Zeeshan vs State Nct Of Delhi
2014 Latest Caselaw 675 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

%
                                            Date of Decision: 04.02.2014
+       CRL.A. 92/2010

        ZEESHAN                                          ..... Appellant
                          Through:    Counsel for the appellant.

                          Versus

        STATE NCT OF DELHI                             ..... Respondent
                       Through:      Mr Feroz Khan Ghazi, APP

CORAM:
HON'BLE MR. JUSTICE V.K.JAIN

                              JUDGMENT

V.K.JAIN, J. (Oral)

On 13.05.2013, SI Rajesh Kumar of Special Staff received a

secret information that a person named Zeeshan, who had absconded

from the custody of U.P. Police, was involved in a number of serious

offences committed in Delhi and keeps a deadly weapon with him shall

come to a DDA Park Gate, near Arya Nagar Apartment, Road No. 54A,

I.P. Extension, Patparganj between 4.00 to 4.30 PM. On receipt of the

aforesaid information, a raiding party was organized, which reached the

above-referred spot and took position there. Some passerby were

requested to join the raiding party, but no one agreed, though two of

them gave their names and addresses to the police party. At about 5.00

PM, the appellant Zeeshan was found coming from the side of Road

No.57A. On being identified by the secret informer, the police officials

started moving towards him at a slow pace and Sub-Inspector Rajesh

loudly told him that he had been surrounded by police and, therefore, he

should keep on ground the unauthorized weapon, if any, so that he may

be questioned and the information available with the police may be

verified. He was also told that the members of the police party would

show their identity cards to him. This is also the case of the prosecution

that Constable Umed Singh No. 989/E was then directed to show his

identity card to the appellant. As soon as Constable Umed Singh shown

his identity card to the appellant, he took out a country-made pistol from

the pocket of his pant and fired a shot, which just missed Constable

Umed Singh. The appellant attempted to open the barrel of his gun so as

to fill another cartridge in it, but he was over-powered and the pistol was

snatched from him. On his search, one live cartridge was recovered from

the right side pocket of pant which he was wearing. The pistol as well as

the live cartridges were seized by the police officers. The empty

cartridge was also found on the spot and was seized after it had been

duly sealed and an FIR under Section 186/353/307 of IPC and Section

25/27 of Arms Act was then registered.

2. Since the appellant pleaded not guilty to the charge. As many as

12 witnesses were examined by the prosecution. No witness, however,

was examined in defence.

3. Constable Umed Singh came in the witness box as PW-1 and

stated that on 1.05.2003, an informer came to him and informed him that

one Zeeshan, who was absconding from the custody of U.P. Police and

was involved in many cases of Delhi, will be coming to DDA Park,

Road No. 57, near Arya Apartment, I.P. Extension, Patparganj at about

4.00-4.30 PM. On receiving the information, he made SI Rajesh aware

of it and also made the informer meet him. A raiding party was then

organized and some passerby were requested to join the party, but no

one agreed though two persons, namely, Ravinder Thakur and Krishna

Kumar gave their particulars to the police officers. The police party then

reached the spot and took position there. At about 5.00 PM, on being

identified by the secret informer, they moved towards the appellant so as

to apprehend him. SI Rajesh Kumar asked him to surrender the arms and

ammunition, if any, with him. He further stated that Sub-Inspector

Rajesh directed him to show his card to the appellant. As soon as the

card was shown the appellant, he took out a country-made pistol from

the right side pocket of his pant and fired at him. He, however, was able

to escape it. The appellant was over-powered when he was trying to

load the country-made pistol with another bullet and on his search one

live cartridge was recovered from the right side pant which he was

wearing.

4. PW-5 Head Constable Swadesh Pal and PW-6 SI Rajesh Kumar

corroborated the deposition of PW-1 with respect to receipt of secret

information, organizing raiding party, requesting some passerby to join

the raiding party and none of them agreeing to join the said party. They

have also corroborated his deposition with respect to the raiding party,

taking position on the spot, the appellant coming there at about 5.00 PM

and being surrounded by the police, after he has been identified by the

informer. They have further corroborated the deposition of PW-1 with

respect to the appellant being asked to put his weapon on the ground,

Constable Umed Singh showing the identity card to him and thereupon

the appellant taking out a country-made pistol from his pant and firing at

Constable Umed Singh. They also stated that after the first bullet missed

Constable Umed Singh, the appellant was re-loading the pistol, when

they over-powered him. They have also deposed with respect to

recovery of a country-made pistol and a live cartridge from the appellant

and seizure of empty cartridge from the spot.

5. PW2, K.C. Varshseny, Sr. Scientific Officer of FSL has proved

his report Ex.PW2/A.

PW4 Head Constable Pushpender stated that on 16.07.2003, he

was posted as Assistant, MHC(M) at Police Station Mandawali and on

that date a parcel sealed with the seal of RK was handed over to him by

Constable Subhash for depositing the same with FSL, Malviya Nagar.

According to him, there was no tampering with the case property so

long as it remained in his custody.

PW11, Head Constable Hamender Singh was posted as MHC (M)

at Police Station Mandawali on 13.05.2003 and according to him on the

aforesaid date SI Rajesh came had deposited a parcel sealed with the

seal of RK with him. PW-12 SI Omvir Singh has also corroborated the

deposition of PW-11.

PW9, Shri Alok Kumar, Deputy Commissioner of Police, has

proved the sanction Ex.PW9/A granted under Section 39 of the Arms

Act, whereas PW10, Inspector Rakesh has proved the complaint under

Section 195 of Cr.P.C.

6. In his statement under Section 313 Cr.P.C., the appellant denied

the allegations against him and claimed to be innocent. According to

him, he had gone to the chemist shop to purchase medicine for his ailing

son when he was arrested and implicated in this case at the instance of

UP Police.

7. Vide impugned judgment dated 15.9.2007, the appellant was

convicted under Sections 307 & 186 of IPC as well as under Section 27

of the Arms Act. Vide Order on Sentence dated 19.09.2007, he was

sentenced to undergo RI for ten (10) years and to pay fine of Rs.5,000/-

or to undergo SI for one (1) year in default under Section 307 IPC. He

was further sentenced to undergo RI for five years and to pay a fine of

Rs 3000/ or to undergo SI for six (6) months in default under Section

under Section 27 of Arms Act. He was also sentenced to SI for three (3)

months under Section 186 of IPC. All the sentences were directed to

run concurrently.

8. In order to succeed the prosecution was required to prove (i) that

the death of Constable Umed Singh was attempted, (ii) that his death

was attempted to be caused by or in consequence of the act of the

appellant and (iii) that such act was done with the intention of causing

death or that it was done with the intention of causing such bodily

injuries as the appellant knew to be likely to cause death or were

sufficient in the ordinary course of nature to cause death.

What the court has to see is whether the act, irrespective of its result,

was done with the intention or knowledge and under the circumstances

mentioned in the section. The intention of the assailants can be gathered

from the motive for the crime, nature of weapon used, number of blows

given by him, severity of blow and the parts of the body where the

injuries are inflicted and other surrounding circumstances, if any. This

section itself provides a punishment of 10 years for doing an act which

amounts to an attempt to murder even though the act causes no hurt to

anyone, but the offender is liable to the heavier punishment of

imprisonment for life, if the injury is actually inflicted.

The intention of the appellant to cause death of Constable Umed

Singh is apparent from the fact that he did not stop at firing at one shot

and tried to re-load the pistol which obviously was intended at firing

another shot on him. Had the appellant not been over-powered, he

would have succeeded in his attempt by firing a shot which could have

proved to be fatal. If a person, despite being surrounded by police

officials has the audacity to take out a gun, fire at a police official and

on missing the target, tries to re-load the gun with a view to fire another

shot, his obvious intention would be to kill the police officials who were

trying to apprehend him. Therefore, the offence punishable under

Section 307 of IPC is made out against the appellant.

9. The appellant also obstructed police officials, who were seeking

to verify the information available with them and apprehend him in case

he was found to be the person absconding from the custody of U.P.

Police and involved in a number of cases in Delhi, in discharge of their

official duties by firing at Head Constable Umed Singh. Therefore, he

has rightly been convicted under Section 186 IPC. Since he used an

unauthorised weapon at a public place and he has also rightly been

convicted under Section 27 of the Arms Act. In fact, the learned

counsel for the appellant when confronted with the overwhelming

evidence against the appellant submits that no fault can be found with

the conviction of the appellant and on instruction she only requests for

taking a lenient view.

10. In the facts & circumstances of the case, the appellant is

sentenced to undergo RI for five (5) years and to pay fine of Rs.1,000/-

or to undergo SI for fifteen (15) days in default under Section 307 IPC.

The appellant is also sentenced to undergo RI for three (3) years and to

pay fine of Rs.1,000/- or to undergo SI for fifteen (15) days in default to

pay fine under Section 27 of the Arms Act. The appellant is further

sentenced to undergo SI for three (3) months under Section 186 IPC.

The sentences shall run concurrently. Since the appellant has already

spent more than five (5) years in custody, as would be evident from the

nominal roll, he need not be committed to prison, subject to his

depositing fine of Rs.2,000/-, within four weeks, unless already

deposited.

The appeal stands disposed of accordingly.

LCR be sent back along with a copy of this judgment.

FEBRUARY 04, 2014                                        V.K. JAIN, J.
BG