does not depict name of any other present accompanied him. Prosecution has also not examined any other rickshaw wala to lend corroboration to the statement of PW5 Nazir in this regard.
Furthermore, as regards readmission of Zabir on 19.07.2012, PW5 stated that in the evening at about 7 pm he took his son to a nursing home 17 as his son had complained pain in his stomach. During the night, they stayed at Nursing Home. However, prosecution has not led any evidence to suggest as to at which Nursing Home, Zabir and his father so stayed during the period. According to PW5, he had paid the bill. No such bill was produced before the Investigating officer.
17. There no medical evidence as to what medical treatment was provided to Zabir during the night. According to PW5, he removed his son to RML in the morning when doctor of the Nursing Home advised him for his referral to some other hospital. In absence of any medical record of any Nursing Home, it can safely be said that prosecution has failed to substantiate the version narrated by PW5 Nazir regarding admission of his son at any such Nursing Home and his referral to RML from any such Nursing Home.
It has been pointed out by Learned defence counsel that the complainant filed a criminal complaint before the Court not only against the present accused but also against three others assailants in connection with the present crime. The contention is that this fact also creates doubt if occurrence actually took place in the manner narrated by the complainant in Court or in the manner narrated by the police.
On the other hand, learned Addl. PP has submitted that even if the complainant filed criminal complaint against four persons, same does not 18 adversely affect the case of prosecution as even in the criminal complaint, complainant specifically named the accused as one of the culprits.
However, learned defence counsel has referred to para 4 of the complainant wherein, it stands recorded that police did not record his statement and those of the eye witnesses. The contention is that in this way complainant has not supported the prosecution version as regards version put forth in Ex PW5/A is concerned.
18. As per prosecution version, case was registered at the statement Ex PW5/A made by PW5 Nazir but while appearing in Court as PW5 Nazir expressed his dissatisfaction with investigation conducted by the police stating that case was registered not under Section 302 IPC. He admitted to have filed a criminal complaint in Court against four accused alleged commission of offence under Section 302IPC. Copy of the complaint is Ex PW5/DA.
In his cross examination, PW5 stated that when the accused came to the spot, for the second time, he was accompanied by his parents. But this fact does not find mention in his statement Ex PW5/A. When statement Ex PW5/A made before the police was read over to the witness, surprisingly he stated that it was not read over to him by the police. He volunteered that he had named four others as accused, but police removed names of other accused persons and arrayed only Mohd. Hussain as 19 accused.
Had it been so, while making statement in his chief examination, he would have narrated the manner in which not only accused but his parents and another committed crime. However, in his chief examination, he did not name anyone as accused other than the present accused. There is no explanation in this regard.
Complainant has not placed on record to suggest that feeling aggrieved by the investigation, he ever reported the matter to the senior police officers or complained against the IO for having let off or excluding names of three accused persons. All this creates doubt in the version narrated by PW5 Nazir.
Conclusion
19. In view of above discussion, this Court finds that prosecution has failed to establish beyond doubt the accusation leveled against the accused that it is he who gave beatings or that injuries suffered in any such incident on 17.09.2012 and led to death of Zabir on 19.09.2012. Accused is therefore entitled to benefit of doubt. Extending benefit of doubt, he is acquitted int his case.
Case property be confiscated to state and then disposed of in accordance with rules on expiry of period for appeal/Revision, if none is preferred, or subject to decision thereof.
File be consigned to record room.
Announced in Open Court
on 15.01.2014 (Narinder Kumar )
Additional Sessions Judge(Central)
Delhi.
20