Delhi District Court
State vs . : Heera Sahni on 18 February, 2021
IN THE COURT OF RISHABH KAPOOR:
METROPOLITAN MAGISTRATE - 03 (CENTRAL)
TIS HAZARI COURTS: DELHI
State Vs. : Heera Sahni
FIR No : 48/2019
U/s : 283/290 IPC
P.S. : I.P. Estate
JUDGMENT:
1. Criminal Case No. : 11558/2019
2. Date of commission of offense : 15.03.2019
3. Date of institution of the case : 23.03.2019
4. Name of the complainant : State
5. Name of accused, parentage & : Heera Sahni S/o Sh. Rameshwar Sahni, R/o H.No. 222, Gali
No.3, Main Road Mandawali, Delhi
6. Offense complained or proved : 283/290 IPC
7. Plea of the accused : Pleaded not guilty
8. Date on which order was reserved : Not reserved
9. Final order : Acquitted
10. Date of final order : 18.02.2021
FIR No. 48/2019 State Vs. Heera Sahni
The accused is facing trail for offences u/s 283/290 IPC. The genesis of the prosecution story is as under:
1. That on 15.03.2019 at about 01:40 pm behind Hans Bhawan, near Wine Shop, ITO, Delhi, the accused Heera Sahni had placed rehri for selling pakodi on the road/pavement and thereby caused obstruction and nuisance to the passerby and had committed offences u/s 283/290 IPC.
2. After registration of the case FIR against accused, the criminal law was set into motion and the investigation began. After completion of investigation the chargesheet came to be filed against accused for the alleged offences.
3. The cognizance of the offences was taken by the Ld. Predecessor Court and after procuring the presence of accused through instrumentality of Court, provisions of section 207 Cr.P.C. were complied with and thereafter on finding sufficient grounds to proceed against accused, notice of accusation for offences u/s 283/290 IPC was framed and served upon accused, to which he pleaded not guilty and claimed trial.
4. In order to establish guilt of the accused, prosecution has examined two witnesses. The testimonies of the material prosecution witnesses are as follows:
5. PW1 HC Sanjay Sharma is the IO, who deposed that on 15.03.2019, when he alongwith Ct.
Dev Varat was on patrolling duty, then at about 01:40 pm behind Hans Bhawan, near Wine Shop, ITO he saw that accused was selling pakodies on his rehri at foot path. He further deposed that due to act of accused, the obstruction was caused to the passerby who were crossing the path. He deposed that the despite direction to remove the rehri, accused did not pay any heed and matter was reported to SHO PS I.P. Estate. Thereafter, the rukka Ex.PW1/A was prepared and same was sent for registration of FIR against accused. During investigation, the site plan Ex.PW1/B was prepared and after registration of FIR, original rukka was returned by Ct. Dev Varat after registration of FIR Ex.PW1/C. The photographs Ex.P1 was also clicked during investigation and certificate u/s 65B Indian Evidence Act Ex.PW1/D was also issued. In his cross examination this witness admitted that the rehri of accused was not seized by him nor did he record the names of the passerby, who were asked to join the proceeding at the spot.
FIR No. 48/2019 State Vs. Heera Sahni
6. PW2 Ct. Dev Varat deposed on the same lines as PW1. He also deposed that IO had asked passerby to join the investigation but they denied and went without disclosing their names and addresses. In is cross examination, he also admitted that the names of the passerby who were asked to join the investigation, were not recorded by the IO.
7. The accused admitted that contents of FIR and certificate u/s 65B Indian Evidence Act vide separate statement and the witness qua such document was dropped from the list of witness. The prosecution evidence was thereafter closed as the list of witnesses was exhausted.
8. Thereafter, the statement of accused u/s 281 r/w 313 Cr.P.C. was recorded wherein all the incriminating circumstances, were put to accused. The accused submitted that he is innocent and did not commit the alleged offences of obstruction and public nuisance. The accused did not lead any evidence in defence.
9. In order to bring home the guilt of the accused it was incumbent on the part of prosecution to establish the essential ingredients of offences u/s 283/290 IPC.
10. Section 283 IPC lays down punishment for an act of danger or obstruction in public way or line of navigation. This provision provides that whoever by doing any act, or by omitting to take order with any property in his possession or under his charge, causes danger, obstruction or injury to any person in any public way or public line of navigation is liable to be punished with fine extending up to Rs.200/.
11. Whereas, Section 290 prescribes the punishment for offence of public nuisance. Public nuisance is however defined u/s 268 IPC. It connotes any act or an illegal omission, causing any common injury, danger or annoyance to the public or to the people in general who dwell or occupy the property in the vicinity, or which must necessarily cause injury, obstruction, danger or annoyance to persons having occasion to use any public right.
12. Ld. APP for the State has submitted that the prosecution has established the offences of public nuisance and obstruction in a public way by accused, beyond all reasonable doubts.
FIR No. 48/2019 State Vs. Heera Sahni Therefore, the accused deserves to be convicted for the alleged offences. Per contra, Ld. LAC for accused has contended that the IO has not opted to join any public witness to prove the commission of alleged offences by accused and the whole case of prosecution is based on testimonies of interested witnesses. Therefore, the benefit of doubt must go in favour of accused and he deserves to be acquitted for the alleged offences.
13. The perusal of rukka Ex.PW1/A clearly reflects that alleged occurrence pertains to 15.03.2019 at around 01:40 pm. As per the contents of rukka, the accused has obstructed public way and caused nuisance by placing his rehri on the foot path, which was being used by the passerby. The contents of the rukka further reflects that the substance of allegations against accused is causing of alleged obstruction in the right to way of the passerby who were traveling across the foot path. Admittedly, the alleged occurrence pertains to the broad day light and there were public persons also present at or near the vicinity of occurrence. The IO has however not associated any such public person to substantiate the allegations against the accused. As per the version of PW2, the public persons refused to join the proceedings and went without disclosing their names and addresses. PW1 also deposed that he did not record the names of the public persons who were crossing the foot path at the relevant time. However, this version of IO does not inspire confidence as he was well within his power to initiate the proceeding u/s 188 IPC against such public persons who had refused to join the investigation without a reasonable cause. The IO has however, not noted down the names of such public persons who could have been the crucial witnesses to establish the case of prosecution. These facts cast grave doubts on the prosecution story. The IO has also placed on record alleged photographs Ex.P1 showing the offence of obstruction and nuisance caused by the accused. In this regard, it is pertinent to mention that this photograph has not been proved in accordance with law as neither its negatives have been placed on record nor the provisions of section 65B Indian Evidence Act have been complied with by the IO. Therefore, photograph Ex.P1 cannot be read in evidence to establish guilt of the accused. The testimony of PW2 also could not satisfactorily explain the fact of non associating the independent public witnesses during the proceedings. Even, there is no justification as to why the IO has not seized the alleged rehri of the accused which was used in the commission of alleged offences. These facts further casts serious doubts on the whole prosecution story and makes the defence version more probable.
FIR No. 48/2019 State Vs. Heera Sahni
14. In view the discussion made above as it emerges that the whole case of prosecution is based on the testimonies of the interested witnesses, therefore, I am not hesitant to conclude that the prosecution has failed to establish beyond all reasonable doubts that on the given date, time and place, the accused had placed his rehri on pavement and caused obstruction and nuisance to the passerby, therefore, the accused deserves to be acquitted for the offences with which he has been charged. The accused is accordingly acquitted for offences u/s 283/290 IPC.
15. The personal and surety bonds, furnished by the accused at the commencement of trial stands canceled and discharged respectively. Case property if any, be disposed of after expiration of period to assail this Judgment and in case of appeal as per the directions of Ld. Appellate Court. The bail bonds furnished by the accused u/s 437A Cr.P.C. shall remain in force for a period of six months or till the period to assail this Judgment expire (which ever is earlier). Documents, if any be returned to its rightful owner as per rules and endorsement, if any be canceled. Stands disposed off.
Announced in the open court
on 18th day of February, 2021 (RISHABH KAPOOR)
MM03(Central),THC,Delhi
FIR No. 48/2019 State Vs. Heera Sahni