Delhi District Court
State vs 1. Raj Kumar @ Raju on 8 June, 2016
IN THE COURT OF SH RAJ KUMAR TRIPATHI
ADDL. SESSIONS JUDGE02:SOUTH EAST
SAKET COURT: NEW DELHI
IN RE: ID No.02403R0364802006
SC No.51/13
FIR No.314/06
PS Hazrat Nizamuddin
State Versus 1. Raj Kumar @ Raju
S/o Narpat Singh
R/o Mahepa, PS Sikandrabad,
District Buland Shahar, U.P.
2. Iqbal Ahmed @ Guddu
S/o Shri Raunak Ali
Village Sarsaul, PS Arniya,
Distt. Bulandshahar, U.P.
3. Mehboob Pandey
S/o Mohd. Jaan
R/o Mohalla Mugal Pura,
PS Kotwali, Khurja,
Bulandshahar, U.P.
__________________________________________________________
Date of Institution : 08.08.2006
Date of receipt of file by way
of transfer in this court : 22.03.2013
Date of arguments : 05.05.2016
Date of judgment : 08.06.2016
SC No.51/13 1 of 25
JUDGMENT
1. As per case of prosecution, on 02.05.06, ASI Ravinder (PW3) received information regarding inter state gang of Mehboob Pandey, Iqbal @ Guddu and Raj Kumar, who commit robbery and theft of vehicles. ASI Ravinder, while he was present in his office at Prashant Vihar, Rohini, a secret informer came to his office at about 8 PM and informed him that between 11 to 11:30 PM, Mehboob Pandey, Iqbal @ Guddu and Raj Kumar would come in front of Indraprashta Park on Ring Road. He shared the secret information with his seniors, who directed him to conduct immediate raid. ASI Ravinder constituted raiding party consisting of Inspector K.P. Singh, HC Pavitran, HC Raghvender, HC Rajiv, HC Hashim Ali, Ct. Devender and Ct. G.G. Sukumar. They left for spot in two Qualis Cars, one official and other one private. They came to ISBT via Ring Road. They stopped there at ISBT and requested fourfive passersby to join in the investigation. Except one person, others went away expressing their helplessness and without telling their names and addresses. The person named Aditya Sharma agreed to join the investigation. When they reached near CNG Pump on Ring Road, Opposite Indraprashta Park at 10 PM, all the members of raiding party got down from the Qualis. ASI Ravinder briefed the raiding SC No.51/13 2 of 25 party and all the members of raiding party took their position around and inside both the Qualis. They kept waiting for the accused persons. At around 11:10 PM, one blue colour Esteem Car No.UP16K6038 came from ITO side and the car stopped slightly ahead of their official Qualis. Three persons got down from the Esteeem car and started talking among themselves. The secret informer pointed the members of raiding party towards them and told that they were Raj Kumar, Iqbal @ Guddu and Mehboob. Thereafter, the secret informer left the spot. ASI Ravinder gave signal to the members of raiding party. The accused persons after seeing their movement got suspicious and they sat in the Esteem car. They started fleeing in the said car. The police officials chased them in their official vehicle and the other Qualis also followed the Esteeem car. The Esteem car was stopped beneath Nizamuddin Flyover as they parked their official Qualis in front of the Esteem car and blocked the said car. The other Qualis came from behind and blocked the said Esteeem car from behind. ASI Ravinder got down from Qualis and accused persons were sitting in the Esteem car. He warned them that they were police and asked them to stop there. Raj Kumar, who was sitting on the driver seat asked his accomplice "police hai, Iqbal and Mehboob tum goli chalao". Iqbal is alleged to have taken out SC No.51/13 3 of 25 katta and fired one round upon ASI Ravinder, who bent down and managed to escape. He apprehended Iqbal @ Guddu with the help of Ct. Devender. Accused Mehboob is reported to have got down from the back side door of Esteeem car and started fleeing. HC Hashim Ali chased him. Accused Mehboob Pandey is alleged to have fired shot at HC Hashim Ali, who managed to escape by bending down and Mehboob Pandey escaped from the spot by fleeing towards darkness. Raj Kumar was apprehended by HC Pavitran and HC Rajiv. ASI Ravinder snatched katta from the hand of Iqbal and conducted his search. A live cartridge was recovered from right pocket of his pant. He took out the empty cartridge from katta. HC Hashim Ali handed over him one cartridge which he recovered and which was fired by Mehboob Pandey and empty cartridge fell down. ASI Ravinder prepared sketch of katta, live cartridge and empty cartridge vide memo Ex. PW3/A. He packed the said articles in parcel and affixed seal of RS on it. He seized them vide seizure memo Ex. PW3/B. He prepared sketch of empty cartridge Ex. PW3/C and seized the same vide Ex. PW3/D. He also seized blue colour Esteem car No.UP16K6038 vide seizure memo Ex. PW2/A. Thereafter, he prepared rukka Ex. PW3/A and handed over the same to HC Pavitran for registration of FIR, who went to Police Station SC No.51/13 4 of 25 Hazrat Nizamuddin, got the FIR registered, came back at the spot and handed over copy of FIR and asal tehrir to SI Bhagwati Prasad, who was handed over further investigation in the matter.
2. Matter was investigated as per law. SI Bhagwati Prasad (PW10), IO of the case conducted various stages of investigation in the matter. The accused persons were found involved in the commission of offence in the case. Therefore, on conclusion of investigation, they were charge sheeted to face trial.
3. Accused persons, on their appearance before the court of learned MM, were supplied copy of charge sheet and complete set of documents and thus, compliance of section 207 of The Code of Criminal Procedure, 1973 (in short "Cr.P.C") was made.
4. As the offence under section 307 of The Indian Penal Code, 1860 (in short "IPC") is exclusively triable by the Court of Sessions, therefore, the matter was committed to the Court of Sessions for trial in accordance with law.
5. Prima facie, sufficient material was found to frame charge against accused persons for offence punishable under section 307/186/353/34 IPC. Additionally, sufficient material was also found to frame charge for offence under section 25/27 of The Arms Act against accused Iqbal Ahmed @ Guddu. Therefore, charge for the said offences was framed against accused persons SC No.51/13 5 of 25 to which they pleaded not guilty and claimed trial.
6. In order to bring home the guilt against accused persons, prosecution has examined eleven witnesses. The details of which are given as under: i. ) PW1 ASI Naresh Kumar, the duty officer, is a formal witness of the prosecution. He recorded FIR No.314/06 PS Hazrat Nizamuddin Ex. PW1/A on the basis of rukka brought by HC N.K. Pavitran and sent by ASI Ravinder. He made endorsement on rukka vide Ex. PW1/B. ii. ) PW2 HC N.K. Pavitran was a member of the raiding party. He was present at the spot when the accused persons were apprehended. He is the witness through whom the IO got the FIR registered in the case. He participated in various proceedings at the spot.
iii. ) PW3 ASI Ravinder is the witness, who received information regarding inter state gang of Mehboob Pandey, Iqbal @ Guddu and Raj Kumar, which was involved in committing robbery and theft of vehicle. He prepared the raiding party and went to the place of incident. He apprehended the accused persons, who were found at the spot. He prepared rukka and got the FIR registered in the case. He seized the articles recovered from the possession of accused persons.
SC No.51/13 6 of 25 iv. ) PW4 HC Arvind Kumar is a formal witness. He brought original record of MHC (M) Police Station Sector20, Noida, Gautam Budh Nagar dated 31.05.06. As per record brought by the witness, one Esteem car bearing fake No.UP16K6038 (original No.DL4CH4429) was deposited in case FIR No.249D/2006 vide GD No.72 under section 379 IPC in the Malkhana of the Police Station. He proved the relevant entry at serial No.193 in Register No.19. The witness stated that on 03.06.06, the said vehicle was released on supardari to its rightful owner namely Uday Thareja by the order of SO. He proved the copy of relevant page of Malkhana Register which is Ex. PW4/A. v. ) PW5 Uday Thareja is owner of vehicle No.DL4CH4429 whose car was stolen from his house on 09.04.06. He got the car released on supardari. He brought the car to the court and proved the photographs of his car which are Ex. PW5/P1 to Ex. PW5/P4.
vi. ) PW6 Ct. Deshpal Singh is a formal witness of the prosecution. He brought the particulars of case FIR bearing No.399/06 u/s 379 IPC, Crime No.249D/06 Police Station Sector20, Noida. He proved the certified copy of record which is Ex. PW6/A. vii.) PW7 Puneet Puri, Senior Scientific Officer (Ballistics), FSL, Rohini examined the exhibits of the case. He proved his detailed SC No.51/13 7 of 25 report which is Ex. PW7/A. viii.) PW8 HC Bhaiya Ram, the MHC (M) Police Station Hazrat Nizamuddin is a formal witness of the prosecution. He proved the relevant entries Ex. PW8/A to Ex. PW8/C in Register No.19. ix. ) PW9 Shri A.K. Lall, the then Assistant Commissioner of Police, Special Team, Crime Branch, Delhi gave complaint Ex. PW9/A alongwith the list of witnesses Ex. PW9/B to the court of competent jurisdiction for taking cognizance of the offence against the accused persons.
x. ) PW10 Inspector Bhagwati Prasad, is the IO of the case, who conducted various stages of investigation in the matter. He apprehended the accused persons and recovered the incriminating articles at their instance. He recorded disclosure statement of accused persons and prepared site plan Ex. PW10/A. On conclusion of investigation, he filed challan in the court; and xi. ) PW11 Dr. Joy Tirkey, Additional DCP Crime and Railways granted sanction for prosecution against accused Iqbal Ahmed @ Guddu and Mehboob @ Pandey under section 39 of The Arms Act. He proved the sanction letter of both the accused which are Ex. PW11/A and Ex. PW11/B respectively.
7. On conclusion of prosecution evidence, statement of accused persons under section 313 Cr.P.C. was recorded, wherein SC No.51/13 8 of 25 all incriminating material/circumstances appearing against them was put to them, to which they claimed innocence and alleged false implication.
8. Accused Iqbal Ahmed @ Guddu and Raj Kumar @ Raju stated that they were detained by the officials of crime branch 23 days prior to the alleged incident. They made thorough investigation, but nothing came out from investigation. Therefore, owing to their illegal detention, they falsely implicated them in the present case. Both the accused denied to lead evidence in their defence.
9. Accused Mehboob Pandey stated that he came to Delhi for surgery of his leg. The police officials apprehended him from near Holy Family Hospital and falsely implicated him in this case. He stated that nothing was recovered from his possession. He opted to lead evidence in his defence. However, despite sufficient time and opportunity given to him, he failed to produce any witness in his defence. Therefore, defence evidence was closed.
10. I have heard and considered the submissions advanced by Shri M. Zafar Khan, learned Additional Public Prosecutor for State, Shri Harjinder Singh, learned counsel for Raj Kumar and Iqbal @ Guddu and Shri F. Haq, learned counsel for accused Mehboob Pandey and carefully perused the record of the case.
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11. Out of total 11 witnesses examined by the prosecution, PW2 HC N.K. Pavitran and PW3 ASI Ravinder are the star witnesses. PW10 Inspector Bhagwati Prasad is the IO of the case. As per deposition of PW3 ASI Ravinder, on 02.05.06, he received information regarding inter state gang of Mehboob Pandey, Iqbal @ Guddu and Raj Kumar which commits robbery and theft of vehicles. He shared information with his senior officers. A secret informer came to his office at Prashant Vihar Crime Branch at about 8 PM and he informed that between 11 to 11:30 PM, all the three accused would come in front of Indraprastha Park on Ring Road. He constituted a raiding party and proceeded to the spot in two vehicles. They reached at the spot and took positions. He deposed that at about 11:10 PM, one blue colour Esteem car bearing No. UP16K6038 came from ITO side and the car stopped slightly ahead of their official Qualis. Three persons got down from the Esteem car and started talking among themselves. He deposed that the secret informer, who was with them pointed towards them and told that they were Raj Kumar, Iqbal @ Guddu and Mehboob. He signaled the members of raiding party. The accused persons got suspicious after seeing their movements, sat in the Esteem car and started fleeing. They chased them from their vehicles. The Esteem car was got stopped SC No.51/13 10 of 25 beneath Nizamuddin Flyover as the police officials parked their official Qualis in front of Esteem car and blocked the said car. The other Qualis came from behind.
12. PW3 ASI Ravinder further deposed that he got down from Qualis and the accused persons were sitting in the said Esteem Car. He warned them that they were police officials and asked them to stop. He stated that Raj Kumar, who was sitting on the driver seat asked his accomplice "police hai, Iqbal and Mehboob tum goli chalo". As per the witness, Iqbal took out katta and fired one round at him. He went down and managed to escape. He deposed that he apprehended Iqbal @ Guddu with the help of Ct. Devender. Mehboob Pandey got down from the back side door of Esteem car, who started fleeing and HC Hashim Ali chased him. Mehboob Pandey fired one shot at Hashim Ali, who managed to escape by bending towards down and Mehboob Pandey escaped from the spot by fleeing towards darkness. Accused Raj Kumar was apprehended by HC Pavitran and HC Rajiv. He deposed that he snatched katta from the hand of Iqbal and conducted his search. A live cartridge was recovered from right pocket of his pant. He took out the empty cartridge from katta. HC Hashim Ali also handed over to him one empty cartridge which was fired by Mehboob Pandey and the empty SC No.51/13 11 of 25 cartridge had fallen down. He correctly identified accused Raj Kumar @ Raju and Iqbal @ Guddu in the court. He also identified the weapon of offence i.e. katta Ex. P1, empty cartridge Ex. P2 and live cartridge Ex. P3 which was recovered from the possession of accused Iqbal @ Guddu. He also identified Esteem car on which the accused persons had come at the spot.
13. The testimony of PW3 ASI Ravinder has been fully supported and corroborated in all material particulars by PW2 HC N. K. Pavitran. He deposed on the same lines as deposed by PW3 ASI Ravinder. He proved Arrest Memo of accused Raj Kumar Ex.PW2/B and of accused Iqbal Ahmed @ Guddu Ex.PW2/C. He also proved Arrest Memo of accused Mehboob Pandey Ex.PW2/D, seizure memo Ex.PW2/E of one live cartridge recovered from possession of accused Mehboob Pandey and sketch of katta and live cartridge Ex.PW2/F. He correctly identified the accused persons in the court.
14. PW2 HC N. K. Pavitran and PW3 ASI Ravinder were the members of the raiding party. They have deposed about the incident whatever happened with them and whatever they saw with their naked eyes. PW3 ASI Ravinder escaped from the gun shot injury fired by accused Iqbal @ Guddu. Accused Iqbal @ SC No.51/13 12 of 25 Guddu was apprehended from the spot itself by ASI Ravinder (PW3) with the help of Ct. Devender. ASI Ravinder snatched katta from the hand of Iqbal and on his personal search, one live cartridge was recovered from right pocket of his pant. Accused Raj Kumar was also apprehended from the spot by PW2 HC N. K. Pavitran with the help of HC Rajiv when he was trying to flee from driver seat.
15. Both the witnesses namely PW2 HC N. K. Pavitran and PW3 ASI Ravinder were crossexamined at length by learned counsel for accused persons. They remained firm and consistent throughout their deposition. Nothing substantial has come in their crossexamination to doubt their veracity. They do not have any ill will or grudge with the accused persons. The accused persons have also brought no previous enmity on record with the aforesaid witnesses. Therefore, there is no reason to doubt the testimony of PW2 HC N. K. Pavitran and PW3 ASI Ravinder.
16. It was submitted by learned counsel for accused persons that no public person was joined in the investigation of the case except Shri Aditya Sharma. They further submitted that even this public witness was not examined by the prosecution. Therefore, the testimony of police officials cannot be relied upon and non examination of public witness casts a shadow of doubt in the SC No.51/13 13 of 25 prosecution story. Record shows that summons was issued to public witness Aditya Sharma who remained unserved. Summons was also issued to him through SHO/DCP concerned and they were directed to trace the witness and produce him in the court for his deposition but he remained unserved. IO of the case also furnished his report that witness Aditya Sharma was untraceable. The witness Aditya Sharma could not be examined in the court not on account of negligence on the part of police officials but due to his untraceability. If the witness was available and the prosecution intentionally did not examine the said witness in the court and availability of witness was within the knowledge of accused persons, nobody stopped them from calling him in their evidence to ascertain the truth of the matter. Thus, the prosecution can not be faulted for nonexamination of public witness Aditya Sharma in the court.
17. So far as reliability of the testimony of police officials is concerned, the testimony of police officials is as much reliable and believable as of public witnesses. The testimony of police officials, being the public servants is rather more authentic and reliable than other public persons. The police officials do not cease to be a witness only on account of the fact that they are the police officials. Their testimony cannot be discarded and not SC No.51/13 14 of 25 relied upon simply because they are in employment in police department. In the case of Aher Raja Khima Vs. State of Saurashtra AIR 1956 SC 217, Hon'ble Apex Court held that the presumption that a person acts honestly applies as much in favour of police officer as of other persons and it is not a judicial approach to distrust and suspect them, without good grounds and therefore, such an attitude could do neither any credit to the Magistrate nor good to the public. It only runs down the prestige of the police administration. Hon'ble Apex Court further observed in the case of State of Govt. of NCT of Delhi Vs. Sunil & Others AIR 2001 (1) Crimes 176 (SC) that the court cannot start with the presumption that police officials are untrustworthy. It was held that "it is an archaic motion that actions of the police officers should be approached with initial distrust". In view of above dictum of law pronounced by Hon'ble superior courts, the testimony of police officials cannot be discarded or not relied upon only on account of the fact that they are the police officials.
18. PW8 HC Bhaiya Ram, the then MHC(M) police station Hazrat Nizamuddin deposed that on 03.05.2006, ASI Ravinder deposited one Esteem car No. UP16K6038, seizure memo of a cartridge and some other articles and he made entry in this regard at Serial No. 2669 in Register No. 19 Ex.PW8/A. He further SC No.51/13 15 of 25 stated that on 11.05.2006, SI Bhagwati Prasad deposited in maalkhana one seizure memo about a country made pistol and cartridge and also one seizure memo about car. He made entry in this regard vide Serial No. 2687 in Register No. 19. He proved the said entry which is Ex.PW8/B. He stated that on 24.05.2006, the cartridges and country made pistol were sent to FSL Rohini through Ct. N. K. Pavitran vide RC No. 12/21/06.
19. PW7 Puneet Puri is a ballistic expert who examined the exhibits of the case. He stated that on 24.05.2006, three sealed parcels of this case were received in FSL and the same were marked to him for examination. As per the witness, the seals on the parcels were found intact and as per specimen seals provided with the FSL Form. He stated that on opening of first parcel, one country made pistol of .315 inch bore, one 8 mm / .315 inch cartridge and one 8 mm /.315 cartridge case were taken out and were marked as Ex.F1, A1 and EC1 respectively. On opening of second parcel, one 8 mm / .315 inch cartridge case was taken out and was marked Ex.EC2 and on opening of third parcel, one country made pistol of .315 inch bore and one 8 mm / .315 inch cartridge were taken out and were marked as Ex.F2 and A2 respectively. He stated that on examination, he found that the country made pistol mark F1 was in working order. Test fire was SC No.51/13 16 of 25 conducted successfully by using the cartridge mark Ex.A1 and test fired cartridge case was marked as TC1. As per the witness, the country made pistol marked Ex.F2 was also in working condition. The test fire was conducted successfully by using cartridge marked Ex.A2 and the test fired cartridge case was marked as TC2. The cartridge case marked EC1 was a fired empty cartridge and had been fired through the country made pistol marked F1. He stated that cartridge case marked EC2 was a fired empty cartridge and had been fired through country made pistol marked Ex.F2. He opined that the country made pistols marked exhibits F1 and F2 were fire arms. He stated that the cartridges marked Ex.A1, A2 and cartridge cases marked Ex.EC1 and EC2 were ammunition as defined in the Arms Act. He proved his detailed report which is Ex.PW7/A.
20. PW11 Dr. Joy Tirkey granted sanction for prosecution against accused Iqbal Ahmed @ Guddu and Mehboob @ Pandey under section 39 Arms Act. He proved the sanction letters Ex.PW11/ A (pertaining to accused Iqbal Ahmed @ Guddu) and Ex.PW11/B (pertaining to accused Mehboob @ Pandey). The sanction for prosecution of accused persons has been duly proved on record by PW11 Dr. Joy Tirkey.
21. On the date and time of incident i.e. on 02.05.2006 at SC No.51/13 17 of 25 11.30 pm, the police officials namely PW2 HC N. K. Pavitran and PW3 ASI Ravinder were working as public servants and discharging their public functions. The accused persons obstructed the public servants in discharge of their duty. They forced to deter them i.e. the police officials from discharge of their public duty. The accused persons in furtherance of their common intention fired upon the raiding party.
22. PW9 A. K. Lall made complaint Ex.PW9/A under section 195 Cr.P.C. in the court of competent jurisdiction for taking cognizance of the offences and for trial of accused persons in accordance with law.
23. It was submitted by learned counsel for accused persons that no person from police party or accused persons allegedly apprehended from spot were injured in the firing incident. They further submitted that the raiding party did not fire a single bullet on the accused persons, when accused Mehboob Pandey and Iqbal Ahmed @ Guddu fired on police officials / raiding party inspite of having weapons / aslah in their defence. PW3 ASI Ravinder Kumar has deposed that accused Iqbal took out katta and fired one round upon him however, he bent down and managed to escape. He further stated that he snatched katta from the hand of Iqbal. He apprehended Iqbal @ Guddu with the help SC No.51/13 18 of 25 of Ct. Devender. He further deposed that Mehboob Pandey got down from the back side door of Esteem car and he started fleeing. HC Hashim Ali chased him. Mehboob Pandey fired one shot at HC Hashim Ali who managed to escape by bending towards ground and accused Mehboob Pandey escaped from the spot. The aforesaid part of deposition finds corroboration from the testimony of PW2 HC N. K. Pavitran who was also a member of the raiding party. There was no occasion for the police officials to use aslah in their self defence when they had managed to save themselves and apprehended the accused persons from the spot itself. Injury is not essential for commission of offence under section 307 IPC. In the case of Ansarudin Vs. State of Madhya Pradesh (1997) 2 Crimes 157 (MP) it was held that it is not necessary that injury, capable of causing death, should have been inflicted. Hon'ble court observed that what is material to attract, the provisions of section 307 IPC is the guilty intention or knowledge with which the act was done irrespective of its result. The intention and knowledge are the matters of inference from totality of circumstances and cannot be measured merely from the results. In the present case, nobody suffered injury from the gunshot fired by accused persons. That itself does not mean that they did not commit the offence under section 307 IPC. The SC No.51/13 19 of 25 accused persons namely Iqbal @ Guddu and Mehboob @ Pandey had allegedly fired upon the members of the police party and if the same would have hit them, that might have caused their death.
24. The next contention of accused persons is that the crime team was never called at the scene of crime either by ASI Ravinder or later by SI Bhagwati Prasad. Nobody suffered injury in the case. The katta and the cartridges found and recovered at the instance of accused persons were seized by the Investigating Officer. There was no necessity for calling the crime team at the spot. Learned counsel for accused persons have failed to show as to how due to non calling and non arrival of crime team at the spot is fatal to the case of prosecution.
25. The other contention is that the witnesses to seizure memo of recovery of katta and sketch of katta seized from Iqbal Ahmed @ Guddu were not examined in the court although prosecution cited two witnesses i.e. public witness Aditya Sharma and other constable Devender Singh. He submitted that both the witnesses were dropped and were not examined to prove the seizure memo. Record shows that seizure memo of country made pistol (katta), one live cartridge and one empty cartridge Ex.PW3/A recovered from the possession of accused Iqbal Ahmed @ Guddu has been proved by PW3 ASI Ravinder. A bare SC No.51/13 20 of 25 look at seizure memo Ex.PW3/A shows that this seizure memo was witnessed by Ct. Devender Singh and public witness Aditya Sharma. As already observed in para no. 16 of the judgment that public witness Aditya Sharma could not be produced for his deposition in the court as he was found untraceable. The police officials despite best efforts failed to trace and produce him in the court for his deposition as he had left his given premises and shifted to some unknown place. As far as examination of PW Ct. Devender is concerned, order sheet dated 16.10.2012 reflects that this witness appeared in the court and was dropped by the prosecution on the ground that he was a member of raiding party and witness of similar facts was already examined in the court. Section 134 of The Indian Evidence Act, 1872 states that "no particular number of witnesses shall in any case be required for the proof of any fact". The courts are concerned with the merit of the statement of a particular witness. They are not concerned with the number of witnesses examined by the prosecution. It is the quality of the evidence and not the quantity of the evidence which is required to be judged by the court to place credence on the statement. In the case in hand, as one witness namely ASI Ravinder (PW3) has already been examined to prove the seizure memo of katta, one live cartridge and one empty cartridge SC No.51/13 21 of 25 recovered from the possession of accused Iqbal @ Guddu, therefore, non examination of other witnesses is not fatal to the case of the prosecution.
26. Learned counsel for accused persons have pointed out certain contradictions in para no. 14 of the written submissions in the testimony of witnesses. I have gone through the statement of the witnesses and the contradictions as pointed out by learned counsel for accused persons. There are minor contradictions in the testimony of witnesses which are not fatal to the case of the prosecution. There is no material contradiction in the testimony of witnesses which may have any bearing so far as the offences as alleged against the accused persons are concerned. Therefore, only on the basis of minor contradictions in the testimony of witnesses, the genuine case of the prosecution cannot be discarded and disbelieved.
27. Accused Iqbal @ Guddu and Raj Kumar were apprehended from the spot itself on 02.05.2006. Accused Mehboob @ Pandey is reported to have escaped from spot and managed to flee away. PW2 HC N. K. Pavitran during his testimony stated that the third accused fled away from the spot. ASI Ravinder (PW3) deposed that Mehboob @ Pandey escaped from the spot by fleeing to the darkness. He was apprehended on SC No.51/13 22 of 25 12.05.2006 on the basis of secret information from near a park opposite Grandlay Cinema, New Friends Colony, New Delhi. Accused was earlier not known to the prosecution witnesses. TIP of accused Mehboob @ Pandey was not got conducted. The accused was not apprehended at the instance and on the identification of the witnesses who had seen them when he ran away from the spot. PW2 HC N. K. Pavitran has nowhere stated that he identified accused Mehboob @ Pandey as the person who had escaped from the spot. Only name of the accused was known to the witnesses and he was apprehended at the instance of secret informer. Identification of accused Mehboob @ Pandey could not be established as per law. In the case of Rajesh Govind Jagesha Vs. State of Maharashtra AIR 2000 SC 160 it was held by Hon'ble Apex Court that in cases where the accused is not known to the witnesses, holding of TIP parade is obligatory on the prosecution. Thus, prosecution failed to establish on record that Mehboob @ Pandey was the person who had escaped from the spot on 02.05.2006.
28. The defence plea of accused Iqbal @ Guddu and Raj Kumar is that they were detained by the crime team threefour days prior to the alleged incident in this case. They were thoroughly interrogated and nothing came out from their SC No.51/13 23 of 25 interrogation but owing to their illegal detention they were falsely implicated in the present case. There is no merit in the defence of accused persons. No complaint was made either by any family members or any relative of the accused persons to the senior officers of police or to any other authority regarding illegal detention of accused persons. They also did not make any complaint regarding their illegal detention before the Magistrate when they were firstly produced in the court. This plea of illegal detention and false implication has been raised for the first time which appears to be afterthought. No merit is found in the defence plea of both the accused.
29. For the reasons discussed above, in my considered view, prosecution has succeeded to prove the offence under section 307/186/353/34 IPC against accused Iqbal @ Guddu and Raj Kumar. Accused Iqbal @ Guddu has been found to have fired at the police party with country made pistol / katta and the same was subsequently recovered from his possession. Therefore, accused Iqbal @ Guddu is also held guilty and convicted for committing the offence punishable under section 25/27 of The Arms Act. Prosecution failed to prove its case against accused Mehboob @ Pandey beyond all shadow of reasonable doubt. Hence, benefit of doubt is given to him. Consequently, he is SC No.51/13 24 of 25 acquitted for the offences for which he was charged.
30. Accused Mehboob @ Pandey is directed to furnish personal bond and surety bond in the sum of Rs.25,000/ in terms of section 437A Cr.P.C. On furnishing of bail bond by the accused, he be released from custody, if not wanted in any other case. The bail bond to be furnished by accused shall remain in force for a period of six months from today. File be consigned to record room.
Announced in the open (RAJ KUMAR TRIPATHI)
court today i.e. 08.06.2016 Addl. Sessions Judge02
SouthEast, Saket Courts, New Delhi
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