Delhi District Court
Fir No. 102/2016, Ps : Hauz Qazi State vs . Mohd. Javed on 2 September, 2019
FIR No. 102/2016, PS : Hauz Qazi State Vs. Mohd. Javed
IN THE COURT OF MM08 (CENTRAL DISTRICT)
TIS HAZARI COURTS COMPLEX, DELHI.
Presiding Officer: Dinesh Kumar, DJS.
IN THE MATTER OF :
State Vs Mohd. Javed
FIR No. 102/2016
PS : Hauz Qazi
U/s 341/326 IPC
Date of Institution : 11.04.2017
Date of reserving of order : 23.08.2019
Date of Judgment : 02.09.2019
CNR No. DLCT020089942017
JUDGMENT
1. Serial No. of the case : 4291/2017
2. Name of the Complainant : Abdul Samad
3. Date of incident : 21.04.2016
4. Name of accused person :
Mohd. Javed S/o Sh. Shamshul Arfin
R/o H. No. 3821, Gali Hafij Banne
Wali, Churiwalan, Delhi06
5. Offence for which chargesheet
was filed : S. 341/326 IPC
6. Offence for which charge
Page 1 of 21 MM08 (C)/THC/Delhi/02.09.2019
FIR No. 102/2016, PS : Hauz Qazi State Vs. Mohd. Javed
has been framed : S. 341/326 IPC.
7. Plea of accused : Not guilty
8. Final Order : Convicted for offences
punishable under
Section 324/341 IPC.
9. Date of Judgment : 02.09.2019
BRIEF REASONS FOR ORDER:
1. Mohd. Javed, the accused herein, has been charged for committing offence punishable under Section 341/326, Indian Penal Code (45 of 1860) (hereinafter referred to as "IPC").
2. The case of the prosecution is that on 21.04.2016 at about 05:00 p.m., complainant Abul Shamad had reached at House of the accused to demand his money which he had borrowed from the complainant. Some altercation had taken place between the complainant and the accused. While the complainant was returning to his home, the accused came from behind and voluntarily caused injury to the complainant by using some sharp object. On the basis of complaint present FIR was registered. After completion of investigation 'final report' was filed by the Investigation Officer (IO) in the Page 2 of 21 MM08 (C)/THC/Delhi/02.09.2019 FIR No. 102/2016, PS : Hauz Qazi State Vs. Mohd. Javed Court and the accused was chargesheeted for the offence punishable under Section 341/326, Indian Penal Code.
3. After perusing the record, cognizance was taken by Court. Accused appeared in the Court. Compliance of Section 207, Criminal Procedure Code, 1973 (hereinafter referred to as 'Cr.P.C.) was done. After hearing the parties, charge for the offence punishable under Section 341, 326 IPC was framed against the accused. It was read over to him to which he pleaded not guilty and claimed trial.
4. The prosecution has examined as many as 05 witnesses to prove its case against the accused.
5. PW1 Abdul Samad is the complainant. He has deposed that on 26.04.2016, at about 4:005:00 p.m., he had gone to the house of Javed for demanding his money which the accused had borrowed from him. He had borrowed ₹600/ from him about 56 days ago from the date of incident. They had been residing in the same gali of Churiwalan. He had reached at the shop of Javed who was present there. He demanded his aforesaid money from Javed. However, he refused to repay his aforesaid loan.
Page 3 of 21 MM08 (C)/THC/Delhi/02.09.2019FIR No. 102/2016, PS : Hauz Qazi State Vs. Mohd. Javed Some verbal arguments had taken place between them. Javed had refused to repay his loan and thereafter, he started moving towards his house. Immediately, Javed apprehended him from his back side. He was carrying a pointed object (Pyaaz Katne Wali Chhuri) from his aforesaid shop. Javed had given several blows from the aforesaid pointed object to him due to which he sustained various injuries. He became unconscious and somebody had shifted him to the hospital. He was medically examined at the hospital. He had received total 120 stitches upon several parts of his body. His statement was recorded by the IO in the hospital which is Ex. PW1/A.
6. PW2 Dr. Pankaj Dhingra is the doctor who had examined the complainant. He has deposed that on 21.04.2016, injured Samad S/o Sh. Saeed had come at hospital at about 06:07 p.m., with alleged history of physical assault. Thereafter, he prepared a detailed MLC No. EDD17352 which is Ex. PW2/A. Thereafter, he referred the injured patient to surgery, Neuro Surgery and Orthopedic Department.
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7. PW3 Dr. Nikhil Arora is the doctor who had given the opinion on injury. He has depsoed that the injury was grievous in nature.
8. PW4 ASI Ashok Kumar had joined the investigation with the IO. He has deposed that on 21.04.2016, IO ASI Sumer Singh received DD No.29A regarding quarrel at H. No. 3827, Gali Hafiz banne Wali, Churiwalan, Delhi. Thereafter, IO took him at the abovesaid spot. However, no injured was found there. On local inquiry, it was found that the injured was shifted to LNJP Hospital. Thereafter, he alongwith IO reached at LNJP hospital where injured Shamad was under treatment. Thereafter, IO recorded the statement of injured Shamad and prepared rukka. He went to the PS with the original rukka for registration of FIR. He returned at the spot with the original rukka and copy of FIR and handed over the same to IO who was already present at the spot. At the spot, one secret informer informed them that the person who had caused injuries to injured Samad could be apprehended from gali Hafizganj. In the meantime, accused Javed was seen coming from Gali Hafizganj and secret informer pointed towards him. After seeing us, Page 5 of 21 MM08 (C)/THC/Delhi/02.09.2019 FIR No. 102/2016, PS : Hauz Qazi State Vs. Mohd. Javed accused Javed turned back and try to flee away. However, they apprehended him. IO made inquiry from the accused regarding the incident. Thereafter, IO had arrested accused vide memo Ex. PW4/A. Upon inquiry regarding the weapon by the IO, he replied that he had thrown the weapon in garbage dump located in the area of Prem Narayan. Thereafter, IO took the accused alongwith his father at Prem Narayan for recovery of the weapon. However, the weapon could not be recovered. Thereafter, IO had released the accused on police bail after taking surety. IO recorded his statement and discharged him.
9. PW5 Retd. ASI Sumer Singh was the IO. He has deposed that on 21.04.2016, after receiving the information vide DD NO. 29A, he alongwith HC Ashok reached at the spot i.e., Gali Hafiz Banne Wali, Churiwalan. There, he came to know that the injured was already taken to the JPN Hospital. Thereafter, they reached at JPN Hospital. There, victim Abdul Samad was found under treatment. He obtained the MLC. He recorded statement of Abdul Samad which is Ex. PW1/A. He prepared the rukka which at point X to X1 on Ex. PW 1/A. The rukka was handed over to HC Ashok who was Page 6 of 21 MM08 (C)/THC/Delhi/02.09.2019 FIR No. 102/2016, PS : Hauz Qazi State Vs. Mohd. Javed directed go to the PS and to get the FIR registered. He returned at the spot. He made efforts to trace accused Javed, however, he could not be traced at the spot. HC Ashok had also reached at the spot after registration of FIR. After great efforts accused Javed was found in the locality. He made inquiry from him. He had arrested him vide memo Ex. PW4/A. Despite efforts the weapon of offence could not be traced. The accused was released on bail. The MLC was deposited for opinion. The opinion was given by the doctors which was grievous injury. Therefore, Section 326 IPC was added. He made efforts to arrest the accused again. NBWs were obtained against him. He could not be traced. Process under Section 82 Cr.P.C was issued against the accused by the Court. The accused obtained anticipatory bail from the Sessions Court. The accused was formally arrested. His arrest memo is Ex.PW5/A. He was released on bail. He had prepared the challan. However, thereafter, he was retired.
10. The witnesses were cross examined by Ld. Defence Counsel. The accused admitted, under Section 294, Cr.P.C. the registration of FIR No. 102/2016 which is Page 7 of 21 MM08 (C)/THC/Delhi/02.09.2019 FIR No. 102/2016, PS : Hauz Qazi State Vs. Mohd. Javed Ex. A1, the certificate under Section 65B Indian Evidence Act which is Ex. A2, the GD No. 29A PS Hauz Qazi dated 21.04.2016 which is Ex. A3.
11. Accused was examined U/s 313 Cr PC r/w Section 281 Cr. PC. The accused denied the incriminating evidence. He would state that he was falsely implicated in the present case.
12. The accused examined himself as DW1. He has deposed on oath that complainant Samad was his neighbor. He used to demand money from him. He used to beat the accused whenever his demand was not fulfilled. Once he had not paid him money, then he had thrown all the articles of his shop on the road. He had also beaten him in the evening of the same day. He had threatened that he would falsely implicate the complainant and that he would not be able to obtain bail from the Court. Once he had caused injuries on his right hand by using a blade, he had also caused injury on his nose. On the day of incident, the accused had come at his shop and demanded money. He did not pay the money. Thereafter, the accused started abusing him and said that he would falsely Page 8 of 21 MM08 (C)/THC/Delhi/02.09.2019 FIR No. 102/2016, PS : Hauz Qazi State Vs. Mohd. Javed implicate him in a case. He was under intoxication on that day. He had made false complaint against him. He had not beaten him.
13. The accused also examined his father Sh. Samshul Arfin as DW2. He has deposed that complainant Samad is their neighbor. He used to demand money from the accused. The accused had told him that he had taken some money from the complainant which was to be returned. Later on he had come to know that the complainant used to extort money from accused Javed. On the day of incident also, the complainant had come and demanded money from Javed. However, he did not pay money. Thereafter he said that he would see the accused and started making noises in the gali. He had thrown the articles of his shop and left the spot. He had threatened the accused to falsely implicate in a criminal case. He had hit the accused with a chhuri.
14. Both the witnesses were crossexamined by Ld. APP. Thereafter, matter was fixed for final arguments.
15. Ld. APP for the State would argue that the prosecution has proved its case beyond reasonable doubts.
Page 9 of 21 MM08 (C)/THC/Delhi/02.09.2019FIR No. 102/2016, PS : Hauz Qazi State Vs. Mohd. Javed It has been proved that the accused was involved in the incident. He was identified by the complainant. MLC has been proved by the prosecution. DW1 and DW2 are interested witnesses. They have deposed falsely to save the accused. Hence, the prosecution has proved all the ingredients of the offences punishable under Section 341 & 326 IPC and the guilt of the accused has been proved beyond reasonable doubts. Hence, it is prayed, the accused may be convicted.
16. Ld. Defence counsel, on the other hand, would argue that the prosecution has failed to prove its case against the accused beyond reasonable doubts. There are various contradictions in the testimonies of the witnesses of the prosecution. The accused has been falsely implicated. He was not involved in any such incident. It was the complainant who was at fault. The witness who had made the PCR call has not been examined in evidence. As per GD No. 29A which is Ex.A3, a quarrel had taken place at H. No. 3777, Gali Magazine, Churiwalan. However, PW4 ASI Ashok Kumar has stated in his examination that after receiving the information they had Page 10 of 21 MM08 (C)/THC/Delhi/02.09.2019 FIR No. 102/2016, PS : Hauz Qazi State Vs. Mohd. Javed reached at H. No. 3827. This is a material contradiction. Further, in his statement Ex.PW1/A the complainant has stated that his family member had taken him to the hospital. However, in his examination as PW5, he has stated that he had become unconscious and someone had shifted him to the hospital. In his crossexamination, he has stated that one scooty rider had shifted him in the hospital. Thus, the complainant had made contradictory statements at different occasions. It creates reasonable doubts on the testimony of the complainant. DW1 and DW2 have also proved that no such incident had taken place. Hence, it is prayed, the benefit of doubts may be given to the accused and he may be acquitted.
17. I have heard the rival submissions and carefully perused the material available on record.
18. In a criminal case the burden is on the prosecution to prove its case beyond reasonable doubts before the accused is asked to put his defence.
19. In the present case, the accused has been charged for offence punishable under Section 326 & 341 IPC. Section 326, IPC punishes, grievous hurt caused, inter Page 11 of 21 MM08 (C)/THC/Delhi/02.09.2019 FIR No. 102/2016, PS : Hauz Qazi State Vs. Mohd. Javed alia, by instruments of shooting, stabbing, cutting etc. In the present case, the prosecution has to establish that:
1. accused was the person who had attacked the complainant,
2. grievous hurt was caused to complainant,
3. grievous hurt was intended to be caused or there was knowledge that the hurt caused was likely to be grievous,
4. grievous hurt was caused by instrument as mentioned under Section 326, IPC,
5. It was voluntarily caused by the accused.
20. Section 341 IPC provides punishment for wrongful restraint. Section 339 IPC defines wrongful restraint. It provides that if a person voluntarily obstructs any other person so as to prevent that person from proceeding in any direction in which that person has a right to proceed, he commits offence of wrongful restraint.
21. First, I shall decided whether the material on record is sufficient to prove the ingredients of offence punishable under Section 326 IPC. The first condition to prove the said offence is that it must be proved beyond Page 12 of 21 MM08 (C)/THC/Delhi/02.09.2019 FIR No. 102/2016, PS : Hauz Qazi State Vs. Mohd. Javed reasonable doubts that the complainant/victim had suffered grievous hurt. Grievous hurt has been defined under Section 320 IPC which provides total 8 kinds of hurt which are designated as grievous. No other kind of hurt which does not fall within those 8 categories can be called grievous. In the present case the MLC of the victim is Ex. PW2/A. Two witnesses i.e., Dr.Pankaj Dhingra and PW3 Dr. Nikhil Arora had come to prove the said MLC. PW2 Dr. Pankaj Dhingra had prepared the MLC and therefore he has only proved the preparation of the MLC. He had not given any opinion regarding the injury. PW3 Dr. Nikhil Arora has stated that the nature of injury was grievous. However, it is nowhere mentioned as to how the injury was grievous in nature and in which category of Section 320 IPC the said grievous hurt falls. In the MLC, it is mentioned, "nature of injury is grievous from ENT point of view." However, what was the material before the concerned doctor of ENT which was used to reach at such conclusion has not been proved before the Court. Hence, it has remained not proved beyond reasonable doubts that the injury suffered by the victim had fallen in any of the category mentioned under Section 320 IPC. Benefit of Page 13 of 21 MM08 (C)/THC/Delhi/02.09.2019 FIR No. 102/2016, PS : Hauz Qazi State Vs. Mohd. Javed reasonable is given to the accused as per law. Hence, I hold that the prosecution has failed to prove beyond reasonable doubts that the grievous injury was suffered by the victim. The material on record is sufficient to show only that simple injury i.e., hurt was caused to the victim as defined under Section 319 IPC. The prosecution has also alleged that the injury was caused to the complainant by accused by using a sharp object. Section 324 IPC provides punishment for voluntarily causing hurt by means, inter alia, any instrument for shooting, stabbing or cutting.
22. Now, I shall decided whether the prosecution has proved beyond reasonable doubts the ingredients of offence punishable under Section 324 IPC and Section 341 IPC.
23. In the present case the only witness of the alleged incident examined by the prosecution is the complainant Samad himself. PW1 has deposed in his examination in chief that he had gone to the house of the accused to demand his Rs.600/ which the accused had borrowed from him. However, the accused had refused to Page 14 of 21 MM08 (C)/THC/Delhi/02.09.2019 FIR No. 102/2016, PS : Hauz Qazi State Vs. Mohd. Javed pay the amount. When he was returning to his home, the accused had come from behind and gave several blows on his body by using a sharp object (piyaj katne wali chhuri).
24. DW2 Samsul Arafin, father of the accused has also stated in his examination in chief that the complainant used to demand money from the accused. When he had asked the accused about the same, the accused had told him that he had taken money from the complainant which was to be returned. Thus, it is shown on record that at some point of time, the accused had admitted before his father that he had taken money from the complainant. No doubt DW2 has also stated that later on he had come to know that the complainant was extorting money from the accused. However, this part of his testimony does not show as to how he came to know that the complainant used to extort money from the accused. Therefore, this part of his testimony is not believable. Further, the witness has not stated any date in his examination regarding the incident when the complainant was making the noise in the gali and he had hit the articles of his shop with leg blows. It can not be Page 15 of 21 MM08 (C)/THC/Delhi/02.09.2019 FIR No. 102/2016, PS : Hauz Qazi State Vs. Mohd. Javed said for certainty that the witness was talking about the date of incident in question. Similarly DW1 also has not stated any date when he was threatened by the complainant. He has not stated any date when the complainant had caused him injury. Both DW1 and DW2 have made vague averments in their testimony without any dates. Their testimonies are not able to prove, on the balance of probability, that the complainant did not suffer any injuries on 21.04.2016 from the accused as stated by PW1. The law is settled that testimony of an eyewitness and an injured should be believed unless there is specific reason on record to disbelieve him. In Abdul Sayeed vs State of M.P, (2010) 10 SCC 259, the Hon'ble Supreme Court of India, while dealing with the reliability of testimony of injured witness, has held as under:
"The law on the point can be summarised 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 Page 16 of 21 MM08 (C)/THC/Delhi/02.09.2019 FIR No. 102/2016, PS : Hauz Qazi State Vs. Mohd. Javed witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies therein."
25. In the present case also, I do not find any reason to disbelieve the testimony of PW1. Accused Md. Javed in his examination as DW1 has stated that the accused might have been beaten by someone on the relevant day. However, there is no reason as to why the complainant could make false allegations against the accused while allowing the real culprit to go scot free. It is on record that the complainant had suffered injuries. His MLC has been proved beyond reasonable doubts. The injuries are not shown to be self inflicted or inflicted by friendly hands. In these circumstances, I do not find any reason to disbelieve the testimony of the complainant PW
1.
26. I have considered the submissions of Ld. Defence Counsel that there is a discrepancy in the testimony of PW4 regarding the place where he alongwith the IO had reached after receiving the information vide DD No. 29A. Similarly, I have also considered the submissions Page 17 of 21 MM08 (C)/THC/Delhi/02.09.2019 FIR No. 102/2016, PS : Hauz Qazi State Vs. Mohd. Javed that in his statement to the IO which is Ex.PW1/A, the complainant has stated that his family members had taken him to the hospital while in his examination in chief, he has stated that some public persons had taken him to the hospital. However, both these contradictions are not of such a nature so as to make the testimony of the complainant unbelievable. Some minor discrepancies are bound to occur in two statements of persons made by them at two different points of time. However, every discrepancy is not material to disbelieve the testimony of such witness. The nature of contradiction must be such that, in the given circumstances, the entire statement of the witness appears to be unbelievable. The contradiction must be related to material facts. However, both the abovementioned contradictions, however, are not related to material facts of the present case. No contradictory statement of the complainant has come on record regarding incident in question.
27. Ld. counsel for the accused would also argue that in his crossexamination, PW1 has stated that his cousin (mama ka ladka) had reached at the spot who had Page 18 of 21 MM08 (C)/THC/Delhi/02.09.2019 FIR No. 102/2016, PS : Hauz Qazi State Vs. Mohd. Javed tried to rescue him. He has also stated that several other public persons had also gathered at the spot. However, neither his cousin, nor any public persons has been examined by the prosecution. It has been argued that these circumstances create reasonable doubts on the case of the prosecution.
28. I have considered the submissions. However, I do not find any merits in it. Section 134, Indian Evidence Act, provides that no particular number of witnesses shall in any case be required for the proof of any fact. The Hon'ble High Court of Delhi in Raja Vs. State (1997) 2 Crimes 175 (Delhi) has observed that reliance can be based on a solitary statement of the witness if the Court comes to the conclusion that the said statement is the true and correct version of the case of the prosecution. It has been held that the Courts are concerned with the merits of the statement of a particulars witness and not with the number of witnesses examined by the prosecution. It is the quality of the evidence and not the quantity of the evidence which is required to be judged by the Court to place credence on the statement. In the present case also, Page 19 of 21 MM08 (C)/THC/Delhi/02.09.2019 FIR No. 102/2016, PS : Hauz Qazi State Vs. Mohd. Javed the quality of the evidence produced by the prosecution is such that no doubts can be raised on the testimony of PW 1 regarding the incident in question.
29. In the light of the discussions hereinabove, I hold that the prosecution has proved beyond reasonable doubts that the accused had voluntarily caused hurt to the complainant by using a "Chhuri". The fact that the weapon was not recovered is not a ground to disbelieve the statement of the complainant in this regard. It is settled position of law that a person can be convicted for the offence punishable under Section 324 IPC and Section 326 IPC even if the weapon of the offence is not recovered. As discussed hereinabove, the accused can not be convicted for offence punishable under Section 326 IPC. However, ingredients of offence punishable under Section 324 IPC are attracted in the present case. A Chhuri falls in the category of an instruct used for the purpose of cutting as mentioned under Section 324 IPC.
30. Further, PW1 has stated in his examination that the accused had apprehended him from his backside when he was going towards his house. Thus, the accused Page 20 of 21 MM08 (C)/THC/Delhi/02.09.2019 FIR No. 102/2016, PS : Hauz Qazi State Vs. Mohd. Javed had voluntarily obstructed the complainant from proceeding in a direction in which he had a right to proceed. Thus, the ingredients of offence punishable under Section 341 IPC have also been proved by the prosecution against the accused beyond reasonable doubts.
31. In the light of the discussion hereinabove, I hold that the accused is found guilty and he is accordingly convicted for offences punishable under Section 324 IPC and Section 341 IPC.
32. Let the parties be heard on quantum of sentence.
33. Copy of the Judgment be given free of cost to the convict. Digitally signed by DINESH DINESH KUMAR KUMAR Date:
2019.09.02 17:41:44 +0530 Pronounced in the open Court on (Dinesh Kumar) nd this 02 Day of September 2019. MM08 (Central) Tis Hazari Courts, Delhi Page 21 of 21 MM08 (C)/THC/Delhi/02.09.2019