Delhi District Court
Sc No. 57816/16 Fir No. 31/12 Ps. Sultan ... vs . Rajesh @ Toni & Anr. Page No. 1 Of 17 on 21 December, 2017
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IN THE COURT OF SH. SANJEEV AGGARWAL
ADDL. SESSIONS JUDGE02, NORTH
ROHINI COURTS, DELHI
STATE CASE No........................................... 57816/16
FIR No. 31/12
PS Sultan Puri
U/s: 307/186/353/34 IPC
25/27 Arms Act
State
Versus
1.Rajesh Kumar @ Toni S/o. Ramesh Kumar R/o. H. No. 364/A, Friends Enclave Sultan Puri, Delhi
2. Rajiv @ Appu S/o. Ramesh Kumar R/o. H. No. 364/A, Friends Enclave Sultan Puri, Delhi Date of institution: 05.06.2012 Judgment reserved on: 15.12.2017 Judgment delivered on: 21.12.2017 ORDER/JUDGMENT: The accused Rajesh @ Toni is acquitted of the offence(s) u/S. 186/353/307/34 IPC and u/S. 25/27 Arms Act The accused Rajiv @ Appu is acquitted of the offence(s) u/S. 186/353/307/34 IPC and u/S. 25 Arms Act J U D G M E N T SC No. 57816/16 FIR No. 31/12 PS. Sultan Puri State Vs. Rajesh @ Toni & Anr. Page No. 1 of 17 -2-
1. Brief facts, as stated in the chargesheet are that on 20.01.2012 SI Dhirender Singh received a secret information that two boys namely Appu and Toni, who had snatched a bag on 17.01.2012 from two motorcyclists after firing and throwing red chilly powder on them, would come to meet their associates near Bhalla Factory within one hour. On this information, SI Dhirender Singh lodged DD entry no. 28B, dated 20.01.2012 at PS Sultan Puri and prepared a raiding party along with other police officials. They reached near Kiradi Fathak, where IO requested 45 public persons to join the raiding party, however, all of them refused and left the place without disclosing their whereabouts. Thereafter, the police party reached the said spot, where at the instance of the secret informer, SI Dhirender Singh along with other police staff tried to apprehend the said two boys, upon which the accused Rajesh @ Toni fired a round from katta towards them. They somehow saved them. However, both of them were apprehended by the police party and on formal search, one desi katta, one empty cartridge, one live cartridge and knife were recovered from possession of accused Rajesh @ Toni, who had fired a round towards police party and one knife, one desi katta and one live cartridge were recovered from possession of other accused Rajeev @ Appu.
2. SI Dhirender prepared a rukka and got the present FIR registered through Ct. Yashpal u/s 186/353/307/34 IPC & 25/27 Arms Act.
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3. Initial investigations were taken up. The sketch memo(s) of the weapons recovered from possession of the accused persons were prepared and the same were also seized vide separate pulindas after measuring them. Thereafter, further investigations were handed over to SI Sandeep Kumar, who had reached the spot and prepared the site plan and also arrested the accused persons and recorded their disclosure statements. The accused persons were got medically examined and statement of the witnesses were recorded by the IO u/S. 161 CrPC. On completion of investigation the charge sheet u/S. 86/353/307/34 IPC & 25/27 Arms Act was filed in the Court. Thereafter, complaint u/S. 195 CrPC was also filed in the court of Ld. MM by the concerned ACP.
4. On committal of the case to the Court of Sessions, vide detailed order dated 03.01.2013, a charge(s) u/s 186/353/307/34 IPC against both the accused persons, u/S. 25 Arms Act against accused Rajiv @ Appu and u/S. 25/27 Arms Act against accused Rajesh @ Toni were ordered to be framed. Accordingly, formal charge(s) for the said offence(s) were framed on 20.02.2013 to which they pleaded not guilty and claimed trial.
5. Thereafter, prosecution in support of its case has examined 10 witnesses :
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a) PW1 is HC Yashpal, who had joined the police raiding party along with IO, and has proved the sketch memos of the weapons recovered from possession of accused persons vide memos Ex. PW1/A to Ex. PW1/D and their seizures vide seizure memos Ex. PW1/E to Ex. PW1/H. He has also proved the arrest of accused Rajesh @ Toni vide memo Ex. PW1/K and of accused Rajiv @ Appu vide memo Ex. PW1/L and their personal search vide memos Ex. PW1/M and Ex. PW1/N respectively.
b) PW2 is HC Narender, who had also joined the raiding party, and has also proved the memo(s) mentioned above.
c) PW3 is WHC Rekha, Duty Officer, who had registered the FIR Ex. PW3/A in this case on the basis of rukka sent by SI Dhirender Singh through Ct. Yashpal and also made endorsement Ex. PW3/B on the same.
d) PW4 is ASI Jagdish Singh, who had also joined the police raiding party and proved the memos as proved by PW1.
e) PW5 is HC Govind Singh, MHC(M), who had made relevant entries in the Register no. 19 regarding deposit of five SC No. 57816/16 FIR No. 31/12 PS. Sultan Puri State Vs. Rajesh @ Toni & Anr. Page No. 4 of 17 -5- sealed pulindas by the IO vide Ex. PW6/A, copy of road certificate regarding sending of two sealed pulindas to FSL vide Ex.PW6/B and copy of acknowledgement received from FSL, Rohini as Ex. PW6/C.
f) PW6 is HC Pawan Kumar, who had taken two sealed pulindas from concerned MHC(M) on 22.02.2012 and deposited the same at FSL, Rohini vide RC No. 34/21/12.
g) PW7 is SI Dhirendra, complainant / initial IO in this case who had received the secret information and prepared the police raiding party after recoding DD entry no. 28B Ex.
PW7/A. He has proved the sketch memos of the recovered weapons vide Ex. PW1/A to Ex. PW1/D, their seizures vide seizure memos Ex. PW1/E to Ex. PW1/H and also identified the case property Ex. PX, PX1, PX2 and PZ, PZ1, PZ2 being recovered from possession of the accused persons.
h) PW8 is Dr. Ajay Kumar, who has proved the MLCs of both the accused persons vide Ex. PW8/A and Ex. PW8/B.
i) PW9 is SI Sandeep, 2nd IO of this case to whom further investigations of this case was handed over after registration of case FIR. He has proved the site plan of the spot as Ex.
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j) PW10 is Sh. Jasmeet Singh, IPS, who has proved the complaint filed by him u/S. 195 CrPC as Ex. PW10/A.
6. Statements of both the accused persons were recorded separately with regard to admission of FSL report (Ballistics) dated 28.08.2012 as Ex. PXI and Sanction accorded u/S. 39 Arms Act as Ex. PXII.
7. Thereafter, statement of accused persons u/s 313 Cr.P.C. were recorded separately in which the entire incriminating evidence appearing against them was put to them, in which the defence of both the accused persons was that they had been falsely implicated in this case, in order to crack a connected blind case by the police officials, therefore, they were arrested in present FIR No. 31/12, u/S. 186/353/307/34 IPC & 25/27/54 Arms Act. They also stated that the entire evidence appearing against them was incorrect. They chose to lead evidence in their defence and examined DW1 Ramesh, DW2 Dinesh and DW3 Rajesh in support of their defence.
8. I have heard Sh. Rishi Pal Singh, Ld. Counsel for both the SC No. 57816/16 FIR No. 31/12 PS. Sultan Puri State Vs. Rajesh @ Toni & Anr. Page No. 6 of 17 -7- accused persons and Sh. V. K. Negi. Ld. Addl. PP for the State.
9. The Ld. Addl. PP for the State has argued that prosecution has been able to prove its case u/s 186/353/307/34 IPC & 25/27 Arms Act, as all the police officials who had joined the raiding party and examined in the court have totally supported the prosecution story regarding the time, place and manner of the incident. He has also stated that the police officials were on duty at the time of incident and were discharging their public function, when the accused Rajesh @ Toni fired a shot with desi katta upon them, however, they somehow saved themselves. He has further argued that the accused Rajesh @ Toni had fired the shot with the intention or knowledge and in the circumstances as mentioned in section 307 IPC. He has further argued that recovery of such deadly weapons from possession of accused persons and the daring manner in which accused Rajesh @ Toni fired with katta on the police party clearly indicates that they have no respect for law and needs to be dealt strictly with severe punishment.
10. On the other hand, Ld. Defence Counsel has argued that there are number of material contradictions in the testimonies of the prosecution witnesses which shows that the entire prosecution story is false. He has also argued that the prosecution evidence is not supported by any scientific investigation as neither the finger prints on the said katta / knife were taken nor the empty lead from the fired SC No. 57816/16 FIR No. 31/12 PS. Sultan Puri State Vs. Rajesh @ Toni & Anr. Page No. 7 of 17 -8- cartridge was seized from the spot and the accused persons have been falsely implicated in this case. He has further argued that in fact the accused persons had quarreled with a neighbour on 17/18.01.2012, where after the matter was compromised at PS Sultan Puri, but the accused were still kept in custody from 19.01.2012 to 22.01.2012 illegally by the officials of PS Sultan Puri and were falsely implicated in this case. He has further argued that the testimonies of defence witnesses DW1 to DW3 clearly proves the allegations regarding the false implication of the accused persons. Therefore, he submits that both the accused persons are liable to be acquitted.
11. I have gone through the rival contentions.
12. PW7 SI Dhirendra has deposed as under :
On the date of incident i.e. 20.01.2012, he was posted at PS Sultan Puri and at about 9:30 am, a secret information was received through secret informer which was passed on to senior officers and was recorded vide DD No. 28B Ex. PW7/A. Thereafter, a rading team was organized consisting of HC Jagdish, HC Narender, HC Yaspal, Ct. Karambir, Ct. Nagraj and Ct. Praveen.
Thereafter, all of them left the police station along with the secret informer in two different cars and reached near Kirari Fathak. They were all in civil uniform. He deputed HC Jagdish and Ct. Karambir towards the Eastern side and he along with HC Narender took the position towards the Western side, Ct. Nagraj, Ct. Praveen and Ct. Yashpal towards the Southern side and towards the North side there was a SC No. 57816/16 FIR No. 31/12 PS. Sultan Puri State Vs. Rajesh @ Toni & Anr. Page No. 8 of 17 -9- high wall, hence nobody was deputed there. Thereafter, he along with HC Narender and secret informer went inside the jungle where informer pointed towards two persons who were standing in the jungle as the persons regarding whom information has been received. Thereafter, he gave signal to the remaining party members to surround the area. When they went towards those two persons, on seeing the police party, one person fired towards him. He saved himself while sitting down. HC Narender managed to apprehend one of the person, who had fired bullet upon him. Another person was apprehended by the team of HC Jagdish. The person who was apprehended by HC Narender disclosed his name as Rajesh @ Toni and another person apprehended by HC Jagidish disclosed his name as Rajiv @ Appu.
HC Narender snatched the country made pistol from the hands of Rajesh @ Toni and checked and found to contain one shell of empty cartridge which was fired upon him. On his formal search, one another live cartridge and one knife was also recovered from his possession. Thereafter, they prepared the sketches of the recovered weapons and seized them. HC Jagdish also conducted the formal search of accused Rajiv @ Appu. On his formal search, one country made pistol and live cartridge was recovered. He also prepared the sketch of the country made pistol, one live cartridge and they were seized vide separate pulindas. Thereafter, he prepared a rukka, handed over the same to HC Yashpal for registration of the case with a request for deputing this case to some other officer.
Thereafter, Ct. Yashpal went to the PS at about 3:00 PM and came back with SI Sandeep to whom he handed over the documents i.e. sketch, seizure memos and sealed case property and the relevant DD as investigations were taken up by him. He also identified the country made pistol as Ex. PX, used cartridge as Ex. PX1 and the knife Ex. PZ being recovered from possession of accused Rajiv Kumar @ Appu. He further identified the country made pistol Ex. PY1, used cartridges as Ex. PY2 and the knife Ex. PZ1 being recovered from possession of accused Rajesh @ Toni.
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13. The other police officials i.e. PW1 HC Yashpal, PW2 HC Narender Singh and PW4 ASI Jagdish Singh have corroborated the testimony of PW7 regarding the time, place and the manner of the incident as well as the recovery of kattas / weapons from the respective accused persons as well as the fact that the accused Rajesh @ Toni had fired upon SI Dhirendra, from a country made weapon.
14. PW7 in his crossexamination has stated that when the secret information was received, he was sitting outside DO room and they had left the police station in two different cars, one was Santro and another, he did not remember. Both the vehicles were private vehicles belonging to their staff. He did not record the statement of any staff to whom the private vehicles belonged and he also could not tell the number or colour of those cars. He also stated that they reached at Kirari Fathak at 10:45 AM and did not serve any notice to the passersby to join the investigations and he did not request the signal man present at the railway crossing to join the investigations. He had seen the accused persons from a distance of 70 yards and he had asked the accused persons to surrender and the accused Rajesh @ Toni fired upon them from a distance of 50 yards. He did not counter fire in retaliation. Another accused did not fire on the raiding party. The seal was handed over to HC Narender at the spot itself but he did not record the statement of HC Narender regarding handing over of the seal. From this crossexamination of PW7, it is hard to believe that when the SC No. 57816/16 FIR No. 31/12 PS. Sultan Puri State Vs. Rajesh @ Toni & Anr. Page No. 10 of 17 -11- accused Rajesh @ Toni fired upon them from a distance of 50 yards, yet PW7 and members of police party did not fire in retaliation in order to save them and it is also hard to believe that the other accused also did not fire when being cornered by the police party. The complainant also could not tell the vehicle numbers of the cars in which they travelled to the place of incident. Admittedly, no public witness was also joined in the investigations, though, it is common knowledge that public witnesses are very reluctant these days to join the investigations due to various reasons, as they do not want to depose in the court. Further, the seal as per PW7 was handed over to HC Narender, but he did not record any statement of HC Narender in this regard. This also casts doubt on the prosecution story, as it implies that the seal remained with the complainant therefore, the chances of tempering of the pulindas cannot be ruled out.
15. Similarly, HC Yashpal Singh had stated in his crossexamination that they had gone to the spot by two vehicles, one was Santro and another was Zen, but he could not tell the number of the vehicles, but the cars belonged to their staff. He similarly stated that when accused persons fired upon SI Dhirendra, in retaliation neither he nor any other member fired, which is hard to believe as it is a normal reaction of a person especially the police official to fire in return to save their life, therefore, this version of PW1 and PW7 is not believable taking into account the probabilities. PW1 also stated that no finger prints were SC No. 57816/16 FIR No. 31/12 PS. Sultan Puri State Vs. Rajesh @ Toni & Anr. Page No. 11 of 17 -12- taken by the IO or the FSL team from the pistol recovered from the accused persons. This is a vital flaw in the prosecution case as the said scientific evidence would have clearly revealed that it was the accused persons who had handled / possessed katta / knife without proving anything more. PW1 also stated that IO did not take any gun shot residue (GSR) test of the accused. The same is also vital omission on part of the IO as the GSR test would have revealed that the accused Rajesh @ Toni had actually fired katta as per the prosecution story, as some of the gun shot particles as a residue would have remained in his hand, if he had actually fired upon the police party. This would have also been a vital corroborative piece of evidence to prove the prosecution story.
16. All these facts cummulatively cast doubt on the prosecution story. PW2 HC Narender similarly in his crossexamination stated that they had reached the spot in two vehicles, one Santro and the other was Zen, number of which he could not tell. He also stated that the accused Rajesh fired on the police party from a distance of 70/100 yards and he had only fired once. The empty shell was present in the chamber of the country made pistol. The fired lead could not be recovered. This is a serious flaw on the part of the prosecution as the same would have proved that it was fired from the pistol which was allegedly recovered from possession of the accused Rajesh @ Toni which also casts doubt on the prosecution story as a whole. He also stated that they did not SC No. 57816/16 FIR No. 31/12 PS. Sultan Puri State Vs. Rajesh @ Toni & Anr. Page No. 12 of 17 -13- fire in retaliation as the country made pistol had only one round. This version is also doubtful, as it is hard to believe that from the distance of 70/100 yards, they could see that the accused was having katta and not an automatic pistol which could fire many rounds. Therefore, their non firing in retaliation towards the accused Rajesh @ Toni also casts doubt on the prosecution story. He also states that no finger prints were taken from the spot or from country made pistol. This also as stated in the statement of PW1, casts serious doubt on the prosecution story as no scientific evidence was collected to pin down the accused persons in this case.
17. Further, PW4 ASI Jagdish Singh has also stated in his cross examination that they had left the police station in Santro car and Zen and the five police officials were there in the Zen car which was driven by HC Narender. He in his crossexamination stated that he did not know that if both the accused persons had quarreled on 18/19.01.2012 and in this respect DD Nos. 26A and 53B were recorded. Further the 2nd IO of this case SI Sandeep in his crossexamination has stated that no public person was available at the spot at that time. As already discussed, the public person are very reluctant to join any police investigation for various reasons as they feel shy to appear in the court later on.
18. In the present case, no scientific evidence, whatsoever has SC No. 57816/16 FIR No. 31/12 PS. Sultan Puri State Vs. Rajesh @ Toni & Anr. Page No. 13 of 17 -14- been collected by the prosecution in the shape of finger prints from any of the weapons allegedly recovered from possession of the accused persons nor any gun shot residue test was conducted on the hands of the accused Rajesh @ Toni, who had allegedly fired on SI Dhirendra which could have clearly corroborated the prosecution story nor the empty lead cartridge was seized, which could have also proved that same had been discharged from the katta / pistol which was recovered from possession of the accused Rajesh @ Toni. In the present case, the incident is of the year 2012. At that time, mobile phones were freely available and were possessed by all common people including the police officials. In the present case, the best way for the prosecution to prove the location of crime was to prove the CDRs of all the members of the police party at the relevant time to show their location at the place of the incident which could have clearly proved their presence at the spot and would have duly corroborated the prosecution story regarding the time, place and manner of incident. As already discussed, no scientific investigations whatsoever has been carried out by the IO for the reasons best known to him despite the availability of the scientific evidence in the shape of gun shot residue test, finger prints and evidence that the fired lead was discharged from the weapon, which was found in the possession of accused Rajesh @ Toni.
18. The accused persons have taken the defence that they have been falsely implicated in this case. In this regard, they have also SC No. 57816/16 FIR No. 31/12 PS. Sultan Puri State Vs. Rajesh @ Toni & Anr. Page No. 14 of 17 -15- examined three witnesses especially DW1, their father who has deposed that :
On 17.01.2012 at about 7:30 to 8:00 pm, his sons had quarreled with one neighbour Ranbir as both his sons and Ranbir had taken liquor. After hearing the noise, he and his wife came out from their house and intervened and took their sons inside the house.
On the next day also, they were standing in front of their house. The said Ranbir came towards their house and started shouting and abusing his sons due to which they again started fight. Thereafter Ranbir called at 100 number. Thereafter, police officials came and took his sons to PS Sultanpuri and also asked Ranbir to come there. He apologized on behalf of his sons and asked Ranbir to compromise the matter. Thereafter, on 19.01.2012 Ranbir had compromised the matter in the presence of police officials and they assured him to release his sons within our hour but they were not released. Both his sons were kept in custody from 19.01.2012 to 22.01.2012. When he asked the police officials to release them, they falsely implicated them in this case.
The testimony of DW1 is not believable after he was subjected to crossexamination, as it is not explained, as to why he did not lodge a complaint with the senior police officers regarding lifting of his sons and their false implication by the police officials of PS Sultan Puri, as a simple call at 100 number would have done the job. In any case, if there was any quarrel as stated by him on 18.01.2012 / 19.01.2012 and a call was also made at 100 number, there would have been a relevant DD entry recorded at PS Sultan Puri. However, the same has not been SC No. 57816/16 FIR No. 31/12 PS. Sultan Puri State Vs. Rajesh @ Toni & Anr. Page No. 15 of 17 -16- produced in the defence evidence. Therefore, his testimony is not believable.
19. Similarly, the testimonies of DW2 and DW3, who are the neighbourers of accused persons is also not believable as no DD entry/ number regarding the said quarrel has been proved on record, as if a call was indeed made at 100 number then the same must have been passed on to the local police station by the PCR and same must have been recorded in the general diary register A or B maintained at the concerned police station. If DW1, DW2 and DW3 were truthful, then the said version would have been proved by proving the relevant DD entry of quarrel with the such neighbour named Ranbir. In absence of the same, the defence version is also not believable.
20. From the analysis of the above evidence, it appears that both the prosecution as well as defence are not putting forth the true genesis of the incident before the Court. The probative force of the prosecution evidence as a whole is of uncertain kind and similarly the defence version is also having very weak force not worthy of credence. The truth lies somewhere in between. To convict any of the accused persons in any criminal trial, the probative force of the prosecution evidence as a whole must be almost touching the point of certainty. The accused persons cannot be convicted in a case, where the evidence lead by the prosecution is of uncertain / iffy nature.
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21. In these facts and circumstances, the prosecution evidence as a whole is not trustworthy, therefore, it is not safe to convict the accused persons on such kind of evidence. As a result, the accused persons are acquitted of the charge(s) under Sections U/s. 186/353/307/34 IPC & 25/27 Arms Act by giving them the benefit of doubt. Their previous bail bonds are cancelled. Previous sureties stand discharged.
22. Accused persons are directed to furnish their personal bonds for the sum of Rs.15,000/ each with one surety of like amount each in compliance of Section 437A Cr.P.C. Documents, if any be returned after cancelling the endorsement, if any, if the same are not resubmitted while furnishing bail bonds u/S. 437A CrPC.
23. File on completion be consigned to record room.
Announced in the open Court (Sanjeev Aggarwal)
st
on this 21 day of Dec. 2017 Addl. Sessions Judge02,North
Rohini Courts, Delhi/21.12.2017
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