Delhi District Court
State vs Anand Kumar & Others//Fir No.133/03 To ... on 4 May, 2010
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THE COURT OF SHRI SANJAY KUMAR,
ADDITIONAL SESSIONS JUDGE - I,
DISTRICT NORTH WEST, ROOM NO. 308,
ROHINI COURTS, DELHI.
SC No. 63/08.
FIR NO.133/03 TO 136/03.
PS : ASHOK VIHAR.
U/s 399/402 IPC & 25 ARMS ACT.
STATE
VERSUS
1 ANAND KUMAR S/O. RADHEY SHYAM
R/O. N28E/101, GALI NO.4, AMBEDKAR
PARK, WAZIRPUR INDUSTRIAL AREA,
DELHI.
2. ASHOK SINGH S/O. SH. MAANG DEV
R/O. JHUGGI NO.N28C/505, AMBEDKAR
PARK, WAZIRPUR INDUSTRIAL AREA,
DELHI.
(PROCLAIMED OFFENDER VIDE ORDER
DATED PASSED ON 13.01.2010).
3. SANTOSH KUMAR S/O. SHRI CHANDER BHAN
R/O. VILLAGE- BARNA, PS-KUDRA, DISTRICT-
BHABHUA, BIHAR.
4. MAHENDER @ PAUA, S/O. SHRI PRAHLAD
R/O. N28/D-423, ALINA FACTORY, CHANDRA
SHEKHAR AZAD COLONY, WAZIRPUR INDL
AREA, DELHI.
PRESENT ADD:- JHUGGI NO.D422, WAZIRPUR
INDUSTRIAL AREA, ASHOK VIHAR, DELHI.
PERMANENT ADD:- VILLAGE-BANGAON, DISTT.
AZAMGARH, U.P.
5. SANJEEV KUMAR @ SANDEEPA S/O. LACHHAN SINGH
R/O. N28/451, GALI NO.6, WAZIRPUR INDUSTRIAL
AREA, AMBEDKAR PARK, ASHOK VIHAR, DELHI.
STATE VS ANAND KUMAR & OTHERS//FIR NO.133/03 TO 136/03.
PSASHOK VIHAR//UNDER SECTION 399/402 IPC & 25 ARMS ACT.
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Date of Institution : 19.07.2003
Date of receipt of case in this Court : 24.11.2008
Arguments heard On : 04.05.2010
Judgment announced on : 04.05.2010
SH. P.K. VERMA, APP FOR STATE.
MS. SADHNA BHATIA, AMICUS CURIAE FOR ALL THE ACCUSED
PERSONS.
JUDGMENT
1. This is the common Judgment in FIR No.133/03, 134/03, 135/03 & 136/03, under Section 399/402 IPC and 25Arms Act.
2. In brief the facts as projected in the chargesheet that on 5.3.03 SI Mahesh Chand alongwith HC Bijender, Ct. Chander Hass and Ct. Harphool Singh were on patrolling duty at Wazirpur Industrial Area Police Post. At about 10 P.M. in the night they reached at Ashok Vihar More T - point, where ASI Rohtash Singh alongwith HC Ranbir Singh, Ct. Hari Kumar, Ct. Subhash were met them, who were also on petrolling duty. In the meanwhile one secret information received from a secret informer that near All Heavens Restaurant at Service Road there is a vacant plot No. B-94, STATE VS ANAND KUMAR & OTHERS//FIR NO.133/03 TO 136/03. PSASHOK VIHAR//UNDER SECTION 399/402 IPC & 25 ARMS ACT. :3: four/five boys are planning and making preparation for dacoity. They are armed with weapons, in case raid is conducted then they can be arrested.
3. On the secret information a raiding party was prepared and some public persons were asked to join the raiding party but all of them refused. The police officials did not waste the time and alongwith secret informer went near Plot No.B-93, i.e. vacant plot at about 10.15 p.m. At the instance of secret informer they saw four/five notorious persons were sitting there. SI Mahesh Chand told to Ct.Harphool to go near the wall and hear the conversation. Thereafter they all went near the wall of the vacant plot and surrounded taking the position. On the signal at about 10:30p.m., SI Mahesh Chand took out his service revolver and asked all the five accused persons to surrender but they all ran in different directions. One person, whose name came to knowledge i.e. Santosh Kumar was apprehended by SIRohtash alongwith Ct. Subhash, second person Anand was apprehended by HC Bijender and Ct. Chander Hass, third STATE VS ANAND KUMAR & OTHERS//FIR NO.133/03 TO 136/03. PSASHOK VIHAR//UNDER SECTION 399/402 IPC & 25 ARMS ACT. :4: person namely Ashok Singh (P.O.) apprehended by HC Ranbir Singh alongwith Ct. Hari Kumar, 4th person namely Mahender apprehended by SI Mahesh Chand alongwith a iron rod and 5th person namely Sanjeev Kumar was apprehended by Ct. Harphool Singh alongwith iron rod. All the persons were formally searched and thereafter another accused Santosh was apprehended, his personal search conducted and HC Ranbir Singh got recovered one country made pistol .315 bore which loaded cartridge. On personal search of accused Anand and Ashok Singh by HC Bijender Singh and Ct. Rajbir Singh and got recovered one button actuated knife from each person. Recovery of these weapons were carried out independently by ASI Rohtash, HC Ranbir and HC Bijender Singh.
4. SI Mahesh Chand also came to know from Anand @ Bittu that they were planning to commit dacoity at a Petrol Pump in the Wazirpur Industrial Area. Santosh was disclosed the fact that he had would use katta and Anand @ Bittu and Ashok Singh (P.O) would use knife while committing dacoity.
STATE VS ANAND KUMAR & OTHERS//FIR NO.133/03 TO 136/03. PSASHOK VIHAR//UNDER SECTION 399/402 IPC & 25 ARMS ACT. :5: The accused Sanjeev @ Sandeepa and Mahender would snatch the cash from the employees of the Petrol Pump. A rukka was prepared and sent for registration of case under Section 399/402 IPC. IO prepared the site plan of the spot of crime and also seized the recovered weapon from the accused persons. Thereafter all the five accused were arrested.
5. A separate FIR No.134/03, under Section 25 Arms Act registered against Ashok Singh (P.O.) regarding the recovery of button actuated knife. Another FIR No.135/03, under Section 25 Arms Act was registered against accused Anand Kumar regarding the recovery of button actuated knife and another FIR No.136/03 under Section 25 Arms Act registered against accused Santosh Kumar for possession of country made pistol alongwith cartridge.
6. Learned MM after compliance of Section 207 Cr.P.C., committed all the cases to the Court of Sessions.
STATE VS ANAND KUMAR & OTHERS//FIR NO.133/03 TO 136/03. PSASHOK VIHAR//UNDER SECTION 399/402 IPC & 25 ARMS ACT. :6:
7. As per order of my learned predecessor dated 19.7.2004 the main case is treated vide FIR No.133/03, under Section 399/402 IPC and connected cases of 25 Arms Act are clubbed for the purpose of trial and one trial has been conducted in the main case i.e. FIR No.133/03, under Section 399/402 IPC. Vide order dated 14.8.2003 charge for offence punishable under Section 399 read with 402 IPC was framed against all the five accused persons, and a separate charge framed against accused Ashok Singh (P.O.) and Anand Kumar under Section 25 Arms Act on the even date to which all the accused persons pleaded not guilty and claimed trial.
8. Vide order dated 12.4.2006 a separate charge for offence punishable under Section 25 Arms Act was framed against accused Santosh Kumar, to which he also pleaded not guilty and claimed trial. However, accused Ashok S/o. Mang Dev was declared as Proclaimed Offender vide order dated 13.1.2010 passed by the undersigned.
STATE VS ANAND KUMAR & OTHERS//FIR NO.133/03 TO 136/03. PSASHOK VIHAR//UNDER SECTION 399/402 IPC & 25 ARMS ACT. :7:
9. Prosecution in support of present case examined PW1 ASI Devinder, who proved the FIR No.133/03, Ex.PW1/B and endorsement on rukka Ex.PW1/A. PW2 HC Bijender, PW3 Ct. Subhash Chand, PW4 Ct. Chander Hass, PW5 Harphool Singh, PW6 HC Raj Singh, PW7 Hari Kumar (he was cross examined wrongly as PW9), PW8 HC Ranbir Singh, PW9 is wrongly numbered as he has already been examined as PW7 Ct. Hari Kumar, PW10 ASI Roshan Lal Kataria, PW11 SI Harun Ahmad, who was deferred uncross-examined & PW12 Ram Roop.
10. The prosecution granted more than sufficient opportunities to complete the evidence as accused persons are facing trial and appearing regularly. Seven years were granted to the prosecution for concluding its evidence are sufficient to complete the evidence. The request of learned APP for the State for adjournment for calling remaining witnesses is declined. Hence, Prosecution Evidence is closed.
STATE VS ANAND KUMAR & OTHERS//FIR NO.133/03 TO 136/03. PSASHOK VIHAR//UNDER SECTION 399/402 IPC & 25 ARMS ACT. :8:
11. Statement of accused persons namely Anand Kumar, Santosh Kumar, Sanjeev @ Sandeepa and Mahender under Section 313 Cr.P.C. have been recorded, to which they all pleaded their innocence and wish not to lead any witness in their defence.
12. I have heard Shri P.K. Verma, learned APP for the State and Ms. Sadhna Bhatia, learned Amicus Curiae for all the accused persons and with their assistance gone through the record.
13. Prosecution examined PW2 HC Bijender Singh, who was the recovery witness of the incident, who deposed that on 05.03.2003 he alongwith SI Mahesh Meena, Ct. Chanderhass and Ct. Harphool Singh were on patrolling duty in the area of Wazirpur Industrial Area and when reached at T-Point, Ashok Vihar More at about 10 PM met with ASI Rohtash, Ct. Hari Kumar, HC Ranvir and Ct. Subhash. A secret information received to SI Mahesh Meena that four/five boys were sitting in the vacant plot i.e. B-94, near STATE VS ANAND KUMAR & OTHERS//FIR NO.133/03 TO 136/03. PSASHOK VIHAR//UNDER SECTION 399/402 IPC & 25 ARMS ACT. :9: All Heavens and were planning to commit dacoity and were armed with weapons. No public person or passersby joined the raiding party then they proceeded at the spot. They heard the conversation of the accused persons and then on signal they raided. All the four/five boys on seeing the police party started running in different sides of the plot then they jumped into the plot via boundary wall. He apprehended accused Anand Kumar and on his search one button actuated knife was recovered. SI Rohtash apprehended accused Santosh and one country made pistol was recovered. HC Ranbir Singh apprehended accused Ashok Kumar (PO) and one button actuated knife was recovered from his possession. Two other boys namely Sandeep and another boy whose name he does not remember were apprehended by SI Mahesh Meena and they were having iron rods were also recovered. He proved the sketch of knife Ex.PW2/A, which was recovered from Anand Kumar and its seizure memo Ex.PW2/B. He further proved preparation of rukka by him Ex.PW2/C, took out by Ct. Chanderhass.
STATE VS ANAND KUMAR & OTHERS//FIR NO.133/03 TO 136/03. PSASHOK VIHAR//UNDER SECTION 399/402 IPC & 25 ARMS ACT. :10:
14. In the cross examination he deposed that they deposed that they were not having arms or ammunition. The public persons were also passing there but no names recorded, who refused to join the proceedings. He further deposed that he cannot say whether accused persons were sitting or standing. He denied the suggestion that accused persons were falsely implicated and no recovery has been effected from them.
15. PW3 Ct. Subhash Chand also appeared in the witness box and corroborated the facts stated by PW2 Ct.Bijender Singh. He proved the seizure of Katta alongwith cartridge Ex.PW3/A and sketch of katta and cartridge Ex.PW3/B and arrest of accused Santosh Kumar Ex.PW3/C. He identified the katta Ex.PX and cartridge Ex.PY. PW4 Ct. Chanderhass also appeared in the witness box and his examination cannot be read in the evidence as he has not been completely examined as his examination in chief was deferred on 05.10.2007 and never completely examined. PW5 Ct. Harphool Singh another member of STATE VS ANAND KUMAR & OTHERS//FIR NO.133/03 TO 136/03. PSASHOK VIHAR//UNDER SECTION 399/402 IPC & 25 ARMS ACT. :11: raiding party appeared in the witness box and proved the recovery of two rods from the possession of Accused Sanjeev @ Sandeepa and Mehdner Ex.PW4/A and Ex.PW4/B. He admitted in the cross examination that no public person included in the raiding party and no action was taken by the IO.
16. In the cross examination, he deposed that plot number 93-95 are constructed factories, no public person was called from the adjoining factories. All the accused persons are sitting on a vacant plot. He denied that no knife or pistol were recovered from the accused persons. He has also confronted to his statement Ex.PW5/DA recorded under Section 161 Cr.P.C where the fact regarding recovery of iron rod from right hand of the accused Sanjeev @ Sandeepa is not mentioned.
17. PW6 HC Raj Singh, who investigated the FIR No.134/03 under Section 25 Arms Act . He proved the arrest of the accused Ashok Singh vide memo Ex.PW6/A and STATE VS ANAND KUMAR & OTHERS//FIR NO.133/03 TO 136/03. PSASHOK VIHAR//UNDER SECTION 399/402 IPC & 25 ARMS ACT. :12: deposited the case property in the malkhana. PW7 Ct. Hari Kumar another police official who joined the raiding party. PW8 HC Ranbir Singh another raiding party witness. PW7 (wrongly numbered as PW9), who is examined. PW10 ASI Roshan Lal Katarai, who has joined the investigation after registration of the FIR No.135/03 against the accused Anand Kumar. PW11 SI Harun Ahmad, who investigated the FIR No.136/03, but his examination has not been completely conducted, his cross examination deferred but he failed to appear thereafter. PW12 HC Ram Roop proved the permission granted under Section 39 Arms Act by R.S. Yadav the then Additional DCP Ex.PW12/A.
18. I have gone through the testimonies of all the police witnesses and most important witness of the prosecution is Investigation Officer SI Mahesh Chand. Seven year are sufficient to prosecution to examine the IO SI Mahesh Chand. His absence is fatal to the prosecution as all the important aspect of the Investigation and recovery not proved on record. There are material contradictions among STATE VS ANAND KUMAR & OTHERS//FIR NO.133/03 TO 136/03. PSASHOK VIHAR//UNDER SECTION 399/402 IPC & 25 ARMS ACT. :13: the other raiding party member who appeared in the witness box. Especially, in the cross examination brought by the defence counsel. The permission under Section 39 Arms Act is also proved in accordance with the law. PW12 HC Ram Roop never worked with Additional DCP R.S. Yadav, who granted the sanction. The witnesses from CFSL also not examined to prove the fact that the recovered Katta in fact was in working condition. The absence of Investigation Officer SI Mhesh Chand and other witness MHC(M), who prove the link evidence and depositing of the case property after recovery, also not proved by the prosecution.
19. Hence, on the basis of above observations and discussions, the prosecution failed to prove the charges against all the four accused persons under Section 399/402IPC and against accused Anand and Santosh under Section 25 Arms Act, therefore, all the accused persons are acquitted. Their bail bonds and surety bonds are discharged. However, it is made clear that accused Ashok Singh is STATE VS ANAND KUMAR & OTHERS//FIR NO.133/03 TO 136/03. PSASHOK VIHAR//UNDER SECTION 399/402 IPC & 25 ARMS ACT. :14: Proclaimed Offender, therefore, evidence recorded may be treated as evidence under Section 299Cr.P.C. Copy of Judgment be place in each file. Session file be consigned to record room.
(SANJAY KUMAR) Announced in the open Addl. Sessions Judge-1(NW) Court today 04.05.2010. Rohini Courts, Delhi.
STATE VS ANAND KUMAR & OTHERS//FIR NO.133/03 TO 136/03. PSASHOK VIHAR//UNDER SECTION 399/402 IPC & 25 ARMS ACT.