Delhi District Court
State vs . Afzal on 3 June, 2022
IN THE COURT OF MS. APOORVA RANA, M.M-10,
DWARKA COURT (SOUTH WEST), NEW DELHI
CNR No.DLSW02-004987-2019
Cr. Case1304/2019
STATE Vs. AFZAL
FIR NO.595 /2018
P.S Kapashera
03.06.2022
JUDGMENT
Case No. : 1304/19 Date of commission of offence : 15.12.2018
Date of institution of the case : 31.01.2019
Name of HC Narender : HC Narender
Kumar
Name of accused and address : Afzal
S/o Hafiz Ikram
R/o Khsra no. 1286,
Karan Market, Main
Road, Kapashera,
Delhi.
Also at: VPO
Panchveer, P.S
Sahibpur Kmaal,
Distt. Begusarai,
Bihar.
Offence complained of or proved : U/s 283/290 IPC. Plea of the accused : Pleaded not guilty Final order : Acquitted State Vs. Afzal Page No.1 / 8 Date reserved for judgment : 31.05.2022 Date of judgment : 03.06.2022
BRIEF STATEMENT OF THE FACTS FOR DECISION:
1. The present case pertains to prosecution of accused Afzal, pursuant to charge sheet filed qua him under Sections 283/290 of Indian Penal Code, 1860 (hereinafter IPC for short), subsequent to the investigation carried out at P.S: Kapashera, in FIR no. 595/2018.
2. It is the case of the prosecution that on 15.12.2018, while on patrolling duty, HC Narender and Ct. Rajesh reached near main Old Delhi Gurgaon Road, Kh. No. 1286, Karan Market, Sahil Cycle Works, where they saw that the owner of the said shop / accused had placed cycle tyres, rim and other articles of the shop on the footpath, outside his shop, due to which inconvenience was being caused to the passers-by on the footpath. That, despite various warnings, the accused paid no heed. Accordingly, an FIR was registered qua the accused and after investigation, the police filed the present charge sheet against the accused for commission of offence punishable u/s 283/290 IPC.
3. Complete set of charge sheet and other documents were supplied to the accused. Notice of accusation for offence punishable u/s 283/290 IPC was served to the accused to which he pleaded not guilty and claimed trial. Further, the accused, vide his statement u/s 294 Cr.P.C, admitted the genuineness of the FIR State Vs. Afzal Page No.2 / 8 in the present case and same was exhibited as, Ex. P/A/1.
MATERIAL EVIDENCE IN BRIEF:
4. The prosecution, in support of the present case has examined two witnesses in total.
5. PW-1 was HC Narender, the complainant and the IO in the present case, who deposed that on 15.12.2018, he was on patrolling duty with Ct. Rajesh. That at about 04:15 PM, when they reached near main Old Delhi Gurgaon Road, Kh. No. 1286, Karan Market, Sahil Cycle Works, they saw that the owner of the said shop / accused had placed cycle tyres, rim and other articles of the shop on the footpath, outside his shop, due to which obstruction was being caused to the passers-by on the public path. That he asked the accused to remove the said articles form the footpath, but in vain. That consequently, the said witness prepared a rukka, Ex. PW1/A and gave it to Ct. Rajesh for registration of FIR. He further deposed that Ct. Rajesh returned to the spot and handed over the original rukka and copy of the FIR to IO HC Narender. That, thereafter, site plan. Ex.PW1/B, bearing his signatures at point A, was prepared by him. The accused was arrested vide arrest memo Ex.PW1/C, bearing his signatures at point A and his personal search was conducted vide memo Ex PW 1/D. The said witness also took photographs of the spot which were exhibited as Ex.P-1 (colly). The statement of the said witnesses was recorded by the IO.
6. PW-2 was Ct. Rajesh, who deposed on similar State Vs. Afzal Page No.3 / 8 lines as PW1.
7. No other PW was left to be examined, hence, P.E was closed.
STATEMENT OF ACCUSED U/S 313 Cr.P.C.:
8. Statement of the accused u/s 281 Cr.P.C read with section 313 Cr.P.C. was recorded separately in which all the incriminating circumstances appearing in evidence were put to him. The accused controverted and denied the allegations levelled against him and stated that he has been falsely implicated in the case. Accused further opted to not lead evidence in his defence.
FINAL ARGUMENTS:
9. Ld. APP for the State has argued that prosecution witnesses have supported the prosecution case and their testimony has remained unrebutted. It has been further argued that on the combined reading of the testimony of all the prosecution witnesses, offence u/s 283/290 IPC has been proved beyond doubt.
10. Per contra, Ld. Counsel for accused has stated that there is no legally sustainable evidence against the accused and that the accused has been falsely implicated by the complainant. It is further argued that due to the lacunae and incoherency in the story of the prosecution, accused be given the benefit of doubt State Vs. Afzal Page No.4 / 8 and is therefore, entitled to be acquitted.
APPRECIATION OF EVIDENCE AND CONSEQUENT FINDINGS:
11. Arguments adduced by Ld. APP for State and Ld. Counsel for accused have been heard. The evidence and documents on record have been carefully perused.
12. I have bestowed my thoughtful consideration to the rival submissions made by both the parties. Accused Afzal has been indicted for the offence u/s 283/290 IPC. Section 283 IPC provides punishment for offence of causing danger, obstruction or injury to any person in any public way or public line of navigation, by doing any act, or by omitting to take order with any property in possession of wrongdoer or under his charge. Section 290 IPC provides punishment for causing public nuisance in any case not otherwise punishable by Cr.P.C.
13. It is trite law that the burden always lies upon the prosecution to prove its case beyond reasonable doubt on the basis of acceptable evidence and that the law does not permit the court to punish the accused on the basis of moral conviction or on account of suspicion alone. Also, it is well settled that accused is entitled to the benefit of every reasonable doubt in the prosecution story and such doubt entitles him to acquittal.
14. As per the version of the prosecution, the accused had placed cycle tyres, rim and other articles of the shop on the State Vs. Afzal Page No.5 / 8 footpath, outside his shop, due to which inconvenience was being caused to the passers-by on the footpath. Allegedly, the accused paid no heed to the warnings of the police officials to remove the same from the footpath. Reportedly, photographs of the spot were taken by the IO, however, perusal of the same shows that the articles of the shop, though kept outside the shop visible therein, do not appear to be kept on the footpath as such, as would appear to cause obstruction to passers-by on the footpath. More importantly, the said photographs are in a printout form which is unsupported by a certificate under section 65-B of Indian Evidence Act, 1872, and though, they have been marked as exhibits, the same are not admissible in evidence, in the absence of the aforesaid certificate (reliance placed on Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal, (2020) 7 SCC 1).
15. Further, through it has been deposed by the prosecution witnesses that they had made departure and arrival entry with respect to their patrolling duty, however, the relevant DD entries in that regard have not been placed on record. Additionally, section 283 of IPC requires an obstruction/danger /injury being caused to any person by the act/omission of the wrongdoer. In the present case, no such public person has been identified or made a witness to the case, to whom obstruction/danger/injury was caused by the act/omission of the accused. Also, no specific complaint in the aforesaid context has been placed on record by the prosecution. In the absence of the complaint from any public person, it is difficult to comprehend as to how the act of the accused was causing inconvenience to passers-by or causing public nuisance u/s 290 IPC, in general.
State Vs. Afzal Page No.6 / 8Admittedly, despite their presence at the spot, the IO did not make any public person, a witness in the present case. It is further reflected that even the statements of the vendors/shop owners in the neighborhood of the shop of the accused were not recorded, which should have been done in the usual circumstances, especially when the investigating proceedings were reportedly conducted at the place where the accused was carrying out his work at the shop. Not only this, the IO did not even note down the names and addresses of the neighbouring shop owners / other public persons or serve any notice to them, upon their refusal to join investigation. All this creates a serious lapse on the part of the IO in conducting a fair and proper investigation, and thus, gives rise to suspicion in the version of the prosecution story.
16. In view of the above facts and circumstances, the possibility that the IO had prepared all the documents in the police station itself and that being the complainant himself, he falsely implicated the accused for the aforesaid offence, cannot be ruled out.
17. The aforementioned lacunae in the story of the prosecution render the version of the prosecution doubtful, leading to the irresistible conclusion that the burden of proving the guilt of the accused beyond reasonable doubt has not been discharged by the prosecution. Thus, this court is of the opinion that the prosecution has failed to bring on record any cogent evidence in order to prove the commission of and guilt of the accused for offence u/s 283/290 IPC beyond reasonable doubt, State Vs. Afzal Page No.7 / 8 thus, entitling the accused person to benefit of doubt and acquittal.
18. Accordingly, this court hereby accords the benefit of doubt to the accused for the offence u/s 283/290 IPC and holds the accused not guilty of commission of the said offence. Accused Afzal is thus, acquitted of the offence u/s 283/290 IPC.
19. Copy of this judgment be given free of cost to the accused.
Announced in the open court
APOORVA Digitally signed by
APOORVA RANA
on 03.06.2022, in presence of accused. RANA Date: 2022.06.03 16:29:33
+05'30'
(APOORVA RANA)
M.M-10/Dwarka Courts/03.06.2022
It is certified that this judgment contains 08 pages, all signed by the undersigned.
Digitally signed by APOORVAAPOORVA RANA RANA Date: 2022.06.03 16:29:53 +05'30' (APOORVA RANA) M.M-10/Dwarka Courts/03.06.2022 State Vs. Afzal Page No.8 / 8