Delhi District Court
State vs . Nawabuddin & Others on 25 May, 2010
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IN THE COURT OF SH. PRITAM SINGH
METROPOLITAN MAGISTRATE/ NEW DELHI.
State Vs. Nawabuddin & others
FIR No: 62/97
U/s: : 451/427 IPC
P.S. : TUGLAK ROAD
JUDGEMENT
1. Sl. No. of the case :469/2
2. Date of commission of offence :07.03.1997
3. Name of the complainant :Sh. Dharambir Sharma,
Superintendent
Archaeological Survey of
India, Safdarjung Tomb,
New Delhi
4. Name of accused :(1) Saleem Javed S/o Sh.
Mohd. Sadiq R/o House No.
221, Gali No. 11, 66 Futa
Road, Jafrabad, Delhi
(2) Mujaffar Rahim S/o Sh.
Nanhe Khan R/o D-436,
Lakshmi Garden, Raja Bagh
(UP)
(3) Maulana Nawabuddin
S/o Sh. Faiyazudin R/o
Public Relation Office, Jama
Masjid, Delhi
5. Offence complained off: :U/s 451/427 IPC
6. Plea of the accused :pleaded not guilty
2
7. Final arguments heard :22.05.2010
8. Final Order :Accused Saleem Javed
and Mujaffar Rahim are
P.O.
Accused Maulana
Nawabuddin is acquitted
9. Date of such order :25.05.2010
BRIEF REASONS FOR SUCH DECISION OF THE CASE:-
1. The brief facts of the case are that a complaint was made by Sh. Dharambir Sharma, Superintendent Archological to SHO PS Tuglak Road regarding breaking of wooden gate of the mosque of Safdarjung Tomb on 07.03.1997. It is stated in the complaint "Reference my letter no. 10/21/96-M-724 dated 06.03.97 on the subject noted above, I am to inform you that a group of muslims came to the entrance gate of the mosque at Safdarjung Tomb at 12.00 (Noon) with Kudals and hammers and attacked the wooden entrance which is old and contemporary to the mosque. These people attempted to break open the wooden gate from outside as well as from inside. The Imam was also present inside the mosque at the time of incident. The following persons were involved in damaging and breaking the old wooden gate which is a violation of AM & ASR Act, 1958 and rules, 1959;
(i) Shri M.A. Chand (This person instigated the mob to break
open the gate today positively)
(ii) Shri M. Saleem
(iii) Shri Abdul Quayum
(iv) Mrs. Sayeda
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(v) Sh. Nawabbudidin Naqashbandi
(vi) Sh. Salim Javed
(vii) Sh. Mujaffar Rahim
(viii) Sh. Israr Ahemad
(ix) Sh. Pappu Khan
(x) Sh. Nur Hassan
The mischievous mob obstructed our watch and ward staff from discharging their official duty of protecting this ancient monument. They did not hear to the lawful direction and command of our watch and ward staff and the police persons present at the spot and damaged/broke the old wooden gate. These persons not only instigated the mob to create law and other problem but shouted objectionable slogans which disturbed the peace in a centrally protected monument.
Keeping in view the gravity of the situation and seriousness of acts of these people it is requested that strict action be initiated against the culprits for damaging the ancient monument and violating of the above cited Act and Rules."
2. After the completion of investigation, challan U/s 451/427/353/141/148/149 IPC and 16 (1) 30,31,33 & 7 (1), 8 A 8 (f) Rule, 1959 AM and ASR Act, 1958 was filed against accused Saleem Javed, Mujaffar Rahim and Maulana Nawabuddin. Accused were summoned. Accused Saleem Javed and Mujaffar Rahim did not appear and they were declared P.O. vide order dated 29.09.2001. Charges for the above said offences were framed against the accused Maulana Nawabuddin on 26.07.2002 to which he pleaded not guilty and claimed trial.
43. The prosecution in order to prove its case against accused Maulana Nawabuddin examined 5 witnesses. Sh. Ram Kumar SI (Retd) was examined as PW 1, Retired HC Gopi Chand was examined as PW 2, Sh. Dharambir Sharma, who is the complainant in the present case was examined as PW 3, N.C. Biswas, Record Clerk, RML Hospital was examined as PW 4, SI Yashwant Siwal, RP Bhawan, Security, New Delhi was examined as PW 5.
4. Documents which were exhibited during prosecution evidence are as under:
(i) FIR was exhibited as Ex. PW 1/A. (ii) The complaint was exhibited as Ex. PW 3/A. (iii) The MLC no. 2356/97 of Saleem Javed in the handwriting of Dr. Ashish was exhibited as Ex. PW 4/A. (iv) The rukka was prepared vide memo Ex. PW 5/A. (v) Accused Mujaffar Rahim and Saleem Javed were arrested and
his personal search vide memo Ex. PW 5/B and Ex. PW 5/C respectively.
(vi) Accused Maulana Nawabuddin was arrested and was released on bail vide memo Ex. PW 5/E.
5. Thereafter, the statement of accused U/s 313 read with 281 Cr. PC. recorded in which accused stated "He is innocent and has been falsely implicated in the present case at the instance of Dharmbir Sharma. He states that he was inside the Mosque at the time of Friday prayer on the date of alleged incident and he has neither instigated nor provoked the Mob as alleged in the prosecution evidences. He states that being Imam of the Mosque, his job was to make arrangements including cleaning of the Mosque before the Friday and Eid-prayer starts.
5He also states that he is performing Namaj on every Friday as Imam in the Mosque attached to S.J. Tomb since 1984. He further states that he has given several representation to the Govt. including the Prime Minister of India for making arrangements of Namaj in the said Mosque. He states that he has written several letters to the various authorities for the arrangements of Namaj in the aforesaid Mosque. He also states that he has one letter of the year 1995 issued to the Imam of the said Mosque regarding arrangement and fixing of time of Friday prayer with Id-Namaj from the office of Secy. Delhi Waft Board dated 17.04.95. He further states that he has been issued an office order in his name from the office of Chairman, Delhi Waft Board. He further states that he wants to lead evidence in defence.
6. Sh. Salahuddin was examined as DW 1 and accused Maulana Nawabuddin examined himself as DW 2.
7. DW 1, Sh. Salahuddin deposed in his evidence "I am Temporary employee of Delhi Waft Board, Daryaganj, New Delhi -02 as a Naib-e-Nigrawan-Masadi. I have brought the record of employment letter no. M/M/114-Rec of accused Nawabuddin as a Pesh-e-imam of Masjid, Madarsa, Safdarjung dated 01.10.2003 issued by Qazi Azhar Ahmed, then, CEO of Delhi Waft Board, Daryaganj, New Delhi -02 which is marked Ex. DW 1/A bears the signature of CEO (OSR). I may bring documents/representation made to the Waft Board prior to the 01.10.2003 regarding appointment/performing the duty as a Pesh-e-imam of Masjid, Madarsa, Safdarjung."
8. DW 2, accused Maulana Nawabuddin examined himself as 6 defence witness deposed in his evidence "Today i.e. on 15.12.2009, I am filing the true English translation of Ex. DW 1/A which is already exhibited on the last date of hearing and the same is marked as Mark A. I am working as Imam at Masjid adjacent Safdarjung Madrasa since the year 1983/84. Exact date, I do not remember. I was appointed as Imam Khatib of this mosque by Muslim Muttahida Mahaz. The letter in Urdu along with true translation are exhibited as Ex. DW 2/A and Ex. DW 2/B (OSR). During the period of services of Imam, I have received a letter dated April, 1985 from the Prime Minister's office addressing in my name as Imam of the said mosque vide memo Ex. DW 2/C. I have another letter dated 29.08.1985 from the Prime Minister's Office under the signatures of Sh. B.P. Kaistha addressing me as a Imam of the said mosque vide memo Ex. DW 2/D and a letter dated November 23, 2000 Ex. DW 2/E from the office of Vice President of India and also another letter dated 09.10.2001 from the Office of Government of NCT under the signatures of Sh. Zafar Saifullah, Chairman & Former Cabinet Secretary, Government of India, High Powered Committee for Jama Masjid vide memo Ex. DW 2/F addressing me as a Imam of the said mosque, Madrasa Safdarjung, New Delhi. I am working as a Imam of the above said mosque on every Friday, Id and Bakrid peacefully without any dispute."
9. Documents which were exhibited during defence evidence are as under:
(i) Sh. Salahuddin have brought the record of employment letter no. M/M/114-Rec of accused Nawabuddin as a Pesh-e-imam of Masjid, Madarsa, Safdarjung dated 01.10.2003 issued by Qazi Azhar Ahmed, then CEO of Delhi Wakf Board, Daryaganj, New Delhi -02 which is marked as Ex. DW 1/A. 7
(ii) The letter in Urdu along with true translation were exhibited as Ex. DW 2/A and Ex. DW 2/B.
(iii) During the period of services as Imam, accused Maulana Nawabuddin have received a letter dated April, 1985 from the Prime Minister's office addressing in his name as Imam of the said mosque was exhibited as Ex. DW 2/C.
(iv) Accused Maulana Nawabuddin have another letter dated 29.08.1985 from the Prime Minister's Office under the signatures of Sh.
B.P. Kaistha addressing him as an Imam of the said mosque was exhibited as Ex. DW 2/D.
(v) A letter dated November 23, 2000 was exhibited as Ex. DW 2/E from the office of Vice President of India and also another letter dated 09.10.2001 from the Office of Government of NCT under th signatures of Sh. Zafar Saifullah, Chairman & Former Cabinet Secretary, Government of India, High Powered Committee for Jama Masjid was exhibited as Ex. DW 2/F addressing accused Maulana Nawabuddin as an Imam of the said mosque, Madrasa Safdarjung, New Delhi.
10. I have heard arguments from Ld. APP for State and Ld. Counsel for accused. Counsel for accused Maulana Nawabuddin relied upon the following rulings:
(i) Ajayab Singh and others Vs State of Rajasthan: Mere presence in or near unlawful assembly does not make one member of unlawful assembly. The mere presence of a person in or near the unlawful assembly is not sufficient to show that he was also a member of the unlawful assembly. It must be proved that he also shared the common object of the unlawful assembly. The burden lies on the prosecution to prove this fact. It is a question of fact in each case whether a person 8 happens to be innocently present at the place of occurrence or was actually a member of the unlawful assembly. One may be present at the place of occurrence innocently and out of curiosity. Simply because one is present in or near the unlawful assembly, it cannot be assumed that he was a member of that unlawful assembly. But the question remains as to whether he shared the common object of the unlawful assembly. It is only when he shares the unlawful common object of the assembly that he becomes a member of it. There must be some evidence of participation by him before holding that he is a member of the unlawful assembly. Simply because a person is close relative of accused persons, he cannot be taken to be the member of the unlawful assembly."
(ii) Markanda Naik and ten others Vs State, 1993 CRI. L.J. 3328 - Unlawful assembly -Murder-Vicarious liability -Necessary ingredients to be proved before invoking vicarious liability, stated.
In order to bring application of S. 149, the following ingredients have to be satisfied.
(a) There was an unlawful assembly as contemplated by S. 141;
(b) The accused was a member of such assembly; (c) He had intentionally joined or con-tinued in that unlawful assembly; (d) He knew of the common object of the unlawful assembly; (e) An offence was committed by a member of the assembly; (f) Such offence was committed in prose-cution of the common object of the assembly; or (g) As the members of the assembly know that such offence was
likely to be committed in prosecution of their common object.
(iii) Masalti Vs. The State of Uttar Pradesh, AIR 1965 Supreme 9 Court 202 (V 52 C 38): That the mere presence in an assembly does not make a person, who is present, a member of an unlawful assembly unless it is shown that he had done something or omitted to do something which would make him a member of an unlawful assembly, or unless the case falls under S. 142 I.P.C. cannot be read as laying down a general proposition of law that unless an overt act is proved against a person who is alleged to be a member of an unlawful assembly, it cannot be said that he is a member of such an unlawful assembly. What has to be proved against a person who is alleged to be a member of an unlawful assembly is that he was one of the persons constituting the assembly and he entertained along with the other members of the assembly the common object as defined by S. 141 I.P.C.
11. Record perused and considered.
12. PW 2, Retired HC Gopi Chand deposed in his evidence "On 07.03.97, I was posted as HC in PS Tuglak Road. I was on arrangement duty at Safdarjung mothersa along with SI Yashwant and other armed force and the security guards were also present at the spot. At about 12 noon about 25/30 people came on the tempo and reached the wooden gate installed at the mothersa and they started breaking the door using force without any permission or lawful reasons. They were carrying various instruments of house breaking such as iron rods and gadders. SI Yashwant asked them not to open this door and if they want to go inside, they can use the main gate which is open but the accused person did not stop and continue to break that door. As the police force was not adequate as compared to the accused persons, the SI asked me to call additional force. I informed the SHO through wireless and the force along with SHO and 10 other officers came at the spot and on the arriving of the force, most of the accused persons run away from the spot. No arrest was made in my presence. However, few persons remained at the spot and made the hue and cry that they have been beaten by the police and therefore, they were taken to the hospital. IO recorded my statement."
13. PW 3, Sh. Dharambir Sharma, who is the complainant in the present case deposed in his evidence "On 07.03.97, I was posted as Superintendent, Archaeologist, Delhi Circle. At around 12 noon, the mob of the people came to the Safdarjung Tomb which is a centrally protected monument and heritage. Some of the people instigated the mob and forcefully break open the ancient wooden gate of the mosque. Nawabuddin, the so called Imam was also present at the site. Beside the M.A. Chand, Muzaffar and Saleem etc. were also there and the mob was instigated by the group of this people. Nakshbandi accused is present in the Court today. The mob became violent and a serious law and order situation and breach of peace and tranquility. The watch and ward staff of the Archaeological Survey of India and police personnel try to prevent the damage to the ancient place but they could not stop the agitated and violent mob. Consequently, the ancient gate of the mob which is very old was damaged. I reported the matter to the concerned Police Station in writing which is now Ex. PW 3/A bears my signature at Point A. I requested the police to initiate action as per the AMASR Act and other relevant rules and sections of the law which are applicable in such cases. IO inquired to me about the incident and other staff present there. It is correct that the few persons sustained injuries who were the staff members and other two were helping us to prevent the damage. The injured were sent to hospital for treatment. IO also inquired to me about the position of the gate which was damaged and surroundings."
1114. PW 5, SI Yashwant Siwal deposed in his evidence "On 07.03.97, I was posted as SI in PS Tuglak Road. I alongwith HC Gopi Chand and outside force were present at Safdarjung Tomb since morning. At about 12, one tempo came at the spot along with 25-30 persons boarding. All these persons step down at the spot. They started shouting religious slogans. Few of them went to inside and few kept standing at the wooden gate. The persons standing outside started pushing the gate in order to break it open. One of these persons was also carrying one iron rod and he tried to break open the door. The person from inside were also trying to break open the door. I with the help of HC and outside force tried to control and save the door from the violent mob. I also sent wireless message to District control room as the mob was going out of control. The senior officers along with SHO came at the spot. As the extra force arrived the mob dispersed but we managed to apprehend two persons namely Saleem Javed and Mujaffar Rahim. As the accused persons were injured due to their violence act in breaking open the door, they were medically examined in the hospital and brought back to the PS. The superintendent ASI made a written complain in the PS. I prepared the rukka on the act which is now exhibited as Ex. PW 5/A bears my signature at Point A and case was registered. Accused persons were arrested and personal search was conducted vide memos now exhibited as Ex. PW 5/B & Ex. PW 5/C bears my signature at Point A of accused Mujaffar Rahim and Saleem Javed. Site plan was prepared which is now exhibited as bears my signature at point A. Statement of HC Gopi Chand was recorded and on 20.06.97, accused Maulana Nawabuddin was arrested and was released on bail vide memo exhibited as Ex. PW 5/E bears my signature at point A. Accused person Maulana Nawabuddin is present in the Court today. Correctly identified by the witness. The statement of security staff ASI was recorded and as I was transferred, I handed over the file to MHCR PS Tuglak Road."
1215. It is stated in the complaint that a group of muslim came to the entrance gate of the mosque at Safdarjung Tomb and attacked the wooden entrance which is old. It is further stated these people attempted to break open the wooden gate from outside as well as from inside. The Imam was also present inside the mosque at the time of incident.
16. It is clear from the complaint itself that Imam not came with the mob. He was already present in the mosque. The persons who came in mob started breaking the wooden door. The question arises whether Imam was aware that a mob is coming to break open the wooden door and he had a common object with the mob. There is no evidence or other material to show that Imam was aware that a mob is coming and it will break open the door of mosque. None of the PWs who were present at the spot deposed that Imam was aware about the common object of mob or he joined the mob after its arrival. Other question arises, if accused Imam was present on spot and was a member of unlawful assembly then why he was not arrested on spot like two other accused Saleem Javed and Rahim. Accused was arrested on 20.06.1997 after more than three months of the incident. It is not case of prosecution that accused has run away from the spot. It is pertinent to mention here that accused was appointed as Imam of mosque in question, therefore, his presence was in routine and in the absence of direct evidence, it cannot be assumed that he was a part/member of unlawful assembly.
17. After going through the deposition of PW 2, PW 3 and PW 5 and relying upon the above mentioned rulings, I am of the view the prosecution failed to establish that accused Maulana Nawabuddin was a member of unlawful assembly who tried to break the wooden door of mosque.
1318. In view of the above discussions, I am of the considered view that prosecution failed to establish its case against accused Maulana Nawabuddin beyond reasonable doubts. Hence, the accused Maulana Nawabuddin is acquitted. Bonds are discharged.
File be consigned to Record Room and be revived as and when the accused Saleem Javed and Mujaffar Rahim are arrested.
Announced in the open court PRITAM SINGH
Metropolitan Magistrate Delhi
25.05.2010