Delhi District Court
Yusuf Khan vs Sarfaraz on 29 January, 2013
1
IN THE COURT OF SH. SANJEEV AGGARWAL ADJ03
(CENTRAL) TIS HAZARI COURTS / DELHI
SUIT NO. : 62/2002
YUSUF KHAN
D/O. CHANDA KHAN
R/O. 172, J. EXTENSION,
LAXMI NAGAR, DELHI 92. ....PLAINTIFF
VERSUS
1. SARFARAZ
S/O. WALI MOHAMMAD
R/O. 172, J. EXTENSION,
LAXMI NAGAR, DELHI 92.
2. MOHAMMAD AKIL
S/O. WALI MOHAMMAD
R/O. 172, J. EXTENSION,
LAXMI NAGAR, DELHI 92.
3. RAISA BEGUM
W/O. WALI MOHAMMAD
R/O. 172, J. EXTENSION,
LAXMI NAGAR, DELHI 92.
4. MOHAMMAD RASHID
S/O. MUSHTAQ AHMED
R/O. 178b, J. EXTENSION,
LAXMI NAGAR, DELHI 92.
5. MAULANA MOHAMMAD ALAM
S/O. MAUZ KHAN
R/O. 175, J. EXTENSION,
(MASJID FIRDOSE) LAXMI
NAGAR, DELHI 92.
6. MOHAMMAD SHAUKEEN
CS NO. 62/02 YUSUF KHAN VS. SARFARAZ 1/28
2
S/O. AZIM KHAN
R/O. 174B, J. EXTENSION,
(MASJID FIRDOSE), LAXMI
NAGAR, DELHI 92.
7. AKRAM
S/O. ABDUL HAFIZ
R/O. 212A, J. EXTENSION,
LAXMI NAGAR, DELHI 92.
Date of Institution : 06.02.2002
Date on which the judgment was reserved: 29.11.2012
Date of pronouncement of judgment : 29.01.2013
J U D G M E N T
1. Vide this judgment, I shall dispose off the suit for recovery of Rs. 4,95,000/ for malicious prosecution along with an application u/s 340 Cr.PC filed on behalf of defendant no. 6 for taking action against the defendant no. 1 and others for perjury / fabrication of documents.
2. Brief facts are it is stated that the plaintiff is a Law Graduate and is working on a Senior Post with Mahanagar Telephone Nigam Limited and is drawing a salary of Rs. 10,000/ and the plaintiff belongs to a respectable family. The plaintiff is also paying income tax for the last several years. The defendants had ill will against the plaintiff and his family members and they had malafide intention to harass and to cause loss to the plaintiff and the defendants intentionally and falsely implicated the plaintiff in the criminal case.
CS NO. 62/02 YUSUF KHAN VS. SARFARAZ 2/28 3
3. It is further stated that the defendant no. 2 is the real brother of defendant no. 1, defendant no. 3 is the mother of defendant no. 1 and defendants no. 4 to 7 are friendly with the defendants no. 1 to 3 and are also having business dealings with them. It is further stated that Wali Mohammad, father of defendants no. 1 and 2 and husband of defendant no. 3 was the President of the Managing Committee of Masjid Firdose and he has died on 07.03.2000 due to natural death. The defendant no. 5 is working for the last several years as Imam / Priest of Masjid Firdose, which was managed by a Committee headed by Wali Mohammad. The defendants no. 1 and 4 and deceased Wali Mohammad had been working jointly in building construction and other business activities.
4. It is further stated that the defendant no. 1 in collusion with defendants no. 2 to 7 with malafide intention and as a result of conspiracy and manipulation of all these defendants in collusion and with the help of police officials had lodged a false FIR No. 86/2000 dated 07.03.2000 in Police Station Shakarpur under Section 302/34 IPC. The contents of FIR and the conduct of the defendants wa such that it was clear that they had malice / ill will against the plaintiff and her family members.
5. It is further stated that without any legal justification and reasonable cause, the defendants got arrested the plaintiff in false case of murder of Wali Mohammad on 07.03.2000. The plaintiff was sent to Tihar Jail on 08.03.2000 and was released on CS NO. 62/02 YUSUF KHAN VS. SARFARAZ 3/28 4 Bail on 02.08.2000. It is stated that the police of PS Shakarpur in collusion with the defendants and as a result of conspiracy filed a charge sheet against the plaintiff and other persons under section 302, 308/34 IPC and the plaintiff was innocent and he was falsely implicated in that case.
6. It is further stated that after filing of the charge sheet, the plaintiff faced the criminal proceedings / charge in the court of Ld. Magistrate and the case was committed to the court of Sessions. It is stated that the case in which the plaintiff was an accused ultimately came for hearing before the Ld. ASJ, Karkardooma, Delhi, who found the plaintiff innocent and discharged the plaintiff vide order dated 07.02.2001. It is further stated that the plaintiff was prosecuted in the criminal case in FIR No. 86/2000 PS Shakarpur u/s 302, 308/34 IPC and was discharged on 07.02.2001 and the prosecution of the plaintiff ended in favour of the plaintiff on 07.02.2001 and the criminal proceedings of the plaintiff was without any reasonable and probable cause and with malafide intention and without any legal justification.
7. It is further stated that the plaintiff was defamed and his reputation suffered due to false prosecution and illegal arrest and the plaintiff had to spent huge money in litigation and defending herself and for payment of lawyer's fee, etc. The plaintiff had also suffered adversely in his service career and was suspended due to arrest and detention in the jail and due to criminal proceedings, he had suffered loss of reputation and monetary CS NO. 62/02 YUSUF KHAN VS. SARFARAZ 4/28 5 loss and had suffered tension and harassment, therefore the plaintiff has filed the present suit for malicious prosecution against the defendants and the plaintiff is entitled to the recovery of Rs. 4,95,000/ with interest @ 15% per annum with costs.
8. Common written statement was filed on behalf of the defendants no. 1 to 6, in which it is stated that the present suit is malafide and has been filed to exert pressure upon the defendants not to pursue the lawful remedy and for deterring them from making depositions during trial in case FIR No. 86/2000 registered under section 302/308 r/o. 34 IPC, PS Shakarpur, which was pending in the court of Ld. ASJ, Karkardooma, Delhi and the present suit is bad for misjoinder of parties and the defendants no. 2 to 6 were not in any way concerned with the lodging of FIR in question and the police had only examined the defendants no. 2 to 6 as witnesses u/s 161 Cr.PC and none of the defendants has yet been called upon to appear as the prosecution witness and make statement on oath during trial after framing of the charge, therefore none of the defendants can be said to have lodged any prosecution against the plaintiff.
9. It is stated that on the report of the incident made by the defendant no. 1 in respect of the murder of his father Late Wali Mohammad and the defendant no. 1 had suffered head injuries, the police registered the FIR No. 86/2000 and after carrying out and completing the investigation and being satisfied about the complicity of the plaintiff and other accused persons in the CS NO. 62/02 YUSUF KHAN VS. SARFARAZ 5/28 6 crime, the police arrested the accused persons including the plaintiff and submitted the charge sheet u/s 302 / 308 r/w 34 IPC against the six accused persons namely (i) Yusuf Khan S/o. Sh. Chanda Khan, (ii) Muskeen S/o. Sh. Yusuf Khan, (iii) Asfaq S/o. Sh. Yusuf Khan, (iv) Imran Khan S/o. Sh. Yusuf Khan, (v) Mst. Afsari w/o. Yusuf Khan and (vi) Ms. Salma D/o. Yusuf Khan. It is further statd that the defendant no. 1 had sustained head injuries and his father Wali Mohammad succumbed to the injuries in the assault. The defendant no. 1 had reported the matter to the police. The defendant no.1 and the other defendants who had witnesses the occurence and made the statement accordingly to the police during the investigation of the case cannot be said to have prosecuted the accused person maliciously particularly when there has been no judicial verdict to such effect.
10.It is not denied that Ld. ASJ, Karkardooma, Delhi, vide order dated 07.02.2001 discharged the accused persons except the accused Mustkeen Khan who was charged under section 308 IPC. It is further stated that against the said order of discharge, the criminal revision no. 109/2001 has been preferred in the Hon'ble High Court and it cannot be said that the said order of discharge has not become final till the pendency of the said revision petition.
11.It is further stated that the defendant no. 1 in the present case lodged the FIR with the police and the other defendants gave their version about the occurence to the police in their CS NO. 62/02 YUSUF KHAN VS. SARFARAZ 6/28 7 statements recorded during the investigation and none of the defendants can be said to have prosecuted the plaintiff and others because merely giving information to the police does not amount to launching prosecution against the plaintiff. In fact, it was the Investigating Agency which after completing the investigations, came to the conclusion that the plaintiff and others were required to be prosecuted for the crime in question. Therefore, none of the defendants is responsible for the acts of the police and no action lies against any of the defendants for the alleged malicious prosecution.
12.It is further stated that in view of the death of Wali Mohammad and the defendant no. 1 suffering serious head injuries for which the accused Mustkeen has been charged u/s 308 IPC, it cannot be said by any stretch of imagination that there was want of reasonable or probable cause for lodging the FIR against the offenders including the plaintiff.
13.On merits, the contents of the plaint have been denied and it is denied that the plaintiff had been falsely implicated in the case in order to cause loss to the reputation of the plaintiff and monetary loss and sufferings. It is further stated that the said FIR was correctly launched against the plaintiff, therefore the plaintiff is not entitled to the suit amount as prayed.
14.Thereafter, an application u/s 151 CPC was moved on behalf of the defendant no. 6 along with Vakalatnama and a separate CS NO. 62/02 YUSUF KHAN VS. SARFARAZ 7/28 8 written statement was filed on behalf of defendant no. 6. In the affidavit filed along with the said written statement, it was stated that initial written statement was not filed on behalf of defendant no. 6 and nor he authorized Sh. A. Hasan Advcoate to file written statement on his behalf.
15.It is stated in the written statement filed on behalf of the defendant no. 6 that on 07.03.2000 at about 3:30 PM, one Wali Mohammad the neighbourer of the defendant no. 6 had died due to heart attack and defendant no. 6 came to know that Wali Mohammad was brought to Walia Nursing Home. The defendant no. 6 was working at a place far away about 2.5 KM from the house of deceased Wali Mohammad and thereafter, he reached the Walia Nursing Home at about 4.30 PM on that day and he found Wali Mohammad dead in the said nursing home and defendants no. 1, 3 and 5 hatched a conspiracy to falsely implicate Mustkeen and all his family members in the murder of Wali Mohammad to take a revenge of their enmity.
16.It is further stated that no quarrel was mad as alleged in FIR No. 86/2000 between the family of defendants no. 1 to 3 and the plaintiff in presence of the defendant no. 6. The defendants no. 1 to 5 met together and made a plan to implicate the plaintiff and her family members and pursuaded the defendant no. 6 to be witness in the said case. It is stated that due to compulsion and pursuasion of the above said persons, the defendant no. 6 had got recorded his statement u/s 161 Cr.PC against the plaintiff and CS NO. 62/02 YUSUF KHAN VS. SARFARAZ 8/28 9 her family members and even now defendant no. 1 and his associates malafidely submitted the paper in the court under the forged signature of defendant no. 6. Therefore, it is stated that defendant no. 6 is not liable to pay any damages to the plaintiff and the plaintiff is not entitled to any relief.
17.Written statement was also filed on behalf of the defendant no. 7 Sh. Akram, in which it is stated that on 07.03.2000 at about 3:30 pm, one Wali Mohammad the neighbourer of the defendant no. 6 was died due to heart attack. The defendant no. 7 along with defendant no. 1 and defendant no. 5 carried Wali Mohammad to Walia Nursing Home, Laxmi Nagar, Delhi 92, where the doctor declared him dead. It is further stated that no quarrel was mad as alleged in FIR No. 86/2000 between the family of defendants no. 1 to 3 and the plaintiff in presence of the defendant no. 7. The defendants no. 1 to 5 met together and made a plan to implicate the plaintiff and her family members and pursuaded the defendant no. 7 to be witness in the said case.
18.It is further stated that due to compulsion and pursuasion of the above said persons, the defendant no. 7 has got recorded his statement u/s 161 Cr.PC against the plaintiff and her family members. It is further stated that the defendant no. 7 is not liable for any damages to the plaintiff as the defendant no. 7 was forced to be eye witness to the aforesaid case by the other above said defendants. Therefore, the defendant no. 7 is not liable to pay any damages to the plaintiff and the plaintiff is not entitled to any CS NO. 62/02 YUSUF KHAN VS. SARFARAZ 9/28 10 relief as claimed.
19.Separate replications has been filed on behalf of the plaintiff to the written statements of the defendants no. 1 to 6 and defendant no. 7, in which the allegations made in the written statements have been denied and those made in the plaint have been reiterated as correct.
20.In the application u/s 340 Cr.PC, it is stated on behalf of defendant no. 6 that in the present case, forged and fabricated amended written statement was filed on 11.04.2002. In the amended written statement, the applicant / defendant no. 6 had not put his signatures and defendants no. 1 5 hatched a criminal conspiracy and in pursuance of the criminal conspiracy, they manipulated / fabricated the amended written statement on behalf of defendants no. 1 to 6, but in fact the defendant no. 6 Mohd. Shaukeen had neither signed the written statement nor had signed its verification and the same is forged and fabricated document. The written statement was also signed by one Sh. Tabrez Alam, who claimed himself to be counsel but the defendant had never executed any power of authority / vakalatnama in his favour and the said Vakalatnama was filed in the court of Ld. ADJ on 21.07.2004 was having the forged signatures of defendant no. 6. The filing of forged and fabricated amended written statement and vakalatnama is a serious offence and therefore, defendants no. 1 to 5 have committed offences u/s 120B / 420 / 468 / 471 IPC and it is stated that stern action should CS NO. 62/02 YUSUF KHAN VS. SARFARAZ 10/28 11 be taken against them for committing such offence, as per settled law against the defendants no. 1 to 5 and Mr. Tabrez Alam Advocate.
21.Separate replies have been filed to the said application on behalf of respondent no. 1, 3 to 7 and respondent no. 2. In the reply filed on behalf of respondents no. 1, 3 to 7, it is stated that the applicant Mohd. Shaukeen had appeared in the FIR no. 86/2000 as PW7 and he was cross examined by Ld. counsel for the plaintiff Sh. S. P. Singh Chaudhary and in his cross examination, he admitted that three civil cases had been filed against him by Yusuf Khan, Salma and Afsari and he had filed the power of attorney of his counsel in the said cases. Sometimes he put his signatures in Hindi and sometimes he put his signatures in English and it was correct that the said three cases are being contested by him and are pending at present at Tis Hazari Court. It is further stated that the present applicant / defendant no. 6 has been won over by the plaintiff and at the instance of the plaintiff, he had moved false and fabricated application alleging that he never signed any written statement and never authorized any counsel to file written statement on his behalf, therefore no offence is made out against the defendants. It is stated that if respondents no. 1 to 3 were not his lawyers, then who was his advocate and why the applicant has not disclosed the name of the lawyer who had filed the power of attorney on his behalf. Therefore his application is liable to be dismissed with heavy costs.
CS NO. 62/02 YUSUF KHAN VS. SARFARAZ 11/28 12
22.In the reply filed by respondent no. 2, it is stated that the said application is false and frivolous. He has signed the amended written statement and vakalatnama, which is proved from his own statement on oath on 12.04.2005 in FIR bearing no. 86/00, certified copy of which has been filed on the record. In view of the said statement, the allegations made by the defendant no. 6 are false and frivolous and are liable to be dismissed.
23.From the pleadings of the parties, following issues were framed on 02.09.2002 : ISSUES
1. Whether the suit is liable to be dismissed being pre mature as alleged by the defendants? OPD
2. Whether the plaintiff was prosecuted without any reasonable and probable cause? OPP
3. Whether the plaintiff is entitled to recover any amount by way of damage, if so then how much?
4. Relief.
24.Plaintiff in support of his claim has examined himself as PW1. No evidence was lead on behalf of defendants no. 1 to 4 despite repeated opportunities. Consequently, their evidence was closed vide order dated 18.09.2008. Thereafter, an application u/s 151 CPC was moved on behalf of the defendants no. 1 to 4 in the present case for recalling the order dated 18.09.2008, which application was dismissed vide order dated 28.02.2012. Prior to that on 16.04.2008, the evidence on behalf of defendants no. 1 to CS NO. 62/02 YUSUF KHAN VS. SARFARAZ 12/28 13 5 was closed. However, later on, on the application of the defendants no. 1 to 4, the order dated 16.04.2008 was set aside and defendants no. 1 to 4 were allowed to lead evidence. However, no application was filed on behalf of the defendant no. 5 to lead any evidence. Defendant no. 6 has also filed affidavit in evidence and was examined as D6W1. He was cross examined by Ld. counsel for the plaintiff on 12.05.2008, his cross examination qua defendants no. 1, 3 and 4 was deferred till 21.05.2008. His further cross examination could not be completed on 21.05.2008, therefore his evidence cannot be read, as per settled law. Similarly, affidavit of defendant no. 7 was also filed and was tendered as D7W2 on 12.05.2008 and his cross examination qua defendants no. 1, 3 and 4 was also deferred. Thereafter, he did not appear for his further cross examination, therefore his evidence cannot be read, as per settled law.
25.I have heard Ld. counsel for the plaintiff Sh. S. P. Singh Chaudhary, Ld. counsel for defendants no. 1 to 4 Sh. G. M. Farooqui and Proxy counsel for the defendants no. 6 and 7 Sh. Anuj Trivedi. Ld. counsel for the defendants no. 6 and 7 despite being present on 29.11.2012 did not address the final arguments. In these circumstances, it appears that they have got nothing to say in this matter except what is already on the record. I have also gone through the brief synopsis filed by the plaintiff and defendants no. 1 to 4. Ld. counsel for the plaintiff has relied upon following judgments in support of his case :
1. 2008 (9) SCALE 182 CS NO. 62/02 YUSUF KHAN VS. SARFARAZ 13/28 14
2. JT 1994 (3) SC 492
3. 1994 (3) JT SC 423
4. 1970 Cr.LJ 819 / AIR 1970 ORISSA 91
5. AIR 1957 MADRAS 646
6. (2007) 14 SCC 568
7. Visheshwar Shankarrao Deshmukh Vs. Narayan Vithoba Patil Bombay High Court on 6th May, 2004
8. Matlum Ahmed & Anr Vs. Govt. of NCT of Delhi & Anr. Date of Decision 10th April, 2012
9. AIR 2004 RAJASTHAN 30
10.RCR 2011 (3) 201 Punjab and Haryana High Court 11.2011 (5) RCR Civil 485 Punjab and Haryana High Court 12.2012 Crl. L.J. 3934."
26.The plaintiff has to prove the following ingredients to make out the case for malicious prosecution, in view of the judgment relied by the plaintiff "AIR 1970 ORISSA 91" : "There is no dispute that to succeed in a suit for damages for malicious prosecution, it is incumbent on the plaintiff to prove (1) that he was prosecuted by the defendant; (2) that the prosecution complained of terminated in his favour if it is capable of so terminating; (3) that there was absence of reasonable and probable cause for initiating the prosecution against the plaintiff and (4) that the prosecution was malicious."
CS NO. 62/02 YUSUF KHAN VS. SARFARAZ 14/28 15
27. My issues wise findings are as under : ISSUE NO. 1 The onus to prove this issue was upon the defendant.
28.The defendants had to show to the court that the present case was premature. The FIR No. 86/2000 dated 07.03.2000 lodged with PS Shakarpur u/s 302/34 IPC is admitted. It is also admitted that the police during the course of investigation also recorded the statements of witnesses u/s 161 Cr.PC. It is also admitted that vide order dated 07.02.2001, Ld. ADJ discharged the present plaintiff (who was accused no. 4 in the said FIR bearing no. 86/00), vide order dated 07.02.2001. It is also admitted that a revision petition filed by the complainant Sarfaraz bearing Crl. Rev. No. 109/2001 was dismissed vide order dated 17.05.2004 and it is also admitted that an SLP was also preferred against said order before the Supreme Court of India, which was also dismissed vide order dated 23.08.2004. Therefore, the order of discharge qua the plaintiff has become final, though the present suit has been filed prior to the final disposal of the SLP before the Hon'ble Supreme Court and Crl. Rev. Petition before the Hon'ble High Court. In any case, in view of the fact that the order of discharge had obtained finality, the present suit for malicious prosecution filed by the plaintiff cannot be said to be premature. Therefore, this issue is decided in favour of the plaintiff and against the defendants.
CS NO. 62/02 YUSUF KHAN VS. SARFARAZ 15/28 16 ISSUE(s) NO. 2 & 3 These issues are taken up together as they are interconnected with each other.
29.As discussed above, in the present case, the FIR no. 86/00 is admitted. It is also admitted that the statements of defendants were recorded during the course of investigation of the said FIR by the police u/s 161 Cr.PC. The order of discharge as discussed above in the above FIR, order in the Crl. Rev. Petition passed by the Hon'ble High Court and the order dismissing the SLP are also admitted. Arrest of the present plaintiff on 07.03.2000 is admitted and it is also admitted that she was released on bail on 18.03.2000. It is also admitted that criminal machinery was set into motion on the complaint of defendant no. 1 Sarfaraz.
30.The defendant no. 1 Sarfaraz made the following complaint to the police on 07.03.2000 : "That he was resident of the place written in his complaint and was studying in Dayal Singh College, B.A., IInd Year and today i.e. on 07.03.2000 at about 4:15 to 4:30 PM, his younger brother Mohd. Akil was throwing water with the balloons and some water fell on one Mustkeen. The said Mustkeen in turn poured a bucket of water on Mohd. Akil i.e. his brother. As a result of which, both quarreled with each other. He tried to intervene in the quarrel, at that time Muskeen assaulted him with the iron pipe on his head. During that time, his father Wali CS NO. 62/02 YUSUF KHAN VS. SARFARAZ 16/28 17 Mohammad also came there, but at the same time, Ashfaq also came there and started beating him, after sometime Yusuf Khan and Imran Khan also reached there and Yusuf Khan caught hold of neck of his father and Mustkeen and Ashfaq caught hold of his father by arms and Imran assaulted his father with a fist blow. As a result of which, his father feel down unconscious. There was a business rivalry between them. As a result, there used to be quarrel between them and family of Yusuf Khan wanted to show them down in the eyes of people. His father was declared dead, therefore action should be taken against Ashfaq, Mustkeen, Yusuf Khan and Imran, who were responsible for the death of his father."
31.On the said statement of Mohd. Sarfaraz, an FIR u/s 302/34 IPC bearing no. 86/00 was registered at PS Shakarpur and action was taken up on the said FIR. During the investigation, statements u/s 161 Cr.PC of the remaining defendants no. 2 to 7 were recorded. Certified copies of which are admittedly filed on the record, which are not disputed by any of parties. In the initial statement of complainant Mohd. Sarfaraz, there was no mention of Salma as well as Afsari, their names cropped up in the statements u/s 161 Cr.PC recorded by IO of Mohd. Akil and Raisa Begum. As discussed above, vide order dated 07.02.2001, both the female members were discharged from the said case for the same reason that their names were not found in the initial statement of the complainant Sarfaraz and the fact that none of the injured persons were medically examined. As stated above, CS NO. 62/02 YUSUF KHAN VS. SARFARAZ 17/28 18 to make a case for malicious prosecution, the plaintiff has to prove following ingredients that (1) he was prosecuted by the defendant; (2) that the prosecution complained of terminated in his favour if it is capable of so terminating; (3) that there was absence of reasonable and probable cause for initiating the prosecution against the plaintiff and (4) that the prosecution was malicious.
32.Regarding the first ingredient, Ld. counsel for the plaintiff has relied upon a judgment "AIR 1957 Madras 646" in which it has been held as under : "A prosecutor has been described as a man actively instrumental in putting the law in force. A person would be a prosecutor where he files the complaint himself or has it filled through the instrumentality of an agent or a counsel. A private person at whose instance and report the prosecution is launched by the police is a prosecutor within the meaning of the present context."
33. In view of the law laid down in the said judgment, where it has been held that the prosecutor is a person who is actively instrumental in putting the law into force and a person would be a prosecutor where he files the complaint himself or has it filled through the instrumentality of an agent or a counsel. Applying the ration of aforesaid law mentioned in the judgment relied upon by Ld. counsel for the plaintiff in the present suit, the first ingredient is only made out qua the defendant no. 1 as he was the CS NO. 62/02 YUSUF KHAN VS. SARFARAZ 18/28 19 person on whose statement recorded u/s 154 Cr.PC, the FIR was lodged and criminal machinery was set into motion. The criminal machinery was not set into motion on the statements of defendants no. 2 to 7, as only the statements of defendants no. 2 to 7 during the course of proceedings were recorded by the investigating officer u/s 161 Cr.PC.
34.In any case, it is settled law that the statements recorded u/s 161 Cr.PC by the police or the investigating officer during the investigation of any case are not substantive evidence perse, they can only be used to contradict or confront the witnesses at the time of their deposition as a previous statement in writing to test their veracity. Further these statements recorded by the IO during the course of investigation u/s 161 Cr.PC are not required to be signed by the witnesses, so as to maintain their impartiality and neutrality during the trial, so that they should speak truth in the trial and should not feel bound by their signed statements if allowed to be recorded by the IO or police. Further, merely because the plaintiff was discharged in the present case does not ipsofacto leads to to the conclusion that there was a conspiracy hatched between the defendant no. 1 and defendants no. 2 to 7 to falsely implicate the plaintiff in the FIR bearing no. 86/00, as there is no evidence direct or otherwise from which it can be inferred that there was any conspiracy between the defendant no. 1 and defendants no. 2 to 7 to falsely implicate the plaintiff into above FIR. All that was done during the investigation of the said FIR, was that the statement of said witness were recorded CS NO. 62/02 YUSUF KHAN VS. SARFARAZ 19/28 20 u/s 161 Cr.PC and nothing more, which are not substantial evidence in themselves as pointed out above, therefore the plaintiff has failed to prove that she was prosecuted by the defendants no. 2 to 7. Thus plaintiff has only been able to prove that she was prosecuted by the defendant no. 1 in view of the above discussion. This ingredient is decided thus.
35.Regarding the second ingredient, as discussed above, the plaintiff already stands discharged from the said FIR, vide order dated 07.02.2001, which was upheld by the Hon'ble High Court and by the Hon'ble Supreme Court, vide order datd 23.08.2004, therefore the prosecution launched against the plaintiff has terminated and has been finally set at rest against the plaintiff. Therefore the second ingredient stands proved by the plaintiff.
36.Regarding the third ingredient, the plaintiff has appeared in the witness box and has reiterated the contents of her plaint as PW1. She has also been cross examined on behalf of defendants no. 1to 5 and 6 and 7. Though no evidence has been lead on behalf of the defendants as discussed above, yet the plaintiff has to stand on her own legs to prove her case. She cannot rely upon the weakness of defendants' case to prove her case. It is the admitted case of the parties that FIR bearing no. 86/00 was launched regarding the alleged incident dated 07.03.2000 by the defendant no. 1 Sarfaraz on whose statement recorded u/s 154 Cr.PC, a Ruka was prepared by the police and FIR No. 86/00 PS Shakarpur was launched u/s 302/34 IPC. As per said statement CS NO. 62/02 YUSUF KHAN VS. SARFARAZ 20/28 21 recorded by the police of the defendant no. 1, consequent FIR was registered which the complainant / defendant no. 1 bonafidely believed to be true, in which one of the accused Mohd. Mustkeen is also facing trial u/s 308 IPC. So it cannot be said in these circumstances that no such incident took place at all. It may be that the trial court at the stage of passing order of discharge did not except the version of the complainant and other witnesses recorded u/s 161 Cr.PC regarding the manner and presence of accused persons mentioned in the chargesheet at the time of incident.
37.The trial court did not reach the said conclusion discharging the present plaintiff on the basis of full fledged trial, but on primafacie view of the matter on the ground that no grave suspicion arise regarding the involvement of accused Yusuf Khan by making the following observation : "From the statements of the witnesses recorded by the police including that of the complainant there is no evidence on record that any of the accused persons in the instant case at all intended to cause death of the deceased Wali Mohd. who actually died. There is also no evidence on record that any of the accused persons at all caused any injury on the person of the deceased which could be sufficient in the ordinary course of nature to cause his death. There is ample medical evidence on record to show that deceased died as a result of heart attack and had not at all received any internal or external injury on his person and same is also clear from CS NO. 62/02 YUSUF KHAN VS. SARFARAZ 21/28 22 postmortem report on record. In these circumstances primafacie there is no evidence on record to proceed against any of the accused persons for offence punishable u/s 302 of IPC cannot be framed against any of the accused persons.
But in the instant case the evidence on record shows that Mushtkeen gave an iron pipe blow on the head of the complainant and by that time except the complainant Sarfaraz and his brother Mohd. Akil none of the other accused persons was at all present and the other accused persons arrived at the place of occurrence later on and as such the other accused persons cannot in any manner be liable for the said act of accused Mushtkeen.
In view of the above discussion since Mushtkeen accused had caused head injury on the person of the complainant in a fight that was taking place between Mushtkeen and the brother of the complainant, I am of the view there is a case to proceed against accused Mushtkeen only for offence punishable u/s 308 of the IPC and, therefore all the other accused persons in this case are hereby discharged and charge be framed on a separate sheet against accused Mushtkeen only for offence punishable u/s 308 of IPC."
38. As discussed above, the following observation made by the Ld. ASJ, Delhi, while passing the order of charge on 07.02.2001 was not made after full fledged trial i.e. after the recording the CS NO. 62/02 YUSUF KHAN VS. SARFARAZ 22/28 23 statements of the prosecution witnesses and after recording the statement of IO and cross examination by the defence. Ld. ASJ only discharged the plaintiff in view of the observation made by him that no grave suspicion arises regarding the involvement of plaintiff in the incident dated 07.02.2001. The said order was passed on the prima facie view of the matter and not on merits after appreciation / analysis of the evidence of the witnesses on oath, where in the prosecutor as well as the defence would have had liberty to cross examine the witnesses to check the veracity of their statements recorded by the IO including the explanation of the IO given in his evidence regarding the manner and circumstances in which he recorded their statements. Further the father of the complainant Mr. Wali Mohammad had also died due to the shock received in the incident as stated in the postmortem report. Though, as per the postmortem report, he had not died due to any injury received in the incident, but due to massive heart attack, but at the same time, the complainant had held the plaintiff and other accused persons responsible for the death of his father, though the charge was only framed against Mohd. Mustkeen u/s 308 IPC.
39.In these circumstances, it was the incumbent duty of the IO to find out the truth regarding the matter in which the FIR No. 86/00 was registered at the PS Shakarpur. After registration of FIR, the IO must have gone to the spot and must have thoroughly examined the allegations made in the FIR and he must have inspected the spot, recorded the statements of the witnesses u/s CS NO. 62/02 YUSUF KHAN VS. SARFARAZ 23/28 24 161 Cr.PC by making inquiries from persons living in the locality. The IO must have also prepared the site plan of the spot and must have collected / lifted the relevant exhibits and must have collected the scientific evidence and then only after thorough investigations must have filed the charge sheet in the above FIR u/s 302 / 308 / 34 IPC and the said charge sheet must have been vetted by the concerned DCP and is forwarded by the ACP concerned.
40.In the present case, if full fledged trial had taken place, then court would have also asked the IO certain material questions regarding the manner of his investigation as also the other accused persons that is the defence, in the case of full fledged trial, the witnesses whose statements have been recorded u/s 161 Cr.PC would have been cross examined at length to test their veracity, only if the court would have reached the conclusion after analysis of entire evidence on the record after trial that the accused persons had been falsely implicated at the instance of complainant i.e. defendant no. 1 and other prosecution witnesses, then only it could have been said that the accused persons including plaintiff had been prosecuted without any just and probable cause.
41.As discussed above, the defendant no. 6 and defendant no. 7 had placed their affidavits on record as D6W1 and D7W2. Since their cross examination could not be completed, therefore their evidence is not admissible as per settled law. In any case, even if CS NO. 62/02 YUSUF KHAN VS. SARFARAZ 24/28 25 their evidence would have so admissible for the sake of arguments, even then it is not clear as which version of defendant no. 6 and 7 was correct, whether their first version which was given to the police u/s 161 Cr.PC supporting the incident or the version stated in their affidavits that they had been pressurized by the defendants no. 1 to 5 was correct. In any case, not much reliance can be placed on the witnesses who blow hot and cold at the same time. In fact, defendant no. 6 and defendant no. 7 stated that in their affidavit that they had also appeared as witnesses in the trial of the Mohd. Mustkeen in the FIR No. 86/00 and there they have given a false account there. Therefore it is not clear whether they were speaking truth now or whether they were speaking truth at the time of recording their statements in the trial of said case. In these circumstances, it cannot be said that the plaintiff and other accused persons chargesheeted in the FIR No. 86/00 had been prosecuted without just and probable cause. This ingredient is decided against the plaintiff.
42.Regarding the fourth ingredient, the defendant no. 1 / complainant has himself mentioned in FIR that there was a business rivalry between them and as a result thereof, there used to be frequent quarrels between them. The fact that there was previous enmity between the parties i.e. accused and complainant persons is not enough. As the death of father of the complainant indeed took place may be due to shock received due to incident, though it has been proved as per the CS NO. 62/02 YUSUF KHAN VS. SARFARAZ 25/28 26 postmortem report that he died of heart attack i.e. a natural cause. However at the same time, it cannot be said that the complainant would have falsely implicated the plaintiff and other accused persons to secure points / mileage over the accused party, as there was no reason for the complainant party to sacrifice the life of their father just to falsely implicate accused persons in the present FIR. Therefore, it cannot be said by any amount of reasoning that the accused persons including the plaintiff had been maliciously prosecuted in the said FIR. In any case, it is admitted fact that one of the accused persons in said FIR Mohd. Mustkeen is facing trial in the said FIR. Therefore, it is yet to be established by a conclusive judgment that no such incident as alleged in the complaint had never taken place or was figment of imagination of mind of complainant party. Therefore this ingredient is also decided in favour of the defendants and against the plaintiff. It follows as a corollary to the same that the plaintiff is not entitled to any damages as claimed in present suit.
43.Consequently, these issues are decided against the plaintiff and in favour of the defendants.
RELIEF
44.In view of my findings on the above issues, the suit of the plaintiff stand dismissed with no order as to costs. Decree sheet be prepared accordingly.
45.Regarding the application u/s 340 Cr.PC and other relevant CS NO. 62/02 YUSUF KHAN VS. SARFARAZ 26/28 27 provisions of IPC filed on behalf of defendant no. 6 for taking action against the defendant no. 1 and others for perjury / fabrication of documents filed in S. No. 60/02. It is the stand of the applicant / defendant no. 6 that defendants no. 1 to 5 had hatched a criminal conspiracy and in pursuant to that criminal conspiracy, they manipulated / fabricated the amended written statement on behalf of defendants no. 1 to 6, whereas the defendant no. 6 Mohd. Shaukeen had never signed the written statement or its verification and the written statement was also signed by one Sh. Tabrez Alam stated to be his counsel and since the aforesaid person by hatching criminal conspiracy in connivance with Mohd. Nasim and A. Hasan Advocates forged the signatures of defedant no. 6, therefore the aforesaid persons had committed the forgery, perjury and fabrication of document i.e. amended written statement. Reply to the said application has been filed on behalf of the defendants no. 1, 3 to 7 and Mr. A. Hasan Advocate. As discussed above in the main suit no. 60/10, the evidence of D6W1 Mohd. Shaukeen cannot be read in evidence, as his evidence was deferred on 12.05.2008 and he did not turn up for his cross examination qua defendants no. 1, 3 and
4. Therefore the averments mentioned in the present application have not been substantiated, even otherwise no evidence has been lead by the above applicant in the present contempt petition to prove the same, nor he had shown any desire to lead any evidence in the aforesaid application during the pendency of the aforesaid application.
CS NO. 62/02 YUSUF KHAN VS. SARFARAZ 27/28 28
46.Since no evidence has been lead by the applicant on his application u/s 340 Cr.PC and since the allegations made in the application have been vehemently denied by the other party, therefore it cannot be said without leading evidence on record that the defendants no. 1 to 5 and Mohd. Naseem Advocate had committed perjury as alleged in the present application by forging the signatures of applicant / defendant no. 6 Mohd. Shaukeen on the amended written statement. In any case, there is no iota of evidence on the record, even no Hand Writing Expert has been summoned or has opined that the admitted signatures of the applicant / defendant no. 6 were not matching with those appearing in the amended written statement. In these circumstances, that allegations made by him in the present application that the amended written statement was not having his signatures, and the same were forged by the defendants no. 1 to 5 in connivance with their counsel Sh. A. Hasan and Mohd. Naseem Advocates have not been substantiated, therefore the application u/s 340 Cr.PC has no merits, same stands dismissed.
47.File be consigned to the record room.
ANNOUNCED IN THE OPEN (Sanjeev Aggarwal)
COURT ON 29.01.2013 ADJ(Central03) / Delhi
29.01.2013
CS NO. 62/02 YUSUF KHAN VS. SARFARAZ 28/28