Delhi District Court
State vs Abdul Karim Etc on 4 April, 2025
IN THE COURT OF MS. KANIKA AGARWAL, JUDICIAL
MAGISTRATE FIRST CLASS-03, NORTH-EAST, KARKARDOOMA
COURTS, DELHI
STATE VS. ABDUL KARIM & ORS.
F.I.R. No. : 320/05
Police Station: Khajuri Khas
U/S 143/147/186/149/332/353 IPC
(a) Case ID number/CR No. : 465347/2015
(b) Date of commission of the : 17.08.2005
offence
(c) Challan filed on : 23.12.2005
(d) The name of the complainant : Ct. Mukesh Kumar No.
165/NE, PS Khajuri Khas,
Delhi.
(e) Name of the accused, parentage : 1. Abdul Karim s/o
and residence Karimulla, R/o E-476, Gali
No. 5, Shri Ram Colony,
Delhi. (Proceedings abated
vide order dated 18.01.2017)
2. Iqbal s/o Akil Khan, r/o
E-314, Gali No. 4, Delhi.
3. Mohd. Irshad s/o Mahfooz
Khan, r/o E-415, Gali No. 4,
Shri Ram Colony, Delhi.
Digitally signed
by KANIKA
KANIKA AGARWAL
AGARWAL Date: 2025.04.04
15:11:11 +0530
FIR No.320/2005 State Vs. Abdul Karim etc. PS: Khajuri Khas Page no. 1 of 28
4. Imtiyaz s/o Gulam r/o
E-265, Gali No. 3, Shri Ram
Colony, Delhi. (Proceedings
abated vide order dated
25.02.2008)
5. Abdul Waris s/o Bashir
Ahmed, r/o E-115, Gali No.
1, Shri Ram Colony, Delhi.
(Proceedings abated vide
order dated 09.09.2019)
(f) Offence complained of : Under Section 143/ 147/ 186/
149/ 332/353 IPC
(g) Charge/Notice framed on : 27.03.2008
(h) The plea of the accused : Pleaded not guilty
(i) Final arguments heard on : 01.03.2025
(j) The final order : Acquitted.
(k) The date of such order : 04.04.2025
(l) State represented by : Sh. Mohit, Ld. APP for State.
(m) Accused represented by : Sh. M.M Hashmi, Ld.
Counsel for accused persons.
JUDGMENT
CASE OF PROSECUTION
1. The case of the prosecution is that on 17.08.2005 at about 11:10 PM opposite main gate, PS Khajuri Khas, Delhi, accused persons namely Abdul Karim, Iqbal, Mohd. Irshad, Imtiyaz and Abdul Waris had formed an unlawful assembly with the common object to overawe by criminal force the public servants in the exercise of their lawful powers FIR No.320/2005 State Vs. Abdul Karim etc. PS: Khajuri Khas Page no. 2 of 28 Digitally signed by KANIKA KANIKA AGARWAL AGARWAL Date: 2025.04.04 15:11:27 +0530 and voluntarily obstructed public servants Ct Mukesh and Ct Prem Chand in discharge of their public functions and also voluntarily caused hurt to Ct. Mukesh and Ct. Prem Chand while they were discharging their duties and thereby the accused persons have committed offences punishable under section u/s 143/147/186/149/332/353 of IPC. Upon the complaint of HC Mukesh, the present FIR bearing No.320/2005 dated 18.08.2005 under Section 143/147/186/149/332/353 IPC was registered against the accused persons at P.S. Khajuri Khas, Delhi.
COURT PROCEEDINGS
2. After completion of investigation, charge sheet was filed against the accused persons under Section 143/147/186/149/332/353 IPC on 23.12.2005, cognizance of offence was taken and copy of charge sheet was supplied to the accused persons in compliance of Section 207 Code of Criminal Procedure, 1973 (hereinafter, "CrPC"). .
CHARGE
3. Thereafter, vide order dated 27.03.2008, charge for committing offence punishable u/s 143/147/186/149/332/353 IPC was framed against the accused persons, to which, they pleaded not guilty and claimed trial. During the pendency of the case, accused Imtiyaz, Abdul Waris and Abdul Karim had expired and proceedings against them were abated vide order dated 25.02.2008, 09.09.2019 and 18.01.2017 respectively.
Digitally signed by KANIKA AGARWAL KANIKA Date:
AGARWAL 2025.04.04
15:11:33
+0530
FIR No.320/2005 State Vs. Abdul Karim etc. PS: Khajuri Khas Page no. 3 of 28
DEPOSITION OF PROSECUTION'S WITNESSES
4. To discharge its burden to prove its case, prosecution examined the following witnesses:
5. PW-1/HC Prem Chand deposed that on 17.08.2005, he was posted at PS Khajuri Khas as Ct and on that day one person namely Abdul Latif had lodged a call with PCR regarding wrong act with his daughter namely Tabassum by one boy Bunty and some call was marked to ASI Ram Kishore. He deposed at about 11 PM Mohd Irshad alongwith some persons gathered in front of PS and at that time some Media and Press persons were also present there. He deposed that accused Md Irshad started giving inciting/aggressive speech that police officials were not taking action on the report of Abdul Latif and they were are not arresting accused Bunty. He deposed that on this nearby persons also gathered there and started slogans against Delhi Police. He deposed that he alongwith HC Subhash, Ct Phool Kumar and Ct Mukesh tried to calm down the abovesaid persons and stated to them that proceedings were going on regarding complaint of Abdul Latif and police is going to trace at the house of accused Bunty and Bunty would be apprehended soon but accused Mohd Irshad along with other accused Iqbal, Waris, Abdul Karim, Imtiaz and elder son of accused Irshad and other persons who were carrying wood sticks and stones in their hands attacked them and started pelting stone on them. He deposed that he sustained injuries on his leg due to hit from the stone and Ct Mukesh sustained injury on his right leg due to hit by the elder son of Mohd Irshad by wood stick. He FIR No.320/2005 State Vs. Abdul Karim etc. PS: Khajuri Khas Page no. 4 of 28 Digitally signed by KANIKA KANIKA AGARWAL AGARWAL Date:
2025.04.04 15:11:38 +0530 deposed that crowd continued pelting stone at the PS and in the meantime SHO PS Khajuri Khas also came at the gate of PS and requested the crowd that their assembly is illegal and they should disperse from the spot but accused Mohd Irshad did not pay attention to the request of the SHO and continued his aggressive speech/inciting to the crowd. He deposed that SHO PS Shahdara reached at the spot alongwith the staff and used light force to disperse the crowd. He deposed that Abdul Karim, Imtiaz and Waris etc ran away from the spot. He deposed that he was medically examined at GTB Hospital. He deposed that IO recorded his statement. Accused persons were correctly identified by the witness in the Court and the photographs of the spot Mark A1 to A5.
In his cross-examination, the witness deposed that on that day public persons and Press was present outside the PS as one Abdul Latif had lodged a complaint regarding rape of his daughter. He did not remember whether any other matter in respect of rape was also going on in the PS at that time. He cannot tell whether one police official namely ASI Jaidev committed rape of a lady in the area of PS Khajoori Khas and for this reason public persons and Press were gathered there. There might be gathering of 80-90 people outside the PS. Some public persons having lathis and danda in their hands at that time. He identified all of accused persons namely Mohd. Irshad, Iqbal, Abdul Quayum, Waris, Imtiyaz and Rasid @ Habib s/o Irshads in the present matter. ASI Jaidev is known to me as he remained posted in PS Khajoori Khas. He deposed that he cannot tell whether public persons and Press gathered outside the PS to cover the rape matter of ASI Jaidev at that time. He deposed that he cannot tell exactly how many public persons were pelting stone on them.
FIR No.320/2005 State Vs. Abdul Karim etc. PS: Khajuri Khas Page no. 5 of 28 Digitally signed by KANIKA KANIKA AGARWAL AGARWAL Date:
2025.04.04 15:11:44 +0530 The son of accused Irshad was having a danda in his hand. He cannot say exactly who pelted stone on him due to which he sustained injuries on his leg. He denied that accused persons were present at the spot or that accused persons were falsely implicated in present case. He was discharged on 13.12.2013.
6. PW-2/HC Mukesh Kumar deposed that on 17.08.2005, he was posted at PS Khajuri Khas as Ct. and on that day a PCR Call was made by Abdul Latif regarding doing wrong work by Bunty with his daughter Tabassum and IO ASI Ram Kishore was conducting investigation. He deposed that accused Irshad collected some persons outside the gate of PS at about 11:00 PM and started shouting slogans regarding action being not taken by the police against the complaint of Abdul Latif and why accused Bunty is not arrested. He deposed that he alongwith Ct Subhash Ct Prem Chand Ct Phool Kumar made them understand that action is being taken on the complaint of Abdul Latif and raid is being conducted at the house of Bunty and accused will be apprehended. He deposed that accused Irshad, Iqbal, Barish, Abdul Karim and Rashid @ Habib and other persons having dandas and stones in their hands and they started beating the pelting stones. He deposed that son of Mohd Irshad beaten him due to which he sustained injury in Takhna of leg. He deposed that Prem Chand sustained injury in his leg with stones. He deposed that Inspector M.S Sekhawat tried to make them understand that their gatherings is unlawful and against law and directed for disruption but accused Irshad did not dispurse and continued shouting slogans and continued pelting stones. He deposed that during this K.G FIR No.320/2005 State Vs. Abdul Karim etc. PS: Khajuri Khas Page no. 6 of 28 Digitally signed by KANIKA KANIKA AGARWAL AGARWAL Date:
2025.04.04 15:11:50 +0530 Tyagi, SHO Shahdara and Vir Singh Tyagi, SHO Nand Nagri came at the spot and used some force. He deposed that thereafter Irshad, Rashid @ Habib, Iqbal, Barish, Abdul Karim Qureshi, Imtiaz fled away and his statement was recorded as Ex PW2/A. He deposed that IO prepared rukka and got the FIR registered. PW-2 correctly identified the witnesses in the Court and photographs of the spot as Ex Mark A1 to A5.
In his cross-examination, he deposed that the incident took place on 17.08.2005 at about 11.45 p.m. He does not know whether Abdul Latif had come in the PS or not but it was a PCR call. The PCR call was received around 09-10.00 p.m. He does not know whether Abdul Latif was present or not in the PS when the crowd start gathering there. Around 40-50 persons were in the crowd. Initially around 20-25 persons came together and thereafter, the crowd increased to 40-45 persons. The crowd was present outside the gate of the PS. Perhaps one more rape case had happened on the day of incident i.e. 17.08.2005. Media persons had gathered there in the another rape matter and they were present there before the crowd had arrived. The crowd had gathered as the accused were raising slogans against the police. He does not remember whether any police officer namely Jai Dev was arrested or not. He denied that accused were not present at the spot on the day of incident or that they neither incited the crowd nor pelted stones or that the accused had not hit him with a danda. He denied that he has given a false statement. He was discharged on 29.05.2015.
7. PW-3/ASI Khem Chand deposed that on the intervening night of 17 & 18th August 2005, he was posted at PS Khajuri Khas as Ct FIR No.320/2005 State Vs. Abdul Karim etc. PS: Khajuri Khas Page no. 7 of 28 Digitally signed by KANIKA KANIKA AGARWAL AGARWAL Date:
2025.04.04 15:11:56 +0530 and on that day he joined the investigation alongwith IO. He deposed that he took the injured Ct Mukesh and Ct Prem Chand to GTB Hospital where they were medically examined. He deposed that after medical examination of both the injured constables he brought them at the spot and produced before the IO.
In his cross-examination, the witness deposed that on the date of incident, he was present at the spot. There was 50-60 people present at the spot at the time of incident i.e. at about 10.00 to 10.15 p.m. He cannot say why the people started stone pelting on the police. Again said, he was not present at the spot but he was called for medical examination of the injured police officials. He was present in the police station at night duty. He joined the duty at about 8.00 p.m. He had not seen the people stone pelting upon the police. He cannot say whether an FIR under Section 376 IPC was registered upon SI Jaidev or not. He cannot say whether media persons were present due to registration of FIR under Section 376 IPC against SI Jaidev. He started about 11.00 p.m. for medical examination of the injured persons. Ct. Mukesh was injured in his leg. Ct. Prem Chand was also injured in his leg. Both the injured were taken to the hospital by anto Rickshaw. They reached at the hospital within 30 minutes. After medical check-up, they came back at P.S. about 2.30 a.m. He cannot say whether there was people present in the P.S. after returning. He only handed over the injured persons and their MLCs to the IO/SI Mohd. Salim. He denied that there was no incident on the said date of stone pelting or that the accused persons were not present on the spot at the time of the incident. He was discharged on 12.09.2017.
FIR No.320/2005 State Vs. Abdul Karim etc. PS: Khajuri Khas Page no. 8 of 28 Digitally signed by KANIKA KANIKA AGARWAL AGARWAL Date:
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8. PW-4/ASI Subhash Chandra deposed that on 17.08.2005, he was on emergency duty from 8:00 PM to 8:00 AM and at about 11:00 PM, public persons started gathering in front of PS Khajuri Khas and media also. He deposed that in the meantime a call was received at PS Khajuri Khas regarding rape of one girl. Accused persons were correctly identified by the witness). He deposed that he alongwith his associate police officials had made several efforts to calm down the mob but all in vain. He deposed that one Rashid son of accused Mohd. Irshad had hit by a danda to constable Mukesh and Ct. Prem Chand on their person. Mob kept pelting stones at PS and police officers. He deposed that on FIR was registered at PS Khajuri Khas and injured police officials were taken to hospital for their medical examination. Ct. Nathu had taken the photograph of the spot by mobile phone at the instance of SHO.
In his cross-examination by Ld. APP for State, the witness deposed that on 17-08-05 a PCR call was made by one Abdul Latif regarding tape of his daughter by one Bunty. He deposed that during addressing the mob accused Md. Irshad was also stating that "Bunty ko girftar nahi kar rahe hai. Aaj in policewalo ko iska maja chakha do". He further deposed that he alongwith Ct. Mukesh, Ct. Prem Chand and Ct. Phool kumat were present at PS at that time. He denied that he had made efforts to calm down the mob by saying that "Abdul Latif ke shikayat par police karawahi kar rahi hai. Ranity ka ghar par raid kar rahi hai aur Bunty jaldi hi pakda jayaga." He deposed that Md. Irshad alongwith Waris, Abdul Karim, Imtiyaz, elder son of Md. Irshad and other public persons who were having dandas and stones in their hands started hitting against police officials and also pelted stones (Accused persons were FIR No.320/2005 State Vs. Abdul Karim etc. PS: Khajuri Khas Page no. 9 of 28 Digitally signed by KANIKA KANIKA AGARWAL AGARWAL Date: 2025.04.04 15:12:07 +0530 correctly identified by the witness.) He deposed that due to hitting of danda by elder son of Inshud, CL Mukesh had sustained injuries on his right leg and Ct. Prem Chand also vostomed injuries on his right leg by stones. He deposed that accused persons Abdul Kaman, Iqbal, Imtiyaz and Md. Irshad were arrested by IO in his presence. Accused persons were also personally searched by IO.
In his cross-examination by Ld. defence counsel, the witness deposed that there were more than 100 people were gathered at PS K.Khas. He was not aware for which case media had come on that day. He I do not remember complainant Abdul Latif was present in the PS or not at that time. Abdul Latif had made complaint of his daughter rape on 100 number helpline. He deposed that stone pelting started after 11:00 PM and continue around 10 minutes. He denied that Abdul Karim was not pended on that day but he was called from his home after some days to make arrest. He did not remember at which time accused Abdul Karim was arrested. He denied that accused persons were not present at the time of offence or that they have been falsely implicated or that accused persons have not pelted stones or that no injury to police officials was caused by the accused persons. He was discharged on 24.09.2018.
9. PW-5/ASI Nathu Ram deposed that on 18.08.2005, he had taken photographs from his private camera of the inside area of PS Khajuri Khas as there were bricks thrown by the mob on 18.08.2005.
In his cross-examination, the witness deposed that on 18.08.2005, at about 11:45 PM he had taken said photographs. He had handed-over the negatives and photographs to the IO. He did not have FIR No.320/2005 State Vs. Abdul Karim etc. PS: Khajuri Khas Page no. 10 of 28 Digitally signed by KANIKA KANIKA AGARWAL AGARWAL Date: 2025.04.04 15:12:13 +0530 any idea about his said camera as same became out of order. He denied that he has not taken the photographs of the spot as claimed by him or that no negatives were given to IO by him. He was discharged on 04.02.2020.
10. PW-6/SI Omvir Singh deposed that on 17.08.2005, he received DD No.53B regarding quarrel and he alongwith ASI Ram Kishore went to spot where they came to know that there was no quarrel but there a boy misbehaved/wrong work with a girl. He deposed that W/ASI Sunita came at the spot and ASI Ram Kshore recorded statement of complainant in front of him and W/ASI Sunita. He deposed that ASI Ram Kishore prepared rukka and handed over to him registration of FIR. He deposed that he got the FIR registered. IO recorded his statement. He was discharged on 28.08.2022.
11. PW-7/Retd. SI Ram Kishore deposed that on 17.08.2005, on receiving DD No.53B regarding fight at Kachi Khajuri and he alongwith Ct. Ombir reached the spot where they met one girl namely Tabbasum aged about 11 years and her father namely Abdul Latif who briefed him that one person namely Samiulla @ Banti had attempted to commit rape with the said girl. He deposed that he requested the PS to send lady police official and W/ASI Sunita came at the spot and enquired about the incident from the complainant and her relative and recorded statement of complainant and prepared Tehrir and handed over to Ct. Ombir for registration of FIR. He deposed that he got the FIR registered. IO recorded his statement.
FIR No.320/2005 State Vs. Abdul Karim etc. PS: Khajuri Khas Page no. 11 of 28 Digitally signed by KANIKA KANIKA AGARWAL AGARWAL Date: 2025.04.04 15:12:20 +0530 In his cross-examination, the witness deposed that no call was received in the PS. He was discharged on 01.05.2023.
12. PW-8/Retd. ACP M.S. Shekhawat deposed that on 17.08.2005 at about 11:00 PM, public persons were gathered in front of PS Khajuri Khas and accused persons were demanding that no action has been taken by police against the accused Banti in a case of misbehaved and teasing. He deposed that on he tried to pacify the accused persons and public persons through mic and loudspeaker and also warned them to disperse from the spot but they did not listen and started pelting stone and they attacked on police officials at the spot. He depose3d tha tCt. Mukesh and Ct. Prem Chand got injured in the incident and other police officials also injured.
Ld. APP for State sought permission to cross-examine the witness and in his cross-examination, the witness deposed that Ct. Mukesh Kumar, Ct. Prem Chand, Ct. Phool Kumar, HC Subhash Chand got injured in the incident. CL. Mukesh Kumar received injuries as elder son of accused Irsahd hit him with stick. He deposed that Ct. Prem Chand received injuries on right hand due to stone pelting.
In his cross-examination by Ld. defence counsel, the witness deposed that the crowd about 100 persons was gathered in front of PS Khajuri Khas. The incident above stated in chief examination regarding teasing by one Banti pertains to the daughter of the accused Irshad. He was informed regarding the identity of the accused persons mentioned in chief examination by beat constable Mukesh and Ct. Prem Chand. All the accused persons were carrying sticks/dandas and stones in their hands FIR No.320/2005 State Vs. Abdul Karim etc. PS: Khajuri Khas Page no. 12 of 28 Digitally signed by KANIKA KANIKA AGARWAL AGARWAL Date:
2025.04.04 15:12:26 +0530 whose names he stated in his examination in chief. No danda and stones were recovered by him. The spot was photographed after the crowd left the spot. He does not remember the name of photographer. He does not know whether any photograph has been filed on record or not. He denied that stone pelting had not happened and no photographs were taken or that the accused persons were not carrying any stones or danda. He cannot tell as to who had inflicted injuries on the persons of Mukesh, Prem Chand, Ct. Phool Kumar and HC Subhash Chand. The injured Mukesh sustained injuries on his leg by the danda blow given by accused Iqbal. He denied that accused Iqbal is not son of Irshad. He cannot say if the name of the father of accused Iqbal is Akil Khan. He denied that son of accused Irshad was not present at the spot or that daughter of accused Irshad was teased by one Banti ever. He was not aware as to whether the girl teased by Banti was daughter of one Abdul Latif. He did not know whether the said girl was acquainted with accused Irshad or Iqbal. The crowd was raising slogan "Thane Ko Aag Lagadege, Tod Fod Karege". He did not remember the name of elder son of Irshad. He deposed that the elder son of Irshad is not an accused in the present case. He denied that only 4-5 persons had gathered at the PS with Abdul Latif and the accused persons were not present there. He was discharged on 01.05.2025.
13. PW-9/Retd. ASI Sunita deposed that on 2005 at about 9:25 PM with receipt of DD No.33A went to spot where he met ASUI Ram Kishore and Ct. Omvir Singh and one girl namely Tabbasum and her father Talif were present there at the spot. ASI Ram Kishore recorded the FIR No.320/2005 State Vs. Abdul Karim etc. PS: Khajuri Khas Page no. 13 of 28 Digitally signed by KANIKA KANIKA AGARWAL AGARWAL Date: 2025.04.04 15:12:31 +0530 statement of the girl and prepared rukka and same was handed over to Ct.
Ombir Singh for registration of FIR and after some time Ct. Omvir Singh came at the spot after registration of FIR No.319/2005 u/s 376/511/506 IPC.
In his cross-examination, the witness deposed that he did not have any knowledge in respect of FIR No.320/2005, PS Khajuri Khas as he was not concerned with the aforesaid case. He had investigated the FIR No. 319/2005, PS Khajuri Khas only. He was discharged on 15.07.2023.
14. PW-10/Retd. ACP Sh. K.G. Tyagi deposed that on 18.07.2005, he alongwith his staff reached at PS Khajuri Khas where the large gathering of crowd was gathered in the front of police station. They were shouting the slogan and having danda and stone in their hand. Meanwhile, SHO, PS Bhajanpura, Sh. Veer Singh also reached the spot alongwith the staff and announced to crowd to disburse from the spot as the assembly was declared as unlawful. In this process, some police officials and public persons also suffered injuries and they were sent to hospital. In this process, Mohd. Irshad and other co-accused persons to whom he was identifying them by faces. His statement was recorded by SHO in the late night on 18.08.2005.
In his cross-examination, the witness deposed that the crowd of around 150 to 200 people were at the spot cannot tell why they were gathered in front of police station but they wer raising the slogan against police and armed with danda and stones. The public was shouting the slogan Mardo, Hai Hai, Chhorege Nahi. He further deposed that SHO FIR No.320/2005 State Vs. Abdul Karim etc. PS: Khajuri Khas Page no. 14 of 28 Digitally signed by KANIKA KANIKA AGARWAL AGARWAL Date:
2025.04.04 15:12:38 +0530 Khajuri Khas Sh. Magan Singh was present at the spot he was SHO of the concerned area. He was trying to pacifying them and also talking to them. He deposed that he was present there to assist the SHO of the area for maintaining the law and order. He deposed that he did not know the reason why the public were gathered before the police Station Khajuri Khas because the incident is about 20 years ago so he cannot recollect the same. He deposed that he has not stated the reason for gathering of public before Khajuri Khas police station in my statement u/s 161 Cr.PC. (Vol. It was not asked by 10 of the case).
He further deposed that IO had not asked the reason why the public is gathering before the police but he had also not stated the reasons to the police during his statement u/s 161 Cr.PC. (Vol. The IO examined him for recording his statement u/s 161 Cr.PC and he stated the facts as stated in the statement). He cannot tell how many people were keeping dandas in their hands and he cannot tell their names. (Vol. Except Irshad and the accused persons to whom he know from face and who is standing in the court wearing green shirt (Iqbal Khan)). He cannot state the name of persons who were pelting stones. He cannot tell the name of police officials who were injured due to stone pelting of the crowd. He deposed that police used lathi charge upon the gathering to disperse them. There were total 4-5 persons were apprehended on the spot. He cannot tell the name of the persons who were apprehended except Irshad. He denied that there was no gather of people before PS Khajuri Khas on 18.07.2005. He was discharged on 29.08.2023.
FIR No.320/2005 State Vs. Abdul Karim etc. PS: Khajuri Khas Page no. 15 of 28 Digitally signed by KANIKA KANIKA AGARWAL AGARWAL Date:
2025.04.04 15:12:44 +0530 STATEMENT OF THE ACCUSED U/S 313 CR.PC
15. Upon completion of prosecution evidence, statement of accused persons namely Iqbal and Mohd. Irshad under Section 313 Cr.PC read with Section 281 Cr.PC was recorded on 05.02.2024. The accused persons denied the allegations and pleaded innocence and opted to lead defence evidence.
DEFENCE EVIDENCE
16. DW1 W/Ct. Pinki Sharma deposed that he brought the summoned record. i.e. FIR No. 318/2005, u/s 376/506 IPC dated 17.08.2005, PS Khajuri Khas. He was discharged on 02.09.2024.
17. DW2 Mohd. Irshad deposed that on 17.08.2005, one ASI namely Jaydev have committed the rape but he did not remember the name of the victim and media persons were there in PS Khajuri Khas and huge crowed was also gathered there. Once, he came to know about the incident, he immediately went to home after closing his shop. He was called by SHO, PS Khajuri Khas and he told him that he was involved in this case and further he asked him to produced surety and adhar car for his bail in this case. Other accused namely Iqbal was also arrested on next day at night by calling from his home and both of them have been falsely implicated in this case. He deposed that he has not done anything.
In his cross-examination by Ld. APP for State, the witness denied that on 17.08.2005, he alongwith his associates including had FIR No.320/2005 State Vs. Abdul Karim etc. PS: Khajuri Khas Page no. 16 of 28 Digitally signed by KANIKA KANIKA AGARWAL AGARWAL Date: 2025.04.04 15:12:49 +0530 formed and unlawful assembly and in prosecution of common object be obtained Ct. Mukesh and Ct. Prem Chand who were on duty and performing/discharging/functioning and caused injuries to them. He denied that neither he nor the accused Iqbal were called by the SHO, PS Khajuri Khas nor have been falsely implicated in this case. He was discharged on 27.11.2024.
FINAL ARGUMENTS
18. I have considered arguments advanced by Ld. APP for State and Ld. Counsel for accused and have perused the entire material available on record carefully.
ANALYSIS & FINDINGS
19. It is a settled proposition of criminal law that the prosecution is supposed to prove its case beyond all reasonable doubts by leading reliable, cogent, and convincing evidence. It is also settled that primary burden of proof for proving offence in a criminal trial rest on the shoulders of the prosecution. It must be seen whether the Prosecution had been able to establish the actus reus as well as the mens rea of the accused persons in the present case and that the case against the accused persons is established beyond all reasonable doubts. It is a settled law that punishment of an accused person on the basis of suspicion is not permissible. Suspicion alone cannot give probative value to testimony which in itself is insufficient to establish or justify an inference of a particular fact.
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20. In order to prove its case, prosecution is supposed to stand on its own legs and it cannot drive any benefit, whatsoever, from the weakness, if any, in the defence of the accused. The burden of proof of the version of the Prosecution in a criminal trial throughout the trial is on the Prosecution and its never shifts to the accused and the accused is entitled to the benefit of every reasonable doubt in the Prosecution story and such doubts entitles the accused to acquittal.
21. Before proceeding with the appreciation of evidences, it is imperative to refer the definition of the offences charged against the accused persons. For better understanding sections 147, 148, 149, 186, 332 & 353 IPC are reproduced as follow:
Section 141 IPC: Unlawful assembly - "An assembly of five or more persons is designated an unlawful assembly, if the common object of the persons composing that assembly is- (First) - To overawe by criminal force, or show of criminal force, [the Central or any State Government or Parliament or the Legislature of any State], or any public servant in the exercise of the lawful power of such public servant; or (Second) - To resist the execution of any law, or of any legal process; or (Third) - To commit any mischief or criminal trespass, or other offence; or (Fourth) - By means of criminal force, or show of criminal force, to any person, to take or obtain possession of any property, or to deprive any person of the enjoyment of a right of way, or of the use of water or other incorporeal right of which he is in possession or enjoyment, or to enforce any right or supposed right; or (Fifth) - By means of criminal force, or show of criminal force, to compel any person to do what he is not legally bound FIR No.320/2005 State Vs. Abdul Karim etc. PS: Khajuri Khas Page no. 18 of 28 Digitally signed by KANIKA KANIKA AGARWAL AGARWAL Date:
2025.04.04 15:13:00 +0530 to do, or to omit to do what he is legally entitled to do. Explanation. --An assembly which was not unlawful when it assembled, may subsequently become an unlawful assembly"
Section 146: Rioting. - "Whenever force or violence is used by an unlawful as- sembly, or by any member thereof, in Prosecution of the common object of such assembly, every member of such assembly is guilty of the offence of rioting Section 147: Punishment for rioting. Whoever is guilty of rioting, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both"
Section 148: Rioting, armed with deadly weapon. - "Whoever is guilty of rioting, being armed with a deadly weapon or with anything which, used as a weapon of offence, is likely to cause death, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both".
Section 149: Every member of unlawful assembly guilty of offence committed in Prosecution of common object. - "If an offence is committed by any member of an unlawful assembly in Prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in Prosecution of that object, every person who, at the time of the committing of that offence, is a member of the same assembly, is guilty of that offence". Section 186: Obstructing public servant in discharge of public functions.
- "Whoever voluntarily obstructs any public servant in the discharge of his public functions, shall be punished with imprisonment of either description for a term which may extend to three months, or with fine FIR No.320/2005 State Vs. Abdul Karim etc. PS: Khajuri Khas Page no. 19 of 28 Digitally signed by KANIKA KANIKA AGARWAL AGARWAL Date:
2025.04.04 15:13:06 +0530 which may extend to five hundred rupees, or with both". Section 332: 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 public servant, with intent to prevent or deter that person or any other public servant 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: Assault or criminal force to deter public servant from discharge of his duty.- "Whoever assaults or uses criminal force to any person being a public servant in the execution 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".
22. The prosecution was required to show by way of cogent and reliable evidences that the accused persons had, on alleged date and time formed an unlawful assembly, armed with deadly weapons, and thereby used force or violence owing to which the complainant and Police officials were obstructed in their official duties and had also voluntarily caused hurt to the Police officials while they were discharging their FIR No.320/2005 State Vs. Abdul Karim etc. PS: Khajuri Khas Page no. 20 of 28 Digitally signed by KANIKA KANIKA AGARWAL AGARWAL Date: 2025.04.04 15:13:11 +0530 duties.
23. The criminal machinery was set into motion with the complaint of PW2/HC Mukesh Kumar who stated that accused person along with several other persons had gathered around 11 P.M in front of Khajuri Khas police station as they were aggrieved that police is not taking any action on the complaint filed by Abdul Latif against Banti . It is stated that accused persons namely Mohd Irshad ,Iqbal, Waris, Abdul Karim , Imtiyaaz and Rashid along with several other persons started giving inciting and provocative speech that the police official are deliberately not taking any action on the complaint of Abdul Latif and we should teach them a lesson. When he (complainat) along with HC Subhash and Ct.Phool Kumar tried to pacify them , Mohd Irshad along with co-accused persons namely Iqbal, Waris, Abdul Karim , Imtiyaaz and Rashid and several other persons who were carrying wooden sticks and stones in their hands started stone pelting on police officials . Soon thereafter, SHO PS. Khajuri Khas and SHO Shahdara reached at the spot and requested the unlawful assembly formed by them to disperse from the spot, however when they were not ready to listen to him, then light force was used. Soon thereafter, accused persons and the crowd ran away from the spot.
24. In the case at hand, the prosecution has examined total 10 winteses out of which PW-1/HC Prem Chand, PW-2/HC Mukesh Kumar, PW-3/ASI Khem Chand, PW-4/ASI Subhash Chandra, PW-5/ASI Nathu Ram, PW-8/Retd ACP M.S Shekhawat & PW-10/Sh.Tyagi are the FIR No.320/2005 State Vs. Abdul Karim etc. PS: Khajuri Khas Page no. 21 of 28 Digitally signed by KANIKA KANIKA AGARWAL AGARWAL Date: 2025.04.04 15:13:16 +0530 witnesses who happened to be present at the place of incident. The court shall now appreciate the testimony of these witnesses in order to ascertain if the witnesses are able to prove that the accused persons had formed an unlawful assembly or joined an assembly which was unlawful and thereby used force or violence to prevent the police officials from discharging their duties and accordingly, caused hurt to them in discharge of their duties with an intent to prevent them from doing their duties.
25. The complainant was examined as PW2 and he reiterated the contents of his Tehrir ExPW2/A in his examination in chief. However, it is to be noted that the Complainant/PW2 deposed in his cross-
examination deposed that the incident took place at about 11.45 PM which is contrary to his own version as he had earlier stated that the incident took at about 11.PM. Further, PW2 has merely deposed that in his examination-in- chief that the accused persons were shouting provocative slogans to the effect that police officials are not taking any action on the complaint filed by Abdul Latif. In the opinion of the court, the statement that police is not taking any action is not provocative in nature & merely portrays the anguish of the aggrieved party. Further, PW2 in his cross -examination has stated that there was an unlawful assembly of about 40-50 people at the spot, however, despite so many people being part of the unlawful assembly that day no one else except the accused persons were arrested. No steps taken to trace, identify and apprehend the other members of the alleged unlawful assembly. Further, PW1 has stated that media and press was also present at the spot, however no details disclosed or efforts made to know the names of the FIR No.320/2005 State Vs. Abdul Karim etc. PS: Khajuri Khas Page no. 22 of 28 Digitally signed by KANIKA KANIKA AGARWAL AGARWAL Date:
2025.04.04 15:13:21 +0530 reporters or the media group who had covered the alleged incident. In the opinion of the court, the media and press group would have definitely reported the incident if it had actually happened through print newspapers and digital format. No newspaper clipping is filed by the prosecution to corroborate the version.
26. Next, the prosecution has examined PW1/HC Prem Chand, who has also deposed similar to PW2/Mukesh. As per PW1, there was gathering of about 80-90 people outside the Police Station at the date and time of incident, however as per the complainant/PW2 there were gathering of about 40-45 people. Further, PW1 has also merely stated that accused person gave provocative speech without particularly mentioning what provocation was given.
27. PW3/ASI Khem Chand who also happened to be at the police station at the date of incident stated that the incident took place around 10-10.15 PM and that he took the injured persons namely Ct.
Mukesh and Ct. Prem Chand for medical examination at about 11 A.M. He does not mention anything about use of slogans by the accused person or use of force by them. Further, his testimony with respect to timings of incident is contrary to testimonies of PW1 and PW2.
28. Coming to testimony of PW4/ASI Subhash Chandra who also claims himself to be present at the spot has made vague allegation that accused persons gave provocative slogans without stating what exactly was said. He further deposed that lathi charge was used to FIR No.320/2005 State Vs. Abdul Karim etc. PS: Khajuri Khas Page no. 23 of 28 Digitally signed by KANIKA KANIKA AGARWAL AGARWAL Date:
2025.04.04 15:13:26 +0530 disperse the public person. Notably, none of the prosecution witnesses examined had mentioned about use of lathi charge. He further stated that Ct.Nathu had taken photograph of the spot at the instance SHO. It is apt to mention herein that the prosecution is relying on few photographs Mark A1 to A5 wherein one can see few stones lying inside the compound area of the Police Station. However it is strange that no video recording was made of the incident or the photographs taken of the unlawful assembly. Further, although the photographs are taken of the stones lying inside the compound area, but admittedly no seizure memo is prepared of the weapons of offence i.e. stones and wooden sticks of the date of incident. His testimony thus full short of proving the allegations.
29. PW5 /ASI Nathu Ram deposed that he had taken the photographs Mark A1 to A5 of the place of incident on 18.08.2005 at the instance of the SHO concerned. There is no explanation as to why the photograph was taken after the incident was over and why it was not taken when the incident was happening. No explanation why he did not make any recording of the incident.
30. PW8/ACP Shekhawat has deposed that the accused person along with several others person were using provocative speech and when he asked them to disburse then accused person along with others members of the unlawful assembly had started stone pelting and attacking the police officials and thus mild force was used to disburse them. Notably, he does not mention in his examination in chief that what provocative speech was given by them.
FIR No.320/2005 State Vs. Abdul Karim etc. PS: Khajuri Khas Page no. 24 of 28 Digitally signed by KANIKA KANIKA AGARWAL AGARWAL Date: 2025.04.04 15:13:31 +0530 ANALYSIS AND FINDINGS
31. After the scrutinizing the material and the testimonies of the witness on record, the court is of the opinion that prosecution has miserably failed to establish that accused person along with others (unidentified and untraced) had formed an unlawful assembly and used criminal force with common object to overawe by criminal force the police official in exercise of their lawful duty, and to obstruct them from discharging their public duty for the following reasons: Firstly, the story of prosecution appears to unbelievable in light of the fact that they have not established any relation between the accused person and Abdul Latif. In order words, it remains unclear as to why the accused person would gather outside the police station for non-action on the part of the police with respect to complaint of Abdul Latif. Whether the accused person were the relatives of the Abdul lati or his acquaintance remains unanswered. Usually, no one until personally aggrieved would stage any protest or participate in any protest. Prosecution has failed to establish motive or object for accused person to form an unlawful assembly on the date of incident that too in absence of accused Abdul Latif.
32. Another reason why prosecution story appears to be doubtful is that though it is alleged that crowd was consisting of 40-50 members, yet no one else except the accused persons were named and arrested. The IO made no efforts to trace the other members of the alleged unlawful assembly. Further, there is no seizure memo of alleged weapons of offence i.e. stones and wooden sticks. There are no photographs or video covering the incident. Although, the prosecution could file photographs FIR No.320/2005 State Vs. Abdul Karim etc. PS: Khajuri Khas Page no. 25 of 28 Digitally signed by KANIKA KANIKA AGARWAL AGARWAL Date: 2025.04.04 15:13:36 +0530 Mark A1 to A5 showing the stones lying inside the compound area, but they could not file any recording of the incident. Further, none of the witnesses have specifically stated what provocative slogans were used. All the prosecution witness has made vague averments that accused used inciting and provocative slogans without stating its contents. Thus, the court is of the opinion that prosecution has failed to establish the formation of unlawful assembly by the accused persons on the date of incident and their allegations that accused had voluntarily obstructed the public servants in discharge of their public duties and volutanrily caused hurt to Ct. Mukesh & Ct. Prem Chand while they were discharging their public duties.
33. In a case law reported as "Roop Chand Vs. The State of Haryana" 1999(1) C.L.R. 69, the Punjab & Haryana High Court held as under :-
"4. It is well settled principle of the law that the investigating agency should join independent witnesses at the time of recovery of contraband articles, If they are available and their failure to do so in such a situation casts a shadow of doubt on the prosecution case. In the present case also admittedly the independent witnesses were available at the time of recovery but they refused to associate themselves in the investigation. This explanation does not inspire confidence because the police officials who are the only witnesses examined in the case have not given the names and addresses of the persons contacted to join it is a very common excuse that the witnesses from the public refused to join the investigation. A police officer conducting investigation of a crime is FIR No.320/2005 State Vs. Abdul Karim etc. PS: Khajuri Khas Page no. 26 of 28 Digitally signed by KANIKA KANIKA AGARWAL AGARWAL Date: 2025.04.04 15:13:41 +0530 entitled to ask anybody to join the investigation and on refusal by a person from the public the Investigating Officer can take action against such a person under the law. Had it been a fact that the witnesses from the public had refused to join the investigation, the Investigating Officer must have proceeded against them under the relevant provisions of law. The failure to do so by the police officer is suggestive of the fact that the explanation for non- joining the witnesses from the public is an after thought and is not worth of credence. All these facts taken together make the prosecution case highly doubtful".
34. In a criminal trial, the burden of proving everything essential to the establishment of the charge against an accused always rests on the prosecution and there is a presumption of innocence in favour of the accused persons until the contrary is proved. In the present case, despite a lengthy trial, prosecution was not able to adduce evidence at the proper threshold, and there are several loopholes visible in the story of the prosecution. The benefit of the same would necessarily flow to the accused persons.
35. 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 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 FIR No.320/2005 State Vs. Abdul Karim etc. PS: Khajuri Khas Page no. 27 of 28 Digitally signed by KANIKA KANIKA AGARWAL AGARWAL Date: 2025.04.04 15:13:47 +0530 necessarily has to go to the accused."
36. Consequentially, in view of the aforesaid discussions and reasoning, I hold that the prosecution has failed to prove its case against the accused persons beyond reasonable doubts. Hence, accused persons namely accused Iqbal S/o Sh. Akil Khan and Mohd. Irshad S/o Mahfooz Khan are acquitted for the offence punishable U/s 143/147/186/149/ 332/ 353 IPC.
37. Accused persons shall furnish personal bond and surety bond as per the mandate of Section 437A Cr.PC upon which previous bonds shall be cancelled and previous surety shall be discharged.
Copy of the Judgment be given to accused free of cost.
Digitally signed by KANIKA KANIKA AGARWAL
Announced in the open court AGARWAL Date:
2025.04.04
on 04.04.2025 15:13:53 +0530
(Kanika Agarwal)
Judicial Magistrate First Class-03,
North-East, Karkardooma Courts, Delhi
FIR No.320/2005 State Vs. Abdul Karim etc. PS: Khajuri Khas Page no. 28 of 28