Delhi District Court
State vs . Naseem Etc. on 24 March, 2008
S. C. No. 114/02/05 1
IN THE COURT OF SHRI H.S.SHARMA, ADDL.SESSIONS JUDGE, DELHI.
S. C. No. : 114/02/05
FIR No. : 151/01
P.S. : Chandni Mahal
STATE U/S : 307/34 IPC
25/27 Arms Act
Versus
1. Naseem @ Chaand,
S/o Ali Sher Khan,
R/o Village Gadanapur, Gursahaiganj,
District Kannauj, UP.
2. Ajay Pal Yadav,
S/o Kashmir Singh,
R/o Village Gadanapur, Gursahaiganj,
District Kannauj, UP.
Date of Institution : 18.01.2002
Date of receipt of this case in this Court : 18.01.2002
Date of Arguments : 04.03.2008
Date of Decision : 24.03.2008
Shri R.K.Tanwar, Addl.P.P for the state.
Shri N. K. Kapoor, Advocate for both the accused.
JUDGMENT
The prosecution case in brief is that Naseem ul Arfin and his brother Aftab Arfin used to manufacture chappals in their factory located in premises no. 1770, Katra Quashpura, Pataudi House, Darya Ganj. There were 9 or 10 workers including accused Naseem. The occurrence had taken place on 04.08.2001 at about 10.45pm. Accused Naseem had taken advance payment of Rs.5,500/-.
State Vs. Naseem Etc. S. C. No. 114/02/05 2 About 8 or 10 days prior to this incident, he had brought his co-accused Ajay Pal with him. Both of them used to sleep in the factory. On that day, weekly account of the workers was being settled. Naseem was also called in the office. He had agreed to get Rs.200/- deducted per week so as to clear the advance payment. The balance payment was therefore, made to him. After 15 minutes, Naseem and Ajay Opal had stood at the gate of the office. Bnaseem and Ajay Pal were having desi kattas in their hands. Accused Naseem had fired towards Naseem ul Arfin. However he had ducked and the bullet had grazed his shirt and hit the wall. On hearing sound of fire, the other workers had come out. On seeing them accused Naseem and Ajay Pal started fleeing away. They were chased. Constable Rajeev of Police Station Darya Ganj, who was in the Police Booth near the corner of Faiz Bazar saw some persons coming from the side of Pataudi House and one of those persons was having a revolver in his hands. He (Constable Rajeev) tried to apprehend that person Naseem. He (Naseem) had aimed the revolver towards Constable Rajeev and had tried to fire the shot but that had missed. Constable Rajeev grappled with him. His uniform was torn. Persons from the public had also reached there. Constable Birender who was also on patrol duty with Constable Rajeev had seen the accused Naseem firing. Accused Naseem was apprehended.
State Vs. Naseem Etc. S. C. No. 114/02/05 3
2. accused Ajay Pal was chased by the public when he was at the corner of Faiz Bazar picket, he was apprehended by Constable Purshottam. From the possession of accused Ajay Pal one desi katta was recovered. It was found to have an empty cartridge. Three live cartridges were also recovered from the possession of accused Ajay Pal.
3. From the possession of accused Naseem, 2 live cartridges and one empty were also recovered.
4. Accused Ajay Pal was produced by Constable Purshottam before SI Chander Prakash of Police Station Darya Ganj. He had completed the formalities regarding seizure of desi katta and arrest of accused Ajay Pal.
5. Since the accused had fired at Naseem ul Arfin, therefore, on the basis of his statement, FIR bearing no. 151/01 was registered in Police Station Chandni Mahal. It was registered under Sections 307/34 IPC and 25/27 Arms AConstable Since both these accused were found in possession of desi kattas and accused Naseem had fired a shot at Constable Rajeev and accused Ajay Pal had fired some shots towards the persons who were chasing them, therefore, the case bearing FIR No. 430/01 was registered in Police Station Darya Ganj. After completion of State Vs. Naseem Etc. S. C. No. 114/02/05 4 investigation, challans of both the accused were filed. Both these cases were committed to the Court of Sessions and assigned to this Court. The case bearing FIR No. 151/01, Police Station Chandni Mahal bears S. C. No. 114/02/05. The case bearing FIR No. 430/01, Police Station Darya Ganj bears S. C. No. 115/01/05.
6. Now I will take the changes and evidence of this case i.e. S. C. No. 114/02/05.
7. In this case, both the accused have been charged under Section 307/34 IPC for having fired at Naseem ul Arfin. Accused Naseem was also charged under Section 27 Arms Act. Both the accused pleaded not guilty and claimed trial.
8. In order to substantiate the charges, prosecution has examined 15 witnesses in all.
9. Naseem ul Arfin, the complainant has appeared as PW1. He has deposed that on 04.08.2001, he had made a payment of Rs.2,000/- to accused Naseem. He had asked to give him more money as he wanted to go to his native State Vs. Naseem Etc. S. C. No. 114/02/05 5 place. However, he (witness) had refused. Accused Naseem had gone to another room. When he (witness) and his brother were sitting in the room he had noticed some noise. He saw accused Naseem standing outside the room. Accused Ajay Pal was also standing beside him. When he turned back, he saw revolvers in the hands of accused Naseem and Ajay Pal. Accused Naseem aimed and fired a shot towards him (witness). However, he (witness) had had a provincial escape. As a result of the fire, there was a loud noise. Other workers had chased accused Naseem and Ajay Pal. He (witness) had also fallowed them. Accused Naseem had tried to put another bullet in the revolver but he could not do so as the said bullet had fallen on the ground. The labours had then followed the accused persons. Ajay Pal or Naseem had fired towards the labour who were chasing the accused. When the labours were chasing the accused, those police personnels who were present near the police booth of Darya Ganj bridge had also started chasing them (accused). Naseem had also fired at those police officials to avoid his apprehension. However, Naseem was overpowered by the police officials. Ajay Pal had run towards Jama Masjid side. The witness further deposed that his statement Ex.PW1/A was recorded. The bullet had been lifted from his office. An empty was also lifted from the place where the accused was trying to put the cartridge in the revolver. One live cartridge, one empty shell and one lead of the bullet were seized vide memo Ex.PW1/B. His kurta which was having a State Vs. Naseem Etc. S. C. No. 114/02/05 6 corresponding bullet mark, was also taken into possession vide memo Ex.PW1/D. The kurta is Ex.P-4. The empty shell is Ex.P-1. The bullet lead is Ex.P-2. The live cartridge is Ex.P-3. The witness had been cross examined at length without any success. It was suggested to him that the accused has been falsely implicated to avoid outstanding payment. It was also suggested to him that the accused Naseem had lodged a complaint in 2000 that his wages were due.
10. In the cross examination the witness admitted that he had not chased the accused. His brother Aftab had run after the accused.
11. Constable Gobind Ram (PW2) had taken the photographs Ex.PW2/1 to Ex.Pw2/5.
12. Aftab Arfin (PW3) is the real brother of the complainant. Besides the other facts as deposed by Naseen ul Arfin (PW1), this witness has deposed that he had seen the accused firing at his brother from a distance of 8 feet. The bullet had touched the shirt of his brother and had hit the wall. In the cross examination, the witness has deposed that he had chased the accused upto the electric poll. His brother had chased him upto the place where he was overpowered.
State Vs. Naseem Etc. S. C. No. 114/02/05 7
13. Constable Birender Singh (PW4) has deposed that he alongwith Constable Rajeev were sitting near the police booth. At about 11.00pm they had seen persons running after the accused. They were also saying "Pakdo-Pakdo". The accused had fired towards public persons. Constable Rajeev tried to apprehend one of the accused and that person had fired at Constable Rajeev. However that fired had missed. Constable Rajeev had then apprehended the accused Naseem. He (witness) had helped Constable Rajeev in apprehending accused Naseem. The other accused had been apprehended by Constable Purshottam. One katta was recovered from the accused Naseem. One cartridge was found in the katta. The katta was handed over to SI Chandra Prakash. It was taken into possession vide memo Ex.PW1/C. Its sketch Ex.PW1/D was prepared. From the search of accused Ajay one katta was recovered. No question, in the cross examination was put to the witness by the accused.
14. HC Daya Nand (PW5) has deposed that on receipt of rukka, he had registered the FIR no. 151/01, carbon copy of which is Ex.PW5/A.
15. Jamil (PW6) has deposed that he was working in the Chappal Factory of Naseem Ul Arfin (PW1). On that day accused Naseem had demanded an State Vs. Naseem Etc. S. C. No. 114/02/05 8 amount of Rs.2,000/- from the owner. An amount of Rs.5,500/- was already outstanding. The owner had refused to pay. Naseem had gone to the other room. After about 10 or 15 minutes accused Naseem and Ajay came to the room of the owner. Accused Naseem fired at the owner. The bullet had grazed (passed) the owner and hit the wall. The room of the owner was on the first floor. He (witness) and other workers were standing on the ground floor. The owner had raised an alarm. Both the accused ran outside. They (witness) ran after them. Accused Ajay Pal fired at another worker Zakaria. He had ducked and escaped the bullet. In the cross examination, he deposed that he had not seen accused Naseem firing at the owner. He had heard the sound of bullet at 10.30pm. They had not gone upstairs. He had not seen the accused running down the stairs. Both the accused were arrested near the police chowki. No proceedings was conducted in his presence.
16. Zakaria (PW7) has stated that he was working in the Chappal Factory of Naseem Ul Arfin. On 04.08.2001 it was Saturday. The accounts of the workers used to be settled on Saturday. At about 10.35pm he had heard the sound of bullet. He went upstairs. Naseem Ul Arfin told him that Naseem had run away after firing the bullet. He ran after the accused. He found them on the road. They had run towards Daryaganj. Another worker Jamil had chased them. Accused State Vs. Naseem Etc. S. C. No. 114/02/05 9 Naseem was having a katta in his hand. He was overpowered by the police. He had grappled with the police. Ajay Pal had run towards West. Near the Masjid Ajay Pal had fired towards them. He was also overpowered by the police officials. The police officials had recovered desi katta and three catridges from Ajay Pal. These were taken into possession vide memo Ex.PW1/C. In the cross examination it was deposed by him that when he had heard the sound of bullet, he and Jamil were on the ground floor. He had run upto the police post Daryaganj.
17. Constable Prakash had taken two parcels duly sealed with the seal of CP from MHC(M) and deposited the same in the Office of FSL, Malviya Nagar. He had also taken four parcels sealed with the seal of BSB from the MHC(M) and had deposited the same with FSL, Malviya Nagar.
18. HC Kapoor Singh (PW9) had joined the investigation. In his presence both these accused who had already been arrested in case bearing FIR no.430/01 of Police Station Daryaganj, were formally arrested in the present case. Their arrest memos are Ex.PW9/A and Ex.PW9/B.
19. SI Balwan Singh (PW10) had investigated the case. He has deposed that on 04/08/01 he was on patrol duty. Naseem Ul Arfin had met him as he State Vs. Naseem Etc. S. C. No. 114/02/05 10 (witness) and other police officials had reached the Chappal Factory of Naseem Ul Arfin. His statement Ex.PW1/A was recorded. The FIR was got registered. He prepared rough site plan Ex.PW10/B. A bullet lead, an empty cartridge case and a live cartridge were recovered. The articles were seized vide memo Ex.PW1/B. Sketch Ex.PW1/C was prepared. The kurta of Naseem Ul Arfin was taken into possession. The place of occurrence was got photographed. After about 30 minutes he had received the information that the two culprits have been arrested by the police of Police Station Daryaganj. Therefore, he and other police officials went there. The accused were formally arrested in this case. After completion of investigation the accused were challaned.
20. HC Yogesh Kumar (PW11) had joined the investigation with SI Balwan Singh (PW10).
21. HC Desraj (PW12) was the MHC(M) of Police Station Chandni Mahal on the relevant dates. He had received the sealed pullandas and had sent them to FSL through Constable Prakash Chand.
22. Constable Rajeev (PW13) has deposed that on 04/08/01 he was present at the corner of Faiz Bazar. At about 11.30pm he had seen both the State Vs. Naseem Etc. S. C. No. 114/02/05 11 accused coming from the side of Chandni Mahal. They were running. Accused Naseem was having a country made in his right hand. They were being chased by 10/12 persons. At that time accused Ajay Pal had fired a shot towards the public, i.e. the persons who were chasing him. He (witness) had chased Naseem and caught hold of him. He had pointed out the pistol towards him (witness) and pressed the trigger. However, it did not fire. He had snatched the pistol. Its barrel was found to contain a live cartridge with the sign of fire pin. The accused Naseem had grappled with him and pulled his collar as a result of which the buttons of his shirt were broken. However the accused was apprehended. In the meantime, Constable Purshottam who was also on a picket duty, had apprehended accused Ajay Pal with his pistol. He (witness) had handed over his uniform shirt which was seized by the IO.
23. Constable Purshottam (PW14) has deposed that he had seen both the accused coming from the side of Pataudi Road. Both of them were having "kattas". They were being chased by the persons from public. Near his picket Constable Rajiv was present. He had tried to stop accused Naseem. He (witness) had tried to intervene accused Ajay Pal but he had fired a shot towards the crowd. It did not hit anyone. He had apprehended Ajay Pal with the katta. In its barrel an empty case had been found. In the meantime, SI Chandra Prakash had come there State Vs. Naseem Etc. S. C. No. 114/02/05 12 and the accused was handed over to him.
24. SI Chandra Prakash is the investigating officer of the case FIR No.430/01.
25. After closure of evidence of prosecution, the accused were examined under Section 313 CrPC. They denied the prosecution evidence. They had put forth the following plea:-
Plea of accused Naseem:-
"I am innocent. I had been working for the last five years in the factory of Mohammad Arfin. From out of the contracted amount, lessor amount had been paid to me. I used to work on contract basis. The payment used to be dependent on the work done by me. I was not getting a fixed amount as salary. Since, the payment had not been made regularly, therefore, an amount of Rs.17,000/- had become outstanding towards the employer. Whenever I used to demand the amount, I used to be told that the same shall be paid in the next month. On one day, I had been given merciless beatings by Naseem and Aftab, the employers. I went to SI Balwan of Police Station Chandni Mahal to lodge the report. On the next day, SI Balwan had gone to apprehend my employers. However, he did not do anything. Rather, I was implicated in the false cases. Nothing was recovered from me. The allegations against me and my co- accused are false. My employers were having good relations with the State Vs. Naseem Etc. S. C. No. 114/02/05 13 police officials of Police Stations Chandni Mahal and Darya Ganj. I can get these facts proved from the workers who had been working at that time. The two witnesses Zakaria and Jameel were the employees of Mohd. Arfin. They had been working there since long."
Plea of accused Ajay Pal:-
"I am innocent. I have been falsely implicated as I and my co- accused Naseem @ Chaand hail from the same village. I used to work with him. Nothing was recovered from my possession. I was arrested from the factory. The falsity of the prosecution version can be judged from the single fact that inspite of repeated alleged firings, not even a single person was injured with the shot. Further, if any amount had been paid to my co-accused, where that amount had gone and was not recovered at the time of alleged apprehension. It is a fabricated case."
26. In support of their defence, they have produced Shri Ikhtyar (DW1). He has deposed that no quarrel had taken place on 04/05.08.2001. The owner had left the factory at about 4.00 or 5.00pm. The accused had told him that they had lodged the report against the owner of the factory.
27. I have heard ld. Addl.P.P for the State, Ld. Counsel for the accused. I have gone through the file and the judgments relied on by Ld. Counsel for the accused.
State Vs. Naseem Etc. S. C. No. 114/02/05 14
28. Ld. Counsel for the accused has relied on Dharam Pal Vs State 1993 Crl. Law Journal 2856 and Dharam Singh Vs State 1993 SC 319.
29. So far as the judgments relied on by the Ld. Counsel for the accused are concerned, they are distinguishable on facts and are not applicable to the facts of this case. In Dharam Singh's case the presence of the accused at the place of occurrence was held to be doubtful. However, in our case the accused Naseem has not disputed his being an employee of Naseem Ul Arfin. In Dharam Pal's case the details of the injuries were not decipherable from the judgment.
30. In order to find out as to which witness is material in the present case, we will have to look into the charges. The accused have been charged under Section 307/34 IPC for their having fired at Naseem Ul Arfin. Accused Naseem has also been charged under Section 27 Arms Act. Therefore, the evidence of Naseem Ul Arfin (PW1), so far as the firing by the accused is concerned, is very material.
31. The accused and their Counsel have submitted that no such occurrence had ever taken place. The complainant was to pay some amount to State Vs. Naseem Etc. S. C. No. 114/02/05 15 the accused and in order to avoid the payment, he in collusion with the local police, got the accused falsely implicated in this case.
32. Now, motive is a double edged weapon. It is to be seen from the evidence as to in which particular direction it works best. The case of Naseem Ul Arfin is that accused Naseem had already been paid an advance of Rs.5,500/-. It was to be adjusted subsequently. The accused had demanded more money. He (Naseem Ul Arfin, PW1) had refused to pay, therefore, the accused had fired at him. The plea of accused Naseem is that more amount was payable. His dues were not paid. It was suggested to Naseem Ul Arfin (PW1) that in 2000 a report had been lodged by accused Naseem in Police Station Chandni Mahal as his wages were due. However, no such complaint has been proved. Ikhtyar (DW1) in his cross examination has admitted that after 05.08.2001 he had not made any complaint to any authority intimating the authority that the accused has been falsely implicated. In his chief he has stated that no quarrel had taken place between the accused and other persons. However, the accused were having some disputes over the payment. In my view the non-payment of the dues, as claimed by the accused, had given a very strong motive to accused Naseem to take the law in his own hands. There was no motive (in the absence of any documentary evidence) for Naseem Ul Arfin to falsely implicate the accused.
State Vs. Naseem Etc. S. C. No. 114/02/05 16
33. The fact that an occurrence had taken place finds necessary corroboration from the statements of Aftab Ul Arfin (PW3), Jamil (PW6), Zakaria (PW7) and Constable Gobind (PW2). The Kurta (Ex.P-4) of Naseem Ul Arfin had been sent to FSL and as per the report Ex.PW10/C characteristic GSR (gunshot residence) particles were detected around the hole H-1. It was also opined that the hole H-1 may have been caused by a bullet discharged through a fire arm.
34. Naseem Ul Arfin (PW1) has stated that accused Naseem had fired a shot aiming towards him but he had a provincial escape. Accused Naseem had tried to put another bullet into the revolver but the same could not be put in the revolver. Ajay Pal or Naseem had fired towards the labour who were chasing both the accused persons. In the cross examination he has stated that he had not chased the accused when Naseem had fired at him. Ajay Pal had fired at the workers near Janta Cooperative Bank while he was being chased by the workers. Except bald suggestions no material has been brought on record to discard the testimony of Naseem Ul Arfin (PW1) and Aftab Ul Arfin (PW3). Although Jamil (PW6) and Zakaria (PW7) have stated that they were on the ground floor when the firing had taken place but their statements to the extent that there had been firing at that time, corroborates the statements of Naseem Ul Arfin (PW1).
State Vs. Naseem Etc. S. C. No. 114/02/05 17 Zakaria (PW7) has stated that accused Ajay had fired at them near Pataudi House but there is no such charge against accused Ajay Pal.
35. Thus, the prosecution has been able to establish that there was motive for accused Naseem to commit the crime. The evidence of the prosecution witnesses is consistent and reliable. Accordingly, I convict accused Naseem under Section 307 IPC and 27 Arms Act. So far as accused Ajay Pal is concerned, in this case, he is acquitted. Accused Naseem be taken into custody.
Announced in the open court (H.S.SHARMA)
On this day of 24th March, 2008 ASJ/DELHI
All pages signed
State Vs. Naseem Etc.