Delhi District Court
State vs (1) Mohd. Julfikar on 25 March, 2011
1
IN THE COURT OF SH. GURDEEP SINGH
ADDITIONAL SESSION JUDGE-04, NORTH-EAST DISTRICT
KARKARDOOMA COURTS : DELHI
FIR No. : 440/2004
Police Station : Khajuri Khas, Delhi
Under Sections : 186/353/332/307/147/148/149 IPC
Unique ID No. : 02402R0137392006
S.C No. : 43/2010
STATE Versus (1) Mohd. Julfikar
S/o Sh. Mohd. Yamin
R/o F-492, Gali No.20
Khajuri Khas, Delhi.
(2) Mohd. Salim
S/o Mohd. Zarif @ Raju
R/o F-492, Gali No.20
Khajuri Khas, Delhi.
(3) Mohd. Shamshad
S/o Mohd. Mustkeen
R/o F-492, Gali No.20
Khajuri Khas, Delhi.
(4) Mohd. Zarif @ Raju
S/o Sh. Abdul Aziz
R/o F-492, Gali No.20
Khajuri Khas, Delhi.
(5) Jameela (DIED)
W/o Sh. Abdul Aziz
R/o F-492, Gali No.20
Khajuri Khas, Delhi.
FIR No. 440/2004, PS : Khajuri Khas, Delhi Page 1 of 43
2
(6) Shakeela
W/o Sh. Nadeem
R/o F-492, Gali No.20
Khajuri Khas, Delhi.
(7) Bhoora
S/o Sh. Shahbuddin
R/o F-492, Gali No.20
Khajuri Khas, Delhi.
(8) Shakeel
S/o Sh. Abdul Aziz
R/o F-492, Gali No.20
Khajuri Khas, Delhi.
(9) Aakil
S/o Sh.Shahbuddin
R/o F-492, Gali No.20
Khajuri Khas, Delhi.
Date of Institution : 19/05/2005
Date of committal : 25/02/2006
Date of reserving judgment : 16/03/2011
Date of pronouncement : 21/03/2011
JU D G M E N T
1.Above-named accused persons were sent up by police of PS:
Khajuri Khas, Delhi to stand trial for offence punishable Under Sections 186/353/332/307/147/148/149 IPC. During the course of trial, accused Saleem S/o Rafique was held to be juvenile by Ld. Metropolitan Magistrate vide order dated 03.02.2006 and was FIR No. 440/2004, PS : Khajuri Khas, Delhi Page 2 of 43 3 directed to be tried before Juvenile Justice Board. During the course of trial, accused Jameela died and vide order dated 09.08.2010, proceedings against accused Jameela were abated.
2. Briefly, the case of the prosecution is that on 05.11.2004, ASI Harish Chand of PS Gokalpuri received a DD No. 88-B and on the receipt of the same, he alongwith Ct. Ramesh reached at B-Block, Gali No.6, Chand Bagh where complainant Hakimuddin and his brother Alauddin met them. Hakimuddin got his statement recorded against the accused persons namely Shakil, Akil, Bhura and Raju regarding giving him beatings while entering in his house. On the basis of the same, he prepared rukka for offence punishable under Section 341 /452/323/506/34 IPC. Thereafter, he alongwith Ct. Ramesh, Hakimuddin and Alauddin went in search of named accused persons and they reached at F-Block, at the corner of Gali No. 20, Khajuri Khas, Delhi where complainant Hakimuddin pointed out towards four boys who were standing there, as a person namely Shakil, Akil, Bhura and Raju who gave him beatings and two more ladies, out of which, one was middle aged woman and one was young girl were also standing. He went to them and introduced himself and started making inquires from them. On this, Shakil told to Hakimuddin "Pehle tujhe chodh dia hain, ab tujhe is layak nahi chodenge ki tu police ko shikayat kar sake, police hamara kya bigad legi". Thereafter, Shakil, Akil, Bhoora and two women whose FIR No. 440/2004, PS : Khajuri Khas, Delhi Page 3 of 43 4 names were disclosed as Jameela and Shakila started abusing the complainant and gave beatings to Hakimuddin and Alauddin by leg and punch blows. When ASI Harish Chand and Ct. Ramesh tried to rescue Hakimuddin and Alauddin, they also started giving beatings to them. Accused Bhoora hit danda on his head and accused Akil hit the brick on his head. Thereafter, when he tried to run away from there, accused Akil, Bhura and Shakila apprehended him and accused Shakil apprehended Ct. Ramesh. Accused Jamila apprehended Alauddin and accused Raju apprehended Hakimuddin. They given beatings to them by leg blows and punch blows. They also started pelting bricks and stones and went inside House No. F-492 and went on the roof and from there, they started throwing stones and bricks upon them. Someone called the police. Police officials reached there and took ASI Harish Chand, Ct. Ramesh and Alauddin to GTB Hospital. Thereafter, police of local police station apprehended accused Jameela, Md. Zarif @ Raju, Mohd. Julfikar, Salim, Mohd. Shamshad, Salim S/o Rafique (Juvenile) from the spot. Accused Bhoora and Shakil surrendered themselves in the court on 18.12.2004. Accused Shakila was granted Anticipatory Bail on 14.12.2004 and she was formally arrested.
3. My Ld. Predecessor, vide order dated 08.12.2006, charged the accused persons for the offences punishable U/s 147/148 IPC, 149 IPC, 186/34 IPC read with Section 149 IPC, 353/34 IPC read with FIR No. 440/2004, PS : Khajuri Khas, Delhi Page 4 of 43 5 Section 149 IPC, 307/34 IPC read with Section 149 IPC and U/s 323/34 IPC read with Section 149 IPC, to which, they pleaded not guilty and claimed trial.
4. The prosecution in support of their case examined as many as 19 prosecution witnesses.
The material witnesses examined by the prosecution are:-
5. PW-1 Sh. Allaudeen is the public witness. He turned hostile towards the prosecution.
PW-2 H.C Ramesh Kumar is the injured. He proved the seizure memo of stones and bricks which were lying at the spot vide Ex.PW2/A and seizure memo of bricks and stones lying at the house of accused Jameela vide Ex.PW2/B. He proved the arrest memo of the accused Mohd. Zarif @ Raju Ex.PW2/C, arrest memo of accused Mohd. Julfikar Ex.PW2/D, arrest memo of accused Mohd. Salim Ex.PW2/E, arrest memo of accused Salim Ex.PW2/F and arrest memo of accused Mohd. Shamshad Ex.PW2/G. He also proved the personal search of accused Zulfikar Ex.PW2/H, personal search memo of accused Mohd. Salim Ex.PW2/I, personal search memo of accused Shamshad Ex.PW2/J, personal search memo of accused Saleem Ex.PW2/K and personal search memo of accused Zarif @ Raju Ex. PW2/L. He identified the plastic katta of white colour having blue stripes Ex.PW2/Article-1 and other katta is Ex.PW2/Article-2.
FIR No. 440/2004, PS : Khajuri Khas, Delhi Page 5 of 43 6PW-7 SI Harish Chand is the complainant and injured. He proved his statement Ex.PW7/A. The formal witnesses examined by the prosecution are:
PW-3 Dr. Sumit who proved the opinion regarding the nature of injury with the respect of ASI Harish Chand as simple, which is given by Dr. Shishir on the MLC Ex.PW3/A. PW-4 Dr. Sanjeev Arora who as per ENT record, had given the opinion regarding the nature of injury as simple on the MLC of patient Alauddin Ex.PW4/A. PW-9 Dr. R. Dayal who proved the MLC of patient Ramesh vide Ex.PW9/A which was prepared by Dr. Alok. He also proved the MLC of injured Alauddin vide Ex.PW4/A prepared by Dr. Rajesh Kumar. He also proved the MLC of injured ASI Harish Chand vide MLC Ex.PW3/A which was prepared by Dr. Neeraj Singh. PW-10 ASI Om Prakash, Duty Officer, who recorded the formal FIR and proved the copy of the same vide Ex.PW10/A. He also recorded the DD No. 30-A and proved the copy of the same vide Ex.PW10/B. PW-11 SI Rajender Singh who was posted on PCR who had taken the injured ASI Harish and Alauddin to the GTB Hospital and got them admitted there.
PW-12 HC Naresh who proved the formal arrest of accused Akil on his surrender in the court vide arrest memo Ex.PW12/A, personal FIR No. 440/2004, PS : Khajuri Khas, Delhi Page 6 of 43 7 search memo of accused Akil vide memo Ex.PW12/B and his disclosure statement vide Ex.PW12/C. PW-15 SI Prabhu Dayal was posted as Incharge PCR and removed injured Ct. Ramesh to the GTB Hospital and got him admitted there. He, however, partly turned hostile. PW-16 Ct. Rattan Singh was the photographer who took 12 photographs on the instructions of the IO. He proved the photographs vide Ex.PW16/P-1 to P-12 and also proved its negatives Ex.PW16/P13 to P-24.
The witnesses of investigation examined by the prosecution are:
PW-13 H.C Satish, PW-14 H.C Omvir Singh, PW-17 H.C Mahender and PW-18 Ct. Mukesh are the witnesses who reached at the spot when the stone pelting incident was going on and are the witnesses of apprehension of the accused persons from the spot. PW-5 Lady H.C Durga and PW-6 Lady Ct. Vatan Devi who are the witness of arrest of accused Jameela and proved her arrest memo Ex.PW5/A and her personal search memo Ex.PW5/B. PW-19 SI Jai Prakash is the Investigating Officer who in addition to the other memos proved his endorsement on the statement of ASI Harish Chand vide Ex.PW19/A, site plan Ex.PW19/B, arrest memo of accused Bhura and Shakil vide Ex.PW19/C and Ex.PW19/D. Their personal search memo Ex.PW19/C-1 and Ex.PW19/D-1 respectively. Disclosure statement of accused Bhura Ex.PW19/E, FIR No. 440/2004, PS : Khajuri Khas, Delhi Page 7 of 43 8 seizure memo of danda recovered at the instance of accused Bhura vide Ex.PW19/F, arrest memo of accused Shakeela vide Ex.PW19/G, her personal search memo Ex.PW19/H and her disclosure statement Ex.PW19/I.
6. The prosecution has failed to examine the ACP who had filed the complaint for prosecution. The prosecution evidence was closed by the court vide order dated 15.02.2011.
7. After the completion of the prosecution evidence, statements of accused persons were recorded U/s 313 Cr.PC wherein they denied the prosecution evidence and claimed innocence.
8. Accused Mohd. Julfikar in his statement U/s 313 Cr.P.C has stated that he is living in House No. 508 in the same street and on the date of incident, he was returning to his home after breaking fast (roja) and when he entered in his house, one police man came and asked him as to where he is living and asked him to accompany him for inquiry and thereafter, gave beatings and falsely implicated in this case. He choses not to lead the Defence Evidence.
9. Accused Shamshad in his statement U/s 313 Cr.P.C has stated that at the time of incident, he was sitting in the house and doing the work of calender, police came inside the house and taken him and FIR No. 440/2004, PS : Khajuri Khas, Delhi Page 8 of 43 9 falsely implicated him in this case. He choses not to lead the Defence Evidence.
10. Accused Bhura in his statement U/s 313 Cr.P.C has stated that at the time of alleged incident, he was present at his in-laws' house at District Bulandsahar and he is falsely implicated in this case. He choses to lead evidence in his defence. Accused Bhoora examined DW-1 Ms. Praveen in his defence.
11. Accused Shakil in his statement U/s 313 Cr.P.C has stated that at the time of alleged incident, he was present at his house and was eating meal. Later on, he came to know that he has been named by the police and thereafter, he had surrendered in the police. He choses to lead evidence in his defence. Accused Shakeel examined DW-2 Ms. Yasmine in his defence.
12. Accused Mohd. Akil in his statement U/s 313 Cr.P.C has stated that at the time of alleged incident, he was present at his in-laws' house at Okhla where he was living as his child was born in his in-laws' house. He has been falsely implicated in this case. He choses not to lead evidence in his defence.
13. Accused Jarif @ Raju in his statement U/s 313 Cr.P.C has stated that at the time of alleged incident, he had returned to his home from Rajan Babu T.B Hospital, Camp Delhi and was going to bed FIR No. 440/2004, PS : Khajuri Khas, Delhi Page 9 of 43 10 after eating meal and medicine and in the meantime, police officials came and forcibly took him and falsely implicated him in this case and he is still suffering from TB. He choses not to lead evidence in his defence.
14. Accused Salim in his statement U/s 313 Cr.P.C has stated that he was returning after his work and saw crowd collected and police was following onlookers and got frightened and went inside the street. Police apprehended him from the street and falsely implicated him. He does not know other co-accused persons. He choses not to lead evidence in his defence.
15. Accused Shakeela in her statement U/s 313 Cr.P.C has stated that at the time of alleged incident, she was present at her in-laws' house i.e Purvi Barren Road, New Zakir Hussain College, Behind Petrol Pump, Minto Road. Police came to her house and asked her as to who is Shakil and implicated her in this case. She choses not to lead evidence in her defence.
16. I have heard Sh. Virender Singh, Ld. Addl. Public Prosecutor for the State, Sh. Abdul Sattar, Legal Aid Counsel for the accused Shamshad and Sh. S.Asif, Advocate for remaining accused persons. I have also gone through the record.
FIR No. 440/2004, PS : Khajuri Khas, Delhi Page 10 of 43 1117. PW-7 SI Harish Chand deposed on the lines of his complaint. He testified that he got 10 stiches on his head. His eye-sight also got week due to the injuries sustained by him on his head. IO/SI Jai Prakash recorded his statement in the hospital vide Ex.PW7/A. He identified accused Raju, Bhoora, Akil, Shakil and Shakeela (whose identity was not disputed).
18. PW-2 H.C Ramesh Kumar corroborated PW-7 S.I Harish Chand regarding the incident. He stated that SI Jay Prakash alongwith Ct. Mahender from PS Khajuri Khas also reached there. They sent him, ASI Harish Chand and Alauddin to GTB Hospital in a PCR. Thereafter, he alongwith IO/SI Jay Prakash came at the spot. IO had already called the Government Photographer who took the photographs of the spot. In the meantime, Hakimuddin and Alauddin also reached there. IO prepared site plan at their instance. IO had seized the stones and bricks which were lying at the spot and pelted upon them through seizure memo Ex.PW2/A. They also went at the roof of the House No. 492 i.e the house of accused Jameela and from there IO had also seized the bricks and stones lying there through memo Ex.PW2/B. He further stated that thereafter, six accused persons namely Julfikar, Shamshad, Mohd. Salim, Salim, Jarif @ Raju and Jamila were arrested from the spot at the instance of Alauddin and Hakimuddin. He also identified them.
FIR No. 440/2004, PS : Khajuri Khas, Delhi Page 11 of 43 1219. PW-1 Allaudeen testified that in the year of 2004-05, he was present in the market at Mandauli. At about 8/8.30 PM, he received telephonic call from his house that a quarrel had taken place in between his younger brother and his known persons. He immediately reached at the spot at Chand Bagh Road, Khajuri. He found none was present there. He saw that there was crowd at some distance from there, he reached there and saw that a quarrel had already taken place and public persons pelting the stones upon the second party. In the mean time, he also sustained injury by brick hit on his head behind the ear. He also sustained injury on back side of neck with the brick. He fell down on the road and some public persons removed him and lift him at the side of road. PCR police reached there and they took him at GTB Hospital. One police official came at the hospital and asked his name and address. Some police official had also sustained injuries. He does not know who had hit the bricks to him. He stated that he also can not identify those persons who were pelting the stones. None of them were known to him. He remained in the hospital for about 2 hours and thereafter he was discharged from the hospital. He was declared hostile by the prosecution but nothing material has come on record despite his cross-examination by Ld. Addl. P.P for the State.
20. PW-8 Sh. Hakimuddin testified that on 05/11/04, he was present at his house alongwith his brother namely Allauddin. At about FIR No. 440/2004, PS : Khajuri Khas, Delhi Page 12 of 43 13 7.30/8.00 pm, accused Shakil, Akil, Bhoora came to his house. At that time, he was not present at home as he had gone at the house of his sister which is situated in the same locality. When he returned back to his house, he came to know from his brother Allauddin that accused Shakil, Akil and Bhoora came there and they had threatened them to kill. He made a call on 100 number to the police. Two police officials reached there, but he does not remember their names. Thereafter, he alongwith both the police officials in search of the accused persons, reached near the house of accused Shakil and Akil at Khajoori where he identified accused Shakil, Akil and Bhoora who were standing at the corner of the street. The police officials told them to come to police station and in the meantime, the other public persons i.e the tenants of accused persons who were in number approximately 30/35 tried to apprehend him, but he ran away from there. He returned back at the spot and found that both the police officials were in injured condition. Thereafter, more police officials also reached there and took both the injured police officials to the hospital for their medical examination. Thereafter, he does not know what had happened. The accused persons had not given beatings to the police officials in his presence. He does not know anything more about this case. He was declared hostile by the prosecution and was cross-examined by Ld. Addl. P.P for the State, wherein, he denied that on 05/11/04 at about 8.00 pm, accused Shakil, Akil and Bhoora had entered in his house alongwith accused FIR No. 440/2004, PS : Khajuri Khas, Delhi Page 13 of 43 14 Raju and they gave beatings to him and his brother and also they threatened to kill him and his brother and he had called the police and ASI Harish Chand alongwith one constable reached there who recorded his statement. He further denied that thereafter, he along with his brother Allauddin, ASI Harish Chand and Constable reached at the corner of Gali No. 20, F-Block, Khajoori Khas where he identified the accused Raju also who was standing with accused Akil, Shakil and Bhoora along with two ladies namely Jamila and Shakila. He denied the incident of pelting of stones from the roof. He further denied that Raju, Shamshad, Zulfikar, Salim S/o Zarif, Salim S/o Rafiq and Jamila were apprehended by the police at the spot. He further denied that accused Shakil, Akil, Bhoora and Raju had caused injuries to ASI Harish Chand, Ct. Ramesh, his brother Allauddin and to himself.
21. PW-13 H.C Satish testified that on 05.11.2004, at about 9.25 PM, he alongwith Ct. Mukesh and Ct. Omvir were on patrolling duty and when they reached at Gali No. 20, F Block where one public person met them and informed that some persons are pelting stones upon the police party at house of Jamila, Gali No. 20. They all reached there where they found that IO SI J M Meena alongwith the police staff were present there. They with the help of other police staff apprehended 5-6 persons who were pelting the stones on the police party whose names were came to know as Julfikar, Jarif, two FIR No. 440/2004, PS : Khajuri Khas, Delhi Page 14 of 43 15 persons having similar names Salim (juvenile), Shamshad and lady Jamila (expired). He stated that IO had also seized the stones and piece of brick which were lying at the spot. IO recorded his statement. He stated that he can identify the accused but he identified Shakil as Shamshad. He stated that he cannot identify the other accused which were apprehended in his presence. He was cross-examined by Ld. Addl. P.P for the State on the point of identity of the accused persons. Ld. Addl. P.P for the State pointed towards accused Shamshad, Zarif, Salim, and Julfikar being the persons who were arrested at the spot in his presence. The witness having seen them stated that they are the same but he identifies them by faces not by their names.
22. PW-14 H.C Omvir Singh corroborated PW-13 H.C Satish regarding the patrolling duty and there reaching at the spot. He stated that they with the help of other police staff apprehended 6 persons who were pelting the stones on the police party whose names were came to know as Julfikar, Jarif, two persons having similar names Salim (juvenile), Shamshad and lady Jamila (expired). He stated that IO had also seized the stones and piece of brick which were lying at the spot. IO recorded his statement. He stated that he cannot identify the accused persons due to lapse of time. He was cross-examined by Ld. Addl. P.P for the State on the point of identity of the accused persons. Ld. Addl. P.P for the State pointed towards accused FIR No. 440/2004, PS : Khajuri Khas, Delhi Page 15 of 43 16 Shamshad, Zarif, Salim, and Julfikar being the persons who were arrested at the spot in his presence. The witness having seen them stated that they are the same but he identifies them by faces not by their names.
23. PW-18 Ct. Mukesh similarly corroborated and stated that SHO alongwith other police staff present there. ASI Harish Chand, Ct. Ramesh from PS Gokalpuri and IO were also present at the spot. ASI Harish and one public person were in injured condition. Perhaps Ct. Ramesh was also in injured condition. He stated that injured persons were sent to GTB Hospital in PCR Van for their medical examination. Police party had apprehended accused Salim S/o Zarif, Salim, Julfikar, Zarif, Zamila and Shamshad and arrested them. IO had also collected the stones and bricks and seized the same. He stated that accused persons were also taken to GTB Hospital for their medical examination. He identified the accused persons. IO recorded his statement.
24. PW-17 H.C Mahender testified that on 05.11.2004. on the receipt of DD No. 30-A, he alongwith SI J.P Meena reached at the spot at H.No. F-492, Gali No. 20, Khajuri Khas where he found that some ladies and gents were throwing the stones upon the police party. In the meantime, Ct. Mukesh, Ct. Omvir and Ct. Satish also reached there. In the meantime, SHO of PS Khajuri Khas and SHO of PS Gokalpuri also reached there. IO with the help of other police staff FIR No. 440/2004, PS : Khajuri Khas, Delhi Page 16 of 43 17 removed ASI Harish Chand, Ct. Ramesh, Allauddin and Hakimuddin from the spot who were in injured condition and they were sent to GTB Hospital in PCR Van for their medical examination. He stated that IO with the help of the police staff apprehended the persons i.e ladies and gents who were pelting stones from the roof of the H.No. F-492. Those persons also tried to run away from the roof and in this process, they sustained minor injuries by falling. Their names were came to be known as Zarif, Salim S/o Zarif, Salim, Mohd. Shamshad, Zulfikar and Jamila (now deceased) who was apprehended with the help of Lady Constable. Thereafter, they were handed over to the polcie staff and he alongwith the IO went to GTB Hospital. IO collected the MLC of injured persons and recorded the statement of ASI Harish Chand and prepared rukka upon his statement and same was handed over to him to get lodge the FIR. He went to PS Khajuri Khas and got the FIR registered. He identified the accused persons by their faces but he cannot identify them with their names.
25. PW-19 SI Jai Prakash is the Investigating Officer. He corroborated other witnesses regarding the incident.Thereafter, he with the Ct. Ramesh and Allauddin came at the spot. He prepared site plan at the instance of Ct. Ramesh Ex. PW-19/B. In the meantime, Ct. Mahender reached at the spot and he had handed over him the copy of FIR and rukka. He recorded statements of public witnesses. He FIR No. 440/2004, PS : Khajuri Khas, Delhi Page 17 of 43 18 called the photographer who took the photographs of the spot from different angles as per my instructions. He seized the stones and bricks from the street and roof of H.No.F-492 vide seizure memo Ex. PW-2/A and B. He interrogated accused persons who were apprehended from the spot. He arrested accused persons namely Zamila, Zarif, Zulfikaar, Salim S/o Zarif, Salim and Shamshad vide arrest memos Ex. PW-5/A, PW-2/C, PW-2/D, PW-2/E, PW-2/F and PW-2/G respectively. The personal search of accused Zamila was conducted by Lady Ct. Vatan which is Ex. PW-5/B. The personal search of accused Zulfikaar, Salim S/o Zarif, Shamshad, Salim and Zarif was conducted vide memos Ex. PW-2/H, PW-2/I, PW-2/J, PW-2/K and PW-2/L respectively. Thereafter, they were taken to GTB Hospital for their medical examination and thereafter, they were brought to Police Station. Thereafter, he produced the accused persons before the court and from there, they were remanded to J.C. He stated that four accused persons absconded from the spot and they were named by injured ASI Harish Chand in his statement. He stated that on 15.12.04, accused Bhura and Shakil had surrendered before the concerned court of PS Khajuri Khas and he with the permission of the court interrogated them and arrested them vide arrest memos Ex. PW-19/C and D respectively and their personal search was also conducted vide memos Ex. PW-19/C-1 and PW-19/D-1 respectively. He recorded disclosure statement of accused Bhura which is Ex. PW-19/E. He received one day PC FIR No. 440/2004, PS : Khajuri Khas, Delhi Page 18 of 43 19 remand of accused Bhura and in pursuance of disclosure statement accused Bhura led the police party at Pulia of Chand Bagh to get recover the danda by which they caused the injuries to ASI Harish Chand. They reached at Chand Bagh Pulia at the instance of accused Bhura and from the ganda naala, he took out one danda which was having mud (keechad mein sana hua). He seized the same through seizure memo Ex. PW-19/F. He stated that on 18.12.04, accused Akil surrendered before the court and he with the permission of the court interrogated him and arrested him vide arrest memos Ex.PW-12/A. He also recorded the disclosure statement of accused Akil which is Ex. PW-12/C. Thereafter, he was remanded to J.C. He stated that accused Shakeela got anticipatory bail on 19.12.04 and she produced the surety before him and she was released. He prepared arrest memos of accused Shakeela which is Ex. PW-19/G and her personal search was also conducted by Lady Ct. Saroj vide memo Ex. PW-19/H. He also recorded her disclosure statement which is Ex. PW-19/I. He stated that he collected the opinion on the MLC from the hospital. He identify the accused Zulfikaar, Shamshad, Zarif, Shakeela, Bhura, Shakil, Akil and Salim.
26. There are two sets of the witnesses. One who were present at the time of alleged incident alongwith the complainant namely H.C FIR No. 440/2004, PS : Khajuri Khas, Delhi Page 19 of 43 20 Ramesh Kumar, SI Harish Chand and second set of witnesses is who came at the spot during the stone pelting incident.
27. Now firstly the question arises as to who were present at the first incident and whether they were more than 5 persons and constituted an unlawful assembly. PW-2 H.C Ramesh Kumar testified that Shaqil, Akil, Bhura and Raju alongwith two ladies namely Jameela and Shakeela were present. He further claims that all the four persons alongwith the ladies started pelting stones on the police party. Accused Bhura and Akil hit ASI Harish Chand and gave beatings to him. Thereafter, local police came and he alongwith ASI Harish Chand and Alauddin were sent to GTB Hospital. Thereafter, he returned to the spot and claims that thereafter, accused Julfikar, Shamhad, Mohd. Salim, Salim, Jarif @ Raju and Jamela were arrested from the spot at the instance of Alauddin and Hakimuddin. In his cross-examination, he stated that at about 9.15 PM, PCR police reached at the spot i.e Gali No. 6. He reached at the hospital at about 10.00 PM. Police officials reached at the hospital at about 10.30 PM. They remained in the hospital at about 11.55 PM and thereafter, he reached at the spot at about 12.45 AM (midnight). At that time, public persons were not present there and there were only police officials in number 15-20. Meaning thereby, when he again visited the spot the stone pelting incident had stopped.
FIR No. 440/2004, PS : Khajuri Khas, Delhi Page 20 of 43 2128. PW-7 S.I Harish Chand categorically states in his cross-examination that he remained at Gali No.20 till 10.00 PM and from Gali No. 20, PCR took him to GTB Hospital and thereafter, he was discharged from the hospital at about 2.00 AM and went straight away to his house. None of the accused persons were apprehended in his presence. Therefore, according to H.C Ramesh Kumar, accused Shaqil, Akil, Bhura, Raju, Jameela and Shakeela were present in their presence who formed an unlawful assembly. Whereas, PW-8 Sh. Hakimuddin who although turned hostile but has categorically stated that Shakil, Akil and Bhoora were present and the other public persons i.e the tenants of accused persons who were in number approximately 30/35 tried to apprehend him. However, he denied Jameela, Shakeela and Raju were present with them.
29. PW-2 and PW-7 are consistent that accused Shakil, Akil, Bhoora and Raju @ Mohd. Zarif were present at the spot who formed unlawful assembly. Therefore, the presence of these four accused persons at the spot is established alongwith 30/35 unknown persons. However, PW-9 Hakimuddin who turned hostile had not named accused Raju @ Mohd. Zarif being the person present at the spot. However, in view of the fact that PW-9 is hostile, the testimony of the police witnesses who are consistent, the presence of accused Raju @ Mohd. Zarif at the spot is also proved beyond reasonable doubt. Therefore, presence of accused Shakil, Akil, Bhoora and FIR No. 440/2004, PS : Khajuri Khas, Delhi Page 21 of 43 22 Raju @ Mohd. Zarif is established at the spot beyond reasonable doubt.
30. The other sets of witnesses are who reached at the spot when the stone pelting incident was going on. PW-13 HC Satish gave the names of persons who were pelting stones, however, failed to identify them. He states that they reached at the spot at about 9.25 PM. PW-14 H.C Omvir Singh also states that six persons were apprehended by the police but stated that he cannot identify them. PW-17 H.C Mahender stated that they had apprehended ladies and gents who were pelting the stone. They also sustained minor injuries by fall. He also could not identify the accused persons by their names and stated that he an identify them by their faces only. PW-18 Ct. Mukesh identified accused Salim S/o Zarif, Salim, Julfikar, Zarif, Zamila and Shamshad. However, it is important to note here that Salim S/o Zarif was juvenile and not facing trial in this court but PW-18 has claimed that accused Salim S/o Zarif was also present and identified him which would clearly reflect on his memory. Therefore, the memory with respect to the involvement of accused Julfikar, Zarif, Salim S/o Rafiq and Jameela having been apprehended from the spot, is doubtful. PW-19 IO/SI Jai Prakash in his cross-examination has stated that there was a huge crowd present at the spot. He cannot tell the number of persons gathered at the spot. He stated that only six persons were present in the house FIR No. 440/2004, PS : Khajuri Khas, Delhi Page 22 of 43 23 who were arrested and voluntarily stated that remaining had ran away from there by jumping on the roof of the adjoining houses. He was present at the spot but does not named the persons namely Akil, Shakeela, Bhura and Shakeel present at the spot. He categorically stated that four persons absconded from the spot who were named by injured ASI Harish Chand in his statement. Meaning thereby, he has not seen these persons throwing stones or present at the spot.
31. There are inconsistencies between the testimony of police witnesses as all the police witnesses i.e PW-13, PW-14, PW-17 and PW-18 could not identify Jarif, Julfikar, Saleem, Shamshad and Jameela and PW-19 IO claims that they were apprehended from the spot and also claims that huge crowd was collected there.
32. PW-2 H.C Ramesh Kumar who was initial witness has claimed that accused persons were apprehended in his presence at the instance of Alauddin and Hakimuddin after he arrived at the spot. His version is not free from doubt as he arrived when stone pelting incident had come to an end. Therefore, unlawful assembly had come to an end. Therefore, apart from I.O., there is no other witness who has apprehended these accused persons while allegedly throwing stones.
33. One of the witness has stated that accused persons had sustained injury by fall while running. IO also claims that accused persons stained injuries by fall. However, admitted that MLC of accused FIR No. 440/2004, PS : Khajuri Khas, Delhi Page 23 of 43 24 persons are not on record and was placed in police file. It is strange and not understandable as to why the MLC of the accused persons who had sustained injuries has not been placed on record as it would have assisted the court in arriving at the conclusion regarding their presence at the spot.
34. In the cases like these when large public persons were present at the spot, it is likely that on-lookers and passersby also came and in the process, got apprehended and unless their identity is established at the spot beyond doubt, it cannot held that they were the members of the unlawful assembly. Accordingly, I am of the opinion that accused Julfikar, Shamshad, Saleem S/o Rafiq and Zarif @ Raju are entitled to benefit of doubt. However, Zarif @ Raju also figures as initial person who picked up a quarrel, therefore, his presence will be seen with respect to the initial incident.
35. Now coming to accused Shaqil, Akil, Bhura, Zarif @ Raju and Shakeela. Accused Shakeela, Raju @ Jarif, Shaqil, Akil and Bhura admittedly were not apprehended from the spot. PW-7 S.I Harish Chand claims that he came to know the names of accused Shakeela and Jameela from complainant Hakimuddin. Shakeela was wearing black burka. No TIP of accused Shakeela was got conducted by ASI Harish Chand. Shakeela admittedly was wearing black burqa and her name was also disclosed by the complainant. Therefore, only FIR No. 440/2004, PS : Khajuri Khas, Delhi Page 24 of 43 25 complainant can tell whether Shakeela is the same person who was involved in the incident or not.
36. PW-8 Sh. Hakimuddin had not named Shakeela being present at the spot. Only evidence regarding the identification of accused Shakeela is PW-2 H.C Ramesh Kumar who stated that when he and ASI Harish Chand intervened into the matter, all the four boys caught hold both of them and accused Bhura was having danda in his hand and he hit the same on the head of ASI Harish. Accused Akil hit the brick on the head of ASI Harish Chand. He stated that thereafter, they alongwith ladies started pelting stones on the police party. Whereas, ASI Harish Chand states that all the four accused alongwith two ladies started giving beatings to Hakimuddin and Alauddin and when they intervened, they started giving beatings to them. He also gave the role of Shakeela that Shakeela apprehended him, Jameela apprehended Alauddin and Raju apprehended Hakimuddin. Therefore, there are material inconsistencies in the testimonies of two witnesses regarding the role of Shakeela. Accused Shakeela did not play any role except of pelting of stones according to PW-2 but according to PW-7 ASI Harish Chand, accused Shakeela manhandled them and gave beatings. PW-2 was also shaky in his testimony. Initially, he said that there was one lady Jameela and later on, stated that there were two ladies and other lady was Shakeela, which creates doubt about the identity of FIR No. 440/2004, PS : Khajuri Khas, Delhi Page 25 of 43 26 accused Shakeela. Therefore, accused Shakeela is also entitled to benefit of doubt. Accused Jameela has expired.
37. Now we are left with accused Shakil, Aqil, Bhura and Zarif @ Raju.
PW-2 HC Ramesh Kumar in his cross-examination stated that there was a street-light at that place. The house of the accused persons was at the distance of about 20 yards from the entry of gali No.20. PW-7 ASI Harish Chand also stated about the presence of Akil, Bhura and Shaqil. In his cross-examination, he stated that gali No. 6, Chand Bagh is a crowded and densely populated area. He did not try to call any public person from their houses to join the investigation. They remained in Gali No. 6 for about 10 minutes. After ten minutes of reaching Gali No. 6, they left for gali no. 20. The distance between Gali No. 6 and Gali No. 20 is about 200-300 meter. He stated that gali No. 20 is closed from one end. Whereas, PW-2 H.C Ramesh Kumar stated that distance between Gali No. 6 and Gali No. 20 is about 100 yards. This is only inconsistency between the testimony of these two witnesses, which can be safely ignored as in the street it is difficult to guage the exact distance. The testimony of PW-7 is corroborated from the doctor who medically examined him.
38. PW-8 Sh. Hakimuddin has partly supported the prosecution but he has not given the name of Raju @ Mohd. Zarif being present at the spot. However, there is no cross-examination of other witnesses FIR No. 440/2004, PS : Khajuri Khas, Delhi Page 26 of 43 27 regarding the presence of accused Raju at the spot. The testimony of PW-7 is also corroborated from the photographs where bricks were lying at the spot. Accordingly, the prosecution has succeeded in proving that while PW-7 ASI Harish Chand and PW-2 H.C Ramesh Kumar had gone alongwith PW-8 Sh. Hakimuddin in connection with the investigation, accused Shakil, Akil, Bhora and Raju @ Mohd. Jarif obstructed them from carrying out their duty and thereafter, formed an unlawful assembly alongwith 30/35 unknown persons and pelted stones upon the police party. Therefore, offence punishable U/s 147 read with Section 149 IPC, 353 IPC read with Section 149 IPC is proved against accused persons namely Shakeel, Akil, Bhoora and Raju @ Mohd. Zarif.
39. Now coming to the injury. ASI Harish Chand had sustained injury on his head. However, the nature of injury was given by the doctor as simple. ASI Harish Chand had sustained injury on his occipital region of Skull but nature of injury, as per Neuro Surgery record, is opined as simple. There is, however, no intention appears to be on the part of the accused persons to cause his death, therefore, offence punishable U/s 307 IPC is not proved. However, offence punishable U/s 323 read with Section 149 IPC is proved against accused persons Shakeel, Akil, Bhoora and Raju @ Mohd. Zarif. However, offence punishable U/s 186 IPC read with 149 IPC is not made out as the prosecution has failed to examine the witness who had filed FIR No. 440/2004, PS : Khajuri Khas, Delhi Page 27 of 43 28 the complaint and therefore, there is a bar of section 195 Cr.P.C Hence offence punishable U/s 186 IPC is not proved against the accused persons. Law on the subject is now well settled that bar of Section 195 (1) (a) (i) Cr.P.C would only apply to Section 186 IPC, not to the other offences. Refer to the judgment of Hon'ble Supreme Court in case titled as "Pankaj Aggarwal & Ors. Vs. State of Delhi & Anr." 2001 (10) AD (SC) 494.
40. Now coming to Section 148 IPC. According to the injured ASI Harish Chand, accused Bhoora had hit him with danda on his head. The danda was also recovered at the instance of accused Bhoora subsequently. There is no cross-examination with respect to the recovery of danda at the instance of accused Bhura. With the user of danda as a weapon of offence, the death can be caused. Therefore, offence U/s 148 IPC is proved against accused Bhoora.
41. Now coming to the defence of the accused persons. Accused Bhoora has examined DW-1 Ms. Parveen in his defence, who stated that accused Bhoora is her 'nandoi' as well as 'dewar'. Accused Bhoora is residing with them in Jhangirabad for last more than 7 years. On 05.11.2004, accused Bhoora was present at Jhangirabad with them. She stated that accused Bhoora is not involved in any case. In her cross-examination, she stated that she does not know anything about this case. She admitted that accused Bhoora comes to attend the hearing in the court of this case. She came to know FIR No. 440/2004, PS : Khajuri Khas, Delhi Page 28 of 43 29 about this case after five days after his surrender in this case in the court. Accused Bhoora is also doing the work of embroidery at Jhangirabad Bulandsahar. Her husband used to come Delhi and accused Bhoora did not visit Delhi. Accused Bhoora was residing in Delhi before his marriage. The parents of accused Bhoora are still residing in Delhi at Wazirabad but she does not know their address. Accused Bhoora has three brothers and she does not know where they live. Wife of accused Bhoora is residing at Jhangirabad with them. She does not know the date, month and year of the marriage of accused Bhoora. Accused Bhoora has three children. She stated that she did not contact any police official of PS Khajuri Khas or ACP or DCP to apprise them about the false implication of the accused Bhoora in present case. She also did not write any application or write complaint to the Police Official and any other authority in this regard.
42. DW-1 Ms. Parveen is an illiterate person, therefore, one can imagine that she does not know the year or month of marriage of accused Bhoora. However, she would certainly know that where his brothers are living in Delhi. She is close relative of accused Bhura, therefore, it cannot be said that she would not know anything in this case. She admitted that accused was going to attend the hearing of this case. She distinctly remembers the date of incident that accused Bhoora was present at Jhangirabad. However, she does not know FIR No. 440/2004, PS : Khajuri Khas, Delhi Page 29 of 43 30 anything else. This witness cannot be relied upon and does not inspire any confidence.
43. Accused Shakeel has examined DW-2 Ms. Parveen in his defence, who stated that she is the wife of accused Shakeel. Her husband has been falsely implicated in this case and he was not involved in any case. After about 10/12 days, her mother-in-law i.e accused Jamila (now deceased) has told her that her husband has been named in this case and he has to surrender. In her cross-examination, she stated that she does not know the date of incident. She also does not know about the present case. She also does not know whether police officials had sustained injuries in this case. She also does not remember the date when mother-in law had told her about this case. She stated that she did not contact any police official of PS Khajuri Khas or ACP or DCP to apprise them about the false implication of the accused Shakeel in present case. She also did not write any application or write complaint to the Police Official and any other authority in this regard.
44. DW-2 Ms. Parveen is oblivious on all important facts. The incident had taken place where her mother-in-law Jameela (now deceased) was arrested from the spot. Police officials had also sustained injuries. She despite being the daughter-in-law of Jameela does not know anything about this case. This is highly unbelievable. This FIR No. 440/2004, PS : Khajuri Khas, Delhi Page 30 of 43 31 witness also cannot be relied upon and does not inspire any confidence.
45. Accordingly, as per the discussion above, I am of the opinion that the prosecution has succeeded in proving offences punishable U/s 147 read with Section 149 IPC, U/s 353 IPC read with Section 149 IPC, and U/s 323 read with Section 149 IPC against accused persons namely Shakeel, Akil, Bhoora and Raju @ Mohd. Zarif and offence punishable U/s 148 IPC against accused Bhoora beyond reasonable doubt. Accused Shakeel, Akil, Bhoora and Raju @ Mohd. Zarif are accordingly convicted for these offences.
46. Accused persons namely Julfikar, Shamshad, Saleem S/o Rafiq and Shakeela are entitled to benefit of doubt. They are accordingly acquitted of the charges. Their bail bonds stands cancelled. Sureties discharged.
47. Let accused persons/convicts namely accused Shakeel, Akil, Bhoora and Raju @ Mohd. Zarif be heard on quantum of sentence.
Announced in the open court
Today i.e. on 21.03.2011 GURDEEP SINGH
ASJ-04/KKD/21.03.2011
FIR No. 440/2004, PS : Khajuri Khas, Delhi Page 31 of 43
32
IN THE COURT OF SH. GURDEEP SINGH :ADDL. SESSION JUDGE, NORTH EAST DISTRICT,KARKARDOOMA COURTS, DELHI State Vs. Mohd. Julfikar etc. FIR No. 440/2004 PS : Khajuri Khas, Delhi U/s : 186/353/332/307/147/148/149 IPC 25.03.2011 ORDER ON SENTENCE Pr. : Sh. Virender Singh, Ld. Addl. P.P for the State.
Convict Aakil on bail with Sh. Sarfraz Asif, Advocate Arguments heard on sentence.
Report of probation officer received.
It is submitted on behalf of convict Aakil that convict is aged about 29 years and at the time of the incident, he was 22 years old. He is married person and has wife, old aged parents and two children to support. He is sole bread earner in the family. It is further submitted that he is not a previous convict and has clean antecedent. It is further submitted that there is no involvement of the convict prior or subsequent to the present offence. Therefore, lenient view is prayed that he be given benefit of probation.
Report of probation officer seen. It is reported by Probation Officer that convict Aakil was not having any previous involvement in any criminal case. He is not a habitual offender. The probation officer has also recommended that there is likelihood of reformation of convict, if released on probation.
FIR No. 440/2004, PS : Khajuri Khas, Delhi Page 32 of 43 33In this case the convict has been found guilty of obstructing the public servant in carrying out his duty, committing rioting and being the member of unlawful assembly and causing simple hurt. Convict has been convicted U/s 147 read with Section 149 IPC, U/s 353 IPC read with Section 149 IPC and U/s 323 IPC read with Section 149 IPC Ld. Addl. P.P for the State has submitted that convict does not deserve any leniency.
On the other hand, Ld. Counsel for the convict has submitted that accused has faced the trial of this case since 2004 and he was very young at the time of commission of offence, now he is matured and behaving sensibly and has family to support. Further, it is submitted that he is not a previous convict and the incident had taken place in the heat of moment, therefore, the convict be given benefit of probation.
Keeping in view the facts and circumstances of this case and the fact that there is no previous involvement of convict in any criminal case, I am of the opinion that the ends of justice would be met in giving the benefit of probation u/s 4 of Probation of Offenders Act to the convict.
Accordingly, convict Aakil is released on probation of good conduct for a period of two years on his executing personal bond and surety bond in the sum of Rs.10,000/- subject to the condition that he shall keep peace and be of good behaviour during that period. Further he shall not consume liquor or addicted to any narcotic drug, during the period of probation. The convict is also directed to report the probation officer every three months who shall file quarterly report in this regard to the court regarding his FIR No. 440/2004, PS : Khajuri Khas, Delhi Page 33 of 43 34 behaviour and conduct. The convict is further directed to appear and receive sentence during the period of two years, if he is so directed.
Further, the convict is also directed to pay Rs. 5,000/- to the State as the cost of proceedings. The same shall be recovered as per Section 431 of Cr.P.C, if not paid.
Copy of the judgment and order on sentence be given to the convict free of cost and copy of the judgment be also sent to probation officer for compliance. File be consigned to record room.
Announced in the open court
today i.e on 25/03/2011 GURDEEP SINGH
ASJ-04/NE/KKD/25.03.2011
FIR No. 440/2004, PS : Khajuri Khas, Delhi Page 34 of 43
35
IN THE COURT OF SH. GURDEEP SINGH :ADDL. SESSION JUDGE, NORTH EAST DISTRICT,KARKARDOOMA COURTS, DELHI State Vs. Mohd. Julfikar etc. FIR No. 440/2004 PS : Khajuri Khas, Delhi U/s : 186/353/332/307/147/148/149 IPC 25.03.2011 ORDER ON SENTENCE Pr. : Sh. Virender Singh, Ld. Addl. P.P for the State.
Convict Bhoora on bail with Sh. Sarfraz Asif, Advocate Arguments heard on sentence.
Report of probation officer received.
It is submitted on behalf of convict Bhoora that convict is aged about 31 years and at the time of the incident, he was 24 years old. He is married person and has wife, old aged parents and two children to support. He is sole bread earner in the family. It is further submitted that he is not a previous convict and has clean antecedent. It is further submitted that there is no involvement of the convict prior or subsequent to the present offence. Therefore, lenient view is prayed that he be given benefit of probation.
Report of probation officer seen. It is reported by Probation Officer that convict Bhoora was not having any previous involvement in any criminal case. He is not a habitual offender. The probation officer has also recommended that there is likelihood of reformation of convict, if released on probation.
FIR No. 440/2004, PS : Khajuri Khas, Delhi Page 35 of 43 36In this case the convict has been found guilty of obstructing the public servant in carrying out his duty, committing rioting and being the member of unlawful assembly and causing simple hurt. Convict has been convicted U/s 147 read with Section 149 IPC, U/s 353 IPC read with Section 149 IPC and U/s 323 IPC read with Section 149 IPC and U/s 148 IPC.
Ld. Addl. P.P for the State has submitted that convict does not deserve any leniency.
On the other hand, Ld. Counsel for the convict has submitted that accused has faced the trial of this case since 2004 and he was very young at the time of commission of offence, now he is matured and behaving sensibly and has family to support. Further, it is submitted that he is not a previous convict and the incident had taken place in the heat of moment, therefore, the convict be given benefit of probation.
Keeping in view the facts and circumstances of this case and the fact that there is no previous involvement of convict in any criminal case, I am of the opinion that the ends of justice would be met in giving the benefit of probation u/s 4 of Probation of Offenders Act to the convict.
Accordingly, convict Bhoora is released on probation of good conduct for a period of two years on his executing personal bond and surety bond in the sum of Rs.10,000/- subject to the condition that he shall keep peace and be of good behaviour during that period. Further he shall not consume liquor or addicted to any narcotic drug, during the period of probation. The convict is also directed to report the probation officer every FIR No. 440/2004, PS : Khajuri Khas, Delhi Page 36 of 43 37 three months who shall file quarterly report in this regard to the court regarding his behaviour and conduct. The convict is further directed to appear and receive sentence during the period of two years, if he is so directed.
Further, the convict is also directed to pay Rs. 5,000/- to the State as the cost of proceedings. The same shall be recovered as per Section 431 of Cr.P.C, if not paid.
Copy of the judgment and order on sentence be given to the convict free of cost and copy of the judgment be also sent to probation officer for compliance. File be consigned to record room.
Announced in the open court
today i.e on 25/03/2011 GURDEEP SINGH
ASJ-04/NE/KKD/25.03.2011
FIR No. 440/2004, PS : Khajuri Khas, Delhi Page 37 of 43
38
IN THE COURT OF SH. GURDEEP SINGH :ADDL. SESSION JUDGE, NORTH EAST DISTRICT,KARKARDOOMA COURTS, DELHI State Vs. Mohd. Julfikar etc. FIR No. 440/2004 PS : Khajuri Khas, Delhi U/s : 186/353/332/307/147/148/149 IPC 25.03.2011 ORDER ON SENTENCE Pr. : Sh. Virender Singh, Ld. Addl. P.P for the State.
Convict Raju @ Mohd. Zarif on bail with Sh. Sarfraz Asif, Advocate Arguments heard on sentence.
Report of probation officer received.
It is submitted on behalf of convict Raju @ Mohd. Zarif that convict is aged about 48 years and at the time of the incident, he was 41 years old. He is chronic patient of T.B. He is married person and has wife and three children to support. He is sole bread earner in the family. It is further submitted that he is not a previous convict and has clean antecedent. It is further submitted that there is no involvement of the convict prior or subsequent to the present offence. Therefore, lenient view is prayed that he be given benefit of probation.
Report of probation officer seen. It is reported by Probation Officer that convict Raju @ Mohd. Zarif was not having any previous involvement in any criminal case. He is not a habitual offender. The FIR No. 440/2004, PS : Khajuri Khas, Delhi Page 38 of 43 39 probation officer has also recommended that there is likelihood of reformation of convict, if released on probation.
In this case the convict has been found guilty of obstructing the public servant in carrying out his duty, committing rioting and being the member of unlawful assembly and causing simple hurt. Convict has been convicted U/s 147 read with Section 149 IPC, U/s 353 IPC read with Section 149 IPC and U/s 323 IPC read with Section 149 IPC Ld. Addl. P.P for the State has submitted that convict does not deserve any leniency.
On the other hand, Ld. Counsel for the convict has submitted that accused has faced the trial of this case since 2004 and has family to support. Further, it is submitted that he is not a previous convict and the incident had taken place in the heat of moment, therefore, the convict be given benefit of probation.
Keeping in view the facts and circumstances of this case and the fact that there is no previous involvement of convict in any criminal case, I am of the opinion that the ends of justice would be met in giving the benefit of probation u/s 4 of Probation of Offenders Act to the convict.
Accordingly, convict Raju @ Mohd. Zarif is released on probation of good conduct for a period of two years on his executing personal bond and surety bond in the sum of Rs.10,000/- subject to the condition that he shall keep peace and be of good behaviour during that period. Further he shall not consume liquor or addicted to any narcotic drug, during the period of probation. The convict is also directed to report the probation FIR No. 440/2004, PS : Khajuri Khas, Delhi Page 39 of 43 40 officer every three months who shall file quarterly report in this regard to the court regarding his behaviour and conduct. The convict is further directed to appear and receive sentence during the period of two years, if he is so directed.
Further, the convict is also directed to pay Rs. 5,000/- to the State as the cost of proceedings. The same shall be recovered as per Section 431 of Cr.P.C, if not paid.
Copy of the judgment and order on sentence be given to the convict free of cost and copy of the judgment be also sent to probation officer for compliance. File be consigned to record room.
Announced in the open court
today i.e on 25/03/2011 GURDEEP SINGH
ASJ-04/NE/KKD/25.03.2011
FIR No. 440/2004, PS : Khajuri Khas, Delhi Page 40 of 43
41
IN THE COURT OF SH. GURDEEP SINGH :ADDL. SESSION JUDGE, NORTH EAST DISTRICT,KARKARDOOMA COURTS, DELHI State Vs. Mohd. Julfikar etc. FIR No. 440/2004 PS : Khajuri Khas, Delhi U/s : 186/353/332/307/147/148/149 IPC 25.03.2011 ORDER ON SENTENCE Pr. : Sh. Virender Singh, Ld. Addl. P.P for the State.
Convict Shakeel Ahmed on bail with Sh. Sarfraz Asif, Advocate Arguments heard on sentence.
Report of probation officer received.
It is submitted on behalf of convict Shakeel that convict is a poor person whose age is about 30 years and at the time of the incident, he was 23 year old. He is married person and has three children to support and is sole bread earner in the family. It is further submitted that he is not a previous convict and has clean antecedent. It is further submitted that there is no involvement of the convict prior or subsequent to the present offence. Therefore, lenient view is prayed that he be given benefit of probation.
Report of probation officer seen. It is reported by Probation Officer that convict Shakeel was not having any previous involvement in any criminal case. He is not a habitual offender. The probation officer has also recommended that there is likelihood of reformation of convict, if released on probation.
FIR No. 440/2004, PS : Khajuri Khas, Delhi Page 41 of 43 42In this case the convict has been found guilty of obstructing the public servant in carrying out his duty, committing rioting and being the member of unlawful assembly and causing simple hurt. Convict has been convicted U/s 147 read with Section 149 IPC, U/s 353 IPC read with Section 149 IPC and U/s 323 IPC read with Section 149 IPC Ld. Addl. P.P for the State has submitted that convict does not deserve any leniency.
On the other hand, Ld. Counsel for the convict has submitted that accused has faced the trial of this case since 2004 and he was very young at the time of commission of offence, now he is matured and behaving sensibly and has family to support. Further, it is submitted that he is not a previous convict and the incident had taken place in the heat of moment, therefore, the convict be given benefit of probation.
Keeping in view the facts and circumstances of this case and the fact that there is no previous involvement of convict in any criminal case, I am of the opinion that the ends of justice would be met in giving the benefit of probation u/s 4 of Probation of Offenders Act to the convict.
Accordingly, convict Shakeel Ahmed is released on probation of good conduct for a period of two years on his executing personal bond and surety bond in the sum of Rs.10,000/- subject to the condition that he shall keep peace and be of good behaviour during that period. Further he shall not consume liquor or addicted to any narcotic drug, during the period of probation. The convict is also directed to report the probation officer every three months who shall file quarterly report in this regard to the court FIR No. 440/2004, PS : Khajuri Khas, Delhi Page 42 of 43 43 regarding his behaviour and conduct. The convict is further directed to appear and receive sentence during the period of two years, if he is so directed.
Further, the convict is also directed to pay Rs. 5,000/- to the State as the cost of proceedings. The same shall be recovered as per Section 431 of Cr.P.C, if not paid.
Copy of the judgment and order on sentence be given to the convict free of cost and copy of the judgment be also sent to probation officer for compliance. File be consigned to record room.
Announced in the open court
today i.e on 25/03/2011 GURDEEP SINGH
ASJ-04/NE/KKD/25.03.2011
FIR No. 440/2004, PS : Khajuri Khas, Delhi Page 43 of 43