Delhi District Court
Chaudhary Mateen Ahmed vs State (Nct Of Delhi) on 5 June, 2013
IN THE COURT OF SH. RAKESH KUMAR
ADDL. SESSIONS JUDGE02 : (NORTH EAST) :
KARKARDOOMA COURTS : DELHI
CA No.04/2013
1. Chaudhary Mateen Ahmed,
S/o Mahfooz Ali,
R/o C53/9A, Gali No.14,
Noorani Masjid, Chauhan Bangar,
Delhi.
2. Jamir Ahmed Munna,
S/o Jahirul Hassan,
R/o C71, New Seelampur, Delhi. .....Appellants.
Versus
State (NCT of Delhi) .....Respondent.
A N D CA No.05/2013 State (NCT of Delhi) .....Appellant.
Versus
1. Sultan Ahmed, S/o Shamshad Ahmed, R/o J34/8B, Gali No.6, Chauhan Bangar, Delhi.
2. Mohd. Ashraf, S/o Mohd, Faruk, R/o 134/7, Gali No.7, Jafrabad, Delhi. .....Respondents.
(CA No.04/2013) Chaudhary Mateen Ahmed & Anr. Vs. State (NCT of Delhi) AND (CA No.05/2013) State (NCT of Delhi) Vs. Sultan Ahmed & Ors. Page No. 1 of pages 24 :J U D G M E N T:
1. By this common judgment, I shall dispose off the following two appeals:
(a). Criminal Appeal bearing No.04/2013 titled as Chaudhary Mateen Ahmed & Anr. Vs. State interalia praying for setting aside the aforesaid impugned judgment and order on sentence qua the appellants Chaudhary Mateen Ahmed and Jamir Ahmed Munna and passing of order of acquittal in their favour.
(b). Criminal Appeal No.05/2013 titled as State Vs. Sultan Ahmed & Anr. filed on behalf of prosecution/State interalia praying for setting aside the impugned judgment dated 19.01.2013 qua the acquittal of accused Sultan Ahmed and Mohd. Ashraf and passing of any other order as deemed proper by the court.
The above said appeals arose out of the judgment dated 19.01.2013 whereby accused persons namely Sultan Ahmed and Mohd. Ashraf were acquitted of the charges and the accused Chaudhary Mateen Ahmed and Jamir Ahmed Munna were convicted U/s 147/322/353 IPC r/w Sec.149 IPC and vide the impugned order on sentence dated 29.01.2013 awarded the sentence for RI for a period of twenty four months with fine of Rs.
10,000/ (in default to undergo SI for one month) U/s 147 IPC; RI for a period of thirty six months with a fine of Rs.10,000/ (in (CA No.04/2013) Chaudhary Mateen Ahmed & Anr. Vs. State (NCT of Delhi) AND (CA No.05/2013) State (NCT of Delhi) Vs. Sultan Ahmed & Ors. Page No. 2 of pages 24 default to undergo simple imprisonment for one month) U/s 332 IPC and RI for a period of twenty four months with a fine of Rs.
10,000/ (in default to undergo SI for a period of one month) U/s 353 IPC. The said impugned judgment and order on sentence were passed in the case bearing FIR No.12/2001 PS Seelampur titled as State Vs. Chaudhary Mateen Ahmed & Ors.
2. Succinctly stated the facts of the case necessary for the disposal of the appeals are that on 07.01.2001, in compliance of the orders of the Hon'ble Supreme Court, complainant E. Raja Babu SDM Punjabi Bagh had gone to Jafrabad for closure of F Category Industrial Units with his sealing team. At about 12.30 noon, he was sealing a Unit named "Mahrom Mechanical" situated at GF 134/7, Jafrabad, Delhi. Meanwhile, the area MLA Chaudhary Mateen Ahmed and the area councilor Jameer Ahmed Munna came there alongwith a mob of about 10001500 people and disrupted the peaceful sealing/closure of the factory. MLA Mateen Ahmed was alleged to have grabbed the arm of complainant E. Raja Babu and forcibly dragged him into the unit which was being sealed. The mob pelted stones and assaulted Virender Singh, a member of SDM Team, who consequently sustained injuries. Upon the complaint of complainant, rukka was prepared and FIR No.12/2001 was registered in the instant matter.
(CA No.04/2013) Chaudhary Mateen Ahmed & Anr. Vs. State (NCT of Delhi) AND (CA No.05/2013) State (NCT of Delhi) Vs. Sultan Ahmed & Ors. Page No. 3 of pages 24 Accused Chaudhary Mateen Ahmed, Jamir Ahmed Munna, Nadim Dehlawi, Sultan Ahmad, Najim Nakabi, Mohd. Ashraf were accordingly apprehended in the instant matter. Upon completion of investigation, charge sheet U/s 173 Cr.P.C was filed in the court and charge U/s 147/148/149/186/332/353 IPC was framed against the accused persons, to which they pleaded not guilty and claimed trial. However, during the course of trial, accused Nadeem Dehlavi and Nazim Nakabi expired and proceedings qua them were abated. The trial, thereafter, continued against the remaining accused persons. As many as 13 witnesses were examined by the prosecution in its support and then all the accused persons were examined U/s 313 Cr.P.C, wherein they pleaded innocence, however they preferred not to lead any evidence in their defence.
Then after hearing the arguments, the Ld. Trial Court vide the impugned judgment dated 19.01.2013 acquitted the accused Sultan Ahmed and Mohd. Ashraf and accused Chaudhary Mateen Ahmed and Jamir Ahmed Munna were convicted U/s 147/322/353 IPC r/w Sec.149 IPC and thereafter, vide the impugned order dated 29.01.2013 they were awarded the aforesaid sentence.
3. In the criminal appeal bearing No.04/2013, the appellants namely Chaudhary Mateen Ahmed and Jamir Ahmed Munna are impugning the judgment dated 19.01.2013 qua their conviction (CA No.04/2013) Chaudhary Mateen Ahmed & Anr. Vs. State (NCT of Delhi) AND (CA No.05/2013) State (NCT of Delhi) Vs. Sultan Ahmed & Ors. Page No. 4 of pages 24 and subsequent order of their sentence dated 29.01.2013 and praying for passing of acquittal order in their favour on the following grounds:
(i). It has not been appreciated that PW1 Virender Singh & PW5 E. Raja Babu, the star witnesses of the prosecution, have turned hostile during their examination in chief and did not support the prosecution version.
PW1 has stated that at the relevant time, he did not know that the appellants were also there in the crowd and that he came to know about that lateron from the public persons. He specifically denied the suggestion given by Ld. Addl. PP that it was the appellant who had manhandled PW5. He did not even identify the appellants.
Similarly, PW5 had stated that some one from the mob caught his hand and dragged him to the sealing unit and he lodged a complaint in this regard to the SHO. He further deposed that he could not identify the person who caught his hand and that some public person had told him that the person who caught his hand was the MLA. He did not identify any of the appellants and deposed that he was not aware as to who was the MLA and the councilor of the area at the relevant time.
On a specific question put by Ld. Addl. PP in cross examination, the witness stated that when he inquired from the public as to who were the person who had caught hold of his (CA No.04/2013) Chaudhary Mateen Ahmed & Anr. Vs. State (NCT of Delhi) AND (CA No.05/2013) State (NCT of Delhi) Vs. Sultan Ahmed & Ors. Page No. 5 of pages 24 hand and disturbed the sealing process, they told him that they were the local MLA and councilor. He further stated that he could not identify any of the persons standing in the doc as he was not aware about them at the time of incident. He even could not tell the name of the persons who had disclosed the above facts.
(ii). It has not been appreciated that from the perusal of the testimony of PW6 HC Som Pal it appears that he was not present at the spot specially in the light of the fact that the only persons, who were manhandled in the crowd i.e. PW1 & PW5 could not identify the appellants and this witness had identified the appellants just because he knew them even prior to the incident and had seen their photographs in the newspaper.
(iii). PW7 HC Sanjeev, who had deposed in his examination in chief that on the relevant day, he was posted in PS Seelampur. At about 2.20 PM HC Khajan Singh handed over to him one original rukka and a copy of FIR. He alongwith SI Ramji Pandey went to the spot where they met SI Kamal Kishore. SI Ramji Pandey prepared the site plan at the instance of SI Kamal Kishore. It is the case of the prosecution that SI Kamal Kishore had prepared the rukka and sent it to police station for registration of FIR. However, during the cross examination SI Kamal Kishore PW12 specifically deposed that he prepared the rukka at the police station at about 2.00 PM. Therefore, it is impossible that (CA No.04/2013) Chaudhary Mateen Ahmed & Anr. Vs. State (NCT of Delhi) AND (CA No.05/2013) State (NCT of Delhi) Vs. Sultan Ahmed & Ors. Page No. 6 of pages 24 when HC Sanjeev and SI Ramji Pandey having collected the rukka and the FIR allegedly reached the spot, they found SI Kamal Kishore there or that SI Ramji Pandey prepared the site plan at his instance. Especially when it is not the case of the prosecution that after preparing the rukka SI Kamal Kishore again went to the spot.
(iv). HC Akrool Haq and HC Rajbir were on duty alongwith SI Kamal Kishore and PW8 Ct. Nigam Singh regarding sealing in the area of Jafrabad and they were part of sealing team but the prosecution for the reasons best known to it, chose not to examine HC Akrool Haq and HC Rajbir during the trial. Further it is not realized that surprisingly though PW8 Nigam Singh during the cross examination stated that he was not able to disclose as to who was the owner of factory in question or as to whether he was present in the court or not, yet he identified the appellant no.1 as MLA of the area and being present at the spot.
(v). It has not been appreciated that the testimony of PW10 HC Rajpal is also not trustworthy as he in his examination in chief deposed that SDM E. Raja Babu gave a complaint to the SHO to which SHO entrusted to SI Kamal Kishore, who prepared the rukka and sent it through one constable to PS Seelampur. He further deposed that he could not recollect the faces of the accused persons i.e. MLA Mateen Ahmed and the Councilor (CA No.04/2013) Chaudhary Mateen Ahmed & Anr. Vs. State (NCT of Delhi) AND (CA No.05/2013) State (NCT of Delhi) Vs. Sultan Ahmed & Ors. Page No. 7 of pages 24 Nazeer Ahmed. In cross examination, this witness has deposed that he did not know who was the owner of the factory or whether he was present in the Court. He further deposed that he did not know the names of the accused persons at that time but came to know about that from the public.
(vi). It has not been appreciated that PW12 Insp. Kamal Kishore deposed in his examination in chief that on 07.01.2001 when the SDM and his staff were trying to seal the factory, its owner Mohd. Ashraf opposed them stating that he would not let them seal his factory. He further deposed that "in the meantime the mob of approximately 8001000 persons led by accused persons Mateen Ahmed, Zahir Ahmad @ Munna, Nadeem Dahelbi, Nazim Naqvi and Sultan Kilone Wala. Public persons from the mob took the SDM E. Raja into the above mentioned factory." Evidently, the witness does not ascribe any overt act to the appellants.
(vii). It has also not been appreciated that PW13 Ct. Rajbir Singh, who in his examination in chief has claimed that on the relevant day, he was engaged in the sealing programme alongwith the SDM and his staff and stated that when they were sealing a factory in the name of Mehroom Mechanic, a crowd of approximately 100200 persons came there and started shouting. Some public persons took away in the factory. But he has failed to identify any of the accused persons. In his cross examination by (CA No.04/2013) Chaudhary Mateen Ahmed & Anr. Vs. State (NCT of Delhi) AND (CA No.05/2013) State (NCT of Delhi) Vs. Sultan Ahmed & Ors. Page No. 8 of pages 24 Ld. Addl. PP he specifically deposed that he could not say as to who had dragged the SDM inside the factory. He specifically denied the suggestion that it was Mateen Ahmed, who dragged the SDM inside the factory.
(viii). It has not been considered that while as two star witnesses of the prosecution i.e. PW1 & PW5 failed to identify any of the appellants, PW6 HC Som Pal, though identified appellant no.1, did not identify either appellant no.2 or the two other accused. Moreover, Ct. Nigam Singh, through identified all the accused person, but his version in relation to the role ascribed to appellant no.1 is materially different from that of others.
(ix). It has not been further appreciated that the scrutiny of evidence placed on record reveals that on one hand PW1 & WP5, the only witnesses allegedly handled or manhandled by the crowd failed to identify the appellants at all, on the other hand the witnesses (HC Som Pal and Ct. Nigam), who did identify appellant no.1, could not identify either appellant no.2 or the others and gave different versions of the same incident. Further PW12 & 13 had deposed in a generalized manner that some public persons had taken the SDM in the premises. Neither of them could identify any of the accused. Hence, there irresolvable incompatibilities in the depositions of the prosecution witnesses not only in relation to the identity of the accused but also in respect (CA No.04/2013) Chaudhary Mateen Ahmed & Anr. Vs. State (NCT of Delhi) AND (CA No.05/2013) State (NCT of Delhi) Vs. Sultan Ahmed & Ors. Page No. 9 of pages 24 to the roles attributed to them.
(x). It has also not been explained as to what had prevented IO SI Ramji Pandey to prepare the site plan at the instance of either the SDM or any other public person present at the spot. The preparation of Site Plan at the instance of SI Kamal Kishore who himself had prepared the rukka sitting in the PS enclouds the entire episode in mystery especially in view of the fact that besides depicting the factory no.137/7 instead of 134/7, the site plan is also bereft of any details qua the presence of either any public persons or the SDM or the police officials or even the owner of the factory.
(xi). It has not been appreciated that neither any document to prove that accused Mohd.
Asraf was the owner of the factory nor any evidence has been brought on record regarding the existence of factory at the spot or in relation to the fact that some objectionable manufacturing was going on there, which had brought it within the pale of being sealed. Further neither any photographs of the factory were taken nor was the Apex Court's order or any sealing material were sealed which could connect the alleged sealing and the alleged factory premises. Strangely so, not even a single person from the admitted crowd of 10001500 people has been examined by the prosecution.
(xii). Admittedly the common object of the so called mob was to prevent the sealing of factory (CA No.04/2013) Chaudhary Mateen Ahmed & Anr. Vs. State (NCT of Delhi) AND (CA No.05/2013) State (NCT of Delhi) Vs. Sultan Ahmed & Ors. Page No. 10 of pages 24 premises bearing no.134/7 Jafrabad, but the premises which has been depicted in the site plan is 137/7, Jafrabad Delhi. The site plan was admittedly prepared at the spot by SI Ramji Pandey at the instance of SI Kamal Kishore. Therefore, the rukka which had taken place on 07.01.2001 was in respect of premises no.137/7 which was being sealed by the SDM. Hence the sealing was taking place at the premises no. 137/7 and not at premises no.134/7 and as such there was no occasion for the appellant to create a fiasco at premises no.134/7.
(xiii). In fact, the assembly which was lawful at the beginning subsequently got unlawful when it started pelting stones on the sealing party. Even if it is assumed for the sake of arguments that the appellant no.1 was there in the assembly, it was so only till the time it was lawful. The moment the assembly of people turned unlawful and started pelting stones on the sealing party, the appellant ceased to be its member as he rushed to the SDM and took him off into the premises so as to save him. As PW1 Virender Singh got injured while the appellant was rescuing the SDM, appellant no.1 can not be roped in with the help of section 149 in relation of PW1 getting injured, especially when it is not the case of the prosecution that the appellants incited the mob to pelt stones.
(xiv). It has not been realized that at the first place the intend behind taking the SDM into the factory was to save him from being injured as (CA No.04/2013) Chaudhary Mateen Ahmed & Anr. Vs. State (NCT of Delhi) AND (CA No.05/2013) State (NCT of Delhi) Vs. Sultan Ahmed & Ors. Page No. 11 of pages 24 the stone pelting had started and one of the staff had already got injured. Had the intention behind the act would have been to obstruct the SDM from discharging his duty, he would have been taken away from the premises and not inside it.
(xv). As far as, appellant no.2 is concerned, no overt act has been attributed to him by any of the witnesses. Some of them have even not identified him.
(xvi). One of the grounds on which, accused Mohd. Ashraf has been acquitted by the Trial Court is that his presence at the spot is doubtful. It is improbable that when the owner of the factory is himself is not present at the spot to protect the alleged sealing, the MLA and councilor of the area would lead a large mob to the spot to prevent the sealing.
(xvii). In the statement of the accused recorded U/s 313 Cr.P.C, it has been put to the appellants that they alongwith other members of the unlawful assembly were armed with "deadly weapons". It is pertinent to mention that none of the prosecution witness have deposed in their examination in chief that the accused and others were armed with any weapons at all.
Furthermore, it has been put to the appellants that they assaulted the SDM as well as Virender Singh Dabas and thereby inflicted simple injuries on their persons. It is to be noted that the case of the prosecution is not that the appellants had inflicted injuries on the person of (CA No.04/2013) Chaudhary Mateen Ahmed & Anr. Vs. State (NCT of Delhi) AND (CA No.05/2013) State (NCT of Delhi) Vs. Sultan Ahmed & Ors. Page No. 12 of pages 24 Virender Singh, but that while appellant no.1 was taking away the SDM inside the factory, somebody from the mob pushed Virender Singh and thus he received injuries. Moreover, it was not the case of the prosecution that the SDM received any injuries at all. The only allegation that is coming forth against appellant no.1 in the testimonies of the witnesses is that he caught hold of the hand of the SDM and took him inside the factory. But this has not been put to the appellant no.1 under Sec.313 Cr.P.C.
Moreover, it has not been put to appellant no.1 that as to in respect of which property the site plan was prepared. This assumes significance in view of the fact that the address of the factory premises featuring in the testimonies of the witnesses is '134/7' but the site plan depicts if to be '137/7'.
4. On the other hand the Criminal Appeal No.05/2013 qua the findings recorded in the impugned judgment dated 19.01.2013 regarding the acquittal of accused Sultan Ahmed and Mohd.
Ashraf, has been preferred by the appellant/State on the following grounds:
(i). It has not been appreciated by Ld. Trial Court that PW6, 8, 9 & 12 have also identified both the acquitted accused persons namely Sultan Ahmed and Mohd. Ashraf as the members of unlawful assembly.
(ii). It is ignored that PW12 has specifically (CA No.04/2013) Chaudhary Mateen Ahmed & Anr. Vs. State (NCT of Delhi) AND (CA No.05/2013) State (NCT of Delhi) Vs. Sultan Ahmed & Ors. Page No. 13 of pages 24 deposed that the accused Sultan was also leading the mob and he was arrested at the instance of complainant and further the accused Mohd. Ashraf was arrested at the instance of complainant being the owner of the factory and he was opposing the seal of the factory.
(iii). It has also not been appreciated that PW12 was examined on 24.05.2012 i.e. after around 11 years from the date of incident and wrong identification of accused Sultan Ahmed as Mohd. Ashraf on his part could be occurred due to lapse of time. Moreover, it was a minor discrepancies and merely stating the name of accused does not create any dent in the case of prosecution as the witness had correctly identified all the accused persons present in the court.
(iv). It has been ignored that PW12 has specified the overt act of accused persons by stating that Mohd. Ashraf, the owner of factory, opposed the SDM and his staff against the sealing.
(v). It has not been appreciated that it is the quality and not the quantity of evidence which matters and PW12 has distinctly deposed that the owner of factory obstructed public officials in discharging their public function.
(vi). Ld. Trial Court has failed to appreciate that accused Sultan and Mohd. Ashraf were the members of the unlawful assembly alongwith convict Chaudhary Mateen Ahmed and Jamir Ahmed @ Munna, who were present at the spot and obstructed the public official.
(vii). The impugned order dated 19.01.2013 qua (CA No.04/2013) Chaudhary Mateen Ahmed & Anr. Vs. State (NCT of Delhi) AND (CA No.05/2013) State (NCT of Delhi) Vs. Sultan Ahmed & Ors. Page No. 14 of pages 24 the order of acquittal of accused Sultan Ahmed and Mohd. Ashraf is arbitrary and against all principles of law and the same has been passed without appreciating the evidence and therefore, the same is bad in law.
On these grounds the appellant (i.e. State) is seeking the order of conviction qua the accused Sultan Ahmed and Mohd.
Ashraf.
5. I have carefully heard the rival submissions of the counsels for the parties in both the appeals. I have also perused the entire material placed on record particularly the impugned judgment and order on sentence, the contents of both the appeals especially the grounds taken therein as well as the record summoned from the Trial Court.
6. Besides the aforementioned grounds taken on behalf of the appellants (in CA No.04/13), it is also claimed by Sh. Hari Haran, Ld. Counsel for the appellants (in CA No.04/13) that the impugned judgment regarding the conviction of appellants (in CA Mo.04/13) is not sustainable in the eyes of law as the offence U/s 186 on one hand and U/s 332 & 353 IPC on the other hand are inextricably intertwined that they defy severance and once it is held that offence U/s 186 IPC is not made out than offence u/s 332 & 353 IPC also can not go. Since prosecution has failed to prove the (CA No.04/2013) Chaudhary Mateen Ahmed & Anr. Vs. State (NCT of Delhi) AND (CA No.05/2013) State (NCT of Delhi) Vs. Sultan Ahmed & Ors. Page No. 15 of pages 24 complaint U/s 195 Cr.P.C, so not only the offence U/s 186 IPC goes but the other camouflage Section of 332 & 353 IPC also goes. In their said contention they have placed reliance upon a judgment reported as 1996 JCC 535 (DHC).
On the other hand, as per Ld. Addl. PP for the state/ respondent (in CA No.04/13) the appeal as filed by the aforementioned appellants is devoid of merits as it has failed to point out any material defect or illegality in the impugned judgment of conviction and order on sentence qua the said appellants. Ld. Trial Court has correctly appreciated the facts and evidence brought on record qua the appellants. Although the complainant i.e. PW5 has refused to identify the accused Mateen Ahmed as an assailant but it can not be overlooked that the FIR in the instant matter was lodged upon the hand written complaint of PW5 and in his examination in chief he admitted that he made the complaint Ex.PW5/A to the SHO and he even identified his signatures thereupon. Moreover, if the testimonies of other important witnesses i.e PW6 HC Som Pal, PW8 Ct. Nigam Singh and PW12 Insp. Kamal Kishore are analyzed then it is established that the case of the prosecution is established not only against the appellants but also against the coaccused Sultan Ahmed and Mohd. Ashraf. Further it is well settled that it is the quality and not (CA No.04/2013) Chaudhary Mateen Ahmed & Anr. Vs. State (NCT of Delhi) AND (CA No.05/2013) State (NCT of Delhi) Vs. Sultan Ahmed & Ors. Page No. 16 of pages 24 the quantity of the evidence which matter and Ld. Trial Court while rightly separating chaff from the grain to evaluate the credibility of the witnesses, has correctly held the appellants guilty and thus the appeal as preferred is liable to fail. It is specifically urged that the offences U/s 186 and 353 or 332 IPC are distinct and in the absence of a complaint U/s 195 Cr.P.C regarding the offence U/s 186 IPC, trial for offence U/s 353 or 332 IPC is not barred.
As regards to the appeal (i.e. CA No.05/13) filed on behalf of State, it is submitted by Ld. Addl. PP for the State that since PW6, 8, 9 & 12 have also identified both the acquitted accused persons namely Sultan Ahmed and Mohd. Ashraf as the members of unlawful assembly, so they also should have been held guilty by the Trial Court. It has been ignored by Ld. Trial Court that PW12 has specifically deposed that the accused Sultan was also leading the mob and he was arrested at the instance of complainant and further the accused Mohd. Ashraf was arrested at the instance of complainant being the owner of the factory and he was opposing the seal of the factory. Further the minor discrepancies occurred in the statement of PW12 regarding the date of incident and wrong identification of accused Sultan Ahmed as Mohd. Ashraf was due to lapse of time and it was not significant also. It can not be denied that it is the quality and not the quantity of evidence which (CA No.04/2013) Chaudhary Mateen Ahmed & Anr. Vs. State (NCT of Delhi) AND (CA No.05/2013) State (NCT of Delhi) Vs. Sultan Ahmed & Ors. Page No. 17 of pages 24 matters and PW12 has distinctly deposed that the owner of factory obstructed public officials in discharging their public function.
Per contra, according to Ld. Counsel for respondents (in CA No.05/12) the appeal as filed by the State is devoid of merits as it has failed to point out any material defect or illegality in the impugned judgment of acquittal recorded by Ld. Trial Court qua the respondents (in CA No.05/13). In the absence of any clinching evidence, qua the respondent namely Mohd. Ashraf, the Trial Court has rightly declined to rely upon the sole testimony of Insp.
Kamal Kishore, more so, when he himself has failed to correctly identify the owner of the factory i.e. accused Mohd. Ashraf.
Similarly, in the circumstances when none of the material prosecution witnesses i.e. PW6, PW8, PW10 have levelled any culpable allegations against Sultan Ahmed and they all had generally testified that they recognize the person present in the court by their faces and even PW12 has faltered in identifying accused Sultan and has wrongly identified him as Ashraf. Ld. Trial Court has rightly held him not guilty by giving benefit of doubt to him.
7. I have given my thoughtful consideration to the aforesaid rival submissions and have also gone through the entire material (CA No.04/2013) Chaudhary Mateen Ahmed & Anr. Vs. State (NCT of Delhi) AND (CA No.05/2013) State (NCT of Delhi) Vs. Sultan Ahmed & Ors. Page No. 18 of pages 24 placed on record.
First of all, I am unable to restrain myself from appreciating the efforts made by Ld. Trial Court in recording the judgment in a beautiful manner. Further I find myself in complete agreement with the findings recorded by Ld. Trial Court qua the acquittal of accused Sultan Ahmed and Mohd. Ashraf, and therefore, the appeal bearing CA no.05/13 as preferred by State is liable to fail.
No doubt, the material available on record against the accused Mohd. Ashraf as well as the accused Sultan Ahmed are on similar footings and since none of the material prosecution witnesses have levelled any culpable allegations against them and they have testified in general terms as regards to their identities, so both of them have rightly been acquitted by giving them benefit of doubt.
The injured i.e PW1 has given mutually contradictory statement against the owner of the factory and even PW5 also has not levelled any allegation against Mohd. Ashraf. Further although HC Som Pal (PW6), Ct. Nigam Singh (PW8) and ASI Raj Pal (PW10) have testified that the owner of factory has resisted the sealing proceedings but they have neither named accused Mohd. Ashraf nor identified him as owner of the factory.
Only PW12 has testified that the owner of the factory namely Mohd. Ashraf had opposed the sealing proceeding but even he (CA No.04/2013) Chaudhary Mateen Ahmed & Anr. Vs. State (NCT of Delhi) AND (CA No.05/2013) State (NCT of Delhi) Vs. Sultan Ahmed & Ors. Page No. 19 of pages 24 had wrongly identified accused Sultan as Ashraf. Above all the prosecution has failed to lead any documentary evidence to prove the ownership of above said factory.
Similarly, PW6 & PW10 have generally testified qua the accused Sultan Ahmed that he recognizes the accused present in the doc by their faces. The only person to name accused Sultan as part of the mob was Insp. Kamal Kishore but even he had faltered in identifying accused Sultan and had wrongly identified him as accuses Ashraf. Even for the sake of arguments, if the presence of accused Sultan is presumed at the spot, in the absence of any evidence on record to the contrary it can not be said that he shared the common object of the assembly. Thus the appeal as preferred by the state (i.e. CA No.05/13) is devoid of substance and same is liable for dismissal and same stands dismissed accordingly.
However, at the same time I am also not hesitant to say that I do not find myself in agreement with the findings recorded by Ld. Trial Court qua recording of conviction of the accused persons/ appellants namely Chaudhary Mateen Ahmed and Jamir Ahmed Munna for the reasons firstly the testimonies of material witnesses of the prosecution i.e. PW1, PW5, PW6, PW8, PW10 & PW12 are so contradictory and inconsistent to each other that they can (CA No.04/2013) Chaudhary Mateen Ahmed & Anr. Vs. State (NCT of Delhi) AND (CA No.05/2013) State (NCT of Delhi) Vs. Sultan Ahmed & Ors. Page No. 20 of pages 24 not be safely relied upon for holding the appellants (in CA No. 04/13) guilty and therefore, the appellants are also entitled for the benefit of doubt like the coaccused Sultan Ahmed and Mohd.
Ashraf.
A careful analysis of the testimonies of witnesses shows that on one hand PW1 & WP5, the only witnesses allegedly handled or manhandled by the crowd failed to identify the appellants at all, on the other hand the witnesses (HC Som Pal and Ct. Nigam), who did identify appellant no.1, could not identify either appellant no.2 or the others and gave different versions of the same incident. Further PW12 & 13 had deposed in a generalized manner that some public persons had taken the SDM in the premises. Neither of them could identify any of the accused.
Hence, there irresolvable incompatibilities in the depositions of the prosecution witnesses not only in relation to the identity of the accused but also in respect to the roles attributed to them. Further it has not been explained as what had prevented IO SI Ramji Pandey to prepare the site plan at the instance of either the SDM or any other public person present at the spot. The preparation of Site Plan at the instance of SI Kamal Kishore who himself had prepared the rukka sitting in the PS enclouds the entire episode in mystery especially in view of the fact that besides depicting the (CA No.04/2013) Chaudhary Mateen Ahmed & Anr. Vs. State (NCT of Delhi) AND (CA No.05/2013) State (NCT of Delhi) Vs. Sultan Ahmed & Ors. Page No. 21 of pages 24 factory no.137/7 instead of 134/7, the site plan is also bereft of any details qua the presence of either any public persons or the SDM or the police officials or even the owner of the factory. Moreover, neither there is any document on record to prove that accused Mohd. Asraf was the owner of the factory nor any evidence has been brought on record regarding the existence of factory at the spot or in relation to the fact that some objectionable manufacturing was going on there, which had brought it within the pale of being sealed. Even neither any photographs of the factory were taken nor was the Apex Court's order or any sealing material were sealed which could connect the alleged sealing and the alleged factory premises. Further, surprisingly not even a single person from the admitted crowd of 10001500 people has been examined by the prosecution. Admittedly the common object of the so called mob was to prevent the sealing of factory premises bearing no.134/7 Jafrabad, but the premises which has been depicted in the site plan is 137/7, Jafrabad Delhi. The site plan was admittedly prepared at the spot by SI Ramji Pandey at the instance of SI Kamal Kishore. Therefore, the rukka which had taken place on 07.01.2001 was in respect of premises no.137/7 which was being sealed by the SDM. Hence the spot of occurrence i.e. the place of sealing is doubtful. Further In the (CA No.04/2013) Chaudhary Mateen Ahmed & Anr. Vs. State (NCT of Delhi) AND (CA No.05/2013) State (NCT of Delhi) Vs. Sultan Ahmed & Ors. Page No. 22 of pages 24 statement of the accused recorded U/s 313 Cr.P.C, it has been put to the appellants that they alongwith other members of the unlawful assembly were armed with "deadly weapons". It is pertinent to mention that none of the prosecution witness have deposed in their examination in chief that the accused and others were armed with any weapons at all. Furthermore, it has been put to the appellants that they assaulted the SDM as well as Virender Singh Dabas and thereby inflicted simple injuries on their persons.
It is to be noted that the case of the prosecution is not that the appellants had inflicted injuries on the person of Virender Singh, but that while appellant no.1 was taking away the SDM inside the factory, somebody from the mob pushed Virender Singh and thus he received injuries. Moreover, it was not the case of the prosecution that the SDM received any injuries at all. The only allegation that is coming forth against appellant no.1 in the testimonies of the witnesses is that he caught hold of the hand of the SDM and took him inside the factory. But this has not been put to the appellant no.1 under Sec.313 Cr.P.C. Moreover, it has not been put to appellant no.1 that as to in respect of which property the site plan was prepared; rather, what has been put is, ".... thereafter IO prepared the site plan Ex.PW12/N at the instance of PW12.." This assumes significance in view of the (CA No.04/2013) Chaudhary Mateen Ahmed & Anr. Vs. State (NCT of Delhi) AND (CA No.05/2013) State (NCT of Delhi) Vs. Sultan Ahmed & Ors. Page No. 23 of pages 24 fact that the address of the factory premises featuring in the testimonies of the witnesses is '134/7' but the site plan depicts it to be '137/7'. Thus like the coaccused Sultan Ahmed and Mohd.
Ashraf, accused/appellants (in CA No.04/13) are also entitled for the benefit of doubt and as such the impugned judgment qua recording of conviction of accused/appellants (in CA No.04/13) can not be sustained any more and the same is liable to go. It is ordered accordingly. Resultantly, both the accused/appellants (in CA No.04/13) namely Chaudhary Mateen Ahmed and Jamir Ahmed Munna are hereby acquitted of the charges by giving them benefit of doubt. Their bail bonds stand discharged.
8. One copy of judgment be placed in both the files bearing CA No.04/2013 and 05/2013.
9. TCR (attached with the file bearing CA No.04/2013) alongwith the copy of judgment be sent back to the Ld. Trial Court.
10. Appeal files be consigned to Record Room after completion of necessary formalities.
(Announced in the open (RAKESH KUMAR)
court today on 05.06.2013) Addl. Sessions Judge (NE)
Karkardooma Courts, Delhi
(CA No.04/2013) Chaudhary Mateen Ahmed & Anr. Vs. State (NCT of Delhi) AND (CA No.05/2013) State (NCT of Delhi) Vs. Sultan Ahmed & Ors. Page No. 24 of pages 24