Delhi District Court
State vs 1. Azad Singh @ Azad Khan S/O on 5 February, 2011
IN THE COURT OF SH. RAMESH KUMAR - II, LD. ADDITIONAL
SESSIONS JUDGE - 0I : North- East / KARKARDOOMA COURTS:
DELHI.
Case ID Number. 02402R0195072008
Sessions Case No. 16/2008
Assigned to Sessions. 20.03.2008
Arguments heard on 01/02/11
Date of order. 05/02/11
FIR No. 16/2008
State Vs 1. Azad Singh @ Azad Khan s/o
Jabbar Singh r/o Village Sakri
Police Station Jahangira Distt.
Bulland Shahar, U.P.
2. Abid Ali s/o Jabbar r/o H.
No.1212, G. No.46, Jafrabad,
Delhi.
3. Naushad s/o Jameel r/o Gali No.6,
Jafrabad, Delhi.
Police Station New Usmanpur.
Under Section 307/ 353/ 186/ 34 IPC and 27/54/59
Arms Act.
JUDGEMENT
1. Station House Officer of Police Station New Usmanpur had filed a challan vide FIR no. 16/2008 dated 16.01.2008 u/s 307/ 356/332/ 186/ 34 IPC read with section 25/ 27 / 54/ 59 of Arms Act for the prosecution S.C. No. 16/2008 U/s 307/ 353/ 186/ 34 IPC and 27/54/59 Arms Act State Vs. Azad Singh @ Azad Khan and others 1/20 of accused Azad Singh @ Azad Khan, Abid and Naushad in the court of ld. Metropolitan Magistrate and Trial Court after compliance of section 207 Cr. PC committed this case for trial before this court.
2. In brief facts of the case are that on 16.01.2008 at about 3:30 a.m. in gali No.9, 5th Block, in front of House No.610, Balmiki Mandir, Ambedkar Basti, Ghonda, Delhi, accused persons namely Azad Singh, Abid Ali and Naushad obstructed Ct. Ashok Kumar in the discharge of his public duty and assaulted him when he tried to arrest them and accused persons further tried to inflict grievous injury upon the person of Ct. Ashok Kumar with sharp edged weapons i.e. from buttondar knife and country made pistol. Accordingly, accused persons were apprehended and then this case was registered.
3. On the basis of material available on record ld. predecessor of this court framed a charge against accused persons namely Azad Singh, Abid and Naushad for the offences punishable u/s 307/ 353/ 186/ 34 IPC and charges against accused persons namely Azad Singh and S.C. No. 16/2008 U/s 307/ 353/ 186/ 34 IPC and 27/54/59 Arms Act State Vs. Azad Singh @ Azad Khan and others 2/20 Naushad for the offences punishable u/s 27/54/59 Arms Act to which accused did not plead guilty and claimed trial.
4. In order to prove its case prosecution examined 13 witnesses namely PW1 Raju Chandel - public witness - hostile witness, PW2 Ct. Ashok Kumar - complainant, PW3 Ct. Deepak - companion of Ct. Ashok Kumar PW4 Ct. Umesh Kumar - he took the sealed parcels to CFSL, Chandigarh, PW5 Sub-Inspector Sharif Ahmad- 2nd Investigating Officer, PW6 HC Khem Chand - 1st Investigating Officer, PW7 W/ASI Suman Khurana - formal witness being D.O., PW8 Shri Data Ram ACP - formal witness who granted sanction u/s 39 Arms Act against accused persons after perusal of record placed before him, PW9 Sub- Inspector S. Linda - formal witness, PW10 Raj Kumar, X-Ray record clerk - he identify the signature and handwriting of doctor on the X-Ray report. PW11 Dr. Divesh Gulati - he gave opinion on MLC, PW12 ASI Virpal Singh - formal witness, PW13 Dr. Devender Kumar, CMO - he identify the signature and handwriting of Dr. Yogender Kumar Sahu.
5. PW1 Raju Chandel, deposed that on 15.01.2008 around 3:30 a.m. when he was sleeping inside his house, he heard noise 'pakro pakro'. He came down and saw that one person was grappling with Ct. Ashok Kumar and he was possessing a Chhura in his hand and blood was S.C. No. 16/2008 U/s 307/ 353/ 186/ 34 IPC and 27/54/59 Arms Act State Vs. Azad Singh @ Azad Khan and others 3/20 coming from the hand of Ct. Ashok Kumar. He further deposed that he immediately rushed towards him and caught hold the said person from behind and the in the meanwhile several persons of the locality gathered there and two other persons who were in drunken condition were also apprehended. He further deposed that thereafter, SHO took all the three persons with them. He further deposed that nothing was recovered from the accused persons in his presence, however, the seizure memo of the country made pistol is Ex.PW1/A, sketch PW1/B and sketch of Chhura Ex.PW1/C bears his signature at point A. This witness has been got declared hostile by Ld. APP. During his cross examination by Ld. APP for state he denied the recovery of weapons of offence from accused persons in his presence.
6. PW2 Ct. Ashok Kumar is the material witness being the complainant in this case. He deposed that on intervening night of 15.01.2008 & 16.01.2008 when he was on patrolling duty along with two home guard constables namely Deepak and Sunil in Ambedkar Basti New Usmanpur, Delhi and when they reached near Gali No.9, they found S.C. No. 16/2008 U/s 307/ 353/ 186/ 34 IPC and 27/54/59 Arms Act State Vs. Azad Singh @ Azad Khan and others 4/20 accused persons standing there and on seeing the police party accused Azad Singh made gesture of 'Ta Ta' (bye bye). He further deposed that he found suspicion upon their activities when he headed towards them he again made same gesture and on this he along with home guard constables chased them and apprehended them. He further deposed that accused Azad was having dagger and he tried to cause injury upon him by dagger but he was apprehended and his companion accused Naushad was having a country made pistol and he tried to fire upon the police party but he was apprehended before he could fire. He further deposed that someone from the public made a call to PCR. He further deposed that PCR Van and Sub-Inspector Sharif Ahmad along with other police staff reached at the spot. He further deposed that he handed over the dagger as well as country made pistol to the Investigating Officer. He further deposed that Investigating Officer recorded his statement Ex.PW2/A, prepared sketch of weapons Ex.PW1/C and Ex.PW1/B and two sealed pullandas were prepared of the recovered weapons. He further deposed that accused persons namely Azad Singh, Abid Ali and S.C. No. 16/2008 U/s 307/ 353/ 186/ 34 IPC and 27/54/59 Arms Act State Vs. Azad Singh @ Azad Khan and others 5/20 Naushad were arrested vide arrest memo Ex.PW2/B, PW2/C and PW2/D respectively and their personal search memos Ex.PW2/E, PW2/F and PW2/G respectively were prepared by the Investigating Officer. Investigating Officer prepared a rukka and he took the same for registration of the FIR. This witness was cross examined by Ld. APP on certain material points. In his cross examination by Ld. APP he deposed that he deposed wrong statement regarding recovery of weapon.
7. PW3 Ct. Deepak Kumar, DHG, has been got declared hostile by Ld. APP. During his cross examination by Ld. APP he deposed that he appended his signature on seizure memo of both the weapons and he also admits his signatures on sketches of Chhura and country made pistol but denied about the contents of the memos. He also deposed that during intervening night of 15/16 January'2008 he along with Ct. Ashok Kumar and DHG Sunil were on patrolling duty.
8. PW4 Ct. Umesh Kumar is a formal witness. He took sealed pullandas from the malkhana for deposit of same at CFSL, Chandigarh.
S.C. No. 16/2008 U/s 307/ 353/ 186/ 34 IPC and 27/54/59 Arms Act State Vs. Azad Singh @ Azad Khan and others 6/20
9. PW5 Sub-Inspector Sharif Ahmad is a material witness being Investigating Officer. He deposed that he along with Ct. Ashok reached at the spot and he prepared site plan on the instance of Ct. Ashok Kumar Ex.PW5/A and recorded statement of Ct. Ashok Kumar, Ct. Deepak, Ct. Sunil and HC Khem Chand. He further deposed that thereafter,, he reached at GTB Hospital where he found three accused persons namely Azad Singh, Abid and Naushad were under treatment and after their medical treatment they were got discharged and they were arrested by him and their personal search memos were also prepared. He further deposed that he deposited the case property in the malkhana which were handed over to him by HC Khem Chand and exhibits were sent to CFSL, Chandigarh and he collected complaint u/s 195 Cr.P.C. from Assistant Commissioner of Police, Sh. Data Ram.
10.PW6 HC Khem Chand being 1st Investigating Officer is also a material witness. He deposed that on receipt of call regarding quarrel, he along with Ct. Deepak reached at the Balmiki Mandir, Ambadkar Basti, Gali S.C. No. 16/2008 U/s 307/ 353/ 186/ 34 IPC and 27/54/59 Arms Act State Vs. Azad Singh @ Azad Khan and others 7/20 No.9, Delhi where Ct. Ashok Kumar, Ct. Sunil and Ct. Deepak, DHG and many other persons were present. He further deposed that he recorded statement of Ct. Ashok Kumar vide Ex.PW2/A. He further deposed that he checked the katta and found live cartridge in the katta and he prepared sketch of katta and cartridge and took measurements. He further deposed that he had mentioned description of cartridge and Katta in sketch which is Ex.PW1/B and seized the same vide seizure memo Ex. PW1/A. He further deposed that that he prepared sketch of knife and took measurement Ex.PW1/C and he also seized the knife vide seizure memo Ex.PW1/A. He further deposed that he prepared the rukka Ex.PW6/A and sent Ct. Ashok Kumar for registration the FIR.
11.PW7 W/ASI Suman Khurana is a formal witness being duty officer. She recorded FIR Ex.PW7/A u/s 307/353/186/34 IPC and 25/27 Arms Act, Police Station New Usmanpur, Delhi.
12.PW8 Shri Data Ram, ACP, New Friends Colony, Delhi is the witness who granted Sanction u/s 39 of Arms Act for the prosecution of accused persons.
S.C. No. 16/2008 U/s 307/ 353/ 186/ 34 IPC and 27/54/59 Arms Act State Vs. Azad Singh @ Azad Khan and others 8/20
13.PW9 Sub-Inspector S. Linda deposed that on 16.01.2008 he received a call from control room regarding quarrel and when they reached at Gali No.9, at Ghonda, one Naushad who was injured met them there and he was taken to hospital by the PCR and got admitted in the hospital.
14.PW10 Raj Kumar, X-Ray Record Clerk, GTB Hospital appeared in the witness box and he identified the signature of Dr. Deepshikha on X- Ray Report of Ashok Kumar Ex.PW10/A.
15.PW11 Dr. Divesh Gulati, Sr. Resident (Ortho), GTB Hospital appeared in the witness box and he proved the nature of injury as 'simple' at point X of MLC Ex.PW11/A.
16.PW12 ASI Virpal Singh states on intervening night of 15/16.01.2008 he was posted at PCR, North East and he received a call that some thieves have been apprehended near Balmiki Mandir, Ambedkar Basti.
S.C. No. 16/2008 U/s 307/ 353/ 186/ 34 IPC and 27/54/59 Arms Act State Vs. Azad Singh @ Azad Khan and others 9/20 He went there in PCR van. He had taken Abid to GTB Hospital in PCR van and admitted him there.
17.PW13 Dr. Devender Kumar, CMO, GTB Hospital identify the signature and handwriting of Dr. Yogender Kumar Sahu on MLC Ex.PW11/A.
18.After prosecution evidence, statement of all accused persons u/s 313 Cr. P.C. was recorded wherein all accused persons denied all circumstances and evidence put to them and claimed that they are innocent and have been implicated falsely as they were lifted from their respective houses by the police. On question on leading any evidence in their defence, all the accused persons refused. ARGUMENTS
19.Ld. APP for state submitted that case relates to offence under section 307/353/186/34 IPC and 27/54/59 Arms Act. He further states that PW2 Ct. Ashok Kumar, complainant, had deposed that when he was on patrolling duty with two other Delhi Home Guard Constables, S.C. No. 16/2008 U/s 307/ 353/ 186/ 34 IPC and 27/54/59 Arms Act State Vs. Azad Singh @ Azad Khan and others 10/20 accused persons made gesture 'Ta Ta' upon them and on suspicion this witness chased the accused persons they were apprehended,during this course they tried to cause injury upon them with knife and country made pistol. PW1 Raju Chandel and PW3 Ct. Deepak Kumar also partly corroborated the evidence of PW2. He further deposed that PW1, PW2 and PW3 are most material witnesses who support the prosecution case on point of recovery of weapons and also explained the role of accused persons.
20.Ld. APP further states that accused Naushad tried to caused injury upon complainant by Chhura and accused Azad Singh tried to commit fire upon complainant with country made pistol. Ld. APP further states that accused Abid Ali was arrested while running but charge u/s 27 Arms Act was framed against accused Naushad and Azad Singh.
21.Ld. APP further states that since recovery in the present case are affected and all the officials witnesses have supported the case of prosecution. Hence, he prayed to convict the accused persons under S.C. No. 16/2008 U/s 307/ 353/ 186/ 34 IPC and 27/54/59 Arms Act State Vs. Azad Singh @ Azad Khan and others 11/20 the section for which they have been charged.
22.On the other hand, Ms. Tanuja Bose, Amicus Curiae for accused persons argued that accused persons were arrested at the interval of 10 to 15 minutes. Ld. counsel for accused further argued that notification u/s 39 of Arms Act has not been proved by the prosecution. She further argued that accused remained in the JC for more than two years. Hence, she prayed for their acquittal.
23.Arguments heard. Record perused. On perusal of record it is revealed that the present case was registered on the statement of PW2 Ct. Ashok Kumar wherein this complainant had stated that when he was on patrolling duty on intervening night of 15/16 January'2008 at about 3:30 a.m. in Ambedkar Basti, New Usmanpur, Delhi he found suspicious activities of all three accused persons. On this he chased them and all the accused persons ran inside of a gali but were apprehended by police party. A dagger was recovered from possession of accused Azad Singh. This complainant further stated that accused S.C. No. 16/2008 U/s 307/ 353/ 186/ 34 IPC and 27/54/59 Arms Act State Vs. Azad Singh @ Azad Khan and others 12/20 Naushad tried to fire upon police party from his country made pistol but he was apprehended before he could fire. This witness did not state in the court who took him to the hospital. Further it is revealed that MLC of Ct. Ashok Kumar shows that he himself went to GTB Hospital and got conducted his medical examination at 9:30 p.m. on 16.01.2008. No explanation for delay in conducting his medical examination is shown on record. PW1 Raju Chandel who is the public witness in front of whose house the incident took place and this witness states that at the time of incident he was sleeping in his room upstairs of his house suddenly he heard 'pakro pakro' then he came down and saw one person was having chhura in his hand was grappling with Ct. Ashok Kumar. On this he rushed towards him and caught him hold from behind but this witness further states in his statement that nothing was recovered from accused persons in his presence. This witness further states that country made pistol was not recovered in his presence but he had signed seizure memo and sketch of country made pistol on asking of police. In his cross examination by Ld. APP for state, this witness denied that accused Naushad has caused any injury to S.C. No. 16/2008 U/s 307/ 353/ 186/ 34 IPC and 27/54/59 Arms Act State Vs. Azad Singh @ Azad Khan and others 13/20 complainant or that he was having chhura when he was apprehended by police. This witness further denies that after the apprehending of accused Naushad his co-accused Azad Singh took out country made pistol and pointed towards Ct. Ashok. He further denies that another co-accused Abid Ali was apprehended by police officials when he was running after jumping the wall of Ambedkar Basti. Further this witness clearly refuse that police had recorded his statement mark 'X' at his instance.
24.On perusal of record it is further revealed that PW3 Ct. Deepak Kumar Home Guard. This witness is also hostile and does not support to the case of prosecution on any point. Further in cross examination by Ld. APP he states he has not made any statement to the Investigating Officer. Further, on question of his signature on memos he admits that he does not know the contents of the said memos. PW5 Sub-Inspector Sharif Ahamd who is 2nd Investigating Officer of this case. On perusal of his statement, it is revealed that he prepared site plan at the instance of Ct. Ashok Kumar and this witness also recorded the S.C. No. 16/2008 U/s 307/ 353/ 186/ 34 IPC and 27/54/59 Arms Act State Vs. Azad Singh @ Azad Khan and others 14/20 statement of Ct. Ashok, Ct. Deepak Kumar and HC Khem Chand. Thereafter, he left to GTB Hospital where he found three accused persons namely Azad Singh, Abid and Naushad under medical treatment. This witness further deposed that these accused persons were after their treatment discharged and they were arrested. On perusal of record, no medical report of these accused persons found on record.
25.PW6 HC Khem chand is the first Investigating Officer and handed over all the proceedings to Sub-Inspector Sharif Ahmad. On the question of identity of accused this witness partly support to the case of prosecution. Since in the present case no public witness come forward to be witness nor the police officials attempt to call to any public person to be a witness for recovery of weapons and arrest of accused persons.
26.Hon'ble Suprme Court in 'Megha Singh Vs. State of Haryana, 1995 Cri. L.J.' in which accused was arrested by HC of Police who recovered pistol and cartridges from accused- It was on his complaint that formal FIR S.C. No. 16/2008 U/s 307/ 353/ 186/ 34 IPC and 27/54/59 Arms Act State Vs. Azad Singh @ Azad Khan and others 15/20 registered - HC being complainant should not have proceeded with investigation - Such practice should not be resorted to so that there may not be any occasion to suspect fair and impartial trial.
" It is the prosecution case that on 29th September, 1985 HC Siri Chand (PW3) and Ct. Bhup Singh (PW2) and other police personnel were present on the Kacha route connecting village Faggu with village Rohan. At about 12.00 noon the accused was spotted while coming from the side of village Rohan. As the accused after seeing the police party tried to cross through the field, the police party became suspicious and he was intercepted and the HC Siri Chand PW3 thereafter searched the person of the accused and on search a countrymade pistol Ex.P1 was recovered from the right dub of his chadar and three live cartridges Exts. P2 to P4 wee also recovered from the right side pocket of his shirt. The said pistol and the cartridges were possessed by the accused without any valid licence. After recovery of the said pistol and the cartridges the same were seized vide recovery memo Ex.PC and a rukka Ex.PD with regard to the recovery was prepared and sent to the police station on the basis of which FIR Ex.PD/1 was recorded by SI of Police Charanjit Singh. The prosecution case sought to be proved by the said HC Siri Chand PW3 and Bhup Singh PW2. No independent witness was examined to support the prosecution case."
27.Further in case titled as 'Pawan Kumar Vs. Delhi Administration, 1989 Cri.L.J.127', Hon'ble Delhi High Court has held that large number of people were present at the time of recovery- No independent witness produced and no attempt made to join independent witness -Statement of official witnesses could not be S.C. No. 16/2008 U/s 307/ 353/ 186/ 34 IPC and 27/54/59 Arms Act State Vs. Azad Singh @ Azad Khan and others 16/20 relied.
" 6.On the second aspect also, Miss Khanna has something to say, PW11, ASI Jagbir Singh is the person who in the company of PW 15, Kalam Singh and PW21 Kanchan Dev, HC apprehended accused Pawan Kumar and from his possession the knife (Ex.P1) was recovered. On the recovery memo, Jagbir Singh obtained the signatures of Kalam Singh and Jai Bhagwan constables. Jai Bhagwan has not been produced. Kalam Singh had to admit that at the time of the arrest and recovery of the knife, there was a lot of rush of public at bus-stop near Subhash Bazar. According to Jagbir Singh, he did not join any public witness in the case while according to Kalam Singh no public person was present there. It hardly stands to reason that at a place like a bus-stop near Subhash Bazar; there would be no person present at. A crucial time like 7.30 p.m. when there is a lot of rush of commuters for boarding the buses to their respective destinations. Admittedly, there is no impediment in believing the version of the Police officials but for that the prosecution has to lay a good foundation. At least one of them should have deposed that they tried to contact the public witnesses or that they refused to join the investigation. Her is a case where it re no efforts was made to join any public witness even though number of them were present. No plausible explanation from the side of the prosecution is forthcoming for not joining the independent witnesses in a case of a serious nature like the present one. It play be that there an apathy on the part of the general public to associate themselves with the Police raids or the recoveries but that apart, at least the I should have an earnest effort to join the independent witnesses. No attempt in this direction appears to have been made and this, by itself, is a circumstances throwing doubt on the arrest or the recovery of the knife from the person of the accused."
28.For the purpose of offence under section 307 IPC the requirement of S.C. No. 16/2008 U/s 307/ 353/ 186/ 34 IPC and 27/54/59 Arms Act State Vs. Azad Singh @ Azad Khan and others 17/20 307 IPC is that act must be done with such intention or knowledge or done under such circumstances if the death is caused by the act offence of murder will emerge.
An offence under section 307 IPC only made out when the accused has requisite intention to commit murder and does an act towards his commission in pursuance of that intention.
To constitute an offence u/s 307 IPC intention or knowledge must be such as is necessary to constitute murder, without this there can be no offence u/s 307 IPC.
29.Since in the present case no injury from the fire arms has been caused or no public witness is present either to recovery of weapons or injury to the complainant and further no medical evidence of accused persons is available on record in pursuance to the statement of PW5. It is highly improbable a colony like Ambedkar Basti which is thickly populated area no public person except PW1 came at spot who also did not support the case of prosecution and fire arm was not used in commission of offence as accused was apprehended before he could fire. Hence, no case made out u/s 307 IPC against the accused persons and they are acquitted from the charge u/s 307 IPC. S.C. No. 16/2008 U/s 307/ 353/ 186/ 34 IPC and 27/54/59 Arms Act State Vs. Azad Singh @ Azad Khan and others 18/20
30.Since the injured complainant Ct. Ashok Kumar has stated that accused Naushad had caused him injury by Chhura but on perusal of medical record no such injury has been pointed out by doctors. Only tenderness on his body have been shown in his MLC and MLC of Ct. Ashok Kumar shows the time 9:30 p.m. whereas incident took place at 3:30 a.m. Hence, the injury caused by Chhura is also not proved.
31.In view of above fact and circumstances and arguments and perusal of record I am of the considered opinion the case of the prosecution is highly under suspicion as MLC of Complainant Ct. Ashok Kumar shows time 9:30 p.m. on 16.01.2008 where as incident took place 3:30 a.m. of 16.01.2008. Especially accused persons in their statement u/s 313 Cr.P.C. have stated that they were implicated falsely by lifting them from their houses. Further there is no public witness to the recovery of weapons or injury to the complainant. Only official witnesses are there to support the case of prosecution. In view of all the observations, I find that prosecution have been failed to prove the S.C. No. 16/2008 U/s 307/ 353/ 186/ 34 IPC and 27/54/59 Arms Act State Vs. Azad Singh @ Azad Khan and others 19/20 charges against the accused persons beyond reasonable doubt. Accordingly, I acquit all the accused persons namely Azad Singh @ Azad Khan, Naushad and Abid Ali from charges u/s 307/186/353/34 IPC and 27 Arms Act by giving them benefit of doubt. In terms of directions of Hon'ble High Court of Delhi persons namely Azad Singh @ Azad Khan, Naushad and Abid Ali are directed to execute bail bond in sum of Rs.15,000/- each with one surety in the like amount for the period of six months. File be consigned to record room. ANNOUNCED IN THE OPEN COURT ON THIS 05.02.2011 ( RAMESH KUMAR-II ) ASJ-01/ North - East Karkardooma Courts Delhi S.C. No. 16/2008 U/s 307/ 353/ 186/ 34 IPC and 27/54/59 Arms Act State Vs. Azad Singh @ Azad Khan and others 20/20