Delhi District Court
Karkardooma Courts / Delhi vs Unknown on 9 March, 2015
FIR No.368/07 PS : Seelampur
IN THE COURT OF SH. PULASTYA PRAMACHALA
ADDITIONAL SESSIONS JUDGE
SHAHDARA DISTRICT, KARKARDOOMA COURTS, DELHI.
FIR No. : 368/07
Under Section : 186/353/307/394/397/411/34 IPC &
27 Arms Act
Police Station : Seelampur
Sessions Case No : 6/14
Unique I.D. No. : 02402R0675712007
In the matter of :-
STATE
VERSUS
1. Shamshad Ahmad
S/o. Sh. Diljan Ahmad,
R/o. Mohalla Jagat,
Radhu Cinema Road,
Sambhal, Muradabad, U.P.
2. Rahis Ahmad @ Arsh
S/o. Sh. Rizwan Ahmad,
R/o. H.No.99, Mohalla Sher Mohd.,
Nursery Bagh, Pilibhit, U.P.
3. Asif Ali Khan @ Sophiyan Ali
S/o. Sh. Umar Ali Khan,
R/o. VPO Pakwada,
Near Ziyarat Wali Masjid,
Kailsha Road, Muradabad, U.P.
............Accused persons.
Date of Institution : 08.10.2007
Date of Committal : 11.10.2007
Date of receiving in this Court : 15.01.2014
Date of reserving judgment : 19.02.2015
Date of pronouncement : 09.03.2015
Decision :All three accused are convicted under
Section 394 IPC r/w Section 397 & 34 IPC.
(Pulastya Pramachala)
Page no. 1 of 30 ASJ (Shahdara)
Karkardooma Courts / Delhi
FIR No.368/07 PS : Seelampur
All three accused persons are acquitted of
the charges under Section 186 and 353 IPC
r/w Section 34 IPC.
Accused Shamshad is convicted under
Section 307 IPC and 27 Arms Act.
Accused Rahis Ahmad is acquitted for
offence under Section 27 Arms Act.
Accused Asif Ali Khan is acquitted for
offence under Section 411 IPC.
JUDGMENT
CASE SET UP BY THE PROSECUTION :-
1. On 29.06.2007, complainant Sh. Rahees Ahmed was coming on his motorcycle bearing no. DL-7SAT-1340 (Hero Honda Splendor) from the side of Jafrabad. At about 08:45 PM, when he reached near E-1 Block, Seelampur on 66 Foota Road, he received a telephone call and he stopped his motorcycle on the side of road and was hearing the call. At that time, three boys came there and surrounded him. One boy put a knife on his abdomen and two other boys took out country made pistol.
They snatched his mobile phone and switched it off. They gave threats to kill and started taking his search. When complainant resisted their search, then one of the assailants stabbed him on his left thigh with knife. At that moment, two police officials on a motorcycle reached there, who asked three robbers to stop. Those robbers took mobile phone make Nokia 2600 having SIM No.9810177262 and cash amount of Rs.5,500/- from the complainant and started running away towards Seelampur. Both police officials chased those robbers and asked them to stop. When the motorcycle of police officials reached near the robbers, then one of the robbers fired at those police officials. In order to save themselves, the motorcycle of police officials fell down and (Pulastya Pramachala) Page no. 2 of 30 ASJ (Shahdara) Karkardooma Courts / Delhi FIR No.368/07 PS : Seelampur taking advantage of the same all three robbers fled away.
2. Those police officials namely HC Surender and HC Radhey Shyam gave information to police control room through wireless set and PCR reached the spot, which took the complainant to GTB hospital. SI Arjun Singh also reached the spot from PS Seelampur. He found HC Radhey Shyam and HC Surender on the spot and came to know about this incident through them. He went to GTB hospital and recorded statement of the complainant. On the basis of statement given by the complainant, present FIR was registered under Section 394/397/186/353/307/34 IPC and under Section 27 Arms Act. Later on, police officials of crime branch arrested the accused persons in FIR No.377/07, PS Seelampur in the night of 05.07.2007. They recorded disclosure statement of all accused persons and came to know about their involvement in the present case. They had recovered one country made pistol each from accused Shamshad and Rahis Ahmed @ Arsh and one knife from the accused Asif Ali. They also recovered mobile phone of complainant from accused Asif Ali. The crime team officials informed IO of this case and IO SI Arjun Singh collected the documents prepared by crime team on 06.07.2007. Thereafter, he formally arrested all three accused persons in Tihar Jail on 10.07.2007. All accused persons were produced before ld. MM on 11.07.2007, when IO moved application for their TIP in this case. All the accused persons refused to participate in TIP on the grounds that their photographs were taken by the media and their faces were shown to the witnesses at the office of Crime Branch, Delhi. Later on, HC Surender and HC Radhey Shyam and complainant identified these accused persons at the time of (Pulastya Pramachala) Page no. 3 of 30 ASJ (Shahdara) Karkardooma Courts / Delhi FIR No.368/07 PS : Seelampur their production before the court of ld. MM on 25.07.2007 and hence, all these accused persons were chargesheeted by police in this case under Section 186/353/307/394/ 397/411/34 IPC & under Section 27 Arms Act.
3. On 12.12.2007, charges were framed for offence under Section 394/34 IPC r/w Section 397 IPC, 186/34 IPC, 353/34 IPC and 307/34 IPC against the accused Shamshad Ahmad, Rahis Ahmad @ Arsh and Asif Ali Khan @ Sophiyan Ali, to which they pleaded not guilty and claimed trial. On the same day, charge was framed for offence under Section 27 Arms Act against accused Shamshad Ahmad and Rahis Ahmad @ Arsh and under Section 411 IPC against accused Asif Ali Khan @ Sophiyan Ali, to which they pleaded not guilty and claimed trial. PROSECUTION EVIDENCE :-
Prosecution examined 24 witnesses in support of its case and their description and role are as follows :-
PW Name of Role of witness Proved document/
No. witness article
PW-1 Sh. Rahees Complainant/victim of Initial complaint i.e.
Ahmed robbery Ex.PW-1/A. Seizure
memo of his pant
Ex.PW-1/B. Mobile
phone Nokia 2600 with
Idea SIM Card
Ex.PW-1/Article-1.
Blood stained Jeans
Pant
Ex.PW-1/Article-2.
PW-2 W/Ct. Sudha DD writer of DD No.7-B DD No.7-B as
Ex.PW-2/A
(Pulastya Pramachala)
Page no. 4 of 30 ASJ (Shahdara)
Karkardooma Courts / Delhi
FIR No.368/07 PS : Seelampur
PW-3 HC Radhey Witness to robbery and victim Shyam as public servant for the purpose of 186/353/307 IPC PW-4 HC Naresh Duty officer to record FIR. FIR as Ex.PW-4/A Pal PW-5 Smt. Anita Senior Scientific Assistant Biological report as Chhari (Biology Department) FSL Ex.PW-5/A. Rohini, Delhi. Serological report as Ex.PW-5/B. PW-6 Dr. Lawish Opinion of simple injury to MLC of PW-1 as Aggarwal PW-1 as given by Dr. Ram Ex.PW-6/A having the Milan. relevant portion of opinion.
PW-7 HC Vinod Witness to arrest and Seizure memo of knife recovery of weapons and as Ex.PW-7/A. Seizure (From crime mobile phone from accused memo of mobile phone Branch) persons. as Ex.PW-7/B. Sketch of knife as Ex.PW-7/C. PW-8 Dr. Sanjay Identified handwriting and MLC of PW-1 Kumar signature of Dr. Zuthuanluaia, Ex.PW-6/A. who prepared MLC of PW-1.
PW-9 Sh. Data Complainant under Section Complaint under
Ram, ACP 195 Cr.P.C. Section 195 Cr.P.C as
Ex.PW-9/A.
PW-10 Ct. Pratap Witness to arrest and Seizure memo of pistol
recovery of weapons and and one live cartridge
(From crime
mobile phone from accused recovered from Rahis
Branch)
persons. Ahmed as
Ex.PW-10/A. Sketch of
that pistol and
cartridge as
Ex.PW-10/B. Same
pistol as
Ex.PW-10/Article-1
and live cartridge as
Ex.PW-10/Article-2.
(Pulastya Pramachala)
Page no. 5 of 30 ASJ (Shahdara)
Karkardooma Courts / Delhi
FIR No.368/07 PS : Seelampur
PW-11 HC Raj Witness to arrest and Country made pistol
Kumar recovery of weapons and with one live and one
(From crime mobile phone from accused fired cartridge as
persons. Ex.PW-11/Article-1
Branch)
and
Ex.PW-11/Article-2
(colly for cartridges)
PW-12 Sh. Atul Dev, Produced judicial case file of Original documents
Ahlmad FIR No.377/07, PS prepared by crime
Shahdara. team after arrest of all
accused persons.
PW-13 Sh. Sanjeev Proved TIP proceedings of TIP proceedings as Kumar Singh accused persons. Ex.PW-13/A, Ex.PW-13/B and (the then MM) Ex.PW-13/C. PW-14 SI Brahm Dev IO of FIR No.377/07, who (From crime arrested all the accused persons in that case.
Branch)
PW-15 Ct. Rajiv Witness to arrest and
(From crime recovery of weapons and
mobile phone from accused
Branch)
persons.
PW-16 HC Murari Lal Being MHC(M) received one Entry in register no.19
sealed parcel and sample as Ex.PW-16/A and
seal on 29.06.2007 and three copy of RC as
sealed parcels and three Ex.PW-16/B.
mobile phones on
5/6.07.2007 in PS
Seelampur. Thereafter, sent
two parcels to FSL and made
all relevant entries in register
no.19.
PW-17 HC Tooki Took sealed parcels to FSL
Ram Kolkata and returned back
the parcels to MHC(M)
without depositing the same.
(Pulastya Pramachala)
Page no. 6 of 30 ASJ (Shahdara)
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FIR No.368/07 PS : Seelampur
PW-18 Ct. Balesh Joined investigation with SI
Kumar Arjun Singh on 29.06.2007.
PW-19 HC Surender Witness to robbery and victim Pal as public servant for the purpose of 186/353/307 IPC PW-20 Ct. Surender Joined investigation with SI Arjun Singh on 11.07.2007.
PW-21 HC Maharaj Deposited two sealed parcels
Singh and one sample seal in FSL
Rohini on 03.10.2007.
PW-22 SI Ravi Witness to arrest and
Shankar recovery of weapons and
(From crime mobile phone from accused
persons.
Branch)
PW-23 HC Mohar PCR official who took PW-1
Pal Singh to GTB hospital.
PW-24 Insp. Arjun IO of this case. DD No.20-A as
Singh Ex.PW-24/A.
Endorsement on the
statement of PW-1 as
Ex.PW-24/B. Site plan
as Ex.PW-24/C. Arrest
memo of Shamshad,
Rahis and Asif Ali as
Ex.PW-24/C,
Ex.PW-24/D and
Ex.PW-24/E
respectively.
DEFENCE EVIDENCE :-
Accused persons examined two witnesses in their defence.
4. DW-1/Smt. Sajida Begum deposed that accused Rahis is her nephew, who had attended a function at her house no.K-122, Janta Colony, Welcome, Seelampur, Delhi on 29.06.2007 from 04:00 PM to (Pulastya Pramachala) Page no. 7 of 30 ASJ (Shahdara) Karkardooma Courts / Delhi FIR No.368/07 PS : Seelampur 03:00-04:00 AM next day.
5. DW-2/Sh. Pyare Nabi deposed that he was employer of accused Asif and according to him Asif was working in his factory on 29.06.2007 from 09:00 AM up to 11:00 PM.
PLEA OF ACCUSED UNDER SECTION 313 CR.P.C. :-
6. All the accused persons denied the correctness of allegations that they were robbing PW-1 and they started running away after seeing PW-3 and PW-19. Accused Shamshad further denied that he fired towards PW-3, when PW-3 and PW-19 were chasing them. He also denied that motorcycle of PW-3 slipped in the process of saving themselves. All the accused persons denied robbing PW-1 of his Nokia mobile phone and Rs.5,500/-. They also denied that they were arrested by crime team officials on 06.07.2007 or that they were found in possession of country made pistol, knife as well as Nokia mobile phone belonging to the complainant. They took plea that all these articles were planted upon them. They admitted that they had declined to participate in TIP and they took plea that they were not produced from Tihar Jail in muffled faces. They also took plea that their photographs were taken by concerned police officials and they were also shown to the witnesses prior to the producing them before concerned Metropolitan Magistrate for the purpose of judicial TIP. They further took plea that all the documents were artificially prepared by the police and they were falsely implicated because of their enmity with police officials of crime branch, R.K. Puram namely SI Ravi Shankar (PW-22), Ct. Rajiv (PW-15) and HC Raj Kumar (PW-11).
ARGUMENTS ON BEHALF OF PROSECUTION :-
(Pulastya Pramachala) Page no. 8 of 30 ASJ (Shahdara) Karkardooma Courts / Delhi FIR No.368/07 PS : Seelampur
7. Ld. Addl. PP submitted that all three accused persons were duly identified by PW-3 and PW-19 as the robbers, who had robbed PW-1.
He further submitted that both these witnesses also identified accused Shamshad Ahmad as the person, who had fired upon them. He argued that PW-1 though supported the case of prosecution on all material aspects, but he turned hostile on the point of identification of the accused persons. The reason given by PW-1 for not identifying the accused persons is apparently artificial and improbable, which shows that he was won over by the accused persons. Ld. Addl. PP also argued that credibility of police witnesses is no lesser than public witness and accused persons have not suggested any motive for PW-3 and PW-19 to falsely identify them. He also argued that present case rests upon the testimony of PW-1, PW-3 and PW-19. The testimony of other witnesses are in respect of formal aspects only and guilt of all three accused persons is well established on the basis of testimony of aforesaid three witnesses.
ARGUMENTS ON BEHALF OF ACCUSED PERSONS :-
8. Ld. defence counsels challenged the case of prosecution on the ground that PW-1 did not support the case on the point of identity of accused persons. They also challenged the case relating to recovery of mobile phone from accused Asif and arrest of all three accused persons by crime team police officials.
9. In the written arguments, following points have been raised on behalf of accused Rahis Ahmad @ Arsh and Asif Ali Khan @ Sufiyan Ali :-
● That no incriminating article was recovered from or at the instance of accused Rahis Ahmad in the present case, but for one mobile phone (Pulastya Pramachala) Page no. 9 of 30 ASJ (Shahdara) Karkardooma Courts / Delhi FIR No.368/07 PS : Seelampur allegedly shown to be recovered from the possession of accused Asif Ali Khan at the time of his arrest in another case FIR No.377/07, PS Seelampur, Delhi.
● That on 23.12.2014, the accused persons have already been acquitted of the charge in case FIR No.377/07, PS Seelampur by the court of Sh. Sanjay Sharma, ld. ASJ, Karkardooma Courts, Delhi. ● That the accused persons refused to join the TIP proceedings in the present case on the ground that they had been shown to the concerned prosecution witnesses and their photographs were taken when they were arrested in case FIR No.377/07, PS Seelampur, Delhi. ● That there is no evidence on the entire judicial record that the accused persons were kept in muffled face after their arrest on 05.07.2007 in case FIR No.377/07, PS Seelampur till they were produced before the concerned court on 07.07.2007 in that case.
● That the prosecution has miserably failed to establish the identity of the accused persons in the present case in connection with charges under Section 394/397 IPC, because the complainant (PW-1) has not identified the accused persons during his examination before this Court.
● That the prosecution has further miserably failed to establish the charges leveled against the accused persons beyond all reasonable doubts.
● That the accused persons have been falsely implicated in the present case due to enmity with the concerned police officials because the concerned police officials wanted to settle their score with the accused persons.
(Pulastya Pramachala) Page no. 10 of 30 ASJ (Shahdara) Karkardooma Courts / Delhi FIR No.368/07 PS : Seelampur
10.In the written arguments, following points have been raised on behalf of accused Shamshad :-
● That the accused has been falsely implicated in the present case on the basis of his disclosure statement in another case, whereas he had not committed any such offence as has been alleged against him by the concerned police.
● That no alleged robbed article had been recovered from the possession of the accused in the present case. ● That Shamshad refused to join TIP because he was shown to the complainant and other witnesses and his photos were also taken by the police officials of Crime Branch at the time of his arrest in case FIR No. 377/07, registered at PS Seelampur, Delhi under Section 186/353/307/34 IPC and under Section 103 Delhi Police Act and 25/27 of Arms Act.
● That Shamshad was arrested on 05.07.2007 and he was kept unmuffled till 11.07.2007 and he was also produced unmuffled before the concerned court in case FIR No.377/07, PS Seelampur, Delhi. ● That the complainant of the present case Sh. Rahees Ahmad did not identify the accused before this Court during his evidence. ● That HC Radhey Shyam (PW-3) and HC Surender Pal (PW-19) had deposed contrary to each other in respect of fire made upon the police party. As per the statement of PW-3, Shamshad fired upon the police party and as per PW-19 accused Asif Ali fired upon the police party. ● That since complainant (PW-1) did not identify Shamshad before this Court and as per the statement of PW-3 and PW-19, the identification of Shamshad was impossible because they had seen Shamshad from (Pulastya Pramachala) Page no. 11 of 30 ASJ (Shahdara) Karkardooma Courts / Delhi FIR No.368/07 PS : Seelampur a distance of about 15 yards and it is the admitted case of the prosecution that there was darkness at the spot.
11. Ld. defence counsel referred to Murari v. State, 2011 [2] JCC 1233, to point out following observations made by the court :-
"According to the prosecution, appellants Suresh, Rakesh, Sandip and Chandan were arrested on 17.07.2007 at about 03:00 PM. They were also taken to the spot. No evidence has been produced by the prosecution to show that the appellants were instructed to keep their faces muffled at the time of their arrest. Moreover, if the investigation is not fair, there is every possibility of the appellants being shown to the witnesses. Although, Ct. Rohtash was alleged to be an eye witness, yet he was associated by the IO in the search of the assailants (the appellants). Moreover, not even a bare minimum description of the assailants (the appellants) was given in his statement Ex.PW-9/A by Mohd. Sagir. Even the age, the build, the height or the clothes worn by the assailants were not mentioned in the statement. After the apprehension of the appellants TIP has to follow when the crime was committed by unknown persons. Associating Ct. Rohtash in search of the appellants casts serious reflection on the fairness of the investigation by the IO. While refusing to participate in the TIP, the five appellants stated that their photographs were taken through mobile phone and they were shown to the witnesses. This plea of the appellants cannot be easily brushed aside. Even otherwise, the refusal to join the TIP itself is not sufficient to hold the appellants guilty."
FINDINGS :-
12.Before analyzing the evidence on the record, I would refer to the charges framed against the accused persons. It was alleged against all three accused persons that on 29.06.2007 at about 08:45 PM on 66 foota road, in front of E-1 Block Seelampur, in furtherance of their (Pulastya Pramachala) Page no. 12 of 30 ASJ (Shahdara) Karkardooma Courts / Delhi FIR No.368/07 PS : Seelampur common intention accused persons committed robbery of one mobile phone make Nokia 2600 bearing SIM No.9810174262 and Rs.5,500/-
from complainant Rahis Ahmad (PW-1) on the point of knife and country made pistols and they also caused hurt to the complainant while committing the robbery thereby committing offence under Section 394 IPC read with Section 397 and 34 IPC.
13. It was also alleged against all three accused persons that in furtherance of their common intention, at the same time and place, they voluntarily obstructed HC Surender (PW-19) and HC Radhey Shyam (PW-3) in the discharge of their public function, thereby committing offence under Section 186 read with 34 IPC.
14. It was also alleged against all three accused persons that in furtherance of their common intention, they used criminal force against aforesaid public servants with intent to deter them from discharging their duties as such public servants, thereby committing offence under Section 353 read with 34 IPC.
15.Lastly, it was alleged against all three accused persons that in furtherance of their common intention, they fired upon both aforesaid public servants with intention or knowledge that if they would have caused death of these public servants, then they would have been guilty of murder and thus they committed offence under Section 307 read with Section 34 IPC.
16.It was also alleged against accused Shamshad and Rahis Ahmad that they used country made pistol without permit or license against complainant Rahees Abhmad, while committing the robbery, thereby committing offence under Section 27 Arms Act.
(Pulastya Pramachala) Page no. 13 of 30 ASJ (Shahdara) Karkardooma Courts / Delhi FIR No.368/07 PS : Seelampur
17.It was also alleged against accused Asif Ali that on 05.07.2007 at about 09:00 PM on 66 foota road, near Tent Wala School, Jafrabad, he was found in possession of mobile phone make Nokia 2600 belonging to complainant Rahees Ahmad, which he had received or retained knowing or having the reason to believe that the same was stolen property, thereby committing offence under Section 411 IPC.
18. PW-1/Rahees Ahmad deposed that on 29.06.2007 at about 7-8 PM, he was going to his home on his motorcycle no. DL-7SAT-1340, from Jafrabad via Seelampur. When he reached main Seelampur road, he received a telephone call on his mobile and he stopped his motorcycle on the side of the road to attend that call. At that time three persons came from his behind. Two persons put country made pistols on his abdomen from both sides and third person was having knife. One of them snatched his mobile phone and they demanded money from him. He refused to give money to them and one person inflicted knife injury on his thigh. In the meantime, two police officials reached there on a motorcycle. On seeing the police officials, those three persons started running and police officials started chasing them. One person out of those three assailants fired towards police officials, but this witness did not notice whether police officials sustained any injury. Those three persons ran away from the spot. Thereafter, PCR van reached and removed him to GTB hospital. His statement was recorded in the hospital and the witness identified his statement as well as his signature on the same, which is Ex.PW-1/A. The robbers snatched his Nokia 2600 and Rs.5,500/- from his pocket. However, this witness did not identify the accused persons as robbers stating that at the time of (Pulastya Pramachala) Page no. 14 of 30 ASJ (Shahdara) Karkardooma Courts / Delhi FIR No.368/07 PS : Seelampur incidence there was darkness, therefore, he could not identify the robbers. He further denied having identified accused persons in the presence of police officials. He could not be sure about the accused persons being the same robbers, who robbed him and inflicted knife injury upon him.
19. This witness was cross-examined by ld. Addl. PP on the grounds that he had resiled from his previous statement. In his cross-examination by ld. Addl. PP, this witness denied that on 11.07.2007, he visited police station and identified accused Shamshad Ahmad as the person who was having country made pistol and who had fired towards police officials. He also denied the suggestion that on 25.07.2007 he had visited Karkardooma Court and had identified all three accused persons as robbers in this case, in the presence of PW-3 and PW-19. He denied making supplementary statement dated 11.07.2007 i.e. Ex.PW-1/C and dated 25.07.2007 i.e. Ex.PW-1/B. He also denied that IO/PW-24 had prepared site plan at his instance or that he had compromised with the accused persons. However, he identified the mobile phone make Nokia 2600 during its production before the Court, to be the same which was robbed from him. He also identified his blood stained Jeans, which was seized by the police after the incident.
20.In his cross-examination by defence counsel, he denied that the mobile phone did not belong to him or that he had identified the same before the Court at the instance of police officials.
21.Another star witness of the prosecution, PW-3/HC Radhey Shyam deposed that on 29.06.2007 he was on patrolling duty on 66 foota road on his motorcycle no. DL-17N-3770. At about 08:35 PM, he was (Pulastya Pramachala) Page no. 15 of 30 ASJ (Shahdara) Karkardooma Courts / Delhi FIR No.368/07 PS : Seelampur coming to Seelampur side from Maujpur Chowk and he met HC Surender (PW-19) at Kabari Market Puliya. He stopped his vehicle and was talking to PW-19, when at about 08:45 PM a motorcycle rider came from Maujpur side and told him that three persons were robbing another person in front of E-1 Bus Stop. He along with PW-19 reached in front of E-1 Block while driving on the wrong side itself and they found that three persons were robbing one person. He identified all accused persons as the robbers. He further deposed that accused Asif was having knife in his hand and accused Shamshad as well as Rahis were having country made pistols. He asked accused persons to stop and on seeing them, the accused persons started running. Accused Asif started running towards bus stop and other two accused persons started running on the road. This witness with PW-19 chased the accused persons on motorcycle and then accused Shamshad fired towards them. In saving themselves, their motorcycle slipped and fell down and thereafter, they further tried to chase the accused persons on foot, but all three accused persons managed to run away. Thereafter, he came back to the complainant and found him in injured condition. He came to know his name and complainant told him about the robbery of Rs.5,500/- and mobile phone. He informed control room through wireless set about this incident and PCR van reached there which took injured to the hospital. Other police officials i.e. SI Arjun Singh/PW-24 also reached there. Thereafter, SI Arjun Singh came back to the spot along with complainant at about 10:30 PM and he prepared the site plan and recorded his statement.
22.In his cross-examination, he admitted that in his statement before IO he (Pulastya Pramachala) Page no. 16 of 30 ASJ (Shahdara) Karkardooma Courts / Delhi FIR No.368/07 PS : Seelampur had not mentioned the name and role of accused persons and that at that time he was not aware of the name of the accused persons. He further deposed that he had seen the incident from the distance of around 2 feet. He further deposed that he had stopped his motorcycle after reaching near the accused persons, who were running but he did not sustain any injury due to fall from motorcycle. PW-19 also did not sustain any injury. Their cloths were not torn due to fall. He further deposed that at the time of firing all three accused were not together. Only one accused was standing near the another accused who fired and the third accused was at a distance of around 40 feet. He admitted that he had stated before IO that the culprits managed to escape due to darkness. He further deposed that he was at a distance of around 20 feet from the accused, who fired upon him. He along with PW-19 had chased two accused including the one who fired upon him and the third accused was not chased by them on foot. He had informed PCR and PCR van reached there within 10 minutes. Local police arrived at the place of incident after removal of the injured by the PCR. The site plan was prepared by IO at around 11:00 PM and at that time PW-19 and PW-1 were also present there.
23.Another star witness of the prosecution was PW-19/HC Surender Pal.
He also deposed that on 29.06.2007, he was on picket duty at Kabari Puliya, Road no.66, Seelampur and at about 08:35 PM PW-3 came to him on a motorcycle. They were talking and in the meantime at about 08:40 PM one motorcycle rider came there and told them that three boys were robbing one person at E-1 Block, near Bus Stand. Thereafter, both of them reached there and saw that three boys were (Pulastya Pramachala) Page no. 17 of 30 ASJ (Shahdara) Karkardooma Courts / Delhi FIR No.368/07 PS : Seelampur searching a person. On seeing police officials, those boys started running away and these two police officials started chasing them. Two boys ran towards Jafrabad and one boy ran towards Seelampur. They chased the boy who was running towards Seelampur and that boy took out katta and fired towards them. In order to save themselves, they fell down on the road with motorcycle. Even thereafter, they tried to apprehend them, leaving the motorcycle, but that boy succeeded to run away. Other two boys also managed to run away. PW-3 gave message to control room regarding the incident and PCR van reached there. Complainant was in injured condition having stab wound on his left leg, who informed that accused persons had robbed Rs.5500/- and a mobile phone from him. He also deposed that he had seen the accused persons and he could identify them. On 11.07.2007, he was called at PS by the IO and in PS he saw that IO was interrogating the person, who had fired upon them. He identified him, whose name was revealed as Shamshad Ahmad. On 25.07.2007, he was again called at Karkardooma Courts by the IO and in Karkardooma Court at about 03:00 PM he saw all three accused persons in police custody, who was brought to the court and he identified them as the same persons who were involved in the incident of robbery. He identified all the accused persons before the court as well.
24.In his cross-examination, PW-19 deposed that the distance between the spot and police picket is about one furlong. He denied the suggestion that PW-3 came from the side of spot of incident. He further deposed that the incident took place in front of E-1, Bus Stand, Seelampur and it took around 2 minutes to reach the spot. They saw (Pulastya Pramachala) Page no. 18 of 30 ASJ (Shahdara) Karkardooma Courts / Delhi FIR No.368/07 PS : Seelampur the accused persons from the distance of 10-15 yards and they warned the accused persons from that distance, when accused persons on hearing the sound of motorcycle and their words tried to run away from that place. They chased the accused persons and PW-3 was driving the motorcycle while he was the pillion rider. They were at the distance of around 10-15 feet when accused fired upon them. He admitted that accused persons managed to run away from the spot while taking benefit of night.
25.The other witnesses are formal in nature except the witnesses to recovery proceedings. It was argued on behalf of defence that the trial in FIR No.377/2007, PS Seelampur has concluded with an order of acquittal in favour of all accused persons. Certified copy of that judgment was also placed on the record during argument. That case was lodged on the basis of alleged recovery of country made pistols and knife from the accused persons. The common thread between that case and the present case is in respect of recovery of Nokia mobile phone, which allegedly belong to PW-1 and which was also robbed from PW-1. On the basis of that judgment of acquittal and absence of identification of the accused persons by PW-1, defence sought acquittal of accused persons in the present case as well. However, except for recovery of Nokia mobile phone from accused Asif and subsequent arrest of all accused persons in the present case, I do not find any relation between these two cases. The present case is based on the allegations of robbery and firing upon PW-3 and PW-19. Therefore, the evidence of officials of crime branch do not have much bearing on the merits of this case, except to the portion of recovery of Nokia mobile (Pulastya Pramachala) Page no. 19 of 30 ASJ (Shahdara) Karkardooma Courts / Delhi FIR No.368/07 PS : Seelampur phone. Therefore, there is still a requirement to make an appraisal of testimony of three star witnesses of this case i.e. PW-1, PW-3 and PW-19, in order to have an insight in the merits of this case.
26.As far as incident of robbery is concerned, all aforesaid three witnesses were consistent regarding the place of robbery, number of robbers and time of the robbery. The arrival of PW-3 and PW-19 on a motorcycle at the spot of incident during commission of robbery is also consistently deposed by these three witnesses. PW-3 and PW-19 did not claim that PW-1 was injured by robbers in their presence and same was the version of PW-1. However, it is well established with aid of testimony of PW-8/Dr. Sanjay Kumar, who proved MLC of PW-1 by identifying the handwriting and signature of Dr. Zuthuanluaia and testimony of PW-23/HC Mohar Pal, who took PW-1 in PCR van to GTB hospital, that PW-1 was actually injured with a knife on his left thigh and he was treated for the same as well. Therefore, it cannot be said that an artificial story of robbery was created by either PW-1 or by police officials. The dispute is limited to the identification of the robbers.
27.In respect of identity of the robbers, PW-1 did not support the case of prosecution and refrained from identifying the accused persons as the robbers. He did not say that he was unable to recollect the identity of robbers either due to poor memory or due to lapse of time. He gave the reasons for not identifying the accused persons stating that he could not see the assailants as there was darkness at that time. Now, it is to be seen that whether such reason projected by PW-1 is acceptable or it appears to be an artificial reason for not identifying the accused persons. As per version of PW-1, he was driving a motorcycle through (Pulastya Pramachala) Page no. 20 of 30 ASJ (Shahdara) Karkardooma Courts / Delhi FIR No.368/07 PS : Seelampur the place where the incident took place. He was surrounded by all three robbers, who first of all snatched his mobile phone and thereafter, they demanded money from him. When he refused, then one of robbers having knife inflicted knife injury on his thigh and they finally took away Rs.5500/- in cash from his pocket as well. All such transaction could not have taken place within fraction of seconds. It was bound to take sufficient time, so as to see the faces of the robbers. The robbers were not robbing him from a distance with aid of any remote control and therefore, it is not possible that PW-1 could not have seen their faces. It is not the case of PW-1 that all the robbers were having muffled faces. PW-1 duly identified his statement given to the police and proved the same as Ex.PW-1/A. In his statement given before police after this incident, PW-1 had given detailed description of each one of the three robbers. The person having knife was described as a boy with height of around 5 feet having fair complexion and wearing red T-shirt. The other two boys were described as having height of around 5feet 6inch having fair complexion. One of them was wearing white T-shirt and light blue pant and the third one was wearing T-shirt and pant. He had further given description that the boy wearing white T-shirt had fired upon police officials and the boy wearing red T- shirt had inflicted knife injury upon him. Therefore, from the description of all three robbers given by PW-1 before IO, it is well evident that he was able to see them properly and therefore, he could give account of their fair complexion as well as height etc. In these circumstances, it is apparent that PW-1 deliberately did not make any effort to identify the robbers before the court and gave a false excuse that due to darkness (Pulastya Pramachala) Page no. 21 of 30 ASJ (Shahdara) Karkardooma Courts / Delhi FIR No.368/07 PS : Seelampur he was not able to see them. Nonetheless, PW-1 by giving an artificial reason, left an indirect signal for the Court regarding identification of robbers.
28.However, PW-3 and PW-19 claimed that they had also seen the robbers and they had identified all the accused persons as the robbers. These two witnesses were not part of the police team, which allegedly apprehended all three accused persons in the night of 05/06.07.2007. The accused persons were allegedly arrested by officials of crime branch and they were arrested in this case by the IO on 10.07.2007 in Tihar Jail itself, during their custody in FIR No.377/07. The defence challenged identification of accused persons by PW-3 and PW-19 taking plea that they could not have seen them at the time of incident and these witnesses falsely identified the accused persons before the Court. The defence also took plea that there was darkness and even PW-3 and PW-19 admitted that the robbers fled away taking advantage of darkness.
29.However, from the testimony of PW-1 as well as PW-3 and PW-19, it is revealed that both these police officials had reached the spot of incident, when the robbers were still robbing the complainant/PW-1. PW-3 deposed that he would be at a distance of around 2 feet, when he could see the incident. On the other hand, PW-19 deposed that he had seen the accused persons from a distance of around 10-15 yards. The description of distance is normally given by any person on the basis of his personal estimation and guess work. Therefore, there cannot be account of uniform and precise description of distance in the testimony of different witnesses. Hence, the different distance (Pulastya Pramachala) Page no. 22 of 30 ASJ (Shahdara) Karkardooma Courts / Delhi FIR No.368/07 PS : Seelampur mentioned by PW-3 and PW-19 cannot cast any doubt over their credibility. Both these witnesses claimed that they had seen all the robbers. According to PW-19 the robbers were still searching the complainant/PW-1. PW-3 also deposed that all three persons were robbing one person. They challenged the robbers and asked them to stop. Thus, there was sufficient opportunity for both these witnesses to see the robbers. The robbers started running away, only when they noticed these police officials and heard their challenge. Therefore, it cannot be said that PW-3 and PW-19 could not have seen the robbers. Their admission that the robbers ran away taking advantage of darkness is to be seen in the context that all three robbers had finally managed to flee away and since it was night time, the darkness also helped them in managing to flee away. Such admission does not mean that PW-3 and PW-19 were not able to see anything, though PW-3 was driving his motorcycle in darkness without being able to see anyone or anything. It has also come in the evidence of PW-1 that the robber wearing white T-shirt had fired upon the police officials, when police officials were chasing them. It cannot be assumed that PW-1 would have intended to falsely support the case of the police, specially when he actually supported the accused by declining to identify them and giving an artificial excuse for the same. Thus, the version of PW-3 and PW-19 that when all three robbers started running away, they chased them on motorcycle and reached near one of them, when that accused fired upon them, is well corroborated from the testimony of PW-1. Once again it could not be expected of PW-3 and PW-19 to give a precise and accurate distance from the accused, when they were fired upon.
(Pulastya Pramachala) Page no. 23 of 30 ASJ (Shahdara) Karkardooma Courts / Delhi FIR No.368/07 PS : Seelampur Still, PW-3 and PW-19 gave the estimation of distance from the robber, who fired upon them as 20 feet and 10-15 feet respectively. There cannot be an artificiality in their statement that due to such firing they tried to save themselves and in that process motorcycle slipped and they fell down. So much of time was sufficing for the robbers to flee away and it so happened in this case as well. Thus, from the over all appraisal of the testimony of PW-3 and PW-19, I do not find any inconsistency so as to have a doubt over their claim that they had seen the robbers and that one of the robbers fired upon them. PW-3 and PW-19 categorically pointed out to accused Shamshad, as the person who had fired upon them.
30.The defence took another plea that accused persons did not participate in TIP because they were shown to the witnesses/complainant and their photographs were also taken by officials of crime branch. It was also argued that after arrest of accused persons, they were kept unmuffled till 11.07.2007 and they were produced before the court with unmuffled face.
31. From the record, it is revealed that all accused persons were arrested during late night of 05.07.2007 and early hours of 06.07.2007 and thereafter, they were taken to office of crime branch at R.K. Puram. PW-24/IO of this case approached the court of ld. MM seeking permission to arrest the accused persons and he was given permission to arrest the accused persons in Tihar Jail itself. It is not the case of defence that all accused persons were kept in police custody up to 11.07.2007, rather the unchallenged arrest memos of accused persons show that they were arrested at Tihar Jail. The application for TIP (Pulastya Pramachala) Page no. 24 of 30 ASJ (Shahdara) Karkardooma Courts / Delhi FIR No.368/07 PS : Seelampur proceedings i.e. Ex.PW-13/A mentions endorsement of ld. MM/PW-13 that all accused persons were produced with muffled face from J/C on 11.07.2007. Same fact is recorded by ld. MM in his TIP proceedings i.e. Ex.PW-13/B. The accused persons took plea before ld. MM that they did not want to participate in TIP as their photographs had been taken by the media and their faces were shown to the witnesses at the office of crime branch. On the record, defence did not produce any such material to show that photographs of the accused persons were published in any newspaper before 11.07.2007. I do not find any merit in the allegations that faces of accused persons were shown to witnesses of this case in the office of crime branch, for want of any specification of such witnesses in the contentions of accused. The accused persons raised a generalized and vague plea before the ld. MM, which cannot be accepted as truth for want of supporting evidence. The defence has not produced record of remand of the accused persons immediately after their arrest by officials of crime branch on 06.07.2007, to show that any such contention was made on behalf of accused persons before ld. MM. Once, the accused persons were remanded to J/C in FIR No.377/07 (which was lodged at the behest of crime branch), then there could not have been any possibility for IO of this case to obtain any photograph of the accused persons or to show their faces to PW-3 or PW-19 in Tihar Jail. The accused persons were produced from Tihar Jail, with muffled face on 11.07.2007, when IO moved application for their TIP. Therefore, I do not find any merit in the defence that accused persons had valid reasons to refuse to participate in TIP. PW-19 deposed that on (Pulastya Pramachala) Page no. 25 of 30 ASJ (Shahdara) Karkardooma Courts / Delhi FIR No.368/07 PS : Seelampur 11.07.2007 he had identified accused Shamshad Ahmad in PS as the person who had fired upon them and such testimony is in consonance with the case of prosecution that on 11.07.2007 IO had obtained police remand of accused Shamshad Ahmad after his refusal to participate in TIP and he was duly identified by PW-1, PW-3 and PW-19 in PS, as the person who had fired upon the police officials. The judgment passed in the case of Murari (Supra) does not help the defence in this case for the reasons of different kind of evidence on the record. In this case, though the accused persons were not apprehended immediately after the robbery, but their description was mentioned in the first statement of complainant/PW-1 as well as in the statement of PW-3 and PW-19 i.e. Ex.PW-1/A and Ex.PW-3/DA. The identity of Shamshad Ahmad was established on 11.07.2007 by virtue of identification by PW-1, PW-3 and PW-19. Even though PW-1 disowned such identification before the court, but such conduct of PW-1 is already found to be based on artificial reasoning. On the other hand, the consistency of PW-3 and PW-19 in material aspects, make their testimonies reliable.
32.Thus, on the basis of foregoing discussions, I find that the prosecution has established the identity of all three accused persons as the robbers, who had robbed PW-1 in the night of 29.06.2007. From the testimony of PW-3 and PW-19, it is also well established that accused Asif Ali Khan was carrying knife at the time of robbery, who inflicted knife injury upon PW-1. Accused Shamshad Ahmad and Rahis Ahmad were carrying country made pistols and accused Shamshad Ahmad had fired upon PW-3 and PW-19.
33. There are two aspects of investigation of a case. The first aspect is to (Pulastya Pramachala) Page no. 26 of 30 ASJ (Shahdara) Karkardooma Courts / Delhi FIR No.368/07 PS : Seelampur obtain evidence regarding the alleged crime and the other aspect of investigation of the case relates to arrest of accused persons and recovery of articles. In the present case, offences of robbery on the point of deadly weapons and firing of gun shot with country made pistol upon PW-3 and PW-19, are well established. The other aspect of arrest of the accused persons by the officials of crime branch does not affect the merit of the case regarding the commission of the crime and involvement of the accused persons in this case. However, recovery of the robbed mobile phone in the proceedings conducted by officials of crime branch does come under question, for want of reliability of the recovery proceedings. I have gone through the testimony of witnesses of recovery proceedings as given before this court as well as the judgment passed in FIR No.377/07, PS Seelampur. Even if, I disbelieve the recovery proceedings on the grounds of absence of public witnesses and contradictions as well as improbabilities arising out of the testimony of these witnesses, I do not have any reason to disbelieve the case of prosecution in this case regarding commission of offence under Section 394 read with Section 397 and 34 IPC and under Section 307 IPC. The accused persons were duly identified by PW-3 and PW-19 as the robbers. Accused Shamshad and Rahis were carrying pistol and Asif Ali was carrying a knife, which was also used to inflict injury on the thigh of PW-1. All these facts are duly proved by the prosecution. Just because, PW-1 i.e. a public witness turned hostile, the case of prosecution is not liable to be disbelieved. It is well settled now, that the testimony of police officials is sufficient to raise assumption of guilt, if they are found to be credible and trustworthy.
(Pulastya Pramachala) Page no. 27 of 30 ASJ (Shahdara) Karkardooma Courts / Delhi FIR No.368/07 PS : Seelampur [Reference :- Izazul v. State, 2007 (4) RCR (Crl.) 315.]
34. The court cannot be oblivious of the trend, wherein very often the public witness turns hostile for one or another reasons. The protective arms of law are not strong enough to maintain the confidence and integrity of a public witness till the time his testimony is recorded in the court. However, if other part of testimony of such public witness is in consonance with other evidence on the record and the over all appreciation of the evidence point out to the guilt of accused persons, then it would be travesty of justice, if the accused persons are let off on the basis of unfounded doubts. [Reference :- Bhagwan Singh v. State of Haryana, AIR 1976 SC 202.]. In the present case, I find that the description of incident of robbery as given by PW-1 coupled with the description of subsequent happenings as given by PW-3 and PW-19, do point out to the accused persons for their involvement in the incident of robbery and in the incident of firing upon PW-3 and PW-19.
35. All three accused persons had surrounded PW-1 with a common intention to rob him, using their respective weapons and they were equipped with deadly weapons at the time of committing robbery, which were also used by them to cause alarm to the victim/PW-1 and to cause injury on his left thigh. Therefore, all three accused persons are convicted under Section 394 IPC read with Section 397 and 34 IPC.
36. However, as far as charges under Section 186 and 353 IPC are concerned, I find that such charges are not made out against the accused persons because the accused persons did not obstruct the police officials i.e. PW-3 and PW-19, in discharge of their duty. They were running away and they did not apply any physical force against (Pulastya Pramachala) Page no. 28 of 30 ASJ (Shahdara) Karkardooma Courts / Delhi FIR No.368/07 PS : Seelampur these two officials. The factum of running away without applying any physical force against the police officials is borne out of the case of prosecution itself and in that situation none of these two offences can be said to have been committed by the accused persons. Therefore, all three accused persons are acquitted of the charges under Section 186 and 353 IPC read with Section 34 IPC.
37.As far as charge of offence under Section 307 read with 34 IPC is concerned, I find that this charge stands proved only against accused Shamshad Ahmad. Shamshad Ahmad had fired upon PW-3 and PW-19, while all three accused persons were running away. It cannot be said that before the accused persons started running, they formed a common intention to kill police officials and accused Shamshad Ahmad was assigned this job so as to fire upon them. It was an act out of instant decision taken by Shamshad Ahmad, to fire upon police officials, probably to facilitate his escape. It is not difficult to assume that at the time of firing upon police officials, accused Shamshad Ahmad could not have knowledge that by such act he could have caused death of PW-3. In fact, it was for accused Shamshad Ahmad to say that what was his intention. In any case, his act is well covered under Section 307 IPC and therefore, accused Shamshad Ahmad is convicted under Section 307 IPC and 27 Arms Act.
38. The charges under Section 27 Arms Act against accused Rahis Ahmad remained unproved because he was not apprehended immediately after the incident with the pistol, alleged to be possessed and used by him at the time of robbery. Unlike Shamshad Ahmad, he did not use the pistol so as to fire upon police officials and therefore, it still remains (Pulastya Pramachala) Page no. 29 of 30 ASJ (Shahdara) Karkardooma Courts / Delhi FIR No.368/07 PS : Seelampur unanswered question that whether the pistol carried by him was actually a fire arm or not. The pistol allegedly recovered by the officials of crime branch cannot be connected with this case and in that situation Rahis Ahmad is acquitted of the charges under Section 27 Arms Act.
39. Since, I have already found accused Asif guilty under Section 394 read with Section 397 IPC and I have opted not to believe upon the recovery proceedings, which included recovery of Nokia mobile phone allegedly belonging to complainant/PW-1, therefore, accused Asif Ali is acquitted of the charges under Section 411 IPC.
Announced in the open court (PULASTYA PRAMACHALA)
today on 09.03.2015 Additional Sessions Judge (Shahdara),
(This judgment contains 30 pages) Karkardooma Courts, Delhi
(Pulastya Pramachala)
Page no. 30 of 30 ASJ (Shahdara)
Karkardooma Courts / Delhi