Delhi District Court
State vs Narender @ Fauji @ Sanjay @ Totla @ Neelu on 30 January, 2010
IN THE COURT OF SH. SATINDER KUMAR GAUTAM,
ADDITIONAL SESSIONS JUDGE( WEST-04) , DELHI.
SC NO. 125/1/08
State
Versus
1- Narender @ Fauji @ Sanjay @ Totla @ Neelu,
S/o Tek Chand,
R/o Village and Post Rohad, P.S. Bahadurgarh,
Haryana.
(Already Expired and case has been abated vide
order dated 24.04.2006)
2- Jagpal @ Kulphi Pahalwan,
S/o Late Sh. Duli Chand,
R/o Village and Post- Lokan Majra,
Rohtak, Haryana.
3- Sanjay Kumar S/o Rajendra Singh,
R/o H.No. 679/13, Teg Colony,
Kokhara Kot, Rohtak, Haryana.
4- Bijendra Singh @ Kala,
S/o Ram Kumar,
R/o Village and Post Gavera,
Tehsil Mehatan, Distt. Rohtak,
Haryana.
(i)Case arising out of FIR No. 74/2004
U/S: 307/186/353/34 IPC
and 25 & 27 of Arms
Act.
P.S. Special Cell
(ii) Date of FIR 04/06/04
(iii) Date of Institution 25/05/05
(iv) Date of Final Arguments 28/01/2010
(v)Judgment reserved on 28/01/2010
(iv) Date of judgment 30/10/2010
Contd..........
/2/
JUDGMENT
The facts as germain from the statement of SI Rahul are that on 4.6.2004 , there was an information prior to t hat day that the member of notorious gang of 'Kishan Pahlawan' are roaming in the territory of Delhi. This information was developed and the other information was that these members have been seen in the area of Dwarka, New Delhi. Sources were further deployed. On 4.6.2004 specific information was received by Insp. Mohan Chand in his office that members of this gang would be coming to meet each other at DDA District Park, Sector 11 Dwarka. This information was received at 10 am, a raiding team was organised by Insp. Mohan Chand consisting of Insp. Mohan Chand, SI Rahul, Insp. Badrish Dutt, SI Sanjay Dutt, SI Mehtab, SI Dharmender, SI Shushil, SI Jai Kishan, SI Bhoop Singh, SI Rakesh Malik, ASI Anil Tyagi and others. They all alongwith informer and equipped with arms and ammunitions left the office at 10 am in four private vehicles. SI Sushil and Ct. Satender were in uniform and others were in civil dress. Insp. Mohan Chand lodged daily diary of their departure. He also lodged the daily diary regarding receipt of the information. At about 11.1`5 they all reached the market of Sector 10, Dwarka. SI Rahul requested few public persons on the instructions of Insp. Mohan Chand Sharma to join them but Contd..........
/3/ non agreed. Without wasting the time they all came to DDA District Park, sector and Insp. Mohan Chand deployed all the team members in and around the park. SI Rahul was with Insp. Mohan Chand and informer near the gate of park. At 1.45 pm two boys came on a motor cycle and parked their motorcycle outside the gate of the park, went inside the park and sat on a bench there. After about 10-15 minutes, two more boys came there on a motor cycle. They parked their motor cycle near the first motor cycle. The informer identified these two boys coming later on as a members of gang of Kishan Pahalwan, who disclosed their name as Narender @ Kala and Jagpal @ Kulfi. These two boys also went inside the park and shake hands with the other two boys in the park. All four of them sat there and started conversing each other. After about 10-15 minutes when they were about to move Insp. Mohan Chand Sharma directed all the team members to be alert and after disclosing his identify asked the four boys to surrender. At that juncture, the two boys who had come first in the park stayed there while the two boys coming later on took out their fire arms and opened the fire aiming police party and started running inside the park. The police party in self defence open the fire upon them tried to shield themselves from the firing from other side. On having seen that they have been surrounded by all around, those two Contd..........
/4/ boys surrendered themselves to the police party. SI Rahul alongwith ASI Anil Tyagi apprehended one of them whose name came to be known as Narender @ Kala @ Fauzi who is expired. He took the pistol which he was holding in his right hand. It was .455 webly mark 3 revolver. He examined the same, it was having 4 live cartridges and two fired rounds. He separated the cartridges from the pistol. He prepared the sketch, same is ex. PW6/A. These items were sealed in a parcel with the seal of RKS and were seized vide memo Ex. PW6/B. The barrel of the revolver was having identification number 7433 and other two places it was having mark of 433. the cartridges were having identification mark of KF912, and one of the two fired rounds was having identification mark KF-812 and other fir e round was having mark of KF782. The parcel was having revolver four live rounds and two empty cartridges. The second boy involved in firing was apprehended by ASI Bhoop Singh with SI Jai Kishan. His name was disclosed as Jagpal @ Kulfi present in the court. ASI Bhoop Singh produced the pistol recovered from him. He checked the pistol. It was having four live rounds in magazine and one inside the chamber. He prepared sketch of these items. Same is ex. PW5/A. The pistol was having star mark of Chinese pistol and the rounds were of 7.62 bore. These items were sealed in a parcel with the seal of RKS and were seized vide memo Ex. PW5/B. Contd..........
/5/ The two other boys who remained at the spot and who did not escape were apprehended. One was identified as Sanjay apprehended by SI Mehtab and Ct. Satender. One 32 bore country made pistol was produced by SI Mehtab recovered in his search from his right side vest. It was loaded pistol. Two live rounds were recovered from the right side pocket of his pant. SI Mehtab produced these items to him. He prepared the sketch of the same vide Ex. PW6/C. These items were sealed in a parcel with a seal of RKS and were seized vide memo Ex. PW6/D. The 4th boy was apprehended by SI Dharmender with Ct. Vinod. During h is search one .315 bore country made loaded pistol was recovered from left side vest. One life round was recovered from the right side pocket of his pant. These items were produced by SI Dharmender. He prepared the sketch vide Ex. PW6/E. These items were sealed in a parcel with the seal of RKS and were seized vide memo ex. PW6/F. The rounds were bearing mark 8 mm KF 01 and 8 mm KF00. All the sealed pullandas were given number as 1-4 respectively in the chronological order of in his sequence of evidence. FSL form was filled and same seal was applied on it and seal after use was given to SI Dharmender.
He prepared rukka vide Ex. PW6/G and sent for registration of case through ASI Anil Tyagi and was instructed to hand over the copy of Contd..........
/6/ FIR and rukka to SI Kailash who had already come to the spot during proceedings. After registration of the case, he handed over the accused, case property and all the documents to SI Kailash. SI Kailash prepared site plan at his instance. He conducted the further proceeding.
Inspector Kailash Chand on receiving the investigation in the present case on the instruction of late Insp. Mohan Chand Sharma, went to DDA District Park, Sector -11 Dwarka , where Insp. Mohan Chand Sharma, alongwith other staff members were present. SI Rahul briefed him regarding the apprehension of the four accused persons namely Jagpal @ Kulfi , Narender, Sanjay and Vijender all the aforesaid accused persons except Narender ( since expired) identified by the witness. SI Rahul handed over him the copy of rukka four seizure memos alongwith sketch and sealed pullanda sealed with the seal of RKS and also handed over the custody of all the four accused persons. He prepared site plan Ex. PW9/A on the instance of SI Rahul. also made cursory interrogation of the accused persons and after getting sufficient prove arrested in the present case vide memos Ex. PW9/B to PW9/E and the personal search of all the accused persons is conducted vide memo Ex. PW9/F to PW9/H and Ex. PW8/B. The body inspection memos were prepared which are EX. PW9/I to Contd..........
/7/ PW9/L. He also prepared the seizure memos of the empty cartridges seized from the spot vide Ex. PW9/M. The empty cartridges were converted into a sealed parcel and CFSL form was filled up. Seal after use was handed over to SI Mehtab Singh, who also put his signatures at point A on the above said memos. He also recovered two motorcycles (make pulsure and Hero Honda) alongwith helmets and keys on the instance of the accused from the entrance gate of DDA District Park, Dwarka, Sector -11 and they were taken into possession vide memo Ex. PW9/N and PW9/O on the both the memos SI Mehtab Singh made his signatures at point A respectively in his presence. After completing the arrest and seizure they came back to Special Cell office alongwith the case property and relevant documents and deposited the case property in intact condition in the Malkhana. He also recorded the disclosure statement made by accused Jagpal @ Kulfi and Narender which are Ex. PW9/P and PW9/Q. He also recorded the statement of witnesses u/s 161 Cr.P.C including SI Mehtab on his dictation. He also took the police custody remand of the accused Narender and Jagpal for further investigation vide application Ex. PW9/S. After completing the PC remand both the accused persons namely Narender and Jagpal were sent to J/c by the order of Ld. M.M. 10 empty cartridges (Shells) and empty cloth Contd..........
/8/ parcel bearing the particulars of the case CFSL NO. and bearing the seal of KSB are ex. P-1 to P-10. The motorcycle make pulsur alongwith helmet and its keys are also produced by the MHC(M) and exhibited as P-11( collectively). The other motorcycle make Hero Honda is on supardari and its identity is not disputed. After completion of investigation challan was filed.
After completion of committal proceeding charge u/s 186/353/307 IPC was framed upon the accused Narender and Jagpal apart from offence 27 of the Arms Act. The other accused Vijender and Sanjay were charged for offence punishable u/s 25 of the Arms Act, for which they pleaded not guilty and contested the case. Accused Narender @ Fauji was expired during the trial and case against him has been abated vide order dated 24.4.2006.
IN all t he prosecution cited 11 witnesses to prove the allegation against the accused persons which includes SI Rahul, SI Dharmender, SI Mehtab Singh, ASI Anil Tyagi, SI Harlal, ASI Bhoop Singh, MHC(M), A Dey, Sr. Scientific Officer, SI Kailash Bisht, HC Ajeet Singh and DCP Ashok Chand and out of which nine witnesses were examined that are :
PW1 ASI Har Lal who deposed that on 6.6.2004 he was posted at Duty Officer at P.S. Lodhi Road, Special Cell and at about 6.30 pm SI Contd..........
/9/ Rahul through ASI Anil Tyagi sent one rukka upon which he recorded the FIR and proved the carbon copy of the FIR vide Ex. PW1/A . After recording of the FIR rukka was sent to SI Kailash Bisht to whom the further investigation of the case was assigned through ASI Anil Tyagi.
PW3 HC Ajit Singh has deposed about collecting five sealed parcels, four of them was having the seal of RKS and one was having the seal of KSB vide RC NO. 92/21. He deposited the case property at CFSL,CGO Complex , Lodhi Colony and returned the receipt. Till the parcels remained with him sealed remained intact. He further deposed that he also took two CFSL form alongwith the impression seal of RKS and KSB alongwith the parcels.
PW4 Ashok Chand DCP, proved the sanction u/s 39 of Arms Act against all accused vide Ex. PW4/A to D. PW7 A.D. Sr. Scientific Officer, deposed that on 9.7.2004 two sealed parcels bearing seal of RKS received on 5.7.2004 were assigned to him for examination. The seals were intact and were of the specification as of specimen seal. One parcel was containing one 7.62 mm pistol which was marked by him as W-1 and the parcel was containing 5, 7.62 mm cartridges which were marked by him as C-1 to C-5. He test fired 3 cartridges i.e. C-1 Contd..........
/10/ to C-3 from fire arm W-1 and same was conducted successfully and was of the opinion that W-1 is a fire arm in working condition and C-1 to C-5 are the fire ammunitions. PW7 has further deposed after opening the other parcel which was found containing one 7.6 mm pistol which was marked as W-1 and three 7.6 mm live cartridges. Test fire was conducted of C-1 through W-1 and opined that the fire arm W-1 was in working order and ammunitions were life and after examination contents of each parcel were sealed in two separate parcels sealed with the seal of ADCFSLCBI. The fire are exhibited as P-1 and P-3 and the cartridge are collectively Ex. P-2 and P-4.
The other witnesses PW2 ASI Anil Tyagi, PW5 SI Bhoop Singh, PW6 SI Rahul, PW8 SI Dharmender Kumar and PW9 Insp. Kailash Singh Bisht have deposed in their examination in chief in the similar manner as narrated in the preceding para's of the judgment and also proved the documents exhibited as above.
PW2 ASI Anil Tyagi is not cross examined by any of the accused.
PW5 SI Bhoop Singh, in cross examination deposed that the information was received in office in his presence. Name and address f the Contd..........
/11/ accused was not disclosed in the information. Park is a public place open to all. When they reached in the park they did not saw any public person. Four five police officers were having AK-47 rifle with them and kept in the vehicle. The pistol recovered from the accused is of the character that it would not retain the bullet shell fired from the same. It is denied that no empty shell of the pistol of the accused was recovered from the place of their arrest. He does not remember the bullet shell has been shown in the sketch or not. During this period no public persons came in the park. All the documents are prepared by the Investigating Officer at one place, he did not sign the documents, Ex. PW5/A and PW5/B were prepared by the IO in his own handwriting. The rukka was prepared after preparation of these two documents. No public persons gathered at the place of the arrest of the accused. It is denied that there is any petrol pump near the park but there is residential houses at one side of the park. He did not sign any other papery, it was a recovery memo of Jagpal , arrest memo of Jagpal and the other documents he did not remember. Insp. Badri Dutt, SI Sanjay Dutt, SI Dharmender and myself were driving the vehicle. It is denied that he did not join any raiding party and did not come at the spot or there was no recovery was effected. It is further denied by PW6 that accused Vijender Contd..........
/12/ was arrested from his house or that fire arm was planted upon him. No watchman or gardener was there in the park. No one came at the spot after firing. It is denied that the writing work was done in the office of the cell.
PW6 Insp. Rahul in cross examination stated that before preparation of the rukka, he prepared seizure memo and sketches of the recovered weapon and the same are placed in the file. There is no document prepared by him showing the distance of firing made on the police party by the accused persons. The document which he prepared have not mentioned the exact distance or approximate distance of firing by the accused on the police party. Next day the second IO had produced the accused in the court. He have no knowledge if the case property recover and sealed should be produced before the concerned Ld. Magistrate at the time of production of the accused persons before the Magistrate. He had handed over the investigation to Insp. Kailash at the spot itself. It is denied that he had conducted the investigation in a mechanical manner at the instance of his Sr. Officers or did not investigate the case properly and fairly or the accused persons are falsely implicated in the present case or that the weapon are planted upon the accused persons.
PW8 SI Dharmender in cross examination has deposed in the same manner and deposed that the distance of fire has not been shown in the Contd..........
/13/ site plan or in the testimony of any of the witness. The approximate distance was 10 to 15 yards. The accused Vijender did not fire. He cannot tell placement of the Pallet, bullet and led as he have not prepared the site plan. He did not state in his statement about the range of the fire arms which has been used upon the police party by the accused persons. It is denied that he deposed falsely in his examination in chief.
PW9 Insp. Kailash Singh in his cross examination deposed that the site plan PW9/A does not mention at whose instance it was prepared and it is also not mentioned in the site plan as to from which distance the accused persons fired on the police party. It is denied that the site plan PW9/A is not prepared in accordance with Punjab police rules. He had recorded the statement of other witnesses and in the statements recorded u/s 161 Cr. PC, the exact distance of firing made on the police officials is not mentioned. There is also no approximate distance of firing on the police party is mentioned. It is denied that he conducted investigation in the mechanical manner at the instance of his senior officers or he did not investigated the case properly and fairly or accused persons are falsely implicated in the present case.
After conclusion of prosecution evidence, statement of accused persons u/s 313 Cr.P.C have been recorded. All the incriminating evidence Contd..........
/14/ against the accused persons put to them one after the other, for which they denied the same as false and incorrect and stated that they are innocent and have been falsely implicated in this case. They did not want to lead defence evidence.
I have heard Ld. APP for State , counsel for accused and also gone through the material on record.
Ld. APP for state submitted that the prosecution examined all the material witnesses to prove the allegation against the accused persons. The sanctioning authority proved the sanction granted against the accused persons u/s 39 of the Arms Act. There is no cross examination to the said sanctioning authority as well as to proving the FSL report. Therefore, the FSL report and sanction u/s 39 are deemed to be proved. Police officials have made efforts to join public witnesses before or at the time of raid but no public persons joined and non joining of public person cannot falsify the case of the prosecution since the testimony of prosecution witnesses are trustworthy and believable, though they are police officials. In these circumstances all the accused persons are liable to be convicted in accordance to the charges framed against them.
On the contrary Ld. Defence Counsel submitted that the Contd..........
/15/ investigation is faulty and unfair. The public persons were available as there are residential accommodation near and adjoining of the park but no public person were joined from the residence. Even though the raiding party was formed at the spot where four -five public persons were available. Even though no pubic witness have been joined at any stage of the investigation nor any action was taken against the public persons who refused to join the investigation. SI Mehtab Singh and MHC(M) are not examined. Since SI Mehtab Singh was expired and MHC(M) who is a material witness of the case as the case property was remained in his custody after 4.6.2004 till it was sent to the FSL. There is no explanation for getting withheld the case property for a period of more than a month in the Malkhana. Even no one has explained as to what was the reason to delay to send the case property in the FSL. There is no one one behalf of the MHC(M) have stated that the case property remained before the MHC(M) was intact and was not being tampered by anyone till the same was remained in the custody of MHC(M) or till the time when the same was sent to FSL. Hence there is every likelihood of tampering of the case property. PWs during their examination has stated that the parcel was sealed with seal if RKS, FSL form was filled up and same seal was applied on it, it has not been deposed by any of the Contd..........
/16/ witness that to whom seal after use by SI Rahul was handed over and when it was returned back and in whose presence the same was returned. In these circumstances since there is no explanation to this effect. The seal aft er use by SI Rahul or by some other police official after so many days there is every likelihood of tampering of the case property. It is also contended that the allegation made against the accused Jagpal that he has fired upon the police party but none of the prosecution witness have stated that was the distance from where he has used the fire arms and where the Pellatlets , led and cartridges were lying and the place was not shown in the site plan. In these circumstances the investigation as carried by PW SI Kailash Bisht is tainted , unfair and contrary to the procedure established by law. It is further contended that the accused Jagpal @ Kulfi was being charged for obstructing the police party while being apprehending him and used the fire arm upon the police party. The accused was initially was apprehended by Insp. M.C. Sharma to whom he was fired but the empty cartridges but neither pellet or empty cartridges was recovered from the spot nor location was shown in the site plan . Therefore, the story made by the prosecution is unplausible, untenable and inconsistence. The deposition made by the prosecution witnesses are untrustworthy, uncorroborated and unreliable. It is further contended that there are material contradiction in the statement Contd..........
/17/ of the prosecution witnesses . PW SI Bhoop Singh stated that on the instruction of Mohan Chand Sharma SI Rahul asked seven-eight public persons to join in the raid but they refused to join and left the place without disclosing their identity. Neither the said public witnesses have been cited in the list of witnesses nor their statement has been recorded u/s 161 Cr.PC and there is no explanation to this effect by the prosecution.
It is further contended that accused Sanjay and Vijender who were charged u/s 27 of the Arms act. PW1 ASI Anil Tyagi stated that no recovery of fire arms from the possession of accused Vijender and Sanjay . In respect of the recovery of one loaded firearm and one live cartridge and one cartridge from possession of accused Vijender PWs SI Rahul and Insp. SI Dharmender stated that accused Sanjay was apprehended by SI Mehtab and Ct. Satinder and one country made pistol was recovered from right side vest and two live around was also recovered from right side pocket of his pant and SI Dharmender and Ct. Vinod during the search, one country made pistol .315 bore recovered from left side vest. One live round was recovered from right side pocket of his pant. These items were sealed in a parcel with the seal of RKS and were seized vide memo Ex. PW6/F and prepared the sketch of country made pistol vide Ex. PW6/E. All these were put in Contd..........
/18/ chronological order The fire arm as recovered from accused Jagpal is ex. P-1 and P-3 and two live cartridge are Ex. P-2 &4 and the fire arm recovered from accused Sanjay is Ex. P-5 and three cartridge are Ex. P-6. It is further cont ended that there is no complaint filed u /s 195 Cr.P.C by competent authority before the court of CMM. Nor any witness to this effect has been cited . Therefore the provision of section 186/353 IPC is not attracted and in last but not least prayed that all the accused persons are entitle for acquittal.
In view of the submission made by Ld. Prosecutor and the counsel for the accused as well as material on record, the prosecution must prove that the persons apprehended by public servant obstructed in discharge of public functions and in order to prove the charges against the accused, the prosecution must prove :-
(i) that the person obstructed was public person.
(ii) that at the time of obstruction he was discharging his public functions.
(iii) that the accused obstructed him in the same.
(iv) that he did so voluntarily.
The use of word 'voluntarily' indicates that the legislature contemplated the commission of some overt act of obstruction and did not Contd..........
/19/ intend to render penal mere passive conduct. The word 'obstruction' means actual obstruction, i.e. actual resistance or obstacle put in the way of a public servant. The word 'implies' means the use of 'criminal force' and mere threats or threatening language or mere abuse are not sufficient.
The Allahabad High Court in case titled as Tohfa AIR 1933 All 759 held that the word 'obstruction' is not confined to physical obstruction and mere threat or threatening language is sufficient to constitute the offence under this section. Threats of violence made in such a way as to prevent a public servant from carrying out his duty might easily amount to an obstruction of the public servant. It must be shown that the obstruction or resistance was offered to a public servant in the discharge of their duties or public functions, as authorized by law.
The contentions of the defence counsel is that the police has neither joined any public person despite being a through fare and there are contradictions among the deposition of the prosecution witnesses to this effect, I am not convinced with these contentions. The minor discrepancies in the evidence of the eye witnesses are immaterial unless they demolished the basic case of the prosecution. Therefore, the contradictions before the court in the statement u/s 161 Cr.P.C. are not sufficient to discard the evidence of Contd..........
/20/ the prosecution witnesses. Even some improvements and exaggerations or some minor discrepancies would not permitted and not liable to be rejection of the prosecution evidence.
In the present case t he facts are that the accused persons were gathered in the District Park, however, it has to be established that they are being belonging to 'Kishan Pehalwan' group or they having any criminal background. All these persons were being obstructed and apprehended by police , two of them namely Narender and Jagapl made fire on the police party and two other persons were not fired nor obstructed. However country made pistol was recovered from them. The police official remained at the spot for four six hours. Till remaining at the public place which a residential area but no one from the said houses near the said district park joined in the investigation. Police has not made any sincere efforts to join public witnesses even though there was thoroughfare and availability of the witnesses. Apart from the persons named in the raiding party are also not being examined at all. PW Mohan Chand Sharma, Insp. Badrish , SI Sanjay Dutt, SI Sushil, SI Jai Kishan, SI Rakesh Malik, ASI Anil Tyagi are also the member of th raiding party but these persons neither being cited in the list of witnesses nor they have been examined during the course of Contd..........
/21/ investigation nor any reason for non examination or not citing as witness has been given by the Investigating Officer. There is no explanation given by the IO as to why these witness have not been examined or cited in the list of witnesses though they have been actually participated in the raid. PW SI Kailash Singh Bisht prepared the site plan Ex. PW9/A at the instance of SI Rahul but the said site plan is not being signed by SI Rahul or any other witness. The place where the accused was apprehended was mentioned at point "A". However the accused Jagpal and Narender was initially apprehended by SI Rahul and other police official and other accused Sanjay and Vijender was alleged to apprehended later on but all the four accused has been shown at point "A". The place where the empty cartridge and pellatlets and led was fallen after fire from accused on the police party has not been shown in the site plan. Nor empty cartridges were taken into possession.
In the present case there is no written complaint filed by SI Rahul and Insp. M.C. Sharma who has been initially obstructed by accused Jagpal and Narender nor any statement was recorded by the IO. Ex. Pw6/B was rukka which has been prepared by SI Rahul initial Investigating Officer, who is member of the raiding party. As per the deposition of SI Rahul, Insp. Mohan Chand Sharma identified all the four members and he with Contd..........
/22/ Mohan Chand Sharma and informer near the gate of the park. The informer only identified two boys, later on as member of the gang of 'Kishan Pehalwan' and also disclosed their names as Narender @ Kala and Jagpal @ Kulfi. But the other two other boys namely Sanjay and Vijender were not named to be the member of the Kishan Pahalwan group.
As per the leading judgment of Apex court " Cognizance of offence under Section 186 on police report itself is bad in law and entire trial bases on such report is vitiated. Moreover abiding an offence punishable under section 353 IPC in order to circumvent the procedure when case clearly fell within purview of section 186, IPC was not proper. Further no assault or abuses were directed against the public servant and only decree holder was prevented from entering forcibly in house of accused for taking possession of it, no offence u/s 186 was made further no complaint in writing was made by public servant. Therefore, order and sentence convicting accused under section 186 cannot be sustained." This view is observed in I East Cri C 61 (63) (Pat.) Where the offence u/s 186 and 353 was committed in course of same transaction, the same cannot be split up to avoid provisions of section Contd..........
/23/ 195 and trial for offence u/s 186/353 without special complaint as required u/s 195 (1)(a)(i) is illegal. It has been observed in 1987 Cri LJ 1750 (1753): 1988 Cur Cri J (MP) 102.
For a crime to be proved, it is not necessary that the crime must be seen to have been committed and must, in all circumstances, be proved by direct ocular evidence by examining before the court those persons, who had seen its commission. The offence can be proved by circumstantial evidence also. The principal fact or " factum probandum" may be proved indirectly by means of certain inferences drawn from " factum probans", that is, the evidentiary facts. To put it differently, circumstantial evidence is not direct to the point in issue but consists of evidence of various other facts which are so closely associated with the fact in issue that taken together , they form a chain of circumstances from which the existence of the principal fact can be legally inferred or presumed.
It is permissible for a court to record and sustained a conviction on the evidence on a solitary eyewitness. But at the same time, such a course can be adopted only if the evidence tendered by such witness is cogent, reliable and in tune with probabilities and inspired implicit confidence. By this standard, when the prosecution case rests mainly on the sole testimony of an eyewitness, it should be wholly reliable.
Contd..........
/24/ In the present case there are so many eyewitnesses of the circumstance but most of the witnesses are neither cited in the list of witnesses nor have examined during the course of investigation or in the trial. Therefore, the conviction on the sole testimony of few police official who has made contradictory version with respect to the charges levelled against the accused is adversely affected the case of the prosecution and therefore the non corroborative and unreliable testimony, the conviction of the accused persons cannot be save. The evidence of PW SI Rahul, SI Bhoop Singh, SI Dharmender and Si Kailash Bisht are conflicting with each other with respect to the joining of the public witnesses during the course of investigation, apprehension of accused, recovery of weapon and use of any; criminal force and causing assault by the accused persons. Under these circumstances the deposition of prosecution witnesses cannot be weighed. The prosecution failed to produce the quality evidence. T he conviction can be based on the reliable witnesses whose testimony are cogent and inspire implicit confidence.
Therefore, in view of the aforesaid discussion and the authority cited , I came to the definite conclusion that the testimony of the prosecution witnesses do not inspire any confidence and their credibility are Contd..........
/25/ impeachable. Therefore, all the accused persons are hereby acquitted. Their bail bonds cancelled. Their respective sureties are also stands discharged. Case property be disposed of in accordance with law. File be consigned to Record Room.
ANNOUNCED IN THE OPEN COURT TODAY ON 30.01.2010 (SATINDER KUMAR GAUTAM) ADDITIONAL SESSIONS JUDGE(WEST-04) DELHI