Delhi District Court
State vs ) Samunder @ Surender Khatri on 12 March, 2008
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IN THE COURT OF SH. NARINDER KUMAR
ADDL. SESSIONS JUDGE, FAST TRACK COURTS,
ROHINI : DELHI
S.C. No. 96/2 (RBT)
Date of institution of the case: 22/12/2006
Date for reservation of Order: 12th of March, 2008
Date of Decision: 12th of March, 2008
State
Versus
1) Samunder @ Surender Khatri
S/o Sh. Prahlad Singh
R/o Village Pana Mamurpur,
Narela, Delhi
2) Harkesh @ Munna
S/o Sh. Rajan Singh @ Lallan Singh
R/o H.No. E-33, Aman Vihar,
Kailash Vihar, Sultanpuri,
Delhi .
FIR No. 398/2005
Police Station: Bawana
Under Section: 186, 353, 307 r.w. S.34 IPC
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JUDGMENT
First The Facts Samunder @ Surender and Harkesh @ Munna, both accused, were sent up for trial for offences u/s 186, 353 and 307 IPC read with Section 34 IPC on the allegations that on 08/10/2005 at about 01:45 a.m., on Barwala Road near office of Shiv Shakti Property, Pooth Khurd, within the jurisdiction of Police Station Bawana, both of them came on motorcycle No. HR-13A-5408- Harkesh @ Munna was driving the motorcycle while Samunder was riding the pillion
-and when out of the two teams headed by ACP Joy Tirkey and SI Jitender, holding picket at the aforesaid place on the basis of secret information, the latter signalled them to stop after giving a push to constable Veer Pal, the accused persons took the motorcycle ahead; that Harkesh accused instigated his co-accused Samunder to open fire and thereupon Samunder accused opened fire from a country made pistol, at the police party.
Aaccused persons were apprehended.
Samunder accused was found in possession of a country made pistol. On unloading the pistol, one empty was -:3:- recovered from it and two live cartridges of .315" bore were recovered from the right side pocket of pant of Samunder accused.
Ruqqa was sent from the spot to police sation which led to registration of this case. Proceedings were conducted at the spot. Statements of witnesses were recorded. The firearm and the ammunition were sent to FSL for analysis.
Sh.Anil Kumar Lal, ACP, prepared complaint u/s 195 Cr.P.C. for prosecution of the accused for an offence u/s 186 IPC. Sh. Tejinder Luthra, the then DCP (Crime & Railways) accorded sanction for prosecution of the accused.
On completion on investigation, challan was put in court.
After compliance with provisions of section 207 Cr.P.C. , case came to be committed to the Hon'ble Court of Session.
Prima facie case having been made out, charge for offences u/s 186, 353 and 307 IPC read with Section 34 IPC was framed against both the accused.
Since accused persons pleaded not guilty and claimed trial, prosecution was called upon to lead evidence. -:4:- Prosecution Evidence In order to prove its case, prosecution examined following 14 witnesses:
PW7 Constable Jai Singh has proved recording of DD No. 4 - Ex.PW7/A regarding receipt of secret information and DD No. 5 - Ex.PW7/B regarding departure from the office of Crime Branch.
PW11 ASI Asha Devi has proved recording of DD No. 9 - Ex.PW11/A on 08/10/2005 at about 02:15 p.m. on the basis of information received from wireless operator that a quarrel had taken place in between Barwala and Pooth Khurd and that firing was going on.
PW2 ASI Ram Kumar, who took over investigation from Inspector Jitender Singh. has deposed about the investigation conducted by him.
PW4 Sunil Kumar has deposed that about 5/6 months prior to making of his statement in court (statement was recorded on 22/07/2006), Harkesh accused borrowed from his motorcycle make Boxer City bearing registration No. HR-13A-5408 and that one month thereafter he came to know that his motorcycle had been deposited in Police Station Bawana, and that is how he got the same released on -:5:- superdari.
PW3 Sh. K. C. Varshney is the Senior Scientific Officer who examined the country made pistol, two live cartridges and one empty, and submitted report EX.PW3/A. PW1 Anil Kumar Lal, ACP, has proved Ex.PW1/A, filed u/s 195 Cr.P.C. for prosecution of the accused persons for the offence u/s 186 IPC.
PW13 Tejinder Singh Luthra , the then DCP, has proved sanction Ex.PW13/A accorded for prosecution of the accused for the offence u/s 25 of Arms Act.
PW6 Head Constable Mahender has deposed about deposit of one sealed parcel and FSL form with him in the Maalkhana on 18/10/2005 by ASI Ram Kumar. He also deposed about delivery of the sealed parcels and the FSL form to PW12 constable Heera Singh, for its delivery at FSL Rohini.
PW5 Head Constable Ranjeet has proved recording of FIR Ex.PW5/B on the basis of ruqqa received at the police station on 08/10/2005 at 10 p.m. through constable Ved Prakash.
PW9 Head Constable Vijender, PW10 Inspector Jitender and PW14 Head Constable Veer Pal (then -:6:- constable) have deposed about the manner in which the occurrence took place.
Defence Plea When examined u/s 313 Cr.P.C. the accused persons denied all the incriminating circumstances appearing in evidence against them and claimed false implications after having been picked up from their houses.
Despite opportunity accused persons opted not to lead evidence in defence.
Arguments heard. File perused.
Contentions Occurrence is alleged to have taken place on 08.10.2005, at about 1.45 p.m, in which accused Samunder @ Surender is stated to have opened fire at the police party and after he was nabbed, he was found in possession of a countrymade pistol, two live cartridges and one empty. They are also stated to have made disclosure statements during interrogation regarding their involvement in another case and also to the effect that they were going to commit a crime on that date.
Learned Addl. PP has referred to statements of PW9 HC Vijender, PW10 Inspector Jitender and PW14 HC -:7:- Veer Pal submitted that prosecution case against both the accused stands duly established, and as such, they are liable to be convicted and sentenced.
Learned Addl. PP further submitted that statement of PW2 ASI Ram Kumar having been subjected to cross examination and the deposition of PW9, PW10 and PW14 having been recorded after about one and half year, the accused persons cannot take advantage from whatever minor contradictions have appeared in their statements.
On the other hand, learned defence counsel has referred to the statements of PW2, PW9, PW10 and PW14 and submitted that there are material contradictions in these statements which create doubt in the version of prosecution regarding the manner in which the occurrence is alleged to have taken place.
Learned defence counsel further submitted that this is a case in which no witness from the public was associated despite opportunity, and that in absence of corroboration from independent source, the contradictions available in the statements of the police officials, further create doubt in the version of prosecution.
It has also been contended by learned defence -:8:- counsel that PCR staff is stated to have reached the spot and removed Constable Veer Pal to the hospital, but the investigating officer did not take any step to examine any member of the PCR staff.
Learned defence counsel has also pointed out that the contents of MLC of Constable Veer Pal are not in consonance with the ocular account narrated by the Head Constable regarding the injuries suffered by him which further create doubt in the prosecution version.
It has also been contended that during investigation, no logbook of any of the police vehicles was seized to lend corroboration to the oral testimony, and as such, no reliance should be placed on the statements of the police officials who are highly interested in the success of their case.
Discussion Occurrence is alleged to have taken place at about 1.45 p.m. on main Pooth Barwala Road near the office of Shiv Shakti Property, Pooth Khurd, Delhi. As per prosecution version, picket was held by two teams of crime branch, one of which was headed by SI Jitender Singh and the other by ACP Sh. Joy Tirkey. Distance between the two -:9:- teams was of about 100 yards at the time they were holding picket.
The person who passed on information to Crime Branch about Samunder accused is not made a witness, though he opted to remain with the police in presence of the accused.
The aforesaid picket is stated to have been held on the basis of secret information which was received at about 11 a.m. by HC Vijender. PW9 HC Vijender has deposed about receipt of secret information at his office in Prashant Vihar. It has come in evidence that the secret informer accompanied the two teams from the office of crime branch to the spot where the picket was held and it was at his pointing out that the motorcycle was signaled to stop. There is nothing in the evidence as to when the secret informer left the spot. In the given circumstances, it appears that the secret informer opted to remain with the party even at the time of occurrence and apprehension of the accused. Therefore, he could not be simply termed as a secret informer, and rather the nvestigating officer should have made him a witness.
-:10:-Non joining of independent witness in the party Even otherwise, it has appeared in evidence that persons were passing by that side before and after the occurrence and as such there was ample opportunity with the police to join persons from the public. This is a case where there is no coroboration from independent source. It is well settled that statements of police officials cannot be thrown away in entirety merely because of their official status and that absence of corroboration from independent source puts the court on guard to scrutinize their statements with more care and caution.
Is the prosecution story believable regarding receipt of secret information against Samunder accused ?
According to PW9 Head Constable Vijender, the secret information was that Samunder Khatri, wanted in a murder case of Bawana, would go towards Bawana at about 1 p.m., via Barwala Pooth Khurd Village. He passed on this information to SI Jitender Singh, who in turn, conveyed the same to the ACP. PW10 Inspector Jitender Singh has deposed about receipt of secret information by HC Vijender on 08.10.2005. It is in his statement that lot of raids had -:11:- already been conducted in this regard, as Samunder Khatri was wanted in a murder case of Bawana.
It may be mentioned here that if Samunder Khatri accused was involved in some murder case of Bawana, it was for the prosecution to place on record documentary evidence to show that Samunder Khatri was involved in any such murder case of Bawana. No such document has been placed on record.
Had any raid already been conducted, then the prosecution was to place on record documentary evidence to support this fact. However, there is nothing on record to suggest as to on which date, time and place any such raid was conducted. In his cross examination, PW10 Inspector Jitender Singh admitted that he was not having any record in respect of raid conducted for arrest of Samunder @ Surender Khatri accused. He also admitted to have not placed on record any proof in respect of any raid conducted prior to 08.10.2005.
Prosecution has placed on record copy of DD No.4 Ex. PW7/A, recorded in DD register of crime branch. As per this entry, secret informer informed HC Vijender that Samunder @ Surender Khatri, who was involved in murder -:12:- case of Bawana, was likely to come towards Pooth Khurd via Village Barwala in the company of his companion on motorcycle No. HR-13A-5408. The information further revealed that Samunder @ Surender Khatri was to go towards Bawana with intend to commit some crime. In the given circumstances, the crime branch should have made efforts, first of all to collect information from PS Bawana as to in which case said Samunder @ Surender Khatri was involved. There is nothing on record to suggest that the crime branch immediately contacted police of PS Bawana or investigating officer of any such murder case to have information regarding involvement of Samunder @ Surender Khatri. It becomes doubtful if without verifying registration of any such case against Samunder @ Surender Khatri, crime branch could lead to the disclosed place where the picket was held, so as to apprehend Samunder @ Surender Khatri.
In absence of any record of involvement of Samunder @ Surender Khatri accused in any such murder case of Bawana and in absence of any record of raid conducted for arrest of Samunder Khatri accused, it becomes doubtful if any such secret information was received by the crime branch on 08.10.2005.
-:13:-Ocular Account As per prosecution version, both the parties waited for arrival of Samunder @ Surender Khatri accused. It was at about 1.30 p.m. that secret informer pointed out towards motorcycle coming from the side of Village Barwala. According to PW9 HC Vijender, SI Jitender signaled the accused persons to stop but after pushing Constable Veer Pal, the accused took the motorcycle ahead; that Constable Veer Pal fell down; that he (PW9) chased the accused and at that time, Harkesh, who was driving the motorcycle, asked his companion-Samunder Khatri (accused) to open fire; that Samunder Khatri opened fire at him (PW9) from a country made pistol, but he (PW9) saved himself and at the same time, pushed the motorcycle and apprehended Samunder Khatri accused, whereas SI Jitender and Constable Dilawar apprehended Harkesh accused. The witness then deposed about recovery of country made pistol containing one empty from the right hand of Samunder Khatri accused and two live cartridges from the right side pocket of his pant.
PW10 Inspector Jitender has deposed almost in line with the statement of PW9 HC Vijender regarding the arrival of the accused persons on motorcycle, opening of fire -:14:- by Samunder Khatri accused at the instigation of his co- accused Harkesh, arrest of both the accused, recovery of countrymade pistol containing one empty from the possession of Samunder Khatri accused in addition to two live cartridges from the right side pocket.
Is the Version believable and reliable regarding arrival of the accused, hitting Constable Veer Pal with the motor cycle, as narrated by the PWs ?
It may be mentioned here that PW10 Inspector Jitender could not correctly tell the registration number of the motorcycle . The motorcycle was bearing registration No. HR-13A-5408. But PW10 stated in his chief examination that the motorcycle was bearing registration No. HR-13A-5301.
According to PW10 Inspector Jitender, at the time the motorcycle struck against Constable Veer Pal, the Constable was standing by his side and it was thereafter that HC Vijender chased the accused and the shot was fired by Samunder Khatri accused at the instigation of Harkesh accused. It is in prosecution evidence that at that time, the motorcycle was being driven at a very slow speed i.e. 5/10 kilometres per hour.
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Had Samunder accused opened fire while the police officials were standing so close to each other as the PWs want to believe this court, the shot stated to have been fired by Samunder accused could hit anyone of the police officials. In such a situation, even the motorcycle would have struck against Jitender and then Head Constable Veer Pal. But as noticed above, prosecution has come forward with the version that the motorcycle struck against Head Constable Veer Pal.
In this regard, when we advert to the statement of PW14 Head Constable Veer Pal, it would transpire that according to him, he did not suffer any injury except pressing of his nerve. As a result of pressing of his nerve, he could not stand straight. It is in his statement that motorcycle hit him on the right side of his waist. Case of prosecution is that the constable was sent to hospital for medical examination. MLC No. 82 dated 08/10/2005 in respect of Veer Pal son of Sh. Shyam Lal, prepared at Maharishi Balmiki Hospital, Pooth Khurd, would reveal that Veer Pal was brought to the hospital at 02:50 p.m. as a case of road traffic accident. He was so brought there by ASI Randhir Singh No. 5613 of PCR. -:16:- Did Constable Veer Pal suffer any injury during the occurrence?
Had the constable suffered an injury at the time of occurrence, the history provided to the doctor would not have been that the constable had suffered injury in road traffic accident. Doctor advised X-ray LN Spine and at the same time referred Veer Pal for Orthopaedic Surgery. Furthermore, there is nothing in the statement of PW19 Head Constable Veer Pal that he acted upon the advice of the doctor for X-ray. A perusal of copy of PCR form would reveal that constable was reluctant even to go to hospital. There is nothing on record to explain as to why the constable was reluctant in visiting the hospital. The alleged history provided to the doctor that constable Veer Pal had suffered injury in road traffic accident, makes the prosecution version regarding the manner in which the occurrence took place highly doubtful.
As noticed above, Constable Veer Pal was removed to the hospital by PCR staff reaching there at 02:30 p.m. It is in the statement of PW9 Head Constable Vijender that PCR staff reached the spot at about 03:30 p.m. Even according to PW10, PCR staff reached the spot at about -:17:- 3/03:30 p.m. At this stage, when we advert to the PCR form, it would transpire that PCR received information about a quarrel and firing of shots at about 02:06 p.m.. The MLC of constable Veer Pal would reveal that constable was brought to the hospital by the PCR staff at 02:30 p.m. Therefore, the version narrated by PW9 and PW10 that the PCR staff reached the spot at 03:30 p.m. is not in consonance with the record. In the given facts and circumstances, it was duty of the investigating officer to join members of the PCR staff in investigation or atleast record statement of the Incharge of the PCR Staff in respect of removal of constable Veer Pal from the spot to the hospital. But the fact remains that the investigating officer did not join anyone from PCR staff in the investigation to lend corroboration to the prosecution version. Had the PCR staff reached the spot and removed the constable from there to hospital, the PCR staff could depose before the court as to at what point of time they reached the spot and what did they saw on reaching there and also as to why constable Veer Pal was removed from the spot to the hospital or as to why the constable was reluctant in going to the hospital as stands recorded in PCR form. In the given situation, non examination of the PCR staff adversely affects -:18:- the case of prosecution.
Information conveyed by an informant is about quarrel and firing of shots on Barwala Pooth Khurd road As noticed above, PCR received a call at 02:06 p.m. about a quarrel and firing of shots in the area on the main road, between Barwala and Pooth Khurd. The occurrence is alleged to have taken place at 01:45 p.m. Only one shot is stated to have been fired by Samunder accused. But in the PCR form the first information recorded at 02:06 p.m. is to the effect that quarrel was going on and shots were being fired. It remains unexplained as to how firing of one shot could be reported to the PCR as firing of shots. In the PCR form, name of the informant stands recorded as Jorawar. His telephone number stands recorded as 2778635. When the name of the informant and his telephone number were got recorded in the PCR form, it was the duty of the investigating officer to join said Jorawar in the investigation to lead evidence as to how he came to know about a quarrel and firing of shots when only one shot is stated to have been fired. The fact remains that the said informant namely Jorawar was not joined in the investigation for the reasons -:19:- best known to the investigating officer, although, his telephone number was clearly mentioned in the PCR form. Non joining of the said informant further creates doubt if the occurrence, as put forth by the prosecution witnesses, actually did take place.
Non Examination of material witnesses - PCR Staff, Sub Inspector Ajeet Singh and constable Anand Prakash from Police Station Bawana who reached the spot soon after the occurrence Case of prosecution is that DD No. 9A was recorded at Police Station Bawana at 02:15 p.m., on receipt of information from the wireless operator that constable Nafe Singh of PCR had informed about a quarrel and firing of shots in between Barwala and Pooth. On the basis of this information, SI Ajeet Singh and constable Anand Prakash left the police station for the disclosed place. This DD No. 9A is Ex.PW11/A. In support of the contents of the information stated to have been given by constable Nafe Singh of PCR, the investigating officer should have associated him in the investigation but the fact remains that constable Nafe Singh of PCR was also not joined in the investigation to prove the contents of DD No. 9A. In the given circumstances, the -:20:- investigating officer should have associated even SI Ajeet Singh and Constable Anand Prakash who is stated to have left police station for the disclosed place. In the ruqqa Ex.PW5/B sent from the spot, it stands recorded that local police reached the spot and that the local police was also apprised of the facts. It also stands recorded that even PCR staff reached the spot and PCR staff too was apprised of the facts. As noticed above, no member of the PCR staff was examined as a witness. Had SI Ajeet Singh and constable Anand Prakash reached the spot, it was duty of the investigating officer to cite them as witnesses to prove their arrival at the spot so that they could be examined in court to prove as to what they had witnessed on reaching the spot. The fact remains that neither SI Ajeet Singh nor constable Anand Prakash has been examined in court to support the version which stands recorded in the ruqqa Ex.PW5/B and contents of DD No.9A. Non-examination of SI Ajeet Singh and Constable Anand Prakash also adversely affects the case of prosecution regarding the manner in which the occurrence is stated to have taken place.
Prosecution has placed on record rough site plan Ex.PW3/A depicting the place of occurrence. In it note No.1 -:21:- is the place where team A headed by ACP was present; note B is the place where team B headed by SI Jitender Singh was present; note C is the place where the accused were apprehended and note 4 depicts the distance between the two teams. The site plan does not depict the place where constable Veer Pal was allegedly hit by motorcycle being driven by Harkesh accused. It also does not depict the position of Head Constable Vijender who is stated to have chased the motorcycle and then apprehended Samunder accused. So the site plan does not depict these material points and this fact also adversely affect the case of prosecution.
Contradictory statements of witnesses regarding the place of recovery of two live cartridges PWs are in contradiction with each other in respect of recovery of the two live cartridges. According to PW9, the two cartridges were recovered from the "right" side pocket of Samunder accused. On the other hand PW14 Head Constable Veer Pal stated that the two live cartridges were recovered from "left" side pocket of the pant. This contradiction also creates doubt regarding presence of the two PWs on the given date, time and place.
-:22:-Seizure of Firearm and Ammunition recovered from Samunder Accused Case of prosecution is that the firearm and ammunition recovered from Samunder accused were turned into a parcel and then seized vide memo Ex.PW9/B whereas motorcycle was seized vide memo Ex.PW9/C. Rough sketch of the pistol, the two live cartridges and the empty is Ex.PW9/A. All these three documents bear attestation of Head Constable Vijender and constable Ved Prakash. A perusal of statement of PW14 Head Constable Veer Pal would reveal that in his cross examination he stated to have signed the memos prepared in his present at the spot. Had any memo been prepared in his presence at the spot, he must have deposed about the same in his chief examination. However, in his chief examination he did not state to have attested any such memo. So the statement made by PW14 Head Constable Veer Pal in his cross examination that he signed the memos prepared in his presence is against the records. This material contradiction in his statement coupled with the alleged history provided to the doctor that he had met with a road traffic accident falsifies the prosecution version regarding presence of constable Veer Pal on the given date, -:23:- time and place.
Failure of prosecution to rule out possibility of tampering with the case property Case of prosecution is that after the recovery, firearm and ammunition were turned into a parcel and sealed with the seal which was handed over to Head constable Vijender Singh. Form FSL is also stated to have been filled in by SI Jitender Singh. Had the seal been handed over by SI Jitender to Head constable Vijender, the head constable would not have omitted to state so while making statement in court. However, perusal of his statement as PW9 would reveal that he nowhere deposed about entrustment of seal to him after the firearm and ammunition were sealed. This fact creates doubt in the prosecution version if actually the case property was sealed and the seal was handed over to PW9.
In suchlike cases, form to be sent to FSL is filled in, to give all material particulars so as to rule out possibility of tampering with case property. In such like cases, copy of the FSL form is produced in court, while one of the FSL form is to be sent to FSL for comparison with the sealed parcels sent for analysis. However, in this case prosecution has not placed on record, copy of any such FSL form. With non production -:24:- of copy of FSL form, prosecution has failed to rule out possibility of tampering with the case property. Therefore, prosecution cannot take any advantage of the report submitted by FSL after analysis of the contents of the parcel. Other Contradictions in the statements of witnesses It is in the statement of PW9 Head constable Vijender that they left the spot at about 8 p.m. and reached Police Station "Bawana". At another stage, in his cross examination, PW9 stated that case property was deposited with the MHC (M) at 08:30/9 p.m. whereas the accused persons were taken to Police Station "Saraswati Vihar" and confined there in lock up. PW2 ASI Ram Kumar is stated to have taken over investigation after registration of the case. According to him, he reached the spot at about 04:50 p.m. As regards return from the police station, PW2 ASI Ram Kumar stated that they reached the police station "Mangol Puri" at about 10 p.m. Thus, statement of PW2 ASI Ram Kumar is in contradiction with the statement made by Head Constable Vijender as regards the time of their arrival at the police station where the accused persons were lodged. This material contradiction makes the prosecution version narrated by these PWs doubtful as it is not clear as to whether the -:25:- accused persons were taken Police Station Bawna or Police Station Saraswati Vihar or Police Station Mangol Puri. Non Seizure of copies of log book Two police vehicles are stated to have been used in reaching the spot where the picket was held. It is a matter of common knowledge that log book of every Government vehicle is supposed to be maintained. However, in this case PW2 ASI Ram Kumar, investigating officer, neither recorded statement of any of the drivers of the police vehicles nor seized any copy of the log book to support the case of prosecution that actually the two police vehicle left the office of crime branch on the given date and time and reached the spot i.e. the place where the occurrence is alleged to have taken place. There is no explanation for non-recording of statements of the two drivers or for non-seizure of copies of log book, which in turn creates doubt in the version of prosecution if any such vehicle was actually used in going from the office of crime branch Prashant Vihar and in reaching the spot.
SI Jitender sent ruqqa from the spot and got this case registered. The occurrence is alleged to have taken place at 01:45 p.m. But the ruqqa was dispatched from the -:26:- spot by SI Jitender Singh at 04:45 p.m. SI Jitender while appearing in court as PW10 deposed that he left the spot at about 6 p.m. On the other hand, PW9 Head Constable Vijender stated that they remained at the spot from 12 noon to 8 p.m. There is nothing in the statement of PW10 Inspector Jitender to suggest as to why he opted to leave the spot at about 6 p.m. while other members of both the teams were still at the spot.
It is also pertinent to mention here that SI Jitender deposed in court that on reaching the disclosed place at about 12 noon, he asked 4/5 persons to join the party, but none came forward. No notice is stated to have been issued to any such person who did not join the party. PW9 Head Constable Vijender has contradicted the statement made by PW10 SI Jitender in respect of any effort made to join the witness from the public. In his presence, the investigating officer did not make any attempt to call any person from the public, for being joined in the party. Had any effort been made to join anyone from the party at the spot, PW9 Head Constable Vijender would not have stated that the investigating officer did not make a attempt to join anyone from the public in his presence.
-:27:-No action taken on the basis of disclosure statements attributed to the accused Case of prosecution is that after their arrest both the accused made disclosure statements. As noticed above, picket was held on the basis of secret information that Samunder @ Surender Khatri accused wanted in a murder case of Police Station Bawana was expected to arrive. Had the accused been so apprehended on the given date, time and place in connection with any such murder case, the investigating officer SI Jitender or ASI Ram Kumar would have immediately contacted the police of Police Station Bawana and informed about arrest of Samunder accused. However, there is nothing on record to suggest that any of the two investigating officer informed police of Police Station Bawana regarding arrest of Samunder @ Surender Khatri accused so that police of that police station could arrest him in any such murder case.
As per secret information recorded at the office of Crime Branch, Samunder @ Surender Khatri was going to commit a crime in the area of Village Bawana. Secret informant was allegedly accompanying the two teams constituted by the Crime Branch. There is nothing on record -:28:- to suggest as to which crime was going to be committed by Samunder @ Surender Khatri accused in the area of Bawana. The investigating officer did not take any step, immediately on receipt of secret information, to know as to against whom Samunder @ Surender Khatri accused was going to commit a crime, so as to prevent the commission of crime or to alert the person who was the target.
In the disclosure statements both the accused are stated to have offered to get their companions apprehended and certain recoveries affected. In the given circumstances, it was for the prosecution to prove that after the disclosure statements were made, the police of concerned police station was informed about commission of crime by the accused persons and their companions and that they had made disclosure statements. There is also nothing on record to suggest that steps were taken by Crime Branch or local police in pursuance of arrest of their companions of recovery of any incriminating material. Rather it shows that crime branch was satisfied with the registration of this case and the recording of disclosure statements. Non taking of any further step by police or by the Crime Branch in pursuance of the disclosure statements creates doubt in the version put forth by the -:29:- prosecution witnesses.
Conclusion In view of this discussion, this court comes to the conclusion that prosecution has failed to substantiate any of the accusation levelled against any of the two accused that on 08/10/2005 at about 01:45 a.m. both of them came together riding a motorcycle or when they were signaled to stop Samunder accused, at the instigation of his co accused Harkesh, opened fire at the police party or that Samunder accused was found in possession of any such country made pistol or two live cartridges or any empty. Accordingly, Samunder @ Surender Khatri and Harkesh @ Munna accused are acquitted in this case.
Case property be destroyed in accordance with rules on expiry of period of appeal/revision, if none is preferred or subject to decision thereof.
File be consigned to record room.
Announced in Open Court on dated 12th of March, 2008 (NARINDER KUMAR) ADDL SESSIONS JUDGE FAST TRACK COURT ROHINI: DELHI