Delhi District Court
State vs . on 27 February, 2012
IN THE COURT OF SH. RAKESH TEWARI ASJVI(OUTER),
ROHINI COURTS, DELHI
SC NO.58/10
FIR NO.329/05
U/S 307/186/353/411/34 IPC & 25 Arms Act
PS Paschim Vihar
Unique Case ID No. : 02404R0008682009
State
Vs.
1. Raj Kumar
(declared Proclaimed Offender on 13.03.2009)
2. Jugnu s/o Bal Raj Singh
r/o 644B, Main Bus Stand wali gali,
Mundka, Delhi.
3. Neeraj Kumar s/o Ram Saroop
r/o Village Kulwadi, PS Kunj Pura,
Karnal (Haryana).
A N D
SC NO.59/10
FIR NO.116/05
U/S 379/411/34 IPC
PS Prasad Nagar
Unique Case ID No. : 02404R0007482009
SC No.58/10 & 59/10 Page 1/19
State
Vs.
1. Raj Kumar (Proclaimed Offender)
2. Jugnu s/o Bal Raj Singh
r/o 644B, Main Bus Stand wali gali,
Mundka, Delhi.
Date when committed to the court of Sessions :05.08.2005 & 06.10.2005
Date when case reserved for judgment : 17.02.2012
Judgment pronounced on : 27.02.2012
JUDGMENT:
1. By this common order, I shall dispose of the said two cases as after framing of charge on 31.10.2005 in both the cases, my Ld. Predecessor ordered for the consolidation of both the said cases and it was directed that evidence shall be recorded in FIR no.329/05, PS Paschim Vihar.
2. The case of the prosecution in brief, so far as FIR no.116/05 of PS Prasad Nagar is concerned, is that on 18.04.2005, DD No.8A, was recorded at PS Prasad Nagar that a maruti car bearing No.DL9C2767 of white colour was found missing from the front of M/s Pawar Dry Cleaners and accordingly this DD was marked to SI Ajay Pal Singh, who reached the spot situated at Padam Singh Road SC No.58/10 & 59/10 Page 2/19 at the shop of M/s Pawar Dry Cleaners, Bapa Nagar, Delhi, near Police Booth, but he could not find any complainant, and he inquired from the PCR regarding the owner of the said car and it was disclosed that the said car belonged to the ACP of PCR Sh. Gurmukh Singh, who had come there at the said spot to meet his relatives and parked his car in front of said shop of Dry Cleaning and when he came back, he found his said car missing and the said ACP gave the information to PCR from his mobile phone no.9868267555 and accordingly, SI Ajay Pal Singh made an endorsement below the said DD No.8A and got the FIR registered u/s 379 IPC.
3. During the investigation of the said FIR No.116/05, the statement of the ACP was recorded and at his instance the site plan was prepared and copy of the RC of the said car was taken on the record. On 26.04.2005, DD No.16A was received at PS Prasad Nagar from SI Kuldeep Singh of PS Paschim Vihar that two accused namely Raj Kumar @ Kala and Jugnu were arrested at PS Paschim Vihar vide FIR no.329/05, who disclosed regarding the theft of the said car by them and they were found in possession of the said car and this information was passed on to said SI Ajay Pal, who reached PS Paschim Vihar and obtained the copies of the disclosure statements and pointing out memo and took possession of the said car and got it transmitted to the Malkhana of PS Prasad Nagar and SC No.58/10 & 59/10 Page 3/19 subsequently one SI Jai Pal, on 02.05.2005, arrested both the accused after taking permission from the concerned court of MM and accordingly, the charge sheet against both the said accused u/s 379/411/34 IPC was filed.
4. So far as facts of the case FIR no.329/05 of PS Paschim Vihar are concerned, on 25.04.2005, Inspr. Narender Chawla received a secret information by a secret informer that some persons would come to District Park Paschim Vihar in a stolen car with intention to commit robbery and would be in possession of illegal arms and this information was reduced to writing in DD no.14A, which was given to SI Vipin Kumar with a direction to take necessary action and accordingly, SI organized a raid party consisting of himself, SI Vijay Singh, SI Tej Pal, HC Ashok Kumar, HC Ved Prakash, Constables Virender, Dharambir, Satyawan, Umesh Kumar, Dipender and along with the secret informer, the said raid party, in private vehicles, reached the said District Park Paschim Vihar at about 12.45 p.m where the said SI Vipin Kumar requested 4/5 passersby to join the raid party but none came forward and thereafter the raid party was briefed and deployed at the main gate of District Park, Vehicle Parking and at about 12.55 p.m, one maruti car bearing No.DL9C 2767 came in the parking and stopped, out of which three persons came out, who went to the said District Park and met with a person who was already sitting in the park and started talking to him and at SC No.58/10 & 59/10 Page 4/19 that time, at the pointing out of the secret informer, the said raid party cordoned those four persons, who, looking at the police party, started running away hither and thither but SI Vipin Kumar chased them along with the said raid party and in the meantime, one person out of the said four persons, took out a country made pistol from the dub of his pyjama and fired a shot at SI Vipin Kumar, who saved himself from the said fire and with the help of HC Ved Prakash and Ct. Virender, overpowered the said person and snatched the country made pistol from his hand whose name transpired as Raj Kumar @ Raju @ Kala and on whose search, from the left side pocket of his kurta, four live cartridges were recovered and in the meantime, SI Vijay Singh along with HC Ashok Kumar, Ct. Satyawan, apprehended accused Jugnu, from whose search, from the right dub of the pant, one loaded country made pistol and from right side pocket of his pant two live cartridges were recovered and SI Tej Pal along with Ct. Dharambir and Ct. Umesh Kumar, apprehended accused Neeraj from whose search, from the right dub of the pant, one button actuated knife was recovered and the fourth person managed to escape, whose name transpired as Ramesh @ Guddu.
5. Thereafter, the sketches of the said recovered fire arms and ammunition and weapon were prepared and the same were seized after sealing the same with the seal of VK and thereafter FSL form was filled up and accused were interrogated with regard to the said SC No.58/10 & 59/10 Page 5/19 maruti car, who disclosed that accused Raj Kumar along with accused Jugnu had committed theft of the said car from the area of PS Prasad Nagar and inquiry was made from PS Prasad Nagar from where it transpired that said car was found stolen regarding which FIR No.116/05 was found registered at the said PS and thereafter the said car was also seized and FIR was got registered by SI Vipin Kumar and the investigation was entrusted to SI Kuldeep Singh.
6. During investigation, SI Kuldeep Singh prepared the rough site plan at the instance of SI Vipin Kumar, recorded the statements of witnesses, arrested the three accused and recorded their disclosure statements and the said fire arms and ammunition were sent to FSL Rohini and subsequently result of the same was placed on record and sanction u/s 39 of the Arms Act and complaint u/s 195 Cr.PC for taking cognizance of offence u/s 186 IPC was obtained and placed on record and the charge sheet was filed against the accused.
7. On the basis of the said evidence and the charge sheet my Ld. Predecessor, vide his order dated 31.10.2005, framed charge against all the accused u/s 186/353/34 IPC, a separate charge u/s 307 IPC & 25/27 Arms Act against accused Raj Kumar, separate charges u/s 25 of the Arms Act against accused Jugnu and Neeraj Kumar in case FIR No.329/05, PS Paschim Vihar and a charge u/s 379/411 IPC against all the accused in case FIR No.116/05, PS Prasad Nagar, to SC No.58/10 & 59/10 Page 6/19 which they pleaded not guilty and claimed trial. It seems that inadvertently my Ld. Predecessor also framed charge u/s 379/411 IPC against accused Neeraj Kumar also but on the perusal of the charge sheet of FIR no.116/05, PS Prasad Nagar, only two accused namely Raj Kumar and Jugnu were involved.
8. Accused Raj Kumar was declared Proclaimed Offender during the trial on 13.03.2009.
9. The prosecution, in order to prove both the said cases, has produced as many as 18 witnesses, relevant of which have been discussed below.
10. The statements of the accused u/s 313 Cr.PC were recorded wherein they pleaded their innocence and denied the incriminating evidence against them as false and examined Sh. Sukhbir Singh, Sh. Jai Narayan and Sh. Balraj as DW1, DW2 and DW3 respectively in their defence, who deposed that on 25.04.2005, at 7 p.m, SI Vipin Kumar, who was previously posted at PS Nangloi, along with 2/3 other persons, in civil uniform, came to them and inquired about the said three accused and picked up the accused Neeraj Kumar and Jugnu from their respective houses and later on, they came to know that both the accused were falsely implicated in the present cases.
11. I have heard Ld. APP for the state, Sh. D.S. Chaudhary, Adv. SC No.58/10 & 59/10 Page 7/19
for accused Jugnu and Sh. Surender Singh, Advocate for accused Neeraj Kumar and perused the record.
12. So far as case FIR no.116/05 is concerned, PW6 Retd. ACP Gurmukh Singh, proved the theft of the car and his report regarding the same and he proved the copy of the RC of the said car as Ex.PW6/A and he further deposed that he came to know that his said car was recovered vide case FIR no.329/05, PS Paschim Vihar, which he took on superdari vide superdaginama Ex.PW6/B and he proved the car as Ex.P1. Admittedly, PW6 is not the eye witness of the theft of the car and the car was stolen on 18.04.2005 nor he is the witness of the recovery of the car and there is no other eye witness who saw accused Raj Kumar or Jugnu committing theft of the said car. As such, there is no direct evidence against both the accused u/s 379 IPC.
13. Coming to the aspect of charge u/s 411 IPC, PW10 SI Vipin Kumar, PW11 ASI Ved Prakash, PW13 ASI Dipender Singh, who were the members of the raid party in FIR no.329/05, in their respective examination in chief, only deposed that a maruti car bearing No.DL9C2767 came at Vehicle Parking from which three persons alighted and went in the park towards the fourth person who was already sitting there. None of the said three witnesses deposed as to who was driving the said car and where the other accused were SC No.58/10 & 59/10 Page 8/19 sitting in the said car. Till the time the accused were apprehended, the said three witnesses, from their said deposition before the court, were not in a position to say as to who were the three persons who entered the park where the fourth person was sitting or that as to who was the fourth person sitting in the park. The result is that it will be a mockery of justice if we hold guilty any of the three accused namely Raj Kumar, Jugnu or Neeraj Kumar as the persons in possession of the alleged stolen car, if anyone out of the said three accused was the fourth person sitting inside the park. However, in the cross examination, PW10 SI Vipin Kumar, replied that accused Raj Kumar, who is PO, was the driver of the car, accused Jugnu was sitting by the side of the driver and accused Neeraj was waiting in the parking and Ramesh, who had absconded from the spot, was sitting on the back seat of the car. PW11, ASI Ved Prakash, in his cross examination replied that three persons, who alighted from the car, were named Raj Kumar, Jugnu and third one was Ramesh but still he did not tell as to who was driving the car and where other two persons were sitting inside the car. PW13 ASI Dipender Singh is still silent in his total deposition with regard to the said facts. The said answers given in the cross examination, with regard to respective position of the accused inside the car, should have been deposed by the said witnesses in their examination in chief because the said position of the accused inside the car, which was allegedly SC No.58/10 & 59/10 Page 9/19 stolen, would have decided the fate of their conscious possession of the said car as stolen one.
14. Now coming to the deposition of PW12, yet the fourth member of the raid party and a witness of alleged recovery of the said stolen car, he has improved and contradicted the other said three witnesses in his examination in chief itself when he deposed that at about 12.55 p.m, three persons came in a white maruti car No.DL9C2767 and parked the same in the parking of District Park and the said car was being driven by Raj Kumar and accused Jugnu was sitting by his side and third person namely Ramesh was sitting on the back seat of the car and they all three went inside the park where the fourth person, whose name transpired as accused Neeraj, was sitting.
15. So far as the law with regard to Section 411 IPC is concerned, it envisages an exclusive possession of the person in order to convict him for the said offence. Joint possession of the property, allegedly stolen, cannot be subject matter or ingredient of Section 411 IPC. We cannot say in the present case if there is an evidence that the said stolen car was in exclusive possession of any of the accused as the stolen property. The "possession" u/s 411 IPC is a conscious possession which is further supported by the words "having reasons to believe the same to be stolen" and this "possession" or "reasons" SC No.58/10 & 59/10 Page 10/19 must be proved by way of evidence and in the present case, there is no evidence that any of the accused was in conscious exclusive possession of the said car as stolen property or was having exclusive reasons for the same to be stolen. Even the very recovery of the car, in which the alleged said three accused were found sitting in the manner as given in the prosecution story, is doubtful, as discussed by me below.
16. Moreover, the presumption u/s 114, illustration (a) of the Evidence Act, cannot be drawn in this case because the theft allegedly took place on 18.04.2005 and recovery was allegedly effected on 25.04.2005 and the said recovery, due to the said long gap of time, cannot be termed as "soon after the theft". Hence, the accused Jugnu is acquitted of the charge u/s 411 IPC also.
17. Coming to the evidence of case FIR no.329/05, PW10 SI Vipin Kumar deposed the facts in his examination in chief with regard to the said raid party, firing by one of the accused, apprehension of the accused, recovery of firearms and knife from them and their seizure etc, as mentioned above while narrating the facts mentioned in the charge sheet, and he proved the sketches of the country made pistol and cartridges recovered from accused Raj Kumar as Ex.PW10/A and its seizure vide memo Ex.PW10/B and the sketch of the country made pistol and cartridges recovered from SC No.58/10 & 59/10 Page 11/19 accused Jugnu as Ex.PW10/C and its seizure vide memo Ex.PW10/D, the sketch of the button actuated knife recovered from accused Neeraj as Ex.PW10/E and its seizure vide memo Ex.PW10/F, the seizure of maruti car vide memo Ex.PW10/G and he further proved his rukka sent for registration of FIR as Ex.PW10/H and thereafter he deposed about subsequent IO namely SI Kuldeep coming to the spot who prepared the site plan at his instance as Ex.PW8/A and arrest of the accused, their disclosure statements and he identified the button actuated knife recovered from accused Neeraj as Ex.P1, the country made pistol as Ex.P2 and cartridges as Ex.P3/15 recovered from accused Raj Kumar, who is PO, and he further identified the country made pistol as Ex.P4 and cartridges as Ex.P5/13 which were recovered from accused Jugnu.
18. In his cross examination, PW10 replied that he remained at the spot till 5.15 p.m and he could not recollect the names of all the police officials who were present at the spot by that time. He replied that they reached the spot in two private vehicles, out of which one car belonged to SI Vijay Singh bearing No.3646 and another car was privately hired and he could not recollect as to who was sitting in which car but SI Vijay Singh was driving his own car and the other private car was being driven by the driver. He further answered that one car was parked in the parking area and the other car was stationed near the entry gate of District Park to obstruct the SC No.58/10 & 59/10 Page 12/19 movement of the vehicles. He admitted that opposite to the said District Park, one Satyam Banquet Hall was situated and area of the District Park was about 10 acres in which there was a lake and various huts were situated. He could not recollect about the exact number of the gates of the said park towards Ring Road. He replied that they went to the said park taking the route of Bhera Enclave and they entered in the park from the first gate falling when they entered from the side of Peera Garhi after taking Uturn. He admitted that there were gardeners in the park. He replied that the rukka was prepared by HC Ved Prakash at his dictation and only confessional statement was written by him at the instruction of the IO. He admitted that he was posted in PS Nangloi from the year 2001 to 2004 and that Village Mundaka falls within the jurisdiction of PS Nangloi. He admitted that a CBI raid was conducted on him. He further admitted that more than thousand persons commute in front of the said District Park in an hour by way of vehicle or by foot. He admitted that secret informer was present when the accused were apprehended. He replied that he was in Indica car when they went to District Park. He admitted that in the site plan, position of police officials was not shown. He could not tell after looking at the cartridges as to which was fired by accused and which was test fired at FSL. He has not shown the direction of the bullet fired at him in the site plan nor he sealed the said fired cartridges separately. He SC No.58/10 & 59/10 Page 13/19 admitted that he was in uniform. He did not ask any person from the DTC depot adjacent to the park nor any gardener or employee or guards of the park to join the investigation. He admitted that proceedings with regard to accused Jugnu and Neeraj were also conducted by him and not by SI Vijay Singh and SI Tej Pal.
19. PW11 ASI Ved Prakash deposed on the same lines on which PW10 has deposed. However, in his cross examination he could not tell about the registration number of the private vehicles in which the raid party reached the said spot but he maintained that one of the car belonged to SI Vijay Singh and he was in the said car belonging to SI Vijay Singh. He could not give the details of the members of the raid party travelling by which car. He admitted that there were huts and lake inside the park and on the one side of the park there was a DTC bus depot. He replied that they entered from the gate which was situated on the road just between Nagin Lake Apartments and Bhera Enclave but said Apartment and Enclave has not been shown in the site plan by the IO. He admitted that gardeners and the public persons present inside the park were not requested to join the raid party. He replied that rukka was taken by Ct. Dipender at about 3.30 p.m who came back at the spot with the copy of FIR at about 4.15 or 4.30 p.m along with SI Kuldeep Singh, IO. He maintained that site plan was prepared by him at the direction of SI Kuldeep Singh.
SC No.58/10 & 59/10 Page 14/19
20. PW12 SI Tej Pal, also deposed the facts on which PW10 and PW11 have deposed with the difference that in his examination in chief he deposed that the car was being driven by accused Raj Kumar and accused Jugnu was sitting by his side and third person namely Ramesh was sitting on the back seat of the car. However, in his cross examination on behalf of the accused, he admitted that no description of stolen vehicle was given to them by the SHO. Like PW10 and PW11, he also could not tell the number of gates situated in the said park. He admitted that they did not enter the park through the gate which opens towards Jawala Heri Market road which is on the North side and that they had entered the said park through the gate which was situated on Ring Road opposite the road between Nagin Lake Apartments and Bhera Enclave. He further answered that they reached District Park via Jawala Heri road and then to Ring Road and took Uturn from Peera Garhi Chowk and then they entered the main entrance gate of the said park. He could not tell if there were four entrance gates of the said park on which parking was available. He admitted that there were huts and lake in the center of the park and that there was a DTC depot and bus stand outside the said park. He replied that during the raid, the driver of the private Indica car, hired by the said raid party, remained inside the car parked in the parking.
21. PW13 ASI Dipender again deposed on the same lines on SC No.58/10 & 59/10 Page 15/19 which the said witnesses being the members of the raid party deposed and in his cross examination on behalf of the accused, he replied that he had not apprehended any of the accused. He admitted that there were more than one parking area in the said District Park and that there were more than one gate for entering the District Park and probably the gates were situated on three sides of the park. He answered that they entered the park from the gate towards Ring Road side which was the same gate where DTC bus depot was also situated near it. He replied that the said gate remained open permanently but the other gates used to be closed at its schedule time.
22. PW8 SI Kuldeep Singh was the subsequent IO who deposed regarding reaching the spot and preparation of the site plan at the instance of SI Vipin and taking possession of the parcels of the case property and the car and arrest of the three accused, recording of their disclosure statements, sending the information to PS Prasad Nagar with regard to recovery of the said car, depositing the case property at FSL Rohini, obtaining of complaint u/s 195 Cr.PC etc. However, in his cross examination, he replied that site plan Ex.PW8/A was not prepared in his hand which was prepared by HC Ved Prakash on his instructions at the instance of SI Vipin. He admitted that none of the document prepared during the investigation conducted by him was in his handwriting and the same SC No.58/10 & 59/10 Page 16/19 were only signed by him and the said documents signed by him were written by members of the raid party on his instructions to help him during the investigation. He could not tell, barring the site plan, as to in whose handwriting the arrest memos, personal search memos, disclosure statements, were written. He further admitted that statements of witnesses u/s 161 Cr.PC were also not in his handwriting.
23. PW15 Inspr. Narender Chawla deposed regarding receiving of secret information which was reduced to writing vide DD No.14A and sending a team of police officials, as mentioned above, along with the informer to take necessary action. However, in his cross examination, he admitted that the secret information did not disclose the number of criminals who would be visiting the said park.
24. From the said deposition of the said members of the raid party, such contradictions and inconsistencies have resulted which cannot be reconciled. Each of the said member of the raid party has given a different description of the place and gate from which the raid party allegedly entered the said park. None of them could give the description and registration number of the two private cars by which they went to the spot. Which member of the raid party was in which car could not be established by their said deposition and everyone has given a different account of the same. Similarly, it has SC No.58/10 & 59/10 Page 17/19 not been established on record as to who wrote the different documents in his handwriting, as per deposition of PW8 whereas PW11 claimed that disclosure statements were written by him at the spot but as per examination in chief of PW8, the disclosure statements were written at the PS and were in his handwriting. As per PW8, HC Ved Prakash (now ASI) prepared the site plan in his hand whereas ASI Ved Prakash, when appeared as PW11, did not claim so initially who answered that the site plan was prepared by IO in his presence but it was not signed by him but at a subsequent stage of his cross examination, PW11 replied that the site plan was prepared by him at the direction of SI Kuldeep Singh, meaning thereby that it was not prepared at the instance of SI Vipin, as claimed by other witnesses and the subsequent IO PW8.
25. Admittedly, no public witness was joined in the proceedings despite their availability. Even the driver of the Indica car, who had gone to the spot with the raid party, was not made a witness of the occurrence or of the documents. Further, it is doubtful as to whether the accused have committed the offences u/s 186/353 IPC at all because in the deposition of none of the witnesses it has come on record that the accused were commanded to stop or to surrender and thereafter they tried to escape from the spot or used any criminal force or assaulted any public servant in the execution of his duty. Merely escaping from the spot, as alleged by the witnesses that SC No.58/10 & 59/10 Page 18/19 accused fled away in different directions, may not attract either Section 186 or Section 353 IPC.
26. In view of my said discussion, the planting of the said fire arm and ammunition and weapon on the accused along with the alleged stolen car cannot be ruled out. The very existence of the alleged raid party is highly doubtful and proceedings allegedly carried out at the spot in the said circumstances, become highly improbable and thus, the prosecution has miserably failed to bring home the guilt of the accused beyond reasonable doubt. Hence, accused are acquitted of the charges u/s 379/411/34 IPC, as mentioned in FIR no.116/05, PS Prasad Nagar and are acquitted of the charges u/s 186/353/34 IPC & 25 Arms Act. It is clarified that there is no charge on the said two accused u/s 307 IPC. The PBs and SBs of both the accused are hereby discharged. The evidence recorded shall be read u/s 299 Cr.PC against accused Raj Kumar who is PO. A copy of this order be placed on the file of case FIR No.116/05, PS Prasad Nagar. Both the files be consigned to the Record Room.
(Announced in the open court on 27.02.2012) (RAKESH TEWARI) ASJ06(OUTER) ROHINI COURTS, DELHI SC No.58/10 & 59/10 Page 19/19