Nizamuddin vs The State
2009 Latest Caselaw 1290 Del

*            HIGH COURT OF DELHI : NEW DELHI
          Judgment reserved on : March 31, 2009
           Judgment delivered on : April 09, 2009

+                         Crl. Appeal No. 474 of 2006
       Nizamuddin                      ...       Appellant
                                  Through: Ms. Anu Narula,
                                           Advocate
                                  versus
       The State                  ...       Respondent
                                  Through: Mr. Amit Sharma,
                                           Additional Public
                                           Prosecutor for State

CORAM:
HON'BLE MR. JUSTICE SUNIL GAUR

1.      Whether the Reporters of local papers may
        be allowed to see the judgment?

2.      To be referred to Reporter or not?

3.      Whether the judgment should be reported
        in the Digest?

SUNIL GAUR, J.

1. This appeal arises out of trial court judgment of 4th

March, 2006 and order on sentence of 7th March, 2006,

relating to FIR No. 506 of 2004, under Sections

398/394/34 of the IPC, registered at Police Station Kamla

Market, Delhi.

2. The facts emanating from the record of this case are

as under:-

On 14.11.2004, on receipt of DD No. 4B (EX. PW3/A), Sub- Inspector Inderpal Singh along with Constable Vijay, reached JPN Hospital where MLC of the injured-Mohd.

Crl .A. No. 474 of 2006 Page 1 Hussain was obtained. Two other friends of the injured- Mohd. Hussain, namely Abdul Ganny and Shahi were also present. Sub-Inspector Inderpal recorded the statement of Abdul Ganny (EX. PW 4/A) who was also injured, who alleged that the auto driver, along with his associates, had looted them at the point of knife and caused injuries on their person, while they were going to their house. Sub-Inspector Inderpal Singh, Investigating Officer of this case, prepared the Rukka (EX. PW13/A), registered the case, investigated the matter and at the instance of the complainant, arrested the accused. After completion of investigation, Challan was prepared and Charge-Sheet for the offence under Sections 394/398 of Indian Penal Code was filed.

3. The trial court charged the appellant-accused for the

offence under Sections 394/398/34 of the IPC, and

appellant was put to trial as he had pleaded not guilty to

the charge framed against him.

4. Out of the thirteen witnesses examined in this case

by the trial court, the material ones are the injured- Abdul

Guny ( PW-4), Shahid (PW-7) and Mohd. Hussain (PW-9).

Sub-Inspector Inder Pal Singh (PW-13) is the Investigating

Officer of this case.

5. The appellant, in his statement recorded by the trial

court under Section 313 of the Cr.P.C. had claimed that he

was innocent and was falsely implicated in this case.

Appellant and his co-accused had got one witness each

examined in their defence. Appellant's witness- Ram

Kishan (DW-1) has certified that appellant bears good

Crl .A. No. 474 of 2006 Page 2 moral character.

6. Vide impugned judgment of 4th March, 2006 and

Order on Sentence of 7th March, 2006, the trial court has

convicted appellant/accused to RI for seven years and to

pay a fine of Rupees one thousand, under Section 394 of

the IPC r/w Section 398 of the IPC, and in default of

payment of fine, he has been further ordered to undergo

RI for three months.

7. The submissions advanced by both the sides in this

appeal have been pondered over and the evidence on

record has been carefully scanned.

8. Learned Counsel for the appellant contends that the

injured persons PW-4 and PW-9 stopped the three wheeler

scooter (herein after referred to as TSR) at the roundabout

of Minto Road and the said TSR was being driven by the

appellant and the aforesaid injured asked the appellant to

drop them at the RML Hospital and the appellant had

refused as the said hospital was out of way, but the

injured persons and his friend (PW-7) forcibly sat in the

TSR of the appellant and since the appellant did not want

to go to RML Hospital, therefore, he stopped his TSR at the

Police Picket/ Check Post under the Minto Bridge Flyover

and reported this matter to a Constable, who had asked

Crl .A. No. 474 of 2006 Page 3 the appellant to drop them at Irwin Hospital and he

accordingly did it. Learned Counsel for the appellant

further contends that the prosecution witnesses could not

be confronted with the aforesaid defence plea because of

lack of adequate legal assistance.

9. Learned Counsel for the appellant vehemently

contends that the Legal Aid rendered to the appellant

during the trial was highly inadequate, which has caused

great prejudice to the appellant. Learned Counsel relies

upon the two decisions i.e. (1981) 3 SCC 671 and

Criminal Appeal No. 293 of 1999 "Shyam Sunder V.

State" decided on 6th January, 2009 to contend that free

legal representation should be by fairly competent

lawyers.

10. The discrepancy pointed out in the prosecution case

is that injured-PW-4 has stated in his evidence that the

appellant had declared that "jo kuchh bhi hai nikal do"

whereas his brother- PW-9 is silent about it and their

friend PW-7 has stated that the appellant had told injured

PW-9 "maal nikal" This has been pointed out that MLC of

injured PW-9 has not been exhibited by the Doctor -PW-1.

Another discrepancy pointed out in the prosecution case is

that injured (PW-4) has stated in his evidence that they

Crl .A. No. 474 of 2006 Page 4 had gone to the hospital in a TSR whereas his friend PW-7

has stated in evidence that Sardar ji took them to hospital.

It is contended on behalf of the appellant that the First

Information of this incident received vide DD No. 4-B was

of admission of Hussain (PW-9) in injured condition in the

hospital. Lastly, it is asserted that material part of the

prosecution case has not been put to the appellant in his

statement under Section 313 of the Code of Criminal

Procedure and this has caused material prejudice to the

appellant and therefore, the impugned judgment is

unsustainable and it deserves to be set aside.

Alternatively, it is urged that offence, if any, made out

would be assault only and not the offences, for which

appellant has been convicted and appellant has already

undergone RI of five years. Nothing else has been urged

on behalf of the appellant.

11. On behalf of respondent- State, learned Additional

Public Prosecutor submits that the standard of legal

assistance is not of the requisite standard even in the

case of paid counsels and the adequacy of the free legal

assistance rendered, is quite subjective and in the instant

case, simply because the defence of the appellant has not

been put to the witnesses, it cannot be said that the

Crl .A. No. 474 of 2006 Page 5 cross-examination of the witnesses by the Legal Aid

Counsel is not effective. It is pointed out that in the

judgments cited on behalf of the appellant, no relief has

been granted merely on the ground that the free legal

assistance rendered is inadequate. It is next submitted

that the discrepancies pointed out in the prosecution case

are not material ones and the plea of the appellant, now

putforth in appeal, is neither probable nor plausible.

Lastly, it is submitted that specific questions regarding

inflicting of knife blows by the appellant, has not been put

to the appellant in so many words in his statement under

Section 313 of the Cr.P.C. but it is not shown as to what

prejudice has been caused to the appellant on this

account and if the appellant had to say anything on this

aspect, nothing stopped him from stating so in the appeal

before this court. Thus, it is submitted that aforesaid

bonafide omission does not cause any prejudice to the

appellant and there is no merit in this appeal.

12. The prosecution version as noticed by the trial court,

is as under:-

On 14th November, 2004, at about 11:30 p.m., Abdul Gany-Complainant, along with his friends-

Shahid and Mohd. Hussain, had gone to Jama

Crl .A. No. 474 of 2006 Page 6 Majid for shopping on the eve of Eid and at about 1:30 a.m. and they hired a TSR bearing No. DL-1 RE 7307 to go to Dhaulan Kuan in which one person was already sitting and on being assured by the driver that he would get down after some distance, all three of them boarded the TSR. After 10-15 minutes, two more persons boarded the TSR from Daryaganj and said that they will get down at Minto Road. Accused-Nizamuddin was driving the TSR. At the tempo stand at Minto Road, when the TSR was stopped for demand of fare, the driver started quarrelling with his associates. While quarrelling they got down from the TSR and went behind and the driver i.e. the appellant/accused herein, also followed them. After a while appellant/accused- Nizamuddin took out a knife from the dickey of the scooter and pointed towards Abdul Gany and asked "jo kuch bhi hai nikal do". Though he tried to save himself, he sustained injuries on his little left hand finger. When his brother- Mohd. Hussain tried to intervene, knife blows were given on his palm and head by accused-Nizamuddin. In the meanwhile, two persons on their motorcycles came and on seeing them, accused along with his co-accused fled from the spot.

13. It is settled position in law that prosecution has to

stand on its own feet and cannot take advantage of the

weaknesses of defence plea. First of all, I would like to

deal with the discrepancies pointed out in the prosecution

case. This incident was witnessed by Shahid (PW-7) who is

friend of complainant - Abdul Ganny ( PW-4) and his

Crl .A. No. 474 of 2006 Page 7 brother Hussain (PW-9). Infact, in this incident

complainant (PW-4) and his brother (PW-9) had sustained

injuries. As per the narration of the complainant (PW-4), at

the tempo stand of Minto Road, appellant had stopped his

TSR and had demanded the fare from the other

passengers who had started quarrelling with the

appellant/accused and while doing so they went behind

the TSR and after a while, appellant picked up a knife from

the dickey of a scooter (TSR) and pointed knife towards

complainant (PW-4) and had uttered "jo kuch bhi hai nikal

do". In the next breath, complainant (PW-4) has deposed

that he tried to save himself and had sustained injury on

the little finger of his left hand and when his brother,

Mohd. Hussain (PW-9) tried to intervene,

appellant/accused gave knife blows on his head and both

the palms.

14. Eye witness (PW-7) has deposed that appellant/

accused took out the knife from the dickey of his scooter

(TSR) and had put the said knife on the neck of Mohd.

Hussain (PW-9) and had asked " maal nikal" and Hussain

(PW-9) resisted the appellant, who gave knife blow on his

head and when Hussain (PW-9) tried to save himself,

appellant gave another knife blow on the palm of his

Crl .A. No. 474 of 2006 Page 8 hand.

15. Now, what Mohd. Hussain (PW-9) had to narrate in

his evidence, needs to be noticed. He has stated in his

evidence that two more persons had boarded the TSR of

the appellant from Daryanganj and those passengers were

drunk and this witness (PW-9) and his brother (PW-4) had

raised objection to boarding of more passengers in the

TSR and near Kamla Market, appellant stopped his TSR

and talked to those passengers and in the meanwhile

complainant (PW-4) and eye witness (PW-7) got down

from the TSR to hear their conversation and the

appellant took out the knife from the dickey of the TSR

and gave knife blows to Shahid and when this witness

(PW-9) tried to save Shahid and caught hold of appellant's

knife, other person snatched from him and then appellant

gave another knife blow on the head of this witness (PW-

9) and while he tried to save himself, he received another

injury on his left hand. Towards the end of the chief

examination of this witness (PW-9), he has stated as

under:-

"Nizamuddin and Sarju Lal both accused are present in the court and correctly identified by the witness, asked us to hand over the money which we have".

Crl .A. No. 474 of 2006 Page 9

16. Although the above deposition is not happily worded

but what it intends to convey is that this witness (PW-9)

and his companions (PW-4 and PW-7) were asked to hand

over the money which they had.

17. Normally the discrepancies which do not go to the

root of matter are ignored by the courts while keeping in

mind the time lapse and the power of observation of the

witnesses, which differs from person to person. However,

the aforesaid discrepancies assume importance in the

instant case for the reason that the First Information

Report (EX. PW2/A) is based upon the initial statement of

the Complainant (EX. PW-4/A) and one startling feature

noticed in it, is that one line appears to have been

squeezed in, which makes all the difference and is as

follows:-

"vaih khah ki tumahere paas jo maal hai, vaih hamare hawale kar do, vaih isi bitch auto chalak ne auto ki dickey main ek tez dhar hatiyar nikala"

18. If the aforesaid subsequent addition/ insertion in the

initial statement of complainant (PW-4) is excluded, then

the offence would be of criminal assault only. In the normal

course, the benefit of the aforesaid improvement/

assertion would have accrued to the accused, provided the

witness had been confronted with it. Unfortunately, the

Crl .A. No. 474 of 2006 Page 10 cross examination of the star witness i.e. complainant (PW-

4) by the Legal Aid Counsel is too brief and leaves much to

be desired. In any case, without dwelling any further on

this aspect, even if the initial statement of PW-4 is taken

as it is, still it creates reasonable doubt in the mind of the

court regarding the subsequent addition/ insertion made in

his statement.

19. When the discrepancies as highlighted above inter se the

evidence of material witnesses of this case are considered in the

background of the initial statement EX. PW4/A of the complainant

(PW-4), they assume importance in view of the fact that the

general impression given upon reading of the evidence of these

material witnesses i.e. PW-4, PW-7 and PW-9 is that they are not

coming out with the true facts. It is so stated because they do not

state as to what was their reaction when complainant (PW-4) had

allegedly told to hand over whatever they had. The question of

assaulting the injured would arise only upon their refusal to part

with their belongings. It has not been brought out in the evidence

by these material witnesses as to what belongings they were

carrying which impelled the appellant/ accused to allegedly state

"maal nikal".

20. After minutely examining the evidence of the Complainant

(PW-4) his brother (PW-9) and of his friend (PW-7), I find that the

Crl .A. No. 474 of 2006 Page 11 version putforth by them lacks spontaneity and truthfulness so far

as the offence under Section 393/398 of the IPC is concerned.

There is no doubt that the incident had taken place in which

complainant (PW-4) and his brother (PW-9) were injured but the

manner in which this incident took place, has not been clearly

brought out, which creates a reasonable doubt about the veracity

of the prosecution case. The prosecution story is half baked. What

has been deliberately withheld by material witnesses, causes

grave doubt about authenticity of the prosecution version.

21. The above discussed material discrepancy in prosecution

regarding the actual happening of this incident is irreconcilable

and strikes at the root of the prosecution case and persuades this

court to hold that genesis of this incident is shrouded in mystery,

which prosecution fails to unravel.

22. In view of the aforesaid narration, impugned judgment is

rendered unsustainable and is accordingly set aside, by extending

benefit of doubt to the appellant, who is set free by directing his

release from jail, if not wanted in any other case.

23. With the aforesaid directions, this appeal stands allowed.

                                                 SUNIL GAUR, J

April 09, 2009
rs




Crl .A. No. 474 of 2006                                         Page 12