Delhi District Court
State vs Mohd Danish@Aasif on 21 November, 2023
IN THE COURT OF METROPOLITAN MAGISTRATE-08,
SOUTH-EAST DISTRICT, SAKET COURTS, NEW DELHI
::: JUDGMENT :::
IN THE MATTER OF:
STATE Vs. MOHD. DANISH FIR NUMBER: 170/2023 UNDER SECTION: 326/324/34 IPC POLICE STATION: JAMIA NAGAR A. CNR No. of the Case : DLSE020231002023 B. Cr. Case No. 7501/2023 C. Date of Institution : 14.09.2023 D. Date of Commission of : 22.04.2023 Offence E. Name of the Complainant : Mr. Zikarya Siddiqui, S/o Late Shakeel Ahmad, R/o H. No. P-11, Batla House, Jamia Nagar, New Delhi F. Name of the Accused, his : Accused no. 1Mohd. Danish @ Parentage & Addresses Jafar @ Hau, S/o Sh. Mohd. Arif, R/o H. D-11/146, Azeem Dairy, Jamia Nagar, New Delhi Accused no. 2 Rajuddin @ Raju, S/o Sh. Majid Ali, R/o H-109, 5th Floor, Muradi Road, Batla House, Jamia Nagar, New Delhi G. Offence complained of : 326/324/34 IPC H. Plea of the Accused : Pleaded not guilty and claimed trial I. Judgment reserved on : 10.11.2023 J. Date of Judgment : 21.11.2023 K. Final Order : Convicted for the offence u/s 326/34 IPC and acquitted for the offence u/s 323/34 IPC ACCUSED DETAILS:
Sr. No. of the accused 1 2 Name of the accused Danish @ Jafar @ Hau Rajuddin @ Raju Date of Arrest 16.06.2022 10.10.2023 Date of release on Bail JC JC Offence charged with 326/323/34 IPC 326/323/34 IPC Whether Acquitted/ Convicted for the offence Convicted for the offence FIR No. 170/2023 State Vs. Mohd. Danish @ Aasif Page No. 1/25 convicted u/s 326/34 IPC and u/s 326/34 IPC and
acquitted for the offence acquitted for the offence u/s 323/34 IPC u/s 323/34 IPC Sentence Imposed -- --
Period of detention -- -- undergone during trial (for section 428 CrPC) LIST OF PROSECUTION WITNESS: Sr.No. Name of the Witness 1 Mr. Zikarya Siddiqui 2 ASI Ashok
LIST OF DOCUMENTS (PROVED BY THE PROSECUTION): Sr. No. Description of documents Exh. No. 1 Copy of FIR Ex. A-1 2 MLC No. 0067/2023 Ex. A-2 3 Complaint Ex. PW1/A 4 Arrest Memo of accused Danish Ex. PW1/B 5 Arrest Memo of accused Rajuddin Ex PW1/C 6 Site Plan Ex. PW2/A 7 Personal Search memo of accused Danish Ex. PW2/B 8 Interrogation of accused Danish Ex. PW2/C 10 Disclosure statement of accused Danish Ex. PW2/D 11 Disclosure statement of accused Ex. PW2/E 12 Pointing out memo Ex. PW2/F 13 Previous conviction/ involvement report of accused Ex PW2/G Danish 14 Previous conviction/ involvement report of accused Ex PW2/H Danish 15 Ex/ PW2/I 16 Personal Search Memo Ex. PW2/J 17 Disclosure statement of accused Rajuddin Ex. PW2/K 18 Pointing out memo Ex PW2/L DEFENCE WITNESS: None LIST OF DOCUMENTS (PROVED BY DEFENCE): NA CHRONOLOGY OF EVENTS:
Sr. No. Event Date
1 Registration of FIR 22.04.2023
2 Filing of Charge-sheet & 14.09.2023 & 21.10.2023
Supplementary chargesheet
3 Cognizance taken 25.10.2023
4 Charge framed 26.10.2023
5 PE closed 07.11.2023
6 SA recorded 10.11.2023
7 Final Arguments heard 10.11.2023
8 Judgment pronounced 21.11.2023
FIR No. 170/2023 State Vs. Mohd. Danish @ Aasif Page No. 2/25
Factual Background:
1. Briefly stated, the case of the prosecution against the accused is that on 22.04.2023, complainant was coming from house of his boss in his car bearing no. DL2CAU6537 and when he reached near Lal School, Batla Chowk, he saw there was a crowd. He has given horn and then one boy came near his car and hit on front glass of the car forcefully. Complainant opened window of his car and objected, that boy started misbehaving with him and said whether you run over the car on him. Then complainant tried to call his brother meanwhile that boy has opened the gate of the car of the complainant and started beating him. Another boy attacked him with some sharp-edged weapon which caused cut on his hand and then that boy has again attacked on face of the complainant which caused heavy bleeding. Thereafter, both boys ran away from the spot. Atif friend of the complainant has admitted the complainant in the hospital. On that basis, the present FIR was registered against the accused. Upon completion of investigation, charge sheet under section 341/326/34 of the Indian Penal Code (IPC) was filed and supplementary charge sheet was filed on 21.10.2023.
Court Proceedings:
2. This court took cognizance of the offence on 25.10.2023 and issued process against accused Danish @ Jafar @ Hau and Rajuddin @ Raju. Pursuant to the appearance of the accused persons, they were supplied with the copy of chargesheet in compliance of Section 207 CrPC.
Charge:
3. Upon hearing the arguments, vide order dated 26.10.2023, charge under section 326/323/34 IPC was ordered to be framed FIR No. 170/2023 State Vs. Mohd. Danish @ Aasif Page No. 3/25 against both the accused. The accused persons pleaded not guilty and the matter was listed for Prosecution Evidence ('PE').
Prosecution Evidence:
4. In order to establish its case against the accused persons, prosecution examined two witnesses namely Mr. Zikarya Siddiqui ('PW1') and ASI Ashok Kumar ('PW2').
5. PW1/ Zikaya Siddiqui deposed that he works with Times of India. He further deposed that on 22.04.2023 at around 3.30
-4.00 PM, at Batla House Chowk, he was there with his car swift bearing no. DL2CAU 6537. He was coming from the house of his senior Ms. Snigdha Puri, who is a resident of Greater Kailash, on the day of the incident. The day of incident was being celebrated as Eid festival. When he went through Batla House Chowk, these two persons namely Rajuddin & Danish @ Hau had stopped his car by striking the bonnut of his said car. Both the accused persons were correctly identified by the witness in court. He deposed that they broke the front windshield of his car.
He had opened the driver side window to ask them what the issue is about. Accused Danish opened the gate suddenly and both have attacked him with the sharp weapon on the left side lower chin, i.e. very close to neck and right hand. After the incident, he called his friend Atif Hassan. He took him to Artimas Hospital (previously known as Bansal Hospital), NFC, where he had given oral complaint to the police which was reduced into writing by the police. His complaint recorded by police is exhibited as Ex. PW1/A, bearing his signature at point A. He further deposed that he had got numerous stitches on his neck, face and hand. He told the investigation officer about the place, where the incident took place. The accused Danish was arrested by IO vide arrest memo which is identified by him as exhibit Ex. PW1/B, bearing his FIR No. 170/2023 State Vs. Mohd. Danish @ Aasif Page No. 4/25 signature at point A. The accused Rajuddin was arrested by IO vide arrest memo which is identified by him as exhibit Ex. PW1/C, bearing his signature at point A. He was called by the IO at the time of the arrest of the accused Rajuddin on the date of the arrest, but he was not called by the IO on the date of the arrest of the Accused Danish. He was called by the IO to sign the arrest memo of the accused Danish after G-20 in the month of September 2023. On that day accused Danish was not present at PS. Only he had visited and signed the arrest memo. He had gone alone to police station. He further deposed that due to the said incident, there is numbness in his right-hand little finger, which has sustained injuries by the blow of the accused persons. He deposed that he is a graphic designer in Times of India and due to this incidence and numbness, he could not perform his regular duties properly. Doctors have advised him surgery. He deposed that he could identify both the accused persons since he has seen photographs of both the accused in the mobile of his friend Atif. Atif has shown him the photographs in hospital.
6. During cross examination by Ld. LAC, PW1 deposed that the place of incident was a crowded place. He voluntarily deposed that one of the public persons, who was a nearby resident of the scene of incidence, had come to rescue him. The police officials had not gone to the scene of incidence with him. He voluntarily deposed that they just asked him in detail about the place of incidence. There was a CCTV Camera in the nearby pizza shop. He further voluntarily deposed that he does not know whether said CCTV camera was operative. He could not say whether IO recorded the statement of local residents nearby the scene of incidence. His friend Atif had informed to the police about the incidence. He does not know whether the statement of Atif was taken by the police. He was called at PS thrice including FIR No. 170/2023 State Vs. Mohd. Danish @ Aasif Page No. 5/25 the day of yesterday, i.e. 29.10.2023 for the purpose of receiving summons. He deposed that he could identify the accused persons as they attacked him, but later with photographs it was further confirmed that they were the same who attacked him at the time of incidence. He denied that he could not recognize the accused without photographs. He further denied that the only reason, he could recognize the accused persons was because the photographs were shown to him. The site plan was not prepared in front of him. He admitted that both accused persons were not arrested in his presence. Site plan does not bear his signature. He denied that the accused persons have been falsely arrested and implicated by him. He denied that accused persons did not attack him. He denied that he is falsely deposing at the instance of the IO.
7. PW2/ ASI Ashok deposed that on 22.04.2023, he was posted as SI at PS -Jamia Nagar. On the day, he received DD No. 29 that MLC has been prepared at erstwhile Bansal Hospital, NFC, now known as Artimas Hospital. He deposed that he then went to the Hospital along with Ct. Vikas. There he obtained the MLC; he found the victim/complainant Zakaria Siddiqui and he gave him the complaint and narrated the incident that occurred. That complaint was endorsed by him, which is already Ex. PW1/A, bearing his signature at point B. Result of the MLC was obtained on the same day. The FIR was registered on the basis of the complaint. A site plan was prepared at the instance of the complainant by him which is Ex. PW2/A, bearing his signature at point A. During investigation, it was found that culprits accused Danish & Rajuddin live near Azeem Dairy. It was informed through public that these were the persons, who attacked the complainant Zakaria Siddiqui. Through public, information was obtained that on 16.06.2023 both the accused FIR No. 170/2023 State Vs. Mohd. Danish @ Aasif Page No. 6/25 persons were present in Kabristan park and were consuming banned narcotics. Then he along with HC Raman, Yogesh and Ram Kishore raided the spot and arrested accused Danish, but accused Rajuddin escaped on noticing them. Accused Danish was arrested vide arrest memo already Ex. PW1/B, bearing his signature at point B. His personal search was conducted vide personal search memo which is Ex. PW2/B, bearing his signature at point A. Thereafter, interrogation and disclosure statement of accused Danish was recorded which identified as Ex. PW2/C & Ex. PW2/D respectively, bearing his signature at point A on each. Another disclosure statement of Accused Danish was recorded by him which is identified as Ex. PW2/E, bearing his signature at point A. A pointing out memo was also prepared by him of the accused Danish which is identified at Ex. PW. 2/F, bearing his signature at point A, where he took him to the place where he committed the offence along with Rajuddin against the victim/complainant. Previous conviction/involvement report of accused Danish & Rajuddin were also retrieved, which is Ex. PW2/G & Ex. PW2/H respectively. Then accused Danish was sent to JC. Accused Rajuddin was arrested in FIR No. 447/23 dated 07.10.23 which identified as Ex. PW2/I. Accused Rajuddin was formally arrested vide arrest memo already Ex. PW1/C, bearing his signature at point B. His personal search was conducted vide Ex. PW2/J, bearing his signature at point A. Thereafter, disclosure statement of accused Rajuddin was recorded which is identified as Ex. PW2/K, bearing his signature at point A. A pointing out memo was also prepared by him of the accused Rajuddin which is identified at Ex. PW. 2/L, bearing his signature at point A, where he disclosed him the place where he committed the offence with Danish against the FIR No. 170/2023 State Vs. Mohd. Danish @ Aasif Page No. 7/25 victim/complainant. Both the accused persons are correctly identified by the witness in court.
8. During cross examination by Ld. LAC, PW2 deposed that the information of the incident was received from the treating doctor. When he reached the hospital, complainant/victim and one lady and his brother met. Ct. Vikas was with him. He deposed that he recorded the statement of the complainant in the hospital itself. The statement of lady and brother of the victim present with victim/complainant was not recorded. He went to the spot on the same day. Ct. Vikas was with him. Public persons present at the spot refused to join the investigation. No notice was given to them. CCTV was not installed at the spot. No notice u/s 41 Cr PC was given to accused. Arrest memo of accused Danish bearing the signature of HC-Ram Kishore, HC- Raman, & complainant/victim. Site plan does not have signature of anyone except of him. He denied that he has falsely implicated the accused persons in the present case as site plan does not bears the signature of the victim/complainant. He denied that he never visited the spot and prepared the site plan on his own to implicate the accused persons in false and fabricated case. He denied that he is deposing falsely.
9. Vide order dated 07.11.2023, PE was closed.
Admission u/s 294 CrPC
10. In terms of section 294 CrPC, accused has admitted copy of FIR and MLC No. 0067/2023 as Ex A-1 and Ex. A-2 respectively.
Statement of the Accused:
11. On 10.11.2023, statement of accused under Section 313 Cr.P.C. read with Section 281 Cr.P.C. was recorded in which all incriminating material was put to them, to which they pleaded FIR No. 170/2023 State Vs. Mohd. Danish @ Aasif Page No. 8/25 innocence and claimed to have been falsely implicated. Accused persons have chosen not to lead any defence evidence.
Final Arguments:
12. Ld. LAC for both the accused has opened the argument and stated that weapon of the offence has not been recovered. IO has not conducted the test identification parade (TIP). Since TIP is not conducted and weapon is not recovered, the investigation is faulty and case of the prosecution is false. Prosecution has failed to prove this case beyond reasonable doubt. Therefore, accused persons are entitled to be acquitted of the alleged offences.
13. Ld. APP has submitted that prosecution has proved its case beyond reasonable doubt as the witness has identified the accused during his deposition and also proved entire case of the prosecution. Recovery of weapon is not sine qua non for proving the offence and faulty investigation can never be a ground to reject the case of the prosecution when PW1/injured witness has categorically proved this case. It is also submitted that alleged offence is grave and the accused persons be convicted of the offences charged.
14. This court has heard the submissions of Ld. APP for State and the Ld. LAC for accused and carefully perused the judicial record.
Discussion and Analysis:
15. At the outset, this court shall look at the settled position of law of offence punishable under section 326/323/34 of the Indian Penal Code (IPC)
16. Section 34 IPC: Acts done by several persons in furtherance of common intention - When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if FIR No. 170/2023 State Vs. Mohd. Danish @ Aasif Page No. 9/25 it were done by him alone.
17. Ordinarily, a person is responsible for his own act. A person can also be vicariously responsible for the acts of others if he had the common intention to commit the offence. The words "common intention" implies a prearranged plan and acting in concert pursuant to the plan. It must be proved that the criminal act was done in concert pursuant to the prearranged plan. Common intention comes into force prior to the commission of the act in point of time, which need not be a long gap. Under this section a preconcert in the sense of a distinct previous plan is not necessary to be proved. The common intention to bring about a particular result may well develop on the spot as between a number of persons, with reference to the facts of the case and circumstances of the situation. Though common intention may develop on the spot, it must, however, be anterior in point of time to the commission of the crime showing a prearranged plan and prior concert. To attract Section 34 of the IPC, no overt act is needed on the part of the accused if they share common intention with others in respect of the ultimate criminal act, which may be done by any one of the accused sharing such intention (This view was re-iterated by full bench of Hon'ble Supreme Court in Gulab V. State of UP reported as (2022) 12 SCC 677).
18. Further, the plan need not be elaborate, nor is a long interval of time required. It could arise and be formed suddenly, as for example when one man calls on bystanders to help him kill a given individual and they, either by their words or their acts, indicate their assent to him and join him in the assault. The common intention may develop in course of the fight but there must be clear and unimpeachable evidence to justify that inference.
FIR No. 170/2023 State Vs. Mohd. Danish @ Aasif Page No. 10/2519. Therefore, the fundamental principles underlying Section 34 is that:
a) Section 34 does not create a distinct offence, but is a principle of constructive liability;
b) In order to incur a joint liability for an offence there must be a pre-arranged and pre-mediated concert between the accused persons for doing the act actually done;
c) There may not be a long interval between the act and the pre-meditation and the plan may be formed suddenly. In order for Section 34 to apply, it is not necessary that the prosecution must prove an act was done by a particular person; and;
d) The provision is intended to cover cases where a number of persons act together and on the facts of the case, it is not possible for the prosecution to prove who actually committed the crime.
20. Section 319 IPC: Hurt - Whoever causes bodily pain, disease or infirmity to any person is said to cause hurt. This offence is punishable under section 323 of the IPC.
21. Section 326 IPC: Voluntarily causing grievous hurt by dangerous weapons or means - Whoever, except in the case provided for by section 335, voluntarily causes grievous hurt by means of any instrument for shooting, stabbing or cutting, or any instrument which, used as a weapon of offence, is likely to cause death, or by means of fire or any heated substance, or by means of any poison or any corrosive substance, or by means of any explosive substance, or by means of any substance which it is deleterious to the human body to inhale, to swallow, or to receive into the blood, or by means of any animal....(relevant extract). The offence grievous hurt is defined under section 320 of the IPC.
22. In a criminal trial, the burden of proving everything essential to the establishment of the charge against an accused always rests on the prosecution and there is a presumption of FIR No. 170/2023 State Vs. Mohd. Danish @ Aasif Page No. 11/25 innocence in favour of the accused until the contrary is proved. Criminality is not to be presumed, subject of course to some statutory exceptions. It was observed in Partap v. State of U.P. reported as A.I.R. 1976 SC 966 that while prosecution is required to prove its case beyond a reasonable doubt, accused can discharge his onus by establishing a mere preponderance of probability. In Vijayee Singh v. State of U.P. reported as 1990(3) SCC 190, it was again held that in criminal cases burden is always is on prosecution and never shifts. In Nasir Sikander Shaikh v. State of Maharashtra reported as (SC) 2005 Cri.L.J. 2621 and Jarnail Singh v. State of Punjab reported as (SC) 1996(1) R.C.R.(Criminal) 465 it was held that it is cardinal principle of criminal jurisprudence that an accused is presumed to be innocent and burden lies on prosecution to prove the guilt of accused beyond reasonable doubt. Prosecution is under legal obligation to prove each and every ingredient of the offence beyond any doubt, unless otherwise so provided by the Statute. Accused is not expected to prove his innocence to the hilt. If prosecution story is doubtful, benefit of doubt must go to the accused.
23. To accomplish the aforesaid purpose, prosecution has examined PW1/ Zikaya Siddiqui as material witness and IO of this case.
24. Before, appreciating the evidence and deciding the question whether the charge(s) have been proved against the accused, it would be apt to take note that for an offence under section 326/323/34 of the Indian Penal Code (IPC), prosecution is required to prove following ingredients:
a) Both the accused have acted in furtherance of their common intension;FIR No. 170/2023 State Vs. Mohd. Danish @ Aasif Page No. 12/25
b) Accused persons have caused hurt to the victim; and
c) Accused persons have caused grievous hurt to the victim by means of any instrument of stabbing or cutting, or any instrument which, used as a weapon of offence, is likely to cause death.
25. During evidence in court PW1/complainant has narrated the incident categorically. He deposed that he was coming from the house of his senior Ms. Snigdha Puri, who is a resident of Greater Kailash, on the day of the incident, in car. The day of incident was being celebrated as Eid festival. When he went through Batla House Chowk, these two persons namely Rajuddin & Danish @ Hau had stopped his car by striking the bonnet of his car. He further deposed that they broke the front windshield of his car. He has opened the driver side window to ask them what the issue is about. Accused Danish opened the gate suddenly and both have attacked him with the sharp weapon on the left side lower chin, i.e. very close to neck and right hand. After the incident he has called to his friend Atif who has taken him to hospital. He has identified both the accused in court. Complainant has proved his complaint Ex. PW1/A. The injury and the incident testified by PW1 further supported by MLC (Ex. A2). Incident and injuries are written in the MLC. It is also mentioned that Atif Hasan has brought the complainant to the hospital. Injuries described in MLC and narrated by the complainant are in coherence and sufficient to pass the test of "likely to cause death as mention in section 326 of the IPC"
since both the accused has left him in bleeding. During cross examination he deposed that he is identifying the accused persons because he has seen them. His friend has shown the photographs of the accused persons but that is not the only reason of identification.FIR No. 170/2023 State Vs. Mohd. Danish @ Aasif Page No. 13/25
26. The law on the value of testimony of injured witness is fairly settled. In Abdul Sayeed V. State of M.P. reported as (2010) 10 SCC 259, Hon'ble supreme court discussed the evidentiary value of an injured witness and summarised to the effect that:
"The testimony of the injured witness is accorded a special status in law. This is as a consequence of the fact that the injury to the witness is an in-built guarantee of his presence at the scene of the crime and because the witness will not want to let his actual assailant go unpunished merely to falsely implicate a third party for the commission of the offence. Thus, the deposition of the injured witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies therein.'' The same view was followed by Hon'ble Delhi High Court in Vipin Sharma v. State reported as 2018 SCC OnLine 12814 and other numerous judgments.
27. Keeping in view the above legal position, this court is of the view that there is no major contradiction and discrepancy in the testimony of the PW1/complainant. He has narrated the incident and also identified the accused in court. There is also no reason with the complainant to falsely implicate the accused persons. No contradictions have emerged during the cross examination of PW1 and he has given sufficient reasons by which he is identifying both the accused persons.
FIR No. 170/2023 State Vs. Mohd. Danish @ Aasif Page No. 14/2528. Ld. LAC for the accused has argued that test identification parade was not conducted in this case and therefore, the identification of the accused persons in the court cannot be relied upon. Per contra, Ld. APP has argued that the present offence has been committed in broad daylight and victim has sufficient time to see the accused persons.
29. In order to appreciate the rival contentions of the parties, this court shall have to discuss the settled position of law on TIP and the evidentiary value of the identification of the accused in court without TIP.
30. In Munshi Singh Gautam V. State of MP reported as (2005) 9 SCC 631, Hon'ble Supreme Court observed:
"Identification tests do not constitute substantive evidence. They are primarily meant for the purpose of helping the investigating agency with an assurance that their progress with the investigation into the offence is proceeding on the right lines. The identification can only be used as corroborative of the statement in court. The necessity for holding an identification parade can arise only when the accused are not previously known to the witnesses. The whole idea of a test identification parade is that witnesses who claim to have seen the culprits at the time of occurrence are to identify them from the midst of other persons without any aid or any other source. The test is done to check upon their veracity. In other words, the main object of holding an identification parade, during the FIR No. 170/2023 State Vs. Mohd. Danish @ Aasif Page No. 15/25 investigation stage, is to test the memory of the witnesses based upon first impression and also to enable the prosecution to decide whether all or any of them could be cited as eyewitnesses of the crime. It is desirable that a test identification parade should be conducted as soon as after the arrest of the accused. This becomes necessary to eliminate the possibility of the accused being shown to the witnesses prior to the test identification parade. This is a very common plea of the accused and, therefore, the prosecution has to be cautious to ensure that there is no scope for making such allegation. If, however, circumstances are beyond control and there is some delay, it cannot be said to be fatal to the prosecution. It is trite to say that the substantive evidence is the evidence of identification in Court. Apart from the clear provisions of Section 9 of the Evidence Act, the position in law is well settled by a catena of decisions of this Court. The facts, which establish the identity of the accused persons, are relevant under Section 9 of the Evidence Act. As a general rule, the substantive evidence of a witness is the statement made in Court. The evidence of mere identification of the accused person at the trial for the first time is from its very nature inherently of a weak character. The purpose of a prior test identification, FIR No. 170/2023 State Vs. Mohd. Danish @ Aasif Page No. 16/25 therefore, is to test and strengthen the trustworthiness of that evidence. It is accordingly considered a safe rule of prudence to generally look for corroboration of the sworn testimony of witnesses in Court as to the identity of the accused who are strangers to them, in the form of earlier identification proceedings. This rule of prudence, however, is subject to exceptions, when, for example, the Court is impressed by a particular witness on whose testimony it can safely rely, without such or other corroboration. The identification parades belong to the stage of investigation, and there is no provision in the code which obliges the investigating agency to hold or confers a right upon the accused to claim, a test identification parade. They do not constitute substantive evidence and these parades are essentially governed by Section 162 of the Code. Failure to hold a test identification parade would not make inadmissible the evidence of identification in Court. The weight to be attached to such identification should be a matter for the Courts of fact. In appropriate cases it may accept the evidence of identification even without insisting on corroboration.
31. In State of UP V. Boota Singh reported as (1979) 1 SCC 331, Hon'ble Supreme Court observed that, FIR No. 170/2023 State Vs. Mohd. Danish @ Aasif Page No. 17/25 "the evidence of identification becomes stronger if the witness has an opportunity of seeing the accuse not for a few minutes but for some length of time, in broad day light, when he would be able to note the features of the accused more carefully than on seeing the accused in a dark night for a few minutes."
32. In present case, the offence has taken place on 22.04.2023 at about 03:30 PM-04:00 PM. It was a broad day light and PW1/complainant had an occasion to see both the accused persons properly. Complainant and accused persons have also talked at the place of incident for some time. Complainant has asked the reasons from the accused persons for damaging his car. Further, the incident has taken place on 22.04.2023 and complainant was examined in court on 30.10.2023 which shows not much time has lapsed and not only the occasion but also, he has fair opportunity to identify the accused persons. The complainant was seriously injured and he could have easily seen the faces of the persons assaulting him and their identity would well within imprinted in his mind especially when he was assaulted in broad daylight. He could not be said to be interested in roping in innocent persons by shielding the real accused who had assaulted him. In these circumstances, this court is of the view that identification in court without TIP is reliable and it does not require any corroboration. It is an appropriate case where court may accept the evidence of identification even without insisting on corroboration.
33. Ld. LAC for the accused further submitted that case of the prosecution cannot be said to have been proved since weapon is FIR No. 170/2023 State Vs. Mohd. Danish @ Aasif Page No. 18/25 not recovered in this case and not produced before the court. Ld. APP for the state objected this submission by stating that recovery of weapon has bearing on case when witnesses have proved the case and narrated the story of prosecution properly.
34. In Manga @ Man Singh V. State of Uttarakhand reported as (2013) 7 SCC 629, Hon'ble Supreme Court observed that "When there was enough evidence to support the version of the prosecution that the appellants, some of whom were in possession of licenced arms and others were holding unlicenced pistols and the shooting with those arms was sufficiently established by the version of the injured eye-witnesses, we fail to understand as to how non-
detection of pellets or bullets will be of any consequence as a vitiating factor to defeat the case of the prosecution".
Further, recently in Rakesh and anr. V. State of UP reported as (2021) 7 SCC 188, Hon'ble Supreme Court observed that, "At the most, it can be said that the gun recovered by the police from the accused may not have been used for killing and therefore the recovery of the actual weapon used for killing can be ignored and it is to be treated as if there is no recovery at all. For convicting an accused recovery of the weapon used in commission of offence is not a sine qua non".
FIR No. 170/2023 State Vs. Mohd. Danish @ Aasif Page No. 19/2535. In the light of above discussion, recovery of weapon is not fatal for the prosecution in present case when complainant has proved the case sufficiently and also identified the accused. Injury sustained and narrated by him is also mentioned in MLC Ex. A2. It is written in MLC that that complainant was assaulted by two persons with a sharp object. Injuries written in MLC is also substantiating the nature of weapon used in the present case. Therefore, non-recovery of weapon is not fatal for the case of the prosecution.
36. Further, Ld. LAC has submitted that since TIP is not conducted and weapon by which injury was caused to the victim not recovered, the investigation is faulty and therefore the case of the prosecution is false. Ld. APP has submitted that faulty investigation cannot be a situation to disbelieve case of the prosecution when victim has sufficiently proved the case and that faulty investigation is not affecting the merits of the case.
37. In Kasinath Mondal V. State of W.B. reported as (2012) 7 SCC 699, Hon'ble Supreme Court observed that, "It is said by this court in a number of cases that irregularities or deficiencies in conducting investigation by prosecution is not always fatal to the prosecution case. If there is sufficient evidence to establish the substratum of the prosecution case, then irregularities which occur due to remissness of the Investigating Agency, which do not affect the substratum of the prosecution case, should not weigh with the court". Same view was reiterated by the Hon'ble Supreme Court FIR No. 170/2023 State Vs. Mohd. Danish @ Aasif Page No. 20/25 in N V Subbarao V. State reported as (2013) 2 SCC 162.
38. Complainant cannot suffer due to lapses of investigation as that would tantamount to giving a charter of lawlessness to a criminal who may have won over the police officials and investigation may have been deliberately made a fractured one. It is also pertinent to mention, that lapses of investigation may be bona fide as well due to both law and order duty and investigation duties being imposed on police officials. It is natural for a person to succumb to pressure and falter; however, lapses be it mala fide or bona fide cannot be allowed to make the victim a sufferer especially so when he has proved the incident and identified the culprits. In present case there is no discrepancy and contradiction in the testimony of the complainant. There is sufficient evidence to establish the substratum of the prosecution case. Therefore, the contention that case of the prosecution is false due to faulty investigation cannot be accepted.
39. In State of HP V. Lekhi Raj reported as (2000) 1 SCC 247, hon'ble supreme court observed that "A criminal trial is not like a fairy tale wherein one is free to give fight to one's imagination and phantasy. It concerns itself with the question as to whether the accused arraigned at the trial is guilty of the crime with which he is charged. Crime is an event in real life and is the product of interplay of different human emotions. In arriving at the conclusion about the guilt of the accused charged with the commission of a crime, the court has to judge the evidence by the FIR No. 170/2023 State Vs. Mohd. Danish @ Aasif Page No. 21/25 yardstick of probabilities, its intrinsic worth and the animus of witnesses. Every case in the final analysis would have to depend upon its own facts. Although the benefit of every reasonable doubt should be given to the accused, the courts should not at the same time reject evidence which is ex facie trustworthy on grounds which are fanciful or in the nature of conjectures. The criminal trial cannot be equated with a mock scene from a stunt film. The legal trial is conducted to ascertain the guilt of innocence of the accused arraigned. In arriving at a conclusion about the truth, the Courts are required to adopt rational approach and judge the evidence by its intrinsic worth and the animus of the witnesses. The hyper technicalities or figment of imagination should not be allowed to divest the court of its responsibility of sifting and weighing the evidence to arrive at the conclusion regarding the existence or otherwise of a particular circumstance keeping in view the peculiar facts of each case, the social position of the victim and the accused, the larger interests of the society particularly the law-and-order problem and degrading values of life inherent in the prevalent system. The realities of life have to be kept in mind while appreciating the evidence for arriving at the truth. The courts are not FIR No. 170/2023 State Vs. Mohd. Danish @ Aasif Page No. 22/25 obliged to make efforts either to give latitude to the prosecution or loosely construe the law in favour of the accused. The traditional dogmatic hypertechnical approach has to be replaced by rational, and genuine approach for administering justice in a criminal trial. Criminal Jurisprudence cannot be considered to be a Utopian though but have to be considered as part and parcel of the human civilisation and the realities of life. The courts cannot ignore the erosion in values of life which are a common feature of the present system. Such erosions cannot be given a bonus in favour of those who are guilty of polluting society and the mankind".
40. Further, in Sardul Singh v. State of Haryana reported as AIR 2002 SC 3462, Hon'ble Supreme Court observed that, "There cannot be a prosecution case with a cast iron perfection in all respects and it is obligatory for the courts to analyse, shift and assess the evidence on record, with particular reference to its trustworthiness and truthfulness, by a process of dispassionate judicial scrutiny adopting an objective and reasonable appreciation of the same, without being obsessed by an air of total suspicion of the case of the prosecution. What is to be insisted upon is not implicit proof. It has often been said that evidence of interested witnesses should be scrutinized FIR No. 170/2023 State Vs. Mohd. Danish @ Aasif Page No. 23/25 more carefully to find out whether it has a ring of truth and if found acceptable and seem to inspire confidence, too, in the mind of the court, the same cannot be discarded totally merely on account of certain variations or infirmities pointed or even additions and embellishments noticed, unless they are of such nature as to undermine the substratum of the evidence and found to be tainted to the core. Courts have a duty to undertake a complete and comprehensive appreciation of all vital features of the case and the entire evidence with reference to the broad and reasonable probabilities of the case also in their attempt to find out proof beyond reasonable doubt".
41. In view of the above discussion, prosecution has proved this case beyond reasonable doubt to the extent that both the accused persons have assaulted the complainant and caused grievous hurt which was likely to cause death. No separate incident of simple hurt is proved in this case. Prosecution is not required to prove the individual liability of both accused keeping in view of the principles discussed above, pertaining to Section 34 IPC.
42. Before parting with this judgement and concluding it, this court shall not forget to appreciate the efforts of DCP, South- East. He has monitored the investigation of this case meticulously and brought the real offenders in court. Efforts of the DCP ensured fair trial and assisted this court in imparting justice.
FIR No. 170/2023 State Vs. Mohd. Danish @ Aasif Page No. 24/25Decision:
43. Accordingly, accused Danish @ Jafar @ Hau S/o Md. Arif and Rajuddin S/o Md. Majid Ali held guilty and convicted for the offence under section 326/34 of the IPC and accused Danish @ Jafar @ Hau S/o Md. Arif and Rajuddin S/o Md. Majid Ali held not guilty and acquitted for the offence punishable under Section 323/34 of the IPC.
Announced in open (Abhitesh Kumar)
Court today i.e on 21.11.2023 MM-08, (SE) Saket Courts
New Delhi
This Judgment contains twenty five pages (25) and all pages bears my signature.
(Abhitesh Kumar) MM-08 (SE): Saket Courts New Delhi: 21.11.2023 FIR No. 170/2023 State Vs. Mohd. Danish @ Aasif Page No. 25/25