Delhi District Court
State vs Naeem on 23 August, 2023
IN THE COURT OF SH. SANJAY SHARMA-II : ADDL. SESSIONS JUDGE-03,
(CENTRAL): TIS HAZARI COURTS, DELHI
SC No. : 33/2023
FIR No. : 456/1997
Under Section : 399/402/186/353/307 IPC & 27 Arms Act
PS : Nabi Karim
Case ID : DLCT01-000668-2023
State Versus Naeem @ Baboo
S/o Mr. Ghasita Ahmed
R/o G-4/69, Sunder Nagri
Delhi.
Date of Institution : 25.01.1999
Date of Arguments : 21.08.2023
Date of Judgment : 23.08.2023
JUDGMENT
INTRODUCTION:
1. The case of the prosecution is that on 21.11.1997 at about 05.20 a.m. in MCD Park, behind Hotel Kabir, Delhi, within jurisdiction of PS Nabi Karim, the accused alongwith the co-accused persons, namely, Charanjit Singh @ Dabu, Ashok Gupta @ Kailash, Dinesh Kumar @ Kallu, Abdul Rehman, Sushil Kumar, Abdul Azim, Vijay @ Sunil, Abdul Salim and Avneesh Tyagi had assembled for the purpose of committing dacoity and they were making preparation for committing dacoity, and they. Thus, he is prosecuted for offences punishable under Section 399 and 402 IPC.
CHARGE-SHEET:
2. On 21.11.1997 at about 04.55 a.m., Insp. M.S. Dwivedi, SHO, PS Nabi Karim alongwith PW-14 Insp. M.C. Meena, Addl. SHO, PS, Nabi Karim, PW-8 SI P. S. Bhardwaj, ASI Vijender Singh, PW-10 HC Tara Dutt Sharma, HC Ram Kishan, HC Parmod Kumar, PW-11 Ct. Ravi Shankar, Ct.
FIR No. 456/1997 State vs. Naeem @ Baboo Page No. 1 of 12 Gobind, Ct. Rajbir, PW-13 Ct. Devender Singh, PW-1 Ct Umesh Kumar, Ct. Suresh and Ct. Suraj Pal was checking vehicles at Y-point, DBG Road in connection with FIR No. 451/1997 under Section 379 IPC pertaining to PS Nabi Karim. At that time, he received a secret information that 9 / 10 boys had assembled in MCD Park, behind Kabir Hotel and were planning to commit dacoity and they were carrying arms and ammunition. If raided, they can be apprehended. He had requested passers-by to join the raiding team but they proceeded on their way without disclosing their names and addresses after expressing genuine excuses. He constituted a raiding party comprising secret informer alongwith aforesaid police officials.
3. On 21.11.1997 at about 05.05 a.m., Insp. M.S. Dwivedi briefed members of the raiding party. He alongwith the raiding party and secret informer reached MCD Park, behind Kabir Hotel where the secret informer pointed towards the boys sitting there as the boys who were planning to commit dacoity. When the said boys sniffed presence of the police, the co- accused, namely, Charantjeet @ Dabu fired at HC Ram Kishan. However, the bullet passed near right ear of HC Ram Kishan. The raiding party managed to apprehend the accused alongwith the co-accused persons. He alongwith the raiding team recovered arms and ammunition from the accused and the co-accused persons. However, separate FIR was registered pertaining to recovery of arms and ammunition. On tehrir of Insp. M.S. Dwivedi, the case FIR was registered under Section 399/402/ 186/353/307 IPC and 25/27 Arms Act. He arrested the accused and the co-accused persons. He conducted investigation. He deposited the case property in police malkhana. He obtained sanction under Section 39 Arms Act. He submitted charge-sheet.
FIR No. 456/1997 State vs. Naeem @ Baboo Page No. 2 of 12 COMMITTAL PROCEEDING:
4. Vide order dated 17.01.2000, the Jurisdictional Magistrate committed the case to the Court of Session. CHARGE:
5. Vide order dated 16.02.2000, the accused was charged for committing offences under Section 399 and 402 IPC to which he pleaded not guilty and claimed trial. ABSCONDENCE OF THE ACCUSED:
6. During trial, the accused absconded and he was declared 'proclaimed offender', vide order dated 01.05.2003. ACQUITTAL OF THE CO-ACCUSED PERSONS:
7. During trial of the co-accused persons, the prosecution examined 16 witnesses. In their statements under Section 313 Cr.P.C., they pleaded innocence and claimed false implication. They were acquitted from charges under Section 399 and 402 IPC, vide judgment dated 14.03.2005. APPREHENSION OF THE ACCUSED:
8. On 22.12.2022, SI Chatar Sain, PS GTB Enclave alongwith ASI Amar Singh, on receipt of secret information, apprehended the accused and produced him before the Court. PROSECUTION EVIDENCE:
9. The prosecution examined 9 witnesses as under:
The witnesses Description of the witnesses PW-1 SI Umesh Kumar Member of raiding team PW-3 Insp. Ghanshyam Arrest witness PW-5 SI Kali Ram Duty Officer, PS Nabi Karim PW-6 Insp. Parmod Gupta Arrest witness PW-8 SI P.S. Bhardwaj Member of raiding team PW-10 SI Tara Dutt Sharma Member of raiding team PW-11 SI Ravi Shankar Member of raiding team PW-13 SI Devender Singh Member of raiding team PW-14 ACP M.C. Meena Investigating Officer FIR No. 456/1997 State vs. Naeem @ Baboo Page No. 3 of 12 NON-EXAMINATION OF OTHER MEMBERS OF RAIDING TEAM:
10. During trial, PW-2 HC Pramod, PW-16 Insp. M.S. Dwivedi, PW-15 ASI Vijender Singh and PW-12 Ct. Ram Kishan expired. The prosecution dropped PW-4 Ajay Kashyap, DCP (Central) and PW-9 Muktesh Chandra, DCP (Central) as they were not relevant qua the accused.
EXAMINATION OF THE ACCUSED PERSONS:
11. Incriminating circumstances appearing in evidence were explained to the accused, as required under Section 313 Cr.P.C. He denied each and every circumstance appearing in evidence against him. He stated that he was lifted from his house one day before the incident in evening. He contended that no handmade pistol was recovered from him. He claimed false implication and pleaded innocence.
APPEARANCE:
12. I have heard arguments of Mr. Amit Dabas, Ld. Addl. PP for the State and Mr. N.K. Jauli, Ld. Legal Aid Counsel for the accused and examined the evidence, oral and documentary.
CONTENTIONS OF THE PROSECUTION:
13. Ld. Addl. PP for the State contended that the prosecution examined members of the raiding team. He contended that members of raiding team unequivocally deposed that the accused was apprehended from the place of incident alongwith 'handmade pistol' and a 'live cartridge' while making preparation for committing dacoity. He contended that the co-
accused, namely, Charanjeet fired at HC Ram Kishan. He contended that the prosecution witnesses categorically deposed regarding recovery of firearms, ammunitions and knives.
FIR No. 456/1997 State vs. Naeem @ Baboo Page No. 4 of 12
14. Ld. Addl. PP for the State contended that the prosecution witnesses identified firearms, ammunitions and knives recovered from the accused persons. He contended that the prosecution witnesses had no enmity with the accused persons. He contended that evidence of the prosecution witnesses is credible and reliable. He contended that there is no contradiction, inconsistency or infirmity in evidence of the prosecution witnesses. He contended that the accused has not given any explanation regarding his presence at a secluded place alongwith arms and ammunitions. He contended that Insp. M.S. Dwivedi made effort to associate independent witnesses. He contended that non-association of any public witness with raiding team cannot be a ground to discard otherwise credible evidence of the prosecution witnesses. He contended that the accused alongwith the co-accused persons was making preparation to commit dacoity and they assembled for purpose of committing dacoity and therefore, he is liable to be held guilty under Section 399 and 402 IPC.
CONTENTIONS OF THE DEFENCE:
15. Mr. N.K. Jauli, Ld. Legal Aid Counsel contended that there are material contradictions in the evidence of the prosecution witnesses. He contended that there is no public witness to search and seizure proceedings. He contended that the prosecution failed to adduce credible evidence to prove that the accused was present at the place of incident or he alongwith the co-accused persons had assembled for making preparation or they were making planning for committing dacoity or they were apprehended with arms and ammunitions. He contended that the accused was falsely implicated. He contended that the prosecution failed to prove its case beyond doubt.
FIR No. 456/1997 State vs. Naeem @ Baboo Page No. 5 of 12 LAW:
16. Statutory provisions applicable to this case are, as under:
"399. Making preparation to commit dacoity.
-Whoever makes, any preparation for committing dacoity, shall be punished with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine."
"402. Assembling for purpose of committing dacoity. -Whoever, at any time after the passing of this Act, shall be one of five or more persons assembled for the purpose of committing dacoity, shall be punished with rigorous imprisonment for a term which may extend to seven years, and shall also be liable to fine."
17. In order to sustain a charge under section 399 IPC, 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 for committing dacoity.
18. The essential ingredients of offence under section 402 IPC are as follows:
(i) There was an assembly of 5 or more persons;
(ii) The purpose of assembly was to commit dacoity;
(iii) Accused was a member of the assembly.
19. Therefore, the prosecution has to prove that the accused alongwith the co-accused persons assembled in MCD Park, behind Kabir Hotel, Nabi Karim, Delhi and they were making preparation to commit dacoity and further, the purpose of assembling was to commit dacoity.
BURDEN OF PROOF:
20. It is a cardinal principle of criminal jurisprudence that the burden of proof is always on the prosecution and the accused is presumed to be innocent unless proved guilty.
FIR No. 456/1997 State vs. Naeem @ Baboo Page No. 6 of 12
21. The prosecution did not examine any public witness to prove apprehension of the accused from MCD Park, behind Kabir Hotel, Nabi Karim, Delhi and recovery of firearm and ammunition from him.
22. The prosecution examined members of the raiding team. The police officials are competent witnesses. Their evidence cannot be doubted on the sole premise that there was no public witness to search and seizure proceedings.
23. Having noticed legal principles governing appreciation of evidence of police officials, let us proceed to examine evidence of police officials.
24. PW-1 Ct. Umesh was a member of raiding team. The relevant part of his deposition is, as under:
"On 21.11.1997, when my posting was at PS Nabi Karim, I alongwith Inspector M.S. Dwivedi, SHO, PS Nabi Karim, Addl. SHO, Mangal Chand Meena, SI P.S. Bhardwaj, ASI Vijender Singh, HC Ram Kishan etc. were present at Y-Point, D.B.G. Road, and were doing vehicle checking. At 4.55 am, a secret information was received by the SHO that 9/10 boys were sitting in the MCD Park behind Kabir Hotel and were planning to commit dacoity. Some passers by were asked to join the raiding party, but they all declined. Without wasting any time, the SHO alongwith the other staff members reached in MCD Park at 5.15 AM. At the pointing out of the secret information, we tried to apprehend those boys sitting in the park. However, one of those boys fired a shot. The police party apprehended all the accused persons.....Accused Naeem was one of them and he was apprehended at the spot. Accused Naeem is present in the court today."
25. Therefore, there is nothing incriminating in the evidence of PW-1 Ct. Umesh except that the accused was one of the persons who were apprehended from MCD Park, behind Kabir Hotel, Nabi Karim, Delhi. He has not deposed that the accused alongwith the co-accused persons were making planning or preparation for committing dacoity.
FIR No. 456/1997 State vs. Naeem @ Baboo Page No. 7 of 12
26. PW-3 SI Ghanshyam conducted investigation qua 'handmade pistol' and 'live cartridge' recovered from the co- accused, namely, Abdul Azim. He has not deposed anything incriminating against the accused.
27. PW-5 HC Kali Ram was Duty Officer at PS Nabi Karim. He proved the case FIR, vide Ex.PW5/A.
28. PW-8 SI P.S. Bhardwaj was a member of raiding team. He is a material witness qua the accused. He deposed, as under:
"On 21.11.1997, I was posted as SI at PS Nabi Karim. On that day at about 05.00 a.m., SHO, PS Nabi Karim informed me that 8-10 persons were sitting in lawn near Kabir Hotel, Nabi Karim and they were planning to commit dacoity. SHO, PS Nabi Karim prepared a raiding party consisting of myself, HC Ram Kishan, Ct. Ravi Shankar, HC Tara Dutt Sharma, ASI Vijander and other police officials. We left PS Nabi Karim and proceed to Kabir Hotel. Secret informer accompanied us. At about 05.00 a.m
- 05.15 a.m., we reached near lawn near Kabir Hotel. Secret informer pointed towards the area where the aforesaid persons were sitting and we took our position at different places. We saw that 8-10 persons were sitting in the lawn and after seeing the police, they started firing towards police party. The said persons tried to escape from the said place. However, we all managed to apprehend 10 of them and we overpowered them. I with the help of Ct. Devender and other police officials apprehended the accused, namely, Naeem, present in the Court. I carried out search of the accused, namely, Naeem and one country made pistol was recovered from his possession. There was an empty cartridge in the said recovered pistol. I prepared sketch of pistol and cartridge which is already Ex.PW8/A. It bears my signature at point 'A'. I kept the said pistol and empty cartridge in a white cloth and converted it into a parcel and sealed it with the seal having impression 'PSB'. I seized the said parcel vide seizure memo Ex.PW8/B. It bears my signature at point 'A'. SHO, PS Nabi Karim prepared tehrir for registration of FIR under Section 399/402/186/353/307 IPC & 25/27 Arms Act.
FIR No. 456/1997 State vs. Naeem @ Baboo Page No. 8 of 12 I prepared separate tehrir in respect of recovery of pistol and empty cartridge from the possession of the accused, namely, Naeem for registration of FIR under Section 27 Arms Act which is already Ex.PW8/D. It bears my signature at point 'A'. After registration of FIR, SHO, PS Nabi Karim arrested the accused, namely, Naeem and other accused persons who were apprehended at the spot.
I conducted separate proceedings in respect of the accused, namely, Naeem regarding recovery of pistol and empty cartridge from his possession. Country made pistols and button actuated knives were also recovered from other accused persons. SHO, PS Nabi Karim interrogated the accused persons and recorded their disclosure statements. The case property i.e. country made pistol and empty cartridge had already been identified by the witness in his testimony dated 14.05.2004 as Ex.PW8/1 and Ex.PW8/2."
29. Therefore, it is evident that he has not deposed that the accused alongwith the co-accused persons was making any preparation for committing dacoity or planning to commit dacoity. He merely deposed that the accused alongwith the co- accused persons started firing towards police team and tried to escape from there. The arms and ammunition recovered from the accused were not sent to FSL for ballistics examination. Moreover, they are material contradictions in his deposition. In his cross-examination, he stated that he was sleeping in his room when Insp. M.S. Dwivedi informed him regarding the secret information. He also stated that other police officials including Ct. Ravi Shankar and Ct. Devender also reached there. This is a material contradiction as the case of the prosecution is that Insp. M.S. Dwivedi had received secret information when he was checking vehicles at Y-point, DBG Road. The evidence of PW-8 SI P.S. Bhardwaj makes the entire case of the prosecution pertaining to receipt of the secret information, constitution of raiding team and apprehension of the accused doubtful.
FIR No. 456/1997 State vs. Naeem @ Baboo Page No. 9 of 12
30. PW-10 HC Tara Dutt Sharma was also a member of raiding team. He has also not stated that the accused alongwith the co-accused persons was making preparation or planning to commit dacoity. He also stated that he was present in police station when Insp. M.S. Dwivedi received secret information. He went to the extent of stating that all the members of the raiding team were present in the police station.
31. PW-11 Ct. Ravi Shankar was also a member of raiding team. He went to the extent of stating that the accused fired one round. It has never been the case of the prosecution that the accused fired any gun-shot at the raiding team. He has not deposed that the accused alongwith the co-accused persons was making any preparation or planning for committing dacoity.
32. PW-13 Ct. Devender Singh was also a member of raiding team. He has also not deposed that the accused alongwith the co-accused persons was making any preparation or planning for committing dacoity.
33. PW-14 Insp. M.C. Meena was also a member of raiding team. He has also not deposed that the accused alongwith the co-accused persons was making any preparation or planning for committing dacoity.
34. On meticulous examination of evidence of the prosecution witnesses, particularly, members of the raiding team, this Court is of the considered opinion that the prosecution has failed to bring home the charges. The prosecution has failed to adduce cogent, credible and reliable evidence to prove that the accused alongwith the co-accused persons assembled for making preparation and planning for committing dacoity. There are material contradictions in the depositions of the prosecution witnesses on all material aspects, as noted above.
FIR No. 456/1997 State vs. Naeem @ Baboo Page No. 10 of 12
35. To reiterate, there is no departure entry pertaining to presence of Insp. M.S. Dwivedi alongwith members of the raiding team at Y-point, DBG Road, Delhi. There is no evidence that the members of the raiding read heard any conversation of the accused and the co-accused persons pertaining to any preparation or planning for committing dacoity. The arms and ammunition recovered from the accused was not sent for ballistics examination. Therefore, the prosecution failed to bring home charges under Section 399 and 402 IPC against the accused.
CONCLUSION:
36. The accused, namely, Naeem @ Baboo is acquitted from offences under section 399 and 402 IPC.
Digitally signedSANJAY by SANJAY SHARMA SHARMA Date: 2023.08.24 11:59:48 +0530 Announced in the open Court SANJAY SHARMA-II on this 23rd August, 2023 Addl. Sessions Judge-03 (Central) Tis Hazari Courts, Delhi FIR No. 456/1997 State vs. Naeem @ Baboo Page No. 11 of 12 State vs. Naeem @ Baboo CNR No.: DLCT01-000668-2023 SC No. 33/2023 FIR No. 456/1997
Under Section 399/402/186/353/307 IPC & 27/54/59 Arms Act PS Nabi Karim 23.08.2023 Present : Mr. Amit Dabas, Ld. Addl. PP for the State.
Mr. N.K. Jauli, Ld. Legal Aid Counsel with the accused.
Vide separate judgment announced in the open Court, the accused, namely, Naeem @ Baboo is acquitted from offences under Section 399 and 402 IPC. The accused is admitted to bail on furnishing personal bond in the sum of Rs. 10,000/- as required under Section 437A Cr.P.C. Personal bond furnished and accepted. Bail bond shall remain in operation for a period of six months. File be consigned to Digitally signed record room. by SANJAY SANJAY SHARMA SHARMA Date:
2023.08.24 12:00:02 +0530 Sanjay Sharma-II ASJ-03, Central District Tis Hazari Courts, Delhi 23.08.2023 FIR No. 456/1997 State vs. Naeem @ Baboo Page No. 12 of 12