Delhi District Court
Fir No.837/1999 State vs Baij Nath & Ors. Page 1 Of 36 on 5 March, 2021
IN THE COURT OF SH. SUDHANSHU KAUSHIK :
ADDITIONAL SESSIONS JUDGE : WEST DISTRICT :
TIS HAZARI COURTS : DELHI
IN THE MATTER OF : -
CNR NUMBER : DLWT01-009110-2018
SESSIONS CASE NUMBER : 690/2018
FIR NUMBER : 837/1999
POLICE STATION : PASCHIM VIHAR
UNDER SECTION : 399, 402 & 174A IPC
STATE
VS
(1) Baij Nath (proclaimed offender)
S/o Suraj Bhan
R/o Village Allauddin Pur, PS Ghighna,
District Muzaffarnagar (UP)
(2) Om Prakash (proclaimed offender)
S/o Arjun
R/o Village Ahmed Garh,
District Muzaffarnagar (UP)
(3) Dhara Singh (acquitted)
S/o Tara Ram
R/o Village Rampura,
District Muzaffarnagar (UP)
(4) Madan S/o Karna
R/o Village Dudhli,
District Muzaffarnagar (UP)
DATE OF INSTITUTION : 05.10.2018
DATE OF CONCLUSION OF FINAL ARGUMENT : 22.02.2021
DATE OF PRONOUNCEMENT OF JUDGMENT : 05.03.2021
FIR No.837/1999 State Vs Baij Nath & Ors. Page 1 of 36
Judgment
1.On the accusation of making preparation and assembling for the purpose of committing dacoity, accused Madan, Baij Nath, Om Prakash and Dhara Singh were sent up for trial for committing offences punishable under Section 399/402 of the Indian Penal Code (IPC).
Brief facts mentioned in the charge-sheet
2. It is the case of prosecution that on 18.09.1999, a police party consisting of Assistant Sub-Inspector Charan Singh, PW-2/Assistant Sub-Inspector Jai Kishan, PW-7/Head-Constable Satyapal, PW-3/Head-Constable Bajrang, Constable Deep, Constable Ved Prakash, PW-9/Constable Anil Sharma, PW-6/Constable Ranbir Singh, PW-8/Constable Rohtash Kumar, Constable Bharti Lal, PW-10/Sub-Inspector Raj Kumar were petrolling the West District of Delhi on a Government vehicle bearing registration No. DL1V2809 under the supervision of Inspector Ashok Tyagi. It has been stated that around 11 PM, the police party reached on the bridge of Nihal Vihar, where a secret informer met Head-Constable Satyapal and disclosed that Madan Bhawaria and his gang have assembled in the jungle opposite the vacant quarters of the local fire station for the purpose of committing dacoity. It is the prosecution's case that Head Constable Satyapal shared the information with Inspector Ashok Tyagi and on his directions, Sub-Inspector Raj Kumar constituted a raiding party. Since, it FIR No.837/1999 State Vs Baij Nath & Ors. Page 2 of 36 was late in the night, therefore, no public persons could be joined in the raiding party. The raiding party left Government vehicle near the jungle and started walking on foot towards the jungle. It has been stated that at around 11:10 PM, the members of the raiding party reached jungle along with the secret informer and observed that around 5-6 persons were talking behind the bushes. On noticing this, Sub-Inspector Raj Kumar directed the members of the raiding party to split into four teams and surround the bushes. On his directions, the members of the raiding party took positions and surrounded the bushes from all directions. It has been stated that Sub-Inspector Raj Kumar and Assistant Sub-Inspector Charan Singh went towards the West direction and overheard that the persons hiding behind the bushes were making preparation for committing dacoity at a house in the nearby area of Ambika Vihar. Sub-Inspector Raj Kumar overheard that the leader of the gang (to whom everybody was addressing as Madan Bhanwaria) was telling the other members that he had identified a three storied building in Ambika Vihar, where they can find lot of 'pila- maal' (gold). He also overheard that the leader of the gang was assigning roles to the other members and he was explaining them the plan to execute dacoity. It has been stated that on overhearing this conversation, Sub- Inspector Raj Kumar signaled the other members of the raiding party, who were deployed in various directions and the raiding party managed to FIR No.837/1999 State Vs Baij Nath & Ors. Page 3 of 36 apprehend four individuals while the alleged leader of the gang managed to slip away.
3. The prosecution's case proceeds further that after being apprehending, the members of the gang disclosed their identity as Madan, Dhara Singh, Om Prakash and Baij Nath. These accused persons were arrested vide separate arrest Memos and their personal search was carried out. It has been stated that an iron rod was recovered from Dhara Singh while an iron hammer and broken cycle chain was recovered from the possession of Om Prakash. It has been alleged that Baij Nath was found in possession of a wooden stick, which he had plucked from a tree while Madan was found in possession of a loaded country-made pistol and a live cartridge. The weapons recovered from the possession of the accused persons were seized vide different seizure memos. Thereafter, Sub-Inspector Raj Kumar prepared rukka Ex. PW4/A and deputed Constable Anil to take it to the police station. On the directions of Sub-Inspector Raj Kumar, Constable Anil took the rukka to the police station and got the present FIR bearing No.837/1999 registered under Section 399 and 402 read with Section 34 of IPC. In the mean time, the investigation was assigned to Sub-Inspector Ashok Kumar and he arrived at the spot and met the members of the raiding party. He collected all the documents and recorded the statement of witnesses. The seized weapons including the firearm and the cartridges FIR No.837/1999 State Vs Baij Nath & Ors. Page 4 of 36 were kept in separate pullandas and the same were deposited in the Malkhana of the police station. In respect of the recovered firearm and cartridges, a separate FIR bearing number 838/1999 under Section 25 of the Arms Act was registered at the same police station. The Investigating Officer prepared the site plan, completed the necessary formalities and filed the charge-sheet in the court.
4. Copies of the charge-sheet were supplied to all the accused persons by the concerned Metropolitan Magistrate and the matter was committed for trial qua the accused Dhara Singh and Madan Lal whereas accused Baij Nath and Om Prakash were declared 'proclaimed offenders' as they were absconding. On the basis of charge-sheet, charges under Section 399 & 402 of IPC were framed against Dhara Singh and Madan. During trial, Madan Singh stopped appearing in the court and he was also declared to be a proclaimed offender. The trial proceeded and concluded qua Dhara Singh and resulted in his acquittal vide order dated 28.07.2004 passed by the Ld. Predecessor Court. Thereafter, Madan was arrested and the trial qua him was revived. Since, Madan was arrested as 'proclaimed offender', therefore, additional charge under Section 174-A IPC was framed against him.
Witnesses examined
5. Ten (10) prosecution witnesses were examined.
FIR No.837/1999 State Vs Baij Nath & Ors. Page 5 of 36
Members of raiding party PW-1/Head-Constable Deep Kumar (member of the raiding party) supported the prosecution's case. He stated that he was petrolling the area along with the police party on a Government vehicle. He mentioned that the secret informer met Head Constable Satyapal Singh and disclosed that the members of Madan Bhanwaria gang have assembled behind the bushes opposite the fire station of Nihal Vihar and they were planning to commit dacoity. He deposed that Head Constable Satyapal shared this information with Inspector Ashok Tyagi, who directed Sub-Inspector Raj Kumar to constitute a raiding party. He mentioned that no public persons could be joined in the raiding party as it was late in the night. He admitted in cross-examination that Sub-Inspector Raj Kumar did not prepare the rough sketch of the recovered firearm. He conveyed that the police party left the office on government vehicle at around 10:30 PM and reached at the bridge of Nihal Vihar within half an hour.
PW-2/Sub-Inspector Jai Kishan (member of the raiding party) stated that Sub-Inspector Raj Kumar and Assistant Sub-Inspector Charan Singh heard the accused persons talking and planning about dacoity. He conveyed in cross-examination that he cannot tell about the alleged recovery from the possession of Dhara Singh, Madan Lal and Baij Nath as he was busy at the spot with the investigation of accused Om Prakash. FIR No.837/1999 State Vs Baij Nath & Ors. Page 6 of 36
PW-3/Head-Constable Bajrang (member of the raiding party) stated that Inspector Ashok Tyagi remained with the raiding party till 12 AM. He stated that all the police officials were in police uniform. He mentioned that Inspector Ashok Tyagi remained seated in the government vehicle while the members of the raiding team went towards the fire station. He conveyed that the recovery memos of the recovered country made pistol and the rough sketch of the firearm were prepared before the rukka was dispatched to the police station. He denied that all the documents were prepared at the police station. He stated that some documents were even prepared at the spot.
PW-6/Constable Ranbir Singh (member of the raiding party) stated that naakabandi was made around the bushes where the accused persons were sitting and planning about the dacoity. He stated in cross- examination that Investigating Officer requested public persons to join investigation but they refused and left the spot without disclosing their names and addresses. He stated that no written notice was served on those public persons who refused to join investigation. He stated that Investigating Officer offered his own search before carrying out the search of accused persons.
PW-7/Additional Sub-Inspector Satyapal (member of the raiding party) stated that Sub-Inspector Raj Kumar overheard the conversation of FIR No.837/1999 State Vs Baij Nath & Ors. Page 7 of 36 the accused persons and apprised the members of the raiding party that the accused persons were planning to commit dacoity.
PW-8/Constable Rohtash (member of the raiding party) stated that the raiding party was constituted by Inspector Ashok Tyagi. He stated that Assistant Sub-Inspector Charan Singh and Sub-Inspector Raj Kumar overheard the conversations of accused persons. He stated in cross- examination that Inspector Ashok Tyagi remained at the spot till 1:00 AM. He mentioned that Sub Inspector Raj Kumar recorded his statement at around 11.00 PM. He mentioned that after recording his statement, no other proceeding was done at the spot. He mentioned that he remained at the spot till 01:00 AM as he was waiting for Constable Anil to return from the police station. He conveyed that no public person was available at the spot as it was quite late in the night. He denied that there was complete darkness at the spot and conveyed that there was light to the extent that the police personnel could see each other and they could prepare the documents.
PW-9/Constable Anil Sharma (member of the raiding party) stated that Sub-Inspector Charan Singh overheard the conversation of the accused persons. He stated in cross-examination that the police party reached at Nihal Vihar from the ATS Cell at Tagore Garden within 30 minutes after starting from the office. He stated that the departure entry FIR No.837/1999 State Vs Baij Nath & Ors. Page 8 of 36 was made by Sub-Inspector Raj Kumar at the office of ATS Cell. He stated that all the police officials were in civil dress and they were not in uniform. He conveyed that Inspector Ashok Tyagi remained sitting in the government vehicle. He conveyed that he does not know whether employees were residing in the fire station. He stated that the Investigating Officer did all the writing work in his presence at the spot itself. He mentioned that the site plan was also prepared by the Investigating Officer in his presence. He admitted that he took the rukka to the police station after all the writing work was done by the Investigating officer.
Witnesses of investigation PW-10/Sub-Inspector Raj Kumar (First investigating officer) was examined on two occasions, for the first time, during trial of Dara Singh and on the second time, after the arrest of accused Madan. He was inadvertently numbered as PW-2 at the time of subsequent examination. He justified the investigation and deposed about the documents prepared by him. He stated in cross-examination that the police party left the office of special staff at around 09:00 PM. He stated that after leaving the office, the police party first went to Raghubir Nagar and from there to Paschim Vihar and thereafter, the police party reached Nihal Vihar. He stated that there was no residential area near the fire station. He mentioned that there FIR No.837/1999 State Vs Baij Nath & Ors. Page 9 of 36 were residential quarters near the fire station but no one used to live in those quarters. He mentioned that he did not approach public persons for joining them in investigation. He stated that he recorded the proceedings on the spot in the light of the tempo traveler (government vehicle) on which the police party was traveling. He mentioned that the police party recorded the departure entry at the office. He mentioned that no public person was seen at the spot while he was carrying out the proceedings. He stated in cross-examination that the police party started the petrolling duty at around 9:00 PM. He stated that Inspector Ashok Kumar Tyagi remained at the spot till 1:30 AM. He conveyed that Inspector Ashok Kumar Tyagi remained at the spot till the rukka was dispatched. He admitted that there was a fire station near the spot and the gate of the fire station used to remain open. He mentioned that no one from the fire station was called to join the investigation. He mentioned that the raiding party consisted of around 10 police officials and all of them were in plain clothes.
PW-5/Assistant Sub-Inspector Ashok Kumar (Second Investigating Officer) was also examined on two occasions, for the first time, during trial of Dara Singh and on the second time, after the arrest of accused Madan. He was inadvertently numbered as PW-2 at the time of subsequent examination. He stated that on 18.09.1999, SHO of the police station summoned him to the spot. He mentioned that after he arrived at FIR No.837/1999 State Vs Baij Nath & Ors. Page 10 of 36 the spot, Sub-Inspector Raj Kumar told him that a country-made pistol was recovered from Madan and in that regard, separate proceedings are being conducted by Head-Constable Satyapal. He stated that Sub- Inspector Raj Kumar handed him over the case property recovered from the possession of the accused persons and the case property was in sealed condition. He stated that Sub-Inspector Raj Kumar also handed him over all the seizure memos. He stated that he deposited the case property in the Malkhana and recorded the statement of the witnesses. He mentioned about completing the formalities and filing the charge sheet in the court. He mentioned in cross-examination that he did not make effort to call witnesses from the fire station. He mentioned that he did not make efforts to call them as it was early morning time of about 02:00- 03:00 AM. He conveyed that he might have remained at the spot for about 3-4 hours. He mentioned that he prepared the site plan and carried out further investigation. He mentioned that all the writing work was done under a street light but the same was not depicted in the site plan. Formal Witness PW-4/Head-Constable Gyanender Singh (Duty Officer) mentioned about the registration of FIR. The copy of the FIR bearing number 837/99 registered under Section 399/402 of IPC is Ex.PW4/B. He mentioned that at around 01:05 AM, Constable Anil Kumar brought the rukka to the FIR No.837/1999 State Vs Baij Nath & Ors. Page 11 of 36 police station and on the basis of the same, the FIR was registered.
6. The proceedings in respect of Section 174A IPC were put to the accused under Section 294 Cr.P.C and he admitted these proceedings including the Kalandra/complaint forwarded by the arresting officer, arrest memo, personal search memo and DD Entries.
Statement of the accused
7. Statement of the accused was recorded under Section 313 Cr.P.C wherein he denied all the incriminating evidence and took the defence of false implication. He came up with a version that he had been falsely implicated in the present case and the recovery of firearm had been planted upon him by the police. He stated that he had no knowledge that a proclamation under Section 82 Cr.P.C was issued against him by the court. No defence witnesses were examined by him.
Arguments
8. I have heard the arguments advanced by the Defence Counsel as well as Addl. Public Prosecutor for the State.
9. Defence Counsel has assailed the prosecution's case on the ground that there are various contradictions in the testimonies of prosecution witnesses. He submitted that the entire case of prosecution rested on the testimonies of police officials but there are glaring contradictions and discrepancies in their testimonies. He argued that the discrepancies in the FIR No.837/1999 State Vs Baij Nath & Ors. Page 12 of 36 testimonies of the police officials have raised question-mark over credibility of their statements. He has contended that the investigating agency has failed to tender any explanation as to why independent witnesses were not joined in the investigation. He has argued that police witnesses have presented contradictory versions about the presence of public persons at the spot. He has submitted that the prosecution's version that the alleged fifth accomplice of accused persons managed to flee from the spot is not believable. He has argued that it is unbelievable that despite presence of so many police officials, the fifth accomplice fled away from the spot. He has argued that even if the testimonies of the police witnesses are taken to be correct, still, the charges of making preparation for committing dacoity is not established. He has contended that atmost, the conduct of the accused persons can be taken as planning but it falls short of preparation as conceived under Section 399 of IPC. He has argued that there are discrepancies in the documents, which were prepared at the spot. He has mentioned that the seal of the sealed case property was not handed over to an independent person. He has submitted that the seal remained with the police officials and under these circumstances, the possibility of planting of the case property cannot be ruled out. He has argued that the departure and arrival entries of the police officials have not been proved. He contended that the prosecution has failed to examine Inspector Ashok FIR No.837/1999 State Vs Baij Nath & Ors. Page 13 of 36 Tyagi and Assistant Sub-Inspector Charan Singh, who were crucial witnesses and on account of their non-examination, adverse inference needs to be drawn. He has submitted that there are apparent discrepancies in the testimonies of the police officials and a conviction cannot be based on their testimonies unless it finds corroboration from some independent source. Counsel has contended that accused had no knowledge that a proclamation under 82 Cr.P.C was issued against him. On the force of these submissions, prayer has been made by the counsel that accused should be acquitted.
10. On the other hand, Additional Public Prosecutor has argued that the prosecution's case stands proved beyond reasonable doubt. He conceded to the argument of defence that there are contradictions in the testimonies of police witnesses but tendered an explanation that the contradictions are only minor and they do not affect the outcome of trial. He has submitted that minor contradictions in the testimonies of witnesses are bound to occur and such contradictions cannot be termed as fatal. He has submitted that accused persons were apprehended in the middle of the night from an isolated spot and under these circumstances, there was hardly any possibility of joining independent witnesses. He has submitted that the members of the raiding party have corroborated the statement of each other and all of them have deposed on similar lines. He has submitted that FIR No.837/1999 State Vs Baij Nath & Ors. Page 14 of 36 although there are some infirmities in the investigation but the accused does not stand to gain advantage because of the alleged discrepancies. He has submitted that prosecution's case cannot be doubted merely because it is based on the testimonies of police witnesses. He has submitted that the testimony of a police witness needs to be treated at-par with the testimony of any other witness. He has submitted that accused persons were found making preparations of dacoity and weapons were also recovered from their possession. He has submitted that a loaded firearm with a live cartridge was recovered from the possession of Madan. He submitted that accused persons gathered in jungle, opposite the Fire Station of Nihal Vihar, in the middle of the night and they have failed to explain the purpose of their meeting. He has argued that the failure of the accused persons points in the direction that they have gathered at the spot only for the purpose of making preparation of dacoity. He has contended that accused persons have failed to tender any explanation about their presence at the spot and therefore, adverse inference needs to be drawn. He has submitted that all the documents/seizure memos have been duly proved and the testimonies of prosecution witnesses have remained unblemished. He has submitted that there is no material contradiction in the testimonies of prosecution witnesses which may create doubt over the authenticity or the veracity of the prosecution's case and all the documents have been FIR No.837/1999 State Vs Baij Nath & Ors. Page 15 of 36 duly proved.
Brief reasons for decision
11. I have perused the testimonies of the witnesses as well as other material on record.
12. In the present matter, the entire case of the prosecution rested on the testimonies of police witnesses. It is the case of the prosecution that while the police party was patrolling the area of Nihal Vihar, one of them (Head- Constable Satyapal) received a secret information that accused and the members of his gang have gathered in jungle opposite Fire Station of the local area. It has been stated that after receiving this information from the secret informer, Head-Constable Satyapal shared it with Inspector Ashok Tyagi, who directed Sub-Inspector Raj Kumar to constitute a raiding party. On the directions of Inspector Ashok Tyagi, Sub-Inspector Raj Kumar constituted a raiding party and subsequently split this raiding party into four teams and each team took position in a particular direction and surrounded the bushes, where the accused persons were making preparation of dacoity. The testimonies of the police witnesses need to be read and appreciated in this backdrop.
13. Record shows that the members of the raiding team have deposed more or less on similar lines in their examination-in-chief. In fact, each one of them has narrated in a parrot like fashion almost similar chain of events in FIR No.837/1999 State Vs Baij Nath & Ors. Page 16 of 36 examination-in-chief, however, serious discrepancies and contradictions cropped up in their cross-examination. There are glaring discrepancies in the testimonies of police officials, which put question mark over the credibility of their statements. Contradictions are visible about the time when the patrolling party left their office. PW-10/Sub-Inspector Raj Kumar stated in cross-examination that police party started the patrolling duty at around 09:00 PM and they reached at the bridge of Nihal Vihar at around 11:00 PM whereas PW-1/HC Deep Kumar stated in cross- examination that the police party left the office at around 10:30 PM and reached at the bridge of Nihal Vihar within 30 minutes. PW-9/Constable Anil Sharma also stated in cross-examination that the police party reached at the bridge of Nihal Vihar within 30 minutes after starting from the office. If the version of HC Deep Kumar is accepted then the police party left the office at around 10:30 PM and reached the area of Nihal Vihar within 30 minutes at 11:00 PM. On the other hand, if the version of PW- 10/Sub-Inspector Raj Kumar is accepted, the police party left the office at 09:00 PM. PW-10/Sub-Inspector Raj Kumar stated in cross-examination that after leaving the office, the patrolling party first went to Raghubir Nagar then to Paschim Puri and from there to Paschim Vihar and thereafter, the patrolling party reached at the bridge of Nihal Vihar. In case, the version of other police witnesses is accepted, it conveys that the FIR No.837/1999 State Vs Baij Nath & Ors. Page 17 of 36 police party reached Nihal Vihar straight from the office, whereas, in case, the version of Sub-Inspector Raj Kumar is accepted, it means that the police party left the office at around 09:00 PM and visited number of places before finally reaching Nihal Vihar, where secret informer met them and disclosed about the accused persons. It is not possible to reconcile these contradictions.
14. Contradictory versions have come on record about the attire of the members of the raiding party. PW-3/Head Constable Bajrang stated in cross-examination that all the members of the raiding party were in police uniform while on the other hand, PW-9/Constable Anil Sharma, who was also a member of the raiding party, has deposed in cross-examination that all the police officials were in civil dress. PW-10/Sub-Inspector Raj Kumar stated that the police officials were in plain clothes. Discrepancies have also come on record about the names of those police officials who overheard the accused persons talking and making preparation of dacoity. PW-7/Assistant Sub-Inspector Satyapal Singh has deposed that the conversation was overheard by Sub-Inspector Raj Kumar and thereafter, he apprised the members of the raiding party that accused persons were planning to commit dacoity. On the other hand, PW-8/Constable Rohtash mentioned that the conversation was over-heard by Assistant Sub- Inspector Charan Singh and Sub-Inspector Raj Kumar while PW- FIR No.837/1999 State Vs Baij Nath & Ors. Page 18 of 36 9/Constable Anil Sharma has deposed that the conversation was over- heard by Assistant Sub-Inspector Charan Singh only. PW-10/Sub- Inspector Raj Kumar deposed that he and Assistant Sub-Inspector Charan Singh overheard the conversation between the accused persons while he mentioned in cross-examination that the conversation was overheard by him only. These contrasting versions about the persons, who overheard the conversation of the accused persons, raise doubt over the presence of the police officials at the spot.
15. Further, record depicts that the police officials made no effort to join public witness at any stage of investigation. Statutory desirability in the manner of search and seizure is that there should be support from unbiased and neutral corners. Search before and independent witness imparts much more authenticity and credit worthiness to the search and seizure proceedings. Such safeguards are intended to avoid criticism of arbitrary and high-handed action against police officers. This is to lend credibility to the procedure relating to the search and seizure. Indubitably, if the evidence of the official witnesses is found to be credible and reliable, same alone can prove to be the foundation for conviction and normally, prosecution case cannot be thrown away straightaway merely because the chief plank of the defence is that of absence of public witness. However it puts the court on guard and in such a situation, the testimonies FIR No.837/1999 State Vs Baij Nath & Ors. Page 19 of 36 of official witnesses are liable to be scrutinised with extra caution. Simultaneously, prosecution has to offer satisfactory explanation for not associating independent witnesses and more so, when they were available right at the elbow. In such a situation, court would be fully justified in finding out the reason as to why no independent person came forward and whether the investigating agency did it best to persuade independent person. In the case of "Pawan Kumar Vs Delhi Administration" 1989 Crl. LJ 127 Delhi, it has been held as under :
"Admittedly, there is no impediment in believing the version of the police officials but for that the prosecution has to lay a good foundation. At least one of them should have deposed that they tried to contact the public witnesses or that they refused to join the investigation. Here is a case where no effort was made to join any public witness even though number of them were present. No plausible explanation from the side of the prosecution is forthcoming for not joining the independent witnesses in case of a serious nature like the present one. It may be that there is an apathy on the part of the general public to associate themselves with the police raids or the recoveries but that apart, at least the IO should have made an earnest effort to join the independent witnesses. No attempt in this direction appears to have been made and this, by itself, is a circumstance throwing doubt on the arrest or the recovery of the knife from the person of the accused."FIR No.837/1999 State Vs Baij Nath & Ors. Page 20 of 36
16. Even when police come across any such offender by chance, it should not waste even a single second to call for corroboration from independent source. Onus would be on the prosecution to establish that the association of such persons was not possible on the facts and circumstances of a particular case. The search before an independent witness would impart much more authenticity and creditworthiness to the search and seizure proceedings. It would also strengthen the prosecution case. The said safeguard is also intended to avoid criticism of arbitrary and highhanded action against police officers. This is to lend credibility to the procedure relating to search. That being so, the authorized officer must follow the reasonable, fair and just procedure scrupulously and the failure to do so must be viewed with suspicion. The legitimacy of the judicial process may come under cloud if the Court is seen to condone acts of violation of such safeguards which may also undermine respect for law.
17. In the present matter, there are discrepancies in the testimony of police witnesses about the presence of the public witnesses and the efforts made by them to join independent witnesses. It is not that invariably, the testimonies of police of witnesses should be discarded when it is not corroborated from an independent source. What is called for is that atleast, sincere effort should have been made by police officials to join public witnesses. Record must demonstrate that genuine efforts were made to FIR No.837/1999 State Vs Baij Nath & Ors. Page 21 of 36 join public witnesses at the time of recovery otherwise, the provision of Section 100(4) of Cr.P.C would be redundant. In the present case, record does not suggest that any effort was made by the police officials to join independent witnesses at any stage of investigation. Rather, contradictory versions have come on record about the presence of public persons and the efforts made to join them.
18. PW-8/Constable Rohtash stated in cross-examination that the raiding party apprehended the accused persons in late night hours and therefore, no public person could be joined in the investigation. He conveyed in cross- examination that no public person was available at the spot at the time when the accused persons were apprehended as it was late in the night. On the other hand, PW-6/Constable Ranbir Singh stated in cross-examination that Investigating Officer asked some public persons to join investigation but all of them refused and left the spot without disclosing their names or addresses. He stated in cross-examination that no written notice was served on those public persons who refused to join the investigation. PW- 9/Sub-Inspector Raj Kumar (first Investigating Officer) has contradicted this version. He stated in cross-examination that he did not approach any public person to join investigation. He mentioned that no public person was seen at the spot at the time when the proceedings were carried out. It is not possible to reconcile these contradictory versions. On the one hand, FIR No.837/1999 State Vs Baij Nath & Ors. Page 22 of 36 a member of the raiding party (Constable Ranbir Singh) stated that public persons were present at the spot and the Investigating Officer requested those public persons to join the investigation while on the other hand, the Investigating Officer has denied the presence of public persons at the spot. Sub Inspector Raj Kumar stated in cross-examination that after receiving information from the secret informer, he did not make efforts to join public persons in the investigation. At this point of time, it could be understood that on account of urgency, the police officials did not consider it necessary to waste time in finding a public witness and joining him in the investigation but the record shows that even after the accused persons were apprehended and the alleged recovery of weapons was made from them, police officials made no efforts to join public witnesses. Sub- Inspector Raj Kumar stated in cross-examination that no public person was seen at the spot while he was carrying out the proceedings in the present matter. It is the admitted case of the prosecution that the place from where the accused persons were apprehended was opposite to a Fire Station. It has also come on record that there were residential quarters near the Fire Station. Sub-Inspector Raj Kumar has admitted this fact in cross-examination. He mentioned that although, there were residential quarters near the Fire Station but no one was living in those quarters. He has deposed this fact without knowledge. He has failed to explain as to on FIR No.837/1999 State Vs Baij Nath & Ors. Page 23 of 36 what basis he came to the conclusion that no one was residing in those quarters. His testimony clearly suggests that he made no efforts to ascertain if any officer was available on duty at the Fire Station or the security guard or watchman was on duty. It is one thing to say that no public person was found present at the spot and it is an all together different thing to demonstrate that efforts were made to join public witnesses but no one was found present. Record clearly suggests that Sub- Inspector Raj Kumar made no efforts to join public witnesses. It is the prosecution's case that after registration of FIR, Sub-Inspector Ashok Kumar (Second Investigating Officer) went to the spot and carried out further investigation. Record shows that even Sub-Inspector Ashok Kumar made no efforts to join public witnesses. He stated in cross-examination that he did not make efforts to call anyone from the Fire Station because it was early morning hours. He tried to cover up his inaction by stating that he did not consider it necessary to bother anyone at the Fire Station merely because it was early morning hours. This explanation appears to be a hopeless attempt to wriggle out of the fact that he made no efforts to join public witnesses. Although, Constable Ranbir Singh stated in cross- examination that public witnesses were requested to join the investigation but they refused and left the spot without disclosing their names and addresses but the said explanation does not inspire confidence. It is an FIR No.837/1999 State Vs Baij Nath & Ors. Page 24 of 36 admitted position that police officials apprehended the accused persons at around 11:30 PM and they remained at the spot till around 06:00 AM. It is strange and surprising that for about 7-8 hours, the investigating agency was not able to associate even a single independent witness at any stage of investigation. Apparently, the investigating agency was not interested to make any independent witness to be a part of the investigation. All these facts does cast doubt over the prosecution's case and on the alleged recovery of firearm from the possession of accused Madan.
19. Now, let us analyse if the prosecution has been able to prove that accused Madan committed the offences under Section 399 & 402 of Indian Penal Code. It needs to be seen if the ingredients of the said offences have been proved by the prosecution or not. However before doing so, it is necessary to refer to the case law on the subject. The Apex Court observed in the case of "Chittoor Yadav Vs State of Bihar", 1970 (9) SCC 502;
".... the court below has drawn the inference that the appellants were guilty under both the offences merely from the fact that they had assembled at a lonely place at 09:00 PM and could give no explanation for their presence at that order of the night. The advocate for accused had canvassed his argument, that taking the prosecution's case at its face value, there is no evidence to show that the accused have assembled for the purpose of committing dacoity or they had made any preparation for committing the same. The requirement of Section 402 IPC is that five or more persons FIR No.837/1999 State Vs Baij Nath & Ors. Page 25 of 36 must have assembled for the purpose of committing the dacoity. Apart from the fact that the appellants are said to have been found present on the first storey of an abandoned building, there is no evidence that this assembly of the appellants was for the purpose of committing dacoity. The trial court has merely drawn inference that the said assembly was only for the purpose of committing dacoity".
20. The Apex court further observed in "Chittoor Yadav case (supra)" that mere assembly of five or more persons at a deserted place with weapons is not sufficient to hold that the accused persons have committed offences falling within the ambit of Section 399 and 402 of IPC until by direct or circumstantial evidence, purpose of the assembly is proved. The court acquitted the accused in this case by observing that nothing was brought on by the prosecution that the accused persons were making preparation or have gathered for the purpose of committing the dacoity.
21. Coming to the present matter, PW1/Head-Constable Deep Kumar deposed that the raiding party splited into four teams/groups and each team surrounded the bushes from different direction. He mentioned that Sub Inspector Raj Kumar and Assistant Sub-Inspector Charan Singh approached the bushes from the eastern side and started listening to the conversation of the accused persons. He mentioned that after sometime, Sub-Inspector Raj Kumar gave a signal to the other members of the raiding party and on his signal, the members of the raiding party FIR No.837/1999 State Vs Baij Nath & Ors. Page 26 of 36 apprehended the accused persons. He has not deposed that he either himself overheard the accused persons making preparations of dacoity or that the conversation was overheard by any other police personnel. In so far as his testimony is concerned, it is of no use for establishing the aspect that accused persons were making preparation of dacoity. PW-2/Sub- Inspector Jai Kishan has also deposed on the same lines mentioning that the conversation of the accused persons was overheard by Sub-Inspector Raj Kumar and Assistant Sub-Inspector Charan Singh. On the other hand, PW-3/Head-Constable Bajrang kept silent on the aspect as to who overheard the conversation of the accused persons. PW-6/Constable Ranbir Singh also remained silent on this aspect. He simply stated that the raiding team surrounded the bushes from different directions and after sometime, Sub-Inspector Raj Kumar warned the accused persons to surrender. He conveyed that after the warning given by Sub-Inspector Raj Kumar, the members of the raiding party apprehended the accused persons. He has not deposed that Assistant Sub-Inspector Charan Singh and Sub-Inspector Raj Kumar overheard the accused person talking/making preparations of dacoity. PW-7/Assistant Sub-Inspector Satyapal came up with the version that it was only Sub-Inspector Raj Kumar who heard the conversation of the accused persons. He mentioned that Sub-Inspector Raj Kumar overheard that the accused persons were FIR No.837/1999 State Vs Baij Nath & Ors. Page 27 of 36 talking and planning to commit dacoity. He has not deposed that the conversation was also overheard by Assistant Sub-Inspector Charan Singh. PW-8/Constable Rohtash has deposed that Assistant Sub-Inspector Charan Singh and Inspector Raj Kumar overheard the accused persons talking and making preparation of committing dacoity at Ambika Vihar. He mentioned that the accused persons were talking amongst each other that one of them would keep a watch outside the house while the others would enter the house. PW-9/Constable Anil Sharma has deposed that it was Sub-Inspector Charan Singh, who overheard the conversation of the accused persons. He has not mentioned that the conversation was also overheard by Sub-Inspector Raj Kumar or other members of the raiding party. PW-10/Sub-Inspector Raj Kumar has deposed that the conversation was overheard by him and Assistant Sub-Inspector Charan Singh. He mentioned that the accused persons were planning to commit dacoity at a house in Ambika Vihar and Assistant Sub-Inspector Charan Singh also overheard this conversation. These contradictions puts doubt over the prosecution's story that the members of raiding team heard that accused persons were making plans to commit dacoity. Further, the prosecution did not examine Assistant Sub-Inspector Charan Singh and this gives rise to an adverse inference.
22. The prosecution was under the obligation to establish that the assembling FIR No.837/1999 State Vs Baij Nath & Ors. Page 28 of 36 of the accused persons was for making preparation to commit dacoity. In other words, the prosecution was under obligation to show that there were persons who had conceived the design of committing dacoity and they were making preparing for implementing that design, which is failing in the present case. Only because the accused persons were found present in the jungle and weapons have been recovered from them, it cannot be held that they had assembled there for preparation to commit dacoity. It is true that so far as the offence under Section 402 IPC is concerned, it may be mentioned that the Section can be applied to mere assembling without proof of preparation. The offence under Section 402 of IPC is complete as soon as five or more persons assemble together for the purpose of committing dacoity. In the present case, it is not in dispute that, at the spot, only four persons were apprehended. It is the prosecution's case that the leader of the gang managed to slip away from the spot. Now, this version of the prosecution is unbelievable. The facts depicted from the record shows that there were around 10 police officials in the raiding team. The members of the raiding team have deposed that Sub-Inspector Raj Kumar had split the raiding team into four parts and each team was deployed to surround and cover the bushes from different direction. The prosecution witnesses have deposed that on the directions of Sub- Inspector Raj Kumar, the raiding teams took position in various directions FIR No.837/1999 State Vs Baij Nath & Ors. Page 29 of 36 and surrounded the bushes where the accused persons were sitting and making preparations for the dacoity. In these circumstances, it is highly unlikely that the fifth member of the gang managed to slip away from the spot. The police witnesses have simply narrated in a parrot like fashion that the fifth member of the gang slipped away from the spot. None of them has deposed as to if the fleeing member was chased. Their testimonies are totally silent on the aspect of the efforts made by them to chase and apprehend the fifth member of the gang. There is nothing on record which could show that efforts were made to chase and apprehend the fifth member of the gang.
23. The case of prosecution is full of improbability. It is not believable that the accused persons were talking and making preparation of the dacoity so loudly they could be over-heard by the police officials. In a similar case, the Punjab & Haryana High Court in "Bagga @ Bangu Vs State of Haryana" (Criminal Appeal No.183-SB of 2003 decided on 23.02.2011) commented; "It is improbable that after the secret information was received till the police party reached the spot, the accused were continuing to repeat their plan. It is also very improbable that at the very nick of the moment, when the police party reached at the spot, the accused started the conversation". Similar view has been expressed by the same High Court in "Piru & Anr. Vs State of Haryana" (Criminal Appeal FIR No.837/1999 State Vs Baij Nath & Ors. Page 30 of 36 No.1808-SB of 2002 decided on 07.01.2015). In "Suleman Vs State of Delhi (through Secretary)" 1999 CLJ 2525 SC which was the case of Section 399/402 IPC, the Supreme Court observed that it was doubtful that accused would be speaking so loudly about dacoity plan that police personnel standing outside a room could hear them. As observed earlier, regarding recovery of weapons from the accused, the Supreme Court had observed in "Chaturi Yadav & Anr." (supra) that mere fact that accused persons were found at 01.00 AM with some of them armed with guns did not prove that they have assembled there for the purpose of committing dacoity or for making preparation to accomplish that object. It has been observed by the Supreme Court in "Jasbir Singh @ Javari Aka Jabar Singh Vs State of Haryana" (Criminal Appeal No.554 of 2015, decided on 06.04.2015) that it is not natural that six accused, four of whom were armed with weapons, neither offered any resistance nor caused any injury to any of the police personnel before they were apprehended by the police.
24. It is the case of prosecution that the raiding team apprehended the accused persons and seized weapons recovered from their possession. It has been alleged that an iron rod was recovered from Dhara Singh while an iron hammer and broken cycle chain were recovered from Om Prakash. It has been stated that Baig Nath was found in possession of a wooden stick while a loaded country-made pistol alongwith live cartridge was FIR No.837/1999 State Vs Baij Nath & Ors. Page 31 of 36 recovered from Madan. The weapons recovered from the possession of accused persons were seized vide different seizure memos and they were kept in sealed pullandas. PW-1/Head Constable Deep Kumar has stated in cross-examination that Head-Constable Satyapal prepared the sketch of the revolver and live cartridges and thereafter, kept them in a parcel and sealed them with the seal of 'HPS'. Admittedly, no efforts were made to hand over the seal after use to an independent public person and in such cases, in view of the law laid down in the judgment titled as "Saifullah Vs State" 1998 (1) CCC 497 (Delhi) and "Abdul Gaffar Vs State" 1996 JCC 497 (Delhi), benefit of doubt has to be given to the accused. To add to it, there are apparent contradictions in the testimony of police officials. There are number of infirmities and missing links which create doubt about the prosecution's story. It is also observed that departure and arrivals of the police officials of the police station have not been proved to lend credence to the version of the prosecution.
25. It is the case of prosecution that all the seizure memos were prepared before the rukka was dispatched from the spot. PW-2/Sub-Inspector Raj Kumar has conveyed that the seizure memos were prepared at the spot before he dispatched the rukka through Constable Anil. He has deposed that Constable Anil took the rukka to the police station and returned to the spot at around 02.00 PM alongwith copy of original FIR. He has deposed FIR No.837/1999 State Vs Baij Nath & Ors. Page 32 of 36 that thereafter, Assistant Sub-Inspector Ashok Kumar arrived at the spot and carried out further investigation. PW-3/HC Bajrang conveyed in cross-examination that some documents were prepared at the spot and some were prepared later on at the police station. On the other hand, PW- 8/Constable Rohtash stated in cross-examination that after recording of his statement, no other proceeding was done at the spot. Record shows that the FIR number finds mentioned on the seizure memos which were alleged prepared at the spot before registration of FIR. I have perused these documents. On these documents, FIR number has been mentioned. Admittedly, these documents were prepared before registration of FIR. When documents/seizure memos were prepared before registration of FIR and they contains the FIR number, then inference has to be drawn that either FIR was recorded prior in time or the documents were prepared later on and in such cases, benefit of doubt has to be given to the accused. Reliance in this regard can be placed on the decision in "Zofar Vs State"
2000 (II) AD Delhi 137 and "Kailash @ Kuddu Vs State of Delhi" 2000 (1) JCC Delhi 162.
26. In a criminal trial, the prosecution is duty bound to prove the charges against the accused by leading independent and cogent evidence. The standard of proof required is not preponderance of probability but proof beyond reasonable doubt on the basis of reliable evidence. It is a settled FIR No.837/1999 State Vs Baij Nath & Ors. Page 33 of 36 legal preposition that in case of any doubt, the benefit has to be given to the accused. In the present matter, the prosecution's case is full of improbabilities. The police officials made no effort to join public witnesses at any stage of the investigation. Contradictory versions have been tendered about the presence of independent witnesses and the efforts made to join them. The recovery of the weapon has not been proved. The weapons were sealed but the seal was not handed over to an independent person. The major part of the investigation was done by Sub-Inspector Raj Kumar, who is also the complainant in the present case. There are discrepancies in the seizure memos and it is doubtful whether the seizure memos were prepared at the spot or at the police station. All these circumstances lead to inescapable conclusion that prosecution has failed to establish its case beyond reasonable doubt. Accordingly, accused Madan stands acquitted of the offences under Section 399 & 402 IPC.
27. Record shows that charge under Section 174A IPC was also framed against the accused as he was declared to be a proclaimed offender. I have gone through the proceedings whereby the accused was declared to be proclaimed offender. It is found that the proclamation under Section 82 Cr.P.C was published on 08.06.2003 and the accused was directed to appear in court on 01.07.2003. Ld. Predecessor Court recorded the statement of the Process Server on 01.08.2003 and declared the accused to FIR No.837/1999 State Vs Baij Nath & Ors. Page 34 of 36 be proclaimed offender. There is an apparent defect in the publication of proclamation as statutory gap of 30 days was not complied with. Although, Section 82 (3) Cr.P.C states that a statement in writing by the court issuing the proclamation to the effect that proclamation was duly published on a specified date, in the manner specified in Clause (I) of (2) shall be conclusive evidence that the requirements of the Section have been complied with and that the proclamation was published on such date, however, there is an error apparent on the face of the record that the publication was defective as statutory gap of 30 days was not complied with. The said error does not get cured merely because the Predecessor Court over-looked it and declared the accused as a proclaimed offender. This interpretation of Sub-Section (3) of Clause 82 would render Sub- Section 83 (1) useless. This could never be the intention of the legislature. The Hon'ble High Court of Delhi has held in "Sunil Tyagi Vs Govt. of NCT of Delhi & Anr." in Crl. (Misc.) No.4438/2013, decided on 07.01.2021 that since the declaration of a person as a proclaimed offender has far reaching consequences provided under Section 174A IPC, therefore, the provisions of Section 82 Cr.P.C needs strict interpretation. In the present matter, the accused stands acquitted for the main offences under Section 399 & 402 IPC. I am of the considered opinion that since, the publication of proclamation of process issued under Section 82 Cr.P.C FIR No.837/1999 State Vs Baij Nath & Ors. Page 35 of 36 was defective, therefore, the accused cannot be convicted for committing offence under Section 174A IPC. Accordingly, accused Madan also stands acquitted of the offence under Section 174A IPC.
28. File be consigned to Record Room after necessary compliance. Announced in open Court on 05.03.2021 (Sudhanshu Kaushik) Addl. Sessions Judge, West District, Tis Hazari Courts, Delhi It is certified that this judgment contains Thirty-Six (36) pages and each page bears my signatures.
(Sudhanshu Kaushik) Addl. Sessions Judge, West District, Tis Hazari Courts, Delhi FIR No.837/1999 State Vs Baij Nath & Ors. Page 36 of 36