Delhi District Court
State vs . Shahid on 13 December, 2011
-1-
IN THE COURT OF SH. GURDEEP SINGH
ADDITIONAL SESSION JUDGE-04, NORTH-EAST DISTRICT :
KARKARDOOMA COURTS : DELHI
FIR No. : 367/2008
PS : Khajuri Khas, Delhi
U/s : 395/397/34 IPC
& 25 & 27 of Arms Act
Unique Case ID : 02402R0097452009
In the matter of
State
Versus
1. Shahid S/o Raseed
R/o: Vijay Vihar near Chaman Vihar
Loni, Ghaziabad, U.P.
2. Mohd. @ Kanchi, S/o Mohd. Iliyas
R/o: E-222, Gali No. 8, 25 futa Road
Chand Bagh, Delhi-94.
3. Mohd. Ali @ Babbu, S/o Nizamuddin Malik
R/o 376/6, New Mustafabad, Delhi.
4. Mohd. Furkan S/o Nabab Ali
R/o D-62, Gali No. 1, Madira Mazjid Chowk
Chand Bagh, Delhi.
5. Kamran @ Chotu, S/o Nafis Haider
R/o A-177, Guru Nanak Nagar, Old Mustafabad, Delhi.
...ACCUSED
Session Case No. : 80/09
Date of Institution : 27.03.2009
Date of reserving judgment/order : 08.12.2011
Date of pronouncement : 08.12.2011
FIR No. : 367/08 Page 1 of 53
-2-
J U D G M E N T
1. Accused Shahid, Mohd. Imran @ Kanchi, Mohd. Ali @ Babbu, Mohd. Furkan and Kamran @ Chhotu were sent up by police of PS: Khajuri Khas, Delhi to stand trial for offence punishable under Section 395/397/34 IPC and 27 of Arms Act.
2. The prosecution case in brief is that on 27.12.2008, on the receipt of DD No. 33-A, ASI Rajinder alongwith Ct. Brij Pal reached at the spot at C-186, Gali No. 15, Khajuri Khas, Delhi, where complainant Kartar Singh met him. The complainant Kartar Singh got his statement recorded, wherein, he stated that he is living with his family and his house is presently under-construction and their family members are living in two rooms in the same house. On the intervening night of 26/27-12-2008, they were sleeping in their rooms but rooms were not having doors. At about 2.30 AM, four boys come in his room. Two of them kept country made pistols on his temple and told him that in case, he moves, he will be shot at and demanded the key of his almirah. They took out Rs. 52,000/- and two gold chains 20 grams each. Suddenly, he raised alarm 'chor chor' and on this, his sons Joginder and Narender got up and tried to apprehend them. In return, they (accused persons) started firing at them. One of the bullet hit hand of his son Joginder who had been taken to the hospital by PCR Van. One of them was held by them and three others had fled away after firing at them. The FIR No. : 367/08 Page 2 of 53 -3- Mohalla people got up on hearing the sound of firing and on interrogation, the name of the boy who was apprehended by them, came to know as Shahid and one country-made pistol was also recovered from him. Inside the house and near the house, four empty cartridges were also found and Shahid disclosed that his friend Kamran @ Chotu who lives in Mustafabad had called him and his other accomplices to commit the present offence. The- above said boys entered into his house, looted their articles and had fired upon them and therefore, legal action be taken against them. Thereafter, IO made his endorsement on the above statement of the complainant Kartar Singh, seized the country- made pistol and other cartridges found at the spot. Thereafter, IO went to GTB Hospital and obtained the MLC of injured Joginder. On the basis of the same, FIR U/s 394/397/34 IPC and 27/54/59 of Arms act was registered.
3. Subsequently accused Shahid was formally arrested in this case.
He disclosed the name of his other accomplices as Kamran @ Chotu, Mohd. Furkan, Imran and Mohd. Ali and pointed out the house of accused Kamran at H.No. 177, Gali No. 5-B, Gurunanak Nagar, Mustafabad, Delhi, where they had gathered in the night of 27.12.2008 and made the plan for dacoity. Thereafter, further investigation of this case was entrusted to Inspector Rakesh Ahuja who conducted the search of above-said house of accused Kamran @ Chotu but nothing was found from there. However, Rupees 3000/- were found in the almirah of the said house which FIR No. : 367/08 Page 3 of 53 -4- was seized by the IO. Thereafter, on 30.12.2008, accused Mohd. Imran @ Kanchi alongwith button-actuated knife, accused Mohd. Ali alongwith one country-made pistol having one live cartridge and accused Furkan alongwith country made pistol having live cartridge were apprehended and arrested. At the instance of accused Mohd. Imran @ Kanchi Rs. 1300/-, at the instance of accused Furkan Rs. 850/- and at the instance of accused Mohd. Ali, Rs.1700/- were recovered. Thereafter, offence U/s 395 IPC was added. Accused persons namely Mohd. Imran, Mohd. Ali and Mohd. Furkan refused to join the judicial TIP. Subsequently, on 07.02.2009, accused Kamran @ Chotu surrendered in the court and he was formally arrested. He also refused to join the judicial TIP. After the completion of the investigation, all the above-named accused persons, were charge-sheeted for offences punishable U/s 395/397/34 IPC and 25 & 27 of Arms Act.
4. Ld. Metropolitan Magistrate after supplying the necessary copies to the accused persons, committed the case to the court of sessions vide order dated 09.04.2009.
5. Vide order dated 23.04.2009, after finding prima-facie offence, accused persons namely Shahid, Mohd. Imran, Mohd. Ali @ Babbu and Mohd. Furkan were charged for the offences punishable under Sections 395/34 IPC and 397/34 IPC. Accused Mohd. Ali @ Babu was also charged for offence punishable U/s 25 & 27 of Arms Act. Accused Furkan was also charged for offence punishable U/s 25 & FIR No. : 367/08 Page 4 of 53 -5- 27 of Arms Act. Accused Shahid was also charged for offence punishable U/s 25 & 27 of Arms Act. Accused Imran was also charged for offence punishable U/s 25 of Arms Act. Charges for the said offence were framed against accused persons, to which they pleaded not guilty and claimed trial.
6. The prosecution in support of their case examined as many as 18 witnesses. (Two witnesses i.e S.I U. Balashankaram and Sh. Raj Kumar @ Raju were given the same number as PW-3. The number of Sh. Raj Kumar @ Raju will be read as PW-3A).
7. The prosecution examined following material witnesses :
(i) PW-1 Sh. Kartar Singh is the complainant of this case.
He proved his statement made to the police vide Ex.PW1/A and is the witness of seizure of one torch lying at the spot which is Ex.PW1/Article-1. He also identified a country made pistol which is Ex.PW1/Article-2 recovered from accused Shahid, three live cartridges which are Ex.PW1/Article-3 collectively and two empty cases of cartridges which were found lying in the gallery in his house which are Ex.PW1/Article-4. He also identified a live cartridge and three empty cases of cartridge which were found lying in the street outside his house which are Ex.PW1/Article-5 collectively. He also proved the sketch memo of country-made pistol recovered from the FIR No. : 367/08 Page 5 of 53 -6- possession of accused Shahid and cartridges recovered from the katta and from the possession of accused Shahid and from the gallery as Ex.PW1/B, sketch of the cartridge recovered from the streets as Ex.PW1/C, seizure memo of the same as Ex.PW1/D and Ex.PW1/E respectively. He also proved the arrest memo of accused Shahid as Ex.PW1/F, and his personal search memo as Ex.PW1/G.
(ii) PW-2 Sh. Narender Kumar is the son of the complainant and material witness of this case. He correctly identified accused Shahid in the court. However, he could not identify katta and cartridges recovered from Shahid and cartridges found lying at the spot and in reply to the leading question put by Ld. Addl. P.P for the State, he stated that one cartridge was found lying in their house. He cannot say about the remaining three cartridges as he has gone alongwith the police for the purpose of investigation at the police station.
(iii) PW-3A Sh. Raj Kumar @ Raju is the neighborer of the complainant. However, he partly turned hostile towards the prosecution case regarding the apprehension of accused Shahid.
(iv) PW-4 Sh. Joginder Singh, is the son of the complainant, injured and material witness of this case. He, however, FIR No. : 367/08 Page 6 of 53 -7- failed to identify accused Shahid and turned hostile on this aspect. He also failed to identify the other accused persons.
(v) PW-7 Sh. Roshan Kumar is the neighborer of complainant Kartar Singh. He identified accused Shahid as the person who was apprehended at the spot.
8. The prosecution also examined following formal witnesses :
(i) PW-3 S.I U. Balashankaram was the Incharge Mobile Crime Team. He was called by the IO at the spot and on this, he alongwith photographer Ct. Neeraj reached at the spot.
(ii) PW-5 SI Yashpal was the duty officer who on the receipt of rukka, registered the FIR and proved the computerized copy of the same as Ex.PW5/A. He also proved his endorsement on rukka which is Ex.PW5/B.
(iii) PW-6 ASI Ikramuddin was Incharge on PCR Van, who on the receipt of call regarding robbery and firing, reached at the spot. He took injured Joginder alongwith his brother Narender to the GTB hospital.
(iv) PW-8 Dr. Ravinder Singh who proved the photocopy of MLC of injured Joginder Singh as Ex.PW8/A which was prepared by Dr. P.K Gupta who has left the services of the hospital.FIR No. : 367/08 Page 7 of 53 -8-
(v) PW-9 Ct. Neeraj was the photographer who on the instructions of the IO, took seven photographs of the spot from different angles and proved the negatives of the photographs as Ex.PW9/P-1 to PW9/P7 and proved the photographs as Ex.PW9/P8 to Ex.PW9/P14.
(vi) PW-15 Inspector Pankaj Sharma was the SHO at PS Khajuri Khas on 26.02.2009 who had moved an application to collect the copy of TIP proceedings of Kamran and received the same and placed the same on record. He proved his application as Ex.PW15/A.
(vii) PW-16 Sh. Sanjay Khanagwal, Ld. Metropolitan Magistrate who conducted the TIP of accused Mohd. Ali, Mohd. Furkan and Imran who refused to join the TIP proceedings. He proved the TIP proceeding of accused Mohd. Ali @ Baboo as Ex.PW16/A and his certificate of correctness annexed on the same as Ex.PW16/B. He also proved the TIP proceeding of accused Imran @ Kanchi as Ex.PW16/C and his certificate of correctness as Ex.PW16/D. He also proved the TIP proceeding of accused Furkan as Ex.PW16/E and his certificate of correctness as Ex.PW16/F. He also proved the applications for conducting the TIP proceedings of above-
said accused persons as Ex.PW16/G and he also supplied the copy of TIP proceedings to the IO vide separate applications Ex.PW16/H, Ex.PW16/I and FIR No. : 367/08 Page 8 of 53 -9- Ex.PW16/J.
9. The prosecution also examined following witnesses of arrest and investigation :
(i) PW-10 Ct. Mahipal who on the intervening night of 26/27-12-2008, reached at the spot alongwith Ct.
Surender and found that one accused namely Shahid was apprehended by public persons. He alongwith Ct. Surender took accused Shahid to the GTB Hospital for medical examination. He is the witness of recording of disclosure statement of accused Shahid and proved his disclosure statement as Ex.PW10/A-1 and also proved the pointing out memo prepared by IO as Ex.PW10/A-2. He is also the witness of arrest of accused persons namely Mohd. Ali @ Babu, Mohd. Furkan and Imran and recovery effected from them. He proved their arrest memos as Ex.PW10/A, Ex.PW10/B and Ex.PW10/C respectively and their personal search memos as Ex.PW10/D, Ex.PW10/E and Ex.PW10/F respectively. He also proved the seizure memos of weapons recovered from the possession of the said accused persons as Ex.PW10/G, Ex.PW10/H and Ex.PW10/I respectively and their sketch memos as Ex.PW10/J, Ex.PW10/K and Ex.PW10/L respectively. He identified the knife recovered from the possession of accused Imran @ Kanchi which is FIR No. : 367/08 Page 9 of 53 -10- Ex.PW10/Article-1. He also identified the country made pistol and empty case of cartridge recovered from accused Furkan which are Ex.PW10/Article-2 and Ex.PW10/Article-3. He also proved the county-made pistol and empty case of cartridge alongwith projectile recovered from the possession of accused Mohd. Ali which are Ex.PW10/Article-4 and Ex.PW10/Article-5 (collectively) respectively.
(ii) PW-11 H.C Pradeep Kumar is also the witness of arrest of accused Mohd. Furkan, Mohd. Ali and Imran. He is also the witness of recovery effected from them, recording of their disclosure statement, seizure of katta, cartridges and knife recovered from them. He also proved the seizure memos of currency notes recovered from the possession of accused Mohd. Furkan, Mohd. Ali and Imran vide Ex.PW11/A, Ex.PW11/B and Ex.PW11/C respectively. He identified the currency notes of Rs.850/- recovered from possession of accused Furkan which are Ex.PW11/Article-1 (collectively). He also identified the currency notes of Rs. 1300/- recovered from accused Imran which are Ex.PW11/Article-2 (collectively). He also identified the currency notes of Rs. 1700/- recovered from accused Mohd. Ali which are Ex.PW11/Article-3 (collectively).
(iii) PW-12 H.C Brij Pal who alongwith Inspector Rakesh FIR No. : 367/08 Page 10 of 53 -11- Ahuja on the receipt of DD No.33-A, reached at the spot. He got the FIR registered from PS Khajuri Khas and thereafter, handed over the copy of FIR and rukka to ASI Rajender Singh. He in addition to other memos proved the seizure memo of torch as Ex.PW12/A. He was cross- examined by Ld. Addl. P.P as he was resiling from his earlier statement. However, on being cross-examined by Ld. Prosecutor, he stated regarding the recovery of empty cartridges from and near the spot. He also identified accused Shahid and weapons recovered from him.
(iv) PW-13 H. C Ravinder Kumar is the witness of arrest of accused Mohd. Furkan, Mohd. Ali and Imran and recovery effected from them. He in addition to the other memos proved the disclosure statements of accused Mohd. Furkan, Imran and Mohd. Ali as Ex.PW13/A, Ex.PW13/B and Ex.PW13/C respectively. He also proved the pointing out memos prepared at the instance of above-three accused persons as Ex.PW13/D, Ex.PW13/E and Ex.PW13/F respectively.
(v) PW-14 S.I Rajender Singh is the initial IO who on the receipt of DD No. 33-A, reached at the spot alongwith Ct. Brijpal. He recorded the statement of the complainant which is Ex.PW1/A and made his endorsement on the same vide Ex.PW14/A. He in addition to other memos proved seizure memo of Rs. 3000/- recovered from the FIR No. : 367/08 Page 11 of 53 -12- almirah lying in the room at the house of accused Kamran vide Ex.PW14/B and also proved the site plan of place of occurrence as Ex.PW14/C.
(vi) PW-17 Inspector Rakesh Ahuja is the subsequent IO who in addition to other memos proved the arrest memo of accused Kamran as Ex.PW17/A and FSL report as Ex.PW17/B.
10. After the conclusion of the prosecution evidence, statement of accused persons were recorded, wherein, they denied the prosecution evidence and claimed innocence.
11. Accused Shahid in his statement U/s 313 Cr.P.C has stated that he is innocent. On the date of incident, he had come to visit the adjoining house of the place of occurrence where, one muslim lady was living who had married with Hindu person. She was known to him. When, he was coming out from her house, he was mistakenly apprehended by the complainant. He had no connection with the present case. Nothing has been recovered from his possession and case property has been planted upon him. He did not make any disclosure statement. Police obtained his signatures on blank papers forcibly. He has been falsely implicated in this case. He choses not to lead the defence evidence.
12. Accused Mohd. Furkan, Mohd. Imran and Mohd. Ali have similarly stated in their statements U/s 313 Cr.P.C that they were called for FIR No. : 367/08 Page 12 of 53 -13- interrogation in the PS Khajuri Khas by police officials, where, they have been falsely arrested in this case. Nothing has been recovered from their possession. Case property i.e weapons and currency notes have been planted upon them in order to falsely implicate them in this case. They did not make any disclosure statement. Police officials obtained their signatures on blank papers. They refused to join the TIP proceedings as their photographs were already shown to the witnesses by the police. They have been falsely implicated in this case and they are innocent.
13. Accused Kamran has stated in his statement U/s 313 Cr.P.C that he has been falsely implicated in this case. He surrendered in the court as he came to know that his name has been falsely involved in some false case. He refused to join the TIP proceedings as his photographs were already shown to the witnesses by the police. The house from where police has recovered Rs. 3000/-, which allegedly shown as his house, does not belongs to him nor he has any connection with the said house in any manner. He has been falsely implicated in this case and he is innocent.
14. I have heard Sh. Virender Singh, Ld. Addl.P.P for the State, Sh. Abdul Sattar Ld. Legal Aid Counsel for accused Shahid, Sh. Devender Singh Advocate for accused Furkan, Mohd. Ali and Imran and Sh. S.Hassan Zaidi Advocate for accused Kamran. I have also gone through the record.
FIR No. : 367/08 Page 13 of 53 -14-15. PW-1 Sh. Kartar Singh testified that on 26.12.2008, he was present at his house and the house was partly under construction from the front side. He was living in the said house on the rear side where four rooms are constructed. At about 2.30 AM, he was sleeping in the room and his son Joginder was sleeping in the other room and his son Narender and his wife were sleeping in another room. Four persons entered in his room. They woke him up and two of them put country-made pistol on his temple and stated to him that they are many persons and surrounded his house and asked him to hand over the key of the same. He handed over the key. They opened the safe from the key and took search of the safe and took search of the entire room. A sum of Rs. 52,000/- and two gold chains and two gold rings were taken by them from the safe. After they left his room, he called his sons by their name and raised alarms. On this, while running away, they fired on him but in the meanwhile, his son had come but the bullet hit his son Joginder. While, running away one of them, fell down on account of the shuttering in the portion of the house, which was under
construction and thereafter, they apprehended him. The accomplice of the person who was apprehended by them had again fired on them in order to rescue their accomplice. They kept on firing for about 10-15 minutes and they were having stones in their house and they threw stones on them for their defence. In the meantime, mohalla people woke up on hearing his sound. The boy who was apprehended whose name was revealed as Shahid and FIR No. : 367/08 Page 14 of 53 -15- who was resident of U.P and he was having one country-made pistol and four cartridges. He (Shahid) also disclosed the names of his accomplices but he does not remember their names. He correctly identified accused Shahid. However, he stated that he cannot identify the other accomplices as it was night time and they were perplexed. He stated that thereafter, police was informed by mohalla people. Police arrived at the spot and recorded his statement Ex.PW1/A. He further stated that accused persons, who had managed to escape, had taken a silver coin which was gifted to him by his office on the occasion of Diwali. He stated that on taking the personal search of accused Shahid, a mobile phone was recovered from his possession. He stated that he cannot identify the remaining accused persons.
16. PW-2 Sh. Narender Kumar corroborated PW-1 Sh. Kartar Singh regarding the incident. He testified that on the intervening night of 26/27.12.2008, he alongwith his sister and mother were sleeping in a room in under-construction house. There was no door in the room and house. In separate room, his father was sleeping and in third room his brother namely Joginder was sleeping. There were four rooms in the house. He stated that at about 12:30 a.m. night, he heard some noise like khatkhat, on this, his sister woke up and told him to see about the noise. He had also woke up and in the meantime, five persons entered in the room and one of them pointed country made pistol towards him. One of them had put the katta on the temple of his mother. They asked his mother to hand-
FIR No. : 367/08 Page 15 of 53 -16-over the key and threated to kill him otherwise. His mother handed over the key of the shelves to them. They had removed Rs. 52,000/-, two gold rings, one gold chain and one silver coin which was gifted to him by his company i.e. Blue Dart from the shelves which was kept in his room. He further stated that one accused remained in his room and other remaining went in the room of his father. Within five minutes, he heard the noise of his father and on hearing the same, the accused who had pointed the katta on him ran towards outside. He also came out from the room. His brother Joginder also came out from the room and he hit base ball bat on one of them and he apprehended that boy. His brother and Yogender followed the other accused persons who were running and while running they had also fired upon them. His brother sustained bullet injury on right hand little finger. He called the police over 100 number. Police officials came. They came to know the name of the accused who was apprehended as Shahid. One katta was lying near the place where his brother had hit the bat on Shahid, which was fallen from the possession of Shahid. One live cartridge was recovered from inside the katta. One more live cartridge was recovered from the gallery. All the recoveries were effected in presence of police officials. Police officials had seized the same. One mobile phone was also recovered from the personal search of the accused. One broken torch was also recovered from the spot. There were total five accused, who entered in his room. He stated that his brother was taken to GTB FIR No. : 367/08 Page 16 of 53 -17- Hospital by the police. Police officials recorded statement of his father and FIR was lodged. Accused Shahid was arrested and he was taken to the police station. The neighbourers had also gathered there on the spot. He stated that he can identify accused Shahid only, if shown to him. He cannot identify other accused persons as they have covered their faces with handkerchief. He has correctly identified accused Shahid in the court. However, he cannot identify the katta and cartridges recovered from Shahid and cartridges found lying at the spot. However, in the answer to the leading question put by Ld. Addl. P.P for the State, he stated that one cartridge was found lying in their house. He cannot say about the remaining three cartridges as he has gone alongwith the police for the purpose of investigation at the police station.
17. PW-4 Sh. Joginder Singh testified that on the intervening night of 26/27.12.2008, he was sleeping in his under-construction house in a room front left side. At about 2:30 a.m. night, he heard noise of his father Sh. Kartar Singh like 'chor-chor'. He woke up. He picked the base ball bat which was lying near sofa on which he was sleeping. He came out from the room in a gallery. He saw there were five-six persons present in the gallery. His father was also present in the gallery and he was raising the alarm. He also heard the noise of firing bullet. He hit one of them on his head with the base ball bat. On this, all started running outside the house. There was shuttering on house on account of construction work. The person who was hit with base ball bat while running collided with FIR No. : 367/08 Page 17 of 53 -18- the balli of shuttering and fell down. In the meantime, his younger brother also came and later came to know that the person who was fallen was apprehended by his brother. He chased the others. They went out from the main gate and they went inside the street. They went for about 100 meters away from their house and again returned to some distance towards their house and thereafter started firing. Later on he came to know that since their accomplice they returned to rescue him. He alongwith his father pelted small stones in return of the firing. While he was picking the stone and bent down holding the gate, one bullet hit litter finger of his left hand. The court observed that the little finger of left hand of the witness has cut below the nail and has been shortened. He further stated that in the meantime, the neighbourers collected on hearing the noise. One neighbourer Raj Kumar threw flowers pot on those persons. Thereafter they ran away from there. They had covered their faces with clothes. Some-one called the police over 100 number after 15/20 minutes. On returned inside the house, he saw my younger brother had apprehended one of the assailants, whose name later on came to be known as Shahid. He can identify him. However, he pointed towards Mohd. Ali as the person who was apprehended. He stated that in the meantime, PCR came and since he was in injured condition PCR police taken him to the GTB Hospital. He was cross-examined by the Ld. Addl. P.P for the State. He, on seeing accused Shahid has stated that he is not sure about Shahid whether he is same person or not who was apprehended at FIR No. : 367/08 Page 18 of 53 -19- the spot and voluntarily sated that at the time of incident, he was well built and healthy and he had seen him for a very short period.
18. PW-3A Sh. Raj Kumar @ Raju, neighborer of the complainant testified that on the intervening night of 26/27.12.2008, at about 2:15 night, he was sleeping on the roof of his house. His children woke him up and told him that noise are coming from the street. He came in the street and found that mohalla people gathered there. He heard noise i.e. 'bachao bachao' of Kartar Singh coming from his house. He went inside the house of Kartar Singh and found that one boy was caught by the public persons neighbourer. He also came to know from them that the boy who was caught came alongwith others to commit dacoity. He also came to know from the wife of Kartar Singh that the accused persons have robbed some cash perhaps Rs.20000/-25,000/- and one gold chain jewellery. Police officials came there. He stated that he does not know the name of the boy who was apprehended and he could not see his face as he was surrounded by the public person. He was declared hostile by Ld. Addl P.P for the State. Despite, being cross- examined by Ld. Addl. PP, he did support the prosecution case.
19. PW-7 Sh. Roshan Kumar testified that in the intervening night of 26/27/11/08, at about 2:00/2:30 am (night), when he was sleeping in his house, he heard some noise of crackers and immediately heard the noise of "chor chor", then he thought that someone is firing. On this, he went on the roof of his house and saw that all the FIR No. : 367/08 Page 19 of 53 -20- neighbourers had come on their balconies and light of their houses were on and he saw in the street that 3-4 persons were running and firing. Thereafter, he get down from the roof and came in the street and other neighbours had also came in the street and they went in the house of Kartar Singh where he saw that one of the assailants was held by the family members of Kartar Singh and Mohalla people. The house of the Kartar Singh was under
construction and shuttering was done and there was darkness on that account. However, the light was sufficient to see the faces of each other as the light was filtering from the nearby houses. They also noticed that one torch and katta like arm and 5-6 cartridges were lying in the compound of the house. They came to know from Sh.Kartar Singh that the other assailants had looted Rs. 52,000/- and two gold chains. They also came to know the name from the person who was apprehended as Shahid. He himself told his name as Shahid. Son of Kartar Singh namely Joginder had bleeding on his left hand on account of gun shot injury. Someone called the police. PCR police reached there. Local Police had also reached there. The police official also recovered empty cases of cartridges from the street. Accused Shahid, torch, katta and cartridges were also handed over to the police also. The PCR police took injured Joginder to the hospital. Some Mohalla people had also accompanied Joginder to the hospital. The assailants who were running in the street while firing had covered their faces with the cloth. He had also went to the PS along with the other Mohalla FIR No. : 367/08 Page 20 of 53 -21- people and Kartar Singh. Police officials had also inquired him about the incident and recorded his statement. He stated that he can identify the accused Shahid who was apprehended at the spot and he correctly identified accused Shahid in the court. The court recorded the demeanor of the witness, he was giving the evidence confidently and in natural manner.
20. PW-14 SI Rajender Singh testified that in the intervening night of 26/27.12.2008, on the receipt of DD NO. 33-A, he alongwith Ct. Brijpal reached at the spot i.e. at C-186, Gali No.15, Khajuri Khas, Delhi where complainant Kartar Singh owner of the said house and other public persons met him. Inspector Rakesh Ahuja Addl. SHO of Khajuri Khas alongwith staff also met him. Sh. Kartar Singh produced accused Sahid alongwith one desi katta (country made pistol) alongwith four empty cartridges and stated that katta was recovered from the possession of accused Shahid. He opened the katta and found one live cartridge therein. Sh. Kartar Singh gave his statement and he recorded the same. He also came to know that Joginder Singh s/o Kartar Singh had sustained gun shot injury on his hand and he had already been taken to GTB Hospital by PCR van. On this, he also went to GTB Hospital and collected the MLC of injured Joginder Singh. Thereafter he returned back to the spot. He prepared the sketch of the desi katta, live cartridge and four empty cases of cartridges, and seized the same. Thereafter he endorsed the statement of Sh. Kartar Singh vide his endorsement Ex.PW-14/A and got the FIR registered through Ct. Brijpal. He FIR No. : 367/08 Page 21 of 53 -22- searched the place of occurrence and found one live cartridge and three empty cases of cartridges lying near the place of occurrence near the street at different places. He seized the same. He stated that in the meantime, injured Sh. Joginder Singh and Sh. Narender Singh, both sons of complainant Kartar Singh came at the spot. Sh. Narender Singh produced him one torch and stated that said torch was in the hand of accused Shahid. Hence he seized the same. He interrogated the accused Shahid, arrested him and recorded his disclosure statement.
21. PW-12 HC Brij Pal testified that in the intervening night of 26/27.12.2008, on the receipt of DD No. 33-A, he alongwith Inspector Rakesh Ahuja reached at the spot at about 3.00 AM where Sh. Kartar Singh, owner of the under-construction house met them. Main gate of the house was also not installed. They produced one person namely Shahid and stated that he is the person who has committed the offence of robbery alongwith other person who had ran away from there. PW-12 corroborated PW-14 regarding production of one desi katta and four empty cases of cartridges alongwith torch which were in the hand of Shahid, recording of statement of the complainant, registration of FIR, seizure of one desi katta containing live cartridge and four empty cases of cartridge & torch and also corroborated regarding arrest of accused Shahid & recording of his disclosure statement. After being cross-examined by Ld. Addl. P.P for the State, he admitted that three empty cases of cartridges and one live cartridge were FIR No. : 367/08 Page 22 of 53 -23- also found lying near the house of Kartar Singh in the street which were seized by the IO vide seizure memo Ex.PW1/E and its sketch Ex.PW1/C was prepared.
22. PW-10 Ct. Mahipal similarly testified on the intervening night of 26/27.12.2008, he came to know that a robbery had committed at Gali No. 15, B-Block, at the house of Kartar Singh. He went to the house of Kartar Singh alongwith Ct. Surender where they found that one accused namely Shahid was apprehended by the public persons. He stated that one katta was also recovered from the possession of accused Shahid which was seized by the IO. He took accused Shahid alongwith Ct. Surender to GTB Hospital for his medical examination. He also stated that accused Shahid confessed the guilt and accused Shahid was arrested.
23. PW-17 IO/Inspector Rakesh Ahuja testified that on 27.12.2008, on receipt of information vide DD No. 33-A in the police station regarding quarrel and firing, he visited the spot i.e H.No. C-186, Gali No. 15, Khajuri Khas, Delhi where IO/ASI Rajender alongwith police staff met him. The complainant Sh. Kartar Singh had handed over accused Shahid alongwith recovered katta, live cartridge and some empty cartridges. He also came to know that son of complainant namely Joginder Singh had sustained gun shot wound on his hand and had been removed to GTB Hospital by PCR Van. ASI Rajender had seized the said katta and cartridges. He stated that ASI Rajender went to GTB Hospital and collected the MLC of FIR No. : 367/08 Page 23 of 53 -24- injured Joginder Singh. He got the FIR registered on the statement of Sh. Kartar Singh, the complainant. Accused Shahid S/o Rashid was arrested and was produced before the concerned court and his one day PC remand was obtained. Accused Shahid also made his disclosure statement.
24. PW-3 S.I. U Balashankaram Crime Team Incharge who inspected the spot, PW-9 Ct. Neeraj who took the photographs of the spot and PW-8 Dr. Ravinder Singh who proved the MLC of injured Joginder prepared by Dr. P.K Gupta, have also corroborated other witnesses regarding the occurrence.
25. Ld. Defence Counsel has submitted that there are material inconsistencies in the testimonies of the witnesses and therefore, the occurrence and the apprehension of accused Shahid at the spot is not proved.
26. PW-1 Sh. Kartar Singh in his cross-examination was confronted with respect to the portion of his statement which he had improved where he stated that accused persons had told them that they had surrounded them. Accused persons had taken search of entire room. They had robbed two gold rings and accused persons had fired on him and that while running away, one of them fell down on account of shuttering in the portion of the house which was under
construction. He was also confronted with portion of his statement where he had stated that the accomplices of the accused again FIR No. : 367/08 Page 24 of 53 -25- fired on them in order to rescue their accomplice and they (accused persons) kept on firing for about 10 to 15 minutes and they (witness) were having stones in their house and they threw stones on them for their defence. He was also confronted with the portion of his statement where he stated that accused Shahid had disclosed the name of his accomplices. He was also confronted with the portion of his statement where he had stated that there was four rooms constructed on the rear side of the house and his son namely Joginder was sleeping in a separate room and his wife and his son Narender were sleeping in separate room. He was also confronted with the portion of his statement where he had stated that accused Shahid was found in possession of one country-made pistol and four cartridges and with respect to a torch was found lying at the spot without glass.
27. Apart from the improvements made by PW-1 Kartar Singh, to which he was confronted, nothing has come in his cross- examination which can discredit him. He in his cross-examination on behalf of accused Furkan, Imran and Mohd. Ali has stated that he does not know as to who called the PCR and voluntarily stated that someone from mohalla called the PCR. He signed the documents at police station on the same day. Police did not record the statement of Raj Kumar @ Raju and Roshan in his presence. In his cross-examination on behalf of other accused Kamran, he stated that Raj Kumar @ Raju and Roshan were made witnesses in this case by the police. He stated that he signed the recovery FIR No. : 367/08 Page 25 of 53 -26- memos of the weapon of offence. Police recovered Rs. 6800/- from the accused persons but he cannot tell from whom.
28. If the improvements are closely looked at, they are all insignificant as the improvement with respect to the fact that accused persons had told that they had surrounded them and they had taken search of the room is only explanatory in nature. The version that the accused persons had fired at him has been stated by him that remaining boys ran away while firing and only improvement is it was fired at him. Improvement with respect to the fact that one of them had fallen on account of shuttering and was apprehending was also explanatory in nature as he has already stated in his statement that one of them was apprehended. The improvement with respect to the firing on them and in return, they had threw stones, is also not inconsistent with his statement given to the police. It is also explanatory in nature. Further the improvement with respect to the fact that accused Shahid had disclosed the name of his accomplice that in fact, he had given the name of his accomplice as Kamran @ Chotu in his statement, therefore, it cannot be termed as improvement in any manner. The other improvements put to this witness are with respect to the manner in which they were sleeping in the house, which is also explanatory and not inconsistent with his statement. However with respect the improvement made by PW-1 Sh. Kartar Singh that accused Shahid was found in possession of one country made pistol and four cartridges, it is mentioned in his statement recorded by the police FIR No. : 367/08 Page 26 of 53 -27- that accused Shahid had one country made pistol. However, inside his house and nearby his house, four cartridges were found. Only there is some improvement with respect to the cartridges. Therefore, apart from very minor improvement, which can be safely ignored, the witness has stood the test of cross-examination and has proved that five persons entered into his house and had committed dacoity and one of them i.e accused Shahid was apprehended by them with katta.
29. As regards PW-2 Sh. Narender Kumar. PW-2 in his cross-
examination on behalf of accused Shahid, was confronted with the portion of his statement where he stated that his sister woke him up and told him to see about the noise. He was also confronted with the portion of his statement where he had stated that five persons entered in the room and one of them pointed country- made pistol towards him and one of them had put the katta on the temple of his mother and asked his mother to hand-over the key and threatened to kill him, otherwise. He was also confronted with the portion of his statement where he had stated that his mother handed over the keys of the shelves to them and they had removed Rs. 52,000/-, two gold rings, one gold chain and one silver coin which was gifted to him by his company i.e Blue Dart, from the shelf which was kept in his room. However, wherein, it was recorded that accused persons looted Rs.52,000/-, two gold chains 20 gram each, one silver coin which was gifted to him by his company . Therefore, it cannot be termed as any improvement as it FIR No. : 367/08 Page 27 of 53 -28- is only explained, the manner, in which the keys were handed-over to accused persons. PW-2 was also confronted with his statement where he stated that one of accused remained in his room and other went to the room of his father and that within five minutes, he heard the noise of his father and on hearing the same, the accused who had pointed the katta on him ran towards outside. He was also confronted with the portion of his statement where he stated that he also came out from the room and his brother Joginder also came out from the room and he hit base ball bat on one of them and he apprehended that boy and his brother Yogender followed the other persons who were running and while running they had also fired upon them. He was also confronted with the portion of this statement where he had stated that his brother sustained bullet injury on his little finger of right hand, wherein, however, it is mentioned that his brother sustained bullet injuries on his left hand. It is also cannot be termed as any improvement as infact his brother had sustained bullet injury. He was also confronted with the portion of his statement where he stated that one katta was lying near the place where his brother had hit the bat on Shahid which was fallen from the possession of Shahid and one live cartridge was recovered from inside the katta. He was also confronted with the portion of his statement where he stated that one more live cartridge was recovered from the gallery and all the recoveries were effected in presence of police officials and police officials seized the same. He was also confronted with the portion where he FIR No. : 367/08 Page 28 of 53 -29- stated that one mobile phone was also recovered from the personal search of accused. However, in the personal search of accused, one mobile phone was recovered. Therefore, it cannot be termed as any improvement. PW-2 was also confronted with the portion of his statement where he stated that there were five accused persons who entered in his room. However, it was mentioned that there were total five accused persons and out of them, one remained present outside. He was also confronted with the portion of his statement where he had stated that neighbourers had gathered there and mohalla people had also tried to restrain and apprehend the accused persons by throwing flowerpots while they were firing and he alongwith police officials and accused Shahid accompanied to the police.
30. The improvements pointed are not inconsistent in any manner with the statement of PW-2 Sh.Narender Kumar. He may have some improvements while explaining the whole incident. His statement U/s 161 Cr.P.C is only gist of the facts, which constitutes the offence. However, when this witness appears in the court, he gives the details of the incident and therefore, unless the improvement is totally contradictory or inconsistent with previous statement, it cannot be termed as improvement which can discredit the testimony of this witness.
31. Apart from these improvements, there is not significant cross-
examination of this witness, regarding the occurrence and FIR No. : 367/08 Page 29 of 53 -30- apprehension of accused Shahid at the spot and recovery effected from him.
32. PW-4 Sh. Joginder Singh was infact injured by the bullet hit by the accused persons. The court also made observation of the same. However, PW-4 Sh. Joginder Singh failed to identify accused Shahid in the court and instead identified accused Mohd. Ali as Shahid as the person who was apprehended. However, in the cross-examination conducted by Ld. Addl. P.P for the State, he stated that he is not sure about Shahid whether he is the same person or not who was apprehended at the spot as at the time of incident, he was well built and healthy and he had seen him for a very short period. PW-4 Sh. Joginder had suffered bullet injury, his presence at the spot is not at all doubtful and after having hit by bullet, it is not very normal to keep one's observation intact. Therefore, merely because he has not identified accused Shahid, it does not in any manner shake his credibility or show that it was not accused Shahid who was apprehended at the spot.
33. PW-4 Sh. Joginder Singh in his cross-examination was confronted with the portion of his statement, where, he stated that he picked the base ball bat which was lying near sofa, on which, he was sleeping and he came out from room in the gallery and saw that there were five/six persons present in the gallery and he heard the noise of firing bullet and he hit one of them on his head with the base ball bat and on this, all started running outside the house. He FIR No. : 367/08 Page 30 of 53 -31- was also confronted with the portion of this statement where he had stated that there was shuttering in house, on account of construction work and the person who was hit with base ball bat while running collided with the balli of shuttering and fell down and in the meantime, his younger brother also came and later came to know that the person who was fallen was apprehend by his brother and he chased the others and they went out from the main gate and they went inside the street. He was also confronted with the portion of his statement where he stated that accused after running from their house for about 100 meters away, again returned towards their house and thereafter, started firing on them and he alongwith his father pelted small stones in return of firing. He was also confronted with portion of his statement, where he had stated that his younger brother had apprehended one of the assailant whose name later on came to be known as Shahid.
34. PW-1, PW-2 and PW-4 have been confronted with the portions of their statements where they had stated that accused persons had fired at them and they in return threw stones on them. All of them, are consistent to the effect and they are also consistent that the house was under-construction and there was shutting and one of the accused fallen on account of shuttering. It is not disputed that the house of the complainant was under-construction.
35. This version was also corroborated by PW-7 Sh.Roshan Kumar.
Even, his demeanor was recorded by the court and he was found FIR No. : 367/08 Page 31 of 53 -32- to be natural witness. PW-7 Sh. Roshan kumar identified accused Shahid in the court as the person who was apprehended at the spot. This witness was also confronted with the portion of his statement where he stated that he saw in the street that three-four persons were running and firing and thereafter, he get down from the roof. However, it was recorded in his statement that he had seen 3-4 boys from the street while running and firing. It can hardly be termed as any improvement. PW-7 was also confronted with the portion of his statement, where he had stated that he saw that one of the assailant was held by the family members of Kartar Singh and Mohalla people. However, wherein, it was recorded that the Kartar Singh and his sons had held one of the assailant. Therefore, it cannot be said as an improvement. Apart from the confrontation of improvement made by this witness, there is no significant cross- examination which could discredit the testimony of this witness.
36. Ld. Defence Counsel has further submitted that there are some inconsistencies regarding the time and in the manner in which the family of the complainant was sleeping, which causes doubt about the version of the witnesses.
37. PW-1 Sh. Kartar Singh in his statement made to the police has stated that all the family members were sleeping in the two rooms constructed in the house and time of incident was about 2.30 AM when four persons entered into his room. He also stated that they had taken the keys of almirah and taken Rs. 52,000/- and two gold FIR No. : 367/08 Page 32 of 53 -33- chains. However, when he was examined in the court, he stated that there were four rooms in the house and he was sleeping in one room and his son Joginder was sleeping in another room and his son Narender and his wife were sleeping in another room. Meaning thereby, they were sleeping in three rooms. PW-1 when examined in the court has stated that a sum of Rs.52,000/- and two gold chains and two gold rings were taken by them from the safe. Whereas, PW-2 Narender states that on the intervening night of 26/27.12.2008, he alongwith his sister and mother were sleeping in a room in under-construction house and in separate room, his father was sleeping and in third room his brother namely Joginder was sleeping. There were four rooms in the house and time was 12.30 AM (night) and accused persons had asked his mother to hand over the keys of almirah and accused persons had removed Rs. 52,000/-, two gold rings, one gold chain and one silver coin.
38. There is an apparent inconsistency with respect to the time.
However, if one is sleeping in the night, it is always very difficult to assess the time. The variation of two hours in the time is not significant enough to discredit them and to disbelieve them.
39. There is however, an inconsistency with respect to from whom they had taken the key and from where they had removed the money and other articles. PW-1 Sh. Kartar Singh when examined in the court has stated that a sum of Rs.52,000/-, two gold chains and two gold rings were taken by them from the safe. On the other FIR No. : 367/08 Page 33 of 53 -34- hand, PW-2 Sh. Narender stated that accused persons had removed Rs. 52,000/-, two gold rings, one gold chain and one silver coin. It appears that while lodging the complaint, PW-1 Kartar Singh has given his statement with respect to the stolen article in the manner as if they were stolen from him. However, PW-2 Narender has categorically stated that it was removed from their room. However, there is no inherent inconsistency between the testimonies of these two witnesses that these articles were robbed by dacoits. Rather, one finds corroboration as PW Narender states that five persons had entered into his room and one remained there in his room and pointed katta at him and remaining four accused persons went to the room of his father. PW-1 Sh. Kartar Singh also claims that four persons had entered into his room. Therefore, it only shows that the accused persons had firstly entered into the room of PW-2 Narender and robbed the articles and thereafter, entered into the room of PW-1 Kartar Singh. Merely because PW-1 Kartar Singh is stating false with respect to the articles robbed from his room, however, his entire testimony cannot be rejected. His testimony is found to be trust-worthy with respect to the apprehension of accused Shahid and recovery effected from him and that dacoits had entered into his house. Therefore, the prosecution has succeeded in establishing on record the on the intervening night of 26/27.12.2008, five persons entered into the house of Kartar Singh and looted Rs. 52,000/-, two gold rings, one gold chain and one silver coin and accused Shahid was FIR No. : 367/08 Page 34 of 53 -35- apprehended at the spot alongwith country-made pistol which was live and also in the search of accused Shahid, one mobile phone was recovered and some cartridges were recovered in or near the house and other fled away.
40. Accordingly, offence punishable U/s 395 IPC is proved against accused Shahid. Accused Shahid had used the country-made pistol a deadly weapon, which he had used in commission of the offence, therefore, offence punishable U/s 397 IPC also stands proved against accused Shahid. Further, he was found in possession of country-made pistol with live cartridge which he had used in commission of offence, therefore, offence punishable U/s 25 and 27 of Arms Act also proved against accused Shahid.
41. Now coming to the defence of accused Shahid. Accused Shahid has stated that on the date of incident, he had come to visit the adjoining house of the place of occurrence where, one muslim lady was living who had married with Hindu person. She was known to him. When, he was coming out from her house, he was mistakenly apprehended by the complainant. He had no connection with the present case. Nothing has been recovered from his possession and case property has been planted upon him. He did not make any disclosure statement.
42. However, interestingly, PW-1 Sh. Kartar Singh was given the suggestion on behalf of accused Shahid regarding his defence that FIR No. : 367/08 Page 35 of 53 -36- accused Shahid did not commit any dacoity and he was crossing the road on the same date and time and came after listening the hue and cry and subsequently, he was falsely implicated in this case. PW-2 Sh. Narender was suggested that no such incident had taken place. PW-10 Ct. Mahipal was given the suggestion on behalf of accused Shahid regarding his defence that he (witness) used to go to the house of Kartar Singh to take lunch and dinner and one day prior to the incident, some hot words were exchanged in between son of Kartar Singh and accused Shahid on the issue of taking drink at the liquor shop Khajuri Khas and son of Kartar Singh had also given beatings and thereafter, IO had implicated the accused at the instance of Kartar Singh and his son. PW-12 H.C Brij Pal was suggested that accused Shahid was falsely arrested by the police from his house at Chaman Vihar, Loni Ghaziabad. PW-14 S.I Rajender Singh was suggested that accused Shahid had verbal dispute with the complainant and on account of that, Kartar Singh had got him falsely implicated in this case. PW-17 IO/Inspector Rakesh Ahuja was given the suggestion on behalf of accused Shahid regarding his defence that accused Shahid was falsely apprehended when he was returning after meeting of his girl friend and falsely implicated in this case.
43. Therefore, defence of accused Shahid is inconsistent and not substantiated. In the face of over-whelming evidence of his apprehension at the spot, the defence of accused Shahid does not stand. Accordingly, the prosecution has proved the above-
FIR No. : 367/08 Page 36 of 53 -37-mentioned offences against accused Shahid beyond reasonable doubt.
44. Now coming to the accused persons namely Mohd. Imran @ Kanchi, Mohd. Ali @ Babbu and Mohd. Furkan. These accused persons have not been identified by the witnesses and the evidence against them is recovery effected at their instance.
45. PW-11 H.C Pradeep Kumar testified that on 30.12.2008, he was present at the Police Station alongwith Inspector Rakesh Ahuja and Inspector Rakesh Ahuja received the secret information that the three criminals who are involved in the present case would gather at Gali No. 5-B, Guru Nanak Nagar, Mustafabad, Delhi. On this, he alongwith Insp. Rakesh, Ct. Mahipal and H.C Ravinder reached there in two different cars. The secret informer also met them there and he informed that the said criminals are having illegal arms in their possession. At about 4.30 PM, three persons came in the street and at the instance of the secret informer, they apprehended all the three accused persons. On interrogation, their names came to know as Mohd. Furkan, Mohd. Ali and Imran. IO conducted their formal search and from the possession of Mohd. Ali and Mohd. Furkan, desi katta (one each) loaded with live cartridges were recovered. Accused Imran was found in possession of button actuated knife. IO arrested accused persons Mohd. Furkan, Imran and Mohd. Ali and their personal search were also conducted. Accused Mohd. Furkan, Imran and Mohd. Ali also FIR No. : 367/08 Page 37 of 53 -38- made their disclosure statements and confessed the commission of crime in the present case alongwith the other co-accused persons. IO prepared the sketches of katta, cartridges and knife and seized the same through seizure memos. He further testified that accused persons also found in possession of some currency notes of robbed money. Accused Mohd. Furkan was found in possession of Rs. 850/-, accused Mohd. Ali was found in possession of Rs. 1700/- and accused Imran was found in possession of Rs.1300/-. IO seized the same through seizure memo Ex.PW11/A, Ex.PW11/B and Ex.PW11/C respectively.
46. PW-10 Ct. Mahipal corroborated PW-11 H.C Pradeep Kumar regarding receipt of secret information, arrest of accused Mohd. Furkan, Mohd. Ali and Imran, recovery of weapons & currency notes from them, recording of their disclosure statements and seizure of weapons and currency notes by the IO.
47. PW-13 H.C Ravinder Kumar corroborated PW-11 H.C Pradeep Kumar & PW-10 Ct. Mahipal regarding receipt of secret information, arrest of accused Mohd. Furkan, Mohd. Ali and Imran, recovery of weapons & currency notes from them, recording of their disclosure statements and seizure of weapons and currency notes by the IO.
48. PW-17 IO/Inspector Rakesh Ahuja also corroborated other witnesses regarding receipt of secret information, arrest of accused FIR No. : 367/08 Page 38 of 53 -39- Mohd. Furkan, Mohd. Ali and Imran, recovery of weapons & currency notes from them, recording of their disclosure statements and seizure of weapons and currency notes by the IO. He also testified that on 31.12.2008, he alongwith police staff and all the above-three persons, driver and operator of Govt. Vehicle, at the instance of these accused persons reached at the place of occurrence and accused persons pointed out the same vide memos Ex.PW13/D, Ex.PW13/E and Ex.PW13/F.
49. Ld. Defence Counsel has submitted that accused persons namely Mohd. Imran @ Kanchi, Mohd. Ali @ Babbu and Mohd. Furkan have been falsely implicated in this case and recoveries have been planted upon them. They have not been identified by the witness being present at the spot. Further, it is submitted that there are material inconsistencies in the testimonies of the witnesses.
50. PW-11 Ct. Pradeep in his cross-examination on behalf of accused Mohd. Ali, Mohd. Imran and Mohd. Furkan has stated that on 30.12.08, he was on beat duty at Sherpur near Mustafabad. IO had asked 2-3 public persons to join the police party but none agreed and they left from there without disclosing their name and addresses. The secret informer pointed out towards the accused persons at about 4:30 pm. They remained nearby the place of arrest from 11:30 to 4:30 pm. The place of arrest is a residential area. He stated that he does not remember as to which of the accused was apprehended by whom and voluntarily stated that FIR No. : 367/08 Page 39 of 53 -40- they were apprehended altogether by the police officials. Accused persons did not try to use their arms as they did not get any chance to use them. He does not know as to which of the police officials had conducted the formal search of the accused persons. He stated that IO had recorded the disclosure statements of the accused persons at the place of arrest. He stated that the writing work was completed at about 9:30 pm.
51. PW-13 H.C Ravinder Kumar in his cross-examination has stated that he was on duty with IO in the investigation of this case on 30.12.2008. He stated that the present case pertains to his beat area. He does not know whether apart from him, the other police officials were called by IO/Duty Officer to join the investigation. He does not know the owner of the private vehicle. They left the police station at about 11:00 p.m. All the police officials were in police uniform and all were carrying their respective arms. They remained sitting in the vehicles at the place of arrest from 11:30 a.m. to 4:30 p.m. He does not know as to when the secret informer met with the IO and time of giving information to the IO. IO did not ask the shopkeepers and local residents to join the investigation, however, one or two passersby were asked by the IO to join the investigation prior to their apprehension. They chased accused persons for about 50/60 yards prior to their apprehension. He does not know as to which of the police officials had apprehended which of the accused persons. Accused persons did not use their weapons. IO had asked the passersby to join the investigation after the FIR No. : 367/08 Page 40 of 53 -41- apprehension of the accused persons. IO conducted the proceedings regarding arrest of the accused persons at the same place where they were apprehended. He conducted the formal search of accused Mohd. Ali. He stated that it took about one to one and half hours to complete the proceedings at the spot and again stated that all proceedings were completed upto 5:00/5:30 p.m. at the spot. HC Pradeep had also signed the documents as witness apart from him.
52. PW-17 IO/Inspector Rakesh Ahuja in his cross-examination has stated that on 30.12.2008, the secret information was received in the police station. He had made the departure entry number but he does not remember its number. They left the police station in two maruti cars. They reached at Gali No.5B Guru Nanak Nagar, Mustafabad at about 11:30 a.m. All the police officials were in civil dress except one police official whose name he does not remember. He admitted that Gali No.5B is situated in residential area. He had asked public persons to join the investigation but none agreed. They took their positions in street prior to reaching of accused. Accused persons reached at the spot at about 4:30 p.m. The secret informer was with them and at his instance, they apprehended accused persons. Accused persons had tried to escape but they did not try to use the weapons. Before taking search, public persons were asked to join the investigation but none came forward. The accused persons were apprehended at the corner of Gali No.5B. He cannot tell the house number as he FIR No. : 367/08 Page 41 of 53 -42- does not remember the same. He stated that the writing work was conducted at the spot while sitting on the patri on the corner of the street Gali No. 5B. The writing work was completed between 6:00 to 7:00 p.m. He stated that the disclosure statements of accused persons were recorded in the police station.
53. PW-10 Ct. Mahipal in his cross-examination has stated that on 30.12.2008, IO called him from his beat area at about 10 AM. Accused Mohd. Ali, Furkan and Imran were apprehended from the street at the instance of secret informer. He does not know the house number, in whose front accused persons were apprehended. IO had asked the public persons to join the investigation before and after the arrest of the accused persons but none agreed to do so. He stated that they reached at the place of arrest of the above-said accused persons at about 11.00 AM and accused persons were apprehended at about 4.50 PM. He stated that Ct. Ravinder had apprehended accused Furkan. Accused Mohd. Ali was apprehended by him and Ct. Ajay. Accused Imran was apprehended by Ct. Naseem. IO did not apprehend any of the accused person. They did not use their weapons to apprehend the accused persons. The recovery was also effected at the place of arrest. The writing work was conducted by the IO at the Police Station. They all were in civil dress. They all were having their mobile phones. IO did not inform in the local Police Station regarding their visit nor the local police officials were called by the IO to join the investigation. They remained at the place of arrest of FIR No. : 367/08 Page 42 of 53 -43- accused persons upto 5 PM. Thereafter, they alongwith the accused persons and recovered articles at the Police Station. IO did not conduct any writing work at the place of arrest. IO had called the inhabitants of the house where the dacoity was committed namely Kartar and his two sons. He stated that no writing work was conducted in the Police Station in his presence when we returned back to the Police Station after the arrest of the accused persons. He admitted that that writing work was conducted by the IO in his absence and he only obtained his signatures on the memos.
54. PW-11 H.C Pradeep Kumar stated that they remained nearby the place of arrest from 11:30 to 4:30 pm. Whereas, PW-10 stated that they remained at the place of arrest of accused persons upto 5 PM. Whereas, PW-13 H.C Ravinder Kumar stated that all the proceedings were completed upto 5.00/5.30 PM.
55. PW-10 H.C Mahipal stated that the writing work was conducted by the IO at Police Station, whereas, PW-17 IO stated that the writing work was conducted at the spot while sitting on the patri on the corner of the street Gali No. 5B. PW-11 stated that disclosure statement of accused was recorded at the place of arrest. PW-11 H.C Pradeep Kumar stated that the writing work was completed at about 9:30 pm, whereas, PW-17 IO stated that the writing work was completed between 6:00 to 7:00 p.m. FIR No. : 367/08 Page 43 of 53 -44-
56. PW-13 H.C Ravinder Kumar stated that they remained sitting in the vehicles at the place of arrest from 11.30 AM to 4.30 PM. Whereas, PW-17 IO stated that they took their position in street prior to reaching of accused and accused persons reached at the spot at about 4.30 PM.
57. PW-13 H.C Ravinder Kumar stated that all the police officials were in police uniform and all were carrying their respective arms. Whereas, PW-10 Ct. Mahipal stated that they all were in civil dress. PW-17 IO/Inspector Rakesh Ahuja stated that all the police officials were in civil dress except one police official whose name he does not remember.
58. PW-10 Ct. Mahipal stated that IO had asked the public persons to join the investigation before and after the arrest of accused persons but none agreed to do so. PW-11 HC Pradeep Kumar stated that IO had asked 2-3 persons to join the police party but none agreed and stated that he does not remember as to whether after arrest of accused persons, public persons were again asked to join the investigation or not. PW-13 H.C Ravinder Kumar stated that IO did not ask the shopkeepers and local residents to join the investigation, however, one or two passersby were asked by the IO to join the investigation prior to their apprehension. PW-17 IO/Inspector Rakesh Ahuja stated that he had asked public persons to join the investigation but none agreed.
FIR No. : 367/08 Page 44 of 53 -45-59. Therefore, there are inconsistencies with respect to the time in conducting the proceedings, when the police party left the spot, whether the members of police party were in uniform or not, whether they were sitting in the car or had taken position in the street and whether all the documents were prepared at the police station or at the spot. Admittedly, these three accused persons were arrested from the residential area. However, no public person was joined before or subsequent to their arrest or at the time of recovery effected from these three accused persons, despite having the ample opportunity. Therefore, their version of arrest and recovery effected at their instance is doubtful. Moreover, accused persons were found in possession of currency notes. The currency notes has no identification mark that these are the same which were stolen or robbed from the house of the complainant. Therefore, recovery effected from the possession of accused Mohd. Imran, Mohd. Furkan and Mohd. Ali is doubtful and not proved. Accused Mohd. Imran @ Kanchi, Mohd. Ali @ Babbu and Mohd. Furkan are entitled to benefit of doubt.
60. Now coming to accused Kamran. The evidence against accused Kamran is that accused Shahid who was apprehended at the spot has disclosed his name being his accomplice. Accused Kamran had surrendered in the court and he has not been identified by the public witnesses when they appeared in the witness box. Therefore, the only evidence against accused Kamran is recovery effected from his house and that his co-accused Shahid has given FIR No. : 367/08 Page 45 of 53 -46- his name being his accomplice.
61. PW-1 Sh. Kartar Singh in his statement given to the police has stated that accused Shahid had disclosed the name and address of Kamran @ Chottu to them. However, when PW1 was examined in the court, he merely stated that accused Shahid also disclosed the name of his accomplice but he does not remember their names.
62. PW-17 Inspector Rakesh Ahuja has stated that during police custody remand, he alongwith IO, police staff and accused Shahid went to Mustafabad H. No. A-177, Gali No.5, Guru Nanak Nagar, Mustafabad i.e. the house of accused Kamran at the instance of accused Shahid. They found the house bolted from inside. It was got opened through one constable. Khana talasi of the said house was conducted and amount of Rs. 3000/-. He seized the same vide seizure memo.
63. PW-10 Ct. Mahipal testified that accused Shahid has confessed that he can get arrest the accused Kamran and shown his address and thereafter, he (Shahid) led the police party including himself (PW-10 Ct. Mahipal), Ct. Surender, Ct. Brijpal and Inspector Rakesh Ahuja (sic) at the house of Kamran i.e A-177, Gali No. 5-B, Guru Nanak Nagar, Mustafabad and shown the same. They found that house of Kamran was locked. Thereafter, they returned back to the police station.
FIR No. : 367/08 Page 46 of 53 -47-64. In his cross-examination on behalf of accused Kamran, PW-10 Ct.
Mahipal has stated that they went at the house of accused on motorcycles. They were on three motorcycles. They reached at the house of Kamran at about 10:30 am. The house of accused Kamran built up upto double storey. The main door of the house of accused was towards south side. The width of the street was about 15/20 ft. IO had inquired about the ownership of the house of Kamran from the neighbourer. They stayed there for about 20 minutes. In his cross-examination on behalf of accused Mohd. Ali, PW-10 has stated that the house of accused Kamran was locked. IO did not get open the said lock and IO did not put his own seal on the lock. Thereafter, they returned back to the police station at about 11 AM. He stated that they had again searched the house of accused Kamran but the house was found locked, at that time also.
65. PW-12 H.C Brij Pal has stated that accused Shahid led them at the house of Kamran but the house of Kamran found locked and hence, they returned back from there. In his cross-examination, he stated that he alongwith IO/ASI Rajinder Singh, accused, Ct. Mahipal and Ct. Surender went to the house of accused Kamran on motorcycle and reached there at about 10.00 AM. The area of the house of Kamran is about 60/70 yards. IO made inquiries from the neighbours that the owner of the house is Kamran. IO did not ask any public person/neighbourer to join the investigation at the house of Kamran nor he recorded statement of any public person.
FIR No. : 367/08 Page 47 of 53 -48-66. PW-14 S.I Rajender Singh stated that he alongwith Inspector Rakesh Ahuja, police staff and accused Shahid went to the house of accused Kamran. The house of accused Kamran was closed. Inspector Rakesh Ahuja got opened the same in presence of neighbourers and public witnesses and made search. He stated that Rs. 3000/- were recovered from almirah lying in the room of ground floor. Inspector Rakesh Ahuja prepared the khana talasi memo and seized Rs.3000/- vide seizure memo. He stated that Inspector Rakesh Ahuja had sealed the house by locking and putting seal. Thereafter, they returned back to the police station.
67. PW-17 Inspector Rakesh Ahuja stated that he alongwith IO, police staff and accused Shahid went to Mustafabad H.No. A-177, Gali No. 5, Guru Nanak Nagar, Mustafabad i.e the house of accused Kamran at the instance of accused Shahid. They found that the house was bolted from inside. It was got opened through one constable. Khanatalasi of the said house was conducted and amount of Rs. 3,000/- was recovered which were seized. Thereafter, they returned back to the PS. In his cross-examination, PW-17 IO has stated that from the police station, they went to the house of accused Kamran on 27.12.2008 at about 12.00 Noon. He stated that they went to the house of accused Kamran on two maruti cars.
68. Therefore, it is highly unbelievable that they had ever visited the house of accused Kamran alongwith accused Shahid and he had FIR No. : 367/08 Page 48 of 53 -49- pointed out the same. Even otherwise, no document has been placed on record to show that said house belongs to accused Kamran and merely because his co-accused Shahid had named him, it cannot be believed that accused Kamran was involved in the occurrence. There is no other evidence on record against accused Kamran. Therefore, accused Kamran is entitled to acquittal.
69. Accordingly as per the above-discussion, accused Shahid is convicted for the offences punishable U/s 395 IPC, U/s 397 IPC and U/s 25 and 27 of Arms Act. Accused Mohd. Imran @ Kanchi, Mohd. Ali @ Babbu and Mohd. Furkan are entitled to benefit of doubt. Accused Kamran is acquitted from the charges against him. Bail bonds of accused Mohd. Imran @ Kanchi, Mohd. Furkan, Mohd. Ali @ Babbu and Kamran stands cancelled. Their sureties discharged.
70. Let the accused Shahid be heard on quantum of sentence. Announced in the open court today i.e on 08.12.2011 GURDEEP SINGH ASJ-04/NE/KKD/DELHI/08.12.2011 FIR No. : 367/08 Page 49 of 53 -50- IN THE COURT OF SH. GURDEEP SINGH ADDITIONAL SESSION JUDGE-04, NORTH-EAST DISTRICT KARKARDOOMA COURTS:DELHI State Vs. Shahid FIR No. : 367/08 PS : Khajuri Khas, Delhi U/s : 395/397/34 IPC & U/s 25 & 27 of Arms Act ORDER ON SENTENCE 13.12.2011 Pr. : Sh. Virender Singh, Ld. Addl. P.P for State.
Convict Shahid produced in Judicial Custody.
Sh. Abdul Sattar, Ld. Legal Aid Counsel for convict. Arguments heard on sentence.
It is submitted that the convict is aged about 30 years. He is not a previous convict and has clean antecedent. It is further submitted that he has two sisters of marriageable age and he is the sole bread earner of his family. He is in J/C since 28.12.2008. Therefore, lenient view is prayed for.
On the other hand, Ld. Addl. P.P. submitted that the nature of offence is very serious and keeping in view the gravity of the offence and in order to keep safety of the public persons the convict must be given exemplary punishment.
The convict in this case alongwith his accomplices entered into the house of the complainant Kartar Singh in the night time and committed dacoity on the point of arms i.e deadly weapon and while leaving from the spot, fired upon the complainant and his family members. The FIR No. : 367/08 Page 50 of 53 -51- accomplices of the convict were also so daring that when the complainant and his family members apprehended the convict Shahid, they returned and fired at them to rescue the convict. The convict was apprehended red-handed at the spot with country made pistol. Keeping in view the nature of offence and in the manner in which it was committed no leniency can be shown. This is a case where exemplary punishment must be given so that other citizens can sleep in the night peacefully and without any fear.
The convict Shahid has been convicted for offences punishable under Section 395 IPC, U/s 397 IPC and U/s 25 & 27 of Arms Act.
Offence punishable U/s 395 IPC provides Punishment for dacoity:-
Whoever commits dacoity shall be punished with imprisonment for life, or with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine.
Offence punishable U/s 397 IPC provides that if, at the time of committing robbery or dacoity, the offence uses any deadly weapon, or causes grievous hurt to any person, or attempts to cause death or grievous hurt to any person, the imprisonment with such offender shall be punished shall not be less than seven years.
In the present case, deadly weapons were used and also attempt was made to cause grievous hurt to PW-4 Sh. Joginder Singh who is the son of the complainant. The son of the complainant was shot at, which resulted in shortening of his little finger.
Therefore, keeping in view the totality of the facts and circumstances of the case, I am of the opinion that the ends of justice FIR No. : 367/08 Page 51 of 53 -52- would be met in sentencing the convict Shahid to undergo Rigorous Imprisonment for a period of 10 years and fine of Rs. 20,000/- for offence punishable U/s 395 IPC. In default of payment of fine, he shall further undergo Simple Imprisonment for a period of one year.
Section 397 IPC is proviso to Section 395 IPC which restricts the punishment of imprisonment to the minimum of seven years. No separate sentence is passed U/s 397 IPC.
As regards offences punishable U/s 25 & 27 of Arms Act. Section 25 of Arms Act provides punishment for having in possession of arm in contravention of Section 5, be not less than one year which may extend to 3 years and shall also be liable to pay fine.
Accordingly, convict Shahid is further sentenced to undergo Rigorous Imprisonment for one year and fine of Rs. 1, 000/- for offence punishable U/s 25 Arms Act. In default of payment of fine, he shall further undergo Simple Imprisonment for a period of one month.
Section 27 of Arms Act, provides punishment not less than 3 years for users of any arm in contravention of Section 5, which may extend to 7 years and shall also be liable to fine.
Accordingly, convict Shahid is further sentenced to undergo Rigorous Imprisonment for three years and fine of Rs. 5,000/- for offence punishable U/s 27 Arms Act. In default of payment of fine, he shall further undergo Simple imprisonment for a period of three months.
All the sentences shall run consecutively.
The benefit of Section 428 Cr.P.C be given to the convict. Copy of the judgment, order on sentence, charge, evidence, FIR No. : 367/08 Page 52 of 53 -53- statement of accused, exhibited documents etc. duly attested by the reader of the Court be given to the convict, free of cost. The case property, if any, be destroyed after the expiry of the period of appeal.
File be consigned to record room.
Announced in the open court today i.e. on 13.12.2011 GURDEEP SINGH ASJ-04/NE/KKD/DELHI/13.12.2011 FIR No. : 367/08 Page 53 of 53