Delhi District Court
State vs Anisur Rehman @ Jaimini on 26 April, 2024
IN THE COURT OF SH. JOGINDER PRAKASH NAHAR
ADDITIONAL SESSIONS JUDGE (FTC-01), CENTRAL DISTRICT
TIS HAZARI COURTS, DELHI
CNR No. DLCT01-000720-2012
SC No. 27972/2016
FIR No. 81/2012
U/Sec. 307/186/353/506 IPC &
25/27/54/59 of Arms Act
P.S. Chandni Mahal
STATE VERSUS ANISUR REHMAN @ JAIMNI
(i) SC No. of the case : 27972/2016
(ii) Date of commission of offence : 05.06.2012
(iii) Name, parentage and address : Anisur Rehman @
accused Jaimni
S/o Sh. Abdul Latif
R/o 453, Gali Bahar
Wali, Chatta Lal Miyan
Delhi
(iv) Offence complained of : 307/506(2)/186/353 IPC
& 25/27 of Arms Act
(v) Plea of the accused : Pleaded not guilty
(vi) Final order : Accused Anisur Rehman
@ Jaimni is acquitted
for the offence u/Sections
307/506(2)/186/353 IPC
& 25/27 of Arms Act
SC No. 27972/2016
State vs. Anisur Rehman @ Jaimni
FIR No. 81/2012
Page 1 of 33
Date of Institution : 25.10.2012
Date of Judgment reserved on : 15.04.2024
Date of Judgment : 26.04.2024
JUDGMENT
BRIEF FACTS AND REASONS FOR DECISION :-
1. The present case was registered on the complaint of Sh.
Nooruddin in that on 05.06.2012 around 10:00 AM in the morning the accused came in their street at H.No. 99 in front of Gali Peepalwali, Chatta Lal Miyan within jurisdiction of PS Chandni Mahal and started slamming the doors of the house of the complainant. The accused was also throwing abuses. Accused was shouting that the complainant should come out of his house. He was shouting that the complainant was saved from the Court. However, the accused will kill the complainant today by shooting him from the gun possessed by the accused. The complainant from his balcony had seen the accused. His wife also came there in the balcony. The accused did not return despite asking by the complainant. The wife of complainant from her mobile no. 9268991508 had called the police at 100 number which is also recorded in DD No. 22B dated 05.06.2012 Ex.PW7/C (intimation received from PCR call -Ravangi). This information was received at 10:05 AM regarding a fight at the spot. The intimation was given by Ct. Kamal from PCR and it was handed SC No. 27972/2016 State vs. Anisur Rehman @ Jaimni FIR No. 81/2012 Page 2 of 33 over to Ct. Jai Singh who had handed it over to SI Rohtash. When the complainant trying to come down then his wife had stopped him. The wife of complainant had asked the accused that she has reported to police on which the accused had shot at wife of complainant and also at the complainant. Both of whom were saved. Other people were also standing there. After that the accused while giving threat to the complainant went towards main road. The complainant with Irfan, Nafees and Gulfam went behind the accused. Then the police staff reached there. The accused had threatened the police by pointing out pistol towards police by telling that he will shoot them if they come near the accused. Then the accused went towards Fasil road and he was also threatening other public person. Accused did not listen to police warning to surrender. Then the accused climb to H.No. 450 and behind the accused police person also went after climbing the said house. Accused had reached at his house and after scuffle with accused the police overpowered the accused. The gun of the accused was snatched from his hands. Four live rounds were found in the magazine. The people present at the spot had beaten the accused. The police had saved the accused. The complaint is Ex.PW1/A.
2. Vide DD No. 14A dated 05.06.2012 the returning back (Amad Tehrir) was made at 3:00 PM and FIR no. 81/2012 was recorded under Section 307/186/353/506 IPC r/w Section 25/27 of Arms Act. Copy of which was sent to SI Rohtash. FIR Ex.PW7/A was registered in SC No. 27972/2016 State vs. Anisur Rehman @ Jaimni FIR No. 81/2012 Page 3 of 33 reference to Amad Tehrir. The police had investigated the case and filed the chargesheet on which accused were summoned. The charge was given to the only accused Anisur Rehman @ Jaimni under Section 307/506(2)/186/353 IPC and Section 25/27 of Arms Act to which accused did not plead guilty and claimed trial.
3. The prosecution has examined PW-1 to PW-15. The statement of accused Anisur Rehman @ Jaimni was recorded under Section 313 Cr. PC on 26.09.2019. Accused has preferred to lead evidence in defence and DW-1 and DW-2 both were examined. Vide order dated 27.11.2019 DE stands closed by the order of the Court.
4. Final arguments are heard from both the parties and record perused.
4.1 Ld. Counsel for accused has relied on following citations:
(i) Abdul Ghaffar vs. The State (Delhi Admn.) 1996 JCC 497
(ii) Kamaljit Singh @ Pappu vs. State of Punjab 2019 Legal Eagle (SC) 1506
(iii) Giriraj vs. State 83 (2000) DLT 201
(iv) Gurcharan Singh Arora & Anr. vs. State 96 (2002) DLT 181 SC No. 27972/2016 State vs. Anisur Rehman @ Jaimni FIR No. 81/2012 Page 4 of 33
5. The relevant Section 27 of the Arms Act 1959 is reproduced hereasunder for ready reference:
27. Punishment for using arms, etc.--(1) Whoever uses any arms or ammunition in contravention of section 5 shall be punishable with imprisonment for a term which shall not be less than three years but which may extend to seven years and shall also be liable to fine.
(2) Whoever uses any prohibited arms or prohibited ammunition in contravention of section 7 shall be punishable with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life and shall also be liable to fine.
(3) Whoever uses any prohibited arms or prohibited ammunition or does any act in contravention of section 7 and such use or act results in the death of any other person, shall be punishable with imprisonment for life, or death and shall also be liable to fine.
6. The relevant provision of Section 25(1A), (1AAA), (1B) of Arms Act, 1959 are reproduced hereasunder:
25. Punishment for certain offences.―(1) Whoever--
(1A) Whoever acquires, has in his possession or carries any prohibited arms or prohibited ammunition in contravention of section 7 shall be punishable with imprisonment for a term which shall not be less than five years, but which may extend to ten years and shall also be liable to fine.
(1AAA) Whoever has in contravention of a notification issued under section 24A in his possession or in contravention of a notification issued under section 24B carries or otherwise has in his possession, any arms or ammunition shall be punishable with imprisonment for a term which shall not be less than 2 [three years, but which may extend to seven years] and shall also be liable to fine.
SC No. 27972/2016State vs. Anisur Rehman @ Jaimni FIR No. 81/2012 Page 5 of 33 (1B) Whoever-- (a) acquires, has in his possession or carries any firearm or ammunition in contravention of section 3; or
(b) acquires, has in his possession or carries in any place specified by notification under section 4 any arms of such class or description as has been specified in that notification in contravention of that section; or
(c) sells or transfers any firearm which does not bear the name of the maker, manufacturer's number or other identification mark stamped or otherwise shown thereon as required by sub-section (2) of section 8 or does any act in contravention of sub-section (1) of that section; or
(d) being a person to whom sub-clause (ii) or sub-clause (iii) of clause
(a) of sub-section (1) of section 9 applies, acquires, has in his possession or carries any firearm or ammunition in contravention of that section; or
(e) sells or transfers, or converts, repairs, tests or proves any firearm or ammunition in contravention of clause (b) of sub-section (1) of section 9; or
(f) brings into, or takes out of, India, any arms or ammunition in contravention of section 10; or
(g) transports any arms or ammunition in contravention of section 12; or
(h) fails to deposit arms or ammunition as required by sub-section (2) of section 3, or sub-section (1) of section 21; or
(i) being a manufacturer of, or dealer in, arms or ammunition, fails, on being required to do so by rules made under section 44, to maintain a record or account or to make therein all such entries as are required by such rules or intentionally makes a false entry therein or prevents or obstructs the inspection of such record or account or the making of copies of entries therefrom or prevents or obstructs the entry into any premises or other place where arms or ammunition are or is manufactured or kept or intentionally fails to exhibit or conceals such arms or ammunition or refuses to point out where the same are or is manufactured or kept, shall be punishable with imprisonment for a term which shall not be less than 3 [one year] but which may extend to SC No. 27972/2016 State vs. Anisur Rehman @ Jaimni FIR No. 81/2012 Page 6 of 33 three years and shall also be liable to fine:
Provided that the Court may for any adequate and special reasons to be recorded in the judgment impose a sentence of imprisonment for a term of less than 3 [one year] (1C) Notwithstanding anything contained in sub-section (1B), whoever commits an offence punishable under that sub-section in any disturbed area shall be punishable with imprisonment for a term which shall not be less than three years but which may extend to seven years and shall also be liable to fine.
Explanation.―For the purposes of this sub-section, "disturbed area"
means any area declared to be a disturbed area under any enactment, for the time being in force, making provision for the suppression of disorder and restoration and maintenance of public order, and includes any areas specified by notification under section 24A or section 24B.] (2) Whoever being a person to whom sub-clause (i) of clause (a) of sub-section (1) of section 9 applies, acquires, has in his possession or carries any firearm or ammunition in contravention of that section shall be punishable with imprisonment for a term which may extend to one year, or with fine, or with both.
7. The case of the prosecution is that the accused had fire arm/pistol with him. Sketch of which is Ex.PW1/C. This pistol was seized from the accused from point (A) as shown in site plan Ex.PW6/A. At point A the accused was overpowered and the said pistol with four live cartridge were recovered. The public witness to this exhibit is the complainant himself. In the other site plan which is Ex.PW1/H the point A and B are the place on the public road where the two empty cartridges were recovered by the police and the point C is the place where the complainant was shot at by the accused. Hence point C must be balcony of the house of the PW-1 where he was standing and allegedly shot at by the accused. The case of the accused under Section 313 Cr. PC is that he SC No. 27972/2016 State vs. Anisur Rehman @ Jaimni FIR No. 81/2012 Page 7 of 33 is innocent. He is bad character of the area. No such incident had taken place. He was lifted from his house and beaten mercilessly by the police official by falsely claiming that he was beaten by public person. The pistol and cartridges were planted on him by the police while cooking a false story.
8. The burden of proof is on the prosecution to show that the pistol was recovered from the accused. The only public witness of the prosecution to such recovery of pistol is PW-1/complainant. His evidence has to be read cautiously keeping in view the fact that he was convicted in a case filed by the accused against him under Section 307 IPC under the same police station and he was convicted for a 03 year term with a fine of Rs.20,000/-. Appeal of which was pending before Hon'ble High Court of Delhi. In cross-examination by ld. APP PW-1 had denied that at 10:00 AM the accused had knocked at his door and started abusing in filthy language. It is denied that accused has taken out a pistol from his right dub and fired at him and his wife. It is denied that the police snatched pistol from the hands of the accused and it is further denied that pistol has four live cartridges recovered from the accused in his presence. The four public witness PW-1, PW-3, PW-4 and PW-9 have turned totally hostile to the case of prosecution. The IO in this case is SI Rohtash/PW-15 who was joined by Ct. Rohtash/PW-6 and HC Shyam Sunder/PW-14 during investigation. PW-1 is resident of House No. 99, Gali Paperwali, Chhata Lal Miyan, Chandni Mahal, Delhi which is SC No. 27972/2016 State vs. Anisur Rehman @ Jaimni FIR No. 81/2012 Page 8 of 33 shown in site plan Ex.PW1/H. The house of accused is 453, Gali Paharwali, Chhata Lal Miyan, Delhi which is shown in site plan Ex.PW6/A. In both the site plan it is not shown during evidence by the prosecution that by what path in the site plan the accused had started from House No. 99 and reached at House No. 453 after climbing at various houses and stairs. According to the complainant the accused had climbed at House No. 450 on the terrace where police and other person had also climbed. Going through terrace of various houses the accused had reached at his house. However in site plan Ex.PW6/A no terrace is shown between House No. 450 and House No. 452 and how the accused had reached from House No. 450 to House No. 453. The story of the prosecution and the accused matches at the point that the accused was arrested outside his home i.e. House No. 453. It is case of the prosecution that several public person are available and not only that they had accompanied the police, they went with the police, they went on the stairs of the houses to trace the accused and other than this such public person had also beaten the accused on which the accused had suffered injuries. However, those public person had not joined the investigation and has not become public witness. Such case of the prosecution could not be believed on the face of it in view of the fact that either those public person are disinterested at all to the apprehension of an offender by the police and also the investigation of the case or when such public person were so much interested that they could have beaten the accused after apprehension by the police so much so that police also SC No. 27972/2016 State vs. Anisur Rehman @ Jaimni FIR No. 81/2012 Page 9 of 33 cannot stop them then there is no reason to infer that such public person were apprehensive at all. In fact they were interested in bringing the offender to the book so much so that even the police person cannot stop such public person from beating the accused. Hence it cannot be said that such public person would not have joined the investigation. On this account the case of the prosecution has become doubtful.
9. PW-6 has deposed that SI Rohtash had snatched pistol from the hands of the accused and SI Rohtash had checked the pistol in which four live cartridges were found. The sketch of pistol is Ex.PW1/C. The sketch of live cartridge is Ex.PW1/D. The four live cartridges were seized vide memo Ex.PW1/F. Two empty shells were recovered outside the house on pointing out of PW-1 which were fired at by the accused at PW-1/complainant and his wife Ms. Farzana/PW-9. However PW-1 and PW-9 have denied to such recovery of pistol and cartridge. It is deposed by PW-6 that incident of gun shot had not taken place in his presence. He does not remember the exact location of Fasil road. PW-6 has deposed that accused was apprehended before reaching towards his house. Hence as per PW-6 the accused has not reached at his house or towards his house before which he was arrested. PW-6 does not remember whose signatures were obtained in the seizure memo of pistol other than his signature. It is deposed that sketch of pistol was prepared even before the registration of FIR. Since PW-6 could not identify Fasil road which creates doubt in presence of PW-6 regarding apprehension of SC No. 27972/2016 State vs. Anisur Rehman @ Jaimni FIR No. 81/2012 Page 10 of 33 accused as the Fasil road goes towards the house of the accused. It is deposed by PW-14 that IO had neither called any ballistic expert nor called any crime team at the spot. It was incumbent upon the IO to call such crime team and ballistic expert to extract some relevant evidence as to shots fired at from the pistol and what marks are left at the spot. This creates doubt to the fact that shots were fired from the pistol at the spot claimed by IO in site plan Ex.PW1/H. Had the cartridges were recovered in front of House No. 99 then there must be traces of gun shot powder not only at the place where the shot was fired but they must be available on the hands of the accused. No gun shot fire evidence as to availability of residue powder was collected from the hands of the accused by taking necessary sample. Therefore not even calling crime team and not taking the most relevant evidence both as to possession of pistol and firing of shot from the pistol has created doubt in the case of prosecution that any pistol at all was available with the accused or any gun shot was fired by the accused at all. It is admitted by PW-15/the IO as correct that he neither called any ballistic expert nor called any crime team at the spot. Even the SHO had also reached at the spot who was the senior most officer and whose statement was not recorded by the IO. The observation and direction of senior most officer are more credit worthy than other police officers present at the spot of junior rank. It is admitted by PW-16 that all the witnesses examined belonged to one particular community. 30 to 40 public person had gathered at the spot and according to IO they had refused to join the investigation which is already discussed above SC No. 27972/2016 State vs. Anisur Rehman @ Jaimni FIR No. 81/2012 Page 11 of 33 and not believed. The IO had joined only such public witness who already had enmity with the accused due to pending criminal case against them filed by the accused. Such public witness had also turned hostile to the case of the prosecution and their statements cannot be relied upon keeping in view the fact that they have not even disclosed name of any public person who were present at the spot.
10. The necessary ingredient of Section 186 IPC and Section 353 IPC were laid down in citation titled Meena @ Gorkha and Ors. Vs. State of Punjab in CRM-M-14758-2014 dated 04.04.2024 from Hon'ble Punjab-Haryana High Court and the relevant para 7 to 13 of which are reproduced hereasunder:
7. Thus, to make out an offence under this Section 186 IPC, following essentials are necessary-
i) Voluntary obstruction to a public servant.
ii) Such obstruction must be in the discharge of public functions of such public servant.
8. Section 353 IPC reads as under:
"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 to 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."
9. Thus, to make out an offence under this Section 353 IPC, following essentials are necessary -
1. That the accused assaulted, or used criminal force against the victim.
SC No. 27972/2016State vs. Anisur Rehman @ Jaimni FIR No. 81/2012 Page 12 of 33
2. that the person assaulted or against whom criminal force was used, was a public servant.
3. That when the accused assaulted or used criminal force, a. the victim was acting, in the execution of his duty as such public servant; or b. such assault, etc., was committed with intent to prevent or deter the public servant from discharging his duty, as such; or c. such assault was committed in consequence of something done, or attempted to be done, by such public servant in the lawful discharge of his duty.
10. Section 195(1) CrPC reads as under: -
"195. Prosecution for contempt of lawful authority of public servants, for offences against public justice and for offences relating to documents given in evidence.--(1) No Court shall take cognizance--
(a) (i) of any offence punishable under sections 172 to 188 (both inclusive) of the Indian Penal Code, (45 of 1860), or
(ii) of any abetment of, or attempt to commit, such offence, or
(iii) of any criminal conspiracy to commit such offence, except on the complaint in writing of the public servant concerned or of some other public servant to whom he is administratively subordinate;"
11. Perusal of the aforesaid provisions would clearly make out that ingredients of the two offences i.e. under Sections 186 and 356 IPC are quite distinct. Though, the Court cannot take cognizance of an offence committed under Section 186 IPC without there being a complaint made by the concerned public servant as per Section 195 CrPC, but there is no such requirement for offence under Section 353 CrPC.
12. Explaining the distinction between Section 186 & 353 IPC and the requirement for compliance of Section 195 CrPC for offence under Section 186 IPC, Hon'ble Supreme Court has held in the case of Durgacharan Naik and others (supra) as under: -
"We pass on to consider the next contention of the appellants that the conviction of the appellants under S.353, Indian Penal Code is illegal because there is a contravention of s.195(1) of the Criminal Procedure Code which requires a complaint in writing by the process server or the A.S.I. It was submitted that the charge under s. 353, Indian Penal SC No. 27972/2016 State vs. Anisur Rehman @ Jaimni FIR No. 81/2012 Page 13 of 33 Code is based upon the same facts as the charge under s. 186, Indian Penal Code and no cognizance could be taken of the offence under S. 186, Indian Penal Code unless there was a complaint in writing as required by s. 195(1) of the Criminal Procedure Code. It was argued that the conviction under s. 353, Indian Penal Code is tantamount, in the circumstances of this case, to a circumvention of the requirement of s. 195(1) of the Criminal Procedure Code and the conviction of the appellants under S. 353, Indian Penal Code by the High Court was, therefore, vitiated in law.
We are unable to accept this argument as correct. It is true that most of the allegations in this case upon which the charge under s. 353, Indian Penal Code is based are the same as those constituting the charge under s. 186, Indian Penal Code but it cannot be ignored that ss. 186 and 353, Indian Penal Code relate to two distinct offences and while the offence under the latter section is a cognizable offence, the one under the former section is not so. The ingredients of the two offences are also distinct. Section 186, Indian Penal Code is applicable to a case where the accused voluntarily obstructs a public servant in the discharge of his public functions but under s. 353, Indian Penal Code the ingredient of assault or use of criminal force while the public servant is doing his duty as such is necessary. The quality of the two offences is also different. Section 186 occurs in Ch. X of the Indian Penal Code dealing with Contempts of the lawful authority of public servants, while s. 353 occurs in Ch. XVI regarding the offences affecting the human body. It is well-established that s. 195 of the Criminal Procedure Code does not bar the trial of an accused person for a distinct offence disclosed by the same set of facts but which is not within the ambit of that section."
13. The legal position as enunciated by Hon'ble Supreme Court as above would make it quite clear that the ingredients of the two offences i.e. under Sections 186 and 356 IPC are quite distinct, inasmuch as Section 353 IPC is a cognizable offence, whereas Section 186 IPC is not so. Section 186 IPC is applicable, where accused voluntarily obstructs the public servant in discharge of his public functions; whereas for an offence under Section 353 IPC, ingredients of assault or use of criminal force is necessary when the public servant is doing his duty. The quality of the two offences is also different, inasmuch as Section 186 IPC occurs in Chapter X of the IPC dealing with contempts of the lawful authority of public servants, while SC No. 27972/2016 State vs. Anisur Rehman @ Jaimni FIR No. 81/2012 Page 14 of 33 Section 353 IPC occurs in Chapter XVI dealing with offence affecting the human body. It has also been clarified that Section 195 CrPC is not a bar for trial of an accused person for a distinct offence, even if disclosed by the same set of facts, but which is not within the ambit of said section.
11. It is further noted that for the applicability of Section 186 IPC the complaint under Section 195 Cr. PC is to be duly proved. In the present case the complaint under Section 195 Cr. PC is brought in evidence by PW-15 SI Rohtash as Ex.PW15/C. However the complainant in the matter is Sh. Om Prakash, Assistant Commissioner of Police. PW-15 has not deposed that he had seen ACP Om Prakash writing and signing and therefore he has not proved the complaint Ex.PW15/C on record filed under Section 195 Cr. PC. Further, it was incumbent on the prosecution to bring the complainant Sh. Om Prakash, ACP to prove the said complaint to which opportunity could have been available to the accused whether there was application of mind before filing of the said complaint or that complete record was produced before filing of the said complaint. This opportunity was not granted to the accused. Therefore it is held that the necessary requirement of Section 195 Cr. PC are not fulfilled and non-compliance of the same is a non- curable defect and renders the proceedings vide ab-initio so far as Section 195 Cr. PC is concerned. Hence the prosecution has failed to prove the complaint under Section 195 Cr. PC against the accused on account of which the accused is held entitled to acquittal under Section 186 IPC and the relevant citation in this regard is reproduced SC No. 27972/2016 State vs. Anisur Rehman @ Jaimni FIR No. 81/2012 Page 15 of 33 hereasunder:
Mohmadirfan Chhalotiya Versus State of Gujarat from Hon'ble High Court of Gujarat in Special Criminal Application No. 4105 of 2017 dated February 15, 2019 has laid down as under:
18 The conspectus of the afore-mentioned judgements establishes the following parameters:
(a) There is no bar of taking cognizance under section 195(1)(a) of the Cr.P.C. if the offences are separate and distinct having different ingredients and characteristics from those contained in section 195(1)
(a) of the Cr.P.C.;
(b) Bar of taking cognizance under section 195 of the Cr.P.C. will apply if the offences cannot be segregated and they form integral part;
(c) The offences must be committed as a part of the same transaction;
(d) Such offences can be segregated on the basis of element of public justice (viz. offences occurring in Chapter-X of the Cr.P.C.) and personal element (viz offences under ChapterXVI of the Cr.P.C.) though committed as a part of the same transaction.If the personal element largely predominates, such offence can be taken cognizance without a written complaint; and
(e) Change of label or garb of an offence or misdescribing an offence will create a bar of section 195 of the Cr.P.C. The coordinate bench of this Court in the case of Zaid Bhagar (supra) has observed that the common thread of the aforesaid proposition of law is the expression taking cognizance under section 195 of the Cr.P.C. since the opening words of the section are No Court shall take cognizance. Thus, there is no bar against the registration of the criminal case or investigation by the police or submission of a report by the police under section 173 of the Cr.P.C. I would like to further supplement the said view by observing that if after the investigation, it is found that a charge sheet is required to be filed for the distinct offences of the IPC other than which are barred under section 195 of the Cr.P.C., then the concerned Court can take cognizance of such distinct offences of the IPC. The plain and simple reading of the opening recital of section 195 of the Cr.P.C. bars taking of cognizance of the offences of the IPC mentioned therein except on the complaint in writing to the Court. The offences can be said to be distinct even if they form part of the same transaction and if their characteristics and ingredients are different. Thus, the offences which do not require any complaint as stipulated under section 195 of the Cr.P.C. will fall under the category of distinct offences if their characteristics and the ingredients are different though SC No. 27972/2016 State vs. Anisur Rehman @ Jaimni FIR No. 81/2012 Page 16 of 33 they form part of the same transaction. However, this Court while exercising the inherent powers under section 482 of the Cr.P.C. can quash the offence which is exclusively barred and stipulated under the provisions of section 195 of the Cr.P.C.
It was further laid down in case titled Shabnam Hashmi vs State of NCT of Delhi & Anr. on 7 February, 2024 in CRL.M.C. 1741/2022 & CRL.M.A. 7394/2022 where Hon'ble High Court of Delhi has held as under:
8. Sub-Section (1) of Section 195 CrPC reads as under:-
"195. Prosecution for contempt of lawful authority of public servants, for offences against public justice and for offences relating to documents given in evidence.--
(1) No Court shall take cognizance--
(a) (i) of any offence punishable under sections 172 to 188 (both inclusive) of the Indian Penal Code, (45 of 1860), or
(ii) of any abetment of, or attempt to commit, such offence, or
(iii) of any criminal conspiracy to commit such offence, except on the complaint in writing of the public servant concerned or of some other public servant to whom he is administratively subordinate;
(b) (i) of any offence punishable under any of the following sections of the Indian Penal Code (45 of 1860), namely, sections 193 to 196 (both inclusive), 199, 200, 205 to 211 (both inclusive) and 228, when such offence is alleged to have been committed in, or in relation to, any proceeding in any Court, or
(ii) of any offence described in section 463, or punishable under section 471, section 475 or section 476, of the said Code, when such offence is alleged to have been committed in respect of a document produced or given in evidence in a proceeding in any Court, or
(iii) of any criminal conspiracy to commit, or attempt to commit, or the abetment of, any offence specified in sub-clause (i) or sub-clause
(ii), except on the complaint in writing of that Court or by such officer of the Court as that Court may authorise in writing in this behalf, or of some other Court to which that Court is subordinate."SC No. 27972/2016
State vs. Anisur Rehman @ Jaimni FIR No. 81/2012 Page 17 of 33
10. In Vasudev (Supra), this Court, under similar circumstances as in the present case, held as under:-
"6. Proceedings for an offence under Section 186 IPC could have been set into, motion if there had been a formal complaint lodged with the court concerned, by the public servant who had been obstructed in the discharge of his public duties, or against whom an offence had been committed. Without such complaint, the court could not have taken seisin of the case. In fact, there was an absolute bar in terms of the language used in Section 195 Cr. P.C. (See in this regard Daulat Ram v. State of Punjab, A.I.R. 1962 Supreme Court 1206). Much has been sought to be made out from the side of the State to a writing attached with the challan signed by one Sh. S.K. Mehra, Joint Director (P.F.A.) It is mentioned as a complaint under Section 195 Cr. P.C. The name of the court of Ms. Aruna Suresh is also mentioned. After narration of the facts of the case, it has been stated in this writing that a written complaint was made to the S.H.O. Lahori Gate police station on which F.I.R. No. 789 was registered. It was next stated that the investigation had been completed, and the two accused out under arrest, and the case had been registered under Section 186 IPC. There was no specific prayer made in this writing except that the writer should be exempt from personal appearance being busy in his official duties. This writing though captioned as a complaint under Section 195 Cr. P.C., hardly fits in with the requirements of a complaint. From a public servant of the position of S.D.M., it could have been least expected that he would have looked into the provisions of the Code of Criminal Procedure and ensured that the requirements of a formal complaint were fulfilled and complied with. Moreover, such complaint should have been addressed to the court concerned. It could not have been handed over to the S.H.O., nor the S.H.O. just could have made it a part of the challan which he was submitting in the court. In fact, it was the challan on which he sought trial, and the trial court too has commenced trial on the basis of that challan. At no stage the trial court is shown to have taken cognizance of this complaint."
11. Again, in Santokh Singh Chawla (Supra), another learned Single Judge of this Court, on a detailed analysis of Section 195 CrPC and the precedents governing the same, has held as under:-
"13. Thus, it is evident from a bare reading of the statute as well as judicial precedents that for offences punishable under Section 186/188 SC No. 27972/2016 State vs. Anisur Rehman @ Jaimni FIR No. 81/2012 Page 18 of 33 of IPC, the Court is barred from taking cognizance unless a written complaint is made as per the mandate of Section 195(l)(a)(i) of Cr.P.C. by the concerned individual/authority.
iii. Registration of FIR and Investigation by Police not barred under Section 195 Cr. P.C.
14. There is also no dispute on the proposition that the bar under Section 195 Cr. P.C. exists only in relation to taking cognizance by Courts, and not upon registration of an FIR and the investigation by the police thereto.
Xxxxxx
16. Therefore, to sum up, as per mandate of Section 195 Cr. P.C., there has to be a complaint in writing made by the concerned public servant to the Court so as to enable the Court concerned to take cognizance of offence under Section 188 of IPC. Xxxxxx
24. As observed in preceding discussion, there was no illegality or infirmity in getting the present FIR registered and the subsequent investigation by the police. However the concerned public servant in the present case should have prepared a complaint as envisaged under Section 195 Cr. P.C. containing the allegations against the petitioner and the material that was brought on record during the course of investigation by the police, and the same should have been filed before the learned Magistrate or the same could have forwarded along with the chargesheet to the Court concerned.
25. In the present case, the aforesaid course was not followed by the concerned public servants. Thus, the cognizance as taken by the learned Magistrate on the basis of chargesheet was bad in law.
26. Accordingly, the order dated 08.02.2021 passed by 2021 passed by learned Metropolitan Magistrate-10, Dwarka Courts, New Delhi in Cr. Case 7950/2020 taking cognizance of chargesheet is set aside."
Xxxxxxxx
19. As far as the aforesaid communication dated 10.07.2020 from the office of Executive Magistrate is concerned, the same cannot be termed as a complaint under Section 195 Cr. P.C. for the reasons SC No. 27972/2016 State vs. Anisur Rehman @ Jaimni FIR No. 81/2012 Page 19 of 33 that firstly, the same is not addressed to the learned Magistrate or the Court, rather it has been addressed to ASI posted at P.S. Kapashera, and secondly, it merely says that a complaint had already been lodged by them with the police and thus, the same be filed under Section 195 Cr. P.C. Xxxxxxxxx
15. The judgment in Decathlon Sports India Pvt. Ltd. (Supra), cannot also come to the aid of the prosecution, as in the said case, while reiterating that Section 195 CrPC bars the Court from taking cognizance of an offence under Section 188 of the IPC and holding that in absence of a complaint, taking of cognizance is bad and such cognizance has to be quashed by the Court, the Court held that the filing of the FIR itself cannot be quashed. I may quote from the judgment as under:-
"15. Section 195 Cr.P.C. bars the court from taking cognizance in some cases i.e., offences punishable under Sections 172 to 188 IPC (both inclusive) or its abetment or attempt, or criminal conspiracy, except on the complaint in writing of the public servant concerned, or his superiors. It is settled law that in the absence of the complaint, taking of cognizance is bad and such taking of cognizance has been quashed by the High Courts and the Apex Court. The judgments relied upon by the learned counsel for petitioner, namely, Bajranglal Parikh (supra), Gurinder Singh (supra), Apurva Ghiy (supra), Sushil Sharma (supra), Saloni Arora (supra), Daulat Ram (supra) and Mohan Kukreja (supra), are all cases that have set aside orders whereby cognizance was taken by the court in the absence of a complaint of the concerned public servant.
16. But the question is whether on the basis of these judgments, the FIR itself can be quashed.
The answer needs to be in the negative. The Cr.P.C. itself requires the reporting of the commission of a cognizable offence at the Police Station. The FIR is only in compliance with prescribed procedure, and so long as it discloses the commission of an offence, and in the absence of any other valid ground, ought not to be quashed. After due investigation, the police will submit a report under Section 173 Cr.P.C. before the learned MM. Whether a complaint by the ACP concerned or only a Report under Section 173 Cr.P.C. will be filed in the present case, cannot be presumed, as filing is yet to take place. If only a SC No. 27972/2016 State vs. Anisur Rehman @ Jaimni FIR No. 81/2012 Page 20 of 33 Report under Section 173 Cr.P.C. is filed, clearly the Magistrate will not take cognizance. However, if a complaint is also submitted to the court, the existence of an FIR would not constitute a bar to the taking of cognizance. The court is to take cognizance on the complaint of a public servant and not on the report that may forward such a complaint."
12. In the present case the written complaint is made as per the mandate of Section 195(l)(a)(i) of Cr.P.C by the concerned individual/authority however the complainant himself has not appeared in the witness box and has not subjected him to cross-examination to the fact he appreciated at the time of making complaint. Nor it is proved that how the obstructed public servant had reported the matter to him and what was such complaint/document on the basis of which this complaint under Section 195 Cr. PC was drafted.
13. However it was laid down in case titled Durgacharan Naik and Ors. Vs. State of Orissa AIR 1966 SC 1775 that even though requirement of Section 195 Cr. PC were not complied with even then the accused could be tried for a distinct offence under Section 353 IPC though it is practically based on the same facts as for the prosecution under Section 186 IPC. Section 186 and Section 353 IPC are two distinct offence and Section 353 IPC is a non-cognizable offence. Under Section 353 IPC there is no necessity of obstruction of a public servant in discharge of his official duty and an ingredient of assault or use of criminal force while the public servant is doing his duty as such is necessary. Hence the prosecution has to prove that there was assault or SC No. 27972/2016 State vs. Anisur Rehman @ Jaimni FIR No. 81/2012 Page 21 of 33 use of criminal force on the public person while he was discharging his duty. The relevant para of citation are reproduced as under:
Durgacharan Naik And Ors vs State Of Orissa on 23 February, 1966 Equivalent citations: 1966 AIR 1775, 1966 SCR (3) 636, AIR 1966 SC 1775 We pass on to consider the next contention of the appellants that the conviction of the appellants under s. 353, Indian Penal Code is illegal because there is a contravention of s.195(1) of the Criminal Procedure Code which requires a complaint in writing by the process server or the A.S.I. It was submitted that the charge under s. 353, Indian Penal Code is based upon the same facts as the charge under s. 186, Indian Penal Code and no cognizance could be taken of the offence under S. 186, Indian Penal Code unless there was a complaint in writing as required by s. 195(1) of the Criminal Procedure Code. It was argued that the conviction under s. 353, Indian Penal Code is tantamount, in the circumstances of this case, to a circumvention of the requirement of s. 195(1) of the Criminal Procedure Code and the conviction of the appellants under S. 353, Indian Penal Code by the High Court was, therefore, vitiated in law. We are unable to accept this argument as correct. It is true that most of the allegations in this case upon which the charge under s. 353, Indian Penal Code is based are the same as those constituting the charge under s. 186, Indian Penal Code but it cannot be ignored that ss. 186 and 353, Indian Penal Code relate to two distinct offences and while the offence under the latter section is a cognizable offence, the one under the former section is not so. The ingredients of the two offences are also distinct. Section 186, Indian Penal Code is applicable to a case where the accused voluntarily obstructs a public servant in the discharge of his public functions but under s. 353, Indian Penal Code the ingredient of assault or use of criminal force while the public servant is doing his duty as such is necessary. The quality of the two offences is also different. Section 186 occurs in Ch. X of the Indian Penal Code dealing with Contempts of the lawful authority of public servants, while s. 353 occurs in Ch. XVI regarding the offences affecting the human body. It is well-established that s. 195 of the Criminal Procedure Code does not bar the trial of an accused person for a distinct offence disclosed by the same set of facts but which is not within the ambit of that section. In Satis Chandra Chakravarti v. Ram Dayal De(1) it was held by Full Bench of the Calcutta High Court that where the maker of a single statement is SC No. 27972/2016 State vs. Anisur Rehman @ Jaimni FIR No. 81/2012 Page 22 of 33 guilty of two distinct offences, one under s. 21 1, Indian Penal Code, which is an offence against public justice, and the other an offence under S. 499, wherein the personal element largely predominates, the offence under the latter section can be taken cognizance of without the sanction of the court concerned, as the Criminal Procedure Code has not provided for sanction of court for taking cognizance of that offence. It was said that the two offences being fundamentally distinct in nature, could be separately taken cognizance of. That they are distinct in character is patent from the fact that the former is made non-compoundable, while the latter remains compoundable; in one for the initiation of the proceedings the legislature requires the sanction of the court under S. 195, Criminal Procedure Code, while in the other, cognizance can be taken of the offence on the complaint of the person defamed. It is pointed out in the Full Bench case that where upon the facts the commission of several offences is disclosed some of which require sanction and others do not, it is open to the complainant to proceed in respect of those only which do not require sanction; because to hold otherwise would amount to legislating and adding very materially to the provisions of ss. 195 to 199 of the Code of Criminal Procedure. The decision of the Calcutta case has been quoted with approval by this Court in Basir-ul-Huq and Others v. The State of West Bengal (1) in which it was held that if the allegations made in a false report disclose two distinct offences, one against a public servant and the other against a private individual, the latter is not debarred by the provisions of s. 195, Criminal Procedure Code, from seeking redress for the offence committed against him.
In the present case, therefore, we are of the opinion that S. 195, Criminal Procedure Code does not bar the trial of the appellants for the distinct offence under s. 353 of the Indian Penal Code, though it is practically based on the same facts as for the prosecution under s. 186, Indian Penal Code.
13.1 It was further held in citation titled Gurcharan Singh Arora & Anr. vs. State 96 (2002) DLT 181 dated 04.01.2002 from Hon'ble High Court of Delhi at relevant para no. 7 which is reproduced hereasunder:
SC No. 27972/2016State vs. Anisur Rehman @ Jaimni FIR No. 81/2012 Page 23 of 33
7. In this case, there was nothing in the complaint quoted above to indicate that the complaint was made to the Magistrate for taking action under Section 186 IPC. Mere consent of the SHO for prosecution of the accused cannot be construed as the complaint.
Further, there is nothing on record to indicate that the cognizance was taken by the Magistrate on the basis of the complaint under Section 195 Cr.P.C. Therefore, the charge under Section 186 IPC against the petitioner is not sustainable. It is needless to observe that in all such cases, the complaint should be filed by the concerned public servant with a prayer to take action against the accused and whenever such complaint under Section 195 Cr.P.C. is filed along with charge-sheet under Section 173 Cr.P.C., the Courts while taking cognizance, should also take note of such complaint, to avoid any technical objection at a later stage.
14. The charge against the accused is that he had threatened the police team by brandishing pistol and threatened the police team and grappled with them. Accused had used criminal force on police team to deter them to discharge their duty. PW-15 has deposed that Insp. Vinod Kumar of PS Chandni Mahal had reached at the spot and accused did not pay heed to warning of Insp. Vinod. Accused has threatened to shoot them if anyone try to come. Hence PW-15 has deposed that he and Insp. Vinod were threatened by the accused by his pistol. However such threat to Insp. Vinod Kumar/SHO is not proved on record by the prosecution as neither he is examined as witness in the case nor his statement is recorded by IO/PW-15 during investigation of the case. Hence the threat to Insp. Vinod Kumar are concerned are not proved by the prosecution on record.
15. To bring home Section 353 IPC PW-15 must prove ingredient SC No. 27972/2016 State vs. Anisur Rehman @ Jaimni FIR No. 81/2012 Page 24 of 33 of assault and use of criminal force. Such assault committed must be done in consequence of something done or attempted to be done by such public servant in lawful discharge of his duty. Now it has to be seen that whether brandishing a pistol would come within the definition of criminal assault. The criminal assault is defined under Section 351 IPC as gesture or preparation which cause a person to apprehend that the person is about to use criminal force is said to be criminal assault. The explanation provides that mere words do not amount to assault but the words with the gesture and preparation amount to an assault. PW-15 in his entire examination-in-chief has not deposed that the accused has pointed out pistol towards him with threat to shoot him. He has deposed that when Insp. Vinod Kumar had asked the accused to hand over pistol then accused had threatened to shoot them. After that the accused started moving towards Chhata Lal Miyan. It shows that the accused has not made any gesture nor made any preparation to commit criminal assault on PW-15 or other member of police team. Keeping in view the explanation laid down under Section 353 IPC mere word of mouth does not construe criminal assault. PW-14 has deposed that accused has pointed pistol towards police party. However he has not deposed that on which of the person the gun was pointed at. In absence of this his deposition is vague in respect of pointing out of pistol by the accused and any such threat to any specific person. The prosecution has failed to prove in the site plan Ex.PW6/A or Ex.PW1/H where the accused at all threatened any of the police personnel. In such view of the matter it is SC No. 27972/2016 State vs. Anisur Rehman @ Jaimni FIR No. 81/2012 Page 25 of 33 held that there is absence of criminal force/assault if any caused by the accused on police person and in absence of which necessary ingredient as laid down under Section 353 IPC are not satisfied. On account of this accused is held entitled to under Section 353 IPC.
16. Further, in citation titled Kamaljit Singh @ Pappu vs. State of Punjab 2019 Legal Eagle (SC) 1506 from Hon'ble Supreme Court of India has observed that it is unfathomable as to how the FIR number could be noted in the search and seizure panchanamas when the same were drawn up obviously at an earlier point in time and preceded the registration of the FIR. The prosecution has to explain the discrepancy in evidence which creates serious doubt and they are fatal to the case of prosecution to which accused is entitled to benefit of doubt. The relevant para of citation is reproduced hereasunder:
xxxxxxxxxxx In addition, we find force in the argument of the appellant that witness PW-2, who claimed to have received the information telephonically and had passed it on to his contemporary who, in turn, promptly recorded the FIR concerning the offence, eventually was entrusted with the investigation of the case. This Court, in the recent decision in the case of Mohan Lal Vs. The State of Punjab - AIR 2018 SC 3853, has frowned upon the same police official being the informant and the investigating officer. The court has observed thus:
"25. In view of the conflicting opinions expressed by different two Judges Benches of this Court, the importance of a fair investigation from the point of view of an accused as a guaranteed constitutional right under Article 21 of the Constitution of India, it is considered necessary that the law in this regard be laid down with certainty. To leave the matter for being determined on the individual facts of a case, may not only lead to a possible abuse of powers, but more importantly SC No. 27972/2016 State vs. Anisur Rehman @ Jaimni FIR No. 81/2012 Page 26 of 33 will leave the police, the accused, the lawyer and the courts in a state of uncertainty and confusion which has to be avoided. It is therefore held that a fair investigation, which is but the very foundation of fair trial, necessarily postulates that the informant and the investigator must not be the same person. Justice must not only be done, but must appear to be done also. Any possibility of bias or a predetermined conclusion has to be excluded. This requirement is all the more imperative in laws carrying a reverse burden of proof."
Indeed, Manjit Singh (PW 2) had received information telephonically and had passed on the same to his contemporary who recorded the FIR but the fact remains that he himself investigated the case. The unfairness in investigation becomes more glaring when we peruse the search and seizure panchanamas. It is seen that the FIR number has been noted at the top of these panchanamas. It is unfathomable as to how the FIR number could be noted on the search and seizure panchanamas when the same were drawn up obviously at an earlier point in time and preceded the registration of the FIR. Even this discrepancy has not been explained by the prosecution at all. Furthermore, we find that the FIR has been registered by Nirmaljit Singh but he has not been examined by the prosecution and no explanation is offered in this regard as well.
17. It was similarly held at para no. 5 of citation titled Giriraj vs. State in 83 (2000) DLT 201 = Equivalent citations:
2000IAD(DELHI)893, 83(2000)DLT201, 2000(52)DRJ534 that when the Rukka was sent then at that time only the search and seizure memo bears FIR number on top of the said documents in the same ink and handwriting which indicates that these documents were prepared at the same time. The said documents must have been prepared on the spot after registration of FIR which therefore gives inference that in the said case either FIR was recorded prior to the recovery or the FIR number was inserted in the documents after registration. In both situations it seriously effect upon the veracity of the case of the prosecution and SC No. 27972/2016 State vs. Anisur Rehman @ Jaimni FIR No. 81/2012 Page 27 of 33 creates doubt about fair investigation benefit of which must go to the accused. The relevant para is reproduced hereasunder:
5. It needs to be highlighted that the rukka (Ex. PW-7/A) recites that the alleged contraband was seized at 6.10 P.M. and the rukka was despatched from the spot at 7.30 P.M. The FIR (Ex. PW-2/A) shows that the same was registered at the police station at 7.40 P.M. Surprisingly, the appellant's personal search memo (Ex. PW-4/B) and the seizure memo (Ex. PW-4/A) bear the number of the FIR (Ex. PW-2/A). The number of the FIR (Ex. PW-2/A) given on the top of the aforesaid documents is in the same ink and in the same handwriting, which clearly indicates that these documents were pre- pared at the same time. The prosecution has not offered any explanation whatsoever as to under what circumstances number of the FIR (Ex. PW-2/A) had appeared on the top of the said documents, which were allegedly prepared on the spot before its registration. This gives rise to two inferences that either the FIR (Ex. PW-2/A) was recorded prior to the alleged recovery of the contraband or number of the said FIR was inserted in these documents after its registration. In both the situations, it seriously reflects upon the veracity of the prosecution version and creates a good deal of doubt about recovery of the contraband in the manner alleged by the prosecution. That being so, the benefit arising out of such a situation must necessarily go to the appellant.
18. In the present case the search memo Ex.PW4/B, the sketch of pistol Ex.PW1/C, the sketch of four live cartridges Ex.PW1/D, the sketch of empty cartridge Ex.PW1/E all of which bears number of FIR including sections on top of the memo in the same ink in which the body of above memo was prepared. The said number should have not been there and it is pointed by the ld. Counsel for accused that instead of FIR number the investigating agency at that time had only DD number with them which must be mentioned in the said memo. In these circumstances of the case the correct preparation of above memo is doubtful and SC No. 27972/2016 State vs. Anisur Rehman @ Jaimni FIR No. 81/2012 Page 28 of 33 therefore the recovery of said cartridge whether live or empty, the recovery of pistol and search of the accused has become doubtful. It is further pointed out by ld. counsel for the accused that in photographs Ex.PW15/A (colly) the certificate under Section 65B are not produced on record. It is also not proved that by what camera such photographs were taken. It is noted that the prosecution want to show by photographs that where the bullet hit after firing whereas even the genuineness of photograph is not proved on record. There is no evidence that if such mark at such place could be caused by shot of a bullet. PW-15 has deposed that he has taken the photographs. Photographs are six in number showing six different shots whereas the pistol has to contain only six cartridge. Four live cartridge are already recovered. Only two empty cartridge were recovered and it is not shown that which are the shot pertaining to those two empty cartridge and how the IO has arrived at finding that such marks caused at such places in photographs are caused by shot of a bullet. Hence the said photographs are totally unreliable evidence.
19. The public witness were available and not joined by the prosecution except those who had already enmity with the accused. Such person who had enmity with the accused though came in evidence but all of them turned hostile to the case of the prosecution. PW-1 has deposed that 2-3 person had fired towards him and his wife and in such way he has improved upon his statement. He has denied that police official had SC No. 27972/2016 State vs. Anisur Rehman @ Jaimni FIR No. 81/2012 Page 29 of 33 snatched the pistol from the hands of the accused. He has denied that accused has pointed towards the police officials. He has denied that he alongwith Irfan, Nafees and Gulfam had followed the accused. He has denied that accused has taken out pistol and fired at him and his wife/PW-9. PW-9 does not talk at all about pistol and states only that accused came to their house and started quarreling with her husband in the morning hours. PW-8 Nafees has deposed that he does not know anything about the case. The non-joining of public witness in this matter though available at the spot creates doubt in the case of the prosecution in view of the fact that such witness were joined who the police knew that accused already had enmity with. No injuries has occurred to any person whereas accused has deposed that he was beaten badly by the police and injuries were caused to him by the police. Prosecution had not produced the medical record of the accused in evidence though it was duty of the police to get the accused medically examined. Hence such conduct of the police creates doubt in the case of the prosecution benefit of which must go to the accused. Keeping in view the above circumstances of the case and infirmities in the case of the prosecution it is held that prosecution has failed to prove the case under Section 25 r/w Section 27 of Arms Act, 1959 and accused is held entitled to acquittal under the said provisions of law.
20. Further, Section 307 IPC was levelled against the accused on the ground that accused by pistol had shot on Sh. Nooruddin and his wife SC No. 27972/2016 State vs. Anisur Rehman @ Jaimni FIR No. 81/2012 Page 30 of 33 Farzana. Both the said witness has turned hostile to the case of prosecution and their evidence is already discussed above that their evidence is doubtful with a history of prior animosity with the accused. They have not supported the case of the prosecution. There is no other witness who had seen if the accused had at all hit a shot by pistol on the person of Sh. Nooruddin and his wife Farzana and it cannot be said that accused had made any such shot on the said two witness. Even the shot of bullet are not proved by credit worthy evidence and it is already discussed above that the photograph Ex.PW15/A(colly) produced by IO in his evidence is a totally unreliable evidence benefit of which must go to the accused. The said evidence is not proved on record. Hence it is held that prosecution has failed to satisfy the necessary ingredients as laid down under Section 307 IPC and accused is held entitled to acquittal of the said offence.
21. The accused is also charged under Section 506(2) IPC on the ground that the accused had to criminally intimidated the person Irfan, Gulfam and Naresh and otheres who were chasing the accused alongwith Nooruddin. Accused was threatening to fire upon them while running away from the spot in front of gali Peepalwali, Chhata Lal Miyan till he reached the gali where house of accused is located at no. 453, Gali Baharwali, Chhata Lal Miyan. However it is already held above that evidence of Nooruddin is totally unreliable and he is hostile to the case of the prosecution. Even the recovery of pistol from the accused is held SC No. 27972/2016 State vs. Anisur Rehman @ Jaimni FIR No. 81/2012 Page 31 of 33 above doubtful much less firing of any shot. PW-3 has deposed that he does not know the accused. He does not know anything about the case. PW-4 has deposed that accused is not involved in the quarrel with PW-1 and he has not made any statement to the police. PW-9 Ms. Farzana does not know anything about the ingredient of Section 506 IPC if committed by the accused. PW-8 Sh. Nafees has deposed that he does not know anything about the case. One another aspect of the case to be noted is that the PW-15 has deposed that accused was brandishing pistol while going from house of PW-1 situated at no. 99 towards his own House no. 453 through Fasil road. The accused brandished the pistol to shoot PW- 15 and Insp. Vinod and it is not deposed by PW-15 that if any of the public person were threatened by the accused. It shows that public person and witness and police person were together when the accused was allegedly trailed from House no. 99 which is residence of PW-1 and going to House no. 453 which is residence of the accused. Therefore there is no reason with PW-15 in not seeing if any threat was extended by the accused to such public person and witness. However the deposition of entire prosecution witness does not substantiate the above fact. The case of the prosecution is full of inherent improbabilities, inconsistencies and doubt from which it is concluded that the prosecution has failed to prove its case beyond reasonable doubt against the accused. Hence accused is held entitled to benefit of doubt.
22. In such view of the matter, it is held that prosecution has SC No. 27972/2016 State vs. Anisur Rehman @ Jaimni FIR No. 81/2012 Page 32 of 33 failed to prove all the charges levelled against the accused Anisur Rehman @ Jaimni. The case of prosecution is rendered with inherent improbabilities, inconsistencies and contradiction and thereby doubt has arisen many times benefit of which must go to the accused. Hence the accused Anisur Rehman @ Jaimni stands acquitted of all the above offences. The earlier personal bond of accused stands cancelled and surety bond stands discharged. The documents, if any, be returned to the surety and endorsement on security documents is allowed to be de- endorsed. In terms of Section 437A Cr. PC, accused has furnished his bail bond as directed which will be in force for period of six months from the date of this judgment. Case property be confiscated to the State.
File be consigned to Record Room.
Announced in the open Court on 26.04.2024. JOGINDER Digitally signed by JOGINDER PRAKASH NAHAR PRAKASH Date: 2024.04.26 16:04:19 NAHAR +0530 (JOGINDER PRAKASH NAHAR) ADDITIONAL SESSIONS JUDGE (FTC-01) CENTRAL/TIS HAZARI COURT DELHI SC No. 27972/2016 State vs. Anisur Rehman @ Jaimni FIR No. 81/2012 Page 33 of 33