Delhi District Court
State vs 1. Raheesh Babu, S/O Bela Pehalwan on 16 December, 2013
IN THE COURT OF SH. RAKESH KUMAR
ADDL. SESSIONS JUDGE : NORTH EAST
KARKARDOOMA COURTS : DELHI
SC No. 29/2012
FIR No. 293/1992
Police Station Welcome
U/Section 147/148/149/186/332/333
353/427/436/307/34 IPC
& Sec.174A IPC
Received in this Court on 30.03.2012.
Reserved for orders on 16.12.2013.
Judgment announced on 16.12.2013.
State V/s 1. Raheesh Babu, S/o Bela Pehalwan
R/o H. No.1146, Street No.37,
Jafrabad, Delhi.
2. Mehboob Ansari, S/o Yakub Ansari,
R/o H. No.490, Indira Puri, Near Mohalla
Jama Masjid, Loni, Ghaziabad, U.P.
:J U D G M E N T:
1.As per prosecution case on 10.12.1992 at about 10.56 a.m at Bagh Wali Masjid Road near B & C Block, Welcome, a mob of 100/150 persons had attacked complainant HC Mahender alongwith one Ct. Avadh Narain. These assailants attacked the complainant and his companion with Lathis, Hockeys and lances and inflicted injuries to those two police officials and also snatched government weapon/SAF of Ct. Avadh Narain.
(State Vs. Raheesh Babu & Anr.) (SC No.29/2012) Page No.1 of pages 11 A case was registered U/Sec.147/148/149/353/427/307/ 394/397 IPC at PS Welcome in FIR No.293/1992. The case was investigated into and initially charge sheet was filed in the Court.
2. It is pertinent to mention here that my Ld. Predecessor vide judgment dated 20.09.2004 acquitted seventy one accused persons out of eighty four accused persons against whom the FIR was registered. In addition to those seventy one acquitted persons eight accused persons were shown as Proclaimed Offenders and five accused persons were shown as to have expired at that time. Thereafter, out of the above eight accused persons, who were declared as Proclaimed Offenders, one accused namely Furkan was arrested and case was further investigated by Delhi Police against said accused and then supplementary charge sheet was filed against him in the court on 26.07.2003. After concluding the trial qua the said accused Furkan, vide judgment dated 04.05.2009 the said accused Furkan was also acquitted by my Ld. Predecessor.
Further out of the above eight accused persons, who were declared as Proclaimed Offenders, two more accused persons namely Raheesh Babu and Mehboob Ansari were also arrested and case was further investigated by Delhi Police against said accused persons and then by way of separate supplementary charge sheets, they were also sent up for trial in the court on 17.03.2012 and 28.10.2012 respectively.
3. After hearing the arguments and on perusal of the material placed on record, a prima facie case U/s 147/148/149/186/332/333/353/427/436 IPC & Sec.307/24 IPC and a separate charge U/s 174 A IPC was framed against the accused Raheesh Babu, to which he pleaded not guilty and claimed trial. It is to be added here that accused Mehboob (State Vs. Raheesh Babu & Anr.) (SC No.29/2012) Page No.2 of pages 11 Ansari was earlier appearing during the main trial and charge U/s 147/148/149/186/332/333/353/427/436 & 307/34 IPC was framed against him vide order dated 01.04.2004 and thereafter, during the stage of prosecution evidence, he started remaining absent and was declared Proclaimed Offender. Said accused was rearrested in this case vide DD No.26A/2012 and an additional charge U/s 174A IPC was also framed against him, to which he pleaded not guilty and claimed trial.
4. In order to prove the guilt of accused persons, prosecution has been able to produce and examined as many as thirteen witnesses in its support except PW1 A SI Manoj Kumar, who was the witness of the fact that the accused Mehboob Ansari (a PO) was apprehended, arrested and produced before the court, the remaining witnesses were the twelve witnesses out of the eighteen witnesses, which were earlier examined during the main trial and now reexamined before this court after the apprehension of accused Raheesh Babu and Mehboob Ansari. These witnesses are PW2 Ram Chander, PW4 Narender Kumar, PW6 HC Avadh Narain, PW7 ASI (Retd.) Ishwar Singh, PW9 Ct. Satpal Singh, PW11 Insp. (Retd.) Ramphal, PW12 ACP (Retd.) Vidya Prakash, PW13 ASI (Retd.) Jagpal Singh, PW14 ASI Rajpal, PW16 Dharamvir Singh, PW17 Ct. Vinod Kumar and PW18 ACP (Retd.) Mahavir Singh Dhaiya. Thereafter, prosecution evidence was closed and the case was fixed for recording of statements of accused persons u/sec. 313 Cr.P.C, during which they controverted all the allegations as alleged against them and submitted that they are innocent and were falsely implicated in this case. They did not desire to lead defence evidence therefore the case was fixed for final arguments.
5. I have heard the rival submissions of both the sides. I (State Vs. Raheesh Babu & Anr.) (SC No.29/2012) Page No.3 of pages 11 have also perused the entire material placed before me and in my considered opinion as regard to the offence U/s 147/148/149/186/332/333/353/427/436 IPC & Sec.307/24 IPC, both the accused persons are entitled for an order of acquittal in their favour as the prosecution has been failed to prove its case against them beyond the shadow of reasonable doubt. Further as regards to the charge U/s 174A IPC, the accused Mehboob Ansari is also entitled for an order of acquittal in his favour in the absence of any evidence to that effect. However, accused Raheesh Babu is liable to suffer an order of conviction U/s 174A IPC as PW1A SI Manoj Kumar while proving the arrest memo and personal search memo Ex.PW1A/1 & Ex.PW1A/2 respectively of accused Raheesh Babu has confirmed that the said accused, who was declared a PO on 30.09.2000 was apprehended, arrested and produced before the court.
6. In the instant case two prosecution witnesses i.e. HC Mahender Singh and HC Avadh Narain were the witnesses of fact, who were forwarded by the police as link between the offence and offenders. However, prosecution has failed to examine one of the said two witnesses i.e. HC Mahender Singh, who could be the relevant and corroborative witness in this case in order to bring the true picture before the court and could identify the accused persons. As per prosecution on 10.12.1992 at about 10.56 a.m at Bagh Wali Masjid Road near B & C Block, Welcome, 100/150 persons attacked the complainant HC Mahender Singh alongwith one Ct. Avadh Narain but non examining of said HC Mahender Singh is fatal to the case of prosecution as in the absence of said witness, the facts remained unproved for want of corroboration with the testimony of other relevant witness i.e. HC Avadh Narain, who (State Vs. Raheesh Babu & Anr.) (SC No.29/2012) Page No.4 of pages 11 is examined as PW6. Even evaluation of the evidence of PW6 HC Avadh Narain reveals that he has stated in his statement that his SAF Riffle was snatched by the assailants on that day. But before seizure of the present riffle in this case by the UP police, there is no mention anywhere in the entire prosecution record/evidence as to what were the particulars of SAF Riffle snatched from the said Ct. Avadh Narain. It was a government weapon, therefore, its number, identification, issuance etc., all would be pursuant to some proceedings and documentation. But no where any document was shown by the prosecution that the looted SAF bore having a particular identification/number/mark. In these circumstances the prosecution can not be allowed to supplant, any weapon of its choice allegedly recovered from anywhere, the original SAF Riffle looted, if any. Hence by any stretch of imagination the allegedly recovered carbine can not be related to carbine which was looted, if any, from Ct. Avadh Narain in the alleged incident and required in this trial.
Identity of both the accused persons also become doubtful in the circumstances when HC Mahender Singh has not been examined by prosecution and the PW6 Ct. Avadh Narain has deposed in his cross examination that he was not knowing accused prior to the incident. His subsequent deposition that he is sure that accused persons were of the same locality/colony, is not convincing/believable specially when he stated that he was not knowing accused prior to the incident. Surprising fact here is that PW6 HC Avadh Narain, PW13 ASI (Retd.) Jagpal Singh, PW14 ASI Rajpal and PW17 Ct. Vinod Kumar kept remembering the name and faces of the present accused despite such a long time. Further so far as the version of Ct. Avadh Narain goes it says that he became (State Vs. Raheesh Babu & Anr.) (SC No.29/2012) Page No.5 of pages 11 unconscious after receiving head injuries and thereupon his SAF Riffle was snatched. Hence this witness does not claim to identify the accused persons.
The identify of the accused persons becomes further doubtful in the circumstance when all the public witnesses examined have not supported the prosecution on the point of identify of the accused persons being the members of the assailants/mob. PW2 Ram Chander in his deposition has stated that he can not identify if accused persons, present in court, were present among the persons, who committed riot. He clarified that he was inside his house when the riots had taken place. Even PW4 Narender Kumar (the then Home Guard at PS Welcome) has also not identified the accused persons while stating that he can not identify any of the accused persons and the person from the crowd as it was dark and he was injured. Similarly, PW9 Ct. Satpal has also not identified the accused persons while stating that none of those persons, who were pelting stones, raising solgans, tried to set the houses of Hindus on fires etc., is present in court. Even PW12 ACP (Retd.) Vidya Prakash did not identify any accused persons while stating that nobody from the accused persons was arrested in his presence. He can not identify the persons, who were members of rioters. Further PW16 Dharamvir Singh has stated in his statement that nothing was happened in his presence and he does not know anything about the facts of the present case. Even PW18 ACP (Retd.) Mahavir Singh Dhaiya could not confidently confirm that the accused persons namely Raheesh and Mehboob are the same persons who were arrested by him alongwith the other persons.
7. In view of the aforesaid, I hereby acquit both the accused (State Vs. Raheesh Babu & Anr.) (SC No.29/2012) Page No.6 of pages 11 persons namely Raheesh Babu and Mehboob Ansari of the charges U/s 147/148/149/186/332/333/353/427/436 IPC & Sec. 307/24 IPC. The accused Mehboob Ansari is also acquitted U/s 174A IPC in the absence of any evidence against him, however, accused Raheesh Babu convicted U/s 174A IPC in view of the uncontroverted and unchalleged testimony of PW1A SI Manoj Kumar.
8. It is ordered accordingly.
9. Bail bond of accused Mehboob Ansari is extended for another period of six months in the light of the directions of Hon'ble High Court of Delhi.
10. Convict Raheesh Babu be now heard on the point of quantum of sentence to be awarded to him.
(Announced in Open court (RAKESH KUMAR)
on 16 th December, 2013) Addl. Sessions Judge/North East
Karkardooma Courts, Delhi
(State Vs. Raheesh Babu & Anr.) (SC No.29/2012) Page No.7 of pages 11
IN THE COURT OF SH. RAKESH KUMAR
ADDL. SESSIONS JUDGE : NORTH EAST
KARKARDOOMA COURTS : DELHI
SC No. 29/2012
FIR No. 293/1992
Police Station Welcome
U/Section 147/148/149/186/332/333
353/427/436/307/34 IPC
& Sec.174A IPC
State V/s Raheesh Babu, S/o Bela Pehalwan
R/o H. No.1146, Street No.37,
Jafrabad, Delhi.
:ORDER ON SENTENCE:
16.12.2013 (at 3.00 p.m)
Present: Sh. Dharam Chand, Ld. Addl. PP for State.
Convict is present in person with counsel.
Arguments on the question of sentence heard.
1. I have given my thoughtful consideration to the rival submissions of Ld. Counsel for the convict as well as of Ld. Addl. PP for the State on the point of quantum of sentence to be awarded to the convict.
2. Vide my judgment of even date, I have already convicted the accused Raheesh Babu Under Section 174A IPC.
3. The convict is praying for mercy on the ground that he is a poor person and already learnt a great lesson as he has already remained in custody in this case for a considerable (State Vs. Raheesh Babu & Anr.) (SC No.29/2012) Page No.8 of pages 11 period i.e. from 18.02.2012 to 21.03.2012 and now he is seeking a chance to get himself reformed. He also undertakes that he will not give any chance of complaint in future. He has a great responsibility to look after his family. He is the sole bread earner for his family. He is not a previous convict. He is praying for mercy on the aforesaid grounds.
On the other hand according to Ld. Addl. PP for the State, the convict has committed serious offence which is against the society at large. Further he remained the Proclaimed Offender for the period of eleven years and do not have any respect for the law and he deserves the stern punishment.
4. Sentencing is a very difficult process. At one end there is a question of personal liberty and at the same time on the other hand the question of larger interest of society is involved.
It has been very aptly indicated in Dennis Councle MCGDautha Vs. State of Callifornia (402 US 183: 28 L.D. 2d 711) that, "no formula of foolproof nature is possible that would provide a reasonable criterion in determining a just and appropriate punishment in the infinite variety of circumstances that may affect the gravity of the crime. In the absence of any foolproof formula which may provide any basis for reasonable criteria to correctly assess various circumstances germane to the consideration of gravity of crime, the discretionary judgment in the facts of each case, is the only way in which such judgment may be equitably distinguished."
In 2008 X AD (S.C.) 645 in case titled as Siriya @ Shri Lal Vs. State of Madhya Pradesh it has been held that, "In operation of Sentencing System, law should adopt corrective machinery or the deterrence based on factual matrix - Facts (State Vs. Raheesh Babu & Anr.) (SC No.29/2012) Page No.9 of pages 11 and given circumstances in each case, the nature of the crime, in manner in which it was planned and committed, the motive for commission of the crime, the conduct of the accused, nature of weapons used and all other attending circumstances are relevant in award of sentence - Sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy in law. ....... In each case, there should be proper balancing of aggravating and mitigating circumstances on the basis of relevant circumstances in a dispassionate manner."
In Sevaka Perumal etc Vs. State of Tamil Nadu (1991 (3) SCC 471) it was held that, "It is, therefore, the duty of every court to award proper sentence having regard to the nature of offence and the manner in which it was executed or committed etc. The contagion of lawlessness would undermine social order and lay it in ruins. Protection of society and stamping out criminal proclivity must be the object of law which must be achieved by imposing appropriate sentence. Therefore, law as a corner-stone of the edifice of "order" should meet the challenges confronting the society.
Friedman in his "Law in Changing Society" stated that, "State of criminal law continues to be - as it should be - decisive reflection of social consciousness of society". Therefore, in operating the sentencing system, law should adopt the corrective machinery or the deterrence based on factual matrix.
5. Keeping in view the entire facts and circumstances of the case, I have come to the conclusion that interest of justice demands that the convict should be given a chance to get (State Vs. Raheesh Babu & Anr.) (SC No.29/2012) Page No.10 of pages 11 himself reformed and therefore, the convict, who is already behind the bar for a considerable period, is awarded sentence u/s 174A IPC to undergo rigorous imprisonment for the period already undergone by him in this case. Order on sentence is passed accordingly. The convict be set at liberty if he is not required to be detained in any other case. Bail bond of convict, if any, stands discharged. Copy of the judgment and order be given to the convict free of cost.
6. File be consigned to Record Room after completion of necessary formalities.
(Announced in Open court (RAKESH KUMAR)
on 16 th December, 2013) Addl. Sessions Judge/North East
Karkardooma Courts, Delhi
(State Vs. Raheesh Babu & Anr.) (SC No.29/2012) Page No.11 of pages 11