Delhi District Court
State vs Furkan @ Furki . . . Accused Persons on 21 January, 2014
IN THE COURT OF SH. T.S. KASHYAP
ADDITIONAL SESSIONS JUDGE-01/SPECIAL JUDGE (NDPS)
SHAHDARA DISTRICT, KARKARDOOMA COURTS, DELHI
Unique I.D. No. : 02402R0446672007
Sessions Case No. : 141/2008
FIR No. : 279/2007
Under Sections : 399/402 IPC & 25/54/59 Arms Act
Police Station : Gokalpuri, Delhi
In the matter of :-
STATE
Versus
1. Furkan @ Furki . . . Accused Persons
S/o Sh. Babu
R/o H. No. 1680, Gali No. 17
New Mustafabad, Delhi
2. Arif @ Mota
S/o Sh. Babu Khan
R/o H. No. 7, Gali No. 2, D-Block, Brijpur, Delhi
3. Gufran
S/o Sh. Babu Khan
R/o H. No. 1680, Gali No. 17
Mustafabad, Delhi
4. Ashwini @ Tinku (Proclaimed Offender)
S/o Sh. Prem Chand
R/o B-50, Gali No. 5
PH-1, Shiv Vihar, Delhi
5. Shahzad (Proclaimed Offender)
S/o Sh. Iqbal
R/o Gali No. 18, New Mustafabad, Delhi
FIR No. : 279/07 Page 1 of 22
Date of Institution : 16/12/08
Date of committal : 19/07/07
Date of reserving judgment : 19/12/13
Date of pronouncement : 21/01/14
JUDGMENT
Brief facts of the prosecution case are that on 25/04/07 during patrolling, ASI Khajan Singh arrested four accused persons namely Ashwini @ Tinku, Arif @ Mota, Furkan @ Furki and Shahjad while they were planning to commit dacoity. He prepared tehrir to the effect that he alongwith HC Rohtash, HC Vijay Singh, Ct Anil Kumar and Ct. Sarvajeet were on patrolling duty. The information that accused persons who are involved in committing robbery, will assemble in DDA Park to plan dacoity and will be carrying arms. He apprised the SHO about the said fact over telephone who ordered for immediate action. Thereafter, IO apprised the facts to 5-6 passersby and requested them to join the raiding party but all of them left giving justified excuse without telling their names and addresses. Thereafter, IO formed a raiding party consisting of patrolling staff. Ct. Anil who was in civil uniform was directed to overhear the talks of the persons assembling there by hiding himself and if appeared that they were planning to commit dacoity then to give signal by raising his hand on head. Members of raiding party were also instructed by the IO that as soon as signal is received from shadow witness, he would give a call and all the gathered persons must be apprehended. Thereafter, IO alongwith accompanying police staff and secret informer proceeded to the DDA Park, Vill: Gokalpur and when they reached at DDA Park, Vill: Gokalpuri, IO instructed all the police officials to take position. At about 7:30 p.m, three young boys came towards Gokalpur village and stood near east side wall of the park and started talking with each other. After five FIR No. : 279/07 Page 2 of 22 minutes two other boys came towards the side of Loni Goalchakkar and stood near the three boys who were already standing there and started talking to each other. At about 7:40 p.m, Ct. Anil Kumar, shadow witness gave signal by raising hand on his head. When all the five boys started walking then IO gave signal to the members of raiding party by saying PAKDO PAKDO then all the five persons started running in different directions. One boy whose name later on was revealed as Arif @ Mota was apprehended by the IO. Accused Shahzad was apprehended by Ct. Saravjeet. Accused Furkan @ Furki was apprehended by HC Rohtas. Fourth boy namely Ashwini @ Tinku was apprehended by Ct. Anil Kumar and the fifth one succeeded in fleeing away by taking benefit of darkness and narrow gali whose name was later on revealed as Gufran. The shadow witness Ct. Anil Kumar apprised the IO that accused Arif @ Mota was saying that dacoity will be committed in Amar Colony. Furkan and Ashwini would guard the spot by standing outside and accused Arif, Shahzad and Gufran would go inside the house and would commit dacoity on the point of katta-knife. One loaded katta was recovered from the possession of accused Arif. One button actuated knife was recovered from the possession of accused Shahzad. One button actuated knife was recovered from accused Furkan. One battery torch was recovered from the possession of accused Ashwini @ Tinku. Accused Ashwini @ Tinku, Shahzad, Arif @ Mota and Furkan @ Furki were formally arrested.
2. On the basis of facts and circumstances a case U/s 399/402 IPC & Sec. 25/54/59 Arms Act was registered.
3. After completion of the investigation, charge-sheet was filed against all the five accused persons U/s 399/402 IPC & Sec. 25/54/59 Arms Act. Supplementary charge-sheet was also filed against accused Gufran who FIR No. : 279/07 Page 3 of 22 was formally arrested on 16/08/07.
4. Ld. Metropolitan Magistrate after supplying the necessary copies to all the five accused persons committed the case to Sessions.
5. Vide order dated 13/03/2009 passed by Ld. Predecessor, accused Ashwini @ Tinku was declared proclaimed offender.
6. My Ld. Predecessor, vide order dated 19/07/10 charged accused Furkan @ Furki, Shahzad, Arif @ Mota and Gufran for the offence punishable U/s 399/402 IPC to which they pleaded not guilty and claimed trial. Accused Shahzad, Arif @ Mota and Furkan @ Furki were separately charged for the offence punishable U/s 25 Arms Act to which they also pleaded not guilty and claimed trial. Vide order dated 13/09/12 accused Gufran was also charged for the offence U/s 174-A IPC to which he pleaded not guilty and claimed trial as he was declared proclaimed offender and was subsequently arrested.
7. During trial, vide order dated 13/03/2013 accused Shahzad was also declared proclaimed offender.
8. The prosecution in support of its case examined as many as 14 witnesses.
(a) The prosecution examined following formal witness:-
i) PW1 ASI Om Prakash deposed that on 25/04/07, he was deputed as Duty Officer from 4:00 p.m to 12:00 midnight.FIR No. : 279/07 Page 4 of 22
On that day at about 9:50 p.m, he received a rukka from HC Vijay Singh sent by ASI Khajan Singh and on the basis of same he recorded the FIR of the present case, copy of which is Ex. PW1/A. He also made his endorsement on rukka Ex. PW1/B and after investigation of FIR, further investigation was entrusted to SI Dharmender.
ii) PW6 Ct. Yashvir Singh deposed that on 28/05/07, he was posted as Constable at PS Gokalpuri. On that day, he received one sealed parcel duly sealed with the seal of KS alongwith FSL form vide RC No. 875/21 and deposited the same in the office of FSL Rohini and handed over the receipt of the same to the MHCM.
iii) PW9 HC Mangal Singh deposed that on 08/12/08 he was posted at SO Branch of Sh. M.R. Gothwal, Addl. DCP/NE, who had granted the sanction in the present case U/s 39 Arms Act to prosecute the accused, Arif @ Mota. He proved the sanction order Ex. PW9/A which bears the signatures of Sh. M.R. Gothwal who expired in the year 2009.
iv) PW10 HC Jeevan Singh deposed that during the period from August 2006 to February 2009, he remained posted as PS Gokalpuri. ASI Khazan Singh (now expired) was also posted there with him. He had worked with him and seen him writing and signing in the usual course of his duties. ASI Khazan Singh was the IO of this case and he had prepared the documents of this case. He has proved rukka Ex. PW1/B, seizure memo of desi katta Ex. PW4/B, FIR No. : 279/07 Page 5 of 22 seizure memo of knife Ex. PW8/A, seizure memo of knife Ex. PW2/B, seizure memo of torch Ex. PW4/C, sketch memo of knife Ex. PW8/B, sketch of knife Ex. PW2/A, sketch of desi katta and cartridge Ex. PW4/A which were in the handwritings of ASI Khazan Singh and also bears his signature at point X.
v) PW12 HC Vikram Singh deposed that on 25/07/07, ASI Khazan Singh deposited a sealed parcel of desi katta with his predecessor MHCM as per entry at Sl. No. 911 of the malkhana register. On 09/10/08, he was posted at PS Gokalpuri and on that day, the result of the sealed parcel was received by him through ASI Ram Prasad alongwith the sealed parcel of the katta duly sealed with the seal of FSL. He handed over the result to the IO/SI Dharmender and placed the sealed parcel of the katta in the malkhana. He made entry in this regard in the relevant column against Sl. No. 911 of the Malkhana register which is Ex. PW12/A.
vi) PW13 ASI Vinod Kumar deposed that on 25/04/07, he was posted as MHCM at PS Gokalpuri. On that day, ASI Khazan Singh had deposited the sealed parcels of a katta, cartridges, two knives and one torch vide copies of their seizure memos. He made entry in the malkhana register at Sl. No. 911 while reproducing the contents of the seizure memos. On the same day, SI Dharmender Kumar had deposited with him the personal search articles of accused persons. He made entry in this regard at Sl. No. 912. On 28/05/07, the parcels of katta and FIR No. : 279/07 Page 6 of 22 cartridge were sent to FSL, Rohini for expert opinion through Ct. Yashbir vide RC No. 25/21 dated 28/05/07. He has also proved Ex. PW13/A regarding relevant entries in the register. He has also proved the photocopy of RC No. 25/21 as Ex. PW13/B.
(b) The prosecution examined the following witnesses of investigation :-
i) PW2 Ct. Sarabjeet Singh deposed that on 25/04/07, he was posted at PS Gokalpuri. On that day, he alongwith ASI Khazan Singh, HC Rohtash, HC Vijay and Ct. Anil were on patrolling duty and were present at Loni Goal Chakkar where secret informer met with ASI Khajan Singh and informed that 4-5 persons would gather at DDA Park, Gokalpuri for the purpose of making plan to commit dacoity at Amar Colony. ASI Khazan Singh conveyed this information to the SHO. IO formed a raiding party consisting of police staff. At about 7:30 p.m, they reached at DDA Park where they made nakabandi at different places as per instructions of IO inside the park. At about 7:35 p.m, three boys came in the park from the side of Gokalpuri village and thereafter two boys came in the park from the side of Loni Goal Chakkar and they gathered near the wall near the main gate and started talking with each other. On the signal given by Ct. Anil, they surrounded those five boys and ASI Khazan Singh warned them to surrender but they started running in different directions. He apprehended accused Shahzad FIR No. : 279/07 Page 7 of 22 on whose formal search, one buttondar knife was recovered. The other three boys were also apprehended by the members of the police party and one succeeded in running away from there whose name was later on known as Gufran. He further deposed that IO prepared the rukka and same was handed over to HC Vijay Singh for registration of the FIR. After registration of FIR, HC Vijay alongwith SI Dharmender to whom the investigation was entrusted came at the spot. IO arrested the four accused persons and their personal search was conducted and their disclosure statements were also recorded. He also proved the arrest memo and personal search memo of accused Shahzad Ex. PW2/C and PW2/D respectively, disclosure statementd of accused Arif, Furkan and Ashwani @ Tinku as Ex. PW2/E, PW2/F and PW2/G respectively were prepared.
ii) PW3 HC Vijay Singh is also one of the members of the raiding party. He also deposed on the lines of PW2 Ct. Sarabjeet.
iii) PW4 HC Anil Kumar is also one of the members of the raiding party. He also deposed on the lines of PW2 Ct. Sarabjeet.
iv) PW5 SI Alok K. Rajan deposed that on 08/11/09, he was posted at PS Gokalpuri. On that day, accused Gufran was arrested by HC Vijay under section 41.1 Cr.P.C and was produced before him. As the accused was proclaimed offender in this case, he arrested him vide arrest memo Ex. PW3/F and his personal search was FIR No. : 279/07 Page 8 of 22 conducted vide memo Ex. PW3/G. He also recorded disclosure statement of accused Gufran vide Ex. PW3/H. He prepared the supplementary charge-sheet and filed the same in the court alongwith FSL result and sanction U/s 39 of Arms Act.
v) PW7 Ct. Rohtash deposed that on 07/11/09, he was posted as Constable at PS Gokalpuri. On that day, he alongwith Ct. Devender and HC Vijay were on patrolling duty and were present at Ganda nala, near Brijpuri pulia where a secret informer met them and informed that one proclaimed offender was standing near Gali No. 20, Naya Mustafabad, Delhi. Thereafter, they alongwith secret informer went at the informed place where at the instance of the secret informer they apprehended one person whose name they came to know as Gufran. HC Vijay interrogated him and on taking his formal search, one iron rod was recovered from his possession. HC Vijay arrested him U/s 41.1(b)(c) Cr.PC vide memo Ex. PW7/A and also taken his personal search vide memo Ex.
PW7/B. Accused Gufran also made his disclosure statement vide Ex. PW7/C. IO also seized the iron rod vide seizure memo Ex. PW7/D.
vi) PW8 HC Rohtash is also one of the members of the raiding party. He also deposed on the lines of PW2 Ct. Sarabjeet.
vii) PW11 Ct. Devender deposed on the lines of PW7 Ct.
Rohtash.
viii) PW14 SI Dharmendra is the second IO of he case. He FIR No. : 279/07 Page 9 of 22 deposed that on 25/04/07, he was posted at PS Gokalpuri and was present in the PS when at the instruction of SHO, the further investigation of the present case was entrusted to him. He collected the copy of FIR and original tehrir from HC Vijay and then he alongwith him reached at the spot i.e DDA Park, Gokalpur village where previous IO/ASI Khazan Singh met them alongwith his staff who produced four accused persons namely Arif @ Mota, Furkan @ Furki, Ashwani @ Tinku and Shahzad before him. Previous IO ASI Khazan Singh had handed over relevant documents and case property in sealed condition to him. Thereafter, he prepared site plan Ex. PW14 at the instance of previous IO. He arrested accused persons namely Ashwani @ Tinku, Shahzad, Arif @ Mota and Furkan @ Furki vide arrest memos Ex.
PW4/G, PW2/C, PW4/E and PW8/C respectively. He also conducted their personal search memos vide Ex. PW4/H, PW2/D, PW4/F and PW8/D respectively. He also recorded disclosure statements of accused Arif, Shahzad, Furkan and Ashwani vide Ex. PW2/E, PW4/D, PW2/F and PW2/G respectively. During investigation, he came to know that accused Gufran was in J/C in case FIR No. 347/07. He moved an application before court concerned for issuance of production warrants against accused Gufran. On 16/08/07, accused Gufran was produced from J/C and he formally arrested him in this case with the permission of the court vide arrest memo Ex. PW14/B. He also recorded disclosure statement of accused Gufran FIR No. : 279/07 Page 10 of 22 vide Ex. PW14/C. On the same day, he also arrested accused Gufran in another case FIR No. 446/07, U/s 457/380 IPC, PS Gokalpuri and obtained one day PC remand. No recovery was affected at the instance of accused Gufran during his police custody remand so he was produced before the court on next day and Ld. Court had discharged him in that case and in the present case also. Thereafter, he recorded statement of HC Vijay and Ct. Anil. Thereafter, he again obtained NBWs against accused Gufran in the present case but he could not be arrested in this case, so he conducted P.O proceedings against him.
9. After closure of the Prosecution Evidence, all the incriminating evidence against the accused persons was put to them in their statement recorded U/s 313 Cr.PC wherein the accused persons pleaded that they have been falsely implicated in the present case and are innocent. However, none of the accused person opted to lead defence evidence.
10. I have heard the submissions from Ld. Addl. Public Prosecutor for State and Sh. Abdul Sattar, Adv for accused Furkan, Gufran and Arif and gone through the record.
11. Ld. Addl. Public Prosecutor for State has submitted that all the relevant/material witnesses have supported the prosecution case and there was no contradiction on material points. PW4 HC Anil Kumar is a shadow witness who heard the conversation between the accused persons regarding the planning of dacoity and manner of execution. All the accused persons FIR No. : 279/07 Page 11 of 22 namely Furkan, Arif and Gufran were facing trial under the Arms Act also. It shows the conduct of the accused persons in support of planning and execution of dacoity. Accused Gufran absconded during the trial and he was also facing the trial under the charge of 174-A IPC. Reason of the delay of trial, accused persons were not regularly appearing in the court during the trial. Other PWs supported the version of PW4. In this case, IO ASI Khazan Singh has expired but all the relevant documents prepared by the IO ASI Khazan Singh were proved by another witness who worked with him during the ordinary course of nature. Addl. DCP also did not appear before the court as he expired but his document i.e sanction order U/s 39 Arms Act was proved by SO who used to work with Addl. DCP during ordinary course of nature. FSL report is also against the accused persons and prosecution successfully proved the case beyond reasonable doubt U/s 399/402 IPC as well as U/s 25 Arms Act also. There is no contradiction on the material points. Accused persons must be convicted in this case. Documents against accused Furkan regarding his previous involvement have also been placed on the record by the IO. No rebuttal was given by the defence counsel on this point. In view of previous involvements and the nature of offence accused persons must be convicted in the present case.
12. On behalf of accused persons it has been submitted by learned counsel that no case U/s 399/402/34 IPC is made out against the accused persons as only four accused persons were arrested from the spot and fifth accused i.e Gufran as alleged was arrested after one year; that recovery is illegal as copy of recovery memo was not given to the accused persons; that no identification mark was put on the alleged recovery of weapons; that no public persons were called from the nearby residential area; that there is no departure or arrival entry of the police officials on record; that FIR No. : 279/07 Page 12 of 22 sanction U/s 39 Arms is also illegal as it was obtained in a routine way; that no proceeding was conducted against accused Gufran by giving publicity in the media till his arrest. No public person was called from residential area despite availability. No sincere effort was made to join public persons in the proceedings. Ld. Counsel for accused persons placed reliance on authority reported as Ram Kishan v State of U.P, Crl. Appeal No. 2649 of 1981 dated 22/11/2005 (Allahabad High Court).
13. As per the prosecution case, ASI Khazan Singh, HC Rohtas, HC Vijay Singh, Ct. Saravjeet and Ct. Anil Kumar were on patrolling duty when the secret informer had given the information that the accused persons were carrying arms and making preparation to commit robbery and ASI Khazan Singh has constituted the raiding party of all the police officials. ASI Khazan Singh has expired and could not be examined. Out of the remaining members of the raiding party, Ct. Saravjeet Singh has been examined as PW2 and in his cross-examination, he stated that he did not remember the departure entry by which he left the police station. He could not tell the description of the secret informer. He admits that he did not ask any public person as to why they were not joining the raiding party. According to him, IO did not give any notice to them for not joining them. He is unable to give colour of the clothes of the accused persons. According to this witness, descriptions and names of the accused persons were not known to them before they gathered. He could not tell the names of three persons who had come from Vill: Gokalpur. He also could not tell the names of other persons who had come from the side of Loni. According to him, Ct. Anil subsequently told that accused Arif @ Mota was saying that they will commit dacoity and accused Furkan and Shahzad will stand as guards and remaining persons will enter and commit dacoity. They did not disclose the place of proposed FIR No. : 279/07 Page 13 of 22 dacoity. This witness was unable to state the place/positions of other police officials. He admits that he did not state in his statement to the IO that IO had given warning to the accused persons to surrender before police party. He did not offer his own personal search to the accused Shahzad prior to taking his search. According to this witness, there was a residential colony at the back side of park but no one was called from the said residential colony to join the investigation. According to him, the knife allegedly recovered from the possession of accused Shahzad was available in the market. He could not tell the number of coloured flowers made on the knife. He claimed that he had told the IO that the knife bearing green and red colour flowers was that knife which was recovered from the accused Shahzad. On confrontation with the statement Ex. PW2/DX, it was found to be not recorded. It is pertinent to note that in his examination-in-chief, this witness has not disclosed which other accused was arrested by which police official. This witness deposed that ASI Khazan Singh asked 4/5 persons to join the raiding party but none agreed and left without disclosing their names and addresses. This witness has deposed that he apprehended accused Shahzad and on taking his formal search one buttondar knife was recovered. According to him, three other boys were apprehended by other members of police party but he has not specified which accused was apprehended by which police official and what was recovered from which of the accused.
14. PW3 HC Vijay Singh has deposed that ASI Khazan Singh asked 4-5 public persons to join the raiding party but none agreed and left without disclosing their names and addresses. He could not apprehend any of the accused but deposed that four accused persons were apprehended by other members of raiding party but he has failed to state which of the accused was apprehended by which of the police official. According to him, the FIR No. : 279/07 Page 14 of 22 accused persons were produced before ASI Khazan Singh alongwith recovered weapons by members of raiding party. According to him, two of the accused persons were found in possession of knife and one was found in possession of katta and fourth was found in possession of torch. This witness has also deposed that on 07/11/09, he alongwith Ct. Rohtash and Ct. Devender were on patrolling duty and were present near Brijpuri Pulia, Nala Road, where secret informer met him and informed that one boy who is a thief and has committed several thefts was standing at Gali No. 20, New Mustafabad, Nala Road and they reached at Gali No. 20 and on pointing out of secret informer accused Gufran known to the witness was apprehended with the assistance of police Constables accompanying him and one iron rod was found in his possession. He was arrested U/s 41.1 Cr.P.C. He made disclosure statement Ex. PW3/A. He also deposed that accused Gufran had absconded from the spot and was apprehended later on in the present case. In the cross-examination, this witness has admitted that public persons were passing in front of wall of the park and there was a residential area behind the park. No one was asked from the residential area to join the investigation. No notice was given to them by the IO. This witness did not apprehend anyone. In cross-examination, he claimed that he has stated in his statement to the IO that ASI Khazan Singh had given warning to the accused persons to surrender before the police party but on confrontation with statement Ex. PW3/DA it was found to be not recorded. He admits that he had not signed any memo prepared by the IO. It is pertinent to note that this witness has failed to disclose which police official has arrested which of the accused and which of the weapon was recovered from which particular accused. He did not sign any memo prepared by the IO and therefore his presence on the spot during the raid appears to be doubtful. Moreover, according to this witness, accused Shahzad and Furkan had to take position outside the house FIR No. : 279/07 Page 15 of 22 at Amar Colony whereas in the rukka/charge-sheet, it is claimed that accused Furkan and Ashwini will guard from outside the Amar Colony house.
15. PW4 HC Anil Kumar has deposed that ASI Khazan Singh asked 4/5 public persons to join the raiding party but none agreed and left without disclosing their names and addresses. According to this witness, accused Arif @ Mota was apprehended by ASI Khazan Singh and accused Ashwini @ Tinku was apprehended by him from whom one battery having two cells was recovered. One accused ran away and remaining two were apprehended by other members of the party but he has not disclosed which accused was apprehended by which of the members of raiding party. According to him, accused Arif @ Mota was found in possession of desi katta and other two accused Shahzad and Furkan was found in possession of buttondar knife. In cross-examination, he stated that accused Shahzad was caught by Ct. Saravjeet but he does not remember the colour of cloths worn by accused Shahzad. He admits that no public person was called at the time of taking personal search of accused. He admits that he did not communicate regarding the receipt of secret information to the DCP on wireless set. The information was not entered in the register. IO requested public persons to join the proceedings but no one has agreed. Names and addresses of public persons who were requested to join the proceedings were not recorded. No notice U/s 160 Cr.P.C was given to any public person. He is unable to state that which of the accused first came at the spot. According to him country made pistol was recovered from accused Arif @ Mota and it was not mentioned on the pistol as to from where it was made. He failed to give the mark of identifications on the knife allegedly recovered from accused persons. He claims to have offered personal search to the accused persons but this fact was not mentioned in the DD entry register. He is unable to state as to FIR No. : 279/07 Page 16 of 22 whose disclosure statement was recorded in the first instance. According to this witness, IO has given information regarding arrest of accused persons to the relatives of accused persons through telephone as well as through HC Rohtas. He does not remember the telephone numbers on which the family members of accused persons were contacted. This witness has no knowledge whether the name of absconding accused was given by the IO to the media or whether any sketch of said accused was prepared or not.
16. PW8 HC Rohtash has deposed that IO asked 4/5 public persons to join the raiding party but no one agreed and left the spot without disclosing their names and addresses. He also deposed that ASI Khazan Singh warned the accused persons to surrender but this fact is not mentioned in the rukka. This witness claims to have apprehended accused Furkan @ Furki from whom one buttondar knife was allegedly recovered whereas Ct. Saravjeet has apprehended accused Shahzad who was also found in possession of one buttondar knife. This witness deposed that accused Arif @ Mota was apprehended by ASI Khazan Singh but he does not state that any country made pistol was recovered from said accused. According to him, no DD entry was made regarding their departure. No message was given on wireless set nor any information was given to DCP. He does not remember whether other police officials were having weapons or not. According to him the police officials did not offer their personal search before conducting search of the accused persons. According to him, IO had informed the family members of accused persons about their arrest but he does not know about those family members. He did not notice whether any public person was present near the park.
17. SI Dharmender PW14 had arrived at the spot subsequent to FIR No. : 279/07 Page 17 of 22 the alleged recovery. Late Sh. M.R. Gothwal, Addl. DCP who gave the sanction U/s 39 Arms Act has already expired.
18. There is no universal rule that testimony of police witnesses should not be relied in absence of public witnesses. However, it is well settled that in case the public witnesses are available the prosecution must show genuine attempt having been made to join the public witnesses as was held in Sadhu Singh v State of Punjab (1997) 3 Crimes 55 (PH). In the present case admittedly, the public persons were available but the IO allowed them to leave without noting their names and addresses and without serving any notice U/s 161 Cr.P.C for refusing to join the investigation. No one was called from the residential colony. The charge-sheet does not show that the IO had given any warning to the accused persons before conducting raid. Admittedly, none of the police officials offered their personal search to the accused persons before effecting the alleged recovery of country made pistol and knife, etc from the possession of accused persons. IO of the case could not be examined as he has expired. The authority relied by Ld. Defence Counsel titled as Ram Kishan v State of U.P, Crl. Appeal No. 2649 of 1981 dated 22/11/2005 (Allahabad High Court) is also applicable on the facts of the case as copies of recovery memos were not given to the accused persons and no independent witness was joined in the alleged recovery. The documents Exs. PW4/G, PW2/C, PW4/E, PW8/C, PW8/D, PW4/F, PW4/H and PW2/B do not bear the signatures of all the members of raiding party. The seizure memo Ex. PW4/Art. 2 bears only signatures of Ct. Anil Kumar and ASI Khazan Singh. ASI Khazan Singh has died and could not be examined and it does not bear the signatures of other two members of raiding party. Similarly seizure memo in respect of knife Ex. PW8/A and PW2/B bears signatures only of ASI Khazan Singh besides HC Rohtash and Ct. Saravjeet separately and FIR No. : 279/07 Page 18 of 22 these documents do not bear the signatures of other two members of raiding party and no justified reason exists for not signing these documents.
19. As per the FSL report No. FSL/2007/F-1875 dated 28/11/07 (which is admissible U/s 293 Cr.PC) in respect of the alleged country made pistol Ex. F1. The same was not in working order and required repairs of fire- mechanism to bring it into working order. Test fire could not be conducted.
20. For failure of the IO to comply with the provisions of Sec. 100(4) Cr.PC, the arrest of the accused persons from the alleged place on the alleged date and time, assembling and making preparation for commission of dacoity as well as alleged recovery of knife and pistol appears to be doubtful. Therefore, accused persons are entitled for benefit of doubt and acquittal. Accordingly, accused Furkan @ Furki, Arif @ Mota and Gufran are acquitted for the offence U/s 399/402 IPC. The country-made pistol was also found to be not in working order as such accused Arif @ Mota and Furkan @ Furki are also acquitted for the offence U/s 25 Arms Act. Accused persons are directed to furnish fresh personal bond in a sum of Rs. 10,000/- in terms of provisions of Sec. 437A Cr.PC within a week.
21. However, the accused Gufran was declared proclaimed offender by Ld. MM and was subsequently arrested U/s 41.1 Cr.PC. PW3 HC Vijay Singh has deposed that he had ran away at the time of alleged raid and was subsequently arrested on 07/11/09 vide kalandra Ex. PW3/A. PW7 Ct. Rohtash also deposed that accused Gufran was arrested vide memo Ex. PW7/A U/s 41.1 Cr.PC. PW11 Devender and PW14 SI Dharmender have also corroborated the said fact and therefore he is held guilty and convicted for offence U/s 174-A IPC. Let accused/convict Gufran be heard separately on FIR No. : 279/07 Page 19 of 22 point of sentence.
Announced in the open court today i.e 21st January 2014 (T.S. Kashyap) ASJ-01/Spl. Judge (NDPS) Shahdra District Karkardooma Court, Delhi FIR No. : 279/07 Page 20 of 22 IN THE COURT OF SH. T.S. KASHYAP ADDITIONAL SESSIONS JUDGE-01/SPECIAL JUDGE (NDPS) SHAHDARA DISTRICT, KARKARDOOMA COURTS, DELHI Unique I.D. No. : 02402R0446672007 Sessions Case No. : 141/2008 FIR No. : 279/2007 Under Sections : 399/402 IPC & 25/54/59 Arms Act Police Station : Gokalpuri, Delhi In the matter of :-
STATE Versus Gufran S/o Sh. Babu Khan R/o H. No. 1680, Gali No. 17 Mustafabad, Delhi ORDER ON SENTENCE Accused/Convict Gufran has been acquitted for the offence U/s 399/402 IPC and convicted for the offence U/s 174-A IPC.
2. I have heard the submissions from Ld. Addl. Public Prosecutor for State and Sh. Abdul Sattar, Adv for convict.
3. Ld. Addl. Public Prosecutor for State submits the delay of the trial of the case was caused due to absence of convict so he does not deserve for any leniency. During the trial convict Gufran absconded and FIR No. : 279/07 Page 21 of 22 declared proclaimed offender by the court, accordingly, he be awarded maximum punishment for the offence U/s 174-A IPC for which has been held guilty.
4. On behalf of the convict it has been submitted by Sh. Abdul Sattar that the convict is a young man and has already suffered much by remaining in JC from 08/11/09 to 15/12/09, 06/03/12 to 19/10/13 and 06/11/13 till date and therefore he be sentenced for the period already undergone by him in J/C.
5. Since convict has already been acquitted for the main offence and has already suffered in J/C from 08/11/09 to 15/12/09, 06/03/12 to 19/10/13 and 06/11/13 till date and therefore interest of justice shall be met if convict is sentenced to the imprisonment for the period already undergone by him in J/C. He is sentenced accordingly. He be released from J/C forthwith, if not required in any other case. Copy of order be given dasti to the convict free of cost. File be consigned to Record Room.
Announced in the open court today i.e 21st January 2014 (T.S. Kashyap) ASJ-01/Spl. Judge (NDPS) Shahdra District Karkardooma Court, Delhi FIR No. : 279/07 Page 22 of 22