Delhi District Court
State vs . Tanveer Ahmed on 5 October, 2012
IN THE COURT OF SH. DEEPAK SHERAWAT
METROPOLITAN MAGISTRATE, SOUTH EAST DISTRICT
SAKET COURTS, NEW DELHI
FIR No. 59/2002
P.S. Sarita Vihar
U/s 332/353/186 IPC
State Vs. Tanveer Ahmed
JUDGMENT :
a. Sl. No. of the case : 1470/2
b. Date of Institution : 05.10.2002
c. Date of Commission of Offence : 31.01.2002
d. Name of the complainant : Sh. Pyar Singh
s/o Sh. Man Singh
e. Name of the accused and his : Tanveer Ahmed
parentage and address S/o Asgar Ahmed
R/o G51, Abul Fazal
Enclave, PartII, New Delhi
f. Offence complained of : U/s 332/353/186 IPC
g. Plea of the accused : Pleaded not guilty
h. Order reserved : 05.10.2012
i. Final Order : Acquitted
j. Date of such order : 05.10.2012
1. The accused in this case was sent up for trial for the commission of FIR NO. 59/2002 PAGE 1 OF PAGE 10 PS SARITA VIHAR offence U/s 332/353/186/34 IPC.
2. The facts in brief are that the complainant namely Pyar Singh was working as J.E in DDA. On 31.01.2002, at about 9.40 a.m., he along with his associate Babu Lal and other officers reached G15, Shahin Bagh, Abul Fazal PartII to distribute Call Memo notice. In the meanwhile, accused Tanveer Ahmed came there and asked the complainant not to distribute the said Call Memo Notices and started abusing them and snatched all the 25 Call Memo Notices from the hands of the complainant and handed over the same to the owner of the H.no. G15 who kept those notice inside the room and locked the house from outside. Thereafter accused Tanveer Ahmed started abusing the complainant and also beat him and caused injuries to him. On the basis of complaint of complainant, present case FIR was registered. During the investigation site plan was prepared. Statement of witnesses were recorded. Accused was arrested and after completing the other formal investigation, the challan was presented before the court for trial.
3. A prima facie case having been made out against the accused, charge was framed against accused on 13.11.2002 under section 332/353/186 IPC to which he pleaded not guilty and claimed trial.
4. To prove its case against the accused, the prosecution has examined seven FIR NO. 59/2002 PAGE 2 OF PAGE 10 PS SARITA VIHAR witnesses namely Pyar Singh as PW1, Babu Lal as PW2, HC Mohd. Hanif as PW3, Sh. N.K. Prabhakar as PW4, Ct. Brij Bhushan as PW5, Dr. Biplab Mishra as PW6 and Retd. SI Jaipal Singh as PW7.
5. PW1 Pyar Singh has testified that on 31.01.2012, he along with PS Sh. Babu Lal had gone to premises no. G15, Shahin Bagh, Abul Fazal, Part II at about 9.40 a.m. to distribute the Call Memo notice to its owner and they had to distribute total 25 notices to defend encroachment of the property. PW1 further testified that they were standing outside the property G15. In the meanwhile, accused Tanveer Ahmed present in the court came in his green Maruti car and took the notices from his PS Babu Lal and handed over the same to someone from H.no. G15 and asked them to flew away from there. PW1 further testified that he requested the accused to give back the said notices to him but accused hit on his face with his fist due to which blood started oozing out from his mouth. PW1 further testified that accused started abusing him, his P.S and other officers of the DDA and asked them to go away from there. PW1 further testified that he shouted "bacho bachao" and came to Dr. Nasir Hussain STD Booth and made a call to the police on 100 number. PW1 further testified that when he returned back to the spot, he did not find Babu Lal and accused Tanveer and they had moved some distance from the spot. PW1 further testified that he saw accused while threatening, abusing and warning stating that he would shoot DDA officials in their back. PW1 further testified that he also took the photographs from his camera vide Ex. P1 and P2. PW1 further testified that after sometime police reached the spot but the accused had already FIR NO. 59/2002 PAGE 3 OF PAGE 10 PS SARITA VIHAR been fled from the spot. Police recorded his statement vide Ex. PW1/A. Police had also prepared the site plan at his instance. Police had also got him medically examined. PW1 further testified that the 25 notices which the accused had snatched from him, could not be recovered by the police. In his cross examination , PW1 has testified that he did not hand over any carbon/photocopy of the call memo/notices to the police but they were approximately 25 in numbers. PW1 further testified that at the time of alleged incident, nobody was present at the spot except himself, his P.S Babu lal and Tanvir Ahmed. PW1 further testified that accused Tanvir Ahmed was known to him by name or face as he had booked his property as he had made unauthorised construction.
6. PW2 Babu Lal has testified that on 31.01.2002, he along with JE Piar Singh had gone to Abul Fazal Enclave PartII to serve the Call Memo Notices to 25 encroacher of the Government land and that time they were standing outside the H.no G15,Shahin Bagh. In the meanwhile, accused Tanvir Ahmed present in the court came in a Maruti Car and asked them as to what they were doing there on which he replied that they had came there to serve the notices. PW2 further testified that the accused had snatched the 25 notices from him and handed over the same to the person who came out the house of premises no. G15 and started abusing and threatening that "bhag jao yahan se varna pitoge". PW2 further testified that when JE Piar Singh protested the accused and asked him to return the notices, the accused gave fist blow on the mouth of J.E Piar Singh due to which blood started oozing out from his mouth. PW2 further testified that he tried to pacify the matter and separated J.E FIR NO. 59/2002 PAGE 4 OF PAGE 10 PS SARITA VIHAR from accused and thereafter JE Piar Singh went to make a call. PW2 further testified in between accused had continued to gave threats to him and DDA officers that he would kill him and lift his children. PW2 further testified that after sometime police reached the spot and recorded the statement of JE Piar Singh and took him for his medical examination. PW2 further testified that police also recorded his statement and prepared the site plan.
In his cross examination, PW2 has testified that all the Call Memos/Notices were in the bag of J.E. Piar Singh and they were 25 in total.
7. PW3 HC Mohd. Hanif has testified that on 31.01.2002, on receipt of rukka through Ct. Brij Bhushan, he recorded the present case FIR vide Ex. PW3/A. Ld. counsel for accused did not prefer to cross examine PW3.
8. PW4 N.K. Prabhakar has testified that on 21.08.2002, he had given a complaint in the court of Sh. Sanjay Garg, MM regarding the incident dated 31.01.2002 committed with Pyar Singh(JE) and Babu Lal(PS) vide complaint Ex. PW4/A. In his cross examination, PW4 has testified that the call memos/notices were 3035 in numbers.
9. PW5 Ct. Brij Bhushan has testified that on 31.01.2002, at about 10.00 a.m., SI Jaipal received DD no. 3A, regarding quarrel in front of G15, Shaheen Bagh. They both reached there where Pyar Singh J.E of FIR NO. 59/2002 PAGE 5 OF PAGE 10 PS SARITA VIHAR DDA and P.S Babu Lal met them and disclosed that one Tanvir Ahmed had snatched their notices/ Call Memos from them and they were beaten by him. PW5 further testified that IO recorded the statement of Pyar Singh and prepared the rukka and he got the case FIR registered. PW5 further testified that accused Tanvir Ahmed present in the court was arrested at the instance of complainant. PW5 further testified that he took the accused as well as complainant to AIIMS hospital for medical examination and thereafter they came back at the spot and IO recorded his statement. PW5 further testified that the accused was arrested vide Ex. PW5/A and his personal search was conducted vide Ex. PW5/B. In his cross examination, PW5 has testified that they did not make any DD entry at the time of arrival and departure from the PS.
10. PW6 Dr. Biplav Mishra has testified that on 31.01.2002, SI Jaipal Singh brought injured Pyar Singh for medical examination and on his examination, he found that there was no significant external injuries present and patient's vital were stable and his report is Ex. PW6/A. Ld. Counsel for accused did not prefer to cross examine PW6.
11. PW7 Retd. SI Jaipal Singh has also deposed the same facts as deposed by PW5. PW7 further testified that he prepared the rukka vide Ex. PW7/A and also prepared the site plan at the instance of Pyar Singh and Babu Lal vide memo Ex. PW7/B. In his cross examination, PW7 has testified that he did not know the name of the owner of premises no. G15. PW7 further testified that he had not seen the notices which had to be served upon the houses in Shahin Bagh.
FIR NO. 59/2002 PAGE 6 OF PAGE 10 PS SARITA VIHAR
12. After closing of prosecution evidence, statement of accused was recorded U/s 313 r/w. 281 of Code of Criminal Procedure Code,1973. In his statement, accused denied to have committed the offence and claimed to have been falsely implicated in this case. He further denied to lead any evidence in her defence.
13. I have heard the Ld. APP for the State and Ld. Counsel for the accused and also perused the record.
14. The charge against the accused is that he obstructed PW1 and PW2 in the discharge of their official duty and assaulted PW1. PW1 and PW2 are alleged to have been working as Junior Engineer at the time of incident and they had gone to serve notices upon various residents of the locality where occurrence took place.
15. The evidence calls for a carful scrutiny to see whether all the ingredients of the offence with which accused has been charged have been by the prosecution beyond reasonable doubt. In the present case, the complainant PW1 was working as a Junior Engineer in DDA when the assault took place and as per his testimony on the day of incident he had gone to the spot to distribute call memos. However, this fact that he along with his associate had gone to distribute call memo has not been proved by adducing any cogent evidence. It was necessary for the prosecution to prove that at the time of incident, the complainant was a public servant and that he was discharging his official duty. Discharge of official duty can be proved by establishing the act or duties which the victim was FIR NO. 59/2002 PAGE 7 OF PAGE 10 PS SARITA VIHAR performing at the time when he was obstructed and assaulted. Before proving the factum of obstruction, it is essential for the prosecution to establish those duties which were assigned to the public servant which he intended to perform and which he was not allowed by the accused to do.
16. The prosecution has not produced any record from the department that PW1 and PW2 had gone to distribute call memos as alleged by them in their testimonies. The call memos were to be served upon those inhabitants of the locality who had committed encroachments over the land. As per testimony of PW1, there were 25 notices/memos which were to be served. But no list of such encroachers and their addresses has been placed on record. Both PW1 and PW2 have deposed that at the time of incident, they were having the notices, but the same were wrested away by the accused and handed over to someone residing at H.No. G15 of the village. But there is no clue as to who this someone was. It is not the case of the prosecution that the person who was handed over those memos by the accused fled away from the scene or could not be located. In fact, no investigation whatever has been conducted on this aspect, though PW1 and PW2 have specifically provided the address where said person was residing. The record does not show if any efforts were made to apprehend said person and seize those memos from him.
17. This fact is rendered further doubtful with PW1 in his cross examination categorically admitting the fact that he had not taken any call memo/notices from the office. He has also affirmed that if any notice is FIR NO. 59/2002 PAGE 8 OF PAGE 10 PS SARITA VIHAR prepared; a carbon copy thereof is kept in the office record. But no such record has been produced in the court. PW2 at one point of his cross examination has stated that all the call memos were lying in the bag of PW1. It is not the case of the prosecution that the accused snatched the bag of the PW1 and took out all the memos. Thus there is no conclusive evidence to establish that PW1 and PW2 were discharging their official duties when they were obstructed by the accused. At least, there exists reasonable doubt with regard to this fact.
18. The incident has taken place at a public place but no public person was joined in the investigation. There is no explanation for the same though it has come in the evidence of PW1 that he after incident shouted for help and rushed to the STD booth of one Dr. Nasir Hussain. Even this Nasir Hussain has not been cited as a witness in the charge sheet who would have proved material witness. His testimony would have at least proved if any blood was coming out from the mouth of PW1.
19. The act of assault on the PW1 and consequent injury has also not been proved beyond reasonable doubt. Both PW1 and PW2 have stated that accused gave a fist blow to PW1 and blood started oozing out from the mouth of PW1. However, as per the medical report proved as Ex. PW6/A, no injury was found on the person of PW1. As per the testimony of PW1, after having received blow from the accused, he received injury on his mouth resulting in coming out of blood. However, it has not been cleared by any witness as to how the said blood was cleared.
Whether the same was cleared by PW1 himself by using some
FIR NO. 59/2002 PAGE 9 OF PAGE 10
PS SARITA VIHAR
handkerchief or any other thing. The Investigating Officer of the case has also not made any effort to find out this fact.
20. Another thing which is very important is the absence of motive on the part of the accused person to assault the complainant PW1. It is not the case of the prosecution that the PW1 was also having notice against the accused which the accused did not want to be served upon him. It does not appear to be natural and convincing that accused would beat the complainant without any reason or motive. No motive whatever has been imputed for the assault.
21. All these infirmities in the prosecution evidence seriously reflects on the varacity of prosecution case the benefit whereof must go to the accused.
22. In the result, I find that Prosecution has failed to prove its case against the accused beyond reasonable doubt and he is given the benefit of doubt and therefore accused Tanvir Ahmed is acquitted for the offence punishable U/s. 332/353/186 IPC for which he stands charged. Announced in the Open Court On 05.10.2012 (DEEPAK SHERAWAT) Metropolitan Magistrate South East District/New Delhi FIR NO. 59/2002 PAGE 10 OF PAGE 10 PS SARITA VIHAR F.I.R. 59/02 P.S. Sarita Vihar 05.10.2012 Present: Ld. APP for the State.
Accused on bail with counsel.
Vide my separate judgment/order announced and dictated in the open court, accused is acquitted for the offence punishable U/s. 332/353/186 IPC for which he stands charged.
Accused is readmitted to bail on furnishing personal bond in the sum of Rs.15,000/ with one surety in the like amount. Bail bond furnished. Same is accepted. As per section 437A of the Cr.P.C, as amended vide the Amendment Act, which came into force on 31.12.2009, the accused shall remain bound by the personal as well as by the surety for a period of six months from today.
File be consigned to Record Room.
(Deepak Sherawat)
MM/South Delhi/05.10.2012
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PS SARITA VIHAR