Delhi District Court
State vs Hakumuddin Saifi Etc on 17 November, 2023
IN THE COURT OF METROPOLITAN MAGISTRATE-08,
SOUTH-EAST DISTRICT, SAKET COURTS, NEW DELHI
::: JUDGMENT :::
IN THE MATTER OF:
STATE Vs. HAKUMUDDIN SAIFI & ORS FIR NUMBER: 542/2011 UNDER SECTION: 341/323/448/451/427/34 IPC POLICE STATION: JAMIA NAGAR A. CNR No. of the Case : DLSE020001812012 B. Cr. Case No. 87345/2016 C. Date of Institution : 21.05.2012 D. Date of Commission of : 13.10.2011 Offence E. Name of the Complainant : Sh. Mohd. Razi, S/o Sh. Munna Khan, R/o S - 789, Gali No. 5 near Mumtaz Masjid, Jogabai Extension, Jamia Nagar , New Delhi F. Name of the Accused, his : (1) Sh. Hakimuddin, S/o Late Sh.
Parentage & Addresses Rooh Ali
(2) Sh. Sajid Saifi, S/o Sh.
Hakimuddin Saifi
(3) Sh. Shah Alam, S/o Sh. Anwar Ali
(4) Abid Saifi, S/o Sh. Hakimuddin
Saifi
(5) Mohd. Sahab, S/o Sh. Md.
Shamshuddin
G. Offence complained of : 341/323/448/451/427/34 IPC
H. Plea of the Accused : Pleaded not guilty and claimed trial
I. Judgment reserved on : 04.09.2023
J. Date of Judgment : 17.11.2023
K. Final Order : Acquittal
ACCUSED DETAILS:
Sr. No. of 1 2 3 4 5
the
accused
Name of Hakumuddin Sajid Saifi Shah Alam Abid Saifi Mohd.
the Sahab
accused
Date of 15.10.2011 15.10.2011 13.10.2011 15.10.2011 13.10.2011
FIR No.542/2011 State Vs. Hakumuddin Saifi & Ors Page No. 1/25
Arrest
Date of 15.10.2011 15.10.2011 13.10.2011 15.10.2011 13.10.2011
release
on Bail
Offence 341/323/448/ 341/323/44 341/323/44 341/323/44 341/323/44
charged 451/427/34 8/451/427/3 8/451/427/3 8/451/427/3 8/451/427/3
with IPC 4 IPC 4 IPC 4 IPC 4 IPC
Whether Acquitted Acquitted Acquitted Acquitted Acquitted
Acquitted
/
convicted
Sentence -- -- -- -- --
Imposed
Period of -- -- -- -- --
detention
undergon
e during
trial (for
section
428
CrPC)
LIST OF PROSECUTION WITNESS:
Sr.No. Name of the Witness
1 Mohd. Razique
2 Retd. Inspector Gokul Ram
3 Mohd. Irshad
4 Munne
5 SI Sumer Singh
6 ASI Asad Khan
7 Zarif Ahmed
8 ASI Manveer Singh
LIST OF DOCUMENTS (PROVED BY THE PROSECUTION):
Sr. No. Description of documents Exh. No.
1 Statement Ex.PW1/A
2 Site Plan Ex.PW1/B
3 Arrest Memo of accused Shah Alam Ex.PW1/C
4 Arrest Memo of accused Mohd. Shahab Ex.PW1/D
5 Seizure Memo Ex.PW1/E
6 Rukka Ex.PW2/A
7 Arrest Memo of accused Hakimuddin Ex.PW2/B
8 Arrest Memo of accused Sajid Ex.PW2/C
9 Arrest Memo of accused Mohd. Abid Saifi Ex.PW2/D
10 Personal Search Memo Ex. PW2/E
11 Personal Search Memo Ex. PW2/F
12 Personal Search Memo Ex. PW2/G
13 Copy of FIR Ex PW5/A
14 Endorsement of Rukka Ex. PW5/B
FIR No.542/2011 State Vs. Hakumuddin Saifi & Ors Page No. 2/25
DEFENCE WITNESS:
Sr.No. Name of the Witness
1 Mohd. Shakeel Ahmed Khan
LIST OF DOCUMENTS (PROVED BY DEFENCE):
Sr. No. Description of documents Exh. No.
1 Authority Letter Ex.DW1/A
2 Attendance Register Ex.DW1/B
(OSR)
Factual Background:
1. Briefly stated, the case of the prosecution is that on 13.10.2011 at about 05.00 PM near Mumtaz Masjid, Joga bai Extension, Khasra no. 427/260, Yamuna Pusta, the accused persons namely Hakimuddin, Abid, Sazid and Munna along with one Shamim Saifi came along with 3-4 boys and threw the complainant out of his jhuggi. They started demolishing his jhuggi and when complainant tried to stop them, accused Hakimuddin slapped him and beaten him by fist blow, while accused Shamim Saifi pushed him and instigated others to beat him up if he interferes. The above said accused persons demolished the jhuggi of the complainant completely and left. On that basis, the present FIR was registered against the accused Hakimuddin Saifi, Mohd. Sahab, Mohd. Sajid Saifi, Mohd. Abid Saifi, Shamim Ahmad and Shah Alam. Upon completion of investigation,charge sheet under section 323/341/427/448/451/34 IPC was filed and all the accused was sent for trial.
Court Proceedings:
2. The Ld. Predecessor of this court took cognizance of the offence on 21.05.2012 and issued process against all the accused.
Pursuant to the appearance of the accused, they were supplied with the copy of chargesheet in compliance of Section 207 CrPC.
3. Accused Shamim Saifi was also summoned by the Ld. Predecessor on 29.10.2013 and pursuant to the appearance of the accused, he was supplied with the copy of chargesheet in compliance of Section 207 CrPC.
FIR No.542/2011 State Vs. Hakumuddin Saifi & Ors Page No. 3/25Charge:
4. Upon hearing the arguments, vide on order dated 07.05.2016, charge under Section 341/323/448/451/427/34 IPC was ordered to be framed against the accused Hakimuddin, Mohd. Sahab, Mohd. Sajid Saifi, Shamim Ahmad Saifi and Mohd. Abid Saifi except the accused Shah Alam since he was not present.
5. However, vide order dated 16.08.2017, Ld. ASJ-04, Revisional court, South-East has set aside the order dated 07.05.2016 of Ld. Precedessor and discharged the accused Shamim Ahmad Saifi.
6. On 22.02.2018, charge u/s 341/323/448/451/427/34 IPC was framed against the accused Shah Alam. The accused persons pleaded not guilty and the matter was listed for Prosecution Evidence ('PE').
Prosecution Evidence:
7. In order to establish its case against the accused persons, prosecution examined 8 witnesses namely Mohd. Raziq ('PW1'), Retd. Inspector Gokul Ram ('PW2'), Mohd. Irshad ('PW3') Munne ('PW4'), SI Sumer Singh ('PW5'), ASI Abad Khan ('PW6'), Zarif Ahmed ('PW7') and ASI Manvir Singh ('PW8')
8. PW1/ Mohd. Razique deposed that he is resident of H No. S-789, gali no. 5, near Mumtaj Masjid, Joga Bai Extension, New Delhi and residing at the abovesaid address with his family. He is labour by profession. He deposed that on 13.10.2011, he used to reside in his jhuggi at S-18/13, in khasra no. 427/260, Jamia Nagar, New Delhi. On that day, at about 5-5:15 pm, Hakimuddin, his son Abid, Sajid, Munna, Shamim Saifi and 3-4 more boys came inside his jhuggi. His jhuggi was adjacent backside to the house of the Hakimuddin. His jhuggi is situated in khasra no. 427/260 measuring 25 yards and which was built prior to four years on the day of incident. He deposed that he purchased the said jhuggi from FIR No.542/2011 State Vs. Hakumuddin Saifi & Ors Page No. 4/25 Malik Sher Mohd. Accused persons pulled out him from the jhuggi and tried to destroy his jhuggi. When he resisted for the same, the accused Hakimuddin slapped him, fists blows and accused Shamim Saifi was JE in MCD and also caught him and pushed him and also said that if he intervened, they will beat him. The accused persons badly destroyed his jhuggi and thereafter they fled from the spot. He called to the police, police reached and recorded his statement which is Ex PW-1/A, bearing his signatures at point A. Accused Hakimuddin, Mohd. Sajid Saifi, Mohd. Abid Saifi are correctly identified by the witness in court. He deposed that he could identify the accused Mohd. Shahab and Shah Alam, if shown to him. Accused Mohd. Shahab is permanently exempted from appearance and accused Shah Alam is exempted today and his identity is not disputed. Thereafter, he deposed that the police prepared the site plan at his instance which is Ex PW-1/B and searched the accused persons and apprehended accused Shah Alam and Mohd. Shahab. After interrogation of both the accused, IO arrested accused Shah Alam vide arrest memo Ex PW-1/C, bearing his signatures at point A and accused Mohd. Shahab Ex PW-1/D, bearing his signatures at point A. Thereafter, police recorded his statement u/s 161 CrPC. Police also seized four balli and two bamboo sticks, which was in his jhuggi and was destroyed by the accused vide seizure memo Ex PW-1/E. Accused Hakimuddin used to come alongwith accused Shamim Saifi to his house and instigated the accused Hakimuddin to destroy his jhuggi. On 15.10.2011, he went to the PS Jamia Nagar, where he identified accused Hakimuddin and his sons Abid and Sajid. Thereafter, IO arrested them and recorded his statement u/s 161 CrPC. At that stage, MHC(M) HC Naemi Chand has produced register no.19 of year 2011. As per the said register there was no entry of present FIR for depositing the case property i.e. log of woods.
FIR No.542/2011 State Vs. Hakumuddin Saifi & Ors Page No. 5/259. During cross examination PW1 deposed that he left from house no. S789, Gali no.5 near Mumtaz Masjid last year and he resided in the said house for about 11 years. At present he is residing at house no. S 18/24, Gali no. 18, Near Mumtaz Masjid. He admitted that he is not resided in any other house other than above mentioned houses. He knows accused Hakimuddin, Abid Saifi and Sajid Saifi for last about 11-12 years. He does not know accused Shamim Saifi and Munna. He knows the accused Shahab and Shah Alam since the day of incident. He denied that Jhuggi no. S 18/13, Khasra no.427/260 belonged to one Shabir. He had purchased said jhuggi from one Sher Mohd, in the year 2011. The jhuggi was already constructed when he purchased it. He admitted that Jhuggi was temporary structure. He admitted that the jhuggi is on DDA land. He admitted that accused Hakimuddin had filed a civil suit bearing no. 208/13 titled 'Hakimuddin Vs. Mohd. Razi and Ors' for permanent injunction in respect of Jhuggi no. S18/13, in which he was one of the defendants. He denied that he encroached upon DDA land on 13.10.2013 and erected the jhuggi no. S18/13 on it. He denied that no documents were executed when he purchased the said jhuggi. The documents executed was a sale deed. Police recorded his statement on 15.10.2011 and once on 22.10.2011. His statement was recorded by the police in the PS. Police had not taken any photographs of the spot in his presence. He denied that Shabir had demolished the jhuggi bearing S-18/13 on 13.10.2011. He denied that on 13.10.2011, he along with Sher Mohd. and Dilawar encroached upon the land of the DDA and erected the jhuggi. Mohd. Gulzar used to reside in the said jhuggi from 13.10.2011 till the year 2014. He was not kept as a tenant but only permitted by him to reside there in good faith. He deposed that he does not know if jhuggi no. S 18/24 A and S18/25 are the same property. He admitted that he had filed evidence by way of affidavit in the civil suit filed by Hakimuddin. He knows the person namely Shabir S/o FIR No.542/2011 State Vs. Hakumuddin Saifi & Ors Page No. 6/25 Sh. Rahimulla. He admitted that accused Hakimuddin had filed a civil suit bearing no. 533/2011 titled as Hakimuddin Vs. Mohd. Razi & Ors', wherein he filed his evidence by way of affidavit. The certified copy of the record is Ex.PW 1/D1 (Colly) (running into 118 pages). He admitted that the jhuggi temporary structure was demolished by DDA in the year 2014. Shabir was residing in the said jhuggi between 2006 to 2011. He does not remember the exact date. He does not remember the period when he had resided in said jhuggi. He does not remember the date when he purchased the jhuggi from Sher Mohd. He had remained in said jhugi for about 2 ½ to 3 years from the date of its purchase. He denied that he never resided in the said jhuggi. He admitted that he had signed the statement Ex. PW 1/A, Mark D1 dated 13.10.2011 and Mark D2 dated 22.12.2011 after reading the same. He denied that accused persons have been falsely implicated by him in the present case. He denied that accused persons have not pulled out his jhuggi. He denied that accused persons have not tried to destroy the jhuggi. He denied that accused Hakimuddin gave him slaps and fist blows. He admitted that Shamim Ahmed was not present at the spot. The police had not taken photographs of balli (bamboo) which were seized from the spot. He denied that accused Mohd. Shahab, Shah Alam and Shamim Ahmed Saif, Abid and Sajid have not caused any injuries to him. He denied that he is deposing falsely or that he has been falsely implicated the accused persons,
10. PW2/ Retd. Inspector Gokul Ram deposed that on 13.10.2011, he was posted as SI at P.S. Jamia Nagar. On that day, he received DD No. 64B regarding quarrel. Thereafter, he along with Ct. Manveer Singh went to the spot, i.e. near Mumtaz Masjid, Yogabai Extension, where some public persons were gathered and after enquiry they came to know that the accused persons had destroyed jhuggi of complainant Mohd. Rajiq. Complainant also met him at the spot. Therefore, he recorded statement of FIR No.542/2011 State Vs. Hakumuddin Saifi & Ors Page No. 7/25 complainant, which is already Ex. PW-1/A bearing his signature at point B. He endorsed the same and prepared rukka which is Ex. PW-2/A bearing his signature at point A and handed over the same to Ct. Manveer Singh for registration of FIR. After registration of FIR, they returned at the spot. Thereafter, he prepared site plan at the instance of complainant which is already Ex. PW-1/B bearing his signatures at point A. He also seized four logs of wood and two bamboo sticks vide seizure memo already Ex. PW-1/E bearing his signatures at point A. He searched the accused persons and at the instance of the complainant, he apprehended accused Shah Alam and Sahab. Thereafter, he took them to the police station and arrested vide arrest memo already Ex. PW1/C and Ex. PW1/D both bearing his signature at point B respectively. He deposed that he could identify the accused if shown to him. However, accused persons Shah Alam and Sahab have been exempted from appearance and their identity is not disputed. He deposed that he recorded statement of witnesses under Section 161 Cr.P.C. on 15.10.2011. Accused Hakimuddin and Sajid and Mohd. Abid Saifi came to the police station. He called the complainant to the police station and at the instance of complainant, he arrested them vide arrest memo which is Ex. PW-2/B, Ex. PW-2/C and Ex. PW-2/D, which bears his signatures at point A respectively. He conducted their personal search vide personal search Ex. PW-2/E, Ex. PW-2/F, Ex. PW-2/G respectively, which bears his signatures at point A. He recorded the statement of complainant. He deposed that on 22.12.2011, he met complainant along with three public persons who told that accused persons demolished jhuggi of complainant. Thereafter, he recorded their statements under S. 161 Cr.P.C. He further deposed that he retired from the service, in the year 2017. Despite best efforts, he could not trace the case property. He had not taken any receiving from the Malkhana for depositing the case property.
FIR No.542/2011 State Vs. Hakumuddin Saifi & Ors Page No. 8/2511. During cross examination, he deposed that he does not remember the name of Malkhana Mohararrar (Incharge) to whom he handed over the case property. He denied that he did not hand over the case property to Malkhana Incharge. He denied that no case property has been recovered in the present case from the spot. He deposed that on 13.10.2011, he was on emergency duty from 08.00 AM to 08.00 PM. Duty officer, has informed through telephone regarding DD No. 64B. He does not remember the time of its receiving and the name of place where he was present. Ct Manveer was with him at that time. He does not remember the name of the Duty Officer, but he might be ASI Sumer. He deposed that he reached at the spot at about 05.30 PM by Scooter of Ct. Manveer. He does not know the registration number of scooter. Mohd. Razi met him at the spot and Mohd. Razi narrated about the incident. Ct. Manveer left with Rukka at about 08:45 PM and returned within half an hour with copy of FIR at the spot. He does not remember the name of the official who had registered FIR on his Rukka. He does not remember the time when he left the spot. Thereafter they headed towards Jogabai Extension along with complainant, where H. Ct. Abid Khan met. At that spot, complainant had identified two persons and told that these two persons were also involved in scuffle. He deposed that they took them to the police station. At police station, he has arrested two accused and released them on furnishing Surety Bond. He does not remember the time when they reached at PS. He does not remember the name of the surety. He deposed that the complainant and accused persons and their sureties had left the police station at about 11:30 PM. He deposed that he had given the information on the seized property to MHC(M), but he has not physically handed over the case property. He denied that he had not given the information about the seized property to MHC(M), and nor physically handed over the case property to MHC(M). He deposed FIR No.542/2011 State Vs. Hakumuddin Saifi & Ors Page No. 9/25 that on 13.10.2011, he does not examine or recorded the statement of any other person except complainant. He does not verify the address of complainant. He could not say, whether the complainant was not residing at S-789, gali No. 5, Nr. Mumbtaz masjid, Jogabai Extn. He deposed that he had not taken the photographs of alleged broken jhuggi. He does not remember the number of the jhuggi, i.e. S-18/13. He admitted that, Mohd. Shabbir was residing in Jhuggi No. S-18/13. He denied that on 13.10.2011, Mohd. Shabeer had left the jhuggi after dismantling it. He admitted that the complainant has also levelled allegation against Shamim Ahmad Saifi who was Engineer in MCD. He denied that the statement of Complainant Mohd. Razi was recorded at PS. He voluntarily deposed that the statement u/s 161 Cr PC was recorded at PS on 3-4 occasions. He was in police station on 15.10.2011, where accused namely Hakimuddin and his sons Sajid and Abid came voluntarily to him in the evening in his room at PS at about 05:00 PM. He voluntarily deposed that he called complainant who has identified the accused persons, thereafter he released the accused on furnishing surety bonds upon instruction of SHO. At that time, SHO was Sh. SS Dagar. He denied that no such incident was taken place on 13.10.2011. He denied that complainant falsely implicated the accused persons in the present case. He does not know whether any civil case pertaining to the jhuggi was pending between complainant and Hakimuddin. He recorded the statement u/s 161 Cr PC of 7 - 8 persons. He admitted that FIR No. 143/12 had been registered at PS Jamia Nagar against Mohd. Razi, Zareef Ahmad and Mohd. Gulzar upon the complaint of wife of Accused Hakimuddin. He denied that he has not investigated the present case in proper manner and as per law. He denied that he is deposing falsely in the present case.
12. PW3/ Md. Irshad deposed that he is resident of House no. S-18/18, Jogabai Extension, Jamia Nagar, New Delhi. He deposed FIR No.542/2011 State Vs. Hakumuddin Saifi & Ors Page No. 10/25 that he is illiterate. He further deposed that on 13.10.2011, at around 05:00 to 05:15 pm, he was present at his earlier address i.e. house no. S-246, Jamia Nagar, New Delhi. Suddenly he heard some commotion. Thereafter, he went out and saw that 5 persons along with their associates were breaking the jhuggi of complainant Mohd. Razi. The said five persons included Hakumuddin, Sajid and Abid and he could not remember the names of other persons. Lot of persons had gathered at the spot. He deposed that they all tried to make Hakumuddin, Sajid and Abid understand. The said persons were also abusing Razi. In the meantime, police came to the spot and took two of the accused with them. He deposed that he did not see any person giving beatings to Razi during the incident. Accused Hakumuddin, Sajid and Abid are correctly identified by the witness in court. At that stage, Ld. APP for the State has sought permission to put leading questions to the witness. Same was Allowed. Accused persons had not beaten Mohd. Razi in his presence. He denied that accused persons had beaten Mohd. Razi in his presence during the incident.
12. During cross examination by Ld. Counsel for the accused Hakumuddi, Abid Saifi, Sajid and Shahab, PW3 deposed that he used to reside close to the jhuggi of Mohd. Razi and in adjacent gali. He could see jhuggi of Mohd. Razi from his earlier residence. He knows complainant Mohd. Razi since last 8-9 years. He knew him prior to the incident in question. He denied that that he was asked by Mohd. Razi to depose in the present case. He voluntarily deposed that he received summons from the court. He denied that he has come to the court with Mohd. Razi. He admitted that, Mohd. Razi is also present in the court. He admitted that one FIR u/s 308 IPC is pending against him. He denied that complainant Mohd. Razi is helping him to compromise the said FIR. He admitted that he is currently not residing at house no. S-246. He denied that he had not seen accused persons pulling down jhuggi of complainant.
FIR No.542/2011 State Vs. Hakumuddin Saifi & Ors Page No. 11/25He denied that he was not present at the spot at the relevant time. He denied that he is deposing falsely at the behest of complainant. He denied that summons of the present case was not received by him at his address.
13. During cross examination by Ld. Counsel for the accused Shah Alam, PW3 admitted that he does not know the accused Shah Alam by his name. He voluntarily deposed that accused Shah Alam was one of the five persons who were pulling down jhuggi of complainant. (Court observation: when asked to point out towards the said person, witness has pointed out towards accused Shah Alam and correctly identified him by face). He denied that complainant had prompted him about identity of accused Shah Alam. He voluntarily deposed that he had seen him at the spot. He had not seen accused Shah Alam before the date of incident. Apart from the names mentioned by him, he does not know names of other persons involved in the incident in question. He denied that incident in question never took place. He denied that accused has been falsely implicated in this case. He denied that he is deposing falsely.
14. PW4/ Sh. Munne deposed that he belongs to Village Ujhari, District Amroha, UP. He deposed that he was residing at Delhi at the time of incident. He does not remember the exact date. However, the incident took place in 10 th month around 9-10 years back. He is illiterate. He used to run Buggi. He used to reside near the residence of accused Hakimuddin. At about 5 pm, he saw that quarrel was taking place between Razi and accused Hakimuddin. Accused Hakimuddin was giving leg and fist blows to Razi. 5-10 public persons gathered at the spot i.e. behind the house of accused Hakimuddin. Accused Hakimuddin was also accompanied with his two sons namely Abid and Sajid at that time. He deposed that they were also uprooting the jhuggi of Razi and giving beatings to Razi FIR No.542/2011 State Vs. Hakumuddin Saifi & Ors Page No. 12/25 by giving leg and fist blows to him. Someone from the public called the police. Police came there. However, accused Hakimuddin and his sons had fled away from the spot before the police came there. Witness has correctly identified the accused persons, namely, Hakimuddin, Abid and Sajid in court. At that stage, Ld. APP for the State has sought permission to ask some leading questions. Same was allowed. Witness admitted that the incident in question took place on 13.10.2011.
15. During cross examination by Ld. Counsel for the accused Shahab, Hakimuddin, Abid and Sajid, PW4 deposed that he stayed at the jhuggi near spot for around 6 months. He left the said jhuggi around 8 years back. He does not remember date, month or year when he left the said jhuggi. Distance between his jhuggi and the spot was about 12 feet. He denied that he never stayed at the said jhuggi. He denied that he was not present at the spot at the relevant time. Complainant Razi was residing in the jhuggi which was being destroyed by accused persons. He denied that one Shabbir and not Razi was residing in the said jhuggi. He has never given any statement to the police as he was not present in Delhi and had gone to his native village in UP. He admitted that he has come to the court with complainant Razi. He denied that he is deposing falsely at the behest of Razi. He admitted that he has not received any summons from the court regarding coming to the court. He denied that incident in question did not take place. He denied that accused persons did not give leg and fist blows to Razi. He denied that he is deposing falsely. Witness was not cross examined by the Ld. Counsel for the accused Shah Alam despite opportunity given.
16. PW5/ Retd. SI Sumer Singh deposed that on 13.10.2011, he was posted at PS Jamia Nagar as Duty Officer from 04:00 PM to 12:00 mid-night and at about 09:10 PM, he received a Rukka sent by SI Gokul Ram through Ct. Manveer and on the basis of same above-mentioned FIR was registered by him, copy of FIR is FIR No.542/2011 State Vs. Hakumuddin Saifi & Ors Page No. 13/25 Ex.PW-5/A bearing his signature at point A and he also made endorsement on Rukka Ex.PW-5/B bearing his signature at point A. He has brought the original FIR(OSR).
17. During cross examination by Ld Counsel for the accused Hakumuddin Saifi, Abid, Sajid and Shahab Alam, PW5 admitted that he does not have any personal knowledge about the present case. He denied that he had not received rukka sent by the IO through Ct. Manveer or that he had registered the FIR.
18. During cross examination by Ld. Counsel for the accused Shah Alam, PW5 admitted that he does not have any personal knowledge about the present case. He denied that he had not received rukka sent by the IO through Ct. Manveer or that he had registered the FIR.
19. PW6/ ASI Abad Khan deposed that on 13.10.2011 he was posted at PS Jamia Nagar as HC. On that day, he joined the investigation of present case with SI Gokul Ram. On that day, IO has arrested accused Shah Alam and Mohd. Sahab vide memo already Ex. PW-1/C and Ex. PW-1/D bearing his signature at point C each. IO also conducted their personal search vide memo already Ex. PW1/E and PW-1/F bearing his signature at point E each. He deposed that he could identify the aforesaid accused persons, if shown to him. Exemption application on behalf of accused Shah Alam is filed wherein the identity of the accused is not disputed and he has no objection if evidence is recorded in his absence. Mohd. Shahab is permanently exempted vide order dated 08.05.2017, wherein the identity of the accused is not disputed and he has no objection if evidence is recorded in his absence.
20. During cross examination by Ld. Counsel for the accused Hakimuddin Saifi, Abid Sajid and Shahab Alam, PW6 deposed that his duty hours on 13.10.2011 were between 08:00 AM to 08:00 PM. He went to the place of arrest after he received information/direction from the PS. DO Sumer Singh has informed FIR No.542/2011 State Vs. Hakumuddin Saifi & Ors Page No. 14/25 the same. The place of arrest of accused persons i.e. Jogabai is near Batla House Chawk. He does not remember the exact address at which the accused persons were arrested. He admitted that the accused persons were not arrested from the place of incident. Apart from IO Gokul Ram and ct. Manveer Singh, no other police officer was present on that day. The accused persons have been arrested at about 07:00 PM. IO had not given any notice to public person to join the investigation. He denied that the accused persons have not been arrested by IO in his presence. He denied that Ct. Manveer was not present on that day at the time of arrest of accused person. He denied that all the proceedings were done while sitting at PS. He denied that he had not joined the investigation of the present case. He does not know about the incident in question. He denied that accused persons has been falsely implicated in this case. He denied that he is deposing falsely.
21. PW7/ Sh. Zarif Ahmad deposed that on 13.10.2011, at about 05:00 to 05:15 PM, he saw that three persons who are present in the court along with other persons had demolished a jhuggi belonging to Mohd. Razi after cutting the woods supports/pillars. They were scuffling with the Mohd. Razi. Thereafter, they went to the PS and complaint was lodged. At that stage, witness had pointed out against accused persons, but, witness does not know their names but, he remembers their faces. Other accused persons are not present in the court but, he could not identify other accused persons. He does not want to say anything else.
22. During cross examination by Ld. Counsel for the accused Hakimuddin Saifi, Sajid Saifi, Abid Saifi and Mohd. Shahad, PW7 deposed that he knows Mohd. Razi last from 10-15 years ago from the date of incident. He denied that Mohd. Razi is his friend. He voluntarily deposed that Mohd Razi is not his friend. He knows him as he visits his place and he visited his place. The distance between his residence to residence of Mohd. Razi is around 400 meters. He FIR No.542/2011 State Vs. Hakumuddin Saifi & Ors Page No. 15/25 admitted that today he has come to the court along with Mohd. Razi. He admitted that a person namely Shabir used to reside in the above said jhuggi however, he does not remember the exact period of stay. He also could not tell whether he was residing in the jhuggi from the period 2006-2011. He voluntarily deposed that in the year 2011, when the said destruction took place, he was residing at the said jhuggi. He admitted that, Mohd. Razi had never resided in the said jhuggi. He does not know whether in the year of 2014, the said jhuggi was demolished by the DDA as it was illegally built up on the DDA land. He does not remember whether he was booked in FIR bearing no. 143/2012, PS Jamia Nagar u/s 341/323/34 IPC. He does not remember whether he was convicted in the said FIR by this Hon. Court on dated 22.02.2019. At that stage, the certified copy of judgment 22.02.2019, order on sentence dated 15.03.2019 passed in FIR No. 143/2012 PS Jamia Nagar along with other documents shown to the witness. After seeing the same the witness has stated that he has been convicted in the said case as per the aforesaid documents. The documents are Ex. PW7/DA (colly). He denied that accused Hakimuddin, Abid and Sajid were not demolishing the Jhuggi of the complainant. He denied that he had not seen the accused persons demolishing the Jhuggis nor he had seen the accused persons beating the complainant. He denied that he was not present at the spot at the relevant time, period and date. He denied that the accused persons have been falsely implicated in the present case at the behest of complainant. Police recorded his statement at the spot. He had visited the PS in relation to the present case but he does not remember the date and time. He does not remember if he had visited the PS with any other person or not. The IO arrested all the 05 accused persons on 13.10.2011 in his presence from the spot. The witness identified the four accused who are present in the Court who have been arrested on 13.10.2011 from the spot. He does not remember whether he has signed on any FIR No.542/2011 State Vs. Hakumuddin Saifi & Ors Page No. 16/25 document at the instance of the IO on that day. He admitted that today he came to the Court along with the complainant Mohd. Razi. The IO of this case seized the bamboo of Jhuggi in his presence on the same day. He denied that the same has not been seized in his presence. He denied that he is deposing falsely at the behest of the complainant or due to previous enmity. Witness was not cross examined by Counsel for the accused Shah Alam despite opportunity given.
23. PW8 ASI Manveer Singh deposed that on 13.10.2011, he was posted at PS Jamia Nagar as constable. On that day, he joined the investigation in the present case with IO/SI Gokul Ram. On that day, IO/SI Gokul Ram received DD No. 64B regarding a quarrel near Mumtaz Masjid. He deposed that he along with IO/ SI Gokul Ram went to the spot and met complainant Mohd. Razi who gave his statement to the IO. IO prepared the tehrir on the basis of statement and handed over the same to him and sent him to the PS for registration of FIR. He further deposed that he went to PS and got registered the FIR and returned to the spot. He handed over the copy of FIR and original Rukka to IO. Thereafter, they along with complainant went in search of accused persons in the area of Jogabai. In the area of Jogabai, they met to accused persons namely Shah Alam and Sahab, the complainant identified them and thereafter, they all returned to PS. IO arrested accused Shah Alam and Mohd. Sahab vide memo already Ex. PW1/C & Ex. PW1/D bearing his signature at Point D. IO also conducted personal search of accused Sahab and Shah Alam vide memo already Ex. PW2/E and Ex. PW2/F, bearing his signature at Point D. He deposed that on 15.10.2011, IO called him in PS, 2-3 persons were already present there. Accused Sajid, Abid and Hakim were arrested by the IO vide arrest memo already Ex. PW2/B, Ex. PW2/C and Ex. PW2/D bearing his signature at Point B. He deposed that he could identified the accused persons if shown to him. All accused except FIR No.542/2011 State Vs. Hakumuddin Saifi & Ors Page No. 17/25 Mohd. Sahab were present in the court. Witness has correctly identified all the present accused persons in court. The accused Sahab was permanently exempted vide order dated 08.05.2017 wherein he has not disputed his identity and the evidence may be recorded in his absence.
24. During cross examination by Ld. Defence counsel for all the accused except Shah Alam, PW8 deposed that on 13.10.2011, he was on field duty. He was present at police booth Batla House, when IO informed him about the aforesaid DD entry. IO took him to the spot from Batla House police booth. He reached at spot at about 06:00 PM. He does not remember the time when he reached at PS along with rukka and even he does not remember the time when he returned at spot along with FIR. He went to the PS on motorcycle of IO. IO has not recorded the statement of any person including complainant in his presence. No case property was recovered by the IO in his presence. Even he does not know the case property. IO arrested the accused Mohd. Sahab and Shah Alam from near Batla House Chowk on pointing of complainant. He denied that IO did not arrest the accused namely Mohd. Sahab and Shah Alam from the House Chowk. He denied that he did not went Police Station for registration of FIR from spot and returned back at spot after registration of FIR. He denied that he along with the IO and complainant did not went for search of accused persons. He denied that complainant did not point towards accused Mohd Sahab and Shah Alam in his presence. He admitted that the arrest memo pertaining to the accused Shah Alam and Mohd. Sahab were filled and executed at PS. He deposed that he does not remember the time when he along with IO, complainant and accused persons reached at PS. He does not remember the name of the DO on 13.10.2011 and on 15.10.2011. No any other person on behalf of complainant was present at PS. A person namely Jarif Ahmed was also present at PS but he does not remember the time when he came and returned FIR No.542/2011 State Vs. Hakumuddin Saifi & Ors Page No. 18/25 back from the PS. He denied that he is deposing falsely in the present case. Witness was not cross examined by ld. Defence counsel for the accused Shah Alam despite given opportunity.
25. Accordingly, vide order dated 27.06.2023, PE was closed.
Statement of the Accused:
22. Statement of all accused under Section 313 Cr.P.C. read with Section 281 Cr.P.C. was recorded in which all incriminating material was put to them, to which they pleaded innocence and claimed to have been falsely implicated. Accused has opted to lead any defence evidence.
Defence Evidence:
23. In DE, Mohd. Shakeel was examined as DW1 on 09.08.2023.
24. DW1/ Mohd. Shakeel Ahmed deposed that he is a summoned witness and hereby authorized by Dr. Sufian Ahmed, University Librarian to appear before this Hon'ble Court and file the extract of attendance register i.e. for the month of October 2011 vide authority letter dated 08.08.2023 which is exhibited as Ex.
DW1/A. The copy of relevant page of attendance register is exhibited as Ex. DW1/B (OSR-1page). The name of Hakumuddin is mentioned at Sr. No. 3 at Point X of Ex. DW1/B. As per the register, the accused Hakumuddin came on duty at 09:00 AM on 13.10.2011 and left after 05.30 PM and there is an interval from 01:00 AM to 02:00 PM. He deposed that he has joined Dr. Zakir Hussain Library in the year 2023 and he could not say how the time 01:00 AM to 02:00 PM is written on Ex. DW1/B. However, the interval time of Dr. Zakir Hussain Library is from 01:00 PM to 02:00 PM. The interval hours i.e. 01:00 AM may be an error by writing by the dealing clerk posted at the relevant time.
25. During cross examination by Ld. APP, DW1 deposed that he was working as an MTS/ Peon at Registrar Office, Jamia Milia Islamia prior to joining Dr. Zakir Hussain Library. The only FIR No.542/2011 State Vs. Hakumuddin Saifi & Ors Page No. 19/25 qualification that is required for becoming an MTS is 10 th passed. He has no clue how attendance register was maintained by the concerned department, prior to his joining at the library. He admitted that in his belief it is an error by the concerned clerk who recorded the interval time in Ex. DW1/B. He denied that he is deposing falsely.
Final Arguments:
26. Ld. APP has submitted that prosecution has proved the case beyond reasonable doubt and all the accused persons be convicted for the offences committed by them.
27. Per contra, Ld. Counsel for the accused submitted that accused Hakimuddin was not present at the spot since he was on his duty. Further, he has submitted that complainant has filed false complaint against the accused persons. Case property is not proved in this case which shows investigation in this case was biased. He has further submitted that one accused Shamim Ahmad Saifi was discharged by the Ld. Revisional Court on the grounds of alibi another accused Hakimuddin abled to prove his alibi on the basis of attendance register of his employer, how the testimony of the complainant can be relied upon. At the end, he has submitted that the prosecution has completely failed to prove its case beyond reasonable doubt and therefore, accused persons are entitled to be acquitted of the alleged offences.
28. This court has heard the submissions of Ld. APP for State and the Ld. Counsel for accused and carefully perused the judicial record.
Discussion and Analysis:
29. 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 FIR No.542/2011 State Vs. Hakumuddin Saifi & Ors Page No. 20/25 was observed in Partap v. State of U.P. reported as A.I.R. 1976 SC 966 that while prosecution is required to prove its case beyond a reasonable doubt, accused can discharge his onus by establishing a mere preponderance of probability. In Vijayee Singh v. State of U.P. reported as 1990(3) SCC 190, it was again held that in criminal cases burden is always is on prosecution and never shifts. In Nasir Sikander Shaikh v. State of Maharashtra reported as (SC) 2005 Cri.L.J. 2621 and Jarnail Singh v. State of Punjab reported as (SC) 1996(1) R.C.R.(Criminal) 465 it was held that it is cardinal principle of criminal jurisprudence that an accused is presumed to be innocent and burden lies on prosecution to prove the guilt of accused beyond reasonable doubt. Prosecution is under legal obligation to prove each and every ingredient of the offence beyond any doubt, unless otherwise so provided by the Statute. Accused is not expected to prove his innocence to the hilt. If prosecution story is doubtful, benefit of doubt must go to the accused.
30. To accomplish the aforesaid purpose, prosecution has called PW1/Raziq, PW3/Irshad, PW4/Munne and PW7/Zarif Ahmad as material witness. Rest of the witnesses are Police witness who have proved the official duties rendered by them.
31. Coming to this case, total 6 accused were summoned by the Ld. Predecessor of this court. One accused Shamim Ahmad Saifi preferred revision against the order of charge passed by this court on 07.05.2016, before Ld. ASJ-04, South-East. Accused Shamim Saifi was discharged by the Ld. ASJ on the ground of Alibi vide order dated 16.08.2017. Admittedly, this order was passed before recording of evidence. Charge against rest of the accused were confirmed since they have not challenged it. Uninfluenced by the order of Ld. ASJ-04, this court shall assess this case on the basis of evidence recorded in court.
FIR No.542/2011 State Vs. Hakumuddin Saifi & Ors Page No. 21/2532. PW1/complainant proved his complaint Ex. PW1/A wherein it is stated that on 13.10.2011 at about 05:00PM, Hakimuddin, Abid, Sajid, Munna and Shamim Saifi, JE, MCD has come along with 3-4 boys at his Jhuggi and started uprooting it. He has further stated in Ex. PW1/A that Hakimuddin has beaten him and Shamim Saifi has pushed him and told another person to beat him if he interferes. During examination in chief, he has reiterated his complaint but during cross examination he has admitted that Shamim Ahmad was not at the spot.
33. PW3/Irshad has categorically stated in his evidence that only 5 persons were at the place of incident including Hakimuddin, Abid and Sajid. In cross examination he has stated that Shah Alam was also at the spot at the time of incident. PW4/Munne stated in his evidence that Hakimuddin was accompanied with his two sons namely Abid and Sajid at the time of incident. They were uprooting the jhuggi of complainant Raziq and also beaten him by leg and fist. PW7/Zarif Ahamd has stated that he was present at the time of incident and further stated that all 5 accused persons were arrested by Police on 13.10.2011.
34. During defence evidence accused Hakimuddin has taken plea of Alibi and proved attendance register Ex. DW1/B which shows he has attended his duty at 09:00 AM and left after 05:30PM on 13.10.2011. This document bears signature of the accused Hakimuddin.
35. In Kamal Prasad and others V. State of MP (Now State of Chhattisgarh) reported as 2023 SCC OnLine SC 1300; division bench of Hon'ble Supreme Court re-iterated the principles of Plea of Alibi and also stated the conditions to prove the same.
The Latin word alibi means "elsewhere" and that word is used for convenience when an accused takes recourse to a defence line that FIR No.542/2011 State Vs. Hakumuddin Saifi & Ors Page No. 22/25 when the occurrence took place, he was so far away from the place of occurrence that it is extremely improbable that he would have participated in the crime.
19. The principles regarding the plea of alibi, as can be appreciated from the various decisions of this Court, are:
19.1 It is not part of the General Exceptions under the IPC and is instead a rule of evidence under Section 11 of the Indian Evidence Act, 1872.
19.2 This plea being taken does not lessen the burden of the prosecution to prove that the accused was present at the scene of the crime and had participated therein.
19.3 Such plea is only to be considered subsequent to the prosecution having discharged, satisfactorily, its burden. 19.4 The burden to establish the plea is on the person taking such a plea. The same must be achieved by leading cogent and satisfactory evidence.
19.5 It is required to be proved with certainty so as to completely exclude the possibility of the presence of the accused at the spot of the crime.
In other words, a standard of 'strict scrutiny' is required when such a plea is taken.
36. Keeping in view the principles laid down by Hon'ble Supreme Court in Kamla Prasad Case, this court is of the view that accused Hakimuddin has satisfactorily proved his plea of Alibi by bringing the attendance record which is very strong evidence and something which is better than mere oral testimony of any witness.
FIR No.542/2011 State Vs. Hakumuddin Saifi & Ors Page No. 23/25Therefore, here again it is proved that accused Hakimuddin was also not present at the spot on 13.10.2011 at about 05:00PM.
37. Now it is seen that one accused Sahmim Shaifi was discharged by Ld. ASJ-04 on 16.08.2017 on the grounds of Alibi. After leading evidence from both sides, it has come before this court that accused Hakimuddin was also not present at the spot. Further, this court has observed that complainant has tried to improve his case by giving contradictory statement. At one place he has stated that accused Sahmim Shaifi was present at the spot and immediately during cross examination he has admitted that accused Shamim Shaifi was not present at the spot. Therefore, PW1/complainant not only changing his case at different stage but there is material contradiction inter se in his version. In view of above discussion, PW1/complainant is not a reliable witness and there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies proved during the trial.
38. In view of the Alibi of the accused Hakimuddin, the testimony of PW3, PW4 and PW7 is also not reliable. Further, PW1 stated that there were 8-9 persons were there at the spot who has committed the alleged offence. PW3 stated that there were only 5 persons who has committed the alleged offence. PW4 stated that there were only 3 persons who has committed the alleged offence. All are stated to be an eye witness of the incidence but their versions are different from each other. PW7 stated that all accused were arrested on 13.10.2011 and he was present there. This version is factually incorrect considering arrest memos. In these circumstances none of the witness is wholly reliable and beneficial for the case of the prosecution.
39. Therefore, the prosecution has miserably failed to connect the accused with the alleged incident and the case of the prosecution cannot be said to have been proved beyond reasonable doubt in any manner.
FIR No.542/2011 State Vs. Hakumuddin Saifi & Ors Page No. 24/25Decision:
40. Accordingly, accused Hakimuddin Saifi S/o Late Sh. Rooh Ali Khan, Md. Shahab S/o Md. Shamshuddin, Md. Shajid Saifi S/o Md. Hakimuddin, Md. Abid Saifi S/o Md. Hakimuddin and Shah Alam S/o Anwar Ali held not guilty and stands acquitted for the offence punishable under Section 341/323/448/451/427/34 of the Indian Penal Code.
Announced in open (Abhitesh Kumar)
Court today i.e on 17.11.2023 MM-08, (SE) Saket Courts
New Delhi
This Judgment contains twenty five pages (25) and all pages bears my signature.
(Abhitesh Kumar) MM-08 (SE): Saket Courts New Delhi: 17.11.2023 FIR No.542/2011 State Vs. Hakumuddin Saifi & Ors Page No. 25/25