Delhi District Court
Criminal Case/345/1999 on 2 April, 2012
FIR No. 345/99 S/v Abdul Fahim etc. U/s 224/186/353/332/511/34 IPC PS: Subzi Mandi IN THE COURT OF SH. NEERAJ GAUR, LD.METROPOLITAN MAGISTRATEIII/NORTH, DELHI FIR No. 345/99 S/v Abdul Fahim etc. U/s 224//353/332/511/34 IPC PS: Subzi Mandi C/N. 548/2 U. ID No. 02401R0126911999 Date of Institution : 22.11.1995 Date of commission of offence : 17.09.1999 Name of the complainant : Ct. Harender Singh Name and address of accused : (1)Abdul Fahim s/o Shahabuddin, R/o 1053, Bartan Market, Sadar Bazar, Delhi (declared PO on 31.08.2010) (2) Shakeel Ahmed @ Suraj s/o Nazir Ahmad, r/o A97, Old Seelampur, Delhi. (3) Vidya Sagar s/o Harish Chander r/o Gali No. 4, Amar Colony, Panchwati, Ghaizabad (UP) (4) Asif @ Tayyab s/o Shamshul Jaman, r/o Jhuggi Kucheli U. ID NO. 02401R0126911999 Page No. 1 of 13 FIR No. 345/99 S/v Abdul Fahim etc. U/s 224/186/353/332/511/34 IPC PS: Subzi Mandi Colony, Ghaziabad, UP. Offence complaint off : U/S 224/353/332/511/34 IPC Plea of guilt : Pleaded not guilty Final Order : Accused Asif convicted u/s 186/332/353/225 IPC and accused Shakeel and Vidya Sagar acquitted. Date of reserve for order : 02.04.2012 Date for announcing the order : 02.04.2012 J U D G M E N T :
Brief facts and pre trial proceedings
1. The allegations made in the chargesheet are that on 17.09.99, PW8 Ct. Harender, posted at Tis Hazari Lockup brought accused Abdul Fahim (since PO) to court NO. 260 where the concerned Naib Court instructed him to take the accused back to Lockup. One person, in suspicious circumstances, was communicating with Abdul Fahim through his eyes. When Abdul U. ID NO. 02401R0126911999 Page No. 2 of 13 FIR No. 345/99 S/v Abdul Fahim etc. U/s 224/186/353/332/511/34 IPC PS: Subzi Mandi Fahim was being brought back to the Lock up , someone spilled red chilly powder in the eyes of PW8 near the Canteen. Abdul Fahim released himself from the grip of PW8 and started running away. PW8 raised alarm pursuant to which, certain police officials in civil dress apprehended Abdul Fahim. Accused Asif @ Tayyab was arrested on the same day in a case of PS Shahdara. Accused Shakil and Vidya Sagar were also arrested on 25.09.99 in a separate case by officials of special staff and they also allegedly confessed about commission of this crime and that accused Asif was the one who spilled the chilly powder.
Trial
2. On completion of the investigation, all four accused persons were chargesheeted. After necessary compliances, charges u/s 224/186/332/353/511 r/w/s 34 IPC were framed against all the four accused persons who pleaded not guilty and claimed trial. U. ID NO. 02401R0126911999 Page No. 3 of 13 FIR No. 345/99 S/v Abdul Fahim etc. U/s 224/186/353/332/511/34 IPC PS: Subzi Mandi
3. The prosecution led its evidence and on 09.07.02, the statement of accused persons u/s 313 CrPC were recorded. Thereafter, an application u/s 311 CrPC moved by the prosecution was allowed and remaining prosecution evidence was also led. Accused Abdul Fahim absconded and he was declared a PO vide order dated 31.08.2010.
4. The prosecution examined 17 witnesses in total whose testimonies are briefly touched upon as under:
(i) PW1 HC Sunita is a witness of formal nature who stated that while being posted as a duty officer, she recorded the instant FIR Ex.PW1/A on receipt of a rukka brought by Ct. Kartar Singh.
(ii) PW2 Ct. Kartar Singh stated that on 17.09.99, while being posted at PP Tis Hazari, DD NO. 17 was received from Tis Hazari Lockup and he along with HC Hari Singh went to the Lockup where SI Ram Lal met. Ct. Harender and accused Abdul Fahim U. ID NO. 02401R0126911999 Page No. 4 of 13 FIR No. 345/99 S/v Abdul Fahim etc. U/s 224/186/353/332/511/34 IPC PS: Subzi Mandi were taken to HRH where MLC was obtained. SI Ram Lal recorded the statement of Ct. Harender, prepared rukka and gave it to PW2 for registration of the case and PW2 got the case registered at PS. He along with IO went to certain places for search of other culprits.
(iii) PW3 ACP Ram Singh deposed that he filed the complaint Ex.PW3/A u/s 195 CrPC.
(iv) PW4 Dr. Y.C.Kaushik deposed that on 17.09.99 he examined Ct. Harender vide MLC Ex.PW4/A.
(v) PW5 Ct.Gajender deposed that while being posted as DD writer, he wrote DD no. 17 dated 17.09.99 Ex.PW5/A and DD no.
13 dated 26.09.99 Ex.PW5/B.
(vi) PW11 Sh. K.V. Singh , Record Clerk from HRH deposed that the MLC Ex.PW11/A of accused Abdul Fahim was prepared by Dr.R. Sharma.
U. ID NO. 02401R0126911999 Page No. 5 of 13 FIR No. 345/99 S/v Abdul Fahim etc. U/s 224/186/353/332/511/34 IPC PS: Subzi Mandi
(vii) PW12 Ct. Satpal stated that on 17.09.99, while being posted as DD writer, he recorded the DD no. 8 marked as Ex.PW12/A.
(viii) PW13 Sh. Harish Dudani, the then Ld. Civil Judge stated that on 04.10.99 while being posted as MM, the application for TIP of accused Raju @ Asif @ Tayyab was moved vide application Ex.PW13/A. The TIP proceedings Ex.PW13/B were conducted.
(ix) PW6 Ct. Nandu Kumar and PW16 HC Sultan Singh stated that on 17.09.99, while being posted at third battalion, they were performing their duty in civil dress at Tis Hazari to keep a watch on the accused persons. When they reached near the Canteen at ground floor, they heard an alarm "Bhag gaya" and they immediately apprehended accused Abdul Fahim and brought him to the Lockup and handed him over to SI Ram Lal. PW6 U. ID NO. 02401R0126911999 Page No. 6 of 13 FIR No. 345/99 S/v Abdul Fahim etc. U/s 224/186/353/332/511/34 IPC PS: Subzi Mandi identified Abdul Fahim in the Court.
(x) PW9 HC Shashi Kant, PW10 HC Ravinder, PW14 SI Naseeb Singh and PW17 SI Ram Kumar deposed that on 25.09.99, they were posted at Operation Cell, Special Staff North District when a secret information was received regarding the gang of Fahimuddin. A raid was conducted. Three persons were arrested i.e. accused Vidya Sagar , accused Shakil and one Ajay. Accused Vidya Sagar and Shakeel disclosed that they were the accomplices who facilitated the escape of Abdul Fahim.
(xi) PW15 SI Dhiraj Narang is the first IO of the case who deposed that on 24.09.99, he formally arrested Abdul Fahim in this case vide conviction slip Ex.PW15/A. On 26.09.99, he received the information about the confession made by accused Shakeel and Vidya Sagar regarding the instant case. Thereafter, PW15 formally arrested Shakeel and Vidya Sagar and prepared U. ID NO. 02401R0126911999 Page No. 7 of 13 FIR No. 345/99 S/v Abdul Fahim etc. U/s 224/186/353/332/511/34 IPC PS: Subzi Mandi the conviction slip Ex.PW15/B. They also disclosed that accused Asif @ Tayyab was also involved in this case who was the one who threw the chilly powder. PW15 also applied for production warrant for Asif and thereafter, he formally arrested Asif and prepared the conviction slip ExPW15/C. He also moved the application Ex.PW13/A for conducting TIP of Asif.
(xii) PW7 SI Ram Lal deposed that while being posted as second InCharge Lockup , Tis Hazari, Ct. Harender was sent to the Court with accused Abdul Fahim to be produced in the Court of Sh. S.S. Malhotra. Ct. Harender returned to the lockup and informed that when he was passing near Court No. 37, two persons were chasing him and they threw chilly powder in his eyes. PW7 made a complaint Ex.PW5/A to the InCharge, Lockup.
(xiii) PW8 Ct. Harender is the most material witness who U. ID NO. 02401R0126911999 Page No. 8 of 13 FIR No. 345/99 S/v Abdul Fahim etc. U/s 224/186/353/332/511/34 IPC PS: Subzi Mandi supported the prosecution case regarding the incident. He categorically deposed that Abdul Fahim ran away after someone threw red chilly powder in his eyes and Abdul Fahim was apprehended with the help of police officials in civil dress. He also identified accused Raju @ Asif @ Tayyab as the person who had thrown red chilly powder in his eyes.
Statement of accused and defence
5. After concluding prosecution evidence, all the three accused persons have been examined u/s 313 CRPC during which they claimed their innocence. They further stated that they have been arrested from other different places in the morning time and lateron they were falsely implicated in the present case. They did not prefer to lead any evidence in defence. Arguments and appreciation of evidence in the light of legal propositions
6. Ld. defence counsel firstly argued that as per PW7, Ct. U. ID NO. 02401R0126911999 Page No. 9 of 13 FIR No. 345/99 S/v Abdul Fahim etc. U/s 224/186/353/332/511/34 IPC PS: Subzi Mandi Harender informed that two persons threw the chilly powder whereas as per Ct. Harender only one person threw the chilly powder. It is argued that it is a serious contradiction giving a benefit of doubt to the accused persons.
6.1 PW7 was giving an account of the version given by PW8. This itself is hear say evidence. Moreover, it is not as serious a contradiction which can be considered fatal for the entire prosecution case.
7. Ld. Defence counsel highlighted that during cross examination, PW8 stated that he had seen the accused persons prior to the incident but he could not tell when he saw them. 7.1 7.1 PW8 has clearly identified accused Abdul Fahim in the Court. Regarding the identity of the accused Asif, Ld. APP argued that Asif refused to participate in TIP and adverse inference has to be drawn against Asif.
U. ID NO. 02401R0126911999 Page No. 10 of 13 FIR No. 345/99 S/v Abdul Fahim etc. U/s 224/186/353/332/511/34 IPC PS: Subzi Mandi 7.2 I have given my due consideration. The IO applied for subjecting Asif to TIP but he himself refused to participate in TIP. Now, Asif cannot take the plea that his identification in the Court for the first time by PW8 cannot be relied upon. In my opinion, the prosecution has firmly established the identity of accused Asif as the person who spilled red chilly powder in the eyes of PW8.
8. Regarding accused Shakeel Ahmed and Vidya Sagar, the evidence available on record is too insufficient. They could not be identified by PW8 as the persons who were facilitating the escape of Abdul Fahim in any manner. It could not be established that they were at all present in Tis Hazari Court Complex on that day. Their confessions made to police in custody of police are inadmissible. In these circumstances, no conviction can be recorded against them.
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9. After going through the evidence and in view of the above discussion, it is duly proved by the prosecution that accused Asif @ Raju @ Tayyab threw red chilly powder in the eyes of Ct. Harender and thereby he rescued accused Abdul Fahim from the lawful custody of Ct. Harender. Although, the accused has been charged u/s 224 IPC, however, the facts proved on record constitute the offence u/s 225 IPC. The accused has been well aware of the accusation made against him and in my opinion, he has not been prejudiced at all during trial due to the mentioning of incorrect Section. Such a defect in charge can be considered as an irregularity which has not occasioned failure of justice. Accordingly, I hold accused Asif @ Tayyab guilty u/s 225 IPC.
10. It is also proved that accused Asif voluntarily obstructed Ct.
Harender, a public servant in discharge of his public function, hence, Asif is further held guilty u/s 186 IPC. U. ID NO. 02401R0126911999 Page No. 12 of 13 FIR No. 345/99 S/v Abdul Fahim etc. U/s 224/186/353/332/511/34 IPC PS: Subzi Mandi
11. Since Asif is also proved to have assaulted, to have used criminal force and to have voluntarily caused hurt to a public servant with intent to deter him from discharging his public duties. Therefore, he is further guilty u/s 332/353 IPC.
12. For want of evidence, accused Shakeel Ahmed and Vidya Sagar are acquitted.
Conclusion
13. Accused Asif @ Tayab is convicted u/s 186/332/353/225 IPC and accused Shakeel and Vidya Sagar are acquitted of the charges framed against them.
Arguments on sentence for convict Asif shall be heard separately.
Announced in open court (Neeraj Gaur)
today i.e. 02.04.2012 Metropolitan MagistrateIII/N
Tis Hazari Courts, Delhi
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