Delhi District Court
State vs Abdul Wahid on 25 November, 2023
IN THE COURT OF METROPOLITAN MAGISTRATE-08,
SOUTH-EAST DISTRICT, SAKET COURTS, NEW DELHI
::: JUDGMENT :::
IN THE MATTER OF:
STATE Vs. ABDUL WAHID FIR NUMBER: 1127/2016 UNDER SECTION: 451/324/506(Part-II)/34 IPC POLICE STATION: JAMIA NAGAR A. CNR No. of the Case : DLSE020051462019 B. Cr. Case No. 1212/2019 C. Date of Institution : 13.02.2019 D. Date of Commission of : 20.10.2016 Offence E. Name of the Complainant : Ms. Maisar, D/o Abdul Hai F. Name of the Accused, his : Accused no. 1Abdul Wahid, S/o Sh.
Parentage & Addresses Hakim Ali, R/o H. No. K-87/B, Abul Fazal Enclave, Jamia Nagar, New Delhi Accused no. 2 Mohd. Shahid, S/o Sh Hakim Ali, H. No. N-141, Abul Fazal Enclave, Jamia Nagar, New Delhi Accused no. 3 Mohd. Rashid, S/o Sh. Hakim Ali, R/o H. No. C-288, Shaheen Bagh, Jamia Nagar, New Delhi G. Offence complained of : 323/341/506/34 IPC H. Plea of the Accused : Pleaded not guilty and claimed trial I. Judgment reserved on : 20.09.2023 J. Date of Judgment : 25.11.2023 K. Final Order : Acquitted ACCUSED DETAILS:Sr. No. of the 1 2 3
accused Name of the Abdul Wahid Mohd. Sahid Mohd. Rashid accused Date of Arrest 20.10.2016 20.10.2016 20.10.2016 Date of release 20.10.2016 20.10.2016 20.10.2016 on Bail Offence charged 451/324/506(Part- 451/324/506(Part- 451/324/506(Part-FIR No. 1127/2016 State Vs. Abdul Wahid Page No. 1/29
with II)/34 IPC II)/34 IPC II)/34 IPC Whether Acquitted Acquitted Acquitted Acquitted/ convicted Sentence -- -- -- Imposed Period of -- -- -- detention undergone during trial (for section 428 CrPC) LIST OF PROSECUTION WITNESS: Sr.No. Name of the Witness 1 Ms. Mehsar 2 Mohd. Abid 3 ASI Suresh Chand 4 Insp. Mool Chand 5 Sh. Rajender Singh 6 Dr. Rishi
LIST OF DOCUMENTS (PROVED BY THE PROSECUTION):
Sr. No. Description of documents Exh. No.
1 Copy of FIR Ex. A-1
2 Complaint Ex. PW1/A
3 Site plan Ex. PW1/B
4 Arrest memo Ex. PW3/A
5 Arrest memo Ex. PW3/B
6 Arrest memo Ex. PW3/C
7 Personal Search Memo Ex. PW3/D
8 Personal Search Memo Ex. PW3/E
9 Personal Search Memo Ex. PW3/F
10 Rukka Ex. PW4/A
11 Authority letter Ex. PW5/A
12 MLC Ex. PW5/B
DEFENCE WITNESS:
Sr.No. Name of the Witness
1 Mohd. Khalid
2 Ms. Kosar
3 Mr. Gulfam
4 Abdul Wahid
5 Mohd. Shahid
6 Mr. Pankaj
7 Mohd. Nasir
LIST OF DOCUMENTS (PROVED BY DEFENCE):
Sr. No. Description of documents Exh. No.
1 Meham vide Receipt dt 26.10.2016 Ex. PW1/D1
2 Faislanama Ex. PW1/D2
FIR No. 1127/2016 State Vs. Abdul Wahid Page No. 2/29
3 Copy of FIR (92/2017) Ex. DW6/A
(OSR-3
pages)
Factual Background:
1. Briefly stated, the case of the prosecution is that on 20.10.2016 at about 03.00 AM complainant Mehsar was at her house bearing no. N-141, 1st Floor, Abul Fazal Enclave, Jamia Nagar. Suddenly, her father-in-law Mohd. Shahid, her husband Abdul Wahid and her brother-in-law Md. Rashid came to her house and attacked upon her with knife. They also threatened her to kill. On that basis, the present FIR was registered against the accused. Upon completion of investigation, charge sheet under section 323/341/506/34 IPC was filed and the accused was sent for trial.
Court Proceedings:
2. The ld. Predecessor of this court took cognizance of the offence on 13.02.2019 and issued process against the accused.
Pursuant to the appearance of the accused, he was supplied with the copy of chargesheet in compliance of Section 207 CrPC.
Charge:
3. Upon hearing the arguments, vide order dated 01.07.2019 charge under section 451/324/506(Part-II)/34 IPC was ordered to be framed against the accused. The accused pleaded not guilty and the matter was listed for Prosecution Evidence ('PE').
Prosecution Evidence:
4. In order to establish its case against the accused persons, prosecution examined 6 witnesses namely Ms. Mehsar ('PW1'), Mohd. Abid ('PW2'), ASI Suresh Chand ('PW3'), Insp. Mool Chand ('PW4'), Sh Rajender Singh ('PW5'), and Dr. Rishi ('PW6').
5. PW1/ Mehsar deposed that she is resident of House no. N 141, 1st floor, Abul Fazal Enclave, Jamia Nagar, New Delhi. She FIR No. 1127/2016 State Vs. Abdul Wahid Page No. 3/29 deposed that on 20.10.2016, at about 03:00 AM, she was at her above-mentioned house. Accused Mohd. Shahid, Abdul Wahid and Rashid came to her house and they attacked her and beaten her. Accused Abdul Wahid was carrying a knife and gave knife blows on her hands. She raised an alarm and all the 3 accused persons ran from the spot. Her son Mohd. Abid was also present at her house at that time. When he tried to rescue her from the accused persons, then accused persons threatened to kill him and also beaten him. She deposed that she then called police at 100 number. Police came at the spot and she has given her complaint to the police, Ex.PW1/A bearing her thumb impression at point A. Police then took her to AIIMS Trauma Centre. After being discharged from the hospital, she returned to her house. Police also prepared the site plan at her instance which is Ex.PW 1/B. Accused Mohd. Shahid, Abdul Wahid and Rashid are correctly identified by the witness in court. At that stage, Ld. APP for the State has sought permission to put leading questions to the witness. Same was allowed. PW1 admitted that accused persons had also threatened her during the incident in question. She admitted that she was earlier married to accused Shahid and that he had divorced her. She admitted that her son Mohd. Abid had written complaint Ex.PW 1/A.
6. During cross examination by Ld. Defence Counsel, PW1 deposed that she got married to accused Shahid about 26-27 years ago. She was divorced one month prior to the date of alleged incident. She denied that she along with her son were living separately from accused Shahid at Jaitpur since last 6 years from the date of alleged incident. She denied that there is no any prior complaint against the accused persons given by her prior to the date of alleged incident and for this reason, she has not mentioned the said fact in her statement Ex.PW 1/A or in her FIR No. 1127/2016 State Vs. Abdul Wahid Page No. 4/29 examination in chief. She denied that she was demanding property much prior from the date of alleged incident. She denied that accused Mohd. Shahid had given her plot measuring 50 Sq.
Yard at Madanpur Khadar, Jaitpur. She admitted that after divorce an amount of Rs. 65,423/- was paid to her on 26.10.2016, which is Ex.PW1/ D1 bearing her thumb impression at point A. She denied that another agreement dated 21.10.2016 was executed between her and accused whereby it was decided that plot at Mandanpur Khadar was to remain with her and property bearing no. N-141, Abul Fazal Enclave shall belong to her children, who shall pay an amount of Rs. 13 lacs to accused Shahid in lieu thereof. She denied that it was further decided that since she and her children could not pay an amount of Rs.13 lacs, it was decided that said amount shall be given by accused Shahid to her. She denied that it was also decided that she shall withdraw the present complaint in lieu thereof and that she shall not file any complaint against accused in future. She denied that the said agreement was executed by her and her son. At that stage, witness was shown a photocopy of Failsalanama dated 21.10.2016. The witness stated that the said document was never executed by her. The said document is marked as Mark PW 1/D2.
Q. Is it correct that you had executed one settlement dated 22.01.2017?
Question disallowed as being irrelevant as the said settlement agreement was allegedly executed after the date of incident in question.
She admitted that she had lodged FIR no. 92/2017 at PS Jama Masjid against Mohd. Islam u/s 376 IPC. Copy of the said FIR is Mark PW1/D-3.
FIR No. 1127/2016 State Vs. Abdul Wahid Page No. 5/29Q. It is correct that the said FIR was lodged on the basis of your statement?
Question disallowed as being irrelevant.
She denied that she had stated in the said FIR that she had been residing at A-277, ground floor, Gali no.6, Jaitpur Extension Part II, since last 7 years. She denied that she had left the Trauma Centre without permission. She denied that she had not met the police at Trauma Centre. She further denied that police had never come to the spot. She admitted that the place of incident is residential area and there are two other houses in the said gali. She admitted that the said two houses were inhabited by other persons at the time of incident. She denied that she had not asked her neighbours for help as no such incident happened. She denied that she was not residing at the above-mentioned address at the time of incident. She denied that her son Abid was not present at the spot at the time of incident. She admitted that her son Abid used to reside with his father at C-325/14, Shaheen Bagh at that time. She voluntarily deposed that he had come to stay with her on the date of incident. She denied that she had lodged the complaint written by her son after consultations with her other relatives in the evening on 20.10.2016 at PS Jamia Nagar, New Delhi to extort money and get property from the accused persons. She denied that no such incident as alleged by her took place. She denied that accused persons were falsely implicated by her. She denied that she is deposing falsely.
7. PW2/ Mohd. Abid deposed that he is resident of House no. 277/A, Gali no. 5, Khadda Colony, Jaitpur, Delhi. He deposed that on 20.10.2016, he was present at his residence i.e. N 141, 1 st floor, Abul Fazal Enclave, Jamia Nagar, New Delhi along with his mother. He deposed that on 20.10.2016, at about 03:00 AM, FIR No. 1127/2016 State Vs. Abdul Wahid Page No. 6/29 accused Mohd. Shahid, Abdul Wahid and Rashid came to his house and they attacked his mother and beaten her. Accused Abdul Wahid was carrying a knife and gave knife blows on hands of his mother. He deposed that they raised an alarm and all the 3 accused persons ran from the spot. He was also present at his house at that time. When he tried to rescue his mother from the accused persons, then accused persons threatened to kill him. He deposed that his mother then called police at 100 number. Police came to the spot and he gave a written complaint already Ex.PW1/A bearing his signatures at point B to the police. He had accompanied his mother to AIIMS Trauma Centre. Accused Mohd. Shahid, Abdul Wahid and Rashid are correctly identified by the witness in court.
8. During cross examination PW2, deposed that he had cleared class 12th student from Noor Nagar senior secondary government School in 2013. He is not working anywhere at present. He deposed that after school he has worked for 4-6 months as a delivery boy. His father used to work as a Kabadiwala. He admitted that the complaint exhibit PW-1/A given in the PS Jamia Nagar in the evening on the date mentioned in his complaint. He does not remember the said date. He denied that the said complaint was written by him at the behest of his mother. He denied that he and his mother were not present at the spot at time of incident. He denied that he was present at the house of his father Shahid that is house no C- 325/14 Shaheen Bagh at the time of incident. He admitted that his mother and father had been divorced before the incident in question. He denied that present complaint is fabricated and has been filed to extort money from the accused. He denied that his mother had injured herself on her hands with her own bangles to falsely implicate the accused persons. He admitted that police FIR No. 1127/2016 State Vs. Abdul Wahid Page No. 7/29 had never come to the spot after present complaint was filed. He voluntarily deposed that police had come to the spot in the morning of 20.10.2016. He denied that police did not come to the spot even on 20.10.2016. He denied that he had not gone to the hospital with her mother. He denied that his mother was taken to the hospital by one Surajmal. He denied that one agreement dated 21.10.2016 was executed between his mother and accused. He voluntarily deposed that his signature at point A on mark PW- 1/D2 were taken on a blank paper. He does not remember whether his mother had executed the said document by putting her thumb impression in his presence. He denied that he had witnessed the said agreement after duly reading the same.
Question. Is it correct that one agreement dated 22.01.2017 was executed by your mother and you in subsequent to agreement dated 21.10.2016 (mark PW-1/D2 where you have signed at two places?
Question disallowed as being irrelevant.
He denied that in order to extort more money from his father and uncle, his mother and he has concocted the said incident and lodged a false case. He denied that his father has already paid thirteen lakhs and allotted a plot measuring 50 square yards at Madan Pur Khadar. He voluntarily deposed that his mother has been only paid Mehr amount by his father. He admitted that several persons reside around house no N-141 Abul fazal enclave. He denied that they did not seek help from any of the neighbours on account of the fact that incident in question did not take place. He denied that he is deposing falsely in support of the complaint of his mother against his father and uncles.
9. PW3/ ASI Suresh Chand deposed that on 20.10.2016, he was posted as ASI at PS Jamia Nagar, New Delhi. On that day, FIR No. 1127/2016 State Vs. Abdul Wahid Page No. 8/29 investigation of this case was marked to him. Complainant was present in the PS. He then went with the complainant at the spot i.e. N-143, Abul Fazal Enclave Part I, Shaheen Bagh. He then prepared site plan already Ex.PW 1/B bearing his signatures at point A, at the instance of complainant. He deposed that he inquired about the incident from the local residents. However, he could not find any eyewitness to the incident. He searched for the accused persons. He deposed that on 27.11.2016, all the 3 accused persons came to the PS and he arrested them vide arrest memos Ex.PW3/A, Ex.PW 3/B and Ex.PW 3/C all 3 memos bearing his signatures at point A. He also conducted their personal search vide memos Ex.PW 3/D, Ex.PW 3/E and Ex.PW3/F all 3 memos bearing his signatures at point A. He also recorded statements of witness u/s 161 Cr.P.C. He then prepared and filed present chargesheet. Witness has correctly identified the accused persons in court.
10. During cross examination by Ld. Defence Counsel PW3 admitted that the place of incident is a densely populated area. He does not remember whether the complainant and her son had given him any address proof of the place of incident. He denied that the complainant and her son was residing at the place of incident and for this reason they have not given any address proof to him. He admitted that he had not mentioned the date, time and any witness on the site plan Ex.PW1/B. He denied that he did not visit the spot or that he had prepared the site plan without visiting the spot. He denied that the complainant was residing at A-277, ground floor, gali no. 6, Jaitpur Ext. Part-II, since last 7 years when the incident took place. He denied that the son of complainant namely Abid was residing at C-325/14, Shaheen Bagh, which is father's house and was not present at the place of alleged incident. He denied that no incident as alleged in FIR No. 1127/2016 State Vs. Abdul Wahid Page No. 9/29 the complaint has ever taken place and that is why no public witness is there in this case. He denied that the present case is a false case. He denied that he has not properly investigated the present case. He denied that he had filed a false charge sheet just to help the complainant. He denied that the complainant has stated to him that she has been already divorced and her mehar amount and permanent alimony has been paid to her towards her future maintenance and right. He denied that he is deposing falsely and he has helped the complainant in lodging the false case by making false endorsement on the complaint.
11. PW4/ Insp. Mool Chand deposed that on 20.10.2016, he was posted at PS Jamia Nagar as SI. On that day, he received DD No. 4A regarding quarrel at N-141, Abul Fazal Enclave. He along with other police officials, reached at the spot and came to know that the injured persons have already been shifted to AIIMS. Meanwhile, he received DD No. 6A regarding admission of injured persons. He deposed that he along with police officials went to AIIMS hospital where he came to know that injured Mehsar has already left the hospital after treatment. He deposed that he collected the MLC of injured Mehsar. Thereafter, he returned to the PS. On the same day, in the evening, Mehsar came at PS and handed over him one complaint Ex.PW1/A. He deposed that he prepared rukka Ex.PW4/A bearing his signature at point A. He got registered the FIR and the investigation was marked to ASI Suresh.
12. During cross examination, PW4 deposed that he does not remember the complaint Ex.PW1/A was already written by the complainant or it was written in the PS at the time of filing of the complaint. He admitted that he did not visit the spot after returning from hospital till receiving of complainant in the evening at PS. He admitted that no public witness has met him at FIR No. 1127/2016 State Vs. Abdul Wahid Page No. 10/29 the hospital or thereafter, in relation to the current case. He admitted that the complainant has not stated any reason for late coming to the PS for giving the complaint. He denied that he has tutored the complainant and her son to write false complaint against the accused persons. He denied that no such incident/ offence has been committed by the accused persons on the date and place alleged the complaint Ex.PW1/A. He denied that he is deposing falsely and he has helped the complainant in lodging the false case by making false endorsement on the complaint.
13. PW5/ Rajender Singh deposed that he is working in AIIMS Trauma Centre since 2006. He has been authorized to depose in the present matter vide letter dated 04.11.2022. The Said letter is Ex.PW 5/A. He deposed that on 20.10.2016, Dr. Jones Lakkenaboyina medically examined injured Mahsar vide MLC No. 590676/20 OCT 2016 dated 20.10.2016. The said MLC is Ex PW-5/B, bearing the signatures of Dr. Jones Lakkenaboyina at point A. He deposed that he could identify the signatures of Dr. Jones Lakkenaboyina on the basis of the records available with the hospital as he had seen her writing and signing during the course of his duties. Dr. Jones Lakkenaboyina is no longer working at AIIMS.
14. During cross examination, PW5 deposed that MLC Ex.PW 5/B was not prepared in his presence. He has no personal knowledge about the same. He denied that he had never worked with Dr. Jones Lakkenaboyina and had not seen her signatures. He denied that he could not identify signatures of Dr. Jones Lakkenaboyina. He denied that he is deposing falsely.
15. PW6/ Dr. Rishi deposed that he is working as Sr. Orthopedics at AIIMS. He deposed that he had gone through the MLC Ex.PW5/B. As per MLC, Ex.PW5/B the nature of injury is simple.
FIR No. 1127/2016 State Vs. Abdul Wahid Page No. 11/2916. During cross examination, PW6 deposed that MLC Ex.PW 5/B was not prepared in his presence. He deposed that he has no personal knowledge about the same. He admitted that he had not worked with Dr. Jones. He admitted that the MLC Ex.PW5/B does not bear the thumb impression or signature of Mahsar. He admitted that the injuries as mentioned in the aforesaid MLC may be self-inflicted or not. He admitted that the present injuries may occur due to broken edge of bangles. He further admitted that as per the MLC, only one injury was reported. He denied that he is deposing falsely in the present case.
17. Accordingly, vide order dated 23.11.2022, PE was closed.
Admission u/s 294 CrPC
18. In terms of section 294 CrPC, accused has admitted copy of FIR as Ex A-1.
Statement of the Accused:
19. On 28.01.2023, statement of accused persons under Section 313 Cr.P.C. read with Section 281 Cr.P.C. was recorded in which all incriminating material was put to them, to which they pleaded innocence and claimed to have been falsely implicated. Accused Abdul Wahid stated that he is innocent. Complainant has falsely implicated him for extortion because his younger brother Shahid given her talaq and entire alimony and mehar is paid to her. Settlement agreement was also made in the presence of neighbours. Accused Rashid has stated that complainant has bad reputation. He is living separately from his brother Shahid. Complainant has already given Talaq by his brother all settled amount was paid to her. Accused Shahid stated that complainant was residing at the address given in complaint and she was residing at Jaitpur before talaq. All settled amount FIR No. 1127/2016 State Vs. Abdul Wahid Page No. 12/29 already paid to the complainant. Accused persons have opted to lead any defence evidence.
Defence Evidence:
20. Accused has examined 7 witnesses namely Mohd Khalid ('DW1'), Ms. Kosar ('DW2'), Mr. Gulfam ('DW3'), Abdul Wahid ('DW4'), Mohd. Shahid ('DW5'), Mr. Pankaj ('DW6'), and Mohd. Nasir ('DW6').
21. DW1/ Mohd. Khaild deposed that he knows Mohd. Shahid. He deposed that, Mohd. Shahid has given divorce to his wife and after getting the divorce she has moved to Jaitpur in 2016. There was no incident of the fight/ quarrel/ assault between the parties. Divorce has taken place amicably and peacefully. She had also got the plot around Rs.14-Rs.15 lacs from the Shahid and also got the Mehar amount Rs. 65,000/-.
22. During cross examination by Ld. APP, DW1 deposed that he is an auto driver and work from 08:00 AM to 05:00 PM. His schedule of the day is that he gets up in the morning, go to work, come back in evening, have his dinner and go to sleep at about 9- 10 pm. House of Shahid is towards the left in the street about 6-7 house away. He admitted that when he was sleeping at night then he would not be able to know the incident inside the house of any person. He admitted that he would be able to know only if the same has happened on the street. On specific query, witness deposed that he is not aware about the date when the complainant has left the house. He deposed that she had left sometime after the divorce. He does not remember the exact date. He could not tell whether the complainant was at her house on 20.10.2016.
Q. Are you aware whether the complainant left the house before or after 20.10.2016?
FIR No. 1127/2016 State Vs. Abdul Wahid Page No. 13/29Ans. I am not aware. She had left sometime after the divorce. I do not remember the exact date. I cannot tell whether the complainant was at her house on 20.10.2016.
Q. Is it correct to say that you would not know that the incident had taken place on 20.10.2016 as it was 3 am at night and the house of complainant is farther from your house?
Ans. As the no quarrel/ assault has taken place inside the house that is why I am not aware what was happening inside the house of the accused. If it had been the case of assault / quarrel inside the house of the accused at 3 am, I would have been definitely knowing the incident. However, I admit that I cannot hear the normal conversation inside the house of accused being at distance of 7 houses.
23. He denied that he is not aware about any quarrel among the accused and the complainant as it was late at night. He denied that he merely deposing at the instance of the accused to save him. He admitted that police had come to the house of the accused. Again, said police had not visited the house of accused as no incident had happened. He denied that he is not aware about the facts of the present case and merely deposing at the instance of the accused.
24. DW2/ Ms. Kosar deposed that she knows Mohd. Shahid accused of this case for last about 15 years. Accused Shahid is residing in front of her house in house no. N 141 Abul Fazal Enclave. Her house and house of Shahid is in the same gali and opposite to each other. Complainant Mehasar and her husband Mohd. Shahid was residing in house no. N 141 Abul Fazal Enclave along with their 3 sons age about 20 years and below. The complainant Mehasar had taken divorce (Talak) from her husband on 17.09.2016. Thereafter Mehasar had left the house of FIR No. 1127/2016 State Vs. Abdul Wahid Page No. 14/29 Mohd. Shahid address N 141 Abul Fazal Enclave on the same day who resides in her house at Jaitpur. Thereafter she never came back at the house of Mohd. Shahid at the above said address. All the claims of Mehasar were settled by Mohd. Shahid. No incident of assault has taken place in the house of Mohd. Shahid as alleged on 20.10.2016. She deposed that police had not come in her gali where she is residing at 143 or at the house of Mohd. Shahid on 20.10.2016 or thereafter. Abdul Wahid and Rashid are not residing at the house of Mohd. Shahid and they are residing separately in different house at a long distance of Mohd. Shahid.
25. During cross examination by Ld. APP, DW2 deposed that she is a house wife and reside at home only. The complainant had never come to the house of accused after she got divorced from accused husband. She deposed that she would know whether the complainant come to the house of the accused as she often stay out door. On specific query, she deposed that she had not mentioned about the police in her statement. She further deposed that she is not aware about the date of incident. She is only aware about the date of Talaq.
Q. Why have you have mentioned 20.10.2016 in your examination in chief?
Ans. I had not stated the date. I had only answered only what was asked by my counsel.
She denied that accused had caused injuries to the complainant on 20.10.2016 and there MLC on record. She denied that incident had taken place in the middle of night and she would not know whether the incident had taken place. She further denied that she is not aware about the fact of the case and she is only deposing to save the accused. She denied that she is not aware about the FIR No. 1127/2016 State Vs. Abdul Wahid Page No. 15/29 incident because same had taken place inside the house of the accused.
26. DW3/ Gulfam deposed that he is residing at H.No. N- 138, Gali No.5, Second Floor, Abul Fazal Enclave, Jamia Nagar, New Delhi for the last 15 years. He knows Mohd. Shahid who is his neighbour residing in the same colony i.e. H.No. N-141, Gali No.5, Abul Fazal Enclave, Jamia Nagar, New Delhi. On 17.09.2016, Mohd. Shahid and his wife Smt. Mehsar got divorced mutually and Smt. Mehsar, W/o Mohd. Shahid left the house on the same day for Jaitpur, New Delhi. Mohd. Shahid settled the matter and paid Mehar amount and transferred the property in her name. Nothing had happened thereafter at the said address between Smt. Mehsar and her husband Mohd. Shahid.
27. During cross examination by Ld. APP, DW3 deposed that he drives Cabs. In the morning, he does not have fixed working hours but he came back between 10 pm to 12 am. The house of the accused is 2 houses away. He deposed that he goes to sleep about 02:30 am to 03:00 am. On specific query, he deposed that he is aware about the date of alleged incident i.e. 20.10.2016. He further deposed that he was on half day duty on 20.10.2016. He deposed that the police had not arrived on that day at the house of the accused. He came to know about the present case after 2-3 days of registration of FIR. He came to know about the same as son of the complainant is his friend. He deposed that he is not aware that there is MLC on record as to the injuries sustained by the complainant on the alleged day of incident. He denied that he is not aware about the quarrel took place between the accused and the complainant as it was late at night. He denied that he is deposing at the instance of the accused to save him. He denied that victim had sustained injuries due to knife blows given by the accused. He denied that he is aware that the complainant was FIR No. 1127/2016 State Vs. Abdul Wahid Page No. 16/29 residing at the house of the accused on the alleged date of incident. He denied that he is deposing falsely.
28. DW4/ Abdul Wahid deposed that they are 3 brother namely Abuld Wahid, Mohd. Shahid and Mohd. Rashid Mohd. Shahid is his younger brother and Mohd. Rashid youngest brother. He deposed that they all are residing at separate address. He is residing at K-87/B Abul Fazal Enclave Jamia Nagar Okhla New Delhi for 20 years. This is his own house. Mohd. Shahid residing at N-141 Abul Fazal Enclave. Mohd. Rashid is residing at C-284 Shaheen Bagh. His brother Mohd. Shahid got married about 30 years ago. He deposed that Mohd Shahid has 3 sons. He deposed that he does not visit to the house of his brother Mohd. Shahid. His brother Mohd. Shahid and his wife Mehsar were not having good relation between them. Therefore, Mehsar wife of Mohd. Shahid got divorce (talaq) with mutual concerned on 17 september 2016. Thereafter, Mehsar went to Jaitpur with her sons on the day and staying there since then. Thereafter, she has not come to the house of his brother Mohd. Shahid at H.No. N-141 Abul Fazal enclave Jamia Nagar. She has been paid Mehar amount vide receipt dated 26.10.2016 which is already Ex. PW- 1/D1 and bearing his signature at point A. This receipt was also witnessed by other respected persons of the society neighbours. Mehsar has put her thumb impression (RTI) in his presence and in the presence of other witness after receiving her Mehar amount. Later on, he came to know from his brother Mohd. Shahid that his ex-wife Mehsar has lodged this case against him and his brothers for extortion for the further money from all of them by implicating. On 20.10.2016, no such incident of assault has happened. They are innocent and has been falsely implicated.
29. During cross examination by Ld. APP, DW4/ Abdul Wahid admitted that Mehsar is wife of his brother Md. Shahid. During FIR No. 1127/2016 State Vs. Abdul Wahid Page No. 17/29 subsistence of marriage the relationship between them and Mehsar was cordial. The reason for divorce between Mehsar and her husband Md. Shahid was that their relationship started deteriorating after marriage. He admitted that he was residing in the next street near house of Md. Shahid. Sometimes he had to come to stop the altercation between his brother Md. Shahid and Mehsar. He deposed that his brother Md. Shahid used to complain to him that his wife does not want to stay with him. He knows Abid since his childhood. Abid is his nephew. He had never shared good relationship with his nephew Abid. He voluntarily deposed that Abid was not behaving well due to influence of his mother. Complainant has made him accused to extort him. He denied that he is deposing falsely in order to save himself. He denied that Abid and Mehsar are telling the truth. He further denied that he attacked victim Mehsar along with his brother Md. Shahid and Md. Rashid in order to force her to leave her marital home. He denied that he is deposing falsely.
30. DW5/ Mohd. Shahid deposed that they are 3 brothers namely Abuld Wahid, Mohd. Shahid and Mohd. Rashid. Mohd. Abdul Wahid is his elder brother and Mohd. Rashid is younger brother. They all are residing at separate addresses. He deposed that he is residing at N-141 Abul Fazal Enclave Jamia Nagar Okhla New Delhi for 30 years. That was his own house. Abdul Wahid residing at K block Abul Fazal Enclave. Mohd. Rashid is residing at C-284 Shaheen Bagh. He got married about 30 years ago as per Muslim customs. He deposed that he has 3 sons namely Mohd. Abid 28 years, Mohd. Adeel 26 years and Mohd. Atif 24 years. His brother Abdul Wahid and Mohd. Rashid did not come to his house. His wife Mehsar usually fought and misbehaved with him in their day-to-day life. He deposed that she used to meet male friend to which he objected and FIR No. 1127/2016 State Vs. Abdul Wahid Page No. 18/29 misbehaved with him regularly. His wife Mehsar persuaded him and demanded Talaq to her. His wife Mehsar got divorce (talaq) with mutual consent on 17 September 2016. Thereafter Mehsar went to Jaitpur with her sons on the same day and staying there since then. Thereafter she has not come to his house at H.No. N- 141 Abul Fazal enclave Jamia Nagar. She has been paid Mehar amount vide receipt dated 26.10.2016 which is already Ex. PW- 2/D1 and also paid Rs.1300000/- cash (rupees thirteen laks only) and a plot vide a faisalanama which is already mark PW-1/D2 which bears his signature at point B and his wife Mehsar put her thumb impression at point C and has been signed by his son Mohd. Abid at point A. This faisalanama was also witnessed by other respected persons of the society neighbours from Sr. no. 01 to 20 from point X to X1 in his presence. He deposed that Mehsar has put her thumb impression in his presence and in the presence of other witness after receiving her settlement amount. Later on, he came to know from police of PS Jamia Nagar that his ex-wife Mehsar has logged this case against him and his brothers for extortion for more money from all of them by implicating in this case. On 20.10.2016, no such incident of assault has happened. On this date 20.10.2016 his ex-wife Mehsar and his all three son were residing with him at his house N-141 abul fazal enclave. He deposed that they are innocent and has been falsely implicated.
31. During cross examination by Ld. APP, DW5 deposed that at the time of divorce with her wife Mehsar, he paid her Rs. 65,000/-. He and his then wife used to have numerous altercations because she used to speak very rudely to him and not obey what he said. He deposed that mostly their altercations were confined to the insides of their home. The relation between his son Abid were cordial during subsistence of the marriage FIR No. 1127/2016 State Vs. Abdul Wahid Page No. 19/29 between him and her mother Mehsar. Usually, the relation between his wife and him were cordial, it was only sometimes altercations used to happen. He admitted that his brother Abdul Wahid was residing in the next street near his house. Abdul Wahid did not like to come and intervene during the altercations between him and his wife Mehsar. He deposed that he never used to say that he does not want to live with his wife and neither did he say the same to his brother Abdul Wahid. He used to ask his son Abid to perform household chores. He voluntarily deposed that Abid was very lazy and he was not disciplined. Relationship between him and his son Abid was good. Complainant has made him an accused to extort him. He denied that he is deposing falsely in order to save himself. He denied that Abid and Mehsar are telling the truth. He denied that he attacked victim Mehsar along with his brother Abdul Wahid and Md. Rashid in order to force her to leave her marital home. He denied that he has not paid any Mehar amount to Mehsar ever. He denied that he is deposing falsely.
32. DW6/ Pankaj has brought the records of FIR No. 92/2017, PS Jama Masjid. FIR bearing no. 92/2017 is Ex. PW1/A in SC No 553/2019. Copy of FIR No. 92/2017 obtained from the records and kept for the purposes of this case. Copy of FIR no. 92/2017 is Ex. DW6/A (OSR-3 pages). Witness was not cross examined by Ld APP despite opportunity given.
33. DW7/ Mohd. Nasir DW2 has identified his signature at Point D of Mark PW1/D2. He deposed that this Faislanama was executed between complainant Mehsar and accused Mohd. Shahid in his presence. He further deposed that both the parties have executed this document in his presence.
34. During cross examination by Ld. APP, DW7 denied that he is deposing at the instance of all the accused persons. He FIR No. 1127/2016 State Vs. Abdul Wahid Page No. 20/29 denied that the Faislanama was not executed ever and it is forged and fabricated document. He further denied that he is deposing falsely.
Final Arguments:
35. Ld. APP has submitted that prosecution has proved its case beyond reasonable doubt as the witnesses have proved entire case of the prosecution. It is also submitted that alleged offence is grave and the accused persons be convicted of the offences charged.
36. Per Contra, Ld. counsel for the accused has submitted that accused is completely innocent and has been falsely implicated in the present case. Further, submitted that complainant was available at N-141, Abul Fazal Enclave, Jamia Nagar at the time and place of incident. DW2 has submitted that complainant has left the said address after divorce on 17.09.2016 and never returned. At the end, he has submitted that the prosecution has completely failed to prove its case beyond reasonable doubt and therefore, accused persons are entitled to be acquitted of the alleged offences.
37. This court has heard the submissions of Ld. APP for State and the Ld. LAC for accused and carefully perused the judicial record.
Discussion and Analysis:
38. In a criminal trial, the burden of proving everything essential to the establishment of the charge against an accused always rests on the prosecution and there is a presumption of innocence in favour of the accused until the contrary is proved. Criminality is not to be presumed, subject of course to some statutory exceptions. It was observed in Partap v. State of U.P. reported as A.I.R. 1976 SC 966 that while prosecution is FIR No. 1127/2016 State Vs. Abdul Wahid Page No. 21/29 required to prove its case beyond a reasonable doubt, accused can discharge his onus by establishing a mere preponderance of probability. In Vijayee Singh v. State of U.P. reported as 1990(3) SCC 190, it was again held that in criminal cases burden is always is on prosecution and never shifts. In Nasir Sikander Shaikh v. State of Maharashtra reported as (SC) 2005 Cri.L.J. 2621 and Jarnail Singh v. State of Punjab reported as (SC) 1996(1) R.C.R.(Criminal) 465 it was held that it is cardinal principle of criminal jurisprudence that an accused is presumed to be innocent and burden lies on prosecution to prove the guilt of accused beyond reasonable doubt. Prosecution is under legal obligation to prove each and every ingredient of the offence beyond any doubt, unless otherwise so provided by the Statute. Accused is not expected to prove his innocence to the hilt. If prosecution story is doubtful, benefit of doubt must go to the accused.
39. To accomplish the aforesaid purpose, Prosecution has examined following categories of witness:
a) Material Witness - PW1 and PW2
b) Medical Witness - PW5 and PW6
c) Police Witness - PW3 and PW4
40. At the outset, this court shall look at the settled position of law of offence punishable under section 324/451/506 (Part II)/34 of the Indian Penal Code (IPC)
41. Section 34 IPC: Acts done by several persons in furtherance of common intention - When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone.
42. Ordinarily, a person is responsible for his own act. A person can also be vicariously responsible for the acts of others if FIR No. 1127/2016 State Vs. Abdul Wahid Page No. 22/29 he had the common intention to commit the offence. The words "common intention" implies a prearranged plan and acting in concert pursuant to the plan. It must be proved that the criminal act was done in concert pursuant to the prearranged plan. Common intention comes into force prior to the commission of the act in point of time, which need not be a long gap. Under this section a preconcert in the sense of a distinct previous plan is not necessary to be proved. The common intention to bring about a particular result may well develop on the spot as between a number of persons, with reference to the facts of the case and circumstances of the situation. Though common intention may develop on the spot, it must, however, be anterior in point of time to the commission of the crime showing a prearranged plan and prior concert. To attract Section 34 of the IPC, no overt act is needed on the part of the accused if they share common intention with others in respect of the ultimate criminal act, which may be done by any one of the accused sharing such intention (This view was re-iterated by full bench of Hon'ble Supreme Court in Gulab V. State of UP reported as (2022) 12 SCC 677).
43. Further, the plan need not be elaborate, nor is a long interval of time required. It could arise and be formed suddenly, as for example when one man calls on bystanders to help him kill a given individual and they, either by their words or their acts, indicate their assent to him and join him in the assault. The common intention may develop in course of the fight but there must be clear and unimpeachable evidence to justify that inference.
44. Therefore, the fundamental principles underlying Section 34 is that:
a) Section 34 does not create a distinct offence, but is a principle of constructive liability;FIR No. 1127/2016 State Vs. Abdul Wahid Page No. 23/29
b) In order to incur a joint liability for an offence there must be a pre-arranged and pre-mediated concert between the accused persons for doing the act actually done;
c) There may not be a long interval between the act and the pre-meditation and the plan may be formed suddenly. In order for Section 34 to apply, it is not necessary that the prosecution must prove an act was done by a particular person; and;
d) The provision is intended to cover cases where a number of persons act together and on the facts of the case, it is not possible for the prosecution to prove who actually committed the crime.
45. Section 319 IPC: Hurt - Whoever causes bodily pain, disease or infirmity to any person is said to cause hurt.
46. Section 324 IPC: Voluntarily causing hurt by dangerous weapons or means - Whoever, except in the case provided for by section 334, voluntarily causes hurt by means of any instrument for shooting, stabbing or cutting, or any instrument which, used as a weapon of offence, is likely to cause death, or by means of fire or any heated substance, or by means of any poison or any corrosive substance, or by means of any explosive substance or by means of any substance which it is deleterious to the human body to inhale, to swallow, or to receive into the blood, or by means of any animal, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.
47. House-trespass in order to commit offence punishable with imprisonment - Whoever commits house-trespass in order to the committing of any offence punishable with imprisonment, shall be punished with imprisonment of either description for a term which may extend to two years, and shall also be liable to fine; and if the offence intended to be committed is theft, the term of the imprisonment may be extended to seven years.
48. Punishment for criminal intimidation - Whoever FIR No. 1127/2016 State Vs. Abdul Wahid Page No. 24/29 commits, the offence of criminal intimidation... if the threat be to cause death or grievous hurt, or to cause the destruction of any property by fire, or to cause an offence punishable with death or imprisonment for life, or with imprisonment for a term which may extend to seven years, or to impute, unchastity to a woman, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both (relevant extract).
49. There is no dispute that accused Shahid was owner of the property bearing no. N-141, Abul Fazal Enclave, Jamia Nagar. Complainant and accused persons are relatives, no dispute on identity of accused persons.
50. In present case, DD No. 4A dated 20.10.2016 and DD No. 6A dated 20.10.2016 however not given any identification but reference of both DD Nos has come in the evidence of PW4. PW4 has deposed that he has started investigation on the basis of both DD No. Accused had an opportunity to see both documents and question them. Since no objection was raised, both DD No. shall be read in evidence. DD No. 4A discloses that an information was received at 03:20AM regarding the fact that a lady is alone and 4 persons are misbehaving with her at N-141, Abul Fazal Enclave, Jamia Nagar. DD No. 6A received from Trauma Centre, hospital which discloses that Pt. Mahesar W/o Shahid R/o N-141, Abul Fazal Enclave, Jamia Nagar admitted in hospital for treatment vide MLC no. 590676/16, due to quarrel brought by PCR.
51. PW1 stated that on 20.10.2016 at about 03:00AM, she was at her residence situated at N-141, First Floor, Abul Fazal Enclave, Jamia Nagar. At that time all accused persons have come and attacked on her. Thay have beaten her. Accused Wahid had a knife and he has given a blow which causes injury on her FIR No. 1127/2016 State Vs. Abdul Wahid Page No. 25/29 hand. She raised the alarm and then all accused persons have left the spot. Her son Abid was also present with her at that time. He has come to rescue her mother, accused persons have threatened him to kill and also beaten him. Thereafter, she called on 100 number. Police came and took her to the hospital AIIMS Trauma Center. She has proved her complaint Ex. PW1/A. She has not supported the case on the aspect that accused persons have also threatened her. During cross examination on questions asked by counsel for the accused persons, she deposed that her son Abid use to live with his father at C-325/14, Shaheen Bagh but voluntarily answered that on the date of incident he had come to reside with her at the address where alleged incident has taken place. Her MLC No. 590676/16 Ex. PW5/B. It is prepared at 04:07 AM on 20.10.2016 and written that she was brought by 155 PCR by Police official Suraj Mal. The injury is also specifically described and nature is endorsed as "SIMPLE".
52. PW2 son of the complainant deposed that on 20.10.2016 at about 03:00 AM, accused persons have come to his house. Thay attacked her mother and beaten her. Abdul Wahid was carrying knife and given blow on hand of his mother which causes injury to her. When tried to rescue her, accused persons have threatened him to kill. Her mother called on 100 number.
53. The law on the value of testimony of injured witness is fairly settled. In Abdul Sayeed V. State of M.P. reported as (2010) 10 SCC 259, Hon'ble supreme court discussed the evidentiary value of an injured witness and summarised to the effect that:
"The testimony of the injured witness is accorded a special status in law. This is as a consequence of the fact that the injury to the witness is an in-built FIR No. 1127/2016 State Vs. Abdul Wahid Page No. 26/29 guarantee of his presence at the scene of the crime and because the witness will not want to let his actual assailant go unpunished merely to falsely implicate a third party for the commission of the offence. Thus, the deposition of the injured witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies therein.'' The same view was followed by Hon'ble Delhi High Court in Vipin Sharma v. State reported as 2018 SCC OnLine 12814 and other numerous judgments.
54. DD No. 4A discloses that an information received that a lady is alone at N-141, Abul Fazal Enclave and four persons are misbehaving with her. But during evidence PW1 and PW2 both stated that accused persons have attacked on complainant and threatened both of them. Both were present together at the time of incident. Complainant has called on 100 number. During examination in chief, PW1 has not stated that she was threatened by the accused persons. She has deposed that her son was threatened and beaten by the accused persons when he tried to rescue her. When Ld. APP asked leading question, she deposed that she was also threatened by the accused persons. PW2 deposed that he was threatened by the accused persons. He has not stated that his mother was threatened or he was beaten by the accused persons. The facts discussed hereinabove discloses major contradiction in the version of complainant/PW1. The version of PW1 and PW2 are also contradictory from each other on the aspects of threatening and beating to PW2. Therefore, the FIR No. 1127/2016 State Vs. Abdul Wahid Page No. 27/29 evidence of PW1 and PW2 cannot be relied upon and there are strong grounds for rejection of her evidence on the basis of major contradictions and discrepancies discussed above.
55. Further, DW2 deposed that complainant has left the address N-141, Abul Fazal Enclave, Jamia Nagar after her divorce on 17.09.2016 and she has never returned. DW2 is neighbour of the accused Shahid. DW3 deposed that, after divorce complainant left the address N-141, Abul Fazal Enclave, Jamia Nagar and went to Jaitpur. He has also deposed that nothing has happened at the said address between complainant and the accused Shahid. DW4 is the friend of the son of the complainant. Accused persons have also stated that after divorce, complainant was shifted to Jaitpur. The proximity of DW3 and DW4 supported the version of accused persons.
56. There is no evidence on record which prove forceful entry at N-141, Abul Fazal Enclave, Jamia Nagar. Prosecution could not prove that accused persons have entered at N-141, Abul Fazal Enclave, Jamia Nagar forcefully.
57. PW6 also stated in his evidence that the injury written in Ex. PE5/B may be self-inflicted and caused by broken edge of bangles.
58. The fact that the version stated by PW1 and the fact written in DD No. 4A is contradictory from each other. The evidence of PW1 and PW2 is also contradictory from each other on the aspects of intimidation and beatings of PW2. There is no evidence of forceful entry at N-141, Abul Fazal Enclave, Jamia Nagar. The possibility of self-inflicted injury by bangles given by PW6. DW2 stated that complainant left the address at N-141, Abul Fazal Enclave, Jamia Nagar and never returned back. DW4 deposed that alleged incident has not taken place. When above- stated facts kept in juxtaposition to each other, cast a serious FIR No. 1127/2016 State Vs. Abdul Wahid Page No. 28/29 doubt over the case of the prosecution. In view of what has been taken note by this court, the possibility of false implication of the accused persons cannot be ruled out.
59. Thus, in view of the foregoing analysis, this court is of the considered opinion that the aforesaid deficiencies in the case of the prosecution are sufficient enough to raise a doubt on the veracity of the entire prosecution case against the accused and extend the benefit of doubt to them.
Decision:
60. Accordingly, accused Abdul Wahid, Md. Shahid and Md. Rashid all S/o Sh. Hakim Ali held not guilty and stands acquitted for the offence punishable under Section 451/324/506 (Part II)/34 of Indian Penal Code.
Announced in open (Abhitesh Kumar)
Court today i.e on 25.11.2023 MM-08, (SE) Saket Courts
New Delhi
This Judgment contains twenty nine pages (29) and all pages bears my signature.
(Abhitesh Kumar) MM-08 (SE): Saket Courts New Delhi: 25.11.2023 FIR No. 1127/2016 State Vs. Abdul Wahid Page No. 29/29