Delhi District Court
State vs Ajay @ Sahid & Ors. on 20 May, 2011
FIR no.119/08
28.05.2011
Pre: Ld. APP for the state.
Accused Ajay @ Shahid, Noor Mohd. and Mohd. Mustafa are in
JC. Other accused are on bail.
Ld. Counsel Sh. Tara Singh for accused persons.
Final arguments heard. File perused, vide separate judgment
placed along side in the file, I acquit accused persons by giving them
benefit of doubt for the offences u/s 399/402 IPC and 25 Arms Act.
Accused persons those who are in JC be released from jail, if not
required in any other case. Bail bonds of accused persons those who
are on bail, are cancelled and sureties are discharged. Case property if
any, be confiscated to the state. File be consigned to record room.
At this stage, accused persons are directed to furnish personal
bond in the sum of Rs.5000/ for the period of six months that in case
the decision is set aside in any appeal or other proceedings they shall
present themselves before the court concerned to face further
proceedings in accordance with law.
(RAJ KAPOOR)
ASJ02/West Distt.
Tis Hazari Courts, Delhi
FIR no.119/08
State Vs Ajay @ Sahid & Ors.
1 /
IN THE COURT OF SH. RAJ KAPOOR, LD. ADDITIONAL
SESSIONS JUDGE - 2 : WEST/ TIS HAZARI COURTS: DELHI.
Case ID Number.
Sessions Case No. 323/1/10
Assigned to Sessions. 04/07/08
Arguments heard on 28.05.2011
Date of order. 28.05.2011
FIR No. 119/08
State Vs 1. Ajay @ Sahid @ Akhtar s/o Mohd.
Shakeer R/o Jhuggi No. NIL, A Block,
JJ Colony, Bawana, Delhi.
2. Mohd. Mustafa s/o Mohd. Haneef,
R/o Village Viseepur PS Kulwariya,
Distt. Hawra (West Bengal)
3. Ramzan @ Babu s/o Moh. Muktasar,
R/o Jhuggi K18, K Block, JJ Colony
Wazirpur, Delhi.
4. Sahid Islam s/o Sh. Makeezul Khan,
R/o Jhuggi E296, JJ Colony, Bawana,
Delhi.
5. Noor Mohd. Sheikh s/o Sh. Saleem
Sheikh, R/o Village Viseepur, PS
Kulwariya, Distt. Hawra, (W. Bengal)
6. Mohd. Shajid s/o Sh. Abdul Qadir,
R/o Bhumyapur Tubewell Wali Gali,
Mohalla Gulzar Ibrahim, Shehar Meerut
(U.P.)
Police Station Ashok Vihar
Under Section 399/402/34 IPC and 25 Arms Act.
JUDGEMENT
1. Briefly facts of the case are that on 11.04.2008 ASI Kamal (PW7) at FIR no.119/08 State Vs Ajay @ Sahid & Ors.
2 / about 07.05 p.m. alongwith HC Rajesh, Constable Khilari Ram, Ct.Rajesh, Ct. Vinod was on Area Petrolling duty and when they reached at bus stop Laxmi Bai College Delhi, HC Suman Prashad, two constables of same name i.e. Ct. Surinder and Ct. Surrinder met him. In the meanwhile one secret informer came and informed that six persons are present inside Ashoka Park and they are planning to commit decoity having weapons and if raid is conducted they can be arrested. On receiving this information PW7 / I.O. requested 56 passersby to join the raiding party but they did not join the raiding party and went away from there without telling their names and addresses. Thereafter, I.O. constituted a raiding party consisting of aforesaid police officials. I.O. deputed HC Rajesh to hear the conversation of accused persons.
2. After sometime HC Rajesh came and stated that six persons are present inside the park and they are planning to commit dacoity in a Kothi at Stayawati Colony , where a rich person resides, having cash and Jewellary. Out of those six persons, one person who was of FIR no.119/08 State Vs Ajay @ Sahid & Ors.
3 / strong built was saying that:
'he would get the door opened and the moment door is opened others have to entered inside the house and all the persons inside that house would be kept at the point of knife and if anyone of them raises alarm then the weapon of offence can be used and after having committed dacoity they would again meet at the same place.'
3. I.O. briefed regarding the same to the members of the raiding party.
I.O. stated that he alongwith Surrinder and Ct. Vinod would proceed from left side of the park gate; HC Rajesh, Ct. Khilari Ram would come from the opposite direction; HC Suman Prashad alongwith Ct.
Surrinder would come in front direction to cardon accused persons.
4. Police party over powered all the six accused persons. Accused Ajay @ Shahid was over powered by Ct. Surinder. Accused Mohd.
Mustafa was over powered by Ct. Vinod. Accused Shahid was over powered by Ct. Ramesh. Accused Ramjan @ Babu was over powered by Ct. Surrinder. Accused Noor Mohd. Sheikh was over powered by HC Rajesh and accused Sajid was over powered by HC Suman Prashad.
FIR no.119/084 /
5. I.O. conducted formal search of accused Ajay @ Shahid and from his right dub, one buttondar knife was recovered. Another buttondar knife was recovered from the right dub of Mohd. Mustafa and one more knife was recovered from accused Shahid@ Islam and one more buttondar knife was recovered from Ramjan. One Khukri was also recovered from the accused Noor Mohd. Sheikh.
Accused Sajid was having a bag which was found containing, two hammer, two screw driver and one plier and one punch.
6. I.O. measured all the four buttondar knife, one Khukri and prepared their sketch memos vide Ex.PW7/A, Ex.PW7/B and Ex.PW5/A, Ex.PW7/C and Ex.PW3/A which bears his signature at point B. He Kept the case property in four separate parcels and all the parcels were sealed with the seal of KS and the same were taken into possession vide seizure memos Ex.PW7/D, Ex.PW7/E, Ex.PW7/F and Ex.PW5/B, Ex.PW3/B which bears his signatures at point B. FIR no.119/08 State Vs Ajay @ Sahid & Ors.
5 / I.O. kept the bag containing the articles in another parcel and it was also sealed with the seal of KS and was taken into possession vide seizure memo Vide Ex.PW2/A which bears his signatures at point B. Thereafter I.O. prepared Tehrir vide Ex.PW7/G which bears his signature at point A and gave it to HC Rajesh for getting the case registered.
nd
7. After sometime HC Rajesh alongwith SI Saheb Singh/ 2 IO came at st the spot to whom 1 I.O. /ASI Kamal (PW7) handed over the sealed case property, the documents prepared by him and all the six accused persons. SI Saheb Singh prepared site plan at the instance st of 1 I.O.
8. After completion of the investigation which was conducted by the police officials the challan was filed to the court of ld. MM concerned and the same was committed to the court of Sessions which was received on 04.07.2008. Consequent upon committal of the case to the Court of Sessions charge for the offence u/s 399/402/34 IPC FIR no.119/08 State Vs Ajay @ Sahid & Ors.
6 / was framed against all the accused persons and charge for the offence u/s 25 Arms Act was framed against (5) accused persons namely 1.Ramzan @ Babu, 2.Ajay @ Shahid @ Akhtar, 3.Shahid Islam, 4.Mohd. Mustafa and 5.Noor Mohd. Sheikh. Accused persons did not plead guilty and claimed trial.
9. To prove and substantiate its case the prosecution has examined 8 witnesses.
10.PW1 Ct. Ravinder Kaushik is a formal witness being DD Writer. This witness came to the witness box and got exhibited the photocopy of departure entry no. DD no.55B in respect of police officials namely Ct. Suman Parsad, Ct.Vinod and Ct. Surender on 11.04.2008 vide Ex.PW1/A. This witness has not been crossexamined.
11.In this case the most material witness is PW7 ASI Kamal. For the sake of brevity and convenience his statement is being reproduced verbatim which is as under: FIR no.119/08 State Vs Ajay @ Sahid & Ors.
7 / "On 11.04.2008 , I was posted at PS AshokVihar. On that day at about 07.05Pm I alongwith HC Rajesh, Constable Khilari Ram and another Constable namely Rajesh, constable Vinod was on Area Petrolling and we reached at bus stop Laxmi Bia College Delhi, where HC Suman Prashad, Constable surinder and Another constable Surrinder met me. One secret informer met me who informed that six persons are present inside Ashoka Park and are planning to commit decoit, they were having weapons and if ladies conducted they can be arrested. I requested 56 passer by to join the raiding party but they did not join the raiding party and went away from there without telling their names and addresses. Thereafter I constituted the raiding party consisting of aforesaid police official. I deputed HC Rajesh to hear the conversation amongst accused persons. After sometime HC Rajesh came to me and stated that six persons are present inside the park and were planning to commit dacoity in a Khoti at Stayawati Colony, where a rich person reside, having cash and Jewellary. Out of those six persons, one person who was of strong built was saying that he would get the door opened and the moment door is opened others have to entered inside the house and all the persons inside that house would be kept at knife point and if any one of them raises alarm then the weapon of offence can be used. and after having committed dacoity they will again meet at the same place. I briefed regarding the same to my members of the raiding party. I stated that I alongwith Surrinder and constable Vinod would proceed from left side of the park gate and HC Rajesh, Constable Khilari Ram would come from the opposite direction and HC Suman Prashad alongwith surrinder would come in front direction to cardon accused person. We over powered six accused persons and on interrogation their names reveals i.e. Ajay @ Shahid, Mohd. Mustafa, another Shahid, Ramjan @ Babu, Noor Mohd. Shek and Sajid. Accused Ajay @ Shahid was over powered by constable Surinder. Accused Mohd. Mustafa was over powered by constable Vinod. Shahid was over powered by contable Ramesh, Ramjan @ Babu was over powered by constable surrinder, Noor Mohd. Shek was over powered by HC Rajesh and Sajid was over powered by HC Suman Prashad. I conducted formal search of accused Ajay @ Shahid and from his right dub, one button acquitted knife was recovered. Another button acquitted knife was recovered from the right dub of Mohd. Mustafa and one FIR no.119/08 State Vs Ajay @ Sahid & Ors.
8 / more knife was recovered from accused Shahid@ Islam and one more button acquitted knife was recovered from Ramjan. One Khukri was also recovered from the accused Noor Mohd. Shek. Accused Sajid was having a bag which was found containing, two hammer, two screw driver and one plier and one punch. I measured all the four button acquitted knife, one Khukri and prepared their sketch vide Ex.PW7/A, Ex.PW7/B and Ex.PW5/A, Ex.PW7/C and Ex.PW3/A which bears my signature at point B. I Kept the case property in four separate parcel and all the parcel sealed with the seal of KS and the same were taken into possession through seizure memo Ex.PW7/D, Ex.PW7/E, Ex.PW7/F and Ex.PW5/B, Ex.PW3/B which bears my signatures at point B. I kept the bag containing the articles bear in another parcel and it was also sealed with the seal of KS and was taken into possession through seizure memo Vide Ex.PW2/A which bears my signatures at point B. Thereafter I prepared tehrir Ex.PW7/G which bears my signature at point A, I gave tehrir to HC Rajesh for getting the case registered. After some time HC Rajesh alongwith SI Saheb Singh, second IO came at the spot and I handed over the sealed case property, the documents prepared by me and all the six accused persons before the second IO. SI Saheb singh prepared site plan at my instance. Rest of the proceeding were conducted by SI Saheb Singh and I was relieved from there.
I identified all the accused persons present before the court. I can also identify the case property if shown to me.
At this stage MHCM produced one parcel sealed with the seal of the court. Parcel is got opened. It is found containing one black colour regsine bag. The bag is further containing two hammer, one plier, two screw driver and one metal punch, one chisel, one spanner. I have seen the case property. This is the same bag and the articles therein which was recovered form accused Sajid. The regsine bag containing the aforesaid article is collectively Ex.P1.
At this stage MHCM produced one parcel sealed with the seal of the court. Parcel is got opened. It is found containing one Khukri in a case, having metal handle of golden and brown colour. I have seen the Khukri, which was recovered from the possession of Accused Noor Mohd. Shek. The Khukri is Ex.P2 and its case is Ex.P2/A. At this stage MHCM produced one parcel sealed FIR no.119/08 State Vs Ajay @ Sahid & Ors.
9 / with the seal of the court. Parcel is got opened. It is found containing one button acquitted knife. I have seen the Knife. This is the same knife which was recovered from the possession of Accused Islam. Same is Ex.P3.
At this stage MHCM produced one sealed parcel. Parcel is got opened. It is found containing one button acquitted knife. I have seen the Knife. This is the same knife which was recovered from the possession of Accused Ajay @ Shahid. Same is Ex.P4.
At this stage MHCM produced another sealed parcel. Parcel is got opened. It is found containing one button acquitted knife. I have seen the Knife. This is the same knife which was recovered from the possession of Accused Mustafa. Same is Ex.P5.
At this stage MHCM produced another sealed parcel. Parcel is got opened. It is found containing one button acquitted knife. I have seen the Knife. This is the same knife which was recovered from the possession of Accused Ramjan. Same is Ex.P6.
XXX By Sh. Ramneek Kumar, Counsel for the accused Ramjan @ Babu, Shahid, Islam and Mohd. Sajid.
The secret informer was at about 2425 years old. He gave information at bus stop Satyawati College. He took about 2025 minutes constituting the raiding party. We reached at the place of occurrence at about 07.35 PM. The distance between the place where we received secret information and the park is 100125 metre and we reached their on foot. I did not give any notice to any of the public persons. There was road light and accused persons were behind the wall of the park. I did not hear the conversation of the accused persons. I cannot tell the direction of the faces of the accused persons who were sitting inside the park. Accused persons could not run as we cardoned them. HC Rajesh left the spot alongwith tehrir at about 11.05 PM and he came back at about 12.00 mid night. I was relieved from the spot after the arrival of second IO. I handed over the seal to constable Khilari Ram, after it was used. I affixed the seal on the case property. second IO prepared the site plan on the spot. Constable Khilari Ram returned the seal to me after 23 days. I do not know as to who signed on the disclosure statement of the accused FIR no.119/08 State Vs Ajay @ Sahid & Ors.
10 / persons. I finally left the spot at about 12.30 in the night. ACP/DCP did not visit the spot. At this stage LD. Defence counsel specifically asked from the witness that he can identify accused present before the court by name and by face. Witness has correctly identified accused by name and face. We did not offer our search before the accused person, before taking their search. It is wrong to suggest that I did not receive any secret information or that accused persons were not arrested from the park or that nothing was recovered from the possession or that same was planted over them or that all the proceedings were completed at the PS or that accused Mohd. sajid was called through telephone from his residence, to the Police Station where he was falsely implicated in the present case or that I am deposing falsely being the IO of the case. XXX By remaining accused persons. Cross examination adopted as above."
12.Having perused the testimony of PW7 ASI Kamal / I.O. it has come on record that there public persons were present but no public witness join the raiding party. I.O. did not issue any notice to them.
Besides, it has also come on record that accused persons were having weapons and they were overpowered by the police party. It is difficult to believe that there is no scuffle with accused persons when police came to apprehend them. Besides, I.O. has not brought on record any concrete proof of conversation what the accused persons were doing, in the era of high technology.
FIR no.119/0811 /
13.PW2 HC Khalari Ram, PW3 HC Rajesh and P5 Ct. Rajesh Kumar have deposed more or less on similar lines as deposed by PW7 ASI Kamal being accompanied by him. I have perused the cross examination done by defence counsel. In the crossexamination I found contradictions which are attributable due to the long duration of time and memory of a human being.
14.PW4 Lady Ct. Rajrani is formal witness being DD writer. She came to the witness box and got exhibited the departure entry no.DD no.45 in respect of ASI Kamal vide Ex.PW4/A. This witness has not been crossexamined.
nd
15.PW6 ASI Saheb Singh is the 2 I.O. of the case. This witness after completing the formalities of the case filed the challan before the court. This witness has been crossexamined. In the cross examination it has come on record that he recorded disclosure statements of accused persons in the park itself beneath mercury light. He denied the suggestion that case property was planted FIR no.119/08 State Vs Ajay @ Sahid & Ors.
12 / upon the accused persons.
16.PW8 is Addl. Public Prosecutor for State. His statement was recorded with respect to dropping the name of HC Suman Parsad from the list of witnesses being a witness of same facts as deposed by other witnesses.
17.After recording the statements of above witnesses, prosecution evidence was closed. After that statements of accused persons u/s 313 Cr. P. C. were recorded in which they denied all the allegations and stated that they have been falsely implicated in this case.
However, they did not lead any defence evidence.
18.Thereafter, case was fixed for final arguments. Ld. counsel for the accused persons argued at length. During the course of arguments ld. counsel for accused persons argued that accused persons are innocent and they have been falsely implicated in this case. He further argued that accused persons have no concern with the case.
FIR no.119/0813 / All allegations are false and witnesses are interested witnesses. Ld. counsel for accused persons again argued and emphasized on the point that no witness from public has been joined in this case while it has categorically come on record that there were many public persons present. He again stated that there are so many major contradictions in the statement of witnesses. Ld. counsel further argued that accused are innocent persons and they have been falsely implicated in this case. On these grounds he prayed for acquittal of accused persons.
19.Contrary to it, ld. APP argued and submitted that there is sufficient evidence on record to convict the accused persons. All the accused persons have been identified by the witnesses. Case property has also been proved on record. On these grounds ld. APP submitted that accused persons be convicted.
20.On perusal of all depositions of the prosecution witnesses and their crossexaminations. I find major contradictions and variations in their FIR no.119/08 State Vs Ajay @ Sahid & Ors.
14 / statements. On the major contradictions the Hon'ble Supreme Court of India has observed in the following words in a case titled as 'Jaskaran Singh Vs State 1997 SCC (Crl) 651' : "When the evidence of first informant is found to be full of contradictions, exaggerations and improvements, he cannot be held to be a truthful witness".
Again on the point of contradictions the Hon'ble Supreme Court in case State of UP Vs Bhagwan AIR 1997 SC 3292: (1997) 1 SCC 19 made the following observations which are very relevant crucial and dominant in deciding the fate of the present case: "minor discrepancies in the evidence of the eyewitnesses are immaterial unless they demolished the basic case of the prosecution."
The observations made in the aforesaid two cases by the Hon'ble Supreme Court are exfacie indicative of the fact that a clear distinction be made between the major contradictions and minor contradictions when the contradictions are minor the truthfulness of the witness cannot be discredited in all and contrary to it when the contradictions are major these affect the root of the case and leave FIR no.119/08 State Vs Ajay @ Sahid & Ors.
15 / an impression of untruthfulness of the witnesses.
21.Before reaching at any conclusion let the relevant sections i.e. 399 IPC and 402 IPC be produced verbatim which are as under:
Section 399 IPC "Making preparation to commit dacoity Whoever makes any preparation for committing dacoity, shall be punished with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine."
Section 402 IPC "Assembling for purpose of committing dacoity -
whoever, at any time after the passing of this Act, shall be one of five or more persons assembled for the purpose of committing dacoity, shall be punished with rigorous imprisonment for a term which may extend to seven years, and shall also be liable to fine."
22.On careful perusal of relevant sections the following ingredients of respective sections must be proved on record:
Ingredients of Section 399 IPC
i) it is necessary to prove that the assembly of the accused persons is for preparation of dacoity;
ii) it must be proved that the act for which preparation was being made was a dacoity; and
iii) it must be cogent evidence in support of the charge that the accused persons had assembled to commit dacoity.
Ingredients of Section 402 IPC FIR no.119/08 State Vs Ajay @ Sahid & Ors.
16 /
i) that there was an assembly of five or more persons;
ii) that the assembly was constituted for the purpose of committing dacoity; and
iii) that the accused persons were members of that assembly"
23.I have perused the case file and gone through the testimonies of all witnesses also very carefully. All these witnesses have been cross examined by the ld. defence counsel. In the crossexamination of PW7 ASI Kamal did not issue any notice to the public persons who refused to join the raiding party. He did not hear the conversation of accused persons. He could not tell the direction of the faces of the accused persons who were sitting inside the park. It has also come in his crossexamination that there was road light and accused persons were behind the wall of the park. Accused persons could not run. Having perused the testimony of police officials including PW7 ASI Kamal / I.O. it has come on record that public persons were present there but no public witness join the raiding party. I.O. did not issue any notice to them. Besides, it has also come on record that accused persons were having weapons and they were overpowered by the police party. It is difficult to believe that there is FIR no.119/08 State Vs Ajay @ Sahid & Ors.
17 / no sign of any struggle from the side of accused persons when police party reached there to apprehend them. Besides, I.O. has not brought on record any concrete proof of conversation what the accused persons were doing, in the era of high technology.
Therefore, keeping in view of these major contradictions I am of the view that n o ingredients of section 399 and 402 IPC has been proved on record by the prosecution because it has been observed that no specific instance of attempting to commit any sort of offence either robbery or otherwise jointly has come on record in the testimony of any of the witnesses, therefore, it raises a strong and sufficient doubt whether accused persons were gathered at the spot for committing any robbery/ offence. In Brijlal Mandal Vs State 1978 Cr. L J 877 (Pat) it has been observed that:
"it is necessary to prove that the assembly of the accused persons is for preparation of dacoity. Only because the accused persons were waiting in a waiting hall of a railway station, it cannot be held that they had assembled there for preparation to commit dacoity"
24.Again, in another case Madhusudan Vs State AIR 1958 Cal 25 :
1958 Cr L J 25 has been observed that :
FIR no.119/08
State Vs Ajay @ Sahid & Ors.
18 / "So some act amounting to preparation must be proved and it has further to be proved that the act for which preparation was being made was a dacoity."
It has also been held in case Sukhlal Vs State of Madhya Pradesh 1998 Cr. L. J. 1366 (M) that:
"In order to bring home the offence under section 399 I. P. Code the prosecution has to establish that the act of the accused amounted to preparation and this preparation was to commit dacoity. In other words, the prosecution must show that there were persons who had conceived the design of committing the dacoity and they were preparing in prosecution of that design. So far as the offence under Section 402 I. P. Code is concerned, it may be mentioned that this section applies to mere assembling without proof of other preparation. Therefore, the offence under section 399 I.P. Code is preparation to commit dacoity, whereas the offence under section 402 I.P. Code is complete as soon as five or more persons assemble together for the purpose of committing dacoity. So, for an offence under section 402 mere assembling for any preparation is sufficient, whereas under section 399 for an offence under that section it must be proved that some additional steps were taken in the course of preparation to commit dacoity."
25.Therefore, keeping in view of the above discussed observations I am of the view that prosecution has miserably failed to meet out the ingredients of section 399 IPC and 402 IPC as no specific instance FIR no.119/08 State Vs Ajay @ Sahid & Ors.
19 / of attempting to commit any sort of offence either robbery or otherwise jointly or conjointly has come on record therefore, it raises a strong and sufficient doubt whether accused persons were gathered at the spot for committing any robbery / offence or not.
It has also been observed in the testimony of police officials that public person were present there and on the other hand he stated that no legal action was taken against them who refused to join raiding party due to shortage of time. Therefore, in light of the above discussed observations of Hon'ble Higher Courts, facts and circumstances of the case, I acquit accused persons by giving them benefit of doubt for the offences u/s 399/402 IPC and 25 Arms Act.
Accused persons those who are in JC be released from jail, if not required in any other case. Bail bonds of accused persons those who are on bail, are cancelled and sureties are discharged. File be consigned to record room.
ANNOUNCED IN THE OPEN COURT ON THIS 28.05.2011 (RAJ KAPOOR) ASJ02/West Distt.
Tis Hazari Courts, Delhi FIR no.119/08 State Vs Ajay @ Sahid & Ors.
20 /