Delhi District Court
In Re: State vs Mohd. Khalid on 27 November, 2013
IN THE COURT OF GAURAV RAO: METROPOLITAN MAGISTRATE:SAKET
COURTS : NEW DELHI
In Re: STATE VERSUS MOHD. KHALID
F.I.R. No: 206/03
U/s 457/323 IPC
P.S. Sarita Vihar
Date of Institution of Case : 31.05.2003
Judgment Reserved for : 27.11.2013
Date of Judgment : 27.11.2013
JUDGMENT:
(a) The serial no. of the case : 161/2/03
(b) The date of commission of offence : 15.04.2003
(c)The name of complainant : Sh. Khalil Hashmi s/o
Ahatesham Hashmi
(d) The name, parentage, of accused : Mohd. Khalid s/o Mohd. Islam,
R/o F65/4, Shahin Bagh, New
Delhi
Present Address : As above
(e) The offence complained of : U/s 457/323 IPC
FIR No. 206/03 State Vs. Mohd. Khalid 1/15
(f) The plea of accused : Pleaded not guilty
(g) The final order : Acquitted
(h) The date of such order : 27.11.2013
Brief statement of the reasons for the decision:
1. In brief the case of the prosecution is that on 15.04.2003 at about 04.30 a.m. at F65/5, Shahin Bagh, New Delhi within the jurisdiction of police station Sarita Vihar, accused Mohd. Khalid committed lurking house trespass by entering into the building which was in possession of complainant Khalil Hashmi and used as a human dwelling and caused simple hurt to the complainant and thus thereby the accused committed offences punishable u/s 457/323 IPC.
2. Charge sheet was filed in the court and in compliance of Section 207 accused was supplied the documents. Thereafter vide orders dated 15.10.2004 charge u/s 457/323 IPC was framed against accused to which he pleaded not guilty and claimed trial.
3. In order to prove the charges against the accused, prosecution examined five witnesses, thereafter the PE in the matter was closed and the statement of accused u/s 313 Cr.P.C was recorded wherein he claimed himself to be innocent and having been falsely implicated in the case.
FIR No. 206/03 State Vs. Mohd. Khalid 2/15 A brief scrutiny of the evidence recorded in the matter is as under.
4. PW1 Khalil Hashmi deposed that he does not remember the exact date, month however in the year 2003 one night he along with his younger brother and sister were sleeping in separate rooms. He deposed that on that night his parents were out of station and at about 04.30 a.m. accused namely Khalid Ahmed broke the lock of the door of room and entered into the house. He deposed that they heard some noise and his younger brother and sister also told him that someone is inside the house. He deposed that thereafter he saw accused inside the room and the drawer of the almirah was also opened and accused after seen him ran away from there however he also tried to apprehend him but could not succeed. He deposed that he sustained injuries on his feet while he was apprehending the accused. He deposed that he also found Rs. 10,000/ were missing from the almirah. He deposed that he informed the police and police came at his house and recorded his statement Ex. PW1/A. He deposed that police also arrested the accused in his presence and also conducted personal search vide memo Ex. PW1/B.
5. During his cross examination he stated that his house is of 50 sq. yards and it consists of ground floor and first floor. He stated that in ground floor there are two rooms. He stated that normally his parents were living at the ground floor but at that time his parents were not present. He stated that all his five brothers and sister were living on first floor in separate rooms. He stated that FIR No. 206/03 State Vs. Mohd. Khalid 3/15 on the first floor there was railing of three feet height for the purpose to cover the first floor. He stated that in between his house and the house of accused there are 7 to 8 feet gali. He stated that house of accused also consist of ground floor and first floor but the second floor is not fully complete. He stated that on the first floor there is one room. He stated that brother of the accused was doing embroidery work at his own house. He stated that accused's brother bring embroidery work usually at late night. He stated that after the incident neighbours were also present before he called to police and also informed about the incident to his uncle and Aunt. He stated that police recorded his statement at PS and he was got medically examined at Apollo hospital. He stated that police had recorded the statement at mid day. He stated that police recorded his statement only once. He admitted that in his statement Ex. PW1/A he has not stated about the money which was missing from his house. He voluntarily stated that he had found the same after mid day and same was reported by him to his younger brother. Thereafter witness was confronted with statement Ex. PW1/A where it was not so recorded. He denied the suggestion that he has not stated in his statement Ex. PW1/A that accused entered into his house after breaking the lock of door. Thereafter witness was confronted with Ex. PW1/A where it was not so recorded. He admitted that he had stated in his statement Ex. PW1/A regarding the invisible injuries but he has not stated about the ankle injuries. He denied the suggestion that he was deposing falsely. He denied the suggestion that because of the enmity as his brother running embroidery work from his premises and because of this they were disturbed that is why he has implicated the accused.
FIR No. 206/03 State Vs. Mohd. Khalid 4/15 He denied the suggestion that no such incident took place and injuries were self inflicted to implicate the accused.
6. PW2 Dr. Mahesh proved the MLC as Ex. PW2/A of injured Khalil Hashmi as prepared by Dr. Amit Kumar while deposing that injured Khalil Hashmi had a swelling in left ankle and foot.
7. During his cross examination he stated that such type of injury could be caused because of fall and this injury could be 2 or 3 days back.
8. PW3 Adil Hashmi deposed that he does not remember the exact date but in the month of April 2003 on that night he along with his younger brother were sleeping in separate room and his elder brother was also sleeping in separate room and at about 04.30 a.m. he saw the door of one room was opened and he informed to his elder brother regarding the opening of the door and when his brother saw towards the roof he found that accused Khalid was going upstairs and when his brother tried to apprehend him some quarrel took place between them. He deposed that however accused ran away towards his house as there was a distance of about 3 feet between their house and the house of accused. He deposed that they informed the police and police came to their house. He deposed that police recorded the statement of his brother and his statement was also recorded. He deposed that police took his brother to PS and might have also taken to hospital. He deposed that he found Rs. 10,000/ which were FIR No. 206/03 State Vs. Mohd. Khalid 5/15 missing after the incident and this information was also given to his elder brother.
9. During his cross examination he stated that he was sleeping at the first floor and his brother and sisters were sleeping on the ground floor. He stated that the width of the gali is about 7 feet. He admitted that accused was doing embroidery work at their house. He stated that he was also doing work till 01.00 a.m. He admitted that he has not stated regarding the missing of Rs. 10,000/ from his house. Thereafter witness was confronted with Mark A where it was not so recorded. He admitted that he has not stated in his statement regarding the opening of house when he heard the noise. He stated that there is boundary wall of about 3 feet on their roof. He denied the suggestion that due to enmity with the accused he has been falsely implicated. He denied the suggestion that no such incident took place. He denied the suggestion that no injuries could be caused upon his elder brother.
10. PW4 Constable Narender deposed that on 16.04.2003 while he was posted at PS Sarita Vihar and he had joined the investigation with the IO and he along with IO reached at F65/5, Shahin Bagh where at the instance of complainant IO prepared the site plan and on the pointing out of complainant accused was arrested vide memo Ex. PW4/A and personal search of accused was also conducted vide memo Ex. PW4/A. He deposed that accused was brought at PS. He deposed that IO recorded his statement. During his cross examination he stated that the house of accused is about 57 FIR No. 206/03 State Vs. Mohd. Khalid 6/15 meters away from the house of complainant. He stated that the house of complainant is 2/3 floor but exactly he does not remember. He stated that he does not remember whether the roof of the house of complainant is surrounded by any boundary wall or not. He stated that he does not know how many floors were there in the house of accused. He stated that he did not enter into the house of complainant so he cannot say exactly how many rooms are therein. He stated that no public witness was asked for preparation of site plan. He voluntarily stated that the persons who gathered there the site plan was prepared in their presence. He stated that he does not remember whether IO recorded statement of any witness. He denied the suggestion that the proceedings were carried out in the PS. He denied the suggestion that accused is falsely implicated in this case or that he was deposing falsely.
11. PW5 HC Liyaqat Ali deposed that on 15.04.2003 while he was posted at PS Sarita Vihar and at about 11.50 p.m. one person namely Khalil Hasan came at PS and he recorded his statement Ex. PW1/A and made endorsement Ex. PW5/A and handed over to DO. He deposed that at about 12.10 a.m. he received the copy of FIR and rukka. He deposed that Khalil Hasan was medically examined at Apollo hospital through application Ex. PW2/A. He deposed that due to late night the investigation was started on next day i.e. 16.04.2003 and he along with Const Narender reached at spot i.e. F65/5, Shahin Bagh there at the instance of complainant site plan Ex. PW5/B was prepared and he also recorded the statement of complainant's brother. He deposed that on the FIR No. 206/03 State Vs. Mohd. Khalid 7/15 instance of complainant accused was arrested vide Ex PW4/A and his personal search was carried out vide memo Ex. PW4/A. He deposed that accused was released on bail. He deposed that he recorded the statement of PWs and challan was prepared and filed in the court through SHO.
12. During his cross examination he stated that at about 07.30 a.m. he reached at the spot. He stated that he remained at spot for about one and half hour. He admitted that the place of occurrence is populated and surrounded by the houses. He admitted that he did not give any notice to the public person who refused to join investigation. He stated that he cannot tell the name and addresses of these persons. He stated that the house of the complainant is two story building. He admitted that there is a small height wall on the roof. He stated that the gali was about 68 feet wide. He stated that the house of accused is 3 story building including ground floor. He denied the suggestion that he was deposing falsely or that he did not carry out the investigation.
13. I have heard the arguments advanced at bar by the Ld. Defence counsel as also the learned APP and have carefully gone through the evidence recorded in the matter. I have also scrutinized the documents placed on record by the prosecution in this case.
14. After going through the rival contentions as well as the evidence led by the prosecution and the material on record, I am of the considered opinion that FIR No. 206/03 State Vs. Mohd. Khalid 8/15 the prosecution has failed to bring home the guilt against the accused.
15. Though prosecution examined the complainant i.e. Sh. Khalil Hashmi as PW1 and his brother/eye witness Adil Hashmi as PW3 however their deposition and the prosecution story as a whole did not inspire confidence. The testimony of above two material witnesses suffered from numerous inconsistencies/loopholes and it failed to inspire confidence so as to nail the accused.
16. To begin with as per the prosecution story the incident occurred in the morning of 15.04.2003 at about 04.30 a.m. However the incident was reported to the police at about 11.50 in the night. I have gone through the rukka wherein the time of incident is mentioned as 04.30 a.m. as well as the deposition of IO who stated that the complainant came to the PS at about 11.50 p.m on 15.04.2003. This delay of more than 19 hours has not been explained by the prosecution. I fail to understand as to why the complainant waited the entire day to report the matter to the police. If indeed the accused had trespassed into the property, quarreled with the complainant and injured him the matter should have been immediately reported to the police but as is evident from the above he took 19 hours to report the matter to the police. This inordinate delay which has not been explained itself casts serious doubts upon the prosecution case.
17. I have gone through the complaint Ex.PW1/A which had formed the FIR No. 206/03 State Vs. Mohd. Khalid 9/15 basis of present FIR/prosecution against the accused as well as the deposition of complainant Khalil Hashmi. Not only the testimony does not inspire confidence but it also suffered from material improvements qua the original complaint. For example during his testimony/deposition complainant claimed that the accused had broken the lock of the door of the room and entered into the house however this was missing in the original complaint. The complainant had not stated anywhere in the original complaint that the accused had broken the lock of the door and entered the house. In fact he had claimed that the accused had entered the first floor from the roof via the staircase. This was missing during his testimony/deposition as recorded in the court. Similarly, during his deposition/testimony as recorded in the court the complainant stated that Rs. 10,000/ were missing from Almirah however this was nowhere stated by him to the police in his original complaint. In fact leave apart the money he had not even stated anything regarding the Almirah. These material improvements qua the original complaint casts serious aspersions upon the demeanor of witness in the overall facts and circumstances of the case and renders his testimony unreliable.
18. Apart from the complainant his brother also made similar material improvements regarding the missing amount as against what was originally stated by him during his statement u/s 161 Cr.P.C. recorded by the police.
19. It will be pertinent to highlight here that no broken lock was ever FIR No. 206/03 State Vs. Mohd. Khalid 10/15 seized by the police during the course of investigation. If indeed the accused had broken the lock of the door as claimed by the complainant and thereupon entered the house then the police ought to have seized the broken lock. Same was not the case. Moreover no weapon/instrument which might have been used by the accused to broke open the lock was ever seized. Even the amount of Rs. 10,000/ was never recovered. In fact the investigation is absolutely silent on the said aspect. This necessary implies that complainant was deposing falsely and the prosecution story is concocted one.
20. No doubt the law is well settled that the testimony of the complainant/injured witness has its own efficacy and relevancy because he has no reasons to omit real culprit and implicate falsely the accused persons and that once the eye version is given particularly by the complainant/injured himself, the Court would normally rely upon such version of the prosecution unless it suffers from serious infirmities or improvements. Furthermore Section 134 of the Indian Evidence Act does not require any minimum number of witnesses to be examined for proving a particular fact and it is the quality of evidence that matters and not the quantity/number of witnesses. However in the given case I am of the firm opinion that the absence of public witness has seriously prejudiced the prosecution story because of the delay as discussed above as well as the improvements made by the witnesses coupled with various other factors. Had the IO joined the public witnesses/independent witnesses from locality which the prosecution witnesses claimed were present at the time of incident it would have FIR No. 206/03 State Vs. Mohd. Khalid 11/15 given great weightage/ lend due credence to the prosecution story/claim of the complainant party. Non joining of independent witnesses has further dented the prosecution story because if indeed public/ independent persons were witnesses to the alleged incident they ought to have been joined in the investigation.
21. There is one major flaw in the prosecution/the claim of the complainant party which itself proves that the entire story is a false/concocted one. I have perused the site plan i.e. Ex. PW5/B. In the site plan the distance between the house of complainant and the accused is shown as 8 feet by the IO. Even the complainant party during their deposition stated that the distance was i.e. the width of gali between their houses was around 78 feet. Now a bare glance at site plan coupled with the testimony of prosecution witnesses show that there was no way the accused could have entered into the house of complainant from the roof because both the houses were not connected by any other house/building etc. and there being distance of 8 feet it was humanly impossible for the accused to jump from his roof's house upon the roof of the house of complainant. He could not have traveled/jumped that much distance. It is not the case of prosecution that the accused used any ladder/rope etc. to enter into the house of complainant. The only way the accused could have entered the house was from the ground floor i.e. from the gali. But it is not the case of complainant party or the prosecution story that the accused had broken the main door/entrance door of the house and then entered into the house of complainant. Hence the prosecution could not satisfactorily prove how the accused entered FIR No. 206/03 State Vs. Mohd. Khalid 12/15 into the house of the complainant.
22. Even the injuries which the complainant allegedly received and which the prosecution tried to prove that they were inflicted by the accused further negates the prosecution story. As per the original complaint the complainant had claimed that the accused scuffled with him and gave him fist and kick blows because of which he received invisible/hidden injuries. The relevant part of his complaint read as "mere saath hathapai wahe laat goose maar kar waha se bhag gaya mujhe maamuli gum chot ayi". The prosecution relied upon MLC Ex. PW2/A to substantiate the claim of the complainant. However the nature of injuries as reflected in the MLC are contrary to/inconsistent with the version of the injuries given by the complainant. As per the MLC the complainant had a swelling in his left ankle and foot. It is beyond my contemplation as to how a person who had received kick and fist blows would have a swollen left ankle and foot. Moreover the doctor i.e. Ex. PW2 Dr. Mahesh who proved the MLC admitted that the injuries could have been due to fall and it could be 23 days old.
23. Having discussed above I am of the opinion that the accused was falsely implicated and the reason behind the same was that the complainant party was unhappy with the embroidery work which the accused's brother/accused party used to do till late mid night. I have gone through the relevant portion of cross examination of the complainant and his brother in this FIR No. 206/03 State Vs. Mohd. Khalid 13/15 regard. It was this inconvenience caused to the complainant party because of the noise/sound which the embroidery machines/ embroidery work carried on by the accused party must have been making which led to the accused being implicated in this case.
24. It is cardinal principle of criminal jurisprudence that an accused is presumed to be innocent. The burden lies on the prosecution to prove the guilt of accused beyond reasonable doubt. The prosecution is under a legal obligation to prove each and every ingredient of offence beyond any doubt, unless otherwise so provided by any statute. This general burden never shifts, it always rests on the prosecution. ( Daya Ram v. State of Haryana, (P&H)(DB) ,1997(1) R.C.R. (Criminal) 662).
25. In a criminal trial, the burden of proving everything essential to the establishment of the charge against an accused always rests on the prosecution and there is a presumption of innocence in favour of the accused until the contrary is proved. Criminality is not to be presumed, subject of course to some statutory exceptions. It was observed in Partap v. State of U.P., (SC) 1976 A.I.R. (SC) 966 that while prosecution required to prove its case beyond a reasonable doubt, accused can discharge his onus by establishing a mere preponderance of probability. In Vijayee Singh v. State of U.P., (SC) 1990(3) S.C.C. 190 it was again held that in criminal cases burden is always is on prosecution and never shifts. In Nasir Sikander Shaikh v. State of FIR No. 206/03 State Vs. Mohd. Khalid 14/15 Maharashtra, (SC) 2005 Cri.L.J. 2621 and Jarnail Singh v. State of Punjab, (SC) 1996(1) R.C.R.(Criminal) 465 it was held that it is cardinal principle of criminal jurisprudence that an accused is presumed to be innocent and burden lies on prosecution to prove the guilt of accused beyond reasonable doubt. Prosecution is under legal obligation to prove each and every ingredient of the offence beyond any doubt, unless otherwise so provided by the Statute. (AIR 1962 SC 605 relied). Accused is not expected to prove his innocence to the hilt. If prosecution story is doubtful, benefit of doubt must go to the accused.
26. Prosecution has failed to discharge its onus. Accordingly, accused is entitled to acquittal. I order accordingly.
Announced in the open (Gaurav Rao)
Court on 27.11.2013 MM (SE)/Delhi
FIR No. 206/03 State Vs. Mohd. Khalid 15/15
F.I.R. No: 206/03
P.S. Sarita Vihar
27.11.2013
Pr: Ld. APP for state.
Accused is present on bail today with counsel.
Final arguments heard.
Vide my separate judgment announced today in the open court, accused has been acquitted of the charges in the present case.
Bail bond cancelled, surety discharged, endorsement if any be cancelled, original documents be returned as per rules and procedure.
Fresh bail bonds u/s 437A Cr.P.C. furnished, considered and accepted.
File be consigned to Record Room.
(Gaurav Rao)
MM (SE)/Delhi
27.11.2013
FIR No. 206/03 State Vs. Mohd. Khalid 16/15