Delhi District Court
State vs Umesh Kumar @ Kala S/O Ishwar Singh on 22 November, 2013
IN THE COURT OF SHRI SUSHIL ANUJ TYAGI,
METROPOLITAN MAGISTRATE: ROHINI COURTS, DELHI
FIR No. : 166/03
P.S. : Kanjhawala
Unique ID No. : 02401R0764982003
State
Vs.
Umesh Kumar @ Kala S/o Ishwar Singh
R/o Village Ghari Kunelal, PS Kharkhoda,
Dist. Sonepat, Haryana.
Date of institution of case :07.11.2003
Date of reserving the judgment :19.11.2013
Date of pronouncement of judgment :22.11.2013
JUDGMENT
1. S. No. of the Case: 177/2/03 2. Date of Commission of Offence: 09.08.2003 3. Date of institution of the case: 07.11.2003 4. Name of the complainant: SI Balbir Singh 5. Name of the accused: Umesh Kumar @ Kala 6. Offence complained or proved: 353/474 IPC & 27 Arms Act 7. Plea of Accused : "Not Guilty" 8. Final Order: Acquitted 9. Date of Final Order: 22.11.2013 FIR 166/03 Kanjhawala Page 1 of 11 BRIEF FACTS AND REASONS FOR DECISION OF THE CASE
1. Succinctly, the facts of the case as per prosecution are that on 09.08.2003 at 8.30 p.m. at main road, Village Jyonti, Delhi accused Umesh Kumar assaulted and used criminal force by firing from the pistol on the team of a police officials constituted by Balbir Singh to deter them in execution of their duty as such public servant and prevent them for exercising their duty. It is further alleged that accused had in a possession of the two RCs, of the vehicle no. DL-6CF-5577 which he fraudulently and dishonestly intended to use as genuine and also found in possession of one pistol and five live cartridges and accused also fired from it with intention to kill the police officials. The accused was arrested and upon completion of investigation challan was prepared u/s 186/353/307/474 IPC and 27 of Arms Act and filed in court for trial.
2. The copies of charge sheet and annexed documents were supplied to accused in due compliance of Section 207 Cr.P.C and the case was committed to the court of Sessions as Section 307 IPC was exclusively triable by the court of Sessions. Vide order dated 12.04.2004, Ld ASJ Sh N K Sharma observed that Section 307 IPC is not made out and the case was remanded back for trial by the Magisterial court.
3. Prima facie case having been made out, charge for offence U/s 353/474 IPC and 27 Arms Act was framed against the accused on 05.05.2007 to which he pleaded not guilty and claimed trial and the case was adjourned for recording of prosecution evidence.
4. In order to prove its case, prosecution has examined the following witnesses:-
PW-1 HC Rajender Parsad deposed that on 09.08.2003 he was posted as duty officer and he proved the FIR Ex. PW 1/A. PW-2 HC Ranbir Singh deposed that on 09.08.2003 IO had deposited with him FIR 166/03 Kanjhawala Page 2 of 11 sealed pullanda sealed with the seal of BS and form M 29. He deposited the same in malkhana and made entry in register no. 19 at serial no. 934/03. It is further alleged that on 29.09.2003 sealed pullanda sent to CFSL Hyderabad through Ct. Brahm Ram vide RC No. 67/21/03. Copy of same is Ex. PW 2/A. PW-3 H.Ct. Ved Prakash, PW-4 ASI Johar Singh , PW -5 SI Balbir Singh, PW 6 HC Kulvinder Kumar, PW 7 HC Surat Singh and PW 8 HC Birma Ram deposed that on 09.8.2003 they were on patrolling and were present at bus stand, Jonti. At about 8:15pm one secret informer met them and disclosed that one person was about to come from the side of Qutub Garh in a stolen car of golden colour and he might have illegal arms also. SI Balbir recorded this information vide memo Ex. PW 5/A. On this information, IO requested 4-5 persons to join the raiding party but none of them agreed and left the place without disclosing their names and addresses. Without wasting the time, IO put barricades at Y point at Jonti village and started vehicle checking. H.Ct. Ved Parkash, Ct. Brahma Nand and HC Johar Singh started checking the vehicles which were coming from the side of Kanjhawala and remaining team of SI Balbir Singh, Ct. Surat and Ct. Kulvinder started checking the vehicles coming from the side of Qutub Garh. At about 8:40 p.m. one golden car came from the side of Qutub Garh and SI Balbir alongwith other staff signaled the car to stop but the driver of the car tried to turn back and tried to fled away, but SI Balbir, Ct. Kulvinder and Ct. Surat jumped in front of the car and upon which accused opened the fire upon the police party. However, police personnels managed to save themselves. Accused tried to fire again but this time accused could not fire. Accused pushed the trigger again and again but could not fire. Meanwhile, Ct. Johar, H. Ct. Ved Parkash and Ct. Brahma Ram apprehended the accused and snatched the pistol from the possession of accused. When SI Balbir checked the pistol, it found to contain 5 live cartridges and the sixth empty cartridge was stuck in the barrel of the pistol. After that SI Balbir prepared the sketch Ex. PW 3/A of pistol and FIR 166/03 Kanjhawala Page 3 of 11 the cartridges. Upon measuring the pistol length of the pistol was found 19cm, length of the barrel was 14.3 cm and length of the butt was 9.5cm. All the cartridges were engraved with KF765. IO put the pistol alongwith the cartridges on a cloth, prepared pullanda and sealed the same with the seal of BS. After that IO prepared the seizure memo Ex. PW 3/B. The number plate displayed upon the car was HR 26 B 7257 and upon inquiry the actual number was revealed as DL 6C F 5577. Two registration certificates already Ex. P1 and Ex. P2 were also recovered from the car showing the same number DL 6C F 5577. IO also seized the aforesaid car vide memo already Ex. PW 3/C. IO also took the possession of the recovered registration certificates. IO prepared the rukka Ex. PW 5/B and got the FIR registered through Ct. Surat. After that second IO SI Hansraj reached at the spot and the accused alongwith recovery and prepared documents were handed over to him. Second IO prepared site plan Ex. PW 5/C at the instance of SI Balbir Singh. Thereafter second IO arrested the accused vide memo Ex. PW 3/D. Personal search of accused was also conducted vide memo already Ex. PW 3/E. In his personal search one mobile phone, one belt, Rs. 110/-, one diary and one chain were found. Disclosure statement of accused Ex. PW 4/A was also recorded. After that accused was taken to PS and case property was deposited in malkhana. IO recorded his statement. The case property i.e. two RCs are Ex. P-1 and P-2, pistol is Ex. PW P-3 and all six cartridges are collectively Ex. P-4.
PW-9 Sh. Devender Singh deposed that on 27.7.2003, there was occasion of Shiv Ratri. On that day, he alongwith his son Vikas Dabas aged about 12 years went to Raj Rajeshwari Mandir near Sector 6, Bahadurgarh in his Maruti Zen car No. DL 6CF 5577 of golden colour. He parked his car in front of the gate of the temple and his son remained in the car and he went inside the temple. His son did not come as he was wearing shoes and he wanted to listen the music in the car. There was a distance of about 200 meters between the gate and the pooja sthan. There was quite rush on that day.FIR 166/03 Kanjhawala Page 4 of 11
When he was about to start his pooja, his son came there crying/weeping and disclosed that when he was sitting in the car, suddenly two persons came and one of them sat on the driver seat and one sat on the rear seat and started the car and tried to move it away. His son also told him that he tried to remove the keys of the car but he could not do so and he jumped from the car after opening the gate to save himself and those persons fled away with the car. He tried to find out his car but of no avail. He gave a complaint in police post Sector 6, Bahadurgarh. After about 15 days he came to know that his aforesaid car has been recovered by police officials of PS Kanjhawala. He got released his car from PS Kanjhawala. It was having two forged number plates No. HR 26B 7257. He also came to know that two registration certificates, one in his name and another in the name of first owner Shri Y.K. Jain were also recovered. RCs are already Ex. P1 and P2. Photographs of his aforesaid car having forged number plates are already mark X1 and X2. It is further alleged that he had already sold his car to one Mr. Sharma and also disposed of forged number plates as the case of theft of his car in Haryana has been finally disposed of.
PW-10 Retired ACP M.D.Mehta deposed that on 05.11.2003 he made complaint u/sec. 195 Cr.P.C. Ex. PW 10/A against the Umesh Kumar @ Kala after perusal of all relevant record against him.
PW-11 Insp. Hans Raj deposed that on 10.08.2003 at about 12.50 a.m. the carbon copy of FIR already Ex. PW 1/A alongwith original rukka Ex. PW 5/B was handed over to him. After that he alongwith Ct. Suraj Singh reached at village Jyonti bus stop, where they met SI Balbir Singh alongwith other police staff. IO SI Balbir Singh handed over him eleven documents i.e. seizure memo etc. alongwith the case property sealed with the seal of BS, one maruti car having no. plate of HR-26B-7257. He prepared the site plan Ex. PW 5/C on the instance of SI Balbir Singh. He recorded statement of SI Balbir u/sec. 161 Cr.P.C. and he left the spot. He interrogated the accused and then arrested him FIR 166/03 Kanjhawala Page 5 of 11 vide arrest memo Ex. PW 3/B. His personal search was conducted vide memo Ex. PW 3/F. He also inspected his body vide memo Ex. PW 11/A. He recorded his disclosure statement of Ex. PW 4/A. He also recorded statement of remaining witnesses. Case property was deposited in malkhana and accused was sent to J/C. Concerned police station was informed in regard to the recovery of stolen vehicle. It is further alleged that on 20.09.2003 the case property was sent to FSL, Hyderabad vide RC No. 67/21/03 through Ct. Brahm. After obtaining the result, he also obtained complaint u/sec. 195 Cr.P.C. from ACP M.D. Mehta, already Ex. PW 10/A. After completion of investigation he submitted the charge sheet before the court. He also obtained sanction u/sec. 39 Arms Act in this case. Same is mark XX.
5. Thereafter the prosecution evidence was closed. The accused were examined u/s 313 Cr.P.C. on 18.11.2013 to which he pleaded his innocence and false implication. The accused persons do not wish to lead Defence evidence.
6. I have carefully perused the case record and have heard arguments advanced by ld APP for the state as well as by ld defence counsel.
7. The accused persons in the present case are charged on the facts that on 09.08.2003 at 8.30 p.m. at main road, Village Jyonti, Delhi accused assaulted and used criminal force by firing from the pistol of accused against the team of a police officials constituted by Balbir Singh in execution of their duty as such public servant and prevent them for exercising their duty. It is further alleged that accused had in a possession of the two RCs, of the vehicle no. DL-6CF-5577 which he fraudulently and dishonestly intended to use as genuine and also found in possession of one pistol and five live cartridges and accused also fired from it with intention to kill the police officials.
8. The relevant sections u/s 353/474 IPC and 27 of Arms Act are reproduced below for reference:
FIR 166/03 Kanjhawala Page 6 of 11Section 353. Assault or criminal force to deter public servant from discharge of his duty Whoever assaults or uses criminal force to any person being a public servant in the execution of his duty as such public servant, or with intent to prevent or deter that person from discharging his duty as such public servant, or in consequence of anything done or attempted to be done by such person in the lawful discharge of his duty as such public servant, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.
Section 474. Having possession of document described in Section 466 or 467, knowing it to be forged and intending to use it as genuine Whoever has in his possession any document or electronic record, knowing the same to be forged and intending that the same shall fraudulently or dishonestly be used as genuine, shall, if the document or electronic record is one of the description mentioned in Section 466 of this Code, be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine; and if the document is one of the description mentioned in Section 467, shall be punished with [ imprisonment for life], or with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
9. To prove the case against the accused the prosecution was obliged to prove the following ingredients:-
--That he assaulted or used criminal force to public servants to desist them from their duty as such public servants;
-That he was found in possession of forged Rcs of the impugned vehicle;
-That he was found in possession of pistol and five live cartridges and he fired at the FIR 166/03 Kanjhawala Page 7 of 11 police officials.
10. The prosecution examined as many as 11 witnesses to discharge their burden of proof. The main star witnesses out of the witnesses examined in court are PW-3 H.Ct. Ved Prakash, PW-4 ASI Johar Singh , PW -5 SI Balbir Singh, PW 6 HC Kulvinder Kumar, PW 7 HC Surat Singh , PW 8 HC Birma Ram and PW 9 Devender Singh. The prosecution case is totally based on the oral testimonies of the witnesses. All the witnesses examined by the prosecution for the alleged incident are police officials and no independent witness has been cited regardng the incidnet in the list of witnesses. No sincere efforts were made to join independent witness in the present case to lend credibility. The arrest and recovery from the accused is not by mere chance but was subsequent to some secret information. Police had ample time to join independent public witness for supporting the fact of arrest and recovery. It is stated that public witness were asked to join the investigation but none agreed. No written notice was given to the public witness. No names of the witness who refused to join the investigaiton were recorded. Mere stereotype deposition that witness did not join is not acceptable and makes the prosecution case weak.
11. PW 3 to PW8 who were the member of the raiding party unanimously deposed that accused came in a golden colour car and they signalled the car to stop but the driver tried to turn the vehicle and Ct Kulwinder and Ct Surat jumped in front of the car and accused open fire upon the police party but they managed to save themselves. Accused tried to fire again but could not fire as the bullet got stuck in the barrel of the gun. Section 307 IPC was observed as not made out by the Ld ASJ. No specific allegation has been deposed by the witnesses as in which direction the accused fired the gun. No one has deposed that the accused pointed the weapon towards whom and fired or whether he fired in the air. It is merely deposed that the accused opened fire at the police party.
FIR 166/03 Kanjhawala Page 8 of 1112. PW3 to PW8 were allegedly on patrolling duty around the time of incident. No arrival or departure entries has been proved on record to show the presence of the police officials on the spot. The police officials are under statutory duty to mark their arrrival and departure in the appropriate register as per the PPR rules.
13. Further, when a secret information was received by the patrolling party, no information was given to the police station and no DD entry was lodged in this regard. Also when the accused was apprehended, no information was sent to the PS. The complainant SI Balbir Singh who was also the member of the raiding party conducted the investigation himself. He sealed the impugned weapon and the car. He also prepared rukka and got the FIR registered. Subsequently, the second IO came who arrested the accused and prepared site plan. As complainant himself, SI Balbir should not have proceeded with the investigation of the case. The information could have been given to the PS and the matter could have been investigated by an independent IO. All these circumstances tend to show that investigation has not been conducted independently and complainant has done the investigation himself which is a disturbing feature of the present case.
14. PW9 Devender Singh who is the owner of the impugned vehicle deposed that on 27.07.2003, he parked his vehicle DL6CF 5577 in front of the gate of the temple and his son Vikas Dabas was present in the car. His son later told him that two persons came and took away the car. The witness Vikas Dabas has not been examined to identify the accused nor any TIP was got conducted to fix the identity of the accused and to connect the accused with the theft of the vehicle.
15. As far the allegation that the accused was found in possesion of two forged RC of the impugned vehicle is concerned, no recovery memo with respect to two RC is found on record and further, it is not proved as to how the RC are forged and how the FIR 166/03 Kanjhawala Page 9 of 11 ingredients of offence 474 IPC are satisfied.
16. The prosecution story is that the accused was found in possession of the illegal pistol and five catridges and he used the same against the police officials. No sanction u/s 39 Arms Act was taken for prosecuting the accused u/s 25 Arms Act for illegal possession of the weapon and cartridges. As far as the section 27 Arms Act is concerned, the prosecution has not proved the fact that the accused used the weapon against whom. The witnesses has merely deposed that the accused opened fire. It is not deposed whether accused fired by pointing towards somebody or he fired in the air. Moreover the complainant himself conducted the investigation and seized the weapon. It is the prosecution story that the accused tried to fire again but could not fire due to stuck of bullet in the barrel of the pistol. The IO removed the stuck bullet. It is not explained why the pistol and bullet was not sent to the CFSL in the same condition. Moreover, when the case property was produced it was without any seal and no explanation has been furnished for production of case property in such manner.
CONCLUSION
17. It is the basic canon of criminal jurisprudence that the burden to prove the case beyond reasonable doubt lies on the shoulder of the prosecution. The accused has a right to maintain silence in the trial. Every accused is to be presumed innocent until proved guilty. The burden is not just establishing pre-ponderence of probabilities but to establish the guilt of the accused beyond reasonable doubts. The prosecution is under bounden duty to prove the case by leading cogent, convincing and reliable evidence. The accused is entitled to any benefit of doubt in the prosecution version. The accused cannot be convicted on the basis of mere probabilities or presumptions. Suspicion howsoever grave cannot take place of proof. It is concluded that the prosecution has miserably failed to prove the case against the accused and therefore, the accused is entitled to be FIR 166/03 Kanjhawala Page 10 of 11 exonerated.
18. In the light of above discussion and observations, the accused Umesh Kumar @ Kala is hereby acquitted for the offences charged in the present case. Bail bond stands cancelled and surety is discharged. Documents, if any be returned after cancellation of endorsement on the same.
19.File after necessary compliance be consigned to record room.
Announced in open court ( SUSHIL ANUJ TYAGI )
22nd day of November, 2013 Metropolitan Magistrate,
Rohini Courts: Delhi
FIR 166/03 Kanjhawala Page 11 of 11