Smt C Ratnapadmavathi

IN THE COURT OF THE VIII ADDL CHIEF METROPOLITAN MAGISTRATE

HYDERABAD

Present: Smt. Ch.Ratnapadmavathi, VIII Addl. Chief Metropolitan Magistrate, Hyderabad.

FRIDAY THIS THE 31 st DAY OF AUGUST, 2018

CALENDER CASE No. 486/2016

Between:

The State represented by the Sub-Inspector of Police, PS Dabeerpura, Hyderabad.… Complainant

And

Shaik Chand Pasha S/o. Late Shaik Fakruddin, Age 33 years, R/o. H.No.16-5-389/22, Farathnagar, Dabeerpura, Hyderabad. … Accused

This case is coming before me for final hearing in the presence of the A.P.P for the state and Sri.T.Naredner and his associates, advocate for the accused; upon perusing the material papers on record; upon hearing both sides and having stood over for consideration till this day, this Court delivered the following:

J U D G M E N T

1. This case emerges out of the charge sheet that was filed by the SI of police,

Dabeerpura P.S., Hyderabad in Cr.No. 103/2016 for the offence u/sec. 332 IPC.

2.The case of the prosecution in brief is as follows:

On 13-7-2016 at about 22:45 hours Sri.B.Sai Kumar (LW1) has lodged a complaint stating that on 13-7-2016 at about 21:15 hours while LW1 and Sri.Syed Sajid

Hussain (LW2) are performing patrolling duty in the limits of Dabeerpura police station, as per the instrctions of Sri.Moghal Anwar Pasha (LW3), LW1 and LW2 proceeded to the house of Smt.Najma Fatima (LW4) for enquiring the accused on the complaint of LW4. While LW1 was causing enquiry with the accused, meantime the 2 accused came to them and abused LW1 and LW2 as how dare they came to his house on complaint of his wife and pushed LW1 and beat on his neck, right hand and kicked on his stomach, meantime LW2 rescued LW1 from the hands of the accused. Basing on the above complaint Sri.S.Koteshwar Rao (LW9) has registered a case in crime no.103/2016 for the offence u/sec. 332 IPC. Then LW9 has examined and recorded the statement of LW1, sent the injured to Durreshwar

Hospital, Puranihaveli, Hyderabad for treatment. Later he proceeded to the place of offence by securing two mediators ie LW5 and LW6 and conducted scene observation panchanama in their presence. Then LW9 recorded the detailed statement of LW2 to LW4. On 14-7-2016, Lw9 with the assistance of LW7 apprehended the accused and brought him to police station and interrogated him thoroughly, for which the accused voluntarily admitted his guilt. Then Lw9 effected the arrest of the accused and produced him before the court for judicial custody and later after receiving the medical certificate of LW1 and after completion of investigation LW9 has filed charge sheet against the accused.

3.This case is taken on file for the offence u/sec. 332 IPC against the accused.

On appearance of accused, copies of relevant documents were furnished to the accused as contemplated under section 207 Cr.P.C.

4.Accused is examined under section 239 Cr.P.C., charge is framed for the offence under section 332 IPC and the same is read over and explained to the accused in vernacular language, for which he pleaded not guilty and claimed to be tried.

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5.During the course of trial, on behalf of the prosecution, PW1 to PW7 are examined and Ex.P1 to P4 are marked.

6.After closure of the prosecution side evidence, accused is examined u/sec.

313 Cr.P.C. for the incriminating material available against him in the evidence of prosecution witnesses, for which he denied his culpability and reported no defence evidence.

7.Heard the arguments of the learned Assistant Public Prosecutor and the defence counsel.

8.Now the point that arises for consideration is:

Whether the prosecution has proved the guilt of the accused

beyond all reasonable doubt for the offence under section 332

IPC?

9. P O I N T : The prosecution case is that the accused has abused LW1 and

LW2 and voluntarily caused hurt to LW1 who is a police constable (public

Servant) to prevent him from discharging his duty as a public servant and thereby committed an offence punishable u/sec.332 IPC. Therefore, it is for the prosecution to prove its case beyond all reasonable doubt so as to bring home the guilt of the accused.

10.As per the case of the prosecution, LW1 is the defacto complainant/injured,

LW2 is the eye witness, LW3 and LW4 are the circumstantial witnesses, LW5 and 4

LW6 are the panch witnesses for scene observation panchanama, LW7 is the doctor who treated LW1 and issued medical certificate, LW8 is the police constable who assisted the investigating officer in apprehension of the accused and LW9 is the investigating officer. Among them the prosecution has examined

LW1, LW2, LW4, LW6, LW7, LW3 and LW9 as PW1 to PW7 and Ex.P1 to Ex.P4 are marked on behalf of the prosecution. The evidence of LW5 and LW8 is given up by the prosecution in view of evidence of PWs 4 and PW7. The defence of the accused is total denial of the prosecution case.

11.Now the evidence on record is to be scrutinized carefully to find out whether the prosecution succeeded in bringing out the complicity of accused or not.

12.In the case on hand LW1, LW2 and LW7 are the crucial witnesses and their evidence is highly material in bringing home the guilt of the accused person. PW1 who is the defacto complainant/injured categorically deposed that on 13-7-2016 when he along with LW2 is doing night duty, they received information from LW3 through phone that the accused is beating LW4 in drunken condition. Then he along with LW2 went to the house of the accused and enquired LW4 about the incident. Meanwhile the accused came to him and started abusing by stating how dare enough he is to take him to police station on the complaint given by his wife and pushed him on the bricks and also beat him on the neck and right hand and also beat him in the stomach. Then LW2 came to his rescue and accused also abused LW2 and escaped from the scene of offence. There upon they returned 5 back to police station and lodged Ex.P1 complaint. As such PW1 deposed in support of the contents in Ex.P1 complaint lodged by him and his testimony corroborated with the contents in Ex.P1 complaint.

13.During the course of cross examination the fact that PW1 and LW2 went to the house of the accused on the date of the offence to enquire about the fact of beating of LW4 by the accused is not denied or disputed and so also the injuries on the body of LW1 are not even denied or disputed. But it was suggested to PW1 that PW1 and LW2 has beat the accused at the scene of offence in the presence of his wife and mother of the accused, though they requested him to leave the accused and out of fear that wife and mother of the accused will lodge a complaint against them, the present false complaint was filed against the accused. But the same was denied by PW1. However during the course of cross examination of

PW1, the defence counsel suggested to PW1 that the accused has pushed PW1 and

LW2 as they beat him and the same is denied by PW1. Though it was suggested to PW1 that PW1 and LW2 has beat the accused in the presence of his wife and mother, but during the course of cross examination of PW2, the learned defence counsel himself suggested to PW2 that at that time only the accused and his mother was present in the house and that itself negatives the plea of the accused that both PW1 and LW2 beat the accused in the presence of his wife and mother of the accused and further negatives the plea of the defence that anticipating that the wife of the accused and mother of the accused will file a complaint against PW1 and LW2, they have lodged a false complaint against the accused. Moreover, no 6 complaint was lodged against PW1 and LW2 either by the accused or by his wife or by the mother of the accused alleging that the accused was beaten by PW1 and

LW2. Moreover no injuries were found on the body of the accused at the time of remanding him to judicial custody. Therefore, the defence of the accused is quite baseless. From out of the cross examination of PW1 it is crystal clear that the accused has clearly admitted that he has pushed PW1 and LW2 on that day which lends support to the prosecution case.

14.Though it was suggested to PW2 that when PW1 tried to caught hold of accused, he has slipped and fallen on the ground and sustained injuries, but the said suggestion was not put to PW1 who is a crucial witness and injured in this case, without which the suggestion put to PW2 is of no help to the defence. Thus the injuries on the body of PW1 and the fact that he was pushed away by the accused were clearly admitted which is evident from the cross examination of

PW1 itself for the reasons stated above.

15.The testimony of PW2 who is the Home Guard, who accompanied with

PW1 to the house of the accused on 13-7-2016 corroborates with the testimony of

PW1 on all material aspects and his testimony also reveals that the accused pushed

PW1 on the bricks and beat him on his neck, right hand and also in the stomach region and he went to his rescue and the accused has also abused him. At this juncture, the learned defence counsel argued that as PW2 deposed that by the time they went to the house of accused, they noticed the accused and his wife in the house of the accused which contradicts with the testimony of PW3 who is the wife 7 of the accused. As such his evidence cannot be relied upon in toto. But I am unable to accept the contention of the learned defence counsel “as minor

contradictions are bound to occur due to passage of time and it will not

obliterate an otherwise acceptable evidence.” In the case on hand the accused has not denied or disputed the fact that PW1 and LW2 went to the house of the accused during the night time to question him upon the instructions of LW3 as to why he has beat his wife in drunken state. Further the testimony of PW3 who is the wife of the accused clearly reveals that the police went to her house upon her request as her children are alone in the house. Further PW6 who is the Head

Constable clearly deposed that he send PW1 and PW2 to the house of PW3 when

PW3 orally complained that her husband is beating her. The said testimony of

PW3 and PW6 clearly probablizes that PW1 and PW2 are sent by PW6 to the house of the accused in view of the oral complaint of PW3 to the effect that her husband is beating her. Further the fact that PW1 and PW2 are pushed by the accused is even admitted by the accused which is evident from the cross examination of PW1 itself. In this regard, the testimony of PW4 who is one of the panch witness to the scene of offence panchanama clearly reveals that the scene of offence was observed and noticed that bricks at the scene of offence were in pellmell condition which probablizes the fact that the accused has pushed PW1 on the bricks and lends support to the prosecution case. As the alleged incident happened during night time ie at odd hours, the presence of independent witnesses cannot be insisted upon and cannot be expected and merely on the ground that no 8 independent witnesses were examined, the entire testimony of PW1 and PW2 cannot be brushed aside, as their testimony is cogent, consistent and corroborating with one another and remained un-shattered during the course of cross examination.

16.The defence of the accused is that PW1 and PW2 beat him on that day and anticipating that his wife and mother will file complaint, this false complaint was filed against him. As already discussed above and for the reasons stated above, there are no injuries on the body of the accused and no complaint was filed by the accused or his wife and mother against PW1 and PW2 or no steps were taken by the accused to lodge any private complaint, so as to substantiate his defence. Thus there is no reason to dis-believe the testimony of PW1 and PW2 and to discard their testimony. Thus the testimony of PW1 and PW2 and the admissions of the accused in the form of suggestions put by the defence counsel probablizes the version of the prosecution. Further the doctor who treated PW1 is examined as

PW5 and he clearly deposed that he treated the injured Sai Kumar as out-patient and found abrasion over neck and both shoulders and issued Ex.P2 medical certificate. As such the said medical evidence on record lends support to the evidence of PW1 and PW2 and proves that the accused voluntarily caused hurt to

PW1 who is a public servant while discharging his duties as public servant and prevented him from discharging his duties as public servant and the testimony of the investigating officer ie PW7 further lends support to the prosecution case.

Thus the complicity of the accused is made out for the offence u/sec. 332 IPC and 9 he is liable for punishment in accordance with law.

Dictated to Stenographer Gr-II, transcribed and typed by her, corrected and

pronounced by me, in the open Court on this the 31st day of August, 2018.

VIII ADDL CHIEF METROPOLITAN MAGISTRATE

HYDERABAD

17.When questioned about the quantum of sentence the accused stated “ That he is having wife and small children and he has took look after them and prayed for mercy of the court.”

18.Having regard to facts and circumstances, it is not a fit case to invoke sec.

360 Cr.P.C. or sec.3 and 4 of Probation of offenders Act. However considering the nature of offence and the prayer of accused, I am inclined to take lenient view in imposing the sentence.

19.In the result accused is found guilty for the offence u/sec. 332 IPC and he is hereby convicted in terms of section 248(2) Cr.P.C. and sentenced to pay fine of

Rs.3,000/- (Rupees three thousand only) and in default of payment of fine amount shall undergo simple imprisonment for a period of 3 months (three months).

Dictated to Stenographer Gr-II, transcribed and typed by her, corrected and

pronounced by me, in the open Court on this the 31st day of August, 2018.

VIII ADDL CHIEF METROPOLITAN MAGISTRATE

HYDERABAD

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::APPENDIX OF EVIDENCE::

WITNESSES EXAMINED

FOR PROSECUTION: FOR DEFENCE: PW1 : B.Sai Kumar, Complainant. -Nil- PW2 : Syed Sajid Hussain, Eye witness. PW3 : Najma Fatima, circumstantial witness. PW4 : Mohd Mazer, panch witness for scene Observation panchanama PW5 : Dr.Riaz, treated the injured. PW6 : Moghal Anwar Pasha, circumstantial Witness. PW7 : S.Koteshwar Rao, investigating officer.

EXHIBITS MARKED

FOR PROSECUTION: FOR DEFENCE: Ex.P1 – Complaint of PW1. -Nil- Ex.P2 – scene of offence panchanama. Ex.P3 – Medical certificate. Ex.P4 – FIR.

M.Os MARKED

-Nil-

VIII ADDL CHIEF METROPOLITAN MAGISTRATE

HYDERABAD

IN THE COURT OF THE VIII ADDL CHIEF METROPOLITAN MAGISTRATE

HYDERABAD

Present: Smt. Ch.Ratnapadmavathi, VIII Addl. Chief Metropolitan Magistrate, Hyderabad.

FRIDAY THIS THE 14 th DAY OF DECEMBER, 2018

CALENDER CASE No. 707/2016

Between:

The State represented by the Sub-Inspector of Police, PS. Dabeerpura, Hyderabad.… Complainant

And

Syed Taqi Raza Abedi S/o. Syed Ali Sharfuddin, Age 45 years, R/o. H.No.22-3-71, Darabgunj lane, Yakuthpura, Hyderabad. … Accused

This case is coming before me for final hearing in the presence of the A.P.P for the state and Sri. Mohammed Zafarullah, Advocate for the accused; upon perusing the material papers on record; upon hearing both sides and having stood over for consideration till this day, this Court delivered the following:

J U D G M E N T

1. This case emerges out of the charge sheet that was filed by the SI of police,

Dabeerpura P.S., Hyderabad in Cr.No.157/2016 for the offence u/sec. 2(h)(i) of

Prevention of Insult to National Honour Act, 1971.,

2.The case of the prosecution in brief is as follows:

On 25-10-2016 at about 20:00 hours Sri.Murtuza Ali (LW1) has lodged a complaint before the police stating that accused conducted a meeting on 29-6-2016 at office at Majlis-e-Ulama-e Hind at Noor Khan Bazar, Hyderabad, wherein our Indian 2

National flag was used as table cloth, and the poster of the person sitting on the dias shows there shoes were touching the National flag and also used our National flag as a facilitator to keep the photos of the foreign dignitaries. Our National flag was kept in a disrespectful manner whereas the Palestine Flag is hoisting high.

Basing on the above complaint Sri.S.Koteshwar Rao (LW7) registered a case in crime no. 157/2016 for the offence u/sec. 2(h)(i) Prevention of insult to National

Honour Act 1971., and issued FIR. Later LW7 examined and recorded the

statement of LW1, collected the photo copy of the meeting conducted at office at

Majlis-e-Ulama-e Hind at Noor Khan Bazar, Hyderabad. Later he proceeded to the scene of offence, conducted scene of offence panchanama and drafted rough sketch of scene of offence. LW7 recorded the statements of LW2 to LW4, collected the photos of meeting from face book of accused and issued notice to the accused u/sec. 41(A) Cr.P.C. and after completion of investigation filed charge sheet against the accused.

3.This case is taken on file for the offence u/sec. 2(h)(i) Prevention of insult to

National Honour Act., 1971., against the accused. On appearance of the accused, copies of relevant documents are furnished to him as contemplated under section 207 Cr.P.C.

4.Accused is examined under section 239 Cr.P.C., charge is framed for the offence under section 2(h)(i) Prevention of insult to National Honour Act., 1971., and the same is read over and explained to the accused in vernacular language, for which he pleaded not guilty and claimed to be tried.

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5.During the course of trial, on behalf of the prosecution, PW1 to PW6 are examined and Ex.P1 to P5 are marked on behalf of the prosecution and Ex.D1 to

Ex.D19 are marked on behalf of the defence.

6.After closure of the prosecution side evidence, accused is examined u/sec.

313 Cr.P.C. for the incriminating material available against him in the evidence of prosecution witnesses, for which he denied his culpability and reported no defence evidence.

7.Heard the arguments of the learned Assistant Public Prosecutor and the defence counsel, who filed written arguments.

8.Now the point that arises for consideration is:

Whether the prosecution has proved the guilt of the accused

beyond all reasonable doubt for the offence under section 2(h)(i)

Prevention of insult to National Honour Act., 1971.,?

9. P O I N T : The case of the prosecution is that the accused used the

National flag as table cloth in a manner that the shoes of the dignitaries sitting on the dias is touching the National flag and also used National flag as a facilitator to keep the photos of the foreign dignitaries and the National flag was kept in a disrespectful manner whereas the palestine flag is hoisting high and thereby committed the offence punishable u/sec.2(h)(i) Prevention of insult to National

Honour Act., 1971., Therefore, it is for the prosecution to prove its case beyond

all reasonable doubt so as to bring home the guilt of the accused person.

10.As per the case of the prosecution, LW1 is the defacto complainant, LW2 to

LW4 are the witnesses, LW5 and LW6 are the panch witnesses for scene 4 observation panchanama and LW7 is the investigating officer. Among them the prosecution has examined LW1 to LW4, LW6 and LW7 as PW1 to PW6 and Ex.P1 to Ex.P5 are marked on behalf of the prosecution and whereas on behalf of the defence Ex.D1 to Ex.D19 are marked. The evidence of LW5 is closed as the concerned police filed report stating that he went abroad for employment purpose.

The defence of the accused is total denial of the prosecution case.

11.Now the evidence on record is to be scrutinized carefully to find out whether the prosecution is able to establish the guilt of the accused persons or not.

12. Among the prosecution witnesses so examined, PWs1 to PW4 are the crucial witnesses in this case and their evidence is highly material in bringing home the guilt of the accused persons.

PW1 who is the defacto complainant in this case categorically deposed that the accused insulted the National flag by placing the National flag on the table on the dias in a manner that is near by the foot of the dignitary on the dias and whereas the accused placed the Palestine flag on the back side of the dias and over and above the National flag and thereby insulted the National flag and he watched the same on the face book of the accused and the said meeting was organized on 29-6-2016 by Tanzeem-e-Jafferi and is supervised by the accused and the accused has presided the said meeting and in that connection he lodged Ex.P1 complaint.

Ex.P2 is the print out of the face book (7 pages) along with CD and Ex.P3 is the certificate u/sec. 65(B) of Indian Evidence Act.,. Thus the testimony of PW1 is in support of the contents in Ex.P1 complaint and clearly reveals that the National 5 flag was insulted by the accused by placing the same in disrespectful manner on the dias as table cloth touching the feet of the dignitaries and Palastine flag is hoisted high above our National flag and as per his testimony he watched the same in the face book of the accused. To that effect, the print out of the face book (7 pages) is also marked as Ex.P2 along with its CD without any objection.

13.On perusal of Ex.P2, it clearly reflects what has been deposed by PW1 and clearly goes to show that our National flag was placed on the dias as a table cloth to keep some photos and it is nearby the feet of the dignitaries on the dias and the

Palastine flag is placed over and above our National flag on the back side of the dias and probablizes the version of PW1.

14.In this regard even PW2 deposed on the same lines as that of PW1 that he also watched the same on the face book of the accused and when Ex.P2 is confronted to PW2, he admitted that he watched the same in the face book of the accused. While cross examining PW1 and PW2 nothing material could be elicited so as to discredit their testimony. Though it was suggested to PW1 that he lodged a false complaint against the accused and deposing falsely due to disputes in Shia

Community but the same was denied by PW1.

15.To further substantiate the prosecution case the prosecution even examined the eye witnesses who personally attended the press conference on 29-6-2016 as

PW3 and PW4. PW3 clearly deposed that on 29-6-2016 he attended the press conference of Tanzeem-e-Jafferi where he saw that National flag was used as a table cloth touching the ground. The accused insulted the National flag as the 6 accused has placed the National flag on the table on the dias in a manner that is near by the foot of the dignitary on the dias. On the Indian flag the photographs of the leaders of Iran were placed and the accused placed the Palestine flag on the back side of the dias and over and above the National flag and thereby insulted the same. PW3 further deposed that on 30-6-2016 he even watched the same in the face book of the accused. He also deposed that on 29-6-2016 the meeting was arranged by Tanzeem-e-Jafferi and supervised by the accused and the accused presided over the said meeting.

16.PW4 deposed on the same lines as that of PW3 and their evidence corroborated on all material aspects and lends support to the testimony of PW1 and PW2. During the course of cross examination, it was elicited through PW3 that the accused belongs to Shia Community of Usooli subsect and tried to elicit through PW3 that PW1, PW2 and LW4 belongs to Akbari subsect and the photographs ie Ex.D1 to Ex.D19 are confronted to PW3 and it was elicited that one Waheeduddin Hyder Jaffari is in one of the photographs under Ex.D1 and suggested to PW3 that he is deposing falsely due to rivalry in the sub sects of Shia

Community, but the same was denied by PW3. PW3 is cross examined at length with regard to the sub sects in Shia Community but the same was not elicited or suggested to PW1 who is the defacto complainant in this case. Therefore, the suggestions so made to PW3 in that regard serves no purpose. Thus there is nothing on record to disbelive the testimony of PW3. Even the testimony of PW4 with stood the test of cross examination and there is no reason to disbelieve the 7 testimony of PW4 also. Thus the testimony of PW1 to PW4 on record is cogent, consistent and corroborating with one another on all material aspects. Further

PW3 and PW4 are the persons who personally witnessed the incident and as there are no reasons to disbelieve their testimony, their testimony substantiates the prosecution case and lends enough support to the prosecution case. In this regard the learned defence counsel argued that though the certificate u/sec. 65(B) of

Indian Evidence Act which was issued by PW1 himself is marked as EX.P3 in support of the prosecution case, but the same cannot be relied as the print out of the face book is down loaded by PW1 in a public internet shop and not from is own devise. In this regard the learned APP submitted a judgment of the

Honourable Supreme Court of India in

Special Leave petition No. 2302 of 2017 between Shafhi Mohammad Vs.

State of Himachal Pradesh where in it was held that “Party who is not in possession of device from which the document is produced, such party cannot be required to produce certificate u/sec. 65(B) of Evidence Act. The applicability of requirement of certificate being procedural can be relaxed by Court wherever interest of justice so justifies.”

In the case on hand also, the same thing can be applied as Ex.P2 print out is secured by PW1 from an internet center and not from his own devise in those circumstances even in the absence of any certificate EX.P2 can be relied upon and 8 the requirement of the certificate even can be relaxed in the interest of justice.

Moreover Ex.P2 was marked without any objection. Therefore, on that ground also, the plea of the learned defence counsel is not tenable and acceptable.

17.In support of the prosecution case, the prosecution also examined one of the panch witness to the scene observation panchanama/CDF as PW5 and he deposed in support of the prosecution case and Ex.P4 CDF is marked through him and whereas the evidence of the investigating officer ie PW6 further lends support to the prosecution case and Ex.P5 FIR is marked through PW6. Even while cross examining PW1 to PW4 and PW6 conducting of said press conference on 29-6- 2016 was no where denied (or) disputed by the accused and it is not even denied (or) disputed that the accused presided the said meeting and supervised the said meeting. Therefore, it further lends support to the prosecution case. Thus the evidence on record amply proves the offence u/sec. 2(h)(i) of Prevention of insult to National Honour Act., and prosecution succeeded in proving the guilt of the accused beyond all reasonable doubt. Hence the accused is liable for penal consequences.

Dictated to Stenographer Gr-II, transcribed and typed by her, corrected and

pronounced by me, in the open Court on this the 14th day of December, 2018.

VIII ADDL CHIEF METROPOLITAN MAGISTRATE

HYDERABAD

18.When questioned about the quantum of sentence the accused stated that he is alone and prayed mercy of the court.

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19.Having regard to facts and circumstances it is not a fit case to invoke sec.

360 Cr.P.C. or the provisions of Probation of offenders Act. However having regard to the nature of offence and the facts and circumstances of the case and the prayer of the accused person, I am inclined to take a lenient view in imposing sentence.

20.In the result the accused is found guilty for the offence u/sec. 2(h)(i) of

Prevention of insult to National Honour Act., and he is hereby convicted in terms of section 248(2) Cr.P.C. and sentenced to pay fine of Rs.3500/- (Three thousand

Five hundred rupees only) and in default to pay fine amount shall undergo simple imprisonment for a period of three months.

Dictated to Stenographer Gr-II, transcribed and typed by her, corrected and

pronounced by me, in the open Court on this the 14th day of December, 2018.

VIII ADDL CHIEF METROPOLITAN MAGISTRATE

HYDERABAD

::APPENDIX OF EVIDENCE::

WITNESSES EXAMINED

FOR PROSECUTION: FOR DEFENCE: PW1 : Murtuza Ali, Complainant. -Nil- PW2 : Mohd Jafar Abbas, witness. PW3 : Syed Mohd Moosi Raza, witness. PW4 : Mohd Hussain Ali, witness. PW5 : Syed Shabbir Raza Kazmi, panch witness For CDF, Scene observation panchanama and Rough sketch of scene of offence. PW6 : S.Koteshwar Rao, investigating officer.

EXHIBITS MARKED

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FOR PROSECUTION: Ex.P1 – Complaint of PW1. Ex.P2 – Print out of face book (7 pages) along with CD. Ex.P3 – Certificate u/sec. 65(B) of Indian Evidence Act., Ex.P4 – CDF along with rough sketch of scene of offence. Ex.P5 – FIR

FOR DEFENCE:

Ex.D1 to Ex.D19 are the bunch of photographs (19 in number).

M.Os MARKED

-Nil-

VIII ADDL CHIEF METROPOLITAN MAGISTRATE

HYDERABAD

IN THE COURT OF THE VIII ADDL CHIEF METROPOLITAN MAGISTRATE

HYDERABAD

Present: Smt. Ch.Ratnapadmavathi, VIII Addl. Chief Metropolitan Magistrate, Hyderabad.

FRIDAY THIS THE 21 st DAY OF DECEMBER, 2018

CALENDER CASE No. 8/2015

Between:

The State represented by the Sub-Inspector of Police, PS Dabeerpura, Hyderabad.… Complainant

And

P.Sravan Kumar R/o. H.No.18-8-417, Opposite to Bhavani Tent House, Lalitha Bagh, Uppuguda, Hyderabad. … Accused

This case is coming before me for final hearing in the presence of the A.P.P for the state and Sri.Mustafa Kamal, advocate for the accused; upon perusing the material papers on record; upon hearing both sides and having stood over for consideration till this day, this Court delivered the following:

J U D G M E N T

1. This case emerges out of the charge sheet that was filed by the SI of police,

Dabeerpura P.S., Hyderabad in Cr.No.135/2014 for the offence u/sec. 52(A) of Wakf

Amendment Act., 2013.

2.The case of the prosecution in brief is as follows:

On 5-9-2014 at about 19:30 hours Sri.Abdul Hameed (LW1) has lodged a complaint before the police stating that Masjid-e-Muhammedi (Pather-ki-Masjid) bearing no. 17-6-756 with its attached property no. 17-6-448, 454, 457 & 460 situated 2 at Daberpura near Dargha Kamil Wale, Shah Saheb, Dabeerpura,Hyderabad is a notified Wakf property got published in A.P. Gazatte No. 25-A, Part-II, dt.28-6- 1984 in Page.17 &1 8 at serial no. 1500 and it is brought to the notice of Wakf

Board that the accused has encroached the above said Wakf land and doing construction and also broken the lock of Dubba. Basing on the above complaint

Sri. B.vijaya Bhaskar Reddy (LW9) has registered a case in crime no. 135/2014 for the offence u/sec. 52(A) of Wakf Amendment Act, 2013 and issued FIR. Then

LW9 examined and recorded the statements of LW2 and LW3. Later he visited the scene of offence and caused enquiry and later he examined LW4 and LW5 and recorded their statements. Then he secured the presence of panch witnesses ie

LW7 and LW8 and conducted scene of offence panchanama, CDF and also photographed the scene. Later LW9 visited Wakf Board and examined and recorded the statement of LW1 and also collected the certified copy of Andhra

Pradesh Gazette dt. 28-6-1984. Then LW9 has issued notice to the accused u/sec.

41(A) Cr.P.C. and after completion of investigation he filed charge sheet against the accused.

3.This case is taken on file for the offence u/sec. 52(A) of Wakf Amendment

Act, 2013., against the accused. On appearance of the accused, copies of relevant documents are furnished to him as contemplated under section 207 Cr.P.C.

4.Accused is examined under section 251 Cr.P.C., for the offence under section 52(A) of Wakf Amendment Act, 2013, and the same is read over and explained to him in vernacular language, for which he pleaded not guilty and 3 claimed to be tried.

5.During the course of trial, on behalf of the prosecution, PW1 to PW8 are examined and Ex.P1 to P6 are marked on behalf of the prosecution and DW1 is examined on behalf of the defence and Ex.D1 to Ex.D8 are marked on behalf of the defence.

6.After closure of the prosecution side evidence, accused is examined u/sec.

313 Cr.P.C. for the incriminating material available against him in the evidence of prosecution witnesses, for which he denied his culpability.

7.Heard the arguments of the learned Assistant Public Prosecutor and the defence counsel.

8.Now the point that arises for consideration is:

Whether the prosecution proved the guilt of the accused beyond

all reasonable doubt for the offence under section 52(A) of Wakf

Amendment Act, 2013., ?

9. P O I N T : The case of the prosecution is that the accused trespassed into the Wakf property and constructed a wall and thereby committed the offence punishable U/sec. 52(A) of Wakf Amendment Act, 2013., Therefore, it is for the prosecution to prove its case beyond all reasonable doubt so as to bring home the guilt of the accused person.

10.As per the case of the prosecution LW1 is the defacto complainant, LW2 to

LW5 are the witnesses, LW6 is the Deputy Secretary of State Wakf Board, LW7 and LW8 are the panch witnesses for scene of offence observation panchanama and LW9 is the investigating officer. Among them the prosecution examined LW1 4 to LW5, LW7, LW6 and LW9 as PW1 to PW8 and EX.P1 to Ex.P6 are marked on behalf of the prosecution. Whereas the evidence of LW8 is given up by the prosecution. Whereas on behalf of the accused DW1 is examined and Ex.D1 to

Ex.D8 are marked. The defence of the accused is total denial of the prosecution case.

11.Now the evidence on record is to be scrutinized carefully to find out whether the prosecution is able to bring out the complicity of the accused or not.

12.The case of the prosecution is that Masjid-e-Muhammedi (Pather-ki-Masjid) bearing n o. 17-6-756, with its attached property bearing no. 17-6-448, 454, 457 & 460 situated at Dabeerpura is notified Wakf and got published in A.P. Gazatte No.

25-A, dt. 28-6-1984 and the accused encroached into the said subject Wakf land and also broke open the lock of dubba. In this regard the prosecution is only relying upon the said Gazatte notification which is marked as Ex.P1 and in this regard examined PW7 who is the then Deputy Secretary of Wakf Board who said to have issued the attested copy of the Gazatte notification ie Ex.P1 and also relied upon the joint report ie Ex.P3. On the other hand the defence of the accused is that he never encroached the Wakf property and never committed the alleged offence and infact the property bearing no. 17-6-457 belongs to them as it is bequeathed to his sister who in turn executed GPA in his favour and the said property was let out for rent and in the year 2012 itself Rent control case was filed for vacating the tenant from the said property and obtained possession of the said property through due process of court by broke open the lock by the bailiff.

5

13.Now the evidence on record is to be looked into minutely. The testimony of

PW1 reveals that he received the joint report from Task Force of Wakf Board and

Inspector of Auditor Wakf Circle No.1, stating that the accused encroached Wakf

Board property which is notified by AP Government vide receipt No.25-A ie

Ex.P1 and basing upon the said report he lodged Ex.P2 complaint and Ex.P3 is the joint report. On perusal of the joint report it reveals that, spot inspection was made in respect of the mulgi bearing no.17-6-457 which is adjacent to the mosque and is also notified as Wakf and it further reveals that accused grabbed the Wakf land by doing construction in the said mulgi bearing no. 17-6-457 which is found in their spot inspection. During the course of cross examination of PW1, it is denied that mulgi bearing no. 17-6-457 is a Wakf property and it was suggested to

PW1 that:

“Parvathi Bai has purchased disputed property through a registered

sale deed on 23-7-1963 and it was originally purchased by one Roopchand

from Mohd Ghouse in the year 1928.” and it was also suggested to PW1 that:

“disputed property was handed over to the accused through court in

E.P.No.7/2014 in RC.No.24/2012.”

and further suggested to PW1 that:

“Municipal tax for the disputed property was paid by Roopchand,”

PW1 pleaded ignorance of the same by stating that he do not know about the same and has not denied the suggestions.

6

In this regard the accused examined himself as DW1 and got marked Ex.D1 to Ex.D8 ie Ex.D1 is the Certified copy of Notarized GPA dt.6-2-2012, Ex.D2 is the Original office copy of letter dt.5-9-2014 addressed to CEO of AP State Wakf

Board by DW1, Ex.D3 is the Original office copy of the letter dt.13-12-2014,

Addressed to Inspector of police, P.S. Dabeerpura by DW1, Ex.D4 is the Certified copy of registered will deed dt. 5-5-2004, Ex.D5 is the Certified copy of registered sale deed vide document no. 1536/1963 along with translated copy, Ex.D6 is the

Certified copy of registered sale deed vide document no. 1346/1927, Ex.D7 is the

Certified copy of order in R.C.No.24/2012, Ex.D8 : Certified copy of order in

E.A.No.14/2014 in E.P.No.7/2014 in R.C.No. 24/2012 along with the Report of the bailiff.

14.On perusal of Ex.D7 which is certified copy of order in R.C.No. 24/2012, the schedule of the property is property bearing municipal no. 17-6-457 which is the disputed property in the present case and Ex.D8 further reveals that executing court issueed delivery warrant with a direction to break open the lock as there is a paper seal of the Wakf Board on the lock and to deliver the vacant possession of the schedule property and the accused here in and his sister by name P.Annapurna are the decree holders in the said execution proceedings. The bailiff report enclosed to EX.D8 clearly reveals about the delivery of possession of the mulgi bearing no. 17-6-457 by removing the seal of the lock. Therefore, Ex.D7 is order dt.31-1-2014 in RC.No. 24/2012 and Ex.D8 is order in EA 14 of 2014 in EP 7 of 2014 in R.C.No. 24 of 2012 dt. 10-7-2014. Whereas the alleged offence was 7 registered on 5-9-2014 which is subsequent to the said execution proceedings.

Therefore, Ex.D7 and Ex.D8 which are filed by the accused clearly reveals about the obtaining of delivery of possession of mulgi bearing no. 17-6-457 under due process of law by removing the paper seal of the Wakf as directed by the court.

Therefore, the said documentary evidence that is placed by the accused clearly probablizes that he acted in pursuance of the order of the court in the said execution proceedings where under possession of the said mulgi which is the disputed property is handed over to him through bailiff after break opening the lock. Therefore, it negatives the prosecution case. In those circumstances, any construction made there in as mentioned in Ex.P3 joint report is only in accordance with the orders of the executing court as stated above. Hence the testimony of PW2, PW3 which reveals that the accused raised construction with bricks in the property and also break open the lock of the dubba is of no help to the prosecution in view of Ex.D7 and Ex.D8. Even PW2 and PW3 pleaded ignorance that they do not know the proceedings of the court in EA 14 of 2014 in

EP 7 of 2014 in R.C.No. 24 of 2012 under which the possession of the property

was delivered to the accused. In those circumstances, the evidence of PW4 and

PW5 which is on the same lines as that of PW2 and PW3 is of no help to the prosecution and even PW4 and PW5 pleaded ignorance about handing over of the possession of the said mulgi by the bailiff of the Rent control court by break opening the lock.

15.It is pertinent to note that PW5 during the course of his cross examination 8 clearly admitted as follows “It is true to say that the accused is collecting the rent of mulgies.”

Which lends support to the defence of the accused.

In the above stated circumstances the Wakf Board if got any claim on the property in question ought to have worked out Civil remedies in appropriate forum.

Though the prosecution examined one of the panch witness as PW6 with regard to conducting of scene of offence panchanama, but his evidence no way improves the prosecution case in the above said circumstances. So also the testimony of investigating officer ie PW8 does not improve the prosecution case in any manner in those circumstances. However PW8 during the course of his cross examination clearly admitted as follows.

“It is true that accused gave reply to notice issued u/sec. 41(A) Cr.P.C

by stating that the locks are broke open by the bailiff as per the

orders of the court.”

Which further probablizes the defence of the accused.

Thus in view of Ex.D7 and Ex.D8 that are filed by the accused no offence is made out as alleged. Hence there is no hesitation to hold that the prosecution miserably failed to prove its case beyond all reasonable doubt. Hence the accused is entitled for acquittal.

16.In the result the accused is found not guilty for the offence under section 52(A) of Wakf Amendment Act, and he is acquitted in terms of section 255(1) 9

Cr.P.C. The bail bonds of the accused shall stand cancelled.

Dictated to Stenographer Gr-II, transcribed and typed by her, corrected and

pronounced by me, in the open Court on this the 21st day of December, 2018.

VIII ADDL CHIEF METROPOLITAN MAGISTRATE

HYDERABAD

::APPENDIX OF EVIDENCE::

WITNESSES EXAMINED

FOR PROSECUTION: FOR DEFENCE: PW1 : Abdul Hameed, complainant. DW1: P.Sravan Kumar, accused PW2 : Abdul Quddus, witness. PW3 : Mohd Basha, witness. PW4 : Mohd Siraj Ali Khan, witness. PW5 : Mohammed Abdul Sultan Mujhed, Witness. PW6 : Mohd Sameer Ahmed, panch witness for Scene of offence panchanama. PW7 : S.S.Basha, Dy. Secretary A.P. Wakf Board. PW8 : B.Vijaya Bhaskar Reddy, investigating officer.

EXHIBITS MARKED

FOR PROSECUTION: Ex.P1 – Receipt No. 25-A. Ex.P2 – Complaint of PW1. Ex.P3 – Joint report. Ex.P4 – Scene of offence panchanama. Ex.P5 – FIR. Ex.P6 – photographs of scene of offence.

FOR DEFENCE: Ex.D1 : Certified copy of Notarized GPA dt.6-2-2012. Ex.D2 : Original office copy of letter dt.5-9-2014 addressed to CEO of AP State Wakf Board by DW1. Ex.D3 : Original office copy of the letter dt.13-12-2014 Addressed to Inspector of police, P.S. Dabeerpura by DW1. Ex.D4 : Certified copy of registered will deed dt. 5-5-2004. Ex.D5 : Certified copy of registered sale deed vide document no. 1536/1963 along with translated property.

10

Ex.D6 : Certified copy of registered sale deed vide document no. 1346/1927. Ex.D7 : Certified copy of order in R.C.No.24/2012. Ex.D8 : Certified copy of order in E.A.No.14/2014 in

E.P.No.7/2014 in R.C.No. 24/2012 along with the

Report of the bailiff.

M.Os MARKED

-Nil-

VIII ADDL CHIEF METROPOLITAN MAGISTRATE

HYDERABAD

IN THE COURT OF THE VIII ADDL CHIEF METROPOLITAN MAGISTRATE

HYDERABAD

Present: Smt. Ch.Ratnapadmavathi, VIII Addl. Chief Metropolitan Magistrate, Hyderabad.

FRIDAY THIS THE 31 st DAY OF AUGUST, 2018

CALENDER CASE No. 877/2013

Between:

The State represented by the Sub-Inspector of Police, PS Chaderghat, Hyderabad.… Complainant

And

Asra Firdous W/o. Habeeb Jafar, R/o. H.No.16-7-85, Azampura, Chaderghat, Hyderabad. … Accused

This case is coming before me for final hearing in the presence of the A.P.P for the state and Sri.M.S.Rajpurohit, Advocate for the accused; upon perusing the material papers on record; upon hearing both sides and having stood over for consideration till this day, this Court delivered the following:

J U D G M E N T

1. This case emerges out of the charge sheet that was filed by the SI of police,

Chaderghat P.S., Hyderabad in Cr.No.143/2013 for the offences u/secs. 448, 324 IPC.

2.The case of the prosecution in brief is as follows:

On 6-4-2013 at about 00:05 hours Dr.Khairath Pasha (LW1) has lodged a complaint before the police stating that on 5-4-2013 at about 20:30 hours his daughter by name Asra Firdous (accused) along with two children trespassed into his house bearing no. 16-7-85 illegally and attacked him with red chilly powder and beat him, kicked him out from his house and closed his house doors. Basing on the above complaint Sri.K.Mahesh (LW8) has registered a case in crime no. 143/2013 for the 2 offences u/secs. 448, 324 IPC and handed over the case file to Sri.S.D.Kenny Ford (LW9). Then LW9 examined and recorded the statement of LW1, sent LW1 to

Osmania General Hospital. Then he visited the place of offence and examined

LW2 to LW6 and recorded their statements. Later he issued notice to the accused u/sec. 41(A) Cr.P.C and on his transfer he handed over the case file to

Sri.D.Krishna Mohan (LW10). Then LW10 has received the medical certificate of injured opining that the injury is “simple in nature” and after completion of investigation LW10 has filed charge sheet.

3.This case is taken on file for the offences u/secs. 448, 324 IPC., against the accused. On appearance of accused, copies of relevant documents were furnished to accused as contemplated under section 207 Cr.P.C.

4.Accused is examined under section 239 Cr.P.C., charges are framed for the offences under sections 448, 324 IPC., and the same is read over and explained to the accused in vernacular language, for which she pleaded not guilty and claimed to be tried.

5.During the course of trial, on behalf of the prosecution, PW1 to PW4 are examined and Ex.P1 to P3 are marked.

6.After closure of the prosecution side evidence, accused is examined u/sec.

313 Cr.P.C. and she denied her culpability and reported no defence evidence.

7.Heard the arguments of the learned Assistant Public Prosecutor and the defence counsel.

8.Now the point that arises for consideration is:

3

Whether the prosecution has proved the guilt of the accused

beyond all reasonable doubt for the offences under sections 448,

324 IPC.,?

9. P O I N T : The prosecution case is that the accused who is the daughter of the complainant trespassed into the house of the complainant, attacked him with red chilly powder and beat him on account of which the defacto complainant received injuries and thereby committed offences u/secs. 448, 324 IPC,.

Therefore, it is for the prosecution to prove its case beyond all reasonable doubt so as to bring home the guilt of the accused person.

10.As per the case of the prosecution, LW1 is the defacto complainant/victim,

LW2 to LW6 are the witnesses, LW7 is the doctor who treated LW1, LW8 is the SI of police who issued FIR, LW9 is the 1st investigating officer and LW10 is the 2nd investigating officer. Among them the prosecution examined LW1, LW5, LW9 and LW10 as PW1 to PW4 and Ex.P1 to Ex.P3 are marked on behalf of the prosecution. The evidence of LWs2 to LW4 is closed by my predecessor in office as the police failed to produce them inspite of giving several adjournments. After examining of PW1 to PW4, my predecessor in office posted the matter for sec.313

Cr.P.C. examination. Hence the evidence of LW6 to LW8 is deemed to be closed.

Whereas on behalf of the accused, the accused herself is examined as DW1 and

Ex.D1 to Ex.D8 are marked. The defence of the accused is total denial of the prosecution case.

11.Now the evidence on record is to be scrutinized carefully to find out 4 whether the prosecution is able to bring out the complicity of the accused or not.

12. As per the contents in the charge sheet and as per Ex.P1 complaint, there is civil dispute in between the accused and the defacto complainant in respect of the house bearing no.16-7-85 where the alleged offence is alleged to have been committed. Therefore, the evidence on record is to be scrutinized and evaluated with much care and caution so as to rule out the chance of false implication.

13.PW1 who is the defacto complainant in this case, during the course of his chief examination, categorically deposed that on 5-4-2013 at about 8:30 PM the accused along with her two children came to his house and knocked the door and then he opened the door and on that the accused attacked him with red chilly powder and pushed him and necked him out from the house and locked the door of his house and in that connection he sustained injury on his forehead and then he lodged Ex.P1 complaint.

14.During the course of cross examination, PW1 admitted that civil suit is pending in between himself and accused in O.S.No. 526/2013 on the file of 1st

Senior Civil Judge, City Civil Court and the plaint copy there in is marked as

Ex.D1 which reveals that the said suit is filed by the accused against PW1 herein for perpetual injunction on 4-4-2013 ie one day prior to Ex.P1 complaint. As could be seen from Ex.D1, the said suit was filed seeking for perpetual injunction in respect of house bearing no. 16-7-85 by claiming the same under oral gift dt.

7-1-2011. Thus Ex.D1 clearly probablizes that there is civil dispute in between the accused and PW1 herein by the date of Ex.P1 complaint in respect of the same 5 house which is the alleged scene of offence by asserting that the accused is in possession and enjoyment of the said house. Therefore, it is for the prosecution to prove that the house bearing no. 16-7-85 belongs to PW1 and he is the owner of the same and it is under his occupation (or) possession by the date of Ex.P1 to attract the alleged offence u/sec. 448 IPC. But no piece of document is got marked on behalf of prosecution to prove that PW1 is owner of the said house and is in possession of the same by the date of Ex.P1.

15.In this regard, PW1 during the course of cross examination clearly admitted as follows

“it is true that I have not filed documents before the

court to show that I am owner of H.No.16-7-85.”

He further admitted that:

“It is true that the accused is residing in the ground floor of the house.”

From the own admissions of PW1 as extracted above, it is crystal clear that the accused is residing in the said house in the ground floor. On the other hand no document was filed by PW1 to show that he is the owner of the house bearing no. 16-7-85 and is in possession of the same by the date of Ex.P1 complaint. Even the investigating officer ie PW4 clearly admitted during the course of cross examination that

“It is true to say that PW1 has not submitted any

document to show that he is the owner of the building.” 6

In those circumstances, the alleged offence u/sec. 448 IPC does not attract.

Further as could be seen from Ex.D6 which is the certified copy of decree in O.S.

No. 526/2013, the suit was decreed in favour of the accused herein on 12-7-2017 and it further probablizes the plea of the defence and further lends support to the admissions made by PW1. Thus, on the own showing of PW1 the offence u/sec.

448 IPC does not attract. Therefore, it raises a reasonable doubt about the credibility of the prosecution case.

16.Regarding the offence u/sec. 324 IPC, it is pertinent to note that in Ex.P3 medical certificate, it was mentioned that the defacto complainant has stated that “he was beaten by some unknown person.” Even PW4 clearly admitted inhis cross examination that “It is true that as per Ex.P3, PW1 sustained injuries in the hands of unknown person.” As such there is no mention in Ex.P3 that the defacto complainant was beaten by the accused who is his daughter and there isno explanation in this regard. Therefore, it raises a reasonable doubt as to who caused alleged hurt to PW1.

17.Moreover, from the testimony of PW1, it is evident that he no where deposed that the accused has beat him on his forehead, but his testimony reveals that she attacked him with red chilly powder, but the red chilly powder was not seized and no traces of chilly powder were found at the alleged scene of offence as the evidence of PW3 and PW4 who are the investigating officers does not reveal anything to that effect, which raises a reasonable doubt about the veracity of the prosecution case. Moreover as could be seen from the record, no scene 7 observation panchanama was conducted so as to prove that the chilly powder was thrown or sprinkled over PW1. The testimony of PW1 is not trustworthy and reliable. Further the alleged witnesses ie LW2 to LW4 are not examined and their evidence is closed as the concerned police not produced LW2 to LW4 inspite of granting several adjournments. Whereas PW3 admitted during the course of cross examination that “It is true that no neighbours has gave statement before me to support the version of PW1.” Thus there is no corroboration of independent witnesses corroborating the evidence of PW1.

18.Though PW2 who is cited as one of the witness is examined on behalf of prosecution, but his testimony does not reveal that the accused has beat PW1, but his testimony only reveals that the accused attacked her father with red chilly powder, due to which PW1 got burning in his eyes. The very presence of PW2 at the time of alleged incident is neither mentioned in Ex.P1 nor deposed by PW1.

Further as per the own testimony of PW2 he is having house at Phoolbagh and whereas the alleged offence took place at Azampura. Hence the presence of PW2 is highly doubtful and his evidence cannot be relied. Further Ex.P3 medical certificate does not reveal about any burning of eyes of PW1 due to use of chilly powder. So also no weapon is seized by the investigating agency. Thus the testimony of PW1 and PW2 is not reliable on the face of it and accused cannot be connected with the alleged offence u/sec. 324 IPC or 323 IPC.

19.Though the prosecution examined the first investigating officer and 2nd investigating officers as PW3 and PW4, but their evidence will not improve the 8 prosecution case, as the testimony of PW1 and PW2 is not cogent, consistent and reliable for the reasons stated above to base conviction. Hence the alleged offences u/secs. 448 IPC and 324 IPC are not proved by the prosecution beyond all reasonable doubt. Hence the accused is entitled for acquittal.

20.In the result the accused is found not guilty for the offences under sections 448, 324 IPC., and she is acquitted in terms of section 248(1) Cr.P.C. The bail bonds of the accused if any shall stand cancelled.

Dictated to Stenographer Gr-II, transcribed and typed by her, corrected and

pronounced by me, in the open Court on this the 31st day of August, 2018.

VIII ADDL CHIEF METROPOLITAN MAGISTRATE

HYDERABAD

::APPENDIX OF EVIDENCE::

WITNESSES EXAMINED

FOR PROSECUTION: FOR DEFENCE:

PW1 : Khairath Pasha, Complainant. DW1: Asra Firdous. PW2 : Akbar, witness. PW3 : S.D.Kenny Ford, 1st investigating officer. PW4 : Krishna Mohan, 2nd investigating officer.

EXHIBITS MARKED

FOR PROSECUTION: Ex.P1 – Complaint of PW1. Ex.P2 – FIR. Ex.P3 – Medical certificate of PW1.

FOR DEFENCE

Ex.D1:CC of Plaint in O.S.No.526/13 9

Ex.D2:CC of written statement in O.S.No.526/2013. Ex.D3:CC of Order in IA 530/2013 Ex.D4:CC of additional WS in O.S. 526/2013. Ex.D5:CC of photos. Ex.D6:CC of Decree in O,.S.No.526/2013. Ex.D7:CC of order in I.A.No. 624/2016. Ex.D8:CC of decree in IA.No. 624/2016.

M.Os MARKED

-Nil-

VIII ADDL CHIEF METROPOLITAN MAGISTRATE

HYDERABAD

IN THE COURT OF THE VIII ADDL CHIEF METROPOLITAN MAGISTRATE

HYDERABAD

Present: Smt. Ch.Ratnapadmavathi, VIII Addl. Chief Metropolitan Magistrate, Hyderabad.

MONDAY THIS THE 17 th DAY OF DECEMBER, 2018

CALENDER CASE No. 791/2015

Between:

The State represented by the Sub-Inspector of Police, PS Reinbazar, Hyderabad.… Complainant

And

A1.Md.Ibrahim Khaleeluddin @ Ibrahim S/o. Md.Abdul Kareem Mohiuddin, Age 23 years.

A2.Md.Asif Mohinuddin @ Asif S/o. Md.Abdul Kareem Mohiuddin, Age 30 years.

A3.Md.Abdul Aleem Mohinuddin @ Aleem. S/o. Md.Abdul Kareem Mohiuddin Age 25 years.

All are R/o. H.No. 17-3-413, Imliban, Yakuthpura, Hyderabad. … Accused

This case is coming before me for final hearing in the presence of the A.P.P for the state and Sri.B.J.Reddi and Sri.Md.Saleem, advocates for the accused; upon perusing the material papers on record; upon hearing both sides and having stood over for consideration till this day, this Court delivered the following:

J U D G M E N T

1. This case emerges out of the charge sheet that was filed by the SI of police,

Reinbazar P.S., Hyderabad in Cr.No.113/2015 for the offence u/sec. 324 r/w 34 IPC., 2

2.The case of the prosecution in brief is as follows:

On 17-5-2015 at about 03:00 hours Sri.Asif (LW1) has lodged a complaint

before the police stating that on 16-5-2015 at about 22:15 hours while after

completing prayers at Bada Bazar Mosque and moving to his house and while passing through Al-Kareem Chicken center accused who are cleaning the shop has poured the waste water on the road resulting some water fallen on LW1. On that some heated argument took place and all of sudden A1 to A3 beat LW1 with sticks, due to which he received injuries at right eye brow and right shoulder.

Basing on the above complaint Sri.Syed Burhan (LW4) has registered a case in crime no. 113/2015 for the offence u/sec. 324 r/w 34 IPC, issued FIR and handed over the case file to Sri.V.Satyanarayana (LW5). Then LW5 visited Osmania

General Hospital and recorded the statement of LW1. Later LW5 visited the scene of offence and recorded the statement of LW2. Later LW5 along with staff apprehended A1 to A3 and on interrogation they confessed their guilt. Then LW5 served notices to A1 to A3 u/sec. 41(A) Cr.P.C. Later LW5 received medical certificate of LW1 opining that the final diagnosis is Acid Peptic Disease as the patient was absconded from hospital and after completion of investigation he filed charge sheet against the accused.

3.This case is taken on file for the offence u/sec. 324 r/w 34 IPC., against A1 to A3. On appearance of the accused, copies of relevant documents are furnished to them as contemplated under section 207 Cr.P.C.

4.A1 to A3 are examined under section 239 Cr.P.C., charge is framed for the 3 offence under section 324 r/w 34 IPC, and the same is read over and explained to them in vernacular language, for which they pleaded not guilty and claimed to be tried.

5.During the course of trial, on behalf of the prosecution, PW1 and PW2 are examined and Ex.P1 to P4 are marked on behalf of the prosecution.

6.After closure of the prosecution side evidence, A1 to A3 are examined u/sec.

313 Cr.P.C. for the incriminating material available against them in the evidence of prosecution witnesses, for which they denied their culpability and reported no defence evidence.

7.Heard the arguments of the learned Assistant Public Prosecutor and the defence counsel.

8.Now the point that arises for consideration is:

Whether the prosecution proved the guilt of A1 to A3 beyond all

reasonable doubt for the offence under section 324 r/w 34 IPC., ?

9. P O I N T : The case of the prosecution is that A1 to A3 attacked defacto complainant ie LW1 and beat him with sticks and voluntarily caused hurt to him and thereby committed the offence punishable U/sec 324 r/w 34 IPC. Therefore, it is for the prosecution to prove its case beyond all reasonable doubt so as to bring home the guilt of the accused persons.

10.As per the case of the prosecution, LW1 is the defacto complainant/injured,

LW2 is the eye witness, LW3 is the doctor who treated the injured, LW4 is the

Head constable who issued FIR and LW5 is the investigating officer. Among them the prosecution has examined LW1 and LW5 as PW1 and PW2 and Ex.P1 to 4

Ex.P4 are marked on behalf of the prosecution. The evidence of LW2 is closed by my predecessor-in-office as the concerned police filed a report stating that whereabouts of LW2 are not known. Whereas the evidence of LW3 is closed as the concerned police filed a report stating that whereabouts of LW3 are not known. Whereas the evidence of LW4 is closed in view of the evidence of PW2 on record. The defence of the accused is total denial of the prosecution case.

11. Now the evidence on record is to be scrutinized carefully to find out whether the prosecution is able to bring out the complicity of the accused or not.

12.As this is a case of voluntarily causing hurt to the defacto complainant, the evidence of the defacto complainant cum injured as well as the medical evidence in support there off plays a vital role in bringing home the guilt of the accused persons. Here in the case on hand, PW1 who is the defacto complainant /injured alone is examined as the evidence of eye witness ie LW2 is closed on the ground that his whereabouts are not known.

PW1 who is the defacto complainant/injured in this case categorically deposed that on 16-5-2015 at about 10:15 PM after completing his prayer when he is going to his house from Bada Bazaar and when he reached near one chicken center the persons from the chicken center has thrown blood water on him. Then he asked them to do work as “Dekh ke Vore.” then all the accused came to him and A2 has caught hold him and A1 has beat him with stick on his right shoulder and A3 has fisted on his right eye boll due to which he sustained injury to his right eye. Then some persons came to his rescue and shifted him to the hospital and his 5 statement was recorded by the police under Ex.P1. During the course of cross examination, he deposed as follows.

“It is true to say that I have not mentioned in Ex.P1 as the accused has thrown blood water.” “It is true to say that I have not specifically mentioned in

Ex.P1 that A2 has caught hold me and A1 beat me with stick and

A3 has fisted on my right eye brow.”

From the above said testimony of PW1 it is crystal clear that there are glaring improvement in his evidence. So far as the date of occurrence of alleged offence is concerned at one breath he stated that the incident was occurred on 16- 5-2015 and at another breath he stated that the incident took place on 17-5-2015.

As could be seen from the FIR, the alleged occurrence of offence is on 16-5-2015.

Therefore, the alleged occurrence of offence on 16-5-2015 is doubtful in view of the inconsistent testimony of PW1. Further PW1 during the course of his cross examination, categorically admitted as follows.

“It is true that the doctor has not discharged me and I myself left the hospital.”

When once the alleged occurrence of incident on 16-5-2015 is highly doubtful, for the reasons stated above, the sustaining of injuries by PW1 during the course of alleged incident on 16-5-2015 is also doubtful. Therefore, apparently the testimony of PW1 is not trustworthy and reliable. Moreover the evidence of PW1 is not corroborated by the testimony of any independent 6 witnesses as the evidence of LW2 is closed for the reasons stated above.

13.Further the alleged injury on the right eye of PW1 is even not proved by the prosecution beyond all reasonable doubt by medical evidence as the doctor who said to have been treated PW1 ie LW3 is not examined and his evidence is closed on 13-12-2018 as the concerned police filed a report stating that his whereabouts are not known, as he vacated the house. It is further pertinent to note that initially

LW3 appeared before the court on 23-7-2018 and orally stated before the court that he has not treated PW1 and not issued any medical certificate. Though the wound certificate of PW1 is marked through the investigating officer ie PW2 as

Ex.P3 without any objection, but even on perusal of Ex.P3, it does not contain the signature of the doctor who treated PW1 and the opinion column is also left blank.

In this regard PW2 who is the investigating officer categorically admitted as follows.

“It is true that the wound certificate does not contain the name of the CMO, Signature of the CMO, opinion column is left

Blank.”

When once Ex.P3 does not contain the signature of any doctor it need not be looked into and moreover no opinion is there in Ex.P3 about the nature of alleged injuries. Therefore Ex.P3 is no way helpful to the prosecution in proving the alleged offence.

In this regard the prosecution also got marked one letter, through PW2 which is addressed by the Superintendent, Osmania General Hospital to Inspector 7 of police, Reinbazar as Ex.P4. As per Ex.P4, the patient by name Md.Asif is absconded from the hospital on 17-5-2015 and final diagnosis is (Acid Peptic

Disease). Therefore, even Ex.P4 reveals that PW1 absconded from the hospital on 17-5-2015. Therefore, it clearly proves that PW1 has not taken any medical treatment. Consequently Ex.P3 and Ex.P4 are of no help to the prosecution in proving the alleged offence. Thus there is even no medical evidence on record in support of the prosecution case. In those circumstances, the testimony of investigating officer ie PW2 will not improve the prosecution case in any manner.

Further the weapon ie sticks were not even recovered (or) seized and not got marked as material object in support of the prosecution case which is also a seious lacuna in the prosecution case. Thus there is no hesitation to hold that the prosecution miserably failed to prove its case beyond all reasonable doubt. Hence the accused are entitled for acquittal.

14.In the result A1 to A3 are found not guilty for the offence under section 324 r/w 34 IPC., and they are acquitted in terms of section 248(1) Cr.P.C. The bail bonds of the accused shall stand cancelled.

Dictated to Stenographer Gr-II, transcribed and typed by her, corrected and

pronounced by me, in the open Court on this the 17th day of December, 2018.

VIII ADDL CHIEF METROPOLITAN MAGISTRATE

HYDERABAD

::APPENDIX OF EVIDENCE::

WITNESSES EXAMINED

FOR PROSECUTION: FOR DEFENCE: PW1 : Asif, complainant. -Nil- 8

PW2 : V.Satyanarayana, investigating officer.

EXHIBITS MARKED

FOR PROSECUTION: FOR DEFENCE: Ex.P1 – Statement of PW1. -Nil- Ex.P2 – FIR Ex.P3 – Wound certificate of PW1. Ex.P4 – Letter dt. 23-6-2015 addressed by Superintendent, OGH to Inspector of police, Reinbazar.

M.Os MARKED

-Nil-

VIII ADDL CHIEF METROPOLITAN MAGISTRATE

HYDERABAD