Delhi District Court
State vs . Mohd. Zulfikar & Ors. on 16 May, 2011
IN THE COURT OF SH. HEM RAJ, METROPOLITAN MAGISTRATE,
WEST - 09, TIS HAZARI COURTS, DELHI
State Vs. Mohd. Zulfikar & Ors.
FIR No : 570/96
U/S : 451/323/34 IPC
P.S : Vikas Puri
1. Serial No. of the case : 309/02
2. Unique ID of the Case : 02401R0069681997
3. Date of Commission of Offence : 06.10.1996
4. Date of institution of the case : 19.12.1997
5. Name of the complainant : Ansar Hussain
6. Name of accused, parentage & : (1) Mohd. Zulfikar
Address S/o Jarif Ahmad
(2) Mohd. Salim
S/o Jarif Ahmad
(3) Mohd. Abid
S/o Jarif Ahmad
All R/o 43, LExtension,
Mohan Garden,Uttam
Nagar, Delhi.
7. Offence complained : U/S 451/323/34 IPC
8. Plea of Accused : Pleaded Not Guilty.
9. Final Order : Convicted U/S 323/34 IPC
& Acquitted U/S 451 IPC
10.Date of Final Order : 16.05.2011
FIR No. 570/96 STATE V/s ZULFIKAR & ORS. PAGE No.1/12
J U D G M E N T
1 The prosecution has filed a charge sheet against the accused persons on the allegations that on 06.10.96 at about 7 pm at one vacant plot in L Extension, Mohan Garden within the jurisdiction of PS Vikas Puri all the accused persons in furtherance of their common intention committed house trespass in order to cause hurt to complainant Ansar Hussain and eventually caused hurt to him. Therefore the commission of offences U/s 451/323 read with Section 34 IPC was alleged against the accused persons. 2 After the completion of the investigation, the charge sheet against the accused persons was filed and in compliance of the provisions of section 207 Cr.PC the copies of the charge sheet and the documents were supplied to the accused persons.
3 Vide order dated 04.02.1998 my Ld. predecessor Sh. A.S. Dateer, the then Ld. MM was pleased to frame the notice for offences U/s 451/323 read with Section 34 IPC to which accused persons pleaded not guilty and claimed trial.
FIR No. 570/96 STATE V/s ZULFIKAR & ORS. PAGE No.2/12 4 In order to substantiate the allegations against the accused persons the prosecution examination the following four witnesses. 5 PW1 J.C. Vashisht was the record clerk from DDU Hospital who proved the MLC of injured Ansar Hussain prepared by Dr. Archna Mishra. He deposed that he has seen the concerned doctor signing and writing during the course of his duties. He was not cross examined by the accused. 6 PW2 ASI Satyawati was the DO in this case and proved the FIR as Ex.PW2/A. The witness was not cross examined by the accused. 7 PW3 Ansar Hussain was the complainant in this case. He deposed that on 06.10.96 at about 7 pm when he was present in his house, accused Zulfikar called him outside. He alongwith Zulfikar came in a vacant plot situated at the backside of his house where accused Salim and Abid who were brothers, shouted "Pakro Saale ko, Aaj Mazaa Chakha Dengey". He further deposed that Salim gave a dunda blow on his leg and Zulfikar caught him from backside and Abid Hussain was having an iron instrument like rod and had given its blow on his right cheek. Zulfikar caught hold of his neck. FIR No. 570/96 STATE V/s ZULFIKAR & ORS. PAGE No.3/12 His right jaw (Jabda) was fractured and he became unconscious and admitted at Sufderjung hospital where his statement Ex.PW3/A was recorded. He further deposed that he got treatment in Sufderjung hospital and produced photocopy of MLC and proved the same as Ex.PW3/B. He correctly identified the accused persons in the court. He was not cross examined by the accused persons.
8 PW 4 Smt. Haseena Begum was the wife of the complainant who deposed that on 16.10.1996 at about 7 pm Zulfikar came to his house and call his husband outside. After sometime she went out and saw that accused Zulfikar, Salim and Abid were beating his husband. Her husband became unconscious. Police was called who took him to DDU hospital. She was also not crossexamined by the accused persons.
9 It is pertinent to mention here that no crossexamination of PW3 and PW4 was conducted by the accused persons and on 24.12.2010 Ld. counsel for the accused persons moved an application U/s 311 Cr.PC for recalling of the aforesaid witnesses which was allowed subject to the availability of the witnesses. Despite the efforts undertaken by DCP(West) these two witnesses could not be served as they were not traceable, hence, FIR No. 570/96 STATE V/s ZULFIKAR & ORS. PAGE No.4/12 their crossexamination could not be conducted. The testimonies of these two witnesses remained unrebutted.
10 In their statements U/s 313 Cr.PC all the accused persons denied that they caused an injury to the complainant Ansar Hussain. The submitted that they have been falsely implicated by the police and claimed to be innocent.
11 It has been submitted by the Ld. APP for the State that the prosecution has been able to prove the case against the accused persons beyond reasonable doubt. He has further submitted that the testimonies of the PW 3 Ansar Hussan and PW4 Haseena Begum went unrebutted as there was no crossexamination from the same witnesses. 12 On the other hand, Ld . counsel for the accused persons submitted that prosecution has miserably failed to prove the case beyond reasonable doubt. He further submits that in this case IO / ASI Dal Chand has not been examined which has affected the veracity of the case of the prosecution.
FIR No. 570/96 STATE V/s ZULFIKAR & ORS. PAGE No.5/12 13 I have heard the arguments as advanced by the Ld. APP for the State and the Ld Counsel for the accused persons.
14 In this case, the accused persons have been charged with offences U/s 451/323 IPC R/w Section 34 IPC.
15 The essential ingredients of the offence U/s 323 IPC are as follows:
(1) Accused voluntarily caused bodily pain, disease or infirmity to the victim;
(2) The accused did so with intention of causing hurt or with the knowledge that he would thereby cause hurt to the victim.
16 Section 451 IPC reads as under:
Whoever commits housetrespass in order to the committing of any offence punishable with imprisonment, shall be punished with imprisonment of either description for a term which may extend to two years, and shall also be liable to fine; and if the offence intended to be committed is theft, the term of the imprisonment may be extended to seven years.
FIR No. 570/96 STATE V/s ZULFIKAR & ORS. PAGE No.6/12
17 House trespass has been defined in Section 442 IPC which reads as under:
Whoever commits criminal trespass by entering into or remaining in any building, tent or vessel used as a human dwelling or any building, used as a place for worship, or as a place for the custody of property, is said to commit "housetrespass".
18 To prove House trespass the prosecution is required to prove the Criminal Trespass. The Criminal trespass is defined in Section 447 IPC and the essential ingredients of the said sections are as follows:
(1) The complainant was in possession of property. (2) The accused entered into or upon the property unlawfully or having entered into or upon such property lawfully remains there with an intention to;
(a) commit an offence;
(b) intimidate;
(c) insult;
(d) annoy any person in possession of property.
FIR No. 570/96 STATE V/s ZULFIKAR & ORS. PAGE No.7/12 19 Let me discuss the evidence on the record to ascertain whether the prosecution has been able to prove the offence under Section 451 IPC. As clear from Section 441 IPC that the criminal trespass must be into or upon the property of the possession of another within intent to commit an offence or to intimidate, insult or annoy any person in possession of such property. As per the evidence on the record, all the accused persons had beaten up PW3 Ansar Hussain in a vacant plot situated at the back of his house but there is nothing on the record to suggest that the said plot was in the possession of PW3 Ansar Hussain. Not an iota of evidence has come on the record to prove the same. PW3 Ansar Hussain also said nothing about the same. There is no documentary evidence either on the record to suggest that the PW3 Ansar Hussain was in the possession of the said plot. Since one of the essential ingredients of criminal trespass which is the basis of house trespass has not been proved on the record, therefore, the prosecution has failed to prove offence under Section 451 IPC against the accused persons beyond reasonable doubt.
20 Now I come to Section 323 IPC. To prove the commission of offence under Section 323 IPC, the prosecution was required to prove that the accused voluntarily caused bodily pain, disease or infirmity and that the FIR No. 570/96 STATE V/s ZULFIKAR & ORS. PAGE No.8/12 accused did so with intention of causing hurt or with the knowledge that hurt would be caused. The hurt contemplates the causing of pain by a person to another and the pain is sufficient to constitute hurt. The term 'disease' or 'infirmity' has been interpreted to mean inability of an organ to perform normal functions which may be either temporarily or permanent. 21 PW3 Ansar Hussain in his deposition has categorically deposed that the accused Saleem gave one Danda below on his leg and Zulfikar caught hold him from back side and Abid Hussain was holding a iron rod like weapon and hit him on his right cheek. This witness has not been crossexamine at all by the accused persons meaning thereby that the accused persons have admitted the testimony of PW3 Ansar Hussain. No crossexamination of this witness was conducted on behalf of the accused persons. There is nothing on the record to disbelieve the testimony of PW3 Ansar Hussain. The injuries has been proved also by PW1, J.C. Vashisth, Record Clerk who proved the MLC of Ansar Hussain as Ex. PW1/A. Therefore, the prosecution has proved on record beyond reasonable doubt that all the accused persons in furtherance of their common intention caused the injuries on the person of Ansar Hussain and thus the offence under Section 323/34 IPC has been proved against the accused persons beyond FIR No. 570/96 STATE V/s ZULFIKAR & ORS. PAGE No.9/12 reasonable doubt.
22 Ld. Counsel for the accused persons has submitted that the prosecution has not examined the investigating officer in this case, therefore, in the absence of his testimony, the site plan has also not been proved on the record which has seriously prejudiced the case of the prosecution and therefore, the accused persons are entitled for reasonable doubt. The contention is without any merits and in my opinion, is liable to be rejected which is accordingly rejected. It is well settled principal of law and there are catena of judgments to this effect. In Ambika Prasad and Anr. etc V/s State (Delhi Administration, Delhi) 83 (2000) DLT 476 (SC) the Hon'ble Supreme Court held as "......Equally, it is unfortunate that investigating officer has not stepped into the witness box without any justifiable ground. But this conduct of the investigating officer or other hostile witnesses cannot be a ground for discarding the evidence of PW5 and PW7 whose presence on the spot is established beyond reasonable doubt. They have suffered injuries and their evidence is corroborated by medical evidence. It is also in conformity with what has been stated in the FIR. In any case, investigating officer is not at all material witness for the purpose of establishing whether accused or the FIR No. 570/96 STATE V/s ZULFIKAR & ORS. PAGE No.10/12 complainant party was the aggressor. Not only that, accused have examined the defence witnesses for establishing their say. Hence, non examination of the investigating officer cannot be a ground for holding that injured witnesses should not be believed". Therefore, it is very much clear that merely the investigating officer has not been examined by the prosecution, the case of the prosecution proved otherwise from the testimony of the eyewitnesses cannot be rejected. To hold that the prosecution case cannot be proved in the absence of the examination of the investigating officer, in my opinion would be committing injustice to the testimonies of eye witnesses who have proved the case of the prosecution beyond reasonable doubt. As settled by a plethora of judgments, the Court should not play in the hands of a shrewd investigating officer as he may not come in the witness box for some obvious reasons. Hence, the nonexamination of the investigating officer in this case has not affected the case of the prosecution so as to reject the testimony of PW3 Ansar Hussain.
23 Now I would deal with the next contention of Ld. Counsel that since in this case, the site plan has not been proved, therefore, the prosecution case has fallen short of being proved beyond reasonable doubt. The said contention is also devoid of any merits and is liable to be rejected FIR No. 570/96 STATE V/s ZULFIKAR & ORS. PAGE No.11/12 which is accordingly rejected. In my opinion, if the place of place has been proved by the testimonies of the witnesses then merely the site plan has not been proved, does not affect the case of the prosecution. PW3 Ansar Hussain has categorically deposed that the incident took place at a vacant plot situated at the back side of his house. There is no crossexamination at all from this witness. Therefore, the prosecution has sufficiently proved the place of the accident on the record.
24 Hence, in view of the above said discussions and the evidence as well as the material available on the record I am of the considered opinion that the prosecution has failed to prove the offence under Section 451 IPC against the accused persons, however, the prosecution has successfully proved the case against the accused persons U/S 323/34 IPC beyond reasonable doubt. Thus, the accused Mohd. Zulfikar, Saleem and Abid are hereby acquitted for the offence U/S 451 IPC but they are convicted of offences U/S 323/34 IPC. Let the parties be heard on the point of sentence.
ANNOUNCED IN THE OPEN COURT (HEM RAJ)
TODAY i.e. ON 16 MAY 2011 TH
MM09:WEST:THC
16.05.2011
FIR No. 570/96 STATE V/s ZULFIKAR & ORS. PAGE No.12/12