Delhi District Court
State vs . Mohd Guljar on 17 April, 2018
IN THE COURT OF SH. KAPIL KUMAR
METROPOLITAN MAGISTRATE05, CENTRAL,
TIS HAZARI COURTS, DELHI
CIS No. 293152/16
State Vs. Mohd Guljar
FIR No. 149/04
PS. Hauz Qazi
U/s. 323/325/341/34 IPC
JUDGMENT
1) The date of commission of offence : 21.06.2004
2) The name of the complainant : Mohd Kasif
3) The name & parentage of accused : 1. Mohd Guljar
S/o. Sh Chand Khan
R/o. H.no. 3827,
Chudiwalan, Delhi.
2. Mustafa Kasif
S/o Mohd Gulzar
R/o H. no. 3827,
Chudiwalan, Delhi.
3. Sadiq @ Bhura
S/o Sh Alimuddin
R/o 2637, Sheer Afzan,
Baradari, Delhi.
4) Offence complained of : 323/325/341/34 IPC
5) The plea of accused : Pleaded not guilty
6) Final order : Convicted U/s 325/34
IPC.
7) The date of such order : 17.04.2018
Date of Institution : 28.03.2005
Judgment reserved on : 26.03.2018
Judgment announced on : 17.04.2018
THE BRIEF REASONS FOR THE JUDGMENT:
1) The case of prosecution against the accused persons is that on
21.06.2004at about 9:30 PM in front of H. no. 3827, Chudiwalan, Hauz Qazi, Delhi within the jurisdiction of PS Hauz Qazi all of them in furtherance of their common intention caused grievous injury to the complainant Mohd Kasif and simple injuries to the brother of complainant namely Mohd Yaman. It is further alleged by the prosecution against the accused Mohd Gulzar that he wrongfully restrained the complainant and his brother on the abovementioned date, time and place.
2) After completion of investigation, charge sheet was filed against the accused persons. In compliance of Sec. 207 Cr.PC, documents supplied to the accused persons. Arguments on point of charge were heard. Vide order dated 18.11.2011, a charge u/s. 323/325/34 IPC was framed upon the accused persons, to which they pleaded not guilty and claimed trial. On that day a separate notice for the offence U/s 341 IPC was served upon the accused Mohd Gulzar to which he pleaded not guilty and claimed trial.
3) In support of its case, prosecution has examined seven witnesses. Statement of accused persons were recorded under section 313 r/w 281 (1) Cr.P.C in which they denied all the allegations and did not wish to lead DE.
4) I have heard the arguments of Ld. APP for State and Ld. Counsel for accused. I have also perused the record carefully.
5) The testimony of prosecution witnesses is being touched upon, in brief, as follow: Eye Witnesses.
5.1 PW1/Complainant Mohd Kasif and PW2 Yaman deposed on the same lines that on 21.06.2004 they were going to the house of their maternal aunt by their scooter. There a child was coming from the side of scooter and was hitting the scooter. That child was asked not to do so. There accused Gulzar restrained them and on the call of accused Gulzar other accused persons Kasif and Sadif came there and beaten PW1 and PW2. PW1 and PW2 correctly identified accused persons. Previous complaint of the complainant was proved as Ex.PW1/A. Witnesses to the investigation.
5.2 PW4 SI Balbir and PW6 ASI Yashpal deposed on the same lines that on 21.06.2004 after receiving DD no. 46 B Ex.PW4/A, they reached at JPN Hospital and from there MLC no. 76791 was collected. Statement of complainant/injured Ex.PW1/A was recorded. On 23.06.2004 rukka was prepared and FIR got registered. Site plan Ex.PW2/A was prepared. Statement of witnesses were recorded. Accused persons were arrested and personally searched. Investigation was completed and chargesheet was filed.
Doctor.
5.3 PW7 Sanjeev Kumar Record Clerk from LNJP Hospital proved the MLC no. 76791 of injured Kasif as Ex.PW7/A. Formal Witnesses.
5.4 PW3 HC Sumer Singh proved the present FIR as Ex.PW4/A. 5.5 PW5 ASI Jai Bhagwan deposed that on 21.06.2004 at about 10:10 PM a patient Kasif reached at JPN Hospital and he got his MLC prepared.
6) It is the cardinal principle of criminal justice delivery system that the prosecution has to prove the guilt of the accused persons beyond reasonable doubts. No matter how weak the defence of accused is but the golden rule of the criminal jurisprudence is that the case of prosecution has to stand on its own legs.
7) The complainant of the present case Mohd Kasif who was examined as PW1 by the prosecution deposed on oath that on 21.06.2004 he along with his brother Mohd Yaman was going to house of his maternal aunt at Bali Maran on his scooter bearing registration no. DL 6ST 1965. He deposed that when they reached near Chudiwalan a child aged around 7 years was coming from the side of scooter on a bicycle and that child was hitting his scooter again and again by his bicycle. He deposed that he asked that child to ride the bicycle properly and that child replied that he should give that advice to his father. He further deposed that accused Guljar was sitting outside his house situated at Chudiwalan Chowk and he stopped them when that child said something to him. PW1 deposed that he complained about the conduct of child but accused Guljar did not pay any heed to the same. PW1 deposed that he was pushed by accused Guljar which was resisted by him and in that process accused Guljar fell down on the road. He deposed that accused Guljar called his associate Bhura and Kasif to the spot who were accompanied 78 unknown persons. He deposed that accused Kasif hold his hands and accused Bhura gave 23 punch blows on his face for which he suffered fracture on his nose. He deposed that he went to Irwin Hospital and police recorded his statement. Witness deposed that his mobile phone and his gold chain was also lost during the aforesaid incident.
8) PW1 was crossexamined on behalf of accused persons. In the crossexamination nothing came on record which could suggest that PW1 falsely implicated the accused persons. The testimony of PW1 qua the entire incident remained unshaken during the crossexamination. No reason came up in the crossexamination which could be the motive of PW1 to falsely implicate accused persons. No reason has been mentioned by the Ld Defence Counsels even in the final arguments as to why the complainant or his brother would falsely implicate accused persons.
9) At this stage the testimony of PW2 Mohd Yaman who is the brother of complainant is to be appreciated. PW2 also deposed that on the day of incident he along with his brother Mohd Kasif were going to the house of his maternal aunt at Balimaran and when they reached near Chudiwalan a child aged 78 years was riding a bicycle in a Zig Zag manner in front of their scooter. That child was asked to get aside but that child replied that this advice should be given to his father. He deposed that accused Guljar who was sitting outside the shop came to the spot and asked as to what happen. The conduct of the child was brought to his notice to which accused Guljar starting abusing them. He deposed that accused fell down when he was resisted. Accused Guljar called Bhura and Kasif to the spot. He deposed that accused Kasif hold hands of his brother while accused Bhura hit his brother on his face by punch. He deposed that he was also beaten by unknown persons and he also suffered internal injuries.
10) The testimony of PW1 and PW2 corroborate to each other that they were going to Balimaran on a scooter where a child who was riding a cycle troubled them. That child was asked not to do so and thereafter a quarrel took place between the parties. Accused Gulzar pushed PW1 in the retaliation of which accused Gulzar was pushed and he fell down on the road. Accused Gulzar shouted to call accused persons Bhura and Kasif at the spot. Both Bhura and Kasif came at the spot and thereafter accused Kasif hold hands of the complainant and accused Bhura gave twothree punch blows on the face of complainant for which complainant suffered fracture on his nose. The testimony of PW1 and PW2 is consistent and there is no material contradiction in their testimony qua the beatings given to the complainant. The conduct of accused persons while beating complainant that makes out common intention on their part to cause grievous injuries to the complainant. It is well settled law that common intention can be developed at the spot also. In the present case accused Guljar called accused persons Mustafa Kasif and Sadiq @ Bhura and thereafter complainant was beaten up. This proves common intention on the part of accused persons.
11) Ld Defence Counsel while arguing stressed upon the fact that PW1 deposed in the crossexamination that he had identified both the accused persons in the court and any of the assailants were not shown to him during the investigation. It is argued that accused persons were not known to the complainant and not arrested at the spot and thus there was requirement of judicial TIP in the present case for ascertaining the identity of accused persons. In cases where the accused persons not known to victim prior to the incident and accused persons not arrested at the spot, TIP of the accused persons gains vital importance because it furnishes to the investigating agency an assurance that investigation is proceedings on right line in addition to furnishing corroboration to the testimony to be given by the witness during the trial. However, it is required to be appreciated as to whether failure to hold such TIP, ispo facto, prove to be fatal for the case of prosecution or not. Hon'ble High Court of Delhi in judgment titled as Saleem @ Nazu Vs State Criminal Appeal no. 976/12, decided on 20.09.2013 considered the aspect of not holding of judicial TIP. It is required to extract the relevant observation as under "19. Since the judgment in Kanta Prashad v. Delhi Admn. AIR 1958 SC 350 , it is well settled that the purpose of holding Test Identification Parade is to test the statement of a witness made in the Court. The TIP which belongs to the investigation stage is conducted to assure the investigating agency that the investigation is proceeding in the right direction. A three Judge Bench of the Supreme Court in Sheikh Hasib v. State of Bihar (1972) 4 SCC 773 reiterated that it is only the identification of the accused in the Court which is a substantive evidence and the TIP is held during investigation to minimize the chances of memory to identifying witnesses fading away due to long lapse of time. In Dana Yadav v. State of Bihar AIR 2002 SC 3325, the Supreme Court culled out certain exceptions to the ordinary rule that identification of an accused for the first time in the Court is a weak type of evidence. Relying on State of Maharashtra v. Sukhdev Singh & Anr. (1992) 3 SCC 700 and Ronny @ Ronald James Alwaris v. State of Maharashtra (1998) 3 SCC 625 , the Supreme Court noticed that where the witness had a chance to interact with the accused or where the witness had an opportunity to notice the distinctive features of the accused which lends assurance to his testimony in the Court, the evidence of identification in the court for the first time by such witnesses cannot be thrown away merely because any identification parade was not held. In the latest judgment of the Supreme Court in Kunjumon @ Unni v. State of Kerala 2012 (11) SC 212 relied upon by the learned APP while referring to its earlier judgments in Malkhan Singh v. State of Madhya Pradesh (2003) 5 SCC 746; Vijay @ Chinee v. State of Madhya Pradesh (2010) 8 SCC 191 and State of Himachal Pradesh v. Lekh Raj & Anr. (2000) 1 SCC 247, the Hon'ble Supreme Court observed that mere failure to hold a TIP is not fatal to the prosecution case but the Trial Judge will need to be circumspect in accepting the identification of an accused by a witness in the Court if the accused is a stranger to the witness. The Supreme Court, therefore, relied upon the identification of the accused by the witness for the first time in the Court where the witness and the culprit were face to face. Paras 22 to 26 of the report are extracted hereunder: "22. A more useful and elaborate discussion on the subject is to be found in Malkhansingh v. State of Madhya Pradesh, (2003) 5 SCC 746 where the TIP is linked to the requirement of Section 9 of the Evidence Act, 1872 and coupled with the caution that in the absence of a TIP, the weight to be attached to the identification of the accused in Court is a matter for the courts of fact to decide.
23. Similarly, in Vijay @ Chinee v. State of Madhya Pradesh, (2010) 8 SCC 191after a discussion on the subject, it was concluded that, "... ... the test identification is a part of the investigation and is very useful in a case where the accused are not known beforehand to the witnesses. It is used only to corroborate the evidence recorded in the court. Therefore, it is not substantive evidence. The actual evidence is what is given by the witnesses in the court."
It was noted in Vijay
with reference to State of Himachal
Pradesh v. Lekh Raj, (2000) 1 SCC 247 that the holding of a TIP is "a rule of prudence which is required to be followed in cases where the accused is not known to the witness or complainant."
24. We have gone into some detail on this issue because of the unfortunately cursory manner in which the matter has been dealt with by the Trial Judge and the High Court.
25. The sum and substance of the various decisions referred to above and others on the same lines is that the failure to hold a TIP is not fatal to the case of the prosecution, but the Trial Judge will need to be circumspect in accepting the identification of an accused by a witness in Court if the accused is a stranger to the witness.
26. In the present case, we are not dealing with the evidence of any ordinary witness we are dealing with a victim of a crime, someone who was directly at the receiving end of the actions of the appellant and who came face to face with the threat and intimidation by the appellant. The evidence of such a victim of a crime must be placed, in our opinion, on a somewhat higher pedestal, in terms of the credibility attached to it, than the evidence of any other witness. We need to seriously consider a partial shift in focus in the "proper administration of justice"
by including not only the "life and liberty of an accused" but issues of victimology and the treatment of victims. Theories concerning criminal law and the administration of criminal justice are fast developing and we need to keep up with these developments."
12) The importance of holding TIP was highlighted by the Supreme Court in to judgment of Dana Yadav(Supra). In para 6 to 8, the Supreme Court held as under:
"6. It is also well settled that failure to hold test identification parade, which should be held with reasonable dispatch, does not make the evidence of identification in court inadmissible, rather the same is very much admissible in law. Question is, what is its probative value? Ordinarily, identification of an accused for the first time in court by a witness should not be relied upon, the same being from its very nature, inherently of a weak character, unless it is corroborated by his previous identification in the test identification parade or any other evidence. The purpose of test identification parade is to test the observation, grasp, memory, capacity to recapitulate what a witness has seen earlier, strength or trustworthiness of the evidence of identification of an accused and to ascertain if it can be used as reliable corroborative evidence of the witness identifying the accused at his trial in court. If a witness identifies the accused in court for the first time, the probative value of such uncorroborated evidence becomes minimal so much so that it becomes, as a rule of prudence and not law, unsafe to rely on such a piece of evidence. We are fortified in our view by a catena of decisions of this Court in the cases of Kanta Prashad v. Delhi Admn. AIR 1958 SC 350 .
7. Apart from the ordinary rule laid down in the aforesaid decisions, certain exceptions to the same have been carved out where identification of an accused for the first time in court without there being any corroboration whatsoever can form the sole basis for his conviction. In the case of Budhsen [(1970) 2 SCC 128 : 1970 SCC (Cri) 343] it was observed:
There may, however, be exceptions to this general rule, when for example, the court is impressed by a particular witness, on whose testimony it can safely rely, without such or other corroboration."
8. In the case of State of Maharashtra v. Sukhdev Singh [(1992) 3 SCC 700 : 1992 SCC (Cri) 705 ] it was laid down that if a witness had any particular reason to remember about the identity of an accused, in that event, the case can be brought under the exception and upon solitary evidence of identification of an accused in court for the first time, conviction can be based. In the case of Ronny [(1998) 3 SCC 625 : 1998 SCC (Cri) 859] it has been laid down that where the witness had a chance to interact with the accused or that in a case where the witness had an opportunity to notice the distinctive features of the accused which lends assurance to his testimony in court, the evidence of identification in court for the first time by such a witness cannot be thrown away merely because no test identification parade was held. In that case, the accused concerned had a talk with the identifying witnesses for about 7/8 minutes. In these circumstances, the conviction of the accused, on the basis of sworn testimony of witnesses identifying for the first time in court without the same being corroborated either by previous identification in the test identification parade or any other evidence, was upheld by this Court. In the case of Rajesh Govind Jagesha[(1999) 8 SCC 428 : 1999 SCC (Cri) 1452] it was laid down that the absence of test identification parade may not be fatal if the accused is sufficiently described in the complaint leaving no doubt in the mind of the court regarding his involvement or is arrested on the spot immediately after the occurrence and in either eventuality, the evidence of witnesses identifying the accused for the first time in court can form the basis for conviction without the same being corroborated by any other evidence and, accordingly, conviction of the accused was upheld by this Court. In the case of State of H.P. v. Lekh Raj [(2000) 1 SCC 247 : 2000 SCC (Cri) 147] it was observed that ".....test identification is considered a safe rule of prudence to generally look for corroboration of the sworn testimony of witnesses in court as to the identity of the accused who are strangers to them. There may, however, be exceptions to this general rule, when, for example, the court is impressed by a particular witness on whose testimony it can safely rely without such or other corroboration".
In that case, laying down the aforesaid law, acquittal of one of the accused by the High Court was converted into conviction by this Court on the basis of identification by a witness for the first time in court without the same being corroborated by any other evidence. In the case of Ramanbhai Naranbhai Patel [(2000) 1 SCC 358 : 2000 SCC (Cri) 113] it was observed:
"It, therefore, cannot be held, as tried to be submitted by learned counsel for the appellants, that in the absence of a test identification parade, the evidence of an eyewitness identifying the accused would become inadmissible or totally useless; Whether the evidence deserves any credence or not would always depend on the facts and circumstances of each case."
The Court further observed "....the fact remains that these eyewitnesses were seriously injured and they could have easily seen the faces of the persons assaulting them and their appearance and identity would well remain imprinted in their minds especially when they were assaulted in broad daylight". In these circumstances, conviction of the accused was upheld on the basis of solitary evidence of identification by a witness for the first time in court."
13) Taking note of various aforereferred pronouncements and other related aspects on the issue of TIP, following propositions can be safely culled out:
a) Test identification parade (TIP) is a part of the investigation and is very useful in a case where the accused are not known beforehand to the witnesses. It assures the investigating agency that the investigation is proceeding in the right direction. TIP is held during investigation to minimize the chances of memory to identifying witnesses fading away due to long lapse of time.
b) Identification of the accused in the Court is a substantive evidence. The previous identification in the test identification parade is a rule of prudence and not law. It simply acts as a check valve to the evidence of identification in court of an accused by a witness.
c) Absence of test identification parade is not ipso facto fatal.
d) If the accused is named or sufficiently described in the complaint leaving no doubt in the mind of the court regarding his involvement, such identification for the first time before court can be safely considered.
e) If an accused is well known to the prosecution witnesses from before, no test identification parade is called for and it would be meaningless and sheer waste of public time to hold the same.
f) It should be made clear by the prosecution and investigating agency, during investigation itself, that any such witness is in a position to identify any such accused. Absence of any such assertion would put the court on guard.
g) Mere failure to hold a TIP is not fatal to the prosecution case all by itself but the court will need to be circumspect in accepting the identification of an accused by a witness in the Court if the accused is a stranger to the witness.
h) Where the witness had a chance to interact with the accused or where the witness had an opportunity to notice the distinctive features of the accused which lends assurance to his testimony in the Court, the evidence of identification in the court for the first time by such witnesses cannot be thrown away merely because any identification parade was not held.
i) Substantive evidence of identification in Court after a long lapse of time may be a weak piece of evidence in absence of previous TIP. However, even such evidence can be admitted if sufficiently explained and corroborated.
j) Whether the evidence deserves any credence or not would always depend on the facts and circumstances of each case. It will be also important to see whether the incident had taken place in broad day light, fading light or in the dark.
k) A witness, who also receives injuries and who had a chance to see the faces of the offenders, would be an important aspect as identity would well remain imprinted in his mind.
14) Considering the abovementioned propositions which we got after appreciation of judicial precedents it could be said that in the present case the nonholding of judicial TIP of the accused persons is not fatal to the case of prosecution. Here the material witnesses(PW1 and PW2) are not ordinary witnesses rather they are victims of crime and they were directly at the receiving end of acts of accused persons. Their testimony is at higher pedestal in terms of the credibility attached to it. PW1 and PW2 had ample opportunity to notice the distinctive features of the accused persons which lands assurances to their testimony in the court. The identification of accused persons by PW1 and PW2 cannot be thrown out merely because the identification prayed was not held. The substantive evidence i.e the identification of accused persons in the court has more sanctity. Further in the rukka it is clearly mentioned that the old man shouted to ask Bhura and Kasif to came at the spot. The mentioning of names of two accused persons in the rukka and thereafter in the FIR acts as corroboration to the testimony of PW1 and PW2. It is not the case of accused persons that they are not Bhura or Kasif. No suggestion to that effect was put to any of the witnesses. Considering the testimony of PW1 and PW2 which stood the test of crossexamination, the identification of accused persons being offenders of the present case stands established.
15) Now, coming to the notice for the offence U/s 341 IPC which was served upon accused Guljar only. PW1 deposed that he was stopped by accused Guljar but nothing of this sort was deposed by PW2. PW2 deposed that they were asked by accused Guljar as to what happen and thereafter quarrel took place. PW2 not deposed that they were not stopped by accused Guljar. Thus there is material contradiction in the testimony of PW1 and PW2 qua the wrongful restraint caused by accused Guljar. In view of the same this court is of considered opinion that the offence U/s 341 IPC is not proved on record.
16) At this stage the testimony of PW7 Sh Sanjeev is relevant in whose testimony the MLC of injured Kasif was proved as Ex.PW7/A. As per Ex.PW7/A the injured Kasif suffered grievous injuries. The testimony of PW7 remained unchallenged during trial. I found no reason to disbelieve the testimony of PW7 and MLC Ex.PW7/A. In view of testimony of PW 7 and Ex.PW7/A the injured/PW1 Mohd Kasif suffered grievous injuries. There is no medical documents/MLC qua the other alleged injured/PW2 Mohd Yaman and hence this is not proved that PW2 suffered any simple injured as alleged by the prosecution. There was opportunity with the PW2 to get himself medically examined. The nonexamination of PW2 by the doctor is fatal as far as the case of prosecution qua the offence U/s 323 IPC qua the injured Mohd Yaman is considered. However as per Ex.PW7/A and other documents on record it is proved that on 21.06.2004 injured Mohd Kasif suffered grievous injuries.
17) In view of the above discussion it is proved on record that on 21.06.2004 the accused persons namely Mohd Guljar, Mustafa Kasif and Sadiq @ Bhura in furtherance of their common intention caused grievous injuries to the complainant Mohd Kasif in front of H. No. 3827, Chudiwalan, Hauz Qazi, Delhi. Thus the offence U/s 325/34 IPC is proved on record against accused persons. Accordingly, accused persons are hereby convicted for the offence U/s 325/34 IPC. Copy of this judgment be supplied to convicts free of cost.
Be hard on point of sentence.
KAPIL Digitally signed by
KAPIL KUMAR
KUMAR Date: 2018.04.17
16:44:02 +0530
Announced in open court (Kapil Kumar)
on 17.04.2018 MM5/Central District
Tis Hazari Courts/Delhi,