Delhi District Court
State vs ) Mukesh @ Mukki on 13 March, 2012
IN THE COURT OF SH. VIRENDER KUMAR GOYAL
ADDL SESSIONS JUDGE: FAST TRACK COURT
ROHINI:DELHI
SC No. 73/01/10
Unique Identification No. 02404R0233392010
State
Versus
1) Mukesh @ Mukki
Son of Riju Ram
R/o C1802, Jahangir Puri,
Delhi.
2) Alamgir
Son of Sheikh Amjed
R/o C135, Jahangir Puri,
Delhi.
3) Mohd. Nafis
Son of Sh. Mohd. Nisar
R/o Jhuggi No. 150, CD Park,
Jahangir Puri, Delhi.
4) Chotu Khan
Son of Aahad Khan
R/o Jhuggi No. C310,
Near C64, Jahangir Puri, Delhi.
FIR No. 71/10
PS -Swaroop Nagar
U/s. 186/353/307/34 of IPC
Date of institution of the case: 07/09/2010
Arguments heard on: 27/02/2012
Date of reservation of order:27/02/2012
Date of Decision: 13/03/2012
SC No. 73/01/10 1/16
JUDGMENT
This case was registered on the ruqqa given by SI Sanjeev Kumar Verma on 10/06/2010 against the accused persons U/s. 186/353/307/34 of IPC and &/s. 25/27 of Arms Act.
During investigation, copy of DD entry was collected. Rough site plan of the place of occurrence was prepared. Sketch of the recovered katta and cartridge was prepared. It was seized by preparing a memo.
Accused Alamgir, Chhotu Khan, Mohd. Nafees and Mukesh @ Mukki were arrested by preparing memos. Their personal searches were prepared. Their disclosure statements were recorded.
Complaint U/s. 195 of Cr.P.C. was obtained. Case property was sent to FSL and report was also obtained. Sanction U/s. 39 of Arms Act was also obtained and on completion of investigation, chargesheet was filed U/s. 186/353/307/34 of IPC and U/s. 25/27 of Arms Act.
Case was committed to the Court of Session on 21/09/2010 and was received on 24/09/2010.
After hearing the arguments on the point of charge, charged was framed U/s. 186/34 of IPC, U/s. 353/34 of IPC and U/s. 307/34 of IPC against all the four accused persons, to which, they pleaded not guilty and claimed trial. Separate charges U/s. 25 of Arms Act and U/s. 27 of Arms Act were also framed against accused Mukesh @ Mukki, to which, he pleaded not guilty and claimed trial.
To prove its case, prosecution has examined PW1 to PW12 in all. On completion of evidence of the prosecution, statements of all the accused persons SC No. 73/01/10 2/16 were recorded U/s. 313 Cr.P.C., wherein they have denied the case of the prosecution and have stated that they are innocent and have been falsely implicated in this case.
I have heard learned Amicus Curiae Ms. Usha Rani and Sh. Himanshu Buttan for the accused persons and have gone through the evidence brought on record with material produced.
According to DD No.5A dated 10/06/2010, which was got recovered by SI Sanjeev Kumar Verma, at about 12.25 a.m. night, he received secret information about accused Mukesh Dacoit with his associates roaming in the area of Nangli Poona, Samsung godwn, to commit some offence, which was given to the SHO and he was directed to proceed with the matter. So, he along with Constable Anil, Constable Shiv Kumar, Constable Vijender, Constable Surender, Constable Namdev, Constable Attar Singh, Constable Karamveer and Constable Virender in gypsy No. DL1CJ4815 left for Samsung godown. Secret informer did not accompany them.
Accordingly, HC Karamveer has been examined as PW1. Constable Vijedner has been examined as PW4. Constable Virender has been examined as PW5. Constable Namdev has been examined as PW6. Constable Anil has been examined as PW7. Constable Attar Singh has been examined as PW8. Constable Surender has been examined as PW10 and IO SI Sanjeev Kumar Verma has been examined as PW11.
PW11 SI Sanjeev Kumar Verma has stated that in the intervening night of 09/10.06.2010, he was posted as SI at PS Swaroop Nagar. On that day, he along with PW1 Constable Karamveer Singh was present in the area of PS Swaroop SC No. 73/01/10 3/16 Nagar. One secret informer met him and told that Mukesh Dacoit will come with his other associates to commit dacoity at Samsung Godown in Nangli Poona. On receipt of this information, he reached at PS Swaroop and told about secret information to SHO. It was reduced into writing in DD register. Thereafter, SHO directed him to organize a raiding party and to apprehend the suspects.
Learned defence counsel has contended that according to DD No. 5A dated 10/06/2010, SI Sanjeev Kumar Verma has nowhere recorded that secret informer met him in the area of PS Swaroop Nagar, while he was on patrolling duty, but simply, it is recorded that secret informer informed him about the information, which he further gave to SHO on telephone. Learned defence counsel has further contended that according to the cross of PW11 SI Sanjeev Kumar Verma, secret informer met him at about 12.15 a.m. at a distance of 23 kilometers from PS and he left the PS at about 12.30 a.m. night.
Learned defence counsel has further contended that DD was recorded at 12.25 a.m. night and raiding party was organized. Eight police officials were collected and raiding party was prepared, which does not seem to be probable that within five minutes, raiding party was prepared and they left the PS at 12.30 a.m. night.
Learned defence counsel has further contended that according to DD No.5A dated 10/06/2010, police party left in gypsy No. DL1CJ4815 for the spot, whereas in the cross examination, PW11 SI Sanjeev Kumar Verma has stated that he left the PS on foot and also on motorcycle, which shows that he has deposed falsely contrary to DD No.5A.
PW1 HC Karamveer has stated that in the intervening night of SC No. 73/01/10 4/16 09/10.06.10, he received secret information, while he was on patrolling duty. He informed about the information to the SHO and on the direction of SHO, raiding party was formed under the supervision of SI Sanjeev Kumar Verma.
In the cross examination, PW1 HC Karamveer has stated that he was on patrolling duty from 6.00 p.m. to 10 p.m. and secret informer met him in the area at about 9.00 p.m. He informed the SHO about the secret information after returning from patrolling duty and they reached in the PS at 12.25 a.m. night. Learned defence counsel has contended that this is contrary to DD No. 5A because this DD No.5A was itself recorded at 12.25 a.m. night and more so, no DD entry has been placed on record to prove the fact that PW1 HC Karamveer Singh was on patrolling duty from 6.00 p.m. to 10 p.m. Learned defence counsel has contended that it is also contradicted from the deposition of PW1 HC Karamveer as to whether the secret information was received by PW11 SI Sanjeev Kumar Verma or by PW1 HC Karamveer Singh. Learned defence counsel has further contended that if DD No.5A was recorded at about 12.25 a.m. night, then after organizing the raiding party, police party could not have reached at the spot at about 12.25 a.m. night because according to cross examination of PW11, the distance between the spot and PS was about 23 kilometers.
PW4 Constable Vijender has stated that in the intervening night of 09/10.10.2006, he was posted at PS Swaroop Nagar and was on patrolling duty with PW1 Constable Karamveer Singh in the area of Village Nangli. Meanwhile, Secret information was received by PW1 Constable Karamveer. So, they came back to PS and informed the SHO, who briefed SI Sanjeev Kumar to prepare a SC No. 73/01/10 5/16 raiding party and they left for Samsung godwon at 12.15 a.m. night.
Again, learned defence counsel has contended that no DD has been placed on record that PW4 Constable Vijender was also on patrolling duty with PW1 HC Karamveer Singh and further they left the PS at about 12.15 a.m. night, whereas according to DD No.5A, which was recorded about the secret information at about 12.25 a.m. night and thereafter, raiding party was organized, which seems to be improbable that police party could have left the PS at about 12.15 a.m. night.
Learned defence counsel has contended that according to cross of PW4 Constable Vijender, they left the PS in private vehicles and these were motorcycles and IO was in the car and they left the PS at about 12 p.m., which is again contrary to the contents of DD No.5A. So, the witnesses cannot be relied upon.
Learned defence counsel has further contended according to cross of PW6 Constable Namdev, secret information was received at about 12.30 a.m. night on that day as he was on night duty. The raiding party was formed in the PS. They left the PS at about 12.40 a.m. night. IO was in a car. He was on his motorcycle, which is again contrary to the contents of DD No. 5A, which shows that all these proceedings are false and fabricated.
Learned defence counsel has further contended that PW7 Constable Anil has stated in the cross examination that secret information was received in the PS at about 12.40 a.m. night. Immediately, they left the PS. The raiding party was formed in the PS. They were in police gypsy and reached at the spot at about 1.00 a.m. night which is not corroborated by other witnesses.
Learned defence counsel has further contended that according to cross SC No. 73/01/10 6/16 examination of PW8 Constable Attar Singh, they left the PS at about 9.25 p.m. and SI Sanjeev Kumar had made departure entry vide DD No.5A. They left the PS in private vehicles and government gypsy. He does not remember, who was in which vehicle. These were motorcycle and car. So, again PW8 Constable Attar Singh has not corroborated about the time, when they left the PS, which is according to him is 9.25 p.m., whereas DD No.5A was recorded at about 12.25 a.m. night. So, according to PW8 Constable Attar Singh, they left the PS even before receiving the information from secret informer. Learned defence counsel has further contended that contents of DD No.5A have not been disputed and PW8 constable Attar Singh has admitted that SI Sanjeev Kumar Verma had made departure entry vide DD No.5A.
Learned defence counsel has further contended that even PW10 Constable Surender has stated in the cross examination that they left the PS in the night at about 12.25 a.m. and DD No.5A was made. They left the PS on motorcycle and car, which again is contradictory to the contents of DD No.5A. So, the entire proceedings have been falsely fabricated against the accused persons.
According to PW11 SI Sanjeev Kumar Verma, the police party reached near Samsung godown, Nangli Poona, at about 12.45 a.m. night. He asked 34 drivers to join the proceedings, but none agreed. Thereafter, he organized a raiding party in two teams and just after sometime, 34 boys were seen by PW1 Constable Karamveer Singh, who were hiding themselves near the boundary of a vacant plot. On seeing them, PW1 Constable Karamveer asked them to stop. In the meanwhile, one of those boys opened fire 34 times towards PW1 Constable Karamveer Singh, but he escaped as the weapon did not fire, at which, the boy, SC No. 73/01/10 7/16 who was having katta, was overpowered by PW1 Constable Karamveer Singh with the help of PW5 Constable Virender and Constable Shiv Kumar, whose name they came to know as Mukesh @ Mukki. The country made pistol was snatched by PW1 Constable Karamveer Singh. Meanwhile, they also reached near those boys. Other accused persons were apprehended by the remaining police officials and on formal search, one live cartridge was recovered from the right side pant pocket of accused Mukesh @ Mukki. Country made katta was also opened, at which, one live cartridge was also recovered from the same.
Learned defence counsel has contended that according to PW11 SI Sanjeev Kumar Verma, they reached at the spot at about 12.40 a.m. night, but according to PW1 HC Karamveer Singh, at around 1.00 a.m., police team reached near boundary wall of godown of Samsung at vacant plot, so, there is no corroboration in the depositions of the witnesses.
PW1 HC Karamveer Singh has deposed that 34 boys were noticed by the police team, who were standing behind the boundary wall and were talking. One of the boy took out his weapon and pointed the same towards him and tried to fire. He could not manage the fire from the weapon. The said boy was apprehended by him alongwith constable Vijender and Constable Shiv Kumar, whose name they came to know as Mukesh @ Mukki. He was found having one loaded country made pistol with him. The weapon was taken into possession and Constable shiv Kumar opened the weapon and recovered the live cartridge. During the search, one another live cartridge was found in the right side pocket of pant of accused Mukesh @ Mukki.
Learned defence counsel has contended that according to PW11 SI SC No. 73/01/10 8/16 Sanjeev Kumar Verma, 34 boys were seen, who were hiding themselves near the boundary of a vacant plot and they were directed to stop, whereas according to PW1 HC Karamveer Singh, the accused persons were talking and has further denied the suggestion in the cross examination that he did not hear the conversation of the accused persons. So, the contradiction is material and goes to the root of the case, hence, the witnesses cannot be relied upon.
Learned defence counsel has further contended that according to PW11 SI Sanjeev Kumar Verma, accused Mukesh @ Mukki opened fire 34 times towards PW1 HC Karamveer singh, whereas PW1 HC Karamveer Singh has not stated so. So, it is not known whether accused Mukesh @ Mukki tried to make fire once, twice or thrice.
Learned defence counsel has further contended that PW11 SI Sanjeev Kumar Verma has nowhere deposed as to who had opened the loaded katta, whereas PW1 HC Karamvir has stated that it was opened by Constable Shiv Kumar and one live cartridge was recovered from the same.
PW4 Constable Vijender has stated that at about 12.30 a.m. night, PW1 Constable Karamveer noticed four suspects present near the boundary wall of a vacant plot. PW1 Constable Karamveer asked them to stop for checking. On hearing the call, one person, out of those four persons, whose name he came to know as Mukesh, took out one revolver like object and opened fire towards PW1 Constable Karamveer Singh twice, thrice or four times, but it misfired. Thereafter, saving themselves, they apprehended the said boy and on formal search, one live cartridge was recovered and he was handed over to PW11 SI Sanjeev Kumar Verma, who unloaded the revolver/desi katta and one live SC No. 73/01/10 9/16 cartridge was recovered.
Learned defence counsel has further contended that according to PW1 Constable Karamveer Singh, katta was unloaded by Constable Shiv Kumar, whereas according to PW4 Constable Vijender, it was unloaded by PW11 SI Sanjeev Kumar Verma and in the cross examination, PW4 Constable Vijender has stated that accused persons were apprehended from the spot, where they were sitting, which is also contrary to the depositions of PW1 Constable Karamveer Singh and PW11 SI Sanjeev Kumar Verma, who have stated that 34 boys were standing behind the boundary wall and were talking. They were asked to stop. In further cross examination, PW4 Constable Vijender has stated that accused persons were apprehended, while they were trying to escape after seeing the police party, which is also not stated either by PW1 Constable Karamveer Singh or by PW11 SI Sanjeev Kumar Verma that two constables had entered the boundary wall after jumping the same, as has come in the cross examination of PW4 Constable Vijender.
PW5 HC Virender has stated that at the spot, four boys came from the side of boundary wall of vacant plot. PW1 Constable Karamveer asked them to stop, on which, one of the boy shot fire on PW1 Constable Karamveer, but it was missed. So, it is not known whether accused persons were already present there or had reached there or were sitting behind the boundary wall in a vacant plot or they tried to flee away from the spot on seeing the police party. So, the witnesses are not inspiring any confidence.
PW6 Constable Namdev has stated that at that time, accused Mukesh had opened fire towards PW1 Constable Karamveer and Vijender. In the SC No. 73/01/10 10/16 meanwhile, he saw that one person was sitting near the boundary wall of a vacant plot near Samsung godown. He overpowered him with the help of PW10 Constable Surender. In the cross examination, PW6 Constable Namdev has stated that he had apprehended accused Mukesh @ Mukki, while he was concealing himself behind the wall. He tried to escape from his clutches, which is again contradictory to the depositions of other witnesses, who have stated that accused Mukesh @ Mukki was apprehended by them.
PW7 Constable Anil has stated that on seeing them, one of the person tried to fire at them, but the fire had missed. That person was apprehended by PW1 Constable Karamveer, PW4 Constable Vijender and Constable Shiv Kumar, whose name they came to know as Mukesh @ Mukki. At that time, he had also apprehended one person, who was hiding near the boundary wall of a vacant plot of Samsung godown, whose name they came to know as Alamgir. So, the deposition of PW7 Constable Anil is contradictory to PW6 Constable Namdev as to who had apprehended accused Mukesh @ Mukki.
PW8 Constable Attar Singh has stated that PW1 Constable Karamveer, PW4 Constable Vijender and Constable Shiv Kumar were directed to reach on the left side of boundary wall. They reached there and saw 34 suspects sitting near the boundary wall. On seeing the police party, one of the boy tried to open fire towards PW1 Constable Karamveer Singh, PW4 Constable Vijender and Constable Shiv Kumar 34 times, but the same misfired and he was apprehended. PW8 Constable Attar Singh has further stated that Constable Shiv Kumar conducted formal search of accused Mukesh @ Mukki, at which, one live cartridge was recovered from the right side pocket of his pant. Again, these facts SC No. 73/01/10 11/16 are contradictory to the depositions of the remaining witnesses, particularly PW6 Constable Namdev and also with PW11 SI Sanjeev Kumar Verma and it is doubtful whether accused Mukesh was apprehended by PW4 Constable Vijender, constable Shiv Kumar and PW1 constable Karamveer or by PW6 Constable Namdev with the help of Constable Surender. It is also doubtful as to who had conducted personal search of accused Mukesh @ Mukki and who unloaded the pistol/desi katta.
According to PW1 Constable Karamveer Singh, height of the boundary wall was 67 feet. According to PW4 constable Vijender, height of boundary wall was 34 feet. According to PW5 HC Virender, height of boundary wall was 34 feet. According to PW6 Constable Namdev, height of boundary wall was 4 to 5 feet. According to PW7 Constable Anil, height of boundary wall was about 5½ feet or 6 feet. According to PW8 Constable Attar Singh, height of boundary wall was about 34 feet. According to PW10 Constable Surender, height of boundary wall was about 4 to 5 feet and according to PW11 SI Sanjeev Kumar Verma, height of boundary wall was about 3 to 4 feet. So, it is not certain as to what was the actual height of the boundary wall and if it was about 6 to 7 feet, as deposed by PW1 Constable Karamveer Singh, then this seems to be improbable that two of the Constables had jumped the boundary wall to apprehend the accused persons. So, the contradiction is material, which is rendering the witnesses unbelievable and they cannot be relied upon.
According to PW1 Constable Karamveer Singh, all the writing work was done outside the Samsung godown, while standing on road. According to Pw4 Constable Vijender, writing work was done, while sitting under the mercury light SC No. 73/01/10 12/16 in front of the godown. According to PW5 HC Virender, in his presence, no writing work was done by the IO. According to PW6 Constable Namdev, writing work was done by PW11 SI Sanjeev Kumar Verma, while sitting in front of Samsung godown. According to PW7 Constable Anil, writing work was done on the bonnet of the gypsy. According to PW8 Constable Attar Singh, writing work was done in his presence, while sitting under the streetlight. According to PW11 SI Sanjeev Kumar Verma, all the writing work was done at the spot. So, the witnesses have contradicted each other about the place and the manner, in which, the writing work was done, which shows that the same has been fabricated against the accused persons and actually no such writing work had taken place at the spot, as deposed by the witnesses.
Learned defence counsel has contended that according to PW4 Constable Vijender, they came back to PS after 3.00 a.m. night with the accused persons in the same vehicle, in which, they had gone to the place of occurrence. The accused persons were locked up in the PS, whereas PW5 HC Virender has stated that he remained at the spot in all for about one hour. In his presence, no writing work was done by the IO. Learned defence counsel has further contended that PW6 Constable Namdev has not been able to tell as to at what time they had left the spot and when the accused persons were brought to PS,which shows that he did not join the investigation and has deposed falsely against the accused persons to make out a case against them.
Learned defence counsel has further contended that according to PW7 Constable Anil, they left the spot with the accused persons after one hour of 5.15 a.m. and there was no lockup in PS Swaroop Nagar, hence accused persons were SC No. 73/01/10 13/16 locked up in PS Jahangir Puri, whereas PW10 Constable Surender has stated that they reached at the PS at about 6.00 a.m. and accused persons were brought to PS in a private car. PW11 SI Sanjeev Verma has stated that accused persons were taken to PS from the spot on foot and he does not remember at what time they reached at the PS, which is not corroborating in any manner. Learned defence counsel has further contended that according to cross of PW11 SI Sanjeev Kumar Verma, accused persons were not locked up as after their medical examination, they were produced before the Court. So, in absence of corroboration of these facts by the witnesses, they cannot be relied upon.
PW2 ACP Sh. Jai Bhagwan has stated that on 18/08/2010, case file of this case was produced before him and after going through the same and after satisfying himself, he reached at the conclusion that accused persons had obstructed the public servants, while they were discharging their duties as such and attempted to kill the police party. So, he gave complaint U/s. 195 of Cr.P.C. Ex. PW2/A. He also attached the list of witnesses with the complaint Ex. PW2/B. PW9 Sh. N.S. Bundela has stated that on 06/09/2010, he was posted as DCP, NorthWest District. On that day, case file of this case was produced before him, which was containing report U/s. 173 of Cr.P.C. He had gone through the same alongwith other material and after satisfying himself, he granted sanction for prosecution of the accused U/s. 25/27 of Arms Act as required U/s. 39 of Arms Act and the sanction is Ex. PW9/A. PW12 is SI Jagdeep Singh. He has stated that on 14/08/2010, further investigation was handed over to him. He moved an application before ACP Jahangir Puri and obtained complaint U/s. 195 of Cr.P.C. On 31/08/2010, he SC No. 73/01/10 14/16 collected result of FSL and thereafter moved an application before DCP, North West District, for granting sanction U/s. 39 of Arms Act against accused Mukesh @ Mukki, which was given on 06/09/2010.
According to the FSL report, which is per se admissible U/s. 293 Cr.P.C., the country made pistol F1 was found in working condition and test fire was conducted successfully. Cartridges exhibited as A1 and A2 were found live of .315 bore and according to the opinion of the Assistant Director (Ballistic) of FSL, the exhibits were firearm and ammunition as defined in the arms Act 1959.
I have considered the contentions of learned Amicus Curiae on behalf of accused persons. The contradictions, as pointed out, are material, due to which, eye witnesses are not inspiring any confidence and they cannot be relied upon. All the witnesses have contradicted about the information as to by whom it was received. They have also contradicted about the fact as to how they reached at the spot and in what type of vehicles, which is also contrary to the record of the case itself. The witnesses have also contradicted about the manner in which the accused persons were apprehended and by which of the police official, who was apprehended. The witnesses have also contradicted about the surroundings of the place of occurrence, which create doubts on the testimonies of the witnesses as to whether actually they had gone to the place of incident and the incident had happened in the manner, as deposed before the Court. It is also doubtful from the testimonies of the witnesses as to whether accused Mukesh @ Mukki had opened fire towards the police officials. There is no independent public witness to the proceedings.
The witnesses have also contradicted about the height of the boundary SC No. 73/01/10 15/16 wall, which was jumped by the police officials, as deposed by them, to apprehend the accused persons. They have also contradicted about the fact as to at what time they came back to PS and how the accused persons were removed to PS. The witnesses have also contradicted about the manner in which the writing work was done at the place of occurrence. So, having so much contradictions in their depositions, it seems to be unbelievable that the police party had reached at the place of occurrence and the incident had taken place in the manner, as deposed by them. So, I am no inclined to believe them in any manner and they are not trustworthy.
Accordingly, prosecution has not been able to prove beyond reasonable doubts offences U/s. 186/34 of IPC, U/s. 353/34 of IPC and U/s. 307/34 of IPC against the accused persons, for which, all the accused persons are acquitted.
Prosecution has also not been able to prove beyond reasonable doubts offence U/s. 25/27 of Arms Act against accused Mukesh @ Mukki, for which, he is also acquitted.
Announced in Open Court on (Virender Kumar Goyal)
dated 13th of March , 2012 Additional Sessions Judge
Fast Track Court /Rohini : Delhi
SC No. 73/01/10 16/16
SC No. 73/01/10 17/16