Delhi District Court
State vs . Imran on 19 December, 2015
IN THE COURT OF SH. SONU AGNIHOTRI
CHIEF METROPOLITAN MAGISTRATE, DISTRICT EAST
KKD COURTS, DELHI
FIR No. 489/07
PS Pandav Nagar
State Vs. Imran
JUDGMENT
UID No. 02402R0768642007 a. Sl. No. of the case : 325/07 b. Date of commission of offence : 06.09.2007 c. Name of the complainant : Shyam Sunder d. Name of the accused, his parentage and address : Imran S/o Mustak Ahmed R/o H No. 15/3, Trilok Puri, Delhi.
e. Plea of accused : Pleaded not guilty f. Offence complained of or proved: 323/341 IPC FIR No. 489/07 PS Pandav Nagar Page No. 1/14 g. Final order : Acquitted h. Date of Institution : 01.12.2007 i. Judgment reserved on : 27.11.2015 j. Judgment delivered on : 19.12.2015 BRIEF FACTS:
1. As per prosecution version, on 06.09.2007, HC Govind Sahay received DD No. 53B which was kept pending for investigation. It is stated that on 11.09.2007, complainant Sh. Shyam Sunder came to PS and gave his statement.
2. Complainant in his statement stated that on 06.09.2007 at about 07:00 PM as soon as he turned after getting his car out of parking and stationed his car in proper lane, one car bearing No. DL3CN5838 came from front and it was parked in front of his car. He stated that he asked the person to come in his own lane but that person abused him and told him to back his car. He stated that he FIR No. 489/07 PS Pandav Nagar Page No. 2/14 asked that person as to why he was abusing him whereupon, the person came out of his car. Complainant stated that he also came out of his car. Complainant stated that the person entangled into scuffle with him and started beating him. He stated that he suffered injuries because of the same. He stated that when the driver of the car tried to escape, he noted down registration number of his car.
3. It is stated that HC Govind Sahay got lodged FIR, prepared site plan, recorded statements of witnesses and searched for accused.
4. It is stated that HC Govind Sahay served notice u/sec 160 Cr. P. C. to owner of car whereupon owner came to PS who was arrested at instance of complainant. It is stated that accused was personally searched. It is stated that information of arrest of accused was given to his brother Shakeel Ahmed. It is stated that accused was released on police bail. It is stated that result of MLC of complainant was taken which was opined to be simple.
5. After completion of investigation charge sheet was filed before the court on 01.12.2007.
FIR No. 489/07 PS Pandav Nagar Page No. 3/14
6. On appearance of accused before court, provisions of Section 207 Cr. P. C. were complied with. Prima facie case having been made out, charge u/s 341/323 IPC was framed against accused on 02.01.2008 to which accused pleaded not guilty and claimed trial. Prosecution examined following witnesses to prove its case:
PW 1: Shyam Sunder
PW 2: Dr. Sushil Kumar
PW3: Ct. Kanwar Pal
PW4: HC Govind Sahai
PE was closed vide order of court on 15.07.2013.
Statement of accused u/s 313 Cr. P. C. was recorded on 20.08.2014 in which all incriminating evidence and circumstances appearing in evidence against accused were put to accused to which accused stated that witnesses produced by prosecution are interested witnesses being police officials. He stated that he is innocent in this case and he has been falsely implicated by complainant. He stated that he was going by his car smoothly and slowly. He stated that complainant misbehaved with him so public persons beaten him.
FIR No. 489/07 PS Pandav Nagar Page No. 4/14
Accused in defence evidence examined himself as DW1. DE was closed on 22.09.2015 on submissions of counsel for accused.
I have heard final arguments addressed by respective counsels and perused the record.
Decision and Brief Reasons for the Same Before disclosing my opinion with respect to present case i.e. whether prosecution has been able to prove guilt of accused beyond reasonable doubt or not, I will discuss evidence led by prosecution and defence.
PW1 Shyam Sunder is complainant who exhibited his statement recorded by police vide Ex. PW1/A, arrest memo of accused vide Ex. PW1/B and photocopy of his treatment papers vide Ex. PW1/C (Colly). He correctly identified accused before court.
PW2 Dr. Sushil Kumar exhibited MLC No. 7331/07 dated 06.09.2007 of complainant Shyam Sunder vide Ex. PW2/A. PW3 Ct. Kanwar Pal is police official who handed over original tehrir and copy of FIR to IO at the spot. Personal search memo of FIR No. 489/07 PS Pandav Nagar Page No. 5/14 accused was exhibited in his deposition vide Ex. PW1/B (in actual, the exhibit is Ex. PW3/B and it appears that nomenclature of exhibit has been recorded wrongly in deposition of witness on account of typographical mistake).
PW4 HC Govind Sahai is IO who exhibited rukka vide Ex. PW4/A, site plan vide Ex. PW4/B, disclosure statement of accused vide Ex. PW4/C and personal bond of accused vide Ex. PW4/D. He correctly identified accused before court.
DW1 Imran Khan has not exhibited or proved any document on record. He has deposed that he was coming from his office at about 06:30 PM in his car on the day of alleged incident. He deposed that when he reached at Aggarwal Road, Mayur Vihar, PhaseI, complainant parked his car on the road whereupon he told complainant to remove the same as the same was creating obstruction in his way whereupon complainant used abusive language to him and threatened that he is resident of local vicinity and accused will face dire consequences. He deposed that then he started his car and left alleged place of incident. He deposed that he has been falsely implicated in the present case by complainant. FIR No. 489/07 PS Pandav Nagar Page No. 6/14
Accused admitted MLC No. 7331/07 vide Ex. CA2 and FIR No. 489/07, PS Pandav Nagar u/sec 341/3213 IPC vide Ex. CA3 in his statement recorded u/sec 294 Cr. P. C. on 15.10.2011.
After going through evidence as adduced by witnesses examined by prosecution, I am of the view that prosecution has failed to establish guilt of accused beyond reasonable doubt. The reasons as to why I have arrived at this conclusion are as follows:
Firstly, IO has failed to place on record copy of DD No. 53 B on receipt of which, IO allegedly went to the spot on the day of alleged incident i.e on 06.09.2007. IO/PW4 in his cross examination admitted that copy of DD No. 53B was not placed on the file. It is an important missing link in story of prosecution.
Further, alleged incident is of date 06.09.2007 whereas complainant gave his statement Ex. PW1/A on basis of which FIR in present case was lodged only on 11.09.2007. The reason for delay in getting FIR lodged has been given by complainant /PW1 in his deposition. PW1 has deposed that his statement was not recorded by local police on the same day and that he was assured that they will register the case on apprehending FIR No. 489/07 PS Pandav Nagar Page No. 7/14 the culprit. He deposed that after three four days of the incident, his statement was recorded by police which is Ex. PW1/A. IO /PW4 on the other hand in his examination in chief has deposed that on that day i.e on 06.09.2007, complainant Shyam Sunder was not feeling well as such he has not given his statement. The reasons for not giving statement immediately on basis of which FIR in present case was lodged have been stated differently by complainant and IO which casts shadow of doubt on prosecution version and false implication of accused in these circumstances cannot be ruled out. To my mind, complainant has failed to account satisfactorily, delay in getting FIR lodged in present case.
Further, IO has failed to bring on record any proof that accused was owner of car bearing No. DL3CN5838. IO has not filed alongwith the charge sheet RC of the said vehicle. Accused /DW1 in his cross examination by state has stated that he had one Maruti 800 car bearing registration number DL3CAZ5838. No suggestion has been given by state to accused in his cross examination regarding number of vehicle he had at the time of alleged incident. Number of vehicle stated by accused in his cross examination is different from what has been stated by complainant in FIR No. 489/07 PS Pandav Nagar Page No. 8/14 Ex. PW1/A and in his examination in chief. Failure of IO to bring on record proof of exact number of vehicle involved is an important missing link in story of prosecution in these circumstances.
Further, complainant/PW1 in his examination in chief has improved his version quite a lot vis a vis Ex. PW1/A. Complainant in Ex. PW1/A has stated that accused entered into scuffle with him and started beating him. Complainant in his examination in chief has deposed that on he objecting, accused started beating him with punch which was wrapped with handkerchief, by fists and kick blows on his face, head and on his eye. He further deposed that accused also kicked him on his private parts. So detailed complainant is in his deposition before court regarding manner and weapon of offence which should have been detailed by him in Ex. PW1/A as he had sufficient time to think and give his statement as the same was given after 5 days of alleged incident. All this improvement /addition by complainant in his examination in chief creates shadow of doubt on his version.
Further, complainant in Ex. PW1/A has not stated that he became unconscious after the alleged incident whereas in his deposition FIR No. 489/07 PS Pandav Nagar Page No. 9/14 before court, complainant in his examination in chief deposed that due to injury sustained by him, he fell down on the road and became unconscious. He deposed that on seeing his condition, accused fled away from the spot. He deposed that public persons who gathered there lifted him and gave him water and he was made to sit on a chair. All these aspects of alleged incident are missing in Ex. PW1/A and there is lot of improvement/addition made by complainant in his examination in chief before court. All this reduces his credit as witness. Though complainant in his cross examination has stated that he stated to police that he became unconscious but it was not written by police. In case complainant was aggrieved by incomplete recording of his statement by police, he should have made complaint to higher police authorities but complainant has not said anything of such sort in his cross examination.
Complainant /PW1 in his cross examination has been confronted with the fact that he told to police that he sustained injury on his left eye also (confronted with Ex. PW1/A). Complainant in his cross examination has stated that PCR officials have written his statement on the same day at the spot but no such statement has been brought on record by FIR No. 489/07 PS Pandav Nagar Page No. 10/14 IO which falsifies version of complainant.
Further, as per PW3 and PW4 /IO, notice u/sec 160 Cr. P. C. was given to accused but no such notice u/sec 160 Cr. P. C. has been proved on record by state. It is an important missing link in story of prosecution.
Carbon copy of notice u/sec 160 and 175 Cr. P. C. has been filed by IO with the charge sheet as per which accused has been directed to appear in PS on 11.09.2007 at 02:00 PM. IO in his cross examination has stated that he reached at house of accused at 07:00 PM to serve notice u/sec 160 Cr. P. C. He stated that accused Imran met him in his house and he informed him to came at PS. He stated that he returned back at PS at around 07:35 PM and thereafter accused also came in the PS after five minutes. Contents of time of appearance of accused in the PS in pursuance of notice u/sec 160 Cr. P. C. have not been correctly stated by IO in his cross examination vis a vis notice u/sec 160 Cr. P. C. Perusal of examination in chief of PW4/IO shows that as per IO, notice u/sec 160 Cr. P. C. was given by IO to accused after registration of FIR in present case whereas perusal of carbon copy of notice u/sec 160 Cr. P. C. shows that the FIR No. 489/07 PS Pandav Nagar Page No. 11/14 same does not bear FIR number. All this suggests some sort of manipulation on part of IO to help out complainant.
Further, no description of personality of accused has been described by complainant in his statement Ex. PW1/A. Accused was not known to complainant as per Ex. PW1/A. Name of accused has not been mentioned by complainant in Ex. PW1/A. In these circumstances, best course available to IO was to go for TIP of accused which has not been got done by IO. As per complainant in his examination in chief, accused was apprehended by police within three four days of incident and he saw accused in PS. IO/PW4 in his examination in chief deposed that complainant was also present in PS who identified accused.
It is well settled that failure to hold test identification parade, which should be held with reasonable despatch, does not make the evidence of identification in court inadmissible rather the same is very much admissible in law. Question is what is its probative value? Ordinarily identification of an accused for the first time in court by a witness should not be relied upon, the same being from its very nature, inherently of a weak character, unless it is corroborated by his previous identification in FIR No. 489/07 PS Pandav Nagar Page No. 12/14 the test identification parade or any other evidence. The purpose of test identification parade is to test the observation, grasp, memory, capacity to recapitulate what a witness has seen earlier, strength or trustworthiness of the evidence of identification of an accused and to ascertain if it can be used as reliable corroborative evidence of the witness identifying the accused at his trial in court. If a witness identifies the accused in court for the first time, the probative value of such uncorroborated evidence becomes minimal so much so that it becomes, as a rule of prudence and not law, unsafe to rely on such a piece of evidence.
Hon'ble Supreme Court of India in case titled as "Vaikuntam Chandrappa And Ors. vs State Of Andhra Pradesh AIR 1960 SC 1340" held as below: "It is also true that the substantive evidence is the statement in court; but the purpose of test identification is to test that evidence and the safe rule is that the sworn testimony of witnesses in court as to the identity of the accused who are strangers to the witnesses, generally speaking, requires corroboration which should be in the form of an earlier identification proceeding."
FIR No. 489/07 PS Pandav Nagar Page No. 13/14
In present case, no TIP of accused has been got done by IO and identification of accused by complainant in PS creates doubt regarding identification of accused before court in circumstances of present case as discussed in various paras of this judgment.
In the circumstances as discussed above, I am of the view that there is lot of improvement in version of complainant in his deposition before court, no TIP of accused has been got done by IO and there are various important missing links in story of prosecution. There are fair chances that accused might have been falsely implicated in present case and version of accused may also be true as stated by him in SA. Prosecution in these circumstances cannot be said to have proved its case against accused beyond reasonable doubt. There is no requirement of testing ingredients of offences u/sec 323/341 IPC on facts of present case in these circumstances. Accused is therefore acquitted for offences u/s 323/341 IPC. File be consigned to Record Room.
Announced in the open court (SONU AGNIHOTRI)
Dt. 19.12.2015 Chief Metropolitan Magistrate
District East
Karkardooma Courts, Delhi.
FIR No. 489/07 PS Pandav Nagar Page No. 14/14