Delhi District Court
State vs Mohd Daud on 30 September, 2019
FIR No.727/2015
PS I.P.Estate
U/s 323/341 IPC
State Vs Mohd Daud
IN THE COURT OF SH. VIPLAV DABAS
METROPOLITAN MAGISTRATE03: CENTRAL, DELHI
CIS No. 303562/2016
FIR No.727/2015
PS I.P.Estate
U/s 323/341 IPC
State Vs Mohd Daud
Date of Institution of case : 02.07.2016
Date of Judgment : 30.09.2019
JUDGMENT:
a) Date of offence : 15.11.2015 b) Offence complained of : U/s 323/341 IPC c) Name of Accused, his : Mohd Daud parentage & residence S/o Mustak Ahmed R/o Jhuggi No. C4/336, LNJP Colony, Delhi. d) Plea of Accused : Pleaded not guilty e) Final order : Convicted Page No. 1/12 FIR No.727/2015 PS I.P.Estate U/s 323/341 IPC State Vs Mohd Daud BRIEF FACTS AND REASONS FOR DECISION: Case of the prosecution in brief is as follows:
1. On 15.11.2015 at around 12:00 (midnight) at Ranjeet Singh Road, Near Nehru Hill, Delhi within the jurisdiction of PS I.P.Estate, accused Mohd Daud criminally restrained the complainant & inflicted simple injury by using broken glass bottle. On the basis of the said allegations, present FIR was registered and a chargesheet for offences punishable u/s 323/341 IPC was filed after usual investigation.
2. The Court took cognizance of the abovesaid offence u/s 323/341 IPC and provision of Section 207 Cr.P.C complied. After hearing arguments, as a prime facie case was made out against the accused Mohd Daud for offences punishable u/s 324/341 IPC, charge was accordingly framed upon him to which accused pleaded not guilty and claimed trail.
3. In order to prove the guilt of the accused u/s 324/341 IPC, the prosecution has to prove the following essential ingredients of the said Sections:
a) Section 324 IPC: That the accused voluntarily caused bodily pain, disease or infirmity to the victim, that accused did so intentionally or with knowledge the hurt would cause bodily pain disease or infirmity to the victim and that the hurt was caused by any shooting, stabbing, cutting instrument etc.
b) Section 341 IPC: That the accused obstructed a person, that he did it voluntarily and that the obstruction prevented such person from proceeding in a Page No. 2/12 FIR No.727/2015 PS I.P.Estate U/s 323/341 IPC State Vs Mohd Daud direction in which he had a right to proceed.
4. To prove its case, prosecution examined three witnesses in the present case.
5. PW1 Suhail deposed that on 15.11.2015, at about 11.0012.00 p.m. in the night, after taking dinner, he was walking in front of Nehru bridge on the road where accused Mohd. Daud (present in the court and correctly identified) was sitting. PW1 Suhail further deposed that accused called him and directed him to bring a cigarette but he refused to bring the same, on which accused slapped him, that thereafter, when he was going towards his jhuggi, he heard some noise and saw that accused broke a glass bottle and hit on his face and due to which he sustained injuries on his left eye and cheek, that police official shifted him to LNJP hospital, that the doctor had given stitches on his cheek and eye, that police had recorded his statement Ex. PW1/A & that IO prepared site plan at his instance. The photograph brought by the complainant is Ex. P1.
During cross examination conducted on behalf of accused, the witness deposed that he is illiterate and can tell time but on the day of incident he was not wearing watch and volunteered that the watch was lying in his house, that the distance between the place of incident and his house is about 1520 meters, that the place of incident could not be seen from his residence, that 3040 persons were present near the spot and volunteered that after the incident they fled away from the spot, that they were playing cards, that Police had recorded his statement in the hospital, that he does not remember the time and date when his statement was Page No. 3/12 FIR No.727/2015 PS I.P.Estate U/s 323/341 IPC State Vs Mohd Daud recorded, that he had not called on 100 number, that he had told the IO that accused had slapped him. (confronted with statement Ex. PW1/A, where it is not so recorded.), that he does not remember the date and time when IO prepared the site plan, that he does not remember the time when he reached the hospital and that the CCTV cameras were not installed at the spot. The witness denied the suggestion that accused had not hit with the broken glass bottle as alleged, that IO had not prepared site plan at his instance and that he is deposing falsely.
6. PW2 Ct. Ramkhiladi deposed that on 15.11.2015, he was posted at PS IP Estate as constable and on that day, he was on emergency duty in night, that at about 12.00 (mid night) after receiving a PCR call, he along with HC Bodan Lal reached at spot where they came to know that injured was already shifted to LNJP by PCR van, that thereafter they went to LNJP hospital, that IO tried to took the statement of injured but he was under treatment, that IO had recorded the statement of injured at about 7.00 a.m and prepared rukka and same was handed over to him for the registration of the FIR, that he went to the PS for the registration of the FIR, that he got the FIR registered and came back to the spot and handed over the copy of the FIR and original rukka to the IO, that IO arrested the accused and personally searched the accused and prepared arrest memo and personal search memo Ex. PW2/A and Ex. PW2/B, both bearing his signature at point A. During cross examination conducted on behalf of accused, the witness deposed that he does not remember whether he had made any departure entry before leaving the police station for hospital, that he reached the hospital at around 12 Page No. 4/12 FIR No.727/2015 PS I.P.Estate U/s 323/341 IPC State Vs Mohd Daud midnight or 12.15 am, that no public person or relative of the complainant Sohail met him in the hospital, that IO recorded the statement of complainant Sohail in his presence in the hospital, that he left the hospital for the spot at about 1 or 1.30 am, that complainant Sohail had not accompanied him at the spot at that time and that no CCTV cameras were installed at or around the spot.
The witness denied the suggestion that CCTV cameras were installed at or around the spot, that no public person was available at the spot, that complainant had identified the accused in his presence as an offender, that the complainant had not identified the accused in his presence, that he had not joined the investigation and that his signatures were taken on various documents as mentioned in examination in chief while sitting at police station without going to the spot.
7. PW3 Statement ASI Bodan Lal deposed that on 15.11.2015, he was posted at PS IP Estate as HC and on that day, he was on emergency duty in night, that at about 12.0012.15 am, he received DD No. 3 JPN regarding a quarrel at Maharaja Ranjeet Singh Marg in front of Nehru bridge, that thereafter he along with Ct. Ram khiladi reached at spot where he came to know that PCR had shifted the injured to LNJP hospital, thereafter they went to LNJP hospital and collected the MLC of the injured, that injured was under treatment and at about 7.00a.m, he recorded statement of the injured Ex. PW1/A, that he prepared rukka Ex. PW3/A and same was handed over to Ct. Ramkhiladi for the registration of the FIR who went to the PS for the registration of the FIR and after some time he came back to the spot and handed over copy of the FIR and original rukka to him, that he prepared the site Page No. 5/12 FIR No.727/2015 PS I.P.Estate U/s 323/341 IPC State Vs Mohd Daud plan Ex. PW1/B & that he arrested and conducted personally search of the accused and prepared arrest memo and personal search memo Ex. PW2/A and Ex. PW2/B. The witness correctly identified the accused present in the Court. During cross examination conducted on behalf of accused, the witness deposed that when he reached at the spot, no one was present there, that he reached the spot on foot, that the injured was already rushed to the hospital, that he had asked public persons to join the investigation but they declined and that he did not take any action against public persons who declined to join. The witness denied the suggestion that he did not properly investigate the case and that he has been falsely implicated in the present case by the complainant due to previous enmity between them. It is wrong to suggest that I am deposing falsely.
8. On 22.04.2019 and 07.06.2019, vide a separate statement, the accused admitted the factum of registration of FIR Ex. P1, preparation of certificate under Section 65 B of Indian Evidence Act Ex. A2 and MLC Ex. A3 and the prosecution witness qua the aforesaid document was dropped.
9. Thereafter, on 07.06.2019, prosecution Evidence was closed as all the material witnesses were examined.
10. On 09.07.2019, the Statement of accused was recorded U/Sec 313 read with 281 Cr. P.C and all the incriminating circumstances appearing in evidence were put to the accused to which the accused replied that he is innocent. He further submitted Page No. 6/12 FIR No.727/2015 PS I.P.Estate U/s 323/341 IPC State Vs Mohd Daud that complainant Mohd Suhail is the brother of one of his friend and Mohd Suhail is a professional pick pocketer who had sold stolen mobile to one of his friend for which he was demanding more money than agreed before upon which he had scolded him. Accused further submitted that he had also abused upon which his friend had a sudden scuffle with him and in this process he fell down and sustained injuries. Accused further submitted he did not cause any injury and he has been falsely implicated in the present case. The accused did not choose to lead evidence in his defence so the defence evidence was closed and matter was fixed for final arguments.
11. At the time of final arguments it is submitted by Ld. APP for the State that prosecution has proved its case beyond reasonable doubts and all the ingredients of relevant sections are completed. In reply to this it is argued on behalf of accused that accused that accused is innocent and he has been falsely implicated in this case which is clear from the testimony of injured who improved his version by deposing that the accused had slapped him and failed to tell the date / time when the IO prepared the site plan and reached the hospital. Ld. LAC for accused further stated that broken bottle or its shreds (weapon of offence) has not been recovered by the investigating agency which being a material omission indicates that the alleged incident did not take place and accused has been implicated due to old enmity.
12. In order to establish the guilt of the accused for offence punishable u/s 324/34 IPC, it is imperative to the prosecution to establish the identity of the Page No. 7/12 FIR No.727/2015 PS I.P.Estate U/s 323/341 IPC State Vs Mohd Daud accused as the offender as well as the fact that simple hurt was caused to the victim / complainant by using dangerous weapon voluntarily and that the victim was also obstructed by the offender from proceeding in a direction in which he had right to proceed. Keeping in mind the aforesaid ingredients it is the testimony of PW1 i.e Victim / complainant which is the most relevant piece of evidence for fastening the criminal liability on the accused for the alleged offences.
13. Perusal of the testimony of PW1 Mohd Suhail reveals that PW1 firmly deposed in his examination in chief that on 15.11.2015, at about 11.0012.00 p.m. in the night, after taking dinner, he was walking in front of Nehru bridge on the road where accused Mohd. Daud (present in the court and correctly identified) was sitting. PW1 Suhail further deposed that accused called him and directed him to bring a cigarette but he refused to bring the same, on which accused slapped him, that thereafter, when he was going towards his jhuggi, he heard some noise and saw that accused broke a glass bottle and hit on his face and due to which he sustained injuries on his left eye and cheek, that police official shifted him to LNJP hospital & that the doctor had given stitches on his cheek and eye.
The aforesaid testimony shows that the victim / PW1 correctly identified the accused in the Court and further narrated the manner in which he was hit on his face by the accused on his refusal to bring the cigarette. It is further evident from the cross examination of PW1 that the said version of presence of the accused on the spot and hitting the PW1 on his face has gone unchallenged as no specific suggestion to negate the same was put on behalf of accused.
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14. Record further shows that at the time of recording of statement u/s 313 r.w Section 281 Cr.P.C, the accused stated that complainant Mohd Suhail is the brother of one of his friend and Mohd Suhail is a professional pick pocketer who had sold stolen mobile to one of his friend for which he was demanding more money than agreed before upon which he had scolded him. Accused further submitted that he had also abused upon which his friend had a sudden scuffle with him and in this process he fell down and sustained injuries.
Perusal of the aforesaid statement reveals that accused has himself admitted the fact that he had scolded the victim and also there was a sudden scuffle with accused's friend during which the victim fell down and sustained injuries which corroborates the version of the prosecution qua happening of the incident.
15. Regarding the happening of the alleged incident, in the statement of accused recorded u/s 313 r.w Section 281 Cr.P.C, the accused further stated that he did not cause any injury and he has been falsely implicated in this case but the aforesaid version of victim's scuffle with his friend and not causing any injury as well as the false implication was neither put to PW1 during his cross examination nor any independent evidence has been led on behalf of accused by calling his friend to establish the same which indicates that the alleged version of false implication and sustaining injury by the complainant on his own due to fall during the scuffle with friend of accused is an after thought and thus can not be relied upon.
16. Record further shows that the accused has admitted the factum of preparation Page No. 9/12 FIR No.727/2015 PS I.P.Estate U/s 323/341 IPC State Vs Mohd Daud of MLC of the victim / PW1 which is Ex. A2 wherein it has been opined by the Doctors that nature of injury sustained by the complainant is simple.
The aforesaid testimonies of PW1 shows that prosecution has been able to establish beyond the reasonable doubt that the complainant had a scuffle with the accused and that simple injury was caused to the victim / PW1 in the alleged incident.
17. It is further reflected from the record that the broken bottle (the weapon of offence) has not been recovered during investigation. Ld. Counsel for the accused has argued that the failure of the investigating agency to recover the weapon of offence i.e broken bottle or its shreds as well as the improvement made by the victim / PW1 in his testimony to the effect that accused has slapped him which does not find mention in the statement u/s 161 Cr.P.C and the failure of the victim to tell the date and time as to when the IO prepared the site plan and as to when he reached the hospital are fatal to the version of the prosecution as the same go the very roots of the prosecution case.
It is further argued that nonjoinder of the public persons in the investigation is also fatal to the prosecution version and the same falsifies the entire case of the prosecution.
18. Considering the observations made while appreciating the firm, consistent and creditworthy testimony of PW1 as above, the version stated by the accused regarding the happening of the scuffle with the complainant and his omission to Page No. 10/12 FIR No.727/2015 PS I.P.Estate U/s 323/341 IPC State Vs Mohd Daud lead any positive evidence, the nonrecovery of broken glass bottle and the voluntaril clarification given by the PW1 in his cross examination that after the incident 3040 persons present near the spot fled away from the spot which has gone unrebutted, this Court is of the view that the version of slapping as deposed by PW 1 in his testimony and nonjoinder of the public persons and the independent witness alongwith nonrecovery of broken glass bottle can not be treated as material omission, inconsistency or improvement having the effect of vitiating the entire prosecution version and thus arguments made on behalf of accused are of no consequence to doubt the creditworthiness of PW1 as well as version of the prosecution qua the factum of causing simple injuries to complainant by accused.
It is apparent that there is no material suggesting the use of dangerous means to cause simple injury to the victim, so charge u/s 324 IPC can not be said to have been established beyond the reasonable doubt. But considering that the ingredients of minor offence punishable u/s 323 IPC have been sufficiently proved beyond reasonable doubts, the accused Mohd Daud S/o Mustak Ahmed is convicted for offence punishable u/s 323 IPC. It is further reflected from the aforesaid testimony of PW1 and the record that no specific allegations of wrongful restraint or confinement have been made by the victim / PW1 in his entire testimony indicating that there is no material suggesting the commission of the offence punishable u/s 341 IPC.
19. In view of the aforesaid discussion, this Court is of the view that the prosecution has not been able to prove its case against the accused beyond Page No. 11/12 FIR No.727/2015 PS I.P.Estate U/s 323/341 IPC State Vs Mohd Daud reasonable doubts for offence punishable u/s 341 IPC and successfully proved its case beyond reasonable doubts for offence punishable u/s 323 IPC. Accordingly, accused Mohd Daud S/o Mustak Ahmed is hereby acquitted of the charge u/s 341 IPC and convicted for offence punishable u/s 323 IPC levelled against him.
20. Let the convict be heard on the point of sentence.
VIPLAV Digitally signed by
VIPLAV DABAS
Date: 2019.10.01
DABAS 19:06:14 +0530
Announced in the Open Court (VIPLAV DABAS)
today i.e on 30.09.2019 MM03/CENTRAL:DELHI
30.09.2019
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