Delhi District Court
Fir No. 61/2011 State vs . Riyazuddin Etc. 1/37 on 5 March, 2022
IN THE COURT OF SH. DEVENDER KUMAR, ADDITIONAL SESSIONS JUDGE-02 (NE), KARKARDOOMA COURTS, DELHI CNR No. DLNE01-000042-2011 SC No. 44338/2015 FIR No. 61/2011 PS: Jafrabad U/s 308/323/341/506/34 IPC State Versus 1. Riyazuddin S/o Sh. Aminuddin R/o House No. 6/2, Gurdwara Mohalla Puri Gali, Maujpur, Delhi 2. Mainuddin S/o Sh. Aminuddin R/o House No. 6/2, Gurdwara Mohalla Puri Gali, Maujpur, Delhi 3. Aminuddin S/o Sh. Bashir Khan R/o House No. 6/2, Gurdwara Mohalla Puri Gali, Maujpur, Delhi 4. Ikram S/o Sh. Bachchu Khan R/o House No. 1325, Gali No. 46, Jafrabad, Delhi. FIR No. 61/2011 State vs. Riyazuddin etc. 1/37 5. Asgar Ali S/o Sh. Khalil Ahmad R/o House No. 475, Gali No. 7, New Mustafabad, Delhi. Date of Institution / Committal : 22.07.2011 Date of Arguments : 15.02.2022 Date of Pronouncement : 05.03.2022 JUDGMENT:
1. Prosecution case: It is the case of the prosecution that on 28.02.2011, a DD No. 39B was received by PS Jafrabad regarding a quarrel at main 66 Futa Road, near Street No. 22, Jafrabad, where 4-5 persons were quarrelling. It is further alleged that some persons fled away from the spot but one boy namely Riyazuddin was apprehended and preventive action u/s 107/151 CrPC was taken against him. During investigation, it was revealed that injured had already been removed to GTB Hospital. ASI with Ct. Amit reached GTB Hospital and seized MLCs of injured Hazi Umar and Nanua. IO recorded the statement of Hazi Umar who was fit to make statement and got lodged this FIR against the accused persons and investigated the matter. All the accused persons were arrested during investigation and charge-sheeted u/s 308/323/341/325/506/34 IPC.
2. This charge-sheet committed to this court after compliance of Section 207 Cr.P.C.
FIR No. 61/2011 State vs. Riyazuddin etc. 2/37
3. Charges u/s 341/308/506/34 IPC were framed against all accused vide order dated 11.08.2011. All the accused persons pleaded not guilty and claimed trial.
4. To prove the charges, prosecution has examined PW1 Hazi Umar, PW2 Nanua, PW3 HC Narender Kumar, PW4 Ct. Mehar Singh, PW5 W/Ct. Sudha, PW6 Ct. Rajesh Kumar, PW7 Dr. Naeem Shamsi, PW8 Dr. Raj Kumar Raj, PW9 Dr. Anjay Kumar, PW10 HC Omveer, PW11 Ct. Joginder, PW12 Dr. Pratima, PW13 ASI Krishan Pal, PW14 Dr. Shariq-ur-Rehman and PW15 Dr. Rajendra Kumar and closed PE.
5. After PE, entire incriminating evidence was explained to all accused persons under Section 313 CrPC and their statements were recorded.
6. All accused have examined Defence Witnesses namely DW1 Hamid Raza, DW2 Mohd. Ismile, DW3 Mirza Zubair, DW4 Danish Ali, DW5 Riyasuddin, DW6 Moinuddin, DW7 Ikram Ali, DW8 Aminuddin and closed DE.
7. To prove the case, prosecution has examined many witnesses including family members of deceased. The evidence led by the prosecution is as under: -
7.1. PW1 Hazi Umar is the injured as well as complainant and has deposed that the marriage of his daughter Shabana was solemnized with accused Riyazuddin on 28.11.2010, according to Muslim Rites and Customs. It is further deposed that in-laws of his daughter started harassing her for dowry demands soon after her marriage and they started threating to kill on FIR No. 61/2011 State vs. Riyazuddin etc. 3/37 telephone. It is further deposed that he refused to bow down on their dowry demands as well as threats and, on 23 or 24.02.2011, he lodged a complaint with PS Jafrabad against the accused persons. It is further deposed that he was summoned to PS on his complaint and on 28.02.2011 at about 3.30 pm, he along with his brother Nanua went to PS Jafrabad to attend a police inquiry regarding his complaint. After attending inquiry, he along with his brother reached on the road after coming out of police station, where accused persons namely Riyazuddin, Aminuddin, Mainuddin, Ikram and Asgar Ali, armed with iron rod (saria) and dandas stopped and assaulted them. It is further deposed that accused Riyazuddin assaulted him on his head by saria, whereas accused Aminuddin assaulted on his hip by danda, accused Mainuddin assaulted his brother Nanua by danda. It is further deposed that accused Ikram caught his brother hold and assaulted with fist blows. Accused Asgar Ali caught him hold and also assaulted with fist blows. It is further deposed that accused Riyazuddin also threatened by stating that "Asgar tu hat ja, ise jaan se hi mar deta hu". He raised alarm and Police officials reached there, but his brother Nanua became unconscious. It is further deposed that accused Asgar Ali flipped a knife, but all accused fled away on seeing police while extending threats that they will not leave them alive. It is further deposed that both of them started bleeding in their heads and were removed to GTB Hospital, where they were applied 7 and 9 stitches respectively on their heads. It is further deposed that four teeth of his brother Nanua were also broken during this incident. Police recorded his statement Ex.PW1/A and doctors also prepared his MLC which is Ex.PW1/B. It is further deposed that his brother and he produced their blood-stained cloths before the Court of Ld. District Judge on 17/05/2011 and IO seized the same vide seizure memo Ex.PW1/C. He also sent a complaint to Commissioner of Police which is Ex.PW1/D. He FIR No. 61/2011 State vs. Riyazuddin etc. 4/37 has identified the blood-stained shirt worn by his brother at the time of this incident as Ex. PW1/P-1, whereas his blood stained white kurta, black color jacket and hanky a sEx.PW1/P-2 (Colly). He has further identified iron rod used by Riyazuddin during assault on him as Ex.PW1/P-3, another iron rod (should be wooden log) used by accused Aminuddin to cause head injury to his brother Nanua as Ex.PW1/P-4 and their photographs clicked soon after sustaining injuries are Ex.PW1/E and Ex.PW1/F. 7.1.1. During cross examination, he has admitted that this incident took place just outside the police station and no police official was present at the gate of the Police Station at that time, however police officials were reached there when he raised alarm. Police reached the spot within five minutes, but he was not aware as to whether accused persons were apprehended at the spot or not, as he became unconscious. He was also not aware by which vehicle he was removed to GTB hospital, as he regained his consciousness in hospital, where his statement was also recorded by the police. It is further deposed that he was called by IO to PS to join investigation on 01.03.2011 and he went there alone. It is admitted that no public person was asked to join investigation and even iron rod and danda were not seized in his presence, but those weapons were used during this incident. It is further admitted that FIR under section 498A IPC was registered at Bulandshahar, UP against the accused. It is further admitted that photographs Ex.PW1/E to Ex.PW1/F are not containing date.
7.2. PW2 Nanua has corroborated the testimony of PW1 and has deposed that this incident took place on 28th day, but he did not remember the month, however it was at about 3.30 pm when he along with his brother Hazi Umar FIR No. 61/2011 State vs. Riyazuddin etc. 5/37 went to PS. It is further deposed that accused persons extended threats to kill his brother Hazi Umar, due to he had made a complaint with PS Jafrabad and SHO concerned called him to PS. It is further deposed that he along with his brother Hazi Umar came out of PS and just reached near the road when all the accused persons assaulted them. It is further argued that accused Riyazuddin assaulted him with an iron rod and danda on his head, whereas accused Mainuddin grappled him. He started bleeding and became unconscious. He sustained injuries on his head and right leg and also lost his four teeth during this assault by the accused persons. Doctors prepared his MLC which is Ex.PW2/B and police also seized his bloodstained clothes vide seizure memo Ex.PW2/A. His brother Hazi Umar was also assaulted by accused Riyazuddin with iron rod which is Ex.PW1/P3 and Aminuddin assaulted him with wooden log which is Ex.PW1/P4. He has identified his bloodstained cloths as Ex.
PW1/P1.
7.2.1. During cross examination by Ld. Addl. PP for State, he has admitted that accused Riyazuddin, Aminuddin, Mainuddin and his relatives Ikram and Asgar Ali restrained them, whereas accused Mainuddin and Riyazuddin caused murderous assault on him. It is further admitted that accused Riyazuddin assaulted him with an iron rod on the head of his brother, whereas accused Mainuddin assaulted him with danda and accused Asgar caught him hold and also assaulted with fist and kick blows. It is further admitted that accused Ikram caught his brother hold and assaulted. It is further deposed that police officials saved them.
7.2.2. During cross examination by accused persons, he has deposed that he came to Delhi on 27.02.2011 by a train, but has no ticket to this effect. It is FIR No. 61/2011 State vs. Riyazuddin etc. 6/37 further deposed that he went to PS by a motorcycle and his brother drove it, but he did not remember its number. It is admitted that his brother Hazi Umar did not write or give any police complaint in his presence, but distance between his brother's house and PS was about two kilometers. He did not meet SHO, PS Jafrabad or any other police official, but they came out of PS at about 3.30 PM and just covered few steps when were assaulted. He became unconscious and was not aware as to who removed him to GTB Hospital, but he was discharged from hospital on next day. His photographs were clicked in the hospital, but Police seized his bloodstained clothes on the next day, whereas bloodstained clothes of his brother were seized on 01.03.2011.
7.3. PW3 HC Narender Kumar was posted as DO and has proved FIR Ex.PW3/A which was lodged on the basis of rukka Ex.PW3/B, sent by ASI Krishan Pal through Ct. Mehar Singh.
7.4. PW4 Ct. Mehar Singh joined the investigation of DD No. 39B with ASI Krishan Pal and visited the spot of incident but came to know that injured had already been removed to GTB Hospital. They went to GTB Hospital where IO collected MLCs of both injured. Injured Hazi Umar was fit for statement and IO recorded his statement and prepared rukka and handed it over to him. He got registered FIR from PS. IO also prepared site plan in his presence. Again, on 17.05.2011, he witnessed the seizure of bloodstained clothes of injured Hazi Umar and Nanua vide seizure memos Ex. PW1/C and Ex. PW2/A. 7.4.1. During cross examination, he has admitted that he did not read the contents of DD NO.39B. He was further not aware about any specific land FIR No. 61/2011 State vs. Riyazuddin etc. 7/37 mark of the spot of incident except that it was at Street No.22, 66 Foot Road, Main Jafrabad. It is further deposed that on 17.05.2011, complaint handed over his clothes at his home, but none of his family members was asked to sign the seizure memo and even neighbors were also not asked to join investigation. It is further deposed that the blood-stained clothes were seized after two months of this incident. He did not know the address of witness Nanua who reached the house of Hazi Umar on 17.05.2011 and handed over his clothes to IO, who seized them vide seizure memo Ex. PW2/A, but Hazi Umar was not cited witness to the said seizure memo.
7.5. PW5 W/Ct Sudha was posted with PCR, East District and on 28.02.2011, she recorded the contents of DD No.39B pertaining to a brawl between the husband and wife. DD entry is Ex. PW5/A. 7.6. PW6 Ct. Rajesh Kumar joined the investigation on 26.04.2011 at about 10.00 am. He along with IO and secret informer reached at House No. 6/2, Gurudwara Mohalla, Delhi wherefrom accused Riyazuddin and Mainuddin were arrested vide arrest and personal search memos Ex.PW6/A to Ex. PW6/D. Accused Mainuddin got recovered one wooden log from the spot behind a door in his house and the same was seized vide seizure memo Ex.PW6/E. Accused Riyazuddin also got recovered an iron rod from his house which was also seized vide seizure memo Ex.PW6/F. Both accused also made their disclosure statements Ex. PW6/G and Ex. PW6/H. 7.6.1. During cross examination, he has admitted that he did not lodge any DD entry regarding the joining of investigation of this case and even was also not aware about the ownership of the House No.6/1, Gurudwara Mohalla. He FIR No. 61/2011 State vs. Riyazuddin etc. 8/37 has admitted that iron rod and wooden log, which are Ex. PW1/P3 and Ex.PW1/P4, are easily available in open market. It is further admitted that at the time of putting his signatures on papers, IO had already signed the same. They remained at the spot for about 1 ½ -2 hours. IO measured the recovered articles.
7.7. PW7 Dr. Naeem Shamsi has proved MLC of injured Nanua as Ex. PW1/A. On the same day, at about 4.30 PM, another injured namely Hazi Umar was also brought by Mohd. Zafar with alleged history of assault and he also prepared his MLC which is Ex. PW1/B. During cross examination, he has admitted that IO did not obtain subsequent opinion regarding the use of weapon viz-a-viz injury, however none of the injured was accompanied with police officials.
7.8. PW8 Dr. Raj Kumar, SR Neurosurgery, GTH Hospital has proved the nature of injury on the MLC of injured Nanua as simple.
7.9. PW9 Dr. Anjay Kumar has proved the nature of injuries on the MLCs of Hazi Umar and Nanua from surgery point of view as simple.
7.10. PW10 HC Omveer was posted as MHC(M) and has proved entries of register No.19 as Ex. PW10/A to Ex. PW10/C. 7.11. PW11 Ct. Joginder deposited the sealed parcels containing exhibits on 02.06.11 with FSL, Rohini after collecting from MHC(M). He handed over acknowledgement to MHC(M).
FIR No. 61/2011 State vs. Riyazuddin etc. 9/37 7.12. PW12 Dr. Pratima, Civil Assistant Surgeon (Dental) GTB Hospital has proved the handwriting of Dr. Aditya SR (Dental) and Dr. Neha Aggarwal, SR (Dental) at points X1 to X3 on the MLC of injured Nanua regarding preparation of MLCs.
7.13. PW13 ASI Krishan Pal, IO was assigned the investigation of DD No. 39B regarding a quarrel near Jafrabad Police Station. He visited the spot of incident along-with Ct. Mehar Singh and apprehended one Riyazuddin from the spot, whereas other assailants fled away. He booked Riyazuddin under section 107/151 Cr.P.C, whereas injured had already been removed to GTB Hospital. Accused Riyazuddin was put into lockup and he along with Ct. Mehar Singh went to GTB Hospital, where Hazi Umar and Nanau were found to be hospitalized. He collected their MLCs and recorded the statement of Hazi Umar, on which basis, he prepared rukka Ex. PW13/A and handed over to Ct. Mehar Singh for registration of FIR. He also prepared site plan Ex.PW13/B at the instance of Hazi Umar and arrested accused Riyazuddin and Mainuddin on 26.04.2011 vide arrest memos Ex.PW6/B and Ex.PW6/A. It is further deposed that accused Riyazuddin got recovered an iron rod from his house, whereas co-accused Mainuddin got recovered one wooden log, which were seized vide seizure memos Ex. PW6/E and Ex. PW6/F. He conducted the personal search of both accused vide memos Ex. PW6/C and Ex. PW6/D and both accused made their disclosure statements Ex. PW6/G and Ex. PW6/H. It is further deposed that both accused were produced before the court concerned and were remanded for J/C. However, he could not arrest other accused persons namely Aminuddin, Asgar Ali and Ikram Ali as they had already been directed to be released on interim bail by the Hon'ble High Court, however they were formally arrested vide memos Ex.PW13/C to FIR No. 61/2011 State vs. Riyazuddin etc. 10/37 Ex.PW13/E. Their personal search was also conducted vide memos Ex.PW13/F to Ex.PW13/H. It is further deposed that on 17.05.2011, Hazi Umar and Nanua produced their blood stained clothes which were seized and sent to FSL through constable. He also obtained opinion on the MLCs of the injured from the doctor of GTB Hospital.
7.13.1. During cross examination, he has deposed that he did not verify the address of injured Nanua, however he was residing with his brother Hazi Umar, but there is no document to this effect. It is admitted that at the time of preparing of kalandra, he did not make any recovery. He did not remember the name of the caller of DD No. 39B, but again said, caller was Hazi Umar. It is admitted that name of the caller and mobile number is not mentioned in DD No. 39B, however spot of this incident was about 100 meters away from PS Jafrabad. He prepared site plan at the instance of Hazi Umar, but has not shown the distance between the spot of incident and PS in site plan, however no shop was situated there upto PS Jafrabad, but there was a primary school in between the both addresses. He has admitted that he has not cited any witness from the locality to this incident, whereas there was aabadi nearby to the spot of incident and even Gali No.22 is also a residential area. He has further admitted that on 28.02.2011, he called Nanua and Hazi Umar to PS regarding the investigation of a complaint registered by them, but no notice was served upon them to join such investigation. However, complaint was made by Hazi Umar and was assigned to him prior to 28.02.2011, but complaint dated 30.05.2011 was not assigned to him. It is admitted that he did not make any inquiry from Dr. Shariq-ur-Rehman regarding the treatment given to injured Nanua. It is further admitted that one danda and iron rod were recovered from the spot behind the door of a room either by him or Ct.
FIR No. 61/2011 State vs. Riyazuddin etc. 11/37 Rajesh who was accompanied him, but he did not prepare the sketches of recovered danda and rod nor any identification mark was put over them.
7.14. PW14 Dr. Shariq-ur-Rehman was running a clinic and laboratory in the name and style of Rehmania Diagnostic & Medical Centre. On 05.03.2011, he examined patient Nanua with alleged history of fight between the family members and had injuries on his left foot, face, broken teeth and abrasions all over the face and other body parts. He also had swelling on his left knee joint and was examined vide prescription Ex. PW14/A. He also prepared the medical certificate Ex. PW14/B. 7.14.1. During cross examination, he admitted that the prescription and certificate Ex.PW14A to Ex.PW14/B do not bear complete address or specific identity mark of the patient. It is further admitted that the letterhead is showing Rehmania Diagnostic and Medical Centre and word clinic is not there. It is further admitted that Bhartiya Chikitsa Parishad is the authority to examine the medical certificates issued by him, but he did not get examined the certificates Ex.PW14/B & C from Bhartiya Chikitsa Parishad in respect of their genuineness. It is further admitted that the certificate Ex.PW14/B does not bear any number and date of its issuance. He also did not examine any document regarding the identity of Nanua and cannot ensure the identity of injured Nanua. It is further admitted that the medical certificates do not bear the complete address and specific identity mark of the patient and as per the norms of the Bhartiya Chikitsa Parishad, the said medical certificates will be neither correct or genuine. It is further admitted that the certificates Ex.PW14/A to Ex.PW14/C are not legally correct as per norms of Bhartiya Chikitsa Parishad. It is further admitted that he did not inform the police as it FIR No. 61/2011 State vs. Riyazuddin etc. 12/37 was not disclosed to him that it was a police case. He observed the injuries and noted down in prescription Ex.PW14/A, but did not specify on which particular foot the injured sustained injuries. Injured also did not inform him about any FIR against this incident.
7.15. PW15 Dr. Rajendra Kumar, Retired Deputy Director, FSL, Rohini, Delhi has proved FSL reports Ex.PW15/A to Ex.PW15/C. He has admitted during cross examination that his report has not given any description of wooden danda, Iron rod, shirt, kurta, handkerchief, jackets and socks as mentioned in the exhibits. He has not seen the handkerchief, jackets and socks as mentioned in the exhibits before this court. He has also not given the age of the bloodstains in his report, as it was not sought by the IO.
8. DW1 Hamid Raza did not remember the date, but in the month of February 2011, he attended Dawat-e-walima of the son of Ismile and met accused Mainuddin, Aminuddin, Ikram and Asgar Ali there.
8.1. DW2 Mohd. Ismile has deposed that he was invited by Jahid to attend Dawat-e-walima and witnessed that the accused namely Mainuddin, Aminuddin, Ikram and Asgar Ali were also invited there and they attended function on 28.02.2011 and left for home at about 8.00/9.00 pm. 8.2. DW3 Mirza Zubair Baig has also corroborated the testimony of DW1 and DW2 that he saw the police officials with accused Riyazuddin and two other unknown persons, but accused Riyazuddin was picked from his home and was taken to Police station, whereas he had gone to attend a marriage function at Brahampuri on the day of this incident.
FIR No. 61/2011 State vs. Riyazuddin etc. 13/37 8.3. DW4 Danish Ali was the tenant of accused Aminuddin and was running a shop of Biryani. He noticed that on 28.02.2011 at about 1.00/1.30 PM, two police officials came to the house of accused Riyazuddin and took him to PS. 8.4. DW5 Riyasuddin has deposed that on 28/02/2011, at about 12:00/1:00pm, he was getting ready to attend a marriage ceremony and his family members had already left for it, but two police officials along with Hazi Umar and Nanua reached his home and took him to PS, where Nanua and Hazi Umar blamed him of abusing on phone and Nanua also slapped him, but he pushed him and fled away. It is further deposed that police officials apprehended him and put into lockup and he was released on bail on next day. However, he did not raise alarm when police officials took him to PS nor informed his family members.
8.5. DW6 Mainuddin has again deposed the same facts as deposed by other DWs that he was in marriage function at the time of this incident and was falsely implicated by the police initially in kalandara and thereafter, in this case.
8.6. DW7 Ikram Ali has deposed that he has been falsely implicated to this case and even he made a complaint to DCP concerned which is mark A, but nothing could be done.
8.7. DW8 Aminuddin has also deposed that he was in a marriage function of his nephew and has been falsely implicated to this case.
FIR No. 61/2011 State vs. Riyazuddin etc. 14/37
9. I have heard the arguments and perused the record. All the accused persons have been charged u/s 308/341/506/34 IPC and prosecution has examined a number of witnesses to prove these charges against them. However, accused persons have taken a plea of alibi that all the accused except Riyazuddin were not present at the spot of incident and were away to attend dawat-e-walima of Ismile at Street No. 19, Braham Puri, Delhi and have been falsely implicated to this case. To support this plea, Ld. Counsel for accused has relied upon the testimony of DWs who have deposed that the accused Mainuddin, Aminuddin, Ikram and Asgar Ali were present in the said walima, but Riyazuddin was not there. On the other hand, DWs Mirza Baig and Danish Ali have deposed that they witnessed that accused Riyazuddin was apprehended by the police from his house and was taken to PS. On the other hand, Riyazuddin has accepted his presence at the spot and has deposed that he had an altercation with complainant and his brother Nanua and fled away from the spot after pushing them, but police apprehended him from his home and falsely implicated to this case. Ld. Counsel for the accused has argued that all the accused have been falsely implicated to this case and were not present at the spot, due to they are liable to be acquitted. On the other hand, Ld. APP for State has strongly opposed these submissions thereby arguing that accused persons have taken a false plea just to save themselves from lawful punishment and testimonies of DWs are false and are liable to be rejected.
10. However, before considering the plea of alibi alleged by the accused persons, it is necessary to go through the law related to alibi and also the mode and manner of proving this alibi. Plea of alibi came into interpretation before the Hon'ble Supreme Court in a case titled Binay Kumar Singh v.
FIR No. 61/2011 State vs. Riyazuddin etc. 15/37 State of Bihar, (1997) 1 SCC 283 and the observation of the Hon'ble Apex Court is as under: -
22. We must bear in mind that an alibi is not an exception (special or general) envisaged in the Penal Code, 1860 or any other law. It is only a rule of evidence recognised in Section 11 of the Evidence Act that facts which are inconsistent with the fact in issue are relevant. Illustration (a) given under the provision is worth reproducing in this context:
"The question is whether A committed a crime at Calcutta on a certain date; the fact that on that date, A was at Lahore is relevant."
23. The Latin word alibi means "elsewhere" and that word is used for convenience when an accused takes recourse to a defence line that when the occurrence took place he was so far away from the place of occurrence that it is extremely improbable that he would have participated in the crime. It is a basic law that in a criminal case, in which the accused is alleged to have inflicted physical injury to another person, the burden is on the prosecution to prove that the accused was present at the scene and has participated in the crime. The burden would not be lessened by the mere fact that the accused has adopted the defence of alibi. The plea of the accused in such cases need be considered only when the burden has been discharged by the prosecution satisfactorily. But once the prosecution succeeds in discharging the burden it is incumbent on the accused, who adopts the plea of alibi, to prove it with absolute certainty so as to exclude the possibility of his presence at the place of occurrence. When the presence of the accused at the scene of occurrence has been established satisfactorily by the prosecution through reliable evidence, normally the court would be slow to believe any counter-evidence to the effect that he was elsewhere when the occurrence happened. But if the evidence adduced by the accused is of such a quality and of such a standard that the court may entertain some reasonable doubt regarding his presence at the scene when the occurrence took place, the accused would, no doubt, be entitled to the benefit of that reasonable doubt. For that purpose, it would be a sound proposition to be laid down that, in such circumstances, the burden on the accused is rather heavy. It follows, therefore, that strict proof is required for establishing the plea of alibi. This Court has observed so on FIR No. 61/2011 State vs. Riyazuddin etc. 16/37 earlier occasions (vide Dudh Nath Pandey v. State of U.P. [(1981) 2 SCC 166 : 1981 SCC (Cri) 379]; State of Maharashtra v. Narsingrao Gangaram Pimple [(1984) 1 SCC 446 : 1984 SCC (Cri) 109 : AIR 1984 SC 63] .
11. Further, in case titled Jayantibhai Bhenkarbhai v. State of Gujarat, (2002) 8 SCC 165, it is observed that;
19. The plea of alibi flows from Section 11 and is demonstrated by Illustration (a). Sarkar on Evidence (15th Edn., p. 258) states the word "alibi" is of Latin origin and means "elsewhere". It is a convenient term used for the defence taken by an accused that when the occurrence took place he was so far away from the place of occurrence that it is highly improbable that he would have participated in the crime. Alibi is not an exception (special or general) envisaged in the Penal Code, 1860 or any other law. It is only a rule of evidence recognized in Section 11 of the Evidence Act that facts which are inconsistent with the fact in issue are relevant. The burden of proving commission of offence by the accused so as to fasten the liability of guilt on him remains on the prosecution and would not be lessened by the mere fact that the accused had adopted the defence of alibi. The plea of alibi taken by the accused needs to be considered only when the burden which lies on the prosecution has been discharged satisfactorily. If the prosecution has failed in discharging its burden of proving the commission of crime by the accused beyond any reasonable doubt, it may not be necessary to go into the question whether the accused has succeeded in proving the defence of alibi. But once the prosecution succeeds in discharging its burden then it is incumbent on the accused taking the plea of alibi to prove it with certainty so as to exclude the possibility of his presence at the place and time of occurrence. An obligation is cast on the court to weigh in scales the evidence adduced by the prosecution in proving the guilt of the accused and the evidence adduced by the accused in proving his defence of alibi. If the evidence adduced by the accused is of such a quality and of such a standard that the court may entertain some reasonable doubt regarding his presence at the place and time of occurrence, the court would evaluate the prosecution evidence to see if the evidence adduced on behalf of the prosecution leaves any slot available to fit therein the defence of alibi. The burden of the accused is undoubtedly heavy. This flows from Section 103 of the Evidence Act which provides that the FIR No. 61/2011 State vs. Riyazuddin etc. 17/37 burden of proof as to any particular fact lies on that person who wishes the court to believe in its existence. However, while weighing the prosecution case and the defence case, pitted against each other, if the balance tilts in favour of the accused, the prosecution would fail and the accused would be entitled to the benefit of that reasonable doubt which would emerge in the mind of the court.
12. However, it has to be seen as to how has this plea of alibi is to be proved. Law to this effect has laid down in case titled Sk. Sattar v. State of Maharashtra, (2010) 8 SCC 430 and the observation of the court is as under: -
35. Undoubtedly, the burden of establishing the plea of alibi lay upon the appellant. The appellant herein has miserably failed to bring on record any facts or circumstances which would make the plea of his absence even probable, let alone, being proved beyond reasonable doubt. The plea of alibi had to be proved with absolute certainty so as to completely exclude the possibility of the presence of the appellant in the rented premises at the relevant time. When a plea of alibi is raised by an accused it is for the accused to establish the said plea by positive evidence which has not been led in the present case. We may also notice here at this stage the proposition of law laid down in Gurpreet Singh v. State of Haryana [(2002) 8 SCC 18 : 2003 SCC (Cri) 186] as follows:
(SCC p. 27, para 20) "20. ... This plea of alibi stands disbelieved by both the courts and since the plea of alibi is a question of fact and since both the courts concurrently found that fact against the appellant, the accused, this Court in our view, cannot on an appeal by special leave go behind the abovenoted concurrent finding of fact."
13. In view of the above said law, it stands proved that the plea of alibi has to be proved by the accused and should be established with the help of cogent evidence. To prove this plea, accused persons have relied upon the testimonies of DWs, but it is pertinent to mention here that this plea of alibi has been set up by the accused only during their defense evidence and was never raised FIR No. 61/2011 State vs. Riyazuddin etc. 18/37 before the prosecution witnesses to give them opportunity to tender an explanation. Prosecution has examined both witnesses namely Hazi Umar and Nanua to prove the charges against the accused, but none of them was even put any suggestion to this effect that accused persons were not present at the spot during this incident or they were present in any marriage function. Similarly, IO was the main witness who could have explained this fact, but he was also not cross examined on this aspect that all accused were not present at the spot of incident or they were present in dawat-e-walima except accused Riyazuddin. As such, such plea of alibi put forward by the accused during defence evidence is afterthought.
14. Further, accused have examined 7 DWs to prove their defense. DW1 Hamiz Raza did not remember the date, but in the month of February, 2011, he attended dawat-e-walima of the son of Ismile and met accused namely Mainuddin, Aminuddin, Ikram and Asgar Ali there, but Riyazuddin was not there. DW2 Md. Ismile has also corroborated that he met the above said accused on 28/02/2011 between 11:00 am to 8:00/9:00 pm and has also proved marriage card Ex.DW2/A. DW3 Mirza Zubair Baig also witnessed that Riyazuddin was caught by two police officials accompanied with two other unknown persons from his house, whereas his other family members were away to attend a family function at Bharam Puri, Delhi. However, he did not inform the police or anyone about it. DW4 Danish Ali has also corroborated the testimony of DW3 thereby deposing the similar facts. DW5 accused Riyazuddin has also deposed that on 28/02/2011 at about 12:00 / 1:00 pm, two police official apprehended him and took him to PS where his in- laws were present. It is further deposed that he had an altercation with her in- laws and Nanua slapped him, but he pushed him and fled away, however his FIR No. 61/2011 State vs. Riyazuddin etc. 19/37 in-laws with police chased him and brought to PS from his house and implicated to this case. DW6 Moinuddin has also corroborated the testimony of other DWs. He has also deposed that he attended the marriage ceremony at Bharam Puri where Riyazuddin was not present, but he returned back to home at 8:00 pm and his tenant Danish informed him that Riyazuddin was apprehended by the police and was released on bail on next day. DW7 Ikram Ali has also deposed that he has been falsely implicated to this case. DW8 Aminuddin also attended the similar function long back, but did not remember the date, month and year of such function, however he received information of the case at about 11:00 pm and on next day, he was released on bail by the court of the Executive Magistrate.
15. After going through the testimonies of Defense Witnesses, it is clear that the DW5 Riyazuddin has admitted his presence at the spot of incident and other DWs have also corroborated this fact that he was not with them. Even they have also admitted that accused Riyazuddin was arrested in this case and DW8 Aminuddin has corroborated that it was a case pertaining to the court of Executive Magistrate. This fact has also been corroborated by Kalandra u/s 107/151 CrPC initially lodged against the accused, as also proved by IO that accused Riyazuddin was arrested for preventive action after this incident. As such, involvement of the accused to this incident stands proved.
16. So far as presence of other accused at the spot of incident is concerned, their presence during dawat-e-walima / marriage function seems doubtful on various grounds. Firstly, so many persons attended the alleged function but none of the accused has proved any photograph/ video graph of this function to fortify their claim that they were present there. Secondly, all the DWs have FIR No. 61/2011 State vs. Riyazuddin etc. 20/37 deposed that they have been falsely implicated to this case, but none of them ever lodged any protest with higher police authorities against their false implication except DW7 Ikram Ali, who has proved a complaint Mark A, but it was also not followed by any further action when no action was taken on it. On the other hand, Riyazuddin was allegedly implicated in a false Kalandra u/s 107/151 CrPC, but also did not lodge any complaint against this false implication which suggests that he had no grievance against this implication and committed this offence.
17. Further, all the accused allegedly committed this offence at about 3:30 pm, whereas the alleged marriage function was also nearby to the spot of incident and it was quite possible to accused either to attend such function after committing this offence or commit this incident during the period when function was going on, especially when Riyazuddin has already admitted his presence at the spot and was also apprehended there soon after this incident. As such, this defence is afterthought.
18. However, not proving of the defence by the accused does not mean that accused has to be convicted, but still prosecution is duty bound to prove the charges against the accused beyond doubt. Now it has to be seen as to whether prosecution has proved the charges against the accused persons or not. As per the allegations of the prosecution, all the accused in furtherance of their common intention caused injuries to both injured by danda and iron rod, with intention or knowledge that such injuries could have caused their death. To prove these charges under Section 308/34 IPC, prosecution has examined PW1 Hazi Umar who is not only complainant but also the injured of this incident. He has categorically deposed that the marriage of his daughter FIR No. 61/2011 State vs. Riyazuddin etc. 21/37 Shabana was solemnized with accused Riyazuddin, but her in-laws started harassing her for dowry demands. It is further proved that accused extended threats to kill him on telephone and on 23 or 24.02.2011, he lodged a complaint with PS Jafrabad against the accused and police officials called him to join investigation. On 28.02.2011 at about 3.30 pm, he along with his brother Nanua went to PS to attend enquiry and came out of PS Jafrabad after attending inquiry and reached on the road when accused persons namely Riyazuddin, Aminuddin, Mainuddin, Ikram and Asgar Ali, armed with iron rod (saria) and dandas, stopped and assaulted them. Not only this, he has further proved that accused Riyazuddin assaulted him on his head by saria, whereas accused Aminuddin assaulted by danda. Accused Mainuddin assaulted his brother Nanua by a danda, whereas accused Ikram caught his brother and also assaulted with fist blows, whereas accused Asgar Ali caught him and assaulted with fist blows. It is further deposed that accused Riyazuddin threatened him by stating that "Asgar tu hat ja, ise jaan se hi mar deta hu", whereas accused Asgar Ali flipped a knife and also extended life threat. All the accused persons fled away on seeing police, but Riyazuddin was apprehended at the spot. However, both injured sustained head and other injuries and were removed to hospital.
19. The above said testimony of PW1 has been duly corroborated by PW2 Nanua, who has also deposed that this incident took place on 28 th day, at about 3.30 pm, but he did not remember the month, however he along with his brother Hazi Umar went to PS Jafrabad to attend proceedings regarding a complaint lodged by his brother Hazi Umar against the accused. It is further corroborated that they came out of PS and reached on the road when all the accused persons assaulted them. It is further proved that accused Riyazuddin FIR No. 61/2011 State vs. Riyazuddin etc. 22/37 assaulted him with an iron rod and danda on his head and caused head injuries, whereas accused Mainuddin grappled with him. He started bleeding, became unconscious and sustained injuries on his head, right leg and also lost his four teeth during this assault. As such, the above said testimonies of both injured have proved the involvement of all accused during this incident and also use of weapons. MLCs which are Ex.PW1/B and Ex. PW2/B have also corroborated this incident and also that both the injured sustained injuries during this incident. Police also seized their blood-stained clothes Ex.PW1/P1 and Ex.PW1/2 vide seizure memos Ex.PW1/C and Ex. PW2/A respectively and have also corroborated this incident, whereas iron rod Ex. PW1/P3 recovered at the instance of accused Riyazuddin and wooden log Ex.PW1/P4 recovered at the instance of Aminuddin have further corroborated that accused used these weapons during this incident and weapons were capable to cause such injuries to both injured. Both the injured have duly identified the weapons i.e. iron rod and danda. The photographs of both injured clicked soon after incident which are Ex.PW1/E and Ex.PW1/F have also corroborated that the injured were caused head injuries as deposed.
20. The above said testimonies of both PW1 & 2 have been duly corroborated by the testimony of PW13 ASI Krishan Pal that he called Hazi Umar to PS to make inquiry regarding his complaint under the direction of SHO concerned. He has further proved that accused Riyazuddin was apprehended at the spot soon after this incident and was booked in a Kalandra under section 107/151 CrPC and this testimony of PW13 is in consent with the testimony of Riyazuddin who has also admitted that he was apprehended FIR No. 61/2011 State vs. Riyazuddin etc. 23/37
21. However, Ld. Counsel for the accused has argued that the cross examination of both PWs was not complete due to their examination in chief also have to dispensed with, and after dispensing with their examination in chief, there is no evidence against accused and all are entitled for acquittal. On the other hand, Ld. APP for state has argued that both the witnesses were duly cross examined by all accused earlier, but they moved an application u/s 311 CrPC for their re-examination, but their re-examination could not be done as PW1 has expired and PW2 has left his last known address. It is further submitted that the blame for non-appearance of both PWs cannot be attributed to prosecution, as the presence of both PWs was beyond the control of prosecution and the testimonies of both PWs are admissible in law and have also proved the involvement of all accused to this case.
22. Admittedly, both the PWs Hazi Umar and Nanua were duly cross examined by the accused and were discharged, but accused persons moved an application u/s 311 CrPC for their recalling for further cross examination, which was allowed vide order dated 04.06.2013. However, both PWs could not appear for re-examination as PW1 has expired and PW2 left his last known address. No doubt accused persons were entitled for re-examination for both PWs, if this court allowed them, but such re-examination of any witness, who has already been discharged after complete examination, is always shall be subject to availability of that witness. However, if witness is not available for the reason being has expired or some other reason beyond the control of prosecution, then the recorded testimony of such witness cannot be dispensed with for this reason and shall be read into evidence. In view of this proposition, the testimony of both PWs shall be read against the accused persons.
FIR No. 61/2011 State vs. Riyazuddin etc. 24/37
23. PWs namely Hazi Umar and Nanua were also injured of this incident and a legal sanctity is attached to their statements and law to this effect has laid down in titled State of UP v. Kishan Chand, (2004) 7 SCC 629 as under;
...the testimony of a stamped witness has its own relevance and efficacy. This fact that the witness sustained injuries at the time and place of occurrence, lends supports to his testimony that he was present during the occurrence. In case the injured witness is subjected to lengthy cross examination and nothing can be elicited to discard his testimony, it should be relied upon...
24. It is further held in Abdul Sayeed v. State of Madhya Pradesh (2010) 10 SCC 259 that ...the law on the point can be summarized 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 ground for rejection of his evidence on the basis of major contradictions and discrepancies therein...
25. In view of the above said case law, it stands proved that the testimonies of both injured have special status and inspire confidence, until and unless have such contradictions which render their entire testimonies useless. However, in this case, both PWs are constant in their statements and their statements are intact despite lengthy cross examination and are sufficient to prove the involvement of accused. Even FIR lodged on the basis of statement of PW1 is also containing all details of this offence in the similar manner as proved by PWs, whereas their MLCs which have also supported the mode and manner of causing injuries to them by accused.
FIR No. 61/2011 State vs. Riyazuddin etc. 25/37
26. Further, the testimonies of PW1 and PW2 have been duly corroborated by PW4 Ct. Maher Singh, who also visited the spot of incident as well as GTB Hospital with IO ASI Krishan Pal and also got registered FIR after this incident on the basis of statement of PW1 recorded by IO in hospital. He also witnessed the seizure of the blood-stained clothes vide seizure memos Ex.PW1/C and Ex.PW2/A. Though PW4 has failed to point out any land mark of the spot of incident, yet his testimony has duly corroborated the statements of both injured. PW8 Dr. Raj Kumar Raj, PW9 Dr. Anjay Kumar and PW12 Dr. Pratima have duly proved the injuries by both injured. PW13 ASI Krishan Pal has also proved the investigation of this case. As such, all the witnesses have duly supported the version of the injured that they were removed to hospital after sustaining injuries which were caused by the accused persons.
27. However, Ld. Counsel for the accused has argued that the testimonies of PW1 and PW2 are not reliable and are containing material contradictions, especially in comparison of their statements made before the police and are not sufficient to convict them, but this submission has no force. Both the injured have categorically proved the involvement of the accused to this incident and the contradictions emerged in their testimonies are also of such nature which may be minor only. It is settled law that only those contradictions are relevant which materially affect the case of the persecution as laid down in case titled Sunil Kumar Sambhu dayal Gupta (Dr.) and Others v. State of Maharashtra, (2010) 13 SCC 657 as under:
...the contradictions / omissions must be of such nature which materially affects the trial. Minor contradictions, inconsistencies, embellishments or improvements which do not affect the core of the prosecution case should not be made a ground to reject the evidence of the witness in entirety...
FIR No. 61/2011 State vs. Riyazuddin etc. 26/37 As such, contradictions in the testimonies of PWs are just minor and are not fatal to this case and have proved that all the accused caused this incident.
28. Now the arrest of accused persons as well as recoveries in pursuance of their disclosure statements has to be seen. PW6 Ct. Rajesh Kumar has proved the arrest of accused Riyazuddin and Moinuddin on the basis of a secret information vide arrest and personal search memos Ex.PW6/A to Ex.PW6/D. Both accused made their disclosure statements Ex.PW6/G and Ex.PW6/H. Iron rod and wooden log which are Ex.PW1/P3 and Ex.PW1/P4 were seized vide seizure memos Ex.PW6/F and Ex.PW6/E at their instance on the same day of their arrest. Weapons were recovered from their house itself. Ld. Counsel for the accused has argued that this recovery was highly belated, as incident took place in the month of February, whereas recovery was effected in the month of April, due to recovery of weapon is doubtful. However, this submission has no force. No doubt weapons were recovered belated, but this delay was due to the conduct of both accused Riyazuddin and Mainuddin itself, as they absconded soon after this incident and were arrested only after dismissal of their anticipatory bail applications by the Hon'ble High Court on 28/03/2022. On the other hand, both weapons were recovered on the same day of their arrest. As such, cause of delay in this recovery cannot be attributed to the prosecution and recovery of weapons stands proved beyond doubt.
29. Further, this recovery of weapons has also been assaulted by Ld. Defence Counsel on the ground that this recovery was effected from the house of both accused, but still their neighbors or family members have not been made witness to this recovery and even no explanation has been offered to it. No doubt recovery has been effected from the house of both accused. but this FIR No. 61/2011 State vs. Riyazuddin etc. 27/37 recovery was made in the custody and cannot be disputed merely because family members or neighbors were not made witness to this recovery. PW13 IO has offered an explanation for non-joining of public persons in recovery proceedings, as none of them agreed. In fact, recovery of weapon cannot be disputed merely because it was not witnessed by any public person. It is not the disputed fact that normally public witnesses are reluctant to join police investigation and their absence during investigation is not always harmful or fatal to the case. Police officials are also competent witnesses to prove any recovery as laid down by Tahir v. State, 1996 (3) SCC 338 and Anter Singh v. State of Rajasthan 2004(10) SCC 657 that police officials are competent witnesses and there is no such principle that they are not competent witness or should be supported by some public witnesses.
30. The Legal requirement for admissibility of recovery is the reliability of recovery in pursuance of disclosure statement and law to this effect has laid down in case titled Mohd. Arif Alias Ashfaq v. State (NCT of Delhi) (2011) 13 SCC 621 that "The essence of the proof of a discovery under section 27 of the Evidence Act is only that it should be credibly proved that the discovery made was relevant and material discovery which proceeded in pursuance of information supplied by the accused in the custody. How the prosecution proved it, is to be judged by the court but if the court finds the fact of such information having been given by the accused in custody is credible and acceptable even in the absence of the recorded statement in pursuance of that information some material discovery has been effected than the aspect of discovery will not suffer from any vice and can be acted upon." In view of the above said law laid down by the Hon'ble Apex Court, the recovery of the weapon is very relevant as well as admissible against the accused.
FIR No. 61/2011 State vs. Riyazuddin etc. 28/37
31. In fact, recovery of weapon is admissible not only u/s 27 of Evidence Act but also u/s 8 of Evidence Act as conduct of the accused as laid down in case titled Pankaj v. State of Rajasthan, (2016) 16 SCC 192 as under:
23. An objection was raised by the learned Senior Counsel for the appellant-accused that recovery of firearm at the instance of the appellant-accused was planted by the police and it could not have been relied upon. This Court, in a number of cases, has held that the evidence of circumstance simpliciter that an accused led a police officer and pointed out the place where weapon was found hidden, would be admissible as conduct under Section 8 of the Evidence Act, irrespective of whether any statement made by him contemporaneously with or antecedent to such conduct falls within the purview of Section 27 of the Evidence Act.
In view of the above said law, it stands proved that the recovery of weapon at the instance of both accused stands proved beyond doubt.
32. However, merely recovery is not averse to the accused, until and unless it is connected to the offence for which accused has been charged. PW1 and PW2 have categorically proved that accused namely Riyazuddin and Mainuddin used these weapons i.e. iron rod and wooden log to cause them injuries whereas other accused beat them by kick and fist blows. MLCs of both injured have also proved this fact. PW7 Dr. Naeem Shamsi has proved MLC of Hazi Umar as Ex.PW1/A and MLC of Nanua as Ex.PW2/B. As per MLC of injured Hazi Umar, he sustained following injuries as under:
1. Lacerated wound with red abraded margin measuring 4 x .5 into muscle deep.
2. The nature of injuries opined by the doctor was Simple.
FIR No. 61/2011 State vs. Riyazuddin etc. 29/37 Injured Nanua sustained following injuries as under : -
(a) Lacerated wound on the at the top of head measuring 8 cm x .5 cm into muscle deep and injured was unfit for statement.
(b) The nature of injuries opined by the doctor was Simple.
After going through the above said medical evidence, it stands proved that the above said injuries were possible to be caused by the danda/ iron rod as recovered at the instance of both accused.
33. However, Ld. Counsel for the accused has argued that the testimony of PW14 Dr. Shariq-ur-Rehman has proved that the medical documents issued by him were against the medical norms as approved by Bharatiya Chikitsa Parishad and the same are liable to be discarded. On the other hand, Ld. APP for State has argued that the purpose of medical evidence is corroborative to the version of oral evidence or to prove the mode and manner of causing injuries which has been duly proved by PW14 and the arguments of Ld. Defence Counsel have no force.
34. The purpose of medical evidence is corroborative and to prove that the injuries sustained by the injured were possible to be caused in the similar manner as alleged or not. A similar proposition has laid down by case titled Solanki Chimanbhai Ukabhai v. State of Gujarat, AIR 1983 SC 484. Though IO has not obtained any subsequent opinion from the doctor regarding the use of weapons viz-a-viz injuries sustained by both injured by these weapons, yet rod and wooden log were blunt object and were capable to cause injuries to both injured as sustained by them and also proved by their oral evidence except tooth injury to PW2. PW1 and PW2 have orally deposed FIR No. 61/2011 State vs. Riyazuddin etc. 30/37 that 4 teeth of PW2 were also broken by the accused persons, but medical evidence to prove this injury is matter of discussion. PW14 has been examined by prosecution to prove this fact. This injury is directly covered by section 320 of IPC, punishable u/s 325 IPC. However, PW14 Dr. Shariq-ur- Rehman has failed to prove the medical prescription as well as certificate Ex.PW14/A to Ex.PW14/C. He has admitted that medical prescription does not bear the complete address and specific identity mark of the patient and even medical certificate is also not correct or genuine as per the norms of Bhartiya Chikitsa Parishad. On the other hand, the MLC of Nanua prepared in GTB Hospital has no description of such teeth injuries and in the absence of any supporting medical evidence, the offence u/s 325 IPC is not made out against accused persons.
35. Ld. Counsel for the accused has further argued that the prosecution has failed to prove that the accused persons had intention or knowledge to commit culpable homicide not amounting to murder as required and, in the absence of proving such intention or knowledge in attempting to kill the injured, accused cannot be held guilty for the offence under Section 308 IPC. On the other hand, Ld. APP for the State has argued that the mode and manner of causing injuries by the accused has proved that the accused caused injuries on vital body part of injured which could have killed them, if their attempt would have succeeded. It is further argued that it is sufficient to conclude that all the accused persons had intention or knowledge to commit this offence and it stands proved they committed this offence in furtherance of their common intention and are liable to be convicted u/s 308/34 IPC.
FIR No. 61/2011 State vs. Riyazuddin etc. 31/37
36. Before deciding the guilt of the accused, it is necessary to go through the legal provisions under which accused can be convicted. All accused have been charged under section 308 IPC due to this section is relevant. Section 308 IPC is as under:
Section 308: Attempt to commit culpable homicide.--Whoever does any act with such intention or knowledge and under such circumstances that, if he by that act caused death, he would be guilty of culpable homicide not amounting to murder, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both; and, if hurt is caused to any person by such act, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both.
37. From the above said definition, it stands proved that this section has been divided in two parts. The first part deals with a situation where if an act is done by a person, with such intention or knowledge and under such circumstances that, if he by that act caused death, then such person would be guilty of culpable homicide not amounting to murder and shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both. The second type of circumstance contemplated under the said Section is when hurt is caused to any person by such act, as mentioned in the first part of the section, then the quantum of punishment would increase to imprisonment of either description for a term which may extend to seven years, or with fine, or with both. Therefore, physical hurt is not a necessary prerequisite for invoking the provisions of Section 308 IPC, which fact is borne out from a bare reading of the aforesaid section and any hurt which is caused to the victim would only serve to enhance the quantum of sentence.
FIR No. 61/2011 State vs. Riyazuddin etc. 32/37
38. In the present case, the testimonies of the PWs have proved that the accused persons assaulted them by danda/rod/kicks and fist blows in pre-
mediated manner and that too without any provocation. Even the body parts chosen by them to assault were also vital i.e. head and face. However, just on the basis of assault on the vital body parts, it cannot be determined that the accused had intention or knowledge that their assault was going to kill injured. To determine the intention or knowledge of the accused to cause such bodily injury which was likely to cause death has to be gathered from different facts like use of weapon, parts of body where injuries were inflicted and also the nature of injuries sustained by the injured. For the purpose of determination of injury on the body parts as well as nature of injuries, MLCs of both injured have to be seen, as per which, they sustained only "SIMPLE" injuries and injuries were not life threatening. No doubt lacerated wounds muscle deep on parietal and occipital region were caused by accused, but only single blow was given to each injured which has proved that the intention of the accused was not to cause their death. As such, there is also no material on record to prove the knowledge of the accused that their act was going to cause the death of both injured. As such, accused persons had no requisite intention or knowledge to cause death of both injured to whom they assaulted.
39. In view of the above said discussion, I am of the opinion that prosecution has failed to prove the requisite intention or knowledge on the part of accused persons to commit offence under section 308 IPC. However, they are definitely liable for the minor offence which they have committed by the virtue of section 222 CrPC. The ingredients of section 320 IPC are not satisfied in this case, due to offence of "simple hurt" as defined u/s 319 IPC and punishable u/s 323 IPC has to be seen as under:-
FIR No. 61/2011 State vs. Riyazuddin etc. 33/37 Section-319. Hurt.- Whoever causes bodily paid, 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.
40. In view of the nature of injuries suffered by both injured, accused persons are liable u/s 323 IPC. They committed the offence of simple hurt in furtherance of their common intention and all are liable by the virtue of section 34 IPC. As such, all the accused persons convicted u/s 323/34 IPC in lieu of section 308/34 IPC.
41. So far charge u/s 341/34 IPC is concerned, PW1 & 2 have categorically proved that all the accused wrongfully restrained them and assaulted by danda/rod/kick and fist blows. Wrongful restraint has been defined under section 339 IPC 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.
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.
42. In fact, there was requirement of section 339 IPC that injured/ complainant must be obstructed or prevented to move in his desired direction in which he has right to proceed and the testimonies of PW1 & 2 have proved that they were obstructed by the accused and assaulted. PW1 has categorically named all accused who caught them hold and did not allow to move and has FIR No. 61/2011 State vs. Riyazuddin etc. 34/37 proved the involvement of accused persons to this offence. As such, all the accused persons are liable u/s 341/34 IPC as well.
43. Next charge against the accused persons is u/s 506/34 IPC. Prosecution has examined PW1 and PW2 to prove this charge against accused persons. Criminal intimidation has been defined u/s 503 IPC which is punishable u/s 506 part (I) & (II) of IPC. The necessary ingredients of both sections are as under:
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 the execution of such threat, commits criminal intimidation.
Explanation.--A threat to injure the reputation of any deceased person in whom the person threatened is interested, is within this section. Illustration A, for the purpose of inducing B to desist from prosecuting a civil suit, threatens to burn B's house. A is guilty of criminal intimidation.
506. 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 cause death or grievous hurt, etc.--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 1[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.
FIR No. 61/2011 State vs. Riyazuddin etc. 35/37 In view of the above said section, it is clear that any intimidation to cause death or grievous hurt to anyone is definitely covered by section 503 IPC which is punishable u/s 506 (II) of IPC. In fact, criminal intimidation must have caused an alarm to the person intimidated that he / she may be killed by the intimidators or may be subjected to any death/ hurt / injury to property/ reputation and such alarm is sufficient to prove the guilt of the intimidator.
44. In the present case, testimony of PW1 Hazi Umar has proved that the accused namely Riyazuddin threatened him by stating that "Asgar tu hat ja, ise jaan se hi mar deta hu", whereas co-accused Asgar Ali flipped a knife towards him. Both the accused fled away when police reached there, but still they extended threats that they will not spare them alive next time. This testimony of PW1 has duly proved that the threats of the both accused was coupled with flipping of knife as well as assault and such life threats definitely cause alarm to him that he might be killed by the accused persons. Not only this, PW1 was intimidated earlier also by the accused persons against which he lodged a criminal complaint. He along with his brother went to attend that complaint in PS when accused assaulted him. This assault has proved that PW1 was well alarmed by this intimidation and both the accused namely Riyazuddin and Asgar Ali are liable for this offence u/s 506(II)/34 IPC. The testimony of PW1 is sufficient to prove this fact, as single witness is sufficient to prove a fact in terms of section 134 of Evidence Act. However, testimony of PW1 is not clear about the involvement of any other accused in this intimidation like his testimony qua wrongful restraint, due to other accused are not liable u/s 506 with the help of section 34 IPC and they are acquitted.
FIR No. 61/2011 State vs. Riyazuddin etc. 36/37
45. Keeping in view of the facts and circumstances of the case, accused persons namely Mainuddin, Ikram and Aminuddin are hereby convicted under section 323/341/34 IPC, whereas accused Riyazuddin and Asgar Ali are convicted u/s 323/341/506(II)/34 IPC.
Announced in open court (Devender Kumar)
today on 05.03.2022 Additional Sessions Judge-02
(NE): Karkardooma Courts, Delhi
FIR No. 61/2011 State vs. Riyazuddin etc. 37/37