Delhi District Court
State vs Asif Mohd. Khan And Ors on 18 September, 2024
IN THE COURT OF MS. TANYA BAMNIYAL
ADDITIONAL CHIEF JUDICIAL MAGISTRATE 03
ROUSE AVENUE DISTRICT COURT, NEW DELHI
State Vs Asif Mohd Khan (Ex. MLA) And Ors.
CNR No. DLCT12-000065-2022
CR Cases No. 07/2022
FIR No. 79/2010
Police Station : Jamia Nagar
Date of institution of the case : 07.06.2022
Date of reserving for judgment : 29.08.2024
Date of pronouncement of judgment : 18.09.2024
a. Serial No. of the case 07/2022
b. Date of commission of offence 14.03.2010
c. Name of the complainant SI Jitender Singh
d. Name, parentage and address of 1. Asif Mohd Khan, S/o Sh.
accused persons. Asfaaq Mohd Khan, R/o H.
No. 1, Shaheen Bagh, Jamia
Nagar, New Delhi.
2. Aqeel Ahmed, S/o Sh.
Fakhruddin, R/o H. No.
151/14, Gali No. 14, Zaki
Nagar, Jamia Nagar New
Delhi.
3. Javed Nisar Khan, S/o Sh.
Abdul Nisar Khan, R/o H.
No. 285, Gali No. 6, Zakir
Nagar, Jamia Nagar, New
Delhi.
4. Mukaram Agha @ Mikki,
FIR No. 79/10 PS Jamia Nagar
State v. Asif Mohd Khan (Ex MLA) & Ors. 1 of 52
S/o Sh. Aarif Ali Agha, R/o
H.No. 635, Gali No. 9, Zakir
Nagar, Jamia Nagar, New
Delhi.
5. Nawab Ahmad, S/o Sh.
Riyaz Ahmad, R/o D-241,
Abul Fazal Enclave, Jamia
Nagar, New Delhi.
6. Siraj, S/o Sh. Riyaz, R/o H.
No. B-53, Gali No. 9,
Samaypur Badali, Delhi.
7. Wahab, S/o Sh. Riyaz, R/o
H. No. B-53, Gali No. 9,
Samaypur Badali, Delhi.
e. Offence complained of U/s 147/148/149/186/353/332/427
IPC and Section 3 of PDPP
Act
f. Plea of accused persons Pleaded not guilty
g. Final order Acquitted
h. Date of judgment 18.09.2024
JUDGEMENT
1. Vide this judgment, this court shall proceed to decide the instant matter emanating from the FIR no. 79/2010 registered u/s 147/148/149/186/353/332/427 Indian Penal Code, 1860 (in short 'IPC') and Section 3 of Prevention of Damage to Public Property Act, 1984 (in short PDPP Act).
FIR No. 79/10 PS Jamia Nagar State v. Asif Mohd Khan (Ex MLA) & Ors. 2 of 52
2. At the outset, it is worth mentioning here that this court is a special/ designated court constituted for trying the cases instituted against Members of Parliament/Members of Legislative Assemblies. In the matter at hand, the accused Asif Mohd Khan was a former MLA from Okhala constituency.
Filing of charge sheet and framing of charge:
3. After the completion of investigation, the charge sheet in the instant case was filed on 07.06.2022 u/s 147/148/149/186/332/353/427 of IPC and Section 3 of PDPP Act. The delay in filing the charge sheet was condoned by Ld. Predecessor of this court vide order dated 28.06.2022 and cognizance of the offence was taken.
3.1 Subsequently, vide order dated 29.10.2022, passed by Ld. Predecessor of this court, all the accused persons were discharged from the present case. However, revision petition was filed by the State against the order dated 29.10.2022 and the same was allowed. Consequently, the matter was remanded back to this court for framing of charge for the offences u/s 147/148/186/353/332/427 of IPC and 3 PDPP Act against the accused persons.
3.2 Since, prima facie case for commission of offences was made out against the accused persons namely Asif Mohd FIR No. 79/10 PS Jamia Nagar State v. Asif Mohd Khan (Ex MLA) & Ors. 3 of 52 Khan, Wahab, Siraj, Aqeel Ahmed, Javed Nisar Khan, Mukaram Agha @ Mikki and Nawab Ahmed, the charge was framed against them on 29.03.2023 u/s 147/148/186/353/332/427 IPC and Section 3 of PDPP Act, to which they pleaded not guilty and claimed trial.
Brief Statement of facts:
4. Succinctly, stated the facts of the present case are that the FIR was registered upon the complaint dated 15.03.2010 of the complainant SI Jitender Singh, D-894 wherein he has stated that on 14.03.2010, at around 10:45 PM, the then MLA of the area Asif Mohd. Khan came to the police station, Jamia Nagar with his 150-200 supporters and started raising slogans against Pravez Hashmi. It is further stated in the complaint that Asif Mohd Khan with his 3-4 supporters came inside the police station and started putting pressure on the police officials to lodge an FIR at his instance and arrest the accused persons.
4.1 It is also stated in the complaint that when the details of the complaint were being noted down in the SHO room, then at around 11:20 PM Parvez Hashmi (Rajya Sabha MP) came to the police station with some of his supporters and on seeing them, supporters of Asif Mohd. Khan started sloganeering against Parvez Hashmi and started pelting stones on the walls of police station and when the situation got out of control of FIR No. 79/10 PS Jamia Nagar State v. Asif Mohd Khan (Ex MLA) & Ors. 4 of 52 the police staff, a warning was made to all the people through loud hailer that it was against the law and they should disperse but the crowd did not listen. Due to stone pelting, Ct. Om Prakash and HC Prakash Chand sustained injuries and vehicles of MLA Asif Mohd Khan and MP Pravez Hashmi with DL no. DL3CY9243 and DL3CAZ0491, respectively including police station property got damaged. 4.2 Thus, in nutshell, it is the case of the prosecution that the accused persons namely Asif Mohd. Khan (ex MLA), Wahab, Siraj, Aqeel Ahmad, Javed Nisar Khan, Mukaram Agha @ Mikki and Nawab Ahmad with a common object obstructed the police officials in their duties by use of lathis and dandas and also indulged in stone pelting and also destroyed government property. Hence, accused persons are charged with offences u/s 147/148/186/332/353/427 of IPC and Section 3 of PDPP Act.
Admission/Denial of Documents u/s 294 of the Code of Criminal Procedure, 1973:
5. During the course of evidence, statement of accused persons was recorded under section 294 of the Code of Criminal Procedure, 1973 (in short 'Cr.P.C.') wherein they admitted the identity and genuineness of the following documents without admitting their contents.
FIR No. 79/10 PS Jamia Nagar
State v. Asif Mohd Khan (Ex MLA) & Ors. 5 of 52
Srl. Documents Exhibits
No.
1. FIR No. 79/2010, PS Jamia Nagar Ex. Z1
2. MLC of SI Prakash Chand dated Ex. Z2
15.03.2010
3. MLC of ASI Om Prakash dated Ex. Z3
15.03.2010
4. Superdarinama of car bearing Ex. A1
registration no. DL3CY9243
5. Copy of order of released of vehicle Ex. A2 bearing registration no. DL3CY9243 passed by Ld. ACMM, South East dated 21.05.2010.
Evidence Led By The Prosecution:
6. In order to prove the case, the prosecution has examined 24 witnesses in total, who are as under:
Prosecution Name of the Role of the witness Witness Witness PW1 Sh. Faizal Hashmi Independent witness PW2 Sh. Farhan Hashmi Independent witness/Eye witness PW3 Sh. Javed Hashmi Independent witness/Eye witness PW4 ASI Om Prakash Police witness/Eye witness PW5 Ret. SI Prakash Chandra Police witness/Eye witness PW6 Inspector Anand Prakash Police witness/Eye witness PW7 Retd. ASI Ram Niwas Police witness/Eye witness PW8 ASI Rambir Police witness/Eye FIR No. 79/10 PS Jamia Nagar State v. Asif Mohd Khan (Ex MLA) & Ors. 6 of 52 witness PW9 Sh. Avinsh Dwivedi SHO of PS Jamia Nagar at the time of alleged incident/Eye witness PW10 ASI Mahesh Chand Police witness/Eye witness PW11 HC Ram Avtar Police witness/Eye witness PW12 Inspector Suhaib Ahmad Second IO of the case PW13 HC Sanjay Police witness/Eye witness PW14 Inspector Azam Khan Third IO of the case PW15 Inspector Jitender Singh Complainant/First IO of the case/Eye witness PW16 Sh. Sandeep Yadav Munshi at Malkhana of PS Jamia Nagar at the time of incident regarding issuance of arms, ammunition, body protector, helmet, tear gas shells etc. PW17 HC Sonu Sharma Police witness/Eye witness PW18 ACP Sanjay Kumar Witness regarding grant of Singh sanction u/s 195 of Cr.P.C.
PW19 Sh. Rakesh Kumar Doctor of AIIMS regarding MLC of Faizal Hashmi and Liyakat Ali PW20 Sh. Deepak Registered owner of car bearing registration no.
DL3CAZ0491 make Maruti Esteem PW21 HC Khushiram Witness to departure, arrival entries and transfer entry of SHO/Inspector of Avinash Dwivedi PW22 ASI Roopendra Singh Police witness/Eye FIR No. 79/10 PS Jamia Nagar State v. Asif Mohd Khan (Ex MLA) & Ors. 7 of 52 witness PW23 HC Shailender Regarding the entry of case properties in the malkhana PW24 Inspector Khalid Fourth IO of the case, who Hussain filed the final report u/s 173 of Cr.P.C./charge sheet.
7. Further, to prove its case, the prosecution has relied upon the following evidences/documents:
Srl. No. Description of Evidence Exhibits
1. Statement of Faizal Hashmi Ex. PW1/A recorded u/s 161 of Cr.P.C. on 16.03.2010
2. Complaint dated 15.03.2010 by Ex. PW3/A Javed Hashmi bearing DD no. 4B
3. Statement of Javed Hashmi Ex. PW3/B recorded u/s 161 of Cr.P.C. dated 16.03.2010
4. Statement of PSI Anand Prakash Ex. PW6/X1 dated 05.05.2010, recorded u/s 161 of Cr.P.C.
5. Photographs of vehicle bearing no. Ex. PW6/X2 DL3CY9243 (N & O)
6. Seizure memo of torn kurta of Asif Ex. PW8/A Mohd Khan
7. Seizure memo of Esteem car Ex. PW8/B bearing no. DL3CAZ0491
8. Seizure memo of Accent car bearing Ex. PW8/C no. DL3CY9243
9. Seizure memo of broken pots and Ex. PW8/D stones
10. Original tehrir Ex. PW15/A
11. Site plan Ex.PW15/B
12. Complaint of Asif Mohd Khan Ex.PW15/D1.
dated 15.03.2010 bearing DD no.
5B FIR No. 79/10 PS Jamia Nagar State v. Asif Mohd Khan (Ex MLA) & Ors. 8 of 52
13. Sanction u/s 195 of Cr.P.C. Ex. PW18/A
14. MLC no. 201519 of Faizal Hashmi Ex.PW19/A dated 15.03.2010
15. MLC no. 20-1515 of Liyakat Ali Ex.PW19/B dated 15.03.2010
16. Authority letter of doctor bearing Ex. PW19/C no. F.17/MRS/TC/(S.No. 8821/SR) 17 Certified copy of MLC of Faizal Ex. PW19/D Hashmi
18. Certified copy of MLC of Liyakat Ex. PW19/E Ali
19. Superdarinama of car Esteem Ex. PW20/A bearing no. DL3CAZ0491 alongwith order dated 08.04.2010
20. DD entry no. 29A (roznamcha) Ex. PW21/A dated 14.03.2010 regarding departure of SHO Avinash Chand Dwivedi by the order of DCP-1/South East
21. Arrival entry DD no. 3, Sarita Ex. PW21/B Vihar, District Line (roznamcha) of Inspector Avinash Dwivedi dated 15.03.2010
22. Transfer entry of Avinash Dwivedi Ex. PW21/C from PS Jamia Nagar (OSR)
23. Malkhana entry of case properties Ex. PW23/A vide no. 463 (OSR)
24. Superdarinama of car bearing no. Ex. A1 DL3CY9243
25. Copy of order dated 21.05.2010 of Ex. A2 release of vehicle bearing no.
DL3CY9243
26. Copy of FIR no. 79/10 PS Jamia Ex. Z1 Nagar u/s 147/148/149/186/353/332/427 of IPC and Section 3 of PDPP Act alongwith certificate u/s 65B of the Indian Evidence Act
27. Medico Legal Report of SI Prakash Ex. Z2 Chand bearing OPD no. 40005357 dated 15.03.2010 FIR No. 79/10 PS Jamia Nagar State v. Asif Mohd Khan (Ex MLA) & Ors. 9 of 52
28. Medico Legal Report of ASI Om Ex. Z3 Prakash bearing OPD no.
400005356 dated 15.03.2010
29. Photograph of car bearing no. Ex. X1 to X4 DL3CAZ0491 (colly.) (A to D)
30. Photographs of broken potted plants Ex. X5 to X9 (E to H)
31. Photocopy of RC of Deepak Kumar Mark 20A
32. Statement of Ct. Sanjay i.e. PW13 Mark X u/s 161 of Cr.P.C.
8. Before proceeding further, this court deems it appropriate to discuss the role as well as crux and essence of the testimonies of the prosecution witness.
8.1 PW-1 Sh. Faizal Hashmi, S/o Parvez Hashmi (the then MP) deposed that Asif Mohd Khan is the maternal uncle of his wife and some arguments took place between him and Asif Mohd Khan at his in-laws residence on the day of incident, however, Asif Mohd Khan never slapped him. He further deposed that he did not give any statement to the police and does not know anything about the case. He correctly identified accused Asif Mohd Khan. PW1 did not support the case of the prosecution. The nitty gritty of which shall be discussed while appreciating the evidence hereinafter.
9. PW-2 Farhan Hashmi, who is brother of Faizal Hashmi and son of Parvez Hashmi deposed that on 14.03.2009 or 2010 (he does not remember the exact year), he got a call from SHO FIR No. 79/10 PS Jamia Nagar State v. Asif Mohd Khan (Ex MLA) & Ors. 10 of 52 Avinesh Diwedi regarding mishap in the police chowki and asked him to come to the police station. He reached at around 11:45 PM and saw that there was no crowd and some people were registering their complaints regarding the present case or some other case.
9.1 He further deposed that no untoward incident happened with him or with any of his relatives. He did not give any statement to the police or was never called to the PS for purpose of investigation. He identified only accused Asif Mohd Khan as he is a two times MLA of the year but did not support the case of the prosecution.
10. PW-3 Javed Hashmi, who is brother of Parvez Hashmi deposed that on the day of incident he was informed by his nephew Farhan Hashmi that he received a call from SHO as his younger brother Faizal Hashmi had been involved in some scuffle. Thereafter, he alongwith his brother Parvez Hashmi went to the police station Jamia Nagar at around 11:00 PM and saw that a large crowd was gathered there. They parked their vehicle outside the SHO room and SHO called Asif Mohd Khan inside the room alongwith 8-10 supporters who were saying "maro sale ko".
10.1 He further deposed that there was no interaction with Asif Mohd Khan or his supporters with him, his brother or his nephew. They did not received any injuries at the hands of FIR No. 79/10 PS Jamia Nagar State v. Asif Mohd Khan (Ex MLA) & Ors. 11 of 52 Asif Mohd Khan or his supporters. He did not know what happened between the supporters and the police. He sat for an hour at the police station and left the PS with his brother and nephew.
10.2 He further deposed that on the next day SHO came to his house and took signatures on a complaint which is Ex. PW3/A, however, he deposed that the complaint is not in his handwriting. PW3 identified the accused Asif Mohd Khan but also did not support the case of the prosecution.
11. PW-4 ASI Om Prakash deposed that on 14.03.2010, at around 10:30 PM, he was present in the PS and Asif Mohd Khan alongwith his 150-200 supporters came to the PS and some of them were carrying dandas and lathis. Some of them were inside and some were standing outside the PS, however, all of them were creating ruckus and raising slogans against Parvez Hashmi and asking the police to lodge FIR against Parvez Hashmi and to arrest him. Thereafter, SHO/Inspector Dwivedi took Asif Mohd Khan and his 4-5 supporters inside his office and also tried to pacify the mob and in the meantime, former MP Parvez Hashmi alongwith his son Farhan and 2-3 other persons came out from the Esteem car bearing registration no. DL-3CAZ-0491 and went inside the SHO room and on seeing them supporters of Asif Mohd Khan got angry and started abusing. Thereafter, Asif Mohd Khan FIR No. 79/10 PS Jamia Nagar State v. Asif Mohd Khan (Ex MLA) & Ors. 12 of 52 alongwith his supporters came out of the SHO office, telling the SHO "Parvesh Hashmi and uske larke ko bahar nikalo'". 11.1 He further deposed that Asif Mohd Khan alongwith his supporters again went to the SHO room and broke the door of the SHO office and the angry mob started throwing potted plants towards the car of Parvez Hashmi. Thereafter, he alongwith other police officials tried to push the unruly mob out of the police station, however, they were outnumbered and the crowd started pelting stones towards the police, due to which he sustained injury on his forehead and HC Prakash Chand injured his shoulder. Thereafter, SHO used loud hailer to warn the crowd and upon the instruction of the SHO, police officials used tear gas to pacify the mob, but in vain. To control the crowd, they called for extra force which came after 45 minutes. He further deposed that Asif Mohd Khan alongwith some of his supporters apprehended from the spot. 11.2 He further deposed that he alongwith HC Prakash and some of the police personnel went to the Holy Family Hospital for their medical examination and MLC was prepared. Thereafter, IO recorded his statement u/s 161 Cr.P.C. on the same day. He correctly identified accused Asif Mohd Khan, Wahab, Siraj, Nawab Ahmad and Aqeel Ahmad. PW4 correctly identified the car bearing registration no. DL- 3CA-Z0491 as Ex. X-1 to Ex. X-4 and photographs of broken door, pot and broken car back seat Ex. X-5 to X-9. FIR No. 79/10 PS Jamia Nagar State v. Asif Mohd Khan (Ex MLA) & Ors. 13 of 52
12. PW-5 Retired SI Prakash Chandra almost deposed on the same lines regarding the incident as PW4 ASI Om Prakash. 12.1 He further deposed that when SHO tried to pacify accused Asif Mohd Khan and Parvez Hashmi, Asif Mohd Khan came out of the SHO room angrily and broke the door of the SHO office and he went to his crowd and said "Maaro" after which the crowd outside got agitated and started pelting stones. In order to control the crowd, he alongwith other police officials fired the tear gas towards the crowd. 12.2 He further deposed that one of the stones hit him on his right hand and SHO called police force to tackle the crowd which came after 20-25 minutes. Thereafter, both he and Ct. Om Prakash were taken to the hospital. PW5 correctly identified accused Asif Mohd Khan by name. The witness identified the accused Wahab by face and said his name as Wahid during his deposition. PW5 correctly identified the photographs of broken door, silver car bearing registration no. DL-3CA-Z0491 and broken potted plant Ex. X-1 to Ex. X-4 and Ex. X-5 to X-9.
13. PW-6 Inspector Anand Prakash almost deposed on the same lines regarding the said incident as PW4 ASI Om Prakash and PW5 Retired SI Prakash Chandra. He only identified accused Asif Mohd Khan. He further Ex. PW6/X1 and Ex. PW6/X2 (colly).
FIR No. 79/10 PS Jamia Nagar State v. Asif Mohd Khan (Ex MLA) & Ors. 14 of 52
14. PW-7 Retired ASI Ram Niwas deposed almost on the same lines regarding the said incident as PW4 ASI Om Prakash and PW5 Retired SI Prakash Chandra and PW6 Inspector Anand Prakash. The witness correctly identified accused Asif Mohd Khan by name and also identify the other two accused persons one in green tshirt and one in white tshirt, however, the witness submitted that he did not know their names, person in the green tshirt was Wahab and person in white shirt was Mukaram Agha @ Mickey. The witness submitted that he cannot identify the remaining accused persons due to lapse of time.
15. PW-8 ASI Rambir deposed almost on the same lines regarding the said incident as PW4 ASI Om Prakash and PW5 Retired SI Prakash Chandra, PW6 Inspector Anand Prakash and PW7 Retired ASI Ram Niwas. He further deposed that the FIR got registered in the DO room after which Asif Mohd Khan gave his torn kurta to the IO which was seized by the IO vide seizure memo, the same is Ex. PW8/A and the IO seized the vehicle of MP Parvez Hashmi in his presence vide seizure memo proved as Ex. PW8/B. Thereafter, IO also seized the vehicle of Asif Mohd Khan vide seizure memo and the same is Ex. PW8/C and also seized broken pots and stones and the same is Ex. PW8/D and record his statement u/s 161 Cr.P.C. PW8 correctly identified the photographs of broken door, FIR No. 79/10 PS Jamia Nagar State v. Asif Mohd Khan (Ex MLA) & Ors. 15 of 52 silver car bearing registration no. DL-3CA-Z0491 and broken potted plant Ex. X-1 to Ex. X-4 and Ex. X-5 to X-9. PW8 correctly identified accused Asif Mohd Khan, and Wahab by their names and identified accused Siraj, Nawab and Javed by their faces. PW8 correctly identified the case property Ex. P1 and white torn kurta of Asif Mohd Khan and the same is Ex. P2.
16. PW-9 Retired ACP Avinsh Dwivedi deposed almost on the same lines regarding the alleged incident as PW4 ASI Om Prakash and PW5 Retired SI Prakash Chandra, PW6 Inspector Anand Prakash, PW7 Retired ASI Ram Niwas and PW8 PW8 ASI Rambir. PW9 correctly identified the photographs of broken door, silver car bearing registration no. DL-3CA- Z0491 and broken potted plant Ex. X-1 to Ex. X-4 and Ex. X- 5 to X-9. PW9 correctly identified accused Asif Mohd Khan and Wahab.
17. PW-10 ASI Mahesh Chand deposed almost on the same lines regarding the alleged incident as PW6 Inspector Anand Prakash and PW7 Retired ASI Ram Niwas. PW10 correctly identified accused Asif Mohd Khan and Wahab.
18. PW-11 HC Ram Avtar deposed almost on the same lines regarding the alleged incident as PW6 Inspector Anand FIR No. 79/10 PS Jamia Nagar State v. Asif Mohd Khan (Ex MLA) & Ors. 16 of 52 Prakash and PW7 Retired ASI Ram Niwas and PW10 ASI Mahesh Chand. PW11 correctly identified accused Asif Mohd Khan and Wahab.
19. PW-12 Inspector Suhaib Ahmad deposed that on 01.03.2016, he was posted as Inspector at PS Jamia Nagar and on that day, he received the present case file from MHC(R) for further action to be taken in the present case. He further deposed that he was transferred from the PS Jamia Nagar to PS CR Park during the proceedings and present case file was submitted to MHC (R).
20. PW-13 HC Sanjay almost deposed on the same lines regarding the alleged incident as deposed by PW4 to PW11. PW13 correctly identified accused Asif Mohd Khan and Wahab. He further deposed that SI Jitender recorded his statement which is proved as Mark X.
21. PW-14 Inspector Azam Khan deposed that he got posted as additional SHO, PS Jamia Nagar in the year 2018 and the present file was assigned to him for investigation and during investigation, he has searched for the accused persons but they were not traceable and later he got transferred and file was handed over to MHC(R).
FIR No. 79/10 PS Jamia Nagar State v. Asif Mohd Khan (Ex MLA) & Ors. 17 of 52
22. PW-15 Inspector Jitender Singh deposed almost on the same lines regarding the alleged incident as PW4 to PW11 and PW13. Thereafter, PW15 prepared the Tehrir and gave the same to the DO for registration of FIR and proved the same is Ex. PW15/A. He further deposed that he had seized torn kurta of Asif Mohd Khan which was torn in an earlier quarrel, which is Ex. PW8/A. Thereafter, he prepared the site plan which is Ex. PW15/B. 22.1 He further deposed that HC Rambir had handed over him the copy of FIR and original Tehrir and informed him that son of MP namely Faizal Hashmi had gone to Trauma Centre with Ct. Rupender and for that he left the spot to reach at Trauma Centre to collect the MLC of Faizal Hashmi, however, Faizal Hashmi did not give his statement as he was in pain and then he came to the PS and seized the Esteem car which is Ex. PW8/B. He correctly identified the photographs of the spot which he had taken as Ex. X1 to X4 (colly.) and Ex. PW6/X2 and Ex. X5to X9. He also deposed that the car of Asif Mohd Khan was also got damaged and seized and the broken planters, stones were also seized which were thrown by the supporters. Thereafter, he collected the MLCs of HC Prakash Chand and Ct. Om Prakash and recorded their statements and deposited the case property at malkhana and recorded statement of HC Rambir.
FIR No. 79/10 PS Jamia Nagar State v. Asif Mohd Khan (Ex MLA) & Ors. 18 of 52 22.2 PW15 correctly identified accused Asif Mohd Khan and Wahab. PW15 correctly identify the broken pieces of planter and broken stones is Ex. P1 and white colour torn kurta is Ex. P2.
23. PW-16 Sandeep Yadav deposed that on 14.03.2010, at about 10:30 PM, there were loud noises and rush of people and staff of police station came in the malkhana for issuing the weapons and other accessories to counter the riot situation for that he issued body protector, helmet, tear gas shells and pistol and revolvers alongwith ammunition to the staff and had made the entry of the same. Thereafter, late night, staff came to submit the issued items and HC Prakash Chand submitted four empty tear gas shells for that he made the entries.
24. PW-17 HC Sonu Sharma deposed on the same lines as PW4 to PW11, PW13 and PW15. He further deposed that FIR was lodged regarding the incident and persons namely Asif Mohd Khan alongwith Wahab, Siraj, Aslam, Mumtaz, driver of MLA Asif Mohd Khan i.e. Mickey, Saleem Malik and Hazi Mohd Ali are involved in the incident. PW-17 correctly identify the accused Asif Mohd Khan and Wahab.
25. PW-18 ACP Sanjay Kumar Singh deposed that he accorded FIR No. 79/10 PS Jamia Nagar State v. Asif Mohd Khan (Ex MLA) & Ors. 19 of 52 sanction u/s 195 Cr.P.C. after seeing the case file and evidences/documents on record and issued the sanction on 28.05.2022 which is Ex. PW18/A.
26. PW-19 Sh. Rakesh Kumar, MRT in Trauma Centre, AIIMS brought the documents i.e. MLC no. 20-1519 and 20-1515 which was prepared by Dr. Bhuvnesh in the year 2010 and proved as Ex. PW19/A and PW19/B, respectively and also placed on record certified copy of MLCs on which IO had made the receiving and is Ex. PW19/D and Ex.PW19/E.
27. PW-20 Sh. Deepak deposed that he is the registered owner of car bearing registration no. DL3CAZ0491 make Maruti Esteem and gifted the same to his sister on 30.04.2007 and since then it was in her possession and as on date the said car has been stolen which was released on superdari on 08.04.2010 and is Ex. PW20/A and photocopy of RC as Mark 20A.
28. PW-21 HC Khushi Ram brought copy of DD entry no. 29A (roznamcha) at about 11:55 PM of departure of the then SHO/Avinash Chandra Dwivedi and proved as Ex. PW21/A and arrival entry (DD no. 3, Sarita Vihar District, Line Roznamcha) of the then Inspector Avinash Dwivedi at police lines DCP, South East on 15.03.2010 at about 08:40 AM is FIR No. 79/10 PS Jamia Nagar State v. Asif Mohd Khan (Ex MLA) & Ors. 20 of 52 Ex. PW21/B and copy of entry of DCP office regarding the transfer of the then SHO/Inspector Avinash Dwivedi as Ex. PW21/C (OSR) at serial no. 5.
29. PW-22 ASI Roopendra Singh deposed almost on the same lines regarding the alleged incident as deposed by other police witnsses. PW22 identified accused Asif Mohd Khan, Siraj and Wahab.
30. PW-23 HC Shailender deposed that he was posted at PS Jamia Nagar as MHC(M) and he brought the Register no. 19 of the malkhana regarding entry of the case property. The case property was submitted by SI Jitender on 15.03.2010 vide entry no. 463 and the same is proved as Ex. PW23/A.
31. PW-24 Inspector Khalid Hussain deposed that on 25.06.2020, the present file was marked to him by SHO concerned for further course of action. Thereafter, he perused the file and statements of the witnesses were scrutinized by him and found out from the case file regarding the accused persons and served notice u/s 41A to them for joining the investigation. He did not serve any notice to accused Asif Mohd Khan and charge sheeted him without arrest and firstly served the notice u/s 41A to Wahab and recorded the statement of witness Faizal u/s 161 Cr.P.C. in the month of FIR No. 79/10 PS Jamia Nagar State v. Asif Mohd Khan (Ex MLA) & Ors. 21 of 52 April, 2021 and searched for witness Ali Liyakat but did not trace him and got sanction u/s 195 Cr.P.C. from the ACP concerned. Thereafter, he completed the investigation in all aspects and prepared the charge sheet and file the same before the court. He correctly identified accused Asif Mohd Khan, Aqeel Ahmed, Javed and Wahab.
32. Thereafter, PE was closed on 23.04.2024 and the matter got listed for recording of statement of accused persons u/s 313 of Cr.P.C.
Examination of accused persons u/s 313 of the Code of Criminal Procedure, 1973:
33. As mandated u/s 313 of Cr.P.C., the accused persons were given due opportunity to personally explain the circumstances appearing against them in evidence in the matter at hand. All the incriminating facts, circumstances and evidences were put to them as appeared in the testimonies of prosecution witnesses and the corresponding documents.
34. The accused Asif Mohd Khan in his statement u/s 313 of Cr.P.C. interalia stated that he alongwith Wahab and his driver Mickey went to the police station Jamia Nagar to lodge complaint against son of MP Parvez Hashmi namely Faizal Hashmi who had manhandled him and torn his clothes in at FIR No. 79/10 PS Jamia Nagar State v. Asif Mohd Khan (Ex MLA) & Ors. 22 of 52 around 09:30 PM. He had given a written complaint in this regard to the police station, except Wahab and Mickey, no other person was with him and nobody was carrying lathi or danda.
34.1 He further stated that SHO asked them to sit inside his office and also took their complaint. The SHO also called Parvez Hashmi in front of him. After about 20-25 minutes, Parvez Hashmi alongwith his brother and son namely Farhan reached the police station. None of them had damaged any public property. There was no unlawful assembly as he alongwith Wahab and his driver Mickey had only gone to the police station. No such incident as mentioned in the FIR had happened. SHO pacified him and MP Parvez Hashmi and his supporters and sent them back to come next day after thinking over whether to get register FIR against each other or not. He alongwith Wahab and Mickey left the police station and Parvez Hashmi and his supporters had left afterwards. 34.2 He further stated that on the next day, he came to know that an FIR has been registered against him and other accused persons whereas no action has been taken on his complaint. The brother of Parvez Hashmi had given a complaint which was registered and assigned a DD no. 4B prior to his complaint, DD no. 5B despite the fact that he had given his complaint prior to even reaching of Parvez Hashmi. He has been falsely implicated in the present case alongwith other FIR No. 79/10 PS Jamia Nagar State v. Asif Mohd Khan (Ex MLA) & Ors. 23 of 52 accused persons.
35. Accused Aqeel Ahmed, Javed Nisar Khan, Nawab Ahmed and Siraj in their statement recorded u/s 313 of Cr.P.C. interalia stated that in the beginning of year 2021, SI Khalid contacted them and asked as to whether they were present at the time of incident. They told him that they were not present at the time of incident. They were called at the PS and enquired regarding the incident, when they told that they do not know anything about the incident, SI Khalid asked to write everything in writing. They gave in writing that they do not know anything about the incident and were not present at the time of incident, however, after some time, when they received summons from the court, they got to know that they have been falsely implicated in the present case.
36. Accused Mukaram Agha @ Mikki and Wahab in their statement recorded u/s 313 of Cr.P.C. interalia stated that they alongwith Asif Mohd Khan went to the police station Jamia Nagar to lodge complaint against son of MP Parvez Hashmi namely Faizal Hashmi who had manhandled Asif Mohd Khan and torn his clothes in at around 09:30 PM. Asif Mohd Khan had given a written complaint in this regard to the police station, except them and Asif Mohd Khan, no other person was with them and nobody was carrying lathi or danda. SHO FIR No. 79/10 PS Jamia Nagar State v. Asif Mohd Khan (Ex MLA) & Ors. 24 of 52 asked them to sit inside his office and also took their complaint.
36.1 They further stated that the SHO also called Parvez Hashmi in front of them and after about 20-25 minutes, Parvez Hashmi alongwith his brother and son namely Farhan reached the police station. None of them had damaged any public property. There was no unlawful assembly as they alongwith Asif Mohd Khan had only gone to the police station.
Defence Evidence Led By The Accused Persons:
37. Accused persons examined 01 witness in their defence i.e. DW1/Asif Mohd Khan.
37.1 Accused/DW-1 Asif Mohd Khan stepped into the witness box and deposed that on 14.03.2010 at about 09:00- 09:30 PM, he was going to his house at Zakir Nagar and at about 300 mts away from his house at Jogabai Chopal, he was attacked by Faizal Hashmi and Farhan Hashmi alongwith 8- 10 other persons who were not familiar to him. He further deposed that Faizal Hashmi and Farhan Hashmi attacked his car with dandas while he was sitting inside the car and when he got down from the car, Faizal Hashmi fired with a country made pistol pointing towards him, however, he was not injured as the bullet did not hit him. Thereafter, Faizal Hashmi and Farhan Hashmi got hold of him and tore his FIR No. 79/10 PS Jamia Nagar State v. Asif Mohd Khan (Ex MLA) & Ors. 25 of 52 clothes.
37.2 He further deposed that after the aforesaid incident, he went to the PS Jamia Nagar alongwith his driver Mickey. As he was the sitting MLA from Okhala constituency at that time, SHO concerned Sh. Avinash Dwivedi recognized him and asked to sit in his room. SHO thereafter, asked him to give his complaint in writing which is Ex. PW15/D1. He also gave his torn clothes which was seized and the same is Ex. P2.
37.3 He further stated that he sustained minor injuries over his neck. Thereafter, SHO called someone to either send Faizal Hashmi or else police will come to take him. After about 20- 25 minutes, Parvez Hashmi (the then MP), Javed Hashmi (brother of Parvez Hashmi) and Farhan Hashmi (son of Parvez Hashmi) came to the PS alongwith 8-10 other persons and entered into the SHO's room. They were angry with the SHO and used abusive languge with SHO and said to SHO "tu mere ghar pe police leke aayega, tu mujhe janta nahi hai, teri aukaat kya hain jo mere bete ko arrest karega ". SHO tried to pacify them but they did not pay any heed to the advice of the SHO and asked the SHO to lodge a complaint against him as he has beaten Faizal Hashmi and also to arrest him. SHO then came outside the room with him and told him to go home and assured him that he will pacify Parvez Hashmi and his brother and asked to come next day.
FIR No. 79/10 PS Jamia Nagar State v. Asif Mohd Khan (Ex MLA) & Ors. 26 of 52 37.4 He further deposed that no incident as mentioned in the FIR took place in his presence and he alongwith his driver Mickey and Wahab (who joined later them in the police station) came back to his house. He got to know that SHO Avinash Dwivedi got linehazir and some other SHO joined the duties as SHO. Thereafter, considering it was political issue, no action was taken upon their complaint, however, after about 10-12 years, he received summons from the court, even though he was never contacted for joining any investigation by the police during the investigation. He further deposed that after receiving the summons of the present matter from the court, he came to know that the police did not register any FIR on his complaint rather an FIR was registered against him by police officers. 37.5 Thereafter, DE was closed on 10.07.2024 and the matter was listed for final arguments.
Final Arguments:
38. Final arguments were advanced by Ld. APP for the State and Ld. Defence Counsel. The final arguments were heard at length on behalf of both the parties. Further, Ld. Counsel for the accused persons also placed on record the written submissions on behalf of the accused persons.
FIR No. 79/10 PS Jamia Nagar State v. Asif Mohd Khan (Ex MLA) & Ors. 27 of 52 Arguments by Ld. APP for State:
39. The Ld. APP for the State has argued that prosecution witnesses have supported the case of the prosecution and the testimonies of prosecution witnesses are consistent and corroborate with the documentary evidence placed on record by the prosecution. It is also argued that the police officials have also identified some of the accused persons in their testimony during trial and so the prosecution has been able to prove the guilt of the accused persons beyond doubt. It is, thus, prayed that all accused persons be convicted for commission of offences u/s 147/148/186/353/332/427 IPC and Section 3 of PDPP Act.
Arguments by Ld. Defence Counsel:
40. Per contra, Ld. Counsel for the accused persons has argued that there is no legally sustainable evidence against the accused persons and the accused persons have been falsely implicated by the police officials. It was further argued by the Ld. Counsel that there is no cogent evidence relied upon by the prosecution which satisfies and proves the ingredients of offences u/s 147/148/186/353/332/427 IPC and Section 3 of PDPP Act against accused persons and proves the happening of any such incident and presence of accused persons at the alleged place of incident beyond reasonable doubt. It was FIR No. 79/10 PS Jamia Nagar State v. Asif Mohd Khan (Ex MLA) & Ors. 28 of 52 further argued that due to the lacuna and incoherency in the story of the prosecution, accused persons be given the benefit of doubt as the prosecution could not prove the case beyond reasonable doubt and therefore, the accused persons are entitled to be acquitted in the present case.
Legal Provisions:
41. Before commencing the discussion on the facts of the case and appreciation of evidence, it is necessary to briefly make note of the relevant penal provisions attracted in the present case, which are as under:
Section 186 of the Indian Penal Code, 1860 is reproduced as under:
"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 which may extend to five hundred rupees, or with both."
42. Also, Section 146 of the Indian Penal Code, 1860 is reproduced as under:
"146. Rioting.--
Whenever force or violence is used by an unlawful assembly, 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."
43. Also, Section 147 of the Indian Penal Code, 1860 is reproduced as under:
FIR No. 79/10 PS Jamia Nagar State v. Asif Mohd Khan (Ex MLA) & Ors. 29 of 52 "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."
44. Also, Section 148 of the Indian Penal Code, 1860 is reproduced as under:
"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."
45. Also, Section 332 of Indian Penal Code, is reproduced as under:
"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, or 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."
46. Also, Section 353 in The Indian Penal Code, 1860 is reproduced as under:
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 FIR No. 79/10 PS Jamia Nagar State v. Asif Mohd Khan (Ex MLA) & Ors. 30 of 52 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."
47. Also, Section 427 of Indian Penal Code, 1860 is reproduced as under:
"427. Mischief causing damage to the amount of fifty rupees.--
Whoever commits mischief and thereby causes loss or damage to the amount of fifty rupees or upwards, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both."
48. Also, Section 3 of Prevention of Damage to Public Property Act, 1984 is reproduced as under:
"3. Mischief causing damage to public property (1)Whoever commits mischief by doing any act in respect of any public property, other than public property of the nature referred to in sub-section (2), shall be punished with imprisonment for a term which may extend to five years and with fine. (2)Whoever commits mischief by doing any act in respect of any public property being
(a)any building, installation or other property used in connection with the production, distribution or supply of water, light, power or energy;
(b)any oil installations;
(c)any sewage works;
(d)any mine or factory;
(e)any means of public transportation or of tele-
communications, or any building, installation or other property used in connection therewith, shall be punished with rigorous imprisonment for a term which shall not be less than six months, but which may extend to five years and with fine:Provided that the Court may, for reasons to be recorded in its judgment, award a sentence of imprisonment for a term of less than six months."
FIR No. 79/10 PS Jamia Nagar State v. Asif Mohd Khan (Ex MLA) & Ors. 31 of 52 Appreciation of Evidence and Findings:
49. Having considered the rival submissions and after wholesome perusal of the record and appreciating the evidence on record, this court is of the view that the prosecution is unable to bring home the guilt of the accused persons u/s 147/148/186/353/332/427 IPC and Section 3 of PDPP Act. It is trite law that the burden always lies upon the prosecution to prove its case beyond reasonable doubt on the basis of acceptable evidence and that the law does not permit the court to punish the accused on the basis of moral conviction or on account of suspicion alone. Also, it is well settled that accused is entitled to the benefit of every reasonable doubt in the prosecution story and such doubt entitles him to acquittal. However, careful scrutiny of evidence placed on record brings to light the fact that the case of the prosecution is fraught with multiple inconsistencies and lack of evidence, rendering the prosecution version unreliable, and the same are discussed hereinafter.
(i) Identity and presence of accused persons 1not established
50. To establish the identity of the accused involved in commission of a criminal offence is the most crucial aspect of the investigation. It was incumbent upon the prosecution to prove that all the accused persons charge sheeted in the present case 1 Siraj, Aqeel Ahmed, Javed Nisar Khan and Nawab Ahmed FIR No. 79/10 PS Jamia Nagar State v. Asif Mohd Khan (Ex MLA) & Ors. 32 of 52 were present in the police station Jamia Nagar on 14.03.2010 at around 10:45 PM. Thus, to prove their presence at the place of alleged incident and also to establish their identity in order to prove the commission of the offence is a sine qua non to bring home the guilt of the accused persons, in the commission of offences alleged by the prosecution. 50.1 In the instant case, the Tehrir, Ex. PW15/A and copy of FIR Ex. Z1 does not mention the name of any accused person except accused Asif Mohd Khan. The other accused persons have been roped in, in the instant case on the basis of statement of PW1/Faizal Hashmi who in his statement recorded u/s 161 Cr.PC. on 10.04.2021 named accused Wahab, Nawab, Siraj, Aqeel Ahmed and Javed other than Asif Mohd Khan as the perpetrators of the crime. Even PW24, IO/Inspector Khalid Hussain during his cross examination admitted and stated"it is correct that the accused persons named by Faizal Hashmi in his statement recorded u/s 161 Cr.PC. dated 10.04.2021 were charge sheeted in the present case". He further stated that only for the purpose of identity the statement of Faizal Hashmi recorded on 10.04.2021 u/s 161 Cr.P.C. was the basis for charge sheeting the other accused persons.
50.2 However, it is also pertinent to note that the statement recorded on 10.04.2021 u/s 161 of Cr.P.C. of witness Faizal Hashmi on which the prosecution is heavily relying to prove FIR No. 79/10 PS Jamia Nagar State v. Asif Mohd Khan (Ex MLA) & Ors. 33 of 52 identity and presence of accused persons at the spot cannot be relied upon, in light of the fact that the said prosecution witness did not support the case of the prosecution at all during his examination in the court.
50.3 PW1/Faizal Hashmi categorically stated in his examination in chief that he never gave any statement to the police and he does not know anything about the present case. The witness was even shown his statement u/s 161 of Cr.P.C. dated 16.03.2010, Ex. PW1/A, however, after seeing the same, the witness submitted that the contents of the same are not true and he never told the IO or any other police officials anything as it is stated in the statement. The witness also could not identify any other accused person except Asif Mohd Khan and testified that he did not give name of any accused to the police. Since PW1 turned hostile, he was cross examined by Ld. APP for the State, however, prosecution could not shake his testimony.
50.4 Moreover, none of the police witnesses have deposed that Faizal Hashmi also accompanied his father Parvez Hashmi or was present at the police station on the alleged date of incident. Thus, it is not possible for a witness who is not proved to be present at the place of incident and has not proved to have witnessed the alleged incident to tell the names of the accused persons who were allegedly present during the alleged commission of the offence. FIR No. 79/10 PS Jamia Nagar State v. Asif Mohd Khan (Ex MLA) & Ors. 34 of 52 50.5 Furthermore, it is also a matter of record that the FIR in the present matter was registered on 15.03.2010 and the charge sheet in the present case was filed on 07.06.2022 i.e. after more than 12 years from the date of registration of FIR. It is deposed by PW24/Inspector Khalid Hussain that he served the notice u/s 41 (a) of Cr.P.C. dated 18.03.2021 to accused Wahab and also recorded the statement of witness Faizal Hashmi u/s 161 of Cr.P.C. on 10.04.2021. It is clear from the testimony of PW24/Inspector Khalid Hussain that from the date of incident in the year 2010 till the year 2021, the identity of the accused persons as well as their presence at the spot was not clear. It is only in the year 2021 that the IO woke up from deep slumber and initiated investigation to collect the evidence regarding the identity and presence of accused persons on the alleged place of incident. Even majority of the police witnesses could not identify accused persons, other than Asif Mohd Khan and Wahab. Thus, in view of the reasons stated above, it is clear that there is not even an iota of cogent evidence brought on record by the prosecution which can prove the presence and establish the identity of accused Siraj, Aqeel Ahmed, Javed Nisar Khan and Nawab Ahmed at the spot on the date of alleged incident. 50.6 Thus, in view of the above, the prosecution has miserably failed to prove the presence of accused Siraj, Aqeel Ahmed, Javed Nisar Khan and Nawab Ahmed at PS Jamia FIR No. 79/10 PS Jamia Nagar State v. Asif Mohd Khan (Ex MLA) & Ors. 35 of 52 Nagar on 14.03.2010. Once the prosecution could not prove their presence and identities in commission of offence on the alleged date of incident, no case is made out against them u/s 147/148/186/353/332/427 IPC and Section 3 of PDPP Act. 50.7 Though, accused Asif Mohd Khan, Wahab and Mukaram Agha @ Mickey have admitted their presence at the police station Jamia Nagar on 14.03.2010, however, it is their defence that they had only gone to the police station to give a complaint against the son of Parvez Hashmi and to request the concerned SHO to register the FIR on their complaint. They have categorically denied happening of any untoward incident on the said date. Whether the prosecution is successful in connecting the accused Asif Mohd Khan, Wahab and Mukaram Agha @ Mickey with the commission of the offence u/s 186/147/148/332/353/427 and Section 3 of PDPP Act will be discussed hereinafter.
(ii) Unlawful assembly not proved
51. Section 141 of IPC defines an unlawful assembly to be an assembly of five or more persons, where the common object of the persons comprising that assembly is to commit any of the acts enumerated in the five clauses of that section. 51.1 A combining reading of Section 141 IPC with Section 146, 147 and 148 of IPC (supra) shows that an assembly of less than five members is not an unlawful assembly within the FIR No. 79/10 PS Jamia Nagar State v. Asif Mohd Khan (Ex MLA) & Ors. 36 of 52 meaning of Section 141 and cannot, therefore, form the basis for conviction for offences under Section 147 and 148 of IPC. The existence of an unlawful assembly is a necessary postulate for invoking Section 147 and 148 of IPC. Where the existence of such an unlawful assembly is not proved, the conviction under Section 147 and 148 of IPC cannot be recorded or sustained. The failure of the prosecution to show that the assembly was unlawful must necessarily reside in the failure of charge u/s 147 and 148 IPC.
51.2 In so far as the liability of accused with the aid of Section 147 and 148 of IPC is concerned, on the evidence on record, this court has great doubt as to whether the accused persons namely Asif Mohd Khan, Wahab and Mukaram Agha @ Mickey were members of the unlawful assembly as alleged by the prosecution. Constitution of unlawful assembly is a question of fact and the prosecution is required to prove constitution of unlawful assembly and its common object. Unlawful assembly may be constituted at any moment and person may join unlawful assembly at any time, even at the time of causing injury, but the prosecution is required to prove the aforesaid fact by adducing cogent and reliable evidence that the persons have formed the unlawful assembly or joined in unlawful assembly having its common object and was having its common object for commission of the aforesaid offence. Mere presence as a stranger, by passer or FIR No. 79/10 PS Jamia Nagar State v. Asif Mohd Khan (Ex MLA) & Ors. 37 of 52 gathered on the spot to see quarrel or the incident would not make the person liable for formation of unlawful assembly or liable for the commission of offence.
51.3 While dealing with the question of formation of unlawful assembly, the Apex Court in the matter of Masalti v. State of U.P.16,2 has held as under:-
"17. ...What has to be proved against a person who is alleged to be a member of an unlawful assembly is that he was one of the persons constituting the assembly and he entertained along with the other members of the assembly the common object as defined by Section 141 IPC. Section 142 provides that whoever, being aware of facts which render any assembly an unlawful assembly, intentionally joins that assembly, or continues in it, is said to be a member of an unlawful assembly. In other words, an assembly of five or more persons actuated by, and entertaining one or more of the common objects specified by the five clauses of Section 141, is an unlawful assembly. The crucial question to determine in such a case is whether the assembly consisted of five or more persons and whether the said persons entertained one or more of the common objects as specified by Section 141. While determining this question, it becomes relevant to consider whether the assembly consisted of some persons who were merely passive witnesses and had joined the assembly as a matter of idle curiosity without intending to entertain the common object of the assembly."
(emphasis supplied) 51.4 While dealing with same question, the Hon'ble Supreme Court of India in the matter of Sherey and others v. State of U.P.,3 has held as under:-
"4. ...But when there is a general allegation against a large number of persons the Court naturally hesitates to convict all of them on such vague evidence. Therefore we have to find some reasonable circumstance which lends 2 (1964) SCC OnLine SC 30 3 (1991) Supp (2) SCC 437 FIR No. 79/10 PS Jamia Nagar State v. Asif Mohd Khan (Ex MLA) & Ors. 38 of 52 assurance. From that point of view it is safe only to convict the abovementioned nine accused whose presence is not only consistently mentioned from the stage of FIR but also to whom overt acts are attributed..."
(emphasis supplied) 51.5 While dealing with same question, the Hon'ble Apex Court in the matter of Pandurang Chandrakant Mhatre v. State of Maharashtra,4 has held as under;
"72. it is well know that for determination of common object of the unlawful assembly, the conduct of each member of unlawful assembly before and at the time of attack is relevant consideration. At a particular stage of the incident, what is the object of unlawful assembly is a question of fact which has to be determined keeping in view nature of assembly, arms carried by members, and behavior of members at or near scene of incident. "
(emphasis supplied) 51.6 Further, the Hon'ble Apex Court in the matter of Chandra Bihari Gautam & Ors. v. State of Bihar ,5 has held as under;
"6. It has been argued alternatively that even if the occurrence is held to have taken place in the manner alleged by the prosecution and the accused persons were seen on spot, they cannot be convicted and sentenced as the prosecution allegedly failed to establish the existence of a common object amongst the accused persons. Section 149 is an exception to the criminal law whereunder a person can be convicted and sentenced for his vicarious liability only on proof of his being a member of the unlawful assembly, sharing the common object, notwithstanding as to whether he had actually participated in the commission of the crime or not. Common object does not require prior concert and a common meeting of minds before the attack. An unlawful object can develop after the accused 4 (2009) 10 SCC 773 5 (2002) 9 SCC 208 FIR No. 79/10 PS Jamia Nagar State v. Asif Mohd Khan (Ex MLA) & Ors. 39 of 52 assembled. The existence of the common object of the unlawful assembly has to be ascertained in the facts and circumstances of each case. It is true that the mere presence of the accused is not sufficient to hold them guilty for the sharing of common object as the prosecution has to further established that they were not mereby-standers but in fact were sharing the common object. When a concerted attack is made by a large number of persons, it is often difficult to determine the actual part played by each of the accused but on that account, for an offence committed by a member of the unlawful assembly in the prosecution of the common object or for an offence which was known to be likely to be committed in prosecution of the common object, persons provide to be members cannot escape the consequences arising from the doing of that act which amounts to an offence. There may not be a common object in a sudden fight but in a planned attack on the victim, the presence of the common object amongst the persons forming the unlawful assembly can be inferred."
(emphasis supplied) 51.7 Thus, mere presence of the accused persons to hand over their complaint against the son of MP Parvez Hashmi will not make the accused persons members of the unlawful assembly. Much less a common object to do a criminal act can be attributed to the accused persons.
51.8 From the prosecution case, it is clear that the genesis of the alleged incident was the enmity between two political functionaries i.e. Asif Mohd Khan (the then MLA) and Parvez Hashmi (the then MP). From total of 24 prosecution witnesses, 19 are police officials allegedly present at the time of incident. However, this court cannot lose sight of the fact that on 15.03.2010, the then SHO of PS Jamia Nagar namely Avinash Dwivedi was suddenly transferred (linehazir) and FIR No. 79/10 PS Jamia Nagar State v. Asif Mohd Khan (Ex MLA) & Ors. 40 of 52 was posted at Sarita Vihar which is proved vide Ex. PW21/C. Furthermore, PW15/First IO/Inspector Jitender Singh who was posted as SI at Jamia Nagar on 14.03.2010 has deposed the following:
"The alleged accused were not called for investigation in the matter till my transfer from the PS as SHO Satyaveer told me not to call any alleged accused person to join investigation until he directs."
He also deposed the following:
"I had not filed the charge sheet in the present matter for about 02 years during my posting at PS Jamia Nagar as the then SHO Satyaveer Singh asked me not to call and interrogate any of the alleged accused persons at that time. When I asked from the SHO why I should not call the alleged accused persons for the interrogation, he told me that he had directions from senior officers for the same. It is correct that SHO had not given me any written order in this regard".
51.9 Then, it is has been admitted by PW12/Second IO/Inspector Suhaib Ahmed that on 01.03.2016, he received the file of the present case for taking further action in the present case and also tried to establish the identity of the accused persons, however, during the said proceedings, he was transferred from PS Jamia Nagar to PS CR Park. Then, in the year 2018, PW14/Third IO/Inspector Azam Khan was posted as Add. SHO PS Jamia Nagar and during his investigation, he searched for the accused persons but they were not traceable. It is only in the year 2021 i.e. after 11 FIR No. 79/10 PS Jamia Nagar State v. Asif Mohd Khan (Ex MLA) & Ors. 41 of 52 years from the date of registration of FIR that the investigation regarding the presence and identities of the accused persons at the alleged place of incident was initiated by PW24/Fourth IO/Inspector Khalid Hussain and the charge sheet was filed in the present case.
51.10 Thus, it is apparent from the record as well as from the testimony of PW15/1st IO of the case/Inspector Jitender that there has been a deliberate delay in investigation in the present case. Under these circumstances, the testimony of police witnesses has to be examined with great caution and attention, to obviate possibility of false implication or over implication. In the case of Pandurang Chandrakant Mhatre v. State of Maharashtra, (supra) it was observed by the Hon'ble Apex Court as under:
"60. In cases involving rival political factions or group enmities, it is not unusual to rope in persons other than those who were actually involved. In such a case, court should guard against the danger of convicting innocent persons and scrutinse evidence carefully and, if doubt arises, benefit should be given to the accused."
(emphasis supplied) 51.11 Thus, the oral testimony of the police witnesses regarding presence of 150-200 people is not corroborated by any other cogent evidence, which can prove the presence of such huge crowd at the premises of the police station. Though, the prosecution has relied upon the photographs which shows damage to two cars i.e. car Esteem bearing no.
FIR No. 79/10 PS Jamia Nagar State v. Asif Mohd Khan (Ex MLA) & Ors. 42 of 52 DL3CAZ0491 and Accent car bearing no. DL3CY9243 as well as the broken door of SHO room of PS Jamia Nagar, stones and broken pots at the police station premises. However, the photographs placed on record by the prosecution does not bear any date. Be that as it may, even if it is believed that the photographs were taken on the same date of incident then what prevented the IO or any of the police officials present at the police station to take the photographs of the alleged mob of 150-200 people pelting stones or raising slogans, has not been explained by the prosecution. The prosecution has failed to bring on record any evidence such as CCTV footage, video or photographs which can prove the presence of 150-200 people at PS Jamia Nagar on the alleged date of incident. The infirmities in the investigation, inconsistencies in the overall testimonies of the police witnesses does not inspire the confidence of this court, to believe the presence of 150-200 people at the police station on the sole testimony of police witnesses without any evidence to corroborate the same.
51.12 This court has already opined in the forgoing paragraphs that the prosecution could not prove the presence of the accused persons namely Siraj, Nawab, Aqeel and Javed at PS Jamia Nagar on 14.03.2010. As discussed in the preceding paragraph, even presence of 150-200 people at police station Jamia Nagar on 14.03.2010 is also not proved FIR No. 79/10 PS Jamia Nagar State v. Asif Mohd Khan (Ex MLA) & Ors. 43 of 52 by the prosecution. The only admitted presence at the alleged place of incident is that of accused persons namely Asif Mohd Khan, Wahab and Mukaram Agha @ Mickey which comprises of only three persons. Thus, nowhere the prosecution could prove the presence of five or more persons, which is a condition requisite for proving the offence u/s 147/148 of IPC.
51.13 Ergo, due to lack of evidence, the formation of unlawful assembly at PS Jamia Nagar on 14.03.2010, remains doubtful and the prosecution has failed to prove the said fact beyond reasonable doubt. Thus, the prosecution has failed to prove the offences u/s 147/148 of IPC against accused Asif Mohd Khan, Wahab and Mukaram Agha @ Mickey.
(iii) Material witnesses turning hostile and non-examination of material witnesses
52. Another factor which has hit the backbone of the case set up by the prosecution is that the independent witnesses cited by the prosecution namely Farhan Hashmi, Faizal Hashmi and Javed Hashmi did not support the case of the prosecution and the aforesaid witnesses turned hostile. 52.1 The story of the prosecution revolves around the characters i.e. Asif Mohd Khan, Parvez Hashmi and sons of Parvez Hashmi namely Farhan Hashmi and Faizal Hashmi. The background of the story is specifically stated to be that FIR No. 79/10 PS Jamia Nagar State v. Asif Mohd Khan (Ex MLA) & Ors. 44 of 52 due to a quarrel between Faizal Hashmi and Asif Mohd Khan, the accused Asif Mohd Khan alongwith his 150-200 supporters went to PS Jamia Nagar and pressurized the police officials to register an FIR against the son of Parvez Hashmi. However, PW1, PW2 and PW3 negated the entire version of the prosecution. It has been deposed by PW1 Faizal Hashmi that he did not give any statement to the police u/s 161 of Cr.P.C. and does not know anything about the present case. 52.2 Similarly, even PW2 Farhan Hashmi deposed that when he reached at Chowki at 11:45 PM, he did not witness any crowd in the Chowki and only a few people were registering the complaints. He has also clarified that he does not know whether they were registering their complaints regarding the present case or some other case. He did not support the case of the prosecution by deposing that he did not see any accused persons in the Chowki on the day of incident and denied happening of any untoward incident with him or with any of his relative or person known to him on the date of alleged incident. He further deposed that his statement was not recorded by the IO during investigation and he was never called by the IO for the purpose of investigation. 52.3 Whereas PW3 Javed Hashmi also resiled from the case of the prosecution and stated that it is wrong to suggest that accused persons alongwith their supporters started pelting stones and pots at the car and damaged the vehicle bearing no. FIR No. 79/10 PS Jamia Nagar State v. Asif Mohd Khan (Ex MLA) & Ors. 45 of 52 DL3CAZ0491. He also testified that he did not see any danda and lathi in the hands of accused Asif Mohd Khan or his supporters and did not receive any injury from the hands of Asif Mohd Khan or his supporters.
52.4 Another factor which acted as a catalyst to the already collapsing case of the prosecution is that the prosecution did not cite or examine one of the main character of their story i.e. Parvez Hashmi who is the father of Faizal Hashmi and Farhan Hashmi and is the eye witness to the incident, for the reasons best known to the prosecution.
52.5 As the prosecution witnesses i.e. Farhan Hashmi, Faizal Hashmi and Javed Hashmi did not support the case of the prosecution as well as material witness namely Parvez Hashmi was not examined by the prosecution, it casts a severe dent on the case of the prosecution and the case of the prosecution falls flat on the ground.
(iv) Missing links and infirmities
53. Coming to the offences alleged against the accused persons namely Asif Mohd Khan, Wahab and Mukaram Agha @ Mickey u/s 186/353/332/427 of IPC and 3 of PDPP Act, the prosecution could not prove that the 02 police officials namely ASI Om Prakash and SI Prakash Chand sustained injuries due to the act of either Asif Mohd Khan, Wahab or Mukaram Agha @ Mickey. Both of them have deposed that FIR No. 79/10 PS Jamia Nagar State v. Asif Mohd Khan (Ex MLA) & Ors. 46 of 52 they sustained injuries due to pelting of stones by the alleged crowd present at the spot, however, there are mere vague allegations without attributing any specific role to any accused persons. The charge sheet and the testimony of the police officials is absolutely silent on the aspect as to who pelted stones and specifically due to the act of which accused, they sustained injuries. PW4/ASI Om Prakash deposed in his cross examination that accused Asif Mohd Khan who was in SHO room alongwith 2-3 other person was not in possession of any lathi, danda or any other weapon. Even PW5 did not specifically deposed that accused Asif Mohd Khan, Wahab and Mukaram Agha @ Mickey pelted stones on them due to which they sustained injuries. He only made vague statements that accused Asif Mohd Khan and Wahab were part of the crowd at the time of stone pelting. However, these vague assertions do not prove the guilt of the accused persons specially when presence of huge crowd at the spot is itself doubtful as discussed above.
53.1 Further, the prosecution has alleged mischief, causing damage to the car allegedly belonging to Parvez Hashmi bearing no. DL3CAZ0491 by the accused persons. The prosecution examined PW20, the registered owner of car bearing no. DL3CAZ0491 who deposed in his cross examination that he was not aware how the car was in possession of Mr. Parvez Hashmi. He categorically stated that FIR No. 79/10 PS Jamia Nagar State v. Asif Mohd Khan (Ex MLA) & Ors. 47 of 52 he did not authorize MP Parvez Hashmi to drive and use the said vehicle on 14.03.2010. It was, thus, imperative for the prosecution to examine Parvez Hashmi to prove damage to the car allegedly belonging to him, however, the prosecution neither cited him as a witness nor examined him during trial. Thus, the damage to the car allegedly belonging to Parvez Hashmi cannot be attributed to accused Asif Mohd Khan, Wahab and Mukaram Agha @ Mickey in absence of any evidence in this regard.
53.2 Moreover, there are several missing links and infirmities in the investigation which has weakened and damaged the case of the prosecution. There is no documentary evidence on record to show the issue and return of tear gas shells to the police officials which can corroborate happening of such incident as put forth by the prosecution. Even, no such danda and lathis allegedly carried by the supporters of Asif Mohd Khan has been recovered by the IO during the investigation. Another factor which has weakened the case of the prosecution is that the complainant SI Jitender was appointed as the IO in the present case. It has been held by the Hon'ble High Court of Delhi in case titled as Prerna Singh Vs. State, 6 as under:
"6. It is observed in State vs. Rajangam: (2010) 15 SCC 369 that the accused preferred an appeal before the High Court by stating that the officer who had registered the 6 (2019) SCC OnLine Del 11804 FIR No. 79/10 PS Jamia Nagar State v. Asif Mohd Khan (Ex MLA) & Ors. 48 of 52 crime, also investigated the said case. According to the submission advanced on behalf of the accused, the crime ought to have been investigated by another independent officer and not by P.W.6 (complainant). Accordingly, the High Court found substance in the submission and acquitted the accused.
7. In Laltu Prasad vs. State of West Bengal: 2017(2) R.C.R. (Criminal) 237 (Calcutta) (DB), held that the complainant himself acted as the investigating officer by violating the principles of fair and impartial investigation, but should not be resorted to and it is a disturbing feature.
8. Accordingly, keeping in view the facts of the present case and the settled position of law, I hereby quash the in criminal case No.58944/2016 and FIR No. 520/2015 dated 10.09.2015 under section 3 of The Delhi Prevention of Defacement of Property Act, 2007 and emanating proceedings thereto qua the petitioner."
(emphasis supplied) 53.3 Similarly, it has been held in the case of Megha Singh Vs. State of Haryana,7 which reads as under
"....4. It was on his complaint a formal first information report was lodged and the case was initiated. He being complainant should not have proceeded with the investigation of the case. But it appears to us that he was not only the complainant in the case but he carried on with the investigation and examined witnesses under Section 161, Cr.P.C. Such practice, to say the least, should not be resorted to so that there may not be any occasion to suspect fair and impartial investigation."
(emphasis supplied) 53.4 Thus, in view of the above discussion, the prosecution has failed to prove the hurt, assault or criminal force or obstruction to deter public servant from discharge of his public functions and duty. The prosecution has further failed to prove mischief causing damage to the car bearing no. DL3CAZ0491. Hence, offences u/s 186/332/353/427 of IPC 7 AIR 1995 SC 2339 FIR No. 79/10 PS Jamia Nagar State v. Asif Mohd Khan (Ex MLA) & Ors. 49 of 52 is not proved against accused Asif Mohd Khan, Wahab and Mukaram Agha @ Mickey.
(v) Inconsistent testimony regarding damage to public property
54. Furthermore, inconsistency is apparent in the version of the prosecution witnesses regarding the breaking of the door of the SHO's room as well as the potted plants. While some of the police witnesses such as PW4, PW10 and PW15 have deposed that Asif Mohd Khan alongwith his supporter broke the door of the SHO's room while PW6, PW7 and PW17 deposed that the same got broken due to re-entering inside the room of the SHO, whereas PW8, PW9 and PW11 deposed that the same got broken due to throwing of pots and stone pelting by the crowd, respectively. PW5 deposed that Asif Mohd Khan came out angrily and broke the door of the SHO's room. However, during his cross examination, he changed his version and stated that same got broken due to pushing and shoving. PW6 and PW7 categorically admitted that they did not see accused Asif Mohd Khan throwing stones or pots. The prosecution also could not prove specifically as to which accused persons amongst them broke the door of the SHO room as well as the potted plants at the premises of the police station. Since the prosecution could not prove beyond reasonable doubt that the public property was FIR No. 79/10 PS Jamia Nagar State v. Asif Mohd Khan (Ex MLA) & Ors. 50 of 52 damaged due to the act of accused persons namely Asif Mohd Khan, Wahab and Mukaram Agha @ Mickey, therefore, commission of offences under Section 3 of PDPP Act is not proved.
55. There is no gain saying that if two reasonably, probable and evenly balance views of evidence are possible, one must necessarily concede to the existence of a reasonable doubt. The aforementioned lacunae in the story of the prosecution render the version of the prosecution doubtful, leading to irresistible conclusion that the burden of proving the guilt of the accused persons beyond reasonable doubt has not been discharged by the prosecution. Thus, this court is of the view that the prosecution has failed to bring on record any cogent evidence in order to prove the commission of and guilt of accused persons u/s 186/147/148/332/353/427 of IPC and Section 3 of PDPP Act, beyond reasonable doubt, thus, entitling the accused persons to benefit of doubt.
Conclusion:
56. Accordingly, this court hereby accords the benefit of doubt to the accused persons for the offences u/s 186/147/148/332/353/427 of IPC and Section 3 of PDPP Act and hold the accused persons not guilty of commission of said offences. Accused persons namely Asif Mohd. Khan (ex MLA), Wahab, Siraj, Aqeel Ahmad, Javed Nisar Khan, Mukaram Agha @ Mikki and FIR No. 79/10 PS Jamia Nagar State v. Asif Mohd Khan (Ex MLA) & Ors. 51 of 52 Nawab Ahmad are acquitted of the offences u/s 186/147/148/332/353/427 of IPC and Section 3 of PDPP Act.
57. The accused persons are directed to furnish bail bonds u/s 437A of Cr.P.C.
58. Copy of this judgment be given free of cost to the accused persons.
59. File be consigned to record room after due compliance.
Announced in the open (TANYA BAMNIYAL)
court on 18.09.2024 ACJM-03/RADC
NEW DELHI/18.09.2024
FIR No. 79/10 PS Jamia Nagar
State v. Asif Mohd Khan (Ex MLA) & Ors. 52 of 52