Delhi District Court
St. vs . Sarwan Anr. 197/10 1 Of 18 on 14 March, 2014
IN THE COURT OF MR. UMED SINGH GREWAL
ASJ/SPECIAL JUDGE (NDPS)
NORTH DISTRICT:ROHINI COURTS:DELHI
SC No.169/2010
FIR No.197/2010
PS Bawana
State
Vs.
1. Sarwan s/o Suran Singh
R/o Village Damkan Kheri,
Distt.Sonepat, Haryana.
2. Surender @ Neetu @ Kana s/o Sh. Mahender Singh
R/o Village Jonti, PS Kanjhawala, Delhi.
Date of institution :10122010
Date when arguments concluded:07032014
Date when Judgment pronounced:14032014
Appearances: Mr.Ashok Kumar, APP for the State.
Mr.Nitin Vasisth, counsel for accused Sarwan
Ms. Shefali Sharma, Amicus Curiae for accused Surender
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JUDGMENT
1. Both accused have been forwarded by police to face trial u/s 186, 353, 307, 411/34 IPC & 25/27 Arms Act.
2. Facts are that on 17082010, HC Naresh Tyagi received tip off in Special Cell that interstate gangster Sarwan alongwith his accomplice Neetu Jonti shall go towards DSIDC, Bawana from the office of one Karambir in white Verna car bearing fake number plate of Delhi No.2892. Another informer gave information to Ct. Parveen of Special Cell that gangsters of the gang of Rajiv Kala and Manjil Mehal would commit robbery in company of Sarwan and Neetu in the area of DSIDC, Bawana and Bawana canal and those accused shall come there in white Indica car and Apache motorcycle bearing fake Delhi numbers 6912 and 8752 respectively. A big team of police officials was formed which left for the spot in civil dress with the informers and reached in front of the office of said Karambir but no movement was seen in the office premises. Verna car was also not spotted anywhere. The police team last reached near Bawana canal under construction CNG gas pump. SI Surender Singh and his team erected barricades there. The second team led by SI Deepak Malik erected barricades about 500 meters away from there near under construction water plant. 45 passersby were asked to join the coming proceedings but all refused. HC Devanand alongwith informer was asked to position himself behind the trees about 200 meters away from the barricades and was instructed to give signal by blowing whistle after seeing the vehicles of the St. vs. Sarwan anr. 197/10 2 of 18 accused. HC Devanand blew whistle at 10.45 PM and hence SI Surender Singh and his staff narrowed the barricades. In the meantime, an Indica car No.6912 followed by Apache motorcycle crossed the barricades in a high speed. These vehicles were being followed by Verna car but by that time, the barricades had been tightened. The driver of Verna car bearing number plate DL4CAH2892 stopped the car, tried to take U turn but the car was struck in the footpath. The person sitting on the front left seat fired at HC Naresh and SI Surender Singh but they saved themselves and the pistol borne man was apprehended. Thereafter the accused sitting in the driver seat fired at the police party but Ct. Amit and Ct.Shamsher apprehended and snatched pistol from him. The first accused told his name as Surender @ Teeu @ Kana and a pistol, magazine containing four live round, one live loaded round and one fired shell were recovered from him. These articles were sealed with the seal of SS. Pistol and dessi katta were recovered from second accused who disclosed his identity as Sarwan. A live round was found loaded in the katta. Katta and live round were sealed with the seal of SS and serial no.2 was given. On checking of pistol recovered from accused Sarwan by HC Naresh, it was found containing three live rounds in magazine, one live rounds in barrel and a fired cartridge was found lying on the ground. Seal of SS was affixed and serial no.3 was given to the pullanda. Form FSL was filled up and was sealed with the seal of SS and seal after use was handed over to Ct. Shamsher. All three pullandas were taken into possession. Verna car was taken into possession u/s 102 Cr. PC. Rukka was sent to PS through Ct. Shamsher.
St. vs. Sarwan anr. 197/10 3 of 18
3. Charge u/s 411,186,307/34 IPC and 25 & 27 Arms Act was framed against both accused on 180111 to which they claimed trial.
4. To prove the case, prosecution examined 18 witnesses. Accused examined Karambir as DW1. It is the same Karambir whose office was visited by accused and lateron it was raided by the police also.
5. PW1 HC Surender Singh registered FIR Ex.PW1/A on 1808 2010 at 1.30 AM on receipt of rukka brought by Ct. Shamsher sent by SI Surender Singh. After registration of FIR, he made endorsement Ex.PW1/B on the rukka. PW7 HC Brahampal was MHC(M) on 18082010 when SI Surender Singh deposited with him Verna car with keys bearing number plate DL4CAH2892(original No.DL7CJ0199) and he made entry No.227 Ex.PW7/A in register no.19. He further deposed that on the same day SI Surender Singh had deposited with him three pullandas sealed with the seal of SS and also the FSL form and he made entry No.228 Ex.PW7/B in register no.19. On 21092010 vide RC No.130/21/10 Ex.PW7/C, he handed over Ct. Prem Chand three sealed pullandas and FSL form for deposit in FSL and made entry at point X in register no.19. Three pullandas alongwith FSL result were brought back in malkhana by Ct. Prem Chand and he made endorsement at point Y in register no.19. MHC(M) further deposed that vide RC No.110/21/10 Ex.PW7/E, on 29082010, the said car was transferred in the malkhana of PS Shahbad Dairy through SI Arun Kumar as relevant FIR No.89/10 was registered in the PS. Ct. Prem Chand, after deposit of pullandas and FSL form in the lab, handed over him receipt St. vs. Sarwan anr. 197/10 4 of 18 acknowledgement Ex.PW7/D. PW14 SI Arun Kumar deposed that he received information from PS Bawana on 18082010 about recovery of Verna car No.DL7CJ0199 wanted in FIR No.89/10 PS Shahbad Diary. He went MHC(M) PS Bawana on 29082010 and got the Verna car transferred to the malkhana of his PS Shahbad Dairy. He further deposed that as per the record of malkhana, Verna car was on superdari with the complainant of FIR No.89/10. Car has been identified as Ex.P7. PW17 HC Ishwar Dutt was posted as MHC(M) in PS Shahbad Diary on 290810 when SI Arun Kumar deposited with him Verna car No.DL7CJ0199 with keys vide RC No.107/21/10 Ex.PW7/E and he made entry No.497/10 Ex.PW17/A in register no.19. He further deposed that the said car was released on superdari on 30082010 to its registered owner. PW9 Ct. Prem Chand deposed that on 21092010, as per the instructions of the IO, he collected three sealed plastic containers and FSL form from MHC(M) and deposited the same at FSL Rohini and after deposit he handed over the receipt acknowledgement to the MHC(M). MHC(M) and pullanda carrier did not tamper with the case property until it was in their possession.
6. PW4 Inspt. Puran Panth is witness from the stage of receipt of secret information till the deployment of raiding team. He deposed that on 17082010 at 9.10 PM, a secret informer gave tip off to Ct. Naresh Tyagi in Special Staff that interstate gangster Sarwan alongwith his associate Neetu Jonti would come to the office of one Karambir in Bawana in white Verna car having Delhi no.2892 and from there they would come to DSIDC where St. vs. Sarwan anr. 197/10 5 of 18 they would rob cars in association with other gangsters. In the meantime, one more informer gave tip off to Ct. Praveen that members of Rajiv Kala and Manjit Mahal gang would rob cars near DSIDC and Bawana canal in association with two gangsters namely Sarwan and Neetu. He further deposed that information about the vehicles of the gang was that TATA Indica car was bearing Delhi No.6912 and Apache motorcycle was bearing No.8752. After discussing the information with senior officers, two raiding parties were constituted. Inspt. Ram Avtar, Addl. SHO PS Bawana was also intimated about the information and was requested to keep watch and deploy, some staff in civil clothes near the office of Karambir. Inspt. Ram Avtar was further requested to meet the police party near the stadium. After making all preparations, both parties left the office of Special staff in five private cars, four motorcycles with available arms, ammunition and bullet proof jackets at 9.30 PM vide DD No.9 Ex.PW4/A and reached the stadium. Inspt. Ram Avtar met them who intimated that there was no movement in or around the office of Karambir. Even Verna car was not traced near that office. Thereafter both police parties came to DSIDC Bawana and were positioned by him(PW4) and he returned to the office of Special staff.
PW12 ACP Ved Prakash proved the complaint Ex.PW12/A u/s 195 Cr. PC. PW16 Mr. Suvashish Chaudhary was Addl. DCP, Outer District on 08112010 when he accorded sanction Ex.PW15/B u/s 39 Arms Act as one improvised pistol of 9 mm bore with five life cartridges were recovered from accused Surender @ Neetu. On the same day he accorded sanction St. vs. Sarwan anr. 197/10 6 of 18 Ex.PW16/A u/s 39 Arms Act against accused Sarwan as a country made pistol of 12 bore with one live cartridge, one improvised pistol of 7.65 mm bore with four live cartridges were recovered from him. PW18 Dr. N.P. Waghmare is Assistant Director, Ballistic of FSL, Rohini, Delhi and he proved the ballistic report as Ex.PW15/C.
7. PW15 SI Samarpal Singh and PW8 Ct. Subhash reached the spot after apprehension of both accused and their evidence is identical in several aspects. PW15 deposed that inspt. Puran Panth, Incharge of Special staff, Outer District had informed inspt. Ram Avtar of PS Bawana on 170810 about secret information. They were told that officers of Special Staff were going to raid the office of Karambir and so they were also asked to reach there. He alongwith inspt. Ram Avtar, Ct. Pawan and Ct. Subhash reached near the office of Karambir and took positions there by hiding themselves but no movement was noticeable as Karambir's office was found locked. At 1.30 PM he received telephonic information that he was to further investigate the case arising from FIR No.197/10 and so he was asked to reach near CNG petrol pump, DSIDC, Sector4, Bawana. He went there in the company of PW8 Ct. Subhash and Ct. Pawan where SI Surender PW13 alongwith staff and accused met them. SI Surender produced before him both accused, three sealed pullandas, four seizure memos, three sketches, FSL form and Verna car. He inspected the site and prepared rough site plan Ex.PW15/A at the instance of SI Surender. In the meantime Ct. Shamsher reached the spot and handed him over original rukka and copy of FIR. He St. vs. Sarwan anr. 197/10 7 of 18 arrested accused Surender and Sarwan vide arrest memos Ex.PW3/A, Ex.PW3/B and personal search memos Ex.PW3/C and Ex.PW3/D respectively. Thereafter disclosure statements Ex.PW3/E and Ex.PW5/A of accused Surender and Sarwan were recorded. Case property was deposited with MHC(M) and exhibits were sent to FSL on 210910 through Ct. Prem Chand vide RC Ex.PW7/C and acknowledgement Ex.PW7/D. He applied for sanction u/s 39 Arms Act and collected the same from Addl. DCP office. Also, he collected complaint u/s 195 Cr. PC from the office of ACP Ved Prakash. He further deposed that as per the record of malkhana, Verna car was on superdari with the complainant of FIR No.89/10.
PW8 Ct. Subhash deposed that on 180810, he alongwith inspt. Ram Avtar and other staff, on receipt of secret information and to apprehend the accused, was present in front of Rajiv Gandhi Stadium near the office of Karambir. At that time i.e. at 1.30 PM SI Samarpal received a phone call from DO and so he alongwith Ct. Pawan went to SI Samarpal and from there they reached to the spot where several police officials alongwith both accused were present. SI Surender produced Verna car bearing fake number plate DL4CAH2892, before SI Samarpal. He deposed about the arrest, personal search and disclosure statements of both accused and that kind of testimony has already been discussed in the evidence of PW15.
8. PW13 SI Surender, PW6 HC Naresh Kumar, PW2 Ct.
Shamsher Singh, PW3 Ct. Rakesh, PW5 Ct. Amit, PW10 HC Devender and PW11 HC Narender are eye witnesses of firing on the police party and St. vs. Sarwan anr. 197/10 8 of 18 recovery of weapons and ammunition from the accused. PW13 is the first IO. He deposed that on 170810 he was posted in the Special Cell. On that day at 9.10 PM, HC Naresh Tyagi received tip off from informer that accused Sarwan and Neetu would come in white colour Verna car bearing fake Delhi No.2892, in the office of Karambir in Bawana and thereafter would commit robbery of vehicles on the strength of arms. Information was passed by HC Naresh to inspt. Puran Pant who briefed them about tip off. In the meantime one more informer told Ct. Praveen that some criminals would visit DSIDC Bawana for snatching vehicles. Informer revealed the names of those criminals as Manjeet Mehal and Rajeev Kala and vehicles as white Indica car and Aapache bike bearing false Delhi no. 6912 & 8752 respectively. Two raiding parties were constituted. One was headed by him and another by SI Deepak Malik. He further deposed that members of his party were Ct. Rakesh, HC Suresh, HC Surender, Ct. Shamsher, HC Narender, HC Suresh Meena, HC Ravel, Ct. Prem, Ct. Amit, Ct. Sandeep , Ct. Hari and HC Naresh. Team of SI Deepak Malik included Ct. Praveen, HC Abhimanyu, HC Virender, HC Jagdish, HC Balkishan, and some other constables. It is further deposed that both parties left the office of Special staff at 9.30 P.M in two Alto and one Santro cars and two private motorcycles. Secret informers and inspt. Puran Pant were also with them. They reached the stadium at Auchandi Road, Bawana at 10.00 PM. Office of Karambir was located nearby. Inspector Ram Avtar met them and told that he had already inspected the office of Karambir and that there was no St. vs. Sarwan anr. 197/10 9 of 18 movement of white Verna car in that area. They reached Sector4, DSIDC with inspt. Ram Avtar.
PW13 further deposed that barricades were erected on the road and 45 passersby were asked to join the investigation but they refused. An Alto car was positioned on the road going side by side with canal and Ct. Prem, Ct. Ravel and Ct. Suresh Meena were deputed in that car. HC Devanand and secret informer were positioned about 100 meters from them behind trees. Informer was asked to signal towards them after seeing the movement of vehicles of accused. An Indica car bearing registration No.6912 reached there at 10.45 PM in a very high speed and they tried to stop him but failed. Apache motorcycle also crossed the barricades in the similar fashion. First IO further deposed that a white Verna car No.2892 came 12 minutes after passing of the bike and the police party narrowed the barricades due to which the driver tried to reverse but struck the car in the pavement in the process. A person whose identity lateron came to be known as Sarwan alighted from the front left seat and fired a shot at HC Naresh and him but they bent forward saved themselves. He was overpowered by him, Ct. Rakesh and HC Naresh. Accused Surender @ Neetu, while alighting from the driver seat, fired at Ct. Amit and Ct. Shamsher. They also saved themselves and overpowered him. Sketch Ex.PW2/A of the pistol recovered from accused Surender @ Neetu was prepared. The pistol was found fitted with magazine having four live cartridges. One cartridge was there in the chamber. A fired shall by him St. vs. Sarwan anr. 197/10 10 of 18 was also recovered from the spot. Pullanda of these articles was prepared, seal of SS was affixed, serial no.1 was given to the pullanda and it was seized vide memo Ex.PW2/B. He further deposed that accused Sarwan was found holding a pistol of 7.65 mm having magazine containing three live cartridges and one live cartridge was inside the chamber. A fired shell was lifted from the spot. Sketch of pistol, live cartridges and empty case recovered from accused Sarwan was prepared and same is Ex.PW2/C. From the personal search of accused Sarwan, a dessi katta was also recovered and it was found containing a live cartridge. Sketch Ex.PW2/D of the live cartridge and katta recovered from Sarwan was prepared. Both pullandas were sealed with the seal of SS and were taken into possession vide memo Ex.PW2/E and Ex.PW2/F respectively. Serial Nos.2 and 3 were given to the pullandas of the articles recovered from accused Sarwan. Verna car was seized vide memo Ex.PW2/G. PW13 further deposed that he prepared rukka Ex.PW13/A and handed over the same to PW2 Ct. Shamsher to take the same for registration of FIR. PW2 Ct. Shamsher also affirmed that he went to PS Bawana with rukka and got the case FIR registered, returned to the spot and handed over rukka and copy of FIR to SI Samarpal Singh who was already present at spot. PW13 further deposed that both accused were arrested by SI Samarpal vide arrest and personal search memos Ex.PW3/A, Ex.PW3/B and Ex.PW3/C and Ex.PW3/D respectively.
9. DW1 Mr. Karamvir deposed that he is a property dealer doing business from premises No.A1/7, Prashant Vihar, Delhi. Before it, he was St. vs. Sarwan anr. 197/10 11 of 18 doing property business at small scale from his house itself. Police never visited the office to inquire facts about accused Sarwan and Nitu. Lastly, he deposed that these accused never used to visit his office.
10. APP argued that both accused are interstate gangster and are very desperate as they dared to fire at the heavily armed police party. He submitted that the prosecution has examined as many as 7 eye witnesses to the incident. Recovery of arms and ammunition from both accused is supported by Ballistic report. He lastly contended that white verna car has been proved beyond reasonable doubt a stolen property, with the help of register no.19.
On the other hand defence counsels argued that it is quite strange that two shots were fired by the accused but none hit the police party. It is also beyond comprehension that heavily armed police party did not fire a single bullet on the accused though the accused were the assailants. Neither police party nor accused sustained any injury.
11. Prosecution has failed to prove the case due to following reasons:
(i) Secret information was that both accused were sitting in the office of DW1 Karamvir and from there, they would come near Bawana canal where they would commit robbery of vehicles in association with gangsters of other gang. Prosecution did not examine said Karamvir and rather, he appeared in the witness box from the defence side. As per his testimony, he St. vs. Sarwan anr. 197/10 12 of 18 never run any office in the area deposed by police witnesses. Nowadays, he is doing business from A1/7, Prashant Vihar, Delhi. Before it, he was doing business from his house itself. It is pertinent to mention that he is resident of village Bawana. He stated on oath that police never visited his office in his village to inquire facts about accused Nitu and Sarwan. He gave the last blow by deposing that the accused never used to visit his office.
(ii) Sophisticated pistol of 7.65 bore was recovered from accused Sarwan. Improvised pistol of 7.65 mm was recovered from accused Surender. Dessi katta was recovered from the dub of Sarwan. Nine live cartridges and two empty cartridges were also covered. Police did not investigate the source of arms and ammunition.
(iii) Police has no explanation why crime team and local police official were not summoned at the spot before or after the encounter.
(iv) Arms recovered from accused might be having their finger prints but police did not lift finger prints from those arms and did not get them compared with the finger prints of the accused.
(v) When a person fires, some burnt or unburnt gun powder remains on the hand. No police official deposed about presence of such powder on the hands of any accused. There is no report from the Ballistic Division of FSL that the pistols of 7.65 mm recovered from both accused were having the presence of gun powder in their barrels.
St. vs. Sarwan anr. 197/10 13 of 18 (vi) The incident had taken place at 10.45 PM on the main road.
That road leads to Haryana and hence it is a busy road even in night time. It is the case of the police that they had asked 45 public persons to join the proceedings but they refused. No notice in writing was given to them and no action was taken against them. First IO PW13 did not note their names and addresses.
(vii) Secret information was to the effect that two interstate gangs would meet and commit robbery on the strength of heavy arms and ammunition and that is why police party was also heavily armed. Some recovery witnesses deposed that four members of the police team were armed with AK 47 and remaining officials were armed with sophisticated pistols. Four police officials were provided bullet jackets. Despite it, not a single shot was fired by the police party on the accused through one shot each was fired by both accused on the police officials.
(viii) Neither police officials nor accused sustained any injury.
(ix) No damage was caused to the police vehicles. About the Verna car of the accused, it has been deposed by eye witnesses and it was damaged but there is no mechanical inspection report to that effect.
(x) Eye witnesses deposed about the fake numbers and genuine numbers of the vehicles of the accused. There were five cars and four bikes in the police party. These vehicles belonged to the police officials but St. vs. Sarwan anr. 197/10 14 of 18 despite it no eye witness could remember the registration numbers of the vehicles of their associates.
12. DISCREPANCIES
(a) All recovery witnesses have different versions on the number of police officials in both teams. As per PW4, there were 17 police officials but PW2, PW3, PW5, PW6 and PW10 told their number as 11, 13, 15, 12 and 11 respectively.
(b) PW2 Ct. Shamsher deposed that informer was alone at the time of apprehension of the accused and was about 100 meters away from the place of occurrence. Version of PW3 is that informer was standing at a distance of 200 meters with HC Devanand.
(c) PW2 deposed in examination in chief that police party went to the spot in five cars but in crossexamination he deposed that there were only three cars two Alto and one Santro car. Story of PW6 is that there were five cars.
(d) PW2 deposed the number of bikes in the police party as two. But as per PW3, the number was four.
(e) About uniform PW2 deposed that none of the police official was in uniform. PW5 deposed that all police officials were in uniform. Version of PW6 is that all police officials were in civil dress.
St. vs. Sarwan anr. 197/10 15 of 18 (f) PW2 deposed that the photographer was not called at the spot
to take photographs of the accused and arms but PW5 deposed that photographer was called to click snaps. It is pertinent to mention that there is not a single photograph on the file about the place of occurrence.
(g) PW5, PW6 and PW11 deposed that an Alto car was parked near the barricade and three police officials were made to sit in the said car. That car has not been shown in the rough site plan.
(h) PW4 inspt. Puran Pant stated on oath that he had positioned the police officials on the spot as he was the incharge. He further deposed that after positioning of the raiding team, he left the spot. PW2 deposed that he was not aware of the position of PW4 at the time of occurrence. Version of PW5 is that raiding party was deployed by SI Surender PW13 and not by PW4.
(i) It is quite strange that both police parties were acting in the leadership of inspt. Puran Pant but he did not wait the arrival of the accused at the spot and went away from there.
(j) All eyewitnesses except PW13 SI Surender deposed that PW13 gave signal to the second party by blowing whistle after passing of Indica car and Apache bike. SI Surender did not say a single word on this issue.
(k) Prosecution case is that HC Devanand was deputed to give signal to the raiding team after seeing the vehicles of the accused but as per PW13, the signal was to be given by the informer.
St. vs. Sarwan anr. 197/10 16 of 18 (l) Prosecution case is that seal after use was handed over by PW13
to PW2 Ct. Shamsher Singh but both these witnesses did not depose as to whom seal was handed over. Moreover, they did not say if the seal was handed over to any police official by PW13.
(m) PW15 second IO SI Samarpal deposed that he prepared rough site plan at the instance of PW13 but PW13 did not say a single word about the rough site plan.
13. STOLEN PROPERTY Case of the prosecution is that white Verna car bearing fake Delhi number plate DL4CAH2892 was a stolen property. Further case is that its genuine number was DL1CJ0199. Initially the car was deposited in the malkhana of PS Bawana. Later it was transferred to the malkhana of PS Shahbad Dairy where FIR No.89/10 u/s 392, 397, 411 IPC was already in existence regarding the said car. As per register no.19 Ex.PW17/A, the car was released on superdari to the complainant. FIR No.89/10 was registered in Shahbad Dairy u/s 411 IPC also. It means that accused faced trial in that case regarding the stolen property i.e. white Verna car. They cannot be prosecuted again for the same offence.
In order to prove a property as a stolen property, the prosecution is required first to prove that possession of the property was by way of theft or robbery. That fact is to be proved by the owner of the property. Subsequent thereto, the prosecution is required to prove that the said St. vs. Sarwan anr. 197/10 17 of 18 property was recovered from the possession of the accused and it was identified by the owner. Prosecution did not examine the owner who may say that his car was stolen and later he got the said car on superdari after recovery from the accused. Only on the strength of register no.19 Ex.PW17/A and without any help from the owner of car No.DL7CJ0199, the prosecution has failed to prove the said car as stolen property.
14. In view of above discussion, prosecution has failed to prove the charges levelled against accused persons. So, accused persons are acquitted of the charges levelled against them. Their bail bonds, if any, be cancelled and surety, if any, be discharged. Endorsement if any, on the documents of surety be cancelled. File be consigned to recordroom.
Announced in the Open Court On 14 th day of March, 2014.
(UMED SINGH GREWAL)
ASJ/Special Judge (NDPS)
North Distt: Rohini Courts: Delhi
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