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Delhi District Court

State vs . 1. Vijaypal @ Lovely on 5 December, 2013

      IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS 
       JUDGE­II (NORTH­WEST) : ROHINI COURTS: DELHI


Sessions Case No. 55/2013
Unique Case ID: 02404R0385652006

State            Vs.      1.      Vijaypal @ Lovely
                                  S/o Mahender Rajput,
                                  R/o Village Islampur, 
                                  Sadar Gurgaon, Haryana. 
                                  (Acquitted)

                          2.      Surender @ Sonu 
                                  S/o Sh. Anand Singh, 
                                  R/o H. No. 691, Ward 6, Jawahar
                                  Colony, near Shiv Mandir, NIT Faridabad.
                                  (Acquitted)

                          3.      Manoj Thakran
                                  S/o Mahavir Singh,
                                  R/o VPO Islampur, 
                                  Distt.: Gurgaon, Haryana.
                                  (Acquitted)

                          4.      Deepak Kumar
                                  S/o Krishan Murari Pandey, 
                                  R/o H. No. 663/10, Jawahar 
                                  Colony, NIT Faridabad.
                                  (Acquitted)
FIR No.                   :       171/2006
Police Station            :       Kanjhawla
Under Section             :       307/353/186/34 Indian Penal Code
                                  25/27/54/59 Arms Act. 


State Vs. Vijay Pal etc., FIR No. 171/06, PS Kanjhawala                Page 1 of 62
 Date of committal to Sessions Court  : 27.02.2007
Date on which orders were reserved  :  30.11.2013
Date on which judgment pronounced : 05.12.2013


JUDGMENT 

CASE OF PROSECUTION IN BRIEF:

(1) The case of the prosecution in brief is that on 25.10.2006 at 8:00 AM, in the fields near high tension wire pole Rama Vihar crossing, Mubarakpur Mazra Road, Delhi, the accused persons namely Vijay Pal, Surender, Deepak, Karambir Thakran (since PO) and Manoj Thakran, in furtherance of their common intention, obstructed, used criminal force and also fired upon the police officials namely Inspector Jitender, SI Akshay Kumar, ASI Dharambir, Ct. Sunil, Ct. Amit Tomar, Ct. Ved Parkash, Ct. Yogender, Ct. Ishwar Singh and Ct. Surender, in discharge of their official duties being public servants. It is further alleged that at the time of incident, the accused Surender @ Sonu was found in possession of country made pistol along with one live cartridge; accused Karambir was found in possession of one desi katta having one fired cartridge in the chamber; accused Vijay Pal was found in possession of one country made pistol having one live cartridge in the chamber and three live cartridges in the magazine of the pistol; accused Manoj Thakran was found in possession of one country made pistol and one live cartridge in its chamber and the accused Deepak was also found in possession of one country made pistol and two live cartridges, all without any valid license. State Vs. Vijay Pal etc., FIR No. 171/06, PS Kanjhawala Page 2 of 62

CHARGE:

(2) Charges under Sections 307/353/186/34 Indian Penal Code and and 25/27/54/59 Arms Act, were settled against all the accused namely Vijay Pal, Surender, Deepak, Karambir Thakran (since PO) and Manoj Thakran to which they pleaded not guilty and claim trial.

EVIDENCE (3) In order to discharge the onus upon it, the prosecution has examined as many as Eighteen Witnesses as under:

(4) PW1 HC Sunil Kumar has deposed that on 25.10.2006 he was posted at crime branch, ISC Chanakaya puri as constable and at about 6:15 AM he along with Insp. Jitender Kundu, HC Parmod Kumar, Ct. Davender, Ct.Ved Parkash and HC Sanjay were present near water tankvillage Karala, Delhi. According to him, they reached there in their government gypsy bearing registration No. 7129 to verify some secret information and at the same time Insp. Jitender Kundu received a phone call on his mobile phone and thereafter he told them that the said phone call was from their office at Chanakyapuri. Witness has further deposed that he briefed them that he received information on phone that the members of Neetu Gahlot Gang who are involved in a case FIR No. 251/06 PS Vishkarma, Jaipur, Rajasthan will come towards Rama Vihar via Mubarakpur and Madanpur, Delhi on two motorcycles bearing registration No.s HR­26­AD­0488 and HR­26­AD­3969 and also carrying State Vs. Vijay Pal etc., FIR No. 171/06, PS Kanjhawala Page 3 of 62 arms and ammunition in their possession, if raid is conducted they can be apprehended. According to him Insp. Jitender Kumar asked Insp.

Subhash Tandon and SI Akshay Kumar of their Crime Branch ISC Section, one phone to reach at the spot with staff. Witness has further deposed that after about 20 minutes Insp. Subhash Tandon and SI Akshay Kumar along with their staff reached near the water tank mentioned above and thereafter Insp. Jitender Kundu briefed all the staff about the secret information. According to him Insp. Jitender Kundu asked 4­5 passerbyes to join the raiding party after briefing them about the contents of the secret information and they left the place i.e. Near the water tank mentioned above for Mubarakpur Majri road in a three vehicles i.e. Two government gypsy and one Qualis and they reached Mubarakpur village Majri road. According to him all the police officials were divided into three teams and one team was formed under the supervision of Insp. Jitender Kundu, second team was formed under the supervision of Insp. Subhash Tandon and third team was formed under the supervision of SI Akshay Kumar. Witness has further deposed that he was member of the team led by Insp. Jitender Kundu consisting of himself, HC Parmod, HC Sanjay and Ct. Davender and their team took position in the fields at Roop Vihar. According to him team led by SI Akshay Kumar took position on the road towards Rama Vihar side and the team led by Insp. Subhash Tandon took position near the crossing of village Majir and all the three teams were told to gave signal to other team by switching on the State Vs. Vijay Pal etc., FIR No. 171/06, PS Kanjhawala Page 4 of 62 headlight of the gypsy and Qualis as and when any of the above mentioned motorcycle passes in front of them.

(5) Witness has further deposed that at about 8:00 AM two motorcycles mentioned above came from Mubarakpur side, three persons were sitting on each of the motorcycle and when both the motorcycles passes in front of their team they gave signal to other team of police officials by switching on the headlight of the gypsy and the other two teams got altered. According to him the team led by SI Akshay Kumar and Insp. Subhash Tandon blocked the road going towards Rama Vihar and Majri side by parking the gypsy and qualis on the road and the driver of the one motorcycle tried to take a U turn after seeing the police teams present on the road. Witness has further deposed that in the meantime their team had blocked the road going towards Mubarkpur side and surrounded the accused persons when in the meantime all the six persons tried to ran away towards fields after leaving the motorcycles at the spot. According to him Insp. Jitender Kundu and other members of the raiding party warned the accused persons not to escape and gave warning to surrender themselves before them along with their arms and ammunitions but all the accused persons who were carrying weapons in their hands fired towards police party. According to him he tried to overpowered accused Karambir @ Bittoo, he fired towards their team but he was overpowered by him with the help of HC Parmod and Ct. Devender and thereafter he (witness) snatched the country made pistol from the hands State Vs. Vijay Pal etc., FIR No. 171/06, PS Kanjhawala Page 5 of 62 of accused Karambir. These witnesses have further deposed that the remaining accused persons i.e. Manoj Thakran, Deepak Kumar, Vijaypal @ Lovely and Surender @ Chelu (since expired) were overpowered by other members of the police party mentioned above. Witness has further deposed that he handed over the country made pistol which was snatched by him from accused Karambir to SI Akshay Kumar and investigating officer prepared sketch of the same after unloading the same and one fired cartridge was also taken out from the country made pistol and the sketch of the country made pistol and fired cartridge is Ex.PW1/A. Witness has further deposed that the country made pistol and fired cartridge were sealed in a pullanda by SI Akshay Kumar with the seal of AK and were taken into possession vide memo Ex.PW1/B. According to him, after completing the writing work pertaining to the recovery of weapons which were recovered from other accused persons, investigating officer SI Akshay Kumar prepared rukka and sent the same to the police station through Ct. Ved Parkash for the registration of the case, on the basis of which present case was registered. Witness has further deposed that after registration of the case SI Ramesh Dabas reached at the spot and SI Akshay Kumar handed over all the six accused, case property in sealed condition and other relevant papers to SI Ramesh Dabas and further investigations were carried out by SI Ramesh Dabas. According to him, SI Ramesh Dabas prepared site plan of the place of occurrence at the instance of SI Akshay Kumar. The witness has identified the country State Vs. Vijay Pal etc., FIR No. 171/06, PS Kanjhawala Page 6 of 62 made pistol and empty cartridge as recovered from accused Karambir Thakran from the possession of accused Karambir Thakran which are Ex.P1 and Ex.P2 respectively.

(6) In his cross­examination by Ld. Defence Counsel, the witness has deposed that the secret information was received by Insp. Jitender Kundu on mobile phone in his presence but he talked separately from them. Witness has further deposed that the team of Inps. Subhash Tandon and SI Akshay Kumar were also present in the said area on separate points initially and both the teams came at water tank Karala when Insp. Jitender Kundu informed the said team In­charge about the secret information. According to him, it took about 10 minutes in briefing and their team took over position at 7:30­7:35 AM. Witness has further deposed that one colony Roop Vihar or Roop Nagar was nearest from their position at Mubarakpur Majri road and he did not measure the distance of the said colony from their position so he cannot tell the same. According to him, their vehicle was parked on the kacha road near to the main road and they were present inside the vehicle and they were total six police officials including the driver in the said vehicle from the very beginning and there was nothing by which their vehicle could be hidden and it could be seen from the distance also. Witness has further deposed that from their position, they could see the other two vehicles of the said both teams of police officials and he do not recollect if there was any crop on the said agricultural land where they took their position and has State Vs. Vijay Pal etc., FIR No. 171/06, PS Kanjhawala Page 7 of 62 added that probably there was no crop in the field. According to him the vehicle of SI Akashy Kumar parked towards Rama Vihar side was near to their vehicle i.e. About a distance of 100­125 meter and the vehicle of Insp. Subhash Tandon was parked at some more distance from that vehicle. Witness has further deposed that he cannot tell the exact distance as he did not measure the same and since they had the number and description of the motorcycles and that was why they could identify the accused persons and all the police officials present in the vehicle saw the number of the motorcycle. According to him, he does not recollect as to who was driving the motorcycles and who was sitting as a pillion rider as the incident took place long time back. He has stated that he did not notice any weapon in their hands while going on the motorcycles and they all were sitting in the vehicle while chasing. Witness has further deposed that on seeing the police party, the accused persons tried to run away after leaving the motorcycles there and the accused persons were apprehended in the fields after a distance of about 20­25 meters. Witness has further deposed that they were twenty police officials in the said raid party and the accused did not resist at the time of their apprehension because the strength of the police officials was more and no struggle took place resulting into tearing of the clothes of any one. He has stated that it took about ten minutes to apprehend all the accused persons and he does not remember the total number of rounds fired from the accused side and has voluntarily explained that all the accused fired at the police party. State Vs. Vijay Pal etc., FIR No. 171/06, PS Kanjhawala Page 8 of 62 According to him, though people used to pass on the said road which was going from Mubarakpur Majri to Rama Vihar crossing but as it was morning time no person was passing by from there and no villager came there after hearing the noise of firing.

(7) PW2 ASI Kawal Singh has deposed that on 25.10.2006 he was posted as Duty Officer from 8:00 AM to 4:00 PM and at about 2:10 PM he received the rukka from SI Akshay Kumar through Ct. Ved Parakash on the basis of which he recorded the present FIR copy of which is Ex.PW2/A. According to him, he made his endorsement at point A in the rukka Ex.PW2/B and investigations was entrusted to SI Ramesh Dabas and he gave the copy of the FIR and original rukka to the said constable to be hand over to SI Ramesh Dabas. In his cross examination by Ld. Defence Counsel, the witness has deposed that it took one hour or one and a quarter hour in recording the FIR.

(8) PW3 SI Dharambir has deposed that on 25.10.2006 he was posted at Inter State Cell, Crime Branch, Chankyapuri and on that day, at 6:15 AM he along with Insp. Subhash Chander, HC Rajender Singh, HC Pawan (both were in uniform), Ct. Ishwar, Ct. Harinder, Ct. Surender went in government vehicle i.e. Zypsy DL 1CJ 3853 went to village Karala, Mazri road near water tank on a secret information. According to him, at that time, Insp. Jitender Kundu received a phone call on his mobile phone that the members of Neetu Gehlot gang who were involved in a case FIR No. 251/06 PS Vishawkarma, Jaipur, Rajasthan will come State Vs. Vijay Pal etc., FIR No. 171/06, PS Kanjhawala Page 9 of 62 towards Rama Vihar via Mubarkpur and Madanpur on two motorcycles No. HR 26 AD 0488 make Pulsor of red color and HR 26 AD 3969 make Pulsor of red color and it was further informed that those persons would be carrying arms and ammunitions with them, if raided could be apprehended. Witness has further deposed that entire staff was briefed by Insp. Jitender and three teams were made which were headed by Insp. Jitender Kundu, Insp. Subhash Tandon and SI Akshay Kumar and 4­5 passerbyes were also asked to join the raiding party who refused to join the same and left without disclosing their names and addresses and they took their positions near the turn of Mazri Road. According to him SI Akshay Kumar took his position on Rama Vihar and Insp. Jitender Kundu took his positions in the fields of Roop Vihar in Mazri village road and all the teams were instructed to inform each other in case the said persons come from their position side. Witness has further deposed that at about 8AM two motorcycles having three persons riding on each motorcycle without helmet came from the side of Madanpur side and were going towards Rama Vihar and Insp. Jitender Kundu after checking the number of motorcycles, informed both the other teams and he also followed those persons. According to him after getting both the informations, both the teams became alert and took their positions by blocking the road near Rama Vihar crossing Mubarakpur Mazri road and on seeing the police party, all the six persons left their motorcycles and ran towards the open fields in different directions and they started firing with the arms which State Vs. Vijay Pal etc., FIR No. 171/06, PS Kanjhawala Page 10 of 62 they were having. Witness has further deposed that he and Insp. Jitender Kundu warned those persons and fired at them by their service revolver and accused Sudesh @ Chailu (since deceased) was firing towards Ct. Ishwar Singh was apprehended by him and Ct. Harinder and a revolver of 455 bore was snatched from his hand by him and was produced before SI Akshay Kumar who opened the said revolver and checked the same from which four live cartridges and two empty cartridges were found in it. Witness has further deposed that the revolver was unloaded and its sketch of revolver and cartridges Ex.PW3/A was prepared which bears his signatures at point A and it was kept in a plastic jar and was sealed with the seal of AK and was seized vide seizure memo Ex.PW3/B. According to him the jar was given serial No. 3 and he also produced one empty cartridge of .38 bore before SI Akshay Kumar which was kept in a match box and was converted into a pullanda and it was sealed with the seal of AK and this parcel was given serial No. 9 and the same was seized vide seizure memo Ex.PW3/C which bears his signatures at point A. Witness has further deposed that all the other persons were also apprehended by other staff members and the separate weapons were recovered from their possession and the proceedings were conducted against them also. Witness has further deposed that after registration of the FIR, SI Ramesh Dabas was entrusted with further investigation of this case who reached at the spot at about 1:30 PM and SI Dabas prepared site plan at the instance of SI Akshay Kumar. According to him, SI Akshay Kumar also State Vs. Vijay Pal etc., FIR No. 171/06, PS Kanjhawala Page 11 of 62 handed over all the documents and memos along with the case property and the accused persons. He has also identified the case property i.e. Pistol Ex.P­1, test fired cartridge Ex.P­2, pistol Ex.P5 fired cartridge Ex.P­6, revolver Ex.P7, three live cartridge Ex.P­8, fired cartridges cases Ex.P­9, pistol Ex.P13, three live cartridge Ex.P­14, one empty fired cartridge Ex.P­15, pistol Ex.P10, three live cartridge Ex.P­11, one empty fired cartridge Ex.P­12, pistol Ex.P16, live cartridge Ex.P­17, one empty fired cartridge Ex.P­18, empty cartridge cases Ex.P19, match box Ex.P­20, cartridge Ex.P­21, match box Ex.P­3 and cartridge Ex.P­4. (9) In his cross­examination by Ld. Defence counsel, witness has deposed that he was in the team headed by Insp. Subash Tandon and on 25.10.2006 at about 6:30 AM their team was positioned at Karala water tank and Insp. Jitender Kundu called their team at water tank Karala and explained about the present case and their vehicle was positioned at about 25 meters away from the spot where the motorcycles of the accused persons had got slipped and fell. According to him he and Insp. Jitender Kundu had fired in the air and he handed over his fired empty cartridge to Investigating officer SI Akshay Kumar on the same day who took the same into possession. Witness has further deposed that it was the accused who fired at the police party first when they were asked to surrender and he cannot tell the exact distance between the police party and the accused when they were asked to surrender and has voluntarily State Vs. Vijay Pal etc., FIR No. 171/06, PS Kanjhawala Page 12 of 62 explained that he did not pay any attention to the aspect at that time. Witness has admitted that there was traffic on the road when the motorcycles of the accused persons got slipped as it was around 8 AM or that public persons were moving around the spot. According to him, the police team did not join public persons in the investigations subsequent to the accused who were apprehended and while taking the fire arm from the possession of the accused, the same were taken by naked hands and no gloves etc were used. Witness has further deposed that it took around 11­12 hours to complete the proceedings at the spot and some of the proceedings were completed at the spot by the Investigating officer and rest was completed in the ISC section Chankyapuri and he departed from his ISC section on 24.10.2006 at about 10:40 PM vide DD No. 11. Witness has denied the suggestion that there is no firing on behalf of the accused. Witness has denied the suggestion that even they did not return make any fire. Witness has denied the suggestion that empty cartridge cases were planted at the spot to give a color of reality to the incident. Witness has further deposed that the public persons did not collect on hearing the firing. Witness has denied the suggestion that no incident as aforesaid had taken place. Witness has denied the suggestion that all the accused had gone to Madanpur village to meet Sunil Kumari, the mausi of the accused Manoj Thakran who is also the sister in law of accused Sudesh @ Chhailu from where they were illegally lifted and detained on the night of 24.10.2006 and only to legalize their detention they have all State Vs. Vijay Pal etc., FIR No. 171/06, PS Kanjhawala Page 13 of 62 been falsely implicated in the present case by concocting the story of the accused being apprehended from Madanpur Karala Road at T point as deposed by him.

(10) PW4 HC Naresh has deposed that on 25.10.2006 he was posted at Police Station Kanjhawala as MHC (M). He has proved the various entries made by him in register no. 19 and 21 in respect of deposit of case property of this case vide memos Ex.PW4/A, Ex.PW4/A, Ex.PW4/B, Ex.PW4/C, Ex.PW4/B and Ex.PW4/A. In his cross examination, the witness has deposed that on 30.10.2006 the exhibits i.e. seven sealed pullandas were sent to FSL Rohini by his munshi as he was attending the court on that day as per his endorsement X and Y on Ex.PW4/A. (11) PW5 Insp. Jitender Singh has deposed that on 25.10.2006 he was posted at the Inter State Cell, Crime Branch, Chankyapuri as Inspector and on the request of Jaipur Police, SHO police station Vishawkarama in connection with case FIR No. 251/06, police station Vishawkarama request to ISC Crime Branch was made to apprehend the criminals involved in the said case. According to him, he was present in North West District along with his team and at 6:00 AM SI Ramesh Kumar telephonically informed him that some criminals involved in aforesaid case of police station Vishwakarma, the members of Neetu Gahlot will arrive from Madanpur to Rama Vihar on two motorcycles bearing registration No. HR­26AD 0488 and DR 26AD 3969 make Bajaj State Vs. Vijay Pal etc., FIR No. 171/06, PS Kanjhawala Page 14 of 62 Pulsor and they would be carrying weapons with them and if raided they could be apprehended. According to him at 6:30 AM he reached Karala water tank with his team comprising of HC Sanjay, HC Vijender, HC Pramod, Ct. Sunil, Ct. Ved Prakash and driver Ct. Devender in his gypsy DL 1CF 7129. Witness has further deposed that in the meantime Insp. Subhash Tandon and SI Akshay Kumar along with their team in their vehicles reached at Karala water tank and three teams were constituted one under his supervision, one under supervision of Insp. Subhash Tandon and another under supervision of SI Akshay Kumar and both the team heads were directed to chase the criminals from their location as decided and put on the lights of the vehicle to give the signal to the other party. According to him, four to five person going to attend the natures' call in the morning were also asked to join the raiding party but none of them were ready and went away without disclosing their names and addresses. Witness has further deposed that thereafter at 7:30 AM, he took his position at Roop Vihar, Mubarakpur Mazri Road, Insp. Subhash Tandon took his position on Mubarkpur Mazri road and SI Akshay Kumar took his position at approach road Rama Vihar from Mubarakpur Mazri Road and all the team members were carrying weapons and one bullet proof jacket each. According to him at about 8 AM two motorcycles were found coming from Mubarakpur on Mazri Road, when they crossed him and his team, he identified the two motorcycles three persons on each motorcycle were sitting and he with his team started State Vs. Vijay Pal etc., FIR No. 171/06, PS Kanjhawala Page 15 of 62 chasing in his vehicle after putting on the head lights. Witness has further deposed that keeping in view the signal, both the teams cordoned of both the roads and the criminals found them surrounded by the police spilled their motorcycles on the road and started running towards empty fields towards Madanpur side and all the police personnels started chasing them. According to him, he along with ASI Dharamvir alarmed them to surrender by taking out their service revolvers towards them and in response to this the criminals fire at police party. Witness has further deposed that he, himself and ASI Dharamvir fired two rounds from their service revolver in the air and he along with HC Sanjay and Ct. Ved Parkash apprehended one Manoj Thakran with pistol in his right hand, HC Pramod with staff apprehended Karamveer Thakran with one country made pistol in his right hand. According to him ASI Dharamveer with staff apprehended Sudesh Chailu with revolver in his right hand, HC Rajender with staff apprehended Surender @ Sonu in his right hand, SI Akshay Kumar with staff apprehended Vijay Pal @ Lovely and HC Virender with staff apprehended Deepak with pistol. Witness has further deposed that after apprehension Ct. Ved Prakash handed over the pistol recovered from accused Manoj Thakran to SI Akshay Kumar. According to him the pistol was found loaded with one live cartridge 7.65 mm in the chamber, the cartridge was removed, a sketch of pistol as well as live cartridge was prepared by SI Akshay Kumar and thereafter, it was sealed in a plastic transparent jar and the jar was provided serial No.1, State Vs. Vijay Pal etc., FIR No. 171/06, PS Kanjhawala Page 16 of 62 respectively the sketch of weapons recovered were made by SI Akshay Kumar. Witness has further deposed that all the weapons were sealed in the transparent jars with the seal of AK and they were seized vide separate seizure memos and thereafter Ct. Ved Parkash searched three empty cartridges from the spot two were of 9mm and one was of 7.65 mm and handed over the same to SI Akshay Kumar which were fired by the accused persons. According to him the same were also packed and sealed with the seal of AK and serial No. 7 was provided to this pullanda and thereafter he handed over his empty cartridge of .38 bore from his revolver to SI Akshay Kumar and the same was packed in a match box and sealed with the seal of AK and the said pullanda was given serial No. 8 and it was seized vide seizure memo Ex.PW5/A. Witness has further deposed that thereafter, ASI Dharamvir also took out an empty cartridge of .38 bore from his service revolver and handed over the same to SI Akshay Kumar and the same was also packed in a match box and sealed with the seal of AK and the said pullanda was given serial No. 9 and it was seized. According to him thereafter the FSL form was filled up by SI Akshay Kumar and the seal after use was handed over to Ct. Yogender. Witness has further deposed that a complaint/rukka was prepared by SI Akshay Kumar and handed over to Ct. Ved Prakash for registration of case and in the meantime, SI Ramesh Kumar who was entrusted with the further investigations as per directions of the senior officers arrived at the spot and SI Akshay Kumar handed over the entire accused, case property State Vs. Vijay Pal etc., FIR No. 171/06, PS Kanjhawala Page 17 of 62 and documents to SI Ramesh Kumar and SI Akshay Kumar narrated the facts to him.

(12) Witness has further deposed that SI Ramesh Kumat at the instance of SI Akshay Kumar inspected the site and prepared the site plan and in the meantime, Ct. Ved Prakash arrived at the spot after registration of the case and the initials of FIR were marked on the documents prepared by SI Akshay Kumar and on the site plan also. According to him thereafter, the accused were interrogated by SI Akshay Kumar and were arrested one by one and the said two motorcycles on which the accused persons were riding were also seized by SI Ramesh Kumar. Witness has identified the accused Deepak, Surender and Manoj in the court. Accused Vijay Pal @ Lovely who was in Bharatpur Jail, was not present, whose identity is not disputed by the Ld. Defence counsel. Witness has also identified the case property / recovered. (13) In his cross­examination by Ld. Defence Counsel, witness has deposed that they were all 21 police officials of Crime Team in the raiding party and he was having his official weapon with him i.e. .38 bore revolver with cartridges and other police officials were also having their fire arms with them and his vehicle was parked on the road and the motorcycle of the accused persons were coming from the opposite site, the accused persons passed by his vehicle thereafter he gave the signal to the other police teams by putting on the head lights of his vehicle. According to him, there was a gap of about 100 meters between his State Vs. Vijay Pal etc., FIR No. 171/06, PS Kanjhawala Page 18 of 62 vehicle and the other vehicle which was having the other police party and thereafter the accused persons found themselves trapped and therefore the accused persons took u­turn and while taking U turn, their bikes got skid and fell down and thereafter all the accused persons fled to the empty agriculture fields towards Madanpur. Witness has further deposed that there was gap of about 20 to 25 meters from his vehicle to the spot where the motorcycles of the accused persons had fallen down and he cannot tell the distance between him and the accused persons as they were running in different directions and they were chasing them and he was at the forefront of his chasing team. Witness has denied the suggestion that he was not able to give the details regarding the distance between the accused persons, distance between accused persons and his team and also distance between his team and other police teams because it is a concocted story and the accused persons have never been chased. Witness has denied the suggestion that this is a false and concocted case just to take the credit of fake encounter or that no accused fired upon police party and it was a fake case that is why none of the police officials sustained injury.

(14) PW6 Dr. Joy Tirkey has deposed that on 27.11.2006 he was posted as ACP Inter State Cell, Crime Branch, Chankyapuri, Delhi and on that day based on the documents produced before him, he had filed the complaint U/s 195 Cr. P.C. in the present case which complaint is Ex.PW6/A and list of witnesses Ex.PW6/B. In his cross­examination, State Vs. Vijay Pal etc., FIR No. 171/06, PS Kanjhawala Page 19 of 62 witness has denied the suggestion that he has lodged this complaint knowingly just to falsely implicate the accused persons on the basis of false and fabricated documents.

(15) PW7 HC Dharambir has tendered his examination in chief by way of affidavit which is Ex.PW7/1 wherein he has relied upon the entry in register no. 21 vide RC No. 173/21 dated 30.10.2006 copy of which is Ex.PW7/A and copy of the receipt issued by the FSL is Ex.PW7/B. In his cross examination, the witness has denied that entries in register no. 21 have been fabricated on the directions of senior officers. (16) PW8 Ct Harender has tendered his examination in chief by way of affidavit which is Ex.PW8/1 and has relied upon document document i.e. entry in register no. 21 vide RC No. 173/21 dated 30.10.2006 copy of which is Ex.PW7/A copy of the receipt issued by the FSL is Ex.PW7/B. He has not been cross examined on behalf of the accused despite opportunity.

(17) PW9 Ct Shiv Prasad has tendered his examination in chief by way of affidavit which is Ex.PW9/1 wherein he has relied upon document i.e. DD No. 10, DD No.11 and DD No.12 dated 24.10.2006 which are Ex.PW9/A (colly), DDNo.2 and DD No.5 dated 25.10.2006 are collectively Ex.PW9/B. In his cross examination the witness has denied that the above DD entries in have been fabricated on the directions of senior officers.

State Vs. Vijay Pal etc., FIR No. 171/06, PS Kanjhawala Page 20 of 62 (18) PW10 K C Varshney has deposed that on 30.10.2006 seven parcels in sealed condition containing the exhibits of this case were received at FSL Rohini, which were marked to him for examination. According to the witness he examined all the exhibits i.e. one improvised pistol 7.65mm caliber marked as F.1, one 7.65mm cartridge marked A­1, country made pistol .32mm inches bore marked as F.2, one .32inch cartridge case marked EC­1 (percussion cap is absent), revolver .455 inch caliber marked F.3, four .455 inches cartridges marked As A­1 to A­5 and two .455inches cartridge cases and the same werer marked EC­2 and EC­3, improvised pistol 9mm bore marked F.4, four 9mm cartridges marked A­6 to A­9, improvised pistol 9mm caliber marked F.5, four 9mm cartridges marked A­10 to A­13, improvised pistol 7.65mm caliber, marked F.6, two 7.65mm cartridge marked A­14 and A­15, two 9mm cartridge cases marked EC­4 and EC­5, one 7.65mm cartridge case marked EC­6 (percussion cap is absent on EC­6). The witness has deposed that on examination of aforesaid exhibits he found that :

(19) The improvised pistols marked F­1 and F­6 were in working order and test fire conducted successfully; the country made pistol Ex.F­2 was in working order and test fire conducted successfully; the revolver Ex.F­3 was in working order and test fire conducted successfully; the improvised pistols of 9mm caliber Ex.F­4 and F­5 were in working order and test fire conducted successfully; the 7.65mm cartridges marked Ex.A­1, A­14 and A­15 were live and the cartridges marked A­1 and A­14 State Vs. Vijay Pal etc., FIR No. 171/06, PS Kanjhawala Page 21 of 62 were test fired through the improvised pistol marked Ex.F­1 and F­6 and test fired cartridge cases were marked as TC­1 and TC­6 respectively;

the .455inches cartridges marked Ex.A­2 to A­5 were live and the cartridges marked Ex.A­2 was test fired through the revolver Ex.F­3 and test fired cartridge cases were marked as TC­4; the 9mm cartridges marked Ex.A­6 to A­13 were live and the cartridges marked Ex.A­6 and A­10 were test fired through the improvised pistols marked Ex.F­4 and Ex.F­5 and test fired cartridge cases were marked as TC­4 and TC­5 respectively; the cartridge cases marked EC­1 to EC­6 were fired empty cartridges; the individual characteristics of firing pin marks present on evidence fired cartridge cases marked Ex.EC­2 and EC­3 and on test fired cartridge case TC­3 were examined and compared under the comparison microscope and were found identical hence he was of the opinion that the Ex. EC­2 and EC­3 have been fired through the revolver of .455inch caliber marked Ex.F­3. The individual characteristics of firing pin marks and chamber marks present on evidence fired cartridge cases marked Ex.EC­4 and EC­5 and on test fired cartridge case TC­5 were examined and compared under the comparison microscope and were found identical hence he was of the opinion that the Ex. EC­4 and EC­5 have been fired through the improvised pistol of 9mm caliber marked Ex.F­5. The witness proved that no opinion can be given regarding fired cartridge cases marked EC­1 and EC­6 due to insufficient data as percussion caps were absent. He has stated that the exhibits F­1 to F­6 were fire arms and State Vs. Vijay Pal etc., FIR No. 171/06, PS Kanjhawala Page 22 of 62 the cartridges / cartridge cases marked Ex.A­1 to A­15 and EC­1 to EC­6 were ammunition as defined in the Arms Act. He has proved his detailed report dated 22.12.2006 in this regard is Ex.PW10/A (running into three pages) and bears his signatures at point A on each page. He has identified the above said articles which are Ex.P1, P2 and P5 to P19. (20) In his cross examination the witness has deposed that he did not check on the presence of the gun power inside the barrel of any of the fire arm and has voluntarily added that he was not asked by the Investigating Agency to check the same. He has denied that all the fire arms were not in a working condition or that the report given by him as aforesaid was on the asking and in connivance with the Investigating Offcer.

(21) PW11 Inspector Akshay Kumar has deposed that on 25.10.2006 he was posted in Inter­State Cell, Crime Branch, Chanakya Puri, Delhi and they had already information from Jaipur Police that wanted criminal in case FIR No. 251/06 of Police Station Vishwakarma, Jaipur, Rajasthan were moving around in Delhi area and on 25.10.2006 he along with 5­6 officials of the crime branch was present in the Outer District area. According to him Inspector Jitender of Crime Branch was also in the area with his 6­7 team members and Inspector Subhash Tandon was also present in the area alognwith his 6­7 team members and SI Ramesh Dabas received the secret informations at the office of their crime branch on telephone at about 5.45 AM that the gang members of State Vs. Vijay Pal etc., FIR No. 171/06, PS Kanjhawala Page 23 of 62 the criminals who had committed the offence in the above said case FIR were coming to Rama Vihar on two Red Colour Pulsor motorcycles. Witness has further deposed that he lodged the DD entry in this regard and inform about the information to Inspector Jitender, he called him and Inspector Subhash Tandon with their team members near water tank, Karala, Karala­Madanpur Road and informed them about the above said secret information and they officials were briefed by Inspector Jitender Singh. According to him thereafter they all reached at the Karala­ Madanpur Road near water tank and took possession and there was a T point on the Road and their three teams took position on all the three roads and it was decided who will apprehend the above said offenders, will give the signals to the other teams by switching on the headlight of vehicle. Witness has further deposed that Inspector Jitender asked 4­5 public persons to join the police proceedings but none agreed and left the place without informing their names and addresses on one pretexts or other and at about 8.00AM two motorcycles came from the area towards where the Inspector Jitender was taking position with his team and there was three persons were sitting on each motorcycle and Inspector Jitender gave a signal by switching on the headlight of his vehicle and thereafter Inspector Subhash Tandon put his Gypsy on the way of the motorcycles and he also moved towards the T point and the motorcyclist found themselves surrounded by them. According to him all the motorcyclist ran towards the field area after leaving their motorcycles and they took State Vs. Vijay Pal etc., FIR No. 171/06, PS Kanjhawala Page 24 of 62 out their fire arms and fired 5­6 rounds upon them but they saved themselves and did not receive injuries. He has deposed that they also fired 3­4 rounds in their defence upon the above said persons in their response. Witness has further deposed that thereafter they overpowered the above said six persons who disclosed their names as Sudesh @ Chhailu, Deepak, Karamveer, Vijay Pal @ Lovely, Surender and he does not remember the name of the sixth person. Witness has further deposed that on formal search of accused Sudesh one revolver of 455 bore was recovered and some live cartridges and some fired empty cartridges were found from the revolver and he prepared the sketch of the revolver and fired and live cartridges which were recovered from the possession of accused Sudesh vide Ex.PW3/A bearing his signatures at point B and he took measurement of the revolver and cartridges and the same was mentioned the sketch and he kept the revolver and all the live and empty cartridges in a plastic container and sealed the same with the seal of AK and seized the same vide memo Ex.PW3/B bearing his signatures at point B and accused Sudesh put his signatures at point C and the four live cartridges and two fired cartridges alongwith revolver were recovered from the possession of accused Sudesh @ Chhailu. Witness has further deposed that on the formal search of accused Deepak one country made pistol of 7.65mm bore and two live cartridges were recovered from his possession and he prepared the sketch of the pistol and cartridges with magazine vide Ex.PW11/A bearing his signatures at point A and Ct. State Vs. Vijay Pal etc., FIR No. 171/06, PS Kanjhawala Page 25 of 62 Yogender put his signatures at point B and he took measurement of the same and mentioned in the sketch and he kept the same in a plastic container and sealed the same in a plastic container with the seal of AK and seized the same vide Ex.PW11/B bearing his signatures at point A and Ct. Yogender put his signatures at point B and accused Deepak put his signatures at point C. According to him the sixth accused disclosed his name as Manoj. Witness has further deposed that on the formal search of accused Manoj one pistol of 7.65mm bore along with one live cartridge recovered from his possession and he prepared the sketch of the pistol, cartridge and magazine vide Ex.PW11/C bearing his signatures at point A and Ct. Ved Prakash put his signatures at point B and he took measurement of the same and mentioned the same in the sketch and sealed the same in a plastic container with the seal of AK and seized the same vide memo Ex.PW11/D bearing his signatures at point A, Ct. Ved Prakash put his signatures at point B and accused Manoj put his signatures at point C. Witness has further deposed that on the formal search of the accused Surender one pistol along with four live cartridges recovered from his possession and he prepared the sketch of the pistol, cartridge and magazine vide Ex.PW11/E bearing his signatures at point A, Ct. Surender put his signatures at point B and he took measurements of the same and mentioned in the sketch and he sealed the same in a plastic container with the seal of AK and seized the same vide seizure memo Ex.PW11/F bearing his signatures at point A, Ct. Surender put his State Vs. Vijay Pal etc., FIR No. 171/06, PS Kanjhawala Page 26 of 62 signatures at point B and accused Surender put his signatures at point C. Witness has further deposed that on the formal search of accused Vijay Pal @ Lovely, one pistol, four live cartridges were recovered from his possession and he prepared the sketch of the pistol and cartridges with magazine vide memo Ex.PW11/G bearing his signatures at point A and Ct. Amit put his signatures at point B and he took measurement of the same and mentioned the same in the sketch and he sealed the above said articles in a plastic container with the seal of AK and seized the same vide seizure memo Ex.PW11/H bearing his signatures at point A, Ct. Amit put his signatures at point B and accused Vijay Pal put his signatures at point C. Witness has further deposed that on the formal search of accused Karamvir, one country made pistol with empty fired cartridge case was recovered from his possession and he prepared the sketch of the same vide Ex.PW1/A bearing his signatures at point C and took measurements and mentioned the same in the sketch and sealed the same in a plastic container with the seal of AK and seized the same vide memo Ex.PW1/B bearing his signatures at point C. Witness has further deposed that Ct. Ved produced two empty fired cartridge cases of 9mm and one empty / fired cartridge case of 7.65 mm to him which were found at the spot after the firing by the accused persons and he kept the same in a match box and sealed the same with the seal of AK and seized the same vide seizure memo Ex.PW11/I bearing his signatures at A and Ct. Ved Parkash put his signatures at point B and he then filled the FSL form. State Vs. Vijay Pal etc., FIR No. 171/06, PS Kanjhawala Page 27 of 62 Witness has further deposed that Inspector Jitender also handed over one fired cartridge case of .38 bore to him and he kept the same in a match box and sealed same with the seal of AK and seized the same vide seizure memo Ex.PW 5/A bearing his signatures at point B. Witness has further deposed that ASI Dharambir also handed over one fired empty cartridge case of .38 bore to him and he kept the same in a match box and sealed the same with the seal of AK and seized the same vide Ex.PW3/C bearing his signatures at point B, signatures of Ct. Yogender at point C. According to him he prepared the rukka Ex.PW2/B (running into give pages) bearing his signatures at point B and handed over the same to Ct. Ved Parkash for registration of FIR and he had gone to Police station with rukka and SI Ramesh Dabas came at the spot being the Investigating officer of the case and he handed over all the seized articles and prepared documents and also the accused persons to SI Ramesh Dabas for further investigations. Witness has further deposed that he had shown the place of incident to SI Ramesh Dabas who prepared the site plan and he told all the facts to SI Ramesh Dabas and thereafter he left the place of incident and Ct. Ved Parkash came at the spot along with the copy of the FIR of this case with original rukka and handed over the same to SI Ramesh Dabas. The witness has identified the accused as well as the case property / recovered articles.

(22) In his cross­examination by Ld. Defence counsel, witness has deposed that on 25.10.2006 at about 4:45 AM he was posted in the outer State Vs. Vijay Pal etc., FIR No. 171/06, PS Kanjhawala Page 28 of 62 district near the Karala village and they had a secret information regarding the presence of the accused in the present case being available in the area. According to him one of the team was being headed by him and his team was positioned on the turning of the T­point i.e. about 40­50 steps ahead on the road leading to towards Rama Vihar and his team was in a Toyota Qualis vehicle, he do not remember the number of the vehicle. Witness has further deposed that the first indication regarding the presence of the accused was made by Insp. Jitender by switching on the head lights and from the place where the motorcycle of the accused had slipped he was hardly at a distance of about 8­10 steps away and after the accused fell down all of them starting running towards the vacant fields. According to him at present he cannot tell who all were carrying the fire arm in the police party and has voluntarily explained that he can only tell after seeing the official record. Witness has denied the suggestion that there was no firing on behalf of the accused. Witness has denied the suggestion that even they did not return any fire. Witness has denied the suggestion that empty cartridge cases were planted at the spot to give a color to the reality to the incident. Witness has further deposed that public persons did not collect on hearing the firing. According to him he did not gave any notice to public persons who had refused to join the investigation and he did not join any public person after the accused were apprehended. He has stated that before checking the fire arms and while taking the fire arms from the possession of the accused the same State Vs. Vijay Pal etc., FIR No. 171/06, PS Kanjhawala Page 29 of 62 were taken by naked hands and no gloves etc. were used. According to him no efforts were make to collect the gun powder from the hands of the accused who fired at the police party by taking the hand wash and they stayed at the spot for about 5­6 hours and all written documentation was done while sitting in the official vehicle. Witness has denied the suggestion that no incident as aforesaid had taken place. Witness has also denied the suggestion that all the accused had gone to Madanpur village to meet Sunil Kumari, the mausi of accused Manoj Thakran who is also the sister in law of accused Sudesh @ Chelu from where they were illegally lifted and detained on the night of 24.10.2006 and only to legalize their detention they have all been falsely implicated in the present case by concocting the story of the accused being apprehended from Madanpur Karala road at T point as deposed by him. Witness has further deposed that he was not known to any of the accused previously but some of the members of the police party were knowing the identity of the accused. he am not aware if Surender, Karamvir and Deepak were not involved in any previous criminal case and hence no body in the police party was available about their identity.

(23) PW12 Mahavir Singh has deposed that on 18.12.2006 he was posted as Inspector / SHO at Police Station Sadar Gurgaon and on that day, ASI Jagbir Singh along with his staff were taking Sudesh @ Chhailu, Lal Singh and Nain Singh from Bhondsi Jail to Jaipur for purposes of production in the court. According to him while they were State Vs. Vijay Pal etc., FIR No. 171/06, PS Kanjhawala Page 30 of 62 standing at Rajiv Chowk Gurgaon waiting for the Bus, one Doshiyan Kaushal a local criminal came along with his gang consisting of four other persons on two motorcycles and fired indiscriminately at the police party and targeting the accused thereby killing Sudesh @ Chhailu and Lal Singh and injuring ASI Jagbir Singh. Witness has further deposed that on the statement of ASI Jagbir Singh, he had got registered the FIR bearing No. 1108/2006 Police Station Sadar Gurgaon under Section 148/149/307/302/353 IPC and 25/54/ 59 Arms Act, attested copy of which is Ex.PW12/A. This witness was not cross examined by Ld. Defence counsel, despite opportunity granted.

(24) PW13 Inspector Ponam Chand Vishnoi, has deposed that on 9.9.2006 he was posted as SHO at Police Station Vishwakarma, Jaipur (City) and on that day one constable of their Police Station namely Vikram Singh had been murdered by the accused Sudesh @ Chhaillu and his associates in Vishwakarma Insutrial Area. According to him in this regard, the FIR No. 251/06 under Section 147/148/149/302 IPC and under Section 3/25 Arms Act was registered at Police Station Vishwakarma, Jaipur (City) and the investigations was marked to him and thereafter, he sent request to the Delhi Police for search / arrested of accused Sudesh @ Chhailu and his associates. Witness has further deposed that during investigations, Sudesh @ Chhailu, Manoj Thakran and Vijay Pal @ Lovely were arrested by the officials of Police Station Kanjhawla and on receipt of this information the accused Sudesh @ Chhailu, Manoj State Vs. Vijay Pal etc., FIR No. 171/06, PS Kanjhawala Page 31 of 62 Thakran and Vijay Pal @ Lovely were formally arrested in case FIR No. 251/06. The case FIR No. 251/2006 has now been decided and the accused persons have been convicted. Copy of FIR No. 251/06 is Ex.PW13/A. This witness has not been cross­examined by Ld. Defence counsel, despite opportunity granted.

(25) PW14 HC Surender has deposed that on 25.10.2006 he was posted in Inter­State Cell, Crime Branch, Chanakya Puri, Delhi and on that day he alongwith Inspector Subhash Tandon, HC Rajender, HC Pawan and two other police officials reached at Majri Village, Karala - Madanpur Road, near Water Tank at about 5.45AM and the other two teams lead by Inspector Jitender Kundu and SI Akshay were also present there with crime branch officials. According to him, Inspector Jitender received information from Sub Inspector Ramesh Dass that a wanted criminal in case FIR No. 251/06 of Police station Vishwakarma, Jaipur, Rajasthan were moving around in Delhi area and they were coming to the Karala - Madanpur Road on two motorcycles and Inspector Jitender called all the police officials of their team and briefed about the information and they all took position at the spot with the team headed by Inspector Subhash Tandon and signal to be given to the other teams by switching on the headlight of their vehicle whenever the criminals came there. Witness has further deposed that at about 8.00 AM two motorcycles came from the Mubarakpur area towards their team and Inspector Jitender gave signal to them by switching on the headlights of State Vs. Vijay Pal etc., FIR No. 171/06, PS Kanjhawala Page 32 of 62 his vehicle and thereafter their team put the Gypsy on the way of the motorcycles and the team of SI Akshay Kumar also put their vehicle on the way. According to him there were three persons were sitting on each of the motorcycle and all the criminals ran towards the field area after leaving their motorcycles and thereafter found themselves surrounded by the police party and Inspector Jitender Challenged them to surrender but they took out their fire arms and fired 5­6 rounds upon us but they saved ourselves and they did not receive injuries. Witness has further deposed that they also fired 3­4 rounds in their defence upon the above said persons in their response and thereafter they overpowered the above said six persons and they disclosed their names as Sudesh @ Chhailu, Deepak, Karamveer, Vijay Pal @ Lovely, Surender @ Sonu and Manoj Thakran. He apprehended accused Surender @ Sonu. Witness has further deposed that on the formal search of accused Surender @ Sonu one pistol along with four live cartridges recovered from his possession and Investigating officer SI Akshay prepared the sketch of the pistol, cartridge and magazine vide Ex.PW11/E bearing his signatures at point B and Investigating officer took measurements of the same and mentioned in the sketch and sealed the same in a plastic container with the seal of AK and seized the same vide seizure memo Ex.PW11/F. Witness has further deposed that fire Arms and cartridges were also recovered from the other accused persons and SI Akshay Kumar also conducted proceedings in this regard. Witness has further deposed that State Vs. Vijay Pal etc., FIR No. 171/06, PS Kanjhawala Page 33 of 62 investigating officer SI Akshay prepared the rukka and Ct. Ved Parkash went to the police station for registration of FIR and SI Ramesh Dabas came at the spot being the Investigating officer of the case and SI Akshay handed over all the seized articles and prepared documents and the accused persons to SI Ramesh Dabas for further investigation and SI Ramesh Dabas recorded his statement and also arrested the accused persons. He has identified the accused as well as the articles allegedly recovered in his presence.

(26) In his cross­examination by Ld. Defence counsel, witness has deposed that there were six members in their team, only one was in uniform, others were in civil and he was carrying the official fire arm but he had not fired and almost all other members were also armed with fire arms and Ct. Harender was carrying the fire arm but he cannot tell about others. Insp. Jitneder and ASI Dharamvir had fired from their team but it was not by pointing towards the accused. Witness has admitted that no body was injured in the fire. Witness has admitted that there was traffic on the road when the motorcycles of the accused persons got slipped as it was around 8 AM. Witness has admitted that public persons were moving around the spot and has voluntarily explained that they were on foot. According to him police team did not join public persons in the investigations subsequent to the accused who were apprehended and while taking the fire arm from the possession of the accused, the same were taken by him with his naked hands and no gloves etc were used and State Vs. Vijay Pal etc., FIR No. 171/06, PS Kanjhawala Page 34 of 62 Investigating officer did not pick up the finger prints from the recovered arm in his presence and no efforts were made to collect the gun powder from the hands of the accused who fired at the police party by taking the hand wash. According to him all proceedings relating to the accused were completed at the spot his statement was recorded in the ISC section Chankyapuri and has voluntarily explained that he stayed in the office complex and therefore remained there. Witness has further deposed that he departed from his ISC section on 24.10.2006 at about 6 PM but he does not recollect the DD number and has voluntarily explained that it was a combine entry by all the members of the team. Witness has denied the suggestion that there was no firing on behalf of the accused. Witness has denied the suggestion that even they did not return make any fire. Witness has denied the suggestion that empty cartridge cases were planted at the spot to give a color to the reality to the incident. According to him public persons did not collect on hearing the firing. Witness has denied the suggestion that all the accused had gone to Madanpur village to meet Sunil Kumari, the mausi of accused Manoj Thakran who is also the sister­in­law of accused Sudesh @ Chhailu from where they were illegally lifted and detained on the night of 24.10.2006 and only to legalize their detention they have all been falsely implicated in the present case by concocted the story of the accused being apprehended from Madanpur Karala road at T point as deposed by him. According to him he was not aware if Surender, Karamvir and Deepak were not involved in State Vs. Vijay Pal etc., FIR No. 171/06, PS Kanjhawala Page 35 of 62 any previous criminal case and hence no body in the police party was available about their identity.

(27) PW15 Ct. Yogender Singh has deposed that on 25.10.2006 he was posted in Inter­State Cell, Crime Branch, Chanakya Puri, Delhi and on that day he alongwith SI Akshay Kumar, HC Bijender, Ct. Surender, Ct. Ghanshyam, Ct. Amit Tomar, Ct. Rajdeep were present at the Jal Board, near Water Tank, Karala Village and Inspector Jitender came there alongwith his team and informed them that the gang members of Neetu Gahlot, who had committed the murder in the area of Police station Vishwakarma, Jaipur, were going to Rama Vihar via Karla­ Madanpur­Mubarakpur Road on two motorcycles. According to him the other two teams lead by Inspector Jitender Kundu and SI Subahsh Tandon were also present there with crime branch officials and they all took position at the spot with the team headed by SI Akshay Kumar and signal was to be given to the other teams by switching on the headlight of their vehicle whenever the criminals came there on the motor cycles. Witness has further deposed that at about 8.00AM two motorcycles came from the Mubarakpur area towards the team and Inspector Jitender gave signal to them by switching on headlight of his vehicle and thereafter team of Inspector Subhash Tandon put the Gypsey on the way of the motorcycles and their team of SI Akshay Kumar also put the vehicle Qualis on the way. According to him there were three persons were sitting on each motorcycle and all the criminals ran towards the field area after leaving State Vs. Vijay Pal etc., FIR No. 171/06, PS Kanjhawala Page 36 of 62 their motorcycles after found themselves surrounded by the police party and Inspector Jitender Challenged them to surrender but they took out their fire arms and fired 5­6 rounds upon them but they saved ourselves and they did not receive injuries. Witness has identified the accused persons as well as the articles allegedly recovered in his presence. (28) In his cross­examination by Ld. Defence counsel, witness has deposed that he was in the team comprising of SI Akshay Kumar and their team was in an official Qualis bearing No. DL­1CJ­0517 and the position of their vehicle was 15­20 meters prior to the T point towards village Mazri and the place where the motorcycle of the accused persons had slipped was 15­20 meters ahead from them. According to him, there were eight members in their team, only two were in uniform, others were in civil and he was carrying the official fire arm but he did not fired and no body from his team had fired. Witness has admitted that no body was injured in the fire. Witness has further deposed that the distance between the police party and the accused when they fired was around 20­30 meters and has voluntarily explained that they were running and therefore the distance was not much. Witness has further deposed that the police team made the efforts to join the public persons in the team at the water tank Karala where the teams were constituted but no public person was asked to join the raiding party at the spot where from the accused persons were apprehended and has voluntarily explained that they left after expressing their inability. Witness has further deposed that while taking State Vs. Vijay Pal etc., FIR No. 171/06, PS Kanjhawala Page 37 of 62 the fire arm from the possession of the accused Deepak, the same were taken by him in his naked hands and no gloves etc were used and Investigating officer did not pick up the finger prints from the recovered arm in his presence and no efforts were made to collect the gun powder from the hands of the accused Deepak who fired at the police party by taking the hand wash and the personal search of the accused persons was not carried out. Witness has further deposed that the distance between the place where the motorcycles of the accused were lying and at the place where the accused person were apprehended was 15­20 meters. He has stated that he was not known to any of the accused previously. Witness has denied the suggestion that there is no firing on behalf of the accused. Witness has denied the suggestion that even they did not return make any fire. Witness has denied the suggestion that empty cartridge cases were planted at the spot to give a color to the reality to the incident. According to him, the public persons did not collect on hearing the firing. Witness has denied the suggestion that all the accused had gone to Madanpur village to meet Sunil Kumari, the mausi of accused Manoj Thakran who is also the sister in law of accused Sudesh @ Chhailu from where they were illegally lifted and detained on the night of 24.10.2006 and only to legalize their detention they have all falsely implicated in the present case by concocted the story of the accused being apprehended from Madanpur Karala road at T point as deposed by him. According to him he was not aware if Surender, Karamvir and Deepak were not State Vs. Vijay Pal etc., FIR No. 171/06, PS Kanjhawala Page 38 of 62 involved in any previous criminal case and hence no body in the police party was aware about their identity.

(29) PW16 HC Amit Tomar has deposed that on 24.10.2006 he was posted in Inter­State Cell, Crime Branch, Chanakya Puri, Delhi and they received the information from Jaipur Police that members of the Gahlot Gang moving around in the Outer District Area after committing murder in Jaipur and on that day he alongwith SI Akshay Kumar, HC Bijender, Ct. Surender, Ct. Ghanshyam, Ct. Yogender, Ct. Rajdeep departed from their office at about 10.45PM and reached in the outer Delhi area and on next day on 25.10.2006 at about 6.15 AM they reached at the Jal Board Officer, near Water Tank, Village Karala where Inspector Jitender and Inspector Subhash Tandon met them with their teams there and Inspector Jitender informed them that the gang members of Neetu Gahlot, who had committed the murder in the area of Police station Vishwakarma, Jaipur in case FIR No. 251/06, were going to Rama Vihar via Karla­Madanpur­Mubarakpur Road on two motorcycles i.e. red colour pulsor. Witness has further deposed that they all took position at the spot i.e. Madanpur­Karala Road inside T point with the team headed by SI Akshay Kumar and signal was to be given to the other teams by switching on the headlight of their vehicle whenever the criminals came there on the motor cycles. Witness has further deposed that at about 8.00AM two motorcycles came from the Mubarakpur area towards them and Inspector Jitender gave signal to them by switching on headlight of his vehicle and State Vs. Vijay Pal etc., FIR No. 171/06, PS Kanjhawala Page 39 of 62 thereafter team of Inspector Subhash Tandon put the Gypsey on the way of the motorcycles and their team of SI Akshay Kumar also put the vehicle Qualis on the way. According to him there were three persons sitting on each motorcycle and all were without helmet and all the criminals ran towards the field area after leaving their motorcycles after found themselves surrounded by the police party. Witness has further deposed that Inspector Jitender Challenged them to surrender but they took out their fire arms and fired 6 rounds upon them but they saved themselves and they did not receive injuries and Inspector Jitender and ASI Dharambir also fired 3­4 rounds by their service fire arms in their defence. Witness has further deposed that thereafter they overpowered the above said six persons and they disclosed their names as Sudesh @ Chhailu, Deepak, Karamveer, Vijay Pal @ Lovely, Surender @ Sonu and Manoj Thakran and he apprehended accused Vijay Pal @ Lovely with the help of SI Akshay Kumar and Ct. Surender. Witness has further deposed that on the formal search of accused Vijay Pal @ Lovely, one pistol, four live cartridges were recovered from his possession and he prepared the sketch of the pistol and cartridges with magazine vide memo Ex.PW11/G. He has deposed that Investigating Officer took measurements of the same and mentioned the same in the sketch. According to him, the Investigating Officer sealed the above said articles in a plastic container with the seal of AK and seized the same vide seizure memo Ex.PW11/H. Witness has further deposed that the fire State Vs. Vijay Pal etc., FIR No. 171/06, PS Kanjhawala Page 40 of 62 Arms and cartridges were also recovered from other accused persons and SI Akshay Kumar also conducted proceedings in this regard. Witness has further deposed that investigating officer SI Akshay prepared the rukka and Ct. Ved Parkash went to the police station for registration of the FIR after which SI Ramesh Dabas came at the spot being the Investigating officer of the case and SI Akshay handed over all the seized articles and prepared documents and the accused persons to SI Ramesh Dabas for further investigation. Thereafter, SI Ramesh Dabas recorded his statement and also arrested the accused persons. He has identified the accused persons as well as the articles recovered in his presence. (30) In his cross­examination by Ld. Defence counsel, witness has deposed that he was in the team of SI Akshay Kumar and their team was in an official Qualis bearing No. DL­1CJ­0517 and the position of their vehicle was approximately 50 meters prior to the T point towards village Mazri and the place where the motorcycle of the accused persons had slipped was 10­12 meters ahead from them. According to him there were eight members in their team, only two­three were in uniform, others were in civil. He has stated that he was carrying the official fire arm but he did not fired and no body from his team had fired. Witness has admitted that no body was injured in the fire. Witness has further deposed that he cannot tell the distance between the police party and the accused when they fired and has voluntarily explained that they were running and therefore the distance was not much. Witness has further deposed that State Vs. Vijay Pal etc., FIR No. 171/06, PS Kanjhawala Page 41 of 62 not many persons were moving around at the spot at the time of the incident and no body collected after hearing the voice of firing. He has stated that the police team made efforts to join the public persons in the team at the water tank Karala where the teams were constituted but no public person was asked to join the raiding party at the spot where from the accused persons were apprehended. Witness has further deposed that Police team did not join public persons in the investigations subsequent to the accused who were apprehended and has voluntarily explained that no body came to the spot at that time. Witness has further deposed that the personal search of the accused persons was not carried out and it took a whole day to complete the proceedings at the spot where they stayed till about 5­6 PM. Witness has denied the suggestion that there was no firing on behalf of the accused. Witness has also denied the suggestion that even they did not return make any fire or that empty cartridge cases were planted at the spot to give a color to the reality to the incident. According to him public persons did not collect on hearing the firing. Witness has denied the suggestion that the alleged spot of the incident is a residential area. Witness has denied the suggestion that no incident as aforesaid had taken place. Witness has denied the suggestion that all the accused had gone to Madanpur village to meet Sunil Kumari, the mausi of accused Manoj Thakran who is also the sister in law of accused Sudesh @ Chhailu from where they were illegally lifted and detained on the night of 24.10.2006 and only to legalize their detention they have all falsely State Vs. Vijay Pal etc., FIR No. 171/06, PS Kanjhawala Page 42 of 62 implicated in the present case by concocted the story of the accused being apprehended from Madanpur Karala road at T point as deposed by him. According to him he was not aware if Surender, Karamvir and Deepak were not involved in any previous criminal case and hence no body in the police party was available about their identity.

(31) PW17 HC Ved Prakash has deposed that on 24.10.2006 he was posted in Inter­State Cell, Crime Branch, Chanakya Puri, Delhi and they received the information from Jaipur Police that members of the Gahlot Gang were moving around in the Outer District Area after committing murder in Jaipur and on 24.10.2006 he alongwith Inspector Jitender Kundoo, HC Sanjay, HC Pramod, HC Sunil, Ct./Driver Devender departed from their office at about 10.30PM and reached in the outer Delhi area. Witness has further deposed that on next day on 25.10.2006 at about 6.00AM they reached at the Jal Board Officer, near Water Tank, Village Karala where SI Akshay Kumar and Inspector Subhash Tandon met them with their teams there and Inspector Jitender informed them that the gang members of Neetu Gahlot, who had committed the murder in the area of Police Station Vishwakarma, Jaipur in case FIR No. 251/06, were going to Rama Vihar via Karla­Madanpur­Mubarakpur Road on two motorcycles i.e. red colour pulsor. According to him they all took positions at the spot i.e. Madanpur­Karala Road inside T point with the team headed by Inspector Jitender and signal was to be given to the other teams by switching on the headlight of their vehicle whenever the State Vs. Vijay Pal etc., FIR No. 171/06, PS Kanjhawala Page 43 of 62 criminals came there on the motor cycles. Witness has further deposed that at about 8.00AM two motorcycles came from the Mubarakpur area towards them and Inspector Jitender gave signal to the other team members by switching on headlight of his vehicle and thereafter team of Inspector Subhash Tandon put the Gypsy on the way of the motorcycles and the team of SI Akshay Kumar also put the vehicle Qualis on the way and there were three persons were sitting on each motorcycle. According to him all the criminals ran towards the field area after leaving their motorcycles after found themselves surrounded by the police party and Inspector Jitender Challenged them to surrender but they took out their fire arms and fired 6 rounds upon us but they saved themselves and did not receive any injuries. Witness has further deposed that Inspector Jitender and ASI Dharambir also fired 2 rounds by their service fire arms in their defence and thereafter they overpowered the above said six persons who disclosed their names as Sudesh @ Chhailu, Deepak, Karamveer, Vijay Pal @ Lovely, Surender @ Sonu and Manoj Thakran. He has stated that he had apprehended the accused Manoj. (32) Witness has further deposed that on the formal search of the accused Manoj one pistol of 7.65mm bore along with one live cartridge recovered from his possession and he prepared the sketch of the pistol, cartridge and magazine vide Ex.PW11/C bearing his signatures at point B and Investigating officer took measurement of the same and mentioned the same in the sketch and sealed the same in a plastic container with the State Vs. Vijay Pal etc., FIR No. 171/06, PS Kanjhawala Page 44 of 62 seal of AK and seized the same vide memo Ex.PW11/D bearing his signatures at point B. Witness has further deposed that Fire Arms and cartridges were also recovered from the other accused persons. According to him, SI Akshay Kumar also conducted proceedings in this regard and two fired cartridges of 9mm and one cartridge of 7.65mm recovered from the spot after the firing of accused persons and he handed over the same to the Investigating officer at the spot who kept the same in a match box and sealed the same with the seal of AK and seized same vide seizure memo Ex.PW11/I bearing his signatures at point B. Witness has further deposed that investigating officer SI Akshay prepared the rukka and he took the same to the police station for registration of FIR and after FIR got registered he returned back at the spot and handed over the copy of FIR and original rukka to SI Ramesh Dabas who came to the spot being the Investigating officer of the case and SI Akshay handed over all the seized articles and prepared documents and the accused persons to SI Ramesh Dabas for further investigation and SI Ramesh Dabas recorded his statement and also arrested the accused. He has identified the accused as well as the recovered articles in the court. (33) In his cross­examination by Ld. Defence counsel, witness has deposed that he was in the team of Insp. Jitender and their team was in an official Gypsy bearing No. DL­1CF­7129 and the position of their vehicle was approximately 100 meters prior to the T point towards village Mazri. According to him, the place where the motorcycle of the accused State Vs. Vijay Pal etc., FIR No. 171/06, PS Kanjhawala Page 45 of 62 persons had slipped was 50 meters ahead from them and there were six members in their team of which only one was in uniform whereas others were in civil. He has stated that he was not carrying any fire arm and from their team only Insp. Jitender had fired and ASI Dharamvir from other team had fired. Witness has further deposed that not many persons were moving around at the spot at the time of the incident and nobody collected after hearing the voice of firing and the police team made the efforts to join the public persons in the team at the water tank Karala where the teams were constituted but no public person was asked to join the raiding party at the spot where from the accused persons were apprehended and has voluntarily added that they left after expressing their inability. Witness has further deposed that Police team did not join public persons in the investigations subsequent to the accused who were apprehended and while taking the fire arm from the possession of the accused Manoj, the same were taken by him in his naked hands and no gloves etc. were used. He has deposed that the Investigating Officer did not pick up the finger prints from the recovered firearm in his presence. Witness has further deposed that no efforts were made to collect the gun powder from the hands of the accused Manoj who fired at the police party by taking the hand wash. He has deposed that the accused were personally searched but the Investigating Officer did not offer his search prior to their search and it took whole day to complete the proceedings at the spot. He has further stated that they stayed at the spot till about State Vs. Vijay Pal etc., FIR No. 171/06, PS Kanjhawala Page 46 of 62 5­5:30 PM and has voluntarily explained that in between he had taken the tehrir to the Police Station and then returned to the spot. Witness has further deposed that he departed from his ISC section on 24.10.2006 at about 10:30 PM vide DD No. 10 and has voluntarily explained that it was a combine entry by all the members of their team. Witness has further deposed that the distance between the place where the motorcycles of the accused were lying and at the place where the accused person were apprehended was about 50 meters and he was not known to any of the accused previously. Witness has denied the suggestion that there was no firing on behalf of the accused. Witness has denied the suggestion that even they did not return make any fire. Witness has admitted that none had received injuries in the alleged incident. Witness has denied the suggestion that no incident as aforesaid had taken place and has also denied that all the accused had gone to Madanpur village to meet Sunil Kumari, the mausi of accused Manoj Thakran who is also the sister in law of accused Sudesh @ Chhailu from where they were illegally lifted and detained on the night of 24.10.2006 and only to legalize their detention they have all been falsely implicated in the present case by concocted the story of the accused being apprehended from Madanpur Karala road at T­point as deposed by him.

(34) PW18 SI Ramesh Dabas has deposed that on 25.10.2006 he was posted at Inter State Cell, Crime Branch, Chanakya Puri, Delhi and their team was working on the information received from the Jaipur State Vs. Vijay Pal etc., FIR No. 171/06, PS Kanjhawala Page 47 of 62 Police about the criminals involved in case FIR No. 251/06, Police station Vishwakarma, Jaipur and at about 5.45AM he received a secret information that the members of gang of Neetu Gahlot were going to the Rama Vihar on two motorcycles of red colour pulsar via Village Madanpur and via Village Mubarakpur and they were having large quantity of fire arm with them and they were involved in the above said case FIR No. 251/06. According to him, he informed the senior police officials about the information thereafter he gave the information to Inspector Jitender Kundu for further action and he also recorded DD No. 2 in this regard. Witness has further deposed that on the same day at about 11.00AM he went to the spot on the directions of the senior officers for the investigation of the case and he made DD No. 5 in this regard and he reached at the spot i.e. Majri­Mubarakpur Road, Rama Vihar Mor, near High Tension Wire where the team members of Inspector Jitender Kundu, Inspector Subhash Tandon and SI Akshay Kumar were already present and SI Akshay Kumar handed over all the prepared documents to him alongwith seized articles and also produced the accused Vijay Pal, Karamvir, Deepak, Manoj, Surender and Sudesh before him and he prepared the site plan at the instance of SI Akshay Kumar which is Ex.PW18/A. Witness has further deposed that meanwhile, Ct. Ved Prakash reached at the spot and handed over to him the copy of FIR and original rukka and he mentioned the FIR number on all the documents and he seized the motorcycle bearing no. HR 26 D0 488 pulsur of red State Vs. Vijay Pal etc., FIR No. 171/06, PS Kanjhawala Page 48 of 62 colour vide Ex.PW18/B and he also seized the motorcycle bearing no. HR 26 AD 3969 pulsur of red colour vide Ex.PW18/C. Witness has further deposed that he interrogated the accused Sudesh, Vijay Pal, Karamvir, Deepak and Surender and arrested Deepak, Manoj, Vijaypal, Sudesh, Karambir and Surender vide memos Ex.PW18/D­1 to Ex.PW18/D­6. Witness has further deposed that the personal search of accused Sudesh Kumar, Manoj Thakran, Vijay Pal, Surender, Karamvir and Deepak were taken vide Ex.PW18/E­1 to Ex.PW18/E­6 and the disclosure statement of accused Sudesh Kumar, Vijay Pal, Manoj Kumar, Karambir, Deepak and Surender were recorded vide Ex.PW18/F­1 to Ex.PW18/F­6. Witness has further deposed that on 30.10.2011 exhibits of this case were sent to FSL Rohini, Delhi and he obtained the complaint U/s 195 Cr. P. C. which is Ex.PW6/A and he collected the FSL result which is Ex.PW10/A. Witness has further deposed that he obtained the Sanction U/s 39 of Arms Act from the DCP which is Ex.PW18/G. Witness has further deposed that during his investigations the accused Sudesh @ Chhailu had expired in the case FIR No. 11/2008, Police Station Sadar Gurgaon and he recorded statement of witness and after completion of investigations he filed charge sheet against the accused Vijay Pal, Karamvir, Deepak Kumar, Manoj Thakran and Surender. (35) In his cross­examination by the Ld. Defence counsel witness has admitted that none of the accused were apprehended in his presence State Vs. Vijay Pal etc., FIR No. 171/06, PS Kanjhawala Page 49 of 62 nor the incident took place in his presence. He has stated that he reached at spot at about 1.25 PM and remained there till 5.30 PM and he had prepared all the documents relating to the accused at the spot and recorded statement of witness in the office. According to him when the firearms were handed over to him, they were sealed and therefore he cannot tell their condition. Witness has admitted that that he did not produced the fire arms before the DCP while obtaining the sanction u/s 39 of Arms Act. Witness has denied the suggestion that he obtained the sanction U/s 39 of Arms Act from the DCP in a routine manner and he gave the same without any application of mind on his asking. Witness has also denied the suggestion that the report of the Ballistic Experts has been obtained by him by influencing the FSL Experts which report had been given on his asking. Witness has denied the suggestion that no incident had taken place or that all the accused had gone to Madanpur village to meet Sunil Kumari, the mausi of accused Manoj Thakran who is also the sister in law of accused Sudesh @ Chhailu from where they were illegally lifted and detained on the night of 24.10.2006 and only to legalize their detention they have all falsely implicated in the present case by concocted the story of the accused being apprehended from Madanpur Karala Road at T­point as deposed by him. Witness has denied that he did not conducted the investigation of this case in a fair manner or that he have filed a false charge sheet against the accused persons on the instructions of the senior officer after concocting the entire incident. State Vs. Vijay Pal etc., FIR No. 171/06, PS Kanjhawala Page 50 of 62 STATEMENT OF THE ACCUSED / DEFENCE EVIDENCE:

(36) After completion of prosecution evidence the statements of the accused persons were recorded under Section 313 Cr.P.C. wherein all the incriminating evidence were put to them which they have denied. (37) According to the accused Vijay Pal @ Lovely he is innocent and has been falsely implicated. He has stated that no such incident as alleged had taken placed. He has further stated that he was lifted by the police from Gurgaon Bus Stand and brought to Delhi by the Delhi Police and falsely implicated in this case. According to him, nothing was recovered from his possession or at his instance and the alleged recovery had been planted upon him by the police to falsely implicate him. (38) According to the accused Deepak Kumar he is innocent and has been falsely implicated and that no such incident as alleged has taken placed. He has stated that at the time of alleged incident he was studying at DAV College, NIT Faridabad and had come to Delhi to visit and was present at India Gate, Delhi when some police officials called him inside the police van and they took him to their office and falsely implicated in the present case. He has stated that nothing was recovered from his possession or at his instance. According to him, the alleged recovery has been planted upon him by the police to falsely implicate him. (39) According to the accused Manoj Thakran he is innocent and has been falsely implicated and that no such incident as alleged has taken place. He has stated that he was going to the house of his Mausi at State Vs. Vijay Pal etc., FIR No. 171/06, PS Kanjhawala Page 51 of 62 Madanpur, Karala, Delhi, when some persons in civil clothes came in Skoda car and they forcibly took him with them in the said car after putting a cloth on his face and thereafter they took him in a office and thereafter they falsely implicated him in this case.

(40) According to the accused Surender @ Sonu he is innocent and has been falsely implicated and that no such incident as alleged has taken placed. He has stated that at the time of alleged incident he was doing job in private company i.e. Lakhani Shoes Company at Faridabad and had come to Delhi to visit and was present at India Gate, Delhi along with his friend Deepak when some police officials called them inside the police van and they took them to their office and falsely implicated in the present case. According to him, nothing was recovered at his instance or from his possession and that the alleged recovery has been planted upon him by the police.

FINDINGS:

(41) I have heard the arguments advanced before me by the Ld. Addl. PP for the State and the Ld. Defence Counsel. I have also gone through the written memorandum of arguments filed by the parties and the evidence on record. My findings are as under.

(42) The case of the prosecution is that on 25.10.2006 at 8:00 AM, in the fields near the high tension wire pole Rama Vihar crossing, Mubarakpur Mazra Road, Delhi, the accused persons namely Vijay Pal, State Vs. Vijay Pal etc., FIR No. 171/06, PS Kanjhawala Page 52 of 62 Surender, Deepak, Karambir Thakran (since PO) and Manoj Thakran, in furtherance of their common intention, alleged to have obstructed the police officials namely Inspector Jitender, SI Akshay Kumar, ASI Dharambir, Ct. Sunil, Ct. Amit Tomar, Ct. Ved Parkash, Ct. Yogender, Ct.

Ishwar Singh and Ct. Surender, in discharge of their official duties being public servants. It is also alleged that at the time of incident, all the accused persons in furtherance of a common intention had used criminal force against the above police officials who were discharging their official duties with such intention and knowledge and under such circumstances that if by their act they would have caused death of any of these police officials, they (accused) would have been guilty for murder. It is further alleged that at the time of incident the accused Surender @ Sonu was found in possession of country made pistol along with one live cartridge; accused Karambir was found in possession of one desi katta having one fired cartridge in the chamber; accused Vijay Pal was found in possession of one country made pistol having one live cartridge in the chamber and three live cartridges in the magazine of the pistol; accused Manoj Thakran was found in possession of one country made pistol and one live cartridge in its chamber and the accused Deepak was also found in possession of one country made pistol and two live cartridges, which possession of arms and ammunition was without license and used against the police officials.

State Vs. Vijay Pal etc., FIR No. 171/06, PS Kanjhawala Page 53 of 62 (43) The prosecution has examined as many as eighteen witnesses who are all police officials, except K. C. Varshney who is the FSL expert. The story as alleged by the prosecution is that on 25.10.2006 Inspector Jitender Kundu received a phone call on his mobile phone from his office at Chanakyapuri that the members of Neetu Gahlot Gang who were involved in a case FIR No. 251/06 PS Vishkarma, Jaipur, Rajasthan would come towards Rama Vihar via Mubarakpur and Madanpur, Delhi on two motorcycles bearing registration Nos. HR­26­AD­0488 and HR­26­ AD­3969 and would also be carrying arms and ammunition in their possession and if a raid is conducted they could be apprehended. Insp. Jitender Kumar briefed the said information to the police team and also telephonically asked Insp. Subhash Tandon and SI Akshay Kumar of the Crime Branch to reach at the spot near the water tank with staff after which Inspector Jitender Kundu asked 4 to 5 passerbyes to join the raiding party but none agreed on which without wasting any time, they reached Mubarakpur village Majri Road. Thereafter all the police officials were divided into three teams and one team was formed under the supervision of Insp. Jitender Kundu, second team was formed under the supervision of Insp. Subhash Tandon, third team was formed under the supervision of SI Akshay Kumar and all the three teams were told to gave signal to other team by switching on the headlight of the gypsy and Qualis as and when any of the above mentioned motorcycle passes in front of them. Thereafter, all the three teams took position in various State Vs. Vijay Pal etc., FIR No. 171/06, PS Kanjhawala Page 54 of 62 directions at the spot. At about 8:00 AM two motorcycles came from Mubarakpur side. Three persons were sitting on the motorcycles (i.e. two in one and one in another) and when both the motorcycles passes in front of their team they gave signal to other team of police officials by switching on the headlight of the gypsy and the other two teams got alerted and the the team led by SI Akshay Kumar and Insp. Subhash Tandon blocked the road going towards Rama Vihar and Majri side by parking the gypsy and qualis on the road and the driver of the one motorcycle tried to take U turn after seeing the police teams present on the road and in the meantime second team blocked the road going towards Mubarkpur side and surrounded the accused persons. In the meantime all the six persons tried to ran away towards fields after leaving the motorcycles at the spot on which the police teams warned the accused persons not to escape and surrender themselves before the police along with their arms and ammunitions but all the accused persons who were carrying weapons in their hands fired towards police party. It is further alleged that thereafter the members of the police teams managed to over power all the accused persons. The accused Surender @ Sonu was found in possession of a country made pistol along with one live cartridge; accused Karambir was found in possession of one desi katta having one fired cartridge in the chamber; accused Vijay Pal was found in possession of one country made pistol having one live cartridge in the chamber and three live cartridges in the magazine of the pistol; accused Manoj State Vs. Vijay Pal etc., FIR No. 171/06, PS Kanjhawala Page 55 of 62 Thakran was found in possession of one country made pistol and one live cartridge in its chamber and the accused Deepak was also found in possession of one country made pistol and two live cartridges and all without any valid license. Thereafter, a rukka Ex.PW10/B was prepared and after registration of the FIR the accused persons were arrested, sketches and seizure memos of the recovered weapons / articles were prepared. During investigations, a complaint under Section 195 Cr.PC was prepared and made by Dr. Joy Tirky (PW6) which was also filed in the court. Various arms and ammunition was sent to the FSL Ballistic Department and report Ex.PW10/A was filed by Sh. K. C. Varhsney (PW10).

(44) Addl. PP for the State has pointed out that in the light of the above evidence which has come on record, the prosecution has proved its charges against the accused persons.

(45) Ld. Defence Counsel on the other hand has highlighted various discrepancies in the testimonies of various witnesses and has challenged the probability of the incident having taken place. He has vehemently argued that the accused were lifted from the house of one of the relatives after which they were illegally detained and then falsely implicated in this concocted story regarding this incident. (46) After having considered the rival contentions and detail testimonies of the various witnesses. At the very Outset I may observe that all the witnesses examined by the prosecution are the police officials. State Vs. Vijay Pal etc., FIR No. 171/06, PS Kanjhawala Page 56 of 62 The alleged incident had taken place in the morning hours i.e. around 8:00 AM in the month of October when there is supposed to be sufficient light and traffic on the roads. It is apparent from the site plan Ex.PW18/A that the spot of incident is adjoining residential colonies i.e. Nihal Vihar, Surat Vihar and Rama Vihar. Further, there is also a Temple near the spot. Hence, the secret information having been received at 6:00 AM, there was sufficient opportunity for Inspector Jitender Kumar to have joined the public persons from the neighbouring area particularly from the residential area and the temple, in respect of which no attempt is shown to have been made whatsoever.

(47) Secondly there are material contradictions in the testimonies of various police witnesses. According to the prosecution version, on the one ASI Dharambir and Inspector Jitender were the only persons who had fired from their service revolvers (Inspector Jitender in his testimony has stated that he and ASI Dharambir fired two rounds from their service revolvers in the air whereas ASI Dharambir deposed that he and Inspector Jitender warned those persons and fired upon them by their service revolvers) whereas on the other hand Inspector Akshay Kumar has in his testimony stated they had fired three to four rounds in their defence upon the accused persons and his testimony finds due corroboration from the version given by the other members of the police party i.e. HC Surender (PW14), Ct. Yogender Singh (PW15) and HC Amit Tomar (PW16). In this background, there is material contradiction on the number of rounds State Vs. Vijay Pal etc., FIR No. 171/06, PS Kanjhawala Page 57 of 62 which were fired. This aspect is material because only two empty cartridges were handed over to the IO as alleged to have been fired. If there were more than two rounds which were fired then number of empty cartridges cases should have been more, which is not the case. (48) Thirdly it is also alleged that the accused persons also fired number of rounds upon the police party. Surprisingly neither any of the accused sustained injuries nor a single police official or public person received any injury in the shoot out which allegedly took place in the early morning hours.

(49) Fourthly it is also evident that despite so many rounds being fired, it is also strange that no public person is reported to have stopped or came to the spot (the road being a motorable road) to inquire about the incident. Even after the incident when the accused were allegedly apprehended, no efforts were made to join any public witness at the time when the fire arms were allegedly recovered from the accused persons and checked by the police officials.

(50) Fifthly again there are material contradiction in the testimonies of various members of the police party since PW11 in his testimony has stated that the fire arms were recovered from the accused Surender, Deepak, Manoj, Vijay and Karambir on their formal search, which contradicts the prosecution version and the story put forward by Inspector Jitender Kumar and other police officials that these accused were running with fire arms in their hands and in that process the other State Vs. Vijay Pal etc., FIR No. 171/06, PS Kanjhawala Page 58 of 62 fire arms were snatched by the respective police officials. This material contradiction tends to defeat the case put forward by the prosecution. (51) Sixthly it is also the case of the prosecution that the accused ran in different directions. The site plan placed on record by the prosecution and relied upon by them shows that the accused persons ran only in west direction which is contrary to the claims made by these police officials. Even otherwise, if we consider the statement of Inspector Jitender who was heading one of the team, he states that he parked the vehicle on the road and motorcycle of the accused were coming from opposite side on which he gave signal to the other team by putting his headlight on, which shows that the accused were in fact coming from the directions opposite to that of Inspector Jitender and would have passed his vehicle, if this was the case, then under the given circumstances, it was not possible that the said accused could have been stopped by the other two police teams since they would had to take a U­Turn of their motorcycle for reaching other two teams, which is not the case. If the version of Inspector Jitender is to be believed then it was the accused who first passed the first police team and then approached in their direction, which is contrary to the version given by the prosecution. (52) Lastly it is also the case of the witnesses that after an attempt was made to stop these accused persons, they tried to run and in that process their motorcycles slipped on the road and thereafter they left the motorcycles and ran towards empty fields and I am sure if that would State Vs. Vijay Pal etc., FIR No. 171/06, PS Kanjhawala Page 59 of 62 have happened, skid marks of the motorcycle would have been present on the road and collateral damage to both the motorcycles could have been caused for which the mechanical examination of these motorcycles was necessary to prove this fact, which has not been done. Further, neither the photographs showing the skid marks on the road nor the mechanical inspection report of the motorcycles to prove this fact have been placed before the court to prove and substantiate this aspect. (53) This being the background, serious doubt is raised with regard to the correctness of the claims made by the witnesses (who are all police officials) as regards the prosecution version and whose testimonies do not find corroboration from any other source which includes circumstantial evidence. The probability and genuineness of the incident having taken place at the given time i.e. at 8:00 AM and at the given spot i.e. heavily motorable road with heavy traffic where there is bound to be availability of public persons, appears to be remote and hence I hold that all these allegations have not been proved beyond reasonable doubt and does not appear probable to the judicial mind.

(54) Further, the case of the prosecution that the accused persons had fired at the police party, has also not been proved beyond reasonable doubt. If the accused were apprehended with the fire arms in their hands and had fired upon the police party a alleged by all the police witnesses, I am sure the IO would have collected the gun powder from the hands of the accused persons which was very important and has not been done. State Vs. Vijay Pal etc., FIR No. 171/06, PS Kanjhawala Page 60 of 62 (55) It is also evident that while on the one hand Inspector Aakshay Kumar states that the fire arm had been recovered from the formal search of the accused, the other police witnesses alleged that they were taken from the hands of the accused persons who were carrying them. The material witnesses of the prosecution have contradicted each other on these aspects so much so when Inspector Akshay Kumar was asked if before carrying formal search of the accused persons, the members of police parities who have searched them offered their own search, he refused that no such search was offered. This being the background, I hold that the recovery of the fire arms from the accused persons also has not been proved beyond reasonable doubt. (56) In view of my above discussions, I hereby hold that the prosecution has not been able to conclusively prove and establish beyond reasonable doubt that on 25.10.2006 at 8:00 AM, in the fields near high tension wire pole Rama Vihar crossing, Mubarakpur Mazra Road, Delhi, the accused persons namely Vijay Pal, Surender, Deepak, Karambir Thakran (since PO) and Manoj Thakran who were all having fire arms and in furtherance of their common intention, obstructed, used criminal force and also fired upon the police officials namely Inspector Jitender, SI Akshay Kumar, ASI Dharambir, Ct. Sunil, Ct. Amit Tomar, Ct. Ved Parkash, Ct. Yogender, C.t Ishwar Singh and Ct. Surender, in discharge of their official duties being public servants. The prosecution has also failed to prove and establish beyond doubt that at the time of incident, the State Vs. Vijay Pal etc., FIR No. 171/06, PS Kanjhawala Page 61 of 62 accused Surender @ Sonu, Karambir, Vijay Pal Manoj Thakran and Deepak were found in possession of arms and ammunitions or used the same during the incident.

(57) In view of the above, the accused Vijay Pal, Surender, Deepak and Manoj Thakran are hereby acquitted of the charges under Sections 307/353/186/34 Indian Penal Code and also of charges under Section 25/27/54/59 Arms Act.

(58) File be consigned to Record Room to be taken up on arrest of accused PO / Karambir Thakran.

Announced in the open court                                (Dr. KAMINI LAU)
Dated: 05.12.2013                                         ASJ­II(NW)/ ROHINI




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