Delhi District Court
Fir No. 718/2015 State vs . Abbas & Ors. on 26 August, 2020
FIR No. 718/2015 State Vs. Abbas & Ors.
PS : New Ashok Nagar CNR No. DLET020076642016
IN THE COURT OF ADDITIONAL CHIEF
METROPOLITAN MAGISTRATE (EAST)
KARKARDOOMA COURTS, DELHI.
Presiding Officer: Dinesh Kumar, DJS.
IN THE MATTER OF :
State Vs. Abbas and Ors.
FIR No. 718/2015
PS : New Ashok Nagar
U/s: 323/341/509/506/34 IPC
Date of Institution : 09.11.2016
Date of reserving of order : 19.08.2020
Date of Judgment : 26.08.2020
CNR No. : DLET020076642016
JUDGMENT
1. Serial No. of the case : 14833/2016
2. Name of the Complainant : Sh. Sudhir Kumar Gupta
3. Date of incident : 04.06.2015
4. Names of accused persons :
1. Abbas S/o Faiyaz Khan
2. Afjal S/o Abbas
3. Imran S/o Abbas
All R/o H. No. B-1/68C, New Ashok Nagar,
Delhi.
5. Offence for which chargesheet
has been filed : S. 323/341/509/506/34, IPC
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FIR No. 718/2015 State Vs. Abbas & Ors.
PS : New Ashok Nagar CNR No. DLET020076642016
6. Offence for which charge
has been framed : As Above
7. Plea of accused : Not guilty
8. Final Order : Acquitted
9. Date of Judgment :26.08.2020
BRIEF REASONS FOR ORDER:
1. Mr. Abbas, Mr. Afjal and Mr. Imran, the accused herein, have been chargesheeted for committing offences punishable under Section 323/341/509/506/34, the Indian Penal Code (45 of 1860) (hereinafter referred to as "IPC").
2. The case of the prosecution is that on 04.06.2015, at about 6.00 p.m., Ms. Mamta, wife of complainant Sudhir Kumar Gupta, had been watering plants outside her house. During that time, accused Afjal Ali had come at the spot driving his vehicle and some water got dropped on his vehicle. Accused Afjal became angry. He called his father accused Abbas and his brother Imran on the spot. They started abusing the complainant. When the complainant objected, they started beating him. His wife Mamta and his sister in law Rajesh tried to save him. However, accused Imran manhandled them. Abbas caught hold of him and other two accused started beating him. The PCR was called. Present FIR was registered on the basis of Page 2 of 18 ACMM(EAST)/KKD/Delhi/26.08.2020. FIR No. 718/2015 State Vs. Abbas & Ors.
PS : New Ashok Nagar CNR No. DLET020076642016 the statement of the Complainant. After completion of investigation 'final report' was filed by the Investigation Officer (IO) in the Court and the accused were charge-sheeted for committing the offences punishable under Section 323/341/509/506/34, IPC.
3. After perusing the record, cognizance was taken by the Ld. Predecessor and summons were issued to the accused. The 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 323/341/509/506(1)/34, IPC was framed upon the accused persons. It was read over to them, to which, they pleaded not guilty and claimed trial.
4. The prosecution has examined witnesses to prove its case and total 5 witnesses have been examined by the prosecution.
5. PW1 Sh. Sudhir Kumar is the complainant in the present case. He would state that he was residing at B-1/68D, New Ashok Nagar, Delhi. On 04.06.2015, at about 6.00 p.m., his wife was giving water to plants, which were planted outside his house. In the meanwhile accused Abbas came there in his car. Some water fell on his abovesaid car, on which Abbas got angry and started abusing his wife. Thereafter, Abbas called his Page 3 of 18 ACMM(EAST)/KKD/Delhi/26.08.2020. FIR No. 718/2015 State Vs. Abbas & Ors.
PS : New Ashok Nagar CNR No. DLET020076642016 sons/co-accused Ibrahim and Ajaval (sic). Accused Ibrahim and Ajaval reached at the spot and started quarreling. He was sitting inside his home and on hearing the noise, he came outside and saw that abovesaid three accused persons were abusing his wife. Thereafter, he came at the spot and Abbas caught hold of his hands. Accused lmran twisted his fingers of right hand and due to said twisting, his finger also got broken. Thereafter, his sister-in-Iaw (SaIi) also intervened in the incident in order to save them. However, the accused persons pushed her away. Thereafter, he made a call at 100 number, upon which, police officers came at the spot and took him to the hospital. The witness correctly identified the accused persons in the Court. He has also proved his statement to the police which is Ex.PW-1/A. He had also shown the place of incident to the police.
6. PW-2 Smt. Mamta is the wife of complainant. She would depose that on 04.06.2015 at about 6.00 p.m., she was giving water to the plants outside her home. Accused Afzal came in one car. By mistake some water fell on the car of accused Afzal, on which, accused started abusing her. Thereafter, accused Afzal called lmran and Abbas at the spot and they started beating her. Her husband intervened, upon which, they also started beating her husband. Her sister also came at the spot and started Page 4 of 18 ACMM(EAST)/KKD/Delhi/26.08.2020. FIR No. 718/2015 State Vs. Abbas & Ors.
PS : New Ashok Nagar CNR No. DLET020076642016 protecting them, on which accused persons also gave beatings to her sister. Accused Abbas and Afzal abused her and threatened her by stating, "Abhi batata hu tujhe ruk ja." Thereafter, a call was made at 100 number, on which police officials came at the spot and they took them to the hospital, where their medical examination was conducted. The witness identified the accused persons in the Court.
7. PW-3 Smt. Rajesh is the sister in law of the complainant. She would state that at the time of incident, she was sitting outside her home and she saw that quarrel was going on between Sudhir, Mamta and accused persons. Thereafter, she reached at the spot along with her father lnderjeet Gupta. Accused lmran had snatched hand-stick from her father, who was old and having hand-stick, and started beating her and he gave two blows on her left leg. She was medically examined at LBS Hospital. Police officer recorded her statement. She also identified the accused persons in the Court. She did not remember the date of incident. She voluntarily state that when she reached at the spot, the quarrel had already begun.
8. PW-4 Ct. Dinesh is the police official who had joined the investigation. He would depose that on 04.06.2015, after receiving information regarding quarrel, he reached at the spot Page 5 of 18 ACMM(EAST)/KKD/Delhi/26.08.2020. FIR No. 718/2015 State Vs. Abbas & Ors.
PS : New Ashok Nagar CNR No. DLET020076642016 i.e. B-1 Block, New Ashok Nagar. Public persons informed him that injured had been taken to hospital by PCR van. Thereafter, he along with IO reached at the LBS Hospital. The IO obtained MLC. He recorded statement of injured and prepared a Tehrir. It was handed over to him for registration of FIR. Thereafter, he got registered the FIR and handed over the copy of FIR and Tehrir to IO at LBS Hospital. Thereafter, he left for the PS.
9. The witness was cross examined by Ld. APP. He admitted the suggestion that accused persons were bound down by the IO.
10. PW-5 HC Harveer is the Investigating Officer of the case. He would depose that on 04.06.2015, after receiving DD No. 38A regarding quarrel, he reached at the spot, where PW-4 Ct. Dinesh was found present. He informed that the injured had been taken to LBS Hospital by PCR. Thereafter, he went to LBS Hospital, where he recorded the statement Ex. PW-1/A of the complainant. At about 08:15 p.m., he prepared a tehrir and handed over to Ct. Dinesh for registration of FIR. Thereafter, he alongwith the complainant came back at the spot, where he prepared site plan Ex. PW-5/A at the instance of the complainant. In the meanwhile, Ct. Dinesh came back at the spot at about 9.30 p.m., along with copy of FIR and rukka.
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Accused persons were bound down vide memos which are Ex. PW-5/B (colly). He recorded the statement of the witnesses.
11. The prosecution witnesses were cross examined by Ld. Defence Counsel. The prosecution Evidence was closed.
12. The accused were examined under Section 313 Cr.P.C., r/w Section 281 Cr.P.C. The accused denied the incriminating evidence. They would state that they were innocent. No such incident had happened. Accused Afjal would state that he was not even present at his home at the time of the incident. He had returned from his college when he was informed that his name was also involved in the said incident. Accused Imran would state that he did not know why he was made an accused in the present case. Accused Abbas also denied any such incident. He would state that he used to do business of property dealing with the complainant. However, later on he started his separate work. Therefore, the complainant had developed some enmity towards him. On the day of incident some altercation had taken place between them. He had also called the PCR. No quarrel as alleged had taken place.
13. The accused persons led defence evidence. They examined 2 witnesses in their defence.
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14. DW-1 Rajbir Thakur would depose that on 04.06.2015, he was going towards the house of Abbas. He saw that one lady was abusing Abbas. Few neighbours gathered at the spot and they pacified the matter. Thereafter, he left for his home. No incident had taken place in his presence and the accused persons were falsely implicated in the present matter.
15. DW-2 Sajjan Singh would depose that on 04.06.2015, he was going to the house of Abbas to pay rent. He saw that Mamta was abusing Abbas as some dispute had taken place due to throwing of water. Few neighbours gathered at the spot and pacified the matter. Thereafter, he left for his home. No incident had taken place in his presence and the accused persons were falsely implicated in the present matter.
16. The witnesses were cross-examined. The accused did not examined any other defence witness. Therefore, matter was fixed for final arguments.
17. Ld. APP for the State would argue that the prosecution has proved its case on the basis of testimonies of the witnesses. There is no reason to doubt their testimonies. The accused have taken false defence. There is no basis of the testimonies of DW- 1 and DW2. They have deposed falsely to save the accused Page 8 of 18 ACMM(EAST)/KKD/Delhi/26.08.2020. FIR No. 718/2015 State Vs. Abbas & Ors.
PS : New Ashok Nagar CNR No. DLET020076642016 persons. Hence, it is prayed, the accused persons may be convicted.
18. Ld. counsel for the accused, on the other hand, would argue that the accused persons are innocent and they have been falsely implicated. There are various contradictions in the testimonies of the witnesses. No such incident as alleged had happened. A false complaint was made to implicate the accused persons. No incident as alleged had taken place. The defence witnesses have shown that false complaint was made by the complainant. It is prayed that the benefit of doubts may be given to the accused persons and they may be acquitted.
19. I have heard the rival submissions and carefully perused the material available on record.
20. It is trite that in criminal jurisprudence, the prosecution is under an obligation to prove its case against the accused beyond reasonable doubt. The standard of proof to be adopted in criminal cases is not merely of preponderance of probabilities but proof beyond reasonable doubts on the basis of cogent, convincing and reliable evidence. It is also well settled that in case of doubt, the benefit must necessarily be given to the accused. It is also settled position of law that whenever there are Page 9 of 18 ACMM(EAST)/KKD/Delhi/26.08.2020. FIR No. 718/2015 State Vs. Abbas & Ors.
PS : New Ashok Nagar CNR No. DLET020076642016 two views possible, the view which favours the innocence of the accused is to be accepted by the Court.
21. In the present case, the accused have been charged for committing offences punishable under Sections 323/341/506(1)/ 509/34, IPC. Section 323 IPC provides punishment for voluntarily causing hurt to any person. Section 319 IPC defines hurt as causing bodily pain, disease or infirmity to any person. Section 341 IPC provides punishment for 'wrongful restraint'. Section 339 IPC defines 'wrongful restraint' as voluntarily obstructing any person so as to prevent that person from proceeding in any direction in which that person has a right to proceed. Section 34 IPC provides that when a criminal act is done by several persons in furtherance of the common intention of all, each of such person is liable for that act in the same manner as if it were done by him alone. In order to bring a case under Section 34 IPC it is not necessary that there must be a prior conspiracy or pre-meditation, the common intention can be formed in the Course of occurrence.
22. Section 506, IPC provides punishment for criminal intimidation. Offence of criminal intimidation has been defined under Section 503 IPC. Section 509 IPC provides punishment Page 10 of 18 ACMM(EAST)/KKD/Delhi/26.08.2020. FIR No. 718/2015 State Vs. Abbas & Ors.
PS : New Ashok Nagar CNR No. DLET020076642016 for insulting the modesty of a woman. The Sections read as under :
"503. Criminal intimidation.--Whoever threatens another with any injury to his person, reputation or property, or to the person or reputation of any one in whom that person is interested, with intent to cause alarm to that person, or to cause that person to do any act which he is not legally bound to do, or to omit to do any act which that person is legally entitled to do, as the means of avoiding the execution of such threat, commits criminal intimidation. Explanation.--A threat to injure the reputation of any deceased person in whom the person threatened is interested, is within this section.
"509. Word, gesture or act intended to insult the modesty of a woman.--Whoever, intending to insult the modesty of any woman, utters any word, makes any sound or gesture, or exhibits any object, intending that such word or sound shall be heard, or that such gesture or object shall be seen, by such woman, or intrudes upon the privacy of such woman, shall be punished with simple imprisonment for a term which may extend to one year, or with fine, or with both."
23. To prove an offence under Section 506 IPC, it is essential that the ingredients of Section 503 IPC are proved. The prosecution must prove that the accused had threatened the victim/s with injury to his person, reputation or property, or to Page 11 of 18 ACMM(EAST)/KKD/Delhi/26.08.2020. FIR No. 718/2015 State Vs. Abbas & Ors.
PS : New Ashok Nagar CNR No. DLET020076642016 the person or reputation of any one in whom that victim is interested. The prosecution must also prove that the intention of the accused was to cause harm to that person, or to cause that person to do any act which he is not legally bound to do, as means of avoiding execution of such threats, or to cause that person to omit to do any act which that person is legally entitled to do, as the means of avoiding execution of such threat.
24. Besides the above stated three requirements as mentioned in the Section itself, it is also required to be proved that the alleged threat caused alarm to the complainant. Mere threat in itself is not an offence. If the person advancing such threats is unable of executing them, and if the person, to whom such threats are advanced, do not get alarmed by raising of such threats alone, no offence is made out. In judgment titled Amitabh Vs. NCT of Delhi 2000 CRI. L.J.4772 the Hon'ble Delhi High Court has observed as under:
"The averments made in the FIR and in the case diary statement of the complainant against the petitioners also do not satisfy the essential ingredients of the offences punishable under section 506/509 IPC. The threats alleged to have been given to the complainant Ms. Bharti by the petitioners do not fall within the definition of criminal intimidation in as much as the complainant has nowhere stated that the threats Page 12 of 18 ACMM(EAST)/KKD/Delhi/26.08.2020. FIR No. 718/2015 State Vs. Abbas & Ors. PS : New Ashok Nagar CNR No. DLET020076642016 given by the petitioners caused an alarm to her. It is well settled that mere threat is no offence".
25. In judgment titled Kanshi Ram Vs. State 86(2000) DLT 609 the Hon'ble Delhi High Court observed in para 11 as follows:-
"So far as the offence under section 506 IPC is concerned, the complainant Israr Ahmed stated in his case diary statement that at the relevant time the petitioner had exhorted his security personnel to thrash the journalists. According to Israr Ahmed, the exact words used by the petitioner were "Maro Salon Ko". Strangely enough, Israr Ahmed has nowhere stated in his statement that the alleged threat had caused an alarm to him. On the contrary, the circumstances of the case clearly go to show that even after the alleged threat, the complainant or other media persons did not retrace their steps. It is well-settled that mere threat is no offence. That being so, the threat alleged to have been given by the petitioner does not fall within the mischief of Section 506 IPC. Consequently, no charge under section 506 IPC can be framed against the petitioner on the basis of the said evidence".(Emphasis supplied).
26. In judgment titled Surinder Suri Vs State of Haryana 1996(2) RCR the Hon'ble Punjab and Haryana High Court has observed as follows:-
"The gist of the offence is the effect which the threat is intended to have upon the mind of the Page 13 of 18 ACMM(EAST)/KKD/Delhi/26.08.2020. FIR No. 718/2015 State Vs. Abbas & Ors. PS : New Ashok Nagar CNR No. DLET020076642016 person threatened. The threat must be one which can be put into execution by the person threatening. A threat, in order to be indictable must be made with intent to cause alarm to the complainant. As for instance, mere vague allegations by the accused that he is going to take revenge by false complaints cannot amount to criminal intimidation".
27. Thus, it is no more res integra that in order to prove the offence under Section 506, IPC, there must be evidence to show that the complainant was alarmed by the threats advanced by the accused.
28. In the present case, there is not even an iota of evidence to prove that the complainant or his family members were alarmed by any threat advanced by the accused, if at all any such threats were ever advanced. No witness has stated what was the threat advanced by the accused persons. Therefore, I am of the opinion that the accused can not be convicted for the offence punishable under Section 506, IPC.
29. In the present case, the allegations of the prosecution are also that the accused persons, in furtherance of their common intention, had caused simple injuries to the complainant and his family members. It has also been alleged that in furtherance of their common intention they had voluntarily wrongfully restrained the complainant. It is also alleged that the accused Page 14 of 18 ACMM(EAST)/KKD/Delhi/26.08.2020. FIR No. 718/2015 State Vs. Abbas & Ors.
PS : New Ashok Nagar CNR No. DLET020076642016 persons had uttered offensive words towards wife and sister in law of the complainant.
30. In the present case, as the record would reveal, the prosecution has examined three eye witnesses of the alleged incident including the complainant. All the three have also claimed themselves victims of the incident in question. Material contradictions have been noticed in their testimonies. PW-1 complainant Sudhir Kumar has stated in his testimony that in the quarrel, accused Imran had twisted his finger and therefore it was broken. However, the MLC of the complainant is on record. It is Ex.A-3. There is specific observation of the doctor that there was no bony injury to the complainant. Further, PW1 has stated that the accused persons had been abusing his wife and therefore he had come outside his home and tried to intervene. PW2, Ms. Mamta has, on the other hand, stated that the accused persons had been beating her and therefore her husband, the complainant, had come outside the house to intervene. PW1 has not stated that the accused persons had been beating his wife when he came out of his house. Further, neither PW1 nor PW2 has stated that father of PW2 and PW3 had also reached at the spot with PW3.
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31. There are also contradictions in the testimonies of the witnesses in relation to the fact as to which accused had arrived at the spot in a car. PW1, complainant Sudhir Gupta has stated in his statement to the IO that accused Afjal had come in the car on the spot when his wife was watering the plants. He has also stated that after altercation he had called his father Abbas and his brother Imran on the spot. Thus, as per the statement of the complainant which became the basis of the FIR, accused Abbas and Imran had reached at the spot after they were called by accused Afjal and the quarrel had been started by Afjal. However, in the Court, PW 1 has deposed that accused Abbas had come at the spot in his car and he had started the quarrel. He has also stated that Abbas had called his sons on the spot. PW2 has stated that accused Afjal had come on the spot in car and he had called other two accused persons on the spot. The victims and the accused are neighbors. It does not appear to be possible that they might have forgotten the names of the accused persons and therefore made those contradictory statements. It has come in the testimonies of the prosecution witnesses that they had good relations with the family of the accused persons prior to the alleged incident. There can be only one prima facie reason of making such contradictory statements Page 16 of 18 ACMM(EAST)/KKD/Delhi/26.08.2020. FIR No. 718/2015 State Vs. Abbas & Ors.
PS : New Ashok Nagar CNR No. DLET020076642016 that no such incident had actually happened and a story was concocted to implicate all the accused persons.
32. All the three victims are family members. All the accused are also members of one family. The victims have stated in their testimonies that public persons had gathered at the spot at the time of alleged incident. However, there is no public person, not related to the victims, examined by the prosecution to show that the accused persons had beaten the victims and that they had also committed the offence of wrongful restraint and that they had used words, gesture etc. to insult the modesty of female. The accused persons, on the other hand, have examined two public persons who have stated that no such incident had happened. There is nothing on record to show that the public persons examined by the accused are interested witnesses or that they are related to the accused persons in any manner. On one hand there are testimonies of the victims who are interested witnesses. On the other hand, there are testimonies of two defence witnesses who are not shown to have any interest in the matter. As per law, an accused is not required to prove his defence beyond all reasonable doubts. It is sufficient if he proves his defence on the preponderance of probabilities. It is also settled proposition of law that whenever there are two Page 17 of 18 ACMM(EAST)/KKD/Delhi/26.08.2020. FIR No. 718/2015 State Vs. Abbas & Ors.
PS : New Ashok Nagar CNR No. DLET020076642016 views possible, the view which favours the innocence of the accused has to be accepted by the Court. In the present case, as discussed herein-above, reasonable doubts have been raised by the defence on the case of the prosecution. It would not be safe to convict the accused persons in the present case without corroborating statement of any independent public witness. Therefore, benefit of reasonable doubts is to be given to the accused persons as per law.
33. In view of the discussions hereinabove, I hold that the prosecution has failed to prove its case against any of the accused beyond reasonable doubts. The accused are therefore acquitted.
34. The accused have already furnished bonds under Section 437A, Cr.P.C. with respective along with photographs and copies of address proof/s.
Pronounced in the open Court, through VC, today, on this 26th day of August 2020.
DINESH Digitally signed by
DINESH KUMAR
(Dinesh Kumar)
KUMAR Date: 2020.08.26
16:42:08 +05'30' ACMM (E)/KKD/Delhi.
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