Delhi District Court
State vs . Shehjad @ Burai & Another on 4 January, 2019
SC/44570/2015
State Vs. Shehjad @ Burai & Another
IN THE COURT OF SHRI DEEPAK JAGOTRA,
DISTRICT & SESSIONS JUDGE, NORTH EAST DISTRICT,
KARKARDOOMA COURTS, DELHI
SC/44570/2015
CNR No.DLKA040002412013
State Versus 1. Shehjad @ Burai
S/o Jafar
R/o R200, Gali No.22,
Brahmpuri, Delhi
2. Ashfaq
S/o Hazi Akhlaq
R/o R4849, Gali No.22,
Brahmpuri, Delhi
FIR No.409/12
PS Seelampur
under Section 393/394/398 IPC
& under Section 25/27 of the Arms Act
Date of institution of case : 02042013
Date of reserving the case for Judgement : 22112018
Date of passing of Judgement : 04012019
JUDGMENT
1. This is a case filed on behalf of State whereby prosecution FIR No.409/12 PS Seelampur Page No. 1 /24 under Section 393/394/398 IPC & under Section 25/27 of the Arms Act SC/44570/2015 State Vs. Shehjad @ Burai & Another is seeking conviction of accused namely Shehjad @ Burai and Ashfaq, who along with their third unknown associate while armed with firearm attempted to commit robbery on the person of Shri Jyoti Ram Garg by snatching his bag containing money. While committing robbery accused Ashfaq fired a shot from firearm on the hand of Shri Jyoti Ram Garg, for the offences punishable under Section 393/394/398 of the Indian Penal Code (hereinafter shall be referred as "IPC") and for the offences punishable under Section 25/27 of the Arms Act against accused Shehjad @ Burai.
2. I have heard both the sides and meticulously gone through the record of the case.
3. Learned Chief Public Prosecutor for the State has submitted that prosecution has successfully proved its case beyond reasonable doubt against the accused persons and further prays that accused persons may be convicted for the offences charged against them.
4. On the other hand, it has been submitted on behalf of the FIR No.409/12 PS Seelampur Page No. 2 /24 under Section 393/394/398 IPC & under Section 25/27 of the Arms Act SC/44570/2015 State Vs. Shehjad @ Burai & Another accused persons that they have been falsely implicated in this case and the prosecution has miserably failed to prove its case beyond reasonable doubt against the accused persons and further prays for the acquittal of the accused persons.
5. The facts of the case in concise format are that on 2011 2012 at around 9 pm in front of Shop No.S41, Main Road, Brahmpuri, Delhi, accused Shehjad @ Burai and Ashfaq along with their third unknown associate while armed with firearm attempted to commit robbery on the person of Shri Jyoti Ram Garg when he was sitting in his Wagon R car by trying to snatch his bag containing money. While committing robbery, accused Ashfaq fired a shot from the firearm on the hand of Shri Jyoti Ram Garg.
6. The detailed facts of the case shall be appreciated at the relevant stages of the judgment.
7. Before proceeding further, it would be appropriate to recapitulate the sequence of events which are as under;
The present case has been committed for trial and the FIR No.409/12 PS Seelampur Page No. 3 /24 under Section 393/394/398 IPC & under Section 25/27 of the Arms Act SC/44570/2015 State Vs. Shehjad @ Burai & Another charge sheet was received by the Court on 02042013. Charge was framed against the accused persons on 02042013 for the offences punishable under Section 393/394/398 IPC and a separate charge for the offences punishable under Section 25/27 of the Arms Act was framed against accused Shehjad @ Burai. The accused persons have pleaded not guilty and claimed trial for the offences charged against them.
8. In order to prove its case, the prosecution has examined as many as 18 witnesses.
9. Statement under Section 313 Cr.P.C. of the accused persons were recorded on 20092018.
10. In their defence, no witness has been examined by the accused persons.
11. It is pointed out that the entire case shall be scrutinized and analyzed keeping an eye on the settled provisions of law and judicial precedents.
FIR No.409/12 PS Seelampur Page No. 4 /24 under Section 393/394/398 IPC & under Section 25/27 of the Arms Act SC/44570/2015 State Vs. Shehjad @ Burai & Another ANALYSIS OF PROSECUTION EVIDENCE OCCULAR EVIDENCE
12. Injured Jyoti Ram Garg has come in the witness box as PW1 and in his testimony before the Court, he has stated that on 20 112012 at about 9 pm, he along with his son had closed their shop situated at Brahmpuri and he was made to sit in their Wagon R Car by his son. He was holding a bag and his tiffin and after he sat in the car, his son went to check the locks of the shop. He has further stated that all of a sudden, three boys came near their vehicle and broke the widow pane of the vehicle and dragged him out of the vehicle while his son was checking the locks put on their shop. He has further stated that those three boys tried to snatch his bag and his son rushed to rescue him. In the meantime, some firing took place and he suffered bullet injury in his right hand. He has further stated that those three boys could not succeed in snatching the bag from him as some public persons had also gathered there. He has further stated FIR No.409/12 PS Seelampur Page No. 5 /24 under Section 393/394/398 IPC & under Section 25/27 of the Arms Act SC/44570/2015 State Vs. Shehjad @ Burai & Another that he cannot identify if the accused persons present in the Court were amongst those culprit boys.
13. PW2 Shri Ram Charan Garg has stated that on 2011 2012 at about 9 pm, he closed his shop and made his father to sit in their Wagon R car and locked the vehicle. He returned to the shop to check and verify if the locks are properly put on in the shop. He has further stated that he heard a sound of blast / pataka and when he turned around, he saw three persons grappling near their vehicle and he ran towards the vehicle. He saw those persons were trying to snatch bag from the possession of his father. He has further stated that he ran towards the accused persons and one of them had fired upon him and he fell on the ground. He then got up and ran to save himself and hid behind a pole. He saw accused persons were dragging his father towards road. In the mean time, public persons started rushing and collecting there. Accused persons then ran away. He has further stated that he found that his father had suffered gun shot injury in his hand. He has further stated that some one had called the police and FIR No.409/12 PS Seelampur Page No. 6 /24 under Section 393/394/398 IPC & under Section 25/27 of the Arms Act SC/44570/2015 State Vs. Shehjad @ Burai & Another police arrived there and removed his father to hospital. He has further stated that he could not see the assailants as it was a little dark and he cannot say if the accused persons present in the Court were amongst those culprit boys.
IDENTIFICATION OF ACCUSED PERSONS
14. Though PW4 Ct. Sandeep and PW5 SI Manish had identified the accused persons in the dock yet their identification becomes meaningless juxtaposed the testimonies of PW1 Shri Jyoti Ram Garg and PW2 Shri Ram Charan Garg, who are the eye witnesses to the entire incident.
CUMULATIVE EFFECT OF THE ENTIRE EVIDENCE
15. The incident had happened with father and son when some assailants attempted to snatch the money bag from the possession of father Shri Jyoti Ram Garg.
16. PW1 Shri Jyoti Ram Garg has testified that on 2011 2012 at about 9 pm, he along with his son had closed their shop at Brahmpuri. He was made to sit in his Wagon R car by his son and he FIR No.409/12 PS Seelampur Page No. 7 /24 under Section 393/394/398 IPC & under Section 25/27 of the Arms Act SC/44570/2015 State Vs. Shehjad @ Burai & Another went to check the locks of the shop. All of a sudden, three boys came near his car and they broke the window pane of the vehicle and dragged him out of the car. At that time, his son was checking the locks put on in their shop. Those boys tried to snatch the bag. In the mean while, his son rushed towards him for rescuing him. At that time, some firing took place and the father suffered bullet injury in his right hand being fired by one of those assailants. Public persons had also collected there. Those boys could not succeed in snatching the bag from the father and they ran away from the spot.
17. His son PW2 Shri Ram Charan Garg has also testified that when he heard gun shot, he turned around and saw three boys grappling near his car. He ran towards them. He saw that they were trying to snatch bag from the possession of his father. As he ran towards them, one of them had fired upon him and he fell on the ground. He saw accused persons were dragging his father towards the road. In the mean time, public persons started collecting there and his father also fell on the ground. On seeing public persons, those FIR No.409/12 PS Seelampur Page No. 8 /24 under Section 393/394/398 IPC & under Section 25/27 of the Arms Act SC/44570/2015 State Vs. Shehjad @ Burai & Another accused persons ran away. He saw his father suffered gun shot injury in his hand. Someone made a call at 100 number. He gave his statement to the police which is Ex.PW2/A.
18. In a Criminal Justice System, it is of foremost importance that identity of the accused is established beyond reasonable doubt. As a matter of fact, identification of the accused is of prime importance in a criminal case to fasten the guilt of the accused beyond reasonable doubt.
19. PW1 Shri Jyoti Ram Garg in his statement has completely failed to identify the accused persons when he stated that he cannot identify if accused persons present in the Court were amongst those culprit boys.
20. Learned Additional Public Prosecutor for the State has requested to cross examine the witness on the point of identity of the accused persons which was allowed.
21. In the cross examination carried out on behalf of learned Additional Public Prosecutor for the State, PW1 Shri FIR No.409/12 PS Seelampur Page No. 9 /24 under Section 393/394/398 IPC & under Section 25/27 of the Arms Act SC/44570/2015 State Vs. Shehjad @ Burai & Another Jyoti Ram Garg has clearly stated that police did not inquire any fact from him and they did not record his statement. Further, he did not tell any such fact to the police in a statement that those three culprit boys opened fire and one bullet hit his right arm. He had not been able to observe as to what was the approximate age of those boys. He did not tell any fact that they were aged between 2025 years. He has denied the suggestion that because of fear of accused persons, he is denying to identify them. He has further denied the suggestion that because of fear and terror of accused, he is denying to identifying them as culprits involved in this case.
22. PW1 was also cross examined on behalf of accused Ashfaq and in that cross examination, he has admitted that there was no light in the area at the time of incident and it was dark and he had gone to the police station only once after four days of the incident.
23. Similarly, PW2 Shri Ram Charan Garg has also stated that he had not been able to see and look at the assailants as there was little light and he could not say if two accused persons present in the FIR No.409/12 PS Seelampur Page No. 10 /24 under Section 393/394/398 IPC & under Section 25/27 of the Arms Act SC/44570/2015 State Vs. Shehjad @ Burai & Another Court were amongst those culprits involved in the incident or not.
24. Learned Additional Public Prosecutor for the State has requested to cross examine the witness on the premise that the witness is suppressing true facts which was allowed.
25. In the cross examination carried out by learned Additional Public Prosecutor for the State, PW2 Ram Charan Garg has stated that he did not tell the police in his statement that he would be able to identify the culprits if shown to him. The witness was confronted with his previous statement Ex.PW2/A where it was so recorded. Furthermore, he has stated that he had not been able to see the culprits or that on that basis, he stated in his statement that he would be able to identify the accused persons if shown to him and he had not given any such fact in his statement Ex.PW2/A providing any description of culprits by their age between 2025 years or by their clothes which they were wearing. The witness was confronted with his statement Ex.PW2/A where it was so recorded.
26. PW2 Ram Charan Garg was also cross examined on FIR No.409/12 PS Seelampur Page No. 11 /24 under Section 393/394/398 IPC & under Section 25/27 of the Arms Act SC/44570/2015 State Vs. Shehjad @ Burai & Another behalf of accused Ashfaq and in the cross examination, he had admitted that at the time of incident, there was no electricity in the area and it was quite dark. He has also admitted that because of the area being dark, he had not been able to see the boys, who were involved in the incident.
27. It is significant to note that accused Shehjad @ Burai was identified by PW2 Ram Charan Garg in TIP proceedings dt.0112 2012 Ex.PW5/C but PW1 Jyoti Ram Garg failed to identify him. At the same time, PW2 Ram Charan Garg also identified accused Ashfaq in TIP proceedings carried out on 05122012 Ex.PW5/G.
28. The factum of accused persons having been identified in TIP proceedings are set at rest when PW1 Jyoti Ram Garg has completely failed to identify them in the dock.
29. PW2 Ram Charan Garg was specifically asked a question with regard to TIP proceedings to which he replied that on 3011 2012, he was called in PS Seelampur and there, he was shown three photographs of mobile screen size and then police asked him to come FIR No.409/12 PS Seelampur Page No. 12 /24 under Section 393/394/398 IPC & under Section 25/27 of the Arms Act SC/44570/2015 State Vs. Shehjad @ Burai & Another for a TIP at Tihar Jail. He has further stated that on 01122012, he went to Tihar Jail and he saw two accused persons present today in the Court in this case amongst 8 to 10 persons there and he identified those accused on the basis of photographs of the two accused persons which he had seen in the police station.
30. Learned Additional Public Prosecutor for the State has also cross examined PW2 Ram Charan Garg on this aspect and in his cross examination, he had initially stated that he had not been able to identify the accused persons in the TIP proceedings. However, in his voluntary statement, he has stated that he had identified the accused in the TIP proceedings on 01122012 and second accused on 0512 2012 at Tihar Jail. He has denied the suggestion that he had identified the real culprits involved in the incident and not on the basis of photographs shown to him. He has also denied the suggestion that later on, he gave a statement to the police that he had identified accused Ashfaq in a TIP proceedings on 05122012 and not on the basis of photographs shown to him in the police station. He was FIR No.409/12 PS Seelampur Page No. 13 /24 under Section 393/394/398 IPC & under Section 25/27 of the Arms Act SC/44570/2015 State Vs. Shehjad @ Burai & Another confronted with his statement made under Section 161 Cr.P.C. where it was not so recorded that witness identified accused on the basis of photographs shown to him in the PS.
31. The impact of whole scenario is that the accused persons though identified in separate TIP proceedings by PW2 Ram Charan Garg, yet the same loses its credibility and credence when the witness takes a UTurn and completely failed to identify the accused persons in the Court at the first place. PW2 Ram Charan Garg has clearly stated that he has identified the accused persons on the basis of photographs shown to him in the PS prior to TIP proceedings carried out on 01122012 and 05122012.
32. There is a complete clash between the two. The identification carried out under TIP proceedings is not at all supported and corroborated by the statements of PW1 Jyoti Ram Garg and PW2 Ram Charan Garg, who are star eye witnesses for the prosecution.
33. It is a settled law that dock identification may further be corroborated and supported by TIP proceedings especially when the FIR No.409/12 PS Seelampur Page No. 14 /24 under Section 393/394/398 IPC & under Section 25/27 of the Arms Act SC/44570/2015 State Vs. Shehjad @ Burai & Another accused persons were not apprehended at the spot itself. Similarly, the TIP proceeding needs further support and corroboration in the form of identification of the accused in the Court as well. Both the witnesses have seriously dented the prosecution case as far as identification of the accused persons are concerned. The fact stated by PW2 that he was shown the photographs of the accused persons before the actual TIP proceeding at Tihar Jail receives much importance thereby demolishing the case of the prosecution at its very presence.
34. In order to completely seal the guilt of the accused persons beyond reasonable doubt, the accused persons must and shall be identified in such cases both in the dock as well as in the TIP proceeding. The prosecution in this regard has completely failed to achieve its objective.
35. With this, we now come to the point of consideration with regard to illegal use and possession of weapon of offence by the accused persons.
FIR No.409/12 PS Seelampur Page No. 15 /24 under Section 393/394/398 IPC & under Section 25/27 of the Arms Act SC/44570/2015 State Vs. Shehjad @ Burai & Another
36. Since, both PW1 Jyoti Ram Garg and PW2 Ram Charan Garg have completely failed to identify whether accused persons had fired shots at PW1 resulting into injury in his right hand, it is not fair to fasten the guilt of accused persons as regards use of illegal arm is concerned. This further narrows down the scrutiny of matter to the fact whether accused persons were in illegal possession of the weapon of offence / firearm within the meaning of Section 25 of the Arms Act.
37. At this stage, it is pointed out that any information given in the disclosure statement leading to discovery of a fact is admissible under Section 27 of the Indian Evidence Act. Reliance is placed on judgment titled as Bodhraj Vs. State reported in (2002) 8 SCC 45, wherein the Hon'ble Apex Court has been pleased to observe as under;
"The statement which is admissible under Section 27 is the information leading to discovery and the same has to be proved and not the opinion formed on it by the police officer. It is, therefore, necessary for the benefit of both the accused and the prosecution that the information given should be recorded and proved and if not so FIR No.409/12 PS Seelampur Page No. 16 /24 under Section 393/394/398 IPC & under Section 25/27 of the Arms Act SC/44570/2015 State Vs. Shehjad @ Burai & Another recorded, the exact information must be adduced through evidence. The "fact discovered" envisaged in the section embraces the place from which the object was produced, the knowledge of the accused as to it, but the information given must relate distinctly to that effect."
38. As far as accused Ashfaq is concerned, no weapon of offence was recovered at his instance pursuant to his disclosure statement which is also fortified by the statement of PW17 SI Mukesh Kumar, who was also the IO of the case when he stated that he made efforts to trace out the weapon of offence at the instance of Ashfaq but no fruitful result came out when he was arrested and gave his disclosure statement. He again made some efforts to trace out the weapon of offence at the instance of accused Ashfaq @ Bhura on 01 122012 but nothing could be recovered.
39. The natural corollary is that there was no discovery of fact in the form of weapon of offence which could have been admissible under Section 27 of the Indian Evidence Act.
40. Coming now on to the case of Shehjad @ Burai. On this FIR No.409/12 PS Seelampur Page No. 17 /24 under Section 393/394/398 IPC & under Section 25/27 of the Arms Act SC/44570/2015 State Vs. Shehjad @ Burai & Another aspect of the matter, he gave a disclosure statement to the police on 26112012 inter alia made a disclosure that he had kept a katta along with empty cartridge and live cartridge in a polythene under a neem tree near the wall of a water tank at Gautampuri.
41. Pursuant to this disclosure statement, PW4 Ct. Sandeep and PW5 SI Manish, who was also the IO of the case had formed a police team to get the weapon of offence recovered. PW4 Ct. Sandeep in his statement has stated that accused Shehjad @ Burai had disclosed that he can get recovered the country made pistol / katta near water tank, Gautampuri. Pursuant to that disclosure statement, accused took them near Gautampuri Water Tank and pointed out towards a neem tree and he took out a white colour polythene which was lying between wall of water tank and neem tree. The polythene was checked and one country made pistol/ katta along with one live cartridge was recovered. On opening of country made pistol/ katta one empty cartridge was also recovered. He has also identified the same as Ex.P1 (colly).
FIR No.409/12 PS Seelampur Page No. 18 /24 under Section 393/394/398 IPC & under Section 25/27 of the Arms Act SC/44570/2015 State Vs. Shehjad @ Burai & Another
42. PW5 SI Manish in his statement had stated that pursuant to the disclosure statement, accused Shehjad @ Burai took them to Gautampuri near water tank. There was a neem tree just near the boundary wall of water tank and from between the water tank and neem tree, accused took out a white colour polythene and on opening the same, one country made pistol/ katta along with one live cartridge was recovered and on opening the country made pistol, one empty cartridge was also recovered. He has identified the same as Ex.P1 (colly).
43. If we look at the disclosure statement made by accused Shehjad @ Burai Ex.PW4/C carefully, it transpires that he had put katta in a polythene and kept the same under the neem tree. On the other hand, PW4 Ct. Sandeep has stated that police had got recovered katta from a place between the wall of water tank and neem tree. Another version given by PW5 SI Manish is that he recovered the katta from a place between the water tank and neem tree. So, there are three different versions coming forth qua the place of recovery of FIR No.409/12 PS Seelampur Page No. 19 /24 under Section 393/394/398 IPC & under Section 25/27 of the Arms Act SC/44570/2015 State Vs. Shehjad @ Burai & Another country made pistol/ katta which are as follows;
(a). under the neem tree as disclosed by accused Shehjad @ Burai.
(b). a place between the boundary wall of water tank and a neem tree as stated by Ct. Sandeep.
(c). between water tank and neem tree as stated by SI Manish.
44. If we analyze the disclosure statement on this aspect side by side the statements of PW4 Ct. Sandeep and PW5 SI Manish, the exact place of recovery itself becomes doubtful and is under cloud.
45. In the cross examination of PW4 Ct.Sandeep, he has further reiterated that "the polythene was recovered from the place which was situated between the wall and the neem tree. The distance between the said spot and the main road was about 56 feet. It is correct that one can see from the main road at the place from where the recovery had taken place. The polythene was lying in an open place."
46. In the cross examination of PW5 SI Manish, it is also elicited as under;
FIR No.409/12 PS Seelampur Page No. 20 /24 under Section 393/394/398 IPC & under Section 25/27 of the Arms Act SC/44570/2015 State Vs. Shehjad @ Burai & Another "the polythene was recovered from an open place situated between the neem tree and boundary wall of water tank. Public persons used to pass through that road. The distance between the main road and boundary wall of water tank is about four or five feet."
47. The recovery of alleged weapon of offence i.e. katta becomes highly doubtful on the following grounds;
(i) The spot of recovery of katta is not clearly established especially in pursuance of disclosure statement.
(ii) The place of recovery is an open area. (iii) It is only 56 feet away from the main road. (iv) The place is a public thorough fare accessible to all.
48. In such a situation, it cannot be said that the place of recovery can be said to be in exclusive knowledge of accused Shehjad @ Burai being a public place.
49. In a judgment titled as State of Himachal Pradesh Vs. Jeet Singh reported in AIR 1999 SC 1293, the Hon'ble Apex Court has been pleased to observe as under;
FIR No.409/12PS Seelampur Page No. 21 /24 under Section 393/394/398 IPC & under Section 25/27 of the Arms Act SC/44570/2015 State Vs. Shehjad @ Burai & Another "If the article is buried on the main roadside or if it is concealed beneath dry leaves lying on public places or kept hidden in a public office, the article would remain out of the visibility of others in normal circumstances. Until such article is disinterred its hidden state would remain unhampered. The person who hid it alone knows where it is until he discloses that fact to any other person. Hence the crucial question is not whether the place was accessible to others or not but whether it was ordinarily visible to others. If it is not, then it is immaterial that the concealed place is accessible to others."
50. In the present case, the most crucial factor is as to why the recovery of country made pistol/ katta is not in consonance with the law for the reason that the weapon of offence was not concealed underneath the ground or was covered with the leaves of the neem tree. Moreover, it was quite visible and accessible from the road, thereby, making the recovery highly doubtful. Thus, it cannot be said by any stretch of imagination that the country made pistol/ katta Ex.P1 was recovered from the possession of accused Shehjad @ Burai FIR No.409/12 PS Seelampur Page No. 22 /24 under Section 393/394/398 IPC & under Section 25/27 of the Arms Act SC/44570/2015 State Vs. Shehjad @ Burai & Another within the ambit of Section 25 of the Arms Act.
51. In view of the foregoing reasons and discussion and considering the fact that the most important public witnesses PW1 Jyoti Ram Garg and PW2 Ram Charan Garg have not supported and corroborated the case of the prosecution, the prosecution has completely failed to prove its case beyond reasonable doubt against the accused persons Shehjad @ Burai and Ashfaq. Hence, the case put forth by the prosecution must fail and fall down.
CONCLUSION
52. Keeping in view the totality of the facts and circumstances of the case, the entire case of the prosecution crumbles down. Prosecution has completely failed to bring home the charge against accused persons Shehjad @ Burai and Ashfaq. Accused persons Shehjad @ Burai and Ashfaq stand acquitted. Their Bail Bonds are cancelled and sureties are discharged.
53. Shehjad @ Burai and Ashfaq are directed to furnish their fresh Personal Bonds in the sum of Rs.10,000/ (Ten Thousand) each FIR No.409/12 PS Seelampur Page No. 23 /24 under Section 393/394/398 IPC & under Section 25/27 of the Arms Act SC/44570/2015 State Vs. Shehjad @ Burai & Another with one surety each in the like amount which shall remain in force for a period of six months in pursuance of Section 437(A) Code of Criminal Procedure.
54. File be consigned to Record Room.
ANNOUNCED IN THE OPEN COURT Digitally signed
ON 04th JANUARY, 2019 by DEEPAK
JAGOTRA
DEEPAK Location:
KARKARDOOMA
JAGOTRA COURTS, DELHI
Date:
2019.01.04
15:36:29 +0530
(DEEPAK JAGOTRA)
DISTRICT & SESSIONS JUDGE
NORTH EAST DISTRICT
KARKARDOOMA COURTS, DELHI
FIR No.409/12
PS Seelampur Page No. 24 /24
under Section 393/394/398 IPC
& under Section 25/27 of the Arms Act