Delhi District Court
Chaman Lal @ Babbal vs Unknown on 24 September, 2014
IN THE COURT OF SH. PARVEEN SINGH,
ADDITIONAL SESSIONS JUDGE03(NE), ROOM NO.53,
KARKARDOOMA COURTS, DELHI.
SC No. 12/10
Unique Case ID no. 02402R0177552009.
FIR No. 117/09
PS Seelampur.
U/s 392/397/411/34 IPC.
25/27 Arms Act.
State
Versus
1. Chaman Lal @ Babbal,
S/o Sh. Dwarika Prasad,
R/o N19/8, Gali No. 9,
Braham Puri, Delhi.
2. Suraj @ Ashish,
S/o Sh. Ram Chander,
R/o Garima Garden,
Near Sai Baba Mandir, Bhopura,
Ghaziabad, UP.
3. Pawan,
S/o Sh. Madan Lal,
FIR No. 117/09
PS Seelampur 1/19
R/o A65, Kashi Ram Dudh Wali Gali,
Kabir Nagar, Welcome,
Delhi.
Date of Committal : 27.07.2009.
Date of reserving judgment / order : 16.09.2014.
Date of pronouncement : 24.09.2014.
JUDGMENT
The case of the prosecution is, that on 25.03.2009, PW2 Ata Husain was driver of bus bearing no. DL 19A 6917 and PW4 Ali Raja was the helper of this bus. On that day at around 08.28 p.m., that bus started from Birla Mandir for its destination at Seemapuri. At around 09/09.10 p.m., when this bus reached Seelampur stand, one person put revolver on temporal region of the driver and directed him not to move his head and drive the vehicle slowly. The associates of that person robbed the helper and the passengers of that bus and after crossing the flyover, the driver was directed to stop the bus. On the bus being stopped, the robbers alighted from it and fled. Information regarding this incident was received at PS Seelampur and was recorded vide DD No. 29 Ex.PW3/A. This DD was assigned to PW3 ASI Suresh Kumar, who alongwith PW5 HC Rahisuddin reached Seelampur flyover. On reaching there, PW3 ASI Suresh Kumar recorded statement Ex.PW2/A of Ata Hussain (PW2). On the basis of this statement, PW3 ASI Suresh Kumar recorded rukka Ex.PW3/B and sent it FIR No. 117/09 PS Seelampur 2/19 for registration of FIR through Ct. Rahisuddin. Duty Officer HC Shashi Bhushan (PW11) recorded FIR Ex.PW11/A.
2. It is further the case of the prosecution that on 08.04.2009, Insp. N.R Lamba received a secret information and he alongwith ASI Sat Pal, HC Virender, Ct. Devender and Ct. Pramod reached H. No. 19/8, X Block, Gali No. 9, Braham Puri. The said house belonged to accused Chaman Lal and in that house, the police party found accused Chaman Lal, Suraj and Pawan sitting on the first floor of that house. The police then conducted personal search of all the three accused and each accused was found in possession of one country made pistol and one live cartridge. The sketches of the cartridges were prepared vide Ex.PW10/A, Ex.PW10/B and Ex.PW10/C. The country made pistols recovered from accused Chaman Lal, Suraj and Pawan were converted into separate cloth parcels, sealed with the seal of NRL and taken into possession vide memos Ex.PW10/D3, Ex.PW10/E3 and Ex.PW10/F3 respectively. The country made pistol, one live cartridge and one spent cartridge recovered from accused Chamal Lal are collectively Ex.P3. The country made pistol, one live cartridge and one spent cartridge recovered from accused Suraj are collectively Ex.P4. The country made pistol, one live cartridge and one spent cartridge recovered from accused Pawan are collectively Ex.P5. Accused Suraj was also found in possession of Rs.1,100/, accused Chaman Lal was found in possession FIR No. 117/09 PS Seelampur 3/19 of Rs.1,200/ and accused Pawan was found in possession of Rs.900/, which were seized vide memo Ex.PW10/G, Ex.PW10/H and Ex.PW10/J respectively. Thereafter, accused Chaman Lal was arrested vide memo Ex.PW10/F and his personal search was conducted vide memo Ex.PW10/F1. Accused Chaman Lal made disclosure Ex.PW10/F2. Accused Suraj was arrested vide memo Ex.PW10/E and his personal search was conducted vide memo Ex.PW10/E1. Accused Suraj made disclosure Ex.PW10/E2. Accused Pawan was arrested vide memo Ex.PW10/D and his personal search was conducted vide memo Ex.PW10/D1. Accused Pawan made disclosure Ex.PW10/D2. Pursuant to disclosure of Chaman Lal, one mobile phone Ex.P2 (Ex.PW1/P1) was recovered at his instance and that mobile was seized vide memo Ex.PW10/D.
3. On 16.04.2009, an application for TIP (Ex.PW15/A) was moved by PW10 Insp. N.R. Lamba. On 20.04.2009, TIP of accused Chaman Lal was conducted vide Ex.PW15/B, of accused Suraj was conducted vide Ex.PW15/D and of accused Pawan was conducted vide Ex.PW15/C.
4. On 09.09.2009, charges u/s 392/34 IPC and 397 IPC were framed against all the accused to which they all pleaded not guilty and claimed trial.
5. Thereafter, on 19.02.2010, PW9A Sh. Rajesh Kumar FIR No. 117/09 PS Seelampur 4/19 accorded sanction for prosecution of accused u/s 25 of Arms Act vide Ex.PW9/A.
6. On 09.05.2011, separate charges u/s 25/27/54/59 Arms Act were also framed against the accused persons to which they all pleaded not guilty and claimed trial.
7. Prosecution to prove its case examined 15 witnesses.
8. PW1 is HC Jaswant Singh. On 08.04.2009, he was MHCM and on that day, he had deposited 03 sealed parcels sealed with the seal of NRL vide entry no. 3670 in register no. 19. On 27.05.2009, vide RC No. 49/21, he had given three sealed parcels to HC Pawan Kumar for depositing the same with FSL Rohini. On 06.08.2009, result from FSL was received but the country made pistol and cartridges were not received. He made entry in register no. 19 in this regard. The copy of register no. 19 (running into 08 pages) is Ex.PW1/A.
9. PW2 is Ata Hussain, who was the driver of the bus in which the incident had happened. The effect of his testimony shall be discussed at a later stage.
10. PW3 is ASI Suresh Kumar. On 25.03.2009, DD No. 29A was assigned to him. On receiving the DD, he alongwith Ct. Rahissudin reached Seelampur flyover. He recorded statement of PW2 Ata Hussain vide Ex.PW2/A upon which he had prepared rukka Ex.PW3/B and sent it FIR No. 117/09 PS Seelampur 5/19 for registration of FIR through Ct. Rahissudin.
11. PW3A is Mohd. Wazid (in the judicial file it has been recorded as PW3. However, in judgment this witness shall be read as PW3A). He was the helper of the bus in which the incident had happened. This witness has supported the prosecution to the extent that the incident had happened. However, he did not identify the accused persons and after looking at the accused persons, he stated that they were not the robbers. Thus, he was declared hostile by Ld. Addl. PP. During his cross examination by Ld. Addl. PP, he admitted that he had stated to the police that one boy was having a cut mark on his chin and the other boy was not walking properly. He admitted that he had stated to the police in his statement that few prisoners and other boys in Tihar Jail had threatened him by showing him ''mukka'' and showing gestures that they would see him when they would come out of Tihar Jail. He further deposed that at the time of TIP, as he was very scared, he did not make any attempt to actually identify the accused persons. He denied that he was intentionally not identifying the accused as he had been won over by them.
12. PW4 is Ali Raja. He has also supported the case of the prosecution as far as happening of incident goes. He also deposed that culprits had forcibly taken his mobile phone having no. 9990514526 and 9212969824, some documents and money. The mobile phone recovered at FIR No. 117/09 PS Seelampur 6/19 the instance of accused Chaman Lal was produced in the court and he identified it to be the same which was robbed by the accused. The mobile phone was exhibited as Ex.PW1/P1. He also did not identify any of the accused persons in the court. From his cross examination, nothing material could be elicited regarding the identity of the robbers.
13. PW5 is HC Mohd Rahisuddin. He had accompanied ASI Suresh to the scene of crime and had taken rukka to the police station for registration of FIR and after registration of FIR, he handed the FIR to IO.
14. PW6 is Manoj. He was a passenger of the bus, which was looted and stated that he was looted of Rs.600/ but did not identify any of the accused and stated that he had not seen them. During his cross examination, nothing could be elicited to inculpate the accused. Even after the accused being specifically pointed out to him, he denied that these were the persons who had robbed the bus at gun point.
15. PW7 is Wasim. He deposed that he did not remember anything. He was declared hostile by ld. Addl. PP for the State. During his cross examination, he admitted the happening of the incident. However, nothing incriminating against the accused could be brought out from his cross examination. He did not identify the accused persons as robbers.
16. PW8 is Ashok. He was a passenger of the bus in which the incident had happened. He deposed that the bus was robbed and he was FIR No. 117/09 PS Seelampur 7/19 robbed of a mobile phone and a purse containing Rs.4,000/. He also stated that the accused, present in the court on that day, were not the robbers. He was declared hostile by ld. Addl. PP for the State. However, from his cross examination, nothing could be brought out to inculpate the accused.
17. PW9 is Habu Dass. He was also a passenger of the bus, which was looted. He deposed that some persons had looted the bus and they had also looted his purse containing his license and Rs.70/. He further deposed that accused were not the persons who had robbed the bus. He was cross examined at length by the Ld. Addl. PP but nothing incriminating against the accused could be brought out.
18. PW9A is Rajesh Kumar (the witness has been mentioned as PW9 however, in judgment this witness will be read as PW9A). He deposed that on 19.02.2010, he was posted as Addl. DCP in North East District. He deposed that on perusal of copy of report u/s 173 Cr.P.C, report of ballistic expert, copies of other documents relied upon by the police including seizure memo, he had granted sanction u/s 39 of Arms Act for prosecution of all accused for offence u/s 25 of Arms Act. During his cross examination, he denied that IO had not given the case file in his office. He admitted that the case property was not produced before him. He denied that he had given sanction order without application of mine and in a routine manner.
19. PW10 is Insp. N. R. Lamba. He deposed that on 08.04.2009, FIR No. 117/09 PS Seelampur 8/19 he received information that the persons wanted in the case of bus robbery on 25.03.2009, were members of Chaman Gang, and were sitting in the house of Chaman Lal at 19/8, X Block, Gali No. 9, Braham Puri, Delhi. Then, he alongwith ASI Sat Pal, HC Virender, Ct. Devender and Ct. Pramod reached the house of Chaman Lal. He found all the accused sitting on the first floor of that house. All the accused were found in possession of one loaded country made pistol and one live cartridge. The sketches of country made pistol and cartridges were prepared vide Ex.PW10/A, Ex.PW10/B and Ex.PW10/C. All the accused were arrested vide arrest memos Ex.PW10/D, Ex.PW10/E and Ex.PW10/F and their personal search was conducted vide memos Ex.PW10/D1, Ex.PW10/E1 and Ex.PW10/F1. All the accused made their disclosures vide Ex.PW10/D2, Ex.PW10/E2 and Ex.PW10/F2. Accused Suraj was also found in possession of Rs.1,100/, accused Chaman Lal was found in possession of Rs.1,200/ and accused Pawan was found in possession of Rs.900/, which were seized vide memo Ex.PW10/G, Ex.PW10/H and Ex.PW10/J respectively. Pursuant to disclosure of Chaman Lal, one mobile phone Ex.P2 (Ex.PW1/P1) was recovered at his instance and that mobile phone was seized vide memo Ex.PW10/D. On 16.04.2009, he moved an application for TIP (Ex.PW15/A). On 20.04.2009, TIP of accused Chaman Lal was conducted vide Ex.PW15/B, of accused Suraj was conducted vide Ex.PW15/D and of FIR No. 117/09 PS Seelampur 9/19 accused Pawan was conducted vide Ex.PW15/C. On 19.02.2010, PW9A Sh. Rajesh Kumar accorded sanction for prosecution of accused u/s 25 of Arms Act vide Ex.PW9/A. He further deposed that copies of seizure memos were not given to the accused.
20. During his examination in chief, the case property was opened and found containing Rs.3,200/ and one mobile phone. He stated that the currency notes were the same which were recovered from all accused. The currency notes were collectively exhibited as Ex.P1. He also identified a mobile phone make Nokia as the same which was recovered at the instance of accused Chaman Lal. The mobile phone was exhibited as Ex.P2. He identified the country made pistols, one live cartridge and one spent cartridge to be recovered from all accused. The country made pistol, one live cartridge and one spent cartridge recovered from accused Chaman Lal was exhibited as Ex.P3, from accused Suraj as Ex.P4 and from accused Pawan as Ex.P5.
21. During his cross examination, he deposed that they reached the house of Chaman Lal at around 12 noon. Even after being asked, nobody came to join the investigation. He did not issue notice u/s 160 Cr.P.C to any public person. the accused were sitting in the room of the first floor and no warning was given to the accused by the police and they were apprehended at once. HC Virender had apprehended accused Chaman. Ct. FIR No. 117/09 PS Seelampur 10/19 Devender had apprehended accused Suraj and Ct. Pramod had apprehended accused Pawan. Accused Chaman was wearing white shirt and matmela colour pant, accused Pawan was wearing sky blue colour shirt and accused Suraj was wearing Maroon colour shirt. The door of the house was closed but was not bolted. He had asked the accused to take their search but they denied. There was no particular identification mark on the recovered kattas. No name of the accused was written on the kattas but sr. no. 1, 2 and 3 were mentioned on the seizure memos. He denied that the accused were shown to the witnesses in the police station, or that their photographs were taken and shown to the witnesses. He had left the file for obtaining sanction u/s 39 Arms Act in the office of Addl. DCP. The case property was not taken to Addl. DCP. At the time of recovery, the mobile phone was not having any sim card and it was switched off. He could not say whether the mobile phone was in working condition or not. The mobile phone was allegedly belonged to Ali Raja.
22. PW11 is HC Shashi Bhushan. On 25.03.2009, he was duty officer at PS Seelampur. On receipt of rukka, he registered FIR Ex. PW11/A and made his endorsement Ex.PW11/B on the same.
23. PW12 is HC Pramod. On 08.04.2009, he had accompanied PW10 Insp. NR Lamba on the raid wherein accused persons were arrested. He deposed on the lines of PW10 Insp. NR Lamba.
FIR No. 117/09 PS Seelampur 11/19
24. During his cross examination, he deposed that they had raided the house of Chaman Lal at around 12.20 p.m. HC Virender apprehended accused Chaman, accused Suraj was overpowered by Ct. Devender and accused Pawan was overpowered by him. He did not remember if prior to search of accused, IO had offered his search to the accused. He denied that accused had not made any disclosure. He denied that nothing was recovered from accused or that the accused had been falsely implicated in this case. He did not know whether the copies of recovery memos were given to the accused persons. He did not know if any person from neighbourhood was called by the IO. He did not know if information regarding the arrest of accused persons were given to their family members.
25. PW13 is Retd. ASI Satpal. He was also a member of raiding party. He deposed on the lines of Insp. NR Lamba.
26. During his cross examination, he deposed that they reached the house of Chaman Lal at 12.20 p.m. He deposed that the IO had requested some persons to join the investigation but they refused. He deposed that the IO had not issued any notice u/s 161 Cr.P.C to the any public person. Accused Chaman Lal was apprehended by IO and HC Virender. Accused Suraj was apprehended by him and accused Pawan was apprehended by Ct. Devender. He further deposed that accused tried to run away but the gate of the room had been blocked by them. He further FIR No. 117/09 PS Seelampur 12/19 deposed that the IO had issued a warning to the accused that if they tried to flee, they would be shot. The accused tried to take out their weapons but they were overpowered. Accused Chaman Lal was kept in the same room and other two accused were taken in adjoining room. He further deposed that the copies of seizure memos were given to the accused and receipts of the same were obtained.
27. PW14 is Surender Kumar. He had not brought CDRs of mobile numbers 99910514526 and stated that he same had been destroyed. He brought certificate in this regard which was exhibited as Ex.PW14/A. However, he had brought the original customer application form with the copies of documents submitted with the application. The copy of application was exhibited as Ex.PW14/B.
28. PW15 is Ms. Shivali Sharma, Ld. Civil Judge. She had conducted TIP proceedings of accused Chaman Lal, Suraj and Pawan. She proved the TIP proceedings of accused Chaman vide Ex.PW15/B, of accused Pawan vide Ex.PW15/C and of accused Suraj vide Ex.PW15/D.
29. I have heard learned Addl. PP for the State and learned counsel for the accused and have perused the record very carefully.
30. From the evidence above, it is very clear that the prosecution witnesses, during their testimonies, in the court have not identified the accused to be the persons who had robbed the bus bearing no. DL 19A 6917 FIR No. 117/09 PS Seelampur 13/19 and had robbed them.
31. Learned Addl. PP has contended that in the TIP proceedings, witness Ata Hussain had clearly identified these accused and on being won over by the accused or being afraid, he did not identify the accused in the court and therefore, the TIP proceedings should be considered to prove the identity of the accused.
32. However, I find that this witness has clearly deposed that the accused were shown to him when they were arrested and he was directed by police to identify them as offenders. He denied that the accused had not been shown to him prior to TIP proceedings. The witness has clearly stated that the accused had been shown to him prior to TIP proceedings and therefore, TIP stands vitiated and his testimony in the court has to be taken to be correct. Even otherwise, his testimony shows that one of the robbers had put a pistol on his temporal region and asked him not to move his head and he obeyed. That being the case, this witness could have never seen the remaining accused as they were behind his back. But surprisingly, in TIP, he identified all the accused. Therefore, there is no incriminating evidence as far as identity of the accused goes.
33. The only incriminating evidence which could relate the accused with the evidence is the alleged recovery of mobile phone Ex.P2 at the instance of accused Chaman Lal. However, I find that the prosecution FIR No. 117/09 PS Seelampur 14/19 has not placed on record any evidence to prove that this mobile phone in fact belonged to PW4 Ali Raja. The only evidence which had been brought on record in this regard is the customer application form Ex.PW14/B. Witness PW4 deposed that his mobile phone was having number 99910514526. However, the customer application form Ex.PW14/B shows that this number was alloted one Irshad s/o Sh. Habib Khan. Thus, witness PW4 Ali Raja who claims to be the holder of this mobile number is not the applicant to whom this number was allotted. The father's name of witness Ali Raja is Abdul Nabi whereas the father's name of Irshad is Habib Khan. Even in the ration card which was provided at the time of applying for this connection does not show witness Ali Raja to be a member of the family of the allottee of the number. Therefore, there is a doubt that the mobile phone which was recovered at the instance of accused Chaman Lal was the same mobile phone which belonged to PW4 Ali Raja.
34. Neither the IMEI of this phone was proved, nor the ownership of this phone was proved. Thus, the recovery of this phone also failed to connect the accused persons with the offence. Further, the mobile phone recovered at the instance of accused Chaman Lal was the same mobile phone upon which sim card bearing no. 99910514526 was being operated has also not been proved. I accordingly find that for the offence u/s 392/34 IPC and 397 IPC, accused are entitled to benefit of doubt. FIR No. 117/09 PS Seelampur 15/19
35. Now coming onto the offence u/s 25/27/54/59 Arms Act.
36. The case of the prosecution is that when on 08.04.2009, accused were apprehended, each of them were found in possession of country made pistol which were loaded and cartridge, which were found in their pockets. No public person was joined in the investigation and there are only police witnesses to prove the apprehension of the accused and the recovery of country made pistols and the cartridges from the accused.
37. It is a well settled law that only because the witnesses are police witnesses, their testimonies cannot be discarded and the testimonies of police witnesses are to be taken to be as reliable as of public witnesses. However, it is also a well settled law that in a case where the witnesses are only police witnesses, evidence needs a careful, complete and strict scrutiny by the court.
38. In this regard, Hon'ble Supreme Court in the case of Pradeep Narayan v. State of Maharashtra, AIR 1995 SC 1930 has observed as under: Indeed, the evidence of the officials (police) witnesses cannot be discarded merely on the ground that they belong to the police force and are, either interested in the investigating or the prosecuting agency but prudence dictates that their evidence needs to be subjected to strict scrutiny and as far as possible corroboration of their evidence in material particulars should be sought. Their desire to see success of the case based on their investigation required greater care to appreciate their FIR No. 117/09 PS Seelampur 16/19 testimony. We cannot lose sight of the fact that these police officials did not join any independent witnesses of the locality and made an attempt to create an impression on the Court that PW2 and PW5 were witnesses of locality and were independent....
39. Further in the case of Rohtash Kumar v. State of Haryana, 2013 (14) SCC 434, the Hon'ble Supreme Court has held as under:
Although the evidence of police witnesses cannot be discarded merely because either interested witnesses in the investigating or the prosecuting agency but when all the witnesses are from police department, their deposition must be subject to strict scrutiny and as far as possible, the corroboration of their evidence on material particulars should be sought.
40. It has also been held by Hon'ble Supreme Court in case of Aslam Parvez v. State of GNCT of Delhi, (2003) 9 SCC 141 that Where the testimony of police witness is found to be unreliable, it is highly unsafe to place reliance upon that testimony in order to convict the accused.
41. After going through the evidence of police witnesses, I find that there are certain contradictions in the testimony of these witnesses.
42. PW10 Insp. NR Lamba deposed that the accused were sitting in a room on the first floor. No warning was issued to the accused. The accused were apprehended at once. No accused had fired upon the police party. Contrary to that, PW13 ASI Satpal deposed that the accused had tried to run but the gate of the room was blocked by them. IO had issued warning FIR No. 117/09 PS Seelampur 17/19 if the accused tried to run they would be shot. The accused had tried to take out weapons but they were overpowered.
43. Considering the fact that no public witnesses are joined, these are material contradictions where one witness says that no warning was issued and other says that warning was issued; where one witness says that the accused were apprehended at once and the other says that the accused tried to run but could not run as the gate was blocked and where one witness says that no accused had fired upon police party and other says that the accused tried to take out their weapons but they were overpowered.
44. There is another contradiction where PW10 stated that no copy of seizure memos were given to the accused and PW13 stated that copies of seizure memos were given to the accused and receipts of the same were obtained.
45. It is also to be noticed that how and when these country made pistols which were sent to FSL on 27.05.2009 vide RC No. 49/21, were received back in the police station has not been proved before the court. PW1 stated that he had only received report of FSL and no country made pistols and the cartridges were received. Therefore, whether the country made pistols and the cartridges which were produced before the court were the same country made pistols or cartridges which were allegedly recovered at the instance of accused also becomes doubtful and the identity of these FIR No. 117/09 PS Seelampur 18/19 articles comes under cloud.
46. I accordingly find that in view of the contradictions between the testimonies of witnesses of apprehension of accused and the recovery of country made pistols and cartridges from them and in view of the cloud over the identity of the case property, all the accused are entitled to benefit of doubt.
47. In view of the above, all the accused are acquitted of charges framed against them. Their bail bonds stand cancelled. Sureties stand discharged. File be consigned to record room.
Announced in open court (Parveen Singh) today on 24.09.2014 Additional Sessions Judge03 (This judgment contains 19 pages (NE): Karkardooma Courts, and each page bears my signatures.) Delhi. FIR No. 117/09 PS Seelampur 19/19