Crl.App.585/2007 Page 1 of 4 * 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 2 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 3 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 4 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