Delhi District Court
State vs . 1. Hanan S/O Mohd. Hussain on 1 June, 2012
IN THE COURT OF SH. AJAY KUMAR JAIN, LD. ADDL.SESSIONS
JUDGE03, SE: NEW DELHI
Sessions Case No. 27/10
Computer ID No. 02403R0001182009
State Vs. 1. Hanan S/o Mohd. Hussain
R/o E3744, Jhuggi JJ Colony,
Bawana, Delhi,
2. Kayyum S/o Jabbar
(Proclaimed Offender)
3. Badshah S/o Shri Abdul Majid
(Proclaimed Offender)
FIR No : 412/08
P.S. : Okhla
U/s. : 186/353/307/34 IPC & 25/27/54/59 Arms Act
DATE OF INSTITUTION : 21.09.2010 (Initial date of
institution 03.01.2009)
JUDGMENT RESERVED ON : 31.05.2012
DATE OF DECISION : 01.06.2012
JUDGMENT:
1. Prosecution case in brief that at around 6:00 p.m. on 18/09/2008 Ct. Kaushal informed ASI Sumer Singh about secret information that one notorious criminal Badshah alongwith his two associates will come around at 8:00 p.m. near Khatta at ESI Hospital with intention to commit some offence. He further apprised that if raid be conducted then accused State vs. Badshah etc., SC 27/10 Page no. 1 Of 15 alongwith associates could be apprehended alongwith illegal weapons. The said information communicated by ASI Sumer Singh to Inspector Jai Bhagwan and ACP. Thereafter raiding party was prepared in supervision of Inspector Jai Bhagwan. Inspector Jai Bhagwan along with other staff i.e, ASI Sumer Singh, HC Nand Kishor, Ct. Kaushal, Ct. Pradeep Kumar, Ct. Ashok, Ct. Narender, Ct. Sushil and Ct. Rajesh and Ct. Nihal, and secret informer went to spot from office in three private cars at around 6:30 p.m. and reached ESI Hospital red light. At the spot ASI Sumer Singh and Inspector Jai Bhagwan asked 78 public persons to join the raid but all refused to join the raid and thereafter without wasting time, raiding party took positions 50 mtrs. from ESI Hospital and some staffs was kept in all three cars and parked at the other side. At around 8:50 p.m. three boys came near bus stand and on pointing out by informer police party moved forward to apprehend them. Further, on seeing police party they started running and the person wearing T shirt whipped out a desi katta from his right dab and fired a round aiming at Ct. Kaushal, however bullet passed above the head of Constable and when that person tried to reload katta, Ct. Kaushal and Ct. Sushil overpowered him and ASI Sumer Singh snatch the katta from him. HC Nand Kishore apprehended another boy after chasing him for 10/15 steps and the 3rd boy was apprehended by Ct. Pradeep. On apprehension they told their names as Badshah, Hanan and Kayum. The person who fired was Badshah and on his search bullet of .315 bore was recovered and on opening of barrel of katta on pressing lever a fired round was found, on the back of both the bullets 8 MM KF was printed.
State vs. Badshah etc., SC 27/10 Page no. 2 Of 15 Thereafter sketch of bullet and katta was prepared and FSL form filled at the spot. On search, a buttondar knife was recovered from accused Mohd. Hanan, sketch of the same was prepared and the same was sealed in pulanda and another buttondar knife was also recovered from Kayum. The sketch of the same was also prepared and it was also sealed and after that handed over to HC Nand Kishore. Then rukka was sent by ASI Sumer through Ct. Kaushal for registration of case at PS Okhla and further investigation was handed over to SI Sanjay.
2. During investigation IO prepared the site plan at the instance of ASI Sumer, arrested accused after interrogating them and recorded the statement of witnesses, sent katta and bullets to FSL, Rohini. During investigation, obtained complaint U/s. 195 Cr. P. C., and on completion of investigation filed chargesheet.
3. On committal charges against all accused persons U/s. 186/353/307/34 IPC were framed and charge U/s. 27 Arms Act also framed against accused Badshah. Accused Kayyum and Mohd. Hanan were also charged U/s. 25 Arms Act. During trial accused Badshah and Kayum absconded, however accused Hanan faced trial before this court.
4. Prosecution for substantiating charge examined 12 prosecution witnesses, summary details of their depositions are as follows: Depositions of Members of Raiding Party Members
5. PW10 SI Sumer Singh deposed that on 18/09/2008 he received a secret information at around 6:00 p.m. through Ct. Kaushal regarding coming of one notorious criminal alongwith his associates with illegal weapons near State vs. Badshah etc., SC 27/10 Page no. 3 Of 15 ESI Hospital. Thereafter under the supervision of Inspector Jai Bhagwan a raiding party was prepared and he made the DD entry in the register and proceeded to the spot in three private vehicles and reached spot at around 7:20 p.m. Inspector Jai Bhagwan asked some public persons to join the raiding party however all refused and on the instruction of Inspector Jai Bhagwan put barricades 50 meters ahead of the ESI Hospital and three vehicles were parked on the other side of the road. He further deposed that at around 8:50 p.m. three boys came and stood near at service road of the ESI bus stand. One was wearing green colour Tshirt and after pointing out secret informer left the place.
6. He further deposed that thereafter the raiding party moved towards them and ask them to surrender. But person who wearing green colour Tshirt took out pistol and fired at Ct. Kaushal however somehow he manage to save himself. Accused Badshah when reloading katta then was over powered, both the other accused were also apprehended and one live bullet also recovered from the pocket of accused Badshah. One buttondar knife was recovered from Mohd. Kayum. He further deposed that he prepared rukka at around 11:25 p.m. handed over to Ct. Kaushal for registration of the case. Thereafter, SI Sanjay came to spot, prepared site plan at his instance and further conducted other proceedings. In crossexamination deposed that he did not inquire about criminal records of accused Badshah and went to the spot in three private vehicles and one private car which belongs to him, one belongs to Ct. Ashok and the third one belongs to Inspector Jai Bhagwan and at that time they were having only one govt. vehicle in their office and he do not know its number but its make is gypsy.
State vs. Badshah etc., SC 27/10 Page no. 4 Of 15 He further deposed that any chowkidar or any other person was not found outside the hospital and also do not get any person on bus stand. They tried to join public persons at red light but all refused. He further deposed that they had not informed the local police before the incident and further had not put any barricades at spot. He further deposed that they have not fired in retaliation on accused Badshah. Further, raiding party carrying pistol with them. But had not recorded the carrying of weapons in DD register of departure. He further deposed that no mobile phone were recovered from the accused and further deposed that out of nine people of the the raiding party three were on one side, three were on other side and three were on the vehicles. He himself, Ct. Kaushal, Ct. Susheel and secret informer were on one side and inside car are Jai Bhagwan, Ct. Ashok and Ct. Narender and remaining were on other side and they left the spot at around 12:30 am.
7. PW3 Ct. Pradeep Kumar also deposed on the same lines in examination in chief. In crossexamination he deposed that he do not remember the number of private cars. The car belongs to ASI Sumer Singh and do not know whether ASI Sumer Singh obtain any permission to use private vehicle. Further there is no police post or picket where the raiding party was waiting and the gate of ESI Hospital about 20/30 meter from the spot. He further deposed that he had apprehended accused Kayyum after 10/20 steps, but accused did not brandish any knife to me. In further cross examination he stated that ASI Sumer Singh and informer and Ct. Kaushal were sitting in the Santro car and he took position on the left side of the ESI Hospital but he can not tell the position of the members. He further State vs. Badshah etc., SC 27/10 Page no. 5 Of 15 deposed that accused persons came from the side of ESI Hospital and accused Kayyum did not brandish knife to him. No inquiry was made regarding the purchase of knife. IO prepared documents on the spot by sitting on floor but he can not tell what documents were prepared by the IO at the spot. Internal diameter of katta is not mentioned in sketch Ex. P1 and further denied suggestion the empty cartridge (shell) cannot be fired from said katta.
8. PW4 ASI Nand Kishore also deposed on same lines in examination in chief. In crossexamination deposed that accused persons reached the spot at around 7:00 / 7:30 p.m. Accused Hanan was apprehended near khatta/bus stand and there is no park between bus stand and khatta. They remained at the spot one and half hour. They conducted no inquiry from where accused persons procured the knife and came to office with accused persons and do not remember which accused was sitting in which vehicle. He stated that from spot they came to office with accused persons. Again said they came to PS then came to office. He deposed that he cannot tell at that time they reached the office and brought accused person in the PS in vehicle but cannot tell which accused was sitting in which vehicle.
9. PW5 Ct. Kaushal deposed that 18.09.2008 a secret informer came to the office and informed ASI Sumer Singh regarding the coming of accused Badshah alongwith his two associates near ESI Hospital, thereafter, raiding party was prepared and in three private cars they reached the spot and further deposed that in the same lines of other witnesses. In cross examination deposed that secret information was given to him thereafter he State vs. Badshah etc., SC 27/10 Page no. 6 Of 15 told the same to ASI Sumer Singh and accused reached the spot at around 7.30 p.m., and all came together on foot from ESI Hospital and accused Mohd. Hanan was apprehended from service road and not from bus stand by ASI Nand Kishore. Further deposed that they remained at the spot 1 1 ½ hours after the incident. No public person was joined at the time of seizure of knife and accused was taken from spot to the office at around 3.00 a.m. in the night.
10. PW9 HC Sushil Kumar also being member of raiding party deposed on the same lines. In cross examination stated that they reached the spot at around 7.00 p.m. and the spot is about 5060 meters from ESI Hospital and there was guard outside the gate of ESI Hospital and bullet did not injure anybody and they left the spot around 2.30 a.m., further Ct. Kaushal came to spot with FIR at around 2.00 a.m. Depositions of Other Witnesses
11. PW1 HC Het Ram registered FIR Ex. PW1/A on 18.09.2008. PW2 Sanjay Tyagi, Addl. DCP prepared complaint u/s. 195 Cr.P.C. and granted sanction u/s. 186/353/307/34 IPC and 25/27 Arms Act. PW6 Anil Yadav, proved notification regarding buttondar knives. PW7 K C Varshney exhibited FSL report which says that the recovered cartridges or bullet could be fired through the recovered katta. PW8 HC Ram Chander deposed that being MHC(M), on 18.09.2008 IO/ASI deposited three sealed pulanda/parcels and on 29.09.2008 he sent the said katta parcel to FSL through Ct. Kaushal
12. PW11 Shri Neeraj Thakur deposed that being DCP Crime & Railways State vs. Badshah etc., SC 27/10 Page no. 7 Of 15 on 05.12.2008 he accorded sanction u/s. 39 Arms Act for prosecution of accused Badshah.
13. PW12 SI Sanjay deposed that 18.09.2008 on receiving information of apprehension of some robbers he reached the spot where ASI Sumer Singh alongwith pother police officials met him and produced accused Badshah, Hanan and Kayyum alongwith two sealed pulandas containing buttondar knife in one sealed pulanda and cartridges in other sealed pulandas alongwith seizure and sketch memos. In the meanwhile Ct. Kaushal came to spot with FIR, thereafter he prepared site plan at the instance of SI Sumer Singh, further arrested accused persons and conducted their personal search. On 29.09.2008 he sent the exhibits to FSL through Ct. Kaushal.
14. In cross examination deposed that he received the information at around 11.15 p.m. and reached the spot with 10 minutes. Before he reached all the pulandas were already sealed and he tried to search the fired bullet however he cannot find it but he had not recorded this fact in his proceedings and ESI Hospital is around 100 meters from where the incident took place and accused persons were taken to Safdarjung Hospital from spot. But he do not remember at what time they reached Safdarjung hospital, however they came to their office at around 3.00 a.m. in the night.
Material Exhibits
15. Ex. PW10/A is DD no. 7 dated 18.09.2008 regarding receiving of secret information at around 6.00 p.m. received by Ct. Kaushal. Ex. PW8/A is register malkhana showing the case property is deposited by ASI Sumer State vs. Badshah etc., SC 27/10 Page no. 8 Of 15 Singh. Ex. PW10/A us rukka prepared by IO showing the time of occurrence at around 9.00 p.m. and dispatch from the spot at around 11.25 p.m. pursuant to which FIR Ex. PW1/A was registered. Ex PW10/B is the site plan of the spot showing the place of assembling of accused persons and apprehension of the accused persons, but not showing the positions of the cars and the members of raiding party. Ex. PW5/C is arrest memo of accused Badshah showing his time of arrest 12.05 a.m. Ex. PW3/C arrest memo of accused Kayyum showing his time of arrest at 12.15 a.m. and Ex. PW4/C arrest memo of accused Mohd. Hanan showing his time of arrest at 12.25 a.m. Ex. PW4/B is the seizure memo of buttondar knife recovered from the pant of accused Mohd. Hanan. Ex. PW3/B is the seizure memo of buttondar knife recovered from the pant of accused Kayyum. Ex. PW5/B is the seizure memo of katta alongwith live cartridges recovered from the pant of accused Badshah.
16. Ld. counsel for the accused submitted that the entire case of the prosecution is false and fictious, no raiding party as such prepared and further no raid was conducted. The statement of members of raiding party per se do not appears to be credible at all. Ld. counsel for the accused further submitted that as per the raiding party member accused Badshah fired one bullet, however, that bullet remained untraced and it is inconceivable if the police party also carrying the pistol then they will not retaliate in response to that. Ld. counsel for the accused submitted that accused Hanan had not fired and it is not the case of the prosecution that they shared common intention to fire at police party. As per police party State vs. Badshah etc., SC 27/10 Page no. 9 Of 15 when they tried to apprehend Badshah, he fired at them, thus only Badshah is responsible for that act and accused Hanan in any way not responsible for that act. Ld. counsel for the accused further submitted that police has not inquired about the criminal background of the accused persons, though opted to prepare such a huge raiding party because of the criminal background of the accused persons. Ld. Counsel further submitted that no public witness was joined at any point of time, even no documents of medical examination of accused persons filed which could lead some independent corroboration to the police officials versions.
17. Ld. Addl.P.P submits that the accused were apprehended at the spot red handed with illegal weapons and one of the accused on seeing the police party fired at police Ct. Kaushal, however, somehow he saved himself. The raiding party members are consistent on their statement and minor contradictions in members of raiding party is natural and prosecution has proved its case against the accused persons beyond reasonable doubt.
18. Arguments heard. Record perused.
19. The entire prosecution case is that on receiving secret information regarding reaching of accused Badshah alongwith his two associates near ESI Hospital, Ct. Kaushal informed the same to ASI Sumer, pursuant to which raiding party was prepared in the supervision of inspector Jai Bhagwan consisting of ASI Sumer Singh, HC Nand Kishore, Ct. Kaushal, Ct. Pradeep Kumar, Ct. Susheel, Ct. Rajesh, Ct. Ashok, Ct. Narender and Ct. Nihal.
20. The main raiding party member who is supervising the entire raiding party i.e, inspector Jai Bhagwan is even not made the prosecution witness in the State vs. Badshah etc., SC 27/10 Page no. 10 Of 15 present case, two other members of raiding party Ct. Narender and Ct. Ashok also not cited as prosecution witness. Further PW Ct. Rajesh and Ct. Nihal, other raiding party members are dropped by the prosecution, therefore, out of total nine members of raiding party, five members of raiding party not examined before the court.
21. As per prosecution case on receiving secret information all the raiding party members went to the spot alongwith secret informer in private car, however, it is not explained why the government vehicle is not used in such an incident. Further in DD Ex. PW/A of secret information, there is no mention of the particulars and the type of car in which the raiding party left the police station. As per the testimony of PW10 ASI Sumer Singh they reached the spot at around 7.20 p.m., thereafter inspector Jai Bhagwan asked the public persons to join the raiding party but none agreed. Thereafter, they put barricades 50 meters ahead of ESI hospital, however, no such barricades are shown in the site plan, further neither PW3, PW4, PW5 and PW9 stated about any barricades. This is a major inconsistency because the main raiding party member SI Sumer Singh stated that they put the barricades, however no other member of raiding party stated about barricades. One thing noticeable that PW10 ASI Sumer Singh in cross examination denied of putting of any barricades at the spot.
22. PW10 in examination in chief stated that they parked all the three private vehicle on the side of the road near ESI hospital and he, Ct. Kaushal and Ct. Sushil and secret informer took position on one side, inspector Jai Bhagwan, Ct. Ashok and Narender remained inside the cars and other members on the other side. However, PW4 stated that he alongwith ASI State vs. Badshah etc., SC 27/10 Page no. 11 Of 15 Sumer, Ct. Pradeep and Ct. Susheel were present at distance of 50 meters from ESI Hospital and other police officials were deputed on different position as per direction inspector Jai Bhagwan. Further, PW9 HC Sunil deposed that entire raiding party took the position ahead of ESI Hospital. All these witnesses are inconsistent over stating the position of raiding party members. PW4 ASI Nand Kishore and PW9 Sushil not stated that inspector Jai Bhagwan, Ct. Ashok and Ct. Narender remained inside the car but stated that they were altogether 50 meters ahead of ESI hospital. Even site plan do not show the position of raiding party members or vehicle parked. No photographs of the spot were also taken
23. PW3 Ct. Pradeep stated that at around 8.50 p.m., three boys came stood near khatta at ESI Hospital. However, as per site plan khatta is shown to be at a some distance from their position at point A and on opposite side of service lane. PW3 even could not tell the position of other members of raiding party. PW4 did not state that three boys came and stood near khatta however stated that they came from ESI Hospital. No other witness stated that the accused persons came from ESI Hospital. PW5 Ct. Kaushal on the other hand stated that three boys came from the service road of ESI Hospital. Thus there is inconsistency also where the accused persons were found standing and from where they have come. Some of the PWs stated that on being pointed out by secret informer, when police party ran towards the accused persons they started running, however ASI Sumer Singh warned them and also asked them to surrender but some of the raiding party members had not stated anything that accused persons were asked to surrender. Accused Badshah wearing green shirt fired at Ct.
State vs. Badshah etc., SC 27/10 Page no. 12 Of 15 Kaushal but that bullet did nto hit Ct. Kaushal, but none of the members of raiding party deposed that they in retaliation fired at accused persons, this is quite unnatural behaviour of police persons that they have not retaliated on firing by the accused Badshah. Further as per cross examination of PW3 and others, there were some shop also, but none of the public person was joined. It is inconceivable that if such firing incident occurred, then no hue and cry occurred or PCR or other local police would not reach at the spot. But nothing of this sort happened in the present case, which creates doubt over the happening of incident as alleged.
24. As per the prosecution the accused persons reached the spot at 8.50 p.m. In examination in chief, all the witnesses have stated this time. However, in cross examination PW5 Ct. Kaushal stated that all the accused persons reached the spot at around 7.30 p.m. together at the spot. This variation of time also creates a doubt over the arrival of the accused persons at the spot, further shows that all the raiding party members before testimony in the court crammed the entire facts before deposition. PW5 Ct. Kaushal stated that accused Hanan was apprehended in the service lane, however, as per site plan he shown to be apprehended from the main road.
25. As per seizure memo Ex. PW4/B and Ex. PW3/B of buttondar knives, these were sealed in the separate parcels and further the katta and other cartridges were sealed in other parcel, so there are in total three parcels prepared at the spot and those three parcels were handed over by ASI Sumer Singh to SI Sanjay, who as per prosecution case deposited the parcels in malkhana, But as per statement of PW8 HC Ram Chander, those pulandas were deposited by ASI Sumer Singh, which created doubt State vs. Badshah etc., SC 27/10 Page no. 13 Of 15 whether such pulandas were prepared at the spot and handed over by ASI Sumer Singh to SI Sanjay.
26. As per prosecution case the entire raiding party remained at the spot till 7.00 p.m. to 3.00 a.m. i.e, for about nine hours and during that time no public was joined and no local police also came to spot, neither anything was reported to the local police. However, on the contrary in cross examination PW4 & PW5 stated that they remained at spot only for 1 ½ to 2 hours after incident. Further, no efforts were made to join any shop keepers, vendors or chowkidars. Material witnesses of raidng party and even the supervisor Inspector Jai Bhagwan not examined.
27. On over all appreciation of evidence, the prosecution case is full of doubts and anamolies and no efforts were made to create any independent evidence. The incident as narrated do not appear to credible. Accused Badshah reported to be notorious criminal, however, none of the raiding party member could disclose even a single case against him, neither during investigation they inquired about his criminal background. It has also not come in evidence for what purpose, accused persons gathered at the spot. The prosecution case is inherently incredible, further appears to be all artificial. Even single circumstance do not appear to be reliable and worth consideration.
28. In view of the above discussion, prosecution miserably failed to prove its case against accused Hanan, hence, accused Hanan is granted benefit of doubt and acquitted of all charges against him. Previous bail bond of accused Hanan converted in to bail bond u/s. 437A Cr.P.C. and shall remain valid till the expiry of six months. However, prosecution is at State vs. Badshah etc., SC 27/10 Page no. 14 Of 15 liberty to reopen the case as and when accused Badshah and Kayyum, who are proclaimed offenders got arrested. File be consigned to Record Room after due compliance.
Announced in the open court (AJAY KUMAR JAIN)
on 01st June, 2012 ASJ03/SE/New Delhi
State vs. Badshah etc., SC 27/10 Page no. 15 Of 15