Delhi District Court
State vs Munna & Ors. on 9 September, 2012
IN THE COURT OF SHRI BHUPINDER SINGH:
METROPOLITAN MAGISTRATE: DELHI
State V/s Munna & Ors.
FIR No. 852/01
PS: Saraswati Vihar
U/s. 325/34 IPC
JUDGMENT
A) The date of commission : 16.11.2001
of offence.
C) Name of the complainant : Mohd. Shafiq Qureshi
S/o. Sh. Dulhajaan
D) Name of the accused : 1. Munna S/o Mohd. Shafiq
2. Salim S/o Mohd. Shafiq
3. Shakur @ Pappu S/o Mohd. Shafiq
4. Hazi Sayyed S/o Mohd. Shafiq
E) Offence complained of : U/s. 325/34 IPC
F) The plea of accused : Pleaded not guilty.
G) Final order : Acquitted
H) The date of such order : 10/09/2012
Date of Institution : 03/07/2002
Judgment reserved on : Not reserved
Judgment announced on : 10/09/2012
State V/s Munna & Ors. FIR No. 852/01 PS: Saraswati Vihar Page No. 1/15
THE BRIEF REASON FOR THE JUDGMENT:-
1. In brief, the case of the prosecution is that on 16/11/01 at 11:15 am at House No.H-584, JJ Colony, Shakurpur, Delhi, within the jurisdiction of PS Saraswati Vihar, all the four accused in furtherance of their common intention voluntarily caused grievous injuries to the complainant Shafiq Qureshi @ Babu Qureshi by means of Iron rod and thereby committed offence punishable U/s 325/34 IPC.
2. After completion of investigation challan was filed by the police U/s. 325/34 IPC of which cognizance was taken by the Ld. Predecessor of this court.
3. Compliance of Sec.207 was carried out and complete set of documents was supplied to the accused.
4. Vide order dated 11.06.2003 charge was framed against the accused persons for trial of offences U/s. 323/341 IPC by the Ld. Predecessor to which accused persons pleaded not guilty and claimed trial. Thereafter matter was fixed for prosecution evidence.
State V/s Munna & Ors. FIR No. 852/01 PS: Saraswati Vihar Page No. 2/155. Prosecution has examined 6 witnesses to prove guilt of accused persons. A brief scrutiny of the examined witnesses is as below.
PW-1 Dr. Kanti Sham Sukha deposed that he examined the injured Babbu Qureshi and perused the documents and X-Ray report and found fracture of left ulnar bone and opined the injury as grievous and proved his report as Ex. PW-1/A. PW-2 Ct. Ram Avtar deposed that after receipt of Tehrir he got registered the case FIR and he also proved the seizure memo of iron saria as Ex. PW-1/A. PW-3 HC Jaswant has proved the copy of FIR as Ex. PW-3/A and his endorsement on rukka as Ex. PW-3/B. PW-4 Mohd. Shafiq Qureshi deposed that he do not remember the exact date, but it was about 6 years ago and it was of summer season. He deposed that he was present at his shop and at about 10 am in the morning, one Pappu came to his shop on the pretext to have some conversation with him. Further he deposed that meanwhile Shahid and Saleem also came there with iron rods and attacked him. He deposed that Munna was already present at his shop and accompanied Shahid and Saleem in assaulting him. Further he deposed that he somehow managed to escape himself from the clutches of accused persons and went to the hospital at Rani Bagh, Fountain Chowk. He deposed that police met him in the hospital and recorded his statement Ex.
State V/s Munna & Ors. FIR No. 852/01 PS: Saraswati Vihar Page No. 3/15PW-4/A. He further deposed that site plan Ex. PW-4/B was also prepared at his instance. This witness has correctly identified all the accused persons in the court during his deposition.
This witness was cross examined by Sh. J.S. Arya Ld. Counsel for the accused where he deposed that first of all Pappu came to his shop between 10 to 11am and just after 15 minutes accused Munna came there and just after 10 minutes, remaining accused persons also came there. He further deposed that he had mentioned in his complaint to the police that first of all Pappu came to his shop and the accused persons came at three intervals (confronted with Ex. PW-4/A where it is not so recorded). He deposed that many public persons gathered there but he did not tell name of any public person to the police. He deposed that Munna did not assault him. He did not call the police from the spot. He denied the suggestion that no such incident occurred and he did not went to Govt. Hospital. Further he deposed that two police personnel came to him at the hospital at about 12/12.30pm and left together after 15 minutes from the hospital, but he do not know their name. He remained the hospital for about 3-4 days during which police officials came to him for inquiry. Police also visited him at his residence for inquiry. He denied the suggestion that accused persons not assaulted him or that he falsely implicated them in collusion with the police in the present case as he owed Rs.50,000/- to accused Pappu.
PW-5 SI Ram Kishan IO of the present case and has detailed about the steps taken by him during the course of investigation. He proved the rukka as Ex. PW-5/A, site plan as Ex. PW-4/B, and arrest memos as Ex.PW-5/B,C,D and E, personal search memos as Ex.PW-5/F, G, H and I and seizure memo of iron rod as Ex. PW-1/A. State V/s Munna & Ors. FIR No. 852/01 PS: Saraswati Vihar Page No. 4/15 This witness was cross examined by Sh. J.S. Arya Ld. Counsel for the accused Munna where he deposed that he do not remember when he recorded the statement of complainant at the hospital. He deposed that complainant was discharged from the hospital and then they reached at the spot and he do not remember the time. He further deposed that the spot was a residential place. He further deposed that he did not join any public person in the investigation at the spot. Further he deposed that he did not ask the public person to join the investigation at the time of recovery of rod.
PW-6 Ct. Subhash deposed that he has joined the investigation of this case with the IO ASI Ram Kishan. He proved the arrest memo and personal search memo of accused Salim as Ex. PW-5/B and F, arrest and personal search memo of Shakur as Ex. PW-5/C and G, arrest and personal search memo of Haxi Sayyed as Ex. PW-5/D and H, arrest and personal search memo of Munna as Ex. PW-5/E and I. This witness was cross examined by Sh. J.S. Arya Ld. Counsel for the accused Munna where he deposed that from PS he along with the IO reached directly to the residence of accused persons H-930 Shakurpur, Colony. They remained at the place at about 1 hours. Further he deposed that he cannot tell the time when they reached at the residence of the accused persons. He further deposed that he did not know accused Munna previously. He further deposed that he cannot tell the chronology of the arrest of the accused persons. He further deposed that he cannot tell to whom the information regarding the arrest of the accused persons was given by the IO. He further deposed that he cannot tell whether the accused was released at the PS or at the spot as he do not remember.
State V/s Munna & Ors. FIR No. 852/01 PS: Saraswati Vihar Page No. 5/156. P.E. was closed and statement of accused persons U/s. 281/313 Cr.P.C was recorded to which the accused persons denied all the allegations leveled against them and preferred to lead D.E. Sh. Gurfan Ali was examined as DW-1.
DW-1 Gufran deposed that he is running the business of sewing the cloths at tenanted premises at H-583, Shakurpur, Delhi. He deposed that Complainant Shafik @ Babbu and accused Shakur @ Pappu are the neighborers near his tenanted premise of H-583, Shakurpur, Delhi. Accused Shakur @ Pappu had given Rs.50,000/- as debt to Shafiq @ Babbu. Further he deposed that on 16/11/01 at about 10:30am some verbal arguments took place between Shakur and Shafik for the payment of above said amount and nothing was happened except verbal arguments and only Shakur @ Pappu and Shafik @ Babbu were present there.
This witness was cross examined by Ld. APP for state where he deposed that he used to open his shop at about 8 / 8:30am. Further he deposed that the verbal arguments between the Shafik and Shakur @ Pappu took place. He deposed that he had not made any complaint to any authority that the accused persons are falsely implicated in this case. He further deposed that Police reached at the spot at about 10:30am. He Vol. deposed that accused Shakur @ Pappu had dialed at 100 number upon which police reached at the spot. Further he deposed that he had not made any complaint to the police officials who reached at the spot that nothing was happened there. He denied the suggestion that he was not present at the shop. He further denied the suggestion that the accused persons entered in the shop of State V/s Munna & Ors. FIR No. 852/01 PS: Saraswati Vihar Page No. 6/15 the complainant and gave beatings to him. He further denied the suggestion that he is deposing falsely at the instance of accused persons. He further denied the suggestion that he had not seen anything.
7. D.E was closed on 19.10.2011 and thereafter matter was fixed for final arguments.
8. It is submitted by Ld. APP that the prosecution has been able to prove the guilt of the accused persons beyond reasonable doubt. It is further stated that the testimonies of the prosecution witnesses are reliable and trustworthy which have been able to bring home the guilt of the accused persons beyond the reasonable doubt.
9. It is submitted by Ld. Defence Counsel that the accused persons have been falsely implicated by the complainant. It is further submitted by Ld. Defence Counsel that there are several inconsistencies and loopholes in the story of prosecution. He further submits that there are reasonable doubts in the testimonies of the prosecution witnesses rendering them to be unreliable and unbelievable.
10. I have heard the arguments advanced by Ld. APP for the State as well as Ld. Counsel for the accused persons and have gone through the evidence and the material available on record.
State V/s Munna & Ors. FIR No. 852/01 PS: Saraswati Vihar Page No. 7/1511. It is well settled principal of law that the prosecution has to prove the case beyond reasonable doubt and has to stand upon on its own legs. The prosecution also cannot draw any strength from the case of the accused howsoever weak it may be. It is also well settled proposition of criminal law that the accused has a profound right not to be convicted for an offence which is not established by the evidential standard of proof beyond reasonable doubt. It is also well settled principle of law that in a criminal trial the burden of proof always rests upon the prosecution and the same never shifts onto the accused.
12. In a recent case reported as Paramjeet Singh @ Pamma Vs. State of Uttarakhand, 2011CRI.L.J.663, Supreme Court, Hon'ble Mr. Justice Dr. B. S. Chauhan, speaking for the Bench, held in para no. 11 and 12 as under:
"11. A criminal trial is not a fairy tale wherein one is free to give flight to one's imagination or fantasy. Crime is an event in real life and is the product of an interplay between different human emotions. In arriving at a conclusion about the guilt of the accused charged with commission of a crime, the court has to judge the evidence by the yardstick of probabilities, intrinsic worth and the animus of witnesses. Every case, in the final analysis, would have to depend upon its own facts. The court must bear in mind that "human nature is too willing, when faced with brutal crimes, to spin stories out of strong suspicions." Though an offence may be gruesome and revolt the human conscience, an accused can be convicted only on legal evidence and not on surmises and conjecture. The law does not permit the court to punish the accused on the basis of a moral conviction or State V/s Munna & Ors. FIR No. 852/01 PS: Saraswati Vihar Page No. 8/15 suspicion alone. "The burden of proof in a criminal trial never shifts and it is always the burden of the prosecution to prove its case beyond reasonable doubt on the basis of acceptable evidence." In fact, it is a settled principle of criminal jurisprudence that the more serious the offence, the stricter the degree of proof required, since a higher degree of assurance is required to convict the accused. The fact that the offence was committed in a very cruel and revolting manner may in itself be a reason for scrutinizing the evidence more closely, lest the shocking nature of the crime induce an instinctive reaction against dispassionate judicial scrutiny of the facts and law. (Vide: Kashmira Singh Vs. State of Madhya Pradesh, AIR 1952 SC 159; State of Punjab Vs. Jagir Singh Baljit Singh & Anr. AIR 1973 SC 2407; Shankarlal Gyarasilal Dixit Vs. State of Maharashtra, AIR 1981 SC 765; Mousam Singha Roy & Ors. Vs. State of West Bengal, (2003) 12 SCC 377; and Aloke Nath Dutta & Ors. Vs. State of West Bengal, (2007) 12 SCC 230).
13. In Sarwan Sigh Rattan Singh Vs. State of Punjab, AIR 1957 SC 637, this court observed (Para12) :
"Considered as a whole the prosecution story may be true; but between 'may be true' and 'must be true' there is inevitably a long distance to travel and the whole of this distance must be covered by legal, reliable and unimpeachable evidence (before an accused can be convicted)."
14. After going through the material on record, including the testimonies of the witnesses examined by the prosecution as well as the documents relied upon I do not find the story of the prosecution as reliable.
State V/s Munna & Ors. FIR No. 852/01 PS: Saraswati Vihar Page No. 9/1515. No motive has been attributed towards the alleged conduct of the accused persons. The complainant in his testimony has just deposed that the accused persons assaulted him but no reason whatsoever has been given either by him or by the prosecution for the same. The case property i.e. the iron rods by which the complainant was allegedly beaten by the accused persons have not been shown to the complainant during his testimony. The same were exhibited as P - 1 and P - 2 and were identified by PW-5 IO SI Ram Krishan. When the same were shown to him they were in unsealed condition and accordingly, it is very unsafe to rely on them. This casts serious doubts upon the entire seizure proceedings. The possibility of tampering and manipulation of the case property cannot be ruled out entirely. In these circumstances, benefit of doubt is to be given to the accused.
In Ramji Singh v. State of Haryana (P&H) 2007(3) R.C.R. (Crimi- nal) 452 the accused was acquitted as when the case property was pro- duced in the Court, the seal was broken and indecipherable. Similarly, in Channa Ram @ Maiya v. State of Haryana, (P&H) 2004(4) R.C.R. (Criminal) 440 and Didar Singh v. State of Punjab, (P&H) 1989(2) R.C.R. (Criminal) 195 the accused was acquitted by the Hon'ble High Court as when the case property was produced in the Court it was found that the same was not sealed.
16. The incident is reported to have occurred at about 11:15 am, however, no explanation has been put forward by the prosecution for delay in conducting State V/s Munna & Ors. FIR No. 852/01 PS: Saraswati Vihar Page No. 10/15 the M.L.C of the complainant/injured. No reasons have been put forward by the prosecution as to why there was delay in calling the police since as per DD No. 42 B there was a call to the PCR at 06:45 pm, almost 7 hours after the alleged incident. In ordinary course, the complainant/injured or his relatives/friends would inform the police immediately unless there are certain circumstances not to do so. But such circumstances has to be explained which is missing in this case.
It was held in Hem Raj v. State of Haryana AIR 2005 SC 2110, "The fact that no independent witnesses though available, was examined and not even an explanation was sought to be given for not examining such witness is a serious infirmity in the prosecution case. Amongst the independent witnesses one who was very much in the known of the things from the beginning was not examined by the prosecution. Non examination of independent witness by itself may not give rise to adverse inference against the prosecution. However, when the evidence of the alleged eye witnesses raise serious doubts on the point of their presence at the time of actual occurrence, the unexplained omission to examine the independent witness would assume significance".
Also in Roop Chand Vs. State of Haryana 1989 (2) RCR 504 it was held that where the IO has failed to even note down the names and addresses of the persons who have refused to join as public witnesses, couple with the fact that no action was taken against them, the case is rendered doubtful.
17. Statement of the complainant which is Ex. PW-4/A, on the basis of which the FIR was registered mentions the place of incident as H 584 J.J. Colony, Shakurpur, Delhi whereas site plan Ex. PW-4/B shows place of State V/s Munna & Ors. FIR No. 852/01 PS: Saraswati Vihar Page No. 11/15 incident as H. No. 586. Therefore it casts doubt as to the place of incident. In his testimony PW-4/complainant has deposed the place of incident being his shop but nothing of such sort has come in story of the prosecution and location/address of shop has not been mentioned.
18. As per the injury report which is Ex. PW-1/A the complainant was brought to the hospital by his brother Mulle Hussain Qureshi but he was not cited as a witness so as to corroborate the testimony of the complainant. No reason has been cited as to why despite being the injuries grievous in nature, the complainant/injured was taken for medical assistance after a long gap of 7 hours and that too in a Private hospital and not to a Government hospital. It is pertinent to mention here that the colony in which the complainant is residing is J.J. Colony whereas the hospital is Private one, located in a posh colony. Without there being any special reason the conduct of the complainant after the alleged incident is not natural.
19. In his cross examination the complainant has deposed that he remained in the hospital for 3/4 days and the police officials came to him for inquiry. If this statement of the complainant is read in the light of the statement of IO SI Ram Krishan then there appears severe contradiction in their testimonies. IO SI Ram Krishan has deposed that the iron rod was taken into possession vide seizure memo Ex. PW-1/A at the instance of the complainant. The same is dated 16.11.2001 i.e the day of incident. The seizure memo does not bear signature of the complainant and accordingly it falsifies the claim of State V/s Munna & Ors. FIR No. 852/01 PS: Saraswati Vihar Page No. 12/15 the IO. The IO has also deposed that he along with the injured reached the spot and prepared the site plan at the instance of the complainant which is already Ex. PW-4/B. Same is also not tenable in the light of the statement of the complainant that he was in the hospital for about 3/4 days. There is nothing on record which could suggest the day on which the complainant/injured was discharged from the hospital.
20. In view of the above the whole story of the prosecution has come under the shadow of doubt, benefit of which must go to the accused. The whole incident remains unproved. The testimonies of the PWs in particular PW-4 do not inspire confidence and it will be unsafe to rely upon him. Thus the allegations of the accused wrongfully restraining the complainant and causing hurt on his person remains unproved.
21. It is cardinal principle of criminal jurisprudence that an accused is presumed to be innocent. The burden lies on the prosecution to prove the guilt of accused beyond reasonable doubt. The prosecution is under a legal obligation to prove each and every ingredient of offence beyond any doubt, unless otherwise so provided by any statute. This general burden never shifts, it always rests on the prosecution. (Daya Ram v. State of Haryana, (P&H) (DB) ,1997(1) R.C.R.(Criminal) 662).
State V/s Munna & Ors. FIR No. 852/01 PS: Saraswati Vihar Page No. 13/1522. 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 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., (SC) 1976 A.I.R. (SC) 966 that while prosecution 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., (SC) 1990(3) S.C.C. 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, (SC) 2005 Cri.L.J. 2621 and Jarnail Singh v. State of Punjab, (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. (AIR 1962 SC 605 relied). Accused is not expected to prove his innocence to the hilt. If prosecution story is doubtful, benefit of doubt must go to the accused.
23. Prosecution is under legal obligation to prove each and every ingredient of the offence alleged against the accused beyond any reasonable doubt. Suspicion how so ever strong it may be, cannot replace the standard of proof required to establish the guilt of the accused. In the present case, the prosecution has miserably failed to discharge its onus. The evidence State V/s Munna & Ors. FIR No. 852/01 PS: Saraswati Vihar Page No. 14/15 available on record is not sufficient to substantiate the guilt of the accused persons. Accordingly all the four the accused deserve acquittal.
24. It is ordered accordingly.
(Bhupinder Singh) Metropolitan Magistrate Rohini Courts : Delhi Announced in the open court on September 09th, 2012.
It is certified that this judgment contains 15 pages and each page is signed by me.
(Bhupinder Singh) Metropolitan Magistrate Rohini Courts : Delhi Date: 09/09/2012 State V/s Munna & Ors. FIR No. 852/01 PS: Saraswati Vihar Page No. 15/15