Delhi District Court
State vs Zafar Etc. on 9 September, 2011
IN THE COURT OF SHRI SANJAY SHARMA
ADDITIONAL SESSIONS JUDGE - I (EAST)
KARKARDOOMA COURTS : DELHI
SC No. 72/2009
Unique Case ID No. 02402R0687412007
FIR No. 388/2007
PS Mandawali
Under Section 307/186/353/34 IPC
and Section 25/27 Arms Act.
State Versus Zafar etc.
1. Zafar S/o Zakir
R/o C387 Mulla Colony,
New Ashok Nagar, Delhi
2. Kashid @ Raju S/o Makinuddin
R/o Janta Colony, Welcome, Delhi
Date of Institution of Case : 25.2.2008
Date on which judgment Reserved : 01.9.2011
Date on which judgment delivered : 08.9.2011
J U D G M E N T :
The case of the prosecution in brief is that on an incident of snatching occurred in the Pandav Nagar area on 17.8.2007, a message was broadcast from DCP(East). At about 4 PM Ct. Hari Singh of PS Mandawali was deputed on checking duty at FIR No. 388/2007 1 of 13 Khichripur bridge TPoint. At that time both the accused came on a motor cycle without number plate from Narwana roadside and without wearing helmets whose description was resembling with the wanted culprits. Ct. Hari Singh came infront of their motor cycle to stop but the accused turned back and tried to escape from the spot with the motor cycle. In the meanwhile, Ct. Rajeshwar, who was on patrolling duty on govt. motor cycle, also reached there whom Ct. Hari Singh called to stop the accused. Thereafter the accused turned their motor cycle towards Ct. Hari Singh who then stood infront of their motor cycle. On finding themselves in the police net, accused Zafar, who was driving the motor cycle, stopped and took out a country made pistol and pointed out towards Ct. Rajeshwar and shouted "Agar hame pakadne ki koshish ki to goli maar dunga"while accused Kashid @ Raju shouted by saying "Maar goli saale ko". Both the constables then charged upon the accused on which accused Zafar tried to fire a shot upon Ct. Rajeshwar but it failed and he caught hold the hand of Zafar and lifted his hand upward and snatched away his pistol. Accused Kashid @ Raju tried to rescue Zafar by pushing Ct. Rajeshwar but Ct. Hari Singh overpowered him who was found wearing a punch in his right hand which was made of metal like object. A live cartridge was also recovered from him. A bag was tied around his waist which was FIR No. 388/2007 2 of 13 found having two iron rods. Ct. Hari Om informed the SHO at PS on which IO/SI Parveen reached the spot and recorded the statement of Ct. Hari Singh on the basis of which present case was registered against the accused. Both the accused were arrested and after completion of investigation , charge sheet was prepared for the offences punishable under Section 307/186/353/34 IPC and Section 25/27 Arms Act and subsequently, it was filed in Court.
2. After the case was committed to the court of Sessions and on considering the material placed on record, charge dt. 06.2.2009 was framed against both the accused for the offences punishable under Section 186/353/307/34 IPC and a separate charge for the offence punishable under Section 27 Arms Act was framed against accused Zafar. Both the accused pleaded not guilty to the charges and claimed trial.
3. The prosecution examined eight witnesses in all to prove the allegations. PW1 HC Ali Haider was the Duty Officer who proved the present FIR No. 388/2007 as Ex.PW1/A and also proved his endorsement made on the ruqqa as Ex.PW1/B . PW2 Ct. Hari Singh and PW3 Ct. Rajeshwar deposed the above facts on material particulars. PW2 proved his statement as Ex.PW2/A and site plan FIR No. 388/2007 3 of 13 prepared at his instance as Ex.PW2/G. Both the witnesses proved the sketch of katta and cartridge recovered from accused Zafar as Ex.PW2/B and their seizure memo as Ex.PW2/C. They further proved the sketch of cartridge recovered from accused Kashid as Ex.PW2/D, seizure memo of punch and bag recovered from him as Ex.PW2/E, seizure memo of motor cycle as Ex.PW2/F, arrest memo of both the accused as Ex.PW2/H and PW2/I and their personal search memos as Ex.PW2/J and PW2/K and they further identified the case property in court, i.e. black colour bag recovered from accused Kashid as Ex.P1, punch recovered from him as Ex.P2, country made pistol and cartridges recovered from accused Zafar as Ex.P3 and Ex.P4 respectively and the cartridge recovered from accused Kashid as Ex.P5 .
PW4 Ct. Sudesh deposited the exhibits at FSL, Rohini. PW5 Ins. Ram Chander Sangwan was posted as SHO PS Mandawali on 17.8.2007. He deposed that on receiving information from Ct. Hari Singh regarding apprehension of accused, he directed SI Parveen Kumar to reach the spot and after investigation he gave complaint U/S 195 Cr. PC Ex.PW5/A .
PW6 SI Parveen Kumar was the IO and he deposed regarding the investigation conducted by him and proved the relevant documents, as stated herein above, besides seizure memo FIR No. 388/2007 4 of 13 of cartridge recovered from accused Kashid and ruqqa as Ex.PW6/A and PW6/B respectively. He further proved disclosure statement of both the accused as Ex.PW6/C and PW6/D, pointing out memo of the place where accused Kashid dropped the katta while committing snatching as Ex.PW6/E and his supplementary disclosure statement as Ex.PW6/F. He also proved the FSL Result as Ex.PW6/G. He identified the case property in the court as well.
PW7 Meena Khatoon was the superdar of motor cycle No. DL13S B0849 make TVS Star Sports who proved the superdginama as Ex.PW7/A . PW8 Ct. Anita was the DD writer and she proved DD No. 16B and 25B as Ex.PW8/A and PW8/B respectively.
4. Statement of both the accused were recorded under Section 313 Cr. PC and the entire incriminating evidence was put to them which they denied and pleaded innocence. They claimed that no recovery was effected from them or at their instance and that their signatures were obtained on certain documents at the PS without disclosing their contents.
5. The accused chose to lead evidence in defence and examined HC Subhash Chand as DW1. He deposed that there is a FIR No. 388/2007 5 of 13 park on the west side of PS Mandawali and Fire Brigade Office on its East side and a Voter Icard office situated inside Fire Brigade office.
6. I have heard Ld. APP for the State, Shri AK Johri - Advocate for both the accused and have carefully gone through the case file.
7. The main witnesses of this case were PW2 and PW3. They deposed about the incident at length , however, there was no effective crossexamination of either of the two witnesses. It was categorically deposed by both the witnesses that when they tried to stop the accused who were on motor cycle, they firstly tried to run away but when they were confronted by these witnesses, accused Zafar took out a country made pistol and threatened them to be killed while accused Kashid exhorted him to shoot them. It is needless to say that both the witnesses were performing their duties as public servants. There was no crossexamination regarding the said alleged act of the two accused. Infact, in the crossexamination PW2 particularly pointed out that Zafar was driving the motor cycle.
FIR No. 388/2007 6 of 13
8. Ld. Counsel for the accused pointed out that PW2 was not having any description of the accused, however, PW2 deposed that he was having information that one of the boy was wearing blue colour shirt and when they tried to reverse their motor cycle on seeing him, his suspicion was confirmed. Only certain questions regarding the place of incident and its nearby locations were put to PW2 which he clarified but he was never confronted with the site plan about those locations. Even no suggestion was put to PW2 that the accused never took out any katta or threatened to kill him or that they never tried to fire upon him and PW3.
9. Similarly, there was no effective crossexamination of PW3 either. He too in his crossexamination categorically deposed that accused Kashid tried to fire upon him with a pistol but he did not fired. No suggestions were given to this witness as well contrary to the prosecution case and denying the alleged incident.
10. Ld. Counsel for the accused further pointed out that PW6/IO deposed that accused Kashid was taken to the place where he had alleged dropped his katta while committing snatching, which is another case whereas the katta was never found there. In my opinion this does not make any difference as it was a separate case FIR No. 388/2007 7 of 13 of snatching while the present case deals with deterring public servant from performing their duties. The Ld. Counsel placed the testimony of PW1 SI Hari Ram, IO of case FIR No. 446/2007 of PS Pandav Nagar which is another case against the accused. However, since this testimony was never put to the IO and he was not confronted with it, the same cannot be read in evidence nor can be considered by this Court.
11. Ld. Counsel for the accused vehemently argued that no public person was joined in the investigation though they were available. It is not in every case that police witnesses are to be disbelieved only because they are police officials. When in the present case a police official was the complainant and the victim and another an eye witness, then , even if no public person was joined in the investigation that would not effect the prosecution case that too when the credibility of PW2 and PW3 could not be challenged in the crossexamination .
12. It was pointed out by Ld. Defence Counsel that PW6 in his examinationinchief deposed that he took casual search of Kashid and recovered a live cartridge from his possession while in his crossexamination he deposed that he had not taken the search of FIR No. 388/2007 8 of 13 the accused which had already been taken before his reaching the spot. However, the witness explained that he had only recovered the cartridge from the pant pocket of accused Kashid. Thus, there is no anomaly or contradiction in the testimony of PW6 as tried to be pointed out by Ld. Counsel. It was also submitted that PW6 deposed that he arrested the accused at about 8.30 PM while their arrest memo shows the time of arrest to be 9.30 PM. In my opinion this is a minor human error which can easily be brushed aside considering the entirety of the testimony of PW6. Further more, he was not an eyewitness to the incident which has been duly proved by PW2 and PW3.
13. Ld. Counsel further submitted that the IO failed to mention any number on the bottom of the recovered cartridge. In this regard, PW6 deposed that the number may be on the base but inadvertently it was not noted by him. In this regard the court observation during the examination of PW2 is relevant when for the first time the case property was opened. It was observed by the Court that the words appearing on the sample seal "FSL PP DELHI" corresponded with the seal on the pullandas which were opened containing case property which shows that it was the same exhibits which were sent to the FSL and seized from the spot.
FIR No. 388/2007 9 of 13
14. The accused also examined a witness in their defence, i.e. HC Subhash Chand, who was earlier cited as a prosecution witness. However, nothing could be extracted from him to the favour of the accused.
15. The above discussion clearly shows that the prosecution has been able to prove beyond reasonable doubt that the accused had voluntarily obstructed PW2 in discharging his official duties and used criminal force and assaulted him in order to deter him from performing his duties. It has also been proved that both the accused made an attempt to kill PW2 and PW3 by firing with a country made pistol. Accordingly, both the accused namely Zafar and Kashid are hereby held guilty and are convicted for the offences punishable under Section 186/353/307/34 IPC. However, since the sanction under Section 39 of the Arms Act was not duly proved, therefore, accused Zafar is hereby acquitted for the offence punishable under Section 27 of the Arms Act. ANNOUNCED IN OPEN COURT ON 8th day of September 2011 (SANJAY SHARMA) ADDL. SESSIONS JUDGE(EAST) I KARKARDOOMA COURTS : DELHI FIR No. 388/2007 10 of 13 IN THE COURT OF SHRI SANJAY SHARMA ADDITIONAL SESSIONS JUDGE - I (EAST) KARKARDOOMA COURTS : DELHI SC No. 72/2009 Unique Case ID No. 02402R0687412007 FIR No. 388/2007 PS Mandawali Under Section 307/186/353/34 IPC State Versus Zafar etc.
1. Zafar S/o Zakir
2. Kashid @ Raju S/o Makinuddin ORDER ON THE QUANTUM OF SENTENCE :
The convicts namely Zafar and Kashid @ Raju Ali were convicted for the offences punishable under Section 186/353/307/34 IPC, vide judgment dt. 08.9.2011.
2. I have heard Shri Ashok Kumar Ld. Addl. PP for State and Shri AK Johri - Advocate for both the convicts, on the quantum of sentence.
FIR No. 388/2007 11 of 13
3. It was submitted on behalf of the State that the convicts have been held guilty for deterring a police official on duty from performing his functions and not only that they even attempted to commit his murder by firing upon him and thus, they are of desperate nature and deserve no leniency.
4. On the other hand, it was submitted on behalf of the convicts that they are young persons with small children and family to support. It is further pleaded that the convicts are victims of circumstances and have been falsely implicated in this case. It was also pointed out that no injury was caused to anyone. Hence, they prayed for mercy.
5. I have considered the aggravating & mitigating circumstances as presented before me.
6. It is a matter of record that no injury was caused to the complainant. Though the charge u/s 307 IPC stands proved against the accused but they are liable for punishment only under the first part. The convicts had already undergone incarceration for a period of about two months. Hence, in view of the same as also in view of the submissions made by them, they deserve leniency.
FIR No. 388/2007 12 of 13
7. Accordingly, convicts are hereby sentenced to undergo Imprisonment already undergone by them for the offences punishable under Section 186 IPC & Section 353 IPC read with Section 34 IPC.
The convicts are further sentenced to Rigorous Imprisonment for a period of three years each, for the offence punishable u/s 307 IPC read with Section 34 IPC and are further sentenced to pay a fine of Rs. 1,000/ each for the said offence, failing which they shall further undergo Simple Imprisonment for fifteen days each.
All the sentences shall run concurrently. Benefit of Section 428 Cr. PC be extended to the convicts.
A copy of judgment and order on sentence be given to each of the convict free of cost.
File be consigned to Record Room.
ANNOUNCED IN OPEN COURT ON 9th day of September 2011 (SANJAY SHARMA) ADDL. SESSIONS JUDGE(EAST) I KARKARDOOMA COURTS : DELHI FIR No. 388/2007 13 of 13