Delhi District Court
Fir No. 1067/2014 Ps Uttam Nagar State vs . Abdul Vihed & Ors Page 1 Of 15 on 28 November, 2022
IN THE COURT OF SH. MANISH KHURANA
ADDITIONAL SESSIONS JUDGE-04, WEST DISTRICT
TIS HAZARI COURTS : DELHI
CNR No.DLWT01-000285-2015
SC No. 56075/2016
FIR No. 1067/2014
PS : Uttam Nagar
U/s : 308/323/34 IPC
State
Vs.
1. Abdul Vihed
S/o Sh. Mohd. Farooq
R/o B-626, JJ Colony, Hastsal,
Uttam Nagar, Delhi
2. Vajed
S/o Sh. Mohd. Farooq
R/o B-21, JJ Colony, Hastsal,
Uttam Nagar, Delhi
3. Sakir @ Kali
S/o Mohd. Farooq
R/o B-21, JJ Colony, Hastsal,
Uttam Nagar, Delhi
4. Sakir @ Zakir
S/o Sh. Mohd. Farooq
R/o B-21, JJ Colony, Hastsal,
Uttam Nagar, Delhi
5. Salman
S/o Sh. Jalaludeen
R/o B-21, JJ Colony, Hastsal,
Uttam Nagar, Delhi
FIR No. 1067/2014 PS Uttam Nagar State Vs. Abdul Vihed & Ors Page 1 of 15
Date of Institution of case : 20.02.2015
Date of decision : 28.11.2022
Final order : All accused persons acquitted for
offence punishable u/s 308/323/34 IPC
JUDGMENT
1. Brief facts of the case are that on 15.09.2014 DD No. 75A was marked to SI Brahm Prakash who alongwith Ct. Devender went to the place of occurrence i.e. B-21, Gali No. 3, JJ Colony, Hastsal, Uttam Nagar. At the spot, the aforesaid police officials met Dharmender s/o Mahipal, Arti w/o Dharmender and Sunny s/o Dharmender in injured condition. The aforesaid persons were sent to DDU hospital through Ct. Devender. Thereafter, SI Brahm Prakash also went to DDU hospital. In the said hospital SI Brahm Prakash collected the MLCs of aforesaid injured persons. In the said hospital SI Brahm Prakash recorded the statement of Dharmender. On the basis of the statement made by Dharmender and contents of MLCs, SI Brahm Prakash prepared rukka and rukka was handed over to Ct. Devender who went to PS, got the FIR registered. After registration of FIR, the investigation was marked to IO SI Brahm Prakash. During investigation, IO prepared the rough site plan of the case of the occurrence. During investigation, IO has effected the arrest of accused Abdul Vihed and also seized the baseball bat at the instance of accused Abdul Vihed. During investigation accused Salman and Sakir @ Zakir surrendered themselves in the Court. IO after seeking permission from the concerned court effected the arrest of accused persons namely Salman and Sakri @ Zakir and recorded their disclosure statements and also obtained their PC remand. During PC remand IO FIR No. 1067/2014 PS Uttam Nagar State Vs. Abdul Vihed & Ors Page 2 of 15 had also seized one baseball bat. As accused Vajed and Sakir @ Kala were admitted to anticipatory bail, IO had effected their formal arrest. During investigation, IO had obtained the result on the MLCs of injured persons and upon completion of investigation, prepared chargesheet for the offences punishable u/s 308/323/34 IPC against the accused persons.
2. The charge-sheet was filed before concerned Ld MM/Ld Duty MM on 07.01.2015. Vide order dated 11.02.2015 passed by Ld. MM, the present case was committed to the Court of Sessions in accordance with Section 323 Cr.P.C for 20.02.2015 and on 20.02.2015 the present case was assigned to the Sessions Court for trial.
3. On 09.07.2015, order on charge was passed by Ld. Predecessor and charge for offence punishable under Section 308/323/34 IPC was framed against the accused persons namely Abdul Vihed, Vajed, Sakir @ Kali, Sakir @ Zakir and Salman. The charge was read over and explained to all the accused persons in vernacular and they were asked as to whether they want to plead guilty or claim trial. After understanding the charge, all the accused persons pleaded not guilty and claimed trial.
4. Thereafter, the prosecution has examined PW1 Sh. Dharmender, PW2 Ms. Isha, PW3 Smt. Arti, PW4 Bobby and PW5 Sunny.
5. The brief of the testimonies of the prosecution witnesses examined during trial are as under:-
6. PW1 Sh. Dharmender deposed that he had been residing at R/o B-35, J.J Colony, Hastal, Uttam Nagar, Delhi and he had been running a tent shop and on 15.09.2014, on or about 9 PM, he alongwith his family members were present outside their house and were talking to each other and suddenly, some unknown persons came there and started quarreling with each other. He further deposed that in order to intervene in the said FIR No. 1067/2014 PS Uttam Nagar State Vs. Abdul Vihed & Ors Page 3 of 15 quarrel, he and his family members tried to separate the said boys but the said unknown boys assaulted him and his family members as a result of which he received injuries over his head and his wife also received injury over her leg and his children had also received injuries. He further deposed that they were taken to hospital by neighbours and were medically examined. He further deposed that the accused persons present in court had no role in assaulting him and his family members and in fact the accused persons were his neighbours and they had not assaulted him or any of his family members.
7. Since this witness was allegedly resiling from his previous statement made before police, Ld. Additional PP for the State cross examined this witness after seeking permission from the Court. During his cross- examination, PW1 identified his signatures at point A on the statement Ex.PW1/A on the basis of which FIR is registered. He volunterred that he had not made any such statement before the police and when he signed at point A nothing was written on this document and that he had stated to the police the same facts which he had deposed above and he had never named any of the accused persons being the assailants. The statement Ex.PW1/A was read over to the PW1 and PW1 denied having made any such statement before the police or stated any such facts to the police. PW1 denied that he had stated in statement Ex.PW1/A that while he was present outside their house and his daughter Isha was also present outside their house, accused Salman, Sakir and Kaale had used abusive language against his daughter and when his son Bobby objected to it and asked them to leave the said place, the aforesaid accused persons started assaulting his son Bobby or that when he or his another son Sunny tried to save his son Bobby, rather accused persons namely Vajed, Abdul FIR No. 1067/2014 PS Uttam Nagar State Vs. Abdul Vihed & Ors Page 4 of 15 Vahed, Zakir and Sakir @ Kali also reached there armed with dandas or that accused Salman struck danda over his head or that when his wife Aarti tried to intervene, accused Abdul Vahid struck danda over the leg of his wife and also torn the Baniyan of his son Sunny or that accused Zakir struck some sharp edged object over the left side of chest of his son Sunny or that in the said assault, the chain of his daughter Isha also fell or that he had specifically stated that Salman Sakir @ Zakir, Sakir @ Kali, Vajid and Abdul Wahid had assaulted him and his family members or that he wanted legal action against them. PW1 was confronted with portion A to A1 of statement Ex.PW1/A where the aforesaid facts including the names of accused persons and their roles played in the commission of offence have been found specifically recorded. The supplementary statement dated 16.09.2014 of witness was also read over to him (PW1) and witness (PW1) denied having made any such statement before the police. PW1 denied that on the said day, he joined the investigation of the present case with IO SI Brahm Prakash or that on that day, IO had prepared site plan at his instance or that on that day, accused Abdul Vahid led them to his house and got recovered one baseball from the back of the door of his house or that IO seized the said baseball bat in his (PW1's) presence. Confronted with portion A to A1 of statement Mark PW1/A where the aforesaid facts have been found specifically recorded. PW1 stated that he could not identify any baseball bat as no such bat was recovered in his presence. PW1 denied that he was intentionally not supporting statement Ex.PW1/A and statement Mark PW1/A being won over by accused persons or having entered into out of court settlement with them. PW1 further denied that he was intentionally not identifying the accused persons being the assailants or FIR No. 1067/2014 PS Uttam Nagar State Vs. Abdul Vihed & Ors Page 5 of 15 intentionally not identifying the said baseball bat being won over by the accused persons. PW1 denied that he was deposing falsely. This witness was not cross examined by Ld defence counsel.
8. PW2 Ms. Isha deposed that she had been residing at R/o B-35, J.J Colony, Hastal, Uttam Nagar, Delhi and on 15.09.2014, on or about 9 PM, she alongwith her family members were present outside their house and were talking to each other and suddenly, some unknown persons came there and started quarreling with each other. She further deposed that in order to intervene in the said quarrel, she and her family members tried to separate the said boys but the said unknown boys assaulted her and her family members as a result of which her father Sh. Dharmender had received injuries over his head and her mother also received injury over her leg and her other siblings also received injuries. She further deposed that they were taken to hospital by neighbours and were medically examined. She further deposed that the accused persons present in court had no role in assaulting her and her family members and in fact the accused persons were her neighbours and they had not assaulted her or any of her family members.
9. Since this witness was allegedly resiling from his previous statement made before police, Ld. Additional PP for the State cross examined this witness after seeking permission from the Court. During her cross- examination, PW2 denied to have made any statement u/s 161 Cr.P.C dated 03.11.2015 Mark PW2/A before the police or stated any such facts to the police. She denied that she had stated in statement Mark PW2/A that while he was present outside her house and her father Sh. Dharmender was also present outside their house, accused Salman, Sakir and Kaale had used abusive language against her and when her FIR No. 1067/2014 PS Uttam Nagar State Vs. Abdul Vihed & Ors Page 6 of 15 brother Bobby objected to it and asked them to leave the said place, the aforesaid accused persons started assaulting her brother Bobby or that when her father or her brother Sunny tried to save her brother Bobby, in the meantime, accused persons namely Vajed, Abdul Vahed, Zakir and Sakir @ Kali also reached there armed with dandas or that accused Salman struck danda over the head of her father or that when her mother Smt. Aarti tried to intervene, accused Abdul Vahid struck danda over the leg of her mother and also torn the Baniyan of her brother Sunny or that accused Zakir struck some sharp edged object over the left side of chest of her brother Sunny or that in the said assault, her chain also fell or that I had specifically stated that Salman Sakir @ Zakir, Sakir @ Kali, Vajid and Abdul Wahid had assaulted her and her family members or that she wanted legal action against them. PW2 was confronted with portion A to A1 of statement Mark-PW2/A where the aforesaid facts including the names of accused persons and their roles played in the commission of offence have been found specifically recorded. PW2 stated that she could not identify any baseball bat even if shown to her as no such bat was recovered in her presence. She denied that she was intentionally not supporting statement Mark-PW2/A being won over by accused persons or having entered into out of court settlement with them. She denied that she was intentionally not identifying the accused persons being the assailants or intentionally not identifying the said baseball bat being won over by the accused persons. She denied that she was deposing falsely. This witness was not cross examined by Ld defence counsel.
10.PW3 Smt. Aarti deposed that she had been residing at B-35, J.J Colony, Hastal, Uttam Nagar, Delhi and on 15.09.2014, on or about 9 PM, she alongwith her family members were present outside their house and FIR No. 1067/2014 PS Uttam Nagar State Vs. Abdul Vihed & Ors Page 7 of 15 were talking to each other and suddenly, some unknown persons came there and started quarreling with each other. She further deposed that in order to intervene in the said quarrel, she and her family members tried to separate the said boys but the said unknown boys assaulted her and her family members as a result of which her husband Sh. Dharmender had received injuries over his head and she had also received injury over her leg and her children had also received injuries. She further deposed that they were taken to hospital by neighbours and were medically examined. She further deposed that the accused persons present in court had no role in assaulting her and her family members and in fact the accused persons are her neighbours and they had not assaulted her or any of her family members.
11.Since this witness was allegedly resiling from his previous statement made before police, Ld. Additional PP for the State cross examined this witness after seeking permission from the Court. During her cross- examination, PW3 denied to have made any statement u/s 161 Cr.P.C dated 16.09.2014 Mark PW3/A before the police or stated any such facts to the police. PW3 denied that she stated in statement Mark PW3/A that while she was present inside their house and her husband Sh. Dharmender was present outside their house and upon hearing the noises, she came outside and saw that accused Salman, Sakir and Kaale had used abusive language against her husband and when her son Bobby objected to it and asked them to leave the said place, the aforesaid accused persons started assaulting her son Bobby or that when her husband and her son Sunny tried to save her son Bobby, in the meantime, accused persons namely Vajed, Abdul Vahed, Zakir and Sakir @ Kali also reached there armed with dandas or that accused Salman FIR No. 1067/2014 PS Uttam Nagar State Vs. Abdul Vihed & Ors Page 8 of 15 struck danda over the head of her husband or that when she tried to intervene, accused Abdul Vahid struck danda over her leg and also torn the Baniyan of her son Sunny or that accused Zakir struck some sharp edged object over the left side of chest of her son Sunny or that in the said assault, the chain of her daughter Isha also fell or that she had specifically stated that Salman Sakir @ Zakir, Sakir @ Kali, Vajid and Abdul Wahid had assaulted her and her family members or that she wanted legal action against them. PW3 was confronted with portion A to A1 of statement Mark-PW3/A where the aforesaid facts including the names of accused persons and their roles played in the commission of offence have been found specifically recorded but she denied the same. PW3 further deposed that she could not identify any baseball bat even if shown to her as no such bat was recovered in her presence. She denied that she was intentionally not supporting statement Mark PW2/A being won over by accused persons or having entered into out of court settlement with them. She denied that she was intentionally not identifying the accused persons being the assailants or intentionally not identifying the said baseball bat being won over by the accused persons. She denied that she was deposing falsely. This witness was not cross examined by Ld defence counsel.
12.PW4 Sh. Bobby deposed that she had been residing at B-35, J.J Colony, Hastal, Uttam Nagar, Delhi and on 15.09.2014, on or about 9 PM, he alongwith his family members were present outside their house and were talking to each other and suddenly, some unknown persons came there and started quarreling with each other. He further stated that in order to intervene in the said quarrel, he and his family members tried to separate the said boys but the said unknown boys assaulted him and his FIR No. 1067/2014 PS Uttam Nagar State Vs. Abdul Vihed & Ors Page 9 of 15 family members as a result of which his father Sh. Dharmender received injuries over his head and his mother also received injury over her leg and his other siblings also received injuries. He further deposed that they were taken to hospital by neighbours and were medically examined. He further deposed that the accused persons present in court had no role in assaulting him and his family members and in fact the accused persons were his neighbours and they had not assaulted him or any of his family members.
13.Since this witness was allegedly resiling from his previous statement made before police, Ld. Additional PP for the State cross examined this witness after seeking permission from the Court. During her cross- examination, PW4 denied to have made the statement u/s 161 Cr.P.C dated 16.09.2014 Mark PW4/A before the police or stated any such facts to the police. PW4 denied that he had stated in statement Mark- PW4/A that while he was present outside their house and his father Sh. Dharmender was also present outside their our house, accused Salman, Sakir and Kaale had used abusive language against his sister Isha and when he objected to it and asked them to leave the said place, the aforesaid accused persons started assaulting him or that when his father or his brother Sunny tried to save him, in the meantime, accused persons namely Vajed, Abdul Vahed, Zakir and Sakir @ Kali also reached there armed with dandas or that accused Salman struck danda over the head of his father or that when his mother Smt. Aarti tried to intervene, accused Abdul Vahid struck danda over the leg of his mother and also torn the Baniyan of his brother Sunny or that accused Zakir struck some sharp edged object over the left side of chest of his brother Sunny or that in the said assault, chain of his sister Isha also fell or that he had FIR No. 1067/2014 PS Uttam Nagar State Vs. Abdul Vihed & Ors Page 10 of 15 specifically stated that Salman Sakir @ Zakir, Sakir @ Kali, Vajid and Abdul Wahid had assaulted him and his family members or that he wanted legal action against them. PW4 was confronted with portion A to A1 of statement MarkPW4/A where the aforesaid facts including the names of accused persons and their roles played in the commission of offence have been found specifically recorded but he denied the same. PW4 further deposed that he could not identify any baseball bat even if shown to him as no such bat was recovered in his presence. He further denied that he was intentionally not supporting statement Mark PW4/A being won over by accused persons or having entered into out of court settlement with them. He denied that he was intentionally not identifying the accused persons being the assailants or intentionally not identifying the said baseball bat being won over by the accused persons. He denied that he was deposing falsely. This witness was not cross examined by Ld defence counsel.
14.PW5 Sh. Sunny deposed that he had been residing at B-35, J.J Colony, Hastal, Uttam Nagar, Delhi and on 15.09.2014, on or about 9 PM, he alongwith his family members were present outside their house and were talking to each other and suddenly, some unknown persons came there and started quarreling with each other. He further deposed that in order to intervene in the said quarrel, he and his family members tried to separate the said boys but the said unknown boys assaulted him and his family members as a result of which his father Sh. Dharmender received injuries over his head and his mother also received injury over her leg and his other siblings also received injuries. He further deposed that they were taken to hospital by neighbours and were medically examined. He further deposed that the accused persons present in court FIR No. 1067/2014 PS Uttam Nagar State Vs. Abdul Vihed & Ors Page 11 of 15 had no role in assaulting him and his family members and in fact the accused persons were his neighbours and they had not assaulted him or any of his family members.
15.Since this witness was allegedly resiling from his previous statement made before police, Ld. Additional PP for the State cross examined this witness after seeking permission from the Court. During her cross- examination, PW4 denied to have made the statement u/s 161 Cr.P.C dated 16.09.2014 Mark PW5/A before the police or stated any such facts to the police. PW4 denied that he had stated in statement MarkPW5/A that while he was present outside their house and his father Sh. Dharmender was also present outside their house, accused Salman, Sakir and Kaale had used abusive language against his sister Isha and when his brother Bobby objected to it and asked them to leave the said place, the aforesaid accused persons started assaulting Bobby or that when his father and he tried to save Bobby, in the meantime, accused persons namely Vajed, Abdul Vahed, Zakir and Sakir @ Kali also reached there armed with dandas or that accused Salman struck danda over the head of his father or that when his mother Smt. Aarti tried to intervene, accused Abdul Vahid struck danda over the leg of his mother and also torn his Baniyan or that accused Zakir struck some sharp edged object over the left side of his chest or that in the said assault, chain of his sister Isha also fell or that he had specifically stated that Salman Sakir @ Zakir, Sakir @ Kali, Vajid and Abdul Wahid had assaulted him and his family members or that he wanted legal action against them. PW5 was confronted with portion A to A1 of statement Mark-PW5/A where the aforesaid facts including the names of accused persons and their roles played in the commission of offence have been found FIR No. 1067/2014 PS Uttam Nagar State Vs. Abdul Vihed & Ors Page 12 of 15 specifically recorded. PW5 further deposed that he could not identify any baseball bat even if shown to him as no such bat was recovered in his presence. PW5 denied that he was intentionally not supporting statement Mark PW5/A being won over by accused persons or having entered into out of court settlement with them. PW5 denied that he was intentionally not identifying the accused persons being the assailants or intentionally not identifying the said baseball bat being won over by the accused persons. He denied that he was deposing falsely. This witness was not cross examined by Ld defence counsel.
16.Since all the material witnesses as discussed above have not supported the case of the prosecution and the remaining witnesses are formal/police officials and there is no incriminating evidence on record to connect the accused persons with the commission of offence charged in the present case, vide order dated 21.11.2022, prosecution evidence was closed and recording of statement of accused persons u/s 313 Cr.P.C was dispensed with.
FINDINGS & OBSERVATIONS:
17.I have heard the arguments advanced before me by the Ld. Addl. PP for the State and the Ld. Defence Counsel. My findings are as under:
Ocular Evidence:
18.Ocular evidence/ eye-witness count is the best evidence in any case but it is settled law that the testimonies of the eye-witnesses are required to be carefully analyzed to test the reliability, credibility and truthfulness of the witness. Though minor infirmities and discrepancies are bound to occur in the normal course yet in a case where the various eye-witnesses corroborate each other on material aspects connected with the offence, there is no reason to reject their testimonies.
FIR No. 1067/2014 PS Uttam Nagar State Vs. Abdul Vihed & Ors Page 13 of 1519.The entire case of the prosecution is based upon the testimonies of PW1 Sh. Dharmender, PW2 Ms. Isha, PW3 Smt. Arti, PW4 Bobby and PW5 Sunny.
20.In this regard, it is observed that the material witnesses of the prosecution are PW1 Sh. Dharmender, PW2 Ms. Isha, PW3 Smt. Arti, PW4 Bobby and PW5 Sunny. The aforesaid five witnesses are stated to be the most material witnesses for the prosecution. Their respective testimonies reveals that they have not supported the case of prosecution in any manner. In their respective testimonies, they have not deposed anything incriminating against the accused persons. Since the aforesaid five witnesses PW1 Sh. Dharmender, PW2 Ms. Isha, PW3 Smt. Arti, PW4 Bobby and PW5 Sunny have not supported the case of prosecution in any manner, PW1 to PW5 were cross examined at length by Ld. Additional PP for the State after seeking permission from this Court. Ld. Additional PP for the State has cross examined the aforesaid witnesses i.e. PW1, PW2, PW3, PW4 & PW5 at length and read over their respective statements which they allegedly made before the concerned IO during the course of investigation. Despite cross-examination by Ld. Additional PP for the State, the aforesaid witnesses have not supported the allegations and they denied to have made any such statements before the police during the investigation.
21.All the relevant PWs of the prosecution namely PW1 Sh. Dharmender, PW2 Ms. Isha, PW3 Smt. Arti, PW4 Bobby and PW5 Sunny have not supported the case of the prosecution in any manner and have not alleged that accused persons namely Abdul Vihed, Vajed, Sakir @ Kali, Sakir @ Zakir, Salman caused injuries on the person of PW1 Sh. Dharmender, PW2 Ms. Isha, PW3 Smt. Arti, PW4 Bobby and PW5 FIR No. 1067/2014 PS Uttam Nagar State Vs. Abdul Vihed & Ors Page 14 of 15 Sunny with such intention or knowledge that in case death would be caused to aforesaid witnesses, they would be guilty of culpable homicide not amounting to murder. So, the testimonies of PW1 Sh. Dharmender, PW2 Ms. Isha, PW3 Smt. Arti, PW4 Bobby and PW5 Sunny are not helpful to the case of the prosecution.
22.Thus, it is crystal clear that the prosecution has failed to prove its case against accused persons namely Abdul Vihed, Vajed, Sakir @ Kali, Sakir @ Zakir, Salman for the offence charged against them, that is to say that the prosecution has failed to prove beyond reasonable doubt that accused persons are guilty for offence punishable under Section 308/323/34 IPC. Hence, all the accused persons namely Abdul Vihed, Vajed, Sakir @ Kali, Sakir @ Zakir and Salman are hereby acquitted of the charge framed against them in the present case.
23.Their previous bail bonds furnished during trial are hereby cancelled. Their previous sureties stand discharged. However, the bail bonds furnished by accused persons namely Abdul Vihed, Vajed, Sakir @ Kali, Sakir @ Zakir and Salman under Section 437A Cr.P.C. shall remain effective for a period of six months from the date of this judgment.
24.File be consigned to Record Room.
ANNOUNCED IN THE OPEN COURT ON THIS 28th NOVEMBER, 2022.
(Manish Khurana) Additional Sessions Judge-04 West/Tis Hazari Courts Delhi/28.11.2022 FIR No. 1067/2014 PS Uttam Nagar State Vs. Abdul Vihed & Ors Page 15 of 15