Delhi District Court
State vs Naseem Khan Ors on 18 January, 2025
IN THE COURT OF DR. RAKESH KUMAR
ADDITIONAL SESSIONS JUDGE (FTC-02), SOUTH-EAST
SAKET COURT COMPLEX, NEW DELHI
CNR No: DLSE010001442013
Session Case No.1379/2016
FIR No.351/2011
Police Station: Sarita Vihar.
State
Versus
(i) Naseem Khan
Son of Ladli Khan,
Resident of Village-Atiytapur,
PS-Kadim Ganj, District, Farukhabad (UP)
(ii) Zuber Alam
Son of Asfaq Alam
Resident of House Number No.D-201,
Janta Flat, Pocket-11, Jasola Vihar, New Delhi.
(iii) Asif @ Nadim
Son of Mohd. Habib Qureshi
Resident of House No.F-116, GF,
Dr. Musaraf Ka Makan, Abul Fazal Enclave, PS Jamia Nagar, New
Delhi.
FIR No.351/11 PS Sarita Vihar State v. Naseem Khan & Ors. Page 1 of 42
Date of Institution : 14.05.2013
Judgment reserved on : 20.12.2024
Date of Decision : 18.01.2025
JUDGMENT
1. A police report was put up by the State through officer- in-charge of the police station Sarita Vihar before the concerned Metropolitan Magistrate with the view to take cognizance of offence under sections 325/34 of the Indian Penal Code, 1860 (in short 'IPC') against the accused persons, namely, Naseem Khan, Zuber Alam, Asif @ Nadim for having committed the said offence and to proceed with committal of the case.
2. As per the police report on 12.12.2011, this case FIR was registered against the accused persons, namely, Naseem Khan, Zuber Alam, Asif @ Nadim in police station Sarita Vihar for the offence punishable under sections 325/34 IPC.
3. As per the police report, that on 04.11.2011 HC Suresh Chand received a DD no.54A from constable Umesh Kumar regarding, 'one boy after committing murder was fleeing and he has been apprehended' and he reached at the spot i.e. Janta Flat, House No.C-598, Jasola and on inquiry, he came to know that no offence of murder had been committed there; rather there was a fight regarding parking of motorcycle and both the injured persons had been taken to AIIMS Trauma Center by PCR Van, thereafter, HC Suresh Chand on receiving of other DDs number 8A & 9B reached AIIMS Trauma Center and found the injured Usman vide MLC No.283660/11 and FIR No.351/11 PS Sarita Vihar State v. Naseem Khan & Ors. Page 2 of 42 the injured Zuber vide MLC No.283670/11 admitted for treatment and on both the MLCs, the doctor opined the patient to be 'fit for statement' and simple injury.
4. It is further reported in the police report that Head Constable Suresh Chand made inquiry from the injured Zuber and he told that there was a quarrel between Usman and Nadim regarding parking of motorcycle and he was present there and tried to intervene between them due to which he received injury on his eye and he did not want to take any police action as he received the injury as he was intervening and without fault of anyone. It is further reported in the police report that Head Constable Suresh Chand recorded the statement of another injured Usman.
5. As per the police report, it is, inter-alia, stated by injured Usman that at about 10.40 p.m., he had gone to ATM Punjab National Bank by his motorcycle from where he had withdrawn the amount of Rs.12,000/- and came back to his house by motorcycle and found two boys, namely, Naseem and Nadim standing there; that as he wanted to park his motorcycle, therefore, he asked them to remove themselves from there; that those two boys started beating him with slaps and belt and snatched one chain (golden) one mobile and Rs.12,000/- from him; that one boy, namely, Zuber who was trying to intervene between him and that boy had also sustained injury by the belt and Naseem and Nadim fled from there and he can identify those boys if they are produced before them. It is, therefore, prayed that appropriate action as per law be taken.
FIR No.351/11 PS Sarita Vihar State v. Naseem Khan & Ors. Page 3 of 426. It is further reported in the police report that inquiry from the eye-witnesses present there was made and it came out that there was a quarrel, however, no such incident of snatching money, mobile or chain had happened; that the DD No.10B dated 05.11.2011 was kept pending investigation.
7. It is further reported in the police report that on 07.11.2011, the injured Usman was referred from Trauma Center to Dr. Rajinder Prasad, Hospital Eye, AIIMS Hospital and the injured got his supplementary statement recorded and stated that he was caught hold by the boy, namely, Zuber and the injured had handed over the documents relating to his treatment which are attached with the MLC and deposited it to Trauma Center on 24.11.2011 for obtaining MLC result and on 12.12.11 on the MLC No.283660/2011 of injured Usman, the doctor opined the injury as 'grievous'. It is further stated by the injured that appropriate action as per law should be taken against the offenders.
8. It is further reported in the police report that from the statement of the complainant, statement of the witnesses, inspection of the spot of the incident and from the opinion on the result of MLC, the offence under sections 325/34 IPC have been made out and after preparing Tehrir, FIR under those sections was got registered and further investigation was taken up by Head Constable Suresh Chand and during the course of investigation, he prepared site-plan without scale, however, both the parties did not cooperate in the investigation of the case.
FIR No.351/11 PS Sarita Vihar State v. Naseem Khan & Ors. Page 4 of 429. It is further reported in the police report that on 02.04.2012, the accused Naseem Khan was arrested in the present case and his disclosure statement was recorded; on 23.04.2012, the accused Zuber Alam was also arrested and his disclosure statement was recorded; that on 01.11.2012, the accused Asif was also arrested after serving him the notice under section 160 Cr.P.C. and his disclosure statement was also recorded and it was disclosed that the accused had used a black colour belt in the quarrel which was kept in a white cloth and pullanda was prepared and seized vide seizure memo and taken into police possession and deposited in the malkhana and the statement of the witnesses under section 161 Cr.P.C. were recorded and all three accused persons were released on police bail.
10. It is further reported in the police report that as per the statement of the witnesses, a quarrel regarding parking of motorcycle taken place during which several persons from the pocket had gathered there who had separated the complainant Usman and the accused persons, namely, Nadim and Naseem and no such incident of snatching of money, mobile or chain had happened and in this regard, sufficient investigation was conducted and in the present case on 12.12.2012, an application for recording the statement under section 164 Cr.P.C. of the complainant Usman was made before the concerned Court as the complainant was continuously changing his statement and was also not giving any opinion regarding the investigation; that statement of the FIR No.351/11 PS Sarita Vihar State v. Naseem Khan & Ors. Page 5 of 42 complainant under section 164 Cr.P.C. was got recorded by Metropolitan Magistrate and its copy was obtained.
11. It is, inter-alia, stated by the complainant in his statement under section 164 Cr.P.C. that on 04.11.2011 at about 10.30/11.00 a.m., he and his brother Mohd. Subhan had withdrawn an amount of Rs.6000/- and another Rs.6000/- were kept in his pocket and when they came back to their house, he had asked his brother to bring milk and in the meantime, he would park his motorcycle; that when he asked the three boys to go away from that place, they started quarreling and Zuber had caught hold him and Naseem had given a blow with a knife like object on his left eye and Nadim hit him by belt and all the three persons snatched his Rs.12,000/-, one gold-chain and one Chinese mobile phone and fled from there; he also knew Zuber and Naseem and name of the 3 rd boy was revealed on that day; that therefore, his brother reached there and made a call on 100 number and he was brought to the hospital and later, police had recorded statement; that he was not conscious due to injury on his left eye; that the investigating officer had obtained his signature on a blank paper and threatened me; that appropriate action as per law be taken against them.
12. It is further reported in the police report that further investigation of the present case was under taken by Sub-Inspector Moolchand and during the course of investigation, the investigating officer collected bank statement of the complainant from the concerned branch from which it was found that on the date of FIR No.351/11 PS Sarita Vihar State v. Naseem Khan & Ors. Page 6 of 42 incident, an amount of Rs.6000/- was withdrawn by the complainant; that the investigating officer has also made inquiry from the complainant regarding bill of mobile phone, however, the complainant did not produce any document neither informed his mobile number.
13. It is further reported in the police report that during the course of investigation, on the basis of statement of the eye- witnesses reported by the previous investigating officer, the present investigating officer met the eye-witnesses and made inquiry from them, however, no such incident of snatching was revealed and he recorded supplementary statement of the witness.
14. It is further reported in the police report that from the investigation conducted so far, sufficient evidence has been collected against all the three accused persons for their having committed an offence under section 325/34 IPC which are attached herewith.
15. It is further reported in the police report that the aforesaid acts on the part of the accused persons, namely, Naseem Khan, Zuber Alam and Asif @ Nadim revealed commission of offence punishable under sections 325/34 of Indian Penal Code, 1860. It is, therefore, prayed that cognizance of the offence committed by accused persons, namely, Naseem Khan, Zuber Alam and Asif @ Nadim may be taken and they should be tried as per the provisions of law.
FIR No.351/11 PS Sarita Vihar State v. Naseem Khan & Ors. Page 7 of 4216. After completion of the investigation, the investigating officer had filed the police report before the concerned Metropolitan Magistrate.
17. On the date of filing of police report, complaint case and miscellaneous applications in the form of protest petition was also put up before the Metropolitan Magistrate.
18. Vide order dated 02.10.2013, the learned Metropolitan Magistrate observed that the matter calls for a detailed further investigation and directed the officer-in-charge of the police station for further investigation and file report.
19. On 19.05.2014, a supplementary police report was put up before the Metropolitan Magistrate thereby adding sections 394/397 IPC.
20. As per the supplementary police report, in view of the order of the Court for further investigation, the case was assigned to Sub-Inspector Nagender Nagar for further investigation.
21. It is reported in the supplementary police report during the course of investigation, the investigating officer inquired from the complainant and recorded his supplementary statement and statement of other witnesses were also recorded who have supported FIR No.351/11 PS Sarita Vihar State v. Naseem Khan & Ors. Page 8 of 42 the statement of the complainant and after discussion, sections 394/397 IPC were added in the present case.
22. It is reported in the supplementary police report during the course of investigation, the accused persons were searched for but they kept on evading their arrest and made applications for grant of anticipatory bail and during the hearing of such applications, the accused persons compromised the matter with the complainant for a sum of Rs.1,70,000/- and the accused persons were granted anticipatory bail.
23. It is reported in the supplementary police report during the course of investigation, the accused persons were rearrested and the documents qua their arrest were prepared and they were released on bail. It is further reported in the supplementary police report during the course of investigation, sufficient evidence has been collected against the accused persons.
24. It is further reported in the supplementary police report that the aforesaid acts on the part of the accused persons, namely, Naseem Khan, Zuber Alam and Asif @ Nadim revealed commission of offences punishable under sections 325/394/397/34 of Indian Penal Code, 1860. It is, therefore, prayed that cognizance of the offences committed by accused persons, namely, Naseem Khan, Zuber Alam and Asif @ Nadim may be taken and they should be tried as per the provisions of law.
FIR No.351/11 PS Sarita Vihar State v. Naseem Khan & Ors. Page 9 of 4225. After completion of the investigation, the investigating officer had filed the supplementary police report before the concerned Metropolitan Magistrate.
26. On the police report and the supplementary police report, on 19.05.2014, the learned Metropolitan Magistrate had taken the cognizance of the offences.
27. On the date of taking cognizance, the accused Naseem Khan was also present and copies of police reports and other documents in compliance of section 207 Cr.P.C. were supplied to him, however, other accused persons who were on bail, were not present before the Metropolitan Magistrate.
28. The accused persons, namely Zuber and Nadim appeared in the Court on 19.07.2014 and copies of police reports and other documents in compliance of section 207 Cr.P.C. were supplied to them.
29. On 14.01.2015, the learned Metropolitan Magistrate found the offence to be exclusively triable by the Court of Session, therefore, committed the case to the Court of Session.
30. On 04.04.2018, upon considering the police report and the documents sent with it under Section 173 Cr.P.C. and after hearing the Additional Public Prosecutor and counsel for the accused FIR No.351/11 PS Sarita Vihar State v. Naseem Khan & Ors. Page 10 of 42 persons, the charge was framed against the accused persons, namely, Naseem Khan, Zuber Alam and Asif @ Nadim for their having committed offences punishable under sections 394/325/34 of Indian Penal Code and against the accused Naseem Khan for his having committed offence punishable under section 397 of Indian Penal Code.
31. The charge was read over and explained to the accused persons and they were asked if they pleaded guilty of the offences charged or claimed to be tried. The accused persons did not plead guilty and claimed trial.
32. In support of its case, the prosecution got examined PW1 Dr. Mahesh, Resident Doctor, PW2 Head Constable Sanjay, PW3 Usman, PW4 Ramesh Chander, PW5 Shaan Alam, PW6 Subhan Ahmad, PW7 Dolly Singh, PW8 Constable Mukesh Dalal, PW9 Inspector Moolchand, PW10 Retired Sub-Inspector Suresh Chander, PW11 Inspector Nagender Nagar. During the examination of the prosecution witnesses, the documents Ex.PW1/A, Ex.PW2/A, Ex.PW2/B, Ex.PW2/C, Ex.PA, Ex.PW3/A, Ex.PW8/A, Ex.PW8/B, Ex.PW8/C, Ex.PW9/A, Ex.PW10/A, Ex.PW10/B, Ex.PW10/C, Ex.PW10/D, Ex.PW10/E, Ex.PW10/F, Ex.PW10/G, Ex.PW10/H, Ex.PW10/I, Ex.PW10/J, Ex.PW10/K, Ex.PW10/L, Ex.PW10/M, Ex.PW10/N, Ex.PW10/O, Ex.PW11/A, Ex.PW11/B, Ex.PW11/C, Ex.PW11/D and pullanda Ex.P1 was also tendered in evidence.
FIR No.351/11 PS Sarita Vihar State v. Naseem Khan & Ors. Page 11 of 4233. On 22.04.2024, prosecution evidence was closed and matter was posted for examination of the accused persons under section 313 Cr.P.C. and for their statement.
34. On 27.11.2024, this Court examined the accused persons under section 313 Cr.P.C. and their separate statements were recorded. During their examination under section 313 of Cr.P.C., the accused persons denied the correctness of incriminating circumstances appearing in the evidence against them. During examination under section 313 of Cr.P.C., the accused Naseem Khan has taken the defence that he had gone to meet Zuber on 04.11.2011 and at around 09.00 p.m., when he was parking his motorcycle in front of house of Usman, Usman objected and called his brother and father, thereafter, a scuffle took place between him and Usman. It is further stated that when the complainant Usman and Zuber (who came later) tried to pacify the matter, both Usman and Zuber had fallen on the ground where Bajri/building material was lying and they both suffered injuries on their faces. It is further stated that later on, the complainant concocted a false story of robbery etc., to extort money from him and he along with other accused persons settled the matter for Rs.1.70 lakhs and paid the same to the complainant, however, subsequently, the complainant had started asking for more money and refused to cooperate in quashing proceedings in the present case filed before Hon'ble High Court of Delhi.
35. During examination under section 313 of Cr.P.C., the accused Zuber has taken the defence that he and complainant Usman FIR No.351/11 PS Sarita Vihar State v. Naseem Khan & Ors. Page 12 of 42 were neighbours and Naseem had come to meet him on 04.11.2011 and around 09.00 p.m. when Naseem was parking his motorcycle in front of house of Usman, Usman objected and called his brother and father and scuffle took place between Usman and Naseem and he reached later on and when he tried to pacify the matter, Usman and myself had fallen on the ground where Bajri/building material was lying and they both suffered injuries on their faces. It is further stated that later on, the complainant concocted a false story of robbery etc., to extort money from him and the other accused persons. It is further stated that he along with the other accused persons had settled the matter for Rs.1.70 lakhs and had paid the same to the complainant, however, subsequently, the complainant had started asking for more money and refused to cooperate in quashing proceedings of the present case filed before Hon'ble High Court of Delhi.
36. During examination under section 313 of Cr.P.C., the accused Asif @ Nadim has taken the defence that he was on evening walk there when he had seen that Naseem, who has come to meet Zuber on 04.11.2011 and around 09.00 p.m. when Naseem was parking his motorcycle in front of house of Usman, Usman objected and had called his brother and father and scuffle took place between Usman and Naseem. It is further stated that when complainant Usman and Zuber, who came later on, tried to pacify the matter, both Usman and Zuber had fallen on the ground where Bajri/building material was lying and they both suffered injuries on their faces. It is further stated that later on, the complainant had concocted false story FIR No.351/11 PS Sarita Vihar State v. Naseem Khan & Ors. Page 13 of 42 of robbery etc., to extort money from him, thereafter, he along with other accused persons had settled the matter for Rs.1.70 lakhs and had paid the same to the complainant, however, subsequently, the complainant started asking for more money and refused to cooperate in quashing proceedings in the present case filed before Hon'ble High Court of Delhi.
37. The accused persons did not expressed their desire to lead evidence in their defence.
38. I have heard Mr. Jagdamba Pandey, Additional Public Prosecutor for the State and Mr. Arun Srivastava for the accused persons and have gone through the record of the case carefully.
39. Having drawn my attention on the testimonies of PW1 Dr. Mahesh, Resident Doctor, PW2 Head Constable Sanjay, PW3 Usman, PW4 Ramesh Chander, PW5 Shaan Alam, PW6 Subhan Ahmad, PW7 Dolly Singh, PW8 Constable Mukesh Dalal, PW9 Inspector Moolchand, PW10 Retired Sub-Inspector Suresh Chander, PW11 Inspector Nagender Nagar and the documents Ex.PW1/A, Ex.PW2/A, Ex.PW2/B, Ex.PW2/C, Ex.PA, Ex.PW3/A, Ex.PW8/A, Ex.PW8/B, Ex.PW8/C, Ex.PW9/A, Ex.PW10/A, Ex.PW10/B, Ex.PW10/C, Ex.PW10/D, Ex.PW10/E, Ex.PW10/F, Ex.PW10/G, Ex.PW10/H, Ex.PW10/I, Ex.PW10/J, Ex.PW10/K, Ex.PW10/L, Ex.PW10/M, Ex.PW10/N, Ex.PW10/O, Ex.PW11/A, Ex.PW11/B, Ex.PW11/C, Ex.PW11/D and pullanda Ex.P1, learned Additional Public Prosecutor for the State has submitted that from the evidence FIR No.351/11 PS Sarita Vihar State v. Naseem Khan & Ors. Page 14 of 42 led by the prosecution, the prosecution has been successful in proving this case against the accused persons to convict for the offences charged with. It is further submitted that the FIR was registered for the offence punishable under section 325 of Indian Penal Code, however, cash, mobile phone and gold-chain of the complainant was also robbed in the present case. It is further submitted that after the police report was filed, the complainant filed a protest petition which was allowed and the investigating officer re- investigated the matter. It is further submitted that ATM withdrawal slip filed by the prosecution proves that the amount was withdrawn by the complainant before the incident. It is further submitted that witnesses saw the complainant in the injured condition. It is further submitted that from the complainant's evidence, the case of the prosecution is proved.
40. Per contra, learned counsel for the accused has drawn my attention on the testimonies of PW1 Dr. Mahesh, Resident Doctor, PW2 Head Constable Sanjay, PW3 Usman, PW4 Ramesh Chander, PW5 Shaan Alam, PW6 Subhan Ahmad, PW7 Dolly Singh, PW8 Constable Mukesh Dalal, PW9 Inspector Moolchand, PW10 Retired Sub-Inspector Suresh Chander, PW11 Inspector Nagender Nagar and the documents Ex.PW1/A, Ex.PW2/A, Ex.PW2/B, Ex.PW2/C, Ex.PA, Ex.PW3/A, Ex.PW8/A, Ex.PW8/B, Ex.PW8/C, Ex.PW9/A, Ex.PW10/A, Ex.PW10/B, Ex.PW10/C, Ex.PW10/D, Ex.PW10/E, Ex.PW10/F, Ex.PW10/G, Ex.PW10/H, Ex.PW10/I, Ex.PW10/J, Ex.PW10/K, Ex.PW10/L, Ex.PW10/M, Ex.PW10/N, Ex.PW10/O, Ex.PW11/A, Ex.PW11/B, Ex.PW11/C, FIR No.351/11 PS Sarita Vihar State v. Naseem Khan & Ors. Page 15 of 42 Ex.PW11/D and pullanda Ex.P1 and submitted that the incident happened on 04.11.2011, however, the FIR was registered on 12.12.2011 and there is no explanation at all for delay for registration of FIR. It is further submitted that as per the complainant, an amount of Rs.12,000/- was withdrawn from the ATM whereas the ATM withdrawal slip shows, an amount of Rs.6000/- was withdrawn. It is further submitted that MLC of the complainant Usman reveals that the weapon used in the present case was blunt whereas the complainant deposed that he was injured by the sharp edged weapon that is patti. Learned counsel for the accused persons has drawn my attention towards the MLC of Zuber to argue that Zuber had just intervened in the scuffle between the complainant and the accused so, he had also got injured when he along with the complainant had fallen on the building material. It is further submitted that as per the complainant's case the incident happened at 10.30 p.m., whereas, the ATM withdrawal slip shows the amount was withdrawn at 10.41 p.m. Learned counsel for the accused persons has also drawn my attention towards order dated 06.02.2014 to contend that the accused persons have also paid money to the complainant for treatment and total amount of Rs.1,70,000/- was paid to him. It is further submitted that infact, the quarrel between the complainant and the accused was over the parking issue and the accused Zuber also lives in the same locality and the complainant had also admitted knowing Zuber. It is further submitted that the complainant could not get his evidence corroborated from medical evidence i.e. MLC of the complainant. It is further submitted that infact there was no recovery at all.
FIR No.351/11 PS Sarita Vihar State v. Naseem Khan & Ors. Page 16 of 4241. I have given my thoughtful consideration to the submissions made on behalf of the parties.
42. All the accused persons have been charged for the offences punishable under sections 394/325/34 I.P.C. The accused Naseem Khan has also been separately charged for the offence under section 397 IPC. Sections 325,394, 397 and 34 IPC read as follows:
325. Punishment for voluntarily causing grievous hurt.-Whoever, except in the case provided for by section 335, voluntarily causes grievous hurt, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
394. Voluntarily causing hurt in committing robbery.-If any person, in committing or in attempting to commit robbery, voluntarily causes hurt, such person, and any other person jointly concerned in committing or attempting to commit such robbery, shall be punished with imprisonment for life, or with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine.
397. Robbery, or dacoity, with attempt to cause death or grievous hurt.- If, at the time of committing robbery or dacoity, the offender uses any deadly weapon, or causes grievous hurt to any person, or attempts to cause death or grievous hurt to any person, the imprisonment with which such offender shall be punished shall not be less than seven years.
34. Acts done by several persons in furtherance of common intention.--When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone.
43. The facts of the case have already been noticed earlier, here, I would like to only focus on the evidence that has been adduced by the prosecution.
FIR No.351/11 PS Sarita Vihar State v. Naseem Khan & Ors. Page 17 of 4244. To bring home the guilt of the accused persons, the prosecution had examined eleven (11) witnesses.
45. PW1 Dr. Mahesh has deposed that on 05.11.2011 he was working as JR Surgery in JPNATC, AIIMS New Delhi and on that day, a patient, namely, Zuber son of Ashfaq Alam, age 27 year male was brought to the hospital at about 01.26 a.m. with the alleged history of assault on 04.11.2011 at about 09.30 p.m. and on examination, he found 'vitals to be normal and one superficial laceration over left eye' and the nature of injury on the said patient was found to be simple blunt vide MLC (Ex.PW1/A) prepared by him.
46. PW2 Head Constable Sanjay has deposed that on 12.12.2011, he was working at police station Sarita Vihar as duty officer from 04:00 p.m. to 12:00 midnight and at around 10:05 p.m., Head Constable Suresh produced one rukka to him for registration of the FIR and on the basis of said rukka, he had registered the FIR No.351/2011, under section 325/34 IPC (Ex.PW2/A) through Computer Operator, made endorsement (Ex.PW2/B) on rukka and the certificate u/s 65-B of Indian Evidence Act (Ex.PW2/C) was issued and after registration of FIR, he had handed over the original rukka and copy of FIR to Head Constable Suresh.
47. PW3 Usman has deposed that on 04.11.2011, he was residing in house No.C-598, Pocket-11, Janta Flat and on that day, at about 10:30-10:45 p.m., he along with his younger brother Mohd.
FIR No.351/11 PS Sarita Vihar State v. Naseem Khan & Ors. Page 18 of 42Subhan were returning from ATM situated at Jasola after withdrawing Rs. 6,000/- from there and they both were on motorcycle when they reached on the main gate of their society, he had asked his younger brother to bring milk and he would park his motorcycle. It is further deposed by PW3 Usman that his brother had gone to fetch milk and he had started talking to his wife on mobile phone and thereafter, he had gone to park his motorcycle after 5-10 minutes. It is further deposed by PW3 Usman that the place where he used to park his motorcycle was situated in the society itself and two persons were already standing there who were not known to him and he had asked them by saying 'hato', thereafter, he had told those persons that he had to park his motorcycle and at that, the said two persons started beating him in the meanwhile, their third associate, namely, Zuber had also reached there, who was previously known to him as Zuber as he was residing in the same colony but Zuber did not know him and Zuber caught hold of him and the said three persons were calling the other two persons by the names of Nadim and Naseem. It is further deposed by PW3 Usman that thereafter, Nadim and Naseem had snatched his mobile phone and his gold- chain which he was wearing on his neck and had also robbed Rs.12,000/- from him which were lying in his pocket and Rs.6,000/- were withdrawn by him from the ATM and Rs.6,000/- were already lying with him.
48. It is further deposed by PW3 Usman that Nadim exhorted Naseem by saying 'maar isko' and on that Naseem had taken out one patti type sharp object and assaulted with it on his FIR No.351/11 PS Sarita Vihar State v. Naseem Khan & Ors. Page 19 of 42 neck but he saved himself from the said attack with his hand and the blow of said patti had hit him on his left eye and he was beaten by the said three persons with fists and blows. PW3 Usman has correctly identified all the three accused persons, namely, Zuber, Nadim and Naseem in the Court.
49. It is further deposed by PW3 Usman that when he had started bleeding from his eye and all the three accused persons had run away from there taking his above cash and items and when he was hit and assaulted as above, he had raised an alarm, upon hearing the same, some public persons from the nearby flats had reached there. It is further deposed by PW3 Usman that his younger brother Mohd. Subhan had also reached there and made a call to police at 100 number twice or thrice, thereafter, police had reached there and he was taken to AIIMS Hospital. It is further deposed by PW3 Usman that one police official, namely, Suresh had obtained his signatures on some blank papers in the Hospital alluring him that needful would be done in his case and that he did not know anything about the law, despite his resistance. Having seen document lying in the Court file, PW3 Usman deposed that the same did not bear his signatures and somebody else had written his name on it. It is further deposed by PW3 Usman that he could say that these are not his signatures because he generally sign in English and may be when he was lying unconscious in the hospital and when the said police official had taken his signatures on blank papers and the said document might have been signed by him in his that state of health, however, the said statement Mark A was not given by him to the FIR No.351/11 PS Sarita Vihar State v. Naseem Khan & Ors. Page 20 of 42 police. It is further deposed by PW3 Usman that he was also beaten by belt by the accused Naseem. It is further deposed by PW3 Usman that during the course of investigation, he had handed over the ATM Slip (Ex.PA) regarding the withdrawal of Rs.6,000/- of Punjab National Bank to the police and the same was seized. It is further deposed by PW3 Usman that he was produced before Ld. MM who recorded his statement under section 164 Cr.P.C.
50. PW3 Usman has correctly identified his signatures at point A on the statement recorded u/s 164 Cr.P.C. (Ex.PW3/A) and has also correctly identified the black belt (Ex.P-1) with brown and silver border and deposed that the same was used for beating him.
51. PW4 Ramesh Chander has deposed that he knows the complainant Usman and accused persons present in the Court. It is further deposed by PW4 Ramesh Chander that the complainant resides in his neigbourhood and he does not remember the date of incident but it was in the month of November, 2011, at about 8-9 p.m., he was present at his house and after hearing of commotion, he had come out of his house and saw that a scuffle was going on between Usman and Naseem. It is further deposed by PW4 Ramesh Chander that several other persons were also present at the scene but he could not see them properly and he had tried to intervene. It is further deposed by PW4 Ramesh Chander that Usman had sustained injuries in the incident and he did not know anything else and police never inquired him regarding the present case.
FIR No.351/11 PS Sarita Vihar State v. Naseem Khan & Ors. Page 21 of 4252. During cross-examination by Addl. P.P. for the State, PW4 Ramesh Chander has admitted that the date of incident was 04.11.2011. PW4 Ramesh Chander has correctly identified the accused Naseem in the Court.
53. PW5 Shaan Alam has deposed that he did not remember the exact date but it was year 2011 and at around 10.00 p.m., when he came back in Pocket-11, C-Block, Jasola Vihar, he was told by some persons that a quarrel had taken place between Usman and the accused Naseem on the pretext of parking and nobody was present there as the incident had already taken place. PW5 Shaan Alam has correctly identified the accused Naseem in the Court.
54. During his cross-examination by Addl. P.P. for the State, he has admitted that the incident had occurred on 06.11.2011 and has further admitted that he was told that the quarrel had taken place between Usman and the accused Nadim and Naseem. It is further admitted that the Zuber had also sustained injuries during the incident when he tried to intervene between Usman and the accused persons and Usman had also sustained injuries.
55. PW6 Subhan Ahmad has deposed that he was residing at the given address since 2006 and he was the carpenter by profession and on 04.11.2011, he along with his brother Usman Ahmad had gone to withdraw money from PNB ATM at Jasola and he withdrew Rs.6000/- and had handed over the same to his brother FIR No.351/11 PS Sarita Vihar State v. Naseem Khan & Ors. Page 22 of 42 Usman and at about 10.45 p.m.-11.00 p.m., they had returned and he had gone to bring milk and his brother was present in the parking area at the ground floor of the house. It is further deposed by PW6 Subhan Ahmad that he had seen blood was oozing out from the eyes of his brother who had sustained injury when he returned, and on enquiry, his brother had told him that the accused Naseem had assaulted him with some sharp object and the accused Zuber had caught hold of his brother and robbed Rs.12,000/- and gold-chain from his brother. It is further deposed by PW6 Subhan Ahmad that there were three assailants and when he had reached there they had already fled from the spot, thereafter, he had called at number 100 and after sometime police had come and they had taken his brother to AIIMS Trauma Center, where his brother got medical treatment. It is further deposed by PW6 Subhan Ahmad that during treatment, doctor had told him that left eye of his brother had been damaged and the police had not investigated the matter properly and had recorded statement of his brother after lapse of time.
56. It is further deposed by PW6 Subhan Ahmad that the investigating officer had recorded his statement and has also deposed that he can identify the accused persons, if shown to him, however, the Identity of the accused persons, namely, Naseem and Zuber was not disputed by counsel for the accused persons as they were exempted through their counsel.
57. PW7 Dolly Singh has deposed that she was residing at the given address from the last 10-12 years and she did not FIR No.351/11 PS Sarita Vihar State v. Naseem Khan & Ors. Page 23 of 42 remember the exact date and month but in the year 2011, probably it was in winter season, when at about 10.30-11.00 p.m., she along with her husband was having tea in the balcony of their house, then they heard some noises of a quarrel and by the time they came down, she had seen Usman was crying, holding his bleeding eye and shouting "mar diya mar diya", thereafter, police had come there and had taken Usman to Safdarjung hospital. It is further deposed by PW7 Dolly Singh that once police person also met him and made queries.
58. PW8 Constable Mukesh Dalal has deposed that on 01.11.2012, he joined the investigation along with the investigating officer and had gone to the house of the accused Asif i.e. F-116, Ground floor, Abul Fazal Enclave, Jamia Nagar and had given notice to the family members under section 160 Cr.P.C., thereafter, at about 04.00 p.m., the accused Asif had come at the PP Jasolla, thereafter, the investigating officer had interrogated him and had arrested him vide arrest memo Ex.PW8/A. It is further deposed by PW8 Constable Mukesh Dalal that the investigating officer had also recorded his disclosure statement (Ex.PW8/B) and had also handed over weapon of offence i.e. black colour belt, thereafter, the investigating officer had prepared the pullanda of the belt and had sealed it with the seal of 'SC' and taken into possession vide seizure memo (Ex.PW8/C). PW8 Constable Mukesh Dalal has correctly identified the accused Asif in the Court and has also identified black belt with brown and silver border Ex.P-1 and stated that the same was handed over by the accused Asif.
FIR No.351/11 PS Sarita Vihar State v. Naseem Khan & Ors. Page 24 of 4259. PW9 Inspector Moolchand has deposed that on 01.01.2013, he was posted as Inspector at police station Sarita Vihar, when the case file of this case was marked to him by the order of SHO for further investigation. It is further deposed by PW9 Inspector Moolchand that he had contacted the complainant and had obtained photocopy of ATM slip from him and had seized the same vide memo (Ex.PW9/A) and he got the same verified from the bank. It is further deposed by PW9 Inspector Moolchand that he had also recorded statements of two witnesses, namely, Ramesh Chand Arya and Shan Alam @ Guddu and after conclusion of investigation, he had filed the charge-sheet in the Court.
60. PW10 Sub-Inspector (retired) Suresh Chander has deposed that on 04.11.2011, he was on emergency duty from 08.00 p.m. to 08.00 a.m. and on receiving of DD No.54, he along with one constable, whose name he did not remember, had reached the spot at C-Block Jasola Vihar, where he had come to know that two injured persons were taken to AIIMS Trauma Center by PCR van, thereafter, he had received two DD No.8 and 9B regarding both injured persons. It is further deposed by PW10 Sub-Inspector Suresh Chander that thereafter, he had reached AIIMS Trauma Center, where injured were found admitted vide MLC No.283660 and 283670 and he had collected both MLCs and the doctor had declared both of them 'fit for statement' and injuries were opined to be 'simple in nature'. It is further deposed by PW10 Sub-Inspector Suresh Chander that one of the injured had refused to give any statement, however, the other injured probably whose name was FIR No.351/11 PS Sarita Vihar State v. Naseem Khan & Ors. Page 25 of 42 Usman had given his statement, which was recorded by him, thereafter, this statement was kept pending by him vide DD No.10, in the meantime, he had recorded statement of around 8-10 persons regarding the quarrel and on 11.12.2011, Usman had sent his medical documents of Trauma Center to police station through someone, thereafter, he had obtained the result from Trauma Center on his MLC and on 12.12.2011, he had prepared rukka (Ex.PW10/A) and got the FIR registered in this case by producing the said rukka before the duty officer on the same day, thereafter, the accused persons were given notices under section 160 Cr.P.C. (Ex.PW10/B) to (Ex.PW10/C) to join the investigation. It is further deposed by PW10 Sub-Inspector Suresh Chander that later on, the accused persons were arrested in this case vide memo (Ex.PW8/A) in respect of the accused Asif @ Nadim and memos (Ex.PW10/D and Ex.PW10/E) in respect of the accused persons Naseem and Juber and their personal searches were conducted vide memos in respect of Naseem and Juber (Ex.PW10/F to Ex.PW10/G) and had also recorded their disclosure statements (Ex.PW8/B) in respect of the accused Asif and (Ex.PW10/H and Ex.PW10/I) in respect of the accused persons Juber and Naseem. It is further deposed by PW10 Retired Sub-Inspector Suresh Chander that one black colour leather belt was also seized from accused Asif vide memo Ex.PW8/C, thereafter, he had also recorded the statement of witnesses and had prepared site-plan Ex.PW10/J. PW10 Sub-Inspector Suresh Chander has correctly identified two of those accused persons in the Court, however, he could not identify them by their names due to lapse of time and faded memory. During his examination-in-chief, the Court FIR No.351/11 PS Sarita Vihar State v. Naseem Khan & Ors. Page 26 of 42 has observed that the accused Nadim was absent, however, his counsel has not disputed the identity of the accused Nadim. PW10 Sub-Inspector Suresh Chander has correctly identified the case property (Ex.P-1). On putting leading questions to PW10 Sub- Inspector Suresh Chander, he has admitted that the spot was at C-598 Jasolla and DD number was 54A which was received by him at 11.40 p.m. PW10 Sub-Inspector Suresh Chander has further admitted that he was accompanied by Balaji to the spot and all the accused persons were released on bail from the police station itself vide memos (Ex.PW10/K, Ex PW10/L and Ex PW10/M). It was also admitted by PW10 that he had also made an application (Ex.PW10/N) for recording statement of injured Usman under section 164 Cr.P.C. and had also obtained copy of same vide application (Ex.PW10/O).
61. PW11 Inspector Nagender Nagar has deposed that on 04.11.2013, pursuant to the order dated 09.10.2013 Ex.PW11/A, passed by the learned MM having jurisdiction of police station Sarita Vihar on the protest petition filed by the complainant, the present case was assigned to him for further investigation. It is further deposed by PW11 Inspector Nagender Nagar that during the course of further investigation, he had recorded the statement of the relevant witnesses in tune with the directions passed by the learned MM and on the basis of statements of the said witnesses, sections 394/397/34 IPC were invoked in the present case and in view thereof, when he sought to re-arrest the accused persons, namely, Zuber Alam, Naseem Khan and Asif @ Nadim, they approached to FIR No.351/11 PS Sarita Vihar State v. Naseem Khan & Ors. Page 27 of 42 the Hon'ble Court for anticipatory bail and vide order dated 06.02.2014, they were granted anticipatory bail in the case.
62. It is further deposed by PW11 Inspector Nagender Nagar that on 21.02.2014, he had formally re-arrested the accused Zuber Alam vide arrest memo (Ex.PW11/B) and on 22.02.2014, he had formally re-arrested the accused Naseem Khan vide arrest memo (Ex.PW11/C). It is further deposed by PW11 Inspector Nagender Nagar that on 11.03.2014, he had formally re-arrested the accused Asif Nadim vide arrest memo (Ex.PW11/D) and following their interrogations, he had recorded the disclosure statements of the accused persons. It is further deposed by PW11 Inspector Nagender Nagar that no recovery was effected pursuant thereof, thereafter, he had prepared the supplementary charge-sheet qua the said further investigation and submitted the same in the Court. PW11 Inspector Nagender Nagar has correctly identified all the accused persons in the Court.
63. On 24.03.2023, the accused persons, namely, Naseem Khan, Zuber Alam and Asif @ Nadim have jointly made statement under section 294 Cr.P.C. to the effect that they had consulted with their lawyer and they were not disputing the genuineness of the documents, namely, MLC No.283660/11 (Ex.Al) of the injured Usman, X-Ray report No. 481996 (Ex.A2) with OPD No.7880/11 of the injured and proceedings under section 164 Cr.P.C. Ex.A3 (colly) without admitting their contents; the above mentioned documents would be read in evidence as per section 294 Cr.P.C.
FIR No.351/11 PS Sarita Vihar State v. Naseem Khan & Ors. Page 28 of 4264. In the light of the charge framed against the accused persons and the arguments advanced before the Court, following are the points for determination:
1. Whether the accused persons, namely Naseem Khan, Zuber Alam and Asif @ Nadim have intentionally caused grievous hurt to the complainant.
2. Whether the accused persons, namely Naseem Khan, Zuber Alam and Asif @ Nadim have committed robbery on the complainant Usman and in doing so, they have voluntarily caused hurt to his person.
3. Whether the accused Naseem Khan, while committing robbery upon the complainant Usman, was armed with a deadly weapon and has actually used it while committing robbery upon Usman.
4. Whether the accused persons, while committing the afore-said offences, acted in concert.
DISCUSSION ON THE POINTS FOR DETERMINATION
65. The first offence, the accused persons have been charged with is under section 325 Indian Penal Code. The essential ingredients of the offence under section 325 are as follows:
(1) Accused voluntarily caused hurt;FIR No.351/11 PS Sarita Vihar State v. Naseem Khan & Ors. Page 29 of 42
(2) Hurt was grievous within the meaning of section 320 IPC.
66. Secondly, the accused persons have been charged for the offence under section 394 Indian Penal Code. The essential ingredients of the offence under section 394 are as follows:
(1) Accused committed or attempted to commit robbery;
(2) He and anyone else jointly concerned in committing or attempting to commit robbery caused hurt; (3) Hurt was caused voluntarily.
67. Thirdly, the accused Naseem Khan has been charged for the offence under section 397 of Indian Penal Code. An act would only fall within the mischief of section 397 IPC if at the time of committing a Robbery or Dacoity the offender-
(a) uses any deadly weapon; or
(b) causes grievous hurt to any person; or
(c) attempts to cause death or grievous hurt to any person.
68. On these points, to prove the commission of offence, testimonies of PW3 Usman, PW4 Ramesh Chandra, PW5 Shaan Alam, PW6 Subhan Ahmed and PW7 Dolly Singh are relevant.
69. The present case has been registered on the complaint of one Usman (PW3). As per the testimonies of PW3 Usman on 04.11.2011 at about 10.30-10.45 p.m., he along with his brother Mohd. Subhan, while returning from withdrawing money from ATM reached the main gate of their society, had asked his brother to bring FIR No.351/11 PS Sarita Vihar State v. Naseem Khan & Ors. Page 30 of 42 milk and he reached the place where he used to park his motorcycle in the society, where two persons were already standing there and he asked them to get out of there by saying 'hato' and told those persons that he had to park his motorcycle, on this, the said two persons had started beating him, and in the meantime, their third associate, namely, Zuber also reached there and caught hold of him. It is also in the evidence of PW3 Usman that the accused persons Nadim and Naseem snatched his mobile phone, gold-chain, he was wearing on his neck and also robbed Rs.12,000/-. It is also in the evidence of PW3 Usman that the accused Nadim exhorted by saying 'maar isko' and on his exhortation, the accused Naseem had taken out one patti type sharp object and assaulted the complainant on his neck but he saved himself from the attack by putting his hand and the blow of that patti had hit him on his left eye. It is also in the evidence of PW3 Usman that he was beaten by the three accused persons with fists and blows and when he started bleeding from his eye, all the three accused persons had run away from there taking away his above cash and items.
70. PW3 Usman has correctly identified all the three accused persons during his evidence.
71. It is also in the evidence of PW3 Usman that when he was hit and assaulted as above, he had raised an alarm and upon hearing his alarm, some public persons from nearby flats had reached there.
FIR No.351/11 PS Sarita Vihar State v. Naseem Khan & Ors. Page 31 of 4272. It is also in the evidence of PW3 Usman that his younger brother Mohd. Subhan had also reached there and made a call at 100 number and the police reached there and he was taken to AIIMS hospital.
73. It is important to note here that as per the police report, the statement of the complainant was recorded several times and as per the investigating officer, he was changing his stand again and again. First statement given by the complainant, was recorded in the hospital itself. In the first statement, the complainant has levelled allegations against the accused Naseem and Nadim, however, he had exonerated the accused Zuber. As per the first statement of the complainant, the accused Zuber was intervening in the quarrel between the complainant and two boys, namely, Naseem and Nadim and while intervening, Zuber had also sustained injury by the belt.
74. During his testimonies, PW3 Usman had stated that one police official, namely, Suresh has obtained his signature on some blank papers in the hospital and the said document might have been signed by him in his that state of health despite his resistance. During his cross-examination, the question was put to him that he had informed the doctor that a quarrel had taken place and informed the doctor of AIIMS hospital where he was taken after the incident that a quarrel had taken place to which he had answered that he was unconscious at that time. A perusal of MLC of the complainant (Ex.A1) clearly reveals that in the column for H/O 'Loss of consciousness', the doctor has reported as 'Negative'. Therefore, the FIR No.351/11 PS Sarita Vihar State v. Naseem Khan & Ors. Page 32 of 42 statement of the complainant to the effect that he was unconscious at the time doctor examined him is false and at that time, the doctor had declared him to be 'fit to give statement' and he had given his statement in conscious state of mind.
75. During his further cross-examination, a question was put to complainant to which he replied as follows:
"I do not know if accused Zuber had also received injuries in the above incident. I do not know if accused Zuber also admitted at the same time in the same Hospital."
76. As per the police report, when on receiving of two DDs namely 8A/9B, the investigating officer had reached at AIIMS Trauma Center, he found the complainant and the accused Zuber to be under treatment under different MLCs. This fact has been proved by PW10 Inspector Suresh Chand and as his testimonies two injured persons were taken to AIIMS Trauma Center by PCR Van and he had received two DDs regarding both the injured persons.
77. In view of the above, it has been proved that the accused Zuber has also sustained injury in the same incident.
78. The prosecution has also examined PW6 Subhan Ahmad, brother of the complainant in support of the story set-up by the prosecution. As per the testimonies of PW3 Usman (complainant) as well as PW6 Subhan Ahmad, before the incident had happened, the complainant had sent his brother PW6 Subhan FIR No.351/11 PS Sarita Vihar State v. Naseem Khan & Ors. Page 33 of 42 Ahmad to bring milk and when he returned he saw he had seen the blood was oozing out from the eyes of his brother who had sustained injury and on inquiry he was told by the complainant that the accused Nadim had assaulted him with some sharp object and the accused Zuber had caught hold him and robbed off Rs.12,000/- and gold-chain from him.
79. From the above-said testimonies of PW6 Subhan Ahmad, it is clear that he was not the eye-witness to the incident. From the testimonies of PW3 Usman (complainant) and PW6 Subhan Ahmad, it is quite clear that he had left his brother before the incident and returned to him after the incident and whatever he deposed in the Court was on the basis of whatever was told to him by PW3 Usman (the complainant). Therefore, his evidence is mere hearsay evidence. Another important fact which came out from the testimonies of PW6 that as per his testimonies, the complainant had told him that the accused Naseem had assaulted him with sharp object and the accused Zuber had caught hold him and robbed Rs.12,000/- and gold-chain from him and there were three assailants but he had not assigned any specific role to the third accused i.e. Nadim.
80. As per the supplementary police report, pursuant to the directions of the Court for further investigation, the investigating officer had examined certain witnesses who had supported the case of the complainant.
FIR No.351/11 PS Sarita Vihar State v. Naseem Khan & Ors. Page 34 of 4281. The prosecution has also examined such witnesses i.e. three neighbours, namely, PW4 Ramesh Chander, PW5 Shaan Alam and PW7 Dolly Singh of the complainant.
82. As per the testimonies of PW4 Ramesh Chander after hearing of commotion, he had come out from his house and saw that scuffle was going on between Usman and Naseem and several other persons were present at the scene; he tried to intervene and Usman had sustained injury in the incident. It is important to note here that during his examination-in-chief, those witnesses were cross- examined on behalf of the State and the witness was declared hostile. During his cross-examination done on behalf of the State, PW4 Ramesh Chander has inter-alia deposed as follows:
"Accused Naseem is present in the Court today. It is wrong to suggest that on the day of incident, I have also seen accused Zuber Alam and Aasif @ Nadim at the place of occurrence. It is wrong to suggest that I saw all the three accused giving beatings to complainant and accused Naseem was armed with patti type object. It is wrong to suggest that I have seen that accused persons named Nadim and Naseem forcibly snatched gold-chain of complainant and also robbed him of Rs.12,000/- from his pocket. I do not remember if brother of complainant namely Subhan also reached at the spot. It is wrong to suggest that I am deposing falsely to help all the accused."
83. In the light of cross-examination done on behalf of the State, PW4 Ramesh Chander has subsequently denied the suggestion put to him that on the date of incident, he had seen the accused persons Zuber and Naseem at the place of occurrence. PW4 Ramesh Chander has also denied the suggestion that he had seen giving FIR No.351/11 PS Sarita Vihar State v. Naseem Khan & Ors. Page 35 of 42 beating to the complainant and the accused Naseem was armed with patti type object. PW4 Ramesh Chander has also denied suggestion that the accused persons Nadim and Naseem had forcefully snatched the gold-chain and also robbed him Rs.12,000/- from his pocket.
84. From the testimonies of PW4 Ramesh Chander, it has been proved that after hearing the commotion, he had come out from his house and saw the scuffle between Usman and Naseem, however, he had not seen Zuber Alam and Naseem to be involved in the incident or were giving beatings to the complainant. PW4 Ramesh Chander had also not seen the patti type object in the hands of accused Naseem. PW4 was present at the time and place of incident during scuffle between Usman and Naseem, however, he had not seen the other accused persons, namely, Nadim and Naseem forcibly snatching gold-chain and robbed Rs.12,000/- from his pocket. Therefore, I am of the clear opinion that the testimonies of PW4 Ramesh Chander are of no avail to the prosecution to prove the fact that the accused proved the fact that all the three accused persons have given beatings to the complainant or that all the accused persons have robbed the complainant of his gold-chain and Rs.12,000/- from his pocket or that the accused Naseem was having patti type sharp object in his hand, rather, from his testimonies, a doubt has been cast upon the story set up by the prosecution whether the complainant was beaten up by all the three accused persons or robbed of gold-chain and cash, as his presence at the spot of incident at the time and place of incident has been proved.
FIR No.351/11 PS Sarita Vihar State v. Naseem Khan & Ors. Page 36 of 4285. The second witness examined by the prosecution in support of the case of the complainant and to prove the prosecution story is PW5 Shaan Alam, another neighbour of the complainant. As per the testimonies of PW5 Shaan Alam, on the date of incident at around 10.00 p.m., when he had come back to his block, he was told by some person that a quarrel had taken place between Usman and Naseem on the pretext of parking; nobody was present there as incident had already taken place. PW5 Shaan Alam was also declared hostile and with the permission of the Court and certain leading questions were put to him and he deposed as follows:
"It is correct that incident occurred on 06.11.2011. It is further correct that I was told that the quarrel took place between Usman and accused Nadim and Naseem. It is further correct that Zuber also sustained injuries during the incident when he tried to intervene between Usman and accused persons. Usman had also sustained injuries."
86. Another neighbour examined by the prosecution is PW7 Dolly Singh. As per her testimonies, on the day of incident, she along with her husband was having tea in the balcony of their house and she heard noise of a quarrel and they had come down, she had seen Usman was crying holding his eye and shouting 'mar diya-mar diya'. This witness was also declared hostile by the prosecution, and with the permission of the Court, was cross-examined on behalf of the State. During her cross-examination, PW7 Dolly Singh has, inter-alia, has deposed as follows:
"It is wrong to suggest that I have been won over by the accused persons that is why I am not stating true and FIR No.351/11 PS Sarita Vihar State v. Naseem Khan & Ors. Page 37 of 42 complete facts before the Court. It is wrong to suggest that I have been won over by the accused persons and that is why I am not identifying the accused persons."
87. In the light of the examination-in-chief and the cross- examination conducted on behalf of the State, it is quite clear that PW7 Dolly Singh has also denied the suggestion put to her that the accused Zuber along with to other accused persons had given beatings to Usman with belt. PW7 Dolly Singh has also denied the suggestion that the accused persons had robbed gold-chain and Rs.12,000/- from Usman and she has also denied the suggestion that the accused persons had given beatings to Usman in their presence. During her cross-examination, Learned Addl. P.P. for the State, after pointing out towards the accused persons, asked the witness PW7 Dolly Singh whether they were the same persons who gave beatings to Usman and robbed Rs.12,000/- to which she said that she has not seen the accused persons. From the above testimonies of PW7 Dolly Singh, I am of the considered opinion that her testimonies are also of no use for the prosecution to prove guilt of the accused persons for having committed the robbery and assault on the person of the complainant as she had also not seen the incident. However, from her testimonies, it is proved that she had gone to the place of incident after the incident.
88. During the cross-examination of PW5 Shaan Alam, he had admitted that he was not present when quarrel had taken place. From the above testimonies of PW5, it is quite clear that he was not present at the time and place of incident when the incident had FIR No.351/11 PS Sarita Vihar State v. Naseem Khan & Ors. Page 38 of 42 happened. On the other hand, it came out from his testimonies that he was told by someone that a quarrel had taken place between Usman and Nadim & Naseem on the pretext of parking, therefore, I may hold that the prosecution has failed to prove the fact that the accused persons had attacked the complainant or given beatings to him, rather, it has come out that there was some quarrel between the complainant and the accused Naseem on the pretext of parking. Here, the testimonies of PW3 Usman are also relevant. As per his testimonies, when he came back to the parking area, he found two persons standing there and he asked them to get out from the place by saying, 'hato' and the complainant told him that he wanted to park his motorcycle there, probably, that led to commotion/quarrel between the complainant and the accused persons Naseem & Nadim. In his cross-examination done on behalf of accused persons, a suggestion was given to him which was denied by him that quarrel had started due to parking reason.
89. Further, during the examination-in-chief of PW5 Shaan Alam, leading question was put to the witness by the prosecution itself which was admitted by him to be correct that Zuber had also sustained injuries during the incident when he tried to intervene between Usman and the accused persons. Therefore, it is quite clear that Zuber had tried to intervene during quarrel between the complainant Usman and the accused persons Nadim & Naseem and due to said intervention, he had also sustained injuries. Here, the first statement given by the complainant to the investigating officer also becomes relevant, wherein, he had not levelled any allegations FIR No.351/11 PS Sarita Vihar State v. Naseem Khan & Ors. Page 39 of 42 against the accused Zuber and merely stated that Zuber, has intervened in the scuffle between the complainant and two boys, has also sustained injuries. In view of the above testimonies and discussion, the involvement of the accused Zuber in the incident of giving beatings to the complainant also becomes doubtful.
90. There is another disturbing feature in the case set-up by the prosecution, namely, it is full of contradictions.
91. As per the testimonies of PW3 Usman (complainant), he was beaten by the accused persons with the patti type sharp object and he was hit on his left eye with the blow of said patti. During his examination-in-chief, he had identified the belt with which he was beaten by the accused Nadim, however, the said patti was never recovered during investigation.
92. A perusal of MLC (Ex.A1) of the complainant Usman reveals that the kind of weapon used to cause injury on the eye of the complainant was blunt. Therefore, his testimonies regarding use of patti to cause injury on his eye was not supported by the medical evidence and cannot be relied upon.
93. In his first statement given to the investigating officer, the complainant has stated that he had withdrawn Rs.12,000/- from the ATM. However, during his testimonies, the complainant has admitted that he had withdrawn amount of Rs.6000/- from the ATM.
FIR No.351/11 PS Sarita Vihar State v. Naseem Khan & Ors. Page 40 of 4294. From the testimonies of the complainant, he has tried to set-up a case that when he asked the accused persons to give space to park his motorcycle, all of a sudden, the accused persons had caught hold of him, robbed his articles and started assaulting him with patti type sharp object. However, if I see the evidence of the complainant and the testimonies of other witnesses as a whole, it seems that when the complainant had come to the place of incident by his motorcycle, he saw two accused persons standing there and he asked them to get out of that place by saying, 'hato' so that he could park his motorcycle. Therefore, it becomes clear that scuffle/quarrel between Usman and Naseem, Nadim had started over the parking issue. Further, from the testimonies of PW3 Usman, he has tried to build-up a case like he was beaten-up by the accused persons in a preplanned manner and also robbed of the articles.
95. As noted above, as per the first police report, the complainant has kept on changing his stand and his statement was recorded several times. The first statement was given by the complainant on the date of incident i.e. 04.11.2011, however, the FIR in the present case was registered on 12.11.2011. The delay in registration of FIR has not duly explained by the prosecution.
96. Furthermore, the complainant has also admitted in his cross-examination that he had received the sum of Rs.1,70,000/- from the accused persons for the treatment of his eye. A perusal of photocopy of order dated 06.02.2014 of granting bail to the accused persons also reveals that the accused persons had given FIR No.351/11 PS Sarita Vihar State v. Naseem Khan & Ors. Page 41 of 42 Rs.1,50,000/- to Usman pursuant to the settlement/MOU dated 28.01.2014 and they had undertaken to pay the balance amount of Rs.20,000/- to the complainant on 15.02.2014. It is also note-worthy here that this case was adjourned several times on the ground that a quashing petition before Hon'ble High Court of Delhi was pending disposal for the settlement between the parties. Admittedly, the complainant has not given any bill or received for purchasing gold- chain to the investigating officer and the fact that he owned the gold- chain is also not proved.
97. In the light of facts of this case, evidence produced on behalf of the prosecution and the submissions made on behalf of the parties, I am of the considered opinion that the prosecution has failed to prove the guilt of the accused persons, beyond reasonable doubt for the offence under sections 394/325/34 of Indian Penal Code against the accused persons, namely, Naseem Khan, Zuber Alam and Asif @ Nadim and under section 397 of Indian Penal Code against the accused Naseem Khan, therefore, giving benefit of doubt, the accused persons Naseem Khan, Zuber Alam and Asif @ Nadim are, hereby, acquitted of the charges framed against them.
Pronounced in the open Court (DR. RAKESH KUMAR)
th
on 18 of January, 2025. Additional Sessions Judge, (FTC)-02, South East, Saket Court Complex, New Delhi(ag) FIR No.351/11 PS Sarita Vihar State v. Naseem Khan & Ors. Page 42 of 42