Delhi District Court
Asif Mohd vs State on 14 August, 2018
IN THE COURT OF SURESH KUMAR GUPTA
ADDITIONAL SESSIONS JUDGE04
& SPECIAL JUDGE (NDPS) SOUTH EAST: SAKET
COURTS: NEW DELHI
CA No. 61 of 2018
Asif Mohd
S/o Ashfaq Ahmad
R/o H. No. 360, Main Road
Zakir Nagar, Jamia Nagar
New Delhi .........Appellant
Vs.
State
(Govt. of NCT of Delhi) .......... Respondent
Instituted on : 08.02.2018
Argued on : 04.08.2018
Decided on : 14.08.2018
JUDGMENT:
1 The appellant has impugned the judgment dated 07.12.2017 vide which he is convicted u/s 186/341 IPC and order on sentence dated 06.01.2018 vide which he is sentenced to Asif Mohd. Vs. State - CA No. 61 of 2018 1 of 19 undergo SI for 10 days with fine of Rs. 500/ u/s 186 IPC and SI for 15 days with fine of Rs.500/ u/s 341 IPC and in default of payment of fine to undergo SI for 4 days. Both the sentences shall run concurrently. Benefit u/s 428 Cr.PC is granted to him. 2 The appeal is filed on the grounds that Ld. Trial court has not appreciated the facts and evidence on record as there are number of material contradictions and infirmities in the testimony of prosecution witnesses. The relevant questions were not put to him u/s 313 Cr.PC. There is no compliance of Section 195 Cr.PC in as much as no complaint u/s 200 Cr.PC has been filed by the concerned official or his superior official in the court. Mere filing of charge sheet does not mean that Court has taken the cognizance u/s 186 IPC. He has been falsely implicated as his name does not find reflection even in DD No. 19A. Hence, this appeal.
3 Notice of the appeal is given to the prosecution.
Asif Mohd. Vs. State - CA No. 61 of 2018 2 of 19 4 The facts of the case are like this: 5 Complainant O. P. Ahlawat, gave a statement to the
police with the allegations that he is Deputy Director, LM, SEZ, DDA Vikas Sadan. On 24.10.2007, at 04:30 PM, he alongwith H. Rajesh Parsad,IAS (Commisioner LM), Anil Kumar Goyal, AE, Ajit Singh, JE, Mahinder Singh AE, Mohd. Adil and staff has come to Shahin Bagh, Jasola and reached at Khasra No. 49, Village Jasola, New Delhi. Appellant, ExCounsellor and owner of River Valley School, came there and started abusing the commissioner and other staff members. The appellant was bent upon to beat them. The appellant started threatening them and forcibly stopped their government vehicles. The appellant has called a crowd and told that there cannot be demolition at any cost. The appellant has prevented them from discharging their official duties. The appellant has threatened them. The crowd has restrained them from performing their official duties. They have Asif Mohd. Vs. State - CA No. 61 of 2018 3 of 19 somehow managed to leave the place. His statement was recorded. Usual investigation was carried out. Charge sheet u/s 186/353/341/506 IPC was filed against him.
6 Copy of the charge sheet and documents were supplied to the appellant. Charge u/s 186/341/353/506 (II) IPC was framed against the appellant to which he pleaded not guilty and claimed trial.
7 Prosecution examined 9 witnesses. Prosecution evidence was closed. Appellant was examined u/s 313 CrPC. His defence is that the present case has been made out against him due to political rivalry. Sh. Parvez Hashmi, MLA has written letters to DDA against him as he used to contest election against him. He was not present on the spot. He was at his residence which is at a distance of 5 KMs from the place of incident. However, no defence evidence has been led.
8 Ld. Trial Court after hearing Ld. APP, Ld. Defence Asif Mohd. Vs. State - CA No. 61 of 2018 4 of 19
Counsel and perusing evidence on record convicted and sentenced the appellant u/s 186/341 IPC by placing reliance on the evidence on record.
9 PW1 O, P. Ahlawat is the complainant. He stated that on 24.10.2007, he was Deputy Director, LM, SEZ, DDA, New Delhi. On that day, he alongwith H. Rajesh Parsad, IAS (Commissioner LM), Anil Kumar Goyal, AE, Ajit Singh, JE, Mahinder Singh AE and Mohd. Adil has reached at Khasra No. 49, Village Jasola, New Delhi for routine inspection. Appellant alongwith 200 - 250 persons came there. He did not personally identify the appellant. The crowd told that appellant is present. The appellant has misbehaved with them. There was a verbal quarrel with the appellant as appellant did not want demolition. They went to PS and complaint Ex.PW1/A was given. He has failed to idetify the appellant. He was declared hostile and cross examined at length by the prosecution. During cross examination, Asif Mohd. Vs. State - CA No. 61 of 2018 5 of 19 he admitted that appellant has threatened not to demolish the unauthorized structure on Khasra No. 409. The four government vehicles have come to standstill due to crowd. The appellant has created obstacle in discharge of the official duty. He is not sure but the person present in the Court resembles the appellant. During cross examination by Ld. Defence Counsel the suggestion is denied that appellant has been falsely implicated due to political pressure and rivalry with Sh. Parvez Hashmi or appellant has nothing to do with the incident or appellant was not present on the spot.
10 PW2 Anil Kumar Goyal stated that he does not remember the exact date bu the incident pertains to August - September, 2007. He was AE, Land Management Wing, SEZ. He alongwith his Commissioner, Deputy Director and other staff members was going for demolition of unauthorized construction to Shahin Bagh. They reached at the corner of Kalandi Kunj Asif Mohd. Vs. State - CA No. 61 of 2018 6 of 19 where mob appeared and raised anti DDA Slogans. He was directed by Commissioner and Deputy Director to lodge an FIR against unknown persons who were members of the mob. He was declared hostile and cross examined by the prosecution. During cross examination he admitted that date of incident is 24.10.2007. The suggestion is denied that appellant, i.e. owner of River Valley School, has used abusive language against them or called the public persons on the spot or he must have the information about the identity or name of the Counsellor of the area as he was posted there. The suggestion is denied that appellant was excounsellor. He has never met the appellant during his tenure. He has failed to identify the appellant. He is confronted with his statement markA recorded by the police u/s 161 Cr.PC. No cross examination was done by the appellant though opportunity was given.
11 PW3 Ajit Singh, JE stated that on 24.10.2007 he Asif Mohd. Vs. State - CA No. 61 of 2018 7 of 19
alongwith O. P. Ahlawat, Anil Kumar Goyal, Mahender Singh, H. Rajesh Parsad and other staff members has gone to Khasra No. 409, Shahin Bagh for land inspection. The instructions were received from the Commissioner to remove the jhuggies from Khasra No. 409. Mr. H. Rajesh Parsad, Commissioner alongwith Staff members has gone to the other part of same Khasra No. through River Valley School. He went there on hearing the noise. A mob has gathered there. He was informed that appellant alongwith crowd has quarreled with the commissioner. The commissioner was made to sit in the car when he reached there. The commissioner was removed from the spot. The people were raising slogans. They were not led or persuaded by anyone to raise slogans. He does not know the appellant. He was declared and cross examined at length by the prosecution. During cross examination he stated that appellant was not present on the spot. The appellant did not motivate the public to raise the slogans and Asif Mohd. Vs. State - CA No. 61 of 2018 8 of 19 shout at public officials. He has seen the appellant for the first time in the court. During cross examination by Ld. Defence counse he stated that he does not know which part of Khasra No. 409 is in possession of DDA.
12 PW4 Mahender Singh, AE stated that he alongwith PW1, 2, 3, Commissioner and other staff members has gone to Shahin Bagh near River Valley School. A group of people was already present there. Another group of persons has also reached there. The school Management has cleared the area adjacent to River Valley School. The school management officials and persons from the crowd have entered into a verbal altercation with the commissioner. He left the spot as some of the officials went to the PS to lodge the report. He was declared hostile and cross examined by the prosecution. During cross examination he stated that he cannot tell the name of any specific person who was a part of the crowd. The appellant was a part of crowd who was Asif Mohd. Vs. State - CA No. 61 of 2018 9 of 19 present there. The suggestion is denied that appellant has entered into an altercation with commissioner and other staff members and attempted to cause hurt to them. He admitted that crowd did not allow them to visit the area. The suggestion is denied that the appellant has threatened him and other officials on the spot. He admitted that crowd, including the appellant in particular, who was leading the crowd did not allow them to perform their duty. During cross examination by Ld. Defence Counsel the suggestion is denied that the appellant was not leading the crowd or he did not obstruct the officials or he has been falsely implicated. The appellant has not abused him.
13 PW6 H. Rajesh Parsad stated that on 24.10.2007 he was Commissioner, Land Management DDA,New Delhi. He alongwith PW1 to 4, Mohd. Adil and other staff members went for routine inspection at Khasra No. 409, Village Jasola. The appellant and local passersby gathered and shouted loudly. They Asif Mohd. Vs. State - CA No. 61 of 2018 10 of 19 have obstructed the government vehicles. The crowd was saying that there will be no demolition. They will face dire consequences in case there is demolition. Appellant has abused in filthy language and shouted at top of his voice. The crowd alongwith appellant stood in front of the Car and prevented them from moving. They could leave the area with great difficulty and reached at PS, Sarita Vihar where complaint Ex.PW6/A was given. The complaint u/s 195 Cr.PC was given by him as DDA Staff was under his administrative control. The complaint is Ex.PW6/B. He has identified the appellant. During cross examination he stated that 2530 persons have gathered on the shouting of appellant. The suggestion is denied that appellant was not present at the spot who has been falsely implicated at the instance of political rivals.
14 PW8 Paramjeet, Deputy Director stated that letter dated 08.07.2008 has been issued by Sh. H. Rajesh Parsad. The Asif Mohd. Vs. State - CA No. 61 of 2018 11 of 19 letter is Ex.PW8/A. 15 PW9 HC Manoj Kumar has proved recording of DD No. 18A Ex.PW9/A & DD No. 19A Ex.PW9/B. 16 PW7 SI Manohar Lal has proved FIR Ex.PW7/A and endorsement Ex.PW7/B on the rukka.
17 PW5 Inspector D. K. Tejwan stated that on 24.10.2007 O. P. Ahlawat alongwith H. Rajesh Parsad and other officials came to PS and gave a complaint Ex.PW1/A to him in the PS on which rukka Ex.PW5/A was prepared and given to DO for registration of FIR. He alongwith Ct. Ajay and O.P. Ahlawat came to spot and pointing out memo Ex.PW5/B was prepared. The appellant was identified. The investigation was completed and charge sheet was filed without arrest. During cross examination he stated that complainant duly accompanied by 67 persons came at 55.30pm at PS. He has inquired from the public persons but nobody has agreed to join as a witness. They have all Asif Mohd. Vs. State - CA No. 61 of 2018 12 of 19 left the place without disclosing their names and addresses. 18 Ld. Sr. Counsel for the appellant submitted that complaint u/s 195 CrPC was filed but no cognizance was taken on that complaint. He further submitted that summoning order nowhere shows that summons have been issued after considering the complaint u/s 195 CrPC. He further submitted that offence u/s 186 IPC is not made out, if cognizance is not taken on the complaint u/s 195 CrPC. He further submitted that there is no evidence on record to show that appellant has restrained the govt. officials or crowd has restraint the govt. officials at the instance of the appellant. He further submitted that PWs No.1, 2, 3 & 4 have not supported the case of the prosecution. He further submitted that PW6 has nowhere deposed that he was sitting in a particular car or vehicle bearing particular registration number was not allowed to move by the appellant and the crowd. He further submitted that there is no evidence on record to connect Asif Mohd. Vs. State - CA No. 61 of 2018 13 of 19 the appellant with commission of crime.
19 Ld. Addl.PP for the State submitted that there is complaint u/s 195 CrPC of Commissioner, DDA which fulfills the requirement of taking cognizance u/s186 IPC. She further submitted that testimony of hostile witnesses cannotbe altogether wiped out from the record as they have also supported the case of prosecution to some extent. She further submitted that PW6 has fully corroborated the case of the prosecution as such Ld. Trial Court has rightly convicted and sentenced the appellant. 20 Heard and perused the record.
21 The perusal of the record shows that PW6 H. Rajesh Prasad was the Commissioner, DDA and Head of Land Management Department at the time of incident. PW14 were subordinate and under the administrative control of PW6. PW6 has given a complaint Ex. PW6/A to SHO, PS, Sarita Vihar to lodge the FIR against the appellant. The perusal of the record Asif Mohd. Vs. State - CA No. 61 of 2018 14 of 19 further shows that a written statement Ex. PW1/A was given to the police by PW1 O P Ahlawat which led to the registration of the FIR. FIR was not registered on the complaint of PW6. 22 PW6 has given a complaint dated 10.12.2008 Ex. PW6/B u/s 195 CrPC. The perusal of the record nowhere shows that complaint u/s 195 CrPC was perused at the time of taking the cognizance meaning thereby that no cognizance was taken on the complaint u/s 195 CrPC. In the absence of cognizance being taken on the complaint u/s 195 CrPC, the prosecution is bad in the eyes of law u/s 186 IPC. Reliance is placed on Crl. Revision Petition No. 20/11, titled as Sunil Vs. State, decided on 3.1.2012 by our own Hon'ble High Court.
23 The appellant has also been convicted u/s 341 IPC. PW1 is the complainant. He has nowhere deposed that appellant has wrongfully restrained him and other members of the team. He was declared hostile and crossexamined by the prosecution but Asif Mohd. Vs. State - CA No. 61 of 2018 15 of 19 prosecution has failed to bring out any material from his testimony.
24 PW2 is also the member of the team. He did not support the case of prosecution. He was declared hostile and crossexamined at length by the prosecution but the prosecution has failed to bring out any incriminating material from his testimony qua wrongful restraint.
25 PW3 is also the member of team. His testimony shows that PW6 was made to sit in the car before he reached there. The people were raising slogans but they were not persuaded by anyone. He was also declared hostile and cross examined at length by the prosecution but again the prosecution has failed to bring any material on record that appellant has wrongfully restrained the team members including him. 26 PW4 is another member of the team. He was also declared hostile and crossexamined at length by the prosecution.
Asif Mohd. Vs. State - CA No. 61 of 2018 16 of 19 His crossexamination shows that appellant was a part of the crowd. The appellant was leading the crowd and crowd did not allow them to perform the duty. He has nowhere deposed that they were wrongfully restrained by the appellant or appellant exhorted the crowd to restraint the members of the team from carrying out the inspection.
27 PW6 is Commissioner. His testimony shows that appellant alongwith crowd stood in front of the car and prevented him from moving further. His testimony does not inspire confidence. He has not disclosed the number of the car in which he was allegedly sitting at that time. The driver of the car has not been examined. PW14 have nowhere deposed that appellant alongwith crowd has restrained the car of PW6 from moving further. He is not supported by PW14 who were with him at that time. There is no corroboration to the testimony of PW6. In view of this fact, the testimony of PW6 that appellant alongwith crowd Asif Mohd. Vs. State - CA No. 61 of 2018 17 of 19 stood in front of his car and prevented him from moving further does not inspire confidence and as such his testimony to this effect does not inspire confidence.
28 There is no evidence on record to show that appellant or the crowd at the instance of the appellant has wrongfully restrained PW6 or any other official accompanying him. 29 The appellant has been acquitted for the offence u/s 353/506 (II) IPC. This court has not scanned the evidence to this effect as it is for the State Govt. to challenge the acquittal of the appellant.
30 There is an infirmity in the judgment dated 7.12.2017 passed by ld. Trial Court. The judgment is set aside as a result order on sentence dated 6.1.2018 is also set aside. 31 The appellant is acquitted of the offence charged. 32 The appeal filed by the appellant is disposed off.
33 TCR alongwith copy of judgment copy of the
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judgment be sent to the Ld. Trial Court.
34 Appeal file be consigned to record room.
announced in the
open court on
14th August, 2018
(SURESH KUMAR GUPTA)
Addl. Sessions Judge04 & Spl. Judge (NDPS)
South East, Saket Courts,New Delhi
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