Delhi District Court
State vs Asif Khan on 11 January, 2024
IN THE COURT OF METROPOLITAN MAGISTRATE-08,
SOUTH-EAST DISTRICT, SAKET COURTS, NEW DELHI
::: JUDGMENT :::
IN THE MATTER OF:
STATE Vs. ASIF KHAN FIR NUMBER: 238/2013 UNDER SECTION: 352/34 IPC POLICE STATION: JAMIA NAGAR A. CNR No. of the Case : DLSE020153062020 B. Cr. Case No. : 5437/2020 C. Date of Institution : 07.11.2020 D. Date of Commission of : 15.05.2013 Offence E. Name of the Complainant : Sh. Mubina, W/o Sh. Israr Rajput, R/o H. No. 22-23A, Lane No. 1, Advocate Compound, Old Jasola Village, New Delhi-25 F. Name of the Accused, his : Accused no. 1 Asif Khan, S/o Mohd.
Parentage & Addresses Sabir, R/o 295, Village & PS Bhojpur, Tehsil- Modinagar, Dist. Ghaizabad, UP Accused no. 2 Imran, S/o Sh. Iqbal, R/o H. No. 224, Village Kharaduani, Sekhpur, Tehsil & Dist. Meerut, UP Accused no. 3 Rizwan, S/o Sh.
Inshad Ali, R/o Village Chiroli, PO&PS Loni, Dist. Ghaizabad, UP Accused no. 4 Shokeen, S/o Sh.
Mehfooz, R/o 80, Village Chatela, PS
Titawi, Tehsil Dist. Muzaffarnagar,
UP
G. Offence complained of : 352/34 IPC
H. Plea of the Accused : Pleaded not guilty and claimed trial
I. Judgment reserved on : 17.11.2023
J. Date of Judgment : 11.01.2024
K. Final Order : Acquitted
ACCUSED DETAILS:
Sr. No. of the 1 2 3 4
accused
Name of the Asif Khan Imran Rizwan Shokeen
FIR No.238/2013 State Vs. Asif Khan Page No. 1/12
accused
Date of 09.01.2014 03.03.2014 02.04.2014 29.06.2014
Arrest
Date of 09.01.2014 03.03.2014 02.04.2014 29.06.2014
release on
Bail
Offence 352/34 IPC 352/34 IPC 352/34 IPC 352/34 IPC
charged with
Whether Acquitted Acquitted Acquitted Acquitted
Acquitted/
convicted
Sentence -- -- -- --
Imposed
Period of -- -- -- --
detention
undergone
during trial
(for section
428 CrPC)
LIST OF PROSECUTION WITNESS:
Sr.No. Name of the Witness
1 Ms. Mubina
2 Insp. Pankaj Gulliya
LIST OF DOCUMENTS (PROVED BY THE PROSECUTION):
Sr. No. Description of documents Exh. No. 1 Duty Officer with FIR Ex. A-1 2 Complaint Ex. PW1/A 3 Site Plan Ex. PW2/B 4 Arrest Memo Ex. PW2/C 5 Arrest Memo Ex. PW2/D 6 Arrest Memo Ex. PW2/E 7 Arrest Memo Ex. PW2/F 8 Bail bond Ex. PW2/G 9 Bail bond Ex. PW2/H 10 Bail bond Ex. PW2/I 11 Bail bond Ex. PW2/J DEFENCE WITNESS: None LIST OF DOCUMENTS (PROVED BY DEFENCE): NA Factual Background:
1. Briefly stated, the case of the prosecution is that on 15.05.2013 at about 06.30 PM, complainant Mubina was returning her home from walk and reached near her flat, suddenly a person namely Shokeen approached her from behind, covered her mouth FIR No.238/2013 State Vs. Asif Khan Page No. 2/12 with his hand and another person namely Asif caught her both hand and told "Ise uthakar jaldi se gadi me dalo". Complainant has seen that Imran and Rizwan also came there. She panicked and raised her voice. Due to her voice crowd gathered and as soon as they come to rescue the complainant Asif took out pistol from his left waist. Thereafter, all four persons have fled away towards tikona park, from the spot. On that basis, the present FIR was registered against the accused persons. Upon completion of investigation, charge sheet under section 365/511/34 IPC was filed and the accused persons were sent for trial.
Court Proceedings:
2. The ld. Predecessor of this court took cognizance of the offence on 07.11.2020 and issued process against the accused persons. Pursuant to the appearance of the accused persons, they were supplied with the copy of chargesheet in compliance of Section 207 CrPC.
3. Upon hearing the arguments, vide order dated 18.11.2021, charge under section 352/34 IPC was ordered to be framed against the accused persons. The accused persons pleaded not guilty and the matter was listed for Prosecution Evidence ('PE').
Prosecution Evidence:
4. In order to establish its case against the accused persons, prosecution examined two witnesses namely Ms. Mubina ('PW1'), and Insp. Pankaj Gulliya ('PW2').
5. PW1/ Mubina deposed that on 15.05.2013 around 6.30 PM, she was on evening walk at Teachers Training Institute, Jamia Nagar, New Delhi. She was returning back to her home i.e. B-84, Second Floor, Near Tikona park, Jamia Nagar, New Delhi-25, after walking. When she was near to her home, Mota @ Shokeen got clinched her face and after that Asif came and caught her both hands and told "isko gadi me utha ke le kar chalo". She deposed that she saw Imran and Rizwan coming downstairs from second FIR No.238/2013 State Vs. Asif Khan Page No. 3/12 floor from the gap of grilled iron stairs. Imran and Rizwan were also accompanying the said two accused persons. When she tried to escape from the clinch of Asif and Mota, people around vicinity gathered. After gathering of people, Asif got removed his pistol from his pocket. Meanwhile some more people gathered who tried to save her. On seeing the mob, the said four accused persons, fled away. Many of the persons out of the gathering called PCR. She deposed that she also immediately rushed to PS for lodging the complaint. She knows these accused persons from before. They are relatives of her devarni. She further deposed that accused Asif had registered an FIR in Uttarakhand against her husband, her father-in-
law, mother-in-law and brother-in-law and may be sister-in-law. The complaint is identified as PW-1/A bearing her signature at point A and stand by its contents. She was also pressurized by IO to take the complaint.
Court remarks as to demeanor of witness: the witness is confident about her testimony and can vividly recall the material events of the incident.
Accused was arrested and no information was provided to her neither any support was given to her by the police officials. She had to resort to the court in order to know about the status of investigation. Witness has correctly identified the accused persons namely Asif, Mota @ Shokeen and Imran in court. Accused Rizwan is not present in the court and exemption application has been filed on his behalf. Exemption application of the accused Rizwan is allowed subject to condition that identity of the accused Rizwan will not be disputed.
6. During cross examination by Ld. Defence Counsel, PW1 deposed that she is law graduate. On the day of incident, she was 7 months pregnant. Date of birth of her 1 st baby is 05.08.2013. She admitted that she was living on rent at that time. She did not have any rent agreement at that time. She was living there from 2012 to FIR No.238/2013 State Vs. Asif Khan Page No. 4/12 2015 but she does not remember the exact month. She paid rent in cash to Vandna Dutt R/o G.F of the same address. Her mother was residing at H.No. 79, Okhla main market, Okhla village Jamia Nagar at the time of incident and it was her permanent address. She deposed that she knows Asif and others accused since 2012 when marriage of her brother-in-law namely Akhlak took place. She admitted that all the accused persons are relatives of her devrani. Asif is real brother of her devrani. She admitted that on the day of incident there was no crowd. She does not know whether CCTV camera was installed there. No body known persons were present at the time of incident. Only passersby were there. He admitted that one criminal case FIR No.181/13 PS. Masoori, Gahziabad u/s 323/504/307/34 IPC and 3 and 4 dowry Prohibition act is pending against her husband and her in laws. She denied that she was not residing on rented flat because she does not have any rent agreement as well as rent payment receipt. She denied that FIR No. 181/13 was lodged on 12.04.2013 against her husband and in laws. She admitted that her devrani namely Rukshar sister of Asif fileed various matters that is section 12 domestic violence, 125 Cr.PC and complaint case 406 IPC filed against her in laws. On the day of incident, she went to PS and gave written complaint to the police officials. She does not remember whether she signed any other document except written complaint. She does not remember how many times she had visited the PS Jamia Nagar. On the day of incident, it was evening and some light was present. She does not remember who called on 100 number. She does not remember the colour of gun and size. She denied that present FIR lodged under the conspiracy against Asif and his relatives only to create pressure and withdraw the FIR No 181/13 PS. Masoori, Gahziabad u/s 323/504/307/34 IPC and 3 and 4 dowry Prohibition act. She admitted that only quarrel word mentioned in the both DD entry. She denied that she had never visited the PS on the day of incident.
FIR No.238/2013 State Vs. Asif Khan Page No. 5/12On 17.05.2013, she visited the spot with IO SI Pankaj Gulliya and driver. IO had not recorded any statement of witnesses. She does not remember whether she signed on any documents at the place of incident. She denied that the present FIR lodged under the conspiracy against the accused persons. She denied that public witnesses were not approached because she has filed wrong complaint. She denied that she is deposing falsely.
7. PW2/ Insp. Pankaj Gulliya deposed that on 17.05.2013 complainant Mubeena came to PS to give her complaint; he recorded the same and the complaint is already Ex.PW-1/A and it bears his endorsement on the same on point B. Thereafter, he along with the complainant went to the spot and prepared site plan. The same is identified as Ex. PW-2/B bearing his signature at point A. He arrested the accused persons vide arrest memos identified as Ex. PW-2/C, Ex. PW-2/D, Ex. PW-2/E, and Ex. PW-2/F bearing his signature at point A. Then he interrogated the accused persons who were arrested vide arrest memo above-mentioned, they were arrested at different dates and the same is mentioned in their respective arrested memos. Accused persons during interrogation told him that they were not involved in the offense and cross cases are going on between the complainant party and the accused persons. He released the accused vide bail bonds identified as Ex. PW-2/G, Ex. PW-2/H, Ex. PW-2/I, Ex. PW-2/J bearing his signature at point A. Thereafter, he completed the requisite formalities and filed the charge-sheet before the concerned court.
8. During cross examination by Ld. Defence Counsel, PW2 admitted that complainant namely Mubeena reached at PS Jamia Nagar on 17.05.2013. After receiving complaint, they lodged FIR against all the accused persons. On the same day, he reached at the place of incident at about 09.00 PM. He asked approximately 4-5 persons regarding joining of investigation but nobody has joined the investigation. He has not given notice to any FIR No.238/2013 State Vs. Asif Khan Page No. 6/12 public witness. He deposed that he has gone to the place of incident with a lady Constable. He does not remember the name of the lady constable who has accompanied him at the place of incident on the date of registration of case. He has gone to the place of incident by walking. The place of incident is at walking distance from police station. He deposed that he has prepared site plan and recorded supplementary statement of complainant, at the place of the incident. He has not taken signature of anybody on site plan. He has interrogated the accused Asif but the alleged gun was not recovered during the investigation of this case. He admitted that an information was received from the complainant that an FIR no. 181/2013 dated 12.04.2013 PS Masoori, Ghaziabad is filed against her husband. He has met with the complainant only once during the investigation but complainant used to visit PS. He denied that he has not conducted the investigation of this case fairly. He denied that he has prepared this case while sitting in PS. He denied that he is deposing falsely.
9. Accordingly, vide order dated 10.10.2023, PE was closed.
Admission u/s 294 CrPC
10. In terms of section 294 CrPC, accused persons have admitted copy of FIR as Ex. A-1.
Statement of the Accused
11. On 30.10.2023, statement of accused under Section 313 Cr.P.C. read with Section 281 Cr.P.C. was recorded in which all incriminating materials were put to them, to which they pleaded innocence and claimed to have been falsely implicated. Accused persons have chosen not to lead any defence evidence.
Final Arguments:
12. Ld. APP has re-iterated the contents of the chargesheet. Ld. APP has submitted that the case is proved beyond reasonable doubt.
FIR No.238/2013 State Vs. Asif Khan Page No. 7/12It is also submitted that such offence is grave offence and the accused persons be convicted of the offence charged u/s 352/34 of the IPC.
13. Per Contra, Ld. Counsel for defence has submitted that the person called on 100 number is not called as witness. Complainant and accused persons have previous enmity. No public witness was examined. Ld. Counsel for the accused has submitted that in evidence complainant stated that she has rushed to the PS after the incident but the FIR was registered on 17.05.2013 after delay of 2 days. At the end Ld. Counsel for the accused submitted that the prosecution has failed to prove its case beyond reasonable doubt and therefore, all the accused persons are entitled to be acquitted of the alleged offence.
14. 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:
15. 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. 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 FIR No.238/2013 State Vs. Asif Khan Page No. 8/12 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.
16. To accomplish the aforesaid purpose, prosecution has examined PW1/ Mubina as material witness and IO of this case.
17. PW1 has stated in her evidence in court that on 15.05.2013 around 6.30 PM, she was on evening walk at Teachers Training Institute, Jamia Nagar, New Delhi. She was returning back to her home i.e. B-84, Second Floor, Near Tikona park, Jamia Nagar, New Delhi-25, after walking. When she was near to her home, Mota @ Shokeen got clinched her face and after that Asif came and caught her both hands and told "isko gadi me utha ke le kar chalo". She deposed that she saw Imran and Rizwan coming downstairs from second floor from the gap of grilled iron stairs. Imran and Rizwan were also accompanying the said two accused persons. When she tried to escape from the clinch of Asif and Mota @ Shokeen, people around vicinity gathered. After gathering of people, Asif got removed his pistol from his pocket. Meanwhile some more people gathered who tried to save her. On seeing the mob, the said four accused persons, fled away. Many of the persons out of the gathering called PCR. She further deposed that she also immediately rushed to PS for lodging the complaint.
18. On perusal of FIR (Ex. A1) and complaint Ex. PW1/A, it is observed that alleged offence has taken place on 15.05.2013 but the information pertaining to offence reported to PS on 17.05.2013 at about 20:25 hrs and accordingly FIR was registered on 17.05.2013.
FIR No.238/2013 State Vs. Asif Khan Page No. 9/12There is no evidence that complainant has rushed to the PS on 15.05.2013 and given any complaint at PS on that day. PW1 has not given any reason for not giving any complaint on 15.05.2013 when she categorically stated that she had gone to the police station on the day of incidence. PW2 stated that the present complaint Ex. PW1/A received on 17.05.2013 and on the same day the FIR was registered on the basis of the aforesaid complaint.
19. DD No.55B and DD No. 56B discloses that an information regarding quarrel near Tikona Park is received on 15.05.2013 at about 07:03PM. Both DD No(s) bears different mobile number of the informer but neither examined by the prosecution. Prosecution has also not proved that any police official visited the spot after receiving information vide DD No. 55B and DD No. 56B. Both DD No(s) were further informed to SI B D Khan. SI B D Khan was not examined in this case. In these circumstances, it creates doubt in the mind of this court that whether the information in DD No. 55B and DD No. 56B is actually pertaining to this case.
20. Identity of the accused persons are not in dispute in this case. It is not the case of the prosecution that accused persons were absconding.
21. Ld. Counsel for the accused has argued that no public witness was examined in this case, therefore this case is false and all accused persons are falsely implicated.
22. To answer, there is no legal impediment in convicting a person on the sole testimony of a single witness. That is the logic of Section 134 of the Evidence Act, 1872. But if there are doubts about the testimony, the courts will insist on corroboration. In fact, it is not the number, the quantity, but the quality that is material. The time-honoured principle is that evidence has to be weighed and not counted. The test is whether the evidence has a ring of truth, is cogent, credible and trustworthy or otherwise. The said principle was Sunil Kumar Vs. State (NCT of Delhi) reported as (2003) 11 FIR No.238/2013 State Vs. Asif Khan Page No. 10/12 SCC 367 and again re-iterated in Mohd. Farman Vs. State reported as 2023 SCC OnLine Del 2699.
23. In present case, the fact that complainant has gone to the police station on the date of incident, as stated in her evidence, but she has not given any complaint. She has given her complaint on 17.05.2013. She has not given any explanation for the delay. In these circumstances the evidence of the complainant seems incredible. This fact creates doubt in the mind of this court and it requires corroboration on merits. No public witness was examined and the DD No(s) brought in this case also does not support the case of the prosecution in the light of fact discussed above.
24. It is admitted fact that accused Asif is the brother of devrani of the complainant namely Ruksar and rest of the accused are relative of Ruksar. Ruksar has filed complaint against husband of the complainant and her in-laws in Massorie, Distt. Ghaziabad, UP vide FIR No. 181/13 in PS Massorie, Distt. Ghaziabad, UP and one complaint case, under section 406 IPC, is also filed against complainant and her husband.
25. The fact that no independent witnesses were cited or examined, and the other infirmities as pointed out above, when kept in juxtaposition to each other, cast a serious doubt over the case of the prosecution. In view of what has been taken note by this court, the possibility of false implication of the accused persons cannot be ruled out. Thus, in view of the foregoing analysis, this court is of the considered opinion that the aforesaid deficiencies in the case of the prosecution are sufficient enough to raise a doubt on the veracity of the entire prosecution case against the accused persons and extend the benefit of doubt to them.
Decision:
26. Accordingly, accused (1) Asif S/o Mohd. Sabir (2) Imran S/o Mr. Iqbal (3) Rizwan S/o Mr. Inshad Ali and (4) Shokeen FIR No.238/2013 State Vs. Asif Khan Page No. 11/12 S/o Mr. Mehfooz held not guilty and stands acquitted for the offence punishable under Section 352/34 of the Indian Penal Code.
Announced in open (Abhitesh Kumar)
Court today i.e on 11.01.2024 MM-08, (SE) Saket Courts
New Delhi
This Judgment contains twelve pages (12) and all pages bears my signature.
(Abhitesh Kumar) MM-08 (SE): Saket Courts New Delhi: 11.01.2024 FIR No.238/2013 State Vs. Asif Khan Page No. 12/12