Delhi District Court
Parvez Ahmed vs State on 17 April, 2026
IN THE COURT OF SH. ABHISHEK GOYAL, ADDITIONAL
SESSIONS JUDGE-03, CENTRAL DISTRICT, TIS HAZARI
COURTS, DELHI
CNR No.: DLCT01-006879-2020
CRIMINAL APPEAL No.: 162/2020
PARVEZ AHMED,
S/o. Shri. Iqbal Ahmad,
H. No. 3107, Gali Vakil Wali,
Kucha Pandit, Hauz Qazi,
Delhi-110006. ... APPELLANT
VERSUS
STATE (GNCT OF DELHI) ... RESPONDENT
Date of filing : 16.10.2020
Date of institution : 17.10.2020
Date when judgment was reserved : 26.02.2026
Date when judgment is pronounced : 17.04.2026
JUDGMENT
1. The present appeal has been filed under Section 374
of the Code of Criminal Procedure, 1973 (hereinafter, referred to
as ‘Cr.P.C./Code’)/pari materia with Section 415 of Bharatiya
Nagarik Suraksha Sanhita, 2023 (hereinafter referred to as
‘BNSS’) against the judgment dated 14.07.2020 (hereinafter
referred to as ‘impugned judgment’), passed by learned
Additional Chief Metropolitan Magistrate-02/Ld. ACMM-02,
Central, Tis Hazari Court, Delhi (hereinafter referred to as the
‘Ld. Trial Court/Ld. ACMM’) in case bearing; ‘State v. Javed &
Ors., CIS No. 298773/2016′, arising out of FIR No. 73/2011, PS.
Hauz Qazi, under Sections 186/332/353/34 of the Indian Penal
Code, 1860 (hereinafter referred to as ‘IPC‘), convicting the
appellant, namely, Parvez Ahmed (hereinafter referred to as the
‘appellant’) and co-accused persons, namely, Javed and Naved
(hereinafter referred to as the ‘co-accused persons’; hereinafter
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ABHISHEK GOYAL
Date:
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appellant and co-accused persons are collectively referred to as
the ‘accused persons’) for the offences under Sections 186, 332
and 353 IPC read with Section 34 IPC and the consequent order
of sentence dated 16.07.20201 (hereinafter referred to as
‘impugned order’), passed by the Ld. Trial Court, inter alia
sentencing the appellant with rigorous imprisonment for a period
of 03 (three) months for the offence under Section 186 IPC;
rigorous imprisonment for a period of 06 (six) months for the
offence under Section 332 IPC; and rigorous imprisonment for a
period of 06 (six) months for the offence under Section 353 IPC,
sentences to run concurrently. Correspondingly, the appellant
was directed/sentenced to pay a compensation to a tune of Rs.
25,000/- (Rupees Twenty Five Thousand only) to the
victim/complainant, ASI Shri Krishan, in default of payment of
which, it was directed that the appellant would undergo simple
imprisonment for a period of 03 (three) months for the said
offences. Further, the appellant was directed to be entitled to the
benefit of the provisions under Section 428 Cr.P.C./pari materia
with Section 468 BNSS (hereinafter the impugned judgment and
impugned order are collectively referred to as the ‘impugned
judgment and order’).
2. Succinctly, the case of the prosecution is that on
03.09.2011 on receipt of PCR call vide DD No. 7A, the
concerned police official(s) reached at the spot, i.e., near H. No.
3107, Gali Vakil Wali, Kucha Pandit, Hauz Quazi, Delhi
1
Notably, the instant appeal was filed during the period when covid-19 restrictions were ongoing and the Hon’ble
Supreme Court in Re: Cognizance for Extension of Limitation, Suo Motu Writ Pet. (C) No. 3/2020, dated
10.01.2022 had directed for exclusion of period from 15.03.2020 till 28.02.2022 shall stand excluded for the
purposes of limitation inter alia holding, “*** I. The order dated 23.03.2020 is restored and in continuation of the
subsequent orders dated 08.03.2021, 27.04.2021 and 23.09.2021, it is directed that the period from 15.03.2020 till
28.02.2022 shall stand excluded for the purposes of limitation as may be prescribed under any general or special
laws in respect of all judicial or quasi judicial proceedings. *** III. In cases where the limitation would have expired
during the period between 15.03.2020 till 28.02.2022, notwithstanding the actual balance period of limitation
remaining, all persons shall have a limitation period of 90 days from 01.03.2022. In the event the actual balance
period of limitation remaining, with effect from 01.03.2022 is greater than 90 days, that longer period shall apply…”
(Emphasis supplied) C.A. No. 162/2020 Parvez Ahmed v. State (NCT of Delhi) Page 2 of 50 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date: 2026.04.17 14:52:55 +0530
(hereinafter referred to as the ‘spot’), where it was determined
that a quarrel had ensued with the Assistant Sub Inspector/ASI
and that he had been shifted for JPN Hospital. Consequently, the
concerned police official(s) proceeded for the said Hospital,
where the victim/complainant, namely, Shri Krishan (hereinafter
referred to as the ‘complainant/victim’) was found under
treatment vide MLC No. 137347. Notably, under the said MLC,
the concerned Doctor had inter alia recorded, “…CLW over Lt.
eyebrow 1*0.5 cm…swelling below Lt. eye… pain & swelling
nose… bleeding from nose… pain & swelling occipital
region…”, which injuries were subsequently opined to be, “…
simple from clinical point of view…”.
2.1. Congruently, statement of the complainant was
recorded wherein he/the complainant inter alia proclaimed that at
the relevant point in time, he was working as ASI in PS. Hauz
Quazi and was engaged in emergency duty from 09:00 p.m. to
09:00 a.m. on 02/03.09.2011. Correspondingly as per the
complainant, at around 12:30 a.m. on the said day, i.e., on
03.09.2011, DD No. 2A, regarding playing of Disc Jockey (‘D/J’
for short) in Gali Vakil Wali, was marked to him. Consequently, as
per the complainant, Ct. Rajesh and he/the complainant,
proceeded for Gali Vakil Wali, Kucha Pandit and it was
determined that a D/J instrument was playing in a loud voice,
below H. No. 3107, Gali Vakil Wali, Kucha Pandit, Hauz Quazi,
Delhi/spot and persons present there were acting in a loud as well
as unruly manner (House No. 3107 के नीचे D/J बज रहा था और काफी लड़के
शोर शराबा व हुकदंग बाजी कर रहे थे). It was further avowed by the
complainant that he asked for said D/J instrument to be stopped.
Thereupon, as per the complainant, music/noise was ceased and
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ABHISHEK GOYAL
GOYAL Date:
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most of the people, who were acting in rowdy/unruly manner,
dispersed. However, it was further proclaimed by the
complainant that only a few people remained present at the spot
and after some time, Parvez and Javed, whom the complainant
knew from before, reached there. Further, as per the complainant,
immediately on reaching at the spot, Parvez and Javed enquired
from the persons present there as to the reason for stopping the
music and Parvez switched on the D/J instrument in high volume
(जिन्होंने D/J को बन्द कर दिया जो लड़के शोर शराबा व हुरदंग बाजी कर रहे वो वहां से
डिसप हो गये वहां कु छ लड़के खड़े रह गये तथा परवेज व जावेद उसी वक्त अन्दर से आये
जिनको मैं पहले से अच्छी तरह जानता था और वहां खड़े हुये लड़कों को कहने लगे कि
D/J बन्द क्यों कर दिया है और परवेज ने D/J की दुबारा ऊं ची अवाज में चालू कर दिया).
Upon this, the complainant is asserted to have protested to
Parvez, informing him that a complaint regarding high volume of
noise was already received at the police station and that as per the
directions of the Hon’ble Supreme Court, playing of music at
high volume was not permitted, post 10 p.m. However,
undeterred, Parvez is stated to have increased the volume of the
D/J instrument, further. Thereafter, as per the complainant, he
asked Ct. Rajesh to arrange for a rickshaw so that the D/J
instrument may be removed from the spot and Ct. Rajesh,
consequently, proceeded to arrange for the same. In the
meanwhile, as per the complainant, Parvez and Javez called their
other two associates to the spot, while proclaiming that they
would teach a lesson to the complainant for stopping the music
(“…aaj ise D/J ko band karne ka maza chakhate hain…”; परवेज व जावेद ने
अन्दर से अपने दो साथी और बुला लिये और कहने लगे कि आज इसे D/J को बन्द करने
का मजा चवाते हैं और चारों मेरे साथ मार पिटाई करने लग गये). Consequently, all
four said persons started to beat up the complainant. Further, as
per the complainant, Javed grabbed and tore the collar of hisC.A. No. 162/2020 Parvez Ahmed v. State (NCT of Delhi) Page 4 of 50
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ABHISHEK GOYAL
GOYAL Date:
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uniform, whilst, Parvez punched him/the complainant with an
iron ‘punch-like’ object which he was wearing on his right hand
at that point in time. As per the complainant, Parvez inflicted
injuries/punches on his face with the said object, leading to the
complainant’s sustaining injuries on his eye and nose (जावेद ने मेरी
गिरेबान पकड़ कर खींच सी जिससे मेरी पहनी हुई वर्दी की शर्ट कट गई और परवेज ने
अपने दाहिने हाथ में लोहे का पन्चनुमा चीज़ पहनी हुई थी जिसने मेरी दाहिनी आं ख नाक
पर घूंसे मारे जिससे मेरे खून निकलने लग गया), whilst the other associates of
Parvez, inflicted kicks and punches on the complainant.
However, in the meanwhile, Ct. Rajesh returned to the spot,
while raising and alarm and on seeing him, the perpetrators are
asserted to have withdrawn/fled from the spot, while also taking
D/J along with them.
2.2. Markedly, under said facts and circumstances, the
instant FIR came to be registered, and investigation ensued.
Notably, during the course of ensuing investigation, site plan of
the incident spot was prepared and statements of various
witnesses were recorded. Correspondingly, the accused persons,
namely, Parvez Ahmed, Javed and Naved were
apprehended/arrested. However, the identity of the fourth
accused could not be determined. Thereafter, opinion on the
nature of injuries of the complainant/victim was determined,
which, as aforenoted, was determined to be ‘simple’. Noticeably,
on conclusion of the investigation, chargesheet was filed before
the concerned court/Ld. Trial Court.
2.3. Remarkably, upon such chargesheet being filed, Ld.
Trial Court took cognizance of the offences, as specified under
the chargesheet vide order dated 15.05.2012 and issued summons
to the accused persons. Subsequently, on compliance of the
provisions under Section 207 Cr.P.C., arguments on the aspect of
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ABHISHEK GOYAL
Date:
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charge were addressed by/on behalf of the accused as well as
State. Consequently, on considering the material brought on
record, in light of the arguments addressed, Ld. Trial Court vide
order dated 01.11.2012, directed framing of charges under
Sections 186/332/353/34 IPC against the accused persons inter
alia under the following observations;
“…Both the parties heard on charge. Entire
material on record perused. Prima facie an offence
punishable u/s. 186/353/332/34 IPC is made out
against all the three accused. Charge under the same
section is framed accordingly. Accused pleaded not
guilty and claimed trial.
Put up on … for PE.”
(Emphasis supplied)
2.4. Pertinent to reproduce the charges framed inter alia
against the appellant on 01.11.2012, as under;
“…I ***, Metropolitan Magistrate, Delhi, do
hereby charge you (1) Parvez Ahmad (2) Javed
Ahmad (3) Naved all s/o Iqbal Ahmad as under
That on 03.09.2011 at about 12.40 am (in the
night) at H. No. 3107, Gali Wakil Wali, Kucha
Pandit, Hauz Qazi, within the jurisdiction of PS
Hauz Qazi you all in furtherance of common
intention had voluntarily obstructed complainant-
ASI Srikishan (public servant) in discharge of his
public function and thereby committed offence
punishable u/s 186/34 IPC and within my
cognizance.
Secondly, on the aforesaid time, date and place
you all in prosecution of your common intention
used criminal force against complainant in execution
of his public function in order to prevent him from
executing their lawful duties and thereby committed
offence punishable u/s 353/34 IPC and within my
cognizance.
Thirdly, on the aforesaid date, time and place you
all in furtherance of common intention voluntarily
caused hurt to the ASI Srikishan a public servant
while discharging his official duties as public
servants and thereby committed an offence
punishable u/s 332/34 IPC and within my
cognizance.
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And I hereby direct you to be tried by this Court
for the aforesaid offences…”
(Emphasis supplied)
2.5. Relevantly, during the course of trial, prosecution
examined 11 (eleven) witnesses/prosecution witnesses, who
deposed in their respective testimonies, regarding the following;
Prosecution Particulars of Description
witness no. the witness
PW-1 Ct. Rajesh Deposed inter alia regarding him,
accompanying the complainant to
Kucha Pandit, Gali Vakil Wali, where
certain persons were found playing
music in a loud voice. PW-1 further
deposed of seeking the complainant
in an injured state, being surrounded
by some boys and he/PW-1 identified
accused Javed and Naved as the said
persons/boys.
PW-2 ASI Shri Complainant/Victim, who inter alia
Krishan deposed of the incident as well as
identified the accused persons before
the Ld. Trial Court.
PW-3 HC Raman Deposed of having received rukka
Dass from Ct. Rajesh on 03.09.2011 at
around 03:25 a.m. as well as of
registration of FIR on the basis
thereof.
PW-4 Dr. Ravinder Deposed inter alia regarding
(erroneously Kumar preparation of MLC of the
renumbered victim/complainant bearing no.
as PW-3) 137347 by Dr. Naveen, Junior
Resident, as well as proved Dr.
Naveen's and his/PW-4's signatures
on the said MLC.
PW-5 Ct. Narender Testified inter alia regarding him
joining the investigation along with
IO/SI Sakir Khan and participating in
the arrest proceedings of the accused
persons as well as of the recovery
proceedings of the punch, at the
instance of accused Parvez Ahmed.
PW-6 ASI Ramesh MHC(M) at relevant point in time.
Chander Proved the entries in register no. 19,
regarding deposit of case property in
malkhana on 03.09.2011 and
04.09.2011.
PW-7 HC Rajesh Proved DD No. 2A, recorded by
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ABHISHEK GOYAL
GOYAL Date:
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Kumar him/PW-7 on 03.09.2011 at around
12:30 a.m.
PW-8 ASI Murli Deposed inter alia regarding him,
Singh responding to DD No. 7A/8A and
meeting the complainant in JPN
Hospital; obtaining the MLC of the
victim; subsequently, recording the
statement of the complainant;
preparing rukka on the basis thereof;
getting the FIR registered; seizing
articles; and subsequently handing
over the articles seized/investigation
further to IO/SI Sakir Khan.
PW-9 ACP (Retd.) Deposed inter alia regarding him
Ram Kumar making a complaint under Section
195 Cr.P.C., on receipt of complaint
from ASI Shri Krishan and proved
the said complaint as Ex. PW9/A.
PW-10 SI (Retd.) Md. Investigating Officer/IO of the case,
Sakir Khan who deposed inter alia regarding the
investigation conducted in the
present case; arrest of accused
persons; depositing the case property
in malkhana; etc.
PW-11 HC Prakash Deposed inter alia regarding him
Chand joining the investigation and
participating in the arrest
proceedings of the accused persons.
2.6. Pertinent to note here that the aforenoted
witnesses/prosecution witnesses further exhibited/proved the
following documents/material objects, during the course of their
respective evidence;
Exhibit Description of Exhibit Proved
no./Material by/Attested
objects by/Exhibited by
Ex. PW1/A Statement/complaint of the PW-1/Ct. Rajesh
complainant/victim. and PW-2/ASI
Shri Krishan
Ex. PW1/B Site plan of the place of PW-1/Ct. Rajesh
occurrence.
Ex. PW1/C Seizure memo of articles in PW-1/Ct. Rajesh
pullanda and sample seal.
Ex. PW2/A DD No. 2A, dated 03.09.2011. PW-2/ASI Shri
Krishan
Ex. PW2/B Arrest memo of the accused, PW-2/ASI Shri
Javed. Krishan
Ex. PW2/C Arrest memo of the accused, PW-2/ASI Shri
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ABHISHEK GOYAL
Date:
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Parvez Ahmed. Krishan
Ex. PW2/D Arrest memo of the accused, PW-2/ASI Shri
Naved. Krishan
Ex. PW2/E Personal search memo of the PW-2/ASI Shri
accused, Javed. Krishan
Ex. PW2/F Personal search memo of the PW-2/ASI Shri
accused, Naved. Krishan
Ex. PW2/G Personal search memo of the PW-2/ASI Shri
accused, Parvez Ahmed. Krishan
Ex. PW2/H Seizure memo of punch, stated PW-2/ASI Shri
to be recovered at the instance of Krishan
the accused, Parvez Ahmed.
Ex. P2 Punch, produced by MHC(M) PW-2/ASI Shri
and stated to be used at the time Krishan
of commission of offence
Ex. P2 Shirt, produced by MHC(M) and PW-2/ASI Shri
stated to be worn by the victim Krishan
at the time of incident
Ex. P3(Colly.) Shirt and pant produced by the PW-2/ASI Shri
MHC(M) stated to be worn by Krishan
accused Javed on the date of
incident.
Ex. PW3/A Copy of FIR No. 73/2011, PS. PW-3/HC Raman
(OSR) Hauz Qazi Dass
Ex. PW3/B Endorsement on rukka at points PW-3/HC Raman
X to X Dass
Ex. PW3/C Copy of DD No. 6A, dated PW-3/HC Raman
(Colly.) (OSR) 03.09.2011; DD No. 7A, dated Dass
03.09.2011; and DD no. 8A,
dated 03.09.2011
Ex. PW3/A MLC No. 137347 of the PW-4/Dr.
(erroneously complainant. Ravinder Kumar
numbered as
Ex. PW3/A
instead of Ex.
PW 4/A)
Ex. PW6/A Copy of entry at Serial No. 1668 PW-6/ASI
in register no. 19, on 03.09.2011. Ramesh Chander
Ex. PW6/B Copy of entry at Serial No. 1670 PW-6/ASI
in register no. 19, on 04.09.2011. Ramesh Chander
Ex. PW8/A Rukka. PW-8/ASI Murli
Singh
Ex. PW9/A Complaint under Section 195 PW-9/ACP
Cr.P.C. (Retd.) Ram
Kumar
2.7. Markedly, subsequently, to the conclusion of
prosecution evidence on 23.09.2019, separate statements of the
appellant and the co-accused persons, in terms of the provisions
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under Section 281/313 Cr.P.C. were recorded on 22.10.2019,
wherein the appellant denied his involvement in the present case
and opted to lead defence evidence. Consequently, upon the
accused persons’ leading their defence/DW-1 Mohd. Akram, DE
was closed on 10.01.2020. Thereafter, the matter was taken
up/listed for arguments and on conclusion of arguments by/on
behalf of the State and the appellant as well as co-accused, the
Ld. Trial Court vide impugned judgment and order, while inter
alia holding the appellant guilty of the offence punishable under
Sections 186/332/353 IPC read with Section 34 IPC, sentenced
him in the manner, as noted hereinabove.
3. Ld. Counsel/Ld. Amicus Curiae for the appellant
outrightly contended that the impugned judgment and order are
contrary to the basic tenets of law and principles of criminal
jurisprudence. As per the Ld. Counsel, impugned judgment and
order were passed by the Ld. Trial Court on mere conjunctures,
surmises and in contravention of the settled principles of law. As
per the Ld. Counsel, the Ld. Trial Court, failed to consider the
real facts of the case as well as various improvements,
contradictions and discrepancies in the testimonies of various
prosecution witnesses, while erroneously reaching a finding of
appellant’s guilt. As per the Ld. Counsel, the Ld. Trial Court
further failed to appreciate that there are material contradictions
in the deposition of the witnesses which puts a serious doubt on
the case of the prosecution against the appellant.
Correspondingly, it was argued by the Ld. Counsel that the Ld.
Trial Court did not appreciate the material available on record,
especially the fact that no recovery has been effected either from
the appellant or from the co-accused in the instant case. In this
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regard, Ld. Counsel vehemently asserted that the said fact was
also admitted by the Ld. Trial Court that the alleged of recovery
of punch from the appellant, was doubtful. Ergo, under such
circumstances, as per the Ld. Counsel, Ld. Trial Court ought to
have consider the material aspect regarding recovery of punch
and to confer benefit of doubt in favour of the appellant. It was
further submitted that the Ld. Trial Court further failed to
appreciate that the entire story of the prosecution stands
demolished by the testimonies of various prosecution witnesses,
which have proved to be completely unreliable/unworthy of
credence, accentuating the frivolity in the case put forth against
the accused persons. Ergo, as per the Ld. Counsel, the impugned
judgment passed by the Ld. Trial Court in utter disregard of the
material brought forth and contrary to the settled judicial
precedents/law, making the same liable to be outrightly set aside.
3.1. Ld. Counsel/Ld. Amicus Curiae for the appellant
vehemently reiterated that the Ld. Trial Court wrongly convicted
the appellant, despite the fact that there were many/several
material and substantial contradiction, improvements and
variations in depositions of prosecution witnesses. Ld. Counsel
further submitted that even the material brought on record belies
the version put forth by the prosecution, in as much as despite the
assertion of the complainant that he was beaten by the accused
persons and that the complainant had bled owing to his injuries,
no evidence was brought on record to demonstrate the clothes of
the accused persons had any blood stains. Correspondingly, as
per the Ld. Counsel, while reaching a finding of accused persons’
guilt, the Ld. Trial Court further failed to consider that DD Nos.
2A and 6A were forged, bearing several manipulation as to date
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ABHISHEK GOYAL
Date:
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and month, creating significant doubt over the case put forth
against the accused persons. Correspondingly, it was submitted
by the Ld. Counsel that there are also several material
omissions/manipulations in the alleged MLC of the complainant,
with respect to the age of the victim, name of the relative as well
as the timings. It was further submitted that even on a plain
reading of said MLC, it is noted that the same does not bears the
signature and/or thumb impression of the victim/injured and
several spaces are left blank, creating significant doubt in the said
document. Ld. Counsel for the appellant further submitted that
the prosecution has not proved the alleged place of recovery of
the punch, besides the complainant gave a different description of
the punch, as a wooden device, in variance to the metal
device/punch produced before the Ld. Trial Court.
3.2. Ld. Counsel/Ld. Amicus Curiae for the appellant
further submitted that the Ld. Trial Court failed to appreciate that
in the instant case, there are numerous cavernous holes in the
case put forth by the prosecution and that the prosecution’s story
does not inspire any confidence. Further, as per the Ld. Counsel,
the Ld. Trial Court decided the matter in a mechanical manner
and in an utter haste, without appreciating the evidence/material
brough forth on record. It was argued by the Ld. Counsel, that
while reaching the finding of appellant’s guilt, the Ld. Trial
Court erred in not considering the settled law that where on the
basis of evidence on record, two views are possible, one
favouring an accused and other against him, the one favouring an
accused should always be accepted. Congruently, it was
reiterated that the deposition of prosecution witnesses lack
reliability, as the deposition of PWs are such a nature, as are
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ABHISHEK GOYAL
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uninspiring of confidence, entitling the appellant to be
granted/conferred with a benefit of doubt in the instant case.
Accordingly, in light of the foregoing, Ld. Counsel for the
appellant submitted that not only did the Ld. Trial Court fail to
consider the truth of circumstances and passed its
judgment/decision in haste, rather, the Ld. Trial Court also did
not properly appreciate/examine the facts of the present case,
wrongly holding the appellant guilty of the aforementioned
offence(s).
3.3. Even otherwise, it was submitted by Ld. Counsel/Ld.
Amicus Curiae for the appellant that the order of sentence was
also passed by the Ld. Trial Court, whimsically, while failing to
appreciate that the appellant was of young age at the relevant
point in time, as well as responsible for the look after and take
care of his family members. Ld. Counsel further vehemently
argued that the punishment/penalty must not be retributive in
nature, rather, humanizing, considering that sentencing the
appellant with severe sentence would subject his family members
to grave depravity. Further, as per the Ld. Counsel, substantial
time has lapsed since the incident in question and in case
relaxation/leniency is not afforded to the appellant, serious/severe
repercussions would ensue to their physical and mental well-
being. Consequently, the Ld. Counsel/Ld. Amicus Curiae for the
appellant inter alia prayed that the present appeal be allowed, and
the impugned judgment and order be set aside.
4. Per contra, Ld. Addl. PP for the State submitted that
the impugned judgment and order was passed by the Ld. Trial
Court after due appreciation of the facts and circumstances of the
case as well as in consonance with the settled judicial precedents.
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Ld. Addl. PP for the State further submitted that the testimonies
of various witnesses placed on record, including that of the
complainant/victim and other witnesses, unambiguously prove
the commission of the offences by the appellant and co-accused.
It was further contended by Ld. Addl. PP for the State that the
deposition/testimonies of the prosecution witnesses have not only
been consistent, rather, unblemished as well as lucidly point
towards the only inference of accused persons’ guilt. As per the
Ld. Addl. PP for the State, the facts and circumstances put forth
as well as the evidence placed on record, unerringly point out
towards the guilt of the accused persons and that no fault can be
attributed to the finding of the Ld. Trial Court, which is based on
proper appreciation of facts as well as law. Concomitantly, it was
submitted by the Ld. Addl. PP for the State that no ground of any
indulgence or relaxation even in the sentence granted to the
appellant or to even co-accused is made out. Accordingly, Ld.
Addl. PP for the State submitted that the present appeal deserves
to be dismissed at the outset, as grossly malicious and devoid of
merits.
5. The arguments of Ld. Ld. Counsel/Ld. Amicus
Curiae for the appellant as well as that of Ld. Addl. PP for the
State have been heard and the records, including the Trial Court
Record, written submissions filed by/on behalf of the appellant
and the other material, thoroughly perused.
6. At the outset, this Court deems it pertinent to
enunciate the scope of jurisdiction of this Court in an appeal
against conviction. In this regard, this Court it is pertinent to
outrightly make a reference to the decision of the Hon’ble
Supreme Court in Padam Singh v. State of U.P., (2000) 1 SCC
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621, wherein the Hon’ble Court, while delving into the ‘scope
and ambit’ of appellate court’s jurisdiction inter alia noted as
under;
“2. … It is the duty of an appellate court to look
into the evidence adduced in the case and arrive at an
independent conclusion as to whether the said
evidence can be relied upon or not and even if it can
be relied upon, then whether the prosecution can be
said to have been proved beyond reasonable doubt
on the said evidence. The credibility of a witness has
to be adjudged by the appellate court in drawing
inference from proved and admitted facts. It must be
remembered that the appellate court, like the trial
court, has to be satisfied affirmatively that the
prosecution case is substantially true and the guilt of
the accused has been proved beyond all reasonable
doubt as the presumption of innocence with which
the accused starts, continues right through until he is
held guilty by the final court of appeal and that
presumption is neither strengthened by an acquittal
nor weakened by a conviction in the trial court…”
(Emphasis supplied)
7. Correspondingly, the Hon’ble Apex Court in
Narendra Bhat v. State of Karnataka, (2009) 17 SCC 785,
iterated in respect of the foregoing as under;
“3. This Court has in a series of judgments held
that a court exercising appellate power must not only
consider questions of law but also questions of fact
and in doing so it must subject the evidence to a
critical scrutiny. The judgment of the High Court
must show that the Court really applied its mind to
the facts of the case as particularly when the offence
alleged is of a serious nature and may attract a heavy
punishment.”
(Emphasis supplied)
8. Quite evidently, from a conjoint reading of the
aforenoted judicial dictates it can be perspicuously deduced that
the jurisdiction of this Court in an appeal extends to
reappreciation of the entire material placed on record of the trial
court and to arrive at an independent conclusion as to whether the
said evidence can be relied upon or not. In fact, as aforenoted,
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court(s), while exercising appellate power is not required to
consider the question of law, rather, also question of facts to
affirmatively reach a conclusion of guilt or innocence of an
accused. In fact, it is trite law2 that non-re-appreciation of the
evidence on record in an appeal may affect the case of either the
prosecution or even the accused. Needless to reemphasize that
the appellate court is to be further wary of fact that presumption
of innocence of an accused, even extents until an accused is held
guilty by the final court of appeal and that such a presumption is
neither strengthened by an acquittal nor weakened by a
conviction in the trial court.
9. Ergo, being wary of the aforesaid principles,
however, before proceeding with the determination of the rival
contentions of the parties, it would be pertinent to reproduce the
relevant provisions under law/IPC, germane for the purpose of
present adjudication, as under;
“21. “Public servant”-The words “public servant”
denote a person falling under any of the descriptions
hereinafter following, namely:-***
*** *** ***
Eighth- Every officer of the Government whose
duty it is, as such officer, to prevent offences, to give
information of offences, to bring offenders to justice,
or to protect the public health, safety or convenience;
*** *** ***
34. 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 it were done by him
alone.
*** *** ***
186. Obstructing public servant in discharge of
public functions-Whoever voluntarily obstructs any
public servant in the discharge of his public
functions, shall be punished with imprisonment of
either description for a term which may extend to
2
State of Gujarat v. Bhalchandra Laxmishankar Dave, (2021) 2 SCC 735.
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three months, or with fine which may extend to five
hundred rupees, or with both.
*** *** ***
332. Voluntarily causing hurt to deter public
servant from his duty-Whoever voluntarily causes
hurt to any person being a public servant in the
discharge of his duty as such public servant, or with
intent to prevent or deter that person or any other
public servant from discharging his duty as such
public servant, or in consequence of anything done
or attempted to be done by that person in the lawful
discharge of his duty as such public servant, shall be
punished with imprisonment of either description for
a term which may extend to three years, or with fine,
or with both.
*** *** ***
353. Assault or criminal force to deter public
servant from discharge of his duty-Whoever assaults
or uses criminal force to any person being a public
servant in the execution of his duty as such public
servant, or with intent to prevent or deter that person
from discharging his duty as such public servant, or
in consequence of anything done or attempted to be
done by such person in the lawful discharge of his
duty as such public servant, shall be punished with
imprisonment of either description for a term which
may extend to two years, or with fine, or with
both…”
(Emphasis supplied)
10. Notably, from a perusal of the above, it is outrightly
observed that the provisions under Section 34 IPC recognize the
principle of vicarious liability3 in criminal jurisprudence,
attracting culpability against an individual for an act/offence, not
committed by him but by another person with whom he shared
the common intention. It is a settled law4 that Section 34 IPC
does not provide for a substantive offence, rather, envisages
culpability on the part of an accused only upon the proof of two
conditions, i.e., “(1) common intention, and (2) participation of
the accused in the commission of an offence.” Quite lucidly5,
3
Suresh v. State of U.P., (2001) 3 SCC 673.
4
Nagaraja v. State of Karnataka, (2008) 17 SCC 277.
5
Jasdeep Singh v. State of Punjab, (2022) 2 SCC 545.
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mere common intention on the part of any such accused, per se
may not attract the provisions under Section 34 IPC, sans an
action in furtherance thereof. Strikingly, the Hon’ble Supreme
Court in Ram Naresh v. State of U.P., (2024) 1 SCC 443, while
explicating the contours of the provisions under Section 34 IPC
inter alia remarked as under;
“7. A reading of Section 34 IPC reveals that
when a criminal act is done by several persons with a
common intention each of the person is liable for that
act as it has been done by him alone. Therefore,
where participation of the accused in a crime is
proved and the common intention is also established,
Section 34IPC would come into play. To attract
Section 34IPC, it is not necessary that there must be
a prior conspiracy or premeditated mind. The
common intention can be formed even in the course
of the incident i.e. during the occurrence of the
crime.
*** *** ***
11. Assistance has been taken of para 26 of the
decision of this Court in Krishnamurthy v. State of
Karnataka [Krishnamurthy v. State of Karnataka,
(2022) 7 SCC 521: (2022) 3 SCC (Cri) 192], which
is reproduced herein below: (SCC p. 537)
“26. Section 34 IPC makes a co-perpetrator,
who had participated in the offence, equally
liable on the principle of joint liability. For
Section 34 to apply there should be common
intention between the co-perpetrators, which
means that there should be community of purpose
and common design or prearranged plan.
However, this does not mean that co-perpetrators
should have engaged in any discussion,
agreement or valuation. For Section 34 to apply,
it is not necessary that the plan should be
prearranged or hatched for a considerable time
before the criminal act is performed. Common
intention can be formed just a minute before the
actual act happens. Common intention is
necessarily a psychological fact as it requires
prior meeting of minds. In such cases, direct
evidence normally will not be available and in
most cases, whether or not there exists a common
intention has to be determined by drawing
inference from the facts proved. This requires an
inquiry into the antecedents, conduct of the co-
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participants or perpetrators at the time and after
the occurrence. The manner in which the accused
arrived, mounted the attack, nature and type of
injuries inflicted, the weapon used, conduct or
acts of the co-assailants/perpetrators, object and
purpose behind the occurrence or the attack, etc.
are all relevant facts from which inference has to
be drawn to arrive at a conclusion whether or not
the ingredients of Section 34IPC are satisfied. We
must remember that Section 34IPC comes into
operation against the co-perpetrators because
they have not committed the principal or main
act, which is undertaken/performed or is
attributed to the main culprit or perpetrator.
Where an accused is the main or final perpetrator,
resort to Section 34IPC is not necessary as the
said perpetrator is himself individually liable for
having caused the injury/offence. A person is
liable for his own acts. Section 34 or the principle
of common intention is invoked to implicate and
fasten joint liability on other co-participants.”
12. A plain reading of the above paragraph of
Krishnamurthy case [Krishnamurthy v. State of
Karnataka, (2022) 7 SCC 521: (2022) 3 SCC (Cri)
192] reveals that for applying Section 34 IPC there
should be a common intention of all the co-accused
persons which means community of purpose and
common design. Common intention does not mean
that the co-accused persons should have engaged in
any discussion or agreement so as to prepare a plan
or hatch a conspiracy for committing the offence.
Common intention is a psychological fact and it can
be formed a minute before the actual happening of
the incidence or as stated earlier even during the
occurrence of the incidence.”
(Emphasis supplied)
11. Markedly, from the above, it is noted that in the
instances where the provisions under Section 34 IPC are
proposed to be invoked by the prosecution against accused
persons, it is not mandatory to demonstrate that there such
persons engaged in any prior discussion or agreement so as to
prepare a plan or hatch a conspiracy for committing the offence.
On the contrary, common intention may be formed at a spur of
moment, even during the commission/occurrence of incident,
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which is to be discernible from the facts of circumstances of each
case. Correspondingly, it is also a settled law that for proving
formation of common intention by accused persons, direct
evidence may seldomly be available, yet, in order to attract the
provisions under Section 34 IPC, prosecution is under a bounden
duty to prove that the participants had shared a common
intention6. Reference, in regard the foregoing is further made to
the decision in Virendra Singh v. State of M.P., (2010) 8 SCC
407, wherein the Hon’ble Supreme Court, elucidated as under;
“38. The vicarious or constructive liability under
Section 34 IPC can arise only when two conditions
stand fulfilled i.e. the mental element or the intention
to commit the criminal act conjointly with another or
others; and the other is the actual participation in one
form or the other in the commission of the crime.
39. The common intention postulates the
existence of a prearranged plan implying a prior
meeting of the minds. It is the intention to commit
the crime and the accused can be convicted only if
such an intention has been shared by all the accused.
Such a common intention should be anterior in point
of time to the commission of the crime, but may also
develop on the spot when such a crime is committed.
In most of the cases it is difficult to procure direct
evidence of such intention. In most of the cases, it
can be inferred from the acts or conduct of the
accused and other relevant circumstances. Therefore,
in inferring the common intention under Section 34
IPC, the evidence and documents on record acquire a
great significance and they have to be very carefully
scrutinised by the court. This is particularly
important in cases where evidence regarding
development of the common intention to commit the
offence graver than the one originally designed,
during execution of the original plan, should be clear
and cogent.
40. The dominant feature of Section 34 is the
element of intention and participation in action. This6
Hon’ble High Court of Kerala in Khalid B.A. v. State of Kerala, 2021 SCC Online Ker 11875 , in this regard,
remarked; “72. It is settled law that the common intention or the intention of the individual concerned in furtherance
of the common intention could be proved either from direct evidence or by inference from the acts or attending
circumstances of the case and conduct of the parties. Direct proof of common intention is seldom available and,
therefore, such intention can only be inferred from the circumstances appearing from the proved facts of the case
and the proved circumstances.” (Emphasis supplied)
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participation need not in all cases be by physical
presence. Common intention implies acting in
concert.
*** *** ***
42. Section 34 IPC does not create any distinct
offence, but it lays down the principle of constructive
liability. Section 34 IPC stipulates that the act must
have been done in furtherance of the common
intention. In order to incur joint liability for an
offence there must be a prearranged and
premeditated concert between the accused persons
for doing the act actually done, though there might
not be long interval between the act and the
premeditation and though the plan may be formed
suddenly. In order that Section 34 IPC may apply, it
is not necessary that the prosecution must prove that
the act was done by a particular or a specified
person. In fact, the section is intended to cover a case
where a number of persons act together and on the
facts of the case it is not possible for the prosecution
to prove as to which of the persons who acted
together actually committed the crime. Little or no
distinction exists between a charge for an offence
under a particular section and a charge under that
section read with Section 34.”
(Emphasis supplied)
12. In as much as the provisions under Section 186 IPC
and Section 353 IPC are concerned, it is noted that both the said
provisions are aimed to protect public servant and safeguard his
authority by prescribing punishment for causing obstruction to
discharge of his official duties. In this regard, law is trite7 that
while Section 186 IPC envisages culpability for mere obstruction
to a public servant in the discharge of his public function, in
contrast, the essence of Section 353 IPC is the causation of
assault or use of criminal force against the public servant, with an
intent to deter him from discharging his official duties. Reference
in this regard is made to the decision of the Hon’ble Apex Court
in Durgacharan Naik v. State of Orissa, 1966 SCC Online SC 58,
wherein the Hon’ble Court, while accentuating the difference
7
Mohd. Bin Saeed Bin Kileb v. State of Maharashtra, (2023) 1 HCC (Bom) 286.
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between the provisions under Section 186 IPC and Section 353
IPC inter alia noted, as under;
“5. *** It is true that most of the allegations in
this case upon which the charge under s. 353, Indian
Penal Code is based are the same as those
constituting the charge under s. 186, Indian Penal
Code but it cannot be ignored that Sections 186 and
353, Indian Penal Code relate to two distinct
offences and while the offence under the latter
section is a cognizable offence, the one under the
former section is not so. The ingredients of the two
offences are also distinct. Section 186, Indian Penal
Code is applicable to a case where the accused
voluntarily obstructs a public servant in the discharge
of his public functions but under s. 353, Indian Penal
Code the ingredient of assault or use of criminal
force while the public servant is doing his duty as
such is necessary. The quality of the two offences is
also different. Section 186 occurs in Ch. X of the
Indian Penal Code dealing with Contempts of the
lawful authority of public servants, while s. 353
occurs in Ch. XVI regarding the offences affecting
the human body. It is well-established that s. 195 of
the Criminal Procedure Code does not bar the trial of
an accused person for a distinct offence disclosed by
the same set of facts but which is not within the
ambit of that section…”
(Emphasis supplied)
13. Pertinent at this stage to make reference to the
decision of the Hon’ble Calcutta High Court in Kailash
Vijayvargiya v. State of W.B., 2024 SCC Online Cal 10451,
wherein the Hon’ble Court, explicated the ingredients of offence
under Section 332 IPC, as under;
“20. ***Ingredients of offence-The essential
ingredients of the offence under Sec. 332 are as
follows:
(1) Hurt was caused to a public servant;
(2) It was caused while such public servant was
acting in the discharge of his duty as such; or
(3) It was caused to prevent or deter him from
discharging his duty as such public servant; orC.A. No. 162/2020 Parvez Ahmed v. State (NCT of Delhi) Page 22 of 50
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(4) Such hurt was in consequence of anything
done or attempted to be done by such public servant
in lawful discharge of his duty.”…”
(Emphasis supplied)
14. Correspondingly, reference is made here to the
decision of the Hon’ble High Court of Tripura in Sundar Ali v.
State of Tripura, 2021 SCC Online Tri 184, wherein the Hon’ble
High Court, while accentuating the common ingredients of the
offences under Sections 332/335 IPC, expounded that while
causation of ‘hurt’ is essential to bring home, culpability under
Section 332 IPC, however, the same is not a mandate for
attracting culpability under Section 353 IPC. Relevant extracts of
the said dictate are reproduced as under;
“31. The common basic ingredients of Sections
332 and 353 are that in both cases the victim must be
a public servant and he must be in the execution of
his duty as such public servant at the time of the
commission of the offence to him. Punishment
provided for the commission of offence under
Section 332 is graver than the punishment provided
for offence under Section 353 IPC. For offence under
Section 332, the convict shall be punished with
imprisonment of either description for a term which
may extend 3 (three) years, or with fine or with both
whereas the imprisonment provided under Section
353 may be of either description for a term which
may extend to 2 (two) years or with fine or with
both. Commission of “Hurt” is essential to constitute
an offence punishable under Section 332 IPC
whereas under Section 353 IPC, it is not essential
that the hurt should be caused to the public servant.”
(Emphasis supplied)
15. Ergo, being mindful of the principles hereinunder
observed, this Court would now proceed with the appreciation of
the evidence and material placed on record to determine,
‘whether from the material placed on record, charge(s) under
Sections 186, 332 and 353 IPC read with Section 34 IPC can be
said to be proved beyond reasonable doubt against the appellant
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herein?’. In particular, to determine as to, ‘whether the Ld. Trial
Court committed any error/illegality in convicting as well as
sentencing the appellant for the offences under the said
provisions?’. Remarkably, in order to determine the said
issues/aspect, this Court deems it prudent to outrightly make a
reference to the testimony of the victim/complainant/PW-2/ASI
Shri Krishan, who inter alia deposed regarding the incident in
question as well as the role of the appellant. In this regard, it is
apposite to note that the complainant/PW-2 inter alia deposed
that on 02.09.2011 from 09:00 p.m. to 09:00 a.m. on 03.09.2011,
he/PW-2 was posted in emergency duty at PS Hauz Qazi and that
vide DD no. 2A, dated 03.09.2011 (Ex. PW2/A), he received a
call at around 12:30 a.m., that someone was playing D/J during
late night hours at Kucha Pandit. Consequently, as per PW-2,
he/PW-2 along with Ct. Rajesh proceeded for the spot, i.e.,
Kucha Pandit where, D/J was being played below H. No. 3107
and several public persons were gathered and making noise.
Further, as per PW-2, he requested the said persons not to make
noise and play D/J, whereupon D/J was stopped and the crowd
dispersed, except 03-04 boys, who continued to remain at the
spot. Congruently, PW-2 asserted that at that time, accused Javed
and Parvez reached at the spot, from inside the gali and asked
him/PW-2 as to the reason why he/PW-2 had stopped the D/J.
Thereafter, as per PW-2, the accused persons started to play D/J
again and they/accused persons, called two more persons from
inside the gali. PW-2 also avowed that when the accused persons
did not deter, he/PW-2 asked Ct. Rajesh to fetch a rickshaw so
that the D/J instrument may be removed from the spot.
Consequently, Ct. Rajesh left the spot, however, in theC.A. No. 162/2020 Parvez Ahmed v. State (NCT of Delhi) Page 24 of 50
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meanwhile, Javed and Parvez abused PW-2. Further, as per
PW-2, accused Javed held his/PW-2’s shirt and tore it, while
accused Parvez/appellant gave a fist blows on the complainant’s
nose and right eye with some wooden object, which the appellant
was wearing on his finger. Correspondingly, as per PW-2, the
oher two associates of the said accused persons also slapped and
gave kick blows to him/PW-2. It was further deposed by PW-2
that in the meantime, Ct. Rajesh returned to the spot and on
seeing the incident, he/Ct. Rajesh raised hue and cry, whereupon
the accused persons fled from the spot, while also removing D/J.
As per PW-2, he was taken to Hospital by Ct. Rajesh and
thereafter, HC Murli reached at the Hospital and recorded
his/PW-2’s statement (Ex. PW1/A). PW-2 further asserted that
after taking treatment, he returned to the police station and on
04.09.2011, he joined the investigation, which was handed over
to IO/SI Sakir Khan in the meanwhile. Consequently, as per
PW-2, he proceeded with the said IO, Ct. Prakash and Ct.
Narender to H. No. 3107, Kucha Pandit, where all the accused
persons, namely, Javed, Parvez and Naved were found and
arrested by the IO, at the instance of PW-2. PW-2 further
asserted that the punch in question was seized by the IO from
possession of the accused persons vide seizure memo Ex.
PW2/H. needless to mention that during the course of his
deposition, PW-2 not only proved the arrest memos and personal
search memos of the accused persons, rather, also the recovered
punch, seized clothes of the complainant/PW-2 and accused
Javed, as well as the accused persons. However, it is pertinent to
note that the complainant/PW-2 failed to correctly name the
accused persons before the Ld. Trial Court.
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16. Relevantly, upon being cross-examined by/on behalf
of the appellant (and co-accused), the complainant/PW-2,
asserted as under;
“XXXXXX Sh. ***, Ld. Counsel for all the
accused.
I had left the PS immediately after receiving the
DD entry No.2A on 03.09.2011. At the said time,
PS: Hauz Qazi was operated from its old building. I
had reached at the spot of incident from the PS on a
scooter. Constable Rajesh was also on the same
scooter with me. We had reached at the spot within 5-
7 minutes. There was a heavy crowd on the spot
when we reached there and about 150-200 persons
were present. I had told the IO that accused Javed
and Parvez had come from a gali on the spot after the
DJ was stopped.
I had told the IO that the accused persons, after
reaching at the spot, had asked me as to how I could
get the DJ stopped. It is wrong to suggest that I had
not told any such fact to the IO. It is correct that in
my statement Ex.PW1/A, no such fact is mentioned.
I had sent Constable Rajesh to get a rickshaw
after 10-15 minutes of our reaching at the spot. Ct.
Rajesh had returned at the spot after 10.15 minutes. I
had not told the IO that accused Javed and Parvez
had abused me. It is wrong to suggest that my shirt
was not torn from any spot on the said date. Accused
Parvez had hit me not with a wooden object but with
an iron object which he was wearing on his fingers.
It might be a typographical error in my previous
statement that accused Parvez had hit me with some
wooden object. It is wrong to suggest that I had not
suffered any such injuries which might have been
caused to me by any iron object. It is wrong to
suggest that I was under influence of liquor on the
relevant day. It is wrong to suggest that I had
suffered the injuries in question by falling on the
ground under the influence of liquor.
PCR officials had taken me to the hospital from
the spot. Vol. Ct. Rajesh was also with me. I do not
know who had taken my scooter from the spot after
the incident. No DD entry was recorded regarding
receiving of my scooter from the spot after the
incident. The IO had not recorded any statement of
any PCR officials in my presence. I do not remember
whether my signature or thumb impressions were
taken on the MLC in the hospital or not. I had notC.A. No. 162/2020 Parvez Ahmed v. State (NCT of Delhi) Page 26 of 50
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seen my MLC.
I do not know the name of the associate of the
accused persons who was also with them on the
relevant day. The IO had recorded my supplementary
statement when I had identified accused Naved.
It is wrong to suggest that I had made false
allegations against the accused persons to implicate
them in a criminal case.
I had visited the house of the accused persons on
04.09.2011 along with IO SI Sakir Khan. Two
constables were also with us. I had not entered into
their house. The punch was not recovered in my
presence. Vol. However, it was brought outside after
recovery and it was shown to me. I do not know
whether the IO had made any DD entry before
leaving for the house of the accused persons on
04.09.2011, however, I had not made any such DD
entry. We had reached at the house of the accused
persons at about 9:30 a.m. Public persons were
present in the locality and in the gali when we
reached there. No lady police officials was with us. I
do not know whether the IO had taken any
permission from Sr. Officers to conduct search at the
house of accused persons. The IO had not asked any
public persons in the locality in my presence to join
the proceedings of the search in the house of the
accused persons.
*** *** ***
I do not know whether a punch is available in
open market or not. It is wrong to suggest that no
punch was recovered as stated by me. It is wrong to
suggest that the said punch had been planted upon
the accused persons in the PS.
My shirt was seized in the hospital which was
damaged in the incident. I do not remember whether
there were any blood stains on my vest or not. It is
wrong to suggest that no blood had fallen on my shirt
and that the blood was arranged later on to create
false evidence. It is wrong to suggest that I myself
had broken the two upper buttons of my shirt to
create false evidence. It is wrong to suggest that no
damage was done by any of the accused to my shirt.
The IO had not seized clothes of any of the accused
in my presence. I do not remember the colour of the
clothes which the accused persons were wearing at
the time of incident in question.
It is wrong to suggest that none of the accused
had caused any injury to me. It is wrong to suggest
that false complaint was made against the accused
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persons as the accused persons had refused to pay
illegal protection money to me for running their
small shop of eatable items on the ground floor of
their house. It is wrong to suggest that I am deposing
falsely.”
(Emphasis supplied)
17. Here, it is further pertinent to refer to the testimony
of PW-1/Ct. Rajesh, who inter alia deposed before the Ld. Trial
Court that on 03.09.2012, he/PW-1 was posted as Constable at
PS Hauz Qazi and on that day, he along with ASI Srikrishan
went to Kucha Pandit, Gali Wakil Wali, Hauz Qazi vide PCR
call. Further, as per PW-1, when he reached at the said spot, D/J
was being played and around 10 (ten) to 12 (twelve) boys were
dancing on the same. As it was around 12.30 am, as per PW-1,
ASI Srikrishan told them that it was not the time for playing D/J,
whereupon the said boys switched off the D/J and went here and
there. Correspondingly, as per PW-1, ASI Srikrishan, then,
instructed him to fetch a rickshaw so that the D/J system could be
kept in the same and taken to the police station. Consequently,
PW-1 went outside to fetch rickshaw and when he returned,
he/PW-1 saw that blood was oozing out of the face of ASI
Srikrishan and two boys had surrounded him. PW-1 further
avowed that he raised hue and cry and on listening his/PW-1’s
voice, the said two boys ran away from the spot, who were
identified by PW-1 under his deposition as co-accused, Javed and
Naved, before the Ld. Trial Court. Concurrently, as per PW-1, he
made a call in the PS and requested that some more staff should
be sent at the spot. Thereafter, as per PW-1, around 3-4 police
officials reached at the spot and he/PW-1 took ASI Srikrishan to
the Hospital. PW-1 further proclaimed that HC Murli reached at
JPN Hospital who recorded the statement of ASI Srikrishan vide
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Ex. PW1/A. Thereafter, as per PW-1, rukka was handed over to
him/PW-1 by HC Murli and he/PW-1, consequently, got the
instant FIR, registered. Further, as per PW-1, directions were
given to him by the SHO that further investigation would be
conducted by SI Shakir Khan and that he/PW-1 should assist SI
Sakir Khan in the said investigation. Consequently, as per PW-1,
he returned to the spot with a copy FIR and original rukka, which
were handed over to HC Murli. Remarkably, during the course of
deposition of PW-1, it was asserted by Ld. Addl. PP for the State
that he/PW-1 was resiling from his earlier statement recorded
under Section 161 of Cr.P.C. and was consequently, cross
examined by Ld. Addl. PP for the State. Relevantly, upon being
so cross examined, PW-1 inter alia proclaimed as under;
“XXXXXXX by Ld. APP for the State.
It is correct that when I was asked by ASI
Srikrishan to fetch a rickshaw, at that time accused
Parvez along with his brother Javed again started
playing the DJ. It is also correct that the said accused
persons then called two more boys to the spot and all
the four of them had quarrelled with a ASI Srikrishan
and had also injured him. I know only two of them
i.e., Parvez and Javed. Both of them are present in
the Court today and correctly identified by the
witness. It is correct that HC Murli after coming at
the hospital obtained MLC of ASI Srikrishan and
after that recorded statement of ASI Srikrishan vide
Ex. PW1/A.
It is correct that I was taken to the spot by SI
Sakir Khan and at my instance site plan Ex. PW1/B
was prepared by him. It is correct that IO thereafter
conducted search of accused Parvez, Javed and his
associate, but none of them was found. It is correct
that HC Murli handed over the pulanda and sample
seal to IO in my presence and the same was seized
by him vide seizure memo Ex. PW1/C,
It is wrong to suggest that I am deposing falsely
with respect to identity of accused Naved as I have
been won over by the accused persons.”
(Emphasis supplied)
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18. Strikingly, during the course of his cross-
examination by/at the behest of the accused persons/appellant and
co-accused, PW-1, avowed as under;
“XXXXXX by Sh. ***, Ld. Counsel for accused
persons
It is correct that alleged quarrel had taken place in
my absence when I had gone to fetch a rickshaw.
It is wrong to suggest that accused were not
quarrelling with ASI Srikrishan when I came back to
spot. Vol. Accused Parvez and Javed were grappling
with ASI Srikrishan.
*** *** ***
I knew accused Parvez and Javed prior to the
incident. The accused Parvez and Javed were not
present in the group of 10 to 12 boys who were
playing the DJ when I along with ASI Srikrishan
reached there. None of the accused has been arrested
in my presence. SI Sakir Khan or any other police
official was not present at the hospital when I
reached back with copy of FIR.
It is wrong to suggest that I am deposing falsely.”
(Emphasis supplied)
19. Correspondingly, reference is here made to the
testimony of PW-4 (erroneously marked as PW-3)/Dr. Ravinder
Kumar, CMO, Lok Nayak Hospital who inter alia proclaimed
that he had seen the handwriting and signatures of Dr. Naveen,
Junior Resident, as he had worked under his/PW-4’s supervision,
where he/PW-4 was working as Chief Medical officer/CMO at
the relevant point in time. Further, as per PW-4, on 03.09.2011,
Dr. Naveen had prepared MLC 137347 of injured Shri Kishan
(Ex. PW3/A), bearing signatures of Dr. Naveen at point A and
that his/PW-4’s signatures on the said MLC at point B.
Pertinently, PW-4 was not cross-examined by/on behalf of the
accused persons, despite opportunity. Here, this Court deems it
further pertinent to make reference to the deposition of PW-3/HC
Raman Dass, who inter alia avowed that on 03.09.2011, he was
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posted at PS Hauz Qazi as Duty Officer/DO from 01:00 a.m. to
09:00 a.m. and on that day, at around 03:25 a.m. he/PW-3
received a rukka from Ct. Rajesh, sent by HC Murli. Further, as
per PW-3, on the basis of the said rukka, he registered the present
FIR (Ex. PW3/A) and thereafter, handed over a copy thereof to
SI Shakir. Correspondingly, PW-3 asserted that DD No. 6A,
dated 03.09.2011, PS Hauz Qazi; DD No. 7A, dated 03.09.2011
and DD No. 8A, dated 03.09.11, PS Hauz Qazi were all, recorded
by him/PW-3 and proved as Ex. PW3/C (Colly.). Needless to
mention that PW-3 was also not cross examined by/on behalf of
the accused persons, despite opportunity.
20. Germane for the purpose of the present discourse to
further refer to the deposition of PW-7/HC Rajesh Kumar, who
inter alia deposed before the Ld. Trial Court that on 03.09.2011,
he/PW-7 was posted at HC at PS Hauz Qazi, and working as
Duty Officer from 05:00 p.m. to 01:00 a.m. Further, as per PW-7,
in the intervening night of 02/03.09.2011 at around 12:30 a.m.,
he/PW-7 recorded DD No. 2A, which was proved as Ex. PW2/A.
Appositely, PW-7 was not cross examined by/on behalf of the
accused persons, despite opportunity. Correspondingly, reference
is made to the deposition of PW-9/Retd. ACP Ram Kumar, who
testified that on 03.09.2011, he/PW-9 was posted as ACP, Sub-
Division Kamla Market and on the said day, he made a complaint
under Section 195 of Cr.P.C., after receiving complaint from ASI
Sri Krishan, which was proved as Ex. PW9/A. Pertinently, PW-9
was also not cross examined by/on behalf of the accused persons,
despite opportunity.
21. Conspicuously, in light of the foregoing, this Court
would now proceed with the evaluation of the material placed on
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record, in light of the arguments addressed by/on behalf of the
appellant and by State. However, before proceeding further, this
Court deems it pertinent to deal with the contention of Ld.
Counsel/Ld. Amicus Curiae for the appellant inter alia to the
effect that the conviction of the appellant could not have been
premised on the deposition of the complainant/PW-2 in the
instant case, without any corroboration. However, in this regard,
this Court deems it pertinent to outrightly note that the superior
courts have persistently avowed8 that there is no legal hurdle in
convicting a person on the testimony of a single/sole
eyewitness/victim, if his version is clear and reliable, for the
principle of law/rule of evidence is that the evidence has to be
weighed and not counted. Relevantly, in this regard, reference is
made to the decision of the Hon’ble Supreme Court in Sunil
Kumar v. State (Govt. of NCT of Delhi), (2003) 11 SCC 367,
wherein the Hon’ble Court in unambiguous terms, remarked as
under;
“9. *** This Court held that as a general rule the
court can and may act on the testimony of a single
witness provided he is wholly reliable. There is no
legal impediment in convicting a person on the sole
testimony of a single witness. That is the logic of
Section 134 of the Indian Evidence Act, 1872 (in
short “the Evidence Act“). But, if there are doubts
about the testimony the courts will insist on
corroboration. It is for the court to act upon the
testimony of witnesses. It is not the number, the
quantity, but the quality that is material. The time-
honoured principle is that evidence has to be
weighed and not counted. On this principle stands the
edifice of Section 134 of the Evidence Act. The test is
whether the evidence has a ring of truth, is cogent,
credible and trustworthy, or otherwise…”
(Emphasis supplied)
8
Kusti Mallaiah v. State of A.P., (2013) 12 SCC 680.
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22. Correspondingly, reference is made to the decision
of the Hon’ble Apex Court in Balu Sudam Khalde v. State of
Maharashtra, (2023) 13 SCC 365, wherein the Hon’ble Court
enunciated the principles to be kept in mind, while appreciating
the evidence of an injured eyewitness, as under;
“26. When the evidence of an injured eyewitness
is to be appreciated, the undernoted legal principles
enunciated by the courts are required to be kept in
mind:
26.1. The presence of an injured eyewitness at the
time and place of the occurrence cannot be doubted
unless there are material contradictions in his
deposition.
26.2. Unless, it is otherwise established by the
evidence, it must be believed that an injured witness
would not allow the real culprits to escape and
falsely implicate the accused.
26.3. The evidence of injured witness has greater
evidentiary value and unless compelling reasons
exist, their statements are not to be discarded lightly.
26.4. The evidence of injured witness cannot be
doubted on account of some embellishment in
natural conduct or minor contradictions.
26.5. If there be any exaggeration or immaterial
embellishments in the evidence of an injured
witness, then such contradiction, exaggeration or
embellishment should be discarded from the
evidence of injured, but not the whole evidence.
26.6. The broad substratum of the prosecution
version must be taken into consideration and
discrepancies which normally creep due to loss of
memory with passage of time should be discarded.
27. In assessing the value of the evidence of the
eyewitnesses, two principal considerations are
whether, in the circumstances of the case, it is
possible to believe their presence at the scene of
occurrence or in such situations as would make it
possible for them to witness the facts deposed to by
them and secondly, whether there is anything
inherently improbable or unreliable in their evidence.
In respect of both these considerations,
circumstances either elicited from those witnesses
themselves or established by other evidence tending
to improbabilise their presence or to discredit the
veracity of their statements, will have a bearing upon
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the value which a court would attach to their
evidence. Although in cases where the plea of the
accused is a mere denial, the evidence of the
prosecution witnesses has to be examined on its own
merits, where the accused raise a definite plea or put
forward a positive case which is inconsistent with
that of the prosecution, the nature of such plea or
case and the probabilities in respect of it will also
have to be taken into account while assessing the
value of the prosecution evidence.”
(Emphasis supplied)
23. Here, this Court deems it apposite to further note
that the law is no longer res integra9 that conviction of an accused
can be premised solely on the evidence of police officials, if the
same is found to be reliable and trustworthy. Reference in this
regard is made to the decision of the Hon’ble Apex Court in
Girja Prasad v. State of M.P., (2007) 7 SCC 625, wherein the
Hon’ble Court, expressed similar sentimentalities, in the
following terms;
“25. In our judgment, the above proposition does
not lay down correct law on the point. It is well
settled that credibility of witness has to be tested on
the touchstone of truthfulness and trustworthiness. It
is quite possible that in a given case, a court of law
may not base conviction solely on the evidence of
the complainant or a police official but it is not the
law that police witnesses should not be relied upon
and their evidence cannot be accepted unless it is
corroborated in material particulars by other
independent evidence. The presumption that every
person acts honestly applies as much in favour of a
police official as any other person. No infirmity
attaches to the testimony of police officials merely
because they belong to police force. There is no rule
of law which lays down that no conviction can be
recorded on the testimony of police officials even if
such evidence is otherwise reliable and trustworthy.
The rule of prudence may require more careful
scrutiny of their evidence. But, if the court is
convinced that what was stated by a witness has a
ring of truth, conviction can be based on such
evidence.”
9
Sathyan v. State of Kerala, (2023) 13 SCC 767.
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(Emphasis supplied)
24. Correspondingly, this Court deems it further
apposite here to note that mere because prosecution opts not to
produce other public witnesses, asserted to be present or would
have been present at the time of commission of incident, cannot,
in the considered opinion of this Court, be always read against
the prosecution in light of the decision of the Hon’ble Supreme
Court in Rajesh Yadav v. State of U.P., (2022) 12 SCC 200,
wherein the Hon’ble Court, unambiguously observed;
“34. A mere non-examination of the witness per
se will not vitiate the case of the prosecution. It
depends upon the quality and not the quantity of the
witnesses and its importance. If the court is satisfied
with the explanation given by the prosecution along
with the adequacy of the materials sufficient enough
to proceed with the trial and convict the accused,
there cannot be any prejudice. Similarly, if the court
is of the view that the evidence is not screened and
could well be produced by the other side in support
of its case, no adverse inference can be drawn. Onus
is on the part of the party who alleges that a witness
has not been produced deliberately to prove it.”
(Emphasis supplied)
25. Pertinently, Ld. Counsel/Ld. Amicus Curiae for the
appellant has further strenuously contended that the Ld. Trial
Court did not consider the contradictions, variations and/or
improvements, in the testimonies of various prosecution
witnesses while pronouncing the impugned judgment. However,
in order to appreciate the said contention, this Court deems it
apposite to iterate and explore the judicial precedents governing
the law of contradictions in the testimony of the witness. In
particular, in this regard, this Court deems it apt to outrightly
make a reference to the decision of the Hon’ble Supreme Court
in State of U.P. v. M.K. Anthony, (1985) 1 SCC 505, wherein the
Hon’ble Court inter alia observed as under;
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“10. While appreciating the evidence of a
witness, the approach must be whether the evidence
of the witness read as a whole appears to have a ring
of truth. Once that impression is formed, it is
undoubtedly necessary for the court to scrutinise the
evidence more particularly keeping in view the
deficiencies, drawbacks and infirmities pointed out
in the evidence as a whole and evaluate them to find
out whether it is against the general tenor of the
evidence given by the witness and whether the
earlier evaluation of the evidence is shaken as to
render it unworthy of belief. Minor discrepancies on
trivial matters not touching the core of the case, hyper-
technical approach by taking sentences torn out of
context here or there from the evidence, attaching
importance to some technical error committed by the
investigating officer not going to the root of the matter
would not ordinarily permit rejection of the evidence
as a whole. If the court before whom the witness gives
evidence had the opportunity to form the opinion
about the general tenor of evidence given by the
witness, the appellate court which had not this
benefit will have to attach due weight to the
appreciation of evidence by the trial court and unless
there are reasons weighty and formidable it would not
be proper to reject the evidence on the ground of
minor variations or infirmities in the matter of trivial
details. Even honest and truthful witnesses may differ
in some details unrelated to the main incident
because power of observation, retention and
reproduction differ with individuals. Cross-
examination is an unequal duel between a rustic and
refined lawyer. Having examined the evidence of this
witness, a friend and well-wisher of the family
carefully giving due weight to the comments made by
the learned counsel for the respondent and the
reasons assigned to by the High Court for rejecting his
evidence simultaneously keeping in view the
appreciation of the evidence of this witness by the trial
court, we have no hesitation in holding that the High
Court was in error in rejecting the testimony of
witness Nair whose evidence appears to us
trustworthy and credible.”
(Emphasis supplied)
26. Similarly, in this regard, the Hon’ble Apex Court in
Rammi v. State of M.P., (1999) 8 SCC 649, noted as under;
“24. When an eyewitness is examined at length it
is quite possible for him to make some discrepancies.
No true witness can possibly escape from making
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some discrepant details. Perhaps an untrue witness
who is well tutored can successfully make his
testimony totally non-discrepant. But courts should
bear in mind that it is only when discrepancies in the
evidence of a witness are so incompatible with the
credibility of his version that the court is justified in
jettisoning his evidence. But too serious a view to be
adopted on mere variations falling in the narration of
an incident (either as between the evidence of two
witnesses or as between two statements of the same
witness) is an unrealistic approach for judicial
scrutiny.”
(Emphasis supplied)
27. Evidently, from the conspectus of the above, it is
clearly deduced that minor discrepancies, which do not go into
the root of the matter and shake the basic version of the
witnesses, cannot be permitted to be annexed with any undue
weight. In fact, it is trite law10, the discrepancies which do not
shake the basic version of the prosecution and those which
emanate due to normal errors of perception or observation should
not be given importance and must necessarily be discarded. The
rationale behind the same is quite obvious, as elucidated by the
Hon’ble Supreme Court in State of U.P. v. Naresh, (2011) 4 SCC
324, inter alia recording as under;
“30. In all criminal cases, normal discrepancies
are bound to occur in the depositions of witnesses
due to normal errors of observation, namely, errors
of memory due to lapse of time or due to mental
disposition such as shock and horror at the time of
occurrence. Where the omissions amount to a
contradiction, creating a serious doubt about the
truthfulness of the witness and other witnesses also
make material improvement while deposing in the
court, such evidence cannot be safe to rely upon.
However, minor contradictions, inconsistencies,
embellishments or improvements on trivial matters
which do not affect the core of the prosecution case,
should not be made a ground on which the evidence
can be rejected in its entirety. The court has to form
its opinion about the credibility of the witness and10
Appabhai v. State of Gujarat, 1988 Supp SCC 241
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record a finding as to whether his deposition inspires
confidence.
“9. Exaggerations per se do not render the
evidence brittle. But it can be one of the factors
to test credibility of the prosecution version,
when the entire evidence is put in a crucible for
being tested on the touchstone of credibility.”…
Therefore, mere marginal variations in the
statements of a witness cannot be dubbed as
improvements as the same may be elaborations of
the statement made by the witness earlier. The
omissions which amount to contradictions in
material particulars i.e. go to the root of the
case/materially affect the trial or core of the
prosecution’s case, render the testimony of the
witness liable to be discredited…”
(Emphasis supplied)
28. Ergo, to recapitulate, in order to disregard the
testimony of a witness, it is imperative that the same is replete
with material improvements, contradictions and variation. In
contrast, law provides for due concession to marginal variations
and normal discrepancies in the statement/testimony of a witness,
which are bound to occur due to normal errors of observation,
namely, errors of memory due to lapse of time or due to mental
disposition such as shock and horror at the time of occurrence.
Congruently, this Court further records that in as much as the
contention of Ld. Counsel for the appellant pertaining to hostility
of PW-1 is concerned, it is apposite to note that the superior
courts have persistently avowed11 that the evidence of a hostile
witness cannot be discarded in its entirety, rather, relevant parts
thereof, which are admissible in law, can be used by the
prosecution or the defence. Reference in this regard is made to
the decision in C. Muniappan & Ors. v. State of Tamil Nadu,
(2010) 9 SCC 567, wherein the Hon’ble Apex Court, enunciated
the law as under;
11
Selvamani v. The State rep. by the Inspector of Police, MANU/SC/0403/2024.
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“82. In State of U.P. v. Ramesh Prasad Misra,
(1996) 10 SCC 360] this Court held that (at SCC p.
363, para 7) evidence of a hostile witness would not
be totally rejected if spoken in favour of the
prosecution or the accused but required to be
subjected to close scrutiny and that portion of the
evidence which is consistent with the case of the
prosecution or defence can be relied upon. A similar
view has been reiterated by this Court in Balu Sonba
Shinde v. State of Maharashtra, (2002) 7 SCC 543],
Gagan Kanojia v. State of Punjab, (2006) 13 SCC
516], Radha Mohan Singh v. State of U.P.,(2006) 2
SCC 450], Sarvesh Narain Shukla v. Daroga Singh,
(2007) 13 SCC 360] and Subbu Singh v. State,
(2009) 6 SCC 462.
83. Thus, the law can be summarised to the effect
that the evidence of a hostile witness cannot be
discarded as a whole, and relevant parts thereof
which are admissible in law, can be used by the
prosecution or the defence.
*** *** ***
85. It is settled proposition of law that even if
there are some omissions, contradictions and
discrepancies, the entire evidence cannot be
disregarded. After exercising care and caution and
sifting through the evidence to separate truth from
untruth, exaggeration and improvements, the court
comes to a conclusion as to whether the residuary
evidence is sufficient to convict the accused. Thus,
an undue importance should not be attached to
omissions, contradictions and discrepancies which
do not go to the heart of the matter and shake the
basic version of the prosecution’s witness. As the
mental abilities of a human being cannot be expected
to be attuned to absorb all the details of the incident,
minor discrepancies are bound to occur in the
statements of witnesses. Vide Sohrab v. State of
M.P., (1972) 3 SCC 751, State of U.P. v. M.K.
Anthony, (1985) 1 SCC 505, Bharwada Bhoginbhai
Hirjibhai v. State of Gujarat, (1983) 3 SCC 217,
State of Rajasthan v. Om Prakash, (2007) 12 SCC
381, Prithu v. State of H.P., (2009) 11 SCC 588,
State of U.P. v. Santosh Kumar, (2009) 9 SCC 626
and State v. Saravanan, (2008) 17 SCC 587.”
(Emphasis supplied)
29. Consequently, being wary of the foregoing, when
the testimonies of prosecution witnesses in the instant case are
analysed, this Court finds itself difficult to be convinced with the
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ABHISHEK GOYAL
GOYAL Date:
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contention of the Ld. Counsel/Ld. Amicus Curiae for the
appellant that there are any material contradictions to belie the
testimonies of the said witnesses. On the contrary, it is seen from
a conscientious scrutiny of the testimony of the
complainant/PW-2 that he consistently deposed of the incident in
question, as well as inter alia of the involvement of the appellant.
In particular, on a scrupulous analysis of the material brought on
record, this Court is in concurrence with the finding of the Ld.
Trial Court that the presence of PW-1/Ct. Rajesh and the
complainant at the spot at the relevant point in time, stands duly
proved not only from the testimonies of the said witnesses,
rather, also from the record of DD No. 2A (Ex. PW2/A), proved
by PW-7/HC Rajesh Kumar, who inter alia deposed that in the
intervening night of 02/03.09.2011 at around 12:30 a.m.,
he/PW-7 recorded DD No. 2A, regarding the incident of playing
of D/J in Gali Vakil Wali, Kucha Pandit, Chawri Bazar, as well
as of marking of the said DD to the complainant/ASI Shri
Krishan and Ct. Rajesh, who proceeded for the spot.
Correspondingly, this Court finds itself further in concurrence
with the finding of the Ld. Trial Court that the complaint under
Section 195 Cr.P.C. was proved by PW-9/Retd. ACP Ram
Kumar, as Ex. PW9/A in respect of the incident that transpired
with the complainant. Consequently, from the said fact, not only
is the factum of the complainant acting in the capacity of public
servant at the relevant point in time proved, rather, as aforenoted,
it is established that the complainant/PW-2 and PW-1 had
proceeded to the spot in capacity as public servant to execute
public duty, i.e., maintain law and order by ensuring that the
noise of D/J was curtailed at late night hours, which was causingC.A. No. 162/2020 Parvez Ahmed v. State (NCT of Delhi) Page 40 of 50
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public nuisance. Here, it is pertinent to further note that the
complainant attributed specific roles qua the accused persons,
including the appellant, besides explicitly proclaimed that the
appellant had inflicted injury on his person/on the
complainant/PW-2, while he was stopped by the
complainant/PW-2 from creating nuisance. Concomitantly, PW-2
asserted that co-accused Javed, held his/complainant’s shirt and
tore the same, while their other associates continued to inflict
kicks and punches on the complainant. Pertinently, the factum of
complainant’s sustaining injury on the said date, stand duly
corroborated from his MLC No. 137347 (Ex. PW3/A), duly
proved by PW-4/Dr. Ravinder Kumar. Needless to reiterate that
the complainant’s MLC specifically records that he/PW-2 had
inter alia sustained, “…CLW over Lt. eyebrow 1*0.5 cm…
swelling below Lt. eye… pain & swelling nose… bleeding from
nose… pain & swelling occipital region…”, which injuries were
subsequently opined to be, “…simple from clinical point of
view…”.
30. Congruently, even this Court unambiguously records
that the complainant’s MLC (Ex. PW3/A) specifically chronicles
his alleged history of, “…physical assault at around 12:40 a.m.
near Kuncha Pandit on 3/9/11 as told by Pt…”. Concomitantly,
DD No. 6A and Ex. PW7A (Ex. PW3/A (Colly.)), record that the
complainant had be assaulted by some boys and that the Javed
and Parvez had assaulted the complainant, respectively. Clearly,
the incident in question was promptly recorded in the instant
case, and in the said documents, it was specifically noted that the
complainant was attacked/injured by some boys, specifically
named under DD No. 7A as the appellant and co-accused Javed.
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Needless to mention here that under the MLC of the victim (Ex.
PW3/A), name of Ct. Rajesh had been recorded as the person,
who brought the complainant to the Hospital, corroborating the
version put forth by the said witnesses. Conspicuously, this Court
further records that the complainant duly identified the accused
persons as the perpetrators of offence, though, may have
confused their names during his/PW-2’s deposition. In fact, in
this regard, this Court further finds itself, in alignment with the
finding of the Ld. Trial Court that mere failure of the
witness/complainant/PW-2 to identify the accused persons,
including the appellant by his name would not efface the intrinsic
value of such identification. Needless in this regard to record that
not only PW-1 correctly identified the co-accused and the
appellant during the course of his deposition, rather, even in the
considered opinion of this Court, the mistake on the part of the
complainant in identifying the accused/appellant with wrong
name is inconsequential, as even if a complainant is not aware
about the names of the accused persons he can identify the
accused as the culprits.
31. In as much as the defence put forth by the appellant
is concerned, in the considered opinion of this Court, same has
not been duly established by the appellant/accused persons from
either the material brought on record or even from the deposition
of DW-1/Mohd. Akram. In this regard, it is specifically noted
that it is the defence of the accused persons that the complainant
was under influence of liquor on the relevant day and that he had
suffered injuries, due to a fall on the ground, whilst being under
the influence of liquor. However, in this regard, it is noted that
nowhere under the MLC of the complainant/victim, is there any
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mention of the complainant being under any intoxication or
influence of alcohol. Needless to mention that PW-4/Dr.
Ravinder Kumar was neither cross-examined on either the aspect
of injuries sustained by the complainant or the reason thereof or
that the complainant being under any intoxication, as contended
by the appellant/accused persons. Needless to further mention
that even the suggestion to the said aspects is even wanting under
the cross examination of PW-4. In fact, as aforenoted, the
accused persons, opted not to cross examine PW-4, despite being
afforded an opportunity.
32. Markedly, it is further the defence of the accused
persons that the complainant had falsely implicated the appellant
and co-accused in the present case as they refused to pay illegal
protection money to the complainant for running their small shop
of eatable items on the ground floor of their house. Significantly,
in order to prove the said aspect, the accused persons/including
the appellant, adduced DW-1/Mohd. Akram as a witness in their
defence. However, upon a contentious perusal of the deposition
of DW-1, it is noted that nowhere under his deposition, DW-1
deposed that he had actually seen such demand of illegal
gratification by the complainant to the accused persons, rather, it
was proclaimed by DW-1 that on asking from the staff of the
Hotel, he was apprised that the police official used to regularly
take money every month and that an altercation had ensued on
the same. Needless to further mention that DW-1 specifically
deposed that he had reached at the spot, only on seeing the crowd
and that only upon inquires being made by him, he/DW-1 was
apprised of the said fact. Quite evidently, DW-1 neither
witnessed the incident of ‘so called’ altercation or that of demand
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of money by the police officials from the accused persons,
clearly, making the evidence of DW-1, a mere hearsay.
Appositely, upon being cross examined by/on behalf of the State,
DW-1 specifically avowed that he could not recall the time, in
evening when he had reached at the spot or even recollect the
names of the persons, from whom he had made such enquiry. In
fact, DW-1 affirmed that he had made no complaint against any
police official regarding the said act. Ergo, under such facts and
circumstances, this Court finds itself difficult to be convinced
that the appellant has been able to successfully prove his defence
or cast any dent in the case put forth against him by the
prosecution. Needless to further observe that during the course of
recording of his/appellant’s statement under Section 281/313
Cr.P.C., the appellant further inter alia asserted that he was not
present at his home when the incident had taken place and that he
was present at the house of his wife at that point in time.
However, despite such assertion, the appellant failed to adduce
any witness/evidence, to corroborate his said version. Further, it
is noted that though, the appellant has vehemently asserted that
the DD entries bearing nos. 2A, 6A, 7A and 8A were
fabricated/concocted, however, no cross examination and/or
suggestion is forthcoming on the part of the accused persons
either to PW-3/HC Raman Dass or PW-7/HC Rajesh Kumar to
the said effect, except such general assertion.
33. Remarkably, as aforenoted, Ld. Counsel/Ld. Amicus
Curiae for the appellant has strenuously contended that the
recovery of punch in the instant case is doubtful and that the
benefit of the same must enure in favour of the appellant.
However, in this regard, this Court concurs with the finding of
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ABHISHEK GOYAL
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the Ld. Trial Court that the complainant consistently deposed of
him being hit by the appellant on his face and nose, which fact is
also corroborated from the injuries sustained by the complainant
under his MLC (Ex. PW3/A) and the deposition of PW-1 and
PW-2, who consistently deposed that the complainant had
sustained injuries and bled, consequent thereto. Needless in this
regard to note that law is trite12 that mere non-recovery of the
weapon of crime is not fatal to the prosecution case, if there are
direct reliable witnesses. In so far as the fulfilment/establishment
of ingredients of offences under Section 186, 332 and 353 IPC
read with Section 34 IPC against the appellant is concerned, this
Court further coincides with the finding of the Ld. Trial Court,
under the impugned judgment in as much as the
complainant/PW-2, whilst acting in discharge of his public
duty/functions, as duly proved by the deposition of various
witnesses and the complaint (Ex. PW9/A), was obstructed by the
accused persons and attacked as well as assaulted by the accused
persons. Needless to reiterate that in the said process, the
complainant sustained various injuries on his person, which were
duly corroborated under his MLC (Ex. PW3/A). Needless to
further mention that the deposition of the complainant/victim has
not only been consistent, rather, credit worthy and truthful.
Further, as aforenoted, the accused persons have failed to
attribute any motive on the complainant and other witnesses to
falsely implicate them/appellant in the present case.
34. Conclusively, in conspectus of the above and inter
alia keeping in view consistent testimonies of the
complainant/PW-2/ASI Shri Krishan and other witnesses, i.e.,
12
Gulab v. State of U.P., (2022) 12 SCC 677.
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ABHISHEK GOYAL
GOYAL Date:
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PW-3/HC Raman Dass, PW-4/Dr. Ravinder Kumar, PW-7/HC
Rajesh Kumar, and PW-9/ACP (Retd.) Ram Kumar, as duly
corroborated with the deposition of PW-1/Ct. Rajesh as well as
considering the other material on record, including DD Nos. 2A,
6A, 7A and 8A, arrest and personal search memos of the accused
persons, etc., the only conclusion which can be unambiguously
arrived at in the facts and circumstances brought forth is that the
prosecution has been able to prove its case ‘beyond reasonable
doubt’ against the appellant for the offences under Section 186,
332 and 353 IPC read with Section 34 IPC. On the contrary, the
appellant has failed to raise a probable defence/defence by
‘preponderance of probabilities’ in his favour and/or to belie the
case put forth by the prosecution for the reasons, hereinunder,
observed.
35. In so far as the quantum of sentence to be awarded to
the appellant is concerned, this Court deems it pertinent to
outrightly observe that though the penal provisions under law,
prescribe for penalties to be imposed for offences, however, do
not lay down any set guidelines for the same. Nonetheless, the
persistent avowals of the superior courts13 have laid down certain
guidelines, which may be considered by the courts, when
confronted with conundrum regarding such determination.
Undoubtedly, the inclination of courts is usually tilted towards
the reformation and rehabilitation of the accused, however, at the
same time, court have incessantly cautioned that sentencing
should be adequate as undue sympathy, by imposing inadequate
sentence may result into causing more harm to the justice system.
In this regard, reference is made to the decision of the Hon’ble
13
‘X’ v. State of Maharashtra, (2019) 7 SCC 1; and Sunil Dutt Sharma v. State (Govt. of NCT of Delhi), (2014) 4
SCC 375.
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Supreme Court in Hazara Singh v. Raj Kumar, (2013) 9 SCC
516, wherein the Hon’ble Court observed as under;
“17. …We also reiterate that undue sympathy to
impose inadequate sentence would do more harm to
the justice system to undermine the public
confidence in the efficacy of law. It is the duty of
every court to award proper sentence having regard
to the nature of the offence and the manner in which
it was executed or committed. The court must not
only keep in view the rights of the victim of the
crime but also the society at large while considering
the imposition of appropriate punishment.”
(Emphasis supplied)
36. Concurrently, the Hon’ble Supreme Court in Raju
Jagdish Paswan v. State of Maharashtra, (2019) 16 SCC 380,
while iterating the objective behind sentencing enunciated as
under;
“9. …Punishment is the just desert of an
offender. The society punishes not because it has the
moral right to give offenders what they deserve, but
also because punishment will yield social useful
consequences: the protection of society by
incapacitating criminals, the rehabilitation of past
offenders, or the deterrence of potential
wrongdoers…The purposes of criminal sentencing
have traditionally been said to be retribution,
deterrence and rehabilitation. To these there may
now perhaps be added: incapacitation (i.e. putting it
out of the power of the offender to commit further
offences) and the maintenance of public
confidence…”
(Emphasis supplied)
37. Apposite to further observe that besides the
tenacious affirmations of the superior courts, inclined towards the
grant of just and appropriate sentence, there has also been a
cautionary word14 that mere long pendency of case is no ground
to award lesser sentence. However, this Court is equally
cognizant that the superior courts have incessantly asserted that
14
State of M.P. v. Ghanshyam Singh, (2003) 8 SCC 13.
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ABHISHEK GOYAL
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while determining the quantum of sentence, courts cannot be
oblivious to the mitigating circumstances, which are required to
be accorded due weightage, alongside aggravating factors. In fact,
law is settled15 that the discretion in the matter of sentence is to be
exercised by court(s), after balancing all the aggravating and
mitigating circumstances of the crime. Further, as per the superior
courts16, a balance sheet of aggravating and mitigating
circumstances has to be drawn up at such a stage and while doing
so, “the mitigating circumstances have to be accorded full
weightage and a just balance has to be struck between the
aggravating and the mitigating circumstances before the option is
exercised.” In this regard, reference is made to the decision of the
Hon’ble Apex Court in Vasanta Sampat Dupare v. State of
Maharashtra, (2017) 6 SCC 631, wherein the Hon’ble Court while
delving into the aspect of award of sentence/sentencing,
enunciated as under;
“20. It is thus well settled, “the court would
consider the cumulative effect of both the aspects
(namely, aggravating factors as well as mitigating
circumstances) and it may not be very appropriate
for the Court to decide the most significant aspect of
sentencing policy with reference to one of the classes
completely ignoring other classes under other heads
and it is the primary duty of the Court to balance the
two”. Further, “it is always preferred not to fetter the
judicial discretion by attempting to make excessive
enumeration, in one way or another; and that both
aspects, namely, aggravating and mitigating
circumstances have to be given their respective
weightage and that the Court has to strike the
balance between the two and see towards which side
the scale/balance of justice tilts”. With these
principles in mind, we now consider the present
review petition.”‘
(Emphasis supplied)15
Bachan Singh v. State of Punjab, (1980) 2 SCC 684
16
Machhi Singh v. State of Punjab, (1983) 3 SCC 470
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38. Ergo, being cognizant of the aforenoted judicial
dictates and considering that the co-accused persons were already
sentenced by the Ld. Trial Court for the period undergone; the
appellant has already undergone a period of 19 (nineteen) days of
imprisonment in the present case; the appellant is presently of 48
(forty eight) years of age, asserted to be liable to look after and/or
take care of his family members; further, as per the recent nominal
roll of the appellant dated 15.04.2026, he is not found to be
convicted in any other offence, as well as further being cognizant
of the fact that the appellant has not been not demonstrated to be
involved in any other case at present, ends of justice, in the
considered opinion of this Court, would be met, if the substantive
sentence of the appellant is confined to the period already
undergone.
39. Conclusively, in light of the foregoing discussion,
the present appeal disposed of as partly allowed, is so far as
while upholding the judgment dated 14.07.2020 passed by Ld.
ACMM-02, Central, Tis Hazari Court, Delhi in case bearing;
‘State v. Javed & Ors., CIS No. 298773/2016′, arising out of FIR
No. 73/2011, PS. Hauz Qazi, convicting, the appellant for the
offences under Sections 186, 332 and 353 IPC read with Section
34 IPC, the impugned order of sentence/order dated 16.07.2020,
passed by the Ld. Trial Court is modified to the extent of period
already undergone, in so far as the substantive period of sentence
is concerned. However, the appellant would be liable to pay a fine
to a tune of Rs. 25,000/- (Rupees Twenty Five Thousand only), to
be released as compensation to the victim/complainant, ASI Shri
Krishan, and in default of payment of which, the appellant would
be liable to undergo simple imprisonment for a period of 03
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(three) months. As requested, fine be deposited by the appellant
before Ld. Trial Court within a period of fifteen days from today.
40. Trial Court Record be sent back along with a copy of
this order/judgment, for record and compliance. Copy of this
judgment be also given dasti to the appellant. Further,
compliance of the decision of the Hon’ble Supreme Court in
Suhas Chakma v. Union of India, (2024) 16 SCC 1 has been
carried out.
41. Appeal file be consigned to record room after due
compliance. Digitally signed
by ABHISHEK
ABHISHEK GOYAL
Date:
GOYAL 2026.04.17
15:00:27
+0530
Announced in the open Court (Abhishek Goyal)
on 17.04.2026. ASJ-03, Central District,
Tis Hazari Courts, Delhi
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