Delhi District Court
State vs . Anil Kumar Sehrawat Etc. on 23 May, 2011
State Vs. Anil Kumar Sehrawat etc.
IN THE COURT OF SHRI GURVINDER PAL SINGH
ADDL. SESSIONS JUDGE(FTC), SOUTH DISTRICT
SAKET COURTS, NEW DELHI
Session Case No. 74/2008
ID No. 02403R0077152004
State Vs. : 1. Anil Kumar Sehrawat
S/o Sh Jai Bhan
R/o A72, Vijay Nagar, Bawana
Delhi.
2. Rakesh Solanki @ Lala
S/o Sh Kirpal Singh
R/o H No97,Village Poothkalan
Delhi.
3. Raj Kumar @ Kapoore
S/o Sh Kali Ram
R/o 51A, Vijay Colony,
Bawana, Delhi
4. Ombir
S/o Sh Phool Chand
R/o 459, Poothkalan
Delhi.
SC No. 74/08 1/40
State Vs. Anil Kumar Sehrawat etc.
5. Dinesh Kumar Tyagi @ Titu
S/o Sh Satbir Singh
R/o Village Jhadina,
PS Garh Mukhteshwar,
District Ghaziabad, U.P.
FIR No. 154/01
P.S. Lodhi Colony
U/s 471/489B/120B IPC & 25 Arms Act
Date of Institution : 03/08/2001
Date when arguments
were heard : 07/05/2011
Date of Judgment : 23/05/2011
JUDGMENT
BRIEF FACTS:
Brief resume of the facts of the prosecution case is as follows:
Six accused persons namely Bhupinder Tyagi @ Avdesh @ Vipin @ Modi, son of Vasudev Singh; Anil Kumar Sehrawat, son SC No. 74/08 2/40 State Vs. Anil Kumar Sehrawat etc. of Sh Jai Bhan; Rakesh Solanki @ Lala, son of Sh Kripal Singh; Raj Kumar @ Kapoore, son of Sh Kali Ram; Ombir, son of Sh Phool Chand and Dinesh Kumar Tyagi @ Titu, son of Sh Satbir Singh had been charge sheeted under Section 120B/124A/489B and C/471 IPC and 25 Arms Act. FIR of this case under Section 120B read with Section 302 IPC and 124 A IPC was recorded on 04/05/2001 on the basis of an information received by the police that in order to create political instability in the country and to bring hatred, contempt and disaffection to the Government established by law in India, Pakistan's Intelligence Agency ISI conspired with accused operating from India to get Sh Tarun Tejpal, CEO of Website Tehelka.com and its Editor Investigation Sh Anirudh Bahl eliminated, who were having their office at D1, Soami Nagar, New Delhi. Killing of these two persons would be attributed to those people who have been exposed by the Website and thereby causing discredit to the Government and political instability in the country. Information was further developed that one criminal known by the name Modi having his Nepal contact telephone number had been deputed for this task. Investigation was taken up by SI Hridaya Bhushan, who further developed the SC No. 74/08 3/40 State Vs. Anil Kumar Sehrawat etc. information that four persons namely Anil Kumar Sehrawat, Raj Kumar @ Kapoore, both resident of Bawana, Delhi and Rakesh @ Lala and Ombir, both resident of Poothkalan, Delhi were in contact with criminal "Modi".
On 05/05/2001 at around 1 pm, a secret information was received at Special Cell, P.S Lodhi Colony that criminal Modi alongwith his associates would be coming via Outer Ring Road from Wazirabad side and would be carrying a large quantity of arms and ammunition. Information was taken in daily diary and Nakabandi was taken up by the police party under the supervision of SI Hridaya Bhushan. Some public persons were requested to join, but no one agreed. At around 4.30 PM, vehicle TATA Safari No. DL8CF5815 while coming from Wazirabad side was intercepted near Bhalsawa. All six accused were occupants of that vehicle with accused Raj Kumar @ Kapoore sitting on the steering wheel. Accused Bhupinder Tyagi was on the seat by the side of driver. Other four accused were on the rear seat of the vehicle. Search of the vehicle led to recovery of:
(i) A loaded pistol with 7 rounds in its magazine from the pant SC No. 74/08 4/40 State Vs. Anil Kumar Sehrawat etc. dub of Bhupinder Tyagi.
(ii)A bag containing bullet proof jacket, one AK 47 assault rifle with 30 live rounds in its magazine, one spare magazine with 30 live rounds, one polythene containing 40 rounds of AK 47.
Another polythene containing one spare magazine of pistol with 7 live rounds and 36 live rounds of pistol. This bag was found underneath the seat of Bhupinder Tyagi.
(iii) Another small hand bag, which contained Rs 25000 of counterfeit Indian currency notes (50 notes each of Rs 500 denomination) and a magazine paper bearing title "Operation Westened Ka Bhandafod" bearing photographs map of some South Delhi Colonies, wherein H.No. 1 of Soami Nagar, South had been highlighted. This bag was recovered from dash board of the vehicle. A rough sketch of office of Tarun Tejpal in Soami Nagar was also recovered in this bag. Accused Bhupinder Tyagi on interrogation disclosed that all these material including Arms and Ammunition as well counterfeit currency notes had been supplied to him in Nepal by ISI Agency and he had been entrusted with the task to kill Tarun SC No. 74/08 5/40 State Vs. Anil Kumar Sehrawat etc. Tejpal and Anirudh Bahal. The recovered arms and ammunition were seized. A mobile telephone instrument was also recovered from accused Anil Kumar Sehrawat and he disclosed that its card no. 9810422143 was being used by Bhupinder Tyagi. Another mobile telephone instrument was recovered from accused Raj Kumar. Accused Bhupinder Tyagi was also found carrying a forged driving licence bearing his photographs but then shown issued in the name of Kamal Kumar Modi, son of Sh R.P Modi. Some hand written paper slips bearing particulars about Tarun Tejpal were also recovered from Bhupinder Tyagi. Vehicle TATA Safari with its original registration certificate showing one Rajesh Kumar, resident of K368, Rishi Garden, Rani Bagh, Delhi as its owner and other documents were also recovered and seized. One leather folder containing some documents of the vehicle Bolero bearing temporary registration No. WB20/TB1028 in the name of one Daya Nand Singh, resident of District Chapra, Bihar was also recovered from this vehicle and Bhupinder Tyagi disclosed that documents of Bolero vehicle belonged to one Munna of SC No. 74/08 6/40 State Vs. Anil Kumar Sehrawat etc. Hazirpur, Bihar, who was kidnapped by him for ranson in January, 2001. Accused Bhupinder Tyagi then gave a detailed disclosures whereby a criminal conspiracy had been hatched to kill Tarun Tejpal and Anirudh Bahal. He further disclosed that out of counterfeit currency notes Rs 30,000/, he had already spent Rs 5000/. Subsequently, a bag containing one AK 47 rifle with two magazines, 100 rounds, one pistol with two magazines and 50 rounds were recovered from Anil Kumar Sehrawat from house in Bawana at his instance on 06/05/2001. Another recovery was a bag containing clothes of accused Bhupinder Tyagi, which was recovered at the instance of accused Bhupinder Tyagi, but from the house of accused Raj Kumar in Bawana. Recovered arms and ammunition, counterfeit currency notes and documents were sent to FSL, Currency Note Press, Nasik Road, Maharashtra. FSL report confirmed that recovered pistol and AK47 rifle were fire arms and in working order and the recovered cartridges were ammunition and were live one. Sanction for prosecution as required under Section 39 Arms Act was obtained. Report SC No. 74/08 7/40 State Vs. Anil Kumar Sehrawat etc. from Currency Note Press confirmed that recovered currency notes of 500 denomination were counterfeit.
On completion of investigation, charge sheet was filed against the accused persons.
2. On completing the requirements of Section 207 IPC, the case was committed to the Court of Sessions.
CHARGE:
3. In terms of order dated 08/02/2002 of my Ld. Predecessor charge for offences under Section 25 Arms Act; 489B read with Section 120 B IPC was framed against all accused. Also charges for offence under Section 25 Arms Act against accused Anil Kumar Sehrawat and for offences under Sections 3/25 Arms Act and 471 IPC was framed against accused Bhupinder Tyagi. All accused pleaded not guilty and claimed trial.
4. Proceedings against accused Bhupinder Tyagi were abated vide order dated 21/07/2008 of my Ld Predecessor since said SC No. 74/08 8/40 State Vs. Anil Kumar Sehrawat etc. accused had expired while he was trying to escape from jail. WITNESSES:
5. To connect the accused with the offences charged, the prosecution has examined in all 21 witnesses.
5(i) PW1 Sh Anirudh Behl and PW2 Sh Tarun Tejpal testified of having been informed by the officers of investigating agency about some persons had been hired for their killing. None amongst them is the witness to apprehension or any recovery of any object from any of the accused.
5(ii) PW3 Sh Rajesh Kumar Arora testified that when in the year 2001 he was working as a Torch man at Samrat Cinema Hall, at the request of his friend, Jagdish Arora, he got financed TATA Safari car bearing no. DL8CF5815 in his name whose installments were started to be paid by said Jagdish Arora and after payment of 2/3 installments further installments were not paid. 5(iii) PW4 Sh Rakesh Mishra testified of running computer training centre by the name Flair Computer Point in Ishwar Colony, Bawana and had resiled from his previous statement and was cross SC No. 74/08 9/40 State Vs. Anil Kumar Sehrawat etc. examined by Ld. Addl. PP. PW4 denied of knowing accused Anil Kumar Sehrawat or that accused Anil Kumar Sehrawat had ever come to his place of work.
5(iv) PW6 Sh Parveen Sharma, the brother in law (Sadu) of PW7 Sh Jagdish Arora had resiled from his previous statement, was cross examined by Ld. Addl. PP. PW6 feigned ignorance of any purchase of TATA Safari car by PW7 Sh Jagdish Arora. 5(v) PW7 Sh Jagdish Arora had also resiled from his previous statement was cross examined by Ld. Addl. PP and stated that he never had any concern as either owner or possessor of vehicle TATA Safari No. DL8CF5815 nor he ever handed the vehicle to anybody nor had got the said vehicle financed in the name of PW3 Rajesh Kumar. PW7 stated that he had never seen the said vehicle or RC of said vehicle physically.
5(vi) PW8 HC Kamal Chand being duty officer at police station Lodhi Colony had proved his scribed FIR No. 154/2001 as Ex PW8/A. 5(vii) PW10 Sh R. Karnik, Deputy Manager, Currency Note Press, Nasik Road, Nasik had examined fifty currency notes each of SC No. 74/08 10/40 State Vs. Anil Kumar Sehrawat etc. Rs 500/ denomination, Ex P13 collectively and opined them to be counterfeit in his detailed report Ex PW10/A. PW10 elicited that for a common man it is very difficult to make a distinction between counterfeit currency notes Ex P13 and the genuine currency notes as to which one was counterfeit and genuine. He also stated that counterfeit currency notes Ex P13 were in resemblance to genuine currency notes designed in 1995.
5(viii) PW11 Sh Alok Kumar, Addl. DCP had accorded and proved his sanction under Section 39 of Arms Act as Ex PW11/A for prosecution of accused persons under Arms Act. 5(ix) PW12 Sh Puran Singh was the Record Attendant, Authority Ashok Vihar and had brought the record of vehicle no. DL8CF5815 registered there in the name of Rajesh Kumar, resident of K368, Rishi Nagar, Rani Bagh, Delhi34.
5(x) PW13 HC Rajesh had taken three sealed parcels with two FSL Forms and sample seal from MHC(M) police station Lodhi Colony to FSL Malviya Nagar vide RC No. 49/21 on 23/05/2001 on the direction of IO/ PW21 Inspector Hriday Bhushan and had deposited them intact there.
SC No. 74/08 11/40
State Vs. Anil Kumar Sehrawat etc. 5(xi) PW14 Captain Rakesh Bakshi, Senior Security Manager, Bharti Cellular Ltd had testified of having given reply Ex PW14/A regarding the details of mobile phone no. 9810422143, the customer bill in the name of accused Anil Kumar Sehrawat Ex PW14/B, generated by computer and the call record, computer generated as Ex PW14/C. 5(xii) PW15 Sh Gulshan Arora, Nodal Officer, Hudsan Essar, testified that the letter giving call details Ex PW15/A was bearing signature of their employee Rajiv Pandit who had left the services of company and the call details of mobile phone no. 9811061249 as obtained from computerized data in their computer system for period 31/01/2001 to 02/05/2001 was Ex PW15/B. PW15 stated that the aforesaid cell phone did not function after 02/05/2001, so there was no data available after 02/05/2001.
5(xiii) PW16 Ct Ajit Singh took five sealed envelopes sealed with the seal of HP from MHC(M) Lodhi Colony vide RC No. 58/21 on 15/06/2001 on direction of IO and delivered them to CFSL with seals intact.
5(xiv) PW17 Sh K.C Varshney, Senior Scientific Officer SC No. 74/08 12/40 State Vs. Anil Kumar Sehrawat etc. (Ballistic) FSL, Rohini had examined one assault rifle of 7.62 mm calibre with one spare magazine; 100 cartridges, one pistol of .30 inch calibre with one spare magazine and 50 cartridges of .30 inch; one pistol of .30 inch calibre and 7 cartridges of .30 inch; one assault riffle of 7.62 mm calibre with one spare magazine and 100 cartridges of 7.62 mm, one magazine of pistol .30 inch calibre, 43 cartridges of .30 inch callibre and one bullet proof jacket, furnished his report Ex PW17/A opining them to be fire arms and ammunition. 5(xv) PW18 Sh R.N Sharma, Deputy Commissioner, Sales Tax testified that while he was posted as Deputy Secretary Home during August 2001, he conveyed the order of Hon'ble LG giving sanction for prosecution of accused Bhupinder Tyagi and others for their prosecution under Section 120 read with Section 124 A IPC. PW18 stated that the sanction under Section 196 for prosecution of the accused was Ex PW18/A, issued by him by order and in the name of Hon'ble LG.
5(xvi) PW19 SI Jai Kishan took one sealed parcel of counterfeit currency notes of Rs 25,000/ with sample seal of police station Lodhi Colony vide RC No. 55/21 and deposited the same at SC No. 74/08 13/40 State Vs. Anil Kumar Sehrawat etc. Currency Notes Press, Nasik on 13/06/2001 with seal intact. 5(xvii) PW20 HC Pratap Singh is the MHC(M) with whom the case property was deposited on 05/05/2001 for which entries were made in Sl. Nos. 994 and 1004. Later several parcels were sent for expert opinion on 23/05/2001, 12/06/2001 and 15/06/2001. PW20 had proved the copies of the entries as Ex PW20/A (collectively). 5(xviii) PW5 SI Govind Ram, PW9 SI Badrish Dutt and PW21 IO/ Inspector Hriday Bhushan are the material witnesses examined, members of the raiding party and their evidence shall be appreciated later in the course of judgment.
STATEMENTS OF ACCUSED:
6. Thereafter accused persons were examined under Section 313 Cr.P.C by my Ld. Predecessor. All incriminating material in evidence was put to the accused persons. Accused persons pleaded innocence and false implication.
6(i) Accused Anil Sehrawat stated that he alongwith Raj Kumar were lifted from their house i.e Village Bawana by the Special Cell of Delhi Police on 02/05/2001 and kept in their illegal SC No. 74/08 14/40 State Vs. Anil Kumar Sehrawat etc. detention; his family members gave a call to the PCR and also lodged complaint to police station Bawana on 04/05/2001 vide DD No. 39 B, Mark A; he was falsely implicated in this case by the Special Cell of the Delhi Police; his signatures had been taken on blank papers and had been used against him by the police officials. 6(ii) Accused Rakesh Solanki stated that he was lifted from his house no. 97, Pooth Kalan, Delhi in the morning of 02/05/2001 by the Special Cell, Delhi Police officials and kept in their illegal detention. Accused Rakesh Solanki stated that he was falsely implicated in this case by the Special Cell police officials and all the recoveries have been planted upon him by the police officials. Accused Rakesh Solanki further stated that his signatures were obtained on blank papers by the police officials forcibly under pressure and have been used against him by converting the same into the documents against him.
6(iii) Accused Ombir stated that stated that he was lifted from his house no. 459, Pooth Kalan, Delhi in the morning of 02/05/2001 by the Special Cell, Delhi, Delhi Police officials and kept in their illegal detention. Accused Ombir further stated that he was falsely SC No. 74/08 15/40 State Vs. Anil Kumar Sehrawat etc. implicated in this case by the Special Cell police officials and all the recoveries have been planted upon him by the police officials. Accused Ombir stated that his signatures were obtained on blank papers by the police officials forcibly under pressure and have been used against him by converting the same into the documents against him.
6(iv) Accused Raj Kapoor @ Kapoore stated that he alongwith accused Anil Kumar were lifted from their house i.e Village Bawana by the Special Cell of Delhi Police on 02/05/2001 and kept in their illegal detention. His family members made a call to the PCR on the basis of which DD No. 39B was registered with the police of PS Bawana, on record and nothing was recovered from him and the recoveries as alleged have been planted upon him by the Special Cell of Delhi Police. Accused Raj Kumar further stated that Special Cell obtained his signatures on certain blank papers which were converted into documents by the officials of the Special Cell of Delhi Police and have been used against him. 6(v) Accused Dinesh Kumar Tyagi stated that he had been lifted by the Special Cell of the Delhi Police from ISBT on 03/05/2001 SC No. 74/08 16/40 State Vs. Anil Kumar Sehrawat etc. and had been falsely implicated in the instant case by the said police officials as also the recoveries alleged against him have been planted upon him by the Special Cell of the Delhi Police. Accused Dinesh Tyagi further stated that his signatures have been taken on blank papers and have been used against him by the police officials by converting the same into documents against him. DEFENCE EVIDENCE:
7. The accused persons entered into upon their defence and had examined four defence witnesses.
7(i) DW1 Sh Ram Kumar, uncle of accused Anil Kumar Sehrawat, testified that when he was at Haridwar on 02/05/2001 he received information that accused Anil Kumar Sehrawat had been lifted by the police from Bawana, Delhi and DW1 returned back to Delhi on 03/05/2001, made enquiries at his house, the house of the accused, in the evening of 3/05/2001 and then in the morning of 4/5/2001 and then visited police station Bawana but no official had provided him information regarding the accused. DW1 stated that then he had lodged the information vide DD No. 39B dated SC No. 74/08 17/40 State Vs. Anil Kumar Sehrawat etc. 04/05/2001 at about 7 pm with the police station Bawana regarding the lifting of the accused Anil Kumar Sehrawat and Raj Kumar @ Kapoore from their village by the police. DW1 also stated that police had then informed him on 04/05/2001 at about 9.15 pm that the accused had been arrested by the Special Staff of Police Station Lodhi Colony and they were confined at said police station at that time. 7(ii) DW2 Sh Balbir Singh, resident of house no. 95, Poothkalan, Delhi, testified that on 2/5/2001 at about 9 am number of police persons had come to their locality, taken away accused Rakesh Solanki, his neighbour, with them. On asking of DW2, said police officials told DW2 that they required said accused for making enquiries in respect of a case and they would let him go in the evening of that day but accused Rakesh was not released that day. On 04/05/2001, when father of accused Rakesh and DW2 had gone to Special Cell, Lodhi Colony, police personel told them that they would release the accused Rakesh on the evening of that day. DW2 came to know after 2/3 days that accused Rakesh was arrested by police in some case.
7(iii) DW3 Sh Rakesh Kumar, resident of house no. 444, SC No. 74/08 18/40 State Vs. Anil Kumar Sehrawat etc. Village, Poothkalan, Delhi, testified that on 02/05/2001 at 10/11 am number of police persons had come to their locality, some were in uniform and others were in civil clothes while he was standing at the gate of his house, saw the police officials had entered the house of the accused Ombir, his neighbour. Police officials told that Ombir was required in some enquiry of some case and took him away saying that he will be let off in the evening but Ombir was not released that day. After 3/4 days DW3 came to know that accused Ombir was arrested by police in some case.
7(iv) DW4 SI Umed Singh testified that on 4/5/2001 he was posted as Sub Inspector at police station Bawana and he received DD No. 39 B, copy Ex DW4/A, dated 04/05/2001 at about 9.20 pm for enquiry and after enquiry he returned back to police station and recorded his arrival vide DD No. 19A, copy Ex DW4/B. DW4 stated that during his enquiry accused Raj Kumar @ Kapoore and Anil Kumar Sehrawat were not found at their given addresses. ARGUMENTS
8. I have heard the arguments of Ld. Addl. PP for the SC No. 74/08 19/40 State Vs. Anil Kumar Sehrawat etc. State, the accused and the defence counsel and have perused the record including the evidence led and given my thoughts to the rival contentions put forth.
8(i) Ld. Addl. PP argued that the vehicle found to be used by the accused persons was registered in a fictitious name, delivery taken by accused Ombir who was conduit with accused Bhupinder (now deceased). The accused persons were apprehended in the TATA Safari no. DL8CF5815 after the trap was laid on receipt of secret information and huge amount of recovery of arms, ammunition and counterfeit currency was effected from the accused besides the map and site plan also being there in the vehicle and such possession of accused is to be construed as the constructive possession of the accused persons while later at the instance of the accused Anil Kumar Sehrawat from his house at Bawana and at the instance of accused Bhupinder from house of accused Raj Kumar @ Kapoore, more arms and ammunition were recovered. Ld. Addl. PP prayed that the prosecution has proved its case against the accused for unlawful possession of such arms, ammunition and counterfeit currency notes SC No. 74/08 20/40 State Vs. Anil Kumar Sehrawat etc. in furtherance of conspiracy and had prayed for conviction of the accused.
8(ii) Ld. Defence Counsel argued that the entire case of prosecution is based on (a)hearsay evidence, (b)disclosure statements of accused persons and (c)alleged recovery. It was argued that no commission of offence of murder took place, yet on the basis of hearsay evidence initially FIR was registered under Section 302 IPC; the secret information was received by Inspector Mohan Chand Sharma of Special Cell, Lodhi Colony who was neither cited nor examined as a prosecution witness, so any information heard by said official cannot be proved by other police witnesses being hearsay evidence and hit by Section 60 of the Evidence Act; recovery of mobile phone no. 9811061249 is allegedly from accused Raj Kumar @ Kapoore but it has not been proved that the accused was owner of said mobile phone; the registered owner of TATA Safari no. DL8CF5815 PW3 Sh Rajesh Kumar Arora, the possessor of said car namely PW7 Sh Jagdish Arora have not at all supported the case of prosecution; it is not the case of prosecution that currency notes and the arms and ammunition were lying openly in the car, accessable to SC No. 74/08 21/40 State Vs. Anil Kumar Sehrawat etc. one and all or the fake currency notes and arms and ammunition were within the knowledge of arrayed accused; despite admitted availability neither any independent inhabitant of locality or any other independent witness has been joined in alleged recoveries of case properties alleged to have been effected from the accused and the mandate of law has been kept at bay; no separate FIR was registered under Section 25 Arms Act in respect of alleged recoveries later to 05/05/2001, qua which the alleged offences were distinct and not part of same transaction; local police of the places of the alleged recoveries was neither informed at the time of raid or apprehension of accused or seizure of case property or even later; accused Raj Kumar @ Kapoore and Anil Kumar Sehrawat were abducted by the police as have been narrated by the defence witnesses for which even DD No. 39 B, Ex DW4/A, was lodged bringing into fore reasonable possible view of false implication of the accused persons rendering prosecution having failed to prove its case against the accused, beyond reasonable doubt. It was prayed that the accused deserved acquittal. SC No. 74/08 22/40
State Vs. Anil Kumar Sehrawat etc. APPRECIATION OF EVIDENCE:
9. PW5 SI Govind Ram; PW9 SI Badrish and PW21 Inspector Hriday Bhushan, the investigating officer are the material witnesses, the members of the raiding party. Raiding party was organized pursuant to receipt of secret information on telephone by Inspector Mohan Chand Sharma on 05/05/2001 recorded in DD No. 7A, copy Ex PW5/A, at Special Cell, NOR(OC), Lodhi Colony. The recipient of said information was only Inspector Mohan Chand Sharma who in this case has neither been cited nor examined as prosecution witness. In the absence of testimony of said Inspector Mohan Chand Sharma in prosecution evidence, the information contained in DD No. 7A remains hearsay evidence, inadmissible being hit by Section 60 of the Indian Evidence Act. Reliance placed upon the pronouncement in case of Bhugdomal Gangaram & Ors vs. The State of Gujarat, AIR 1983 SC 906.
10. PWs5,9 and 21 testified of the fact that in all 12/13 police officials departed from Special Cell at Lodhi Road and reached Mukarba Chowk by around 2.15 pm. PW9 stated that SI SC No. 74/08 23/40 State Vs. Anil Kumar Sehrawat etc. Mehtab Singh alongwith other police staff was already present in the area, they were called and they joined the aforesaid officials of Special Cell. PW9 was categorical in saying that 12/13 police officials had departed from Special Cell and had joined at the spot and in all they were around 17/18/19 officials at Mukarba Chowk. The investigating officer PW21 narrated regarding aspect of departing of 12 police officials from Special Cell and seven members including SI Mehtab Singh joining them at spot of Mukarba Chowk. PW5 in his examination did not say that SI Mehtab Singh and other police officials were either called from Mukarba Chowk or they had joined the officials of Special Cell at Mukarba Chowk. As per all these material witnesses PWs 5,9 and 21, the trap was laid near the Mukarba Chowk point after PW1 tried to join some public persons at the spot and none having agreed. At about 4.30 pm from Wazirabad side vehicle TATA Safari bearing no. DL8CF5815 driven by accused Raj Kumar @ Kapoore, accused Bhupinder Tyagi (now deceased) on seat by the side of driver and other four arrayed accused being in the rear seat of the vehicle arrived. Said vehicle was intercepted by the members of the raiding party by putting the vehicle having Inspector SC No. 74/08 24/40 State Vs. Anil Kumar Sehrawat etc. Mohan Chand Sharma in front of TATA Safari vehicle no.
DL8CF5815. Allegedly a loaded pistol, Ex P1, with 7 rounds , in its magazine Ex P2 from the pant dub of Bhupinder Tyagi; a bag, Ex P3, containing bullet proof jacket, Ex P5, one AK 47 assault rifle, Ex P6, with 30 live rounds, Ex P7, one spare magazine, Ex P8, one polythene containing 40 rounds of AK 47, Ex P9; another polythene containing one spare magazine of pistol with 7 live rounds, Ex P10 and 36 live rounds of pistol, Ex P11. The bag was found underneath the seat of Bhupinder Tyagi; another small hand bag, Ex P12, which contained Rs 25000 of counterfeit Indian currency notes (50 notes of Rs 500 denomination), Ex P13, and a magazine paper bearing title "Operation Westened Ka Bhandafod" bearing photographs map of some South Delhi Colonies, wherein H.No. 1 of Soami Nagar, South had been highlighted, Ex P14 and Ex P15; this bag was recovered from dash board of the vehicle; a mobile telephone instrument, Ex P16, was also recovered from accused Anil Kumar Sehrawat; another mobile telephone instrument, Ex P17, was recovered from accused Raj Kumar; pocket diaries Ex P18 and Ex P19 were recovered from accused Anil Kumar Sehrawat and Dinesh Kumar Tyagi; accused SC No. 74/08 25/40 State Vs. Anil Kumar Sehrawat etc. Bhupinder Tyagi was also found carrying a forged driving licence, Ex P20, bearing his photographs but then shown issued in the name of Kamal Kumar Modi, son of Sh R.P Modi; some hand written paper slips bearing particulars about Tarun Tejpal were also recovered from Bhupinder Tyagi; vehicle TATA Safari, Ex PW5/A1, with its original registration certificate showing one Rajesh Kumar, resident of K368, Rishi Garden, Rani Bagh, Delhi as its owner and other documents were also recovered and seized; one leather folder containing some documents of the vehicle Bolero bearing temporary registration No. WB20/TB1028 in the name of one Daya Nand Singh, resident of District Chapra, Bihar was also recovered. The said articles were seized vide memos Exts PW5/E, PW5/F, PW5/G, PW5/H, PW5/L and PW5/M. No chance prints were lifted from any portion of the vehicle or from the arms and ammunition alleged to have been recovered. PW5 stated that the interception of the vehicle took place within 4/5 minutes and no accused had made any attempt to run away or had grappled with all members of the raiding party nor had tried to wriggle out from their clutches. These material witnesses also stated that the road was not blocked around 2.15 pm but they had taken SC No. 74/08 26/40 State Vs. Anil Kumar Sehrawat etc. position around the road. PW5 narrated that an advance team had been sent on scooter ahead on the road and the advance team had given the information of vehicle of accused persons coming towards them upon which they became alert and spotted the vehicle from the distance of 200/300 metres. PW5 also elicited that no fire from either side took place at the spot of apprehension of the accused and none of the accused person was holding revolver/pistol in his hand. PW9 as well as PW21 did not say of any advance team sent on scooter ahead on the road and said team having given information of vehicle of accused coming towards the raiding party upon which they had become alert and spotted the vehicle of accused persons from distance of 200/300 metres. PW9 stated that they had left the spot finally at around 10.30 pm. PW21 stated that they remained present at the spot for 8/9 hours in total.
11. As per version of these material witnesses PWs 5,9 and 21 in the intervening night of 05/05/2001 and 06/05/2001 at Special Cell the disclosure statements Exts PW5/N, PW5/P, PW5/V, PW5/O, PW5/PQ, PW5/Q, PW5/R &PW5/S were recorded and at the instance SC No. 74/08 27/40 State Vs. Anil Kumar Sehrawat etc. of accused Anil Kumar Sehrawat, subsequently, a bag containing one AK 47 rifle with two magazines, 100 rounds, one pistol with two magazines and 50 rounds were recovered from accused Anil Kumar Sehrawat from his house in Bawana on 06/05/2001; also at instance of accused Bhupinder Tyagi (now deceased) recovery of bag containing clothes of accused Bhupinder Tyagi (now deceased) Ex PW5/A17, was effected from house of accused Raj Kumar @ Kapoore on 06/05/2001.
12. Subsequent to receipt of secret information at 1 pm at Special Cell at Lodhi Colony, the arrival of the members of the raiding party at 2.15 pm near Mukarba Chowk, as per PW9 who were 17/18/19 officials in all and till all the members of the raiding party remained at the spot till 10.30 pm in the night, on the way as well as at the spot, apparently no sincere efforts have been made by the responsible officers of investigating agency for joining of any independent witness(es) in the raiding party; interception of the vehicle of the accused regarding which they allegedly had concrete information, recovery of the alleged arms and ammunition and SC No. 74/08 28/40 State Vs. Anil Kumar Sehrawat etc. counterfeit currency notes and the consequential arrest of the accused to lend credence to their such acts in the course of investigation.
13. Admittedly, before arrival at the spot near Mukarba Chowk at around 2.15 pm till 10.30 pm when the officers of the investigating agency left the spot, before or after apprehension of the accused, before or after the alleged recovery of the case property, aforesaid, no efforts had been made to inform or call upon the incharge of the police station within whose jurisdiction such raid was organized and such recovery was allegedly effected.
14. Even for searching the alleged places of accused Anil Kumar Sehrawat and Raj Kumar @ Kapoore on 06/05/2001 when the officials of investigating agency had with them the information of the arms, ammunition and the clothes of accused Bhupinder Tyagi (now deceased) respectively being at such places, neither the incharges of police stations having jurisdiction over such places were informed nor their services were requisitioned before or in the course of conducting such searches or seizure. Even subsequent to alleged SC No. 74/08 29/40 State Vs. Anil Kumar Sehrawat etc. recovery and seizure of the said case property neither the case propety was deposited with the incharges of the such police station having jurisdiction over the area from where such seizures were made nor even the copies of such recoveries were duly sent to them.
15. Investigating officer belonging to one police station is permitted to search any place falling within the limits of another police station in certain exigencies without making any requirement to the police officer of the police station where the search is to be conducted in certain exigencies. One such exigency can be when there is possibility of delay in requisitioning the services of the police officer of another police station and such delay could defeat the very purpose of the search. In such circumstances, when search is conducted by the investigating officer without requisitioning the services of the officer incharge of the another police station within whose jurisdiction the search was conducted, under SubSection (4) of Section 100 Cr.P.C, he is required to forthwith send notice of the search to the officer incharge of the police station within the limits of which such place is situated, and is also required to send alongwith SC No. 74/08 30/40 State Vs. Anil Kumar Sehrawat etc. such notice a copy of the list, if any, prepared under Section 100 Cr.P.C. He is also required to send to the nearest Magistrate empowered to take cognizance of the offence, copy of the records prepared by him under subSection (1) and (3) of Section 165 Cr.P.C.
16. Failure to comply with the provisions regulating searches casts doubt over the bonafides of the officers conducting such searches.
17. Alongwith the chargesheet, excepting copy of DD No. 7, Ex PW5/A, dated 05/05/2001, no other copy of daily diary containing any information of departure and return of members of investigating agency, any investigation work done on 05/05/2001 and 06/05/2001 had been placed on record nor proved. PW5 admitted that when they left the Cell of their branch for investigation, the departure entry was made. Yet for reasons best known to the officers of the investigating agency, such entries were with held.
18. In this fact of the matter, non joining of the independent SC No. 74/08 31/40 State Vs. Anil Kumar Sehrawat etc. witness(es) in the entire sequence of occurrence of facts in the course of investigation from the time of organisation of the raid till recovery and seizure of the alleged case property on 05/05/2001 and 06/05/2001 and non placing on record the arrival and departure entries of any or all officers of the investigating agency, bring into fore the fact that the genesis of the crime is suppressed as no witness from the locality whose presence could be natural was joined in the investigation, cited or examined, which creates a doubt regarding the truth of the prosecution version. Reliance placed upon in the case of State of U.P vs. Madan Mohan and Others, AIR 1989 SC 1519 and Pawan Kumar vs. Delhi Administration, 1989 Cri.L.J 127.
19. The call details records of mobile phone no. 9810422143, Ex PW14/C and of mobile phone no. 9811061249, Ex PW15/B, are not supported by any requisite certificate under Section 65 B of the Evidence Act, so as to prove them in accordance with the law.
20. For taking the specimen writings of the accused persons namely Bhupinder Tyagi (now deceased), Anil Kumar Sehrawat, SC No. 74/08 32/40 State Vs. Anil Kumar Sehrawat etc. Ombir and Dinesh Kumar Tyagi on 09/05/2001 in the course of their police custody remand and later, no permission from Metropolitan Magistrate was taken by investigating agency inter alia in violation of Section 5 of the Identification of the Prisoners Act and in terms of the law laid in cases (1) Avadesh vs State of Delhi, 2009 (3) LRC (Del) D.B (7) and (2) Sukhvinder Singh & Ors. vs. State of Punjab 1994 (5) SCC 152, such report of expert regarding such specimen writings cannot be read in evidence.
21. DW4 has proved on record the copy of DD No. 39 B, dated 04/05/2001 as Ex DW4/A finding mention of lifting of accused Anil Kumar Sehrawat and Raj Kumar @ Kapoore on 02/05/2001 at about 11 am from Bawana by the police and about the hearsay version of the said persons having been murdered. DW4 stated that on enquiry he found the information regarding murder of such persons as false. DW1 stated that on 04/05/2001 at about 9.15 pm he was informed by the police that accused had been arrested by the Special Staff of police station Lodhi Colony who had confined them at said police station at that time.
SC No. 74/08 33/40
State Vs. Anil Kumar Sehrawat etc.
22. In the case of State of Haryana vs Ram Singh, 2002 (1) JCC 385, it was inter alia held that the evidence tendered by the defence witness is entitled to equal treatment and equal respect as that of the prosecution and cannot always be termed to be a tainted one and the trustworthiness ought also to be attributed to the defence witnesses at par with that of the prosecution.
23. Even though the aforesaid call details record Exts PW14/C and PW15/B of the mobile phones, allegedly used by the two of the accused persons have not been proved by the prosecution but since these documents have been filed by the prosecution, fact remains none of these call details records is having any detail of any calls later to 02/05/2001. If in terms of the presented case of prosecution, the accused persons were apprehended in the afternoon of 05/05/2001, then the mobile call record details of the accused persons, aforesaid, would have been before their such apprehension. If the accused persons were so allegedly lifted on 02/05/2001 as per the version of the defence witnesses DWs 1,2 and 3 then there was all SC No. 74/08 34/40 State Vs. Anil Kumar Sehrawat etc. likelihood of non functioning of such mobiles after alleged apprehension and lifting of the accused.
24. No finger prints were lifted from inside the vehicle in which accused were allegedly found travelling, from the bags in which arms and ammunition were allegedly kept and the arms and ammunition themselves. Had such finger prints been lifted from such arms and ammunition, it would have furnished strong corroborative evidence. There were allegedly about 19 responsible officials of investigating agency at the place of alleged apprehension of accused and such recovery. Amongst them one is investigating officer and two officers viz., PW5 and PW9 are the attesting witnesses to the documents of seizure. Services of the remaining members of the investigating agency present at the spot could have been effectively utilized and even services of the crime team could have been utilized for getting finger prints, if any, lifted from the case property including alleged arms and ammunition. Reliance placed upon the case of Datar Singh vs The State of Punjab, AIR 1974 SC 1193. Also other members of the raiding party excepting PWs5,9 and 21 SC No. 74/08 35/40 State Vs. Anil Kumar Sehrawat etc. have neither been cited nor examined in the course of prosecution evidence nor on record any document of their departure and arrival alongwith PWs5,9 and 21 have been placed on record nor proved.
25. PW10 testified that the counterfeit currency notes Ex P13 were in resemblance to genuine currency notes designed in 1995 and it was very difficult for a common man to make a distinction between these counterfeit currency notes Ex P13 and the genuine currency notes as to which one was counterfeit and genuine.
26. In the case of M. Mammuti vs. State of Karnataka, AIR 1979 SC 1705, Hon'ble Supreme Court held that when by mere look at counterfeit currency notes, it would not convince anybody that they were counterfeit, then a presumption that accused knew such notes in his possession were counterfeit, cannot be drawn.
27. Here, there is no evidence of any witness to show that counterfeit currency notes, Ex P13, were of such nature or description that mere look at them would convince any person of SC No. 74/08 36/40 State Vs. Anil Kumar Sehrawat etc. average intelligence that they were counterfeit currency notes. There is also no evidence of any use of such counterfeit notes by the accused or any of the arrayed accused being in conscious possession of such counterfeit currency notes. These currency notes were allegedly in the dash board of vehicle no. DL8CF5815, TATA Safari, which was not registered in the name of any of the accused persons.
28. First precondition for an offence under Section 25 (1) (a) of Arms Act is the element of intention, consciousness or knowledge with which a person possessed the fire arms. There is no evidence on record that any or all the accused in this fact of the matter had any control or dominion exclusively or jointly over the allegedly recovered arms and ammunition. It has not been established on record, beyond reasonable doubt, that there existed the defacto relation of control or dominion of the accused over such fire arms or ammunition. Reliance placed upon the pronouncement in the case of Gunwant Lal vs. State of M.P, AIR 1972 SC 1756.
29. It was held in the case of Arjan Singh vs The State, SC No. 74/08 37/40 State Vs. Anil Kumar Sehrawat etc. AIR 1965 Punjab 443 that there should not be a joint trial of the accused for offence under Indian Penal Code and Section 25 Arms Act when two offences are distinct and the offences under Indian Penal Code and recovery of the arms are not the part of the same transaction.
30. Herein the recoveries allegedly effected at the houses of accused Anil Kumar Sehrawat and Raj Kumar @ Kapoore on 06/05/2001 were not part of the transaction of recovery of alleged arms and ammunition and counterfeit currency notes from the arrayed accused on 05/05/2001. There was no continuity of purpose, design or action in such alleged unlawful retention of such fire arms and ammunition.
31. In the case of Prem Singh Yadav vs. Central Bureau of Investigation, 178 (2011) DLT 529, it was held that where it is possible to have both the views, one in favour of the prosecution and the other in favour of the accused, the latter should prevail. Pronouncements in case of Dilip v. State of M.P., 1 (2007)CCR 354 SC No. 74/08 38/40 State Vs. Anil Kumar Sehrawat etc. (SC)=II (2007) SLT 60=[2009] 1 SCC 450 and Gagan Kanejia v. State of Punjab, I (2007)CCR 89 (SC)= IX (2006) SLT 406=[2006] 13 SCC 516 were relied.
32. The substratum of the prosecution case has several holes which cannot be plugged. No new story can be reconstructed by this court.
The elicited intrinsic circumstances speak volumes against the prosecution case and raise considerable amount of suspicion in mind regarding the complicity of the accused in the commission of alleged offences.
Even falsehood is sometimes given an adroit appearance of truth, so that truth disappears and falsehood comes on the surface. This appears to be one of those cases.
The aforesaid infirmities in the background of reasonable possibility of false implication of the accused persons, elicited above, renders the prosecution version not proved, beyond reasonable doubt.
33. Relying upon the law laid and elicited in the preceding SC No. 74/08 39/40 State Vs. Anil Kumar Sehrawat etc. paragraphs, since two views are possible on the evidence adduced in this case, one pointing to the guilt of the accused and other to their innocence, view which is favourable to the accused is being adopted. All the accused persons are given benefit of doubt and are acquitted for the offences charged. Bails bonds of accused on bail are canceled and their sureties are discharged. Superintendent Jail be directed to release accused Dinesh Tyagi from jail, if not required in any other case. Case properties be confiscated to the State after expiry of period of appeal. File be consigned to record room.
Announced in the open court (GURVINDER PAL SINGH)
on dated 23/05/2011 ASJ (FTC)/SD/ NEW DELHI.
SC No. 74/08 40/40