Delhi District Court
The State vs Ashad Mehmood S/O Sh. Nabi Mehmood on 19 March, 2011
1
IN THE COURT OF SH. GURDEEP SINGH
ADDITIONAL SESSION JUDGE-04, NORTH-EAST DISTRICT
KARKARDOOMA COURTS : DELHI
FIR No. : 133/07
PS : Welcome
U/s : 307/506/34 IPC
Unique Case ID : 02402R0 314552007
In the matter of
The State
Versus
1. Ashad Mehmood s/o Sh. Nabi Mehmood
R/o: N-24, Janta Colony
Delhi.
2. Chaman Miyan s/o Sh. Mohammad
R/o: M-7, Janta Colony, Welcome
Delhi.
...ACCUSED
Session Case No. : 73/08
Date of Institution : 20.04.2007
Date of reserving judgment/order : 19.03.2011
Date of pronouncement : 19.03.2011
J U D G M E N T
1. Accused Ashad Mehmood and Chand Miyan were sent up to stand trial by police of PS Welcome for offence punishable u/s 506/34 IPC and 307/34 IPC on the allegation that on 21.2.2007 at about 10:30 p.m. at Idgah Road, open space in front of Janta Colony, Welcome, Delhi accused both accused threatened the injured/complainant Naseem to kill him and thereafter accused FIR No.:133/07, PS : Welcome Page 1 of 9 2 Chaman Miyan gave fist and leg blows on the person of complainant Naseem and accused Ashad Mehmood caused injuries on the person of Naseem with ustra. The nature of injury was given as grievous by doctor. After the completion of the investigation accused were chargesheeted.
2. After supplying the necessary copies, the case was committed to the court of session vide order dated _____ by Ld. Metropolitan Magistrate.
3. My Ld. Predecessor after finding prima-facie offence charged the accused Ashad Mohammad and Chaman Miyan for offences punishable U/s 506 r/w Section 34 IPC and 307 r/w Section 34 IPC vide order dated 17.09.2007 to which they pleaded not guilty and claimed trial.
4. The prosecution in support of their case examined as many as 7 witnesses.
5. The prosecution examined following material witnesses:
i) PW-2 Sh. Naseem Ahmed is the injured and complainant. He supported the prosecution in his examination-in-chief and partly turned hostile towards the prosecution regarding arrest of the accused at his instance. Despite cross-examination by the prosecutor, FIR No.:133/07, PS : Welcome Page 2 of 9 3 he failed to identify the accused persons. He proved his statement as Ex.PW-2/B.
ii) PW-3 Sh. Shamim completely turned hostile towards the prosecution and did not support despite his cross-examination at length.
6. The prosecution also examined following formal witnesses :
i) PW-1 Dr. Santosh, Department of Surgery GTB Hospital proved the MLC of injured Naseem as Ex.PW-1/A which was prepared by Dr. Ram Millan.
As per the surgical record the nature of injury of the patient is grievous.
ii) PW-4 ASI Vijay Pal is the duty officer who recorded FIR of this case on the basis of rukka received from Ct. Devinder sent by Surender Pandey and proved the same as Ex.PW-4/A and he also proved his endorsement as Ex.PW-4/B. He also proved the copy of DD No. 15-A as Ex.PW-4/C regarding the admission of the injured in the hospital.
iii) PW-6 Dr. Parmeshwar Ram, CMO GTB Hospital, Delhi proved the MLC as Ex.PW-1/A which was prepared by Dr. Zothuamlua who observed following injuries :
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a) There was incised wound 5 cm x 1 cm over the right partial bone of skull
b) Incised wound 15 cm x 2 cm extending from the right side of the neck to right maxillary region
c) There was incised wound but due to overlapping of torn paper of MLC, same is not legible.
7. The prosecution also examined following witnesses of investigation :
i) PW-5 Ct. Devinder Kumar is the witness of arrest of accused persons, pointing out, recovery of ustra.
He proved arrest memos of Chaman and Ashad as Ex.PW-2/F and Ex.PW-2/C, their personal search memo as Ex.PW-2/G and Ex.PW-2/D respectively, their disclosure statement as Ex.PW-2/H and Ex.PW-2/E respectively, pointing out by Arshad of the place of recovery of ustra as Ex.PW-2/C and its seizure memo Ex.PW-2/C. He also identified the ustra as Ex.PW-4/Article-1.
ii) PW-7 ASI Surender Pandey is the investigating officer.
He proved his endorsement as Ex.PW-7/A, site plan as Ex.PW-7/B, FSL result as Ex.PW-7/C in addition to other memos. He also identified ustra and blood stained shirt of injured.
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8. The statement of accused were recorded U/s 313 Cr.PC. Accused persons denied the prosecution evidence and claimed innocence.
i) Accused Ashad stated that this is a false case. He has been falsely implicated in this case by the police in collusion with the complainant Naseem. He did not make any disclosure statement and nothing has been recovered at his instance. He is innocent. However, he chose not to lead evidence in his defence.
ii) Accused Chaman stated on the line of statement of accused Ashad.
9. I have heard Sh. Virender Singh, Ld. Addl. PP and Sh. Chandrakar Mishra, Advocate on behalf of accused persons. I have also gone through the record.
10. PW-2 Sh. Nasim Ahmed testified that on 21.02.07, he was driving the qualis of his cousin brother Shamim. On that day, at about 10.30 PM, he was sitting in the qualis car at Idgah road in a vacant place near Janta Colony and in the meantime, accused Chaman and Arshad who are present in the court today, came there in the drunk condition and in the meantime, two more persons also came there, who were the friends of Chaman and Arshad. Chaman told him to give Rs. 1000/- per week to park the vehicle at that vacant place. He told him that he is a driver and FIR No.:133/07, PS : Welcome Page 5 of 9 6 this matter, may be discussed with his brother Shamim, who was the owner of the qualis. In the meantime, Chaman told to his accomplice that "dekhte kya ho, ise gadi se nikal ke khatam kar do" and the other companion who dragged him outside the qualis from the driver seat and Chaman started gave him leg and punch blows and accused Ashad who was having the ustra in his hand inflicted the same on his head, neck, ear, my cheek as well as near his eyes. Accused inflicted the same about five times on him with intend to kill him and caused him injuries on his neck, ear, head, cheek and near eyes. Thereafter, they left from there and they considered him as dead. He had also became unconscious. His cousin brother Shamim reached there and took him to the GTB Hospital. He knows the accused Chaman and Ashad as they are also residing in the Janta Colony. IO of this case met him in the hospital and recorded statement. However, his further examination-in-chief is deferred as he was not felling well and on the next date when he appeared for his further examination-in-chief he stated that he does not want to say anything else. He was cross-examined by the prosecutor and stated that he has not given any supplymentary statement and nothing was recovered from possession of the accused persons in his presence. He further denied the suggestion that accused Ashad and Chaman were arrested in his presence and confessed the crime and ustra was recovered at the instance of accused Ashad near the wall of the garbage. He further admitted that his FIR No.:133/07, PS : Welcome Page 6 of 9 7 blood stained clothes were seized and memos bears his signature and voluntarily stated that the police obtained his signatures on some papers in the hospital. He was cross-examined by the counsel for accused. In his cross-examination he stated that there were four/five persons involved in the quarrel and he had not given description of the assailant to the IO in his statement. He admitted that he could not see the faces of the assailants properly. Some public persons told him the name of those assailants as Chaman and Ashad. They were not known to him previously. He has identified accused Chaman and Ashad first time in the court and the police officials had told him that they are Ashad and Chaman. He was re-examined by the prosecutor but despite his re-examination he did not support the prosecution. He denied that Ashad and Chaman are well known to him and he had named them in the complaint or that he had identified them. PW-3 Sh. Shamim is completely turned hostile. PW-2 is the material witness who is injured. He identified the accused perons and named them but stated on the asking of the police officials and they were not known to him and name of the accused were given by the public persons.
11. On the other hand PW-5 Ct. Devinder Kumar testified that injured had come alongwith IO to the spot and they reached at Idgah at the instance of the injured/complainant and apprehended accused persons Ashad and Chaman and they made disclosure FIR No.:133/07, PS : Welcome Page 7 of 9 8 statement and Ashad got recovered ustara from kuredan. Ustara was having blood stains. PW-7 ASI Surender Pandey similarly corroborated PW-5 Ct. Devinder regarding arrest of the accused persons at the instance of the injured/complainant. Injured PW-2 Sh. Nasim Ahmed categorically denied that accused persons were arrested at his instance. Further alleged ustara having blood stains was recovered at the instance of accused Ashad soon after the incident but it was not having any human blood which creates doubt about the same whether it was the same ustara which was used in the offence.
12. Moreover, the testimonies of eye witnesses and injured is shaky and he has turned hostile towards the prosecution regarding arrest of the accused persons. Therefore it creats doubt in favour of the accused persons whether they are the same persons who had caused injuries to the injured or were arrested at the instance of injured. Since material witnesses have turned hostile towards the prosecution and did not support despite their cross-examination at length, I am of the opinion that evidence on record is insufficient to record conviction.
13. Therefore, as per discussion above, I am of the opinion that prosecution has failed to prove their case against the accused persons beyond reasonable doubt. Therefore accused persons are entitled to benefit of doubt. Accordingly accused Ashad FIR No.:133/07, PS : Welcome Page 8 of 9 9 Mehmood and Chaman Miyan are acquitted of charges. Their bailbond stand cancelled. Surety discharged. Case property if any be destroyed after the expiry of period of appeal. File be consigned to record room.
Announced in the open court today i.e on 19.3.2011 GURDEEP SINGH ASJ-04/NE/KKD/DELHI.
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