Delhi District Court
State vs . Farukh Hassan Siddiqui on 27 September, 2019
IN THE COURT OF SH. DEVENDER KUMAR GARG,
CHIEF METROPOLITAN MAGISTRATE (NORTHEAST)
KARKARDOOMA COURTS, DELHI.
State vs. Farukh Hassan Siddiqui
FIR No. 290/06
U/s : 323/341/506 IPC
P.S.: Gokal Puri
CIS No : 463027/15
Date of Institution : 26.03.2008
Date of reserving of order : 12.09.2019
Date of pronouncement : 27.09.2019
JUDGMENT
1. Case No. : 463027/15
2. Name of the complainant : Sh.Arif Khan
3. Date of incident : 26.04.2006
4. Name of accused persons : Farukh Hassan Siddiqui
S/o Sh.Abdul Ahmad Siddiqui,
R/o A1/28, Gali No.1,
Nehru Vihar, Karawal Nagar,
Delhi.
5. Offence complaint of. : 323/341/506 of IPC
6. Plea of accused : Pleaded not guilty
7. Final order : Convicted
8. Date of such order : 27.09.2019
FIR No. 290/06, P.S. Gokal Puri Page 1 of 18
BRIEF REASONS FOR SUCH DECISION
1. The brief facts of the case as per the prosecution are that statement of complainant namely Mohd. Arif Khan was recorded on 26.04.2006 wherein he stated that "Farukh Hassan is my brotherin law and he was not at good terms with the complainant. He had also lodged one case against the complainant, which was disposed off. On that day i.e. 26.04.2006, complainant's son and son of Farukh were cycling and quarrel took place between both children and the complainant was not aware about the same. At about 5.30 p.m., while the complainant was returning to his home after offering Namaj and reached near house, Farukh armed with iron chain came there and he wrongfully restrained the complainant and started abusing him. The complainant asked accused Farukh to leave him, to which, accused further restrained him and hit the complainant on his body and head with his iron chain and blood started oozing from head of the complainant and on seeing the blood, accused gave further beatings to the complainant and his attack was dangerous to life. When the complainant made noise, the accused threatened while leaving that he would kill him (complainant) if the complaint is made to the police. After that, police took him to GTB Hospital." Upon this statement, present FIR bearing no. 290/06 dated 26.4.2006 u/s 308 of IPC was registered at PS Gokal Puri.
2. After completion of investigation, charge sheet was filed against the accused for offences punishable u/s 308/341/506 of IPC on FIR No. 290/06, P.S. Gokal Puri Page 2 of 18 26.03.2008 and on the same date, cognizance of the offences was taken by Ld. Predecessor of this Court and accused was summoned. On 14.08.2008, accused appeared before the court and copy of charge sheet was supplied to him in compliance of Section 207 of Cr.P.C. As the charge sheet was also filed under Section 308 of IPC, which is exclusively triable by Ld. Sessions Court, the present matter was committed for trial to Ld. Sessions Court vide order dated 11.12.2008 passed by Ld. Predecessor of this Court.
3. Perusal of file would show that vide order dated 15.09.2009 passed by Sh.B.S. Chumbak, the then Ld. ASJ3, NorthEast District, the present matter was send back to this Court for trial with following observations: "After hearing the arguments on behalf of both the parties and after having been taken into consideration the material placed on record and the opinion given by the doctor in the MLC, I am of the opinion that no primafacie case to frame charge for the offence u/sec. 308 IPC is made out, however, there are sufficient ingredients to frame the charge against the accused for the offence u/sec. 323/341/506 IPC which are triable by the court of Ld. MM, therefore, the file be sent to the concerned Magistrate through Ld. ACMM with the direction to frame the charge u/sec. 323/341/506 IPC against the accused and to try the case as per procedure established by Law."
4. After that, on 02.03.2010, charge for offences under sections 323/341/506 of IPC was framed against the accused, to which, he had FIR No. 290/06, P.S. Gokal Puri Page 3 of 18 pleaded not guilty and claimed trial. The said charge is as follows: "That on 26.04.06 at about 05.30 PM at Gali No.1, Nehru Vihar, Delhi, within the jurisdiction of PS Gokalpuri, you accused forcibly wrongfully restrained the Complainant Mohd. Aarif Khan and as such committed an offence punishable U/s. 341 IPC within my cognizance.
Secondly, on the aforesaid date, time and place you accused caused simple injuries to the Complainant by beating him by iron chain and as such committed an offence punishable u/s 323 IPC within my cognizance. Thirdly, on the aforesaid date, time and place, you accused threatened the complainant that you will kill him, if he made complaint to the police, as such committed an offence punishable U/s 506 IPC within my cognizance."
5. In order to prove its case, the prosecution has examined four witnesses. SI Satya Dev Singh, who was Duty Officer on the relevant date, was examined as PW1, Mohd. Arif, who was the complainant/ injured in the present matter, was examined as PW2, ASI Vijay Singh who shifted the injured to hospital in the PCR, was examined as PW3 and ASI Satpal Singh, who is investigation officer of the present case, was examined as PW4. Thereafter, PE was closed vide order dated 27.07.2019. Following documents were exhibited during prosecution evidence: "Endorsement on the Rukka as Ex.PW1/A, copy of FIR as Ex.PW1/B, DD No.19A dated 26.04.2006 as Ex.PW1/C, statement of complainant as Ex.PW2/A, FIR No. 290/06, P.S. Gokal Puri Page 4 of 18 seizure memo of wearing cloths of the complainant as Ex.PW2/B, arrest memo of the accused as Ex.PW4/A, personal search memo of the accused as Ex.PW4/B, seizure memo of bicycle chain as Ex.PW4/C and case properties i.e. Kurta & cloth as Ex.P1 (colly) and chain as Ex.P2."
6. In crossexamination of PW2 Mohd. Arif conducted on behalf of the accused, copy of one complaint dated 6.5.2006 and copies of postal receipts were put to him and same were exhibited as Ex.PW2/DA (3 pages) and Ex.PW2/DB, respectively.
7. During evidence, accused also admitted MLC No.C1560 dated 26.04.2006 and its result dated 04.05.2006 as Ex.PA vide his statement recorded under Section 281 read with Section 284 Cr.P.C. on 30.11.2017.
8. Thereafter, on 14.08.2019, statements of the accused u/s 281 read with Section 313 of Cr.P.C. was recorded separately wherein all incriminating evidence were put to the accused, which were denied by the accused and he stated that he has been falsely implicated in the present matter due to previous family enmity by the complainant. He also stated that he did not want to lead defence evidence and hence, DE was closed vide order dated 14.08.2019.
9. I have already heard arguments from Ld. APP for State and Sh.Farukh Hasan Siddiqui, Ld. Counsel for accused and perused the material available on record carefully. I have also gone through the written submissions filed on behalf of the accused.
FIR No. 290/06, P.S. Gokal Puri Page 5 of 1810. The relevant provisions of IPC for the purpose of disposal of the present matter are as under :
319. Hurt.--Whoever causes bodily pain, disease or infirmity to any person is said to cause hurt.
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 description for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both.
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 restraint that person.
341. Punishment for wrongful restraint.- Whoever wrongfully restrains any person shall be punished with simple imprisonment for a term which may extend to one month, or with fine which may extend to five hundred rupees, or with both.
503. Criminal intimidation.-- Whoever threatens another with any injury to his person, reputation or property, or to the person or reputation of any one in whom that person is interested, with intent to cause alarm to that person, or to cause that person to do any act which he is not legally bound to do, or to omit to do any act which that person is legally entitled to do, as the means of avoiding execution of such threat, commits criminal intimidation.
FIR No. 290/06, P.S. Gokal Puri Page 6 of 18506. Punishment for criminal intimidation.-- Whoever commits, the offence of criminal intimidation shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both;
If threat be to to cause death or grievous hurt.
--And if the threat be to cause death or grievous hurt, or to cause the destruction of any property by fire, or to cause an offence punishable with death or imprisonment for life, or with imprisonment for a term which may extend to seven years, or to impute, unchastity to a woman, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both.
11. The prosecution has examined Mohd. Arif, who is the complainant/injured in the present matter, as PW2. He has deposed on oath that he know accused Faruq Hassan present in the court that day, who is his brotherinla and there were some disputes between him and accused since long. He further deposed that on 26.04.2006 at about 5.30 p.m. (evening), he was coming from his shop. He again deposed that he was coming after praying the Namaz and when he reached near the house of accused, he stopped him and started abusing him. He further deposed that he holds an iron chain in his hand and he gave him beating with chain on his head and on his body. He further deposed that blood was oozing from his hand and he threatened him (complainant) that he will kill him. He further deposed that he cried and accused while running from the spot stated that if he made a FIR No. 290/06, P.S. Gokal Puri Page 7 of 18 complaint to police, he will kill him. He further deposed that someone called 100 number and he was taken to GTB Hospital and where he was treated. He further deposed that police reached at the hospital and made inquiries from him regarding the incident. He further deposed that the police recorded his statement Ex.PW2/A bearing his signature at point 'A'. He further deposed that after treatment, police took him to the spot and made inquiries from him regarding place of occurrence. He further deposed that police took his wearing cloths i.e. kurta and other cloths stained with blood and seizure memo is Ex.PW2/B bears his signature at point 'A'. PW2 identified the case property i.e. his kurta and cloth as Ex.P1 (colly) as well as the chain as Ex.P2 and he also correctly identified the accused before the court.
12. Ld. Counsel for the accused has contended that in his examination in chief PW2 Mohd. Arif deposed that blood was oozing from his hand, however, in his statement Ex. PW2/A, he did not mention about any injury on his hand. He further contended that in his cross examination, complainant referred his complaint to ACP, DCP and CP Ex.PW2/DA, in which, it was stated that he was beaten by chain of motorcycle, however, in the recovery memo it has been shown as cycle chain. He further contended that there is no mention in the recovery memo about the place from where the said chain was recovered.
13. Perusal of the statement of complainant to police Ex. PW2/A would show in which there is no mention of hand, however, in FIR No. 290/06, P.S. Gokal Puri Page 8 of 18 his examination in chief, it is stated that blood was oozing from his hand and he was threatened to be killed. The above said witness was not confronted on behalf of accused to the above said statement of complainant Ex. PW2/A. In the same way, the contention of Ld. Counsel for the accused that in his complaint Ex. PW2/DA, the complainant used chain of motorcycle and in recovery memo the same has been shown of cycle, witness PW2 was not confronted with the recovery memo and hence, the complainant did not get opportunity to explain the same. Further, the contradiction is of minor nature and that do not affect the case of the prosecution on merits.
14. In "Visveswarn V/s State" 2003 Rajdhani Law Reporter 350 (SC) Hon'ble Supreme Court of India has ruled that in a criminal trial duty of the courts is not to let off criminals on petty discrepancies and minor contradictions. They must show responsibility. Ground realties must be appreciated. Accused be not allowed the benefit of defective investigation. Prosecution lapses cannot be allowed to become escape of criminals. If there is sufficient proof of guilt by border probability, court must ignore technical objections.
15. The Hon'ble Supreme Court of India in matter titled as "Ramesh Harijan Vs. State of UP", 2012 VI AD(S.C) 93, has referred the below mentioned observation in well known judgments which are as follows:
23. A similar view has been reiterated in Appabhai & Anr Vs. State Of Gujrat, AIR 1988 SC696, FIR No. 290/06, P.S. Gokal Puri Page 9 of 18 wherein this Court has cautioned the Courts below not to have undue importance to minor discrepancies which do not shake the basic version of the prosecution case. The Court by calling into aid its vast experience of men and matters in different cases must evaluate the entire material on record by excluding exaggerated version given by any witness for the reason that witnesses now a days go on adding embellishments to their version perhaps for the fear of their testimony being rejected by the Court. However, the Court should not disbelieve the evidence of such witnesses all together if they are otherwise trustworthy.
16. Ld. Counsel for the accused has contended that PW2 has admitted the presence of 2 to 4 persons at the time of incident despite the same, no public person was joined which raises doubt in the story of the prosecution. On the other hand, Ld. APP contended that PW2 admitted in his cross examination that no neighbours were present at the time of incident and he further contended that the public persons generally do not want to join the investigation to avoid themselves from police and court proceedings.
17. It is a fact of common knowledge that public at large show their disinclination to become witnesses. It is also settled law that quality of evidence weighs over the quantity of evidence. The Hon'ble Supreme Court of India in matter titled as "Kashmiri Lal vs. State of Haryana", 2013 VI AD(S.C) 393, has made following observations:
FIR No. 290/06, P.S. Gokal Puri Page 10 of 18"9. As far as first submission is concerned, it is evincible from the evidence on record that the police officials had requested the people present in the 'dhaba'; to be witnesses, but they declined to cooperate and, in fact, did not make themselves available. That apart, there is no absolute command of law that the police officers cannot be cited as witnesses and their testimony should always be treated with suspicion. Ordinarily, the public at large show their disinclination to come forward to become witnesses. If the testimony of the police officer is found to reliable and trustworthy, the court can definitely act upon the same. If in the course of scrutinising the evidence the court finds the evidence of the police officer as unreliable and untrustworthy, the court may disbelieve him but it should not do so solely on the presumption that a witness from the department of police should be viewed with distrust. This is also based on the principle of quality of the evidence weighs over the quantity of evidence. These aspects have been highlighted in State of U.P. v. Anil Singh 1988 Supp SCC 686, State Govt. of NCT of Delhi v. Sunil and Anr. MANU/SC/0735/ 2000: (2001) 1 SCC 652 and Ramjee Rai and Ors. v. State of Bihar MANU/SC/8437/2006 : (2006) 13 SCC
229. Appreciating the evidence on record on the unvell of the aforesaid principles, we do not perceive any acceptable reason to discard the testimony of the official witnesses which is otherwise reliable and absolutely trustworthy."
18. Ld. Counsel for the accused contended that no offence u/s 506 IPC is made out against the accused as no threat to kill was given by the accused. Further, he contended that accused was not carrying FIR No. 290/06, P.S. Gokal Puri Page 11 of 18 any dangerous wepaon at the time of alleged intimidation. He further contended that mere threat is not threat in the eyes of law. Ld. Counsel has relied upon judgments as mentioned in his written submissions.
19. This court does not agree with the contention of Ld. Counsel of accused because the case of the complainant is that he was inflicted injuries by the accused on his head and body parts by chain of cycle. The MLC of complainant Ex.PA would show that "linear pattern bruise on scalp 15 c.m. from left parietal to occipital area, in shape of chain alongwith CLW on occipital of scalp, pattern bruise on back. The above said MLC proves the injury of complainant and thus the contention of Ld. Counsel for the accused that it was merely a threat is without any basis. Complainant had valid reason for getting alarm or intimidated by threat to kill which was given to him. PW2 had clearly deposed that accused gave him beating with chain on his head and body and accused also threatened the complainant that he will kill him.
20. Ld. Counsel for accused has contended that the prosecution failed to examine Investigating Officer in the present matter and hence it has failed to prove investigation. On the other hand, Ld. APP contended that presence of IO could not be secured as he was unable to speak and walk due to paralysis and further contended that the prosecution has proved its investigation properly.
21. Perusal of the file would show that SI Amadul Ishlam was the Investigating Officer of this case who has already retired from the FIR No. 290/06, P.S. Gokal Puri Page 12 of 18 service. Summons were sent to said IO many a times but his presence could not be secured. When process was sent to him, it was stated on his behalf by his family members that he is unable to speak and walk properly due to paralysis. The report was also called from SHO to collect the medical documents and thereafter SHO filed his report that IO SI Amadul Ishlam is unable to walk and move. Copy of MLC documents was also attached with the report of SHO which substantiated the report given by him along with statement of his family members. In present scenario, IO of this case could not be examined but that does not mean that prosecution has failed to prove the investigation on record.
22. This Court is of the view that a case of prejudice likely to be suffered by an accused must depend on the facts of each case and no universal straight jacket formula should be laid down that non examination of IO vitiates criminal trial. For this, the Court would rely upon judgments titled as "Bihari Prasad etc. vs. State of Bihar"
(1996) 2 SCC 317, "Ram Dev vs. State of U.P.", 1995 Supp. (1) SCC 547 and "Ram Gulam Choudhary & Ors. vs. State of Bihar", AIR 2001 SC 2842.
23. The prosecution has examined PW1 SI Satyadev Singh who proved the endorsement on rukka Ex. PW1/A, FIR Ex. PW1/B and copy of DD Ex. PW1/C. PW3 ASI Vijay Singh who was posted at PCR North East Zone deposed that on receipt of call at about 6 pm on FIR No. 290/06, P.S. Gokal Puri Page 13 of 18 26.04.2006, he shifted injured Arif (PW2) to GTB Hospital.
24. The prosecution has examined ASI Satpal as PW4 who had accompanied Investigating Officer. PW4 ASI Satpal deposed that on 26.04.2006, he was posted at PS Gokal Puri as constable and on that day, on receipt of DD No.19A to IO, he alongwith him went to the spot i.e. Gali No.1, Nehru Vihar, Delhi where he came to know that injured had been shifted to hospital. He further deposed that thereafter he alongwtih IO went to GTB Hospital where IO obtained the MLC of injured on which doctor opined U/o Blunt. He further deposed that IO recorded the statement of injured Arif and IO prepared rukka and handed over to him for registration of the FIR. He further deposed that he went to PS and got the FIR registered and came back at the spot and FIR and original rukka handed over to the IO. He further deposed that IO prepared pullanda of the blood stained cloths of the injured and sealed it with the seal of AI and the same was taken into possession vide seizure memo Ex.PW2/B. He further deposed that IO prepared site plan MarkA. He further deposed that thereafter they made search for accused and on identification of Arif, accused was apprehended and he was interrogated and he came to know his name as Farooq Hasan Siddiqui. He correctly identified the accused on that day. He further deposed that the accused was arrested and personally searched vide arrest memo as Ex.PW4/A and personal search memo as Ex.PW4/B. He further deposed that accused got recovered the bicycle chain through which he caused injuries to the complainant and same FIR No. 290/06, P.S. Gokal Puri Page 14 of 18 was taken into possession vide seizure memo Ex.PW4/C and they returned to PS and his statement was recorded.
25. Nothing material could be elicited from cross examination of the persecution witnesses. The deposition of Prosecution witnesses have remained consistent and there is not reason to disbelieve the same.
26. Ld. Counsel for the accused had contended that accused has been falsely implicated as there is previous enmity between the family of the complainant and accused persons and further contended that son of injured/complainant is accused in case u/s 307 IPC in which son of accused is injured/complainant.
27. This court does not agree with the contention of Ld. Counsel for the accused as each case is required to be decided on its facts. The deposition of the complainant is supported by medical evidence and thus even if there is previous enmity then it does not mean that present incident did not take place. The complainant/injured PW2 has clearly deposed that on 26.04.2006 at about 5.30 pm, he was stopped by the accused and accused gave beatings to him with chain. He had also told that the accused threatened him to kill. The wearing clothes of complainant i.e. kurta and other clothes stained with blood were produced in the court and correctly identified by the complainant is Ex. PW1. He had also identified cycle chain as Ex. PW2 by which injuries were inflicted upon him by the accused.
FIR No. 290/06, P.S. Gokal Puri Page 15 of 1829. Now it is settled proposition of criminal law that the prosecution has to prove its case on the judicial file beyond reasonable doubts and such doubts in the prosecution story entitle the accused to acquittal. In a case reported as "Rama Kant Rai V/s Madan Rai"
2003 (8) Scale 243 it has been ruled that a person has no doubt, a profound right not be convicted of an offence which is not established by the evidential standard of proof beyond reasonable doubt, though this standard is a higher standard, there is however, no absolute standard. What degree of probability amounts to proof is an exercise particular to each case. Doubts would be called reasonable if they are free from a zest for abstract speculation. Law cannot afford any favorites other than truth. To constitute reasonable doubt, it must be free from an over emotional response. Doubts must be actual and substantial doubts as to the guilt of the accused persons arising from the evidence or from the lack of it, as opposed to mere vague apprehensions. A reasonable doubt is not a imaginary, trivial or a merely possible; but a fair doubt based upon reason and common sense. It must grow out of the evidence in the case. The concepts of probability, and the degrees of it, cannot obviously, be expressed in terms of units to be mathematically enumerated as to how many of such units constitute proof beyond reasonable doubts. There is a unmistakable subjective element in the evaluation of the degrees of probability and the quantum of proof. Forensic probability must, in the last analyze, rest on a robust common sense and, ultimately on the FIR No. 290/06, P.S. Gokal Puri Page 16 of 18 trained intuition of judge.
30. While the protection given by the criminal process to the accused persons is not to be eroded, at the same time, uniformed legitimization of trivialities would make a mockery of administration of criminal justice. In "Succha Singh and Anr. V/s State of Punjab"
JT 2003 (6) S.C 248 it has been ruled that exaggerate devotion to the rule of benefit of doubt must not nurture fanciful doubts or lingering suspicion. Justice cannot be made sterile on the plea that it is better to let hundred guilty escape than punish an innocent. Letting guilty escape is not doing justice according to law. ("Gurbachan Singh V/s Satpal Singh and other" JT 1989 (4) SC38; AIR 1990 SC 209. Prosecution is not required to meet any and every hypothesis put forward by the accused. (see: "State of UP v/s Ashok Kumar Srivastav" JT 1992 (1) SC 340; 340 AIR 1992 SC 840). A reasonable doubt is not an imaginary, trivial or merely possible doubt, but a fair doubt based upon reason and common sense. It is must grow out of the evidence in the case. If a case is proved perfectly, it is argued that it is artificial; if a case has some flaws inevitable because human beings are prone to err, it is argued that it is too imperfect. One wonders whether if the meticulous hypersensitivity eliminate a rare innocent from being punished, many guilty persons must be allowed to escape. Proof beyond reasonable doubt is a guideline, not a fetish. (see: "Inder Singh and Anr. V/s State of Delhi Administration"FIR No. 290/06, P.S. Gokal Puri Page 17 of 18
AIR 1978 SC 1091. A judge does not preside over a criminal trial, merely to see that no innocent man is punished. Judge also preside to see that a guilty man does not escape. Both are his public duties," as per Viscount Simon in Stirland v/s Director of Public Prosecution, 1994 AC (PC), 315 quoted in "State of UP V/s Anil Singh" JT, 1988 (3) SC 491; AI 1988 SC 1998.
31. The deposition of witnesses of the prosecution has remained consistent and there is no reason to disbelieve the same and deposition of witnesses of prosecution has been substantiated by the material collected during the investigation.
32. Keeping in view the deposition of prosecution witnesses, and other material available on record, this court is of the view that the prosecution has proved its case beyond reasonable doubt and hence, accused namely Farukh Hasan Siddiqui is convicted for offences U/s 323/341/506 of IPC. Digitally signed Devender by Devender Kumar Garg Announced in open court Kumar Date:
Garg 2019.09.30
on 27.09.2019 10:33:58 +0530
(DEVENDER KUMAR GARG)
CMM (NORTHEAST DISTT.)
KKD COURTS, DELHI.
FIR No. 290/06, P.S. Gokal Puri Page 18 of 18