Delhi District Court
State vs Salim @ Akram @ Santosh on 28 July, 2012
IN THE COURT OF SH. RAVINDER DUDEJA: ADDITIONAL SESSIONS JUDGE; (EAST) FTC : E COURT: KARKARDOOMA COURT: DELHI. SESSIONS CASE No. 127/10 FIR No. 119/10 U/S: 394/397/307/411/333/34 IPC & 25/27/54/59 Arms Act. P.S: Geeta Colony. State Versus Salim @ Akram @ Santosh S/o Mohd. Aslam, R/o Village Saithal, PS Hafeez Ganj, Distt. Bareily (U.P.) State Versus Date of Institution : 08.09.2010 Date of Arguments : 24.07.2012 Date of Judgment : 28.07.2012 JUDGMENT
1. Prosecution case is that on 02.05.2010 at about 5.50 pm, an information was received at PS Geeta Colony regarding firing of bullet on a person in civil dress on a police motorcycle. The information was recorded vide DD No. 27-A which was sent to SI Saket through Constable Jitender. SI Saket along with Constable Jitender reached at the spot 9/45 near park opposite Valmiki College, Shamshan Ghat, Jheel Road where he found HC FIR No. 119/10 1 of page 16 Azadveer in an injured condition. Constable Ramesh, Constable Pramod and complainant Saurabh Aggarwal were also present there. Constable Ramesh handed over a pistol to SI Saket and Constable Pramod handed over a ladies purse of red colour containing Rs. 2500/- cash, a mobile phone make Nokia Express Music with two SIMs of Airtel and Rs. 4725/- and also produced accused Salim who was beaten up by the public. HC Azadveer was sent to SDN Hospital in a TSR with Constable Vijay Bahadur. In the meanwhile, a PCR van also came at the spot and accused Salim was sent to SDN Hospital in the PCR van with Constable Vinod. Statement of Saurabh Aggarwal was recorded wherein he stated that on 02.05.2010, he had gone to Shahdara with his friend Vidhi Verma on motorcycle No. DL13-SD-1688. After shopping, he was going towards Karol Bagh to drop his friend at her house. He took petrol from a petrol pump near Shastri Park crossing. At about 5.00 pm, a motorcycle of black colour on which two persons were sitting came and the pillion rider snatched a red colour purse containing Rs. 2500/- from Vidhi Verma and then tried to sped away the motorcycle. He chased them. The pillion rider showed him a pistol asking him to return back but he continued chasing them. The pillion rider fired from his pistol but despite this, he chased them up till red light near Shiv Murti, Shamshan Ghat. On reaching there, the motorcyclists stopped the motorcycle and both the riders changed their position. The person who was driving the motorcycle, came at the pillion seat while the pillion rider took the driver seat and drove towards the side of Geeta Colony. On reaching 9 Block Geeta Colony, they stopped their motorcycle bearing No. DL5S-Z-6720 Pulsar black colour and proceeded towards him with pistol in their hands. On seeing this, he became perplexed and started running away. He saw a police motorcycle of yellow FIR No. 119/10 2 of page 16 colour bearing No. DL1S-N-8769 which was being driven by Azadveer in civil dress. He complained him and sought his help. Constable Azadveer turned his motorcycle towards the gali to apprehend the assailants. Both the assailants then tried to run away. When Azadveer reached closed to them, accused Salim @ Akram fired many bullets on him due to which Azadveer became injured and fell down. In the meanwhile, Constable Ramesh and Pramod reached there and with the help of public, they overpowered accused Salim @ Akram but his associate managed to flee away. On the search of accused, a red colour purse and a pistol were recovered. FIR was registered under Section 394/397/307/34 IPC and under Section 27/54/59 Arms Act. Exhibits were lifted from the spot. Motorcycles of Azadveer and accused were seized. Accused Salim @ Akram was arrested. He gave disclosure statement. During investigation, it was found that the number of the motorcycle recovered from accused was fake and its actual number was DL7S-AB-7935 which was stolen from the area of PS Bhajan Pura and regarding which, an FIR bearing No. 214/10 was registered at PS Bhajan Pura. The associate of accused could not be arrested. Exhibits were sent to FSL. Doctor gave the opinion that injuries were grievous and were caused by gunshot. Pending the receipt of FSL result, charge sheet was prepared under Section 394/397/307/411/333/34 IPC and under Section 25/27/54/59 Arms Act.
2. After compliance of Section 207 Cr. PC, the case was committed to Sessions Court. Charge under Section 392 read with Section 397/34 IPC and under Section 307 IPC was framed against the accused. On receipt of FSL result and sanction under Section 39 Arms Act, separate charge under Section 25/27 Arms Act was also framed against him. He FIR No. 119/10 3 of page 16 pleaded not guilty.
3. In order to prove its case, prosecution examined 20 witnesses. PW-1 is Dr. Ratnakar Ahuja from SDN Hospital. He had examined the injured HC Azadveer and prepared MLC Exbt. PW-1/A. PW-2 is Inspector Rajesh Singh, Incharge, Mobile Crime Team. He had inspected the spot i.e. I Block, Gali No. 9, Geeta Colony, near Ram Dass Park and found three empty shells and a deformed fired bullet lying at the corner of gali No. 9.
PW-3 is Saurabh Aggarwal. He is the complainant. He deposed about the averments made in his complaint and proved the same as Exbt. PW-3/A. PW-4 is Smt. Shashi Arora. She deposed that on 05.05.2010 at about 4.00 - 5.00 pm, she was taking tea while sitting on the chhaja at second floor of her house. On hearing the noise of quarrel from the street, she saw that a boy and a girl were being chased by two boys on a black colour motorcycle with cloth tied on their face. At some distance, they stopped their motorcycle and started running in opposite direction. She also saw a yellow colour motorcycle behind those boys. One of those two boys opened fire on the police official who was on yellow colour motorcycle and he fell down on the ground. Boys took the purse of the policeman and snatched his mobile and fired two more bullets on his legs. In the meanwhile, other police officials reached there. Both the boys then ran towards M.C.D. school. They were chased by the police, one of them FIR No. 119/10 4 of page 16 was apprehended as he had fallen on the road. She could not identify the accused. PW-4 was declared hostile and was cross examined by the learned APP. In the said cross examination, she admitted that the name of the assailant who was apprehended at the spot was revealed as Salim and the name of the police official on whom accused had fired the shot was Azadveer.
PW-5 is HC Azadveer. He deposed that on 02.05.2010 at about 5.25 pm, he was going to his house on his official motorcycle via Pushta road. While he was crossing cremation ground opposite Geeta Colony, a boy whose name was subsequently revealed as Saurabh, came in front of his motorcycle and shouted for help. He stopped his motorcycle. Saurabh told him that two boys had snatched a purse from a girl accompanying him and that one of them was carrying a weapon. Saurabh further told him that he had chased those boys and those boys had gone to street adjoining to F Block, Geeta Colony. On turning back, he saw that those two boys on a motorcycle were carrying weapon in their hand. He turned his motorcycle towards them to apprehend them but they started running on seeing him. One of those boys was carrying a weapon in his hand. When he tried to snatch the weapon from the hand of that boy, the second boy who was going ahead came back and fired a shot on his left leg. Even after that, he kept holding the other boy, the other boy then fired three more shots at him. Two shots hit his left leg and one shot hit his right leg. He fell down on the road. Saurabh raised alarm. Both the boys then started running from there. They were chased by two Beat Constables of the area namely Constable Pramod and Constable Ramesh. Accused Salim @ Akram @ Santosh was apprehended while the second boy managed to flee away. He further FIR No. 119/10 5 of page 16 deposed that local police came at the spot and rushed him to SDN Hospital, Shahdara in a TSR along with Constable Vijay Bahadur. He was given first aid and thereafter his family shifted him to Max Balaji Hospital. His clothes i.e. pant was seized by the doctor in SDN Hospital.
PW-6 is Constable Vijay Bahadur. He had taken HC Azadveer to SDN Hospital in a TSR for medical examination. After medical examination, the doctor handed over the pullanda of pant of HC Azadveer with sample seal which was seized by the IO vide memo Exbt. PW-6/A. PW-7 is SI Pradeep. He was on picket duty at Shamshan Ghat, Geeta Colony. On receipt of information regarding the incident of firing on his wireless set, he also reached at the spot and found that accused Salim @ Akram was lying on the road in an injured condition, SHO, PCR van and public persons were already standing there. He and Constable Vinod took the accused in PCR van to SDN Hospital.
PW-8 is Constable Satender, Photographer from Mobile Crime Team. He took 20 photographs of the scene of crime which are Exbt. PW- 8/A-1 to Exbt. PW-8/A-20.
PW-9 is ASI Ami Chand Tomar. He took two sealed pullandas from hospital and deposited them in Malkhana.
PW-10 is Ms. Vidhi Verma. She is the friend of the complainant Saurabh Aggarwal. She deposed that on 02.05.2010 at about 5.00 pm, she was going with Saurabh on his bike and was on the pillion seat. From FIR No. 119/10 6 of page 16 Shahdara, they were going to ISBT, Kashmere Gate. Near Shastri Nagar, two persons riding on a motorcycle came near their motorcycle, snatched her red colour ladies purse from her hand and sped away. They chased them. At Geeta Colony, the boys stopped their motorcycle and opened fire at them. They stopped their motorcycle and tried to run away from there. A police official in civil dress on a yellow colour motorcycle reached there. They complained him. The police official went towards those boys but they fired at him due to which he sustained bullet injuries and fell down on the road. Two police officials reached there in uniform and they took the injured in an auto. She further deposed that one out of those two boys was able to run away while the other was apprehended by the injured police official with the help of public. He identified the accused as the same boy who had snatched her purse and had opened fire on them. She stated that she was carrying some documents and Rs. 2500/- in her purse.
PW-11 is Constable Vinod. He had accompanied the PCR to SDN Hospital for the medical examination of accused Salim.
PW-12 is HC Ramesh Chand. He deposed that on 02.05.2010 at about 5.30 pm, he and Constable Pramod were patrolling the area of 9 Block, Geeta Colony being Beat officials. They were on foot. They heard the noise of fire shots. Some public persons told them that a police official had been fired at in the adjoining street. They immediately rushed to the spot and saw accused running while holding a pistol in his hand. They chased him. After chasing him for about half a kilometer, accused was apprehended. Accused was not in his full senses. He was given beatings by the public. A pistol and a ladies purse was recovered from his FIR No. 119/10 7 of page 16 possession. From his mobile phone, he made a call to SHO. SHO, PSI Pradeep Kumar and other police officials reached at the spot. Accused was sent to SDN Hospital in the PCR. He further stated that on reaching the spot, he had also seen HC Azadveer lying on the road. Four empty shells were recovered from the spot. Crime team took the photographs of the spot. He handed over the pistol and ladies purse recovered from accused to SI Saket who had also reached at the spot. He further stated that pistol was kept in a cloth pullanda and sealed with the seal of SAK and seized vide memo Exbt. PW-3/PX2. The empty shells were also kept in a pullanda which was sealed with the seal of SAK and seized vide memo Exbt. PW- 3/PX4. The motorcycle of Saurabh Aggarwal, a black colour Pulsar motorcycle of accused and the yellow colour government motorcycle of HC Azadveer were also seized vide separate memos. Saurabh Aggarwal and his friend Vidhi Verma also came at the spot. The purse and the currency notes of Rs. 2500/- were put in separate pullandas and were sealed with the seal of SAK. Blood samples, earth control and blood earth were also lifted and separate pullandas were prepared and seized. IO then prepared the Rukka on the statement of Saurabh Aggarwal and sent the same at police station through Constable Jitender. After registration of the FIR, Constable Jitender came back at the spot and handed over the original Rukka and copy of FIR to SI Saket. HC Azadveer was sent to SDN Hospital in a TSR with Constable Vijay Bahadur. Accused Salim was arrested at SDN Hospital. His disclosure statement Exbt. PW-12/C was recorded. PW-12 was declared hostile and was cross examined by the learned APP. In the said cross examination, he admitted that on the search of accused, a mobile phone make Nokia Express Music with two SIM cards of Airtel and Rs. 4725/- were recovered from the right pocket of his pant.
FIR No. 119/10 8 of page 16 PW-13 is SI Ashiq Ali Kirmani. He was on PCR duty. He had taken the accused to SDN Hospital in the PCR van.
PW-14 is Dr. Gaurav Govil from Max Balaji Hospital. He had examined Azadveer Singh. He proved the treatment record of Azadveer Singh as Exbt. PW-14/A. PW-15 is Constable Jitender. He had taken the Rukka to the police station for the registration of the FIR.
PW-16 is Constable Pramod Kumar. He was on patrolling duty with PW-12 HC Ramesh Chand and had apprehended the accused and recovered pistol, purse and mobile phone from him.
PW-17 is Inspector Saket Kumar. He is the IO of this case. On receipt of DD No. 27-A Exbt. PW-17/A, he along with Constable Vinod reached at 9/36 near Valmiki College, Geeta Colony where he found HC Azadveer and accused Salim in an injured condition. He sent HC Azadveer to SDN Hospital in an auto with Constable Vijay Bahadur while accused Salim was sent to SDN Hospital in a PCR with PSI Pradeep Kumar and Constable Vinod. Constable Ramesh produced a pistol recovered from accused Salim. Public witnesses Monu Osten, Shashi Arora and Saurabh Aggarwal were also present at the spot. Constable Pramod handed over a red colour purse containing Rs. 2500/- and also produced Express Music Nokia mobile phone, two SIM cards and Rs. 4725/- cash. The motorcycles of accused, HC Azadveer and Saurabh Aggarwal were seized. It was found FIR No. 119/10 9 of page 16 that the black colour Bajaj Pulsar motorcycle of accused Salim was having fake number plate and was stolen from PS Bhajan Pura. Three empty cartridges and the damaged cartridge were lifted from the spot. Their sketches were prepared and were then seized vide memo Exbt. PW-3/PX4. The pistol was kept in a sealed pullanda and seized vide memo Exbt. PW- 3/PX2. The blood sample and earth control were lifted and seized from the spot. The purse containing Rs. 2500/-, mobile phone with two SIM cards and the cash amount of Rs. 4725/- were kept in separate pullanda. All the pullandas were sealed and seized vide separate memos. Statement of accused was recorded and Rukka Exbt. PW-17/B was prepared and sent to police station through Constable Jitender for the registration of the FIR. Accused was arrested from SDN Hospital. The MLCs of Azadveer and accused were collected. Exhibits were deposited in the Malkhana. Later on, pullandas were sent to FSL. Sanction under Section 39 Arms Act was obtained after collecting FSL result Exbt. PX1 to Exbt. PX3.
PW-18 is Asif Mohd. Ali, Additional DCP, East. He had accorded the sanction under Section 39 Arms Act which is Exbt. PW-18/A. PW-19 is HC Dig Vijay Singh, Duty Officer. He had recorded the FIR Exbt. PW-19/A. PW-20 is HC Har Prasad, the then MHCM. He proved the relevant entries of Register No. 19.
4. Statement of accused was recorded under Section 313 Cr. PC wherein he stated that he is innocent and has been falsely implicated. He FIR No. 119/10 10 of page 16 refused to lead defence evidence.
5. Arguments have been heard from Mohd. Iqrar, learned APP and from Mohd. Hassan, learned Amicus Curiae for the accused. The learned Amicus Curiae has argued that the story given by the complainant is unbelievable. It is submitted that it is improbable that complainant kept chasing the accused on the motorcycle in a crowded area for such long without the same having got noticed by the PCR/police officials who are stationed at the red lights/crossings and he made no phone call to the police while chasing the accused and also did not note down the number of motorcycle of the accused during all this while. It is further submitted that complainant Saurabh Aggarwal did not identify the accused in court. PW-4 Smt. Shashi Arora, who is an independent witness of the occurrence, has also not identified the accused. The second eye witness namely Monu Osten is not produced. It is further argued that there are several contradictions in the testimonies of complainant, injured and the other eye witnesses and therefore it shall be highly unsafe to convict the accused on the basis of contradictory testimonies of the witnesses. The learned APP however has argued that all the witnesses except complainant and Shashi Arora have identified the accused. He was apprehended from the spot itself by PW-12, HC Ramesh Chand and PW-16 Constable Pramod Kumar. The robbed property was recovered from his possession and therefore identity of accused is proved beyond doubt. It is also submitted that the contradictions are minor in nature and do not in any manner impeach the credibility of testimonies of the witnesses.
6. I have considered the submissions made before the court and FIR No. 119/10 11 of page 16 have given my thoughtful consideration. PW-3 Saurabh Aggarwal is the complainant. He deposed that on 02.05.2010, he had gone with Vidhi Verma to Shahdara for shopping on his motorcycle No. DL3S-1688. After shopping while he was going to Karol Bagh to drop her at her residence and after taking petrol from Shastri Park petrol pump when he had just crossed the petrol pump, a black colour Pulsar motorcycle came on his left side with two persons on it wearing helmets. The pillion rider on the Pulsar motorcycle showed a pistol to him and snatched the wallet containing Rs. 2500/- from the hand of Vidhi Verma. He chased those boys on his motorcycle. On reaching cremation ground Geeta Colony, the pillion rider started driving the motorcycle while the motorcycle driver came on the pillion seat. They entered into Geeta Colony from the third cut and took a left turn and then immediately stopped their motorcycle and parked the same. One of them stood near the motorcycle and the other holding a gun rushed towards them. Complainant stopped his motorcycle and started running on the road. By chance, a yellow colour motorcycle with a policeman on it in civil dress crossed from there. He stopped him and told him all the facts. On seeing the policeman that man who was chasing the complainant, took turn towards his bike and started walking towards him. The moment the police official on yellow motorcycle reached near that man, he started firing on that policeman due to which he received 3-4 shots and fell down on the road. Thereafter, both the men ran away from the spot. PW-3 failed to identify the accused stating that he was not sure about the identity of the accused as he could not see his face properly. Barring the identification part, the testimony of PW-3 finds corroboration from the testimony of PW-10 Vidhi Verma who was the pillion rider on the motorcycle of PW-3. She has also deposed more or less similarly and was FIR No. 119/10 12 of page 16 able to identify the accused. The evidence of identification given by PW-10 is corroborated by the testimony of PW-5 HC Azadveer who has also identified the accused as the same person who was chasing the complainant. He identified the accused as the same person who had fired four shots at him. Even PW-4 Shashi Arora who is otherwise hostile on the point of identity admits that the name of assailant who was apprehended at the spot was revealed as Salim. The presence of accused and his arrest from the spot is proved by PW-12 HC Ramesh Chand and PW-16 Constable Pramod Kumar who have deposed that they had heard the noise of fire shots and were informed by public persons that a police official had been fired in the adjoining street and they saw the accused running from there holding a pistol in his hand. They chased and apprehended the accused and recovered the pistol and ladies purse from his possession. PW-12 stated that public gave beatings to the accused. There is no cross examination of the witnesses on this point. The presence of HC Azadveer at the spot cannot be disputed, he himself being the injured witness. His testimony is of utmost value and has a great probative value. It is not the defence of the accused that injuries on the person of H.C. Azadveer were self inflicted but he took the plea that because of previous enmity of HC Azadveer, someone else had fired at him. It is very difficult to accept that the injured would allow the actual culprit with whom he had previous enmity go scot free and would falsely implicate the accused with whom he had no enmity. The defence of the accused is therefore not acceptable. The purse recovered from the possession of the accused has been identified by PW- 10 Vidhi Verma to be her own purse.
7. The FSL result Exbt. PX-2 confirms that the pistol recovered FIR No. 119/10 13 of page 16 from the accused is a fire arm. The FSL result also confirms that cartridges recovered from the spot were fired from the same pistol which was recovered from the accused. The MLC of HC Azadveer proves penetrating wounds on his person which were grievous in nature. The injured was diagnosed with bullet injury on left leg bilateral and glutei region and left lower limb nerve injury. Thus, the medical evidence also supports the story narrated by the witnesses and it cannot be held that the testimonies of witnesses are not believable.
8. The learned Amicus Curiae has argued that there are several contradictions in the testimonies of the witnesses. It is stated that PW-3 Saurabh Aggarwal deposed that the pillion rider showed him a pistol but PW-10 does not depose that the motorcyclist had shown them the pistol. Rather, she states that at Geeta Colony, the boys had stooped their motorcycle and opened fire at them. PW-3 stated that he put HC Azadveer in an auto and asked the auto driver to take him to police station but HC Azadveer states that he had gone to SDN Hospital, Shahdara in a TSR along with Constable Vijay Bahadur after the arrival of the police. PW-3 deposed that the purse of Vidhi Verma was recovered from the dub of the accused but PW-16 stated that the red colour ladies purse was recovered from the hand of the accused. PW-12 deposed that he and Constable Pramod did not go to Azadveer and chased the accused first but Constable Pramod stated that first they went to Azadveer who had received bullet injuries. It is thus submitted that these contradictions dent the credibility of the testimonies of the witnesses.
9. There are as many as six witnesses of the occurrence. The eye FIR No. 119/10 14 of page 16 witness evidence is to be tested for its inherent consistency and inherent probability of prosecution story. Unless the discrepancies and contradictions are so material and substantial and that too in respect of vitally relevant aspects of the facts deposed, the witnesses cannot be straight away condemned and their evidence cannot be discarded in its entirety. The power of observation and recollection of each person is always different. The contradictions pointed out by the defence are those which are due to normal errors of observation, normal errors of memory due to lapse of time and due to mental disposition such as shock and horror at the time of occurrence and those are always there however honest and truthful a witness may be. The aforesaid contradictions do not shake the basic version of the prosecution case as the witnesses by and large supported the prosecution story.
10. It has thus been proved from the evidence on record that accused had used the pistol in the commission of robbery which is a dangerous weapon. Not only the robbed purse but pistol was also recovered from his possession. It is also proved that he had fired at HC Azadveer and caused him injuries. The intention to commit the murder of HC Azadveer is proved by the fact that he had fired four bullets on him. It is also proved that he was apprehended at the spot itself and the pistol was recovered from his possession. Additional DCP, East has granted the requisite sanction under Section 39 Arms Act.
11. Hence, in view of the totality of facts and circumstances, I am of the view that prosecution has been able to prove its case against the accused beyond doubt. I, therefore, hold the accused guilty. He is FIR No. 119/10 15 of page 16 accordingly convicted under Section 392/34 read with Section 397, 307 and 25 & 27 Arms Act.
(RAVINDER DUDEJA) ADDL. SESSIONS JUDGE:FTC/E-COURT/KKD/DELHI.
ANNOUNCED IN THE OPEN COURT ON 28.07.2012.
FIR No. 119/10 16 of page 16