Delhi District Court
State vs . Binta on 25 August, 2022
1/8
IN THE COURT OF MS NEETI SURI MISHRA
ACMM (NORTH): ROHINI COURTS:NEW DELHI
Cr. Case no. 5579/21
STATE Vs. Binta
FIR NO. 308/21
PS Mahendra Park
Date of Institution of case: 07.07.2021
Date of Judgment reserved: 25.08.2022
Date on which Judgment pronounced:25.08.2022
JUDGMENT
Unique ID no. of the case : DLNT-02-007059-2021
Date of commission of offence : 24.04.2021
Name of complainant : HC Devender Kumar
Name and address of accused : Binta S/o Shyam,
R/o Jhuggi No B-48, Sarai Pipalthala, Delhi.
Offence complained of : u/s 188 IPC
Plea of accused : Pleaded not guilty
Date of reserving the order: 25.08.2022
Date of order : 25.08.2022
Final order : Acquitted
BRIEF REASONS FOR DECISION
1. Brief facts of the case as per prosecution are that on 24.04.2021 at about 7.30 pm the accused Binta S/o Shyam was found roaming around near B-Block Jhuggi, Sarai Pipalthala, Delhi, within the jurisdiction of PS Mahendra Park, Delhi, without wearing any type of mask on his face, during the rampant spread of covid 19 pandemic and he violated the curfew order no. 1013-1040/ACP/Shalimar Bagh, Delhi, dated 19.04.2021 of Sh. Sanjay Drall, the then ACP, Shalimar Bagh, Delhi, regarding FIR No. 308/21 PS Mahendra Park State Vs. Binta 2/8 imposition of section 144 Cr.P.C. and intentionally disobeyed the direction of concerned authority. On these allegations, prosecution alleges that the accused has committed offence punishable u/s 188 IPC.
2. After investigation, charge sheet was filed against the accused. The accused was summoned and thereafter copy of charge sheet was supplied to him in compliance of Section 207 Code of Criminal Procedure (hereinafter called as Cr.P.C.) and notice u/s 188 IPC was served upon the accused to which he pleaded not guilty and claimed trial.
3. The prosecution was thereafter given opportunity to prove the accusation against the accused. The prosecution has examined the following witnesses in support of the case:-
PW-1 HC Mohit Kumar deposed that on 24.04.2021, he was posted as Head Constable at PS Mahendra Park. On that day, he alongwith Ct. Manjeet was on the patrolling duty for checking and imposition of curfew order, in view of the promulgation of the weekend curfew order no. 1013-1040/ACP/Shalimar Bagh, Delhi, dated 19.04.2021 of Sh. Sanjay Drall, the then ACP, Shalimar Bagh, Delhi.
During patrolling at about 7.30 PM, when they reached near B-Block Jhuggi, Sarai Peepal Thala, Delhi, they saw a person, whose name later on was revealed as Binta S/o Shyam, who was not wearing any mask and who was also selling eggs on patri. Accused Binta was correctly identified by the witness and he violated the said curfew order by running his business of selling eggs on patri. Thereafter, witness prepared tehrir Ex PW-1/A and handed over to Ct. Manjeet for registration of FIR. Accordingly, Ct. Manjeet went to the PS, got the FIR registered through DO and after FIR No. 308/21 PS Mahendra Park State Vs. Binta 3/8 returning at the spot he handed over the copy of FIR and original tehrir to the witness. Thereafter, accused was arrested vide arrest memo Ex PW-1/B. Accused was released on bail upon furnishing bail bonds by him. Witness recorded statement of Ct. Manjeet. The curfew order no. 1013-1040/ACP/Shalimar Bagh, Delhi, dated 19.04.2021 of Sh. Sanjay Drall, the then ACP, Shalimar Bagh, Delhi, was proved as Ex P-1. Later on, upon his request application and after perusing the case file, concerned ACP filed the complaint u/s 195 Cr.P.C., which was proved as Ex P-2.
PW-2 Ct. Praveen deposed that on 24.04.2021, he was posted as Constable at PS Mahendra Park. On that day, he alongwith HC Devender was on the patrolling duty for checking and imposition of curfew order, in view of the promulgation of the weekend curfew order no. 1013-1040/ACP/Shalimar Bagh, Delhi, dated 19.04.2021 of Sh. Sanjay Drall, the then ACP, Shalimar Bagh, Delhi. During patrolling at about 7.30 PM, when they reached near B-Block Jhuggi, Sarai Peepal Thala, Delhi, they saw a person, whose name later on revealed as Binta S/o Shyam, who was not wearing any mask and who was also selling eggs on patri. Accused Binta was correctly identified by the witness and he violated the said curfew order by running his business of selling eggs on patri. Thereafter, IO prepared tehrir and handed over to him for registration of FIR. Accordingly, he went to the PS, got the FIR registered through DO and after returning at the spot, he handed over the copy of FIR and original tehrir to IO.
Thereafter, accused was arrested vide arrest memo Ex PW-1/B. Accused was released on bail upon furnishing bail bonds by IO. IO recorded statement of witness.
4. The accused admitted following documents in terms of Section 294 Cr.P.C.:-
FIR No. 308/21 PS Mahendra Park State Vs. Binta 4/8 ➢ The curfew order no. 1013-1040/ACP/Shalimar Bagh, Delhi, dated 19.04.2021 of Sh. Sanjay Drall, the then ACP, Shalimar Bagh, Delhi, Ex P1.
➢ Complaint u/s 195 Cr.P.C., the same is Ex P-2.
➢ FIR No. 308/21, PS Mahendra Park, the same is Ex P-3.
➢ Endorsement of DO, the same is Ex P-4.
➢ Certificate u/s 65-B of Indian Evidence Act, the same is Ex P-5.
➢ Certificate of Duty Officer, the same is Ex P-6.
5. After completion of prosecution's evidence PE was closed and statement of accused was recorded u/s 313 Cr.P.C. where he stated that false FIR has been registered against him, however, accused refused to lead any defence evidence. Hence, the matter was listed for final arguments.
6. Final arguments were heard from both Ld. APP for the State and Ld. LAC and complete record of the case was perused thoroughly.
7. I have heard the learned APP for the State and the learned counsel for the accused and have also carefully perused the record of the case.
8. Reminiscing the cardinal principles of criminal jurisprudence which form the foundation of every criminal trial, it would be apposite to mention here those golden FIR No. 308/21 PS Mahendra Park State Vs. Binta 5/8 rules/ principles, which are:-
(a) That in every criminal trial an accused is presumed to be innocent until proven guilty;
(b) That in every criminal trial, prosecution is duty bound to prove the case against the accused beyond all reasonable doubts; and
(c) That prosecution has to stand on its own legs and cannot derive any benefit/ advantage whatsoever, from the weaknesses in the defence of the accused.
9. In the present case, the accused Binta has been indicted for the offence punishable u/s 188 IPC for acting in contravention of curfew order no. 1013- 1040/ACP/Shalimar Bagh, Delhi, dated 19.04.2021 of Sh. Sanjay Drall, the then ACP, Shalimar Bagh, Delhi, regarding imposition of section 144 Cr.P.C. as he was found roaming around without wearing any kind of mask to cover his face at the time when the Covid 19 pandemic was a rife disease.
10. In the present case, the testimonies of PW-1 and PW-2 show that both of them were on patrolling duty on the date of the incident. But neither of the witnesses has proved on record any DD entry to show or to prove that they were on patrolling duty on the said date. Regarding the value of making DD entries, it is worth mentioning that as per Chapter-22 Rule 49 of the Punjab Police Rules it is necessary to record DD entry of arrival and departure of the police officials. Chapter 22 Rule 49 of the PP Rules, 1934 is reproduced as under:
" 22.49 Matter to be entered in Register no.II- the following matters shall, amongst others, be entered:- The hour of arrival and departure on duty at or from a police station of all enrolled police officers of whatever rank, whether posted at FIR No. 308/21 PS Mahendra Park State Vs. Binta 6/8 the police station or else where, with a statement of the nature of their duty. This entry shall be made immediately on arrival or prior to the departure of the officer concerned and shall be attested by the latter personally by signature or seal. Note:- The term police station will include all places such as police lines and police posts where Register no. II is maintained."
11. At this juncture it would be relevant to refer to the decision of Hon'ble Delhi High Court in Ratan Lal vs State, 1987 (2) Crimes 29. The Hon'ble High Court observed:-
"Where in it has been observed that if the investigating agency deliberately ignores to comply with the provisions of the act the court will have to approach their action with reservations. The matter has to be viewed with suspicion if the provisions of law are not strictly complied with and the least that can be said is that it is so done with an oblique motive. This failure to bring on record, the DD entries creates a reasonable doubt in the prosecution version and attributes oblique motive on the part of the prosecution."
In the present case the abovesaid provision has not been complied with by the prosecution. A reasonable doubt is created in the mind of the court with regard to the proceedings conducted by the IO and about the prosecution's case against the accused.
12. Further more the police officials did not click any photographs of the accused roaming around without wearing mask, to substantiate the allegations against him. Besides this no other documentary evidence was brought on record to show that the accused was actually present at the spot or was not following the guidelines issued by FIR No. 308/21 PS Mahendra Park State Vs. Binta 7/8 the authorities. This lapse on the part of the police authorities creates a reasonable doubt in the investigation conducted by the police, thereby making the prosecutions case highly doubtful. In view of the facts and circumstances of the present case the decision of Hon'ble Supreme Court titled as S.L. Goswami, vs State of M.P, reported as 1972 Cri.L. J 511 (Supreme Court) is pertinent to be mentioned. The Hon'ble Supreme Court in the said case observed:-
"... In our view, the onus to proving all the ingredients of an offence is always upon the prosecution and at no stage does it shift to the accused. It is no part of the prosecution duty to some how hook the crook. Even in cases where the defence of the accused does not appear to be credible or is palpably false that burden does not become any less. It is only when this burden is discharged that it will be for the accused to explain or controvert the essential elements in the prosecution case, which would negative it. It is not however for the accused even at the initial stage to prove something which has to be eliminated by the prosecution to establish ingredients of the offence with which he is charged, and even if the onus shifts upon the accused and the accused has to establish his plea, the standard of proof is not the same as that which rests upon the prosecution..."
13. The onus to prove the guilt of the accused was entirely on the prosecution. But from the foregoing discussion on the relevant, material and crucial aspects, it has surfaced that prosecution's case suffers from many a shortcomings, for which the benefit of doubt ought to be given to the accused. Therefore, in my view the accused cannot be convicted for the offence of Section 188 IPC as prosecution has failed to prove its case beyond all reasonable doubts.
FIR No. 308/21 PS Mahendra Park State Vs. Binta 8/8
14. Therefore, in light of the facts, circumstances and evidence, the accused Binta is acquitted for the offence of Section 188 IPC.
File be consigned to record room.
ANNOUNCED IN THE OPEN COURT On 25th day of August 2022 (NEETI SURI MISHRA) A.C.M.M. (NORTH)/ROHINI COURTS DELHI (This judgment contains 08 pages and each pages have been signed by undersigned) FIR No. 308/21 PS Mahendra Park State Vs. Binta