Delhi District Court
Sc No: 48/09 State vs . Tanvir Khan Etc. on 3 July, 2010
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In the Court of Ms. Shalinder Kaur
Additional Sessions JudgeFTC (Central)
Tis Hazari Courts: Delhi.
Sessions Case No. : 48/09
State
versus
1. Tanvir Khan @ Prince
S/o Naib Khan
R/o C116, Madipur
J.J. Colony
Delhi
2. Suresh @ Kancha
S/o Ram Parkash Nepali
R/o B5/191, Sector 5
Rohini, Delhi
3. Hari Arun S/o Prabha Shankar
R/o A93, SBM Colony
Karampura, Delhi
4. Jeet @ Jeetu
S/o Vashist Mehto
R/o L232, Raghubir Nagar
Delhi
5. Ravinder Kumar @ Pappu
SC No: 48/09 State vs. Tanvir Khan etc.
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S/o Zile Singh
R/o WZ556, Raghubir Nagar
Delhi
Case arising out of:
FIR No. : 795/02
Police Station : Patel Nagar
Under Section : 399/402/34 IPC & 25/54/59 Arms Act
Judgment reserved on : 01.07.10
Judgment pronounced on : 03.07.10
JUDGMENT
Case History:
1. Accused Tanvir Khan @ Prince, Suresh @ Kancha, Hari Arun, Jeet @ Jeetu and Ravinder Kumar stood trial before this Court for the offence punishable U/s 399/402/34 IPC & 25/54/59 Arms Act.
2. In brief the case of the prosecution is that on 26.12.02 at around 4:15 PM SI Babu Ram had received a secret information to the effect in Satya Park, 56 miscreants had gathered behind the bushes and who were planning to commit dacoity in a jewelery shop at West Patel Nagar SC No: 48/09 State vs. Tanvir Khan etc. :3: market. At that time SI Babu Ram was on patrolling duty with HC Vir Singh, Constable Robin, Constable Krishan Kumar, Constable Rajbir and Constable Ram Mehar. Immediately SI Babu Ram directed HC Vir Singh who was in civil dress to accompany the secret informer at Satya Park and to hear the conversation of those 56 boys. In case the information was found to be correct, he would give signal to the raiding party by moving his hand over his head. Accordingly, HC Vir Singh heard the conversation of boys who were sitting behind the bushes in the park and gave a signal. Immediately SI Baburam asked the passerbys to join the raiding party but they all left after telling their difficulties without disclosing their names and addresses. Then without wasting more time, SI Baburam made a raiding party of the staff which encircled the bushes where the boys were sitting and at 4:40 PM they were overpowered. After apprehending those boys, their names were inquired and they were personally searched. From the left pocket of pant of accused Tanvir Khan, a country made pistol containing one live cartridge was recovered. From the right pocket of his pant four live cartridges were recovered. Accused Suresh, Hari Arun and Jeet were found to be armed with buttondar knives while accused Ravinder Kumar was in possession of graridar knife. After measurement all the arms were sealed with the seal of DRP and seized. SI Babu Ram prepared the rukka Ex.PW 11/C and got the FIR Ex.PW 4/A registered. The accused persons were arrested.
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3. On completion of the investigations, charge sheet for offence punishable U/s 399/402/34 IPC & 25/54/59 Arms Act was laid. After the case was committed for trial to the Sessions, Charge for offences punishable U/s 399/402 IPC & 25/54/59 Arms Act was framed against all the accused vide orders dated 03.02.05 to which they pleaded not guilty. During trial on 01.03.08 accused Suresh @ Kancha, on 23.09.08 Accused Jeet @ Jeetu and on 03.02.10 accused Hari Arun @ Arun Kumar were declared Proclaimed offenders. The prosecution examined 11 witnesses in order to substantiate the charge against the accused. Evidence:
4. PW1 Constable Ram Mehar Singh, PW3 Constable Robin Singh, PW5 Constable Vir Singh, PW9 Constable Rajbir Singh, PW10 SI Kanhaiya Lal and PW11 Retd. SI Babu Ram are the members of the raiding party. Their statements shall be adverted to subsequently in detail.
5. PW 2 HC Gobind Singh was posted as Malkhana Mohar in police station Patel Nagar on 26.12.02. He has deposed that on the said day ASI Kanhaiya Lal had deposited the case property of the case in the malkhana. He had made entries to said effect in malkhana register which SC No: 48/09 State vs. Tanvir Khan etc. :5: he proved as Ex.PW 2/A. The witness also proved the original road certificate vide which the case property was sent to CFSL Kolkata as Ex.PW 2/B. The witness was cross examined on behalf of the accused.
He admitted that in column no. 4 of the register he did not mention that the case property was deposited by him in the malkhana. The witness could not tell the time when the case property was handed over to him for being deposited in the malkhana or when he handed over the same to Constable Sukhdev for carrying it to CFSL.
6. PW4 ASI Dharam Singh was working as Duty Officer on the fateful day in police station Patel Nagar and he had registered the FIR of the case on the basis of rukka which was brought by Constable Ram Mehar Singh. He proved the FIR Ex.PW 4/A. The witness further proved the endorsement made by him on the rukka as Ex.PW 4/B. The witness denied the sole suggestion given to him in crossexamination that he did not received the rukka in police station.
7. PW6 Dr. N.P. Waghmare, Senior Scientific Officer (Ballistic), CFSL, Kolkatta has proved the report given by him as Ex.PW 6/A regarding examination conducted by him of the pistol and five live cartridges. The witness also correctly identified the case property i.e. the katta Ex.P3 and cartridges as Ex.P4/1 to Ex.P4/5. In crossexamination the witness admitted that in his report Ex.PW 6/A it is not mentioned SC No: 48/09 State vs. Tanvir Khan etc. :6: that the parcel received in laboratory was sealed with the seal of BPR. After seeing cartridge Ex.P4/1 the witness admitted that the same does not have any imprint of firing on its percussion cap. He further admitted that without leaving an impression of firing the cartridge cannot be fired The other suggestions were denied by the witness.
8. PW7 Constable Sukhdev deposed that on 28.01.03 while he was posted in police station Patel Nagar. He had taken a sealed pullanda bearing seal of BPR to FSL Kolkatta and after depositing the same there he brought back the copy of RC and receipt which he had handed over to MHC(M) on 31.01.03. The witness also deposed that till the said pullanda remained in his possession it was not tampered with in any manner. The testimony of the witness is unchallenged.
9. PW8 David Lalrinsanga, DIG, SR, Mizoram deposed that on 29.09.03 he was posted as Additional DCP, West District. The FSL report along with copy of FIR, statement of prosecution witness and seizure memo of the case were put up before him. On the basis of the said documents he granted permission U/s 39 of Arms Act for prosecution against accused Tanvir Khan @ Prince. The witness proved the said sanction letter as Ex.PW 8/A. During crossexamination the witness could not tell the number of papers or their contents which were put before him. He could not also give the details of the fire arms SC No: 48/09 State vs. Tanvir Khan etc. :7: pertaining to the case.
10. In the statement recorded U/s 313 Cr.P.C., accused persons have denied the case of prosecution and claimed to be innocent. The accused submitted that they have been falsely implicated in this case. They have not led any evidence in their defence.
Contentions:
11. It was submitted by Learned Addl. PP that all the members of the raiding party have consistently supported the case of the prosecution and there are no discrepancies in their testimony. The law is well settled that the testimony of the police witness cannot be discarded only on the ground that no independent witness was available. It is a usual practice that public persons do not come forward to become witness therefore they do not assist the police during investigation. The members of the raiding party have deposed that Investigating Officer had made efforts to seek assistance of the public during raid but no public person was willing to join them. It was also argued that testimony of PW11 Retd. SI Babu Ram is unchallenged and as there is no major discrepancy in the statement of the prosecution witnesses which could be fatal, thus the case of the prosecution has been proved beyond reasonable doubt.
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12. On behalf of accused persons it was vociferously argued that the accused persons are stated to have been apprehended from a public park in evening hours still no public witness has been joined in the investigation which casts a serious doubt on the prosecution case. Prosecution has examined only police witnesses who have contradicted each other on main facts. Therefore, reliance cannot be placed on the testimony of such interested witnesses.
Findings:
13. No doubt all the members of the raiding party i.e. PW1 Constable Ram Mehar Singh, PW3 Ct. Robin Singh, PW 5 HC Vir Singh, PW9 Constable Rajbir Singh, PW10 SI Kanhaiya Lal and PW11 Retd. Ram Babu have deposed in parrot like manner in chief examination but in crossexamination those witnesses have contradicted each other on various facts. As per testimony of PW1 Constable Ram Mehar Singh, PW3 Constable Robin Singh, PW5 HC Vir Singh, PW9 Constable Rajbir that they were patrolling the area on foot. The prosecution witnesses have further deposed that after the accused persons were apprehended the members of the raiding party brought them to the police station in TSR. Whereas SI Kanhaiya Lal who is the partial Investigating Officer of the case and had joined the raiding party subsequently, has deposed that there were 34 vehicles of the police SC No: 48/09 State vs. Tanvir Khan etc. :9: officials i.e. motor cycles and scooters at the spot. They had brought the accused persons on motor cycles and scooters to the police station from the spot. PW1 and PW3 have deposed that they were not carrying any arms whereas PW5 HC Vir Singh has deposed that except him all the members of the raiding party were armed and Investigating Officer SI Babu Ram was carrying a pistol with him.
14. PW1 Constable Ram Mehar has deposed that as per secret information they had the knowledge that the accused might be armed, however, if the testimony of PW1 and PW3 is to be believed , it is quite strange that even after knowing that accused persons would be armed, the police party went unarmed to apprehend them. The prosecution witnesses have also testified that they did not offer their search to the accused persons before taking their search.
15. PW2 has deposed that police officials did not ask any public person to join the investigations of the case.
16. PW9 has deposed that no person from the Bentex factory was asked to join the raiding party, however, SI Babu Ram has asked 45 persons to join the raiding party but they had refused. PW10 SI Kanhaiya Lal who is partial Investigating Officer of the case has deposed that he did not ask any public person to join the investigations. On the other hand, SC No: 48/09 State vs. Tanvir Khan etc. :10: PW 11 Babu Ram had deposed that he had asked some passer by to join the investigations but they refused and had left the place without disclosing their names and addresses. Thus, the evidence of the prosecution is contradictory on material facts of the case. It is also not consistent that whether any independent persons were asked to join the investigations or not by the IO.
17. It is an admitted case of the prosecution that the accused were apprehended from a public place which is a big park. Thus, it is unbelievable that no public person was there inside the park when the raid was conducted by the police. As per the testimony of prosecution witnesses the police party had reached inside the park at around 4:40 PM and they had left the spot at around 11 PM.
18. PW11 Retd. SI Babu Ram has deposed that at 4:15 PM while patrolling near Bentex, Naraina road he had received a secret information that 56 criminals had collected near the bushes of Satya Park and they were planning to commit dacoity in the shop of goldsmith at West Patel Nagar Market. To get this information verified he had sent HC Vir Singh in civil uniform along with secret informer to Satya Park and to hear the conversation. From the testimony of all the prosecution witnesses it emerges that HC Veer Singh who is alleged to have heard the conversation of the accused persons did not disclose the information SC No: 48/09 State vs. Tanvir Khan etc. :11: to other members of the raiding party. PW 3 Constable Robin Singh has deposed that he had not heard the secret information and also he did not hear the conversation of the accused persons meaning thereby he was not even aware that why the accused persons were being apprehended.
19. Even otherwise there are major discrepancies in the prosecution case. From the testimony of the prosecution witness it emerges that the secret informer had heard the accused persons planning about the dacoity in the Satya Park and he had found them hiding behind the bushes inside the park. This information he had revealed to PW11 SI Babu Ram then PW11 had sent PW5 HC Veer Singh to hear the conversation who after hearing the conversation gave a signal to PW11 SI Babu Ram who then formed a raiding party and accused persons were apprehended. From the entire sequence of events, it emerges as if the accused persons were waiting in the Satya Park for being arrested by the police. They continued to plan about commission of dacoity giving an opportunity to other person to hear their secret talks. It has also not been shown that the bushes were dense enough to hide 5 persons because usually in the park such dense bushes are not available. PW5 HC Vir Singh has deposed that on receiving directions from PW11 SI Babu Ram he had gone inside Satya Park where he saw five persons hiding beside the bushes. He had deposed accused persons were visible inside the park. Thus it seems to be improbable that if the accused persons were SC No: 48/09 State vs. Tanvir Khan etc. :12: visible then how they were secretly planning to commit dacoity. Thus the prosecution has failed to explain these discrepancies which are fatal to the prosecution case. Accordingly, accused Tanvir and Ravinder are acquitted of the charges framed against them after giving them benefit of doubt. As accused Suresh @ Kancha, Jeet @ Jeetu, Hari Arun @ Arun Kumar are declared Proclaimed offenders, file be consigned to record room and be revived as and when any of these proclaimed offenders shall be arrested.
Announced in the Open Court On 03.07.10 (Shalinder Kaur) Additional Sessions JudgeFTC (Central) Tis Hazari Courts: Delhi.
SC No: 48/09 State vs. Tanvir Khan etc. :13: State Vs Tahnvir Khan & Ors.
FIR No. 795/02PS : Patel Nagar SC No. : 48/09 03.07.10 Present : Sh. Mohd. Iqrar, Learned APP for State.
Accused Tanvir and Ravinder on bail with Proxy Counsel Sh. Sandeep Mehra.
Accused Hari Arun, Suresh and Jeet are PO.
Vide judgment announced of even date on separate sheets, accused Tanvir and Ravinder are acquitted of the charges framed against them after giving them benefit of doubt. As accused Suresh @ Kancha, Jeet @ Jeetu, Hari Arun @ Arun Kumar are declared Proclaimed offenders, file be consigned to record room and be revived as and when any of these proclaimed offenders shall be arrested.
(SHALINDER KAUR) Additional Sessions JudgeFTC (Central) Tis Hazari Courts: Delhi.
SC No: 48/09 State vs. Tanvir Khan etc.