Delhi District Court
State vs Mobin on 29 November, 2024
IN THE COURT OF JUDICIAL MAGISTRATE FIRST
CLASS-08 (CENTRAL), TIS HAZARI COURTS : DELHI
PRESIDING OFFICER: MS. SAYESHA CHADHA, DJS
FIR No. 332/2014
PS : Chandni Mahal
U/s 323/451/506/34 IPC
State vs. Mobin and Ors.
Date of Institution of case: 12.02.2015
Date when Judgment reserved: 16.11.2024
Date on which Judgment pronounced: 29.11.2024
JUDGMENT
A. Case No. : 290750/2016
B. Date of Institution of Case : 12.02.2015
C. Date of Commission of Offence : 17.12.2014
D. Name of the complainant : Sh. Muqeem Ahmed
E. Name of the Accused : 1. Mobin
2. Azim
3. Muntazeem
All s/o Sh. Yasin and R/o H.
NO.1227, Gali Hakeem Beg,
Kalan Mahal, Chandni
Mahal, Delhi.
F. Offences complained of : U/s 323/451/506/34 Indian
Penal Code
G. Plea of the Accused : Pleaded not guilty
H. Final order : Accused Mobin and Azim
are convicted and accused
State Vs. Mobin and Ors.
FIR No. 332/2014
PS Chandni Mahal
1/27
Muntazim is acquitted.
I. Date of such order : 29.11.2024
Brief statement of reasons for decision of the case:
1. The case of prosecution in brief is that on 17.12.2014 at 7:30 pm at H. No.1248, Ground Floor, Gali Jamun Wali, Kalan Mahal, Chandni Mahal, Delhi, all accused persons in furtherance of commong intention in order to pressurize the complainant Mukeem Ahmed and forcibly entered into the said premises and gave threat to the family of the complainant and caused hurt to him and his wife and thereby committed an offence punishable u/s 323/451/506/34 Indian Penal Code, 1860 (hereinafter called as IPC).
2. Upon conclusion of investigation, a final report was filed before the court on 12.02.2015 against all the accused persons. Cognizance of offence punishable was taken. Upon summoning, the accused persons appeared and copies of charge sheet were supplied to all the accused persons in compliance of Section 207 of The Code of Criminal Procedure, 1973 (hereinafter called as Cr.P.C). Thereafter, charge for offence punishable u/s 323/451/506/34 IPC was framed against all the accused persons to which they pleaded not guilty and opted for trial.
3. Thereafter, the prosecution was given the opportunity to substantiate the allegations against the accused. The prosecution examined 4 (four) witnesses in support of its case:
State Vs. Mobin and Ors.FIR No. 332/2014
PS Chandni Mahal 2/27
4. PW-1 Muqeem Ahmad has deposed in his examination-in- chief that on 17.12.2014 at about 7.30 pm, he was present in his house and he was having rest. He heard the sound of beating of main gate of his house. Two persons namely Mubeen and Azeem who are his relatives (bhateeje) came inside. Both of them had told him that he should go to Amroha. He could apprehend from the facial expression of both accused persons namely Mubeen and Azeem that they were there with the intention of fighting with him and they did not behave well with him. He had questioned them by stating 'mai kyun jaun Amroha' and he questioned them why they were asking to move Amroha. They had told that if he would not go to Amroha right now then he would not be able to go to Amroha ever. His ancestral property exists in Amroha. He had also told them that the ancestral house belongs to everyone of the family why he should move to Amroha. Family of accused persons is residing in Amroha. Also, there is one case going on concerning the encroachment of whole ancestral house by tempering of documents from the side of accused persons. Thereafter, accused persons started hurling abuses to him and engaged with scuffle with him and had given him beatings. Thereafter, his wife Praveen Bano had seen and she tried to intervene. Then accused persons also abused her and pushed her and given beating to her also. His children had seen this and they made loud noise. Upon hearing their noise neighborers had come inside the house. Accused persons had ran away from the house after seeing neighbourers. Even it was State Vs. Mobin and Ors.
FIR No. 332/2014PS Chandni Mahal 3/27 apprehended by his as well as neighbour that accused persons might have some weapon at that time. He had seen that accused Muntazeem was present on the gate while Mobin and Azeem had run out of his house. He identified all the accused persons. He had made a 100 no. call and police had come at his house. His statement was recorded by police officials Ex. PW1/A. He was taken for his medical examination by police officials. He got information that accused Muntazeem was also standing on the outside gate by his wife and neighbor.
5. During cross-examination of the witness by Ld. Counsel for the accused persons, PW-1 stated that he was aware that police had recorded his statement and had obtained his signatures on it. He voluntarily stated that he did not remember whether any other statement bearing his signature was recoded by police. He admitted that the dispute regarding Amroha property was mentioned by him to police officials. (Confronted with the previous statement Ex. PW1/A where it is not so recorded. Objected to by Ld. APP for the state. (It has been mentioned in one CrPC statement that one masala regarding Amroha property was going on) He admitted correct that he had not mentioned the fact of tempering the documents by accused in Ex. PW1/A. He denied that he had made deliberat and intentional improvement in his statement. He admitted that he had not mentioned name of any neighbour in his statement Ex. PW1/A and 161CrPC Statement. Police had not recorded the statement of any neighbour in his presence. He State Vs. Mobin and Ors.
FIR No. 332/2014PS Chandni Mahal 4/27 admitted that H. No. 1248 in which he was residing in a tenanted house and still he was residing there. He denied that father namely Yasin of accused persons and all accused persons were resided in the said house i.e., H. No. 1248. He voluntarily stated that his elder brother Shamim who recorded tenant in receipt kept them for some time in the tenanted premises as Yasin used to work with Shamim. He was the tenant. When he moved in the said premises his parents was alived and he had moved with them and not with his brothers. He denied that he and his parents were brought in the said premises by his elder brother Shamim. He admitted that the rent receipts were issued in the name of Shamim. He voluntarily stated in the year 1999, he became the registered tenant and the receipts were issued in his name. He denied that he had filed the false case against accused persons to oust them from H.No.1248 as earlier his brother, namely, Yasin residing in that house alongwith his family. Aadhar card of Yasin Ahmed (father of accused persons) shown to the witness and the Aadhar card having house address of Yasin as H. No. 1248. The copy of the Aadhar exhibited as Ex. PW1/D1. The voter ID card of Yasin Ahmed exhibited as Ex. PW1/D2. Father of accused Yasin was residing in the said address in the year 2011 when this Adhar card was prepared. He voluntarily stated that Aadhar card prepared on the basis of Voter ID card and there was no address change in voter ID card and therefore Aadhar was got prepared on that basis only. Aadhar was not prepared by physical verification. He denied that no such incident had happened or that State Vs. Mobin and Ors.
FIR No. 332/2014PS Chandni Mahal 5/27 he was deposing against the accused persons to falsely implicate them because of his personal grudges or that he was deposing falsely. He denied that he wants to grab the property H. No. 1248 and oust the accused and their father from tenanted house.
6. PW-2 Parveen has deposed in his examination-in-chief that on 17.12.2014 at about 7.30 pm, his husband had a fever and she was taking rest while laid down on bed. She was present in the kitchen. She has correctly identified the accused present in the court today. All accused persons entered their house. Accused Mumtazeem stands near inside the gate and accused Mobin and Azim entered in his room where her husband was present. She came out from the kitchen and asked both of them "kya baat hai". Accused Mobin and Azim told that "hamare babu/baap Mukim Ahmed ko bula rahe hai jo milna hai abhi mil jayega baad me nahi milega". Her husband objected. Accused Mobin and Azim started beating her husband. She and her children raised the alarm. Accused Mumtazeem ran away from the spot. She tried to save her husband and accused Mobin and Azim started beating her also. Their neighbours came and intervene and save them. Her husband severely beaten by the accused Mobin and Azim and he got bleeding on his face and his eyes got swelling. Eye of her husband got dark. They call at 100 number. The accused Mobin and Azim threatened her husband to kill him.
7. During cross-examination of the witness by Ld. Counsel for State Vs. Mobin and Ors.
FIR No. 332/2014PS Chandni Mahal 6/27 the accused, PW-2 stated that her statement was recorded in PS. Her statement was recorded in the night of 17.12.2014. After making 100 number call the police came at our house. The police officials took them, her and her husband at PS Chandni Mahal. After the proceedings in PS, they came back at their house. They came back at their house with their relatives, no police official was accompanied them. The police officials did not inquire with the neighbours about the incident. He did not know whether the police officials recorded the statement of their neighbours regarding the incident. She and her husband did not file any case regarding the property in Amroha, UP. She got married in the year 2005 and since then she alongwith her husband residing in the H. No. 1248, Kala Mahal, Jamun Wali Gali, Pataudi House, Daryaganj, New Delhi. He denied that Mohd. Shamim, Mohd. Yasin were residing in the above said tenanted propert or the rent receipt in the name of Mohd. Shamim. He denied that Mohd. Yasin used to reside in the above-said tenanted property. She and her husband to grab the said property and tried to oust the accused and their father from the tenanted house. He denied that he had made deliberate and intentional improvement in his statement. Her medical examination was not conducted in the present case. They remained at the PS for about 2-3 hours. He denied that he was deposing falsely at the instance of her husband. He denied that the accused was falsely implicated in the present case due to personal vendetta regarding the property.
FIR No. 332/2014PS Chandni Mahal 7/27
8. PW-3 Ct. Sumit has deposed in his examination-in-chief that on 17.12.2014, he was posted as constable PS Chandni Mahal. On that day after receiving the PCR call regarding the quarrel by IO ASI Kishan Pal, he joined the investigation with him and reached at H.No.1248, Gali Jamun Wali, Chandni Mahal Delhi and met with complainant Mukeem Ahmad who disclosed that his two nephew namely Mobin and Azim had quarreled with him and accused persons had ran away from the spot. Thereafter, IO recorded the statement of complainant and prepared rukka, same was handed over to him for the registration of the FIR. He got the FIR registered. After registration of the FIR he returned at the spot and handed over the copy of FIR and rukka to the IO. IO prepared the site plan at the instance of complainant in his presence vide Ex- PW-3/A. IO tried to search the accused persons but could not be traced. He alongwith IO visited the house i.e., 1227,Gali Sunar Wali, Chandni Mahal in search of accused persons. Accused Mobin and Azim were present there IO apprehended them and interrogated them. After interrogation IO arrested and personally searched both the accused persons vide memos EX- PW-3/B, EX- PW-3/C, EX- PW-3/D and EX- PW-3/E. He has correctly the accused persons. IO recorded the discloser statement. After the arrest of the accused persons, he along with Ct. Ashok went to LNJP Hospital for the medical examination for the accused persons. After medical examination they reach at the PS. Chandni Mahal and handed over the accused persons to the IO who lodged them in lockup.
FIR No. 332/2014PS Chandni Mahal 8/27 Thereafter, IO recoded his statement under Section 161 Cr.P.C and set him free from this case.
9. During cross-examination of the witness by Ld. Counsel for the accused, PW-3 stated that IO received the call at around 7.30 PM and he went with IO at the spot within 5 minutes. The statement of the complainant was recorded at the spot by the IO. He remained at the spot with IO for 10 minutes for recording his statements. He took the Rukka at PS at around 9.00 PM. He remained in the PS around one hour for recording the FIR. IO was remained present at this spot. He reached at the spot at around 10.00 PM with the copy of the FIR and handed over the same to IO. In his presence IO inquired from the neighborer, he cannot tell the name of the neighbor. The wife of the Complainant at the spot who was crying loudly by saying that he got hurt. Public person were present at the spot 4-5 public persons were present at the spot. In his presence, IO did not recorded statement of public persons. At the instance of the complainant, they reached the house of the accused at around 12.30-01.00AM. They brought the accused persons to PS and prepared the arrest memo at PS. At around 1.30 AM, they took the accused persons for medical examination. They took around one hour to return to the PS after medical examination. He denied that the accused person falsely implicated in this case at the instance of the complainant. He denied that he was deposing falsely.
FIR No. 332/2014PS Chandni Mahal 9/27
10. PW-4 SI Kishan Pal has deposed in his examination-in-chief that on 17.12.2014, he was on emergency duty. On that day, he received the call regarding the quarrel at about 07:55 pm. He alongwith Ct. Sumit reached at H.No-1248, Gali Jamun Wali, Chandni Mahal Delhi and met with complainant Mukeem Ahmad. On 17.12.2014, on receiving DD No. 27A, he alongwith Ct. Sumit reached at H.No. 1248, Gali Jamun Wali, Chandi Mahal, Delhi and met with the complainant Mukeem Ahmad and his wife. He recorded the statement of the complainant Ex.PW-1/A. After recording the statement of the complainant he alongwith Ct. Sumit and W/Ct and the complainant and his wife went to the LNJP for their medical examination. He collected the MLC of the complainant and his wife. He prepared rukka Ex.PW-1/A from point to X to X-1 and handed over the same to Ct. Sumit for the registration of FIR. He returned at the spot alongwith complainant and his wife. After sometime, Ct. Sumit came back at the spot and handed over the copy of FIR and original rukka to him. He prepared the site plan at the instance of complainant Ex.PW-3/A. He recorded the statement of Ct. Sumit u/s 161 Cr.PC. He alongwith Ct. Sumit tried to search the accused persons but they could not be traced. Thereafter, he alongwith Ct. Sumit visited the H. No. 1227, Gali Sunar wali Chandni Mahal, Delhi in search of the accused persons. Accused Mobin and Azim were present there and he apprehended and interrogated them. After interrogation he arrested and personally searched both the accused persons vide State Vs. Mobin and Ors.
FIR No. 332/2014PS Chandni Mahal 10/27 memos EX- PW-3/B, EX- PW-3/C, EX- PW-3/D and EX- PW-3/E. He has correctly identified accused Mobin and Azim. He recorded the disclosure statement of both the accused persons vide memo are Ex.PW-4/A and Ex.PW-4/B. Both the accused persons were got medically examined at LNJP Hospital and later on both the accused persons were lodged in the lockup of the PS Chandni Mahal. On the next day, i.e. 18.12.2014, both the accused persons were produced before the concerned court and sent to JC. Thereafter, on 18.12.2014 complainant and his wife came to the PS and handed over one complaint Mark-X. He carried out further investigation and interrogated the third accused namely Muntazeem and he was bound down (not arrested). He recorded the statement of witnesses u/s 161 Cr.PC and they were discharged. After the completion of the investigation, he filed the chargesheet in the concerned court.
11. During cross-examination of the witness by Ld. Counsel for the accused, PW-4 stated that no public person were present at the spot when he reached at the spot. No neighbor were present at the spot alongwith the complainant and his wife. He tried to gather the information about the incident from the neighbors, but they refused to disclose anything about the incident/quarrel. He reached at the spot around 08:10 pm. He remained at the spot at about half and hour, thereafter, he alongwith complainant and his went to hospital at about 09:00 pm. They came back at the spot at about 09:45 pm from the hospital. He had not collected any CDR and CAF report of the accused persons regarding their presence at the spot on the State Vs. Mobin and Ors.
FIR No. 332/2014PS Chandni Mahal 11/27 date of incident. There was no CCTV camera installed at the spot or area. He denied that CCTV camera were installed in the street. He admitted that he had not recorded statement of public witness other than complainant and his wife. He denied that he had not carried out the fair investigation in this case. He denied that he falsely implicated all the accused persons at the instance of the complainant and his wife.
12. Vide joint statement of the accused persons recorded u/s 294 CrPC, the accused persons admitted the factum of registration of FIR Ex.AD/A1, endorsement on rukka Ex.PW1/A, MLC NO. EBL011782 and EBL011782 both dated 17.12.2014 Ex.AD-1 and Ex.AD-2 without admitting the contents of the same.
13. The prosecution evidence was closed on 02.12.2022 and the statement of all the accused persons was recorded under Section 313 read with section 281 of CrPC on 06.03.2023, wherein they pleaded their innocence and stated to have been falsely implicated. The accused persons examined three witnesses in their defence.
14. DW-1 Kamaal Ahmad has deposed that he knew very well about the complainant namely Mohd. Muqeem who was residing at 1248, Gali Jamun Wali, Kalan Mahal, Delhi. He also know very well about the accused persons. He knew them for the last 20 years as they are residing in his locality. Earlier, father of all accused namely Mohd. Yasin used to reside in H. NO. 1248, Gali Jamun Wali, Kalan Mahal. Complainant want to oust the father of accused State Vs. Mobin and Ors.
FIR No. 332/2014PS Chandni Mahal 12/27 persons from the house bearing house no. 1248, Gali Jamun Wali, Kalan Mahal. Accused persons are tenant in the said house. There was a dispute between complainant and father of accused persons regarding the ancestral property and was pending at Amroha, UP. Complainant falsely implicate the accused persons to settle the score with the father of accused persons so that the dispute of ancestral property at Amroha would be settled. Complainant was a police informer so they falsely implicated the accused persons in the present case. No such incident happened with the complainant as mentioned by the complainant in the said case. There was no case pending against the accused persons. They are hard working, self employed and good person of the locality. No one having any complaint against accused persons.
15. During cross-examination of the witness by Ld. APP for the State, DW-1 stated that he did not know anything about the facts of the present case. He admitted that he had not placed any document on record to prove that there was a dispute between the complainant and the father of accused persons regarding the ancestral property. The incident had not taken place in his presence. He voluntaritly stated that he came at the spot after half an hour. The incident took place at 1248, Gali Jamun Wali, Kala Mahal, Delhi. He admitted that he did not reside in the same street where the abovesaid property was situated. No one called him at the spot. He get to know about the incident from the person namely Qutbuddin who reside at 1255, Gali Jamun Wali. He was just State Vs. Mobin and Ors.
FIR No. 332/2014PS Chandni Mahal 13/27 passing through the alleged spot. He voluntarily stated that it was his daily routine to pass through property no. 1255, Gali Jamun Wali. He denied that he was deposing falsely to save accused persons from the perils of the case as the father of all the accused persons are his close friend. He admitted that the father of all accused persons namely Mohd. Yaseen are his close friend. He denied that he was deposing falsely as he was in good terms with the complainant. He admitted that he had not produced any document to prove that the accused persons are tenant in the house No.1248, Gali Jamun Wali. He used to reside in the same locality and he was aware that complainant use to give information to police about local people. He denied that the complainant was not a police informer. He denied that the accused persons are not falsely implicated in the present case. He denied that accused persons were not hard working, self employed and good persons of the locality. He denied that he was deposing falsely.
16. DW-2 Shehfaz has deposed that he working in Pharma Company. All accused persons and complainant are his relatives. The complainant is his father's and mother's cousin brother and the accused persons are his cousin brothers. Complainant Mukeem want to take over the possession of the property H. No. 1248, Gali Jamun Wali, Chandni Mahal, Delhi. Therefore, the complainant has alleged false case against the accused persons.
17. During cross-examination of the witness by Ld. APP for the State Vs. Mobin and Ors.
FIR No. 332/2014PS Chandni Mahal 14/27 State, DW-2 stated that he did not know any facts about the present case, but he later got to know from his relatives that quarrel to place between the complainant and accused persons. He did not exactly when he visited at H. No. 1248, Gali Jamun Wali, Chandni Mahal, Delhi. He voluntarity stated that he might have visited 3 to 4 years back. He admitted that that he was not present at the spot at the time of incident. He came here to give his statement at the instance of all the accused persons. When he last visited at H. No. 1248, Gali Jamun Wali, Chandni Mahal, Delhi. He met the wife of the complainant. He visited there to give marriage invitation card to his uncle/chacha/complainant. The fuffi/aunty of the accused Azeem told him that the complainant want to acquire above the whole said property. He denied that fuffi/aunty had never mentioned him the above said facts. He denied that he was taking her name at she had already expired. He denied that he was deposing falsely to save the accused persons from the present case and also as he was not in good terms with his uncle/complainant.
18. DW-3 Md. Azeem has deposed that the present case was filed against him as the complainant family and his father's family used to reside together at the H. No. 1248, Gali Jamun Wali, Chandni Mahal, Delhi. His father also worked from the above-mentioned address. Thereafter, the family got extended his Tauji/uncle namely Shamim and his Chahcha/uncle namely Ibrahim both left the above said address after taking their share. After that complainant and his father's family resided there. Thereafter, due to some reasons, they State Vs. Mobin and Ors.
FIR No. 332/2014PS Chandni Mahal 15/27 went their native place/village. After a long time approximately one and half years, they again visited the above said house but the complainant did not allow to entered the above said premises neither allowed them to took our goods and articles which they left there. Thereafter, complainant filed a false case against us without our fault though there was no dispute between them so that they do not enter the said premises. He got to know about the present case when the police official called him telephonically at the PS. When he visited the PS police officials told him that the complainant has filed the present against all of them. Thereafter, police officials arrested them and sent them to the Jail.
19. During cross-examination of the witness by Ld. APP for the State, DW-3 stated that he did not know when his Tauji and his chacha namely Shamim and Ibrahim respectively left the above said premises after taking their share. His father has five brothers and three sisters. All his uncles/tauji and chacha including his father reside in the above said house. He denied that on 17.12.2014 at about 07:30, he alongwith co accused persons namely Muntzim and Mobin went to the H. No. 1248, Gali Jamun Wali, Chandni Mahal, Delhi. He denied that all accused persons in furtherance of common intention to pressurize the complainant Mukeem Ahmad/complainant force ably entered the said premises and gave threat to the complainant and his family. He denied that all accused persons had caused hurt to the complainant and his wife. He denied that on the above said day, all accused persons had threatened the State Vs. Mobin and Ors.
FIR No. 332/2014PS Chandni Mahal 16/27 complainant and asked him to leave the above said house and go to Amroha. He denied that he alongwith co-accused persons had abused the wife of the complainant and pushed her and also gave beating to her. He denied that they were forcibly trying to enter the said premises though they do not used to reside there. He denied that the complainant has not filed any false case against them. He denied that he was deposing falsely.
20. The defence evidence was closed on 26.06.2023. Final arguments were heard. I have cogitated over the submissions made by ld. APP for the state and Ld. Counsel for the accused persons.
DISCUSSION, DECISION AND REASONS THEREON:
21. I have heard the arguments addressed by the Ld. APP for state and the Ld. Counsel for the accused persons. Record perused carefully.
22. In order to ensure convenient appraisal of evidence, the following points of determination have been framed.
1. Whether the accused persons, namely, Mobin, Azim and Muntazim in furtherance of their common intention forcibly entered into the house of the complainant with the intention to commit criminal intimidation and hurt.
2. Whether the accused persons, namely, Mobin, Azim and Muntazim in furtherance of their common intention caused bodily pain to the complainant and his wife, thereby committing the State Vs. Mobin and Ors.
FIR No. 332/2014PS Chandni Mahal 17/27 offence u/s 323 IPC.
3. Whether the accused persons, namely, Mobin, Azim and Muntazim in furtherance of their common intention threatened the complainant and his family with injury and with the intention to cause alarm to the complainant, thereby committing the offence u/s 506 IPC.
23. To begin with the appraisal of the evidence, the court shall deal with the first point of determination. Following sub issues have been framed to ensure seamless appraisal of evidence for the first point of determination.
1. Whether the accused persons, namely, Mobin, Azim and Muntazim in furtherance of their common intention forcibly entered into the house of the complainant with the intention to commit criminal intimidation and hurt.
1.1 whether the complainant was in settled possession of the property in question i.e., H.NO.1248, Ground Floor, Gali Jamun Wali, Kalan Mahal, Chandni Mahal.
24. The complainant Muqeem Ahmad PW-1, has categorically stated in his examination-in-chief that on 17.12.2014 at about 7.30 pm, he was present in his house and was having rest. His residence has been mentioned as H.NO.1248, Ground Floor, Gali Jamun Wali, Kalan Mahal, Chandni Mahal. In his cross-examination, he has explicitly denied that the father of the accused persons, namely, Yasin along with the accused persons is residing in the said house. Although, he has admitted that father of the accused persons, State Vs. Mobin and Ors.
FIR No. 332/2014PS Chandni Mahal 18/27 namely, Yasin was residing in the said house in the year 2011. However, as on 2014, the complainant is residing in the above mentioned premises along with his family.
25. PW-2 Smt. Praveen has corroborated the statement of PW-1 and stated to have been in possession of said premises. The police witness PW-3 Ct. Sumit has stated in his examination-in-chief that when he reached at H. no. 1248, he met the complainant PW-1 who disclosed that Mobin and Azim had quarreled with him and ran away from the spot. His statement is also relevant to establish the settled possession of the complainant and his family at the said premises.
26. It is relevant to mention that even the defence witnesses have admitted to the possession of the complainant and his family over the said premises.
27. DW-1 has categorically stated in his examination-in-chief that 'I know very well about the complainant, namely, Mohd. Muqeem who is presently residing at H.NO.1248, Gali Jamun Wali, Kalan Mahal, Chandni Mahal'. In his cross-examination, he has admitted that he does not have any document to prove that the accused persons are tenants in the said property.
28. DW-3 Mohd. Azim has also corroborated the said version and stated that the complainant's family used to reside at H.NO.1248, Gali Jamun Wali, Kalan Mahal, Chandni Mahal. There is nothing on record furnished by the accused persons to establish their rightful possession of the said premises. Moreover, all the State Vs. Mobin and Ors.
FIR No. 332/2014PS Chandni Mahal 19/27 summons served upon PW-1 and PW-2 were issued at the above- mentioned address. The address of the accused persons as mentioned in the bail bonds and in the summons is H. NO. 1227 and not 1248.
29. Therefore, in view of the above said discussion, the prosecution has been able to prove that the complainant and his family has settled possession over the premises in question.
30. The second sub issue to be dealt with is as follows :
1.2 Whether the accused persons entered into the said property with the intention to commit an offence?
31. The prosecution has first examined the complainant as PW-1 who has categorically stated that on 17.12.2014 at about 7.30 pm, when he was present in his house and having rest, he heard the sound of beating of main gate. Two persons, namely, Mobin and Azim came inside. He could apprehend from their facial expressions that they had entered with the intention of fighting. He explicitly states that both of them told him that "if he did not go to Amroha right now, he will not be able to go to Amroha ever". Thereafter, they started hurling abuses and engaged in a scuffle and gave him beatings. He further states that when his wife tried to intervene, accused persons, Mobin and Azim abused her and pushed her away and subsequently, gave beatings to her. His children were making loud noises. Upon hearing the noises, the neighbours came inside the house and the accused persons fled away.
FIR No. 332/2014PS Chandni Mahal 20/27
32. PW-2 has corroborated the version of PW-1 and has identified the accused persons in the court. She has categorically stated that accused Mobin and Azim started beating her husband and when she tried to save him, both of them started beating her as well. Her husband was severely beaten and got bleeding on his face. His eyes were swollen and became dark. Accused Mobin and Azim threatened to kill him.
33. PW-3 Ct. Sumit has also stated to have met the complainant at H.NO.1248 after receiving a PCR call. The complainant disclosed to him that accused Mobin and Azim had quarreled with him and had run away from the spot. His statement is relevant u/s 6 of Indian Evidence Act "as res gestea". In his cross-examination, he has categorically mentioned that the IO in his presence had enquired from the neighbours. Public persons were present at the spot, however, their statements could not be recorded.
34. The factum of PCR call is corroborated by PW-4, SI Kishan Pal who has explicitly stated that the call was received at 7.55 pm. He further states that the MLC of the complainant and his wife were also collected.
35. The fact that no independent witnesses were examined by the prosecution shall not be fatal to their case. It has been held by the Hon'ble Apex Court in the case of Sadhu Saran Singh v. State of U.P. in criminal appeal no. 14671468 of 2005, it was observed by the Apex Court that the case of the prosecution cannot be doubted only on the ground that no independent witness was examined. The State Vs. Mobin and Ors.
FIR No. 332/2014PS Chandni Mahal 21/27 relevant para of the judgment is as follows:
"... 21... vi) As far as the non examination of any other independent witness is concerned, there is no doubt that the prosecution has not been able to produce any independent witness. But, the prosecution cannot be doubted on this ground alone. In these days, civilized people are generally insensitive to come forward to give any statement in respect of any criminal offence. Unless it is inevitable, people normally keep away from the court as they feel it distressing and stressful. Though this kind of human behaviour is indeed unfortunate, but it is a normal phenomena. We cannot ignore this handicap of the investigating agency in discharging their duty. We cannot derail the entire case on the mere ground of absence of independent witness as long as the evidence of the eyewitness, though interested, is trustworthy."
36. Further, the reliance is also placed on the judgment titled as State of U.P. v. Atul Singh etc. 2009(4) Supreme 332) it was held that "merely because eye witnesses are family members, their evidence cannot be disregarded. It was explained by the court that when there is an allegation of interestedness, the same has to be established. Mere statement that being relatives of the deceased they are likely to falsely implicate the accused cannot be a ground to discard the evidence which is otherwise cogent and credible. The court shall also deal with the contention regarding interestedness of the witnesses for furthering the prosecution version. Relationship is not a factor to affect credibility of a witness. It is more often than not that a relation would not conceal actual culprit and make allegations against an innocent person. Foundation has to be laid if plea of false implication is made. In such cases, the court has to adopt a careful approach and analyse evidence to find out whether it is cogent and credible".
FIR No. 332/2014PS Chandni Mahal 22/27
37. In the case of Kapildeo Mandal & Ors. V. State of Bihar; AIR 2008 SC 533, it was held that credibility of eye witness is not to be judged merely on the basis of relationship with the deceased. It was explained by the court that "it is well settled that while appreciating the evidence of the witnesses related to the deceased, having strained relations with the accused party, their evidence cannot be discarded solely on that basis, but the court is required to carefully scrutinize it and find out if there is scope for taking view whereby the court can reach to the conclusion that it is a case of false implication. The credibility of a witness cannot be judged merely on the basis of his close relation with the deceased and as such cannot be a ground to discard his testimony, if it otherwise inspires confidence and, particularly so, when it is corroborated by the evidence of independent and injured witnesses".
38. It is relevant to mention that the testimony of PW-1 and PW-2 is not corroborative of each other qua accused Muntazim. PW-1 has stated that accused Muntazim was present on the gate and while accused Mobin and Azim had run out of the house after quarrel. However, PW-2 mentions that all of them enetered the house but Muntazim was standing near the gate. No specific averments have been made against the accused Muntazim by any of the prosecution witnesses.
39. Therefore, in view of the abovesaid discussion, the prosecution has been able to establish that accused Mobin and Azim had entered the house of the complainant with the intention State Vs. Mobin and Ors.
FIR No. 332/2014PS Chandni Mahal 23/27 of giving threats to his family and causing hurt. However, the case has not been proved sufficiently qua accused Muntazim.
2. Whether the accused persons, namely, Mobin, Azim and Muntazim in furtherance of their common intention caused bodily pain to the complainant and his wife, thereby committing the offence u/s 323 IPC.
40. In order to establish the offence section 323 IPC, it is essential that bodily pain, disease or infirmity is voluntarily caused to any person by the accused. In the presence factual matrix, PW-1 has categorically stated in his examination-in-chief that accused persons, namely, Mobin and Azim started hurling abuses and gave him beatings. He further states that they also pushed his wife and gave her beatings.
41. PW-2 has corroborated the statement of PW-1 and has testified that both Mobin and Azim started beating her husband and when she tried to intervene, they started beating her as well. She explicitly states that her husband got bleeding on his face and his eyes were swollen.
42. PW-3 Ct. Sumit has testified of getting the complainant and his wife medically examined. The MLCs have been annexed on record. According to which, the MLC of complainant Muqeem Ahmed Ex.AD1 mentions of an abraision over the left side of his upper eye. The MLC is in lines of the statement of PW-2 who has mentioned of her husband getting an injury on his face. The MLC of PW-2 Ex.AD2 is also on record. According to which, she has State Vs. Mobin and Ors.
FIR No. 332/2014PS Chandni Mahal 24/27 only complaint of headache and there is no external injury on her body.
43. At this juncture, it is relevant to cite the case of judgment titled as Laxman Singh Vs. State of Bihar, AIR, 2021, Supreme Court 3552 wherein it has been held by the Supreme Court that " it may be that there might not be any serious injuries and/or visible injuries, the hospital might not have issued the injury report. However, production of an injury report for the offence under Section 323 IPC is not a sine qua non for establishing the case for the offence under Section 323 IPC. Section 323 IPC is a punishable section for voluntarily causing hurt".
44. The prosecution witnesses have remained unrebutted.
45. Hence, in view of the abovesaid discussion, the prosecution has been able to establish beyond reasonable doubt that accused Mobin and Azim voluntarily caused simple hurt to the complainant and his wife. However, there is no sufficient evidence on record to establish the involvement of accused Muntazim in the present offence.
3. Whether the accused persons, namely, Mobin, Azim and Muntazim in furtherance of their common intention threatened the complainant and his family with injury with the intention to cause alarm to the complainant, thereby committing the offence u/s 506 IPC.
46. The burden of proof to establish beyond reasonable doubt State Vs. Mobin and Ors.
FIR No. 332/2014PS Chandni Mahal 25/27 shall be on the prosecution. To establish the offence of criminal intimidation against the accused persons, it is essential to prove that they threatened the complainant and his family with injury to cause alarm.
47. The prosecution has examined complainant as PW-1 who has categorically stated that both Mobin and Azim entered his house on 17.12.2014 at about 7.30 pm. He could apprehend from their facial expressions that they were there with the intention of fighting. They threatened him by saying that if he did not go to Amroha at his ancestral house right now, he will not be able to go ever. Thereafter, they started hurling abuses and engaged in a scuffle with him. His version is corroborated by the statement of his wife PW-2 who has categorically stated in her examination-in-chief that both Mobin and Azim entered her room and stated to her house "kya baat hai, hamare baap Muqeem Ahmad ko bula rahe hai, jo milna hai abhi mil jayaga, baad me nahi milega". When her husband objected, they started beating him. Upon her intervention to save PW-1, they even started beating her. She has categorically mentioned that both Mobin and Azim threatened to kill her husband.
48. PW-3 Ct. Sumit who reached at the place of incident upon receiving the PCR call, also stated that he met the complainant who mentioned that both Mobin and Azim had quarreled with him and fled away from the spot. The MLCs are also on record and corroborate the version of the complainant. In fact, DW-2 has also State Vs. Mobin and Ors.
FIR No. 332/2014PS Chandni Mahal 26/27 admitted in his cross-examination that he got to know that a quarrel took place between the complainant and accused persons. Therefore, in view of the aforesaid discussion, the prosecution has been able to establish beyond reasonable doubt that the acts of the accused persons, namely, Mobin and Azim were sufficient to threaten the complainant and his family with injury and to cause alarm. However, the involvement of accused Muntazim has not been established beyond reasonable doubt. No specific averments have been made against him by any of the prosecution witnesses.
49. Hence, in view of discussions as mentioned above, accused Mobin and Azim are liable to be convicted u/s 451/506(II)/323 read with 34 IPC and accused Muntazim is entitled to be acquitted of all the charges against him.
Announced in the open court Digitally signed by SAYESHA SAYESHA CHADHA today.
Date:
CHADHA 2024.11.29 17:33:30 +0530 (SAYESHA CHADHA) JUDICIAL MAGISTRATE FIRST CLASS-08, Central District, Tis Hazari Courts/Delhi [This judgment contains 27 pages and each page bears the initials of undersigned and the last page bears the complete sign of undersigned.] State Vs. Mobin and Ors.FIR No. 332/2014
PS Chandni Mahal 27/27