Delhi District Court
State vs . (1) Aas Mohd S/O Islamuddin on 23 July, 2011
IN THE COURT OF MS. NISHA SAXENA: ADDL. SESSIONS
JUDGE05(NE): KARKARDOOMA COURTS: DELHI.
SC No.35/10
Unique ID No. 02402R0076392007
Date of institution:20.01.07
Date of transfer:02.03.2010
Date on which reserved for orders:22.7.2011
Date of delivery of order: 23.7.2011
State Vs. (1) Aas Mohd S/o Islamuddin
R/o H. no. 684, Sunder Nagri, Delhi.
(2) Abdul Rauf S/o Abdul Kadir
R/o F2/106, Sunder Nagri, Delhi.
(3) Hasmuddin S/o Immamuddin
R/o F2/1011, Sunder Nagri, Delhi.
FIR No. 389/06
PS Nand Nagri
U/s 448/323/308/411/34 IPC
JUDGMENT:
1. The prosecution case is founded on the complaint of one Nazmuddin, the complainant dated 23.05.06 wherein he has stated that he had been staying along with his family and running his FIR no. 389/06, PS Nand Nagri 1/27 clinic under the name of Sitara Medical Centre from H. no. F2/10 11, Sunder Nagri, Delhi and he had been living in this house for the last 19 months on rent. On 18.5.06 he had gone to Karkardooma court. At about 2.30 PM, his servant Rubina informed him on telephone that accused Aas Mohd (who is a relative of his landlady Khairunisha) along with his two associates had quarreled with her. He immediately rushed home and found that Rubina was not there. She had already been removed to GTB hospital by PCR vehicle. He found his household articles and the cash of Rs. 70,000/ having been stolen. On 21.5.06 at about 6.00 PM he along with his wife Husanara and daughter Sakiba was sitting at Sumit Communication F1/31, Sunder Nagri, Delhi with Sh. Jagdish Chand owner of Sumit Communication at his shop. All of a sudden accused Aas Mohd who was wielding a hockey stick, accused Hasmuddin who was carrying an iron pipe and accused Rauf who was holding a danda came to him. Accused Aas Mohd told his associates 'yehi wo sala Nazmuddin hai jo meri saali ko pareshaan kar raha hai aur aaj iska kaam tamam kar do'. Saying this accused Aas Mohd gave him a blow with the hockey on his head with an intention to kill him. When people came forward to rescue him Hasmuddin injured one FIR no. 389/06, PS Nand Nagri 2/27 boy Aslam s/o Noora with his iron pipe and Babloo s/o Sharafat who was also trying to save him was injured by accused Rauf with lathi. When he tried to flee from the spot to save himself, he was prevented by the accused persons. With a great difficulty he could save himself. He urged the police to take action against Aas Mohd, Hasmuddin and Rauf who had injured him, his servant Rubina and the people who came to rescue him and also stole his household articles. On the basis of this complaint a case u/s 323/341/380/448/308/34 IPC was registered against the accused persons. After preparation of site plan obtaining MLCs of the injured, arrest of accused persons, recovery of stolen articles and recovery of weapon of offence, chargesheet was filed.
2. On finding a prima facie case all accused persons were charged for the offences punishable u/s 448/323/308/34 IPC. While accused Hasmuddin was also charged for the offence punishable u/s 411 IPC. To the charge accused persons pleaded not guilty and claimed trial.
3. Prosecution has examined nine witnesses.
● Material prosecution witnesses are PW1 Nazmuddin Saifi the complainant, PW2 Husan Ara his wife, PW4 Rubina servant of FIR no. 389/06, PS Nand Nagri 3/27 PW1 who was present at the nursing home Sitara Medical Centre when the incident took place on 18.5.2006, PW5 Babloo and PW 7 Aslam who also received injuries in the subsequent incident on 21.5.06.
● PW6 Dr. R. K. B. Chaudhary has identified handwriting and signature of Dr. Hitesh Gupta who prepared MLC of Nazmuddin Saifi Ex. PW6/A. He also proved MLC of Aslam and Husanara prepared by Dr. Lawrence as Ex. PW6/B and Ex. PW6/C respectively and that of Bablu as Ex. PW6/D. PW8 Dr. Parmeshwar Ram examined patient Rubina on 18.5.06 and he has proved her MLC as Ex. PW8/A. ● Only two police witnesses have been examined i.e. PW3 Ct. Devender who joined ASI Rambir Singh (PW9) IO of the case who conducted investigation on 23.5.06 and 24.5.06. It has been testified by PW9 ASI Rambir Singh that on 23.5.06 complainant Nazmuddin had come to the police station and he recorded his statement which is Ex. PW1/A. He also produced photocopy of the MLCs. As per his statement and photocopy of MLCs offences u/s 323/341/380/448/308/34 IPC were disclosed. He issued rukka Ex. PW9/A for registration of FIR Ex. PA. He went to the spot with FIR no. 389/06, PS Nand Nagri 4/27 the complainant and prepared site plan Ex. PW9/B. Ct. Devender Singh handed over copy of FIR and original rukka to him at the spot. He recorded statement of prosecution witnesses. On 24.5.06 complainant Nazmuddin informed him that the accused persons were present near bus stand SDM Chambering, Tahirpur Road, Delhi. He associated complainant and reached the above stated place and arrested all the accused persons vide Ex. PW1/E to G after conducting their personal search vide memo Ex. PW1/B to D. He recorded disclosure statement of accused Hasmuddin and Aas Mohd which are Ex. PW3/D and B respectively. Accused Aas Mohd got recovered iron pipe, wooden log (danda) and hockey stick which are Ex. P4 and P6 which were seized vide memo Ex. PW3/A. On 26.05.06 accused Hasmuddin got recovered one wall clock make 'Kundan Quartz', telephone of Tata indicom, one small TV make BPL which are Ex. P1 to P3 from his residence which were seized vide memo Ex. PW3/C. On 12.6.06 he deposited the MLC of Rubina, Babloo, Husanara, Aslam, Nazmuddin and collected the result including the report of radiologist. Doctor opined the injuries as simple. On the basis of the material collected, he prepared charesheet and got it filed.
FIR no. 389/06, PS Nand Nagri 5/27
4. Statement of accused persons were recorded u/s 313 Cr PC in which they have pleaded false implication because of having distant relationship with coaccused Hasmuddin. While Hasmuddin has taken the plea that he has been falsely implicated because Khairunisha employer of the complainant Nazmuddin is his mother in law and he had strained relationship with his mother in law. The accused persons chose not to lead any defence evidence.
5. I have heard Addl. PP for the State and the defence counsel Mr. Shakir Hussain for accused Hasmuddin and Mr. Usman Chaudhary for accused Aas Mohd and Rauf and gone through the entire record including sworn testimony of the witnesses and documents proved on record.
6. To prove its case prosecution has to prove that the accused persons forcibly entered the premises from where the complainant Nazmuddin was running his clinic and gave beatings to his servant Rubina and caused simple injuries to her on 18.5.06 and thereafter on 21.05.06 they caused injuries to complainant Nazmuddin Saifi, Aslam and Babloo attempting to commit culpable homicide not amounting to murder and that accused Hashmuddin was found in possession of articles belonging to complainant. To prove its case FIR no. 389/06, PS Nand Nagri 6/27 prosecution mainly relies upon statement of complainant Nazmuddin Saifi who stated that on 18.05.06 he had gone to Karkardooma court wherein he had filed a suit for obtaining stay order against his landlady Khairunisha for preventing her from forcing him to vacate the premises. He received a telephonic call on his mobile from his servant namely Rubina telling him that Hasmuddin and Aas Mohd were beating her and she further told him that she had been thrown out of the clinic. He went to the clinic and found that Rubina had already been shifted by PCR to the hospital. He went inside his clinic as well as his residence which was situated on the first floor of the said premises and found missing his goods/articles of clinic as well as of his house. He went to the police station. Police did not lodge any FIR. Cash amount of Rs. 70,000/ and jewellery consisting ear kundals of his maid servant Rubina were also found missing from his house along with other articles.
7. In respect of the incident dated 18.05.06 PW4 Rubina has been examined as it was she who was present at the premises and injuries were caused to her and she was thrown out of the clinic. However, this witness has not supported the prosecution case. PW FIR no. 389/06, PS Nand Nagri 7/27 4 Rubina stated that the incident had taken place on 18.05.06. At that time she was working as a helper in nursing home Sitara Medical Centre run and managed by Nazmuddin. On that day at about 2.00 PM she was present in the said nursing home with Manzoor Ahmad, accused Aas Mohd (correctly identified) along with two other persons came to the clinic and started vandalizing the place. She inquired from them as to why they were doing that on which they started giving beatings to her as well as Manzoor Ahmad. The other two persons who were with accused Aas Mohd were not present in the court. Dr. Nazmuddin was not present in the clinic at that time as he had gone to the court. They damaged all the property lying in the clinic and ousted them from the clinic and locked the same. Someone informed the police. Police reached there and took them to the hospital. She could identify two persons who had accompanied accused Aas Mohd to the clinic of Nazmuddin and gave beatings to her and Manzoor Ahmad. In her cross examination she admitted that accused Hasmuddin present before the court had not accompanied accused Aas Mohd. to the clinic on the day of incident i.e. 18.5.2006. She has also stated that in her presence police recorded statement of Manzoor Ahmed who FIR no. 389/06, PS Nand Nagri 8/27 was also injured in the said incident. Despite the fact that PW4 Rubina has categorically stated that Manzoor Ahmed was also present at the time of incident. He also received injuries and police also recorded his statement but the police as well as the complainant are totally silent about the presence of Manzoor Ahmed at the place of incident and for best known reasons to them same is being concealed. Manzoor Ahmad has not been arrayed as a prosecution witness though his testimony was very crucial as he was present at the time of incident. PW4 Rubina has not stated about the presence of other accused persons. There is nothing on record to suggest that Abul Rauf and Hasmuddin forcibly entered / trespassed the premises or gave beating to Rubina, maid servant of the complainant Nazmuddin Saifi. In view of the testimony of the witness a doubt is created even regarding the presence of accused Aas Mohd. as PW4 Rubina has not fully supported the case. She has also not stated that accused persons took away the articles belonging to complainant. She has simply stated that the accused persons damaged the property lying, ousted them from the clinic and locked the same.
8. In respect of the incident dated 21.5.2006, it has been testified FIR no. 389/06, PS Nand Nagri 9/27 by PW1 Nazmuddin Saifi that on 21.5.06 in the murga market he was sitting at the shop of Sumit Communication alongwith his wife. Aas Mohd., Rauf and Hasmuddin came there. Aas Mohd. told his companions that he was torturing his sister in law. Aas Mohd. was having a hockey and Hasmuddin was having an iron rod and Rauf was having a danda. Aas Mohd. gave him a hockey blow on his head and he fell on the floor and his wife tried to save him by laying herself upon him. Aas Mohd. threw away his daughter aged about three years namely Sakiba on the floor after forcibly taking her from him. His wife was also given beatings with danda and iron pipe on her back. His daughter did not receive any injury. His wife and he received injury in the incident. Though MLC of his wife Husanara Ex.PW6/C shows that there was no sign of external injury. As soon as the people of market came there including one Babloo, the said Babloo was also given beatings by the accused persons when he tried to save him from them. He tried to run away from there but they did not allow him to do so. One of his relatives Nizamuddin r/o Seema Puri also reached there and he made a call on 100 number. Police came there and took them to GTB Hospital. In the hospital he was not treated properly as FIR no. 389/06, PS Nand Nagri 10/27 doctors connived with the accused persons and they were given medical aid only after intervention of their advocate. SI Rambir recorded his statement after two days of the incident i.e. 23.5.2006 after intervention of higher police officers. He identified all the accused persons who gave beatings to him and his wife. Police recovered some of his articles including black and white T.V. make BPL, TATA Walky and some other articles. He identified the articles i.e. black & white T.V., one TATA Walky phone and one wall clock as Ex.P1 to P3. He also identified the weapon of offence i.e. a hockey stick, an iron pipe and a wooden log as Ex.P4 to P6 which were used by the accused persons in beating him and his wife. In his cross examination he admitted that there was no complaint of any incident as alleged by him in his complaint Ex.PW1/A in between 18.5.2006 to 22.5.2006. He also admitted that on his complaint the proceeding u/s 107/151 Cr.P.C. was initiated by the police vide DD NO.82B dt. 22.5.2006, the kalandra of which is Ex.PW2/DA.
9. It will be apposite to reproduce relevant portion of kalandra u/s 107/151 Cr.P.C. Ex.PW2/DA which is as under: "On receipt of DD No.19A, I (ASI Chet Ram) alongwith Ct.
FIR no. 389/06, PS Nand Nagri 11/27 Devender No.1103/NE reached at F1 Block Sunder Nagri where a crowd had gathered in front of shop of Rajiv. On enquiry, it was found that three persons were fighting with Nazmuddin, his wife Husanara, Saleem and Babloo. Their names were revealed as Mohd. Aizaz and Mohd. Zuber. They were beating them with dandas as a result of which there was a breach of peace. He apprehended Mohd. Aizaz, Mohd. Zuber and third person Aas Mohd. fled away from there taking advantage of crowd gathered there. Nazmuddin, Husanara, Aslam and Babloo were got medically examined in GTB Hospital. They had received simple injuries".
The contents of Ex. PW2/DA clearly show that name of accused Abdul Rauf and Hasmuddin does not find mention. The two persons who were apprehended at the spot and who were giving beatings to the complainant and his family and other two persons were Mohd Aizaz and Mohd Zuber whose name do not find mention in the chargesheet at all. It is vivid and clear that police as well as the complainant are trying to conceal something and have not come to the court with clean hands.
10. PW1 Nazmuddin Saifi further admitted that he had stated on oath before the court of Ld. Special Executive Magistrate, Delhi on FIR no. 389/06, PS Nand Nagri 12/27 26.07.06 in Ex. PW1/DA that on 18.05.06 when he went to the court in his absence the accused in the kalandra namely Mohd Aizaz and Mohd Zuber entered his house and beat his nephew and daughter. Though in Ex. PW1/DA complainant PW1 stated about beatings having been given to his nephew and daughter. Whereas in the complaint Ex. PW1/A filed before the court on the basis of which present case was registered he simply stated about beatings having been given to his servant Rubina. He also admitted that he had not given any list of the household items as stated in his complaint Ex. PW1/A. He admitted that he was not in possession of the house bearing no. F1/1011, Sunder Nagri, Delhi. He further stated that he had stated to the police in his complaint Ex. PW1/A that the jewellery consisting ear kundal of his maid servant Rubina were also found missing from his house. He was confronted with Ex. Pw1/A where it was not so recorded. In his complaint Ex. PW 1/A he stated that on 21.5.06 at about 6.00 PM he along with his wife and daughter Sakiba was sitting at Sumit Communication. Though the incident took place at the shop of Jagdish, neither he nor his son Rahul has been made a prosecution witness for the reasons best known to the IO. He stated that he had stated in his FIR no. 389/06, PS Nand Nagri 13/27 statement Ex. PW1/A that Aas Mohd threw away his daughter aged about 3 years namely Sakiba on the floor after forcibly taking her from him. He was confronted with Ex. PW1/A where it was not so recored. He also admitted that he had not produced the detail of the ownership of the alleged goods to the police in respect of the purchase receipts of the articles. He also admitted that he did not give the denomination of the alleged amount of cash to the police either in his complaint Ex. PW1/A or in his subsequent statements recorded u/s 161 Cr PC. He admitted that police did not interrogate or inquire regarding the incident either from Jagdish or Rajiv Kumar. He admitted that none from the locality of Jagdish or Rajiv was questioned or interrogated in his presence by the police. He further stated that he had stated to the police in his statement that his maid servant namely Rubina had told him on telephone that Hasmuddin and Aas Mohd were beating her and thereafter she told that they were throwing out the goods of the clinic. He was confronted with Ex. PW1/A where it was not so recorded. He also stated to the police in his statement Ex. PW1/A that when he went inside the clinic as well as at his residence which was situated on the first floor of the said premises he found missing his FIR no. 389/06, PS Nand Nagri 14/27 goods/articles of clinic as well as of his house. He was confronted with Ex. PW1/A where it was not so recorded. The accused persons were not arrested on the date when they were appearing in the kalandra Ex. PW1/DA before the Ld. Court of SEM. He stated that in his presence police did not prepare the site plan of the house/ shop of Jagdish and Rajiv. Though PW9 ASI Rambir Singh stated that he had gone to the spot with complainant and with his assistance he prepared the site plan Ex. PW9/B. He denied the suggestion that real culprits have faced trial before Ld. Special Executive Magistrate. He volunteered that accused persons are the real culprits. He denied the suggestion that he had made this false complaint only to create a defence for his civil suit pending against the landlady.
11. The other material prosecution witness is PW2 Husanara wife of Nazmuddin, complainant. She stated that she did not remember the month or year of incident however the date was 21st, at about 5/6 PM she was sitting at one shop of mobile phone situated at Murga market with her husband and daughter aged about 2 years, all the three accused persons namely Aas Mohd, Hasmuddin and Rauf came there and Aas Mohd was having hockey, Hasmuddin FIR no. 389/06, PS Nand Nagri 15/27 was having pipe and Rauf was having danda in their hands. They entered into the said shop. After seeing the aforesaid accused persons with the weapons her husband came on the first floor of the said shop where she was sitting. When she saw downward, Aas Mohd told his companions "is saale ko maaro" and they started beating her husband with aforesaid weapons and her husband received head injury. Her husband became unconscious due to injury. She lay upon him to save him and all the accused started giving her beatings with the weapons. She also sustained injury on her both legs and hands. Though as per her MLC Ex. PW6/C there was no external injury on her person. Though PW2 Husanara has stated that her husband became unconscious due to injuries however as per Ex. PW6/A MLC of Nazmuddin he was conscious and oriented when brought to the hospital. She also stated that two persons also received injuries when they tried to save them from the accused persons. Somebody made a call on 100 number and police came there and shifted them to GTB hospital. She could not say whether TV, Tata Walky, Wall clock belonged to their shop as she used to live on the first floor of the said premises and she did not know about these articles. The same could be verified by her FIR no. 389/06, PS Nand Nagri 16/27 husband only. Police did not recover their household articles as well as cash. She stated that she had told the police in her statement Ex. PW1/A that Aas Mohd was having hockey, Hasmuddin was having iron pipe and Rauf was having danda. She was confronted with Ex. PW2/A i.e. her statement u/s 161 Cr PC dated 23.05.06 where this fact has not been so recorded. She stated that she had told to the police in her statement Ex. PW2/A that when accused persons were beating her husband she lay upon him to save him but the accused persons also beat her. She was confronted with Ex. PW2/A where this fact has not been so recorded. She had told the police in her statement that accused persons threatened to kill her husband. She was confronted with Ex. Pw2/A where this fact has not been so recorded. She admitted that she had deposed before Executive magistrate regarding the present incident on 15.11.06, kalandra is Ex. PW2/D1. She admitted that two accused persons Aizaz and Zuber whose name are mentioned in her statement before Executive Magistrate on 15.11.06 are not facing trial in the present case before this court. It is beyond comprehension as to why the main accused persons Aizaz and Zuber against whom the main allegations were made in Ex. PW2/D1 and who were FIR no. 389/06, PS Nand Nagri 17/27 apprehended at spot have not been arrayed as accused in this case.
12. PW3 Ct. Devender who went to the spot along with ASI Chet Ram on receipt of DD no. 19A has not stated about his presence at the spot. He stated that at the place of arrest of the accused persons, the public persons were coming and going. In his presence IO did not ask any public person to join the investigation at the time of arrest the accused persons. No public person was present at the time of recovery of hockey, danda and iron pipe. The personal search memos of accused Abdul Rauf, Hasmuddin and Aas Mohd Ex. PW1/B, C and D also reflects that nothing was recovered from their possession which again creates a doubt about the apprehension of the accused persons. He further stated that he has no knowledge if any case u/s 107/151 Cr PC was registered against Mohd Aizaz and Mohd Zuber prior to registration of this case. Though he accompanied ASI Chet Ram on receipt of DD no. 19A to the spot when kalandra u/s 107/151 Cr PC was prepared. After the arrest of the accused persons they visited Shani Bazar road, F 2, Sunder Nagri for the recovery of TV, phone and clock. At the time of recovery he, IO and Nazmuddin were present. The recovery memo was prepared in the police station. Nazmuddin had also FIR no. 389/06, PS Nand Nagri 18/27 accompanied them to police station. He did not remember whether IO obtained signatures of Nazmuddin on the recovery memo or not. The recovery memo Ex.PW3/C was shown to the witness which does not bear the signatures of Nazmuddin, complainant. He denied the suggestion that place of recovery of T.V., phone and clock was a thickly populated area. However, it was a residential area. In his presence, IO did not ask any resident in the neighbourhood to join the investigation at the time of recovery. They might have stayed at the house of accused Hasmuddin for recovery about ½ an hour. The said recovery was made from the ground floor portion. During their stay at the above said place, they had seen the public persons passing that way. IO did not ask those persons to join the investigation. The T.V., clock and phone were seized at the spot and after recovery they went to P.S. Non joining of public persons at the time of recovery of the articles from accused Hasmuddin creates a serious doubt about the recovery having effected at the instance of accused Hasmuddin. I am fortified in my opinion by 1992 (1) RCR 646 State of Punjab Vs Gurdial Singh. Though it is stated that complainant Nazmuddin was accompanying them at the time of recovery, however, neither FIR no. 389/06, PS Nand Nagri 19/27 PW Nazmuddin has stated so nor Ex.PW3/C contains his signatures.
13. PW5 Babloo who is also alleged to have been injured in the incident dated 21.5.2006 at 6 P.M. has turned hostile and has not supported the prosecution case. He stated that he did not remember the date, month and year of the incident. He was present at his shop in Murga Market, Sunder Nagri. Two customers came to buy chicken from him. Some 'kaha suni' (altercation) and 'hathapai' (scuffle) had taken place with those customers on account of rate of chicken. He received injuries on his head. He closed his shop and went to GTB Hospital by rickshaw. Police came to GTB Hospital. They made enquiries from him and thereafter police left.
14. PW7 Aslam who is also stated to have been present at the place of incident on 21.5.2006 has not supported the prosecution case. He also testified before the court that he did not remember date, month and year but matter was around 4/5 years back. In the evening time, might be 5 / 6 P.M. he was present near his shop situated at Murga Market, Sunder Nagri, he saw two persons assaulting one lady. He went there to get the lady rescued but he was also assaulted. Somebody called police at number 100. Police FIR no. 389/06, PS Nand Nagri 20/27 arrived there. He and the two persons who were assaulting the lady were taken to Police Station. He was medically examined at GTB Hospital. He sustained injuries over his head. The persons who had given beatings to the lady were taken by the police. He did not remember if he had put his RTI as well as LTI on the C.T. Scan requisition form. He stated that he did not remember due to time gap if xray or C.T. Scan was done. In his cross examination he admitted the suggestion that accused persons present before the court had nothing to do with the occurrence that took place on 21.5.2006 at about 6 P.M. in Murga Market, Sumit Communication.
15. The investigation in the present case has also been done in a very shoddy, sketchy and negligent manner. In his cross examination, IO SI Rambir denied that it was in his knowledge that ASI Chet Ram had already filed a kalandra u/s 107/151 Cr.P.C. on the same complaint against Mohd. Aizaz s/o Mohd. Iliyas and Mohd. Zuber Khan s/o Kallu, both resident of F2 Block, Sunder Nagari, Delhi. He denied the suggestion that he intentionally did not bring the fact of filing of aforesaid kalandra in the investigation. He admitted that he had not prepared any site plan FIR no. 389/06, PS Nand Nagri 21/27 of the spot where the occurrence dated 21.5.2006 had taken place. He admitted that inadvertently he had shown the F block situated on right hand side instead of left hand side. He also admitted that the complainant did not produce any receipt pertaining to ownership of the articles allegedly recovered in this case, though he had asked him to produce the same. He also admitted that he had not prepared site plan of the spot from where the articles were recovered. He stated that nobody came forward to join as witness from the public at the time recovery despite his request. He could not tell the names of those persons as he had not noted down their names. He admitted that recovery was effected from the area where market is situated. He denied the suggestion that he had not conducted the investigation in the fair manner and that he had falsely implicated the accused persons at the instance of complainant or that case property was planted upon the accused persons. He denied the suggestion that he had forged the dates on the seizure memo, though seizure memo of the articles clearly reflects that there is over writing on the date. He also stated that complainant Nazmuddin did not disclose to him that some litigation was in progress between him and his landlord.
FIR no. 389/06, PS Nand Nagri 22/27
16. There are serious lacunas in the prosecution story, some of which are enumerated as hereunder:
(i)PW4 Rubina who was present at the time of incident on 18.5.2006 has not identified any of the accused persons except accused Aas Mohd.
(ii)The person i.e. Manzoor Ahmad who was present on 18.5.2006 at the clinic of PW1 Nazmuddin complainant has not been made a witness by the investigating officer for the reasons best known to him nor he was examined by the prosecution at any stage.
(iii)PW1 Nazmuddin Saifi is not a reliable witness as he has tried to conceal the presence of other offenders as disclosed by him in Ex.PW2/DA and has tried to implicate other accused persons. There is no whisper about Mohd. Aizaz and Mohd. Zuber in his complaint to the police nor he deposed against them in the court.
(iv)Other injured persons i.e. PW5 Babloo and PW7 Aslam have not supported the prosecution case. They have totally disowned the prosecution case and have not even identified the accused persons.
(v)Though PW3 Const. Devender was present alongwith ASI Chet Ram who reached the spot on receipt of DD NO.19A but he has not deposed about the same and feigned ignorance about the kalandra FIR no. 389/06, PS Nand Nagri 23/27 u/s 107/151 Cr.P.C. Though it is clearly mentioned in the kalandra Ex.PW1/DA that he accompanied ASI Chet Ram.
(vi)No public person was called at the time of recovery from accused Hasmuddin and there is overwriting on the date in the seizure memo. Recovery is shown to have been effected on 26.5.2006 though incident is dated 18.5.2006. Signature of complainant Nazmuddin was also not obtained on seizure memo Ex.PW3/C. Therefore, it appears that entire paper work was done at the Police Station.
(vii)Accused persons were not apprehended at the spot. They were apprehended on 24.5.2006, though the first incident occurred on 18.5.2006 and second incident occurred on 21.5.2006 and even at the time of their arrest nothing was recovered from their possession.
(viii) Though PW4 Rubina does not name Hasmuddin. Recovery of the stolen property is shown to have been effected from Hasmuddin. There is nothing on record to suggest that the articles were stolen. Articles were such which could have easily been procured from kabari bazar. Property is shown to have been recovered from room belonging to Hasmuddin which is F2/1011, FIR no. 389/06, PS Nand Nagri 24/27 Sunder Nagri, Delhi. Even in the chargesheet address of Hasmuddin is reflected as F2/1011, Sunder Nagri, Delhi. As per case of the prosecution Khairunisha is the landlady of the premises F2/1011. Accused Hasmuddin is her son in law. As per the complaint Ex. PW1/A, the articles were stolen from F2/1011, Sunder Nagri, Delhi and in his cross examination PW1 Nazmuddin admitted that he was not in possession of the house. he admitted that he had filed a suit for recovery or possession prior to 18.5.06 which suggest that he was not in possession of the premises on the date of incident.
13. All the above circumstances create a doubt in the prosecution story. One of the cardinal principles of administration of criminal justice system is that an accused is presumed to be innocent unless that presumption is rebutted by the prosecution by producing evidence as may show him to be guilty of the offence with which he is charged. This initial burden of proving the guilt is on the prosecution and unless it relieves of that burden, the court cannot record a finding of guilt against him. Another golden thread which runs through the web of administration of justice is that if two views are possible on the evidence adduced in the case, one FIR no. 389/06, PS Nand Nagri 25/27 pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be accepted. In cases in which the court entertains reasonable doubt regarding the guilt of the accused, the benefit of doubt must be given to the accused and not to the prosecution.
14. In the instant case I am of the view that the testimony of prosecution witnesses is such that it renders the case of the prosecution doubtful and incredible. There are number of infirmities in the testimony of the main prosecution witnesses and such an evidence cannot form the basis of conviction of the accused persons.
15. Prosecution has miserably failed to prove that accused persons attempted death of Nazmuddin, Aslam and Babloo. All the injured persons Nazmuddin, Aslam and Babloo had received only simple injuries. There is nothing on record that they did the act with such intention or knowledge that if it had caused death it could have amounted culpable homicide not amounting to murder. Rather their presence at the place of occurrence in itself is doubtful. The prosecution witnesses have also failed to prove that accused persons forcibly entered or trespassed into the premises belonging FIR no. 389/06, PS Nand Nagri 26/27 to the complainant and caused simple injury to his maid servant Rubina. The recovery of stolen articles from accused Hasmuddin is also doubtful. Accordingly, accused Hasmuddin is acquitted of the charge u/s 411 IPC and all the accused persons are acquitted of the charge u/s 448/323/308/34 IPC. Their bail bond cancelled. Sureties discharged. File be consigned to record room.
Announced in the open court. (Nisha Saxena) On this 23 day of July, 2011. Additional Sessions Judge 05 nd (NE), KKD Courts, Delhi.
FIR no. 389/06, PS Nand Nagri 27/27