GULFAM Vs. STATE NCT OF DELHI

JUDGEMENT

(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 1 st 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 9 th 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.