Delhi District Court
Fir No:375/05; Ps Seema Puri; U/S ... vs . Raju & Others on 5 May, 2011
1 FIR NO:375/05; PS SEEMA PURI; U/S 399/402 IPC R/W SEC. 25 ARMS ACT ; STATE VS. RAJU & OTHERS IN THE COURT OF SH. B.S. CHUMBAK:ADDL. SESSIONS JUDGE DELHI Case ID Number 02402R0475482005 Session Case No. 126/08 Assigned to Sessions 03/10/05 Arguments heard on 04/05/11 Date of order 05/05/11 FIR NO. 375/05 Police Station SEEMA PURI Under Section 399/402 IPC R/W SEC.25 ARMS ACT Out come of the judgment AQUITTED STATE VS 1. RAJU S/O MURLI R/O VILLAGE NAOOR PS GANDHA DISTT. GORAKHPUR, UP (P.O. VIDE ORDER DT 31.10.08) 2. BABLOO S/O TWARIK R/O VILLAGE UPRELA PS ALOPUR DISTT. BANDHU UP 3. RAJENDER S/O KISHAN R/O C-248 LAJPAT NAGAR GHAZIABAD, UP (P.O VIDE ORDER DT.19.03.10) 4. RAVINDER SINGH BALMUKUND R/O C-348 LAJPAT NAGAR Page 1/22 2 FIR NO:375/05; PS SEEMA PURI; U/S 399/402 IPC R/W SEC. 25 ARMS ACT ; STATE VS. RAJU & OTHERS GHAZIABAD UP (P.O. VIDE ORDER DT 04.05.11) 5. UMESH S/O TEJPAL R/O MOHALLA PAKKA TILLA NEAR RAILWAY STATION PS AND DISTT. ITAVA UP Present: Sh. S.K. Dass Ld. Addl. PP for state. Sh. S.S. Chaudhary Advocate on behalf of all the accused. JUDGMENT
1. On 02.07.05 a case u/s 399/402 IPC r/w sec. 25 of Arms Act was registered at PS Seema Puri vide FIR no. 375/05 on the basis of rukka sent by ASI Sahid Khan against Raju s/o Murli r/o village Naoor PS Gandha, District Gorakhpur, UP.
2. Brief facts arising out of this case are that on 02.07.05 ASI Sahid Khan alongwith HC Vijay Om, Ct. Ram Charan and Ct. Rohtash were on patrolling duty in the area of R-Pocket, Dilshad Garden, Delhi. On that day at about 2:20 p.m a secret information was received by SI Sahid Khan that four/five young boys were sitting at Bara Park, Q-Pocket, Dilshad garden and making plan to commit dacoity. They all were also having illegal arms in their possession and Page 2/22 3 FIR NO:375/05; PS SEEMA PURI; U/S 399/402 IPC R/W SEC. 25 ARMS ACT ; STATE VS. RAJU & OTHERS can be apprehended if raided. On receipt of this information raiding party was organized, four/five public persons were asked to join the raiding party but none agreed. HC Naresh was directed to hear the conversation of accused persons and to raise a signal by putting his hand on his head. After hearing the conversation a raiding party was divided into two teams. At about 2:50 p.m nakabandi was done. On raising signal by HC Naresh Kumar all the members of raiding party attempted to apprehend all the accused persons. On seeing the police officials accused started running away in different directions. Accused Raju S/o Murli was apprehended by ASI Sahid Khan, accused Babloo s/o Twarik was apprehended by Ct. Rohtash, accused Rajender s/o Kishan was apprehended by Ct. Vijay Om, Accused Umesh was apprehended by ct. Ram Charan and accused Ravinder Singh was apprehended by HC Naresh Kumar. They all were interrogated. Their personal search were conducted. During the personal search of accused persons a loaded country made katta 12 bore was recovered from the dub of accused Raju, buttondar knives were recovered from the possession of accused Babloo, Ravinder and Rajender from right pocket of their pants. No arms were recovered from accused Umesh. All the illegal arms were taken in Page 3/22 4 FIR NO:375/05; PS SEEMA PURI; U/S 399/402 IPC R/W SEC. 25 ARMS ACT ; STATE VS. RAJU & OTHERS possession. Their sketches were prepared. HC Naresh informed that accused Raju s/o Murli was making plan to commit dacoity in the office of SRS Properties Builders Pocket Q, Dilshad Garden, Delhi. Site plan was prepared, disclosure statement of all the accused were recorded, statement of witnesses were also recorded. All the CFSL forms were filled up and country made katta and live cartridges were sent to the office of CFSL. Result of CFSL and sanction u/s 39 of Arms Act was obtained and after completion of all the necessary investigation challan u/s 173 Cr.P.C was presented in the court of Ld. MM.
3. Ld. MM after taking cognizance for the offence supplied the copies of the challan to all the accused as provided u/s 207 Cr.P.C and committed the case to the court of Sessions and on turn allocated to this court for trial. Thereafter case was fixed for arguments on charge.
4. After hearing arguments and on perusal of the material placed on record charge for the offence u/s 399/402 IPC r/w sec. 25 Arms Act was framed against all the accused persons to which they pleaded not guilty and claimed Page 4/22 5 FIR NO:375/05; PS SEEMA PURI; U/S 399/402 IPC R/W SEC. 25 ARMS ACT ; STATE VS. RAJU & OTHERS trial, thereafter case was fixed for prosecution evidence.
5. HC Rohtash appeared as (PW1), HC Ram Charan as (PW2), HC Vijay Om as (PW3), ASI Rakesh Kumar as (PW4), HC Naresh Kumar as (PW5), HC Rambir as (PW6), ASI Shahid Khan as (PW7), thereafter no PW was left to be examined, therefore, prosecution evidence was closed.
6. Brief testimony of all the PW's are as follows:
I) PW1 deposed that on 2.7.05 he was on patrolling duty with ASI Sahid Khan, HC Vijay Om, HC Naresh and Ct. Ram Charan. On that day at about 2:20 p.m when they reached at R Pocket Dilshad Garden, ASI Sahid Khan received a secret information that four/five young boys were making a plan to commit dacoity while sitting under the cover of bushes and wall of park of Q Pocket Dilshad Garden. They all were having illegal arms with them. He further deposed that on receipt of this information ASI requested four/five passersby to join the raiding party but they all refused and left the spot without disclosing their identities. ASI Saheed Khan organized a raiding party consisting of above named police officials and a secret informer. HC Naresh Page 5/22 6 FIR NO:375/05; PS SEEMA PURI; U/S 399/402 IPC R/W SEC. 25 ARMS ACT ; STATE VS. RAJU & OTHERS was in civil dress and he was instructed to over hear the conversation of those boys who were making plan to commit dacoity, after satisfying himself to the fact that accused persons were making plan for dacoity, he gave a signal by touching his head by his hand. Two teams were constituted. In the first team he and ASI Sahid Khan and in another team HC Vijay Om and Ct. Ram Charan and HC Naresh were deployed.
He further deposed that at about 2:50 p.m HC Naresh gave a signal by touching his head with his hand and members of raiding party rushed towards bushes. On seeing police officials all the accused persons started running towards different directions. ASI Sahid Khan apprehended accused Raju, he apprehended accused Babloo, HC Naresh apprehended accused Ravinder, HC Vijay Om apprehended accused Rajender, Ct. Ram Charan apprehended accused Umesh. He correctly identified all the accused present in the court who were apprehended by the members of raiding party. ASI Sahid Khan took the search of accused Raju and from his right dub a countrymade pistol of 12 bore was recovered. Cartridge was taken out, sketch of country made pistol and cartridge was prepared and sealed in a parcel with the seal of SK by ASI Page 6/22 7 FIR NO:375/05; PS SEEMA PURI; U/S 399/402 IPC R/W SEC. 25 ARMS ACT ; STATE VS. RAJU & OTHERS Sahid Khan. FSL form was filled up. Seal after use was handed over to Ct. Naresh Kumar. On search of accused Babloo, Ravinder and Rajender a buttondar knife was recovered from their possession. Sketch of knives were prepared and same were sealed with the seal of SK. He further deposed that nothing was recovered from accused Umesh and seal after use was handed over to HC Naresh. He further deposed that IO prepared the rukka and he took the same to the PS for registration of the case and thereafter case was assigned to ASI Rakesh Kumar for further investigation. He further deposed that he alongwith ASI Rakesh Kumar again reached at the spot and on reaching there ASI Sahid Khan handed over the sketch memos, seizure memos, sealed parcels and custody of all the accused persons to ASI Rakesh Kumar. ASI Rakesh Kumar inspected the spot on the pointing out of ASI Sahid Khan and prepared the site plan, arrested all the accused, prepared arrest memos and their personal search memos. He also identified the case property when shown to him. He identified the knife which was recovered from the possession of accused Babloo Ex.P1. Page 7/22 8 FIR NO:375/05; PS SEEMA PURI; U/S 399/402 IPC R/W SEC. 25 ARMS ACT ; STATE VS. RAJU & OTHERS HC Rohtash appeared as PW1. He has been examined in chief on 22.5.06, his cross examination was deferred but thereafter he never turned up, therefore, he could not be cross examined.
(ii) PW2 deposed that on 2.7.05 he was posted as Ct. at PS Seema Puri . On that day he alongwith ASI Sahid Khan, HC Vijay OM, HC Naresh, Ct. Rohtash and he were on patrolling duty and were present at R Pocket Dilshad Garden. On that day at about 2:20 pm ASI Shahid Khan received a secret information that five six persons were sitting inside bada park near Q Pocket and were making plan to commit dacoity in the area, they were also having illegal arms with them. ASI Shahid Khan requested to four five persons to join the raiding party but they all refused. IO ASI Shahid Khan had prepared a raiding party consisting of police officials. The raiding party was divided into two teams, in one team ASI Shahdid Khan and Ct.. Rohtash and other party consisting of HC Om and himself. ASI Shahid Khan had directed HC Naresh to hear the conversation of the persons present inside the park and gave signal by putting his hand over his head. HC Naresh went inside the park and heard the conversation of the persons gathered there. At about Page 8/22 9 FIR NO:375/05; PS SEEMA PURI; U/S 399/402 IPC R/W SEC. 25 ARMS ACT ; STATE VS. RAJU & OTHERS 2:50 p.m HC Naresh gave signal to the raiding party by putting his hand over his head. They apprehended five persons present inside the park. ASI Shahid Khan had apprehended accused Raju (PO), HC Vijey OM had apprehended accused Rajender (PO), he had apprehended accused Umesh, accused Babloo present in the court was apprehended by HC Rohtash, accused Ravinder was apprehended by HC Naresh. Personal search of accused Raju was conducted by ASI Shahid Khan and a countrymade katta .12 bore was recovered from him, katta was loaded, one buttondar knife were recovered from accused Rajender, Babloo and Ravinder. Nothing was recovered from accused Umesh. IO prepared the sketch of katta and knife and kept in separate pullanda and were seized by him. IO prepared a rukka and handed over to Ct.. Rohtash for registration of the FIR. After registration of the FIR ASI Rakesh Kumar reached at the spot. ASI Sahid Khan had handed over the possession of the accused and all the pullandas to the IO. All the accused persons were arrested and their personal search were conducted by the IO. Accused Umesh was arrested vide memo Ex. PW2/A and his personal search was conducted vide memo Ex. PW2/B. All the accused Babloo, Ravinder and Umesh were identified by the witness and he can identify other accused if Page 9/22 10 FIR NO:375/05; PS SEEMA PURI; U/S 399/402 IPC R/W SEC. 25 ARMS ACT ; STATE VS. RAJU & OTHERS produced before him. His statement was recorded by the IO. During his cross examination he denied the suggestion that all the accused persons were arrested from nearby road and IO has prepared memos while sitting on a patri inside the park. Rest of his testimony is reiterited by him as submitted by him during examination in chief.
(iii) PW3 is the member of raiding party and he stated all the facts in the same manner which were stated by PW2. He also corroborated the fact that ASI Sahid Khan had apprehended accused Raju (PO) and he apprehended accused Rajender (PO) and Ct. Ram Charan had apprehended accused Umesh, accused Babloo was apprehended by HC Rohtash, accused Ravinder was apprehended by HC Naresh. He further deposed that sketch of knife recovered from the possession of accused Rajender was prepared vide memo Ex.PW3/A and knife was kept in a pullanda sealed with the seal of SK and seized vide memo Ex.PW3/B. He further corroborated the fact that IO prepared the rukka and handed over to Ct. Rohtash for registration of the case. He also corroborated the fact that all the accused persons were Page 10/22 11 FIR NO:375/05; PS SEEMA PURI; U/S 399/402 IPC R/W SEC. 25 ARMS ACT ; STATE VS. RAJU & OTHERS arrested and their personal search were conducted by IO. Arrest memo of accused Rajender is Ex. PW 3/C and personal search was conducted vide memo Ex. PW3/D. Disclosure statement of all the accused were recorded vide memo Ex.PW3/E. He also identified the buttondar knife Ex.P.2 which were recovered from the possession of accused.
During his cross examination he reiterated his testimony as submitted by him during examination in chief and also deposed that all the proceedings were conducted at the spot but his statement was recorded at PS. IO had prepared the memos while sitting on the patri inside the park.
(iv) PW4 deposed that on 02.07.05 further investigation of this case was assigned to him. He went to the spot alongwith Ct. Rohtash and found ASI Shahid Khan alongwith other staff and the accused persons present at the spot. ASI Shahid handed over the custody of all the five accused persons to him . He also handed over seizure memo and pullandas to him. He also prepared site plan Ex, PW4/A on the pointing out of ASI Shahid Khan. All the accused Babloo, Raju , Umesh , Rajender and Ravinder were arrested vide Page 11/22 12 FIR NO:375/05; PS SEEMA PURI; U/S 399/402 IPC R/W SEC. 25 ARMS ACT ; STATE VS. RAJU & OTHERS memos Ex. PW1/C, 4/B, 2/A 3/C and 4/C and their personal search were conducted vide memo Ex. PW4/D, 2/B, 3/D, 4/D and 4/E respectively. Disclosure statement of all the accused were recorded vide memo Ex. PW3/E. He also recorded statement of witnesses and obtained sanction u/s 39 Arms act from the then Ld. D.CP. Case property was sent to FSL. He also identified the handwriting of Sh. D.C. Shrivastav, the then DCP who had granted sanction, same is Ex. PW4/E. FSL report was obtained, same is Ex. PX. He identified all the accused Babloo, Ravinder and Umesh present in the court today and can also identify the accused Raju and Rajender (who had already been declared PO) if produced before me.
During his cross examination he deposed that he recorded the statement of witnesses at PS. Rest of his testimony is reiterated by him as submitted by him during examination in chief.
(v) PW5 again corroborated the testimony of PW2 and PW3 in the same manner which were stated by them. Sketch of knife which were recovered from the possession of accused Ravinder Ex.PW5/A was prepared Page 12/22 13 FIR NO:375/05; PS SEEMA PURI; U/S 399/402 IPC R/W SEC. 25 ARMS ACT ; STATE VS. RAJU & OTHERS in his presence and was sealed with the seal of SK and seized vide memo Ex.PW5/B bearing his signature at point A. He also corroborated the fact that IO prepared the rukka and handed over to Ct. Rohtash for registration of the case and after registration of the FIR, ASI Rakesh Kumar reached at the spot. He also corroborated the fact that ASI Rakesh Kumar reached at the spot and received the custody of all the accused and all the pullandas prepared by ASI Sahid Khan. He also identified the case property i.e buttondar knife recovered from the possession of accused Ravinder Ex.PW5/P1.
During his cross examination he deposed that IO prepared all the memos while sitting on the patri inside the park and rest of his testimony is reiterated by him as submitted by him during examination in chief.
(vi) PW6 deposed that on 30.8.05 as per direction of IO he took one sealed pullanda sealed with the seal of SK, one sample seal and one FSL form from MHCM Seema Puri vide RC no. 455/21 and deposited the case property at FSL Chandigarh. After depositing the case property in FSL Chandigarh he returned back to PS Seema Puri and handed over the copy of Page 13/22 14 FIR NO:375/05; PS SEEMA PURI; U/S 399/402 IPC R/W SEC. 25 ARMS ACT ; STATE VS. RAJU & OTHERS receipt to MHCM. He further deposed that till the property remained in his possession nobody tampered with it.
During his cross examination he reiterated his testimony as submitted by him during examination in chief.
(vi) PW7 is the initial IO. He also corroborated the testimony of all the police officials who have already been examined and also corroborated the fact that raiding party was divided into two teams. He apprehended accused Raju (PO), H.C Vijay Om had apprehended accused Rajender (PO), Ct Ram Charan had apprehended accused Umesh present in the court, accused Babloo present in the court was apprehended by HC Rohtash, accused Ravinder was apprehended by HC Naresh. He prepared the sketch of katta and cartridge recovered from accused Raju vide memo Ex.PW 7/A and seized vide memo Ex. PW7/B. He prepared the sketch of knife recovered from Babloo, Ravinder and Rajinder vide memos Ex.PW 1/A, 5/A and 3/A respectively and kept in separate pullanda, sealed with the seal of SK and were seized by him vide memo Ex.PW 1/B, 5/B and 3/B respectively. He filled up the FSL form at the spot and prepared a rukka Ex.PW 7/C and handed Page 14/22 15 FIR NO:375/05; PS SEEMA PURI; U/S 399/402 IPC R/W SEC. 25 ARMS ACT ; STATE VS. RAJU & OTHERS over to Ct. Rohtash for registration of the FIR. After registration of the FIR ASI Rakesh Kumar reached at the spot. He had handed over the possession of the accused and all the pullandas and memos to the IO. He can identify other accused if produced before him. He also identified buttondar knives recovered from accused Babloo and is Ex.P.1, Rajender (PO) and is Ex.P.2 and recovered from accused Ravinder Ex.PW.5/P1. He also identified dessi Katta recovered from the accused Raju (PO) and are Ex.PW7/P1 and P.2 with fired cartridge and submits that fired cartridge was alive at the time of recovery (now test fired in FSL). He further submits that nothing was recovered from accused Umesh.
During his cross examination he sent the rukka at about 5.15 P.M to P.S and ASI Rakesh Kumar reached to the spot along with Const. Rohtash at about 7 p.m. He had prepared the memo inside the park by sitting on the grass. No public persons gathered at that time. He denied the suggestion that neither katta nor the knifes were recovered from the accused persons and case property was planted upon accused the accused persons or that the accused persons were lifted from nearby road. All the proceedings were conducted at Page 15/22 16 FIR NO:375/05; PS SEEMA PURI; U/S 399/402 IPC R/W SEC. 25 ARMS ACT ; STATE VS. RAJU & OTHERS the spot , his statement was recorded in the PS. Thereafter no PW was left to be examined therefore, prosecution evidence was closed and case was fixed for examination of accused u/s 313 Cr.P.C
7. During the course of examination of all the accused u/s 313 Cr.P.C they all converted all the allegations as alleged against them and submitted that they all were innocent and falsely implicated in this case. They did not desire to lead defence evidence, therefore, defence evidence is closed and case was fixed for final arguments.
8. I have heard the arguments on behalf of Ld. Counsel for both the parties.
9. Ld. Counsel on behalf of accused submitted that before convicting the accused under any penal law it is the duty of the prosecution to prove its case beyond reasonable doubt and in the present case no incriminating corroborative evidence with regard to the involvement of the accused for the offence as alleged against them is brought on record.
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10. In support of his contention it is submitted that all the accused were apprehended only at the instance of secret informer and no person other than police official joined the investigation of this case and only on the basis of uncorroborated testimony of police witnesses it would not be in the interest of justice to convict the accused persons for the offence as alleged against them.
11. He further deposed that on perusal of the testimony of prosecution witnesses there are material contradictions brought on record during their examination in chief. PW1 who was the main witness in this case never turned for the purpose of cross examination despite opportunity given to him, therefore, his testimony cannot be read in corroboration of testimony of other PW's. It is further pleaded that despite of the fact that information received through secret informer with regard to the fact that five/six persons were sitting in a park and were making plan to commit dacoity, police officials has not taken care to follow the provisions of section 100 Cr.P.C . The countrymade katta allegedly recovered from one of the co-accused and buttondar knives which were recovered from other accused are of same kind Page 17/22 18 FIR NO:375/05; PS SEEMA PURI; U/S 399/402 IPC R/W SEC. 25 ARMS ACT ; STATE VS. RAJU & OTHERS which the police officials used to plant in other such nature of cases. It is further pleaded that neither the statement of any person from SRS Properties Builders Pocket Q, Dilshad Garden where the accused persons were making plan to commit dacoity has been recorded nor he has been made a witness. Counsel for accused further pleaded that factum of registration of the case vide FIR no. 375/05 for the offence as alleged against the accused is also not proved as despite repeated opportunities given to ASI Badlu Singh, he is not examined and his non examination is fatal to the prosecution as investigation is initiated only after registration of the case which is not proved and in the absence of any public witness and the corroborative evidence of the police official it is established that prosecution failed to prove its case beyond reasonable doubt and requested for their acquittal.
12. On the contrary Ld. Addl. PP for state submitted that there is no reason to disbelieve the testimony of the police officials if the same is corroborated with each other and the testimony of police officials should also be consider in the same manner as of reasonable prudent person, therefore, on perusal of testimony of PW prosecution succeeded in brought on record Page 18/22 19 FIR NO:375/05; PS SEEMA PURI; U/S 399/402 IPC R/W SEC. 25 ARMS ACT ; STATE VS. RAJU & OTHERS sufficient corroborative evidence to convict the accused persons for the offence as alleged against him. In support of his contention he submitted that PW1 could not be cross examined despite opportunity given to him shall not prove fatal to the prosecution as the role which was attributed to PW1 has already been proved by way of corroborative evidence by PW2, PW3 and PW4 and other police officials. The factum of registration of the case is proved by PW1. Admittedly he has not been cross examined but his testimony is further corroborated by initial IO ASI Sahid Khan and ASI Rakesh Kumar. Factum of depositing the case property in the Malkhana and thereafter sending to CFSL for its examination is proved by IO ASI Rakesh Kumar, HC Rambir who specifically deposed that he deposited the case property in the office of CFSL and in view of the aforesaid corroborated testimony of the witnesses it cannot be said that prosecution failed to prove its case beyond reasonable doubt and requested for conviction of all the accused.
13. After hearing arguments on behalf of ld. Counsel for both the parties I carefully perused the testimony of all the PW's wherein it is established that PW1 is the main witness in this case who failed to appear Page 19/22 20 FIR NO:375/05; PS SEEMA PURI; U/S 399/402 IPC R/W SEC. 25 ARMS ACT ; STATE VS. RAJU & OTHERS before the court for the purpose of cross examination despite having been given sufficient opportunities. Factum of taking rukka to PS for the purpose of registration of the case is also not proved as cross examination of PW1 Ct. Rohtash could not be concluded. Other police officials who were the member of raiding party have also failed to brought on record the corroborative evidence with regard to the facts as alleged in the present case. In view of the aforesaid established facts and taking into consideration the evidence adduced by the prosecution coupled with the fact that no public witnesses had joined during the course of investigation and search was also conducted as per provisions of section 104 of Cr.P.C I am of the considered view that all the accused persons have become entitled to be given them benefit of doubt.
14. Accordingly, benefit of doubt be given to both the accused namely Babloo and Umesh. Both accused namely Babloo and Umesh are acquitted for the offence as alleged against them u/s 399/402 IPC r/w section 25 of Arms Act.
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15. The bail bond/ surety bond furnished by both the accused shall remain in force till the expiry of six months and both accused are further directed to appear before the appellant court, if they are required to appear before the appellant court in view of the provision of Section 437A Cr.P.C. File be consigned to Record Room with the direction to revive the same as and when accused namely Raju, Rajender and Ravinder be rearrested.
ANNOUNCED IN OPEN COURT (B.S. CHUMBAK)
DATED Dt. 5th MAY 2011 ASJ-3 (North-East) KKD
DELHI
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FIR NO:375/05; PS SEEMA PURI; U/S 399/402 IPC R/W SEC. 25 ARMS ACT ; STATE VS. RAJU & OTHERS FIR NO.:375/05 PS SEEMA PURI 05.05.2011 Present: Sh. S.K. Dass Ld. Addl. PP for state.
Accused Babloo and Umesh are present on bail.
Accused Raju, Rajender and Ravinder are PO.
Vide separate judgment benefit of doubt is given to both the accused namely Babloo and Umesh. Both accused namely Babloo and Umesh are acquitted for the offence as alleged against them u/s 399/402 IPC r/w section 25 of Arms Act.
The bail bond/ surety bond furnished by both the accused shall remain in force till the expiry of six months and both accused are further directed to appear before the appellant court, if they are required to appear before the appellant court in view of the provision of Section 437A Cr.P.C. File be consigned to Record Room with the direction to revive the same as and when accused namely Raju, Rajender and Ravinder be rearrested.
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