Delhi District Court
U/Sec.: 399/402 Ipc & vs Raju on 2 July, 2010
1
IN THE COURT OF SHRI R.K. GAUBA
ADDITIONAL SESSIONS JUDGE03 (CENTRAL) DELHI
Sessions Case No.140/06
ID No.: 02401R0473922006 FIR No. 79/06
State PS: Rajinder Nagar
U/Sec.: 399/402 IPC &
25/54/59 A.Act
Versus
1.Raju, S/o Nathni Shah, R/o H.No 5463, Gali No. 6, Accused No. 1 Near Chandhawal, Roop Nagar, Delhi (Proclaimed Offender)
2. Chhanga Lal, S/o Ram Khilawan, R/o H.No. 509, Badi Bazar, Triveni Ganj, Bilhaur, Kanpur, U.P. Accused No.2
3. Rabbani, S/o Subhrati, R/o Village Jaita Pur Bajar, P.S.Borudi, Baharaich, U.P. Accused No. 3
4. Rafiq, S/o Jal Mohd., R/o Village Islampur, AS & District Sita Garhi, Bihar Accused No. 4
5. Ram Narain, S/o Phool Badan, R/o VillageChuravanpur, P.S.Dulla Pura, DistrictGhazipur, U.P. Accused No. 5 Date of institution : 25.05.2006 SC. No. 140/06 1/16 2 Judgment Reserved on : 04.06.2010 Date of Decision : 02.07.2010 J UD G M E N T
1. This prosecution arises out of FIR No.79/2006 of Police Station, Rajinder Nagar, registered on 15042006 on the Ruqqa (exhibit PW 8/A) of ASI, Mohar Singh (PW8) of Anti Auto Theft Squad (AATS) of Central police district.
2. According to the prosecution case, PW8 along with Head Constable Resham Pal (PW7), Head Constable Ravinder Singh (PW
10), Head Constable Nurruddin (PW 6), Constable Jagdish (PW4) and Constable Ratan Pal (PW5), all of AATS, were on patrolling duty for crime prevention in the area of Police Station, Rajinder Nagar near Sir Ganga Ram Hospital at about 2 P.M. on 15042006. It is alleged that PW8 received a secret information that 56 persons were sitting behind Nanaksar Gurudwara in the forest area along the Ridge Road having in their possession illegal weapons and planning to commit a dacoity in some residential property of Rajinder Nagar.
3. According to the prosecution version, PW8 briefed the accompanying police personnel and formed a reading party along with the secret informer and set out for the area near Gurudwara Nanaksar. It is claimed that, on the way, PW8 requested 56 public persons to join the reading party but no one agreed to do so on some excuse or the other. The police party thereafter reached Gurudwara Nanaksar at about SC. No. 140/06 2/16 3 2.30 P.M. when PW7 along with the secret informer were instructed to go near the place, where the suspects were siting, to over hear their conversation. At about 2.40 P.M. PW7 is stated to have returned with the secret informer and told PW8 that 5 persons were sitting in the bushes close to the wall of the wooded area and one person amongst them was being addressed as Chhanga Ustad. The person named Chhanga Ustad was telling his associates that their attempt to commit crimes in buses was not bearing fruit and there was also a risk of getting apprehended by the public and, therefore, they should commit dacoity in same residential property which might fetch good returns. The said leader of the group is also alleged to have been encouraging his associates to use weapons in the said planned dacoity in case there was any resistance faced during the crime.
4. According to the prosecution version, PW8 then divided the raiding party into two groups and gave them the necessary instructions. Thereafter, at about 3 P.M. under the cover of the Gurudwara boundary wall and the bushes, the group of said 5 persons was encircled and informed loudly that they had been surrounded by the police party and that no one should try to run away. It is alleged that the said 5 persons started running in different directions but were apprehended. The five persons so apprehended are the accused persons who were sent for trial and gave their names and descriptions as Raju, S/o Nathni Shah, R/o H.No 5463, Gali No. 6, Near Chandhawal, Roop Nagar, Delhi (Accused SC. No. 140/06 3/16 4 No. 1), Chhanga Lal, S/o Ram Khilawan, R/o H.No. 509, Badi Bazar, Triveni Ganj, Bilhaur, Kanpur, U.P. (Accused No. 2), Rabbani, S/o Subhrati, R/o Village Jaita Pur Bajar, P.S.Borudi, Baharaich, U.P. (Accused No. 3), Rafiq, S/o Jal Mohd., R/o Village Islampur, PS & District Sita Garhi, Bihar (Accused No. 4) and Ram Narain, S/o Phool Badan, R/o VillageChuravanpur, P.S.Dulla Pura, DistrictGhazipur, U.P. (Accused No. 5).
5. According to the prosecution case Accused No. 1 Raju (hereinafter, "A1") was apprehended by PW8 and on general search being taken he was found having in his possession a button actuated knife with total length of 23.5 cm and blade of 11.2 cm, kept under the belt on the right side. Accused No. 2 Chhanga Lal (hereinafter, "A2") was apprehended by PW7 and on his general search being taken was found having in his possession on button actuated knife with total length of 24.7 cm and blade of length of 11.4 cm kept in the right side pocket of his trousers. Accused No. 3 Rabbani (hereinafter, "A3") was apprehended by PW6 and was found having in his possession red chilly powder kept in a small transparent polythene packet in the right side pocket of his trousers. Accused No. 4 Rafiq (hereinafter, "A4") was apprehended by PW10 with assistance of PW 5 and at the time of he being apprehended he was found having in his right hand a cycle chain with iron rings on both ends, its total length being 4"11'. It is alleged that Accused No. 5 Ram Narain (hereinafter, "A5") was apprehended by SC. No. 140/06 4/16 5 PW4 and on his general search being taken he was found having in his possession red chilly powder kept in a small transparent polythene in the right side pocket of his trousers.
6. PW8 prepared sketches of the two knives one recovered from A1 and other from A2, and then put them in separate parcels each being sealed with the seal of MS and thereafter taken into police possession vide memos (exhibit PW6/A and exhibit 7/B respectively). The cycle chain allegedly seized from A4 was also similarly put in a separate parcel and sealed with the seal of MS and then taken into police possession vide seizure memo (exhibit PW5/A). The packets containing chilly powder separately recovered allegedly from the possession of A3 and A5 were also kept in separate parcels, each sealed with the seal of MS and taken into police possession vide seizure memos (exhibit PW4/B and exhibit PW 4/A respectively).
7. PW8 then drew up his Ruqqa (exhibit 8/A) which was sent by him from the place of police action at 4.30 P.M. on 15042006 through PW10 to the police station for registration of FIR. In the police station, FIR (exhibit PW2/A) was registered by Head Constable Harinder (PW
2) who was working at the relevant time as the duty officer, who also made endorsement (exhibit PW2/B) on Ruqqa to this effect.
8. It is the prosecution case that the investigation was thereafter handed over to SI Jagdish Singh (PW3) who took over the case property and arrested the five persons apprehended by PW8 vide separate memos SC. No. 140/06 5/16 6 (exhibit PW7/D1 to D5), after their personal search had been taken vide separate personal search memos (exhibit PW3/A to E)
9. During investigation, the IO collected copies of DD No. 9 recorded at 12.05 PM of 15042006 in AATS (of Central district) (exhibit PW 1/A) vide which PW 8 had set out for the patrolling duty; DD No. 11 recorded at 4 P.M. on 15042006 in AATS (Central district ) (exhibit PW1/B and exhibit PW1/D) recorded on information being conveyed about the 5 persons being apprehended in the midst of planning dacoity and DD No. 13 recorded at 10.20 PM on 15042006 in AATS (Central district) (exhibit PW 1/C) on return of PW8 AATS.
10. During investigation, all the 5 arrestees were taken to main casuality of Lok Nayak Hospital, New Delhi by the PW3, the investigating officer (hereinafter 'the IO'), where their medical examination was done. The IO also prepared a site plan of the place where arrested persons were apprehended in the circumstances mentioned above.
11. On the basis of aforestated facts and circumstances, the police had registered the FIR for offences under section 399/402 of Indian Penal Code (IPC) and under section 25 of Arms Act. The investigation was concluded and, thereafter, charge sheet was laid in the court of Metropolitan Magistrate (MM) by SHO, Police Station, Rajinder Nagar on 25052006, seeking trial of the five Accused persons for the aforementioned offences. The MM complied with the procedure SC. No. 140/06 6/16 7 contained in section 207 of the Code of Criminal Procedure (CrPC) and thereafter committed the case to Sessions vide his order dated 2010 2006.
12. Upon committal, the case was made over by the learned Sessions Judge to my predecessor for trial. My learned Predecessor considered the question of charge and thereafter passed an order on this subject on 13112006. Charge was framed for offences under section 399 and 402 IPC against all the five Accused persons. Separate Charges for offences under section 25 Arms Act were also framed against A1 and A2 with regard to the possession of the knives. All the five Accused persons pleaded not guilty to the said charges and thereafter the case was listed for trial, with prosecution being called upon to adduce offence.
13. The prosecution, in the course of the trial, examined the following 10 witnesses:
(i) HC Chand Ram (PW1)
(ii) HC Harinder (PW2)
(iii) SI Jagdish Singh (PW3)
(iv)Ct. Jagdish (PW4)
(v)Ct. Rattan Lal (PW5)
(vi)HC Nuruddin (PW6)
(vii)HC Resham Pal (PW7)
(viii)ASI Mohar Singh (PW8)
(ix)HC Ram Charan (PW9) SC. No. 140/06 7/16 8
(x)HC Ravinder Singh (PW10)
14. The prosecution closed its evidence on 26082009. Thereafter, the case was listed for statements of the accused persons under section 313 CrPC, which were recorded on 16092009.
15. In their respective statements under section 313 CrPC, all the Accused persons denied the evidence of the prosecution as incorrect, particularly with regard to they being apprehended in the circumstances mentioned above. Each accused claimed to be innocent and falsely implicated. They declined to avail of opportunity to lead evidence in defense. The case, thus, was listed for final arguments to be heard on 18092009.
16. On 18092009, however, A1 jumped bail and failed to appear this resulting in duress process being issued against him. A1 could not be apprehended in spite of repeated non bailable warrants. His surety appeared in response to notice under section 446 CrPC on 06112009 and expressed inability to produce him. Therefore, penalty of the surety bond was imposed which was duly paid by the surety. Thereafter, process under section 82/83 CrPC was issued and on the basis of reports and the statement of the process server Head Constable Nem Das (CW1), A1 was declared proclaimed offender.
17. I have heard arguments on behalf of the State and A2 to A4. I have gone through the record. I have given my considered thoughts to the relevant contentions urged before me on either side, in the light of SC. No. 140/06 8/16 9 evidence led and the material placed before this court.
18. Some salient features of the prosecution evidence need to be taken note of at length. Exhibit PW1/A, the copy of DD entry No. 9 recorded at 12.05 PM of 15.04.06 in the office of AATS of Central district does show the departure of PW8 accompanied by PW7, PW10, PW6, PW 4 and PW5 for patrolling duty. Apart from the papers that were prepared at the spot, the place of alleged apprehension of the Accused persons, the prosecution also relies on exhibit PW1/B (as also exhibit PW1/D). Copy of DD No. 11 recorded at 4 PM on 15.04.2006 in office of AATS of Central district, on telephonic information by PW8 about the 5 persons having been arrested in the midst of planning dacoity.
19. PW8 has deposed generally along the line of the prosecution story in which regard the evidence of PW4, PW5, PW6, PW7 and PW10 seeks to lend corroboration. But then, it is necessary to take note of the manner in which these witnesses, all police personnel, have testified, there being no independent public witness joined at any stage, this on the usual plea that public persons, though requested, did not oblige the head of the raiding party by agreeing to be a witness.
20. Even at this stage it may be observed that the public persons who are stated to have been requested by the raiding party head, PW8, are described as 'passersby'. There is nothing available on record to indicate as to who the said 'passerby' were or further, as to whether they were local residents, leave alone they being respectable local residents. SC. No. 140/06 9/16 10
21. PW8 in the course of his statement would depose that he had requested 4/5 'passersby' to join the raid but no one agreed. Thereafter, he had sent PW7 with the secret informer to hear the conversation of the suspects who were sitting behind bushes. His subsequent action would be on the basis of what was brought to his notice by PW7, the solitary witness on that score in as much as for obvious reasons, the secret informer has not been made a prosecution witness.
22. Since the conversation that had allegedly taken place between A2 on one hand and the remaining accused persons on the other was heard first hand only by PW7, his evidence in this regard is the solitary evidence on record. This witness, during his deposition, would state that the group of five was being addressed by A2 who, in turn, was being called by name of Chhanga Ustad. According to him, A2 was telling his companions that there was apprehension of being arrested in crimes in buses so they should try their luck somewhere else from where they would get handsome money and that, if obstructed, they would use their respective weapons. According to PW7, he had informed PW8 about this scene having been witnessed by him on which PW8 formed the raiding party dividing it into two groups with the help of which the place was raided from two directions at about 3 P.M.
23. All the witnesses who are stated to be the members of the raiding party speak about sequence of events against this back drop. PW8 has deposed that knives were found carried by A1 and A2. He proved the SC. No. 140/06 10/16 11 sketches of the knives as exhibit PW7/C and exhibit PW7/A respectively and the knives as exhibit P4 and exhibit P5 respectively. He testified that he had kept the two knives in separate parcels which were sealed with the seal of MS and then taken in possession vide memos exhibit PW6/A and exhibit PW7/B respectively. During his statement (examinationinchief), he would not dilate on the facts as to which of the accused persons was apprehended by which members of the raiding party. It was during cross examination that he deposed that A1 was apprehended by him while A2 was apprehended by PW7. He initially stated A3 was apprehended by PW6 but then changed his statement to testify that A3 was apprehended by PW10. According to him, A5 was apprehended by PW3 and PW5.
24. PW7, on his part, deposed that he had apprehended A2 and had recovered button actuated knife from his possession while A1 was apprehended by PW8. According to him, A4 was apprehended by PW 5 who had recovered the cycle chain from his possession. He identified exhibit PW5 as the knife recovered from A2.
25. PW6 confirmed the prosecution story by deposing that it was he who had caught hold of A3 where after the search of the latter had resulted in recovery of polythene packet containing chilly powder from his trousers pocket.
26. PW5 and PW10 were stated in the prosecution case to have apprehended A4, at which stage he was found having in his possession SC. No. 140/06 11/16 12 the cycle chain which has been proved as exhibit PW3. PW5 deposed about this fact during their respective status. Similarly, PW4 has deposed about he having caught hold of A 5 leading to recovery of chilly powder from his possession.
27. PW4, during his cross examination, testified that after setting out from the office of AATS at 12'o clock noon time till the patrolling party reached near Ganga Ram hospital around 2 P.M. they did not change vehicles. According to him, the entire police party was in civil dress. During cross examination, he stated the accused persons were not challenged before being apprehended. He stated that after the proceedings at the spot, the arrested persons were taken to L&JP hospital in a private vehicle Tata 407 under the supervision of PW8. PW6, under cross examination, confirmed the fact of accused persons having been taken to L&JP hospital for medical check up under the supervision of PW8 in the afore mentioned private vehicle. According to him, he was with the accused persons at that time and had reached the hospital around 9/9.30 P.M.
28. PW6, under cross examination, stated that IO had requested 10 public persons to join the raiding party but no one had agreed to do so. According to him, this police party had left Ranjit Marg (Office of AATS) "for raid" at 12.05 P.M. and had directly reached Rajinder Nagar in which regard departure entry was made by PW8. According to him, 8/10 public persons had been requested to join proceedings even at the SC. No. 140/06 12/16 13 Gurudwara Nanaksar. He stated chilly powder was weighed with the help of scale and weights available in the kit of the IO though he would not remember the weight of powder. He stated that the writing work was done at the spot sitting on the ground and had continued till 6.30 P.M. while PW10 had come back with the copy of FIR at 6.30 P.M.. PW7 during cross examination deposed that the police party had reached the spot after patrolling in the areas of Kamla Market, Pahar Ganj and Karol Bagh. He stated that no public person was joined at Ganga Ram Hospital, nor at Gurudwara Nanaksir and that it was on the way only that some public persons were requested. According to him, the writing work was done at the spot while sitting at the boundary wall near electric pole at a distance of 5/7 steps.
29. PW8, under cross examination stated that writing work was done while sitting under light of electric pole at ridge and that the police party remained there for one or one and a half hour. PW10, during cross examination, deposed that no warning was given to the accused persons about they having been surrounding by police party. As per him, 5/6 persons were requested to join the investigation even after the arrests has been made. He stated that writing work was done while sitting on a chair brought from the near by tent house by PW7 near Gurudwara. He deposed that the servant of the tent house was also requested to join investigation but had refused to do so. According to this witness, the IO had taken the weight of chilly powder with the help of weighing SC. No. 140/06 13/16 14 machine.
30. The medical examination of the five accused persons appears to have been done in Lok Narayan Jai Prakash Hospital, New Delhi, on requests made for the purpose in writing by the IO. As per the said documents, (now mark 'A', mark 'B', mark 'C', mark 'D' and mark 'E'), the said medical examination was done from 10.40 P.M till 11.05 P.M.
31. The above narration of the evidence clearly brings out that the prosecution evidence is highly unreliable, it being full of contradictions, some of which are so grave and material on go to the root of the case. If one goes by the evidence of PW6, the police party led by PW8 had set out even form the police station with the specific objective of conducting a raid. If this were so, the DD entry whereby PW8 recorded the departure was not entirely truthful. PW6 would claim the police party reached Rajinder Nagar directly. If his claim is true that the intention was to conduct a raid, this would be the natural consequence. PW7, who is stated to have been member of the same police party, however, claimed that this group of police personnel came to Rajinder Nagar area after patrolling in different localities like Kamla Market, Pahar Ganj and Karol Bagh etc. Either PW6 or PW7 have not been truthful in their respective statements.
32. Similarly, while PW8 in his formal proceedings (Ruqqa) had stated that he had requested 5/6 'passersby' to join in the raiding party, on the way from the place he received information i.e. Ganga Ram SC. No. 140/06 14/16 15 Hospital to Gurudwara Nanaksar. During his statement, he would generally claim by stating the number of persons so requested were 4 or
5. This difference by itself may not be of any consequence. But, the other witnesses have tried to add new colour to the story which creates doubts about the veracity of the very claim of attempt having been made to rope in independent public witnesses. PW6 put the number of such public persons at 8 to 10 and then added that further 8 to 10 persons were requested to join the raiding party after the police had reached Gurudwara Nanaksar. PW10 gave another twist to the tale by stating that 5 or 6 persons had been requested to join even after arrests had been made. He also claimed that PW8 had recorded the proceedings while sitting on a chair brought from the near by tent house by PW7 and that even a servant of the tent house was requested to join as a witness. This apparently is an improvement in his anxiety to make the case credible. Neither PW7 nor PW8 talk about any tent house or chair brought from the tent house or, for that matter, request made to any servant of the tent house. Moreover, the claim of PW10 about PW8 having used a chair for the purpose of preparing proceedings at the spot is belied by the evidence of the other witnesses including PW7 and PW8 who claim different arrangements in this regard.
33. The documents relating to medical examination of the five accused persons (mark 'A' to mark 'E') rather puncture the prosecution story even further. As mentioned above, the MLC's were prepared SC. No. 140/06 15/16 16 starting at 10.40 P.M. and ending at 11.05 P.M. In the face of this material, PW5 wants the Court to believe that the police party with the accused persons had reached the hospital at 9/9.30 P.M. and then returned to the police station by 10.30 P.M. It is clear that either this witness was not as a member of police party or papers were prepared falsely.
34. The net result of the above whole scale contradictions in the statements of prosecution witnesses render the police story total unworthy of credence, the benefit of doubts arising as a result will have to be extended to the accused persons.
35. In the result, accused no. 2 Chhanga Lal, accused no. 3 Rabbani, accused no. 4 Rafiq and accused no. 5 Ram Narain are acquitted. Accused Rafiq and Accused Raj Narain be released forthwith from judicial custody unless required in any other case. Bail bonds of accused Chhanga Lal and Rabbani are discharged. File be consigned to the record room.
PRONOUNCED & DICTATED IN THE OPEN COURT On 2nd of July, 2010 [R.K. GAUBA] ADDITIONAL SESSIONS JUDGE03 CENTRAL/DELHI SC. No. 140/06 16/16