Delhi District Court
State vs Abdul Malik on 7 February, 2026
IN THE COURT OF SH. ANIMESH KUMAR, JMFC-02, NEW DELHI
DISTRICT, PATIALA HOUSE COURTS
CIS No. : DLND02-000157-2002
Cr. Cases : 40517/2016
State Vs. Abdul Malik & Ors
FIR No. : 387/2001
Police Station : Chanakyapuri
Under Sections : Under Section 147/148/149/186/353/
332 IPC and under Section 3 of Pre-
vention of Damage to Public Property
Act, 1984
JUDGMENT
Date of its institution : 30.11.2002 Name of the complainant : SI Bijay KUmar Date of Commission of of- : 08.11.2001 fence Digitally signed by ANIMESH KUMAR ANIMESH Date: KUMAR 2026.02.07 18:18:22 +0530 State v. Abdul Malik & Ors FIR No. 387/2001 Page 1 of 60 Name of the accused per- : (1)Abdul Malik sons (2) Abdul Amin, (3) Abdul Hamid, All S/o Late Sh. Abdul Salam, (4) Satara Begum, W/o Late Sh. Abdul Salam, (5) Mariyam W/o Abdul Amin (Proceeding abated vide order dated 14.09.2004) (6) Tanvir Begum, W/o Sh. Abdul Malik, (7) Parveen, W/o Sh. Abdul Wahid (8) Shehnaj, D/o Sh. Abdul Salam, All R/o Dargah Paanch Peer, Vinay Marg, Chanakyapuri, Security Police Line, New Delhi Offence complained of : 147, 148, 149, 186, 353 & 332 IPC and 3 of Prevention of Damage to Public Property Act, 1984 Plea of accused : Not Guilty Case reserved for orders : 30.08.2025 Final Order : Acquittal Digitally signed Date of orders : 07.02.2026 by ANIMESH ANIMESH KUMAR Date: KUMAR 2026.02.07 18:18:55 +0530 State v. Abdul Malik & Ors FIR No. 387/2001 Page 2 of 60
1. Vide this judgment, I seek to dispose off the case of the prosecution filed against the accused persons namely, Abdul Malik, Abdul Amin, Abdul Hamid, Satara Begum, Mariyam, Tanvir Begum and Parveen, Shehnaj, for having committed the offence punishable under Section 147, 148, 149, 186, 353 & 332 of Indian Penal Code, 1861 (here- inafter referred as "IPC"). and under Section 3 of Prevention of Damage to Public Property Act, 1984
2. Briefly stated, as per the case of prosecution, on 08.11.2001 be- tween 07:40 AM to 8 AM at Dargah Panch Peer behind Football Ground, Vinay Marg, Chanakyapuri, the above named accused per- sons gathered at the spot armed with weapon and were demolishing a boundary wall which was constructed by the CPWD. After receiv- ing the information about the incident, the police officials from PS Chanakyapuri including the SHO reached at the spot. When the po- lice officials asked the accused persons to stop the demolishing of wall, they obstructed the police officials from discharging their duty and assaulted them due to which some police officials namely Con- stable J.P. Dinkar, Constable Ratiram, Constable Sandeep and Constable Surinder sustained injuries. The accused persons being State v. Abdul Malik & Ors FIR No. 387/2001 Page 3 of 60 the member of an unlawful assembly also damaged the wall belong- ing to CPWD and also damaged the police gypsy and wireless set.
3. After completing the formalities, the investigation was carried out by PS Chanakyapuri and a charge sheet was filed against the accused persons. Thereafter, charge was framed against the accused vide order dated 19.05.2008 for the offence punishable u/s 147, 148, 149, 186, 353 & 332 of Indian Penal Code, and under Section 3 of Prevention of Damage to Public Property Act, 1984 to which they pleaded not guilty and claimed trial.
4. During the pendency of the trial, the accused Mariyam passed away, and, therefore, proceeding qua her was abated vide order dated 14.09.2004.
PROSECUTION EVIDENCE
5. In order to prove the guilt of accused persons, the prosecution ex- amined 20 witnesses.
i. PW-1 HC Rati Ram;
ii. PW2 SI Ramesh Chand;
iii. PW-3 HC Mohan Lal, the complainant, eye witness; iv. PW-4 HC Sandeep;
v. PW-5 HC Vijay Shankar;
State v. Abdul Malik & Ors
FIR No. 387/2001 Page 4 of 60
vi. PW-6 HC J. P. Shankar;
vii. PW-7 HC Rohitas;
viii. PW-8 Ramesh Chander;
ix. PW-9 SI Surender;
x. PW-10 ASI Ram Pratap;
xi. PW-11 HC Roop Chand;
xii. PW-12 IG Sunil Garg;
xiii. PW-13 ASI Birender;
xiv. PW-14 ASI Surender Singh;
xv. PW-15 ASI Babu Lal;
xvi. PW-16 Sh. Ajay Kumar Pandit;
xvii. PW-17 Inspector Bijay Kumar;
xviii.PW-18 ASI Subhash Chand;
xix. PW-19 Sh. Tasnium Uddin Siddiqui; and
xx. PW-20 Rtd. HC Mehtaab Singh
6. PW-1 HC Rati Ram is one of the police officials who reached at the spot after receiving the information about the demolition of wall of CPWD. He is also one of the eye witnesses and injured persons of present case. In the examination in chief, he deposed that on 08.11.2001, he got information from Ct. Mohan Lal that the occu- pants of the Dargah were demolishing the construction done by the CPWD and fighting with the officials of CPWD. After receiving the information, PW-1 alongwith SHO PS Chanakyapuri and other po- lice officials reached at the spot where Ct. Mohan Lal, Chowkidar of State v. Abdul Malik & Ors FIR No. 387/2001 Page 5 of 60 CPWD, SI Vijay Kumar and other police officials were found and he also found all the accused persons were the occupants of the Dar- gah. He further stated that the accused persons were found demol- ishing the wall constructed by the CPWD on the land. When the po- lice officials tried to stop the accused persons, they all started pelt- ing stones on the police party and scuffled with them. The accused persons started shouting that they would not let the wall remain there under any circumstances. In this scuffle and stone pelting, PW-1 along with Ct. Sandeep, Ct. Surender and Ct. J.P Dinkar got injured and the government gypsy bearing no. DL 1CF 3027 was also damaged. PW-1 was medically examined at RML Hospital. He correctly identified all the accused persons in the Court.
7. PW-1 was duly cross-examined by the Ld. APP for the State. During the cross-examination, he had stated that he did not state in his statement recorded u/s 161 Cr.P.C the fact that he was informed by Ct. Mohan Lal that the occupants of the Dargah were demolishing the construction done by CPWD and upon receiving the information, SI Vijay kumar along with police staff reached at the spot. He volun- tary deposed that he did not remember as 24 years had passed. He further stated that in his statement Ex.PW1/X, he did not state that State v. Abdul Malik & Ors FIR No. 387/2001 Page 6 of 60 Ct. Mohan Lal, Chawkidar of CPWD, SI Vijay Kumar and other po- lice staff were found on the spot. He further deposed that in his statement Ex.PW1/X, he did not state that the accused persons Sa- tara Begum, Mariyam, Tanveer Begum, Parveen and Shahnaz were demolishing the wall of CPWD and that he did not state that ac- cused persons had a scuffle with the police. He voluntarily deposed that he did not remember as 24 years had passed. He further de- posed that on 08.11.2001, his duty hours were from 6 am to 6 pm. He also stated that he reached at the spot at about 7.30 am. He stated that it took around half an hour to control the situation. There- after, he got seated in the van and taken to the hospital for medical examination. He also stated that the distance between RML Hospital to the spot is about 3-4 kms. He denied the suggestion that he did not sustain any injury or that his MLC was false. He further stated that the wall constructed by CPWD was situated behind the dargah with the distance of 5-6 feet away, however, he was not sure. He also stated that In the MLC, the cause of receiving the injury was not disclosed by the doctor. He did not remember who was driving the about said gypsy. He also stated that the wireless set of the said gypsy was damaged. He denied the suggestion that no such gypsy State v. Abdul Malik & Ors FIR No. 387/2001 Page 7 of 60 was damaged; that the accused persons did not pelt stones on the police party; that accused persons did not scuffle with the police par- ty; that accused persons did not damage the govt gypsy; that ac- cused persons were not demolishing the wall constructed by CPWD; that he never reached the spot at the time of alleged incident and that he was deposing falsely.
8. PW-2 SI Ramesh Chand was the duty officer. He proved on record the FIR no. 387/01 Ex.PW-2/A and endorsement on rukka Ex. PW-2/ B. He was duly cross-examined by the Ld. Defence Counsel. During the cross-examination, PW-2 deposed that he did not remember name of the officer who presented the rukka and who sent the rukka however it was presented around 09:40 am. He denied that sugges- tion that that no rukka was presented before him and that he fabri- cated in the present case in collusion with the Sh. Ramesh Chand Malik, SHO PS Chanakya Puri.
9. PW-3 HC Mohan Lal was another police official examined by the prosecution. He was also present at the spot at the time of the inci- dent. In the examination in chief, he deposed that on 08.11.2001, he was on duty from 8 AM to 8 PM near Mazar, Dargah Paanch Peer, where CPWD was raising a wall which was demolished by the ac- State v. Abdul Malik & Ors FIR No. 387/2001 Page 8 of 60 cused persons. When he requested the accused persons to not in- dulge in such activities, the accused persons continued doing that. He informed the control room and SHO and police force arrived at the spot including Ct. Rati Ram, Ct. J.P Dinker. The accused per- sons damaged the wireless set of the SHO. Bricks and stones were seized by the lO vide seizure memo Ex.PW-3/D. He correctly identi- fied the accused persons in the Court. He also deposed that on the day of the incident, he was on duty to protect the construction at Mazar which was obstructed by the accused persons and the public property was damaged and injuries were caused to the policemen.
10.PW-3 was duly cross-examined by the Ld. Defence Counsel. Dur- ing the cross examination, PW-3 deposed that he did not have at present any order of his posting at the spot. He further deposed that it must be entered into the rojnamcha/DD. He also stated that he was on duty from 8 pm to 8 am. He was posted in the PS Chanakya Puri in the year 1999. He further stated that before the incident, he has did not see the spot. He also stated that on the spot, there was a Mazar and one room with a tin shed at the spot, but he could tell the exact measurement of the Mazar and room. He did not know how many persons were there in the Mazar to look after it. He de- State v. Abdul Malik & Ors FIR No. 387/2001 Page 9 of 60 nied the suggestion that the Mazar was in the area of 3 bigha 16 bishwa. He was not aware of any demolition, if any, being done in the adjacent dwellings of the Khadims of Mazar. He also stated that he never visited inside the Mazar. He was not aware if any suit or injunction was filed in relation to the Mazar in the Court on 05.11.01. He denied the suggestion that on 08.11.01, the accused persons had told him about that the case and that he did not see anything on the spot. He voluntarily deposed that the accused persons were demolishing the wall and when he asked them to stop, they started a scuffle with him and the CPWD guards, thereafter, he called the po- lice over wireless. He also stated that the accused were demolishing the wall by their hands. The also stated that the police did not run over the deceased accused Maraiam. He was not aware whether any mechanical inspection of the gypsy was done by the IO or not. He denied the suggestion that in order to encroach upon the land of the Dargah, a false case was registered over the accused persons; that he was not present at the spot; that he was deposing falsely and that he did not see any accused persons on the spot.
11.PW-4 HC Sandeep was another police official who had sustained injuries in the present case. In the examination in chief, he deposed State v. Abdul Malik & Ors FIR No. 387/2001 Page 10 of 60 that on 08.11.2002, he was posted as Constable at PS Chanakya- puri. On that day, at around 7:30 AM, a message was received re- garding unauthorized construction made by the accused persons. He along with SHO went to the spot i.e. main security line, near Mazar, Dargah Paanch Peer. He saw that an unauthorised construc- tion was going on and he requested the accused persons to not in- dulge in the same. Thereafter, the accused persons started pelting stones and bricks on the police officials due to which he along with Ct. Surender, Ct. Rati Ram and Ct. Pradeep sustained injuries. Thereafter, PCR took the injured to the RML hospital for medical ex- amination. He correctly identified the accused persons Abdul Malik, Abdul Hamid and Abdul Ameen.
12.PW-4 was duly cross-examined by the Ld. Defence Counsel. Dur- ing the cross examination, PW-4 deposed that the message was re- ceived at 7.30 AM on 08.11.2001 as mentioned in his statement u/s 161 Cr.PC. After going through his statement Mark A, PW-4 de- posed that on 08.11.2001 his duty hour was from 8:00 AM to 8:00 PM. He denied the suggestion that that on 08.11.2001, he did not visit the spot. He further stated that DD entry regarding his departure was made by the concerned duty officer at the PS. On 08.11.2001 State v. Abdul Malik & Ors FIR No. 387/2001 Page 11 of 60 when he left the spot along with SHO, there were other police per- sonnels who had accompanied. They reached the spot at about 8.15 AM. He remained at the spot for about one hour. The distance be- tween the spot and RML hospital was about 7 to 8 KM. He reached the hospital at about 9.30 AM. He denied the suggestion that he did not receive any injury and for that matter he did not visit the RML hospital on 08.11.2001. He further stated that there was Majar at Dargah Panch Peer. He also stated that he had visited the Dargah prior to 08.11.2001 also as he was beat officer. He also stated that prior to 08.11.2001, he was aware that the said Dargah was inhabit- ed by the residents. He denied the suggestion that he was aware about the identity of the accused persons prior to 08.11.2001 and it was for that reason, he had identified the accused persons in the Court. He also stated that the police gypsy that got damaged was parked adjacent to the said dargah. He did not remember whether the gypsy could be seen in the photograph or not. He denied the suggestion that accused did not pelt any stone or no rioting took place; that no injury was sustained to him; that he never visited RML hospital and that he was deposing falsely at the behest of the then SHO Inspector Ramesh Chandra or the IO.
State v. Abdul Malik & Ors FIR No. 387/2001 Page 12 of 60
13.PW-5 HC Vijay Shankar deposed that on 08.11.2002, he was on picket duty. At about 7:30 AM, a message was received regarding unauthorised construction by the accused persons. Thereafter, he along with HC Mehta reached at the spot i.e. Main Security Line, near Mazar, Dargah, Paanch Peer. In the meantime, the SHO also reached at the spot. He further deposed that accused persons were demolishing the walls constructed by the CPWD. He requested the accused persons to not indulge in the same but the accused per- sons continued doing it. Thereafter, the accused persons started pelting stones and bricks on the police officials. Due to the stone pelting, Ct. J.P Dinkar, Ct. Sandeep, Ct. Surender and Ct. Rati Ram sustained injuries. The wireless set of the SHO was also damaged. Thereafter, SI Binay Kumar prepared rukka and got the present FIR registered. He correctly identified the accused Abdul Malik, Abdul Hamid, Abdul Ameen and Sitara Begum. He also identified the spot from the photograph.
14.PW-5 was duly cross-examined by the Ld. Counsel for the accused persons. During the cross examination, PW-5 deposed that he was not aware whether the accused and their predecessors were settled in the premise of dargah for around 200 years. He admitted that the State v. Abdul Malik & Ors FIR No. 387/2001 Page 13 of 60 accused persons belongs to same family but he was not aware as to whether they were living there as caretakers of the Dargah. He also stated that the police gypsy was parked on the service road. He also stated that there were around 7-8 police persons on the spot i.e. SI Vijay Kumar, Ct. Rohtas, Ct. Surender, Ct. Rati Ram, Ct. J.P. Dinkar, Ct. Babu Lal, Ct. Vijay, Ct Mohan Lal and some lady constables. He also deposed in his cross-examination that they tried to stop the ac- cused person from breaking the wall and when they did not stop, they were apprehended. He further stated that the accused persons were breaking the newly constructed wall with their hands. He de- nied the suggestion that the police personnels were beating one Sal- im and when Abdul Malik protested and inquired, the SHO had put the accused Abdul Malik in his gypsy; that when the two other broth- er of Abdul Malik came from their house to inquire, they were also put by the SHO in the gypsy; that there was no lady constables at the spot due to which the ladies were not picked up by the police; that when the ladies asked the SHO why he was taking the accused persons, then the SHO ran over his gypsy over those ladies due to which one Mariam died later on; that Abdul Malik informed the police that CPWD had unauthorizedly encroached upon the Dargah band State v. Abdul Malik & Ors FIR No. 387/2001 Page 14 of 60 and he had filed a case in that regard. He was not aware of any case filed by the accused persons in respect of the Dargah land. He denied the suggestion that he was deposing falsely that he did not see the demolished houses adjoining the dargah. He stated that he had seen the dargah prior to the incident also. There was some tin shed adjoining the dargah. He denied the suggestion that on 03.11.2001 the SHO in collusion with CSOI had demolished 5 huge rooms of approx. 15x13 ft(three room) and 12x15ft(2 rooms), one prayer hall (approx. 20x20 ft), one space for lunch/dinner(approx. 15x11 5ft); that CSOI had demolished the adjoining space of the dargah and built the wall in question and that he was deposing false- ly at the instance of CSOI and IO.
15.PW-6 HC J. P. Shankar deposed that on 08.11.2001, he was present at the police station. He was called by the SHO and he along with Ct. Surender, Sandeep, Ct. Rati Ram and lady police offi- cials went to Dargah, Vinay Marg in a gypsy. Public persons gath- ered there and some persons were breaking the government wall near the Mazar. Altercation took place between the police persons and public persons who were breaking the wall. Thereafter, the per- sons who were breaking the wall started pelting stones on the police State v. Abdul Malik & Ors FIR No. 387/2001 Page 15 of 60 party due to which PW-6 along with Ct. Surender, Ct. Rati Ram and Ct. Sandeep sustained injuries. They were taken to the RML Hospi- tal for treatment. He correctly identified male accused persons in the Court.
16.PW-6 was duly cross-examined by the Ld. Defence Counsel. Dur- ing the cross examination, PW-6 deposed after having gone through the statement under Section 161 Cr.PC, that he accompanied the police staff and the SHO concerned. The said statement is Mark PW-6 as the original record of statement u/s 161 Cr.P.C is not trace- able. He did not remember whether he stated in the statement under Section 161 Cr.PC that the other police officials also reached the spot as it was a matter pertaining to a year 2001. He also stated that he did not see his statement under Section 161 Cr.PC on the exam- ination in chief before deposing in the court. He further stated that he went to the spot in the police gypsy, however he did not remem- ber whether he had stated so in his statement under Section 161 Cr.PC. He further stated that he did not make any departure entry at the time of leaving the PS to reach the spot. He did not know whether any departure entry was made by his colleague or not. He stated that the number of gypsy in which they reached the spot was State v. Abdul Malik & Ors FIR No. 387/2001 Page 16 of 60 DL-1CF-3027. He further stated that the accused persons were breaking the wall with the help of dandas (wooden sticks) and sarias (iron rods). He did not remember the name of the police officials who reached the spot subsequently. He did not remember the name of the police official as to who asked the accused persons to stop breaking the wall. He did not remember who sustained what kind of injuries. He also stated that he remained at the spot for about 1 ½ to 2 hours. He further deposed that he reached the spot at about 8.00 AM. When he reached the spot, he found Ct. Mohan Lal, senior po- lice officials and the CPWD chowkidar. Again said, he remained at the spot for about 1 to 2 hours. His statement was not recorded at the spot. He did not remember as to when and where his statement was recorded. He also stated that there were public persons present at the spot however, he did not know the names and whereabouts of those persons. He denied the suggestion that he never visited the spot; that the accused persons were falsely implicated and that he was deposing falsely.
17.PW-7 HC Rohtas and PW-9 SI Surender deposed on similar lines as deposed by PW-6. They were duly cross-examined by the Ld. Defence Counsel.
State v. Abdul Malik & Ors FIR No. 387/2001 Page 17 of 60
18.PW-8 Ramesh Chander was the then SHO of PS Chanakyapuri. He deposed that on 08.11.2001, after receiving call, he along with Ct. Sandeep, Ct. Surender and Ct. Rohtas reached at Mazar, Vinay Marg. He identified all the accused persons in the Court. He stated that the accused persons were demolishing the wall made by the CPWD. When the police officials asked the accused persons not to demolish the wall, the accused persons started pelting stones on them. He further stated that the four police officials namely Ct. Rati Ram, Ct. Sandeep, Ct. Surender were injured in the incident and gypsy was also damaged. The accused persons were shouting that they would not allow the CPWD to construct the wall as the said place belonged to the accused persons. Thereafter, the accused persons were arrested and the injured were sent for medical treat- ment. He also correctly identified the spot in the photograph Ex.P4(Colly).
19.PW-8 was duly cross-examined by the accused persons. During the cross examination, he deposed that he did not remember the exact time as to when did he receive the call. He voluntarily deposed that it was in the early morning. It was duty officer who gave him the call. He did not remember whether he told to the IO that he went to the State v. Abdul Malik & Ors FIR No. 387/2001 Page 18 of 60 spot along with Ct. Sandeep, Ct. Surender, Ct. Rohtash and other staff. He did not remember whether he told to the IO that the SI Vijay Kumar was present at the spot. He also stated that whe wall in question was constructed around the Dargah on all the four sides. Again said, he did not remember whether it was on all the four sides or not. He voluntarily deposed that it might be on three or two sides. He did not remember the exact width of the wall in question or whether it was made up on one or two brick in width. He voluntarily deposed that it could be seen in the photographs. He further stated that when he reached the spot, the wall was partly demolished and they were still continuing demolition by their hands. He also stated that when he reached the spot, he found 4-5 police persons along- with 7-8 persons belonging to the family members of the accused and some CPWD officials. He also stated that there were no other public persons at the spot. He did not remember as to what injuries were sustained by Ct. Ratiram, Ct. Sandeep and Ct. Surrender. He voluntarily deposed that it could be seen from the medical records. He did not remember whether the aforesaid persons sustained in- juries in his presence or not. He did not remember as to how long he stayed at the spot. He did not remember the exact location of the State v. Abdul Malik & Ors FIR No. 387/2001 Page 19 of 60 accused persons as to whether they were present in front of the Dargah or back side. He further stated that the accused persons had pelted stones at gypsy. He voluntarily deposed that its damages could be seen from the mechanical inspection report. He stated that the mechanical inspection was not made in his presence. He volun- tarily deposed that it was the IO who got it prepared. He also stated that he was not aware then that the accused had filed a civil suit re- garding the land of Dargah. He did not know whether on 03.11.2001 any demolition was done at the Dargah with the help of the police officials of police station Chanakya Puri. He did not remember whether he told to the IO that the accused persons claimed owner- ship of the disputed wall while shouting. He did not remember the exact registration no. of gypsy. He voluntarily deposed that 3027 was its last digits. He did not remember whether he was part of the police officials who were instrumental in helping the demolition of structures near Dargah on 03.11.2001. He further stated that he was posted as Additional SHO as well as SHO for the period between November 1996 to 2003. He denied the suggestion that the present case was registered and the accused persons were falsely implicat- ed at his instance in order to ensure that the accused persons were State v. Abdul Malik & Ors FIR No. 387/2001 Page 20 of 60 unable to pursue their civil suit and that he was deposing falsely.
20.PW-9 SI Surendar deposed that on 08 11 2001, he was posted as HC PS Chanakya puri. On that day, he along with Ct Subhash were on picket duty on Simon Bolivar Marg from 7 am to 9 am. An infor- mation was received regarding quarrel at Mazar near Security Line, Vinay Marg upon which he along with Ct. Subahsh reached there, where they found the SHO PS Chanakya Puri along with police staff. The accused persons present in the Court (the male accused Abdul Malick Abdul Hamid, Abdul Amin were correctly identified by the wit- ness) alongwith some female members (whom he could identify) were demolishing the wall made by CPWD. He further stated that when they requested them not to demolish the wall, they started pelting stone. Due to pelting stones, four of police constables got in- jured. After great efforts, the accused persons were controlled. They had also damaged a police gypsy.
21.PW-9 was duly cross-examined by the Ld. Defence Counsel. Dur- ing the cross examination, he deposed that he did not remember whether any other person except, police personnels and accused persons were present on the spot on 08.11.2001. He denied the suggestion that because no offence was committed by the accused State v. Abdul Malik & Ors FIR No. 387/2001 Page 21 of 60 person, he was unable to depose regarding the presence of other persons. He did not remember the registration number of the police vehicle which was damaged in the incident. He stated that the left front mirror of the vehicle was damaged. Again said, he did not re- member the exact damages. He further stated that the accused were not arrested in his presence. He also stated that remained at the spot for about 1-1.5 hours. Thereafter, he alongwith Ct.Subhash Chand (PW-18) left for the police station. He further stated that IO recorded his statement u/s 161 Cr.PC Ex.PW9/D-1 at the police sta- tion. However, he did not know the time at which his statement was recorded by the IO. He denied the suggestion that no such state- ment was given to the IO; that the said statement was forged and fabricated document. He further stated that nothing was seized in his presence at the spot. However, a photographer whose identity was not known to him had taken the photos of the demolished wall and the gypsy. He did not know whether the said photographer was in the police or civil dress. He did not remember whether any inspec- tion of the police gpsy was done. He could not state the description of the wall which was demolished. He stated that the said wall was already built. He did not remember as to where and in which direc- State v. Abdul Malik & Ors FIR No. 387/2001 Page 22 of 60 tion to the dargah, the said wall was situated. He further stated that his senior officers told him that the said wall was constructed by CPWD. He admitted that he did not mentioned in his statement giv- en to the police that he came to know that the said wall was con- structed by CPWD through his senior officers. He denied the sug- gestion that his statement given before the court was unworthy of consideration as there was an improvement with respect to the aforesaid fact. He also stated that he had never visited the dargah before 08.11.2001. During further cross-examination, he admitted that he did not tell the IO while he was recording his statement u/s 161 Cr.P.C that he received an information regarding a quarrel at Mazaar near Security Line, Vinay Marg. (Statement u/s 161 Cr.P.C given by the witness to the IO is now exhibited as Ex.PW9/D-1). He denied the suggestion that his statement given before this court was not worthy of consideration as there were improvements/contradic- tions to the aforesaid fact. He admitted that he did not tell the IO while he was recording his statement u/s 161 Cr.PC that they re- quested the accused person to not to demolish the wall. He denied the suggestion that his statement given before this court was not worthy of consideration as there were improvements/contradictions State v. Abdul Malik & Ors FIR No. 387/2001 Page 23 of 60 to the aforesaid fact. He again stated that he informed the IO that they requested accused person not to demolish the wall. He was confronted with his statement given to the police where it was not so recorded).
22.During the cross-examination, PW-9 denied the suggestion that the statement Ex.PW9/D-1 was recorded without making any inquiry from him or that the same was written without his involvement. He stated that he received the information regarding the quarrel at Mazaar. He denied the suggestion that no such information was re- ceived. He did not remember from whom was the said information was received by him. He stated that he was having the wireless set. However, he did do not remember the details/particulars of the same because the matter pertained to the year 2001. He denied the sug- gestion that he did not give or furnish any particulars/details of the aforesaid wireless set to anyone because no such information was received by him. He also stated that no document pertaining to his picket duty on Simon Bolivar Marg was either furnished by him to the IO nor did the IO ask him to furnish the same at any point of time. He denied the suggestion that since he was not on the picket duty on 08.11.2001, no such document was either furnished by him State v. Abdul Malik & Ors FIR No. 387/2001 Page 24 of 60 or the IO had asked him to do so. When he reached the spot, there were about 8-10 accused person present. There were also police staff with SHO and two female police officials were also present there.
23.PW-10 ASI Ram Pratap deposed that on 08.11.2001, he was post- ed as HC at PS Chanakyapuri. On that day, he was on patrolling duty and he received a message to reach the spot i.e. Dargah. On the spot, he met the SHO along with other police officials. He stated that accused persons were demolishing the wall made by the CPWD. The accused persons were correctly identified by PW-10. When the police officials requested accused persons to stop, the accused persons started pelting stones due to which some police officials got injured and police gypsy was also damaged. PW-13 ASI Birender, PW-14 ASI Surender Singh and PW-15 ASI Babu Lal also deposed on similar lines. All these witnesses were duly cross-exam- ined by the Ld. Counsel for the accused persons.
24.PW-11 HC Roop Chand was the photographer who reached at the spot and found government gypsy and bricks. At the instruction of the IO, he took photographs of the spot Ex. P-4 (colly) (18 pho- tographs). The negative of the same were also filed on record Ex. Z- State v. Abdul Malik & Ors FIR No. 387/2001 Page 25 of 60 1 (colly). He was duly cross-examined by the Ld. Counsel for the accused persons.
25.PW-12 Sunil Garg, IG, Arunachal Pradesh proved the sanction u/s 195 Cr.PC Ex. PW-12/A. During the cross-examination, he deposed that he did not remember the date of incident. He stated that he was posted as Addl. DCP New Delhi District from 2001 to 2002. He did not remember the exact dates of posting. He also stated that without seeing the sanction order Ex.PW12/A, he could not tell under which sections the sanction was accorded. He further stated that he gave sanction Ex.PW12/A after perusing all the details of the case file put up by the concerned police station officer and investigating officer. He denied the suggestion that the sanction Ex.PW12/A was not ac- corded in a legal manner and without perusing the documents. He did not remember whether he visited the Dargah on 1st, 2nd and 3rd, Nov 2001. He denied the suggestion that the demolition of sur- rounding structure of Dargah took place on his instruction. He was not aware when the possession was handed over by L&DO to CSOI. He denied the suggestion that he gave sanction in the present under the influence of CSOI Officer.
26.PW-16 Ajay Kumar Pandit deposed that he was working in village State v. Abdul Malik & Ors FIR No. 387/2001 Page 26 of 60 as a farmer and he had came before the court as he had received summons from Delhi police regarding appearance before this court on 10.10.2018. In the year 2001, he was living in his village. He also stated that he had never gone out from the said village. He further stated that he did not have any knowledge regarding the present case as he never lived in Delhi.
27.Since, PW-16 turned hostile, he was cross examined by Ld. APP for the State with the permission of the Court during which he totally denied his statements recorded u/s 161 Cr.PC Mark-X. During the cross examination by Ld. APP for State, he denied the suggestion that he was deposing falsely today before the Court as he was won over by the accused to give evidence in his favour; that he had pressure/influence from accused persons to depose in their favour as they were local persons or they had threatened; that he was de- posing falsely at the instance of accused persons.
28.PW-17 Inspector Bijay Kumar is the investigating officer of the present case. In the examination in chief, he deposed that on 18.11.2001, he was posted as SI at PS Chanakyapuri. At about 7:50 AM, the Duty Officer handed over DD No. 3A dated 08.11.2011 re- garding quarrel and demolition of wall constructed by the CPWD at State v. Abdul Malik & Ors FIR No. 387/2001 Page 27 of 60 Panch Peer Mazar. Thereafter, he along with Ct. Sandeep reached at the spot. Some other police officials including the SHO reached at the spot. He saw that some portion of the wall was demolished. He also stated that the accused persons also started pelting stones on the police officials. 4-5 police officials including Ct. Sandeep and Ct. J.P Dinkar sustained injuries who were admitted in RML hospital. He prepared tehrir/rukka Ex. PW-17/A and got the present FIR regis- tered. The accused Abdul Malik, Abdul Amin and Abdul Hamid were arrested vide arrest memo Ex. PW-3/A, PW-3/B and Ex. PW-3/C. He also seized the bricks. He also conducted personal search of the accused Abdul Malik, Abdul Amin and Abdul Hamid vide memo Ex. PW-17/B, PW-17/C and Ex. PW-17/D. The accused persons were identified by him.
29.PW-17 was duly cross-examined by the Ld. Counsel for the ac- cused persons. In the cross-examination, he deposed that the case was registered on the DD entry No.3A of PS Chanakyapuri. He ad- mitted that as per the contents of the FIR Ex.PW2/A, he was the complainant in the present case. He denied the suggestion that the accused persons were falsely implicated in the present case on his instruction and that the complete investigation carried out by him State v. Abdul Malik & Ors FIR No. 387/2001 Page 28 of 60 was tainted and unfair because in the present case he was the complainant as well as the investigating officer. He admitted that there was an over writing on the date mentioned below his signature at point 'A' now Mark 'A-1' of the tehrir prepared by him Ex.PW17/A and that there was also an over writing on date and ravangi tehrir from time 'B' to 'B'. He denied the suggestion that the document Ex.PW17/A was false and fabricated only to falsely implicate the ac- cused in the present case and that the document Ex.PW17/A was forged for the purpose of creating a false incident against as alleged by the prosecution. He also stated that he did not make the phone call to the district photographer PW-11 for the purpose of clicking the pictures. He voluntarily deposed that the photographer was informed from PS to reach at the spot. He further stated that there was no document on record to show that PW-11 was called from the police station to reach at the spot. He denied the suggestion that no district photographer was called for the purpose of taking the pictures and the police staff had themselves taken the pictures of the place of oc- currence. He further stated that he had seized the case property vide seizure memo Ex.PW3/D at around 11.00 AM. He admitted that there was no timing recorded to this effect in the seizure memo State v. Abdul Malik & Ors FIR No. 387/2001 Page 29 of 60 Ex.PW3/D. He did not remember the exact number of 'eent and pathar' which he seized or were lying at the place of occurrence. He admitted that he did not mark the 'eent' and 'pathar 'for the purpose of its identification. He further stated that it took about around 20 minutes for him to seize the case property from the place of occur- rence. He did not remember the names of the police staff who helped him in collecting the said case property. He denied the sug- gestion that no seizure was carried out by him vide seizure memo Ex.PW3/D. He also stated that there was no public witness to the seizure proceeding as it was an instant call." He admitted that there was no document on record to show that the case property was de- posited by him at the malkhana of police station. He voluntarily de- posed that after depositing the case property in malkhana of the PS, the same was entered in the record of PS Rojnamcha. He admitted that during the course of investigation, he did not file on record any document pertaining to the police station rojnamcha which men- tioned that the case property was deposited in the malkhana of PS Chanakyapuri. He denied the suggestion that the document Ex.P- W3/D was a false document or that no case property was seized vide the same or that no case property was used by the accused State v. Abdul Malik & Ors FIR No. 387/2001 Page 30 of 60 persons as alleged by the prosecution. He did not remember whether any injured persons were bleeding. He voluntarily deposed that the injured persons were shifted immediately in the hospital for treatment. He denied the suggestion that no person was injured or that injured were not shifted to hospital for medical examination.
30.During further cross examination, PW-17 deposed that he recorded all the statements u/s 161 Cr.PC at the spot. He voluntarily deposed that he recorded statement of some witnesses at the spot and other witnesses at the police station after deposition of case property in Malkhana. He admitted that he did not mention the aforesaid fact in his examination in chief. He also stated that the inspection of the vehicle was got conducted at the spot. He further stated that the concerned mechanical inspector/PW-19 who inspected the police vehicle was examined by him at the spot. He denied the suggestion that no such inspection was carried out or that the inspection report prepared by the mechanical inspector was prepared on his instruc- tion and that no damage was sustained by the police gypsy. He ad- mitted that he did not obtain the finger prints of any of the accused from them in respect to the seized case property. He also stated that he did not send the seized case property for obtaining the FSL re- State v. Abdul Malik & Ors FIR No. 387/2001 Page 31 of 60 port and that he did not arrest the female accused persons of this case. He further stated that he did not know that all the men primari- ly accused Abdul Malik was doing the pairvi in the civil suit filed by the accused persons against the various Government department before the registration of the FIR. He did not know whether there was any pending civil dispute between the parties prior to lodging of FIR. He also stated that he did not preserve/seize any piece of evi- dence to show that the police party sustained injury. He denied the suggestion that no police party had sustained any injuries. He fur- ther stated that the construction of the disputed wall was in process. He also stated that there was no worker available at the spot. He did not remember as to what time, he had remained at the spot. He de- nied the suggestion that workers/labourers were present at the spot as the construction work was going on. He admitted that there was no document placed on record showing that the wall was owned by CPWD or that the wall was constructed by CPWD. He further stated that he did not visit the spot before lodging of FIR. He did not re- member the location where the disputed wall was situated in relation to the Dargah Panch Peer. He denied the suggestion that the docu- ment exhibited as PW17/A was wrongly prepared by him on State v. Abdul Malik & Ors FIR No. 387/2001 Page 32 of 60 02.11.2001 and that documents Ex. PW17/A was prepared on 02.11.2001. He did not know whether a demolition had taken place at the places adjacent to Dargah with the help of police party. He did know what was the exact area at which the Dargah was spread. He did not know whether the demolition was carried out with the help of police official including the officials deployed at PS Chankyapuri on 03.11.2001. He did not remember as to where he was deployed on 03.11.2001. He denied the suggestion that he was deposing falsely and that he did not investigate the matter properly or that it was tainted as he was the complainant in this case.
31.PW-18 ASI Subhash Chand deposed that on 08.11.2001 he was posted at PS Chankyapuri as Constable. On that day, his duty was at Simon Oliver Marg Picket. At around 07:45 pm, he received a wireless message to reach with staff at Dargah main security police line, Vinay Marg. Thereafter he alongwith the HC Surender reached there, where SHO alongwith the other police staff were present. Ac- cused Abdul Malik alongwith other accused persons and four-five females were trying to demolish the CPWD wall constructed outside at Dargah. They tried to stop them but they did not stop and started pelting stones on the police party. Some of the police official got in- State v. Abdul Malik & Ors FIR No. 387/2001 Page 33 of 60 jured due to the said stone pelting. Thereafter, they apprehended them and brought them to the PS. PW-18 correctly identified ac- cused Abdul Malik, Abdul Hamir, Sitara Begum, Praveen and Shehnaz in the Court but failed to identify other two accused per- sons.
32.PW-18 was due cross-examined by the Ld. Defence Counsel. Dur- ing the cross examination, he deposed that he was posted at PS Chanakyapuri in the starting of the year 2001. He stated that on 3.11.2001 he was posted at PS Chanakyapuri. However, he could not recollect his beat on 03.11.2001. He further stated that he never visited the Dargah premises before 08.11.2001. He could not tell the area over which the said Dargah was situated. He could not tell the dimension, specifically the height of the wall which the accused per- sons were allegedly demolishing. He did not have any document to show that he was doing his duty at Simon Olivar Marg Picket on 08.11.2001. His statement u/s 161 Cr.P.C was recorded by Sl Vijay at the Dargah. He denied the suggestion that his statement u/s 161 Cr.P.C was written by the IO at the instructions of the senior police official. He did not know whether the residential units adjacent to the Dargah were being demolished by the government authority from State v. Abdul Malik & Ors FIR No. 387/2001 Page 34 of 60 03.11.2001 to 08.11.2001. He further stated that Ct. Surender, Ct. Mohan lal, Ct. Babul Lal, Ct. Vijay Singh, Ct. J.P. Dinkar, S! Vijay and SHO and some other police staffs (whose name he did not re- member) were present at the spot. He did not remember whether the wall that the accused persons were allegedly demolishing was situated on North or South or East or West of the Dargah. He also stated that the IO informed him that the wall belonged to the CPWD otherwise he had no knowledge about the same. He did not know the ownership of the land over which the said wall was situated. He denied the suggestion that he was deposing at the behest of his se- nior police officials and the I/O, that all the proceedings were con- ducted by the IO in the PS; that he never visited the spot on the date of incident; that he was deposing falsely at the instance of the com- plainant and IO and that he was deposing falsely.
33.PW-19 Sh. Tasnim Uddin Siddiqui is the mechanical inspector who conducted the mechanical inspection of the police gypsy. During the examination in chief, he deposed that he was a government ap- proved surveyor and loss assessor and working for more than 42 years independently. On 11.01.2001, on the instructions of IO he in- spected Maruti Gypsy (Delhi Police) bearing registration no DL-1CF State v. Abdul Malik & Ors FIR No. 387/2001 Page 35 of 60 3027. He submitted his detailed report Ex.PW19/A. During his in- spection, he found the following damages as mentioned in his report i.e. 1. Front bonnet dented/damaged 2. left side rear body panel damaged 3. left side down body damage 4. rear hood tripal dam- aged. The vehicle was found fit for road.
34.PW-19 was duly cross-examined by the Ld. Defence Counsel. Dur- ing the cross examination, he deposed that he had given his state- ment before the Court after perusing the court file which contained the inspection report. He further stated that he had inspected the vehicle in PS Chanakyapuri, New Delhi. He denied the suggestion that he prepared the report as per the instruction of the IO and other senior police officials and that there were contradiction in the con- tents of the damages in his chief and the motor inspection report Ex.PW19/A. He further stated that he did not do any inspection of this police gypsy no DL1CF3027 prior to dated mentioned on the in- spection report dt. 08.11.2001. He also stated that he had opined about the damages on the basis of his 14 years experience. He did not admit or deny if the dent or damages mentioned in document Ex.Pw19/A were caused by the police officials. He denied the sug- gestion that he was deposing falsely at the behest of the IO or at the State v. Abdul Malik & Ors FIR No. 387/2001 Page 36 of 60 instruction of the government officers.
35.PW-20 Retired HC Mehtab Singh deposed that on 08.11.2001, he was posted at PS Chanakyapuri as Head Constable. On that day, he was performing his duty at 9-1, Railway Pickets, Sarojini Nagar. On that day, his duty hours from 8:00 PM to 8:00 AM (i.e. from the night of 07.11.2001 to 08.11.2001). At about 7:45 AM, he received one message on wireless set and he was asked to reach at Dargah Panch Peer, Vinay Marg, Near Security Line, Chanakyapuri. He along with Ct. Vijay Snankar reached at the spot. At the spot, SHO Chanakyapuri along with his staff had already been present. The accused persons were also present at the spot and they were hav- ing a quarrel with chowkidaar/guard present at the wall of CPWD. He further stated that the wall might have belonged to CPWD. SHO tried to pacify the accused persons, however, they did not listen and started pelting stones at the police officials. Many police officials got injured. One Government vehicle i.e. gypsy also got damaged in the stone pelting.
36.In response to a leading question, PW-20 admitted that the ac- cused persons were demolishing the wall of CPWD and they at- tacked the police party when they were asked to stop the same. He State v. Abdul Malik & Ors FIR No. 387/2001 Page 37 of 60 correctly identified the accused persons present in the court.
37.PW-20 was duly cross-examined by the Ld. Defence Counsel. Dur- ing the cross-examination, he deposed that he remained posted at PS Chanakyapuri for about 3-4 years. He further stated that he reached at the spot in about 5 minutes after receiving the wireless call at about 7.45 AM. He also stated that the wall in question was about 6-8 feet. He could not comment about the exact length of the wall, however, it covered the Dargah Panch Peer from all four sides. Again said, it was covered from three sides. Again said, the passage to gali was opened. He could not say what was the area covered by the Dargah within the four wails. He also stated that the wall in ques- tion was not being constructed. He further stated that the wall in question was situated at the South direction. The chowkidaar present at the spot told him that the wall in question belonged to CPWD. He could not say anything regarding the ownership of the land over which the said wall was situated. He further stated that there were about 2-3 chowkidaar/guards of CPWD present at the spot. He also stated that none of the chowkidaars sustained injuries. He admitted that he did not mention in his statement recorded u/s 161 Cr.PC Ex.PW20/A regarding the quarrel with chowkidaars. He State v. Abdul Malik & Ors FIR No. 387/2001 Page 38 of 60 denied the suggestion that he was present at the spot when the po- lice were demolishing the adjacent properties of the Dargah Panch Peer. He did not know area of the land over which the Dargah and other adjacent buildings were situated. He could not comment as to where he was posted / working on 03.11.2001. He denied the sug- gestion that property adjacent to the Dargah was being demolished at the behest of the senior government officers under the police pro- tection provided by the police station Chanakyapuri. He denied the suggestion that he was deposing falsely. He did not remember the registration number of the government vehicle i.e. gypsy which got damaged. He also stated that the wireless system of the gypsy was damaged by pulling it from the area where it was installed. He admit- ted that he did not mention that the wireless system of the gypsy was damaged by pulling it off by the accused persons in his state- ment recorded u/s 161 Cr.P.C Ex.PW20/A. He voluntarily deposed that he had mentioned that gypsy was damaged. He denied the suggestion that he did not reach to the spot along with Ct. Vijay Shankar; that he had already been present at the spot; that he did not receive any wireless message; that no guards/chowkidaar of CPWD were present at the spot; that no police officials sustained in- State v. Abdul Malik & Ors FIR No. 387/2001 Page 39 of 60 jury in the incident; that no stone pelting was done at the spot and that the wall in question was being constructed when he reached at the spot on 08 11.2001. He voluntarily deposed that it was already erected. He denied the suggestion that he was deposing at the be- hest of the IO; that he was not disclosing the truth being an official witness.
STATEMENT OF ACCUSED PERSONS
38.After examination of all prosecution witnesses, the prosecution evi- dence was closed. Thereafter, statements of accused persons were recorded u/s 313 Code of Criminal Procedure, 1973 ("Cr.P.C") wherein all the incriminating circumstances were put to them which they denied and took defence that they were falsely implicated in the present case by the police officials. They further stated that the case was falsely instituted against them as counter blast to the civil suit filed against CSOI, DDA, L&DO and Delhi Police and to prevent them from prosecuting a civil suit against the CSOI, DDA, L&DO and Delhi Police which was filed prior to the alleged incident and the summons to the same were already served upon the Delhi Police and other defendants in the civil suit prior to the alleged incident. State v. Abdul Malik & Ors FIR No. 387/2001 Page 40 of 60 DEFENCE EVIDENCE
39.The accused persons also chose to lead defence evidence (DE). In their defence, the accused Abdul Malik examined himself as DW-1. In the examination in chief, he deposed that they had filed a civil suit bearing no. 379/2001 against various government authorities includ- ing SHO PS Chanakyapuri before the court of Ld. Sr. Civil Judge, Tis Hazari Courts, Delhi, in respect of their land on which the Dar- gah is situated. Summons to the defendants in the said suit were is- sued on 05.11.2001 itself and the next date was 07.11.2001. Sum- mons in the said suit was served upon all the defendants including SHO PS Chankyapuri on 06.11.2001. He further stated that the present FIR was counter-blast to the said civil suit. Certified copy of the suit along with list of document is Ex.DW1/1 (Colly). Certified copy of the order dated 05.11.2001 as well as 07.11.2001 is Ex.D- W1/2 (Colly). Certified copy of the processes served upon the de- fendants in the said suit including SHO PS Chanakyapuri is Ex.D- W1/3 (Colly).
40.DW-1 was duly cross examined by Ld. APP. In the cross-examina- tion, he deposed that the said civil suit was filed in respect of Dargah Paanch Peer, Chanakya Puri, Vinay Marg Behind Football ground, State v. Abdul Malik & Ors FIR No. 387/2001 Page 41 of 60 Delhi. He also stated that when they filed the said civil suit against the demolition action by the defendants in the said civil suit, the present FIR was lodged against them to prevent them from prose- cuting the said suit. He admitted that the said civil suit was still pend- ing before concerned civil court. He again said that the abovestat- ed civil suit was already dismissed. He could not tell the exact rea- son of dismissal. He, however, stated that it might be because of collusion between all the defendants including the IAS lobby.
41.Thereafter, the defence evidence was closed and the matter was fixed for hearing of final arguments.
FINAL ARGUMENTS
42.During the final arguments, the Ld. APP urged that testimonies of all the eye witnesses of the present case have remained unchal- lenged in the cross-examination and there is no reason to doubt their testimonies. It was further argued that the testimonies of the eye witnesses could also be corroborated from the medical evidence of the injured persons and testimony of the IO. It was also contend- ed that even the accused did not dispute their presence at the spot at the time of the incident.
State v. Abdul Malik & Ors FIR No. 387/2001 Page 42 of 60
43.On the other hand, Ld. Counsel for the accused persons argued all the eye witnesses examined by the prosecution in the present case were the police witnesses. The accused persons cannot be convict- ed solely on the basis of the testimonies of the police witnesses as all of them were interested witnesses. No independent eye witness- es were examined by the prosecution. It was also argued that the accused persons were falsely implicated in the present case due to a land dispute pending between the accused persons and CSOI. It was also argued that the investigation was also compromised in the present case as both the complainant and the investigating officer was the same person. It was further argued that female accused persons were not identified by many of the eye witnesses. It was also submitted that the complaint u/s 195 Cr.P.C was also given by the concerned Add. DCP without any application of mind which could be seen from the fact that he was not even aware about the facts of the case in his testimony. It was also submitted that no de- parture or arrival entries of the police officials and SHO were proved on record by the prosecution which could prove that they were on duty at the time of the alleged incident. It was further argued that the MLCs of the injured persons were not properly proved on record by State v. Abdul Malik & Ors FIR No. 387/2001 Page 43 of 60 the prosecution. Therefore, benefit of doubts should be extended to the accused persons as the prosecution failed to prove their guilt beyond reasonable doubts.
44.I have heard the Ld. APP and Ld. defence counsel and have pe- rused the case file.
45.Before, discussing the testimonies of PWs, it would be prudent to discuss the legal position involved in the present case.
LEGAL PROVISIONS INVOLVED
46.Section 186 provides for the offence of obstructing public servant in discharge of public functions. It reads as under:
"Whoever voluntarily obstructs any public ser- vant 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."
47.A bare reading of the above provision clearly shows that the said offence is committed only when the public servant is obstructed in the discharge of his public functions "voluntarily". The term "voluntar- ily" is defined u/s 39 IPC as "a person is said to cause an effect "vol- State v. Abdul Malik & Ors FIR No. 387/2001 Page 44 of 60 untarily" when he causes it by means whereby he intended to cause it, or by means which, at the time of employing those means, he knew or had reason to believe to be likely to cause it."
48.Section 353 IPC provides for the offence for assaulting or using criminal force to deter public servant from discharging of his duty. It reads as under:
"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 conse- quence of anything done or attempted to be done by such person in the lawful discharge of his duty as such public servant, shall be pun- ished with imprisonment of either description for a term which may extend to two years, or with fine, or with both."
49.Section 332 IPC provides for the offence of voluntarily causing hurt to a public person while discharging his official duty. It reads as un- der:
"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 pub- lic 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 ser- State v. Abdul Malik & Ors FIR No. 387/2001 Page 45 of 60 vant, shall be punished with imprisonment of ei- ther description for a term which may extend to three years, or with fine, or with both."
50.Hence, in order to prove the guilt of an accused charged for the of- fence punishable u/s 186/332/353 IPC, it is imperative for the prose- cution to prove that the said obstruction/assault/hurt is caused by the accused with the intention of causing obstruction/assault/hurt to a public servant or with knowledge that the obstruction/assault/hurt will be caused to a public servant. Thus, it is important that the ac- cused must have the knowledge or reason to believe that the person to whom the obstruction/assault/hurt is being caused is a "public servant".
FINDINGS
51.As per the case of prosecution, the accused persons obstructed the police officials of PS Chanakyapuri including the then SHO from dis- charging their public function (who had gone to the spot after receiv- ing information regarding demolition of wall by the CPWD) and pelt- ed stones upon the police officials due to which some police officials sustained injuries and police gypsy and wireless set got damaged. They also demolished the wall constructed by the CPWD. Hence, the accused persons have been charged for the offences punishable State v. Abdul Malik & Ors FIR No. 387/2001 Page 46 of 60 u/s 147, 148, 186, 353 & 332 IPC and section 3 of Prevention of Damage to Public Property Act, 1984.
52.After perusing the testimonies of the prosecution witnesses and other evidence brought on record by the prosecution, I find that the prosecution has failed to prove the guilt of the accused persons be- yond reasonable doubts in the present case.
53.First and foremost, it should be noted that almost all the eye wit- nesses examined by the prosecution were the police officials. The only public eye witness i.e. guard of CPWD (Ajay Kumar Pandit PW-16) who was examined by the prosecution turned completely hostile and did not support the case of the prosecution. No explana- tion was given by the prosecution regarding non examination of in- dependent public persons who were present at the spot at the time of the alleged incident.
54.Surprisingly, all the PWs did not explain the reason as to why public witnesses were not examined during the course of investigation. Neither the details of those public persons were brought on record nor any legal action was taken against those persons under relevant sections of law who had declined to assist the police in investigation. State v. Abdul Malik & Ors FIR No. 387/2001 Page 47 of 60 If the public persons were really present at the spot, then the police officials should have made endeavor to get them join the investiga- tion. They should have issued notice asking them to join the investi- gation. On their refusal, necessary action as per law could have been taken against them.
55.The failure on the part of the police personnel could only suggest that they were not interested in joining the public persons in the po- lice proceedings. Failure on the part of the police officials to make sincere effort to join public witnesses for the proceedings when they may be available creates reasonable doubt in the prosecution story. Reference can be taken from the decision of Anoop Joshi Vs. State 1992 (2) C.C. Cases 314 (HC), Hon'ble High Court of Delhi has observed as under:
"It is repeatedly laid down by this Court that in such cases it should be shown by the police that sincere efforts have been made to join in- dependent witnesses. In the present case, it is evident that no such sincere efforts have been made, particularly when we find that shops were open and one or two shop keepers could have been persuaded to join the raiding party to witness the recovery being made from the ap- pellant. In case any of the shopkeepers had declined to join the raiding party, the police could have later on taken legal action against such shopkeepers because they could not have State v. Abdul Malik & Ors FIR No. 387/2001 Page 48 of 60 escaped the rigours of law while declining to perform their legal duty to assist the police in investigation as a citizen, which is an offence under the IPC."
56.While the testimony of the police officials cannot be discarded away merely because of the fact that no public witnesses were not exam- ined, however, their testimonies have to be scrutinised in more de- tail. If it is found the police officials during the course of investigation did not even make endeavour to ask the public witnesses to join the investigation, did not even ask their names and details etc. then it would cast a very serious doubt on the testimonies of the police offi- cials. At this stage, reference can be taken from the decision of the Hon'ble Supreme Court in the case of Tahir v. State (Delhi) [(1996) 3 SCC 338], dealing with a similar question, the Hon'ble Apex Court held interalia the following:
"In our opinion no infirmity attaches to the tes- timony of the police officials, merely because they belong to the police force and there is no rule of law or evidence which lays down that conviction cannot be recorded on the evidence of the police officials, if found reliable, unless corroborated by some independent evidence. The Rule of Prudence, however, only requires a more careful scrutiny of their evidence, since they can be said to be interested in the result of the case projected by them. Where the evi- dence of the police officials, after careful scru- tiny, inspires confidence and is found to be State v. Abdul Malik & Ors FIR No. 387/2001 Page 49 of 60 trustworthy and reliable, it can form basis of conviction and the absence of some indepen- dent witness of the locality to lend corroboration to their evidence, does not in any way affect the creditworthiness of the prosecution case. The obvious result of the above discussion is that the statement of a police officer can be relied upon and even form the basis of conviction when it is reliable, trustworthy and preferably corroborated by other evidence on record."
57.The requirement of the police officials to make endeavour to ask the public witnesses to join the proceedings was discussed by the Hon'ble Supreme Court in the case of Sahib Singh vs. State of Punjab AIR 1997 SC 2417, wherein it interalia held the following:
"In a given case it may so happen that no such person is available or, even if available, is not willing to be a party to such search. It may also be that after joining the search, such persons later on turn hostile. In any of these eventuali- ties the evidence of the police officers who con- ducted the search cannot be disbelieved solely on the ground that no independent and re- spectable witness was examined to prove the search but if it is found -as in the present case - that no attempt was even made by the con- cerned police officer to join with him some per- sons of the locality who were admittedly avail- able to witness the recovery, it would affect the weight of evidence of the Police Officer, though not its admissibility"
58.Therefore, in view of the above mentioned case law, it becomes clear that while the testimony of the police officials cannot be dis- State v. Abdul Malik & Ors FIR No. 387/2001 Page 50 of 60 carded away forthwith in the absence of any public witnesses, how- ever, it would be prudent to examine or scrutinise their testimonies more closely and should preferably be corroborated. Accused may be convicted on the basis of the testimonies of the police officials if their testimonies are found to be reliable and trustworthy.
59.As discussed in the preceding paragraphs of this judgment, IO did not even make any endeavor to join the public witnesses. He did not give any notice in writing to the public persons to join the proceed- ings. This would become all the more important in light of the fact that the spot where the alleged incident happened was a public place i.e. Dargah where many public persons must have been present.
60.Further, the prosecution did not tender in evidence necessary DD entries to prove departure and arrival of the police officials from / at the police station. At this stage, reference can be taken from the provision enshrined in 22 rule 49 of the Punjab Police Rules, which is reproduced as under;
"Chapter 22 rule 49 Matters to be entered in Register no. II. The following matters shall amongst others, be entered:-(c) The hour of ar- rival and departure on duty at or from a police State v. Abdul Malik & Ors FIR No. 387/2001 Page 51 of 60 station of all enrolled police officers of whatever rank, whether posted at the police station or elsewhere, with a statement of the nature of their duty. This entry shall be made immediately on arrival or prior to the departure of the officer concerned and shall be attested by the latter personally by signature or seal. Note:- The term Police Station will include all places such as Police Lines and Police Posts where Regis- ter No. II is maintained.
61.Perusal of the above rule clearly suggests that the police officials are mandated to record their time of arrival and departure on duty at or from the police station. In the instant case, this provision has not been complied by the concerned police witnesses. The relevant en- tries regarding the departure of the police officials from the police station or their arrival at the police have not been tendered in evi- dence i.e. proved on record. It has been held in Rattan Lal Vs. State 1987 (2) Crimes 29 the Hon'ble Delhi High Court held that;
"if the investigating agency deliberately ignores to comply with the provisions of the Act the Courts will have to approach their action with reservations. The matter has to be viewed with suspicion if the provisions of law are not strictly complied with and the least that can be said is that it is so done with an oblique motive. This failure to bring on record, the DD entries cre- ates a reasonable doubt in the prosecution ver- sion and attributes oblique motive on the part of the prosecution."
62.In the instant case, as per the materials on record, many police offi- State v. Abdul Malik & Ors FIR No. 387/2001 Page 52 of 60 cials including the beat constables, Head Constables, Sub Inspector, SHO etc. went to the spot after receiving the information regarding demolishing of wall by the accused persons. However, no departure entry or arrival entry of even single police official was proved on record by the prosecution. Even their duty roster (showing that these police officials were on duty) was not proved on record by the pros- ecution.
63.Secondly, the failure of the investigating agency to include the in- dependent public witnesses during the investigation would become all the more relevant in light of the fact that the complainant and the investigating officer was the same person in the present case. This would raise a serious doubt on the fairness of the investigation.
64.Perusal of the record would show that the present FIR was regis- tered on the basis of rukka prepared by Sub Inspector Bijay Kumar (who has been examined by the prosecution as PW-17). Almost the entire investigation was conducted by SI Bijay Kumar only. He had arrested the accused persons, conducted their personal search, seized the articles, recorded the statement of the witnesses u/s 161 Cr.P.C.
State v. Abdul Malik & Ors FIR No. 387/2001 Page 53 of 60
65.Moreover, interestingly, the then SHO PS Chanakyapuri who was also an eye witness of the present case and was examined by the prosecution as prosecution witness PW-8 had filed the charge-sheet in the present case in the Court after the completion of the investiga- tion. This fact could be inferred from the statement made by PW-8 in his cross-examination that he was Additional SHO and SHO at PS Chanakyapuri between 1996 and 2003. It would case serious doubts on the fairness of the investigation.
66.The issue of complainant and investigating officer being the same person has been discussed in detail by the Hon'ble Supreme Court in the case of Mohan Lal vs. State of Punjab (2018) 17 SCC 627. Relevant extract of the judgment is reproduced below:
"In a criminal prosecution, there is an obligation cast on the investigator not only to be fair, judi- cious and just during the investigation, but that the investigation on the very face of it must ap- pear to be so, eschewing conduct or impression which give rise to a real and genuine apprehen- sion in the mind of an accused and not mere fanciful, that the investigation was not fair. In these circumstances, if an informant police official in criminal prosecution, especially when carrying a reverse burden of proof, makes the allegations, is himself asked to investigate, serious doubts will naturally arise with regard to the fairness and impar- tiality. It is not necessary that bias must ac- State v. Abdul Malik & Ors FIR No. 387/2001 Page 54 of 60 tually be proved. It would be logical to pre- sume and contrary to normal human con- duct, that he would himself at the end of the investigation submit closure report to con- clude false implication with all its attendant consequences for the complainant himself. The result of the investigation would there- fore be a foregone conclusion.
XXXXXXXX In view of the conflicting opinions expressed by different two judge bench of this court, the im- portance of a fair investigation from the point of view of an accused as a guaranteed constitu- tional right under Article 21 of the Constitution of India, it is considered necessary that the law in this regard be laid down with certainty. To leave the matter for being determined on the individual facts of a case, may not only lead to a possible abuse of power, but more im- portantly will leave the police, the accused, the lawyer and the courts in a state of uncer- tainty and confusion which has to be avoid- ed. It is therefore held that a fair investiga- tion, which is but the very foundation of a fair trial, necessarily postulates that the in- formant and the investigator must not be the same person. Justice must not only be done, but must appear to be done also. Any possibility of bias or a predetermined conclusion as to be excluded. This requirement is all the more im- perative in laws carrying a reverse burden of proof."
67.Further, the Hon'ble Delhi High Court in the case of Vikash Kumar vs. State of NCT of Delhi Crl. M.C. 4891/2024, while dealing with the similar situation involving an FIR registered for the offence under State v. Abdul Malik & Ors FIR No. 387/2001 Page 55 of 60 section 3 of the Delhi Prevention of Defacement of Public Property Act, 2007, has held that the the complainant and the Investigating Officer cannot be the same person. The Hon'ble reiterated the ratio held by the Hon'ble Supreme Court in the Mohan Lal case.
68.The Hon'ble Delhi High Court Court observed that emphasized that a fair trial, a constitutional guarantee under Article 21, would be a hollow promise if the investigation was not fair or raises serious questions about its fairness.
69.The Hon'ble Court further noted that if an informant police official in a criminal prosecution makes the allegations and is himself asked to investigate, serious doubts will naturally arise regarding his fairness and impartiality. It further noted that it is not necessary that bias must actually be proved, and it would be illogical to presume that the officer would himself submit a closure report to conclude false impli- cation.
70.It was also held that a fair investigation, which is the very founda- tion of a fair trial, necessarily postulates that the informant and the investigator must not be the same person to exclude any possibility of bias or a predetermined conclusion. The decision reaffirms the State v. Abdul Malik & Ors FIR No. 387/2001 Page 56 of 60 importance of fair investigation as a fundamental right under Article 21 of the Constitution and sets a precedent to ensure justice is not only done but also appears to be done in criminal proceedings.
71.The present case involves a very unique situation where the com- plainant, eye witnesses, victims, investigating officer and forwarding officer are the police officials. They all have been examined by the prosecution as eye witnesses of the incident. SHO who is also an eye witness of the present case has also filed the charge-sheet i.e. is also involved in the investigation. The complainant who has pre- pared rukka and got the present FIR registered (who is also an eye witness of the present case) has conducted the entire investigation under the supervision of the same SHO is also an eye witness and victim of the present case (as his gypsy was allegedly damaged). It would be very difficult to understand as to why the entire investiga- tion was not conducted by the police officials who were not related to the present case and were not preferably working under the su- pervision of the then SHO PS Chanakyapuri. The fairness of the in- vestigation was severely compromised. No explanation was provid- ed by the prosecution on this aspect.
72.Thirdly, it should be noted that as per the case of the prosecution, State v. Abdul Malik & Ors FIR No. 387/2001 Page 57 of 60 the accused persons were demolishing a wall constructed by the CPWD. Thus, official of CPWD should have been examined to prove on record the fact that it was CPWD who was constructing the said wall which was allegedly demolished by the accused persons. Sur- prisingly, not even a single official from CPWD was examined by the prosecution. The security guard of the CPWD turned hostile in his examination and did not support the case of the prosecution. Thus, it cannot be proved by the prosecution beyond reasonable doubts that the CPWD had constructed the said wall which was allegedly demol- ished by the accused persons.
73.Fourthly, there are many other loopholes in the investigation. The wireless set which was allegedly damaged by the accused persons was never produced in the Court. The MLCs of the injured persons were not properly proved on record by the prosecution as the con- cerned doctors were never examined. The weapons used during the commission of the offence i.e. bricks etc. were not properly seized by the investigating agency. There are also certain contradictions in the testimonies of the eye witnesses regarding the weapons used during the commission of the alleged offence. Some of the eye wit- nesses stated that the accused persons were demolishing the wall State v. Abdul Malik & Ors FIR No. 387/2001 Page 58 of 60 by their hand while other witness stated that they were demolishing with iron rod. All the security guards of the CPWD were not exam- ined. No explanation could be provided by the IO regarding overwrit- ing made in the rukka. Not even a single lady police official was ex- amined by the prosecution.
FINAL ORDER
74.In the recent judgment passed in the case of Surendra Koli vs. State of Uttar Pradesh 2025 INSC 1308, the Hon'ble Supreme Court has reiterated the fundamental principle of the criminal ju- risprudence that the criminal law does not permit conviction on con- jectures or grave suspicions. Relevant extract of the judgment is re- produced below:
"It is a matter of deep regret that despite prolonged investigation, the identity of the actual perpetrator has not been established in a manner that meets the legal standards. Criminal law does not permit conviction on conjecture or on a hunch. Suspicion, however grave, cannot replace proof beyond reasonable doubt. Courts cannot prefer expediency over legality. The presumption of innocence endures until guilt is proved through admissible and reliable evidence, and when the proof fails the only lawful outcome is to set aside the conviction even in a case involving horrific crimes."
State v. Abdul Malik & Ors FIR No. 387/2001 Page 59 of 60
75.In the instant case, although, there are grave suspicions against the accused persons, however, the prosecution failed to prove their guilt beyond reasonable doubts. There are serious doubts over the fair- ness and independence of the investigation.
76.Therefore, in view of the above discussions and findings, I find that the prosecution has failed to prove the guilt of the accused persons beyond reasonable doubts. Thus, benefit of doubts is extended to the accused persons.
77.Accordingly, the accused persons namely Adbul Malik, Abdul Amin, Abdul Hamid, Satara Begum, Tanvir Begum, Parveen and Sehnaj are acquitted for the offence punishable u/s 147, 148, 186, 353 & 332 IPC and section 3 of Prevention of Damage to Digitally signed Public Property Act, 1984. by ANIMESH ANIMESH KUMAR KUMAR Date:
2026.02.07 18:18:29 +0530 Announced in the open court (Animesh Kumar) on 07.02.2026. JMFC-02/PHC/New Delhi It is certified that this judgment contain 60 pages and each page bears my signatures. Digitally signed by ANIMESH ANIMESH KUMAR KUMAR Date: 2026.02.07 18:18:34 +0530 (Animesh Kumar) JMFC-02/PHC/New Delhi 07.02.2026 State v. Abdul Malik & Ors FIR No. 387/2001 Page 60 of 60