Delhi District Court
The State vs Amir Khan @ Lambu S/O Fajlurehman P.O on 18 April, 2011
1
IN THE COURT OF SH. GURDEEP SINGH
ADDL. SESSION JUDGE-04, NORTH-EAST DISTRICT
KARKARDOOMA COURTS, DELHI.
FIR No. : 553/2005
PS : Shahdara
U/s : 399/402/186/307/353 IPC & 25 Arms Act
Unique Case ID : 02402R0 075382006
In the matter of
The State
Versus
1. Amir Khan @ Lambu S/o Fajlurehman P.O.
R/o House of Lala, Katwaria Sarai
Delhi
2. Md. Salim s/o Sh. Faizal P.O.
R/o : Jhuggi Bhogal Jangpura
Nizamuddin, Delhi
3. Md. Yusuf s/o Sh. Abdul Rashid Khan P.O.
R/o : Jhuggi No. 540, DVS Camp
Bhogal Jangpura, Nizamuddin
Delhi.
4. Md. Littan @ Gudu s/o Md. Sajid P.O.
R/o : Jhuggi No. 561, DVS Camp,
Bhogal Jangpura, Nizamuddin
Delhi.
5. Rafiqul @ Salim s/o Sh. Afjal P.O.
R/o House of Lala, Katwaria Sarai
Delhi.
6. Md. Sahid Khan s/o Md. H. Khan.
R/o House of Lala, Katwaria Sarai
Delhi
....ACCUSED
FIR No. : 553/2005, PS: Shahdara Page 1 of 16
2
Session Case No. : 59/10
Date of Institution : 26.07.2010
Date of reserving order/judgment : 18.04.2011
Date of pronouncement or order/judgment : 18.04.2011
JUDGEMENT
1. Above named accused persons were sent up for trial by police of police station Shahdara for offences punishable U/s 399/402/186/353/307 IPC and u/s 25/27 Arms Act on the allegation that on 21.11.2005 at the office of special staff Ct. Sanjeev informed SI Satender Mohan that secret informer came to the office of special staff and informed him that some criminals having illegal arms would gather at about 2:00 a.m. (mid night) at Tikona Park, Naveen Shahdara, Delhi for the purpose of planning to commit dacoity and he himself affirmed the secret information from the informer and after satisfying himself he conveyed the information to ACP/Shahdara who directed him to take immediate action in accordance with law. Accordingly, he formed raiding party consisting of staff i.e. SI Pramod Anand, HC Amar Singh, HC Ram Kishan, HC Rishipal, Ct. Sanjeev, Ct. Karambir, Ct. Ranbir, Ct. Virender, Ct. Yogender, Ct. Omender and Ct. Mukesh and proceeded to the spot. In pursuance to this secret information six accused persons were apprehended while planning to commit dacoity and were also found in possession of illegal arms. Accused Amir @ Lambu had also shot at upon the raiding party in order to escape and in retaliation SI Satender Mohan had also fired on air. After the completion of the investigation, the chargesheet was filed FIR No. : 553/2005, PS: Shahdara Page 2 of 16 3 against accused persons for offence punishable u/s 399/402/186/307/353 IPC and u/s 25/27 Arms Act.
2. After supplying the necessary copies, the case was committed to court of session by Ld. MM vide order dated 2.2.2006.
3. My Ld. Predecessor, after finding prima-facie offence, charged the accused persons namely Amir Khan @ Lambu, Rafiqul @ salim, Sahid Khan, Mohd. Yusuf, Mohd. Salim and Littan @ Guddu for offences punishable u/s 399/409 IPC vide order dated 20.2.2006 to which they pleaded not guilty and claimed trial. Accused Amir Khan @ Lambu was also charged for offences punishable u/s 186 IPC, 353 IPC and 307 IPC to which he also pleaded not guilty and claimed trial. Accused persons namely Rafiqul @ salim, Sahid Khan, Mohd. Yusuf and Littan @ Guddu were also charged for offence punishable u/s 25 Arms Act and accused Salim was also separately charged for offence punishable u/s 25 Arms Act to which they pleaded not guilty and claimed trial.
4. During the trial of case all accused persons absconded and were declared proclaimed offender and vide order dated 15.2.2010 the file was consigned to record room with the direction to be revived again after the arrest of the accused persons. Subsequent to the order, accused Sahid, who was declared PO vide order dated 2.12.2008, was arrested and supplementary chargesheet filed against him.
5. Prosecution in support of their case examined as FIR No. : 553/2005, PS: Shahdara Page 3 of 16 4 many as 8 witnesses.
6. Prosecution examined the following material witnesses.
i) PW-4 HC Rishi Pal is the member of raiding party and shadow witness who overheard the conversation of the accused persons and gave pre-decided signal i.e. lighting the match stick to apprehend them and he alongwith Ct. Karamveer apprehended accused Shahid Khan who was found in possession of knife. He proved sketch of knife as Ex.PW-4/A and its seizure memo as Ex.PW-4/B in addition to other memos. He also identified the knife as Ex.PW-4/Article-1.
ii) PW-5 Ct. Karamvir is also the member of raiding party who alongwith PW-4 HC Rishipal apprehended accused Shahid Khan who was found in possession of knife and he also identified the knife.
iii)PW-7 Ct. Sanjeev is also the member of the raiding party who firstly received the secret information and conveyed the same to SI Satender Mohan and with the help of SI Pramod Anand apprehended accused Salim (PO) who was found in possession of country made pistol containing live cartridge and got lodged the FIR.
He proved the sketch of country made pistol as Ex.PW-7/A and Ex.PW-7/B in addition to other memos and identified the country made pistol and one fired cartridge as Ex.PW-7/Article-1.
FIR No. : 553/2005, PS: Shahdara Page 4 of 165
iv)PW-8 Insp. Satender Mohan is the first investigating officer who conducted raid and with the help of Ct. Virender apprehended accused Amir Khan @ Lambu (PO) who in order to escape fired upon Ct. Virender. He proved sketch memo of country made pistol recovered from the possession of accused Amir @ Lambu and the memo of knife (each) recovered from the possession of accused Yusuf (PO), Rafikul (PO) and Littan (PO) as Ex.PW-8/A, PW-8/B, PW-8/C and PW-8/D and its seizure memo Ex.PW-8/E, PW-8/F, PW-8/G and PW-8/H respectively. He also proved sketch of empty case of cartridge as Ex.PW-8/I and its seizure memo as Ex.PW-8/E, rukka as Ex.PW-8/J in addition to other memos and identified the live cartridge and country made pistol as Ex.PW-8/Article-1 and Ex.PW-8/Article-5 recovered from the possession of accused Amir @ Lambu (PO), and the knife each recovered from the possession of Yusuf (PO), Rafikul (PO) and Littan (PO) as Ex.PW-8/Article-2, PW-8/Article-3 and PW-8/Article-4 respectively.
v) PW-1 SI Dinesh is the second investigating officer who conducted the proceedings after the apprehension of the accused persons. He proved site plan as Ex.PW-1/A, disclosure statements of accused Amir, Mohd. Yusuf, Salim, Mohd. Littan @ Guddu, Shahid Khan and Rafiqul as Ex.PW-1/B, PW-1/C, PW-1/D, PW-1/E, FIR No. : 553/2005, PS: Shahdara Page 5 of 16 6 PW-1/F and PW-1/G respectively and arrested them vide memos PW-1/H, PW-1/I, PW-1/J, PW-1/K, PW-1/L and PW-1/M respectively and took their personal search vide memos PW-1/R, PW-1/Q, PW-1/N, PW-1/P, PW-1/O, PW-1/S respectively. He also proved seizure memo of coins u/s 102 Cr.PC of country of Nepal, one dollar and two pence recovered from the possession of accused Saleem as memo Ex.PW-1/T. He further proved seizure memos of stolen mobile phone make Nokia as Ex.PW-1/U, stolen jewellery as Ex.PW-1/V and camera Ex.PW-1/W and seven implements of house breaking as Ex.PW-1/X from the house of Amir @ Lambu u/s 102 Cr.PC. He also proved FSL result as Ex.PW-1/Y.
vi)PW-3 HC Harinder is the witness of arrest and disclosure statements of the accused persons .
7. The prosecution also examined following formal witness :
i) PW-2 SI Sumer Singh was the duty officer who recorded formal FIR on the basis of rukka and proved the copy of FIR as Ex.PW-2/A and his endorsement on rukka as Ex.PW-2/B.
ii) PW-6 Ct. Rohtas is the witness who deposited the sealed parcels at FSL vide RC No. 10/21 after receivnig the same from the MHC(M).
8. Statement of accused Sahid recorded U/s 313 Cr.PC. He denied FIR No. : 553/2005, PS: Shahdara Page 6 of 16 7 the prosecution evidence and claimed innocence. He stated that witnesses are false and interested. He is innocent and police has planted the recovered articles on him. He was arrested by the police from Sadar Bazar where he was pushing the cart. He did not make any disclosure statement. He has been falsely implicated in this case. However, he chose not to lead evidence in his defence.
9. I have heard Sh. Virender Singh, Ld. Addl. PP for the state and Sh. K. K. Sharma, Advocate, Amicus Curiae for accused persons. I have also gone through the record.
10. PW-8 Inspector Satender Mohan, investigating officer, who conducted raid testified that on 21.11.05, he was present in the office of special staff and on that day, Ct. Sanjeev received secret information at about 2:00 am (night) that some criminals would gathered at Tikona Park, Naveen Shahdara and they are having legal (it should be illegal and appears to be typographical error) arms in their possession for the purpose of making planning to commit dacoity at Naveen Shahdara. He (Ct. Sanjeev) conveyed this information to him and he (Ct. Sanjeev) also produced the informer before him. He talked with the secret informer and he (informant) also disclosed the same information to him. Thereafter, he conveyed this information to ACP, Special Staff who directed him to conduct raid. He formed the raiding party consisting of the police staff i.e. myself, SI Pramod Anand, HC Amar Singh, HC Ram Kishan, Ct. Karamveer, HC Rishi Pal, Ct. Ranveer, Ct. Virender, Ct. Yoginder, Ct. Ominder, Ct. Sanjeev FIR No. : 553/2005, PS: Shahdara Page 7 of 16 8 and Ct. Mukesh. He also made the DD No.9 in this regard and thereafter, they alongwith the secret informer on Govt. Vehicle reached at Naveen Shahdara. He instructed HC Rishi Pal and secret informer to hear the conversation of those criminals who would gather at Tikona Park and after hearing, indicate to the police party by giving the signal by lighting the match stick. He also deputed the member of the police party to take their position at different places. No public person met them there due to late night hours to join them in the investigation. He took his position with Ct. Virender at east side of the park. HC Amar Singh and Ct. Ominder took their position at the west side of the park. SI Pramod Anand and Ct. Sanjeev and Ct. Karamveer took their position at the north side and the remaining police officers took their position at the south side of the park. At about 1:45 am (night), from the north side of the Tikona park, 6 persons in group of 2 each entered in the park and sat near the bushes at center of the park and started talking with each other. HC Rishi Pal went near them with the informer and heard their conversation and thereafter HC Rishi Pal indicated the police party by lighting the match stick. On this, member of the police party surrounded those criminals and he warned them to surrender before the police party as they have been surrounded by police party. On seeing the police party, those criminals started running in different directions. When he alongwith Ct. Virender tried to apprehend accused Amir whose name they later came to know, fired upon the police party towards Ct. Virender with desi katta but he (Ct. Virender) rescued himself by bending FIR No. : 553/2005, PS: Shahdara Page 8 of 16 9 towards the ground. He fired in the air in retaliation by his service revolver but no one sustained injuries. He with the help of Ct. Virender apprehended the accused Amir while he (accused) was reloading the cartridge in the katta. Ct. Sanjeev with the help of SI Pramod Anand apprehended accused Salim. Accused Sahid was apprehended by HC Rishi Pal and Karamveer. Accused Rafikul was apprehended by HC Amar Singh and Ominder. Accused Littan was apprehended by Ct. Ranveer and Ct. Mukesh. Accused Yusuf was apprehended by HC Ram Kishan and Ct. Yoginder. He lifted the one empty case of cartridge from the spot. From the right hand of accused Amir, one desi Katta containing empty case of cartridge was recovered. From his left hand, one live cartridge was recovered. He prepared the sketch of the katta and cartridges and measured their length and width and he also prepared the sketch of the katta and cartridges which was recovered from accused Salim and measured their length and width and he also prepared the sketch of the knife which was recovered from accused Yusuf, Rafikul and Sahid and Littan and measured their length and width. He also seized the above said weapons. He further stated that he asked from HC Rishi Pal about the conversation which was heard by him, on this, he stated that accused Amir was stated that they have to commit dacoity at a kothi (sic) at Naveen Shahdara whose raiki (investigation) has been done by accused Salim. He also stated that accused Amir was stating that after committing the dacoity, they will assemble at near Metro Station, Shahdara with the robbed articles and if anybody resist them, they will use FIR No. : 553/2005, PS: Shahdara Page 9 of 16 10 their arms and the other member of the accused party were agreeing with the accused Amir. He further stated that he prepared rukka and handed over the same to Ct. Sanjeev to get lodged the FIR from PS Shahdara. He (Ct. Sanjeev) took the same to PS Shahdara and after the registration of the FIR, he along with SI Dinesh and Ct. Harinder came at the spot. He handed over the accused persons, sealed parcels and the documents to SI Dinesh who arrested the accused persons. He prepared site plan at his instance and recorded his statement.
11. PW-4 HC Rishi Pal is the shadow witnesses who corroborated PW-8 IO regarding secret information, formation of raiding party, his deputation to overhear the conversation and to give signal, entry of accused in the group of 2 each. He stated that he went near them with the informer and heard that one person whose name was later on known as Amir was stating that they would commit dacoity at Khodhi, Naveen Shahdara who has seen by Salim. He further stated that he (accused) also told to others that if any problem is created they will use their arm and after committing the dacoity, they would gather at Metro Station, Welcome with robbed money and items. He further stated that the other criminals also agreed with the instructions of the Amir and stated "JO APNE KAHA HAIN HUM VAISA HI KARENGE". He further corroborated regarding giving pre-decided signal, firing by accused Amir upon police party, in retaliation firing in the air, apprehension of accused persons with illegal arms. He stated that he alongwith Ct. Karamveer apprhended accused Shahid Khan FIR No. : 553/2005, PS: Shahdara Page 10 of 16 11 and on taking formal search of accused Sahid one buttondar knife was recovered from the right hand pocket of pant. He further corroborated regarding preparation of rukka and registration of FIR through Ct. Sanjeev and his return with Ct. Harinder and SI Dinesh to whom further investigation was entrusted.
12. PW-5 Ct. Karamvir also corroborated other witnesses regarding secret information, formation of raiding party, deputation of HC Rishipal to overhear the conversation and to give signal, entry of accused in the group of 2 each, firing, apprehension of accused persons including Sahid alongwith illegal arms by respective members of the raiding party, preparation of rukka and registration of FIR through Ct. Sanjeev and his return with Ct. Harinder and SI Dinesh to whom further investigation was entrusted.
13. PW-7 Ct. Sanjeev testified that on 21.11.2005 he received secret information and conveyed the same to SI Satender Mohan and further corroborated other witnesses regarding formation of raiding party, deputation of HC Rishipal to overhear the conversation and to give signal, entry of accused in the group of 2 each, firing, apprehension of accused persons alongwith illegal arms by respective members of the raiding party, preparation of rukka and registration of FIR through him and his return with Ct. Harinder and SI Dinesh to whom further investigation was entrusted who arrested the accused persons and recorded their disclosure statements. He further testified that accused Salim was FIR No. : 553/2005, PS: Shahdara Page 11 of 16 12 also found in possession of three foreign coins which were seized by IO and further stated that accused Amir Khan @ Lambu led them at his house at Katwariya Sarai, House of Lala and got recovered the stolen jeweleries, camera, radio and IO seized the same.
14. PW-1 S.I. Dinesh, who was examined after the arrest of accused Sahid as PO, testified that on 21.11.2005, after the registration of this case FIR No. 553/2005, U/s 186/153/307/399/402 IPC and 25/27 Arms Act on the rukka of SI Satender, investigation was handed over to him on the direction of the SHO. He received copy of the FIR and rukka from Duty Officer. Thereafter, he alongwith Ct. Sanjeev Kumar reached at the spot at Tikona Park, Naveen Shahdara, Delhi, where SI Satender alongwith police party met him and he produced seven pullandas duly sealed with the seal of SM alongwith FSL Form, sketch memos and seizure memos. He also produced before him six accused persons namely Shahid (present accused) and accused Amir Khan @ Lamboo, Littan @ Guddu, Rafiqul, Mohd. Yusuf and Mohd. Salim who are POs. He prepared site plan Ex.PW-1/A at the instance of SI Satender and recorded his statement. He interrogated all the six accused persons and recorded their disclosure statements and arrested them and also conducted their personal search. He further stated that he also seized the coins U/s 102 Cr.P.C of country Nepal, one dollar, two pence which were recovered from the possession of accused Saleem and accused Saleem had disclosed that the same were the stolen FIR No. : 553/2005, PS: Shahdara Page 12 of 16 13 property. He also seized one mobile phone make Nokia U/s 102 Cr.P.C which was recovered from the possession of accused Amir @ Lamboo and accused Amir had disclosed that the same were the stolen property. Accused Amir had led them at his house at Katwaria Sarai, Lal ka makan and got recovered the stolen jewellery from his house and accused also produced stolen camera and radio which were lying on the slab of the room and I seized the same u/s 102 Cr.P.C and he had also seized seven implements of house breaking made up of iron which were also produced by accused Amir. He sent (sic) the four sealed parcels containing katta and cartridges to the FSL Rohini alongwith the FSL Form through Ct. Rohtash. He received the FSL result (Ballistic) Ex.PW-1/Y and placed the same on record.
15. PW-3 HC Harinder testified that on 21.11.2005 after the registration of the FIR of this case he alongwith SI Dinesh and Ct. Sanjeev reached at the spot where SI Satender Mohan alongwith the police staff met them. He further corroborated PW-1 regarding handing over of the accused, their arrest and personal search and recovery of house breaking instruments/implements from the house of Lala Katwariya Sarai, Delhi.
16. Ld. Defence counsel submitted that the public witnesses were available at the spot being the public place and there was ample time for the police party to join the public witnesses despite that no public witness was joined. Further submitted that there are glaring inconsistency between the testimonies of the witnesses FIR No. : 553/2005, PS: Shahdara Page 13 of 16 14 and the alleged articles were planted upon the accused persons and the prosecution witnesses are not reliable therefore the accused persons are entitled to acquittal
17. There are material inconsistency between the testimonies of the witnesses. PW-7 Ct. Sanjeev in his cross-examination stated that the distance between the spot and PS Shahdara is about 200-300 mtrs whereas as per the PW-8 SI Satender Mohan IO the distance between the spot and PS Shahdara is about 2 ½ to 3 km whereas PW-1 SI Dinesh states that the distance between spot and PS Shahdara is about 20-25 yards whereas PW-3 Ct. Harinder and PW-4 HC Rishi Pal claimed the distance between spot and PS is about 1 km. Further there is also inconsistency regarding the area of the park as PW-1 SI Dinesh Claims the area of the park is about 100-150 yards whereas PW-3 Ct. Harinder states that the area of the park is about 1000 sq. yards whereas PW-4 could not tell the area of the park but states that it is small park whereas PW-8 stated in his cross-examination that he does not remember the exact area of the park but it would be about 1 acre. PW-8 and PW-5 claimed that HC Rishi Pal overheard the conversation of the accused persons for about 15 minutes i.e. from 1:45 am to 2:00 am whereas PW-4 HC Rishipal himself states that he heard conversation for about 5 minutes. PW-3 Ct. Harinder stated in his cross-examination that the boundary wall of the park is about 3 ft. in height and thereafter there are grills of about 2-3 ft. contradicting the others who claimed the height of the wall in between 3 to 4 ft. but does not say that there are FIR No. : 553/2005, PS: Shahdara Page 14 of 16 15 grill upon the wall. PW-1 claimed that he stayed at the spot for about 10:00/10:30 am and Ct. Sanjeev, Ct. Harinder, Ct. Karamveer and 1-2 more police officials left the spot with him whereas PW-5 Ct. Karamvir claimed that they stayed at the spot for about 9:00/9:30 am whereas PW-4 HC Rishipal stated that police team remained at the spot upto 8:00/8:30 a.m. PW-5 stated in his cross-examination that he cannot tell the name of the accused who had come in the park firstly or lastly but they came (sic) in the group of three despite the fact all witnesses including him stated in their examination-in-chief that accused persons entered in the park in the group of two, which raises doubt regarding the prosecution case.
18. All the witnesses admitted in their cross-examination that there are residential flats near the park and no one was called from there to join the investigation. IO in his cross-examination stated he did not ask any public person to join the investigation as it was late night and no public person was available in the park and he had not made efforts to join the public persons on they way i.e. from the office to the spot and voluntarily stated it was late night. Admittedly there was GT Road near the spot which runs throughout the night. This case is based on secret information, therefore, there was ample opportunity to join the public person. In such like cases when there are possibility of plantation, joining of public witness lends credence to prosecution. However, non-joining raises doubt.
19. Keeping in view the inconsistency between the testimonies of the FIR No. : 553/2005, PS: Shahdara Page 15 of 16 16 witnesses at material points, and no genuine effort was made to join the public witnesses, I am of the opinion that the accused Sahid is entitled to benefit of doubt. Accordingly accused Sahid is acquitted of charges. His bailbond stands cancelled. Surety discharged. Case property, if any, be destroyed after the period of appeal. The file be revived again as and when the accused persons namely Amir Khan @ Lambu, Md. Salim, Md. Yusuf, Md. Littan @ Gudu and Rafiqul @ Salim who are proclaimed offenders (POs) are arrested. File be consigned to record room. Announced in the open court today i.e. on 18.04.2011 GURDEEP SINGH ASJ-04/NE/KKD/18.04.2011 FIR No. : 553/2005, PS: Shahdara Page 16 of 16