Delhi District Court
State vs . Mohd. Shahid And Another on 15 September, 2018
IN THE COURT OF O. P. SAINI: ADDL. SESSIONS JUDGE/SPL.
JUDGE (CBI04), PATIALA HOUSE COURT, NEW DELHI
SC No. 18/2018
State Vs. Mohd. Shahid and Another
FIR No. 206/2009
U/s: 399/402 IPC and 25 Arms Act
PS: Vasant Kunj (North)
1. Date of Institution : 14.07.2009
2. Date of Commencement
of Final Arguments : 15.09.2018
3. Date of Conclusion of
Final Arguments : 15.09.2018
4. Date of Reserving Order : 15.09.2018
5. Date of Pronouncement : 15.09.2018
6. Whether Acquitted or
Convicted? : Both accused convicted
under Section 25 Arms
Act.
Present: Sh. Pradeep Kumar, Addl. PP for the State.
Sh. Dinesh Prasad Pandey, Advocate for both accused,
that is, Mohd. Shahid and Mohd. Shakib.
JUDGMENT
Brief Facts of the Case The instant case was registered on the allegations that ___________________________________________________________________________ State Vs. Mohd. Shahid and Another FIR No. 206/2009, PS: Vasant Kunj (N) Page 1 of 16 on 30.05.2009, ASI Om Prakash was present in AATS Office, Vasant Kunj, when he received information at about 06:00 PM that gang of Mohd. Shahid will assemble at Arawali Biodiversity Park, Vasant Kunj with arms and ammunition to commit some serious offence in the nearby residential houses. The secret information was recorded and a raiding party consisting of SI Balihar, ASI Ram Bhool, HC Pramod, HC Sanjeet, Ct. Anil Kumar, Ct. Ajay Tokas, Ct. Suresh, Ct. Ratan Lal, Ct. Yogender, Ct. Rehman and Ct. Sanjeev Saha was constituted and thereafter ASI Om Prakash alongwith raiding party members and secret informer went to the spot in government vehicle No.DL1VA6756, being driven by Ct. Naresh. On the way, public persons were requested to join the raiding party but all refused by expressing their just compulsions. The police party reached the spot and members of the police party were deployed at different locations to apprehend the gang members. HC Pramod was deputed to hear the conversation of the gang members. At about 07:30 PM, two persons, namely, Deepak and Salman came on foot and thereafter two more persons, namely, Shakib and Mujahid also came on and thereafter about 1520 minutes, accused Mohd. Shahid @ Ejaj and Mohd. Shakib came on the spot on motorcycle. Their names were learnt subsequently. All of them sat in the bushes and a conversation took place between them to the effect that it was difficult to commit offences at public places on account of checking by the police and they should commit offences in the ___________________________________________________________________________ State Vs. Mohd. Shahid and Another FIR No. 206/2009, PS: Vasant Kunj (N) Page 2 of 16 residential houses. This conversation was heard by HC Pramod as well as ASI Om Prakash. A signal was given to the raiding party, and all the six persons assembled there were apprehended by the members of the police party and different weapons were recovered from their possession. A buttondar knife was recovered from accused Mohd. Shahid. Similarly, buttondar knife was also recovered from accused Mohd. Shakib. An iron rod each was recovered from accused Mohd. Salman and Mohd. Shakir. Plastic rope and torch were recovered from accused Mohd. Mujahid. One buttondar knife was recovered from accused Deepak.
2. During the investigation, all the six accused were arrested, their personal search was conducted, sketches of the recovered weapons were prepared and the same were seized, FIR was got registered, statements of the witnesses were recorded, investigation was completed and the instant charge sheet was filed.
3. On filing of the charge sheet, the copies of documents were supplied to the accused and the case was committed to Court of Sessions. Vide order dated 17.12.2011, charges under Section 399/402 IPC were framed against accused Mohd. Shahid @ Ejaj, Mohd. Shakib and Deepak @ Ashish, as remaining three accused were proclaimed offenders. Charge was also framed against accused Mohd. Shahid, Mohd. Shakib and Deepak under Section 25 Arms Act. The charges were read over and explained to the accused by my learned Predecessor to which they pleaded not guilty and ___________________________________________________________________________ State Vs. Mohd. Shahid and Another FIR No. 206/2009, PS: Vasant Kunj (N) Page 3 of 16 claimed trial.
Prosecution Evidence
4. In the course of the trial, when PW 1 HC Ratan Lal and PW 2 HC Sube Singh were examined, accused Mohd. Shahid and Mohd. Shakib also absconded and were declared proclaimed offenders. On their apprehension and production before the Court, further evidence has been recorded against them.
5. In support of its case, prosecution has examined seven witnesses in all. PW 1 HC Ratan Lal, PW 3 Ct. A. Rehman, PW 4 HC Pramod Kumar, PW 5 HC Yogender Singh and PW 6 HC Ajay Tokas were member of the raiding party, which was led by PW 7 ASI Om Prakash. PW 2 ASI Sube Singh is the Duty Officer, who had registered the FIR, Ex PW 2/A.
6. All six witnesses have deposed in detail along the lines of the prosecution case. PW 4 HC Pramod and PW 7 ASI Om Prakash have deposed that they had heard the conversation of the accused persons. As per the deposition of PW 7 Retired SI Om Prakash, earlier ASI, HC Pramod apprehended accused Mohd. Shahid, HC Sanjeev apprehended Mohd. Shakib, Ct. Ajay Tokas apprehended Deepak @ Shakir, Ct. Rehman apprehended Mohd. Shakir, Ct. Ratanlal apprehended Mujahid. Buttondar knives Ex P1 was recovered from accused Mohd. Shahid, Ex P2 was recovered from accused Deepak, Ex P3 was recovered from accused Shakib.
___________________________________________________________________________ State Vs. Mohd. Shahid and Another FIR No. 206/2009, PS: Vasant Kunj (N) Page 4 of 16 Iron rods Ex P4 and P5 were recovered from accused Shakir and Mohd. Salman. A bunch of keys, Ex P6, was also recovered from him. Two nylon ropes and a torch, Ex P7 and P8, were recovered from accused Mujahid. PW 4 has also proved the arrest memo of the six accused, Ex PW 4/G1 to G6. The sketch of the knife recovered from three accused are Ex PW 4/A, 7/A and 6/A.
7. After examination of the seven witnesses, prosecution evidence was closed.
Statements of the Accused and Defence Evidence
8. Statements of accused Mohd. Shahid and Mohd. Shakib were recorded under Section 313 CrPC wherein they denied the allegations against them as incorrect and stated that they have been falsely implicated in this case and nothing was recovered from them. Both the accused did not want to lead any evidence in their defence.
Submission of the Parties
9. I have heard the arguments at the bar and have carefully gone through the record.
10. It is submitted by learned Addl. PP that prosecution has examined six witnesses, who were members of the raiding party, and all of them have supported the prosecution version that all the six accused had assembled in Biodiversity Park on 30.05.2009 in ___________________________________________________________________________ State Vs. Mohd. Shahid and Another FIR No. 206/2009, PS: Vasant Kunj (N) Page 5 of 16 the area of Police Station Vasant Kunj and their conversations were heard to the effect that they would commit crime in the nearby houses. It is further submitted that all the accused were apprehended and weapons were recovered from them. It is further submitted that buttondar knives were recovered from the possession of accused Mohd. Shahid and Mohd. Shakib. It is further submitted that on the basis of material on record, prosecution has been successful in proving its case against the accused under Section 399/402 IPC as well as under Section 25 Arms Act.
11. On the other hand, it is submitted by learned defence counsel that the entire case against the accused is fabricated one, as they were picked up from different locations and implicated in this case. It is further submitted that it was not possible for the members of the police party to hear the conversation of the accused persons from a distance of about ten feet. It is further submitted that there was no occasion for the accused to talk in such a loud voice that it could be heard at such a distance. It is further submitted that different witnesses have given contradictory version of the incident. It is further submitted that prosecution has miserably failed to prove any case against the accused and they may be acquitted. My attention has been invited to an authority reported as Chhotey (D) and Others Vs. State of UP, 2003 SCC OnLine All 1719.
12. PW 4 HC Pramod Kumar and PW 7 retired SI Om ___________________________________________________________________________ State Vs. Mohd. Shahid and Another FIR No. 206/2009, PS: Vasant Kunj (N) Page 6 of 16 Prakash are the material witnesses about the purpose for which these accused had assembled in the park. The prosecution has to prove that the accused had assembled for the purposes of committing dacoity and had made preparation to that end. In order to prove this, the deposition of these two witnesses has been referred to. However, none of them have deposed as to what exactly these accused were talking about and what were their exact words. PW 4 has deposed that all the six accused were discussing plan to commit dacoity in DDA Flats, Vasant Kunj. PW 7 has not stated as to what was their discussion about, what to talk of the exact words. Both the witnesses have referred to the conversation only in general terms. Furthermore, it is not possible for all the six persons to speak at the same time and to make sense of the conversation to be meaningful to a stranger. As such, there is no specific material on record to indicate that the accused were discussing about their purpose of committing dacoity, when they had assembled in the Biodiversity Park.
13. Furthermore, both PW 4 HC Pramod and PW 7 retired SI Om Prakash have deposed that they heard the conversation from about a distance of about 1015 feet. In my humble view, it is not possible to hear the conversation regarding a plan to commit dacoity from such a distance nor there was any occasion for the accused to talk in such a loud voice that they could be heard at a distance of about 1015 feet. Thus, the version of these two ___________________________________________________________________________ State Vs. Mohd. Shahid and Another FIR No. 206/2009, PS: Vasant Kunj (N) Page 7 of 16 witnesses does not inspire confidence.
Legal Provisions and Case Law
14. Section 399 IPC reads as follows:
"Whoever makes, any preparation for committing dacoity, shall be punished with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine."
Similarly, Section 402 IPC reads as follows:
"Whoever, at any time after the passing of this Act, shall be one of five or more persons assembled for the purpose of committing dacoity, shall be punished with rigorous imprisonment for a term which may extend to seven years, and shall also be liable to fine."
In an authority reported as Suleman and Another Vs. State of Delhi , (19 99 ) 4 SCC 146 , Hon'ble Supreme Court, while dealing with the charge of Section 399/402 IPC, observed in paragraph 4 as under:
"........To prove why the five accused had assembled at the Dharamshala of Sarup Nagar, the prosecution had mainly relied upon the evidence of PW 2 who was the only witness who had gone near the Dharamshala and heard conversation amongst the accused. He was accompanied at that time by ASI Bhagat Ram but the prosecution did not examine ASI Bhagat Ram as a witness. PW 2 Head ___________________________________________________________________________ State Vs. Mohd. Shahid and Another FIR No. 206/2009, PS: Vasant Kunj (N) Page 8 of 16 Constable Chand Singh in his examinationin chief did not depose anything about the conversation. He was declared hostile and permitted to be crossexamined by the learned Public Prosecutor. In crossexamination, he stated that the conversation which he had heard and reported to SubInspector Om Prakash was about looting a petrol pump. According to this witness, he had remained near the Dharamshala for about 15 minutes. His further crossexamination on behalf of the accused discloses that when he had gone near the Dharamshala, it was dark as there was no light either inside or nearby. The Dharamshala consisted of only one room and it had only one door and no window. He had stood outside that room and a little away from the door. He had not told anything more than that five persons inside the Dharamshala were planning to rob a petrol pump that night. He had not narrated what they had spoken or discussed. It is also doubtful that they were speaking so loudly that their conversation could be heard outside. It is also surprising as to how he could have reported to SI Om Prakash that two of them had pistols and the remaining three had knives. As the evidence discloses, the weapons were kept concealed on their persons and there was complete darkness inside the room. PW 2 had not even gone near the door. This would clearly indicate that PW 2 was not telling the truth when he stated that he had heard the accused talking about looting a petrol pump. It is, therefore, not possible to sustain the conviction of the appellants under ___________________________________________________________________________ State Vs. Mohd. Shahid and Another FIR No. 206/2009, PS: Vasant Kunj (N) Page 9 of 16 Sections 399 and 402 IPC. Their conviction under Sections 399 and 402 IPC will have to be set aside........."
Conclusion
15. In view of the fact that the evidence about the conversation amongst the accused is doubtful and its being heard by the police officials is also equally doubtful, the purpose of the assembly of the accused persons on the spot has not been proved beyond reasonable doubt. The accused might have assembled for any other purpose also. In view of this, prosecution has miserably failed to prove its case against the accused under Section 399/402 IPC.
16. However, all the witnesses have deposed that buttondar knife, Ex P1, was recovered from accused Mohd. Shahid and buttondar knife, Ex P3, was recovered from accused Mohd. Shakib. In the crossexamination of these witnesses, there is nothing of any significance which could discredit the recovery of buttondar knives from these two accused. Thus, the two accused had kept buttondar knives in their possession in violation of Section 25 Arms Act read with Notification dated 17.02.1979 bearing No. 13/203/78/ Home (General) issued by Delhi Administration, a copy of which is on record. Accordingly, the prosecution has been successful in proving its case under Section 25 Arms Act against both accused, that is, Mohd. Shahid and Mohd. Shakib. Accordingly, I hold them guilty ___________________________________________________________________________ State Vs. Mohd. Shahid and Another FIR No. 206/2009, PS: Vasant Kunj (N) Page 10 of 16 under Section 25 Arms Act and they are convicted accordingly.
17. Let them be heard on the point of sentence.
Announced in open Court (O. P. Saini)
today on 15.09.2018 Addl. Sessions Judge/
Spl. Judge (CBI04)
New Delhi
___________________________________________________________________________ State Vs. Mohd. Shahid and Another FIR No. 206/2009, PS: Vasant Kunj (N) Page 11 of 16 IN THE COURT OF O. P. SAINI: ADDL. SESSIONS JUDGE/SPL. JUDGE (CBI04), PATIALA HOUSE COURT, NEW DELHI SC No. 18/2018 State Vs. Mohd. Shahid and Another FIR No. 206/2009 U/s: 399/402 IPC and 25 Arms Act PS: Vasant Kunj (North) 15.09.2018 Present: Sh. Pradeep Kumar, Addl. PP for the State.
Sh. Dinesh Prasad Pandey, Advocate for both accused, that is, Mohd. Shahid and Mohd. Shakib.
ORDER ON SENTENCE Vide my separate judgment dated today, both accused Mohd. Shahid and Mohd. Shakib have been convicted under Section 25 Arms Act on the allegations that on 30.05.2009, they were found in possession of a buttondar knife each, in Biodiversity Park, in the area of Police Station Vasant Kunj (North) in violation of the Notification issued under the above said Section by Delhi Administration.
2. I have heard the arguments at the bar and have carefully gone through the file.
3. It is submitted by learned Addl. PP that the convicts were found in possession of buttondar knives in violation of law ___________________________________________________________________________ State Vs. Mohd. Shahid and Another FIR No. 206/2009, PS: Vasant Kunj (N) Page 12 of 16 and they may be severely punished for that offence.
4. On the other hand, it is submitted by learned defence counsel for the convicts that they belong to poor families. It is further submitted that both belong to working class and have large family to support. It is further submitted that both remained in custody for more than six months during investigation and trial of the case. It is submitted that a lenient view may kindly be taken and they may be sentenced to the imprisonment already undergone by them.
5. In an authority reported as B. G. Goswami Vs. Delhi Administration, (1974) 3 SCC 85, while dealing with the question of sentence, Hon'ble Supreme Court observed in paragraph 10 as under:
"........Now the question of sentence is always a difficult question, requiring as it does, proper adjustment and balancing of various considerations which weigh with a judicial mind in determining its appropriate quantum in a given case. The main purpose of the sentence broadly stated is that the accused must realise that he has committed an act which is not only harmful to the society of which he forms an integral part but is also harmful to his own future, both as an individual and as a member of the society. Punishment is designed to protect society by deterring potential offenders as also by preventing the guilty party from repeating the offence; it is also designed to reform the ___________________________________________________________________________ State Vs. Mohd. Shahid and Another FIR No. 206/2009, PS: Vasant Kunj (N) Page 13 of 16 offender and reclaim him as a law abiding citizen for the good of the society as a whole. Reformatory, deterrent and punitive aspects of punishment thus play their due part in judicial thinking while determining this question. In modern civilized societies, however, reformatory aspect is being given somewhat greater importance. Too lenient as well as too harsh sentence both lose their efficaciousness. One does not deter and the other may frustrate, thereby making the offender a hardened criminal........"
Similarly, in an another authority reported as State of U. P. Vs Sattan @ Satyendra & Ors, 2009 III AD (SC) 492, Hon'ble Supreme Court, while dealing with the question of punishment, observed in para 14 as under:
"Proportion between crime and punishment is a goal respected in principle, and in spite of errant notions, it remains a strong influence in the determination of sentences. The practice of punishing all serious crimes with equal severity is now unknown in civilized societies, but such a radical departure from the principle of proportionality has disappeared from the law only in recent times. Even now for a single grave infraction drastic sentences are imposed. Anything less than a penalty of greatest severity for any serious crime is thought then to be a measure of toleration that is unwarranted and unwise. But, in fact, quite apart from those considerations that ___________________________________________________________________________ State Vs. Mohd. Shahid and Another FIR No. 206/2009, PS: Vasant Kunj (N) Page 14 of 16 make punishment unjustifiable when it is out of proportion to the crime, uniformly disproportionate punishment has some very undesirable practical consequences".
(All underlinings by me for supplying emphasis).
6. In the instant case, as per record, convict Mohd. Shahid remained in custody for eight months and fourteen days, and convict Mohd. Shakib remained in custody for ten months and thirteen days, during investigation and trial.
7. In view of the submission made by learned defence counsel, I am inclined to take a lenient view and sentence both the convicts to the period already undergone by them in custody.
8. A copy of the judgment and order on sentence be given to the convicts free of cost immediately.
9. Case property is forfeited to the State to be disposed of after the time of appeal is over.
10. Since both convicts are on bail, their bail bonds are cancelled and sureties are discharged. Endorsement, if any, on the documents be cancelled and the documents be returned to the sureties against proper signatures and verification.
11. Both convicts are directed to furnish a personal bond in the sum of Rs.10,000/ to appear before Hon'ble Appellate Court, as and when they receive notice of the appeal, as per the provisions of Section 437A CrPC.
___________________________________________________________________________ State Vs. Mohd. Shahid and Another FIR No. 206/2009, PS: Vasant Kunj (N) Page 15 of 16
12. Personal bond furnished and accepted under Section 437A CrPC.
13. File be consigned to Record Room.
Announced in open Court (O. P. Saini)
today on 15.09.2018 Addl. Sessions Judge/
Spl. Judge (CBI04)
New Delhi
___________________________________________________________________________ State Vs. Mohd. Shahid and Another FIR No. 206/2009, PS: Vasant Kunj (N) Page 16 of 16