Delhi District Court
State vs . Sikander Etc. on 23 September, 2015
IN THE COURT OF SH. GAJENDER SINGH NAGAR, MM-04, WEST,
TIS HAZARI COURT,DELHI
STATE Vs. SIKANDER ETC.
FIR No. 371/2003
PS: MOTI NAGAR
U/S: 323/324/341/34 IPC
Sr. no. of the case : 328/2/10
Unique Case ID No. : 02401R0985172003
Date of commission of offence : 11.08.2003
Date of institution of the case : 18.10.2003
Name of the complainant : Ms. Kausar Jamal
Name and address of accused : 1) Sikander
S/o Sh. Gulam Shabir
R/o Gali No.2, H.No.416,
Zafarabad, Silampur, Delhi.
(Since PO)
2) Nadeem
S/o Sh. Gulam Shabir
R/o Gali No.2, H.No.416,
Zafarabad, Silampur, Delhi.
3) Hasrat
S/o Sh. Gulam Shabir
R/o Gali No.2, H.No.416,
Zafarabad, Silampur, Delhi.
Offence complained of or proved : U/s 323/324/341/34 IPC
Plea of the accused : Pleaded not guilty
Final Order : Acquitted
Date on which reserved for judgment: 08.09.2015
Date of judgment : 23.09.2015
**********************************************************************************************************************
JUDGMENT
1. The story of the prosecution in brief is that, accused Sikander (since PO) is the husband of the complainant/victim Smt. Kausar FIR No.371/2003, PS Moti Nagar Page 1/11 Jamal. Accused Nadeem and Hasrat are the brothers of accused Sikander. On 11.08.2003 both the parties were having a meeting at CAW Cell, Nanak Pura and after that meeting at about 05:00 PM accused Nadeem and Hasrat Ali alongwith co-accused Sikander (since PO) stopped the complainant Smt. Kausar Jamal and caused simple injuries by means of sharp object while she was going to her house and also caused simple hurt to Gulam Hussain. Accordingly, after investigation charge sheet was filed in the present case.
2. During the course of trial accused Sikander declared Proclaimed Offender. The prima facie case U/s 323/324/341/34 IPC was found to be made out against the accused persons. Accordingly, charge for the aforesaid offence framed against accused Nadeem and Hasrat Ali. The accusation was read over and explained to the accused persons to which they pleaded not guilty and claimed trial.
MATERIAL EVIDENCE IN BRIEF:
3. The prosecution got examined six witnesses in support of its case, which are as follows:-
4. PW1 Ms. Kausar Jamal stated that prior to 2004 she was residing at SBM Colony, Moti Nagar. It is stated by her that she does not remember the date of incident but it was in the month of August, 2003, she was having a dispute with her husband Sikander (since PO). It is stated that accused Nadeem and Hasrat were brothers of her husband Sikander. It is stated that her complaint was pending consideration before CAW Cell, Nanakpura. It is stated that the police officials at CAW Cell, Nanakpura had advised them to settle the matter with the help of Panchayat as heated arguments had taken place while the matter was being heard at Women Cell. It is stated that while she and her father were returning home and had reached in SBM Colony all the accused persons along with their father Mr. Gulam Sabir and their brother-in-law Mr. Akram beside them there were 3-4 other persons whom she does not identify. It is stated by her that accused Sikander (since PO) came from back side and pulled her hair and pushed her FIR No.371/2003, PS Moti Nagar Page 2/11 towards wall due to which her hand struck against the wall and she suffered injuries. It is further stated that accused Nadeem hit her with some sharp object which struck her on back side. It is stated that one of their colony resident helped her and called the police. It is stated by her that except accused Nadeem and Sikander no one had hit her. It is stated by her that the incident had taken place at 05.15 PM and their co-colony resident Mr. Rajender had called the police. It is stated that police had taken her to DDU hospital. Her statement was recorded at the police station which is Ex. PW1/A. With the permission of the court this witness was cross examined by Ld. APP for the state. In her cross examination by Ld. APP for the state it is accepted by her that incident had taken place on 11.08.2003 at about 05.15 PM when she and her father reached the gate of SBM Colony, all the three accused persons namely Sikander (since PO), Nadeem and Hasrat had wrongfully restrained her. She denied the suggestion that her husband Sikander (since PO) had hit her with some sharp object on her back. She was confronted with portion X to X1 of her statement Ex. PW1/A where it is so recorded. It is voluntarily stated by her that she was attacked from back side that is why she is not sure as to who among the accused persons had hit her. It is accepted by her that her statement was recorded at the DDU Hospital. It is accepted by her that due to some other engagement of IO she could not wait further in the hospital therefore, she had visited police station on the same day and signed the statement which IO had recorded at the police station. It is stated by her that all the three accused persons along with Mr. Akram and Gulam Sabir and some unknown persons had caused criminal force against them. It is stated by her that she stated this fact to the IO in her statement. She was confronted with her statement where it is not so recorded. In her cross examination on behalf of defence it is stated by her that she cannot tell whether the police have recorded the statement of Mr. Rajender or any other colony resident in her presence. It is stated by her that at the time of incident no public person from the colony was present there. She denied the suggestion that she has falsely FIR No.371/2003, PS Moti Nagar Page 3/11 implicated the accused Hasrat and Nadeem in the present case.
5. PW2 Sh. Deshraj, Medical Record Clerk from DDU Hospital exhibited on record MLC No.15654 dt.11.08.2003 in respect of victim Smt. Kausar Jamal as Ex.PW2/A bearing signature of Dr. Jayant Pranav at point A.
6. PW3 HC Raj Singh was the Duty Officer on 11.08.2003, who exhibited on record copy of FIR as Ex.PW3/A (OSR) and endorsement on the rukka as Ex.PW3/B. During cross-examination, this witness accepted that at the time of recording of the FIR, the complainant was not present in DO room.
7. PW4 Ct. Naresh Kumar stated that on 11.08.2003 he was posted at PS Moti Nagar as Constable. It is stated that on that day he alongwith ASI Ramphal was on emergency duty from 08:00 AM to 08:00 PM. At about 05:00 to 06:00 PM, one call was received vide DD No.15A at PS Moti Nagar regarding quarrel at SBM Colony, Moti Nagar. Thereafter, he alongwith IO reached at the spot but no one was found there. IO asked some public persons regarding the said incident and the said public persons disclosed that the incident was occurred but all the persons involved in that had left the spot. Thereafter they reached at D-64, SBM Colony and received information that the injured had already been taken to DDU hospital through PCR Van. Thereafter, they reached at DDU hospital and met injured Kausar Jamal. IO obtained MLC of injured Kausar Jamal. IO recorded the statement of injured Kausar Jamal Ex.PW1/A. It is stated by him that IO had not taken signatures of the victim as IO did not have some clarity on the MLC. It is stated that IO visited emergency doctor's room for clarification on the MLC. Thereafter, this witness alongwith IO once again visited the place where the injured was present earlier but she was not there and on inquiry it was found that she had left the hospital. Thereafter, he alongwith IO returned to the PS and found that the injured was present at the PS Moti Nagar alongwith her father. It is stated that the statement Ex.PW1/A was signed by the injured in the PS in his presence. IO prepared rukka Ex.PW4/A and himself gave the same to FIR No.371/2003, PS Moti Nagar Page 4/11 the DO at PS for registration of FIR. Duty officer handed over to this witness copy of FIR and original rukka. IO recorded supplementary statement of injured Kasuar in the PS. It is stated that he alongwith IO/ASI Ramphal and father of injured reached at the spot, IO prepared site plan in his presence, which is Mark 'S'. Thereafter they all visited Jafrabad area for investigation of the present case but nothing was found there. It is stated that they all returned to the PS. IO recorded his statement. During cross examination, it is stated by this witness that IO asked some public persons regarding the incident on the spot and they disclosed that the incident was occurred but all the persons involved had left the spot. It is stated that IO asked public persons to join the investigation but none was agreed and left the place without disclosing their names and addresses. It is stated that they reached at about 06/07:00PM at DDU Hospital but he could not recall the exact time. He could not recall the time till when they remained in the hospital but the duration was more. He could not recall the time when they reached at the PS. He could not recall the time when they reached at Jafrabad area. He could not recall the time when the site plan was prepared, however, it is stated by him that all the proceedings were done in continuity after receiving the DD entry no. 15A. He denied the suggestion that all these proceedings were done at PS Moti Nagar that is why he is not disclosing the time. He denied the suggestion that he did not join the investigation as stated by him. He could not recall when his statement was recorded by the IO, however, it is stated by him that it was recorded in continuity of the investigation after the time when they returned from Jafrabad area.
8. PW5 SI Ram Phal also deposed on the same lines as PW4 Ct.
Naresh Kumar. Apart from that this witness prepared rukka Ex.PW5/A, and site plan Ex.PW5/B. He arrested accused Hasrat, Sikander and Nadeem vide arrest memo Ex.PW5/B, PW5/C & PW5/D and conducted their personal search vide memo Ex.PW5/E, PW5/F & PW5/G. During cross-examination, it is stated by him that the call was received at about 05:30 PM. It is stated by him that they reached at the spot after FIR No.371/2003, PS Moti Nagar Page 5/11 15 minutes. It is stated that public persons had informed him that PCR van had taken the injured to the hospital. It is stated that he did not inquire to know the name of that public person. It is stated that he reached at DDU Hospital within 30 minutes from the spot and remained there for about 25 minutes. It is stated that the rukka was prepared at the PS and handed over to DO at about 09:00 PM. It is stated that he prepared the site plan at about 09:30 PM. It is stated that he remained there for about 15 minutes. It is stated that he did not enquire any public persons at the time of preparing the site plan as nobody was there. It is accepted by him that accused Hasrat and Nadeem are permanent resident of Amroha, UP. He denied the suggestion that both the accused persons had come to the PS and they have been falsely implicated in the present case. He denied the suggestion that the accused persons had been falsely implicated at the instance of complainant Kausar Jamal.
9. PW6 HC Kamal Singh stated that on 14.08.2003 he was posted at PS Moti Nagar as Constable. On that day he alongwith ASI Ram Phal and Gulam Hussain went to Jafrabad Seelampur in search of accused Nadim, Hasrat and Sikander. It is stated by him that all the accused persons i.e. Nadim, Hazrat present in the Court and Sikander (since PO) were arrested from Jafrabad vide arrest memos Ex.PW5/B, PW5/C and PW5/D and their personal search were conducted vide memos Ex.PW5/E, PW5/F and PW5/G. It is stated that IO recorded his statement. Thereafter, they came to the PS alongwith the accused persons.
10. No other witness was left to be examined, hence PE was closed.
THE DEFENCE :
11. Statement of both the accused persons U/s 313 Cr.P.C. was recorded separately, in which all the incriminating evidences were put to them. The accused persons controverted and denied the allegations levelled against them. Accused persons stated that they have been falsely implicated in the present case due to some family dispute as FIR No.371/2003, PS Moti Nagar Page 6/11 victim Kausar Jamal was their cousin and sister-in-law being wife of their brother Sikander (since PO). It is stated by them that the other victim is their uncle who was father of victim Kausar Jamal. Accused persons opted not to lead defence evidence.
THE ARGUMENTS:
12. Ld. APP for state has argued that witnesses have supported the prosecution and their testimony have remained unrebutted. That on a combined reading of testimonies of prosecution witnesses, offence under section U/s 323/324/341 read with Section 34 IPC are proved beyond reasonable doubt.
13. On the other hand, Ld. Counsel for accused persons has stated that there is no legally sustainable evidence against the accused persons. It is argued that the complainant herself became hostile and was not stating the true facts that is why she was declared hostile and was cross-examined by Ld. APP for State. It is stated that alleged other victim namely Sh. Gulam Hussain was not examined before Court, even his MLC is not on record. It is argued that due to personal enmity, complainant is taking shifting stand just to implicate the accused persons in criminal litigation. It is prayed that accused persons may be acquitted in the present case. Ld. counsel placed reliance on a case decided by Hon'ble Supreme Court of India titled as Jagir Singh Vs. State AIR 1975 SC 1400, wherein it was held that when a prosecution witness is cross-examined on behalf of prosecution itself then the testimony of that witness is altogether discredited.
THE FINDINGS:
Offence U/s 323/324/341/34 IPC:
14. Arguments adduced by Ld. APP and Defence Counsel have been heard and evidence and documents on record are carefully perused.
15. In order to bring home guilt of the accused persons for the offence under Section 323/34 IPC, it has to be proved that all the accused persons in furtherance of their common intention gave beatings to the FIR No.371/2003, PS Moti Nagar Page 7/11 victim causing simple injuries to victim Gulam Hussain, further to prove the offence U/s 324/34 IPC, it has to be proved that the accused persons inflicted simple sharp injury on the person of victim Kausar Jamal. Further in order to bring home guilt for commission of offence under Section 341 IPC, the prosecution was required to prove following ingredients :
(i). Voluntary obstruction of a person.
(ii).The obstruction must be such as to prevent that person from proceedings in any direction which he has a right to proceed.
16. PW1 Kausar Jamal, complainant/victim is the most material witness of the present case. It is stated by her that she was obstructed and beaten by the accused persons in furtherance of their common intention and thereby she received simple sharp injuries. However, testimony of this witness cannot be accepted as gospel truth due to following reasons:-
a). There are material contradictions/improvements in the testimony of this witness as it was stated by her in her complaint to the police that all the three accused persons restrained her and started beating her and her husband i.e. accused Sikander (since PO) inflicted some sharp edged weapon on her back. The same facts were stated in the statement U/s 161 Cr.P.C of another victim namely Gulam Hussain, however, statement of Late Sh. Gulam Hussain is of no use as this witness died before deposing in the Court. Thus it was the categorical case of the police that accused Sikander (since PO) had inflicted sharp injury on the back of the victim Kausar Jamal. On the other hand in her testimony before Court, it is stated by her that accused Nadeem hit her on back with a sharp object. In her cross-examination by Ld. APP for State, it is stated by her that the injury by sharp object was inflicted on her from back side, thus she is not sure who among the accused persons had hit her. This contradiction in the testimony of the witness makes her unreliable. Apparently, being a layman victim is not aware about the concept of vicarious liability as contained in Section 34 of Indian Penal Code, that is why she stated that accused Nadeem FIR No.371/2003, PS Moti Nagar Page 8/11 inflicted injury on her with a sharp object as accused Sikander was declared proclaimed offender and was not available before Court when the statement of this witness was recorded. This change in version shows that victim is desperate to ensure conviction of the accused persons present before the Court even at the cost of speaking lie.
b). The victim is deposing falsely even about the injuries sustained by her as it is stated by her that her husband Sikander (since PO) struck her head against the wall due to which she suffered injury. However, from the MLC of the victim, it is clear that she suffered no head injuries.
She only suffered one injury on the back and two abrasions on the forearm. Further there is no MLC on record regarding injury if any sustained by victim Gulam Hussain.
c). In her examination-in-chief, PW1 Kausar Jamal nowhere stated that she was restrained by the accused persons, she simply stated that accused Sikander (since PO) pulled her hairs and pushed her towards a wall. It is further stated that accused Nadeem hit her with a sharp object. But in her cross-examination, she again took a shifting stand and stated that all the three accused persons had wrongfully restrained her, however, she again took a shifting stand in her cross-examination and stated that all the three accused persons alongwith Mr. Akram, Gulam Sabir and some unknown persons accompanying them had restrained her and used criminal force. Thus, victim/complainant is taking shifting stands on each and every point.
d). Accused persons have taken the defence in their statement U/s 313 Cr.P.C that they have been falsely implicated in the present case as alleged victim/complainant Smt. Kausar Jamal, who was their sister-in- law being wife of their brother Sikander (since PO) was having sour relations with the accused persons and her husband. The defence of the accused persons appears to be probable from the conduct of the victim PW1 Kausar Jamal as in her statement on the basis of which FIR was registered she implicated only three accused i.e. present two accused persons namely Nadeem, Hasrat and accused Sikander (since FIR No.371/2003, PS Moti Nagar Page 9/11 PO). However, in her examination-in-chief before Court, she stated that only accused Nadeem and Sikander (since PO) had hit her. However, again in her cross-examination by Ld. APP for State, it is stated by her that all the three accused persons alongwith Mr. Akram (brother-in-law of the accused persons), Gulam Sabir (father of the accused persons) and some unknown persons accompanying them had used criminal force against her. These shifting stands taken by the complainant/victim shows that she is not deposing truthful and her intention is only to implicate more and more persons from the family of the accused persons i.e. her in-laws.
17. All these contradictions show that the victim/complainant PW1 Kausar Jamal is not a reliable witness, there is no other evidence on record to prove the case of the prosecution. There is no independent public witness of the incident despite the fact that public persons were present there. In such circumstances, the accused persons cannot be convicted only on sole testimony of PW Kausar Jamal. The defence of the accused persons that due to some personal enmity, victim is making false allegations against them appears to be probable. Had the story of the victim was truthful, she must be telling the similar version at every place. Since, the story is a false one that is why the same is having no legs and every time victim is telling a different version. The defence of the accused persons appears to be probable, it is probable that victim might have been hit by her husband Sikander (since PO), however, to take her revenge, she falsely implicated the present accused persons, who were brothers of her husband. It is a settled proposition of criminal law that prosecution is supposed to prove its case on judicial file beyond reasonable doubt by leading reliable, cogent and convincing evidence. Further it is a settled proposition of criminal law that in order to prove its case on judicial file, prosecution is supposed to stand on its own legs and it cannot derive any benefit whatsoever from the weaknesses, if any, of the defence of the accused. Further it is a settled proposition of criminal law that burden of proof of FIR No.371/2003, PS Moti Nagar Page 10/11 the version of the prosecution in a criminal trial throughout the trial is on the prosecution and it never shifts on to the accused. Also it is a settled proposition of criminal law that accused is entitled to the benefit of reasonable doubt in the prosecution story and such reasonable doubt entitles the accused to acquittal.
18. In view of the above stated facts and discussion this Court is of the considered opinion that prosecution has failed to prove guilt of accused persons beyond reasonable doubt as testimony of PW1 victim/ complainant Kausar Jamal appears to be motivated and untrustworthy. Accordingly it is a fit case in which benefit of doubt must be given to accused persons, which is accordingly given. Hence, accused Nadeem and Hasrat are hereby acquitted from the charges of offences punishable U/s 323/324/341/34 of IPC.
19. Accused has furnished the fresh bail/surety bond in terms of Section 437-A Cr.P.C. The same have been accepted. File be consigned to Record Room after due compliance and be revived as and when accused Sikander, who has been declared PO, is arrested/ appears before the Court.
ANNOUNCED IN THE OPEN (GAJENDER SINGH NAGAR) COURT ON 23.09.2015 MM-04 (WEST)/DELHI
Containing 11 pages all signed by the presiding officer.
(GAJENDER SINGH NAGAR) MM-04 (WEST)/DELHI FIR No.371/2003, PS Moti Nagar Page 11/11