Delhi District Court
State vs . (1) Pratap on 4 May, 2012
IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS
JUDGEII (NORTHWEST): ROHINI COURTS: DELHI
Sessions Case No. 139/2011
Unique Case ID: 02401R0569872005
State Vs. (1) Pratap
S/o Surtya
R/o Village Modapatti.
PS and Distt. Dausa, Rajasthan.
(Acquitted)
(2) Jansi
S/o Surtya
R/o Village Modapatti.
PS and Distt. Dausa, Rajasthan.
(Acquitted)
(3) Chiranji
S/o Badaniya
R/o Village Modapatti.
PS and Distt. Dausa, Rajasthan.
(Since Expired)
(4) Subhash Garg
S/o Nuna Mal
R/o Village Karam Garh
Distt.: Jind, Haryana.
(Acquitted)
(5) Arvind Rana
S/o Samay Singh
R/o Village Munges Pur, Delhi.
(Acquitted)
State Vs. Pratap etc., FIR No. 118/2005, PS Alipur Page 1 of 31
FIR No. : 118/2005
Police Station : Alipur
Under Section : 399/402/353/186/307 IPC
25/27/54/59 Arms Act.
Date of committal to Sessions Court : 03.07.2006
Date on which orders were reserved : 04.05.2012
Date on which judgment pronounced : 04.05.2012
JUDGMENT
Brief Facts:
(1) As per the allegations, on 01.04.2005 at about 11:15 PM the accused Pratap, Chiranji (now expired), Jansi, Arvind Rana and Subhash, along with their associates namely Ramji Lal, Ram Ganesh and Kalia (not arrested), in furtherance of their common intention and duly armed with deadly weapons i.e. desi katta and buttondar knives, had assembled at Sardar Mahender Singh Ka Plot, near Mukhmelpur Chowk, GTK Road, Delhi, and made preparation for committing dacoity on the highway on the ongoing tempos and trucks. It is further alleged that all the aforesaid accused persons had also fired three rounds towards the police raiding party and obstructed the members of police party (Government servants) in discharge of their official duties and assaulted them. It is further alleged that at the time of his apprehension by the police party, the accused Subhash was carrying one desi katta with two live cartridges without license in contravention of the Notification issued by Delhi State Vs. Pratap etc., FIR No. 118/2005, PS Alipur Page 2 of 31 Administration, and by the said desi katta he fired upon the police party. As against the accused Arvind and Jansi it is alleged that they were found in possession of one buttondar knife each at the time of their apprehension by the police party.
Case of prosecution in brief:
(2) The case of the prosecution is that on 01.04.2005 at about 10.35 PM a secret informer informed SI Jagbir Singh that 78 miscreants were sitting in the plot of Sardar Mahender Singh near Mukhmelpur Chowk, GTK Road, Delhi, who were having illegal arms and were making preparation to commit dacoity on the tempos and trucks plying on the highway and they could be apprehended if immediately raid would be conducted. SI Jagbir Singh passed on this secret information to SHO Inspector Inder Singh who formed a raiding party comprising of himself, SI Jagbir Singh, HC Naresh, HC Ramesh, HC Jai Bhagwan, HC Surender, Ct. Pooran, Ct. Bal Kishan, Ct. Dilbagh and Ct. Narender and after taking official arms from the Malkhana, left the police station in two four wheeler vehicles and reached at the BDO Block, Alipur. On the way, SI Jagbir Singh and Inspector Inder Singh asked 45 public persons to join the raiding party but none agreed and left the place without informing their names and address. Thereafter, Inspector Inder Singh directed SI Jagbir Singh to hear the conversation of the assembled persons and also told him that in case if the secret information is found to be State Vs. Pratap etc., FIR No. 118/2005, PS Alipur Page 3 of 31 correct then to challenge them. Inspector Inder Singh divided the raiding party into two parts and all the members of the raiding parties took their respective positions one on the eastern side and the other on the western side of the plot of Sardar Mahender Singh. SI Jagbir Singh took his position near the boundary wall of the plot of Sardar Mahender Singh and concealed himself behind an electricity pole on the eastern side of the plot and he saw 78 persons were sitting in the plot and one person, whose name he came to know later on as Subhash was giving instructions to the other persons that Ram Gopal, Ram Ganesh, Kalia would put the stones on the highway and Arvind would overpower the driver of the vehicle and Pratap and Chiranji would overpower the conductor of the vehicle and Jansi and he (Subhash) would take care of the other person who would try to save driver and conductor and they would commit the robbery in the vehicle and take the articles of the vehicles in the godown. After hearing the aforesaid conversation, SI Jagbir Singh challenged the assembled persons who tried to run away but at the same time Inspector Jitender and his party members also challenged the accused persons from the western side of the plot on which those persons fired three rounds towards the police party and the police officials also fired in the air one round and thereafter the raiding party had apprehended five persons while three of them ran away from the spot and could not be apprehended.
State Vs. Pratap etc., FIR No. 118/2005, PS Alipur Page 4 of 31
(3) After interrogation the apprehended persons disclosed their names as Subhash, Arvind, Jansi, Chiranji and Pratap. During the formal search of the accused persons, Subhash was found in possession of desi katta with two live cartridges; accused Arvind Rana and Jansi were found in possession of one buttondar knife each. The recovered desi katta and the knives were sealed, seized and taken into possession by the police. The accused persons were arrested and after completing the investigations, the charge sheet was filed in the court.
CHARGE:
(4) Charges under Section 399/402/307186/353/34 Indian Penal Code were settled against all the accused persons namely Pratap, Jansi, Arvind Rana, Subhash and Chiranji (now expired).
Charges under Section 25/27/54/59 Arms Act, were settled against the accused Subhash. Further, charge under Section 25/54/59 Arms Act, were settled against the accused Arvind Rana and Jansi. All the accused persons had pleaded not guilty and claimed trial. EVIDENCE:
(5) In order to discharge the onus upon it, the prosecution has examined as many as twelve witnesses.
State Vs. Pratap etc., FIR No. 118/2005, PS Alipur Page 5 of 31
(6) PW1 HC Vijender Singh has deposed that on 12nd April, 2005, he was working as Duty Officer at Police Station Alipur from 12:00 midnight to 8 AM and at about 2:15 AM, on receipt of rukka from Ct. Puran Singh sent by ASI Jagbir Singh, he recorded the present FIR copy of which is Ex.PW1/A and he also made endorsement upon the rukka Ex.PW1/B and further investigation was marked to SI Dalbir. The witness has not been cross examined on behalf of the accused and the entire testimony has gone uncontroverted.
(7) PW2 HC Jai Bhagwan has deposed that on 1.4.2005 he was posted at Police Station Alipur and on that day he along with ASI Jagbir, SHO Inder Singh, Addl. SHO Jitender Singh, HC Ramesh Kumar, HC Naresh Kumar, HC Ct. Surender, HC Jai Bhagwan, Ct. Puran, Ct. Manoj Kumar, Ct. Balkrishan, Ct. Dilbagh and Ct. Narender, in a Government vehicle and a private vehicle went for raiding as ASI Jagbir was having a secret information.
According to the witness, when they reached at BD Officer, Alipur, the Investigating Officer asked four - five public persons to join the raiding party but none agreed and went away. The witness has further deposed that at about 11:05 PM the entire police party was separated in two parties. According to the witness, the police party comprising of himself, Addl. SHO Jitender, HC Naresh, Ct. Puran, Operator Ct. Rajender and Ct. Narender reached near the Dharam State Vs. Pratap etc., FIR No. 118/2005, PS Alipur Page 6 of 31 Kanta near GTK Road while the other party reached at Mukhmelpur Jindpur Road, near Baapu Dharam Kanta, and parked their vehicles there. The witness has deposed that they went towards the plot at the instance of the secret informer as there was an information that seven to eight persons were present there who were planning to commit dacoity. According to the witness, ASI Jagbir heard the conversation of those persons and thereafter challenged them loudly after which the police party went near the plot and encircled those boys and on seeing the police, those boys started running and also fired on the police party on which police party also fired towards them. The witness has deposed that he apprehended the accused Pratap who was having an iron rod in his hand which was 2.5 feet long and thereafter it was sealed and seized by the IO. The witness has further deposed that Ct. Puran, HC Naresh and HC Surender apprehended one boy each but the witness is unable to tell the names of those boys. According to the witness, thereafter the IO prepared the seizure memos of the weapon recovered from the remaining five accused vide memo Ex.PW2/A. The witness has deposed that thereafter the IO has prepared the rukka and got the case registered through Ct. Puran and further investigation were marked to SI Dalbir Singh who arrested the accused Pratap vied memo Ex.PW2/B. He has identified the accused persons as well as the case property i.e. iron rod Ex.P1, in the court.
State Vs. Pratap etc., FIR No. 118/2005, PS Alipur Page 7 of 31 (8) In his cross examination by the Ld. Defence Counsel, the witness has deposed that they left the police station at about 10:50 PM vide a departure entry made by the IO, which he is unable to tell. According to him he was sitting in the WagonR car along with Addl. SHO, HC Naresh and Ct. Puran Singh while the secret informer was sitting with the other party in another vehicle. He admits that the place of incident is a busy road despite which nobody was called from the nearby Dharamkanta to join the proceedings and has voluntarily added that they asked the public persons from the BD Office, near the Dharamkanta to join the raiding party. According to him the secret informer left the spot after pointing out towards the plot and the accused persons. He has deposed that the plot was having boundary wall of 5.5. feet and since the road was higher than the plot, therefore the plot was visible from the road and the distance from the road and the plot was 150200 yards. According to him, they all were in uniform and possessed the pistols issued from the malkhana as per entries made in the register and that he was having one pistol. He admits that there was dark at the spot and states that first of all ASI Jagbir had entered in to the plot, but he is unable to tell the distance between the two raiding party. The witness admits that none of the police officials received any injury nor any of the accused received injury. He has deposed that the writing work was done by the IO while sitting on the ground at Baapu Dharamkanta as State Vs. Pratap etc., FIR No. 118/2005, PS Alipur Page 8 of 31 there was light. Witness has furhter denied the suggestion that nothing was recovered from the accused persons or that the accused Pratap and Jansi were apprehended vrom Deepali Chowk and falsely implicated in this case. He has further denied the suggestion that all the proceedings were conducted while sitting in the police station or that the accused Arvind Rana was not apprehended on 2.4.2005 or that he was lifted from from his house at Sector 4 Rohini.
(9) PW3 Ct. Prem Chand has been examined by way of affidavit which is Ex.PW3/A. According to him on 20.12.2005 he deposed the case property of this case in CFSL Calcutta vide RC No. 168/05. He has not been cross examined on behalf of the accused and the entire testimony has gone uncontroverted. (10) PW4 Ct. Ram Phal has deposed by way of affidavits Ex.PW4/A. He has deposed that on 22.5.2005 he had taken the sealed pullands containing country made pistol to FSL Hyderabad and states that since there was no facility, the brought the same back and deposited in the malkhana Police Station Alipur. He has not been cross examined on behalf of the accused and the entire testimony has gone uncontroverted.
(11) PW5 Dr. N.P. Waghmare, Asstt. Director, FSL, Rohini, has deposed that on 30.12.05, he was working as Senior Scientific Officer (Ballistics) CFSL, Kolkata and on 22.12.05 one sealed parcel was received in the office containing one improvised Pistol Marked State Vs. Pratap etc., FIR No. 118/2005, PS Alipur Page 9 of 31 as "A" and two 8 mm cartridges Marked as "LR1 and LR2" from the Addl. DCP, NorthWest, Delhi along with specimen seal for examination. According to him, the aforesaid exhibits were examined by him and on examination he found the exhibit A was a firearm and exhibit LR1 and LR2 were successfully test fired through the Ex "A" and was in a normal working condition. He has proved his detailed report ExPW5/A running into two pages bearing his signatures at point "A".
(12) In his cross examination by Ld. Defence Counsels, the witness has admitted that the parcel were not received by him directly on the official of the Delhi Police and has voluntarily added that the same were received in the office by the official of CFSL, Kolkata. He has denied that the aforesaid parcels were not duly sealed at that time.
(13) PW6 SI Anil Kumar has deposed that on 17.03.06, Sh. Sagar Preet was working as Addl. DCP, NorthWest Delhi and on that day after perusal of the record and after being satisfied, he accorded Sanction under Section 39 Arms Act to prosecute the accused Subhash Garg S/o Munna Mal u/s 25 Arms Act. The said sanction is Ex.PW6/A bearing the signatures of Sh. Sagar Preet at Point "A" which the witness has identified as he is well conversant with the handwriting of Sh. Sagar Preet, the then Addl. DCP, North West, Delhi, having seen him writing and signing in the due course State Vs. Pratap etc., FIR No. 118/2005, PS Alipur Page 10 of 31 of official duty.
(14) In his cross examination by Ld. Defence Counsels, the witness has denied the suggestion that he had not seen Sh. Sagar Preet while writing and signing in due course of his official duty though he admits that Sh. Sagar Preet had not signed the sanction Ex.PW6/A in his presence and the file was not put up before him in his presence in this case.
(15) PW7 Anil Yadav, UDC, Home Department, Government of NCT of Delhi Sectt., New Delhi., has brought the Notification bearing No. F.13/451/79Home (G) dated 29.10.1980, issued by the then Deputy Secretary (Home) (G) Delhi Administration, Delhi, the photocopy of the same is Ex.PW7/A (Original notification seen and returned). He has not been cross examined on behalf of the accused and the entire testimony has gone uncontroverted.
(16) PW8 SI Jagbir Singh, PW9 HC Surender, PW10 Inspector Inder Singh, PW11 HC Ramesh and PW12 HC Naresh are the members of the raiding party. In their examination in chief they have corroborated each other in toto. According to these witnesses, on 01.04.2005 one secret informer informed PW8 SI Jagbir Singh at about 10.35 PM that 78 miscreants were sitting in the plot of Sardar Mahender Singh near Mukhmelpur Chowk, GTK Road, Delhi, were in possession of illegal arms who were going to commit dacoity on the highway and they could be apprehended if State Vs. Pratap etc., FIR No. 118/2005, PS Alipur Page 11 of 31 immediately raid would be conducted. According to these witnesses, PW8 SI Jagbir Singh passed on this secret information to SHO Inspector Inder Singh who formed a raiding party consisting of himself, SI Jagbir Singh, HC Naresh, HC Ramesh, HC Jai Bhagwan, HC Surender, Ct. Pooran, Ct. Bal Kishan, Ct. Dilbagh and Ct. Narender and after making departure DD and after taking official arms from the Malkhana, they reached at the BDO Block, Alipur by two four wheeler vehicles. These witness have further deposed that on the way, SI Jagbir Singh and Inspector Inder Singh asked 45 public persons to join the raiding party but none agreed and left the place without informing their names and address on one pretext or others. According to them, Inspector Inder Singh directed SI Jagbir Singh to hear the conversation of the assembled persons and also that if the secret information is correct then challenge them and thereafter Inspector Jitender would challenge the assemble persons from the other side. These witness have further deposed that Inspector Inder Singh divided the raiding party into two parts and the team comprising of SI Jagbir Singh, Inspector Inder Singh, HC Surender, Ct. Bal Kishan, Ct. Manoj, Ct. Rajender (operator) and driver HC Dharam Pal were in police Gypsy and they parked the vehicle at Bapu Dharam Kanta and took position on the eastern side of the plot of Sardar Mahender Singh. According to them, the other party was headed by Inspector Jitender with remaining police officials and they State Vs. Pratap etc., FIR No. 118/2005, PS Alipur Page 12 of 31 took their positions on the west side of the above said plot of Sardar Mahender Singh. According to SI Jagbir Singh (PW8), he took position near the boundary wall of the plot of Sardar Mahender Singh and concealed himself behind an electricity pole on the eastern side of the plot and he saw 78 persons were sitting in the plot and one person, whose name he came to know later on as Subhash, giving instructions to the other persons that Ram Gopal, Ram Ganesh, Kalia would put the stones on the highway and Arvind would overpower the driver of the vehicle and Pratap and Chiranji would overpower the conductor of the vehicle and Jansi and he (Subhash) would take care of the other person who would try to save driver and conductor and they would commit the robbery in the vehicle and took the articles of the vehicles in the godown and they were planning to commit dacoity. According to PW8 SI Jagbir Singh, he thereafter challenged the assembled persons on which they tried to run away from there but at the same time Inspector Jitender and his party members also challenged the accused persons from the western side of the plot on which the assembled persons fired three rounds towards the police party. According to SI Jagbir Singh, he also fired in the air one round while HC Surender, HC Jai Bhagwan and HC Naresh also fired one round each in the air and thereafter they apprehended five persons in the plot and three persons ran away from the plot and they could not be apprehended and the apprehended State Vs. Pratap etc., FIR No. 118/2005, PS Alipur Page 13 of 31 persons disclosed their names as Subhash, Arvind, Jansi, Chiranji and Pratap.
(17) According to these witnesses, the accused Subhash was apprehended by HC Ramesh and one loaded katta and one more live cartridge was recovered from the possession of accused Subhash and PW8 SI Jagbir Singh prepared the sketch of katta and both live cartridges vide Ex.PW8/A after which the same was sealed, seized and taken into possession. Accused Arvind was apprehended by HC Naresh and one buttondar knife was recovered from the possession of accused Arvind whose sketch was prepared by SI Jagbir Singh vide Ex.PW8/B who also seized the same. According to these witnesses, the accused Jansi was apprehended by HC Surender and on buttondar knife was recovered from his possession whose sketch Ex.PW8/C was prepared and it was taken into possession. The witnesses have further deposed that the accused Chranji was apprehended by Ct. Pooran and one iron rod was recovered from his possession which was sealed, seized and taken into possession. According to these witnesses, the accused Pratap was apprehended by HC Jai Bhagwan and one iron rod was recovered from his possession which was taken into possession after sealing the same. According to PW8 SI Jagbir Singh, he seized the above said five pullandas vide seizure memo Ex.PW2/A. He has mentioned the measurement of the iron rods in the seizure memos Ex.PW2/A. He State Vs. Pratap etc., FIR No. 118/2005, PS Alipur Page 14 of 31 also filled up the FSL form and handed over the seal to HC Jai Bhagwan after use after which he prepared a rukka Ex.PW8/D and got the FIR registered through Ct. Pooran at about 2.00AM (night) on 02.04.2005 and Ct. Pooran came at the spot with SI Dalbir Singh at about 3.00AM being the IO of the case. According to the PW8 SI Jagbir Singh, he handed over all the seized articles, prepared documents and above said accused persons to SI Dalbir Singh and told all the facts to him and has shown the place of incident to SI Dalbir Singh and he prepared the site plan Ex.PW8/E and thereafter left the spot. According to PW9 HC Surender he apprehended the accused Jansi whom he has correctly identified in the court. He has deposed that SI Dalbir interrogated the accused Jansi and recorded his disclosure statement which is Ex.PW9/A after which the accused Jansi was arrested vide memo Ex.PW9/B. According to PW10 Inspector Inder Singh the raiding party was constituted under his supervision and he divided the raiding party into two parts and on his direction ASI Jagbir Singh heard the conversation of the accused persons after which they were challenged and apprehended. Insp. Inder Singh has further deposed that he had recorded the DD No.20E Ex.PW10/A about the secret information and about their departure. He has also deposed that during investigation SI Dalbir recorded disclosure statement of accused Arvind vide Ex.PW10/B, of Subhash State Vs. Pratap etc., FIR No. 118/2005, PS Alipur Page 15 of 31 vide Ex.PW10/C, of Pratap Ex.PW10/D of Jansi vide Ex.PW10/E and Chiranji vide Ex.PW10/F. He has further deposed that during investigation complaint U/s 195 Cr. P. C was obtained from Sh. T R Mudgal, ACP, Narela Zone which is Ex.PW10/G. According to HC Ramesh Kumar (PW11) he had apprehended the accused Subhash and one loaded katta and one more live cartridge was recovered from the possession of accused Subhash who was arrested by SI Dalbir Singh vide arrest memo Ex.PW11/A. According to HC Naresh Kumar (PW12) the accused persons fired three rounds towards the police party on which he along with ASI Jagbir also fired in the air one round. According to him, HC Surender, HC Jai Bhagwan also fired one round each in the air. He has deposed that the accused Arvind was apprehended by him and one buttondar knife was recovered from the possession of accused Arvind whose sketch was prepared by SI Jagbir Singh vide Ex.PW8/B. He has further deposed that SI Dalbir arrested the accused Arvind vide arrest memo Ex.PW12/A. These witnesses have identified the accused persons Pratap, Jansi, Subhash and Arvind in the court and also the case property i.e. iron rod Ex.P1, iron rod Ex.P2, one katta and one live and one used cartridges Ex.P3 and Ex.P4, buttondar knife Ex.P5 and buttondar knife Ex.P6. (Court observation: knife Ex.P5 & P6 are in totally rusted condition and cannot be opened despite efforts). State Vs. Pratap etc., FIR No. 118/2005, PS Alipur Page 16 of 31 (18) In his crossexamination by Ld. Defence Counsel, the witness PW8 SI Jagbir Singh has deposed that the secret informer did not give the secret information in writing to him. According to him, he did not serve any notice to the public persons who refused to join the raiding party. He has deposed that there was no chowkidar at BDO Office and has voluntarily added that they did not visit the BDO Office. According to him, Inspector Jitender was driving the Wagon R but he does not remember the registration number of that Wagon R car. He deposed that there was a less traffic on the road at that time and they tried to stop the vehicles but nobody stopped. Witness has further deposed that the boundary wall of the plot was about 34 feet height and the accused persons were sitting at a distance of 45 feet from the boundary wall in the plot and the area of the said plot is about 1000 Sq. yards. According to the witness, the plot was surrounded by boundary wall and there was one gate on the boundary wall and they jumped the boundary wall and thereafter entered in the the plot and the gate was locked. According to him he prepared the documents at Bapu Dharam Kaanta after apprehending the accused persons at about 11.15 PM and took about two hours for preparation of the documents and completed the written work upto 2.00 AM. According to the witness, the police officials chased the other three accused who ran away from the spot but they could not be apprehended due to darkness. The witness admits that they did not State Vs. Pratap etc., FIR No. 118/2005, PS Alipur Page 17 of 31 receive any injury due to firing by the accused persons and also admits that he did not seize any empty cartridge from the spot and he left the spot alone at about 3.15 AM. The witness has admitted that all members of the police party were carrying fire arms. According to him he was not carrying his mobile phone and he is unable to tell about the other persons. He has deposed that the police party was not carrying any instrument of recording and has denied the suggestion that he had prepared all the documents while sitting in the police station or that obtained the signatures of accused persons at the police station. He has further denied that nothing was recovered from the accused persons or that above said knives, rods and katta cartridges were implanted upon the accused persons. (19) In his crossexamination by Ld. Defence Counsel, the witness PW9 HC Surender has denied the suggestion that they had gone to spot in two gypsies and has voluntarily added that one was gypsy, one was a private Wagon R and admits that he had initially stated two gypsies because he had forgotten about the same. He admits that the road adjoining the BDO office is a motorable road round the clock. He further admits that the police party was duly armed and he was carrying my mobile phone but he is unable to tell about the other persons and has voluntarily added that they must be having their mobiles. According to him, at the time of the incident the mobile set, he was having did not have facility of recording or of State Vs. Pratap etc., FIR No. 118/2005, PS Alipur Page 18 of 31 taking photographs and states that the police party was not carrying any instrument of recording. The witness has deposed that the boundary wall of the plot is 34 feet high and that accused were sitting at a distance of about 1012 feet from the wall and states that the plot in question is about 100150 sq. yard. The witness has admitted that the plot is surrounded by a boundary wall with one gate on the boundary wall and further states that they jumped over the boundary wall to enter the plot. The witness has admits that there was no light inside the plot and has voluntarily added that there were sufficient light coming from the Dharamkanta situated near the plot. He further admits that nobody was injured in the firing by the accused and that the buttondar knife Ex.P5 is not in a working condition and even on the time of the incident it was in the same position. (Court observation : the buttondar knife cannot be opened). The witness has denied the suggestion that the knives similar to Ex.P5 are easily available in the market or that there was no incident and all the documentations was done while sitting in the police station and he had signed the same on the instructions of the senior police officials.
(20) In his crossexamination the witness PW10 Inspector Inder Singh has denied the suggestion that they recorded the DD No. 20A falsely. According to him there was no electricity on the adjoining plots of the place of incident but there was a street light State Vs. Pratap etc., FIR No. 118/2005, PS Alipur Page 19 of 31 and admits that there was no electricity at the place of incident. Witness has deposed that they jumped over the boundary wall of about 3 ½ feet of the plot and entered in the plot as there was no gate on the plot towards their side and he does not know whether there was any gate on the plot to other side. Witness has admitted that no person was injured due to the said firing and that no empty cartridge was recovered from the spot in his presence. According to the witness, later on SI Dalbir informed him that no empty cartridge was recovered and states that he does not know where SI Dalbir and ASI Jagbir prepared the documents. Witness has denied that he had not visited the spot therefore no document bears his signature. He admits that traffic was going on near the place of incident being a high way (G T Karnal Road). He has denied that he did not join the investigation or that nothing transpired in his presence or that the accused persons have been lifted from their respective houses or that they have been falsely implicated in this case. He has further denied that nothing was recovered from the accused persons or that above said articles have been falsely planted upon the accused persons. (21) In his crossexamination by Ld. Defence Counsel, the witness PW11 HC Ramesh Kumar has deposed that the Wagon R car was driven by Inspector Jitender Singh but he does not know about the ownership of that Wagon R nor he is aware whether it was hired or not or its registration number. According to the witness, State Vs. Pratap etc., FIR No. 118/2005, PS Alipur Page 20 of 31 ASI Jagbir Singh did not serve any notice to the public persons who refused to join the investigations. He has deposed that no person was present at Bapu Dharam Kanta and that there was no electricity in the plot from where accused persons were apprehended. According to the witness there was a boundary wall of 34 feet of height on the plot and there was no electricity on the adjoining plots of the place of incident. He has admitted that they did not receive any injury due to firing and no empty cartridge was recovered from the spot in his presence. He has denied that he was not present at the spot or that no incident had taken place at the spot. According to the witness, he put his signatures on the documents at about 56 AM at the spot at Bapu Dharam Kaanta and states that they reached at the police station at about 6.30 AM and ASI Jagbir left the spot at about 3.15AM. He has denied that he had put his signatures on the documents at the police station at the instance of the IO or that nothing was recovered in his presence or that the accused persons were lifted from their respective houses or that they have been falsely implicated in this case. (22) In his cross examination by Ld. Defence Counsel, the witness PW12 HC Naresh Kumar has deposed that Inspector Inder Singh briefed them (members of raiding party) about the secret information at about 10.30 PM. According to the witness, the secret informer was with them when they departed from the police station and he was sitting in the police Gypsey but he is not able to tell when State Vs. Pratap etc., FIR No. 118/2005, PS Alipur Page 21 of 31 the secret informer left the spot. According to him, no other public person was found at the place of incident except the accused persons. He has deposed that there was no residential houses near the place of incident and no traffic on the approach road near the place of incident plot and therefore no vehicle was stopped by them from the main road for joining the investigation. He has further deposed that the place of incident is at a distance of 5060 meters from the main road. According to the witness all the member of raiding party were having official arms when thy left police station. The witness has deposed that ASI Jagbir was not visible to them when he was hearing the conversation of the accused persons and they heard him (ASI Jagbir) when he challenged the accused persons and thereafter they proceeded towards the accused persons. According to the witness, the plot in question is of about 1000 Sq. yards area and it was surrounded by a boundary wall and states that there was no construction in the plot and there was no chowkidar in the plot. The witness has deposed that no empty cartridge was recovered from the spot and has denied that there was no fire caused by the accused persons therefore no empty cartridge was recovered from the spot. The witness has further deposed that he did not hand over the empty cartridge of his service pistol to the IO and has voluntarily added that he deposited the same with MHC (M). According to the witness, the knife was measured by ASI Jagbir Singh with the help of an Inch State Vs. Pratap etc., FIR No. 118/2005, PS Alipur Page 22 of 31 tape of plastic and further stated that ASI Jagbir was having cloth with him for sealing the knife. Witness has denied the suggestion that similar types of knives as recovered from accused Arvind, are easily available in the market or that the knife has planted upon the accused Arvind at the police station. The witness has deposed that they returned to the police station at about 6.30 AM by Gypsey and Wagon R car. The witness has further deposed that Inspector Inder Singh and ASI Jagbir did not return with them and have already left the spot whereas Inspector Inder Singh left the spot with his Gypsey and sent the Gypsey for them later on. He has further denied the suggestion that the accused persons were lifted from their respective houses or that they have been falsely implicated in this case. Statement of Accused & Defence Evidence:
(23) After completing the prosecution evidence, statement of accused were recorded under Section 313 Code of Criminal Procedure in which all the incriminating evidence / material was put to them which they have denied.
(24) The accused Pratap has stated that he is innocent and has nothing to do with the alleged incident. According to him, he has been falsely implicated by the police officials after lifting from Deepali Chowk and obtained his signatures on some blank papers. (25) According to the accused Subhash he is innocent and has State Vs. Pratap etc., FIR No. 118/2005, PS Alipur Page 23 of 31 been falsely implicated. He has stated that nothing was recovered from his possession and the katta and the cartridges are planted upon him by the police officials. According to him, he was lifted by the police from his house and falsely implicated in this case. He has further stated that he did not make any disclosure statement and the police obtained his signatures on some blank papers forcibly. (26) The accused Arvind Rana has stated that he is innocent and has nothing to do with the alleged offence and has been falsely implicated by the police officials after lifting from his house at Sector 4 Rohini. According to him, nothing was recovered from his possession.
(27) The accused Jansi has stated that he is innocent and has nothing to do with the alleged offence and has been falsely implicated by the police officials after lifting from Deepali Chowk, Rohini and that nothing was recovered from his possession.
FINDINGS:
(28) I have heard the oral arguments advanced before me and perused the written synopsis of arguments filed on behalf of accused.
I have also gone through the evidence on record and considered the testimonies of various prosecution witnesses examined before the court. The prosecution in order to discharge the onus, has examined as many as twelve witnesses, all of whom are official officials. State Vs. Pratap etc., FIR No. 118/2005, PS Alipur Page 24 of 31 (29) The case of the prosecution is that on 01.04.2005 at about 10.35 PM a secret informer informed SI Jagbir Singh (PW8) that 78 miscreants were sitting in the plot of Sardar Mahender Singh near Mukhmelpur Chowk, GTK Road, Delhi, who were having illegal arms and were making preparation to commit dacoity upon the ongoing tempos and trucks on the highway and they could be apprehended if immediately raid would be conducted. SI Jagbir Singh (PW8) passed on this secret information to SHO Inspector Inder Singh (PW10) who formed a raiding party comprising of himself, SI Jagbir Singh (PW8), HC Ramesh (PW11), HC Naresh (PW12), HC Surender (PW9), HC Jai Bhagwan, Ct. Pooran, Ct. Bal Kishan, Ct. Dilbagh and Ct. Narender and after taking official arms from the Malkhana, left the police station in two four wheeler vehicles and reached at the BDO Block, Alipur. On the way, SI Jagbir Singh and Inspector Inder Singh asked 45 public persons to join the raiding party but none agreed and left the place without giving their names and address. Thereafter, Inspector Inder Singh directed SI Jagbir Singh to hear the conversation of the assembled persons and if the secret information is correct then challenge them. Inspector Inder Singh (PW10) divided the raiding party into two parts and they all took positions one on the eastern side and the other on the west side of the plot of Sardar Mahender Singh. As per instructions, SI Jagbir Singh (PW8) took his position near the State Vs. Pratap etc., FIR No. 118/2005, PS Alipur Page 25 of 31 boundary wall of the plot of Sardar Mahender Singh and after concealing himself behind an electricity pole on the eastern side of the plot, he saw that 78 persons were sitting in the plot and one of them, whose name he came to know later on as Subhash, was giving instructions to the other persons that Ram Gopal, Ram Ganesh, Kalia would put the stones on the highway and Arvind would overpower the driver of the vehicle and Pratap and Chiranji would overpower the conductor of the vehicle and Jansi and he (Subhash) would take care of the other person who would try to save driver and conductor and they would commit the robbery in the vehicle and took the articles of the vehicles in the godown. After hearing the aforesaid conversation, SI Jagbir Singh challenged the assembled persons who tried to run away but at the same time Inspector Jitender and his party members also challenged the accused persons from the western side of the plot on which those persons fired three rounds towards the police party and the police officials also fired in the air one round and thereafter the raiding party had apprehended five persons while three of them ran away from the spot and could not be apprehended. (30) Case of the prosecution is that after the interrogation of the persons apprehended by the raiding party, they disclosed their names as Subhash, Arvind, Jansi, Chiranji and Pratap. Further, during the formal search of those persons, Subhash was found in possession of desi katta with two live cartridges; Arvind Rana and State Vs. Pratap etc., FIR No. 118/2005, PS Alipur Page 26 of 31 Jansi were found in possession of one buttondar knife each and the said desi katta and the knives were sealed, seized and taken into possession by the police after which the accused persons were arrested in the present case.
(31) The prosecution has examined as many as twelve witnesses. PW1 HC Vijender Singh is the Duty Officer who has proved the registration of FIR copy of which is Ex.PW1/A; PW3 Ct. Prem Chand and PW4 Ct. Ram Phal are formal witnesses; PW5 Dr. N. P. Wagmare is the witness from FSL, Rohini who has proved his report Ex.PW5/A; PW6 SI Anil Kumar has proved the Sanction under Section 39 Arms Act Ex.PW6/A accorded by Addl. DCP; PW7 Anil Yadav has proved the Notification issued by Delhi Administration vide Ex.PW7/A, whereas PW2 HC Jai Bhagwan, PW8 SI Jagbir Singh, PW9 HC Surender, PW10 Inspector Inder Singh, PW11 HC Ramesh and PW12 HC Naresh, were the members of the raiding party. According to the prosecution story, accused Subhas was apprehended by HC Ramesh (PW11) and one loaded katta along with one live cartridge was recovered from his possession and when the katta was checked, one live cartridges in the same; accused Arvind was apprehended by HC Naresh (PW12) and one bottondar knife was recovered from his possession; accused Jansi was apprehended by HC Surender (PW9) and one buttondar knife was recovered from his possession; accused Chiranji was State Vs. Pratap etc., FIR No. 118/2005, PS Alipur Page 27 of 31 apprehended by Ct. Pooran and one iron rod was recovered from his possession and the accused Pratap was apprehended by HC Jai Bhagwan and one iron rod was recovered from his possession. All the accused have been identified the members of the police party in the court.
(32) No public witness was asked to participate in the proceedings either at the spot or during the seizure of the arms. In the absence of any independent testimony, it is difficult to believe the testimonies of the police officials. I am not oblivious of the fact that merely because public witnesses have not been joined, would not be a ground to throw away the case of the prosecution. Indeed, the police witnesses are competent witnesses but in a case where public witnesses are not joined, the evidence of the police witnesses have to be scrutinized with great care and caution and it must be seen if it has a ring to truth around it and inspires confidence. Once the public persons were available in the vicinity, they would certainly have heard the noise and gathered around the place and could have easily been joined in the investigation which surprisingly did not happen. Therefore, in view of the above, the uncorroborated testimonies of these police officials have to be read with caution. Further, the testimonies of all the police witnesses show that the police party had prior information regarding the presence of the accused at the spot. All the members of the police party must have been carrying their State Vs. Pratap etc., FIR No. 118/2005, PS Alipur Page 28 of 31 mobile phones and there were sufficient opportunities for them to have arranged some sophisticated gazettes like recorders for recording any conversation of those boys at the spot, which again surprisingly did not happen in the present case.
(33) It is evident from the site plan Ex.PW8/E that the place of incident is a plot surrounded by populated area and despite the alleged firing incident took place at the plot, none has gathered. It is strange that the place of incident being near the Dharamkanta and a busy area, no public person noticed the firing, gathered at the spot even after the incident, which itself creates a doubt on the prosecution story.
(34) Further, the testimonies of all the police witnesses are full of inconsistencies and contradictions with regard to incident of firing, the source of light, the area of the alleged plot, hight of the boundary walls of said plot, manner of apprehension of the accused and do not inspire confidence in the case put forwarded by the prosecution. The version given by this witness do not find any corroboration from any independent source and also does not appears to be plausible. How convenient it is for these police witnesses to depose in chorus without any regards for established norms of Criminal Law.
(35) In this scenario, I hold that the prosecution has miserably failed to bring home any cogent, reliable or trustworthy evidence that State Vs. Pratap etc., FIR No. 118/2005, PS Alipur Page 29 of 31 on 01.04.2005 at about 11:15 PM the accused Pratap, Chiranji (now expired), Jansi, Arvind Rana and Subhash, along with their associates namely Ramji Lal, Ram Ganesh and Kalia (not arrested), in furtherance of their common intention and duly armed with deadly weapons i.e. desi katta and buttondar knives, had assembled at Sardar Mahender Singh Ka Plot, near Mukhmelpur Chowk, GTK Road, Delhi, and made preparation for committing dacoity on the highway upon the ongoing tempos and trucks and caused obstruction and used criminal force upon the members of the police party, who were on official duty, by firing towards them with intention to cause death of the members of police party. Non joining of public witnesses during the proceedings coupled with, tamed and twisted evidence by the police witnesses leaves a grave doubt in the mind of this court about the allegations of the accused having fired at the police party from the desi katta allegedly recovered from the possession of accused Subhash. The manner in which the police witnesses have deposed before this court on the aspect of the incident of firing, does not inspire confidence of this court. I, therefore, hold that the prosecution has miserably failed to prove their case beyond reasonable doubt that the accused Pratap, Chiranji (now expired), Jansi, Arvind Rana and Subhash, along with their associates namely Ramji Lal, Ram Ganesh and Kalia (not arrested), had accused any obstruction to the police party by using criminal force upon the members of the police party in State Vs. Pratap etc., FIR No. 118/2005, PS Alipur Page 30 of 31 execution of their official duty by firing towards them. (36) In view of the above, I hereby acquit the accused Pratap, Jansi, Subhash and Arvind Rana of the charges under Section 399/402/186/307/353 read with Section 34 Indian Penal Code. I further acquit the accused Subhash of the charges under Section 25/27/54/59 Arms Act. The accused Arvind Rana and Jansi are also acquitted of the charges under Section 25/54/59 Arms Act. (37) The sureties of accused persons be discharged, per rules.
(38) File be consigned to Record Room.
Announced in the open court (Dr. KAMINI LAU)
Dated: 04.05.2012 ASJ (NW)II: ROHINI
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