Delhi District Court
State vs . Sabir Mohd Sheikh on 15 May, 2023
IN THE COURT OF MS. RAJANI RANGA, ADDITIONAL
CHIEF METROPOLITAN MAGISTRATE-01, TIS HAZARI
COURT, CENTRAL : DELHI.
State Vs. Sabir Mohd Sheikh
FIR No. 52/2020
PS: Paharganj
Registration No. 6089/2020
JUDGMENT
(a) Sr. No. of the case 6089/2020
(b) Date of offences 24.02.2020
(c) Complainant ASI Sahan Singh
(d) Accused Sabir Mohd. Sheikh S/o Sh.Mohd
Sheikh, R/o H.No. 66, Gali no. 12,
Saket Blockk, Mandawali, Fazilpur.
Current address: H.No. 88, Saket
Block, Fazal, Mandawali, Delhi-
110092.
(e) Offences Under Section u/s. 4(a) of the Delhi
Prevention of Touting &
Malpractice Against Tourist Act,
2010
(f) Plea of accused person Pleaded not guilty.
(g) Final Order Acquitted
(h) Date of institution 27.08.2020
(i) Date when judgmentNot reserved
was reserved
(j) Date of judgment 15.05.2023
FIR No. 52/2020 State Vs. Sabir Mohd Sheikh Page no. 1-10
ACMM-01/Central/15.05.2023
1. Vide this judgment; I shall decide the final outcome in the FIR No. 52/2020, registered at Police Station: Paharganj, wherein alleging the commission of the offence punishable under section u/s. 4(a) of The Delhi Prevention of Touting & Malpractice Against Tourist Act, 2010 (shall be referred to as 'DPT & MAT Act' in short).
PROSECUTION CASE
2. The prosecution case, in brief, is that on 24.02.2020 at around 7:50 pm, at CF Road, Tel Mandi, Paharganj, Delhi, accused was found touting by offering hotel, food and taxi to Indian and foreignors tourists on cheap rate. Hence, the instant FIR was registered against accused.
3. Investigation was conducted. Upon completion of investigation, charge-sheet was filed in the Court on 27.08.2020, against accused for the alleged commission of the offence punishable under section 4(a) of the Delhi Prevention of Touting & Malpractice Against Tourist Act, 2010. Three witnesses were cited to be examined to prove its case by the prosecution.
4. On 02.03.2021, cognizance of offence was taken and the accused person was summoned. Accused put in an appearance in the Court. Copy of charge-sheet was supplied to him.
NOTICE FIR No. 52/2020 State Vs. Sabir Mohd Sheikh Page no. 2-10 ACMM-01/Central/15.05.2023
5. On 17.03.2023, notice in terms of section 251 CrPC, was served upon the accused for the alleged commission of the offence punishable under sections 4(a) of the Delhi Prevention of Touting & Malpractice Against Tourist Act, 2010, to which he pleaded not guilty and claimed trial. ADMISSION AND DENIAL STATEMENT OF THE ACCUSED IN TERMS OF PROVISION OF SECTION 294 CrPC
6. The accused person has admitted the genuinness of the instant FIR and endorsement on rukka marked as EX.A1, EX.A2 and EX.A3 respectively. His statement to that effect had been recorded in terms of section 294 of The Code of Criminal procedure, 1973 (in short shall be referred as CrPC) Therefore, the name of DO/ASI Gulzar, who was the duty officer and registered the instant FIR, was dropped from the list of witnesses.
WITNESSES EXAMINED BY THE PROSECUTION
7. HC Ajay Pathak, SI Mahender Singh, and SI Sahan Singh, were examined as PW1, PW2 and PW3. Prosecution evidence was closed.
STATEMENT OF THE ACCUSED PERSON
8. Statement of the accused person has been recorded in terms of provisions of section 313, Cr.P.C. He stated that he is innocent and falsely implicated in the present case. He opted not to lead evidence.
FINAL ARGUMENTS FIR No. 52/2020 State Vs. Sabir Mohd Sheikh Page no. 3-10 ACMM-01/Central/15.05.2023
9. Final arguments have been heard. Records have been perused and considered.
10.Ld APP for the State has argued that the prosecution has successfully proved its case against the accused beyond reasonable doubt. Ld APP for the State has also argued that the factum of the accused touting has been proved beyond reasonable doubt and therefore, accused is liable to be convicted in this case. On the other hand, Ld Counsel for accused has submitted that he is innocent and has been falsely implicated. The Ld Counsel has also submitted that the alleged incident took place on a public place but no public witness has been joined despite availality and the prosecution has failed to prove the case beyond reasonable doubt. With these submissions, Ld Counsel has prayed for acquittal of the accused.
PROSECUTION EVIDENCE
11.Before I proceed with the adjudicatory evaluation of material available on record and comment upon the merits, I deem it appropriate to take on record the brief testimony of the prosecution witness.
12.As testified by PW1/HC Ajay Pathak and PW3/SI Sahan Singh, on 24.02.2020, they both were on patrolling duty at CF Road, Tel Mandi, Paharganj, Delhi, and found the accused soliciting the tourists on the pretext of providing them hotel, food and taxi on cheap prices, due to which tourists were getting annoyed. They both requested FIR No. 52/2020 State Vs. Sabir Mohd Sheikh Page no. 4-10 ACMM-01/Central/15.05.2023 the tourists to make a written complaint but they left the spot without making complaint. The PW 3 requested 3-4 public persons to joined the investigation but none joined and left the spot without disclosing their names and addresses. The visiting cards of three hotels were recovered from the possession of accused and seized vide memo, Ex.PW1/X and were identified in the court as Ex.PW1/X1. Accused was apprehended. The PW3/IO prepared the rukka, Ex.PW1/A, and got the instant FIR, Ex.A1, registered through PW1. After registration of the FIR, PW1 came alongwith the IO/PW2.
13.The PW2/retired SI Mahender Singh, deposed that on 24.02.2022, the investigation was marked to him and he reached on the spot. He prepared site plan, Ex.PW1/B, arrested accused vide memo Ex.PW1/C and conducted personal search vide memo, Ex.PW1/D. Accused was released on Police bail. He recorded the statement of witnesses. After completion of investigation, he filed charge-sheet in the Court. He correctly identified accused in the Court.
EXAMINATION OF MATERIAL AVAILABLE ON RECORD INCLUDING THE EVIDENCE AND BRIEF REASON FOR THE DECISION
14.It is a settled proposition of criminal law that the prosecution is required to prove its case beyond reasonable doubt by leading reliable, cogent and FIR No. 52/2020 State Vs. Sabir Mohd Sheikh Page no. 5-10 ACMM-01/Central/15.05.2023 convincing evidence that in order to prove its case, the prosecution is supposed to stand on its own legs whereby it cannot derive any benefit whatsoever from the weaknesses, if any, in the defence of the accused. Further settled it is, that the primary burden of proof for proving the offence in a criminal trial rests on the shoulders of the prosecution, which burden never shifts on to the accused.
15.It is no longer Res Integra that accused is entitled to benefit of every reasonable doubt(s) appearing qua the material facts of the prosecution's story whereby such reasonable doubt(s) entitles the accused to acquittal.
16.In the light of the above discussed legal position, I shall now step forward to divulge my opinion on the fate of the present case.
17.The PW1 and PW3 are the eye witnesses to the alleged incident as per the case of the prosecution and as deposed by them. Whereas PW2/SI Mahender Singh carried out investigation after the registration of the instant FIR and he arrived on the spot after the occurence of the alleged incident. Therefore, the testimony of PW1 and PW3 is important to decide the guilt or innocence of the accused.
18.The case of the prosecution is that the accused was touting the tourists by offering them hotel, food and taxi on cheap rates. Thus, the victim of the crime was the tourists who were allegedly being touted by the accused. The victim FIR No. 52/2020 State Vs. Sabir Mohd Sheikh Page no. 6-10 ACMM-01/Central/15.05.2023 was in better position to depose as to what had happened with her/him. Pertinently, neither any victim has been cited as a witness nor examined by the prosecution. Had any of the victims been examined the accused would have got the opportunity to cross examine the victim and truth could be elicited on record. The accused has been deprived of this opportunity. For not examining any victim, no plausible explanation has been offered by the prosecution which evokes a suspicion to the case of prosecution.
19.Further, evidently, neither any public witness has been cited in the list of witnesses or examined by the prosecution. The alleged incident of touting is stated to have taken place on a public place i.e at CF Road, Tel Mandi Chowk, Paharganj, Delhi. It is not the case of the prosecution that no public person was available on the spot. In the absence of the examination of the victim, the testimony of the police witnesses needs corroboration from independent witnesses which is lacking in this case. The testimony of official witnesses does not find any corroboration from any independent source.
20.In case titled as Roop Chand Vs. State of Haryana reported as CC Cases 3 (HC), it was held as the police has failed to join independent witnesses in the investigation despite their availability and further failed to take action against those who refused to take part in investigation nor their names were noted down by the police, the FIR No. 52/2020 State Vs. Sabir Mohd Sheikh Page no. 7-10 ACMM-01/Central/15.05.2023 explanation of the police for not joining independent witnesses is an afterthought and liable to be rejected.
21.In the case of Sadhu Singh Vs. State of Haryana 2000 (2) CC Cases HC 73, the Court took note of the fact that public witnesses were not joined in investigation to acquit the accused.
22.In the case of Chanan Singh Vs. State,1986 Crl. Rev. No.720 (P&H) 94, it was held that it was obligatory on the part of the police to join independent witnesses and the statement of official witness that witnesses refused to join investigation was rejected as an afterthought.
23.In the cases of Gurbel Singh Vs. State of Punjab, 1991 Crl.Rev. No.504 (P&H) and Dhanpat Vs. State of Punjab, 2000 (1) CC Cases HC 52, it has been held that non-joining of independent witnesses is fatal to the prosecution case and accused is entitled to benefit of doubt.
24.In the instant case, no reasonable explanation has been offered by the prosecution for not joining the public witnesses also. This is the case where no efforts at all were made to join the public witnesses as is also clear from the testimony of witnesses examined by the prosecution. Thus, the non-joining of public witness when even the victim has not been examined causes a dent to the prosecution case. The onus was on the prosecution to remove the shadow of doubt which it failed to do so.
FIR No. 52/2020 State Vs. Sabir Mohd Sheikh Page no. 8-10 ACMM-01/Central/15.05.2023
25.It is cardinal principle of law 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 case of the prosecution should stand on its own legs. The benefit of doubt, if any, must go in favour of the accused. It is apt to refer to the following observation in the case of Sadhu Singh V/s State of Punjab 1997 (3) Crime 55:
"In a criminal trial, it is for the prosecution to establish its case beyond all reasonable doubts. It is for the prosecution to travel the entire distance from 'may have' to 'must have'. If the prosecution appears to be improbable or lacks credibility the benefit of doubt necessarily has to go to the accused."
CONCLUSION
26.In view of the above examination of the evidence and material available on record, it is observed that the prosecution has failed to prove the guilt of the accused of which the accused faced the trial. Therefore, accused, Sabir Mohd Sheikh, is hereby acquitted of the offence punishable u/s 4(a) DPT & MAT Act of which he faced the trial.
FIR No. 52/2020 State Vs. Sabir Mohd Sheikh Page no. 9-10 ACMM-01/Central/15.05.2023
27. The bonds accepted in terms of provision of section 437 Cr.P.C shall remain in force for a period of six months. Announced in the open Court today i.e. on 15.05.2023.
RAJANI Digitally signed by RAJANI RANGA RANGA Date: 2023.05.15 16:08:03 +0530 (RAJANI RANGA) ACMM-01(CENTRAL)/THC/DELHI 15.05.2023 FIR No. 52/2020 State Vs. Sabir Mohd Sheikh Page no. 10-10 ACMM-01/Central/15.05.2023