Delhi District Court
State vs Saleem Etc. (Convicted) Page 1 Of 16 on 3 November, 2014
FIR No.293/2005: PS Bara Hindu Rao : U/s 324/452/506/34 IPC DOD: 03.11..2014 IN THE COURT OF POORAN CHAND: CHIEF METROPOLITAN MAGISTRATE: CENTRAL DISTICT: DELHI FIR No.: 293/2005 PS: Bara Hindu Rao U/s : 324/452/506/34 IPC Unique ID No.: 02401R1267762006 J U D G M E N T:
______________________________________________________________
(a) S. No. of the case : 06/BH/11
(b) Name of complainant Smt. Santosh Devi:
W/o Shri Kaptal Singh Ranga, R/o H. No.422, Ist Floor, Shivaji Road, Anand Market, Delhi.
(c) Date of commission of offence : 07.11.2005
(d) Name of the accused : (1) Saleem
S/o Mohd. Iliyas,
R/o H. No.B3, Hathi Khana,
Azad Market, Delhi.
(2) Shakeel
S/o Mohd. Aslam,
R/o H. No.6380, Gali Ishwari
Prasad, Bara Hindu Rao, Delhi.
(e) Offence complained of : U/s 324/452/506/34 IPC
(f) Plea of accused : All pleaded not guilty
(g) Final arguments heard on : 21.10.2014
(h) Final Order : Convicted
(i) Date of such order : 03.11.2014
______________________________________________________________ State V/s Saleem etc. (convicted) Page 1 of 16 FIR No.293/2005: PS Bara Hindu Rao : U/s 324/452/506/34 IPC DOD: 03.11..2014 A. BRIEF FACTS & REASONS FOR SUCH DECISION:
The facts of the case as borne out from the record are that both the accused persons namely Saleem and Shakeel committed house trespassed in the premises of complainant and after intimating the complainant with the object to abduct her caused hurt to the complainant and her husband Sh. Kaptan Singh. On the basis of complaint of the complainant, FIR in the matter was lodged, both the accused persons were arrested and after completion of investigation, both the accused persons stood chargesheeted for offences punishable U/s 323/324/452/365/506(II)/511/34 IPC.
3. Both the accused persons were supplied copies of chargesheet and after hearing arguments on charge, vide order dated 23.04.2007, charges for offences punishable U/s 323/324/452/365/506(II)/511/34 IPC were framed against both the accused persons, to which they pleaded not guilty and claimed trial.
4. In order to prove charges against the accused persons, prosecution examined nine witnesses, whereafter the PE in the matter was closed and statements of both the accused persons U/s 313 Cr.P.C were recorded, wherein they claimed themselves to be innocent and having been falsely implicated in the case. The accused persons examined two witnesses in their defence.
5. I have heard arguments in the matter. The learned defence counsel Shri State V/s Saleem etc. (convicted) Page 2 of 16 FIR No.293/2005: PS Bara Hindu Rao : U/s 324/452/506/34 IPC DOD: 03.11..2014 D.K. Singhal and Sh. Atul Kumar Sharma, Advocates have very vehemently argued that the complainant/injured has falsely implicated the accused persons in this matter and there is no legally sustainable evidence against the accused persons in the matter. Per contra, learend Addl. PP has very vehemently argued that the complainant has supported the prosecution case in totality, her evidence is trustworthy and the accused persons are liable to be convicted in this matter.
6. Before adverting to adjudication upon the arguments advanced at bar by both the sides, it would be appropriate to have a brief scrutiny of the evidence recorded in the matter.
7. PW1, Dr. Anuj Kumar Jain proved the MLC No.12012/05 of patient Captan Singh Ranga prepared by Dr. Kaushal Inder Kumar vide Ex.PW1/A. He further deposed that he gave his opinion on the said MLC within red circle only on said Ex.PW1/A. In the cross examination, formal questions that he is not the examining doctor in the matter is put. He denied the suggestions put to him being formal in nature. He volunteered that he also examined the said patient and discharge slip Ex.PW1/B bears his signature at point A.
8. PW2 Constable Vikram and PW3 HC Vijay Singh deposed that on 07.11.2005, they were on patrolling duty and on receipt of one PCR call State V/s Saleem etc. (convicted) Page 3 of 16 FIR No.293/2005: PS Bara Hindu Rao : U/s 324/452/506/34 IPC DOD: 03.11..2014 regarding some accident, reached at H. No.422, First Floor, Shivaji Road, and met with complainant Smt. Santosh who handed over accused Salim and told that other accused Shakeel had succeeded to fled away. They alongwith accused Salim and husband of complainant Sh. Kaptan Singh came to police station and handed over the accused to SI Satya Narain. Their statements were recorded by IO. They identified accused Salim before the Court.
In the cross examination, they stated that they did not know anything else except the fact which they stated in their chief.
9. PW4 HC Vinod Kumar was the Duty Officer who proved the registration of FIR. He proved the copy of FIR as Ex.PW4/A. Cross examination of this witness was recorded as NIL despite afforded opportunity in this regard.
10. PW5 Ct. Man Chand deposed that on 07.11.2005 on receipt of DD no. 31A, he alongwith IO SI Satya Narain went to the spot, however none met them there. They returned back to the police station where they met complainant Santosh and her husband Kaptan Singh alongwith accused persons. He took injured Kaptan Singh and accused Salim to hospital for medical examination. After their return back, IO recorded statement and got the FIR registered through Duty Officer. Accused Salim was arrested in his presence vide memo Ex.PW5/A and his personal search was conducted vide memo Ex.PW5/A. IO recorded his statement.
State V/s Saleem etc. (convicted) Page 4 of 16 FIR No.293/2005: PS Bara Hindu Rao : U/s 324/452/506/34 IPC DOD: 03.11..2014 In the cross examination, he stated that he did not know the name of doctor who examined injured. He denied the suggestion that neither he went to hospital with injured nor his statement was recorded by IO.
11. PW6 HC Jaswant Singh deposed that on 29.11.2005 he was present in the police station when IO SI Jain Narayan came to PS alongwith accused Shakil. IO interrogated accused Shakil in his present and arrested the accused vide memo Ex.PW6/A and personal search of accused Shakil was conducted vide memo Ex.PW6/B. He alongwith IO and accused went to the spot where IO prepared pointing out memo of place of incident vide Ex.PW6/C. He identified accused Shakil before the Court.
In the cross examination, at the spot they had met some people but he did not know their names. He denied the suggestion that neither he nor IO had gone to the spot.
12. PW7 Smt. Santosh is the complainant who deposed that on 07.11.2005 at about 10:30 PM, she alongwith her husband Sh. Kaptan Singh was present in their house no.422, Azad Market, Shivaji Road, Delhi. Her husband came to house after released from jail. Accsued Salim and Shakil were roaming in front of her house. Her husband went for toilet outside the house and both the accused entered in the house and accused Salim caught hold of her hair and gave a blow of slap on her cheek and accused Shakil also gave her slap and taken out the knife and threatened her to withdraw the cases which she had State V/s Saleem etc. (convicted) Page 5 of 16 FIR No.293/2005: PS Bara Hindu Rao : U/s 324/452/506/34 IPC DOD: 03.11..2014 filed in the Court. She raised alarm and hearing the noise, her husband came at the house and tried to caught hold of accused Shakil. Accused Shakil gave a blow of knife to her husband and due to which he sustained injury and accused Shakil ran away from the spot and accused Salim was apprehended by her husband and she bolted the door from outside and made a call on 100 number. Two constables namely Ct. Vikram and Ct. Vijay Bist met her outside the house and she told about the incident to them. Police came and apprehended the accused Salim. Her statement was recorded vide Ex.PW7/A. She further deposed that prior to this on 28.07.2005 and on 30.08.2005, both the accused persons tried to abduct her but she was saved by her husband. She had lodged the case against accused Shakil and three persons namely Tanvir Kalia, Prem Wadhwa and Liyakat but Salim was not involved in that case. She handed over photocopies of all the complaints to the police which was seized vide memo Ex.PW7/B. In the cross examination, she stated that she can read Hindi but she cannot read English properly. Firstly, she got married with Kaptan Singh and after his death she got married with Sh. Arun Kumar. Her husband was in JC as accused in case u/s 420 IPC PS Bara Hindu Rao but said criminal cases stood abated due to death of her husband. She used to pay rent of Rs.10,000/ per month to one Prem Wadhwa, who was landlord of the said premises. She had filed one complaint case against Prem Wadhwa and Shakil in the Court, however the said matter stood compromised. She did not withdraw any case against accused. Her husband used to handle such cases. She denied the State V/s Saleem etc. (convicted) Page 6 of 16 FIR No.293/2005: PS Bara Hindu Rao : U/s 324/452/506/34 IPC DOD: 03.11..2014 suggestion that she and her husband compromised that case after taking money from Prem Wadhwa and accused Salim. Her husband used to pay rent to Prem Wadhwa. Her husband remained in jail for about two years after shifting to the house of Prem Wadhwa. She had not given any rent to Prem Wadhwa when her husband was in jail. She denied the suggestion that accused Shakil and Saleem came to her house for collecting rent. She never gave rent to Shakil and Saleem. She denied the suggestion that her husband came out of jail on 07.11.2005. She admitted that affidavit Ex.PW7/D1 bore her signatures, however said was not filed by her. She also admitted that settlement/compromise deed dated 06.05.2008 Ex.PW7/D2 bore her signatures. However she had not compromised the present case with the accused persons.
13. PW8 Retired SI Sat Narayan deposed on the similar lines as of PW5 Ct. Mam Chand. He prepared site plan Ex.PW8/B, recorded the disclosure statement of accused Saleem Ex.PW8/C and prepared pointing out memo Ex.PW8/D. Thereafter, on 29.11.2005, he arrested second accused namely Shakeel and recorded his disclosure statement Ex.PW8/E. After necessary investigation, he prepared challan and filed the same in the Court.
Initially, cross examination of this witness was recorded as NIL (opportunity given), however on an application u/s 311 Cr.P.C. moved on behalf of accused, he was cross examined wherein he stated that DD no.31A was received by him about 10:15 PM. He was on foot on patrolling. The said State V/s Saleem etc. (convicted) Page 7 of 16 FIR No.293/2005: PS Bara Hindu Rao : U/s 324/452/506/34 IPC DOD: 03.11..2014 constable came to him on foot alongwith DD no.31A. No person in the name of Anil Sharma met him at the spot. There were many pedestrian in the street. During enquiry, many shopkeepers told that some incident occurred at the first floor of house no. 422. He did not find the complainant, accused or the police officials at the spot as they were already went to the police station. He went to the police station and recorded statement of complainant and husband of complainant. In the MLC of accused Salim, doctor opined contents of alcohol. He admitted that complainant handed him over certain photocopies of documents pertaining to some criminal cases filed by her. No knife was recovered from the house of complainant. He denied the suggestions put to him.
14. PW9 Sh. Joginder Singh, medical record clerk proved the MLC of injured Kaptan Singh vide Ex.PW9/A. Cross examination of this witness was recorded as NIL despite being afforded opportunity in this regard.
15. In their statements u/s 313 Cr.P.C, both the accused persons abjured all the allegations against them and have stated that complainant has falsely implicated them.
16. The accused persons examined two defence witnesses in their defence.
17. DW1 Sh. Anil Kumar Sharma was not a summoned witness and come State V/s Saleem etc. (convicted) Page 8 of 16 FIR No.293/2005: PS Bara Hindu Rao : U/s 324/452/506/34 IPC DOD: 03.11..2014 to the Court at the instance of both the accused persons. He deposed that on 07.11.2005 he was present at his shop no 1981, Shivaji Road, Azad Market, Delhi at about 10/10:30 p.m. One Kaptan Singh and Ms. Santosh Kumari came to his hotel and got ordered for two lunch from his hotel and they went away. After 10/15 minutes he got delivered two lunch packet at their premises situated at a distance about 56 feet in front of his hotel. Kaptan Singh released from the jail 12 days prior to incident. In his presence no incident of quarrel or any beatings took place. Kaptan Singh and Ms. Santosh Kumari were not having good antecedents in the area. He has also filed 34 false cases against Prem Wadhwa, Tanvir Kaliya and Liakat Ali. He did not know the present status of the case. Kaptan Singh was a man of criminal character in the area. Santosh has married with 23 persons.
In the cross examination conducted by Ld. APP for the State he stated that he brought his address proof which is Addhar Card showing his address as H. No. 18/1, Near Nirankari Colony, Indira Vikas Colony, Dr. Mukherjee Nagar, SO N/W, Delhi. He admitted the suggestion that he has not brought any document to show that the premises no. 1981, Shivaji Road, was in his occupation. He has advertising business in the said premises but during the day of incident, there was one hotel also namely Shree Sai Vaishno Hotel. There were 10/11 employees in his hotel. He used to sit as Manager of the said hotel. As it was a mini hotel like Dhaba, no register or any other documents were used to be prepared on receipt of any order of food. He denied the suggestion that a hotel cannot be termed as mini hotel wherein State V/s Saleem etc. (convicted) Page 9 of 16 FIR No.293/2005: PS Bara Hindu Rao : U/s 324/452/506/34 IPC DOD: 03.11..2014 10/11 employees were doing work. He knew Kaptan Singh and Ms. Santosh Kumari due to the reason that they were famous in media due to reports of Jholachap doctor. Another reason for knowing them was that they were involved in many criminal cases and Kaptan Singh had even gone to Jail. Santosh Kumari and Kaptan Singh had ordered food from his hotel many times. Santosh Kumari used to sit at his hotel for many times and they used to request her to go back. The reason of his remembering the date 07.11.2005 is that on the next date he came to know that someone has again been falsely implicated by Kaptan Singh and Santosh Kumari and later on he had come to know that two persons were falsely implicated by said Kaptan Singh and Santosh Kumari. Kaptan Singh and Santosh Kumari had falsely implicated many persons. He did not remember the dates of said false implications of persons. He denied the suggestion that he had stated the date 07.11.2005 on instance of the accused persons only and not out of his memory. He further denied the suggestion that he has created a false story at the instance of the accused persons. Complainants used to reside near his hotel and as per his knowledge they were tenants of Prem Wadhwa. Lunch used to be prepared in his hotel from 12 noon to 4 p.m. The complainants had ordered for dinner at his hotel. He had reached there at about 10/10:30 p.m. It takes 10/15 minutes in frying the food articles and packing them. He denied the suggestion that he had not visited the house of complainant on the said date. The house of complainant was situated at the first floor, second floor and the terrace of the building. He denied the suggestion that nothing could be visible from the State V/s Saleem etc. (convicted) Page 10 of 16 FIR No.293/2005: PS Bara Hindu Rao : U/s 324/452/506/34 IPC DOD: 03.11..2014 place up to where he had gone. He volunteered that there were big windows of 6 x 6' and he was able to see inside the house of the complainant. There were no curtains in the said house. He denied the suggestion that the said time cannot be of 8 p.m. or 9 p.m. Santosh Kumari was having a son aged about 89 years. He knew Sh. Prem Wadhwa very well. He has good relation with him. He admitted that he had not having good terms with the complainants. He remained outside the house of complainant for about five to ten minutes. He stated that nothing happened at the house of complainant as house of complainant was visible from his shop. He denied the suggestion that he was not running any dhaba on the given premises in the year 2005.
17. DW2 Mohd. Shaban deposed that he was residing at the above address since last 20 years. One Anil ji told him that one case was pending in the court against the accused Salim and Shakeel regarding some incident took place on 07.11.2005 but he stated in this court that no incident of any kind took place in his presence. Kaptan Singh and one lady namely Santosh used to file false cases against the persons of their neighbourhood to extort money from them. He was present in the hotel of Anil on 07.11.2005 w.e.f 10:45 p.m. to 11:30 p.m and during this time no incident took place. Ms. Santosh was residing in front of hotel in the premises of one Prem Wadhwa. On 08.11.2005, Anil Ji told him about some incident on 07.11.2005. Saleem and Shakil had not told him about such incident till that day. Anil Ji had told him about arrest of Shakil by police. They had visited the office of ACP and State V/s Saleem etc. (convicted) Page 11 of 16 FIR No.293/2005: PS Bara Hindu Rao : U/s 324/452/506/34 IPC DOD: 03.11..2014 DCP but the said officers did not meet them. He did not file and written complaint to said police officers. Complainant and her husband had not made any complaint against him or his family members. He used to take tea and dinner at the hotel of Anil ji. He denied the suggestion that police had come to the house of complaint and injured Kaptan Singh. He knew that complainant and her husband were criminals as three to four cases were pending against them. He denied the suggestions put to him.
Arguments advanced and Court view
18. I have heard final arguments advanced by both the sides and have also perused the entire judicial record, carefully.
19. It is argued on behalf of the State that in view of the testimony of prosecution witnesses especially of the complainant namely Smt. Santosh coupled with the medical record, prosecution has been succeeded to prove the charge against the accused persons. Hence, accused persons be convicted and sentenced, as per law.
20. Per contra, it is argued on behalf of accused persons that prosecution has failed to prove its case. It is also contended that accused persons have been falsely implicated by the complainant and her husband namely Sh. Kaptan Singh as no such incident has taken place on 07.11.2005. It is also contended that Sh. Kaptan Singh and the complainant are not having good antecedents in the area and Sh. Kaptan Singh is a criminal. It is argued that as State V/s Saleem etc. (convicted) Page 12 of 16 FIR No.293/2005: PS Bara Hindu Rao : U/s 324/452/506/34 IPC DOD: 03.11..2014 accused persons have been falsely implicated in this case, they be acquitted for the charge.
21. I perused the evidence adduced on record, carefully. Both the accused persons were charged for offence u/s 452/323/324/365/511/506(II)/34 IPC. To prove this charge, prosecution examined PW7 Smt. Santosh as the eye witness. She has deposed in the witness box "that on 07.11.2005 at about 10:30 PM, she alongwith her husband Sh. Kaptan Singh was present in their house no.422, Azad Market, Shivaji Road, Delhi. Her husband came to house after released from jail. Accsued Salim and Shakil were roaming in front of her house. Her husband went for toilet outside the house and both the accused entered in the house and accused Salim caught hold of her hair and gave a blow of slap on her cheek and accused Shakil also gave her slap and taken out the knife and threatened her to withdraw the cases which she had filed in the Court. She raised alarm and hearing the noise, her husband came at the house and tried to caught hold of accused Shakil. Accused Shakil gave a blow of knife to her husband and due to which he sustained injury and accused Shakil ran away from the spot and accused Salim was apprehended by her husband and she bolted the door from outside and made a call on 100 number. Two constables namely Ct. Vikram and Ct. Vijay Bist met her outside the house and she told about the incident to them. Police came and apprehended the accused Salim." During cross examination, this witness has stated that she has never compromised the present case with the accused State V/s Saleem etc. (convicted) Page 13 of 16 FIR No.293/2005: PS Bara Hindu Rao : U/s 324/452/506/34 IPC DOD: 03.11..2014 persons but she has compounded the complaint which was filed against Sh. Prem Wadhwa and Sh. Shakeel only. She has also categorically denied the suggestion during cross examination that accused Shakeel and Saleem came to her house for collecting rent. She has admitted the existence of Compromise Deed dated 06.05.2008 Ex.PW7/D2 in respect of other complaint case filed against one Sh. Prem Wadhwa. Here, the question is whether prosecution has been able to prove the charge against accused persons. The testimony of this witness as mentioned above, remained intact even during cross examination. There is consistency in the deposition of this witness regarding the incident happened. Not only this, the presence of the accused persons have also not been denied by the defense as the complainant in reply to the suggestion put to her has stated that "accused Shakil and Saleem came to her house for collecting rent", meaning thereby the presence of accused persons is also not denied. Now, the question is whether the incident as stated by the complainant took place or not. I perused the medical record of Sh. Kaptan Singh, husband of the complainant, where doctor has categorically opined the injury at point A as simple. It is pertinent to mention here Sh. Kaptan Singh could not appear in the witness box as he died during pendency of case.
22. In order to prove the defense, accused persons examined two defense witnesses i.e. Sh. Anil Kumar Sharma as DW1 and Sh. Mohd. Shaban as DW2. Both these witnesses have deposed in the witness box that on State V/s Saleem etc. (convicted) Page 14 of 16 FIR No.293/2005: PS Bara Hindu Rao : U/s 324/452/506/34 IPC DOD: 03.11..2014 07.11.2005 in the evening no such incident as alleged by the complainant taken place but during cross examination by Ld. State counsel, these witnesses have failed to convince the Court that DW1 was running a Dhaba at the address given in the deposition. DW2 has stated that regarding the incident, he was told by Sh. Anil Kumar i.e. DW1 therefore his evidence is of no use being hearsay evidence. Moreover, PW2 Ct. Vikram and PW3 HC Vijay Singh, both have deposed that on receipt of DD they reached on the spot where complainant handed over accused Saleem to them. This piece of evidence also corroborate the testimony of complainant.
23. Complainant in her deposition has also alleged that accused Shakeel has entered alongwith coaccused in her house and shown a knife. Not only this, he has gave knife blow on her husband due to which he sustained injuries but the said knife could not be recovered as accused Shakeel ran away from the spot and accused Saleem was apprehended at the spot. The testimony of police witnesses also corroborate the version of complainant. Medical record of deceased Kaptan Singh also proved the version of complainant that he sustained injury due to blow of knife. The testimony of the IO is also supported the version of complainant. From the evidence come on record, there is no evidence come on record to substantive the charge u/s 365 and 506 (II) of IPC, hence, both the accused persons are acquitted for offences u/s 365 and 506 (II) of IPC. However, there is sufficient evidence to prove the charge u/s 324/452/506(I) IPC.
State V/s Saleem etc. (convicted) Page 15 of 16 FIR No.293/2005: PS Bara Hindu Rao : U/s 324/452/506/34 IPC DOD: 03.11..2014
25. In view of my above reason, both the accused persons are convicted for offences u/s 324/452/506(I) IPC.
Announced in the open court (Pooran Chand)
on 03.11.2014 Chief Metropolitan Magistrate:
Central District: Delhi
State V/s Saleem etc. (convicted) Page 16 of 16