Delhi District Court
Fir No:141/06; Ps Welcome; U/S 399/402 ... vs . Nadim & Ors. on 15 November, 2010
1 FIR NO:141/06; PS WELCOME; U/S 399/402 IPC R/W 25/54/59 ARMS ACT; STATE VS. NADIM & ORS. IN THE COURT OF SH. B.S. CHUMBAK:ADDL. SESSIONS JUDGE DELHI Case ID Number 02402R0294592006 Session Case No. 74/09 Assigned to Sessions 19/07/06 Arguments heard on 10/11/10 Date of order 15/11/10 FIR NO. 141/06 Police Station WELCOME Under Section 399/402 IPC R/W SEC. 25/54/59 ARMS ACT Out come of the judgment ACQUITTAL STATE VS 1. NADIM S/O MUNSHI R/O K-323, GALI NO.7, JANTA COLONY, WELCOME, DELHI 2. NASEEM @ KALLU S/O YASEEN R/O J-26 NEW SEELAMPUR, DELHI 3. ANIS S/O NIZAM R/O JHUGEE NO. 219, DHARAMPURA, NEW SEELAM PUR, DELHI 4. AJAY S/O RAMESH KUMAR R/O J-199, NEW SEELAM PUR, DELHI Present: Sh. Mukul Kumar Ld. Addl. PP for state. Sh. A.K. Pandey Amicus Curiae on behalf of all the accused. JUDGMENT
1. Brief facts arising out of this case are that on 29.3.06 SI Narender Kumar Tyagi alongwith A.A.T. Staff (Civil) HC Ashok Kumar, HC Devender Singh, Page 1/15 2 FIR NO:141/06; PS WELCOME; U/S 399/402 IPC R/W 25/54/59 ARMS ACT; STATE VS. NADIM & ORS. Ct. Dharmender, Ct. Lal Singh, Ct. Sameera and Ct. Daryave Singh were on patrolling duty in front of Mukan Restaurant, Naveen Shahdara, Delhi. At about 8:30 p.m SI Narender Kumar Tyagi received a secret information that five six persons were making plan of committing docaity while sitting behind Welcome Metro and in front of petrol pump in a fountain park and also having illegal arms in their possession. The said information was sent to Inspector N.P. Singh and as per his direction raiding party was organized, four five passersby were asked to join the raiding party but none agreed. SI Narender Kumar Tyagi alongwith other members of raiding party and informer reached near fountain park on foot. Secret informer pointed out towards five six persons who were sitting in the fountain park and were making plan to commit robbery at the petrol pump. Their conversation was heard by the police official. One person among them namely Kallu was negotiating that at the event of apprehension the remaining persons would start firing. At about 9:15 p.m at the instance of informer all the persons sitting in the fountain park were apprehended. One of them succeeded in running away from the spot while jumping the wall and all the remaining accused were apprehended. Out of them name of one was revealed as Nasim @ Kallu s/o Yaseen r/o J-26 New Seelampur, Delhi whose personal search was taken and during personal search a country made katta 3.5 bore was recovered from the left dub of his Page 2/15 3 FIR NO:141/06; PS WELCOME; U/S 399/402 IPC R/W 25/54/59 ARMS ACT; STATE VS. NADIM & ORS. wearing pant and two live cartridges were also recovered from his right pocket of the pant. On opening the same was found to be loaded. Katta was unloaded and taken in possession. The name of other accused was revealed as Anis s/o Nizam r/o Jhugee No. 219, Dharampura, New Seelam Pure, Delhi and from whose person search a buttondar knife was recovered from right pocket of his pant. The name of third accused was revealed as Ajay s/o Ramesh Kumar r/o J-199, New Seelam Pur, Delhi and during his search a buttondar knife was recovered from right pocket of his pant. Accused Nadeem was also apprehended by Ct. Sameer and Ct. Lal Singh. The name of the person who succeeded in running away from the spot was revealed as Jakir. Sketches of all the recovered arms were prepared. Their measurements were also recorded on the sketch. All the arms wee sealed in a separate pullanda with the seal of NKT and were taken in possession and seal after use was handed over to ct. Lal Singh. On the basis of aforesaid facts a case u/s 399/402 IPC r/w sec. 25/54/59 Arms Act was got registered and investigation of this case was handed over to ASI Mukut Lal. All the accused were handed over to ASI Mukut Lal by SI Narender Kumar Tyagi and all the arms which were recovered from their possession were also handed over to him. IO Page 3/15 4 FIR NO:141/06; PS WELCOME; U/S 399/402 IPC R/W 25/54/59 ARMS ACT; STATE VS. NADIM & ORS. prepared the site plan. All the accused were arrested, their disclosure statement were recorded, FSL form was filled up and was sent to the office of FSL. Statement of witnesses were recorded and after completion of all the necessary investigation challan u/s 173 Cr.P.C was presented in the court of Ld. MM.
2. Ld. MM after taking cognizance for the offence supplied the copies of the challan to all the accused as provided u/s 207 Cr.P.C and committed the case to the court of Sessions and on turn allocated to this court for trial. Thereafter case was fixed for arguments on charge.
3. After hearing arguments and taking into consideration the material available on record charge for the offence u/s 399/402 IPC was framed against all the persons and separate charges for the offence u/s 25/54/59 Arms Act against accused Naseem @ Kallu, Ajay and Anis vide order dated 07.12.06 to which all the accused pleaded not guilty and claimed trial, thereafter case was fixed for prosecution evidence.
4. HC Ashok appeared as (PW1), HC Devender as (PW2), SI Narender Kumar Tyagi as (PW3), Ct. Dharmender as (PW4), HC Lal Singh as (PW5), Ct. Page 4/15 5 FIR NO:141/06; PS WELCOME; U/S 399/402 IPC R/W 25/54/59 ARMS ACT; STATE VS. NADIM & ORS. Dariyo Singh as (PW6), IO ASI Mukut Lal as (PW7), ASI Sahab Singh as (PW8), HC Trilok Chand as (PW9) and SI Mukut Lal as (PW10).
5. Brief testimony of all the PW's are as follows:
(i) PW1 deposed that on 29.3.06 he was posted as HC in Auto Theft Squad, North East District. On that day he alongwith HC Devender Kumar, Ct.
Dharmender, Ct. Lal Singh, Ct. Sameer and Ct. Dariav Singh were on patrolling duty near Muskan Restaurant. In the mean time at about 8:30 p.m a secret informer gave an information to SI Narender that five six persons were sitting at Musical fountain park and making plan to commit docaity at petrol pump situated opposite Metro station Welcome. All are armed with weapon. He also informed that if raid is conducted they all would be apprehended. This information was conveyed to Inspector AATS. Raiding party was organized by the IO consisting of all the above named police officials. IO also requested to four five persons to join the raiding party but none agreed ultimately nakbandi was done and they all reached at the spot on foot at about 9:00 p.m. and on the pointing out of secret informer four persons who were sitting in the park were apprehended and one person succeeded in escaping from the spot. Page 5/15 6 FIR NO:141/06; PS WELCOME; U/S 399/402 IPC R/W 25/54/59 ARMS ACT; STATE VS. NADIM & ORS. Out of them Kallu s/o Yaseen was apprehended by SI Narender and Ct. Dharmender. His formal search was taken by IO and during his search one loaded katta and two live cartridges were recovered from his possession from his right side pocket of the pant. One other accused Anis was apprehended by him and during his search one knife was recovered from his possession. Accused Ajay was apprehended by HC Devender and one knife was recovered from his possession. Fourth accused was apprehended by Ct. Sameer and Ct. Lal Singh but nothing was recovered from his possession. Sketch of katta and cartridges were prepared by IO which is Ex. PW1/A. Sketch of knife which were recovered from the possession of accused Anis and Ajay were also prepared in his presence. All the sketches are Ex, PW1/B and C respectively bearing his signature at point A. All the recovered arms were converted into a sealed parcel sealed with the seal of NKT by the IO. All the seizure memos are Ex. PW PW1/D, E and F respectively bearing his signature at point A. He further deposed that seal after use was given to ct. LalSingh by IO. SI Narender Kumar prepared rukka and handed over to ct. Sameer for registration of the case. After registration of the case ASI Mukut Lal reached reached at the spot and further investigation was handed over to him. All the Page 6/15 7 FIR NO:141/06; PS WELCOME; U/S 399/402 IPC R/W 25/54/59 ARMS ACT; STATE VS. NADIM & ORS. accused persons who were apprehended and case property/documents which were recovered from their possession were also handed over to ASI Mukut Lal. He also identified all the four accused persons in the court. He also identified country made katta, two live cartridges, one test fired cartridge which are collectively Ex. P1/1-3 which were allegedly recovered from the possession of accused Kallu. He also identified the knife which was allegedly recovered from the possession of accused Anis and from accused Ajay. Both are Ex.P2 and P3.
During cross examination by Sh. A.K. Pandey amicus curiae on behalf of accused he reiterated his testimony as submitted by him during examination in chief except the few contradictions such as he deposed that IO did not call any person from Muskan Restaurant after receipt of secret information but other PW's stated that public persons were asked to join the raiding party but none agreed. He also stated that no other persons were sitting in the park except the accused persons. On the other hand other PW's stated that public persons were also sitting in the fountain park at the time of apprehension of the accused. He further deposed that height of the boundary wall from inside the park was about 4-5 feet however, other PW's stated that it was about 3 to 4 feet. He further stated that he did not know whether SI Narender Kumar had Page 7/15 8 FIR NO:141/06; PS WELCOME; U/S 399/402 IPC R/W 25/54/59 ARMS ACT; STATE VS. NADIM & ORS. asked any public persons who were sitting in the park to join the raiding party. He also pointed out some contradictions to the fact that ct. Sameer reached at the spot alongwith ASI Mukut Lal with rukka and FIR at about 12:30 a.m on the other hand other PW's stated that he had reached at the spot at about 1:50 a.m.
(ii) PW2 corroborated the testimony of PW1 to the fact that on 29.3.06 on receipt of a secret information by SI Narender he joined the raiding party alongwith above named police officials. He also corroborated the factum of apprehension of accused and recovery of arms as deposed by PW1. During his cross examination he deposed that SI Narender had asked public persons who were sitting in the park to join the raiding party but none of them agreed to join. On the other hand PW1 stated that no public persons except the accused were sitting in the park. He also deposed that no written notice was given to the public persons who had refused to join the proceedings at Muskan Restaurant and in the park. On the other hand PW1 specifically stated that no public persons who were sitting at Muskan Restaurant were asked by the IO to join the investigation of this case. He further deposed that rukka was sent by IO at about 11:45 p.m and ct. Sameer returned at the spot Page 8/15 9 FIR NO:141/06; PS WELCOME; U/S 399/402 IPC R/W 25/54/59 ARMS ACT; STATE VS. NADIM & ORS. at about 1:50 a.m. On the other hand PW1 stated that ct. Sameer returned at the spot after registration of the case at about 12:30 a.m.
(iii) PW3 during his examination in chief further corroborated the testimony of PW1 and PW2 to the fact that on 29.3.06 he received a secret information through secret informer and raiding party was organized consisting of public officials whose names already disclosed by PW1 and PW2. He also corroborated the factum of recovery of weapons from the possession of above named accused persons. He also corroborated the factum of recovery of case property, seizure memos etc but during cross examination he admitted that he did not ask any public person who were sitting in the park to join the raiding party. On the other hand PW2 stated that public persons who were sitting in the park asked to join the raiding party and he also admitted during cross examination that he had not called any public persons from the park to join the proceedings. Rest of his testimony is reiterated by him during examination in chief.
(iv) PW4, PW5 and PW6 all were the members of raiding party and they corroborated the testimony of all the other police officials during their examination in chief but during their cross examination they contradicted on Page 9/15 10 FIR NO:141/06; PS WELCOME; U/S 399/402 IPC R/W 25/54/59 ARMS ACT; STATE VS. NADIM & ORS. many points such as the height of the wall of fountain park was about 3 or 4 feet. SI Narender admitted that he had not asked any other person who were sitting in the park to join the raiding party but other PW's stated that they were asked but they refused to join the investigation.
(v) PW6 Ct. Dariyo Singh specifically stated that IO asked the people present in the park to join the raiding party however, none of them agreed. He further stated that height of the wall of musical fountain was about 3 / 4 feet. He further stated that writing work was done by the IO himself at the spot. Light was also available but no such light is shown on the site plan Ex. PW PW3/B. He further stated that they remained at the spot till 1:30 a.m. He further stated that rukka was sent to PS at 11:45 a.m and ct. returned to the spot after about 20 to 25 minutes alongwith the copy of FIR and rukka. He further deposed that distance between the spot and the police station was about 200-250 feet. On the other hand PW2 deposed that distance between PS and spot is 1 ½ k.m.
(vi) PW8 recorded FIR Ex. PW PW8/A on the basis of rukka sent by SI N.K. Tyagi through Ct. Sameer.
Page 10/15 11 FIR NO:141/06; PS WELCOME; U/S 399/402 IPC R/W 25/54/59 ARMS ACT; STATE VS. NADIM & ORS.
(vii) PW9 is the MHC(M) with whom the alleged case property was deposited on 30.3.06 which was entered in register no. 19 at sl. no. 1650. He further deposed that sealed parcel containing country made pistol and cartridges deposited in this case were sent to FSL Rohini through ct. Sahab Singh vide R/C no. 12/21/2006. He also produced the original register no. 19 photocopy of entry no. 1650 is Ex. PW PW9/A. He further deposed that till the case property remained in his possession it was intact and was not tampered with.
(viii) PW7 and PW10 is the SI Mukut Lal who is the IO of this case and corroborated the testimony of all the PW's except the few contradictions as has already been discussed. Thereafter prosecution evidence was closed and case was fixed for examination of all the accused u/s 313 Cr.P.C.
6. During examination of accused u/s 313 Cr.P.C they all controverted all the allegations as alleged against them and submitted that they were innocent and falsely implicated in this case. They did not desire to lead defence evidence and case was fixed for final arguments. Page 11/15 12 FIR NO:141/06; PS WELCOME; U/S 399/402 IPC R/W 25/54/59 ARMS ACT; STATE VS. NADIM & ORS.
7. I have heard the arguments on behalf of accused as well as on behalf of Ld. Addl. PP for state.
8. Ld. counsel for accused submitted that before convicting the accused under any penal of law it is the duty of prosecution to prove its case beyond reasonable doubt and in the present case no incriminating corroborative evidence is brought on record by the prosecution. It is further pleaded that present case is totally based on the testimony of police officials and without corroborating the intersee testimony of police witnesses it cannot be said that prosecution succeeded in proving its case beyond reasonable doubt.
9. In support of his contention it is submitted that initially present case was registered only on the basis of receipt of a secret information through secret informer and police officials who were present at the time of apprehension of the accused persons have been examined wherein PW1 deposed that IO did not call any person from Muskan Restaurant despite of the fact that many public persons were already present there. On the other hand other PWs stated that public persons who were sitting at Muskan Restaurant and were asked to join the investigation but they failed to join the same. PW1 also further stated that public persons were also sitting in the fountain park at the Page 12/15 13 FIR NO:141/06; PS WELCOME; U/S 399/402 IPC R/W 25/54/59 ARMS ACT; STATE VS. NADIM & ORS. time of apprehension of the accused but IO specifically stated that no public persons except the accused were present at the fountain park and he ever asked the public persons to join the investigation. It is also brought on record that Ct. Sameer reached at the spot alongwith ASI Mukut Lal with rukka and FIR at about 12:30 a.m on the other hand other PW's stated that ct. Sameer reached at the spot at about 1:50 a.m. PW1 during his cross examination specifically stated that no public persons who were sitting at Muskan Restaurant were asked by the IO to join the investigation of this case and further deposed that rukka was sent by the IO at about 11:45 p.m and ct. Sameer reached at the spot at about 1:50 a.m. PW6 Ct. Dariyo Singh specifically stated that IO asked the person present in the park to join the raiding party but none of them agreed. He also disclosed the height of the wall of the fountain park about 3-4 feet. He also disclosed the distance of the police station from the spot was about 200-250 feet but on the other hand PW2 stated that distance of PS from the spot was about 1 ½ k.m.
10. In view of the aforesaid contradictions in the testimony of PW's Ld. Counsel for accused submitted that prosecution totally failed to prove its case beyond reasonable doubt and requested for acquittal of all the accused. Page 13/15 14 FIR NO:141/06; PS WELCOME; U/S 399/402 IPC R/W 25/54/59 ARMS ACT; STATE VS. NADIM & ORS.
11. On the contrary Ld. Addl. PP for state submitted that name of the 13 witnesses have been mentioned in the list of witnesses appended with the charge sheet, out of them ten witnesses have already been examined and they all produced incriminating corroborative evidence against the accused persons. PW1 HC Ashok, PW2 HC Devender, PW3 SI Narender Kumar Tyagi, PW4 Ct. Dharmender, PW5 HC Lal Singh and Ct. Dariyo Singh as PW6 all were the members of raiding party and they all were present at the time of apprehension of the accused. They were duly examined and they supported the prosecution version in the same manner as the investigation in the present case was initiated. Factum of registration of the case was proved by ASI Sahab Singh (PW8), factum of depositing the case property was proved by PW9 Trilok Chand, factum of investigation of the case was proved by ASI Mukut Lal (PW7) and in view of the unrebutted corroborative testimony of all the the PW's it is submitted that prosecution succeeded in proving its case beyond reasonable doubt and requested for conviction of the accused.
12. After hearing arguments and taking into consideration the evidence adduced by the prosecution and confrontations and contradictions brought on record during the course of examination of all the police witnesses I am of the considered view that being the police witnesses prosecution failed to place on Page 14/15 15 FIR NO:141/06; PS WELCOME; U/S 399/402 IPC R/W 25/54/59 ARMS ACT; STATE VS. NADIM & ORS. record unbreakable chain of circumstances against the accused persons however, miserably failed to produce incriminating corroborative evidence.
13. Accordingly, all the accused namely Nadim s/o Munshi, Naseem @ Kallu s/o Yaseen, Anis s/o Nizam and Ajay s/o Ramesh Kumar are acquitted for the offence as alleged against them u/s 399/402 IPC r/w section 25/54/59 Arms Act.
14. Bail bond of all the accused shall remain in force till the expiry of six months as provided in section 437A Cr.P.C. File be consigned to the Record Room.
(B.S. CHUMBAK) ASJ-3/North East District KKD/Delhi Announced in the open court Delhi Dt. 15th November 2010.
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