Delhi District Court
State vs . (1). Naeem @ Naimuddin @ Waseem on 30 September, 2014
FIR No. 1110/06; U/s 399/402/34 IPC & 25/27 Arms Act; P.S. S.P. Badli D.O.D.: 30.09.2014 IN THE COURT OF SHRI VIDYA PRAKASH: ADDL. SESSIONS JUDGE04 (NORTH): ROHINI COURTS: DELHI Session Case No. 22/1/14 Unique Case ID No. 02404R0087782007 State Vs. (1). Naeem @ Naimuddin @ Waseem S/o Shamim R/o H277278, Shakurpur, Saraswati Vihar, Delhi. (2). Mohd Shafiq S/o Sh. Mohd Tofiq R/o H.No. D3132, JJ Colony, Shakur Pur, Saraswati Vihar, Delhi. (3). Pramod S/o Sh. Hira Lal R/o H. No. 105/82, Shakur Basti, Saraswati Vihar, Delhi. (4). Chandan S/o Sh. Ram Prasad R/o VPO Sikora, PS Iglas, District Aligarh, UP. FIR No. : 1110/06 Police Station : S.P. Badli Under Sections : 399/402/34 IPC & 25 Arms Act. Date of committal to Sessions Court : 20.12.2011 Date on which judgment was reserved: 30.09.2014 Date on which Judgment pronounced : 30.09.2014 State V/s Naeem @ Naimuddin & Ors.(Acquitted) Page 1 of 16 FIR No. 1110/06; U/s 399/402/34 IPC & 25/27 Arms Act; P.S. S.P. Badli D.O.D.: 30.09.2014 JUDGMENT
The case of the prosecution as mentioned in the charge sheet is that on 17.12.2006, SI Chander Prakash (PW3) alongwith Ct. Anil Kumar (PW2), ASI Balwan Singh( PW4) (the then HC), HC Manjeet Rana (PW5) (the then Ct.) and Ct. Baljeet were on patrolling duty on foot and while patrolling at about 07.00 p.m. when they reached at Burari Road, Ganda Nallah, one secret informer met SI Chander Prakash (PW3) and gave information to him that TATA 407 UP number has been parked at Burari Road near Wine Shop. Said TATA 407 is being occupied by some notorious persons and the purpose of those persons was to commit theft or dacoity and those persons were also armed with weapons.
On receipt of said information, SI Chander Prakash (PW3) conveyed said information to the then SHO PS SP Badli, who instructed him for conducting the raid. SI Chander Prakash (PW3) requested 4 - 5 passers by to join the raiding party but none agreed and they all left the spot showing their inability without disclosing their names and addresses. At about 07.30 p.m., SI Chander Prakash (PW3) alongwith other members of the raiding party and secret informer reached at a vacant place near Wine shop where secret informer pointed out towards one TATA 407 bearing no. UP 24 B 8897 parked near said Wine Shop.
SI Chander Prakash (PW3) instructed the police officials accompanying him for taking their respective positions and he went near said State V/s Naeem @ Naimuddin & Ors.(Acquitted) Page 2 of 16 FIR No. 1110/06; U/s 399/402/34 IPC & 25/27 Arms Act; P.S. S.P. Badli D.O.D.: 30.09.2014 tempo and heard conversation of the accused persons sitting inside the said tempo. He heard accused persons talking to each other. They were planning to commit dacoity while stating to each other that they would commit the dacoity and would rob cash from the persons who after closing desi wine shop at Burari road, would leave with the cash from the said wine shop. SI Chander Prakash (PW3) told other police officials that he had heard the conversation in between the accused persons whereby they were conspiring to commit dacoity at Desi Sharab Theka situated at Burari Road. SI Chander Prakash (PW3) also gave signal to the accompanying officials and accordingly, they all rushed towards that Tempo. Upon reaching of the members of raiding party near the said Tempo, six persons sitting in the back side of Tempo tried to run away. However, the members of raiding party managed to apprehend accused persons namely Mohd. Shafiq, Naem @ Naimuddin, Pramod and Chandan while other two managed to flee away.
ASI Balwan Singh (PW4) (the then HC) apprehended accused Naeem @ Naimuddin, HC Manjeet Rana (PW5) (the then Ct.) managed to apprehend coaccused namely Mohd. Shafique, Ct. Anil Kumar (PW2) managed to apprehend coaccused namely Pramod and PW Ct. Baljeet managed to apprehend coaccused namely Chandan. The names of two persons who managed to run away from the spot, were disclosed by the accused persons apprehended at the spot to be Anees and Titar.
Upon instructions of SI Chander Prakash (PW3), HC Balwan Singh (PW4) took formal search of accused Naim and from the left pocket of pant worn by accused Naim @ Naimuddin, one country made loaded katta State V/s Naeem @ Naimuddin & Ors.(Acquitted) Page 3 of 16 FIR No. 1110/06; U/s 399/402/34 IPC & 25/27 Arms Act; P.S. S.P. Badli D.O.D.: 30.09.2014 and from the front left pocket of pant worn by accused Naim @ Naimuddin, three live cartridges were recovered. The katta upon checking, was also found loaded with one live cartridge.
Upon instructions of SI Chander Prakash, HC Manjeet Rana (PW5) (the then Ct.) took formal search of accused Shafeeq and from the front right side pocket of pant worn by accused Shafeeq, one buttondar knife was recovered.
Upon instructions of SI Chander Prakash, Ct. Anil Kumar (PW2) took formal search of accused Pramod and from the front right side pocket of pant worn by accused Pramod, one buttondar knife was recovered. From the possession of accused Chandan, one iron rod was recovered. SI Chander Prakash prepared sketches of the arms and rod and took their measurements.
SI Chander Prakash kept recovered katta and cartridges in one cloth pullanda, recovered knives in two separate cloth pullandas and rod in another cloth pullanda and also filled form FSL and all the four pullandas were sealed with the seal of CP and were seized.
SI Chander Prakash handed over seal after use to HC Balwan (PW4). Thereafter, he prepared rukka (Ex.PW3/A) and same was handed over to PW Ct. Baljeet Singh who accordingly went to police station and got the FIR no. 1110/06 (Ex.PW1/A) registered at PS SP Badli through HC Devender (PW1) who also made endorsement (Ex.PW1/B) on rukka. PW Ct. Baljeet Singh came back to the spot with ASI Rawal Singh (PW6 ) to whom investigation was entrusted.
Accordingly, ASI Rawal Singh conducted investigation of the State V/s Naeem @ Naimuddin & Ors.(Acquitted) Page 4 of 16 FIR No. 1110/06; U/s 399/402/34 IPC & 25/27 Arms Act; P.S. S.P. Badli D.O.D.: 30.09.2014 case. SI Chander Prakash (PW3) handed over custody of all the accused persons and also handed over the pullandas, seizure memos and sketches to ASI Rawal Singh who prepared site plan (Ex.PW6/A) at the instance of SI Chander Prakash and recorded his statement and thereafter, SI Chander Prakash left the spot.
It is further alleged that ASI Rawal Singh (PW6) put FIR particulars on the memos handed over to him by SI Chander Prakash. ASI Rawal Singh also seized Tata 407 bearing registration no. UP24B8897 alongwith the documents kept inside the said vehicle. It is further alleged that ASI Rawal Singh effected arrest of all the accused persons and also conducted their personal search. It is further alleged that accused Naeem @ Naimuddin and other coaccused persons made disclosure statements to ASI Rawal Singh. During investigation, accused Naim @ Naimuddin also got recovered one Maruti Car bearing registration no. DL8CB5350 from near Govt. Boys Senior Secondary School, Suraj Vihar, Mubarakpur, Delhi, which was also seized. The aforesaid car was stated to be stolen from the area of PS Ashok Vihar. During investigation, upon the instructions of ASI Rawal Singh, Ct. Manjeet deposited the pullanda containing country made katta in FSL and ASI Rawal Singh collected FSL result (Ex.PX). He also recorded statements U/s 161 Cr.PC of the witnesses and also obtained sanctions U/s 39 Arms Act for prosecuting the accused.
After completion of investigation, chargesheet was filed before the Court of Ld. M.M. State V/s Naeem @ Naimuddin & Ors.(Acquitted) Page 5 of 16 FIR No. 1110/06; U/s 399/402/34 IPC & 25/27 Arms Act; P.S. S.P. Badli D.O.D.: 30.09.2014 After compliance of section 207 Cr.P.C., the case was committed to the Court of Sessions and was assigned to Ld. Predecessor of this Court.
After hearing arguments on the point of charge, Ld. Predecessor of this Court was pleased to frame the charges u/s 399/402/34 IPC against accused persons namely Naeem @ Naimuddin, Mohd Shafiq, Parmod and Chandan and charge in respect of Sec. 25 Arms Act was framed against accused persons namely Naeem @ Naimuddin, Parmod and Mohd Shafiq, vide order dated 23.05.2010 to which said accused persons pleaded not guilty and claimed trial.
In support of its case, prosecution examined six witnesses namely PW1 HC Devender, PW2 Ct. Anil Kumar, PW3 SI Chander Prakash, PW4 ASI Balwan, PW5 HC Manjeet and PW6 Retd. SI Rawal Singh during trial.
Thereafter, statements U/s 313 Cr.PC of all the four accused persons were recorded during which all the incriminating evidence which came on record, were put to them which they denied. All the accused persons claimed that they are innocent and have been falsely implicated in this case. However, all the accused persons opted not to lead any evidence towards their defence.
Before discussing the rival submissions made on behalf of both the sides, it would be appropriate to discuss, in brief, the testimonies of prosecution witnesses which have come on record. The said testimonies are detailed as under: State V/s Naeem @ Naimuddin & Ors.(Acquitted) Page 6 of 16 FIR No. 1110/06; U/s 399/402/34 IPC & 25/27 Arms Act; P.S. S.P. Badli D.O.D.: 30.09.2014 POLICE WITNESSES PW1 HC Devender: He is the Duty Officer. He has proved factum regarding registration of FIR No. 1110/06. He proved copy of FIR No. 1110/06 as Ex.PW1/A and his endorsement on the rukka as Ex.PW1/B. During cross examination, he denied the suggestion that FIR in question was ante timed or was fabricated at the instance of IO. He also denied the suggestion that no rukka received by him. This witness has not been cross examined on behalf of accused Mohd. Shafiq, Pramod and Chandan despite grant of opportunity.
PW2 Ct. Anil Kumar, PW3 SI Chander Prakash, PW4 ASI Balwan and PW5 HC Manjeet: These four witnesses were part of raiding party who were on patrolling duty on 17.12.2006 at about 7 pm when secret information was received by SI Chander Prakash that one Tata 407 having UP registration number parked at Burari Road near wine shop, was being occupied by some notorious persons with intention to commit theft or dacoity and they were armed with weapons.
All the aforesaid prosecution witnesses deposed on the lines of prosecution story during chief examination by claiming that SI Chander Prakash went near said tempo and heard the conversation of the persons sitting inside the said tempo. They deposed that after signal given by PW3 SI Chander Prakash, remaining members of raiding party rushed there and apprehended all the four accused persons herein whereas other two persons managed to fleeing away from there. They further deposed about the State V/s Naeem @ Naimuddin & Ors.(Acquitted) Page 7 of 16 FIR No. 1110/06; U/s 399/402/34 IPC & 25/27 Arms Act; P.S. S.P. Badli D.O.D.: 30.09.2014 necessary proceedings carried out at the spot. They deposed that one buttondar knife was recovered from right side pocket of pant of accused Shafiq, one iron rod was recovered from the possession of accused Chandan, another buttondar knife was recovered from front right side pocket of pant of accused Pramod and one country pistol containing one live cartridge and three more live cartridges were recovered from left pocket of pant of accused Naeem @ Naimuddin.
They also referred to the relevant sketches of the aforesaid arms and ammunitions as also to their seizure memos claimed to have been prepared at the spot. Further investigation was entrusted to ASI Rawal Singh (PW6) who prepared the site plan of the spot and arrested all the accused persons herein. All the witness have been cross examined at length on behalf of accused persons.
PW6 ASI Rawal Singh: He is the IO of this case. He also deposed on the lines of prosecution story during chief examination. He deposed about the relevant proceedings carried out by him at the spot. He proved relevant arrest memos and personal search memos claimed to have been prepared at the spot. He also deposed that accused Naeem @ Naimuddin got recovered one Maruti Car bearing registration no. UP5350 from near Govt. Boys Senior Secondary School, Suraj Vihar, Mubarakpur, Delhi which was also seized vide seizure memo Ex.PW4/A. He also collected FSL result Ex.PX during the course of investigation.
It may also be mentioned here that accused persons did not State V/s Naeem @ Naimuddin & Ors.(Acquitted) Page 8 of 16 FIR No. 1110/06; U/s 399/402/34 IPC & 25/27 Arms Act; P.S. S.P. Badli D.O.D.: 30.09.2014 dispute contents of FSL (Ballistic) report dated 27.07.2007 relied by prosecution in this case. Their joint statement was recorded by the Court on 24.04.2009 and in view thereof, FSL result dated 27.07.2007 was exhibited as Ex.PX during trial.
It may also be mentioned here that during the course of trial, Ld. Additional PP dropped one PW namely Ct. Baljeet No. 1673/NW from the list of witnesses as he was a witness of repetitive facts in respect of which prosecution had already examined other witnesses namely PW2 to PW5 during trial.
ARGUMENTS ADVANCED AND CASE LAW CITED While opening the arguments, Ld. Addl. PP submitted that all the police witnesses examined during trial, have fully supported the case of prosecution on all material points and accused could not impeach their testimonies during cross examination. Hence, the prosecution has been able to establish its case against them beyond reasonable doubt. He further submitted that there has been recovery of arms and ammunitions from the possession of accused at the time of their apprehension and since the possession of those arms and ammunitions was in violation of relevant Notification issued by Delhi Administration and accused Naeem @ Naimuddin could not produce any license to possess country made pistol and live cartridges, offence U/s 25 Arms Act has also been proved against them beyond shadow of doubt.
Per contra, ld. defence counsels vehemently argued that State V/s Naeem @ Naimuddin & Ors.(Acquitted) Page 9 of 16 FIR No. 1110/06; U/s 399/402/34 IPC & 25/27 Arms Act; P.S. S.P. Badli D.O.D.: 30.09.2014 prosecution has not been able to establish the charges against the accused persons in this case. They contended that there are contradictions appearing in the testimonies of witnesses examined during trial. They also assailed the case of prosecution by submitting that no independent witness had been joined during proceedings despite their availability at or near the spot. In this regard, they also referred to the relevant portions of the testimonies of PW2 to PW5 wherein they have admitted that public persons were present near the spot not only at the time of apprehension of accused persons but also even prior thereto.
It is an admitted case of prosecution that there was wine shop situated just near the spot. However, no effort whatseover is even claimed to have been made by police officials to join any employee of said wine shop or any public person who was present over the said shop, either in the raiding party or during the entire proceedings claimed to have been carried out at the spot. PW6 SI Rawal Singh(Retd.) has admitted during his cross examination that he did not request any public person to join the investigation. He also deposed that wine shop was situated at a distance of 50 paces from the spot but still he did not request staff of said wine shop to join the investigation. PW2 Ct. Anil Kumar has admitted during cross examination that there were many persons present at the wine shop.
PW2 to PW5 who were allegedly part of the raiding team, claimed that PW3 SI Chander Parkash had requested 45 passers by to join the raiding party but none agreed and all of them had left the spot by showing their inability and without disclosing their names and addresses. However, State V/s Naeem @ Naimuddin & Ors.(Acquitted) Page 10 of 16 FIR No. 1110/06; U/s 399/402/34 IPC & 25/27 Arms Act; P.S. S.P. Badli D.O.D.: 30.09.2014 the said claim is nothing but mechanical excuse given by police officials in order to cover up their own lapse besides trying to fill up lacunae in the case of prosecution.
Same is manifestly clear from the fact that no written notice was served upon any of those public persons for joining the proceedings and no legal action is shown to have been taken against any of them for his/her refusal to join the investigation as claimed by these police witnesses. It is important to note that there was no possibility of accused persons having escaped from the clutches of police officials due to which effort could not be made to join public witnesses or to serve them notices after apprehension of accused persons in this case.
In a case law reported as Anoop Joshi v/s State, 1992 (2) C.C. Cases 314 (HC), Hon'ble High Court of Delhi has observed as under:
"18. It is repeatedly laid down by this court that in such cases it should be shown by the police that sincere efforts have been made to join independent witnesses. In the present case, it is evident that no such sincere efforts have been made, particularly when we find that shops were open and one or two shopkeepers could have been persuaded to join the raiding party to witness the recovery being made from the appellant. In case any of the shopkeepers had declined to join the raiding party, the police could have later on taken legal action against such shopkeepers because they could not have escaped the rigours of law while declining to perform their legal duty to assist the police in investigation as a citizen, which is an offence under the IPC."
In a case law reported as Roop Chand v/s The State of Haryana, State V/s Naeem @ Naimuddin & Ors.(Acquitted) Page 11 of 16 FIR No. 1110/06; U/s 399/402/34 IPC & 25/27 Arms Act; P.S. S.P. Badli D.O.D.: 30.09.2014 1999(1) C.L.R 69, Hon'ble Punjab & Haryana High Court held as under:
3. I have heard the learned counsel for the parties and gone through the evidence with their help. The recovery of illicit liquor was effected from the possession of the petitioner during noon time and it is in the evidence of the petitioner witnesses that some witnesses from the public were available and they were asked to join the investigation. The explanation furnished by the prosecution is that the independent witnesses were asked to join the investigation but they refused to do so on the ground that their joining will result into enmity between them and the petitioner.
4.It is well settled principle of the law that the Investigating Agency should join independent witnesses at the time of recovery of contraband articles, if they are available and their failure to do so in such a situation casts a shadow of doubt on the prosecution case. In the present case also admittedly the independent witnesses were available at the time of recovery but they refused to associate themselves in the investigation. This explanation does not inspire confidence because the police officials who are the only witnesses examined in the case have not given the name and addresses of the persons contacted to join. It is a very common excuse that the witnesses from the public refused to join the investigation. A police officer conducting investigation of a crime is entitled to ask anybody to join the investigation and on refusal by a person from the public the investigating Officer can take action against such a person under the law. Had it been a fact that the witnesses from the public had refused to join the investigation, the Investigating Officer must have proceeded against them under the relevant provisions of law. The failure to do so by the police officer is suggestive of the fact that the explanation for nonjoining the witnesses from the public is an after thought and is not worthy of credence. All these facts taken together make the prosecution case highly doubtful."State V/s Naeem @ Naimuddin & Ors.(Acquitted) Page 12 of 16
FIR No. 1110/06; U/s 399/402/34 IPC & 25/27 Arms Act; P.S. S.P. Badli D.O.D.: 30.09.2014 In case law reported as Sadhu Singh v/s State of Punjab, 1997(3) Crimes 55, Hon'ble Punjab & Haryana High Court observed as under:
5.In a criminal trial, it is for the prosecution to establish its case beyond all reasonable doubts. It is for the prosecution to travel the entire distance from may have to must have. If the prosecution appears to be improbable or lacks credibility the benefit of doubt necessarily has to go to the accused.
In the present case, the State examined two witnesses namely, Harbans Singh ASI who appeared as PW1 and Kartar Singh PW2. Both the witnesses supported the prosecution version in terms of the recovery of opium from the person of the petitioner, but there was no public witness who had joined. It is not necessary in such recoveries that public witnesses must be joined, but attempt must be made to join the public witnesses. There can be cases when public witnesses are reluctant to join or are not available. All the same, the prosecution must show a genuine attempt having been made to join a public witness or that they were not available. A stereotype statement of non availability will not be sufficient particularly when at the relevant time, it was not difficult to procure the service of public witness. This reflects adversely on the prosecution version.
Moreover, seal all along remained in possession of police witnesses and thus, possibility of tampering of the case property cannot be ruled out. It is relevant to note here that PW4 HC Balwan claimed that seal after use was handed over to him but he admitted during cross examination that no handing over memo of seal was prepared at that time.
There are various contradictions appearing in the testimonies of State V/s Naeem @ Naimuddin & Ors.(Acquitted) Page 13 of 16 FIR No. 1110/06; U/s 399/402/34 IPC & 25/27 Arms Act; P.S. S.P. Badli D.O.D.: 30.09.2014 police witnesses examined during trial.
Firstly, PW2 Ct. Anil Kumar claimed that IO had not briefed them regarding their positions at the time of raid whereas PW4 ASI Balwan Singh deposed during cross examination that the members of raiding party had taken their positions at a distance of 2025 steps from Tata 407 and PW3 SI Chander Parkash had briefed them regarding their positions at the time of raid.
Secondly, PW2 Ct. Anil Kumar claimed that all the relevant documents were prepared while sitting on a wall situated on the road at the spot itself. However, PW3 SI Chander Parkash contradicted said portion of testimony of PW2 when he claimed that all the documents were prepared while sitting under the street light on the road.
Thirdly, Ct. Anil Kumar claimed that IO SI Chander Parkash (PW3) had mentioned in the memos that seal after use was handed over to HC Balwan Singh(PW4). However, the said portion of his testimony is also belied from the record as there is no mention about this fact in the memos.
Fourthly, PW2 claimed that it took about three hours in conducting writing work at the spot whereas PW4 ASI Balwan Singh claimed that it had taken about two hours in completing the writing work at the spot.
Fifthly, PW2 Ct. Anil Kumar claimed that ASI Rawal Singh(PW6) had come to the spot at about 10.30 P.M whereas PW5 claimed that PW ASI Rawal Singh had come to the spot at about 11.00 P.M. As per the case of prosecution, PW3 SI Chander Parkash had State V/s Naeem @ Naimuddin & Ors.(Acquitted) Page 14 of 16 FIR No. 1110/06; U/s 399/402/34 IPC & 25/27 Arms Act; P.S. S.P. Badli D.O.D.: 30.09.2014 heard the conversation of accused persons while they were sitting in the tempo and were planning to commit dacoity. That being so, it is quite natural that the said facts would have been mentioned by him in the rukka prepared by SI Chander Parkash for the purpose of registration of FIR, after apprehension of accused persons as claimed in the charge sheet. However, these facts are not mentioned in the rukka Ex PW3/A as available on record. In fact, it has also been admitted by PW3 SI Chander Parkash that he nowhere mentioned, in the rukka that accused persons were conspiring to commit dacoity of cash from the official of wine shop/ Thaika situated at Burari Road. Not only this, he also admitted during cross examination that he did not state those facts in his statement U/s 161 Cr.PC recorded by IO ASI Rawal Singh(PW6).
There is another reason which creates doubt in the case of prosecution story. Although, it has been claimed that PW2 to PW5 had left PS on 17.12.06 at about 7.00 P.M for patrolling duty but none of them could disclose departure entry vide which they had left the PS. Moreover, the copy of relevant departure entry has also not been placed on record what to say of being proved during course of trial.
Court also finds considerable force in the argument raised by Ld defence counsel that accused persons did not even resist before police officials when they apprehended them as admitted by relevant prosecution witnesses during their respective cross examination. It is a matter of common knowledge that any person who is in possession of illegal arms and ammunitions, would definitely resist his/her apprehension by police officials State V/s Naeem @ Naimuddin & Ors.(Acquitted) Page 15 of 16 FIR No. 1110/06; U/s 399/402/34 IPC & 25/27 Arms Act; P.S. S.P. Badli D.O.D.: 30.09.2014 under the fear of being booked in criminal case. In this backdrop, the story as set up in the charge sheet seems flimsy and does not appeal to reasoning.
Furthermore, the chain of evidence is not complete. The concerned official who had deposited exhibits in the office of FSL, has not been produced during trial. It is also relevant to highlight the fact that sanction U/s 39 Arms Act has not been placed on record. In this regard, the testimony of IO i.e. PW6 ASI Rawal Singh is relevant. The said witness nowhere dared to depose that he ever applied for according requisite sanction U/s 39 Arms Act for prosecuting accused Naeem @ Naimuddin for illegal possession of country made pistol without which offence U/s 25 Arms Act is not made out against said accused.
In the light of aforesaid discussion, Court is of the considered view that the prosecution has failed to establish the charges levelled against all the accused persons beyond shadow of doubt. Consequently, all the four accused persons namely Naeem @ Naimuddin, Mohd Shafiq, Parmod and Chandan are acquitted of the charges levelled against them by giving them benefit of doubt. However, case property be confiscated to the State. File be consigned to Record Room after compliance of Section 437A Cr.P.C.
Announced in open Court today
dt. 30.09.2014 (Vidya Prakash)
Additional Sessions Judge04 (North)
Rohini Courts/Delhi
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