Delhi District Court
State vs . (1). Anil @ Leela on 26 September, 2015
FIR No. 258/11; U/s 307/186/353/34 IPC & 25/27 Arms Act; P.S. Crime Branch D.O.D.: 26.09.2015 IN THE COURT OF SHRI VIDYA PRAKASH: ADDL. SESSIONS JUDGE04 (NORTH): ROHINI COURTS: DELHI Session Case No. 146/14 Unique Case ID No. 02404R0360602011 State Vs. (1). Anil @ Leela S/o Sh. Ram Niwas R/o Village Karor, PS Sampla, District Rohtak, Haryana. (2). Sunil @ Banda S/o Sh. Rajender R/o Village Chirasmi, P.S. Gannaur, District Sonepat, Haryana. FIR No. : 258/11 Police Station : Crime Branch Under Sections : 307/186/353 IPC & 25/27 Arms Act Date of committal to Sessions Court : 09.04.2012 Date on which judgment was reserved: 26.09.2015 Date on which Judgment pronounced : 26.09.2015 JUDGMENT
BRIEF FACTS OF THE CASE
1. The case of the prosecution as mentioned in the chargesheet is as under:
(i). That on 04.09.2011, SI Parveen Kumar (PW5) received secret information that three gangsters of Haryana who were State V/s Anil @ Leela etc. Page 1 of 25 FIR No. 258/11; U/s 307/186/353/34 IPC & 25/27 Arms Act; P.S. Crime Branch D.O.D.: 26.09.2015 involved in various cases of murder and robberies, are hiding themselves in MIG Flats, Narela and they were also having huge quantity of arms and ammunitions. Secret informer further informed that said three gangsters would come for committing some offence at about 9.00 am in I10 car and one Maruti A Star car and could be apprehended if raid is conducted. SI Parveen Kumar shared the secret information with senior officers including Inspector Bhagwati Parsad and lodged the said information vide DD no. 35 in roznamcha;
(ii). After receipt of secret information from senior police officers, SI Parveen Kumar (PW5) prepared raiding party consisting of himself, HC N.K Pavitran (PW1); HC Vinod Kumar (PW4); HC Rajiv Mohan, HC Lakhwinder (PW12), Ct.
Tehjid Haider, Ct. Rajesh, Ct. Manjeet (PW11) and Ct. Sanjay The members of raiding party were issued official weapons and thereafter, they all left in official gypsy no. DL1LCJ4417 and in private Maruti Esteem Car no. DL2CAA5841 at about 6.30 am vide DD no. 36. They all alongwith secret informer reached near bus stand of Shardanand College, G.T. Karnal Road at about 6.35 am, where inspector Bhagwati Parsad and SI Parveen Kumar shared secret information with four passersby and requested them to join the raiding party but they all left on expressing their personal difficulties;
State V/s Anil @ Leela etc. Page 2 of 25 FIR No. 258/11; U/s 307/186/353/34 IPC & 25/27 Arms Act; P.S. Crime Branch D.O.D.: 26.09.2015
(iii). That at about 8.30 am, the members of raiding party noticed one Maruti AStar car and white I10 car having registration numbers of Haryana being parked at service road of pocketIV, SectorA9, Narela, Delhi. Secret informer informed that the said two cars were belonging to the same gangsters. Accordingly, members of raiding party took their positions and laid a trap. At about 9.00 am, three boys came outside the flats. The secret informer pointed out towards them to be the same persons who were involved in various criminal cases. Accordingly, the members of raiding party called upon all the said three boys to surrender themselves, on which they started running in different directions and also took out their weapons. One of them fired towards HC N.K Pavitran from his pistol but bullet did not hit him and ultimately, HC N.K Pavitran managed to snatch the weapon from the hand of said offender and overpowered him. The name of said boy was revealed to be accused Anil @ Leela. Similarly, other boy also fired at Ct. Sanjay but Ct. Sanjay managed to save himself and ultimately, he alongwith HC Lakhwinder managed to apprehend him and his name was revealed as accused Sunil @ Banda. However, their third associate managed to flee away from the spot. Thereafter, the members of raiding party recovered arms and ammunitions not only from the possession of these two accused but also from the State V/s Anil @ Leela etc. Page 3 of 25 FIR No. 258/11; U/s 307/186/353/34 IPC & 25/27 Arms Act; P.S. Crime Branch D.O.D.: 26.09.2015 aforesaid two cars;
(iv). It is further case of prosecution that SI Parveen Kumar carried out relevant proceedings with regard to preparing rough sketches of seized arms and ammunitions; preparing their pullandas; sealing them with the seal of PKD and taking them into possession;
(v). Thereafter, SI Parveen Kumar also seized both the said cars and prepared rukka and got the FIR in question registered. Investigation was entrusted to SI Anuj Nautiyal (PW10) who reached at the spot;
(vi). It is further case of prosecution that SI Anuj Nautiyal arrested both the accused persons and prepared site plan of the spot. He also recorded statements U/s 161 Cr.PC of the witnesses and got the relevant exhibits deposited in FSL, Rohini;
(vii). It is further case of prosecution that complaint U/s 195 Cr.Pc was also filed before CMM Delhi and after collecting FSL result, requisite sanction U/s 39 Arms Act was granted by Competent Authority and same was filed before the Court. After completion of investigation, chargesheet was filed before the Court of Ld. M.M.
2. After compliance of section 207 Cr.P.C., the case was committed to the Court of Sessions and was assigned to Ld. Predecessor of this Court.
State V/s Anil @ Leela etc. Page 4 of 25 FIR No. 258/11; U/s 307/186/353/34 IPC & 25/27 Arms Act; P.S. Crime Branch D.O.D.: 26.09.2015 CHARGES FRAMED AGAINST THE ACCUSED PERSONS
3. After hearing arguments on the point of charge, Ld. Predecessor of this Court was pleased to frame the charges punishable U/s 186/353/307 IPC, U/s 25 Arms Act and U/s 103 D.P. Act against accused Anil @ Leela and charges punishable U/s 186/353/307 IPC and U/s 25 & 27 Arms Act against accused Sunil @ Banda vide order dated 26.05.2012, to which both accused persons pleaded not guilty and claimed trial.
4. In support of its case, prosecution has examined as many as nine witnesses namely PW1 ASI N.K. Pavitran, PW2 Sh. Anand Kumar, PW3 Sh. M.C. Katoch, PW4 HC Vinod Kumar, PW5 SI Parveen Kumar, PW6 HC Chand Ram, PW7 HC Jag Narain, PW8 Dr. Joy Tirkey, PW9 HC Sukhbir Singh, PW10 SI Anuj Nautiyal, PW11 HC Manjeet and PW12 HC Lakhvinder during trial.
5. It may be noted here that Ld. Additional PP dropped PWs namely PW HC Rajiv Mohan, Ct. Sanjay and Ct. Tehjib Haider from the list of witnesses on 02.03.2015 as the said witnesses were of repetitive facts.
6. It may be mentioned here that both the accused persons made joint statement during trial on 02.02.2015 that they were not disputing the contents of FSL result dated 29.02.2012, relied by prosecution in the present case. Accordingly, the FSL result was exhibited as Ex.PX1 on 02.02.2015 and consequently, Ld. Additional PP also dropped PW namely Sh. R. Suresh, Sr. Scientific Officer (Ballistic), FSL, Rohini from the list State V/s Anil @ Leela etc. Page 5 of 25 FIR No. 258/11; U/s 307/186/353/34 IPC & 25/27 Arms Act; P.S. Crime Branch D.O.D.: 26.09.2015 of witnesses in view of the said statement.
7. It may further be mentioned here that both the accused persons made joint statement during trial on 21.08.2014 that they were not disputing the identity of case property and its production was not required before the Court during further trial.
8. Thereafter, statements U/s 313 Cr.P.C. of both the accused persons were recorded, during which all the incriminating evidence were put to them which they denied. The defence of both the accused persons is of general denial. Both the accused claimed that they have been falsely implicated in this case. However, both the accused persons did not wish to lead Defence Evidence.
9. I have heard Sh. Pankaj Bhatia, Ld. Addl. PP on behalf of State and ld. counsel Sh. Nitin Vashisht, Adv. for both accused persons. I have also gone through the material available on record.
10. Before discussing the rival submissions made on behalf of both the sides, it would be appropriate to discuss, in brief, the testimonies of prosecution witnesses examined during trial. The testimonies of prosecution witnesses is detailed as under: PUBLIC WITNESS:
11. PW2 Sh. Anand Kumar: This witness is the co owner of MIG Flat No. 198, PocketIV, Sector A9, Narela, Delhi. He deposed that he had given the said flat on rent to two boys i.e. both the accused herein. After 34 days, he came to know that both the accused were apprehended State V/s Anil @ Leela etc. Page 6 of 25 FIR No. 258/11; U/s 307/186/353/34 IPC & 25/27 Arms Act; P.S. Crime Branch D.O.D.: 26.09.2015 by the police. He identified both the accused during trial.
He further deposed that he had given his said flat on rent to both the accused on 01.10.2011 at monthly rent of Rs. 3000/ but he did not intimate the said fact to his employer. He also did not get tenant verification of the accused conducted through police.
This witness has not been cross examined by accused persons despite grant of opportunity.
POLICE WITNESSES:
12. PW1 ASI N.K. Pavitran, PW4 HC Vinod, PW5 SI Parveen Kumar, PW11 HC Manjeet and PW12 HC Lakhvinder : As per the case of prosecution, the aforesaid five witnesses alongwith other police officials were part of the raiding party prepared under the supervision of Inspector Bhagwati Parsad. They all deposed on the lines of prosecution story as mentioned in the charge sheet. They deposed that HC N.K Pavitran (PW1), HC Lakhwinder (PW12), Ct. Tehjeeb Haider and Ct. Sanjay were in uniform. They further deposed that four passersby were also requested to join the raiding party near bus stand Shardhanand College, GTK Karnal Road but none agreed and they all left on expressing their personal difficulties. Thereafter, they reached at the area near MIG Flats, Narela, where two cars i.e. one Maruti AStar car bearing registration no. HR19F0328 and white colour I10 car bearing registration no. HR99(T) HJ7428 were parked. At the instance of secret informer who State V/s Anil @ Leela etc. Page 7 of 25 FIR No. 258/11; U/s 307/186/353/34 IPC & 25/27 Arms Act; P.S. Crime Branch D.O.D.: 26.09.2015 pointed out that the said vehicles were belonging to criminals, trap was laid and members of raiding party took positions near said two vehicles.
They further deposed that at about 9.00 am, three persons including the present two accused were seen coming out of the flats. When they tried to apprehend them and asked them to surrender before the police, they all three ran in different directions.
They further deposed that HC N.K. Pavitran and Ct. Tehjeeb Haider chased accused Anil @ Leela who fired at HC N.K Pavitran but was over powered by said two police officials. He was found in possession of one loaded pistol.
They further deposed that accused Sunil @ Banda was chased by HC Lakhwinder and Ct. Sanjay. Said accused had fired towards Ct. Sanjay but he was also overpowered and was found in possession of one loaded pistol. Their third associate managed to flee away from the spot.
They further deposed that pistol recovered from accused Anil @ Leela was found loaded with seven live cartridges out of which six were in magazine and one was in the chamber of the pistol. The said pistol was made in USA. The pistol recovered from the possession of accused Sunil @ Banda was found containing six live cartridges out of which five were in magazine and one was in chamber. The said pistol was made in Italy.
They further deposed that two empty cartridges were also found recovered from service road and same were also lifted by them. They also deposed about the relevant proceedings i.e. preparing rough State V/s Anil @ Leela etc. Page 8 of 25 FIR No. 258/11; U/s 307/186/353/34 IPC & 25/27 Arms Act; P.S. Crime Branch D.O.D.: 26.09.2015 sketches Ex. PW1/A and PW5/A of both the recovered pistols and cartridges, taking their measurements, preparing their pullandas sealed and sealing them with the seal of PKD by SI Parveen Kumar. They also proved seizure memos Ex. PW1/B and Ex. PW5/B of said arms and ammunitions. They also exhibited the rough sketches as Ex. PW1/G and Ex. PW5/C of empty cartridges and their seizure memos as Ex. PW1/H and Ex. PW5/D respectively.
They further deposed that at the instance of accused Anil @ Leela, two more pistols were got recovered from below driver seat of Maruti AStar car. The said pistols were also found loaded with live cartridges. Relevant proceedings were also carried out with regard to said recovered arms and ammunitions and relevant memos have been proved on record.
They further deposed that at the instance of accused Sunil @ Banda, one pistol made in USA was recovered from below front seat adjacent to driver seat of I10 car and said pistol was found loaded with seven live cartridges in its magazine. They also deposed about the relevant proceedings carried out with regard to said arms and ammunitions.
They further deposed that after registration of FIR on the basis of rukka prepared by SI Parveen Kumar, investigation was assigned to SI Anuj Nautyal who prepared site plan at the instance of PW5 SI Parveen Kumar and also arrested both the accused after recording their disclosure statements made before him.
State V/s Anil @ Leela etc. Page 9 of 25 FIR No. 258/11; U/s 307/186/353/34 IPC & 25/27 Arms Act; P.S. Crime Branch D.O.D.: 26.09.2015 All the aforesaid five witnesses have correctly identified both the accused as well as case property Ex. P1 to Ex. P8 during trial.
All the aforesaid five witnesses have been cross examined at length by accused persons.
13. PW3 ACP Sh. M.C. Katoch: This witness has proved complaint U/s 195 Cr.PC given by him as ACP, Special Team, Crime Branch, Prashant Vihar, for prosecuting accused persons namely Anil Rohilla @ Leela and Sunil @ Banda on 04.10.2011. He proved the said complaint as Ex.PW3/A. Nothing material came on record during cross examination of this witness.
14. PW6 HC Chand Ram: This witness was working as Duty Officer in PS Crime Branch on 04.10.2011. He proved factum regarding registration of FIR in question by him on that day. He proved computerized copy of FIR in question as Ex.PW6/A, Certificate U/s 65B of Indian Evidence Act as Ex.PW6/B and his endorsement on the rukka as Ex.PW6/C. He deposed that thereafter, investigation was entrusted to SI Anuj Nautiyal.
Nothing material came on record during cross examination of this witness.
15. PW7 HC Jag Narain: This witness was posted as MHC(M) in PS Crime Branch during the relevant period. He deposed that on 04.10.2011, SI Anuj Nautiyal (IO) had deposited nine sealed pullandas out State V/s Anil @ Leela etc. Page 10 of 25 FIR No. 258/11; U/s 307/186/353/34 IPC & 25/27 Arms Act; P.S. Crime Branch D.O.D.: 26.09.2015 of which seven pullandas were sealed with the seal of PKD and remaining two pullandas were sealed with the seal of AN besides two car i.e. Maruti A Star car bearing no. HR19F0328 and I10 car bearing no. HR99(T) HJ7428, 18 mobile phones and 15 SIM Cards in unsealed condition and personal search articles of accused persons, in Malkhana vide entry at serial no. 1340 in register no. 19. He proved copy thereof as Ex.PW7/A. He further deposed that on 09.10.2011, SI Anuj Nautiyal(IO) had deposited one Maruti Alto Car no. HR487071, in Malkhana vide entry at serial no. 1352A in register no. 19. He proved copy thereof as Ex.PW7/B. He further deposed that on 20.10.2011, all the exhibits of the case were sent to FSL, Rohini vide RC no. 439/21/11 through Ct. Manjeet. He proved copy of said RC as Ex.PW7/C. He also proved copy of acknowledgment as Ex.PW7/D. He further deposed that on 07.03.2012, all the said nine sealed parcels were deposited by SI Anuj Nautiyal in the malkhana.
This witness has not been cross examined by accused persons despite grant of opportunity.
16. PW8 Dr. Joy Tirkey: This witness was posted as Additional DCP in Crime Branch on 09.03.2012. He deposed that he had accorded sanction U/s 39 Arms Act to prosecute accused Anil @ Leela and Sunil @ Banda for offence punishable U/s 25 Arms Act after going through entire police file containing relevant documents including seizure memos of the State V/s Anil @ Leela etc. Page 11 of 25 FIR No. 258/11; U/s 307/186/353/34 IPC & 25/27 Arms Act; P.S. Crime Branch D.O.D.: 26.09.2015 arms and ammunitions, FSL results given by Ballistic Expert and Statements U/s 161 Cr.P.C. He proved those sanctions as Ex.PW8/A and Ex.PW8/B. In cross examination, he denied the suggestion that he had accorded sanction Ex.PW8/A and Ex.PW8/B without going through any record or FSL results or in mechanical manner.
17. PW9 HC Sukhbir Singh: This witness was working as Duty Officer in Special Team, Crime Branch Prashant Vihar on 04.10.2011. He deposed that Inspector Bhagwati Parsad had telephonically given information in the office of Special Team Crime Branch regarding apprehension of two persons alongwith illegal arms and ammunitions. He recorded the said information vide DD no.14 and handed over copy thereof to SI Anuj Nautiyal. He proved copy of said DD as Ex.PW9/A. During cross examination, he denied the suggestion that no such information was received by him or that DD no. 14 was ante dated or ante timed.
18. PW10 SI Anuj Nautiyal: He is the second IO in this case. He deposed about the investigation carried out by him after registration of FIR in this case. He corroborated the testimonies of police witnesses who were members of raiding party and were examined during trial.
This witness categorically deposed that custody of both the accused alongwith seized arms and ammunitions and their relevant documents were handed over to him. He had prepared site plan State V/s Anil @ Leela etc. Page 12 of 25 FIR No. 258/11; U/s 307/186/353/34 IPC & 25/27 Arms Act; P.S. Crime Branch D.O.D.: 26.09.2015 Ex.PW10/A. He also deposed that after interrogating the accused persons, they were arrested vide memos Ex.PW1/O and Ex.PW1/N. He further deposed that accused Anil @ Leela led them to flat no. 198, PocketIV, Sector A9, Narela, Delhi wherefrom, he got recovered one polythene lying inside the box of bed. Said polythene was found containing three magazines without cartridges. The said accused also got recovered another polythene from inside the box and same was found containing 29 live cartridges of different sizes. He carried out relevant proceedings with regard to said ammunitions and seized them in the present case. He also deposed that accused Anil @ Leela also got recovered another polythene from the same box of bed. Same was found containing 18 mobile phones and 15 SIM cards. They were seized vide memo Ex.PW1/M. Accused Anil @ Leela also led them to flat no. 198, PocketIV, Sector A9, Narela, Delhi on 09.10.2011 and pointed out towards one Alto car bearing no. HR487071 and claimed to have produced the said car with looted money. Said car was also seized vide memo Ex.PW10/B. He further deposed that on 20.10.2011, the relevant exhibits were got deposited at FSL, Rohini through Ct. Manjeet and after collecting FSL result, complaint U/s 195 Cr.P.C. was prepared and filed before the concerned Court. He also deposed that sanction U/s 39 Arms Act was also given by Competent Authority and same were filed alongwith supplementary charge sheet.
He has been cross examined at length on behalf of accused State V/s Anil @ Leela etc. Page 13 of 25 FIR No. 258/11; U/s 307/186/353/34 IPC & 25/27 Arms Act; P.S. Crime Branch D.O.D.: 26.09.2015 persons.
ARGUMENTS ADVANCED AND CASE LAW CITED
19. It has been argued by Ld Additional PP for the State that all the police witnesses who were members of raiding party and had apprehended both the accused on 04.09.2011, have deposed on the lines of prosecution story and have corroborated each other. He further contended that defence could not impeach testimonies of said witnesses during cross examination and therefore, prosecution has been able to establish the charges levelled against accused persons beyond reasonable doubt. He further pointed out that accused namely Anil @ Leela was found in possession of one country made pistol alongwith one magazine containing seven live cartridges and he also got recovered two more pistols alongwith eight live cartridges each from Maruti AStar car bearing registration no. HR19F0328 and thereafter, he also got recovered three magazines and 29 cartridges from flat no. 198, 2nd floor, Sector A9, Narela whereas accused Sunil @ Banda was found in possession of one pistol, one magazine containing six live cartridges and he also got recovered one more pistol alongwith seven live cartridges from I10 car bearing registration no. HR99(T) HJ 7428. Therefore, both the accused are also liable to be convicted in respect of offence U/s 25 Arms Act. Ld. Additional PP also referred to the relevant portions of the testimonies of police witnesses namely PW1 ASI N.K. Pavitran, PW4 HC Vinod, PW5 SI Parveen, PW11 HC Manjeet and PW12 HC Lakhvinder, in order to buttress the aforesaid State V/s Anil @ Leela etc. Page 14 of 25 FIR No. 258/11; U/s 307/186/353/34 IPC & 25/27 Arms Act; P.S. Crime Branch D.O.D.: 26.09.2015 submissions made by him before the Court. Ld Additional PP urged that there is a complaint U/s 195 Cr.P.C. proved by prosecution during testimony of PW13 as Ex.PW12/J and therefore, the prosecution has also been able to prove the offence U/s 186 IPC in this case.
20. Per contra, Ld defence counsel vehemently argued that prosecution has miserably failed to prove its case against any of the accused beyond reasonable doubt. In support of said submission, Ld. defence counsel submitted that PW2 Anand Kumar has failed to support the case of prosecution due to which reason, he was also cross examined at length by Ld. Additional PP for the State.
21. Ld. counsel of accused persons also pointed out certain contradictions appearing on record during testimonies of police witnesses and urged that said contradictions are material contradictions which create reasonable doubt in the case of prosecution due to which benefit of doubt should be given to the accused persons. He further argued that no independent public witness has been joined either in the raiding party or at the time of recovery proceedings carried out at the spot.
22. It is needless to mention here that in order to bring home the charge in respect of offence U/s 186/34 IPC, the prosecution was required to prove the following ingredients:
a). That the complainant and/or any other aggrieved person was / were public servants within the meaning of Section 21 IPC.
State V/s Anil @ Leela etc. Page 15 of 25 FIR No. 258/11; U/s 307/186/353/34 IPC & 25/27 Arms Act; P.S. Crime Branch D.O.D.: 26.09.2015
b). Said public servants were performing their official duty at the time of incident; and
c). Those public servants were obstructed or prevented from discharging their public functions by the accused persons.
23. In addition thereto, there is also a requirement under the law that complaint in writing of concerned public servant or of some other public servant to whom the complainant/victim is administratively subordinate, shall also be filed before the Court in respect of offence U/s 186 IPC as stipulated by Section 195(1)(a)(i) Cr.P.C. without which no cognizance can be taken by the Court
24. In the case in hand, aforesaid two ingredients that PW1, PW4, PW5, PW11 and PW12 were public servants within the meaning of Section 21 IPC and they were performing their official duty at the time of occurrence, are duly satisfied but the last and one of the most important ingredients of the offence that those public servants were obstructed or were prevented from discharging their public duty by any of the accused, is found missing. None of the relevant prosecution witnesses even whispered that any of them was obstructed or was prevented from discharging public functions by the accused herein. In other words, there is no iota of evidence available on record in this regard. Therefore, Court is of the view that prosecution has failed to prove the charge for the offence State V/s Anil @ Leela etc. Page 16 of 25 FIR No. 258/11; U/s 307/186/353/34 IPC & 25/27 Arms Act; P.S. Crime Branch D.O.D.: 26.09.2015 punishable U/s 186 IPC against the accused persons.
25. Now, I shall discuss about the offence punishable under Section 353/34 IPC. In order to prove the said offence, it was essential for the prosecution to prove the following ingredients:
a). That the complainant and/or any other aggrieved person was / were public servants within the meaning of section 21 IPC;
b). Said public servants were performing their official duty at the time of incident;
c). The accused either assaulted or used criminal force to any of those public servants while he or she was executing his/her duty as such public servant, or with intent to prevent or deter such public servants from discharging the duty.
26. Coming back again to the facts of the present case. As already stated above, the prosecution has been able to prove that the police witnesses i.e. PW1, PW4, PW5, PW11 and PW12 were public servants and were performing their official duties at the time of occurrence, but there is no cogent evidence available on record to show that any of the accused either assaulted or used criminal force to any of the public servants while they were discharging their duties as such public servants or with intent to prevent or deter them from discharging their duty. Rather, it has come on record during cross examination of some of those witnesses that no hurt State V/s Anil @ Leela etc. Page 17 of 25 FIR No. 258/11; U/s 307/186/353/34 IPC & 25/27 Arms Act; P.S. Crime Branch D.O.D.: 26.09.2015 whatsoever was caused to any of the members of raiding party. There is no piece of evidence on record showing that any of the accused had used any sort of criminal force against any of those police officials or had any intent to prevent them from discharging their duty. The case of the prosecution as propounded in the chargesheet says that after trap was laid down by members of raiding party and the accused persons came outside MIG Flat and were asked to surrender themselves, accused persons tried to flee away and during said process, they fired bullets towards two of the police officials i.e. PW1 ASI N.K. Pavitran and PW Ct. Sanjay, but fortunately, both of them escaped unhurt and the police officials managed to overpower both the accused and snatched arms and ammunitions from their possession. That being so, Court is in agreement with the contention raised on behalf of accused that prosecution has failed to establish their guilt in respect of offence punishable U/s 353/34 IPC.
27. Although, accused Anil @ Leela has also been charged for the offence punishable U/s 103 D.P. Act on the allegations that he got recovered 18 mobile phones and 15 SIM cards from Flat No. 198, Second Floor, Sector A9, Narela, Delhi and he could not produce any documentary proof of his ownership in respect of recovered mobile phones and SIM Cards, but again no sufficient evidence has been led by prosecution during trial to prove the said offence. It is relevant to note that said mobile phones and SIM Cards were produced in unsealed condition during testimony of PW1 ASI N.K. Pavitran. No explanation whatsoever State V/s Anil @ Leela etc. Page 18 of 25 FIR No. 258/11; U/s 307/186/353/34 IPC & 25/27 Arms Act; P.S. Crime Branch D.O.D.: 26.09.2015 has been furnished by alleged recovery witnesses more particularly by PW5 SI Parveen Kumar who is claimed to have seized the said articles vide seizure memo (Ex.PW1/M), as to why said articles were not sealed immediately after their recovery at the instance of accused Anil @ Leela as alleged by them.
28. Considering the fact that said mobile phones and SIM Cards were shown to have been never sealed at any point of time, the possibility of those articles being planted upon said accused, cannot be ruled out. Same creates reasonable doubt in the case of prosecution about the recovery of those mobile phones and SIM Cards. Thus, accused Anil @ Leela deserves to be given benefit of doubt under the law. Consequently, it is held that the prosecution has also failed to prove the charge for the offence punishable U/s 103 D.P. Act against accused Anil @ Leela.
29. This brings me down to the offence punishable U/s 307/34 IPC charged against the accused persons. In order to establish the charge in respect of offence U/s 307/34 IPC, the prosecution was required to establish that the accused persons had committed any act with such intention or knowledge and under such circumstances that if by their said act, they would have caused death of any person, they would have been guilty of murder.
30. As already discussed above, the prosecution has examined five witnesses i.e. PW1, PW4, PW5, PW11 and PW12 in order to prove its case for the offence punishable U/s 307/34 IPC. All the said five police State V/s Anil @ Leela etc. Page 19 of 25 FIR No. 258/11; U/s 307/186/353/34 IPC & 25/27 Arms Act; P.S. Crime Branch D.O.D.: 26.09.2015 witnesses have deposed on identical lines and have supported the case of prosecution on all material aspects They have duly corroborated each other on all those relevant points. All these five witnesses have consistently deposed that when both the accused were asked to surrender themselves, accused Anil @ Leela fired bullet towards HC N.K Pavitran (PW1) but he escaped as the bullet did not hit him. Similarly, accused Sunil @ Banda fired towards Ct. Sanjay but bullet did not hit the said police official who went unhurt during the said attempt of accused to cause his death. Thereafter, both the said accused were overpowered by the police officials and pistols were snatched from their possession. Said pistols were found loaded with several live cartridges.
31. Although, Ld defence counsel argued that words engraved on the arms and ammunitions allegedly recovered from accused, were not mentioned on their rough sketches and seizure memos, which creates doubt in the case of prosecution but said contention does not carry any force as the words engraved on the recovered arms and ammunitions are found to have been duly mentioned in the relevant seizure memos as well as rough sketches Ex. PW1/B to Ex. PW1/I available on record.
32. There is no force in the contention raised on behalf of accused that for want of gun shot powder residue being seized from barrel of recovered pistols, the case of prosecution has become weak. No doubt, it would have been more appropriate for the relevant police witness i.e. PW5 SI Parveen to seize the gun powder residue which may be available in the State V/s Anil @ Leela etc. Page 20 of 25 FIR No. 258/11; U/s 307/186/353/34 IPC & 25/27 Arms Act; P.S. Crime Branch D.O.D.: 26.09.2015 barrels of the recovered pistols as well as to take hand wash of the accused persons but having not done so, the entire case of prosecution cannot be thrown away in the light of fact that all the aforesaid five police witnesses have consistently deposed that present two accused had attempted to commit murder of the police officials by firing towards them, when they were asked to surrender themselves before the police.
33. There is no merit in the next argument raised on behalf of accused that since PW4 and PW11 are not shown to have signed any of the memos, their presence at the spot becomes doubtful. It is relevant to note that there were 78 police officials who were part of the raiding party and some of them have signed on the relevant memos. There is no requirement of law that all the members of the raiding party or that all the persons in whose presence memos are prepared in criminal case, would necessarily put their signatures on all the memos.
34. Ld defence counsel has also argued that no independent public witness has been joined at the time of recovery of arms and ammunitions from the possession of both the accused or at the time when further arms and ammunitions are claimed to have been recovered at their instance. Ld defence counsel, therefore, submitted that non joining of independent public witness is fatal to the case of prosecution and both the accused deserve to be given benefit of doubt on that count. On the other hand, Ld Additional PP pointed out that efforts were made by police officials to join public witnesses in the raiding party but none had agreed State V/s Anil @ Leela etc. Page 21 of 25 FIR No. 258/11; U/s 307/186/353/34 IPC & 25/27 Arms Act; P.S. Crime Branch D.O.D.: 26.09.2015 and therefore, no benefit should be given to the accused for non joining of independent public witness. He also referred to the relevant portions of testimonies of police witnesses examined during trial for the said purpose.
35. No doubt, no independent public witness has been joined either in the raiding team or at the time of recovery of arms and ammunitions at the instance of accused but relevant recovery witnesses have sufficiently deposed that sincere efforts were made by them to join several passersby in the raiding party after sharing secret information but none agreed and all those public persons left without disclosing their names and addresses.
36. In the matter titled as " State of U.P. Vs. Anil Singh"
reported at AIR 1988 SC 1998, it has been held by Hon'ble Apex Court as under: "xxxxxx The case of prostitution is that few independent witnesses were indeed requested to become witness but they did not agree. It is not uncommon these days that people are reluctant to become witness in criminal trial cases. In such circumstances no benefit can be given to the accused for non joining off independent public witnesses. It is a matter of common knowledge that public persons are reluctant to become witnesses of criminal trial. It has been held in a number of judgments by Hon'ble Supreme court and High Courts that merely because public witnesses are not joined in a case, prosecution case cannot be thrown out. Xxxxxx"
37. In the matter titled as "Ambika Prasad & anr vs. State"
reported at 2002 (2) CRIMES 63 (SC), it has been held by Hon'ble State V/s Anil @ Leela etc. Page 22 of 25 FIR No. 258/11; U/s 307/186/353/34 IPC & 25/27 Arms Act; P.S. Crime Branch D.O.D.: 26.09.2015 Supreme Court that it is known fact that independent persons are reluctant to be a witness or to assist the investigation. Reasons are not far to seek. Firstly, in cases where injured witnesses of the close relative of the deceased are under constant threat and they dare not depose the truth before the Court, independent witnesses believe that their safety is not guaranteed. That belief cannot be said to be without any substance. Other reason may be the delay in recording the evidence of independent witnesses and repeated adjournments in the Court. In any case if independent persons are not willing to cooperate with the investigation, prosecution cannot be blamed at and it cannot be a ground for rejecting the evidence of injured witnesses.
38. After considering the testimonies of all the five police witnesses i.e. PW1, PW4, PW5, PW11 and PW12 coupled with the testimony of IO i.e. PW10 SI Anuj Nautiyal, there is no iota of doubt that the prosecution has been successful in establishing on record that both the accused had acted in furtherance of their common intention and both of them attempted to commit murder of police officials i.e. HC N.K. Pavitran (PW1) and Ct. Sanjay by firing bullets towards them. This is more so when both the accused persons could not impeach the testimonies of all the said witnesses through litmus test of cross examination. All the relevant prosecution witnesses have successfully withstood the test of cross examination and they remained consistent even during their respective cross examination conducted by defence. Thus, it is held that offence State V/s Anil @ Leela etc. Page 23 of 25 FIR No. 258/11; U/s 307/186/353/34 IPC & 25/27 Arms Act; P.S. Crime Branch D.O.D.: 26.09.2015 punishable U/s 307/34 IPC has been proved against both the accused persons beyond pales of reasonable doubt.
39. Now, I shall deal with the offences punishable U/s 25/27 Arms Act charged against the accused persons. For the reasons stated above, it is duly established on record that both the accused were found in possession of imported pistols and ammunitions not only from their possession but also at their instance from seized cars i.e. Maruti A Star car bearing no. HR19F0328 and I10 car bearing no. HR99(T) HJ7428.
40. Apart from above, the prosecution has also relied upon the report dt. 29.02.2012 of Ballistic Expert. The said report has not been disputed by the accused persons vide their joint statement recorded on 02.02.2015. The perusal of said report (Ex.PX1) shows that arms i.e. five pistols shown to have been recovered from both the accused persons were found to be in working order and were 'fire arms' as defined in Arms Act. Likewise, all the cartridges sent for examination in FSL Rohini, were also opined to be live cartridges and were 'ammunition' as defined in Arms Act.
41. Not only this, the prosecution has also examined PW8 Dr. Joy Tirkey who had accorded sanction U/s 39 Arms Act for prosecuting both the accused for the offence punishable U/s 25 Arms Act. The said sanctions have been proved as Ex.PW8/A and Ex.PW8/B respectively. Nothing contrary came on record during cross examination of PW8 so as to disbelieve his testimony recorded during trial. It has been duly established in view of the testimonies of aforesaid police witnesses that State V/s Anil @ Leela etc. Page 24 of 25 FIR No. 258/11; U/s 307/186/353/34 IPC & 25/27 Arms Act; P.S. Crime Branch D.O.D.: 26.09.2015 both the accused had used fire arms during the incident in question. Thus, Court is of the view that prosecution has also been successful in establishing guilt of both the accused persons in respect of offences punishable U/s 25/27 Arms Act beyond shadow of doubt.
42. In the light of above discussion, both the accused persons namely Anil @ Leela and Sunil @ Banda are hereby acquitted for the offences punishable U/s 186/353/34 IPC. Accused Anil @ Leela is also acquitted for the offence punishable U/s 103 D.P Act. However, both the said accused persons stand convicted for the offence punishable U/s 307/34 IPC as also for the offences punishable U/s 25/27 Arms Act.
Announced in open Court today
On 26.09.2015 (Vidya Prakash)
Additional Sessions Judge04 (North)
Rohini Courts, Delhi
State V/s Anil @ Leela etc. Page 25 of 25