Delhi District Court
State vs . (1). Parveen Kumar @ Sonu on 28 August, 2014
FIR No. 123/04; U/s 186/353/307/411/34 IPC & 25/27 Arms Act; & FIR No. 124/04; 25/27 Arms Act; P.S. Narela D.O.D.: 28.08.2014 IN THE COURT OF SHRI VIDYA PRAKASH: ADDL. SESSIONS JUDGE04 (NORTH): ROHINI COURTS: DELHI Session Case No. 214/14 Unique Case ID No. 02404R0123792006 State Vs. (1). Parveen Kumar @ Sonu S/o Sh. Ramphal Bhardwaj R/o C1/55, Rama Vihar, Sultanpuri, Delhi. (2). Rajbir @ Billu S/o Sh. Nafe Singh R/o Village Ghoga, P.S. Narela Delhi. FIR No. : 123/04 Police Station : Narela Under Sections : 186/353/307/411/34 IPC & Sec. 25/27/54/59 Arms Act AND Session Case No. 215/14 Unique Case ID No. 02404R0123982006 State Vs. Parveen Kumar @ Sonu S/o Sh. Ramphal Bhardwaj R/o C1/55, Rama Vihar, Sultanpuri, Delhi. FIR No. : 124/04 Police Station : Narela Under Sections : Sec. 25/27/54/59 Arms Act State V/s Parveen Kr. @ Sonu & Anr & State Vs. Parveen @ Sonu. ("Acquitted") Page 1 of 26 FIR No. 123/04; U/s 186/353/307/411/34 IPC & 25/27 Arms Act; & FIR No. 124/04; 25/27 Arms Act; P.S. Narela D.O.D.: 28.08.2014 Date of committal to Sessions Court : 03.10.2012 Date on which judgment was reserved: 28.08.2014 Date on which Judgment pronounced : 28.08.2014 JUDGMENT
Vide this common judgment, I shall decide both the cases arising out of FIR No. 123/04 and 124/04 registered at PS Narela as both the said cases have been tried together and common evidence has been recorded in both the cases, out of which case FIR No. 123/04 has been treated as a leading case.
Brief facts of the case giving rise to FIR No. 123/04 and 124/04 are as under:
(i) That on 23.03.2004 at about 7.55 pm, four police officials namely HC Rajpal (PW2), Ct. Shiv Bodh Singh (PW3), Ct. Satish (PW4) and Ct. Ramesh of PS Narela were on official duty for checking the vehicles for anti robbery and anti snatching picket at DSIDC Chowk, near SRHC Hospital when both the present accused namely Rajbir @ Billu and Parveen @ Sonu came in Maruti car bearing no.
HR26U0404 at fast speed. They were asked to stop the said car which was being driven by accused Parveen @ Sonu but the said car was stopped by him only when Ct. Satish (PW4) put the barricades on the road.
(ii) That on the direction of HC Rajpal (PW2), Ct. Satish (PW4) asked accused Parveen @ Sonu to produce his driving licence and documents of the said car on which accused Rajbir @ Billu got down State V/s Parveen Kr. @ Sonu & Anr & State Vs. Parveen @ Sonu. ("Acquitted") Page 2 of 26 FIR No. 123/04; U/s 186/353/307/411/34 IPC & 25/27 Arms Act; & FIR No. 124/04; 25/27 Arms Act; P.S. Narela D.O.D.: 28.08.2014 from the car and claimed that they had been going to see some patient in BJRM Hospital, Jahangirpuri.
(iii) That accused Parveen @ Sonu hit Ct. Satish (PW4) by opening the door of the driver side due to which Ct. Satish (PW4) fell down and sustained injuries. In the meantime, coaccused Rajbir @ Billu took out country made pistol and fired at HC Rajpal (PW2) who managed to save himself as he sat down on the ground. In the meantime, accused Parveen @ Sonu also took out his country made pistol on which HC Rajpal (PW2) fired two rounds from his service revolver in the air.
(iv) That accused Parveen @ Sonu was overpowered by Ct. Satish (PW4) whereas coaccused Rajbir @ Billu was overpowered by Ct. Ramesh and Ct. Shiv Bodh Singh (PW3). Ct. Satish (PW4) took country made pistol from the possession of accused Parveen @ Sonu and checked the same and on checking, the same was found containing one live cartridge. Ct. Shiv Bodh Singh (PW3) took country made pistol from accused Rajbir @ Billu and checked the same which was found containing one fired cartridge. HC Rajpal (PW2) took formal search of accused Rajbir @ Billu on which one live cartridge was recovered from right pocket of his pant. HC Rajpal (PW2) gave information through wireless set in PS Narela vide DD No. 22A (Ex.PW12/A).
(v) That on receipt of DD No. 22A (Ex.PW12/A), SI R.K. Maan (PW13) alongwith HC Azad Singh (PW12), Ct. Kuldeep (PW5) and Ct. Mange Ram (PW7) reached at the aforesaid place. In the meanwhile, State V/s Parveen Kr. @ Sonu & Anr & State Vs. Parveen @ Sonu. ("Acquitted") Page 3 of 26 FIR No. 123/04; U/s 186/353/307/411/34 IPC & 25/27 Arms Act; & FIR No. 124/04; 25/27 Arms Act; P.S. Narela D.O.D.: 28.08.2014 Inspector Mahipal Singh, the then SHO of PS Narela alongwith his staff also reached there in official gypsy.
(vi) HC Rajpal (PW2) handed over custody of accused Rajbir @ Billu and recovered country made pistol, fired cartridge and live cartridge to SI R.K. Maan (PW13) who recorded the statement (Ex.PW2/A) of HC Rajpal. He also carried out the relevant proceedings like preparing rough sketch of recovered arms and ammunition, taking their measurements, preparing pullandas thereof, sealing the pullanda with the seal of RPM and took them into police possession.
(vii) Then SI R.K. Maan also checked the said Maruti 800 car bearing number plate of HR26U0404 and one number plate of DBB5513 was recovered from inside the said car. The said number plate as also the said Maruti 800 car were seized by SI R.K. Maan.
(viii) Thereafter, SI R.K. Maan prepared rukka (Ex.PW13/A) and got the FIR registered through Ct. Kuldeep. After registration of FIR, SI R.K. Maan arrested both the accused persons and conducted their personal search. Both the accused also made disclosure statements before him.
(ix) Thereafter, SI R.K. Maan prepared site plan (Ex.PW13/B) at the instance of HC Rajpal (PW2) and recorded the statements u/s 161 Cr.P.C. of witnesses. The case property was deposited in the Malkhana. Thereafter, the recovered arms and ammunitions were sent to FSL, Rohini for their examination and on receipt of FSL result, requisite sanction U/s 39 Arms Act for prosecuting the accused was State V/s Parveen Kr. @ Sonu & Anr & State Vs. Parveen @ Sonu. ("Acquitted") Page 4 of 26 FIR No. 123/04; U/s 186/353/307/411/34 IPC & 25/27 Arms Act; & FIR No. 124/04; 25/27 Arms Act; P.S. Narela D.O.D.: 28.08.2014 also obtained. Not only this, ACP Rakesh Bansal who was posted as ACP Sub Division Narela, also filed written complaint U/s 195 Cr.P.C. (Ex.PW9/A) for prosecuting the accused persons for the offence U/s 186 IPC.
(x) As per verbal direction given by SHO, PS Narela, separate proceedings were conducted by HC Azad Singh about recovery of country made pistol and cartridges from accused Parveen @ Sonu. In this regard, HC Azad Singh also carried out relevant proceedings including preparation of rough sketch of pistol (Ex.PW4/B) and cartridge, taking their measurements, preparing their pullandas and sealing the same with the seal of AS. Thereafter, HC Azad Singh took them into possession of police.
(xi) HC Azad Singh also recorded separate statement (Ex.PW4/A) of Ct. Satish and prepared rukka (Ex.PW12/B) and got the FIR no. 124/04 U/s 25/27 Arms Act registered through Ct. Mange Ram.
(xii) After registration of FIR, HC Azad Singh arrested accused Parveen @ Sonu in case FIR No. 124/04 and deposited sealed pullanda in Malkhana of PS Narela. The pullanda of case FIR No. 124/04 was also sent to FSL, Rohini for its examination. In the meantime, sanction U/s 39 Arms Act for prosecuting said accused was also granted by Competent Authority. Then, FSL result was also received from FSL, Rohini.
After completion of investigation, chargesheets in respect of State V/s Parveen Kr. @ Sonu & Anr & State Vs. Parveen @ Sonu. ("Acquitted") Page 5 of 26 FIR No. 123/04; U/s 186/353/307/411/34 IPC & 25/27 Arms Act; & FIR No. 124/04; 25/27 Arms Act; P.S. Narela D.O.D.: 28.08.2014 both the aforesaid FIRs came to be filed before the Court of Ld. M.M. After compliance of section 207 Cr.P.C., both the cases were committed to the Court of Sessions and were assigned to Ld. Predecessor of this Court.
At this juncture, it may be noted that after committal of the cases before Ld. Predecessor of this Court, accused Rajbir @ Billu stopped appearing in the matter and consequently, he was declared P.O. vide order dated 17.11.2006 by Ld. Predecessor of this Court.
After hearing arguments on the point of charge, Ld. Predecessor of this Court was pleased to frame the charges u/s 186/353/307/34 IPC & Sec. 25/27 Arms Act against accused Parveen Kumar vide order dated 02.02.2010 to which said accused pleaded not guilty and claimed trial.
At this stage, it may be mentioned that vide order dated 02.02.2010, Ld. Predecessor of this Court had been pleased to direct that cases arising out of FIR No. 123/04 and 124/04 with PS Narela shall be tried together and thereafter, matter was listed for Prosecution Evidence.
In the meantime, accused Rajbir @ Billu was arrested and consequently, separate charges in respect of offences U/s 186/353/307/34 IPC & Sec. 25/27 Arms Act were framed against said accused vide order dated 18.08.2011 by Ld. predecessor of this Court, to which he pleaded not guilty and claimed trial.
In support of its case, prosecution examined thirteen witnesses namely PW1 HC Joginder Pal, PW2 Rajpal, PW3 Ct. Shiv Bodh Singh, PW4 HC Satish, PW5 HC Kuldeep, PW6 HC Bijender, PW7 HC Mange Ram, PW8 State V/s Parveen Kr. @ Sonu & Anr & State Vs. Parveen @ Sonu. ("Acquitted") Page 6 of 26 FIR No. 123/04; U/s 186/353/307/411/34 IPC & 25/27 Arms Act; & FIR No. 124/04; 25/27 Arms Act; P.S. Narela D.O.D.: 28.08.2014 HC Jagmal Singh, PW9 Dr. Rakesh Bansal, PW10 Ct. Naresh Kumar, PW11 Sh. Puneet Puri, PW12 HC Azad Singh and PW13 Inspector R.K. Maan.
Thereafter, statements U/s 313 Cr.PC of both the accused persons were recorded during which all the incriminating evidence which came on record, were put to them which they denied. Both the accused persons claimed that they are innocent and have been falsely implicated in this case. However, both the accused persons opted not to lead any evidence towards their defence.
Before discussing the rival submissions made on behalf of both the sides, it would be appropriate to discuss, in brief, the testimonies of prosecution witnesses which have come on record. The said testimonies are detailed as under: POLICE WITNESSES PW1 HC Joginder: He is the Duty Officer. He has proved factum regarding registration of FIR No. 123/04 and 124/04. He proved copy of FIR No. 123/04 as Ex.PW1/A and his endorsement on the rukka as Ex.PW1/B. He also proved copy of FIR No. 124/04 as Ex.PW1/C and his endorsement on the rukka as Ex.PW1/D. The said witness has not been cross examined on behalf of accused persons despite grant of opportunity.
PW2 HC Rajpal, PW3 Ct. Shiv Bodh Singh & PW4 Ct.
Satish: As per case of prosecution, these three witnesses alongwith Ct. Ramesh were on official duty at the time of incident in question as they were State V/s Parveen Kr. @ Sonu & Anr & State Vs. Parveen @ Sonu. ("Acquitted") Page 7 of 26 FIR No. 123/04; U/s 186/353/307/411/34 IPC & 25/27 Arms Act; & FIR No. 124/04; 25/27 Arms Act; P.S. Narela D.O.D.: 28.08.2014 doing vehicle checking at anti robbery and anti snatching picket at DSIDC Chowk, near SRHC Hospital on 23.03.2004 at 7.55 pm when both the accused came in Maruti 800 car.
All the said three witnesses deposed on the lines of prosecution story during their chief examination. PW2 proved his statement Ex.PW2/A made before SI R.K. Maan (PW13), rough sketch of country made pistol and cartridges recovered from accused Rajbir @ Billu as Ex.PW2/B and seizure memo of pullanda thereof as Ex.PW2/C. He also proved seizure memo of number plate of DBB5513 and of Maruti 800 car bearing number plate HR26U0404 as Ex.PW2/D. PW2 further deposed that he had also handed over his service revolver and two empty cartridges to SI R.K. Maan (PW13) who had seized the same after preparing their cloth pullanda sealed with the seal of RPM vide seizure memo Ex.PW2/E. PW2 further deposed that SI R.K. Maan had arrested both the accused namely Parveen @ Sonu and Rajbir @ Billu vide memos Ex.PW2/F and Ex.PW2/H respectively and had also conducted their personal search vide memos Ex.PW2/G and Ex.PW2/J respectively. Both the said accused had made disclosure statements Ex.PW2/K and Ex.PW2/L respectively before SI R.K. Maan in his presence. All the aforesaid three witnesses identified both the accused as also the country made pistol and cartridges recovered from accused Rajbir @ Billu as Ex.P1 to Ex.P3 respectively. PW2 also identified his service revolver Ex.P4 and empty cartridges Ex.P5 to Ex.P7 being the same which were handed over by him to IO SI R.K. Maan.
State V/s Parveen Kr. @ Sonu & Anr & State Vs. Parveen @ Sonu. ("Acquitted") Page 8 of 26 FIR No. 123/04; U/s 186/353/307/411/34 IPC & 25/27 Arms Act; & FIR No. 124/04; 25/27 Arms Act; P.S. Narela D.O.D.: 28.08.2014 All the aforesaid three witnesses have also been cross examined at length on behalf of both the accused.
PW5 HC Kuldeep and PW13 Inspector R.K. Maan:
According to case of prosecution, these two witnesses alongwith other two police officials namely HC Azad Singh and Ct. Mange Ram had reached the spot on receipt of DD No. 22A (Ex.PW12/A). The said two witnesses remained associated in the investigation of case FIR No. 123/04 and deposed about the investigation carried out by PW13 Inspector R.K. Maan on identical lines as deposed by PW2 to PW4 whose testimonies have already been discussed in the preceding paras.
PW13, however, claimed during chief examination that two number plates of DBB 5573 were recovered from Maruti 800 car. He proved rukka Ex.PW13/A prepared by him on the basis of statement Ex.PW2/A of HC Rajpal. He also deposed that on 12.06.2004, he had obtained sanction U/s 39 Arms Act given by the then Additional DCP, NorthWest District and exhibited the same as Ex.PW13/C. He also deposed that FSL result Ex.PY was also received from FSL Authority after filing of chargesheet and accordingly, same was also placed on record.
Both the aforesaid witnesses have been cross examined at length on behalf of accused persons.
PW7 HC Mange Ram and PW12 HC Azad Singh: The said two witnesses remained associated in the investigation of case FIR No. 124/04 and deposed about the investigation carried out by PW12 HC Azad Singh on State V/s Parveen Kr. @ Sonu & Anr & State Vs. Parveen @ Sonu. ("Acquitted") Page 9 of 26 FIR No. 123/04; U/s 186/353/307/411/34 IPC & 25/27 Arms Act; & FIR No. 124/04; 25/27 Arms Act; P.S. Narela D.O.D.: 28.08.2014 identical lines as deposed by PW2 to PW4 whose testimonies have already been discussed in the preceding paras.
PW12 exhibited copy of DD No. 22A as Ex.PW12/A and claimed to have prepared rukka Ex.PW12/B on the basis of statement Ex.PW4/A made by Ct. Satish before him. He deposed that FIR No. 124/04 was got registered through Ct. Mange Ram.
PW12 further deposed that he had collected FSL result Ex.PW11/A and had also obtained sanction U/s 39 Arms Act Ex.PW8/A during the course of investigation. He also identified accused Parveen @ Sonu as well as pistol Ex.P1 and test fired cartridge Ex.P2 by claiming them to have been recovered from the said accused. Both the said witnesses have been cross examined at length on behalf of accused persons.
PW6 HC Bijender: He is the MHC(M) of PS Narela. He deposed about the factum regarding deposit of two sealed pullandas, one car bearing number plate of HR26U0404 and personal search articles with him by SI R.K. Maan in malkhana vide entry made by him at Sr. No. 1184 in register no.19. He proved copy of said entry as Ex.PW6/A. He also deposed about the factum regarding deposit of one pullanda sealed with the seal of AS with him by HC Azad Singh in Malkhana vide entry made by him at Sr. No. 1185 in register no.19. He proved copy of said entry as Ex.PW6/D. He also deposed that pullandas of case FIR No. 123/04 were sent vide R.C. No. 35/21/04 and the pullanda of FIR No. 124/04 was sent vide State V/s Parveen Kr. @ Sonu & Anr & State Vs. Parveen @ Sonu. ("Acquitted") Page 10 of 26 FIR No. 123/04; U/s 186/353/307/411/34 IPC & 25/27 Arms Act; & FIR No. 124/04; 25/27 Arms Act; P.S. Narela D.O.D.: 28.08.2014 R.C. No. 36/21/04 through Ct. Naresh Kumar on 30.04.2004. He proved copies of both the said RCs as Ex.PW6/B and Ex.PW6/E respectively. He also proved copies of receipts/ acknowledgments issued by FSL Authority as Ex.PW6/C and Ex.PW6/F respectively.
During his cross examination on behalf of accused persons, he admitted that SI R.K. Maan did not sign in column no. 3 of register no.19 at the time of deposit of pullandas in the Malkhana. He also deposed that entry at Sr. no. 1184 Ex.PW6/A was made by two different pens as also that the entry was made by his assistant whose name he could not disclose during trial.
He also admitted that no date is mentioned in copies of R.C. No. 35/21/04 and 36/21/04 Ex.PW6/B and Ex.PW6/E. He also admitted that his signatures appearing in both the said RCs are different and also that his handwriting is not there in both the RCs.
PW8 HC Jagmal Singh: This witness was working as Constable in SO Branch of Additional DCP, NorthWest District. He exhibited the sanction U/s 39 Arms Act for prosecuting accused Parveen @ Sonu as granted by Competent Authority on 22.05.2004, as Ex.PW8/A. During cross examination, he deposed that he had never worked with the then Additional DCP who had granted sanction Ex.PW8/A. He admitted that Ex.PW8/A was not passed in his presence.
PW9 ACP (Dr.) Rakesh Bansal: This witness has proved his complaint U/s 195 Cr.P.C. for prosecuting both the accused persons in respect State V/s Parveen Kr. @ Sonu & Anr & State Vs. Parveen @ Sonu. ("Acquitted") Page 11 of 26 FIR No. 123/04; U/s 186/353/307/411/34 IPC & 25/27 Arms Act; & FIR No. 124/04; 25/27 Arms Act; P.S. Narela D.O.D.: 28.08.2014 of offence U/s 186 IPC as Ex.PW9/A. During cross examination, he denied the suggestion that complaint Ex.PW9/A was given by him in a mechanical manner and without actually going through the records of the case.
PW10 Ct. Naresh Kumar: This witness had deposited pullandaas of both the cases in the office of FSL, Rohini on 30.04.2004. He deposed that there was no tampering with the pullandas during the period of their custody with him.
During cross examination, this witness could not disclose about his departure and arrival entry of 30.04.2004.
PW11 Sh. Puneet Puri, Senior Scientific Officer (Ballistic ):
This witness deposed that he had examined the exhibits of case FIR No. 124/04 in FSL, Rohini. He had conducted test fire of cartridge through country made pistol which were taken out from the sealed parcel and came to the conclusion that country made pistol was a fire arm and cartridge was an ammunition as defined in Arms Act. He proved his report in this regard as Ex.PW11/A. During cross examination, he denied the suggestion that he had not examined the said exhibits and had prepared the report Ex.PW11/A in a mechanical manner.
ARGUMENTS ADVANCED AND CASE LAW CITED While opening the arguments, Ld. Addl. PP submitted that four police officials namely HC Raj Pal (PW2), Ct. Satish (PW4), Ct. Ramesh and State V/s Parveen Kr. @ Sonu & Anr & State Vs. Parveen @ Sonu. ("Acquitted") Page 12 of 26 FIR No. 123/04; U/s 186/353/307/411/34 IPC & 25/27 Arms Act; & FIR No. 124/04; 25/27 Arms Act; P.S. Narela D.O.D.: 28.08.2014 Ct. Shiv Bodh Singh (PW3) of P.S. Narela, all of whom were public servants within the meaning of Section 21 IPC, were on official duty at DSIDC Narela on 23.03.2004 when the incident in question took place. He argued that out of those four police officials, three of them have been produced during trial i.e. PW2 to PW4 and all three of them have supported the case of prosecution by deposing on identical lines and accused persons could not impeach their testimonies during cross examination.
He further argued that both the accused persons had used criminal force against those police officials and also prevented them in the discharge of their official duties. The accused also attempted to kill the police official by firing at the police party, as per the submission made by ld. Additional PP for State. Therefore, he contended that prosecution has been able to establish the charges levelled against the accused persons in the present case.
On the other hand, ld. defence counsel argued that prosecution has failed to prove its case against any of the accused persons beyond doubt. In support of said argument, he referred to the relevant portions of the testimonies of prosecution witnesses, more particularly those of PW2 to PW4, in order to bring home the point that there are material contradictions appearing on record, which create reasonable doubt in the case of prosecution. Ld. defence counsel also argued that sanction U/s 39 Arms Act for prosecuting the accused persons as available on record, are not in accordance with law as same are shown to have granted by Competent Authority, even without perusal of FSL results which were provided by FSL State V/s Parveen Kr. @ Sonu & Anr & State Vs. Parveen @ Sonu. ("Acquitted") Page 13 of 26 FIR No. 123/04; U/s 186/353/307/411/34 IPC & 25/27 Arms Act; & FIR No. 124/04; 25/27 Arms Act; P.S. Narela D.O.D.: 28.08.2014 Authority at subsequent point of time.
In case FIR No. 123/04, both the accused persons have been charged with offences U/s 186/353/307/34 IPC and Section 25/27 Arms Act. In both the cases, consolidated charge U/s 186/353/307/34 IPC & Sec. 25/27 Arms Act has been framed against both the accused persons.
It is needless to mention here that in order to bring home the charge in respect of offence U/s 186/34 IPC, the prosecution was required to prove the following ingredients:
a). That the complainant and/or any other aggrieved person was / were public servants within the meaning of section 21 IPC.
b). Said public servants were performing their official duty at the time of incident; and
c). Those public servants were obstructed or prevented from discharging their public functions by the accused. In addition thereto, there is also a requirement under the law that complaint in writing of concerned public servant or of some other public servant to whom the complainant/ victim is administratively subordinate, shall also be filed before the Court in respect of offence U/s 186 IPC as stipulated by Section 195(1)(a)(i) Cr.P.C. without which no cognizance can be taken by the Court After taking into consideration the material available on record and the evidence, oral as well as documentary, produced by prosecution State V/s Parveen Kr. @ Sonu & Anr & State Vs. Parveen @ Sonu. ("Acquitted") Page 14 of 26 FIR No. 123/04; U/s 186/353/307/411/34 IPC & 25/27 Arms Act; & FIR No. 124/04; 25/27 Arms Act; P.S. Narela D.O.D.: 28.08.2014 during trial, Court finds that there is no iota of doubt that PW2 to PW4 besides PW Ct. Ramesh were public servants in terms of Section 21 IPC. However, there is no cogent evidence proved on record to show that all the said four police officials were actually on official duty at the alleged date, time and place. In other words, there is no piece of evidence led by the prosecution to prove the said fact. Same can also be gathered from the testimony of PW3 Ct. Shiv Bodh Singh who deposed during cross examination that there was no written order passed on that day regarding his duty for checking the vehicles at the spot. PW3 also claimed that he did not make any entry in any register regarding his duty at the spot. In this regard, the relevant portion of the testimony of PW4 Ct. Satish is also relevant whereby he deposed during cross examination conducted on 21.11.2013 that there was no written order passed by his senior officer of his duty of checking the vehicles at anti robbery and anti snatching picket. Although, he tried to wriggle out of the same by claiming that there was an oral direction by the SHO but said explanation given by him is nothing but an afterthought story put forth by him as it needs no emphasis that whenever any police official leaves the police station for any official work, it is mandatory to make appropriate entry, which is known as 'departure entry' in relevant Roznamcha maintained for said purpose in every police station. PW2 HC Rajpal has also admitted this fact that record of picket duty is maintained. PW4 Ct. Satish admitted during cross examination that he did not make any departure entry when he had left PS Narela on that day. PW2 HC Rajpal has also admitted State V/s Parveen Kr. @ Sonu & Anr & State Vs. Parveen @ Sonu. ("Acquitted") Page 15 of 26 FIR No. 123/04; U/s 186/353/307/411/34 IPC & 25/27 Arms Act; & FIR No. 124/04; 25/27 Arms Act; P.S. Narela D.O.D.: 28.08.2014 during cross examination that there is no document available on judicial file showing that they were on picket duty on alleged date, time and place.
Not only this, the complaint U/s 195 Cr.P.C. Ex.PW9/A is also not a valid complaint as stipulated by Section 195(1)(a)(i) Cr.P.C. for the simple reason that said complaint was never filed before the Court of Law after the alleged incident till the filing of chargesheet. It appears that said complaint Ex.PW9/A had been simply tagged alongwith the chargesheet which is not proper and in accordance with law. While taking this view, I am also fortified by the judgment of our own High Court in the judgment reported at '1984 (7) DRJ 248'.
There is another reason due to which said complaint Ex.PW9/A is not considered to be valid complaint in the eyes of law. The bare perusal of said complaint itself would reveal that there is no prayer made therein either to prosecute the accused persons in respect of offence U/s 186 IPC or to initiate appropriate proceedings against them for the said offence. Thus, the said complaint does not meet the requirement of law as envisaged by Section 195(1)(a)(i) Cr.P.C.
In the judgment reported at '1996 III AD (Delhi) 96', it has been held by our own High Court that cognizance in respect of offence U/s 186 IPC can be taken only on written complaint U/s 195 Cr.P.C. The requirement of law is that there has to be properly drafted complaint within the meaning of Section 195(1)(a)(i) Cr.P.C. and same has been validly instituted before the Court of Law, which is not the case herein.
State V/s Parveen Kr. @ Sonu & Anr & State Vs. Parveen @ Sonu. ("Acquitted") Page 16 of 26 FIR No. 123/04; U/s 186/353/307/411/34 IPC & 25/27 Arms Act; & FIR No. 124/04; 25/27 Arms Act; P.S. Narela D.O.D.: 28.08.2014 For the reasons mentioned hereinabove, Court while agreeing with the submissions made by ld. defence counsel, is of the view that offence U/s 186/34 IPC has not been proved against either of the accused persons.
Now, I shall discuss about the offence punishable under Section 353/34 IPC. In order to prove the said offence, it was essential for the prosecution to prove the following ingredients:
x). That the complainant and/or any other aggrieved person was / were public servants within the meaning of section 21 IPC;
y). Said public servants were performing their official duty at the time of incident; and z). The accused either assaulted or used criminal force to any of those public servants while he or she was executing his/her duty as such public servant, or with intent to prevent or deter such public servants from discharging the duty.
Likewise, in order to establish the charge in respect of offence U/s 307/34 IPC, the prosecution was required to establish that the accused persons had committed any act with such intention or knowledge and under such circumstances that if by their said act, they would have caused death of any person, they would have been guilty of murder.
As already discussed hereinabove, the evidence on the issue that PW2 to PW5 were on official duty at the alleged date, time and place, is State V/s Parveen Kr. @ Sonu & Anr & State Vs. Parveen @ Sonu. ("Acquitted") Page 17 of 26 FIR No. 123/04; U/s 186/353/307/411/34 IPC & 25/27 Arms Act; & FIR No. 124/04; 25/27 Arms Act; P.S. Narela D.O.D.: 28.08.2014 lacking in the present case. Moreover, there are various material contradictions in the testimonies of PW2 to PW4 as also the testimonies of other police witnesses more particularly PW12 HC Azad Singh and PW13 Inspector R.K Maan. Some of those material contradictions can be noted down as under:
Firstly, PW2 HC Raj Pal deposed during chief examination that accused Parveen @ Sonu opened window of the driving seat area and caused injury to Ct. Satish (PW4). However, PW3 Ct. Shiv Bodh Singh claimed during chief examination that said accused opened the door of the car forcefully and pushed towards Ct. Satish (PW4) due to which Ct. Satish (PW4) fell down. However, PW3 nowhere claimed that Ct. Satish (PW4) had sustained any injury whatsoever. Even otherwise, there is nothing on record to show that Ct. Satish (PW4) was ever got medically examined from any hospital after the alleged incident. No MLC of Ct. Satish has been placed on record by the prosecution what to say of proving the same during trial. PW2 HC Raj Pal has admitted during cross examination recorded on 01.02.12 that Ct. Satish(PW4) was not medically examined as he had not received any injury.
Secondly, PW2 HC Raj Pal claimed that no public person gathered at the spot after the incident of firing which is again contrary to the statement of PW3 Ct. Shiv Bodh Singh who testified during cross examination that no public person was asked to join the investigation, meaning thereby that public persons were available there. This fact can also State V/s Parveen Kr. @ Sonu & Anr & State Vs. Parveen @ Sonu. ("Acquitted") Page 18 of 26 FIR No. 123/04; U/s 186/353/307/411/34 IPC & 25/27 Arms Act; & FIR No. 124/04; 25/27 Arms Act; P.S. Narela D.O.D.: 28.08.2014 be seen from the relevant portion of cross examination of PW2 recorded on 12.01.12 wherein he deposed that during their stay, many public persons had passed through the spot.
Thirdly, PW2 HC Rajpal claimed that after the alleged incident of firing, no passing vehicle was stopped at the spot and no effort was made to ask any public person to join the investigation as no public person was available. PW3 Ct. Shiv Bodh Singh contradicted the said portion of testimony of PW2, when he testified that the spot was a busy place and no effort was made by IO to join any public person during the investigation.
Fourthly, PW2 HC Raj Pal deposed that he had fired two rounds in the air while challenging the accused persons which is contrary to the testimony of PW3 Ct. Shiv Bodh Singh as he testified during cross examination recorded on 23.7.12 that HC Raj Pal had fired only once.
Fifthly, PW2 HC Raj Pal deposed during cross examination recorded on 18.04.13 that IO had put distinct mark on both the country made pistols recovered from the accused persons. Same is again contrary not only to the case of prosecution but also contrary to the testimony of PW12 HC Azad Singh and PW13 Inspector R.K Maan who deposed that no distinct mark of identification was put on the pistols. It is also quite apparent from perusal of seizure memos Ex PW4/C(in respect of pistol allegedly recovered from accused Parveen) and seizure memo Ex PW3/C(in respect of pistol allegedly recovered from accused Rajbir) that there is no mention in both the said memos that any distinct mark was put on the said pistols. State V/s Parveen Kr. @ Sonu & Anr & State Vs. Parveen @ Sonu. ("Acquitted") Page 19 of 26 FIR No. 123/04; U/s 186/353/307/411/34 IPC & 25/27 Arms Act; & FIR No. 124/04; 25/27 Arms Act; P.S. Narela D.O.D.: 28.08.2014 In this regard, reference should also be made to the relevant part of the cross examination of PW2 HC Raj Pal recorded on 01.02.12 wherein he has admitted that there is no distinguish mark appearing on both the pistols recovered in the case which may differentiate as to which pistol was recovered from which accused.
Sixthly, PW2 HC Raj Pal deposed that only one number plate of DBB 5573 was recovered from inside Maruti 800 car bearing number plate of HR26 U 0404 which is also contrary to the case of prosecution as well as to the testimonies of other prosecution witnesses who claimed that two number plates of DBB 5573 were recovered on checking of Maruti 800 car.
Seventhly, PW4 HC Satish deposed during cross examination recorded on 21.11.13 that there was neither any shops nor factories situated near the spot whereas PW3 Ct. Shiv Bodh Singh deposed that there was a tea shop situated at a distance of 5060 feet from the spot and also that there was a petrol pump situated at five minutes walking distance from the spot.
Eighthly, PW4 HC Satish deposed that the entire writing work was done while sitting on footpath on right hand side. Same is again contrary to the testimonies of other prosecution witnesses who have claimed that the writing work was done while sitting on wooden table/stool brought from nearby tea shop.
As is quite evident from the above discussion, both the accused are claimed to have been apprehended by HC Raj Pal(PW2) alongwith Ct Shiv Bodh Singh(PW3) and Ct. Satish(PW4) at DSIDC Chowk, near SRHC State V/s Parveen Kr. @ Sonu & Anr & State Vs. Parveen @ Sonu. ("Acquitted") Page 20 of 26 FIR No. 123/04; U/s 186/353/307/411/34 IPC & 25/27 Arms Act; & FIR No. 124/04; 25/27 Arms Act; P.S. Narela D.O.D.: 28.08.2014 Hospital at about 7.55 P.M. It has come on record during testimonies of prosecution witnesses more particularly in the testimony of PW3 Ct. Shiv Bodh Singh that there was tea shop situated at a distance of 5060 feet from the spot and also that there was a petrol pump situated at five minutes walking distance from the spot but no effort was made either to join tea vendor or any employee of said petrol pump either during recovery proceedings or even thereafter. PW5 HC Kuldeep has also stated during cross examination recorded on 29.08.13 that the place of incident was a thorough fare and residential area was also situated at some distance. He also admitted that there were factories situated near the place of incident but still, no sincere efforts are shown to have been made by any of the police witnesses to join the proceedings allegedly conducted at the spot. It is really strange to note that stool/table was got arranged from tea vendor for conducting the writing work but still neither PW12 nor PW13 deemed it appropriate to join said tea vendor during the proceedings. PW12 HC Azad Singh claimed during cross examination that 4050 public persons were available at a distance of about 160 feet from the spot and he had requested 45 public persons to join the proceedings but none agreed and they also did not disclose their names and addresses. Same is nothing but a mechanical excuse given by him for not joining public person during the proceedings which is apparent from the fact that he did not prepare any memo regarding refusal of public persons to join the proceedings and he also did not serve any written notice upon them. In this back drop, Court finds merit in the argument of Ld defence counsel that prosecution case cannot be said to be free from doubt. At this juncture, it State V/s Parveen Kr. @ Sonu & Anr & State Vs. Parveen @ Sonu. ("Acquitted") Page 21 of 26 FIR No. 123/04; U/s 186/353/307/411/34 IPC & 25/27 Arms Act; & FIR No. 124/04; 25/27 Arms Act; P.S. Narela D.O.D.: 28.08.2014 would be pertinent to refer to some case laws.
In a case law reported as Anoop Joshi v/s State reported at 1992 (2) C.C. Cases 314(HC), Hon'ble High Court of Delhi has observed as under:
"18. It is repeatedly laid down by this court that in such cases it should be shown by the police that sincere efforts have been made to join independent witnesses. In the present case, it is evident that no such sincere efforts have been made, particularly when we find that shops were open and one or two shopkeepers could have been persuaded to joint he raiding party to witness the recovery being made from the appellant. In case any of the shopkeepers had declined to join the raiding party, the police could have later on taken legal action against such shopkeepers because they could not have escaped the rigours of law while declining to perform their legal duty to assist the police in investigation as a citizen, which is an offence under the IPC."
In the matter titled as Roop Chand v/s The State of Haryana reported at 1999(1) C.L.R 69, Hon'ble Punjab & Haryana High Court held as under:
3. I have heard the learned counsel for the parties and gone through the evidence with their help. The recovery of illicit liquor was effected from the possession of the petitioner during noon time and it is in the evidence of the petitioner witnesses that some witnesses from the public were available and they were asked to join the investigation. The explanation furnished by the prosecution is that the independent witnesses were asked to join the investigation but they refused to do so on the ground that their joining will result into enmity between them and the petitioner.
4. It is well settled principle of the law that the Investigating Agency should join independent witnesses at the time of recovery of contraband articles, if they are available and their failure to do so in such a situation casts a shadow of doubt on the prosecution case. In the present case also State V/s Parveen Kr. @ Sonu & Anr & State Vs. Parveen @ Sonu. ("Acquitted") Page 22 of 26 FIR No. 123/04; U/s 186/353/307/411/34 IPC & 25/27 Arms Act; & FIR No. 124/04; 25/27 Arms Act; P.S. Narela D.O.D.: 28.08.2014 admittedly the independent witnesses were available at the time of recovery but they refused to associate themselves in the investigation. This explanation does not inspire confidence because the police officials who are the only witnesses examined in the case have not given the name and addresses of the persons contacted to join. It is a very common excuse that the witnesses from the public refused to join the investigation. A police officer conducting investigation of a crime is entitled to ask anybody to join the investigation and on refusal by a person from the public the investigating Officer can take action against such a person under the law. Had it been a fact that the witnesses from the public had refused to join the investigation, the Investigating Officer must have proceeded against them under the relevant provisions of law. The failure to do so by the police officer is suggestive of the fact that the explanation for nonjoining the witnesses from the public is an after thought and is not worthy of credence. All these facts taken together make the prosecution case highly doubtful."
In another matter titled as Sadhu Singh V/s State of Punjab reported at 1997(3) Crimes 55, Hon'ble Punjab & Haryana High Court observed as under: "5. In a criminal trial, it is for the prosecution to establish its case beyond all reasonable doubts. It is for the prosecution to travel the entire distance from may have to must have. If the prosecution appears to be improbable or lacks credibility the benefit of doubt necessarily has to go to the accused.
6. In the present case, the State examined two witnesses namely, Harbans Singh ASI who appeared as PW1 and Kartar Singh PW2. Both the witnesses supported the prosecution version in terms of the recovery of opium from the person of the petitioner, but there was no public witness who had joined. It is not necessary in such recoveries that public witnesses must be joined, but attempt must be made to join the public witnesses. There can be cases when public witnesses are reluctant to join or are not available. All the same, the prosecution must show a genuine attempt having been made to join State V/s Parveen Kr. @ Sonu & Anr & State Vs. Parveen @ Sonu. ("Acquitted") Page 23 of 26 FIR No. 123/04; U/s 186/353/307/411/34 IPC & 25/27 Arms Act; & FIR No. 124/04; 25/27 Arms Act; P.S. Narela D.O.D.: 28.08.2014 a public witness or that they were not available. A stereotype statement of nonavailability will not be sufficient particularly when at the relevant time, it was not difficult to procure the service of public witness. This reflects adversely on the prosecution version".
As such it could be said that IO did not make sincere efforts to join public witnesses before starting initial investigation of the present case and this failure on the part of the IO in view of above said case laws creates a very serious doubt in the prosecution version.
The case property and accused remained in control of police officials till the case property was deposited in the malkhana. Hence tampering with the case property cannot be ruled out as the seal remained all along with the police officials. It has been admitted by police witnesses that no handing over or taking over memo in respect of seal was prepared.
There is another reason which create reasonable doubt in the case of prosecution. PW12 HC Azad Singh admitted during cross examination that he had not filled FSL Form at the spot. He went to the extent of saying that he had not filled up FSL Form during the entire investigation of the case but he improved himself subsequently by claiming that he had filled up FSL Form during the course of investigation but he could not disclose the date thereof.
There is one more reason which persuades this Court to give benefit of doubt to both the accused persons. PW12 HC Azad Singh admitted during cross examination that he had obtained Sanction U/s 39 Arms Act Ex PW8/A for prosecuting accused Parveen from Additional DCP N/W prior to the receipt of FSL result Ex PW11/A and also that the said FSL result was not State V/s Parveen Kr. @ Sonu & Anr & State Vs. Parveen @ Sonu. ("Acquitted") Page 24 of 26 FIR No. 123/04; U/s 186/353/307/411/34 IPC & 25/27 Arms Act; & FIR No. 124/04; 25/27 Arms Act; P.S. Narela D.O.D.: 28.08.2014 placed before concerned DCP at the time of granting sanction U/s 39 Arms Act. However, the Sanction U/s 39 Arms Act Ex PW8/A states that the Competent Authority had considered the Ballistic Report of FSL, GNCT Delhi which is totally unexplainable.
Likewise, PW13 Inspector R.K Maan claimed that he had obtained Sanction U/s 39 Arms Act Ex PW13/C from the then Additional DCP N/W on 12.06.04 and FSL result Ex PY was filed on record of the Court after filing of the charge sheet. The sanction U/s 39 Arms Act Ex PW13/C also mentions the fact that FSL result had not been placed before Competent Authority at the time of granting the said sanction. That being so, Court fails to understand as to what was the basis on which the then Additional DCP N/W was satisfied that there was contravention of Section 3 of Arms Act on the part of accused so as to grant requisite sanction as stipulated by Section 39 Arms Act without which accused could not have been prosecuted in respect of offence U/s 25 Arms Act.
In the matter titled as State of Himachal Pradesh v/s Dharam Dass reported at 1992(1) C.L.R, it has been ruled that the prosecution has to prove the guilt against beyond all reasonable doubt and that too by leading independent, reliable and unimpeachable evidence. There is no controversy to the proposition that the accused is entitled to the benefit of every doubt occurring in the prosecution case.
In another case titled as Thakorbhi Viribhai Vasava & others V/s The State of Gujarat reported at Crime Vol (1) 1987/37 delivered by State V/s Parveen Kr. @ Sonu & Anr & State Vs. Parveen @ Sonu. ("Acquitted") Page 25 of 26 FIR No. 123/04; U/s 186/353/307/411/34 IPC & 25/27 Arms Act; & FIR No. 124/04; 25/27 Arms Act; P.S. Narela D.O.D.: 28.08.2014 Hon'ble Gujarat High Court (D.B), it has been ruled down that in criminal trials even a slightest doubt raised in favour of accused ordinarily entitles the accused to get acquittal.
In view of aforesaid discussion, Court is of the view that prosecution has failed to establish the charges levelled against both the accused in case FIR no. 123/04 as also the charge levelled against accused Parveen Kumar @ Sonu in case FIR no. 124/04 beyond shadow of doubt. Consequently, both the said accused persons are hereby acquitted of the charges levelled against them by giving them benefit of doubt. A signed copy of this judgment is directed to be placed in the judicial file of case FIR no. 124/04 mentioned supra and both the files be consigned to record room.
Announced in open Court today
dt. 28.08.2014 (Vidya Prakash)
Additional Sessions Judge04
North District, Rohini Courts,
Delhi
State V/s Parveen Kr. @ Sonu & Anr & State Vs. Parveen @ Sonu. ("Acquitted") Page 26 of 26