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2017 Supreme(Del) 1670
IN THE HIGH COURT OF DELHI AT NEW DELHI
MUKTA GUPTA, J.
Gulfam – Appellant
Versus
State NCT of Delhi – Respondent
CRL.A. 524 of 2016, 1726, 1744 of 2014, 10, 172, 466, 887, 443 of 2015, 712 of 2016
Decided On : 25-05-2017
For the Appellant :Mr. K. Singhal, Ms. Vani Singhal, Mr. Sachin Agarwal and Mr. Ajay Kumar, Advocates
For the Respondent: Ms. Meenakshi Chauhan, APP with SI Manoj, PS Kanjhawala
Headnote:
The court upheld the conviction of appellants Asif, Wasim, Kailash, and Sita Ram for offenses punishable under Sections 307/34 IPC, 353/34 IPC, Sections 3 and 4 of the PDPP Act, and Section 8 read with Section 13 of the DACP Act. However, the court acquitted appellants Shahbuddin, Gulfam, Rajesh @ Putiya, Siraj, Rizwan, and Bholu due to insufficient evidence.
Fact of the Case:
On May 14, 2010, a police team received information about a group of criminals involved in cow slaughtering. The team intercepted a pickup van carrying slaughtered cows and apprehended six accused at the spot. During the investigation, the accused disclosed the names of other accomplices who escaped. The prosecution examined nine eyewitnesses, including police officers and a secret informer, to prove the incident, arrest of the accused, and their disclosure statements. The accused were charged with offenses under Sections 307/34 IPC (attempt to murder), 353/34 IPC (assault or criminal force to deter public servant from discharge of his duty), Sections 3 and 4 of the PDPP Act (Prevention of Damage to Public Property Act), and Section 8 read with Section 13 of the DACP Act (Delhi Agriculture Cattle Preservation Act).
Finding of the Court:
The court held that the prosecution had proved beyond reasonable doubt that the occupants of the pickup van, including appellants Asif, Wasim, Kailash, and Sita Ram, had committed offenses punishable under Sections 307/34 IPC, 353/34 IPC, Sections 3 and 4 of the PDPP Act, and Section 8 read with Section 13 of the DACP Act. The court found that the accused had caused damage to public property by pelting stones at the police gypsy, and that they were in possession of the flesh of slaughtered agriculture cattle. However, the court acquitted appellants Shahbuddin, Gulfam, Rajesh @ Putiya, Siraj, Rizwan, and Bholu due to lack of sufficient evidence linking them to the incident.
Issues: 1. Whether the prosecution had proved beyond reasonable doubt that the appellants had committed the offenses charged with. 2. Whether the identification of the appellants by the witnesses was reliable.
Ratio Decidendi: 1. The court held that the prosecution had proved beyond reasonable doubt that appellants Asif, Wasim, Kailash, and Sita Ram had committed offenses punishable under Sections 307/34 IPC, 353/34 IPC, Sections 3 and 4 of the PDPP Act, and Section 8 read with Section 13 of the DACP Act. The court relied on the consistent testimonies of the eyewitnesses, the seizure of weapons and other incriminating articles from the pickup van, and the disclosure statements of the accused. 2. The court held that the identification of appellants Asif, Wasim, Kailash, and Sita Ram by the eyewitnesses was reliable. The court noted that the witnesses had a clear view of the accused at the time of the incident and that their identification was consistent.
Final Decision: The court upheld the conviction of appellants Asif, Wasim, Kailash, and Sita Ram for offenses punishable under Sections 307/34 IPC, 353/34 IPC, Sections 3 and 4 of the PDPP Act, and Section 8 read with Section 13 of the DACP Act. The court acquitted appellants Shahbuddin, Gulfam, Rajesh @ Putiya, Siraj, Rizwan, and Bholu due to insufficient evidence.
1. Appellants Gulfam, Shahbuddin, Rajesh @ Putiya, Bholu, Wasim, Siraj, Asif, Rizwan, Sita Ram and Kailash have been convicted for offences punishable under Sections 353/34 IPC, 307/34 IPC, 429/34 IPC, Sections 3 and 4 of the Prevention of Damage to the Public Property Act, 1984 (in short ‘PDPP Act’) and Section 8 punishable under Section 13 of the Delhi Agriculture Cattle Preservation Act, 1994 (in short ‘DACP Act’) read with Section 34 IPC. Asif has also been held guilty for offence punishable under Sections 25/27 Arms Act vide impugned judgment dated 1st October, 2014 which has been challenged in the present appeals besides the order on sentence dated 29th October, 2014.
2. Learned counsel for the appellants Gulfam, Wasim, Siraj, Sita Ram and Kailash, Mr. K. Singhal, in Crl. Appeal Nos. 524/2016, 172/2015, 466/2015, 443/2015 respectively submits that the conviction of the appellants is based on confessional statements of the accused and co-accused. Further prosecution witnesses were examined in a hurry, statements of the ten accused were recorded on 9th July, 2014 and arguments were heard on 20th August, 2014 and 10th September, 2014. Thereafter, the learned Trial Court proceeded to examine CW-1 Inspector Sudesh Kumar on 23rd September, 2014, the then SHO, Vijay Vihar and part of the raiding party. On the statement of this witness the entire prosecution case has been based, though this witness was not cited as a prosecution witness. Conviction of the appellants is based on conjectures and surmises. Though charge for offence punishable under Sections 307/34 IPC was framed for firing however, the learned Trial Court convicted the appellants for offence punishable under Sections 307/34 IPC for pelting stones on the police vehicle. In any case the sentence of imprisonment for ten years awarded for offence punishable under Sections 307/34 IPC merely on the allegations of pelting stones on the Police Gypsy is highly excessive. The damage to the public property was not proved by mechanical inspection. No crime team was called at the spot. On the basis of the photographs, negatives whereof were not proved, the learned Trial Court held that there was a bullet mark on the police gypsy.
3. CW-1 is an unreliable witness as he went beyond the prosecution case to say that Bholu was also present at the spot. Without any mechanical inspection merely on the basis of photographs, that too, without any negatives, conviction for offence punishable under Sections 3 and 4 of the PDPP Act cannot be maintained. Further the sentence of five years rigorous imprisonment on this count is also highly excessive. The appellants have been convicted for offence punishable under Sections 353/34 IPC in a mechanical manner without there being any evidence on this count.
4. Despite the fact that the pickup van containing meat was deposited in the malkhana, as per PW-11 Constable Jai Prakash, the same pickup van loaded with meat was taken to Ghazipur for destroying the meat. In his deposition he has given the number of the vehicle to be the same as that deposited in the malkhana. The only appellants arrested at the spot were Wasim, Kailash, Sita Ram and Asif. Rest of the appellants were not apprehended at the spot and no test identification parade (TIP) was got conducted. Dock identification of the accused for the first time in the Court cannot be relied upon in the absence of the TIP specially in a case where the witnesses had a fleeting glimpse of the accused even as per their version.
5. No proper expert opinion was proved to show that the meat allegedly found in the vehicle belonged to that of cows. Moreover, a bare perusal of the photographs, even if relied upon, would reveal that there was no place for ten assailants to stand in the vehicle with the same already loaded with meat. Though there is no evidence that any of the appellants killed the cows they have been convicted for the offence punishable under Sections 429/34 IPC and awarded rigorous im
