Delhi District Court
State vs Keshav Prasad @ Keshav @ K.P. Verma on 5 August, 2008
-:1:-
IN THE COURT OF SH. NARINDER KUMAR
ADDL. SESSIONS JUDGE, FAST TRACK COURTS,
ROHINI : DELHI
SC No. 151/06
Date of institution of the case: 24.02.2006
Date for reservation of Order: 5th of August, 2008
Date of Decision: 5th of August, 2008
State
Versus
1. Keshav Prasad @ Keshav @ K.P. Verma
S/o Sh. Angad Singh
R/o Village Dayal Pur,
Post Office Gokul Puri,
PS Khazuri Khas,
Delhi-110 094
2. Samar Pal
S/o Sh. Badan Singh
R/o 178A, Janta Flats,
Sarita Vihar, Delhi.
At present:
R/o 162 E, Pocket A-3,
Mayur Vihar, Phase-III,
Delhi.
FIR No. 437/1994
PS- Tilak Nagar
U/s. 186,332,353,307,411 IPC
& 27 of the Arms Act
-:2:-
JUDGMENT
1. First the Facts This is the oldest case pending in this court after its receipt by transfer on 24.02.2006. Keshav Prasad and Samar Pal, both accused, have been facing trial for offences U/s. 186, 332, 353, 307 read with Section 34 IPC on the allegations that on the night intervening 05/06.08.98 at about 12, both of them voluntarily obstructed police officials of Police Station Tilak Nagar, on Khyala Road near Keshav Pur Depot, within the jurisdiction of that police station, in discharge of their public duties, caused hurt to Constables Phool Singh, Bijender and Ashok Kumar, who were members of the police party. Both of them are also alleged to have assaulted or used criminal force to the police officials. Keshav Prasad accused is also alleged to have opened fire at the police party and thereby attempted to commit murder, in furtherance of his common intention and common intention of his co-accused Samar Pal. Keshav Prasad accused is further alleged to have used a pistol and cartridges for unlawful purposes i.e. in opening fire at the police party and thereby -:3:- made himself liable for an offence under Section 27 of the Arms Act as well.
Case of prosecution is that on 29.07.94, a businessman informed Inspector L.N. Rao, SHO of PS Tilak Nagar, that he was being extended threats telephonically by a person that in case he did not pay Rs. 50 Lac, he would be done to death. However, the business man requested the SHO to keep his name and particulars secret and that no legal action be initiated. The SHO brought this fact to the notice of ACP, Tilak Nagar and DCP (West), and as such, efforts were made to arrest the culprit. Special team was constituted. The team included SHO Inspector L.N. Rao, SI Rajinder Singh and other staff.
On 04.08.94, the aforesaid businessman once again informed the SHO that the person, who had extended him threats, alongwith another met him on 03.08.94 at Subhash Nagar Crossing, while riding in Maruti Car No. DL- 1CD-3168 and that both of them threatened him with dire consequences in case he failed to pay Rs. 50 lac by 05.08.94. He further told the SHO that the aforesaid persons further directed him to hang a red colour cloth in front of his house -:4:- that in case he was inclined to pay the requisite amount in the evening of 05.08.94, and that they would themselves make arrangement to collect the money. This time, the businessman narrated to the SHO description of the two culprits. The businessman, however, again requested the SHO not to initiate action in writing. Accordingly, rough sketch of the two culprits was got prepared with a view to apprehend them. On checking of record, available with Transport Authority, Tilak Marg, it transpired that the vehicle bearing registration No. DL-1CB-3168 was actually a Mahindra Jeep and that the Maruti Car was bearing a fake number plate.
On 05.08.94, police teams were deployed in private Maruti Cars near the house of the businessman. Team No.1 consisted of Inspector L.N. Rao, SI Rajinder Singh, HC Om Prakash, Constable Hari Bhushan and Constable Prem Chand, whereas team No. 2 consisted of HC Sunil Kumar, HC Umed Singh, Constables Bijender Singh, Phool Singh and Ashok Kumar. These teams got issued firearm and ammunition from the malkhana before being deployed at the aforesaid place. Both the teams started waiting for arrival of suspected Maruti Car. HC Dharmender -:5:- and Constable Sunil Kumar were directed to keep watch at the house of the businessman. Team No.1, headed by Inspector L.N. Rao, took position in Tilak Nagar Market, whereas team No.2 took position near the house of the businessman.
At about 11.50 p.m., team No. 2 sent wireless message to team no.1 having spotted the aforesaid Maruti Car and that the occupants of the car, on getting suspicion, had taken the car towards Janak Puri, following Najafgarh Road, and that team No. 2 was chasing the vehicle. Upon receipt of this message, team No.1 also started chasing the aforesaid vehicle. DCP , Tilak Nagar, was also informed of this message. Both the teams continued chasing the aforesaid vehicle. It was reportedly heading towards Paschim Vihar via Outer Ring Road. When the Maruti car was heading towards Khyala via Khyala Road from near Keshav Pur Deport, Inspector L.N. Rao, issued directions to team No.2 to open fire at the Maruti car. HC Umed Singh opened fire at the Maruti car, as a result whereof, the car stopped in the bushes, by the side of the road. Two persons alighted from the car and started running in different directions. -:6:-
Case of prosecution is that Keshav Prasad and Samar Pal accused were the aforesaid two persons, who alighted from the aforesaid vehicle and started running in different directions. HC Sunil and HC Umed Singh chased Samar Pal accused and apprehended him. Constables Ashok Kumar, Bijender Singh and Phool Singh chased Keshav Prasad accused, but he fired shots at these three Constables. The SHO also opened fire from his service revolver in the air. The three Constables grappled with Keshav Prasad accused and succeeded in capturing the loaded pistol from him. At that time, Kesav Prasad accused is alleged to have inflicted injuries on the person of the three Constables with the butt of the pistol and giving tooth bite. The pistol was found to be a Chinese made .30 bore pistol. It was found loaded with five live cartridges, contained in a magazine. The pistol, magazine and the cartridges were turned into parcels, sealed and then seized. Form CFSL was prepared.
Ruqqa was prepared and present case was got registered. The above named three Constables were sent to hospital and got medico legally examined. Statements of -:7:- witnesses were recorded U/s. 161 Cr.P.C.
Investigation revealed that the aforesaid car was actually bearing registration No. DL-2cD-4239 and that the same had been robbed from the area of Kossi Kalan, Mathura (U.P.), in respect whereof case FIR No. 105/94 had been registered. U.P. police got the vehicle transferred.
Sanction for prosecution of Keshav Prasad accused was obtained from DCP (West District) for prosecution for the offence under the Arms Act.
Sh. Vijay Malik, ACP, prepared complaint U/s. 195 CrPC.
Reports were received from CFSL in respect of analysis of the firearm and the ammunition.
On completion of investigation, challan was put in court.
Vide order dated 09.12.94, case came to be committed to the Hon'ble Court of Session.
2. Charge Prima facie case having been made out, charge for offences U/s. 186, 332, 353,307 read with section 34 IPC -:8:- was framed against both the accused. Charge for an offence U/s. 27 of the Arms Act was also framed against Keshav Prasad accused. Since the accused persons pleaded not guilty and claimed trial, prosecution was called upon to lead evidence.
3. Prosecution Evidence In order to prove its case, prosecution examined following 20 witnesses in addition to tendering into evidence reports Ex. PX and Ex.PY received from CFSL:
PW1 HC Om Prakash has been examined to prove recording of FIR Ex. PW1/A. PW2 Inspector Rajbir Malik, while serving as SI at PS Tilak Nagar, collected two sealed parcels and took the same to the Office of Ballistic expert, OPL, Delhi. According to him, for want of facilities at the office of Ballistic Expert , on return to the PS, he deposited the sealed parcels with the MHC(M). He also deposed to have deposited two sealed parcels at CFSL, CGO Complex, Lodi Road, in the next morning i.e. on 23.08.94.
PW3 Shyam Chawla is the registered owner of -:9:- the Maruti car No. DL-2CD-4239, who has deposed about robbery committed in respect of his car on 15.06.94, while it was being driven by his driver Rampal Singh in the area of Kossi and that a case was registered at PS Kossi, District Mathura (U.P.). He also deposed to have identified his Maruti car on reaching PS Tilak Nagar after having read in newspaper about recovery of same car.
PW4 HC Abhinandan is the concerned MHC(M) who deposed about deposit and discharge of the case property.
PW5 ASI Om Prakash has proved recording of FIR NO. 437/94 at PS Tilak Nagar on the basis of ruqqa received from Inspector L.N. Rao on 06.08.94 at 2.30 a.m. PW6 Constable Karan Singh has been examined to prove recording of FIR No. 46/92 Ex. PW6/A U/s. 25 of the Arms Act at PS Shakurpur.
Medical evidence is available in the statements of PW8 Dr. Hridya Narain, PW9 Dr. Nishu Dhawan and PW16 Dr. Yashpal.
PW12 Padam Singh has deposed regarding registration of Mahindra and Mahinda Jeep No. DL-1CD-3168 -:10:- with Transport Authority, Mall Road, Delhi, in the name of UCO Financers of Azad Market, Delhi.
PW13 Sh. Deepak Mishra, Joint Commissioner of Police, then DCP (West), has been examined to prove sanction Ex. PW13/A, accorded by him for prosecution of Keshav Prasad accused for the offence under the Arms Act.
PW18 Sh. Rajender Pathak was posted as Inspector at Police Station Chatta, Mathura (U.P.). He has been examined to prove recording of FIR No. 105/94 in that police station in respect of robbery of vehicle No. DL-2CD- 4239.
PW19 Sh. Vijay Malik, the then DCP, has been examined to prove complaint Ex. PW19/A. PW7 ASI Umed Singh, PW10 HC Bijender Singh, PW11 HC Phool Singh, PW14 ASI Ashok Kumar, PW15 HC Hari Bhushan, PW17 HC Prem Chand and P20 ACP Sh. L.N. Rao have deposed about the manner in which the occurrence took place and the accused persons were apprehended.
4. Defence Plea When examined U/s. 313 CrPC, the accused -:11:- persons denied all the incriminating circumstances appearing in evidence against them and claimed false implication.
Plea put forth by Keshav Prasad accused is as:
"On 31/07/1994 I was present at my house. It was Sunday. My three friends namely Ravinder, Brij Mohan and Rajbir were sitting with me. Inspector L N. Rao and his staff in civil dress came to my house and took away me and my three friends. At that time Samar Pal , my co accused was present at my house. He was teaching my children at my house. Inspector L. N. Rao took him away as well. I do not know the place where I was confined as I was taken to that place with my eyes blind folded. Police removed from my possession my driving licence. No receipt as referred to in this question was recovered from my possession.
.........I have no knowledge about the actual registration number of the aforesaid car or about registration of any such case of any such robbery.
........I have been falsely implicated by the police of PS Tilak Nagar. Police had fired shots at PS Tilak Nagar. I came to know on the 6th day that I was being confined at PS -:12:- Tilak Nagar."
Samar Pal accused came forward with the following plea:
"On 31/07/1994, at about 4 p.m., I was present at the house of my co accused. I was present there to teach his children. Police came there. Keshav Prasad accused was present there alongwith 3/4 others but I do not know the companions of Keshav Prasad. Police took me, Keshav Prasad and his 3/4 companions with eyes blind folded. We later on realised that we were being detained at PS Tilak Nagar. Ultimately , we were falsely implicated in this case."
In defence, the accused persons examined DW1 Sh. Sunil Kumar to prove that on 31.07.94 at about 3 p.m., 5/6 persons, in civil dress, came to the house of his uncle Keshav Prasad (accused), in his presence, and took away Keshav Prasad and four others present there, without informing him as to where they were being taken away. He has also been examined to prove sending of a telegram on 04.08.94 in this regard vide postal receipt Ex. DW1/A. True copy of the telegram is Ex. PWDW1/C.
5. Discussion -:13:- Occurrence is alleged to have taken place on the night intervening 5/6-08-1994 at about midnight near Keshavpur Depot of Khyala Road, within the jurisdiction of Police Station Tilak Nagar. Prior thereto on 29/07/1994, Inspector L. N. Rao is alleged to have received a verbal complaint from a businessman. The complaint was to the effect that someone was threatening him on telephone and demanding Rs.50,00,000/- (fifty lakhs). In this regard, main stay of the prosecution is on the statement of PW20 Inspector L. N. Rao.
According to PW20, on 29/07/1994, a businessman of Tilak Nagar came to him and made a verbal complaint that someone was demanding Rs.50 lakhs from him by way of extortion and threatening him with dire consequences in case the money was not paid. According to the witness, the businessman was not willing to make a written complaint. Further according to the witness, on 04/08/1994, the aforesaid businessman again contacted him and apprised him that on 03/08/1994 one person met him at Subhash Nagar Crossing, while travelling in a Maruti Car 1000 CC bearing No. DL-1CD-3168 and threatened him with -:14:- death in case he did not part with Rs.50,00,000/-. Even this time, the businessman was not willing to make a written complaint. Further according to the witness, on verification of registration number of the vehicle provided by the businessman, he found that it was not registration number of Maruti Car but it was of a jeep make Mahindra, registered in the name of UCO Financiers, 107, Fruit Market, Azad Mandi.
Prosecution has placed on record information Ex.PW20/A received from Transport Authority, on the application dated 04/08/1994 filed by the witness. Sensing gravity of the matter, the witness discussed the matter with senior officers as the businessman is stated to have told him that the person who extended him threat was to wait only upto 05/08/1994. According to PW20, the businessman had also apprised him that he (the businessman) had been directed to hang a red colour cloth outside his house to show that he was willing to pay money.
6. Was any businessman actually threatened?
So far as story of prosecution regarding receipt of information from the businessman on 29/07/1994 and -:15:- 04/08/1994 is concerned, learned defence counsel has contended that this version put forth by PW20 is highly unbelievable. Learned defence counsel has submitted that PW20 should have disclosed the name of the businessman but the same has not been disclosed, which creates doubt if any such businessman ever provided any such information of any such demand or threat to his life.
In his cross examination PW20 stated that the businessman had asked him to keep his name and particulars secret as he was afraid of the accused persons. Whenever any such information is received, it is duty of the concerned police officer to reduce the information into writing. It was not a case of secret information about some small matter. Rather the life of the businessman was in danger in case he did not make payment of Rs.50,00,000/- (fifty lakhs) as per prosecution version. Therefore, the Inspector should have reduced this information into writing and then proceeded further. It is a different matter that the Investigating Officer could maintain utmost secrecy about the information so as to avoid its disclosure to anyone before apprehension/arrest of culprits. What to say of recording of the information in any -:16:- record, PW20 has not disclosed even in the witness box name and particular of the businessman whose life was in danger because of threat on account of extortion. The explanation put forth by PW20 that the businessman asked him to keep his name and particulars secret is not satisfactory as he could disclose his name and particulars atleast in the ruqqa which led to registration of this case after arrest of the accused on the night intervening 5/6-08-1994. The fact remains that even in the ruqqa Ex.PW20/B neither name nor other particulars of said businessman who conveyed information regarding threat to his life stand recorded. Non furnishing of name and other particulars of businessman in the ruqqa adversely affects the case of prosecution and creates doubt if any such information was ever conveyed by any such businessman on 29/07/1994 and 04/08/1994 or if any such threat was extended to any such businessman or that any such unlawful demand was put forth by any culprit. Had any such verbal complaint been made by any such businessman, in the ordinary course of his duties on or after 29/07/1994 police must have taken some steps either to tape the phone calls received at the telephone of said -:17:- businessman or deployed any persons for safety and security of said businessman. Similarly, on receipt of such information from said businessman on 04/08/1994 regarding threat extended to his life on 03/08/1994, the Inspector must have taken steps on 04/08/1994 itself to provide security to said businessman for safety of his life. However, there is nothing in the statement of PW20 that he took any such step on 29/07/1994 or at any time thereafter prior to 05/08/1994. Non taking of any step in this regard once again creates doubt in the prosecution story if any such information/verbal complaint was ever conveyed/made to the Inspector.
It is in the statement of the Inspector - PW20 that he discussed the matter with his senior officers after the businessman verbally told him about threat extended to his life on 03/08/1994 and that he has been directed to make payment upto 05/08/1994. To support this version, it was for the prosecution to examine senior officers of PW20. However, no senior police officers has been examined in court to lend corroboration to the version narrated by the witness. Case of the prosecution is that both the accused persons were apprehended on the night intervening 5/6-08- -:18:- 1994. Had anyone of them extended any such threat to the life of the businessman, once they are alleged to have been so captured, the Investigating Officer should have verified and collected evidence regarding threat to the life of the businessman in this regard. The Investigating Officer should have then recorded statement of businessman, once the accused persons have been arrested. However, during investigation or after arrest of the accused persons, the Investigating Officer did not care to examine said businessman as a witness. Non examination of the businessman even after arrest of the accused persons creates doubt in the version of the prosecution regarding threat, if any, extended by any of the accused to any such businessman.
7. Constituting two police teams According to PW20, two teams were constituted on 05/08/1994. Team No. 1 constituted of the witness (PW20), SI Rajender Singh, Head Constable Om Prakash, Constable Prem Chand took position in Central market of Tilak Nagar whereas Team No. 2 constituted of Head -:19:- Constable Sunil Kumar, Head Constable Umed Singh, Constables Ashok Kumar, Bijender Singh and Phool Singh was directed to take position near the house of the businessman. In this regard, prosecution has examined PW1 SI Sunil Kumar, PW7 ASI Umed Singh, PW10 Head Constable Bijender, PW11 Head Constable Phool Singh, PW14 ASI Ashok Kumar, PW15 Head Constable Hari Bhushan and PW17 Head Constable Prem Chand.
Learned Addl. PP has referred to the statements of all these witnesses and contended that case of the prosecution regarding the manner in which the police chased the vehicle of the accused and ultimately apprehended them, stands duly established, and as such both the accused are liable to convicted and sentenced.
On the other hand, learned defence counsel has contended that there are material contradictions in the statements of the prosecution witnesses which create doubt in the version of prosecution about chasing of the accused persons apprehending them and recovery of firearm and ammunition from Keshav Prasad accused. It has been contended that actually Keshav Prasad accused was picked -:20:- up from his house on 31/07/1994, illegally detained by the police and ultimately falsely implicated in this case. In this regard reference has been made to statement of DW1 Sunil Kumar, nephew of Keshav Prasad accused and telegram Ex.DW1/C. So, it has been contended that both the accused persons are entitled to acquittal.
While making statement as PW20, Inspector L. N. Rao stated that team No.2 was directed to take position near the house of businessman in the area of Mahabir Nagar. The area of Mahabir Nagar has been named by the witness for the first time while appearing in court. Had team No. 2 been directed to take position in the area of Mahabir Nagar, this fact must have appeared in ruqqa sent from the spot after arrest of the accused. However, a perusal of ruqqa would reveal that words "in the area of Mahabir Nagar" do not find mention therein. PW1 SI Sunil Kumar, then Head Constable while appearing in court deposed that under the directions of the SHO, he, constable Umed Singh, constable Phool Singh, Constable Ashok Kumar and Constable Bijender Singh were deputed in plain clothes to keep the watch at the house of the businessman after they were apprised of expected arrival of -:21:- car No. DL-1CD-3168. Further according to the witness, he and the officers accompanying him went to the given address in a private Maruti Car and stationed at different places around that house. However, PW1 Sunil Kumar nowhere deposed as to in which area the house of said businessman was situated. He nowhere deposed about location of house of said businessman. There is nothing in his statement to show that he and his companions positioned themselves in the area of Mahabir Nagar. Thus, PW1 has not supported PW20 on the point that team No.2 was directed to take position in the area of Mahabir Nagar.
PW7 ASI Umed Singh, then Head Constable deposed in court that their teams were in two private Maruti Cars and that they were present in the area of Tilak Nagar and watching for Maruti Car No. DL-1CD-3168 as per directions of the SHO. Further according to him, at about 11:50 p.m., a car bearing aforesaid registration number came in the area near the house of the businessman and at the place where they were present. However, the witness did not state as to in which area they were present at the time they noticed the car bearing the aforesaid registration number. -:22:- Had their team actually positioned itself in any such area, the witness would not have omitted to state that it was in Mahabir Nagar where they were present while waiting for arrival of Maruti Car and that the house of businessman was situated in the area of Mahabir Nagar. The fact remains that he nowhere named the area where they were present on 05/08/19994 at about 11:50 p.m. Then there is statement of PW10 Head Constable Bijender Singh, another member of team No.2. According to PW10, he and other police officers were present in the area of Tilak Nagar in a private vehicle, when at about 11:50 p.m., Maruti Car bearing registration No. DL- 1/4? CD-3168 was noticed. The witness did not state that they were present in the area of Mahabir Nagar on the given date and time, so as to lend corroboration to the statement of PW20.
PW11 Head Constable Phool Singh, another member of Team No.2 deposed about his presence and presence of other members in a private vehicle, in the area of Police Station Tilak Nagar on 05/08/1994 as per instructions of the SHO and arrival of Maruti Esteem Car No. DL-1CD- 3168. He nowhere stated about their presence in the area of -:23:- Mahabir Nagar.
PW14 ASI Ashok Kumar, then posted as constable deposed that on 05/08/1994 at 11:50 p.m., Maruti Car No. DL-4CD-3168 came towards them while they were present in the area of Tilak Nagar in a private vehicle. However the witness did not state that they were present in the area of Mahabir Nagar.
In view of the above discussion, it stands established that no witness has lent corroboration to the statement of PW20 Inspector L N Rao that members of team No. 2 were present in the area of Mahabir Nagar.
When there is evidence on record to suggest that house of said businessman was situated in the area of Mahabir Nagar and none of the members of team No. 2 has deposed about their presence in the area of Mahabir Nagar, it becomes doubtful if team No. 2 was present in the area of Mahabir Nagar or that house of any such businessman was situated in the area of Mahabir Nagar.
It may be mentioned here that in suchlike cases, rough site plan is prepared so as to depict the position of a person on the relevant time and place. However, in this case, -:24:- no rough site plan has been prepared or got proved on record. In absence thereof, it can safely be said that prosecution has failed to lend corroboration to the version available in the statements of the witnesses examined in court regarding their position on the given date, time and place.
In ruqqa Ex. PW20/B, it stands recorded that HC Dharmender and Constable Sunil Kumar were deputed in connection with watch duty around the house of businessman and they were to perform their duty while on foot. None of the prosecution witness examined in this case has deposed about this fact. Even HC Dharmender and Constable Sunil have not been examined to prove this fact recorded in the ruqqa. In absence of examination of the HC and the Constable and deposition of this fact by the witnesses examined in court, it cannot be said that these two police officials were so deputed on watch duty near any such house, in any such area.
8. If Police fired any shot at the vehicle of the accused during chase?
According to PW20 Inspector L.N. Rao, at about 11.50 p.m., he got a wireless message from team No. 2 that -:25:- suspect had come near house of businessman in white colour Maruti 1000 CC Maruti Car bearing No. DL-1CD-3168 and that on suspicion, the criminals-its occupants had sped away the car from the area of Mahavir Nagar. It was thereupon that team No. 2 chased the car which was heading towards Najafgarh Road and he apprised team No. 2 that his own team was also following them. Further, according to PW20, his team also reached Najafgarh Road and followed team No.
2. After sometime, HC Sunil, In-charge of team No. 2, informed him (PW20) on wireless set that car of suspects had taken turn towards outer ring road leading to Paschim Vihar. According to PW20, he directed team No. 2 to continue chasing the suspects. The third message which team No.1, headed by PW20, received was that car had taken a turn towards Khyala Road, behind Keshavpur Depot. Thereupon, the witness is stated to have directed members of team No. 2 to open fire aiming at the tyres of the car, as a result whereof members of team No. 2 opened fire at the car. Car of the suspects was then seen entering the bushes on the left hand side of the road and then it stopped in the bushes.
According to PW1 SI Sunil Kumar, then HC, on -:26:- arrival of car No. DL-1CD-3168 near the house of businessman, its occupants took away the car in the direction of Janakpuri via Najafgarh, whereupon he flashed message to the SHO, and the SHO in turn directed him to chase the car telling him that his team was also following their team. According to PW1, the car took a turn towards outer ring road from District Centre traffic light junction so as to go in the direction of Paschim Vihar and that he informed the SHO about it. Further, according to PW1, when the car reached near DTC depot, it took turn towards Khyala. This fact was also brought to the notice of the SHO. SHO then directed him (PW1) to open fire at the wheels of the car to force the occupants to stop it. Thereupon, he fired three bullets from his service revolver aiming the tyres of the car, but the bullets did not hit the tyres. The bullets are stated to have hit on the back of the car.
HC Umed Singh then fired two bullets from his service revolver which also hit on the back of the car. The car was then stopped on the left side in the bushes.
In his cross examination, PW1 Sunil Kumar deposed that he fired at the vehicle of the accused from a -:27:- distance of 7/8 yards while chasing it and that it was thereafter that his companion Head Constable Umed Singh opened fire at their vehicle. Head Constable Umed Singh has appeared as PW7 and deposed that while chasing the vehicle of the accused which took a turn on village Khyala Road from Keshavpur Depot, as directed by the SHO, he fired two bullets from his service revolver on the tyres of the vehicle of the accused whereas Sunil fired three shots from his service revolver aiming its tyres. In his cross examination he deposed that in all five shots were fired at the vehicle of the accused while chasing it.
PW10 Head Constable Vijender Singh, another member of Team No.2 deposed that as per directions of the SHO Head Constable Sunil fired three shots from his service revolver aiming the Maruti Car whereas Head Constable Umed fired two shots from his service revolver aiming the Maruti Car. In his cross examination, the witness explained that Head Constable Umed Singh was sitting by the side of the driver of their car. According to Head Constable Vijender, he was sitting in the middle of the car whereas constable Ashok was on his left side and Constable Phool Singh on his -:28:- right side. The car was being driven by constable Sunil. According to PW10, Head Constable Umed and Head Constable Sunil opened fire at the moving car of the accused at a place 200/300 metres short of the place where the Maruti Car was ultimately stopped.
It is true that according to PW1 SI Sunil, first of all the shots were fired at the Maruti Car of the accused by him and then by Head Constable Umed. But according to PW10, Head Constable Umed Singh and Head Constable Sunil opened the same almost simultaneously.
PW11 Head Constable Phool Singh, another member of Team No. 2 stated in his chief examination that Head Constable Sunil fired three shots whereas Head Constable Umed Singh fired two shots at the Maruti Car with their respective service revolver.
PW14 ASI Ashok Kumar deposed that while chasing the Maruti Car on the road in front of Keshav Pur Subzi Mandi, they tried to overtake said Maruti Car with a view to stop it, but it was not stopped and ultimately the Maruti Car was stopped near R. B. Jain Hospital, Keshav Pur.
Learned defence counsel has referred to the -:29:- statement of PW14 and submitted that this witness nowhere deposed about opening of fire by any member of Team No.2 which goes to show that no firing was done by any of the member of Team No.2 at the vehicle in which the accused are stated to have been travelling on 05/08/1994 and as such no reliance should be placed on the prosecution version which does not find corroboration from any independent source.
It is correct that PW14 ASI Ashok Kumar stated to be a member of Team No.2 has not deposed about firing of any shot by any of the member of Team No.2. He has deposed about the fact that the vehicle of the accused was chased, tried to be stopped in front of Keshavpur Subzi Mandi, but it could not be stopped there and that ultimately he was stopped near R. B. Jain Hospital, Keshavpur.
Case of prosecution is that there was a whole in the rear glass of the vehicle of the accused because of firing by the police team. Had any shot been fired aiming at the tyres of the vehicle of the accused, the police team being at a short distance from this vehicle could not miss the target. In such a situation, the shot could not hit the rear windscreen of the vehicle of the accused. Even if a shot hit the rear -:30:- windscreen of the vehicle of the accused, lead must have been recovered from inside the vehicle of the accused. However, in this case, it is not case of prosecution that any lead was recovered from inside the vehicle of the accused. Recovery memo Ex.PW1/H in respect of seizure of the vehicle of accused does not reveal that any lead was recovered from it. Even PW7 ASI Umed Singh admitted in his cross-examination that no lead was recovered from inside Maruti car of the accused. The witness displayed ignorance if any bullet pierced through the windscreen or as to how many bullets struck the Maruti car of the accused. On the other hand, according to PW1 SI Sunil Kumar, one lead was recovered from the vehicle of the accused and this fact came to his notice during pendency of bail application of the accused. However, this fact stated by PW1 does not find support from statement of any other witness or any documentary evidence. Furthermore, statement of PW1 is in contradiction with the statement of PW7. All this creates doubt in the version of prosecution if actually any shot was fired aiming the tyres of the Maruti car of the accused or if any shot fired by any police official hit rear wind screen of the Maruti -:31:- car of the accused.
9. Did any of the accused open fire at the police?
According to PW20 Inspector L. N. Rao, when the car of the accused stopped in the bushes on the left hand side of the road, he and other members of his Team No. 1 reached there and saw occupants of the Maruti Car alighting from it and running away after opening each of the door of the car. Further according to him, the person who alighted from the driver's seat was Samar Pal accused and that he was running towards his right side whereas other person who alighted from front left hand side door of the car was Keshav Prasad (accused). It is also in his statement that Head Constable Sunil and Umed Singh chased Samar Pal accused whereas Constables Ashok Kumar, Bijender Singh and Phool Singh chased Keshav Prasad accused. Further according to him, Keshav Prasad accused fired shots at the police officials chasing him but thereafter he could not fire any shot perhaps because the weapon got stuck.
The witness further deposed that Keshav Prasad and the constables chasing him had a scuffle with each other whereupon he (the witness) opened fire from his service -:32:- revolver in the air and ultimately the three constables succeeded in overpowering the Keshav Prasad and capturing from him a pistol. However, the witness again stated in the next breath that actually he had taken over the pistol from Keshav Prasad accused and the pistol was of 30 bore loaded with five live cartridges in a magazine. One of these five live cartridges was found, according to the witness, in between the chamber and the magazine.
PW1 SI Sunil Kumar stated in his cross-
examination that the SHO snatched pistol from Keshav Prasad when there was a scuffle between members of police team and Keshav Prasad accused. SI Sunil Kumar did not specify as to who were the members of the police team with whom such a scuffle took place before the pistol was recovered from him. However, at another stage PW1 SI Sunil Kumar stated in his cross-examination that the SHO took the pistol from the hands of Keshav Prasad in his presence after Keshav Prasad was brought near the vehicle. So PW1 has made contradictory statement regarding the place where the pistol was recovered from Keshav Prasad accused.
PW7 ASI Umed Singh displayed ignorance as to -:33:- who was holding the pistol said to have been recovered from Keshav Prasad accused.
Case of prosecution is that scuffle took place between Constables Ashok Kumar, Phool Singh and Vijender Singh and Keshav Prasad accused. But according to PW14, ASI Ashok Kumar, he and Constable Phool Singh chased Keshav Prasad accused and caught hold of him and during this process, Keshav Prasad gave a tooth bite on his person and also gave beatings to him and Constable Phool Singh. PW14 did not state that Constable Vijender Singh had also a scuffle with Keshav Prasad accused or that Constable Vijender Singh also helped them in apprehending Keshav Prasad accused. It creates doubt in the version of prosecution regarding presence of Constable Vijender Singh at the time Keshav Prasad accused is said to have been chased and apprehended.
Learned defence counsel has contended that the version narrated by PW20 that one of the cartridges was found in between the chamber and the magazine has been introduced later on as it appears from the ruqqa that this fact does not find mention in it. It has also been contended that -:34:- statement of PW20 to the effect that one live cartridge was found in between the chamber and the magazine is unbelievable as it can never so happen in case of such a pistol. Learned defence counsel has further contended that whenever a shot is fired the ejecting pin of the pistol automatically ejects the empty and the lead is pushed into the chamber and as such there is no possibility of any cartridge being found in between the chamber and the magazine.
A perusal of ruqqa Ex.PW20/B would reveal that therein Inspector L.N. Rao mentioned that HC Sunil Kumar and HC Umed Singh apprehended one of the occupants of the car, who alighted from driver's seat and started running away, whereas Constables Ashok Kumar, Phool Singh and Vijender Singh chased the other occupants of the car, who alighted from its front left side door. The Inspector then mentioned about recovery of loaded pistol from the right hand of Keshav Prasad accused. As regards recovery of the cartridges, the Inspector recorded in the ruqqa that it was Chinese make .30 bore pistol, loaded with five live cartridges. It was specifically mentioned therein that all the five live cartridges were unloaded from the magazine. It does not find -:35:- mention therein that any of the live cartridge was found entangled in between the chamber and the magazine.
Then, there is recovery memo Ex. PW1/C. It stands recorded in this memo that all the five cartridges were recovered from the magazine, on unloading of the pistol. There is no mention in it that any live cartridge was recovered from in between magazine and the chamber of the pistol.
PW1 SI Sunil Kumar stated in his chief examination that on checking the pistol, recovered from
Keshav Prasad accused, five live cartridges were found loaded in it. The witness admitted in his cross examination that in case of firing from a pistol, after firing of one round, the other live round is automatically loaded in the chamber and is ready for fire, whereas the empty comes out of the side hole of the pistol. PW1 displayed ignorance if any live round was recovered from chamber of the pistol.
PW7 ASI Umed Singh deposed about recovery of five live cartridges from the magazine of the pistol. However, in his cross examination, he deposed that on unloading the pistol, recovered from Keshav Prasad accused, one bullet was recovered from its chamber. When he was confronted -:36:- with his chief examination wherein he stated that five live cartridges were recovered from the magazine of the pistol, the witness explained that he was correcting himself and stating that one of the bullet was recovered from the chamber.
PW10 HC Vijender Singh nowhere stated in his chief examination about recovery of any live cartridge from the pistol recovered from Keshav Prasad accused. However, in his cross examination, he stated that when the pistol was checked in his presence by the SHO, four live cartridges were recovered from its magazine and one live cartridge was recovered from its chamber. He admitted to have not stated so before Investigating Officer that one live cartridge was recovered from the chamber of the pistol.
PW11 HC Phool Singh deposed about recovery of pistol from Keshav Prasad accused, but in his cross examination he stated that the pistol was not checked in his presence. The fact remains that PW11 has nowhere deposed about recovery of any pistol and recovery of any live cartridge from it.
PW14 ASI Ashok Kumar nowhere deposed either about recovery of a pistol or about recovery of any live -:37:- cartridge after Keshav Prasad accused was apprehended.
PW15 HC Hari Bhushan did not state in his chief examination about recovery of any firearm and ammunition from Keshav Prasad accused. But in his cross examination he deposed that one weapon was recovered from Keshav Prasad accused, by the SHO, in his presence, However, the witness could not give description of the weapon. He further stated in his cross examination that five live rounds were recovered from the magazine of the weapon, recovered from Keshav Prasad accused. The witness displayed ignorance if anything was recovered from the chamber of the weapon. Had any weapon been recovered from Keshav Prasad accused in presence of this witness, he would have specified as to the kind of the weapon. Since he has not been able to describe the kind of the weapon, it becomes doubtful if any such weapon was recovered from Keshav Prasad accused in his presence on the given date, time and place.
PW17 HC Prem Chand deposed that one of the accused apprehended by the other team was having a loaded pistol of .34 bore in his right hand. In his cross examination, he stated that magazine of the pistol was removed by the -:38:- Inspector; that sketch of only one of the cartridges was prepared as all the five cartridges recovered from the magazine were of similar round. Therefore, according to the witness, five live cartridges were recovered from the pistol. He did not specify as to whether any cartridge was recovered from the chamber of the pistol. In view of these contradiction in the statement of PW17 HC Prem Chand and the prosecution story creates doubt about his presence on the given date, time and place.
In view of the above discussion, it is not believable the that one cartridge was found stuck in between the chamber and the magazine.
It is in the statements of witnesses namely PW14 Ashok Kumar, PW10 Vijender and PW11 Phool Singh that they were taken to hospital where they were medico legally examined at about 12.30 a.m. There is interpolation in the time of their arrival at the hospital, as stands recorded in the MLC. Medical evidence does not reveal that any of these constables suffered any grievous injury or injury on vital part necessitating immediate removal of anyone of them to the hospital, without even getting the memos attested from them. -:39:- Furthermore, PW8 Dr. Hirday Narain of DDU Hospital, who medico legally examined these three constables stated in cross-examination that possibility of the injuries on their person having been self made cannot be ruled out. Consequently, it cannot be said that Keshav Prasad could not fire perhaps because his weapon did not fire. So it becomes doubtful that in any scuffle Keshav Prasad would have used only butt of the pistol in inflicting injuries on the person of the three constables.
In the given circumstances, when live cartridges are stated to have been recovered from the pistol and Keshav Prasad could easily open fire at the constables, if any chasing him, than to use only its butt. As a result, the prosecution version that Keshav Prasad used tooth bite and only butt of the pistol in inflicting injuries during scuffle with the three constables becomes highly doubtful.
10. Why rough sketch of only one cartridge out of five cartridges was prepared?
Case of prosecution is that five live cartridges were recovered from the pistol found in possession of Keshav -:40:- Prasad accused. In case of any such recovery, rough sketch of all the cartridges is prepared. However, in this case, rough sketch of magazine and only one of the cartridges is said to have been prepared, which is Ex.PW1/B. There is no explanation as to why rough sketch of all the five live cartridges was not prepared. So, it becomes doubtful if five live cartridges were recovered from Keshav Prasad accused.
As noticed above, as per prosecution version the pistol and magazine were recovered in presence of the three constables, namely Ashok Kumar, Vijender and Phool Singh. In this situation, the Inspector should have got the recovery memos attested from any of the three constables. However, a perusal of sketch of the pistol, magazine, cartridge Ex.PW1/A and B and memo Ex.PW1/C in respect of recovery of pistol and five live cartridges would reveal that these bear attestation of HC Sunil Kumar and Ct. Prem Chand. There is no explanation as to why these memos do not bear attestation of Constables Ashok Kumar, Vijender or Phool Singh. Memo Ex.PW1/H regarding recovery of car would reveal that name of Constable Bijender Singh initially written has been scored off and in its place name of Constable Prem -:41:- Chand has been written later on. This fact further creates doubt in the manner in which investigation has been conducted.
11. Place of Recovery of Empties not shown in Site Plan.
Case of prosecution is that three cartridge cases were picked up from the spot and that these were of the shots fired by Keshav Prasad accused while he was running away. In such like cases in the rough site plan place of recovery of all the incriminating materials / items is prepared to lend corroboration to the prosecution version. In this case site plan Ex.PW20/C was prepared. Perusal of the site plan would reveal that it does not show any place of recovery of cartridge cases said to have been used by Keshav Prasad accused. Had any such empty been recovered from the spot the Inspector could not have omitted to pin-point the place from where three empty cartridges are said to have been recovered. Since no such place has been pointed out in rough site plan Ex.PW20/C it becomes doubtful if any such empty was recovered from any such place.
-:42:-
12. Informatory Telegram given on behalf of Keshav Prasad accused on 04.08.1994.
Accused has examined DW1 Sunil Kumar nephew of Keshav Prasad accused to prove that on 31.7.1994 at about 3/4 p.m while he was present at the house of his uncle (Keshav Prasad), his uncle and four others were taken away by 5/6 persons who were in civil dress. Those persons did not inform as to where his uncle and four others were being taken away. According to the witness, on 4.8.94 he sent telegram to the Commissioner of Police, Apex Court and Delhi High Court. Certified try copy of telegram is Ex.DW1/C. Prosecution has not disputed dispatch of telegram Ex.DW1/C. A perusal of contents of telegram Ex.DW1/C would reveal that it was sent on 4.8.94 at about 2.35 p.m. informing the authorities mentioned therein that Delhi Police in collusion with U. P. Police had lifted Keshav son of Angad Singh and others and that they were in illegal custody of the police w.e.f. 31.7.94. Sunil Kumar, the informant, raised apprehension of these persons being killed in fake encounter or false implication in any heinous criminal case. -:43:-
Present case pertains to occurrence of the night intervening 05/6.8.94. It cannot be said that Keshav Prasad accused in advance got sent this telegram on 04.08.1994 after having preplanned to commit some crime, which led to registration of this case. The fact remains that informatory telegram was given to higher authorities informing that Keshav Prasad and others were in illegal custody of police w.e.f. 31.07.94. This informatory telegram further creates doubt about arrest of the accused persons on the night intervening 05/06.08.1994.
13. Conclusion In view of the above discussion, when
1. prosecution has failed to disclose name of the businessman who is alleged to have been threatened with dire consequences in case of non-payment of money;
2. there are material contradictions and discrepancies in the statements of prosecution witnesses;
3. prosecution version regarding firing by the police team at vehicle of the accused has been held to be doubtful;
-:44:-
4. prosecution version regarding causing of injuries on the person of three constables by Keshav Prasad accused has been held to be doubtful;
5. prosecution version regarding recovery of firearm and ammunition from Keshav Prasad accused and its use by him has been held to be doubtful, this court comes to the conclusion that prosecution has miserably failed to bring home guilt to any of the accused for any of the offences. Consequently, both Keshav Prasad @ Keshav and Samar Pal accused are acquitted in this case.
Case property be disposed of in accordance with rules on expiry of period of appeal/revision, if none is preferred or subject to decision thereof.
File be consigned to record room.
Announced in Open Court on dated 05th of August, 2008 ( Narinder Kumar ) Additional Sessions Judge Fast Track Court Rohini : Delhi