Delhi District Court
State vs Mohd. Hanif And Anr on 13 September, 2023
IN THE COURT OF METROPOLITAN MAGISTRATE-08,
SOUTH-EAST DISTRICT, SAKET COURTS, NEW DELHI
::: JUDGMENT :::
IN THE MATTER OF:
STATE Vs. MOHD. HANIF & ANR.
CR CASE No: 24392/2019 FIR NUMBER: 23/2010 UNDER SECTION: 420/468/471/34 IPC POLICE STATION: JAMIA NAGAR A. CNR No. of the Case : DLSE020414512019 B. Date of Institution : 21.09.2019 C. Date of Commission of : 11.06.2009 Offence D. Name of the Complainant : Sh. Rais Ahmad, S/o Sh. Shakeel Ahmad, R/o H. No. 494/22, Jakir Nagar, Jamia Nagar, New Delhi E. Name of the Accused, his : (1) Mohd. Hanif, S/o Lt. Sh. Peeru @ Parentage & Addresses Peera, R/o H. No. 296, First Floor, Gali No. 17, near Umar Masjid, Zakir Nagar, Jamia Nagar, New Delhi (2) Shahzad Alam, S/o Sh. Qadeer Ahmad, R/o Mohalla Faridganj, Kasba Umri Kalan, PS Kanth, District Moradabad, UP F. Offence complained of : 420/468/471/34 IPC G. Plea of the Accused : Pleaded not guilty and claimed trial H. Judgment reserved on : 11.08.2023 I. Date of Judgment : 13.09.2023 J. Final Order : Acquitted ACCUSED DETAILS:Rank of the accused 1 2
Name of the accused Mohd. Hanif Shahzad Alam Date of Arrest Not arrested Not arrested Date of release on Bail - --
Offence charged with 420/468/471/34 IPC 420/468/471/34 IPC Whether Acquitted/ Acquitted Acquitted convicted FIR No. 23/2010 State Vs. Mohd. Hanif & Anr Page No.1/11 Sentence Imposed -- Period of detention -- undergone during trial (for section 428 CrPC) LIST OF PROSECUTION WITNESS: Sr.No. Name of the Witness 1 Sh. Munir Ahmed 2 Sh. Rahat Jaan 3 ACP Ravinder Kumar Rajput
LIST OF DOCUMENTS (PROVED BY THE PROSECUTION):
Sr. No. Description of documents Exh. No. 1 Notice dated 04.03.2021 given to accused Mohd. Ex. PW3/A Hanif u/s 41 (A) CrPC 2 Notice dated 15.02.2021 given to accused Mohd. Ex. PW3/B Hanif u/s 41 (A) CrPC 3 Notice dated 10.03.2021 given to accused Mohd. Ex. PW3/C Hanif u/s 41 (A) CrPC 4 Notice dated 08.04.2021 given to accused Mohd. Ex. PW3/D Hanif u/s 41 (A) CrPC 5 Notice dated 08.04.2021 given to accused Shahzad Ex. PW3/E Alam u/s 41 (A) CrPC 6 Notice dated 10.03.2021 given to accused Shahzad Ex. PW3/F Alam u/s 41 (A) CrPC 7 Notice dated 08.04.2021 given to Ms Shahana Ex. PW3/G Khatoon u/s 91 CrPC 8 Notice dated 23.10.2021 given to Rani Ridha Ex. PW3/H (Notary ADV) u/s 91 CrPC No. 413/N/DIU/SED/New Delhi 9 Notice dated given to Rani Ridha (Notary ADV) Ex. PW3/I u/s 91 CrPC No. 411/N/DIU/SED/New Delhi 10 Notice dated 23.10.2021 given to Sunita Rani u/s 91 Ex. PW3/J CrPC 11 Notice dated 02.11.2020 to Rahis Ahemad u/s 91 Ex. PW3/K CrPC 12 Notice dated 06.11.2020 to Rahis Ahemad u/s 91 Ex. PW3/L CrPC 13 Notice dated 23.11.2020 to Rahis Ahemad u/s 91 Ex. PW3/M CrPC 14 Notice dated 02.11.2020 to Naeem Malik u/s 91 Ex. PW3/N CrPC 15 Notice dated 18.11.2020 to Mohd. Zakir u/s 91 Ex. PW3/O CrPC 16 Notice dated 08.04.2021 to Mohd. Zakir u/s 91 Ex. PW3/P CrPC 17 Notice dated 16.10.2021 to Mohd. Zakir u/s 91 Ex. PW3/Q CrPC 18 Notice dated 21.10.2021 to Mohd. Zakir u/s 91 Ex. PW3/R CrPC 19 Notice dated 23.10.2021 to Mohd. Zakir u/s 91 Ex. PW3/S FIR No. 23/2010 State Vs. Mohd. Hanif & Anr Page No.2/11 CrPC 20 Notice dated 18.11.2019 to Mohd. Hanif u/s 91 Ex. PW3/T CrPC 21 Notice dated 23.11.2020 to Mohd. Hanif u/s 91 Ex. PW3/U CrPC 22 Notice dated 16.10.2021 to Mohd. Hanif u/s 91 Ex. PW3/V CrPC 23 Notice dated 23.10.2021 to Mohd. Hanif u/s 91 Ex. PW3/W CrPC 24 Notice dated 18.11.2020 to Munabbar Azam u/s 91 Ex. PW3/X CrPC 25 Notice dated 23.11.2020 to Munabbar Azam u/s 91 Ex. PW3/Y CrPC 26 Notice dated 18.11.2020 to Shazad Alam u/s 91 Ex. PW3/Z CrPC 27 Notice dated 16.10.2021 to Shazad Alam u/s 91 Ex. PW3/Z1 CrPC 28 Letter Ex. PW3/Z2 DEFENCE WITNESS: NONE LIST OF DOCUMENTS (PROVED BY DEFENCE): NA Factual Background:
1. FIR in this case was registered by order of this court dated 16.01.2010. Briefly stated, the case of the prosecution against the accused persons is that Complainant Rais Ahmad Siddiqui, S/o Sh. Shakeel Ahmed is the resident of H. No. H-45/44 Zakir Nagar, Okhla, New Delhi. Complainant informed that accused Mohd. Hanif is resident of the same locality and are known to each other. On 11.06.2009, accused Mohd. Hanif along with Sh.
Munnabar came to the house of the complainant and made an offer for sale of a shop no. H-105/8 situated at Syed Road, Batla House for consideration of Rs. 4 lacs with an assurance that he will get it sold to Sh. Munnabar at total consideration of Rs. 5.25 lacs as currently Sh Munnabar is not having sufficient money and will buy it within next month. As a result of their inducement, complainant paid them Rs. 4 lacs and purchased the said property by executing a power of attorney and Md. Hanif handed over the original GPA of the said shop. Complainant also informed that accused persons fraudulently and dishonestly used fake FIR No. 23/2010 State Vs. Mohd. Hanif & Anr Page No.3/11 document and signature on document of above said property/GPA as a genuine document and also forged the aforesaid assurance. However, closure report was filed by the IO stating that complainant has compromised the matter with the accused persons and documents pertaining to property in question could not be obtained during investigation. On 09.11.2021, supplementary charge-sheet u/s 420/34 IPC was filed against the accused Mohd. Hanif and Shahzad Alam with the request that appropriate action shall be taken on apprehension of another accused namely Munabbar Azam. Accordingly, accused persons namely Mohd. Hanif and Shahzad Alam were sent for trial.
Court Proceedings:
2. The Ld. Predecessor took cognizance of the offence on 18.11.2021 and issued process against the accused Mohd. Hanif and accused Shahzad Alam. Pursuant to the appearance of the accused, they were supplied with the copy of chargesheet in compliance of Section 207 CrPC.
Charge:
3. Upon hearing the arguments, vide order dated 02.03.2023, charge under Section under section 420/468/471/34 IPC was ordered to be framed against both the accused. The accused persons pleaded not guilty and the matter was listed for Prosecution Evidence ('PE'). In PE complainant was summoned for evidence but a report was received that he was expired on 09.12.2022.
Prosecution Evidence:
4. In order to establish its case against the accused persons, prosecution examined 3 witnesses namely Munir Ahmed ('PW1'), Rahat Jaan ('PW2') and ACP Ravinder Kumar FIR No. 23/2010 State Vs. Mohd. Hanif & Anr Page No.4/11 ('PW3').
5. PW1/ Munir Ahemad has deposed that about 10 years back, Mohd. Hanif entered into a formal agreement to with regards to sale of the shop which was located at H-105/8 Batla House New Delhi for the price of Rs. 4,00,000/- of which advance was paid to the tune to Rs.100,000/-. After few days, dispute arose between Raees Ahemad and Mohd. Hanif.
Thereafter it was informed by Mohd. Hanif himself that Raees Ahemad has entered into a compromise and now there is no more dispute between them.
6. During cross examination, PW1 has admitted that no formal agreement was executed in front of him. He voluntarily deposed that Rs.100000/- was given in front of him.
7. PW2/ Rahat Jaan deposed that about 10 years back, he witnessed that one Munir Ahemad and Raees Ahemad entered into a formal agreement to buy a shop for the price of Rs. 400000/- of which advance was paid to the tune to Rs.100000/-. After few days a dispute arose between Raees Ahemad and Mohd. Hanif. Mohd. Hanif claimed ownership of the shop and disputed the title of Raees Ahemad and Munir Ahemad. Thereafter it was informed by Raees Ahemad himself that Mohd. Hanif and Raees Ahemad have entered into a compromise and now there are no more dispute between them.
8. During cross examination, PW1 has admitted that no formal agreement was executed in front of him. He voluntarily deposed that Rs.100000/- was given in front of him.
9. PW3 ACP Ravinder Kumar Rajput deposed that in the year 2020, he was posted as Insp at PS DIU South-East District. On the direction of Senior officer further investigation of this case was transferred to him. He examined the complainant and FIR No. 23/2010 State Vs. Mohd. Hanif & Anr Page No.5/11 the witnesses with regards to facts of the case. He deposed that he came to know that accused Mohd. Hanif and Shahzad Alam were involved in commission of crime but their whereabout could not be known hence, he tried to trace them. Munnwar Azam could not be found however accused Mohd. Hanif and Shahzad Alam were traced and given a notice u/s 41 (A) Cr.P.C. Accused Mohd Hanif was given notice by him u/s 41 (A) Cr.P.C. vide notice dated 04.03.2021,15.02.2021, 10.03.21 and 08.04.21 it is being identified as Ex. PW3/A, Ex. PW3/B and Ex. PW3/C PW3/D respectively bearing his signature at point A. Accused Shahzad Alam was given notice by him u/s 41 (A) Cr.P.C. vide notice dated 08.04.21and10.03.21 it is being identified as Ex. PW3/E, Ex. PW3/F respectively bearing his signature at point A. PW3 deposed that he also gave notice u/s 91 Cr.PC to Ms. Shahana Khatoon who was the then present owner of the disputed property vide notice dated 08.04.2021 it is identified as Ex.PW3/G bearing his signature at point A. He deposed that Ms. Shahana Khatoon in compliance to notice u/s 91 Cr.PC produced photo copy of the dossier with regards to chain of ownership/possession which is as marked A (colly) from page 35 to 147. She also told him that she will bring the original in court if demanded. PW3 gave notice to Rani Ridla (Notary ADV) vide notice u/s 91 Cr.PC No. 413/N/DIU/SED/New Delhi dated 23.10.21 with regards to verification of the document annexed notice is being identified as Ex.PW3/H bearing his signature at point A. PW3 also gave one more notice to Rani Ridla (Notary ADV) vide notice u/s 91 Cr.PC No. 411/N/DIU/SED/New Delhi dated 23.10.21 same is being identified as Ex.PW3/I bearing his signature at point A. He gave notice to Sunita Rani (Stamp vendor) vide notice u/s 91 Cr.PC No. 412/N/DIU/SED/New Delhi dated 23.10.21 with FIR No. 23/2010 State Vs. Mohd. Hanif & Anr Page No.6/11 regards to verification of the document annexed notice is being identified as Ex.PW3/J bearing his signature at point A (colly). He further gave notice to Rahis Ahemad vide notice u/s 91 Cr.PC vide (1) No. 210/N/DIU/SED/New Delhi dated 02.11.20; is now Ex. PW3/K, bearing his signature at point A; (2) No.222/N/DIU/SED/New Delhi dated 06.11.20; is now Ex. PW3/L, bearing his signature at point A; (3) No. 247/N/DIU/SED/New Delhi dated 23.11.20; is now Ex. PW3/M, bearing his signature at point A. He gave notice to Md. Naeem Malik vide notice u/s 91 Cr.PC No. 243/N/DIU/SED/New Delhi dated 02.11.2020, is now Ex. PW3/N, bearing his signature at point A; He further gave notice to Mohd. Zakir vide notice u/s 91 Cr.PC No.(1) 244/N/DIU/SED/New Delhi dated 18.11.20 is now Ex. PW3/O, bearing his signature at point A; (2) 140/N/DIU/SED/New Delhi dated 08.04.21 is now Ex. PW3/P, bearing his signature at point A; (3) 399/N/DIU/SED/New Delhi dated 16.10.21 is now Ex. PW3/Q, bearing his signature at point A; (4) 407/N/DIU/SED/New Delhi dated 21.10.21 is now Ex. PW3/R, bearing his signature at point A; (5) 415/N/DIU/SED/New Delhi dated 23.10.21 is now Ex. PW3/S, bearing his signature at point A; PW3 further gave notice to Mohd. Hanif vide notice u/s 91 Cr.PC No. (1) 236/N/DIU/SED/New Delhi dated 18.11.19 is now Ex. PW3/T, bearing his signature at point A; (2) 249/N/DIU/SED/New Delhi dated 23.11.20 is now Ex. PW3/U, bearing his signature at point A; (3) 398/N/DIU/SED/New Delhi dated 16.10.21 is now Ex. PW3/V, bearing his signature at point A; (3) 414/N/DIU/SED/New Delhi dated 23.10.21 is now Ex. PW3/W, bearing his signature at point A; He gave notice to Munabbar Azam vide notice u/s 91 Cr.PC (1)No. 237/N/DIU/SED/New Delhi dated 18.11.20 is now Ex. PW3/X, FIR No. 23/2010 State Vs. Mohd. Hanif & Anr Page No.7/11 bearing my signature at point A; (2)No. 250/N/DIU/SED/New Delhi dated 23.11.20 is now Ex. PW3/Y, bearing my signature at point A; He gave notice to Shazad Alam vide notice u/s 91 Cr.PC (1) No. 242/N/DIU/SED/New Delhi dated 18.11.20 is now Ex. PW3/Z, bearing his signature at point A; (2) No. 400/N/DIU/SED/New Delhi dated 16.10.21 is now Ex. PW3/Z1, bearing his signature at point A; He also gave letters in order to verify previous involvement of the accused persons in similar or other offences. The letters sent to In-charge, CRO (SCRB), Kamla Market, In-charge, NCRB, Delhi Cantt, New Delhi & MHC(R), PS-Jamia Nagar is Ex. PW 3/Z2 (Colly) containing 5 running pages bearing his signature at point A. Thereafter, he recorded the statement of PWs u/s 161 Cr PC and submitted the chargesheet before the concerned Hon'ble Court.
10. During cross examination, he admitted that previously the matter was submitted as "closure report" before the Hon'ble Court. He deposed that he did not take specimen signatures of the accused Shehzad Alam for comparison and submission to an expert for comparison. He admitted that under notice dated 08.04.21, accused Shehzad Alam have not signed the same in his presence. He did not try to verify the signatures of Shehzad Alam which was contained in a reply to notice dated 08.04.21. He denied that the signatures contained in the reply notice are original and signatures contained in agreement to sell and purchase dated 12.06.2009 are forged. He denied that accused Shehzad Alam only signed in Urdu and cannot sign in any other language. He denied that he is uneducated and illiterate and cannot sign the documents. He admitted that other than complainant no other witness came forward to apprise the police that the signatures were given in their presence. He denied that accused Shehzad Alam has been falsely implicated. He denied FIR No. 23/2010 State Vs. Mohd. Hanif & Anr Page No.8/11 that since accused Shehzad Alam a religious imam and therefore he cannot buy his own house as he resides in a mosque. He denied that accused Shehzad Alam was not an accused from 2010 to 2021. During cross examination, PW3 admitted that once a closure report was submitted by the police in the hon'ble court. He admitted that accused Mohd. Hanif has signed document namely Will Dated 13.06.2019 as a witness under the same. He admitted that no specimen signatures were taken by him. He denied that accused Hanif had no role in commission of crime in this case. He denied that he has been falsely implicated in this case. He denied that accused Hanif cannot sign in English and can only sign in Hindi. He denied that accused Hanif had no role in commission of the crime in this case.
11. Accordingly, vide order dated 02.08.2023, PE was closed.
Statement of the accused u/s 313 CrPC.
12. Since no incriminating evidence had come on record against both the accused implicating them in the present offence, recording of statement u/s 313 CrPC was dispensed with.
Final Arguments:
13. Ld. APP has re-iterated the contents of the chargesheet.
14. Per Contra, Ld. Counsel for defence has submitted that the prosecution has completely failed to prove its case and therefore, the accused persons are liable to be acquitted of the alleged offence.
15. This court has heard the submissions of Ld. APP for State and the Ld. Counsel for accused and carefully perused the judicial record.
Discussion and Analysis:
16. In a criminal trial, the burden of proving everything essential to the establishment of the charge against an accused FIR No. 23/2010 State Vs. Mohd. Hanif & Anr Page No.9/11 always rests on the prosecution and there is a presumption of innocence in favour of the accused until the contrary is proved. Criminality is not to be presumed, subject of course to some statutory exceptions. It was observed in Partap v. State of U.P., A.I.R. 1976 SC 966 that while prosecution is required to prove its case beyond a reasonable doubt, accused can discharge his onus by establishing a mere preponderance of probability. In Vijayee Singh v. State of U.P., 1990(3) S.C.C. 190, it was again held that in criminal cases burden is always is on prosecution and never shifts. In Nasir Sikander Shaikh v. State of Maharashtra, (SC) 2005 Cri.L.J. 2621 and Jarnail Singh v. State of Punjab, (SC) 1996(1) R.C.R.(Criminal) 465 it was held that it is cardinal principle of criminal jurisprudence that an accused is presumed to be innocent and burden lies on prosecution to prove the guilt of accused beyond reasonable doubt. Prosecution is under legal obligation to prove each and every ingredient of the offence beyond any doubt, unless otherwise so provided by the Statute. Accused is not expected to prove his innocence to the hilt. If prosecution story is doubtful, benefit of doubt must go to the accused.
17. Prosecution witnesses have not proved any incriminating material against the accused persons. PW3/IO/ACP Ravinder Kumar Rajput has proved only official functions rendered by him. He is competent to prove the investigation only but he couldn't prove the incident since he was not present at the place of incident and he is not the eye witness of the alleged offence. Due to non-appearance of the complainant, the commission of offence remained doubtful and there is no material on record to connect the accused with the alleged incident. No evidence was produced to prove forgery. In fact, the witnesses produced by the prosecution proved that complainant and accused had FIR No. 23/2010 State Vs. Mohd. Hanif & Anr Page No.10/11 compromised their disputes.
18. The prosecution has miserably failed to connect the ac- cused to the alleged incident and therefore, remained doubtful on the involvement of the accused in the alleged incident. The case of the prosecution cannot be said to have been proved in any manner.
Decision:
19. Accordingly, accused (1) Md. Hanif S/o Md. Piru and (2) Shahzad Alam S/o Qadeer Ahmad held not guilty and acquitted for the offence punishable under Section 420/34, 471/34 and 468/34 of IPC.
Announced in open (Abhitesh Kumar)
Court today i.e on 13.09.2023 MM-08, (SE) Saket Courts
New Delhi
This Judgment contains eleven pages (11) and all pages bears my signature.
(Abhitesh Kumar) MM-08 (SE): Saket Courts New Delhi: 13.09.2023 FIR No. 23/2010 State Vs. Mohd. Hanif & Anr Page No.11/11