Delhi District Court
State vs . Raj Kumar & Ors on 17 May, 2012
1
IN THE COURT OF SHRI SURINDER S. RATHI:ASJ:02:
CENTRAL: ROOM NO.32:TIS HAZARI COURTS :DELHI
ID NO: 02401R0194802009
SC NO: 47/09
FIR NO: 11/09
PS Spl. Cell
U/s 186/353/307/402/467/468/
120B/34 IPC & 25 of Arms Act
State Vs. Raj Kumar & Ors
JUDGMENT
1 Sl. No. of the Case SC No: 47/09 2 Date of Committal to Sessions 10/08/09 3 Received by this court on transfer 23.04.2011 4 Name of the complainant State 5 Date of commission of offence 08/03/09 6 Name and Parentage of accused 1.Raj Kumar @ Dhanwant @ Dhanna S/o Gurdas Ram R/o Village Thathan, PS AMB, Distt. Una , Himachal Pradesh 2.Gajender Singh @ Bennar S/O Sh.Om Parkash Singh R/O House No. 4321, Badi Basti Basant Road Paharganj Delhi. Age: 29 yrs 3.Sachin Kumar @ Raju S/o Sh. Panna Lal R/o B233, Ground FloorI, Shalimar Garden, Main Sahibabad, UP. Age: 39 yrs 4.Baljinder @ Balwinder @ Satnam @ Satta S/o Sh. Sodagar Singh (Trial against him separated after he escaped from custody on 1.4.2012 ) 7 Offence complained of U/s186/353/307/402/467/468/120B34 IPC & 25 of Arms Act 8 Offence charged 186/353/307/34 IPC Accused Raj Kumar was also charged U/s 25/27 of Arms Act. 1. Accused Sachin was also charged U/s 25 of Arms Act.
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9 Plea of guilt Pleaded not guilty
10 Final order Acquitted
11 Date on which order reserved 02/05/12
12 Date on which order announced 17/05/12
BRIEF REASONS FOR DECISION
1. Case of the prosecution as per charge sheet is that Spl. Cell was in the lookout of robbers on account of increased incidents of robberies in 2009. On 8.3.09 at 2.50pm a source working for HC Amit Kumar told him telephonically that one person involved in several robberies is roaming around in Rohini Area in Santro Car No. DL3CAP6338. Informer invited police team at Rohini West Metro Station. HC Amit shared the input with Inspector Pankaj Sood and lodged DD No.3 Ex.PW1/A to that effect. Inspector shared the input with ACP, Spl. Cell and as directed a team was prepared under the Inspector consisting of SI Harbir, HC Amit, HC Suresh, HC Ramesh and HC Dharambir . The raiding party left Spl. Cell Office, North range at 3.00 pm in vehicle No. DL1CA3566 vide DD No.4 Ex.PW1/B. They reached Rohini West Metro Station at 3.05 pm and met the secret informer.
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2. At around 3.15pm, Santro car with two occupants passed the road which was followed by the Police Team . After around 2.5 kms near the road close to Sector 2425, Rohini, the occupants parked the Santro on the road side for urination. After easing themselves when the two occupants turned towards the Santro, SI Harbir stopped the police vehicle in front of the Santro and raiding party members came out. The two boys were asked by the raiding party to stop. Uppon this the two boys shouted at Police to stop or else they would fire and they started running towards Service Lane going to Rithala. The raiding party members chased them. HC Amit and HC Suresh chased Raj Kumar whereas HC Ramesh and HC Dharambir chased Gajender. Raj Kumar kept on running and took out the pistol. He was warned by the police officials but he turned towards the chasing party and fired towards them. He lost his balance and fell on the ground and his pistol fell at some distance . Raj Kumar was over powered and pistol was seized by the police .
3. HC Ramesh and HC Dharambir caught Gajender and both were brought to the police vehicle. The pistol carried by Raj Kumar was produced by HC Page 3 /26 of Judgment State Vs. Raj Kumar , Gajender Singh and Sachin Kumar dt . 17.5.2012 4 Amit to SI Harmeet who sealed it into a pulinda which was seized vide memo Ex.PW1/D, its sketch along with six live cartridges and magazine Ex.PW1/C and fired cartridge Ex.PW1/E . The fired cartridge was seized vide memo Ex.PW1/F. Santro car was seized vide memo Ex.PW1/G. Site plan Ex.PW16/A was prepared. SI recorded statement of HC Amit Ex.PW15/A and sent ruqqa and got FIR Ex.PW4/A registered along with endorsement on ruqqa Ex.PW4/B U/s 186/353/307/34 IPC & 25/27 Arms Act.
4. SI recorded disclosure statement of Raj Kumar Ex.PW1/K on the basis of which at his instance vide memo Ex.PW1/L four police uniforms with three belts, one pagri and two caps were recovered and seized from house No.422, Shakurpur. Accused Raj Kumar was arrested vide Ex.PW1/H and personal search Ex.PW1/J . He pointed out Oriental Bank of Commerce, Minto Road, Kamla Market as the place where he attempted to commit robbery vide memo Ex.PW1/A. He also gave disclosure and pointed out Bikaner and Jaipur Bank at Industrial Area , Bawana as the place of robbery vide memo Ex.PW1/P. Report of Icard in the name of Raj Kumar Page 4 /26 of Judgment State Vs. Raj Kumar , Gajender Singh and Sachin Kumar dt . 17.5.2012 5 is Ex.PW11/B. Supplementary disclosure statement of accused Raj Kumar was also recorded vide Ex.PW16/C. Accused Gajender was arrested vide memo Ex.PW1/L , personal search Ex.PW1/M and he gave disclosure statement Ex.PW16/B, his supplementary disclosure statement Ex.PW16/D, crime dossier Ex.PW14/A.
5. Production warrant for arrest of accused Baljinder was issued and he was arrested vide memo Ex.PW1/Q , his disclosure was recorded vide Ex.PW1/R and supplementary disclosure Ex.PW16/E. He got recovered bag containing pistol, papers and clothes from house no.252, Vir Nagar, Meerut, UP vide memo Ex.PW1/T , sketch of the pistol is Ex.PW1/S, copy of the document is Ex.P1, P2, P3, P4.
6. Accused Sachin Kumar was arrested on 19.3.09 vide memo Ex.PW15/A, personal search Ex.PW15/B, disclosure statement Ex.PW15/C . He got recovered a bag containing pistol, 7 live cartridges, passport and papers from his inlaws house at Gokulpuri, Delhi vide memo Ex.PW15/E, passport Ex.PW16/H, the land documents are Ex.PW16/G. Intimation of detaining Sachin Kumar from Rail Bhawan is Ex.PW13/A & B. Railway Ministry pass Page 5 /26 of Judgment State Vs. Raj Kumar , Gajender Singh and Sachin Kumar dt . 17.5.2012 6 it in the name of Harbir and two other persons is Ex.PW16/F.
7. Malkhana entry and road certificate are Ex.PW7/A to E, RC Ex.PW18/A. Seizure memo of Rhino Vehicle UP15AJ9022 and affidavit are Ex.PW1/U and Ex.PW8/A. It was said to have been purchased out of cash robbed from State Bank of Bikaner and Jaipur, Samaypur, Delhi after Rs.2.96 lac was given by Baljinder to Anand Parkash through Rambiri and Jitender. FSL report is Ex.PW3/A. Sanction for prosecution under Arms Act is PW2/B, C and D and complaint U/s 195 Cr.P.C. is Ex.PW2/A. Letter for freezing of Bank Account and withdrawl of freezing application in the name of Anil Saraswat are Ex.PW16/A, J, L&M .
8. After conclusion of investigation , charge sheet U/s 186/353/307/402/467/468/ 120B/34 IPC & 25 of Arms Act was filed and after compliance of Section 207 Cr.P.C, case was committed to Sessions. Ld. Predecessor charged the accused for commission of offence punishable U/s186/353/307/34 IPC 01.06.2010 to which accused pleaded not guilty and claimed trial. Accused Sachin, Raj Kumar and Baljinder were also charged separately for commission of offence punishable U/s 25 Page 6 /26 of Judgment State Vs. Raj Kumar , Gajender Singh and Sachin Kumar dt . 17.5.2012 7 of Arms Act. Accused persons pleaded not guilty to the charge. However, trial of Baljinder was separated on 1.4.12 after he reportedly escaped from custody.
9. To prove its case prosecution examined 18 witnesses in all. It was followed by recording of Section 313 Cr.P.C. statement of accused wherein they denied allegations against them & pleaded innocence. Accused Gajender also lead evidence in his defence and examined his wife Smt. Shewta Singh as DW1 who deposed to the affect that her husband i.e. accused Gajender was taken to the PS from home under the pretext of some enquiry.
10. I have heard arguments of Ld. Addl. PP for State Sh. V.K.Negi and Ld. Counsel Sh. Ikarant Sharma , Advocate for accused Sachin, Ld. Counsel Sh. Ashutosh Bhardwaj , Advocate for Gajinder, Ld. Counsel Sh. Ashok Kumar Singh , Advocate for accused Raj Kumar . I have also carefully perused the entire case file.
11.At the onset it would be appropriate to have a glance at the gist of depositions made by each of the prosecution and defence witness during Page 7 /26 of Judgment State Vs. Raj Kumar , Gajender Singh and Sachin Kumar dt . 17.5.2012 8 the course of trial.
12.PW1 HC Amit Kumar joined the investigation and narrated on the lines of prosecution story apart from identifying the accused as well as photocopy of ICard in the name of Kulvinder Singh as Ex.P1, photocopy of ICard in the name of Rama Chaudhary as Ex.P2, photocopy of ration card Ex.P3, photocopy of driving license as Ex.P4, photocopy of ICard of Railway Board as Ex.P5, photocopy of RC of car No. UP159022 as Ex.P6, original affidavit as Ex.P7, photocopy of Dass Motors as Ex.P8, bag containing police uniforms collectively Ex.P9 traveling bag Ex.P1/T containing clothes collectively P10.
13.PW2 ACP Ravi Shankar proved the complaint U/s 195 Cr.PC.
14.PW3 K.C.Varshney examined pistol and six cartridges and proved his report.
15.ASI Rohtash Singh was Duty Officer on 8.3.09 and he proved the registration of case FIR .
16.PW5 Mukesh Kumar is landlord of house No.I4222, Shakur Pur, Delhi , one room of second floor of which was taken on rent by accused Raj Kumar Page 8 /26 of Judgment State Vs. Raj Kumar , Gajender Singh and Sachin Kumar dt . 17.5.2012 9 and his Brother in law (sala) .
17.PW6 Smt. Resham Devi let out her room of second floor of house no.I 465, JJ Colony, Shakur Pur Delhi to accused Bajinder.
18.PW7 ASI M.Bakshila MHCM proved the relevant entry vide which case property was deposited in malkhana and later on sent to FSL.
19.PW8 Anand Prakash owner of vehicle No. UP15AJ9022 and he is said to have given the same to Smt. Rambiri on hire basis on 19.11.2008 .
20.PW9 Sushil Nagar was property dealer through whom the land of about 7½ acre was sold to Jitender, Baljender, Gajender, Rajinder and Om Parkash .
21.PW10 HC Ravinder joined investigation in this case on 8.3.2009 .
22.PW11 Sh.H.R.Sharma, Under Secretary Ministry of Railway proved the report qua verification of Icard in the name of one Raj Kumar as per which the Icard Ex.P5 was never issued in favour of Raj Kumar.
23.PW12 Jagdish Gupta let out the ground floor of his house No. 252, Opp. Jain Sthanak, Veer Nagar, Meerut (UP) to Sanjeev Kumar.
24.PW13 A.K.Patil proved intimation qua detention and arrest of accused Page 9 /26 of Judgment State Vs. Raj Kumar , Gajender Singh and Sachin Kumar dt . 17.5.2012 10 Saching Kumar, PA to ED/SD.
25.PW14 Anuj Kr. Bhati, Finger Print Expert proved the report qua previous involvement and previous conviction of accused Gajender Singh and Raj Kumar .
26.PW15 HC Bharat Singh joined the investigation in this case on 19.3.2009 and detailed out the entire investigational steps apart from identifying accused.
27.PW16 SI Harbir Singh is IO of the case and he narrated on the lines of prosecution story by narrating entire investigation apart from identifying accused.
28.PW17 Sh.Alok Kumar accorded sanction U/s 39 of Arms Act for prosecution of accused persons being the then DCP, Spl. Cell, Delhi on 28.4.09.
29.PW18 ASI Paramjeet Singh was MHCM, Spl. Cell on 24.3.09 and he has proved the copy of RC vide which sealed parcels were sent to FSL, Rohini.
30.At the onset it is observed that even though as per prosecution case , on 8.3.2009, only accused Raj Kumar and Rajinder were arrested from near Page 10 /26 of Judgment State Vs. Raj Kumar , Gajender Singh and Sachin Kumar dt . 17.5.2012 11 Metro Station after Raj Kumar allegedly fired a gun shot and no other accused was even present there , but still Ld. Predecessor has charged accused Baljinder Singh and Sachin Kumar with offences punishable U/s 186/353/307/34 IPC . It is conceded by Ld. Addl. PP that above two later accused could not have been charged under these offences as no role has been assigned to them in the chargesheet in any manner.
31.Another startling fact is revealed is that this case was an open and shut matter in so far as primarily FIR Ex. PW4/A was registered only qua alleged assault on police party by two accused persons followed by recovery of a loaded arm. I see no reason as to why the investigation of this case was allowed to go let loose aimlessly and go awry in so far as after the claimed arrest of accused Raj Kumar and Gajender , their voluminous disclosure statements were recorded wherein names of two other accused namely Baljinder and Sachin were added. In a simple case of assault where these later two accused persons had no remote connection or proximity , the kind of recoveries shown to have been effected that too from places in other state like Meerut, are procedurally wholly incorrect. How can a claimed Page 11 /26 of Judgment State Vs. Raj Kumar , Gajender Singh and Sachin Kumar dt . 17.5.2012 12 recovery of a weapon at Meerut, UP be investigated, prosecuted and tried at Delhi. Moreso, when it is not the case of Police that weapon had any proximate or distant connection with the FIR in hand .
32.Similar is the situation qua disclosures of several other claimed robberies and dacoties & recovery of property documents shown to have been purchased from proceeds of crime unrelated with the matter in hand . On account of this high handed aimless investigation , Ld. Predecessor has rightly not framed any charge U/s 402/420/467/468/120B IPC, even though these offences were included in the chargesheet by the Police. Admittedly order of Ld. Predecessor of discharging the accused persons under the above unnecessarily offences was not challenged before a Superior Court. As such the recoveries shown to be related to the above discharged offences are of no aid to the prosecution now.
33.The whole investigation is not only aimless but is also superfluous in many respects and all the necessary safeguards required to be followed were thrown to the air .
34.The first amongst them is that even though the said raiding party is claimed Page 12 /26 of Judgment State Vs. Raj Kumar , Gajender Singh and Sachin Kumar dt . 17.5.2012 13 to have been led by Inspector Pankaj Sood right from the time of receipt of said secret information and claimed leaving of Spl. Cell Office upto the time of arrest of the accused persons, but still the investigation of this case shown to have been cracked by an Officer of the rank of Inspector was handed over to an Officer Junior to him i.e. Sub Inspector. It is a settled legal proposition and a principal of natural justice as well, that a Junior Official can not have an indiscriminate outlook towards a case assigned to him by his Senior Superior Officer as a complainant. There is no explanation as to why the Inspector did not assign the investigation of this case to an Officer who is either equivalent or Superior to him. This casual approach deserves to be deprecated .
35.In case titled, "Ram Jatan Vs. State III (1995) Current Criminal Reports " Hon'ble High Court held, 737 "if the investigation of the case has been entrusted to a subordinate officer by the Station Officer of the Police Station, the investigation in such a case cannot be fair. Being a subordinate he is not in a position to come to an independent finding and such an investigation can be treated as tainted and no reliance can be placed on it. Investigation regarding acts of senior officers should not be done by the junior officer. This is another glaring mistake and lacuna in the prosecution case which makes this case a doubtful one."
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36. Another major legal folly committed by the Police in this matter is that an officer who was the part of the raiding team was assigned the investigation Being a part of the raiding party, SI Harbir acquired the status of being a complainant. How can he investigate his own complaint? It is basic tenentment & Principle of Natural Justice that a complainant can not investigate his own case and also that an Investigating Officer shall be an indiscriminate neutral person so that he carries out the investigation in a just fair and reasonable manner as ruled by Hon'ble Supreme Court in Menaka Gandhi's case. There is no explanation as to why the investigation was not assigned to any other person and this failure on the part of police per se vitiates the entire investigation.
37.At the very inception the initial input is shown to have been received by PW1 HC Amit Kumar from a source cultivated by him. This fact is also mentioned in the first document of the matter i.e. DD No.3 Ex.PW1/A but interestingly in his voluminous deposition as PW16 SI Harbir Singh , IO of this case as well as member of the raiding party is in total oblivion of this fact & the DD.
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38.As regards the charge U/s 186 IPC in concerned qua the accused Baljinder and Sachin, they could not have been charged with the same in so far as they were admittedly not present at the time of the alleged offence. Even with regards to accused Raj Kumar and Gajender , not only there is no allegation that they had in any manner obstructed the Police Officials from doing their business but even though a 195 Cr.P.C. complaint was filed, Ld. Magistrate took cognizance of the offence not on the basis of complaint but only on the basis of the charge sheet.
39.In case titled C. Muniappan and others Vs. State of Tamil Nadu, 2010 (9) SCC 567, Hon'ble Supreme Court observed that "Thus, in view of the above, the law can be summarized to the effect that there must be a complaint by the public servant whose lawful order has not been complied with. The complaint must be in writing. The provisions of Section 195 Cr.P.C. are mandatory. Noncompliance of it would vitiate the prosecution and all other consequential orders. The Court can not assume the cognizance of the case without such complaint. In the absence of such a complaint, the trial and conviction will be void abinitio being without jurisdiction."
40.In view of this neither of the accused can be convicted for offence punishable U/s 186 IPC.
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41.Even with regards to accusation U/s 353/307 IPC, as mentioned supra, Baljinder and Sachin were not present at the spot and as such they can not be accused of commission of these offences. Even with regards to Raj Kumar and Gajender , it was only Raj Kumar who is shown to have fired a gun shot while Gajender was admittedly unarmed. As per the prosecution story the time when these two accused were allegedly cornered , they were casually urinating. They simply started running upon seeing the approaching police party. It is alleged that they shouted at the police to stop or else gun shot would be fired and it was followed by firing of the gun shot. On this score I find strength in the plea of defence that not a single person out of the raiding party has deposed that accused Raj Kumar fired the gun aiming at him or any of the individual raiding party members. Until and unless the specific averment comes on record that an attempt on the life of any particular person was made, mere firing of a gun , even if accepted , can be looked upon as to a shot fired to cause alarm and not an attempt to cause murder.
42.In case titled Durgo Bai Vs. State of Punjab, 2004 VIII AD SC 88, Hon'ble Page 16 /26 of Judgment State Vs. Raj Kumar , Gajender Singh and Sachin Kumar dt . 17.5.2012 17 Supreme Court while acquitting the appellant U/s 307 IPC held, " .... the evidence of PW1 appears to be vague and scanty and it is not safe to convict him on the basis of this evidence. Apart from the fact that the lead / empties were not recovered or attempted to be recovered, there is no definite evidence that the accused targeted the members of the patrolling party. The direction in which the shot from the revolver traveled and the details relating to the logistic are not forthcoming ."
43. Furthermore even though the alleged incident is shown to have taken place in broad day light that too at a busy Metro Station very close to B.R.Ambedkar Hospital, despite availability of public persons as well as public servants at the hospital , no sincere attempts were made to rope in any independent witness which could have added credence to the depositions of PWs. The story of firing at police party does not even find mention in the detailed disclosure statement recorded. Even though disclosure statement run into several pages but nothing qua the claimed shoot out is mentioned in the same which is quite strange. Had the accused been involved in shoot out , this fact would have atleast found mentioned therein.
44.The story of claimed shoot out is also found suspicious as even though the Page 17 /26 of Judgment State Vs. Raj Kumar , Gajender Singh and Sachin Kumar dt . 17.5.2012 18 weapon allegedly used by accused Raj Kumar was claimed to have fallen on the ground . No attempt was made to preserve or lift the fingerprint of the accused thereform. Even though the claimed exhibits were sent to FSL no opinion was provided that the fired cartridge found at the spot had the similar pin marks which could connect the said fire cartridge with the allegedly recovered weapon.
45.Even otherwise the claimed loaded weapons is shown to have been seized on 8.3.2009 but the exhibits were not sent to the Forensic Laboratory promptly and they were sent only after unexplained delay of more than two weeks, sixteen days in specific.
46.In case titled Baldev Singh Vs. State of Punjab, 1991 SCC (cr.) 61 it has been observed by Hon'ble Supreme Court that :
"In a case where pistol and cartridges were sent after a delay of about 10 days, such delay in sending the crime articles to the lab creates doubt about their connection with the crime."
47.In case titled Ten Singh Vs. State, 1996 (1) RCR 343 it has been observed that : ''Inordinate delay in sending sealed parcel to Forensic Page 18 /26 of Judgment State Vs. Raj Kumar , Gajender Singh and Sachin Kumar dt . 17.5.2012 19 Science Lab creates suspicion and throws doubt on the bonafides of the investigation.''
48.In case titled Dilawar Singh Vs. State of Delhi, 2007 (10) JT 585 SC, Hon'ble Supreme Court while discussing the consequences of unexplained delay in lodging of the FIR, observed that :
Delay sometimes afford opportunity to complainant to make allegations upon the complaint and to make embellishment or even fabrications................. if there is delay in either coming before the police or before the court , the courts always view the allegations with suspicion and look for satisfactory explanation. If no such satisfaction is formed , the delay is treated as fatal to the prosecution case.''
49.Another anomaly seen in this case is that very many documents like seizure memo of pistol and live cartridges Ex.PW1/D, its sketch Ex.PW1/C, seizure memo of fired cartridge Ex.PW1/F, its sketch Ex.PW1/E, seizure memo of Santro car Ex.PW1/G was prepared hours before the registration of FIR but still they all carry specific FIR number and other details over them which are apparently in different pen and writing which is indicative of ante time and interpolation putting the entire investigation into poor light.
50.In case titled Zofar v. State, (Delhi) 2000 Crl. LJ 1589 it has been Page 19 /26 of Judgment State Vs. Raj Kumar , Gajender Singh and Sachin Kumar dt . 17.5.2012 20 observed that :
"The number of the FIR (Ex. P.W. 1/B) given on the top of the aforesaid documents is in the same ink and in the same handwriting which clearly indicates that these documents were prepared at the same time. The Prosecution has not offered any explanation whatsoever as to under what circumstances number of the FIR (Ex. P.W. 1/B) has appeared on the top of the aforesaid documents, which were allegedly prepared on the spot before registration of the FIR. This gives rise to two inferences that either the FIR (Ex. P.W. 1/B) was recorded prior to the alleged recovery of the contraband or number of the said FIR was inserted in these documents after its registration. In both the situations it seriously reflects upon the veracity of the prosecution version given by the aforesaid witnesses and creates a good deal of doubt about recovery of the contraband in the manner alleged by the prosecution."
51.In another case titled Rajbir Singh v. State, (Delhi)2000 Crl. LJ 1652 while dealing with search and seizure of Recovery of contraband material from accused , it was observed:
" All documents such as intimation of secret information, notice under Section 50, seizure memo etc. bear number of FIR, in same ink and same handwriting showing that all these documents prepared at same time Such like serious infirmities in prosecution case overlooked by the trial Judge . Conviction and sentence deserve to be set aside."
52.Post arrest of accused Raj Kumar and Gajender , it has been shown that Page 20 /26 of Judgment State Vs. Raj Kumar , Gajender Singh and Sachin Kumar dt . 17.5.2012 21 family of Raj Kumar was informed by phone but neither any name of particular of any relative have been disclosed which is violation of direction of Hon'ble Supreme Court. As regards Gajender , it is shown that he was taken to his own house after the arrest but his family refused to sign the memo. Even this gesture by the IO appears to be improbable in so far neither there was any occasion nor any reason for police party to take the accused to his house simply to inform about his arrest. Falsity of the prosecution case is also evident from the fact the personal search memo prepared qua these two accused make clear with the bare eyes that several items like door lock , key and other articles have been added in them subsequent to the signing by the accused persons. The writing work is crowded / cramped over the signature but is relaxed and spacious elsewhere.
53.As regards the charge of recovery of fire arm on the pointing out of accused Sachin from the house of his inlaws at Gokul Puri on 19.3.2009, record reveals that no such disclosure was made by him in his statement Ex.PW15/C. It is a settled legal proposition that until and unless Page 21 /26 of Judgment State Vs. Raj Kumar , Gajender Singh and Sachin Kumar dt . 17.5.2012 22 disclosure statement made by an accused U/s 25 of Evidence Act, recovery in question in pursuance thereof can not be covered U/s 27 of Evidence Act. Moreso, when such an accused was already in Jail in some other case.
54.In case titled, Dhimappa Jinnappa Naganur Vs. State of Karnataka, AIR 1993 SC 1469 while dealing with a murder case where recovery of weapon of offence was shown to have been effected on the pointing out of accused but without recording of any prior disclosure statement it was observed by Hon'ble Supreme Court that:
"The only evidence recording the disclosure is " come with me" and thereafter the accused proceeded towards Harugeri and stopped near the stream situated at a distance of about 2 kms away and the accused took out the axe from inside the nallah (stream). In the absence of any disclosure statement recovery of axe itself become meaningless "
55.Even otherwise the claimed recovery not only does not inspire confidence for the reason that despite it being effected form a residential house , no attempt was made to rope in any public person or ensure the compliance to safeguards provided by Section 100 Cr.P.C.
56.Section 100 Cr. PC runs as under :
Page 22 /26 of Judgment State Vs. Raj Kumar , Gajender Singh and Sachin Kumar dt . 17.5.2012 23 Section 100 Cr. PC: Persons in charge of closed place to allow search (1) Whenever any place liable to search or inspection under this chapter is closed, any person residing in, or being in charge of, such place, shall, on demand of the officer or other person executing the warrant, and on production of the warrant, allow him free ingress thereto, and afford all reasonable facilities for a search therein.
(2) If ingress into such place cannot be so obtained, the officer or other person executing the warrant may proceed in the manner providing by subsection (2) of Section 47.
(3) Where any person in or about such place is reasonably suspected of concealing about his person any article for which search should be made, such person may be searched and if such person is a woman, the search shall be made by another woman with strict regard to decency.
(4) Before making a section under this Chapter, the officer or other person about to make it shall call upon two or more independent and respectable inhabitants of the locality in which the place to be searched is situate or of any other locality if no such inhabitant of the said locality is available or is willing to be a witness to the search, to attend any witness the search and may issue an order in writing to them or any of them so to do.
(5) The search shall be made in their presence,and a list of all things seized in the course of such search and of the places in which they are respectively found shall be prepared by such officer or other person and signed by such witnesses; but no person witnessing a search under this section shall be required to attend the Court as a witness of the search unless specially summoned by it.
(6) The occupant of the place searched, or some person in his behalf, Page 23 /26 of Judgment State Vs. Raj Kumar , Gajender Singh and Sachin Kumar dt . 17.5.2012 24 shall, in every instance, be permitted to attend during the search, and a copy of the list prepared under this section, signed by the said witnesses, shall be delivered to such occupant or person.
(7) When any person is searched under subsection (3),a list of all things taken possession of shall be prepared, and a copy thereof shall be delivered to such person.
(8) Any person who, without reasonable cause, refuses or neglects to attend and witness a search under this section, when called upon to do so by an order in writing delivered or tendered to him, shall be deemed to have committed an offence under section 187 of the Indian Penal Code.
57.In case titled Ram Kishore Vs. State 1990 RLR 154 (DB) , Division Bench of Hon'ble Delhi High Court while discussing Section 100 Cr.P.C. observed:
"It is obligatory on the part of the Police Officer to call on and get two or more respectable inhabitants of the locality to be the witnesses of the search. These witnesses must be called before the search is started. In this case , this precaution has not been taken ... even though the places were such where respectable persons of the locality were available. ......... this makes the recovery and its identification doubtful."
58.In case titled Jaivir Singh Vs. State , 1995 Crl. L.J. 1477 it has been observed by Hon'ble Delhi High Court that :
"Non compliance of provision of S.100(4), Cr.P.C. requiring joining of two witnesses of locality for Page 24 /26 of Judgment State Vs. Raj Kumar , Gajender Singh and Sachin Kumar dt . 17.5.2012 25 carrying out search of room of accused - recoveries of robbed properties, blood stained clothes and weapon of offence at instance of accused, doubtful - Guilt of accused not proved beyond reasonable doubt
- Conviction not proper."
59.In case titled State of MP Vs. Ram Parkash , 1989 Cr.LJ 1585 Hon'ble High Court while discussing the mandatory provision of 100 Cr.P.C. held that :
"Seizures evidenced by ....... according to us , must be regarded doubtful for the singular reason that the seizures were not made in accordance with salutary provisions of 100 (4) Cr.P.C. There is a clear breach in the case of each of the seizures of the statutory safeguard which requires " two or more independent and respectable inhabitants of the locality" should be called to witness the seizure made under the Code. The prosecution has not come forward with any explanation as to why provisions of Section 100 (4) Cr.P.C. could not be complied with."
60.Even otherwise such a recovery , even if believed , can not be said to be under exclusive possession of the accused in so far as recovery was shown affected not from his own house but was shown to have been effected from the house of his inlaws. Such a weapon which is not in exclusive possession of the accused can not be read and relied against him. High Page 25 /26 of Judgment State Vs. Raj Kumar , Gajender Singh and Sachin Kumar dt . 17.5.2012 26 handedness on the part of the Investigating Officer is also apparent from the fact that the arm is shown recovered on the pointing out of accused Baljinder form Meerut UP but yet he is chargesheeted and charged for the same in Delhi despite that arm having no connection in this case.
61.In view of the above discussion and case laws I have no hesitation to conclude that prosecution failed miserably to bring home the guilt of accused Raj Kumar Sharma, Gajender and Sachin beyond shadow of doubt. Benefit of doubt is therefore, given to accused Raj Kumar Sharma, Gajender and Sachin. They stand acquitted of the charges framed. They be released from J/c forthwith if not required in any other case subject to furnishing bond of Rs.10,000/ which shall be deemed canceled after the expiry of period of 6 months in terms of Section 437A Cr.P.C. File be consigned to RR.
ANNOUNCED AND DICTATED IN OPEN COURT ON : 17.5.2012 (SURINDER S. RATHI) Addl. Sessions Judge02 Central : Delhi Page 26 /26 of Judgment State Vs. Raj Kumar , Gajender Singh and Sachin Kumar dt . 17.5.2012 27 Page 27 /26 of Judgment State Vs. Raj Kumar , Gajender Singh and Sachin Kumar dt . 17.5.2012