Sirajuddin vs State(Nct Of Delhi)
2010 Latest Caselaw 3951 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                  Judgment reserved on: August 20, 2010
                                  Judgment delivered on: August 26, 2010

+      CRIMINAL APPEAL NO.783/2008

       ABDUL HAMID                                          ....APPELLANT
               Through:                     Mr. S.S.Hora, Advocate

                             Versus

       STATE (GOVT. OF NCT OF DELHI)        .....RESPONDENT
               Through:     Mr. Pawan Bahl, APP

                                           WITH

       CRIMINAL APPEAL NO. 1031/2008

       SIRAJUDDIN                                            ....APPELLANT
               Through:                     Mr. A.K.Srivastava, Advocate

                             Versus

       STATE (NCT OF DELHI)                                ....RESPONDENT
               Through:                     Mr. Pawan Bahl, APP

                                           WITH

       CRIMINAL APPEAL NO. 424/2010 & CRL.M.B.NO.533/10

       FURKAN ALI @ SAGIR                                  ....APPELLANT
               Through:                     Ms. Nandita Rao, Advocate/Amicus

                             Versus

       STATE (NCT) OF DELHI                                 .....RESPONDENT
               Through:                     Mr. Pawan Bahl, APP


        CORAM:
        HON'BLE MR. JUSTICE AJIT BHARIHOKE

1.     Whether Reporters of local papers
       may be allowed to see the judgment?


Crl.A.Nos.783/2008, 1031/2008 & 424/2010                             Page 1 of 12
 2.      To be referred to the Reporter or not ?
3.      Whether the judgment should be
        reported in Digest ?

AJIT BHARIHOKE, J.

1. Appellants Abdul Hamid, Sirajuddin and Furkan Ali @ Sagir have

preferred the above appeals against their conviction for the offences

punishable under Sections 399/402 IPC and Section 25 of the Arms Act,

in terms of the judgment of Additional Sessions Judge dated 26 th

August, 2008 as also the consequent order of sentence dated 30th

August, 2008.

2. Briefly stated, case of the prosecution is that on 23rd September,

2002, ASI Mukut Lal (PW3) was on patrol duty in the area along with

other police officials. While on patrol duty, at around 09:00 pm, he

received a secret information that 5-6 boys, who had assembled near

public toilets behind Red-Cross Hospital were planning and preparing to

commit dacoity. On this, ASI Mukut Lal organized a raiding party and

requested some passersby to join as witnesses, but none of them

obliged. Thus, without wasting time, he directed Constable Rambir

(PW9), who was in civil dress to go near those boys and try to overhear

their conversation. Constable Rambir (PW9) was also directed that if

he finds that those boys are planning and preparing to commit dacoity,

he should give signal to the raiding party by placing his hand on his

head. Constable Rambir (PW9) accompanied by the informer, thus

proceeded towards the spot and overheard the conversation between

the appellants and their co-accused, which revealed that they were

planning to commit dacoity in a blue line bus with a view to rob the

passengers. On this, Constable Rambir (PW9) gave the pre-arranged

signal to the raid party and the raid party immediately rushed to the

spot and apprehended the appellants and their co-accused. On being

searched, one country made pistol .315 Bore and two live cartridges

were recovered from the possession of the accused Israr, one

'buttondar' knife each was recovered from the accused Shahid @

Babloo, Sirajuddin and Furkan Ali @ Sagir. ASI Mukut Lal prepared a

'rukka' (Ex.PW3/A), detailing the above facts and sent it to the police

station through Constable Hem Prakash, on basis of which formal FIR

under Sections 399/402 IPC and Section 25 of the Arms Act was

registered against the appellants and their co-accused.

3. The investigation of the case was handed over to SI Raj Kumar,

who reached at the spot. He prepared the rough site plan of the spot.

He also prepared the rough sketches of the pistol as well as knives

recovered from the possession of respective accused persons, sealed

those weapons in separate 'pullandas' and took them into the

possession vide seizure memos. He also arrested the appellants and

their co-accused. After completion of formalities of investigation, SI Raj

Kumar filed challan against the appellants and their co-accused.

4. In the first instance, the appellants were charged for the offences

punishable under Sections 399/402 IPC. However, their co-accused

Israr was charged for the aforesaid offences as well as offence under

Section 25 of the Arms Act. Israr pleaded guilty. He was therefore

convicted and sentenced vide order dated 24th May, 2003.

5. During the pendency of trial, an application was moved by the

learned APP with the request for framing of charges under Section 25

of the Arms Act against the appellants Abdul Hamid, Sirajuddin, Furkan

Ali as well as co-accused Babloo @ Shahid and they were charged

accordingly. The appellants pleaded not guilty to the charge under

Sections 399/402 IPC as well as the charge under Section 25 of the

Arms Act and claimed to be tried.

6. In order to bring home the guilt of the appellants, prosecution has

examined 15 witnesses in all. Case of the prosecution is essentially

based upon the testimony of the police officials who were the members

of the raid party.

7. PW3 ASI Mukut Lal was in-charge of the raid party. He has

deposed that while on patrol duty near Apsara Border, at around 09:00

p.m., he received a secret information that on a platform ('chabutra')

behind the Red Cross Hospital near the toilets, 5-6 boys were planning

to commit dacoity in some blue line bus. On this information, he

organized a raiding party comprising of the police staff. He requested

some public persons to join the raid proceedings but none agreed.

Since Constable Rambir (PW9) was in civil dress, he was directed to go

along with the informer near said 'chabutra' and hear the conversation

of those boys. Constable Rambir (PW9) was directed to give signal to

the raid party by raising his hand if the correctness of secret

information was confirmed from the conversation of those boys. At

about 09:40 p.m., Constable Rambir (PW9) gave the pre-arranged

signal and on this, the raid party surrounded those boys and

apprehended the appellants as well as their co-accused persons Israr

and Babloo @ Shahid. He stated that on search of appellant Abdul

Hamid, one 'katta' with two live cartridges were recovered. Accused

Babloo @ Shahid and Israr were also found in possession of 'buttondar'

knives and the appellants Sirajuddin and Furkan Ali, who were

apprehended by Head Constable Rakesh with the help of Constable

Sushant and Constable Amarpal were also found in possession of a

'buttondar' knife each. He further deposed that Constable Rambir

(PW9) told him that he over-heard appellant Abdul Hamid telling his co-

accused persons that they would rob the passengers of blue line bus

and for that purpose, Israr would point the knife on bus driver to force

him to keep on driving the bus without stopping. Co-accused Shahid

and appellant Furkan Ali would man the front and rear gates of the bus

and the appellants Abdul Hamid and Sirajuddin would loot the cash and

jewellery from the passengers on the point of knife and 'katta' and

after looting the passengers, they would force the driver to stop the

bus at a deserted place and fled away. ASI Mukut Lal also stated that

he recorded all the facts in the 'rukka' (Ex.PW3/A) and sent it to the

police station for the registration of the case. He further deposed

about the formalities of the investigation conducted by SI Raj Kumar at

the spot.

8. PW5 Constable Jai Karan, PW6 Constable Surinder, PW7 Head

Constable Raj Pal and PW9 Constable Rambir are the other members of

the raiding party. They have also deposed to the similar effect.

Constable Rambir (PW9) has also stated that he was asked to go along

with the informer near the appellants and overhear their conversation

and if their conversation confirmed the correctness of the secret

information, he was required to give pre-arranged signal to raid party.

He stated in his examination that on hearing the conversation of those

boys, he gave the pre-arranged signal to the raid party and in the

cross-examination, he clarified that he heard Abdul Hamid saying to his

co-accused that they would ride a blue line bus. Israr will take care of

the driver on the point of knife and tell him to continue driving the bus.

Shahid @ Babloo will man the front gate and Furkan would man the

rear gate of the bus and Sirajuddin and Abdul Hamid would snatch the

valuables from the passengers.

9. The appellants, when examined under Section 313 Cr.P.C.,

denied the prosecution evidence in toto. They claimed that that they

have been falsely implicated in this case. No witness in defence has

been examined.

10. Learned Additional Sessions Judge relying upon the evidence of

the police witnesses has found the appellants guilty of the offences

punishable under Section 399/402 IPC as well as Section 25 of the

Arms Act.

11. Learned Mr. S.S.Hora, Advocate appearing on behalf of appellant

Abdul Hamid, learned Mr. A.K. Srivastava, Advocate appearing on

behalf of appellant Sirajuddin and learned Ms. Nandita Rao, Amicus

Curiae appearing on behalf of appellant Furkan Ali have argued on

almost similar lines. Their main challenge to the impugned judgment is

that the prosecution case is highly unreliable. It is argued that if the

prosecution case is to be believed, the informer intimated ASI Mukut

Lal (PW3) that 5-6 persons were planning to commit robbery in a blue

line bus at about 9:00 pm on 23.09.2002 and Constable Rambir (PW9)

who was sent by ASI Mukut Lal along with the informer to overhear the

conversation of the appellants heard their conversation about planning

and gave signal to the raiding party at about 9:40 pm. This implies

that the appellants, who were armed as per the prosecution case with

knives and a 'katta', kept on discussing their plan for almost 40

minutes to ensure the arrival of police and overhear their conversation.

Learned counsels contended that this story is highly unnatural to be

believed and leaves a scope for doubt. It is contended that aforesaid

doubt against the prosecution story is further compounded by the fact

that ASI Mukut Lal (PW3) who was in-charge of raiding party, did not

bother to join any independent witnesses in the raid party despite of

the fact that the appellants are stated to have been apprehended from

a place within about 600 mtrs from a residential locality and admittedly

public persons were available near the spot. It is also argued that as

per the story of the prosecution, the informer was sent along with

Constable Rambir (PW9) to overhear the conversation of the appellants

from which it can be safely inferred that ASI Mukut Lal was not

concerned about hiding the identity of informer from the appellants

and as such, non-production of informer, who could be termed as an

independent witness, is also a reason to suspect the prosecution case.

Thus, it is urged on behalf of the appellants that prosecution has failed

to prove their guilt beyond reasonable doubt and they are entitled to at

least the benefit of doubt.

12. On the other hand learned APP has argued in support of the

impugned judgment. He has contended that from the testimony of

PW9 Rambir it is established beyond doubt that the appellants and

their co-accused, who were found in possession of 'buttondar' knives

and 'katta' respectively, were discussing their plan to commit dacoity

in a blue line bus. His version finds corroboration from the other

witnesses of the raiding party and merely because there is a gap of 40

minutes between the secret information and overhearing of

conversation of the appellants by Constable, the prosecution case

cannot be thrown away. As regards non-joining of public witnesses,

learned APP submitted that it has come in evidence in the testimony of

ASI Mukut Lal (PW3) as well as other witnesses that after the receipt of

the secret information public witnesses were requested to join the raid

party, but none of them agreed. Thus, it is established that the

Investigating Officer did make an effort to join independent witnesses

to the raid; as such, absence of public witnesses cannot be taken as a

reason to disbelieve the version of police witnesses which is otherwise

reliable.

13. I have carefully considered the rival contentions and perusal the

material on record.

14. On perusal of the statement of PW3 ASI Mukut Lal and 'rukka'

Ex.PW3/A, which formed basis for registration of the case, it transpires

that ASI Mukut Lal received secret information at 9:00 pm, that five or

six boys were planning to rob a bus behind the Red Cross building near

the toilets. It is also evident from the testimony of PW3 as well as facts

narrated in the 'rukka' Ex.PW3/A that Constable Rambir along with the

informer was sent to said spot with the direction to overhear the

conversation between those boys at 9:30 pm and Constable Rambir

was also directed to give signal if those boys were found planning

dacoity and the signal was given by Constable Rambir at 9:40 pm. If

this version is to be believed, then as per the case of prosecution, the

appellants and their co-accused continued to plan the dacoity at the

spot behind the Red Cross building for almost 40 minutes. This story

appears to be unnatural for the reason that as per the statement of the

prosecution witnesses, all the appellants as well as their co-accused

persons were armed with 'buttondar' knives and 'katta' respectively

and if they actually wanted to rob a bus, it is highly improbable that

they would have waited there for more than half an hour for the arrival

of the police and catch them red-handed. This circumstance raises a

doubt against the correctness of prosecution version. Aforesaid doubt

is further compounded by the fact that the prosecution case is based

upon the testimony of police witnesses only. As per the site plan

Ex.PW3/D, the place where the appellants were allegedly planning the

robbery was near a residential colony. Therefore, it can be safely

inferred that public witnesses were easily available to the Investigating

Officer. The explanation given for non-joining of public witnesses by

ASI Mukut Lal is that he requested some passersby but they did not

agree. This explanation of the Investigating Officer is not convincing.

If the Investigating Officer was actually serious about joining the

independent witnesses, he was expected to go to the nearby

residential houses or to the Red Cross building, Dilshad Garden to join

some independent witness to the raid party instead of asking just the

said passersby to join the raid. Further story of the Investigating

Officer that he received secret information is also suspect for the

reason that as per the Investigating Officer ASI Mukut Lal (PW3),

informer was sent along with Constable Rambir (PW9) to overhear the

conversation of the appellants and the co-accused. This story is not

probable because such a course of action had a potential to reveal the

identity of the informer to the appellants and put him at risk. If the

Investigating Officer ASI Mukut Lal was not so keen to keep identity of

the informer under wraps, then there should have been no hesitation

on the part of the prosecution to produce the informer as a witness to

support the prosecution story.

15. The doubt against the prosecution case is further compounded by

the fact that SI Raj Kumar, to whom the investigation of this case was

entrusted after the registration of the case has stated that he left the

Police Station for the spot at 10:30 pm and reached there within 20

minutes. He has also stated that he completed the formalities of

investigation under the street light at the spot and the police party left

the spot at 1:00 am. If this version is to be believed, then the

Investigating Officer had reached the Police Station along with the

knives and country made pistols as well as cartridges seized from the

appellants and their co-accused at the Police Station on 24th

September, 2002 after 1:00 am. The arrest memos of the appellants

Abdul Hamid Ex.PW3/E, Sirajuddin Ex.PW12/F and Furkan Ali

Ex.PW12/G indicate that they were arrested at the spot at 1:30 am on

24.09.2002. Thus, it is apparent that the Investigating Officer reached

at the Police Station along with the appellants and the seized weapons

on 24.09.2002 after 1:30 am. This is belied by the record of the

Malkhana register Ex.PW10/A regarding deposit of the case property by

SI Raj Kumar in the malkhana of Police Station. Perusal of the

malkhana register entry No.3588, Ex-PW-10/A reveals that the case

property pertaining to the instant case FIR No.349/02 dated 23.09.2002

under Section 399/402 IPC and Section 25 of the Arms Act was

deposited in the malkhana by SI Raj Kumar on 23.09.2002. Even as

per the ocular testimony of PW-10 H.C. Ravinder Kumar, who was

moharrir malkhana P.S. Seema Puri, case property was deposited by

the Investigating Officer at malkhana on 23.09.2002. It is beyond

comprehension as to how the case property got to be deposited in the

malkhana on 23.09.2002 when as per the testimony of the

Investigating Officer, he reached at the Police Station along with the

weapons recovered from the appellants on 24.09.2002 after 1:30 am.

This contradiction in the prosecution story clinches the issue and raises

a strong doubt against the correctness of the prosecution story and

entitles the appellants to benefit of doubt.

16. The result of above discussion is that, I find myself unable to

sustain the impugned judgment of learned Additional Sessions Judge.

All the three appeals are, therefore, allowed and the appellants are

acquitted of the charge under Sections 399/402 and Section 25 of the

Arms Act, giving them benefit of doubt.

17. The appellants are in jail. They be released forthwith, if not

required in any other case.

18. Appeals are disposed of accordingly.

(AJIT BHARIHOKE) JUDGE

AUGUST 26, 2010 akb/pst