Delhi District Court
State vs . Raj Singh Etc. on 20 December, 2011
State Vs. Raj Singh etc.
IN THE COURT OF SHRI GURVINDER PAL SINGH
ADDL. SESSIONS JUDGE(FTC), SOUTH DISTRICT
SAKET COURTS, NEW DELHI
Session Case No. 65/2011
State Vs. : 1. Raj Singh
S/o Sh. Gulab Singh,
R/o Village Kharaundi,
PS Julana, District Jind,
Haryana.
(Proclaimed Offender accused)
2. Jitender
S/o Sh. Abhay Ram,
R/o VillageRakhi Khas,
P.S Narnaund,
District Hissar.
3. Narender @ Puppy
S/o Sh. Deep Singh,
R/o Village Khera Bakhta, PS
Julana, District Jind, Haryana
4. Samir Sharma
S/o Sh. Nandlal Sharma,
R/o House no. 2840, Sector 3,
Rohtak, Haryana.
SC No. 65/11 1/32
State Vs. Raj Singh etc.
Previously R/o 2043, Sector3,
Sonepat Road, Rohtak, Haryana
5. Vishal
S/o Sh. Dharam Pal,R/oK15/5,
Dharampuri, Khyala nearby
Madrasi Mandir, PS Khyala,
New Delhi
FIR No. 393/04
P.S. Malviya Nagar
U/s 186/353/307/34 IPC
Date of Institution : 28/06/2004
Date when arguments
were heard : 05/12/2011
Date of Judgment : 20/12/2011
JUDGMENT
BRIEF FACTS:
The factual matrix of the prosecution case is as follows: On 30.04.04 at 5.00pm, secret informer came to the office of Special Staff, South District and informed ASI Paramjeet Singh (PW3) that 4/5 bad elements of Haryana in Esteem Car no. MH04N SC No. 65/11 2/32 State Vs. Raj Singh etc. 9068 would come via Mehrauli towards Sainik Farm at around 7.00pm to advance threat to a businessmen and these persons would be having illegal arms and can be apprehended. ASI Paramjeet Singh (PW3) informed the Inspector Special Staff who directed him to proceed forthwith. ASI Paramjeet Singh (PW3) recorded daily diary no. 9 and formed a raiding party consisting of himself, SI Suresh Sharma, HC Sheo Ram (PW4), HC Raj Kumar, HC Rajesh Kumar (PW9), HC Ram Kishan with driver Ct. Subhash in official vehicle Tempo Traveller No. DL1V2812; also SI Akhilesh Yadav, HC Shyamvir, HC Hawa Singh (PW8), HC Manoj (PW1), Ct. Jai Prakash (PW6) with driver Ct. Mahesh in Govt. vehicle no. DL1CJ0568. Amongst them, HC Manoj (PW1) and Ct. Jai Prakash (PW6) were in uniform. Secret informer also accompanied the raiding party in Qualis vehicle. The raiding party reached Tpoint, Lado Sarai, M.B. Road at 6.00pm. 5/6 passerbyes were requested to join the raiding party but all went away without disclosing their identity. Raiding staff of Qualis vehicle was deputed at near Tpoint. HC Manoj (PW1) and Ct. Jai Prakash (PW6) were directed to give signal after noticing Esteem car aforesaid no.
MH04N9068. Tempo traveller was placed 50 yards ahead of Qualis SC No. 65/11 3/32 State Vs. Raj Singh etc. on M.B. Road and its Staff was directed that in case any bad elements were seen coming in the Car then the car is to be stopped. At about 7.15pm, from the side of Mehrauli, Esteem Car No. MH04N9068 of white colour came and on the pointing out of secret informer HC Manoj Kumar (PW1) gave signal to car to stop but instead the car driver accelerated the car. Having seen Esteem car running away, ASI Paramjeet Singh (PW3) chased the said car in Tempo Traveller and after 300 yards, the said Tempo Traveller got Esteem car moved towards pavement. From the back, Qualis vehicle came and stopped behind of the Esteem car. Having seen surrounded themselves, from the bad elements amongst the car, accused Raj Singh (PO accused) sitting on the side of driver seat, opened the door of car and fired twice towards the police party. ASI Paramjeet Singh (PW3) alighted from Tempo Traveller, without caring for his life for safety of his staff and passerbyes and from his service revolver fired twice in air. ASI Paramjeet Singh (PW3) with HC Sheo Ram (PW4) apprehended accused Raj Singh (PO accused) and seized .32 bore revolver which was containing two empty cartridges and three live cartridges. Accused Vishal sitting on the back seat of car towards window also SC No. 65/11 4/32 State Vs. Raj Singh etc. had opened out the window and tried to fire from .315 bore country made pistol but HC Manoj Kumar (PW1) apprehended accused Vishal with the aid of HC Ram Kishan. The country made pistol on checking was found loaded. From worn jeans of accused Vishal from right pocket, two live cartridges were recovered. Car was being driven by accused Narender @ Puppy who was apprehended by HC Rajesh (PW9). Accused Jitender was on the back seat of the car who was apprehended by HC Hawa Singh (PW8). Accused Samir was apprehended by Ct. Jai Prakash (PW6) and from his possession from right dub of pant, an air pistol was recovered. From the back pocket of the driver seat of the Esteem Car, 320 currency notes of denomination of Rs. 100/ each were recovered amounting to Rs. 32,000/.
On receipt of DD No. 19 at about 7.39pm, ASI Mahipal (PW7) with Ct. Virender (PW10) went to the place of occurrence, met ASI Paramjeet Singh (PW3) with Special Staff there.
2. Arms, ammunitions, currency notes, car and all accused were handed over by ASI Paramjeet Singh (PW3) to ASI Mahipal SC No. 65/11 5/32 State Vs. Raj Singh etc. (PW7). Sketches of arms and ammunitions recovered were prepared by ASI Mahipal (PW7) who kept them in pullanda and seized them. Sketch of air pistol was also prepared and it was also seized. Case properties were sealed in separate pullandas and duly sealed. Seal after use was handed over to HC Manoj Kumar (PW1). ASI Mahipal (PW7) recorded statement of ASI Paramjeet Singh (PW3), made endorsement and gave it to Ct. Virender for registration of FIR. ASI Mahipal (PW7) prepared site plan on pointing out of ASI Paramjeet Singh (PW3). Accused were arrested. Their personal search were taken. Disclosure statements of the accused were recorded. Case properties were deposited in Malkhana. Later, case properties were sent to FSL and FSL result was obtained.
3. Sanction under Section 39 Arms Act was obtained from the DCP concerned. ACP Harbans Singh (also as PW10 to be read as PW10A) also filed complaint under Section 195 Cr.P.C. on 24.06.04.
4. On completion of investigation, charge sheet for offences under Section 186 IPC, Section 353 IPC, Section 307 IPC and 34 IPC SC No. 65/11 6/32 State Vs. Raj Singh etc. & 25/27 Arms Act was filed.
5. After the completion of the requirements under Section 207 Cr.P.C., case was committed to the court of Sessions. CHARGE
6. Charges for offences under Section 186/34 IPC; 353/34 IPC and 307/34 IPC against all accused and under Section 25/27 Arms Act against accused Raj Singh (PO accused) were framed by my Ld. Predecessor on 28.09.04. Accused pleaded not guilty and claimed trial.
7. On 08.02.05, amended charge was framed against all accused for offences under Section 186/34 IPC; 353/34 IPC and 307/34 IPC. Accused pleaded not guilty and claimed trial. WITNESSES:
8. To connect the accused with the offences charged, the prosecution has examined in all 12 witnesses namely HC Manoj SC No. 65/11 7/32 State Vs. Raj Singh etc. Kumar (PW1); HC Bir Singh (PW2); ASI Paramjeet (PW3); HC Sheo Ram Singh (PW4); Ct. Sushil (PW5); Ct. Jai Prakash (PW6); ASI Mahipal Singh (PW7); HC Hawa Singh (PW8); HC Rajesh Kumar (PW9); Ct. Virender Kumar ( PW10 ); Retired ACP Sh. Harbans Singh ( also as PW10 to be read as PW10A); Sh. Anil Shukla, DIG (PW11). STATEMENTS OF ACCUSED:
9. Thereafter accused persons were examined under Section 313 Cr.P.C. All incriminating material in evidence was put to the accused persons. Accused persons pleaded innocence and false implication. All accused persons denied to lead defence evidence.
10. Accused Jitender and Narender also stated that they were apprehended from village Rai and falsely implicated in this case. Accused Narender stated that on 29.04.04 or 30.04.04, Esteem No. 9068, owned by his covillager, was struck with Qualis vehicle of police officials at VillageRai, Main Road at bus stand and then he was driving said vehicle no. 9068. He and accused Jitender, who resided SC No. 65/11 8/32 State Vs. Raj Singh etc. nearby his residence and was then with him were brought by the police to Delhi and falsely implicated in this case.
11. Accused Vishal stated that ASI Paramjeet Singh (PW3) called him by telephone in the evening of 29.04.04 to Crime Branch, South District for making inquiries in matter regarding his alleged threats to some persons. He and accused Samir were called and made to sit in their office. Then, they were handed over to officials of PS Malviya Nagar.
12. Accused Samir stated that ASI Paramjeet had sent a police official on 28.04.04 to his farm at Khyala at K15/5, Dharampuri, Khyala and he was called for interrogation for some quarrel or threat. On 29.04.04 in the evening, he and Vishal had gone to Office of Special Staff at South District where they were inquired. They were made to sit there and were asked to make calls at their homes as they were being arrested and falsely implicated in this case. SC No. 65/11 9/32
State Vs. Raj Singh etc. ARGUMENTS
13. I have heard the arguments of Ld. Addl. PP for the State, the defence counsel and have perused the record including the evidence led and given my thoughts to the rival contentions put forth.
14. Ld. Addl. PP argued that from the testimonies of members of the raiding party namely HC Manoj Kumar (PW1), ASI Paramjeet (PW3), HC Sheo Ram Singh (PW4), Ct. Jai Prakash (PW6), HC Hawa Singh (PW8) and HC Rajesh Kumar (PW9), the prosecution has been successful in proving that the accused persons sharing common intention voluntarily obstructed the members of the raiding party, the public servants in discharging of their duties, used criminal force upon them also fired upon them with intention or knowledge and under circumstances that by that had they caused death of any of those public servants, they would have been guilty of murder. Ld. Addl. PP for the State has prayed for conviction of the accused.
15. Ld. Defence counsel argued that the put forth story is a SC No. 65/11 10/32 State Vs. Raj Singh etc. farce, concocted to falsely implicate the accused in this false case which is apparent on the face of record by material contradictions, severe infirmities and inconsistencies borne out of the testimonies of the material witnesses examined who have all testified at variance on material aspects making their version lacking credence and these witnesses are not reliable nor credit worthy to be believed upon for convicting any or all accused. Ld. Defence counsel has prayed for acquittal of the accused.
16. HC Bir Singh (PW2) being Duty Officer recorded FIR No. 393/04 under Section 186/353/307/34 IPC and Section 25/27 Arms Act, copy of which he has proved as Ex. PW2/A.
17. Ct. Sushil (PW5) took three sealed parcels on 10.06.04 from Malkhana Moharrar to FSL.
18. Retired ACP Harbans Singh [(PW10 to be read as PW10A), (as he was numbered PW10 by my Ld. Predecessor inadvertently though previously Ct. Virender Kumar was examined SC No. 65/11 11/32 State Vs. Raj Singh etc. as PW10)] had prepared and filed complaint under Section 195 Cr.P.C. against accused persons, Ex. PW7/H.
19. Sh. Anil Shukla (PW11), the then Addl. DCP, South District accorded the sanction under Section 39 Arms Act, Ex. PW7/G for accused Raj Singh and Vishal.
20. The case of the prosecution primarily hinges on the testimonies of the material witnesses, the members of the raiding party namely HC Manoj Kumar (PW1), ASI Paramjeet (PW3), HC Sheo Ram Singh (PW4), Ct. Jai Prakash (PW6), HC Hawa Singh (PW8) and HC Rajesh Kumar (PW9). ASI Mahipal Singh (PW7) alongwith Ct. Virender (PW10) from PS Malviya Nagar had arrived at the scene after the alleged apprehension of the accused. ASI Mahipal Singh (PW7) is the investigating officer. Ct. Virender Kumar (PW10) accompanied ASI Mahipal Singh (PW7) in investigation and also had taken tehrir scribed by ASI Mahipal Singh (PW7) to PS for getting FIR registered.
SC No. 65/11 12/32
State Vs. Raj Singh etc.
21. There is no principle of law that without corroboration by independent witnesses, testimony of police witnesses can not be relied upon; presumption that a person acts honestly applies as much in favour of police personal as of other person. It is also extremely unfair to any Government servant to reject his evidence by merely giving him a label. Yet, the truthfulness or veracity of the Government servants/police witnesses in the appreciation of oral evidence is to be seen by evaluating their evidence in Court with the material on record to base conviction of such testimonies. For basing conviction of accused, testimonies of such police witnesses need to be free from blemishes, material contradictions, infirmities and embellishments going to the root of the matter to check and shake the basic version and core of the prosecution case. In this backdrop, the evidence of the aforesaid material witnesses shall be herein after appreciated in detail.
22. ASI Paramjeet (PW3) testified that on 30.04.04 at 5.00pm, he received the secret information of 4/5 bad elements will be coming in an Esteem Car No. MH04N9068 through Sainik Farm, SC No. 65/11 13/32 State Vs. Raj Singh etc. Mehrauli at about 7.00pm, they might be having illegal arms and if apprehended, arms can be recovered from them. Such information was passed on to Inspector Rajender Singh who directed PW3 to form a raiding party. ASI Paramjeet (PW3) of the Special Staff of South District recorded the said information in DD No. 9. No copy of such daily diary has been produced in the court alongwith chargesheet nor has it been proved in accordance with law. PW3 organized the raiding party and the members of the raiding party proceeded in Government vehicle Tempo Traveller No. DL1V2812 and Qualis No. DL 1CJ 0568 to Tpoint, Lado Sarai. 4/5 passerbyes were requested to join the raid but all left with disclosing their identity. ASI Paramjeet (PW3) directed HC Manoj (PW1) and Ct. Jai Prakash (PW6) to be present near Qualis at Tpoint to stop Esteem Car No. MH04N9068 when it comes; they parked their Tempo Traveller at a distance of about 50 yards from the Qualis, took their position at a distance. At about 7.15pm, Esteem Car No. MH04N9068 of white colour came at Tpoint. HC Manoj Kumar (PW1) signalled the driver of the said Esteem car to stop the car but without stopping the car, the driver started racing with them. ASI Paramjeet (PW3) SC No. 65/11 14/32 State Vs. Raj Singh etc. immediately started their Tempo Traveller and pressed their Tempo Traveller by the side of Esteem Car, forced them to stop the car at a distance of 300 meters from the Tpoint. The Qualis also came from behind and stopped just at the back of Esteem Car. Accused Raj Singh (now PO accused) sitting on the front seat of the said Esteem Car by the side of the driver, opened the door of that side and fired towards police party. PW3 also immediately fired two rounds from his service revolver and thereafter he (PW3) alongwith HC Sheo Ram (PW4) apprehended accused Raj Singh (now PO accused), snatched the revolver Ex. P5 from his right hand. Accused Vishal was sitting on the back seat of Esteem Car and he also opened the door and fired upon the police team, but HC Manoj Kumar (PW1) and HC Ram Kishan (not examined) apprehended and snatched the country made pistol (Katta) Ex. P1( also exhibited as Ex. P4 during the testimony of PW4) from the hands of accused Vishal. Accused Narender was driving the car and was apprehended by HC Rajesh (PW9). Accused Sameer present in the car was also apprehended by Ct. Jai Prakash (PW6) and one air pistol Ex. PW6/P1 was recovered from his possession. Accused Jitender was also SC No. 65/11 15/32 State Vs. Raj Singh etc. present in the car and was apprehended by HC Hawa Singh (PW8). On opening the revolver Ex. P5 recovered from accused Raj Singh (now PO accused) it was found containing two fired cartridges Ex. P6/1 and 2 and three live cartridges Ex. P6/3 to 5. On opening the country made pistol (Katta) Ex. P1 (also exhibited as Ex. P4 in the testimony of PW4) it was found containing one (then live) cartridge Ex. P2 and on the search of accused Vishal two (then live) cartridges Ex. P3 and Ex. P4 were recovered from his pocket. On the search of the Esteem Car Rs. 32,000/ in the form of 320 notes of Rs. 100 denomination collectively Ex. P7 were recovered from the back side pocket of the driver seat of Maruti Esteem Car No. MH04N9068. ASI Paramjeet (PW3) testified that they immediately informed the PCR. ASI Mahipal Singh (PW7) came on the spot and recorded statement Ex. PW3/A of PW3 and seized the car vide memo Ex. PW3/B and aforesaid cash vide memo Ex. PW3/C. The aforesaid empty cartridges fired by ASI Paramjeet (PW3) were also seized vide memo Ex. PW3/D. Sketch Ex. PW3/E of the revolver Ex. P5 and cartridges Ex. P6/1 to 5 recovered from accused Raj Singh (now PO accused) was prepared by PW7; the said articles were kept in a SC No. 65/11 16/32 State Vs. Raj Singh etc. parcel sealed with the seal of MP and seized vide memo Ex. PW3/F. HC Manoj Kumar (PW1) handed over the country made pistol (Katta) Ex. P1, .315 bore (also exhibited as Ex. P4 in the testimony of PW4) and three live cartridges Exts. P2 to P4 recovered from the possession of accused Vishal and ASI Mahipal (PW7) prepared the sketch of the country made pistol (Katta) as Ex. PW1/F and seized them vide memo Ex. PW1/G. Ct. Jai Prakash (PW6) handed over the accused Sameer Sharma and air pistol Ex. PW6/P1 to ASI Mahipal (PW7). ASI Mahipal (PW7) prepared sketch of said air pistol as Ex. PW6/A and seized it vide memo Ex. PW6/B. ASI Paramjeet (PW3) also handed over to ASI Mahipal (PW7) two fired and two empty cartridges which he had fired from his service revolver which were seized by ASI Mahipal (PW7) vide memo Ex. PW3/D. FSL forms were filled up by ASI Mahipal (PW7). ASI Mahipal (PW7) recorded statement Ex. PW3/A of PW3, made endorsement Ex. PW7/A and handed over rukka to Ct. Virender (PW10) who took it to PS and gave it to HC Bir Singh (PW2) Duty Officer who recorded the FIR, copy Ex. PW2/A. Copy of the FIR and rukka were brought back by PW10 Ct. Virender. ASI Mahipal prepared site plan Ex. PW7/B at SC No. 65/11 17/32 State Vs. Raj Singh etc. the instance of ASI Paramjeet and arrested accused vide memos Exts. PW2/A to E. The recovered arms and ammunitions from the possession of accused aforesaid were got examined from FSL whose report proved on record is Ex. PY. Personal search of accused were conducted vide memos Exts. PW1/A to PW1/ E. PW7 recorded the disclosure statement of accused persons namely Raj Singh (now PO accused), Vishal, Sameer and Jitender as Ex. PW7/C to Ex. PW7/F. The mobile phone of accused Raj Singh (now PO accused) and Vishal were seized vide memo Ex. PW10/A and B respectively. The then ACP Harbans Singh (PW10) herein after referred as PW10A also made complaint Ex. PW7/H under Section 195 Cr.P.C. for prosecution for obstructing and assaulting the public servants/police officials in discharging of their official duty against the accused persons.
23. There are several material contradictions, severe infirmities embedded in the testimonies of the members of the raiding party which go to the root of the matter to check and shake the basic version and core of the prosecution case. Though the members of SC No. 65/11 18/32 State Vs. Raj Singh etc. the raiding party were stated to be together at the scene of crime but yet on several material counts have testified at complete variance with version of each other, which are elicited herein below.
24. HC Manoj Kumar (PW1) and HC Rajesh Kumar (PW9) testified that no barricades were used where the vehicle Esteem Car no. MH04N 9068 of accused had arrived. Per contra, Ct. Jai Prakash (PW6) testified that the barricades were put on such road. The organizer of the raiding party, ASI Paramjeet (PW3) testified that only he was having weapon amongst members of his team. HC Sheo Ram Singh (PW4) testified that ASI Paramjeet (PW3) and HC Manoj (PW1) were having fire arms while he (HC Sheo Ram Singh) himself was not having any fire arm with him. Ct. Jai Prakash (PW6) testified that one small pistol was with every member of the raiding party and one carbine each was with him (PW6) and HC Manoj (PW1). HC Hawa Singh (PW8) deposed that he was having pistol with him at that time.
25. ASI Paramjeet (PW3) testified that two police persons SC No. 65/11 19/32 State Vs. Raj Singh etc. were in uniform. HC Manoj (PW1) testified that he (PW1) and Ct. Jai Prakash (PW6) were in uniform while other police officials were in plain dress. The Investigating Officer ASI Mahipal Singh (PW7) who had reached at the scene of crime after alleged apprehension of the accused, testified that none of the police officials, the members of the raiding party there was in uniform.
26. HC Manoj Kumar (PW1), the official, member of the raiding party, allegedly did the crucial role of stated given signal to Esteem Car of accused to stop, when Esteem Car did not stop then having chased the Esteem Car in the vehicle, described the spot at a complete variance with the presented case of prosecution. HC Manoj Kumar (PW1) stated that the road at the spot was a single road and there was no side road. Such version is contradictory to the double road i.e. divider existing in the middle of the road shown in site plan Ex. PW7/B scribed by ASI Mahipal Singh (PW7). Such infirmity casts serious doubt over presence of HC Manoj Kumar (PW1) at the scene of crime as he alleged.
SC No. 65/11 20/32
State Vs. Raj Singh etc.
27. Even in his crossexamination HC Manoj Kumar (PW1) stated that the case for demand of ransom was already previously registered and he further stated that they were present at the spot in connection with the investigation of that case. Per contra the genesis of the prosecution version had been of receipt of secret information by ASI Paramjeet (PW3) of 4/5 bad elements of Haryana coming in Esteem Car no. MH04N 9068 via Mehrauli towards Sainik Farm to advance threat to a businessmen and these persons would be having illegal arms and can be apprehended. Such version aforesaid of HC Manoj Kumar (PW1) in his cross examination brings into fore altogether contradictory version regarding the reason and the purpose of the members of the raiding party to be present at the scene of crime, which is in total contradiction with the presented case of prosecution.
28. Even Ct. Jai Prakash (PW6) in his crossexamination elicited that when they had apprehended the accused then the accused persons had come at Lado Sarai where they had assembled. It is not the case of prosecution that the accused had assembled at SC No. 65/11 21/32 State Vs. Raj Singh etc. Lado Sarai.
29. ASI Mahipal Singh (PW7), the Investigating Officer testified of having reached the spot at 8.00pm. Ct. Jai Prakash (PW6) and HC Rajesh Kumar (PW9) testified of such time to be 7.45pm. ASI Paramjeet (PW3) elicited of his statement having been recorded by ASI Mahipal Singh (PW7) at 8.00pm. HC Manoj Kumar (PW1) says ASI Mahipal Singh (PW7) reached at the spot at about 10.30pm. After reaching the spot ASI Mahipal Singh (PW7) was handed over the arms and ammunition by ASI Paramjeet (PW3) whose sketches were prepared and they were sealed in parcels, Form FSL were filled up. Also statement Ex. PW3/A of PW3 was then recorded. If version of ASI Mahipal Singh (PW7), IO is to be believed then he reached at the spot at 8.00pm, so how he could have recorded the statement of ASI Paramjeet (PW3) running into 3 ½ sheets at 8.00pm since he had done all the above elicited work of investigation. Also PW6 and PW9 have testified of ASI Mahipal Singh (PW7) having reached at 7.45pm as aforesaid. SC No. 65/11 22/32
State Vs. Raj Singh etc.
30. ASI Mahipal Singh (PW7) testified that he left the spot at about 2.00am. Ct. Virender (PW10) who had accompanied ASI Mahipal Singh (PW7) testified that he alongwith police staff had left the spot at about 1.00am. HC Manoj Kumar (PW1) stated that the entire team of crime branch which had gone to the spot remained there at spot till 2.30am and he also remained at the spot upto 2.30am. ASI Paramjeet (PW3) stated that he left the spot finally at about 12.30night. HC Sheo Ram Singh (PW4) stated that he left the spot finally at about 1.30am and all the members of the raiding party left the spot simultaneously. HC Rajesh Kumar (PW9) and Ct. Jai Prakash (PW10) say they all had left the spot at about 12.30 night.
31. Ct. Jai Prakash (PW6) says Ct. Virender (PW10) took the rukka from the spot at about 9.00pm. Per contra ASI Mahipal Singh (PW7) says he sent Ct. Virender with rukka at 11.00pm from the spot.
32. It is the version emanating from the charge sheet and case of the prosecution that DD No. 9 was recorded on 30.04.04 in the SC No. 65/11 23/32 State Vs. Raj Singh etc. daily diary of Special Staff before departure of the members of the raiding party. Also tehrir Ex. PW7/A finds mention that ASI Mahipal Singh (PW7) got copy of DD No. 19 from PP Saket on 30.04.04 and then he proceeded to the scene of crime. None of the aforesaid daily diaries i.e. DD No. 9 of Special Staff and DD No. 19 of PP Saket, both dated 30.04.04 have been filed nor proved in accordance with law. Also is mentioned in tehrir Ex. PW7/A that upon calling the Crime Team had come at the spot. No report of Crime Team has been placed with charge sheet nor proved. No witness amongst members of the Crime Team has been cited nor examined as prosecution witness. No photographs of the spot have been placed on record. It gains importance when Ct. Jai Prakash (PW6) testified that the fired bullets had hit the road and not any person. No photographs have been placed on record depicting the location of such bullets striking the road in corroboration of the presented case of prosecution. ASI Paramjeet (PW3) feigned ignorance as to whether fired bullets had hit any object i.e. tree, road etc. No earth control was lifted from the scene of crime to depict any any pellets or remnants of bullet fired to be present at the spot. SC No. 65/11 24/32
State Vs. Raj Singh etc. Tehrir Ex. PW7/A finds mention of ASI Mahipal Singh (PW7) having met only ASI Paramjeet (PW3), HC Manoj Kumar (PW1) Ct. Jai Prakash (PW6) In tehrir, there is no mention of ASI Mahipal Singh (PW7) having met any other members of the raiding party except PWs 1, 3 and 6. ASI Mahipal Singh (PW7) in his cross examination in court testified that he met 12 officials of Staff but mentioned names of 13 officials in site plan Ex. PW7/B. HC Manoj Kumar (PW1) and HC Sheo Ram Singh (PW4) testified that statements of all members of the raiding party were recorded at the spot. The members of the raiding party in the two official vehicles were in all numbering 13. ASI Mahipal Singh (PW7), the Investigating Officer testified of having recorded statement of 8 witnesses of raiding party there. In his entire testimony, ASI Mahipal Singh (PW7) did not whisper of either calling of Crime Team at the spot or arrival of Crime Team at the spot. It is the case of ASI Mahipal Singh (PW7) that he had recorded statement of 8 prosecution witnesses under street light. In site plan, Ex. PW7/B no street light at the spot was shown.
33. Per contra to prosecution version, HC Manoj Kumar SC No. 65/11 25/32 State Vs. Raj Singh etc. (PW1) testified that local police of PS Malviya Nagar was informed at 7.45pm and prior to sending of said information all accused were arrested. HC Sheo Ram Singh (PW4) stated that ASI Paramjeet informed the PCR then ASI Mahipal Singh (PW7)and Ct. Virender (PW10) came at the spot. No official of PCR has been cited nor examined. No copy of PCR form has been placed on record nor proved. Others members of the raiding party do not say of ASI Paramjeet (PW3) having informed the PCR.
34. Per contra to prosecution case, HC Sheo Ram Singh (PW4) testified of the fact that accused tried to run away but were surrounded and then they were apprehended. Other members of the raiding party examined do not say so.
35. Ct. Jai Prakash (PW6) testified that it was SI Akhilesh who briefed the raiding team members before departing from office of Special Staff and it was SI Akhilesh who requested 5/6 passerbyes to join the raid and they all refused. Other examined material prosecution witnesses say it was ASI Paramjeet (PW3) SC No. 65/11 26/32 State Vs. Raj Singh etc. who briefed others and they do not say at all of 5/6 passerbyes were asked by SI Akhilesh to join the investigation.
36. Ct. Jai Prakash (PW6) stated that accused Raj Singh (P.O accused) fired aiming at ASI Paramjeet (PW3) from a distance of 25/30 feet. ASI Paramjeet (PW3) himself stated that accused Raj Singh (P.O accused) fired at police party from a distance of 8feet. ASI Paramjeet (PW3) did not say that accused Raj Singh (P.O accused) had aimed at him while ASI Paramjeet (PW3) was not knowing if the fired bullet had hit any object but Ct. Jai Prakash (PW6) categorically stated that the fired bullet had hit the road and not any person.
37. Ct. Jai Prakash (PW6) stated that he signed only on the sketch Ex. PW6/A of air pistol and not on any other document(s). Signatures of Ct. Jai Prakash (PW6) also appear on seizure memo Ex. PW6/B of air pistol Ex. PW6/P1. PW6 further stated that public persons were standing at bus stand at spot who were asked to join investigation. None amongst other examined material witnesses SC No. 65/11 27/32 State Vs. Raj Singh etc. have testified so.
38. HC Hawa Singh (PW8) testified that when the Esteem Car of the accused was being chased, the speed of their Tempo Traveller was 20/30 km/hour. HC Manoj Kumar (PW1) testified that when the Esteem Car of accused was chased then the speed of said Esteem Car was 40/50 km/hour. If that is so, how would the prosecution version go down anybody's throat that after chasing the Esteem Car for a distance of 300 meters, the Tempo Traveller got the Esteem Car stopped by compelling it to move towards pavement?
39. HC Hawa Singh (PW8) stated that no vehicle came in between when they were chasing the Esteem Car of accused. Per contra HC Manoj Kumar (PW1) stated that 2 or 4 or 5 vehicles were in between their vehicle and car of accused. It is the case of prosecution that the Tempo Traveller of police party gave the chase to Esteem Car for 300 yards when it got it stopped. Per contra, HC Rajesh Kumar (PW9) stated that they chased the car of accused in their Tempo Traveller to near about 500 meters far from Tpoint of SC No. 65/11 28/32 State Vs. Raj Singh etc. Lado Sarai.
40. ASI Paramjeet (PW3) had got the specific and concrete information at 5.00pm on 30.04.04 of the number and description of vehicle in which the stated accused were to come at the scene of crime. Beyond midnight, the proceedings were being carried on at the scene of crime, the busy Mehrauli Badarpur Road (MB Road), where numerous public persons, vehicles admittedly moved in such period. Yet feeble plee has been churned of refusal of few persons to join investigation despite asking. None amongst the refusing persons had been proceeded against as per law. It was foremost duty of the officers of investigating agency as well as the members of the raiding party to have made sincere efforts to join independent witnesses in the raid, apprehension of accused, search and seizure thereof, so as to lend credence to their version.
41. SI Suresh Sharma and SI Akhilesh were stated to be the members of the raiding party spearheaded by ASI Paramjeet (PW3). It is not borne out of record as to why none amongst these two Sub SC No. 65/11 29/32 State Vs. Raj Singh etc. Inspectors, though having allegedly participated the raid, but were not made the head of the raiding party. Even all documents viz the sketches Exts. PW3/E, PW1/F, PW6/A, seizure memos Exts. PW3/B, PW3/C, PW3/D, PW3/F, PW1/G, PW6/B, site plan Ex. PW7/B, arrest memos of accused, personal search memos of accused, do not find any signatures of any of these two SubInspectors as attesting witnesses on them. Also none amongst these two SubInspectors has either been cited as prosecution witness nor examined in the court. Their presence and participation in organized raid and proceedings comes under cloud of doubt.
42. The cumulative effect of entire above discussions is that the embedded severe infirmities, material contradictions in the testimonies of examined material witnesses going to the root of matter to shake the basic version and core of the prosecution case, seen in the backdrop of absence of any scientific evidence collected at the spot elicited aforesaid, not placing report of crime team or photographs at spot for which adverse inference is drawn, none of the aforesaid two SubInspectors despite being the members of the alleged raiding party SC No. 65/11 30/32 State Vs. Raj Singh etc. having been put in command, no signatures of any of the two Sub Inspectors existing on any of the documents prepared at the spot elicited above, non joining of any public witness(es) despite admitted availability in investigation, apprehension of accused, search of accused, seizure of case property from accused clearly project that the case of prosecution is not free from blemishes. On a busy road it is alleged by material witnesses of prosecution that accused had fired upon aiming at police party, no one is injured and no public witness is joined. In this backdrop of entire facts, sequence of occurrence, how can the officers of investigating agency expect the Court to believe them? The testimonies of material witnesses neither inspire confidence nor appear reliable nor trustworthy to base conviction of any of the accused on them for the offences charged in the absence of non joining of the independent witnesses in investigation and organization of the raid in the present set of facts and circumstances. I am of the considered opinion that prosecution has not been able to prove its case against the accused beyond reasonable doubt. Accused persons except accused Raj Singh (P.O) are held not guilty and acquitted for the offences charged. Bail bonds of the accused except SC No. 65/11 31/32 State Vs. Raj Singh etc. accsued Raj Singh (P.O) are cancelled and their respective sureties are discharged. File be consigned to record room.
File may be recalled on appearance or production of proclaimed offender accused Raj Singh.
Announced in the open court (GURVINDER PAL SINGH)
on dated 20/12/2011 ASJ (FTC)/SD/ NEW DELHI
SC No. 65/11 32/32