Delhi District Court
Fir No. 705/05; State vs . Manmohan & Anr. Page 1 Of 36 on 27 April, 2012
IN THE COURT OF SH. YASHWANT KUMAR : ADDL. SESSIONS
JUDGE03: NW: ROHINI: DELHI
SESSIONS CASE NO. 198/09
FIR No. 705/05
P.S. Adarsh Nagar
U/S: 186/353/307/34 IPC &
25/27/54/59 Arms Act
STATE
Versus
(1) Manmohan @ Vikkal @ Pahalwan
s/o Sh. Raja Ram
r/o village Mahavad, PS Dadri,
Distt. Gautam Budh Nagar, UP
(2) Satish Bansal
s/o Sh. Govind Ram Bansal
r/o G12, Gali No. 5,
West Arjun Nagar, Delhi
Date of Institution: 20022006
Date of arguments: 24042012
Date of judgement: 27042012
J U D G M E N T
1. The Prosecution case, in brief, is that on 23122005 at AntiExtortion Cell, Crime Branch at about 5 pm, SI Suresh Kumar FIR No. 705/05; State Vs. Manmohan & Anr. Page 1 of 36 received a secret information that Manmohan, wanted in many murders and attempt to murder cases in UP and Delhi, would come to meet someone at Azadpur Subzi Mandi. SI Suresh Kumar passed this information to Inspector Jasbir Malik and ACP Dr. Ashok Malik and on the instructions of ACP, a raiding party was organized under the supervision of Inspector Jasbir Malik comprising of 15 members and at about 6 pm they all reached All Heavens Restaurant in three vehicles. Inspector Jasbir Malik divided the raiding party in three groups. Under the supervision of Inspector Jasbir Malik the first team consisted HC Virender Singh, ASI Gyanender, Ct. Balwan and Ct. Sher Singh in Indica car; under the supervision of SI Suresh Kumar, second team consisted HC Anand, Ct. Krishan, Ct. Yudhvir and HC Lalit in Santro car and third team under the supervision of SI Jagdish consisted Ct. Sunil, Ct. Sanjay, Ct. Sunil and Ct. Subhash in Maruti Zen. The three members of the raiding party were in police uniform while the remaining were in civil dress. SI Suresh Kumar and ASI Gyanender requested public persons to join the raiding party but none agreed. The entire raiding party reached Azadpur Crossing, near PS Adarsh Nagar where informer met SI Suresh Kumar and told that Manmohan had come to Azadpur Subzi Mandi with another person in a black colour Honda FIR No. 705/05; State Vs. Manmohan & Anr. Page 2 of 36 City car. SI Suresh Kumar passed this information to Inspector Jasbir Malik and other members of raiding party. The raiding party in their respective vehicles took different directions and went inside Azadpur Subzi Mandi and at about 6:30 pm Ct. Sunil noticed the Honda City car coming out of Exit Gate of Mandi and he informed SI Suresh Kumar and other members of raiding party. The Honda City car turned towards the left for Outer Ring Road and after chasing Honda City car for about 1½ kms, Inspector Jasbir Malik overtook the Honda City car and stopped Indica car in front of Honda City car and made him to stop. ASI Gyanender Singh and Ct. Balwan got down from Indica car and asked Manmohan, who was driving the Honda City car, to surrender before the police. In the meanwhile, Maruti Zen and Santro cars also reached there.
2. It is also the case of the Prosecution that accused Manmohan got down from the driver seat of Honda City car and ran towards the right side and was chased by SI Suresh Kumar and Ct. Yudhvir. Accused Manmohan fired two shots at SI Suresh from his revolver but SI Suresh laid down flat on the road to save himself. Ct. Sunil and Ct. Yudhvir fired in the air and accused Manmohan bent forward on hearing the firing and before he could get up, he FIR No. 705/05; State Vs. Manmohan & Anr. Page 3 of 36 was overpowered by SI Suresh Kumar with the help of Ct. Yudhvir and Ct. Sunil and the revolver was recovered from his possession. On checking the revolver, it was found loaded with four live cartridges and two empty cartridges. SI Suresh Kumar prepared the sketch of the revolver and cartridges and they were measured. The revolver and cartridges were sealed with the seal of SK and thereafter seized. SI Jagdish Kumar apprehended the other occupant of Honda City car whose name was revealed as Satish Bansal and recovered a country made revolver with one cartridge from him. SI Suresh Kumar prepared the sketch of country made pistol and kept the same and cartridge in a pullanda and sealed the same with the seal of SK and thereafter it was seized. On search of Honda City car, three live cartridges were recovered from a cardboard box which was lying underneath the driver seat. SI Suresh Kumar prepared sketch of the recovered cartridges and kept them in cloth pullanda and sealed with the seal of SK and thereafter it was seized. Form FSL was filled up at the spot and rukka was prepared and FIR was got registered at PS through Ct. Yudhvir u/s 186/353/307/34 IPC and u/s 25/27/54/59 Arms Act. Thereafter, SI Naresh Solanki took over the investigation of the case and seized the said Honda City car and prepared the site plan on the pointing FIR No. 705/05; State Vs. Manmohan & Anr. Page 4 of 36 out of SI Suresh. Both the accused were arrested and their personal search was conducted. Both accused gave disclosure statements. After completion of investigation, chargesheet was filed in the court.
3. After compliance of Section 207 Cr.P.C., the case was committed to Sessions Court. Charge under Section 186/353/307/34 IPC was framed against both the accused and separate charges u/s 25/54/59 Arms Act against accused Satish Bansal and u/s 25/27/54/59 Arms Act against accused Manmohan @ Vikkal @ Pahalwan were framed to which they pleaded not guilty and claimed trial.
4. In order to prove its case, Prosecution examined 11 witnesses. Statements of accused u/s 313 Cr.P.C. were recorded wherein they denied all the allegations made against them. The accused did not opt to lead defence evidence.
5. I have heard the Ld. Defence counsel and Ld. APP for the State and have perused the entire records.
6. Let us discuss and examine the evidence led in this FIR No. 705/05; State Vs. Manmohan & Anr. Page 5 of 36 case. PW1 Inspector Suresh Kumar deposed that on 23122005, he was posted at AntiExtortion Cell, Crime Branch and on that day at about 5 pm, he received a secret information that accused Manmohan, wanted in many murder and attempt to murder cases in UP and Delhi, would come to meet someone at Azadpur Subzi Mandi. He conveyed this information to Inspector Jasbeer Malik and ACP Dr. Ashok Malik. On the instructions of Dr. Ashok Malik ACP, a raiding party was organized under the supervision of Inspector Jasbeer Malik consisting of 15 members. At about 6 pm, they reached All Heavens Restaurant in three vehicle. Three members of the raiding party were in police uniform and the remaining were in civil dress. He and ASI Gyanander asked public persons to join the investigation after narrating the facts but none agreed. Thereafter, the entire raiding party reached Azadpur crossing, near PS Adarsh Nagar where informer told him that Manmohan had come to Azadpur Subzi Mandi with one person in a black colour Honda City car. He gave this information to Inspector Jasbeer Malik and other members of the raiding party. All the three vehicles then took different directions and went inside Azadpur Subzi Mandi in search of black Honda City car. At about 6:30 pm, Ct. Sunil informed that he had seen a black colour Honda City car at FIR No. 705/05; State Vs. Manmohan & Anr. Page 6 of 36 the Exit gate of Subzi Mandi and the car had turned towards left for Outer Ring Road. All the three police vehicles also went in the said direction. After travelling a distance of about 1/1½ kilometre, the vehicle in which Inspector Jagbeer Malik was travelling blocked the way of Honda City car and other two vehicles came from behind of black Honda City car. ASI Gyanender and Ct. Balwan who were in police uniform got down from the vehicle which was in front of black Honda City car and went near the car. On seeing the police persons, the driver of the car started running towards right side. On seeing this, he along with Ct. Yudhvir followed the person who was running but the said person fired two shots towards him. In self defence, Ct. Sunil and Ct. Yudhvir also fired from service pistol. In the meanwhile, two other Constables namely Ct. Sunil and Ct. Sanjay who were in the other two vehicles also came there and they along with Ct. Yudhvir apprehended accused Manmohan with a loaded revolver. Hearing the gun shot, HC Rajinder of PS Adarsh Nagar also reached the spot. PW1 correctly identified the accused Manmohan in the court. In the meanwhile, SI Jagdish apprehended the other occupant of the car namely Satish Bansal (correctly identified by PW1).
7. PW1 further deposed that accused Manmohan was FIR No. 705/05; State Vs. Manmohan & Anr. Page 7 of 36 having a .32 bore foreign revolver. There were two fired cartridges and four live cartridges in the revolver. A country made revolver with one live cartridge was recovered from the possession of accused Satish Bansal. Three live cartridges in a small cardboard box were recovered from underneath the driver seat of black Honda City car. PW1 firstly prepared the sketch of revolver and recovered cartridges which is Ex. PW1/A. Thereafter, he prepared the pullanda of revolver and cartridges which were recovered from accused Manmohan and sealed with the seal of SK and seized vide seizure memo Ex. PW1/B. Thereafter, he prepared the sketch Ex. PW1/C of the country made pistol which was recovered from possession of accused Satish Bansal. The pullanda of country made pistol with one live cartridge was prepared and sealed with seal of SK and seized vide seizure memo Ex. PW1/D. Thereafter, the sketch of three live cartridges which were in cardboard box was prepared and they were converted into pullanda and sealed with the seal of SK and seized vide seizure memo Ex. PW1/E and its sketch Ex. PW1/F. Form FSL was filled up. Thereafter, he prepared the rukka Ex. PW1/G and sent the same to PS through Ct. Yudhvir for registration of FIR. Seal after use was handed over to HC Virender. After registration of FIR, Ct. Yudhvir came back at the spot. At FIR No. 705/05; State Vs. Manmohan & Anr. Page 8 of 36 about 9:29 pm, before sending the rukka, SI Naresh came to the spot as per the directions of senior officers and he handed over the investigation to SI Naresh along with all the documents, pullandas and accused persons. On pointing out of PW1, SI Naresh Kumar prepared the site plan Mark A. The black Honda City car was also seized vide seizure memo Ex. PW1/H. PW1 identified the revolver Ex. P1, live cartridges Ex. P2/12, dead cartridges as Ex. P3/14 which were recovered from accused Manmohan. The pistol Ex. P4 and one dead cartridge as Ex. P5 were recovered from accused Satish Bansal. PW1 also identified the cardboard box Ex. P6 and three cartridges as Ex. P7 (colly) which were recovered from underneath the driver seat and Honda City car bearing registration no. DL4C AB 0725 as Ex. P10 being driven by accused Manmohan and coaccused Satish Bansal was sitting in the car.
8. On the instance of SI Suresh Kumar, SI Naresh Kumar prepared the site plan and accused Manmohan and Satish were arrested vide memos Ex. PW2/A and PW2/B. Ct. Sunil Kumar and Ct. Yudhvir handed over the empty cartridge to SI Naresh Kumar which were taken into possession vide seizure memos Ex. PW2/C and PW2/D. Accused Manmohan and Satish made disclosure FIR No. 705/05; State Vs. Manmohan & Anr. Page 9 of 36 statements Ex. PW2/F and PW2/F respectively. Disclosure statement of accused Manmohan was recorded first. Honda City car was taken into possession vide memo Ex. PW2/H. Statement of PW2 was recorded by the IO. PW3 deposed that Ct. Sunil and Ct. Yudhbir handed over two empty cartridges measuring 1.9 cm to SI Naresh Kumar. IO prepared the sketch Ex. PW3/A of the dead cartridges. Accused Manmohan and Satish were arrested vide arrest memos Ex. PW2/A and PW2/B. Their personal search was taken vide memos Ex. PW3/B and PW3/C respectively. PW2 ASI Gyanender Singh, PW3 SI Jagdish Kumar, PW4 Ct. Sunil Kumar, PW6 HC Virender Singh and PW8 HC Yudhvir deposed almost on the same footings and supported the testimony of PW1.
9. PW9 Inspector Naresh Solanki deposed that on 23.12.2005, he was posted in AntiExtortion Cell, Crime Branch, R. K. Puram as an SI and at about 8.00 pm, he was asked by Inspector Jasbir Malik to reach Arihant Road, Adarsh Nagar for the investigation of this case. He reached at the spot at about 9.20 pm and took up the investigation of this case and seized a Honda City car bearing No. DL4CAB0725 from the spot vide memo Exbt. PW1/H. He then prepared the site plan Exbt. PW9/A on the FIR No. 705/05; State Vs. Manmohan & Anr. Page 10 of 36 pointing out of SI Suresh. Constable Sunil and Constable Yudhbir handed over the empty cartridges to him and he prepared the sketch Ex. PW3/A of those empty cartridges and then kept those cartridges in separate pullandas and sealed them with the seal of NS. They were then seized vide memos Exbt. PW2/C and Exbt. PW2/D respectively. Accused Manmohan and Satish (correctly identified by the witness) were arrested vide arrest memos Exbt. PW2/A and Exbt. PW2/B respectively and their personal search was conducted vide memos Exbt. PW3/B and Exbt. PW3/C respectively. He recorded disclosure statements of accused Exbt. PW2/E and Exbt. PW2/F respectively. Statements of witnesses were recorded. Accused were brought to the office of Anti Extortion Cell and the case property was deposited in the Malkhana of PS Adarsh Nagar. Accused were then produced in court on 24.12.2005. PW9 further deposed that on 25.01.2006, the exhibits were sent to FSL through HC Bani Singh. On completion of investigation, chargesheet was prepared and accused were sent to court for trial. He collected the FSL result Exbt. PW9/B and obtained sanction under Section 39 Arms Act and filed the same in court. The witness identified the empty cartridge Ex. P8 produced by Ct. Yudhbir; another empty cartridge Ex. P9 produced by Constable FIR No. 705/05; State Vs. Manmohan & Anr. Page 11 of 36 Sunil. In response to leading question put by Ld. APP for State, PW9 deposed that the empty cartridges given by Constable Sunil Kumar and Constable Yudhbir were kept in separate matchboxes and separate pullandas were prepared which were sealed with the seal of GS and not NS.
10. The Ld. Counsel for the accused has argued that the prosecution story is that the accused Manmohan fired two shots towards PW1 SI Suresh Kumar. The word "towards" deposed by PW1 is a vague term and it has to be corroborated with independent evidence. According to Section 307, the accused should have aimed firing at the police official. Therefore, ingredient of Section 307 IPC are missing. Moreover, the accused Satish Bansal remained in the car and was apprehended as per prosecution story these provisions of Section 186/353/307/34 IPC are not attracted against accused Satish. Further, the persons who were chasing the accused were not in police uniform.
In order that section 307 should be attracted, it is necessary to establish that if the victim would have met his death, the offence would have been one under section 302. There must be some overt act combined with evidence of mens rea. The burden is FIR No. 705/05; State Vs. Manmohan & Anr. Page 12 of 36 always on the Prosecution to prove, first the actus reus i.e. the accused had done something which in point of law marked the commission of offence and secondly the mens rea i.e. in taking this step, he was inspired by the intention to go on to reach a definite objective which would constitute a specific offence. The accused must do an act with such a guilt intention and knowledge and in such circumstances that but for some intervening fact the act would have amounted to murder in the normal course of events. The intention or knowledge must be such as is necessary to constitute murder. Without this, there can be no attempt to murder. The section may apply even if no hurt is caused. The causing of hurt is merely an aggravating circumstance and it cannot, therefore, be reasonably argued that unless an injury sufficient in the ordinary course of nature to cause death is inflicted on the victim, the intention contemplated by this section cannot be presumed. All that is necessary to be established is that intention with which the act is done and if once that intention is established, the nature of the act will be immaterial. There must be some change in the act to produce a different reason and the extent to which the act done must be supposed to be varied to produce the hypothetical death referred to in section 307 is merely a question of degree. For FIR No. 705/05; State Vs. Manmohan & Anr. Page 13 of 36 instance, where persons, pursued by the police, turned round and fired but nobody was hit as the revolver misfired, the offence would be one under section 307. If a man fires off a fireman while police officer is attempting to arrest him, the natural conclusion is that he is attempting to shoot the police officer. If the defence is that he had merely the intention of frightening the police officer by firing in the air, then the burden of proving that fact is on the defence. It depends upon the facts and circumstances of each case whether the accused had the intention to cause death or knew in the circumstances that his act was going to cause death. The nature of the weapon used, the intention expressed by the accused at the time of the act, the motive for commission of the offence, the nature and size of the injuries, the parts of the body of the victim selected for causing the injuries and the severity of the blow are important factor that may be taken into consideration in coming to a finding whether in a particular case the accused can be convicted of an attempt of murder. In the case of Sarju Prasad Vs. State of Bihar 1975 (1) Crl. LJ 766, the Hon'ble Supreme Court observed as under: "Penal Code (1860), Ss. 307 and 324 - Accused causing injury to A in a vital region with a knife - Fact that no vital organ of A has been cut would not by itself be sufficient to take the act of accused out of the purview of S. 307 - FIR No. 705/05; State Vs. Manmohan & Anr. Page 14 of 36 But in order to bring the offence home to accused the prosecution must establish that his intention was one of the three kinds mentioned in S. 300 - State of mind of accused has to be deduced from surrounding circumstances and motive would be a relevant circumstance."
11. Let us firstly examine whether any raiding party was organized and proceeded from Crime Branch, R. K. Puram to All Heavens Restaurant in three private cars by police personnel. PW1 in his crossexamination deposed that he received the secret information at about 5 pm. The distance between the office of Crime Branch, R. K. Puram and the spot is around 2223 kilometres. They were having three private vehicles with them. The Santro car was arranged by PW1 from his friend Devender Kumar. Ct. Yudhbir was driving the said Santro Car. PW2 in crossexamination deposed that he received information at about 5:15 pm regarding joining of his investigation in his cabin in this case. SI Suresh came to him in this regard and he stayed with him for one/ two minutes. They left the office immediately after his request to join the raiding party. The vehicle in which they had gone was Indica. The vehicle was arranged by SI Suresh and two other cars Santro and Zen were also with them. There were five police officials in the Santro car and five in the Zen car. Five police officials were also in the Indica car. FIR No. 705/05; State Vs. Manmohan & Anr. Page 15 of 36 PW2 along with Ct. Balwan and Ct. Subhash were in police uniform and other members of raiding party were in plain clothes. PW3 deposed in his crossexamination that they proceeded towards the place of incident at about 5:15 pm. PW3 boarded in the Maruti car driven by Ct. Sunil. The other two cars were Indica and Santro. The distance between the spot and the office of Crime Branch is about 2223 kilometres. PW4 deposed in his crossexamination that SI Suresh informed him to join the raiding party in their office at around 5 pm and he called him for the same. PW4 met SI Suresh in his room. PW6 in his crossexamination deposed that he came to know of the secret information at about 5 pm. SI Suresh came in the DO room where PW6 was present and called him in his room where he briefed about the secret information. PW6 remained in the room of SI Suresh only for five minutes. They left the PS at about 5:15 pm. The vehicle in which he was sitting was driven by Ct. Sher Singh. Ct. Yudhbir was driving the Santro Car and Ct. Sunil was driving the Maruti Zen car. PW4 and PW6 deposed that it took about 45 minutes in reaching All Heavens from the Crime Branch office. PW8 HC Yudhbir deposed in his cross examination that he got he information from Ct. Sunil that a raid was to be conducted and SI Suresh Kumar had called him at around 5 pm. PW8 further FIR No. 705/05; State Vs. Manmohan & Anr. Page 16 of 36 deposed that in the vehicle driven by him, there was no public person and only police personnel were present. The distance between his office and All Heavens was approximately 20 kilometres. PW8 also deposed that throughout the raid, he drove the said car. PW2, PW4, PW6 and PW8 denied the suggestion that they never joined the investigation. It emerges from the above crossexamination of PWs that PW1, PW2, PW3, PW4, PW6 and PW8 have proved that upon the receipt of secret information, a raiding party consisting of 15 police personnel was organized which proceeded from their Crime Branch office, R. K. Puram to Azadpur Subzi Mandi in their private vehicles i.e. Indica, Santro and Maruti Zen and reached at the spot which is at a distance of 2023 kilometres from their office. It took about 45 minutes time to reach All Heavens from Crime Branch office. The Santro car was driven by HC Yudhbir, Maruti Zen by Ct. Sunil and Indica by Sher Singh.
12. Let us secondly examine whether the police personnel further proceeded in their cars from All Heavens Restaurant to the spot and stopped the car of the accused persons. PW1 deposed in his crossexamination that all the vehicles had stopped at All Heavens Restaurant before reaching the spot. Thereafter, all the FIR No. 705/05; State Vs. Manmohan & Anr. Page 17 of 36 vehicles got separated and then again gathered at the spot. The spot is on the road leading towards Azadpur to Mukund Pur. They reached at the spot within 45 minutes from All Heavens. PW4 deposed in his crossexamination that they remained at All Heavens for only five minutes. It took about one hour to reach at the spot from All Heavens. The police party which was sitting in Indica car in the police uniform gave signal to the accused persons to stop their vehicle. PW6 in his crossexamination deposed that all the vehicles reached simultaneously at All Heavens. They stopped for ten minutes at All Heavens. The cars were stopped on the roadside after crossing the red light. It took about 45 minutes in reaching the spot from All Heavens. The second police vehicle stopped at the spot within half minute of first vehicle. The third vehicle also reached within half minute at the spot. The vehicle of the accused was got stopped by waving hand by the police team. PW8 deposed in his crossexamination that their vehicles were stopped before the red light in front of All Heavens Restaurant. The vehicle of accused persons was got stopped with the help of Indica car. Vehicle of PW8 stopped after the vehicle of accused persons. The other police vehicle was parallel to his vehicle but on the left side. It took him approximately one minute to got down from the car. All occupants FIR No. 705/05; State Vs. Manmohan & Anr. Page 18 of 36 of the car took the same time to deboard their car. In view of the above crossexamination of PW1, PW4, PW6 and PW8, it is further proved that all the aforesaid vehicles stopped at All Heavens and thereafter separated from that place and reached at the spot about 45 minutes from All Heavens and after given the signal, the car of the accused persons was stopped with the help of Indica car.
13. Let us thirdly examine whether the police personnel after stopping the car of the accused, chased the accused Manmohan who fired two shots upon PW1 and then the accused were apprehended and one revolver and one country made pistol and cartridges were recovered from them and proceedings were recorded at the spot. PW1 deposed in his crossexamination that immediately after stopping the Honda City car, he along with Ct. Sunil, Ct. Yudhbir went in the right side of the car. PW1 deposed in his examination in chief, on seeing the police persons, the accused Manmohan started running towards right side. PW1 along with Ct. Yudhbir followed him who fired two shots towards PW1. In self defence, Ct. Sunil and Ct. Yudhbir also fired from service pistol. PW1 in his crossexamination also deposed that he apprehended accused Manmohan Singh from Arihant Marg, Azadpur from the FIR No. 705/05; State Vs. Manmohan & Anr. Page 19 of 36 road with the help of other police staff. PW1 himself recovered two empty cartridges from the revolver. They remained at the spot for about 56 hours. The writing work was done on the bonnet of Indica car. PW1 started the writing work at around 7 pm and completed the same at around 9:30 pm. PW1 also deposed that he did not inform the local police regarding the secret information. However, PW1 volunteered that it was not necessary to inform them. PW1 did not inform the local police station regarding the apprehension of the accused but local police came at the spot of their own. They were joined in the investigation. PW1 denied the suggestion that no proceedings were conducted in the manner as stated by him in his examination in chief. PW1 further denied the suggestion that nothing was recovered at the instance of accused. PW1 also denied the suggestion that all the proceeding were conducted while sitting in the office of Crime Branch. PW2 in his crossexamination deposed that accused ran after crossing the divider. The accused were nabbed within 5 to 7 minutes on reaching the spot. Revolver was recovered from the hand of the accused Manmohan by SI Suresh. From other accused, country made pistol was recovered when he was sitting in the car. PW2 chased the accused Manmohan. SI Jagdish nabbed accused Satish Bansal. Statement FIR No. 705/05; State Vs. Manmohan & Anr. Page 20 of 36 of PW2 was recorded on the same day at the spot. Local police came at the spot after hearing firing incident. Accused were made to stand outside the vehicles at the time of writing work. PW2 was standing just near the police official who was doing writing work. The last writing work was done regarding his statement u/s 161 Cr.P.C. and 10 to 15 minutes were taken in recording his statement. The documents prepared at the spot were signed by PW2, Ct. Sunil, SI Suresh, SI Jagdish and Ct. Yudhbir. They remained at the spot for about 5½ hours. PW2 denied the suggestion that nothing was recovered from the possession of accused Manmohan or accused Satish Bansal. PW2 further denied the suggestion that no proceedings were conducted in the manner as deposed by him. PW2 also denied the suggestion that accused were compelled to sign blank papers and later on it were fabricated to falsely implicate the accused.
14. PW3 in his crossexamination deposed that accused Satish Bansal was apprehended immediately after stopping of the Honda City car. The other accused namely Manmohan was apprehended after about 45 minutes. At the time of apprehending of the accused persons, PW3 was standing on the left side of the FIR No. 705/05; State Vs. Manmohan & Anr. Page 21 of 36 Honda City car. First of all, the sketch of the revolver and the cartridges recovered from accused Manmohan was prepared and the last document prepared was disclosure statements of accused persons. They remained at the spot throughout the proceedings. They remained at the spot for about five hours. Local Police was not informed. However, PW3 volunteered that HC Rajender from PS Adarsh Nagar had reached at the spot. He was asked to join the investigation and he remained there during the remaining proceedings. PW3 denied the suggestion that nothing was recovered from the possession or at the instance of accused persons. PW3 further denied the suggestion that all the writing work was done while sitting in the PS. PW4 in his crossexamination deposed that the car of the accused was forced to stop near the divider after overtaking from the left side. After coming out from Zen car, PW4 immediately rushed towards the accused persons and apprehended accused Manmohan. It took about 5 to 7 minutes in nabbing accused Manmohan. During 57 minutes, PW4 had stopped as well as ran behind accused Manmohan. PW4 chased accused Manmohan for a distance of about 30 feet. The accused was brought to the side of the road after nabbing him. PW4 and Ct. Yudhvir made one fire each in the air. The car of the accused was FIR No. 705/05; State Vs. Manmohan & Anr. Page 22 of 36 searched in his presence immediately after his apprehension. They remained at the spot for about five hours. The first writing work was done regarding preparing sketch of weapon recovered from the accused. PW4 was holding accused Manmohan when IO was doing writing work on the bonnet of the vehicle. The disclosure statement of the accused persons were also recorded on the bonnet of the car. The statement of PW4 was recorded at the spot at about 10:30 pm. Statement of SI Suresh was recorded prior to him and after him, statements of Yudhvir, Jagdish and Gyanender were recorded. SI Naresh recorded statement of all the witnesses within 20/ 25 minutes and he had used carbon while recording statements. Statements of the accused were also recorded after recording their statements. The last document prepared by IO was regarding recording statement of the accused persons. PW4 had signed three documents. Besides PW4, two other officials had signed those documents. Other documents were signed by SI Gyanender, SI Jagdish and Ct. Yudhvir along with IO. Accused Manmohan was made to sit in the Zen car while leaving the spot and PW4 was driving the Zen car. The physical custody of accused Manmohan was with Ct. Sanjay and one other Constable whose name he did not remember at the time of his deposition. PW4 deposed that FIR No. 705/05; State Vs. Manmohan & Anr. Page 23 of 36 however Ct. Yudhvir left with rukka for PS at about 9:30 pm in Santro car alone. PW4 denied the suggestion that he never joined the investigation in the present case or that signatures of accused were obtained on blank papers or that same were misused for fabrication of the documents. PW4 further denied the suggestion that nothing was recovered from the possession of accused persons or from the car and arms were planted on the accused persons. PW5 in this regard deposed that he brought a rukka sent by SI Suresh Kumar on which basis, he registered the FIR no. 705/05 u/s 186/353/307/34 IPC and 25/27/54/59 Arms Act which is Ex. PW5/B and the endorsement made on the rukka as Ex. PW5/A.
15. PW6 in his crossexamination deposed that there was only one middle pavement on the road and after crossing the same, the accused were nabbed. PW6 reached near the vehicle of the accused within 10 seconds at the spot from coming down of the police vehicle and simultaneously all the members of their vehicle also reached there. Statement of PW6 was also recorded while standing by keeping the papers on bonnet of Indica car. SI Naresh conducted writing work on the bonnet of Indica car and throughout the proceedings, PW6 remained at the spot. PW6 denied the FIR No. 705/05; State Vs. Manmohan & Anr. Page 24 of 36 suggestion that he never joined investigation of the case and nothing was recovered from the accused persons. PW8 deposed in his crossexamination that vehicle of the accused persons was got stopped with the help of Indica car. Accused Manmohan was apprehended after chasing 3040 feets. The accused was apprehended on the road on the opposite direction. The writing work was done by the IO on the bonnet of the car. PW8 also denied the suggestion that he did not join investigation in the present case. PW9 denied the suggestion that he has not conducted the inquiry in fair and proper manner. It emerges from the aforesaid testimony of PWs that accused Manmohan fired two shots towards PW1, two empty cartridges were recovered from the revolver, the other accused Satish Bansal was also having a pistol which was recovered from him at the spot, the accused were apprehended with the weapons at the spot, the documents were also prepared at the spot, accused were also present at the time of writing of the documents at the spot and the testimony of PWs have corroborated each other except minor contradictions. The coaccused Satish Bansal was sharing the common intention upon being present of the place of occurrence with the possession of a pistol and the other accused Manmohan fired two shots towards PW1 which has been FIR No. 705/05; State Vs. Manmohan & Anr. Page 25 of 36 proved by way of evidence on record on behalf of Prosecution that the accused persons intended to cause death of PW1.
16. The Ld. Counsel for the accused has further argued that there are material contradictions in the testimony of PWs which go to the root of the case and on this ground, the Prosecution case falls down. Whereas the Ld. APP for the State has argued that there is no contradictions in the testimony of PWs. The accused cannot get the benefit of the minor contradictions in the statement of PWs, if any. In this regard, the Ld. APP for the State has relied upon the judgement reported as State of UP Vs. Krishna Master & ors. 2010 Cri. L. J. 3889, it was held by the Hon'ble Supreme Court that minor discrepancies, not touching core of case, cannot be ground for rejection of evidence in entirety. It was further held that minor omissions in police statement never considered to be fatal. In my considered view, if minor contradictions in the testimony of PWs are there, it does not shake the basic version of Prosecution case. Therefore, undue importance to such minor contradictions cannot be given if the other materials and evidence are there on record to corroborate the testimony of the witnesses on behalf of the Prosecution. In the present case, although there are some FIR No. 705/05; State Vs. Manmohan & Anr. Page 26 of 36 contradictions in the testimony of PWs but these contradictions are minor and do not go to the root or core of the case.
17. The Ld. Counsel for the accused has also argued that no appropriate steps were taken by the police to join independent or public witnesses, therefore, nonjoining of the public witnesses in the investigation is fatal to the Prosecution case. During cross examination, PW4 deposed that very few people passed from the spot during the time they remained there. PW6 also deposed in his crossexamination that there was not heavy traffic on the road at that time. It is pertinent to mention here that the public persons are reluctant to become witnesses of criminal trial. Therefore, law is not that testimony of police officers is absolutely untrustworthy or that it can never be acted upon. It has been held in a catena of judgements by the Hon'ble Supreme Court and Hon'ble High Court of Delhi that merely because public witnesses are not joined in a case, the Prosecution case cannot be thrown out. In such circumstances, no benefit can be given to the accused for not joining of independent public witnesses. In this context, a reliance can be had upon the judgements reported as State of UP Vs. Anil Singh AIR 1988 SC 1998; Ambika Prasad & Anr. Vs. State 2002 (2) FIR No. 705/05; State Vs. Manmohan & Anr. Page 27 of 36 Crimes 63 (SC); Dr. Krishna Pal & Anr. Vs. State of UP 1996 (7) SCC 194. Further, there is no principle of law that without corroboration by independent witnesses, testimonies of police officials cannot be relied upon. The presumption that a person acts honestly applies as much in favour of police personnel as to the other person. Thus, it would not be a proper judicial approach to distrust and suspect the testimonies of police officials without good grounds. The statements made by the police officials as witnesses should be given same weight as statements made by other witnesses. In this context, a reliance can be held upon the judgments reported as Karamjit Singh Vs. State (Delhi Administration), AIR 2003 SC 1311 and Ritesh Kumar Vs. State of Goa, 2006 Cri. LJ (NOC) 61 (Bom).
18. The Ld. Counsel for the accused has further argued that where the case property remained for 33 days and who was the custodian of the case property. Moreover, no witness examined to prove that case property remained in proper custody. There is no explanation in Prosecution evidence for such delay. According to the Ld. Counsel for the accused, PW1 has not uttered a single word about it. There is no mention of FSL form. The FSL form with the FIR No. 705/05; State Vs. Manmohan & Anr. Page 28 of 36 seal has to be tallied with the case property and that part is missing which is the lacuna and resulted to fatal of the Prosecution case. Even there is no forwarding letter in this regard. The Ld. Counsel for the accused has relied upon the judgement reported as Vinod Vs. State, 2010 (1) JCC 754. Whereas, the Ld. APP for the State has argued that FSL report dated 29122006 Ex. PW9/B reveals that seal was intact. PW1 in his examination in chief deposed that Form FSL was filled up. The case property i.e. Revolver Ex. P1, live cartridges Ex. P2/12, dead cartridges Ex. P3/14, pistol Ex. P4, dead cartridge Ex. P5, cardboard box Ex. P6, three cartridges Ex P7, matchbox containing dead cartridge Ex. P8, one dead cartridge Ex. P9 and the Honda City car no. DL4CAB0725 were produced in the court which were identified by PWs. PW7 HC Bane Singh, 92 Crime, AntiExtortion Cell categorically deposed in his examination in chief that on 25012006, he was posted as HC in AntiExtortion Cell, R. K. Puram and on that day, he took three sealed pullandas from the Malkhana of PS Adarsh Nagar and deposited them at FSL Rohini. PW7 also deposited the samples at FSL office and the receipt of the same was handed over to MHCM. PW7 further deposed that so long as sealed pullandas remained in his custody,he did not temper the same. It is pertinent to mention FIR No. 705/05; State Vs. Manmohan & Anr. Page 29 of 36 here that despite opportunity given, there was no crossexamination on the aforesaid testimony of PW7. PW9 Inspector Naresh Solanki deposed in his examination in chief that on 25012006, the exhibits were sent to FSL through HC Bane Singh. PW9 collected the FSL report dated 29122006 Ex. PW9/B. Therefore, I hold that it has been proved by the Prosecution that case property was in proper custody and the seal of the case property was intact as per the FSL report Ex. PW9/B.
19. The accused Satish Bansal in his statement u/s 313 stated that he was lifted from Badarpur Border while he was going to a Mandir situated at Math near Mathura for religious purposes with four other persons at about 10 am and made to sit in the office of AntiExtortion Cell, R. K. Puram and during night time, he was falsely implicated in the present case. Other persons who were with him, were allowed to go after negotiations with the police officials. He met accused Manmohan in the lock up and then only he came to know that Manmohan was made his coaccused in this case. He is a businessman at Krishna Nagar, Delhi. He knew a person namely Ajay Arora @ Sonu s/o late Sh. Kishan Lal r/o H. No. 13/406, Geeta Colony who had borrowed a sum of Rs. 1213 lacs from him and FIR No. 705/05; State Vs. Manmohan & Anr. Page 30 of 36 when he demanded his money back, Ajay Arora managed with the police officials and got him falsely implicated in the present case. I have perused the records and found that the accused Satish Bansal has neither filed any complaint against the police officials before the higher police officials nor produced any witness or document in his defence evidence. Therefore, I hold that the accused Satish Bansal has given the bald statement u/s 313 Cr. P.C. in this regard.
20. PW10 deposed that after perusal of the documents of this case, he accorded sanction Ex. PW10/A u/s 39 Arms Act for prosecution of the abovementioned two accused persons u/s 25/27 of the Arms Act, 1959. PW11 also deposed that after examining the documents of the present case, he made a complaint Ex. PW11/A u/s 195 Cr. P. C. for the offence u/s 186/ 353/ 307 IPC and 25/27 Arms Act and same was filed in the court of Ld. ACMM Sh. G. P. Singh at Rohini Court, Delhi.
21. In view of my aforesaid discussion, I am of the considered opinion that Prosecution has been able to prove its case against the accused persons beyond reasonable doubt. I, therefore, hold both the accused namely Manmohan @ Vikkal @ Pahalwan FIR No. 705/05; State Vs. Manmohan & Anr. Page 31 of 36 and Satish Bansal guilty and convict them u/s 186/353/307/34 IPC. Accused Manmohan is further convicted for the offence u/s 25/27/54/59 Arms Act and accused Satish Bansal is also convicted for the offence u/s 25/54/59 Arms Act.
(YASHWANT KUMAR) ADDL. SESSIONS JUDGE:NW03:ROHINI:DELHI.
ANNOUNCED IN THE OPEN COURT ON 27042012 FIR No. 705/05; State Vs. Manmohan & Anr. Page 32 of 36 IN THE COURT OF SH. YASHWANT KUMAR : ADDL. SESSIONS JUDGE03:NW:ROHINI:DELHI SESSIONS CASE NO. 198/09 FIR No. 705/05 P.S. Adarsh Nagar U/S: 186/353/307/34 IPC & 25/27/54/59 Arms Act STATE Versus (1) Manmohan @ Vikkal @ Pahalwan s/o Sh. Raja Ram r/o village Mahavad, PS Dadri, Distt. Gautam Budh Nagar, UP (2) Satish Bansal s/o Sh. Govind Ram Bansal r/o G12, Gali No. 5, West Arjun Nagar, Delhi Order On sentence
1. Arguments have been heard from Ld. Defence counsel as also from Ld. APP for State. Ld. Defence counsel has argued that there is no injury to anyone. The convict Manmohan has two children, one aged about 11 years and other aged about 9 years and he is the sole bread earner of FIR No. 705/05; State Vs. Manmohan & Anr. Page 33 of 36 his family and has to look after his old aged parents. Moreover, he has to look after his sister who is having four daughters and one son. The other sisters and sons are minor. On behalf of convict Satish Bansal, the Ld. Counsel has argued that he has not given any fire shot as he was sitting in the car. The convict Satish Bansal is suffering from serious ailments and in this regard photocopies of documents of his medical treatment have also been filed. He has two sons and one daughter of marriageable age. The mother of convict Satish Bansal is also aged and is under continuous medical treatment, copies of documents of her medical treatment also filed. The Ld. Counsel for convicts has further argued that lenient view be taken against the convicts and the convict Satish Bansal be given the benefit of Probation of Offenders Act, 1958. The Ld. Counsel for convicts, in support of his arguments has relied upon the judgements reported as Khem Chand Vs. State, 32 (1997) DLT (SN) 57; Jaswant Singh & Anr. Vs. State DRJ, 1992 (22); Daljit Singh Vs. State of Punjab, 1999 (1) RCR (Criminal) 57; 1999 (1) AICLR 189; Robil Shah & others Vs. State, 2005 Cri. L.J. 2630; Sayam Singh @ Sonu Vs. State, Crl. Appeal No. 142/01 date of FIR No. 705/05; State Vs. Manmohan & Anr. Page 34 of 36 decision 15122008 (DHC).
2. The Ld. APP for State has argued that convicts should be given appropriate sentence as per law. In support of his arguments, he has relied upon the judgement Karamjit Singh Vs. State of Punjab, Crl. Appeal no. 958 & 959 of 2004 (SC).
3. In the present case, the convict Manmohan fired two shots towards PW1 but bullet misfired and the other convict Satish Bansal was also found in possession of pistol with him at the spot. Therefore, the convict Satish Bansal cannot be given benefit under the Probation of Offenders Act in such offence. However, the fact that gun shot did not hit PW1 aimed at could be mitigating circumstance in reducing the sentence for a conviction u/s 307 IPC. In view of the above arguments of the Ld. Counsel for the convicts and the Ld. APP for State as well as the judgements relied upon by them and considering the totality of the facts and circumstances of the case, both convicts are sentenced with three months Rigorous Imprisonment u/s 186/34 IPC; one year Rigorous Imprisonment u/s 353/34 IPC; three years Rigorous FIR No. 705/05; State Vs. Manmohan & Anr. Page 35 of 36 Imprisonment u/s 307/34 IPC with fine of Rs. 2,000/ each, in default of payment of which they shall undergo 6 months SI. Convict Manmohan is also sentenced with three years Rigorous Imprisonment u/s 25/27 Arms Act with fine of Rs. 2,000/, in default of payment of which he shall undergo 3 months SI. Convict Satish Bansal is also sentenced with one year Rigorous Imprisonment u/s 25 Arms Act with fine of Rs. 1,000/, in default of payment of which he shall undergo SI for 2 months. All the sentences shall run concurrently. Convicts shall get benefit of section 428 Cr. P. C. for the period during which they remained in custody during investigation/ trial. Copy of judgement and order on sentence be given to the convicts free of cost. File be consigned to Record Room.
(YASHWANT KUMAR) ADDL. SESSIONS JUDGE:NW03:ROHINI:DELHI.
ANNOUNCED IN THE OPEN COURT ON 11052012 FIR No. 705/05; State Vs. Manmohan & Anr. Page 36 of 36