Delhi District Court
State vs Nazar Hussain Ors on 3 June, 2024
IN THE COURT OF METROPOLITAN MAGISTRATE 08,
SOUTH-EAST DISTRICT, SAKET COURTS, NEW DELHI
::: JUDGMENT :::
IN THE MATTER OF:
STATE Vs. NAZAR HUSSAIN ORS FIR NUMBER: 481/2012 UNDER SECTION: 454/455/380/323/324/325/34 IPC POLICE STATION: JAMIA NAGAR A. CNR No. of the Case DLSE020008342014 B. Cr. Case No. 87064/2016 C. Date of Institution 24.11.2014 D. Date of Commission of 14.06.2012 Offence E. Name of the Complainant Abrar Ahmed F. Name of the Accused, his Accused no. 1 Nazar Hussain Parentage & Addresses G. Offence complained of 454/455/380/323/324/325/34 IPC H. Plea of the Accused Pleaded not guilty and claimed trial I. Judgment reserved on 12.03.2024 J. Date of Judgment 03.06.2024 K. Final Order Convicted for the offence u/s 323/34 IPC and acquitted for the offence u/s 454/455/380/324/325/34 of IPC ACCUSED DETAILS:
Sr. No. of 1 2 3 4 the accused Name of the Nazar Mohd. Mohd. Amir accused Hussain Danish Owaish Hussain Date of 14.06.2012 14.09.2014 - - Arrest Date of 23.06.2012 14.09.2014 03.06.2016 - release on Bail Offence 454/455/380/ 454/455/380/ 454/455/380/ 454/455/380/ charged 323/324/325/ 323/324/325/ 323/324/325/ 323/324/325/ with 34 IPC 34 IPC 34 IPC 34 IPC Whether Convicted Convicted Declared PO Convicted Acquitted/ for the for the vod for the convicted offence u/s offence u/s 06.04.2022 offence u/s Digitally signed by ABHITESH FIR No.481/2012 State Vs. Nazar Hussain Page No. 1/48 ABHITESH KUMAR KUMAR Date: 2024.06.03 17:16:41 +0530 323/34 IPC 323/34 IPC 323/34 IPC and acquitted and acquitted and acquitted for the for the for the offence u/s offence u/s offence u/s 454/455/380/ 454/455/380/ 454/455/380/ 324/325/34 324/325/34 324/325/34 of IPC of IPC of IPC Sentence -- Imposed Period of -- detention undergone during trial (for section 428 CrPC) LIST OF PROSECUTION WITNESS: Sr.No. Name of the Witness 1 Abrar Ahmad 2 Gulzar Ahmed 3 Haseena Begum 4 Mohd. Saleem 5 Mohd. Harrish Abbasi 6 Insp. Rishi Sharma 7 Dr. Pinki Singh 8 HC Anish-ur-Rehman 9 Rajender Singh
LIST OF DOCUMENTS (PROVED BY THE PROSECUTION): Sr. No. Description of documents Exh. No. 1 Copy of FIR Ex. A-1 2 Complaint statement Ex. PW1/A 3 Site Plan Ex. PW1/B 4 Handing over memo Ex. PW1/C 5 Rukka Ex. PW6/A 6 Seizure Memo Ex. PW6/B 7 Arrest memo of accused Nazar Hussain Ex. PW6/C 8 Arrest memo of accused Danish Ex. PW6/D 9 MLC Ex. PW7/A 10 Personal Search Memo Ex. PW8/A 11 Original MLC No. 314363 Ex. PW9/A 12 Original MLC No. 314565 Ex. PW9/B 13 Authority Letter Ex. PW9/C DEFENCE WITNESS:
Sr.No. Name of the Witness 1 Sh. Nazar Hussain 2 Ms. Haseen Begum 3 Sh. Danish Digitally FIR No.481/2012 State Vs. Nazar Hussain Page No. 2/48 signed by ABHITESH ABHITESH KUMAR KUMAR Date:
2024.06.03 17:16:47 +0530 LIST OF DOCUMENTS (PROVED BY DEFENCE):
Sr. No. Description of documents Exh. No. 1 Original Rent Agreement dt 16.05.2009 Ex. DW1/A 2 Certified copy of the statement of the counsel of the Ex. DW1/B parties 3 Complaints Ex DW2/A (Colly-15 pages) 4 Photographs Mark DW3/ A (Colly-5 pages) 5 Medical records Ex. DW3/B (Colly) Factual Background:
1. Briefly stated, the case of the prosecution is that on 14.06.2021 at about 10:00AM, complainant Abrar Ahmed resident of O-38/1, Batla House, Jamia Nagar, was informed that Nazar Hussain alongwith his sons have taken over the possession of his house by breaking the wall. On such information, the complainant alongwith his mother Haseen Begum reached at the spot and found that the lock and walls of his house were broken and all their household articles were missing. Complainant also found that Nazar Hussain, his sons Danish and Owaish and his brother Amir Hussain were present there and they have put their own articles. At that time, they all four were standing outside of his house. When the complainant entered into his house alongwith his mother, all above said four persons also entered into his house behind them. Nazar Hussain was with knife in his hand, hammer was in the hands of Owaish, iron rod was in the hands of Amir and shaving razor was in the hands of Danish.
Two more persons have come with iron rod in their hands. Thereafter, they all have started beating complainant, they also pushed his mother down. Nazar Hussain attacked on the complainant from knife and he sustained injury on his back.
Digitally
FIR No.481/2012 State Vs. Nazar Hussain Page No. 3/48 signed by
ABHITESH
ABHITESH KUMAR
KUMAR Date:
2024.06.03
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Complainant ran away outside of the house and called on 100 number. Meanwhile, brother of the complainant Gulzar also came there. They all have started beating Gulzar. Thereafter, Police came and intervened. Police have taken complainant, his brother and his mother to the AIIMS Trauma Centre. On that basis, the present FIR was registered against the accused persons. Upon completion of investigation, charge sheet under section 448/380/323/324/325/34 IPC was filed against Mohd. Danish and Nazar Hussain only. The accused persons were sent for trial.
Court Proceedings:
2. The ld. Predecessor of this court took cognizance of the offence on 24.11.2014 and issued process against the accused Nazar Hussain, Mohd. Danish, Mohd. Owaish and Amir Hussain.
Pursuant to the appearance of all the accused persons, they were supplied with the copy of chargesheet in compliance of Section 207 CrPC.
Charge:
3. Upon hearing the arguments, vide order dated 03.06.2016 charge under section 454/455/380/323/324/325/34 IPC was ordered to be framed against the accused persons. The accused persons pleaded not guilty and the matter was listed for Prosecution Evidence ('PE').
4. During Trail, accused Owaish was declared absconder on 06.04.2022.
Prosecution Evidence:
Digitally signed by FIR No.481/2012 State Vs. Nazar Hussain Page No. 4/48 ABHITESH ABHITESH KUMAR KUMAR Date:
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5. In order to establish its case against the accused persons, prosecution examined 9 witnesses namely Abrar Ahmed ('PW1'), Gulzar Ahmad ('PW2'), Haseena Begum ('PW3') Mohd. Saleem ('PW4'), Mohd Harish Abbasi ('PW5'), Insp.
Rishi Sharma ('PW6'), Dr. Pinki Singh ('PW7'), HC Anish-ur Rehman ('PW8') and Sh. Rajender Singh ('PW9').
5. PW1/ Abrar Ahmed deposed that he is the resident of 438/1 Batla House, Jamia Nagar, New Delhi and running business of Transport from above said house. He deposed that on 14.06.2012, at about 10:00AM, he was informed by his known person that accused Nazar Hussain, Amir Hussain, Danish and Owais has broken wall of his house and taken over the possession of his house. Thereafter, PW1 along with his mother Haseen Begum reached at above said house and found that lock of their house was broken and also found that all the accused persons were present outside his house. When they entered inside their house, they found that all their household articles were removed by the above-mentioned accused persons. Accused Nazar Hussain, Amir Hussain, Danish and Owais also entered into the house and followed PW1/complainant and his mother. Accused Nazar Hussain was armed with knife, Amir Hussain was armed with hammer, Danish armed with razor(ustara) and accused Owais was armed with iron rod. Two more accused persons along with sariya (iron road) came inside and followed the accused persons. He deposed that they pushed his mother down. PW1 picked her up. During that period, accused Nazar Hussain stabbed him on his back. Accused Danish assaulted him on his neck with ustra (shaving razor), he saved himself by running outside the house and called at 100 number. In the Digitally signed by FIR No.481/2012 State Vs. Nazar Hussain Page No. 5/48 ABHITESH ABHITESH KUMAR KUMAR Date:
2024.06.03 17:17:06 +0530 meantime, his elder brother Abdul Gulzar also came there. Accused persons also started beating his brother Abdul Gulzar. Police came at the spot and rescued them. Police took them to AIIMS Trauma Centre where they were medically examined. Police recorded his statement which is Ex. PW 1/A bearing his signature at point. Police prepared the site plan at his instance which is Ex. PW1/B. PW1 also handed over the list of stolen articles which is Ex. PW1/C bearing his signature at point A. Accused Nazar Hussain, Amir Hussain, Danish and Owais were present in the court and correctly identified by the witness. Thereafter IO recorded his statement U/s 161 Cr.PC. At this stage, 6 photographs of the spot were shown to the witness from judicial file. After seeing the same, witness has correctly identified it. Photographs are Ex.P1(Colly). At that stage, 8 photographs of the witness and his brother showing their injuries are shown to the witness from judicial file. After seeing the same, witness has correctly identified it. Photographs are Ex.P2(Colly).
6. During cross examination by Ld. Counsel for the accused, PW1 deposed that he was residing in the subject house since year 2009. He was residing alone in this said house. He denied that he has not taken the said house on rent from Nazar Hussain. He deposed that he had not handed over any ownership document to the police. He was residing in the house as owner. He is a permanent residence of G-69 Muradi Road Batla house. He admitted that he along with his brother was residing in the house of Hasin Banno on rent prior to residing in the aforesaid house.
He admitted that there is a criminal case pending against the son and daughter in-Law of Hasin Banno. He voluntarily deposed that in this case accused Nazar Hussain is an accused. He FIR No.481/2012 State Vs. Nazar Hussain Page No. 6/48 Digitally signed by ABHITESH ABHITESH KUMAR Date:
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admitted that Hasin Banno had filed eviction suit against his brother Syed Gulzar Ahmad. Accused Nazar Husain had filed eviction suit against his mother for getting the subject property. He deposed that he intimated to the police in his complaint who informed him about the incident on 14.06.2012. After going through the complaint, the witness stated that name of the said person has not been disclosed in his complain dt 14.06.12. He denied that he had vacated the subject property few days back without paying the rent of the subject house to Nazar Hussain. He denied that he was threatening to the Nazar Hussain whenever he was demanded arrear of rent. He denied that due to such threatening, accused Nazar Hussain had made a complaint on 13.06.2012 to the local police against him and it is for this reason that he has filed present false case against the accused person. He further denied that because of such complaint, he re- entered into subject property forcefully in the collusion with the police. He denied that since he had vacated the said house, his belongings were not in the said house. He denied that all the articles in the said house were of accused. He admitted that the neighbour was present at the spot and there was a crowed gathering after the incident but he could not recollect the name of those persons. He denied that the accused persons were not present at spot at the time of alleged incident. The police reached at the spot within 10 to 15 minutes after his call. The police have not recorded statement of any neighbour in his presence. The police have not prepared any site plan in his presence at his instance. The police called once after one or two days later for handing over the list of stolen property. He deposed that he was discharged from the hospital on the same day. He had not written Digitally signed by FIR No.481/2012 State Vs. Nazar Hussain Page No. 7/48 ABHITESH ABHITESH KUMAR KUMAR Date:
2024.06.03 17:17:19 +0530 original complaint in his own handwriting. He does not remember who had written the said complaint. The same was read over to him by SI. But he did not read the same himself. There is no identification mark on photographs exhibit P Colly from which he can identify the photographs taken from which place. He admitted that face of the person is visible in photographs exhibit P-2 Colly. He denied that the P-1 Colly and P-2 not pertains to them and the place of incident or incident. He denied that no incident took place as alleged. He further denied that the accused person has not caused any injuries upon him and his brother and mother. He denied that no article was stolen by the accused person by breaking the wall. He denied that he made false complaint against the accused persons just to pressurise them to restrained them for the demand of arrear of rent as well as not ask to vacate to said property.
7. PW2/ Gulzar Ahmad deposed that on 14.06.2012, at about 09:45-10:00AM, when he was present in washroom, some known person told him that in the house of Abrar Ahmad at O Block accused persons namely Nazar Hussain, Amir Hussain, Danish and Owais had broken wall of above said house and had taken illegal possession. Thereafter, his mother namely Haseen Begum and his brother Abrar Ahmad left for the spot. After,10-
15 minutes, he left for the spot and reached there. There he had seen that accused Nazar Hussain was carrying knife in his hand, accused Amir Hussain was carrying hammer in his hand, accused Danish was carrying razor (ustra) and accused Owais was carrying iron rod and two more persons were also present at the spot, who were carrying iron rod in their respective hands. He deposed that his mother was also present there and she was Digitally signed by FIR No.481/2012 State Vs. Nazar Hussain Page No. 8/48 ABHITESH ABHITESH KUMAR KUMAR Date:
2024.06.03 17:17:24 +0530 crying. Upon seeing, accused persons namely Nazar Hussain, Amir Hussain, Danish and Owais started beating him. They hit iron rod five times on his leg. They also hit him with fist and kicks. In the meantime, his brother, after making the call at 100 number to the police came there. He deposed that he clicked photographs of his brother's injuries at that time. At that time, blood was oozing from his back. Simultaneously police officials also came there. Police shifted him, his brother and his mother to AIIMS Trauma Centre for medical examination. He was medically examined in that hospital. Accused Nazar Hussain, Amir Hussain and Danish were present in the court and witness has correctly identified the accused. He deposed that he could also identify accused Owais, if shown to him. Personal appearance of accused Owais has been exempted subject to accused not disputing his identity and him not objecting to examination of PWs conducted in his absence. At this stage, 1 photograph is shown from the judicial file to the witness. After seeing the photographs, witness has correctly identified it as the photograph clicked by him of his brother's injury. The said photograph is part of Ex. P2(Colly) which is Mark X. At this stage, 7 photographs are shown from the judicial file to the witness. After seeing the photographs, witness has correctly identified them as the photograph clicked by him of his brother's injury after medical examination. The said photograph of his injuries. Same are already Ex. P2(Colly), including Mark X.
8. During cross examination by Ld. Counsel for all the accused, PW2 deposed that he had not seen the person who informed him about the incident of breaking the wall. He does not know the said person. He voluntarily deposed that he was FIR No.481/2012 State Vs. Nazar Hussain Page No. 9/48 Digitally signed by ABHITESH ABHITESH KUMAR KUMAR Date:
2024.06.03 17:17:30 +0530 inside the bathroom at that time. He deposed that he had not asked the name of said person. He had not informed the police that some person had informed him about the said incident of house breaking. He deposed that he does not remember whether he had disclosed the names of all the accused persons who had broken the said wall to the police or not. He does not know at what time his brother and his mother had reached at the spot. He reached the spot at about 10:00AM. He did not call the police before reaching the spot. He had also not informed any other relative of him that he was going to the spot. The spot is a distance of less than 1 kms from his house. He denied that he had not gone to the spot at any point of time. He denied that no incident took place and that is why he had not informed to the police or any of his relatives. His brother and police came at the spot within a minute of him reaching there. Police had not recovered any weapon of offence in his presence. He had clicked photographs of his brother's injuries from his own mobile phone. The said mobile phone was not handed over by him to the police. He does not remember the date when the said photographs were given by him to the police. The same were given 3-4 days after the incident. No document was got signed by the police from him at the time of handing over the photographs. He denied that said photographs are not of the injured. He denied that the said photographs do not pertain to the incident in question. Police had not seized any clothing article in his presence. He could not say whether his brother had handed over his clothes to the police. Police had not taken any photographs in his presence, of the spot. He was called by the police twice. He does not remember the exact dates when he was called by the police. The police had not Digitally signed by FIR No.481/2012 State Vs. Nazar Hussain Page No. 10/48 ABHITESH ABHITESH KUMAR KUMAR Date:
2024.06.03 17:17:36 +0530 recorded his written statement. However, they interrogated him orally. He denied that he had not told the police that accused persons were carrying the weapons. At this stage, witness was confronted with his statement u/s 161 Cr.P.C. where it has not been so recorded. The said statement is Mark X-1. He admitted that accused persons had not beaten his mother and his brother in his presence. He denied that accused persons did not beat him. He does not know whether police officials who came at the spot were from PCR or from PS. Concerned doctor had not taken clothes from him or other injured during their medical examination. He does not remember the time when they had reached the hospital. They had left the spot at around 11:00AM and must have reached there within 45 minutes. Public persons had also gathered at the spot. He does not know their names and addresses. Police had not recorded their statements in his presence. He denied that no such incident took place. He denied that accused persons have been falsely implicated in the present case. He further denied that property in question belongs to accused Nazar Hussain. He denied that his mother was a tenant in the said property. He admitted that accused had filed one civil suit for eviction against his mother. He voluntarily deposed that the said suit was dismissed. He denied that he is deposing falsely.
9. PW3/ Haseena Begum deposed that incident in question took place on 14th of June. She does not remember the year. At about 10:00AM, one boy came to her house and told them that accused Nazar Hussain had broken the doors and walls of their house and that he had taken all their articles. Her elder son Gulzar Ahmad was taking a bath at that time. Hence, she and her other son Abrar Ahmad went to their house/ spot and found that Digitally signed by ABHITESH FIR No.481/2012 State Vs. Nazar Hussain Page No. 11/48 ABHITESH KUMAR KUMAR Date:
2024.06.03 17:17:41 +0530 door of their house was lying open. Accused Nazar, Danish, Owais and Amir Hussain were standing at the door. She and her son Abrar went inside their house. All the 4 accused persons also entered the house. Accused Nazar slapped her very hard on her ear due to which she lost hearing in the said ear. She fell down. Accused Nazar was carrying one knife, Amir was carrying one hammer, Danish was carrying ustra and accused Owais was carrying one iron rod. Two more persons came there carrying iron rods. Thereafter, accused Nazar assaulted her son Abrar on his back with the knife. Thereafter, her other son Gulzar came there. Accused Amir beaten Gulzar. She was feeling disoriented. She deposed that she does not know anything else about the said incident. She asked her sons to call the police. Thereafter, police came at the spot and took her, her sons and the accused persons to a hospital near Safdurjung Hospital. Thereafter, she came back to her house. Accused Nazar Hussain, Amir Hussain and Danish were present in the court and witness has correctly identified the accused. She deposed that she could also identify accused Owais, if shown to her. Personal appearance of accused Owais has been exempted subject to accused not disputing his identity and not objecting to examination of PWs conducted in his absence.
10. During cross examination by ld. Counsel for all the accused, PW3 deposed that she does not know the address of the boy who had informed them about breaking of doors and walls of their house. They had not informed the police or the relative or any neighbour before reaching the spot. In her house besides herself, Gulzar, Abrar, her husband and her daughter were also present at that time. Her husband had not gone to the spot with her and Abrar. She does not know whether he had come to the Digitally FIR No.481/2012 State Vs. Nazar Hussain Page No. 12/48 signed by ABHITESH ABHITESH KUMAR KUMAR Date:
2024.06.03 17:17:47 +0530 spot after some time. Her daughter had not gone to the spot. Police had taken photographs of the spot in her presence. Public persons had also gathered at the spot. She does not know their names and addresses. Police had not recorded their statements in her presence. Police had come to the spot sometime after they had reached there. She could not say after how much time police came there. She denied that she does not know about the incident as she was feeling dizzy and disoriented. She does not know whether police had recovered or seized the weapons from the accused. She had told the police that accused persons were carrying the said weapon. At that stage, witness is confronted with her statement u/s 161 Cr.P.C. where it has not been so recorded. The said statement is Mark X-2. She deposed that she had also told the police that accused persons had taken away all their house hold articles. At that stage, witness is confronted with her statement u/s 161 Cr.P.C. where it has not been so recorded. The said statement is Mark X-2. She denied that no such incident took place. She denied that accused persons have been falsely implicated in the present case. She denied that property in question belongs to accused Nazar Hussain. She further denied that she was a tenant in the said property. She admitted that accused had filed one civil suit for eviction against her. She voluntarily deposed that the said suit was dismissed. She denied that she never went to the spot. She further denied that no boy had informed him about the incident of house breaking. She denied that she and her sons were not beaten by the accused persons as alleged by her. She denied that she is deposing falsely.
11. PW4/ Mohd. Saleem deposed that he has been residing at House no. O-52/1, Batla House, Jamia Nagar, New Delhi for last Digitally signed by FIR No.481/2012 State Vs. Nazar Hussain Page No. 13/48 ABHITESH ABHITESH KUMAR KUMAR Date:
2024.06.03 17:17:51 +0530 20-22 years. On the date of incident, he was not present at the spot. He came to know about the incident when he returned back to his house. Police inquired from him about the incident. He does not know as to why the quarrel took place. He deposed that he could identify all 4 accused persons. Accused persons were present in the court and witness has correctly identified all the 4 accused.
12 At this stage, Ld. APP for the State sought permission to cross examine witness as he was resiling from his earlier statement given to police. Same was allowed.
13. During cross examination by Ld. APP, PW4 deposed that he is an illiterate person. He admitted that incident in question took place on 14.06.2012 near house no. 438/1, Batla House, Jamia Nagar, New Delhi. He voluntarily deposed that all the parties reside near the said area and incident must have occurred there only. He denied that all the 4 accused persons had trespassed into the house of the complainant on that day. He denied that on the day of the incident, he was present at the spot.
Confronted with statement given to the police which is Mark A, where it is so recorded. He does not know whether police had come to the spot and taken injured to hospital. Witness was confronted with statement given to the police which is Mark A, where it is so recorded. He admitted that incident took with regard to property dispute. He does not know whether there were earlier disputes between complainant and accused as well. Witness was confronted with statement given to the police which is Mark A, where it is so recorded. He denied that he is deposing falsely in order to save the accused.
Digitally
signed by
FIR No.481/2012 State Vs. Nazar Hussain Page No. 14/48 ABHITESH
ABHITESH KUMAR
KUMAR Date:
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14. During cross examination by Ld Counsel for all the accused, witness admitted that he does not have any personal knowledge about the property dispute between the parties.
15. PW5/ Mohd. Harish Abbasi deposed that he came to know about the dispute in the present case after he made inquiry on receiving summons in the present case. He deposed that he was not present at the spot at the time of incident. Incident in question did not take place in his presence. He has no knowledge in this regard.
16. At this stage, Ld. APP for the State sought permission to cross examine witness as he was resiling from his earlier statement given to police. Same was allowed.
17. During cross examination by Ld. APP for the State, witness deposed that he is 10th class pass out and working as Supervisor at Primas Hospital in Chankyapuri. He has been staying at the abovementioned address for last 8-10 years. He deposed that he was present at the said Primas Hospital on 14.06.2012. He denied that incident in question took place on 14.06.2012 near house no. 438/1, Batla House, Jamia Nagar, New Delhi. He denied that all the 4 accused persons had trespassed into the house of the complainant on that day. He further denied that on the day of the incident he was present at the spot. Witness was confronted with statement given to the police which is Mark B, where it is so recorded. He deposed that he does not know whether police had come to the spot and taken injured to hospital. Witness was again confronted with statement given to the police which is Mark B, where it is so recorded. He denied that he is deposing falsely in order to save the accused. He Digitally signed by ABHITESH FIR No.481/2012 State Vs. Nazar Hussain Page No. 15/48 ABHITESH KUMAR KUMAR Date:
2024.06.03 17:18:01 +0530 does not know whether incident in question took place over a property dispute. Confronted with statement given to the police which is Mark B, where it is so recorded. Witness was not cross examined by Ld. Counsel for the accused persons despite opportunity given.
18. PW6/ Insp. Rishi Sharma deposed that on 14.06.2012, he was posted as SI in PS Jamia Nagar. On that day, he received a PCR call vide DD No. 20A regarding quarrel at Batla House. He deposed that he alongwith Ct. Anish reached at the spot. He came to know that the injured had already been shifted to hospital. On which, he left Ct. Anish at the spot and he went to AIIMS trauma Centre. He deposed that he obtained the MLC of injured and he recorded statement of Abrar. Thereafter, he returned to the spot.
Then he prepared Tehrir/Rukka Ex. PW6/A, bearing his signature at point A and handed over the same to Ct. Anish and sent him to PS for registration of FIR. After registration of FIR Ct. Anish returned to the spot and handed over the copy of FIR and original Rukka to him. Thereafter, he seized the articles from the house vide memo Ex. PW6/B, bearing his signature at point A. Meanwhile, the complainant and injured also reached at the spot. He deposed that he prepared the site plan already Ex. PW1/ B, bearing his signature at point A at the instance of complainant. He recorded statement of witnesses. He arrested accused Nazar Hussain vide memo Ex.PW6/C, bearing his signature at point A. He searched for other accused persons. On the next day, accused Nazar Hussain sent to JC. In the meantime, the accused Danish was granted anticipatory bail from the concerned court. He deposed that he arrested accused Danish vide memo Ex.PW6/D, bearing his signature at point A. Thereafter, he released accused Digitally signed by ABHITESH FIR No.481/2012 State Vs. Nazar Hussain Page No. 16/48 ABHITESH KUMAR KUMAR Date:
2024.06.03 17:18:07 +0530 Danish on bail as per direction of anticipatory bail order of the Court. He recorded statement of public witnesses. He also searched various places to recover the stolen property, however, could not find them. He deposed that he interrogated the alleged persons and kept them in column no. 12 of the challan. He prepared the Challan and submitted before the concerned Court. Accused Nazar Hussain and Danish were present in the Court and witness has correctly identified the accused persons.
19. During cross examination by Ld. Counsel for all the accused, he deposed that he reached at the spot at around 12:45PM. Again said, at around 01:00PM. When he reached at the spot no one met with him. However, some public persons were present over there but he does not remember the name and address of those persons. He admitted that when he reached at the spot, he has not found the mother of the complainant and his brother quarrelling with the accused. He was remained at the spot for around 15-20 minutes then he left for the hospital and he came back at the spot at around 06:45PM and the complainant also came at the spot around 07:30 to 08:00PM. He does not remember the date when he recorded the statement of other public witnesses. He admitted that site plan does not bear the preparation date. He admitted that he has not taken the signature of the complainant on the site plan. He could not say as to who were the actual owner of the belonging recovered from the house as mentioned in Ex. PW 6 /B. He could not say, whether the seized articles were released to the accused Nazar Hussain on superdari. He could not say, whether the seized articles were belonging to accused Nazar Hussain. He is not aware whether the wife of the accused Nazar Hussain made a complaint to the SHO Digitally signed by ABHITESH FIR No.481/2012 State Vs. Nazar Hussain Page No. 17/48 ABHITESH KUMAR KUMAR Date:
2024.06.03 17:18:13 +0530 Jamina Nagar vide diary no. 73B dated 13.06.2012 regarding threatening by the complainant to the accused family. He denied that accused Nazar Hussain has brought this information to his knowledge. He does not remember the name of the public persons who were present over there to whom he has cited as witness. He does not remember, who were the residents of the immediate neighbour of the building where incident took place. It was single storey house along with one small room on roof of the house. He denied that he has not recorded the statement of the immediate neighbour of the accused because no such incident took place and there is no eye witness. He denied that all the investigation has been carried out while sitting in police station at the instance of the complainant. He is not aware, whether any civil suit for eviction was pending against the complainant filed by the wife of the accused Nazar Hussain. He denied that no fair investigation was carried out. He denied that accused persons have been falsely implicated in the present case. He denied that he is deposing falsely being IO of the case.
20. PW7/Dr. Pinki Singh deposed that on 14.06.2012, he was posted at JR at Jai Prakash Narain Apex Trauma Centre, New Delhi. On that day, he was on emergency surgery duty. A patient namely Abrar Ahmad was brought to the hospital by Ct. Jagdish with alleged history of physical assault. Patient was suffering from incised wound (Over back 15x1x1cm). Thereafter, he was given further medical treatment (antibiotic and stiches) and thereafter he prepared MLC bearing no. 314364/2012 dated 14.06.2012. The MLC is Ex. PW-7/A bearing his signature at point A. After given primary treatment, patient was discharged from their side with advice to follow up in OPD surgery dept.
Digitally signed by FIR No.481/2012 State Vs. Nazar Hussain Page No. 18/48 ABHITESH ABHITESH KUMAR KUMAR Date:
2024.06.03 17:18:17 +0530
21. During cross examination by Ld. Counsel for all the accused persons except accused Owaish, PW6 admitted that he has asked about the assault, however the patient did not disclose any name who has given such assault upon him. He does not remember whether the patient talked about the manner that how has he sustained such injury. He denied that such injury is self-
inflicted or caused intentionally. He denied that neither he has personally examined the patient nor he has prepared the MLC. He admitted that the wound was caused by a sharp object.
22. PW8/ HC Anish-ur-Rehman deposed that on 14.06.12, he was posted as constable at PS Jamia Nagar. On that day, he alongwith SI Rishi Sharma reached at O-38/1, Batla House, Jamia Nagar, i.e. spot of the incidence on PCR call received by him. Thereafter, IO Rishi Sharma left him at the spot and went to AIIMS Trauma Centre. After about 2 hours, IO SI Rishi Sharma came at the spot, on the basis of the complaint, he prepared Tehrir and same was handed over to him. IO SI Rishi Sharma sent him to the Jamia Nagar for registration of FIR alongwith original Rukka and then he went to PS and the present FIR was registered. After registration of FIR, he came back at the spot alongwith copy of FIR and original Rukka and same was handed over to the IO. During investigation at the spot, IO prepared sizure memo which is already Ex. PW-6/B bearing his signature at point B. Accused Nazar Hussain was present at the spot and he was arrested by the IO, arrest memo which is already exhibited as Ex. PW6/C bearing his signature at point B. Accused Nazar Hussin was present in court today and correctly identified by the witness. After arrest of the accused, personal search was conducted by the IO vide personal search memo Digitally signed by ABHITESH FIR No.481/2012 State Vs. Nazar Hussain Page No. 19/48 ABHITESH KUMAR KUMAR Date:
2024.06.03 17:18:23 +0530 which is exhibited as Ex. PW8/A, bearing his signature at point A. Thereafter, victim was sent to Hospital for medical treatment and they came back at PS where IO recorded his statement.
23. During cross examination by Ld. Counsel for all the accused except accused Owaish, PW8 deposed that he does not remember when call regarding quarrel received in the police station. He does not remember the exact time, when they left the PS and reached at the spot. He does not remember when IO left the spot first time for the hospital. When they reached at the spot, no family member of the complainant found present at the spot. He voluntarily deposed that they all were left for the hospital. He deposed that except him and IO, no other police person was present at the spot when they reached there. IO did not record any statement of neighbour in front of him after registration of FIR. When they reached at the spot, IO inquired about the incident from the public person, who were present at that time, however, IO did not record statement of those persons at that time. He denied that he did not visit the place of incident alongwith the IO. He further denied that IO did not recover anything from the spot in his presence. He denied that Ex. PW6/ B as well as Ex. PW6/C were prepared in the police station where he has put his signature at the instance of the investigating officer. He denied that no personal search was conducted in his presence. He denied that he is deposing false at the instance of the IO.
24. PW9/Rajender Singh deposed that he has brought the summoned record i.e. Copy of MLC no. 314363 and 314565. The original MLC is already on record (compared with record brought). Same is Ex. PW9/A and Ex. PW9/B respectively. He Digitally signed by FIR No.481/2012 State Vs. Nazar Hussain Page No. 20/48 ABHITESH ABHITESH KUMAR KUMAR Date:
2024.06.03 17:18:28 +0530 deposed that he could also identify the signatures of Dr. BB Gopi Chand and Dr. Shagufta Khatoon, their signatures are at point A at both the places. His authority letter is Ex. PW9/C.
25. During cross examination by Ld. Counsel for all the accused, PW9 admitted that summon was not issued to him or his department. Department has not made any effort to convey the doctors about the summons received from this court to depose in this matter. He does not remember who were accompanying the doctors due to lapse of time. Above said doctors had remained in department from 09.04.2012 to 26.06.2012. He voluntarily deposed that doctors are on duty on rotation basis. He has brought the document showing appointments of doctors for aforementioned period. He denied that he could not identify the signatures of the abovementioned doctor and he has deposed about the identification of the signatures only on the basis of records in respect of appointment. He voluntarily deposed that they collect the record only after obtaining the signature of the doctor and he has seen them sign. He admitted that he has no personal knowledge about the present case. He further admitted that neither any examination of the injured was conducted in his presence nor any MLC was prepared in his presence. He voluntarily deposed that the same was signed in front of him. He denied that he is deposing falsely.
26. Vide order dated 27.06.2023, PE was closed.
Admission u/s 294 CrPC
27. In terms of section 294 CrPC, accused has admitted copy of FIR as Ex. A-1.
Statement of the Accused: Digitally
signed by
ABHITESH
FIR No.481/2012 State Vs. Nazar Hussain Page No. 21/48 ABHITESH KUMAR
KUMAR Date:
2024.06.03
17:18:33
+0530
28. On 27.07.2024, statement of accused under Section 313 Cr.P.C. read with Section 281 Cr.P.C. was recorded in which all incriminating materials were put to them, to which they pleaded innocence and claimed to have been falsely implicated. Accused Nazar Hussain stated that the property in dispute was given on rent by his wife to the complainant Abrar and complainant is in habit of implicating himself in another case. Accused Amir Hussain has taken plea of Alibi and stated that he was in Muradabad, UP at the time of the incident. Accused persons opted to lead defence evidence.
Defence Evidence:
29. In DE, accused has examined three witnesses namely Sh. Nazar Hussain, ('DW1') Ms. Haseen Begum, ('DW2') and Danish ('DW3').
30. DW1/ Nazar Hussain deposed that they have a house in the name of his wife Haseen Jahan @ Hasun Jahan i.e. Property bearing no. O-38/1 situated at Batla House. He has let out the said house to the mother of complainant namely Haseen Begum on the request of Abrar and rent deed was executed on 16.05.2009. Copy of the said rent deed is marked as Mark D-1. (objection- photocopy is without foundational evidence). DW1 deposed that he has brought original rent agreement dated 16.05.2009 which is Ex. DW1/A. It bears his signature as a witness at Point X. On expiry of the rent agreement i.e. 15.04.2010 after 5-6 days his wife and his son Mohd. Danish visited the rented accommodation and requested to vacate the said premises and also requested to pay the balance rent to them. On that day, nothing was happened and he requested 10 days ABHITESH KUMAR FIR No.481/2012 State Vs. Nazar Hussain Page No. 22/48 Digitally signed by ABHITESH KUMAR Date: 2024.06.03 17:18:38 +0530 time to vacate the said premises. Thereafter, after 10 days his wife and his son visited the house and again requested to vacate the said house. On that day, Abrar and Gulzar beaten his son Danish with iron rod and he sustained injuries and thereafter his son has been admitted in Holy Family Hospital for treatment. The discharge summary along with medico legal case papers and other documents is Mark D-2. Thereafter, he has made a complaint to the SHO, Jamia Nagar in respect of the incident i.e. Abrar and Gulzar beaten his son is Mark D-3. He deposed that he can identify his handwriting. (objection by Ld. APP: that document is incomplete and does not bear the signature of the witness and it is a photocopy without foundational evidence with regard to comparison with the primary document). Thereafter, they have lost interest and never visited to see the status of the plot because his wife is not well. No steps were taken by the police officials. Thereafter, his son has given complaint to DCP and Commissioner of Police by courier. The said complaint is Mark D-4 and the courier receipts are Mark D-5, Mark D-6 and Mark D-7. Complainant has filed two criminal cases against him including this case. In FIR No. 284/2010, he was acquitted by the court concerned. He does not have the copy of judgment today. Property no. O-38/1 which was the subject matter of tenancy was vacated by the complainant's mother only on 15.12.2017 by giving voluntarily statement of her counsel which was recorded on 15.12.2017. Certified copy of the statement of the counsel of the parties is Ex. DW1/B.
31. During cross examination by Ld APP, DW1 deposed that he has a hardware shop located at H-77/17, Batla House. Usually, his wife was the one who collected rent from Abrar Ahmed and Digitally signed by ABHITESH FIR No.481/2012 State Vs. Nazar Hussain Page No. 23/48 ABHITESH KUMAR KUMAR Date:
2024.06.03 17:18:43 +0530 his mother, at his instance. Most of the time, his wife and son went to collect the rent. During the existence of rent agreement, there was no altercation between them and Abrar Ahmed but it started when rent agreement expired. He deposed that he was not the eye witness of incident when his son was beaten by the complainant Abrar and Gulzar. He deposed that he was there when his son Danish was treated in Holy Family Hospital. He arrived at the Hospital on 29.04.2010 and his son was treated on the same day and discharged on 03.05.2010. He was near Gulmohar Park, Panchsheel Enclave, New Delhi. He deposed that he was working as a carpenter there. He was not outside Delhi at that time. He does not remember who informed him regarding the incident that occurred on 29.04.2010. His wife was the one who filed the eviction suit against Abrar Ahmed and Haseen Begum. He deposed that he never tried to collect rent and have it deposited in the court through Rent Controller. He used to put pressure on Abrar Ahmed and Haseen Begum so that they can vacate the house. Witness refers to Ex. DW1/B and says that the eviction suit was filed in the year 2017. Sometimes about one to two times, he also goes to collect rent from Abrar and his mother. Initially he never lodged an eviction suit because of the pendency of the police case and Abrar used to say that he would vacate it. After writing to DCP, his 50 sq yards property which was locked by Abrar was returned to him by unlocking the same and Abrar told him that he will not vacate the property measuring 25 Sq. Yards and he shall vacate the same only after the court order. He admitted that police have not taken any action on his complaint filed for the property measuring 25 Sq. Yard by stating that it is a civil case. He was regularly visiting on property Digitally FIR No.481/2012 State Vs. Nazar Hussain Page No. 24/48 signed by ABHITESH ABHITESH KUMAR KUMAR Date:
2024.06.03 17:18:49 +0530 measuring 25 Sq. yards after the date of the incident. He denied that he put pressure on the Abrar Ahmed and Haseen Begum by using violence against them. He further denied that he did not file a civil suit immediately after the dispute arose between him and Abrar Ahmed because he was trying to settle the case with Abrar Ahmed. He denied that police did not take any action in the case because he has been implicated in the FIR 481/2012 which is a subject matter of this case. He denied that he is deposing falsely.
33. At this stage, Ld. Counsel for the accused has sought permission to re-examine DW1 by introducing a document which was given by the witness to SHO, Jamia Nagar. Permission was granted. DW1 deposed that on 13.03.2012, he has written a settlement letter by addressing SHO, Jamia Nagar. It bears his signature at Point A. He has brought the copy of the said letter.
Copy is identified as Mark D-8. The settlement was arrived on intervention of the police. Besides him, Abrar, his wife and Fakru had addressed a letter to SHO. The letter signed by his wife was written by him and it bears signature of his wife at Point A, his signature at Point B, signature of Fakhre Alam at Point C and there is another signature which he could not identify today. Copy of the said letter dt 13.03.2012 brought by him today. Same is identified as Mark D-9. A separate letter was also written by Abrar addressing SHO dated 13.03.2012. The said letter was signed by Abrar. Abrar has signed in his presence. He has brought the copy of the said letter today. The said letter bears signature of Abrar at Point A, Fakre Alam at Point B, father of Fakhre at Point C and there are two other signatures on the said letter which he could not identify today. Same is identified as Mark D-10.
Digitally
FIR No.481/2012 State Vs. Nazar Hussain Page No. 25/48 signed by
ABHITESH
ABHITESH KUMAR
KUMAR Date:
2024.06.03
17:18:54
+0530
34. During cross examination by Ld. APP, DW1 admitted that Mark D-8, Mark D-9 and Mark D-10 does not bears seal of police station. Today he does not remember the name of the police official to whom these documents were handed over. Sharif Alam is the father of Abrar and Fakre Alam is a local resident and acquaintance of Abrar. He does not know the educational background of Abrar. Attention of the witness is Mark D-10. It bears handwriting of Abrar. He denied that these papers were made at home and never dispatched to the police officials. He denied that these documents were not written in the presence of the police officials. He further denied that these documents do not bears seal of the police station because they were not sent or submitted at Police Station. He denied that Abrar Ahmed is not educated and could not write. He denied that he is deposing falsely.
35. DW2/Haseen Jahan deposed that on 15.04.2010, the tenancy of the property bearing no. O-38/1, Batla House, Jamia Nagar, was completed. The said property was lent out to Ms. Haseen Begum on the instruction of her sons Abrar Ahmad and Gulzar Ahmad. Rent agreement was executed which is already Ex. DW1/A, which bears her signature at point A. She deposed that she met with Haseen Begum before the execution of the rent agreement. She could not identify her handwriting and signatures. She deposed that on 15.04.2010, when she alongwith Mohd. Danish went to collect rent, Abrar Ahmad and Gulzar Ahmad beaten her son Danish and also threaten. After that, she called at 100 number, but no action was taken. Due to injury, Mohd. Danish was admitted in hospital for three days. The said flat was vacated by Haseen Begum in the year 2017 in Digitally signed by FIR No.481/2012 State Vs. Nazar Hussain Page No. 26/48 ABHITESH ABHITESH KUMAR KUMAR Date:
2024.06.03 17:18:59 +0530 compliance of the order of the Hon'ble Court of ARC. The statement of the Counsel for the Haseen Begum is on record which is a part of Ex. DW1/B. She deposed that she has given many complaints against Haseen Begum before different police authorities, but no action was taken. Five complaints are Ex. DW2/A (Colly-15 pages), bearing her signature at point A. Haseen Begum and Abrar ahmad had filed this false complaint.
36. During cross examination by Ld APP, DW2 deposed that she does not know English or Hindi nor can she write in the same language. She knows Urdu but she could not write the same. The rent agreement was executed on 15.04.2010. She deposed that she knows Haseen Begum because she often crosses paths with her. Haseen Begum never came in her house. She deposed that she only signs in Urdu. She could not read the entirety of the Rent Agreement Ex. DW1/A. DW2 stated that she would not sign any document without knowing contents of the same and voluntarily stated that she has narrated the complaint and she does not know who was typing the same. She deposed that she does not have a smartphone. She does not have any phone. She went to collect rent on 15.04.2010. Abrar Ahmad and Gulzar Ahmad had attacked her son Danish with the rod. She does not know who took her son Mohd Danish to the hospital. She was on the spot. She admitted that since she could not read or write in English or Hindi then her signature on any such document written on the abovementioned languages would be without her understanding the contents of the documents. She had filed the written complaint which is marked as Mark DW1/3. There is her signature on Mark DW1/3. Attention of the witness was drawn at Mark DW1/3. It does not bear her signature. Mark DW1/3 is read Digitally signed by ABHITESH FIR No.481/2012 State Vs. Nazar Hussain Page No. 27/48 ABHITESH KUMAR KUMAR Date:
2024.06.03 17:19:04 +0530 over to the witness in vernacular. It is her complaint. Again said, she did not have any consciousness at the time of filing complaint Mark DW1/3. Only the residential neighbour or may be some wayfarers were present at the spot where the attack happened on her son. Apart from that, she does not know who they were. Attention of the witness was drawn at complaints Ex. DW2/A (Colly-15 pages). She could not read or understand what is written. Till the time Haseen Begum was giving rent, their relation was cordial but it deteriorated after she stopped giving the rent. DW2 live with her son Danish. She deposed that she could not recall if her son told her what to say and depose before court. She denied that no such incident ever took place. She denied that she could not call the police because she does not know how to use phone. She denied that she never filed a complaint. She further denied that she has been tutored by her son, who is an accused in this case to depose falsely before this Hon'ble court. She denied that she knows nothing about the incident and her knowledge about the incident is just hearsay.
37. Upon being questioned by the court DW2 answered that she has knowledge of the fact that police authority has not taken any steps on her complaints Ex. DW2/A (Colly-15 pages). Again, court question whether she has filed any court complaint on the issues referred in her complaint Ex. DW2/A (Colly), when police authorities has not taken any step, DW2 answered in negative and voluntarily deposed that she had filed a civil eviction petition before court concerned in the year 2014 which was withdrawn due to subject matter jurisdiction. Later, she has again filed an Eviction Petition in the year 2017. Upon being Digitally signed by ABHITESH FIR No.481/2012 State Vs. Nazar Hussain Page No. 28/48 ABHITESH KUMAR KUMAR Date:
2024.06.03 17:19:09 +0530 specific query regarding the no. of months for which rent was due, witness replied 4 months.
37. DW3/Danish deposed that on 29.04.2010, he alongwith his mother went to collect rent from Haseen Begum and requested her to vacate the tenanted premises. At that time, Abrar Ahmad and Gulzar Ahmad were present there and both had beaten him. He deposed that he sustained head injuries. He does not remember who had taken his photographs, but the same were taken in the hospital. Today, he has brought 5 photographs, which are visible with head injury. The photographs are Mark DW3/A (Colly-5 pages.) (objected by Ld. APP regarding admissibility of these photographs). After the injury, he was admitted in Holy Family Hospital. The medical records, which are already marked DW1/2 is Exhibited as Ex. DW3/B (Colly-4 pages). He deposed that he has made police complaints qua this incident which is already marked DW1/3. They have been implicated falsely in the present case as no such incident took place as alleged by the complainant. Actually, the complainant wants to grab his property which was given on rent to his mother that is why the present case has been falsely setup by the complainant.
38. During cross examination by Ld. APP, DW3 deposed that he could not tell exactly what was the blunt object that was used to attack him but it might be something heavy like an iron rod.
He was not there when the rent agreement was prepared for the concerned property. There is no certificate of section 65B Indian Evidence Act. Neither it is known who took the photographs. He deposed that he does not know the name of the person who handed him the photographs but he could identify him with his Digitally signed by ABHITESH FIR No.481/2012 State Vs. Nazar Hussain Page No. 29/48 ABHITESH KUMAR KUMAR Date:
2024.06.03 17:19:14 +0530 facial features, if he produced before him. He deposed that he was present when police complaint was being given to SHO PS Jamia Nagar. The complaint is not in his writing. At this stage, attention of the witness was drawn at Mark DW1/3. He admitted that it does not bears seal of the PS. An altercation took place between him, Haseen Jahan and Abrar Ahmad and Gulzar Ahmad. He was not aggressive when he demanded the rent. Abrar Ahmad and Gulzar Ahmad usually gave rent on time. Abrar Ahmad and Gulzar Ahmad had refused to vacate the tenanted premises as their period of stay had expired and no talks of renewal was there. He deposed that he could not say why police official did not register their complaint. There is his signature on Mark DW1/3. Witness is shown Mark DW1/3. His signatures are not present on Mark DW1/3. Half of his complaint is missing. His mother is incapable of writing the complaint. His mother is illiterate and cannot read or write. The Abrar Ahmad and Gulzar Ahmad had not said that they will grab his property which was given to them on rent. He presumed that since they were not vacating the property, they are attempting to grab the property. He denied that he could not tell what object was used to hit him because there was no such object. He further denied that he does not know the name of the person or the identity who handed him the photographs because no such person ever existed. He denied that photographs are manufactured and in reality, injuries supposed to be shown do not exist. At this stage, witness voluntarily deposed that he recalls the name of the person who gave him the photographs. His name was Mohd Aadil and he is his friend. He denied that he was not present at PS when the complaint was given. He further denied that half of Digitally signed by FIR No.481/2012 State Vs. Nazar Hussain Page No. 30/48 ABHITESH ABHITESH KUMAR KUMAR Date:
2024.06.03 17:19:19 +0530 complaint is not brought because had it been shown it would prove his culpability. He further denied that he was aggressive when he demanded the rent and he attacked Abrar Ahmad and Gulzar Ahmad. He denied that he is deposing falsely.
39. Accordingly, vide order dated 22.02.2024 DE was closed.
Final Arguments:
40. Ld. APP has submitted that the case is proved beyond reasonable doubt as the witnesses have identified accused during their deposition and no discrepancy has emerged in their evidence. It is also submitted that such offences are grave offences and the accused be convicted of the offence charged.
41. Per contra, Ld. Counsel for the accused has raised following arguments to suggest that case has not been proven beyond reasonable doubt, they are the following:
a) PW-1 Abrar Ahmed, PW-2 Gulzar Ahmed is brother of complainant and PW-3 Haseen Begun is mother of the complainant and thus they are all interested witnesses.
b) PW-1 and PW-2 have drastically improved their deposition in order to support the complainant deposition.
c) PW-4 Mohd. Saleem and PW-5 Harish Abbasi are an eye witness of the incident and have not supported the case of the prosecution.
d) PW- 6 Inspector Rishi Sharma is the IO of the case, PW-7 Dr Pinki Singh prepared the MLC, PW-8 HC Anish-ur-
Rehman accompanied the IO and PW-9 Rajender Singh who is a record clerk of AIIMS are all official witnesses proving the official proceedings.
e) Accused no.1 Nazar Hussain appeared as DW-1, in essence his deposition was that a false complaint has been Digitally signed by FIR No.481/2012 State Vs. Nazar Hussain Page No. 31/48 ABHITESH ABHITESH KUMAR KUMAR Date:
2024.06.03 17:19:27 +0530 lodged by complainant so that he did not have to vacate the property and that the complainant intends to grab such property.
f) DW-2 was examined to prove that mother of complainant was the tenant of the property which is subject matter of this case, and that she vacated the property only pursuant to filing of the case before the Ld. Court concerned.
g) Accused no.2 Mohd. Danish was examined as DW-3 wherein he deposed that he was attacked by complainant and his mother.
h) Informer/eye witness has not been cited or investigated by the investigating officer and in actuality there was no eye witness who saw the incident.
i) Complaint in present case is a counter blast of police complaint made by wife of accused no.1 vide DD no.73B dated 13.06.2012 which is part of DW2/A (colly).
j) PW-1/complaint statement, and deposition before Hon'ble Court suffers from contradiction on point of his address.
k) In DD no. 20A PW-1 informed the place of quarrel at O-
38/1 whereas in Court place of incident was shown as 438/1.
l) DD no. 20A incident was reported at about 12:40PM and injured reached AIIMS, Trauma Centre at 01:00PM, hence there is an unexplained delay in reporting the incident.
m) PW-1/complaint statement mentions that accused persons had taken over the possession by breaking a wall but in his deposition before the Court he found that lock of his house was broken and door was lying open. PW-1 stated in his cross examination that site plan was not made in his Digitally signed by ABHITESH FIR No.481/2012 State Vs. Nazar Hussain Page No. 32/48 ABHITESH KUMAR KUMAR Date:
2024.06.03 17:19:33 +0530 presence. Discrepancy in time within which injured reached hospital per statement of PW-2 and PW-3 and in MLC.
n) Articles seized belongs to accused no.1, weapon of offence was not recovered, injured did not disclose the name of assaulter to the doctor and discrepancy between nature of injuries deposed in Court and as opined in MLC. None of the articles were recovered from possession of accused person. No specific allegations against the accused persons qua their role and no investigation conducted with regard to other two persons with iron rods.
o) Improvements in testimony, lack of fair investigation, delayed registration of FIR, non-seizure of clothes of complainant and non-seizure of mobile phone by which Ex. P-2 (colly) was introduced. False implication in FIR no.284/2010 and acquittal in the case, coupled with a conclusion that complainants are in a habit of making false allegations against the accused persons.
At the end, he has submitted that the prosecution has completely failed to prove its case beyond reasonable doubt and therefore, the accused persons are entitled to be acquitted of the alleged offence.
42. This court has heard the submissions of Ld. APP for State and the Ld. Counsel for accused and carefully perused the judicial record.
Discussion and Analysis:
43. 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 Digitally FIR No.481/2012 State Vs. Nazar Hussain Page No. 33/48 signed by ABHITESH ABHITESH KUMAR KUMAR Date:
2024.06.03 17:19:38 +0530 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 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.
44. At the outset, the allegation in complaint and it has also come in the deposition of PW1, PW2 and PW3 that somebody has informed them that accused persons have broken the wall of their property. That person not called as witness by the prosecution neither the name of that person was disclosed by PW1, PW2 and PW3. There is no evidence on record which substantiate the allegation that accused persons have broken the wall of the property of the complainant and taken away his property. It is settled position that prosecution has to prove its ABHITESH FIR No.481/2012 State Vs. Nazar Hussain Page No. 34/48 KUMAR Digitally signed by ABHITESH KUMAR Date: 2024.06.03 17:19:43 +0530 case on it's own leg. Therefore, there is no material on record to connect the accused persons with the offence under section 454/455/380/34 of the IPC.
44. Now, rest of the allegation are 323/324/325/34 of the IPC against all the accused persons.
44. PW-1 and PW-3 have both categorically stated that on 14.06.2012, at about 10:00AM, they were informed by one known person that accused Nazar Hussain, Amir Hussain, Danish and Owais has broken wall of his house and taken over the possession of his house. Thereafter, they found that lock of their house was broken and also found that all the accused persons were present outside his house. When they entered inside their house, they found that all their household articles were removed by the above-mentioned accused persons. Accused Nazar Hussain, Amir Hussain, Danish and Owais also entered the house from the back they had followed PW1/complainant and PW-2. Accused Nazar Hussain was armed with knife, Amir Hussain was armed with hammer, Danish armed with razor(ustara) and accused Owais was armed with iron rod. Two more accused persons along with sariya (iron road) came inside and followed the accused persons. PW-1, PW-2 and PW-3 were assaulted by the accused persons per their depositions and they have identified the accused persons who assaulted them. PW-1 Abrar Ahamad also suffers injuries per his MLC report. So, two facts of the case are established, presence of injury on the victim/ complainant and identification of the offender/accused persons who caused such injury. PW-2 and PW-3 have likewise also testified to assault and accused persons as offenders who caused injury upon them.
Digitally
signed by
ABHITESH
FIR No.481/2012 State Vs. Nazar Hussain Page No. 35/48 ABHITESH KUMAR
KUMAR Date:
2024.06.03
17:19:50
+0530
45. 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 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.
46. Qua injury, the testimony of PW1, PW2 and PW3 is consistent. No discrepancy has emerged from their deposition. Injuries of PW1, PW2 and PW3 further corroborated with MLC Ex. PW7/F, Ex. PW9/A and Ex. PW9/B. Nature of injury is silent in Ex. PW7/F. Ex. 9/A is the MLC of PW3 which opined that the nature of offence as "Simple". Ex. PW9/B is the MLC of Digitally signed by ABHITESH FIR No.481/2012 State Vs. Nazar Hussain Page No. 36/48 ABHITESH KUMAR KUMAR Date:
2024.06.03 17:19:55 +0530 PW2 which opined that the nature of injury is "Grievous". Here, the injury reported in Ex. PW9/B and the opinion on nature of injury, in view of this court, in not consistent. There is no material/evidence brought on record by the prosecution to prove that the PW2 was not able to perform his ordinary pursuit for 20 days or he suffered for 20 days or the injury/hurt endangers his life. In the absence of this evidence this court is of the view that the nature of injury on PW2 is also simple. In the absence of any evidence, the injury caused to the complainant shall also considered as simple. Injuries mentioned in MLC is not likely to cause death. Prosecution has also not brought material on record to show that injuries written in MLCs of PW1 and PW2 are likely to cause death though caused by weapon.
47. Now this court has took at the common intension of all the accused persons.
48. 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.
49. Ordinarily, a person is responsible for his own act. A person can also be vicariously responsible for the acts of others if 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 Digitally signed by ABHITESH FIR No.481/2012 State Vs. Nazar Hussain Page No. 37/48 ABHITESH KUMAR KUMAR Date:
2024.06.03 17:20:00 +0530 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).
50. 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.
51. 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;
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;
Digitally signed by ABHITESH ABHITESH KUMAR FIR No.481/2012 State Vs. Nazar Hussain Page No. 38/48 KUMAR Date:
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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.
52. In present case, PW1, PW2 and PW3 consistently deposed that all the accused persons were present at the spot with specific weapon. Further, all accused persons have taken part in causing injury to them. No discrepancy has emerged in cross examination of PW1, PW2 and PW3. Therefore, this court is of the view that all the accused persons have caused injury to the complainant, his mother and his brother with common intension.
53. In recording of statement, accused Amir Hussain has taken the plea of Alibi but he has not brought any evidence to prove the same.
54. Ld. Counsel for the accused raised the issue that MLC was prepared at about 01:00PM and FIR was registered at about 12:00PM on the date of incident which is material contradiction and render the whole case of the prosecution, false. In view the circumstance discussed above the aforesaid delay and contradiction seems to minor and it will not demolish the case of the prosecution. The time of incident is about 10:00AM and FIR was registered at about 12:00PM on the same date. Therefore, there is no delay in registration of FIR. Be that as it may, no Digitally signed by ABHITESH FIR No.481/2012 State Vs. Nazar Hussain Page No. 39/48 ABHITESH KUMAR KUMAR Date:
2024.06.03 17:20:09 +0530 explanation was asked from the prosecution witness qua reason for delay in registration of FIR.
55. Ld. Counsel for the accused persons further submitted that case of the prosecution cannot be said to have been proved since weapon is not recovered in this case and not produced before the court. Ld. APP for the state objected this submission by stating that recovery of weapon has no bearing on case when witnesses have proved the case and narrated the story of prosecution properly.
56. In Manga @ Man Singh V. State of Uttarakhand reported as (2013) 7 SCC 629, Hon'ble Supreme Court observed that "When there was enough evidence to support the version of the prosecution that the appellants, some of whom were in possession of licenced arms and others were holding unlicenced pistols and the shooting with those arms was sufficiently established by the version of the injured eye-witnesses, we fail to understand as to how non- detection of pellets or bullets will be of any consequence as a vitiating factor to defeat the case of the prosecution".
Further, recently in Rakesh and anr. V. State of UP reported as (2021) 7 SCC 188, Hon'ble Supreme Court observed that, "At the most, it can be said that the gun recovered by the police from the accused Digitally signed by ABHITESH FIR No.481/2012 State Vs. Nazar Hussain Page No. 40/48 ABHITESH KUMAR KUMAR Date:
2024.06.03 17:20:14 +0530 may not have been used for killing and therefore the recovery of the actual weapon used for killing can be ignored and it is to be treated as if there is no recovery at all. For convicting an accused recovery of the weapon used in commission of offence is not a sine qua non".
57. In the light of above discussion, non-recovery of weapon is not fatal for the prosecution in present case when complainant and other injured witness has proved the case sufficiently and also identified the accused. Injury sustained and narrated by him is also mentioned in MLC. Injuries written in MLC is also substantiating the nature of weapon used in the present case. Therefore, non-recovery of weapon is not fatal for the case of the prosecution.
58. Another defence raised by the ld. Counsel for the accused is that name of the accused is not disclosed in the MLC. Ld. Counsel for the accused raised the issue that why complainant and injured has not disclosed the name of the accused in the MLC when they were aware about their name while treatment. In order to answer this issue, the observation of Hon'ble Supreme Court in Dana Yadav @ Dahu & Ors vs State of Bihar reported as (2002) 7 SCC 795 is to be seen. It was observed that, "...there may be a case where an accused is known to a prosecution witness who did identify him at the time of the occurrence but for manifold reasons, he could not have divulged his name to the informant before the first information report Digitally signed by ABHITESH FIR No.481/2012 State Vs. Nazar Hussain Page No. 41/48 ABHITESH KUMAR KUMAR Date:
2024.06.03 17:20:19 +0530 was lodged. One of the reasons may be that such a witness could not meet the informant before the first information report was lodged and no sooner, after lodging of the first information report, without any reasonable delay, when he was examined by the police, name of the accused was disclosed. The other reason may be where such a witness received injuries during the course of the occurrence and became unconscious, as such he could not get opportunity to disclose name of the accused to the informant before the lodging of the first information report and no sooner, he regained consciousness, name of the accused was disclosed by him in his statement made before the police. These instances are by way of illustrations and cannot be exhaustive. In view of these and similar other circumstances, it can be said that merely because the accused was not named in the first information report, though he was known to some of the prosecution witnesses, no adverse inference can be drawn against the prosecution for not naming such an accused in the first information report."
59. Keeping in view the same analogy, complainant and injured were not asked to explain the circumstances under which name of the accused was not disclosed in the MLC. But name of the accused was written in the complaint Ex. PW1/A. Therefore, no adverse inference can be drawn against the prosecution for not naming such an accused in the MLC.
60. Ld. Counsel for the defence submitted that cloths of the complainant and injured persons were not collected during Digitally FIR No.481/2012 State Vs. Nazar Hussain Page No. 42/48 signed by ABHITESH ABHITESH KUMAR KUMAR Date:
2024.06.03 17:20:23 +0530 investigation. Investigation is not conducted fairly in this case. Weapons were not recovered by the police. Therefore, since the investigation is faulty the case of the prosecution is false. Ld. APP has submitted that faulty investigation cannot be a ground to disbelieve the case of the prosecution when victims have sufficiently proved the case and that faulty investigation is not affecting the merits of the case.
61. To understand this plea this court has perused Kasinath Mondal V. State of W.B. reported as (2012) 7 SCC 699, in which Hon'ble Supreme Court observed that, "It is said by this court in a number of cases that irregularities or deficiencies in conducting investigation by prosecution is not always fatal to the prosecution case. If there is sufficient evidence to establish the substratum of the prosecution case, then irregularities which occur due to remissness of the Investigating Agency, which do not affect the substratum of the prosecution case, should not weigh with the court". Same view was reiterated by the Hon'ble Supreme Court in N V Subbarao V. State reported as (2013) 2 SCC 162.
62. Complainant cannot suffer due to lapses of investigation as that would tantamount to giving a charter of lawlessness to a criminal who may have won over the police officials and investigation may have been deliberately made a fractured one. It is also pertinent to mention, that lapses of investigation may be bona fide as well due to both law and order duty and Digitally signed by ABHITESH FIR No.481/2012 State Vs. Nazar Hussain Page No. 43/48 ABHITESH KUMAR KUMAR Date:
2024.06.03 17:20:28 +0530 investigation duties being imposed on police officials. It is natural for a person to succumb to pressure and falter; however, lapses be it mala fide or bona fide cannot be allowed to make the victim a sufferer especially so when he has proved the incident and identified the culprits. In present case there is no discrepancy and contradiction in the testimony of the complainant and injured qua injuries sustained by them. There is sufficient evidence to establish the substratum of the prosecution case qua injuries caused to the complainant, his mother and his brother. Therefore, the contention that case of the prosecution is false due to faulty investigation cannot be accepted.
63. In State of HP V. Lekhi Raj reported as (2000) 1 SCC 247, Hon'ble supreme court observed that, "...A criminal trial is not like a fairy tale wherein one is free to give fight to one's imagination and phantasy. It concerns itself with the question as to whether the accused arraigned at the trial is guilty of the crime with which he is charged. Crime is an event in real life and is the product of interplay of different human emotions. In arriving at the conclusion about the guilt of the accused charged with the commission of a crime, the court has to judge the evidence by the yardstick of probabilities, its intrinsic worth and the animus of witnesses. Every case in the final analysis would have to depend upon its own facts. Although the benefit of every reasonable doubt should be given to the ABHITESH KUMAR FIR No.481/2012 State Vs. Nazar Hussain Page No. 44/48 Digitally signed by ABHITESH KUMAR Date: 2024.06.03 17:20:32 +0530 accused, the courts should not at the same time reject evidence which is ex facie trustworthy on grounds which are fanciful or in the nature of conjectures. The criminal trial cannot be equated with a mock scene from a stunt film. The legal trial is conducted to ascertain the guilt of innocence of the accused arraigned. In arriving at a conclusion about the truth, the Courts are required to adopt rational approach and judge the evidence by its intrinsic worth and the animus of the witnesses. The hyper technicalities or figment of imagination should not be allowed to divest the court of its responsibility of sifting and weighing the evidence to arrive at the conclusion regarding the existence or otherwise of a particular circumstance keeping in view the peculiar facts of each case, the social position of the victim and the accused, the larger interests of the society particularly the law-and-order problem and degrading values of life inherent in the prevalent system. The realities of life have to be kept in mind while appreciating the evidence for arriving at the truth. The courts are not obliged to make efforts either to give latitude to the prosecution or loosely construe the Digitally signed by ABHITESH FIR No.481/2012 State Vs. Nazar Hussain Page No. 45/48 ABHITESH KUMAR KUMAR Date:
2024.06.03 17:20:37 +0530 law in favour of the accused. The traditional dogmatic hypertechnical approach has to be replaced by rational, and genuine approach for administering justice in a criminal trial. Criminal Jurisprudence cannot be considered to be a Utopian though but have to be considered as part and parcel of the human civilisation and the realities of life. The courts cannot ignore the erosion in values of life which are a common feature of the present system. Such erosions cannot be given a bonus in favour of those who are guilty of polluting society and the mankind".
64. Further, in Sardul Singh v. State of Haryana reported as AIR 2002 SC 3462, Hon'ble Supreme Court observed that, "There cannot be a prosecution case with a cast iron perfection in all respects and it is obligatory for the courts to analyse, shift and assess the evidence on record, with particular reference to its trustworthiness and truthfulness, by a process of dispassionate judicial scrutiny adopting an objective and reasonable appreciation of the same, without being obsessed by an air of total suspicion of the case of the prosecution. What is to be insisted upon is not implicit proof. It has often been said that evidence of interested witnesses should be scrutinized more carefully to find out whether it has a Digitally signed by ABHITESH FIR No.481/2012 State Vs. Nazar Hussain Page No. 46/48 ABHITESH KUMAR KUMAR Date:
2024.06.03 17:20:44 +0530 ring of truth and if found acceptable and seem to inspire confidence, too, in the mind of the court, the same cannot be discarded totally merely on account of certain variations or infirmities pointed or even additions and embellishments noticed, unless they are of such nature as to undermine the substratum of the evidence and found to be tainted to the core. Courts have a duty to undertake a complete and comprehensive appreciation of all vital features of the case and the entire evidence with reference to the broad and reasonable probabilities of the case also in their attempt to find out proof beyond reasonable doubt".
65. In view of above discussion, prosecution has successfully proved the case, that all the accused persons have caused simple injury in furtherance of their common intension to the mother of the complainant namely, Haseena Begum and also caused simple injury to the complainant Abrar Ahmad and his brother Gulzar Ahmad with weapon in furtherance of their common intention, beyond reasonable doubt. The injuries mention in MLC and deposed by PW1, PW2 and PW3 are not likely to cause death since the same is the requirement of section 324 of the IPC.
Decision:
66. Accused (1) Nazar Hussain S/o Mr. Abdul Salam (2) Amir S/o Mr. Abdul Salam and (3) Danish S/o Mr. Nazar Digitally signed by ABHITESH FIR No.481/2012 State Vs. Nazar Hussain Page No. 47/48 ABHITESH KUMAR KUMAR Date:
2024.06.03 17:20:48 +0530 Hussain held not guilty and stands acquitted for the offence punishable under section 454/455/380/324/325/34 of IPC.
67. Accused (1) Nazar Hussain S/o Mr. Abdul Salam (2) Amir S/o Mr. Abdul Salam and (3) Danish S/o Mr. Nazar Hussain is held guilty and convicted for the offence punishable under section 323/34 IPC for causing simple hurt to Abrar Ahmad, Gulzar Ahmad and Haseena Begum.
Digitally signed by
ABHITESH ABHITESH KUMAR
KUMAR Date: 2024.06.03
17:20:54 +0530
Announced in open (Abhitesh Kumar)
Court today i.e on 03.06.2024 MM-08, (SE) Saket Courts
New Delhi
This Judgment contains fourty eight pages (48) and all pages Digitally signed by bears my signature. ABHITESH ABHITESH KUMAR KUMAR Date: 2024.06.03 17:20:58 +0530 (Abhitesh Kumar) MM-08 (SE): Saket Courts New Delhi: 03.06.2024 FIR No.481/2012 State Vs. Nazar Hussain Page No. 48/48