Delhi District Court
State vs . Zahid & Ors on 23 October, 2018
IN THE COURT OF SH. JITENDRA SINGH
ADDL. CHIEF METROPOLITAN MAGISTRATE : WEST
TIS HAZARI COURTS : DELHI
FIR No. 400/2002
ID 66249/2016
U/S. 323/506/34 IPC
PS Patel Nagar
State Vs. Zahid & Ors
JUDGMENT
1. Sr. No of case 66249/2016
2. Date of commission of offence 29.7.2002
3. Name of complainant Sh. Sanjay
4. Name of accused 1) Zahid@ Rehan Ali
s/o. Sh. Asgar Ali
r/o. H NO. L233 Gali NO 2
Sunder Nagar PS Nand Nagri
Delhi
2) JaiMohan
s/o. Sh. Shamsher Singh
(proceedings abated vide order
dated 28.4.2011)
3) Pappu Kumar
s/o. Sh Ayodhya Prasad
(declared PO vide order dated
10.6.2011)
5. Offence complained of U/s. 323/506/34 IPC
6. Plea of accused Pleaded not guilty
7. Final order 23.10.2018
8. Date of such order Convicted
State Vs. Zahid & Ors; FIR No. 400/02 PN 1/10
1. FACTS IN BRIEF/ CASE SET UP BY PROSECUTION: Accused persons were sent to face trial on the allegations that on 29.7.2002 at about 7.30 AM at the bus stand Loha Mandi all of them in furtherance of their common intention had threatened one person namely Sh Sanjay and also gave kick and fist blows to him.
2. MISCELLANEOUS PROCEEDINGS: After completion of the investigation, chargesheet was filed by the police against accused persons. Cognizance of the offence was taken and the accused persons were summoned. Copy of the chargesheet was supplied to the accused persons and the matter was adjourned for arguments on charge. During the course of trial accused JaiMohan had expired and proceedings qua him was abated vide order dated 28.4.2011 and accused Pappu Kumar was declared PO vide order dated 10.6.2011.
3. CHARGE FRAMED AGAINST THE ACCUSED: Charge for offences punishable u/s. 323/506/34 IPC was framed against accused Zahid, to which he pleaded not guilty and claimed trial.
4. EVIDENCE LED BY THE PROSECUTION : In order to prove its case, prosecution has examined following seven witnesses as under :
(a)PW1 is Sh. Sanjay i.e. the victim/ injured. PW1 deposed that about State Vs. Zahid & Ors; FIR No. 400/02 PN 2/10 13 years ago he used to ply school van and use to take the children from their house and drop them in their respective schools in his Maruti Van bearing NO. 0917. PW1 further stated that on the date of incident at about 7.30 AM when he was going to Inderpuri to pick the children and was waiting at the red light of Loha Mandi, Naraina, he noticed 3 persons running an one of them opened the front door of his van and sat beside him and one other person opened the door from his(driver's) side and caused injuries to him. PW1 further stated that the person who sat beside him caught hold of the child who was already in the van by her hair. PW1 further stated that in the meanwhile one police van who was chasing struck his Maruti from behind and the boy who was sitting next to him alighted from the Van and all of the three boys started running. PW1 identified the accused Zahid present in the court. PW1 was cross examined by Ld defence counsel at length.
(b)PW2 is Retd ASI Sodan Singh. PW2 deposed that he was Incharge of PR van zebra 63 alongwith ASI Sawai Lal. PW2 further stated that on 29.7.2002 at about 7.10 AM when they were present near Payal Cinema, a public person informed them that some rogues having arms were in bus of route NO 73 from Naraina to Patel Nager and they followed the said bus and made the bus to stop. PW2 further stated that as soon as the bus stopped three person State Vs. Zahid & Ors; FIR No. 400/02 PN 3/10 alighted from the bus and they boarded Maruti van NO. 0917 forcibly. PW2 further stated that in the meanwhile message was flashed to zebra 67 and the said PCR van also reached the spot and the said 3 boys were apprehended whose name was revealed as Pappu, Jai Mohan and Zahid. PW1 further stated that he flashed the message to the PCR control room and IO from the PS reached the spot and the accused persons were handed over to the IO ASI Sombir Singh and his statement was recorded. PW2 was also cross examined by Ld LAC at length.
(c)PW3 is W/SI Pushpa i.e. the duty officer. PW3 deposed regarding registration of the FIR Ex. PW3/A.
(d)PW4 is Sh Sunil Kumar from the O/o. Home General Department and proved the notification Ex. PW4/A.
(e)PW5 is Retd SI Ram Chander i.e. Incharge of zebra 67 and deposed that on receipt of information/ message from zebra 63, they stopped vehicle bearing NO DL 6CH 0917 and they put barricade on the road and stopped it and in the meanwhile zebra 63 also reached and the staff of both the PCR managed to apprehend all the 3 accused persons. PW5 further stated that after sometime IO from the local police reached the spot and they handed over the custody of accused person to the IO.
State Vs. Zahid & Ors; FIR No. 400/02 PN 4/10
(f) PW6 is Retd SI Sawai Lal i.e. the driver of zebra 63. Testimony of PW6 is similar to that of PW2 as both of them were in same PCR van.
(g)PW7 is HC Balwan Singh. PW7 deposed that on 29.7.2002 he had accompanied the IO ASI Sombir Singh to the spot i.e. Loha Mandi Naraina where PCR van Zebra 63 and 67 and its staff were present and HC Sodan Singh I/C of zebra 63 handed over 3 accused persons and thereafter IO prepared rukka and got the FIR registered through him.
5. STATEMENT OF ACCUSED: Statement of accused was recorded u/s. 313 Cr.P.C. wherein the incriminating evidence was put to the accused. In the said statement u/s. 313 Cr.P.C, accused has stated that he was falsely implicated in this case. Accused had not led any evidence in his defence.
6. ARGUMENTS OF LD. APP FOR STATE AND DEFENCE Ld APP for the State had argued that the prosecution has successfully proved its case against the accused beyond reasonable doubt. Ld APP for the State had also argued that the factum of causing injury by accused to the injured has been proved beyond reasonable doubt and therefore, accused is liable to be convicted in this case.
On the other hand, accused has submitted that there are State Vs. Zahid & Ors; FIR No. 400/02 PN 5/10 contradictions in the testimony of witnesses. It is further submitted that no independent witness except the injured was joined by the IO. It is further submitted that the prosecution has miserably failed to prove its case against the accused and therefore, the accused is entitled of being acquitted in this case.
7. REASONS FOR THE DECISION:
(i) In the present case, charge for offences punishable u/s.
323/506/34 IPC was framed against accused.
(ii) Section 321 IPC defines voluntarily causing hurt and section 323 provides punishment for said offence. Section 506 IPC provides that whoever commits the offence of criminal intimidation shall be punished.
(iii) Before proceeding further, I need to discuss the relevant legal propositions applicable on to the facts of the case. It is a settled proposition of criminal law that the prosecution is supposed to prove its case on judicial file beyond reasonable doubt by leading reliable, cogent and convincing evidence & that in order to prove its case on judicial file, the prosecution is supposed to stand on its own legs whereby it cannot derive any benefit whatsoever from the weaknesses, if any, in the defence of the accused. Further settled it is, that the primary burden of proof for proving the offences in a criminal trial rests on the shoulders of the State Vs. Zahid & Ors; FIR No. 400/02 PN 6/10 prosecution, which burden never shifts on to the accused.
(iv) It is no longer Res Integra that accused is entitled to benefit of every reasonable doubt(s) appearing qua the material facts of the prosecution's story whereby such reasonable doubt(s) entitles the accused to acquittal.
(v) In the light of the above discussed legal position, I shall now step forward to divulge my opinion on the respective fate of the accused.
(vi) In order to prove its case, prosecution has cited as many as eleven witnesses out of which seven have been examined. The most important witness as per the prosecution version was the injured i.e. Sh Sanjay.
(vii) The star witness i.e. PW1 has supported the prosecution version. He had narrated the manner in which the accused persons had boarded his van and caused injuries to him. The relevant extract of the testimony is as under: "PW1: Today I do not remember the date, month and year of incident but the incident occurred about 13 years back. At the time of incident Ii used to driver school van and my work was to life the children from their house and alighting them in the respective schools............ at about 7.30 AM I was going to Inderpuri to pick the children and ........when I was State Vs. Zahid & Ors; FIR No. 400/02 PN 7/10 standing at the red light, I saw three persons were running. One of them opened the front door of the said van which was near the driver seat.......other one of them tried to open the door from driver's side and he succeeded.........one police van was chasing them and the said police van struck my maruti van from behind and on which the boy who was sitting near my seat alighted and the boy who tried to open the door and the third boy who was already running ...............entered in Krishikunj Colony and all of them were apprehended by police officials........."
(viii) From the testimony of PW1, it is clear that the accused alongwith his associates had caused injuries to PW1 while they were being chased by the police. Accused has also been correctly identified by PW1. There is no reason to disbelieve the same. Despite being cross examined, nothing beneficial for the accused could be brought from the mouth of PW1.
(ix) Now coming to the testimony of other witnesses i.e PW2, PW5 and PW6. They were the staff members of the PCR van who were chasing the accused persons and had apprehended the accused persons. The relevant extract of the testimony of said PWs is as under: "PW2: On 29.7.2002 I was posted State Vs. Zahid & Ors; FIR No. 400/02 PN 8/10 in PCR .........zebra 63......at about 7.10 AM when we were present near Payal Cinema..........public person met us and informed us that some rogues are on board..............in bus NO.
73.........................we followed the said bus and made it stop near Naraina bus stop....................In the meanwhile ASI Sawaii Lal flashed message to zebra 67 which also happened to come at spot............. all the three boys were apprehended.................."
PW5: On 29.7.02 I was posted in PCR.......On that day I was Incharge in PCR van zebra 67.........at about 7.40 AM we received message from Incharge zebra 63.....................on this information we put barricade on the road and stopped the vehicle..........In the meantime staff of zebra 63 also reached there and staff managed to apprehend all the said three persons............."
(x) From the testimony of aforesaid PWs it is clear that the accused was apprehended at the spot while he was trying to flee. In their cross examination, PWs denied the suggestions put to them. During their cross examination, nothing could be elicited from the mouth of PWs which renders their testimony unreliable.
State Vs. Zahid & Ors; FIR No. 400/02 PN 9/10
(xi) Thus the prosecution has successfully brought on record that accused had voluntarily caused injuries to the injured. The cumulative and corroborating testimonies of PWs clearly proves the offence. As far as offence punishable u/s. 506 IPC is concerned, the injured has not uttered anything about the threats extended to him by the accused person. In the absence of any evidence in this regard, prosecution has miserably failed to prove said offence.
8. CONCLUSION: In nutshell, I am of the considered opinion that the prosecution had succeeded in proving the essential ingredients of offence punishable u/s. 323 IPC. Accordingly accused is convicted for offence punishable u/s. 323 IPC.
Judgment dictated and JITENDRA SINGH pronounced in the open Court ACMM:WEST DISTT:DELHI i.e. the 23rd of October, 2018 (This judgment consists of 10 pages) State Vs. Zahid & Ors; FIR No. 400/02 PN 10/10 IN THE COURT OF SH. JITENDRA SINGH ADDL. CHIEF METROPOLITAN MAGISTRATE : WEST TIS HAZARI COURTS : DELHI FIR No. 400/2002 ID 66249/2016 U/S. 323/506/34 IPC PS Patel Nagar State Vs. Zahid & Ors ORDER ON SENTENCE:
Present: Ld APP for State.
Convict in person.
I have heard Ld APP for State as well as convict on the point of sentence and have perused the record.
It is submitted by convict that he belongs to poor strata of the society. It is further submitted that he is the sole bread earner for his family. It is further submitted that convict is not a previous convict. It is further submitted by convict is aged about 38 years. It is further submitted that convict had already remained in judicial custody for a period of more than one week. Convict has prayed for a lenient view.
Per contra, Ld APP for State has prayed for maximum punishment to the convict as prescribed for the offence in question.
In the present case convict has been convicted for offence State Vs. Zahid & Ors; FIR No. 400/02 PN 2/2 punishable u/s. 323 IPC. No previous conviction has been alleged or proved against convict. The convict is not involved in any such case, as stated by him. Convict is having a family to support. Keeping in view the facts and circumstances and more particularly the socio economic status of the convict and the fact that convict had already spent a period of about 11 days during the trial of present case, I am of considered view that ends of justice would be met if the convict is sentenced to SI for the period already undergone by him during the trial of present case.
Sentenced accordingly,
Digitally signed
by JITENDRA
JITENDRA SINGH
SINGH Date:
2018.10.30
ANNOUNCED IN OPEN COURT 15:21:05 +0530
today i.e. 23rd October, 2018 JITENDRA SINGH
ACMM:WEST DISTT:DELHI
State Vs. Zahid & Ors; FIR No. 400/02 PN 2/2