Delhi District Court
State vs Mohd Ayub on 6 February, 2024
IN THE COURT OF VINOD KUMAR:
METROPOLITAN MAGISTRATE - 03 (CENTRAL)
TIS HAZARI COURTS: DELHI
State Vs. : Mohd. Ayub
FIR No : 208/2023
U/s : 188 IPC
P.S. : IP Estate
JUDGMENT:
1. Criminal Case No. : 12605/2023 2. Date of commission of offense : 31.07.2023 3. Date of institution of the case : 07.10.2023 4. Name of the complainant : State
5. Name of accused, parentage & : Mohd. Ayub S/o Sh. Mohd. Tahir
6. Offense complained or proved : 188 IPC
7. Plea of the accused : Pleaded not guilty
8. Date on which order was reserved: Not reserved
9. Final order : Acquitted
10. Date of final order : 06.02.2024
1. The accused is facing trial for offences u/s 188 IPC. The genesis of the prosecution story is that on 31.07.2023 at about 09:00 pm, at shop no. 7, Meer Dard Road, DDA Flat Mata Sundari Road, Delhi, accused had appointed employee /servant namely Atabul Ansari at his shop without any police FIR No. 208/2023 P.S. IP Estate State Vs. Mohd. Ayub Page 1 of 7 Digitally signed VINOD by VINOD KUMAR KUMAR Date: 2024.02.06 17:17:26 +0530 verification, the violated the directions issued vide notification no. 6376 6445/ACP/KM dated 30.06.2023 issued by ACP Kamla Market and had committed offence u/s 188 IPC.
2. After registration of the case FIR against accused, the criminal law was set into motion and the investigation began. After completion of investigation, the chargesheet came to be filed against accused for the alleged offence.
3. The cognizance of the offences was taken and after procuring the presence of accused through instrumentality of Court, provisions of section 207 Cr.P.C. were complied with and thereafter, on finding sufficient grounds to proceed against accused, notice of accusation for offence u/s 188 IPC was framed and served upon accused, to which he pleaded not guilty and claimed trial. Statement of accused u/s 313 Cr.P.C. r/w 281 Cr.P.C. and did not opt for leading defence evidence.
4. In order to establish guilt of the accused, prosecution has examined three witnesses. The testimonies of the material prosecution witnesses are as follows:
4.1 PW1 is Atabul Ansari who deposed that on that day, he was going at ITO Road, when one police official had taken him at Police Station and obtained his signatures on some papers and he had not known anything about the present matter and he had not known the accused. At this stage, he was cross examined by Ld. APP for the State as he was resiling from the statement earlier made to the police.
During crossexamination by Ld. APP for the state he deposed that he had not made any statement to the police and the statement of witness dated 31.07.2023 was read over to him who denied having made such statement to the police. He denied the suggestion that on 31.07.2013, he was FIR No. 208/2023 P.S. IP Estate State Vs. Mohd. Ayub Page 2 of 7 VINOD Digitally signed by VINOD KUMAR KUMAR Date: 2024.02.06 17:17:32 +0530 found working as servant at the spot under the employment of accused Mohd. Ayub at a monthly salary of Rs. 6000/ or that his employer had not got conducted his police verification or that he made his statement to this effect to the police or that he had settled the matter with the accused and being won over by him or that he was deposing falsely and also not identifying him today intentionally of deliberately or that he was deposing falsely. This witness has been crossexamined as Nil by Ld. Defence counsel despite grant of opportunity.
4.2 PW2 is HC Akhtar Hussain who deposed that on that day, he was on patrolling duty alongwith PW3 Ct. Kaushinder and when they were present at the spot, PW1 Atabul Ansari was found working as servant under the employment of shops owner and the shop owner whose name revealed Mohd. Ayub (accused in this case) was arrived and he was asked about the police verification of PW1 Atabul Ansari and the accused failed to show any police verification and the accused violated the directions of notification issued by concerned ACP and he prepared rukka and he had given rukka to PW3 Ct. Kaushander for registration of the FIR, who went to P.S. and got registered the case and PW3 Ct. Kaushander had again returned at spot and he had handed over him copy of FIR, rukka and certificate u/s 65 B Evidence Act and he inspected the site and prepared site plan and he arrested the accused and he recorded the statement of PW3 Ct. Kaushander and he collected the copy of notification of concerned ACP and obtained sanction u/s 91 Cr.PC and after completion of investigation chargesheet wasfiled.
During crossexamination by Ld. defence counsel he deposed that he had not remembered the number of his departure entry as well as arrival entry. He admitted that he had made his departure and arrival entry or that the spot was public place and customers were present inside the shop at that time. He further deposed that he had not made inquiry from public person nor FIR No. 208/2023 P.S. IP Estate State Vs. Mohd. Ayub Page 3 of 7 Digitally signed VINOD by VINOD KUMAR KUMAR Date: 2024.02.06 17:17:38 +0530 he asked them to join the investigation/proceedings and he had not remembered at what time PW3 Ct. Kaushander left the spot to PS and when he returned at spot. He denied the suggestion that the accused was not apprehended in the manner deposed by him or that he had been falsely implicated in the present case or that he was deposing falsely.
4.3 PW3 is Ct. Kaushinder who deposed that on that day, he was on patrolling duty with PW2 HC Akhtar Hussain and when they were present at the spot, one person namely Atabul Ansari (accused in this case) was found working as servant under the employment of shops owner whose name was revealed as Mohd. Ayub (accused in this case) and he was asked about the police verification of PW1 Atabul Ansari who was working as servant under his employment and the accused failed to show any police verification and the accused violated the directions of notification issued by concerned ACP and PW2/IO HC Akhtar Hussain prepared rukka and he gave rukka to him for registration of the FIR and he went to P.S. and got registered the case and he had returned at spot and he handed over copy of FIR rukka and certificate u/s 65 B Evidence Act to PW2/IO HC Akhtar Hussain and PW2/IO HC Akhtar Hussain inspected the site and prepared site plan and PW2/IO HC Akhtar Hussain arrested the accused.
During crossexamination by Ld. counsel for the accused he deposed that he had not remembered the number of his departure entry as well as arrival entry. He admitted that he had made his departure and arrival entry or that spot was public place and customers were present inside the shop at that time. He further deposed that he had not made inquiry from public person nor he asked them to join the investigation/proceedings and he had not remembered at what time he left the spot to PS and when he returned at spot. He denied the suggestion that the accused was not apprehended in the manner deposed by him or that he had been falsely implicated in the present FIR No. 208/2023 P.S. IP Estate State Vs. Mohd. Ayub Page 4 of 7 VINOD Digitally signed by VINOD KUMAR KUMAR Date: 2024.02.06 17:17:44 +0530 case or that he was deposing falsely.
5. The accused admitted that contents of FIR No. 208 /2023 PS I.P. Estate Ex. A1, endorsement on rukka vide DD No. 98A Ex. A2, certificate u/s 65B Evidence Act Ex. A3, Copy of order of ACP Ex. A4 and sanction u/s 195 Cr.PC Ex. A5. Consequently, witnesses cited at serial no. 3 and 4 were dropped from the list of witnesses.
6. Thereafter, the statement of accused u/s 281 r/w 313 Cr.P.C. was recorded wherein all the incriminating circumstances, were put to accused. The accused submitted that he is innocent and that he has been falsely implicated in the present case. The accused did not lead any evidence in defence.
7. In order to bring home the guilt of the accused it was incumbent on the part of prosecution to establish the essential ingredients of offence u/s 188 IPC.
8. Section 188 IPC lays down punishment for disobedience to the order duly promulgated by public servant. This provision provides that whoever knowingly acts in disobedience of an order promulgated by public servant whereby he is directed to abstain from certain act or to take certain order with certain property in his possession or under his management and such disobedience causes or tends to cause danger to human life, health or safety or is likely to cause riot or affray is liable to be punished with imprisonment extending upto six months and fine extending up to Rs.1000/.
9. Ld. APP for the State has submitted that the prosecution has established the offence of voluntarily disobedience of order by the accused, beyond all FIR No. 208/2023 P.S. IP Estate State Vs. Mohd. Ayub Page 5 of 7 VINOD Digitally signed by VINOD KUMAR KUMAR Date: 2024.02.06 17:17:49 +0530 reasonable doubts. Therefore, the accused deserves to be convicted for the alleged offences.
10. Per contra, Ld. LAC for accused has contended that the IO has not opted to join any public witness to prove the commission of alleged offences by accused and the whole case of prosecution is based on testimonies of interested witnesses. Therefore, the benefit of doubt must go in favour of accused and he deserves to be acquitted for the alleged offences.
11. I have heard the rival contentions advanced by the prosecution and de fence and have also gone through the case record carefully. Having dis cussed the testimonies of the prosecution witnesses, now let us advert our selves to the merits of the contentions advancement on behalf of the parties.
On perusal of the testimonies, it emerges from the testimony of PW1 Atabul Ansari that he completely turned hostile and did not support the case of the prosecution. While deposing before the Court, he denied the suggestion that he was working under the employment of the accused or that he was be ing paid wages in terms of the alleged employment by the accused. He further deposed that the police took his signatures on some papers. He completely denied his statement made earlier to the police. He failed to identify the ac cused in court. He was the only eye witnesses in the present case and other witnesses are formal witnesses. In these circumstances, the liability of the said offence cannot be fastened upon the accused.
12. Further, there is nothing in the testimony of the IO and the other PW examined by the prosecution to show that public person was present at the scene of alleged occurrence during the time the accused. There is no justification of the fact as to why no independent public persons were not associated in the investigation of the case by the IO as such public persons FIR No. 208/2023 P.S. IP Estate State Vs. Mohd. Ayub Page 6 of 7 VINOD Digitally signed by VINOD KUMAR KUMAR Date: 2024.02.06 17:17:55 +0530 who could have been the crucial witnesses to establish the case of prosecution. These facts cast grave doubts on the prosecution story and makes the defence version more probable.
13. Further, the documentary proof in form of DD entry has not been placed on record showing the departure of PW2 and PW3 from police station to the area of patrolling.
14. In view the discussion made above, as it emerges that the whole case of prosecution is based on the testimonies of the interested witnesses, therefore, I am not hesitate to conclude that the prosecution has failed to establish beyond all reasonable doubts that on the given date, time and place, the accused was found working without verification of servants which was mandated vide order ACP Kamla Market, therefore, the accused deserves to be acquitted for the offences with which he has been charged. The accused is accordingly acquitted for offence u/s 188 IPC.
15. The bail bonds, if any furnished by accused persons at the time of commencement of trail stands cancelled. Surety, if any stands discharged. Documents, if any shall be returned to its rightful owner as per rules. Endorsement, if any stands cancelled. Case property if any, shall be disposed off after expiration of period to assail this judgment and in case of appeal, as per the directions of Ld. Appellate Court. Case file be consigned to record room after due compliance.
VINOD Digitally signed by
VINOD KUMAR
Announced in the open court
KUMAR Date: 2024.02.06
17:18:01 +0530
on 06th day of Feb, 2023 (VINOD KUMAR)
MM03(Central), THC, Delhi
FIR No. 208/2023 P.S. IP Estate State Vs. Mohd. Ayub Page 7 of 7