Delhi District Court
State vs Jahur Ahmed And Others on 4 March, 2020
IN THE COURT OF ADDITIONAL
CHIEF METROPOLITAN MAGISTRATEI
ROUSE AVENUE DISTRICT COURTS, NEW DELHI
PRESIDING OFFICER : SH. VISHAL PAHUJA.
F.I.R. No: 519/16
PS Saket
U/s 352/109 IPC
State vs Jahur Ahmed and others
JUDGMENT
Case no. : 36/2019
Date of commission of offence : 08.07.2016
Date of institution of the case : 14.05.2018
Name of the complainant : Shabana Khan
Name of accused persons and : 1. Jahur Ahmed,
addresses s/o Late Sh. Nawabuddin,
r/o H.no. 243, 244 Hauz
Rani Malviya Nagar,
New Delhi110017.
2. Kalua,
s/o Sh. Samiruddin @
Shammi, r/o H.no. 243,
244 Hauz Rani Malviya
Nagar, New Delhi110017.
3. Latif, s/o Sh. Mohd.
Sabir, r/o H.no. 254, Hauz
Rani Malviya Nagar, New
Delhi110017.
FIR No. 519/16 Page 1/20
State vs Jahur Ahmed and others
4. Somnath Bharti,
s/o Sh. Sita Ram Bharti,
r/o 26, Malviya Nagar, New
Delhi110017.
Offence complained of or proved : U/s 352/109 IPC
Plea of the accused persons : Pleaded not guilty
Final Order : Acquitted
Date on which reserved for : 04.03.2020
Judgment
Date of announcing of Judgment : 04.03.2020
****************************************************************************** BRIEF STATEMENT OF THE FACTS FOR DECISION:
1. The accused persons namely Jahur Ahmed, Kalua, Latif and Somnath Bharti have been prosecuted in this case for commission of offences under section 352/109 of the Indian Penal Code.
2. Brief facts of the case on which the present FIR was registered are as follows: The case of the prosecution is that on 08.07.2016 at around 7.09 pm, a call was received via DD no. 39 regarding some quarrel with the lady from mobile number 9350225777. On receiving this DD sub inspector Pancham along with assistant sub inspector Susheela departed to follow up the call where caller Shaheen Khan told that some children of NGO Saheli wanted to meet with Chief Minister FIR No. 519/16 Page 2/20 State vs Jahur Ahmed and others Sh. Arvind Kejriwal, but due to security reasons they were not allowed to meet him. Due to this deprivation, some sort of heated arguments ensued and they just called 100 number. In investigation it was found that those ladies again tried to went on the stage after breaching the security line. They were stopped to go there due to security reasons. This led to a minor scuffle when women security staff did not allow them to breach the security cordon. The complainant was asked to give her written complaint but she refused to give. On the same day after some time, Firoz khan the father of the complainant again called 100 number regarding the same incident vide DD No 43A with mobile no. 9810461735 who stated to IO Durga Das that his daughter is not well, so she will give her written statement next day positively. As per his version, SI Durga Das asked him to get the statement recorded at his place, but he refused to do the same and said they will give the written complaint in police station. On 09.07.2016, complainant Ms. Shabana Khan, President Saheli NGO came to the police station Saket and gave her written complaint. It was alleged in the complaint that she is the director of social organisation, named Saheli in Hauj Rani. On 08.07.2016 at Eidgah Park in Hauz Rani near her house, Eid Milan was organized by local MLA Somnath in which Delhi's Chief Minister Mr. Arvind Kejriwal was to come as a chief guest. For this program, the public was invited by way of announcement through the loudspeaker in the area. She also went to attend the program along with other female volunteers and the children who were receiving FIR No. 519/16 Page 3/20 State vs Jahur Ahmed and others education under the "Beti Bachao Beti Padhao" campaign. When the chief minister was leaving after the programme, she tried to meet him along with the children. At that time the volunteers of AAP party tried to manhandle and abused her and behaved inappropriately with them at the instigation of accused Somnath Bharati. When she complained to Sh. Somnath Bharti about the same, he ignored it. On the complaint of the complainant Shabana Khan the present FIR was registered on 19.07.2016 u/s 354/509/109/323/34 IPC.
3. After conclusion of the investigation, the police filed the charge sheet on 14.05.2018 u/s 354/509/109/323/34 IPC. Ld. Predecessor of this court took cognizance and summoned all the accused persons. After the appearance of the accused persons compliance of section 207 Cr.P.C. was ensured. Ld. Predecessor of this Court after hearing the arguments on charge vide order dated 10.10.2018 held that the accused Somnath Bharti is liable to be tried for the offence u/s 109 IPC and accused persons namely Kalua, Latiff and Jahur Ahmed are liable to be tried for the offence u/s 352 IPC.
In view of the said order a formal charge was served upon the accused persons on 26.10.2018 seperately to which they pleaded not guilty and claimed trial.
FIR No. 519/16 Page 4/20State vs Jahur Ahmed and others PROSECUTION EVIDENCE:
4. To prove its case, the prosecution has examined 8 (eight) witnesses.
5. PW1 HC Rambir Kumar was the duty officer, who exhibited the copy of the FIR as Ex. PW1/B, endorsement on the original tehrir as Ex. PW1/A and certificate u/s 65B of Indian Evidence Act as Ex. PW1/C. This witness was cross examined on behalf of all the accused persons.
6. PW2 Smt. Shabana Khan is the complainant in the present matter. She deposed that incident is of 08.07.2016. On that day, accused Somnath Bharti had organized a program of Id Milan at Idgah Park, Hauz Rani, New Delhi and the information of this program was communicated in that area by a loud speaker. PW2 who run an NGO took the children to the event for welcoming the Chief Minister of Delhi. As per PW2 accused Somnath Bharti was also present there who was requested to arrange meeting of children with the Chief Minister. On this accused Somnath Bharti assured the father of PW2 for the same. It is deposed that when the Chief Minister came, PW2 met him and went to the place of program with him. The children accompanying the complainant started raising slogans to attract the attention of the Chief Minister regarding dowry. It is stated that the accused Latif started intimidating PW2 from FIR No. 519/16 Page 5/20 State vs Jahur Ahmed and others some distance. When the Chief Minister was leaving that place, she again tried to meet him but was surrounded by the workers of accused and they did not allowed them to meet the Chief Minister and during this PW2 suffer injury on her leg. Accused Kalua, Latif and Jahur had abused her and when she complained to accused Somnath Bharti, he laughed at it. It is stated that she also called at 100 number but her complaint was not written. Thereafter, she gave a typed complaint to the police on 09.07.2016, same is Ex. PW2/A. This witness was also cross examined on behalf of the accused persons.
7. PW3 Ms. Shaheen Khan deposed on the same lines as that of PW2 Ms. Shabana Khan. This witness correctly identified the accused persons. This witness was also cross examined on behalf of accused persons.
8. PW4 W/Ct. Manju, Belt no. 2321/SD deposed that on 08.07.2016 she along with W/Ct. Vijeta from PS Fatehpur Beri were present on duty at the program Eid Milan at Hauz Rani deployed at VIP Entry Gate near barricade. As per PW4 at about 05:45 PM, the Chief Minister came at the spot. On that day, one girl namely Shabana aged about 2526 years and one Shaheen along with other girl children in 2022 number were trying to enter from VIP Entry Gate, however, PW4 along with W/Ct. Manju and W/Ct. Vijeta did FIR No. 519/16 Page 6/20 State vs Jahur Ahmed and others not allow them to enter from the said VIP Entry Gate and asked them to enter from another gate. It is stated that when Chief Minister started leaving the stage after his speech, the complainant and other girls tried to meet the Chief Minister but she along with the other security staff stopped the complainant and other girl children due to security reasons. This witness was cross examined on behalf of the accused persons.
9. PW5 W/Ct. Manju, PIS no. 28091159, CW Cell, Saket deposed on the same lines as that of PW4 W/Ct. Manju, Belt no. 2321/SD. This witness was cross examined on behalf of the accused persons.
10. PW6 SI Durgadas deposed that in the month of June, 2016 he was posted as SI at PS Saket. On that day, on receipt of DD no. 43A he contacted the caller namely Firoz. It is stated that Firoz informed him that his daughter was not well and not in a position to give her statement. Firoz informed that her daughter will give statement later on. This witness was cross examined on behalf of the accused persons.
11. PW7 SI Pancham Kumar deposed that on 08.07.2016 he was on emergency duty from 08:00 AM to 08:00 PM. On receipt of DD no. 39A regarding quarrel at Idgah Park, near Max Hospital, Saket, FIR No. 519/16 Page 7/20 State vs Jahur Ahmed and others he along with W/ASI Sushila went on the spot where they met the caller Ms. Shabana. It is stated that she informed that she worked for NGO and came there along with children of her NGO to meet Hon'ble Chief Minister. Ms. Shabana further told that the security personals who were deputed for the security of Hon'ble Chief Minister stopped her to meet him. It is further deposed that Ms. Shabana also informed that during the same time, there was scuffle with security personals. PW7 asked the complainant to give written complaint upon which she refused and told PW7 that she will come to police station later on and give her complaint. During investigation, statement of PW7 was recorded by the IO. This witness was cross examined on behalf of the accused persons.
12. PW8 W/SI Nitesh deposed that on 19.07.2016 she was posted as Sub Inspector at police station Saket. On that day, she received a typed complaint Ex.PW2/A of complainant Shabana Khan from Reader of the police station. Accordingly, she made endorsement Ex.PW1/A on the said complaint. On 22.07.2016, she got recorded the statements of complainant Shabana Khan and Shaheen Khan under section 164 Cr.PC by moving an application Ex.PW8/A before the court. She also recorded her statement u/s 161 Cr.PC. This witness exhibited on record the site plan Ex.PW8/B. She interrogated the accused persons, recorded the statement of witnesses u/s 161 Cr.PC and filed the chargesheet of this case.
FIR No. 519/16 Page 8/20State vs Jahur Ahmed and others During investigation, accused Somnath Bharti handed over a pen drive and DVD Ex.PW3/X, six photographs Ex.PW8/C1 to C6 alongwith a letter Ex.PW8/D and certificate 65 B of the Indian Evidence Act Ex.PW8/E, which she seized and placed on record. After completion of investigation she filed the chargesheet in the Court. This witness was also cross examined on behalf of the accused persons.
13. No other material witness left to be examined, thus PE was closed on 19.08.2019.
STATEMENT OF ACCUSED PERSONS U/S 313 Cr.P.C.
14. Thereafter, statement of accused persons U/s 313 Cr.P.C. were recorded in which all incriminating circumstances appearing in evidence against accused persons were put to them to which they stated that they have been falsely implicated by the complainants having politically motivated. The present case has been filed in order to harass the accused persons and the allegations levelled against them are completely false and baseless. It is stated that they have been falsely implicated in this case. Accused persons opted to lead defence evidence.
FIR No. 519/16 Page 9/20State vs Jahur Ahmed and others DEFENCE EVIDENCE
15. Accused persons examined Mohd. Salman as DW1. DW1 deposed that on 08.07.2016, there was a function organized on the event of Eid Gah Milan Samaroh at Hauz Rani Park. Ms. Shabana and her sister Ms. Shaheen along with their father Mr. Firoz Khan were standing at the entry gate and were trying to forcibly enter the venue. MLA Somnath Bharti came and assured them that he will arrange a meeting with the Chief Guest Mr. Kejriwal. He also arranged a photography session of the aforesaid persons with Mr. Kejriwal. Despite that they insisted to approach the stage where the chief guest along with other dignitaries were sitting and during this Delhi Police and the security staff of the Chief Minister tried to stop them and Ms. Shabana and her sister Ms. Shaheen entered into scuffle with them. Neither Mr. Somnath Bharti nor any of the persons present at the spot misbehaved with the aforesaid ladies or their father nor any kind of molestation or harassment was caused to them at the hands of the accused persons. This witness was cross examined by Ld. APP for state.
ARGUMENTS:
16. Ld. APP for state has argued that on a combined reading of prosecution witnesses testimony, offence U/s 352 IPC and u/s 109 IPC are proved against the accused persons beyond any doubt. It is FIR No. 519/16 Page 10/20 State vs Jahur Ahmed and others addressed by Ld. APP for state that all the star witnesses of the prosecution have duly proved the case against the accused persons and their testimony remained unrebutted on the material aspects, thereby, proving the guilt of the accused persons.
17. On the other hand, Ld. counsel for the accused persons have argued that there are material discrepancies and contradictions in the testimony of star witnesses of the prosecution. It is further argued that none of the prosecution witness has supported the case of the prosecution and there is no cogent evidence led on record to prove the guilt of the accused persons. It is further argued that there is no independent public witness in the present case apart from the complainant herself and their testimony being that of interested witness cannot be relied upon. Arguing further Ld. counsel submitted that prosecution has failed to prove the guilt of accused persons beyond reasonable doubt due to tainted testimony of PWs, hence accused persons are entitled to be acquitted. In support of her argument, Ld. Counsel for the accused persons relied upon the judgments i.e. Jeevendran v. Ayyanna Nayanar and others, Crl. A. NO. 108 of 1998 and M. Munuswamy v. State, Crl. A.No. 279 of 2008.
FIR No. 519/16 Page 11/20State vs Jahur Ahmed and others FINDINGS:
18. Arguments adduced by Ld. APP for State and Ld. Defence Counsel for the accused persons have been heard. Evidences and documents on record perused carefully.
19. This Court has bestowed thoughtful consideration to the rival submissions made before the Court. Accused persons are indicted for the offences U/s 352 IPC and u/s 109 IPC. Section 352 IPC provides for punishment for assault or use of criminal force to any person otherwise than on grave and sudden provocation given by that person. Section 109 IPC provides for punishment for the offence of abetment if the offence abetted is committed in consequence of the abetment.
For attracting section 352 IPC there has to be either assault or use of criminal force against a person. Section 350 IPC and Section 351 IPC have been defined as under: Section 350 IPC :
"Criminal Force - Whoever intentionally uses force to any person, without that person's consent, in order to the committing of any offence, or intending by the use of such force to cause, or knowing it to be likely that by the use of such force he will cause injury, fear or annoyance to the person to whom the force is used, is said to use criminal force to that other".FIR No. 519/16 Page 12/20
State vs Jahur Ahmed and others Section 351 IPC :
"Assault - Whoever makes any gesture, or any preparation intending or knowing it to be likely that such gesture or preparation will cause any person present to apprehend that he who makes that gesture or preparation is about to use criminal force to that person, is said to commit an assault. Explanation - Mere words do not amount to an assault. But the words which a person uses may give to his gestures or preparation such a meaning as may make those gestures or preparations amount to an assault".
20. After appreciating the evidence and going through the testimony of the prosecution witnesses this Court finds the accused persons not guilty for any offence charged herein and they deserve acquittal for the following reasons:
21. PW2 Ms. Shabana Khan and PW3 Ms. Shaheen Khan are the star witnesses of the prosecution and victims in the present case. As far as the testimony of PW2 Ms. Shabana Khan is concerned, in her examination in chief recorded before the court she has not assigned or attributed any role of accused Somnath Bharti in commission of any offence. Accused Somnath Bharti has been charged for the offence punishable u/s 109 IPC i.e. for abetment of the offence whereas PW2 in her examination in chief nowhere FIR No. 519/16 Page 13/20 State vs Jahur Ahmed and others stated that in what manner accused Somnath Bharti have instigated or abetted the commission of offence. During her cross examination she stated that accused Somnath Bharti made a gesture from his face to the other accused but simultaneously she stated that she does not remember the exact gesture made by the accused as alleged by her. In her statement u/s 164 Cr.P.C. also nowhere it has been stated by PW2 that accused Somnath Bharti has instigated the other accused persons to commit any offence. In fact, she admitted in her statement u/s 164 Cr.P.C. that the accused Somnath Bharti has not done anything. Nothing incriminating has come in the testimony of PW2 against accused Somnath Bharti.
As far as the role of other accused persons is concerned, PW 2 in her examination in chief stated that accused Latif intimidated her from some distance whereas in her statement u/s 164 Cr.P.C. she stated that accused Latif came near her and used abusive language. Both these statements are contradictory to each other. Secondly, she stated that when she was returning after attempting to meet the Chief Minister she was abused by the accused persons namely Kalua, Latif and Jahur. No specific words have been mentioned by PW2 that have been uttered by the accused persons to her while abusing her. There is again no allegation against the accused persons for commission of offence u/s 352 IPC proved in the testimony of PW2. Thus, the guilt of the accused persons could not be established by the testimony of PW2.
FIR No. 519/16 Page 14/20State vs Jahur Ahmed and others
22. Now coming to the testimony of PW3 Ms. Shaheen Khan. In her examination in chief recorded before the court she has not alleged or attributed any role of accused Somnath Bharti in commission of the offence by the other accused persons. Accused Somnath Bharti has been charged for section 109 IPC i.e. for abetment of the offences whereas PW3 in her examination in chief nowhere stated that in what manner accused Somnath Bharti have instigated or abetted the commission of offence. At one place PW3 stated that accused Somnath Bharti laughed at her and gestured at Kalua and Jahur to send them from there without taking any action. This statement of PW3 makes it clear that accused Somnath Bharti has not instigated or abetted other accused persons to commit any offence and mere asking others to remove complainant from a place does not amount to abetting of any offence. Above all, PW3 also admitted in her statement u/s 164 Cr.P.C. that accused Somnath Bharti did not do anything. This all shows that accused Somnath Bharti had no role to play in any offence.
As far as the role of other accused persons is concerned, PW3 stated in her examination in chief that accused Latif threatened them and accused Jahur and Kalua surrounded them and abused Shabana but nowhere it is stated that what threat has been extended by accused persons or there was any use of criminal force against them. The allegations made against the accused persons qua commission of offence u/s 352 IPC remained FIR No. 519/16 Page 15/20 State vs Jahur Ahmed and others unsubstantiated in the testimony of PW3.
23. It is admitted by PW2 and PW3 that they met Chief Minister comfortably at the event and it is only when they tried to meet the Chief Minister again after his speech when he was about to leave, the workers of accused Somnath Bharti along with other security personnel stopped them from meeting the Chief Minister. PW2 and PW3 also admitted that they had a fight with the police when they did not allow them to meet the Chief Minister at the stage and it is also admitted that they did not have any prior permission from the office of the Chief Minister to meet him at the event. It has also come in the testimony of PW3 that there was a large gathering and the security personnel and the volunteers were working jointly for maintaining the discipline and security of program and it is also admitted by PW3 that security is necessary to prevent any unfortunate incident in such programmes. As a security measure, general public cannot be allowed to come close to the dignitaries holding such a high office without prior appointment or permission, so necessary force is naturally applied by the security persons against public person or any miscreant for that matter in order to avoid any kind of mishap or security lapse. PW2 and PW3 have claimed that there have been scuffle (dhakka mukki) with the security personnels and the accused persons. Admittedly, there has been a large number of gathering at the venue so minor scuffle while FIR No. 519/16 Page 16/20 State vs Jahur Ahmed and others ensuring the security is inevitable and that cannot be said to have happen with intention to commit any offence, thus, it does not fulfill the ingredients of section 352 IPC.
24. PW2 and PW3 seems to be interested witnesses having a motive to prosecute the accused persons for the reasons that they did not allow PW2 and PW3 to meet the Chief Minister. The videos in the pen drive and the compact discs Ex. PW3/X placed on record have been played and seen in the court. None of the video footage shows the accused persons scuffling with the complainant and the victim. In fact, the PW2 and PW3 can be seen scuffling with the police officials and other security personnels to the extent that they even tried to hit upon the police officials. In the complaint, PW2 claimed to have suffered injury whereas PW8 during her cross examination admitted that injuries could not be substantiated in the medical examination. The MLC filed on record also do not support the claim of PW2. There have been material discrepancies and contradictions in the testimonies of PW2 and PW3, that makes there testimony highly unreliable and motivated.
25. This court also agree with the argument put forth by the Ld. Counsel for the accused persons that there is no independent public witness examined by the prosecution apart from the complainant herself to substantiate their case. Admittedly, there were large FIR No. 519/16 Page 17/20 State vs Jahur Ahmed and others number of persons present at the spot at the time of incident but the prosecution has not made any effort to get examine any public witness in this regard. The judgment relied upon by Ld. Counsel for the accused persons in M. Munuswamy v. State, aptly applies in the present situation where it has been held that it is highly unsafe to convict the accused persons on the basis of interested testimony of the complainant where no other evidence is available in the form of independent public witness to prove the same.
26. Testimony of police officials on duty at spot i.e. PW4 and PW5 also proves on record that the complainant and her sister themselves were at fault as they tried to meet Chief Minister forcibly by breaching the security. These witnesses categorically deposed that none of the accused entered into any scuffle with the complainant nor they misbehaved with them. None of the other prosecution witnesses have substantiated the allegations of the complainant in the present case. The accused persons have not been named as the perpetrator of crime anywhere in the testimony of the prosecution witnesses apart from PW2 and PW3. Above all, it is pertinent to note that complainant has not filed the complaint on the same very day and chose to file the complaint on the next date without any reasonable explanation for the delay in filing the complaint. Complainant was even offered to record her statement at her place on the same day by PW6 SI Durgadas but she refused FIR No. 519/16 Page 18/20 State vs Jahur Ahmed and others without giving any reason. The FIR has been registered on 19.07.2016 whereas the complaint was given to the police on 09.07.2016 so registration of FIR after much delay also remain unexplained. It has been held by Hon'ble Apex Court in various judgments that even delay of one day has to be explained by the prosecution in registration of FIR and failing to do so would make a dent in the story of prosecution, thus, false implication of the accused persons cannot be ruled out in such cases.
27. PW8 has exhibited on record the complaint relied upon by DW1 i.e. Ex. PW8/D which have been received by the police before completion of the investigation. However, no efforts were made to interrogate or investigate the said aspect before filing the charge sheet. The testimony of police officials and video footage filed on record supported the plea of defence instead of supporting the case of prosecution. No material contradiction came out in the testimony of DW1 who categorically denied the involvement of the accused persons in any offence.
28. It is a settled proposition of criminal law that prosecution is supposed to prove its case on judicial file beyond reasonable doubt by leading reliable, cogent and convincing evidence. Also, it is a settled proposition of criminal law that accused is entitled to the benefit of reasonable doubt in the prosecution story and such FIR No. 519/16 Page 19/20 State vs Jahur Ahmed and others reasonable doubt entitles the accused to be acquitted.
29. In the instant case there are material discrepancies in the testimony of star witnesses and none of the other prosecution witnesses have supported the version of complainant leaving a big cloud of doubt. Delay in registration of FIR also remained unexplained which is also fatal to the case of prosecution. It is therefore held that the prosecution has not been able to successfully build the case against the accused persons. Accordingly, both the accused persons are entitled to be given benefit of doubt. Hence, accused persons namely Jahur Ahmed, Kalua, Latif and Somnath Bharti stands acquitted for the offences they are charged with.
Digitally signed VISHAL by VISHAL
PAHUJA
PAHUJA Date: 2020.03.06
10:17:11 +0530
ANNOUNCED IN THE OPEN (VISHAL PAHUJA)
COURT ON 04.03.2020 ACMMI/RACC/DELHI
Containing 20 pages all signed by the presiding officer.
Digitally signed by VISHAL VISHAL PAHUJA
PAHUJA Date:
2020.03.06
10:17:18 +0530
(VISHAL PAHUJA)
ACMMI/RACC/DELHI
FIR No. 519/16 Page 20/20
State vs Jahur Ahmed and others