Delhi District Court
The Accused Hans Raj @ Raj Has Been Charge vs Kamraj (Proclaimed Offender) Was ... on 19 May, 2012
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IN THE COURT OF MS. NEENA BANSAL KRISHNA :
ADDITIONAL SESSIONS JUDGE-01 : NEW DELHI
In re :
SC No. 88/2004
State v. Hans Raj @ Raj
FIR No. 350/2004
PS Defence Colony.
Date of institution of the case : 12.10.2004
Date of reserving judgment/order : 09.05.2012
Date of judgment / order : 19.05.2012
JUDGMENT :
1. The accused Hans Raj @ Raj has been charge- sheeted u/s 186/353/307/34 IPC.
2. The case of the prosecution is that on 04.07.2004 on the basis of secret information a raiding team of police personnels was constituted, who went to Kamla Nehru College, Siri Fort Road and stopped the Santro Card bearing no. DL-8CV-1787, which was coming from the side of Chirag Delhi towards Siri Fort Road. Two accused viz. Hans Raj and Ashok (Proclaimed Offender) were sitting at the front seat of the car while accused A. V. Kamraj (Proclaimed Offender) was sitting on the back seat and immediately on the stopping of the car they tried to escape. Ct. Girish chased accused Hans Raj, who fired a gun shot at the Ct. Girish, but he managed to save himself and apprehended the accused Hans Raj. The accused Ashok was apprehended by Ct. Nihal and SI Ravinder Pandit, State v. Hans Raj @ Raj FIR No. 350/2004 PS Defence Colony. Page No. 1 of 14 -2- while accused A. V. Kamraj was apprehended by Ct. Bhagwati. The search of the accused persons was conducted and one buttondar knife was recovered from the accused A. V. Kamraj, while, accused Ashok was found to be in possession of countrymade pistol. The accused Hans Raj was carrying the countrymade pistol in his hand, with which he had shot at Ct. Girish, which was seized. It was found to contain empty cartridge and two live cartridges were recovered from his pocket. The said knife and pistols were sealed and seized separately and an FIR u/s 186/353/307/34 IPC and u/s 25/54/59 Arms Act was registered against the accused persons.
3. A complaint u/s 195 Cr.PC was filed by the ACP in regard to the offence u/s 186 IPC. The Sanction of the DCP u/s 39 Arms Act was obtained.
4. On completion of investigations, the charge-sheet against all the three accused u/s 186/353/307/34 IPC and u/s 25/54/59 Arms Act was filed before the Ld. MM, who committed the case to the Court of Sessions.
5. The charges u/s 186/353/307 r/w Sec. 34 IPC was framed against all the three accused viz. Hans Raj, Ashok and A. V. Kamraj, while the separate charge u/s 27/54/59 Arms Act was framed against accused Hans Raj. Charge u/s 25/54/59 was framed against accused Ashok and A. V. Kamraj separately, to which all the accused pleaded not guilty and claimed trial.
6. However, during the course of trial all the three State v. Hans Raj @ Raj FIR No. 350/2004 PS Defence Colony. Page No. 2 of 14 -3- accused absconded and process u/s 82/83 Cr.PC were initiated against them. All the three accused were declared Proclaimed Offender vide order dated 16.01.2007. However, accused Hans Raj was reported to be in J/C in criminal cases bearing FIR No. 224/08, u/s 457/380 IPC and FIR No. 48/08, PS Civil Lines, Allahabad, UP, and accordingly his production warrants were issued and the trial was continued against the accused Hans Raj.
7. The prosecution in support of its case examined 15 witnesses in all. PW1 SI Ashok Kumar, PW3 Inspector H. C. Verma, PW6 Ct. Bhagwati, PW7 Ct. Ayazuddin, PW9 HC Surinder Singh, PW10 Ct. Nihal Singh, PW11 Ct. Manoj Kumar, PW13 SI Ravinder Pandit, PW14 Ct. Girish were members of raiding team and had deposed on similar line. The sketch of knife is proved as Ex.PW1/A. The sketch of Katta and cartridges recovered from accused Hans Raj is Ex.PW1/C. The seizure memos of all the three weapons are Ex.PW1/D, Ex.PW1/E and Ex.PW1/F, respectively.
8. The rukka prepared by PW1 SI Ashok Kumar is Ex.PW1/G, which was taken to the police station by PW7 Ct. Ayazuddin, who got the FIR registered, which is proved by PW2 HC Rambir Singh as Ex.PW2/A.
9. The investigations thereafter were taken over by PW8 SI P. K. Jha, who seized the Santro Car in which the accused persons were travelling vide memo Ex.PW8/A and also seized the adhesive tapes, two number plates, an iron rod, five State v. Hans Raj @ Raj FIR No. 350/2004 PS Defence Colony. Page No. 3 of 14 -4- pieces of cotton and one tape of Johnson and Johnson, which were lying in the dicky of the car, vide memo Ex.PW8/B. The arrest memo of accused Ashok, Hans Raj and A. V. Kamraj are Ex.PW8/C, Ex.PW8/D and Ex.PW8/E respectively and their personal search memos are Ex.PW8/R, Ex.PW8/G and Ex.PW8/H. The disclosure statement of accused Hans Raj is Ex.PW8/J, while that of accused A. V. Kamraj and Ashok are Ex.PW8/K and Ex.Pw8/L, respectively. The site plan is Ex.PW8/M.
10. PW4 ACP S. K. Tomar has proved his complaint u/s 195 Cr.PC, which was filed in the Court of Ld. ACMM against the three accused, which is Ex.PW4/A.
11. PW12 Sh. K. C. Varshney, Assistant Director, Ballistics Division, FSL, Rohini, has proved his FSL report in respect of two countrymade pistols as Ex.PW8/X.
12. PW15 is the Malkhana Moharar, who has proved the Register No. 19, in which the entries in regard to the articles deposited in the Malkhana were made and the same is Ex.PW15/A.
13. The statement of accused Hansraj was recorded u/s 313 Cr.PC in which he submitted that he was present in his shop when the police officials had brought accused A. V. Kamraj to his shop in regard to a stolen mobile and had called him to the police station on the pretext of inquiry. He himself went in his Santro car to the police station, where he was detained and thereafter falsely implicated in this case after 2-3 State v. Hans Raj @ Raj FIR No. 350/2004 PS Defence Colony. Page No. 4 of 14 -5- days. He had pleaded his innocence and had claimed false implication. The accused did not adduce any evidence in his defence.
14. Ld. Addl. PP has submitted that all the police officials, who were members of the raiding party have consistently deposed about the entire incident and there is no contradiction whatsoever in their depositions. It is argued that accused Hans Raj is involved in many criminal cases of theft and had been apprehended by the police while he was trying to escape. It is, therefore, argued that the accused is liable to be convicted.
15. Ld. counsel on behalf of the accused Hans Raj has argued that it is but natural for the police witnesses to be consistent in their testimony as they were all planted witnesses. The incident had taken place on Siri Fort Road at about 02.20 p.m. and it is difficult to believe that no public witness would be available to join the proceedings. It clearly shows that the entire proceedings have been fabricated by sitting in the police station for if the incident had been genuine, the public witnesses would have definitely been joined. It is further argued that firing was done abruptly and was not aimed and none was injured. At best a case is made out u/s 324 IPC and not under u/s 307 IPC.
16. I have heard the arguments and have perused the record and the evidence led therein. My observations are as under : -
State v. Hans Raj @ Raj FIR No. 350/2004 PS Defence Colony. Page No. 5 of 14 -6-
17. PW3 Inspector H. C. Verma, who was the then SHO, PS Defence Colony had deposed that on 04.07.2004 at about 12.00 Noon while he was present in his police station, he received a secret information that notorious criminal Hans Raj along with 2-3 accomplishes would go to Hauz Khas in a Santro Car silver colour bearing no. DL-8CB-1787 from Siri Fort Road at about 02.00 - 03.00 p.m. and if raid was conducted, he could be apprehended. He recorded the said information vide DD no. 6A, dated 04.07.2004, copy of which is Ex.3/A. He then constituted a raiding party comprising of himself, Inspector Gopi Chand, SI Ashok Kumar Singh, SI Ravinder Pandit, Ct. Girish, Ct. Nihal, Ct. Manoj Kumar, Ct. Bhagwati, Ct. Surender and Ct. Ayazuddin and they proceeded towards Siri Fort Road in a private vehicle. 3 - 4 persons were requested to join the raiding team but they all expressed their inability. The members of the raiding party were divided into two teams i.e. Team A and Team B, which were headed by Inspector Gopi Chand and Inspector Verma respectively. Team A was deputed in front of 15, Siri Fort Road, while Team B went ahead around 400 yards and posted themselves at T-Point, Sadiq Nagar and the barricades were put. At about 02.15 p.m. a car was noticed coming from Archana Crossing and Inspector Gopi Chand gave signal to stop the said car. The car slowed down but suddenly speeded up and this information was conveyed by Inspector Gopu Chand to Inspector Verma, who closed the barricades and compelled the car to stop. The three accused viz. Hans State v. Hans Raj @ Raj FIR No. 350/2004 PS Defence Colony. Page No. 6 of 14 -7- Raj, A. V. Kamraj and Ashok stopped the car and tried to escape by running towards the jungle. The accused Hans Raj was sitting on the front seat of the car. While running towards the jungle he was chased by Ct. Girish, who fired at him but the bullet missed him. Accused Hans Raj was over powered by Ct. Girish. From the search of accused Hans Raj, two live cartridges were recovered and one used cartridges was recovered from the katta.
18. PW1 SI Ashok Kumar has further deposed that he had prepared a sketch of the katta and the cartridges, which is Ex.PW1/B and thereafter sealed it in a pullanda and seized it.
19. The investigations were then taken over by PW8 SI P. K. Jha, who then got the FIR registered and arrested the accused Hans Raj.
20. The testimony of PW3 Inspector Verma and PW1 SI Ashok Kumar is fully corroborated by the other members of the raiding party viz. PW6 Ct. Bhagwati, PW7 Ct. Ayazuddin, PW9 HC Surinder Singh, PW10 Ct. Nihal Singh, PW11 Ct. Manoj Kumar, PW13 SI Ravinder Pandit and PW14 Ct. Girish, who had apprehended the accused Hans Raj. There is no material contradiction brought forth in the cross-examination of any of the witnesses. The witnesses were given a suggestion that the accused had been apprehended 2 - 3 days before the alleged incident and that he had been falsely implicated in this case. However, the said suggestion had been denied by the prosecution witnesses.
State v. Hans Raj @ Raj FIR No. 350/2004 PS Defence Colony. Page No. 7 of 14 -8-
21. Though, this defence of accused Hans Raj of having been detained in the police station 2 - 3 days prior to this incident had also been taken in his statement u/s 313 Cr.PC, but no cogent evidence whatsoever had been led in support of his defence.
22. The first line of argument on behalf of accused Hans Raj is that no public witness was joined. It is no doubt true that the incident had taken place at around 02.30 p.m. on a busy road like Siri Fort Road, but it is also a fact that public persons are wary of joining the police investigations. Moreover, the consistent testimony of police witnesses cannot be discarded on the sole ground that there are police personnels especially when no contradiction brought forth in the testimony of these witnesses. This argument, therefore, is without any substance.
23. The question which now requires to be determined is the offence which have proved against the accused Hans Raj. The accused Hans Raj has been charged with the offence u/s 186 IPC for having obstructing the police in discharge of their official duty of arresting the accused. For an offence U/s 186 IPC a complaint is required to be made by the police officer to the concerned Magistrate on which the cognizance has to be taken by the Court. In the present case PW4 ACP S. K. Tomar has proved his complaint u/s 195 Cr.PC to the Court of ACMM against the accused persons u/s 186/353/34 IPC which is Ex.PW4/A. State v. Hans Raj @ Raj FIR No. 350/2004 PS Defence Colony. Page No. 8 of 14 -9-
24. In the case of "Vasudev v. State, 1994 (2) Crl. L. J 599 Delhi High Court", it was noted that the complaint u/s 195 Cr.PC cannot be handed over to the SHO nor can it be made part of the challan, which is submitted to the Court. Rather, the complaint should be addressed to the Court concerned and the cognizance should be taken on the complaint and not in the challan. Similar were the observations made in the case of "Pankaj Aggarwal and Ors. v. State, 2001 (X) AIR SC 494", wherein it was observed that in the absence of the complaint u/s 195 Cr.PC no cognizance can be taken for the offence u/s 186 Cr.PC.
25. In the present case, not only a complaint u/s 195 Cr.PC has been mae to the Ld. ACMM, but the cognizance has also been taken on the said complaint. The testimony of the prosecution witnesses sufficiently proves that the accused had tried to obstruct the police officials from discharging their official duty by trying to escape, the offence u/s 186 IPC is, therefore, proved.
26. The accused has also been charged with the offence u/s 353 IPC for having used criminal force against the public servant in discharge of his duty.
27. The criminal force has been defined u/s 350 IPC, according to which, whoever intentionally uses force on any person without that person's consent in order to commit an offence or intending by the use of such force to cause or knowing it to be likely that by such use of force, he would State v. Hans Raj @ Raj FIR No. 350/2004 PS Defence Colony. Page No. 9 of 14
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cause injury, fear or annoyance, to whom the force is used, is said to be used criminal force to that person.
28. Section 349 IPC defines "force". It says that a person is said to use force if he causes motion, change of motion or cessation of motion or he causes to any substance such motion which comes in contact with the other persons and affects his sense of feeling.
29. From the reading of Section 349 and 350 IPC, it emerges that to constitute criminal force there should be some motion caused to the person or to some substance which comes to the contact with the person and thereby causes sense of feeling in him. This criminal force can be best understood by Illustration (e) to Section 350, which provides that if A throws stone, intending or knowing it to be likely that the stone will be thus brought into contact with Z, or with Z's clothes, or with something carried by Z, or that it will strike water and dash up the water against Z's clothes or something carried by Z. Here, if the throwing of the stone produce the effect of causing any substance to come into contact with Z, or Z's clothes. A has used force to Z; and if he did so without Z's consent, intending thereby to injure, frighten or annoy Z, he has used criminal force to Z.
30. If the same analogy is applied to the present case what is established is that accused Hans Raj had fired a bullet at Ct. Girish but the said bullet did not come in contact with the Ct. Girish. The criminal force intending to injured Ct. Girish State v. Hans Raj @ Raj FIR No. 350/2004 PS Defence Colony. Page No. 10 of 14
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could have been completed had the bullet hit Ct. Girish. Since the Ct. Girish was able to save himself from the bullet and the bullet did not touch him, it cannot be said that criminal force was used upon Ct. Girish as defined u/s 353 IPC.
31. Likewise, as per the testimony of the prosecution witness, on stopping the car the accused Hans Raj had tried to escape by running towards the jungle. Again, there is no criminal force used by him on any of the members of the raiding team. The offence u/s 353 IPC is, therefore, no proved against the accused Hans Raj.
32. The other offence with which the accused Hans Raj has been charged is u/s 307 IPC. PW14 Girish has deposed that accused Hans Raj had filed the bullet at him, while he was chasing him. There is no material cross-examination done on this aspect of the testimony. The firing with the pistol at Ct. Girish could have resulted in his death had the bullet hit him. The act of firing is in itself imminently dangerous and in all probabilities would have caused such bodily injury as was likely to cause death and, thus, the offence u/s 307 IPC is proved against the accused Hans Raj.
33. The accused has been further charged with offence u/s 27/54/59 Arms Act for being found in possession of one countrymade pistol along with two live cartridges and for having fired from the same at Ct. Girish. The testimony of PW14 Ct. Girish coupled with that of PW1 SI Ashok and other prosecution witnesses has proved that accused Hans Raj while State v. Hans Raj @ Raj FIR No. 350/2004 PS Defence Colony. Page No. 11 of 14
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trying to escape had filed at Ct. Girish, though he escaped from being hit by the bullet. SI Ashok has further proved that on apprehension of accused Hans Raj, revolver found from his possession was seized and he prepared the sketch, which is Ex.PW1/C. Thereafter, he had sealed the said countrymade pistol along with the empty cartridge and two live cartridges recovered from the pocket of the accused Hans Raj vide Ex.PW1/E. The offence u/s 27 Arms Act is, thus, established against the accused.
34. To prove an office u/s 27 Arms Act, the Sanction u/s 39 Arms Act has to be obtained. The Sanction Ex.PA as granted by Additional Deputy Commissioner of Police has been admitted on behalf of the accused.
35. The testimony of the prosecution witnesses coupled with the Sanction sufficiently proves that the accused was in possession of the Katta, which he used to fire at the Ct. Girish. The offence u/s 27 Arms Act is also established.
36. The accused Hans Raj is accordingly convicted for the offences u/s 186/307 IPC and u/s 27 of Arms Act.
37. To come up for order on sentence on 31.05.2012. Announced in the open Court on 19th Day of May,2012.
(Neena Bansal Krishna) ASJ-01/PHC/New Delhi State v. Hans Raj @ Raj FIR No. 350/2004 PS Defence Colony. Page No. 12 of 14
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IN THE COURT OF MS. NEENA BANSAL KRISHNA :
ADDITIONAL SESSIONS JUDGE-01 : NEW DELHI In re :SC No. 88/2004
State v. Hans Raj @ Raj FIR No. 350/2004 PS Defence Colony.
Date of institution of the case : 12.10.2004 Date of reserving judgment/order : 09.05.2012 Date of judgment : 19.05.2012 Date of Order on Sentence : 31.05.2012 ORDER ON SENTENCE :
1. The accused Hans Raj has been convicted u/s 186/307 IPC and u/s 27/54/29 Arms Act.
2. Ld. Addl. PP on behalf of the State has argued that the accused Hans Raj @ Raj is involved in four criminal cases and is a habitual offender. Severe punishment be awarded to the accused Hans Raj @ Raj so that it acts as a deterrent against the commission of offences in future.
3. Ld. counsel on behalf of the convict has submitted that the four cases in which the accused is involved are theft cases u/s 379/411 IPC and they are all of outside Delhi.
Moreover, no person was injured in the incident and a lenient view may be taken against him.
4. I have heard the arguments and perused the record. The accused is in judicial custody in a case in Gujarat.
State v. Hans Raj @ Raj FIR No. 350/2004 PS Defence Colony. Page No. 13 of 14
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In the present case on the basis of secret information, the police attempted to apprehend him and he tried to escape by shooting at a police official. The objective of punishment is not only to provide restitution and rehabilitation but in appropriate cases, it has to act as deterrent and retribution.
5. Considering the facts and circumstances of the case, accused Hans Raj is sentenced to undergo three months rigorous imprisonment u/s 186 IPC. Considering that none was injured on account of shooting by the accused, he is further sentenced to undergo rigorous imprisonment for one year u/s 307 IPC and a fine of Rs.2,000/-, in default of payment of which to further undergo simple imprisonment for four months. He is further sentenced to undergo rigorous imprisonment for three years u/s 27/54/59 Arms Act, with a further fine of Rs.5,000/-, in default of payment of which he shall undergo simple imprisonment for six months. All the sentences shall run concurrently. Benefit of Section 428 Cr.PC shall be given to the convict Hans Raj.
6. Copy of judgment and order on sentence is given to the convict free of cost.
7. File be consigned to the Record Room.
Announced in the open Court on 31st Day of May,2012.
(Neena Bansal Krishna) ASJ-01/PHC/New Delhi State v. Hans Raj @ Raj FIR No. 350/2004 PS Defence Colony. Page No. 14 of 14