Delhi District Court
State vs . Alimuddin @ Alli & Ors. on 25 July, 2023
IN THE COURT OF METROPOLITAN MAGISTRATE-02,
NORTH EAST DISTRICT, KARKARDOOMA COURTS,
DELHI
PRESIDED BY: SH. VIPUL SANDWAR
JUDGMENT
State Vs. Alimuddin @ Alli & Ors.
FIR NO. : 84/2015, U/s 323/324/34 IPC
PS : SEELAMPUR
A. CIS No. of the Case : 1472/2017
B. FIR No. : 84/2015
C. Date of Institution : 03.08.2016
D. Date of Commission of Offence : 04.02.2015 E. Name of the complainant : Nafish @ Raja S/o Mohd.
Irshad, R/o E-11/150, Shastri Park, Delhi F. Name of the Accused, his : (1) Alimuddin S/o Jamiluddin, Parentage & Addresses (2) Mustkeem @ Kammo S/o Alimuddin, (3) Nadeem S/o Alimuddin, (4) Waseem @ Nadeem S/o Alimuddin @ Alli, all R/o of A-124B, Buland Masjid, Shastri Park, Delhi G. Representation on behalf of : Ms. Shivani Joshi, Ld. APP. State H. Offence complained of : U/s 323/324/34 IPC I. Plea of the Accused : Pleaded not guilty and claimed trial.
J. Order reserved on : 03.06.2023 K. Date of Order : 25.07.2023 L. Final Order : Acquitted
FIR No.84/15 State vs. Alimuddin @ Alli & Ors. PS Seelampur Page No.1 of 8 Brief Statement of Reasons for Decision of the Case
1. On the basis of the complaint of the complainant the present FIR was registered wherein he has stated that on 04.02.2015 at around 06:30 pm near house of his brother Naushad his neighbour Nadeem was coming and asked mobile from his brother. His brother refused on which he was slapped by the accused who went to his house. Later he alongwith his brother Kammo, Waseem and father Alli came and started beating his brother Naushad. Brother of complainant, Dilshad also came to the spot, accused Naushad punched him. Accused Kammo attacked on the stomach and head of the complainant with some sharp edged object. Accused Waseem attacked Dilshad with a kirpaan. Accused Alli slapped the complainant.
2. FIR was registered and has been investigated by the officials of Police Station Seelampur and IO/HC Amar Pal the charge sheet against the accused persons upon which cognizance was taken by the Court on 03.08.2016.
3. Accused appeared before the Court and copy of chargesheet along with other documents under Section 207 Cr.P.C. was supplied to him.
4. Charge was framed vide order dated 27.10.2021 for the offence punishable Under Section 323/324/34 IPC against accused by Ld. Predecessor of this Court to which accused pleaded not guilty and claimed trial.
FIR No.84/15 State vs. Alimuddin @ Alli & Ors. PS Seelampur Page No.2 of 8
5. Thereafter, matter was listed for Prosecution Evidence. Complainant Nafish @ Raja and his brothers Dilshad and Naushad were called for examination as PWs. PW Naushad came to this Court on issuance of summons and deposed as PW1 on 03.06.2023. He stated that his brothers PW Nafish Raja and PW Dilshad have expired. Accordingly, they were dropped from the list of witnesses. In nutshell, the testimony of the only prosecution witness is as follows :-
(i) PW1 Naushad turned completely hostile and did not support the case of the prosecution at all. He deposed that owing to lapse of time he does not recall the exact month of the incident and stated the day of incident to be 04.06.2015. He further deposed that on that day he was standing on a slippery surface and had fallen due to which he sustained injuries on his nose. Questions in the nature of cross-examination were put to him by Ld. APP for State after seeking permission of this Court. Despite that he could not recall the date of incident. He refused to identify the accused present in Court despite being pin pointed towards them.
He denied giving any complaint against the accused persons. He even denied his MLC bearing no.A-3525 stating that he was illiterate. The witness was not cross examined by Ld. counsel for accused despite being given an opportunity.
6. The accused persons jointly admitted the genuineness of FIR and DD No.31A dated 04.02.2015 prepared by PW ASI Zile Singh, MLC No.3525, 3526, 3527/15 prepared by Dr. Niyaz Ahmed and accordingly, the said witnesses were dropped. Also, as PW1 had turned hostile and the other public witnesses i.e. brothers of PW1 had expired, the remaining witnesses being FIR No.84/15 State vs. Alimuddin @ Alli & Ors. PS Seelampur Page No.3 of 8 formal in nature were dropped.
7. As nothing incriminating had come in the evidence against the accused persons, their formal examination under section 313 Cr. PC read with section 281 Cr. PC was dispensed with. Moreover, as per section 102 of Indian Evidence Act the prosecution had not brought any evidence against the accused persons therefore, the burden did not shift on the accused persons to lead evidence. Final arguments were heard. Case record perused meticulously.
8. This Court has thoughtfully considered the material on record and arguments advanced with due circumspection.
9. In the present case the prosecution has charged the accused persons for offence punishable under section 324 IPC. 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) hurt caused should not be as per section 334 IPC, (3) the grievous hurt must have been caused by dangerous weapons or means.
10. "Grievous hurt" has been defined in Section 320 IPC, which reads as follows:
"320. Grievous hurt.--The following kinds of hurt only are designated as 'grievous':
First.--Emasculation.
FIR No.84/15 State vs. Alimuddin @ Alli & Ors. PS Seelampur Page No.4 of 8 Secondly.--Permanent privation of the sight of either eye.
Thirdly.--Permanent privation of the hearing of either ear.
Fourthly.--Privation of any member or joint. Fifthly.--Destruction or permanent impairing of the powers of any member or joint.
Sixthly.--Permanent disfiguration of the head or face.
Seventhly.--Fracture or dislocation of a bone or tooth.
Eighthly.--Any hurt which endangers life or which causes the sufferer to be during the space of twenty days in severe bodily pain, or unable to follow his ordinary pursuits."
11. 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."
"The expression "any instrument which, used as a weapon of offence, is likely to cause death" in S. 326 IPC has to be gauged taking note of the heading of the section. What would constitute a "dangerous weapon"
would depend upon the facts of each case and no generalisation can be made."
12. It is the case of the prosecution that the accused persons herein have voluntarily caused hurt to the complainant/his brothers by use of dangerous weapons or means. None of the FIR No.84/15 State vs. Alimuddin @ Alli & Ors. PS Seelampur Page No.5 of 8 prosecution witnesses have deposed anything to this effect. There only prosecution witness PW1 Naushad did not support the case of the prosecution at all. He denied identifying the accused or that any incident as alleged by the prosecution had ever taken place. Despite being put to the test of cross-examination after seeking permission of this Court nothing material could be brought out from the witness. Accordingly, prosecution has failed to prove that accused persons have committed any offence punishable under section 324 IPC.
13. In a criminal trial, the burden on the prosecution is beyond reasonable doubt. The 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 hy- pothesis. But in assessing the evidence imaginary possibilities have no place. What is to be consid- ered are ordinary human probabilities."
14. In Bhagirath (supra) at page 99 Hon'ble Supreme Court has observed that:
"But the principle of benefit of doubt belongs ex- clusively to criminal jurisprudence. The pristine doctrine of benefit of doubt can be invoked when FIR No.84/15 State vs. Alimuddin @ Alli & Ors. PS Seelampur Page No.6 of 8 there is reasonable doubt regarding the guilt of the accused. It is the reasonable doubt which a consci- entious 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. Ben- efit of doubt is not a legal dosage to be adminis- tered at every segment of the evidence, but an ad- vantage to be afforded to the accused at the final end after consideration of the entire evidence, if the Judge conscientiously and reasonably enter- tains doubt regarding the guilt of the accused. It is nearly impossible in any criminal trial to prove all the elements with a scientific precision. A criminal court could be convinced of the guilt only beyond the range of a reasonable doubt. Of course, the ex- pression "reasonable doubt" is incapable of defini- tion. 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."
15. 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."
16. 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:
FIR No.84/15 State vs. Alimuddin @ Alli & Ors. PS Seelampur Page No.7 of 8 "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 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."
17. The evidence brought on record by the prosecution, is not sufficient to link the accused to the commission of the crime. As discussed above, the prosecution has failed to prove its case. The only prosecution witness has turned hostile and did not support the case of the prosecution.
18. Thus, in view of the above discussion, the Prosecution has not been able to discharge its burden beyond reasonable doubt. Accordingly, accused Alimuddin, Mustkeem, Nadeem and Waseem are found not guilty in the present case and resultantly, stands acquitted in the present case.
19. Accused persons are directed to furnish bonds in the sum of Rs.10,000/- each with a surety of like amount u/s 437A Cr.P.C and is directed to be present before the Ld. Appellate Court as and when directed. Digitally signed by VIPUL SANDWAR VIPUL Date:
SANDWAR 2023.07.25
15:50:20
+0530
Announced in the open (VIPUL SANDWAR)
Court on 25 th July, 2023 MM-02/NE/KKD COURTS
FIR No.84/15 State vs. Alimuddin @ Alli & Ors. PS Seelampur Page No.8 of 8