Delhi District Court
State vs . 1. Anwar Hussain @ Nata on 21 January, 2012
IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS
JUDGEII (NORTHWEST): ROHINI COURTS: DELHI
Sessions Case No. 104/2011
Unique Case ID: 02404R5245092004
State Vs. 1. Anwar Hussain @ Nata
S/o Samad Ali
R/o Village Aminnatala,
PS Shivchar, Distt. Madaripur,
Bangladesh.
Also at: Jhuggi No. C19A/90, Bihari Basti
Sanjay Amar Colony,
Yamuna Pusta, Delhi.
(Since PO)
2. Aslam @ Bachchu
S/o Ohab
R/o Village Buraitala,
PS Rajour, Distt. Faridpur,
Bangladesh
Also at: House No. 253, Gali No. 2,
Near Rasida Masjid,
Shahstri Park, Delhi.
(Since Expired)
3. Fazla @ Fazlu
S/o Samad Ali
R/o Village Aminnatala,
PS Shivchar, Distt. Madaripur,
Bangladesh.
State Vs. Anwar Hussain etc., FIR No. 25/04, PS Shalimar Bagh Page 1 of 40
Also at: House of Nand Lal, Gali No. 3
C Block, Kachchi Colony, Khajuri
Shri Ram Colony, Delhi.
(Convicted)
4. Paramjeet @ Sonu
S/o Rajesh Singh
R/o Mohalla Rajinder Nagar, Bazar
Samiti Patna, Bihar.
Also at : Vega Bond, Company Bagh, Delhi.
(Since PO)
5. Babul @ Bambaiya
S/o Opu
R/o Village Lalbagh, PS Kilarmore
Distt.: Daka, Bangladesh
Also at : House of Munna Master, Gali No. 2
Rasida Masjid, Shastri Park, Delhi.
(Since PO)
6. Mohan @ Munna
S/o Sahdev Prasad
R/o Village Harpagri, PS Mazolea
PS Betiya, Bihar
Also at : Vega bond Shastri Bark, Delhi.
(Acquitted)
FIR No. : 25/2004
Under Sections : 399/402 Indian penal Code.
25/54/59/Arms Act
14 Indian Foreigners Act
Police Station : Shalimar Bagh
State Vs. Anwar Hussain etc., FIR No. 25/04, PS Shalimar Bagh Page 2 of 40
Date of committal to Sessions Court : 11.8.2004
Judgment reserved on : 8.12.2011
Judgment pronounced on : 4.1.2012
JUDGMENT
Brief Facts:
As per the allegations on 9.1.2004 at about 8.55 PM the present accused Mohd. Fazlu and Mohan @ Munna along with their coaccused namely Anwar Hussain (since PO), Aslam (since expired), Parajeet (since PO) and Babul (Since PO), in furtherance of their common intention, assembled at in front of Delhi Jal Board, Haiderpur, MCD Park, near Outer Ring Road, duly armed with knives and iron rods and were making preparation to commit dacoity. It is further alleged that the accused Anwar Hussain @ Natu, Aslam @ Bachchu, Fazla @ Fazlu and Babul @ Bambaiya were the found to be belonging to foreign country i.e. Bangladesh in India without any passport or visa.
Case of Prosecution in brief:
The case of the prosecution in brief is that on 9.1.2004, SI (now Inspector) Ramesh Chandra was present at his office at Special Team, Crime Branch, Prashant Vihar, Rohini when at about 6:45 PM a secret informer informed him that a Bangladeshi gang would assemble at about 9 PM in MCD Park, near Outer Ring Road State Vs. Anwar Hussain etc., FIR No. 25/04, PS Shalimar Bagh Page 3 of 40 opposite Jal Board Office, Haiderpur, duly armed and were planning commit robbery in the area of Shalimar Bagh, if raided, could be apprehended. Inspector Ramesh Chandra reduced the secret information in writing vide DD No. 14 and also informed the senior officers and on their directions he constituted a raiding party comprising of himself, ASI Ashim Ali, Ct. Dushyant, Ct. Surender, Ct. Sanjay and ASI Budh Parkash. Thereafter, at about 8:20 PM, the police party along with secret informer reached petrol pump, outer ring road where Inspector Ramesh Chandra asked 45 persons to join the raiding party but none agreed and left the spot. When the police party reached MCD park wall, the secret informed pointed towards six persons sitting there and Inspector Ramesh Chandra deputed ASI Budh Prakash to hear the conversation of the above said persons and asked him to give signal by putting his hand on his head in case if the information is found to be correct. ASI Budh Prakash complied with directions and informed the raiding party accordingly. He heard the conversation of the accused who were talking to each other saying that it was winter season and the people sleep in their houses after locking the door. He further heard accused Mohan and Babul saying that they have iron rods with which they would break open the locks of the doors of the houses; accused Fazlu was found saying that with the help of screw driver they would open the grill of the windrows. He further heard Aslam, Anwar and Paramjit saying that they have State Vs. Anwar Hussain etc., FIR No. 25/04, PS Shalimar Bagh Page 4 of 40 knives and if any person needed to be threatened, they will threaten him with knives. All the accused were saying that they will loot the whole material from the house. On hearing this, ASI Budh Prakash gave signal by putting his hand on his head after which all members of the raiding party apprehended the aforesaid six persons. The case of the prosecution is that Inspector Ramesh Chandra apprehended the accused Aslam @ Bachu (since expired) and on his search one buttondar knife was recovered; ASI Budh Prakash apprehended accused Anwar @ Nata (since PO) from whose possession one buttondar knife was recovered; ASI Hashim Ali apprehended the accused Paramjeet (since PO) from whose possession one buttondar knife was recovered, Ct. Dushyant apprehended the accused Mohan @ Munna, from whose possession iron rod was recovered; Ct. Surender apprehended the accused Babul @ Bombaiya (since PO) from whose possession one iron rod was recovered; Ct. Sanjay apprehended the accused Fazlu from whose possession one screw driver was recovered. Thereafter, all the accused were arrested, their personal search were conducted, recovered articles were sealed, seized and taken into possession by the police and after completing the investigations, the charge sheet was filed before the court. CHARGE:
Ld. predecessor of this court settled charges under State Vs. Anwar Hussain etc., FIR No. 25/04, PS Shalimar Bagh Page 5 of 40 Section 399/402 Indian Penal Code against all the accused namely Mohd. Fazlu, Mohan @ Munna, Anwar Hussain (since PO), Aslam (since expired), Paramjeet (since PO) and Babul (Since PO). Charge under Section 25/54/59 Arms Act was settled against the accused Anwar Hussain and Paramjeet (both POs) and Aslam (since expired). Further, charge under Section 14 of the Indian Foreigners Act was settled against the accused Anwar Hussain @ Natu (PO), Aslam @ Bachchu (expired), Fazla @ Fazlu and Babul @ Bambaiya (PO). EVIDENCE:
In order to discharge the onus upon them, the prosecution has examined as many as eight witnesses.
PW1 Sajjan Singh has deposed that on 10.1.2004 he was working as duty officer at Police Station Shalimar Bagh from 5 PM to 1 AM and at about 12.03 AM Ct. Sanjay brought rukka sent by SI Ramesh and on the basis of the rukka he recorded the FIR copy of which is Ex.PW1/A. The endorsement made by him on the rukka is Ex.PW1/B. In his cross examination by Ld. defence counsel the witness has stated that Ct. Sanjay came to the Police Station along with rukka at 12:03 AM. He took 20 to 25 minutes in recording the FIR and kaiyami. He returned the copy of FIR and original rukka to Ct. Sanjay by 12.36 AM.
State Vs. Anwar Hussain etc., FIR No. 25/04, PS Shalimar Bagh Page 6 of 40
PW2 ASI Budh Prakash, PW3 Ct. Sanjay, PW4 ASI Hasim Ali, PW5 Ct. Dushyant and PW6 Inspector Ramesh Chandra all are the members of raiding party who have corroborated each other on all material aspects. According to these witnesses on 9.1.2004 they were posted at Special Team, Crime Branch, Prashant Vihar, Rohini and was present in the office at about 6:45 PM when a secret informer, informed PW6 Ramesh Chandra that a Bangladeshi gang will assembled at about 9 PM in MCD Park, near Outer Ring Road opposite Jal Board Office, Haiderpur, duly armed and were making planning commit robbery in the area of Shalimar Bagh, if raided, could be apprehended. Inspector Ramesh Chandra reduced the secret information in writing vide DD No. 14 which is Ex.PW6/A and thereafter passed the information to the senior officer i.e. ACP Special Team and on their directions he constituted a raiding party comprising of himself, PW2 ASI Budh Prakash, PW3 Ct. Sanjay, PW4 ASI Hasim Ali, PW5 Ct. Dushyant under supervision of Inspector Chander Kant. According to him at about 8:20 PM, the raiding party along with secret informer reached petrol pump, outer Ring Road where he asked 45 persons to join the raiding party but none agreed and left the spot without disclosing their names and addresses. The raiding party left the Police Station vide DD No. 16 which is Ex.PW6/B and when they reached MCD Park wall and secret informer pointed towards six persons sitting State Vs. Anwar Hussain etc., FIR No. 25/04, PS Shalimar Bagh Page 7 of 40 there. PW6 Ramesh Chander deputed PW2 ASI Budh Prakash to hear the conversation of those persons and asked him to give signal by putting his hand on his head, if the information is found to be correct.
According to PW2 Budh Prakash he went near the wall by hiding himself and heard the conversation of those persons and thereafter he gave the signal by putting his hand on his head after which the members of all members of the raiding party apprehended those six persons. PW2 ASI Budh Prakash informed the raiding party that he heard the conversation of the accused persons who were talking with each other stating that it was winter season and the people normally sleep in their houses after locking the door. He further heard accused Mohan and Bahul saying that they have iron rods with which they would break open the locks of the doors of the houses; accused Fazlu was saying that with the help of screw driver they would open the grill of the windrows. PW2 ASI Budh Prakash further heard the accused Aslam, Anwar and Paramjit saying that they have knives and if any person needed to be threatened, they will threaten him with their knives. Further, all the accused were saying that they will loot the whole material from the house. According to PW3 Sanjay, he apprehended the accused Fazlu from whom possession a screw driver was recovered. PW4 ASI Asim Ali has also similarly deposed that they reached the petrol pump at about State Vs. Anwar Hussain etc., FIR No. 25/04, PS Shalimar Bagh Page 8 of 40 8.20 PM where SI Ramesh asked 45 persons to join the raiding party but none agreed and thereafter they reached MCD Park wall where secret informer pointed out towards the six persons sitting there.
According to PW4 ASI Asim Ali, he apprehended the accused Paramjit from whose possession one buttondar knife was recovered. PW6 Inspector Ramesh Chander apprehended the accused Aslam @ Bachu (since expired) and on his search one buttondar knife was recovered, PW2 ASI Budh Prakash apprehended the accused Anwar @ Nata (since PO) from whose possession one buttondar knife was recovered, PW4 ASI Hashim Ali apprehended the accused Paramjeet (since PO) from whose possession one buttondar knife was recovered, PW5 Ct. Dushyant apprehended the accused Mohan @ Munna, from whose possession iron rod was recovered, Ct. Surender apprehended the accused Babul @ Bombaiya (since PO) from whose possession one iron rod was recovered and PW3 Ct. Sanjay apprehended the accused Fazla @ Fazlu from whose possession screw driver was recovered. Thereafter, PW6 Inspector Ramesh Chandra prepared the sketches of the knives recovered from the accused Aslam (since expired), Anwar and Paramjit (both PO). According to the witness on measuring the length of the blade of the knife recovered from Aslam, it was found to be 11 cm and length of its handle was found to be 13.3 cm and the total length was found to be 24.3 cm and its sketch is Ex.PW2/C. Thereafter the knife was State Vs. Anwar Hussain etc., FIR No. 25/04, PS Shalimar Bagh Page 9 of 40 turned into pullanda sealed with the seal of RCM which was taken into possession vide seizure memo Ex.PW2/F. PW6 had measured the length of the blade of the knife recovered from Anwar and it was found to be 10.5 cm and length of its handle was 13.5 cm and the total length was 24 cm which sketch is Ex.PW2/A after which the knife was turned into pullanda sealed with the seal of RCM and taken into possession vide seizure memo Ex.PW2/D. According to PW6, the length of the blade of the knife recovered from Paramjit was found to be 11 cm and length of its handle was found to be 13 cm and the total length was found to be 24 cm with its sketch which is Ex.PW2/B after which the knife was turned into pullnada sealed with the seal of RCM and taken into possession vide seizure memo Ex.PW2/E. According to him, the screw driver recovered from the accused Fazla was turned into pullanda sealed with the seal of RCM and taken into possession vide memo Ex.PW2/J, the iron rod recovered from the accused Mohan was turned into pullanda sealed with the seal of RCM and taken into possession vide memo Ex.PW2/H and the iron rod recovered from the accused Bablu was turned into pullanda sealed with the seal of RCM and taken into possession vide memo Ex.PW2/G. The witness PW6 Inspector Ramesh Chandra has further deposed that the seal after use was handed over to ASI Budh Prakash. He thereafter prepared rukka and State Vs. Anwar Hussain etc., FIR No. 25/04, PS Shalimar Bagh Page 10 of 40 handed over the same to Ct. Sanjay who went to the Police Station and got the present case registered. Thereafter, SI Sanjeev Kumar reached at the spot to whom further investigations were handed over who prepared the site plan at the instance of PW6 Inspector Ramesh Chandra.
All these witnesses have identified the accused in the court. They have also identified the case property i.e. buttondar knife Ex.P1 as recovered from the accused Aslam; buttondar knife Ex.P2 as the same as recovered from the accused Anwar; buttondar knife Ex.P3 as the same as recovered from the accused Paramjit; iron rod Ex.P4 as the same as recovered from the accused Mohan; iron rod Ex.P5 as the same as recovered from the accused Bablu; screw driver Ex.PW6 as the same as recovered from the accused Fazlu.
All these witnesses / members of raiding party i.e. PW2 ASI Budh Prakash, PW3 Ct. Sanjay, PW4 ASI Hasim Ali, PW5 Ct. Dushyant and PW6 Inspector Ramesh Chandra have been duly cross examined by Ld. defence counsel. PW2 ASI Budh Prakash has stated that the entire police team left the police station at about 8.10 PM by a Qualis car and they all were without uniform. He deposed that there were many employees at petrol pump but the members of the raiding party did not ask any of them to join the proceedings. According to him the accused were sitting behind the bushes in the park but were visible. He is not aware if the bushes were shown in the site plan. He State Vs. Anwar Hussain etc., FIR No. 25/04, PS Shalimar Bagh Page 11 of 40 has denied the suggestion that he never heard the conversation between the accused. According to him, the accused were sitting together and when the torch was flashed on them they did not move and the police party surrounded them. He has denied the suggestion that the accused were not making any such preparation as stated by him. PW3 Ct. Sanjay in his cross examination has stated that only SI Ramesh was having a pistol and all other members were unarmed. According to him all the members proceeded towards the accused from different directions. He has deposed that he left the spot along with rukka at 11;35 PM on the qualish car. PW6 Inspector Ramesh Chandra in his cross examination has deposed that he had produced the secret informer before the ACP Spl. Team. According to him the departure entry was made when they left the police station but he does not remember whether the place where they had to conduct the raid is mentioned in the said departure entry. He also does not remember whether he had mentioned that the raiding party members had been briefed up about the place where the raid was to be conducted and also about the purpose of conducting the raid. When the attention of the witness was drawn to DD No. 16 Ex.PW6/B this fact of place of raid and also purpose of raid has not been found mentioned. Witness has voluntarily added that the oral instructions were already given to the members of the raiding party and this fact finds specific mention in the DD No. 14 that the team was going to State Vs. Anwar Hussain etc., FIR No. 25/04, PS Shalimar Bagh Page 12 of 40 the spot as per the information given by the secret informer. He has admitted that there is very heavy movement of traffic on the outer ring road where the MCD park is situated. He has admitted that he did not noted down the names and addresses of 45 public persons who refused to join the raiding party and also did not serve any legal notice upon them on their refusal. He has denied the suggestion that there were two entries / exit gates of the said parks opening towards petrol pump. He has denied that the petrol pump is just adjoining the park. According to him he had not asked the owner / manager of petrol pump to join the proceedings and has voluntarily added that he had asked the employees of the petrol pump to join the proceedings but due to their preoccupations they refused and further states that he had not not down the names and addresses of these employees. He has also denied that they were not able to see the accused persons from the spot where they were deputed and has voluntarily added that they were standing at a distance. He admits that he was able to see ASI Budh Prakash and states that the site plan was prepared at his instance. He does not recollect whether he had told the IO about the spot from where ASI Budh Prakash had overheard the alleged conversation between the accused but has thereafter again said it was he who had shown this spot to the IO. When the witness has been shown the Ex.PW7/A and according to him ASI Budh Prakash was standing at point A from where he overheard the alleged State Vs. Anwar Hussain etc., FIR No. 25/04, PS Shalimar Bagh Page 13 of 40 conversation between the accused persons. He has denied that the security guards remained present in the park. According to him the distance between the spot where the alleged conversation was going on between the accused and also the place where ASI Budh Prakash was standing and from where he overhead the conversation from a distance of about 1520 feet. He has further denied that it is difficult to hear conversation inside the park on account of movement of heavy traffic outside and blowing of pressure horns by heavy vehicles including roadways buses and trucks. He admits that that similar type of articles as recovered from the accused are easily available in the market. He does not recollect the time when ASI returned the seal to him. According to him Ct. Sanjay had left the spot along with rukka at about 11:35 PM. He has denied that the signatures of the accused were taken on blank documents which were later converted into various memos. He has further denied that ASI Budh Prakash had not overheard any conversation as alleged by him or that accused persons were not present in the park at the time of the alleged incident.
PW7 Inspector Sanjeev Kumar reached the spot at about 11:30 PM on 9.1.2004 and found the accused persons in the custody of Inspector Ramesh Chander. He prepared the site plan Ex.PW7/A at the instance of Inspector Ramesh Chander and recorded the statements of witnesses. Thereafter he arrested the State Vs. Anwar Hussain etc., FIR No. 25/04, PS Shalimar Bagh Page 14 of 40 accused persons, conducted their personal search and prepared their body inspection memos which are Ex.PW7/B to PW7/G. He thereafter prepared the charge sheet and filed before the court.
In his cross examination by Ld. defence counsels, the witness has admitted that he did not obtain the signatures of SI Ramesh on the site plan. He has further admitted that the exact place where the decoy witness had overheard the conversation of the accused is not shown in the site plan. He has deposed that the place of apprehension of the accused is collectively shown at points A and B in the site plan. He has admitted that the spot of occurrence remains very noisy because of movement of heavy traffic but has denied the suggestion that the security guard was present at the MCD park at the time of incident. He has further denied that the entire writing work was done at the police station or that he had not done the investigations fairly and properly. He has denied the suggestion that he had information that the accused persons are Bangladeshi. He has also denied the suggestion that the accused had been falsely implicated.
PW8 HC Subhash was posted as MHC (MH) on 5.1.2004. According to him on that day SI Ramesh Chander had deposited one seal parcel containing screw driver, on sealed parcel containing button actuated knife, one iron rod, all duly sealed with the seal of RCM, another iron rod duly sealed with the same seal State Vs. Anwar Hussain etc., FIR No. 25/04, PS Shalimar Bagh Page 15 of 40 alongwith the jamatalasi of accused persons. He made the entry vide No. 2242 in Register No. 19 which copy is Ex.PW8/A. In his cross examination the witness has denied the suggestion that the entry made by him are antetime and antedated and have been fabricated at the instance of the investigating officer.
Statement of Accused and Defence Evidence:
After completing the prosecution evidence, statement of accused before this court i.e. Mohd. Fazlu and Mohan @ Munna was recorded under Section 313 Code of Criminal Procedure in which all the incriminating evidence / material was put to them which they have denied. However, they have not examined any witness in defence. According to the accused Mohd. Fazlu and Mohan @ Munna they have been falsely implicated by the police after lifting from their respective houses. They have stated that they were not even present at the spot of alleged incident and nothing was recovered from their possession.
The accused Fazlu has examined himself as DW1 wherein he has deposed that he is labourer by profession and is residing in Delhi since his childhood. According to him he was born at Kolkata, West Bengal. He deposed that previously he was residing at C19A/354, Sanjay Amar Colony, Yamuna Pushta, Delhi till the year 2004 when the colony was removed by the authorities. He has placed on record the copy of ration card Ex.DW1/A and copy of State Vs. Anwar Hussain etc., FIR No. 25/04, PS Shalimar Bagh Page 16 of 40 PAN Card Ex.DW1/B. He has also placed on record the copy of acknowledgment issued by UID Authority dated 31.10.2011 for Aadhar Card which copy is marked as MarkA In his cross examination by Ld. Addl. PP for the State, the accused Fazlu has deposed that he is not having any birth certificate or proof showing his birth place and states that his parents brought the family at Delhi when he was aged about 78 years. According to him he was not admitted in any school in West Bengal therefore he cannot produce any school certificate showing that he was born at Kolkata. He is also unable to produce any school certificate showing that he studied at Delhi. He has also admitted that he not give any document in support of his address when he got the the ration card issued nor he placed any proof of his residence or school certificate alongwith the application form for getting the ration card issued. He has deposed that he does not have any voter identity card till date but states that he got the PAN card issued on the basis of ration card copy of which is Ex.DW1/A. He has denied that the above said ration card is forged one and he got the PAN card issued on the basis of forged ration card. According to him his marriage with Zarina was solemnized about 2627 years back at Delhi at Yamuna Pushta. He is unable to produce any Nikahnama and has voluntarily added that the same was destroyed in a fire in the colony.
State Vs. Anwar Hussain etc., FIR No. 25/04, PS Shalimar Bagh Page 17 of 40 FINDINGS:
I have heard the arguments advanced before me by the Ld. Addl. PP for the State and the Ld. Defence Counsel. I have also considered the testimonies of various witnesses examined by the prosecution.
The case of the prosecution is that on 9.12004 at about 6:45 a secret information was received by Inspector Ramesh Chandra in the office of Special Team, Crime Branch, Prashant Vihar, Rohini that a Bangladeshi gang would assemble at about 9 PM in MCD Park, near Outer Ring Road opposite Jal Board Office, Haiderpur, duly armed and were making planning commit robbery in the area of Shalimar Bagh, who if raided, could be apprehended, which information was reduced in to writing vide DD No. 14 and was also passed on to senior officer and on instructions constituted a raiding party comprising of himself, ASI Asim Ali, Ct. Dushyant, Ct. Surender, Ct. Sanjay and ASI Budh Parkash and at about 8:20 PM they left the police station along with secret informer and reached Petrol Pump, Outer Ring Road and on the way Inspector Ramesh Chandra asked 45 public persons to join the raiding party but none agreed. Thereafter, when the police party reached MCD park wall, the secret informed pointed towards six persons sitting there and Inspector Ramesh Chandra deputed ASI Budh Prakash to hear the conversation of the those persons and asked him to give signal by State Vs. Anwar Hussain etc., FIR No. 25/04, PS Shalimar Bagh Page 18 of 40 putting his hand on his head, if the information is found to be correct. According to the prosecution case, ASI Budh Prakash went near those persons and heard their conversation who were talking each other that it a winter season and normally people sleep in their houses after locking the door. ASI Budh Prakash further heard accused Mohan and Bahul saying that they have iron rods with which they would break open the locks of the doors of the houses; accused Fazlu was found saying that with the help of screw driver they would open the grill of the windows and Aslam, Anwar and Paramjit were saying that they have knives and if any person needed to be threatened, they would threaten him with their knives. Further, all the accused were saying that they will loot the whole material from the house. According to ASI Budh Prakash, he thereafter, gave the signal to the raiding party by putting his hand on his head after which the members of the raiding party apprehended the aforesaid six persons. According to the prosecution case, Inspector Ramesh Chandra apprehended the accused Aslam @ Bachu (since expired) and on his search one buttondar knife was recovered; ASI Budh Prakash apprehended accused Anwar @ Nata (since PO) from whose possession one buttondar knife was recovered; ASI Hashim Ali apprehended the accused Paramjeet (since PO) from whose possession one buttondar knife was recovered, Ct. Dushyant apprehended the accused Mohan @ Munna, from whose possession State Vs. Anwar Hussain etc., FIR No. 25/04, PS Shalimar Bagh Page 19 of 40 iron rod was recovered; Ct. Surender apprehended the accused Babul @ Bombaiya (since PO) from whose possession one iron rod was recovered; Ct. Sanjay apprehended the accused Fazla @ Fazlu from whose witnesses screw driver was recovered and thereafter, all the accused persons were were arrested.
The accused before this court namely Fazlu and Mohan @ Munna have been duly identified by the witnesses in the court, all of whom are the police officials. The site plan Ex.PW7/A was prepared by SI Sanjeev Kumar at the instance of Inspector Ramesh Chandra. I have duly perused the site plan which shows that MCD Park is situated near the Delhi Jal Board office and there is motorable road having heavy traffic and outer ring road on one side and service road leading towards Pitampura and Shalimar Bagh on the other side.
All the witnesses examined in the court are police officials. PW1 Sajjan Singh is the duty officer who has proved the registration of the FIR, PW2 ASI Budh Prakash, PW3 Ct. Sanjay, PW4 ASI Asim Ali, PW5 HC Dushyant and PW6 Inspector Ramesh Chandra are all members of the police party who have gone to the spot and allegedly apprehended the accused and have proved their arrest, whereas PW7 Inspector Sanjeev Kumar has joined the investigations later after the registration of the case and PW8 HC Subhash is the MHC (M) who has proved the entries in Register No. 19 vide Ex.PW8/A. State Vs. Anwar Hussain etc., FIR No. 25/04, PS Shalimar Bagh Page 20 of 40 It is evident from the record that despite there being opportunity to join the public witnesses and their availability the area being surrounded by heavy motorable road where large number of passersby's are available and also the Delhi Jal Board office situated in the vicinity where some official would have been available round the clock, no person had been joined in the proceedings either at the time apprehension of the accused or at the time of seizure of articles i.e. iron rod and screw driver. No doubt, the apprehension of the accused Fazlu along with screw driver and Mohan @ Munna along with iron rod, has been duly proved by the police witnesses at the spot, but in so far as the allegations regarding the accused making preparation for committing the dacoity are concerned, it is not safe to rely upon the sole testimony of these police witnesses in the absence of any independent corroboration.
I am also not oblivious of the fact that merely because public witnesses have not been joined, would not be a ground to throw away the case of the prosecution. Indeed, the police witnesses are competent witnesses but in a case where public witnesses are not joined, the evidence of the police witnesses have to be scrutinized with great care and caution and it must be seen if it has a ring to truth around it and inspires confidence. Once the public persons were available in the vicinity, they would certainly have heard the noise and gathered around the place and could have easily been joined in State Vs. Anwar Hussain etc., FIR No. 25/04, PS Shalimar Bagh Page 21 of 40 the investigation which surprisingly did not happen. Therefore, in view of the above, the uncorroborated testimonies of these police officials have to be read with caution. Further, the testimonies of all the police witnesses show that the police party had prior information regarding the presence of the accused at the spot for making preparation to commit dacoity. All the members of the police party were admittedly carrying their mobiles and there were sufficient opportunities for them to have arranged some sophisticated gadgets like recorders for recording any conversation of those boys at the spot, which again surprisingly did not happen in the present case. Simply to say that the police personnel i.e. ASI Budh Prakash had hidden himself and heard the conversation of the accused persons, would not be sufficient. The members of the police party who have deposed that they have heard the conversation, could have recorded the said conversation on their mobile phones, which has not been done.
Further, the testimonies of all the police witnesses are full of inconsistencies and contradictions with regard to the time of incident, surroundings of the place of incident, presence of public persons in the park, time of apprehension and arrest of the accused persons, preparation of various memos, etc. and do not inspire confidence of the case put forward by the prosecution. The version given by these witnesses do not find any corroboration from any State Vs. Anwar Hussain etc., FIR No. 25/04, PS Shalimar Bagh Page 22 of 40 independent source and does not appears plausible. How convenient it is for these police witnesses to depose in chorus without any regards for established norms of Criminal Law. It is also totally unbelievable and does not appeal to the mind that the accused would take the risk of exposing themselves by collecting at public place and publicly discuss their plans for dacoity. Non joining of public witnesses during the proceedings coupled with tamed and twisted evidence by the police witnesses leave a grave doubt in the mind of this court about the allegations made against the accused persons.
In this scenario, I hereby hold that though the apprehension of the accused before this court i.e. Mohd. Fazlu and Mohan @ Munna, has been proved but the prosecution has miserably failed to bring home any cogent, reliable or trustworthy evidence on record that on 9.1.2004 at about 8.55 PM the present accused Mohd. Fazlu and Mohan @ Munna along with their coaccused namely Anwar Hussain (since PO), Aslam (since expired), Parajeet (since PO) and Babul (Since PO), in furtherance of their common intention, assembled at in front of Delhi Jal Board, Haiderpur, MCD Park, near Outer Ring Road, duly armed with knives and iron rods and were making preparation to commit dacoity in the area. Therefore, in view of the above discussions, I hereby acquit the accused before this court namely Mohd. Fazlu and Mohan @ Munna from charges under Section 399/402 Indian Penal Code.
State Vs. Anwar Hussain etc., FIR No. 25/04, PS Shalimar Bagh Page 23 of 40
Coming now to the charge framed against the accused Fazlu under Section 14 of the Foreigners Act, I may observe that as per the provisions of Section 9 of Foreigners Act the onus of proof that the accused is not a foreigner of a particular class or description would lie upon such person that is the accused. The question whether the accused Fazlu @ Fazla is a foreigner is a question of fact which is disputed by the accused and hence required evidence. By reason of Section 9 of the Foreigners Act whenever a question arises whether a person is or is not a foreigner, the onus of proving that he is not a foreigner lies upon the accused. Hence, it is writ large that under Section 9 the burden of proving that he is an Indian citizen in the manner claimed by him and thus not a foreigner lies upon the accused and unless he discharges that burden, he cannot claim an exemption from the operation of Foreigners Act [Ref.: Fateh Mohd. Vs. The Delhi Administration reported in AIR 1963 SC 1035) and Masud Khan Vs. State of Uttar Pradesh reported in AIR 1974 SC 28 and Sarbananda Sonowall (II) Vs. Union of India reported in 2007 (1) SCC 174].
The case of the prosecution is that when apprehended the accused Fazlu disclosed that he was a Bangladeshi national being a resident of Village Aminnatala, Police Station Shivchar, District Madaripur, Bangladesh. It is also the case of the prosecution that Fazlu a Bangladeshi national had not been able to produce any State Vs. Anwar Hussain etc., FIR No. 25/04, PS Shalimar Bagh Page 24 of 40 document to explain and justify his stay in India. This being the background, the onus of proving that he is not a foreigner, now shifts upon the accused Fazlu @ Fazla (Section 9 of the Foreigners Act). In order to discharge the onus upon him, the accused Fazlu has placed before this Court a Ration Card claiming that the same has been issued to him. He has also placed before the Court a Kerosene Oil Card issued on the basis of the above Ration Card. I may observe that in so far as the Kerosene Oil Card is concerned, it has been issued on the basis of the Ration Card so relied upon by the accused and therefore, it become necessary to ascertain if this Ration Card which the accused has placed before this Court is a genuine document or not. In order to ascertain the genuineness and authenticity of the same, the Ration Card and the Kerosene Oil Card were sent to FRRO (Foreigners Regional Registration Officer) for verification which report has been received.
As per the report of the FRRO (Foreigners Regional Registration Officer) dated 2.1.2012 an inquiry was got conducted which revealed that initially this ration card was issued in the year 1998 from Circle No. 58 Central District on the address of C19/A/354, Sanjay Amar Colony, Delhi situated at Yamuna Pushta. This Yamuna Pushta colony was shifted to Bawana JJ Colony and the ration card was required to be renewed on the new address but the holder of this car did not do so and as per the report received State Vs. Anwar Hussain etc., FIR No. 25/04, PS Shalimar Bagh Page 25 of 40 from FSO, Circle No. 21 no record is available with them for this ration card. Further, verification was got conducted from FSO Circle No.7, Bawana who reported that no record of the above mentioned ration card was available with them as the person did not report to them for any purpose. It is further mentioned in the report that at the time of shifting of Sanjay Amar Colony from Yamuna Pushta to Bawana, the Delhi Development Authority had punched the ration card/ kerosene card of the residents of Yamuna Pushta to avoid misuse of ration card to get the allotment of plot again at Bawana but the said ration card has not been punched. As per the version of the FSOs both of Circle No. 7 and 21 the above Ration Card is not in existence.
Further, this Court has also observed by the naked eye that there appears to be a tampering in the ration card whereby the old entries have been got erased and new entries appeared to have been inserted. In fact there is an overwriting in most of the entries. The signatures of the issuing authority and the date of issue has been destroyed and are not visible. Further, the number on which the Ration Card has been issued appeared to have been changed.
The accused Fazlu @ Fazla has also examined himself as his own witness as DW1 and in his crossexamination he has admitted that he has no birth certificate or proof showing his birth place. According to him, his parents had brought him to Delhi when State Vs. Anwar Hussain etc., FIR No. 25/04, PS Shalimar Bagh Page 26 of 40 he was aged about seven to eight years. When asked if he was admitted in any school in West Bengal, or can produce any school certificate showing that he was born at Kolkata or had studied there, he denied the same and stated that he cannot produce any such document. Further, according to the accused he had studied upto three classes in Delhi but he has not been able to produce any document to prove that he had studied in Delhi. The accused was also questioned as to whether he had given any document in support of his address when he got the above ration card Ex.DW1/A issued or if he had given any proof of his residence or school certificate along with the application form for getting the ration card issued, on which he clarified that he had not placed any proof of residence along with the application for getting the ration card issued but soon thereafter again stated that he did not remember the documents which he had annexed at the time of getting the ration card issued. The accused further added that on the basis of this ration card he had also got issued a PAN card in his name.
I have gone through the deposition of the accused which reflects that he has two wives living with him in India. According to him, he had married to Zarina about 2627 years ago at Yamuna Pushta and has married Parul about 1011 years ago but has not been able to produce the Nikahnama of either of the marriages nor he has been able to give the details with regard to the background of his State Vs. Anwar Hussain etc., FIR No. 25/04, PS Shalimar Bagh Page 27 of 40 wives Zarina and Parul. When asked about the country to which Zarina and Parul belonged, he was unable to give any definite reply stating that he is not aware to which State or Country his wives Zarina and Parul belonged i.e. whether to India or Bangladesh. He has not been able to place any document regarding the citizenship of Zarina and Parul.
It is writ large from the above Firstly that the accused Fazlu has not been able to produce any document to establish that he was brought up born in India. In case if the accused would have been an India at least he would have been able to place on record the village & district where he was born or where his family had stayed on which aspects he was evasive. Secondly he has not been able to place on record any document to show that he had studied till three four classes in Delhi nor he has been able to give the details of his schooling or any document to show that he had studied in Delhi. Had the accused been an Indian citizen and would have studied in any school in Delhi the least that he could have done was to give the name of the school or the persons who studied with him which he did not do. Thirdly he has evaded to give answers when questioned about the background of his wives and their families nor he has been able to place on record any Nikahnama proving that he was married in Delhi. Had that been so that accused would have been married in Delhi even in case the Nikahnamas were not available, he would State Vs. Anwar Hussain etc., FIR No. 25/04, PS Shalimar Bagh Page 28 of 40 have produced secondary evidence of the marriage by examining the Quazi who had performed his marriage. Fourthly the accused has also evaded the question whether his wives belonged to India or Bangladesh. It is not possible that the accused would not be aware of the background of his wives or the area/ village/ state to which they belonged. The only reason for the accused to have suppressed this aspect is perhaps to conceal the backgrounds of his wives and their families who it appears are also from Bangladesh and also conceal his own identity. Lastly merely because a person is staying in India for a long time does not persee confer any right of citizenship upon him. Even the Division Bench of the Delhi High Court headed by the then Hon'ble Chief Justice in the case of Chetan Dutt Vs. Union of India & Ors. in CM No. 10683/2003 in CW No. 3170/2001 dated 24.9.2003 and 8.9.2004 had wondered how Ration Cards were being issued to illegal migrants and had further observed that control price food grans were to be supplied to the needy citizens of this Country and not to the illegal migrants. Further, the Hon'ble Delhi High Court had further brought to the notice of the Election Commission the fact that many of these illegal migrants had also been issued the election cards.
The Ration Card placed on record is a fake document and the PAN card and Kerosene Oil Card obtained on the basis of the above fake document i.e. Ration Card also do not confer any right State Vs. Anwar Hussain etc., FIR No. 25/04, PS Shalimar Bagh Page 29 of 40 upon him. The onus of proving that he is an Indian National shifted upon the accused Fazlu @ Fazla, which he has failed to discharge. Ld. Addl. PP for the State has submitted that as per the information given to him by the Investigating Officer the accused is a permanent resident of Bangladesh where he is maintaining his original family. He has also pointed out that the accused is involved in large number of criminal cases in Delhi from Central District.
After considering the material on record it stands established that the accused Fazlu @ Fazla who is a foreigner being a Bangladeshi National entered India without any valid travel documents i.e. Passport or Visa and has staying in India. Any person who is not a citizen of India and a foreigner within the meaning of Section 2 (a) (iii) of the Foreigners Act, has no right to remain in this territory and such a foreigner is required to leave India. The Foreigners (Proof of Identity) Order require every Foreigner to be in possession of Passport or any other travel document for purposes of entering into India which he should have in his possession and is liable to be produced to the demand of the police officer concerned. Further, the Registration of Foreigners (Bangladesh) Rules requiring any person who is a citizen of Bangladesh to be present in person to the Registering Authority. This Court can take a note that there are around three Crores Bangladeshi in India and as per the order of the Delhi High Court in the case of Chetan Dutt Vs. Union of India & State Vs. Anwar Hussain etc., FIR No. 25/04, PS Shalimar Bagh Page 30 of 40 Ors. in CM No. 10683/2003 in CW No. 3170/2001 decided on 24.9.2003, at least 100 Bangladeshi are required to be deported per month.
This being the background, the accused Fazlu @ Fazla a foreigner being a Bangladeshi National has not been able to produce any document with regard to his proof of identity in the form of passport or any other travel documents [Ref.: Foreigners (Proof of Identity) Order], had never appeared in person before the competent registering authority [Ref.: Foreigners (Bangladesh) Rules] and during his stay had committed offences under IPC and other Acts (Foreigners Act) for which reason he is hereby held guilty of the offence under Section 14 of Foreigners Act and accordingly convicted.
Be listed for arguments on sentence qua the convict Fazlu@ Fazla on 9.1.2012.
Announced in the open court (Dr. KAMINI LAU)
Dated: 4.1.2012 ASJ (NW)II: ROHINI
State Vs. Anwar Hussain etc., FIR No. 25/04, PS Shalimar Bagh Page 31 of 40
IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS
JUDGEII (NORTHWEST): ROHINI COURTS: DELHI
Sessions Case No. 104/2011
Unique Case ID: 02404R5245092004
State Vs. 1. Anwar Hussain @ Nata
S/o Samad Ali
R/o Village Aminnatala,
PS Shivchar, Distt. Madaripur,
Bangladesh.
Also at: Jhuggi No. C19A/90, Bihari Basti
Sanjay Amar Colony,
Yamuna Pusta, Delhi.
(Since PO)
2. Aslam @ Bachchu
S/o Ohab
R/o Village Buraitala,
PS Rajour, Distt. Faridpur,
Bangladesh
Also at: House No. 253, Gali No. 2,
Near Rasida Masjid,
Shahstri Park, Delhi.
(Since Expired)
3. Fazla @ Fazlu
S/o Samad Ali
R/o Village Aminnatala,
PS Shivchar, Distt. Madaripur,
Bangladesh.
State Vs. Anwar Hussain etc., FIR No. 25/04, PS Shalimar Bagh Page 32 of 40
Also at: House of Nand Lal, Gali No. 3
C Block, Kachchi Colony, Khajuri
Shri Ram Colony, Delhi.
(Convicted)
4. Paramjeet @ Sonu
S/o Rajesh Singh
R/o Mohalla Rajinder Nagar, Bazar
Samiti Patna, Bihar.
Also at : Vega Bond, Company Bagh, Delhi.
(Since PO)
5. Babul @ Bambaiya
S/o Opu
R/o Village Lalbagh, PS Kilarmore
Distt.: Daka, Bangladesh
Also at : House of Munna Master, Gali No. 2
Rasida Masjid, Shastri Park, Delhi.
(Since PO)
6. Mohan @ Munna
S/o Sahdev Prasad
R/o Village Harpagri, PS Mazolea
PS Betiya, Bihar
Also at : Vega bond Shastri Bark, Delhi.
(Acquitted)
FIR No. : 25/2004
Under Sections : 399/402 Indian penal Code.
25/54/59/Arms Act
14 Indian Foreigners Act
Police Station : Shalimar Bagh
State Vs. Anwar Hussain etc., FIR No. 25/04, PS Shalimar Bagh Page 33 of 40
Date of conviction : 4.1.2012
Arguments heard on : 9.1.2012
Date of sentence : 21.1.2012
APPEARANCE:
Present: Sh. Taufique Ahmed, Addl. Public Prosecutor for the
State.
Convict Mohd. Fazlu in judicial custody with Amicus Curiae Sh. Aseem Bhardwaj, Advocate.
ORDER ON SENTENCE:
Vide separate detailed judgment dated 4.1.2012 the accused Mohd. Fazlu and Mohan @ Munna have been acquitted from the charges under Section 399/402 Indian Penal Code. However, the accused Mohd. Fazlu has been held guilty for the offence under Section 14 of the Indian Foreigners Act.
As per the allegations on 9.1.2004 at about 8.55 PM the present accused Mohd. Fazlu and Mohan @ Munna along with their coaccused namely Anwar Hussain (since PO), Aslam (since expired), Parajeet (since PO) and Babul (Since PO), in furtherance of their common intention, assembled at in front of Delhi Jal Board, Haiderpur, MCD Park, near Outer Ring Road, duly armed with State Vs. Anwar Hussain etc., FIR No. 25/04, PS Shalimar Bagh Page 34 of 40 knives and iron rods and were making preparation to commit dacoity. It is further alleged that the accused Mohd. Fazlu @ Fazla, Anwar Hussain @ Natu (Since PO), Aslam @ Bachchu (Since PO) and Babul @ Bambaiya (Since PO) were Foreigners being Bangladeshi Nationals and stayed in India without any passport or visa.
However, on the basis of the testimonies of various witnesses and other material placed on record, vide separate detailed judgment dated 4.1.2012 the accused Mohd. Fazlu and Mohan @ Munna have been acquitted from the charges under Section 399/402 Indian Penal Code. However, the accused Mohd. Fazlu has been held guilty for the offence under Section 14 of the Indian Foreigners Act since he has not been able to produce any document with regard to his proof of identity in the form of passport or any other travel documents [Ref.: Foreigners (Proof of Identity) Order], had never appeared in person before the competent registering authority [Ref.: Foreigners (Bangladesh) Rules] and during his stay had committed offences under IPC and other Acts (Foreigners Act).
Heard arguments on the point of sentence. It is stated by the accused that he is aged about 47 years, married having two wives namely Parul from whom he has three daughters and two sons and Zarina from whom he has two sons and is doing the work of dye State Vs. Anwar Hussain etc., FIR No. 25/04, PS Shalimar Bagh Page 35 of 40 punching. He now states that he is totally illiterate (earlier he had stated that he had studied upto class 34) and has already remained in Judicial Custody for about two months and nine days. The details of his other involvements as given by the Investigating Officer are as under:
1. FIR No. 225/06, PS Civil Lines, under Section 25 of Arms Act.
2. FIR No.463/2001, PS Kotwali, under Section 379/411 IPC.
3. FIR No.181/2002, PS Kotwali, under Section 25 of Arms Act.
4. FIR No.237/2001, PS Kotwali, under Section 25 of Arms Act.
5. FIR No.226/1995, PS Kotwali, under Section 25 of Arms Act.
6. FIR No.157/2001, PS Kotwali, under Section 25 of Arms Act.
7. FIR No.27/2005, PS Chandni Chowk, under Section 25 Arms Act.
Ld. Amicus Curiae appearing on behalf of the convicts has vehemently argued that the convict is the only bread earner of the family comprising of seven children and any harsh view would be detrimental for the entire family. He requests that keeping in view the age and family background of the convict, a lenient view be taken against him. The Ld. Addl. PP for the State on the other hand has prayed that a strict punishment be awarded to the convict keeping in view the nature of allegations involved.
I have considered the rival contentions. I may observe State Vs. Anwar Hussain etc., FIR No. 25/04, PS Shalimar Bagh Page 36 of 40 that the convict Fazlu @ Fazla is a Foreigner being Bangladeshi has and as per the information provided by the Investigating Officer he is maintaining a family in Bangladesh but in an attempt to create his rights in India is also maintaining a family consisting of two wives (whose citizenship he has withheld from the Court) and seven children in India. Further, as per information from the Investigating Officer the convict Fazlu taking advantage of the porous boarder, frequently crosses over and while in India has involved himself in number of criminal cases.
Here, I may further observe that during the trial of the present case, the convict Fazlu in order to prove that he is an Indian National, placed before this Court a Ration Card allegedly in his name which on the face of it was a fake and fabricated document which he did only to evade the present proceedings under the Foreigners Act and to legalize his stay in the Country. The verification report establishes that as per the version of the FSOs both of Circle No. 7 and 21 the above Ration Card is not in existence. This Ration Card was also sent to FSL and as per the report received from Sh. Anurag Sharma, Senior Scientific Officer (Documents), FSL, Delhi it stands established that the said Ration Card had been chemically washed thereby conclusively proving the tampered nature of the Ration Card.
This being the background, the convict Fazlu @ Fazla had State Vs. Anwar Hussain etc., FIR No. 25/04, PS Shalimar Bagh Page 37 of 40 tried to mislead the Court by placing before this Court a fake and fabricated document (Ration Card) only to evade the present proceedings under the Foreigners Act and to legalize his stay in India. It is unfortunate that while genuine citizens of this Country continue to suffer in abject poverty, it is petty vote bank politics which prevents a firm, resolute, intense government action against the three crores (official figures) Bangladeshi Nationals illegally staying in our country, enjoying all the benefits which otherwise are the entitlements of citizens thereby compelling the Courts to step in. Even the Division Bench of the Delhi High Court headed by the then Hon'ble Chief Justice in the case of Chetan Dutt Vs. Union of India & Ors. in CM No. 10683/2003 in CW No. 3170/2001 dated 24.9.2003 and 8.9.2004 had wondered how Ration Cards were being issued to illegal migrants and had further observed that control price food grans were to be supplied to the needy citizens of this Country and not to the illegal migrants. Further, the Hon'ble Delhi High Court had further brought to the notice of the Election Commission the fact that many of these illegal migrants had also been issued the election cards.
Fazlu a Bangladeshi National deserves no leniency not only because he is a Foreign National who was found in the territory of India but also because during his stay in India at various points of time, he was involved in criminal activities (Ref.: FIR No. 225/06, State Vs. Anwar Hussain etc., FIR No. 25/04, PS Shalimar Bagh Page 38 of 40 PS Civil Lines; FIR No.463/2001, PS Kotwali; FIR No.181/2002, PS Kotwali; FIR No.237/2001, PS Kotwali; FIR No.226/1995, PS Kotwali; FIR No.157/2001, PS Kotwali and FIR No.27/2005, PS Chandni Chowk). Further, during the proceedings in the present case he used a forged and fabricated Ration Card before this Court knowing the same to be forged document in order to fabricate and create an evidence in his favour to legalize his stay in India. A person who has no respect for law deserves no leniency and under no circumstances can the Court permit the use of this land by non citizens and foreigners for illegal and criminal activities. Therefore, under these circumstances, I hereby sentence the convict Fazlu @ Fazla to Rigorous Imprisonment for a period of Four years and fine to the tune of Rs.2,000/. In default of payment of fine the convict shall further undergo Simple Imprisonment for a period of one week. Benefit of section 428 Cr.P.C. shall be given to the convict for the period already undergone by him during the trial, as per rules. Immediately after the completion of the period of his sentence the competent authority is directed to deport the convict Fazlu @ Fazla to Bangladesh in accordance with law.
The convict is informed that he has a right to prefer an appeal against this judgment. He has been apprised that in case he cannot afford to engage an advocate, he can approach the Legal Aid State Vs. Anwar Hussain etc., FIR No. 25/04, PS Shalimar Bagh Page 39 of 40 Cell, functioning in Tihar Jail or write to the Secretary, Delhi High Court Legal Services Committee, 3437, Lawyers Chamber Block, High Court of Delhi, New Delhi.
One copy of the judgment and order on sentence be given to the convict free of costs and one of order on sentence be attached with his jail warrant.
File be consigned to Record Room to be taken up on arrest of coaccused Anwar Hussain (since PO), Aslam (since expired), Paramjeet (since PO) and Babul (Since PO).
Announced in the open court (Dr. KAMINI LAU)
Dated: 21.01.2012 ASJ (NW)II: ROHINI
State Vs. Anwar Hussain etc., FIR No. 25/04, PS Shalimar Bagh Page 40 of 40