Delhi District Court
State vs . 1. Mohd. Illiyas @ Shakir S/O Hussain, ... on 7 January, 2008
1
IN THE COURT OF DR. R.K. YADAV : ADDITIONAL SESSIONS JUDGE :
KARKARDOOMA COURTS : DELHI :
Sessions Case No. 368/06
Date of Institution : 13.09.06
Date on which reserved for order : 04.01.08
Date of Delivery of Judgement : 07.01.08
State Vs. 1. Mohd. Illiyas @ Shakir S/o Hussain, R/o Village
Rainda, PS Rainda, Distt. Bhagiharat, Bangladesh.
2. Mohd. Harun Farazi S/o Fazul Rehman Farazi,
R/o Vill. Bada Badura, P.O. Fakir Badi, PS
Moralganj, Distt. Bhagiharat, Bangladesh.
3. Mohd. Appan @ Sakim S/o Abdul Sattar, R/o Vill.
Chhota Badura, P.O. Chokidar Hat, PS Moralganj,
Distt. Bhagiharat, Bangladesh.
4. Mohd. Munir S/o Mohd. Ayub Ali, R/o Village
Bada Badura, P.O. Fakir Badi, PS Moralganj, Distt.
Bhagiharat, Bangladesh.
5. Rubel @ Shamim S/o Muzibur Rehman, R/o Vill.
Godara, PS Fakir Badi, PS Moralganj, Bangladesh.
FIR No. 67/05
PS Bhajanpura
U/S 399/402 IPC and 25 of the Arms Act.
J U D G E M E N T : On 17.02.05, at about 6.10pm, Surender Singh, Constable, received a secret information that five or six vagabonds duly armed would assemble around 8.05pm at Shahid Bhagat Singh Park, Yamuna Vihar, Delhi, for the purpose of committing dacoity, who were already involved in various cases of dacoity. On this information, Rohtash Kumar SI recorded DD No. 7 and informed facts to Inspector Special Staff, who ordered him to conduct a raid. A raiding party headed by Rohtash Kumar SI, consisting of Shahid Ali, Head Constable, Jagbir HC, Sohanbir Singh HC, Surender, Constable, Ram Gopal, Constable, Jai Karan, Constable, Naresh Kumar, Constable, 2 Mukesh Constable, Sukhbir, Constable, Tek Ram Constable, and Arvind, Constable, was organized. Four or five public persons were asked to join the raiding party, but none agreed. Raiding party reached the spot at about 7.30pm. Jagbir, Head Constable and Ram Gopal, Constable,, who were in civvies, were directed to hear conversation of accused persons and in case information happens to be true, they would flash torch light. Other members of the raiding part were deputed to keep vigil. The raiding party had cordoned accused persons from all sides. At about 8.15pm, Jagbir HC gave appointed signal, police party came into action and overpowered five accused persons. However, one of them managed his escape good by taking advantage of darkness. Accused Mohd. Illiyas was found in possession of a loaded country made pistol and one live cartridge. One country made pistol and two cartridges were recovered from possession of accused Harun, while accused Appan, Munir and Rubel were found in possession of botton actuated knives. Accused Rubel was also found in possession of a torch and a screw driver. SI Rohtash Kumar prepared sketch of the country made pistols and cartridges, besides button actuated knives recovered from accused persons. He converted recovered articles into separate cloth parcels, sealed with seal of RK and took the same into possession. SI Rohtash Kumar prepared rukka and got a case registered through Constable Surender.
3 Accused persons were arrested. Investigation culminated into a chargesheet against the accused persons.
2. Charge for offences punishable under section 399 and 402 of the Penal Code was framed against all accused persons, besides separate charges for offence punishable under section 25 of the Arms Act framed against them, to which charges they pleaded not guilty and claimed trial.
3. To substantiate the charges, prosecution has examined Vikram Singh SI (PW1), Tek Ram, Constable (PW2), Satbir Singh, Head Constable (PW3), Jagbir Singh, Head Constable (PW4), Sukhbir, Constable (PW5), Sohanbir, Head Constable (PW6) and Rohtash Kumar, Inspector (PW7) in the case.
4. Satbir Singh, Head Constable, was working as duty officer on 17.02.05. He recorded formal FIR and proved copy of it as Ex.PW3/A. Tek Ram, Constable, Jagbir Singh, HC, Sukhbir, Constable, Sohanbir HC and Rohtash Kumar, Inspector, deposed facts of the case. They deposed that on 17.02.05, they were members of the raiding party, which was formed by Rohtash Kumar, Inspector, in pursuance of secret information received by Surender Singh, Constable. They proceeded for Yamuna Vihar Park, where five or six vagabonds were to assemble for committing dacoity. Four or five public persons were asked to join the raiding party, but none 4 agreed. Jagbir and Ram Gopal, Constables were deputed to overhear conversation going on between the accused persons. Accused persons were cordoned by them. After receiving appointed signal from Jagbir, Constable, accused persons were overpowered there at the spot. However, one of them managed his escape good. Accused persons were personally searched and arms and ammunitions were recovered from their possession. Recovered arms were converted into separate cloth parcels, sealed and taken into possession, depose the witnesses. Thereafter, rukka recorded by Rohtash Kumar, Inspector, was taken by Surender Singh, Constable, for registration of a case. Accused persons were arrested. Vikram Singh SI unfolds that on 05.03.05, he was assigned with investigation of the case. On 11.04.05, he took two parcels duly sealed with seal of RK from malkhana and deposited it in FSL Rohini. Thereafter, in the month of November, 2005 result of FSL was received. He obtained sanction under section 39 of the Arms Act to prosecute accused Harun and Mohd. Illiyas for offence punishable under section 25 of the Arms Act.
5. In order to afford an opportunity to explain circumstances appearing in evidence against them, accused persons were examined under section 313 Cr.P.C. They denied all allegations levelled against them. Their case has been of denial simplicitor.
5 They plead themselves to be innocent and claim that they were falsely implicated in the instant case by the investigating agency. They did not lead any evidence in support of their defence.
6. Arguments were heard at the bar. Sh. R.K. Pandey, ld. Prosecutor, had presented facts on behalf of the State. Sh. V.K. Singh and Abdul Sattar, Advocates, had advanced arguments on behalf of the defence. I have given my careful consideration to arguments advanced at the bar and cautiously perused the record. My findings on the issues involved in the controversy are as follows :
7. Jagbir Singh, Head Constable, had testified that on 17.02.05 at about 6.10pm, a raiding party was organized on receipt of a secret information. Head Constables, namely, Shahid and Sohanbir and Constables, namely, Surender, Jai Karan, Sukhbir, Tek Ram, Ram Gopal, Mukesh, Arvind and Naresh, besides him were members of the raiding party. They proceeded Yamuna Vihar Bus Terminal by their respective vehicles, vide DD No.8, at 6.30pm. They reached there at about 7.30pm with informer. Four or five public persons were requested to join the raiding party, but none agreed. Jagbir Singh, Head Constable, and Ram Gopal, Constable, who were in civvies, were instructed to overhear conversation of accused persons, who had assembled at Shahid Bhagat Singh Park.
6 Accused persons were cordoned and apprehended. However, one of them managed his escape, whose name was later on disclosed by the accused persons as Kabir @ Chhota Kabir. Accused Rubel was apprehended by Jagbir Singh, Head Constable, with the help of Ram Gopal, Constable. Similarly, other accused persons were apprehended by other police officials. Tek Ram, Constable, Sukhbir, Constable, Sohanbir, Head Constable and Rohtash Kumar, Inspector had also testified facts in the same vein. Question for consideration comes as to whether mere assemblage of the aforesaid accused persons at Shahid Bhagat Singh Park, Yamuna Vihar, Delhi, pushes accused persons within the mischief of offence enacted by the provisions of section 399 and 402 of the Penal Code? Answer is simple. Nothing is illegal in mere assemblage of men, nor it is criminal to assemble for an illegal purpose, since essence of crime coined by section 402 of the Penal Code lies not in the assemblage of men but in their assemblage for the purpose of committing a dacoity. This can only be done by circumstantial evidence inevitably pointing to that purpose. In such cases the intention to commit dacoity relates to a future act, and it is not possible in all cases to obtain or adduce evidence of actual intention. The only evidence that may be available in such cases is the evidence of conduct and circumstances from which the Court may 7 justifiably infer the existence of an intention to commit dacoity.
8. Neither Tek Ram, Constable, nor Jagbir, Head Constable, nor Sukhbir, Constable, nor Sohanbir, Head Constable nor Rohtash Kumar, Inspector, had testified that accused persons were members of a notorious dacoit gang. None of them unfold that dacoity cases were registered against them. It is not their case that Shahid Bhagat Singh Park, Yamuna Vihar, Delhi, was a dacoit infested area. It is evident that not even an iota of fact has been brought over record to suggest that accused persons were having notoriety as dacoits and they were involved in various dacoity cases. Consequently, no evidence has come over record to infer the fact that accused persons had assembled at Shahid Bhagat Singh Park, Yamuna Vihar, Delhi to commit dacoity. Their mere assemblage at Shahid Bhagat Singh Park, Yamuna Vihar, Delhi, if those facts are taken to be true, would not lead to proposition that they were present there for commission of dacoity and made preparation in that regard.
9. In a case of assembling for dacoity, there may be assemblage without preparation but something more is required before members of an assembly can be said to be preparing to commit dacoity. The essential thing seems to be that the prosecution must show that there were persons who had conceived the design of committing dacoity. Once the existence of such a 8 conspiracy has been established, then any steps taken with the intention and for the purpose of forwarding that design may justify the Court in holding that there has been preparation within the meaning of section 399 of the Penal Code. The making of preparation to commit dacoity postulates the determination to commit that offence. These offences have this in common that they presume an intention or agreement to commit dacoity by five or more persons. After assembling for the purpose of committing a dacoity and proceeding to a certain distance on their way to their destination, it is possible that the idea may be abandoned. When once the destination is reached or almost reached, preparation becomes complete, and till then, there would be mere assemblage.
10. No evidence has been brought over record to highlight that accused persons proceeded towards their destination for preparation to commit dacoity. It has been projected by the aforesaid police officers that accused persons were overpowered in Shahid Bhagat Singh Park, Yauna Vihar, Delhi, itself. They had not taken a step ahead to put their designs into action. Consequently, it is evident that nothing has come over record to infer that accused persons took steps for preparation to commit dacoity.
11. Jagbir Singh, Head Constable, projects that he along with Ram Gopal, Constable, were instructed to go inside Shahid Bhagat 9 Singh Park and overhear conversation of accused persons. He tells that they went inside the park and noticed six persons sitting behind the bushes. One of them was saying that they would commit dacoity in Bhajanpura and in case anyone would resist, then other associates would use their respective weapons. In case of darkness inside the house, Rubel would flash torch light. Out of facts testified by Jagbir Singh, Head Constable, prosecution wants to project that accused persons were planning to commit dacoity in the area of Bhajanpura. As projected by Jagbir Singh, Head Constable, and other witnesses, police party reached Yamuna Vihar Depot around 7.30pm and waited there for arrival of offenders. When offenders went inside the park, then Jagbir Singh, Head Constable, was deputed to overhear their conversation. Jagbir Singh, Head Constable, claims that he overheard them from behind bushes, when accused persons were talking that they would commit dacoity in Bhajanpura area. When offenders reached park at same time simultaneously, what was the necessity for them to sit behind bushes and then to decide that they would commit dacoity in Bhajanpura area. While going to the park, they were having opportunity to decide as to where dacoity would be committed. Further more, the fact that they were talking in such a loud manner to be overheard by Jagbir Singh, Head Constable, pushes the story 10 of prosecution in the arena of doubt. It seems that a false story has been fabricated with ulterior motives. Jagbir Singh, Head Constable, details facts, which are not in consonance with ordinary human behaviour. When facts testified by this witness are assessed on standards of veracity, it came to my notice that altogether a common placed story has been put forward, which does not inspire any confidence.
12. It was alleged by Tek Ram, Constable, and Rohtash Kumar, Inspector that country made pistol Ex.P1, live cartridge Ex.P2 and spent cartridge Ex.P3 were recovered from possession of accused Harun Farazi, besides country made pistol Ex.P10, live cartridge Ex.P11 and spent cartridge Ex.P12 recovered from possession of accused Mohd. Illiyas. Despite claim that country made pistols and cartridges were allegedly recovered from possession of accused Harun Farazi and Mohd. Illiyas, prosecution has not proved sanction to prosecute them for offence punishable under section 25 of the Arms Act. In absence of sanction to prosecute them for said offence, alleged possession of country made pistol and cartridges by accused Harun Farazi and Mohd. Illiyas would not make them accountable for offence punishable under section 25 of the Arms Act.
13. When depositions of Jagbir, Head Constable, Sohanbir, 11 Head Constable, Tek Ram, Constable, Sukhbir, Constable and Rohtash Kumar, Inspector, were closely perused, various inherent infirmities surfaced over record. There are discrepancies in their depositions to the effect that as to at what time they departed from police station, as to what was distance between the spot and police station, what was the distance between place of information and spot, what was height of said boundary wall, how many gates were there in that park, whether public persons were present in the park or not, what was the source of light, when writing work was done and the place where writing work was done. It emerges over record that discrepancies on the aforesaid issues are suggestive that either aforesaid police officers were not present at the spot simultaneously or facts were fabricated by them later on. Discrepancies on the aforesaid issues make it clear that story projected by aforesaid police officials is a commonplaced story.
14. Accused persons were allegedly arrested on receipt of a secret information. Secret information was received at about 6.10pm and accused persons were overpowered at about 8.15pm. There was time and opportunity to join the witnesses from public. A lip service has been made, when it has been testified by the aforesaid police officials that four or five persons were asked to join the raid, but none agreed. It is evident that presence of independent 12 witnesses was intentionally avoided by police with a view to make their case a foolproof concoction. That fact castigates evidence of aforesaid police officials.
15. There are various loopholes in testimony of witnesses referred above, which opens various gateways for the accused persons to slip out of net of the prosecution. Story projected by the aforesaid police officials was not found to be true at all. Discrepant facts testified by the aforesaid police officials persuade me to insist for corroboration of their depositions by independent piece of evidence, direct or circumstantial. No corroboration was forthcoming from independent piece of evidence. It is evident that a story was fabricated by aforesaid police officials with ulterior motives. Considering these aspects, I am constrained to conclude that it is highly unsafe to rely over uncorroborated and tainted depositions of the aforesaid police officials. Consequently, depositions of the aforesaid police officials are hereby discarded from consideration of guilt of the accused persons. By awarding them benefit of doubt, they are acquitted of the charges. Accused persons be released from custody forthwith, if not wanted in any other case. Case property be confiscated to the State and be destroyed, after period of appeal is over. File be consigned to Record Room.
Announced in the Open Court (Dr. R.K. Yadav)
th
On this 7 day of January, 2008. Additional Sessions Judge :
Karkardooma Courts, Delhi.