Delhi District Court
State vs Nazim S/O Salim on 3 May, 2012
IN THE COURT OF SH. RAMESH KUMAR - II,
ADDITIONAL SESSIONS JUDGE - 01 : North East /
KARKARDOOMA COURTS: DELHI.
Case ID Number. 02402R0205012011
Sessions Case No. 39/2011
Assigned to Sessions. 04.08.2011
Arguments heard on 25.04.2012
Date of Judgment 03.05.2012
FIR No. 252/2005
State Vs Nazim s/o Salim
r/o A Block, Sri Ram Colony, Khajuri
Khas, Delhi.
Police Station Khajuri Khas
Under Section 399/402 IPC
JUDGEMENT
1. Station House Officer of Police Station Khajuri Khas had filed a supplementary challan vide FIR No. 252/2005 dated 28.06.2005 u/s 399/402 IPC & 25/54/57 Arms Act for the prosecution of accused Nazim in the court of ld. Metropolitan Magistrate and Trial Court after compliance of section 207 Cr. P.C. committed this case for trial before this court. During the trial, accused Nazim and Nasir had been declared P.O. by ld. MM vide order dated 07.06.2007.
S.C. No.39/2011 State Vs. Nazim 1/20
2. In brief, facts of the case are that on 28.06.2005, Inspector Satinder Mohan had received a secret information that five persons would assemble at 3:00 p.m. in jungle of PTC, Wazirabad, Delhi, for planning to commit dacoity along with illicit weapons. On this information a raiding team was constituted by Inspector Satendra Mohan comprising himself, HC Som Pal, HC Ram Kishan, Ct. Karamveer, Ct. Vijender, Ct. Prem Chand and Ct. Omvir and reached near Tatiksha Public School where Inspector Satender Mohan had directed raiding party to take their positions behind the kikar trees. At around 3:15 p.m. five persons assembled in the Jungle of PTC, Wazirabad, Delhi. HC Sompal was deputed along with informer to hear the conversation of those boys, at 3:40 p.m. HC Sompal and informer gave signal to the police party after hearing the conversation that accused persons were planning to commit daocity in a factory at Karawal Nagar. On receiving signal police party challenged accused persons and four other accused persons were apprehended at the spot and one succeeded to escape from there.
3. Inspector Satinder Mohan had apprehended accused Nazim (P.O.) and from his possession a cycle chain was recovered, HC Sompal had apprehended accused Nisar (P.O.) and a buttondar knife was recovered from him, Ct. Prem Chand and Ct. Ombir had apprehended accused Narul S.C. No.39/2011 State Vs. Nazim 2/20 Alvi and a loaded countrymade pistol and live cartridge was recovered from him and Ct. Karamveer and Ct. Virender had apprehended accused Firoz and a buttondar knife was recovered from him. Inspector Satinder Mohan had prepared a rukka Ex.PW12/A and got registered FIR No.252/2005 Ex.PW1/A against all the accused persons. Accordingly, all the accused persons were arrested.
4. In the main case i.e. SC No.12/2009, ld. Predecessor of this court vide order dated 12.05.2010 had acquitted accused persons namely Narul Alvi @ Pappu and Firoz from the offences u/s 399/402 IPC and 25 (1B) of Arms Act by giving them benefit of doubt.
5. On 04.06.2011 accused Nazim was again arrested by HC Sahdev with the help of HC Sanjeev, HC Pradeep, Ct. Rajiv and Sachin from ABlock, Shriram Colony, Delhi and produced before concerned court of police station Khajuri Khas along with Kalandara proceeding under section 41 (1)
(c) Cr.P.C.
CHARGE:
6. On the basis of material available on record, this court vide order dated 22.09.2011 framed a charge against accused Nazim for the offences punishable u/s 399/402 IPC to which accused did not plead guilty and S.C. No.39/2011 State Vs. Nazim 3/20 claimed trial.
PROSECUTION WITNESSES:
7. In order to prove its case prosecution has examined 08 witnesses namely PW1 HC Sahdev Singh, PW2 HC Sanjeev, PW3 SI Subodh Panwar, PW4 Ct. Karamveer, PW5 HC Sompal, PW6 ASI Ram Kishan, PW7 Ct.
Virender and PW8 Inspector Satender Mohan.
8. PW1 HC Sahdev Singh. This witness has deposed that on 04.06.2011 he along with HC Sanjeev, HC Pradeep, Ct. Rajeev and Ct. Sachin had arrested accused Nazim from ABlock, Shri Ram Colony, Khajuri, Delhi as he had information that accused Nazim had been declared P.O. vide order dated 07.06.2007 passed by ld. MM of police station Khajuri Khas, Delhi in the present case. This witness has proved arrest memo of accused Nazim vide Ex.PW1/A and personal search memo vide Ex.PW1/B.
9. This witness had prepared Kalandara u/s 41 (1) (c) Cr.P.C. Ex.PW1/C against accused Nazim and recorded DD No.29B at police station to this effect vide Ex.PW1/D. S.C. No.39/2011 State Vs. Nazim 4/20
10.In his cross examination by ld. defence counsel, this witness admits that no public person from the vicinity joined arrest proceedings of accused.
11.PW2 HC Sanjeev. This is also a witness of arrest of accused Nazim. This witness was also one of the members of raiding team which had arrested accused Nazim.
12.PW3 SI Subodh Panwar. This witness had prepared supplementary chargesheet Ex.PW3/A against accused Nazim on 27.06.2011. This witness had collected copy of kalandara Ex.PW1/C.
13.PW4 Ct. Karamveer. This witness was also one of the members of raiding party. This witness has deposed that on 28.06.2005 he was posted at police station Khajuri Khas, Delhi and on that day, a raiding team was constituted under the supervision of SI Satender Mohan comprising of himself, HC Ram Kishan, HC Sompal, Ct. Virender, Ct. Prem Chand and Ct. Omvir to conduct raid in the jungle of PTC, Wazirabad, opposite to Titikasha Public School, Delhi as SI Satinder Mohan had a secret information that five dacoits would assemble there to commit dacoity and they would have illegal arms and ammunitions.
S.C. No.39/2011 State Vs. Nazim 5/20
14.This witness has further deposed that on that day at about 2:40 p.m. raiding team reached at the aforesaid spot and took possession here and there. HC Sompal was directed to hear the conversation of dacoits and to give signal for calling them after hearing the conversation of dacoits, at about 3:40 p.m. raiding team members received signal and chased five dacoits who were running here and there in the jungle. Four out of five dacoits were apprehended by raiding team whose name came into notice as Narul Alvi @ Pappu, Firoz (both have been acquitted in this case vide judgment dated 12.05.2012), Nisar @ Faizan (P.O. in this case) and Nazim. Accused Nazim was overpowered by SI Satender Mohan and one cycle chain recovered from his possession. SI Satender Mohan had prepared rukka Ex.PW2/A and got the FIR registered at police station through this witness. Thereafter, further investigation of the case was conducted by ASI Ram Kishore. In his presence I.O. ASI Ram Kishore had arrested accused Nazim vide arrest memo Ex.PW4/B and personal search memo Ex.PW3/E2. This witness has correctly identified the cycle chain Ex.P5 which was got recovered from the possession of accused Nazim.
15.In his cross examination by ld. defence counsel, this witness has deposed that one or two passersby had met them in the jungle during proceeding of this case, but none of them joined the proceeding of this case despite request of S.I. Satyender and no notice was served upon them. S.C. No.39/2011 State Vs. Nazim 6/20
16.PW5 HC Sompal. This witness was also the member of raiding team. This witness had heard the conversation of dacoits and had given signal to the other team members to overpower the dacoits. This witness had overpowered accused Nisar @ Faizan (who is P.O. in this case). This witness has deposed on the same footing as deposed by PW4.
17.PW6 ASI Ram Kishan and PW7 Ct. Virender were also the members of raiding team. These witnesses have also deposed on the same footing as deposed by PW5 and PW4.
18.PW8 Inspector Satender Mohan is the material witness being I.O. of the present case. This witness has deposed on 28.06.2005 he had received a secret information that five dacoits would assemble having arms and ammunitions in the jungle of PTC, Wazirabad, opposite Titikasha Public School, Delhi with a plan to commit dacoity. On this information a raiding team was prepared by this witness comprising himself, HC Sompal, HC Ram Kishan, Ct. Karamveer, Ct. Virender, Ct. Prem Chand and Ct. Omvir and proceeded towards jungle of PTC, Wazirabad, opposite Titikasha Public School, Delhi. This witness has deputed HC Sompal to hear the conversation of the dacoits and on confirming that accused persons were making plan to commit dacoity, HC Som Pal had given signal to raiding S.C. No.39/2011 State Vs. Nazim 7/20 team members and thereafter, accused persons namely Narul Alvi @ Pappu, Firoz, Nisar @ Faizan and Nazim were apprehended by raiding team. This witness had overpowered accused Nazim and during his search one cycle chain was recovered.
19.This witness had prepared sketches, pullandas of recovered arms and ammunitions from all accused persons and seized the same vide seizure memo Ex.PW2/B. This witness had filled up FSL form.
20.This witness had prepared rukka Ex.PW2/A and got FIR of this case registered at police station through Ct. Karamveer. Further, investigation of this case was conducted by ASI Ram Kishore.
21.This witness has further deposed that ASI Ram Kishore had prepared site plan Ex.PW7/A at his instance. This witness had identified cycle chain Ex.P5 which was recovered from the possession of accused Nazim.
22.This witness was cross examined by Ld. Legal Aid Counsel. In his cross examination, this witness has deposed that cycle chain had been recovered from the right pocket of wearing pant of accused Nazim. This witness has deposed that he had asked 4 - 5 public persons to join the raiding team but none became ready for the same.
S.C. No.39/2011 State Vs. Nazim 8/20 STATEMENT OF ACCUSED U/S 313 CR.P.C.:
23.After prosecution evidence, statement u/s 313 Cr. P.C. of accused Nazim was recorded, accused denied all the allegations, circumstances and evidences put to him. Accused has deposed that he has been falsely implicated in the present case after lifting from Khajuri Pusta and nothing had been recovered from his possession but I.O. had planted the cycle chain upon him and I.O. had obtained his signature on papers at police station forcibly. Accused had not preferred to lead D.E. ARGUMENTS
24.Ld. APP for the State argued and submitted that there are charges against accused u/s 399/402 IPC and on the complaint of SI Satinder Mohan present case was registered. Ld. APP for the State has further argued that from the possession of accused Nazim a cycle chain was recovered. Ld. APP for the state has further submitted that PW1, 2, 3, 4, 5, 6, 7 and 8 are the material/star witnesses. PW HC Sompal is the person who had heard the conversation of accused persons.
25.Ld. APP for the State has further submitted that accused Nazim was overpowered by SI Satinder Mohan.
S.C. No.39/2011 State Vs. Nazim 9/20
26.Ld. APP for the State has further submitted that witnesses of raiding party support the case of prosecution. Ld. APP for the State has further submitted that a cycle chain was recovered from accused Nazim. On these grounds, Ld. APP for the State submits that prosecution has successfully proved its case beyond reasonable doubts and Ld. APP for the State has prayed to convict the accused under the sections for which he has been charged.
27.On the other hand, Sh. Satyender Kumar, ld. Amicus Curiae for the accused argued at length and submitted that no public witness/independent witness was joined in raiding party.
28.Ld. Amicus Curiae for accused further argued that no sanction of arms under section 39 Arms Act has been obtained. Link of evidence has been missing.
29.Ld. Amicus Curiae for accused further argued that MHC(M) is being material PW has not been examined and evidence is not sufficient to hold guilty accused persons.
30.Ld. Amicus Curiae for accused further argued that no fact of dacoity has been disclosed. No particular place of proposed dacoity has been S.C. No.39/2011 State Vs. Nazim 10/20 mentioned. No status of person where dacoity was to be committed has been disclosed. Particular place and particular house for committing dacoity has not been mentioned by HC Sompal, so the allegations made by the police officials are vague.
31.Ld. Amicus Curiae for accused has further argued that case property has been planted upon him. On these grounds, Ld. Amicus Curiae for accused has prayed for acquittal of accused.
PERUSAL OF RECORD:
32.Arguments heard. Record perused. On perusal of record, it is revealed that on 28.06.2005, Inspector Satinder Mohan had received a secret information that five persons would assemble at 3:00 p.m. in PTC, Wazirabad Jungle, for planning to commit dacoity along with illicit weapons. On this information a raiding team was constituted by Inspector Satendra Mohan comprising himself, HC Som Pal, HC Ram Kishan, Ct. Karamveer, Ct. Vijender, Ct. Prem Chand and Ct. Omvir and reached near Tatiksha Public School where Inspector Satender Mohan had directed raiding party to take their positions behind the kikar trees. At around 3:15 p.m. five persons assembled in the Jungle of PTC, Wazirabad, Delhi. HC Sompal was deputed along with informer to hear the conversation of those boys, at 3:40 S.C. No.39/2011 State Vs. Nazim 11/20 p.m. HC Sompal and informer gave signal to the police party after hearing the conversation that accused pesons were planning to commit daocity in a factory at Karawal Nagar. On receiving signal police party challenged accused persons and four accused persons were apprehended at the spot and one succeeded to escape from there.
33.Inspector Satinder Mohan had apprehended accused Nazim (P.O.) and from him a cycle chain was recovered, HC Sompal had apprehended accused Nisar (P.O.) and a buttondar knife was recovered from him, Ct. Prem Chand and Ct. Ombir had apprehended accused Narul Alvi and a loaded countrymade pistol and live cartridge was recovered from him and Ct. Karamveer and Ct. Virender had apprehended accused Firoz and a buttondar knife was recovered from him. Inspector Satinder Mohan had prepared a rukka Ex.PW12/A and got registered FIR No.252/2005 Ex.PW1/A against all the accused persons. Accordingly, all the accused persons were arrested.
34.On perusal of record, it is further revealed that S.I. Satinder Mohan had taken personal search of accused Nazim and recovered one cycle chain from his right side pocket of wearing pant, same was converted into a parcel and sealed with the seal of R.K. and seized vide seizure memo Ex.PW2/B. S.C. No.39/2011 State Vs. Nazim 12/20
35.On perusal of record, it is further revealed that accused Nazim was arrested vide arrest memo Ex.PW2/D and personal search memo Ex.PW3/E2.
36.On perusal of record, it is further revealed that in the main case, ld. Predecessor of this court vide order dated 12.05.2010 had acquitted accused persons namely Narul Alvi @ Pappu and Firoz from the offences u/s 399/402 IPC and 25 (1B) of Arms Act by giving them benefit of doubt.
37.On perusal of record, it is further revealed that on 04.06.2011 accused Nazim was again arrested vide arrest memo Ex.PW1/A by HC Sahdev with the help of HC Sanjeev, HC Pradeep, Ct. Rajiv and Sachin from ABlock, Shriram Colony, Delhi and his personal search was conducted vide personal search memo Ex.PW1/B and produced him before the concerned court of police station Khajuri Khas along with Kalandara proceeding.
38.Further, on perusal of record, it is also revealed that PWSI Satinder Mohan has admitted in his cross examination that 45 passersby requested to join and they had refused to disclose their name and to join the investigation. It is very surprising neither this witness serve any notice to those persons neither obtained their names and addresses.
S.C. No.39/2011 State Vs. Nazim 13/20
39.On perusal of record, it is further revealed that I.O./ASI Ram Kishan had prepared site plan on the pointing out of Inspector Satinder Mohan Ex.PW7/A.
40.Since in the present case as per prosecution case only it has been stated that all accused persons had gathered at a place for the purpose of preparation and on hearing the conversation, they were apprehended by police officials. However, accused persons had not acted in pursuance of their preparation if any. Merely on the basis of gathering of persons and having apprehension of making any preparation by those persons to commit a dacoity is not sufficient. It would be relevant to discuss section 399/402 IPC which are as under :
Section 402 IPC: Assembling for purpose of committing dacoity. Whoever, at any time after the passing of this act, shall be one of five or more persons assembled for the purpose of committing dacoity shall be punished with rigorous imprisonment for a term which may extend to 7 years and shall also be liable to fine. Theme of this section shows that :
Where there is assembly of five or more persons who have assembled for committing dacoity and accused must be member of that assembly.
Section 399 IPC: Making preparation to commit dacoity. Whoever makes any preparation for committing dacoity, shall be punished with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine.S.C. No.39/2011 State Vs. Nazim 14/20
41.As in the present case first Investigating Officer/PW Inspector Satinder Mohan who had formed a raiding party and had apprehended the accused persons with the help of other members. On the complaint of Inspector Satinder Mohan the present case was registered.
42.What is punishable under section 399 IPC is making of any preparation for committing any dacoity. Section 402 IPC in fact is like a preventive section under which punishment is imposed if there is an assemblage of five or more persons for the purpose of committing dacoity. It is clear that these two sections are confined to preparation for commission of dacoity and has no reference to other offence.
43.Attending circumstances of this case are that accused had gathered and were apprehended while they were making conversation with each other. Undoubtedly they had not acted in pursuance to their preparation. Moreover, no sanction u/s 39 Arms Act had been obtained from competent authority to prosecute the accused persons under Arms Act and there is no independent witness to the recovery of weapons from accused persons.
44.Hon'ble Supreme Court in case titled as "Chaturi Yadav and others Vs. State of Bihar, 1979 A.I.R. (SC) 1412" has held that : S.C. No.39/2011 State Vs. Nazim 15/20
"Indian Penal Code, 1860, Sections 399 and 402 - Dacoity - Conviction and sentence - Legality of - Prosecution evidence merely showing that eight persons including appellant were found in the school premises which was quite close to the market at 1 a.m. and that some of them were armed with guns, some had cartridges and others ran away - Held, the mere fact that these persons were found at 1 a.m. did not by itself prove that they had assembled for purpose of committing dacoity or for making preparations to accomplish that object the possibility that the appellants might have collected for the purpose of murdering somebody or committing some other offence could not be safely eliminated - Appellants accused acquitted of the charges framed against them."
45.Hon'ble Patna High Court in case titled as "Gholtu Modi and etc. Vs. State of Bihar, 1986 CRL.L.J.1031 has held that :
"Evidence must be such which may plainly manifest the main charge to satisfy the concise of the court that member of assembly due to some act or acts which may lead to irresistible presumption that they had assembled for the purpose of dacoity and were making preparation for the same, but in absence of such any evidence coming forth mere assemblage and recovery do not prove charges."
46.Hon'ble Supreme Court in case titled as 'Sans Pal Singh Vs. State of Delhi 1999 Cri. L.J.19' has held that :
"Recovery of country made pistol and live cartridge from the pocket of the accused based only on evidence of police - No public witnesses, even though available, associated to witness recovery Conviction Cannot be maintained.S.C. No.39/2011 State Vs. Nazim 16/20
47.Further in case titled as 'Pawan Kumar Vs. Delhi Administration, 1989 Cri.L.J.127', Hon'ble Delhi High Court has held that large number of people were present at the time of recovery No independent witness produced and no attempt made to join independent witness Statement of official witnesses could not be relied.
"6.On the second aspect also, Miss Khanna has something to say, PW11, ASI Jagbir Singh is the person who in the company of PW 15, Kalam Singh and PW21 Kanchan Dev, HC apprehended accused Pawan Kumar and from his possession the knife (Ex.P1) was recovered. On the recovery memo, Jagbir Singh obtained the signatures of Kalam Singh and Jai Bhagwan constables. Jai Bhagwan has not been produced. Kalam Singh had to admit that at the time of the arrest and recovery of the knife, there was a lot of rush of public at busstop near Subhash Bazar. According to Jagbir Singh, he did not join any public witness in the case while according to Kalam Singh no public person was present there. It hardly stands to reason that at a place like a busstop near Subhash Bazar; there would be no person present at. A crucial time like 7.30 p.m. when there is a lot of rush of commuters for boarding the buses to their respective destinations. Admittedly, there is no impediment in believing the version of the Police officials but for that the prosecution has to lay a good foundation. At least one of them should have deposed that they tried to contact the public witnesses or that they refused to join the investigation. Her is a case where it re no efforts was made to join any public witness even though number of them were present. No plausible explanation from the side of the prosecution is forthcoming for not joining the independent witnesses in a case of a serious nature like the present one. It play be that there an apathy on the part of the general public to associate themselves with the Police raids or the recoveries but that apart, at least the I should have an earnest effort to join the independent witnesses. No attempt in this direction appears to have been made and this, by itself, is a circumstances throwing doubt on the arrest or the recovery of the knife from the person of the accused."S.C. No.39/2011 State Vs. Nazim 17/20
48.As into facts of present case and recoveries thereto no public persons is the witness either to arrest of accused persons or to recoveries. Only on the version of police officials it would be unsafe to award conviction.
49.As according to story of prosecution, it is clear on record that public persons who were present at spot but Investigating Officer has failed to make them witnesses in this case and submissions of Ld. APP for State that prosecution has proved its case beyond reasonable doubt cannot be considered. The conviction of accused cannot be solely based on the testimonies of police officials and recovery of any weapon from accused persons by police officials in absence of any public witness also cannot be considered as concrete evidence and nature of recovered articles i.e cycle chain from which it is not possible to break down the lock of any house or that which may be used in committing dacoity. To prove the recovery of any weapon, the seizure memo should have been signed by public witness. In this regard, it is clearly on record that public persons were present at the spot but Investigating Officer has failed to make them witness in this case. Moreover, complainant is Investigating Officer in present case which is fair and legal.
50.Moreover, it is highly improbable that in the era of communication technology anyone would gathered to make a preparation to commit a S.C. No.39/2011 State Vs. Nazim 18/20 dacoity if accused persons had any such intention they could have planned on mobile or through any other means of communication because during these time a rickshaw pullers are also having mobile phones. Moreover, any planned place of dacoity has also not been mentioned by I.O. in charge sheet or has been brought on record.
51.Charge u/s 174A IPC for proclaimed offender has not been proved as this court presumed proper procedure had not been followed before declaring him P.O. whereas accused had shifted his address as he had been residing on rent and procedure of publication had not been done.
52.In light of these observations and judgments and in view of the submissions and arguments, at this stage, this court is of considered view that under the facts and circumstances as discussed above and hearing the counsel for parties, this court do not find that prosecution has proved its case beyond reasonable doubt and further this court do not find any merit in the arguments of Ld. APP for State to convict the accused under section 399/402 IPC as requirement of Law have not been met out. Hence, this court acquit the accused Nazim from charges u/s 399/402 IPC by giving him benefit of doubt. He be released forthwith if not required in any other case.
S.C. No.39/2011 State Vs. Nazim 19/20
53.In compliance of section 437 Cr.P.C. accused Nazim is directed to execute bail bond in sum of Rs.20,000/ with one surety in the like amount for the period of six months.
54.File be consigned to record room.
PRONOUNCED IN THE OPEN COURT ON THIS 03.05.2012.
(RAMESH KUMARII) ASJ01/ NORTH - EAST KARKARDOOMA COURTS, DELHI S.C. No.39/2011 State Vs. Nazim 20/20