Delhi District Court
State vs 1. Pawan Kumar @ Pappu on 1 August, 2018
IN THE COURT OF
Dr. SATINDER KUMAR GAUTAM : ADDL. SESSIONS JUDGE-03 :
EAST DISTRICT : KARKARDOOMA COURTS : DELHI.
S.C. No. : 553 of 2016
(I.D. No. : 02402R0182272011)
State Versus 1. Pawan Kumar @ Pappu
S/o Sh. Satya Prakash
R/o 1/3673, Loni Road, Ram -
Nagar, Shahdara, Delhi.
2. Jafar Ahmad S/o Kana
S/o Mohd. Rafiq
R/o H.No. 12A/92, Lane No. 15,
Vijay Mohalla, Mauzpur, Delhi.
FIR No. : 177/2010
Under Section : 392/397/307/186/332/353/34 IPC
Police Station : Madhu Vihar
Chargesheet Filed On : 10.06.2011
Chargesheet Allocated On : 20.09.2011
Undersigned presided over this Court : 06.11.2017
Judgment Reserved On : 31.07.2018
Judgment Announced On : 01.08.2018
Corum: Sh. A.K. Mishra, ld. Addl. PP for the State
Sh. A.C. Singhal, LAC for accused Pawan
Sh. Kapil Singhal, ld. counsel for accused Jafar
JUDGMENT
1. The case of the prosecution, in brief, is that on receipt of DD No. 25, HC Rajender reached at outgate, Road No. 56, ISBT Anand Vihar where SC No. 553/16 State Vs. Pawan Kumar @ Pappu etc. Page No.: 1 of 22 he met HC Sunil who had apprehended one boy named Pawan Kumar @ Pappu. The complainant Satish Pal and PCR Van R-60 were also present there.
2. The present FIR was registered on the complaint of complainant Satish Pal who stated that he is doing the work of selling ice at New Delhi Railway Station. On 28.05.2010 at about 10.40 pm, he was going to his uncle's house on his motorcycle make Pulsar bearing no. DL-7SBE-1369 of red colour at Bhowapur near EDM Mall. At about 11 p.m., when he was passing through the Anand Vihar flyover, two persons came there on a Hero Honda Splender motorcycle bearing no. DL-7SAR-2987 after overtaking his motorcycle and gave a signal to stop him by showing katta and due to fear, he slowed down his motorcycle and stopped it. Those persons told him to get down from his motorcycle and handover whatever he has otherwise they would kill him. The pillion rider of that motorcycle forcibly took out his black colour purse from the back side pocket of his wearing pant which contained his open school I card, cash of Rs.200/- and some visiting cards. Driver of the said motorcycle also took out his mobile make Nokia N-95 of grey colour with SIIM 9899103017 from the pocket of his pant by showing katta (countrymade pistol) and threatened him to kill. When those robbers tried to ran away from the spot alongwith his motorcycle and robbed articles, he heard the police siren and saw a yellow coloured motorcycle of police coming there. Complainant raised alarm that his motorcycle is being robbed. On seeing the SC No. 553/16 State Vs. Pawan Kumar @ Pappu etc. Page No.: 2 of 22 said police official, those two boys ran away from the spot on their motorcycle leaving behind his motorcycle and the said police official chased those robbers. The motorcycle of those robbers slipped at the out gate of ISBT red light, when they speedily tried to take a U-turn towards Seemapuri. Thereafter, both robbers took katta in their right hands and showed the same to police official and one of them fired a shot at the police official but he escaped himself. The said police official also fired two rounds from his service pistol and apprehended one of the robber who was having katta in his hands and another robber managed to escape from there. The name of apprehended boy was revealed as Pawan @ Pappu and complainant identified him as one of the robber who snatched his purse pointing a katta towards him and tried to fled away from the spot alongwith his motorcycle.
3. On the basis of statement of complainant, a case u/s 392/397/307/186/332/353/34 IPC and 27/25/54/59 Arms Act was registered. Proceedings regarding accused Pawan @ Pappu along with recovered and used katta were conducted. Later on, at the pointing out of accused Pawan @ Pappu, accused Jafar Ahmed @ Kana was also arrested from his house. Accused Jafar Ahmed @ Kana also got recovered one countrymade pistol with live cartridge which he kept concealed beneath a pillow on his bed. Proceedings regarding the recovered arms and ammunition were also conducted and about arrest of said accused. After conclusion of the investigation, the chargesheet was filed against both the accused persons SC No. 553/16 State Vs. Pawan Kumar @ Pappu etc. Page No.: 3 of 22 before the court of Ld. Metropolitan Magistrate for the offences punishable under Sections 392/397/307/186/332/353/34 IPC and 25/27/54/59 Arms Act.
4. After compliance of the provisions of Section 207 CrPC by the court of Ld. MM, case was committed to the Court of Sessions as Secs. 307/397 IPC are exclusively triable by it.
5. Vide order dated 20.04.2013 passed by Ld. Predecessor, charge was framed under Section 307/353/34 IPC against both accused persons; separate charges u/s 392/34 IPC against accused Jafar Ahmed @ Kana; charge u/s 397 IPC against accused Pawan Kumar @ Pappu and separate charges u/s 27/25 Arms Act against both accused persons. To the said charges, both accused pleaded not guilty and claimed trial.
6. The Prosecution in support of its case has examined 13 witnesses in all.
PW-1 Satish Pal is the complainant/victim of this case who stated that on 27.05.2010 at about 10/10.30 p.m., he was going to house of his uncle on his motorcycle make Pulsar bearing registration no. DL-7SBE- 1369 and reached at the Anand Vihar flyover, two persons on one motorcycle said "Hello" to him and he slowed down his motorcycle and stopped. Those persons came to him and took out a katta and told him to handover whatever he had and robbed his mobile phone, purse containing cash of Rs.200/-, some visiting cards and I-Card of Open School of him. Those persons directed him to get down from his bike and he accordingly got down from his motorcycle. In SC No. 553/16 State Vs. Pawan Kumar @ Pappu etc. Page No.: 4 of 22 the meantime, he heard the siren of police motorcycle and raised an alarm. Those persons pushed his motorcycle and left the spot on their own motorcycle. Police reached at the spot and he told him that two persons had snatched his mobile and purse at gun point. The said police official started chasing the robbers on his motorcycle. He went to Police Post Anand Vihar and told the police officials regarding the incident. He has proved his complaint Ex.PW1/A, site plan Ex.PW1/B, sketch of katta Ex.PW1/C and its seizure memo Ex.PW1/D, sketch of empty cartridge Ex.PW1/E, seizure memo of motorcycle of accused persons bearing no. DL-7SAR-2987 Ex.PW1/G, seizure memo of his purse Ex.PW1/H, seizure memo of his motorcycle bearing no. DL-7SBE-1369 Ex.PW1/J, seizure memo of his mobile phone Ex.PW1/K, arrest memo, personal search memo and disclosure statement of accused Pawan Kumar as Ex.PW1/L, PW1/M and Ex.PW3/B, seizure memo of five empty cartridges Ex.PW1/N. PW-2 HC Ramesh Singh, Duty Officer, proved the copy of FIR Ex.PW2/A and endorsement on ruqqa Ex.PW2/B. PW-3 HC Sunil Kumar stated that on 27.05.2010, when he was on patrolling and going towards Anand Vihar Flyover, one person was raising alarm and he thought that he might be in need of some help. He took turn towards that road and when he was about to reach the said boy, he saw that two persons leaving behind one motorcycle bearing registration no. DL-7SBE- 1369 make Pulsar red colour, sat on a Splender motorcycle no. bearing SC No. 553/16 State Vs. Pawan Kumar @ Pappu etc. Page No.: 5 of 22 registration No. DL-7SAR-2987 and started running away on the said motorcycle after seeing him. He started chasing the motorcycle of those boys on his motorcycle, when they tried to take U-turn from the red light opposite out-gate, ISBT, Anand Vihar, their motorcycle slipped and both of them fell down. One of those boys, took out his pistol and asked PW-3 to stay away otherwise he would fire on him. The other boy also took out a pistol and fired on him but he saved himself. He took out his service pistol and fired two rounds on those boys but it did not hit anyone. This witness over powered the pillion rider and his country made pistol was also snatched by him. The pillion rider was also beaten by the public persons gathered there whereas the other boy (motorcycle rider) managed to escape from there. Someone made 100 number call. PCR Van reached there and complainant/victim/PW-1 also arrived there. This witness also proved the documents i.e. seizure memo of his service pistol, two empty cartridges and three live cartridges as Ex.PW3/A, disclosure statement of accused Jafar Ahmed Ex.PW3/B, sketch of country made pistol Ex.PW3/C, seizure memo of country made pistol and live cartridges Ex.PW3/D, arrest memo, personal search memo and disclosure statement of accused Jafar Ahmed Ex.PW3/E, PW3/F and PW3/G. PW-4 ASI Rajender Singh stated that on receipt of DD no.25, he reached the spot and conducted the proceedings. He has proved the rukka Ex.PW4/A. SC No. 553/16 State Vs. Pawan Kumar @ Pappu etc. Page No.: 6 of 22 PW-5 HC Brij Mohan stated that on 07.01.2011, on the instructions of SI V.N. Jha, he had collected authority letter from SHO, had gone to FSL, Rohini, collected one sealed envelop alongwith four pullandas duly sealed with the seal of FSL, deposited the pullandas with MHC(M) and handedover the sealed envelop to IO.
PW-6 Sh. R. Suresh, Assistant Director (Ballistics) from CFSL, Guwahati has proved report regarding examination of four sealed parcels alongwith specimen seal Ex.PW6/A. PW-7 HC Pawan Kumar stated that on 21.07.2010, on the instructions of IO, he had taken four sealed pullandas alongwith sample seal and forwarding letter from MHC(M) PS Madhu Vihar vide RC No. 27/21/2010 to be deposited at FSL, Rohini and he deposited the same vide receipt no. 3117/2010 and handedover receipt to IO and copy of RC to MHC(M).
PW-8 Sh. Lalit Kumar, the then DJS, proved the TIP proceedings vide Ex.PW8/A to D qua accused Jafar.
PW-9 DCP Asif Mohd. Ali stated that on 04.03.2011, he accorded the sanction u/s 39 Arms Act against accused Pawan Kumar @ Pappu and Jafar Ahmed @ Kana vide sanctions Ex.PW9/A and PW9/B. PW-10 Ct. Manoj Tiwari has proved the copy of DD no.23 dated 27.05.2010 as Ex.PW10/A, copy of DD no.25 dated 27.05.2010 as Ex.PW10/B, copy of DD no.15 dated 27.05.2010 and DD no.8 dated SC No. 553/16 State Vs. Pawan Kumar @ Pappu etc. Page No.: 7 of 22 28.05.2010 as Ex.PW10/C and PW10/D. PW-11 ACP Mahender Kumar Meena has proved complaint u/s 195 CrPC dated 14.03.2011 Ex.PW11/A. PW-12 HC Sushil Kumar has proved the list of cases of previous involvement of accused Jafar Ahmed @ Kana as Ex.PW12/A. PW-13 Insp. V.N. Jha is part Investigating Officer of the case and proved the pointing out memo prepared at the pointing out of accused Zafar as Ex.PW13/A.
7. After conclusion of the prosecution evidence, the statement of the accused persons were recorded under Section 313 CrPC in which they denied all the incriminating circumstances put against them. Both accused persons pleaded their innocence and their false implication. Accused Pawan further pleaded that as he was involved in other criminal cases, police officials directed him to visit Police Station with motorcycle and then implicated him in this case falsely after seizing his motorcycle. Plea taken by accused Jafar is also to the effect that he was implicated falsely in this case after lifting him from his house as he was involved in other criminal cases. Neither of them claimed case property. Both of them opted to lead evidence in their defence.
8. DW-1 Mohd. Rafiq, father of accused Jafar, deposed that on 27.05.2010 at about 7.30/8 p.m. his son came after finishing his duties and while his son was taking rest at about 11 p.m., after taking dinner, police officials came to his house and took away his son to the Police Station on the SC No. 553/16 State Vs. Pawan Kumar @ Pappu etc. Page No.: 8 of 22 pretext of some inquiries. He further deposed that he also went to Police Station with his son but he was made to sit outside and in the morning he was asked to leave the PS and go to his home and later on, he came to know that his son has been implicated falsely in this case. He further stated that nothing was recovered from his son.
9. Ld. Addl. PP for the State argued that prosecution has been able to prove the charges against both the accused persons through evidence of witnesses and recovery effected. He argued that there is no reason to disbelieve the testimony of PW-3 HC Sunil Kumar, with whom no ill-will, grudge or enmity has either been alleged or proved by either of the accused. He further contended that accused persons failed to give their explanation if both of them were not present at the spot on the date and time of incident, where they were present. Ld. Addl. PP for the State further argued that refusal to joining of TIP proceedings by accused Jafar is also an adverse inference against the said accused. Ld. Addl. PP, therefore, prayed for conviction, as per law. He submitted that there is nothing to disbelieve the testimony of other prosecution witnesses and the culpability of both accused stands fully established. Ld. Addl. PP prayed for their conviction, as per the charges framed against the accused persons.
10. Ld. counsels for both accused persons submit that prosecution has miserably failed to prove its case against both accused persons. Both defence counsels submit that one of the victim/complainant i.e. PW-1 Satish SC No. 553/16 State Vs. Pawan Kumar @ Pappu etc. Page No.: 9 of 22 Pal failed to identify either of the accused as responsible for the crime committed in the present matter and thus, both these accused persons are liable to be acquitted only on sole ground.
11. Both defence counsels submit that testimony of PW-3 HC Sunil Kumar is full of contradictions and improvements with other record and thus cannot be believed. Next contention of the ld. counsels for the accused persons is that non joining of the public persons, despite their availability, is also an adverse effect on the prosecution case which clearly shows that prosecution case is concocted and false one. Ld. defence counsels further contended that absence of MLC of the also creates doubt on the prosecution case.
12. Next contention of the ld. counsels is that testimony of the defence witnesses be also treated at par and this all points to the fact that prosecution case is based on false facts.
13. Ld. counsel for accused Pawan has relied upon the judgments reported as Lalji Shukla Vs. State, 2000(1) RCR (Criminal) 305; Ramesh Prakash Vs. State, 2000 (1) RCR, 306; Kailash @ Kuddu Vs. State of Delhi, 2000 Crl.L.J. 2134; Survey @ Servajeet Singh Vs. State of M.P., 1991 (3) Crimes 746; and Megha Singh Vs. State of Haryana, AIR 1995 Supreme Court 2339.
14. Ld. counsel for accused Jafar has relied upon the cases reported as State of NCT Vs. Hazara Singh & Ors, 2011 (4) JCC 2463; Zohra Vs. SC No. 553/16 State Vs. Pawan Kumar @ Pappu etc. Page No.: 10 of 22 State, 2000 DLS 18 HC; State of Bihar Vs. Ram Padarath Singh & Ors., 1998 (2) CC Cases (SC) 267; Jafar @ Raju Vs. State , 2013 (2) JCC 1175; Riaz Ali Vs. State, 2012 (2) JCC 1092 and State of Haryana Vs. Ram Singh, 2002 CCR 68 (SC).
15. Having carefully gone through the entire material on record and considered the rival submissions of the parties in the light of the law in issue including the judgments on the issues in question.
16. The present matter can be divided in two parts - firstly for robbery with respect to PW-1 Satish Pal and then for other offences i.e. 307/353/34 and also Sections of 27/25 Arms Act.
17. In order to prove the guilt for the offences of robbery for which accused Jafar Ahmed @ Kana has been charged for the offence punishable under Sec. 392/34 and accused Pawan Kumar @ Pappu has been charged for offence punishable under Sec. 392 read with Sec. 397/34 IPC, the star and key witness is PW-1 Satish Pal. This witness was examined before the court on 06.11.2013. During examination-in-chief, he in clear terms stated that -
On 27.05.2010 at abut 10-10.30 p.m. I was going to my uncle's house by my motor cycle xxxxx two persons in a motorcycle said hello to me. I slow down my motorcycle and stopped. Those two persons also came to my side. One of them took out a katta and asked me to hand over. I was having at the point of the katta. They robbed my purse containing cash Rs. 200/- xxxxxxx They also directed me to get down from my bike. I got down from my SC No. 553/16 State Vs. Pawan Kumar @ Pappu etc. Page No.: 11 of 22 bike. In the meantime, I heard the siren of the police motorcycle. After seeing the police, I raised alarm that my motorcycle is being snatched by those persons. One of the persons pushed my motorcycle and both of them left the spot with the motorcycle. The police on the motorcycle came to t he spot. I told him that persons had snatched xxxxxxxxxxxxxxx I cannot identify the persons today in the court who had robbed my purse and mobile phone at this stage. Those accused persons are not present in the court today.
18. From the above, it is clear that during examination-in-chief, this witness failed to identify either of the accused persons present in the court responsible to the crime committed upon him. This witness was declared hostile by State and was cross-examined at length by ld. Addl. PP but despite all this, witness remained stuck to the stand taken by him and failed to identify either of the accused for the offences committed upon him. Besides this, there is no other witness on record to prove these offences.
19. With these observations, court is of view that prosecution has miserably failed to prove its case against accused Pawan Kumar @ Pappu for the offence punishable under Sec. 392 read with Sec. 397/34 and also against accused Jafar Ahmed @ Kana for the offence punishable under Sec. 392/34 IPC. As such, these accused persons are acquitted of these offences alleged against him.
20. Now, court is left with the charges for the offence punishable under Sec. 307/353/34 IPC framed against both accused persons with SC No. 553/16 State Vs. Pawan Kumar @ Pappu etc. Page No.: 12 of 22 separate charge under Sec. 27/25 Arms Act against both accused persons.
21. Further to facilitate the matter, court has to deal for these charges one by one. Now, court is dealing with charge framed against both accused persons for the offences punishable under Sec. 307/353/34 IPC.
22. To prove these offences, prosecution has examined PW-1Satish Pal and PW-3 Sunil Kumar. As mentioned above, PW-1 Satish Pal has not supported the prosecution case on any of these issues. He was declared hostile by State and even during cross-examination, he remained to the stand taken by him during his examination-in-chief on some of the material points and did not support the prosecution case on any of these issues. Now, court remained with the testimony of PW-3 HC Sunil Kumar. It is admitted fact that no ill-will, grudge or enmity has either been alleged or proved against either of these accused persons. There is no reason to disbelieve the testimony of PW- 3 HC Sunil Kumar, who is totally an independent witness in the prosecution case. It is also admitted fact that PW-3 Sunil Kumar is a police official and at the time of the incident, he was discharging his official duties. No suggestion contrary to this was also put to this witness at any point of time on behalf of the accused persons. PW-3 HC Sunil Kumar in clear terms deposed that - " I chased them on motorcycle. The said two persons tried to take U turn xxxx however their motorcycle slipped and they fell down. The pillion rider took out his pistol when they were taking U turn asked me to stay away or he would fire on me. When both of them fell down, the motorcycle rider also took out his SC No. 553/16 State Vs. Pawan Kumar @ Pappu etc. Page No.: 13 of 22 pistol. I stopped my motorcycle. The said motorcycle rider fired on me from his pistol, but I saved myself. Thereafter I took out my service revolver xxxxxxxxxx I overpowered the pillion rider and snatched his countrymade pistol xxx The motorcycle rider managed to escape xxxxx On inquiry, I came to know the name of accused Pawan @ Pappu. " This witness has correctly identified the said accused, present in court at that time.
23. As mentioned above, both accused were charged for the offences punishable under Sec. 307/353/34 IPC. To facilitate the matter, Section 353 IPC is reproduced as under:
"Whoever assaults or used criminal force to any person being a public servant in the execution of his duty as such, public servant, or with intent to prevent or deter that person from discharging this duty as such public servant, or in consequence of anything done or attempted to be done by such person I the lawful discharge of his duty as such public servant, shall be xxxx."
24. Empty cartridges were seized from the spot. From the FSL report, it is clear that all the arms and ammunition sent to FSL, are firearm/ammunition as defined in the Arms Act, 1959.
25. Hence, from the above discussion, it is stated by PW-3 HC Sunil Kumar that he was discharging his officials duties, as public servant and was obstructed to discharge his duties and was criminally assaulted by accused persons. Complaint under Sec. 195 CrPC has also been proved on record. Though, charge under Sec. 186 IPC has not been framed against either of the accused, but there is no bar to attract the provisions of offence for the offence SC No. 553/16 State Vs. Pawan Kumar @ Pappu etc. Page No.: 14 of 22 punishable u/s. 186 IPC, if evidence u/Sec. 353/307 IPC is found trustworthy. Section 186 IPC provides that voluntarily obstructs any public servant in the discharge of his public functions.
26. As discussed above, no reason found for false implication of the accused persons in the present matter as there is no ill-will etc. Neither of accused put any plea about their non-presence at the spot on the date and time of incident. Jafar examined DW-1 Mohd. Rafir, his father in his defence. It well settled that evidence of defence witness be also treated at par with prosecution but if found trustworthy. If evidence of DW-1 is taken as gospel truth, it is beyond any stretch of imagination that anyone would be in the knowledge that any incident of robbery etc. would be committed and he has to be implicated in the said case. No police or otherwise complaint is brought on record for false implication of the accused. Defence witness has been produced only for the sake of defence and even no such defence has ever been taken during the cross-examination of witnesses that he was lifted from his house prior to the incident and was implicated in this case falsely. As such, testimony of the defence witness is liable to be discredited and has no credence to the prosecution witnesses.
27. However, for the offence punishable under Sec. 307/34 IPC, it is to state that except the testimony of PW-3 HC Sunil Kumar, there is no other evidence to corroborate it. As discussed above, PW-1 Satish Pal has also not supported the prosecution on this issue. Alleged spot is admittedly public SC No. 553/16 State Vs. Pawan Kumar @ Pappu etc. Page No.: 15 of 22 place and no public person or any other police official has either been joined or cited on this issue. Court is of the view that it is common practice of the police officials to depose against the accused that accused fired but he (police official) escaped from the same either to book the accused for heinous offence or for the best reasons to know them. In such type of cases, all accused persons aimed the police official but with the grace of God, police official usually escape from the same.
28. Besides the above, as per the ingredients of Sec. 307 IPC, intention to kill or the knowledge of death is must. As held in Vasant Virthu Jathav V. State of Maharashtra (1997) 2 Crimes 539 (Bom.) , the question of intention to kill or the knowledge of death in terms of Sec. 307 IPC is a question of fact and not one of law and it would all depend on the facts of a given case. In view of the circumstances, it is clear that accused persons fired HC Sunil Kumar only with a view to manage to flee away from there and there was no such intention to kill or the knowledge of death and fired only with a view to escape themselves and only with a view to deter PW-3 HC Sunil from discharging his duty as such public servant.
29. In view of these circumstances and observations, court is of the view that prosecution has not proved its case against either of the accused for the offence punishable under Sew. 307/34 IPC as the ingredients of said ofofence do ont fulfilled the facts and circumstances of the case. As such, both accused persons i.e. Pawan Kumar @ Pappu and Jafar Ahmed @ SC No. 553/16 State Vs. Pawan Kumar @ Pappu etc. Page No.: 16 of 22 Kana are acquitted of the offence punishable under Sec. 307/34 IPC.
30. Qua, offence punishable under Sec. 186/353 IPC, it is admitted that PW-3 HC Sunil Kumar is a public servant and was on official duty. It is not required that his duty hours be specific. Rather every police official/officer is always on duty. Even if any crime took place in presence of police official, he is duty bound to prevent the said crime with utmost sincerity and capability. According to the Explanation (2) of Se. 21 IPC, the person who in fact discharged the duty of the office which bring him under the definition of public servant. As such, HC Sunil Kumar was assaulted in the execution of his duty as such public servant, covered under the definition of public servant and he was assaulted with intent to prevent and deter him from discharging his duties as public servant and hence, with these observations, court is of the view that prosecution has been able to prove its case beyond all reasonable doubts against both accused persons for the offence punishable under Sec. 186/353/34 IPC. As such, these accused persons namely Pawan Kumar @ Pappu and Jafar Ahmed @ Kana are held guilty for the offences punishable under Sections 186/353/34 IPC and as such, are accordingly convicted.
31. Qua, recoveries of arms and ammunitions, both accused persons have been charged separately for the offences punishable under Sec. 27/25 Arms Act.
SC No. 553/16 State Vs. Pawan Kumar @ Pappu etc. Page No.: 17 of 22
32. Qua for the offence punishable under Sec. 27/25 Arms Act for which accused Pawan Kumar @ Pappu has been charged, prosecution has examined PW-1 Satish Pal and PW-3 HC Sunil Kumar with PW-9 Sh. Asif Mohd. Ali and PW-11 Inspt. V.N.Jha to prove the guilt for the offence punishable under Sec. 27/25 Arms Act.
33. As mentioned above, PW-1 Satish Pal did not support the prosecution case on the point of identity of this accused. PW-9 Asif Mohd. Ali accorded the sanction under Sec. 39 Arms Act while PW-11 Inspt. V.N. Jha is the Investigating Officer. Now, the court left with the testimony of PW-3 HC Sunil Kumar only. It is well settled law that testimony of police official are competent witnesses and conviction against the accused can be based on their sole testimony but an onerous duty has been cast upon the court to scutrtinise their statements very closely in order to form an opinion whether they are reliable and trustworthy. It is an archaic notion that actions of the police officer should be approached with initial distrust. It is time now to start placing at least initial trust on the actions and the documents made by the police. At any rate, the court cannot start with the presumption that the police record are untrustworthy. As a preposition of law the presumption should be other way around. That officials acts of the police have been regularly performed is a wise principle of presumption and recognised even by the legislature. Hence when a police officer gives evidence in court that a certain SC No. 553/16 State Vs. Pawan Kumar @ Pappu etc. Page No.: 18 of 22 articles was recovered by him on the strength of the statement made by the accused it is open to the court to believe the version to be correct if it is not otherwise shown to be unreliable. It is for the accused, through cross examination of witnesses or through any other materials to show that the evidence of the police officer is either unreliable or at least unsafe to be acted upon in a particular case. If the court has any good reason to suspect the truthfulness of such records of the police the court could certainly take into account the fact that no other independent person was present at the time of recovery. But it is not a legally approvable procedure to presume that police action as unreliable to start with, nor to jettison such action merely for the reason that police did not collect signatures of independent persons in the documents made contemporaneous with such actions. (Ref. Govt of NCT of Delhi Vs Sunil (2001) 1 SCC , 652).
34. Learned counsel for the accused Pawan Kumar @ Pappu contended that non joining of the public persons despite their availability and hostile of PW-1 Satish Pal creates doubt on the prosecution case. Admittedly, PW-1 Satish Pal did not support the prosecution case on the point of identity of the accused. This fact affects the prosecution case.
35. Though accused has been charged for the offence punishable under Sec. 27/25 Arms Act and even sanction under Sec. 39 Arms Act is also there, but record is crystal clear to the effect that accused Pawan did not use the weapon at any point of time. Prosecution has failed to prove its case SC No. 553/16 State Vs. Pawan Kumar @ Pappu etc. Page No.: 19 of 22 regarding its use and even its possession by accused Pawan Kumar. As such, accused Pawan Kumar @ Pappu is acquitted for the offence punishable under Sec. 27/25/54/49 Arms Act, 1959.
36. Now, court is to deal with the charge under Sec. 27/25/54/59 Arms Act against accused Jafar Ahmed @ Kana. PW-3 HC Sunil Kumar;PW-4 ASI Rajender Singh; PW-9 Sh. Asif Mohd Ali, the then DCP and PW-13 Inspt. V.N. Jha are witnesses to prove the guilt against the accused for this offence.
37. PW-3 HC Sunil Kumar; PW-4 ASI Rajender Singh and PW-13 Inspt. V.N. Jha in their examination-in-chief deposed that accused Pawan led the police party to the house of accused Jafar Ahmed and on it, said accused was arrested and he also got recovered loaded countrymade pistol from underneath pillow. All these witnesses also proved the proceedings conducted to that effect. The court has already discussed the issue on the reliability and trustworthiness of the police officials and is of the same view again and same is not repeated again and again for the sake of brevity. But other circumstances also to be seen. Recovery has been allegedly effected from the house of said accused underneath a pillow where the family members also reside there.
38. It is the case of the prosecution itself that said recovery of pistol was effected from a residential area. No mohalla people was joined during the said proceedings. Though admittedly it is well settled law that non joining of public persons always is not fatal to the prosecution case and court has to see SC No. 553/16 State Vs. Pawan Kumar @ Pappu etc. Page No.: 20 of 22 other circumstances also. In the present matter, recovery was effected during morning hours of heavy summer season i.e. around 6.30 a.m. on 28.05.2010. Police officials easily can make efforts to join the public witnesses for the said recovery. None of the recovery witnesses in their examination-in-chief stated that any effort was made to join the public witnesses or any public witness was asked to join the proceedings. During cross-examination, conducted on behalf of this accused, PW-13 Inspt. V.N. Jha admitted that no notice was served on any public witness. This all shows that no efforts, what to say sincere efforts, were made to join the public witnesses despite their availability. This all casts a doubt on the prosecution story about recovery of weapon from the accused persons.
39. Under the over all circumstances and with these observations, court is of the view that prosecution has miserably failed to prove its case against accused Jafar Ahmed @ Kana for the offence punishable under Sec. 27/25/54/59 Arms Act, 1959 and as such, is acquitted of the offence punishable under Sec. 27/25/54/59 Arms Act.
40. Sum up of the above discussion is that accused Jafar Ahmed @ Kana is acquitted of the offence punishable under Sec. 392/34 IPC; accused Pawan Kumar @ Pappu is acquitted of the offence punishable under Sec. 392 read with Sec. 397/34 IPC. Both these accused are also acquitted of the offence punishable under Sec. 307/34 IPC and also under Sec. 27/25/54/59 Arms Act. However, both these accused persons i.e. Pawan Kumar @ Pappu SC No. 553/16 State Vs. Pawan Kumar @ Pappu etc. Page No.: 21 of 22 and Jafar Ahmed @ Kana are held guilty and as such, convicted for the offence punishable under Sections 186/353 read with Section 34 IPC. Announced in the open Court SATINDER Digitally signed by SATINDER KUMAR GAUTAM Dated : 01.08.2018 KUMAR GAUTAM Date: 2018.08.01 15:26:25 +0530 (Dr. Satinder Kumar Gautam) Additional Sessions Judge-03 (East) :
Karkardooma Courts : Delhi.
SC No. 553/16 State Vs. Pawan Kumar @ Pappu etc. Page No.: 22 of 22