Delhi District Court
State vs . Nizam & Anr. on 25 January, 2023
IN THE COURT OF METROPOLITAN MAGISTRATE-02,
NORTH EAST DISTRICT, KARKARDOOMA COURTS,
DELHI
PRESIDED BY: SH. VIPUL SANDWAR
JUDGMENT
FIR NO. : 514/2004, U/s 341/323/34 IPC
PS : SEELAMPUR
A. CIS No. of the Case : 461210/2015
B. FIR No. : 514/2004
C. Date of Institution : 15.10.2004
D. Date of Commission of Offence : 06.09.2004 E. Name of the complainant : Afzal S/o Akhtar, R/o 594/20, Shastri Park, Buland Masjid, Delhi F. Name of the Accused, his : (1) Nizam S/o Bahazuddin, Parentage & Addresses R/o H. No.487, B-Block, Buland Masjid, Shastri Park, Delhi (proceedings abated on 24.01.2020) and (2) Israr Ahmd S/o Imamuddin, R/o B-375, Buland Masjid, Shastri Park, Delhi.
G. Offence complained of : U/s 341/323/34 IPC H. Plea of the Accused : Pleaded not guilty and claimed trial.
I. Order reserved on : 12.01.2023 J. Date of Order : 25.01.2023 K. Final Order : Acquitted FIR No.514/2004 State vs. Nizam & Anr. PS Seelampur Page No.1 of 10
Brief Statement of Reasons for Decision of the Case
1. The present FIR is based on DD No.62B dated 06.09.2004. Briefly stated the facts of the present case are that on 06.09.2004 at around 05:30 pm the complainant purchased two Pepsi bottles from the shop of accused Nizam after paying Rs.14/-. When he reached home one of the bottles broke. When he went to returned the bottle accused Nizam refused to accept the bottle which led to a quarrel between the complainant and accused Nizam. When the complainant going towards his house accused Nizam and Israr stopped his way and started beating him by danda due to which the complainant fell on ground. With much difficulty the complainant freed himself from the clutches of the accused persons and made a call at 100 number. PCR van took the complainant to GTB hospital.
2. FIR was registered and has been investigated by the officials of Police Station Seelampur and IO/SI Rakesh filed the charge sheet against the accused upon which cognizance was taken by the Court on 15.10.2004.
3. Accused appeared before the Court and copy of chargesheet along with other documents under Section 207 Cr.P.C. was supplied to him.
4. Charge was framed vide order dated 17.03.2005 for the offence punishable Under Section 341/323/34 IPC against accused by Ld. Predecessor of this Court to which accused pleaded not guilty and claimed trial.
FIR No.514/2004 State vs. Nizam & Anr. PS Seelampur Page No.2 of 10
5. Thereafter, matter was listed for Prosecution Evidence. The Prosecution has examined 03 witnesses in support of its case. In nutshell, the testimony of the prosecution witnesses is as follows :-
(i) PW1 Afzal is the complainant in the present case. He has stated deposed that on 09.06.2004 his brother had come to Delhi and for him he brought two Pepsi bottles from the shop of Nizamuddin. During the course of opening of the bottles one of the Pepsi bottle broke from his top. When he went to returned the bottles accused Nizamuddin asked him as to how the bottles were broken. He agreed to pay the cost of the bottles but accused started abusing him. When he objected accused Nizamuddin slapped him. He started running from the spot, thereafter, accused Nizamuddin and Israr started following him with sword.
He went inside the house of his mother-in-law. Accused persons apprehended him and beat him with danda which was carried by them. He sustained injuries on his head and right arm and became unconscious. Some one made a PCR call and he was taken to the hospital. Since the witness had inadvertently mentioned the date of incident incorrectly, Ld. APP with the permission of the Court put questions to him in the nature of cross-examination and it was clarified that the date of incident was 06.09.2004 in between 06:00 - 06:30 pm. The said witness was cross examined by Ld. counsel for accused. During his cross-examination PW1 has stated that accused Israr was also having a sword and attacked him with the same. He has also stated that accused Nizam hit him with the Pepsi bottle. He has also stated that no public person came to save him when accused attacked him. He denied any suggestion of being under the FIR No.514/2004 State vs. Nizam & Anr. PS Seelampur Page No.3 of 10 influence of liquor on the day of incident.
(ii) PW2 HC Nafis Khan was the Duty Officer on the day of incident and after revving the tehrir from Ct. Sanjeev recorded the FIR. He also made the endorsement on the rukka and handed over the copy of FIR and original rukka to Ct. Sanjeev for giving it to SI Rajesh Kumar. The witness was not cross examined despite giving an opportunity to Ld. counsel for accused.
(iii) PW3 Smt. Nasra went to the shop of Nizam to purchase atta and saw accused Nizam and Israr. Accused Israr having a sword in his hand. Victim Afzal managed to remove himself from the clutches of the accused persons and run away. Afzal informed the police who were standing at the red light in PCR van who took him to GTB hospital. The said witness was cross examined by Ld. counsel for accused. During her cross-examination she has stated that victim was engaged with her daughter.
6. Proceedings against accused Nizam had abated vide order dated 24.01.2020. Accused admitted the MLCs of the complainant and the investigation carried out by the IO and examination of the said witnesses were dispensed with as per S. 294 Cr. PC. PE was closed on 12.01.2023 and on the same day statement of accused under Section 313 Cr. PC read with section 281 Cr. PC was recorded. The accused did not wish to lead DE and matter was fixed for final arguments.
7. Final arguments heard. Case record perused meticulously.
8. This Court has thoughtfully considered the material on record and arguments advanced with due circumspection.
FIR No.514/2004 State vs. Nizam & Anr. PS Seelampur Page No.4 of 10
9. The prosecution has charged accused Israr Ahmed with offence punishable under S. 341 IPC. It reads as:
"341. Punishment for wrongful restraint.-- Whoever wrongfully restrains any person shall be punished with simple imprisonment for a term which may extend to one month, or with fine which may extend to five hundred rupees, or with both. Wrongful restraint has been defined as:
339. Wrongful restraint.--Whoever voluntarily obstructs any person so as to prevent that person from proceeding in any direction in which that person has a right to proceed, is said wrongfully to restrain that person.
(Exception) --The obstruction of a private way over land or water which a person in good faith believes himself to have a lawful right to obstruct, is not an offence within the meaning of this section. Illustration A obstructs a path along which Z has a right to pass. A not believing in good faith that he has a right to stop the path. Z is thereby prevented from passing. A wrongfully restrains Z."
10. In Ms. Vijay Kumari Magee vs Smt. S.M. Rao And Others, AIR 1996 SC 1058, Hon'ble Supreme Court has held that:
"...no offence under Section 341 is made out inasmuch as for an action to amount to "wrongful restraint", the person concerned must have "right to proceed" in the direction in question, as would appear from what has been stated in Section 339, which has spelt out what is wrongful restraint. This view is correct..."
11. In the present case, PW1/Complainant Afjal has deposed that he went to accused Nizam's shop and bought two Pepsi bottles for his brother. One of the bottle broke from the top and when he went to return the same, accused Nizam started abusing him. When he objected, accused Nizam slapped him after which FIR No.514/2004 State vs. Nizam & Anr. PS Seelampur Page No.5 of 10 he started running from the spot. Accused Nizam and Israr followed him with sword. He went inside the house of his mother in law but the accused persons managed to apprehend him and beat him with danda. He sustained injuries and became unconscious. There is nothing in the deposition of PW1 that shows he was stopped/prevented from proceeding in a certain direction. Nothing has been stated regarding restraint of complainant Afzal even in the deposition of PW3. In the circumstances, prosecution has not been able to prove the requisite "wrongful restraint" for offence punishable under S. 341 IPC.
12. The prosecution has also charged accused Israr Ahmed with offence punishable under S. 323 IPC. S. 323 deals with Punishment for voluntarily causing hurt and reads as:
"Whoever, except in the case provided for by section 334, voluntarily causes hurt, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both. S 319 defines Hurt as--Whoever causes bodily pain, disease or infirmity to any person is said to cause hurt."
13. In Hanif Usmanbhai Kalva v. State of Gujarat, Criminal Misc. Application No. 3120 of 2014, Hon'ble Gujarat High Court has held that for the prosecution to prove an offence under Section 323, three essential ingredients has to be proved:
(i) Accused has caused hurt to the victim.
(ii) The hurt caused was voluntary in nature.
(iii) The same offence is not covered under Section 334 of the IPC.
FIR No.514/2004 State vs. Nizam & Anr. PS Seelampur Page No.6 of 10
14. In the present case, complainant PW1 has deposed that accused Nizam slapped him. After that, complainant was followed by accused Nizam and Ishrar followed him with sword. Later, the accused persons apprehended him and beat him with danda, on which the complainant became unconscious. In his cross examination dated 27.08.2014, PW1 has stated that "Accused Israr was also having a sword and attacked me with the same". In the circumstances, it cannot be ascertained whether complainant Afzal was attacked with sword or danda. PW3 has deposed that she saw accused Nizam and Ishrar beating Nizam. She has also deposed that accused Ishrar was having a sword in his hand and hit Nizam on his head. During her cross examination she has restated that accused Ishrar had a sword in his hand. PW3 in her chief examination has mention the name of complainant as Nizam, which is actually the name of one of the accused. Later she has stated that victim Afzal managed to remove himself from the spot. In the circumstances, reliability of the deposition of PW3 suffers.
15. In a criminal trial, the burden on the prosecution is beyond reasonable doubt. The 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 circum- stances in question must be satisfactorily estab- lished and the proved circumstances must bring home the offence to the accused beyond reason- able doubt. If those circumstances or some of them can be explained by any other reasonable FIR No.514/2004 State vs. Nizam & Anr. PS Seelampur Page No.7 of 10 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."
16. In Bhagirath (supra) at page 99 Hon'ble Supreme Court has observed that:
"But the principle of benefit of doubt belongs ex- clusively 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 consci- entious 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 the Judge conscientiously and reasonably entertains doubt regarding the guilt of the accused. It is nearly im- possible in any criminal trial to prove all the ele- ments with a scientific precision. A criminal court could be convinced of the guilt only beyond the range of a reasonable doubt. Of course, the ex- pression "reasonable doubt" is incapable of defi- nition. 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."
17. 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, FIR No.514/2004 State vs. Nizam & Anr. PS Seelampur Page No.8 of 10 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."
18. 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:
"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."
19. 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."
20. The evidence brought on record by the prosecution, is not sufficient to link the accused to the commission of the crime. As discussed above, the prosecution has failed to prove and restraint FIR No.514/2004 State vs. Nizam & Anr. PS Seelampur Page No.9 of 10 as required for offence punishable under S. 341 IPC. The deposition of PW1 and PW3 cannot establish the identity of the victim or the weapon of offence used. Sufficient doubt has been created by the accused.
21. Thus, in view of the above discussion, the Prosecution has not been able to discharge its burden beyond reasonable doubt. Accordingly, accused Ishrar Ahmed is found not guilty in the present case and resultantly, stands acquitted in the present case.
22. Accused is directed to furnish bonds in the sum of Rs.10,000/- each 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. Digitally signed by VIPUL SANDWAR VIPUL Date:
SANDWAR 2023.01.25
16:13:43
+0530
Announced in the open (VIPUL SANDWAR)
Court on 25th January, 2023 MM-02/NE/KKD COURTS
FIR No.514/2004 State vs. Nizam & Anr. PS Seelampur Page No.10 of 10