Delhi District Court
State vs . Mohd. Zahid & Ors. on 28 July, 2020
FIR No. 492/08
PS Jahangir Puri
U/s.186/353/332/323/427/34 IPC
State Vs. Mohd. Zahid & Ors.
IN THE COURT OF MS RICHA SHARMA
METROPOLITAN MAGISTRATE: ROHINI COURTS: DELHI.
FIR No. 492/08
U/s 186/353/332/323/427/34 IPC
PS: Jahangir Puri
State vs. Mohd. Zahid & Others
Date of Institution of case:21.08.2010
Date of Judgment reserved: 04.07.2020
Date on which Judgment pronounced:28.07.2020
JUDGMENT
Unique ID no. : 5283519
Date of Commission : 10.03.2008
of offence
Name of the : Dr. Apram
complainant
Name of the accused : (1) Mohd. Zahid S/o Mohd. Saddique
persons (2) Sunil Kumar S/o Sh. Om Prakash
(3) Mohd. Israel S/o Late Mohd Muslim
Offence complained of : 186/353/332/323/427/34 IPC Plea of accused : Not guilty Date of order : 28.07.2020 Final Order : Acquittal Digitally signed by RICHA RICHA SHARMA SHARMA Date: 2020.07.28 13:30:53 +0530 Page 1 of 24 FIR No. 492/08 PS Jahangir Puri U/s.186/353/332/323/427/34 IPC State Vs. Mohd. Zahid & Ors. BRIEF REASONS FOR DECISION:
1. The story of the prosecution in brief is as under:
The case of the prosecution in brief is, that on 10.03.2008, at about 01:15 pm, at BJRM Hospital, Jahangir Puri, Delhi, accused Mohd. Zahid, Sunil Kumar and Mohd. Israel voluntarily obstructed Dr. Apram and other doctors (who were public servants) in discharging their public functions and all accused persons used criminal force towards the public servants. All accused persons voluntarily caused hurt to Dr. Apram, Dr. Vikram Tolani, Dr. Vinod Kumar and Ct. Devender in the discharge of their public duty. Accused persons committed mischief causing damage to the hospital property and thereby committed an offence. Hence, the accused persons have been facing the trial for offences u/s 186/353/332/323/427/34 IPC.
2. It is noteworthy, that after the investigation, the chargesheet was filed in the Court against the accused persons for the offences under Section 186/353/332/323/427/34 IPC. The copies of charge sheet were supplied to the accused in compliance of Section 207 Code of Criminal Procedure (hereinafter called as Cr.P.C.). Charge for the offences u/s 186/353/332/323/427/34 IPC was framed against them vide order dated 20.05.2011, by Ld. Predecessor of the Court, to which Digitally they pleaded not guilty and claimed trial. signed by RICHA RICHA SHARMA SHARMA Date:
2020.07.28 13:31:02 +0530 Page 2 of 24 FIR No. 492/08 PS Jahangir Puri U/s.186/353/332/323/427/34 IPC State Vs. Mohd. Zahid & Ors.
List of witnesses and documents proved
3. In order to prove its case, prosecution had examined following witnesses and produced the following documents in its documentary evidence :
Sl PW No. Name Document proved Ex. No.
No.
1 PW1 Dr. Apram Dua His Statement Ex.PW1/A
Ex.PW1/B
2. PW2 Seema Mishra
3. PW3 WSI Geeta Rani FIR Ex.PW3/A
4 PW4 Vikram Tolani
5. PW5 Dr. Vinod Kumar
6. PW5A Sh. Anil Sharma Photographs Ex.P1 to Ex.P
6
7 PW6 Dr. Javed Salam Duty Rostar of Ex.PW6/A
Doctor
8 PW7 Sh. Ashok Kumar XRay Plate Ex.PW7/A1 to
alongwith report of Ex.PW/A5.
Radiologist Dr.
Shipra Rampal
bearing No.1367/08,
1065/08, 1368/08
(two reports) and
1372/08
9 PW8 Ct. Rajender Duty Roster of PS Ex.PW8/A
Jahangir Puri
Digitally
signed by
RICHA
RICHA SHARMA
SHARMA Date:
2020.07.28
13:31:12
+0530
Page 3 of 24
FIR No. 492/08
PS Jahangir Puri
U/s.186/353/332/323/427/34 IPC
State Vs. Mohd. Zahid & Ors.
10 PW9 HC Dayakishan Arrest Memo Ex.PW9/A
Personal Search Ex.PW9/B
Memo Ex.PW9/C
Disclosure Statement
of accused Zahid
11 PW9A Dr. Yashwant MLC Ex.PW9/A
ME Report Ex.PW9/B
Ex.PW9/C
12 PW10 HC Sombir Arrest Memo Ex.PW10/A
Personal Search Ex.PW10/B
Memo Ex.PW10/C
Ex.PW10/D
13 PW11 Dr. Deepak
14 PW12 Dr. Seema MLC no. 1372 Ex.PW12/A
15 PW13 ASI Devender
Kaushik
16 PW14 SI Anup Singh
17 PW15 ACP Vipin Kumar
18 PW16 Inspector Ramesh Site Plan Ex.PW16/A
Kumar
4. PW1 is Dr. Apram Dua, S/o Dr. Gopal Dua, R/o C8/284, Keshav Puram, Delhi. He deposed, that on 3092008, he was on duty at Casualty at BJRM Hospital and at about 01:50 pm, accused Jahid along with another person came in Casualty with an injured child for his medical examination. Dr. Nadeem (JR) was giving the first Aid to that injured child. Meanwhile the accused Jahid entered into attercation with Dr. Nadeem saying "Tumne Paise Kha Liye Hai, Kyoki Tum Case Digitally signed by RICHA RICHA SHARMA SHARMA Date:
2020.07.28 13:31:19 +0530 Page 4 of 24 FIR No. 492/08 PS Jahangir Puri U/s.186/353/332/323/427/34 IPC State Vs. Mohd. Zahid & Ors.
Dabana Chate Ho". On hearing the noise, other associates of the accused Jahid, entered inside the casualty, grabbed the collar of the Dr. Nadeem and inflicted injury on his person with BP Apparatus. When Dr. Prashant intervened to protect Dr. Nadeem, he was also beaten up by the accused Jahid and his other associates. Dr. Prashant was dragged upto the entrance gate. The culprits including accused Jahid also threw a chair towards him due to which, he also sustained injuries. All the culprits ransacked the casualty room. He made a call to MS & to PCR at 100 number. Thereafter, PCR officials reached on the spot, but by that time the culprits had run away. The photographs of the spot were clicked by his colleagues vide photographs Ex.P1 to P6. The concerned DMS also reached there and thereafter they went on a strike. On the day of incident itself, he went to PS with written complaint, however, no action was taken by the police and therefore, he had to approach the Commissioner of Police. After three days of incident, the FIR was registered on his complaint vide Ex.PWI/A, bearing his signatures at point A. He pointed out the place of occurrence to police. He had also given a written complaint to MS vide his complaint Ex.PW1/B. However, no action was taken on the complaint prior to lodging of the FIR. He came to know later on that names of one of the culprits was Sunil, but he cannot identify him due to lapse of time and also he cannot identify the other culprits due to the same reason.
This witness was cross examined by Ld. APP for the State as Digitally signed by he is resiled from his previous statement. RICHA SHARMA RICHA SHARMA Date:
2020.07.28 13:31:26 +0530 Page 5 of 24 FIR No. 492/08 PS Jahangir Puri U/s.186/353/332/323/427/34 IPC State Vs. Mohd. Zahid & Ors.
This witness was also cross examined by Ld. Defence counsel.
5. PW2 is Seema Mishra, W/o Sh. N.K. Mishra, Age41 Years, R/0 191, A/E Railway Colony, Gulbird Road, Tis Hazari, Delhi. She is a staff nurse at BJRM Hospital and she deposed, that on on 3092008, she was on duty in the casualty. In the morning, one injured child was brought to the casualty by some persons and at that time she was busy with her work. In the meanwhile, she heard some quarrel/ noises and saw that some persons ransacked the hospital and gave beatings to the concerned doctors in the casualty. The sister incharge directed them to go towards a separate room and on her direction they went in that room. The concerned doctors/victim went to MS.
This witness was cross examined by Ld. APP for the State as she was suppressing some facts with regard to identity of the accused persons.
This witness was also cross examined by Ld. Defence counsel.
6. PW3 is WSI Geeta Rani, No. 2952D, CAW Cell, Pitampura, Delhi. She was the duty officer on 04.10.2008, at PS Jahangir Puri and she proved the copy of present FIR which is Ex.PW3/A.
7. PW4 is Vikram Tolani, S/o Sh. G. M. Tolani, R/o A12, Tulsi Apartments, Sector14, Rohini, Delhi. He deposed, that in the year Digitally signed by RICHA RICHA Page 6 of SHARMA 24 SHARMA Date:
2020.07.28 13:31:42 +0530 FIR No. 492/08 PS Jahangir Puri U/s.186/353/332/323/427/34 IPC State Vs. Mohd. Zahid & Ors.
2008, he was working as Senior Resident at BJRM Hospital, Jahangir Puri, Delhi. On 30.9.2008, at about 01.15 p.m., when he was present in the Emergency Room, one person, namely Mohd. Jahid came in the emergency room, who was relative of one injured Afsar, aged about 42 years. Dr. Apram and Dr. Prashant were also present with him in the emergency room. Mohd. Jahid asked them, as to how many stitches, they had put on the head of Afsar. They told him that they do not count the stitches and they put the stitches on the basis of length and breadth of the injury and they had mentioned the same on the MLC. He further stated that Mohd. Jahid hit Dr. Apram on his head with a stool. Accused Mohd. Jahid also hit him, other doctors and staff members. Thereafter, he left the emergency room. Accused Mohd. Jahid also damaged the furniture in the emergency room. Police came to the hospital. IO recorded his statement.
This witness was cross examined by Ld. APP for the State as he is resiling from his previous statement.
This witness was not cross examined by Ld. Defence counsel.
8. PW5 is Dr. Vinod Kumar s/o Sh. Ghanshyam, R/o Opposite Tarun Hotel, ITBE Shiv Puri, Madhya Pradesh. He deposed, that on 30.09.2008, he was working as doctor in BJRM hospital. On that day, his duty was in labour room. At about 01:15 pm, he was going towards casualty to meet his colleagues and he saw that some persons were Digitally signed by RICHA RICHA SHARMA Page 7 of 24 SHARMA Date:
2020.07.28 13:31:50 +0530 FIR No. 492/08 PS Jahangir Puri U/s.186/353/332/323/427/34 IPC State Vs. Mohd. Zahid & Ors.
quarreling with casualty doctors including Dr. Apram. Someone from those persons had thrown a stool on Dr. Apram, due to which he suffered injuries on his head. He also suffered injury on his right ankle due to being hit by stone. Police official recorded his statement.
This witness was cross examined by Ld. APP for the State as he is resiling from his previous statement.
This witness was not cross examined by Ld. Defence counsel.
9. It is noteworthy, that inadvertently two witnesses have been mentioned as PW5, hence for the sake of convenience and to avoid any confusion, next witness is being mentioned as PW5A.
PW5A is Sh. Anil Sharma, Proprietor of Nutan Photo Studio, E28, Main Market, Jahangir Puri, Delhi. He deposed, that on 30.09.2008, he was present at his studio. At about 03:30 to 4:00 pm, he received a call of IO upon which he went to BJRM Hospital, where he had clicked 6 photographs by his digital camera. Afterwards, he gave the developed copies of photographs which are already Ex.P1 to P6.
This witness was not cross examined by Ld. Defence counsel.
10. PW6 Dr. Javed Salam, Specialist Medicine, AAA Hospital, Delhi. He deposed, that in the month of August, September, he was posted as Incharge, Casualty, BJRM Hospital. He had prepared the duty roaster of Doctors (JR) for their duties in the Casualty for the month of September, 2008 and copy of the same is Ex.PW6/A, Digitally signed by RICHA RICHA SHARMA SHARMA Date: 2020.07.28 13:32:00 +0530 Page 8 of 24 FIR No. 492/08 PS Jahangir Puri U/s.186/353/332/323/427/34 IPC State Vs. Mohd. Zahid & Ors.
bearing his signature at point A. He further stated that duty roaster of CMO was also prepared by him but duty roaster of the CMO for the month of September, 2008 had been prepared by Dr. R.Subhyalakshmi. The same is MarkA. This witness was not cross examined by Ld. Defence counsel.
11. PW7 is Sh. Ashok Kumar, MRD Clerk, BJRM Hospital, Jahangir Puri, Delhi. He deposed, that he had brought XRay Plate alongwith report of Radiologist Dr. Shipra Rampal, bearing No.1367/08, 1065/08, 1368/08 (two reports) and 1372/08 which are Ex.PW7/A1 to Ex.PW/A5.
This witness was not cross examined by Ld. Defence counsel.
12. PW8 is Ct. Rajender No.2546N/W, PS Jahangir Puri, Delhi. He deposed, that he was posted as Duty Roaster Clerk in PS Jahangir Puri. He had brought original duty roaster of PS Jahangir Puri dated 30.09.2008 and same is Ex.PW8/A. This witness was not cross examined by Ld. Defence counsel.
13. PW9 is HC Dayakishan, No 2331/PCR, Outer Zone Delhi. He deposed, that on 23/10/2008, he was posted at PS Jahangirpuri as a constable. He alongwith Inspector Vipin Bhatia had join the investigation of the present case. On that day at around 11:30 AM, IO arrested the accused Mohd Zahid from E block. IO prepared arrest Digitally signed by RICHA RICHA SHARMA SHARMA Date: 2020.07.28 13:32:08 +0530 Page 9 of 24 FIR No. 492/08 PS Jahangir Puri U/s.186/353/332/323/427/34 IPC State Vs. Mohd. Zahid & Ors.
memo and personal search memo of the Accused, which are Ex.PW 9/A and Ex.PW9/B, respectively, both bearing his signature at point A. IO recorded his statement. Disclosure Statement of the Accused Zahid is EX. PW9/C, bearing my signature at point A. This witness was cross examined by Ld. Defence counsel.
14. It is noteworthy, that inadvertently two witnesses have been mentioned as PW9, hence for the sake of convenience and to avoid any confusion, next witness is being mentioned as PW9A.
PW9A is Dr. Yashwant R/o Village Barwa Jangar, Post Office Dilip Nagar, District Kushi Nagar, UP. He deposed, that on 30.09.2008, he was posted as CMO at BJRM Hospital. On that day, he examined Dr. Vinod Kumar, who was assaulted during the discharge of his duty vide MLC No. PW9/A, bearing his signature at point A. He further stated that on 12.11.2008, he again examined accused Mohd. Israil and Sunil vide M.E Ex.PWPW9/B and Ex.PW9/C, bearing his signature at point A. This witness was not cross examined by Ld. Defence counsel.
15. PW10 is HC Sombir, No. 1106/Tratfic, Mayapuri Trafic Circle, Delhi. He deposed, that on 12.11.08, he was posted at PS Jahangir Puri as constable. On that day, he along with IO Inspector Vipin Kumar joined the investigation of the present case. On that day, IO made inquires from accused Sunil Kumar and accused Mohd. Israil. Digitally signed RICHA by RICHA SHARMA SHARMA Date: 2020.07.28 13:32:21 +0530 Page 10 of 24 FIR No. 492/08 PS Jahangir Puri U/s.186/353/332/323/427/34 IPC State Vs. Mohd. Zahid & Ors.
Thereafter, IO arrested both the accused persons vide arrest memo Ex.PW10/A and Ex.PW10/B, bearing his signature at point A. IO conducted personal search of accused Sunil Kumar and from the personal search of accused Sunil Kumar, Rs.55/ in cash was recovered and from the personal search of accused Mohd. Israil, Rs.80 in cash were recovered. Personal search memos of accused are Ex.PWIO/C and Ex.PW10/D, both bearing his signature at point A. Thereafter, both the accused persons were taken to BJRM Hospital for their medical examination and thereafter both the accused persons were put behind the bar.
This witness was cross examined by Ld. Defence counsel.
16. PW11 is Dr. Deepak, CMO, BJRM Hospital. He was deputed by MS BJRM Hospital to depose on behalf of Dr. Sunil. Dr. Sunil left the services of the hospital and present whereabouts are not known to the hospital staff. He deposed, that he worked with him during the course of his official duty and he had seen Dr. Sunil writing and signing during the official course of duty vide MLC no. 1065 of Dr. Vinod Kumar S/o Sh. Ghanshyam Das, he was brought to casualty with alleged history of physical assault. He was examined by Dr. Sunil (SR Ortho). The MLC no. 1065, bearing the signature of Dr. Sunil at point B and C is already exhibited as Ex.PW9/A. This witness was cross examined by Ld. Defence counsel.
Digitally signed by RICHA SHARMA RICHA Date:
SHARMA 2020.07.28
13:32:30
+0530
Page 11 of 24
FIR No. 492/08
PS Jahangir Puri
U/s.186/353/332/323/427/34 IPC
State Vs. Mohd. Zahid & Ors.
17. PW12 is Dr. Seema, CMO, BJRM Hospital. She was deputed by BJRM Hospital to depose on behalf of Dr. Bhawna. Dr. Bhawna has left the services of the hospital and her present whereabouts are not known to the hospital staff. She deposed that she had worked with Dr. Bhawna during the course of her official duties and she has seen Dr. Bhawna write and sign during the official course of her duty. She deposed that as per the MLC no. 1372 of Dr. Vikram Tolani, S/o Sh. G. M. Tolani, injured was brought to casualty with alleged history of physical assault. He was examined by Dr. Sunil (SR Ortho). The MLC no. 1372, bears the signature of Dr. Bhawna at point A. The MLC is Ex.PW12/A. This witness was cross examined by Ld. Defence counsel.
18. PW13 is ASI Devender Kaushik, No. 75C, PS Patel Nagar. He deposed, that on 30.09.2008, he was posted as Constable in BJRM Hospital, Jahangir Puri. On that day, his duty hours were from 08:00 am to 08:00 pm. At about 01:15 pm, one child namely Afsar, aged about 4 years 6 months was admitted in the emergency department of the hospital with the alleged history of RTA. In the meantime, the accused Mohd. Jahid alongwith co accused persons Sunil and Mohd. Israel came in emergency department and started arguments with the Dr. Apram regarding the stitcher, put on the injured child Afsar. During the arguments, accused Jahid picked up a steel stool (on which patient used to sit) and used the same to hit Dr. Apram, Dr. Nadeem , Digitally signed by RICHA RICHA SHARMA SHARMA Date: 2020.07.28 13:32:38 +0530 Page 12 of 24 FIR No. 492/08 PS Jahangir Puri U/s.186/353/332/323/427/34 IPC State Vs. Mohd. Zahid & Ors.
Dr. Vikram and Dr. Vinod. Thereafter, all the accused persons started to give beatings to the above named doctors and they also damaged the table, telephone and instruments of the doctors. He further deposed, that when he tried to rescue the doctors from the accused persons, the accused Jahid Qureshi also hit him with stool on his right hand, due to which he sustained injuries. Someone made a call at 100 number and after some time, police officials reached the spot. This witness was cross examined by Ld. Defence counsel.
19. PW14 is SI Anup Singh, No. 608/D, Supreme Court Security. He deposed, that on 23.10.2008, he was posted at PS Jahangir Puri as HC. He joined the investigation with the IO. At about 10:00 am, accused Mohd. Jahid was arrested from E Block, Jahangir Puri, Delhi in his presence vide arrest memo already exhibited as Ex.PW9/A, bearing his signature at point B and conducted his personal search vide personal search memo already Ex.PW9/B, bearing his signature at point B and also recorded his disclosure statement vide memo already exhibited as Ex.PW9/C, bearing his signature at point B. This witness was not cross examined by Ld. Defence counsel.
20. PW15 is ACP Vipin Kumar, No. 16890020, Sub Division Bawana. He deposed, that on 22.10.2008, he was posted at PS Jahangir Puri as Inspector. On that day, further investigation of this case was marked to him by the concerned SHO. He further deposed that on Digitally signed RICHA by RICHA SHARMA SHARMA Date: 2020.07.28 13:32:49 +0530 Page 13 of 24 FIR No. 492/08 PS Jahangir Puri U/s.186/353/332/323/427/34 IPC State Vs. Mohd. Zahid & Ors.
23.10.2008, he alongwith Ct. Daya Kishan and HC Anup Singh went to E Block, Jahangir Puri and arrested accused Mohd. Zahid vide arrest memo, which is already exhibited as Ex.PW9/A, bearing his signature at point C. He also conducted personal search of the accused vide memo already exhibited as Ex.PW9/B, bearing his signature at point C. On the same day, he produced the accused in the court and sent him to JC by the order of court. He recorded the statement of Ct. Daya Kishan and HC Anup Singh u/s 161 cr.p.c. He further deposed, that during the course of investigation, he obtained the result regarding nature of injury sustained by the injured persons namely Dr. Apram, Dr. Vinod, Dr. Vikram and Duty Constable Devender on their respective MLCs. He moved an application for seeking sanction u/s 195 cr.p.c to MS of BJRM Hospital and pursued it. He further deposed, that on 12.11.2008, he arrested the accused persons, Sunil Kumar and Mohd. Israil vide memos already exhibited as Ex.PW10/A and Ex.PW10/B respectively, bearing his signature at point B. He also conducted the personal search of the accused persons Sunil Kumar and Mohd. Israil vide memos already exhibited as Ex.PW1/C and Ex.PW1/D, bearing his signature at point B respectively. He recorded the statement of Ct. Somvir. He also recorded the statement of Anil Sharma (photographer) u/s 161 cr.p.c. On 25.08.2009, he submitted the case file to MHCR as he was transferred from PS Jahangir Puri to PS Saraswati Vihar.
This witness was cross examined by Ld. Defence counsel.
Digitally signed by RICHA RICHA SHARMA
SHARMA Date:
2020.07.28
13:32:56 +0530
Page 14 of 24
FIR No. 492/08
PS Jahangir Puri
U/s.186/353/332/323/427/34 IPC
State Vs. Mohd. Zahid & Ors.
21. PW16 is Inspector Ramesh Kumar, No. D3763, Security Headquarter, Vinay Marg, New Delhi. He deposed, that on 04.10.2008, he was posted at PS Jahangir Puri as SI. On that day, after registration of present FIR, the case file was marked to him by the concerned SHO for further investigation. After inspection of case file, he alongwith Ct. Devender went to the spot i.e. BJRM Hospital, Jahangir Puri. Due to strike in the BJRM Hospital, no complainant/ injured was present in the hospital. Thereafter, he alongwith Ct. Devender came back to the PS. On the next day, he again went to the spot, where he met Duty Constable Devender. Strike continue in the hospital even on the next day. He prepared a site plan at the instance of Ct. Devender, which is Ex.PW16/A, bearing his signature at point A. During investigation, he recorded the statement of injured person namely Dr. Apram, Dr. Vikram and Dr. Vinod and other staff members. He tried to search the accused persons but they did not find. He further deposed that on 22.10.2008, he submitted the case file to MHCR as further investigation of this case was marked to Inspector Vipin Bhatia by the concerned SHO. He further deposed, that on 02.09.2009, SHO again handed over this case file to him for further investigation. He inspected the case file. He obtained sanction u/s 195 cr.p.c. After completion of investigation, he prepared chargesheet and filed the same in the court for trial.
This witness was cross examined by Ld. Defence counsel.
Digitally signed by RICHA SHARMA RICHA Date:
SHARMA 2020.07.28
13:33:04
+0530
Page 15 of 24
FIR No. 492/08
PS Jahangir Puri
U/s.186/353/332/323/427/34 IPC
State Vs. Mohd. Zahid & Ors.
22. After examination of the aforesaid prosecution witnesses, prosecution evidence was closed vide order dated 31.01.2020.
23. Subsequently, statement of all the accused persons were recorded u/s 313 CrPC read with section 281 of CrPC, wherein the accused persons stated that they have falsely been implicated in the present case and all the prosecution witnesses have deposed falsely. The accused persons did not lead any defence evidence.
24. Thereafter, final arguments were heard from both the side comprehensively. I have heard the rival submissions and have given my thoughtful consideration to the entire record.
25. In order to prove it case, the prosecution has examined sixteen witnesses in all. The case of the prosecution principally rests upon the testimony of injured/ eye witness i.e. PW1 Apram Dua, PW4 Dr. Vikram Tolani and PW5 Dr. Vinod Kumar. But studied scrutiny of testimony of PW1, PW4 and PW5 squarely satisfied this court that they failed to identify the alleged accused persons to the effect that on 10.03.2008 at about 01:15 pm, the accused persons present in the court have voluntarily obstructed Dr. Apram Dua (PW1) and other another doctor, who were discharging their public functions at BJRM Hospital and further that the accused persons used the criminal force against them. Further, that the accused persons voluntarily caused hurt to Dr. Digitally signed by RICHA RICHA SHARMA SHARMA Date: 2020.07.28 13:33:13 +0530 Page 16 of 24 FIR No. 492/08 PS Jahangir Puri U/s.186/353/332/323/427/34 IPC State Vs. Mohd. Zahid & Ors.
Apram Dua (PW1), Dr. Vikram Tolani (PW4), Dr. Vinod Kumar (PW5) and Ct. Devender. Infact, all the above three witnesses have totally falsified the story of the prosecution that accused persons present in the court have caused any injury to the complainant/ injured as they have miserably failed to identify the alleged accused persons present in the court. All of the above three principal witnesses were cross examined by the Ld. APP for the State as they resiled from their previous statements, but despite their lengthy crossexamination, nothing fruitful to the case of the prosecution could be elicited from the mouth of these witnesses.
26. PW1 i.e. Dr. Apram Dua, categorically stated in his cross examination, on being asked about the identity of the alleged accused Sunil, that he is not sure as to whether he was one of the culprits as he is unable to recognize him due to lapse of four years since the time of the incident. It is further pertinent to mention that, PW1 stated in his examination in chief that "... I came to know later that the name of one of the culprits is Sunil but I can not identify him due to lapse of time and also I can not identify the other culprits due to the same reason..". It is further material to mention that, on being crossexamination by the Ld. Defence Counsel for the accused, PW1 stated that he does not remember the name of the injured child which was brought to the casualty by the accused persons and further stated that he did not mention the physical description of the culprits in the complaint. It will Digitally signed RICHA by RICHA SHARMA SHARMA Date: 2020.07.28 13:33:23 +0530 Page 17 of 24 FIR No. 492/08 PS Jahangir Puri U/s.186/353/332/323/427/34 IPC State Vs. Mohd. Zahid & Ors.
not be out of place to state that PW1 categorically stated in his cross examination that on the day of the incident, IO did not take any photographs of the spot and further stated that there were two tables in the casualty, out of which on one table the medicines were lying and the other table was for doctor. PW1 was shown the photographs filed on record and was specifically asked in his crossexamination, "whether any medicines are depicted in the photographs or not ?. Of seeing the photographs, PW1 stated that, "no medicine is depicted in the photographs". Also, the photographs do not depict any patient and it is highly unlikely that in a hospital which is flocked with patients on daily basis, none is visible in the photographs. Thus, the testimony of the PW1 is not only vague and inconsistence but is also not sufficient to prove the guilt of the accused persons. It was incumbent upon the prosecution to have established the identity of the accused persons, specially and more so in a case where the injured persons have been examined but in this case the injured i.e. PW1 has failed to identify the accused persons outrightly.
27. Another injured examined by the prosecution is PW4 i.e. Dr Vikram Tolani. Deposition of PW4 is more or less on the same line as that of PW1. PW4 averred in his examination in chief that, " I am not able to identify the accused Mohd. Zahid due to lapse of time". He was cross examined by the Ld. APP for the State, whereby his attention was drawn towards accused Mohd. Zahid but witness submitted that he can Digitally signed by RICHA RICHA SHARMA SHARMA Date: 2020.07.28 13:33:36 +0530 Page 18 of 24 FIR No. 492/08 PS Jahangir Puri U/s.186/353/332/323/427/34 IPC State Vs. Mohd. Zahid & Ors.
not identify the accused due to lapse of time. Thus, the testimony of PW4 also does not support the case of the prosecution and is insufficient to establish the guilt of the accused.
28. Dr. Vinod Kumar, being another injured was examined by the prosecution as PW5. PW5 categorically stated in his examination in chief that " I can not identify those persons today as around 8 years have passed. I can not tell today the gravity of injuries of Dr. Apram Dua. I also do not know whether other doctors suffered injuries or not. I had not intervened in the quarrel. Names of those persons were not known to me." This witness was also cross examined by the Ld. APP for the State, whereby all the three accused persons standing in the court were pointed out but PW5 stated, that he is unable to identify the accused persons. He further stated that he does not remember if the name of the accused persons were Mohd. Zahid, Sunil Kumar and Mohd. Israel. He further stated, that he does not remember whether Dr. Vikram Tolani was assaulted or not. Thus, from the entire testimony of PW5 as well it can be deduced that PW5 has miserably failed to support the case of the prosecution.
29. It is well settled law that statements recorded u/s 161 cr.pc. can be used for the purpose of corroboratory or contradicties the substantial evidence recorded before the court. Though, the statements Digitally signed RICHA by RICHA SHARMA SHARMA Date: 2020.07.28 13:33:45 +0530 Page 19 of 24 FIR No. 492/08 PS Jahangir Puri U/s.186/353/332/323/427/34 IPC State Vs. Mohd. Zahid & Ors.
of PW1, PW4 and PW5 recorded u/s 161 cr.p.c by the police, were put to them but even the same was subsequently not admitted to in the court. However, there is no corroborate piece of substantial evidence which may lend credence to the version of the prosecution.
30. It is an admitted case, that the entire alleged incident took place in a hospital, which not only falls within the domain of a public place but is flocked with patient, visitors, doctors, nurses, attending staff, administrative staff, security staff etc. and thus, there can be no denial to the fact that persons of general public were present at the hospital at the time when the alleged incident took place. Despite this being an admitted fact that hospital is a public place and a number of persons of public were present, no independent witness was examined by the prosecution and no reasonable and plausible explanation has been tendered by the prosecution as to why no independent witness was joined to corroborate the version of the prosecution, such evidence amount, to exparte proceeding and this court seeks support from the law laid down in case law authority namely Booti Vs. State of Punjab, 1994 (1) CCC 370, Gurdial Singh Vs. State of Punjab, 2004 (2) RCR 745, Salwinder Singh Vs, State of Punjab , 2003 (3) RCR 70.
31. Therefore, the identity of accused persons perse have not been established and none of the prosecution witnesses speaks about the receiving of injuries at the hand of the alleged accused personsDigitally or signed RICHA by RICHA SHARMA SHARMA Date: 2020.07.28 13:33:53 +0530 Page 20 of 24 FIR No. 492/08 PS Jahangir Puri U/s.186/353/332/323/427/34 IPC State Vs. Mohd. Zahid & Ors.
giving of the injuries by the accused persons to the injured. At this stage, court deems it fit to state that in the case of "Suraj Singh Vs. State of UP (24 July, 2008)", the Hon'ble Apex Court stated....
A person has, no doubt, a profound right not to be convicted of an offence which is not established by the evidential standard of proof beyond reasonable doubt. Though this standard is a higher standard, there is, however, no absolute standard. What degree of probability amounts to "proof" is an exercise particular to each case. Referring to the interdependence of evidence and the confirmation of one piece of evidence by another, a learned author says {see "The Mathematics of Proof II": Glanville Williams, Criminal Law Review, 1979, by Sweet and Maxwell, p.340 (342)]: "The simple multiplication rule does not apply if the separate pieces of evidence are dependent. Two events are dependent when they tend to occur together, and the evidence of such events may also be said to be dependent. In a criminal case, different pieces of evidence directed to establishing that the defendant did the prohibited act with the specified state of mind are generally dependent. A junior may feel doubt whether to credit an alleged confession, and doubt whether to infer guilt from the fact that the defendant fled from justice. But since it is generally guilty rather than innocent people who make confessions, and guilty rather than innocent people who run away, the two doubts are not to be multiplied together. The one piece of evidence may confirm the other."
Doubts would be called reasonable if they are free from a zest Digitally signed by RICHA RICHA SHARMA SHARMA Date: 2020.07.28 13:34:02 +0530 Page 21 of 24 FIR No. 492/08 PS Jahangir Puri U/s.186/353/332/323/427/34 IPC State Vs. Mohd. Zahid & Ors.
for abstract speculation. Law cannot afford any favourite other than truth. To constitute reasonable doubt, it must be free from an overemotional response. Doubts must be actual and substantial doubts as to the guilt of the accused persons arising from the evidence, or from the lack of it, as opposed to mere vague apprehensions. A reasonable doubt is not an imaginary, trivial or a merely possible doubt, but a fair doubt based upon reason and common sense. It must grow out of the evidence in the case.
The concepts of probability, and the degrees of it, cannot obviously be expressed in terms of units to be mathematically enumerated as to how many of such units constitute proof beyond reasonable doubt. There is an unmistakable subjective element in the evaluation of the degrees of probability and the quantum of proof. Forensic probability must, in the last analysis, rest on a robust common sense and, ultimately, on the trained intuitions of the Judge. While the protection given by the criminal process to the accused persons is not to be eroded, at the same time, uninformed legitimization of trivialities would make a mockery of administration of criminal justice. This position was illuminatingly stated by Venkatachaliah, J. (as His Lordship then was) in State of U.P. v. Krishna Gopal (1988(4) SCC 302).
32. Thus, the burden to prove criminal act is obviously on the prosecution but the prosecution has failed to establish its case beyond Digitally signed RICHA by RICHA SHARMA SHARMA Date: 2020.07.28 13:34:09 +0530 Page 22 of 24 FIR No. 492/08 PS Jahangir Puri U/s.186/353/332/323/427/34 IPC State Vs. Mohd. Zahid & Ors.
every shadow of doubt. There should be a definite evidence in proving the prosecution case but there is not definite evidence on record against the accused persons to link them with the alleged crime. The identity of the accused persons has not been proved on record.
33. No doubt wrong acquittals are undesirable and shake the confidence of the people in judicial system, much worse, however, is the wrongful conviction of the innocent man. The consequences of conviction of innocent men are far more serious and its reverberation would be felt by an innocent all his life in a civilized society, therefore, it is the duty of the court to avoid any wrongful conviction and to grant benefit of doubt where ever the need arises. If two views are possible, one favouring the accused and the other against him, the benefit of doubt must be given to the accused and in the instant case, prosecution has failed to prove its case against accused beyond reasonable doubt.
34. At this stage, court further deems it fit to state that it is a settled principle of criminal jurisprudence that culpability cannot be established on surmises and conjectures but it should rest on cogent, reliable and clinching evidence, dispelling every doubt and bulwarking the fact that in all possibility, the offence must have been committed by the accused. In the present case, it is pellucid that the case of the prosecution suffers from several glaring loopholes as there are numerous inconsistencies in the testimony of the witnesses examined Digitally signed RICHA by RICHA SHARMA SHARMA Date: 2020.07.28 13:34:18 +0530 Page 23 of 24 FIR No. 492/08 PS Jahangir Puri U/s.186/353/332/323/427/34 IPC State Vs. Mohd. Zahid & Ors.
by prosecution.
35. Therefore, in light of the above observations and finding, it can be safely culled out that case of the prosecution suffers from several glaring loopholes as there are numerous inconsistencies in the testimony of the witnesses examined by prosecution.
36. Hence, in view of the aforesaid comprehensive discussion, the prosecution has miserably failed to prove the charges levelled against the accused persons and therefore, the accused persons namely Mohd. Zahid, Sunil Kumar and Mohd. Israel are hereby acquitted from the offences u/s 186/353/332/323/427/34 IPC.
37. File be consigned to record room after due compliance.
Digitally signed by RICHA SHARMA RICHA Date:
SHARMA 2020.07.28
13:34:27
+0530
(Richa Sharma)
Metropolitan Magistrate
North District Court/Delhi
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