Delhi District Court
State vs . (1) Akhilesh Mishra S/O Sh. Dhan Kant ... on 23 February, 2011
IN THE COURT OF MS. NISHA SAXENA: ADDL. SESSIONS
JUDGE05(NE): KARKARDOOMA COURTS: DELHI.
SC No.61/10
Unique ID No.02402R0511852005
Date of institution:24.06.05
Date of transfer:03.03.2010
Date on which reserved for orders:16.3.2011
Date of delivery of order: 23.3.2011
State Vs. (1) Akhilesh Mishra s/o Sh. Dhan Kant Mishra
R/o C43, Street no. 7, Prem Vihar, Shiv Vihar,
Delhi (PO).
(2) Raja s/o Ram Singh
R/o Street no. 4/6, New Laxmi Model School,
Rama Garden, Karawal Nagar, Delhi.
(3) Pappu Kumar s/o Rajender Kumar
R/o House of Khajan Singh, near Prahlad
Market, Karawal Nagar Chowk, Delhi.
(4) Salim Khan s/o Jahid Khan
R/o House of Chain Pal, Gali no. 1, Rama
Garden, Delhi. (PO)
(5) Mohd. Ashraf Khan s/o Mohd Hanif Khan
R/o House of Raj Pal near SBI Vill, Karawal
Nagar, Delhi. (PO)
FIR no. 232/05 PS Gokalpuri 1/20
(6) Govind s/o Vijay Kashyap
R/o House of Vinod, Opp. State Bank of
India, Village Karawal Nagar, Delhi.
(facing trial before Juvenile Justice
Board)
(7) Sonu s/o Mahavir
R/o Near Kishan ka khet, Lala Market,
Punjab National Bank, Mukand Vihar,
Delhi.
(facing trial before Juvenile Justice
Board)
(8) Manvinder s/o Ramvir
R/o House of Chaman, Lala market,
near Kishan Ka khet, near Punjab
National Bank, Mukand Vihar, Delhi.
(facing trial before Juvenile Justice
Board)
FIR No. 232/05
PS Gokalpuri
U/s 399/402 IPC and 25/54/59 Arms Act.
JUDGMENT:
1. On 28.04.05 PW7 SI Desh Pal along with PW3 Ct. Udaiveer Singh and PW1 Ct. Rakesh was on patrolling duty near Johripur FIR no. 232/05 PS Gokalpuri 2/20 nala and at about 7.00 PM PW3 Ct. Udaiveer Singh received a secret information that eight persons would assemble in a vacant plot near gas godown, Gokalpuri who were planning to commit dacoity. Other police officials namely PW6 HC Krishan Pal, PW 4 Ct. Jaivir and PW2 Ct. Satyavir who met PW7 SI Desh Pal on the way were briefed about the secret information and a raiding party was organized. They reached at the informed place along with secret informer and found eight persons sitting in a vacant plot near a wall of the gas godown. All the members of the raiding party took different position at the spot. PW3 HC Udaiveer Singh was directed to overhear conversation of the accused. He heard conversation of eight persons out of which one person whose name was later on revealed as Akhilesh Mishra (now P.O) was saying that they would commit dacoity at Kapoor Petrol pump situated on the main road, Gokalpuri and if any police official or any public person intervened in the matter they would attack them with the weapons that they were having. On hearing the conversation PW3 Ct. Udaiveer Singh gave signal to other members of raiding party and accused persons were apprehended by the police party. On seeing the police party accused tried to run away from the spot but FIR no. 232/05 PS Gokalpuri 3/20 they were apprehended. On apprehension one chhuri Ex. P3 was recovered from the right dub of accused Raja. Chhuri was measured and its sketch Ex. PW1/C was prepared. It was seized vide seizure memo Ex. PW1/G. From the possession of accused Akhilesh Mishra (now P.O) one country made katta loaded with one live cartridge (firearm and cartridges are collectively Ex. P1) was recovered. Its sketch Ex. PW1/A was prepared and it was seized vide seizure memo Ex.PW1/E. One gupti Ex. P4 was recovered from the possession of accused Ashraf (now P.O.). Its sketch Ex. PW1/D was prepared and was seized vide seizure memo Ex. PW1/H. That from the possession of accused Pappu one chhuri Ex. P2 was recovered. Its sketch Ex. PW1/B was prepared and it was seized vide seizure memo Ex. PW1/F. One iron rod Ex. P5 was recovered from the possession of accused Salim (now P.O) and was seized vide seizure memo Ex. PW1/J. One iron rod was recovered from the possession of accused Govind. One hammer Ex. P6 was recovered from the possession of accused Sonu and another hammer Ex. P7 was recovered from the possession of accused Manvinder. PW7 SI Desh Pal Singh prepared rukka Ex. PW7/A and got the case registered vide FIR Ex. PW5/A which FIR no. 232/05 PS Gokalpuri 4/20 was recorded by PW5 SI Vikram Singh. Site plan Ex.PW7/B was prepared by PW9 SI Suman Kumar. Accused Raja, Pappu, Salim and Ashraf Khan were arrested vide arrest memo Ex. PW7/C, Ex. Pw2/A, Ex. PW1/L and Ex. PW4/A respectively. After their personal search were conducted vide memo Ex. Pw7/D, Ex. Pw 2/B, Ex. PW1/M and Ex. PW4/B respectively. Disclosure statements were recorded of all the accused vide Ex. PW1/N to Ex.PW1/R. Case property was sent to FSL and its result Ex. PX was obtained. Sanction u/s 39 of the Arms Act was also obtained from the concerned authority which is Ex. PY. After completing other necessary formalities charge sheet was filed against the accused persons u/s 399/402 IPC r/w section 25 of the Arms Act. Five accused Akhilesh Mishra, Raja, Pappu, Salim Khan and Mohd Ashraf Khan were sent for trial to the court of sessions. While three accused i.e. Govind, Sonu and Manvinder who were juvenile, were sent for trial before the Juvenile Justice Board.
2. All the accused were charged for the offences punishable u/s 399/402 IPC. While accused Mohd Ashraf Khan who was in possession of a gupti, accused Akhilesh Mishra who was in possession of one country made pistol with two live cartridges, FIR no. 232/05 PS Gokalpuri 5/20 accused Raja who was in possession of a chhuri and accused Pappu Kumar who was also in possession of a chhuri were charged for the offences punishable u/s 25 of the Arms act, to which the accused persons pleaded not guilty and claimed trial.
3. Prosecution has cited as many as nine witnesses. ● PW7 SI Desh Pal was leading the raiding party. He was on patrolling duty with PW3 Ct. Udaiveer and PW1 Ct. Rakesh when the secret information was received by PW3 Ct. Udaiveer. The other police officials i.e. PW6 HC Krishan Pal, Pw4 Ct. Jaibir Singh and PW2 Ct. Satyavir were also called at the spot and the secret information was disclosed to them and a raiding party was organized. PW5 SI Vikram Singh and PW8 HC Vinod are the formal witnesses. PW5 is SI Vikram Singh who recorded FIR and PW8 is HC Vinod who was MHC(M) at the relevant time at police station Gokalpuri. He deposited one iron rod, two iron hammers and one iron saria after making entry in register no. 19 in the malkhana. During the pendency of the proceedings accused Akhilesh, Salim and Mohd Ashraf absconded and they were declared Proclaimed Offenders vide order dated 29.05.07 and 03.03.10 respectively. Only two accused Raja and Pappu are facing FIR no. 232/05 PS Gokalpuri 6/20 trial before the court.
4. Statement of accused persons were recorded u/s 313 Cr PC in which they denied the prosecution case. It has been claimed by both the accused that they were lifted from their respective houses and thereafter police falsely implicated them in the present case and they have clean antecedents.
5. In their defence two witnesses have been examined. ● DW1 is Mannu Kumar Shrivastava brother of accused Pappu who stated that on 28.4.05 at about 7.00/7.30 AM when he was at home along with his brother Pappu, some police officials came to his house and they forcibly took away his brother accused Pappu with them.
● DW2 is Shiray Banu who also testified on similar lines stating that on 28.04.05 at about 7.00/7.15 AM she along with her husband were sleeping in their room. Some police officials came there and they inquired about her husband. They took away her husband with the promise that he would be freed after some inquiry. When he was not freed she went to the police station on the same day at about 9.30 AM. She was told that her husband would be freed in the evening and thereafter she came to know that her husband has FIR no. 232/05 PS Gokalpuri 7/20 been falsely implicated in 23 false cases.
6. I have heard Addl. PP for the State and Mr. Gaurav Vashisht, Amicus Curiae on behalf of both the accused and gone through the entire record including sworn testimony of the witnesses and the documents proved on record.
7. It has been contended by the Ld. defence counsel that there are serious discrepancies in the testimony of the prosecution witnesses. Though the accused persons were planning to commit dacoity at a public place, no public person was joined in. He has also contended that it is not practically possible that six police officials who were unarmed would apprehend eight armed accused persons and none of them would receive injuries. It is normal human behaviour that the accused persons who were armed would try to rescue themselves by attacking upon the police. However, in this case neither the accused persons nor the police had any injuries on their person. It is contended that the accused persons have been falsely implicated by the police. That no public witness was joined in at the time of recovery from the accused persons which is a serious lacuna in the prosecution case. In the present case it is stated by PW7 SI Deshpal who was heading the raiding party that on FIR no. 232/05 PS Gokalpuri 8/20 28.4.05 at about 7.00 PM Ct. Udaiveer received a secret information that eight persons would assemble in a vacant plot near gas godown Gokulpuri village who were planning to commit dacoity. The information was given to him by Ct. Udaiveer. He shared the said information with Ct. Rakesh, HC Krishan Pal, Ct. Jaivir and two other police officials whose name he did not recall were also called at the spot. Though this witness has stated about seven police officials who constituted the raiding party. All other prosecution witnesses have deposed only about six police members who constituted the raiding party. They reached near gas godown Gokalpuri on their motorcycles. The secret informer was also with them. Near the wall of gas godown he along with Ct. Udaiveer and secret informer stood and heard the conversation of those eight persons and one person whose name was later on revealed as Akhilesh Mishra was saying to other boys that they would commit dacoity at Kapoor Petrol Pump situated on the main road, Gokulpuri and if any police official or any public person intervened in the matter, they would attack them with the weapons they were having. It is highly improbable that the accused who were planning to attack the police officials or public persons if they FIR no. 232/05 PS Gokalpuri 9/20 intervened in the matter did not attack any police official when they were apprehended by them from the spot. I am fortified in my opinion by 2005 Cr. L. J. 185 Chhotey Singh & Ors. Vs State wherein it was held that if 7 or 8 persons who are criminals, assembled at a place for committing dacoity it cannot be believed that no injury could take place on either side and four of the miscreants were arrested, firearms and cartridges were recovered from their possession.
8. It has been stated by PW7 SI Desh Pal that he asked 2 or 3 persons to join raiding party but none agreed. There is discrepancy regarding the fact as to how many persons were asked to join in the investigation. PW7 SI Desh Pal specifically stated that public persons were passing through the spot. While PW1 Ct. Rakesh stated that except the accused persons no public person was present at the spot. While PW4 Ct. Jaibir Singh corroborated PW7 SI Desh Pal by stating that public persons were passing and were present near the spot. Therefore, all the witnesses have given different versions regarding the presence of public persons at the spot. It is true that there is no rule that the prosecution version cannot be accepted unless supported by public witness, however, I FIR no. 232/05 PS Gokalpuri 10/20 wish to emphasize that in the present case, the circumstances taken together with the absence of public witnesses creates reasonable doubt as to the happening, as alleged by the prosecution. As per the prosecution case, there were six persons who constituted the raiding party. PW3 Ct. Udaiveer Singh has specifically stated that six officials were there in the raiding party. While as above stated PW7 SI Desh Pal has named five officials including him who constituted the raiding party but stated that two other officials also joined the raiding party. The accused Akhilesh Mishra (PO) was armed with the country made pistol and there was a live cartridge. While accused Raja and Pappu had chhuris in their possession. Accused Salim had an iron rod. While accused Ashraf Khan had a gupti and the accused persons who are facing trial before Juvenile Justice Board are Govind, Sonu and Manvinder were also armed. Accused Govind was having iron rod and accused Sonu and Manvinder possessed hammers despite that they did not attack any police officials and those unarmed police officials managed to apprehend eight accused persons who were armed. This part of the prosecution version is not reliable and does not stand to reason.
9. PW7 SI Desh Pal has stated that after the raiding party reached FIR no. 232/05 PS Gokalpuri 11/20 at the spot they took different position. Near the wall of the gas godown he along with Ct. Udaiveer and secret informer stood. He heard the conversation of those eight persons and one person whose name was later on revealed as Akhilesh Mishra was saying to other boys that they would commit dacoity at Kapoor Petrol Pump situated on the main road, Gokulpuri and if any police official or any public person intervened in the matter they would attack them with the weapons they were having. It also does not stand to reason that the dacoits who had assembled at a public place were talking so loudly that their voice would be heard by the police party or the public person present. This part of the prosecution version can also not be accepted. In the ordinary course the accused persons would have first got assured of their safety by having a look around the place before talking of such a secret in such details i.e. giving the exact location of the place where they intended to commit dacoity. Another important point is that the police party did not recover a single penny from the possession of any of the accused except accused Raja who was having Rs. 23/ in his purse. Non recovery of coins and currency notes from the pocket of accused persons except one also makes FIR no. 232/05 PS Gokalpuri 12/20 the prosecution story doubtful.
10. The defence has examined two witnesses. DW1 Mannu Kumar Shrivastava who stated that his brother Pappu Kumar was lifted from the residence on 28.4.05 at about 7.00/7.30 AM and DW2 Shiray Banu stated that her husband Raju was taken away from the residence around 7.00/7.15 AM. The defence witnesses are entitled to have as much weight as the weight attached to the prosecution witnesses. It has been contended by the defence counsel that both the defence witnesses have categorically stated that the accused persons were lifted from the respective houses and have been falsely implicated in this case. He has submitted that while appreciating the evidence, the court has to give equal treatment to the prosecution and the defence witnesses. In support of his contention, he placed reliance upon the judgment of Hon'ble Supreme Court in Dudh Nath Pandey v State of Uttar Pradesh, (1981) 2 SCC 166 wherein it was observed by their Lordships that "Defence witnesses are entitled to equal treatment with those of the prosecution. And, Courts ought to overcome their traditional, instinctive disbelief in defence witnesses. Quite often they tell lies but so do the prosecution witnesses." Ld. Counsel for the accused FIR no. 232/05 PS Gokalpuri 13/20 has also placed reliance on another judgment of the Supreme Court in the case of Kaur Sain v State of Punjab, (1974) 3 SCC 649. In this case also their Lordships of the Supreme Court observed that the presumption that the defence witnesses always lie and prosecution witnesses always tell the truth is neither justified nor proper. Therefore, I am of the view that the testimony of defence witnesses cannot be disbelieved.
11. There are material contradictions in the statement of the police officials. The contradictions in the statements are not minor but the same are material and go to the root of the prosecution. The statements made by the prosecution witnesses are quite shaky, suspicious and fragile and the same cannot be believed. All the witnesses i.e. PW7 SI Desh Pal, PW3 HC Udaiveer and PW1 Ct. Rakesh have stated that the police officials were in uniform and they were not having any arms. While PW4 Ct. Jaibir Singh has stated that SI Desh Pal was having a weapon with him. PW2 Ct. Satyavir stated that he did not recollect what kind of weapon police officials were having with them. He did not even recollect what weapon was in his possession at that time. Though PW3 HC Udaiveer Singh has stated that SI Desh Pal warned the FIR no. 232/05 PS Gokalpuri 14/20 accused persons by saying that they have been surrounded by the police. However, PW7 SI Desh Pal does not speak of any such caution. While PW1 Ct. Rakesh stated that SI Desh Pal gave 'lalkara' any by 'lalkara' he meant PakdoPakdo. Further, though PW7 SI Desh Pal stated that all the members of raiding party reached near gas godown, Gokalpuri on their motorcycle. However, PW3 Ct. Udaiveer Singh stated that he reached on scooter. While PW2 Ct. Satyavir stated that he did not recollect which mode of transportation was used to reach at the spot. He could not say if he reached the spot by foot or by any vehicle. Then, the witnesses are not corroborating each other on the point as to the manner in which the writing work was done at the spot. PW 3 Ct. Udaiveer Singh stated that writing work was done while sitting on the ground at the spot. PW1 Ct. Rakesh stated that the writing work was done by the IO while sitting on a 'chabutra' type wall under a street light. PW6 HC Krishan Pal stated that writing work was done while sitting on the road. While PW4 Ct. Jaibir Singh stated that the writing work was done on the pavement of drain. PW6 HC Krishan Pal stated that the accused were already present at the spot when they reached. PW3 Ct. Udaiveer Singh FIR no. 232/05 PS Gokalpuri 15/20 stated that he could not identify the accused persons by their names and could not specify as to which weapon was recovered from whom. PW1 Ct. Rakesh stated that wall of gas godown was 1314 feet height. While PW4 Ct. Jaibir Singh stated that it was 15 to 16 feet. Then there is discrepancy regarding the time at which they left the spot. PW6 HC Krishan Pal who went to the spot to get the FIR registered stated that he returned to the spot after registration of the case between 12.00 night or 12.15 AM and they left the spot around 2.30 AM. While PW4 Ct. Jaivir Singh stated that they left the spot by 12.30 AM.
12. Therefore there are many discrepancies which hit the prosecution case and therefore the same cannot be believed to convict the accused. The Hon'ble Allahabad High Court has expressed its views in case titled Udal Vs State of UP (reported in 2004 Crl. L.J. 2969) that the shaky, suspicious and fragile evidence cannot be made the sound basis for conviction of the accused, when the prosecution has failed in establishing the guilt of the accused convincingly and satisfactorily beyond all reasonable doubt. Similarly, the Hon'ble Punjab & Haryana High Court in case titled as Amrik Singh Vs State of Punjab (reported in 2005 (IV) FIR no. 232/05 PS Gokalpuri 16/20 RCR (Criminal) 310) also observed that where witnesses made inconsistent statement in their evidence either at one stage or at two stages, the testimony of such witness becomes unreliable and unworthy of credence and in the absence of special circumstances, no conviction can be based on the evidence of such witnesses. In the present case, there is no other independent corroboration by any public person who was the witness to the occurrence which could support the version of the prosecution to convict the accused persons.
13. The prosecution has not explained as to how the seizure memo exhibits PW1/E, PW1/G, PW1/F, PW1/H and PW1/J bear the FIR number because the FIR of the said case was registered after the proceedings regarding the seizure of the articles had already been done by the SI. In this regard, the learned defence counsel has placed his reliance upon the judgment in case titled Pawan Kumar Versus The Delhi Administration (reported in 1987 C.C.Cases 585 (HC). The Hon'ble High Court has held in the said case that where the recovery memo of knife prepared at the spot finds place the FIR number before its registration by the duty officer, the circumstance creates doubt and the benefit should be given to the FIR no. 232/05 PS Gokalpuri 17/20 accused. In the present case also, the recovery memos bear the FIR number which were prepared much before its registration by the duty officer. Hence, the circumstances of the present case also create doubt about the involvement of the accused persons in the case.
14. Besides the above glaring contradictions in the statements of the police witnesses that the Ld. defence counsel has also drawn my attention towards the faulty investigation conducted by the police. It is well settled law that in case of secret information the investigating agency must join some independent witness. This requirement of joining of independent witnesses is only to ensure that what the official witnesses are deposing is supported by such witnesses. I am fortified my opinion by 2004 (2) CC Cases (HC). It is also highly unbelievable that the accused persons would talk at a public place giving such details about the place where dacoity was to be committed and how they would attack the police or the people intervening and that too in a loud voice and in an open public place. Taking into consideration the normal human behaviour a person hatching up a plan of committing dacoity would not make such talk so negligently and casually in such a FIR no. 232/05 PS Gokalpuri 18/20 tone which would allow anybody to hear it. Normally such instructions, as human experience tells, are given in a secret way and such instructions in this case cannot be believed to have been given in an open area. This aspect of the prosecution case itself cuts its throat and gives a death nail to its case and buries it in coffin. The evidence on record brought by the prosecution does not have sufficient material to implicate the accused persons for the charges levelled against them. The prosecution witnesses do not appear to be truthful and create a doubt in the prosecution story even regarding possession of arms.
15. Since the prosecution has miserably failed to bring home the guilt of the accused persons u/s 399/402 IPC and 25 of Arms Act, accused Raja and Pappu are acquitted of the offence punishable u/s 399/402 IPC and 25 of the Arms Act. The previous bail bond of accused Raja and Pappu are cancelled and their sureties discharged. Accused persons to furnish bail bond in terms of Section 437A Cr.P.C. File be consigned to record room with a direction to revive FIR no. 232/05 PS Gokalpuri 19/20 the same as and when accused Akhilesh Mishra, Salim Khan and Mohd Ashraf are apprehended.
Announced in open court (Nisha Saxena)
Dated:23.03.2011 Addl. Sessions Judge05(NE):
Karkardooma Courts, Delhi.
FIR no. 232/05 PS Gokalpuri 20/20