Delhi District Court
State vs . Abid & Muzim Rehman on 22 September, 2022
IN THE COURT OF SH. BHARAT AGGARWAL, METROPOLITAN
MAGISTRATE-05, SHAHDARA DISTRICT, KARKARDOOMA COURTS, DELHI
FIR No. 185/2016
PS. Jagatpuri
U/s 323, 341 r/w 34 IPC
State Vs. Abid & Muzim Rehman
JUDGMENT
A. SL. NO. OF THE CASE : 620/2017
B. DATE OF INSTITUTION : 09.02.2017
C. DATE OF OFFENCE : 23.06.2016
D. NAME OF THE : Sh. Mehrajuddin @ Gabbar
COMPLAINANT S/o Sh. Sahabuddin @ Badshah
E. NAME OF THE ACCUSED : 1. Abid S/o Sh. Zakir
PERSONS 2. Muzim Rehman S/o Lt. Sh.
Feruddin
F. OFFENCE COMPLAINED OF : u/s 323 & 341 r/w 34 IPC
G. PLEA OF ACCUSED : Pleaded not guilty
H. FINAL ORDER : Conviction
I. DATE OF FINAL ORDER : 22.09.2022
BRIEF STATEMENT OF REASONS FOR DECISION:
1. Accused persons were produced before the court to stand trial for the offences punishable 323 & 341 r/w 34 IPC of Indian Penal Code, 1860.
2. In brief, facts of the case as per the prosecution are that on 23.06.2016, upon receiving DD no. 59, HC Kamaljeet alongwith Ct. Jaiveer reached at the spot i.e. Gali no. 5, Old Brijpuri, Delhi. It is alleged that at the spot they came to know that the injured has been already taken to hospital and thereafter they went to LBS hospital and collected the MLC no. 8952 of injured Merajuddin S/o Sahabuddin with the report "A/H/O assault & u/o Blunt". It is further alleged that FIR no. 185/2016 PS Jagatpuri State Vs. Abid & Muzim Rehman Page 1 of 24 injured/complainant was not found at the hospital and IO searched the address of the injured, however he could not be traced. It is alleged that thereafter, on 24.06.2016, injured/complainant came at the police station and gave his statement wherein he inter alia stated that on 23.06.2016 at about 11.45 PM he was going to his friend's home and when he reached at Gali no. 5, Old Brijpuri he saw that his neighbor Anwar was arguing with Muzim, Musheer and Abid and when he enquired about the same, accused Muzim stated "tu bada chaudhari ban raha hai" and started abusing him. It is further alleged that upon complainant's resistance to their abusing, the accused persons started beating him and when he tried to run, accused Abid caught the complainant from behind and accused Muzim and Mushir started beating him with legs, fist and bricks due to which he sustained injuries on his head and other parts of the body. Thereafter, complainant/injured called at 100 number and his family member took him to LBS hospital for his treatment.
3. Upon the said complaint, IO got the FIR registered and conducted the investigation. During the course of investigation, IO prepared the site plan at the instance of complainant and apprehended the CCL (child in conflict with law) at complainant's instance and later on handed over the CCL to his father upon undertaking. It is further alleged that thereafter, IO arrested the accused Abid and Muzim and later on released them on bail as the offences were bailable in nature. Upon completion of investigation and after obtaining the final opinion on MLC, IO filed the charge-sheet under section 323 & 341 r/w 34 IPC against the accused persons.
4. Accused persons namely Abid and Muzim appeared before the court on 01.05.2017 and copy of charge sheet was supplied to them as per section 207 Cr.P.C on 01.05.2017. Accused persons were charged for the offences punishable u/s 323 & 341 r/w 34 IPC by the Ld. Predecessor of this court on 10.10.2017 to which they pleaded not guilty and claimed trial. Further accused persons admitted MLC no. 8952 dated 24.06.2016 Ex. P1 and accordingly, witness at serial no. 4 & FIR no. 185/2016 PS Jagatpuri State Vs. Abid & Muzim Rehman Page 2 of 24 5/doctors were dropped from the list of witnesses.
PROSECUTION'S EVIDENCE:
5. In order to substantiate its case, the prosecution has examined following witnesses:
5.1 PW-1 W/HC Anju Sharma deposed that on 24.06.2016, she was posted at PS Jagat Puri as H.Ct. and on that day she was working as duty officer and her duty hours were from 08.00 A.M. to 04:00 PM. She further deposed that on that day at about 08.10 AM, HC Kamaljeet produced before her a rukka for registration of FIR.
She further deposed that she lodged kaimi vide DD entry 18A in this regard and photocopy of the same was taken on record as Ex. PW1/A (OSR). She also deposed that she also made endorsement on the rukka in this regard Ex. PW1/B and on the basis of said rukka, she recorded FIR Ex. PW1/C bearing no. 185/2016, PS Jagat Puri in the present matter. She further deposed that after registration of FIR, she handed over copy of FIR and original rukka to Ct.Jaivir to further hand over the same to H.Ct. Kamaljeet for investigation.
5.2 PW-2 Sh. Mehrajuddin @ Gabbar s/o Sh. Shabuddin @ Badsha deposed that on 23.06.2016 at about 10:00 PM he received call of his neighbor Anwar Ali on his phone and he informed him that Mujib, Mushir & Abid were knocking at his door through their legs and they were also abusing him and he further asked PW-2 to come to his house to have talks with the accused persons as to why they were behaving in such a way. He further deposed that thereafter he went to house of his neighbour Anwar Ali and saw that Mujib, Mushir & Abid were hitting the doors of Anwar by their legs and they were also abusing him at that time. He FIR no. 185/2016 PS Jagatpuri State Vs. Abid & Muzim Rehman Page 3 of 24 further deposed that upon seeing him the accused persons uttered "tu jyada chaudhary ban raha hai". He further deposed that thereafter accused Mujib gave a slap blow on his cheek and one other person namely Saleem who is also a neighbour was present there and on seeing accused Mujib giving slap to PW-2, he had taken him away from there to his house situated nearby the spot. He further deposed that they were present outside of Saleem's house and in the meantime, the accused persons reached there and started giving beatings to him with legs and fist blows and he also sustained injury on his forehead and deposed that he cannot tell what was the object through which accused persons caused said injuries on his forehead.
He further deposed that blood was oozing out from his forehead and thereafter he made a call to the police at 100 no. and police took him to LBS hospital where got medical treatment. He further deposed that police recorded his statement Ex. PW2/A. PW-2 during his testimony correctly identified the accused persons present in the court. He further deposed that police had apprehended the accused persons and accused Mujib & Abid were arrested vide arrest memo Ex.PW2/B and Ex.PW2/C respectively and personal search of both the accused were got conducted vide personal search memo Ex. PW2/D and Ex. PW2/E respectively. He further deposed that accused Mujib and his son Mushir were apprehended from the house and Abid was apprehended from Khureji Khas main at his instance. He further deposed that he had pointed out the place of incident to the police and police prepared the site plan at his instance.
PW-2 was cross-examined by Ld. APP for the State wherein he admitted that on 23.06.2016 at about 11:45 PM, he was going to house of Anwar Ali from his house. He further admitted that when FIR no. 185/2016 PS Jagatpuri State Vs. Abid & Muzim Rehman Page 4 of 24 he reached in Gali no. 5, Old Brij Puri, he saw that abovesald accused persons were having altercation with Anwar Ali. He further admitted that when he asked accused persons as to why they were quarreling with Anwar Ali, they started abusing him and when he objected they tried to manhandle him. He further admitted that when he started moving from the spot to save himself, in the meantime accused Abid had caught hold of him from behind and accused Mujib and Mushir started beating him with legs, fist and also with a brick. He further admitted that he had not stated some material facts during his examination in chief on his own due to lapse of time.
PW-2 was cross-examined by Ld. Counsel for the accused persons where he stated that he does not know the address of Anwar Ali and stated that he had got his statement recorded with the police twice i.e. on 23.06.2016 and stated that he does not remember the other date. He further stated that his statement was recorded at the police station at the first time. He further stated that there were about 10-15 public persons at the spot at the time of incident but he cannot tell their names and address. He further stated that the public persons who were present there have seen that beatings were given to him by accused persons. He further deposed that he cannot tell the name of public persons other than Anwar Ali. He stated that Anwar Ali had witnessed the incident that beatings were given to him. He further stated that he cannot tell the object used by the accused persons from which he received injuries and stated that he does not remember who got him admitted in the hospital. He further stated that police official met him at the hospital and his statement was recorded for the second time at the hospital. He further stated that he was discharged from the hospital on the same day at FIR no. 185/2016 PS Jagatpuri State Vs. Abid & Muzim Rehman Page 5 of 24 night. He stated that blood was oozing out from his head but he does not remember as to whether the blood fell down on his cloth or not. He further stated that after recording his statement at the police station as well as in the hospital, thereafter police never met him. He further stated that no documents were prepared in his presence by the police. He admitted that the incident had taken place at the public place and stated that he called the PCR but the PCR police never met him. He further stated that he does not remember whether the police took his clothes or not.
5.3 PW-3 Sh. Anwar Ali s/o Late Sh. Md. Shah, deposed that he does not remember the exact date, month and year of the incident, however he stated that it must be an year ago. He further deposed that on that day at about 07-07:30 PM his son Sohaib had quarrelled with son of accused Mujib namely Mushir. He further deposed that residents of the gali had intervened and separated them and thereafter, he along with his children were standing in front of their house in the gali and other residents of the gali were also present there. He further deposed that in the meantime complainant Mehrajuddin was passing through the gali in front of his house and he asked him as to why they were standing there to which PW-3 replied to him that his son had quarrelled with son of accused Mujib and thereafter, he asked them to go inside his house. He further deposed that they went inside his house and said Mehrajuddin was outside their house at that time. He further deposed that thereafter Mehrajuddin had asked Mujib as to what happened upon which Mujib while abusing Mehrajuddin stated to him "tu kya yahan ka DC laga hai" and he deposed that thereafter Mehrajuddin and Mujib had FIR no. 185/2016 PS Jagatpuri State Vs. Abid & Muzim Rehman Page 6 of 24 hot altercation and in the meantime, accused Mujib, his son Mushir and Javed had started abusing Mehrajuddin. He further deposed that at that time he was inside his house and from inside his house he was hearing their abuses to Mehrajuddin. He further deposed that he identified Mujib, Mushir and Javed after hearing their voice, when they were hurling abuses to Mehrajuddin and after hearing the abovesaid abuses extended to Mehrajuddin, he tried to come out from his house and when he tried to open the door of his house he found that someone latched their main door from outside and deposed that he was prevented by someone from coming out from his house. He further deposed that he did not see as to what happened with Mehrajuddin. He further deposed that after about one and half hours of abovesaid abusing extended to Mehrajuddin, some one had unlatched their main door. He further deposed that he came to know later on that Mehrajuddin was given beatings by Mujib, his son and Javed. PW-3 correctly identified the accused persons present in the court. However he stated that name of nephew of accused Mujib is Javed and further stated that he is not aware about the exact name of nephew of Mujib and name of his nephew might be Javed.
PW-3 was cross-examined by Ld. APP for the State wherein he admitted that present incident occurred on 23.06.2016 and on that day Abid, Mujim Rehman and his son Mushir had taunted his children by saying them "kabari kabari" and they used to harass his children. He further admitted that at about 11:45 PM, he was passing through said gali, where accused Abid, Mujim and Mushir met him and he asked them as to why they were harassing his son upon which they started altercating with him.
FIR no. 185/2016 PS Jagatpuri State Vs. Abid & Muzim Rehman Page 7 of 24He further admitted that in the meantime, his known Mehrajuddin @ Gabbar also reached at the spot and asked abovesaid persons as to why they were altercating with him. He further admitted that when Mehrajuddin asked them in this regard, accused Mujim Rehman told him that "tu bada Chaudhary ban raha hai". He further admitted that said persons started abusing Mehrajuddin and when he objected to their abusing they were ready to beat him. He further admitted that name of nephew of accused Mujim is Abid and he inadvertently mentioned his name as Javed. He further denied the suggestion that he had seen incident at around 11:45 PM on 23.06.2016 when accused persons given beatings to Mehrajuddin. He was further asked whether if he called Mehrajuddin on the date of incident any time earlier than 11:45 PM to which refused making any such call.
PW-3 was cross-examined by Ld. Counsel for the accused persons wherein he admitted that both the accused persons present in the court were his neighbours. He further admitted that complainant Mehrajuddin is not his neighbour. He further admitted that he came to depose in the present matter along with complainant Mehrajuddin. He further stated that police did not record his statement at any point of time and police did not meet him at the spot. He stated that the abusing took place in front of the door of his house and when Mehrajuddin reached in their gali, PW-3 was standing in front of his house and many residents of the gali were present there and in the said resident one Salim Sahab and family members of accused persons were also present. He further stated that house of Salim Sahab is situated in front of his house and he stated that police did not enquire from his children .
FIR no. 185/2016 PS Jagatpuri State Vs. Abid & Muzim Rehman Page 8 of 245.4 PW-4 HC Jaiveer, deposed that on 23.06.2016 he was posted at PS Jagatpuri as Constable and on that day IO HC Kamal Jeet received a DD no. 59A regarding quarrel happened at Gali no. 4, Old Brijpuri Mark PW-4/P. He further deposed that he alongwith IO HC Kamal Jeet reached at the spot i.e. Gali no. 4, Old Brijpuri and got the information that complainant/injured already went to the LBS Hospital. He further deposed that thereafter they went to the hospital and searched the complainant/injured but he could be found and collected the MLC no. 8959/16 Ex. P1. He further deposed that thereafter on 24.06.2016, complainant came at the police station Jagatpuri and IO HC Kamal Jeet recorded the statement (tehrir) of complainant Ex. PW-2/A and IO prepared the rukka Ex. PW-1/B and same was handed over to DO for registration of FIR. He further deposed that DO had registered the FIR no. 185/2016 Ex. PW-1/C and thereafter, he alongwith IO HC Kamal Jeet and complainant went to house of the accused but no one was found there. He deposed that IO arrested the accused persons namely Mujheem Rehman and Abid at the instance of complainant from Khajuri Chaupal vide arrest memos Ex. PW-2/B and Ex. PW-2/C and also personally searched them vide personal search memos Ex. PW-2/E and Ex.PW-2/D respectively and both were released on police bail. PW-4 during his testimony correctly identified the accused persons present in the court.
PW-4 was cross-examined by Ld. Counsel for both the accused persons wherein he stated that IO received the DD no. 59A at time about 11.56 PM. He further stated that he alongwith IO reached at H. No. 251, Gali no. 4, Khureji and stated that he FIR no. 185/2016 PS Jagatpuri State Vs. Abid & Muzim Rehman Page 9 of 24 does not remember whether DD entry was made by IO or not. He stated that when they reached at the spot, 4-5 persons were present there, however, he stated that he cannot tell the names and addresses of the those persons. He further stated that he does not remember at what time they reached at the hospital and how long they were present in hospital and further stated that he does not remember as to when they reached the police station. He further stated that after registration of the FIR, he went to the spot with copy of FIR and original rukka on his motor cycle. Nothing material elicited from his cross examination.
5.5 PW-5 IO/ASI Kamaljeet deposed that on 23.06.2016, he received DD no. 59A regarding quarrel at Brijpuri and he alongwith Jaiveer went to the spot and they came to know that victim was taken to LBS Hospital by the family members. He further deposed that thereafter he alongwith Ct. Jaiveer reached the hospital and collected the MLC of the injured, however, victim could not be found in the hospital. He further deposed that the address on the MLC was incomplete and so they could not find the victim. He further deposed that on 24.06.2016, at about 08.00 AM, the victim/complainant reached the PS and gave his complaint Ex. PW-2/A and thereafter he prepared the tehrir in his own handwriting Ex. PW-5/A and got registered the FIR. He further deposed that thereafter he alongwith complainant went for search of accused persons at Khureji and after about 1 hour Ct. Jaiveer came to him and he handed over original and copy of FIR. He further deposed that thereafter at the instance of complainant, site plan was prepared Ex. PW-5/B. Thereafter both accused persons were arrested and personally searched vide memos Ex. PW-2/B & Ex. PW-2/C, Ex. PW-2/D & Ex. PW-
FIR no. 185/2016 PS Jagatpuri State Vs. Abid & Muzim Rehman Page 10 of 242/E in the presence of complainant. He deposed MLC of complainant was collected with the report "simple" and thereafter, he recorded the statement of all witnesses under section 161 of Cr. P.C. He further deposed that he prepared the charge-sheet and filed before the Court. He further deposed that he recorded the statement of complainant Ex. PW-5/C. PW-5 during his testimony correctly identified the accused persons present in the court.
PW-5 was cross examined by Ld. Counsel for the accused persons wherein he stated that he alongwith Ct. Jaiveer went to the spot from the police station by two wheeler scooter but he does not remember the registration no. of said vehicle. He further stated that he cannot tell the name of the person who got admitted the injured in the hospital. He stated that he is not sure but it was the brother of the complainant. He further stated that they cannot find the complainant in the hospital as he was already been referred to higher authority. He further deposed that he alongwith complainant went to the Khureji Chaupal to trace the accused persons and further stated that Khureji Chupal is the public place and further stated that he did not make any public person as witness from the Khureji Chaupal. He further stated that he also did not make any witness from the residence of accused Abid.
6. After completion of prosecution evidence, statements of accused persons u/s 313 Cr.P.C. was recorded on 29.09.2022, wherein accused persons stated that they have been falsely implicated. Further, they chose not to lead any defense evidence and the final arguments were heard from both the sides.
FIR no. 185/2016 PS Jagatpuri State Vs. Abid & Muzim Rehman Page 11 of 24ARGUMENTS ON BEHALF OF THE PROSECUTION AND DEFENCE:
7. It was argued on the behalf of the defence that the prosecution has failed to make out any case against the accused and they deserves to be acquitted. It was submitted by Ld. Counsel for accused that the accused persons have been falsely implicated by the police officials in the present case and the entire prosecution story is made-up and no offence has been committed by the accused.
8. Ld. Counsel for the accused also argued that there is a delay in registration of the FIR as the same has been registered on the next day of the incident. It was argued that allegedly the brick with which the offence was committed and the injuries were caused to the complainant was also not recovered. He further argued that admittedly the blood stained clothes of the victim were not seized by the IO and there is no eye witness to the incident.
9. Ld. Counsel for the accused also argued that despite admitting that one Sh. Saleem has witnessed the incident, he was not made a witness by the prosecution for reasons best known to the prosecution. He further argued that there are several contradictions in the testimony of the prosecution witnesses and accordingly, the accused persons deserves to be acquitted. Finally, it was vehemently argued on behalf of the accused persons that they have not committed the offence for which they were charged for and prosecution has failed to discharge its burden to prove that the they have committed the offence complained of.
10. On the other hand, it was argued by the Ld. APP for the prosecution that prosecution has established the guilt of the accused beyond reasonable doubt especially through the evidence of the complainant and PW-3. He has further argued that the prosecution has been able to establish that the accused has committed the offence of causing simple hurt and wrongful restraint of the complainant/victim by the accused persons with common intention on 23.06.2016 FIR no. 185/2016 PS Jagatpuri State Vs. Abid & Muzim Rehman Page 12 of 24 at about 11.45PM PM at Gali no. 5, Old Brijpuri, Delhi. Prosecution has further argued that accused persons were apprehended upon the pointing out of the complainant and there is sufficient evidence against the accused in the present matter to convict them for the offences punishable under section 323 & 341 r/w s. 34 IPC.
FINDINGS WITH REASONS:
11. Arguments were heard at length from both the sides and the case file has been carefully perused. Briefly stated, it is the case of the prosecution that on 23.06.2016, at about 11.45 PM, the accused persons alongwith a CCL caught the complainant forcefully and voluntarily caused hurt to him by beating him and thereby caused simple injuries. It is alleged that thereafter the complainant called at 100 number and he was taken to the hospital. It is alleged that police officials after preparation of the site plan and recording of the statement of witnesses, arrested the accused persons on pointing of the complainant and they were later released on bail.
12. Considering the allegations of the prosecution and the material available on record, both accused were charged for offences punishable under Section 323 & 341 read with s.34 IPC by the Ld. Predecessor of this Court vide order dated 10.10.2017. Accordingly, the accused persons have faced trial for offence of voluntarily causing hurt to the complainant and wrongfully restraining complainant on 23.06.2016
13. It is a settled proposition of law that prosecution is supposed to prove its case beyond reasonable doubts by leading reliable, cogent and convincing evidence. It is also well settled that in order to prove its case, prosecution is supposed to stand on its own legs and it cannot derive any benefit whatsoever from the weaknesses, if any, in the defence of the accused. The burden of proof of the version of the prosecution in a criminal trial throughout the trial is on the FIR no. 185/2016 PS Jagatpuri State Vs. Abid & Muzim Rehman Page 13 of 24 prosecution and it never shifts to the accused. The accused is entitled to the benefit of every reasonable doubt in the prosecution story and such doubt entitles the accused to acquittal.
14. The accused have been charged for the offence of voluntarily causing hurt.
Section 323 IPC is extracted below for better understanding:-
323. Punishment for voluntarily causing hurt.- Whoever, except in the case provided for by section 334, voluntarily causes hurt, shall be punished with imprisonment of either decription for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both.
The term "hurt" is defined under section 319 IPC as bodily pain, disease or infirmity caused to any person by another person. The offence of voluntarily causing hurt is defined under section 321 IPC as follows:-
321. Voluntarily causing hurt.--Whoever does any act with the intention of thereby causing hurt to any person, or with the knowledge that he is likely thereby to cause hurt to any person, and does thereby cause hurt to any person, is said "voluntarily to cause hurt".
15. The accused persons have also been charged for the offence of wrongful restraint. "Wrongful restraint" is defined under section 339 IPC, which reads as under:-
339. Wrongful restraint.-
Whoever voluntarily obstructs any person so as to prevent that person from proceeding in any direction in which that person has a right to proceed, is said wrongfully to restrain that person.
Exception.- The obstruction of a private way over land or water which a person in good faith believes himself to have a lawful right to obstruct, is not an offence within the meaning of this section.
FIR no. 185/2016 PS Jagatpuri State Vs. Abid & Muzim Rehman Page 14 of 24The offence of wrongful restraint is punishable under section 341 IPC with simple imprisonment for a term which may extend to one month or with fine which may extend to Rs. 500/- or both.
16. To prove the guilt of the accused for the offences they are charged with in the present matter, it is incumbent upon the prosecution to prove the following facts:
a) that the accused persons have with common intention voluntarily caused bodily pain to the complainant on 23.06.2016; and
b) that the accused persons have with common intention wrongfully restrained the complainant which prevented him from proceeding in any particular direction due to the brawl which allegedly took place on 23.06.2016.
17. PW-2/complainant and PW-3 Anwar has deposed regarding the details of the incident. PW-1 WHC Anju has deposed regarding the receipt of the rukka and the registration of the FIR. PW-4 HC Jaiveer has deposed regarding the receipt of the DD 59A regarding quarrel and subsequent investigation. PW-5 IO ASI Kamaljeet has deposed regarding the conduct of the investigation, preparation of the site plan Ex. PW-5/B, arrest of the accused persons, recording statement of the witnesses and filing of the charge-sheet in the court.
18. In the present matter, the most important witness produced by the prosecution is the complainant/PW-2 himself who has inter alia deposed that on 23.06.2016 upon receipt of call from his friend PW-3 Anwar, he went to his house and saw the accused standing there with CCL and after some altercation, CCL slapped him and thereafter all three of them gave beatings to him with legs and fist blows. He further deposed that due to injuries caused by the accused persons, blood was oozing from his forehead and thereafter he made a call at 100 FIR no. 185/2016 PS Jagatpuri State Vs. Abid & Muzim Rehman Page 15 of 24 number and was taken to the hospital. He further deposed that the police prepared the site plan at his instance and accused Abid had caught hold of him from behind and other accused Muzim and CCL Mujib had beaten him with legs, fist and also a brick. It is an admitted position on record that certain facts were only disclosed by the complainant upon cross examination by Ld. APP as PW-1 could not state all the facts completely during his testimony due to lapse of time. The complainant herein is the most essential witness to the case of the prosecution and the courts have always placed much weight and reliance upon the testimony of the complainant or the injured who has suffered the offence, injuries and the subsequent mental trauma at the behest of the accused persons.
19. Further the other essential public witness PW-3 Anwar Ali has inter alia deposed that CCL Mujib abused the complainant/victim PW-2 and he could hear the abused hurled by accused persons however he could not go out from his house as it was locked from the outside. Upon his cross examination by the Ld. APP he revealed that he did not see the accused persons beating the complainant as he was inside his house and it was latched from the outside. The testimony of PW-3 has remained consistent with the testimony of PW-2 and both the testimonies inspires confidence and are trustworthy when read in entirety in light of the other evidence led on record.
20. At this juncture, it is essential to reproduce the observations of the Hon'ble Supreme Court in "Abdul Sayeed v. State of M.P"., [(2010) 10 SCC 259], which are as follows:
"30. The law on the point can be summarised to the effect that the testimony of the injured witness is accorded a special status in law. This is as a consequence of the fact that the injury to the witness is an inbuilt guarantee of his presence at the scene of the crime and because the witness will not want to let his actual assailant go unpunished merely to falsely implicate a third party for the commission of the offence. Thus, the deposition of the injured witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies therein.FIR no. 185/2016 PS Jagatpuri State Vs. Abid & Muzim Rehman Page 16 of 24
31. Ashfaq (PW 2) had given a graphic description of the entire incident. His presence on the spot cannot be doubted as he was injured in the incident. His deposition must be given due weightage. His deposition also stood fully corroborated by the evidence of Anees (PW 1) and Usman Ali (PW 4). The depositions so made cannot be brushed aside merely because there have been some trivial contradictions or omissions."
21. In the present case, the testimony of the complainant/PW-2 has remained consistent with his statement given to the police and there are no major contradictions which would make his untrustworthy of credence. Further, the complainant has given complete details of the incident which took place on 23.06.2016 whereby the accused persons with common intention caught hold of him and gave beatings to him. His testimony has remained consistent and is worthy of credit throughout his examination and cross-examination and has been further corroborated with testimony of other witnesses. The complainant is the star witness to the present case who has clearly and completely deposed in detail regarding the facts of the alleged incident. Even though there may be certain variations in the testimonies regarding the time and date of each act and whether PW-3 called the complainant or not, however that by itself cannot demolish the case of the prosecution.
22. It has been argued by the ld. Counsel for the accused that there is delay in lodging of FIR as the it is of 24.06.2016 whereas the incident is of 23.06.2016. He has further argued that the same shall entitle the accused persons for acquittal. However, the said argument is found to be merit-less as the incident as per the version of the prosecution took place on 23.06.2016 at about 11:45 PM and the FIR was lodged on the very next day on 24.06.2016. The prosecution has explained the delay by the evidence led on record by stating that on 24.06.2016 at about 8:00 AM the complainant came to the police station and gave his statement regarding the incident after which the FIR was registered. It is very common that the injured would first get the medical treatment and thereafter he will be in a position to meet the police officials and make a formal complaint.
FIR no. 185/2016 PS Jagatpuri State Vs. Abid & Muzim Rehman Page 17 of 2423. Ld. Counsel for the accused argued that the brick alleged by PW-2 during his testimony and his blood stained clothes were not recovered by the investigative agency and accordingly the accused persons must be acquitted. Such argument also does not seem to justify the acquittal of the accused persons as mere non recovery of alleged weapon of offence or material which could have supported the case of the prosecution would not entitle per se the accused persons for acquittal especially when there are other incriminating and clinching evidence against the accused on record.
24. Ld. Counsel for the accused persons further argued that despite admission of availability of public witnesses and one person namely Saleem on the spot of the incident, they have not been cited as witnesses in the present case and accused persons must be acquitted on this ground itself. However, the submission too is not found to be convincing as it has been held time and again that the quality of the evidence brought on record matters much more than quantity of it. It has further been observed by the superior courts time and again that mere absence of independent public witnesses would not entitled the accused for acquittal if the evidence led on record establishes his guilt beyond reasonable doubt.
25. The creditworthiness of the witness PW-2 cannot said to be have shaken due to the aforesaid minor variations and the fact that certain essential facts were brought on record during his cross examination by the Ld. APP for the State. It is essential to understand that a witness can be re-examined by the Ld. APP, subject to permission of the court, for clarification of aspects dealt by the witness in her cross examination by the defence. Reliance is placed upon the observations of the Hon'ble Supreme Court in "Rammi Vs. State of MP" [(1999) 8 SCC 649], which are as follows:
16. The very purpose of re-examination is to explain matters which have been brought down in cross-examination. Section 138 FIR no. 185/2016 PS Jagatpuri State Vs. Abid & Muzim Rehman Page 18 of 24 of the Evidence Act outlines the amplitude of re-examination. It read thus:
"138. * * * * * Direction of re-examination- The re-examination shall be directed to the explanation of matters referred to in cross-examination; and if new matter is, by permission of the court, introduced in re- examination, the adverse party may further cross-examine upon that matter."
17. There is an erroneous impression that cross-examination should be confined to clarification of ambiguities which have been brought down in cross-examination. No doubt, ambiguities can be resolved through re-examination. But that is not the only function of the re-examiner. If the party who called the witness feels that explanation is required for any matter referred to in cross- examination he has the liberty to put any question in re- examination to get the explanation. The Public Prosecutor should formulate his questions for that purpose. Explanation may be required either when the ambiguity remains regarding any answer elicited during cross-examination or even otherwise. If the Public Prosecutor feels that certain answers require more elucidation from the witness he has the freedom and the right to put such questions as he deems necessary for that purpose, subject of course to the control of the court in accordance with the other provisions. But the court cannot direct him to confine his questions to ambiguities alone which arose in cross-examination.
18. Even if the Public Prosecutor feels that new matter should be elicited from the witness he can do so, in which case the only requirement is that he must secure permission of the court. If the court thinks that such new matters are necessary for providing any material fact, courts must be liberal in granting permission to put necessary questions.
26. Further it was argued that there are certain contradictions in the testimony of the PW-2 from his earlier statement. However it is essential here to point out that no such contradictions was pointed out by the Ld. Counsel during the arguments and no contradiction was proved on record during the course of entire evidence as required under the Cr.P.C and as laid down by the Hon'ble Supreme Court in "V.R. Mishra vs State of Uttarakhand" [(2015) 9 SCC 588].
FIR no. 185/2016 PS Jagatpuri State Vs. Abid & Muzim Rehman Page 19 of 2427. Further this court cannot lose sight of the fact that there are certain minor variations in the testimonies led on record like whether PW-3 Anwar called the complainant or he was simply passing by from the spot. However, the aforesaid minor variation in the versions of PW-2 and PW-3 cannot be said to be enough to impeach their credibility. Reliance is placed upon the observations of the Hon'ble Supreme Court of India in "Bhagwan Jagannath Markad v. State of Maharashtra", [(2016) 10 SCC 537], which are reproduced herein below:
"19. While appreciating the evidence of a witness, the court has to assess whether read as a whole, it is truthful. In doing so, the court has to keep in mind the deficiencies, drawbacks and infirmities to find out whether such discrepancies shake the truthfulness. Some discrepancies not touching the core of the case are not enough to reject the evidence as a whole. No true witness can escape from giving some discrepant details. Only when discrepancies are so incompatible as to affect the credibility of the version of a witness, the court may reject the evidence. Section 155 of the Evidence Act enables the doubt to impeach the credibility of the witness by proof of former inconsistent statement. Section 145 of the Evidence Act lays down the procedure for contradicting a witness by drawing his attention to the part of the previous statement which is to be used for contradiction. The former statement should have the effect of discrediting the present statement but merely because the latter statement is at variance to the former to some extent, it is not enough to be treated as a contradiction. It is not every discrepancy which affects the creditworthiness and the trustworthiness of a witness. There may at times be exaggeration or embellishment not affecting the credibility. The court has to sift the chaff from the grain and find out the truth. A statement may be partly rejected or partly accepted [Leela Ram v.State of Haryana, (1999) 9 SCC 525, pp. 532-35, paras 9-13 : 2000 SCC (Cri) 222] . Want of independent witnesses or unusual behaviour of witnesses of a crime is not enough to reject evidence. A witness being a close relative is not enough to reject his testimony if it is otherwise credible. A relation may not conceal the actual culprit. The evidence may be closely scrutinised to assess whether an innocent person is falsely implicated. Mechanical rejection of evidence even of a "partisan"
or "interested" witness may lead to failure of justice. It is well known that principle "falsus in uno, falsus in omnibus" has no general acceptability [Gangadhar Behera v. State of Orissa, (2002) 8 SCC 381, pp. 392-93, para 15 : 2003 SCC (Cri) 32] . On the same evidence, some accused persons may be acquitted FIR no. 185/2016 PS Jagatpuri State Vs. Abid & Muzim Rehman Page 20 of 24 while others may be convicted, depending upon the nature of the offence. The court can differentiate the accused who is acquitted from those who are convicted. A witness may be untruthful in some aspects but the other part of the evidence may be worthy of acceptance. Discrepancies may arise due to error of observations, loss of memory due to lapse of time, mental disposition such as shock at the time of occurrence and as such the normal discrepancy does not affect the credibility of a witness."
28. It is pertinent to mention here that MLC of the victim/complainant i.e. Ex. P1 of 24.06.2016 at 12.30 AM shows that the complainant had certain injuries like lacerated wound 1*0.5cm at center forehead, abrasion on center head parietal region and swelling on head (occipital region). The injuries as per the final opinion in the MLC are simple. There is no denial of the fact that hurt has been caused to the complainant which has been established beyond reasonable doubt. The injuries sustained by the complainant/injured have been proved on record. The complainant has also clearly identified the accused persons during the trial and has made clear allegations of forcefully causing injuries to him by wrongfully restraining him. The defense has failed to attribute any specific reason as to why the victim would have falsely implicate the accused persons. The complainant/injured has remained consistent in his testimony and the injuries stands proved on the record.
29. Apart from the argument regarding lack of independent witnesses, Ld. Counsel has not pointed out to any specific inconsistencies in the testimonies of the police witnesses. In the considered opinion of this court, the testimonies of police witnesses cannot be simply ignored just because they are interested in the conviction of the accused. However, needless to say such testimonies are required to be scrutinised with caution and circumspection. In a case like the one at hand where the police witnesses have stood-up well to the rigors of cross examination, their statements have inspired confidence of the court and they have remained consistent on record, the court cannot ignore the same due to absence of an independent uninterested witness.
FIR no. 185/2016 PS Jagatpuri State Vs. Abid & Muzim Rehman Page 21 of 2430. At this juncture, it is relevant to refer to the observations of Hon'ble Supreme Court of India in "Baldev Singh Vs. State of Haryana". [(2015) 17 SCC 554], which are reproduced below:-
10. There is no legal proposition that evidence of police officials unless supported by independent evidence is unworthy of acceptance. Evidence of police witness cannot be discarded merely on the ground that they belong to police force and interested in the investigation and their desire to see the success of the case. Prudence however requires that the evidence of the police officials who are interested in the outcome of the result of the case needs to be carefully scrutinised and independently appreciated. Mere fact that they are police officials does not by itself give rise to any doubt about their creditworthiness.
11. Observing that no infirmity is attached to the testimony of police officials merely because they belong to police force and that conviction can be based on the testimony of police officials in Girja Prasad V. State of M.P. it was held as under: (SCC pp.632-33, paras 25-27) "25. In our judgment, the above proposition does not lay down correct law on the point. It is well settled that credibility of witness has to be tested on the touchstone of truthfulness and trustworthiness. It is quite possible that in a given case, a court of law may not base conviction solely on the evidence of the complainant or a police official but it is not the law that police witnesses should not be relied upon and their evidence cannot be accepted unless it is corroborated in material particulars by other independent evidence. The presumption that every person acts honestly applies as much as in favour of a police official as any other person. No infirmity attaches to the testimony of police officials merely because they belong to police force. There is no rule of law which lays down that no conviction can be recorded on the testimony of police officials even if such evidence is otherwise reliable and trustworthy. The rule of prudence may require more careful scrutiny of their evidence. But, if the Court is convinced that what was stated by a witness has a ring of truth, conviction can be based on such evidence.
[26] It is not necessary to refer to various decisions on the point. We may, however, state that before more than half-a-century, in the leading case of Aher Raja Khima v. State of Saurashtra, AIR 1956 SC 217, Venkatarama Ayyar, J. stated: (AIR p.230,para 40) FIR no. 185/2016 PS Jagatpuri State Vs. Abid & Muzim Rehman Page 22 of 24 `40......The presumption that a person acts honestly applies as much in favour of a police officer as of other persons, and it is not judicial approach to distrust and suspect him without good grounds therefor. Such an attitude could do neither credit to the magistracy nor good to the public. It can only run down the prestige of the police administration". (emphasis supplied) [26] In Tahir v. State (Delhi), (1996) 3 SCC 338, dealing with a similar question, Dr. A.S. Anand, J. (as His Lordship then was) stated:
(SCC p.341, para6) "6.....Where the evidence of the police officials, after careful scrutiny, inspires confidence and is found to be trustworthy and reliable, it can form basis of conviction and the absence of some independent witness of the locality to lend corroboration to their evidence, does not in any way affect the creditworthiness of the prosecution case."
31. After careful perusal of the testimonies rendered in the present case, this court is of the opinion that the testimony of the complainant is cogent and convincing. The testimony of PW-2 has been corroborated in all material particulars with the testimony of PW-3 and police witnesses PW-4 & PW-5. This court has already observed that minor variations in the time of the incident can be overlooked if the prosecution has otherwise brought on record evidence which clearly points towards the guilt of the accused and such evidence does not points to any reasonable doubt.
32. In the present case the unblemished testimony of complainant/PW-2 has established that the both the accused with their common intention on 23.06.2016, caught hold of him and gave beatings to him and voluntarily caused hurt to him by wrongfully restraining him due to which the complainant sustained injuries as clearly reflected in MLC Ex. P1. Accordingly, on the basis of the evidence led on record, it has been established that the accused persons have committed the offences punishable under section 323 IPC and section 341 IPC read with section 34 IPC.
FIR no. 185/2016 PS Jagatpuri State Vs. Abid & Muzim Rehman Page 23 of 24Accordingly, in view of the findings given above, the accused Abid S/o Sh. Zakir and Muzim Rehman S/o Lt. Sh. Feruddin are hereby convicted for the offences punishable u/s 323 and 341 IPC read with s. 34 IPC.
33. Copy of this judgment be given free of cost to the convicts against receiving. Digitally signed by BHARAT BHARAT AGGARWAL AGGARWAL Date: 2022.09.22 17:38:44 -0300 ANNOUNCED IN OPEN COURT (Bharat Aggarwal) Today i.e. 22.09.2022 MM-05/ SHD, Karkardooma Courts/Delhi Present judgment consists of 24 pages and each page bears my initials.
Digitally signed by BHARAT BHARAT AGGARWAL
AGGARWAL Date: 2022.09.22
17:38:51 -0300
(Bharat Aggarwal)
MM-05/ SHD, Karkardooma Courts/Delhi
22.09.2022
FIR no. 185/2016 PS Jagatpuri State Vs. Abid & Muzim Rehman Page 24 of 24