Delhi District Court
State vs . 1. Yusuf S/O. Sh. Bundu @ Bashir on 3 September, 2012
IN THE COURT OF SANJAY GARG: ADDITIONAL SESSIONS
JUDGE: 01(EAST) : KARKARDOOMA COURT: DELHI.
SC No. 161/2006
FIR No. 468/06
PS. Mandawali
US. 394/397/395/412/34 IPC
Instituted on 16.11.2006
Argued on 22.08.2012
Decided on 28.08.2012
State Vs. 1. Yusuf S/o. Sh. Bundu @ Bashir
R/o. Phool Jhari Factory, near Jhor
New Mustafabad, Loni, Ghaziabad, UP
2. Annisuddin @ Annish S/o. Sh. Salim
R/o. Phool Jhari Factory, near Jhor
New Mustafabad, Loni, Ghaziabad, UP
3. Naseem @ Ganja S/o. Sh. Abdulah
R/o. Gali No. 6, Old Mustafabad, Gokalpuri,Delhi
4. Nafees S/o. Sh. Hanif Khan
R/o. Mohalla, Jamalpura, Near Butcher
Khana, Rashid Gate,Loni Ghaziabad,UP.
JUDGMENT
1. Briefly stated case of the prosecution is that on 11.09.06 SI Rupesh Khatri (PW16) on receiving DD No. 49A along with Ct. Lalit (PW6) reached at NH-24, Slip Road, Near Khichirpur Bridge. There Ct. P.C.Parikshit (PW12) and Ct. Narender (PW15) both of Home Guard Constables met him with two accused Yusuf and Anisuddin FIR No. 468/06 1 page of 28 allegedly beaten by public. Bloodstained knife recovered from accused Yusuf was also handed over to him. Since injured were removed to LBS Hospital, SI Rupesh Khatri reached at LBS Hospital. There he came to know that injured left hospital against medical advice and has been admitted in Kailash Hospital Noida. He reached there and recorded statement of victim Sandeep Negi ( PW1). PW1 in his complaint stated that on 11.09.06 he along with his cousin Jitender Singh, who is a traffic constable at 10 PM was going on motorcycle. At about 10.30 PM, Jitender stopped motorcycle near Khichripur and started urinating. Two boys came from front side armed with katta and knife and took away his mobile phones and purse. Jitender refused to hand over his articles. In the meantime two more associates of those boys came there. Public came there. Two boys ran away on motorcycle. Two boys were apprehended. Pankaj and Narender who are Home Guard Constables reached there. The names of those boys were disclosed as Yusuf and Anisuddin. Jitender was taken by PCR vehicle to LBS Hospital.
2. SI Rupesh Khatri got FIR registered. Both the accused Yusuf and Anisuddin were arrested. Purse of PW1 (Sandeep Negi) was recovered from the possession of Anisuddin and same was taken into possession. On 13.09.06 both accused made disclosure statements. On 14.09.06 accused Naseem @ Ganja was arrested from Gali No. 6, Old Mustafabad. On 18.09.06 TIP of accused Naseem was got conducted in Tihar Jail. On 19.09.06 IO got information regarding arrest of accused Nafees in another case. Accused Nafees was arrested in this case on 29.09.06 Accused Naseem did Nishandehi of place where he had left the stolen motorcycle and got recovered the key of the said motorcycle from his house. He also got recovered razor from his house. On 25.09.06 TIP of accused Nafees was got conducted. TIP of case FIR No. 468/06 2 page of 28 property was also got conducted from PW2. After investigation police filed chargesheet against four accused persons under Section 394/397/395/412/34 IPC.
3. Charge under Section 395/34 IPC was given to all the four accused, to which they pleaded not guilty and claimed trial. Separate charge under Section 397/34 IPC was given to accused Yusuf and Naseem, to which they pleaded not guilty and claimed trial. Separate charge under Section 412 IPC was given to accused Anisuddin @ Anees, to which he pleaded not guilty and claimed trial. Separate charge under Section 412 IPC was also given to accused Naseem @ Ganja, to which they pleaded not guilty and claimed trial.
4. To prove its case prosecution examined 18 witnesses. PW1 Sandeep Negi is the victim and he proved his complaint Ex.PW1/A, seizure memo Ex .PW1/B vide which his purse recovered from accused Anisuddin was taken into possession, seizure memo Ex. PW1/C vide which knife recovered from accused Yusuf was taken into possession, sketch of knife Ex.PW1/D, arrest memos and personal search memos of accused Yusuf and Anisuddin EX. PW1/E to H and TIP of accused Naseem Ex. PW1/J. PW2 Jitender is also the victim of the incident. PW3 HC Birpal Singh joined investigation on 13.09.2006. He proved disclosure statement of accused Anisuddin, Yusuf and Naseem as Ex.PW3/A to C. PW4 ASI Sheo Pal Singh was duty officer, he proved FIR Ex. PW4/A. PW5 Ct. Rajeev also joined investigation, he proved arrest memo and personal search memo of accused Naseem Ex. PW5/A to B. PW6 HC Lalit also joined investigation with IO. PW7 Ct. Daya Nand also joined investigation with IO and proved pointing out memo Ex.7/A prepared at the instance of accused Naseem, pointing out memo Ex.PW7/B of the place where accused Naseem parked motorcycle, seizure memo Ex.
FIR No. 468/06 3 page of 28PW7/C vide which key of the motorcycle was seized, sketch of razor Ex.PW7/D and seizure memo of pulanda containing razor Ex. PW7/E. PW8 HC Maharaj Singh also joined investigation with IO on 21.09.06. PW9 Dr. Sushil Kumar proved MLC of PW2 as Ex.PW9/A. PW10. ASI Subhash Chand proved seizure memo of motorcycle bearing No.DL 7S AB 3836 as Ex.PW10/A. PW11 SI Raj Singh proved FIR No. 67/06 under Section 25 Arms Act of PS Special Cell, Lodhi Colony Ex. PW11/A. PW12 Ct. P.C. Parikshit and PW15 Ct. Narender Kumar are two discharged Delhi Home Guard Constables. They both reached at the spot and apprehended two accused Yusuf and Anisuddin. PW13 Dr. Parannath Paikaray CMO, Kailash Hospital, Noida proved prescription Ex. PW13/A of PW2 on behalf of Dr. B.K. Patta, who has since expired. PW14 HC Subhash Chand proved pointing out memo Ex.PW14/A of the spot prepared at the instance of accused Nafees. PW15A ASI Kamal Kumar was posted in PCR on the day of the incident, he reached at the spot on receiving call, took both PW1 and PW2 to LBS Hospital. PW16 SI Rupesh Khatri proved DDNo. 48A Ex.PW16/A, seizure memo Ex. PW16/B vide which pulanda containing shirt and Baniyan of accused and one sample seal were taken into possession, rukka Ex. PW16/C, site plan Ex.PW16/D, disclosure of accused Nafees Ex.PW16/E and arrest and personal search memo of accused Ex. PW16/F and G. PW16A Sh. Rakesh Kumar III Administrative Civil Judge Cum Additional rent Controller proved TIP Ex. PW16/A of accused Nafees. PW17HC Ajit Tanwar proved disclosure statement made by accused Nafees Ex. PW17/A in FIR No. 69/06 of PS Special Cell, Lodhi Colony. PW17A G.N Pandey Ld. ACMM Tis Hazari Court proved TIP of case property Ex.PW17/A. PW18 Ms. Poonam Chaudhary, Ld. ADJ proved TIP of accused Nafees Ex.PW18/A.
5. On the basis of incriminating evidence against accused FIR No. 468/06 4 page of 28 persons their statements under Section 313 Cr.P.C were recorded wherein they denied entire prosecution evidence against them and took the defence of false implicating stating that they were picked from their houses. None of the accused opted to lead defence evidence.
6. I have heard arguments of Ld. Addl.PP for the State, Sh. Raje Ram, Ld. Counsel for accused Nafees and Sh. S. Hasan, Zaidi, Ld. Amicus Curiae for three remaining accused persons and have gone through the case file.
7. Ld. APP submitted that PW1 and PW2 who are the victims of this incident have correctly identified all the four accused persons mentioning the specific roles played by them in the incident. It is stated that PW12 and PW15 who were Delhi Home Guard reached at the spot and apprehended accused Yusuf and Anisuddin from there. It is stated that accused Nafees refused to participate in TIP which will attract adverse inference against them. It is stated that case property stands identified in TIP by PW2. It is stated that prosecution has been able to prove its case against accused persons beyond reasonable doubt.
8. Sh Raje Ram Ld. Counsel for accused Nafees submitted that there are contradictions in the statement of PW1 and PW2 regarding the number of persons involved in the incident. It is stated that accused Yusuf and Anisuddin allegedly arrested from the spot has not named accused Nafees in their disclosure statements. It is stated that accused was arrested on 19.09.12 and there is no recovery of any article from his possession. It is stated that prosecution has failed to prove its case against this accused beyond reasonable doubt.
9. Sh S. Hasan Zaidi, Ld. Amicus Curiae for other three accused submitted that despite availability no public witness was joined FIR No. 468/06 5 page of 28 which creates doubt on the story of prosecution. It is stated that there is no recovery of any katta i.e weapon of offence from possession of any accused persons. It is stated that there are major contradictions in the statements of PW1 and PW2. As per PW2, Home Guard constables did not come there. It is stated that as per PW12 and PW15A injured sustained injuries on chest but as per PW1 and PW2 they sustained injuries on their stomach. In support of his contention, he relied upon 2004[2] JCC 832 Narender Singh & ANR. Vs. State of M.P.
10. PW1 and PW2 are two victims of the incident. PW1 who is complainant deposed that on 11.09.06 he along with Jitender Singh who was working as constable was coming from Hauz Khas to their house on the motorcycle No. DL-7S AB-3836 make Bajaj Pulsar of violet colour. About 10.00 PM when they reached near Khichripur Bridge, Road No. 24 NH, Jitender stopped motorcycle for urinating and went on the side of the road and he was sitting on the said motorcycle. Two boys came there suddenly from the side of Maruti van stationed there. Those boys were having katta and put the same on the temple of Jitender. He requested the boys that whatever they wanted he was ready to hand over. Another boy took out a knife and put the same on his neck and threatened to kill him and took away his mobile phone make Nokia bearing No. 9818597033, one purse containing Rs.60/-, his identity card and other documents. When those boys tried to take the articles from the possession of Jitender forcibly, he objected to it. The boy who was having knife attacked Jitender with knife. In the meantime, two other companions of those boys also reached at the spot, on seeing them, he came to rescue Jitender and apprehended the boy who was with knife. One of the assailants was apprehended by Jitender. They raised alarm and public gathered there and both FIR No. 468/06 6 page of 28 assailants were beaten up. The boy who was having katta in his hand and his other companion fled away from there taking motorcycle of Jitender. Two Home Guard Constables reached at the spot and saved the assailants from public persons. He identified both assailants who were apprehended at the spot i.e. Yusuf and Anisuddin. Accused Yusuf was having a knife. PCR van also reached at the spot and took Jitender to LBS Hospital. Family members of Jitender took him to Kailash Hospital. Police reached at Kailash Hospital and recorded his statement. He also identified accused Naseem @ Ganja and Nafees as two assailants. From the possession of accused Anisuddin, his purse containing Rs.60/-, one Airtel ID card and some visiting cards were recovered. From the possession of accused Yusuf knife was recovered.
11. PW2 Jitender who is working as Constable in Delhi Police also deposed the same facts as deposed by complainant PW1. Regarding incident he has stated that one boy came to him and put a katta on his head and asked him to hand over whatever he was having. Three more boys also came there and started beating his brother Sandeep. He refused to hand over whatever he was having. On this, one assailant gave chhura blow on his abdomen. Thereafter he started grappling with the assailants. In the meantime public gathered there and helped them in apprehending the assailants namely Yusuf and Nafees.(However, during his cross examination by Ld. APP, he clarified that the other accused apprehended with accused Yusuf was Anisuddin.) Remaining three assailants ran away on the motorcycle. He did not identify accused Anisuddin and Naseem as the assailants who tried to commit robbery on him. He does not remember who gave him chhura blow. During cross by Ld. Addl. he denied the suggestion that home guard constables Pankaj and Narender also arrived there. He FIR No. 468/06 7 page of 28 admitted that accused Yusuf gave him a chhura blow on his abdomen and he is the same person who was apprehended at the spot. He further admitted that one person who was apprehended by public at the spot was accused Anisuddin and not Nafees. He denied the suggestion that accused Nasim and Nafees are the two assailant who along with Yusuf and Anisuddin, gave beating to them and committed robbery. He admitted that accused Yusuf was having knife and he snatched purse and mobile phone of his brother Sandeep. He admitted that his bloodstained shirt and baniyan were sealed by the doctor. He correctly identified his motorcycle Ex. P1, knife Ex. P2 shirt and baniyan Ex P3 and P4.
12. PW15 A ASI Kamal Kumar deposed that on 11.12.06 he was posted in PCR in Romeo 31 as HC. At about 10.40 PM a call was received that a quarrel had taken place involving knives at Red Light Mayur Vihar, Phase-I. There two home guard constables met them. Accused Yusuf and Anisuddin were in the custody of these home guard constables. This witness wrongly identified accused Nafees as Yusuf and again wrongly identified accused Nafees as Anisuddin. Jitender Singh Bist was injured having sustained injuries on right side of his abdomen. Sandeep Negi was also present there. They took both Jitender and Sandeep in PCR to LBS Hospital. During cross by Ld. APP, witness has correctly identified accused Yusuf and Anisuddin on the pointing out of Ld. APP. He admitted that at first glance , he could not identify accused due to lapse of time.
13. PW12 Discharge Delhi Home Guard Ct P.C. Parikshit deposed that on 11.09.06 he was working in Delhi Home Guard as Constable and was posted at PS Mandawali and was on duty from 10 PM to 6 AM at the police picket at Khichripur bridge along with Ct. Narender, DHG. At about 10.40 PM, some public persons informed him about FIR No. 468/06 8 page of 28 a stabbing incident on Slip Road at NH-24 before Red Light near Khichripur bridge. He and Ct. Narender went there. There public had apprehended three persons while two had fled away. Names of these persons were disclosed as Yusuf and Anisuddin but PW12 does not remember the name of third person. One big knife having blood stains was recovered from the hand of accused Yusuf. Injured Jitender was also present having injuries on his chest and blood was bleeding. His brother Sandeep was also present. PCR van came there and took injured jitender and his brother to LBS Hospital. On casual search of accused Anisuddin, one purse containing some money and documents were recovered from his pocket which was identified by Sandeep as belonging to him. SI Rupesh Khatri and Ct. Lalit reached at the spot . He handed over knife and purse to them. IO prepared site plan and seized knife and purse containing cash and other documents.
14. PW15 Ct. Narender Delhi Home Guard also deposed the same facts as deposed by PW12. He has stated that public persons had apprehended two persons and their names were disclosed as Yusuf and Anees. He correctly identified both the accused persons.
15. Ex. PW19/A is the MLC of PW2 as per which he suffered following injuries:
1. Incised stab wound present over infra- umbilical region of abdomen about 2 cm x.5 cm x more than finger length.
2. Incised wound present over left occipital region of scalp about 3cm x .5 cmx.5cm size.
3. Incised wound present over left side upper limb 1 cm x . 3cmx.3cm
16. MLC was prepared on 11.09.06 at 11.05 PM and in history it is mentioned as assault( stab injury). The name of PW15A HC Kamal Kumar ( as he then was ) having No. 1517 PCR R31 is FIR No. 468/06 9 page of 28 mentioned as the person, who accompanied injured i.e PW2. This MLC supports statement of PW15A that he was in PCR and took injured to LBS Hospital.
17. PW13 Dr. Prannath proved opinion given by Dr. B.K. Patta at point A on the MLC Ex. PW9/A, since Dr. B. K. Patta was reported to have expired and PW13 had worked with him. Injury is opined to be grievous in nature.
18. PW16 SI Rupesh Khatri is the IO. He reached at the spot on receipt of DD No. 48A along with Ct. Lalit ( PW6). He deposed that Ct. PC. Parikshit (PW12) and Ct. Narender (PW15), Delhi Home Guards met them with accused Yusuf and Anisuddin allegedly beaten by public. Ct. Narender (PW15) handed over one bloodstained knife to him stating that same was recovered from accused Yusuf. Since injured was removed to LBS Hospital, he reached LBS Hospital and obtained MLC of Jitender Singh Bisht( PW2) and doctor handed over him to one pulanda containing shirt and Baniyan (vest) of accused and same were taken into possession. He came to know that injured has left hospital against medical advice and he has been admitted in Kailash Hospital, Noida. PW2 was not in position to make statement, Sandeep Negi met him and he recorded his statement. He prepared rukka and sent the same to PS through Ct. Lalit for registration of FIR. Along with Sandeep he reached at the spot and at his instance prepared site plan. Ct. Lalit reached at the spot with copy of FIR. He prepared sketch of knife and put it in a pulanda after sealing with seal of RK, same was taken into possession. Purse of PW1 (Sandeep Negi) was recovered during personal search of accused Anisuddin and same was found containing Rs.60/-, I card and some visiting cards. These articles were put in a pulanda and after sealing, same was taken into possession. Both the accused Yusuf and Anisuddin FIR No. 468/06 10 page of 28 had made disclosure statement on 13.09.06 . On 14.09.06 accused Naseem @ Ganja was arrested from Gali No. 6, Old Mustafabad on the identification of accused Yusuf. On 17.09.06 he recorded statement of Jitender Bisht in Kailash Hospital. On 18.09.06 he got TIP of accused Naseem conducted in Tihar Jail. On 21.09.06 accused Naseem did nishan dehi of place where he left stolen motorcycle and he led police to his house in Gali No. 6 Old Mustafabad and got recovered the key with ring of the motorcycle from left drawer of his dressing table and same was put in pulanda and after sealing, the same was taken into possession. On 22.09.06 accused Nafees was arrested in this case.
19. One of the main contentions raised by Ld. Amicus Curiae Sh. S Hasan Zaidi and Sh. Raje Ram Ld. Defence counsel for accused Nafees is that there are major contradictions in the statements of PW1 and PW2 regarding the persons involved in the incident, which renders prosecution case under the shadow of doubt. It is stated that PW1 and PW2 are only eyewitnesses to the incident, once their statements are rendered untrustworthy, entire prosecution case goes. PW1 is the complainant and PW2 is the injured, their statements are consistent on all the major particulars of the case. As per PW1 accused Yusuf and Anisuddin were apprehended at the spot and their other associates ran away from the spot taking motorcycle of Jitender. As per him, accused Yusuf was armed with a knife. He has identified all the four accused. As per him, accused Naseem @ Ganja and Nafees came later on and joined accused Yusuf and Anisuddin in committing robbery. As per PW2 while he was urinating a boy came near him and put a katta on his head and asked him to hand over whatever he was having, thereafter 3-4 more boys came and started beating Sandeep. He deposed that accused Yusuf and Nafees were apprehended from the FIR No. 468/06 11 page of 28 spot. During cross examination by Ld. APP he stated that the second person who was apprehended at the spot by the public was Anisuddin. He further deposed that remaining three assailants succeeded in running away on their motorcycle. He failed to identify two other assailants. During cross by Ld. APP he identified accused Yusuf as the person who gave him knife blow. As per prosecution case, total five persons were involved in the incident. All the four accused persons were chargesheeted and their fifth associate Hafeez could not be traced. Such incident has an element of surprise. This incident happened at about 10.00PM. The incident comprising looting of PW1 and PW2 and stabbing must have taken only maximum 5-6 minutes. As per PW1, total four persons were involved in the incident but as per PW2 five persons were involved in the incident. Keeping in view the sudden manner in which this incident happened, sustaining injuries by PW2, reaching of public persons at the spot, the contradictions in the statement of PW1 and PW2 regarding the number of persons involved in the incident are minor which need to be ignored. Reliance is placed upon Bharwada Bhoginbhai Hirjibhai Vs. State of Gujarat, (1983) 3 SCC 217, wherein the Apex Court has observed that overmuch importance need not be attached to minor discrepancies as by and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. Ordinarily it so happen that witness is overtaken by the events. The witness could not have anticipated the occurrence which so often has an element of surprise. The powers of observation differ from person to person. By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident.
20. Other contention raised by Ld. Amicus Curiae and Ld. Defence counsel is that presence of two home guard constables FIR No. 468/06 12 page of 28 comes under the shadow of doubt as PW2 has specifically denied that two home guard constables had reached at the spot. It is stated that PW12 and PW15 are two planted witnesses, which shows that entire prosecution case is fabricated falsely implicating accused persons. As per PW1, one of the assailants was apprehended by Jitender and he made hue and cry and on hearing his noise, public persons came there and started beating the assailants. Two home guard constables gathered at the spot and saved assailants from public persons. But as per PW2 one of the assailants gave knife blow on his abdomen; in the meantime, public persons gathered there and traffic jammed; public persons helped them and both assailants were apprehended by public persons and his brother Sandeep. During his cross examination by Ld. APP he denied the specific suggestion that two home guard constables Pankaj and Narender also arrived there.
21. Statements of PW12 and PW15 who are two home guard constables, on the day of the incident and were posted at PS Mandawali are consistent regarding their reaching of the spot after receiving this information about happening of stabbing incident on the Slip Road at NH 24 near Khichripur Bridge. However, there are contradictions in their statements regarding number of persons being apprehended by public at the spot. As per PW12 public persons had apprehended three persons while two have reportedly fled away. He identified accused Yusuf and Annisuddin as two assailants who were apprehended at the spot. He stated that he does not remember the name of third person who was arrested at the spot. PW15 Ct. Narender has stated that accused Yusuf and Annisuddin were apprehended by public persons at the spot. Statement of PW12 was recorded after lapse of five years from the date of the incident. It is not strange that with the passage of time FIR No. 468/06 13 page of 28 one tends to forget the details of the incident. Therefore much importance need not be given to this contradiction regarding the number of assailants apprehended at the spot, in the statements of PW1 and PW2. On all the other major particulars, statements of PW12 and PW15 are consistent, believable and natural.
22. PW15A ASI Kamal Kumar is another important witness. He was posted in PCR and was on duty in Romeo 31. He has supported statements of PW1, PW12 and PW15 by stating that at the spot two home guard constables met them and accused Yusuf and Anisuddin were in the custody of these home guard constables. PW15A has failed to correctly identify accused Yusuf and Anisuddin in the court. He deposed before this court after lapse of more than five years. Again it is not strange if he failed to identify correctly two accused persons, who were apprehended at the spot, because of passage of time.
23. PW2 has suffered three incised wounds. As per prescription slip Ex. PW13/A, he remained admitted in the hospital till 25.09.06. Even injuries sustained by PW2 on his MLC Ex. PW9/A are opined to be grievous in nature. The condition of PW2 after receiving such grievous injuries can be well imagined. However, PW1 did not suffer any injury. Again it is not strange if PW2 being seriously injured, was not in a position to notice the arrival of two home guard constables i,e. PW12 and PW15 at the spot and there apprehending of accused Yusuf and Anisuddin from public persons. In view of these reasons, I do not agree with the contentions raised by Ld. Amicus Curiae and Ld. Defence counsel that presence of home guard constables i.e PW12 and PW15 is doubtful.
24. Other contention raised by Ld. Amicus Curiae is that there are contradictions in the statement of PW12 and PW15 vis-a-vis statement of PW1 and PW2 regarding body party where PW2 FIR No. 468/06 14 page of 28 sustained injuries which further creates doubt regarding the presence of PW12 and PW15 at the spot. As per PW1, one of the assailants who was having knife in his hand attacked Jitender with knife as a result of that he received injuries. As per PW2, one of the assailant gave chhura blow on his abdomen. As per PW12 Jitender was having injuries on his chest and was bleeding. Similarly as per PW15 Jitender was bleeding from his chest. As per MLC Ex. PW9/A PW2 suffered incised stab wounds on infra-umbilical i.e. lower abdomen. I agree with this contention raised by Ld. Amicus Curiae that there are contradictions in the statements of PW12, PW15 and PW2 regarding part of the body on which PW2 suffered injuries. A person may confuse upper abdomen with chest. But certainly one cannot confuse lower abdomen with chest but it has to be kept in mind that statements of PW12 and PW15 were recorded after a gap of 4 to 5 years. Reliance is placed upon Bharwada Bhoginbhai Hirjibhai(Supra) where Apex Court has observed that The powers of observation differ from person to person. What one may notice, another may not. An object or movement might emboss its image on one person's mind, whereas it might go unnoticed on the part of another. By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. In view of these reasons, contradictions pointed by Ld Amicus Curiae can be safely ignored.
25. Case of the prosecution is that accused Yusuf and Annisuddin were apprehend at the spot. Accused Naseem @ Ganja and Nafees with third associate Hafeez( not arrested) ran away from the spot on the motorcycle of PW2. Accused Naseem @ Ganja and Nafees were subsequently arrested. Let us see what evidence prosecution has been able to bring on record against accused persons.
Accused YUSUF AND ANNISUDDIN FIR No. 468/06 15 page of 28
26. Complainant PW1, injured PW2, two home guard constables i.e. PW12 and PW15, PW15A ASI Kamal Kumar who was in PCR Romeo 31 and reached at the spot, IO PW16 and PW6 Ct. Lalit all have separately identified both the accused who were apprehended at the spot. Both PW1 and PW2 have specifically stated that accused Yusuf was armed with knife and he gave knife blow on the abdomen of PW2. There is recovery of knife from the possession of accused Yusuf and same was identified by PW1, PW2 and IO PW16. There is recovery of a purse containing Rs.60/-, one Airtel I-D card and some visiting cards belonging to PW1 from the possession of accused Annisuddin. Statements of PW1, PW2, PW12, PW15 and IO PW12 are consistent on this point. These articles were also identified by PW1, PW6 and IO PW16.
27. Prosecution has been able to prove its case beyond reasonable doubt that both these accused persons participated in the dacoity and were apprehended at the spot . There is clear evidence that accused Yusuf used deadly weapon i.e. knife while committing this dacoity and caused grievous injuries to PW2 in the process.
ACCUSED NAFEES
28. This accused was arrested on 19.09.06 by Special Cell, Lodhi Colony in FIR No. 67/06 under Section 25 Arms Act. There he stated to have made disclosure statement Ex.PW17/A regarding his involvement in the present case. As per IO PW16 on 19.09.06 he came to know about the arrest of accused Nafees by Special Cell,Lodhi Colony. Thereafter this accused was arrested in the present case.
29. Sh Raje Ram Ld. Counsel for accused Nafees submitted that accused Yusuf and Anisuddin both are stated to have arrested from the spot and have not named accused Nafees in their disclosure FIR No. 468/06 16 page of 28 statements. It is stated that there is no recovery of any looted article from his possession. It is stated that all these create doubt regarding involved of this accused in this crime and benefit of it needs to given to him.
30. Ex.PW3/A and B are the disclosure statements of accused Yusuf and Anisuddin dated 13.09.06 where name of this accused is found mentioned. It is relevant to mention here that mere mentioning of the name of this accused in the disclosure statement of his co accused cannot be taken as incriminating evidence against him. It is discussed because Ld. Defence counsel has raised contention that the name of this accused is not given in the disclosure statements of two co accused who are stated to be arrested from the spot.
31. As per IO PW16 on their arrest both these accused did not disclose anything but on 13.09.06 both were rigorously interrogated and at 11 PM they both made disclosure statements. Disclosure statements Ex.PW3/A and B were recorded after gap of two days after arrest of accused Yusuf and Annisuddin.
32. I agree with Ld. Defence counsel that no looted article was recovered from the possession of this accused.
33. Ex.PW16/A is the TIP of this accused conducted by Sh Rakesh Kumar Ld MM on 25.09.06 wherein he refused to participate in TIP taking plea that he has been shown to the witnesses and his photographs were taken in the police station. PW1 during his cross by this accused has specific denied the suggestion that before TIP he was called at police station Lodhi Road by the police to identify accused Nafees. Accused failed to bring any cogent reason on record to justify his refusal in participating in TIP. His refusal to participate in TIP without any reason will certainly attract adverse inference against him. Moreover, as already discussed, PW1 has FIR No. 468/06 17 page of 28 identified this accused as one the assailants,who looted them. PW1 has specifically stated that Nafees and Naseem came later on and joined the commission of robbery along with Yusuf and Anisuddin. PW2 has failed to identify this accused as one the culprits. Reasons justifying non identification of this accused by PW2 are already discussed. Non identification of this accused by PW2 does not cause dent in the prosecution case regarding the involvement of this accused in this crime.
NASEEEM @ GANJA
34. This accused was arrested on 14.09.06 on the identification of accused Yusuf. PW5 Ct. Rajeev is also a witness of arrest of this accused. He has supported statement of IO PW16. As per IO PW16, during interrogation accused made disclosure statement Ex.PW3/A, he was kept in a muffled face as his TIP has to be conducted. On 18.09.06 TIP of accused was conducted at Tihar Jail where PW1 correctly identified accused. On 21.09.06 accused led them to his house at Gali No.6, Old Mustafabad and from there he got recovered the key with ring of the motorcycle from left drawer of his dressing table. On 16.10.2006 TIP of accused was conducted by Ld MM and injured Jitender i.e. PW2 correctly identified case property.
35. Ex. 18/A is the TIP conducted by PW18 Ms. Poonam Chaudhary , Ld ADJ while working as MM. In this TIP, accused was correctly identified by PW2. It is noteworthy to mention her that TIP was conducted only after about 7 days of the incident.
36. Ex. PW7/C is the recovery memo of Key of the motorcycle from the possession of this accused. PW7 Ct. Daya Chand and PW8 HC Maharaj Singh are the two witnesses of this recovery. Both these witnesses have supported statement of IO PW16 regarding this recovery. Ex. PW17/B is the TIP, conducted by Sh. J.N. Pandey, Ld. FIR No. 468/06 18 page of 28 ACMM, of the case property in which PW2 correctly identified case property i.e key of his motorcycle. It is relevant to mention here that motorcycle number No. DL7S AB-3836 was recovered from the area of PS Gokapuri on 13.09.06 by PW10 ASI Subhash Chand vide memo Ex.PW10/A. The disclosure statement Ex. PW3/A which led of recovery of key ring of the motorcycle is admissible u/s.27 of Indian Evidence Act.
37. As already discussed complainant PW1 has correctly identified this accused as one of the culprits. He has specifically stated that this accused along with accused Nafees came and participated in act following accused Yusuf and Anisuddin.
FINDINGS
38. PW1 has specifically stated that accused Yusuf was having a knife in his hand and it is clear from his testimony that accused Yusuf has used that knife while looting and injuring PW2. PW2 has also stated that accused Yusuf was having a Chhura in his hand. Though it has come in the statements of both PW1 and PW2 that one of the assailants was having katta with him but who was in possession of this katta, none of witness has clarified in his statement.
39. In view of the aforesaid reasons, it stands established that all the four accused in the company of their fifth associate Hafeez( not arrested) sharing common intention committed dacoity by looting PW1 of his purse containing Rs.60/- and other documents and motorcycle No. DL7S AB-3836 Make Bajaj Pulsar of PW2. While committing docoity accused Yusuf used a knife i.e deadly weapon. Though one of the accused or their fifth associate was also armed with Katta but either PW1 or PW2 has failed to identify that accused. Reliance is place upon Ashfaq Vs. State(Govt. of NCT of Delhi) AIR 2004 SC 1253 where Apex Court has observed that the FIR No. 468/06 19 page of 28 provision postulates only the individual act of the accused to be relevant to attract section 397 PC and thereby inevitably negates the use of principle of constructive or vicarious liability engrafted in section 34 IPC. Accordingly accused Anisuddin, Nafees and Naseem @ Ganja are held guilty for the offence punishable under Section 395/34 IPC and accused Yusuf is held guilty for the offence punishable under Section 395/34 IPC read with Section 397IPC. They all are convicted accordingly.
Announced in the open Court ( SANJAY GARG )
on 28.08.2012 Addl. Sessions Judge-01 (East)
Karkardooma Courts, Delhi
FIR No. 468/06 20 page of 28
IN THE COURT OF SANJAY GARG: ADDITIONAL SESSIONS JUDGE:
01(EAST) : KARKARDOOMA COURT: DELHI.SC No. 161/2006 FIR No. 468/06
PS. Mandawali US. 395/34 IPC r/w Section 397 IPC State Vs. Yusuf S/o. Sh. Bundu @ Bashir R/o. Phool Jhari Factory, near Jhor New Mustafabad, Loni, Ghaziabad, UP ORDER ON QUANTUM
1. I have heard arguments of Sh. Ashok Kumar, Ld. Addl. PP for the State and Sh. S. Hasan Zaidi Ld. Amicus Curiae for convict Yusuf on quantum of sentence.
2. Ld. APP submits that keeping in view gravity of the offence maximum punishment be awarded to the convict. Ld. Amicus Curiae for convict submits that the convict is first offender, not involved in any other criminal case. It is stated that he is of young age of 32 years. It is stated that he has a family constituting his widow mother, ailing wife and six years old son who are dependent upon him for their livelihood. It is stated that he is very poor and his family has no other source of income to support them. It is stated that he has spent about 30 months as under-trial in this case and taking lenient view he be sentenced to the period imprisonment already undergone by him.
3. The convict with his associates committed crime at the public place. There is no evidence if he is involved in any other criminal case.
Such type of the incidents are on the rise and to arise public confidence required to be tackled strictly. There is clear evidence that at the time of commission of this offence, convict was in possession of a knife. He is held guilty for the commission of offence under Section 397 IPC and the minimum punishment provided for this offence is not less than seven FIR No. 468/06 21 page of 28 years.
4. Keeping in view the facts and circumstances of this case, convict is sentenced as under :-
-2-For the offence punishable u/s. 395/34 IPC read with Section 397 IPC he is sentenced to undergo RI for seven years and shall also be liable to pay fine of Rs. 1000/- in default to undergo SI for one month.
5. Benefit of section 428 Cr. PC be given to accused. Copy of judgment and this order be given to the convict free of cost. File be consigned to record room.
Announced in the open Court ( SANJAY GARG )
on 03.09.2012 Addl. Sessions Judge-01 (East)
Karkardooma Courts, Delhi
FIR No. 468/06 22 page of 28
IN THE COURT OF SANJAY GARG: ADDITIONAL SESSIONS JUDGE:
01(EAST) : KARKARDOOMA COURT: DELHI.SC No. 161/2006 FIR No. 468/06
PS. Mandawali US. 395/34 IPC State Vs. Anisuddin @ Annish S/o. Sh. Salim R/o. Phool Jhari Factory, near Jhor New Mustafabad, Loni, Ghaziabad, UP ORDER ON QUANTUM
1. I have heard arguments of Sh. Ashok Kumar, Ld. Addl. PP for the State and Sh. S. Hasan Zaidi Ld. Amicus Curiae for convict Anisuddin on quantum of sentence.
2. Ld. APP submits that keeping in view gravity of the offence maximum punishment be awarded to the convict. Ld. Amicus Curiae for convict submits that the convict is first offender, not involved in any other criminal case. It is stated that he is of young age of 28 years. It is stated that he has a family constituting his widow mother, wife and eight month old daughter,who are dependent upon him for their livelihood. It is stated that he is very poor and his family has no other source of income to support them. It is stated that he has spent about 23 months as under-trial in this case and taking lenient view he be sentenced to the period imprisonment already undergone by him.
3. The convict with his associates committed crime at the public place. There is no evidence if he is involved in any other criminal case.
Such type of the incidents are on the rise and to arise public confidence required to be tackled strictly. In view of the nature of the offence, the period of imprisonment undergone by the convict is not a sufficient punishment.
4. Keeping in view the facts and circumstances of this case, convict is FIR No. 468/06 23 page of 28 sentenced as under:-
-2-For the offence punishable u/s. 395/34 IPC he is sentenced to undergo RI for five years and shall also be liable to pay fine of Rs.
750/- in default to undergo SI for three weeks .
5. Benefit of section 428 Cr. PC be given to accused. Copy of judgment and this order be given to the convict free of cost. File be consigned to record room.
Announced in the open Court ( SANJAY GARG )
on 03.09.2012 Addl. Sessions Judge-01 (East)
Karkardooma Courts, Delhi
FIR No. 468/06 24 page of 28
IN THE COURT OF SANJAY GARG: ADDITIONAL SESSIONS JUDGE:
01(EAST) : KARKARDOOMA COURT: DELHI.SC No. 161/2006 FIR No. 468/06
PS. Mandawali US. 395/34 IPC State Vs. Naseem @ Ganja S/o. Sh. Abdulah
R/o. Gali No. 6, Old Mustafabad, Gokalpuri,Delhi ORDER ON QUANTUM
1. I have heard arguments of Sh. Ashok Kumar, Ld. Addl. PP for the State and Sh. S. Hasan Zaidi Ld. Amicus Curiae for convict Naseem @ Ganja on quantum of sentence.
2. Ld. APP submits that keeping in view gravity of the offence maximum punishment be awarded to the convict. Ld. Amicus Curiae for convict submits that the convict is first offender, not involved in any other criminal case. It is stated that he is of young age of 40 years. It is stated that he has a family constituting his wife and seven children who are dependent upon him for their livelihood. It is stated his eldest daughter is of marriageable age. It is stated that he is very poor and his family has no other source of income to support them. It is stated that he has spent about 16 months as under-trial in this case and taking lenient view he be sentenced to the period imprisonment already undergone by him.
3. The convict with his associates committed crime at the public place. There is no evidence if he is involved in any other criminal case.
Such type of the incidents are on the rise and to arise public confidence required to be tackled strictly. In view of the nature of the offence, the period of imprisonment undergone by the convict is not a sufficient punishment.
FIR No. 468/06 25 page of 28
4. Keeping in view the facts and circumstances of this case, convict is sentenced as under:-
-2-For the offence punishable u/s. 395/34 IPC he is sentenced to undergo RI for five years and shall also be liable to pay fine of Rs.
750/- in default to undergo SI for three weeks .
5. Benefit of section 428 Cr. PC be given to accused. Copy of judgment and this order be given to the convict free of cost. File be consigned to record room.
Announced in the open Court ( SANJAY GARG )
on 03.09.2012 Addl. Sessions Judge-01 (East)
Karkardooma Courts, Delhi
FIR No. 468/06 26 page of 28
IN THE COURT OF SANJAY GARG: ADDITIONAL SESSIONS JUDGE:
01(EAST) : KARKARDOOMA COURT: DELHI.SC No. 161/2006 FIR No. 468/06
PS. Mandawali US. 395/34 IPC State Vs. Nafees S/o. Sh. Hanif Khan R/o. Mohalla, Jamalpura, Near Butcher Khana, Rashid Gate,Loni Ghaziabad,UP. ORDER ON QUANTUM
1. I have heard arguments of Sh. Ashok Kumar, Ld. Addl. PP for the State and Sh. Raje Ram Ld. Defence Counsel for convict Nafees on quantum of sentence.
2. Ld. APP submits that keeping in view gravity of the offence maximum punishment be awarded to the convict. Ld. Defence counsel for convict submits that the convict is first offender, not involved in any other criminal case. It is stated that he is of young age of 32 years. It is stated that he has a family constituting his old parents, wife and five children who are dependent upon him for their livelihood. It is stated that he is very poor and his family has no other source of income to support them. It is stated that he has spent about two and half months as under-trial in this case and taking lenient view he be sentenced to the period imprisonment already undergone by him.
3. The convict with his associates committed crime at the public FIR No. 468/06 27 page of 28 place. There is no evidence if he is involved in any other criminal case.
Such type of the incidents are on the rise and to arise public confidence required to be tackled strictly. In view of the nature of the offence, the period of imprisonment undergone by the convict is not a sufficient punishment.
4. Keeping in view the facts and circumstances of this case, convict is sentenced as under:-
-2-For the offence punishable u/s. 395/34 IPC he is sentenced to undergo RI for five years and shall also be liable to pay fine of Rs.
750/- in default to undergo SI for three weeks .
5. Benefit of section 428 Cr. PC be given to accused. Copy of judgment and this order be given to the convict free of cost. File be consigned to record room.
Announced in the open Court ( SANJAY GARG )
on 03.09.2012 Addl. Sessions Judge-01 (East)
Karkardooma Courts, Delhi
FIR No. 468/06 28 page of 28