Delhi District Court
State vs Mohammad Akram on 7 December, 2024
IN THE COURT OF ADDITIONAL SESSIONS JUDGE (FTC)-02, SOUTH
DISTRICT, SAKET COURTS, DELHI
PRESIDED OVER BY : SH. VISHAL PAHUJA
CNR No. DLST01-002316-2017
STATE VS. MOHAMMAD AKRAM AND OTHERS
FIR NO. 564/16
PS: SAKET
U/S: 186/353/307/34 IPC
& U/S 25/27 OF THE ARMS ACT
State
Versus
1. Mohammad Akram,
s/o Sh. Mohammad Khursid,
r/o Village Gwarka, Teh-Tawdu,
PS Tawdu, Distt. Nuh Mewat,
Haryana.
2. Sahun @ Kala (Proceedings abated)
s/o Sh. Subhan Khan,
r/o Village Rithad,
PS Nagina, Distt. Nuh Mewat,
Haryana.
3. Wasim (Proclaimed Offender) ,
s/o Jafru,
r/o Village Rithad, PS Nagina,
District Nuh Mewat,
Haryana.
4. Salmu @ Dilshad @ Sallu @ Sahil (Proclaimed Offender),
r/o Village Rithad, PS Nagina,
Dist. Nuh Mewat, Haryana. .... Accused Persons
DATE OF INSTITUTION : 23.11.2016
DATE OF JUDGMENT/ ORDER : 07.12.2024
FINAL ORDER : Acquitted
JUDGMENT
BRIEF STATEMENT OF THE FACTS FOR DECISION:
1. This is the prosecution of accused persons namely Mohammad Akram, Sahun @ Kala, Wasim and Salmu @ Dilshad @ Sallu @ FIR No. 564/16, PS Saket State v. Mohd. Akram and others Page 1/13 Sahil pursuant to charge sheet filed by police station Saket, u/s 186/353/307/34 Indian Penal Code (hereinafter referred as IPC) and u/s 25/27 of The Arms Act subsequent to the investigation carried out by them in FIR No. 564/16.
2. Brief facts of the case are that on receipt of DD no. 13B dated 25.08.2016, SI Durgadas along with Ct. Sher Singh reached at the spot i.e. Lado Sarai, Old MB Road, near Honda Service Station where other police officials were also present and HC Avnish Kumar handed over the custody of accused Mohd. Akram to SI Durgadas along with black cartridge belt having six live cartridges and one L shape master key along with mobile phone make Lava colour Black. Statement of HC Avnish Kumar was recorded. On the statement of HC Avnish Kumar, present FIR was registered.
3. As per the statement of HC Avnish Kumar he along with other police officials namely HC Praveen, HC Mukesh, Ct. Surender, Ct. Arun and Ct. Mahmood were on patrolling duty on 25.08.2016 in view of the theft of vehicles at Lado Sarai and they were present there in civil uniform. HC Avnish Kumar along with Ct. Surender were standing on the motorcycle no. DL4SCB8739 stationed at tyre shop at Old MB road and HC Praveen and HC Mukesh were standing at PNB Bank, Lado Sarai and Ct. Mahmood and Ct. Arun were standing at Bank road. At about 04.45 AM, three motorcycles came out from Reliance Fresh wali road one by one. Riders of the first motorcycle was signaled to stop but they did not stop the motorcycle. Thereafter, the second motorcycle make Apache whereon one person was sitting was signaled to stop but he didn't stop and in order to stop him the FIR No. 564/16, PS Saket State v. Mohd. Akram and others Page 2/13 police officials stationed their motorcycle in front of that motorcycle and during this course, the rider of that motorcycle tried to escape after leaving his motorcycle and while running away the said person asked the third motorcyclist who was on the bullet motorcycle "Harun goli chala". On this, the person who was sitting on the bullet motorcycle took out the country made pistol from his wearing shirt and fired on the police officials. The police officials however, managed to save themselves. On this, the person who was sitting on the bullet motorcycle fled away on his motorcycle towards MB road and HC Avnish along with Ct. Surender apprehended the person who was came on the Apache motorcycle. In the meantime, HC Praveen and HC Mukesh came from behind and chased and followed the accused persons who were sitting on the bullet motorcycle but they fled away from the spot. The motorcyclist who was apprehended by HC Avnish and Ct. Surender was named as Akram. The investigation in the present case commenced upon the statement/complaint of HC Avnish.
4. During the investigation, one of the accused namely Mohammad Akram was arrested. Various exhibits were seized by the Investigating officer and statement of the witnesses were recorded.
After the conclusion of the investigation carried out in the FIR no. 564/16, police filed the charge sheet against the accused namely Mohd. Akram for commission of offence U/s 186/353/307/34 IPC and u/s 25/27 of The Arms Act.
5. Vide Order dated 23.11.2016, Ld. Metropolitan Magistrate concerned took cognizance of the offences qua the accused Mohd.
FIR No. 564/16, PS Saket State v. Mohd. Akram and others Page 3/13Akram and he was supplied with the charge sheet and other relevant documents in compliance to section 207 Cr.P.C. Thereafter, the present matter was received by way of committal to the Court of Sessions on 23.12.2016.
Subsequently, accused Sahun @ Kala was arrested and supplementary charge sheet qua him was filed before the court and the same was received by way of committal to the court of sessions on 25.02.2017. Copy of the same was supplied to the other accused as well.
During investigation, accused Wasim and Salmu @ Dilshad could not be arrested and remained absconded. Eventually, they were declared proclaimed offender and supplementary charge sheet qua them was also filed and received by way of committal to the court of sessions on 25.04.2023. Copy of the same was supplied to the other accused as well.
6. During the pendency of the proceedings, accused Sahun @ Kala got expired and proceedings against him were abated vide order dated 16.02.2023.
CHARGE
7. Vide order dated 03.06.2023, charge for the offences punishable u/s 186/353/307/34 IPC and u/s 27 of The Arms Act r/w section 114 IPC and u/s 25 of The Arms Act was framed by this court against the accused Mohammad Akram who pleaded not guilty and claimed trial.
FIR No. 564/16, PS Saket State v. Mohd. Akram and others Page 4/13MATERIAL EVIDENCE IN BRIEF:
8. The prosecution in support of present case has examined 2 (two) witnesses in total that are discussed as follows:-
9. PW-1 HC Avnish Kumar is the star witness and complainant in the present case who deposed in view of his previous statement i.e. Ex. PW1/7 and reiterated the same facts in his examination in chief recorded before the court during the trial. PW1 exhibited on record the sketch of the recovered cartridges vide sketch memo Ex.PW1/1 and the seizure memo as Ex.PW1/2. PW1 further deposed that SI Durga Das also seized the master key, Apache motorcycle bearing no. DL-5SAH-6775, mobile phone and black belt vide seizure memos Ex.PW1/3 to Ex.PW1/6 respectively. PW1 also exhibited on record the site plan as Ex.PW1/8, arrest memo of accused Mohd. Akram as Ex. PW1/9, his personal search memo was conducted vide memo Ex. PW1/10, his disclosure statement was recorded as Ex. PW1/11. PW1 also exhibited on record six live cartridges as Ex.P1 (colly), one black belt of cartridge wherein six cartridges were fitted as Ex.P2, one 'L' shape key as Ex.P3, one mobile phone make Lava as Ex.P4. This witness identified the accused Mohd. Akram in the court during the trial. PW1 was cross examined on behalf of accused.
10. PW2 Inspector Durga Das deposed more or less on the same lines as that of PW1 HC Avnish Kumar and also relied upon the document exhibited in his testimony. PW2 also exhibited on record tehrir as Ex.PW2/1 and his supplementary disclosure statement as Ex.PW2/2. This witness also relied upon the documents admitted by FIR No. 564/16, PS Saket State v. Mohd. Akram and others Page 5/13 accused in his statement recorded u/s 294 CrPC. PW2 was cross examined on behalf of accused.
11. During trial accused Mohd. Akram have admitted documents while recording his statement u/s 294 Cr.P.C. i.e. FIR No. 564/16, PS Saket along-with certificate and endorsement on the tehrir as Ex.A1, DD no.13B dated 25.08.2016, PS Saket as Ex.A2, DD no.5 dated 27.08.2016 PS Punhana and DD dated 27.08.2016 PS Nagina, District Mewat as Ex.A3, complaint u/s. 195 Cr.P.C. as Ex.A4, DD no.26A dated 26.12.2016 PS Saket as Ex.A5, Kalandra u/s. 41.1 (d) Cr.P.C PS Hauz Khas along-with its connected document as Ex.A6, FSL report no. FSL2016/F-9232 dated 28.12.2016 as Ex.A7 and Sanction qua you u/s. 39 of the Arms Act as Ex.A8.
12. Prosecution did not lead any other witness as prosecution witness, hence PE was closed vide order dated 12.11.2024.
STATEMENT OF ACCUSED MOHAMMAD AKRAM U/S 313 Cr.P.C.:
13. Statement of accused recorded separately U/s 313 Cr.P.C in which all the incriminating circumstances appearing in evidence were put to him. The accused controverted and denied the allegations levelled against him. Accused did not opted to lead defence evidence.
ARGUMENTS:
14. Ld. Additional PP for State has argued that prosecution witnesses have supported the case of prosecution and their testimony FIR No. 564/16, PS Saket State v. Mohd. Akram and others Page 6/13 has remained unrebutted. It is further submitted that the recovery has also been effected from the possession of the accused which has been duly proved on record. That on a combined reading of testimony of prosecution witnesses, offences U/s 186/353/307/34 IPC and u/s 27 of the Arms Act r/w section 114 IPC and u/s 25 of The Arms Act are proved against the accused Mohammad Akram beyond reasonable doubt.
15. On the other hand, Ld. Counsel for accused has stated that there is no legally sustainable evidence against the accused Mohammad Akram. It is further argued that there are material discrepancies and contradictions in the testimony of prosecution witnesses who are the police witnesses which is not supported by any independent public witness, hence, their testimony is highly unreliable. It is further submitted that the recovery of the case property has also not been proved beyond reasonable doubt. Also the prosecution has failed to prove its case beyond reasonable doubt. Hence, the accused Mohammad Akram deserves to be acquitted.
FINDINGS:
16. Arguments adduced by Ld. Additional PP for State and Ld. Defence Counsel for the accused has been heard. Evidences and documents on record perused carefully.
17. I have bestowed my thoughtful consideration to the rival submissions made before me. Accused Mohammad Akram is indicted for the offences u/s 186/353/307/34 IPC and u/s 27 of The Arms Act FIR No. 564/16, PS Saket State v. Mohd. Akram and others Page 7/13 r/w section 114 IPC and u/s 25 of The Arms Act.
18. Section 186 IPC provides punishment for causing obstruction to any public servant while discharging of his public functions. Section 353 IPC provides punishment for assault or using of criminal force to a person being public servant in the execution of his duty as such or with intend to prevent or deter that person from discharging his duty as public servant. Section 307 IPC provides punishment for attempt to murder.
19. After appreciating the evidence and going through the testimony of the prosecution witnesses this Court finds the accused Mohammad Akram not guilty for any offence charged herein and he deserve acquittal for the following reasons:-
20. Prosecution has examined two witnesses namely HC Avnish Kumar as PW1 and Insp. Durga Das as PW2 in order to prove its case. Bare perusal of the testimony of the aforesaid witnesses reveals that there are several material discrepancies and contradictions which renders their depositions highly reliable and doubtful to be acted upon.
21. During cross-examination, PW1 was questioned by the Ld. Defence Counsel with respect to recording of departure entry while leaving for patrolling but he could not state if any such entry was made by him. PW2 IO Inspector Durgadas has also not produced or exhibited on record any departure entry to show that PW1 was on patrolling duty or was present at the place of incident as alleged on the date of incident.
FIR No. 564/16, PS Saket State v. Mohd. Akram and others Page 8/1322. Another glaring discrepancy in the story of the prosecution is that the associate of accused has fired a bullet aiming at the police officials as per PW1 but admittedly no empty cartridge case has been recovered from the spot by the police. PW1 during his cross- examination stated that despite search, no empty cartridge case and bullet could be recovered from the spot. PW1 was confronted with his previous statement Ex.PW1/7 where the fact of search efforts made by the police to recover the empty cartridge case was not found recorded therein. Meaning thereby, no bullet has been fired in this case and a doubt is created in version of the PW1.
23. Further, PW1 during his cross-examination could not tell the registration number of the bullet motorcycle on which the associate of accused after firing the bullet has absconded. He could not even tell the particulars such as make, model or colour of the motorcycle. As per PW1, HC Praveen and HC Mukesh followed the person who was on bullet motorcycle but none of the said witness had mentioned the registration number or the other particulars of the motorcycle in their statement recorded u/s 161 CrPC. Above all, PW1 during his cross- examination stated that no wireless message was sent regarding the accused persons who had fled away from the spot. It is not believable on the part of the Law Enforcement Agency that the message is not flashed on wireless when two of the police officials allegedly chased and followed one of the motorcyclist after he fired on the police officials and fled away from the spot.
24. PW1 during his cross-examination stated that HC Praveen reported the incident in the PS by going there directly and no PCR call FIR No. 564/16, PS Saket State v. Mohd. Akram and others Page 9/13 was made with respect to the incident. Aforesaid claim of the PW1 is contrary to the DD no. 13B dated 25.08.2016 which says that HC Praveen gave the information vide telephone and asked for Sr. Officer to visit the spot.
25. PW1 in his examination-in-chief stated that a black colour belt was found tied on the waist of accused Mohammad Akram containing six live cartridges and one master key in L shape from his pocket was recovered during his cursory search. Same were seized vide seizure memo Ex.PW1/2 and Ex.PW1/3 respectively. During his cross- examination PW1 stated that IO called one or two public persons to join the investigation but the said persons refused to join. On the contrary, PW2 IO Inspector Durgadas, during his cross-examination stated that no public person was found available at the spot. Admittedly, the aforesaid documents does not bear the signature of any independent public person as witness to the recovery proceedings. It is not disputed that the arrest of the accused and the recovery has been effected at a public place and no sincere efforts have been made by the police officials to join the public witness. Non-joining of independent public person creates dent in the story of the prosecution and recovery effected cannot be said to be proved beyond reasonable doubt. Moreover, it is very unusual and difficult to believe that a person is carrying live cartridges with him without possessing any pistol for firing the same. In this regard reliance is being placed on the case law reported as "Anoop Joshi Vs. State" 1992(2) C.C. Cases 314(HC).
26. PW2 IO Inspector Durgadas during his cross-examination admitted that he had not mentioned the position of police personnel in FIR No. 564/16, PS Saket State v. Mohd. Akram and others Page 10/13 the site plan Ex.PW1/8 as to where they were positioned when the firing was made. The position of police officials at the time of incident was an important and material aspect that should have been reflected in the site plan. Further as per PW1 HC Avnish Kumar the accused Mohamamd Akram fell from the motorcycle while he was intercepting him and the accused ran away from there who was chased and at a distance he was apprehended whereas the site plan Ex.PW1/8 reflects the place at point A where accused along-with his motorcycle was apprehended. Now as per PW1 the accused left the motorcycle and ran away from there and was apprehended at a distance which refers to two different places which is in complete contradiction to the situation depicted in the site plan.
27. The discrepancies and the contradictions appearing in the testimony of PW1 and PW2 as discussed above makes their testimony blemished and tainted. Thus, in the absence of corroboration by testimony of any independent public witness, the unreliable testimony of PW1 and PW2 does not inspire confidence of the court.
28. It is pertinent to note that the Court of Ld. Magistrate concerned has taken the cognizance of the offences u/s 186/353/307/34 IPC and 25/27 of The Arms Act on the basis of the charge-sheet filed vide order dated 23.11.2016. The order sheet dated 07.12.2016 of the Court of Ld. Magistrate recorded that complaint u/s 195 CrPC was not received by then and the same is received later on that is recorded in the order sheet dated 08.12.2016. Meaning thereby, the cognizance in the present matter has not been taken on the complaint u/s 195 CrPC as required by law.
FIR No. 564/16, PS Saket State v. Mohd. Akram and others Page 11/1329. The offence charged against the accused Mohammad Akram is u/s 186/353/307/34 IPC and u/s 25/27 of the Arms Act. Section 195 CrPC says that no court shall take cognizance of any offence punishable u/s 186 IPC except on the complaint in writing of the public servant. Thus, the cognizance in this case has been vitiated. The law is very much settled on this aspect that non compliance of section 195 Cr.P.C. is such a defect which cannot be cured and its non compliance renders the trial itself void ab-initio. Reliance is placed upon judgment passed by Hon'ble Supreme Court of India titled as Saloni Arora v. State (NCT of Delhi), (2017) 3 SCC 286.
30. The Hon'ble High Court of Delhi in the judgment titled as Sushil Sharma and anr. v. State and Anr., Crl. REV. P.418/2008 , held in paragraph 14 that the cognizance u/s 186 IPC cannot be taken without the complaint u/s 195 Cr.P.C. even if the complaint is filed along with other sections of IPC or any other statue. In view of the settled position of law as discussed above, the trial in this case has also become void ab-initio. Thus, in view of the technical defect as observed above, accused Mohammad Akram cannot be held guilty for any of the offence charged against him.
CONCLUSION
31. In view of the discussion above, this Court is of the view that the prosecution has miserably failed to prove its case beyond reasonable doubt, hence, the accused cannot be held guilty in this case for any of the offence charged herein. Accordingly, accused namely Mohammad Akram is hereby acquitted of all the charges levelled FIR No. 564/16, PS Saket State v. Mohd. Akram and others Page 12/13 against him in the present case.
Digitally signed by VISHALVISHAL PAHUJA PAHUJA Date:
2024.12.07 16:14:28 +0530 ANNOUNCED IN THE OPEN (VISHAL PAHUJA) COURT ON 07.12.2024 ASJ (FTC) -02, South, Saket Courts, Delhi Containing 13 pages all signed by the presiding officer.Digitally signed by VISHAL
VISHAL PAHUJA PAHUJA Date:
2024.12.07 16:14:37 +0530 (VISHAL PAHUJA) ASJ (FTC) -02, South, Saket Courts, Delhi.FIR No. 564/16, PS Saket State v. Mohd. Akram and others Page 13/13