Delhi District Court
State vs . Hashim & Anr. on 18 July, 2023
IN THE COURT OF METROPOLITAN MAGISTRATE-02,
NORTH EAST DISTRICT, KARKARDOOMA COURTS,
DELHI
PRESIDED BY: SH. VIPUL SANDWAR
JUDGMENT
FIR NO. : 525/2000, U/s 324/34 IPC
PS : SEELAMPUR
A. CIS No. of the Case : 460729/2015
B. Date of Institution : 27.08.2002
C. Date of Commission of : 21.10.2000
Offence
D. Name of the complainant : Madan S/o Asha Ram, R/o A-19,
Gali no.1, New Usmanpur, Delhi
E. Name of the Accused, his : (1) Prem Pal S/o Gulab Singh,
Parentage & Addresses R/o C-1/86, Welcome, Delhi
(declared PO vide order dated
28.09.2006) and (2) Hashim S/o
Yunus, R/o G-14/98, New
Seelampur, Delhi
F. Representation on behalf of : Ms. Shivani Joshi, Ld. APP
State
G. Offence complained of : U/s 324/34 IPC
H. Plea of the Accused : Pleaded not guilty and claimed
trial.
I. Order reserved on : 31.05.2023
J. Date of Order : 18.07.2023
K. Final Order : Acquitted
State vs. Hashim & Anr. FIR No525/2000 PS Seelampur Page No. 1 / 13
Brief Statement of Reasons for Decision of the Case
1. The present complaint was registered on the complaint of complainant Madan wherein he has stated that he is the student of class 9 and he was coming back to his house alongwith his friend Sonu and Dhiraj by bus. At about 01:45 pm when they reached ISBT pul, one co-passenger put his foot on the foot of the complainant. On being objected by the complainant and an altercation took place and friends of the complainant intervene. The co-passenger accused and his friend attacked on the cheeks of the complainant with some sharp edged object. They also attacked Dhiraj on his left hand and Sonu on his right hand. They were apprehend by the people and produced before the police.The accused persons were charge-sheeted for offence punishable under Section 324/34 IPC.
2. FIR was registered and has been investigated by the officials of Police Station Seelampur and IO/Inspector Kamal Kishore filed the charge sheet against the accused upon which cognizance was taken on 27.08.2002 by the learned Predecessor of this Court.
3. Accused appeared before the Court and copy of charge- sheet along with other documents under Section 207 Cr.P.C. was supplied to him.
4. Accused Prem Pal was declared a proclaimed person by Ld. Predecessor of this Court vide order dated 28.09.2006, charge was framed vide order dated 27.05.2009 only against accused Hashim for the offence punishable Under Section 324/34 of the IPC against accused persons by the learned Predecessor of State vs. Hashim & Anr. FIR No525/2000 PS Seelampur Page No. 2 / 13 this Court, to which, the accused persons pleaded not guilty and claimed trial.
5. Thereafter, matter was listed for Prosecution Evidence. The Prosecution has examined a total of 08 witnesses, their testimonies in brief as follows:
(i) PW1 Madan is the complainant in the present case. He has stated that incident pertains to the month of August/October, 2002. On the day of incident he alongwith his friends Sonu and Dhiraj were coming to their house from ISBT in a bus. At about 12:00 noon - 01:00 pm when the bus reached ISBT bridge near police post accused Hashim put his foot on the foot of the complainant. When the complainant asked him to remove he stated that "toh kya ho gaya" and altercation took place and Sonu and Dhiraj intervened. Accused took out some sharp edged weapon like knife from his pocket and gave blow on the face of the complainant and on the hands of his friends. Blood started oozing from their body and public persons apprehended the accused and gave them beatings. The bus was stopped at police booth and the accused was handed to police officials. Police took him to the hospital where he was medically examined. Police arrested the accused in his presence and recorded his statement.
Since the witness was partly resiling from his earlier statement, Ld. APP for State put questions in the nature of cross- examination after seeking permission of this Court. He stated that incident pertains to 21.10.2000 at about 01:45 pm. He also stated that one another person accompanied the accused who caused injuries on the right hand of his friend Sonu. The witness was not cross examined by the accused despite being given an State vs. Hashim & Anr. FIR No525/2000 PS Seelampur Page No. 3 / 13 opportunity.
(ii) PW2 Dhiraj is the friend of the complainant and stated that incident pertains to October 2000. On the day of incident he alongwith his friends Madan and Sonu were coming to their house from ISBT in a bus. At about 01:30 pm when the reached ISBT bridge some altercation took place between Madan and accused Hashim. He and Sonu tried to intervene and accused Hashim took out some sharp edged weapon and gave its blow on the face of Madan. Accused Hashim was also accompanied by another accused. Both the accused caused injuries on his left hand and on the hand of Sonu. Bus stopped near police post. The accused persons who were apprehended by the public were handed over to the police. Since the witness was partly resiling from his earlier statement, Ld. APP for State put questions in the nature of cross-examination after seeking permission of this Court. Despite that he could not confirm the date of incident as 21.10.2000. He conceded that accused caused injury on his left hand and the other accused caused injury on the right hand of the Sonu. The witness was not cross examined by the accused despite being given an opportunity.
(iii) PW3 ASI Ram was the Duty Officer and on 21.10.2000 at about 04:20 pm he received a rukka through Ct. Vijender sent by SI Kamal Kishore. On the basis of rukka he registered the present FIR and endorsed the rukka. He handed over the copy of FIR and original rukka to Ct. Vijender for giving the same to the IO. The witness was not cross examined by the accused despite being given an opportunity.
(iv) PW4 Inspector Kamal Kishore is the IO in the present case. On 21.10.2000 investigation with respect to DD no.11A State vs. Hashim & Anr. FIR No525/2000 PS Seelampur Page No. 4 / 13 was marked to him regarding a quarrel at Seelampur picket. He alongwith Ct. Vijender reached the spot i.e. ISBT road, near police picket, Seelampur. There they met the complainant alongwith Dhiraj and Sonu. They produced accused Hashim and Prem Pal. Complainant narrated the entire incident. The witness correctly identified the accused Hashim in the Court. He recorded the statement of the complainant, prepared rukka and handed over the same to Ct. Vijender for getting the FIR registered. He rushed the injured persons to GTB hospital where the doctor opined the nature of injures as simple. He collected their MLCs. Recorded statements of Sonu, Dhiraj and Ct. Vijender. He arrested both the accused and conducted their personal search. He searched for the weapon but did not find it. The accused were released on police bail. He completed the investigation and prepared the chargesheet and filed it before the Court. The witness was not cross examined by the accused despite being given an opportunity.
(v) PW5 Dr. Adarsh on 21.10.2000 at about 03:30 pm he examined one injured Chander Shekhar brought by Ct. Vijender. He examined injured Sonu and opined the nature of injury as simple caused by sharp edged weapon. The witness was not cross examined by the accused despite being given an opportunity.
(vi) PW6 HC Vijender on 21.10.2000 he was on emergency duty with SI Kamal Kishore. He reached the spot and found complainant alongwith Dhiraj and Sonu in injured condition who produced accused Hashim and Prem Pal. He went to the GTB hospital and collected MLCs of the injured. He came back to the spot and handed the MLC to the IO. IO prepared rukka, handed over the same to him for registration of FIR. He went to the PS, State vs. Hashim & Anr. FIR No525/2000 PS Seelampur Page No. 5 / 13 got the FIR registered and came back to the spot and handed over the copy of FIR and rukka to the IO. The witness was not cross examined by the accused despite being given an opportunity.
(vii) PW7 Dr. V. K. Jain on 21.10.2000 at about 03:30 pm he examined patient Dhiraj brought by Ct. Vijender. He opined the nature of injury as simple. The witness was not cross examined by the accused despite being given an opportunity.
(viii) PW8 Dr. Banarsi identified the handwriting and signatures of Dr. M. K. Hira. The witness was not cross examined by the accused despite being given an opportunity.
6. Thereafter, Prosecution Evidence was closed on 26.11.2022 and on the same day statement of accused under section 313 Cr. PC read with section 281 Cr. PC was recorded. Accused examined himself as defence witness. His testimony in brief as follows:
(i) DW1 Hashim has deposed that on 21.10.2000 he had gone to give lunch to his father who was working at bank near St. Stephan Hospital, Tis Hazari. At about 01:00 pm he boarded the bus towards Seelampur. A scuffle broke out at the back end of the bus and he quietly moved away from the spot. He sustained injuries on his eye due to the scuffle. He was taken to GTB hospital. He stated that he does not know the complainant or co-
accused Prem Pal. He has stated that he was not carrying any sharp instrument and nothing was recovered from him during investigation. In his cross-examination by Ld. APP for State he has denied the suggestion that he was beaten by public on the day of incident and had sustained injuries. He also denied the suggestion of deposing falsely being an interested witness.
State vs. Hashim & Anr. FIR No525/2000 PS Seelampur Page No. 6 / 137. DE was closed on 27.03.2023 and matter was thereafater, listed for final arguments. Final arguments heard. This Court has thoughtfully considered the material on record and arguments advanced with due circumspection.
8. Section 324 IPC has been defined as follows:
"324. Voluntarily causing hurt by dangerous weapons or means.--
Whoever, except in the case provided for by section 334, voluntarily causes hurt by means of any instrument for shooting, stabbing or cutting, or any instrument which, used as weapon of offence, is likely to cause death, or by means of fire or any heated substance, or by means of any poison or any corrosive substance, or by means of any explosive substance or by means of any substance which it is deleterious to the human body to inhale, to swallow, or to receive into the blood, or by means of any animal, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both."
9. The essential ingredients which the Prosecution is required to prove to establish the guilt of accused beyond reasonable doubt for offence punishable under Section 324 IPC are as under :
(1) voluntarily causing a hurt;
(2) The hurt shall not be covered as mentioned in section 334 IPC.
(3) the hurt must have been caused by any instruments for shooting, stabbing, cutting or by instrument which can be used as weapon of offence likely to cause death, or by means of fire or any heated substance, or by means of poison, or any coercive substance, or by means of any exclusive substance, State vs. Hashim & Anr. FIR No525/2000 PS Seelampur Page No. 7 / 13 or by means of any substance which is deleterious to human body to inhale / swallow / receive in blood, or by means of any animal."
10. In Mathai v. State of Kerala, (2005) 3 SCC 260 :
2005 SCC (Cri) 695 : 2005 SCC OnLine SC 87 at page 263, Hon'ble Supreme Court has observed that:
"Some hurts which are not like those hurts which are mentioned in the first seven clauses, are obviously distinguished from a slight hurt, may nevertheless be more serious. Thus a wound may cause intense pain, prolonged disease or lasting injury to the victim, although it does not fall within any of the first seven clauses. Before a conviction for the sentence of grievous hurt can be passed, one of the injuries defined in Section 320 must be strictly proved, and the eighth clause is no exception to the general rule of law that a penal statute must be construed strictly."
11. Now this Court proceeds to appreciate the evidence brought on record by the Prosecution.
12. In the present case, the prosecution has relied on the testimonies of complainant PW1 and his friend PW2. PW1 has deposed in his examination in chief on 26.08.2010 that on the day of incident accused Hashim stepped on his foot and on being objected an altercation took place. His friends Sonu and Dhiraj intervened. 'Accused' took out some sharp edged weapon like knife from his pocket and gave his blow on the face of the complainant and on the hands of his friends. PW1 could not remember the date or the time of the incident. It was only when questions in the nature of cross-examination were put to him by State vs. Hashim & Anr. FIR No525/2000 PS Seelampur Page No. 8 / 13 Ld. APP for State he clarified that accused caused injuries on his face with some sharp edged weapon and on the left hand of his friend Dhiraj and one person accompanied the accused caused injuries to his friend Sonu. It can be inferred from this that accused Hashim gave the injury from sharp edged weapon on the cheeks of the complainant and left hand of Dhiraj. Perusal of the statement PW1/B dated 21.10.2000 of the complainant given to the police suggests that the complainant has deposed to the police that when the bus reached ISBT pul he collided with a person on which altercation took place and Dhiraj and Sonu intervened. There was one other person with the person who had collided with the complainant. He was attacked by some sharp edged weapon on his cheeks and Dhiraj was attacked on his left hand. The other person caused injuries on the right hand of Sonu. There has been improvements in the initial statement given to the police as compared with the deposition before the Court.
13. PW2 Dhiraj has deposed that when the bus reached ISBT bridge he and his friends were standing in front of each other and some altercation took place between PW1 and accused Hashim. He and Sonu intervened and accused Hashim took some sharp edged weapon and gave a blow on the face of Madan. He was also accompanied by another person and the accused caused injuries on his left hand and the hand of Sonu. In the statement under section 161 Cr. PC he has stated that one person collided with PW1 Dhiraj and he and Sonu intervened and the person colliding injured Madan on his left cheeks and his left hand. He also injured Sonu on his right hand. There are also improvements in the statements given to the police as compared with the State vs. Hashim & Anr. FIR No525/2000 PS Seelampur Page No. 9 / 13 deposition before the Court. Neither PW1 nor PW2 have mentioned correct date of incident or time. Perusal of the personal search memo of both the accused signed by PW1, PW2 and Sonu shows that nothing has been recovered from the possession of either of the accused persons. It is the case of the prosecution that both the accused persons were apprehended by the public persons and handed over to the police. The accused persons were through out present before the PW1 and PW2 right from the incident till their handing to the police officials. Therefore, the weapon on injury should have been recovered from them which is not the case. Moreover, the incident occurred in a moving bus and as per the prosecution the public persons gave beatings to the accused and apprehended them. None of the public persons have been made a witness to the investigation or their statements have been recorded. Prosecution has solely relied on the testimony of complainant and his friend.
14. In a criminal trial the burden of the prosecution is to prove the guilt of the accused beyond reasonable doubt. The prosecution has to proved from the facts / witnesses that it was only the accused who has caused the offence and no other possibility is possible. The testimony of PW1 complainant and his friend, though they are the injured victims have not been corroborated by any other witness. No weapon of offence has been recovered either of the accused persons. In the circumstances, it cannot be said that the prosecution has proved its case.
15. The rule that the prosecution must prove its case beyond State vs. Hashim & Anr. FIR No525/2000 PS Seelampur Page No. 10 / 13 reasonable doubt is a rule of caution laid down by the Courts of Law in respect of assessing the evidence in criminal cases. In Awadhi Yadav v. State of Bihar , (1971) 3 SCC 116 at page 117, Hon'ble Supreme Court has observed that:
"Before a person can be convicted on the strength of circumstantial evidence, the circumstances in question must be satisfactorily established and the proved circumstances must bring home the offence to the accused beyond reasonable doubt. If those circumstances or some of them can be explained by any other reasonable hypothesis then the accused must have the benefit of that hypothesis. But in assessing the evidence imaginary possibilities have no place. What is to be considered are ordinary human probabilities."
16. In State of Haryana v. Bhagirath, (1999) 5 SCC 96 :
1999 SCC (Cri) 658 : 1999 SCC OnLine SC 577 at page 99 Hon'ble Supreme Court has observed that:
"But the principle of benefit of doubt belongs exclusively to criminal jurisprudence. The pristine doctrine of benefit of doubt can be invoked when there is reasonable doubt regarding the guilt of the accused. It is the reasonable doubt which a conscientious judicial mind entertains on a conspectus of the entire evidence that the accused might not have committed the offence, which affords the benefit to the accused at the end of the criminal trial. Benefit of doubt is not a legal dosage to be administered at every segment of the evidence, but an advantage to be afforded to the accused at the final end after consideration of the entire evidence, if the Judge conscientiously and reasonably entertains doubt regarding the guilt of the accused. It is nearly impossible in any criminal trial to prove all the elements with a scientific State vs. Hashim & Anr. FIR No525/2000 PS Seelampur Page No. 11 / 13 precision. A criminal court could be convinced of the guilt only beyond the range of a reasonable doubt. Of course, the expression "reasonable doubt" is incapable of definition. Modern thinking is in favour of the view that proof beyond a reasonable doubt is the same as proof which affords moral certainty to the Judge."
17. Francis Wharton, a celebrated writer on criminal law in the United States has quoted from judicial pronouncements in his book Wharton's Criminal Evidence (at p. 31, Vol. 1 of the 12th Edn.) as follows:
"It is difficult to define the phrase 'reasonable doubt'. However, in all criminal cases a careful explanation of the term ought to be given. A definition often quoted or followed is that given by Chief Justice Shaw in the Webster case. He says: 'It is not mere possible doubt, because everything relating to human affairs and depending upon moral evidence is open to some possible or imaginary doubt. It is that state of the case which, after the entire comparison and consideration of all the evidence, leaves the minds of the jurors in that consideration that they cannot say they feel an abiding conviction to a moral certainty of the truth of the charge."
18. In the treatise The Law of Criminal Evidence authored by H.C. Underhill it is stated (at p. 34, Vol. 1 of the 5th Edn.) thus:
"The doubt to be reasonable must be such a one as an honest, sensible and fair-minded man might, with reason, entertain consistent with a conscientious desire to ascertain the truth. An honestly entertained doubt of guilt is a reasonable doubt. A vague conjecture or an inference of the possibility of the innocence of the accused is not a reasonable doubt. A reasonable doubt is State vs. Hashim & Anr. FIR No525/2000 PS Seelampur Page No. 12 / 13 one which arises from a consideration of all the evidence in a fair and reasonable way. There must be a candid consideration of all the evidence and if, after this candid consideration is had by the jurors, there remains in the minds a conviction of the guilt of the accused, then there is no room for a reasonable doubt."
19. Thus, in view of the above discussion, the Prosecution has not been able to establish beyond reasonable doubt the guilt of the accused therefore, accused Hashim is found not guilty in the present case and resultantly, they stands acquitted in the present case.
20. Accused is directed furnish bail bonds and surety bond in the sum of Rs.10,000/-, u/s 437A Cr.P.C and directed to be present before the Ld. Appellate Court as and when directed.
Digitally signed by VIPUL VIPUL SANDWAR
SANDWAR Date:
2023.07.18
16:12:57 +0530
Announced in the open (VIPUL SANDWAR)
Court on 18 th July, 2023 MM-02/NE/KKD COURTS
State vs. Hashim & Anr. FIR No525/2000 PS Seelampur Page No. 13 / 13