Delhi District Court
State vs . Jamil Ahmed And Ors. Fir No. 487/97, ... on 30 August, 2014
State Vs. Jamil Ahmed and Ors. FIR No. 487/97, PSOIA, U/s. 147/148/149/186/323/332/353/379/506 IPC IN THE COURT OF SH. DHEERAJ MOR, METROPOLITAN MAGISTRATE (SE), SAKET COURTS, DELHI. FIR NO. 487/97 PS. OIA U/s. 147/148/149/186/323/332/353/379/506 IPC State Vs. Jamil Ahmed and Ors. JUDGMENT
A. SL. NO. OF THE CASE : 756/2/00
B. DATE OF INSTITUTION : 01/09/2000
C. DATE OF OFFENCE : 14/07/1997
D. NAME OF THE : Sh. Jagdeep Singh
COMPLAINANT S/o Sh Phool Singh
E. NAME OF THE
ACCUSED : 1. Jamil Ahmed
S/o Abdul Aziz
2. Jubair Ahmed
S/o Sh. Ghulam Nabi
3. Smt. Ved Wati
W/o Sh Om Prakash
4. Smt. Har Wati
W/o Sh. Swatantra Kumar
5. Sukhpal
S/o Sh. Vir Singh
1/11
State Vs. Jamil Ahmed and Ors. FIR No. 487/97, PSOIA, U/s. 147/148/149/186/323/332/353/379/506 IPC
6. Subhash S/o Sh. Gyan Chand
7. Khiman S/o late Sh Rishal F. OFFENCE : U/s.148/149/186/323/332/353/379/506 IPC COMPLAINED OF G. PLEA OF ACCUSED : Pleaded not guilty H. FINAL ORDER : Acquitted I. DATE OF SUCH ORDER : 30.08.2014 Brief Statement of Reasons for Decision
1. Briefly stated, the facts of the case as unfolded from the chargesheet are that on 14.07.1997, the officials/team of Archaeological Survey of India (ASI) headed by Sh. V.C.Sharma, Assistant Superintendent, Archaeologist and assisted by the police officials of PSOIA with casual labourers went to Tuglakabad Village for demolition of unauthorized houses/construction on the government/ASI land. Around 2.45/3.00 pm, suddenly a huge crowd, being instigated by Mangat Ram, Ajij, Zameel and Jubair, came from the village. The said persons instigated the crowd with the words that if today the ASI officials succeed in demolishing one house, then they may demolish all the remaining houses. Thereafter, the officers of ASI namely Sh. V.K.Sharma, Deepak Bhardwaj, Dharam Pal, M.K.Batra and Chandi Das Mishra were caught by the said unruly crowd and they were beaten by the members of the said unlawful assembly 2/11 State Vs. Jamil Ahmed and Ors. FIR No. 487/97, PSOIA, U/s. 147/148/149/186/323/332/353/379/506 IPC after waylaying them. In the said commotion, the members of the said unlawful assembly took away the implements that were brought by the ASI officials and their neighbourers for the purpose of demolition. The members of the said unlawful assembly also criminally intimidated the staff members of the ASI with the dire consequences, if they again return to the spot for demolition. In respect of the said incident, Sh. Jagdeep Singh, Assistant Conservator, ASI gave a written complaint dated 14.07.1997. In his complaint, he categorically stated that he can identify the members of unlawful assembly, if shown. The said complaint was endorsed and the present FIR was lodged. It is pertinent to mention that not even a single accused was apprehended at the spot. Later, seven accused persons were arrested and after conclusion of investigation, the present challan U/s.148/149/186/323/332/353/379/506 IPC was filed.
2. All the accused persons were summoned by the court for facing trial under the aforesaid sections. In compliance of Section 207 Cr. P. C the copy of the challan and the documents annexed with the challan were supplied to all the accused persons. Prima facie charges U/s.147/149/186/353/332/323/506/34 IPC were made out against all the accused persons namely Jameel Ahmed, Jubair Ahmed, Sukhpal, Khimman, Ved Wati, Har Wati and Subhash. Accordingly, on 07.01.2004, the charge was framed by the Ld. Predecessor of this court. The accused persons pleaded not guilty and claimed trial to the said charge. Thereafter, the case proceeded for prosecution evidence.
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3. In order to substantiate its case, the prosecution examined six witnesses.
4. PW1 Sh. M.K.Batra, Senior Surveyor, ASI, Delhi circle has testified that he was deputed by Superintendent SA ASI Sh. Dharambir Sharma to assist Sh. V.C.Sharma for demarcation and demolition of unauthorised commercial building inside the Tuglakabad fort. He has deposed that police assistance was also taken for the aforesaid work. He has testified that when they started the demolition of the unauthorised construction many people gathered there and started abusing and pelting stones on the officials. He has further testified that Mr. V.C.Sharma was beaten up by the public persons and some how he ran away from the spot. He has imposed that they attacked him with lathi and one motorcyclist gave blow on his chest. He further deposed that the other members of his team namely C.D Mishra, Dharampal and Deepak Kumar Bhargav also sustained injuries in the incident. However, he failed to identify either of the accused persons to be the perpetrator of the present offence. Thereafter, he was cross examined by the Ld. APP for the state as he was resiling from his previous statement in respect of the identity of the accused persons. In his cross examination, he conceded that he gave a statement to the police and the same is Ex. PW1/A. He further testified that the name of the accused persons were later on told to him. He identified the accused Juber to be one of the persons who was present at the spot. In respect of the remaining accused persons, he persisted that he can not identify them to be the culprits in this case.
5. PW2 Sh. Dharam Pal, Foreman, ASI, Delhi has deposed on the similar 4/11 State Vs. Jamil Ahmed and Ors. FIR No. 487/97, PSOIA, U/s. 147/148/149/186/323/332/353/379/506 IPC lines of PW1. Therefore, his testimony is not reproduced herein for the sake of brevity and to avoid repetition. He has failed to identify even the single accused to be the perpetrator of the present offence.
6. PW3 Dr. Vaibhav Jain, SR, AIIMS has identified the signatures and handwriting of Dr. Amit Mahajan who had prepared the XRay report of injured Sh Deepak Kumar and Sh S.C. Sharma dated 14.07.1997. The said reports are Ex PW3/A and Ex PW3/B respectively.
7. PW4 Dr. O.P.Muurthy, Additional Professor, AIIMS had given the opinion on the MLC nos. 58621/97, 58622/97, 58623/97 and 58621/97 of patient Chandi Das Mishra, Deepak Kumar, Sh V.C. Sharma and Dharam Pal respectively. He has testified that he gave the opinion only on the basis of MLCs and he did not examine any of the patients. All the four MLCs are collectively exhibited as Ex. PW4/A.
8. PW5 Deepak Kumar Bhardwaj, Surveyor GradeI, ASI has testified that on 14.07.1997 he was posted in the same office and on that day, he alongwith the other staff members and team in charge went to the PSOA for demanding police force for the demolition work at TKD village. He has further testified that after arrival of police officials, demolition work was started. He has further testified that at about 2.453.00 pm, many public persons gathered at the spot and started beating the staff members of ASI and Sh V.C.Sharma lost his front teeth and he himself also sustained injuries. He has only identified the accused Jamil and Jubbair and stated that they were leading the crowd. However, he has failed to identify the other accused persons. In his cross 5/11 State Vs. Jamil Ahmed and Ors. FIR No. 487/97, PSOIA, U/s. 147/148/149/186/323/332/353/379/506 IPC examination, he conceded that accused Juber and Jamil were not known to him and he had never seen them prior to the incident.
9. PW6 HC Devender has testified that on 14.07.1997 hw went to Tuglakabad fort where demolition of the encroachment was being carried out. Public persons pelted stones during demolitions and some persons sustained injureis. He got B.C Sharma, C.D Mishra and Dharam Pal examined at AIIMS hospital.
10. Thereafter, PE was closed.Statements of all the accused persons except accused Khimman (who was permanently exempted)u/s 313/281 Cr.P.C. were recorded. All the incriminating evidence were put to them for seeking their respective explanations. All of them have stated that they are innocent and they have been falsely implicated in this case. Only the accused persons namely Juber and Jamil preferred to lead evidence in defence. The remaining accused persons opted not to lead defence evidence. Consequently, the matter proceeded for defence evidence. Sh. Shahji K. Philip was examined as DW1 by accused Juber Wani. He testified that on 14.07.1997, accused Juber came to his office at C.R Park, Delhi at 12.00 noon and left it at 5.00 p.m. During the entire duration, he remained along with him at the said office and they both did the office work.
11. DW2 Mohd. Yousuf has testified that he is working as an assistant at Lajpat Nagar along with accused Jamil in an export office. On 14.07.1997 accused Jamil came to the said office at 10.00 a.m and remained there till 4.00 p.m. Thereafter defence evidence was closed.
6/11 State Vs. Jamil Ahmed and Ors. FIR No. 487/97, PSOIA, U/s. 147/148/149/186/323/332/353/379/506 IPC
12. I have heard Ld. APP for the state and Ld. counsel for all the accused persons. I have carefully perused the case file.
13. The cardinal principle of the criminal law is that the accused is presumed to be innocent till he is proved guilty, beyond any reasonable doubt. The burden of proving the guilt of the accused, exclusively lies on the prosecution and the prosecution is required to stand on its own legs. The benefit of doubt, if any, must go in favour of the accused.
14. In respect of the allegations under Section 147/148/149 IPC, one of the basic ingredient for the unlawful assembly is that it must consist of five or more persons. However, not even a single prosecution witness has testified that the perpetrators of the offence were five or more than five in number. The prosecution witnesses have testified that many people gathered at the spot. In respect of the number of persons gathered at the spot, it is a vague statement and does not conclusively establishes that the said persons were more than five. Therefore, the prosecution has failed to prove the presence of unlawful assembly at the spot and consequently, the doctrine of constructive and joint liability cannot be invoked in this case. Thus, the act of every individual has to be independently and separately evaluated. In absence of any proof regarding the presence of unlawful assembly at the spot, none of the accused persons can be indicted for any of the offences punishable under Section 147/148/149 IPC and accordingly, all the accused persons are entitled to be acquitted for the said offences.
7/11 State Vs. Jamil Ahmed and Ors. FIR No. 487/97, PSOIA, U/s. 147/148/149/186/323/332/353/379/506 IPC
15. Besides, none of the prosecution witnesses has uttered even a single word against either of the accused persons regarding the commission of theft or criminal intimidation. Thus, there is no evidence on record to suggest that either of the accused persons committed the offence of theft or criminal intimidation. Accordingly, all the accused persons are entitled to be acquitted for the offence punishable under Section 379/506 IPC.
16. The prosecution witnesses have consistently and categorically deposed that on the alleged date, time and place of incident, the demolition work was going at TKD village and some public persons have gathered there and started beating the staff members of ASI. Their depositions regarding the incident inspire sufficient confidence and there is no reason to doubt the fact regarding the occurrence of the incident. Therefore, their testimonies regarding the incident as alleged in the complaint, except unlawful assembly, rioting, theft and criminal intimidation has been proved.
17. The only contentious issue that survives in this case is regarding the identity of the accused persons. The identity of an accused in a criminal trial is of paramount importance. No one can be held guilty unless his identity is established beyond any suspicion of doubt. However, none of the prosecution witnesses have identified accused persons namely Sukhpal, Khimman, Vedwati, Harwati and Subhash to be the perpetrators of the said offence or even to be the member of the said gathering. Thus, the said accused persons are entitled to benefit of doubt and 8/11 State Vs. Jamil Ahmed and Ors. FIR No. 487/97, PSOIA, U/s. 147/148/149/186/323/332/353/379/506 IPC accordingly, the said accused persons are hereby acquitted for the offences under which they are charged.
18. Out of several staff members of ASI, only PW1 M.K.Batra and PW5 Deepak Kumar Bhardwaj have identified the accused Jubair to be the one of the persons who was present at the spot. PW5 Deepak Kumar Bhardwaj has identified Jameel also to be present at the spot. Therefore, only two prosecution witnesses have identified the said two accused persons. Since the prosecution has failed to establish the existence of unlawful assembly at the spot, therefore, the accused cannot be indicted on the basis of an act committed by any other person. In other words, the prosecution cannot take the benefit of a doctrine of joint liability as enshrined under Section 149 IPC and the accused can only be made liable for the act committed by him independently and in his individual capacity. In the present case, none of the prosecution witnesses has attributed any specific role to any of the said two accused persons. On the contrary, they have merely stated that they were present at the spot. Merely being present at the spot, without doing any overt act, does not attract any criminal liability against either of them.
19. Moreover, it is an admitted fact that none of the accused persons were apprehended at the spot on the date of incident i.e. on 14.07.1997. It is not denied that the name of the said two accused persons namely Jamil and Jubair finds mentioned in the complaint of Sh. Jagdeep Singh dated 14.07.1997. However, the said complainant never appeared in the witness box to substantiate his complaint and to identify the 9/11 State Vs. Jamil Ahmed and Ors. FIR No. 487/97, PSOIA, U/s. 147/148/149/186/323/332/353/379/506 IPC accused persons. Further, it is not clear from the said complaint as to how he knew their names all the more when none of the accused persons was apprehended on the date and spot of the incident. Furthermore, PW5 Deepak Kumar Bhardwaj in his crossexamination has categorically stated that he did not know either of the said two accused persons prior to the incident. It is also an admitted fact that the TIP of the accused persons not got conducted. The said witness has claimed to identify the two accused persons in the court after ten years of the incident. He has failed to explain as to what was so specific about their identity that he could identify them in the court despite of not knowing them prior to the incident and on seeing them for the first time after the long gap of ten years. Initially, PW1 Sh. M.K.Batra failed to identify even the accused Jubair to be one of the accused persons. In his crossexamination, conducted by Ld. APP for the State, he conceded that he gave the names of the accused persons in his statement to the police Ex. PW1/A on the basis of the names told to him by someone else. In these circumstances, the testimony of the said two prosecution witnesses regarding the identity of the said two accused persons is weak and shaky, which does not inspire sufficient confidence.
20. Hence, not only the identity of the said two accused persons has remained unestablished beyond reasonable doubt, but even if their presence at the spot is assumed to be established, in that case also, in the absence of attribution of any specific role to them, they cannot be indicted for any of the criminal offence for which they have been charged. The said accused persons are also entitled to benefit 10/11 State Vs. Jamil Ahmed and Ors. FIR No. 487/97, PSOIA, U/s. 147/148/149/186/323/332/353/379/506 IPC of doubt as the prosecution has failed to lead cogent, convincing and conclusive evidence to prove its case beyond any reasonable doubt. In view of the, above discussion all the seven accused persons namely Jameel Ahmed, Jubair Ahmed, Sukhpal, Khimman, Smt. Vedwati, Smit Harwati and Subhash are acquitted for the offence punishable U/s 147/148/149/186/353/332/323/506/379/34 IPC. They are directed to furnish fresh personal bonds in a sum Rs.10,000/ each with one surety each in like amount, in accordance with Section 437A Cr.P.C. In respect of all the accused persons except accused Khimman, the same are furnished and accepted for next six months. At request of Ld. Counsel for the accused Khimman, his previous bail bonds and surety bonds are extended for the next six months. ANNOUNCED IN OPEN court today i.e. 30.08.2014.
(DHEERAJ MOR) METROPOLITAN MAGISTRATE (SE) SAKET COURTS: DELHI 11/11 State Vs. Jamil Ahmed and Ors. FIR No. 487/97, PSOIA, U/s. 147/148/149/186/323/332/353/379/506 IPC State Vs. Jameel Ahmed and Ors.
PS. OIA U/s. 147/148 IPC State Vs. Jameel Ahmed & Ors.
30.08.2014
Present Sh. Narender Yadav, Ld APP for the State.
Accused Khiman is permanently exempted.
Remaining accused persons on bail with their counsel Sh. Vijay Pal Bidhuri. Heard. Case file perused.
Vide my separate judgment announced in the open court today, all the seven accused persons namely Jameel Ahmed, Jubair Ahmed, Sukhpal, Khimman, Smt. Vedwati, Smit Harwati and Subhash are acquitted for the offence punishable U/s 147/148/149/186/353/332/323/506/379/34 IPC. They are directed to furnish fresh personal bonds in a sum of Rs.10,000/ each with one surety each in like amount, in accordance with Section 437A Cr.P.C. In respect of all the accused persons except accused Khimman, the same are furnished and accepted for next six months. At request of Ld. Counsel for the accused Khimman, his previous bail bonds and surety bonds are extended for the next six months.
File be consigned to Record Room after due compliance.
(DHEERAJ MOR) METROPOLITAN MAGISTRATE (SE) SAKET COURTS: DELHI 12/11 State Vs. Jamil Ahmed and Ors. FIR No. 487/97, PSOIA, U/s. 147/148/149/186/323/332/353/379/506 IPC 30.08.2014 13/11