Delhi District Court
State vs Raju @ Shankar Etc. on 19 July, 2010
IN THE COURT OF SH.SURESH CHAND RAJAN
ADDITIONAL SESSIONS JUDGE, FAST TRACK COURT,
(New Delhi & South East District)
PATIALA HOUSE COURTS, NEW DELHI
1. S.C.NO.155/09
FIR No.19/2007
PS-HN Din
U/s 399/402 IPC & 25 Arms Act.
State
Vs.
1. Raju @ Shankar s/o Mahavir Prasad
2. Rajesh @ Kuldeep s/o Kishore
3. Manoj Kumar @ Matadeen s/o Gobri Bhagat
4. Rajender Kumar s/o Ram Kumar
....Accused
Challan filed on :08.03.07
Received by Fast Track Court on: 14.12.09
Reserved for order on: 16.07.10
Judgment delivered on:19.07.10
JUDGMENT
Accused Raju @ Shanker, Rajesh @ Kuldeep, Manoj Kumar and Rajender Kumar had been sent up by the police of PS HN Din to the court of Ld. MM for the commission of offence punishable u/s 399/402 IPC and 25 Arms Act. This case was triable by the court of session so after committal proceedings it was received by the court of sessions on 20.04.07 and thereafter on transfer by this court on 14.12.09.
2. Brief facts of the prosecution's case are that on 09.01.07 SI State Vs.Raju @ Shankar etc. FIR No.19/07 Page No. 1 of 15 Govind Chauhan received secret information that 4/5 boys who used to commit robbery will assemble in Lala Lajpat Rai Marg, Jungpura Extn and would plan to commit dacoity. This information was conveyed to SHO and on the direction of SHO SI Govind Chauhan organised a raiding team consisting of ASI Lal Singh, HC Narvir, HC Hukam Chand, Ct. Jaswant, Ct. Veerpal, Ct. Sunil and Ct. Anil and they reached at the spot and on the way some public persons were requested to join the investigation but they refused and went away without telling their names and addresses. The members of raiding team were deputed at different directions at the spot. Some boys came to the park at about 8 p.m from different sides and sat in the park. Ct. Veerpal was deputed as shadow witness to hear the conversation of those boys and to give signal after hearing their conversation by waiving his hand. He heard the conversation and after sometime he gave the prefixed signal by waiving his hand on his head and all the accused persons were apprehended from the spot and illegal arms were recovered from them. The illegal arms recovered from the accused persons were seized by the police and thereafter deposited in malkhana. The accused persons were arrested and after completion of the investigation challan u/s 399/402 IPC & 25 Arms Act was filed against the accused persons.
3. All the accused persons were charged u/s 399/402 IPC & accused Raju @ Shankar, Rajesh @ Kuldeep and Rajender Kumar were also charged u/s 25 Arms Act. on 23.07.07 by Sh. VK Bansal, Ld. ASJ to which all the accused persons pleaded not guilty and claimed trial.
4. The prosecution in support of its case in all has examined as many as 12 witnesses. Thereafter the prosecution evidence was closed.
State Vs.Raju @ Shankar etc. FIR No.19/07 Page No. 2 of 15
5. The evidence against the accused persons were put to them in their statements of accused recorded u/s 313 Cr.P.C in which they have pleaded their innocence and stated that they have been falsely implicated in this case. None of the accused had opted to lead the defence evidence.
6. I have heard Ld. APP for the State as well as Ld. counsel for the accused persons and perused the testimonies of the Pws and exhibited documents carefully.
7. In view of the submissions made by the Ld.counsel for the accused persons as well as Ld.APP for the State I have also perused the testimonies of Pws. Pw1 Ct.Sunil Kumar has deposed that on 9.1.07 he was directed to join the raiding team in civil dress. The raiding party left for the spot and on the way some public persons were asked to join in the investigation, but none was ready. He has stated that all the members were deputed in different direction. Ct. Veer Pal was directed to hear the conversation and then give signal by petting his hand on his hand if the said boys were found making plans to commit dacoity. Five boys entered in the park at about 8.30 p.m. After hearing the conversation Ct. Veer Pal gave the signal and four boys were apprehended at the spot and one succeeded to run away from there. He apprehended accused Rajesh @ Kuldeep from whose possession one buttondar knife was recovered. sketch of which is Ex.PW1/A and it was seized vide memo Ex.PW1/B. Accused Rajesh was arrested vide memo Ex.PW1/C and his personal search was conducted vide memo Ex.PW1/D.
8. PW2 Ct. Bhisamber Sharma is the witness who recorded DD State Vs.Raju @ Shankar etc. FIR No.19/07 Page No. 3 of 15 no.12 when the secret information was received in the PS. He has brought copy of DD no.12 which is Ex.PW2/A.
9. PW3 HC Veerpal has deposed that he joined the raiding party on 9.1.07 and reached at Lala Lajpat Rai Park where he ws directed to hearing the conversation and given the signal by waiving his hand on his head.
10. PW4 SI Givind Chauhan is the IO of this case who had received the secret information about gathering of 4/5 boys to plan for committing dacoity in wine shop. He organised the raiding party and deputed Ct. Veer Pal to hear the conversation of the accused persons. He has deposed that Ct.Veer Pal gave the prefixed signal and four accused persons were apprehended at the spot. He has deposed about recovery of illegal arms from each accused. He has further deposed that Ct.Veer Pal disclosed the conversation to him. He prepared the rukka Ex.PW4/E and got the case registered. He has identified the case property and stated that ASI Jitender prepared the site plan Ex.PW4/F.
11. PW5 HC Narvir Singh has deposed about the investigation. He apprehended accused Manoj Kumar @ Matadin with the help of Ct. Anil Kumar and further deposed that one iron rod was recovered from his possession, sketch of which is Ex.PW4/C which was taken into possession vide memo Ex.PW4/D.
12. PW6 Ct. Madan Mohan has deposed that he deposited the case property in FSL Rohini.
State Vs.Raju @ Shankar etc. FIR No.19/07 Page No. 4 of 15
13. PW7 ASI Lal Singh has also deposed about the investigation and he was deputed in North direction of the park. He has further deposed about giving the prefixed signal by Ct. Veer Pal and apprehension of four boys at the spot. He apprehended accused Rajesh @ Kuldeep and stated that one buttondar knife was recovered from him.
14. PW8 Ct. Anil Kumar is also the member of raiding party and he has deposed about the investigation. He has deposed that he apprehended accused Manoj Kumar but he could not identify accused Manoj Kumar and he identified accused Rajender as Manoj Kumar. He has also deposed that one iron rod was recovered from him sketch of which is Ex.PW4/C. He could not tell the names of other three accused persons. He proved the arrest memo of accused Manoj Ex.PW5/A.
15. PW9 ASI Jitender Singh is the second IO and he has arrested the accused persons vide arrest memo ex.PW5/A, Ex.PW3/C, Ex.PW1/C, Ex.PW9/A and conducted their personal search vide memo Ex.PW5/B, Ex.PW1/D, Ex.PW9/B and Ex.PW3/D.
16. PW10 Sh VR Anand, is the witness from FSL an he has examined the country made pistol and gave report Ex.PW10/A.
17. PW11 HC Dheeraj Kumar is the witness from Malkhana and he brought register no.19 and proved entry in this respect which is Ex.PW11/A.
18. PW12 Sh Sanjay Kumar Jain, Addl. DCP has given the sanction u/s 39 Arms Act which is Ex.PW12/A. State Vs.Raju @ Shankar etc. FIR No.19/07 Page No. 5 of 15
19. In overall testimony of the witnesses PW1 to 12 it has come out that none of the witness except Pw3 Ct. Veerpal has heard the conversation of the accused persons who were allegedly sitting in Lala Lajpat Rai Park, Jangpura Extn., New Delhi to plan for committing dacoity. Only in the testimony of Pw4 SI Govind and PW5 HC Narvir it has come that PW3 has disclosed the conversation to them and they have deposed as to what the accused persons were talking. On perusal of the testimony of PW3 HC Veer Pal neither he has stated that he disclosed the conversation to any member of the raiding party nor he has stated in his entire testimony as to what conversation the accused persons were doing and what they were uttering when he heard their conversation. Since PW3 HC Veer Pal has not deposed anything about conversation the testimony of PW4 & 5 remained uncorroborated and their testimonies cannot be believed without the support of testimony of PW3 in this respect.PW1 Ct. Sunil and PW3 HC Veerpal both have not stated that any secret information was received by the IO. PW1 has stated that PW3 had given the prefixed signal by petting his hand on his hand while other members of the raiding party have stated that he gave the signal by waiving his hand on his head. PW1 could not tell the name of one of the accused and he has also been declared hostile with regard to identification of accused Rajender. He identified accused Rajender only when Ld. APP put him a leading question. IO of this case has not brought on record any departure entry to show that on the alleged day of incident he along with his team had gone for conducting raid. Even no DD number is mentioned by the IO in this respect. PW3 HC Veerpal could not identify accused Rajender while allegedly accused Rajender has been apprehended by him. PW3 who had allegedly heard the conversation of the accused persons has not State Vs.Raju @ Shankar etc. FIR No.19/07 Page No. 6 of 15 deposed about apprehension of other accused except accused Rajender who could not be identified by him and he identified accused Manoj as Rajender.PW1 has stated that secret informer was not with them while PW3 has stated that secret informer was with them till the apprehension of accused persons. PW3 has further stated in cross examination that the height of bushes may be around 3-1/2 to 4 feet and he heard the conversation from 5 to 7 feet. The accused were visible to him but they had not seen him. There was no light in the park. The time of gathering of accused persons is between 8 to 8.30 and when there was dark in the park it is not understandable as to how PW3 could see the accused persons. It is further not understandable as to how they were apprehended in the dark. Pw3 further stated that he could not tell the name of the police official who followed the fifth accused. PW4 SI Govind who is IO of this case has also admitted in cross examination that it is correct that the description of 5th accused is not mentioned in the rukka nor he tried to search him later on VOL. because the address was not available with him. From this version of PW4 who is IO of this case it seems that there was no 5th accused at the spot and only his dummy name has been mentioned in the rukka. If there would have been any 5th accused, IO must have made enquiry from co-accused who are facing trial and he must have come to know about the address of 5th accused. But no step has been taken by the IO in this respect. Without five accused persons the case u/s 402 IPC cannot sustain. However, I have further perused the testimony of witnesses. PW4 has stated that the accused were planning to commit dacoity in wine shop under defence colony flyover. This version of PW4 regarding committing dacoity in wine shop has not been corroborated by any other witness. PW8 Ct. Anil Kumar has apprehended accused Manoj. But he also could not identify him and he identified accused Rajender as State Vs.Raju @ Shankar etc. FIR No.19/07 Page No. 7 of 15 Manoj. He also could not stated as to which accused was apprehended by which police officer. He also could not identify any other accused accept accused Manoj. PW8 has also been declared hostile regarding identification of accused persons. PW9 ASI Jitender Singh who is the second IO of this case also could not identify the accused persons correctly. It has been admitted by all the Pws that they have not heard the conversation of accused persons with their own ears. None of the witnesses adduced by the prosecution has stated that PW3 had come back after hearing the conversation of accused persons and disclosed the same to members of raiding party as well as IO. So it seems that PW3 has neither gone to hear the conversation nor disclosed the same to the members of the raiding party. It further seems that the accused persons were apprehended without knowing the conversation of accused persons. I have also perused the arrest memos of the accused persons. PW9 ASI Jitender Singh is the second IO who arrested the accused persons in this case. It is revealed that PW9 has not been tendered for cross examination by the prosecution. So, his testimony cannot be read in evidence. Hence the arrest of accused persons remained unproved in this case. The place of apprehension of accused persons is Lala Lajpat Rai Park Jangpura, Delhi and time is between 8 to 8.30 p.m. It has been admitted by the PWS that there were residential houses near to the spot and even there were shops near to the said place. But no public witness has been joined by the police at the time of apprehension and recovery effected from the accused persons.
20. To establish the charge u/s 399 IPC the prosecution must prove that accused took some steps which amounts to preparation and they did so for the purpose of committing decoity and for establishing the State Vs.Raju @ Shankar etc. FIR No.19/07 Page No. 8 of 15 charge u/s 402 IPC the prosecution must prove that 5 or more persons had assembled and they did so for the purpose of committing decoity and for no other purpose, and the accused are five or more persons so assembled. It is not disputed that in the present case four persons were apprehended and one had succeeded to run away from the spot. PW4 IO SI Govind Chauhan has not stated anything in respect of 5th accused and he has admitted that he did not take any step to apprehend 5th accused vol. because he was not aware about his address. It seems that there was no 5th accused in this case and only a dummy name has been mentioned in the rukka. So, case u/s 402 IPC cannot sustain. Further the purpose of assembling for committing decoity can be gathered from the circumstances because it is difficulty to give any direct evidence of said purpose. As per the statement of Pw4 SI Govind Chauhan and rukka Ex. Pw4/E, the raiding party apprehended four accused persons on the indication given by Pw3 to raiding party. But PW3 has not stated as to what the accused persons were talking and whispering to each other. From the evidence on record it is crystal clear that IO PW3 has not heard any conversation to the members of the raiding party. However, in examination chief Pw3 has stated that he has heard the conversation of accused persons that they were planning to commit robbery. But he has not deposed as to what they was uttering. Also Pw3 has not stated that he come back to inform the other members of raiding party about conversation of accused persons. It means that these witnesses are only speculating that accused persons were planning to commit dacoity and there is no evidence on the file in this regard. Similarly, it has come in the evidence that no other witness has heard the conversation of any of the accused persons. In this case no public person was joined in the investigation. The time of raid is between 8.00 to 8.30 p.m which is not State Vs.Raju @ Shankar etc. FIR No.19/07 Page No. 9 of 15 the odd hours of night and if IO had made proper efforts he may have joined public witness as there was residential colony near to the spot and even some shops were also there. But no such persons or resident of the nearby area has been joined in the investigation at the time of arrest or recovery effected from the accused persons. It is well settled law in the Darshan Singh vs. State of Haryana, 1997(2) CC Cases HC 189 that :-
"When genuine attempts has not been made to join public witnesses - One is constrained to observe that in case of suppression and mis-statement of fact, it is difficult to believe the official witnesses".
It is stated in case Law Ghotlu Modi and Etc. Vs. State of Bihar 1986 CRI. L.J. 1031 that:-
'Penal Code (45 of 1860), Ss.399 and 402 - Accused persons charged with making preparation of committing dacoity - Accused persons found sitting in lonely place at night - Firearms, bombs and Bhujali recovered from them - That does not prove charge'.
21. I have also found contradictions in the testimonies of official witnesses & It is well settled principle of law that when the official witnesses themselves were not making the consistent statement, an independent corroboration would be required. However, in this case no independent witness has been joined during investigation. So, from this evidence it cannot be inferred that prosecution has been able to prove on file that accused have assembled there for the purpose of committing dacoity and for no other purpose. From the evidence on file at most that can be inferred was that they may assemble in order to discuss the State Vs.Raju @ Shankar etc. FIR No.19/07 Page No. 10 of 15 possibility of committing dacoity but there is no evidence on file to prove that they had actually assembled for the said purpose. So, in the present case I do not see any reliable evidence which shows that accused persons have assembled for the purpose of committing dacoity. It is well settled principle of law that if there are two hypothesis - one in favour of the accused and another against him, one in favour of the accused must be accepted. In the present case, I find that the prosecution has not been able to prove that accused persons had assembled with the intention to commit dacoity or were planning to do so. So, the prosecution has not been able to prove the case against the accused persons u/s 399/402 IPC.
22. It has been submitted by the Ld.defence counsel that at the time of alleged recovery weapon of offence from accused Raju @ Shankar, Rajesh @ Kuldeep and Rajender Kumar, no person from the public has been associated. So, in this regard as per the version of prosecution, accused persons were arrested between 8.30 to 9 p.m which is not the odd hours of night and the place of apprehension of the accused persons is Lala Lajpat Rai Park, Jangpura where there is residential colony as well as shops near to the place of arrest of accused persons. But no such persons or resident of the nearby area has been joined in the investigation at the time of arrest or recovery effected from the accused persons. So, in the present case no independent corroboration is available and it is well settled law that when an independent witness is not examined that by itself will falsify the prosecution case. So, non- joining the public persons creates doubt in the prosecution case. An important point has been observed in case Law 1998(8) Supreme Court 435 that in absence of independent evidence merely on basis of police officer's evidence about seizure of pistol and cartridge conviction State Vs.Raju @ Shankar etc. FIR No.19/07 Page No. 11 of 15 could not be upheld. Further,none of the PW adduced by the prosecution could tell the measure of the illegal weapons recovered from the accused persons. Allegedly illegal arms have been recovered from the accused persons in this case. But IO has not taken step to register separate case under Arms Act and he has clubbed the same with case u/s 399/402 IPC. PW12 Sh Sanjay Kumar Jain, Addl.DCP has accorded sanction u/s 39 Arms Act. I have also perused the said sanction Ex.PW12/A. It has been granted on 24.4.10. The present case incident date is 9.1.07. It seems that the sanction has been taken after thought by the IO when the trial of this case has already been commenced. It is not understandable as to on what basis PW12 has granted the sanction while all the original documents were on the court file. In view of this the sanction is not proper as per law and this create doubt in the whole case of the prosecution. In view of this it seems that no recoveries have been effected from accused Raju @ Shanker, Rajesh @ Kuldeep and Rajender Kumar and it has been falsely planted upon them later on. So, in the evidence available on record, it cannot be believable in respect of recovery of country made pistol from accused Raju @ Shanker and buttondar knives one each from accused Rajesh @ Kuldeep and Rajender Kumar. Recovery of iron rod from accused Manoj is not an offence. In view of my above discussions, I am of the considered view that the prosecution has not been able to prove its case u/s 25 Arms Act against above accused persons.
23. In view of my above discussions, I am of the considered view that prosecution has not been able to prove its case u/s 399/402 IPC against all the four accused persons and as such all the four accused persons Raju @ Shanker, Rajesh @ Kuldeep, Manoj Kumar and Rajender Kumar are acquitted of the said charges vide FIR no.19/07. Prosecution State Vs.Raju @ Shankar etc. FIR No.19/07 Page No. 12 of 15 has also not been able to prove its case against above mentioned accused Raju @ Shanker for the recovery of country made pistol and accused Rajesh @ Kuldeep and Rajender Kumar for the recovery of buttondar knives one each and as such all the three accused persons Raju @ Shanker, Rajesh @ Kuldeep and Rajender Kumar vide FIR no.19/07 are also acquitted of the said charges u/s 25 Arms Act. All the four accused are on bail in this case. So, their bail bonds/surety bonds are cancelled and sureties are discharged. File be consigned to record room.
ANNOUNCED IN THE OPEN COURT ON 19.07.2010.
(SURESH CHAND RAJAN) ADDL.SESSIONS JUDGE Fast Track Court New Delhi and South East District NEW DELHI State Vs.Raju @ Shankar etc. FIR No.19/07 Page No. 13 of 15