Delhi District Court
2. Title Of The Case : State vs Khushwant Singh on 9 August, 2012
IN THE COURT OF SHRI MANISH YADUVANSHI
ACMM0I (CENTRAL) : TIS HAZARI COURTS, DELHI.
1. Case No. : 5/CR/98
Unique I.D. No. : 02401R 0017331998
2. Title of the Case : State Vs Khushwant Singh
FIR No. 595/97
PS :I.P. ESTATE
U/s : 25 ARMS ACT
4. Date of Institution : 26.08.1998
5. Date of reserving judgment : 08.08.2012
6. Date of pronouncement : 09.08.2012
J U D G M E N T :
a) The Sl. No. of the case : 5/CR/98
b) The date of commission
of offence : 01.12.1997
c) The name of complainant : SI Mehak Singh.
Anti Kidnapping, Cell Crime Branch,
R.K. Puram
d) The name of accused :(1) Khushwant Singh, S/o Sh. Surender,
R/o H. No. E129, Kamla Nagar,
2) Kuldeep @ Babloo, S/o Sh. Prem Chand,
R/o H. No. 275, Pkt. E21, Sector3,
Rohini. (Since deceased; proceedings
abated on 21.05.2008)
3) Rajesh @ Kala, S/o Sh. Baljeet Singh,
R/o Village, Barwala, PS, Narela, Delhi.
FIR NO. 595/07 State Vs. KHUSHWANT SINGH Page 1 of 14
(Since deceased, proceedings abated on
08.05.2007)
4) Hardayal Singh, S/o Sh. Narain Singh,
R/o T883, Prem Nagar, Delhi
(Since deceased; proceedings abated on
29.01.2001)
e) The offence complained of : U/s : 25 Arms Act.
g) The plea of the accused : Pleaded not guilty
h) The final order : Acquitted.
i) The date of such order : 09.08.2012
j) Brief facts of the decision of the case :
1. As per the prosecution, one Inspector Prithvi Singh (PW5) received a secret information on 01.12.1997 at about 1.00 pm that on said date, the "members of Kishan/ Mahender gang would come at Vikas Minar at around 2.30 pm. The said information was developed. S.I. Mehak Singh (PW9) formed raiding party including Inspector Prithvi Singh (PW5), Inspector Samay Singh, (PW3), ASI Vijay Singh, ASI Satpal, SI Shashi Bhushan (PW8), and HC Shri Pal. They reached Vikas Minar in two government vehicle and organized "
Nakabandi" at the Scooter Parking from different positions. Upon the instance of Secret informer, the raiding team apprehended four persons who were arrested in this case. Out of the aforesaid four persons only accused Khushwant Singh has faced the entire trial. The other accused persons had died during the trial itself.
From accused Khushwant, raiding party had recovered .315 bore Pistol alongwith FIR NO. 595/07 State Vs. KHUSHWANT SINGH Page 2 of 14 one live cartridge of the same bore. A case under Section 25 Arms Act was registered.
2. The charge sheet was filed after conclusion of investigation and the charge in respect of offence punishable u/s 25 (1) (b) (a) Arms Act was framed against the accused Khushwant Singh on 09.09.2004 who claimed trial.
3. Out of the 12 named witnesses, prosecution has examined only nine witnesses. Inspector K.K. Upadhaya ( PW1) was working as a Ballastic Expert at FSL Malviya Nagar. He had examined the case property and made his report Ex. PW1/A. Sh. Karnail Singh, (PW2) was the then DCP Crime and Railways. He had accorded the sanction under Section 39 Arms Act. Inspector Samay Singh (PW3) was the member of the raiding party alongwith its other members i.e. Inspector SI Mehak Singh (PW9), Sh. Prithvi Singh, now ACP PW5), ASI Vijender Singh (PW4), HC Shri Pal, HC Ramesh, HC Shashi Bhushan (PW8), HC Satpal, Ct. Jitender, Ct. Mahesh Chand and ASI Amar Singh. It is deposed by him that Inspector Prithvi Singh received a secret information and the same was discussed and accordingly raiding party was prepared which left Vikas Minar in two government vehicles. SI Mehak Singh, (PW9) requested 45 passersby to join the raiding party but none agreed. At the instance of secret informer, the members of the raiding party had taken position and upon his pointing out the accused persons were apprehended. He deposed that from the possession of accused Khushwant Singh, one desi Katta loaded with cartridge was recovered FIR NO. 595/07 State Vs. KHUSHWANT SINGH Page 3 of 14 from his right dubh.
4. Inspector Samay Singh, (PW3), ASI Vijender (PW4), Inspector Prithvi Singh (PW5), HC Rakesh Kumar, now ASI, (PW6) SI Mehak Singh, ( PW9) have been examined by the prosecution as other members of the raiding party who have deposed in terms of the deposition of Inspector Samay Singh ( PW3). Apart from the aforesaid witnesses, the prosecution also examined ASI Surender Sharma, ( PW7) who was posted as Dury Officer on the relevant day and had recorded the FIR (Ex. PW7/B) on the basis of rukka (Ex. PW7/A. )
5. HC Shashi Bhushan ( PW) who had produced the rukka before the Duty Officer for registration of the FIR. The prosecution had failed to examine the witnesses namely HC Shri Pal, HC Harbir Singh MHC (M) PS I.P. Estate.
6. No other PW was examined. PE was closed vide order dated 14.07.2010. Accused was examined under Section 281 Cr.P.C. read with Section 313 Cr.P.C. wherein he submits that he has been falsely implicated in the present case and no recovery was effected from him. No defence evidence was led by the accused.
7. I have heard the arguments of the ld. APP and for the counsel for accused.
FIR NO. 595/07 State Vs. KHUSHWANT SINGH Page 4 of 14
8. Here, it would be appropriate to refer to the case law reported as "Sadhu Singh Vs. State of Punjab" 1997 (3) Crime 55, Punjab & Haryana High Court wherein it is observed as under : "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.
9. In the context of the ratio of the aforesaid judgement, Ex. PW9/A is extremely important being first narration of events. According to the same, DCP (Crime) was getting information that members of dreaded gangsters namely Kishan Pehalwan and Mahender Pehalwan were visiting DDA and MCD kiosks / tender offices in order to forcefully obtain tenders in their favour. Inspector Prithvi Singh ( PW5) was directed to develop the information. On the date of the incident at about 1.00 pm, a secret information was received that the members of the aforesaid gang would be coming to the DDA Office, Vikas Minar. Inspector Prithvi Singh shared this information with his ACP. The raiding party was constituted. DD No. 10 was recorded in the Daily Diary Register. The police team proceeded to Vikas Minar in government vehicles driven by drivers namely Amar Singh and Jitender Singh. They reached at 2.05 pm and stopped their vehicle at Link Road. SI Mehak Singh requested 34 passersby to join raiding party but none agreed. Then, at the instance of secret informer, the police party took positions at two places at scooter parking, Vikas Minar. At around FIR NO. 595/07 State Vs. KHUSHWANT SINGH Page 5 of 14 2.25 pm four persons including this accused came from the side of Targhar to the parking where they started talking amongst themselves. They were apprehended by the members of the raiding party. All of them were searched. The seized articles were taken into police possession by making Pullanda which was sealed with the seal of MSD. The case was got registered.
10. From amongst the main members of the raiding party i.e. ASI Vijender Singh (PW4); HC Shri Pal; HC Rakesh Kumar (PW6); HC Shashi Bhushan (PW8); HC Satpal; Ct. Jitender and Ct. Mahesh Chand, the prosecution examined only inspector Smay Singh (PW3) and out of these persons whose names are provided in the rukka, the prosecution has examined ASI Vijender (PW4) ASI Rakesh Kumar (PW6); HC Shashi Bhushan ( PW8); retired SI Mehak Singh (PW9). Apart from these persons, the prosecution also examined ACP Prithvi Singh, (PW5) and Inspector Samay Singh (PW3). Apparently, the drivers of the government vehicles were not involved at the time of the actual apprehension of the accused persons. It is noteworthy that apart from the aforesaid, one Amar Singh was the driver of the official vehicle make Armada No. DLICF 1848. The driver Amar Singh is referred to as an 'ASI' by Inspector Samay Singh (PW3). However, his name is not included in the list of witnesses submitted with the charge sheet. The rukka is silent regarding the fact as to whether the said Amar Singh was a civilian driver or a driver from the Police Force. Nevertheless, there is no explanation as to why one member of raiding party, even though he was the driver was not projected as a witness by the FIR NO. 595/07 State Vs. KHUSHWANT SINGH Page 6 of 14 prosecution.
11. The police party was already having intimation that members of the aforesaid gang had been visiting the MCD/ DDA office for obtaining tenders. On the relevant day, the police party received information that some members would come at a definite place i.e. Vikas Minar. The rukka states that the secret information was received at the office of the Crime Branch at 1.00 pm. The raiding party left their office at about 1.30 pm and reached near Vikas Minar at about 2.05 pm. Between 30 minutes which were available to them, not even a single independent member of the public was approached by SI Mehak Singh ( PW9) to make a part of the raiding party. As per the information available with them, a trap was to be laid at Vikas Minar between 2 to 3 pm. The police party, after reaching Vikas Minar at about 2.05 pm indulged into the exercise of making request to 45 public persons to join the raiding party. It is difficult to understand as why not this exercise was done prior to the scheduled time i.e. between 2 to 3 pm. It is in the rukka that SI Mehak Singh ( PW9) made request to 34 passersby to join the raiding party but they did not oblige him. After this Nakabandi was done and the accused persons came at about 2.25 pm as if for the convenience of the raiding party. The fact of absence of independent persons of public and one member of the raiding team namely Amar Singh assumes importance in this case as, firstly; the police party was having intel regarding the modusoperandi; secondly; they were having sufficient time to make efforts on their part itself to join the independent persons of public to their raiding party FIR NO. 595/07 State Vs. KHUSHWANT SINGH Page 7 of 14 and thirdly; for the reason that the place of incident is highly populated place and the time of occurance is 2.25 pm. The accused were apprehended near the scooter parking. Surprisingly, not even the attendants of the scooter parking `where the police party had already done its Nakabandi were asked by the members of the raiding party to join them. In this respect, PW3 admits that no police officials /public persons were called either from Police Headquarter or from nearby police station/ police post or from DDA office to join the raiding party. The positions of the members of the raiding party is not shown in the site plan. He admits that parking place was being used by the people even during the process of investigation but nobody bothered to ask them to become a part of the investigation. PW4 admits that they had left at 1.00 pm as against 1.30 pm as stated by PW5 and 1.20 pm as stated by PW3. This witness although stated that the IO made efforts to note down the names of the public persons who refused to join the investigation but he was unable to tell the age of such public persons. He was not even aware as to whether the IO had issued any notice to such passersby or gave them warnings that they may face legal action on their refusal. He admits that IO never made any effort to contact public servants for joining raiding team. PW5/ ACP Prithvi Singh admits that no police official / public persons were called from police headquarter or from the nearby police station/ police post or from the DDA Office. According to him, there was a attendant at the parking place, however, as per PW3, there was no such attendant at the parking place.
12. PW6, ASI Rakesh Kumar also admits that there was no attendant in FIR NO. 595/07 State Vs. KHUSHWANT SINGH Page 8 of 14 the parking place. Interestingly, the other witness have stated that the IO had not requested any persons using public place to join the process of investigation. However, this witness stated in this cross examination that the IO asked some persons to become part of the investigation but they refused. No notice was served on them.
13. Thus, there are material contradictions in the testimony of these witnesses. HC Shashi Bhushan was also the member of the raiding party, however, it appears that he played a limited role in carrying rukka to PS I.P. Estate for registration of FIR. PW9/ Retired SI Mehak Singh states that parking attendant was present at the scooter parking. He submits that he had asked the parking attendant to join the proceedings but no notice was served on them on their refusal. He admits that no efforts were made to call any witness from police booth in front of the police headquarter or any persons from the Vikas Minar to join the investigations. Thus even PW9 who formulated the raiding party has contradicted the statement of other PWs on the aspect of public witnesses.
14. The explanation given that certain public persons were requested but they refused does not appeal to any common sense and does not appear plausible as even names and address of those persons and requests had not been mentioned. Admittedly, no legal action has been taken against any of the persons who refused to join the investigations. This casts doubt about the sincere efforts made by the investigating officer to join public witnesses. In ROOP CHAND VS. STATE FIR NO. 595/07 State Vs. KHUSHWANT SINGH Page 9 of 14 OF HARYANA 1992 (1) CLR 69, it was observed that such explanation are unreliable.
15. In case of PREM SINGH VS. STATE 1996 CRL.L.J 3604 (DELHI) and in case of PAWAN KUMAR VS. DELHI ADMN. 1989 CRL 0127 DEL the courts observed as under : "Kalam Singh has to admit that at the time of the arrest and recovery of the knife, there was a lot of rush of public at the bus stop near Subhash Bazar. According to Jagbir Singh, he did not join any public witness in the case while according to Kalam Singh, no public person was present there. It hardly stands to reason that at a place like a bus stop near Subhash Bazar, there would be no person present at a crucial time like 7.30 pm when there is a lot of rush of commuter for boarding the buses to their respective destinations.
Admittedly, there is no impediment in believing the version of the police officials but for that the prosecution has to lay a good foundation. At least one of them should have deposed that they tried to contact the public witnesses or that they refused to join the investigation. Here is a case where no efforts was made to join any public witness even though number of them were present. No plausible explanation from the side of the prosecution is forthcoming for not joining the independent witnesses in case of a serious nature like the present one. It may be that there is an apathy on the part of the general public to associate themselves with the police raids or the recoveries but that apart, at least the IO should have made an earnest effort to join the independent witnesses. No attempt in this direction appears to have been made and this, FIR NO. 595/07 State Vs. KHUSHWANT SINGH Page 10 of 14 by itself, is a circumstances throwing doubt on the arrest of the recovery of the knife from the person of the accused."
16. At the same time, I am also reminded of the aspect that so far the arguments in respect of non joining of public witness is concerned, it is well settled law that 'the case of the prosecution cannot be thrown away merely on the ground that public witnesses have not been joined. Reliance is placed upon the judgement titled Ambika Prasad & Anr Vs. State reported in 2002 (2) Crimes 63 SC wherein it has been held 'Independent persons are reluctant to be a witness or to assist the investigation. In any case,if independent persons are not willing to cooperate with the investigation, prosecution cannot be blamed at and it cannot be a ground for rejecting the evidence of injured witnesses'.
17. Reliance is also placed upon judgement titled Appa Bhai Vs. State of Gujrat reported in AIR 1988 SC 696 wherein it is observed, " These days people in the vicinity where the occurrence took place avoid to come forward to give evidence and civilized persons are in sensitive when crime is committed in their presence and they withdraw both from the victim and vigilance'
18. At the same time in such a scenario, the court will have to look for further corroboration amongst the testimonies of the police officials to the recovery and if their appear to be no material contradictions amongst their statements, then the court may formulate an opinion and come to the conclusion that the factors leading to non joining of public witnesses, in a particular case, FIR NO. 595/07 State Vs. KHUSHWANT SINGH Page 11 of 14 may be the same in the manner explained by the PWs and therefore, the court may rely upon the testimonies of the police witnesses to recovery.
19. There is another discrepancy in the case of the prosecution which creates doubts about the genuineness in respect of the chronological order regarding the investigation conducted visvis sequence provided by the witness of the prosecution including the IO. It is apparent from the rukka Ex. PW9/A that the arms/ammunition recovered from the accused persons including the accused Khushwnt Singh soon after the recovery were put on a paper for a purpose of preparation of their sketch. Subsequently the same were put in a piece of cloth of which pullanda was prepared and the same was taken into police possession by execution of a seizure memo. The seizure memo in respect of the accused Khushwant Singh is Ex. PW4/E. Sketch of the weapon of the .315 bore and the bullet which was prepared by the IO in this case is Ex. PW4/A. The perusal of this sketch indicates that it does not state as to from whom weapon and the bullet were recovered. Similarly, in the statement of the PW9/ IO no reference is made to the fact that the sketches Ex. PW4/A, Ex. PW4/B, Ex. PW4/C and Ex. PW4/D which were recovered from the possession of different accused persons were recovered from which accused. However, one of the sketch of knife Ex. PW4/A bears the signature of accused Khushwant Singh and therefore, it can be said that the weapon and bullet referred to in seizure memo Ex. PW4/E is the same of which the sketch Ex. PW4/A was prepared. The said gun and the said bullet are Ex. P3 collectively.
FIR NO. 595/07 State Vs. KHUSHWANT SINGH Page 12 of 14
20. The perusal of the rukka further reveals that after having done this much exercise, SI Mehak Singh prepared the rukka and sent th e same to his office for registration of FIR. As per PW8, HC Shashi Bhushan, rukka was handed over to him at about 4.15 pm and he reached the PS at 4.35 pm and remained there for one hour. PW7/Duty Officer, ASI Surender Sharma registered the FIR and according to him, PW8 HC Shashi Bhushan left the police station at about 5.30 pm alongwith copy of FIR and rukka. As per PW9, after registration of case HC Shashi Bhushan reached at the spot and handed over the copy of tehrir and FIR and it was only thereafter that he prepared the site plan and arrested the accused persons. The IO/ PW9, therefore could not have known the case particulars ie. the FIR number and the sections of law involved prior to the receipt of copy of FIR. However, documents Ex. PW4/E as well as sketch Ex. Pw4/A not only bear the complete case particulars but also the FIR number. It was for the prosecution to have established that the aforesaid particulars were filled up by the IO either subsequent to marking of the investigation to him or by the police officer who made the seizure memo at the time of preparation of seizure memo. The aforesaid explanation is missing in this case. Defence counsel has relied on judgement of the Hon'ble High Cour.t in case titled "Pawan Kumar Vs. Delhi Administration:" reported at "1989 Crl. Law General 127". In the aforesaid case in the similar circumstances, following viz;
" in the normal circumstances the FIR No. should not find mention in the recovery memo or the sketch plan which had come into existence before the registration of the case. However, from the perusal of the recovery memo, I find that the FIR is mentioned whereas the sketch memo does not FIR NO. 595/07 State Vs. KHUSHWANT SINGH Page 13 of 14 show the number of the FIR. It is not explained as to how and under what circumstances, the recovery memo came to bear the FIR No. which had already come into existence before the registration of the case. These are few of the circumstances which create a doubt in my mind about the genuineness of the weapon of offence alleged to have but recovered from the accused"
21. Undoubtedly, this circumstance is alone to create doubt in the case of prosecution. I have already pointed out that there are other contradictions amongst the testimonies of witness.
22. Now since the prosecution has miserably failed to prove its case beyond all shadow of reasonable doubts, the only plausible finding which can be given against the accused is that of not guilty. Accordingly, the accused is acquitted in the present case by giving him benefit of doubt. Bail bond of accused is extended in terms of section 437A Cr.P.C. Case property be forfeited to the state, to be destroyed after the expiry of the period of appeal or revision, if any. File be consigned to record room.
Announced in the open court (MANISH YADUVANSHI) on 09.08.2012 ACMM01 DELHI
It is certified that this judgement contains Fourteen (14) Pages and each page bears my signature.
(MANISH YADUVANSHI) ACMM01 DELHI FIR NO. 595/07 State Vs. KHUSHWANT SINGH Page 14 of 14 FIR NO. 595/07 State Vs. KHUSHWANT SINGH Page 15 of 14