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Delhi District Court

State vs Arif Khan on 11 January, 2024

IN THE COURT OF METROPOLITAN MAGISTRATE-08,
SOUTH-EAST DISTRICT, SAKET COURTS, NEW DELHI

                           ::: JUDGMENT :

::

IN THE MATTER OF:

                                             Mijajuddin, S/o H. No. 158, Gali No.
                                                  22, Zakir Nagar, NewDelhi
 G.      Offence complained of           :        447/511/120B/427/34 IPC
 H.       Plea of the Accused            :    Pleaded not guilty and claimed trial
 I.      Judgment reserved on            :                20.11.2023
 J.        Date of Judgment              :                11.01.2024
 K.              Final Order             :                Acquittal

ACCUSED DETAILS:
Sr. No. of the accused                   1                             2
Name of the accused                  Arif Khan                  Mohd Nasir
Date of Arrest                      10.08.2017                  Not arrested
Date of release on Bail             10.08.2017                  Not arrested
Offence charged with            447/511/120B/427/34        447/511/120B/427/34
                                        IPC                        IPC
Whether Acquitted/                   Acquitted                   Acquitted
convicted

FIR No. 516/2017                State Vs. Arif Khan                Page No. 1/10
 Sentence Imposed                 --                      --
Period of detention              --                      --
undergone during trial
(for section 428 CrPC)


LIST OF PROSECUTION WITNESS:
Sr.No. Name of the Witness
1       Sh Irkan Chaudhary
2       Sh. Parvez Alam
3       HC Yashpal
4       Insp. Rishi Sharma

LIST OF DOCUMENTS (PROVED BY THE PROSECUTION):

Sr. No. Description of documents           Exh. No.
1       Copy of FIR                        Ex. A-1
2       DD No. 9A dated 10.08.2017         Ex. A-2
3       Seizure Memo                       Ex. PW4/A
4       Rukka                              Ex. PW4/B
5       Arrest Memo                        Ex. PW4/C
6       Release                            Ex. PW4/D
7       Disclosure statement               Ex. PW4/E
8       Site Plan                          Ex. PW4/F
9       Notice                             Ex. PW4/G
10      Notice to accused Nasir            Ex. PW4/H

DEFENCE WITNESS: None

LIST OF DOCUMENTS (PROVED BY DEFENCE): NA

Factual Background:

1. Briefly stated, the case of the prosecution that on 10.08.2017 at about 02:45 AM at House No. 452, Friends Apartment, Zakir Nagar, Jamia Nagar some persons along with one woman started breaking lock and putting their own lock on shop of the complainant, situated at the ground floor of the aforesaid property, with the intension to capture it. At that time complainant called on 100 number. Some of the boys fled away from the spot, when Police arrived but two boys were nabbed, one of whom was putting shutter and another boy was helping him. Both the boys have stated that they were doing the above-stated work on instructions of one person namely Nashir. Nashir is the stepson of the complainant, FIR No. 516/2017 State Vs. Arif Khan Page No. 2/10 wants to capture the property of the complainant. On that basis, the present FIR was registered against the accused. Upon completion of investigation, charge sheet under section 447/511/120B/34 was filed and the accused persons were sent for trial. Court Proceedings:

2. The ld. Predecessor of this court took cognizance of the offence on 16.09.2019 and issued process against both the accused persons. Pursuant to the appearance of the accused, they were supplied with the copy of chargesheet in compliance of Section 207 CrPC.

3. Upon hearing the arguments, vide order dated 18.01.2023, charge under section 447/511/120B/427/34 IPC was ordered to be framed against both the accused. The accused persons pleaded not guilty and the matter was listed for Prosecution Evidence ('PE').

Prosecution Evidence:

4. In order to establish its case against the accused persons, prosecution examined 4 witnesses namely Sh. Irkan Chaudhary ('PW1'), Sh. Parvez Alam ('PW2'), HC Yashpal ('PW3').and Insp.

Rishi Sharma ('PW4').

5. PW1/ Ikran Chaudhary deposed that on the intervening night 10.08.2017 at about 02:45 AM, he was present at his house and he was sleeping. In the morning he came to know about the incident when police officials came to his house. He is the RWA member of his society. The incident was of quarrel between Mehru Nisha and her step son regarding the property which is situated in his colony. Police came in the morning and recorded his statement. He deposed that he has not seen the incident as it did not happen in his presence. He deposed that he could not identify the accused as he had not seen the faces of the accused persons.

6. During cross examination by Ld. Counsel, PW1 deposed that he is still the member of RWA. He has only heard that Mehru Nisha has sold the property to some other person. However, he is not exactly aware about the same. He admitted that husband of Mehru Nisha, namely Mejajuddin had three marriages. He does not know whether Mejajuddin had sold the portion of the said property bearing no. 452, Zakir Nagar, Okhla to Mohd. Nasir. He denied that accused persons has not committed any trespass in the said property. He denied that he is deposing falsely.

7. PW2/ Parvez Alam deposed that he worked as media professional since 2000 till date. He does not know about the facts and circumstances of this case. He also does not know about the complainant or the accused.

8. At this stage Ld. APP for the state has sought permission to cross examine the witness as he has turned hostile to the prosecution case. Permission was granted.

9. During cross examination by Ld. APP, witness was read over his statement recorded under section 161 CrPC. The statement is identified as mark X, specifically the portion from point A to A-1. The witness denies to be his statement. He deposed that he knows about the property number 425, friend apartment Zakir Nagar, Jamia Nagar. He knows about Mehrunisha as she lives in the same locality as he does. He deposed that he knows about the steps son of Mehrunisha. Again, said he does not know about the steps son of Mehrunisha. He also does not know or remember whether the steps son Mehrunisha try to take forcible possession of her property. The husband of Mehrunisha is Babu he does not know original name of her husband but they used to call him Babu Bhai. He was also expired around 2017. Mehrunisha never complaint anything FIR No. 516/2017 State Vs. Arif Khan Page No. 4/10 regarding this incident or her about steps son. He does not know whether the accused persons have previously attempted to take over the property of the complainant. He denied that he has obtained any corrupt inducement from the accused persons. He denied that he has been won over by the accused persons. He denied that he is deposing falsely.

10. During cross examination by Ld. Defence Counsel, PW2 deposed that he was not present at the time of incident.

11. PW3/ HC Yashpal deposed that on 09.08.2017 he was posted at PS- Jamia Nagar. On that day, he was on patrolling duty along with HC Sativr from 08.00 PM to 08.00 AM. On that day in the intervening night of 09.08.2017-10.08.2017 a call was received at about 03:00 AM -03:30 AM. The call was assigned to him regarding quarrel at 452, Zakir Nagar, Jamia Nagar. He reached at the spot with official motorcycle. He deposed that when they reached at the spot many persons at the spot fled and two persons remained at the spot. One lady aged about 25-30 years who was caller/complainant came to the spot. IO SI Rishi Sharma reached at the spot to whom the two alleged accused persons and broken part of the lock/hook of the shutter was handed over to the IO. IO recorded their statement u/s 161 Cr PC. After recording of statement u/s 161 they went back to patrolling duty.

12. During cross examination by Ld. Defence Counsel, PW3 deposed that he did not make DD entry. Duty Officer used to enter DDs. He received call from Duty Officer at about 03:00-03:30 AM. He was at Yamuna Pusta when call was received. He did not make any inquiry from the persons gathered at the spot. IO reached after 10-15 minutes of our arrival at the spot. IO recorded their statement and made pulanda of broken hook/lock of shutter. His statement FIR No. 516/2017 State Vs. Arif Khan Page No. 5/10 was recorded by the IO on the stairs of the shop. He remained for about 30 minutes after arrival of IO at the spot. Statement of HC Satvir was also recorded by the IO. He deposed that their statements were completed within 30 minutes. He denied that he did not reach at the spot and all the proceedings were conducted while sitting at the PS. He admitted that their statements were recorded prior to recording of statement of the complainant. The pulanda was made in his presence. His signature was not obtained on pulanda. Sealing materials were with IO. He denied that pulanda was not sealed in his presence that is why his signature is not there either on pulanda or on fard. He denied that he is deposing falsely.

13. PW4/ Insp. Rishi Sharma deposed that on 10.08.2017, he was posted as SI at PS Jamia Nagar. On that day, he received a PCR call vide DD No. 9A on which he along with Ct. Pradeep reached at the spot i.e. house no. 452, Zakir Nagar, Gali No. 14, New Delhi where beat staff already present along with complainant and two suspected persons namely Arif and Dilshad. Thereafter complainant stated that these persons were trying to take illegal possession of her shop by changing lock of shutter of shop and said that she will give her statement / complaint later. He deposed that thereafter, he interrogated both suspected persons and Dilshad stated that he is doing welding work and he was hired by one Nasir who himself represented himself as owner of the shop and asked to change the lock as he has lost the keys. Thereafter, he interrogated the alleged accused Arif who accepted that he is changing the locks as per the direction of Nasir to get the illegal possession of the shop. Thereafter, he seized the part of the shutter which was changed vide seizure memo which is Ex PW4/A it bears his signature at Point A. Thereafter, complainant Mehrunisha made a written complaint on which he registered a case vide rukka Ex. PW4/B which bears his FIR No. 516/2017 State Vs. Arif Khan Page No. 6/10 signature at point A and take up the investigation. During the course of investigation, he recorded statement of complainant and other witnesses and arrested accused Arif vide Arrest memo Ex. PW4/C. Then, he released accused Arif on bail bond which is Ex PW4/D which bears his signature at Point A. He also recorded disclosure statement of accused Arif vide Ex. PW4/E which bears his signature at Point A. Thereafter, he inquired complainant and prepared site plan at the instance of complainant vide Ex. PW4/F which bears his signature at Point A. During course of investigation, he served notice to the complainant to provide CCTV footage of the incident as she mentioned in her complaint vide Ex. PW4/G which bears his signature at Point A but she did not provide the footage. During investigation, he served notice u/s 41A CrPC to accused Nasir vide Ex.PW4/H bears his signature at Point A and interrogated him and thereafter, filed charge-sheet in the present case against accused persons. Accused persons are correctly identified by the witness in court.

14. During cross examination by ld Defence Counsel, PW4 deposed that he was present in the PS at the time of receiving the PCR call. Duty officer received the PCR call. On that day, he was on emergency duty from 08.00 AM to 08.00 PM. He does not remember the exact time when he reached at the spot. When he reached at the spot, no public persons were present. At that time, at the spot the complainant, beat staff, accused Arif and one another person Dilshad were present. He deposed that he has made Dilshad as prosecution witness. He has recorded statement of beat staff. He admitted that complainant has made the complaint at PS on the date of the incident. Statements of beat officers were not recorded at the spot. Seizure memo was prepared at the spot. He denied that he has not done investigation of this case properly and fairly. He denied FIR No. 516/2017 State Vs. Arif Khan Page No. 7/10 that accused Arif was not present at the spot. He denied that he has concluded the investigation of this case while sitting at PS.

15. Vide order dated 20.11.2023 PE was closed.

Admission u/s 294 CrPC

16. In terms of section 294 CrPC, accused has admitted copy of FIR and DD No. 9A dated 10.08.2017 as Ex. A-1 and Ex. A-2 respectively.

Statement of accused u/s 313 CrPC

17. Since no incriminating evidence had come on record against all the accused implicating them in the present offence, recording of statement u/s 313 CrPC was dispensed with.

Final Arguments:

18. Ld. APP has re-iterated the contents of the chargesheet.

19. Per Contra, Ld. Counsel for defence has submitted that the prosecution has completely failed to prove its case and therefore, the accused persons are entitled to be acquitted of the alleged offence.

20. This court has heard the submissions of Ld. APP for State and the Ld. Counsel for accused and carefully perused the judicial record.

Discussion and Analysis:

21. In a criminal trial, the burden of proving everything essential to the establishment of the charge against an accused always rests on the prosecution and there is a presumption of innocence in favour of the accused until the contrary is proved. Criminality is not to be presumed, subject of course to some statutory exceptions. It was observed in Partap v. State of U.P., A.I.R. 1976 SC 966 that while prosecution is required to prove its case beyond a reasonable doubt, accused can discharge his onus by establishing a mere preponderance of probability. In Vijayee Singh v. State of U.P., 1990(3) S.C.C. 190, it was again held that in criminal cases burden FIR No. 516/2017 State Vs. Arif Khan Page No. 8/10 is always is on prosecution and never shifts. In Nasir Sikander Shaikh v. State of Maharashtra, (SC) 2005 Cri.L.J. 2621 and Jarnail Singh v. State of Punjab, (SC) 1996(1) R.C.R.(Criminal) 465 it was held that it is cardinal principle of criminal jurisprudence that an accused is presumed to be innocent and burden lies on prosecution to prove the guilt of accused beyond reasonable doubt. Prosecution is under legal obligation to prove each and every ingredient of the offence beyond any doubt, unless otherwise so provided by the Statute. Accused is not expected to prove his innocence to the hilt. If prosecution story is doubtful, benefit of doubt must go to the accused.

22. Complainant Mehrunisha and another prosecution witness Dilshad was dropped from the list of witness vide order dated 09.10.2023. Their presence could not be secured by the prosecution. PW1/Irkan Chaudhary has stated that he has not witnessed the incident and denied to identify the accused persons. PW2/Parvez Alam has turned hostile and not supported the case of the prosecution on any count. He has neither proved the incident nor identified the accused persons. Rest of the witnesses were Police witness who has proved the official function rendered by them. They are not the witness of the incident.

23. Due to non-appearance of the complainant and hostility of prosecution witnesses, the prosecution has miserably failed to connect the accused persons to the alleged incident and therefore, remained doubtful on the involvement of the accused in the alleged incident. The case of the prosecution cannot be said to have been proved in any manner.

Decision:

23. Accordingly, accused (1) Arif Khan S/o Mr. Zabbar Khan and (2) Mohd. Nasir S/o Mr. Mijajuddin held not guilty and FIR No. 516/2017 State Vs. Arif Khan Page No. 9/10 stands acquitted for the offence punishable under section 447/511/120B/34 and 427 of the Indian Penal Code.

Announced in open                      (Abhitesh Kumar)
Court today i.e on 11.01.2024     MM-08, (SE) Saket Courts
                                           New Delhi

This Judgment contains ten pages (10) and all pages bears my signature.

(Abhitesh Kumar) MM-08 (SE): Saket Courts New Delhi: 11.01.2024 FIR No. 516/2017 State Vs. Arif Khan Page No. 10/10