Delhi District Court
S.C. No.85/10 Fir No.586/07 State vs . Mohd. Nazrool Etc. 1 /23 on 28 February, 2013
IN THE COURT OF SHRI RAJEEV BANSAL,
ASJ-03 (SOUTH DISTRICT), SAKET COURTS,
NEW DELHI.
S.C. No.85/10
(Unique I.D No. 02403R0767902007)
FIR No.586/07
PS: Mehrauli
U/S:399/402 IPC &
25 Arms Act.
State
Versus
(1) Mohd. Nazrool
S/o Mohd. Jamal Khan
R/o Bangla Bazaar, PO- Saroon Sula,
PS Rayeeda Randa, Distt. Bagehutt,
Bangladesh.
(2) Mohd. Milan
S/o Ajij Khalifa
R/o Village Mathirpur, P.S Rang,
Distt. Bagehutt, Bangladesh.
(3) Mohd. Sarwar Khan
S/o Mohd. Ismail Khan
R/o Dokhin, Rajapur,
PO- Rasoolpur, P.S Raunda, Distt. Bagehutt,
West Bengal.
(On inquiry, it is revealed that
the above address pertains to
Bangladesh and not West Bengal.
West Bengal is to be read as Bangladesh).
Date of initial institution in the court :10.10.2007
Date of institution in the present court: 05.10.2010
Date of pronouncement : 28.02.2013
S.C. No.85/10 FIR No.586/07 State vs. Mohd. Nazrool etc. 1 /23
JUDGMENT
1. Accused persons faced trial under Sections 399/402 IPC. Apart from it, accused Mohd. Milan and Mohd. Sarwar Khan were also charged under Section 25 of the Arms Act for possessing a buttondar knife each, whereas accused Mohd. Nazrul was found in possession of one katta and two live cartridges and hence, he too was charged u/s 25 of the Arms Act.
2. FIR No. 586/07 was registered on 11.8.2007 at PS Mehrauli under Section 399/402 IPC and Section 25 of the Arms Act. It has been stated in the FIR that a secret informer informed SI Sanjeev Solanki at about 10.30 pm that at about 12:00/12.30 midnight, 5-6 persons will assemble with weapons to commit dacoity in Farm House at IIPM Chandan Hola near Abhinav Farm on Baandh Road and if a raid is conducted, they can be apprehended. The SHO shared this information with the ACP, Hauz Khas and the secret information was recorded vide DD No. 35 A. SHO formed a raiding party consisting of SI S.C. No.85/10 FIR No.586/07 State vs. Mohd. Nazrool etc. 2 /23 Sanjeev Solanki, HC Yudhvir, HC Attar Singh, Ct. Arjun, Ct. Satpal, Ct. Surender, Ct. Sandeep and driver Ct. Srikrishan of Govt. vehicle no. DL 1L D 4965. The SHO briefed the team and they all, alongwith the secret informer, left the police station at 11.15 pm. At about 11.20 pm, SI Sanjeev Solanki asked 3-4 passersby at Mehrauli Bus Terminal to join the investigation, but none of them agreed. They all then reached IIPM Chandan Hola near Abhinav Farm at about 11.40 pm. The vehicle was concealed near road and driver Ct. Srikishan was deputed on the vehicle. SI Sanjeev Solanki briefed the raiding team and staff was positioned at appropriate places. At about 12:15 a.m, five persons were seen coming from the side of Chandan Hola, Abhinav Farm, Baandh Road, on foot and they collected in front of 'Abhinav Farm' and sat there. The IO alongwith the secret informer reached near those persons and heard their conversation. One of them stood up and addressed the others stating that all of them will commit dacoity in a pre- decided farm house on Radhey Mohan Drive and in this S.C. No.85/10 FIR No.586/07 State vs. Mohd. Nazrool etc. 3 /23 planning if anybody causes any hindrance, then they will use the weapons which they are having and will commit the dacoity by all means. Hearing this, the IO gave the signal of the torch to the raiding party. Police party encircled them from all sides, on which all of them started to run here and there but they were apprehended and from their possession weapons were recovered. The rukka was prepared which was sent to the PS for registration of the case and for handing over the further investigation to SI A.K.Singh.
3. After completion of the investigation, the charge- sheet was filed under Section 399/402 IPC and 25 of the Arms Act. Out of the five accused persons, one Mohd. Bilal was found to be juvenile and rest four were sent to face trial.
4. Since the offence under Section 399/402 IPC is triable by the Sessions Court, this case was committed to this court.
S.C. No.85/10 FIR No.586/07 State vs. Mohd. Nazrool etc. 4 /23
5. On 10.07.2009, accused Mohd. Nazroo, Mohd. Sarwar, Mohd. Milan and Mohd. Kabir were charged under Section 399/402 IPC. Apart from it, accused Mohd. Nazrool from whom a katta and two live cartridges were recovered; accused Mohd. Sarwar from whom a buttondar knife was recovered and accused Mohd. Milar from whom also a buttondar knife was recovered, were also charged under Section 25 of the Arms Act. All the accused persons pleaded not guilty and claimed trial.
6. In order to prove its case, prosecution examined nine witnesses and all these nine witnesses are police officials.
6.1 PW-1 Ct. Surender deposed that on 10.08.2007, he was posted at P.S. Mehrauli. On that night, the then SHO Inspector K.P. Kukreti received a secret information through a secret informer that five persons would collect at Baandh Road, Abhinav Farm, IIPM, Mehrauli, for the purpose of committing dacoity. He prepared a raiding team comprising himself, SI Sanjeev Solanki, HC Yudhvir, S.C. No.85/10 FIR No.586/07 State vs. Mohd. Nazrool etc. 5 /23 HC Attar Singh, Ct. Sandeep, Ct. Arjun, Ct. Satpal and Ct. Sri Kishan (Driver of the government vehicle); they all left the PS at about 11:15 p.m in the government vehicle and reached Bus Terminal, Mehrauli at about 11:20 p.m; there SI Sanjeev Solanki requested 3-4 passers-by to join the raiding team but none agreed; they reached at 11:40 p.m at Abhinav Farm, IIPM; the government vehicle was parked by the side of the road; SI Sanjeev Solanki briefed the raiding team and told that he will give signal by lighting the torch, if the information was found to be correct. He further deposed that at 12:15 midnight, five persons were seen coming from the side of Chandan Hola and they all collected at the side of 'Abhinav Farm' and they started talking. SI Sanjeev Solanki gave the signal by lighting the torch. SI Sanjeev Solanki apprehended accused Mohd. Nazrool and from his search, one Dessi Katta was recovered which was found to be loaded with one live cartridge and one more live cartridge was recovered from the pocket of his pant. Ct. Sandeep apprehended accused Mohd. Bilal (Juvenile) and from his S.C. No.85/10 FIR No.586/07 State vs. Mohd. Nazrool etc. 6 /23 search, a nylon string and a screwdriver were recovered. Ct. Arjun apprehended accused Mohd. Kabir and from his possession, one iron rod was recovered. HC Yudhvir apprehended accused Mohd. Sarwar and from his possession, one buttondar knife was recovered. HC Attar Singh apprehended accused Mohd. Milan and from his possession also, one buttondar knife was recovered. All the weapons were seized and converted into pullandas and sealed with the seal of 'SS' after making rough sketches of them. SI Sanjeev Solanki prepared the rukka and handed over the same to this witness for registration of the FIR and he left the spot at about 2:20 a.m for registration of the FIR with Driver Ct. Sri Kishan. He alongwith Driver Ct. Sri Kishan came back at the spot at about 3:40 a.m and handed over the copy of the FIR and rukka to SI A.K. Singh for conducting further investigation. He identified all the accused persons in the court. In his cross- examination, he stated that he was called from beat area to join the raiding party. He stated that the secret information was not received in his presence. He could not tell S.C. No.85/10 FIR No.586/07 State vs. Mohd. Nazrool etc. 7 /23 whether any permission was taken by Inspector K.P. Kukreti from the higher police official before forming the raiding party or not. He stated that he had not got issued any weapon but the other members of the raiding party were having weapons; the raiding party consisted of seven members including him. He could not tell whether the other six members of the raiding party were having weapons or not; before taking the position at the spot at about 11:40 a.m, IO had gone to Abhinav Farm and had knocked the door of the farm house but nobody responded; all accused persons came together at about 12:15 a.m; there was darkness at the spot and there was no source of light but the IO was carrying torch for the purpose of giving signal to the raiding party. He could not tell the distance from where the shadow witness had heard the conversation of the accused persons. The shadow witness gave signal after about 15 minutes of the arrival of the accused persons at about 12:25 a.m; he could not tell the direction in which he was standing but stated that he was at the distance of 40-50 meters from the accused S.C. No.85/10 FIR No.586/07 State vs. Mohd. Nazrool etc. 8 /23 persons.
6.2 PW-2 ASI Attar Singh is also a member of the raiding team. He also deposed on the same lines as deposed by PW-1. In his cross-examination, he stated that the secret information was received by Inspector K.P. Kukreti at the PS Mehrauli but he was not present at that time; There were eight police personnel in the raiding party; Inspector K.P. Kukreti took permission from the ACP concerned to form a raiding party in his presence and in the presence of other members of the raiding party; he was having a pistol but could not tell whether the other members of the raiding party were carrying weapons or not; he could not tell the distance between SI Sanjeev Solanki and the accused persons; he could not tell as to whether the accused persons were planning to commit dacoity for any particular place or not; the IO had not made any effort to join any public person in investigation after the accused persons were apprehended. S.C. No.85/10 FIR No.586/07 State vs. Mohd. Nazrool etc. 9 /23 6.3 PW-3 HC Mahender Bhardwaj is the Duty Officer, who proved the registration of the FIR as Ex. PW3/A and the endorsement made by him on rukka as Ex. PW3/B. 6.4 PW-4 HC Rameshwar is Malkhana Moharrar, who deposed regarding receiving four parcels on 11.08.2007 from SI. A.K. Singh. He entered all parcels in Register vide entry No. 3399 which he proved as Ex. PW4/A. He further deposed that on 29.08.2007, he had sent one sealed pullanda containing pistol and two live cartridges to FSL through Ct. Rajender vide RC No. 101/21/07 Ex. PW4/B. 6.5 PW-5 HC Yudhvir Singh is a member of the raiding team. He also deposed alike other members of the raiding party, namely, PW-1 and PW-2. In his cross- examination, he stated that he was not present when the secret information was received by Inspector K.P. Kukreti; no permission was sought by Inspector K.P. Kukreti from higher police official to form a raiding party in his presence; there were seven members in the raiding party S.C. No.85/10 FIR No.586/07 State vs. Mohd. Nazrool etc. 10 /23 and all of them were present in the PS when the raiding party was formed. He could not tell if any weapon was got issued by any member of the raiding party before leaving the PS; all the accused persons had assembled there at the same time; it had come to his notice that the accused persons were planning to commit dacoity at Abhinav Farm; he had not gone to Abhinav Farm for any investigation; he could not tell whether the IO had gone to Abhinav Farm or not; some of the documents were prepared at the spot and some statements under Section 161 Cr.P.C and disclosure statements of the accused persons were recorded in the PS. He stated that source of light at the spot was a tubelight of a pole which was near the spot and there were light poles installed at some distance from each other on the entire road. He also stated that he was having the pistol at the time of conducting the raid but could not tell what weapon was being carried by SI Sanjeev Solanki or by other members of the raiding party; accused persons had assembled opposite IIPM. S.C. No.85/10 FIR No.586/07 State vs. Mohd. Nazrool etc. 11 /23 6.6 PW-6 is Ct. Rajender, who took the pullanda containing pistol and cartridges on 29.08.2007 to FSL. 6.7 PW-7 S.I. A.K. Singh is the second IO. He deposed that on 11.08.2007 at about 3:30 a.m, he received copy of the FIR and original rukka. He alongwith Ct. Surender reached the spot where SI Sanjeev Solanki and other police staff met him and custody of the five accused persons were handed over to him. He interrogated them and arrested them vide arrest memos Ex.PW7/A (Mohd. Sarwar Khan); Ex.PW7/B (Mohd. Nazrool); Ex. PW7/C (Mohd. Bilal); Ex.PW7/D (Mohd. Kabir); Ex.PW7/E (Mohd. Milan). He proved the disclosure statements of Mohd. Sarwar Khan as Ex.PW7/K; Mohd. Nazrool as Ex.
PW7/L; Mohd. Milan as Ex.PW7/M. He proved preparation of site plan at the instance of the SI. Sanjeev Solani as Ex.PW7/N. As per the disclosure statements of accused Mohd. Sarwar Khan, Mohd. Milan and Mohd. Nazrool, they reached Chauma Village near Palam Vihar, Gurgaon alongwith three accused persons. All the three accused persons took them to a rented room and accused S.C. No.85/10 FIR No.586/07 State vs. Mohd. Nazrool etc. 12 /23 Mohd. Nazrool took out a key which he concealed near the room and after opening the said room, they got recovered one Potli of white cloth from a shelf from which two mobile phones, one wrist watch, some jewellery etc were seized vide seizure memo Ex. PW7/O. On 28.07.2008, he sent the recovered Katta to FSL through a Constable and recorded his statement. After completion of the investigation, he filed the challan in the court. On 16.01.2009, he filed the FSL Report alongwith the Sanction under Section 39 of the Arms Act. The FSL Report is Ex. PW7/P. In his cross-examination, he stated that he reached the spot at about 3:30/3:40 a.m from PS on Tata-407; some documents were prepared in the PS; he had not asked the guards/chowkidars of the nearby farm houses to join the investigation.
6.8 PW-8 Ms. Chhaya Sharma, DCP, proved the sanction as Ex.PW8/A which she had accorded under Section 39 of the Arms Act for prosecuting accused Mohd. Nazrool. In her cross-examination, she stated that she took one day to grant the sanction. The country made S.C. No.85/10 FIR No.586/07 State vs. Mohd. Nazrool etc. 13 /23 pistol was not produced before her by the IO. 6.9 PW-9 Inspector Sanjeev Solanki is the first IO, who deposed on the lines of rukka. In his cross- examination, he stated that he was present when Inspector K.P. Kukreti received the secret information, as also HC Yudhvir Singh, who was also present there at that time. He could not tell whether Inspector K.P. Kukreti had informed any police official before constituting the raiding party or not. Before proceeding to conduct the raid, weapons were issued to the members of the raiding party but he could not tell to whom the weapons were issued; he was having the weapon; he could not tell which member of the raiding party took position on which side; the accused persons made conversation for about 5-7 minutes and thereafter he gave signal by lighting the torch; he heard the conversation of the accused persons at the distance of 5-6 meters; accused persons had not named any particular farm house in which they were planning to commit dacoity; no public witness was found present at the spot or nearby when the accused persons were S.C. No.85/10 FIR No.586/07 State vs. Mohd. Nazrool etc. 14 /23 apprehended; he made efforts to get the public persons to join the investigation by going to nearby farm houses but none came out; IO/SI A.K. Singh had prepared the documents under a streetlight.
7. All the incriminating circumstances were put to all the accused persons but they denied their involvement in the alleged crime. They also stated that nothing incriminating had been recovered from their possession or at their instance. They stated that they have been falsely arrested and implicated in this case.
8. No defence evidence was led on behalf of the accused persons and hence, the arguments were heard.
9. Ld. Addl. PP has stated that pursuant to a secret information, all the accused persons were apprehended at the spot when they were making planning to commit dacoity. The planning was heard by SI Sanjeev Solanki and when he found the secret information to be correct, he gave the signal by lighting the torch whereafter the police raided them and apprehended them. From them, weapons S.C. No.85/10 FIR No.586/07 State vs. Mohd. Nazrool etc. 15 /23 and implements to commit dacoity were recovered. He has further stated that although the accused persons have stated that they have been falsely implicated in this case, yet no defence evidence was led by them to prove their innocence and false implication. It has, therefore, been stated that the ingredients of Section 399/402 IPC and 25 of the Arms Act are fulfilled and hence the accused persons be convicted for these offences.
10. On the other hand, Ld. Counsel for the accused persons has argued that the prosecution has to stand on its own legs and is bound to prove its case beyond all reasonable doubts. It has been stated that there is no coherence in the deposition of the witnesses of the raiding team which makes the prosecution case highly doubtful and hence the prosecution is not able to prove its case beyond all reasonable doubts. Ld. Counsel has stated that the accused persons, therefore, deserve to be acquitted.
11. I have heard both the sides and have perused the records of the case. The law is well settled that the S.C. No.85/10 FIR No.586/07 State vs. Mohd. Nazrool etc. 16 /23 prosecution has to stand on its own legs and cannot derive any benefit due to lapses in defence. The first obligation is on the prosecution to prove its case beyond all reasonable doubts and when this onus is discharged by the prosecution, then only the question of bringing the defence arises but if the prosecution fails to prove its case beyond all reasonable doubts, there is no obligation on the defence to produce its witnesses.
12. The offence under Section 399 IPC relates to making preparation to commit dacoity and Section 402 IPC relates to assembling for the purpose of committing dacoity.
13. Case of the prosecution is that all the three accused persons alongwith their associates, namely, Mohd. Bilal (Juvenile) and Mohd. Kabir (PO) had assembled in the intervening night of 10/11.08.2007 near IIPM for the purpose of making preparation to commit dacoity. The secret information in this respect was received in the PS by SHO, who thereafter formed a raiding party and the S.C. No.85/10 FIR No.586/07 State vs. Mohd. Nazrool etc. 17 /23 raiding party reached the spot where the accused persons were apprehended when they arrived at the spot and made preparation for committing dacoity. If the entire prosecution evidence which has been led, is sifted minutely, many flaws appear in the deposition of the witnesses which go to the root of the case and make the prosecution case doubtful.
14. According to the FIR, the raiding party consisted of eight members, namely, SI Sanjeev Solanki, HC Yudhvir, HC Attar Singh, Ct. Arjun, Ct. Satpal, Ct. Surender, Ct. Sandeep and driver Ct. Srikrishan. However, PW-1 Ct. Surender and PW-5 HC Yudhvir Singh stated that the raiding team consisted of seven members. There is contradiction regarding sharing of information by the SHO with the ACP. PW-2 ASI Attar Singh stated that the SHO had taken permission in his presence and in the presence of other members of the raiding team from the ACP. However, PW-1 Ct. Surender stated that he does not know whether the said information was shared by the SHO with the ACP or not. On this point, PW-5 HC Yudhvir Singh S.C. No.85/10 FIR No.586/07 State vs. Mohd. Nazrool etc. 18 /23 had stated that no information was shared by the SHO with the ACP. So, there are contradictions in this regard in the testimony of the witnesses. On the point whether the members of the raiding team were present in the PS when the raiding team was constituted, PW-1 Ct. Surender stated that he was at that time in his beat and was called from there to join the raiding team. PW-2 ASI Attar Singh, however, stated that all the members of the raiding team were present in the PS when the team was formed. PW-5 HC Yudhvir Singh had stated that all seven persons of the raiding team were present in the PS. Regarding the presence of any member when the secret information was received is concerned, PW-9 Inspector Sanjeev Solanki stated that the secret information was received by SHO K.P. Kukreti in the presence of PW-5 HC Yudhvir Singh. However, HC Yudhvir Singh, in his deposition, stated that no such information was received by Inspector K.P. Kukreti in his presence. On the question of carrying the weapon in the raid, PW-1 stated that he did not get issued any weapon whereas the others were having weapons but S.C. No.85/10 FIR No.586/07 State vs. Mohd. Nazrool etc. 19 /23 he could not tell whether the other members of the raiding team were carrying weapons or not. PW-2 ASI Attar Singh and PW-5 HC Yudhvir Singh have stated that they were carrying pistols but they could not tell whether others were carrying weapons or not. So the witnesses are not able to tell as to which member of the raiding party was carrying which weapon. Further, PW-1 Ct. Surender stated that there was no source of light at the spot whereas PW-5 HC Yudhvir Singh stated that there was tubelight near the spot and PW-9 Inspector Sanjeev Solanki stated that there was streetlight. Regarding the place where the accused persons are stated to have collected, PW-1 Ct. Surender, PW-2 ASI Attar Singh and PW-5 HC Yudhvir Singh stated that the accused persons collected by the side of Abhinav Farm whereas PW-9 Inspector Sanjeev Solanki stated that accused persons had collected in front of 'Abhinav Farm' in a vacant land. PW-5 HC Yudhvir has also stated that the accused persons sat in the bushes. The contradictions are also with respect to the purpose of collecting, PW-5 HC Yudhvir Singh stated that accused S.C. No.85/10 FIR No.586/07 State vs. Mohd. Nazrool etc. 20 /23 persons collected and were making preparation to commit dacoity at Abhinav Farm whereas PW-2 ASI Attar Singh stated that he could not tell name of the place for which the accused persons were making planning to commit dacoity. PW-9 Inspector Sanjeev Solanki in this respect stated that the accused persons were not planning to commit dacoity in any particular farm. No public witness was associated in the investigation of the case at any stage which is also another circumstance which goes against the prosecution. Apart from it, PW-1 Ct. Surender had stated that before taking the position, Inspector Sanjeev Solanki had gone to Abhinav Farm but PW-5 HC Yudhvir Singh had stated that IO Sanjeev Solanki had not gone to Abhinav Farm. PW-7 SI A.K. Singh had stated that he did not ask any nearby guard to join the investigation. There is also contradiction regarding the recording of the statements. PW-5 HC Yudhvir Singh had stated that some statements were recorded at the spot while some were recorded in the PS. PW-7 SI A.K. Singh stated that all the statements were recorded at the spot. Yet another S.C. No.85/10 FIR No.586/07 State vs. Mohd. Nazrool etc. 21 /23 discrepancy is with respect to the arrival of S.I A.K. Singh at the spot. Whereas PW-7 SI A.K. Singh claimed that he reached the spot with Ct. Surender but Ct. Surender stated that he had reached the spot after getting the FIR registered with Ct. Sri Kishan. PW-2 ASI Attar Singh and PW-5 HC Yudhvir Singh also stated that Ct. Surender and Ct. Sri Kishan reached the spot together and none of them stated that SI A.K. Singh had also come to the spot with Ct. Surender.
15. Section 399/402 IPC makes the assembly of five persons for the purpose of making preparation to commit dacoity, punishable. The prosecution is bound to show that the accused persons had assembled at a particular place and the purpose of said assembly was to make preparation to commit dacoity. There are lapses in the prosecution story as pointed out above. The defence of the accused persons as stated by them in their S.A is that they have been falsely implicated in this case and the recoveries have been planted upon them.
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16. All the aforesaid circumstances when read together, raise serious doubts about the prosecution case. The prosecution has thus not been able to prove its case against the accused persons beyond all reasonable doubts that they had assembled to make preparation to commit dacoity and weapons were recovered from their possession. In the net result, when this is the position, the accused persons are entitled to be acquitted, giving them benefit of doubt. Accordingly, they are acquitted. They be released from JC, if not required in any other case.
17. File be consigned to the Record Room, to be revived as and when accused Mohd. Kabir (P.O) is arrested.
Announced in the open Court. (Rajeev Bansal)
Dated:28.02.2013 ASJ-3/South District
Saket Courts, New Delhi
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