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Delhi District Court

State vs . Bhupendra Singh on 12 January, 2011

                                                                     State Vs. Bhupendra Singh

      IN THE COURT OF SHRI GURVINDER PAL SINGH 
      ADDL. SESSIONS JUDGE(FTC), SOUTH DISTRICT
                   SAKET COURTS, NEW DELHI



Session Case No.     23/09
ID No: 02403R0003932003


State Vs.                            :        Bhupendra Singh
                                              S/o Sh.  Rohtash Singh
                                              R/o Village Gangtaun,
                                              P. S. Beri, District Jhajjar,
                                              Haryana


FIR No.  414/2003
P.S. Malviya Nagar
U/s    186/353/307/34  IPC & 25/27 Arms Act

Date of Institution                  :        22/07/2003


Date when arguments 
were heard                           :        12/01/2011


Date of Judgment                     :        12/01/2011


JUDGMENT

State Vs. Bhupendra Singh BRIEF FACTS:

The factual matrix of the case of the prosecution against the accused Bhupendra Singh is as follows:

On 28/05/2003 at 6.55 am on Service Road, Sector­7, Pushp Vihar near DMS booth No. 1768, accused Bhupendra Singh alongwith his co accused Yogesh and Jagbir Singh obstructed police officials including SI Ram Niwas, the public servants in discharge of their public function, used criminal force against them, while they were discharging their official duties and fired shot at SI Ram Niwas and the police party with intention or knowledge and under such circumstances that if by that act SI Ram Niwas or any of the members of the police party died, they would have been guilty of murder, while accused Bhupendra Singh was alleged to be in possession of a country made pistol of point .315 Bore and live cartridge without any valid licence.

2. On conclusion of the investigation, charge sheet was filed against the accused Bhupendra and his co accused Yogesh @ Nikki and Jagbir Singh for the offences under Sections SC No. 23/09 2/15 State Vs. Bhupendra Singh 186/353/307/34 IPC and under Sections 25 and 27 Arms Act.

3. After compliance of Section 207 Cr.P.C, the matter was committed to the court of Sessions.

CHARGE:

4. After hearing Ld. Addl. PP, Ld. Defence Counsel and the accused, charge for offences under Sections 186/353/307/34 IPC and 25/27 Arms Act was framed against the accused Bhupendra Singh as well as against his co accused Jagbir Singh and Yogesh to which they pleaded not guilty and claimed trial.

EVIDENCES:

5. Seven prosecution witnesses namely PW1 ASI Lal Chand; PW2 Ct Vijender Singh; PW3 HC Vinod Kumar; PW4 HC Devi Singh; PW5 SI Akhilesh Yadav; PW6 Ct Anil Kumar and PW7 ACP Mahesh Bhardwaj were examined. Thereafter accused Bhupendra Singh absconded and was declared proclaimed offender vide order dated 03/09/2008. Thereafter three more prosecution SC No. 23/09 3/15 State Vs. Bhupendra Singh witnesses as PW8 Inspector Atul Sood, PW9 SI Ram Niwas and PW10 SI Ram Narain were examined in prosecution evidence. Vide judgment dated 19/08/2010, accused Yogesh and Jagbir Singh were acquitted by my Ld. Predecessor.

6. On application of accused Bhupendra Singh through counsel, production warrants of accused Bhupendra Singh were issued to Superintendent Jail as he was detained therein some other case. On 03/11/2010 accused Bhupendra Singh was produced from JC, where he is till date.

7. Earlier examined PW8 Inspector Atul Sood, PW9 SI Ram Niwas and PW10 SI Ram Niwas were recalled and further examined in chief and cross examined.

STATEMENT OF ACCUSED:

8. All incriminating material in evidence were put to accused in his statement under Section 313 Cr.P.C but he alleged to be innocent having been falsely implicated in this case and recoveries SC No. 23/09 4/15 State Vs. Bhupendra Singh planted upon him by the police. Accused Bhupendra Singh denied to lead defence evidence.

9. I have heard the arguments of Ld. Addl. PP for the State, Ld. Counsel for the accused and the accused and have perused the record including the evidence and given my thoughts to the rival contentions put forth.

10. The conclusion of investigation in charge sheet and the evidence of prosecution reveals of the organization of the raiding party pursuant to the secret information on 28/05/2003 by the officials of Special Staff of Delhi Police. Own versions of the investigating agency and the prosecution is belied by their own document Ex PW3/A, DD No. 20, dated 27/05/2003, in respect of which even PW3 HC Vinod Kumar testified that such secret information was received and recorded by PW9 SI Ram Niwas at 5.30 am on 27/05/2003. The officials of Special Staff, Delhi Police, were having peculiar knowledge of vehicle Esteem car being seen in Sector­7 of Pushp Vihar, though in Ex PW3/A the number of said SC No. 23/09 5/15 State Vs. Bhupendra Singh vehicle has been described differently, initially as HR26Q­3877 but later HR26Q­3887. There is no material placed on record nor proved by the prosecution as to what was done by the officials of Special Staff on 27/05/2003 pursuant to receipt of such secret information as regarding locating, searching and apprehending of said vehicle and its occupants on 27/05/2003 or even ascertaining the particulars of the owner or possessor of such vehicle. PW3 has been vivid and clear not once but thrice in his testimony that date of recording of said daily diary was 27th and not 28th.

11. The organized raiding party consisted of sixteen police officials, of which two were in uniform. Plurality of evidence is not the necessity of law. It is the quality of evidence and not the quantity which matters. Herein in this case of prosecution neither there is such quality in the evidence which would suffice material enough for proving its case against the accused, beyond reasonable doubt and thereon to convict him but even the evidence lacks quantity. There is no option but to proceed for adverse inference for non examination of cited material witnesses of the raiding party namely SC No. 23/09 6/15 State Vs. Bhupendra Singh HC Phool Singh, HC Manoj, HC Shyambir, Ct/driver Ramesh and Ct Shailesh who were not examined on behalf of the State, as referred in order dated 05/12/2005.

12. It is the version of the material witnesses examined, PW5 SI Akhlesh Yadav and PW9 SI Ram Niwas, that these officials of raiding party, sixteen in numbers, left the office of Special Staff in two vehicles, one TATA Sumo car and the other Maruti 800. While number of the vehicle TATA Sumo finds mentioned in Ex PW3/A but number of said Maruti 800 is no where mentioned in the entire material placed on record. Even the photographs taken by the official, PW4 HC Devi Singh of Crime Team, Ex PW4/P6 to P10 do not contain of any photograph of Maruti 800. Even PW6 deposed of having come across of one police vehicle and does not say anything about Maruti 800. Of course, the entire team of police officials of raiding party, sixteen in number, could not have traveled in TATA Sumo car alone due to its capacity being not to carry such number of persons. From aforesaid photographs on record what is vivid and clear is the two vehicles, named aforesaid, TATA Sumo and the SC No. 23/09 7/15 State Vs. Bhupendra Singh Esteem car but neither they make clear any damages sustained on any of the vehicle nor these photographs depict any damage sustained on any of the vehicle or on the tyre of the vehicle on account of shots fired.

13. PW7 ACP Mahesh Bhardwaj admitted in the course of cross examination that in the complaint under Section 195 Cr.P.C, Ex PW7/A, there was no mention of any police official being on duty at the time of occurrence.

14. The genesis of the case of the prosecution had been that the police officials including PWs 5 and 9 were discharging their public functions as public servants when they were obstructed and when criminal force was used upon them and when shots were fired allegedly by the accused persons in furtherance of their common intention. The prosecution was duty bound to prove on record as to how and in what manner at the scene of crime such public servants were discharging their claimed public functions. No document has been placed on record nor proved in the course of evidence that the SC No. 23/09 8/15 State Vs. Bhupendra Singh aforesaid sixteen members of the raiding party of officials of Special Staff were discharging any public function in the course of their official duty at the scene of crime. No copy of any daily diary of their leaving the office of Special Staff on 28/05/2003 or for the purpose they left such office has either been placed on record or proved.

15. I, advert now to the alleged scene of crime. It is the public place on service road, Sector­7, Pushp Vihar near DMS Booth No. 1768. The alleged time of offence is 6.55 am on 28/05/2003. It is the matter of common knowledge that at such time on a summer day in the end of month of May, generally near DMS booth people come and go who may be either morning walkers or persons to fetch milk or milk products. It is the case of prosecution and PW5 that proceedings were conducted till 12 noon at the aforesaid place of occurrence. For five hours several officers of the investigating agency had been at the scene of crime, a public place and where as per the afore elicited photographs public persons could be seen in the vicinity of the two vehicles. Yet, none amongst any available public SC No. 23/09 9/15 State Vs. Bhupendra Singh persons, anyone was requested or proceeded against in terms of law for refusal to join in the search of the accused, the Esteem car or seizure of the arms or ammunition. No person was proceeded for any offence under Section 187 IPC.

16. Though it is claimed that there were sixteen police officials in the raiding party but yet on all documents viz. sketches of the arms and ammunition viz. Ex PW6/A, PW6/B and PW6/C; seizure memos of the arms and ammunition Exts. PW6/D, PW6/E, PW6/F, PW6/G and PW6/H as well as on Ex PW6/J; seizure memo of the Esteem car, the attesting witnesses have been only PW9 SI Ram Niwas and Ct Anil, PW6. It casts doubt over involvement of other officials of Special Staff in raid, search and seizure. It is the admitted case of the prosecution, PW5 and PW9 that the Esteem car no. HR26Q­3877 was located at around 6.30 am on 28/05/2003, while it was parked in front of Flat No. 1026, Sector­7, Pushp Vihar. None amongst PWs 5 and 9 could elicit the particulars viz. the names, parentage etc. of the occupant of flat no. 1026 or near by flats. Even none amongst occupants of said flats were joined in the proceedings SC No. 23/09 10/15 State Vs. Bhupendra Singh of raid, search or seizure. More than 24 hours were available with the officiers of Special Staff of Delhi Police pursuant to receipt of secret information on 27/05/2003 for joining the independent witness in raid, search or seizure. Fairness on the part of the investigating agency is absent, since no independent witness has been joined in the raid, search or the seizure.

17. PW5 speaks of the three accused having come from one of the flat at about 6.50 am on the day of occurrence but he could not tell the number of said flat. Per contra, PW9 narrates the three accused came from one of the park. Such aforesaid, flat or even the park have not been made vivid or clear in any of the site plan of the investigating agency. What sixteen officials of Special Staff were doing at the earliest possible opportunity to nab any of the said three accused who had come near the vehicle at 6.50 am to apprehend them? The provisions of Delhi Police Act embody inter alia the duties on the officials of Delhi Police to apprehend any suspect/accused at the earliest possible opportunity. Yet, sixteen officials of raiding party allegedly kept silent, did nothing to SC No. 23/09 11/15 State Vs. Bhupendra Singh apprehend any of the suspects when they came around the Esteem car for which there was previous secret information, or when they boarded the Esteem car and moved it up to the distance of 100 yards. By such permitting to leave the suspects after secret information and organization of raid, there would have been all probability of absconding of such suspects. Even PWs 5 and 9 were evasive to give their mobile numbers, perhaps afraid of scientific investigation which would have revealed the location of their mobiles phones or of themselves.

18. There is nothing on record to reflect or prove any details of owner or possessor of the Esteem car no. HR26Q­3877 nor it was gathered by the officials of Special Staff pursuant to receipt of secret information in the early morning of 27/05/2003. Even in the course of the investigation, nothing has been done to bring on record and prove as to who was the owner or possessor of said Esteem car on 28/05/2003 by ascertaining the vehicle owner details from the registering authority from where such vehicle was registered and on enquiry from such registered owner. Said Esteem car has not SC No. 23/09 12/15 State Vs. Bhupendra Singh been produced and proved in evidence.

19. Even the photographs , aforesaid, no where elicit of any marks of any shot on the body or even tyre of such Esteem car. No mechanical inspection of the TATA Sumo car or Maruti Esteem car were got done by the investigating agency nor proved on record to corroborate the version of the presented case of prosecution.

20. Sanction under Section 39 of Arms Act was required to be proved by the sanctioning authority in terms of law. PW10 SI Ram Narain deposed of having not worked with Sh Atul Katyal, the then Addl. DCP, South, during his such posting when he purportedly accorded sanction Ex PW10/A. The sanction accordingly is not proved in terms of law. Even alleged possession of Ex P1, country made pistol and cartridge, Ex P2, from possession of accused Bhupendra Singh has not been proved against him beyond reasonable doubt as in the course of investigation done at spot on 28/05/2003 for five continuous hours apparently no efforts, much less sincere efforts were done to join any independent witness to search of SC No. 23/09 13/15 State Vs. Bhupendra Singh accused Bhupendra Singh or seizure of Exts P1 and P2 from his person.

21. The members of raiding party were having umpteen time to immobilize the alleged stationary Esteem car no. HR26Q­3877 when it was stated to be found parked at 6.30 am near flat no. 1026, Sector 7, Pushp Vihar, while the accused allegedly arrived twenty minutes later there, allegedly at 6.50 am. The said Esteem car could have been immobilized, in a manner enabling the raiding party to nab the suspects/accused at the earliest possible occasion when they could have reached near the said Esteem car.

Announced in the open court                   (GURVINDER PAL SINGH)
on dated 12.01.2011                   ASJ (FTC)/SD/ NEW DELHI. 




SC No. 23/09                                                                          15/15