Delhi District Court
State vs . (1) Jai Mohan on 28 May, 2011
IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS
JUDGE-II (NORTH-WEST): ROHINI COURTS: DELHI
Sessions Case No. 1208/10
Unique Case ID No. 02404R0348922009
State Vs. (1) Jai Mohan
S/o Om Prakash
R/o 9/4756, Gali No.1,
Main Road Seelampur,
Gandhi Nagar, Delhi
(Convicted)
(2) Imran Khan
S/o Abdul Kalam
D-39/1, Batla House,
Jamia Nagar, Okhla,
New Delhi
(Convicted)
(3) Rahil
S/o Salimuddin
R/o Tadaganj, Distt. Kishanganj,
Ward No.7, Bihar
(Convicted)
(4) Ashfaq @ Rizwan
S/o Jabbar Chaudhary
R/o House No. C-149, Gali
No.4, Mechanic Wali Gali,
Mullah Colony, Gadholi Extn.,
Near Subhaniya Masjid,
Kondli, Delhi
(Convicted)
FIR No.: 575/09
Police Station: Jahangir Puri
Under Section: 186/353/307/34 IPC
St. Vs. Jai Mohan Etc., FIR No. 575/09, PS Jahangir Puri Page No. 1
Date of committal to Sessions Court: 17.4.2010
Date on which orders were reserved: 27.4.2011
Date of Judgment: 28.5.2011
JUDGMENT (ORAL):
As per allegations on 30.10.2009 at about 7:30 pm at Shah Alam Band, Adarsh Nagar Crossing Road, Jahangir Puri all the accused Jai Mohan, Imran Khan, Rahil and Ashfaq @ Rizwan in furtherance of their common intention, voluntarily obstructed SI Ramesh Kumar along with other police officials in discharge of their public functions while the accused Jai Mohan and Imran Khan came on motorcycle bearing no. DL-7SBH-0503 and the accused Rahil and Ashfaq came on another motorcycle bearing no. DL-3SB- 8306 and when SI Ramesh Kumar asked them to stop they all ran away avoiding their instructions and at some distance they all were stopped. It is also alleged that all the accused in furtherance of their common intention assaulted and used criminal force to the aforesaid police officials being public servant in execution of their duties as such public servants and with intent to prevent or deter the aforesaid persons from discharging their duties as such public servants. It has also been alleged that the accused Jai Mohan was having a desi katta in his hand and was swaying the said desi katta and the accused Jai Mohan and Imran Khan in furtherance of their common intention even fired towards the police party with such intention or knowledge that if by that act they caused death, they would be guilty of the offence of murder.
St. Vs. Jai Mohan Etc., FIR No. 575/09, PS Jahangir Puri Page No. 2BIREF FACTS/ CASE OF THE PROSECUTION:
The case of the prosecution is that on 30.10.2009 SI Ramesh Kumar along with SI Sanjeev Verma, Ct. Naresh, Ct. Daya Kishan and Ct. Rajender were on patrolling duty at Shah Alam Bandh Road and when they reached at Adarsh Nagar crossing, SI Kuldeep and Ct. Sanjay met them who had put barricades on road and were checking the vehicles. SI Ramesh Kumar and his party joined the vehicle checking duty and at about 7:30 pm they saw two motorcycles coming from the Adarsh Nagar side and found two boys on each motorcycle. SI Ramesh Kumar gave them indication to stop but they did not stop despite the indication and tried to run away by escaping the barricades on which SI Ramesh Kumar, Ct. Naresh, SI Sanjeev Verma and Ct. Daya Kishan followed the said boys on two motorcycles. The boys who was sitting on the pillion seat of motorcycle bearing no. DL7SBH-0503 and fired from a desi katta on the police party but none of them received any injury and SI Ramesh Kumar managed to apprehend the boy who had fired towards police party whose name was later on revealed as Jai Mohan and the driver of the said motorcycle who was apprehended by Ct. Sajjan disclosed his name as Imran. SI Sanjeev Verma and Ct. Daya Kishan apprehended the other two boys whose names were revealed as Rahil and Ashfaq. On the personal search of the accused Jai Mohan a desi katta was recovered and from the personal search of accused Ashfaq a dagger was recovered. Thereafter the present case was registered and after completion of investigations, the accused were charge sheeted.St. Vs. Jai Mohan Etc., FIR No. 575/09, PS Jahangir Puri Page No. 3
CHARGE:
This court has settled charges under Sections 186/35334 Indian Penal Code against all the accused Jai Mohan, Imran Khan, Rahil and Ashfaq to which they pleaded not guilty and claimed trial. Further, charges under Sections 307/34 Indian Penal Code were settled against the accused Jai Mohan and Imran Khan to which they pleaded not guilty and claimed trial. Charges under Sections 27/25 Arms Act and Section 25 of Arms Act were also settled against the accused Jai Mohan and Ashfaq respectively to which they pleaded not guilty and claimed trial.
EVIDENCE:
In order to prove its case the prosecution has examined as many as seven witnesses as under:
PW1 SI Ram Chander has in his examination in chief by way of affidavit which is Ex.PW1/A proved the Sanction under Section 195 Cr.P.C. which is Ex.PW1/B bearing the signatures of the ACP Sh. Jai Bhagwan at point A. In his cross-examination the witness has deposed that before signing the affidavit Ex.PW1/B he had read over the same and has admitted that the said affidavit is not attested by the Oath Commissioner. He has also admitted that the said affidavit is not entered in any register kept by Oath Commissioner and he did not sign in any register in this regard. According to him, the report filed under Section 195 Cr. P.C which is Ex.PW1/B was not St. Vs. Jai Mohan Etc., FIR No. 575/09, PS Jahangir Puri Page No. 4 prepared in his presence. He has testified that he had identified the handwriting and signatures of the ACP being acquainted with the same having seen him writing and signing during the course of official duties. The witness has further deposed that he was not posted in the ACP office on 23.12.2009 i.e. the date on which the sanction was granted by the ACP under Section 195 Cr. P. C. and states that he is now posted in the office of ACP as SO and the present ACP Jahangir Puri with whom he is now attached is the same ACP who had given the sanction U/s 195 Cr. P. C. and therefore he is acquainted with his handwriting and signature. It has been observed by this court that the witness has deposed on the basis of the official record with regard to which there is a presumption of being regularly maintained under Section 114 of the Evidence Act and is otherwise not supposed to be aware of facts and circumstances of the case.
PW2 ASI Pardeep Kumar has in his examination in chief by way of affidavit which is Ex.PW2/A proved the FIR No. 575/09 copy of which is Ex.PW2/B. He has also proved having made the endorsement on the rukka which is Ex.PW2/C. It was observed by this court that the copy of FIR Ex.PW2/B which is on record does not bear the signature of this witness at the relevant place but the concerned FIR in the register bears his signature at point A on the basis of which the copy placed before the court has been duly proved.
In his cross-examination the witness has deposed that the rukka was not brought by SI Ramesh Kumar at the police station St. Vs. Jai Mohan Etc., FIR No. 575/09, PS Jahangir Puri Page No. 5 and states that the said rukka Ex.PW2/DX-1 was brought by Ct. Naresh Kumar. He has admitted that the affidavit Ex.PW2/A bears the name of SI Ramesh Kumar who has brought the rukka in police station. According to him, he himself had not recorded the FIR in computer and had just made the endorsement on the rukka only. He has deposed that Ct. Naresh remained in the police station for about 25 minutes and he did not hand over the case property to him at the time of handing over the rukka to him. He is unable to tell whether at that point of time the SHO was present in the police station or not. He has admitted that in the FIR register, Book No.26 pertaining to FIR Nos.551/09 to 600/09 the details of case diaries/ Zimnis' the respective column has been left blank which is Ex.PW2/DX-2. He has denied the suggestion that the FIR No.575/09 is ante dated and ante timed. The witness has clarified that the name of SI Ramesh Kumar has been inadvertently mentioned instead the name of Ct. Naresh Kumar as the person who brought the rukka.
PW3 SI Ramesh Kumar has deposed that on 30.10.2009 he was posted as Sub Inspector at Police Station Jahangirpuri and on that day he along with SI Sanjeev Verma, Ct.
Naresh, Ct. Daya Kishan and Ct. Rajender were on patrolling duty at Shah Alam Band Road. According to him, when they reached at Adarsh Nagar crossing at Shah Alam Bagh Road they met SI Kuldeep and Ct. Sajjan who had put barricades on the said Road and were on vehicle checking duty. He has deposed that they parked their vehicles on one side and join them on the vehicle St. Vs. Jai Mohan Etc., FIR No. 575/09, PS Jahangir Puri Page No. 6 checking duty and at 7:30 PM they saw two motorcycles coming from the Adarsh Nagar side and on each motorcycle there were two boys. According to the witness, he gave an indication to these boys to stop but they did not stop despite the indication and tried to run away by escaping the barricade. He has testified that he, Ct. Naresh, SI Sanjeev Verma and Ct. Daya Kishan followed those boys on their two motorcycles to apprehend them when one boy who was sitting behind the Hero Honda motorcycle bearing No.503 whom he was following, fired from a desi katta on them but none of them received any injuries. The witness has also deposed that he crossed those boys and stopped them by putting his motorcycle in front of their bike and thereafter he and Ct. Naresh managed to overpower one boy who was sitting as a pillion rider and had shot at them with his desi katta. According to him, in the mean time Ct. Sajjan who was following these boys on foot overpowered the boy who was driving the motorcycle and SI Sanjeev Verma and Ct. Daya Kishan who were on the other bike also stopped the other motorcycle and apprehended both the boys. All the boys were brought to the picket and on inquiry it was found that the boy who was apprehended by him (SI Ramesh Kumar) and by Ct. Naresh was Jai Mohan Upadhaya; the boy who had been apprehend by Ct. Sajjan was Imran; the boy who had been apprehended by SI Sanjeev Verma was Ashfaq and the boy who had been apprehended by Ct. Daya Kishan was Rahil. According to PW3, he conducted the casual search of all the four accused persons and from the possession of accused Jai Mohan one desi katta was recovered from St. Vs. Jai Mohan Etc., FIR No. 575/09, PS Jahangir Puri Page No. 7 his right hand which was the same katta with which he had fired at the police party. He has proved having prepared a khaka of the katta and the empty cartridge which is Ex.PW3/A and the barrel of the desi katta was found to be 15.8 cms; the body was measuring 11 cms, Butt was 7 cms and total length was 27.5 cms. He has also deposed that the empty cartridge was also measured and the same was having the total length of 5 cms and the width of the same was 1.3 cms. The witness has proved that the katta was converted into a pullanda by putting it in a white cloth and sealed with the seal of RK after which he filled up the FSL form and prepared the seizure memo which is Ex.PW3/B. He has also deposed that from the casual search of Ashfaq a chura was recovered from his right side pocket of his pant and he prepared the khaka of the said chura which is Ex.PW3/C and on measuring the total length of the chura was found to be 26 cms, its handle was 11 cms and maximum width of the blade was 4 cms. He has proved having converted the chura into a pullanda with a help of cloth and sealed with he seal of RS and prepared the seizure memo which is Ex.PW3/D. The witness has further deposed that the personal search of accused Imran and Rahil did not reveal anything and he handed over the seal to Ct. Sajjan after its use and prepared a tehrir which is Ex.PW3/E which he handed over to Ct. Naresh for taking the same to the police station for registration of the FIR. PW3 has further testified that ASI Ram Bahu came to the spot after about half an hour and told him that the investigations of the case had been marked to him after which he handed over to him the case property, documents prepared St. Vs. Jai Mohan Etc., FIR No. 575/09, PS Jahangir Puri Page No. 8 and the accused persons. He has also proved having pointed out the place of incidence to ASI Ram Bahu who prepared the site plan which is Ex.PW3/F. He has correctly identified the accused in the court as well as the case property i.e. the desi katta recovered from the accused Jai Mohan which is Ex.P1; one used cartridge which the witness has correctly identified as the cartridge which he had recovered at the spot from the desi katta recovered from the possession of the accused Jai Mohan which cartridge is Ex.P2; one churra/dagger which the witness has correctly identified to be recovered from the accused Ashfaq which is Ex.P3; the motorcycle bearing No. DL7S-BH-0503 (produced by the father of the accused Jai Mohan) which is Ex.P4 and the other motorcycle bearing No. DL3SB-8306 (not disputed by the accused persons) being driven by accused Rahil on which Ashfaq was sitting behind him which is Ex.P5.
In his cross-examination the witness has deposed that he does not remember his duty hours on 29.10.2009 but on 30.10.2009 his duty hours were all the day for 24 hours. He does not remember whether he was in Police Station through out before 6:45 PM and states that he had proceeded to Shah Alam Band from Police Station on his personal motorcycle which was make Bajaj Discover No. DL-8S-3005 which is in the name of his friend. He does not remember if he had made any departure entry before he left the Police Station for patrolling duty. He is not aware if in case any departure entry was made about the aspect that he was on the St. Vs. Jai Mohan Etc., FIR No. 575/09, PS Jahangir Puri Page No. 9 motorcycle. He also does not remember the number of the other motorcycle but states that it was Make Pulsor and belonged to SI Sanjeev Verma. According to him, in his presence no departure entry was made by any other police officer of the patrolling party and at the time of patrolling he was not carrying any official weapon nor was he carrying any wireless set. He has admitted that there is no procedure in the Police Station regarding deposit of personal mobile phone of the officer in the police station while on duty and that all police officials of patrolling party were having their personal mobiles which they keep with themselves. According to PW3, the government vehicles are also available in the police station for patrolling and even on the date of the incident they were available but states that these vehicles are alloted to the permanent staff who had been allotted the patrolling duty. The witness has also deposed that the duty roaster is prepared on daily basis and states that the distance between the Police Station and the picket where the incident took place is about one and a half kilometer. According to him, the entire patrolling staff had left the Police Station together and they had reached the picket at Shah Alam Band together. PW3 has admitted that the areas through which they passed are thickly populated areas and that Shah Alam Band has large amount of vehicular traffic and states that there are very few persons who passed that area on foot. He has testified that the maximum traffic is present on that road during 8-11AM and during 5-8PM and the picket at Shah Alam Band is a temporary picket constructed by putting barricades. He has denied the suggestion St. Vs. Jai Mohan Etc., FIR No. 575/09, PS Jahangir Puri Page No. 10 that temporary picket is put only when there is some information or emergency and states that permanent picket is the one which has a pakka structure and is designated by DCP as such. According to him, the temporary picket can be put by the SHO depending upon the requirements some times on day to day basis and some times for a fixed period. The witness has admitted that for every temporary picket put on the directions of the SHO there is specific record maintained in the Police Station and states that beat staff is specifically deputed and put on duty for the same. According to him, he is not aware if there is any record of this picket put at Shah Alam Band on date of the incident in the police station and states that many times picket is put on the verbal directions of the SHO by the beat staff. He has denied the suggestion that there was no picket at Shah Alam Band on the date of the incident due to which reason he is unable to give details for the same. According to PW3, on the date of the incident all the members of the patrolling party were in uniform. PW3 has admitted that there was no other public vehicle with these two motorcycles when they were approaching the picket. The witness has further testified that the barricade put on the picket was in S shape and the various police officials standing at the barricade were scattered and some were ahead of the barricade while others were behind. According to him, he was standing in front of the barricade with some other persons from the patrolling party but he does not recollect who all were standing with him ahead of the barricade. He has testified that the road in question is a double Road with a barricader in between and one side road is St. Vs. Jai Mohan Etc., FIR No. 575/09, PS Jahangir Puri Page No. 11 almost measuring about 30 feet. PW3 has further testified that the head lights of both the motorcycles who were approaching the picket were on and the speed at that time must have been 20-30 Kms per hour. He has admitted that there is a patri on the Adarsh Nagar side but there is no patri on the road on the side of Jahangirpuri. The witness has deposed that G-Block, Jahangirpuri is the first residential block present after the Shah Alam Band and states that it is at a distance of 150-200 meters from the crossing. According to PW3, he made a signal from a distance of about ten feet and the motorcycle of accused Jai Mohan was ahead and he started his motorcycle within seconds when the accused passed through their motorcycle. He has further stated that he touched his motorcycle with the motorcycle of Jai Mohan after chasing them for a distance of about 100 meters but he is not aware if Ct. Sajjan and SI Kuldeep were having their motorcycles with them but states that they also chased the accused persons on foot. According to him, at that time no public person was present there and the distance between motorcycle of Jai Mohan and Ashfaq is about two to three meters when he was chasing their motorcycles. He has admitted that the motorcycle of Ashfaq was behind him when he was chasing the motorcycle of Jai Mohan. According to him, my motorcycle and motorcycle of Ashfaq were running together and the distance between his motorcycle and motorcycle of Ashfaq was about four to five feet which were parallel. He has testified that his motorcycle did not fall down on the road while touching the motorcycle with the motorcycle of Jai Mohan and no public person came when he St. Vs. Jai Mohan Etc., FIR No. 575/09, PS Jahangir Puri Page No. 12 pushed down the motorcycle of Jai Mohan. PW3 admits that other vehicles were also moving on the road at that time and the motorcycle of Ashfaq was also stopped by SI Sanjeev Verma without touching with their motorcycle. According to PW3 SI Ramesh Kumar both the riders of the motorcycles were not wearing helmet and his motorcycle did not get damage during the chase or while trying to stop the motorcycle of accused by over taking it and stopping in front of the same. He has testified that it took about one to one and a half minute only in chasing and there were a number of electricity poles on the Bandh due to which reason there is sufficient light in the area. He has denied the suggestion that in a casual search an officer is not authorize to himself check and removed the articles from the body of the person and can only ask the person to remove and hand over the same to him. He has testified that the khaka of the weapons and the seizure memos of the weapons were prepared by him in his handwriting. The witness has admitted that apart from khaka of the weapon and seizure memo of the weapon nothing else were prepared in his own handwriting which took about two and a half hours. He has admitted that the rukka/ tehrir Ex.PW3/E is not in his handwriting and states that Rukka was prepared by SI Sanjeev Verma on his directions and he had only put his signatures at point A. PW3 has further admitted that there is no such endorsement about that the said rukka/ tehrir Ex.PW3/E was prepared on my his direction by SI Sanjeev Verma. The witness has denied the suggestion that no tehrir/ rukka was ever prepared at the spot and the same is concocted and fabricated St. Vs. Jai Mohan Etc., FIR No. 575/09, PS Jahangir Puri Page No. 13 document. He has admitted that no details were mentioned about the registration number of motorcycles of accused persons, their own motorcycles and the pointing out of the touching of the motorcycle with Jai Mohan etc. on the scaled site plan which is Ex.PW3/DX1. The witness has also admitted that on the said site plan he had not put his signature anywhere and has denied that Ex.PW3/DX1 is a false and fabricated document due to which reason nothing was mentioned about the motorcycle numbers etc. and position of the accused persons. He has also admitted that the handwriting on Ex.PW3/A is not in his hand and states that no public person was present at the time of doing writing work or preparation of khaka or memo. According to him, he had not called any public persons passing through the Shah Alam Bandh for joining the investigations or for doing the writing work at Shah Alam Bandh picket. He has admitted that no statement was recorded of any of the police officials/witnesses on his direction and that he had not mentioned anything or details about their own motorcycles used while patrolling on 30.10.2009 in DD No.32A which is Ex.PW3/DX2. He has denied the suggestion that he had planted the katta and the empty cartridge on accused Jai Mohan on the directions of senior police officials/ SHO/ACP Police Station Jahangirpuri. According to the witness, he alone reached at police station at about 11-11:30 PM while other police officers remained at the spot but he does not remember if he had made his arrival entry at the Police Station after reaching at Police Station at 11-11:30 PM on 30.10.2009. He has testified that in his presence the St. Vs. Jai Mohan Etc., FIR No. 575/09, PS Jahangir Puri Page No. 14 investigating officer had not prepared any of arrest memo or personal search memo till he remained at the spot. He has denied the suggestion that there is no recovery of katta and empty cartridge from the possession of accused Jai Mohan or that the accused Jai Mohan was illegally lifted with his father's motorcycle on the way when he was going to his house Noida after seeing his father at Krishna Nagar. PW3 has also denied that the alleged katta and empty cartridge were planted on the accused Jai Mohan or that Jai Mohan was illegally detained in Police Station Jahangirpuri. According to him, he had not personally informed about this incident to any higher police official. He is unable to tell what was the speed of motorcycle while chasing the accused Rahil. He has admitted that the SHO has not given any specific direction orally or in writing for going on patrolling on 30.10.2009 but has denied that accused Rahil was in the market and he forcibly lifted him and falsely implicated him in the present case. The witness has also denied that accused Imran and accused Ashfaq had been lifted from Azadpur Mandi and there was no recovery of dagger from Ashfaq.
PW4 SI Sanjeev Verma has deposed that on 30.10.2009 he was posted as Sub Inspector at Police Station Jahangirpuri and on that day he along with SI Ramesh, Ct .Naresh, Ct. Daya Kishan and Ct. Rajender were on patrolling duty at Shah Alam Band Road. He has deposed that they reached at picket Shah Alam Bagh Adarsh Nagar crossing at 7PM they met SI Kuldeep and Ct. Sajjan who had already put barricades on the said Road and were on vehicle checking duty. According to him, they also joined St. Vs. Jai Mohan Etc., FIR No. 575/09, PS Jahangir Puri Page No. 15 them in the checking duty and at 7:30 PM two motorcycles coming from the Adarsh Nagar side and on each motorcycle two boys were sitting and SI Ramesh gave an indication to these boys to stop. The said boys did not stop despite the indication and first slowed their motorcycles near the barricades and then suddenly increased the speed and tried to run away. He has testified that on seeing this he along with Ct. Daya Kishan and SI Ramesh along with Ct. Naresh followed these boys on their two motorcycles. According to him, one boy who was sitting on the pillion seat of the splendor motorcycle fired at SI Ramesh with his katta but no body was injured after which SI Ramesh stopped this motorcycle by coming in front of it as a result of which the splendor motorcycle hit the bike of SI Ramesh and stopped. He has testified that he was on the other bike and he also stopped the second bike by coming in front of the same. He has proved that he apprehended the boy on the pillion seat whereas Ct. Daya Kishan apprehended the boy who was driving the bike make Pulsor. According to PW4, SI Ramesh and Ct. Naresh overpowered the boy sitting on the pillion seat and Ct Sajjan overpowered the driver of the splendor bike. He has further deposed that all the boys were brought near the picket and interrogated wherein it was revealed that the name of the boy who was apprehended by him was Ashfaq, the boy who had been apprehended by SI Ramesh was Jai Mohan; the boy who had been apprehend by Ct. Sajjan was Imran and the boy who had been apprehended by Ct. Daya Kishan was Rahil. According to him, he carried out the casual search of the accused Ashfaq and a dagger St. Vs. Jai Mohan Etc., FIR No. 575/09, PS Jahangir Puri Page No. 16 was recovered from the right side dub of his pant which dagger was handed over by him to SI Ramesh who prepared the khaka of the said chura which is Ex.PW3/C and on measuring the total length of the chura was found to be 26 cms, its handle was 11 cms and maximum width of the blade was 4 cms. He has proved that SI Ramesh thereafter converted the chura/dagger into a pullanda with a help of cloth and sealed with he seal of RS and prepared the seizure memo which is Ex.PW3/D. PW4 has testified that accused Jai Mohan was carrying a katta in his right hand with which he had fired at the police party and SI Ramesh took the katta from the accused Jai Mohan and checked the same which was found to contain an empty cartridge. He has testified that SI Ramesh prepared a khaka of the katta and the empty cartridge which is Ex.PW3/A. The witness has further proved that the personal search of accused Imran and Rahil did not reveal anything and SI Ramesh handed over the seal to Ct. Sajjan after its use and prepared a tehrir which he handed over to Ct. Naresh for taking the same to the police station for registration of the FIR. According to the witness, after at about 10:30 PM ASI Ram Bahu came to the spot and told them that the investigations of the case had been marked to him after which SI Ramesh handed over to him the case property/ pullandas, documents prepared i.e. seizure memos, Khakas, FSL form and the accused persons. He has proved that ASI Ram Bahu also formally arrested the accused persons after conducting their search and recorded his statement thereafter.
St. Vs. Jai Mohan Etc., FIR No. 575/09, PS Jahangir Puri Page No. 17The witness has correctly identified all the accused in the court as well as the case property i.e. one churra/dagger recovered from the accused Ashfaq which is Ex.P3; motorcycle bearing No. DL7S-BH-0503 which is not disputed by the accused persons on which accused Jai Mohan was the pillion rider and was being driven by Imran which motorcycle is Ex.P-4 and other motorcycle bearing No. DL3SB-8306 which is not disputed by the accused persons as being driven by Rahil on which Ashfaq was sitting behind him which motorcycle is Ex.P5.
The cross-examination of this witness was deferred but thereafter he did not submit himself for cross-examination despite the fact that his conduct was highlighted to the Deputy Commissioner of Police. Therefore, his entire examination in chief is liable to be discarded.
PW5 HC Rajesh Kumar is the MHC(M) who has deposed that on 30.10.2009 he was working as MHC(M) at Police Station Jahangirpuri and on that day ASI Ram Bahu had deposited one sealed parcel containing dagger with the seal of RS, one sealed parcel containing desi katta and one empty cartridge with the seal of RS, one motorcycle bearing No. DL7SB-H-0503 and another motorcycle bearing No.DL3SV-8306 along with jamatalashi of three accused persons which he received vide entry No.3929 of register No.19. According to him, on 22.12.2009 SI Ram Bahu had deposited one sealed parcel containing three cartridges with some seal which he received vide entry No. 3987 of register No. 19. He St. Vs. Jai Mohan Etc., FIR No. 575/09, PS Jahangir Puri Page No. 18 has further deposed that on 23.12.2009 he send two sealed parcels to FSL Rohini through Ct. Rajender vide RC No.249/21 and he collected the result of the FSL through Ct. Daya Kishan on 11.02.2010 which was handed over to the investigating officer. The witness has also testified that on 23.11.2009 the motorcycle No. DL7SB-H-0503 was released on superdari to one Om Parkash. He has placed on record the photocopies of the aforesaid entires which are Ex.PW5/A running into four pages and the copy of RC which is Ex.PW5/B running into two pages.
In his cross-examination the witness has deposed that he was on duty throughout the day for 24 hours on 30.10.2009, 23.11.2009, 22.12.2009 and on 23.12.2009 but he is unable to tell the time when the investigating officer has deposited pullandas to him. He has admitted that the encircled portion with the red ink on Ex.PW5/A is not in his handwriting and states that the investigating officer has recorded his statement on 23.12.2009 but he is unable to tell the exact time when his statement was recorded and even he cannot tell whether it was in morning, noon or night. According to him, he collected the result of the FSL through Ct. Daya Kishan on 11.02.2010. He does not remember whether the investigating officer had recorded the statement of Ct. Sajjan or not. He has denied the suggestion that the name of Rajender in the encircled portion with red ink at point B is written with different ink an aspect also observed by the court (that the ink appeared to be different). He has admitted that the investigating officer has stated that the pullanda contained one katta and empty cartridge that is why he had St. Vs. Jai Mohan Etc., FIR No. 575/09, PS Jahangir Puri Page No. 19 stated so in the register No. 19. The witness has denied the suggestion that the pullandas were tampered with while it was in his custody on the directions of the investigating officer and other senior officials of police station. He has admitted that the investigating officer has not collected the said pullanda for sending to FSL between 30.10.2009 to 23.12.2009 despite their presence in the police station and that the investigating officer has not deposited the FSL form along with the pullandas to him at any point of time. The witness has also denied that the entires made in the register No.19 as above were manipulated, fabricated and as such false entry or that investigating officer had not recorded his statement at any point of time.
PW6 ASI Ram Bhau is the investigating officer who has deposed that on 30.10.2009 he was posted at Police Station Jahangirpuri and on that day further investigations of this case was handed over to him. According to him, he received the case file from SI Ramesh Kumar and perused the same after which he went to the spot where he met SI Ramesh, SI Kuldeep, SI Sanjeev, Ct. Daya Kishan, Ct. Naresh, Ct. Sajjan and Ct. Rajender. The witness has testified that they had produced before him four boys namely Jai Mohan, Rahil, Imran and Ashfaq; two sealed parcels containing one desi katta and one empty cartridge and one churra duly sealed with the seal of RS along with the seizure memos sketch etc. He has proved having prepared the site plan at the instance of SI Ramesh which is Ex.PW3/F after which he interrogated the aforesaid accused and arrested them in this case vide memos St. Vs. Jai Mohan Etc., FIR No. 575/09, PS Jahangir Puri Page No. 20 Ex.PW6/A to Ex.PW6/D and they were personally searched vide memos Ex.PW6/E to Ex.PW6/H. The witness has also proved having seized two motorcycles bearing No. DL7SBH-0503 and DL3SV-8306 vide memos Ex.PW6/I and Ex.PW6/J respectively. The investigating officer has deposed that he relived SI Ramesh Kumar from the spot and the case property was deposited in the Malkhana and he recorded the statements of witnesses. He has proved having collected the complaint under Section 195 Cr.P.C. from the ACP Sh. Jai Bhagwan which is Ex.PW1/B. He has also deposed that on taking permission from the competent authority he sent the exhibits to FSL Rohini and collected the result also later on. The witness has further proved having collected sanction under Section 39 of the Arms Act after which he prepared the charge sheet and filed in the court. According to him, he released one motorcycle bearing No. DL-7SBH-0503 to Om Parkash vide superdarinama Ex.PW6/K. He has correctly identified all the accused in the court.
In his cross-examination the witness has stated that he proceeded from police station to the spot at 10:25 PM on 30.10.2009 on his own private motorcycle. He is unable to tell the complete number of his motorcycle and states that he had not made his departure entry in the police station. The witness has admitted that he had not taken the written requisition regarding the taking over or handing over the investigations of this case to him from SI Ramesh Kumar and that by the rank he is the junior in rank to SI Ramesh Kumar. He has further admitted that the Inspector rank St. Vs. Jai Mohan Etc., FIR No. 575/09, PS Jahangir Puri Page No. 21 officials were also present in the police station on 30.10.2009 when he had taken over the investigations of this case. According to him, SI Ramesh Kumar handed over to him two pullandas, seizure memos of pullandas and sketches only. He has testified that he completed all the proceedings regarding preparation of arrest memos, personal memos of accused persons till 11:15 PM and thereafter he reached BJRM hospital at Jahangirpuri, Delhi at about 11:30 PM by two TSR. According to PW6, he had paid the fare of those two TSRs and he did not take any receipt from the TSR drivers nor had he recorded the statement of the TSR drivers in that regard. He has testified that he remained at the hospital for about 15-20 minutes in all and during this the medical examinations of all the above four accused persons were completed by the concerned doctors. He has admitted that the statements of SI Sanjeev Verma, Ct. Naresh No 837 and witness Om Parkash recorded under Section 161 Cr. P.C. were not in his handwriting. The witness has further deposed that he had recorded the statement of SI Ramesh and SI Kuldeep Singh at the spot which took about ten to fifteen minutes only. He has admitted that during the recording of the above mentioned statements all other police officials were also present at the spot and that when he reached the spot from the police station public persons were gathered there but they were four to five in number. PW6 has also admitted that other passerby and public person were also present there during his investigations. According to him, he had not seen the seal of RS in the hand of Ct. Sajjan at any point of time during his investigations and he is also not aware St. Vs. Jai Mohan Etc., FIR No. 575/09, PS Jahangir Puri Page No. 22 about the facts of handing over the RS seal to SI Ramesh Kumar by Ct. Sajjan at any point of time. He is unable to tell as to when the said seal i.e. of RS was handed over to Ct. Sajjan to SI Ramesh Kumar because the said seal belonged to SI Ramesh Kumar. He has admitted that the arrest memo and personal search memo of accused Jai Mohan were prepared by him and that the column No.6 of arrest memo of accused Jai Mohan Ex.PW6/D remained blank. The witness has denied the suggestion that accused Jai Mohan was illegally lifted on 29.10.2009 and later on detained in the police station Police Station Jahangir Puri when he was going from the house of his parents there at Gandhi Nagar, Delhi to his house at Noida on motorcycle because his father was not well or that he had taken the thumb impression of the mother of accused Jai Mohan on the said arrest memo Ex.PW6/D forcefully in the police station itself. PW6 has admitted that he had not made any public person as witness of the above referred documents/ memos pertaining to accused Jai Mohan despite their presence and that he has not recorded any disclosure statement of accused Jai Mohan despite of his telling about verbally. According to him, he had sent the photocopies of the statements recorded under Section 161 Cr.P.C. of the witnesses, other memos etc. through post to Addl. DCP for seeking sanction under Section 39 of Arms Act. He is unable to give any explanation for sending the pullandas to FSL Rohini after a considerable delay but has denied the suggestion that he did not send the same on time as the said katta and empty cartridge were never recovered at the pointing out or his person of accused Jai St. Vs. Jai Mohan Etc., FIR No. 575/09, PS Jahangir Puri Page No. 23 Mohan. He has no knowledge about the call made on 100 number by Smt. Mahaviri (mother of accused Jai Mohan) when Jai Mohan did not reach his house on 30.10.2009 vide Ex.PW6/DB running into three pages nor has he any knowledge if any investigation was done by Police official of Police Station Gandhi Nagar regarding the same call vide Ex.PW6/DC running into two pages. According to PW6, the statements of other police officials namely Ct. Naresh, Ct. Sajjan, Ct. Daya Kishan and SI Sanjeev Verma were recorded by him in his own handwriting at police station Jahangirpuri, Delhi, after midnight of 30.10.2009. He has admitted that he has not ask or investigate about the source of katta and cartridges from the accused at any point of time during his investigations and has denied that since the katta and cartridge were planted on the accused Jai Mohan by him and his colleagues and that is why he has not investigated the source of the said katta and cartridge. The witness has denied the suggestion that the katta and empty cartridge were planted on the accused Jai Mohan after firing from the said katta. He has admitted that he has not mentioned the position of any accused person by name in the rough site plan Ex.PW3/F. The witness has denied the suggestion that the same were not mentioned because the accused person never apprehended or arrested at the spot at any point of time. According to him, he had not got any mechanical inspection of the motorcycle bearing No. DL7SBH- 0503 conducted as there was no damage on the motorcycle. He has admitted that he has not placed the original MLC of accused prepared at BJRM Hospital. He has denied the other various St. Vs. Jai Mohan Etc., FIR No. 575/09, PS Jahangir Puri Page No. 24 suggestions put by the Ld. defence counsels.
PW7 Sh. B. Shankar Jaiswal, Addl. DCP, NW District has testified that on 07.04.2010 he was working as Addl. DCP, NW District Delhi. According to him, his subordinate staff produced the FIR, report under Section 173 Cr.P.C. statement of prosecution witnesses under Section 161 Cr.P.C., seizure memos, ballistic report before him and he perused the same and on being satisfied he accorded sanction under Section 39 of Arms Act to prosecute the accused Jai Mohan Upadhay, s/o Sh. Om Parkash for the offence U/s 25/27/54/59 Arms Act and U/s 186/353/307/34 IPC in this case vide Ex.PW7/A. In his cross-examination the witness has deposed that the investigating officer had submitted the case file in original before him. He has denied the suggestion that the investigating officer never produced any original document before him or that he had not applied his mind while according the said sanction.
Statement of accused/ defence evidence:
After completion of prosecution evidence, statements of the accused were recorded under Section 313 Code of Criminal Procedure wherein all the incriminating material was put to them, which they have denied. The accused Jai Mohan has stated that he is innocent and is a victim of police atrocities since 1999 and the police always remained inimical against him and his family. The accused has also stated that he has no connection with the co- accused persons and he has been falsely implicated in the present St. Vs. Jai Mohan Etc., FIR No. 575/09, PS Jahangir Puri Page No. 25 case due to some malafide intention. According to him, all the witness being police witness, have deposed against him since he and his parents have filed number of complaints against the various police officials of Police Station Gandhi Nagar due to which reason he has been falsely implicated in number of cases wherein he has been discharged/ acquitted and similarly in the present case he has also been falsely implicated after being lifted illegally. The accused has further stated that the alleged memos are false and fabricated and handy work of the police and he was lifted on 29.10.2009 when he was coming from his parents house at Gandhi Nagar on motorcycle and was going towards his house at Noida as his father was ill and later on he has been falsely implicated in the present case. He has alleged that the katta and cartridge were planted upon him by the police and subsequently taken his signatures on blank papers.
The accused Imran Khan has stated that he is innocent and has been falsely implicated in the present case. According to him, no recovery has been effected from him and was not even present at the spot on the incident as alleged nor he knew the co- accused Jai Mohan, Ashfaq and Rahil. He has further stated that he was lifted from Azadpur Mandi on 28.10.2009 and was kept in police station and thereafter on 31.10.2009 he was produced in the court in connection of this case and he has nothing to do with the alleged incident.
The accused Rahil has similarly stated that he is innocent and has been falsely implicated in the present case.St. Vs. Jai Mohan Etc., FIR No. 575/09, PS Jahangir Puri Page No. 26
According to him, no recovery has been effected from him and was not even present at the spot on the incident as alleged nor he knew the co-accused Jai Mohan, Ashfaq and Imran Khan. He has further stated that he was lifted from the Market where he had gone for marketing.
The accused Ashfaq has also stated that he is innocent and has been falsely implicated in the present case. According to him, no recovery has been effected from him and was not even present at the spot on the incident as alleged nor he knew the co- accused Jai Mohan, Imran Khan and Rahil. He has further stated that he was lifted from Azadpur near Akash Cinema.
The accused Jai Mohan has examined himself as DW1 in his defence who has deposed that on 29.10.2009 when he had gone to his parents house at 9/4756, Gali no.1, Main Road, Old Seelam Pur, Gandhi Nagar, Delhi-110031 to meet his parents as his father was not well and after visiting to his parents when he was going to his then residence at Noida (UP). According to him, when he reached at Mayur Vihar, Delhi a Tata Sumo hit his motorcycle on which he fell down on road and seven to eight persons came down from the Tata Sumo and forcibly and illegally lifted him and thereafter the said persons told him that they were the police officials and forcibly taken him to police station, Jahangir Puri where the police had given physical and mental torture to him and taken his signature on various blank papers. According to him, he was not allowed to contact his parents on 29.10.2009 and 30.10.2009 but the police had taken the thumb impressions of his St. Vs. Jai Mohan Etc., FIR No. 575/09, PS Jahangir Puri Page No. 27 mother on arrest memo when it was blank. The witness has further deposed that when he had not reached to his house at Noida on 29.10.2009 till night or even on 30.10.2009 till noon time, then, his wife had come to his parents house and told him about his not reaching at Noida on which his parents made a PCR call on 30.10.2009 at about 2:25 pm from a mobile phone, the relevant acknowledgment of RTI and copy of PCR form no.1 are collectively Ex.DW1/A to Ex.DW1/C. He has also deposed that prior to this his parents had filed various complaints/ applications against the police officials against the atrocities of the police time to time and the relevant photocopies of the said complaints/ applications are Ex.DW1/D, Ex.DW1/E, Ex.DW1/F and Ex.DW1/G. The witness has also testified that his father's motorcycle was also falsely involved by the police and nothing was recovered from him and the police has planted the weapon of offence on him.
In his cross-examination the witness has deposed that on the day of incident he was going back from his father's house bearing no. 9/4756,Main Road, Gali No.1, Old Seelam Pur, Gandhi Nagar to his house at Noida where he is residing on rent. According to him, there is no number of the premises since the area where he stay is unauthorized and he had left his father's house at about 11:00 am. He has testified that the incident where the Tata Sumo hit his motorcycle was on the main Mayur Vihar Road and that he is residing in Noida for last four years and prior to that he was residing with his father at Gandhi Nagar. The witness has St. Vs. Jai Mohan Etc., FIR No. 575/09, PS Jahangir Puri Page No. 28 admitted that the entire area is known to him and he can only tell that there were some apartments at the place where the incident took place but he is unable to tell the names of the apartments. He has admitted that the place where the alleged incident took place has a number of societies which are occupied by people with security guards. DW1 has further admitted that there is a metro line on the same road and states that the metro has now started. He has further admitted that on the date of incident construction work of the Metro was going on but has denied the suggestion that there is a heavy traffic round the clock on the main Mayur Vihar Road and states that the traffic is heavy only in the morning and in the evening. The witness has further admitted that there is a moving traffic round the day and states that nobody came to help him when he was hit by the Tata Sumo since he was immediately lifted inside the vehicle. He has also admitted that his bike was left behind and the keys were taken by the police and it was one of the police official who drove his bike from the spot. According to him, the person who was driving the bike was in uniform but he could not notice his name and states that a cloth was put on his face immediately. He has testified that there are number of other criminal cases pending against him and admits that there were around 30-40 cases against him. He has denied the suggestion that the complaint filed by him is only an after thought to create defence for himself or that no incident took place as aforesaid and he created/ concocted the same and it is for this reason that he is St. Vs. Jai Mohan Etc., FIR No. 575/09, PS Jahangir Puri Page No. 29 unable to tell about the exact details of the place where the alleged incident took place.
FINDINGS:
I have heard arguments advanced before me by the Ld. Addl. PP for the State and the Ld. Defence counsels. I have also considered the written argument/ memorandum of arguments filed on behalf of the accused and the evidence on record. My findings are as under:
Identity of the accused:
In so far as the identity of the accused Jai Mohan, Imran Khan, Rahil, Ashfaq @ Rizwan is concerned they have all been identified by the police witnesses. I may observe that SI Sanjeev Verma (PW4) has submitted for examination in chief but has never appeared to submit for cross-examination. As evident from the proceeding sheet dated 1.11.2010 and his conduct has been placed before the Deputy Commissioner of Police for appropriate action despite which he has not appeared for cross-examination and hence his entire examination is liable to be discarded.
The only evidence now remains is the testimony of SI Ramesh Kumar (PW3) whose testimony does not find any corroboration from any other source. SI Ramesh Kumar has identified all the four accused in the present and there is no reason to disbelieve his testimony in this regard. Hence, I hereby hold that the identity of the accused stands established.St. Vs. Jai Mohan Etc., FIR No. 575/09, PS Jahangir Puri Page No. 30
Allegations against the accused:
The case of the prosecution is that on 30.10.2009 he along with SI Ramesh Kumar, SI Sanjeev Verma, Ct. Naresh, Ct. Daya Kishan and Ct. Rajender were on patrolling duty at Shah Alam Bandh Road and when they reached at Adarsh Nagar Crossing at Shah Alam Bagh Road they met SI Kuldeep and Ct. Sajjan who had put barricades on the road and they joined them on vehicle checking duty. At 7:30 pm they saw two motorcycles coming from the Adarsh Nagar side and on each motorcycle there were two boys on which SI Ramesh Kumar gave an indication to those boys to stop but they did not stop despite the indication and tried to run away by escaping the barricade. SI Ramesh Kumar, Ct. Naresh , SI Sanjeev Verma and Ct. Daya Kishan followed those boys on their motorcycles to apprehend them on which one boy who was sitting behind the Hero Honda motorcycle bearing no. 503 whom SI Ramesh Kumar was following is stated to have fired from a Desi Katta but known received injuries on which the police crossed them by putting their motorcycle in front of the bikes of those boys and Ct. Naresh managed to overpower one boy who was sitting as a pillon rider and had shot at them with his desi katta. The name of the driver of the said Hero Honda motorcycle was also overpowered by Ct. Sajjan whose name was later on revealed as Imran whereas the boy who was sitting behind him and had fired at police was Jai Mohan. The boy who was apprehended by SI Sanjeev Verma was Ashfaq and the boy apprehended by Ct. Daya Kishan was Rahil. A Desi Katta is stated to have been recovered St. Vs. Jai Mohan Etc., FIR No. 575/09, PS Jahangir Puri Page No. 31 from the right hand of accused Jai Mohan with which he had fired at police party.
SI Ramesh Kumar (PW3) in his testimony has supported the entire case of the prosecution in toto and has been cross- examined in length but I may observe that his testimony does not find any corroboration from any independent source. SI Sanjeev Verma who had appeared in the court and has deposed as PW4, has not submitted himself for cross-examination due to which his examination in chief is liable to be discarded. Further, it is evident that at the time when the alleged incident had happened at about 6:45 pm, despite the fact that the spot in question is a motorable road, no public person has been made a witness to the incident. I am sure that in the eventuality where four boys on two motorcycles jumped the police barricade and attempted to flee when police officials tried to chase them, the incident would have been noticed by many persons and that too when one of the boys fired at the police party with a desi katta. Interestingly neither anyone from the police party got injured nor the bullet hit any of passers-byes which is improbable under the given circumstances considering that the spot in question is a motorable road with a heavy vehicular traffic. Further, after the incident when the accused were apprehended there was sufficient opportunity with the police officials to stop other passer-byes and join them in the investigations before actually conducting the personal search of the accused when arms were recovered, which again has not been done. The uncorroborated version of SI Ramesh Kumar to the extent of firing and subsequent St. Vs. Jai Mohan Etc., FIR No. 575/09, PS Jahangir Puri Page No. 32 recovery of the weapons from the accused does not inspire confidence.
Common intention:
The case of the prosecution is that all the accused Jai Mohan, Imran Khan, Rahil and Ashfaq @ Rizwan in furtherance of their common intention voluntarily obstructed SI Ramesh Kumar along with other police officials in discharge of their public functions and assaulted and used criminal force to the aforesaid police officials being public servant in execution of their duties as such public servants and with intent to prevent to deter the police officials from discharging their duties.
Section 34 of Indian Penal Code has been enacted on the principal of joint liability in the doing of a criminal act. The section is only a rule of evidence and does not create a substantive offence. The distinctive feature of the section is the element of participation in action. The liability of one person for an offence committed by another in the course of criminal act perpetrated by several persons arises under Section 34 if such criminal act is done in furtherance of common intention of the persons who join in committing the crime. Direct proof of common intention is seldom available and, therefore, such intention can only be inferred from the circumstances appearing from the proved facts of the case and the proved circumstances. In order to bring home the charge of common intention, the prosecution has to establish by evidence, whether direct or circumstantial, that there was plan or meeting of St. Vs. Jai Mohan Etc., FIR No. 575/09, PS Jahangir Puri Page No. 33 minds of all the accused persons to commit the offence for which they are charged with the aid of Section 34, be if pre-arranged or on the spur of the moment, but it must necessarily be before the commission of the crime. The true concept of the Section is that if two or more persons intentionally do an act jointly, the position in law is just the same as if each of them has done it individually by himself. As observed in Ashok Kumar Vs. State of Punjab reported in AIR 1997 (1) SCC 746 the existence of a common intention amongst the participants in a crime is the essential elements for application of this section. It is not necessary that the acts of the several persons charged with commission of an offence jointly must be the same or identically similar. The acts may be different in character, but must have been actuated by one and the same common intention in order to attract the provision. The Section does not say "the common intentions of all" nor does it say "an intention common to all". Under the provisions of Section 34 the essence of the liability is to be found in the existence of a common intention animating the accused leading to the doing of a criminal act in furtherance of such intention. For applying section 34, it is not necessary to show some over act on the part of the accused. The above position was highlighted in Girija Shankar Vs. State of U.P., reported in 2004(3) SCC 793.
Applying the settled principles of law to the facts of the present case, there is nothing to show/ prove that all the accused were known to each other or had acted in consortium. Further, there is also nothing on record to show that all the accused had St. Vs. Jai Mohan Etc., FIR No. 575/09, PS Jahangir Puri Page No. 34 shared common intention pursuant to which and in furtherance of the same they had assaulted any public servant.
Complaint under Section 195 Code of Criminal Procedure:
The complaint under Section 195 Code of Criminal Procedure Ex.PW1/B which has been duly proved by SI Ram Chander (PW1), SO to ACP has also proved and substantiated the aspect that SI Ramesh Kumar, a public servant was on official duty and the fact that all the four accused were apprehended at the spot proves the presence of SI Ramesh Kumar on duty and there is no reason to doubt the same.
FINAL FINDINGS:
In the case of Sharad Birdhichand Sarda Vs. State of Maharastra, reported in AIR 1984 SC 1622, the Apex Court has laid down the tests which are pre-requisites before conviction should be recorded, which are as under:
1. The circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned 'must or should' and not 'may be' established;
2. The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they St. Vs. Jai Mohan Etc., FIR No. 575/09, PS Jahangir Puri Page No. 35 should not be explainable on any other hypothesis except that the accused is guilty;
3. The circumstances should be of conclusive nature and tendency;
4. They should exclude every possible hypothesis except the one to be proved; and
5. There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
Applying the settled principles of law to the facts of the present case, it is evident that the identity of all the four accused namely Jai Mohan, Imran Khan, Rahil and Ashfaq @ Rizwan stand established. It has also been proved that the SI Ramesh Kumar along with SI Sanjeev Verma, Ct. Naresh, Ct. Daya Kishan and Ct. Rajender were on patrolling party at Shah Alam Bandh Road and when they reached at Adarsh Nagar crossing SI Kuldeep and Ct. Sanjay met them who had put barricades on road and were checking the vehicles. It stands proved that SI Ramesh Kumar and his party joined the vehicle checking duty. It also stands established that at about 7:30 pm the accused were found coming on two motorcycles from Adarsh Nagar side on which SI Ramesh Kumar gave them indication to stop but the accused did not stop and tried to flee.
St. Vs. Jai Mohan Etc., FIR No. 575/09, PS Jahangir Puri Page No. 36Hence, I hereby hold that in so far as the allegations under Section 186 Indian Penal Code are concerned, the prosecution has proved the identity of the accused, the manner in which the offence has been committed, place of commission of the offence, the investigation including the documents prepared. There is nothing which could shatter the veracity of the prosecution witnesses or falsify the claim of the prosecution. The prosecution witnesses have materially supported the prosecution case and the testimonies of the prosecution witnesses do not suffer from any infirmity, inconsistency or contradiction and are consistent and corroborative. The evidence of the prosecution witnesses is natural and trustworthy and the witnesses of the prosecution have been able to built up a continuous link.
However, in so far as the ingredients of Sections 353 & 307 Indian Penal Code are concerned, it is evident that no person had received any injury in the alleged incident nor the incident of firing and recovery of firearm from accused Jai Mohan and dagger from the accused Ashfaq stands proved beyond reasonable doubt for which benefit of doubt is being given to all the accused.
In view of my aforesaid discussion, I hereby hold that the prosecution has not been able to prove and substantiate the allegations against the accused in so far as the offence under Section 353/34 Indian Penal Code for which all the accused are hereby acquitted. The accused Jai Mohan is also acquitted of the charges under Section 307/34 Indian Penal Code and Sections St. Vs. Jai Mohan Etc., FIR No. 575/09, PS Jahangir Puri Page No. 37 25/27 of Arms Act. Further, the accused Ashfaq @ Rizwan is also acquitted of the charge under Section 25 of Arms Act. However, it has been proved by the prosecution that the accused Jai Mohan, Imran Khan, Rahil and Ashfaq @ Rizwan have voluntarily obstructed the public servants in discharge of their public functions for which they are held guilty of the offence under Section 186 Indian Penal Code for which they are convicted accordingly.
Case be listed for arguments on the point of sentence at 2:00 pm. Announced in the open court (Dr. KAMINI LAU) Dated: 28.5.2011 ASJ-II(NW)/ ROHINI St. Vs. Jai Mohan Etc., FIR No. 575/09, PS Jahangir Puri Page No. 38 IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS JUDGE-II (NORTH-WEST): ROHINI COURTS: DELHI Sessions Case No. 1208/10 State Vs. (1) Jai Mohan S/o Om Prakash R/o 9/4756, Gali No.1, Main Road Seelampur, Gandhi Nagar, Delhi (2) Imran Khan S/o Abdul Kalam D-39/1, Batla House, Jamia Nagar, Okhla, New Delhi (3) Rahil S/o Salimuddin R/o Tadaganj, Distt, Kishanganj, Ward No.7, Bihar (4) Ashfaq @ Rizwan S/o Jabbar Chaudhary R/o House No. C-149, Gali No.4, Mechanic Wali Gali, Mullah Colony, Gadholi Extn., Near Subhaniya Masjid, Kondli, Delhi FIR No.: 575/09 Police Station: Jahangir Puri Under Section: 186/353/307/34 IPC Date of conviction: 28.5.2011 Arguments heard on: 28.5.2011 St. Vs. Jai Mohan Etc., FIR No. 575/09, PS Jahangir Puri Page No. 39 Date of sentence: 28.5.2011 APPEARANCE:
Present: Sh. Taufiq Ahmed, Ld. Addl. Public Prosecutor for the State.
Sh. A.K. Chaudhary and Sh. U.K. Giri Advocates for all the convicts.
All the convicts Jai Mohan and Rahil on bail and accused Imran Khan and Asfaq @ Rimzan in judicial custody.
ORDER ON SENTENCE:
Vide my detailed judgment the accused Jai Mohan, Imran Khan, Rahil and Ashfaq @ Rizwan have been held guilty of the Section 186 Indian Penal Code for which they are accordingly convicted but they have been acquitted of the charges under Section 353/34 Indian Penal Code. The accused Jai Mohan has also been acquitted of the charge under Section 307 Indian Penal Code and Section 27/25 of Arms Act. Further the accused Ashfaq @ Rizwan has been acquitted of the charge under Section 25 Arms Act.
The case of the prosecution is that on 30.10.2009 at about 7:30 pm at Shah Alam Band, Adarsh Nagar crossing road Jahangir Puri all the accused namely Jai Mohan, Imran Khan, Rahil and Ashfaq @ Rizwan in furtherance of their common intention voluntarily obstructed SI Ramesh Kumar along with other police officials in discharge of their public functions while the accused Jai St. Vs. Jai Mohan Etc., FIR No. 575/09, PS Jahangir Puri Page No. 40 Mohan and Imran Khan came on motorcycle bearing no. DL-7SBH- 0503 and accused Rahil and Ashfaq came on another motorcycle bearing no. DL-3SB-8306 and when SI Ramesh Kumar asked them to stop, they all ran away avoiding their instructions and were stopped at some distance. Further, all the accused used criminal force to the aforesaid police officials being public servant in the execution of their duties as such public servants and with intent to prevent or deter the aforesaid persons from discharging their duties as such public servants. It has also been alleged that the accused Ashfaq @ Rizwan was found in possession of one Churra (dagger) and the accused Jai Mohan was found swaying country made pistol containing one cartridge in the air and even fired towards the police party.
However, on the basis of the testimonies of the witnesses examined by the prosecution, the accused Jai Mohan, Imran Khan, Rahil and Ashfaq @ Rizwan have been held guilty of the Section 186 Indian Penal Code for which they are accordingly convicted but they have been acquitted of the charges under Section 353/34 Indian Penal Code. The accused Jai Mohan has also been acquitted of the charge under Section 307 Indian Penal Code and Section 27/25 of Arms Act. Further the accused Ashfaq @ Rizwan has been acquitted of the charge under Section 25 Arms Act.
I have heard the arguments on the point of sentence. The convict Jai Mohan is aged about 32 years having a family comprising of aged parents, two sisters, two brothers, wife and two St. Vs. Jai Mohan Etc., FIR No. 575/09, PS Jahangir Puri Page No. 41 sons. He is a Matriculate and is having a garment shop in partnership. He is a first time offender and has already remained in judicial custody for about eleven months and twenty three days.
The convict Rahil is a young boy of 22 years having a family comprising of aged widow mother, four brothers and one sister. He is 12th class pass and is working as a helper in a Medical Store. He is a first time offender and has already remained in judicial custody for about eleven months and twenty days.
The convict Imran Khan is a young boy of 26 years having a family comprising of one one younger brother and his parents have already expired. He is 12th class pass and is a Property Dealer by profession. He is not involved in any other case and has already remained in judicial custody for about One year, six months and twenty seven days.
The convict Ashfaq @ Rizwan is aged about 31 years having a family comprising of one younger brother, wife and one daughter. His parents have already expired. He is 9th class pass and is a Salesman in Herbal as a helper in a Medical Store. He is a first time offender and has already remained in judicial custody for about eleven months and twenty days.
Ld. counsels appearing on behalf of the convicts have vehemently argued that all the convicts are young boys and the convicts Jai Mohan, Rahil and Ashfaq @ Rizwan are first time offenders. It is submitted that the convict Imran Khan though involved in two other cases but he has been acquitted in the said St. Vs. Jai Mohan Etc., FIR No. 575/09, PS Jahangir Puri Page No. 42 cases. They request that a lenient view be taken against him. Ld. Addl. PP for the State on the other hand had prayed for a strict punishment against the convicts keeping in view the allegations involved.
I have considered the rival contentions. The maximum punishment prescribed for the offence under Section 186 Indian Penal Code is imprisonment for a period of three months. The convicts Jai Mohan, Imran Khan, Rahil and Ashfaq @ Rizwan, as already observe, have already undergone the maximum period of imprisonment prescribed for the offence under Section 186 Indian Penal Code. Therefore, under these circumstances, I hereby sentence the convict Jai Mohan to Rigorous Imprisonment for a period of Three months (already undergone) for the offence under Section 186 Indian Penal Code.
The convict Imran Khan is sentenced to Rigorous Imprisonment for a period of Three months (already undergone) for the offence under Section 186 Indian Penal Code The convict Rahil is also sentenced to Rigorous Imprisonment for a period of Three months (already undergone) for the offence under Section 186 Indian Penal Code The convict Ashfaq @ Rizwan is sentenced to Rigorous Imprisonment for a period of Three months (already undergone) for the offence under Section 186 Indian Penal Code Benefit of Section 428 Code of Criminal Procedure shall be given to all the convict for the period already St. Vs. Jai Mohan Etc., FIR No. 575/09, PS Jahangir Puri Page No. 43 undergone by them during the trial, as per rules. The convicts Imran Khan and Ashfaq @ Rizwan having already undergone the maximum period of sentence in the present case, they are directed to be released forthwith if not required in any other case.
The convicts are informed that they have a right to prefer an appeal against this judgment. They have been apprised that in case they cannot afford to engage an advocate, they can approach the Legal Aid Cell, functioning in Tihar Jail or write to the Secretary, Delhi High Court Legal Services Committee, 34-37, Lawyers Chamber Block, High Court of Delhi, New Delhi.
Copy of the judgment and order on sentence be given to the convicts free of costs and another be attached with their jail warrants.
File be consigned to Record Room.
Announced in the open court (Dr. KAMINI LAU)
Dated: 28.5.2011 ASJ (NW)-II: ROHINI
St. Vs. Jai Mohan Etc., FIR No. 575/09, PS Jahangir Puri Page No. 44