Delhi District Court
State vs . Sekh Munna on 2 May, 2018
IN THE COURT OF MM08 (CENTRAL DISTRICT)
TIS HAZARI COURTS COMPLEX, DELHI.
Presiding Officer: Dinesh Kumar, DJS.
IN THE MATTER OF :
State Vs. Sekh Munna
FIR No. 313/2014
PS : NDRS
U/s 324/34 IPC
Date of Institution : 21.04.2015
Date of reserving of order : 19.03.2018
Date of Judgment : 02.05.2018
J U D G M E N T
1. Serial No. of the case : 299098/16
2. Name of the Complainant : Vijay Kant
3. Date of incident : 07.07.2014
4. Name of accused :
Sekh Munna S/o Sh. Sekh Mubark
R/o Jindal Theka, Chaman Vihar,
Gadhey Wali Masjid, Loni Ghaziabad,
U. P.
5. Offence for which charge
has been framed : S 326/34 IPC.
6. Plea of accused : Not Guilty
7. Final Order : Acquitted
FIR No. 313/14 State Vs Sekh Munna Page 1 of 13
PS : NDRS
BRIEF REASONS FOR ORDER:
1.Mr. Sekh Munna, the accused herein, has been charged for committing offence punishable under Section 326/34, Indian Penal Code (45 of 1860) (hereinafter referred to as "IPC").
2. The case of the prosecution is that on 07.07.2014 at about 04:45 p.m., at Platform No.5, near Pakka pul, NDRS, Delhi, complainant Vijay Kant had come to see off one of his relative. The accused alongwith his co associates was standing near general coach of the train, Paschim Express. The complainant asked them as to why they were standing at the said place. At this, the accused and his friends started abusing the complainant. The complainant had entered inside the train to get rid of them, however the accused alongwith his associates entered in the coach. Two of them caught hold of the complainant and the third one, by using some sharp object, had attacked on the face of the complainant and caused injury on his face. Thereafter, they ran away from the spot. A complaint was made on the basis of which present FIR was registered. After investigation chargesheet was filed and accused was chargesheeted for the offences punishable under Section 324/34 IPC. The other associates of the accused could not be apprehended.
FIR No. 313/14 State Vs Sekh Munna Page 2 of 13PS : NDRS
3. After perusing the record, cognizance was taken by the Ld. Predecessor and summons were issued to the accused. Accused appeared in the Court. Compliance of Section 207, Criminal Procedure Code, 1973 (hereinafter referred to as 'Cr.P.C.) was done. After hearing the parties, charge for the offence punishable under Section 326/34 IPC was framed against the accused.
4. The prosecution has examined as many as 06 witnesses to prove its case against the accused.
5. PW1 Vijay Kant is the complainant. He has deposed that on 07.07.2014 at about 04:45 p.m., he was present at near Pakka pul, platform no. 5, NDRS to help one passenger in boarding the train Paschim Express. The passengers had boarded in coach no. S6. At that time, he had seen that accused alongwith your two associates (not arrested) standing outside the said coach. Coassociates of accused were doing theft of articles of the passengers. Accused was supervising the associates. He informed one of the passengers whose purse was stolen by accused and his coassociate. Thereafter, all the accused started abusing him and threatened. He had saved himself and ran away and entered in the coach S6. However, accused alongwith his associates entered into the coach. Coassociates of accused caught hold of him and accused had given a blow FIR No. 313/14 State Vs Sekh Munna Page 3 of 13 PS : NDRS on his face by some pointed object. Thereafter, all three ran away from the spot. PW1 has further deposed that someone had called the PCR at no. 100. Ct. Prabhakar reached at the spot, who shifted him to the LHMC Hospital. MLC was prepared. He was discharged from the hospital on 08.07.2014. He gave a statement to the police which is Ex.PW1/A. IO had prepared the site plan in his presence. On 10.11.2014, he had seen accused on the bridge of Sheela Talkies. He informed the police. Accused was apprehended. Accused was arrested vide memo Ex. PW1/B. Accused was personally searched vide memo Ex.PW1/C.
6. PW2 ASI Parmod Kumar has deposed that on 10.11.2014, he alongwith HC Harender Singh had reached at ODRS to apprehend the accused as the accused had already jumped the parole in case FIR No. 64/2011 of PS NDRS. He had arrested accused from ODRS. HC Harender Singh prepared Kallandra under Section 41(1) Cr.P.C. HC Harender Singh had recorded his disclosure statement Ex.PW2/A. Accused had disclosed about his involvement in case FIR No. 313/2014 of PS NDRS. Information in this regard was given to the concerned IO of FIR 313/2014. IO of FIR No. 313/2014 PS NDRS had recorded his statement in this regard.
FIR No. 313/14 State Vs Sekh Munna Page 4 of 13PS : NDRS
7. PW3 SI Madan Gautam has deposed that on 10.11.2014, on the request of dosier cell, Crime and Railway, he had generated search slip of accused. He had handed over these documents to the concerned official of dosier cell. He brought the computer generated relevant records qua accused which is running into 3 pages and Ex. PW3/A (colly). These documents are also forwarded by his Director. He has also brought certificate under Section 65B of Indian Evidence Act qua the aforesaid computer generated documents and this document is Ex.PW3/B.
8. PW4 ASI Surender Kumar is the duty officer. He has deposed that on 07.07.2014, he had recorded DD No.26 A, copy of which is Ex. PW4/A (OSR).
9. PW5 ASI Surender Singh has deposed that on 07.07.2014, he was posted as ASI at PS NDRS. On that day, after receiving DD No. 26A, Ex.PW4/A, he reached at LHMC Hospital, where he collected MLC of injured Vijay Kant, who was also present in the hospital. Doctor concerned had declared the injured fit for giving the statement. Injured was in deep pain and he requested to give his statement on the next day. Thereafter, he returned to the police station. On the next day, he had called the injured in the police station and recorded his statement which is Ex.PW1/A. He had prepared the rukka which is Ex.PW5/A and handed over the rukka to DO concerned, FIR No. 313/14 State Vs Sekh Munna Page 5 of 13 PS : NDRS who registered FIR of this case. After registration of FIR, DO had handed over him the copy of FIR and original rukka. Thereafter, he alongwith victim had reached at the spot and prepared the site plan which is Ex.PW5/B. The complainant had informed him that he could identify the accused if shown to him. They had tried to search the culprit but they could not succeed on that day. He had recorded statement of Ct. Prabhakar and also supplementary statement of complainant. On 08.07.2014, he had given one application which is Ex.PW5/C to RPF Incharge for providing CCTV footage of the spot and also for the preparation of CD. On 13.07.2014, he again moved an application which is Ex.PW5/D to RPF Incharge for the perusal of CCTV footage. On 16.07.2014, the complainant again joined the investigation of this case and he had shown him the dosier of different suspects. The complainant had identified one dosier of accused. The complainant had informed that accused was one of the assailants who had given injuries to him. On 09.11.2014, HC Harender Singh had apprehended the accused and the accused had made his disclosure statement and admitted his involvement in this case. He had obtained the copy of that disclosure statement which is Ex.PW2/A. On 10.11.2014, he had interrogated the accused. He had also called the complainant in the police station, who had FIR No. 313/14 State Vs Sekh Munna Page 6 of 13 PS : NDRS identified the accused as one of the assailants. On the identification of complainant, the accused was arrested and personally searched vide memo Ex.PW1/B and Ex.PW1/C. Supplementary statement of complainant was recorded. He had obtained the final opinion of doctor upon the MLC of victim. After necessary investigation of this case, he prepared the challan.
10. PW06 Retd. HC Prabhakar is the police official who had taken the complainant to hospital. He has deposed that on 07.07.2014, at about 4:455 :00 p.m., at Platform No.4/5, he had seen that one person was standing at the platform no.5 near Paschim Express and blood was oozing out from his mouth. He had shifted the said person to Lady Harding Hospital. He had disclosed his name as Vijay Kant. He was admitted in the hospital. IO came at the spot. He was unable to give his statement due to injury on his face. IO had recorded his statement.
11. The accused had admitted, under Section 294 Cr.P.C the documents FIR No. 313/2014, which is Ex. A1, MLC of Vijay Kant, Ex. A2, DD No.33A dated 07.07.2014, Ex. A3.
12. The witnesses were also cross examined by Ld. Defence Counsel. The prosecution evidence was closed.
FIR No. 313/14 State Vs Sekh Munna Page 7 of 13PS : NDRS
13. The accused was examined under Section 313 Cr PC r/w Section 281 Cr.PC. The accused denied the incriminating evidence. He would state that he was falsely implicated in the present case after calling from his home.
14. The accused did not lead any defence evidence. Therefore, matter was fixed for final arguments.
15. Ld. APP for the State would argue that the prosecution has proved its case beyond reasonable doubts. It has been proved that the accused was involved in the incident. He was identified by the complainant. MLC has been proved by the prosecution. Identity of the accused has been established. Hence, the prosecution has proved all the ingredients of the offences punishable under Section 326/34 IPC and the guilt of the accused has been proved beyond reasonable doubts. Hence, it is prayed, the accused may be convicted.
16. Ld. Defence counsel, on the other hand, would argue that the prosecution has failed to prove its case against the accused beyond reasonable doubts. There are various contradictions in the testimonies of the witnesses of the prosecution. The accused has been falsely implicated. He was not involved in any such incident. He has been falsely identified by the witnesses in the Court under the influence of the IO. It creates reasonable doubts FIR No. 313/14 State Vs Sekh Munna Page 8 of 13 PS : NDRS on the testimonies of the witnesses. Hence, it is prayed, the benefit of doubts may be given to the accused and he may be acquitted.
17. I have heard the rival submissions and carefully perused the material available on record.
18. In a criminal case the burden is on the prosecution to prove its case beyond reasonable doubts before the accused is asked to put his defence.
19. In the present case, the accused has been charged for offence punishable under Section 326/34 IPC. Section 326, IPC punishes, grievous hurt caused, inter alia, by instruments of shooting, stabbing, cutting etc. In the present case, the prosecution has to establish that:
1. accused was part of the group who had attacked the complainant and his brother,
2. grievous hurt was caused to complainant or his brother,
3. grievous hurt was intended to be caused or there was knowledge that the hurt caused was likely to be grievous,
4. grievous hurt was caused by instrument as mentioned under Section 326, IPC, FIR No. 313/14 State Vs Sekh Munna Page 9 of 13 PS : NDRS
5. It was caused by accused or any of the associate in furtherance of their common intention.
20. In the present case, the complainant has been examined as PW1 wherein he has narrated the entire incident. However, as the record would reveal, there are various contradictions in the testimony of the complainant as PW1 and in his statement recorded by the IO which had become the basis of the FIR. In his statement to the IO the complainant had stated that he had been working as labour on NDRS and he had come at the platform alongwith a passenger with his luggage. However, in his examination in the Court as PW1,he has stated that he used to help the passengers to board the trains. Further in his statement to the police the witness has stated that when he reached at the platform, he had seen 23 boys standing near the general coach of the train who appeared suspecious. However, in his examination as PW1 in the Court he has stated that two coassociates of the accused were doing illegal activities such as theft of some articles of the passengers and the accused was also standing and supervising his two associates. There is no such allegation in the statement to the police. The witness has further stated that he had informed one of the passenger whose purse was about to be stolen by the accused and his FIR No. 313/14 State Vs Sekh Munna Page 10 of 13 PS : NDRS associates. Again, there is no such statement made by the witness in his statement to the police
21. The accused is shown to be arrested on 10.11.2014, i.e., after about 4 months of the incident. The complainant in his testimony has stated that on 10.11.2014, he had seen the accused on the bridge of sheela talkies and he immediately informed the police who apprehended the accused at his instance. The arrest memo of the accused is Ex.PW1/B and his personal search memo is Ex.PW1/C
22. The IO PW5 ASI Surender Singh in his testimony has stated that during investigation of the case, he had shown to the complainant the dosier of different suspects and the complainant had identified the dosier of Sheikh Munna. On 09.11.2014, HC Harender Singh had apprehended the accused under Section 41.1 Cr.P.C and the accused had made disclosure statement while admitting his involvement in the present case. He had called the complainant in the PS who correctly identified the accused. Thereafter, the accused was arrested.
23. PW1 complainant has stated that he had seen the accused at the bridge of sheela talkies and he had informed the IO who had thereafter arrested the accused. However, the IO in his testimony has stated that the FIR No. 313/14 State Vs Sekh Munna Page 11 of 13 PS : NDRS accused was arrested by HC Harender Singh under Section 41.1 Cr.P.C and when the accused made a disclosure statement regarding his involvement in the present case, he had called the complainant in the PS who had identified the accused. This is a material contradiction which creates doubts on the manner of the arrest of the accused. Further, the IO has stated that after the accused was apprehended, he had called the complainant in the PS who identified the accused. This entire procedure adopted by the IO is foreign to the criminal procedure applicable in India. There is no explaination as to why the IO did not move application for TIP proceedings by a Megistrate. It also creates doubts on the identity of the accused by the witness. I find merits in the submissions of Ld. LAC for the accused that the possibility of the false implication to solve the case cannot be ruled out. It is settled position of law that wherever there are two views possible, the view which favours the innocence of the accused is to be accepted by the Court. The fact that the complainant substantially improved his statement during his examination as PW1 and because the factum and place of arrest of the accused has come under the clouds of doubts, I am of the considered opinion that the accused is entitled to the benefits of reasonable doubts.
FIR No. 313/14 State Vs Sekh Munna Page 12 of 13PS : NDRS
24. In the light of the discussions hereinabove, I hold that the prosecution has failed to discharge the initial burden beyond reasonable doubt. The identity of the accused has come under the clouds of doubts. The accused is given benefit of reasonable doubts. He is therefore acquitted of the charges made against him.
25. The accused has already furnished bond under Section 437A, with one surety. Digitally signed by DINESH DINESH KUMAR KUMAR Date:
2018.05.02 16:57:23 +0530 Pronounced in the open Court on (Dinesh Kumar) this 02nd Day of May 2018. MM08 (Central) Tis Hazari Courts, Delhi FIR No. 313/14 State Vs Sekh Munna Page 13 of 13 PS : NDRS