Delhi District Court
State vs . 1. Zakir @ Nasir on 20 December, 2012
IN THE COURT OF SH RAJENDER KUMAR SHASTRI
ADDL. SESSIONS JUDGE02:SOUTH EAST
SAKET COURT: NEW DELHI
IN RE: ID No. 02403R0019562009
SC No. 50/09
FIR No. 317/08
PS Ambedkar Nagar
State Vs. 1. Zakir @ Nasir
S/o Sh. Anwar Hussain
R/o A119, Sangam Vihar,
New Delhi.
2. Israel @ Ajay
S/o Sh. Shahabuddin
R/o Vill. Samana
Kamaruddin Nagar,
Distt. Ghaziabad, U.P.
3. Om Shiv @ Kallu
S/o Sh. Pyare Lal
R/o Shiv Durga Vihar,
D3/155, Lakarpur, Faridabad,
Haryana.
__________________________________________________________
Date of Institution : 15.01.2009
Date of arguments : 07.12.2012
Date of judgment : 20.12.2012
SC No. 50/09 1 of 13
JUDGMENT
As per case of prosecution, on 12.07.2008 at 7.37 pm, an information was received in police station Ambedkar Nagar about firing in EBlock, Mahilla Mandal, Madangir. Information was recorded as DD No. 23A and was sent to SI Hukum Singh for investigation. The intimation was also given to the SHO Inspector Incharge (Law and Order) and Inspector Incharge (Investigation) posted in that police station. SI Hukum Singh (the IO) reached at spot along with Ct. Sukhbir. A crowd of people was gathered there. Injured Pawan Kumar and Naresh Kumar were told to have been referred to Batra Hospital. IO noticed bullet marks on the glass of counter affixed in shop. Four used cartridges of 7.15 bore and three used cartridges of 7.62 x 25 bore were lying there. Some blood was lying under the counter. No eye witness was found at spot. IO called crime team through police control room. IO went Batra Hospital deputing HC Girdhar and another official to protect the spot. Pawan Kumar Garg and Naresh Kumar were found admitted in that hospital. IO procured MLC of both of them. On the endorsement made by IO, FIR in this case was registered for offence punishable under Section 307/34 IPC and under Section 25 and 27 of The Arms Act. Further investigation was assigned to Insp. Desh Raj Yadav.
IO reached Batra Hospital and seized blood stained SC No. 50/09 2 of 13 clothes of injured. He returned to spot and collected cartridges found lying there. All were kept in two different plastic containers sealed by seal of DRY. Blood lying at spot was also picked up and kept in a different plastic container which was also sealed by seal of DRY. IO also seized bullet pallet from spot, which was kept in separate plastic container and sealed with same seal.
On 31.07.2008, accused Nasir @ Zakir was arrested by SI Jeet Singh of Special Staff in case FIR no. 407/08 police station Sangam Vihar. During interrogation, said accused gave a statement disclosing involvement of himself as well as of his associates namely Om Prakash @ Bunty, Rajesh @ Pinny, Israil and Om Shiva in crime in question. Accused Israil @ Ajay Bidhuri was arrested by SI Hira Lal on 29.08.2008. The latter also gave statement admitting involvement of all these accused in this case. On an application filed by IO, accused Nasir and Israil refused to participate in TIP. Om Prakash @ Bunty and Rajesh @ Pinny were known to have been killed in an encounter with the police. Accused Om Shiv was arrested by Special Cell of Delhi Police in case FIR No. 60/08.
After investigation of the case, police filed report under Section 173 Cr.P.C. indicting all accused for offence punishable under Section 397/307/34 IPC as well as for offence punishable under Section 25/27 of the Arms Act. Accused Zakir @ Nasir, Israil @ Ajay and Om SC No. 50/09 3 of 13 Shiv @ Kalu were charged by this court for offence punishable under Section 393/398 read with Section 34 IPC, 307 read with Section 34 IPC and under Section 392/397 IPC read with Section 34 IPC. All of accused pleaded not guilty and claimed trial, when charge was read over and explained to them.
In order to bring home its case, prosecution examined Sh. Sachin as PW1, Sh. Mahavir Prasad as PW2, Sh. Ashok Kumar as PW3, Sh. Naresh Kumar as PW4, Sh. Pawan Kumar as PW5, HC Manohar Lal as PW6, Sh. Om Prakash as PW7, SI Jeet Singh as PW8, W/HC Teresa Tirkey as PW9, SI Hira Lal as PW10, Dr. Amit Buttan as PW11, HC Girdhari as PW12, SI Jitender Singh as PW13, Ct. Vikram Singh as PW14, HC Mahender as PW15, Sh. Rohit as PW16, Ct. Subhash as PW17, Ct. Sukhbir Singh as PW18, HC Giriraj as PW19, Retired SI Hukam Singh as PW20, Sh. Kuldeep Narayan, CCJ cumARC as PW21, Inspector Upender Solanki as PW22, Inspector Attar Singh as PW23, ASI Khem Singh as PW24 and Inspector Deshraj Yadav as PW25.
In their statements recorded under Section 313 Cr.P.C., the accused persons claimed the evidence appeared on record and put to them as wrong. As per accused Zakir @ Nasir, he was falsely implicated in 1718 cases including case in hand, though he was acquitted in 78 cases. None of accused opted to lead any evidence in his defence.
SC No. 50/09 4 of 13 I have heard Ld. Addl. PP for State and Ld. Counsel appearing on behalf of accused.
Inspector Deshraj Yadav (IO) who has been examined as PW25, stated on oath that on 12.07.2008, he was posted as Inspector Law & Order in PS Ambedkar Nagar. On that day at 7.45 pm, on receipt of DD No. 24A about firing at Chandrawal Road, Near Mahila Mandal, Mandangir, New Delhi, he reached at spot alongwith SI Jitender and Ct. Devender. They learnt about two persons namely Naresh Kumar and Pawan Kumar having suffered injuries at E1st/1, Madangir, New Delhi. The injured were reported to have been taken to Batra Hospital. He went to said hospital. Injured were opined to be unfit for giving statements. On 13.07.2008, he went to Batra Hospital again. The injured were still unfit to give statement. He examined injured Naresh Kumar on 27.07.2008 and Pawan Kumar on 07.08.2008. This witness also stated about arrest of accused Nasir on 18.08.2008 and again filing of an application by him for TIP of accused Nasir. The TIP could not be conducted due to refusal by said accused to participate in TIP. Again, accused Israil was arrested on 02.09.2008. He filed application for TIP of this accused also, which was conducted on 04.09.2008. PW25 further stated about arrest of accused Om Shiv on 24.12.2008.
SI Jitender Singh (PW13) verified to have joined SC No. 50/09 5 of 13 investigation alongwith Inspector Deshraj Yadav and Ct. Devender on 12.07.2008. Inspector Atar Singh (PW23) and Inspector Upender Solanki (PW22) corroborated the arrest of accused Om Shiv on 26.10.2008, when the latter came from Najafgarh side through drain in a Maruti Esteem car. HC Girdhari (PW12) stated to have reached at spot on 12.07.2008 on receipt of DD No. 23A. This witness noticed that there were some marks on the glass of counter of shop E1st/1, Madangir, New Delhi. Seven cartridges were lying there, apart from blood and pallet which were lying on the floor.
Sh. Kuldeep Narayan, the then MM, New Delhi (PW21) stated about TIP of accused Israil @ Ajay Bidhuri, conducted on 04.09.2008. As per Ld. MM, witness Om Prakash could not identify accused Israil from 10 participants, who joined the TIP proceedings. As per PW21, IO filed TIP application for accused Zakir also, which was marked to him by his Link MM Sh. Gautam Manan. TIP was fixed for 18.08.2008. The accused refused to participate in TIP, despite the fact that he explained to the accused the consequences of his refusal to the participation.
Sh. Pawan Kumar (PW5) and Sh. Naresh Kumar (PW4) are stated to be injured as well as eye witnesses of the incident. Sh. Pawan Kumar (PW5) reiterated the incident in court as, that on 12.07.2008 at about 7.157.30 pm, he was present at his shop bearing SC No. 50/09 6 of 13 municipal No. E1/1, Madangir, New Delhi. Two motorcyclists came to his shop. They demanded cash from him, on the point of a revolver. He picked up a chair and thrown upon them. One of those boys fired gunshot on him, resulting which he sustained injury on his neck and on right arm. He had a licensed revolver. He whipped out the same. PW5 reminded that the offenders were 45 persons in total, who had come on two motorcycles. All of them ran away, firing gunshots in the air. The witness pointed out towards Israil, stating that he was same person, who had fired upon him and accused Om Shiv, who remained standing outside the shop and ran away alongwith coaccused, firing in the air.
Injured Naresh Kumar (PW4) narrated the incident in court as, that on 12.07.2008, he was present at his shop. At about 7.30 pm, some shopkeeper told him that a robbery was committed at the shop of his elder brother Tirathraj (Pardhan Ji) and firing was still going there. He picked up a danda (stick) and ran towards the shop of his brother. When he reached there, he saw one person had kept engine of motorcycle started and another was riding on the pillion seat. He hit the pillion rider with that danda on his head. Another boy was also there, riding a motorbike. He (boy) fired three shots towards him. On being hit by bullets, he suffered injury under left arm pit and fell down on road. Aforementioned three boys ran away on their motorcycles, firing gunshots in the air. This witness pointed towards accused Zakir, stating SC No. 50/09 7 of 13 that he is same person, whom he i.e. PW4 had hit with danda.
Sh. Om Prakash (PW7), Sh. Ashok Kumar (PW3), Sh. Mahavir Prasad (PW2) and Sh. Sachin (PW1) are also stated to be eye witnesses of incident. As per Om Prakash (PW7), on a day (the date PW7 did not remember) at about 7.007.15 pm, he was present at the shop of Mr. Pawan Kumar, situated at Madangir, New Delhi. He was standing at the doors of shop. Mr. Pawan Kumar was working inside on a computer. Three persons came there. Two of them entered inside the shop. They were armed with some weapon like pistol. When he saw the pistol in the hands of those persons, he tried to run away, but was caught by one of them. The offender took him inside the shop. He was having a pistol in his hand. All three of intruders asked Pawan Kumar to open cash box. They fired in the air as well as on Pawan Kumar. One bullet hit Pawan Kumar on his neck. Thereafter, the intruders ran away from the shop. He had hidden himself inside the shop in its rear portion. PW7 identified accused Israil @ Ajay as one of offenders, who had entered in shop of Pawan Kumar.
As per Ashok Kumar (PW3), on 12.07.2008 at about 7.30 pm, when he was present outside the shop of his elder brother Pawan Kumar bearing No. E1/1, Madangir, New Delhi, two persons entered inside the shop other two remained standing outside. One of those who were outside the shop, remained seated sitting on a SC No. 50/09 8 of 13 motorcycle. Two persons who tress passed in the shop, tried to commit robbery. When Pawan Kumar objected, the intruders fired gunshot upon him, as a result of which, Pawan Kumar suffered injury. When he (PW3) went inside the shop, the intruders pushed him aside. They ran away from spot, firing gunshots. His uncle Sh. Naresh Kumar Garg tried to stop the offenders, who were on motorcycle. He i.e. Naresh Kumar Garg gave danda blow to the pillion rider, as a result of which, the motorcycle lost balance. The motorcyclist fired gunshot on his uncle i.e. Naresh Kumar Garg. The latter suffered injury in his stomach. PW3 pointed out towards accused Israil, stating that he alongwith one Bunty, whose name he came to know later on, having died in an encounter, had fired upon his brother Pawan Kumar and he i.e. Israil is same person, who had pushed him aside when he went inside the shop of Pawan Kumar. PW Ashok Kumar also pointed out towards accused Om Shiv and Zakir, stating that they remained standing outside the shop on motorcycle and ran away from there, alongwith accused Israil and Bunty, while firing gunshots in the air.
Sh. Mahavir Prasad (PW2) and Sh. Sachin (PW1) claimed to have seen some persons between 7.007.30 pm on 12.07.2008, going towards Mahila Mandal, while firing in the air.
It is contended by Ld. Defence Counsel that the prosecution has failed to prove its case against any of accused. None of SC No. 50/09 9 of 13 offenders was apprehended at spot. It is admitted by SI Jitender Singh (PW13) in his cross examination that there was a police picket at a distance of about 20 meters from the place of occurrence. Referring said admission, Ld. Counsel surprised as how such a grave incident was not noticed by the police officials present at a hand's distance. It was disclosed by Sh. Kuldeep Narayan, Ld. MM that PW Om Prakash could not identify accused Israil from 10 participants in a TIP, while same witness i.e. Om Prakash, when examined in court as PW7 pointed towards accused Israil, stating that he was same person, who entered in the shop of Pawan Kumar. In the opinion of Ld. Counsel, there was no use of such identification, when witness could not identify the accused in a TIP proceedings conducted by the Magistrate, during investigation of case.
True, when Sh. Om Prakash (PW7) could not identify accused Israil during TIP proceedings, it is not of much importance that said witness identified accused Israil in court as same person who tress passed in the shop of Pawan Kumar, but Sh. Om Prakash (PW7) was not the only eye witness of incident in question. Sh. Pawan Kumar (PW5), Sh. Naresh Kumar (PW4) and Ashok Kumar (PW3) are also eye witnesses of occurrence. PW5 and PW4 suffered bullet injuries. Ashok Kumar (PW3) identified accused Om Shiv and Zakir as same persons, who were standing outside shop of Pawan Kumar and a SC No. 50/09 10 of 13 motorbike and fled away along with Israil and Bunty while firing in air. Naresh Kumar (PW4) identified Zakir as same whom he (PW4) had given danda blow. Pawan Kumar (PW5) identified accused Israil as same, who fired at him (PW5) and towards Om Parkash. As said witnesses faced the offenders at spot for a considerable time, it is not unbelievable that they could identify the accused properly.
As discussed above, accused Zakir refused from participation in TIP. Ld. MM (PW21) recorded statement of accused i.e. Ex. PW21/E. As per him, accused refused from participation, alleging that he had been shown to many persons in police station. There is nothing on the record to show that accused Zakir @ Nasir was shown to any public person including injured/ complainant in the police station. In this way, an adverse inference can be drawn against accused Zakir @ Nasir for his refusal from participation in TIP.
I have no reason to disbelieve eye witnesses mentioned above, who identified accused Om Shiv and Zakir being present outside the shop of complainant and running away alongwith coaccused, firing in the air in order to escape and accused Israil as same person, who fired at Pawan Kumar. It was observed by this court while examining Pawan Kumar (PW5) that the witness was not able to speak fluently due to injury suffered by him on his neck. The injuries on the person of Pawan Kumar and Naresh Kumar are well established from the MLCs SC No. 50/09 11 of 13 No. 5587 (Ex PW11/A) and No. 5589 (Ex. PW11/B). Dr. Amit Bhuttan (PW11) identified signatures of Dr. Ayushman, who medically examined said injured and prepared MLCs Ex. PW11/A and Ex. PW11/B. As per PW11, Dr. Ayushman left their hospital i.e. Batra Hospital and his whereabouts were not known. He i.e. PW11 identified signatures of Dr. Ayushman after comparing the same from the record of hospital brought by him in the court.
Ld. Addl. PP did not dispute that a police picket was near the spot, but as per her, there was no police personnel in that police picket at the time of incident.
In this way, from the statements of said witnesses particularly the eye witnesses, it is well proved on the record that it was accused Israil, who accompanied by cooffenders tresspassed in the shop of Pawan Kumar (PW5) and demanded cash from said witness, showing a revolver. When said Pawan Kumar did not hand over the cash, he was fired at by accused Israil, while other accused i.e. Om Shiv and Zakir remained standing outside, to facilitate their escape. After hearing the incident, Naresh Kumar (PW4) who was uncle of injured Pawan Kumar reached there and gave danda blow to the pillion rider i.e. accused Zakir, perhaps in order to apprehend them, one of offenders fired at him i.e. Naresh Kumar who suffered injury. It is not the case of prosecution even that the accused succeeded in robbing the shop of SC No. 50/09 12 of 13 Pawan Kumar (PW5). All three accused are thus convicted for an attempt to commit robbery in the shop of Pawan Kumar armed with deadly weapons and having common intention with each other, punishable U/s 393/398/34 IPC and again for causing injury to Pawan Kumar (PW5) and to Naresh Kumar (PW4) with the knowledge that causing injury by gunshot in that manner, could result in the death of said injured i.e. Pawan Kumar and Naresh Kumar, punishable U/s 307/34 IPC.
Though the accused persons were also charged for robbery in the shop of Mahavir Prasad situated at E1st/1, Madangir, New Delhi and taking away Rs. 10,00012,000/ in cash from the box of said shop, punishable U/s 392/397/34 IPC, but prosecution failed to prove any such robbery. All three accused persons are thus acquitted for that offence.
Announced in open court (RAJENDER KUMAR SHASTRI)
today i.e. 20th December 2012 Addl. Sessions Judge02:South East
Saket Court: New Delhi
SC No. 50/09 13 of 13