Delhi District Court
State vs . Rajan @ Rahul And Ors. on 24 July, 2018
FIR No.551/07
State Vs. Rajan @ Rahul and ors.
Police Station : Rohini
IN THE COURT OF SHRI DEEPAK GARG:ADDL. SESSIONS JUDGE
II (NORTHWEST): ROHINI COURTS: DELHI
Sessions Case No.51866/16
CNR no. DLNW010001882010
State
Vs
1. Rajan @ Rahul
S/o Sh. Jed Bahadur
R/o. H.No. J1475, Jahangir Puri, Delhi
2. Vikram @ Vikky
S/o Sh. Jagdish
R/o. H.No. M281, Mangol Puri,
Delhi
3. Budh Ram
S/o Sh. Subh Chand
R/o. H.No. M281, Mangol Puri,
Delhi
FIR No. : 551/07
Police Station : Rohini
Under Section : 186/353/307/34 IPC
and u/s 25/27 Arms Act
Date of Institution in Sessions Court : 03.07.2015
Date when judgment reserved : 09.07.2018
(after seeking clarification)
Date when judgment pronounced : 24.07.2018
Page No. 1 of 18
FIR No.551/07
State Vs. Rajan @ Rahul and ors.
Police Station : Rohini
JUDGMENT
1. This is the case under section 186/353/307/34 IPC of Indian Penal Code (IPC) and under section 25/27 Arms Act.
2. The case of the prosecution in brief is that on 09.06.2007 police received secret information that the persons who used to commit snatching and involved in some other incidents in the area of Rohini as well as the other places would go today towards Sector 2425 Rohini from the side of Mangol Puri passing through the Lal Quarter Area adjoining the Ganda Nala area and these persons would be having illegal arms and if a raid is conducted, those persons could be apprehended. At this, SI Balbir Singh constituted a raiding party consisting of himself, HC Baljeet, HC Rajesh, Ct. Sunil Kumar, Ct. Mukesh and Ct. Ram Kishan along with secret informer reached near Lal Quarter and installed barricades for the purpose of checking out the vehicles. At about 11.30 am, one motorcycle bearing no. DL4SAW1164 make CT100 black colour came from the side of Mangol Puri and was going towards Sector 2425, Rohini. The secret informer pointed out towards that motorcycle and told that the three persons riding on the motorcycle are the ones about whom he had told. SI Balbir Singh signaled the motorcyclist to stop but Page No. 2 of 18 FIR No.551/07 State Vs. Rajan @ Rahul and ors.
Police Station : Rohini the motorcyclist took turn to flee and in that process, it skidded away and the motorcycle, fell down and all the said three boys who were riding the said motorcycle took to heels towards the side of Mangol Puri. When the police party gave them a chase, the boy who was sitting in the middle exhorted "Rajan goli chalaao, nahi to pakde jayenge". The accused Rajan then took out a katta and fired aiming at the police party, however, luckily it missed and when he tried to get it loaded again, in the meantime, he was overpowered. When police officials tried to overpower other person whose name later on revealed as Vikram @ Vicky, he took out a knife and when he tried to use it, he was overpowered. Third person whose name later on revealed as Budh Ram was also overpowered. One country made pistol alongwith one live cartridge was recovered from accused Rajan and one empty cartridge was also recovered from the spot. The said weapons were seized and sketches of country made pistol, cartridges and knife were prepared. Motor cycle was also seized. Rukka was prepared and FIR was got registered. Accused were arrested. Investigation was carried out. On completion of the investigation, chargesheet was filed in the Court.
3. On compliance of Section 207 Cr.P.C, the chargesheet was committed to this Court by the Court of Ld. MM.
Page No. 3 of 18 FIR No.551/07State Vs. Rajan @ Rahul and ors.
Police Station : Rohini
4. During the trial, the accused Budh Ram absconded and he was declared a Proclaimed Offender on 12/5/2014.
5. Charge under Sections 186/353/307 IPC was framed against accused Vikram and Rajan and additional charge u/s 25/27/54/59 Arms act was framed against accused Rajan @ Rahul, additional charges u/s 25/54/59 Arms act was framed against accused Vikram by my Ld. Predecessor vide order dated 28/8/2015, to which they pleaded not guilty and claimed trial.
6. On 11/7/2016, a kalandara under section 41.1 (c) CrPC was filed and accused Budh Ram was produced by the police official and he was taken into judicial custody and this trial started qua him. Charge under Sections 186/353/307 IPC and 174 (A) IPC was framed against accused Budhram by my Ld. Predecessor vide order dated 23/8/2016 respectively, to which he pleaded not guilty and claimed trial.
7. In order to prove its case, the prosecution has examined in total 9 witnesses.
POLICE WITNESSES
8. PW2 ASI Dharam Pal Singh is the Duty Officer, who proved the copy of handwritten FIR and computer generated FIR Page No. 4 of 18 FIR No.551/07 State Vs. Rajan @ Rahul and ors.
Police Station : Rohini and endorsement on rukka as Ex.PW2/A and ExPW2/B respectively.
9. PW5 SI Ram Singh has deposed that on 09.06.2007, he reached at the spot i.e. on the road from Mangol Puri to Rithala near DDA Flats towards Vijay Vihar where SI Balbir Singh alongwith the staff had already apprehended the accused persons namely Rajan, Vicky and Budh Ram. He made inquiries from SI Balbir and prepared the site plan at the instance of SI Balbir. He proved the same as Ex.PW5/A. He proved the arrest memo of accused persons as Ex.PW1/G, Ex.PW1/F and Ex.PW1/H. After reaching at PS, I deposited the case property in malkhana. On the next day, the accused persons were produced before the court and all the accused persons were sent to JC. He got sent the case property to FSL through Ct. Mukesh. He obtained the sanction u/s 39 Arms Act against the accused Rajan. He proved the request letter and complaint u/s 195 CrPC as Ex.PW5/B and ExPW5/C respectively.
10. PW8 Insp. Balbir Singh, PW1 Ct. Sunil Kumar, PW3 Ct. Ram Kishan, PW4 HC Rajesh Kumar and PW9 SI Baljeet Singh all are members of raiding party and deposed more or less on the same lines.
Page No. 5 of 18 FIR No.551/07State Vs. Rajan @ Rahul and ors.
Police Station : Rohini
11. PW8 Insp. Balbir Singh is the IO of the case. He has deposed that on 09.06.2007, Ct. Sunil Kumar alongwith one secret informer came to his office and apprised the secret information about the persons who used to commit snatching and involved in some other incidents in the area of Rohini as well as the other places and today the said persons would go towards Sector2425 Rohini from the side of Mangol Puri passing through the Lal Quarter Area adjoining the Ganda Nala area and these persons would be having illegal arms. If a raid is conducted, those persons could be apprehended. He interrogated the secret informer and thereafter apprised the facts to the SHO Rohini who told him to take action accordingly into the matter. At this, he constituted a raiding party including himself, HC Baljeet, HC Rajesh, Ct. Sunil Kumar, Ct. Mukesh and Ct. Ram Kishan alongwith the secret informer and reached at Lal Quarter Road. They installed barricades for the purpose of checking out the vehicles. At about 11.30 am, one motorcycle came from the side of Mangol Puri and it was going towards Sector 2425, Rohini and on the pointing of secret informer he signaled the motorcyclist to stop. The motorcyclist took turn to flee and in that process, it skidded away and all the said three boys who were riding the said motorcycle took to heels towards the side of Mangol Puri. When they also gave them a chase, the boy who was sitting in the middle exhorted "Rajan goli chalaao, nahi to Page No. 6 of 18 FIR No.551/07 State Vs. Rajan @ Rahul and ors.
Police Station : Rohini pakde jayenge". The accused Rajan took out a katta and fired aiming at the police party, however, luckily it missed. Thereafter all the accused persons were apprehended. He proved the sketch and seizure memo of pistol and live cartridges and sketch and seizure memo of knife as ExPW1/A to ExPW1/D. He also proved seizure memo of motor cycle as ExPW1/E. He proved rukka ExPW8/A. The case property has been identified by these witnesses.
12. PW7 Sh. B.K. Singh, Addl. Commissioner has accorded sanction u/s 39 of Arms Act against accused Rajan @ Rahul. He proved the sanction order as ExPW7/A. SCIENTIFIC EVIDENCE
13. PW6 Sh. K.C. Varshney, Dy. DirectorcumIncharge, RFSL, GNCT of Delhi had analysed the parcel containing country made pistol of .315 inch bore, one cartridge of 8 mm/.315 inch and one cartridge case of 8 mm/.315 inch were examined and proved report ExPW6/A. STATEMENT OF ACCUSED
14. After completing the prosecution evidence, statement of the Page No. 7 of 18 FIR No.551/07 State Vs. Rajan @ Rahul and ors.
Police Station : Rohini accused persons was recorded under Section 313 Code of Criminal Procedure, in which all the incriminatory facts and circumstances appearing in evidence was put to them, which have been denied by him in toto. The accused stated that they are innocent and have been falsely implicated in this case. The accused persons have not examined any witness in their defence.
ARGUMENTS OF BOTH SIDES
15. I have heard the Ld. Addl. PP and Ld. Counsel for the accused and have perused the material available on record.
16. Ld.Addl. PP for the State has submitted that the deposition of prosecution witnesses have more or less remained unrebutted with respect to the search and seizure proceedings and his contention therefore is that the prosecution has been able to prove its case beyond reasonable doubt.
17. On the other hand, Ld. Defence counsel has contended that there are a number of flaws in the case of the prosecution which make the case highly doubtful. It is pointed out that no independent witness has been joined by the investigating agency to give credibility to its proceedings and further there are a number of contradictions in the statement of prosecution Page No. 8 of 18 FIR No.551/07 State Vs. Rajan @ Rahul and ors.
Police Station : Rohini witnesses which make it unlikely that the proceeding happened in the way as narrated by the prosecution witnesses.
18. I have carefully considered the submissions made by Ld. Counsel from both the sides and have perused the entire record carefully.
19. The first thing to be taken notice of, in the present case is that there is no independent witness produced by the prosecution in support of its version of the manner of apprehension of accused persons. Despite the fact that all the accused persons namely, Rajan, Vikram and Budhram are shown to have been apprehended at about 11:30 a.m. from opposite DDA flats, Lal Quarters, near Vijay Vihar, Rohini, Delhi, the raiding party was unable to join even one public witness in its proceedings. It appears that the investigating agency did not make any sincere effort to join any public witness in the said proceeding. The cross examination of PW9 Insp. Balbir Singh makes the said fact very clear. In his cross examination, he admitted that neither any govt. officer nor any public person were called to join the investigation. He further admitted that no public person from the nearby flats or the owners of the flats were called to join the investigation. IO has stated that only passersby were asked to join the investigaton but none of them Page No. 9 of 18 FIR No.551/07 State Vs. Rajan @ Rahul and ors.
Police Station : Rohini joined. It is relevant here to state that he did not give any legal notice to those persons who refused to join the investigation and even their names were not noted down by him. It is all the more relevant specially in view of the testimony of PW3 Ct.Ram Kishan who admitted in his cross examination that the barricade was erected near a police booth but admittedly no policeman who was on duty in the said police booth, who could be independent witness in this case, was involved in the investigation of the present case which could have given authenticity to the version of the investigating agency. In a case titled as Ritesh Chakarvarty vs. State of Madhya Pradesh 2006 (3) JCC (Narcotics) 150, the Hon'ble Supreme Court has deprecated the practice of the investigating officials in not enquiring the names of the public persons who failed to join the proceedings on the request of the police officials . In two other judgments pronounced in the cases titled as Anup Joshi vs. State 1992 (2) CC cases 314 and Roop Chand vs. State of Haryana 1991 (1) CLR 69, it has been observed by Hon'ble High Court that failure to proceed against the public person who refused to join the investigation, is suggestive of the fact that the explanation for non joining of witnesses from the public is an after thought and is not worthy of credence. In the absence of any satisfactory and reliable reason forthcoming from the prosecution as to why the public persons were not included in Page No. 10 of 18 FIR No.551/07 State Vs. Rajan @ Rahul and ors.
Police Station : Rohini the proceeding even after the apprehension of the accused persons, the case of the prosecute has become highly doubtful.
20. Now, in the absence of any independent witnesses to be alleged search and seizure proceedings, it is to be examined whether the accused can be held guilty only on the basis of the deposition of the police officials. No doubt as contented by Ld. Addl. PP for the State , the testimony of the police officials cannot be treated with suspicion only because no public witnesses were joined in the investigation. As pointed out by Ld. Addl. PP, ordinarily the public at large shows their disinclination to come forward to become witnesses and even in the absence of independent witnesses, the court can, on the sole testimony of police officials believed the prosecution case to be true. However, Hon'ble Apex Court has also made it clear that if a court has any good reason to suspect the truthfulness of the prosecution witnesses, the court can certainly take into account the fact that no other independent person was present at the time of recovery and that therefore an accused cannot be held guilty only on the basis of such evidence produced by the prosecution. In the present case, there are a number of contradictions in the statement of prosecution witnesses, which go to the root of the matter and make the case of the prosecution highly doubtful to have taken place in the manner as narrated in the charge sheet.
Page No. 11 of 18 FIR No.551/07State Vs. Rajan @ Rahul and ors.
Police Station : Rohini
21. There is contradiction in the statement of prosecution witnesses about the time of receiving the secret information. Ct. Sunil Kumar (PW1), to whom, as per the case of prosecution, the secret informer had contacted in the PS has deposed in the court that the secret informer had come to him in the PS at about 10:00 a.m. whereas PW4 HC Rajesh Kumar has deposed in his cross examination by Ld. Counsel for accused Vikram and Budhram that the secret information had come at about 8:00 a.m. DD no. 5 ExPW8/DA dated 9/6/2017 detailing about the information given by the secret informer was recorded at about 10:40 a.m. when the police party allegedly departed from the PS. There is nothing on record why the secret information received at the PS was not recorded immediately or within reasonable period of the receiving of the same.
22. There is also contradiction in the statement of prosecution witnesses about the fact whether the public witnesses were requested or not to join the proceedings. While PW3 Ct. Ram Kishan has deposed in his cross examination that no public person was requested to join the proceeding whereas PW8 Insp. Balbir Singh has deposed that after reaching the spot he requested passersby to join the proceedings but none of them showed any interest and left the spot without disclosing their Page No. 12 of 18 FIR No.551/07 State Vs. Rajan @ Rahul and ors.
Police Station : Rohini identity.
23. There is also confusion in the witnesses whether they signed particular documents or not. PW3 Ct. Ram Kishan admitted in cross examination that he had signed the seizure memo of the motor cycle on which the accused had come at the spot whereas actually the seizure memo of the motor cycle ExPW1/E does not bear his signature. Further this witness also failed to identify in court one of the accused namely, Budhram. He was cross examined by Ld. Addl. PP for the State on the point of identity of accused Budhram and in the cross examination by the State while his attention was drawn towards the accused Budh Ram, he readily identified him. No reason is forthcoming as to how he was readily able to identify accused Budh Ram on pointed out by Ld. Addl. P P for the State, when he could not identify him earlier.
24. The members of the police party are also not clear whether they were carrying arms or not while carrying out proceeding in question. PW3 Ct. Ram Kishan in his cross examination has deposed that he did not remember whether the police party was carrying arms or not whereas PW4 HC Rajesh Kumar in his cross examination has deposed that some were carrying arms but he did not know their names.
Page No. 13 of 18 FIR No.551/07State Vs. Rajan @ Rahul and ors.
Police Station : Rohini
25. As far as the allegations against accused Rajan @ Rahul is concerned, according to the case of the prosecution, he had fired at the police party by a countrymade pistol. Apparently, in case if any incident of firing or waiving of knife (by the coaccused) as claimed by prosecution had taken place in the area, I am sure that there would have been lot of commotion and large number of public persons would have gathered, which is not the case of the prosecution. Here it may be observed that with the advancement of technology, most of the mobile phones have facility of camera and it was open for the police officials to have taken photographs or have recorded the entire scene of crime in order to lend credence to their oral testimonies, which has not been done and it raises doubt on the story put forth by the prosecution. Even in the site plan ExPW5/A there are no indication of the place where they were going and any indication of the status of the immediate surrounding areas.
26. Admittedly, no finger prints were lifted from the countrymade pistol allegedly recovered from accused Rajan @ Rahul and a knife allegedly recovered from Vikram @ Vicky. No handkerchief or glove was used while seizing the said countrymade pistol from accused Rajan @ Rahul and there is nothing on record that any effort was made to lift the finger Page No. 14 of 18 FIR No.551/07 State Vs. Rajan @ Rahul and ors.
Police Station : Rohini print of the accused persons from the said weapons.
27. It is pertinent here to state that during the trial of this case in the year 2017, it came to the notice of this court that the complaint u/s 195 CrPC was not on record. The Ahlmads of the court of Ld. MM was called but he stated that he could not find the complaint u/s 195 CrPC. The question arose whether the complaint u/s 195 CrPC was ever filed or not by the complainant or by the investigating agency in the court at any point of time. Notice was also issued to the SHO PS South Rohini for assistance in this regard and after this exercise by this court, complaint u/s 195 CrPC under the signature of the SHO PS North Rohini was filed in the court of Ld. MM03, NW, Rohini, Delhi who sent the same to this court and it was received by this court.
28. The incident in the present case is dated 9/6/2007. A complaint u/s 195 CrPC should have been filed by the complainant before the court of Ld. MM concerned around that period. However, in the present case, it appears it did not happen like that and the complaint u/s 195 CrPC was eventually filed before the court of Ld. MM in the year 2017 i.e. after about 10 years of the incident. Ld. defence counsel has rightly pointed out that there is long delay of ten years in filing the complaint u/s 195 CrPC and the said delay has gone unexplained and the Page No. 15 of 18 FIR No.551/07 State Vs. Rajan @ Rahul and ors.
Police Station : Rohini same is fatal to the case of prosecution.
29. It has been held by Hon'ble High Court of Delhi in Gurinder Singh vs. State 63 (1996) DLT 104 that for a Court to take cognizance of an offence punishable u/s 186 IPC, the pre condition is a written complaint to be filed by the public servant. In the absence of such a complaint, Ld. MM could not have taken cognizance of the offence punishable u/s 186 IPC. In the present case, no such complaint was filed by the complainant before the court of Ld. MM and hence, he could not have taken cognizance in the matter when the chargesheet was filed by the police in the present case i.e. FIR No. 551/2007 u/s 186/353/307/34 IPC PS Rohini.
30. In the said case of Gurinder Singh (Supra), Hon'ble Court referred to other authorities i.e. P. Btiraj vs. K. Muniyandi 1995 Criminal Rulings 219 and Bhagat Ram vs. State of Punjab 1991 (1) Crl. LJ 246 and held that in such cases when the Magistrate acts in contravention of bar u/s 195 CrPC, the entire case as a whole must go and the proceedings deserve to be quashed.
31. It has been held by Hon'ble Supreme Court of India in Page No. 16 of 18 FIR No.551/07 State Vs. Rajan @ Rahul and ors.
Police Station : Rohini number of cases that the circumstances from which the conclusion of guilt is to be drawn should be fully established and the said circumstances should not be explainable on any other hypothesis except that the accused is guilty and the circumstance is to be conclusive in nature.
32. The testimonies of the police witnesses, as discussed above, are full of inconsistencies and contradictions and do not inspire the confidence of the court put forward by the prosecution. The version given by these witnesses do not find any corroboration from any independent source. How convenient it is for these police witnesses to depose in chorus without any regard to established norms of criminal law. Non joining of public witnesses coupled with contradictory evidence by police witnesses in their cross examination leave a grave doubt in the mind of this court about the allegations made against the accused persons & in such grounds hence, planting of countrymade pistol and the knife on the accused persons cannot be ruled out. Non filing of complaint u/s 195 CrPC after the commission of the offence and eventually filing the said complaint after about 10 years of the incident, is also fatal to the case of prosecution.
33. It is relevant here to state that prosecution has not led any Page No. 17 of 18 FIR No.551/07 State Vs. Rajan @ Rahul and ors.
Police Station : Rohini evidence to prove the proceedings u/s 82/83 CrPC allegedly carried out against accused Budh Ram and hence it has failed to prove charge u/s 174A IPC against accused Budh Ram.
34. Applying the above principles of law to the facts of the present case, it is evident that the prosecution has failed to prove its case beyond reasonable doubt and hence all the accused persons are acquitted.
35. Accused persons are directed to furnish personal bond in the sum of Rs.10,000/ with one surety each of like amount u/s 437A CrPC. Bail bond furnished and accepted.
36. Case property is confiscated to the State and the same may be disposed of after the expiry of the period of the appeal/revision & if this order is challenged, subject to the order of Hon'ble Appellate Court.
37. File be consigned to Record Room.
Announced in the open court
th
on this 24 day of July, 2018.
(DEEPAK GARG)
ASJII, NORTHWEST
ROHINI: DELHI
Page No. 18 of 18