Delhi District Court
State vs . 1) Neeraj Sehrawat @ Neeraj Bawania on 31 August, 2016
IN THE COURT OF SH. REETESH SINGH, ASJ-02/FTC
NEW DELHI DISTRICT PATIALA HOUSE COURTS, DELHI
Case ID No. 02403R01052522015
Sessions Case No. 21 of 2015
State vs. 1) Neeraj Sehrawat @ Neeraj Bawania
S/o. Sh. Prem Singh Sehrawat
R/o. H.No.848 Panna, Mojjan Bawana,
Delhi.
2) Mohd. Rashid Khan @ Gaddu,
S/o Mohd. Mohiyuddin Khan,
R/o B-48, Part 1, Vishnu Garden, Delhi
FIR No. 30 of 2015
PS: Special Cell
U/s: 186/353/307/412/471/34 IPC
25/27/54/69 Arms Act
Date of institution of the case : 07.08.2015
Date when the case reserved for judgment : 23.08.2016
Date of announcement of judgment : 31.08.2016
JUDGMENT
1. Neeraj Sehrawat @ Neeraj Bawania and Mohd. Rashid Khan are facing trial in this Court for jointly the offences punishable under sections 186, 353 and 307, all read with section 34 of the Indian Penal Code (IPC). Neeraj Sehrawat @ Neeraj Bawania is separately charged for the offences under section 25 of the Arms Act and section 471 of the IPC while Rashid Khan @ Guddu is individually charged for the offence under section 25 of the Arms Act.
2. The case set up by the prosecution as explained in the State vs. Neeraj Sehrawat @ Neeraj Bawania & Anr.
FIR No. 30 of 2015, PS: Special Cell 1/38 Police Report under Section 173 (2) of the Code of Criminal Procedure (Cr.P.C.) is that as per information received in the Special Cell of Delhi Police, Neeraj Sehrawat @ Neeraj Bawania had helped a notorious criminal namely Amit @ Bhura to escape from the custody of Uttarakhand Police while Amit @ Bhura was being taken to Baghpat Court in police custody for his appearance. In the said incident, two AK- 47 rifles and one SLR of Uttarakhand Police had been looted. Information had been received about Neeraj Bawania that he had made a base in Kolkatta and used to frequently move to his hide outs in Mumbai and Punjab. Technical and manual surveillance were mounted to track down Neeraj Bawania.
3. It is further alleged that on 06.04.2015 SI Vikram Dahiya received secret information through an informer that Neeraj Bawania was going to Kamruddin Nagar Delhi at midnight and would proceed to Village Bawana Delhi to meet his family in a white coloured Hyundai Verna car bearing registration no. 4386. SI Vikram Dahiya passed on the information to Inspector Umesh Barthwal who shared it with senior police officials. Direction was given to Inspector Umesh Barthwal to act on the said information. conduct immediate raid. Inspector Umesh Barthwal constituted a police team comprising of Inspector Kailash Singh Bist, SI Ravinder Kumar Tyagi, SI Shivraj Rawat, SI Rahul Kumar, SI Yogesh Kumar, SI Vikram Dahiya, ASI Mukesh Singh, HC Balwant Singh, HC Rajiv Kumar, HC Sanjiv Dhama, HC Sandeep, HC Samay Singh, HC Gurmeet Singh, HC Rajbir Singh, HC Khem Singh, Ct. Hemant, Ct. Amit Gulia, Ct. Ankit Deshwal, Ct. Narinder, Ct. Umardeen, Ct. Birender Negi, Ct. Mahesh and Ct. Pawan. Inspector Umesh Barthwal briefed the police team of the information received.
State vs. Neeraj Sehrawat @ Neeraj Bawania & Anr.
FIR No. 30 of 2015, PS: Special Cell 2/38
4. The said police team then left the office of the Special Cell at about 11.15 pm in two official Maruti Gypsy vehicles, four private cars and two motorcycles. The police team had taken with them the IO kit, arms and ammunitions, bullet proof jackets and official seal. They reached Rohtak Road, Kamruddin Nagar, Delhi at about 11.50 pm where the secret informer met SI Vikram Dahiya. The information was verified and then the informer he left. SI Vikram Dahiya tried to associate 3-4 passersby to join proceedings of the police team but all of them declined without disclosing their names and addresses. The members of the police team were briefed and deployed at strategic points. Two separate teams of HC Sandeep and Ct. Narinder and HC Gurmeet and Ct. Pawan were directed to look for the Hyundai Verna car on their motorcycles. Another team of SI Shiv Raj, ASI Mukesh and Ct. Birender were placed at the corner of Ranikheda-Karala Road and the rest of the team members of the police team were stationed near the road going towards Rani Kheda-Karala on Rohtak Road.
5. It is further in the police report that at about 3.30 am early morning of 07.04.2015 the team of HC Sandeep and Ct. Narinder spotted one white coloured Hyundai Verna car bearing registration number no. DL8CAF4386 which had passed them and moving towards the other police team. They gave information of the same to the other members of the police team and all were alerted. The road was blocked by parking both the police gypsy vehicles in a manner which would require a coming vehicle to slow down in order to pass. After few minutes the said car was spotted towards Ranikheda-Karala Road and the the team of SI Shiv Raj Singh, who were in police uniform, signalled State vs. Neeraj Sehrawat @ Neeraj Bawania & Anr.
FIR No. 30 of 2015, PS: Special Cell 3/38 the said car to stop. The car instead of stopping increased its speed. All the members of the police team gave chase to the said vehicle which was then overtaken and forced to stop near the rail under bridge at Ranikheda-Karala Road.
6. It is further alleged that Neeraj Bawania got out of the said vehicle from the driver's seat carrying a firearm in his hand and Rashid Khan got down from the front passenger seat carrying a firearm in his hand. Both the accused persons started firing upon the police team which returned the fire in self defence with the intention to apprehend them. Both the accused persons were called upon to surrender by the police team but they did not do so. Inspector Umesh Barthwal, SI Rahul and Ct. Mahesh after brief scuffle were able to overpower Neeraj Bawania and snatch his weapon which upon examination was found to be a .38 bore revolver of make Smith and Wesson. Rashid Khan was also apprehended by SI Vikram and SI Yogesh and his weapon a .32 bore revolver was recovered.
7. Inspector Umesh Barthwal handed over the custody of Neeraj Bawania to SI Vikram along with his weapon. SI Vikram checked the said weapon which was found loaded with three live cartridges and three empty cartridges of .38 bore. SI Vikram prepared sketch of the revolver and cartridges after taking their measurements. The revolver and cartridges were then put in a cloth pullanda marked as S1 and was sealed with the seal of "SPL CELL NDR 10" and seized.
8. SI Vikram checked the .32 bore revolver recovered from Rashid Khan. It was found loaded with four live cartridges and one State vs. Neeraj Sehrawat @ Neeraj Bawania & Anr.
FIR No. 30 of 2015, PS: Special Cell 4/38 empty cartridge of .32 bore. SI Vikram prepared sketch of the same, put it in a cloth pullanda Mark S2 and seized the same. Requisite FSL form was filled and seal after use was handed over to SI Yogesh.
9. Rukka of the proceedings was prepared by SI Vikram which he handed to Ct. Mahesh for registration of FIR. Further investigation of the matter was assigned to SI Pramod who along with ASI Surinder Kumar arrived at the spot at about 07.15 am. SI Vikram handed over the custody of the accused persons, sealed pullandas and documents to SI Pramod. SI Pramod prepared the site plan of the spot at the instance of SI Vikram and arrested both the accused persons and seized the Hyundai Verna car. After getting the FIR number from the duty officer SI Pramod endorsed the FIR number on all memos. SI Pramod interrogated Neeraj Bawania and Rashid Khan and arrested them and conducted their personal searches. He also recorded the disclosure statements of Neeraj Bawania and Rashid Khan. The accused persons with the case property were then brought back to the office of the Special Cell.
10. It is further alleged that on 11.4.2015 SI Pramod recorded the disclosure statement of Rashid Khan. In the personal search of Neeraj Bawania two mobile phones, a debit card, a driving licence in the name of Vikas were recovered which were taken into possession.
11. As per the police report, on 09.04.2015 investigation of the case was assigned to SI Sohan Lal SI Pramod Kumar was not available. Neeraj Bawania was in police custody and upon interrogation he gave a supplementary disclosure statement as per which his associates State vs. Neeraj Sehrawat @ Neeraj Bawania & Anr.
FIR No. 30 of 2015, PS: Special Cell 5/38 managed to help Amit Bhura to escape from the custody of Uttarakhand Police and in the incident two AK-47 rifles and one SLR of Uttarakhand Police had been looted. He disclosed that his associates had brought the said weapons to him and that he retained one AK-47 rifle and the SLR which he had buried under the earth in a vacant plot which he could get recovered. By then Uttarakhand police officials arrived in the office of the Special Cell upon gaining news of the apprehension of Neeraj Bawania and joined the investigation.
12. In pursuance of the supplementary disclosure statement Neeraj Bawania led the police team to a vacant plot of land in B Block, Village Bawana, Delhi. Public persons were tried to be associated with the proceedings of the police team but all declined. Neeraj Bawania pointed out the plot of land and place which was dug up at his instance. One AK-47 rifle with magazine without bullets and one SLR without magazine were found buried under the earth. Uttarakhand Police team members present at the place of recovery identified the weapons as belonging to them from the serial numbers engraved on them. The weapons were put in separate cloth pullandas and sealed with the seal of 'SPL CELL NDR 37' and seized. The seal after use was handed over to ASI Mukesh. Pointing out memo of the vacant plot at the instance of Neeraj Bawania was also prepared at the spot along with a site plan of the place of recovery.
13. Neeraj Bawania with the case property were brought back to the office of the Special Cell. SI Sohan Lal handed over the case file to SI Pramod with the case property. The seized exhibits were sent to CFSL for examination and its report was collected. The driving licence State vs. Neeraj Sehrawat @ Neeraj Bawania & Anr.
FIR No. 30 of 2015, PS: Special Cell 6/38 recovered from Neeraj Bawania was found to be fake upon verification. Call Detail Records of mobile no.7044912003 with CAF were obtained from the service provider. Statements of witnesses were recorded and sanction for prosecution of the accused persons under section 39 of the Arms Act as well as complaint under section 195 of the Cr. P.C were made and collected by the IO. After conclusion of the investigation of the case, the investigating officer filed the charge sheet.
14. By order dated 07.08.2015 charges were framed against the accused persons in the manner as recorded above to which they pleaded not guilty and claimed trial.
15. In all prosecution has examined fifteen witnesses to bring home the charges against the accused persons. The brief description of the witnesses as established as under:-
Srl. No. NAME RELEVANCY
PW1 Insp.Umesh Barthwal He was heading the police which
apprehended the accused persons on
06 & 07.04.2015 and effected
recoveries from them.
PW2 SI Rahul Kumar He was part of the police team on 06 &
07.04.2015 and effected recoveries
from them.
PW3 HC T.P. Belliappa He is the duty officer who registered
the FIR Ex. PW 3/A on the rukka
brought by Ct. Mahesh.
PW4 ASI Surender Kumar He had accompanied the IO SI
Pramod Kumar to whom the
investigation of the case was assigned
on 07.04.2015 after the apprehension
State vs. Neeraj Sehrawat @ Neeraj Bawania & Anr.
FIR No. 30 of 2015, PS: Special Cell 7/38
of the accused persons by the first
police team.
PW5 SI Sohan Lal He was assigned the investigation of
this case on 09.04.2015 when
recoveries of one AK-47 rifle and one
SLR at the instance of Neeraj
Sehrawat @ Neeraj Bawania were
effected from Bawana.
PW6 Ajay Kumar He produced the records of the mobile
Nodal Officer, no. 7044912003.
Bharti Airtel Ltd.
PW7 ASI Mukesh Singh He was part of the investigation on
09.04.2015.
PW8 SI Narendra Singh He was from Uttarakhand Police, who
Bist was part of the investigation on
Incharge SOG, 09.04.2015.
Haridwar,
Uttarakhand
PW9 SI Deepak Kumar He produced the logbook of
government vehicle used by the police
in the raid on 06/07.04.2015.
PW10 Meena Kumari She produced the records of driving
Clerk, Office of license no. HR7920200201818.
Licensing Authority,
Kharkhoda, District
Sonipat, Haryana
PW11 SI Yogesh Kumar He was part of the police team on
06.04.2015 & 07.04.2015 and effected
recoveries from them.
PW12 Ct. Mahesh Bansod He was part of the police team on
06.04.2015 & 07.04.2015 and effected
recoveries from them.
PW13 SI Vikram Dahiya He was part of the police team on
06.04.2015 & 07.04.2015 and effected
recoveries from them.
PW14 HC Sanjiv He is the MHCM, PS Special Cell, who
produced register no. 19 and 21.
State vs. Neeraj Sehrawat @ Neeraj Bawania & Anr.
FIR No. 30 of 2015, PS: Special Cell 8/38
PW15 SI Pramod The investigation of the case was
handed over to him after apprehension
of the accused persons on 07.04.2015
by the first police team.
16. Statements of the accused persons under Section 313 of the Cr.P.C. were recorded. The accused denied the incriminating evidence put to them. They did not wish to lead evidence in defence.
17. Arguments were addressed by Sh. M. S. Khan, counsel on behalf of the accused persons and by Sh. Irfan Ahmed, Ld. Addl. PP on behalf of the State.
18. On behalf of the State it was submitted that the prosecution witnesses were consistent in their testimonies with respect to the case set up. There were no major contradictions in their versions. He further submitted merely because public witnesses are not associated to the apprehension of the accused persons and recoveries effected from them, the testimonies of the police witnesses cannot be discarded. The only aspect which the Court is to keep in mind is put the testimonies of the police witnesses to greater scrutiny. He thus submitted that there was sufficient evidence on the record warranting conviction of the accused persons.
19. On behalf of the accused persons it was submitted that there is not a single public witness associated with the proceedings of the police team at any point of time. None of the recoveries have been witnessed by any private witness. All the witnesses in this case are police witnesses and their version cannot be relied upon. It was State vs. Neeraj Sehrawat @ Neeraj Bawania & Anr.
FIR No. 30 of 2015, PS: Special Cell 9/38 submitted that the entire story about the encounter with the accused persons and recoveries made from them in the early morning of 07.04.2015 were all planted. Even the alleged fake driving license was planted on Neeraj Bawania. It was further submitted that there were several contradictions in the version of the police witnesses which have cropped up in their cross-examination. He submitted that even though electronic surveillance have been mounted to apprehend the accused persons, there is absolutely no such record produced by the prosecution. He further submitted that District Crime Team was not called to inspect the scene of the crime. The same was neither photographed nor videographed. No fingerprints were stated to be lifted from the vehicle used by the accused or even from the firearms alleged to be used by them. No chemical hand wash of the accused persons was taken to trace any gun powder residue. In these circumstances, he submitted that the evidence of the police witness cannot be relied upon.
20. As regards recovery of AK-47 and SLR rifles on 09.04.2015 is concerned, it was submitted by Ld. Counsel Sh. M.S. Khan that even in the said recovery no public witnesses were associated. The owner of the plot of land from which the weapons were recovered has not been examined. The plot of land from where the recovery was made was a vacant plot and accessible to the public at large. Any person could easily have put the said weapons in the said plot. He further submitted that there was discrepancy in the serial number of the rifle mentioned in the FIR No.1072 of 2014, PS Baghpat when compared with serial number noted in the seizure memo regarding the said weapons. He submitted that there thus was a doubt whether these were the same weapons in respect of which the FIR No. State vs. Neeraj Sehrawat @ Neeraj Bawania & Anr.
FIR No. 30 of 2015, PS: Special Cell 10/38 1072 of 2014 had been registered. He submitted that there is no explanation of digit '60' appearing in the FIR No. 1072 of 2014 in the serial number of these weapons when compared to the contents of the seizure memo. He submitted that both the weapons were not sent for forensic examination to any laboratory and there was nothing on record to indicate whether these weapons were in fact AK-47 and SLR or not and whether they were in working condition or not. He lastly submitted that FIR No. 1072 of 14 PS Baghpat was not proved on record as the scribe of the FIR / Duty Officer of the said police station were not examined as witnessed in this case. He submitted in theses facts and circumstances both the accused persons deserved to be acquitted. Sh. MS Khan relied on the following case law in his support:-
(i) Trimbak vs. State of Madhya Pradesh, reported in 1953 Law Suit (SC) 26; and
(ii) Bakshish Singh vs. State of Punjab, reported in AIR 1971 SC 2016.
21. I have heard counsel for the parties and have perused the record of this case.
22. The primary submission which has been made on behalf of the accused persons is that there were no public witness associated with the apprehension of the accused and recoveries effected from them. In this regard in the case of Gian Chand v. State of Haryana reported in (2013) 14 SCC 420 the Hon'ble Supreme Court was pleased to refer to the law on the said question and hold as under:-
"The wise principle of presumption, which is also recognised by the legislature, is that judicial and official acts are regularly performed. Hence, when a police officer gives evidence in court that a certain article was recovered State vs. Neeraj Sehrawat @ Neeraj Bawania & Anr.
FIR No. 30 of 2015, PS: Special Cell 11/38 by him on the strength of the statement made by the accused it is open to the court to believe that version to be correct if it is not otherwise shown to be unreliable. The burden is on the accused, through cross-examination of witnesses or through other materials, to show that the evidence of the police officer is unreliable. If the court has any good reason to suspect the truthfulness of such records of the police the court could certainly take into account the fact that no other independent person was present at the time of recovery. But it is not a legally approvable procedure to presume that police action is unreliable to start with, nor to jettison such action merely for the reason that police did not collect signatures of independent persons in the documents made contemporaneous with such actions."
23. It was further observed by the Hon'ble Supreme Court in the case of Gian Chand v. State of Haryana that:-
"37. Section 114 of the 1872 Act gives rise to the presumption that every official act done by the police was regularly performed and such presumption requires rebuttal. The legal maxim omnia praesumuntur rite it dowee probetur in contrarium solemniter esse acta i.e. all the acts are presumed to have been done rightly and regularly, applies. When acts are of official nature and went through the process of scrutiny by official persons, a presumption arises that the said acts have regularly been performed."
24. In the case of Gian Chand v. State of Haryana (supra) the Hon'ble Supreme Court was pleased to hold that not joining a public witness by the police would not be fatal to the case set up regarding recoveries from the accused. It was held that the presumption prescribed under section 114 of the Evidence Act regarding official acts having been performed regularly attaches to the acts of the police. Such a presumption was rebuttable and the onus to rebut the same would be on the accused.
State vs. Neeraj Sehrawat @ Neeraj Bawania & Anr.
FIR No. 30 of 2015, PS: Special Cell 12/38
25. I shall now deal with the evidence lead in this case. Keeping in view the ratio laid down by the Hon'ble Supreme Court in the case of Gian Chand v. State of Haryana (supra).
APPREHENSION OF ACCUSED NEERAJ @ BAWANIA AND RASHID KHAN IN THE INTERVENING NIGHT OF 06/07.04.2015 AND RECOVERIES EFFECTED FROM THEM
26. The witnesses examined in respect of the proceedings of the police team on 07.04.2015 are Inspector Umesh Barthwal (PW1), SI Rahul Kumar (PW 2), SI Yogesh Kumar (PW11), Ct. Mahesh Bansod (PW12) and SI Vikram Dahiya (PW13). All these witnesses have deposed similarly in their examination in chief and as per the version set up by the prosecution in the police report.
27. In cross-examination PW1 Insp. Umesh Barthwal stated that he could not specifically state the period since when prior to April 2015 their team was working Neeraj Bawania. He was aware of the case registered at Baghpat with regard to escape of accused Amit Bhura from the custody of Uttarakhand Police and he has read the said FIR and admitted that there was no mention of Neeraj Bawania in the same. He had no conversation with the IO of the said case and could not remember the source and the time when he received copy of the said FIR. He stated that a police team had been sent to several states to develop information regarding Neeraj Bawania but he himself had not gone to Mumbai, Kolkatta and Punjab and could not specifically state the time and date when the information regarding movements of Neeraj State vs. Neeraj Sehrawat @ Neeraj Bawania & Anr.
FIR No. 30 of 2015, PS: Special Cell 13/38 Bawania at the said places was received. He had not recorded the said information in DD register before the arrest of Neeraj Bawania. He stated that the information was based on source inputs received by him and his team members. On a specific question put to him by counsel for the accused, PW1 stated that he used the words 'technical surveillance' in terms of analysis of call / cellular datas. On another specific question, PW1 answered that voluminous data pertaining to cellular operators were analysed during the operation. He admitted that he could not state any number / cellular data the details of which were analyzed by him. He admitted that the data analyzed by him was not part of the charge sheet. In answer to another specific question, he stated that cellular data was obtained through electronic mails from the respective service providers through the office of Addl. DCP and that the data received was for operational purpose but could not state whether the same was preserved or not. He did not state to the IO that a few months before April 2015, their team was working upon desperate interstate notorious rewarded criminal Neeraj Sehrawat @ Neeraj Bawania who had helped notorious criminal Amit @ Bhura to escape from the custody of Uttarakhand Police in which two AK-47 rifles and one SLR of Uttarakhand Police had been looted. He also did not state to the IO that during follow up operations associates of the gang of Neeraj Bawania were arrested by the Special Cell or that during this period information was also received that Neeraj Bawania had made a base in Kolkatta and used to frequently move to his hideouts in Mumbai and Punjab as well as of technical and manual surveillance being mounted to track Neeraj Bawania.
28. In further cross-examination PW1 Insp. Umesh Barthwal State vs. Neeraj Sehrawat @ Neeraj Bawania & Anr.
FIR No. 30 of 2015, PS: Special Cell 14/38 stated that SI Vikram shared the secret information telephonically with him on 06.04.2015 at around 10.40pm. The secret information was only confined to the visit of Neeraj Bawania to his house in Bawana to meet his family members. The place of apprehension of the accused persons was about 1½ -2 kms from Kamruddin Nagar and the residence of Neeraj Bawania was about 8-9 kms from there. He stated that he knew the address of Neeraj Bawania prior to his apprehension but he was not familiar with the other roads leading to the house of accused except the main road. No team was deployed near or around the house of the accused. He admitted that the secret information does not reveal the place from where Neeraj Bawania was coming to Kamruddin Nagar and reason for his visit to Kamruddin Nagar. He was carrying his mobile and he had received and made calls during this period but could not disclose his mobile number due to operational reasons.
29. PW1 further stated in cross-examination that a total 11 rounds were fired and he had fired two rounds from his service revolver. The firing lasted for about 10 minutes. He could not state what was the minimum and maximum distance between him and accused persons during firing. He stated that the site plan Ex.PW1/DX was prepared at the spot. In answer to a specific question, he stated that the accused persons got out of their vehicle from point A shown in the site plan and ran towards Rani Khera under bridge and the vehicle of the police team was at point B after over taking vehicle of the accused. The accused were firing towards them while they were at point B and had come out of their vehicle. He i.e. PW1 fired in the direction where the accused persons were running. He i.e. PW1 had already stepped down from his vehicle when the accused started firing towards the police team. He State vs. Neeraj Sehrawat @ Neeraj Bawania & Anr.
FIR No. 30 of 2015, PS: Special Cell 15/38 was standing near the police vehicle and the other police vehicle was at point C shown in the site plan. He stated that both the accused were running towards under the bridge from the same carriage way of the road. The police team chased the accused persons for a distance of about 15-20 feet. He stated that his police gypsy had blocked the vehicle of the accused persons and the distance separating both the vehicles after stopping would be about 3 feet. He stated that his police gypsy was ahead of the vehicle of the accused and other police gypsy had stopped on the right side of the vehicle of the accused and the distance between the other police gypsy and vehicle of accused was about 3-5 feet. He stated that both the accused persons got out from their vehicle from their respective sides and ran towards the under bridge passing his police gypsy. He stated that he did not deposit his official pistol to the IO for examination by the CFSL. Voluntarily he submitted that it was official weapon. He stated that he was aware about the hand wash test to detect the gun powder traces on the hand of the person firing a fire arm. He stated that no efforts were made to take the fingerprints from the vehicle as well as weapon of the accused. Rest of the cross-examination of PW1 is in the form of suggestions which he denied.
30. In cross-examination PW2 SI Rahul Kumar stated that Insp. Umesh Barthwal called him on 06.04.2015 at about 10.45-10.50 pm and the briefing lasted for about 10 minutes in which secret information was discussed with the team members. He stated that during briefing the exact place in Kamruddin Nagar where accused Neeraj was expected to come was not disclosed. He was also not disclosed as to from where Neeraj Bawania was coming. It was also not State vs. Neeraj Sehrawat @ Neeraj Bawania & Anr.
FIR No. 30 of 2015, PS: Special Cell 16/38 discussed to deploy police personnel near or around the house of accused Neeraj. He stated that the four private vehicles were belonging to SI Ravinder Kumar Tyagi, SI Vikram Dahiya, SI Yogesh Kumar, SI Shiv Raj Rawat. They left the office of Special Cell at around 11.15 pm and reached back the office of Special Cell at around 12.30 pm on 07.04.2015. He was carrying his mobile phone with him and he had received and made calls from his mobile number. He could not disclose his mobile number due to operational reasons. After the Verna vehicle was spotted, they chased it about for 150 meters. He was sitting in the government vehicle along with Insp. Umesh Barthwal, Ct. Mahesh Bansod and Ct. Amit Gulia and in another government vehicle SI Vikram Dahiya, SI Yogesh Kumar, HC Balwant Singh and HC Rajiv Kumar were sitting. He stated that when they received the information about the vehicle, they were already ahead of Verna vehicle and then chased it for 150 meters and made it stop. After they stopped Verna vehicle, the distance between government vehicle and Verna car was about 1-2 feet and the another government vehicle also stopped at the same time on the right side of Verna vehicle. He stated that Neeraj Bawania got down from the Verna vehicle and after moving 2-3 steps ahead, he turned back and fired on the police team. Neeraj Bawania firstly ran towards the back side where another gypsy and other police party had come and thereafter, he ran towards their side. He stated that when he i.e. PW2 fired, he (PW2) had already got down from his police vehicle. Neeraj Bawania fired from a distance of about 7-8 feet and he could not state as to which of the police official was targeted and he i.e. PW2 also returned fire (two rounds). He fired at Neeraj Bawania from a distance of about 8-10 feet and Neeraj Bawania fired thrice on the police team while running. He stated that they were firing while chasing Neeraj State vs. Neeraj Sehrawat @ Neeraj Bawania & Anr.
FIR No. 30 of 2015, PS: Special Cell 17/38 Bawania on feet. He stated that he fired in the direction as shown at point D in the site plan. He stated that as he and his team were concentrating on Neeraj Bawania, he could not see the events of operation qua Rashid. Rest of the cross-examination of PW1 is in the form of suggestions which he denied.
31. In cross-examination PW11 SI Yogesh Kumar stated that at about 10.40 pm on 06.04.2015, he was informed about the secret information by Insp. Umesh Barthwal and the secret information was also discussed with him by Insp. Umesh Barthwal. He stated that no exact time of arrival of Neeraj Bawania was informed. He stated that he was also not informed during the discussion as to from where Neeraj would come at Kamruddin Nagar. He stated that the address particulars of Neeraj Bawania were already in his knowledge. The house of the accused situated at around 8 km from Kamruddin Nagar. The briefing after receiving secret information lasted for about 10 minutes with the members of the raiding party. It was not discussed during the briefing to deploy members of raiding party near the house of Neeraj Bawania. They had no specific information as to why Neeraj Bawania would visit Kamruddin Nagar. They left the office of Special Cell at around 11.15 pm on 06.04.2015 and came back on the next day at 12.30 pm. SI Vikram asked public persons after reaching at Kamruddin Nagar to join the investigation but they refused. SI Vikram did not take any legal action against those persons. Insp. Umesh Barthwal was informed by HC Sandeep and Ct. Narender about spotting the Verna vehicle on his mobile phone. He stated that he was carrying his mobile phone but he could disclose the number due to operational reasons. After spotting the Verna vehicle, they chased it for 150 meters and two police vehicles State vs. Neeraj Sehrawat @ Neeraj Bawania & Anr.
FIR No. 30 of 2015, PS: Special Cell 18/38 surrounded the Verna vehicle, one police vehicle was positioned on the right side of the Verna vehicle and the another police vehicle was in front of the Verna vehicle when they stopped it. He stated that he was driving the vehicle which stopped on the right side of Verna vehicle and the distance between the vehicle driven by him and the Verna car was around 3-4 feet. He stated that the other police vehicle which was in front of Verna vehicle was at a distance of 3-4 feet from the Verna vehicle. After stopping, the accused immediately alighted from the vehicle and started running while taking out weapons in their hands. He stated that Neeraj Bawania alighted from the right side and Rashid alighted from the left side of the vehicle. All the members of the police teams who were in the police gypsy alighted immediately and rushed towards the accused persons and surrounded them at a distance of around 5-6 feet from them. He stated that in all four rounds were fired from the side of accused and seven rounds were fired from the police party. There was a distance of around 5-6 feet between Neeraj Bawania and police when Neeraj Bawania started firing and they retaliated. He stated that SI Vikram was closest to Rashid at a distance of around 4-5 feet when accused started firing and police party retaliated. He deposed that no bullet from either side hit any vehicle. SI Pramod reached at the spot at 7.15 am on 07.04.2015 on being informed by someone from the spot through mobile phone. He stated that the proceedings at the spot lasted till 10.30-11 am. He stated that there was vehicular movement on the road where they conducting the proceedings and there was also passersby. He did not know whether IO asked any person to join the investigation who were passing by. He did not know if IO made efforts to preserve fingerprints. He state that no crime team was informed and called at the spot and he did not know if IO made efforts to lift State vs. Neeraj Sehrawat @ Neeraj Bawania & Anr.
FIR No. 30 of 2015, PS: Special Cell 19/38 fingerprints either from the car or from the weapons. He denied all the suggestions put to him.
32. PW12 Ct. Mahesh Bansod in cross examination stated that he did not go back to the spot from the police station after getting the rukka and he reached the police station with the rukka at about 7.15am. SI Pramod had come to the police station at about 11am and he handed over the rukka and copy of FIR to him in the police station. He was in the vehicle of Insp. Umesh Barthwal and the police gypsy of Insp. Barthwal had stopped behind the Verna vehicle. He was sitting in the back seat of the police gypsy and was not carrying any weapon. SI Rahul was driving the police gypsy and Insp. Umesh Barthwal was sitting on the front passenger seat and both got down of the police gypsy together and started chasing the accused persons. He stated that he i.e. PW12 also got down of the vehicle and ran behind Insp. Umesh Barthwal and that the accused were chased for about 10 feet. He then stated that the accused persons were sitting in the Verna vehicle. He then could not remember whether they had got down from the Verna vehicle and that he could not see from where the accused fired because he was sitting in the police gypsy on the back side. He stated that he was sitting in the police gypsy when the firing took place.
33. In cross-examination PW13 SI Vikram Dahiya stated that he was part of the team led by Insp. Umesh Barthwal which was working since December 2014 upon Neeraj Sehrawat. He stated that during the working they came to know that Neeraj Sehrawat was resident of Bawana but he was not aware about the home and other particulars of Neeraj Bawania in village Bawana. He stated that in the State vs. Neeraj Sehrawat @ Neeraj Bawania & Anr.
FIR No. 30 of 2015, PS: Special Cell 20/38 month of December 2014 or before no case was registered against accused Neeraj Sehrawat in PS Special Cell. He stated there was no written instructions from the senior officers to work upon the movements of Neeraj Bawania. Voluntarily he submitted that they usually work upon the movements of the criminals who carry reward on their heads or are wanted. The exact location of the base of Neeraj Sehrawat in Kolkatta could not be ascertained. He did not visit Kolkatta but HC Balwant and other police officers went there in the month of February / March 2015 but he did not remember their names. He stated that he was not aware about the briefing made by HC Balwant or others after their visit to Kolkatta to Insp. Umesh Barthwal. He had no knowledge if during the working of the team the hideouts of the accused in Mumbai and Punjab were ascertained or not. He stated that there were about 4-5 mobile numbers, the CDR of which was analyzed by them but he could not state the number as he did not remember now. In answer to a specific question put to him, he stated that by technical surveillance, he meant the analyzing of CDR data and location of the mobile phones. He stated that the data was being analyzed since December 2014. In answers to specific questions put to him, he could not remember the particulars of any number which was under surveillance; that the cellular data was obtained in this case through electronic mails from the respective service provider through ACP and he could not produce but voluntarily submitted that it was not a relied upon document.
34. In further cross-examination PW13 stated that in the secret information it was informed that Neeraj Sehrawat could go to his house in Bawana but the purpose of visit was not stated. No police officer was deployed near or around the house of Neeraj Sehrawat. There were State vs. Neeraj Sehrawat @ Neeraj Bawania & Anr.
FIR No. 30 of 2015, PS: Special Cell 21/38 several routes leading to the house of Neeraj Sehrawat but explained that information was that Neeraj Bawania would be going to his village via Kamruddin Nagar. SI Pramod Kumar had reached the spot at 7.15 am and prepared the site plan at his i.e. PW12 instance. They chased Verna vehicle for about 200 meters after it was spotted by them. He stated that he was sitting in the front passenger seat of the official which stopped on the right side at a distance of about 4-5 feet of Verna vehicle. He stated that the accused fired after getting out from their vehicle. He stated that he i.e. PW13 was the closest. He stated that the Hyundai Verna was being driven by Neeraj Sehrawat and Rashid was on the front passenger seat. He stated that Neeraj Sehrawat fired first and he fired three shots. He i.e. PW13 fired two shots together. He stated that Neeraj Sehrawat was at a distance of about 10 feet when the firing took place. Neeraj Sehrawat was trying to run in the direction in which the cars were going but had stopped. He stated that the gypsy which stopped in front of Verna had four police officials, out of which two were armed. Neeraj Sehrawat had gone ahead of the police gypsy which had stopped in front of the Verna and the police party who got down from the front gypsy also fired on Neeraj Sehrawat multiple shots. He was also closest to Rashid and that Rashid fired one shot from a distance of about 10 feet towards police team. He stated that there were around 11 shots fired from both the sides but bullets did not hit any police official or vehicles. The height of the wall where the action took splace was about 10-15 feet but he did not check if the bullet hit the wall. He stated that as he was first IO so he did not call crime team and did not try to conduct any hand wash test. There was vehicular movement on the road but no public witness was joined. Rest of the cross-examination is in the form of suggestions which he denied.
State vs. Neeraj Sehrawat @ Neeraj Bawania & Anr.
FIR No. 30 of 2015, PS: Special Cell 22/38
35. The manner in which the accused persons were apprehended and recoveries effected from them are detailed in the forgoing paras of this judgment. PW1, PW2, PW11, PW12 and PW13 were examined by the prosecution in respect of the same. All of them deposed similarly in their examination in chief and in the manner consistent with the case set by the prosecution.
36. From the cross examination of all these witnesses, it is apparent that no public witnesses were tried to be associated with the proceedings of the police team. The District Mobile Crime Team was not called. No attempt was made to lift fingerprints from the weapons seized from the accused persons or even from the Hyundai Verna vehicle alleged to have been used by them. Chemical hand wash to trace gunpowder residue from the hands of the accused was not done even though the police officials were aware about the relevance of the same.
37. PW1 and PW13 in their examination in chief had stated that the technical and manual surveillance was mounted to track the Neeraj Bawania. In cross examination PW1 and PW13 have stated that by way of technical surveillance they meant call details and cellular data but both of them could not state any number of any phone whose date had been analyzed. The data so analyzed was not even placed along with the charge-sheet. There is therefore no record of any technical surveillance done by the investigating officers placed before this Court.
38. As per the said witnesses a total of eleven rounds were fired between the police team and the accused persons. PW1 however State vs. Neeraj Sehrawat @ Neeraj Bawania & Anr.
FIR No. 30 of 2015, PS: Special Cell 23/38 could not state the maximum and minimum distance between him and the accused persons when the firing took place. PW2 in cross examination has stated that Neeraj Sehrawat had fired from a distance of 7-8 feet and he i.e. PW2 fired two rounds from a distance of 8-10 feet. PW11 and PW13 have stated that the firing took place when the accused were at a distance of 3-5 feet from them. From their statements the exchange of fire took place at a very close range but neither any of the accused nor any member of the police team had suffered any injury. No bullet hit any of the police vehicles. PW13 in cross examination has stated that there was a wall of 15 feet from where the firing took place but he did not check whether any bullet hit the wall.
39. The statement of PW12 is rather interesting. In his examination in chief, he has deposed as per version of the prosecution including that firing took place between the accused persons and the members of the police team. He deposed that he was also chasing the accused persons along with Insp. Umesh Barthwal and SI Rahul Kumar and he with their help apprehended Neeraj Sehrawat and snatched .38 bore revolver from him. In cross examination PW12 initially stated that he also got down from the vehicle and ran behind Insp. Umesh Barthwal and the accused were chased for about 10 feet but then he deposed that the accused were sitting in the Hyundai Verna. He then stated that he could not remember whether they had got down from Hyundai Verna vehicle and did not see from where the accused fired because he remained sitting in the police gypsy on its rear seat. In other words, PW12 did not even get down from the police vehicle to chase the accused persons. From the deposition of PW12 an inference arises that either he was not present at the place of apprehension of the accused State vs. Neeraj Sehrawat @ Neeraj Bawania & Anr.
FIR No. 30 of 2015, PS: Special Cell 24/38 persons or that the accused were not apprehended in the manner as claimed by the prosecution. It has also come on record in the statements of these witnesses that the accused Neeraj Sehrawat was on his way to his house in village Bawana and the said address was known to the police officers but no police personnel were deployed there to take care off the eventuality of the accused not using the route in respect of which secret information had been received.
40. As observed in the case of Gian Chand v. State of Haryana (supra), the Hon'ble Supreme Court was pleased to hold that presumption in favour of testimonies of the police witnesses could be rebutted by way of effective cross examination. In the present case, the cross examination of PW1, PW2, PW11, PW12 and PW13 reveal that their statements are not reliable. Contradictions have emerged in their statements which stand further amplified in the absence of public witnesses. In these circumstances the presumption regarding correctness of their acts stands rebutted.
41. Therefore, for the reasons recorded above, both the accused persons are acquitted of the charges which arise out of the investigation conducted in the night of 06/07.04.2015 under Sections 186, 353 and 307, all read with section 34 of the IPC, under section 25 of the Arms Act and Section 471 of the IPC.
RECOVERY OF AK-47 RIFLE AND SLR AT THE INSTANCE OF ACCUSED NEERAJ BAWANIA ON 09.04.2015.
42. In this regard witnesses examined are SI Sohan Lal (PW5), ASI Mukesh Singh (PW7) and SI Narender Singh Bist, State vs. Neeraj Sehrawat @ Neeraj Bawania & Anr.
FIR No. 30 of 2015, PS: Special Cell 25/38 Uttarakhand Police (PW8). They have deposed as per the version of the prosecution regarding the recoveries made.
43. In cross-examination PW5 SI Sohan Lal has stated that the investigation along with case diary was handed over to him at about 4 pm on 09.04.2015. He stated that at about 5.40 pm they left the office of Special Cell and made a entry of his departure in DD register. He stated that the same was not taken by him on the said date and he was not aware if the same was collected by the IO. He stated that the investigation was handed back to SI Pramod at midnight between 09/10.04.2015. He stated that he along with SI Yogesh Kumar, ASI Surinder, HC Sanjiv, HC Bacho, HC Rajbir, Ct. Kushal Pal along with accused Neeraj Sehrawat left the office of Special Cell for the purpose of raid in two vehicles, one was the government vehicle and other belonged to SI Yogesh Kumar. He stated that he found the officials of Uttarakhand Police present in the office of Special Cell during the time when the investigation was handed over to him. He did not know who had intimated the Uttarakhand Police and as to when they came at the office of Special Cell. He had recorded the statements ASI Mukesh and official of SOG Uttarakhand Mr. Bist but did not record the statement of other team members of the raiding party. They returned to the office of the Special Cell at about 12 O'clock in the night. They travelled about 40 km one side. Neeraj Sehrawat was interrogated for about 40-50 minutes. He did not know why the officials of SOG Uttarakhand police accompanied him during the raid as he had no conversation with them earlier. It took about two hours in reaching at the spot. There were three vehicles and there was no hurry on their part. They made efforts to join public witnesses at Dhaula Kuan, Bawana and at the place of recovery State vs. Neeraj Sehrawat @ Neeraj Bawania & Anr.
FIR No. 30 of 2015, PS: Special Cell 26/38 but he had not noted down the names of the persons who refused to join the raiding party and no notice was served on them. The place where they reached was a residential area and they also found some labour residing there. The recovery was effected from a vacant place. The proceedings lasted for about 1½ hours. During this period public persons had gathered there but no public persons joined the investigation. On local inquiry it came to their notice that the plot belonged to Prem Singh, father of Neeraj Bawania. They did not record the statement of the persons from whom information regarding the ownership of the plot was ascertained. His statement was not recorded by SI Pramod. No CFSL form was filled in respect of the recovery and it was also not in his knowledge if the weapons were sent to the CFSL for examination. Seizure memo was penned by SI Yogesh while the pointing out memo and the site plan were prepared by him i.e. PW5. They deposited the case property in the Malkhana at about 12 o'clock. The seal was not handed over to him by ASI Mukesh. He did not have the complete file during the course of investigation conducted by him. Some papers were in the custody of SI Pramod Kumar and the police officials of SOG Uttarakhand were discharged at about 1 am on 10.04.2015 after recording of their statement. No discussion was held with the Uttarakhand Police regarding identification of the weapon based on the serial number mentioned in the FIR number 575 of 2014 dated 15.12.2014 PS Kotwali Bagpat. He had not written to the authorities for identification of the weapons and he was also not aware if IO SI Pramod had done so. Rest of the cross-examination of PW5 is in the form of suggestions which he denied.
44. In cross-examination PW7 ASI Mukesh Singh stated that State vs. Neeraj Sehrawat @ Neeraj Bawania & Anr.
FIR No. 30 of 2015, PS: Special Cell 27/38 they returned to the office of the Special Cell after 12 midnight. He did not know when the case property was deposited in the Malkhana. He was discharged from the investigation at around 1:30 am. The supplementary disclosure statement of Neeraj Bawania had his i.e. PW7 signature but when confronted he admitted that his signatures were there. He stated that Neeraj Bawania was arrested on 07.04.2015 and he was a member of the raiding party. His statement was recorded under section 161 Cr. P.C only once on 10.04.2015. The seal was handed over in the morning of 10.04.2015 to the IO but no statement in this regard was recorded by the IO. Uttarakhand police officials reached the office of the Special Cell office on 09.04.2015 but he could not remember the time. He met them at the time of constitution of raiding party at 5.40 pm. He remained associated with this case since 06.04.2015. He had no knowledge as to how and by whom the Uttarakhand Police officials were informed about the apprehension of Neeraj Bawania. They reached village Bawana at about 8-8.15 pm and remained there till 10.30 pm. He was not aware if any DD entry regarding their arrival and departure was made. The place in question was situated within Abadi. There were about 12-15 persons in the raiding party in three vehicles. Several persons were watching them and some of them were watching from their houses. He stated that in the car alongwith him, ASI Sohan Lal, SI Yogesh, HC Rajbir, HC Sanjiv and Neeraj Bawania travelled in the government vehicle bearing no. DL1CM0881. They only inquired from the public to join the investigation after reaching at the spot. He stated that there was a gali which was around 10-12 feet wide. The site plan was prepared in his presence and he had witnessed it. They came to know about the ownership of the adjoining houses on inquiry from the persons who had gathered there.
State vs. Neeraj Sehrawat @ Neeraj Bawania & Anr.
FIR No. 30 of 2015, PS: Special Cell 28/38 In his presence the IO had not noted down their names. The place had a boundary but was broken from one side. No building was constructed on the plot and it was accessible to all.
45. PW7 ASI Mukesh Singh in cross-examination further deposed that they did not make any effort to lift fingerprints as the weapons were buried under the mud at a depth of 1½ feet. He could not remember if any inquiry or statement to ascertain the ownership of the plot in question was made. He had gone through the contents of the seizure memos before signing it. The IO had not recorded any statement of the Uttarakhand police official regarding identification of the recovered weapons but their statement was recorded in the office of Special Cell. He stated that he had not seen the FIR no. 1072 of 14 PS Bagpat. He had seen the recovered weapons at the spot. He was not aware about the numbers of the weapons mentioned in the FIR recorded at PS Bagpat but the Uttarakhand police in his presence had identified the recovered weapons. No identification memo was made at the spot to the effect that Uttarakhand police had identified the weapons. He denied all the suggestions to the contrary.
46. In cross-examination PW8 SI Narendra Singh Bist has stated that he had come to Delhi in the evening of 08.04.2015 but his other colleagues came on 09.04.2015. He came back by his private vehicle from Haridwar. Al his other colleagues also came in their private vehicles. They had claimed access money from their department for the travel. They were informed about the apprehension of Neeraj Bawania by the office of Special Cell. They had come for the purpose of investigation of Case Crime no. 1072 of 2014 PS Bagpat. Voluntarily State vs. Neeraj Sehrawat @ Neeraj Bawania & Anr.
FIR No. 30 of 2015, PS: Special Cell 29/38 he explained that after their weapons had been snatched by the accused persons, they were following investigations of the case registered at PS Bagpat and in this regard the Special Cell had informed them that they had apprehended Neeraj Bawania and thus they came in connection with the same. He stated that he had read the contents of Crime no. 1072 of 2014 PS Bagpat, FIR No. 575 of 2014. He admitted the said FIR recorded the serial numbers of the weapons snatched from the Uttarakhand Police. He denied the suggestion that the serial numbers of the weapons mentioned in the FIR did not match with the numbers mentioned in their respective seizure memos. Voluntarily, he explained that the FIR recorded the serial number of the AK-47 as 'AK47BA44665160' and the seizure memo recorded it as 'BA- 44-6651', the last two digits '60' were not recorded in the seizure memo as it was not visible being covered in mud. He further explained that the FIR recorded the serial number of the SLR as 'SLRN630394060' and the seizure memo recorded it as '1005-001551/83 RIFAL 7.62 mm N-3940'. He stated that there were several numbers mentioned on an SLR which were on its butt and on its body. At the time of recovery the SLR was covered in mud and serial no. 1005-001551/83 as well as MMN3940 were visible which were recorded.
47. In further cross-examination PW8 stated that no separate identification memos regarding these weapons were prepared at the spot. He stated that the weapons had been concealed at a depth of about 1½ feet in the ground. He stated that the mud (mitti) was little dry on the surface but slightly moist underneath. The places on the weapons which have the numbers were cleaned to read the serial numbers. An SLR had different numbers at three places, one on the State vs. Neeraj Sehrawat @ Neeraj Bawania & Anr.
FIR No. 30 of 2015, PS: Special Cell 30/38 butt, one on the body and one the magazine. They had noted down the serial numbers of the looted weapons before coming to Delhi and had compared them at the time of recovery. In the present case, the recovered weapons had been issued by the Armoury Incharge, Police Lines, Dehradun. No separate FIR was lodged by the Uttarakhand Police in respect of snatching of weapons. He voluntarily explained that the last two digits i.e. 60 mentioned in the numbers engraved on SLR and AK-47 indicated that the number of cartridges issued against the said weapons were 60. He had no knowledge if the statement of the Armoury Incharge, Police Line Dehradun was recorded by the IO or not. He had no knowledge if any written communication took place between them. They remained at the spot for about 1½ hours. They returned to the office of Special Cell at around 12 O'clock. He could not remember, if the proceedings at the spot were videographed or photographed. The place was open and vacant and accessible to all. The ownership of the plot could not be ascertained. His statement was recorded in the office of Special Cell. He denied all the suggestions put to him.
48. As recorded above, the witnesses in respect of these recoveries are PW5, PW7 and PW8. All three have deposed that they had gone along with other police officials on the basis of a disclosure statement of Neeraj Sehrawat to a vacant plot at B-Block, Village Bawana, New Delhi and at the instance of the said accused earth was dug up leading to recovery of these two weapons. All the three witnesses are consistent with their versions in examination in chief as well as in their cross examination. They have stated that requests had been made to public persons in the village to join the proceedings but none came forward. Attempt was therefore made from the public State vs. Neeraj Sehrawat @ Neeraj Bawania & Anr.
FIR No. 30 of 2015, PS: Special Cell 31/38 persons to join with the investigation. It has been stated that the plot of land from which the weapons were recovered belonged to the father of the accused. It is to be noted that the accused Neeraj Sehrawat is a resident of village Bawana and several cases are registered against him. It is but natural that residents of the said village did not come forward to join as witnesses to the recovery of the weapons at his instance.
49. Ld. Counsel for the accused has stated that the serial number mentioned with respect to the weapon in the FIR No. 1072 of 2014, PS Baghpat did not match with that of mentioned in the seizure memo.
50. Perusal of the copy of the FIR No.1072 of 2014 which is on the judicial record mentions the serial number of AK-47 as 'AK47 BA 44665160' and of SLR as 'SLRN1630394060' while the seizure memo Ex.PW5/B mentions the serial number of AK-47 as 'BA-44-6651' and of SLR as '1005-001551/83 RIFAL 7.62 mm N-3940'.
51. PW8 SI Narendra Singh Bist from Uttarakhand Police had explained in his cross examination in the post lunch session on 30.03.2016 that the last two digits '60' indicate the number of cartridges issued against the said weapons. It may also be mentioned that during pendency of this case, an application was filed by Ct Mahipal Singh, Armourer, 502/PAC, Police Line, Dehradun, Uttarakhand for release of weapons recovered in this case i.e. AK-47 Rifle no. BA 446651 and SLR Rifle No. N 3940 which belong to Uttarakhand Police. The contents of this application along with which the certified copy of Arms Issue State vs. Neeraj Sehrawat @ Neeraj Bawania & Anr.
FIR No. 30 of 2015, PS: Special Cell 32/38 Register has also been filed, clearly reveals that the serial number of AK-47 is mentioned as 'BA-44-6651' and of SLR as 'N3940'. They also record that '60' bullets have been issued against both these weapons. In these circumstances it is absolutely clear that FIR No. 1072 of 2014 mentions '60' after the serial number of the weapon which denotes that 60 bullets / cartridges have been issued against each weapon. The seizure memo of the weapons has recorded the correct serial numbers of the recovered weapons which matched with the serial numbers of the weapons in respect of which FIR No. 1072 of 2014 has been registered. The said submission on behalf of counsel for the accused is therefore rejected.
52. It had been submitted that there was nothing to indicate that the said weapons were not in working condition as they had not been sent for forensic examination. It was also submitted that there was nothing on record to indicate that the said weapons were infact AK-47 and SLR rifles. In this regard it is to be kept in mind that PW5 and PW7 are police officials of the Special Cell of Delhi Police. They are well versed with knowledge of weapons. Further PW8 SI Narender Bhist of Uttarakhand Police himself identified the weapons. No suggestion was given to any of these witnesses that they were not having personal knowledge about the identity of these weapons. Since these weapons belonged to Uttarakhand Police and had been snatched in an incident in which one accused escaped from the custody of Uttarkakhand Police at Baghpat, there was no requirement to send them for forensic examination to find out whether they were in working condition or not. In other words as these weapons are not country made weapons, there was no requirement for their forensic examination.
State vs. Neeraj Sehrawat @ Neeraj Bawania & Anr.
FIR No. 30 of 2015, PS: Special Cell 33/38
53. It had been submitted that FIR No.1072 of 2014 PS Baghpat has not been proved as the scribe of the same had not been summoned. During the course of the trial, no suggestion has been given by the accused persons to any of the witnesses to the effect that no such FIR had been registered. In fact, counsel for the accused had put the contents of the FIR to the witnesses to try to establish that the serial numbers of the weapons mentioned in the said FIR did not match with the seizure memo of the same. There was practically no dispute raise by the accused regarding the said FIR having been registered. Even otherwise it is a statutory document having been registered under the provisions of the Code of Criminal Procedure and in the facts and circumstances of this case no formal proof of the same was required.
54. Submissions had been made by him that mere recovery of stolen property at the instance of the accused Neeraj Sehrawat would not amount to knowledge on the part of the accused that the articles were stolen or that the same were in his possession. Further the recovery was made from an open plot of land which was accessible to all. Reliance was placed on the judgments of the Hon'ble Supreme Court in the cases of Trimbak vs. State of Madhya Pradesh (supra) and Bakshish Singh vs. State of Punjab (supra).
55. In the case of Trimbak vs. State of Madhya Pradesh (supra), the facts were that recovery was made from a field accessible to all which did not belong to the accused but one Namdeo Ananda. In the case of Bakshish Singh vs. State of Punjab (supra), the facts were that the accused had pointed out the place where the dead body of the State vs. Neeraj Sehrawat @ Neeraj Bawania & Anr.
FIR No. 30 of 2015, PS: Special Cell 34/38 deceased had been thrown and it was held that anybody who saw the parts of the dead body can infer that the dead body must have been thrown into the river.
56. In the present case, it has come on record that the plot of land from where the weapons were recovered belonged to the father of the accused. The weapons were not lying in the open but had been buried about 2 feet under the earth and could be recovered only at the instance of the accused. These weapons are that very same weapons which had been looted in the incident out of which FIR No.1072 of 2014 PS Baghpat was registered.
57. The prosecution in this case has been able to prove recovery of these two weapons at the instance of the accused. It is in respect of these two weapons, FIR No. 1072 of 2014 has been registered in PS Baghpat. Section 8 of the Evidence Act relates to conduct of an accused. In the case of Prakash Chand vs. State reported in 1979 (3) SCC 90, the Hon'ble Supreme Court was pleased to hold that the pointing out of the place where stolen articles were found hidden is admissible conduct under Section 8 of the Evidence Act irrespective of whether any statement by the accused contemporaneously with or antecedent to such conduct falls within the purview of Section 27 of the Evidence Act. In the present case, the fact that the accused himself had pointed out the place from where these weapons were stored disclosed his knowledge regarding weapons having been concealed at the said place. In his statement under Section 313 of the Cr.P.C., the accused Neeraj Sehrawat has not explained as to how he gained knowledge of the said fact. He has rather denied State vs. Neeraj Sehrawat @ Neeraj Bawania & Anr.
FIR No. 30 of 2015, PS: Special Cell 35/38 recovery of the said weapons at his instance. The answer given by the accused in his statement under Section 313 of the Cr.P.C. is thus found to be false.
58. Section 313 of the Cr.P.C. pertaining to statement of an accused has been the subject matter of several decisions of the Hon'ble Supreme Court. In the case of Mani Kumar Thapa vs. State of Sikkim (2002) 7 SCC 157, the Hon'ble Supreme Court was pleased to observe that a false answer offered by an accused when his attention is drawn to any inculpating circumstance would render such circumstance as capable of inculpating him and that a false answer can be considered to be a missing link to complete chain of circumstances pointing towards the guilt of the accused. In the case of Ravirala Laxmaiah vs. State of A.P. (2013) 9 SCC 283, the Hon'ble Supreme Court was pleased to reiterate that it is duty of the accused to explain incriminating circumstances proved against him while making his statement under Section 313 of the Cr.P.C. Keeping silent or not furnishing any explanation or furnishing an explanation which is found to be untrue are additional links in the chain of circumstances to sustain the charges against such an accused.
59. In the present case, Neeraj Sehrawat has not explained as to how it was within his knowledge that the weapons had been concealed in the said plot. The same is an additional link in the chain of circumstances which points to the fact that he was in possession of these weapons. Hence the case law relied upon by the counsel for the accused do not come to his aid.
State vs. Neeraj Sehrawat @ Neeraj Bawania & Anr.
FIR No. 30 of 2015, PS: Special Cell 36/38
60. Hence for the reasons recorded above, the prosecution has therefore has been able to prove beyond any reasonable doubt that it was the accused Neeraj Sehrawat who was in possession of these two weapons i.e. AK-47 and SLR rifles in respect of which FIR No. 1072 of 2014 was registered at PS Baghpat and is therefore liable to be convicted for the charge under Section 25 of the Arms Act framed against him in this regard.
CONCLUSION
61. The net result of the above discussion is as under:-
(a) Accused Neeraj Sehrawat @ Neeraj Bawania and Mohd. Rashid Khan are acquitted for the offences punishable under Sections 186, 353 and 307, all read with section 34 of the IPC;
(b) Accused Rashid Khan @ Guddu is acquitted for the offence under section 25 of the Arms Act.
(c) Accused Neeraj Sehrawat @ Neeraj Bawania is acquitted for the offences under section 25 of the Arms Act and Section 471 of the IPC for being in possession of a revolver and three live cartridges;
(d) Accused Neeraj Sehrawat @ Neeraj Bawania is convicted for the offences under Section 25 of the Arms Act for being in possession of AK-47 and SRL rifles.
Announced in the open Court (REETESH SINGH)
on 31st August, 2016 ASJ-02/FTC, PHC/NDD
31.08.2016
State vs. Neeraj Sehrawat @ Neeraj Bawania & Anr.
FIR No. 30 of 2015, PS: Special Cell 37/38
State vs. Neeraj Sehrawat & Anr.
FIR No. 30 of 2015
PS : Special Cell
31.08.2016
Present: Sh. Irfan Ahmad, Ld. Addl. PP for the State.
Accused Neeraj Sehrawat is produced from JC.
Accused Mohd. Rashid Khan is present on bail.
Sh. M.S. Khan, Ld. Counsel for the accused persons.
Vide separate judgment, (a) accused Neeraj Sehrawat and Rashid Khan stand acquitted for the offences punishable under Sections 186, 353 and 307, all read with section 34 of the IPC; (b) Accused Rashid Khan @ Guddu stands acquitted for the offence under section 25 of the Arms Act; (c) accused Neeraj Sehrawat stands acquitted for the offences under section 25 of the Arms Act and Section 471 of the IPC for being in possession of a revolver and three live cartridges and accused Neeraj Sehrawat stands convicted for the offences under section 25 of the Arms Act for being in possession of AK- 47 and SRL rifles.
Accused Rashid Khan furnished bail bonds in compliance of provisions of Section 437A of the Cr.P.C. The same are accepted and shall remain in force for a period of six months from today.
List the matter for arguments on the point of sentence qua accused Neeraj Sehrawat on 08.09.2016.
(Reetesh Singh) ASJ-02/FTC, New Delhi District, Patiala House Courts, New Delhi 31.08.2016 State vs. Neeraj Sehrawat @ Neeraj Bawania & Anr.
FIR No. 30 of 2015, PS: Special Cell 38/38