Delhi District Court
Criminal Case/40/2008 on 2 December, 2013
1
IN THE COURT OF MS. SAUMYA CHAUHAN,
METROPOLITAN MAGISTRATE, SOUTH EAST DELHI, SAKET
State v. Mukhtiyar Ali & Ors.
FIR No. 147/2008
PS Jamia Nagar
U/s 341/323/427 IPC & 336 IPC & 25/27/59/59 Arms Act
JUDGMENT
C C No. : 40/1/10
Date of Institution : 05.10.2009
Date of Commission of Offence : 26.06.2008
Name of the complainant : Mohd. Iqbal
S/o Nanhe Pahalawan
R/o House No. 647, Gali No. 11,
Zakir Nagar, Jamia Nagar, New Delhi
Name & address of the accused : A-1 Mukhtiyar Ali
S/o Ali Sher
R/o D-14/291, Jamia Nagar, New
Delhi
A-2 Shamsher Ali
S/o Ali Sher
R/o D-14/291, Jamia Nagar, New
Delhi
A-3 Zafar Ali
S/o Ali Sher
R/o D-14/291, Jamia Nagar, New
Delhi
Offence complained of : U/s 341/323/427 IPC & 336 IPC
& 25/27/59/59 Arms Act
Plea of accused : Pleaded not guilty
State v. Mukhtiyar & Ors. U/s 341/323/427 IPC & 336 IPC
FIR No. 147/2008, PS Jamia Nagar & 25/27/59/59 Arms Act 2 Final Order : Acquitted Date of reserve for judgment : 28.11.2013 Date of announcing of judgment : 02.12.2013 BRIEF STATEMENT OF THE REASONS FOR THE DECISION
1. Vide this judgment this court shall dispose of the present case u/s 341/323/427/336 IPC & 25/27/59/59 Arms Act
2. The story of the prosecution is that on 26.06.2008 at about at H. No. 87/11, in front of Zakir Nagar, Jamia Nagar New Delhi, falling within the jurisdiction of Police Station Jamia Nagar, the complainant Mohd. Iqbal was returning to his home. He saw that the accused persons along with his 8- 10 workers were standing in the street outside his house. He objected to the same and asked them to leave the place. At this, the accused Shamsher and Mukhtyar started abusing him. They restrained the way of the complainant. They also called their brother Zafar and they all started beating the complainant. The accused Mukhtiyar went inside his house and returned back with a rifle and made two shots in the air. Thereafter, all three accused pelted stones on the complainant's house from their rooftop and damaged cars parked in the street. All the accused persons in furtherance of their common intention wrongfully restrained the way of complainant Mohd. Iqbal and caused simple blunt injuries to him. All the accused persons in furtherance of their common State v. Mukhtiyar & Ors. U/s 341/323/427 IPC & 336 IPC FIR No. 147/2008, PS Jamia Nagar & 25/27/59/59 Arms Act 3 intention caused mischief by damaging the glass of Maruti Zen Car bearing no. DL9CN0452 and Maruti Swift car bearing no. DL3CAY 3647 by throwing stone. The accused Mukhtiyar Ali was also found in possession of a rifle in controvention of the notification issued by Delhi Administration and fired the same twice in the air so rashly and negligently so as to endanger human life and the personal safety of others. Thus, accused Mukhtiyar Ali is alleged to have committed offence punishable under section 341/323/427/336/34 IPC & 25/27/59/59 Arms Act and accused Shamsher Ali and Zafar Ali are alleged to have committed offence punishable under Section 341/323/427/34 IPC.
3. Charge sheet was filed against the accused persons in the court. Documents were supplied to the accused persons and thereafter charge under Section 341/323/427/336/34 IPC & 25/27/59/59 Arms Act was framed against the accused Mukhtiyar Ali and charge under Section 341/323/427/34 IPC was framed against the accused Shamsher Ali and Zafar Ali vide order dated 30.05.2011 to which they pleaded not guilty and claimed trial.
4. In order to prove the charge against the accused, the prosecution examined following six witnesses namely (1) SI Sumer Singh (2) Mohd. Iqbal (3) Mohd. Sualin (4) Ct. Kuldeep Singh (5) HC Ashok Kumar (6) SI B. D. Khan.
5. PW-1 SI Sumer Singh proved the FIR as Ex. PW1/A and endorsement on rukka as Ex. PW1/B. State v. Mukhtiyar & Ors. U/s 341/323/427 IPC & 336 IPC FIR No. 147/2008, PS Jamia Nagar & 25/27/59/59 Arms Act 4
6. PW-2, Mohd. Iqbal could not recall the date of the alleged incident. However, he deposed that on that day, he was coming from Purani Delhi to his house at Okhla in the night time between 8.00 pm to 9.00 pm. He reached at his house at 10.00 pm. There he saw that Jafar, Shamsher, Mukhtar and some other persons were standing in front of his house. He asked them as to why they are standing there. They started abusing him. They started scuffling with him. He sustained injuries in the above scuffling. Police came at the spot and took him to the hospital. Police recorded his statement in the hospital which is Ex. PW2/A. Witness deposed that some one had fired in the above said incident. He could not say who had fired in the accident whether they were accused persons or some outsiders. Police also recorded his statement in the PS but he did not remember the date on which his statement was recorded. Witness identified the accused persons present in the court who had scuffled with him due to which he had sustained injuries.
7. This witness was cross examined by the Ld. APP for State after taking permission from the court. During cross examination by APP, PW-1 could not recall whether the above said incident had occurred on 26.06.2008 at 11.30 pm in the night. He admitted that he had objected at Shamsher, Mukhtar and Zafar along with their laborers standing in front of his house. However, he could not recall whether Shamsher had stated to Mukhtar that "Mukhtar bhai State v. Mukhtiyar & Ors. U/s 341/323/427 IPC & 336 IPC FIR No. 147/2008, PS Jamia Nagar & 25/27/59/59 Arms Act 5 Is Ko Parkro Is Ko Abhi batate hai". He did not remember whether Zafar was called by their brothers Shamsher and Mukhtar. He admitted that some one had hit on his head by object like rod but he could not tell about the person who had hit him as there was power cut in the area and it was dark. He admitted that no other persons except Zafar, Mukhtar and Shamsher and their labours were present at the time when the rod was inflicted upon him. He denied the suggestion that accused Shamsher had beaten him by fist and legs. He admitted that when he was being beaten by the accused persons, public persons had also gathered there after hearing his shouts. He admitted that the firing was done but he denied the suggestion that firing was done by Mukhtar. He categorically stated that he did not see Mukhtar was having rifle in his hands. He denied the suggestion that Mukhtar, Shamsher and Zafar had thrown stone from roof of their house on him. He admitted that two vehicles were standing at the spot. He could not say whether both the vehicles had been damaged by throwing stones. He did not remember how many firing were done in the air. He denied the suggestion that the said firing was done on him for the purpose of killing but admitted that firing was done. He could not identify the rifle by which firing was done as there was dark due to power cut.
State v. Mukhtiyar & Ors. U/s 341/323/427 IPC & 336 IPC FIR No. 147/2008, PS Jamia Nagar & 25/27/59/59 Arms Act 6
8. During cross examination by the Ld. Counsel for accused persons, PW-1 admitted that Zafar along with their brothers were residing in his locality for many years and they have friendly relations. He admitted that no other incident of quarrellings occurred between him and his neighbours Zafar except the present incident. He admitted that fabrication work was going on in the house of Zafar and that 20-25 workers were living inside the factory premises. He admitted that workers wandered in the street in the night time after finishing their work. He admitted that on the day of incident he had objected to the workers walking in the street at night and he had asked them to go inside or he would make complaint against them. But the workers did not follow his instructions and kept walking in the street. He further deposed that in the meanwhile some other persons of the locality also came at the spot and asked to the workers to go inside. He admitted that he had sustained injuries on that issue. Witness deposed that at that time, Zafar along with Shamsher and Mukhtar were not present at the spot. He deposed that he made complaint to the police about the misbehaving done by the workers of the Zafar but he did not know the name of the workers and that is why police had written the name of Zafar along with his brothers. He did not know the workers who had beaten him as they had left the factory after the incident. State v. Mukhtiyar & Ors. U/s 341/323/427 IPC & 336 IPC FIR No. 147/2008, PS Jamia Nagar & 25/27/59/59 Arms Act 7
9. The said witness was re-examined by the Ld. APP for Sate after taking permission from the court. During re-examination, witness admitted that he had stated to the police that the incident had occurred with the labours. He admitted that the above-said fact was not mentioned in his statement Ex. PW2/A given to the police. He admitted that Shamsher, Mukhtar and Zafar also came out of their room after hearing the quarreling noise. But when some one had scuffled with him and started beating him by object like rod, there was darkness due to night.
10.During cross examination by Ld. Defence Counsel, witness admitted that he is an illiterate person and can only sign in Urdu. He did not know what police had recorded in his complaint and had signed on his complaint on the instruction of the police.
11. PW-3 Mohd. Sualin could not recall the date of incident. He deposed that on the date of incident, time was at about 10.00-11.00 pm in the night. At that time there was a power-cut in their area. He heard some noise of quarreling of some persons. He found that his uncle namely Mohd. Iqbal and some other persons of locality were in street and he heard the noise that "Jhagra ho gaya
-Jhagra ho gaya". Witness deposed that he saw that his uncle was injured and blood was oozing out from his face. Thereafter, he went back to his house. Police did not record his statement but police had enquired him about State v. Mukhtiyar & Ors. U/s 341/323/427 IPC & 336 IPC FIR No. 147/2008, PS Jamia Nagar & 25/27/59/59 Arms Act 8 the incident and he had told the said fact to the police. Witness deposed that he had not seen the person who had gave injuries to his uncle Mohd. Iqbal. After the incident, some one called to the police and police came at the spot and took his uncle to the hospital by PCR van.
12.This witness was cross examined by the APP after taking permission from the court. During cross examination of APP, he admitted that he is the nephew of injured Mohd. Iqbal. He admitted that his uncle Mohd. Iqbal was beaten up by some one person. He denied the suggestion that Mukhtar, Shamsher and Jaffar had beaten up his uncle. Witness denied that he had told the police that he had seen that Zafar and Mukhtar were beating up Mohd. Iqbal. He denied the suggestion that he had told the police that Mukhtar told his brother to bring the rifle. He denied the suggestion that Mukhtar brought the rifle from his house and made fires in air. He denied the suggestion that he along with his uncle ran inside their house to save themselves. He further denied the suggestion that Shamsher, Zafar and Mukhtar climbed on the roof of his room and started throwing stone on standing cars. He denied the suggestion that glass of window got damaged by throwing of pellets by the accused. Witness stated that he had not sustained injuries in the incident of beating. He denied the suggestion that he was deposing falsely having being won over by the accused persons and being a neighbour.
State v. Mukhtiyar & Ors. U/s 341/323/427 IPC & 336 IPC FIR No. 147/2008, PS Jamia Nagar & 25/27/59/59 Arms Act 9
13.PW-4 Ct. Kuldeep Singh deposed that on 26.06.2008 he was posted at PS Jamia Nagar as constable. On that day, his emergency duty was from 8.00 pm to 8.00 am. At about 11.55 pm, one information of incident of firing from house no. 135, Zakir Nagar, New Delhi in the PS Jamia Nagar was received. DD No. 33A was recorded in this respect and given to ASI B. D. Khan. He along with ASI B.D. Khan reached at the above said house. There they were informed that PCR van had taken the injured to the AIIMS Trauma Centre. ASI B. D. Khan left him at the spot and went to AIIMS Trauma Centre. ASI B. D. Khan again returned back at the spot and prepared Tehrir and handed over to him for registration of FIR. He went to the PS and got registered FIR and returned back at the spot along with copy of FIR and original rukka and handed over the same to the IO. In the meanwhile, injured Iqbal also came at the spot and he told that accused namely Shamsher, Mukhtar and Jafar Ali had attacked on him and he sustained injuries due to attack. One Rifle, four live cartridges and two empty cartridges were recovered from the house no. D-14/291, Zakir Nagar, Delhi belonging to the accused persons. IO prepared sketch memo of the recovered rifle, live cartridges and empty cartridges. IO also seized all the recovered articles vide seizure memo Ex. PW4/A. IO also seized license of the rifle vide seizure memo Ex. PW4/B. Thereafter, all the accused persons were arrested and their personal search was conducted vide State v. Mukhtiyar & Ors. U/s 341/323/427 IPC & 336 IPC FIR No. 147/2008, PS Jamia Nagar & 25/27/59/59 Arms Act 10 memos Ex. PW4/C, Ex. PW4/D, Ex. PW4/E, Ex. PW4/F, Ex. PW4/G, Ex. PW4/H bearing his signature at point A respectively. Thereafter, they returned back at the PS along with accused persons and recovered articles and recovered articles were deposited in Malkhana. IO recorded his statement. Witness identified the case property in the court.
14.During cross examination, witness deposed that he received the DD entry in the PS at about 11.55 pm. He reached at the spot at about 12.00 mid night by motorcycle along with ASI B. D. Khan. He admitted that when they reached at the spot injured was not present there. ASI B. D. Khan returned back from the hospital at about 1.30 am in the night. Statement of the injured was not recorded in his presence. He left the spot at about 3.00 am to register the FIR in the police station after taking rukka from ASI B. D. Khan. He did not remember whether IO had recorded his statement under Section 161 Cr.P.C. He denied the suggestion that he had not accompanied the IO in the investigation of the present case and is deposing in this case on the instances of the IO being a police person. He admitted that the rifle recovered from the house of accused persons belonged to the father of the accused persons and he had produced licence of the same to the IO. He admitted that incident of firing had not occurred in his presence and he has no knowledge whether the fact of firing by the rifle was disclosed by the complainant to the IO or not. State v. Mukhtiyar & Ors. U/s 341/323/427 IPC & 336 IPC FIR No. 147/2008, PS Jamia Nagar & 25/27/59/59 Arms Act 11 When they first reached at the spot, they did not find any rifle or used cartridges or sign of any firing at the spot. He admitted that when they reached at the spot, labours of the sewing machines were also present at the spot. During the stay he came to know that some quarrel had taken place between the complainant and the above said labours. He admitted that during stay he had not ascertained from the persons of the locality that as to how the injured person had sustained injury and who had inflicted the injuries to him. He denied the suggestion that he did not visit at the spot during the investigation thats why he had not asked from any person about the injury of the injured or firing of the incident. He denied the suggestion that he had signed on the document at the instance of the IO while sitting in the police station. He denied the suggestion that no such recovery was effected from the accused persons.
15.PW-5 HC Ashok Kumar deposed that on 27.06.2008 he was posted as a constable at PS Jamia Nagar. On that day, he was patrolling in beat area Zakir Nagar. At about 12.10 am in the night he reached at Gali No.11 and there he saw gathering of the public persons in the street. In the meanwhile, ASI B. D. Khan also reached at the spot. There, he came to know that injured has already been removed in the hospital by CAT ambulance. ASI B. D. Khan left him at the spot and went to AIIMS Trauma Centre to meet injured person. State v. Mukhtiyar & Ors. U/s 341/323/427 IPC & 336 IPC FIR No. 147/2008, PS Jamia Nagar & 25/27/59/59 Arms Act 12 After sometime he returned back at the spot and prepared the site plan. During absence of IO ASI B . D Khan no one had tampered with the spot. IO recorded his statement.
16.During cross examination, he admitted that incident had not taken place in his presence and he had reached at the spot after the incident was over.
17.PW-6 SI B. D. Khan deposed that on 26.06.2008 he was posted at PS Jamia Nagar as ASI. On that day, at about 11.55 pm, duty officer handed over to him DD No. 33A regarding firing at Gali No.11, House No. 138, Zakir Nagar, New Delhi. He along with Ct. Kuldeep reached at house no.138, Gali No.11, Zakir Nagar. There he came to know that injured had been removed to Trauma Centre by the ambulance. Beat constable Ashok also reached at the spot. He left the constable Ashok at the spot for safety. He along with Ct. Kuldeep reached at AIIMS Trauma Centre and collected the MLC of Mohd. Iqbal and his nephew Swalin. Doctor declared injured fit for statement. He recorded the statement (Ex. PW2/A) of Mohd. Iqbal. He prepared rukka and handed it over to Ct. Kuldeep for registration of FIR. He went to PS for registration of FIR. Mohd. Iqbal was discharged from the hospital. He along with Mohd. Iqbal reached at the spot and prepared site plan Ex. PW6/A. He also collected four live cartridges and two empty cartridges from the spot. Accused Mukhtyar met him at the spot and he also produced one licencee State v. Mukhtiyar & Ors. U/s 341/323/427 IPC & 336 IPC FIR No. 147/2008, PS Jamia Nagar & 25/27/59/59 Arms Act 13 rifle on his request. He prepared sketch memo of the rifle Ex. PW6/B. He also prepared the sketch memo of two empty cartridges and four live cartridge which are Ex. PW6/C & Ex. PW6/D respectively. Thereafter, he kept all the case property in a separate white cloth pulanda and sealed it with the seal of BD and the said pulanda was seized vide seizure memo Ex. PW4/A. He also seized licence of the seized gun Ex. PW6/E. He also filled form No. 39 in respect of seizing of Arms. Ct. Kuldeep returned back at the spot and handed over to him copy of FIR and original rukka. Thereafter, he arrested the accused persons Mukhtiyar, Jafar Ali and Shamsher Ali vide arrest memo Ex.PW4/C, Ex. PW4/D and Ex. PW4/E respectively. Personal search memo of the said accused persons were also conducted vide memo Ex. PW4/F, Ex. PW4/G and Ex. PW4/H. He recorded the disclosure statement of the accused Mukhtiyar Ali vide memo Ex. PW6/F. He also took photographs of the damaged vehicles from the spot. Thereafter, he deposited the case property in Malakhana and recorded the statement of witnesses. Later on, case property was sent for FSL test. He also collected FSL result. Thereafter, he prepared the charge-sheet and filed before the court. He identified the case property as well as the accused persons in the court.
18.During cross examination, witness deposed that he had reached at the spot at 12.15 am on 27.06.2008 by his motorcycle. He did not remember the number State v. Mukhtiyar & Ors. U/s 341/323/427 IPC & 336 IPC FIR No. 147/2008, PS Jamia Nagar & 25/27/59/59 Arms Act 14 of the motorcycle. On that day his duty hours were from 8.00 pm to 8.00 am. At the time of receiving of DD number No. 33A he was in police station. He admitted that when he reached at the spot huge crowd had gathered there. He admitted that he had only collected the information of removing of the injured in hospital. He admitted that he did not find any sign of firing at the spot. He admitted that he had not recorded the statement of any person present at the spot when he enquired from the crowd. He did not remember the time when he reached at the hospital. He admitted that he only met with the injured in the hospital and recorded his statement. He did not collect any slip about the admission of the injured persons in the hospital. He admitted that he had not found the person who had admitted the injured in the hospital. He denied the suggestion that he did not record the statement of injured person in the hospital. He denied the suggestion that he had only obtained the signature of the complainant on blank paper and thereafter accused persons had been falsely implicated. He admitted that there was a register of licence of rifle in the PS Jamia Nagar. He admitted that above said rifle and its license has been produced by the father of Mukhtyar to him. He denied the suggestion that he had falsely planted this licensee rifle on the accused Mukhtyar. He examined at the spot for about two and half hours. He denied the suggestion that he had prepared all the documents while sitting in the State v. Mukhtiyar & Ors. U/s 341/323/427 IPC & 336 IPC FIR No. 147/2008, PS Jamia Nagar & 25/27/59/59 Arms Act 15 police station and arrested the accused persons after calling them in the police station. He admitted that he had not made any public witness except complainant in the present case. He admitted that in the house of accused Jafar Ali a factory was running in which many labours were working. He denied the suggestion that this case has been falsely planted upon the accused on the issue of quarreling taken place between labours and complainant.
19.Thereafter, PE was closed. The statement of accused persons were recorded wherein the accused persons pleaded innocence. Accused did not lead DE.
20.I have heard the arguments of Ld. Counsel for accused persons and Ld. APP for State and perused the record carefully.
21.To attract the offence punishable under section 341 IPC, following ingredients are required to be proved by the prosecution:-
1. That the accused voluntarily caused obstruction to the complainant.
2. The obstruction was to prevent that person from proceeding in any direction in which that person has a right to proceed.
22.To attract the offence punishable under section 323 IPC, following ingredients are required to be proved by the prosecution:-
1. That the injured had suffered bodily pain, disease or infirmity
2. Such bodily pain/ disease/ infirmity has been caused by the State v. Mukhtiyar & Ors. U/s 341/323/427 IPC & 336 IPC FIR No. 147/2008, PS Jamia Nagar & 25/27/59/59 Arms Act 16 accused in a voluntarily manner.
23.Section 34 IPC comes into play when a criminal act is done by several persons in furtherance of the common intention of all such persons. This Section impudes liability on every such person for that act in the same manner as if it were done by him alone. In order to bring the accused under Section 34 IPC two facts must be established:-
1. Common Intention
2. Participation of accused in commission of the offence.
24.The offence of mischief is defined under Section 425 IPC. To bring the act of the accused within purview of Section 427 IPC, the prosecution has to prove the following ingredients:-
1. Wrongful loss or damage to the public or any person/ destruction of property / any change in the property so as to destroy of diminish its value or utility.
2. There should be an intention to cause or knowledge that damage would be caused on the part of the accused.
25.In the case at hand, to prove the allegations against the accused persons, the prosecution has relied upon the testimony of the complainant i.e PW-2 and eye witness Mohd. Sualin i.e PW-3. However, PW-3 has turned hostile, completely denying the entire prosecution story. He has categorically denied State v. Mukhtiyar & Ors. U/s 341/323/427 IPC & 336 IPC FIR No. 147/2008, PS Jamia Nagar & 25/27/59/59 Arms Act 17 having seen the incident or the accused persons beating the injured. He has deposed that he had only heard the noises that some quarrel had taken place and when he came out he saw that his uncle i.e PW-2 was injured and blood was oozing out from his face. He deposed that he had not seen the persons who had injured him.
26.Now let us examine the testimony of PW-2. During his examination in chief, the PW-2 had stated that the accused persons had scuffled with him and he sustained injuries due to the scuffle. However, in his cross examination, he has denied the suggestion that accused Shamsher had beaten him with fist and blows. Infact, he has denied that he had made complaint to the police about the workers but since he did not know the name of the labour, the police wrote down the name of accused Zafar and his brothers. He denied the suggestion that the accused Mukhtiyar had fired. He categorically stated that he had not seen Mukhtiyar having rifle in his hands. He also denied the suggestion that the accused persons had thrown stones from their roof. He also failed to identify the rifle by which the firing was done. Also, during cross examination by the Ld. Defence Counsel, this witness had stated that at the time of incident, the accused persons were not present at the spot and that he had made complaint to the police about misbehaviour of the workers and not with respect to the accused persons.
State v. Mukhtiyar & Ors. U/s 341/323/427 IPC & 336 IPC FIR No. 147/2008, PS Jamia Nagar & 25/27/59/59 Arms Act 18
27.Thus, the court is of the view that the testimony of PW-2 is marred with various contradictions. He has admitted having scuffled with accused persons in his examination in chief and later denied it. He has failed to corroborate the prosecution story. Hence, the credibility of this witness has become doubtful. The testimony of this witness cannot be relied upon as there are major contradictions in his testimony.
28.It is one of the cardinal principles of justice system that the guilt of the accused has to be proved beyond reasonable doubts. Even an iota of doubt would entitle the accused to be acquitted.
29.The prosecution has failed to prove the guilt of the accused persons beyond reasonable doubt and thus they are entitled to be acquitted. Accordingly, accused Mukhtiyar, Shamsher Ali and Zafar Ali are acquitted under Section 341/323/427/336/34 IPC & 25/27/54/59 Arms Act.
30.As per section 437-A of the Cr.P.C, as amended vide the Amendment Act, which came into force on 31.12.2009, the accused as well as the surety shall remain bound by the personal and the surety bond respectively for a period of six months from today. File be consigned to Record Room.
Announced in the open court (SAUMYA CHAUHAN)
on 02.12.2013 METROPOLITAN MAGISTRATE
SOUTH EAST/SAKET COURT/NEW DELHI
State v. Mukhtiyar & Ors. U/s 341/323/427 IPC & 336 IPC
FIR No. 147/2008, PS Jamia Nagar & 25/27/59/59 Arms Act