Delhi District Court
State vs . Raju @ Riyazuddin S/O Mohd. Halimuddin on 15 April, 2019
IN THE COURT OF SH. RAKESH TEWARI
DISTRICT & SESSIONS JUDGE (EAST):
KARKARDOOMA COURTS : DELHI:
SC No. 223/17/19
CNR No. DLET010043502017
State Vs. Raju @ Riyazuddin S/o Mohd. Halimuddin
R/o Village Rampur Mohanpur, PS Araria,
Distt. Araria, Bihar.
FIR No. 376/2004
U/s 399/402/489B/489C/174A IPC & 25/54/59 Arms Act.
PS Kalyanpuri
Date of Institution : 21.10.2009
Date of Reserving for Judgment : 02.04.2019
Date of Pronouncement : 15.04.2019
J U D G M E N T :
1. Case of the prosecution in brief is that on 01.08.2004, SI Ombir Singh was present in Special Staff Office, East District, Mayur Vihar, PhaseII. At about 5.00 p.m., the secret informer came to him and gave information that notorious dacoits Anwar along with his associates would come at 8.00 p.m. in a park on the leading from NH24, Gazipur Traffic Signal to Kondli and wound assemble in the Pump Office and would commit dacoity in an apartment near Traffic Signal. He SC No. 223/17/09 State Vs. Raju @ Rajul @ Riyazuddin Page No.1/14 also informed that dacoits were armed with dangerous weapons and if raid was conducted, they would be apprehended. This information was conveyed to Inspector Rakesh Dixit who told SI Ombir Singh to do the needful who lodged DD No.10. A raiding party consisting of HC Manoj Kumar, HC Amar Chand, HC Kishan Pal, HC Nazir Hussain, HC Vinod Kumar, Ct.Lachi Singh, Ct. Sunil Kumar, Ct. Puran Chand, Ct. Amrik Singh and Ct. Harinder Kumar was formed.
2. At about 7.00 p.m., the raid party left the office in private vehicles along with secret informer. At NH24, Gazipur Traffic Signal, 45 passersby were requested to join the police for apprehending the accused persons, but all of them left the place by expressing their inability to join the police. Without wasting further time, they reached the spot at about 7.20 p.m. The raid party was briefed and they scattered around water pump house. At about 7.25 p.m., SI Ombir Singh directed HC Manoj Kumar to go along with secret informer to overhear the conversation of accused persons on their assembling.
3. At about 8.10 PM, five/six persons came in the room of Pump House after scaling the wall and started talking with each other. Secret informer told that those persons were dacoits. HC Manoj Kumar was sent to overhear their conversation who returned back after 4/5 minutes. He informed that one tall boy who was being addressed as Anwar Bhai was telling his SC No. 223/17/09 State Vs. Raju @ Rajul @ Riyazuddin Page No.2/14 associates to commit dacoity at the flat of Jain Saheb, first floor, Highway Apartments. On receipt of this information from HC Manoj, SI Ombir Singh flashed signal to other raid party members and challenged the accused persons that they had been surrounded. On hearing this, those boys started running out. SI Ombir along with HC Manoj Kumar apprehended accused Naeem Akhtar. HC Kishan Pal apprehended accused Neeraj(PO). HC Vinod Kumar apprehended accused Muzahid Alam(PO). HC Amar Chand apprehended accused Raju @ Rajul(PO), whereas HC Nazir Hussain apprehended accused Naushad @ Mujaffar. One boy who was being chased by Ct. Harinder managed to flee by taking advantage of darkness.
4. From the search of accused Naeem Akhtar, one loaded country made pistol Ex.P1 was recovered from his right side dub. On checking, it was found loaded with live cartridge. The sketch of the recovered country made pistol and the live cartridge was prepared and same were seized. One country made pistol loaded with one live cartridge was recovered from the right side dub of accused Neeraj @ Neeru(PO). The sketch of the country made pistol and live cartridge recovered from him was also prepared and same were seized. One buttonactuated knife was recovered from the right side pocket of pant of accused Muzahid(PO) and its sketch was prepared and same was seized. One iron rod was recovered from the right side dub of SC No. 223/17/09 State Vs. Raju @ Rajul @ Riyazuddin Page No.3/14 accused Raju @ Rajul(PO) and its sketch was prepared and same was seized. One iron rod was recovered from the right side dub of accused Naushad @ Mujaffar and its sketch was prepared and same was seized. From the left pant pocket of accused Naushad @ Mujaffar, counterfeit currency notes amounting to Rs.5,000/ in the form of 50 currency notes of Rs.100/ each were recovered and same were seized. All the weapons/counterfeit currency notes were seized after converting them into sealed pulandas. The seal after use was given to HC Manoj Kumar. Form FSL was also filled in at the spot.
5. Thereafter, SI Ombir Singh prepared the rukka and sent the same through HC Kishan Pal to the police station for the registration of the case. On the basis of the said rukka of the SI Ombir Singh, the duty officer registered the case FIR. After the registration of the case, further investigation of the case was assigned to SI Sansar Singh, who reached the spot prepared the site plan. All the five accused persons were arrested. The country made pistols and the live cartridges were sent to FSL.
6. IO filed the report of the currency notes along with forwarding letter. He also filed the sanctions under section 39 Arms Act for prosecution of accused Neeraj (PO) and Naeem Akhtar respectively. The chargesheet was filed in the Court.
7. The charges for offences under Section 399/402 IPC and 25/54/59 Arms Act were framed against accused Naeem Akhtar SC No. 223/17/09 State Vs. Raju @ Rajul @ Riyazuddin Page No.4/14 on 29.10.2009 by my Ld. Predecessor, and the charge under sections 399/402 IPC was also framed against accused Naushad @ Mujaffar and Raju @ Rajul on 07.01.2011 by my Ld. Predecessor, and a separate charge under section 489C/489B IPC was also framed against accused Naushad @ Mujaffar by my Ld. Predecessor, to which charges accused pleaded not guilty and claimed trial.
8. During the trial, accused Raju @ Rajul @ Riyazuddin was declared proclaimed offender vide order dated 23.09.2013 by my Ld. Predecessor. Thereafter, accused Raju @ Rajul @ Riyazuddin was arrested on 05.04.2017 and as such supplementary chargesheet was filed in the case for offence under Section 174A qua the accused as per order dated 06.04.2017 passed by my Ld. Predecessor.
9. Ultimately, charge for offence under Section 174A IPC was also framed against the accused Raju @ Rajul @ Riyazuddin by this Court vide its order dated 01.08.2018, to which charge he pleaded not guilty and claimed trial.
10. The prosecution has examined 20 witnesses in support of its case, who have been discussed below.
11. The statement of the accused was recorded under Section 313 Cr.P.C., wherein he denied all the allegations levelled against him as false and claimed to have been falsely implicated in the present case. However, he opted not to lead SC No. 223/17/09 State Vs. Raju @ Rajul @ Riyazuddin Page No.5/14 any evidence in his defence.
12. I have heard the Ld. Chief Prosecutor for the State and Sh. Shakeel Ahmed, Advocate, for the accused and also perused the record.
13. All the witnesses examined in the case are only police officials. The prosecution witnesses, namely, ASI Manoj Kumar (PW1), ASI Krishan Pal (PW3), HC Amar Chand (PW4), HC Vinod Kumar (PW5), HC Lachche Singh (PW6), Ct. Sunil Kumar (PW7), HC Harinder Singh (PW10) and PW17 SI Ombir Singh have deposed similar facts as they were the members of raiding team with regard to the secret information received by SI Ombir Singh(PW17) in the office of Special Staff, East District and formed a raiding party to apprehend the accused persons. The said PWs have also spoken about the apprehension of accused persons by the police party and conducting the proceedings with regard to the weapons recovered from the possession of the accused persons. Moreover, PW2 HC Bhramanand proved the copy of FIR as Ex.PW2/A, besides his endorsement on the rukka vide Ex.PW2/B. PW8 HC Shish Ram made entries at Sr. No. 2293 regarding deposit of six cloth parcels and proved the same as Ex.PW8/A. PW9 HC Ishwar Dayal took two parcels to deposit the same in FSL Rohini vide RC No. 91/21. PW11 Naresh Kumar, PW12 ASI Shyam Lal and PW13 Ct. Sunil Pawar have SC No. 223/17/09 State Vs. Raju @ Rajul @ Riyazuddin Page No.6/14 deposed about the arrest of accused Raju @ Rajul @ Riyazuddin. PW14 Ct. Satish Chand and PW15 HC Anil Kumar were the witnesses qua arrest of accused Mohd. Naushad and as such they were discharged in the case having no relevancy of their deposition qua the accused Raju @ Rajul @ Riyazuddin.
14. PW16 SI (Retd.) Sansar Singh narrated the investigative steps taken by him on 01.08.2004 when investigation of this case was entrusted to him. He deposed facts viz handing over of six sealed parcels to him; seizure memo of fake currency notes stated to be recovered from accused Naushad; recording of disclosure statements of the accused; their arrest and deposit of case property in the malkhana, besides the sanction order under Section 39 Arms Act obtained against the accused Naeem Akhtar. PW17 SI Ombir Singh conducted investigation of the case and is the author of present case FIR. He detailed all the investigative steps taken by him during investigation viz., arrest of accused persons, recovery of weapon of offence and fake currency notes recovered from accused etc.
15. PW18 ASI Sunil Panwar arrested the accused Raju @ Rajul @ Riyazuddin in the present case being proclaimed offender vide kalandra Ex.PW18/A and proved DD No.107B qua the arrival and intimation of arrst of accused as Ex.PW18/B and arrested the accused vide memo Ex.PW18/C and conducted his personal search vide memo Ex.PW18/D. PW19 Ct. Ravi SC No. 223/17/09 State Vs. Raju @ Rajul @ Riyazuddin Page No.7/14 Kumar recorded DD No. 79B regarding arrest of accused and proved the same as Ex.PW19/A. PW20 ASI Gabbar Singh Rawat prepared supplementary chargesheet under Section 174A IPC.
16. The prosecution story solely hinges upon the statements of the police officials as there is no independent corroboration from any public witness. ASI Manoj Kumar (PW1) has stated that when he was sent by SI Ombir Singh (PW17) to overhear the conversation amongst the accused persons, he along with secret informer tried to overhear the conversation of the accused persons who were inside the pump house room and was able to hear their conversations. It is the case of the prosecution that there was only one gate of the said room. It is quite unnatural that if any person is going to commit a crime, then he would talk in such a loud voice so that it can be heard by others. According to ASI Manoj Kumar (PW1), when he had gone near the accused persons who were in a small room of 10 x 10 feet, then he had heard the talks of accused persons and accused persons were visible to them. It is not believable that when the accused persons were visible to ASI Manoj Kumar (PW1) then how he was not seen by the accused persons particularly when it has come in evidence that outside the said room, there was light from the electric pole.
17. There are material contradictions and discrepancies in SC No. 223/17/09 State Vs. Raju @ Rajul @ Riyazuddin Page No.8/14 the statements of the police officials who were allegedly member of the raiding team. ASI Manoj Kumar (PW1) has stated that they had come to the park in a Tata Sumo of white colour driven by Ct. Lachchi. His testimony has been controverted by PW3 ASI Krishan Pal who has stated that they reached the spot in Tata Sumo which was driven by Ct. Jasbir. HC Amar Chand (PW4) has controverted their statements by saying that they had hired a private vehicle which was driven by a private driver. HC Vinod Kumar (PW5) has also stated that they had reached the spot in Private Tata Sumo which was being driven by a private driver. HC Lachche Singh (PW6) has denied that he had driven the vehicle to the spot. He has stated that they started from the office of Special Staff at about 7.00 p.m. in private vehicle and that vehicle was driven by a private driver. HC Harinder Singh (PW10) has controverted the statement of PW6 by stating that Ct. Lachche had driven the vehicle to the spot. The IO of the case i.e. SI Ombir Singh (PW17) has controverted the testimony of other raiding party members by saying that they had gone to the spot in two private vehicles both being driven by private drivers.
18. So, there is material contradictions in the testimony of police officials to the effect whether there were two vehicles or there was one vehicle in which they had reached the spot. There are contradictions regarding driver of the vehicle. Some said it SC No. 223/17/09 State Vs. Raju @ Rajul @ Riyazuddin Page No.9/14 was being driven by Ct. Lachche Singh, but Ct. Lachche himself has denied that he had driven the said vehicle, whereas some police officials said it was being driven by a private driver. IO of the case (PW17) has put another story that they had gone to the spot in two private vehicles being driven by private drivers.
19. There are contradictions regarding uniform being worn by police officials at the spot. PW1 ASI Manoj Kumar has stated that ASI Ombir Singh was in police uniform whereas other raiding party members were in civil dress. HC Krishan Pal (PW3) has controverted the testimony of PW1 ASI Manoj Kumar by stating that that all the raiding party members were in plain cloths. HC Amar Chand (PW4) has stated that all the raiding party members were in plain cloths. PW6 HC Lachche Singh has controverted their statements by saying that some members were in police uniform while some were in plain cloths. PW7 Ct. Sunil Kumar has stated that all the members were in plain cloths, whereas PW10 HC Harinder Singh has stated that SI Ombir Singh was only in uniform. PW17 SI Ombir Singh has controverted their statements that all the members of the raiding party were in plain cloths.
20. There are material contradictions in the statements of the police officials. Some have said that only SI Ombir Singh were in police uniform, some have said that all the police officials were in uniform while some have said that all of them SC No. 223/17/09 State Vs. Raju @ Rajul @ Riyazuddin Page No.10/14 were in plain cloths. If for the sake of arguments it is presumed that some or all the members of the raiding party were in police uniform, it is not possible that the accused persons were seen by the police but they had not seen any police personnel while in uniform. Had it been so that some of the police officials were in uniform, it is not expected of a criminal to assemble and made preparation to commit dacoity.
21. There is also material contradictions with regard to number of police personnel present at the spot. PW1 ASI Manoj Kumar has stated that there were 11 police officials. PW3 ASI Krishan Pal and PW6 HC Lachche Singh have also stated that there were 11 police officials. PW10 HC Harinder Singh has controverted their statements by saying that there were 12 police officials. The IO of the case SI Ombir Singh (PW17) has also controverted their statements by saying that there were 12 police officials, whereas PW16 SI Sansar Singh, second IO of the case has stated that there were 10 police officials at the spot.
22. So, there are material contradictions in the testimony of police officials present at the spot with regard to number of police officials present at the spot. Some have said there were 12 police officials, some said 11 and the second IO of the case has stated that there were 10 police officials at the spot.
23. There is also another glaring discrepancy in the testimony of the witnesses. As per case of prosecution, PW3 SC No. 223/17/09 State Vs. Raju @ Rajul @ Riyazuddin Page No.11/14 ASI Krishan Pal had taken rukka to the police station. He has stated that he had gone to police station on a bus along with rukka and returned to the spot in bus. But his statement has been controverted by PW7 Ct. Sunil Kumar who has stated that HC Krishan Pal had gone to police station along with rukka in Tata Sumo.
24. No public person though present near the spot was joined in the investigation. It has come in the statements of the police officials that number of public persons were asked to join the raiding party and IO had made request to those public persons to join them in the investigation, but all of them denied to help the police. No effort had been made by the IO of the case to join them in the proceedings as no notice to any of the public person had been issued. For this reason also, the story put forth by the prosecution against the accused persons, is not believable and cannot be made the basis to convict the accused persons.
25. Thus, from the above statements of the police officials, I find that though the members of the raiding party examined by the prosecution, have made almost similar statements during their examinationinchief before the court, but have spoken differently during their crossexaminations. There are various material contradictions in the statements of the police officials which cannot be said to be minor but are very material to decide SC No. 223/17/09 State Vs. Raju @ Rajul @ Riyazuddin Page No.12/14 the case of the prosecution as the same go to the root of the case of the prosecution. Thus, from the above discussion, it has been established that the statements made by the prosecution witnesses are quite shaky, suspicious and fragile and the same cannot be believed to convict the accused.
26. In the present case, the statements of the police officials have not inspired confidence to believe them to hold that the accused Raju @ Riyazuddin along with his other associates, Naeem Akhtar, Naushad @ Mujaffar, Neeraj @ Neeru (PO) and Muzahid Alam (PO) was apprehended in the manner as stated above. Moreover, in absence of any corroboration to the statements of the police officials, the nature of statements of the police officials do not inspire confidence so that the same can be relied upon. The prosecution could not garner the concrete evidence on record to establish its case against the accused for offences under Section 399/402 IPC.
27. So far as the offence under Section 174A IPC is concerned, Constable Pankaj (CW3) who executed process under Section 82 Cr.P.C and HC Rahisuddin (CW4) who executed process under Section 83 Cr.P.C were not produced in the witness box by the prosecution, so that the accused would have an opportunity to crossexamine them and confront them with his real address, and as such it cannot be said that the processes under Sections 82/83 Cr.P.C were executed at the real SC No. 223/17/09 State Vs. Raju @ Rajul @ Riyazuddin Page No.13/14 address of the accused or he had knowledge of the said proclamation so as to appear on the specified place and specified time as is the requirement of the Section 174A IPC. Hence, the benefit of doubt is given to the accused, and as such it cannot be said that the offence under Section 174A IPC has been established on record beyond reasonable doubt.
28. In view of the aforesaid discussions, I am of the considered opinion that the prosecution has miserably failed to prove its case for charge for offences under Section 399/402 IPC against the accused, besides the charge for offence under Section 174A IPC. He is, accordingly, acquitted of the said charges.
29. The file be consigned to the Record Room.
Digitally signed by RAKESH TEWARI RAKESH Location:
TEWARI karkardooma
Date:
2019.04.15
14:11:33 +0530
Dictated in the Open Court (Rakesh Tewari)
directly to the steno, checked District & Sessions Judge (East)
on the computer screen and Karkardooma Courts, Delhi.
announced in the Open Court
on this 15th day of April, 2019.
SC No. 223/17/09 State Vs. Raju @ Rajul @ Riyazuddin Page No.14/14