Delhi District Court
State vs Shamimna Etc on 28 August, 2023
IN THE COURT OF SH. SANJAY SHARMA-II : ADDL. SESSIONS JUDGE-03
(CENTRAL): TIS HAZARI COURTS, DELHI
SC No. : 27324/2016
FIR No. : 341/2014
PS : Timarpur
Under Section : 323/427/452/435/436/34 IPC
Case ID : DLCT01-000427-2015
State Versus 1. Shamina
W/o Mr. Shahid Ali
R/o H. No. 124, Basti Hazarat
Nizamuddin, Delhi
2. Nazreen
W/o Mr. Mohd. Javed
R/o H. No. C-3/30, Gali No 5
Chauhan Banger, Seelampur
Delhi
3. Shehnaz
W/o Mr. Aftab
R/o H. No. 124, Basti Hazarat
Nizamuddin, Delhi
Date of Institution : 11.08.2015
Date of Arguments : 27.05.2023
Date of Judgment : 28.08.2023
JUDGMENT
INTRODUCTION:
1. The case of the prosecution is that on 23.05.2014 at about 11.30 a.m. at H. No. 1753, Sanjay Basti, Delhi, the accused persons, in furtherance of their common intention, committed house trespass having made preparation for causing hurt to Smt. Firdos Khan (Hereinafter 'the complainant') or for assaulting her. Thus, the State prosecuted the accused persons for committing offence under Section 452/34 of 'The Indian Penal Code, 1860' (In short 'IPC').
2. It is further case of the prosecution that the accused persons voluntarily caused hurt to the complainant. Thus, the State prosecuted the accused persons for committing offence under Section 323/34 IPC.
FIR No. 341/2014 State vs. Shamina & Ors. Page No. 1 of 25
3. The case of the prosecution is that the accused persons committed mischief and thereby caused loss or damage to the furniture of the complainant to the amount of Rs. 50/- or upwards. Thus, the State prosecuted the accused persons for committing offence under Section 427/34 IPC.
4. The case of the prosecution is that the accused persons committed mischief by fire intending to cause, or knowing it to be likely that they will thereby cause damage to scooty of the complainant. The State prosecuted the accused persons for committing offence under Section 435/34 IPC.
5. The case of the prosecution is that the accused persons committed mischief by setting bed and its mattresses on fire with the intention to cause, or knowing it to be likely that they will thereby cause destruction of house of the complainant.
Thus, the State prosecuted the accused persons for committing offence under Section 436/34 IPC.
CHARGE-SHEET:
6. The case of the prosecution, as unfurled in the statement of the complainant, is that she was residing alongwith her family in H. No. 1753, Sanjay Basti, Timapur, Delhi. Her nephew Aftab was also residing with her. She had a quarrel with him on the issue of vacation of her house. On 23.05.2014 at about 11.30 a.m., the accused persons came to the house of the complainant. They abused her. They forcibly entered into her house after pushing her. They assaulted her. They damaged household articles, T.V., dressing table, mirror and utensils. The accused Shamina set her bed on fire. The accused Nazreen snatched her gold chain. She managed to escape and came outside and made noise. They pushed her scooty No. DL 5S AL 1256 on road. The accused Shehnaz set her scooty on fire.
FIR No. 341/2014 State vs. Shamina & Ors. Page No. 2 of 25 PCR CALL:
7. On 23.05.2014 at about 12.10 p.m., PW-13 HC Dinesh Kumar, Duty Officer, PS Timarpur received a PCR call that '1753, Sanjay Basti, Balak Ram Jhagda Phone No. 9971498480', vide DD No. 17A Ex.PW13/A. He assigned it to PW-14 SI Sombir for appropriate action. SECOND PCR CALL:
8. On 23.05.2014 at about 12.12 p.m., PW-13 HC Dinesh Kumar received a PCR call that 'Sanjay Basti, Timarpur Main Road, Jhuggi No. 1753 jhagda v scooty mein aag laga di hai No. 9310309937', vide DD No. 18A Ex.PW13/B. He assigned it to PW-14 SI Sombir for appropriate action. STATUS OF THE PLACE OF THE INCIDENT:
9. PW-14 SI Sombir alongwith PW-11 Ct. Rajesh reached at the place of incident. The articles were scattered in the house. There were broken pieces of glass on the floor. The bed was burning. The smoke was emanating from mattresses and bed-sheet. Public persons were extinguishing the fire with water.
Public persons were extinguishing the fire from scooty bearing registration No. DL 5S AL 1256.
PREPARATION OF RUKKA:
10. PW-14 SI Sombir recorded statement of the complainant Ex.PW1/A. He called PW-2 Ct. Ritika and PW-7 Ct. Shabnam to the place of incident. He called Crime Team.
Crime Team inspected the place of incident and taken photographs thereof. He prepared rukka Ex.PW14/A for registration of case under Section 452/323/435/436/392/34 IPC.
11. On 23.05.2014 at about 02.00 p.m., PW-14 SI Sombir handed over rukka to PW-11 Ct. Rajesh for being taken to PS Timarpur for registration of case.
FIR No. 341/2014 State vs. Shamina & Ors. Page No. 3 of 25 REGISTRATION OF FIR:
12. On 23.05.2014 at 02.15 p.m., PW-13 HC Dinesh Kumar, Duty Officer, PS Timarpur registered FIR No. 341/2014 under Section 323/452/435/436/392/34 IPC Ex.PW13/C. He assigned further investigation to PW-14 SI Sombir. INVESTIGATION:
13. During investigation, PW-14 SI Sombir prepared site plan of the place of incident Ex.PW14/B at the instance of the complainant. He seized burnt scooty, vide seizure memo Ex.PW1/B. He seized burnt pillow, suit-salwar, one green colour printed sheet, one burqa and one mattress, vide seizure memo Ex.PW1/C. He arrested the accused Shamina, Nazreen and Shehnaz, vide arrest memos Ex.PW1/D to Ex.PW1/F respectively. He sent the complainant to Aruna Asaf Ali Hospital.
MEDICAL EXAMINATION:
14. On 23.05.2014 at 02.15 p.m., Dr. Prashant, CMO, Aruna Asaf Ali Hospital, Rajpur Road, Delhi examined the complainant and found 'a superficial abrasion present over right forearm', vide MLC Ex.PW12/A and referred her to surgery. He opined that the nature of injury sustained by the complainant as 'simple' with 'blunt object'. SPOT SEIZURES:
15. PW-14 SI Sombir prepared pointing out memo of the place of incident Ex.PW14/C. He could not recover the gold chain. He deposited the case exhibits in malkhana. SUBMISSION OF CHARGE-SHEET:
16. On completion of investigation, PW-14 SI Sombir charge-sheeted the accused persons under Section 323/452/427/ 435/436/34 IPC.
FIR No. 341/2014 State vs. Shamina & Ors. Page No. 4 of 25 COMMITTAL PROCEEDINGS:
17. Vide order dated 04.08.2015, the Jurisdictional Magistrate committed the case to the Court of Session. CHARGE:
18. Vide order dated 20.08.2015, the accused persons were charged for committing offences under Section 452/34, 323/34, 427/34, 435/34 and 436/34 IPC. They pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE:
19. The prosecution examined 14 witnesses, as under:
The witnesses Description of the witnesses PW-1 Smt. Firdos The complainant / injured PW-2 Ct. Ritika Arrest witness PW-3 SI Mohit Kumar In-Charge, Mobile Crime Team (North) PW-4 Tabassum Witness to the incident PW-5 Dilip Thakur Witness to the incident PW-6 Sonu Raj Witness to the incident PW-7 Ct. Shabnam Arrest witness PW-8 Ct. Inderjeet Photographer, Mobile Crime Team (North) PW-9 Ct. Babita Arrest witness PW-10 ASI Satender MHC (M), PS Timarpur PW-11 HC Rajesh Kumar Accompanied IO SI Sombir PW-12 Dr. Ruby Kumari Identified handwriting and signature of Dr. Prashant Kumar on MLC PW-13 HC Dinesh Kumar Duty Officer, PS Timarpur PW-14 SI Sombir Investigating Officer PLEA OF THE ACCUSED PERSONS:
20. Incriminating circumstances appearing in evidence were explained to the accused persons, as required under Section 313 Cr.P.C. They denied each and every circumstance appearing in evidence against them. They stated that no such incident had taken place. They stated that they were falsely implicated. They claimed false implication and pleaded innocence.
FIR No. 341/2014 State vs. Shamina & Ors. Page No. 5 of 25
21. The plea of the accused Nazreen is, as under:
"Question No. 54: Why the witnesses have deposed against you?
Answer: The complainant falsely implicated us in collusion with the police officials in order to evict Mr. Aftab, me and Shehnaz from H. No. 1753, Sanjay Basti, Timarpur, Delhi."
APPEARANCE:
22. I have heard arguments of Mr. Amit Dabas, Ld. Addl. PP for the State and Mr. Udaibir Singh, Advocate for the accused persons and examined the evidence, oral and documentary and perused written arguments filed by the defence CONTENTIONS OF THE PROSECUTION:
23. Ld. Addl. PP for the State contended that the complainant is an injured witness. He contended that the complainant narrated the incident and identified the accused persons. He contended that the incident was promptly reported and recorded. He contended that there was no delay in registration of FIR. He contended that seizure memos, Scene of Crime (SOC) report and photographs proved that a burnt pillow, scooty and mattresses were found at the place of incident. He contended that medical evidence proved that the complainant had sustained injury. He contended that there is no requirement that the prosecution should examine a particular number of witnesses to prove the charges. He contended that evidence of an injured witness cannot be discarded in the absence of any compelling reason. He contended that there is no material infirmity, inconsistency or contradiction in the case of the prosecution. He contended that minor contradictions in the evidence of the prosecution witnesses are natural. He contended that the prosecution proved the charges against the accused persons.
FIR No. 341/2014 State vs. Shamina & Ors. Page No. 6 of 25 CONTENTIONS OF THE DEFENCE:
24. Ld. Defence Counsel contended that the evidence of the complainant is inconsistent, contradictory and vacillating. He contended that the prosecution has not examined daughter and relatives of the complainant. He contended that the complainant is an inimical witness. He contended that evidence of the complainant cannot be accepted in the absence of corroboration. He contended that the complainant had not made call at 100. He contended that scooty belonged to Aftab, husband of the accused Nazreen. He contended that burnt burqa belonged to the accused Nazreen. He contended that the complainant, in cross- examination, stated that she did not know as to how the scooty and mattresses caught fired. He contended that the complainant stated that the accused persons were not arrested in her presence. He contended that Aftab was not made an accused. He contended that PW-3 SI Mohit Kumar, In-Charge, Crime Team stated that he inspected the place of incident in mid-night of 22/23.05.2014 whereas the date and time of the incident is 23.05.2014 at 11.30 a.m. He contended that there is no investigation regarding PCR caller. He contended that there are material contradictions in the depositions of the prosecution witnesses regarding place of recording of statements and arrest of the accused persons. He contended that time of medical examination of the complainant is corresponding the time of arrest of the accused persons and the complainant cannot be at two places at the same time. He contended that the prosecution witnesses have made contradictory statements on all material aspects. He contended that the prosecution has failed to bring home the charges. He contended that the prosecution failed to prove the charges beyond reasonable doubt.
FIR No. 341/2014 State vs. Shamina & Ors. Page No. 7 of 25 CONCEPT OF PROOF BEYOND REASONABLE DOUBT:
25. The golden principle of criminal jurisprudence is that the burden of proof is always on the prosecution and the accused is presumed to be innocent unless proven guilty. The Courts dealing with criminal cases should constantly remember that there is a long mental distance between "may be true" and "must be true". This basic and golden rule only helps to maintain the vital distinction between "conjectures" and "conclusions" to be arrived at on the touchstone of a dispassionate judicial scrutiny based upon a complete and comprehensive appreciation of all features of the case as well as quality and credibility of the evidence brought on record. The evidence must be 'weighed' and 'not counted'. It is the credibility of the evidence which is determinative. The prosecution is required to prove its case beyond 'reasonable doubt' and not 'all doubts'. The doubt which the law contemplates is not of a confused mind but of prudent man who is assumed to possess the capacity to "separate the chaff from the grain". The degree of proof need not reach certainty but must carry a high degree of probability. MODE OF ASSESSMENT OF EVIDENCE:
26. In criminal cases the Court cannot proceed to consider the evidence of the prosecution witnesses in a mechanical way. The broad features of the prosecution cases, the probabilities and the normal course of human conduct of a prudent person are some of the factors which are always kept in mind while evaluating the merit of the case. While appreciating the intrinsic worth of evidence, the Court must satisfy itself as to whether the evidence of the witness, if read in its entirety, has a ring of truth.
FIR No. 341/2014 State vs. Shamina & Ors. Page No. 8 of 25 LAW ON CONTRADICTIONS AND DISCREPANCIES:
27. While appreciating the evidence, the Court has to take into consideration whether the contradictions / omissions are of such magnitude that they may materially affect the trial.
Normally, omissions or contradictions which affect the basic structure of the prosecution case may be considered to be sufficient for giving benefit of doubt to the accused. When the contradictions are so serious and create doubt in the mind of the Court about the truthfulness of the statement, then such evidence is not safe to rely upon. Where the omission(s) amount to a contradiction, creating a serious doubt about the truthfulness of a witness and the other witness also makes material improvements before the Court in order to make the evidence acceptable, it cannot be safe to rely upon such evidence. The discrepancies in the evidence of witnesses, if found to be not minor in nature, may be a ground for disbelieving and discrediting their evidence. In such circumstances, witnesses may not inspire confidence and if their evidence is found to be in conflict and contradiction with other evidence or with the statement already recorded, in such a case it cannot be held that the prosecution proved its case beyond reasonable doubt. When the version given by the witness in the Court is different in material particulars from that disclosed in his earlier statements, the case of the prosecution becomes doubtful and not otherwise. The Courts have to label the category to which a discrepancy belongs. While normal discrepancies do not corrode the credibility of a party's case, material discrepancies do so. After exercising care and caution and sifting through the evidence to separate truth from untruth, exaggeration and improvements, the Court comes to a conclusion as to whether the residuary evidence is sufficient to convict the accused. The Court must form an opinion about credibility and trustworthiness of the witnesses.
FIR No. 341/2014 State vs. Shamina & Ors. Page No. 9 of 25
28. In Krishnegowda & Others vs. State of Karnataka, (2017) 13 SCC 98, Hon'ble Apex Court held, as under:
"33. It is the duty of the Court to consider the trustworthiness of evidence on record. As said by Bentham, "witnesses are the eyes and ears of justice". In the facts on hand, we feel that the evidence of these witnesses is filled with discrepancies, contradictions and improbable versions which draws us to the irresistible conclusion that the evidence of these witnesses cannot be a basis to convict the accused.
29. In State of Himachal Pradesh vs. Trilok Chand and Another, (2018) 2 SCC 342, Hon'ble Supreme Court of India held, as under:
"12. Going by the number of discrepancies in the prosecution case coupled with the contradictory statements by prosecution witnesses, the entire prosecution story vitiates and leads for discrediting its version. Contradictions in the statement of the witnesses are fatal for the case, though minor discrepancies or variance in their evidence will not disfavour....."
30. The Court must sift the chaff from the grain and find out the truth from the testimony of the witnesses. The evidence is to be considered from the point of view of trustworthiness and once the same stands satisfied, it ought to inspire confidence in the mind of the Court to accept the stated evidence. PRINCIPLES FOR APPRECIATION OF EVIDENCE:
31. In Munna Lal vs. State of Uttar Pradesh, 2023 SCC OnLine SC 80, Hon'ble Supreme Court of India delineated principles for appreciation of evidence, as under:
"28. Before embarking on the exercise of deciding the fate of these appellants, it would be apt to take note of certain principles relevant for a decision on these two appeals. Needless to observe, such principles have evolved over the years and crystallized into 'settled principles of law'. These are:
(a). Section 134 of Indian Evidence Act, 1872, enshrines the well-recognized maxim that evidence has to be weighed and not counted.
FIR No. 341/2014 State vs. Shamina & Ors. Page No. 10 of 25 In other words, it is the quality of evidence that matters and not the quantity. As a sequitur, even in a case of murder, it is not necessary to insist upon a plurality of witnesses and the oral evidence of a single witness, if found to be reliable and trustworthy, could lead to a conviction.
(b). Generally speaking, oral testimony may be classified into three categories, viz.:
(i) Wholly reliable;
(ii) Wholly unreliable;
(iii) Neither wholly reliable nor wholly unreliable.
The first two category of cases may not pose serious difficulty for the court in arriving at its conclusion(s). However, in the third category of cases, the court has to be circumspect and look for corroboration of any material particulars by reliable testimony, direct or circumstantial, as a requirement of the rule of prudence.
(c). A defective investigation is not always fatal to the prosecution where ocular testimony is found credible and cogent. While in such a case the court has to be circumspect in evaluating the evidence, a faulty investigation cannot in all cases be a determinative factor to throw out a credible prosecution version.
(d). Non-examination of the Investigating Officer must result in prejudice to the accused; if no prejudice is caused, mere non-examination would not render the prosecution case fatal.
(e). Discrepancies do creep in, when a witness deposes in a natural manner after lapse of some time, and if such discrepancies are comparatively of a minor nature and do not go to the root of the prosecution story, then the same may not be given undue importance."
EVIDENTIARY VALUE OF AN INJURED WITNESS:
32. In Ashok Kumar Singh Chandel vs. State of U.P., 2022 SCC OnLine SC 1525, Hon'ble Supreme Court of India delineated principles for appreciation of evidence of an injured witness, as under:
"183.....This principle is well established in cases where there are credible injured eye-witness testimonies. In Lakshman Singh v. State of Bihar, this Court held:
FIR No. 341/2014 State vs. Shamina & Ors. Page No. 11 of 25 "9. In Mansingh [State of M.P. v. Mansingh, (2003) 10 SCC 414 : (2007) 2 SCC (Cri) 390], it is observed and held by this Court that "the evidence of injured witnesses has greater evidentiary value and unless compelling reasons exist, their statements are not to be discarded lightly". It is further observed in the said decision that "minor discrepancies do not corrode the credibility of an otherwise acceptable evidence". It is further observed that "mere non-
mention of the name of an eyewitness does not render the prosecution version fragile".
xxxx xxxx xxxx 9.2. The aforesaid principle of law has been reiterated again by this Court in Ramvilas [Ramvilas v. State of M.P., (2016) 16 SCC 316 : (2016) 4 SCC (Cri.) 850] and it is held that "evidence of injured witnesses is entitled to a great weight and very, cogent and convincing grounds are required to discard their evidence". It is further observed that "being injured witnesses, their presence at the time and place of occurrence cannot be doubted"."
33. An injured witness has been accorded a special status in law. Presence of injury is an inbuilt guarantee of his presence at the time of incident. His testimony cannot be discarded in the absence of compelling reasons. ANALYSIS AND DISCUSSION:
34. PW-1 Smt. Firdos is the complainant. She deposed, as under:
"On 23.09.2014 at around 11.30 a.m., I was present at my house alongwith my children. Aftab is my nephew (Bhanja) and used to reside with me in the above said premises. After Aftab got married, I asked him to shift to some other place. Aftab refused to pick up his goods and he refused to shift from my house and this was the cause of quarrel. Aftab called the accused Nazreen, his niece (Bhanji), Shamina, mother-in-law of Aftab and Shehnaz, wife of Aftab. All the three accused persons given beatings to me and the accused Nazreen snatched my gold chain worn by me at that time. All the three accused persons put my belongings i.e. clothes and bedding on fire. The accused persons had also caused damages to the household articles and they had also damaged my scooty bearing No. 1256, which was parked outside my house. I called at 100 number.
FIR No. 341/2014 State vs. Shamina & Ors. Page No. 12 of 25 Police came to my residence alongwith lady police officials. My statement Ex.PW1/A was recorded bears my signatures at point A. I was taken to AAA Hospital for medical examination. I had injury on my right shoulder. My blood sugar and BP also increased due to the quarrel. All the accused persons were at the spot itself, when police arrived and they were apprehended by the police at my instance. Again said, the accused concealed themselves in the adjacent house and the police had apprehended the accused persons from the adjacent house which belongs to Sunita. My scooty was seized by the police, vide seizure memo Ex.PW1/B bears my signatures at point A. The police also seized the burnt clothes and mattresses, vide memo Ex.PW1/C bears my signatures at point A. All the accused persons were arrested, vide arrest memo Ex.PW1/D (Samina), Ex.PW1/E (Nazreen), Ex.PW1/F (Shehnaz), all the arrest memos bears my signatures at point A. Personal search of the accused persons were also conducted. The same are Ex.PW1/G, Ex.PW1/H & Ex.PW1/J respectively. Disclosure statement of the accused also recorded. The same are Ex.PW1/K, Ex.PW1/L & Ex.PW1/M respectively bear my signatures at point A. All the accused persons present in the court today correctly identified by the witness.
I can identify the case property, if shown to me. At this stage, MHC(M) produced one plastic katta without any seal. It is opened and found containing partly burnt clothes wrapped in a bed sheet. As per the witness, these are the clothes which belong to her and seized by the police on the date of incident. Burnt clothes as well as the bed sheet is collectively Ex.P1. MHC(M) produced one mattress partly burnt. As per the witness, the same is mattress which was seized by the police. The same is Ex.P2.
The scooty which was damaged by the accused persons was financed by me but it was in the name of Aftab and it was obtained from the court by Aftab. The scooty was got released by Aftab.
I can identify the scooty. At this stage, it is noticed that the scooty has already been released on superdari to one Aftab, who is the husband of one of the accused. Ld. Defence Counsel does not want to get the same produced. The photograph of scooty are already on the judicial record. The witness has identified the scooty in the photograph as Ex.PX1.
FIR No. 341/2014 State vs. Shamina & Ors. Page No. 13 of 25 XXXX by Sh. Udaibir Singh, Ld. Counsel for all accused persons (recorded on 11.12.2015). It is correct that on 23.9.2014, I was present at my house No. 1753, Sanjay Basti, Timarpur, Delhi alongwith my children at 11.30 a.m. I have two children. My daughter is aged about 20 years and son is of 17 years. My both children were not having mobile phone at that time. Aftab was residing with me, who is my cousin. The wife of Aftab was also residing with me at the same address. (Vol. At the time of incident, she had gone to her parental home). I never asked straightway to Aftab to go out from my house. (Vol. I had told him that he had got married, so he should reside separately). I have brought the documentary proof of ownership of my above said house No. 1753. Witness produced his election card No. JRL0777524, which bears address 1753, Sanjay Basti, Old Quarters, Timarpur. It is wrong to suggest that I was not residing at house No. 1753, at the time of incident. (Vol. I own two house). It is wrong to suggest that at the time of incident, I was residing in Gali No. 9, Wazirabad Village. (Vol. The construction work was going on in my said house and I used to go to there but at the time of incident, I was residing at house No. 1753). No quarrel between me and wife of Aftab had taken place prior to 23.09.2014. It is correct that on 21.05.2014, quarrel had taken place between me and Aftab, his wife, niece and mother-in- law and the said quarrel continued till 23.09.2014. It is correct that police was called by the accused persons. It is wrong to suggest that I myself had put fire on the mattress of my house and scooty. My husband resides with me. My husband had gone to the office on that day. I did not inform my husband on telephone about the incident. He came to know when he returned in the evening. I do not know that mobile number 9310309937 belongs to whom. At the time of incident, I was present in my house alongwith my daughter. My daughter was studying in B.A. First year in Ambedkar University, Kashmere Gate. At the time of admission of my daughter in BA, I had given the address of Wazirabad. I know one Sabra, who is the wife of my brother and I called her at my house for treatment of my brother, who was suffering from TB. My brother was also staying with me for his treatment at that time. My brother and his wife Sabra were also present at the time of incident. (Vol. They had moved in a side and did not take part in the quarrel). I had not called the police and they came on their own.
FIR No. 341/2014 State vs. Shamina & Ors. Page No. 14 of 25 It is correct that I did not tell in my statement about the presence of my brother and Sabra. I do not know what proceedings were conducted by the police at the spot. Police never asked me about the presence of my daughter in the house at the time of incident, so I did not tell this fact to the police. Sabra had not called the police on the day of incident. (Vol. Though I had told Sabra, she could call police, if needed, when I started going to my work). Police had come after 10-15 minutes after 11.30 a.m. I do not remember how many police officials had come. So far as I remember, SHO, Sombir and two lady constables had come. Lady Constable was not accompanying when the police at 100 number was called. (Vol. Police had come on 23.05.2014 alongwith two ladies constables as mentioned in my statement earlier). The above said fact has not been mentioned any where in my statement recorded by police. It is correct that on 23.05.2014, police had taken me also to the PS and a compromise took place and when I returned to my house, accused Shamina, Shehnaz and Nazneen were present in my house and they gave beatings to me. Aftab was also present but he had gone outside the house. The said compromise had taken place in the office of ACP, Sarai Rohilla. I do not remember the date of compromise. (Vol. I am a sugar patient so I cannot recollect the date frequently). XXXX by Sh. Udaibir Singh, Ld. Counsel for all the accused persons (recorded on 09.05.2016). It is wrong to suggest that when I had come from outside, the three accused persons, who had been sitting there, had not beaten me. Scooty bearing No. DL 5S AL 1256 was in the name of Aftab and it has been run by the accused persons but the amount of Rs. 40,000/- for purchasing the scooty was given by me. It is wrong to suggest that I had not financed the amount of Rs. 40,000/- to Aftab for purchasing the scooty. I had not accompanied Aftab for purchasing the scooty. I have no proof for financing the amount of Rs. 40,000/- to Aftab. The mattress on which fire was broken out was of double bed. Other mattress is in the house. I cannot bring the quilt in the court because the mattress was broken due to changing of the house. It is wrong to suggest that the mattress belongs to the Aftab and the other mattress is still in possession of Aftab. I am not in possession of any bill of purchasing the bed sheet, clothes on which the fire was broken out. It is wrong to suggest that the pillow cover of the bed sheet on which the fire was broken out, is still in possession of Aftab and the bed sheet belongs to Aftab.
FIR No. 341/2014 State vs. Shamina & Ors. Page No. 15 of 25 Burqa in which the fire was broken out belongs to Shehnaz. (Vol. Shehnaz and her husband Aftab have been residing with me as such Burqa of Shahbaz was there.) It is wrong to suggest that Nazneen was residing in the premises. I do not know if aadhar card of Nazneen was prepared in the above said address. Aftab and Shehnaz were married on 19.02.2014. I was taken to the hospital by the police officials including two ladies police. I am not aware whether all the three ladies present in the court were arrested before I was taken to the hospital. First of all, I was taken to the PS and thereafter, I was referred to the hospital and I cannot tell definitely as to when I was taken to the hospital. I am not aware whether three accused person were arrested in my presence. I was already heart and sugar patient. I remained hospitalized for approx. three hours in the hospital. Doctor had given me the insulin. Doctor had also got ECG of mine. No other treatment was given by the doctor. It is wrong to suggest that on that day, I had not sustained any injury. I am not aware whether I had returned to my house from the hospital or first, I was taken to the PS. Scooty key was with Aftab and his sister Tabassum. Tabassum was with the accused persons on that day in the quarrel. Tabassum had not beaten me. I had not apprised the police that Tabassum was with the accused persons on that day. No fire was broken out on the bed. Police had taken the photographs of the scene of crime in my presence. The four photographs placed on record Ex.PX1 (Colly.) had taken by the police in my presence. I am not aware whether police had taken the other photographs besides the above said four photographs placed on the record. I am not aware whether I had lodged any other complaint besides this complaint against Aftab and these three accused persons. I do not know as to how the scooty caught fire. I do not know how the mattress was got fired. (Vol. All the three persons present in the Court had quarreled with me and out of one might have set the fire into the mattress). I am not aware whether Shehnaz had lodged any complaint before this complaint against me. I am not in possession of any bill of the gold chain which was allegedly snatched by Nazneen. (Vol. My mother had given the gold chain 25 years back to me as such, I am not in possession of bill of the gold chain. Nazneen had snatched my chain in the quarrel). I do not know English language. I am not aware as to who written the complaint Ex.PW1/DA on behalf of me in English language. However, the signature on the complaint Ex.PW1/DA is of mine.
FIR No. 341/2014 State vs. Shamina & Ors. Page No. 16 of 25 Police himself had arrested the accused persons present in the court after inquired from me about the incident. I had not identified the accused persons. I am not aware at which time the accused persons were arrested. It is wrong to suggest that I am deposing falsely as nothing was happened as deposed by me in my statement or that whole of the story was concocted or that accused persons had not sat fire into any mattress or the clothes lying there or the scooty."
(emphasis supplied)
35. The first issue before the Court is whether the evidence of the complainant is reliable or not. The next issue before the Court is whether the prosecution could probabilise its case. Whether the complainant is an inimical and interested witness and her evidence should receive corroboration from independent evidence. Whether there are contradictions of such nature which can render the case of the prosecution doubtful.
36. The case of the prosecution is that Aftab was residing with the complainant in her house and after his marriage with the accused Shehnaz, the complainant asked him to vacate her house and on this issue, the complainant used to have frequent quarrels with him. It is further case of the prosecution that on 23.05.2014 at about 11.30 a.m., the accused persons reached at the house of the complainant and abused her and assaulted her and they damaged her household articles and the accused Nazreen snatched her gold chain and the accused Shamina set her bed on fire. It is further case of the prosecution that the accused Shehnaz set her scooty on fire and thereafter, the complainant made call at 100. It is further case of the prosecution that the accused persons were arrested in front of H. No. 1750, Sanjay Basti, Timarpur, Delhi. It is further case of the prosecution that the complainant sustained 'simple' injury in the form of 'superficial abrasion over her right arm' and damaged scooty and other articles were seized from the place of incident. FIR No. 341/2014 State vs. Shamina & Ors. Page No. 17 of 25
37. In her evidence, the complainant stated the date of incident as '23.09.2014' instead of '23.05.2014'. The prosecution did not re-examine the complainant on the date of incident. On the aspect of the cause of quarrel, the complainant stated that she never asked Aftab to leave her house. She stated that she had told him that he is married and he should reside separately. In her examination-in-chief, the complainant stated that she called at 100. On the contrary, in her cross-examination, she stated that the accused persons called the police. She stated that she had not called police and the police officials came on their own. She could not state as to whom mobile No. 9310309937 belonged. The complainant did not state anything in complaint Ex.PW1/A regarding presence of her daughter in her house at the time of incident. However, in her examination-in- chief, she stated that she was present in her house with her children. In her cross-examination, she stated that she has two children. She has a daughter around 20 years and son around 17 years. She stated that at the time of incident, her daughter was present in her house. She stated that her daughter is student of B.A. 1st year in Ambedkar University, Kashmere Gate, Delhi. She stated that her brother and Ms. Sabra, her sister-in-law were present at the time of incident. However, the prosecution has not examined them.
38. In her evidence, the complainant presented a different sequence of events leading to the incident. In her cross- examination, the complainant stated that on 23.05.2014, police had taken her also to police station where a compromise had taken place in the office of ACP, Sarai Rohilla and when she returned to her house, the accused persons assaulted her.
FIR No. 341/2014 State vs. Shamina & Ors. Page No. 18 of 25
39. The complainant stated that police recorded her statement Ex.PW1/A and thereafter, she was sent to Aruna Asaf Ali Hospital for medical examination. She also stated that the accused persons were apprehended from adjacent house and they were arrested, vide arrest memos Ex.PW1/D to Ex.PW1/F. However, the complainant, in her cross-examination, stated that firstly, she was taken to police station and thereafter, she was sent to the Aruna Asaf Ali Hospital, Delhi. The case of the prosecution is that PW-14 SI Sombir recorded statement of the complainant Ex.PW1/A at the place of incident and sent PW-11 Ct. Rajesh Kumar to police station for registration of case and thereafter, he had arrested the accused persons from the place of incident at the instance of the complainant. However, PW-2 Ct. Ritika, in her evidence, stated that the accused persons were brought to the police station where they were arrested, vide arrest memos Ex.PW1/D to Ex.PW1/F. In her cross- examination, she stated that the complainant came to the police station and statement of the complainant Ex.PW1/A was recorded in the police station.
40. The case of the prosecution is that the Crime Team inspected the place of incident and taken photographs of the place of incident before arrest of the accused persons at 02.30 p.m. on 23.05.2014. PW-2 Ct. Ritika also stated to this effect. On the contrary, PW-3 SI Mohit Kumar, In-Charge, Crime Team stated that they had visited the place of incident in the mid-night of 22/23.05.2014. There was no occasion for PW-3 SI Mohit Kumar to inspect the place of incident before occurrence of incident. Irrespective of date of inspection of the place of the incident, there was no occasion for inspection of the place of the incident in mid-night hours.
FIR No. 341/2014 State vs. Shamina & Ors. Page No. 19 of 25
41. The case of the prosecution is that the accused persons were arrested near the place of incident between 02.30 p.m. to 03.30 p.m. on 23.05.2014, vide arrest memos Ex.PW1/D to Ex.PW1/F, at the instance of the complainant whereas the complainant was medically examined in Aruna Asaf Ali Hospital, Delhi at 02.15 p.m. on 23.05.2014 and thereafter, she was examined by EMO and SR (Medicine). The complainant stated that she remained hospitalized for 3 hours in Aruna Asaf Ali Hospital, Delhi. Therefore, there was no occasion for the complainant to witness the arrest of the accused persons from the place of incident between 02.30 p.m. to 03.30 p.m. on 23.05.2014.
42. The complainant stated that the accused persons set her scooty on fire. However, the said scooty did not belong to the complainant. Faced with this, the complainant stated that the said scooty was in the name of Aftab and she had financed the said scooty. Aftab got the said scooty released on superdari. Therefore, it is highly improbable that the accused persons would set the scooty belonging to Aftab on fire.
43. The case of the complainant is that the accused persons damaged household articles and set her clothes and bed on fire. However, she has not stated as to how the accused persons set her clothes and bed on fire. There is no photograph of any of the household articles damaged by the accused persons.
44. Investigating Officer did not seal burnt clothes and bed-sheet seized by him from the place of incident. MHC (M) produced the case property before the Court in unsealed condition.
FIR No. 341/2014 State vs. Shamina & Ors. Page No. 20 of 25
45. There are contradictions in the statements of the police officials on vital aspects. According to MLC Ex.PW12/A, PW-7 Ct. Shabnam had taken the complainant to Aruna Asaf Ali Hospital, Delhi for medical examination. However, PW-7 Ct. Shabnam stated that she had not taken the complainant to hospital. PW-2 Ct. Ritika and PW-7 Ct. Shabnam stated that they had extinguished the fire whereas in their cross- examination, they stated that fire had already been extinguished when they entered into the room. PW-14 SI Sombir stated that fire was already extinguished when they reached at the place of incident. PW-7 Ct. Shabnam stated that the entire scooty was damaged due to fire whereas PW-14 SI Sombir deposited scooty No. DL 5S AL 1256 in slightly burnt condition under its seat with PW-10 ASI Satender. PW-14 SI Sombir did not ascertain the identity of the callers. He did not verify ownership of the scooty.
46. On examination of the complainant's evidence in the light of the other prosecution evidence, oral and documentary, and the aforesaid discussion, it is evident that the incident in question had taken place inside and outside the house. Public witnesses examined to prove that the accused persons set the scooty on fire did not support the case of the prosecution. The complainant also stated that she does not know as to how the scooty caught fire. Regarding the incident inside the house, inhabitants of the house are the natural and material witnesses. However, the prosecution has not examined children and relatives of the complainant who were present inside the house at the time of incident. The complainant had inimical relation with the accused persons. Her evidence is not corroborated by any other witness.
FIR No. 341/2014 State vs. Shamina & Ors. Page No. 21 of 25
47. On examination of the complainant's evidence, this Court is of the considered opinion that the evidence of the complainant is 'wholly unreliable'. The complainant has not stated the correct date of the incident. She made false statement that she made call at 100. The scooty belonged to Aftab. The sequence of events stated by the complainant is not corresponding to the case of the prosecution. The case of the prosecution is that on 23.05.2014 at about 11.30 a.m., the accused persons forcibly entered into the house of the complainant and assaulted her and thereafter, they set her clothes and mattresses on fire and damaged household articles and thereafter, the statement of the complainant was recorded at the place of the incident and the accused persons were arrested from adjacent house. On the contrary, the complainant stated that on 23.05.2014, the police had taken her to police station where a compromise had taken place between them in the office of ACP, Sarai Rohilla and when she returned to her house, the accused persons had assaulted her.
48. The case of the prosecution is that the incident had taken place on 23.05.2014 at about 11.30 a.m. whereas Crime Team inspected the place of incident in the intervening night of 22/23.05.2014.
49. The case of the prosecution is that the statement of the complainant was recorded at the place of incident whereas PW-2 Ct. Ritika stated that the statement of the complainant was recorded in the police station.
50. The case of the prosecution is that the accused persons were apprehended from the place of incident whereas PW-2 Ct. Ritika stated that the accused persons were arrested in the police station, vide arrest memos Ex.PW1/D to Ex.PW1/F. FIR No. 341/2014 State vs. Shamina & Ors. Page No. 22 of 25
51. The case of the prosecution is that on 23.05.2014 between 02.30 p.m. to 03.30 p.m., the accused persons were arrested from the place of the incident, vide arrest memos Ex.PW1/D and Ex.PW1/F, at the instance of the complainant, whereas on 23.05.2014 at about 02.15 p.m., the complainant was examined in Aruna Asaf Ali Hospital, Delhi, vide MLC Ex.PW12/A and she remained hospitalized there for 3 hours. PW-14 SI Sombir did not seal the case property after seizure and ascertain the identity of the callers.
52. Therefore, there are material contradictions in the time and date of the incident, sequence of the incident, place of recording of the statement of the complainant, date and time of inspection of the place of incident by Crime Team, time and place of the arrest of the accused persons, time of medical examination of the complainant and ownership of the scooty. The prosecution has not examined daughter and relatives of the complainant. There are material defects in the investigation. PW-14 SI Sombir did not ascertain identity of PCR callers. He did not seal the case property after seizure. He did not investigate as to how the clothes and bed and mattresses were set on fire. The accused persons cannot be convicted on the basis of the nature and quality of evidence adduced by the prosecution.
53. The prosecution failed to establish charges under Section 452/34 IPC, 323/34 IPC, 427/34 IPC, 435/34 IPC and 436/34 IPC against the accused persons beyond reasonable doubt.
FIR No. 341/2014 State vs. Shamina & Ors. Page No. 23 of 25 CONCLUSION:
54. The accused Shamina, Nazreen and Shehnaz are acquitted from offences under Section 452/34 IPC, 323/34 IPC, 427/34 IPC, 435/34 IPC and 436/34 IPC.
Announced in the open Court SANJAY SHARMA-II on this 28th August, 2023 Addl. Sessions Judge-03 (Central) Tis Hazari Courts, Delhi FIR No. 341/2014 State vs. Shamina & Ors. Page No. 24 of 25 State vs. Shamina & Ors.
CNR No. DLCT01-000427-2015 SC No. 27324/2016 FIR No. 341/2014 Under Section 323/427/452/435/436/34 IPC PS Timarpur 28.08.2023 Present : Mr. Amit Dabas, Ld. Addl. PP for the State.
Mr. Udaibir Singh, Advocate with the accused persons, namely, Shamina, Nazreen and Shehnaz.
Vide separate judgment announced in the open Court, the accused persons, namely, Shamina, Nazreen and Shehnaz are acquitted from offences under Section 452/34, 323/34, 427/34, 435/34 and 436/34 IPC. The accused persons are admitted to bail on furnishing personal bond in the sum of Rs. 10,000/- each with one surety in the like amount, as required under Section 437A Cr.P.C. As requested, requisite bonds be furnished within one week. File be consigned to record room.
Sanjay Sharma-II ASJ-03, Central District Tis Hazari Courts, Delhi 28.08.2023 FIR No. 341/2014 State vs. Shamina & Ors. Page No. 25 of 25