Delhi District Court
State vs 1. Anoop Singh on 1 February, 2011
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In the Court of Ms. Kaveri Baweja
Additional Sessions JudgeFTC (Central)
Tis Hazari Courts: Delhi.
Sessions Case No. : 134/09
State versus 1. Anoop Singh
S/o Sh. Dalel Singh
R/o Vill. Nanak Heri,
Najafgarh, Delhi.
2. Yogesh Sharma
S/o Sh. Satbir Sharma
R/o VPO Kangan Heri,
Najafgarh.
3. Shailender Kadiyan
S/o Sh. Ran Singh
R/o H.No.308, Housing Board Colony,
Rohtak.
Case arising out of:
FIR No. : 110/04
Police Station : Special Cell, Lodhi Colony
Under Section : 307/353/186/34 IPC
Judgment reserved on : 06.01.2011
Judgment pronounced on : 01.02.2011
SC No.134/09 State vs. Anoop Singh & Ors.
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JUDGMENT
1. Stating briefly, it is the case of the prosecution that on 28.08.04, SI Satender Vashisht of PS Special Cell received a secret information that at about 10 AM, four robbers namely Anoop, Yogesh @ Leelu, Shailender and Deepu would come at 12/12.30 PM from the side of Kapashera and would proceed towards Najafgarh through Jhatikra Mor in a stolen Maruti Car bearing No. HR06 5338. It was also informed by the secret informer that the said persons would be in possession of unlawful arms and if raided, they can be apprehended.
2. The case was registered on the aforesaid information and SI Satender Vashisht also informed about the same to Inspector Jaibir Singh and the ACP concerned. Upon directions received from senior officers, SI Satender Vashisht constituted a raiding party consisting of himself, SI Attar Singh, SI Azad Singh, SI Dinesh, ASI Rakesh, ASI Nemi Chand, Ct. Ravish, Ct. Vinod and Ct. Jasbir. The raiding party along with the secret informer left in an official vehicle i.e Toyota Qualis No.DL1C H 9803 along with driver HC Rajpal Singh to the spot. Ct. Ravish was stated to be in uniform and was in possession of the official arm AK47 and SI Satender Vashisht and SI Attar Singh were carrying service pistols.
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3. On reaching Peeragarhi Chowk, 45 public persons were requested to join the proceedings but they left expressing their inability. As per the chargesheet, SI Satender Vashisht again requested some public persons near Najafgarh Gate to join raiding party but they also refused to join proceedings by expressing their inability.
4. SI Satender Vashisht along with the raiding party reached near Jhatikra Mor at about 11.45 AM where again a request was made to the public persons to join raiding party but none agreed. Inspector Jaibir Singh briefed the raiding party about the secret information and a Nakabandi was done at the TPoint of Jhatikra Mor. Barricades were also placed on the NajafgarhKapashera road and SI Satender Vashisht and Ct. Ravish took their positions near the barricades and the official vehicle was parked at a little distance from the barricades facing towards Najafgarh side near the road. Inspector Jaibir Singh and Ct. Vinod took the position near the official vehicle and the other staff members also took their respective positions and started waiting.
5. At about 12.15 PM, one Martui Zen Car No.HR06 5338 came from Kapashera side which was stopped by SI Satender Vashisht and Ct. Ravish on the indication from the secret informer and the barricades were closed. As soon as the car was stopped, accused Shailender Kadiyan who was sitting on the driving seat shouted that they had been SC No.134/09 State vs. Anoop Singh & Ors.
:4:surrounded by the police party and he asked his other accomplices to start firing. Upon this, the person namely Anoop Singh, sitting next to driver, suddenly opened the door of the car and picked out one pistol from the left dub of his wearing pant and fired upon Ct. Ravish. Ct. Ravish managed to escape and SI Satender Vashisht fired in the air asking him to surrender. Accused Anoop Singh was overpowered and his pistol was snatched from his hand by Ct. Ravish. In the meanwhile, accused Yogesh @ Leelu who was sitting on the rear seat, took out a pistol, aimed it towards police party, but before firing, he was over powered by SI Attar Singh and ASI Rakesh snatched the pistol from his hand. In the meanwhile, accused Devanand who was also sitting at the rear seat was also overpowered by SI Azad Singh and Ct. Vinod and on his search, four live cartridges of .32 bore were recovered from the left pocket of his wearing pant. Accused Shailender Kadiyan was also overpowered by SI Dinesh and ASI Nemi Chand on the spot.
6. It is also the case of the Prosecution that pursuant to the supplementary disclosure statement Ex.PW16/A, made by accused Anoop Singh, he got recovered a motorcycle bearing No.HR06 O 8128 make Hero Honda which was seized vide seizure memo Ex.PW16/F and the possession of the same whereof he was unable to account for.
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7. Further, it is the case of the Prosecution that accused Yogesh also made a supplementary disclosure statement Ex.PW16/B pursuant to which and upon his pointing out, one motorcycle bearing registration No. DL4S 2781 make LML Freedom and one mobile phone make Nokia were recovered from Village Nanakheri, Police Station Najafgarh which were seized vide seizure memo Ex.PW16/D & Ex.PW16/E respectively.
8. After completion of investigation, the chargesheet was filed and the case was committed to Sessions after due compliance of S.207 CrPC. On the basis of material on record, Charge for offence punishable U/s 186/353/307/34 IPC was framed against accused Anoop Singh, Yogesh Sharma @ Leelu and Shailender Kadiyan vide order dated 23.12.04.
9. Besides this, vide the same order, the accused Anoop Singh was also charged for offence punishable U/s 103 D.P. Act as he was allegedly found in possession of stolen motorcycle No. HR26 O 8128 which he could not account for. Accused Anoop Singh was also charged for offence punishable U/s 25 & 27 Arms Act as he was allegedly found in possession of one Italian pistol make Webley Scot 7.65 mm, loaded with three live cartridges and he allegedly used the same against Ct. Ravish.
SC No.134/09 State vs. Anoop Singh & Ors.
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10. Vide the same order, the accused Yogesh was also charged for offence punishable U/s 103 D.P. Act as he was found in possession of a motorcycle bearing registration No. DL4S 2781, the possession of which he could not account for. It is pertinent to mention that during the course of proceedings, vide order dated 25.03.10, an additional charge was also framed for offence punishable U/s 25 Arms Act against accused Yogesh for having been found in possession of countrymade pistol of .315 bore and one live cartridge without necessary license.
11. The trial against accused Devanand @ Deepu was led separately as he was juvenile.
12. Prosecution has examined 14 witnesses on record and the witnesses namely Inspector Jaibir Singh, SI Dinesh and SI Azad Singh were given up by the Prosecution as being repetitive in nature.
13. As per the case of the prosecution, SI Satender Vashisht had received the secret information regarding the accused persons. SI Satender Vashisht has been examined as PW14. He deposed that on 28.08.04, he received a secret information that four robbers namely Shailender, Yogesh, Anoop and Devanand would come in a Maruti Zen No.HR06 5338 from the side of Kapashera to the side of Najafgarh. He made a DD Entry on the basis of said information and passed on the SC No.134/09 State vs. Anoop Singh & Ors.
:7:same to Inspector Jaibir Singh who further passed on the information to ACP who directed to take legal action. PW14 further deposed that thereafter Inspector Jaibir Singh constituted a raiding party comprising of himself, SI Satender Vashisht, SI Attar Singh, SI Dinesh, Ct. Vinod, SI Azad Singh, ASI Nimmi Chand, Ct. Ravish etc. He deposed that he left with the raiding party in the government vehicle to the spot and stated that Ct. Ravish was wearing uniform and was having AK 47 rifle. He and SI Attar Singh were also having their government pistols.
14. PW14 further testified that on reaching Peeragarhi Chowk, four public persons were requested to join the raiding party but none agreed. He again requested some public persons to join the raiding party but they refused and left without telling their names and addresses. He further stated that at 11.45 AM, they reached at Jhatikra Mor and put barricades on NajafgarhKapashera Road. Their government vehicle was parked at a distance from barricades and Inspector Jaibir Singh briefed the raiding party and deployed the staff near the barricades on both sides of the road.
15. PW14 further deposed that at about 12.15 PM, one white Maruti Zen Car bearing No.HR06 5338 came from Kapashera side and was signalled to stop at the instance of the secret informer. The said car was then stopped and one boy who was sitting by the side of driver, SC No.134/09 State vs. Anoop Singh & Ors.
:8:came out of the car and took out a pistol from the left dub of his wearing pant and fired at the police party whose name later on revealed as Anoop. PW14 correctly identified the accused in Court. The witness deposed that at that time, he fired in air for warning them to surrender. The witness with the help of Ct. Ravish apprehended accused Anoop and snatched the pistol from his right hand. In the meantime, SI Attar Singh apprehended another boy who was sitting at back seat of the car and whose name was revealed as Yogesh who also aimed his country made pistol at police party. SI Attar Singh also snatched the said pistol from accused Yogesh. SI Azad Singh also apprehended another boy whose name was revealed as Devanand (since juvenile) and the driver of the car whose name was revealed as Shailender was also apprehended by SI Dinesh at the spot. PW14 has correctly identified all the three accused persons in the Court.
16. PW14 further testified that three live cartridges were recovered from the pistol, recovered from the possession of accused Anoop and one empty shell was recovered from the road. He prepared the sketch of the pistol, empty shell and three live cartridges which is Ex.PW8/A and he also prepared the sketch of the country made pistol and one live cartridge which is Ex.PW8/B. He further stated that he prepared three separate pulandas and sealed the same with the seal of 'SV'. He also filled up FSL form and seized the case property vide SC No.134/09 State vs. Anoop Singh & Ors.
:9:seizure memo Ex.PW8/D. The Maruti Zen Car which was found to be stolen was also seized vide seizure memo Ex.PW8/C. Thereafter PW14 prepared a rukka Ex.PW3/A and sent it through ASI Nimmi Chand for registration of FIR and after registration of FIR, further investigations were handed over to SI Sukhbir Malik who prepared site plan Ex.PW14/A at the instance of PW14 and arrested the above said three accused persons vide arrest memo Ex.PW14/B, Ex.PW14/C & Ex.PW14/D and conducted their personal search vide memos Ex.PW14/E, Ex.PW14/F & Ex.PW14/G. He also recorded the disclosure statements of the accused persons vide Ex.PW14/H, Ex.PW14/I and Ex.PW14/J. PW14 also identified the cartridges and the pistols, recovered from the possession of accused Yogesh and Anoop Singh.
17. The Prosecution also examined Constable Ravish as PW8 who was also a member of raiding party and as per the Prosecution case upon whom, accused Anoop Singh had fired from his pistol. PW8 also deposed that the raiding party reached the spot after receipt of secret information by SI Satender Vashisht. He deposed that the above mentioned Maruti Car came from the side of Kapashera at 12.15 PM and the person who was sitting at the driver seat namely accused Shailender, shouted "Police Party Ne Gher Liya Hain, Fire Karo Aur Bhago". The person namely Anoop who was sitting by the side of driver, came out of the car and fired on PW8. The witness deposed that he managed to save SC No.134/09 State vs. Anoop Singh & Ors.
:10:himself and overpowered accused Anoop with the help of SI Satender Vashisht. The other accused persons were apprehended by the other members of raiding party and recovered the respective arms in their possession. PW8 also deposed about the sketch of pistols and cartridges, seizure of the case property, arrest and personal search memos of the accused persons and also disclosure statements made by the accused persons. The witness also correctly identified the case property and the accused persons before the Court.
18. The other members of the raiding party examined by the prosecution are PW5 Constable Vinod, PW6 ASI Rakesh and PW7 ASI Nemi Chand.
19. PW5 deposed that when the raiding party organized under the leadership of Inspector Jaiveer Singh, consisting of himself, SI Satender Vashisht, SI Attar Singh, SI Dinesh Kumar, ASI Nemi Chand, SI Azad Singh, Ct. Ravish and Ct. Jasbir along with driver Rajpal reached at Jhatikra Mod, the raiding party took its position. He also deposed about the request, made by SI Satender Vashisht to the public persons to join raiding party and their refusal. He further deposed that Ct. Ramesh was in uniform and was armed with AK47 rifle and he took his position along with SI Satender near the barricades and that he along with Inspector Jaiveer took position a little ahead of barricades. He deposed SC No.134/09 State vs. Anoop Singh & Ors.
:11:that at about 12.15 PM, one Maruti Zen Car bearing No.HR06 5338 came near the barricades and the driver of the car identified as accused Shailender shouted on seeing the police and started running while firing. He further clarified that accused Shailender shouted to fire at police party and he himself did not fire. The other person, later identified as accused Anoop Singh fired at Ct. Ravish and his pistol was snatched by SI Satender. Accused Yogesh was also apprehended by the police party. All the arms recovered from their possession were taken into police possession by SI Satender. He also deposed about the country made pistol which was recovered from accused Yogesh and an improvised pistol, recovered from accused Anoop. He correctly identified the accused persons and the case property including the cartridges which were recovered from the spot.
20. ASI Rakesh Kumar who was also a member of the raiding party was examined by the Prosecution as PW6. He also deposed that at about 12.15 PM, one Maruti Zen Car bearing No. HR06 5338 came from the side of Kapashera and reached near the barricades. The person sitting on the driver seat, later identified as accused Shailender, shouted 'Police party ne gher liya hai, goli chalao'. The person sitting by the side of driver, later identified as Anoop, took out the pistol and fired on Ct. Ravish who saved himself and overpowered accused Anoop. Accused Yogesh also took out a Katta and tried to fire on the police party but he SC No.134/09 State vs. Anoop Singh & Ors.
:12:was overpowered by SI Attar Singh and snatched the Katta from his hand. He correctly identified the case property and the accused persons in the Court.
21. ASI Nemi Chand was also examined by the Prosecution as PW7 who was also the member of the raiding party. He also corroborated the testimony of the above said witnesses.
22. Inspector Attar Singh who also accompanied the raiding party on 28.08.04 was examined by the Prosecution as PW12 and in his deposition, he corroborated the testimony of the other PWs/ members of the raiding party, examined in the Court.
23. SI Sukhbir Malik to whom the investigation was handed over was examined by the Prosecution as PW16. He deposed that on 28.08.04, on receipt of DD No.14 which is Mark PW16/A, he reached at Jhatikra Mor near Najafgarh and met the police party, led by Inspector Jaibir Singh and SI Satender Vashisht. Four accused persons were apprehended by the police party. He identified the three accused persons correctly in the Court. He further deposed that SI Satender Vashisht handed over the documents, prepared by him, three pulandas, sealed with the seal of 'SV' and one Maruti Zen Car bearing No. HR06 5338 which was seized vide seizure memo Ex.PW8/C. PW16 further deposed SC No.134/09 State vs. Anoop Singh & Ors.
:13:that he interrogated the accused persons and recorded their disclosure statements Ex.PW14/H, Ex.PW14/I and Ex.PW14/J. He also prepared the site plan Ex.PW14/A and arrested the accused persons vide memos Ex.PW14/B, Ex.PW14/C & Ex.PW14/D and conducted their personal search vide memos Ex.PW14/E, Ex.PW14/F and Ex.PW14/G.
24. PW16 further deposed that he again interrogated the accused persons and recorded their supplementary disclosure statements vide Ex.PW16/A and Ex.PW16/B. He deposed that pursuant to the disclosure statement of accused Shailender, he led the police party to his farm house near Village Beri, District Rohtak, Haryana and got recovered one robbed Tata Qualis car bearing No.DLIV B 1672 which was seized vide seizure memo Ex.PW16/C. Accused Yogesh also got recovered one mobile phone make Nokia from a house in Village Kanganheri which was seized vide seizure memo Ex.PW16/D and one motorcycle bearing No.DL4S K 2781 which was seized vide seizure memo Ex.PW16/E. Accused Anoop also got recovered one motorcycle bearing No.HR26 O 8128 which was seized vide seizure memo Ex.PW16/F.
25. PW16 further deposed that the case property was sent to FSL through PW13 ASI Ramdhari and the result was collected which is Ex.PW4/A. He further deposed that during investigation, he obtained the sanction for the prosecution of the accused persons U/s 39 Arms Act SC No.134/09 State vs. Anoop Singh & Ors.
:14:from DCP Ashok Chand (PW15) and the said sanctions are Ex.PW1/A and Ex.PW1/B. He also placed on record the complaint U/s 195 CrPC made by DCP Ashok Chand which is Ex.PW15/A and filed the charge sheet after completion of further investigation.
26. The FSL Report with respect to the arms and cartridges, recovered from the possession of the above said three accused persons was proved by PW4 Mr. K.C. Varshney, Senior Scientific Officer (Ballistic), FSL and the report is Ex.PW4/A.
27. Besides these witnesses, the prosecution has also examined Duty Officer PW3 ASI Avdhesh who deposed that ASI Nemi Chand produced the rukka Ex.PW3/A, sent by SI Satender Vashisht, on the basis of which he registered the FIR of the present case and proved the same as Ex.PW3/B. PW2 ASI Paramjit Singh was the MHC(M) who deposited the case property and handed over the same to the concerned official for being taken to FSL has also been examined on record.
28. The statement of the accused persons was recorded U/s 313 CrPC on 04.12.10 wherein all the accused persons denied the incriminating evidence against them and pleaded innocence, stating that they have been falsely implicated in this case. No evidence has been led in defence by any of the accused persons.
SC No.134/09 State vs. Anoop Singh & Ors.
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29. It was argued by Learned Counsel for accused Shailender Kadiyan that in view of the judgments of the Hon'ble Supreme Court reported as Bhugdomal Ganga Ram and Others vs. State of Gujrat 1984 SCC (Cr) 67 and Kanhai Mishra vs. State of Bihar 2001 SCC (Cr) 537, since the secret informer who allegedly informed about the information to SI Satender Vashisht has not been examined on record, the very basis of the prosecution case is demolished.
30. On the other hand, Learned APP submitted that the judgments cited by Learned Defence Counsel to this effect are not applicable to the facts of the present cae. He also submits that the factum of receipt of secret information has been duly proved on record by the prosecution witnesses and it is not in dispute that the said secret information was reduced into writing and was also given to the senior officers by SI Satender Vashisht upon which the raiding party was constituted. He further submitted that the nonexamination of the secret informer cannot be said to be fatal to the case of the prosecution inasmuch as the prosecution witnesses have duly proved the allegations against the accused persons.
31. I have gone through the submissions made and also gone through the judgments, cited by defence. However, on going through the said judgments, the same cannot be said to be applicable to the facts of SC No.134/09 State vs. Anoop Singh & Ors.
:16:the present case since his case is not based upon circumstantial evidence. There is cogent evidence on record by way of testimony of PW5, PW6, PW7, PW8, PW12, PW14 and PW16 which establishes the presence of the accused persons at the spot i.e at Jhatikra Mor. The witnesses also deposed that the accused persons came in Maruti Zen Car from the side of Kapashera on 28.08.04 and that accused Anoop Singh fired from his pistol upon Constable Ravish after accused Shailender shouted and informed them about the presence of the police party.
32. It was further argued by the Learned Counsel for accused Shailender that even if it is assumed for the sake of arguments that the accused Anoop Singh had fired upon Constable Ravish but on going through the record, it would be seen that accused Shailender had asked the other persons in the Car to fire only with an intention to escape from the spot and not to cause hurt to the police party. In support of this argument, Learned Defence Counsel relied upon the judgments reported as Durga Bai vs. State of Punjab JT 2004 (6) SC 351 and Ram Dass vs. State of Maharashtra 1977 SCC (Cr) 254. He submitted that the testimony of the prosecution witnesses that accused Shailender shouted "Police Party Ne Gher Liya Hain, Fire Karo Aur Bhago" which only implies that their only intention to escape from the spot and not to cause any injury to the members of the police party. He submits that in these SC No.134/09 State vs. Anoop Singh & Ors.
:17:circumstances, the offence punishable U/s 307 IPC cannot be said to be made out against the accused persons.
33. He further argued that accused Shailender along with other accused persons never nursed any common intention and at the most the accused Shailender can be said to have abetted the commission of offence punishable U/s 307 IPC by accused Anoop. He further argued that since no charge was framed for offence of abetment punishable U/s 109 IPC, the accused Shailender cannot be convicted for the said offence. In support of the said argument, he relied upon judgments reported as Madan Raj Bhandari vs. State of Rajasthan AIR 1970 SC 436, Sohan Lal vs. State of Punjab 2004 SCC (Cr) 226, Joseph Kurian vs. State of Kerala 1995 SCC (Cr) 20 and Wakil Yadav vs. State of Bihar 2001 SCC (Cr) 1499.
34. It was also pointed out by Learned Defence Counsel that PW14 SI Satender Vashisht failed to depose in his examinationinchief that accused Shailender had called out the accused persons to open fire. He submits that in the light of aforesaid omission in the testimony of PW14, the allegation against accused Shailender does not stand proved.
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35. Learned APP countered the argument of Learned Defence Counsel, stating that prosecution witnesses PW5 Constable Vinod, PW6 ASI Rakesh, PW7 ASI Nemi Chand, PW8 Constable Ravish and PW12 SI Attar Singh have all deposed that accused Anoop Singh fired at Constable Ravish after accused Shailender Kadiyan shouted "Police Party Ne Gher Liya Hain, Fire Karo Aur Bhago". He submits that the testimony of the aforesaid witnesses is consistent to this effect and remained unimpeached despite crossexamination.
36. He further submitted that if the argument of Learned Defence Counsel that the intention of the accused persons was merely to escape is to be accepted then it would amount to an admission on the part of the accused persons regarding their presence at the spot, possession of the fire arm by accused Anoop Singh and the fact that he fired towards Constable Ravish. Learned APP submitted that in these circumstances, the only question which remains to be determined is that whether accused Anoop Singh had fired at Constable Ravish with such knowledge or intention and under such circumstances that if by that act he would have caused the death of Constable Ravish and he would been guilty of murder of Constable Ravish.
37. From the statements of prosecution witnesses, I find that all of them consistently deposed that it is upon the shouting by accused SC No.134/09 State vs. Anoop Singh & Ors.
:19:Shailender that they have been surrounded by the police party and asked other accused persons to open fire, that accused Anoop Singh fired from his pistol at Constable Ravish. Since, the prosecution witnesses deposed that accused Anoop Singh pointed his pistol towards the police party, it cannot be said that the intention of the accused Anoop Singh was merely to escape. In my view, if the intention of the accused was merely to escape from the spot after seeing the police party, he would have fired in the air instead of aiming it towards the police party. The fact that the pistol was aimed by accused Anoop towards Constable Ravish establishes that his intention was not merely to escape.
38. However, as regards accused Shailender Kadiyan, it is borne out from the deposition of PW6 ASI Rakesh & PW7 ASI Nemi Chand that accused Shailender on seeing the police party shouted "Police Party Ne Gher Liya Hain, Goli Chalao". On the other hand, PW8 HC Ravish and PW12 SI Attar Singh deposed that accused Shailender shouted "Police Party Ne Gher Liya Hain, Fire Karo Aur Bhago".
39. It has been argued by Ld. Defence Counsel for accused Shailender that he did not nurture any intention to commit the offence punishable U/s 307 IPC and his only intention was to escape and it is for this reason, he asked the other accused persons to fire so as to facilitate their escape.
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40. Undoubtedly, the intention of accused Shailender can be gathered only from the words which were used by him and there is no evidence to this effect on record. As stated above, as per PW6 & PW7 deposed that accused Shailender shouted "Police Party Ne Gher Liya Hain, Goli Chalao", whereas as per PW8 & PW12, accused Shailender shouted "Police Party Ne Gher Liya Hain, Fire Karo Aur Bhago". As per the deposition of PW6 & PW7, it cannot be said that the intention of accused Shailender was merely to escape since he asked the other accused persons to fire as they had been surrounded by the police party, whereas in the light of testimony of PW8 & PW12, it can be said that his intention to escape by firing as they had been surrounded by the police party. It cannot be disputed that there has to be some variance in the testimony of prosecution witnesses. However, the benefit of such discrepancies must, in all circumstances, go to the accused.
41. In other words, considering the deposition of PW6, PW7, PW8 & PW12, I find that the accused Shailender merely shouted that they had been surrounded by the police party and asked the other accused persons to escape after firing. This clearly reveals that the intention of the accused Shailender was merely to escape and he asked the other accused persons to fire only with an intention to facilitate their escape. No intention can be imputed on the part of the accused Shailender to say that he had the intention to cause any hurt or to assault any member of SC No.134/09 State vs. Anoop Singh & Ors.
:21:the police party. Admittedly, no fire arm has been recovered from the possession of accused Shailender.
42. Learned Defence Counsel for accused Anoop Singh submitted that in absence of any independent public witness, no reliance can be placed upon the testimony of prosecution witnesses who are all police officials and the accused persons are entitled to be acquitted for this reason. He also pointed out that as per the application for PC Remand of accused Anoop Ex.PW16/DA, accused Anoop was found in possession of one Chinese pistol. However, as per chargesheet, the pistol recovered from the possession of accused Anoop was made in Italy. He also submitted that the pistol was not produced before the concerned court in compliance of provisions of S.52 CrPC and the case of the prosecution is false.
43. I have considered the aforesaid submissions and gone through the record carefully. Although as per the PC Remand application Ex.PW16/DA, the pistol recovered from the possession of accused Anoop was stated to be Chinese. However, when the prosecution witnesses when examined in the Court, identified the pistol recovered from the possession of accused Anoop as one to be 'Made in Italy'. The same was identified by the recovery witnesses in the Court and no SC No.134/09 State vs. Anoop Singh & Ors.
:22:suggestion was given to the other witnesses regarding the make of the pistol.
44. I also do not find any force in this argument of Learned Defence Counsel, inasmuch as the use of word 'Made in Italy' on the pistol cannot be said to imply that the pistol cannot be of Chinese make. Moreover, no question was put to any of the recovery witnesses by defence regarding the make of the pistol and thus, not much importance can be given to the fact that the pistol was stated to be of Chinese make in the application for PC Remand Ex.PW16/DA. The recovery of the pistol of 7.65 mm from the possession of accused Anoop has been duly proved on record by the testimonies of PW5, PW6, PW7, PW8, PW12 & PW14.
45. The testimony of PW4, Mr. K.C. Varshney, the FSL Expert was unrebutted and he also deposed about examining of one improvised pistol of 7.65 mm bore along with cartridges which were sent to him for examination. However, the nonproduction of the pistol before the Court at the time of first remand of the accused U/s 52 Cr.P.C cannot be said to be fatal to the case of the prosecution. It was also submitted by Learned APP that as per S.52 Cr.P.C, the weapon recovered from the possession of the accused may be produced to either before the Court or before the Officer before whom the officer or person making the arrest is required SC No.134/09 State vs. Anoop Singh & Ors.
:23:by this Code to produce the person arrested. He submitted that in view of the matter, it cannot be said that the production of the weapon is mandatory before the Court.
46. Inasmuch as the nonexamination of public witnesses is concerned, I am of the view that the nonjoining of public persons has been satisfactorily explained by the prosecution witnesses namely PW6, PW7, PW8, PW12 & PW14 who in their examinationinchief itself have consistently and categorically deposed that efforts were made to join public persons in the raiding party but none of them agreed and left the spot without telling their names and addresses. The testimony of prosecution witnesses is consistent who have deposed that on 28.08.04 near TPoint, Jhatikra Mor, the accused persons in furtherance of their common intention assaulted the police officials when they were discharging their public functions and obstructed them in discharge of their duties. It has been established on record from the testimony of the Prosecution witnesses that accused Anoop Singh fired a shot by aiming his pistol at Constable Ravish with such intention and knowledge and under such circumstances that if by that act he would have caused the death of Constable Ravish and he would been guilty of murder of Constable Ravish.
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47. From the testimony of the witnesses on record, it has also been established that the accused Anoop Singh was found in possession of one pistol make Webley Scot 7.65 mm which was loaded with three live cartridges in contravention of the provisions of the Arms Act and that he used the said fire arm by pointing the same towards Constable Ravish and fired a shot at him. Thus, the Prosecution has been able to prove the charge for offence punishable U/s 25 & S.27 Arms Act against accused Anoop Singh.
48. Consequently, in view of the aforesaid discussion and the material on record, I find that the Prosecution has been able to establish the charges against accused Anoop Singh for offence punishable U/s 186/353/307 IPC.
49. Accordingly, accused Anoop is held guilty and convicted for offence punishable U/s 186/353/307 IPC and he is also held guilty and convicted for offence punishable U/s 25 Arms Act. It has also been proved on record that accused Anoop Singh was found in possession of a motorcycle bearing No.HR26 O 8128, the possession of which he could not account for and thus, the charge for offence punishable U/s 103 D.P. Act is also duly proved on record against accused Anoop Singh and he is convicted for the same.
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50. However, insofar as the accused Shailender is concerned, as discussed above, I find that there is no evidence on record to establish that he ever nurtured any intention to cause death of Ct. Ravish or to cause any harm. There is no evidence regarding any common intention of accused Shailender with accused Anoop Singh for committing offence punishable U/s 307 IPC. Similarly, I find that accused Shailender did not voluntarily obstruct or deter the police officers in discharge of their public functions as his intention was merely to facilitate their escape.
51. On the basis of evidence on record and in the light of the above discussion, accused Shailender is acquitted from the charge as framed against him.
52. Further as regards accused Yogesh, it has been established on record through the testimony of PW6, PW7, PW8 & PW12 that he took out a Katta and tried to fire on the police party but was overpowered by SI Attar Singh. Consequently, the Prosecution, in my opinion, has been able to prove its case against accused Yogesh that he is guilty of committing offence punishable U/s 25 Arms Act for having been found in possession of a Katta without any licence. Moreover, by pointing his gun to police party, he voluntarily and in furtherance of his common intention with accused Anoop obstructed the police officers with an SC No.134/09 State vs. Anoop Singh & Ors.
:26:intention to prevent and to deter the police officers in discharge of their public functions. Thus, accused Yogesh is held guilty and convicted for offence punishable U/s 186 IPC and U/s 25 Arms Act. However, in absence of any evidence of assault or use of criminal force by accused Yogesh, Charge for offence punishable U/s 353 IPC does not stand proved.
53. Further, on the basis of evidence on record, particularly the testimony of PW16 Constable Ravish, the Prosecution has also been able to prove that accused Yogesh was found in possession of one motorcycle bearing No.DL4S K 2781 and he also could not account for the possession of the same. Thus, the charge for offence punishable U/s 103 D.P. Act also stands proved on record against accused Yogesh and he is convicted for the same.
54. In view of the aforesaid discussion and evidence on record, accused Shailender Kadyan is acquitted. Accused Anoop is convicted for offence punishable U/s 307/186/353/34 IPC, in addition to offence punishable U/s 25 Arms Act and U/s 103 D.P. Act. Accused Yogesh is also hereby convicted for offence punishable U/s 186/34 IPC, in addition to offence punishable U/s 25 Arms Act and U/s 103 D.P. Act.
SC No.134/09 State vs. Anoop Singh & Ors.
:27:Let accused Anoop and Yogesh be heard on the point of sentence.
Announced in the Open Court On 01.02.11. (Kaveri Baweja) Additional Sessions JudgeFTC (Central) Tis Hazari Courts: Delhi.
SC No.134/09 State vs. Anoop Singh & Ors.
:28: FIR No. 110/04PS : Special Cell SC No. : 134/09 01.02.11.
2:45 PM Present : Sh. Rakesh Mehta, Learned APP for State.
Accused Anoop Singh and Yogesh on bail with Counsel Sh. Dinesh Mudgil.
Accused Shailender Kadyan produced from Ghazipur Jail. Vide judgment announced of even date on separate sheets, accused Shailender Kadyan is acquitted. Accused Anoop is convicted for offence punishable U/s 307/186/353/34 IPC, in addition to offence punishable U/s 25 Arms Act and U/s 103 D.P. Act. Accused Yogesh is also hereby convicted for offence punishable U/s 186/34 IPC, in addition to offence punishable U/s 25 Arms Act and U/s 103 D.P. Act.
Let accused Anoop and Yogesh be heard on the point of sentence.
Put up on 02.02.11.
(Kaveri Baweja) Additional Sessions JudgeFTC (Central) Tis Hazari Courts: Delhi.
SC No.134/09 State vs. Anoop Singh & Ors.
:29:In the Court of Ms. Kaveri Baweja Additional Sessions JudgeFTC (Central) Tis Hazari Courts: Delhi.
Sessions Case No. : 134/09 State versus 1. Anoop Singh S/o Sh. Dalel Singh R/o Vill. Nanak Heri, Najafgarh, Delhi.
2. Yogesh Sharma S/o Sh. Satbir Sharma R/o VPO Kangan Heri, Najafgarh.
3. Shailender Kadiyan S/o Sh. Ran Singh R/o H.No.308, Housing Board Colony, Rohtak.
(Acquitted vide Judgment dated 02.02.11) Case arising out of:
FIR No. : 110/04
Police Station : Special Cell, Lodhi Colony Under Section : 307/353/186/34 IPC Judgment pronounced on : 01.02.2011 SC No.134/09 State vs. Anoop Singh & Ors. :30: Order On Sentence 1. Heard on the point of sentence.
2. Accused Anoop was convicted vide Judgment dated 01.02.11 for offence punishable U/s 307/186/353/34 IPC, in addition to offence punishable U/s 25 Arms Act and U/s 103 D.P. Act. Accused Yogesh was convicted vide the same Judgment for offence punishable U/s 186/34 IPC, in addition to offence punishable U/s 25 Arms Act.
3. Ld. Counsel for both the convicts submits that they are not previous convicts. They are the sole bread earner of their family and have minor children to support. A prayer for taking lenient view is made.
4. On the other hand, Ld. APP submits that considering the nature of offences, committed by both the convicts, they do not deserve any leniency.
5. Having considered the submissions made and taken into account the mitigating and aggravating circumstances, convict Anoop is sentenced for offence punishable U/s 307 IPC to Rigorous Imprisonment for three years, in addition to payment of fine of Rs.3,000/, in default whereof he shall undergo SI for six months. He is sentenced for offence punishable U/s 186 SC No.134/09 State vs. Anoop Singh & Ors.
:31:IPC to Imprisonment for three months, in addition to payment of fine of Rs.1,000/, in default whereof he shall undergo SI for one month. He is sentenced for offence punishable U/s 353 IPC to Rigorous Imprisonment for one year, in addition to payment of fine of Rs.2,000/, in default whereof he shall undergo SI for two months. He is also sentenced for offence punishable U/s 25 Arms Act to Imprisonment for six months and for offence punishable U/s 103 D.P. Act to Imprisonment for three months. All the sentences shall run concurrently. Benefit of S.428 CrPC be also given to convict Anoop.
6. Convict Yogesh is sentenced for offence punishable U/s 186 IPC to Imprisonment for three months, in addition to payment of fine of Rs. 1,000/, in default whereof he shall undergo SI for one month. He is sentenced for offence punishable U/s 25 Arms Act to Rigorous Imprisonment for six months and for offence punishable U/s 103 D.P. Act to Imprisonment for three months. All the sentences shall run concurrently. Benefit of S.428 CrPC be also given to convict Yogesh.
Copies be given free of cost to both the convicts. File be consigned to Record Room.
Announced in the Open Court On 02.02.11. (Kaveri Baweja) Additional Sessions JudgeFTC (Central) Tis Hazari Courts: Delhi.
SC No.134/09 State vs. Anoop Singh & Ors.
:32: FIR No. 110/04PS : Special Cell SC No. : 134/09 02.02.11.
2:30 PM Present : Sh. Rakesh Mehta, Learned APP for State.
Convicts Anoop Singh and Yogesh in person with Counsel Sh. Dinesh Mudgil.
Vide order on sentence announced of even date on separate sheets, convict Anoop is sentenced for offence punishable U/s 307 IPC to Rigorous Imprisonment for three years, in addition to payment of fine of Rs.3,000/, in default whereof he shall undergo SI for six months. He is sentenced for offence punishable U/s 186 IPC to Imprisonment for three months, in addition to payment of fine of Rs.1,000/, in default whereof he shall undergo SI for one month. He is sentenced for offence punishable U/s 353 IPC to Rigorous Imprisonment for one year, in addition to payment of fine of Rs.2,000/, in default whereof he shall undergo SI for two months. He is also sentenced for offence punishable U/s 25 Arms Act to Imprisonment for six months and for offence punishable U/s 103 D.P. Act to Imprisonment for three months. All the sentences shall run concurrently. Benefit of S.428 CrPC be also given to convict Anoop.
SC No.134/09 State vs. Anoop Singh & Ors.
:33:Convict Yogesh is sentenced for offence punishable U/s 186 IPC to Imprisonment for three months, in addition to payment of fine of Rs. 1,000/, in default whereof he shall undergo SI for one month. He is sentenced for offence punishable U/s 25 Arms Act to Rigorous Imprisonment for six months and for offence punishable U/s 103 D.P. Act to Imprisonment for three months. All the sentences shall run concurrently. Benefit of S.428 CrPC be also given to convict Yogesh.
At this stage, an application U/s 389 CrPC for suspension of sentence and for grant of bail till filing of appeal filed.
Heard.
Both the convicts are admitted to bail on furnishing personal bond in the sum of Rs.20,000/ each with one surety each in the like amount till 60 days from today or till filing of appeal whichever is earlier.
Reader to report whether fine has been deposited. Reader has reported that fine has been deposited. Bail bonds furnished and accepted.
Copies be given free of cost to both the convicts. File be consigned to Record Room.
(Kaveri Baweja) Additional Sessions JudgeFTC (Central) Tis Hazari Courts: Delhi.
SC No.134/09 State vs. Anoop Singh & Ors.