TAZIR AHMED Vs. STATE OF NCT OF DELHI

JUDGEMENT

(1.) By the present appeal, Tazir Ahmed challenges the impugned judgment dated 4th May, 2016 convicting him and Jainul, the co-accused for the offence punishable under Section 489C IPC in FIR No. 262/2006 registered at PS Pandav Nagar and the order on sentence dated 6th May, 2016 directing him to undergo rigorous imprisonment for a period of four years and to pay a fine of Rs. 20,000/- and in default to undergo rigorous imprisonment for a period of six months for the offence punishable under Section 489C IPC. Since no appeal has been preferred by Jainul, this Court is only concerned with the appeal of Tazir Ahmed. Further co-accused Shamim Ahmad and Gulzar Ahmad were declared proclaimed offenders during trial and Noor Alam was acquitted by the learned Trial Court.

(2.) Learned counsel for the appellant contends that Ct. Naresh (PW-3), who is one of the recovery witnesses, admitted in his cross-examination that he did not witness the recovery as he remained seated in the car all the time and did not go to the tea stall. No public witness has been examined even though it was a crowded place and the same has been admitted by SI Harpal Singh (PW-6) in his cross-examination that some other persons were also taking tea at that time. Recovery memo Ex.PW-3/C was signed by Ct. Naresh though he was sitting in the car. Since there is absence of mens rea, offence punishable under Section 489C IPC is not made out. To buttress this argument, reliance is placed upon the decision of this Court reported as 2013 Cri L.J. 3032 Raghubir Singh v. State of Delhi.

(3.) Per contra, Learned APP for the State submits that non-joining of public witnesses cannot be fatal to the prosecution case. Testimony of police witnesses cannot be discarded. Lastly, Anil (PW-1), who made the call to the police in a way, is a public witness thus the learned Trial Court rightly convicted the appellant based on the prosecution evidence.