Delhi District Court
State vs 1. Hafizul (On Bail) on 15 December, 2014
IN THE COURT OF SH. SANJAY SHARMA : SPECIAL JUDGE (NDPS) / ADDL. SESSIONS JUDGE, (NORTH-EAST): KARKARDOOMA COURTS, DELHI SC No. : 20(I)/07 FIR No. : 190/07 PS : Khajuri Khas U/Sec. : 399/402 IPC & 25/54/59 Arms Act Case ID : 02402R0473372007 State Versus 1. Hafizul (on bail) S/o Sh. Mohd. Rashid R/o Village Sadulabad, Nasbandi Colony, Loni, Ghaziabad, U.P. 2. Shakeel Khan (on bail) S/o Sh. Haider Khan R/o 56, Husain Vihar, Vijay Vihar, Loni, Ghaziabad, U.P. 3. Chunnu (P.O.) S/o Nishar Ahmad R/o Husain Vihar, Vijay Vihar, Loni, Ghaziabad, U.P. 4. Javed Ahmad Ansari (P.O.) S/o Bashir Ahmad Ansari R/o Husain Vihar, Vijay Vihar, Loni, Ghaziabad, U.P. 5. Rafiqul (P.O.) S/o Rahis R/o 885, Gali No. 12, A-Block Ist Pusta, Sonia Vihar, Delhi Date of Institution : 30.07.2007 Date of reserving order : 15.12.2014 Date of Judgment : 15.12.2014 JUDGMENTFIR No. 190/07 State Vs. Hafizul & Ors. Page No. 1/17
1. On 26.04.2007 at about 9.00 p.m., PW-9 SI Vikram Singh received an intelligence from a secret informer in the police station Khajuri Khas that 4-5 persons alongwith illegal arms and weapons would assemble at Yamuna Bank, IIIrd Pusta, Sonia Vihar, Delhi for making preparation to commit dacoity at E-Block, Sonia Vihar, Delhi and If immediately raided, they could be apprehended. He made requisite enquiry from the secret informer and satisfied himself.
2. PW-9 SI Vikram Singh conveyed the secret information to SHO through telephone, who directed him to take immediate action. He constituted a raiding party comprising himself, PW-4 HC Amar Singh, PW-3 Ct. Ajit Singh, PW-7 Ct. Amit, PW-2 Ct. Bhagmal and PW-5 HC Sompal. Thereafter, he made an entry regarding secret information and departure vide DD No. 55-B. PW-5 HC Sompal was in plain clothes and the remaining police officials were in police uniform. They had taken arms and ammunitions, and search lights from police malkhana.
3. PW-9 SI Vikram Singh reduced the secret information into writing and departed from police station vide DD No. 55-B Ex. PW9/A at about 8.05 p.m. on 26.04.2007. At about 8.25 pm, he alongwith accompanying police officials and secret informer reached at third pusta thokar, Sonia Vihar. He made request to 4-5 passers-by to join the raiding team but none of them agreed and left the spot without disclosing their names and addresses and no notice could be served on the said persons for want of time.
FIR No. 190/07 State Vs. Hafizul & Ors. Page No. 2/174. PW-9 SI Vikram Singh inspected the spot and thereafter, he positioned the members of the raiding team around the place of information. He instructed PW-5 HC Sompal and secret informer to hide themselves behind bushes near Yamuna thokar and overhear conversation and instructed him to give signal to raiding team by lighting the torch of mobile phone. At about 8.40 p.m., accused Hafizul, Chunnu, Javed, Shakeel and Rafiqul reached separately near Yamuna thokar, Sonia Vihar near bushes and started talking to each other. PW-5 HC Sompal saw that accused persons were sitting and discussing to commit a dacoity at E-Block, Sonia Vihar, Delhi.
5. At about 9.00 p.m., PW-5 HC Sompal gave signal with the light of his mobile phone and after his signal, PW-9 SI Vikram Singh and other members of the police team warned accused persons to surrender themselves but they started running in different directions. PW-9 SI Vikram Singh and the members of the raiding team chased them. PW-9 SI Vikram Singh with the help of PW-4 HC Amar Singh apprehended accused Rafiqul and recovered one torch and screwdriver from pocket of his trouser. He prepared a pulanda of screwdriver and torch with the help of a cloth piece and sealed it with his seal having impression 'VSC' and seized it vide seizure memo Ex. PW4/A bearing his signature at point B. PW-3 Ct. Ajit Singh apprehended accused Shakeel and recovered one iron rod Ex.PW9/2 from his possession.
FIR No. 190/07 State Vs. Hafizul & Ors. Page No. 3/176. PW-9 SI Vikram Singh prepared a pulanda of iron rod with the help of a cloth piece and sealed it with his seal having impression 'VSC' and seized it vide seizure memo Ex. PW2/5 bearing his signature at point B. PW-7 Ct. Amit apprehended accused Chunnu and recovered one buttondar knife in closed condition from right pocket of his trouser. He prepared a sketch of buttondar knife Ex. PW2/3 recovered from accused Nishar @ Chunnu bearing his signature at point B and thumb impression of accused Chunnu at point C. He prepared a pulanda of buttondar knife recovered from accused Chunnu with the help of a cloth piece and sealed it with his seal having impression 'VSC' and seized it vide seizure memo Ex. PW2/4 bearing his signature at point B.
7. PW-2 Ct. Bhagmal apprehended accused Javed and recovered one buttondar knife from right pocket of his trouser. PW-9 SI Vikram Singh prepared a sketch of the buttondar knife Ex.PW2/1 recovered from accused Javed bearing his signature at point B and thumb impression of accused Javed at point C. He prepared a pulanda of buttondar knife recovered from accused Javed with the help of a cloth piece and sealed it with his seal having impression 'VSC' and seized it vide seizure memo Ex.PW2/2 bearing his signature at point B. PW-5 HC Sompal apprehended accused Hafizul and recovered one country made pistol (CMP) which was concealed under the right side waist of his trouser and one live cartridge was recovered from the pocket of his trouser.
FIR No. 190/07 State Vs. Hafizul & Ors. Page No. 4/178. PW-9 SI Vikram Singh prepared a sketch of the country made pistol (CMP) and live cartridge Ex. PW2/6 bearing his signature at point B and his thumb impression at point C. He prepared a pulanda of country made pistol and live cartridge with the help of a cloth piece and sealed it with his seal having impression 'VSC' and seized it vide seizure memo Ex. PW5/A bearing his signature at point B. The seal after use was handed over to PW-5 HC Sompal.
9. PW-9 SI Vikram Singh prepared rukka Ex. PW9/B and handed it over to PW-2 Ct. Bhagmal for registration of FIR at 12.35 a.m. on 27.04.2007. At about 1.05 a.m., PW-1 HC Ravinder Singh, Duty Officer, PS Khajuri Khas recorded case FIR Ex.PW1/2 on receipt of rukka from PW-2 Ct. Bhagmal after recording kayami DD No. 36-A and handed over a carbon copy of FIR and rukka in original to PW-2 Ct. Bhagmal to hand over to PW-10 ASI Kanwar Pal for further investigation. After registration of FIR, PW-2 Ct. Bhagmal handed over a carbon copy of FIR and rukka in original to PW-10 ASI Kanwar Pal at about 2.15 a.m.
10. PW-10 ASI Kanwar Pal with PW-2 Ct. Bhagmal reached at the spot where PW-9 SI Vikram Singh handed him over the cloth parcels and documents and custody of the accused persons. He prepared a site plan Ex.PW10/A at the instance of PW-9 SI Vikram Singh and after interrogation, he arrested accused Javed vide arrest memo Ex.PW2/7 and recorded his disclosure statement Ex.PW10/B. FIR No. 190/07 State Vs. Hafizul & Ors. Page No. 5/17
11. PW-10 ASI Kanwar Pal arrested accused Shakeel vide arrest memo Ex.PW3/A, conducted his personal search vide personal search memo Ex.PW3/B and recorded his disclosure statement Ex.PW3/C. He arrested accused Rafiqul vide arrest memo Ex.PW4/B, conducted his personal search vide personal search memo Ex.PW4/C and recorded his disclosure statement Ex.PW4/D. He arrested accused Hafizul vide arrest memo Ex.PW5/B, conducted his personal search vide personal search memo Ex.PW5/C and recorded his disclosure statement Ex.PW5/D. He arrested accused Chunnu vide arrest memo Ex.PW7/A, conducted his personal search vide personal search memo Ex.PW7/B and recorded his disclosure statement Ex.PW7/C.
12. On 26.04.2007, PW-9 SI Vikram Singh deposited three sealed parcels sealed with the seal bearing impression 'VSC', one screwdriver and one torch in the police malkhana vide sl. no. 1509 and a copy of the relevant page containing the said entry is Ex.PW8/A. On 24.05.2007, PW-6 Ct. Shiv Kumar, as per direction of PW-9 SI Vikram Singh, deposited the sample parcels with FSL, Rohini vide RC No. 35/21 Ex.PW8/B and acknowledgement receipt Ex.PW8/C. According to FSL (Ballistic) Report Ex.PW10/D, country made pistol (CMP) Ex.PW5/P1 was in working condition and the said cartridge Ex.PW5/P2 was a live cartridge and the said country made pistol and live cartridge are firearm/ammunition under the Arms Act, 1959.
FIR No. 190/07 State Vs. Hafizul & Ors. Page No. 6/1713. PW-11 Sh. Dheeraj Kumar, Additional DCP-I, North- East, Delhi perused the documents, including Ballistic Report, Statement of Witnesses and thereafter, he accorded sanctioned under section 39 of the Arms Act, 1959 for prosecution of the accused Hafizul and the said sanction is Ex.PW11/A.
14. On completion of investigation, accused Hafizul, Chunnu, Shakeel, Javed Ahmad Ansari and Rafiqul were charge-sheeted under section 399/402 IPC & 25 Arms Act.
15. On appraisal of material on record, accused Hafizul, Chunnu, Shakeel, Javed Ahmad Ansari and Rafiqul were charged under section 399 and 402 IPC. Accused Mohd. Hafizul, Javed Ahmad Ansari and Chunnu were separately charged under section 25 Arms Act. All accused persons pleaded not guilty to the charges and claimed trial.
16. During the evidence, the prosecution examined 11 witnesses as under:
The witnesses Description of the witnesses PW-1 HC Ravinder Duty Officer, PS Khajur Khas PW-2 Ct. Bhagmal Member of the raiding team/recovery witness PW-3 HC Ajeet Singh Member of the raiding team/recovery witness PW-4 HC Amar Singh Member of the raiding team/recovery witness PW-5 HC Sompal Singh Member of the raiding team/recovery witness PW-6 Ct. Shiv Kumar Parcel depositor PW-7 HC Amit Member of the raiding team/recovery witness PW-8 HC Pramod Kumar In-charge, malkhana PW-9 SI Vikram Singh In-charge, Raiding team PW-10 SI Kunwar Pal Investigating Officer PW-11 Addl. DCP Accorded sanction U/s. 39 Arms Act Dheeraj Kumar, (N/E) FIR No. 190/07 State Vs. Hafizul & Ors. Page No. 7/17
17. On completion of prosecution evidence, incriminating evidence was put to accused Hafizul and Shakeel as required under section 313 Cr.P.C. They have pleaded innocence and claimed false implication. They stated that they were lifted from their respective houses and framed in this case.
18. The defence has not examined any witness in defence evidence.
19. I have heard Sh. I.H. Siddiqui, Ld. Addl. PP for the State and Sh. R.S. Kashyap, Advocate for the accused Hafizul and Sh. Mohd. Zahid, Advocate for the accused Shakeel and considered the material on record.
20. Sh. I.H. Siddiqui, Ld. Addl. PP for the State submitted that the prosecution has examined the members of the raiding team and they have proved that the accused persons on 26.04.2007 at about 9.00 p.m. at Yamuna thokar, IIIrd Pusta, Sonia Vihar, Delhi were making preparation to commit dacoity in Sonia Vihar, Delhi in a secluded and deserted place and they attempted to escape therefrom on being challenged by the police team and arms and ammunitions as well as implements used for committing such offence were recovered from them. He submitted that the testimony of the members of the police team is cogent, consistent and reliable. He submitted that the accused persons have not given any explanation regarding their presence in a dark place located in a secluded area alongwith arms and ammunitions and implements.
FIR No. 190/07 State Vs. Hafizul & Ors. Page No. 8/1721. Sh. I.H. Siddiqui, Ld. Addl. PP for the State further submitted that accused Hafizul was found in possession of a working country made pistol and a live cartridge and the prosecution has proved sanction Ex.PW11/A for his prosecution under section 39 of the Arms Act. He submitted that the accused persons had assembled to commit dacoity and therefore, they are liable to be held guilty under section 399 and 402 IPC. He submitted that accused Hafizul is also liable to be held guilty under section 25 of the Arms Act for possessing arms and ammunitions without license.
22. Sh. R.S. Kashyap, Ld. defence counsel submitted that the prosecution has failed to prove its case beyond doubt. He submitted that accused Hafizul was picked up from his house and framed in this case. He submitted that no public witness was associated at the time of search and seizure proceedings despite availability. He submitted that the country made pistol and live cartridge were planted upon the accused Hafizul. He submitted that the case of the prosecution suffers from inherent contradictions and material discrepancies/lapses rendering it fragile.
23. Sh. Mohd. Zahid, Ld. counsel for the accused Shakeel submitted that the accused was falsely implicated in this case. He submitted that accused is a TSR driver and he has no criminal antecedents. He also referred the depositions of the members of the raiding team to contend that the case of the prosecution is not worth reliance.
FIR No. 190/07 State Vs. Hafizul & Ors. Page No. 9/1724. I have carefully analysed the evidence on record.
25. In order to sustain a charge under section 399 of the Indian Penal Code, the prosecution is required to prove the following ingredients:
(i) Accused persons were 5 or more in number;
(ii) They were making a preparation;
(iii) The preparation was to commit dacoity.
26. The essential ingredients of the offence under section 402 of the Indian Penal Code are as follows:
(i) There was an assembly of 5 or more persons;
(ii) The purpose of assembly was committing dacoity;
(iii) Accused was a member of the assembly.
27. Therefore, the prosecution has to prove that the accused persons had assembled at Yamuna thokar, IIIrd Pusta, Sonia Vihar, Delhi and they were making preparation to commit dacoity and further, the purpose of assembling was to commit dacoity.
28. On close scrutiny of the prosecution evidence, it is evident that the case of the prosecution suffers from such material contradictions, inconsistencies and lapses rendering it wholly unreliable.
29. The prosecution has not been able to prove that any secret information was received or reduced into writing in rojnamcha register and conveyed to senior officers of police. Constitution of the raiding party and its presence at the spot is also in great doubt. The prosecution has also failed to prove that such raid was conducted on the date, time and place and the accused persons were apprehended in the manner with the arms and tools as alleged by it.
FIR No. 190/07 State Vs. Hafizul & Ors. Page No. 10/1730. According to PW-9 SI Vikram Singh, he received the secret information at about 7.30 p.m. from a secret informer and thereafter, he informed the SHO about the secret information through telephone. He maintained his stand in his cross- examination that at that time SHO was not in the police station. He stated that SHO was informed about the secret information through telephone and SHO was not in the police station when he departed from the police station. However, PW-7 Ct. Amit has a different story. PW-7 Ct. Amit stated that at that time, SHO and SI Vikram Singh were present in the police station.
31. According to PW-9 SI Vikram Singh, he had informed SHO about the secret information through telephone who directed him to take immediate action and thereafter, he constituted the raiding team in the police station. The prosecution has not examined the then SHO to prove that he was informed about the secret information and he had given any direction to PW-9 SI Vikram Singh to constitute a raiding team and conduct a raid.
32. It will be relevant to state that PW-9 SI Vikram Singh had taken with him as many as 5 police officials at the time of the raid. It cannot be believed that such a large number of police officials can be permitted to leave the police station to conduct a raid to apprehend dacoits without permission of senior officers of police.
FIR No. 190/07 State Vs. Hafizul & Ors. Page No. 11/1733. According to PW-9 SI Vikram Singh, he reduced the secret information into writing and departed from the police station alongwith raiding team and secret information at about 8.05 p.m. vide departure entry DD No. 55-B Ex.PW9/A. However, the rojnamcha register containing the said DD number was neither produced nor proved during the trial.
34. According to PW-9 SI Vikram Singh, he received the secret information that 4-5 persons would assemble at IIIrd Pusta, Sonia Vihar to plan dacoity at Sonia Vihar and the said persons would also be having illegal arms and weapons with them. However, PW-2 Ct. Bhagmal stated in his cross- examination that HC Sompal and HC Amar Singh were having arms and remaining police officials were without arms. It cannot be believed that in such a case where the suspected persons were likely to assemble with arms and ammunitions, only 2 members out of 6 members will be having arms and ammunitions.
35. According to PW-9 SI Vikram Singh, they had taken necessary arms and ammunitions and search lights as per the entry in malkhana register. He reaffirmed his statement in his cross-examination that by stating that police team collected arms and ammunition and search lights while departing police station and appropriate entries were made in the malkhana register. He stated that every member of the raiding team signed malkhana register acknowledging articles issued to him. He was issued pistol by MHC (M) against acknowledgement.
FIR No. 190/07 State Vs. Hafizul & Ors. Page No. 12/1736. However, malkhana register not produced at the time of trial. PW-8 HC Pramod Kumar, In-charge, malkhana appeared before the Court at the time of trial. He has not deposed that such arms and ammunitions were issued to the members of the raiding team.
37. There are contradictions regarding the time when the raiding team departed from the police station and reached at the spot. PW-2 Ct. Bhagmal stated that raiding team departed at 8.25 p.m. and reached at the spot at 8.40 p.m. PW-4 Ct. Amar Singh stated that they left the police station at about 8.40 p.m. and reached at the spot at 9.00 p.m. PW-7 Ct. Amit stated that they departed from the police station at 8.05 p.m. and they reached at the spot at about 8.15 p.m. PW-9 SI Vikram Singh stated that they departed from the police station at 8.05 p.m. and reached at the spot at 8.40 p.m.
38. The case of the prosecution is that all the members of the raiding team except PW-5 HC Sompal Singh were in uniform whereas PW-4 HC Amar Singh stated in his cross- examination that Head Constables and Constables were in civil uniforms and senior officers were in police uniforms.
39. There are contradictions as to whether the accused persons assembled after arrival of the raiding team at the spot or the raiding team reached at the spot after assembling of the accused persons. The case of the prosecution is that the raiding team took position near the spot and thereafter, accused persons reached there at about 8.40 p.m. FIR No. 190/07 State Vs. Hafizul & Ors. Page No. 13/17
40. However, PW-4 Ct. Amar Singh stated that the accused persons were present at the spot when the raiding team reached at the spot. PW-5 HC Sompal Singh supported him by stating that accused persons were already sitting there when he reached near bushes. He stated that when he reached near bushes he saw 5 persons were sitting there.
41. PW-5 HC Sompal Singh is the star witness of the prosecution. He heard the conversation of the accused persons. He has not stated in his examination-in-chief as to what the accused persons were discussing. He has not stated the conversation heard by him. According to him, he was at a distance of 10-12 steps from the accused persons behind the bushes. PW-9 SI Vikram Singh stated that the accused persons were sitting at a distance of 5-6 meters in the bushes from HC Sompal Singh. It does not appeal to reason that PW-5 HC Sompal Singh could hear whispering of the accused persons from a distance of 5-6 meters.
42. There are contradictions regarding the time when the raiding team left the spot. PW-2 Ct. Bhagmal stated that the raiding team left the spot at about 4.30 a.m. PW-3 Ct. Ajit Singh stated that the raiding team left the spot at 3.00 a.m. PW-4 Ct. Amar Singh stated that the raiding team left the spot at around 1.00 a.m.-1.30 a.m. PW-5 HC Sompal Singh also stated that raiding team left the spot at about 1.00 a.m.-1.30 a.m. However, the case FIR was registered at 1.05 a.m. and PW-10 ASI Kunwar Pal stated that he reached at the spot at 2.15 a.m. FIR No. 190/07 State Vs. Hafizul & Ors. Page No. 14/17
43. All the police officials of the raiding team were from police station Khajuri Khas. However, they did not state in sync the distance between the police station and the spot. According to PW-3 Ct. Ajit Singh the spot was at a distance of 3 kilometer from the police station and PW-4 Ct. Amar Singh stated that the spot was at a distance of 5 kilometer from the police station and PW-5 HC Sompal Singh stated that the spot was at a distance of 2 kilometer from the police station. However, PW-10 ASI Kunwar Pal Singh, Investigating Officer stated that the spot was at a distance of 1 kilometer from police station.
44. According to PW-2 Ct. Bhagmal, there was darkness at the spot and the documents were prepared under the street- light at a distance of 50 meter from the spot. PW-9 SI Vikram Singh, In-charge of the raiding team stated that the documents were prepared at the spot under the search-light/torches carried by the police team.
45. According to the members of the raiding team, they had gone to the spot through their motor-cycles whereas PW-9 SI Vikram Singh stated that the members of the raiding team reached at the spot in official vehicle.
46. Last but not the least, PW-3 Ct. Ajit Singh stated that the accused persons were taken to police station in TATA-407 which was called from police station at about 2.00 a.m. whereas PW-4 Ct. Amar Singh stated that the accused persons were taken to police station in the vehicle of SI Vikram Singh.
FIR No. 190/07 State Vs. Hafizul & Ors. Page No. 15/1747. There is no arrival entry of PW-10 ASI Kunwar Pal Singh and the other members of the raiding team.
48. There are contradictions regarding the presence of public persons at the spot at the time of raid and arrest of the accused persons. According to PW-2 Ct. Bhagmal, the accused persons were saying that "khajuri mein dakati dalenge" whereas PW-5 HC Sompal stated that the accused persons were discussing for a dacoity at E-Block, Sonia Vihar, Delhi.
49. In the presence of such contradictions/lapses, it will not be appropriate to place reliance on the testimony of the police officials regarding recovery of country made pistol and a live cartridge from accused Hafizul.
50. In view of the afore-said contradictions/lapses in the case of the prosecution, this Court is of the opinion that the prosecution has not been able to prove that accused Hafizul, Shakeel, Javed, Rafiqul and Chunnu had assembled for making preparation for committing dacoity on 26.04.2007 at about 9.00 p.m. at Yamuna Bank, IIIrd Pusta, Sonia Vihar, Delhi.
51. The prosecution has also been failed to prove that accused Hafizul was in possession of a country made pistol and a live cartridge without license in contravention of the provision of Arms Act.
52. Accordingly, accused Hafizul is acquitted from offences under section 399 and 402 of the Indian Penal Code.
53. Accordingly, accused Shakeel is acquitted from offences under section 399 and 402 of the Indian Penal Code.
FIR No. 190/07 State Vs. Hafizul & Ors. Page No. 16/1754. Accused Hafizul is also acquitted from offence under section 25 of the Arms Act, 1959.
Announced in the open court SANJAY SHARMA on this 15th day of December, 2014. Special Judge NDPS (North-East) ASJ:KKD Courts, Delhi.
FIR No. 190/07 State Vs. Hafizul & Ors. Page No. 17/17