Delhi District Court
State vs . Javed & Ors. on 14 July, 2020
IN THE COURT OF SH. GAJENDER SINGH NAGAR, ACMM-02,
CENTRAL DISTRICT, TIS HAZARI COURT,DELHI
STATE Vs. Javed & Ors.
FIR No. 73/11
PS: Hauz Qazi
U/S: 186/332/353/34 IPC
JUDGMENT
Case ID no. : 298773/16
Date of commission of offence : In the intervening night of
02-03.09.2011
Date of institution of the case : 15.05.2012
Name of the complainant : ASI Shri Kishan
Name of accused and address : (1)Javed
S/o Sh. Iqbal Ahmad
R/o H.No. 3107, Gali Vakil
Wali, Kucha Pandit, Lal
Kuan, Delhi.
(2)Parvez Ahmed
S/o Sh. Iqbal Ahmad
R/o H.No. 3107, Gali Vakil
Wali, Kucha Pandit, Lal
Kuan, Delhi.
(3)Naved
S/o Sh. Iqbal Ahmad
R/o H.No. 3107, Gali Vakil
Wali, Kucha Pandit, Lal
Kuan, Delhi.
Offence complained of or proved : U/s 186/332/353/34 IPC
FIR No. 73/11, State Vs Javed & Ors. PS: Hauz Qazi Page 1/18
Plea of the accused : Pleaded not guilty
Final order : Convicted
Date reserved for judgment : 14.07.2020
Date of judgment : 14.07.2020
BRIEF STATEMENT OF THE REASON FOR DECISION:
1. This is the prosecution of accused persons pursuant to charge sheet filed by PS Hauz Qazi U/s 186/332/353/34 IPC subsequent to the investigation carried out by them in FIR No. 73/2011.
2. Brief facts of the case are that in the intervening night of 02- 03.09.2011 at 12:30 am a DD Entry bearing no. 2A was registered at P.S. Hauz Qazi received from PCR wherein it was stated that certain persons are playing DJ in Gali Vakeel Wali, Kucha Pandit, Chawri Bazar, Delhi. The said DD was marked to complainant ASI Shri Kishan who reached the spot on his scooter alongwith Ct. Rajesh. On reaching the spot they found that DJ was playing outside House No. 3107 and a number of boys were there. On directions of the complainant, DJ was stopped and some of the boys who were making ruckus there were disbursed. In the meantime, accused persons namely Parvez and Javed came to the spot and asked the boys still present there why they had stopped DJ. Thereafter, accused Parvez again started playing the DJ at a louder noise, on that complainant asked Parvez to stop the DJ as call at 100 number has been made and DJ cannot be played after 10:00 pm. However, Parvez did not pay heed to the request of ASI Shri Kishan, on that complainant ASI Shri Kishan directed Ct. Rajesh to bring a rickshaw for taking away the DJ system. When Ct. Rajesh left for bringing some rickshaw, accused persons namely Parvez and Javed alongwith their two accomplish who were called by them started beating the complainant. They hold shirt of the complainant due to which his uniform was torn. Thereafter, accused Parvez hit the complainant on his face with a punch. The other accused persons started FIR No. 73/11, State Vs Javed & Ors. PS: Hauz Qazi Page 2/18 hitting the complainant with legs and fists. In the meantime, Ct. Rajesh reached the spot and raised alarm due to which accused persons fled away from the spot alongwith DJ system. Accordingly, after the investigation, police filed the present charge sheet against the accused persons (who were arrested) for commission of offences punishable U/s 186/332/353/34 of IPC.
3. Complete set of charge sheet and other documents were supplied to the accused persons. After hearing arguments, charges for offences punishable under section 186/332/353/34 of IPC were framed against the accused persons to which they pleaded not guilty and claimed trial.
MATERIAL EVIDENCE IN BRIEF:
4. A total of 11 witnesses have been examined by the prosecution to bring home the guilt of accused persons.
5. PW-1 Ct. Rajesh deposed that on 03.09.2011 he alongwith ASI Shri Kishan went to Kucha Pandit, Gali Vakeel Wali, Hauz Qazi, Delhi where they found that DJ was being played and around 10-12 boys were dancing on the same. Since it was 12:30 am, ASI Shri Kishan asked the boys to stop, on that DJ was switched off by the said boys. Thereafter, ASI Shri Kishan instructed this witness to fetch a rickshaw to take away the DJ system, thus he left the spot for fetching a rickshaw. When this witness came back, he saw that blood was oozing out from the face of ASI Shri Kishan and two boys had surrounded him, on that he raised hue and cry. On listening his voice those two boys ran away from the spot. This witness correctly identified accused persons namely Javed and Naved who were present in the Court. It is stated that he made a call in the police station and requested for reinforcement. Thereafter, 3-4 other police officers reached the spot. Thereafter, he took ASI Shri Kishan to FIR No. 73/11, State Vs Javed & Ors. PS: Hauz Qazi Page 3/18 the hospital. It is stated that HC Murli came to JPN Hospital and recorded statement of ASI Shri Kishan which is Ex. PW-1/A, on which rukka was prepared and handed over to this witness, on that he got FIR registered. He came back to the spot and handed over copy of FIR alongwith original rukka to HC Murli. This witness was cross-examined by Ld. APP for the State as he was resiling from his earlier statement. In his cross- examination by Ld. APP for the State, it is accepted by this witness that when ASI Shri Kishan instructed him to fetch the rickshaw, accused Parvez alongwith his brother Javed had again started playing the DJ. It is accepted by him that the said accused persons called two more boys to the spot and all the four of them had quarreled with ASI Shri Kishan and injured him. It is stated by him that he know only two of them i.e. accused persons namely Parvez and Javed. He identified both of them in the Court. It is accepted by him that HC Murli after coming at the hospital first obtained MLC of ASI Shri Kishan and then recorded his statement. It is accepted by this witness that he was taken to the spot by SI Sakir Khan and at his instance site plan, Ex. PW-1/B was prepared. It is accepted by him that HC Murli handed over the pullanda and sample seal to IO (SI Sakir Khan) in his presence and the same were seized vide memo, Ex. PW-1/C. It is denied by him that he is deposing falsely qua identity of accused Naved. In his cross-examination on behalf of accused persons, it is accepted by him that alleged quarrel had taken place in his absence i.e. when he had gone to fetch a rickshaw. It is denied by him that accused persons were not quarreling with ASI Shri Kishan when he came back, though it is voluntarily stated by him that accused persons namely Parvez and Javed were grappling with ASI Shri Kishan. It is stated by him that he knew accused persons namely Parvez and Javed prior to the incident.
6. PW-2 retired SI Shri Kishan i.e. complainant deposed that in the intervening night of 02-03.09.2011 he was on emergency duty at P.S. Hauz Qazi. Vide DD No. 2A dated 03.09.2011, attested copy of FIR No. 73/11, State Vs Javed & Ors. PS: Hauz Qazi Page 4/18 which is Ex. PW-2/A, he received a call around 12:30 pm that at Kucha Pandit somebody was playing DJ. On that he alongwith Ct. Rajesh went to the spot where they found that outside House No. 3107 DJ was being played and many public persons were gathered at the spot and were making noise. It is stated that he requested those persons to not to make noise and not to play DJ. He got the DJ stopped. On that public went away. However, a few boys remained at the spot. In the meantime the accused persons namely Javed and Parvez came from inside of the gali at the spot and asked him why he had stopped the DJ and how he can do so. This witness was asked to identify the accused persons in the Court. This witness pointed towards accused Parvez as Javed and accused Javed as Parvez. In the same breath he again correctly identified the accused persons. It was observed by the Court that before the witness correctly identified the accused persons, accused Parvez has disclosed that he is Parvez and not Javed and also pointed out towards another accused as Javed. It is voluntarily stated by the witness that he knew accused Parvez prior to the incident as he has been arrested by him on previous occasions U/s 107/151 Cr.P.C. It is stated that accused persons again started playing DJ. It is stated that accused persons called two more persons from inside the gali. When they did not stop the DJ this witness instructed Ct. Rajesh to fetch a rickshaw. It is stated that when Ct. Rajesh left the spot, accused persons namely Javed and Parvez abused this witness. Thereafter, accused Javed held him by shirt and torn the same. Accused Parvez gave him fist blow by some wooden object which he was wearing in his finger. It is stated that the other two associates of the accused persons have also slapped him and gave kicks to him. It is stated that in the meantime, Ct. Rajesh came to the spot and on seeing the incident he raised hue and cry, on that accused persons ran away from the spot. They had also taken away the DJ system. It is stated that Ct. Rajesh took him to the hospital. It is stated that HC Murli came to the hospital and recorded his statement which is already Ex. PW-1/A bearing his signatures at Point-A. It is stated that on 04.09.2011 he again joined investigation. The investigation was handed over to SI Mohd. Sakir Khan FIR No. 73/11, State Vs Javed & Ors. PS: Hauz Qazi Page 5/18 by that time. He alongwith IO SI Mohd. Sakir Khan, Ct. Prakash and Ct. Narender went to House No. 3107, Kucha Pandit where they found accused persons namely Javed, Parvez and Naved. All of them were arrested at the instance of this witness vide arrest memos Ex. PW-2/B, Ex. PW-2/C and Ex. PW-2/D. Personal search of accused persons were conducted vide memos Ex. PW-2/E, Ex. PW-2/F and Ex. PW-2/G. It is stated that the punch in question was seized by IO from possession of accused persons vide memo Ex. PW-2/H. At this stage, this witness was asked to identify accused Naved. This witness pointed out towards third accused as accused Naved. At this stage, it is stated by accused that he is not Naved, but Javed. At this point, it was observed by the Court that earlier accused Parvez had pointed towards accused Naved as Javed. This witness correctly identified the case property i.e. iron/ brass punch, his police uniform shirt two buttons of which were missing and there was blood stains on the same. The same are exhibited as Ex. P-1 and Ex. P- 2, respectively. This witness also correctly identified clothes of accused Javed which are Ex. P-3. In his cross-examination on behalf of accused persons it is stated by this witness that there was a heavy crowd on the spot when he reached there as about 150-200 persons were present there. It is stated by him that he has not apprised the IO that accused persons namely Javed and Parvez had abused him. It is stated that accused Parvez had hit him not with a wooden object, but with an iron object which he was wearing on his finger. It is stated by him that it might be a typographical error in his previous statement that "accused Parvez had hit him with some wooden object". It is denied by him that he was under influence of liquor on the relevant day. It is denied by him that he suffered injuries in question by falling on the ground under the influence of liquor. It is stated that PCR officials had taken him to the hospital from the spot. It is voluntarily stated that Ct. Rajesh was also with him. He could not tell who had taken his scooter from the spot after the incident. It is stated that IO had not recorded statement of any PCR officials in his presence. He could not tell whether his signatures, or thumb impression was taken on MLC in the hospital, or not. It is stated that he visited the FIR No. 73/11, State Vs Javed & Ors. PS: Hauz Qazi Page 6/18 house of the accused persons on 04.09.2011 alongwith IO SI Mohd. Sakir Khan. It is stated that two constables were also with them. It is stated that he did not enter into the house of the accused persons. It is stated that punch was not recovered in his presence. It is voluntarily stated that however the punch was brought outside after recovery and it was shown to him. He could not tell whether IO had made any DD Entry before leaving for the house of the accused persons. It is stated that no lady police official was with them. It is denied by him that he has falsely implicated the accused persons as they refused to pay him illegal protection money for running their small shop.
7. PW-3 HC Raman Dass exhibited on record copy of FIR as Ex. PW-3/A (OSR), his endorsement on rukka as Ex. PW-3/B. He also exhibited DD No. 6A, DD No. 7A and DD No. 8A, all dated 03.09.2011 as Ex. PW-3/C (OSR) (Colly).
8. PW-4 Dr. Ravinder Kumar (mistakenly written as PW-3) exhibited on record MLC No. 137347 dated 03.09.2011 as Ex. PW-3/A. It is deposed by him that he has seen Dr. Naveen, J.R. signing and writing the said MLC.
9. PW-5 Ct. Narender deposed that on 04.09.2011 he alongwith IO SI Mohd. Sakir Khan, Ct. Prakash Chand and ASI Shri Kishan went to the house of the accused persons. From their house accused persons were apprehended in his presence. It is stated that since the accused persons were trying to fled away from the spot, due to which they sustained some minor injuries. It is stated that at the instance of accused Parvez Ahmed, one punch was recovered. This witness correctly identified accused persons namely Javed, Parvez Ahmed and Naved in the Court. In his cross-examination on behalf of accused persons, it is admitted by him that no neighbour was asked to join the raiding party prior to arrest of accused persons. It is stated by him that the FIR No. 73/11, State Vs Javed & Ors. PS: Hauz Qazi Page 7/18 accused persons were arrested at their House No. 3107, Gali Vakeel Wali, Kucha Pandit, Delhi-110006. It is stated by him that the house of the accused persons was consisting ground floor and upper floors, however he could not tell the exact number of floors. It is stated by him that the punch was not recovered in his presence as he as well as Ct. Prakash were standing outside the room alongwith two other accused persons. It is stated that neither this witness, nor Ct. Prakash entered in the house alongwith IO and Parvez Ahmed at the time of recovery of punch, thus he could not tell from which place the punch was recovered.
10. PW-6 ASI Ramesh Chand exhibited entry at serial no.1668 dated 03.09.2011 in register no.19 as Ex. PW-6/A and entry at serial no.1670 dated 04.09.2011 as Ex. PW-6/B (OSR).
11. PW-7 HC Rajesh Kumar deposed that on 03.09.2011 he was working as Duty Officer and his duty hours were from 5:00 pm to 1:00 am. In the intervening night of 02-03.09.2011 at about 12:30 am he recorded DD No. 2A, copy of the same is already Ex. PW-2/A (OSR).
12. PW-8 ASI Murli Singh deposed that on receiving DD No. 7A dated 03.09.2011 qua quarrel at Gali Vakeel Wali, House No. 3107 he reached at the spot where he did not find any quarrel and injured person. On enquiry he came to know that ASI Shri Kishan was injured and had been shifted to JPN Hospital. Again on receiving DD No. 8A he reached at JPN Hospital and obtained MLC of injured. He also met ASI Shri Kishan. Doctors had stated that injured was fit for statement, on that he recorded statement of ASI Shri Kishan and prepared the rukka. The rukka is Ex. PW-8/A. It is stated that he handed over the rukka to Ct. Rajesh for registration of FIR. Thereafter, he seized clothes of injured ASI Shri Kishan and sample seal from Duty Officer Ct. Kailash Yadav vide seizure memo already Ex. PW-1/C. It is stated that thereafter, he returned back to the spot where he met Ct. Rajesh and SI Mohd. Sakir Khan. Thereafter, FIR No. 73/11, State Vs Javed & Ors. PS: Hauz Qazi Page 8/18 the case was marked to SI Mohd. Sakir Khan, hence he handed over the seized pullanda and seizure memo to IO. IO recorded his statement and discharged him. Opportunity was given to accused persons to cross- examine this witness, however they did not ask any question to him.
13. PW-9 retired ACP Ram Kumar deposed that he has made the complaint U/s 195 Cr.P.C. after receiving complaint from ASI Shri Kishan. He exhibited the said complaint as Ex. PW-9/A bearing his signatures at Point-A.
14. PW-10 SI Mohd. Sakir Khan deposed that on 03.09.2011 further investigation of the present case was marked to him. Thereafter, he alongwith Ct. Rajesh reached at the spot. At the spot he prepared the site plan at the instance of Ct. Rajesh. He made local enquiry qua accused persons, however they could not be apprehended. Thereafter, they returned to P.S. On 04.09.2011 at about 8:00 am he alongwith Ct. Narender, Ct. Prakash and ASI Shri Kishan again visited the spot where accused persons namely Parvez Ahmed, Javed and Naved were found sitting at the ground floor. All three of them were apprehended at the instance of ASI Shri Kishan. It is stated that after arresting the accused persons and conducting their personal search, they were taken to P.S. Thereafter, he enquired about the punch with the accused Parvez and same was recovered from House No. 3107 at the instance of accused Parvez. The punch was seized vide memo, already Ex. PW-2/H. It is stated that he deposited the case property in the maalkhana. He correctly identified the accused persons present in the Court. In his cross- examination on behalf of accused persons, it is stated by him that investigation of the case was handed over to him at about 4:00 am. It is stated that the accused persons had disclosed about the punch in the P.S. during interrogation. It is stated that the said disclosure was made by the accused persons on 04.09.2011 at about 11:00-11:30 am. It is stated by him that he first went to the spot at 8:00 am, arrested the accused persons FIR No. 73/11, State Vs Javed & Ors. PS: Hauz Qazi Page 9/18 and returned from the spot at about 10:45 am. He again left for the spot at about 11:30 am. It is stated that he had not made any site plan of the spot from where punch was recovered. It is stated by him that he had not obtained any search warrant before going to the house of accused persons to search the punch. It is stated that no police official was with him during such search. It is denied by him that the punch was planted by him on the accused persons.
15. PW-11 HC Prakash Chand deposed that on 04.09.2011 he joined investigation of the case with SI Mohd. Sakir Khan. It is stated that he alongwith SI Mohd. Sakir Khan, ASI Shri Kishan and Ct. Narender reached at Gali Vakeel Wali, House No. 3105. It is stated that ASI Shri Kishan identified those persons as accused persons who had beaten him, on that accused persons were apprehended. It is stated that accused persons apprised that they were playing DJ on the occasion of Eid. This witness correctly identified accused Parvez, however he could not tell which one of the accused is Javed and which one is Naved, though it is stated that both of them were present in the Court, however it is stated that he could not identify them by their names. It is stated that after arrest the accused persons were taken to the hospital. They were medically examined. They were brought back to their house. Accused Parvez got recovered a punch from his house which was seized vide memo already Ex. PW-2/H. In his cross-examination on behalf of accused persons, it is stated by him that accused persons were apprehended from House No. 3105. It is stated that they returned to House No. 3105 after medical examination of the accused persons. It is stated by him that IO had not asked any public persons, or neighbour to join the proceedings before or after apprehension of the accused persons. It is stated by him that accused persons were taken directly to the hospital and not to P.S. and they were brought back to the house from the hospital and not to P.S. This witness could not tell total floors of the property no. 3105. It is stated by him that he had gone inside the house of the accused persons. It is FIR No. 73/11, State Vs Javed & Ors. PS: Hauz Qazi Page 10/18 stated that all four of them (police party) had gone inside the house. It is stated that accused Parvez himself had taken out the punch.
16. No other witness was left to be examined hence, PE was closed.
THE DEFENCE :
17. Separate statements of accused persons namely Javed and Naved U/s 313 Cr.P.C recorded, wherein they pleaded innocence and stated that no such incident had happened. They were not present at the spot. It is stated that they have been falsely implicated in the present case. Separate statement of accused Parvez Ahmed U/s 313 Cr.P.C. also recorded, wherein he pleaded innocence and stated that he had been running a eating house from the ground floor of his property. The police officials used to create troubles in his business. It is stated that they used to take food from his shop without making payment. It is stated that the persons of the locality had told him that on the night the police officials were under the influence of liquor. They had lathi charged on the persons who were present there. All three accused persons opted to lead defence evidence. They examined one Mohd. Akram as DW-1.
18. DW-1 Mohd. Akram deposed that on 03.09.2011 in the evening hours he saw that public had gathered near house of accused persons bearing no. 3107, Gali Vakeel Wali, Kucha Pandit, Lal Kuan, Delhi-110006. On seeing the crowd he reached the spot and enquired. On enquiry he found that one police official namely Jai Kishan was in drunken condition. This witness asked the police official what had happened, however staff of the hotel apprised him that the police official is regularly taking meal from the restaurant without paying money, besides that he was also taking money every month from them. He also came to know that on this issue an altercation had taken place. It is stated that thereafter, police official namely Jai Kishan had left the spot. In his FIR No. 73/11, State Vs Javed & Ors. PS: Hauz Qazi Page 11/18 cross-examination by Ld. APP for the State, this witness could not tell the time of incident. He could not tell whether it was 8:00pm, or 9:00 pm when he reached the spot. He could not tell the name of the person from whom he had enquired.
19. No other witness was examined hence, DE was closed.
THE ARGUMENTS:
20. Ld. APP for state has argued that witnesses have supported the case of the prosecution. That on a combined reading of testimonies of prosecution witnesses, offences under section U/s 186/332/353/34 are proved beyond reasonable doubt against the accused persons.
21. On the other hand, Ld. Defence Counsel has pointed out a number of discrepancies in the testimony of the prosecution witnesses, it is pointed out by him that PW-1 has not stated exact place of incident and has only stated the gali. In his examination-in-chief he identified accused persons namely Javed and Naved and in cross-examination by Ld. APP for the State he only identified accused persons namely Parvez and Javed. It is pointed out that the site plan was not prepared at the instance of ASI Shri Kishan. It is argued that PW-2 retired SI Shri Kishan could not tell whether the punch whereby he was allegedly hit was of wood or made of metal. It is pointed out that shirt of the victim was not sent to FSL to ascertain if it was blood stained or not. It is argued that the complainant received injuries due to falling down on the road. It is pointed out that there are no signatures of victim ASI Shri Kishan on his MLC. It is pointed out that it is not clear who had brought the scooter of the victim from the spot. It is pointed out that there are contradictions qua persons who had taken the victim to the hospital. It is argued that no punch was recovered from the house of the accused persons as their house was never searched due to absence of lady constable in the police party and there was no permission with the police to search that house. It is stated that FIR No. 73/11, State Vs Javed & Ors. PS: Hauz Qazi Page 12/18 the shirt of the victim was not seized by the Doctor as there is no statement of Doctor that the shirt was seized by him. It is pointed out that there is clear contradictions in the testimonies of PW-10 and PW-11 as it was stated by PW-10 that after being arrested accused persons were taken to the P.S., however it was stated by PW-11 that after their arrest accused persons were directly taken to the hospital and were brought back from the hospital to the spot. It is argued that accused persons have been falsely implicated by the police in the present matter. It is argued that case of the prosecution is improbable, hence accused persons deserve acquittal in the present matter.
THE FINDINGS:
22. Arguments adduced by Ld. APP for State and Ld. Defence Counsel for the accused persons have been heard. Evidences and documents on record perused carefully.
23. The prosecution in this case had to prove the following :-
(a) Firstly, the injured ASI Shri Kishan was a public servant and was discharging his public function at the time of incident;
(b) Secondly, that the accused persons namely Javed, Parvez Ahmed and Naved in furtherance of their common intention had voluntarily obstructed complainant ASI Shri Kishan while he was discharging his public function;
(c) Thirdly, the accused persons namely Javed, Parvez Ahmed and Naved in furtherance of their common intention had assaulted and used criminal force against complainant ASI Shri Kishan to deter him from discharging his public function;
(d) Fourthly, in doing so accused persons namely Javed, Parvez Ahmed and Naved in furtherance of their common intention inflicted injuries to the complainant ASI Shri Kishan.FIR No. 73/11, State Vs Javed & Ors. PS: Hauz Qazi Page 13/18
24. In the present matter, though there are a few contradictions in the case of the prosecution of the testimonies of the witnesses, however the case of the prosecution appears to be truthful due to the following reasons :-
(i) In the present matter, there is a complaint U/s 195 Cr.P.C proved on record as PW9/A, which was made by ACP qua incident happened with ASI Shri Kishan. From this complaint its proved that ASI Shri Kishan was an employee of Delhi Police i.e a public servant, further this fact has not been controverted by the defence.
(ii) DD No. 2A qua playing of DJ was registered at P.S. at 12:30 am. It is also written in the DD that on the said DD ASI Shri Kishan alongwith Ct. Rajesh left the PS for attending the complaint. Thus, presence of complainant and Ct. Rajesh at the spot is proved. It is also proved that they reached the spot in their capacity as public servant and in order to execute public duty i.e maintaining law and order by ensuring closer of DJ which was creating nuisance at late hours.
(iii) In his description to the Doctor at the time of preparation of MLC ASI Shri Kishan had categorically stated that he was assaulted by some persons. Thus, from the very first instance, ASI Shri Kishan is attributing his injuries to the assault done by some persons. Further, DD No. 6A, Ex. PW-3/C has also been proved on record which was recorded at 1:05 am wherein it is mentioned that ASI Shri Kishan has been assaulted by some boys. Again, there is DD No. 7A recorded at 1:22 am which was made on the basis of information received from PCR wherein it is stated that accused persons namely Javed and Parvez had assaulted a constable of P.S. Hauz Qazi. Thus, from the very first instance i.e. immediately after the incident, PCR call was made, victim was taken to the FIR No. 73/11, State Vs Javed & Ors. PS: Hauz Qazi Page 14/18 hospital, DD Entries were recorded and in all of them it has been alleged that complainant was assaulted by some boys. In DD No. 8A it is stated that accused persons namely Parvez and Javed had assaulted the complainant.
(iv) It is also clear from the testimony of the complainant that he was taken to the hospital in PCR Van and Ct. Rajesh was accompanying him i.e. why at the place of the name of the person who brought the patient, name of Ct. Rajesh was mentioned. Ct. Rajesh has also stated that he has gone to the hospital alongwith the complainant.
(v) The injuries sustained by the complainant are also co-related with the description of attack stated by him as he had CLW over left eyebrow, swelling below left eye, pain and swelling in the nose, bleeding from the nose, pain and swelling on the occipital reason.
(vi) From the presence of DD No. 2A, 6A, 7A, 8A and MLC of the victim it is proved that the injuries were sustained by the victim, while he went to Gali Vakeel Wali, Kucha Pandit to attend the complaint of playing of DJ by some boys, it is also established that he was attacked by accused Parvez, Javed and others.
(vii) In the very first complaint made by the complainant, it was stated that accused Parvez, Javed and two other persons had attacked him. On the next day, on the identification of complainant, accused Parvez, Javed and their other brother Naved were arrested from their house.
(viii) The complainant had categorically identified all the accused persons in the Court. It is just that he could not tell their exact names i.e FIR No. 73/11, State Vs Javed & Ors. PS: Hauz Qazi Page 15/18 which one is Javed and which one is Naved. Infact, it is also observed by the Court that accused Parvez had falsely pointed out accused Naved as Javed and Javed as Naved in the Court which shows that accused persons were misleading the Court as well during the evidence of prosecution witnesses. All the three accused persons are brothers. The complainant has categorically stated their names and identified them as assailants. Thus, the mistake on the part of the complainant in identifying the accused with wrong name is inconsequential, as even if a complainant is not aware about the names of the accused persons he can identify the accused as the culprits. In the present matter, complainant had categorically stated that all the three accused persons had attacked him with one more, thus even if he could not identify them by their names it is of no consequence.
(ix) The contradictions in the testimonies of Ct. Rajesh i.e. whether the incident had taken place in his presence, or in his absence when he had gone to fetch a rickshaw is not of much relevance as in his examination-in-chief as well as cross-examination on behalf of accused persons, it is stated by Ct. Rajesh that incident had taken place when he was away for fetching a rickshaw, however when he returned he found that accused persons namely Parvez and Javed were grappling with the complainant.
(x) The defence witness examined on behalf of accused persons is of no use as he could not tell the time when he found complainant ASI Shri Kishan at the spot. Further, whatever is stated by him is a hearsay as he heard the said facts from an employee of the said hotel, however he could not tell the name of the said employee who apprised him that ASI Shri Kishan was demanding bribe, thus the defence witness examined by the accused persons is entirely unreliable.FIR No. 73/11, State Vs Javed & Ors. PS: Hauz Qazi Page 16/18
(xi) Though it can be said that recovery of punch at the instance of accused Parvez is little doubtful, nonetheless it is a fact that from the very beginning complainant is maintaining the fact that he was hit on his face by accused Parvez due to which he received injury. This fact is also corroborated by his MLC which shows that he received a number of injuries on his face. It is established principle of law that the complainant/victim shall not suffer due to the discrepancy in the investigation and the accused persons shall not be allowed to take benefit of the faulty investigation of the IO. It has been held by the Hon'ble Supreme Court in case titled as Ganga Singh Vs. State of Madhya Pradesh (2013) 7 SCC 278 that:
"The settle position of law is that the prosecution is required to establish the guilt of the accused beyond reasonable doubt by adducing evidence. Hence, if the prosecution in a given case adduces evidence to establish the guilt of the accused beyond reasonable doubt, the Court cannot acquit the accused on the ground that there are some defects in the investigation, but if the defects in the investigation are such as to cast a reasonable doubt in the prosecution case, then of course the accused is entitled to acquittal because of such doubt."
25. In the case in hand, this Court found the testimony of complainant/ injured absolutely credit worthy and truthful. It is to be noted that there was no motive for the complainant and other witnesses to falsely implicate the accused persons. The discrepancies and contradictions pointed out by Ld. Defence Counsel are inconsequential Hence, on the basis of above stated evidence, in the considered opinion of this court the prosecution is able to prove its case on record beyond reasonable doubt.
26. The testimonies of PWs are coherent and consistent and are implicating the accused persons. Thus, in the considered opinion of this FIR No. 73/11, State Vs Javed & Ors. PS: Hauz Qazi Page 17/18 Court, all the ingredients of Sections 186, 332, 353 & 34 IPC are satisfied. Thus, it is held that accused persons namely Javed, Parvez Ahmed and Naved are convicted for commission of offences punishable under Section 186/332/353/34 IPC.
27. Copy of the judgment be supplied to the accused persons free of cost.
ANNOUNCED IN THE OPEN GAJENDER SINGH NAGAR) COURT ON 14.07.2020 ACMM-02 (CENTRAL)/DELHI
Containing 18 pages all signed by the presiding officer.
Digitally signed by GAJENDER GAJENDER SINGH NAGAR
SINGH NAGAR Date: 2020.07.14 16:26:09
-04'00'
(GAJENDER SINGH NAGAR)
ACMM-02 (CENTRAL)/DELHI
FIR No. 73/11, State Vs Javed & Ors. PS: Hauz Qazi Page 18/18