Delhi District Court
Singh vs . State Of Haryana, Air 1995, Sc 2339, It ... on 7 April, 2011
IN THE COURT OF SH RAJ PAUL SINGH TEJI:ADDL.SESSIONS
JUDGE(FAST TRACK COURT) NORTHEAST: KARKARDOOMA
COURTS:SHAHDRA:DELHI
SC No. 68/06
Case ID 02402R0372732004
State
Vs
1. Sikander Ahmad S/o Akbar Khan
R/o House No. 4149, Urdu Bazar Katra,
Nizamuddin, Jama Masjid, Delhi
2. Danish @ Asgar Danish S/o Mansoor Alam
R/o Q5, Hari Masjid, Batla House, Okhla,
Delhi.
3. Yameen @ Aabid S/o Late Mohd. Haroon
R/o House No. 1352, Pahari Imli, Chandni Mahal
Delhi.
4. Deepak S/o Sh Baleshwar
R/o 12/31, Saket, Mandawali, Delhi
5. Sakeel @ Akeel S/o Saleem (expired on 15.06.2010)
R/o E66, Guru Angal Nagar, Delhi
6. Aaseem Ali S/o Manjoor Ali
R/o R135, Batla House, Okhla, Delhi
7. Asif Malik S/o Allah Diya
R/o 39, Gali No.4,Aaram Park, Khureji Khas,
Delhi
8. Aabid S/o Fareed Ahmad
R/o E40/2, East Guru Angad Nagar,
Preet Vihar, Delhi
9. Asfaq Rizvi S/o Jabbar Rizvi
R/o F43, Muradi Road, Batla House,
Okhla, Delhi
SC No.68/06 Page No.1/18
FIR No. 166/04
P.S Khajuri Khas
U/s 399/402/186/353/307/411/34 IPC and 25 Arms Act
Date of institution : 15.02.2006
Argument heard on : 11.03.2011 & 22.03.2011
Order pronounced on : 07.04.2011
J U D G E M E N T
1. The brief facts of this case are that on 26.04.2004 Ct. Pradeep Kumar gave an information to SI Narender Kumar that 7/8 badmash of Ashfaq Rizvi gang would assemble at Main Wazirabad Road near Pipe Line Khajoori Khas for making planning to commit dacoity and if raid is conducted, they can be apprehended and weapons can be recovered from them. SI brought the information into the notice of Incharge, Special Staff, NorthEast who gave the directions for conducting the raid. Thereafter a raiding party consisting of ASI Jalbir Singh, HC Jagbir, Ct. Pradeep, HC Shahid, HC Sohanbir, Ct. Ramvir, Ct. Hem Praksh, Ct. Pradeep Premi and Ct. Jai Karan etc. and they all proceeded to the spot in official vehicle which was driven by Ct. Dhan Raj. At about 1.30 pm they reached at Khajoori Chowk where secret informer met them and he was also joined in the raiding party. SI Narender asked 4/5 passersby to join the raiding party but none of them agreed and they all left without disclosing their names and addresses. They parked their vehicle near Gurudwara Nanaksar, Wazirabad Road. ASI Jalbir and Ct. Pradeep were directed to accompany the secret informer SC No.68/06 Page No.2/18 and to hear the conversation of those persons who were sitting behind the wall. They were also directed to give signal by putting their hands on their head. After the departure of ASI Jalbir and Ct. Pradeep, SI Narender and other members of the raiding party took their positions in different directions. SI Narender also noticed that two scooter and one motorcycle was parked near the Pipe Line and on the other side of the wall, 7/8 persons were found sitting there and they were talking to each other. In the meantime ASI Jalbir and Ct. Pradeep reached near the wall after concealing their presence and tried to overhear the conversation of those persons. After sometime, ASI Jalbir gave the pre requisite signal and members of raiding party proceeded towards those persons to overpower them. In the meantime, two of the accused persons fired upon the police party. SI Narender also fired twice towards them. At about 2.30 p.m. all the eight persons were overpowered by the members of the raiding party. SI Narender apprehended Ashfaq Rizvi on whose possession one loaded country made pistol and two live cartridges were recovered from the right side pocket of the pant. Pistol was unloaded and sketch of pistol as well as of cartridges were prepared. Thereafter pistol and cartridges were kept in a cloth pullanda and the same was sealed with the seal of NK. Accused Aasim @ Pappu was apprehended by HC Harpal and from his possession one country made pistol, one live cartridge and one used cartridge was recovered. HC Jagbir Singh apprehended accused Shakeel @ Akil and one country made pistol as well as one live & one SC No.68/06 Page No.3/18 used cartridges was recovered from his possession. Accused Deepak was apprehended by Ct. Jai Karan and from whose possession a buttondar knife was recovered. Ct. Ramvir apprehended accused Asif Malik and from his possession a buttondar knife was recovered. Accused Abid was apprehended by Ct. Hem Prakash and a buttondar knife was recovered from his possession. HC Shahid apprehended accused Sikander @ Ahmed Sikander and a buttondar knife was also recovered from his possession. HC Sohanbir apprehended accused Danish and from his possession a buttondar knife was recovered. All the weapons recovered from the accused persons were sealed separately and were taken into possession. Form CFSL was filled in at the spot. Thereafter SI Narender enquired from ASI Jalbir who confirmed that accused persons were planning to commit dacoity. Thereafter SI prepared a rukka and a case U/s 399/402/186/353/307/34 IPC & 25 Arms Act was got registered. Accused Yameen was arrested from Pahari Imli, Chandani Mahal from whose possession a stolen mobile given by accused Ashfaq Rizvi, was recovered. During investigation, I.O. prepared the site plan, recorded the statement of witnesses and arrested the accused persons. After completion of investigation, chargesheet was filed against the accused persons before the concerned court of Ld. M.M. Since the offence committed by accused persons was exclusively triable by the court of Sessions, Ld. M.M. committed the case to the court of Ld. District & Sessions Judge. Thereafter this case was assigned to this court for trial.
SC No.68/06 Page No.4/18
2. After hearing the arguments of both the parties, a primafacie charge charge U/s 307/34 IPC and charge U/s 186/353/399/402 was served upon all the accused persons except accused Yameen to which they pleaded not guilty and claimed trial. A primafacie charge U/s 25 Arms Act was also served upon accused persons namely Sikander Ahmed, Danish @ Asgar Danish, Deepak @ Ajay, Sakeel @ Akeel, Aaseem Ali, Asif Malik @ Pappu, Abid @ Amit & Ashfaq Rizvi to which they pleaded not guilty and claimed trial. A primafacie charge U/s 411 IPC was also served upon accused Yameen @ Abid to which he pleaded not guilty and claimed trial.
3. Prosecution in support of its case has examined as many as 15 witnesses.
4. PW 1 is ASI Jalbir Singh who was deputed to hear the conversation of accused persons. He has deposed that on 26.04.2004 Ct. Pradeep Kumar received a secret information who brought the same into the notice of SI Narender Kumar. He has further deposed that SI Narender apprised the Inspector Incharge, NorthEast about the secret informatin who had ordered to conduct the raid. He has further deposed that information was reduced into writing vide DD No.5 and thereafter SI Narender organised a raiding party consisting of himself, HC Harpal Singh, Surender Singh, Jagbir Singh, Shahid, Ct. Hem Prakash, HC Sohanvir, Ct. Pradeep and Ct. Ramvir. They all left the office in a Govt. vehicle alongwith driver Dhanraj. He has further deposed that they reached at Khajoori Khas at about 1.30 p.m. where secret informer met them. He SC No.68/06 Page No.5/18 has further deposed that SI Narender asked 4/5 passersby to join the raiding party but none of them agreed. He has further deposed that thereafter they reached 'T Point" Nanaksar Gurudwara where they had parked the official vehicle i.e. Tata 407. This witness as well as Ct. Pradeep Kumar were sent alongwith the informer to hear the conversation of those persons in order to verify the facts. They were also directed to give the signal by putting their hands on their head after hearing the conversation of those persons. He has further deposed that thereafter they came to the pipeline near the park and found that eight persons were found sitting there. Two scooters and one motorcycle were also found parked there near the park. He has further deposed that when they reached to hear the conversation of those persons, they saw that Ashfaq Rizvi whose name was revealed later on, was giving instructions to his associates by saying that two persons would go on motorcycle and a group of three persons each would go on two wheeler scooters and they will ransack the cash from the cashier of wine shop which is situated at Shahdarpur Chowk. He has further deposed that after hearing the conversation of those persons, he gave the prerequisite signal to SI Narender Kumar. All the members of the raiding party surrounded the persons who were sitting in the park and were planning to commit the dacoity. He has further deposed that out of those persons, two had fired upon the police party. He has further deposed that in reply SI Narender had also fired from his service revolver. He has further deposed that after the firing, those persons had started running SC No.68/06 Page No.6/18 here and there. He has further deposed that at about 2.30 p.m. all the eight persons were apprehended by the police party. He has further deposed that accused Ashfaq Rizvi was apprehended by SI Narender Kumar and from his search, a loaded katta and two live cartridges were recovered from the right side pocket of his pant. Sketch of katta and cartridges which is ex. PW 1/A was prepared which bears his signature at point A. He has further deposed that accused Aasim @ Pappu was apprehended by HC Jagbir Singh and from his possession one countrymade pistol and one live cartridge as well as one dead cartridge were recovered. Sketch of pistol and cartridges was prepared vide memo ex. PW 1/B which bears his signature at point A. He has further deposed that HC Jagbir Singh overpowered accused Asif. He has further testified that HC Harpal cought hold of accused Mohd. Akil from whose possession a country made pistol was recovered. He has further deposed that HC Shahid apprehended accused Sikander from whose possession a knife was recovered. He has further deposed that Ct. Jai Karan apprehended accused Deepak from whose possession a knife was recovered. He has further deposed that HC Sohanvir also overpowered one of the accused from whose possession a knife was recovered. He has further deposed that eight persons were arrested at the spot and one accused namely Abid was arrested later on from near Jama Masjid. He has further deposed that total three countrymade pistols and five buttondar knives were recovered from accused persons. He has further deposed that sketches of recovered weapons were SC No.68/06 Page No.7/18 prepared which are ex.PW 1/A to PW 1/H and bears his signature at point A. He has further deposed that all these weapons were sealed in eight separate pullandas with the seal of NK and were seized vide memo ex. PW 1/I which bears his signature at point A. He has further deposed that Ct. Pradeep was sent to police station for getting the case registered. He has further deposed that two scooters and one motorcycle which were found parked there, were seized vide memo ex. PW 1/L . He has further deposed that all the accused persons were arrested vide memos ex. PW 1/K to PW 1/S and their personal search was taken vide memos ex. PW 1/K 1 to PW 1/S1. He has identified the accused persons present in the court.
5. PW 2 HC Harpal is again a member of the raiding party who has deposed on the lines of PW 1.
6. PW 3 SI Narender is the I.O. who too has deposed on the lines of PW 1& 2.
7. PW 4 Ct. Ramveer Singh is also one of the members of the raiding party who has also deposed on the lines PW 1, PW 2 & PW 3. He has deposed that he had apprehended accused Asif Malik from whose possession a buttondar knife was recovered from the right side pocket of his pant.
8. PW 5 Ct. Dinesh is also the member of the raiding party who has deposes on the lines of PW 1,2,3 & 4. He has further deposed that on 27.04.2004 accused Ashfaq Rizvi and Danish led them to the house of accused Yamin situated at Pahari Imli, Chandni Chowk. He has further SC No.68/06 Page No.8/18 deposed that accused Yamin was interrogated who made a disclosure statement ex.PW 5/G and also produced one mobile make NOKIA 3100 which was seized vide memo ex. PW 5/H.
9. PW 6 is Ct. Hem Prakash who apprehended accused Abid from whose possession a buttondar knife was recovered. He has identified the accused Abid as well as knife recovered from his possession which is ex. PW 6/1.
10. PW 7 ASI Shahid Ali is also one of the members of the raiding party who apprehended accused Sikander Ahmed. He has further deposed that he took his personal search upon which one buttondar knife was recovered from the right side pocket of his pant. He has identified the knife ex. PW 7/1 to be the same which was recovered from accused Sikander. However, this witness could not identify accused Sikander and identified Asim as Sikander. In a leading question put to the witness by Ld. APP after seeking permission from the court, this witness had replied that due to lapse of time, he could not identify the accused Sikander.
11. PW 8 HC Jagbir Singh is also one of the members of the raiding party who apprehended accused Akil @ Shakeel. He took his search upon which one katta and one live cartridge was recovered from his possession. He has identified the accused Akil as well as katta and cartridges recovered from his possession.
12. PW 9 HC Sohanbir is also one of the members of the raiding party who apprehended accused Danish. He has further deposed that he conducted SC No.68/06 Page No.9/18 his personal search and a buttondar knife was recovered.
13. PW 10 SI Ram Manohar is a duty officer who recorded FIR No. 166/04 and proved the carbon copy of the same which is ex. PW 10/A and bears his signature at point A. He has also proved his endorsement on the rukka which is ex. PW 10/B.
14. PW 11 is ASI Surender Pandey who partly investigated the case. He got deposited the case property in CFSL, Chandigarh through Ct. Netrapal. He obtained the ballistic expert report and filed the charge sheet against the accused persons.
15. PW 12 Ct. Netra Pal is a formal witness who took the case property to CFSL , Chandigarh and deposited the same there. He has further deposed that so long as the case property remained in his custody, it was not tampered with.
16. PW 13 Bhanu Pratap Singh, the then Junior Scientific Officer(Ballistics) has deposed that on 10.6.2004 three sealed parcels were received for ballistic examination through Ct. Netra Pal Singh which were containing pistols and cartridges. He examined the pistols, cartridges and proved his report ex. PW 13/A which bears his signature at point A.
17. PW 14 HC Yash Pal is a MHC(M) with whom the case property was deposited regarding which he made the entry in register No. 19 at Sl. No. 1107. He has further deposed that SI Dinesh Dahiya also deposited two scooter, one motor cycle, personal search articles of accused persons, one mobile phone and one suit case in the malkhana. He has SC No.68/06 Page No.10/18 further deposed that on 9.6.2004 Ct. Netra Pal took the pullandas of countrymade pistol in sealed condition to CFSL vide RC No. 180/21. He has proved the true extracts of the relevant entries as ex. PW 14/A and PW 14/B.
18. PW 15 Sh H.P.S.Cheema, the then ACP, Seelam Pur who had given the sanction U/s 195 Cr.P.C. for prosecution of accused persons. He has proved the copy of the complaint as ex. PW 15/A which bears his signature at point A & B.
19. Thereafter statement of accused persons U/s 313 Cr.P.C. were recorded wherein they have denied the allegations against them and stated that they are innocent and have been falsely implicated in the present case. Accused Sikander Khan & Danish have stated that they were lifted by the police outside from their house and were detained illegally and thereafter he was implicated in this case falsely. They have further stated that nothing was recovered from their possession. Accused Yamin & Asim have taken a plea that they had gone to attend a marriage function at Jafrabad where a quarrel took place with one person who was a police official in civil dress. They have further stated that they were taken to Welcome Police station where they were detained for two days and thereafter they were falsely implicated in this case. They have further stated that nothing was recovered from their possession or at their instance. Accused Deepak has taken a plea that he was lifted from his house for the purpose of investigation and thereafter he was implicated in this falsely. He has further stated that he had not given SC No.68/06 Page No.11/18 any disclosure statement. He has further stated that nothing was recovered from his possession and the alleged recoveries have been planted by the police. Accused Abid and Asif Malik have stated that they were lifted by the police from Golcha Cinema, Dariyaganj and were detained for two days in illegal custody and thereafter they were falsely implicated in this case. Accused Ashfaq Rizvi has taken a plea that he was lifted from his house and was detained illegally for three days in the police station. He has further stated that thereafter he was implicated in this case falsely. Accused Shakeel has taken a plea that he was lifted by the police from Laxmi Nagar near Walia Nursing Home while he was driving the TSR. He has further stated that he was detained illegally for two days in Police Station Seelam Pur and lateron he was implicated in this case. He has further stated that nothing was recovered from his possession and that police had obtained his signatures on blank papers which was later on used by the police. Accused persons did not lead any evidence in their defence.
20. During the trial, accused Shakeel expired and proceedings against him were dropped vide order dt. 25.10.2010.
21. I have heard Ld. Counsels for accused persons as well as Ld.APP for the State and carefully perused the material available on record.
22. Ld. Counsels for accused persons have submitted that entire prosecution case is false & concocted one. Ld. Counsels for accused persons have submitted that accused persons were not arrested in the manner as shown by the police. Ld. Counsels for accused persons have SC No.68/06 Page No.12/18 argued that accused persons were lifted from different places and were detained illegally and thereafter they were falsely implicated in the present case. Ld. Counsels for accused persons have further submitted that all the witnesses examined in this case are police officials and thus are interested witnesses hence no reliance should be placed on their testimonies. Ld. Counsels for accused persons have further submitted that no offence U/s 307 IPC is made out against the accused persons as none of the witnesses has stated as to which of the accused had fired upon the police party. Ld. Counsel for accused persons have further argued that no empty cartridges or pellets were seized by the police which create serious doubt with regard to the alleged firing upon the police party. Ld. Counsels for accused persons have further argued that sanction U/s 39 Arms Act for the prosecution of accused persons under Arms Act was neither obtained nor the same has been proved on record. Ld. Counsel for accused persons have further submitted that there are material discrepancies in the testimonies of witnesses which go to the root of the case and create serious doubt in the prosecution case. Ld. Counsels for the accused persons have further submitted that nothing was recovered from the possession of accused persons and the alleged recoveries are planted one. Ld. Counsel for accused persons has further submitted that I.O. had received the secret information well in advance but despite that no public witness joined by the I.O. for the reasons best known to him. On these grounds, it is prayed that accused persons are liable to be acquitted.
SC No.68/06 Page No.13/18
23. On the other hand Ld. APP has submitted that prosecution has successfully proved its case against the accused persons hence they are liable to be convicted. He has submitted that there is no law that conviction cannot be based on the testimonies of police officials provided the same inspire confidence of the court. He has submitted that all the material witnesses have fully supported the case of prosecution and Ld. Counsels for accused persons have failed to shatter their testimonies despite lengthy crossexamination. He has further submitted that contradictions pointed out by Ld. Counsel for accused persons are minor in nature and bound to occur due to lapse of time and can be safely ignored.
24. It is the case of prosecution that accused persons had fired upon the police party and in reply SI Narender had also fired from his service revolver. None of the PWs has deposed as to which of the accused had fired upon the police party. None of the police officials had received any injuries. Even no empty cartridges or pellets have been seized by the police which creates serious doubt in the prosecution case.
25. It is the case of prosecution that secret information was received by Ct.Pradeep at about 12.30 p.m. to the effect that 7/8 badmash of Ashfaq Rizvi would assemble at Main Wazirabad Road near Pipe Line Khajoori Khas for making preparations to commit dacoity. A raiding party was organized by SI Narender. ASI Jalbir & Ct. Pradeep were deputed to hear the conversation of accused persons. It is highly improbable that accused persons were planning to commit dacoity from SC No.68/06 Page No.14/18 the time of receiving the secret information and till the time ASI Jalbir and Ct. Pradeep were deputed to hear the conversation of accused persons and that too in an open place. I agree with the contention of Ld. Counsel for accused persons that if accused persons had any intention or plan of committing dacoity, they could have done the same within the four walls of house and not at a deserted place.
26. It is also admitted case of the prosecution that Ct. Pradeep had received the alleged secret information well in advance before departure of police party from Special staff office but despite that no public witness was joined in the proceedings. Further, the proceedings of the police party were continued till midnight but despite all that police party could not manage any independent witness from the spot despite the fact that there was a Gurudwara & thoroughfare nearby. In my view, nonjoining of public witnesses at the time of forming the raiding party and at the time of apprehension of accused persons as well as at the time of alleged recoveries cast a serious doubt in the prosecution story. In Megha Singh Vs. State of Haryana, AIR 1995, SC 2339, it was observed by the Hon'ble Supreme Court that absence of a public witness under such circumstances creates doubt on the veracity of the prosecution case.
27. It has also come in the testimonies of police officials that they did not offer their searches to accused persons before searching them. Section 51 of Cr.P.C. states as to how the search of an arrested person would be taken by the police officials. The Hon'ble Supreme Court in various SC No.68/06 Page No.15/18 judgments e.g. State of Bihar Vs Kapil Singh, AIR 1969 SC 53, Rabindernath Vs State of Orissa, 1984 Crl. L. J 1392 and Balwant Singh Vs State of Punjab, Air 1995 Supreme Court 1785 has laid down that before searching a person, the searching police officer and his companions should give their personal search to the accused . This directive of the Hon'ble Supreme Court is to ensure the fair play at the time of search of helpless accused in the hands of mighty police officials. In the present case, no such precaution was taken by police officials which leaves a room for the doubt in the circumstances of alleged seizure of arms.
28. Further there are material discrepancies in the testimonies of prosecution witnesses which too create serious doubt in the case of prosecution. PW 1 ASI Jalbir Singh in his examination in chief has stated that two persons had fired upon the police party whereas in his crossexamination he has stated that he cannot say who from accused persons had fired upon the police party. It is the case of prosecution that SI Narender Singh had fired upon the accused persons whereas PW 1 in his crossexamination has stated that he does not know whether SI Narender had also fired upon any accused. Further there are contradictions in the testimonies of witnesses regarding the source of light in which all the writing work/memo etc. were prepared. PW 1 ASI Jalbir Singh has stated in his crossexamination that writing work was completed in road light whereas PW 2 HC Harpal has contradicted him SC No.68/06 Page No.16/18 by stating that writing work was done in the light of their official vehicle. PW 4 Ct. Rambir has stated that the writing work was done in the light of candle. PW 5 SI Dinesh Dahiya has stated the writing work was done with the help of street light and electric pole was at a distance of 25 meter from the place where accused was sitting and the accused persons were taken near that pole and documents were prepared. PW7 ASI Shahid Ali has stated that the writing work was done with the help of bulb of an electric pole. Further PW 1 has stated in his cross examination that there were several trees and bushes on the ground whereas PW 8 HC Jagbeer Singh has stated in his crossexamination that there was no tree at the spot. Further PW 1 ASI Jalbir Singh in his crossexamination has stated that secret information was received at 1.00 p.m. whereas PW 2 HC Harpal in his crossexamination has stated that SI Narender had asked him to join the proceedings at about 12.00/12.30 p.m. There are also contradictions in the testimonies of witnesses regarding the height of pipeline. Further I would like to mention here that PW 7 ASI Shahid Ali has identified Asim as Sikander . All these discrepancies which have crept in the testimonies of prosecution witness clearly suggest that either they were not present at the spot together at one point of time or that no proceedings took place in their presence & the case of prosecution is concocted one.
29. So far as the charge U/s 411 IPC against accused Yameen @ Abid is concerned, it is the case of prosecution that he was found in possession of one stolen mobile phone. There is nothing on record to prove that SC No.68/06 Page No.17/18 alleged recovered mobile was in fact stolen one or possession thereof has been transferred by theft or robbery. Hence, no offence U/s 411 IPC is made out against the accused Yameen.
30. Considering the totality of the circumstances, I am of the view that case of prosecution is not free from doubt. It is the duty of prosecution to prove its case beyond reasonable doubt. Hence, giving benefit of doubt, all the accused persons are acquitted of the offence charged with. Accused Deepak & Ashfaq Rizvi be released forthwith if not required in any other case. B/Bs of remaining accused persons stand cancelled and their sureties discharged. File be consigned to R/R. Announced in Open Court (RAJ PAUL SINGH TEJI) on 07.04.2011 ADDL.SESSIONS JUDGE(FTC) KARKARDOOMA COURTS:SHAHDRA SC No.68/06 Page No.18/18