Delhi District Court
State vs . Mohd. Azim on 2 September, 2022
IN THE COURT OF SH. SNEHIL SHARMA, METROPOLITAN
MAGISTRATE-08, SOUTH EAST DISTRICT, SAKET
COURTS, SAKET, NEW DELHI
JUDGMENT
STATE VS. Mohd. Azim
FIR NO: 137/2021
P. S. Jamia Nagar
U/s 188 IPC
a Sl. No. of the case : 2959/2022
b Date of commission : 08.04.2021
c Date of institution of the case : 29.03.2022
d Name of the complainant : ASI Jai Prakash
E Name of the accused and his : Mohd Azim, S/o Sh. Nazaruddin,
parentage R/o D42, Gali no.11, West Zakir
Nagar, Okhla, New Delhi.
f Offence complained of : 188 IPC
g Plea of accused : Not guilty
h Orders reserved on : 27.08.2022
i Final order : Accused is convicted for the
offence punishable u/s 188 IPC
j Date of judgment : 02.09.2022
BRIEF STATEMENT OF REASONS FOR THE DECISION
1. As per the case of the prosecution that on 08.04.2021, at about 11pm, at Zakir Nagar, Zakir Nagar Market, accused Mohd. Azim knowing that by an order no. 1750- 1789/SO/ACP/NFC dated 06.04.2021 promulgated by a public servant lawfully empowered to promulgate the said order FIR No. 137/2021 PS Jamia Nagar PAGE 1 OF PAGE 8 where under accused was found wandering during night curfew as restriction was imposed on movement of individuals in NCT of Delhi from 10 pm to 5 am till 30.04.2021, failing to follow the order and thereby committed an offence punishable u/s 188 IPC. On the said complaint, FIR was registered and investigation was carried out. After completion of the investigation, chargesheet was filed against the accused Mohd. Azim.
2. Notice in respect of the offence punishable under Section 188 IPC was served upon the accused, who pleaded not guilty and claimed trial.
3. The prosecution in all examined 2 witnesses. PW-1/ ASI Jai Prakash deposed that on 08.04.2021, he was posted as ASI at PS Jamia Nagar. On that day, he along with Ct. Waseem Raza was on patrolling duty in the area of Zakir Nagar. At about 11 pm, when they reached near Zakir Nagar dhallan, they found one person was going without mask who disclosed his name as Azim which was against the prohibitory order issued by ACP, NFC which is now Ex. PW-1/A. He asked him where he was going, accused Azim informed him that he was going to his house and he forgot his mask at his home and also, he informed that he was not aware about the order of the Delhi Government wherein, night curfew was imposed from 06.04.2021 to 30.04.2021. Thereafter, he prepared the rukka and sent Ct. Waseem Raza to the PS for the purpose of FIR No. 137/2021 PS Jamia Nagar PAGE 2 OF PAGE 8 registration of FIR. The rukka in this regard is now Ex. PW- 1/B. He handed over the same to Ct. Waseem Raza and sent him to PS for registration of FIR. Thereafter, Ct. Waseem Raza returned to the spot and handed over copy of FIR and original rukka to him. He arrested the accused and the arrest memo in this regard is Ex. PW-1/C and also conducted his personal search vide memo Ex.PW1/D. Thereafter, the accused was released on police bail. PW-1/ ASI Jai Prakash prepared the site plan which is Ex. PW-1/E. Thereafter, he recorded statement of accused and prepared the challan. PW1 had correctly identified the accused Azim.
4. PW-2/Ct. Waseem Raza deposed that on 08.04.2021, he along with ASI Jai Prakash were present at beat area. When they reached near Zakir Nagar Dhalaan at about 11 pm, they found that one person was wandering without wearing the mask in night which was against the prohibitory order issued by ACP, NFC. The said person disclosed his name as Azim. They asked him why he was not wearing the mask to which accused Azim informed them that he had forgotten the mask at his house and he had gone for some work to NFC. Thereafter, IO prepared the rukka and sent him to the PS for the purpose of registration of FIR. He went to the PS, got registered the FIR and after registration of the FIR, he returned to the spot and handed over the copy of FIR and original rukka to ASI Jai Prakash. Thereafter, IO arrested the accused, the arrest memo in this regard is already Ex. PW1/C and IO prepared the site plan FIR No. 137/2021 PS Jamia Nagar PAGE 3 OF PAGE 8 which is Ex. PW1/A. Thereafter, the accused was released on personal bond by the IO. IO recorded his statement at PS. Accused Azim was present in the court and witness correctly identified him.
5. Vide order dated 06.08.2022, in compliance with the provisions of Section 294 of the Cr.P.C., the accused was called upon to admit or deny the genuineness of documents which were admitted by the accused and, therefore, exhibited as Ex.A-1 and Ex.A-2 respectively. Accordingly, witnesses were dropped from the list of prosecution witnesses.
6. In his statement recorded under Section 313 Cr.P.C., the accused has denied the entire incriminating evidence put to him. He stated that he is innocent and has not committed any offence. He stated that he has been falsely implicated in the present case and he was wearing the mask and was coming from the medical shop after buying some medicine. He also admitted that he was roaming in the night curfew time between 9 pm to 6 am but, as per him it was essential as he was unwell and therefore, went to buy some medicines. He further stated that he is innocent and has not committed any offence.
7. It has been argued by Ld. APP for the State that case of the prosecution has been fully proved as all the evidences are in line with the prosecution story. On the other hand, Ld. Counsel for accused has argued that accused is innocent and he has been falsely implicated in the present case and that there is contradiction in the testimony of prosecution witnesses.
FIR No. 137/2021PS Jamia Nagar PAGE 4 OF PAGE 8
8. I have heard Ld. APP for the State and Ld. Defence counsel for accused and considered the respective arguments as well as gone through case file very carefully.
9. In order to prove its case, prosecution needs to prove following:
1. There must be an order promulgated by a public servant ;
2. Public servant must have been lawfully empowered to promulgate such an order ;
3. A person must know the order and disobey it ;
4. Such disobedience must likely to cause or tends to cause danger to human life.
10. As per the fact, the period which is mentioned for the offence is very well within the period of COVID 19 spread wold wide, which was a pandemic on human life and vast measurement and steps were being taken to contain the spread of corona virus to save the life. Except the necessary institutes, all the activities in the nation were stopped. Here perusal of the file shows that he violated the Order of ACP i.e. order no. 1750-1789/ACP NFC, dated 06.04.2021 is made part of the charge-sheet which says that night curfew is imposed from 10 am to 5 am till 30.04.2021 and court also take notice of certain facts to be true without either party requiring to produce evidence for their support and pandemic Covid 19 is one of the fact. Hence, proving these facts is a waste of time and effort.
11. Therefore, order of ACP was widely known fact that mask was compulsory / mandatory and night curfew was also FIR No. 137/2021 PS Jamia Nagar PAGE 5 OF PAGE 8 imposed to save oneself from corona virus and ACP being public servant was lawfully empowered.
12. Further, from the testimony of PW1 and PW2, we found that accused was correctly identified by them. PW2 also corroborated the statement of PW1 on the point that accused was roaming during the night curfew without mask.
13. Perusal of the case file also shows that accused in his statement recorded u/s 313 Cr.P.C. admits that he was wandering in night and having a mask and that he was unwell and so went to buy some medicines. But, even after giving a chance to lead evidence, he did not brought any documentary proof to prove his ill-health. Also, if he was unwell, he should not have been roaming outside. Further he can send some other member to buy the medicine or can order on-line but same was not done. Moreover, this fact never came as suggestion during the examination.
14. For the argument that no public person is made witness, this court finds that no public persons were present there due to night curfew and it was expected that no public persons were present at that time. It pertinent to note here that when the whole world was suffering from pandemic and resulted in loss of many human life and guideline were issued by various government agencies to avoid spread of pandemic, accused was having knowledge of corona virus but found wandering during night curfew without any valid reason. This reason is not sufficient to allow accused to be part of spreader of pandemic.
FIR No. 137/2021PS Jamia Nagar PAGE 6 OF PAGE 8
15. Thus from the fact, it is found that deposition made by PW1 and PW2 remained unchallenged and unrebutted. Nothing contrary or discrepancies came on record which could benefit the accused. Neither accused could justify his reason for wandering during night curfew nor any medical documents were brought as defence or documentary proof. No other witness is brought to contradict the testimony of the PWs, who can suggest the accused action justified. Hence, it is clear that accused not only disobeyed the order issued by ACP but may also spread the corona virus or may get corona virus from others. Here after appreciation of the evidences, this court finds that both the police officers are not only the investigating officer but also the star witness of the fact that accused was wandering during night curfew. Hence, PW1 and PW2 are found wholly reliable.
16. Moreover, with respect to public person not cited as witness, this court found no reason to show why police officer would falsely implicate the accused. As held in Karamjit Singh v. State (Delhi Admn.), (2003) 5 SCC 291, the presumption that a person acts honestly applies as much in favor of a police personnel as of other persons and it is not a proper judicial approach to distrust and suspect them without good grounds. There is no principle of law that without corroboration by independent witnesses, their testimony cannot be relied upon.
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17. In a well-balanced, well-analysed, well-articulated, well-reasoned and well-framed judgment titled Amar Singh vs The State (NCT Of Delhi) in Criminal Appeal No. 335 of 2015, delivered as recently as on October 12, 2020, the Supreme Court has laid down in no uncertain terms that conviction can be based on the testimony of a single eye witness so long he is found to be wholly reliable.
18. Thus, in view of the above, accused Mohd. Azim is convicted u/s. 188 IPC.
19. Let the convict Mohd. Azim be heard on the point of sentence.
Copy of this judgment is given to convict Mohd. Azim.
Announced in the open court (Snehil Sharma) on 02.09.2022 Metropolitan Magistrate-08, South East, Saket, New Delhi.
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