Delhi District Court
State vs . Mohd Iqbal on 25 June, 2018
IN THE COURT OF MS ANJANI MAHAJAN METROPOLITAN
MAGISTRATE02 (SOUTH DISTRICT), SAKET COURTS COMPLEX, NEW
DELHI
STATE Vs. MOHD IQBAL
FIR No. 794/08
U/s : 147/148/149/379/427/506/452 IPC
P.S. : Malviya Nagar
Date of Institution : 03.06.2009
Date on which case reserved for Judgment : 07.06.2018
Date of judgment : 25.06.2018
JUDGMENT
1.FIR No. of the case : 794/08
2.Date of the Commission : 17.11.2008
of the offence
3.Name of the accused : 1. Md. Iqbal,
: S/o Sh. Md Farooq,
: R/o H. No. 110, Hauz Rani,
: Malviya Nagar, New Delhi.
: 2. Noor Hasan,
: S/o Sh. Imtiyaz Ahmed,
: R/o H. No. 17/33/22, Sangam Vihar,
: New Delhi.
: 3. Ravinder Tyagi,
: S/o Sh. Harish Chand Tyagi,
: R/o H. No.227 A Dabwa Colony, Faridabad,
: Haryana.
4.Name of the complainant : Ms. Jyoti Sangwan,
: W/o Late Sh. Narender Pal Sangwan,
: R/o Flat No. 306, SectorA, pocket C,
: Vasant Kunj, New Delhi.
:
5.Offence complained of : U/s 147/148/149/379/427/506/452 IPC
6.Plea of accused : Pleaded not guilty
7.Final order : Accused persons are acquitted for the
: offences alleged.
FIR No. 794/08 State Vs. Mohd Iqbal and Ors. 1/8
BRIEF FACTS:
1. Briefly stated the case of the prosecution is that on 17.11.2008 at around 04:00 pm at B38, First floor, Shivalik, within the jurisdiction of PS Malviya Nagar, all the accused persons namely Md. Iqbal, Ravinder Tyagi and Noor Hasan alongwith their 60 associates in furtherance of their common object by forming an unlawful assembly committed house trespass in the aforesaid premises being used as an office and also damaged the furniture etc of the office and car of the complainant Ms. Jyoti Sangwan bearing no. DL3CAA5536 having made preparation for assaulting /causing hurt to the complainant and also threatened her with dire consequences and thereby accused persons committed the offences punishable U/s 452/427/506/147/148/149 IPC.
2. FIR No. 794/08 was registered at police station Malviya Nagar on the basis of aforesaid allegations.
3. After completion of investigation charge sheet under sections 147/148/149/379/427/506/452 IPC was filed before the court on 03.06.2009.
4. On the basis of prima facie material available on the record charge for the offence punishable under section 452/427/506/147/148/149 IPC was framed against all three accused persons to which they pleaded not guilty and claimed trial on 15.02.2013.
THE TRIAL PROCEEDINGS:
5. In order to establish its case, the prosecution has examined six witnesses.
6. PW1 was the complainant Ms. Jyoti Sangwan. She exhibited her complaint as Ex. PW1/A, seizure memo of broken glasses and stones as Ex. PW1/B, search memos of accused persons namely Ravinder Tyagi, Noor Hasan and Mohd Iqbal as Ex. PW1/C to Ex.PW1/E, personal search memos of accused persons as Ex. PW1/F FIR No. 794/08 State Vs. Mohd Iqbal and Ors. 2/8 to Ex. PW1/H, superdarinama as Ex. PW1/I, four photographs of the vehicle bearing No. DL3CAA5536 Ex. P1 to Ex.P4 (colly), two photographs of the house of complainant as Ex. P5 and Ex. P6 (colly)and broken glasses, broken tail light of the vehicle and pieces of cemented stone as Ex. P1 (colly).
7. PW2 was the mother of the complainant Smt. Maya Sangwan.
8. PW3 was the Duty Officer (DO) ASI Kamal Singh who received a rukka and got the FIR registered. He exhibited the copy of the FIR as Ex. PW3/A and his endorsement on rukka as Ex. PW3/B.
9. PW4 was HC Sheo Ram. He exhibited the seizure memo of one Ford Ikon car bearing no. DL3CAA5536 as Ex. PW4/A and seven photographs of the spot/office of complainant as Ex. N1 to Ex. N7.
10. PW5 was Retired SI Shri Ram who accompanied the IO and Ct. Sheo Ram to the spot i.e. B38, Shivalik, Malviya Nagar.
11. PW6 was the Investigating Officer (IO) of the case Inspector Ajay Kumar. He exhibited the site plan as Ex. PW6/A and disclosure statement of accused Ravinder Tyagi as Ex. PW6/B.
12. Prosecution evidence was closed on 28.04.2018. After conclusion of prosecution evidence, the Statement of Accused persons (SA) under section 313 r/w section 281 Cr.P.C was recorded on 07.05.2018. Accused persons did not seek to lead defence evidence.
FINAL ARGUMENTS:
13. Final arguments were thereafter advanced by Ld. APP for the State and Ld. counsel for the accused persons.
REASONS FOR DECISION:
14. The prosecution's main witnesses are PW1 Ms. Jyoti Sangwan/the complainant and PW2 Ms. Maya Sangwan/the mother of the complainant. It is required to be seen whether the testimonies of these witnesses are cogent and corroborative of FIR No. 794/08 State Vs. Mohd Iqbal and Ors. 3/8 the prosecution's case so as to bring home the guilt of the accused persons for the alleged offences.
15. The original complaint/tehrir proved by the complainant/PW1 Ms. Jyoti Sangwan is Ex. PW1/A. In Ex. PW1/A, the complainant/PW1 narrated that she was alone in the office with the office boy and the water supply had been stopped by the owner of the second floor so she had asked her office boy to request them to open the water connection from the terrace. It is further stated therein that the office boy was abused and threatened by some men sitting on the second floor and the four men tried to forcefully enter the office and get physical with her and threatened her not to call the police.
16. The complainant stated further in the complaint that she called her family members for her security and when her mother and brother tried to enter her office, they were physically injured by Mr. Tyagi who sat on the second floor of the same building. Further, they called 60 rebellious men to create riots in the office and those 6070 men started throwing stones and sticks on the building and completely destroyed the complainant's car make Ford Ikon in front of the police (PCR van). The complainant stated that there were only four members present in her office against those 60 odd rebellious men and they completely damaged the office belongings and building and the belongings of the car including cash of Rs. 1,60,000/ and the complainant's brother's embassy papers were stolen.
17. During trial, the complainant/PW1 Ms. Jyoti Sangwan testified that on requesting Iqbal for water supply the persons started misbehaving with her and her office boy who had gone to request regarding the same. PW1 deposed that she was alone in her office and they came down and started abusing and misbehaving and banging on the office door asking her to come out. PW1 further testified that out of fear she called her mother and brother to the office. Both the accused persons Iqbal and Tyagi came down and started abusing and shouting and tried to hit her brother when FIR No. 794/08 State Vs. Mohd Iqbal and Ors. 4/8 her mother and brother arrived and stopped him from going to the first floor and threatened him not to call the police. PW1 also deposed that once PCR came both the accused called around 5060 people to threaten them and said that they would kill the complainant and further, in the presence of PCR the people who were called started throwing stones on the first floor balcony, abused the complainant and her family members and damaged the car which contained Rs. 1,60,000/ and official papers of the Embassy of the brother of the complainant.
18. Thus, during trial suddenly the complainant/PW1's version regarding the initial number of persons allegedly involved changed inexplicably from four to two. Also noteworthy is the fact that the investigating agency apprehended only three persons and there is no whisper in the testimony of the IO/PW6 Inspector Ajay Kumar regarding the efforts made by him to trace out the fourth main accused if any.
19. Coming back to the testimony of the complainant/PW1, she did not assign any specific role to the accused Noor Hasan. It is also pertinent to note that though the charge for the offence of house trespass after preparation to commit offence punishable U/s 452 IPC has been framed against the accused persons however the complainant/PW1 only testified that the accused Iqbal and others came downstairs and started abusing and misbehaving and banging on the door of her office asking her to come out. Although in the original complaint Ex. PW1/A the complainant stated that the persons tried to forcibly enter her office and get physical with her but no such allegation was made by the complainant/PW1 during trial.
20. Further, in the complaint Ex. PW1/A the complainant stated that her mother and brother were physically injured by Tyagi but during trial the version changed to Iqbal and Tyagi having tried to hit her brother and stopped him from going to the first floor. Strangely, PW2 Ms. Maya Sangwan did not depose that the accused persons injured her or her son and thus PW2 did not support this allegation of the complainant/PW1 and rather deposed that when she reached the office of the FIR No. 794/08 State Vs. Mohd Iqbal and Ors. 5/8 complainant she saw 6070 persons gathered near her office on the ground floor on the road and the mob threw stones and bricks at the office of her daughter (the complainant) even in the presence of the police. PW2 testified that she alongwith the police officials went inside the office of her daughter and found bricks and stones scattered inside the office and the accused persons had also broken the glass of the car and were part of the mob.
21. PW2 did not depose about theft of cash amount and official documents from the car and in fact even PW1/complainant did not depose that it was the accused persons specifically who stole the articles alleged. Thus the testimonies of PW1/complainant and PW2 do not corroborate each other in material particulars. There is no other independent public witness who has been examined by the prosecution in this case and the only independent public witness cited in the list of witnesses by the prosecution namely Sh. Manikant Swami remained untraceable during trial. Even the brother of the complainant namely Sh. Arun Sangwan who was cited as a witness in the list of witnesses remained untraceable during trial and both these witnesses were dropped from the list of witnesses.
22. In fact, from the testimonies of PW5 Retired SI Shri Ram and PW4 ASI Sheo Ram there is a doubt which arises regarding the very presence of PW2 Ms. Maya Sangwan at the spot since according to PW4 ASI Sheo Ram, when he alongwith the IO and other police officials reached the spot on receiving the DD No. 16A, the complainant was present at the spot alongwith one office boy. PW5 Retired SI Shri Ram deposed that when they (he and other police officials) reached the spot, the complainant was present there and no family member of her's was present. The IO/PW6 Inspector Ajay Kumar testified in cross examination that the brother of the complainant was also present at the spot but he did not remember whether the mother and brother of the complainant were present at the spot before his arrival. The police officials have thus not confirmed the presence of the mother of the complainant i.e. FIR No. 794/08 State Vs. Mohd Iqbal and Ors. 6/8 PW2 at the spot when they arrived there so apart from the testimony of PW2 being contradictory to that of the complainant, there is also a suspicion regarding the very presence of PW2 at the spot.
23. According to the complainant/PW1 as well as PW2 the mob was pelting stones at the office of the complainant even in the presence of the PCR officials but the prosecution has not cited the PCR officials as witnesses. The IO/PW6 Inspector Ajay Kumar deposed in his crossexamination that before his reaching at the spot the PCR van was already present there but he admittedly did not record the statements of the PCR officials for reasons best known to him. An adverse inference must be drawn against the prosecution for not producing the PCR officials as witnesses who could have been material witnesses for the prosecution's case.
24. Furthermore the case properties Ex. P1 (colly) comprising broken glass, broken tail light of vehicle and pieces of cemented stone though were deposed by the prosecution's witnesses PW4 ASI Sheo Ram, PW5 Retired SI Shri Ram and PW6 Inspector Ajay Kumar as having been sealed with the seal of AK yet the case properties when produced in the Court during trial were in unsealed condition. The possibility of the case property being tampered with cannot be ruled out.
25. In so far as the question of rioting and unlawful assembly is concerned, there is absolutely no evidence to connect the accused persons with the alleged mob if any. The relevant call detail records of the accused persons have not been placed on record to show any calls made by the accused persons to such 5060 persons at the relevant date and time so as to gather them at the spot. Admittedly, the IO and the other police officials are not the eye witnesses of the alleged incident of stone pelting and rioting and the IO did not find any alleged mob member at the spot. There is no independent witness examined by the prosecution to establish that the mob members were called by the accused persons to the spot.
26. There is no cogent evidence on record to link the accused persons with FIR No. 794/08 State Vs. Mohd Iqbal and Ors. 7/8 the alleged offences of rioting, unlawful assembly and mischief. The complainant's testimony is not reliable and trustworthy and the very presence of the complainant's mother (PW2) at the spot is doubtful. There is no other independent eye witness examined by the prosecution, the case property was produced in unsealed condition during trial and there is no evidence of accused persons having summoned a large number of persons at the spot to form an unlawful assembly for the purpose of rioting. The complainant made no allegation of forcible trespass after preparation to commit offences in her testimony so the offence U/s 452 IPC as such is not proved.
27. The benefit of the doubt would have to be extended to the accused persons. Accordingly, the accused persons namely Md. Iqbal, Noor Hasan and Ravinder Tyagi are acquitted for the offences u/s 452/427/506/147/148/149 IPC. The previous bail bonds of the accused persons shall remain in force for a further period of six months from today. Nothing further remains in the case, therefore file be consigned to record room after necessary compliance. Digitally signed by ANJANI ANJANI MAHAJAN MAHAJAN Date: 2018.06.25 16:22:10 +0530 Announced in the Court (ANJANI MAHAJAN) on 25.06.2018 MM02(SD)/25.06.2018 Certified that this judgment contains 8 pages and each page bears my signatures.
Digitally signed by ANJANI ANJANI MAHAJAN
MAHAJAN Date: 2018.06.25
16:22:21 +0530
(ANJANI MAHAJAN)
MM02(SD)/25.06.2018
FIR No. 794/08 State Vs. Mohd Iqbal and Ors. 8/8