Delhi District Court
State vs . Ravi @ Monia & Ors. on 4 February, 2023
IN THE COURT OF MS. ARCHANA BENIWAL
CHIEF METROPOLITAN MAGISTRATE,
DWARKA COURT, NEW DELHI.
FIR No. 40/2013
PS Crime Branch
U/s 186/353/120B IPC
& 25/27 Arms Act
State Vs. Ravi @ Monia & Ors.
CIS No. : 428709/2016
Date of institution of the case : 01.05.2013
Date of commission of offence : 04.03.2012 & 05.03.2013
Name of the complainant : ASI Harveer Singh
Name of accused and address : (1) Ravi @ Monia
S/o Sh. Har Kishan
R/o Vill. Barona, PS
Kharkoda, Distt. Sonipat,
Haryana.
(2) Pankaj
S/o Vinod
R/o Jhuggi No. 101/1, CD
Park, CBlock, Jahangir
Puri, Delhi.
(3) Nizam
S/o Mohd. Saleem
R/o Khasra No. 762, Rajiv
Nagar, Bhalaswa Dairy,
Delhi.
(4) Vikas Dawas
S/o Dalbir Singh
R/o Vill. Pooth Khurd, PS
Bawana, Delhi.
(5) Rahul @ Kala
S/o Narender
R/o H.No. 183 & 193,
State Vs. Ravi @ Monia & Ors.
FIR No.40 of 2013 P.S. Crime Branch Page No. 1 of 22
Sultanpur Dabas, near
Badwali Chaupal, Bawana,
Delhi.
(6) Neeraj @ Bawania
S/o Prem Singh
(already discharged vide
order dated 24.09.2013)
Offence complained of : U/s 186/353/120B/34 IPC
& 25/27 Arms Act &
174A IPC
Plea of the accused : Pleaded not guilty
Final order : Acquittal
Date on which judgment reserved : 19.11.2022
Date of judgment : 04.02.2023
- :: JUDGMENT :: -
1.The accused persons have been chargesheeted for committing offence punishable under Section 186/353/120B Indian Penal Code (45 of 1860) (hereinafter referred to as "IPC") & 25/27 of Arms Act.
2. It is the case of the prosecution that on 04.03.2012 Crime Branch received an information that one notorious criminal of Neeraj Bawania gang namely Vikas Lagarpuria was going to be produced in Dwarka Court in case FIR No. 84/12, u/s 302/201/120B IPC, P.S Chawla, Delhi and some criminals would be coming to Dwarka Courts alongwith weapons to rescue him from the custody of Delhi Police. Acting on this information, a team of police personnels of AATS / Crime Branch, Delhi laid a State Vs. Ravi @ Monia & Ors.
FIR No.40 of 2013 P.S. Crime Branch Page No. 2 of 22 trap near main gate, Dwarka Court. At about 11:30 A.M., a Swift VDI car bearing no. DL 3C CS 0111 came on the service road opposite to Dwarka Court with four persons inside. The police personnels showed them their I-cards and tried to conduct their search for weapons. All of a sudden, one person who was sitting by the side of the driver seat came out of the car with a loaded pistol and tried to fire on HC Dilbagh Singh. In the meantime, two other persons who were in the rear seat of the car came out of the car with loaded pistols and tried to escape. The driver of the car also tried to run away, while the three other accused persons scuffled with the police party in order to flee from the spot. All the four accused persons were apprehended and three country made automatic pistols of .32 bore, 18 live cartridges and one Swift VDI car were recovered from their possession. Accordingly, the present case FIR was registered in this regard against the said accused persons.
3. IO conducted the investigation. After completion of investigation, the present chargesheet was filed u/s 186/353/120B/34 IPC & 25/27/54/59 Arms Act. Cognizance of offence was taken and accused persons were summoned to face trial. The copy of chargesheet was supplied under Section 207 Cr.P.C.
4. After giving opportunity to State as well as accused persons for making submissions on charge, a charge for offence u/s 186/353/120B/34 IPC was framed against accused Vikas Dabas @ Vicky, charge for offence u/s 186/353/120B/34 IPC & 25/27 Arms Act was framed against accused Ravi @ Monia, Pankaj and Nizam, an additional charge for the offence u/s 174-A State Vs. Ravi @ Monia & Ors.
FIR No.40 of 2013 P.S. Crime Branch Page No. 3 of 22 IPC was also framed against accused Ravi @ Monia and a charge for the offence u/s 25/54/59 Arms Act was framed against accused Rahul @ Kala. All the accused persons pleaded not guilty and claimed trial.
5. The prosecution, in support of its case, has examined thirteen witnesses.
6. PW1 HC Dilbagh Singh deposed before the court that on 04.03.2013, at about 7:00 P.M., one secret informer came at P.S Crime Branch and informed that some persons of Neeraj Bawania gang were planning to release accused Vikas Lagarpuria through illegal means who was to be produced before Dwarka Court on 05.03.2013. He passed the said information to his senior officers i.e. Inspector Jai Bhagwan, who informed the ACP concerned about the same. On the next day i.e. on 05.03.2013, at about 7:00 A.M, Inspector Jai Bhagwan called the entire staff in the office and briefed the entire secret information to the staff members and a raiding party was prepared consisting of himself, Inspector Jai Bhagwan, ASI Harveer Singh, HC Azad Singh, HC Upender, HC Karambir Singh, Ct. Govinder, Ct. Rupesh and Ct. Yogender with secret informer. They left their office at about 7:30 A.M. and reached outside Dwarka Court service road at about 9:15 A.M. Thereafter, ASI Harveer requested some passers-by to join the raiding party but none agreed. Without wasting the time, Inspector Jai Bhagwan briefed the entire raiding team and instructed them to take their positions at the service road. They took their position. At about 10:30 A.M., one Swift car bearing no. DL-3CS-0111 came from the side of Dabri. The secret informer while pointing towards the car State Vs. Ravi @ Monia & Ors.
FIR No.40 of 2013 P.S. Crime Branch Page No. 4 of 22 told that the persons sitting in the said car had come to release accused Vikas Lagarpuria who was to be produced in court. Thereafter, the secret informer left the place. PW-1 further deposed that he informed Inspector Jai Bhagwan through his gestures regarding the said car. Inspector Jai Bhagwan instructed them to stop the car. The entire raiding team surrounded the car and the same was stopped. He then showed his I-card to the occupants of the car and told them that they are from Crime Branch and want to conduct their search. Upon this, the person who was sitting adjacent to the driving seat showed him a pistol and also told other person who had occupied the car to flee from there. Somehow he managed to overpower the person with the help of Ct. Rupesh. The other persons were also overpowered by the members of the raiding team. The person whom he had apprehended with the help of Ct. Rupesh on inquiry, disclosed his name as Pankaj. The person whom Inspector Jai Bhagwan had apprehended with the help of HC Karambir Singh, on inquiry disclosed his name as Vikas Dabas. The person whom HC Upender and Ct. Govinder apprehended, on inquiry disclosed his name as Nizam. The person whom ASI Harbir and Ct. Yogender apprehended, on inquiry disclosed his name as Ravi @ Monia. All the four accused persons were searched and on formal search of the accused Ravi @ Monia 06 live cartridges and one . 32 bore pistol were recovered, from the formal search of accused Nizam, 06 live cartridges and one .32 bore pistol were recovered. From the formal search of accused Vikas, nothing was recovered. The accused who had shown the pistol to him, on formal search, 06 live cartridges apart from the .32 bore pistol were recovered. The sketch of the pistol, magazine and the cartridges recovered from all the accused were prepared separately. The sketch of the State Vs. Ravi @ Monia & Ors.
FIR No.40 of 2013 P.S. Crime Branch Page No. 5 of 22 pistol, magazine and 06 cartridges recovered from accused Pankaj is Ex PW 1/A. All the pistols and cartridges recovered from the accused persons were seized separately by keeping them in a transparent container and taken into possession vide seizure memo Ex PW 1/B. All the containers were sealed with the seal of HVS. Seal after use was handed over to him. FSL form was filled up. Thereafter, a tehrir was prepared by ASI Harveer and handed over to HC Upender for the registration of the case. HC Upender went to P.S Crime Branch for registration of the case and after getting the same registered, he returned to the spot and handed over the copy to ASI Harshvardhan who was called on the spot. The documents prepared by ASI Harveer was handed over to ASI Harshvardhan alongwith the case property and the accused. Thereafter, ASI Harshvardhan prepared the site plan at the instance of ASI Harveer. ASI Harshvardhan recorded the statement of ASI Harveer. All the four accused were arrested and their personal search was conducted. The arrest memo of accused Ravi @ Monia and accused Pankaj are Ex PW 1/C1 and Ex PW 1/C2, their personal search was conducted vide memo Ex PW 1/D1 and Ex PW 1/D2. The disclosure statement of all the accused were recorded vide memo Ex PW 1/E1 (accused Ravi Monia) and Ex PW 1/E2 (accused Pankaj). Thereafter they left the spot alongwith accused and case property. The case property was deposited in P.S Crime Branch, Malviya Nagar and accused was taken to ATS, Kotwali where his (PW-1) statement was recorded by the IO. The Swift car which was used in the crime was also seized by IO ASI Harshvardhan at the spot.
7. PW-1 further deposed that as per the disclosure statement of all the accused persons, they went to the house of another State Vs. Ravi @ Monia & Ors.
FIR No.40 of 2013 P.S. Crime Branch Page No. 6 of 22 accused namely Rahul @ Kale who had provided arms and ammunition and car for the crime to the arrested accused persons but did not find him. On 11.03.2013, one secret informer informed that Rahul @ Kale will come at Rohini Court to meet some person and if raided, he can be apprehended. He passed the said information to Inspector Jai Bhagwan. Inspector Jai Bhagwan further informed about it to ACP. A raiding party was prepared consisting of himself, Inspector Jai Bhagwan, ASI Harbeer, ASI Harshvardhan, HC Upender, HC Azad, Ct. Rupesh and Ct. Govinder alongwith secret informer. On that day at about 8:30 A.M., they left the office and reached near Rohini Court at about 9:15 A.M., they requested some passes by to join the raiding party but none agreed and left the place without disclosing their names and addresses. They waited there for some time and at about 10:30 A.M., secret informer pointed out one person who was coming from the side of metro station and at his instance, they apprehended him. Thereafter, secret informer left the place. The person who was apprehended, on inquiry, disclosed his name as Rahul @ Kale. His formal search was conducted but nothing was recovered. His disclosure statement was recorded and he was arrested vide memo Ex PW 1/F. On the same day, accused Rahul @ Kale was produced before Dwarka Court and they obtained his one day PC remand to recover arms and ammunition as per his own disclosure statement. Accused was taken to his village at Sultanpur Dabas, where they requested some persons to join the investigation but none agreed. Thereafter, they reached at the house of accused Rahul Kale which was consisting of two rooms on the ground floor. From there, he got recovered one 9 mm pistol and 8 live cartridges beneath his bed. Sketch of the pistol, magazine and the cartridges State Vs. Ravi @ Monia & Ors.
FIR No.40 of 2013 P.S. Crime Branch Page No. 7 of 22 were prepared vide memo Ex PW 1/G. The recovered pistol and cartridges were seized after sealing the same with the seal of HV vide memo Ex PW 1/G. Seal after use was handed over to HC Upender. The site of recovery of pistol was also prepared vide Ex PW 1/H. Thereafter, they left the place and case property was deposited in the P.S Crime Branch. Accused was sent to lockup. His (PW-1) statement was recorded. PW-1 further deposed that on 14.03.2023, he joined the investigation with IO and he alongwith ASI Harshvardhan, Ct. Rupesh, Ct. Jagat, Ct. Vipin Tyagi reached at Dwarka Court Complex and as per the disclosure of the other accused person, IO formally arrested the accused Neeraj Bawania vide memo Ex PW 1/G. One day PC remand was also obtained and accused was taken to office crime branch where his disclosure statement was recorded. Statement of PW-1 was also recorded. This witness has correctly identified the accused in the court. He has also identified the case property vide Ex P1 (colly) to Ex P4 (colly) as well as the photographs of Swift car Ex P5 (colly). He was cross-examined by Ld. defence counsel for accused persons.
8. PW-2/Duty Officer HC Azad Singh proved the computerized copy of FIR vide Ex PW 1/A and endorsement on rukka Ex PW 1/B.
9. PW-3 HC Upender deposed on the same lines as PW-1. He has also proved the seizure memo of Swift car bearing no. DL- 3CCS-0111 vide Ex PW 3/A, arrest memo of accused vide Ex PW 3/B, personal search of accused vide Ex PW 3/C1 and Ex PW 3/C2, disclosure statement of accused vide Ex PW 3/D1 and Ex PW 3/D2, personal search memo of accused Rahul @ Kale State Vs. Ravi @ Monia & Ors.
FIR No.40 of 2013 P.S. Crime Branch Page No. 8 of 22 vide Ex PW 3/E and disclosure statement of accused Rahul @ Kale vide Ex PW 3/F. He was cross-examined by Ld. defence counsel for accused persons.
10. PW-4 ASI Harbir Singh deposed on the same lines as PW-
1. He has also proved the sketch of magazine containing 6 live cartridges vide Ex PW 4/1 and Ex PW 4/2, rukka vide Ex PW 4/3. He was cross-examined by Ld. Defence counsel.
11. PW-5 Sh. V.R. Anand, Assistant Director (Ballistic), FSL, Rohini deposed that on 14.03.2013, four sealed parcels were received in the office of FSL and the same were marked to him for examination. The parcel nos.1 to 3 were sealed with the seal of HVS and parcel no.4 was sealed with the seal of HV. The seals on the parcels were intact and as per the specimen seals...... On opening the parcel no.1, one improvised pistol 7.65 mm bore and six 7.65 mm cartridges were taken out and marked as F1 and A1 to A6 respectively. On opening the parcel no.2, one improvised pistol 7.65 mm bore and six 7.65 mm cartridges were taken out and marked as F2 and A7 to A12 respectively. On opening the parcel no.3, one improvised pistol 7.65 mm caliber and six 7.65 mm cartridges were taken out and marked as F3 and A13 to A18 respectively. On opening the parcel no.4, one improvised pistol 9 mm bore and eight 9 mm cartridges were taken out and marked as F4 and A19 to A26 respectively. He examined the said exhibits and prepared his report in this regard. He rendered his opinion that the improvise pistols 7.655 mm marked F1 to F3 and the improvised pistol 9 mm marked F4 were in working order and test firing was conducted successfully. The cartridges A1 to A26 were live ones. The cartridges A1, A7 State Vs. Ravi @ Monia & Ors.
FIR No.40 of 2013 P.S. Crime Branch Page No. 9 of 22 and A13 were test fired through the improvised pistols marked F1 to F3. The cartridge A19 was test fired through the improvised pistol 9 mm marked F4. The exhibits F1 to F4/A1 to A26 were covered within the definition of fire arm / ammunition as provided under the Arms Act, 1959. All the exhibits were sealed with the seal of "VARFSL Delhi" after examination. His detailed report is dated 26.04.2013 Ex PW 5/1.
12. PW-6 Inspector Jai Bhagwan deposed on the same lines as PW-1. He was cross-examined by Ld. Defence counsel.
13. PW-7 Sh. Zile Singh, retired ACP Crime Branch deposed before the court that he gave complaint u/s 195 Cr.P.C in writing vide Ex PW 7/1. He was cross-examined by Ld. defence counsel for accused persons.
14. PW-8 ASI Sube Singh has proved the DD entry no.3C dated 04.03.2013 IIIrd Battalion, Rohini Court vide Ex PW 8/1(OSR) and DD entry no. 4B dated 05.03.2013 vide Ex PW 8/2 (OSR). He deposed that the daily register dated 05.03.2013 regarding warrant and goshwara register has been destroyed vide order dated 10.10.2016, copy of order is mark A. He was not cross-examined by Ld. Defence counsel despite opportunity.
15. PW-9 HC Vinod Kumar has proved the DD entry no. 7C dated 02.03.2013 vide Ex PW 9/1(OSR), DD entry no.5D dated 02.03.2013 vide Ex PW 9/2(OSR), DD entry no.3C dated 04.03.2013 vide Ex PW 9/3(OSR), DD entry no.7C dated 04.03.2013 vide Ex PW 9/4(OSR) and DD entries no. 4D and 10D dated 04.03.2013 vide Ex PW 9/5(OSR) and Ex PW State Vs. Ravi @ Monia & Ors.
FIR No.40 of 2013 P.S. Crime Branch Page No. 10 of 22 9/6(OSR) respectively. He was not cross-examined by Ld. Defence counsel despite opportunity.
16. PW-10 SI Harshwardhan deposed on the same lines as PW-1 HC Dilbagh Singh and PW-3 HC Upender. He has also proved the site plan at the instance of ASI Harbir Singh vide Ex PW 10/1, application for production warrant of Neeraj Bawania vide Ex PW 10/2, DD entry No.4 in rojnamcha register vide Ex PW 10/3, application granting production warrant of accused Neeraj Bawania vide Ex PW 10/4, disclosure statement of accused Neeraj Bawania vide Ex PW 10/5 and detailed interrogation of accused Neeraj Bawania Ex PW 10/6. He was cross-examined by Ld. Defence counsel.
17. PW-11 Sh. Surender Kumar was the owner of Maruti Swift car bearing no. DL-3CC-S0111. He deposed that the said vehicle was seized by the police in the present case and thereafter he got the same released on superdarinama vide Ex PW 11/1. The said car was stolen and he got an FIR registered bearing no. 383/13 P.S K.N. Katju Marg. He also proved the photographs of the car vide Ex W 11/2(colly).
18. PW-12 ASI Jag Narayan deposed that on 05.03.2013, ASI Harshvardhan Singh, AATS/Crime Branch had deposited with him three plastic boxes sealed with the seal of HVS. He had entered the same in register no.19 vide Srl. no.1628 alongwith FSL form and copy of seizure memo. On the same day, ASI Harshvardhan had also deposited with him one Swift car no. DL3CCS0111 which was also entered in the register vide the aforesaid entry. Thereafter, on 11.03.2013, one more plastic box State Vs. Ravi @ Monia & Ors.
FIR No.40 of 2013 P.S. Crime Branch Page No. 11 of 22 sealed with the seal of HV was deposited with him alongwith FSL form and copy of the seizure memo which he had seized vide Srl. no. 1637. PW-12 further deposed that on 14.03.2013, all the aforesaid exhibits were sent to FSL Rohini through Ct. Yogender vide RC no. 82/21/2013. After depositing the exhibits in the FSL, Ct. Yogender had deposited the received copy of RC with him. The aforesaid exhibits were received back from FSL alongwith FSL result through HC Paramjeet. He had made endorsement in this regard in the register. The FSL result was handed over to the IO. The extracts of the aforesaid entries have been proved vide Ex PW 12/A (OSR)(Colly) and the copy of RC vide Ex PW 12/B (OSR).
19. PW-13 Sh. Bhisham Singh, DCP Cyber deposed that on 29.04.2013, the case file of case FIR No. 40/2013 dated 05.03.2013 P.S Crime Branch alongwith all relevant papers was put up before him by the IO with request of granting Sanction u/s 39 Arms Act. On perusal of the copy of the chargesheet, statements of witnesses, FSL report and other relevant documents, he granted Sanction u/s 39 Arms Act vide sanction letter Ex PW 13/A. He was cross-examined by Ld. Defence counsel.
20. No other witness was examined by the prosecution and hence, PE was closed.
21. Thereafter, separate statement u/s 313 Cr.P.C. of accused persons was recorded, wherein all the incriminating material that appeared in evidence against them, was put to them to which they stated that they are innocent and have been falsely State Vs. Ravi @ Monia & Ors.
FIR No.40 of 2013 P.S. Crime Branch Page No. 12 of 22 implicated in this case. Accused persons opted not to lead defence evidence.
22. Final arguments advanced by Ld. APP for State and ld. counsel for accused persons heard. Case file perused carefully.
23. It has come on record from the testimonies of the police witnesses as well as the IO that on 04.03.2013, HC Dilbagh Singh received information from a secret informer in AATS Crime Branch that one Vikas Lagarpuria (a member of Neeraj Bawania gang) was to be produced in Dwarka Court and five persons from Neeraj Bawania gang had conspired to help Vikas Lagarpuriya in escaping from the judicial custody. On 05.03.2013, all the members of the raiding party left for the spot in two private vehicles vide DD No.2. When they reached the spot, they took their respective positions and at the instance of the secret informer, at about 11:30 A.M they stopped a white colour Swift car bearing no. DL3CCS0111. They surrounded the said car and showed ID cards to the four persons sitting inside and tried to search the said four persons, upon which the person who was sitting on the seat next to the driver seat pointed a pistol upon HC Dilbagh and said, "har roz police dekhte hai". Then he told the other passengers to take out their pistols and the two persons sitting at the back also took out their pistols and tried to flee from the spot while pointing their pistols at the police party. However, they were overpowered. During their search, they recovered arms and ammunition from them.
FIR No.40 of 2013 P.S. Crime Branch Page No. 13 of 22
24. The relevant portion of Arms Act is reproduced as under:
Section 25: Punishment for certain offences:-
(1) whoever-
(a) Manufactures, sells, transfers, converts, repairs, tests or proves, or exposes or offers for sale or transfer, or has in his possession for sale, transfer, conversion, repair, test or proof, any arms or ammunition in contravention of section 5; or
(b) Shortens the barrel of a firearm or converts an imitation firearm into a firearm in contravention of section 6; or 2[***]
(c) bring into, or takes out of, India, any arms or ammunition of any class or description in contravention of section 11, shall be punishable with imprisonment for a term which not be less than three years but which may extend to seven years and shall also be liable to fine.
25. As per the prosecution case, the seizure memo of the recovered weapons and cartridges vide Ex. PW 1/B (colly) were prepared before the preparation of rukka. However, the said documents contain the number of the FIR which shows that either the FIR number was inserted later on or they were prepared before the time they have been shown to be prepared. Furthermore, the weapon and cartridges have been seized by the IO on 05.03.2013 and 11.03.2013 but as per the FSL report, the same have been deposited in the FSL on 11.03.2013 and 14.03.2013 respectively. Thus, the chances of tampering with the case property cannot be ruled out and the delay in sending the articles for examination is fatal for the prosecution. While holding so, I am relying upon judgment of Apex Court in Deshraj @ Dass Vs. State 83 (2000) DLT 262, wherein Apex Court while relying upon the judgments of Hon'ble Supreme Court in Baldev Singh vs. State of Punjab 1991 CAR 81 and Santa Singh vs. State of Punjab AIR 1956 SC 526, had held that the delay of 12 days in sending the samples to the CFSL State Vs. Ravi @ Monia & Ors.
FIR No.40 of 2013 P.S. Crime Branch Page No. 14 of 22 proved fatal to the prosecution.
26. In the rukka Ex.PW 4/3 as well as in the testimony of all the witnesses, who are police officials it has been stated that police officials did ask the passers-by / public persons to join the proceedings however they refused citing just reasons. However, it is clear from the testimony of all the police witnesses that no sincere efforts were made to join independent public witnesses in the recovery/investigation of the present case. PW-1 has deposed that ASI Harbir Singh had requested 4-5 public persons to join the raiding party, but none of them agreed and left the spot without disclosing their names and addresses. Due to shortage of time, no notice could be served to any public persons. PW-3 HC Upender also admitted that no notice was issued to them for non- joining the raiding party. Thus, the prosecution has failed to prove that any serious effort was made by any of the police officials of the raiding party including the IO to join public witnesses in the proceedings, which is surprising considering that the apprehension of the accused persons, as per the version of the prosecution had taken place outside Dwarka court premises in the morning time when innumerable persons are present, in and about the premises and any of them could have been joined in the raiding party as an independent witness of the prosecution. It is admitted that several advocates were also present and their presence at the spot is natural and it cannot be believed that even the advocates refused to join the raiding party consituted by the police. It is a well settled proposition that non-joining of public witness shrouds doubt over the fairness of the investigation by police.
FIR No.40 of 2013 P.S. Crime Branch Page No. 15 of 22
27. In case law reported as "Anoop Joshi Vs. State" 1992 (2) C.C. Cases 314 (HC), High Court of Delhi had observed as under:-
"18. It is repeatedly laid down by this Court in such cases it should be shown by the police that sincere efforts have been made to join independent witnesses. In the present case, it is evidence that no such sincere efforts have been made, particularly when we find that shops were open and one or two shop-keepers could have been persuaded to join the raiding party to witness the recovery being made from the appellant. In case any of the shopkeepers had declined to join the raiding party, the police could have later on taken legal action against such shopkeepers because they could not have escaped the rigours of law while declining to perform their legal duty to assist the police in investigation as a citizen, which is an offence under the IPC".
28. In a case law reported as "Roop Chand Vs. The State of Haryana" 1999 (1) C.L.R. 69, the Punjab & Haryana High Court held as under:-
"3. I have heard the learned counsel for the parties and gone through the evidence with their help. The recovery of illicit liquor was effected from the possession of the petitioner during noon time and it is in the evidence of the prosecution witnesses that some witnesses from the public were available and they were asked to join the investigation. The explanation furnished by the prosecution is that the independent witnesses were asked to join the investigation but they refused to to so on the ground that their joining will result into enmity between them and the petitioner".
"4. It is well settled principle of the law that the Investigating agency should join independent witnesses at the time of recovery of contraband articles, if they are available and their failure to do so in such a situation casts a shadow of doubt on the prosecution case. In the present case also admittedly the independent witnesses were available at the time of recovery but they refused to associate themselves in the investigation. This explanation does not inspire confidence because the police officials who are the only witnesses examined in the case have not given the State Vs. Ravi @ Monia & Ors.
FIR No.40 of 2013 P.S. Crime Branch Page No. 16 of 22 names and addresses of the persons contacted to join it is a very common excuse that the witnesses from the public refused to join the investigation. A police officer conducting investigation of a crime is entitled to ask anybody to join the investigation and on refusal by a person from the public the Investigating Officer can take action against such a person under the law. Had it been a fact that the witnesses from the public had refused to join the investigation, the Investigating Officer must have proceeded against them under the relevant provision of law. The failure to do so by the police officer is suggestive of the fact that the explanation for non-joining the witnesses from the public is an after thought and is not worthy of credence. All these facts taken together make the prosecution case highly doubtful".
29. Non joining of public witnesses despite availability casts a doubt on the fairness of the investigation. Reliance is placed on paragraph 6 of the judgment in Pawan Kumar v. The Delhi Administration, 1989 Cri.L.J. 127, wherein the Hon'ble High Court of Delhi had observed as under:
" ... 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 Subhas Bazar, there would be no person present at a crucial time like 07.30 p.m. when there is a lot of rush of commuters 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 deposed that they tried to contact the public witnesses or that they refused to join the investigation. Here is a case where no effort 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 a case of 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 I.O. should have made an earnest effort to join the independent witnesses. No attempt in this direction appears to have been made and this, by itself, is a State Vs. Ravi @ Monia & Ors.
FIR No.40 of 2013 P.S. Crime Branch Page No. 17 of 22 circumstance throwing doubt on the arrest or the recovery of the knife from the person of the accused."
30. This Court is, however, conscious that the prosecution case cannot be thrown out or doubted on the sole ground of non- joining of public witnesses as public witnesses keep themselves away from the Court unless it is inevitable, as has been held in Appabhai and another v. State of Gujarat, AIR 1988 SC 696. However, in the present case, it is not only the absence of public witnesses which raises a doubt on the prosecution but there are other circumstances too, as discussed hereinafter, which raise suspicion over the prosecution version.
31. The case property was sealed with the seal of HVS. It is not known to whom the seal of HVS belonged and it remained with a junior police official only in this case, HC Dilbagh Singh and it has not been proved that the seal was handed over to any other independent public person and therefore, the possibility of case property being tempered with cannot be ruled out. Reference may be made to the judgment of Subeg Singh v. State of Haryana, reported as 1992(3) RCR (Criminal) 596. In the judgment titled as Karambir v. State of Delhi reported as 1997 JCC 520 it has been held that absence of proof that the specimen impression of the seal was deposited with MHCM(M) along with case property results in miscarriage of justice and is fatal to the prosecution.
32. Also it seems a bit strange that though the patrolling party comprised of police officials of the ranks of Inspector (PW-6 Inspector Jai Bhagwan) & Sub-Inspector (PW-10 SI State Vs. Ravi @ Monia & Ors.
FIR No.40 of 2013 P.S. Crime Branch Page No. 18 of 22 Harshvardhan) but for undisclosed reasons, the said high ranking police officials preferred not to carry any weapons on their own, despite having secret information that the alleged members of Neeraj Bawania gang, were to appear near Dwarka Court for the purpose of assisting the escape of another gang member and they were likely to carry weapons for the said purpose as Vikas Langarpuria was to be produced in judicial custody and thus there would be adequate security near about him and the accused persons would have required to carry weapons, were they to carry out their conspiracy of assisting the escape of Vikas. Hence, it is questionable that the members of the raiding party including the Inspector and Sub Inspector came to apprehend notorious gangsters without any service weapons. All the said witnesses who apprehended the alleged gangsters have simply stated that they risked their life to catch the accused persons, however no explanation is forthcoming as to why they were not carrying any service weapons or were not wearing any bullet proof vests for their protection. Further, the same story has been repeated with regard to the recovery of weapons shown from accused Rahul @ Kala on 11.03.2013 from his house and in the similar fashion recovery has been shown from accused Rahul without joining any independent witnesses.
33. In the present case, accused Ravi @ Monia, Vikas Dabas @ Vicky, Pankaj and Nizam have also been charged for the offence punishable U/s 186/353/34 IPC. It is needless to mention that in order to bring home the guilt in respect of offence punishable U/s 186 IPC, the prosecution was required to prove the following ingredients:
State Vs. Ravi @ Monia & Ors.
FIR No.40 of 2013 P.S. Crime Branch Page No. 19 of 22
a). That the complainant and/or any other aggrieved person was / were public servants within the mean-
ing of Section 21 IPC.
b). Said public servants were performing their offi- cial duty at the time of incident; and
c). Those public servants were obstructed or pre- vented from discharging their public functions by the accused.
34. According to the Code of Criminal Procedure the cog- nizance of the offence punishable U/s 186 is barred except on a complaint U/s 195 Cr. P.C. In the present case complaint U/s 195 Cr. P.C. had been moved, the same is Ex PW 7/1. The record shows that the cognizance of offence punishable U/s 186 IPC was not taken on the basis of the complaint U/s 195 Cr. P.C and the complaint given by the concerned ACP u/s 195 C.P.C was simply tagged with the charge-sheet. Even otherwise, the same was never filed separately by the concerned ACP before this court and thus the cognizance of the offence punishable u/s 186 IPC has been taken on the basis of the chargesheet and not the complaint of the ACP u/s 195 Cr.P.C. In the circumstances in my opinion the cognizance of the offence punishable U/s 186 IPC is bad. The accused persons are therefore acquitted of the offence punishable U/s 186 of IPC.
35. So far as the offence punishable U/s 353 IPC concerned, it is distinct from the offence punishable U/s 186 of IPC. Acquittal U/s 186 IPC does not mean that the offence punishable U/s 353 IPC also goes. The constituent facts of both the offences are dis- tinct. Offence U/s 353 IPC is committed if the accused uses crim- State Vs. Ravi @ Monia & Ors.
FIR No.40 of 2013 P.S. Crime Branch Page No. 20 of 22 inal force or assaults a public servant in order to deter the public servant from discharging his duty as such public servant whereas the offence punishable U/s 186 IPC is committed if the accused obstructs the public servant from discharging his duty as such public servant. Obstruction may be with or without assault. In the circumstances in my opinion 353 IPC is a distinct offence. In having this opinion I am supported by the judgment of the Hon'ble Supreme Court cited as Durgacharan Naik V. State of Orissa AIR 1966 SC 1775.
30. It is the case of the prosecution that the accused who was sitting next to the driver of the swift car, had shown his pistol to the police party and said, "har roz police dekhte hai"
and thereafter he and the two accused sitting at the back of the car also took out their pistols and pointing the pistols towards the police party, they fled from the spot. However, none of the police witnesses who have deposed in the court have testified that any of the accused persons pointed their weapons at them. They have also testified to the effect that the accused persons, who were carrying pistols, upon being surrounded by the police officials, took out the weapons in their possession and fled from the spot. There is no testimony to the effect of any of the police witnesses that any of the accused persons had assaulted them or had used criminal force upon them or had attempted to fire their weapons at them or had even gestured to the effect. Even otherwise, as discussed above, the court has not believed upon the recovery of the weapons from any of the accused persons and thus the question of using the said weapons or attempting to use them upon the police personnels does not arise. Further, as regards the charge upon accused Ravi @ Monia for the offence u/s 174-A State Vs. Ravi @ Monia & Ors.
FIR No.40 of 2013 P.S. Crime Branch Page No. 21 of 22 IPC, not a single witness has been examined by the prosecution with regard to the execution of process u/s 82 Cr.P.C against him .
31. Hence, it is trite in criminal jurisprudence that the prosecution is under an obligation to prove its case against the accused persons beyond reasonable doubt. The standard of proof to be adopted in criminal cases is not merely of preponderance of probabilities but proof beyond reasonable doubt on the basis of cogent, convincing and reliable evidence. It is also well settled that in case of doubt, the benefit must necessarily be allowed to the accused persons.
31. Thus, in view of the foregoing analysis, this Court is of the considered opinion that there is not a shred of truth to the entire case of the prosecution and all the accused persons in the present case namely Ravi @ Monia S/o Sh. Har Kishan, Pankaj S/o Vinod, Nizam S/o Mohd. Saleem, Vikas Dawas S/o Dalbir Singh, Rahul @ Kala S/o Narender, are entitled to be exonerated of the charges against them in the present case. All the accused persons are hereby acquitted of the offence complained of.
32. Accused persons be set at liberty. Digitally signed ARCHANA by ARCHANA BENIWAL Pronounced in the open court on this BENIWAL Date: 2023.02.04 4th February 2023 15:50:18 +0530 (ARCHANA BENIWAL) Chief Metropolitan Magistrate South West District, Dwarka Courts New Delhi State Vs. Ravi @ Monia & Ors.
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