Delhi District Court
State vs 1. Sultan S/O Rafiq R/O Mohalla Pahari on 23 July, 2011
IN THE COURT OF SH. RAJ KAPOOR, LD. ADDITIONAL
SESSIONS JUDGE - 2 : WEST/ TIS HAZARI COURTS: DELHI.
Sessions Case No. 260/1/ 10
Assigned to Sessions. 18.09.2006
Arguments heard on 13.07.2011
Date of order. 23.07.2011
FIR No. 140/06
State Vs 1. Sultan s/o Rafiq r/o Mohalla Pahari
Radwaza, Dhampur, PS Dhampur, Distt.
Bijnaur, U.P.
2. Anees s/o Khalil Ahmed r/o Village
Sher, Distt. Bijnaur, U.P. (Proclaimed
Offender)
3. Wakil s/o Khalil r/o Manak Chand
Mao, PS Kotwali, Dehat, Distt.
Saharanpur, U.P.
4. Salim s/o Inamul Haq r/o Mohalla
pakka Bagh, Distt. Bijnaur, U.P.
Police Station Chandni Chowk/ Kotwali.
Under Section 399/402 IPC & 25 Arms Act.
JUDGEMENT
1. Briefly facts of the case are that on 16.04.2006 ASI Raj Kumar along with other police officials was on patrolling duty. At about 10.15 p.m. he had received a secret information that five boys had assembled in the Company Bagh and were making preparations to commit dacoity. It was also informed that they were armed. ASI Raj Kumar then formed a raiding party. HC Rakesh Kumar, who was in plain FIR no.140/ 06 State Vs Sultan & Ors 1 /16 clothes, was made a shadow witness. He was asked to go near the place where the five persons had assembled and to give signal. HC Rakesh then gave a desired signal. Four boys out of 56 boys had been apprehended. From the possession of Anees, one loaded desi Katta and a live cartridge was recovered. From the possession of accused Vakil Ahmad, a buttondar knife was recovered. From the possession of accused Sultan, a buttondar knife was recovered. From the possession of accused Salim, a buttondar knife was also recovered. Since, it has been stated by the Ct. Rakesh in his statement recorded u/s 161 Cr.PC that they were planning to commit dacoity, therefore accused persons were arrested u/s 399/402 IPC as well as under section 25 of Arms Act. It is the case of the prosecution that fifth culprit had managed to escape.
2. This case was committed to this Court and received on 18.09.06 for trial as it pertains to the heinous crime committed under section 399/402 IPC & 25 Arms Act which is exclusively triable by court of Sessions. Ld. predecessor of this court passed a detailed order dt. FIR no.140/ 06 State Vs Sultan & Ors 2 /16 13.03.2008 on the point of framing of charge. Accordingly, charge for the offence u/s 399/402/34 IPC was framed against all the accused persons except accused Anees since he is proclaimed offender, and charge for the offence u/s 25 Arms Act was framed against accused persons namely Vakil, Sultan and Salim. Accused persons did not plead guilty and claimed trial.
3. To prove and substantiate its case, the prosecution has examined 9 witnesses namely PW1 K C Varsney, Sr. Scientific Officer, PW2 HC Manoj Kumar - material witness who accompanied the I.O. at the time of apprehending the accused persons, PW3 Ct. Rakesh Kumar
- another material witness who was in the raiding party, PW4 ASI Naseeb Singh - is the IO to whom investigation was marked on 25.05.2006 and he completed all the formalities such as obtaining permission under section 39 Arms Act and depositing of case property to FSL etc, PW5 ASI Raj Kumar - Ist I.O. of the case who prepared a raiding party apprehended the accused persons, PW6 FIR no.140/ 06 State Vs Sultan & Ors 3 /16 Raj Kumar is a formal witness being MHC(M), PW7 Ct. Sudesh Rana is also a formal witness who got deposited the parcels at FSL Rohini, Delhi on 25.05.2006, PW8 ASI Malkiyat Singh is also a formal witness being duty officer who got exhibited the photocopy of FIR as Ex.PW8/A of the present case which he recorded on 17.04.2006 and PW9 SI Ram Niwas - II I.O. of the case.
4. In this case the most material witnesses are PW2, PW3 and PW5. All these officials of Operation Cell Maurice Nagar, went in the area of PS Chandni chowk, vide DD No.11 at about 09:40 PM from their office. When they all were present near Bankhandi Mandir, Shama Parsad Mukherjee Nagar, one secret informer met them and stated that five persons were sitting in the Company Bagh, in the bushes near the wall of Bankhandi Mandir with the intention of committing the dacoity in the area and they all are armed. Subsequent to have received aforesaid information, PW5 ASI Rajkumar directed Ct. Rakesh as shadow witness to hear the conversation and to give FIR no.140/ 06 State Vs Sultan & Ors 4 /16 signal. At about 10:15 PM, after hearing the conversation Ct. Rakesh gave signal by lighting the match stick and thereafter all the police officials entered into the park and surrounded all the accused persons. On the formal search of accused Anees, one loaded desi Katta and a live cartridge was recovered (He is P.O). From the possession of accused Vakil Ahmad, a buttondar knife was recovered. From the possession of accused Sultan, a buttondar knife was recovered. From the possession of accused Salim, a buttondar knife was also recovered. PW5 ASI Raj Kumar prepared Tehrir vide Ex.PW5/A, gave the same to Ct. Padam for getting the case registered and accordingly FIR No. 140/06 which is Ex.PW8/A was recorded by PW8 ASI Malkiyat Singh, Duty Officer of PS chandni Chowk. His endorsement on the tehrir is Ex.PW8/A. After registration of the case, investigation was assigned to PW9 SI Ramniwas who reached at the spot and first IO ASI Rajkumar produced 4 sealed parcels and accused persons to him. PW9 SI Ram Niwas prepared site plan at the pointing out of ASI Raj Kumar vide Ex.PW5/B. Accused persons were arrested and IO prepared FIR no.140/ 06 State Vs Sultan & Ors 5 /16 arrest memo and personal search memo vide Ex.PW2/J, K, L, M, N, O, P and Q. All these witnesses have been crossexamined at length by defence counsel. I have perused the same. In the cross examination of these witnesses it has come on record that public persons were present but no public witness joined the raiding party. I.O. did not issue any notice to them. Besides, it has also come on record that accused persons were having weapons and they were overpowered by the police party. It is difficult to believe that there is no scuffle with accused persons when police came to apprehend them. Besides, I.O. has not brought on record any concrete proof of conversation what the accused persons were doing, in the era of high technology.
5. PW6 Raj Kumar, MHC(M) came to the witness box and deposed that on 25.05.2006, he handed over road certificate to Ct. Sudesh Rana to deposit the case property at FSL Rohini. The entry regarding deposition of case property and copy of road certificate are Ex.PW6/A and B. Copy of the acknowledgment is Ex.PW6/C, FIR no.140/ 06 State Vs Sultan & Ors 6 /16 Ex.PW6/D and E. This witness has been crossexamined. No contradictory evidence has come on record.
6. PW7 Ct. Sudesh Rana affirmed the fact of PW6 by stating that on 25.05.06 he deposited the parcels at FSL Rohini, Delhi. This witness has not been crossexamined.
7. PW8 ASI Malkiyat Singh is also a formal witness who was working as duty officer on 17.04.2006 and recorded the FIR of this case vide photocopy of the same Ex.PW8/A. He also made endorsement on tehrir videEx.PW8/B. This witness has not been crossexamined.
8. On 07.06.2006 PW4 ASI Nasib Singh obtained permission under section 39 Arms Act from Additional DCP and on completion of investigation, charge sheet was filed.
9. PW9 SI Ram Niwas came to the witness box and deposed that on 17.04.2006, he was posted at Operation Cell, North District. On that FIR no.140/ 06 State Vs Sultan & Ors 7 /16 day, investigation of the present case was assigned to him. He went at the place of occurrence i.e. Company Bagh, Bankhandi Mandir, Chandni chowk, where ASI Rajkumar along with other police officials met him. ASI Raj Kumar produced four accused persons namely Vakil, Sultan, Salim and Anish. He identified three accused persons namely Sultan, Vakil and Salim. Accused Anish is P.O. This witness further deposed that ASI Rajkumar also produced four sealed parcels, seizure memo etc. before me. He prepared site plan at the pointing out of ASI Rajkumar vide Ex.PW5/B. Accused persons were arrested by him and he prepared their personal search memo and arrest memo vide Ex.PW2/J, K, L, M, N, O, P and Q which bears his signatures at point B. All the accused persons were got medically examined and thereafter they were produced before the concerned court and from there they were sent to J/C. Next day, he was transferred from the Operation Cell and he handed over the case file to Reader to ACP, Operation Cell, North. This witness has not been crossexamined.
FIR no.140/ 06 State Vs Sultan & Ors 8 /16
10.PW1 K.C. Warshney , Sr. Scientific Officer, FSL Rohini gave his report which is Ex.PW1/A in respect of countrymade pistol recovered from the possession of accused Anees, who is P.O. He opined that the countrymade pistol mark F1 was a firearm and the cartridges Mark A1 and A2 are ammunition as defined in the Arms Act. This witness has not been crossexamined.
11.After recording the statements of above witnesses, prosecution evidence was closed. After that statements of accused persons u/s 313 Cr. P. C. were recorded in which they denied all the allegations and stated that they have been falsely implicated in this case. However, they did not lead any defence evidence.
12.Thereafter, case was fixed for final arguments. Case of the accused persons could not be argued after giving sufficient opportunities. However, ld. APP argued and submitted that there is sufficient evidence on record to convict the accused persons. All the FIR no.140/ 06 State Vs Sultan & Ors 9 /16 accused persons have been identified by the witnesses. Case property has also been proved on record. On these grounds ld. APP submitted that accused persons be convicted.
13.On perusal of all depositions of the prosecution witnesses and their crossexaminations. I find major contradictions and variations in their statements. On the major contradictions the Hon'ble Supreme Court of India has observed in the following words in a case titled as 'Jaskaran Singh Vs State 1997 SCC (Crl) 651' : "When the evidence of first informant is found to be full of contradictions, exaggerations and improvements, he cannot be held to be a truthful witness".
Again on the point of contradictions the Hon'ble Supreme Court in case State of UP Vs Bhagwan AIR 1997 SC 3292: (1997) 1 SCC 19 made the following observations which are very relevant crucial and dominant in deciding the fate of the present case: "minor discrepancies in the evidence of the eyewitnesses are immaterial unless they demolished the basic case of the prosecution."
The observations made in the aforesaid two cases by the Hon'ble FIR no.140/ 06 State Vs Sultan & Ors 10 /16 Supreme Court are exfacie indicative of the fact that a clear distinction be made between the major contradictions and minor contradictions when the contradictions are minor the truthfulness of the witness cannot be discredited in all and contrary to it when the contradictions are major these affect the root of the case and leave an impression of untruthfulness of the witnesses.
14.Before reaching at any conclusion let the relevant sections i.e. 399 IPC and 402 IPC be produced verbatim which are as under: Section 399 IPC "Making preparation to commit dacoity Whoever makes any preparation for committing dacoity, shall be punished with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine."
Section 402 IPC "Assembling for purpose of committing dacoity -
whoever, at any time after the passing of this Act, shall be one of five or more persons assembled for the purpose of committing dacoity, shall be punished with rigorous imprisonment for a term which may extend to seven years, and shall also be liable to fine."
15.On careful perusal of relevant sections the following ingredients of respective sections must be proved on record:
Ingredients of Section 399 IPC FIR no.140/ 06 State Vs Sultan & Ors 11 /16
i) it is necessary to prove that the assembly of the accused persons is for preparation of dacoity;
ii) it must be proved that the act for which preparation was being made was a dacoity; and
iii) it must be cogent evidence in support of the charge that the accused persons had assembled to commit dacoity.
Ingredients of Section 402 IPC
i) that there was an assembly of five or more persons;
ii) that the assembly was constituted for the purpose of committing dacoity; and
iii) that the accused persons were members of that assembly"
16.In Brijlal Mandal Vs State 1978 Cr. L J 877 (Pat) it has been observed that:
"it is necessary to prove that the assembly of the accused persons is for preparation of dacoity. Only because the accused persons were waiting in a waiting hall of a railway station, it cannot be held that they had assembled there for preparation to commit dacoity"
Again, in another case Madhusudan Vs State AIR 1958 Cal 25 :
1958 Cr L J 25 has been observed that :
"So some act amounting to preparation must be proved and it has further to be proved that the act for which preparation was being made was a dacoity."
It has also been held in case Sukhlal Vs State of Madhya Pradesh 1998 Cr. L. J. 1366 (M) that:
"In order to bring home the offence under section 399 I. P. Code the prosecution has to establish that the act of the accused amounted to preparation and this preparation was to FIR no.140/ 06 State Vs Sultan & Ors 12 /16 commit dacoity. In other words, the prosecution must show that there were persons who had conceived the design of committing the dacoity and they were preparing in prosecution of that design. So far as the offence under Section 402 I. P. Code is concerned, it may be mentioned that this section applies to mere assembling without proof of other preparation. Therefore, the offence under section 399 I.P. Code is preparation to commit dacoity, whereas the offence under section 402 I.P. Code is complete as soon as five or more persons assemble together for the purpose of committing dacoity. So, for an offence under section 402 mere assembling for any preparation is sufficient, whereas under section 399 for an offence under that section it must be proved that some additional steps were taken in the course of preparation to commit dacoity."
17.I have perused the case file and gone through the testimonies of all witnesses also very carefully. All these witnesses have been cross examined by the ld. defence counsel. In the crossexamination of PW5 ASI Raj Kumar, he did not issue any notice to the public persons who refused to join the raiding party. He could not tell the direction of the faces of the accused persons who were present in the Company Bagh. It is difficult to believe that there is no sign of any struggle from the side of accused persons when police party reached there to apprehend them. Besides, I.O. has not brought on record any concrete proof of conversation what the accused persons were doing, in the era of high technology. It has also been FIR no.140/ 06 State Vs Sultan & Ors 13 /16 observed in the testimony of police officials that public persons were present there and on the other hand he stated that no legal action was taken against them who refused to join raiding party due to shortage of time. To this effect I rely upon observations taken in various cases such as "The State of Punjab Vs. Gurmej Singh" 1991 (2), Criminal Report 361, "The State of Punjab Vs. Gurnam Singh"
1991 (3), Criminal Report 412 (C.C. Cases) [HC 345] wherein it was held that : "That failure of the Investigation Officer to join independent witnesses of the locality in investigation sound the deathknell of the prosecution case set up against the accused, conviction based by the learned trial court on the statements of the police and excise officials cannot be sustained in and the accused is entitled to secure an acquittal on this score."
In another case '1989 Cr. L J 127 (Delhi High Court)' it has been observed that : 'In case of arrest of the accused for recovery of knife from his possession by police, if no efforts made by police to join any independent witness though several persons were present on the spot... circumstances creates doubt on arrest and recovery of knife' FIR no.140/ 06 State Vs Sultan & Ors 14 /16 Again it has also been observed in 'Harjit Singh & Ors. Vs. State of Punjab 2001(3) JCC 1601' that:
'...that in the absence of independent witnesses and the alleged place of concealment being accessible to public, the evidence of disclosure statement and the consequent recovery of arms do not at all inspire confidence...'
18.Therefore, keeping in view of these major contradictions I am of the view that n o ingredients of section 399 and 402 IPC has been proved on record by the prosecution because it has been observed that no specific instance of attempting to commit any sort of offence either robbery or otherwise jointly has come on record in the testimony of any of the witnesses, therefore, it raises a strong and sufficient doubt whether accused persons were gathered at the spot for committing any robbery/ offence. Thus, in light of the above discussion I am of the view that prosecution has miserably failed to meet out the ingredients of section 399 IPC, 402 IPC & 25 Arms Act as no specific instance of attempting to commit any sort of offence either robbery or otherwise jointly or cojointly has come on record therefore, it raises a strong and sufficient doubt whether accused FIR no.140/ 06 State Vs Sultan & Ors 15 /16 persons were gathered at the spot for committing any robbery / offence or not. It also raises a doubt whether any knife was recovered from the accused persons or not. Accordingly, I acquit accused persons namely 1.Sultan, 2.Wakil and 3.Salim for the offences u/s 399/402 IPC and 25 Arms Act by giving them benefit of doubt. Accused Anees s/o Khalil Ahmed r/o Village Sher, Distt. Bijnaur, U.P. is Proclaimed Offender in this case. ANNOUNCED IN THE OPEN COURT ON THIS 23.07.2011 (RAJ KAPOOR) ASJ2/ West Tis Hazari Courts, Delhi FIR no.140/ 06 State Vs Sultan & Ors 16 /16