Delhi High Court
Mohd. Amir vs State on 17 October, 2014
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 17th October, 2014
+ CRL.A. 1195/2011
MOHD. AMIR ..... Appellant
Through: Mr. Vineet Mehta, Advocate
versus
STATE ..... Respondent
Through: Ms. Ritu Gauba, Additional Public
Prosecutor for the State along with SI
Padam Singh, Police Station Kamla
Market.
CORAM:
HON'BLE MS. JUSTICE SUNITA GUPTA
JUDGMENT
: SUNITA GUPTA, J.
1. The challenge in this appeal is to the judgement dated 1st
September, 2011 vide which the appellant was convicted under
Section 308 IPC and order on sentence dated 3 rd September, 2011
vide which he was sentenced to undergo rigorous imprisonment for a
period of two years in addition to payment of fine of Rs.2000/- in
default to undergo simple imprisonment for three months in Sessions
Case No.05/10 arising out of FIR 109/2009 u/s 307 IPC Police Station
Kamla Market.
2. Prosecution case lies in a narrow compass. On 22nd August,
2009, Mohd. Arshim was flying kite when accused Amir raised
objection regarding flying kite from his roof. He started abusing the
injured and pushed him due to which Mohd. Arshim fell down from
the roof. He was removed to hospital where his MLC was prepared.
During the course of investigation, accused was arrested. After
completion of investigation, charge sheet was submitted under
Section 307 IPC.
3. Charge for offence under Section 307 IPC was framed against
the accused to which he pleaded not guilty and claimed trial.
4. In order to substantiate its case, prosecution examined in all 11
witnesses. The accused denied the case of prosecution and took a plea
of alibi by stating that he had gone for training at Institute of Driving,
Training & Research, Wazirabad Road adjoining Loni Road Flyover,
Delhi where he was undergoing training from 22nd August, 2009 to
24th August, 2009 along with his brother Mohd. Mustaq and returned
to his house after training at 8-8:30 PM. He examined himself
besides examining his brother Mohd. Mustaq and Dy. Director of the
Institute Naresh Kush. Vide impugned judgment, learned Additional
Sessions Judge convicted the appellant by observing that the
prosecution had succeeded in establishing that due to act of the
accused, the injured sustained dangerous injuries. The accused had
failed to prove the plea of alibi.
5. Challenging the findings of the learned Trial Court, the present
appeal has been preferred.
6. Assailing the findings of the learned Trial Court, learned
counsel for the appellant submitted that as per the initial version given
by the complainant, the accused objected as to why the injured was
flying kite from his roof. However, the complainant PW-1 in his
cross-examination by learned Additional Public Prosecutor for the
State admitted that injured was not flying kite from the roof of the
accused. As such, there is no reason as to why the accused would
object to the flying of the kite from the adjoining roof. Moreover,
according to PW1-Mohd. Rashid, Mohd. Danish and Mohd. Rahil
were also flying kites with injured. His testimony does not find
corroboration from PW2-injured who does not say that Mohd. Danish
and Mohd. Rahil were also flying kite with him. Presence of the
complainant at the spot was also doubtful because if he had seen his
brother falling from the roof, he would have been the first person to
remove him to hospital but as per his own version, the injured was
removed to hospital by neighbours. Referring to the testimony of
PW4-Mohd. Danish, it was submitted that he does not speak about the
presence of PW1 at the spot and according to him, complainant
reached the spot when the incident had already taken place.
Moreover, according to this witness, the injured was taken to the
hospital by the complainant which fact is belied by the complainant
himself who deposed that he became perplexed and neighbours
removed the injured to hospital. Moreover, according to this witness,
he thereafter left the spot and his statement was recorded subsequently
on 17th January, 2010, however, according to the complainant, police
recorded the statement of Mohd. Rahil and Mohd. Danish in his
presence in the hospital itself. Even this witness admits that the roof
from where injured was flying kite was not belonging to the accused
but to one Titoo, therefore, no motive could be attributed to the
appellant. He also referred to the site plan Ex.PW10/B to show that
the injured had not fallen from the roof of the accused. Reference was
also made to the MLC to show that initially, when patient was
brought to the hospital, it was recorded that it was a case of „fall from
roof‟. It was only subsequently at the instance of PW5 maternal uncle
of the injured that it was converted into a case of MLC. As per the
Doctor, the injured was conscious and oriented but he never disclosed
to the Doctor that he was pushed by the accused. It was submitted
that as per the testimony of PW5 he was informed by Rafia regarding
the incident but she was never examined. It was further submitted that
the injuries sustained by the injured were accidental inasmuch as it
has come in the evidence that there was no staircase for going to the
roof and for going to the roof, support of a wooden ladder or bricks
used to be taken. Therefore, while going to the roof, the injured
accidentally fallen down and sustained injuries. Lastly it was
submitted that by cogent and convincing evidence, the appellant had
proved that he was not present at the spot. Besides himself, he had
also examined his brother and the Dy. Director of the Institute but
their testimony was brushed aside by the learned Trial Court only on
the ground that there was no mention in the document that the training
was from 9:00 AM to 5:00 PM. Director of the Institute was an
independent witness and there was no reason to discard his testimony.
As such, it was submitted that the impugned judgment is liable to be
set aside and the appellant be acquitted of the offence alleged against
him.
7. Per contra, it was submitted by Ms. Ritu Gauba, learned
Additional Public Prosecutor for the State that the case depends on
ocular testimony of PW1, PW2, PW4 and PW5 which find
corroboration from the medical evidence adduced by PW3. Due to
previous enmity, there was intention on the part of the accused to kill
the injured as he wanted to resist PW2 from flying kite from his roof
and thereafter pushed him from the roof. As per the report of the
Doctor N.K. Barman, the injuries were dangerous. Charge sheet was
filed by the police under Section 307 IPC and charge was also framed
under Section 307 IPC but the learned Additional Sessions Judge
converted the case into a minor offence by convicting the accused
under Section 308 IPC. It was submitted that the Court has ample
power under Section 386(e) Cr.P.C. to enhance the sentence suo
motto after giving right of hearing to the accused. It was further
submitted that the injury was so grave that the injured became
unconscious on the spot itself. Lastly, it was submitted that the
compensation be awarded to the injured under Section 357(3) Cr.P.C.
to the tune of Rs.2 lacs.
8. I have given my considerable thoughts to the respective
submissions of learned counsel for the parties and have carefully
perused the record.
9. There is no dispute that injured Arshim was flying kite on 22nd
August, 2009 at the roof and had fallen from the roof as a result of
which he sustained injuries, which were opined to be dangerous. The
sole question for consideration is whether the injuries sustained by
him were accidental or due to pushing by the accused.
10. The material witnesses are PW1-Mohd. Rashid, PW2-Arshim,
PW4-Mohd. Danish and PW5-Mohd Akhlaq. Besides that as regards
the medical evidence, there is the testimony of PW3-Dr. N.K. Barman
and PW9-Dr. Arvind Mohan.
11. As per the testimony of PW9 Dr. Arvind Mohan, on 23 rd
August, 2009, a patient, namely, Arshim, S/o Rafi aged about 19
years was brought by his uncle Akhlaq. He was first brought to the
Casualty with alleged history of "fall from roof" at 5:30 PM and was
attended in the Casualty at 7:00 PM. He was thereafter referred to
Neuro-Sugery Emergency for further management. Condition of the
patient at the time of arrival was "conscious oriented". Later on it
was revealed by "brought by uncle" that patient fell from roof during
a fight with his neighbours so the case was converted into MLC at
12:00 AM on 23rd August, 2009.
12. According to PW5-Mohd. Akhlaq, maternal uncle of Arshim,
on 22nd August, 2009 at about 6-6:30 PM, he received telephone call
from his niece Rafia that Amir had thrown Arshim from the roof and
Arshim had been taken to LNJP hospital and his condition was
critical. On receipt of this information, he went to LNJP hospital and
found that no treatment was given to Arshim. Thereafter, he was
informed by the Doctor that it was a police case, then he made a call
at 100 number and informed the police.
13. On receipt of information, DD No. 29-A, Ex.PW10/A was
recorded at Police Station Kamla Market which was assigned to
PW10, SI Jaipal Singh who along with Constable Surender reached at
LNJP Hospital where he found injured Arshim admitted in the
hospital who was declared unfit for statement but by that time, his
MLC was not prepared. Mohd. Rashid, brother of the injured was
present in the hospital whose statement Ex.PW1/A was recorded.
After recording the statement, endorsement Ex.PW10/A was made
and as per the endorsement the place of occurrence was "House No.
2648 Mohalla Niharia, Delhi". The time of incident was alleged to be
6:30 PM and the FIR Ex.PW6/A was recorded at 11:50 PM.
Thereafter during the course of investigation, site plan Ex. PW10/B
was also prepared. As per this site plan, the place of incident was "3rd
floor of house No. 2601", the house of the accused was 2602 while
the house of the complainant/injured was 2648 which was at the back
of the aforesaid two houses.
14. During the course of deposition, PW1-Mohd.
Rashid/complainant deposed that on 22nd August, 2009, he was sitting
on the roof of his house. His younger brother Mohd. Arshim was
flying kite from the roof of the neighbouring house. Mohd. Amir
asked his brother as to why he was flying kite from the roof of the
neighbouring house and abused him then the accused pushed his
brother from the roof who fell down on the ground and became
unconscious. He got perplexed. Mohalla people took his brother to
the hospital. He informed the relatives and also went to the hospital
where he came to know that MLC of his brother was not prepared by
that time. His maternal uncle Mr. Akhlaq got prepared MLC of his
brother. His statement Ex.PW1/A was recorded by the police. The
witness was declared hostile by the prosecution and in cross-
examination, he deposed that the roof from where his brother was
flying kite was not belonging to the accused and that this roof from
where his brother was flying kite was adjoining the roof of the house
of accused. The presence of the witness and narration of the incident
given by him seems to be doubtful, inasmuch as, as per his own
version, he was sitting on the roof of his house bearing 2648, Mohalla
Niharia whereas his brother Mohd. Arshim was flying kite from the
roof of house No. 2601. As per the site plan, House No. 2648 is at the
back of house No.2601, therefore, it seems highly improbable that the
conversation which allegedly took place between the accused Amir
and his brother would be heard by this witness. Moreover, he being
the real brother of the injured would be the first person to remove him
to the hospital but that was not done, instead, the injured was
removed, as per his version, by the mohalla persons. Furthermore, a
suggestion was given to this witness that the relation between the
parties were not cordial inasmuch as the house in which the
complainant along with his injured brother and family members used
to reside, belonged to the nanihal of the accused and accused and his
family members used to go to his house for realising rent and there
used to be altercation between the elder members of the family of the
complainant and the accused which was denied by the witness,
meaning thereby that according to this witness, there was no previous
enmity between the complainant and the accused. Furthermore, as per
his own version, his brother was not flying kite from the roof of the
accused but the roof was of somebody else, therefore, it is not
understandable as to what objection the appellant would have if
Arshim was flying kite from the house of neighbour.
15. According to PW2-Arshim, who is the injured, when he was
flying kite from the roof of the neighbouring house at about 5:30 PM,
accused came on the roof and abused him as to why he was present
over there and threatened to kill him. When he objected, then accused
pushed him from the roof as a result of which he fell down and
became unconscious. He regained consciousness in the hospital. He
admitted in cross-examination that his brother was on the roof of his
house. There is no staircase for going to the roof and for going to the
roof one has to take support of a wooden fatta. He, however, denied
the suggestion that while trying to climb the roof with the help of
wooden fatta, which became unbalanced, he fell down and sustained
injuries.
16. PW4-Mohd. Danish was alleged to be present at the roof from
where Arshim was flying kite. According to this witness, on 22 nd
August, 2009, at about 6:00 PM, he along with Rahil and Arshim was
flying kite on the roof of one Titoo. In the meanwhile, accused came
on the roof and started abusing Arshim which was objected by him.
Thereafter accused slapped Arshim and pushed him from the roof and
Arshim fell down on the roof of adjoining house and became
unconscious. He sprinkled water on Arshim in order to regain his
consciousness but in vain. Brother of Arshim arrived and took him to
hospital. He thereafter left. This witness also admitted in cross-
examination that the roof on which they were flying kites was not of
accused Amir. He also admitted that there is no permanent staircase
for going to the roof and they used to climb the roof with the help of
wooden plank or by holding bricks. According to him, his statement
was recorded by the police on 17th January, 2010. He admitted that he
did not accompany Arshim to hospital.
17. Mohd. Rahil who was also allegedly flying kite with Arshim
on the roof has not been examined by the prosecution.
18. A perusal of the testimony of these witnesses goes to show that
the same lack corroboration, inasmuch as, neither the complainant nor
his brother Amir speaks about presence of Mohd. Danish or Mohd.
Rahil when Arshim was flying kite on the roof. Further, according to
the complainant, statement of Mohd. Danish was recorded by the
police in the hospital itself whereas according to Mohd. Danish, it was
recorded on 17th January, 2010. Even if it is considered that these are
minor contradictions and should not be given undue credence, even
then, the medical evidence coming on record raises a suspicion as to
whether the sequence of events projected by the prosecution regarding
the complicity of the accused in the crime is credible or not, inasmuch
as, while according to complainant, the injured was removed to
hospital by the mohalla persons, however, none of the mohalla
persons has been examined by the prosecution. On the other hand, as
per the testimony of PW9 Dr. Arvind Mohan, the injured was brought
to the hospital by his uncle Akhlaq. At that time, the alleged history
of "fallen from roof" was given. That being so, even the MLC of the
injured was not prepared. It was only subsequently that the uncle of
the injured disclosed that the patient fell from roof during a fight with
his neighbours and, as such, it was converted into an MLC and
thereafter police machinery swung into action. Even at that time,
although as per the testimony of PW5, Mohd. Akhlaq, he was
informed by his niece that Arshim had been thrown from the roof by
Amir, yet his name was not disclosed to the doctor. The
circumstances that the complainant himself was at the roof of his own
house and, therefore, the possibility of his witnessing the incident or
at least hearing the conversation between the accused and the injured
was quite remote coupled with his conduct that he himself did not
remove the injured to the hospital cast a serious doubt regarding his
presence at the roof. Furthermore, presence of Danish at the roof is
again doubtful in view of the fact that testimony of injured is
completely silent regarding his flying kite along with Amir and Rihal.
Moreover, angle of enmity which was tried to be set up by the
accused has been denied by the complainant and his brother.
Therefore, motive on the part of the accused is not proved. It is true
that in a case based on direct evidence, motive does not assume much
significance but in the factual scenario of the present case, when the
testimony of the prosecution witnesses is not consistent and cogent,
motive assumes significance which is lacking.
19. Admittedly, there was no permanent staircase for going to the
roof and a temporary ladder or bricks were used for accessing the
roof. Dr. N.K. Barman has also not denied the possibility of fall if a
person tried to climb on a wooden plank.
20. Last but not the least, there is delay in lodging FIR which has
not been satisfactorily explained. The incident allegedly took place at
about 5:30 PM but FIR came to be recorded only at 11:50 PM. In
criminal trial, one of the cardinal principle is registration of earliest
information as FIR.
21. In Lalita Kumari vs. Govt. Of Uttar Pradesh and Ors., (2014)
2 SCC 1, Hon‟ble Supreme Court observed that the object sought to
be achieved by registering the earliest information as FIR is inter alia
two fold:- One, that the criminal process is set into motion and is well
documented from the very start; and second, that the earliest
information received in relation to the commission of a cognizable
offence is recorded so that there cannot be any embellishment, etc.,
later. In case there is delay in lodging the FIR, the Court looks for
plausible explanation for the delay in lodging the report. The reason
is obvious. Delay sometimes affords opportunity to the complainant
to make deliberation upon the complaint and to make embellishment
or even make fabrications. Delay defeats the chance of the unsoiled
and untarnished version of the case to be presented before the Court at
the earliest instance. That is why if there is delay in either coming to
the police or before the Court, the Court always views the allegations
with suspicion and looks for satisfactory explanation. If no such
explanation is found, the delay is treated as fatal to the prosecution
case.
22. In Thulia Kali v. The State of Tamil Nadu, (1972) 3 SCC 393,
it was held that the delay in lodging the first information report quite
often results in embellishment as a result of afterthought. On account
of delay, the report not only gets bereft of the advantage of
spontaneity, but also danger creeps in of the introduction of coloured
version, exaggerated account or concocted story as a result of
deliberation and consultation.
23. In Ram Jag and Ors. v. The State of U.P., (1974) 4 SCC 201,
the position was explained that whether the delay is so long as to
throw a cloud of suspicion on the seeds of the prosecution case must
depend upon a variety of factors which would vary from case to case.
Even a long delay can be condoned if the witnesses have no motive
for implicating the accused and/or when plausible explanation is
offered for the same. On the other hand, prompt filing of the report is
not an unmistakable guarantee of the truthfulness or authenticity of the
version of the prosecution.
24. In the case of Jai Prakash Singh v.State of Bihar & Anr., 2012
CRI.L.J.2101 the Supreme Court held:
"The FIR in criminal case is vital and valuable piece of evidence though
may not be substantive piece of evidence. The object of insisting upon
prompt lodging of the FIR in respect of the commission of an offence is to
obtain early information regarding the circumstances in which the crime
was committed, the names of actual culprits and the part played by them
as well as the names of eye-witnesses present at the scene of occurrence.
If there is a delay in lodging the FIR, it looses the advantage of
spontaneity, danger creeps in of the introduction of coloured version,
exaggerated account or concocted story as a result of large number of
consultations/deliberations. Undoubtedly, the promptness in lodging the
FIR is an assurance regarding truth of the informant's version. A promptly
lodged FIR reflects the first hand account of what has actually happened,
and who was responsible for the offence in question."
25. The cumulative effect of all the circumstances narrated above
raises a suspicion regarding the prosecution version that it was due to
pushing by accused that the injured fell down and sustained injuries
and that it was not a case of accidental fall.
26. Furthermore, the accused has taken a plea of alibi on the
ground that he was not present at the spot on the date of incident as he
had gone for training at Institute of Driving, Training and Research at
Wazirabad Road on 22nd August, 2009 and 24th August, 2009 and he
used to return home at about 8:00-9:00 PM. In order to substantiate
this plea, he examined himself as DW2 and deposed that he had
undergone the training of First Aid requisite for the post of conductor
from Red Cross Bhawan, Golf Links, New Delhi-110003 from 25th
June, 2009 to 2nd July, 2009. After completion of training and after
clearing test, he was awarded certificate, Ex.DW2/A from St. John
Ambulance Association, Delhi Centre on 3rd July, 2009. He further
deposed that he applied for the post of conductor at the institute of
Driving, Training and Research at Wazirabad Road and undertook the
said training from 22nd August, 2009 to 24th August, 2009. After
completion of training, he was issued certificate Ex.DW2/C. He
underwent the said training along with his brother Mohd. Mushtaq.
The training was from 9:00 AM to 5:00 PM. They used to return
home from the training institute by 8:30-9:00 PM. In support of his
defence, he examined his brother DW1 Mohd. Mushtaq who also
deposed that he along with his brother had undergone Conductors‟
Training at Institute of Driving, Training and Research at Wazirabad
Road, Delhi from 22nd August, 2009 to 24th August, 2009. The
training was from 9:00 AM to 5:00 PM. He also proved the
certificate Ex.PW1/A awarded to him after completion of training.
Accused also examined DW3-Sh. Naresh Kush who was working as
Dy. Director at the Institute of Driving, Training & Research managed
by Maruti Suzuki at Wazirabad Road, Delhi. According to him, the
certificate Ex.DW1/A and Ex.DW2/C were issued by Mr. Mahesh
Rajoria, the Director of the aforesaid Institute. He further deposed
that the training was from 9:00 AM to 5:00 PM. However, although
on the second day of training, the training finished by 1:30 PM but the
candidates were asked to wait till 4:00-4:30 PM when their
certificates were to be handed over to them. On the basis of
certificates, he deposed that Mohd. Amir and Mohd. Mushtaq had
undergone badge training on 22nd August, 2009 and 24th August, 2009
at the Institute (23rd August, 2009 was a holiday being Sunday).
Although it was rightly observed by learned Additional Sessions
Judge that when a plea of alibi is taken by the accused, same is
required to be proved by the accused. However, according to learned
Additional Sessions Judge, the appellant failed to prove the plea of
alibi as there was no documentary evidence to show that the training
used to continue till 5:00 PM or that he was not present in his house
on the date of incident. From the certificates which were duly proved
from the testimony of DW3-Naresh Kush, Dy. Director of the
Institute of Driving, Training and Research, it was proved that the
appellant and his brother were undergoing training at the aforesaid
Institute. Although it is true that there is no documentary proof to
show that the training continued till 5:00 PM. At the same time,
testimony of DW3-Sh. Naresh Kush who is a totally independent
witness and was working as Dy. Director in the institute cannot be
lightly brushed aside. That being so, if the accused was undergoing
training at the institute which was upto 5:00 PM at Wazirabad, then
the possibility of his presence at Mohalla Niharia, Kamla Market at
5:30 PM is highly doubtful.
27. It is true that circumstances alleged by the prosecution give rise
to a suspicion against the appellants but suspicion howsoever strong it
may be, is not enough to justify conviction of the appellant. There is
a long distance between „may have‟ and „must have‟ which distance
must be traversed by the prosecution by producing cogent and reliable
evidence.
28. As far back as in the year 1957, Hon‟ble Supreme Court in
Sarwan Singh Rattan Singh v. State of Punjab, AIR 1957 SC 637
observed that there may be an element of truth in the version of
prosecution against accused and considering as a whole, the
prosecution story may be true; but between 'may be true' and 'must be
true' there is inevitably a long distance to travel and the whole of this
distance must be covered by legal, reliable and unimpeachable
evidence before the accused can be convicted. It was further observed
that degree of agony and frustration may be caused to the families of
the victim by the fact that heinous crime may go unpunished but then
the law does not permit the Courts to punish the accused on the basis
of moral conviction or on suspicion alone. The burden of proof in
criminal trial never shifts and it is always the burden of the
prosecution to prove its case beyond reasonable doubts on the basis of
acceptable evidence and in case of doubt, accused is entitled to get
benefit of the same. This view was reiterated in Kavinder and Ors vs.
State (NCT of Delhi) 2005 (1) Acquittal 262; Mohd. Sahid vs. State
2014(2) JCC 1305 and Sukh Charan and Hargovind @ Pappu vs.
The State MANU/DE/3353/2009.
29. Accordingly, the appeal is allowed and the impugned judgment
dated 1st September, 2011 and order on sentence dated 3rd September,
2011 are set aside. Appellant is acquitted of the offence alleged
against him.
30. The sentence of the appellant was suspended vide order dated
26th September, 2011. His personal bond is cancelled and the surety
stands discharged.
Trial Court record along with the copy of the judgment be sent
back.
( SUNITA GUPTA)
JUDGE
OCTOBER 17, 2014
rs
