Delhi District Court
State vs . Ashfakan on 22 April, 2022
IN THE COURT OF SHRI NITISH KUMAR SHARMA
METROPOLITAN MAGISTRATE03, NORTHEAST
KARKARDOOMA COURTS, DELHI
Presided by Nitish Kumar Sharma
F.I.R. No. : 212/2004
Police Station: Khajuri Khas
State Vs. Ashfakan
U/S 186/332/353 IPC
(a) Case ID number/CR No. : 463627/2015
(b) Date of commission of the : 03.06.2004
offence
(c) The name of the complainant : Constable Ram Phool
No.1527/NE, PS Khajuri
Khas, Delhi.
(d) The name of the accused, : Mrs. Ashfakan W/o late
parentage and residence Nayeem Khan, R/o H.No.
1057, A Block, Gali No.23,
Shri Ram Colony, Delhi.
(e) The offence complained of : Under Section 186/332/
353 IPC
(f) The plea of the accused : Pleaded not guilty
(g) The final order : Acquitted.
(h) The date of such order : 22.04.2022
Challan was filed on: 28.07.2004
Final arguments were heard on: 22.04.2022
Judgment is announced on: 22.04.2022
FIR No. 212/2004 State Vs. Ashfakan PS: Khajuri Khas Page no. 1 of 14
JUDGMENT
FACTUAL BACKGROUND
1. Pithily put, the case of the prosecution is that accused was selling watermelons on a rehri causing obstructions in the traffic and when Ct. Ram Phool asked her to remove the rehri the accused misbehaved and manhandled the complainant. Further, the complainant's name plate was broken and Ct. Rakesh Kumar saved the complainant from the clutches of accused and in the scuffle, the accused caused hurt to the complainant. Thus, it is alleged by prosecution that the accused voluntarily obstructed Ct. Ram Phool in discharge of his public functions & thereby accused committed offences punishable under Section 186/332/353 IPC. Therefore, the present FIR bearing No. 212/2004 dated 03.06.2004 under Section 186/332/353 IPC was registered against the accused at P.S. Khajuri Khas, place of incident being First Pusta, Shriram Colony, Khajuri Khas, Delhi.
2. After completion of investigation, charge sheet was filed against the accused under Section 186/332/353 IPC on 28.07.2004, cognizance of offence was taken. Accused was summoned and on her appearance, copy of charge sheet was supplied to the accused in compliance of Section 207 Cr.P.C.
PROCEEDINGS BEFORE COURT
3. Thereafter, vide order dated 18.10.2005, charge for FIR No. 212/2004 State Vs. Ashfakan PS: Khajuri Khas Page no. 2 of 14 committing offence punishable u/s 186/332/353 IPC was framed by Ld. Predecessor against the accused to which she pleaded not guilty and claimed trial.
DEPOSITION OF PROSECUTION'S WITNESSES:
4. In order to prove its case, the prosecution has examined 5 witnesses in total. IO could not be examined by prosecution as he expired during the pendency of trial and PW Ct. Saroj was dropped from the list of witness as she remained unserved.
5. PW1 Constable Mubarika Khatoon is the police witness, who deposed that on 03.06.2004, Investigating Officer (IO) had taken the name plate of Ct. Ram Phool in possession which was broken in two pieces and same was kept in a pullanda and sealed with seal of MS. She further deposed that accused was arrested and personally searched by the IO and rehri was also taken into possession by IO vide Ex.PW1/B. The witness correctly identified accused in the court.
This witness was crossexamined by learned defence counsel and stated that the information was received at 12:00 noon. There were 50/60 persons gathered at the spot. She stated that she did not know if IO inquired any of these person. She remained at the spot for about 2025 minutes. None of the public persons accompanied them to PS. One Delhi home guard constable brought the rehdi to PS and she brought the accused. There were initially watermelon (Kharboojas) on the rehri but all these got unloaded before taking the rehdi to police FIR No. 212/2004 State Vs. Ashfakan PS: Khajuri Khas Page no. 3 of 14 possession. One of the relative of the accused came at the spot and Kharboojas were given to that person. She could not tell the name of that person. She stated that she had taken the accused to hospital at 2:00 PM by a TSR. She stated that she cannot tell the number of that TSR. IO paid the fare to the TSR Driver. But she could not tell the amount of fare. the medical examination of accused conducted in her presence. The case property was deposited in Malkhana in her presence. She did not know whether SHO was present at PS at that time or not. She stated that she cannot not tell about the ownership of rehdi and cannot say if constable Ram Phool demanded Rs.200/ per day from the accused and when accused refused to give that amount she was falsely implicated in this case. She denied the suggestions Ct. Ram Phool and IO misbehaved with the accused or that police did not get the medical examination conducted of the accused or that accused falsely implicated in this case and accused has made a complaint against police officials. She used to put his signature in English and in Hindi as well.
6. PW2 HC Ram Phool is the complainant/police official, who deposed that on 03.06.2004 at 12:00 noon at Khajuri Pusta, Delhi within the jurisdiction of PS Khajuri Khas and when he was going to PS via Khajuri Chowk Pusta Road he reached at first Dhalan Pusta Road and saw one lady was selling watermelon (Kharbuja) on her rehri and causing inconvenience to passerby and traffic. He asked her to remove the rehri but she did not pay any heed to him and did not remove the Rehri and continued selling watermelon. He again asked her to remove the Rehri and she became furious and started manhandling with him due to which his name plate was broken and he also sustained injury. He further stated that in the meantime Ct. Rakesh reached there and he FIR No. 212/2004 State Vs. Ashfakan PS: Khajuri Khas Page no. 4 of 14 escaped him from clutches of that lady and SI Mohd. Saleem alongwith lady Ct. Mubarika Khatoon and lady Ct. Saroj also reached there. He handed over his broken name plate to SI Mohd. Saleem/IO and narrated the whole story. IO recorded his statement Ex.PW2/A. Name plate was seized by IO and sealed with the seal of MS. IO also seized the Rehri after removing the watermelon and got conducted his medical examination at GTB hospital. The witness correctly identified the accused in the court.
This witness further stated on leading question being put that the correct name of that lady was Ishphakan (Ashfakan) and Ct. Rakesh Kumar belonged to DHG. He further stated that accused caused obstruction in discharging of official duty and IO prepared site plan at his instance which is marked as Mark X. IO arrested the accused in his presence. The accused correctly identified by witness and case property which is Ex.P1.
This witness was crossexamined at length by learned defence counsel and in which he stated that he did not receive any call in respect of hindrance in traffic from traffic helpline. He voluntarily stated that SHO had passed the instructions in respect of smooth traffic on pusta in his briefing. He deposed that he never noted down the name of any complainant who used to make aforementioned complaints. He did not know whether the traffic police personnel were deputed on the pusta or Khajuri Chowk. He voluntarily stated that no traffic police personnel was deputed on Dhalan No.1 Pusta road. He never asked any public person to join the investigation. Public persons were gathered on the spot. SI alongwith lady Ct. reached at the spot at about 12:10 PM. He did not know whether IO recorded statement of any public person. He stated that spot is public place. The children had taken the FIR No. 212/2004 State Vs. Ashfakan PS: Khajuri Khas Page no. 5 of 14 watermelon (Kharbuja) to their house but he did not know in which means they had taken the same. They reached GTB Hospital at about 1:00 PM by one auto but he could tell the number of that auto. He had paid the fare of that TSR but now he could tell the exact amount. He was discharged from hospital after 2:00 PM and reached directly at the spot but he did not know how long he remained at the spot. Case property was deposited in Malkhana by IO in his absence. He denied the suggestions that IO never seized the case property or that he and other police officials used to take Rs.200/ per rehri and since accused refused to pay the same, he falsely implicated her in present false case. He received a notice form Minority Commission and CVC in respect of complaint filed by the accused against him. He deposed that one complaint case bearing No. 1946/1 is also pending in the court of Ms. Suchi Laler, Ld. MM u/s 323/354/392/203/211/427/34 IPC against him and SI Mohd. Saleem but the Hon'ble court had taken cognizance against him u/s 354/384 IPC. He denied the suggestions that all the writing was done in PS or that he alongwith IO made a false against accused.
7. PW3 Inspector Vinita Tyagi is the police witness, who deposed that on 03.06.2004, she was posted at PS Khajuri Khas as SI and working as DO from 8:00 AM to 5:00 PM. She received a rukka sent by SI Salim through Lady Ct. Saroj and on the basis of the same, she recorded FIR No.212/2004, u/s 186/353/332 IPC, PS Khajuri Khas. Carbon copy of the same is Ex.PW3/A, bearing her signatures at point A. She made endorsement on rukka vide Ex.PW3/B, bearing her signatures at point A. She also brought the rojnamchana/daily diary register in the court.
FIR No. 212/2004 State Vs. Ashfakan PS: Khajuri Khas Page no. 6 of 14
8. PW4 Rakesh Kumar is the police witness, who deposed that on 03.06.2004, he was posted as constable in Delhi home guar at PS Khajuri Khas. On that day, his duty was at Khajuri Chowk from 8:00 AM to 2:00 PM. At about 12:00 PM, he came to know that the first slop (dhalan) of Khajuri Pusta, Shri Ram Colony, Delhi, one woman was quarreling with a police man. He could not tell the name and address of the person who informed him about the incident. Thereafter, he immediately reached the spot and saw that some ladies were abusing a police man namely Ram Phool. He did not know the name of the ladies who were quarreling with Ram Phool. He could not identify any lady who quarreled with Ram Phool. He could not identify the uniform etc. of police man. Police recorded his statement.
9. PW5 Dr. Parmeshwar Ram is the police witness, who deposed that MLC bearing No. A1970/2004 dated 03.06.2004 was prepared by Dr. Ankur Srivastava and he was acquainted with his handwriting and signatures as he had worked with him. The MLC is Ex.PW5/A, bearing signatures of Dr. Ankur Srivastava at point A.
10. Upon completion of prosecution evidence, statement of accused under Section 313 Cr.PC read with Section 281 Cr.PC was recorded on 22.04.2022. The accused denied the allegations and pleaded innocence and opted not to lead defence evidence. The court proceeded to hear the respective arguments of Ld. APP for State and Ld. counsel for accused.
FIR No. 212/2004 State Vs. Ashfakan PS: Khajuri Khas Page no. 7 of 14
11. I have heard the final arguments and meticulously perused the record.
ARGUMENTS:
12. It is argued on behalf of the defence that the prosecution has failed to make out any case against the accused and accused deserves to be acquitted. It is further argued that the accused is a daily wage earner and has been falsely implicated by police. It is further argued that primarily the case of the prosecution is that the accused had obstructed PW2 HC Ram Phool in discharging of his public functions and voluntarily caused hurt to him. It is argued that HC Ram Phool stated in his testimony that Ct. Rakesh Kumar escaped/saved him from the clutches of the accused whereas Ct. Rakesh Kumar in his testimony denied the suggestions of Ld. APP for State that he had saved HC Ram Phool from the lady/accused.
13. It is submitted that since testimony of PW2 do not find any corroboration by the testimony of PW4, it proves that version of the prosecution is cooked up and fabricated. It is vehemently argued that prosecution has failed to discharge its burden to prove that the accused had committed offences complained of.
14. On the other hand, Ld. APP for State argued that prosecution has established the guilt of accused beyond reasonable doubt through the testimony of PW1 and PW2. It was argued by Ld. APP FIR No. 212/2004 State Vs. Ashfakan PS: Khajuri Khas Page no. 8 of 14 for State that the testimony of prosecution witnesses goes on to prove beyond reasonable doubt that the accused caused obstruction in the discharge of public functions of PW2 and caused her to him.
15. I have considered arguments advanced by Ld. APP for State as well as Ld. Counsel for accused persons and have perused the entire material available on record carefully.
FINDINGS AND REASONS FOR DECISION
16. It is the case of the prosecution that the accused Ashfakan caused obstruction in the discharge of public function of HC Ram Phool. HC Ram Phool had asked her to remove rehri which was causing obstruction in the traffic. It is further the case of the prosecution that the accused manhandled HC Ram Phool and caused injuries to his person. It is further the case of the prosecution that Ct. Rakesh Kumar reached the spot and saved HC Ram Phool from the accused. It is the case of the prosecution that IO/SI Mohd. Salim alongwith Ct. Mubarika Khatoon reached the spot and HC Ram Phool had narrated the incident to him and the IO investigated the case as per the procedure. On 18.10.2007, charge u/s 186/332/353 IPC was framed against the accused. Accordingly, the accused had faced trial for the aforesaid offences.
17. It is settled proposition of law that prosecution is supposed to prove its case beyond reasonable doubt by leading reliable and cogent evidence. The burden to prove any criminal trial remains on the prosecution throughout the trial and never shifted on the accused. The FIR No. 212/2004 State Vs. Ashfakan PS: Khajuri Khas Page no. 9 of 14 accused is entitled to the benefit of every reasonable doubt in the prosecution story and such doubt entitles the accused to acquittal.
18. At this stage, it is relevant to refer Section 186/332/353 IPC which are as follows:
Section 186 IPC: Obstructing public servant in discharge of public functions. Whoever voluntarily obstructs any public servant in the discharge of his public functions, shall be punishable with imprisonment of either description for a term which may extend to three months, or with fine which may extend to five hundred rupees, or with both.
Section: 332 IPC: Voluntarily causing hurt to deter public servant from his duty. Whoever voluntarily causes hurt to any person being a public servant in the discharge of his duty as such from discharging his duty as such public servant, or in consequence of anything done or attempted to be done by that person in the lawful discharge of his duty as such public servant, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.
Section 353 IPC: Assault or criminal force to deter public servant from discharge of his duty. Whoever assaults or uses criminal force to any person being a FIR No. 212/2004 State Vs. Ashfakan PS: Khajuri Khas Page no. 10 of 14 public servant in the executing of his duty as such public servant, or with intent to prevent or deter that person from discharging his duty as such public servant, or in consequence of anything done or attempted to be done by such person in the lawful discharge of his duty as such public servant, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.
19. To prove the guilt of the accused for the offences, she is charged with in the present matter, it was incumbent upon the prosecution to prove the following facts:
(i) that the complainant was performing the public functions and accused obstructed complainant from discharging the public functions.
(ii) That accused voluntarily caused hurt/assaulted/used criminal force to the complainant/public servant to deter him from discharging his public functions.
20. PW1 stated in the testimony that the broken name plate of HC Ram Phool was taken into possession by the IO and accused was arrested vide arrest memo Ex.PW1/A. PW1 further deposed that one rehri was also taken into possession by the IO. Interestingly, PW1 deposed in examination in chief that arrest memo does not bear its signature as she used to sign in English and later said that arrest memo bears her signatures in Hindi.
FIR No. 212/2004 State Vs. Ashfakan PS: Khajuri Khas Page no. 11 of 14
21. PW2 stated that on the date of incident, he was on patrolling duty and at about 12:00 noon, he saw one lady selling watermelon on rehri and causing inconvenience to passerby and the traffic. The witness deposed that the accused manhandled him due to which his name plate was broken and he was saved from the clutches of the accused by Ct. Rakesh Kumar.
22. On the basis of complaint and the testimony of PW2, it is clear that the most important witness in the present matter was PW4 Ct. Rakesh Kumar who stated that he was posted as constable in Delhi Home Guard and on the date of incident, he came to know that one woman was quarreling with the police and thereafter he immediately reached the spot and saw that some ladies were abusing HC Ram Phool. However, the witness stated that he cannot identify any lady, who quarreled with HC Ram Phool and also cannot identify the uniform of police. As the witness turned hostile, Ld. APP for State was allowed to crossexamine him. The witness denied the suggestions that one lady had caught hold of collar of HC Ram Phool. He further denied the suggestions that he did not part that lady from HC Ram Phool. The witness stated that he does not know as to whether the name plate of HC Ram Phool was broken at that time or that he sustained injuries on his chest in the quarrel. The witness failed to identify the accused in the court and also failed to identify the broken name plate of HC Ram Phool.
23. In the instant case, apart from the complainant/PW2, the only eye witness to the incident was PW4 and he had turned hostile. The FIR No. 212/2004 State Vs. Ashfakan PS: Khajuri Khas Page no. 12 of 14 testimony of the complainant reveals that he was saved from the clutches of the accused by PW4 but the said fact is denied by PW4 in his testimony. There is no other eye witness to the incident, though it is stated by PW1 that there were 5050 persons gathered at the spot. However, despite the presence of public persons, none of them was examined or asked to join the investigation as stated by PW2. IO could not be examined by the prosecution as he expired during the course of trial.
24. After careful perusal of the testimony rendered in the present case, this court is of the opinion that the testimony of complainant, who is a police official is not at all supported by the other material witness. The testimony of PW2 is not corroborated on material particulars. PW4 who has been cited as a material witness to the incident resiled from his testimony and deposed that he did not save the complainant from the accused and that he could not identify the accused, the case property and also could not tell name of the accused. Nonexamination of IO and Ct. Saroj and turning of PW4/eye witness hostile, has created sufficient dent in the story of prosecution to give benefit of doubt to the accused. Also, testimony of PW1 does not inspire much confidence as she stated initially that arrest memo does not bear her signatures as she signs in English & then says the memo bears her signatures in Hindi.
25. It has been observed by the Hon'ble Punjab & Haryana High Court in a case of "Sadhu Singh Vs. State of Punjab 1997(3) Crime 55" as under: "In a criminal trial, it is for the prosecution to FIR No. 212/2004 State Vs. Ashfakan PS: Khajuri Khas Page no. 13 of 14 establish its case beyond all reasonable doubt. 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. The onus to prove the case against the accused was upon the prosecution and the prosecution must establish the charge beyond reasonable doubt. It is also a cardinal principle of criminal jurisprudence that if there is a reasonable doubt with regard to the guilt of the accused, he is entitled to benefit of doubt resulting in acquittal of the accused.
27. As a cumulative effect of the above said discussion, I am of the opinion that a reasonable shadow of doubt is cast upon the prosecution version. Accused is entitled to the benefit of doubt. Accused Ashfakan is accordingly acquitted of the charge framed for the offences punishable u/s 186/332/353 IPC levelled against her. Ordered accordingly.
Now, file be consigned to Record Room.
Digitally signed by NITISHAnnounced in the open court NITISH Location: Delhi Date:
on 22.04.2022 2022.04.22
17:32:31 +0530
(Nitish Kumar Sharma)
Metropolitan Magistrate03,
NorthEast, Karkardooma Courts, Delhi
FIR No. 212/2004 State Vs. Ashfakan PS: Khajuri Khas Page no. 14 of 14