Delhi High Court
Sarfaraj Ahmed & Anr. vs State on 1 July, 2009
Author: Mool Chand Garg
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ Crl.App. 585/2007
% Date of decision: 01.07.2009
1. SARFARAJ AHMED.
2. RAFIQ AHMED ... APPELLANTS
Through: Mr. Shahid Ali, adv.
Versus
STATE ...RESPONDENT
Through: Mr. Navin Sharma, APP
CORAM:
HON'BLE MR. JUSTICE MOOL CHAND GARG
1. Whether the Reporters of local papers may be allowed to
see the judgment? NO
2. To be referred to Reporter or not? NO
3. Whether the judgment should be reported in the Digest? YES
: MOOL CHAND GARG, J.(Oral)
1. In this case appellants along with others were sent for trial
in connection with FIR No.743/1997 registered at P.S. Seemapuri,
Delhi under Sections 392/394 read with Section 34 IPC where
following allegations were made against accused persons:
"bayan kiya ki main pata wala par rehta hoon. Route
No.214, Bus No.DL-1P-7465 par driver hoon. Aaj
23.10.1997 ko mai sawari utarkar Seemapuri Chowk ke
pas gaadi modkar DTC depot ke saamne se waapis
Fatehpuri jaane ke liye Shahid Nagar stand par bas roka
tha ki itne me waqt karib 5:30 baje chaar ladke aaye aur
unme ek ladka jiska naam wa pata ab dariyaft par
Sarfaraz Ahmed s/o Akhtar Ali, R/o F 15, Jama Masjid
Purani Seemapuri, Delhi ne bas ke agle gate se chadhte
hi bas ki chhavi nikal le aur mere jeb se kul paise jo karib
Rs.2800/- cash bus ka paisa tha nikal liya aur doosra
larka jo mota sa hai ne mujhe aakar pakad liya jiska nam
pata Iqbal Ahmed s/o Abdul Latif, R/o H.N.14-15, Jama
Masjid, Old Seemapuri, Delhi maloom hua tatha teesra
ladka Rafiq Ahmed, S/o Sh. Babu Khan R/o 469. Old
Crl.App.585/2007 Page 1 of 4
Seemapuri, jiska naam pata ab maloom dariyaft par hua
hai, conductor Farjuddin, S/o Sh. Jiauddin, pata uprokt ke
saath bhid gaya aur paisa chheenne ki koshish kar raha
tha tatha ek ladka aur bhi tha jo conductor ke saath
paisa chhenen me tha aur conductor ko ghoonso se
mara tatha wah bus me se bhaag gaya. Iqbal wa
Sarfaraj ne mujhe mukka wa ghoonso se khoob maara
jisse mere naak par dahine aankh par wa baayin aankh
ke neeche chot lagi hai. Maine aur helper tatha
conductor ne teen ladko ko pakad liya, ek ladka bhaag
gaya. Humne teenon ko pakadkar seemapuri chowk par
bus me lekar aaye aur police ke hawali kar diya jinko
lekar thaana aaye. Mujhe police ne GTB Hospital bheja
jo meri doctori hue. Ye chaaro ladke ne mere saath
maar pit karke mera paisa chheena hai. Inke khilaaf
kanooni karwai ki jae. Chautha ladka ka hulia is prakar
hai, umar karib 25 saal, kad karib 5 fit, rang saanwla,
jism mota, jo mauka se bhaag gaya. Bayan sun liya thik
hai.
2. The learned ASJ framed charges against the accused
persons under Section 392/394 of the IPC but sentenced them to
undergo RI for three years each and to pay a fine of Rs.1000/-
each for offence under Section 392 IPC and in default to undergo
RI for two months each and further to under go RI for four years
each and to pay a fine of Rs.2,000/- each for offence under
Section 394 IPC and in default to undergo RI for four months
each.
3. This order has been assailed before this Court by way of this
appeal filed under Section 374 Cr.P.C.
4. The appellants are in jail for the last more than three years.
5. It was the case of the prosecution that all the three persons
along with one other person, namely, Azaz Ahmed a sum of
Rs.2800/- from Shamshad, the driver of the said bus No.DL 1P
7465 plied on route No.214 and in this process also caused
physical injury to him for which Shamshad was also examined in
the hospital. Accordingly, the appellants were apprehended and
Crl.App.585/2007 Page 2 of 4
were taken to the police station where they were arrested after
the registration of the FIR. Thereafter the challan was filed and
prosecution witnesses were examined. None of the eye
witnesses, namely, Shamshad (PW8), Intezar (PW9), Fazrudding
(PW10) have supported the prosecution as they did not identify
the appellants as the accused persons.
6. However, ASI Ombir Singh and Head Constable Som Dutt
came forward to support the prosecution by alleging that they
also saw the incident from outside while posted in a police picket
at Chowk, Seemapuri, Delhi. ASI Ombir Singh in his deposition
stated as under:
"On 23.10.1997, I was posted in PS Seemapuri. On that
day, I was deputed for picket duty along with Ct. Som
Dutt from 4:00 pm to 10:00 pm at chowk Seemapuri,
Delhi. At about 5:30 pm, a blue line bus bearing
registration No. DL1P-7465 was coming from the side of
Seemapuri, which was being plied on route No.214. I
saw three persons assaulting driver and conductor of the
said bus, at front gate of the bus. I reaced the said bus
and inquired from the driver, namely, Shamshad as to
what the matter was. Shamshad told that a sum of
Rs.2800/- were removed from his pocket by four
persons, out of whom Azaz had run away along with the
money. I brought the offenders as well as victims down
from the bus. I took the offenders as well as the victims
to PS seemapuri and handed over to them to the duty
officer. Accused Iqbal, Sarfaraz and Rafique are the
persons, who were brought down from the bus and
handed over to the duty officer by me. Witness had
correctly identified accused Iqbal and Sarfraz but
wrongly identified accused Aizaz as Rafique. Thereafter,
I cam back to my duties at Chowk Seemapuri.
At about 9:30 pm, I was summoned in the PS by D.K.
Singh ASI and was jointed in the investigation. Accused
persons were arrested in my presence and their personal
search memos were prepared in my presence, which are
Ex.PW2/A, Ex.PW2/B and Ex.PW2/C respectively. I could
not identify accused Rafique, since long period of 10
years had passed.
7. This shows that he is not a witness to the crime but has
been simply added as a witness by the police to support their
Crl.App.585/2007 Page 3 of 4
case. Head Constable Som Dutt was a subordinate of ASI Ombir
Singh and therefore no credence can be given to his testimony.
8. In these circumstances, the judgement of the learned ASJ
cannot be sustained. Consequently, the impugned order of
conviction as also the order on sentence are set aside. The
appellants, if not wanted in any other case, be released from jail.
9. The appeal is disposed of.
10. A copy of the order be sent to the Jail Superintendent.
11. LCR be sent back forthwith.
MOOL CHAND GARG, J.
JULY 01, 2009
anb
