Delhi District Court
State vs . on 3 June, 2010
1
IN THE COURT OF SURINDER KUMAR SHARMA
ADDITIONAL SESSIONS JUDGE - NORTH EAST
KARKARDOOMA COURTS:DELHI
State
Vs.
1. Shamshad
S/o Sh. Ahsan
R/o H. No. 26, Indra Chowk,
Purva Japta Khan, Khatuli,
Meerut, U.P.
2. Ankit @ Manoj
S/o Karan Singh
R/o Vill. Mohamadpur,
P.S. Bhasooma,
Meerut, U.P. ( Since Expired )
3. Vishnu
S/o Mangte Ram
R/o Vill. Putthi,
P.S. Parikshit Garh,
Meerut, U.P
FIR No. 434/04
P.S. : Nand Nagri
U/s : 307/186/353/34 IPC &
U/s 25 & 27 Arms Act.
Sessions Case No. : 72/2008
Sessions Case Nos. 72/08, 81/08 & 82/08 Page 1 /21
2
Date of Institution of the case : 05.11.04
AND
FIR No. 435/04
P.S. : Nand Nagri
U/s : 25 Arms Act.
Sessions Case No. : 81/2008
Date of Institution of the case : 19.12.05
AND
FIR No. 437/04
P.S. : Nand Nagri
U/s : 25 Arms Act.
Sessions Case No. : 82/2008
Date of Institution of the case : 19.12.05
Date on which reserved for Judgment : 26.5.2010
Date of Judgment : 03.06.2010
JUDGMENT:
The case of the prosecution in brief that on 13.07.2004 S.I. Kailash Chand Yadav received a secret information that some criminals would come to Delhi from Ghaziabad through Sewa Dham Marg along with stolen car. Thereafter, S.I. Kailash along with Constable Mahesh, Constable Vijay, Constable Tejbeer reached near Pepsi Godown, Nursery Millan Garden, Sewa Dham Sessions Case Nos. 72/08, 81/08 & 82/08 Page 2 /21 3 Road and did nakabandi with the help of barricade and started checking the vehicles which were coming from Tola Gaon (U.P) side. At about 9.20 p.m. a Maruti car bearing No. DL-3C E-2771 came there and it was stopped. The driver of the said vehicle was asked to produce the papers. In the meantime, one Esteem car bearing No. DL-2CB-3655 came from behind and stopped at a distance of 15-20 yards from the said Maruti car. Suddenly a person alighted from the said car and fired on the police party. Both the vehicles tried to sped away, then Constable Mahesh immediately pushed the barricade in front of the vehicles and stopped the same and over powered the driver of Maruti car namely Manoj. The driver of Esteem car namely Vishnu was over powered by Constable Vijay. Accused Shamshad was over powered by S.I. Kailash and Constable Tejbeer while he was loading the country made pistol. The remaining two persons whose names came to be known later on as Noor Mohd. and Arif ran away from the Esteem Car. From the search of Manoj a country made pistol of .315 bore and two live cartridges were recovered. One loaded country made pistol of 12 bore and one live cartridge was recovered from the possession of Vishnu. One country made pistol of .315 bore, one fired cartridge and two live cartridge was Sessions Case Nos. 72/08, 81/08 & 82/08 Page 3 /21 4 recovered from the possession of Shamshad, who has fired upon the police party. The Maruti 800 car which was having number plate bearing No. DL-3CE-2771 was a stolen one from the area of police station Prashant Vihar. Manoj, Shamshad and Vishnu obstructed the police officials while they were discharging their official duty and fired upon the police party with the intention to kill.
On this rukka was prepared by SI Kailash Chand the present FIR bearing No. 434/04 was registered at Police Station Nand Nagri. After registration of the case, the investigation was handed over to SI Hari Singh. The investigation was carried out. All the three accused persons namely Shamshad, Vishnu and Ankit @ Manoj ( now dead ) were arrested by SI Hari Singh in this case. Accused Noor Mohd. and Arif could not be arrested due to their incomplete addresses. After completion of investigation, challan was filed in the court against accused persons for the offences punishable U/s 307/186/353/34 IPC & U/s 25 & 27 Arms Act.
The Ld. M.M. after supply of copies etc. committed the case to the court of Sessions.
Vide order dated 13.7.2004, my Ld. Predecessor framed a charge for offences punishable under section Sessions Case Nos. 72/08, 81/08 & 82/08 Page 4 /21 5 186/353/307/34 IPC against all the three accused persons to which they pleaded not guilty and claimed trial.
As discussed above, one country made pistol with two live cartridges were recovered from the possession of accused Vishnu. Constable Vijay Kumar made his statement to HC Suresh Chand, on which he prepared rukka and got the case registered at Police Station Nand Nagar vide FIR No.435/2004 U/s 25 Arms Act against the accused Vishnu. After completion of investigation, challan was filed in the court against accused the accused for the offences punishable U/s 25 of Arms Act.
The Ld. M.M. after supply of copies etc. committed the case to the court of Sessions.
Vide order dated 18.3.2006, my Ld. Predecessor framed a charge for offences punishable under section 25 Arms Act 1959 against accused Vishnu to which he pleaded not guilty and claimed trial.
As discussed above, one country made pistol with three live cartridges and one empty cartridge were recovered from the possession of accused Shamshad. S.I. Kailash Yadav made his statement to ASI Chet Ram, on which he prepared rukka and got the case registered at Police Station Nand Nagar vide FIR No.437/2004 U/s 25 Arms Act against the accused Shamshad.
Sessions Case Nos. 72/08, 81/08 & 82/08 Page 5 /21 6The Ld. M.M. after supply of copies etc. committed the case to the court of Sessions.
Vide order dated 18.3.2006, my Ld. Predecessor framed a charge for offences punishable under section 25 Arms Act 1959 against the accused Shamshad to which he pleaded not guilty and claimed trial.
Vide order dated 18.3.2006 my Ld. Predecessor consolidated the connected cases bearing FIR No. 435/04 and 437/04 of P.S. Nand Nagri with the case bearing FIR No. 434/04 P.S. Nand Nagri for all purposes & ordered that evidence shall be recorded in the case FIR 434/04. However, the evidence was recorded separately by my Ld. Predecessor.
During the trial the accused Ankit @ Manoj was killed in an encounter with Delhi Police on 6.5.2006.
In support of its case bearing FIR No. 434/04, the prosecution examined 8 witnesses out of them, PW-4 Constable Mahesh Pal, PW-5 Constable Tejbir Singh, & PW-8 Head Constable Vijay Kumar are the material witnesses being the members of the raiding party, who apprehended the accused persons along with the illegal weapons. All of them have supported the case of the prosecution on all the material points and Sessions Case Nos. 72/08, 81/08 & 82/08 Page 6 /21 7 corroborated each other on the material points.
PW-5 is Constable Tejbir Singh. He deposed that on 13.7.2004 he was posted at Police Post Harsh Vihar of Police Station Nand Nagri. On that day, at about 8.10 p.m. S.I. Kailash Chand Yadav informed him regarding a secaret information about the theft of a vehicle, which was received to him. In pursuance of this information, he along with SI Kailash Chand, Constable Mahesh & Constable Vijay, reached near Pepsi Godown, Sewa Dham Road, Delhi. They put barricade on the road and started checking the vehicles at about 8.30 p.m. At about 9.20 p.m., one Maruti car No. DL-3C-E-2771 came from the side of U.P. was stopped. He further stated that the driver of the said car was asked to show registration papers. He asked time for showing the papers. In the meantime, another vehicle Maruti Esteem bearing No.3655 came from the side of U.P. The vehicle stopped at about 10-15 steps away from their position. Accused Shamshad alighted from the vehicle and fired a shot, aiming police party, but they escaped unhurt. Thereafter both the vehicles tried to slip from the spot.
PW-5 Ct. Tejbir Singh further stated that Constable Mahesh put barricade ahead of the vehicles and the driver of first vehicle was over powered by Ct. Mahesh, whose name was Sessions Case Nos. 72/08, 81/08 & 82/08 Page 7 /21 8 revealed Maonj. The second vehicle was driven by accused Vishnu and he was over powered. Accused Shamshad was over powered by him and S.I. Kailash. Two persons were also seated in Esteem Maruti Car on the rear seal and they managed to escape and their names were revealed as Arif and Noor Mohd.
PW-5 Constable Tejbir Singh has further stated that one loaded country made pistol of and two live cartridges found from the possession of Manoj. Accused Vishu was found in possession of one loaded country made pistol and one live cartridge. Accused Shamshad was found in possession of one country made pistol, one cartridge case and two live cartridges. Accused Shamshad was reloading country made pistol and in this process fired cartridge case was found in his possession.
PW-5 Tejbir Singh further stated that proceedings in respect of arms recovered from the possession of accused Vishnu was conducted by HC Suresh, proceedings in respect of arms recovered from the possession of accused Shamshad was conducted by ASI Chet Ram. However he had not signed any document. SI Kailash Chand prepared a rukka in respect of firing on police party and was given to him for registration of case. After getting the case registered, he came back at the spot and handed Sessions Case Nos. 72/08, 81/08 & 82/08 Page 8 /21 9 over the copy of FIR and original rukka to SI Hari Singh. Both the vehicles were taken into possession vide memo Ex. PW-5/A and Ex. PW-5/B. The Investigating Officers prepared the sketch of recovered arms and were taken into possession by the them. He identified the country made pistol as Ex.P-1 and cartridge cases as Ex. P-2 to P-2/4 which was recovered from the accused Shamshad.
PW-6 S.I. Hari Singh is the Investigating Officer of the case. He deposed that on 13.7.2004, while he was posted at Police Post Harsh Vihar and was present at Philips India Godown Sewa Dham, Constable Dhanveer handed over him a copy of DD No. 29 (Ex.PW-3/B) and accordingly, he reached near Pepsi Godown, Sewa Dham road near Milan Garden. where S.I. Kailash Chand , Ct. Vijay, Ct. Mahesh, Ct.Tejbir and three accused persons namely Shamshad, Ankit @ Manoj and Vishnu were found present. One Maruti car bearing No. DL-3C-E-2771 and another Maruti Esteem bearing No. 3655 were found. In his presence, Constable Tejbir was sent to Police Station with rukka by SI Kailash Chand for registration of the case. ASI Chet Ram, HC Naresh and HC Suresh reached at the spot and SI Kailash Chand narrated facts of the case to him. Ct. Tejbir reached at the spot with carbon copy of FIR and rukka and further investigation of this case Sessions Case Nos. 72/08, 81/08 & 82/08 Page 9 /21 10 was assigned to him. During investigation, he prepared site plan of the spot which is Ex. PW-6/A at the instance of SI Kailash Chand, seized both the cars arrested the accused persons, recorded statements of witnesses. A He further stated that a complaint U/s 195 Cr.P.C. was lodged by ACP Sanjeev Kumar Yadav, when he presented the facts before him. He placed the complaint on record.
PW-1 is ASI Brij Lal was duty officer. He deposed that on 13.07.2004 on receipt of rukka from Constable Tejbir, which was sent by SI Kailash, he recorded the FIR, the copy of the same is Ex. PW-1/A. The investigation was assigned to SI Hari Singh.
PW-2 is Constable Dhanbir Singh. He deposed that on 13.7.2004 while he was posted at Police Post Harsh Vihar, on receipt of copy of DD No. 29 from DD Writer, he handed over the copy of DD No. 29 to SI Hari Singh, who proceeded to Milan Garden.
PW-3 H.C. Chote Lal has deposed that on 13.7.2004, while he was working as Roznamcha Munshi at P.P. Harsh Vihar of P.S. Nand Nagri, he made departure entry of SI Kailash Chand,Ct. Mahesh Chad, Ct. Tejbir and Ct. Vijay for Sewa Dhama Road vide DD No. 27, copy of which is Ex. PW-3/A. On the same Sessions Case Nos. 72/08, 81/08 & 82/08 Page 10 /21 11 day, he also recorded DD No. 29 at 9.40 p.m., true copy of the same is Ex. PW-3/B. PW-7 is Khem Chand, who took the car on superdari after executing superdagi bond Ex. PW-7/A. In support of its case bearing FIR No. 435/04, the prosecution examined two witnesses.
PW-1 is ASI Brij Lal was duty officer. He deposed that on 13.07.2004 on receipt of rukka from Constable Vijay Kumar which was sent by HC Suresh, he recorded the FIR bearing No. 435/04 U/s 25 Arms Act, the copy of the same is Ex. PW-1/A. The investigation was assigned to SI Hari Singh.
PW-2 is Constable Manoj Kumar. He deposed that on 26.9.2004 while he was posted at Police Station Nand Nagri, he had taken one parcel from the malkhana vide RC No. 611/21 for depositing the same at CFSL Chandigarh in a sealed condition and he deposited the said parcel at CFSL Chandigarh on 27.9.2004 in intact condition. So long the case property remained in his custody, nobody tampered with it.
In support of its case bearing FIR No. 437/04, the prosecution examined six witnesses out of them, PW-5 S.I. Kailash Chand Yadav is the material witness being the member of Sessions Case Nos. 72/08, 81/08 & 82/08 Page 11 /21 12 the raiding party, who apprehended the accused Shamshand along with his two co-accused Vishnu and Ankit @ Manoj with the illegal weapons.
PW-5 SI Kailash Chand has stated that on 13.07.2004, he was posted at Police Post Harsh Vihar of Police Station Nand Nagri. On that day, at about 8.10 p.m. he received a secret information in the Police Post that some criminals were approaching Tilla Village via Sewa Dham Road in a stolen vehicle No. DL-3C-E-2771 white colour Maruti. He recorded this information vide DD No. 27. He along with Constable Mahesh, Ct. Tejbir & Constable Vijay, reached near Pepsi Godown, Sewa Dham Road. They put barricade on the road and started checking the vehicles coming from the side of Tilla Village. At 9.20 p.m., he noticed Maruti car as informed and he stopped the vehicle. He asked for the documents of the vehicle from the driver, who told him that he will show the documents soon. He further stated that one other vehicle bearing No. DL-2C-B-3655 reached at the spot and stopped at a distance of 10-15 steps and in the said vehicle a person was sitting by the side of driver. He fired a shot aiming police party. Drivers of both the cars tried to sped away.
PW-5 Kailash Chand Yadav further stated that Sessions Case Nos. 72/08, 81/08 & 82/08 Page 12 /21 13 Constable Mahesh stopped the vehicles with the help of barricade. Accused Shamshad was seated by the side of driver in Esteem Car, who had fired aiming police party. Accused Shamshad again tried to load his pistol but he was over powered by him and constable Tejbir. He further stated that the vehicle which was stoped first was being driven by Manoj and the Maruti Esteem Car was being driven by one Vishnu. Two persons, who were sitting in rear seat in Esteem Car managed to escape.
PW-5 SI Kailash has further stated that he conducted separate proceedings in respect of fire on police party. ASI Chet Ram reached at the spot, who conducted the proceeding in respect of arm recovered from the possession of accused Shamshad. ASI Chet Ram recorded his statement Ex. PW-4/A. He further stated that he handed over the country made pistol and three live cartridges, which were recovered from the possession of accused Shamshad. One fired cartridge was found inside the barrel of country made pistol. ASI Chet Ram had prepared sketch of recovered country made pistol and cartridge which is Ex. PW-4/B and seized the same vide memo Ex. PW-4/C after sealing the same with the seal of CR. Rukka was sent to Police Station through Ct. Dhanbir. Accused Shamshad was arrested in this case vide memo Sessions Case Nos. 72/08, 81/08 & 82/08 Page 13 /21 14 Ex. PW-4/F and his personal search was conducted vide memo Ex. PW-4/F. He identified the country made pistol as Ex.P-1 and cartridges as Ex. P-2/1 to P-2/4 which was recovered from the accused Shamshad.
PW-4 A.S.I. Chet Ram is the Investigating Officer of the case. He deposed that on 13.7.2004, while he was posted at Police Post Harsh Vihar, on receipt of DD No. 29, he reached near AFC Godown, Sewa Dham Road, Milan Garden, there SI Kailash Chand produced accused Shamshad along with country made pistol, three live cartridges and one spent cartridge. He recorded the statement of SI Kailash Chand, which is Ex. PW4/A. He prepared sketch of country made pistol and cartridges vide Ex. PW-4/B and sealed the same vide memo Ex. PW-4/C after seizing the same in a pulanda with the seal of CR. He prepared rukka, which is Ex. PW-4/D and got the case registered through constable Dharambir. He prepared site plan which is Ex. PW-2/G He arrested the accused in this case, recorded the statement of witnesses and after completion of investigation, filed the challan.
PW-1 is ASI Brij Lal was duty officer. He deposed that on 13.07.2004 on receipt of rukka from Constable Dhanbir which was sent by ASI Chet Ram, he recorded the FIR No. 437/04, Sessions Case Nos. 72/08, 81/08 & 82/08 Page 14 /21 15 the copy of the same is Ex. PW-1/A. The investigation was assigned to ASI Chet Ram.
PW-2 is Constable Dhanvir. He deposed that on 13.7.2004 he was posted at Police Post Harsh Vihar. He reached at the spot where ASI Chet Ram handed over him a rukka for registration of the case. At about 11.10 p.m. he left the spot with rukka and got the case registered and after registration of FIR, he handed over the original rukka to ASI Chet Ram.
PW-3 Constable Tejbir Singh has deposed that on 27.9.2004, he had taken one parcel countaining country made pistol from Mohrer Malkhana and deposited the same in CFSL Hyderabad in intact condition on 30.9.2004 vide RC No. 613/21. So long the parcel remained in his possession, nobody tampered with it.
PW-6 is Sh. Devesh C. Srivastva DCP, who has stated that on 30.6.2005 while he was posted as Addl. Deputy Commissioner of Police, North East District, Delhi, he accorded sanction to prosecute the accused Shamshad U/s 25 Arms Act after considering the documents and applying his mind. The Sanction Order is Ex. PW-6/A. The statements of the accused persons were recorded Sessions Case Nos. 72/08, 81/08 & 82/08 Page 15 /21 16 U/s 313 Cr.P.C. wherein they have stated that they are innocent and falsely implicated in this case.
Accused Shamshad and Vishu have stated that he was innocent and falsely implicated in this case. They have stated that on 12.7.2004 they were lifted from Rohini Metro Station and thereafter implicated in this case. Nothing was recovered from them.
The accused Shamshad has examined his father namely Sh. Mohd. Ahsan as DW-1. He has stated that on 12th day of English Calender of year 2004, one person namely Shehjad informed him that his son Shamshad was lifted by police from a place at Rohini. On 13th of English Calender he sent a telegram to DCP Delhi to this effect. He further stated that on 14th day of Ebnglish Calender of year 2004, he sent fax message to Commissioner of Police of the area, the certified coy of telegram is Ex. DW-1/A and the receipt of the telegram is Ex. DW-1/B. The copy of the complaint which was sent to DCP is Ex. DW-1/C. I have heard Shri Ashok Kumar Ld. Addl. P.P. for the State and Sh. Roop Ram Ld. Counsel for the accused persons. I have gone through the file.
It was submitted by Ld. Addl. P.P. for the State that Sessions Case Nos. 72/08, 81/08 & 82/08 Page 16 /21 17 all the prosecution witnesses have supported the prosecution case on all the material points. It was submitted that nothing could come out in the cross examination of the prosecution witnesses which can shake their crediblities.
On the other hand it was submitted by Ld. Counsel for the accused persons that the accused persons have been falsely implicated. It was submitted that there are material contradictions in the statements of the prosecution witnesses and therefore their statements do not inspire any cofidence.
The prosecution case is that on 13.7.2004 at 9.20 p.m. near Pepsi Godown Nursery Millan Garden, Sewa Dham Marg, within the jurisdiction of Police Station Nand Nagri, the accused persons along with one Arif and Noor Mohd. in furtherance of their common intention obstructed SI Kailash Chand and other members of police party in discharge of their duties as public servants and for this the accused persons are facing trial U/s 186/34 IPC. In this regard, it is important to mention that for prosecution of the accused persons u/s 186 IPC the complaint u/s 195 Cr.P.C. is mandatory. In the present case the complaint u/s 195 Cr.P.C. has not been proved by the prosecution.
It is further the case of the prosecution is that on the Sessions Case Nos. 72/08, 81/08 & 82/08 Page 17 /21 18 above said date,time and place, the accused persons in furtherance of their common intention used criminal force against the police officials and also attempted to kill the police officials . The accused persons are facing trial for the same under section 353 read with section 34 IPC and under section 307 read with section 34 IPC.
As discussed above, it has come in the evidence of the prosecution witnesses that accused fired a shot from the country made pistol and attempted to kill the police party.
Now the question is that which of the accused has fired upon the police party. The perusal of statement of PW-4 Constable Mahesh wherein he has stated that driver of the Esteem car fired on the police party from his country made pistol. The perusal of his statement shows that he (PW-4) has not specified as to who was the driver of the Esteem car who had fired on the police party. PW-5 Ct. Tejbir and PW-8 Ct. Vijay Kumar have stated that Esteem Car was being driven by accused Vishnu. Thus, it is made out from the statement of PW-4 that it was the accused Vishnu who had fired from his country made pistol on the police party.
On the other hand, as per complaint Ex. PW-4/A, Shamshad had fired on the police party from his country made Sessions Case Nos. 72/08, 81/08 & 82/08 Page 18 /21 19 pistol. PW-5 SI Kailash Chand ( examined in case FIR No. 437/04) has stated that accused Shamshad had fired upon the police party.
PW-8 Constable Vijay Kumar has stated that one person has fired upon the police party. He has not specified as which of the accused has fired upon the police party.
In view of the above discussed evidence, it is clear that prosecution witnesses are not consistent regarding the accused who had fired upon the police party. Two versions have come, one is that accused Shamshad had fired on the police party and other is that accused Vishnu had fired on the police party. This is the material contradiction which goes to the root of the matter. The prosecution has not clarified this contradiction which creates a serious doubt in the prosecution story.
The perusal of the file shows that PW-4 Mahesh has stated that shot was fired by the accused while sitting in the car. On the other hand, PW-5 Ct. Tejbir Singh has stated that accused Shamshad alighted from the car and fired a shot. Similarly PW-8 Head Constable Vijay Kumar has stated that one person alighted from the car and fired upon the police party. The prosecution version is not clear as to whether the accused fired from inside the car or it was fired after the accused alighted from the car. This also Sessions Case Nos. 72/08, 81/08 & 82/08 Page 19 /21 20 creates a doubt in the prosecution story.
The prosecution witnesses also not consistent where the writing work was done. PW-5 Ct. Tejbir Singh has stated that rukka was recorded while sitting on police picket point whereas PW-6 has stated that the documents were prepared while sitting in front of gate of Pepsi Godown. PW-8 Head Constable Vijay Kumar has stated that rukka was recorded while sitting on a wall which was constructed by the side of Nursery. This is a material contradiction, which also creates a doubt in the case of the prosecution.
The case of the prosecution is that PW-4 Ct. Mahesh and PW-5 Ct. Tejbir Singh were present at the spot at the time of incident. The perusal of the documents prepared at the spot shows that non of the documents has been signed by them, which makes their presence doubtful at the spot.
PW-4 Ct. Tejbir Singh & PW-6 SI Hari Singh have stated that accused persons were taken to the Police Station in the car which was recovered from the accused persons. On the other hand PW-8 HC Vijay Kumar has stated that accused persons were taken to the police station on foot. This is also a material contradiction which creates a doubt in the prosecution case.
Sessions Case Nos. 72/08, 81/08 & 82/08 Page 20 /21 21In view of the above discussion, in my view the prosecution case becomes doubtful. After giving benefit of doubt to the accused person, both the accused persons are acquitted for the offences charged with.
The bail bonds of the accused persons are cancelled. Their sureties are discharged.
The file be consigned to Record Room.
Announced in open Court on 3rd June' 2010 (Surinder Kumar Sharma) Additional Sessions Judge (North East) Karkardooma Courts, Delhi Sessions Case Nos. 72/08, 81/08 & 82/08 Page 21 /21