Delhi District Court
State vs Jitender @ Jitu on 20 November, 2012
IN THE COURT OF SH. VIRENDER KUMAR GOYAL
ADDL SESSIONS JUDGE: FAST TRACK COURT
ROHINI:DELHI
SC No. 01A/1/12
Unique Identification No. 02404R0180752000
State
Versus
Jitender @ Jitu
Son of Sh. Rajender Singh
R/o Village Rasoi, PS Kundli
District Sonepat, Haryana
FIR No. 102/00
PS - Bawana
U/s. 307/186/353/279/34 of IPC
& 25/27/54/59 of Arms Act
& 5 of Explosive Substance Act
Date of institution of the case: 29/05/2000
Arguments heard on: 05/11/2012
Date of reservation of order: 05/11/2012
Date of Decision: 20/11/2012
JUDGMENT
This case was registered, on the statement of Constable Gulzar Singh on 26/02/2000, U/s. 307/353/186/279/34 of IPC and 25/27 of Arms Act and Section 5 & 7 of Explosive Substance Act.
During proceedings, one hand grenade was recovered from Santro Car No. DL7CA2680. PCR Van No. DL1V3578 was seized. Rough site plan was prepared. Copies of DD entries were collected. Sketches of the SC No. 01A/1/12 1/27 revolvers and cartridges were prepared allegedly recovered from two of the accused persons. Both the revolvers were seized in this case allegedly recovered from accused Anil Bhagte and Aman @ Jitender. Car No. DL7CA2680 was also seized. Accused persons were arrested in this case. Their personal searches were conduced by preparing memos. Accused Aman @ Jitender, Anil Bhagte, Vikram and Ramesh made disclosure statements. Accused Chandbir and Rajesh Rathi also made disclosure statements.
Complaint U/s. 195 of Cr.PC was obtained and was filed. Sanction U/. 39 of Arms Act was obtained and sanction to prosecute the accused persons U/s. 5 & 7 of Explosive Substances Act was also obtained and filed.
Case property was sent to FSL for examination and FSL result was obtained. On completion of investigation, chargesheet was filed U/s. 307/186/353/279/34 of IPC, 25/27 of Arms Act and also U/s. 5 of Explosive Substance Act.
Case was committed to the Court of Session and was received on 06/07/2000.
After hearing the arguments, charge was framed against accused Vikram, Ramesh, Rajesh, Aman @ Jitender and Chandbir U/s. 279/34 of IPC, 186/34 of IPC, 353/34 of IPC and 307/34 of IPC to which they pleaded not guilty and claimed trial.
Charge U/s. 5 of Explosive Substance Act was also framed against all the accused persons to which they pleaded not guilty and claimed trial.
Charge U/s. 25 of Arms Act was framed against accused Aman @ Jitender to which he pleaded not guilty and claimed trial. SC No. 01A/1/12 2/27
During the proceedings, accused Jitender was declared proclaimed offender. Vide judgment dated 29/07/2011, accused Vikram, Ramesh @ Pappi, Rajesh Rathi and Chandbir @ Chand were acquitted in this case.
Accused Jitender @ Jeetu was arrested as PO on 19/01/2012 and further charge U/s. 174A of Cr.P.C was framed against him on 07/05/2012.
To prove its case against accused Jitender @ Jeetu after his arrest as PO, prosecution has examined PW1 to PW22 in all.
On completion of evidence of prosecution, statement of accused Jitender @ Jeetu was recorded. He has denied the case of the prosecution and pleaded false implication.
I have heard learned Adel. PP for State and Sh. S.P. Dhankar, counsel for accused and have gone through the evidence brought on record with material placed.
Finding qua offence U/s. 279/34 of IPC:
According to the case of the prosecution, firstly, accused persons were stopped by the PCR officials, who were on patrolling duty. In this case, PW2 Constable Gulzar Singh, who is complainant also, has stated that on 26/02/2000, he was posted in PCR and was on duty from 8.00 a.m. to 8.00p.m. They were on patrolling duty in the area of Kanjhawala. On that day, they were going towards Nangal Thakran Village. They saw car No. DL7CA2680 coming from the side of opposite direction. Their incharge HC Mahender Singh and he himself were standing near their vehicle. They gave signal to stop the car. However, car driver tried to escape, PCR van intercepted them, Santro car hit their vehicle. Six persons, whose name, he came to know later on as SC No. 01A/1/12 3/27 Jitender, Vikram, Ramesh, Rajesh, Chandbir and Anil, were found inside the car. Those persons started running towards fields followed by them.
Learned defence counsel has contended that deposition of PW2 Constable Gulzar Singh is per se false as in the cross examination, he has stated that they gave signal to stop the car, when it was at a distance of 78 paces from them and the car stopped 23 paces from them, which shows that the persons, who were inside the car, did not try to escape. They were not intercepted and in that process, they hit the PCR van.
PW10 retired HC Mahender Singh was with PW2 Constable Gulzar Singh in the same PCR. He has also deposed the same facts. He has deposed that driver of the Santro car stopped the car. They reached near the car. They asked them to bring down the window glasses to check the car. On this, the driver of the car raised the speed of the car. Rambir, driver of the PCR van, put the van in front of the Santro car. On this, 45 boys came out of the said car and started running towards the wheat field. He came to know their names as Anil @ Bhagte, Ramesh, Vikram, Pappi etc. Learned defence counsel has contended that from the deposition of PW10 HC Mahender Singh, it is clear that both PW2 Constable Gulzar Singh and PW10 HC Mahender Singh have contradicted each other regarding the manner in which the Santro car was stopped by them and the witnesses have further contradicted with each other as to whether they reached near the car and asked them to bring down the window glasses to check the car.
PW3 ASI Rajbir Singh has stated that on 26/02/2000, he was posted in PCR van with Commander 77. He also received information that 56 SC No. 01A/1/12 4/27 persons were present towards the fields. They reached Bhatta Road, where other PCR vehicle was already present. From the deposition of PW3 ASI Rajbir Singh, it is clear that he reached later on at the spot. So, he is not helpful to the case of the prosecution in any manner as to who was driving the Santro Car No. DL7CA2680 rashly and negligently.
Both PW2 Constable Gulzar Singh and PW10 HC Mahender Singh have also not deposed as to who was driving the Santro Car No. DL7CA2680 rashly and negligently and who accelerated the speed of the car. Even nothing has come about the identity of one of the accused, who was driving the car at that time, in the cross examination of PW2 Constable Gulzar Singh and PW10 HC Mahender Singh. The contradictions of learned defence counsel are forceful. Both these witnesses do not inspire any confidence. Accordingly, prosecution has not been able to prove in any manner as to who was driving Santro car No. DL7CA2680 in rash and negligent manner. Even there could not be any common intention, while driving the vehicle rashly and negligently by a person with other passengers sitting in the car.
Accordingly, prosecution has not been able to prove offence U/s 279/34 of IPC in any manner, for which, accused Aman @ Jitender @ Jeetu is acquitted.
Finding qua offence u/s. 186/34 of IPC:
In this respect, PW2 Constable Gulzar Singh has stated that they gave signal to stop the car, however, car driver tried to escape and as their vehicle intercepted, the same hit their vehicle.
In the cross examination, it has not come as to who was driving SC No. 01A/1/12 5/27 Santro Car No. DL7CA2680. In the cross examination, PW2 Constable Gulzar Singh has stated that they gave signal to stop the car, when it was at a distance of 78 paces from them and the car stopped 23 paces from them. From this cross examination, it is clear that the occupants of the car voluntarily did not obstruct the police officials in any manner. PW2 Constable Gulzar Singh has further stated in the cross examination that their gypsy was damaged from the front side, but he does not remember what type of damage was caused to the gypsy. It also seems to be doubtful as PW2 Constable Gulzar Singh has admitted in the cross examination that so far as he remember, accused Jitender came out from the left side of the car and ran towards wheat field. Gypsy was not produced before the Court nor was identified by the witness as to from where it was damaged. Even PW2 Constable Gulzar Singh has stated that he does not remember whether the damaged gypsy was got photographed by the IO or not. No photographs have been placed on record.
PW10 HC Mahender Singh has stated that he alongwith PW2 Constable Gulzar Singh gave signal to stop Santro Car No. DL7CA2680. The driver of the Santro Car stopped the same. They reached near the car and asked them to bring down the window glasses to check the car. On this, the driver of the said car raised the speed of the car. Rambir, driver of the PCR van put the van in front of the Santro car. On this, 45 boys came out of the said car and started running towards wheat field. This part of the deposition is in contradiction with the deposition of PW2 Gulzar Singh. PW2 Constable Gulzar Singh has nowhere stated that they reached near the car and asked the occupants of the car to bring down the window glasses to check the car and on SC No. 01A/1/12 6/27 this, the driver of the Santro car raised the speed of the car and hit the PCR van. Rather, he has stated that car driver tried to escape and as their vehicle intercepted, the same hit their vehicle.
PW3 ASI Rajbir Singh, who was also posted on other PCR Van reached there, but he reached there after the time, when the occupants of the car had already gone in the wheat field.
PW17 retired Inspector S.K. Bassi has proved his complaint U/s. 195 of Cr.PC as Ex. PW17/A. He also moved an application before SHO on 27/02/2000 for release of PCR Van no. DL1V3578 and copy of the application is Ex. PW17/B. In view of the above, the contradiction appearing in the statements of PW2 Constable Gulzar Singh and PW10 HC Mahender Singh is material, which render the witnesses unbelievable regarding the fact as to whether the occupants of the car voluntarily obstructed the police officials i.e. PW2 Constable Gulzar Singh and PW10 HC Mahender Singh alongwith driver Rambir Singh. Driver Rambir Singh has not been produced nor examined by the prosecution. So, even otherwise, there is no corroboration as to whether he had intercepted the Santro Car No. DL7CA2680 with his PCR van. There is no corroboration that PCR van was damaged due to interception as neither PCR van has been produced before the Court at any time nor the photographs of the damaged portion of the PCR has been produced before the Court and has been proved in any manner. It is also not the case of the prosecution that PW10 HC Mahender Singh asked the occupants of the car to surrender or to show any document or to come out of the car for checking. Accordingly, prosecution SC No. 01A/1/12 7/27 has not been able to prove offence U/s. 186/34 of IPC against accused Aman @ Jitender @ Jeetu, for which, he is acquitted.
Finding qua offence U/s. 353/34 of IPC & U/s. 307/34 of IPC:
In this respect, PW2 Constable Gulzar Singh and PW10 HC Mahender Singh have not stated that occupants of Santro Car No. DL7CA2680 i.e. accused persons had assaulted them or used criminal force against them, while they were on duty with intent to prevent or deter them in discharge of their duties, as after stopping the Santro Car, as deposed by the witnesses, all the occupants of the car fled away in the wheat field.
From the depositions of PW2 Constable Gulzar Singh and PW10 HC Mahender Singh, it is clear that neither occupants of Santro Car No. DL7CA2680 made any gesture or any preparation intending or knowing that the same will cause any apprehension to use criminal force against the such person. Even from the depositions of PW2 Constable Gulzar and PW10 HC Mahender Singh, it is clear that the occupants of the Santro Car No. DL7CA2680 did not use force against them without their consent intentionally in order to commit any offence.
Both PW2 Constable Gulzar and PW10 HC Mahender Singh have deposed that Santro Car No. DL7CA2680 was stopped by its driver, when they gave signal. According to PW10 HC Mahender Singh, they asked them to bring down the window glasses to check the car. On this, the driver of the Santro car raised the speed of the car and the car was intercepted by driver Rambir of PCR van. So, in no manner, the occupants of the car i.e. accused persons either assaulted or used criminal force against any of them in any SC No. 01A/1/12 8/27 manner. PW3 ASI Rajbir Singh, who was also in PCR, reached at the spot, when accused persons had allegedly fled away in the wheat field. So, he is not helpful in this manner.
PW2 Constable Gulzar Singh has admitted in the cross examination that none of the police officials fired towards the accused. No loud warning was given to the accused persons, when they started running from there. So, there was no act on the part of the police officials, which was part of their duty and the accused persons with intent to deter the same used criminal force.
PW2 Constable Gulzar Singh has deposed that out of those boys, accused Jitender fired from his revolver and the fire missed his head. At that time, accused Anil Bhagte also fired towards them. They sat in the fields in order to save themselves and accused persons also concealed themselves in the crop. So, from the deposition of PW2 Constable Gulzar Singh, it is clear that only accused Jitender (since P.O.) and accused Anil Bhagte (since expired) had fired towards the police party. Accused Jitender is proclaimed offender and accused Anil Bhagte already expired. PW2 Constable Gulzar Singh has not deposed any overt act on the part of the remaining accused persons as to whether they had fired towards the police party or not, while the police party was discharging their duties in chasing them, to deter them from discharging their duties as such public servants. PW10 HC Mahender Singh has also deposed that one boy, whose name, he came to know as Jitender, fired gunshot, which passed nearby the ear of PW2 Constable Gulzar and another boy, whose name he came to know as Anil @ Bhagte, also made fire towards PW2 Constable Gulzar. Thereafter, they all went inside the wheat field and SC No. 01A/1/12 9/27 apprehended those persons. From the depositions of both these witnesses, it is clear that remaining coaccused persons did not participate in firing towards the police party, particularly PW2 Gulzar Singh, nor anything has been deposed by the witnesses that accused Jitender and Anil have fired towards the police party at the instance of other accused persons. So, it cannot be said that there was any common intention in firing towards the police party by accused Jitender and Anil Bhagte.
PW2 Constable Gulzar Singh has also stated in the cross examination that all the accused persons fled away in different directions, which shows that they were not having any common intention to fire at the police party. Hence, the coaccused persons, who are facing trial before this Court, cannot be held liable for the firing made by accused Jitender and Anil Bhagte.
PW3 ASI Rajbir Singh also reached there in another PCR. When they all moved towards the field, they heard a shot of fire. They saved themselves in the fields. Thereafter, suspects concealed themselves in the crops. Local police and some public persons also reached there. 56 persons were apprehended.
PW3 ASI Rajbir Singh has not supported the case of the prosecution, hence, he has been cross examined by learned Addl. PP, wherein he has stated that he cannot tell whether five accused persons,namely, Vikram, Rajesh, Aman @ Jitender, Ramesh and Chanbir were apprehended by them on that day.
Learned Addl. PP has contended that PW3 ASI Rajbir Singh has SC No. 01A/1/12 10/27 admitted in the cross examination conducted by him that those persons were handed over to the local police and PW3 has further admitted that he signed the personal search memo of accused Ramesh Ex. PW3/A; personal search memo of accused Vikram Ex. PW3/B; personal search memo Ex. PW3/C of accused Rajesh Rathi, personal search memo Ex. PW3/D of accused Anil @ Bhagte and personal search memo Ex. PW3/E of accused Jitender. Learned Addl. PP has further contended that PW3 ASI Rajbir Singh has also admitted that he could not recollect the facts due to lapse of time, so he has corroborated about the apprehension of accused persons from there.
From the cross of PW3 ASI Rajbir Singh, it is also clear that local police also reached there and accused persons were apprehended from the fields.
Learned defence counsel has contended that regarding the apprehension of accused persons from the wheat field, as deposed by the witnesses, PW5 Vijender Singh and PW6 Praveen Thakran have not supported the case of the prosecution in this respect. Learned defence counsel has further contended that PW5 Vijender Singh has admitted the case of the prosecution only to the extent that on 26/02/2000, he was present in the village, but has denied that at about 4.00 p.m., he heard the noise of "PakroPakro" and he reached at Nangal Thakran Road near Purana Bhatta. Learned defence counsel has further contended that PW5 Vijender Singh has also denied that two police vehicles were present there or that he came to know that some culprits were hiding in the crops.
Learned defence counsel has further contended that PW5 Vijender SC No. 01A/1/12 11/27 Singh has stated that he came to know about the culprits in the evening hours from the villagers. So, in all, PW5 Vijender Singh is not the eye witness to the apprehension of accused persons from there. So, the police witnesses examined by the prosecution cannot be believed in any manner.
Learned defence counsel has further contended that similarly, PW6 Praveen Thakran has also not supported the case of the prosecution. He has stated that about 6/7years ago, he was present in his village Nangal Thakran and was going towards his fields. On the way, he noticed that a large crowd had gathered. Police officials were also present there. Later on, police persons told that they had caught hold some persons, but those persons were not apprehended in his presence.
Learned defence counsel has further contended that PW6 Praveen Thakran has also been cross examined by learned Addl. PP, wherein again he has not supported the case of the prosecution in any manner regarding arrest of the accused persons from the place, as deposed by other witnesses. So, the police witnesses examined regarding the arrest of accused persons and about the incident cannot be believed in any manner.
In my opinion, the contentions of learned defence counsel are somewhat forceful, in view of the deposition of PW6 Praveen Thakran, who has stated that while he was going towards his field, on the way, he noticed a large crowd gathered there and police officials were present there, shows that something had taken place at the spot. PW6 Praveen Thakran has denied that accused persons were apprehended in his presence, but has stated that police persons were present and large crowd had gathered there, which is not helpful SC No. 01A/1/12 12/27 to the prosecution in this respect.
According to deposition of PW7 Constable Satpal Singh, accused Vikram was apprehended by him. Accused Anil @ Bhagte was apprehended by PW8 Constable Sunil Kumar. Accused Rajesh was apprehended by PW9 HC Raj Kumar. Accused Ramesh @ Pappi was apprehended by PW11 HC Pankaj and accused Jitender was apprehended from the fields by PW12 HC Bharat Singh. None of the witness has stated that except accused Jitender and Anil, other coaccused had fired on the police party. Nothing was recovered from the possession of remaining accused persons.
According to cross examination of PW2 Constable Gulzar, accused persons fled away in different directions. So, they were not having any common intention to open fire, particularly on PW2 Constable Gulzar Singh, or any other member of the police party. PW7 Constable Satpal has stated in the cross examination that accused persons were apprehended within the area of 500 square yards from the place, where PCR officials had caught hold one of the accused. This fact is not corroborated by PW2 Constable Gulzar or by PW10 HC Mahender Singh that they had apprehended any of the accused.
PW7 Constable Satpal has neither stated in the examination nor in the cross examination that accused Anil Bhagte and Jitender had fired at the police party at the instance of other coaccused persons. PW8 Constable Sunil Kumar has also stated in the cross examination that PW2 Constable Gulzar had told that accused Chandbir was already apprehended, but PW2 Constable Gulzar has not stated so before the Court. Again, PW8 Constable Sunil Kumar has also not stated that accused Anil Bhagte and Jitender had fired at the police party at the SC No. 01A/1/12 13/27 instance of other coaccused persons.
PW9 HC Raj Kumar has also stated in the cross examination that when they warned the accused persons, they all stood up in the fields and they were present in the fields in different directions. At that time, none of the accused made any fire towards any of the police official.
Similarly, PW11 HC Pankaj has also not stated that accused Jitender and accused Anil @ Bhagte had fired at the police party at the instance of remaining accused persons, so these witnesses are not inspiring any confidence, hence, cannot be relied upon.
In view of above discussion, prosecution has not been able to prove offences u/s. 353 and 307 of IPC read with Section 34 of IPC against accused Aman @ Jitender @ Jeetu beyond reasonable doubts, hence, he is acquitted for these offences.
Finding qua offence U/s. 5 of Explosive Substance Act:
On 26/02/2000, PW20 SI Munshi Ram was posted at PS Bawana. On that day, he received DD No. 11A for investigation of DD No. 8A and he alongwith other staff reached at Village Nangal Thakran road, near Purana Bhatta, where PW2 Constable Gulzar handed over accused Chandbir. Constable Pankaj handed over accused Vikram and accused Jitender (since PO) was handed over to him by Constable Bharat. Constable Sunil Kumar handed over accused Anil Bhagte. Constable Raj Kumar handed over accused Rajesh Rathi and Constable Pankaj handed over accused Ramesh @ Pappi and he does not remember, who handed over to him accused Vikram.
PW20 SI Munshi Ram has further deposed that Car No. SC No. 01A/1/12 14/27 DL7CA2680 was seized from the spot vied memo Ex. Pw15/A. Car was searched and from the dashboard of the same, one hand grenade with pin was recovered. He called Bomb Disposal Squad at the spot and the hand grenade was shown to them, which was seized vide memo Ex. Pw2/A. Later on, it was dumped in a pit in the ground of PS Bawana. PCR van No. DLIV3578 was also seized vide memo Ex. PW2/B. PW20 has further stated that thereafter, he recorded statement of PW2 Constable Gulzar Ex. PW2/D, on which, he made his endorsement Ex. PW20/A and handed over the same to Constable Kuldeep for registration of the FIR. He prepared site plan of the spot Ex. PW20/B on the pointing of PW2 Constable Gulzar. Thereafter, all the accused persons were arrested vide memos Ex. PW14/A, Ex. PW15/B, Ex. PW11/A, Ex. PW15/C, Ex. PW12/C and Ex. PW15/D. He also conducted personal searches of accused persons vide memos Ex. PW15/H, Ex. PW15/E, Ex. PW15/I, Ex. PW15/F, Ex. PW15/J, Ex. PW15/G and recorded their disclosure statements. He also filled up FSL form and came back to PS with the accused persons and the case property. Case property was deposited with the MHC(M) and accused persons were locked up.
PW20 retired SI Munshi Ram has further deposed that he had also moved an application for disposal of hand grenade before the Court, but he does not know about the order as he was transferred.
PW9 HC Raj Kumar has stated that IO SI Munshi Ram had checked Santro Car no. DL7CA2680 and one hand grenade was recovered from the dashboard of the same. It was taken into possession vide memo Ex. PW2/A. PW9 has further deposed that hand grenade was directed to be diffused by the SC No. 01A/1/12 15/27 then learned Metropolitan Magistrate vide order dated 01/04/2000 and later on, report was filed by SHO, PS Bawana dated 21/01/2001 with the destruction certificate issued by Team Commander Bomb Disposal Unit, National Security guard dated 15/01/2001 and has also identified the remnants of the hand grenade, which was recovered from Santro Car No. DL7CA2680 and has been exhibited as Ex. P7.
PW10 retired HC Mahender Singh has not deposed anything about the recovery of hand grenade from Santro Car. PW11 HC Pankaj has also deposed the same facts as of PW9 HC Raj Kumar regarding the recovery of hand grenade from the dashboard of the Santro Car. PW12 HC Bharat Singh has also deposed the same facts regarding the recovery of hand grenade. PW14 HC GGae Singh has also deposed the same facts regarding the recovery of hand grenade and these witnesses have identified the remnants of hand grenade as Ex. P7.
PW16 ASI Kaplan Singh, who was working as MHC(M) at that time, has stated that on 15/01/2001, on the instructions of IO, sealed pullanda of hand grenade was taken by SI Umed Singh to further handover the same at Manesar in the National Security Guard office for destruction of the same. After diffusing and destruction, the remnants of the hand grenade were handed over to SI Umed Singh, who sealed the same with the seal of "US" and deposited the same with him.
Learned defence counsel has contended that none of the witness has deposed that hand grenade was recovered from the dashboard of the Santro car or has stated that hand grenade was sealed in a pullanda. None of the witness SC No. 01A/1/12 16/27 has been able to depose about the initials of the seal. Learned defence counsel has further contended that even PW20 retired SI Munshi Ram has also not deposed that hand grenade was sealed in a pullanda. SI Umed Singh has not been examined, who had taken the hand grenade from MHC(M) to NSG office and deposited the remnants of hand grenade in a sealed pullanda with the seal of "US" with the MHC(M).
No one has been examined to prove the fact that it was a live hand grenade. None has appeared from NSG to prove the fact that it was diffused and remnants of the hand grenade were handed over to SI Umed Singh.
Learned defence counsel has further contended that if any hand grenade was diffused by NSG, then it should have been handed over to SI Umed Singh with the seal of NSG and not with the seal of "US". SI Umed Singh has not been examined, hence, it cannot be said under what circumstances, he sealed the remnants of hand grenade with the seal of "US". Learned defence counsel has further contended that it creates doubt on the case of the prosecution as to whether any hand grenade was got diffused from NSG or not as the report has not been proved by any of the official of NSG.
Learned defence counsel has further contended that none of the witness has been able to prove the fact as who was driving the Santro car. So, it cannot be said from whose possession the hand grenade was recovered. Learned defence counsel has further contended that ownership of Santro car has not been brought on record, which could help to lead at a conclusion as to how the Santro car, if at all, which was seized by the police from the possession of accused, came in the hands of the accused persons.
SC No. 01A/1/12 17/27
On the other hand, learned Addl. PP has contended that Santro car was stolen one and was transferred to the concerned PS in Haryana. Hence, the same could not be produced before this Court during examination of witnesses except once.
Although, the identity of Santro Car No. DL7CA2680 has not been disputed by learned defence counsel for accused persons, but only once, Santro Car has been produced before the Court. The hand grenade was recovered from the dashboard, so it cannot be presumed or cannot be deemed to be proved that the hand grenade, which was lying in the dashboard of the Santro car, was within the knowledge of all the occupants of the car. Even it cannot be presumed or deemed to prove that hand grenade was within the knowledge of the driver of the car, who was one of the accused as none of the witness has been able to point out as to which of the accused was driving the Santro Car at that time.
If the Santro car was stolen, then the hand grenade could have been lying in the dashboard of the same already, when it was stolen. It is not known whether the accused persons have stolen the car or they lay hands on the car under some other circumstances. All these facts are doubtful. Hence, it cannot be said that hand grenade was recovered from the possession of any particular accused or the possession of the same was of all the accused persons.
PW19 Sh. Laxmikant Sharma, retired Additional Secretary, Home, Govt. of NCT of Delhi, has proved sanction as Ex. PW19/A U/s. 7 of Explosive Substance Act, but in view of above discussion, prosecution has not been able to prove possession of hand grenade of accused Jitender @ Jeetu. Accordingly, SC No. 01A/1/12 18/27 prosecution has not been able to prove offence U/s. 5 of Explosive Substance Act against accused Aman @ Jitender @ Jeetu, for which, he is acquitted.
Findings qua offence u/s. 25 of Arms Act According to PW2 Constable Gulzar Singh, accused Jitender was found in possession of a revolver along with cartridge and in the cross examination, he has stated that accused Jitender was apprehended by the local police. He does not know from which place accused Jitender was apprehended. He does not know as to in whose custody accused Jitender was there. PW3 ASI Rajbir Singh has admitted that he had signed the personal search memo of accused Jitender Ex. PW3/E and has further stated that accused was handed over to the local police.
PW7 Constable Satpal Singh has stated that from accused Jitender, one revolver was recovered. It was checked and after opening the same, five live cartridges and one empty cartridge were found in the chamber. The same were handed over to SI Munshi Ram, who prepared sketch of the same and the revolver with live cartridges and empty cartridge was sealed in a pullanda with the seal of "MR" and was taken into possession. PW8 Constable Sunil Kumar was also member of the raiding party, but he has not deposed about accused Jitender in any manner either for his apprehension or about the recovery of revolver and cartridges. However, he has identified one empty cartridge, which was recovered from accused Jitender as Ex. P6 and also other cartridges recovered from accused Jitender as Ex. P5 collectively with revolver as Ex. P4. PW9 HC Raj Kumar has also deposed that one revolver was recovered from SC No. 01A/1/12 19/27 accused Jitender. On checking, five live cartridges and one empty cartridge were found in the chamber. Sketch of the same was prepared. Same were sealed in a pullanda with the seal of "MR". PW10 retired HC Mahender Singh has stated that one boy, whose name, he came to know later on as Jitender, had fired a gunshot, which passed from nearby the ear of PW2 Constable Gulzar. It has also been stated by PW2 Constable Gulzar. PW11 HC Pankaj has also deposed the same facts regarding the recovery of revolver and cartridges from the possession of accused Jitender. PW12 HC Bharat Singh has also deposed about the recovery of revolver from the possession of accused Jitender.
According to PW14 HC Gaje Singh, on formal search of accused Aman, one country made pistol was recovered. Again said, he was holding one revolver. It was sealed in a pullanda with the seal of "MR" and was seized vide memo Ex. PW8/B. Similarly, PW15 ASI Aijaz Khan has deposed that revolver of accused Jitender was checked. Five live cartridges and one empty cartridge were recovered from the same. Sketch of the same was prepared Ex. PW12/B and it was sealed in a pullanda with the seal of "MR" and was seized vide memo Ex. PW12/A. PW20 SI Munshi Ram has also deposed the same facts about the recovery of revolver and cartridges and he conducted the proceedings about the same.
On the other hand, PW5 Vijender Singh, who is stated to be eye witness, has not supported the case of the prosecution in any manner regarding the incident, as happened and deposed by the police witnesses, so, he has been cross examined by learned APP, wherein he has stated that he came to know about the culprits in the evening hours from the villagers. He has denied that SC No. 01A/1/12 20/27 six culprits were apprehended in his presence, who had disclosed their names as Aman @ Jitender and other coaccused persons. PW5 has also denied that the accused persons present in the court are the same, who were apprehended by the police in his presence, rather has stated that he did not see the accused persons at the spot, so he cannot identify them. He heard the entire incident from the villagers in the village and he is not an eye witness to the case.
PW6 Parveen Thakran is also an eye witness according to the case of the prosecution, but he has also not supported the case of the prosecution and has stated that he noticed a large crowd of people gathered, while he was going towards his fields. The police officials were present there and later on, the police persons had told him that they had caught hold some persons. However, police had not apprehended any person in his presence. So, he has also not supported the case of the prosecution to the extent that accused Aman @ Jitender @ Jeetu was apprehended by the police at that very place in his presence. He has also not identified the accused persons before the Court during his examination, so, the contradictions, as appearing in the depositions of the police witnesses on one hand and PW5 Vijender Singh and PW6 Parveen Thakran on the other hand, are material. It seems to be doubtful as to whether accused Aman @ Jitender was apprehended at the spot or not and further whether any revolver with five live cartridges and one empty cartridge was recovered from his possession because according to the police witnesses, all the proceedings were conducted at the spot.
The revolver was sent to FSL and according to the report Ex. PW18/A, after examination, it was opined that the revolver, live cartridges and SC No. 01A/1/12 21/27 empty cartridge were firearm/ammunition, as defined in the Arms Act.
At that time, IO did not obtain sanction U/s. 39 of Arms Act to prosecute accused Aman @ Jitender @ Jeetu U/s. 25 of Arms Act nor after the arrest of accused Jitender @ Jeetu (PO), prosecution has been able to obtain sanction U/s. 39 of Arms Act to prosecute accused Aman @ Jitender @ Jeetu. So, in absence of the sanction to prosecute and also with the fact that the police witnesses on one hand and public witnesses on other hand have contradicted each other, the witnesses cannot be believed and are not inspiring any confidence regarding apprehension of accused Jitender @ Jeetu from that place, as deposed by the witnesses, and further that one revolver with five live cartridges and one empty cartridge was recovered from his possession. Accordingly, prosecution has not been able to prove offence U/s. 25 of Arms Act against accused Aman @ Jitender @ Jeetu in any manner, for which, he is acquitted.
Finding qua offence U/s. 174A of I.P.C. :
According to the record, accused Aman @ Jitender @ Jeetu was declared proclaimed offender on 12/01/2010 by this Court. Prior to that, NBWs of accused were issued, but the same could not be executed. Even after issuance of process U/s. 82/83 Cr.P.C., he failed to appear before the Court despite the proclamation issued in this respect. According to one letter dated 20/10/2009, accused Aman @ Jitender @ Jeetu was released from Gurgaon Jail on 18/09/2009 and he was directed to appear before this Court on the date fixed, but he did not appear. Accused Jitender @ Jeetu has not challenged his proclamation proceedings in any manner after his arrest as proclaimed SC No. 01A/1/12 22/27 offender. His family has disowned him and statements to this effect have been recorded during execution of the process U/s. 83 of Cr.P.C.
After the arrest of accused Jitender @ Jeetu as proclaimed offender, PW21 HC Naresh Kumar and PW22 Constable Amit have been examined. According to both the witnesses, on 19/01/2012, while they were posted in Special Staff, Outer District, left their office vide DD No. 7 with Constable Amit, Ct Krishan, HC Anil, Ct Kuldeep and HC Shamsher and while they were present in the area of PS Narela, they received information about the suspects involved in the occurrences of cases of PS Narela. Both the witnesses have further deposed that at about 11 a.m., secret informer came to them and told that one boy in the name of Jeetu, resident of Villge Rasoi, who was involved in various offences of the area of PS Bawana, PS Kundli and crime branch cases, would come at Narela bus terminal to meet someone and on raid, he could be apprehended.
Both the witnesses have further deposed that on receipt of this information, it was given to Inspector of Special Staff, who directed to take immediate action. On this, they alongwith the raiding party and secret informer reached at Narela bus terminal at about 11.30 a.m., where public persons were asked to join the proceedings, but none agreed.
Both the witnesses have further deposed that they took their positions and after sometime, one red colour bus stopped at Narela bus terminal and one boy came down from the backside gate of the bus and on seeing him, secret informer pointed out towards him, at which, he was apprehended by the raiding party. On inquiry, the said boy disclosed his name as Jitender @ Jeetu SC No. 01A/1/12 23/27 and on further inquiry, police also came to know that he was declared proclaimed offender in case FIR No. 102/2000, so, he was arrested U/s. 41.1 (c) of Cr.P.C. vide memo Ex. PW21/A. His personal search was conducted vide memo Ex. PW21/B and accused Jitender @ Jeetu made disclosure statement Ex. PW21/C. Kalandara U/s. 41.1 (c) of Cr.P.C. was also prepared Ex. PW21/D. Witnesses have further deposed that when the accused was produced before the Court, SI Rishi Ram from PS Bawana and HC Mahavir from Crime Branch came there and PW21 HC Naresh Kumar handed over photocopies of documents to them.
In the cross examination, it is suggest to the witnesses that accused Jitender @ Jeetu had undergone operation of one of his leg in November, 2009 and after discharge from the hospital, he was regularly living at his house as he was unable to move properly.
To prove this defence, no witness has been examined before the Court, so, his arrest as made by PW21 HC Naresh Kumar is inspiring confidence and moreover by giving suggestion only to this witness that accused was residing regularly at his house is not sufficient to disprove the fact that accused Jitender @ Jeetu was declared proclaimed offender in this case.
According to Section 174A of IPC, whosoever fails to appear at the specified place at the specified time as required by a proclamation published under subsection (1) of Section 82 of Cr.P.C. shall be punished with imprisonment for a term which may extend to three years of with fine or with both and where the declaration has been made under subsection (4) of that SC No. 01A/1/12 24/27 section, then he shall be punished with imprisonment for a term which may extend to seven years and shall also be liable to fine.
Accused Jitender @ Jeetu has been charged for offences U/s. 186/353/307/34 of IPC alongwith Section 5 of Explosive substances Act and U/s. 25 of Arms Act. So, case of the accused is falling U/s. 82 (1) of Cr.P.C. As neither accused Jitender @ Jeetu has challenged the proclamation proceedings nor he has been able to examine any defence witness to the extent that he was wrongly declared as proclaimed offender, so, prosecution has been able to prove beyond reasonable doubts from the evidence and record, offence U/s. 174A of IPC against accused Jitender @ Jeetu, for which, he is held guilty and convicted for the same.
Announced in Open Court on dated 20th of November, 2012 (Virender Kumar Goyal) Additional Sessions Judge Fast Track Court Rohini : Delhi SC No. 01A/1/12 25/27 IN THE COURT OF SH. VIRENDER KUMAR GOYAL ADDL SESSIONS JUDGE: FAST TRACK COURT ROHINI:DELHI SC No. 01A/1/12 Unique Identification No. 02404R0180752000 State Versus Jitender @ Jitu Son of Sh. Rajender Singh R/o Village Rasoi, PS Kundli District Sonepat, Haryana FIR No. 102/00 PS - Bawana U/s. 174A of IPC Date of Decision: 20/11/2012 Date of Sentence: 20/11/2012 ORDER ON SENTENCE 20/11/2012 Present. Ld. APP for the State.
Accused Jitender @ Jeetu on bail with counsel Sh. S.P. Dhankar. Heard on the point of sentence.
Learned defence counsel has contended that convict is aged about 35 years. He is having aged mother to maintain. He has been recently engaged and is going to be married. It is further contended that in all the previous cases, accused has been acquitted and no other case is pending against him. He is not a previous convict.
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It is further contended that he also remained behind bars in this case from 26/02/2000 to 24/07/2007 and from 19/01/2012 to 13/02/2012.
It is further contended that in view of above facts and circumstances, a lenient view be taken.
According to Section 174A of IPC, whosoever fails to appear at the specified place at the specified time as required by a proclamation published under subsection (1) of Section 82 of Cr.P.C. shall be punished with imprisonment for a term which may extend to three years of with fine or with both and where the declaration has been made under subsection (4) of that section, then he shall be punished with imprisonment for a term which may extend to seven years and shall also be liable to fine.
Considering the antecedents, age and character of the convict along with the custody period for which he had already remained in jail, in my view, imprisonment of three years SI with fine of Rs. 5,000/, ID nine months SI will meet the ends of justice as case of convict Jitender @ Jeetu is falling U/s. 82(1) of Cr.P.C.
Accordingly, sentence of three years SI U/s. 174A of IPC is awarded with fine of Rs. 5000/, ID nine months SI, upon the convict.
Fine deposited.
Benefit of U/s. 428 of Cr.P.C. is given to the convict. Announced in Open Court on dated 20th of November, 2012 (Virender Kumar Goyal) Additional Sessions Judge Fast Track Court Rohini : Delhi SC No. 01A/1/12 27/27