Delhi District Court
State vs . Salman on 3 September, 2022
IN THE COURT OF SH. SNEHIL SHARMA, METROPOLITAN
MAGISTRATE-08, SOUTH EAST DISTRICT, SAKET
COURTS, SAKET, NEW DELHI
JUDGMENT
STATE VS. Salman FIR NO: 132/2021 P. S. Jamia Nagar U/s 188 IPC a Sl. No. of the case : 7619/2021 b Date of commission : 07.04.2021 c Date of institution of the case : 21.10.2021 d Name of the complainant : ASI Devender Singh e Name of the accused and his : Salman, S/o Sh. Aslam, R/o House parentage no. R 127, Gali no.6, Jogabai Extension, 20 Futa Road, Batla House, Jamia Nagar, 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 : 03.09.2022
BRIEF STATEMENT OF REASONS FOR THE DECISION
1. As per the case of the prosecution that on 07.04.2021, at about 11.15 pm, at main road gali no. 9, Zakir Nagar, Okhla, Jamia Nagar, it is alleged against accused Salman, within the jurisdiction of P.S. Jamia Nagar, he was found wandering during night curfew and thus violated the prohibitory orders/ FIR No. 132/2021 PS Jamia Nagar PAGE 1 OF PAGE 7 notification no. 1750-1789/ACP/NFC, dated 06.04.2021 and thereby committed an offence punishable U/s 188 IPC and within my cognizance. On the said complaint, FIR was lodged against the fact that he was wandering in violation of the order of ACP for roaming in night curfew and investigation was carried out. After completion of the investigation, chargesheet was filed against the accused Salman.
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. Prosecution examined 2 witnesses. PW1/ HC Sudhir deposed that on 07.04.2021, PW1 was posted at PS Jamia Nagar and along with ASI Devender were on patrolling duty in night curfew. When they reached at street no.9, Zakir Nagar, they saw accused were moving in night curfew without wearing face mask. In the meantime, PW1 asked the reason of moving in night curfew. However, said person could not give satisfactory answer. Thereafter, ASI Devender prepared rukka which is Ex. PW1/A and same was handed over to PW1 for registration of FIR. Thereafter, PW1 came back to the spot and handed over the original copy of FIR and rukka to ASI. ASI Devender recorded statement u/s 161 Cr.P.C. of PW1. PW1 correctly identified accused.
4. PW2/ SI Devender Singh deposed that on 07.04.2021, PW2 was posted at PS Jamia Nagar as ASI and PW2 along FIR No. 132/2021 PS Jamia Nagar PAGE 2 OF PAGE 7 with Ct. Sudhir were on patrolling duty in night curfew. When they reached at street no.9, Zakir Nagar, they saw accused was moving in night curfew without wearing face mask. In the meantime, PW2 asked the reason of moving in night curfew. However, accused could not give satisfactory answer. Thereafter, PW2 prepared rukka Ex. PW1/A bearing signature of PW2 at point A and same was handed over to Ct. Sudhir for registration of FIR. Thereafter, PW2 came back to the spot and handed over the original copy of FIR and rukka to PW2. In the meantime, PW2 arrested the accused person and prepared memo Ex. PW2/A bearing signature of PW2 at point A. PW2 also interrogated the accused and released him on his personal bond vide memo Ex.PW2/B bearing signature of PW2 at point A. Thereafter, PW2 recorded the statement of Ct. Sudhir u/s 161 Cr.P.C. PW2 correctly identified accused.
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. Accordingly, witness was 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 said that he used to work at Okhla Mandi and on his movement he had arguments with the police and in result this false case has been lodged. He further stated that he is innocent FIR No. 132/2021 PS Jamia Nagar PAGE 3 OF PAGE 7 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.
8. 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.
9. 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.
10. 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.
11. 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 prohibitory orders u/s144 Cr.P.C.
FIR No. 132/2021PS Jamia Nagar PAGE 4 OF PAGE 7 vide notification order no. F1571DDMA, 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.
12. Therefore, order of ACP was widely known fact that mask was compulsory / mandatory to save oneself from corona virus and ACP being public servant was lawfully empowered.
13. Further, from the testimony of PW1 and PW2, it is found that accused was correctly identified by them. It is also admitted by prosecution witnesses that even though it was a public spot, but as it was the time of night curfew, no public persons were present at the spot. PW2 also contradict PW1 on the point that when accused was stopped and accused was wearing mask. Though PW2 corroborate PW1 on the point that accused was wandering during night curfew.
14. It is pertinent to mention here that it is the case of violation of night curfew as accused was wandering during night curfew. Perusal of the case file also shows that accused in his statement recorded u/s 313 Cr.P.C. admits that he work at Okhla Mandi and on his movement he had arguments with the police as the mandi works 24 hours. 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 FIR No. 132/2021 PS Jamia Nagar PAGE 5 OF PAGE 7 by various government agencies to avoid spread of pandemic, accused was having knowledge of corona virus but found roaming during night curfew. This reason is not sufficient to allow accused to be part of spreader of pandemic.
15. Further PW1 and PW 2 both submit that public witnesses were not made the part of the present case as it was night curfew and no public person was present there at that time. For the argument that public witness were not joined. It is necessary to reiterate that testimony of police witness can not be doubted in absence of non joining of public witness. 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.
16. 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 roaming in night curfew nor could give satisfactory answer as to why he was wandering during night curfew nor he brought FIR No. 132/2021 PS Jamia Nagar PAGE 6 OF PAGE 7 any document to show that he was allowed for movement during curfew. 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 curfew. Hence, PW1 and PW2 are found wholly reliable.
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 Salman is convicted u/s. 188 IPC.
19. Let the convict Salman be heard on the point of sentence.
Copy of the judgment be given free of cost to the convict.
Announced in the open court (Snehil Sharma) on 03.09.2022 Metropolitan Magistrate-08, South East, Saket, New Delhi.
FIR No. 132/2021PS Jamia Nagar PAGE 7 OF PAGE 7