Mohd. Kamar vs The State Of Nct Of Delhi
2010 Latest Caselaw 3671 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

+      Crl. Appeal No. 962/2009 & Crl. Appeal No. 963/2009

%                                             Decided on: 9th August, 2010

MOHD. KAMAR                                               ..... Appellant

                          Through: Mr. Deepak Vohra, Advocate

                     Versus

THE STATE OF NCT OF DELHI              ..... Respondent
                  Through: Mr.U.L. Watwani, Advocate

                              WITH
Crl. Appeal. No. 963/2009

MOHD. ASHRAF @ GOLU                    ..... Appellant
                 Through: Mr. Deepak Vohra, Advocate

                     Versus


THE STATE OF NCT OF DELHI                     ..... Respondent
                  Through: Mr. U.L. Watwani, Advocate

       CORAM:
       HON'BLE MR. JUSTICE A.K. PATHAK

       1.Whether the Reporters of local papers
         may be allowed to see the judgment?              Not Necessary

       2.To be referred to Reporter or not?               No

       3.Whether the judgment should be reported          No
         in the Digest?


Crl. Appl 962/2009                                              Page 1 of 13
 A.K. PATHAK, J. (ORAL)

1. Both the above noted appeals, arise out of the same

incident, FIR and judgment, thus, are being disposed of together.

2. Appellants have been convicted under Sections

186/353/308/34 IPC as also under Sections 25 and 27 of the

Arms Act by the learned Additional Sessions Judge, New Delhi

and sentenced to undergo rigorous imprisonment for three

months under Section 186 IPC; rigorous imprisonment for one

year under Section 353 IPC; rigorous imprisonment for one year

under Section 308 IPC; rigorous imprisonment for one year

under Section 25 Arms Act and rigorous imprisonment for three

years under Section 27 Arms Act. Appellants have also been

saddled with fine of Rs.3,000/- each and in default of payment of

fine to undergo simple imprisonment for four months. All the

sentences have been directed to run concurrently. Benefit of

Section 428 Cr.P.C. has also been given to the appellants.

3. In brief, prosecution case is that SI Balbir Singh of Special

Staff with ASI Gyanender Singh, Head Constable Rajesh, Head

Constable Shyamveer, Head Constable Ramkishan, Head

Constable Manoj, Constable Mukesh and Constable Rajbir were

on patroling duty in their official vehicle no. DL1 E 4065 driven

by Head Constable Premjeet on 11th May 2008 at about 10.30

a.m. When they reached near bus terminal Lado Sarai a secret

informer approached SI Balbir Singh and informed that the

Appellants, who were involved in a murder case, would be going

from Badrapur to Mehrauli via M. B. Road on a stolen motorcycle

at about 11 am. This information was passed on to the

Inspector, Special Staff who instructed SI Balbir Singh to do the

needful to apprehend the Appellants. SI Balbir Singh requested

four or five passersby to join the investigation but they declined.

Accordingly, raiding party of aforesaid police officials was

constituted which took position at the T-point Lado Sarai. At

about 11 AM Appellants were seen coming on a black colour

motocycle from the Badarpur side. On the pointing of secret

informer, SI Balbir Singh gave signal to stop the motorcycle.

Instead of stopping the motorcycle Appellants increased the

speed of their motorcycle at which Head Constable Premjeet

blocked their way by diagonally parking the official vehicle on the

middle of the road. At this, Appellants stopped the motorcycle

and started running towards the jungle. ASI Gyanender Singh

and Constable Rajbir chased Appellant Mohd. Kamar who fired

towards them twice. These police officials dodged themselves and

succeeded in apprehending Mohd. Kamar with a pistol in his

hand. Live cartridges were also recovered from his possession.

Ashraf was given a chase by the Head Constable Shyambeer

Singh and SI Balbir Singh. He also fired at the police officials

but was apprehended. From his possession one country made

pistol with live cartridges was recovered. Appellants disclosed

their names after they were apprehended.

4. Local police was informed. SI Dilip Kumar (I.O.) along with

Head Constable Devender and Constable Vikram reached at the

spot and took over the investigation. Both the appellants i.e.

Ashraf and Kamar were handed over to SI Balbir Singh (I.O.) who

arrested them after registration of the FIR. Statement of SI Balbir

Singh was recorded pursuant thereof FIR No. 400/08 under

Sections 307/353/186/34 IPC and 25/27 of the Arms Act was

registered at the police station Malviya Nagar, New Delhi. Pistol,

revolver and cartridges, recovered from the Appellants and the

empty shells recovered from the spot were sealed in separate

Pulandas. Later on the case property was deposited in the

Malkhana. Subsequently, it was sent to Forensic Science

Laboratory (FSL) and its report was obtained, according to which,

pistol as well as revolver were found in working condition. The

empty shells recovered from the spot were found to had been

fired from the aforesaid pistol and revolver.

5. Charges under Sections 186/353/307/34 IPC and 27 of

the Arms Act were framed on 12th January, 2009 to which

Appellants pleaded not guilty and claimed trial.

6. Prosecution has examined thirteen witnesses to prove its

story. SI Balbir Singh, ASI Gyanender Singh, Constable Rajbir

and Head Constable Premjeet, who were members of the raiding

party, were examined as PW2, PW7, PW10 and PW11

respectively. SI Dilip Kumar (IO) was examined as PW13. Senior

Scientific Assistant (Ballistic) namely Punit Puri was examined as

PW9. Head constable Devender Singh and Constable Vikram,

who were with the IO during the investigation, were examined as

PW6 and PW8 respectively. Additional DCP Ms. Chhaya, who had

granted the sanction under Section 39 of the Arms Act, was

examined as PW3. Head Constable Charanjit Singh was

examined as PW1. ACP K S Bhatnagar was examined as PW5 to

prove the application under Section 195 of the Code of Criminal

Procedure. Constable Dinesh, who had taken the two sealed

parcels from the malkhana and deposited the same in the FSL,

Rohini, was examined as PW12.

7. After prosecution closed evidence, statements of Appellants

under Section 313 Cr.P.C. were recorded wherein entire

incriminating material, which had come on record, was put to

them. The case of Appellant was that of simple denial.

Appellants also lead evidence in their defence. Mohd. Kamar

examined his wife Nisha as DW1. Similarly, Mohd. Ashraf

examined his wife Shashi as DW2. Both these witnesses deposed

that on 10th August, 2008 they had come to India Gate along

with their families when three police officials came there and

picked up their husbands and had taken them to Police Station

in a van. Subsequently, their husbands were falsely implicated

in this case.

8. Learned Additional Sessions Judge appreciated the

evidence adduced by the parties and came to the conclusion that

prosecution had succeeded in proving its story. For arriving at

this conclusion learned trial court found the depositions of the

members of the raiding party namely SI Balbir Singh (PW2), ASI

Gyanender Singh (PW10) with Rajbeer (PW7) and Head Constable

Premjeet (PW11) to be trustworthy and reliable. It was concluded

that these witnesses had supported each other on material

points. No material discrepancy could be noticed in their

statements and from their statements prosecution had succeeded

in proving that on receipt of secret information, raiding party was

constituted by SI Balbir Singh on 11 th August, 2008 comprising

of ASI Gyanender Singh, Constable Rajbeer, Head Constable

Premjeet and other police officials named in the FIR; the raiding

party took position at the T-point near the bus terminal Lado

Sarai when at about 11 pm Appellants were seen coming from

Badarpur side on a motorcycle; on the pointing of secret informer

SI Balbir Singh gave signal to the Appellants to stop the

motorcycle but instead of stopping the motorcycle Appellants

attempted to flee away; after Head Constable Premjeet blocked

their way by parking the official vehicle diagonally on the middle

of the road Appellants stopped the motorcycle and ran away

towards the jungle; ASI Gyanender Singh and Constable Rajbir

chased Appellant Kamar at which he fired towards them twice;

undeterred by this Constable Rajbir apprehended him with the

revolver in his hand. Similarly, Head Constable Shyambeer Singh

chased Mohd. Ashraf, who also fired at him but by saving himself

he apprehended the Appellant Ashraf with a pistol in his hand;

live cartridges were also recovered from them. As per the

Forensic Report, revolver as well as pistol was found in working

condition and it was found that the empty shells recovered from

the spot were fired from the revolver and the pistol so recovered.

Sanction under Section 39 of the Arms Act for prosecution of the

Appellants under the relevant provisions of Arms Act was duly

proved by the PW3. Thus, it was concluded that Appellants had

committed offences punishable under Sections 307/353/186/34

IPC and 25/27 of Arms Act.

9. I have heard Mr. Deepak Vohra, Advocate for the

Appellants, APP for the State and have perused the Trial Court

record more particularly, the testimonies of material witnesses

i.e. raiding party, Investigating Officer, Additional Deputy

Commissioner of Police, Sanctioning Authority and Senior

Scientific Assistant (Ballistic). I find their depositions to be

trustworthy and reliable and in my view their version has been

rightly accepted by the learned trial court. SI Balbir Singh was

heading the raiding party. He has fully supported the

prosecution case. He has deposed that on 11 th May 2008 he was

present near the Bus Terminal Lado Sarai at about 10.30 pm

along with other police officials of the special staff when a secret

informer informed him that two boys, who were involved in a

murder case, would be going from Badarpur to Mehrauli. Raiding

party was constituted. At about 11 am Appellants were seen on a

motorcycle coming from Badarpur side. On the pointing of secret

informer he gave signal to the Appellants to stop the motorcycle.

Instead of stopping the motorcycle they increased the speed.

Head Constable Premjeet blocked their way by diagonally parking

the official vehicle on the middle of the road. Finding that they

had been cornered Appellants started running towards the

jungle. Mohd. Kamar was chased by ASI Gyanender and

Constable Rajbir at which he fired towards them by a revolver

twice. But somehow these police officials could escape injuries.

After great efforts Rajbir succeeded in apprehending Kamar with

a revolver. Appellant Ashraf, who was driving the motorcycle, was

chased by Head Constable Shyambir. He also fired from a

country made pistol towards Head Constable Shyambir but was

ultimately apprehended. He informed local police. PW13 ASI Dilip

Kumar took over the investigation and recorded his statement

and got the FIR registered. Thereafter, Appellants were arrested.

Country made pistol, cartridges and revolver were sealed in

separate pulandas. His this statement has been duly supported

by the PW7 Constable Rajbeer, PW10 ASI Gyanender and PW11

Head Constable Premjeet. All these witnesses have corroborated

each other with regard to the incident. In my view, their

testimony is sufficient enough to prove the incident and the

culpability of the Appellants. As per PW9, Punit Puri, Senior

Scientific Assistant (Ballistic), country made pistol and the

revolver were found in working condition. Empty shells

recovered from the spot were also found to had been fired from

the country made pistol and the revolver. This fact corroborates

the statements of PW2, PW10, PW7 and PW11, the manner in

which incident took place. PW3 Ms. Chhaya has proved the

sanction under Section 39 for prosecution of the appellant under

the Arms Act.

10. Defence taken by the Appellants has rightly not been

accepted. Firstly, because the same has not been corroborated by

any independent witness. Secondly, DW1 and DW2 being

interested witnesses cannot be preferred as against the

prosecution witness against whom no malafide or bias has been

alleged. That apart, DW1 and DW2 have not produced anything

on record to show that immediately after the Appellants were so

picked up by the police officials any protest was lodged before

any authority.

11. I find no force in the contentions of the learned counsel for

the Appellants that the prosecution story is suspicious due to the

material discrepancies in the testimonies of the members of the

raiding party as regard to the place of incident. PW2 had

deposed that all the documents were prepared at the spot while

sitting in the official vehicle. As against this, as per the PW7

writing work was done while sitting on the pavement near the

bus stand; while PW8 has deposed that it was done while sitting

on the pavement near a nala, inasmuch as, no nala has been

shown in the site plan. According to the learned counsel different

versions given by these witnesses as to the place where writing

work was done is sufficient enough to disbelieve them. Counsel

for the Appellants next contended that as per PW2, he remained

at the spot till 4/5 pm as against this PW11 has deposed that he

drove back the vehicle along with other police officials at 2 pm

i.e. soon after the Investigating Officer reached the spot, while

PW7 has deposed that the police team remained at the spot for

about 30 minutes; meaning thereby police party left at 11.30 am.

He has contended that all these three witnesses have given

different timings of their departure from the spot which by itself

creates a serious doubt about their versions. Not only this,

PW10 and PW11 have also failed to give correct number of the

official vehicle. As per the PW10, it was a Tata Mini Bus bearing

no.DL1LE 4065; whereas according to PW11 it was a tempo

traveller bearing no.DL1E 4065. I do not find above

discrepancies, as pointed out by the learned counsel, to be

material contradictions so as to discard their testimony with

regard to the apprehension of the Appellants. So far as vehicle

number is concerned PW10 and PW11 have correctly spelled out

the same to be 4065. So far as the place of incident is concerned

PW2, PW7 and PW8 have categorically deposed that it was near

the bus stand Lado Sarai where nakabandi was done at T-point.

Their deposition is consistent in this regard. Merely because

PW2 has deposed that writing work was done while sitting in the

vehicle; whereas PW7 and PW8 have deposed that writing work

was done on sitting on the pavement will not be sufficient to

disregard their testimony as a whole. There is every possibility of

such minor discrepancies creeping in their statement more so

when their statements in the Court were recorded after more

than one year of the incident.

12. For the foregoing reasons, I do not find the view taken by

the learned trial court to be perverse or suffering with material

irregularity or being inconsistent with the evidence available on

record. I also do not find the sentence awarded by learned

Additional Sessions Judge to be on higher side. Accordingly, both

the Appeals are dismissed.

A.K. PATHAK, J.

August 09, 2010 vld