Delhi District Court
State vs Mushraf Hassan on 6 September, 2025
IN THE COURT OF JUDICIAL MAGISTRATE FIRST CLASS-02,
NORTH EAST DISTRICT, KARKARDOOMA COURTS, DELHI
PRESIDED BY: SH. ANMOL NOHRIA, DJS
STATE Vs. MUSHARAF HASSAN & ANR.
FIR NO. : 329/2009, u/S 326/34 IPC
PS : SEELAMPUR, CNR NO. DLNE020001212012
-: JUDGMENT :-
1.FIR No. 329/2009
2.Unique Case no. 461020/2015
3.Title State vs. Musharaf & Ors.
3(A).Name of complainant Khalid @ Babbu S/o Sajid Ali
3(B).Name of accused 1). Nasir Iqbal @ Abdul Nasir
S/o Sahadat Hussain, R/o H.
No. 1363, Gali No. 48,
Jafrabad, Delhi.
2). Mushraf Hassan S/o
Khurshid Khan, R/o H. No.
L-52/40, Gali No. 7/4, Khadhe
Wali Masjid, Gautam Vihar,
Delhi.
3 (C). Representation on Ms. Amandeep Kaur, Ld. APP
behalf of State for the State.
4.Date of institution of challan 21.07.2012 Digitally
5.Date of Reserving judgment 31.05.2025 signed by ANMOL ANMOL NOHRIA NOHRIA Date:
2025.09.06
6.Date of pronouncement 06.09.2025 14:55:09 +0530 FIR No. 329/2009 PS-Seelampur Page No. 1 of 31
7.Date of commission of 30.05.2012 offence
8.Offence complained of u/S 326/34 IPC & 174A IPC
9.Offence charged with u/S 326/34 IPC against both the accused and u/S 174A IPC against Nasir Iqbal @ Abdul Nasir
10.Plea of the accused Pleaded not guilty
11.Final order Both accused acquitted for offence u/S 326/34 and accused Nasir Iqbal @ Abdul Nasir convicted for offence u/S 174A IPC.
Brief Statement of Reasons for Decision of the Case :-
1. The present FIR is culmination of proceedings from DD No. 24A dated 29.08.2009 wherein information was received that gun shot has been fired in gali no. 51, Jafrabad and someone has been injured. Upon the DD, ASI Jagdish Narayan alongwith Ct. Rajender proceeded to the spot where they found lot of blood and that injured has been shifted to GTB Hospital. He after leaving Ct. Rajender at the spot proceeded to GTB Hospital and obtained MLC of the injured Khalid @ Babbu upon which doctor had stated fit for statement and nature of injuries were kept under observation with reference to gun shot. The injured refused to give any statement at the moment.
Thereafter ASI Jagdish Narayan searched for eye witnesses at the hospital but was not able to find any. Upon the circumstances of the incident and MLC, tehrir was recorded and FIR u/S 326 IPC was Digitally signed by ANMOL ANMOL NOHRIA Date: NOHRIA 2025.09.06 14:41:22 FIR No. 329/2009 PS-Seelampur Page No. 2 of 31 +0530 registered. Thereafter ASI Jagdish made the site plan and collected sample of the blood and earth control sealing the same with the seal of JN which was deposited with the malkhana. On 31.08.2009, opinion on the MLC was sought from GTB Hospital. Thereafter on 22.01.2010, investigation was proceeded further by ASI Jaswant who searched for the accused persons but was unable to find them. On 31.08.2010, the investigation was handed over to ASI Riyaz Mohammad who recorded the statement of the complainant on 02.09.2010. In his statement, complainant has stated that on 29.08.2009 at around 9:30 PM, he had left from the masjid after the namaz and after reaching home and handing over his stuff he proceeded to meet his business partner Khalid and when he reached at the road behind tent wala school, one motorcycle on which three people were sitting came from behind and closed to him. On the motorcycle, Nasir who was sitting in the middle fired a gun shot towards him which hit on his leg near the right knee and hit his other foot after exiting from there. Also his brother in law Musharaf was sitting at the back and he does not know who was driving the motorcycle. He dropped at the spot and someone made a police call upon which police transferred him to the hospital.
2. Thereafter opinion on nature of injuries was given as grievous by the doctor and don 20.10.2011 after inspection from the DCP, North-East the expert opinion was sought from GTB Hospital and accused Musharaf Hussain was interrogated and Nasir was searched for. On 20.11.2011 Forensic Medicine, GTB Hospital gave its Digitally signed by ANMOL ANMOL NOHRIA Date:
NOHRIA 2025.09.06 14:41:20 FIR No. 329/2009 PS-Seelampur Page No. 3 of 31 +0530 expert medical opinion which was taken on record. Thereafter on 16.01.2012, accused Musharaf was arrested who was granted bail by the court and vide order dated 30.05.2012, accused Nasir was declared a proclaimed offender. The accused Musharaf was charge-sheeted for offence punishable under Section 326/34 IPC. Thereafter, accused Nasir was arrested and supplementary charge sheet against him was filed u/S 326/34 and 174A IPC.
3. FIR was registered and has been investigated by the officials of Police Station Seelampur upon which cognizance was taken by the learned Predecessor of this Court.
4. Accused persons appeared before the Court and copy of charge-sheet along with other documents under Section 207 Cr.P.C. was supplied to them. Charge was framed vide order dated 12.03.2013 for the offence punishable Under Section 326/34 of the IPC against accused Musharaf and vide order dated 12.09.2014 u/S 326/34 and 174A IPC against accused Abdul Nasir @ Nasir by the learned Predecessor of this Court, to which, the accused persons pleaded not guilty and claimed trial.
5. Thereafter, matter was listed for Prosecution Evidence. During the trial, prosecution led the following oral and documentary evidence against the accused to prove its case beyond reasonable doubt :-
Digitally signed by ANMOLANMOL NOHRIA Date:
NOHRIA 2025.09.06 14:41:21 FIR No. 329/2009 PS-Seelampur Page No. 4 of 31 +0530 ORAL EVIDENCE PW-1 : Shaukat Ali Syed Khalid Ali @ Babbu PW-2 :
(complainant/injured)
PW-3 : ASI Rajender (police witness)
Retd. SI Jagdish Narayan (1st
PW-4 :
IO)
Retd. SI M. M. Khan (filed
PW-5 :
supplementary charge sheet)
DOCUMENTARY EVIDENCE
Ex. PW2/A : Statement of the complainant. Ex. PW2/C : Interrogation Report 03 plastic bottles containing Ex. PW4/A :
blood sample Ex. PW4/B : Site Plan DD No. 24A dated Ex. PW4/C :
29.08.2009 Arrest Memo of accused Ex. PW5/A :
Nasir Disclosure Statement of Ex. PW5/B :
accused Nasir ADMITTED DOCUMENTS Ex. A1 : FIR Ex. A1 : MLC with opinion Expert opinion of GTB Ex. A2 :
Hospital
Ex. A3 : Expert opinion by FSL
Execution of process u/S 82
Ex. A4 :
& 83 Cr.P.C.
Digitally signed
by ANMOL
ANMOL NOHRIA
Date:
NOHRIA 2025.09.06
14:41:17
FIR No. 329/2009 PS-Seelampur Page No. 5 of 31
+0530
6. PW1/Shaukat Ali has deposed on oath that he is working as manufacturer of dye and does not remember the exact date, however, 5-6 years ago, he was standing in Gali No. 47 and a boy came to him, who told that someone has hit bullet to Babbu Bhai and he reached Gali No. 51, where he saw Babbu Bhai was lying on footpath and blood was oozing out from his leg and public persons were also present there. Meanwhile, a person came in the car and injured was taken to the GTB Hospital where he also accompanied him and after admitting him in emergency, he came back home. Police recorded his statement.
6.1. PW1/Shaukat Ali was cross-examined by the counsel for the accused persons despite being given an opportunity.
7. PW2/Sayyed Khalid Ali @ Babbu is the complainant/injured in the present matter and has deposed on oath that presently, he is indulged in the business of manufacturing jeans and prior to it he was indulged in the business of inverter making and did the same upto 2012. On 29.08.2009, after completion of prayer, he reached his house at about 9:30 PM and handed over prayer articles to his elder son, he headed to meet his business partner Khalid Anwar and while he was crossing Tent Wala School in the meantime, three persons came from behind on a motorcycle. The rider was wearing a helmet and he could not see the face, accused Nasir was sitting in between rider and third person i.e. Mushrraf his brother in law; and accused Nasir fired a bullet through a firearm which hit his right leg and exited Digitally signed by ANMOL ANMOL NOHRIA Date:
NOHRIA 2025.09.06 14:41:19 FIR No. 329/2009 PS-Seelampur Page No. 6 of 31 +0530 from the same hitting his left leg. He fell down on the road and three persons fled away from the spot, someone made call to 100 upon which police reached and took him to GTB Hospital, Shaukat, his neighbour also accompanied him to the hospital. Police recorded his statement twice and he has a visible injury marks on both legs. The witness has correctly identified the accused Musharaf, present in the court but failed to identify accused Nasir, who was produced through VC.
7.1. PW2/Sayyed Khalid Ali @ Babbu was cross-examined by the Ld. APP for the State on the ground that he was resiling from his earlier statement. In his cross-examination, he has conceded that he had told the police that Nasir had fired upon him through pistol and his name was also disclosed to the police in his statement. However, he has also stated that the accused, who has been produced through VC, is not the person, who had assaulted him and he had taken a glimpse of the person, who assaulted him. He came to know about the name of the assailant through neighbourer that the person, who had assaulted was named Nasir. He has denied the suggestion of being won over by the accused or not identified him intentionally. The witness has failed to identified the accused produced through VC despite specific attention being drawn towards him.
7.2. In his cross-examination by counsel for accused Musharaf, PW2/Sayyed Khalid Ali @ Babbu has deposed that his statement was recorded by the police one year after the incident, he has studied upto 12th and his statement was read over to him prior to his signatures.Digitally signed by ANMOL
ANMOL NOHRIA Date:
NOHRIA 2025.09.06 14:41:18 FIR No. 329/2009 PS-Seelampur Page No. 7 of 31 +0530 There was no sufficient light where the incident had occurred and he had not noticed whether the headlight of the motorcycle was working or not, he heard the fire sound and thereafter fell on the road and did not turn after the fire and saw the motorcycle. Initially, he had seen the motorcycle while the accused persons assaulted him and after that he saw the motorcycle at a distance of around 15 meters and the person, who was sitting in the middle, had fired upon him. Public persons were passing by when the incident happened and he did not narrate the incident or told about the names of the accused persons to anyone prior to recording of his statement and police did not record his statement at the hospital. He had not seen the face of accused Musharaf though he came to know through neighbours about the name of Musharaf as a person accompanying assailants. He had worn white trousers at the time of incident and had not given the same to anyone. 7.3. In his cross-examination by counsel for accused Nasir, PW2/Sayyed Khalid Ali @ Babbu has conceded to the fact that he has not been threatened by any person prior to his deposition before the court.
8. Thereafter, Ld. APP for the State had raised a request for further re-examination of PW2/Sayyed Khalid Ali @ Babbu which was allowed, however, on 18.04.2024, no re-examination was done by the Ld. APP despite opportunity being given. Consequently, he was also not cross-examined by both the counsels despite opportunity being given.Digitally signed by ANMOL
ANMOL NOHRIA Date:
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9. The remaining prosecution witness supported the case of the prosecution and proved the documents mentioned in the Table above.
10. PE was closed on 18.04.2024 and on 24.08.2024 statement of the accused persons u/s 313 Cr.P.C read with Section 281 Cr.P.C wherein they denied the allegations in toto. They stated that they do not wish to lead DE and has been falsely implicated in the present case.
11. Final arguments heard. This Court has thoughtfully considered the material on record and arguments advanced with due circumspection.
12. Thereafter, final arguments were heard and matter was fixed for judgment, however, on 03.03.2025, Ld. APP for the State filed an application u/S 311 Cr.P.C. stating that inadvertently only witnesses of supplementary charge sheet were examined and prayer was made to allow examination of witnesses mentioned in the charge sheet. Thereafter on 31.03.2025, statement of accused persons u/S 294 Cr.P.C. was recorded, wherein they admitted MLC with final opinion, forensic expert opinion, expert opinion on exhibits and statement of process server; consequent to which certain witnesses were dropped and Ld. APP withdrew the application u/S 311 Cr.P.C. and matter was fixed for final orders.Digitally signed by ANMOL
ANMOL NOHRIA Date:
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13. The prosecution has charged the accused persons for offence u/S 326/34 IPC. The essential ingredients which the Prosecution is required to prove to establish the guilt of accused beyond reasonable doubt for offence punishable under Section 326 IPC are as under :
(1) voluntarily causing a hurt; (2) hurt caused must be a grievous hurt; and (3) the grievous hurt must have been caused by dangerous weapons or means.
14. "Grievous hurt" has been defined in Section 320 IPC, which reads as follows:
"320. Grievous hurt.--The following kinds of hurt only are designated as 'grievous':
First.--Emasculation.
Secondly.--Permanent privation of the sight of either eye.
Thirdly.--Permanent privation of the hearing of either ear.
Fourthly.--Privation of any member or joint. Fifthly.--Destruction or permanent impairing of the powers of any member or joint. Sixthly.--Permanent disfiguration of the head or face.
Seventhly.--Fracture or dislocation of a bone or tooth.Digitally signed by ANMOL
ANMOL NOHRIA Date:
NOHRIA 2025.09.06 14:41:21 FIR No. 329/2009 PS-Seelampur Page No. 10 of 31 +0530 Eighthly.--Any hurt which endangers life or which causes the sufferer to be during the space of twenty days in severe bodily pain, or unable to follow his ordinary pursuits."
15. In Mathai v. State of Kerala, (2005) 3 SCC 260 : 2005 SCC (Cri) 695 : 2005 SCC OnLine SC 87 at page 263, Hon'ble Supreme Court has observed that:-
"Some hurts which are not like those hurts which are mentioned in the first seven clauses, are obviously distinguished from a slight hurt, may nevertheless be more serious. Thus a wound may cause intense pain, prolonged disease or lasting injury to the victim, although it does not fall within any of the first seven clauses. Before a conviction for the sentence of grievous hurt can be passed, one of the injuries defined in Section 320 must be strictly proved, and the eighth clause is no exception to the general rule of law that a penal statute must be construed strictly."
"The expression "any instrument which, used as a weapon of offence, is likely to cause death" in S. 326 IPC has to be gauged taking note of the heading of the section. What would constitute a "dangerous weapon" would depend upon the facts of each case and no generalisation can be made."
16. Section 34 IPC read with as follows:
"34. Acts done by several persons in furtherance of common intention.--When a criminal act is done by several persons in furtherance of the common Digitally signed by ANMOL ANMOL NOHRIA Date:
NOHRIA 2025.09.06 14:41:17 FIR No. 329/2009 PS-Seelampur Page No. 11 of 31 +0530 intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone."
17. Section 34 IPC creates a rule of joint and constructive liability. It is joint liability because all the accused can be jointly trial for the said offence and can be jointly held liable. It is constructive liability because liability of one accused is construed upon the liability of main accused. In such a case the main offences is committed by one of the accused and the others are held constructively liable for the offence as they have a particular connection with the main offender. The connection required by section 34 IPC is that of 'common intention' and one of them in furtherance of that common intention has committed the offence. Moreover, when the offence was committed the other parties to the common intention had actively participate by doing some conduct which complements the commission of the offence.
18. The elements required to prove the application of section 34 IPC is as follows:
(i) Common intention- intention is the desire to produce particular consequence and when that desire becomes common to more than one person it becomes common intention. For the formation of common intention there has to be a prior agreement or a concert between the parties for the commission of the offence. The agreement can be formed Digitally signed by ANMOL ANMOL NOHRIA Date:
NOHRIA 2025.09.06 14:41:21 FIR No. 329/2009 PS-Seelampur Page No. 12 of 31 +0530 by formally entering into an agreement or it can also be by conduct on the spot.
(ii) once the agreement, formal or by conduct has been made the parties become mutual agents for each other and whatever one does with respect to the common intention he is said to be representing the others. Once the common intention has been formed agreement is to commit the offence jointly or by complementary action.
(iii) for the application under section 34 IPC there should be a complementarity of action i.e. not only the parties had agreed to complement each other in the commission of the offence rather they actually complement each other in the commission of offence. The complementary action (active participation) should have been done in order to facilitate to commission of the main offence and even if within itself that act may not be an offence or be merely an act of abatement, it will amount to liability through section 34 IPC if the complementary action was done at the time of commission of the offence. It is not essential that all the co-accused should have done the complementary action by being present on the spot.
19. Needless to mention, in criminal law, the burden of proof on the prosecution is that of beyond reasonable doubt. The presumption of innocence of the accused has to be rebutted by the Digitally signed by ANMOL ANMOL NOHRIA Date: NOHRIA 2025.09.06 14:41:18 FIR No. 329/2009 PS-Seelampur Page No. 13 of 31 +0530 prosecution by adducing cogent evidence that points towards the guilt of the accused. The evidence in the present case is to be weighed keeping in view the above legal standards.
20. Before proceeding for the examination of the offence punishable under section 326 IPC reference to the judgment of Balu Sudam Khalde vs. State of Maharashtra, Crl. Appeal No.1910 of 2010 . The division bench of Hon'ble Supreme Court has enunciated that the testimony of an injured eye witness cannot be doubted unless there are material contradictions in his deposition. The evidence of injured eye witness has greater evidentiary value and unless compelling reasons exists their testimony cannot be discard lightly.
21. In the present case, the offence alleged against accused is against the body of the victim/complainant Sayyed Khalid Ali @ Babbu, who has been examined as PW2 and therefore his testimony requires careful scrutiny as he is the only eye witness of the incident.
22. Perusal of the testimony of PW2 shows that he has narrated the incident in his examination in chief and has identified the accused Musharaf, present in the court as the person sitting as the third person on the motorcycle, however, he has failed to identify the accused Nasir, who is stated to be actual person, who had fired upon him with a firearm. Even, in his cross-examination by the Ld. APP for the State he has failed to identify accused Nasir and has rather clarified Digitally signed by ANMOL ANMOL NOHRIA Date:
NOHRIA 2025.09.06 14:41:19 FIR No. 329/2009 PS-Seelampur Page No. 14 of 31 +0530 that he is not the person, who had assaulted him and though he had taken a glimpse of the accused persons who had assaulted him, he has not identified Nasir who has been produced in the court. Further, in his cross-examination, he has also resiled from his statement of identifying accused Musharaf by stating that he had not seen the face of accused Musharaf and had come to know through neighbours that Musharaf was accompanying the assailants. He has further in his cross- examination stated that there was no sufficient light present at the spot and he had not noticed about the working of the headlight of the motorcycle. He has further admitted of not having been threatened before his deposition. Interestingly, despite all his inconsistencies, he was not re-examined by the Ld. APP for the State despite being allowed opportunity by the court.
23. At this juncture, it can be observed that though the witness has stated the names of the assailants in his statement Ex. PW2/A given to the police but in his testimony before the court he has completely resiled from the same by narrating that he has been told about the name of both the accused persons by someone else and there was not sufficient light at the spot; thereby creating a doubt himself upon his testimony and can be considered to be hostile in nature.
24. It is pertinent to note that under Indian law, the evidence of such a witness is not discarded completely. The legal maxim, "false in uno false in ombnibus" is not applicable in India. With respect to the Digitally signed by ANMOL ANMOL NOHRIA Date:
NOHRIA 2025.09.06 14:41:22 FIR No. 329/2009 PS-Seelampur Page No. 15 of 31 +0530 evidentiary value of hostile witness, it was observed by the Apex Court in the case of Rohtash Kumar vs. State of Haryana (2013) 14 SCC 434, as under:-
"25. It is a settled legal proposition that evidence of a prosecution witness cannot be rejected in toto, merely because the prosecution chose to treat him as hostile and cross examined him. The evidence of such witnesses cannot be treated as effaced, or washed off the record altogether. The same can be accepted to the extent that their version is found to be dependable, upon a careful scrutiny thereof."
25. Therefore, it has to be seen if the evidence of such witness can be relied in part and inculpatory parts have to be excluded from exculpatory parts. Perusal of testimony of PW2 shows that he has incriminated only accused Musharaf in his examination in chief and has failed to identify accused Nasir, however, if we read the same with statement of the complainant i.e. PW2/A which has been admitted by PW2 to be his statement given to the police then both the accused persons are inculpated by PW2/complainant.
26. However, the evidence of such a witness has to be corroborated with other evidence on record in order to secure a conviction and if there is any doubt in the case of the prosecution, the benefit of the same has to be given to the accused.
27. Coming to the other evidence and circumstances brought on record by the prosecution, it can be observed that there has been a Digitally signed by ANMOL ANMOL NOHRIA Date: NOHRIA 2025.09.06 14:41:20 FIR No. 329/2009 PS-Seelampur Page No. 16 of 31 +0530 delay of over one year in recording the statement of the complainant after the incident by the IO for which no explanation either in the charge sheet or in the form of evidence has been given by the prosecution.
28. Further, there is no evidence qua the efforts made to seize the weapon of offence in this case. The injured had mentioned in his statement and as per medical record that he has been injured by a gun shot. However, the initial IO, who has only been examined from amongst all the IO's has not deposed about any efforts made to recover the weapon from the accused. Further, the complainant/PW1 in his statement has never deposed anything about the site plan and the same has never been made at the instance of the complainant by the IO which itself is evident from the testimony of PW4 and never after the recording of statement of the complainant by the IO has the complainant been taken for preparation of the site plan.
29. From the discussion above, it is clear that the only evidence in the present case is the testimony of complainant/PW2 which partly inculpates the accused persons, however, the other circumstances brought on record by the prosecution are such that they do not corroborate the inculpatory part of the testimony of complainant/PW2.
Digitally signed by ANMOLANMOL NOHRIA Date:
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30. The rule that the prosecution must prove its case beyond reasonable doubt is a rule of caution laid down by the Courts of Law in respect of assessing the evidence in criminal cases. In Awadhi Yadav v. State of Bihar, (1971) 3 SCC 116 at page 117, Hon'ble Supreme Court has observed that:
"Before a person can be convicted on the strength of circumstantial evidence, the circumstances in question must be satisfactorily established and the proved circumstances must bring home the offence to the accused beyond reasonable doubt. If those circumstances or some of them can be explained by any other reasonable hypothesis then the accused must have the benefit of that hypothesis. But in assessing the evidence imaginary possibilities have no place. What is to be considered are ordinary human probabilities."
31. In State of Haryana v. Bhagirath, (1999) 5 SCC 96 : 1999 SCC (Cri) 658 : 1999 SCC OnLine SC 577 at page 99 Hon'ble Supreme Court has observed that:
"But the principle of benefit of doubt belongs exclusively to criminal jurisprudence. The pristine doctrine of benefit of doubt can be invoked when there is reasonable doubt regarding the guilt of the accused. It is the reasonable doubt which a conscientious judicial mind entertains on a conspectus of the entire evidence that the accused might not have committed the offence, which affords the benefit to the accused at the end of the criminal trial. Benefit of doubt is not a legal dosage to be administered at every segment of the evidence, but an advantage to be afforded to the accused at the final end after consideration of the entire evidence, if Digitally signed by ANMOL ANMOL NOHRIA Date:
NOHRIA 2025.09.06 14:41:20 FIR No. 329/2009 PS-Seelampur Page No. 18 of 31 +0530 the Judge conscientiously and reasonably entertains doubt regarding the guilt of the accused. It is nearly impossible in any criminal trial to prove all the elements with a scientific precision. A criminal court could be convinced of the guilt only beyond the range of a reasonable doubt. Of course, the expression "reasonable doubt" is incapable of definition. Modern thinking is in favour of the view that proof beyond a reasonable doubt is the same as proof which affords moral certainty to the Judge."
32. Francis Wharton, a celebrated writer on criminal law in the United States has quoted from judicial pronouncements in his book Wharton's Criminal Evidence (at p. 31, Vol. 1 of the 12th Edn.) as follows:-
"It is difficult to define the phrase 'reasonable doubt'. However, in all criminal cases a careful explanation of the term ought to be given. A definition often quoted or followed is that given by Chief Justice Shaw in the Webster case. He says: 'It is not mere possible doubt, because everything relating to human affairs and depending upon moral evidence is open to some possible or imaginary doubt. It is that state of the case which, after the entire comparison and consideration of all the evidence, leaves the minds of the jurors in that consideration that they cannot say they feel an abiding conviction to a moral certainty of the truth of the charge."
33. In the treatise The Law of Criminal Evidence authored by H.C. Underhill it is stated (at p. 34, Vol. 1 of the 5th Edn.) thus:
Digitally signed by ANMOLANMOL NOHRIA Date:
NOHRIA 2025.09.06 14:41:22 FIR No. 329/2009 PS-Seelampur Page No. 19 of 31 +0530 "The doubt to be reasonable must be such a one as an honest, sensible and fair-minded man might, with reason, entertain consistent with a conscientious desire to ascertain the truth. An honestly entertained doubt of guilt is a reasonable doubt. A vague conjecture or an inference of the possibility of the innocence of the accused is not a reasonable doubt. A reasonable doubt is one which arises from a consideration of all the evidence in a fair and reasonable way. There must be a candid consideration of all the evidence and if, after this candid consideration is had by the jurors, there remains in the minds a conviction of the guilt of the accused, then there is no room for a reasonable doubt."
34. In Shivaji Sahabrao Bobade v.State of Maharashtra (1973) 2 SCC 793 : 1973 SCC (Cri) 1033 : (1974) 1 SCR 489 Hon'ble Supreme Court cautioned that:
"the dangers of exaggerated devotion to the rule of benefit of doubt at the expense of social defence demand special emphasis in the contemporary context of escalating crime and escape. The judicial instrument has a public accountability. The cherished principles or golden thread of proof beyond reasonable doubt which runs through the web of our law should not be stretched morbidly to embrace every hunch, hesitancy and degree of doubt."
35. The prosecution heavily relies on the testimony of PW2/complainant. PW2 is the only witness who had seen the accused persons but he has in his testimony resiled from the same by stating that their names have been disclosed by some other person.
Digitally signed by ANMOLANMOL NOHRIA Date: NOHRIA 2025.09.06 14:41:21 FIR No. 329/2009 PS-Seelampur Page No. 20 of 31 +0530
Interestingly, as per the version of complainant/PW2, public persons were present when the incident happened, however, no public persons has ever been made to join the investigation or examined as a witness who could corroborate the initial statement of the complainant. Further, the complainant himself contradicts his version by stating that he has not disclosed the incident or name of the accused persons to anyone prior to recording of his statement, the said version does not find merit with this court especially when accused Musharaf stated to be brother in law of the complainant/PW2 and the names of the accused persons have been disclosed to him by some persons.
36. To summarize, even though there may have been use of firearms on the date of alleged incident and the complainant may have sustained injuries because of the same, however, the evidence brought on record by the prosecution, is not sufficient to link the accused persons to the commission of the crime u/S 326/34 IPC for the reasons discussed above.
37. Thus, in view of the above discussion, the Prosecution has not been able to establish beyond reasonable doubt the guilt of the accused persons therefore, accused persons are found not guilty in the present case and resultantly, they stand acquitted in the present case for offence u/S 326/34 IPC.
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38. Accused Nasir has also been charged with offence punishable under section 174A IPC.
39. Section 174A of the Penal Code, 1860 reads as under:-
"174A. Non-appearance in response to a proclamation under section 82 of Act 2 of 1974.-- Whoever fails to appear at the specified place and the specified time as required by a proclamation published under sub-section (1) of section 82 of the Code of Criminal Procedure, 1973 shall be punished with imprisonment for a term which may extend to three years or with fine or with both, and where a declaration has been made under sub- section (4) of that section pronouncing him as a proclaimed offender, he shall be punished with imprisonment for a term which may extend to seven years and shall also be liable to fine."
40. Section 174A IPC is divided into two parts. First part deals with the situation where the proclamation is issued under Section 82(1) Cr.P.C. and when the accused failed to appear despite its publication, he is to undergo imprisonment upto three years or with fine or with both. The second part of Section 174A relates to the declaration issued by the Court under Section 82(4) Cr.P.C. wherein serious offences have been prescribed and despite declaring a person as proclaimed offender, when he fails to appear, the punishment provided is imprisonment upto seven years and payment of fine.
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41. An argument was raised by Ld. Counsel for accused that Section 195 Cr.P.C. clearly barred the Court from taking cognizance of any offences punishable under Sections 172 to 188 IPC. Provision of Section 195 Cr.P.C. is mandatory and the Court has no jurisdiction to take cognizance of any offence mentioned therein unless there is a complaint in writing by the public servant.
42. In Maneesh Goomer vs. State, 2012(1)JCC 465 (Crl.M.C. 4208/2011) decided on 04.01.2012 Hon'ble Delhi High Court has categorically held that Section 195 Cr.P.C. has not been correspondingly amended so as to include Section 174A IPC which was brought into the Penal Code with effect from 23.06.2006.
43. Section 174A IPC was introduced in the Code with effect from 23.06.2006 and Section 195A Cr.P.C. which provides that no Court shall take cognizance of offences punishable under Sections 172 to 188 IPC (Both inclusive) or of the abatement of committing the offence, except by complaint in writing by the public servant or of some other public servant to whom he is administratively subordinate, was a part of the Criminal Procedure Code since 1974 when the new Criminal Procedure Code came into force. No corresponding amendment was brought into Section 195 (1) (a) in the year 2006 when a new offence, by adding Section 174A was introduced in Indian Penal Code. By no stretch of imagination, it can be inferred or presumed that Digitally signed by ANMOL ANMOL NOHRIA Date:
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44. The Court in Maneesh Goomer (supra) held :-
"....it may be noted that Section 174-A IPC was introduced in the Code with effect from 23rd June, 2006. Section 195(1) Cr.P.C. provides that no Court shall take cognizance of offences punishable under Section 172 to 188 (both inclusive) of the IPC or of the abatement, or attempt to commit the said offences, except on the complaint in writing of the public servant concerned or of some other public servant to whom he is administratively subordinate. Section 195 Cr.P.C. has not been correspondingly amended so as to include Section 174-A IPC which was brought into the Penal Code with effect from 23rd June, 2006. The Legislature was conscious of this fact and that is why though all other offences under chapter X of the Criminal Procedure Code are non cognizable, offence punishable under Section 174-A IPC is cognizable. Thus the Police officer on a complaint under Section 174-A IPC is competent to register FIR and after investigation thereon file a charge-sheet before the Court of Magistrate who can take cognizance thereon. Thus, I find no merit in the contention raised by the Learned Counsel for the Petitioner. "
45. In Moti Singh Sikarwar vs. State of U.P. and Ors, MANU/UP/2481/2016, decided on 29.11.2016 by the High Court of Digitally signed by ANMOL ANMOL NOHRIA Date:
NOHRIA 2025.09.06 14:41:20 FIR No. 329/2009 PS-Seelampur Page No. 24 of 31 +0530 Allahabad it has been observed that bar created by Section 195(1) (a) Cr.P.C. would not apply to the provisions of section 174AIPC. It held:
"21. The reasons are as follows:
"1. It is to be noted that all the offences under Section 172 to 188 I.P.C. (both inclusive) are non- cognizable and bailable, whereas Section 174-A I.P.C. which provides for punishment upto 7 years imprisonment and fine, in case the offender fails to appear at the specified place and the specified time, as required by the proclamation published under Section 82 Cr.P.C., is cognizable and non-bailable. The legislature was conscious of this fact and that is why while introducing Section 174-A in the I.P.C. in the year 2006, it made no corresponding amendment in Section 195(1)(a) Cr.P.C. so as to include Section 174-A I.P.C. in between all the non- cognizable offences and bailable from Sections 172 to 188 I.P.C.
2. It cannot be said that due to inadvertence, the corresponding amendment in Section 195(1)(a) Cr.P.C., was left to be made by the legislature. It is noteworthy that Section 195 has been correspondingly amended in the year 2006, by amending the exception clause of it. Had there been any intention on the part of the legislature to include Section 174-A I.P.C. in Section 195(1)(a) Cr.P.C. it would have definitely correspondingly amended Section 195(1)(a) Cr.P.C. also.
3.Section 154 of Code of Criminal Procedure provides for information in cognizable cases and the concept of "locus standi" has been completely washed off by this section, as any person can set the law into motion, in case any cognizable offence is noticed by him, by registering a first information Digitally signed by ANMOL ANMOL NOHRIA Date:
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4. The basic principle of law is that one, who seeks equity should do equity. In other words the persons, who seeks equitable reliefs, should come before the court with clean hands. The accused has no right to choose the mode by which he is to be prosecuted specially in the circumstances when he has failed to comply with the orders of the court and is prolonging the matter by filing one case after another.
5. The Hon'ble Delhi High Court in Maneesh Goomer's case (supra) has held that Section 195 Cr.P.C. has not been correspondingly amended so as to include section 174-A I.P.C., which was brought into the Penal Code with effect from 23rd June 2006 and there is no reason to deviate with the view of Hon'ble Delhi High Court."
22. In view of the above discussion, this court is of the considered view that the bar of Section 195 (1)
(a) Cr.P.C. is not applicable to the present case and a private person is competent to lodge a complaint or even an F.I.R. under Section 174-A I.P.C."
46. In A. Krishna Reddy v. CBI 2017 SCC OnLine Del 7266 :
(2017) 3 DLT (Cri) 391, Hon'ble Delhi High Court in para 29 has observed that:
"No separate investigation is required to be conducted as the orders of the Court declaring the petitioner to be Proclaimed Offender are part of the Digitally signed by ANMOL ANMOL NOHRIA Date:
NOHRIA 2025.09.06 14:41:21 FIR No. 329/2009 PS-Seelampur Page No. 26 of 31 +0530 record in the main challan. Object and purpose to incorporate Section 174A IPC primarily is to ensure that the accused / suspects do not scuttle investigation or trial by remaining absconding without valid or sufficient reasons. In such a scenario, when the suspects or accused abscond, possibility of valuable evidence to be washed away cannot be ruled out."
47. In Sunil Tyagi vs. Govt. of NCT of Delhi and Another CRL.M.C. 4438/2013 & CRL.M.A. 15894/2013, Hon'ble Delhi High Court has observed that:
"21. The legislature by enacting Section 174A IPC has further penalised the non-appearance of a proclaimed offender. The very basis of fair trial is threatened if an accused/suspect is declared as a proclaimed offender without proper service, or if proclamations and non-bailable warrants are issued in a routine manner.
22. The legislature seeing the growing number of Proclaimed offenders inserted Section 174A IPC by way of Clause 44 of the CrPC. (Amendment) Act, 2005 (25 of 2005) which was brought into force w.e.f. 23rd June, 2006 vide Notification No. SO 923(E) dated 21st June, 2006, hoping that it would be a deterrent for persons fleeing from justice.
23. Section 174A IPC penalizes the non-appearance of a person as required by a proclamation published under. In case of non- appearance consequent to a proclamation under Section 82(1) of the Code for a term up to three years/fine/both and in case of a declaration under Section 82(4) of the Code (in respect of offences under Sections 302, 304, 364, 367, 382, 392, 393, 394, 395, 396, 397, 398, 399, 400, 402, 436, 449, 459 or 460 of the IPC for a term Digitally signed by ANMOL ANMOL NOHRIA Date:
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Since non-appearance of accused in response to the proclamation under Section 82 CrPC has been made a substantive offence, the provisions of Section 174A IPC are required to be invoked against absconding accused. When the accused fails to appear before the court in response to the proclamation issued under Section 82(1) CrPC, within the period of 30 days from the date of proclamation, or fails to appear at the specified place and time required by the proclamation issued under Section 82(4) CrPC, he is punishable with imprisonment for a term which may extend to three years or with fine or with both and imprisonment for a term which may extend to seven years or with fine or both, respectively."
48. Section 174A of the Penal Code, 1860 reads as under:
"174A. Non-appearance in response to a proclamation under section 82 of Act 2 of 1974.-- Whoever fails to appear at the specified place and the specified time as required by a proclamation published under sub-section (1) of section 82 of the Code of Criminal Procedure, 1973 shall be punished with imprisonment for a term which may extend to three years or with fine or with both, and where a declaration has been made under sub-section (4) of that section pronouncing him as a proclaimed offender, he shall be punished with imprisonment for a term which may extend to seven years and shall also be liable to fine."Digitally signed by ANMOL
ANMOL NOHRIA Date:
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49. In the case at hand, though, the complainant/PW2 in his testimony has failed to identify accused Nasir as one of the person, who assaulted him and fired upon him, however, it cannot be a hurdle in reading the evidence against accused Nasir for the purposes of Section 174A IPC as the Section is stand alone in itself and does not require any person to be specifically an accused and can be proceeded against without there being any accusation of any offence against him when read with Chapter-VI of Cr.P.C. and the examination of evidence for offence u/S 174A IPC is only limited to the aspect whether there was any proclamation against the person concerned/ accused and whether he has failed to appear after proper execution of the same.
50. In the present case, proclamation under section 82 Cr. P.C. was issued against accused Nasir during the investigation stage on 17.02.2012 directing him to appear before this Court by 30.04.2012. He failed to appear within the stipulated period. Thereafter, proceedings u/S 83 Cr.PC. were initiated against the accused Nasir, however, despite the same accused failed to appear before the court by 30.05.2012. Ld. Court recorded statement of process server HC Ram Gopal, who had executed process under section 82 & 83 Cr. PC against accused Nasir and declared accused Nasir a proclaimed person vide order dated 30.05.2012. Therefore, process under S. 82 Cr. P. C. was duly executed against accused Nasir as per the procedure laid in the section itself including publication and public announcement, despite that he failed to appear.
Digitally signed by ANMOLANMOL NOHRIA Date:
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51. The contention raised by the counsel for the accused is that the accused is resident of the same locality as the complainant and thus it is not possible for him to abscond and not come in the knowledge of the complainant. However, vide statement u/S 294 Cr.P.C. dated 31.05.2025, the accused had admitted the execution of process u/S 82 & 83 Cr.P.C. and thereafter has not led any defence evidence to prove the version that he was available in the same locality during the said period or to show that the process has been manipulated and never executed against him.
52. Thus, in view of the above discussion, accused Nasir is found guilty for offence punishable under section 174A IPC in the present case and resultantly, he stands convicted in the present case.
Let the convict be heard separately on quantum of sentence.
53. Thus, in view of the above discussion, the prosecution has not been able to establish beyond reasonable doubt that accused persons have committed offence punishable under section 326/34 IPC. Therefore, they are found not guilty in the present case for the above mentioned offence and resultantly, they stand acquitted in the present case for the above mentioned offences. Accused Abdul Nasir @ Nasir S/o Shahadat Hussain has been convicted for offence punishable under section 174A IPC.
Digitally signed by ANMOLANMOL NOHRIA Date:
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54. Bail bonds and surety bonds of the accused persons stands discharged. Original be returned to rightful owner after cancellation of endorsement. Superdarinama, if any, hereby stands cancelled.
55. Accused persons are directed to furnish bonds in the sum of Rs.10,000/- with a surety of like amount u/S 437A Cr.P.C and is directed to be present before the Ld. Appellate Court as and when directed.
56. This judgment contains 31 pages. This judgment has been signed and pronounced by the undersigned in open court.
57. Let a copy of the judgment be uploaded on the official website of District Courts, Karkardooma forthwith.
File be consigned to record room after due compliance.
Announced in the open (ANMOL NOHRIA) Court on 06th Sep., 2025 JMFC-02/NE/KKD COURTS Digitally signed by ANMOL ANMOL NOHRIA Date:
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