Delhi District Court
State vs . 1.Dalip Kumar S/O Dayal Chand on 17 August, 2009
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.39/09
FIR No.231/2004
PS-Sangam Vihar
U/s 399/402/34 IPC
State Vs. 1.Dalip Kumar s/o Dayal Chand
2.Salman S/o Irshad
3.Afroz S/o Mushtaq
4.Raja Das s/o Allauddin
2. FIR no.232/04
U/s 25/54/59 Arms Act
State Vs. Dalip @ Montey S/o Dayal Chand
3.FIR No.233/04
U/s 25/54/59 Arms Act.
State Vs. Afroz S/o Mustaq
4. FIR No.234/04
U/s 25/54/59 Arms Act.
State Vs. Salman S/o Irshad
5. FIR No. 235/04
U/s 25/54/59 Arms Act.
State Vs. Raja Dass s/o Alauddin
Challan filed on 03.06.04
Reserved for order on: 10.08.09
Judgment delivered on: 17.08.09
JUDGMENT
By way of this common Judgment I shall decide five cases i.e one main case u/s 399/402/34 IPC vide FIR no.231/04 and four Arms Act cases against accused Dalip Kumar @ Montey vide FIR no.232/04, against accused Afroz vide FIR no.233/04, against accused Salman vide FIR no. 234/04 and against accused Raja Dass vide FIR no.235/04 as the evidence has been recorded common in all the five cases.
2. Accused Dalip Kumar, Salman, Afroz and Raja Dass had been sent up by the police of PS Sangam Vihar to the court of Ld. MM for the commission of offence punishable u/s 399/402/34 IPC and 25 Arms Act. This case was triable by the court of session so after committal proceedings it was received by this court on 04.08.04.
3. Brief facts of the prosecution's case are that on 06.04.04 at about 12.30 p.m SI Balram Singh alognwith Ct.Hemender, Ct.Rattan Singh, Ct. Ajeet and Ct.Janardhan were present at MB Road, Maa Anandmai Marg, T-Point where secret informer met him and informed that five young boy who used to commit dacoity in buses would assemble in Maa Kayamaya Temple at about 1.45 p.m and they will plan to commit dacoity in RTV buses. This information was conveyed to SHO and SI Balram organised a raiding party. AT about 12.55 p.m five boys got down from RTV Bus and entered in the Temple. HC Ramavtar was deputed to hear their conversation and after hearing the conversation he gave prefixed signal on which raid was conducted and two boys were apprehended by them easily and three boys took out knives and tried to give blow. One of the boy whose name came to know later on as Rahul having knife in his hand succeeded to escape from there and two boys Dalip Kumar and Salman were apprehended. Other boys Afroz and Rajadas were apprehended and on their search one buttondar knife each were recovered from their wearing pants. Thereafter IO prepared the ruqua on the basis of which the present case was registered and accused persons were arrested and challaned to the court after completing the investigation.
4. All the accused persons were charged u/s 399/402/34 IPC & 25 Arms Act on 7.8.04 to which all the accused pleaded not guilty and claimed trial.
5. The prosecution in support of its case in all has examined 14 witnesses. Thereafter the prosecution evidence was closed.
6. 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.
7. I have heard the Ld.counsel for the accused persons as well as Ld.APP for the State and perused the testimonies of the Pws and exhibited documents carefully.
8. 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 HC Ramavtar is the member of raiding party and he has deposed that on 6.4.04 he alognwith SI Balram, Ct. Janardhan, Ct. Heminder, Ct. Naresh, Ct. Ajit and Ct. Rattan Singh were present at MB Road, T Point when SI Balram received secret information at 12.30 p.m about five boys involved in robberies who will plan committing of robbery while sitting in Kayamaya Mandir and they might be having weapons with them. SHO was informed and raiding party was organised. He was directed to hear the conversation . AT about 12.55 p.m, 5 boys got down from RTV bus and went inside the mandir. He was already inside the temple and he heard them planning and saying that they have to rob bus of one Ravinder Yadav and they were planning to rob the cash of conductor and driver and they were saying that they will stab whosoever will resist the robbery. After hearing this he came out and gave the prefixed signal and then raid was conducted in which four boys were nabbed. He overpowered accused Dalip with the help of Ct.Janardhan and he was having knife. He further deposed that accused Raja Das and Salman were also caught and they were also having knife. Accused Afroz was also caught with knife. He identified the accused persons. He proved arrest memo and personal search memos Ex.PW1/A to H. It is further deposed that he prepared the sketch of knife recovered from accused Dalip which is Ex.PW3/B and seized vide memo Ex.PW3/A. He prepared rukka Ex.PW1/A and sent through Ct.Janardhan for registration of FIR. SI Madan Lal prepared the site plan Ex.PW5/A. He identified the knife Ex.P1. He was not cross examined.
9. PW2 W/ASI Sarita Rathi has deposed that on 6.4.04 she was posted as duty officer and she recorded FIR no.231/04 copy of which is Ex.PW2/A. She was not cross examined.
10. PW3 Ct.Janardhan is the witness of raiding party and he deposed the version of PW1 regarding receiving of secret information, organising of raiding party, reaching at Kayamaya Mandir, getting down of five boys from RTV and entering inside the temple, hearing of conversation by HC Ramavtar, conducting of raid and apprehension of those boys. He further stated that he overpowered accused Dalip with the help of SI Ramavtar. He further stated that accused Dalip was having knife in his hand which was seized vide memo Ex.PW3/A, sketch of the knife was prepared which is Ex.PW3/B. He further stated that accused Dalip was arrested vide memo Ex.PW3/C and his personal search was conducted vide memo Ex.PW3/D. He further stated that he got the case registered by going to PS. He identified the knife Ex.P1. In Cross examination he has stated that the names of the persons who refused to join the raiding party were asked by th IO but they refused to give the same. No notice was given to them by the IO. Pujari of the temple was not asked to join the raiding party. He denied the suggestion that all the accused have been falsely implicated in this case. He further denied the suggestion that SI Balram demanded a sum of Rs.1000/- per bus to allow the plying of bus and as the accused persons refused to give this money, therefore they were falsely implicated in the present case. All the members of raiding team was carrying danda and nobody was carrying any arm and ammunition. All the members of raiding party and accused have gone to PS in RTV called from PS. All the accused have taken out knives on seeing the police party. All the accused persons started running on seeing the police and they had run upto a distance of 15 meter.
11. PW4 Ct.Haminder Kumar has deposed that on 6.6.04 he joined the raiding party formed by SI Balram Singh upon information that certain boys were planning to commit dacoity. He apprehended accused Salman with the help of Ct.Rattan who was found in possession of knife. He got recorded his statement Ex.PW4/A. He proved recovery memo Ex.PW4/B, sketch of knife Ex.PW4/C. He proved arrest memo Ex.PW4/E and personal search memo Ex.PW4/D of accused Salman. He identified the knife Ex.P2. In cross examination he has deposed that they did not talk to each other when reached at the spot. Accused arrived at 1.05 p.m. 40-50 public persons were present in the temple for offering prayer. None of them were asked to join the raiding party. One Pujari and Assistant Pujari were asked to join the proceedings. SI Balram and HC Ramavtar were armed with pistol and remaining were in civil without weapon. He reached back to the PS at about 1.10 p.m and other members reached at 3 p.m.
12. PW5 Retired ASI Madan Lal has deposed that he reached in Mahamaya temple on 6.6.04 on receiving investigation of FIR no.232/04 and he received all the documents. Thereafter he prepared the site plan Ex.PW5/A and he arrested accused Dalip and conducted his personal search. He was not cross examined.
13. PW6 Ct.Naresh is also the member of raiding party and he deposed the version of PW1 & 3 regarding receiving of secret information, organising of raiding party, reaching at Kayamaya Mandir, getting down of five boys from from RTV and entering inside the temple, hearing of conversation by HC Ramavtar, conducting of raid and apprehension of those boys. He further stated that he overpowered accused Rajadass after a chase and from his possession one knife was recovered from his pocket. He proved recovery memo of Arms Ex. PW6/A, sketch of knife Ex.PW6/B, arrest of accused vide memo Ex.PW6/C and personal search memo Ex.PW6/D. He identified the knife Ex.P3. In cross examination he has stated that they left the PS between 11/12 a.m in the morning and secret informer met them at 12.30 p.m. They reached on foot in Kayamaya temple. Except HC Ramavtar all the members were in police uniform. He was not carrying any Arm. They reached in the temple at 12.15 p.m again said at 1.05 p.m. Nearby shopkeepers were asked to join the investigation. NO notice was served to them. He does not know how the accused reached at the spot. He did not see the accused entering the temple. He denied the suggestion put by the Ld. defence counsel that accused persons were falsely implicated as they refused to given Rs.1000/- to SI Balram for plying their buses. He admitted that accused persons also ply RTV on fair basis.
14. PW7 HC Lalu Ram has deposed that he brought the FIR copies of FIR no.232, 233, 234, 235 and proved the copies of the same Ex.PW7/A, B, C and D. He was not cross examined.
15. PW8 SI Atul Sood has deposed that on 6.4.04, on receipt of DD no.40A he reached Kayamaya Mandir where SI Balram was present and Ct.Naresh produced accused Rajadass alongwith a buttondar knife. HE deposed the version of PW6 regarding preparing the sketch, recovery memo, arrest memo and personal search of accused Raja Dass. He further stated that he prepared rukka Ex.PW8/A and got the FIR lodged. He prepared site plan Ex.PW8/B. He identified the knife Ex.P3. In cross examination he deposed that all the members of the raiding party were carrying arms and ammunition. He sent rukka at about 5.05 p.m. At about 7 p.m they left the spot for PS alongwith accused persons. All the members of the raiding party were having their own two wheeler scooters with them. SHO had come at the spot in his gypsy. SI Balram was doing the writing work under street light.
16. PW9 SI Ram Kishan has deposed that on 6.4.04 on receipt of DD no. 14A he reached at the spot where Ct.Ajit produced accused Afroz to him with buttondar knife. He prepared sketch Ex.PW9/A and seized the same vide memo Ex.PW9/B. He further stated that accused Afroz was arrested vide memo Ex.PW9/C and his personal search was conducted vide memo Ex.PW9/D. He prepared rukka Ex.PW9/E and got the FIR lodged through Ct.Fateh Singh. He prepared site plan Ex.PW9/F. He identified the knife Ex.PW9/1. In cross examination he has stated that about 8 to 10 police officials were present at the spot. Kaya Mandir is not a temple but it is a hospital. He sent rukka at 4.45 p.m. He left the spot at about 8.30 p.m He denied the suggestion that all the accused persons were lifted from their houses and falsely implicated in this case.
17. PW10 Ct.Ajit is also the member of raiding party and he deposed the version of PW1, 3 6 regarding receiving of secret information, organising of raiding party, reaching at Kayamaya Mandir, getting down of five boys from from RTV and entering inside the temple, hearing of conversation by HC Ramavtar, conducting of raid and apprehension of those boys. He overpowered accused Afroz. He deposed the version of PW9 regarding seizure, sketch, arrest and personal search of accused Afroz. He identified knife Ex.PW9/1. In cross examination he has deposed that the distance between the place where the information was received and the spot is two and half km. Only SI Balram was having a pistol while other three remaining police officials were having lathis. Pujari was not present in the Mandir at that time. There was no devotees present at the temple. The accused were not carrying any weapons with them. The accused persons had not fired at the police party nor they tried to assault at the police party. The police officer went in TSR alongwith accused to the PS.
18. PW11 Ct.Fateh Singh has deposed that on 6.4.04 he alognwith SI Ram Kishan reached at the spot on receipt of DD no.14A where Ct.Ajit produced accused Afroz with one knife and he was given rukka on the basis of which he got the case registered. He deposed the version of PW9 regarding recovery of knife, its sketch, arrest and personal search of accused in Arms Act Case. He identified the knife. In cross examination he has stated that he was handed over rukka at about 5.30 p.m and he came back at 6.30 p.m. He was not carrying any arms and ammunition. All the members of the raiding party were carrying pistol and revolvers. The secret informer met him at the spot. He did not talk to him. There is search light available near the partri. The writing work was done inside the kayamaya mandir on the bench.
19. PW12 ASI Satish Chand has deposed that he reached at the spot on receipt of DD no.14A Ex.PW12/A where he recorded the statement of Ct.Hamender Ex.PW4/A and he produced accused Salman with knife. He deposed the version of PW4 regarding seizure memo of knife Ex.PW4/B, sketch Ex.PW4/C. He prepared rukka Ex.PW12/A and got the case registered through Ct.Haminder. He prepared the site plan Ex.PW12/C. He further stated that he arrested accused Salman and conducted his personal search. He tendered the notification in evidence Ex.PW12/D. IN cross examination he admitted that no public persons was joined in the investigation vol. no public person was available there. 7-8 police officials were present in the temple and they were armed with danda and pistol but he cannot tell as to who was carrying what. He denied the suggestion that no knife was recovered from accused Salman.
20. PW13 SI Balram is the IO of this case and he has deposed the version of the raiding party members PW1,3,6 & 10 regarding receiving of secret information, organising of raiding party, reaching at Kayamaya Mandir, getting down of five boys from RTV and entering inside the temple, hearing of conversation by HC Ramavtar, conducting of raid and apprehension of those boys. He has further deposed the version of raiding party members regarding recovery of weapon of offence from each accused. He prepared rukka Ex.PW13/A and got the case registered through Ct. Rattan Singh. He prepared the site plan Ex.PW13/B. He proved the arrest memos of accused persons Ex.PW13/A to D and their personal search memos Ex.PW13/E to H. In cross examination he has stated that he has done his writing work after sitting in a park because the said temple was situated in the boundary of the park. He did not ask the public persons who were coming to and going from the temple to join the investigation. He left the spot at 5 p.m. The investigation team left the place altogether. His remaining cross examination is just to create contradictions in his testimony.
21. PW14 Ct. Rattan Singh is also the member of raiding party and he has also deposed about going to the place of incident but he could not support the case properly and hence declared hostile by the Ld.APP for the State and cross examined and then he stated about going of HC Ramavtar to hearing the conversation and then giving prefixed signal and then apprehension of accused persons. In cross examination he has stated that he did not apprehend any of the accused. NO enquiry was made by HC Ramavtar in his presence from 5th accused who succeeded to run away from the temple. He further stated that it is correct that four boys were apprehended is his true statement but due to lapse of time before making the cross examination by the Ld.APP he could not tell the truth before this court. It is correct that HC Ramavtar has not disclosed the conversation going on between the accused persons.
22. In overall testimony of the witnesses PW1 to 14 it has come out that none of the witness except Pw1 HC Ramavtar has heard the conversation of the accused persons who were allegedly sitting in the premises of Kayamaya Temple to plan for committing decoity. Only in the testimony of Pw1 it has come that he has heard that them planning and saying that they have to rob bus of one Ravinder Yadav and they were planning to rob the cash of conductor and driver and they were saying that they will stab whosoever will resist the robbery but none of the other witnesses have stated as to what was told to them by Pw1 after hearing the conversation. Only PW13 SI Balram has stated that HC Ramavtar told him that they were making planning to commit weekly hafta vasuly (weekly demand) and if any of the driver or conductor refuses, they will stab them. So, PW13 IO SI Balram has not stated that PW1 has told him that they were planning to rob the bus of one Ravinder. Prosecution has also not examined any Ravinder in this case to ascertain as to whether he is the owner/driver of any bus or not. In this case IO Pw13 has stated that he has deposited the case property in the Malkhana but on perusal of the file it has been revealed that MHCM has not been examined in this case to prove the entries regarding depositing of case property in the malkhana. I have also perused the arrest memo of the accused persons Ex.Pw1/A to D and found that accused Rajadass, Dalip, Afroz and Salman were arrested from Kayamaya Mandir premises and the time of arrest is 1.05 p.m. All the arrest memos shows that different pen was used to write the date and time of arrest as well as name, address and telephone number to whom the information regarding arrest was given. It is not digestible that while preparing a document, two columns at the middle is written with different pen and the remaining columns of all the memos are written with same pen. In this case some of the prosecution witnesses have stated that all the members were in police uniform except HC Ramavtar but some have stated that police officials were not in uniform.PW8 has stated that SI Balram was doing the writing work under the street light but SI Balram PW13 has stated that he left the spot at 5 p.m. The date of incident is 6.4.04 i.e. the month of April. During the month of April the Sun sets at about 6.30 or 7 p.m. So, there was no need for any street light at 5 p.m. PW8 has further stated that all the members were having two wheelers with them. But other Pws have stated that the members of raiding party were on foot. It is stated by PW9 that Kaya Mandir is not a temple but a hospital. PW4 has stated that many devotees were offering prayer at that time and one Pujari and assistant was also with him at that time. Even PW10 Ct. Ajit has stated in cross examination that accused were not having weapon at that time and no pujari or devotee was present. PW11 Ct.Fateh Singh has stated that secret informer met him at the spot but other PWS have stated that the secret informer had gone after pointing out the accused persons. The accused were arrested on 6.4.04 but PW3 Ct.Janardhan and PW4 Ct.Haminder have deposed that they joined the raiding party on 6.6.04.
23. 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 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. 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 Pw13 SI Balram and rukka Ex. Pw13/A, the raiding party apprehended four accused persons on the indication given by Pw1 HC Ramavtar to raiding party. But none of the prosecution witnesses has stated as to what the accused persons were talking and whispering to each other. However in examination chief Pw1 HC Ramavtar has stated that he has heard the conversation of accused persons that they have to rob bus of one Ravinder Yadav and they were planning to rob the cash of conductor and driver and they were saying that they will stab whosoever will resist the robbery. But this version has not been corroborated by any other witness who were also members of the raiding party nor Pw1 has 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 decoity 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 is raid is 1 p.m which is afternoon time and if IO has made proper efforts he may have joined public witness as there were many devotees as well as pujari present at the spot. 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".
24. 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 decoity 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 possibility of committing decoity 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 decoity. 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 decoity or were planning to do so. So, the prosecution has not been able to prove the case against the accused persons u/s 399/402/34 IPC.
25. It has been submitted by the ld.defence counsel that at the time of alleged recovery weapon of offence from accused Dalip, Salman, Afroz and Rajadass no person from the public has been associated. So, in this regard as per the version of prosecution accused persons were arrested at about 1.00 p.m and these are not the odd hours and place of apprehension of the accused is Kayamaya Mandir where devotees and pujari might be present. However some of the officials have stated that some persons were asked to join the investigation but they refused and no one was asked at the time of recovery of knives from the accused persons. However, 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. However the spot is situated near to the residential colony. No doubt that there are residential houses near to that place and at that time some locality persons might be available there. Even as per the version of PWS, devotees and pujari were present at the spot. So, non-joining the public persons creates doubt in the prosecution case. So, it seems that no recovery has been effect from accused Dalip Kumar@Montey, Afroz, Salman and Rajadass FIR no.232/04, 233/04, 234/04 and 235/04 respectively u/s 25 Arms Act 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 buttondar knife from accused Dalip Kumar@Montey, Afroz, Salman and Rajadass. In view of my above discussions I am of the considered view that prosecution has not been able to prove its case u/s 25 Arms Act against above accused persons.
26. In view of my above discussions, I am of the considered view that prosecution has not been able to prove its case u/s 399/402/34 IPC against all the four accused persons and as such all the four accused persons Dalip Kumar @ Montey, Afroz, Salman and Rajadass are acquitted of the said charges vide FIR no.231/04. Prosecution has also not been able to prove its case against above mentioned accused Dalip Kumar @Montey, Afroz, Salman and Rajadass for the recovery of buttondar knives vide FIR no.232/04, 233/04, 234/04 and 235/04 respectively and as such all the accused persons Dalip Kumar @ Montey, Afroz, Salman and Rajadass vide FIR no.232/04, 233/04, 234/04 and 235/04 are also acquitted of the said charges u/s 25 Arms Act. So, all the accused persons Dalip Kumar @ Montey, Afroz, Salman and Rajadas are acquitted u/s 399/402/34 IPC and 25 Arms Act. All the accused persons are on bail. So, their bail bonds are cancelled and sureties are discharged. File be consigned to record room. ANNOUNCED IN THE OPEN COURT TODAY DATED 17.08.09 (SURESH CHAND RAJAN) ADDL.SESSIONS JUDGE Fast Track Court New Delhi and South East District NEW DELHI