Delhi District Court
State vs . Abid Hussain & Ors. on 12 January, 2015
IN THE COURT OF Ms. SHEETAL CHAUDHARY PRADHAN:
METROPOLITAN MAGISTRATE10 (SOUTHEAST): SAKET
COURTS:NEW DELHI
State Vs. Abid Hussain & Ors.
FIR No. 65/1998
U/s 323/342/365/34 IPC
P.S. Sriniwaspuri
J U D G M E N T
Serial No. of the Case : 122/2/12
Unique Identification No. : 02403R0029292001
Date of Institution : 03.02.2001
Date on which case reserved for
judgment : 16.12.2014
Date of judgment : 12.01.2015
Name of the complainant : Shri Aftab
s/o Shri Dulare Shah
r/o H. No.133, CBlock, Mayur
Vihar, PhaseIII, New Delhi
FIR No. 65/1998
P.S. Sriniwaspuri Page No.1 of 21
Also at H. No.C113, Okhla Vihar,
New Delhi
Date of the commission of offence : 22.01.1998
Name of accused : (i) Abid Hussain
s/o Shri Taufiq Hussain
r/o M50, Gaffar Manzil, Okhla.
(ii) Basanta Singh
s/o Late Shri Prempal Singh
r/o 29M, G.K.1, Private Colony,
New Delhi
(iii) Vicky Chaudhary
s/o Shri Raghuraj Singh
r/o 56A, PocketA, Sukhdev Vihar,
New Delhi
(iv) Pawan Kumar
s/o Shri Jai Bhagwan
r/o 54, Sarai Julaina Gaon,
New Delhi
(Proclaimed offender)
Offence complained of : U/s 323/342/365/34 IPC
Offence charged of : U/s 323/342/365/34 IPC
FIR No. 65/1998
P.S. Sriniwaspuri Page No.2 of 21
Plea of the accused : Pleaded not guilty.
Final order : Accused persons, namely,
Abid Hussain, Basanta
Singh, Vicky Chaudhary
acquitted
Date of Institution : 03.02.2001
Date on which case reserved
for judgment : 16.12.2014
Date of judgment : 12.01.2015
BRIEF STATEMENT OF REASONS FOR
THE DECISION OF THE CASE
BRIEF FACTS:
Briefly the case of the prosecution is that the present FIR was registered on a complaint of complainant namely Aftab who had stated that at the time of incident he was working as Cable Operator and before the present incident he was working with Abid & Rashid for signal repair at cable line and had left their job and even prior to the same he was working with Vicky Chaudhary for cable operations. As he was paid less, he had left the job of Vicky Chaudhary, thereafter he started working with other cable operator namely Hinduja at Okhla Vihar. Due to the same, Vicky Chaudhary was FIR No. 65/1998 P.S. Sriniwaspuri Page No.3 of 21 annoyed and therefore on 21.01.1998 at about 11:00PM when complainant was having his dinner accused Vicky Chaudhary had sent one person, namely, Pawan and asked the complainant to come out and when the complainant stepped out his out, he found that accused Vicky Chaudhary along with Basanta and Shanu who was known to the complainant prior to the incident started asking him about his well being and thereafter put him in one white colour Gypsy and accused Vicky Chaudhary took him to the control room DDA Flats Sukhdev Vihar PocketA Market. Upon reaching there Abid was also present and thereafter at the instance of accused Vicky Chaudhary started beating the complainant, with the help of accomplices of Vicky Chaudhary. Firstly accused Vicky Chaudhary gave beatings to the complainant and thereafter his accomplices, namely, accused Basanta, Pawan, Shanu and Abid started giving him beatings, who also intimidated the complainant as he was working for Hinduja Cable and told him that he shall be falsely implicated in another matter. Thereafter, accused Vicky Chaudhary placed a key and one screw driver in the pocket of the complainant with intention to falsely implicate in a theft case. Thereafter accused Vicky Chaudhary along with his accomplices tried to kidnap him and gave beatings to the complainant and hence, present complaint.
FIR No. 65/1998 P.S. Sriniwaspuri Page No.4 of 21
2. On the basis of the above mentioned complaint, the present FIR was registered. Investigation was carried out and on the conclusion of the investigation, charge sheet was filed. Copy of the charge sheet was supplied to the accused in compliance of Section 207 Cr.P.C.
3. On the basis of material placed on record, charge was framed against the accused persons under Section U/s 323/342/365/34 IPC to which they pleaded not guilty and claimed trial.
4. Prosecution cited 15 witnesses. However, prosecution examined only ten witnesses to prove its case.
Public witnesses, namely, Vijay Kumar, Rakesh & Mannovar were dropped on 10.12.2012. IO HC Prem Chand & HC Om Prakash reported as untraceable and they were dropped.
It is evident to discuss the testimonies of all the prosecution witnesses in the present matter.
PW1 Shri Aftab (the complainant) deposed that on 21.01.1999 in the night at about 11:00PM while he was taking his meal at his residence at Okhla, EBlock. In the meantime one Pawan entered in his house and thereafter accused Vicky Chaudhary also entered the house of the complainant and told him "tere se baat karni hai". Thereafter, complainant FIR No. 65/1998 P.S. Sriniwaspuri Page No.5 of 21 requested "joote to pahnane do" but they did not allow him and took him to Sukhdev Vihar, DDA Market forcibly in a Gypsy and also put one pistol on the temple of the complainant and took him to their office i.e. the control room of the cable TV and had put the shatter down. Thereafter, accused Vicky Chaudhary gave him severe beatings with leg, fists and danda and also took out his cloths and rolled a danda on his legs and gave him electric shock with the wire on his hands, legs and head. Accused Vicky Chaudhary told him as to why he had brought the cable line in his area and at that time accused Abid, Vicky Chaudhary, Pawan & Basanta and others were present but complainant did not remember the name of other persons. All the accused were accompanying accused Vicky who gave beatings to the complainant and accused Vicky Chaudhary threatened the complainant that he would implicate him in a false criminal case. Thereafter, complainant requested to be left and also told the accused persons that he shall leave Delhi and even the cable work since he was the sole bread earner of his family. Accused Vicky Chaudhary had put one key and one screw driver in the pocket of the complainant and threw him in the boundary of PP Sukhdev Vihar. Thereafter complainant became unconscious and regained consciousness in AIIMS Hospital and on next day i.e. on 22.01.1998 police official met him at the hospital and recorded his statement Ex.PW1/A. Further he was running the FIR No. 65/1998 P.S. Sriniwaspuri Page No.6 of 21 cable of Hinduja cable and had entered into an agreement with them to run the cable and therefore the accused persons were annoyed by complainant being working for Hinduja Cable. Complainant had identified the accused persons in the court.
During the crossexamination by Ld. Counsel for all accused persons, PW1 stated that accused Vicky Chaudhary was known to him since 1987 and it was correct that he was working for accused Vickyy Chaudhary as labourer since 1997 and had worked for accused Vicky Chaudhary for two months and used to run the cable network with name of Home Cable. He was attached with technician engineers of Home cable and had left the job of Vicky Chaudhary as he was paid less salary. PW1 stated that he did not remember the number of house in which he was residing as tenant in Okhla Vihar but the name of the landlord was Sharafat and the house measured in the area of 75 yards and there three rooms at the ground floor and the same was single story and one room was tenanted to him. At the time of incident, complainant's friend Rakesh, Vijay and his younger brother Affaq were present in the room but he did not remember if he stated the same to the IO. Thereafter complainant was confronted with the statement Ex.PW1/A regarding the fact of entry of accused Vicky Chaudhary in the house of the complainant and about the statement of complainant FIR No. 65/1998 P.S. Sriniwaspuri Page No.7 of 21 regarding accused putting pistol on his head which he had not stated to the police. Further he raised alarm of him being kidnapped and he did not remember if public persons were available outside his house at that time and there were no other person apart from these four namely Vicky Chaudhary, Pawan, Basanta and others in the control room. Complainant stated that he did not know if accused Abid and one Rashid were running cable network through Vicky Chaudhary in the area of Gaffar Manzil and Okhla Vihar. However, he knew Abid & Rashid also since 1998. Thereafter, complainant was confronted with the date of incident as in his examinationinchief he mentioned the same to be 21.01.1999 instead of 1998 and later mentioned that he did not remember if he had raised any alarm when he was taken by the accused persons forcibly in the vehicle and that the office of the accused persons were about 03 and half km from his residence. He did not remember if there was any traffic on the road and that he was unconscious when the accused persons had thrown him at the police post of Sukhdev Vihar. W1 denied upon being asked by Ld. Counsel for accused that he was not caught by watchman of the area while stealing from the car and taken to accused Vicky Chaudhary who handed over him to the P.P. Sukhdev Vihar and public had givne him beatings. Further, PW1 denied that he had mentioned the same to doctor on duty.
FIR No. 65/1998 P.S. Sriniwaspuri Page No.8 of 21
PW2 Inspector Satender Sangan deposed that on 28.04.1998 he was posted as Incharge of P.P. Sukhdev Vihar and the present case was marked to him for further investigation. Thereafter, he had arrested the accused persons in October 1998 as accused Abid was granted anticipatory bail and accused Basanta was arrested on 20.01.1999 and he had prepared the arrest documents and recorded his disclosure statement and got issued NBW against accused Vicky Chaudhary and Pawan.
Opportunity to crossexamine PW2 was granted to all accused but they did not question anything to PW2.
PW3 HC Surender Singh deposed that on 20.01.1999 while he was posted at P.P. Sukhdev Vihar he joined investigation of present matter and accused Basanta was arrested by IO who recorded his disclosure statement vide Ex.PW3/A and at the instance of accused Basanta, pointing out memo of place of commission of offence was prepared vide Ex.PW3/B. Accused Abid was also arrested on 09.10.1998 and at his instance, pointing out memo Ex.PW3/C of the place of commission of offence was prepared and his disclosure statement Ex.PW3/D was prepared.
During his crossexamination by Ld. Counsel for accused Abid & Basanta, PW3 stated that he was posted at P.P.Sukhdev Vihar in the year 1999 and accused Abid was arrested at PP Sukhdev Vihar and the FIR No. 65/1998 P.S. Sriniwaspuri Page No.9 of 21 disclosure statement of accused Abid was in the handwriting of IO.
Opportunity to crossexamine PW3 was granted to the accused Vicky Chaudhary but he did not question anything to PW3.
PW4 Shri Sharafat Ali deposed that he knew the complainant Aftab as he was his tenant. On 21.01.1998 at about 11:00PM when he was present at his house, he heard some commotion from the room of Aftab and saw that the accused Vicky Chaudhary along with his 56 companion abducted the complainant in their car and had taken him to the control room of Vicky Chaudhary in Sukhdev Vihar. Thereafter he reached the control room and saw that complainant Aftab was tortured by the accused persons and he was severally beaten by accused persons. He called the police and complainant was taken to police post.
During leading question put by the Ld. APP, PW4 answered that he could say that complainant was tortured by the accused persons since there were injuries on him and thereafter PW4 identified the accused persons.
During the crossexamination by Ld. Counsel for all the accused persons, PW4 stated that he was not related to the complainant and at the time of incident Aftab was accompanied by Munnavar and other name he did not remember. Further he did not try to save the complainant when he was abducted by the accused persons and Aftab had not tried to run FIR No. 65/1998 P.S. Sriniwaspuri Page No.10 of 21 away or resist when he was taken by the accused persons and it was correct that he had not seen the accused persons beating the complainant Aftab and he reached the control room in the morning since he was informed by the brother of the complainant that he had not returned.
PW5 ASI Jaivir Singh (duty officer) has registered the present FIR vide Ex.PW5/A and endorsed the rukka vide Ex.PW5/B. Opportunity to crossexamine PW5 was granted to all the accused but they did not question anything to PW5.
PW6 Constable Pratap deposed that on 22.01.1998 complainant came to the police station in injured condition and narrated the incident to HC Prem Chand and thereafter complainant was taken to AIIMS Hospital for medical examination upon the directions of IO. Thereafter, he returned to the police station and handed over the MLC to IO HC Prem Chand. IO recorded the statement of complainant and upon the same FIR registered and after registration of same PW6 went to the spot and handed over the original rukka and copy of FIR to IO. IO recorded his statement.
During the crossexamination by Ld. Counsel for accused Vicky Chaudhary and Basanta Singh, PW6 stated, injured came to police station alone and blood was not oozing from the injuries but there were some injuries and the same were not visible.
FIR No. 65/1998 P.S. Sriniwaspuri Page No.11 of 21
During the crossexamination by Ld. Counsel for accused Abid, PW6 stated that injured Aftab along with accused Vicky Chaudhary had come to the police station first and they remained there for about 25 minutes before the injured was taken to AIIMS and he did not remember if IO had made any inquiry in respect to the present matter from both of them and he did not remember if IO recorded their statement before sending him to the hospital. Thereafter, PW6 along with IO and injured went to the hospital by bus. Further rukka was prepared at the hospital and thereafter he went to the police station Sriniwaspuri for registration of FIR and returned to the spot. Further he did not remember how many statements were recorded by the IO at the spot, or whether any public person from locality made witness. Injured had not come with him from the hospital.
PW7 HC Kiranpal deposed that he joined the investigation with IO SI Satender Sangwan and during investigation accused Basanta Singh was arrested on the basis of secret information and thereafter disclosure statement of accused Basanta was recorded vide Ex.PW3/A. Upon pointing out of accused, memo Ex.PW3/B was prepared and IO recorded his statement.
During the crossexamination by Ld. Counsel for accused Abid & Basanta, PW7 stated that he joined the investigation at 09:00AM at FIR No. 65/1998 P.S. Sriniwaspuri Page No.12 of 21 PP Sukhdev Vihar. Thereafter he along with IO went to DDA Market where the accused was arrested at around 10:00AM. He along with SI Satender Sangwan and Ct. Surender remained at the place of arrest. Apart from disclosure statement of accused, no other document was prepared by IO and he had not made any departure or arrival entry before joining investigation.
Opportunity to crossexamine PW7 was granted to the accused Vicky Chaudhary but he did not question anything to PW7.
PW8 Shri Ajit Singh (record clerk) proved the MLC No.5242 prepared by Dr. Atul Sameiya, who stated that the same had been destroyed as per order issued by M.S. Dated 31.08.1968 vide Letter No.F.103/68 and only identified the signature of the concerned doctor and MLC was Ex.PW8/A. Opportunity to crossexamine PW8 was granted to all the accused but they did not question anything to PW8.
PW9 Inspector Ranjay Atrishya deposed that on 15.05.2000 he was Incharge of P.P. Sukhdev Vihar and investigation was marked to him and he had arrested the accused Vicky Chaudhary and conducted his personal search vide Ex.PW9/A and his disclosure statement was recorded vide Ex.PW9/B. He recorded the statement of witnesses U/s 161 Cr.P.C. and subsequently was transferred. He handed over the present case file to MHC(R).
FIR No. 65/1998 P.S. Sriniwaspuri Page No.13 of 21
During the crossexamination by Ld. Counsel for all the accused, PW9 stated that he had not prepared the arrest memo of Vicky Chaudhary although he was arrested by him. Disclosure statement was recorded on 15.05.2000 that is when the incident had taken place in the year 1998. Further no public witness was made to the disclosure statement of accused Vicky Chaudhary. He had not recorded the statement of any public witness during investigation.
PW10 Inspector Atul Kumar deposed that on 23.01.1998 the investigation of this case was marked to him and he collected the MLC of injured and upon searching the accused could not be traced. On 26.03.1998 he was transferred.
5. After completion of the prosecution evidence, prosecution evidence was closed and statement of the accused as mandated by Section 313 r/w 281 Cr.PC was recorded and all the incriminating circumstances came in evidence put to the accused for explanation where accused Vicky Chaudhary stated that complainant was given beatings by the colony guards as the complainant was found stealing articles from the car and thereafter complainant informed the guard that he was working for him upon which he was brought to the house of accused Vicky Chaudhary in the morning at FIR No. 65/1998 P.S. Sriniwaspuri Page No.14 of 21 about 04:30AM. At that time, complainant was badly beaten by the guard therefore the accused Vicky Chaudhary took complainant to P.P. Sukhdev Vihar and that he was innocent.
The accused Basanta Singh and Abid Hussain also stated that they were innocent and had been falsely implicated.
6. No defence witness was examined on behalf of the accused.
7. Before appreciating the evidence, I would like to have a glance at relevant statutory provisions necessary for the disposal of this case.
As per Section 365 IPC :
Kidnapping or abducting with intent secretly and wrongfully to confine person--Whoever kidnaps or abducts any person with intent to cause that person to be secretly and wrongfully confined, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
As per Section 342 IPC:
"Whoever wrongfully confines any person shall be punished with imprisonment of either description for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both."FIR No. 65/1998 P.S. Sriniwaspuri Page No.15 of 21
As per Section 323 IPC:
Punishment for voluntarily causing hurt--Whoever, except in the case provided for by Section 334, voluntarily causes hurt, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both.
8. Learned APP for the State had argued that all the prosecution witnesses had supported the case of the prosecution and all the witnesses in their testimonies have very clearly deposed that the accused persons had wrongfully confined the complainant and gave him beatings, therefore, are liable for offences alleged against them.
9. On the other hand, the Ld. Counsel for the accused has argued that the prosecution has failed to establish its case since the prosecution witnesses in their crossexamination has not corroborated the story of prosecution and there are material contradiction in the deposition of witnesses. He has further argued that story of prosecution is not believable since as per the allegations of the complainant he was abducted in the presence of his brother and friends and that is when neither his brother nor his friends reported the matter to police on the day of incident which allegedly FIR No. 65/1998 P.S. Sriniwaspuri Page No.16 of 21 took in the night, till morning. Further, PW4 who is the only public witness examined by the prosecution and is stated to have witnessed the incident also had stated during his examination that he had seen the accused persons taking the complainant and believed that the complainant was tortured but had not reported the matter to the police and in fact, left to look for the complainant, upon the information received from the brother of the complainant next morning. Further during crossexamination PW4 categorically stated that he did not witness the alleged beatings given by the accused to the complainant and accused persons are liable to be acquitted.
10. I have heard Learned Counsel for accused and Learned APP for the State and gone through the material available on record and has considered the testimony of various witnesses and gone through the evidence on record.
11. I am of the considered view that in the present matter, the star witness of the prosecution was the complainant who during his cross examination was confronted by Ld. Counsel for accused persons on the point of his statement to the effect that he was asked by the accused persons to put down his clothes and then a danda was rolled over his body and he was FIR No. 65/1998 P.S. Sriniwaspuri Page No.17 of 21 given electric shock by wire on his hands, legs and head. Further on the point that he had not informed the police that the accused persons had not allowed him to wear his shoes and also that a pistol was put on his temple by the accused persons and shutter of the office was put down. Further the complainant was confronted on the date of incident as he had mentioned in his examinationinchief the same to be on 21.01.1999, but he had stated in his statement Ex.PW1/A same to be 21.01.1998. Further, PW4 could not identify the accused unless the Ld. AP had put a leading question to him.
12. I have perused the evidence on record and arguments advanced by the parties. I am of the considered view that in the present matter the prosecution has failed to prove the offences alleged against the accused persons beyond reasonable doubt. If we carefully peruse the statements of PW1/complainant, there are material improvements in the statement given by him before the court during examinationinchief and one stated by him Ex.PW1/A. The MLC Ex.PW8/A categorically mentions "alleged history of beaten by public" and further the same was reiterated by IO in his request letter for medical examination of the complainant to the AIIMS Hospital stating that the complainant be examined as he had been brought to PP Sukhdev Vihar after being beaten by the public while stealing FIR No. 65/1998 P.S. Sriniwaspuri Page No.18 of 21 stereo system from the car. Further in the present matter the prosecution has failed to establish the offence of kidnapping as the basic ingredients for the offence of kidnapping are completely missing. As far as the offence U/s 323 IPC is concerned, perusal of MLC shows that the complainant was completely conscious and fully oriented at the time of examination and it is opined by the treating doctor that there was no sign of external injury which shows that the contention of the complainant that he was given severe beatings and he was unconscious after being thrown by the accused persons is highly improbable and cannot be believed. Further PW1 in his examinationinchief had stated that he was given electric shock with wires on his hand, legs and temple area which is nowhere opined in the MLC. PW4 who is only public witness, examined by prosecution, apart from complainant, has also stated in his testimony, that he had not seen the accused persons giving beatings to the complainant and he had allegedly reached the place of offence only in the morning and had sent information to the police which is completely contradictory to the deposition or PW6 Ct. Pratap who had stated in his testimony that injured Aftab was brought to the police station by accused Vicky Chaudhary who remained at PP Sukhdev Vihar for 25 minutes before injured/complainant was sent to AIIMS and also stated that IO recorded statement of complainant at hospital which again shows that the complainant FIR No. 65/1998 P.S. Sriniwaspuri Page No.19 of 21 was not unconscious as alleged by him in his complaint. There are no specific allegations against accused Abid Hussain & Basanta Singh, therefore the prosecution has miserably failed to prove its case beyond reasonable doubt.
13. The cardinal rule in the criminal law is that prosecution has to prove their case beyond reasonable doubt and the benefit of the doubt has to be given to the accused.
In Partap V. State of U.P., AIR 1976 SC 966, the Hon'ble Supreme Court dealt with the question of burden of proof and observed as under:
"The phrase "burden of proof" is not defined in the Act. In respect of criminal, cases, it is an accepted principle of criminal jurisprudence that the burden is always on the prosecution and never shifts. This flows from the cardinal principle that the accused is presumed to be innocent unless proved guilty by the prosecution and the accused is entitled to the benefit of every reasonable doubt.
14. In view of above discussion, the accused Abid Hussain, Basanta Singh, Vicky Chaudhary are acquitted of offences punishable U/s 323/342/365/34 IPC.
FIR No. 65/1998 P.S. Sriniwaspuri Page No.20 of 21
15. File be consigned to Record Room after due compliance, with direction to get it revived as and when the accused Pawan Kumar s/o Shri Jai Bhagwan is arrested or appears before the Court.
Pronounced in open court (SHEETAL CHAUDHARY PRADHAN)
on 12.01.2015 MM10 (SouthEast): Saket Courts:
New Delhi:12.01.2015
FIR No. 65/1998
P.S. Sriniwaspuri Page No.21 of 21