Delhi District Court
Fir No. 52/2009 State vs . Anil Chauhan Etc Page No.1 Of 34 on 11 December, 2018
IN THE COURT OF SH. AJAY GUPTA,
ADDL.SESSIONS JUDGE02 (EAST) SPL. JUDGE (NDPS)
KARKARDOOMA COURTS, DELHI
New Case No. 656/2016
FIR No.52/2009
U/s 186/353/307/34 IPC & 25/27 Arms Act
PS Geeta Colony
State
Versus
(1) Anil s/o Sh. Chote Lal
H.No.10, Gali no.1,
Chambi Chowk, Johripur
Delhi110094
Also at: C301 Gali no.11
Ganga Vihar, Delhi
(2) Pawan Chaudhary s/o Sh. Krishan Pehalwan
C3, Village Gokalpur
Delhi
Also at: Daulat Dharm Kante wali Gali
Ganga Vihar, Gokalpuri
Delhi
(3) Lalit @ Mental @ Himanshu
s/o Sh. Devender Yadav
r/o 60 H Block, Gali no.4
Ganga Vihar, Gokalpuri
Delhi
Also at: 60, H Block, Gali no.4
Ganga Vihar, Gokalpuri
Delhi
FIR No. 52/2009 State Vs. Anil Chauhan etc Page No.1 of 34
(4) Dharmender @ Bhupender @ Taat
s/o Sh. Megh Shyam Singh
r/o D1/227, Gali no. 6,
Harsh Vihar,
Delhi110093
Also at: D220 Ganga Vihar
Gokapuri, Delhi
(5) Yash Kumar s/o Sh. Suresh Kumar
r/o 427B Khanna Nagar, Loni
Ghaziabad UP
Also at: D522, Gokalpuri
Delhi
........... Accused
Date of Institution: 15.11.2010
Reserved for Judgment on : 07.12.2018.
Judgment pronounced on: 11.12.2018
JUDGMENT
The prosecution case in brief is that on 13.03.2009, Insp. Rohtash Kumar alongwith Ct. Rambir, Ct. Harender and HC Rohtash Kumar were in the investigation of FIR no.43/09 u/s 394/397/34 IPC PS Gandhi Nagar and were present at Jheel Chowk. At about 9.35 p.m, a secret informer came and informed Insp. Rohtash that 45 boys would come on two motorcycles having illegal weapons and that they will got to Pushta road via Raja Ram Kohli Marg for committing an offence and if raided, can be apprehended. Insp. Rohtash alongwith available staff reached at Raja Ram Kohli Marg. Duty Officer was informed though phone and he was asked to send staff in government vehicle at GC1 FIR No. 52/2009 State Vs. Anil Chauhan etc Page No.2 of 34 picket. 34 passersby were requested to join the raiding party but they left away without telling their names and addresses. SHO PS Geeta Colony alongwith HC Moolchand, Ct.Pramod and Ct. Harender also reached at the picket. It is further the case of the prosecution that barricades were put at the spot and staff was deputed to check the vehicles. At about 10.00 p.m, one motorcycle (black pulsar) riding two boys and another motorcycle (red colour) riding three boys came towards the picket. They were signaled to stop but the motorcyclists took a turn and tried to run away. The available staff ran to apprehend the said motorcyclists. It is further the case of the prosecution that one of the rider of black motorcycle namely Lalit Yadav @ Himanshu @ Mental (name came to be known later on enquiry), took out a country made pistol from his dub and made fire towards police party. Saving themselves, Ct.Harinder and HC Rohtash apprehended the said Lalit Yadav alongwith country made pistol. His associate namely Pawan Chaudhary (name came to be known later on) was apprehended by Insp. Rohtash Kumar. Motorcycle being driven by Pawan fell on the ground. The three boys on another motorcycle also tried to flee but when they were tried to be apprehended by Insp.Niyampal, HC Moolchand, Ct. Rambir, Ct. Pramod and Ct.Harender at that time, Anil Chauhan(name came to be known later on) who was sitting in between two boys took out a country made katta and pointed towards the police party but HC Moolchand and Ct. Rambir apprehended him alongwith katta. Another boy was apprehended by FIR No. 52/2009 State Vs. Anil Chauhan etc Page No.3 of 34 Ct. Pramod and Ct. Harender and his name came to be known as Dharmender Singh. During the apprehension of accused persons, The third boy namely Yash (name came to be known later on) succeeded to run away from the spot since the motorcycle was in start condition. On personal search of accused Pawan Chaudhary, one buttondar knife was recovered from his right side dub. Insp. K Singh reached at the spot on receipt of DD no.47A. All the accused were produced before Insp JK Singh alongwith recovered country made pistols and buttondar knife. He measured the arms and prepared the sketch of the same. He also converted the same into pullandas which were sealed with the seal of RK and seal after use was handed over to Ct. Mangal Ram. All the accused have obstructed the police officials in discharge of their duties and also attacked them with an intention to kill them. All the four accused were arrested. Site plan was prepared. Disclosure statements of the accused persons were recorded. Case property was deposited in the Malkhana. Accused Yash who fled from the spot was arrested later from Tihar Jail. Case property was sent to FSL. Pending receipt of FSL result, chargesheet was prepared against the accused persons u/s 186/353/307/34 IPC and 25/27 Arms Act and they were sent to court for trial.
2. FSL result was filed. After compliance of section 207 Cr.P.C., charge u/s 186/353/307/34 IPC was framed against all the five accused. Separate charge u/s 25/27 Arms Act was framed FIR No. 52/2009 State Vs. Anil Chauhan etc Page No.4 of 34 against accused Lalit Yadav. Separate charge u/s 25 Arms act were framed against accused Pawan and Anil Chauhan to which all the accused pleaded not guilty.
3. In order to prove its case, prosecution examined 13 witnesses. PW1 is HC Har Prasad. He is the FIR recorder. He recorded FIR Ex.PW1/B. Endorsement on rukka is Ex.PW1/A. Copy of FIR was sent to SI JK Singh.
4. PW2 is Insp. Rohtash Kumar, PW3 is HC Rohtash Kumar, PW11 is ASI Ramvir Singh, PW13 is HC Harender. They all were present at Jheel Chowk where PW1 received the secret information. They are the members of police party regarding arrest and recovery of weapons. Their testimonies are more or less the same as stated in para '1' of the Judgment and therefore, are not being repeated for the sake of brevity.
5. PW4 is Ms. I.B.Rani. She is the then Addl. Deputy Commissioner of Police. She accorded sanction u/s 39 Arms Act to prosecute accused Lalit and accused Anil Chauhan.
6. PW5 is ASI Mool Chand. PW7 is HC Pramod. PW8 HC Harindra Singh. They reached at the spot with SHO Insp.Niyam Pal. Insp. Rohtash, HC Rohtash, Ct. Harender and Ct. Rambir met them there. They were briefed that 45 boys would come on two FIR No. 52/2009 State Vs. Anil Chauhan etc Page No.5 of 34 motorcycles with ammunition. They deposed that they put up barricades and started checking the vehicles. They further deposed as per the version of PW2 and PW3.
7. PW6 is ASI Mohd. Iftikar Khan. He deposed that on 14.03.2009, SI JK Singh handed over three sealed pullandas bearing the seal of RK, a motorcycle no. DL 7ST 6083 and articles of personal search of accused alongwith copies of seizure memos which were deposited in malkhana vide entry no.115/1077 Ex.PW6/A. He further deposed that on 08.05.2009 two pullandas were sent to FSL and on 20.01.2010, SI Rajender deposited two pullandas after bringing from FSL. Copy of RC is Ex.PW6/B and acknowledgement is Ex.PW6/C.
8. PW9 is HC Mange Ram. He reached at the spot where Insp. Rohtash Kumar prepared rukka and handed over the same to him. He had gone to PS and got the case registered. After registration of case he came back and handed over the copy of FIR and original tehrir to SI JK Singh.
9. PW10 is SI Rajendra Kumar. He was entrusted further investigation. On 20.01.2010, he collected the FSL result Ex.PW10/A and placed the same on record. He obtained sanction u/s 39 Arms Act which is Ex.PW4/A and Ex.PW4/B. FIR No. 52/2009 State Vs. Anil Chauhan etc Page No.6 of 34
10. PW12 is Insp. J.K.Singh. He deposed that on receipt of DD no.47A, Ex.PW12/A he alongwith Ct. Mange Ram reached at picket GC1 at Rajaram Kohli Marg where Insp. Rohtash alongwith staff met him. He deposed that Insp. Rohtash had already apprehended the accused persons along with weapons which were handed over to him. He carried out the measurements of the said weapons, prepared their sketch and seized the same. He also seized motorcycle no. DL 7ST 6083. The sketch of country made pistol recovered from accused Lalit Yadav is Ex.PW3/A which was seized vide memo Ex.PW3/B. The sketch of country made pistol recovered from accused Anil is Ex.PW5/A which was seized vide memo Ex.PW5/B. The sketch of buttondar knife is Ex.PW2/C which was seized vide memo Ex.PW2/D. Motorcycle was seized vide memo Ex.PW2/E. He further deposed that he made endorsement Ex.PW12/B on the statement of Insp. Rohtash Kumar, prepared rukka and sent the same to PS through Ct. Mange Ram for the registration of FIR, who got the case registered. PW12 prepared the site plan Ex.PW2/C. He arrested the accused Dharmender vide arrest memo Ex.PW7/A and conducted his personal search vide memo Ex.PW7/A1. Disclosure statement of accused is Ex.PW7/A2. He arrested accused Pawan vide memo Ex.PW2/D1 and conducted his personal search vide memo Ex.PW12/C. His disclosure statement is Ex.PW12/D. He arrested accused Anil vide memo Ex.PW5/C, conducted his personal search vide memo Ex.PW5/D and recorded his disclosure statement Ex.PW5/E. He also arrested accused Lalit FIR No. 52/2009 State Vs. Anil Chauhan etc Page No.7 of 34 Yadav vide memo Ex.PW3/C and conducted his personal search vide memo Ex.PW3/D. Disclosure statement of accused is Ex.PW3/E. He deposited the case property in malkhana. On 04.05.2009, he arrested accused Yash Kumar vide memo Ex.PW12/E, conducted his personal search vide memo Ex.PW12/E1.
11. Statements of accused persons u/s 313 Cr.P.C were recorded wherein accused persons have stated that they are innocent. They have been falsely implicated in this case. Accused Anil has stated that he was lifted from his house. Accused Pawan stated that he was lifted from Subzi Mandi, Gokalpuri. Accused Dharmender has stated that he was lifted from main road Ganga Vihar Delhi and brought to PS Geeta Colony and then to Gandhi Nagar and Krishna Nagar. Police has registered false case against him. Accused Yash Pal has stated that he was falsely implicated after one month from the incident. All the accused except accused Lalit Yadav had opted to lead the defence evidence. However, only accused Dharmender has examined himself u/s 315 Cr.P.C in his defence. He stated that on 13.03.2009, he was picked up by the police from Ganga Vihar and brought to various PS including PS Geeta Colony, Gandhi Nagar and Krishna Nagar. He was beaten by the police and his signatures were forcibly taken on some blank papers. Next day, he alongwith other accused persons were produced before Media persons and thereafter produced before the Court and sent to Jail.
FIR No. 52/2009 State Vs. Anil Chauhan etc Page No.8 of 34
12. Arguments have been heard from the Ld. Addl. PP as also from the Ld.Counsel for accused. Ld. Addl.PP has argued that all the police witnesses who were members of raiding party and had apprehended the accused persons on 13.03.2009, have deposed on the lines of prosecution story and have corroborated each other. He further contended that defence could not impeach testimonies of said witnesses during cross examination and therefore, prosecution has been able to establish the charges levelled against accused persons beyond reasonable doubt. He further pointed out that accused namely Anil Chauhan and Lalit Yadav were found in possession of one country made pistol each. One live cartridge was recovered from accused Anil Chauhan and that one empty cartridge was recovered from accused Lalit Yadav. He also submits that one buttondar knife has been recovered from accused Pawan Chaudhary. Therefore, all the three accused are also liable to be convicted in respect of offence U/s 25 Arms Act. Ld. Additional PP also referred to the relevant portions of the testimonies of police witnesses namely PW2 Insp. Rohtash Kumar, PW3 HC Rohtas Kumar, PW11 ASI Rambir Singh, PW13 HC Harender and the witness who accompanied the SHO to the spot i.e. PW5 ASI Moolchand, PW7 HC Pramod and PW8 HC Harender Singh, in order to buttress the aforesaid submissions made by him before the Court. He submits that the prosecution has been successful in proving its case against the accused persons.
FIR No. 52/2009 State Vs. Anil Chauhan etc Page No.9 of 34
13. Ld. Counsels for accused persons submits that the case of the prosecution is doubtful. It is argued that there is no public witness in this case. Ld. Counsel submitted that witnesses have clearly admitted in their cross examination that public persons were there at the spot but despite availability, none could be joined in this case. No crime team was summoned at the spot. There is no document on record that ACP had prepared the crime team for the investigation of other case for which the police officials were at the spot. No DD entry has been proved in for the departure of the police officials. It has been argued that PW2 had informed the SHO regarding the secret information and SHO had also come to the spot but he has not been cited as witness in this case while it is the case of the prosecution that accused Anil and Dharmender were caught by the team of SHO. Ld. Counsel has drawn the attention of the Court on the arrest memos of accused and submitted that some of the column are blank and that it can be inferred from the same that the same were prepared while sitting in the PS and that the accused persons have been falsely implicated in this case. It is submitted that fire was made at the spot but no recovery of empty shell has been made and thus, the case of the prosecution seems to be false. Also gunpowder was not recovered. No CDRs has been filed on record to show any connection between the accused persons. Ld. Counsels have drawn the attention of the Court on the testimony of each witness and submitted that the case of the prosecution is full of contradiction and thus, request has been made that the accused FIR No. 52/2009 State Vs. Anil Chauhan etc Page No.10 of 34 persons may kindly be acquitted in this case.
14. In the present case, PW2 Insp. Rohtas Kumar, PW3 HC Rohtash Kumar, PW11 ASI Rambir Singh and PW13 HC Harender were in the investigation of case FIR no. 43/09 u/s 394/297/34 IPC PS Gandhi Nagar at Jheel Chowk when PW2 received the secret information. PW5 ASI Mool Chand, PW7 HC Pramod and PW8 HC Harinder Singh reached at the spot after the information was passed on by PW2 to Duty Officer/SHO in the PS. It is in evidence that the case FIR no.43/09 was being investigated by PW2 when the secret information was received. The present case has been registered in PS Geeta Colony. From the evidence on record, it is revealed that PW2, PW3 and PW13 were posted at PS Geeta Colony at the relevant time. However, PW11 ASI Ramvir Singh was posted in PS Krishna Nagar. It is not understood as to how the police official of PW Krishna Nagar joined the investigation with the police officials of PS Geeta Colony. No directions/DD placed on record in respect of joining of ASI Ramvir Singh from PS Krishna Nagar. Further, as per the testimony of PW2, case FIR no. 43/09 was of PS Gandhi Nagar but no police official of PS Gandhi Nagar has been joined in the investigation. It is thus, not understood as to how the police officials of PS Geeta Colony were in the investigation of said case of PS Gandhi Nagar. Doubt further enhances when no police officials of PS Gandhi Nagar has been joined in the investigation of FIR no.43/09 while the FIR was belonging to their Police Station. FIR No. 52/2009 State Vs. Anil Chauhan etc Page No.11 of 34 None of the PWs have given any explanation in this respect. However, in cross examination, PW2 Insp. Rohtash Kumar stated that he was not investigating case FIR no. 43/09 u/s 394/397/34 IPC PS Gandhi Nagar. ACP Rajender had instructed him to trace out the culprits involved in FIR no. 43/09. In cross examination, PW13 has stated that the raiding party constituted under Insp. Rohtas including them was for arresting the Proclaimed Offenders. There is no explanation from PW2 in this respect as to for which proclaimed offender(s), they were going to arrest on that day and what happened to their investigation in this respect or as to whether they were going to arrest some one on the basis of specific information in that regard. In cross examination, PW2 has stated that ACP had directed him to trace out the accused. However, there is no written DD/order placed on record in this respect by which ACP had directed PW2 to trace the accused of that case. The evidence in respect on record shows that there is some manipulation in this case.
15. PW2 Insp. Rohtash Kumar stated that he received the secret information and thereafter, he immediately informed to Duty Officer/SHO Nem Pal Singh. Similar is the version of PW3 HC Rohtas Kumar, PW11 ASI Ramvir Singh and PW13 HC Harender. However, PW5 ASI Moolchand deposed that at about 9.45 p.m as per instruction of SHO Insp. Nem Pal, he alongwith Ct. Pramod and Ct. Harender accompanied him in the official gypsy to GC1 picket where Insp. Rohtash met alongwith his staff. SHO briefed that 45 FIR No. 52/2009 State Vs. Anil Chauhan etc Page No.12 of 34 boys shall come on two motorcycles of make pulsar, red and black colour with ammunition. PW7 HC Pramod and PW8 HC Harinder have also stated that Insp. Rohtash told the SHO that he had a secret information that 45 boys would come on motorcycles with illegal arms and ammunition. From above evidence, it is clear that SHO Nem Pal was apprised of about the facts of the present case/secret information after he alongwith his team reached at the spot. Copy of DD no.47A is placed on record as Ex.PW12/A. This is the DD in which secret information was recorded and on receipt of the same PW12 Insp.JK Singh reached at the spot. The fact recorded in the said DD is as under:
"Samay 10.10 baje raat darj hai ki Inspector Niympal Singh SHO Sahab ne bajriye telephone itlah di hai ki GC1 picket per char badmash mai asla pakad rakhe hai. Jinhone police party fire kiya hai. Kisi IO ko mauka per bheja jawe. Hasb Aamad itlah telephone darj roznamcha ki gai. Nakal rapat alag karke bdast Ct. Trishpal NO. 673/E akab mai najd SI JK Singh sahab bhijwai gai. Jo munasib karyawahi amal mai layenge'. Rapat itlah darj hai wakalam HC/DO Note: Shrimanji nakal mutabik asal hai Ct.Ombir No.2165/E"
16. The version recorded in the said DD clearly indicate FIR No. 52/2009 State Vs. Anil Chauhan etc Page No.13 of 34 that no information was recorded by Insp Rohtas but Insp.Niyampal Singh had got recorded the said information after reaching the Picket GC1. The case of the prosecution is that SHO Insp. Niyampal alongwith PW5 ASI Moolchand, PW7 HC Pramod and PW8 HC Harinder Singh reached at the spot after receipt of information lodged in the PS by PW2 Insp. Rohtash but as per DD no.47A it is not so but information was got recorded by SHO/Insp. Niyampal Singh. Further, the information is not with regard to secret information about coming of the accused persons but it has been recorded in the DD that four accused persons have been apprehended at GC1 picket. Thus, it is not understood as to why and for what purpose SHO Insp. Niyampal Singh alongwith his staff came to GC1 Picket on that day because it is not the case that they were on patrolling/investigation. DD no.46A Ex.PW7/DX was recorded at about 9.45 p.m. It was got recorded by Insp. Niyampal Singh regarding departure of the police team to the place of secret information i.e. picket GC1. But there is no DD recorded before hand that secret information was received in the PS and then Insp.Niyampal Singh got recorded DD no.46A. It is the case of the prosecution that SHO Insp. Niyam Pal Singh reached at the spot with PW5 ASI Mool Chand, the then HC, PW7 HC Pramod and PW8 HC Harender Singh meaning thereby Insp.Niyam Pal Singh was the head of the said team. But neither the prosecution cited him as a witness in this case nor examined him. There is no explanation as to why he was not cited as witness in this case. No other DD FIR No. 52/2009 State Vs. Anil Chauhan etc Page No.14 of 34 regarding secret information has been proved on record. The document of prosecution i.e. DD no.47A Ex.PW12/A and DD no.46A Ex.PW7/DX itself creates doubt about the case of the prosecution since they differ from the facts of the case.
17. PW2 stated that on 13.03.2009, he was present at Jheel Chowk alongwith PW2, PW3, PW11 and PW13 where secret information was received by him. In cross examination, he has stated that they had left the PS after recording departure entry but he does not remember the DD number. Perusal of record reveals that prosecution has not placed on record any Departure Entry for leaving of PW2 alongwith his team to the spot. The witness should have produced the relevant records showing their arrival and departure and should have proved by documentary evidence that they were in the investigation of some case by producing DD entry for the same as per Chapter 22 Rule 49 of the Punjab Police Rules which are reproduced as under: "Chapter 22 Rule 9 Matters to be entered in Register No. II. The following matters shall amongst others, be entered: (c ) the hour of arrival and departure on duty at or from a police station of all enrolled police officers of whatever rank, whether posted at the police station or elsewhere, with a statement of the nature of their duty. This entry shall be made immediately on arrival or prior FIR No. 52/2009 State Vs. Anil Chauhan etc Page No.15 of 34 to the departure of the officer concerned and shall be attested by the latter personally by signature or seal.
Note: The term Police Station will include all places such as Police Lines and Police Posts where Register No. II is maintained."
18. None of the prosecution witnesses has deposed as to by what entry in register No. II, they left the PS for investigation in the particular area. The relevant entries regarding the arrival and departure of the police officials have not been proved on the record. It has been held in Rattan Lal Vs. State 1987 (2) Crimes 29 that:
"wherein it has been observed that if the investigating agency deliberately ignores to comply with the provisions of the Act the courts will have to approach their action with reservations. The matter has to be viewed with suspicion if the provisions of law are not strictly complied with and the least that can be said is that it is so done with an oblique motive. This failure to bring on record, the DD entries creates a reasonable doubt in the prosecution version and attributes oblique motive on the part of the prosecution."
FIR No. 52/2009 State Vs. Anil Chauhan etc Page No.16 of 34
19. In the present case, PW2 though stated that he made DD entry before leaving the PS, however, no such DD has been placed on record. PW11 ASI Ramvir Singh who was posted in PS Krishna Nagar has admitted in cross examination that he did not make any departure DD while leaving for the raid of this case. Perusal of the record revealed that no copy of any departure entry is available on file. Thus, the prosecution has failed to produce any entry on record and non production of entries creates a reasonable doubt in the prosecution version.
20. In the present case, all the accused persons were apprehended together at the spot. Personal search memos reveals that two mobile phones were recovered from accused Lalit Yadav, three mobile phones were recovered from accused Anil Chauhan, and one mobile was recovered from accused Pawan Chaudhary. PW11 ASI Ramvir has stated that one secret informer met Insp. Rohtash and informed that all the accused were having fire arms and they were going to commit some offence. PW12 Insp. JK Singh has admitted in cross examination that mobile phones were recovered from the Anil, Lalit Yadav and Pawan Chaudhary. He admitted that he has not made any investigation regarding call detail records of mobile numbers of the accused regarding their presence at the spot. All the accused were coming together in this case and they might be in touch with each on or before 13.03.2009. But IO of this case has FIR No. 52/2009 State Vs. Anil Chauhan etc Page No.17 of 34 made no effort to bring on record the CDRs of their mobile numbers to establish their presence at the spot altogether on the date of incident or that they were in touch with each other on or before the date of incident.
21. In the present case, PW5 ASI Mool Chand and PW7 HC Pramod had turned hostile while they were present at the time of apprehension of the accused persons in this case. They were cross examined by the Ld. Addl.PP and they admitted the suggestions put by the Ld. Addl.PP in affirmative. PW5 could not identify the accused persons. He identified them only after they were pointed out by the Ld. Addl.PP.
22. I have perused the arrest memos of the accused persons. Perusal of the same revealed that the same have not been filled up by PW12 Insp. JK Singh. None of the arrest memo except arrest memo of accused Yash bears the time of arrest of the accused persons. The column no.3 and 7 of arrest memo Ex.PW7/A of accused Dharmender, and Ex.PW2/D1 of accused Pawan and Ex.PW3/C of accused Lalit Yadav are blank, however, column no.3 is blank of arrest memo Ex.PW5/C of accused Anil. No explanation has been given as to why these columns are blank.
23. Ld.Counsel submits that no public witness has been joined in this case though available and thus, the case of the FIR No. 52/2009 State Vs. Anil Chauhan etc Page No.18 of 34 prosecution is not believable. However, Ld. Addl.PP stated that there is no need to associate any public witness as the testimonies of police officials are straight forward regarding apprehension of the accused persons and making fire by them upon the police officials. He submitted that testimonies of police officials cannot be disbelieved. In the present case, prosecution has neither cited any public witness nor examined. All the witnesses of apprehension and recovery of country made pistol and knife are police officials. The place of apprehension is GC1 picket, Raja Ram Kohli Marg, Geeta Colony Delhi. The time of apprehension of accused is about 10 p.m. The month of apprehension is March 2009. In cross examination, PW2 Insp. Rohtas has admitted that Jheel Chowk was thickly populated area having shops on front side and residence of people on the back of the shops and shops used to remain open till 10.00 11.00 p.m. He did not ask any public person at Jheel Chowk to join them after receiving the secret information. PW3 has stated that public persons and vehicles were passing through the place. No notice was given to the public persons who refused to join the investigation. PW5 admitted in cross examination that spot is a public place and public persons were available and were passing through the way and there are residential flats/houses and shops near the spot. He admitted that no one was called from the said flats/houses and shops to join the proceedings. No police officials was called from the police picket. PW7 has stated that the spot is a crowded area and public persons were passing through it. No notice FIR No. 52/2009 State Vs. Anil Chauhan etc Page No.19 of 34 could be given to the public persons by the IO. Similar is the version of other team members regarding availability of public persons at the spot. PW12 Insp. JK Singh, who reached at the spot after information received in PS, has stated that 78 public persons were present at the spot. He did not record their names nor recorded their statements. SHO did not ask them to join in the investigation. He had not recorded the statement of those 78 public persons nor gave any notice to them for their refusal. Insp.Nempal Singh and Insp. Rohtash who were present, did not ask any public persons to join the investigation and to become witness to the incident in his presence. Testimonies of all the raiding party members shows that the spot is a busy place. Many public persons used to pass through the same, it being a residential area. PW2 has clearly stated in his cross examination that he did not ask any public person to join the investigation. PW12 Insp. JK Singh did not record the statements of public persons available at the spot. He also did not serve any notice to the persons who refused to join the investigation. Accused was apprehended at about 10 p.m. There was enough time and opportunity to join the public persons in the raiding team. No notice was served to the public persons nor any action taken against them on their refusal to join the investigation. Police officials remained at the spot till about 2.30 p.m. Thus, the police team remained at the spot for more than five hours. During this long time, no one from the public was joined though place of apprehension is a residential area. Thus, it appears that no genuine effort was made to join the FIR No. 52/2009 State Vs. Anil Chauhan etc Page No.20 of 34 public persons in the raiding team. Ld. Addl.PP has referred to the decision of Ajmer Singh Vs. State of Haryana, (2010) 3 SCC 746 arguing that failure to associate independent witnesses is not fatal to the prosecution case as long as it is shown that efforts were made and none was willing. However, it is seen that in the said decision, Hon'ble Supreme Court emphasized that it has to be shown that after making efforts the police official was not able to get the public witness associated in either raid or the arrest of the culprit. In other words, in every case, it will have to be examined whether serious efforts were made by the police to associate public witnesses.
24. The Hon'ble Supreme Court in Ritesh Chakraborty Vs. State of Madhya Pradesh 2006 (3) JCC (Narcotics) 150 deprecated the practice of Investigating Officer in not noting down the names of the public persons, who fail to join the investigation.
25. In Anup Joshi Vs. State, 1999 (2) CC Cases 314, and Roop Chand Vs. State of Haryana, 1999 (1) CLR 69; the failure to proceed against the public persons, who refused to join the investigation was considered as suggestive of the fact that the explanation for nonjoining of witnesses is an afterthought and is not worthy of credence.
26. In the case of Mohd. Masoom Vs. State of NCT of FIR No. 52/2009 State Vs. Anil Chauhan etc Page No.21 of 34 Delhi, Criminal Appeal 1404/11, decided by Hon'ble Delhi High Court on 09.04.2015, the Hon'ble High Court in Para No. 10 held as under: "10. "Appellants" conviction is primarily based upon the testimonies of the police officers/officials only. Admittedly, no independent public witness was associated at any stage of the investigation. True, it is no rule of law that public witnesses should be joined in every eventuality and no conviction can be based upon the testimonies of the police officials. Sometimes, it becomes highly difficult for the police officials to associate independent public witnesses for various reasons. At the same time, it is undoubtedly true that joining of independent public witnesses is not a mere formality.
Simply saying by the police witnesses that public witnesses were not available without any evidence to that effect would not suffice.
The Investigating Officer is required to make genuine efforts to associate independent public witnesses if available. This is insisted so as to lend authenticity and credibility to the search and recovery that are effected. It is of course not an absolute rule and fact of each case has to be appreciated and scrutinized on its own merits."
27. Hon'ble High Court in para '21' of the aforesaid Judgment held that it has become almost routine practice for the police to say that passersby were requested to join and they declined and went away without disclosing their names and therefore, the FIR No. 52/2009 State Vs. Anil Chauhan etc Page No.22 of 34 Court should be wary of routinely accepting such explanation.
28. In the latest case of Om Prakash Vs. State III (2014) CCR 1 (Del.), it is held that 'in absence of clear evidence to show that sincere effort was made, Court should not simply accept proposition that generally in such cases no member of public comes forward to help prosecution'. Reliance also placed on Raj Bahadur Vs. State of Punjab 2008(4) CC Cases HC 357.
29. In the present case, public persons were not made to join the proceedings at the time of apprehension or recovery of arms at the spot and there seems to be no genuine efforts to join them. Hence, nonjoining of public witnesses at the time of apprehension/recovery of arms creates doubt regarding the entire proceedings being genuine.
30. In the present case, charge has been framed u/s 186/353/307 IPC and 25/27 Arms Act. It is needless to mention here that in order to bring home the charge in respect of offence U/s 186/34 IPC, the prosecution was required to prove the following ingredients:−
a). That the complainant and/or any other aggrieved person was/ were public servants within the meaning of Section 21 IPC.
b). Said public servants were performing their official duty FIR No. 52/2009 State Vs. Anil Chauhan etc Page No.23 of 34 at the time of incident; and
c). Those public servants were obstructed or prevented from discharging their public functions by the accused persons.
31. In addition thereto, there is also a requirement under the law that complaint in writing of concerned public servant or of some other public servant to whom the complainant/victim is administratively subordinate, shall also be filed before the Court in respect of offence U/s 186 IPC as stipulated by Section 195(1)(a)(i) Cr.P.C. without which no cognizance can be taken by the Court.
32. In the matter of Gurinder Singh vs State on 23 May, 1996 Equivalent citations: 1996 IIIAD Delhi 96, 63 (1996) DLT 104, 1996 (37) DRJ 598, 1996 RLR 351, Hon'ble High Court has observed that: "(5) A bare reading of Section 195, Criminal Procedure Code would show that for a Court to take cognizance of an offence punishable under Section 186, Indian Penal Code, the precondition is a written complaint to be filed by the public servant. Admittedly, no such written complaint had been filed by Constable Hukam Singh: In the absence of such a complaint, I am in agreement with the contention of Mr.Andley, that the learned M.M. could not have taken cognizance of the offence punishable under Section 186, Indian Penal Code Statement made by Constable Hukam Singh and as recorded under Section 161, Criminal Procedure Code or for that matter under Section 164, Criminal Procedure Code cannot and would FIR No. 52/2009 State Vs. Anil Chauhan etc Page No.24 of 34 not constitute a written complaint as required under the provisions of Section 195, Criminal Procedure Code. The contention of,Mr.Jolly that the statement of Constable Hukam Singh recorded under Section 161/164 Criminal Procedure Code should be treated at par with a written complaint as envisaged under Section 195 Cr.P.C., is without force. Statement under Section 161 or 164 Criminal Procedure Code cannot be equated as a special complaint in writing stipulated under Section 195 Criminal Procedure Code.
(6) Now reverting to the second limb of Mr.Andley's argument that since learned Trial court could not have taken cognizance under Section 186 Indian Penal Code in the absence of a written complaint, hence the case as a whole must go. I find force in this submission of Mr.Andley. In similar circumstances the Madras High Court in the case of PBtiraj Vs. KMuniyandi 1995 Criminal Rullings 219 held that if complainant ignored the provisions of Section 195 Criminal Procedure Code then the entire complaint must go and Court cannot take cognizance. In that eventuality the proceedings as a whole has to be quashed. In PBtiraj's case complaint was filed consisting of two offences under Section 166 & 186, IPC. In the absence of a written complaint the Court opined that proceedings as a whole are liable to be quashed. Reference can also be made to the decision of Punjab & Haryana High Court in the case of Bhagat Ram V. Sum of Punjab 1991 (1) Crl.LJ. 246, where it has been observed that jurisdiction of the Court to take cognizance of an offence under Section 186, Indian Penal Code, is barred except on a complaint in writing of the public officer concerned. Simple lodging of Fir at the Police Station which resulted in the prosecution of petitioner ultimately and framing of charge for the offences would not amount to filing of complaint in writing by public servant as stipulated under Section 195 Criminal FIR No. 52/2009 State Vs. Anil Chauhan etc Page No.25 of 34 Procedure Code are liable to be quashed. To the same extent are the observations of Madhya Pradesh High Court in the case of Ashok And Anr. V. The State 1987 Crl. L.J. 1750 where the Court after analysing various provisions of the Code and in particular Section 195 and 461(k) held that the trial for the offences under Sections 186/353, Indian Penal Code, without a special complaint as required under Section 195(l)(a)(i) of Cr.P.C. is illegal. When Magistrate acts in contravention of bar under Section 195 Cr.P.C. the proceedings deserve to be quashed. Relying on these judgments Mr.Andley contended and to my mind, rightly so that since the precondition and mandatory requirement of a written complaint is missing in this case, therefore, the trial court could not have taken cognizance of the offences punishable under Section 186 & 353, Indian Penal Code Such congnizance under Section 186 could not have been taken then the Fir as a Whole must be quashed.
(7) Mr.R.D.Jolly on the other hand laid stress that even if no cognizance could be taken under Section 186 Indian Penal Code yet there is no bar to take cognizance of the other substantive offences with which these petitioners are charger. According to him offences under Section 353/306 Indian Penal Code are substantive offences, hence the proceedings as a whole cannot be quashed. To support his arguments he placed reliance on the decision of Supreme Court in the case of Durgacharan Naik & Ors. V. State of Orissa , where the Apex Court while considering the ingredients of Section 353 & 186, Indian Penal Code, held that these are two distinct offences. The quality of the two offences is also different. There cannot be any quarrel with this proposition, but at the same time the Apex Court in this very case sounded a note of caution when it observed that: "THE provision of Section 195, Criminal Procedure Code cannot be evaded by the device of charging a person with an FIR No. 52/2009 State Vs. Anil Chauhan etc Page No.26 of 34 offence to which that Section does not apply and then convicting him of an offence to which it does, on the ground that the latter offence is a minor one of the same character or by describing the offence as one punishable under some other Section of the Penal Code, though in truth and substance the offence falls in the category of Sections mentioned in Section 195 Criminal Procedure Code. Merely by changing the garb or label of an offence which is essentially an offence covered by the provisions of Section 195, prosecution for such an offence cannot be taken cognizance of by misdescribing it or by putting a wrong label on it.
(8) I think these observations and caution note spell out by the Supreme Court squarely apply to the facts of this case. Can the facts of this case it would hardly be possible to separate the element of insult on the so called assault because the two are so interwoven in the episode, that they become merged one with the other. Hence by adopting and resorting to the device of Section 353 which is a camouflage the prosecution could not evade the provisions of Section 195 Criminal Procedure Code in this case. The facts have to be considered as a whole. There cannot be splitting up of the facts. Considering the acts as a whole if these disclose an offence for which a special complaint is necessary under the provision of Section 195, Criminal Procedure Code the Court cannot take cognizance of the case at all unless that special complaint had been filed. In the instant case the very act of obstruction lies in the alleged assault and use of criminal force. In substance the offence in question would fall in the category of Section 195, Criminal Procedure Code and it was not open to bypass its provisions even by choosing to prosecute under Section 353/506 Indian Penal Code. Mr.R.D.Jolly as pointed above had conceded that charge on the facts of this case under Section 353 Indian Penal Code is not made out FIR No. 52/2009 State Vs. Anil Chauhan etc Page No.27 of 34 because the public servant was not prevented or deterred in the discharge of his official duties.
(9) The Magistrate in this case, to my mind, was not empowered by law in this behalf to take cognizance. Hence proceedings initiated by him in the absence of special complaint as required under Section 195 Criminal Procedure Code are bad in law and without jurisdiction. When Magistrate acts in contravention of bar under Section 195 Criminal Procedure Code, such proceeding as a whole are required to be quashed.
(10) In the light of the view taken above the cognizance taken by the Magistrate has to be held to be without jurisdiction and proceedings liable to be quashed. Those are quashed accordingly."
33. In the present case in hand, prosecution has failed to prove any complaint u/s 195 Cr.P.C. Even no witness has been cited in this respect. Thus, prosecution has failed to prove complaint u/s 195 Cr.P.C in this case.
34. Section 353 IPC contemplates - Assault or criminal force to deter public servant from discharge of his duty - Whoever assaults or uses criminal force to any person being a public servant in the execution of his duty as such public servant, or with intent to prevent or deter that person from discharging his duty .......
35. Reverting back back to the facts of the present case, PW2, PW3, PW11 and PW13 reached at the spot when PW2 FIR No. 52/2009 State Vs. Anil Chauhan etc Page No.28 of 34 received the secret information and PW5, PW7 and PW8 reached on receipt of information at PS through PW2. However, the information recorded vide DD does not disclose that it was passed on by PW2 to the PS. PW2 as also other witnesses have stated that they put the barricades and started checking the vehicles and at about 10 p.m, two motorcycles came and on seeing the police party both the motorcycles tried to turn, however,the police managed to stop them. All the police officials were thus, performing their official duties at the time of occurrence, but there is no cogent evidence available on record to show that any of the accused either assaulted or used criminal force to any of the public servants while they were discharging their duties as such public servants or with intent to prevent or deter them from discharging their duty. Rather, it has come on record during cross examination of some of those witnesses that no hurt whatsoever, was caused to any of the members of raiding party. There is no piece of evidence on record showing that any of the accused had used any sort of criminal force against any of those police officials or had any intent to prevent them from discharging their duty. The case of the prosecution as propounded in the chargesheet says that the accused turned back and started going but they were stopped and in that process accused Lalit Yadav fired bullet towards the police party but fortunately, none was hit and the police officials managed to overpower them and snatched arms from him. Accused Anil Chauhan has allegedly shown katta but he did not fire on the police party. PW3 HC Rohtas has stated in cross FIR No. 52/2009 State Vs. Anil Chauhan etc Page No.29 of 34 examination that "it is correct that accused Dharmender did not use any force at the spot prior to his apprehension". In cross examination, PW9 ASI Ramvir has stated that two motorcycles were directed to stop at the barricade and they stopped the same. He also stated that the motorcyclist did not try to run away from there. That being so, Court is in agreement with the contention raised on behalf of accused persons that prosecution has failed to establish their guilt in respect of offence punishable U/s 353/34 IPC.
36. Section 307 IPC contemplates - Attempt to Murder - Whoever does any act with such intention or knowledge.................... The question of intention to kill or the knowledge of death in terms of section 307, is a question of fact and not one of law. The important thing to be borne in mind in determining the question whether an offence u/s 307 IPC is made out is the intention and not the injury. To constitute the offence, it is not necessary that injury capable of causing death, should have been inflicted. Guilty intention or knowledge with which all was done should be seen.
37. Again reverting back to the facts and circumstances of the case, it is an admitted fact that none of the police officials who were checking the vehicles at the time of incident, had suffered any injury. In cross examination, PW2 and PW13 have stated that accused Lalit Yadav took out a katta and fired towards HC Rohtas. None of any other police official has deposed that the accused had FIR No. 52/2009 State Vs. Anil Chauhan etc Page No.30 of 34 fired towards HC Rohtas. The have simply stated that accused Lalit had fired towards the police party. They did not name any specific police official towards whom the fire has been made. Perusal of the statement of PW3 HC Rohtas revealed that he has also stated that accused had fired towards the police party. Thus, even PW3 HC Rohtas has given different version from the statement of PW2 and PW13 that fire was made towards him as he has stated that the boy sitting at rear seat fired towards the police party. PW3 did not state that accused had fired towards him or that fortunately, he saved himself. Except the fire made by accused Lalit Yadav, there is no other evidence to attract section 307 IPC. However, this evidence is itself contradictory. It is the case of the prosecution that accused Anil Chauhan has also taken out a katta and pointed towards the police party. Admittedly, he had made no fire. Accused Pawan Chaudhary was found in possession of a buttondar knife. But he has also not used the same to assault the police officials. PW11 ASI Ramvir has stated that the two motorcycles were directed to stop at the barricade and stopped and the motorcyclist did not try to run away from there. This version of PW11 clearifies that no fire was made by the accused at the spot and that they did not try to run away while the case of the prosecution is that they turned back to flee from the spot. I have also perused the site plan Ex.PW2/B. In the site plan two places Mark A and B have been shown where the accused have stopped the motorcycle and apprehended. At Mark B, two persons were apprehended and from Mark A, one person FIR No. 52/2009 State Vs. Anil Chauhan etc Page No.31 of 34 succeeded to flee. No place has been shown in the site plan where the accused had taken turn and the place from where fire on the police party was made. Position of police officials have also not been shown in the site plan. Thus, the site plan also does not show from where the fire was made and thus, it seems that no fire was made at the spot. None sustained any injury in this case. Though sustaining injury by the complainant is not a prerequisite to attract Section 307 IPC however, in the present case, the evidence is such which is not believable regarding making fire. In my view, section 307 IPC is not made out against the accused persons.
38. Charge has also been framed u/s 25/27 Arms Act against accused Lalit Yadav and u/s 25 Arms Act against accused Pawan and Anil. Admittedly, no empty shell was recovered by the IO from the spot. Only the cartridge which was in the barrel was taken out from the barrel. PW12 has admitted that he did not call the crime team officials at the spot. No finger prints from the weapons i.e. country made pistol and buttondar knife were lifted. He also admitted that similar knife as recovered from accused Pawan are easily available in the market. In the present case, as discussed above, there was sufficient time and opportunity with the police officials to associate the public persons in the investigation to establish recovery of country made pistols and knife. However, the prosecution has failed to join any public witness in this case. So, nonjoining the public persons creates doubt in the prosecution case FIR No. 52/2009 State Vs. Anil Chauhan etc Page No.32 of 34 and it seems that no recovery of kattas and buttondar knife has been effected from accused Lalit, Anil and Pawan. No identification marks were put on them. Also none of the police witnesses except PW12 and PW13 could tell the measurements of the alleged recovered knife and kattas. An important point has been observed in case Law 1998(8) Supreme Court 435 that in absence of independent evidence merely on basis of police officer's evidence about seizure of pistol and cartridge conviction could not be upheld. As per the case of the prosecution, fire has been made but gun powder residue has not been seized from the barrel of the recovered pistol. There was no mark of identification on the recovery pistols and knife. Finger prints were not lifted from the said weapons. So, in view of the evidence available on record, it is not believable in respect of recovery of buttondar knife and country made pistols from the accused persons or use of katta by accused Lalit Yadav.
39. It is well settled principle of law in AIR 2003 SC 3609, State of Punjab Vs.Karnail Singh that : "Golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the views which is favourable to the accused should be adopted.The paramount consideration of the court is to ensure that miscarriage of justice is prevented. A miscarriage of justice which may arise from the FIR No. 52/2009 State Vs. Anil Chauhan etc Page No.33 of 34 acquittal of the guilty is not less than from the conviction of an innocent".
40. In view of the aforesaid discussions, the case of the prosecution is highly doubtful. It is well settled law that benefit of doubt is always given to the accused. Therefore, all the accused persons are entitled to be given the benefit of doubt. Accordingly, benefit of doubt is given to accused Anil Chauhan, Pawan Chaudhary, Lalit Yadav, Dharmender and Yash Kumar and they are acquitted in this case for the commission of offence punishable u/s 186/353/307/34 IPC. Accused Lalit Yadav is also acquitted u/s 25/27 Arms Act and accused Pawan and Anil stands acquitted u/s 25 Arms Act. However, they shall furnish a personal bond in the sum of Rs.20,000/ each with a surety of the like amount u/s 437A Cr.P.C.
File be consigned to record room after the requisite bonds are furnished. Digitally signed by AJAY GUPTA Announced in the open AJAY Location:
Karkardooma court on 11.12.2018 GUPTA Court Date: 2018.12.11 14:57:53 +0530 (AJAY GUPTA) Addl. Sessions Judge02(East) Special Judge (NDPS) KKD COURTS, DELHI.
FIR No. 52/2009 State Vs. Anil Chauhan etc Page No.34 of 34