Delhi District Court
State vs . Rajesh @ Dil Dil on 26 September, 2015
FIR No. 580/06; U/s 399/402/186/353/332/34 IPC & 25/27 Arms Act ; PS Mangol Puri D.O.D.: 26.09.2015 IN THE COURT OF SHRI VIDYA PRAKASH: ADDL. SESSIONS JUDGE04 (NORTH): ROHINI COURTS: DELHI Session Case No. 86/15 Unique Case ID No. 02404R0565962008 State Vs. Rajesh @ Dil Dil S/o Sh. Shish Pal R/o S582, Mangol Puri, Delhi FIR No. : 580/06 Police Station : Mangol Puri Under Sections : 399/402/186/353/307/332/34 IPC & 25/27 Arms Act. Date of committal to Sessions Court: 12.05.2011 Date on which judgment was reserved: 24.09.2015 Date on which Judgment pronounced: 26.09.2015 JUDGMENT
BRIEF FACTS OF THE CASE
1. Initially six accused persons including the aforesaid accused had been sent to face trial in respect of offences punishable U/s 399/402/186/332/353/30734 IPC and 25/27 Arms Act on the allegations that on 15.08.2006 at about 1.35 pm behind NDPL Sub Station, Mangolpuri Industrial Area PhaseI Delhi, they were planning to commit dacoity and when the police party conducted raid in order to apprehend State V/s Rajesh Dil Dil ("Acquitted") Page 1 of 26 FIR No. 580/06; U/s 399/402/186/353/332/34 IPC & 25/27 Arms Act ; PS Mangol Puri D.O.D.: 26.09.2015 them, they all obstructed the police officials and assaulted them while they were discharging their duties as public servants and also caused simple hurt on the members of the raiding party. It was also alleged that accused persons were armed with deadly weapons and they assaulted the police officials with those deadly weapons with such intention or knowledge and under such circumstances if by that act, they would have caused the death of any of those police officials, they would have been guilty of committing murder.
2. The case of prosecution as mentioned in the charge sheet is as under:
(i). That on 15.08.2006, SI R.K Maan (PW7) received secret information that 56 boys had been planing to commit dacoity in one abandoned building. The said information was recorded by him vide DD no. 13 and he also informed concerned SHO who directed him to prepare raiding party. Accordingly, SI R.K Maan prepared raiding party consisting himself, HC Sushil Kumar, Ct. Rakesh Kumar, Ct. Ram Phal, Ct. Baljeet Singh and Ct. Dharambir;
(ii). On that day at about 1.20 P.M, the raiding party consisting of aforesaid police officials alongwith secret informer went to the place of secret information on their private vehicles. SI R.K. Maan and HC Sushil Kumar visited near the place of information at the pointing out of secret informer. Thereafter, the other State V/s Rajesh Dil Dil ("Acquitted") Page 2 of 26 FIR No. 580/06; U/s 399/402/186/353/332/34 IPC & 25/27 Arms Act ; PS Mangol Puri D.O.D.: 26.09.2015 members of raiding party were briefed about the description of the said place. SI R.K. Maan also directed the members of raiding party to take their respective positions in all the four directions and also instructed them to fire towards the legs of the offenders if need arises. It was also agreed that HC Sushil Kumar would give signal by blowing whistle from his mouth;
(iii). At about 1.35 P.M, SI R.K Maan alongwith HC Sushil Kumar entered inside the said building from both the respective gates and heard the conversation of 56 boys found available therein. After hearing their conversation, HC Sushil Kumar blew a whistle and all the members of raiding party entered inside the building in order to apprehend those boys;
(iv). It is alleged that the present accused Rajesh @ Dil Dil fired at HC Sushil Kumar but it was misfired when HC Sushil Kumar caught hold of his hands and ultimately, HC Sushil Kumar snatched the pistol from the possession of said accused. Likewise, coaccused Anil (since acquitted) fired at Ct. Dharambir with pistol and coaccused Raj Kumar @ Anil (since acquitted) attacked with knife on Ct. Ram Phal but could not succeed. Coaccused Raju @ Raje (since acquitted) was also apprehended by the police officials. However, their two associates managed to flee away from the spot. In other words, out of those boys, four were apprehended while two managed to State V/s Rajesh Dil Dil ("Acquitted") Page 3 of 26 FIR No. 580/06; U/s 399/402/186/353/332/34 IPC & 25/27 Arms Act ; PS Mangol Puri D.O.D.: 26.09.2015 flee away from the spot;
(v). SI R.K. Maan carried out necessary proceedings including measuring the recovered arms and ammunitions, preparing their rough sketches, their seizure, etc. at the spot and got the FIR registered. The investigation was entrusted to SI Jogender Singh (PW6) who, accordingly, reached at the place of occurrence;
(vi). It is further case of prosecution that SI R.K Maan handed over recovered arms and ammunitions and the relevant memos prepared at the spot and the custody of accused persons namely Rajesh @ Dil Dil, Raj Kumar @ Anil, Anil and Raju @ Raja to SI Jogender Singh who interrogated the said accused persons, arrested them and recorded their disclosure statements;
(vii). It is further case of prosecution that SI Jogender Singh also recorded the statements of witnesses, prepared rough site plan of the place of occurrence, etc. during the course of investigation;
(viii). It is further case of prosecution that remaining two co accused namely Vinay and Sandeep @ Kala (since acquitted) were subsequently arrested in this case by SI Mahender Singh (PW13). After completion of investigation, charge sheet was filed before the Court.
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 Rajesh Dil Dil ("Acquitted") Page 4 of 26 FIR No. 580/06; U/s 399/402/186/353/332/34 IPC & 25/27 Arms Act ; PS Mangol Puri 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 U/s 186/332/353/307/34 IPC against accused persons namely Rajesh @ Dil Dil, Raj Kumar @ Anil, Anil, Raju @ Raja, Vinay and Sandeep @ Kala, separate charge in respect of offence U/s 25/27 Arms Act was also framed against accused persons namely Rajesh @ Dil Dil, Anil, Raju @ Raja and Raj Kumar @ Anil (since acquitted) and charge in respect of offences U/s 399/402 IPC was also framed against accused persons namely Rajesh @ Dil Dil, Raj Kumar @ Anil, Anil, Raju @ Raja, Vinay and Sandeep @ Kala vide order dated 26.07.2011 and charge in respect of offence U/s 174A IPC was also framed against accused Anil on 09.09.2014, to which all the accused persons pleaded not guilty and claimed trial.
4. In support of its case, prosecution examined fourteen witnesses namely PW1 Ct. Dharambir Singh, PW2 Ct. Ram Phal, PW3 Ct. Rakesh, PW4 HC Harkesh, PW5 HC Surender Kumar, PW6 Inspector Joginder Singh, PW7 Inspector R.K Maan, PW8 ACP Vikram Porwal, PW9 HC Sunil Kumar, PW10 HC Niranjan Singh, PW11 ASI Sushil Kumar, PW12 Ct. Nehru Lal, PW13 Retd. SI Mahender Singh and PW14 HC Yogesh Kumar during trial, when accused Rajesh @ Dil Dil stopped appearing during the course of trial. After following due process of law, said accused was declared Proclaimed Offender vide order dated State V/s Rajesh Dil Dil ("Acquitted") Page 5 of 26 FIR No. 580/06; U/s 399/402/186/353/332/34 IPC & 25/27 Arms Act ; PS Mangol Puri D.O.D.: 26.09.2015 13.03.2015 passed by this Court. On the same date i.e. 13.03.2015, remaining accused persons namely Raj Kumar @ Anil, Anil, Raju @ Raja, Vinay and Sandeep @ Kala were acquitted vide separate judgment passed by this Court.
5. It may also be mentioned here that present accused Rajesh @ Dil Dil was subsequently arrested in case FIR no. 341/15, U/s 379/356 IPC by the police officials of PS Sarita Vihar. Accordingly, an application dated 19.06.2015 was moved before this Court on 03.07.2015 informing the said fact. Consequently, production warrant was issued against accused Rajesh @ Dil Dil and he was taken into custody in the present case. Thereafter, prosecution examined PW15 Sh. B.K. Singh, DCP (EOW) during trial and closed the prosecution evidence.
6. It may be mentioned here that during the course of trial, Ld. Additional PP dropped PWs namely Ct. Baljeet No. 370/OD and HC Surender No. 403/OD and Ahlmad of the concerned Court from the list of witnesses as they were the witnesses of repetitive facts/formal witness in respect of which prosecution had already examined other witnesses namely PW1 Ct. Dharambir, PW6 SI R.K Maan, PW11 HC Sushil (now ASI).
7. Thereafter, statement U/s 313 Cr.P.C. of accused Rajesh @ Dil Dil was recorded during which all the incriminating evidence which came on record, were put to him which he denied. The said accused claimed that he is innocent and has been falsely implicated in this case. However, he opted not to lead any evidence towards his defence. State V/s Rajesh Dil Dil ("Acquitted") Page 6 of 26 FIR No. 580/06; U/s 399/402/186/353/332/34 IPC & 25/27 Arms Act ; PS Mangol Puri D.O.D.: 26.09.2015
8. I have already heard Sh. Pankaj Bhatia, Ld. Additional PP on behalf of State and Ld. counsel Sh. Arun Yadav, Adv. for accused Rajesh @ Dil Dil. I have also gone through the material available on record.
9. 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 which have come on record. The said testimonies are detailed as under: POLICE WITNESSES
10. PW1 Ct. Dharambir Singh, PW2 Ct. Ram Phal, PW3 Ct. Rakesh, PW7 Inspector R.K Maan (the then SI) and PW11 ASI Sushil Kumar (the then HC): All these five witnesses were members of the raiding party as per the case of prosecution. All the said witnesses deposed on the lines of prosecution story during their chief examination. They proved the relevant documents i.e sketches of katta and cartridges allegedly recovered from the possession of accused persons as Ex.PW1/A1 to Ex.PW1/A3, sketch of knife as Ex.PW1/A4 and their relevant seizure memos as Ex.PW1/B1 to Ex.PW1/B4.
They deposed that one black colour bag was also recovered from the possession of accused Rajesh @ Dil Dil, which was seized vide memo Ex.PW1/C and two motorcycles bearing numbers DL7SAK5116 and DL4SBD3239 were also seized vide memos Ex.PW1/D1 and Ex.PW1/D2.
State V/s Rajesh Dil Dil ("Acquitted") Page 7 of 26 FIR No. 580/06; U/s 399/402/186/353/332/34 IPC & 25/27 Arms Act ; PS Mangol Puri D.O.D.: 26.09.2015 They further deposed that present accused namely Rajesh @ Dil Dil and accused Raj Kumar @ Anil, Anil and Raju @ Raja (since acquitted) were arrested and their personal search were conducted vide memos Ex.PW1/F1 to Ex.PW1/F8 respectively and said accused had also made disclosure statements Ex.PW1/G1 to Ex.PW1/G4 respectively. They also identified the recovered arms and ammunition as Ex. P1 to Ex. P4 and motorcycles as Ex. P6 and P7 during trial. All the aforesaid five witnesses have been cross examined at length on behalf of accused persons.
11. PW4 HC Harkesh: He is the formal witness who had deposited the relevant pullandas in FSL Rohini vide RC no. 248/21/06. Nothing material has come on record during cross examination of this witness.
12. PW5 HC Surender Kumar: He is the MHC(M) of PS Mangol Puri. He deposed about the factum regarding deposit of case property i.e. five sealed pullandas out of which four pullandas sealed with the seal of RKM and one pullanda sealed with the the seal of JS besides one black colour bag and two motorcycle numbers DL7SAK 5116 and DL4SBD3239 alongwith FSL form in malkhana, vide entry made by him at Sr. No. 6106 in register no.19. He proved copy of said entry as Ex.PW5/A. He deposed that aforesaid three sealed pullandas sealed with the seal of RKM and form FSL were sent to FSL Rohini through HC Harkesh vide RC no. 248/21/06 in Malkhana on 28.08.2006. He proved State V/s Rajesh Dil Dil ("Acquitted") Page 8 of 26 FIR No. 580/06; U/s 399/402/186/353/332/34 IPC & 25/27 Arms Act ; PS Mangol Puri D.O.D.: 26.09.2015 copy of relevant endorsement as Ex.PW5/B and copy of said RC as Ex.PW5/C. During his cross examination, he deposed that IO had recorded his statement only on 28.08.2006 but not on 15.08.2006. He admitted that there was no signature of IO in column no. 3 of entry no. 6106 Ex.PW5/A and there is no signature of HC Harkesh in column no. 8 of the same entry.
13. PW6 Inspector Joginder Singh: He is the IO of this case. He deposed on the lines of prosecution story by testifying that after he collected copy of FIR Ex.PX and original rukka through Duty Officer, he alongwith Ct. Dharambir Singh went to the spot where SI R.K. Maan handed over all the sealed pullandas, seizure memos, sketches of recovered case property and custody of accused persons to him. After interrogating present accused Rajesh @ Dil Dil and coaccused persons namely Raj Kumar @ Anil, Anil and Raju @ Raja (since acquitted), were arrested and their personal search were conducted by him vide memos Ex.PW1/F1 to Ex.PW1/F8. He had also recorded disclosure statements Ex.PW1/G1 to Ex.PW1/G4 of the accused persons and deposited the case property in the Malkhana.
He further deposed that on 28.08.2006, HC Harkesh had deposited three sealed pullandas alongwith FSL Form at FSL Rohini. Thereafter, Ct. Nehru Lal had collected FSL result Ex.PY and subsequent thereto, he obtained sanction U/s 39 Arms Act from concerned DCP. He State V/s Rajesh Dil Dil ("Acquitted") Page 9 of 26 FIR No. 580/06; U/s 399/402/186/353/332/34 IPC & 25/27 Arms Act ; PS Mangol Puri D.O.D.: 26.09.2015 also obtained complaint U/s 195 Cr.P.C. and prepared the charge sheet.
In his cross examination, he admitted that the place of occurrence was a public thorough fare. He deposed that he recorded the statements of some of the police witnesses at PS and some of the police witnesses at the spot. He admitted that he did not collect ownership documents of seized motorcycles and did not examine respective owners of said two motorcycles. However, he denied the relevant suggestions put to him on behalf of accused persons.
14. PW8 Sh. Vikram Porwal: This witness was posted as ACP Sub Division Rohini on 17.03.2008 and had prepared complaint U/s 195 Cr.P.C. for prosecuting the accused persons. He proved the copy of said complaint as Ex.PW8/A. In his cross examination, he admitted that the date of commission of offence in this case was 15.08.2006 and the complaint U/s 195 Cr.P.C. was prepared on 17.03.2008. He denied the suggestion that he prepared the said complaint in routine manner.
15. PW9 HC Sunil Kumar: He is the formal witness in whose presence accused Vinay (since acquitted) was formally arrested by SI Mahender Singh on 18.12.2006. He proved seizure memo and disclosure statement of said accused as Ex.PW9/A and Ex.PW9/B respectively.
In his cross examination, he admitted that IO did not move any application for conducting judicial TIP of accused Vinay (since acquitted) in his presence despite the fact that accused Vinay was arrested after about State V/s Rajesh Dil Dil ("Acquitted") Page 10 of 26 FIR No. 580/06; U/s 399/402/186/353/332/34 IPC & 25/27 Arms Act ; PS Mangol Puri D.O.D.: 26.09.2015 four months from the date of occurrence of the present case.
16. PW10 HC Niranjan Singh: This witness was posted as MHC(M) at PS Mangol Puri on 16.05.2007 when three sealed pullandas alongwith FSL results were deposited by Ct. Nehru Lal with him. He deposed that FSL result was handed over by him to SI Ajay and relevant endorsement was made by him in this regard against entry at serial no. 6101 already exhibited as Ex. PW5/A. This witness has not been cross examined by accused persons despite grant of opportunity.
17. PW12 Ct. Nehru Lal: He is formal witness who had collected three sealed pullandas alongwith FSL report from FSL, Rohini and deposited the same with MHC(M) on 16.05.2007.
In his cross examination, he could not tell the date when his statement was recorded by the IO.
18. PW13 Retd. SI Mahender Singh: This witness remained IO of this case from 08.12.2006 onwards till 24.01.2007. He deposed that on 18.12.2006, accused Vinay (since acquitted) was arrested by Inspector Mahesh Kumar in case FIR No. 955/06 with PS Mangol Puri. Accordingly, he interrogated the said accused in the present case and arrested him vide memo Ex. PW9/A and also recorded his disclosure statement Ex.PW9/B. He further deposed that on 24.01.2007, accused Sandeep @ Kalia (since acquitted) was arrested in some NDPS case registered with PS State V/s Rajesh Dil Dil ("Acquitted") Page 11 of 26 FIR No. 580/06; U/s 399/402/186/353/332/34 IPC & 25/27 Arms Act ; PS Mangol Puri D.O.D.: 26.09.2015 Mangol Puri. Accordingly, he interrogated the said accused in the present case and arrested him vide memo Ex.PW11/A and also recorded his disclosure statement Ex.PW11/B. In his cross examination, he admitted that disclosure statement of accused Vinay (since acquitted) recorded in case FIR no. 955/06 is not in judicial file of the present case. He also admitted that disclosure statement of accused Sandeep @ Kala (since acquitted) recorded in NDPS case is also not available in the judicial file.
19. PW14 HC Yogesh Kumar: This witness had arrested accused Anil (since acquitted) on 15.07.2014 U/s 41.1(c) Cr.P.C. as accused Anil was previously declared Proclaimed Offender in this case. He proved arrest memo of the said accused as Ex.PW14/B, relevant DD no. 7 as Ex.PW14/C and kalandara U/s 41.1(c) Cr.P.C. as Ex.PW14/D. In his cross examination, he denied the suggestion that he had not arrested the accused Anil or that he had prepared the relevant memos while sitting in the PS.
19. PW15 Sh. B.K. Singh: This witness had granted sanction U/s 39 of Arms Act to prosecute accused Rajesh @ Dil Dil for offence punishable U/s 25 Arms Act. He proved the said sanction as Ex.PW15/A. In his cross examination, he deposed that recovered arm and ammunitions were not produced before him at the time of according sanction Ex.PW15/A. However, he had gone through all the documents placed before him before granting the said sanction. State V/s Rajesh Dil Dil ("Acquitted") Page 12 of 26 FIR No. 580/06; U/s 399/402/186/353/332/34 IPC & 25/27 Arms Act ; PS Mangol Puri D.O.D.: 26.09.2015 ARGUMENTS ADVANCED AND CASE LAW CITED
20. While opening the arguments, Ld. Addl. PP submitted that four police officials namely Ct. Dharambir Singh (PW1), Ct. Ram Phal (PW2), Ct. Rakesh (PW3), Inspector R.K. Maan (PW7) and ASI Sushil Kumar (PW11) of P.S. Mangol Puri, all of whom were public servants within the meaning of Section 21 IPC, were on official duty on the given date, time and place on 15.08.2006 when the incident in question had taken place. He argued that out of those six police officials, five of them have been produced during trial i.e. PW1 to PW3, PW7 and PW11 and all five of them have supported the case of prosecution by deposing on identical lines and accused persons could not impeach their testimonies during cross examination.
21. He further argued that the accused persons had used criminal force against those police officials and also prevented them in the discharge of their official duties. The accused also attempted to kill the police official by firing at the police party, as per the submission made by Ld. Additional PP for State. Therefore, he contended that prosecution has been able to establish the charges levelled against the accused in the present case.
22. On the other hand, Ld. defence counsel argued that prosecution has failed to prove its case against accused Rajesh @ Dildil beyond doubt. In support of said argument, he referred to the relevant State V/s Rajesh Dil Dil ("Acquitted") Page 13 of 26 FIR No. 580/06; U/s 399/402/186/353/332/34 IPC & 25/27 Arms Act ; PS Mangol Puri D.O.D.: 26.09.2015 portions of the testimonies of prosecution witnesses, more particularly those of PW1 to PW3, PW7 and PW11 in order to bring home the point that there are material contradictions appearing on record, which create reasonable doubt in the case of prosecution.
23. 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.
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.
24. 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
25. After taking into consideration the material available on record and the evidence, oral as well as documentary, produced by prosecution during trial, Court finds that there is no iota of doubt that PW1 State V/s Rajesh Dil Dil ("Acquitted") Page 14 of 26 FIR No. 580/06; U/s 399/402/186/353/332/34 IPC & 25/27 Arms Act ; PS Mangol Puri D.O.D.: 26.09.2015 to PW3, PW7 and PW11 besides PW Ct. Baljeet Singh were public servants in terms of Section 21 IPC.
26. However, the complaint U/s 195 Cr.P.C. Ex.PW8/A is not a valid complaint as stipulated by Section 195(1)(a)(i) Cr.P.C. for the simple reason that said complaint was never filed before the Court of Law after the alleged incident till the filing of chargesheet. It appears that said complaint Ex.PW8/A had been simply tagged alongwith the chargesheet which is not proper and in accordance with law. While taking this view, I am also fortified by the judgment of our own High Court in the judgment reported at '1984 (7) DRJ 248'.
27. There is another reason due to which said complaint Ex.PW8/A is not considered to be valid complaint in the eyes of law. The bare perusal of said complaint itself would reveal that there is no prayer made therein either to prosecute the accused persons in respect of offence U/s 186 IPC or to initiate appropriate proceedings against them for the said offence. Thus, the said complaint does not meet the requirement of law as envisaged by Section 195(1)(a)(i) Cr.P.C.
28. Moreover, the date of alleged incident is 15.08.06 whereas the complaint Ex.PW8/A is dated 17.03.2008. Same shows that the said complaint had been prepared after the expiry of period of more than 18 months from the date of alleged incident. The offence U/s 186 IPC is punishable with imprisonment up to three months. That being so, the period of limitation for filing complaint U/s 195 Cr.P.C. is one year as State V/s Rajesh Dil Dil ("Acquitted") Page 15 of 26 FIR No. 580/06; U/s 399/402/186/353/332/34 IPC & 25/27 Arms Act ; PS Mangol Puri D.O.D.: 26.09.2015 provided in Section 468 Cr.PC. It is an admitted fact that no application seeking condonation of delay had been moved by prosecution either alongwith the complaint Ex. PW8/A or even alongwith the charge sheet. Rather, PW8 ACP Vikram Porwal (now Additional DCP) has admitted during cross examination that complaint U/s 195 Cr.PC was prepared by him on 17.03.2008 and date of occurrence was 15.08.06 but he did not offer any explanation for the same.
29. In the judgment reported at '1996 III AD (Delhi) 96', it has been held by our own High Court that cognizance in respect of offence U/s 186 IPC can be taken only on written complaint U/s 195 Cr.P.C. The requirement of law is that there has to be properly drafted complaint within the meaning of Section 195(1)(a)(i) Cr.P.C. and same has been validly instituted before the Court of Law, which is not the case herein.
30. For the reasons mentioned hereinabove, Court while agreeing with the submissions made by Ld. defence counsel, is of the view that offence U/s 186/34 IPC has not been proved against accused Rajesh @ Dildil.
31. Now, I shall discuss about the offences punishable under Section 332/353/34 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;
State V/s Rajesh Dil Dil ("Acquitted") Page 16 of 26
FIR No. 580/06; U/s 399/402/186/353/332/34 IPC & 25/27 Arms Act ; PS Mangol Puri D.O.D.: 26.09.2015
b). Said public servants were performing their official duty at the time of incident;
c) The accused caused hurt 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; and
d). 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.
32. Likewise, in order to establish the charge in respect of offence U/s 307/34 IPC, the prosecution was required to establish that present accused Rajesh @ Dil Dil had committed any act with such intention or knowledge and under such circumstances that if by his said act, he would have caused death of any person, he would have been guilty of murder.
33. Now adverting back to the facts of the present case. There are various material contradictions in the testimonies of PW1 to PW3, PW7 and PW11. Some of those contradictions may be summarized as under:
(i). PW1 Ct. Dharambir claimed to have signed relevant documents including sketch of country made pistol and cartridge allegedly recovered from accused Anil (since acquitted), its seizure memo and State V/s Rajesh Dil Dil ("Acquitted") Page 17 of 26 FIR No. 580/06; U/s 399/402/186/353/332/34 IPC & 25/27 Arms Act ; PS Mangol Puri D.O.D.: 26.09.2015 disclosure statement made by said accused but when he was confronted with those memos, he admitted that same were not bearing his signatures.
(ii). PW2 Ct. Ram Phal and PW3 Ct. Rakesh testified that they were carrying official arms on that day but admitted that the said fact was not mentioned in their respective statements U/s 161 Cr.PC. PW2 also could not disclose as to whether any entry was made while getting the official weapon issued from the Malkhana. Rather, he tried to justify his testimony by claiming that sometimes due to emergency, official weapon is issued to them without making any entry in the relevant register, which is contrary to the relevant rule framed in this regard.
(iii). PW11 ASI Sushil Kumar (the then HC) was admittedly not posted in PP SG Hospital of PS Mangol Puri but still, he claimed himself to be member of the raiding party despite the fact that remaining members of raiding party were claimed to be posted in PP SGM Hospital on that day. Although, PW11 tried to explain that he had visited PP for some work but neither he disclosed the nature of said work nor any document has been placed on record showing his departure from PS to Police Post. Moreover, the said fact was also not found recorded in his statement U/s 161 Cr.P.C. Ex.PW11/DA when he was confronted with the same during cross examination. Same creates reasonable doubt that the said witness was member of the raiding party on that day as claimed in the charge sheet.
(iv). PW11 ASI Sushil Kumar claimed that keys of both the seized motorcycles, were also seized by the IO and the said fact was also State V/s Rajesh Dil Dil ("Acquitted") Page 18 of 26 FIR No. 580/06; U/s 399/402/186/353/332/34 IPC & 25/27 Arms Act ; PS Mangol Puri D.O.D.: 26.09.2015 mentioned in the relevant seizure memos Ex.PW1/D1 and Ex.PW1/D2 but when he was confronted with said two memos, he admitted that the said fact was not mentioned therein; and
(v). Although, it is claimed that two motorcycles were seized which were allegedly used by the accused persons but no effort whatsoever is shown to have been made to enquire about the owners of said two motorcycles or to collect the relevant ownership documents thereof. Infact, IO namely PW6 Inspector Joginder Singh has admitted the same during his cross examination but offered no explanation for not doing so.
34. As is quite evident from the above discussion, four of the accused including accused Rajesh @ Dil Dil were claimed to have been apprehended by the police officials from near the office of NDPL at about 2.00 pm. It has come on record during testimonies of prosecution witnesses that there was one park, office of NDPL and Railway Phatak situated just near the place of occurrence. Not only this, it has also come on record that several vehicles were found stationed at the said railway phatak which was closed at that time but no effort was made either to join any employee from the office of NDPL or any occupants of those vehicles either during recovery proceedings or even thereafter. PW11 also admitted that there were shops/offices situated at a distance of about 200 yards from the place of occurrence but no sincere efforts is shown to have been made for joining any of the shop keepers/owners of the offices during the proceedings. PW11 although claimed that IO had requested public persons to join the State V/s Rajesh Dil Dil ("Acquitted") Page 19 of 26 FIR No. 580/06; U/s 399/402/186/353/332/34 IPC & 25/27 Arms Act ; PS Mangol Puri D.O.D.: 26.09.2015 proceedings but none agreed and they also did not disclose their names and addresses. Same is nothing but a mechanical excuse given by him for not joining public person during the proceedings which is apparent from the fact that he did not prepare any memo regarding refusal of public persons to join the proceedings and he also did not serve any written notice upon them. In this back drop, Court finds merit in the argument of Ld. defence counsel that prosecution case cannot be said to be free from doubt. At this juncture, it would be pertinent to refer to some case laws.
35. In a case law reported as Anoop Joshi v/s State, 1992 (2) C.C. Cases 314 (HC), Hon'ble High Court of Delhi has observed as under:
"18. It is repeatedly laid down by this court that in such cases it should be shown by the police that sincere efforts have been made to join independent witnesses. In the present case, it is evident that no such sincere efforts have been made, particularly when we find that shops were open and one or two shopkeepers could have been persuaded to join the raiding party to witness the recovery being made from the appellant. In case any of the shopkeepers had declined to join the raiding party, the police could have later on taken legal action against such shopkeepers because they could not have escaped the rigours of law while declining to perform their legal duty to assist the police in investigation as a citizen, which is an offence under the IPC."
36. In a case law reported as Roop Chand v/s The State of Haryana, 1999(1) C.L.R 69, Hon'ble Punjab & Haryana High Court held as under:
3. I have heard the learned counsel for the parties and gone through the evidence with their help. The recovery State V/s Rajesh Dil Dil ("Acquitted") Page 20 of 26 FIR No. 580/06; U/s 399/402/186/353/332/34 IPC & 25/27 Arms Act ; PS Mangol Puri D.O.D.: 26.09.2015 of illicit liquor was effected from the possession of the petitioner during noon time and it is in the evidence of the petitioner witnesses that some witnesses from the public were available and they were asked to join the investigation. The explanation furnished by the prosecution is that the independent witnesses were asked to join the investigation but they refused to do so on the ground that their joining will result into enmity between them and the petitioner.
4. It is well settled principle of the law that the Investigating Agency should join independent witnesses at the time of recovery of contraband articles, if they are available and their failure to do so in such a situation casts a shadow of doubt on the prosecution case. In the present case also admittedly the independent witnesses were available at the time of recovery but they refused to associate themselves in the investigation. This explanation does not inspire confidence because the police officials who are the only witnesses examined in the case have not given the name and addresses of the persons contacted to join. It is a very common excuse that the witnesses from the public refused to join the investigation. A police officer conducting investigation of a crime is entitled to ask anybody to join the investigation and on refusal by a person from the public the investigating Officer can take action against such a person under the law. Had it been a fact that the witnesses from the public had refused to join the investigation, the Investigating Officer must have proceeded against them under the relevant provisions of law. The failure to do so by the police officer is suggestive of the fact that the explanation for nonjoining the witnesses from the public is an after thought and is not worthy of credence. All these facts taken together make the prosecution case highly doubtful."
37. In case law reported as Sadhu Singh v/s State of Punjab, State V/s Rajesh Dil Dil ("Acquitted") Page 21 of 26 FIR No. 580/06; U/s 399/402/186/353/332/34 IPC & 25/27 Arms Act ; PS Mangol Puri D.O.D.: 26.09.2015 1997(3) Crimes 55, Hon'ble Punjab & Haryana High Court observed as under: " xxxxx
5. In a criminal trial, it is for the prosecution to establish its case beyond all reasonable doubts. It is for the prosecution to travel the entire distance from may have to must have. If the prosecution appears to be improbable or lacks credibility the benefit of doubt necessarily has to go to the accused.
In the present case, the State examined two witnesses namely, Harbans Singh ASI who appeared as PW1 and Kartar Singh PW2. Both the witnesses supported the prosecution version in terms of the recovery of opium from the person of the petitioner, but there was no public witness who had joined. It is not necessary in such recoveries that public witnesses must be joined, but attempt must be made to join the public witnesses. There can be cases when public witnesses are reluctant to join or are not available. All the same, the prosecution must show a genuine attempt having been made to join a public witness or that they were not available. A stereotype statement of nonavailability will not be sufficient particularly when at the relevant time, it was not difficult to procure the service of public witness. This reflects adversely on the prosecution version.
xxxxxxx"
38. As such it could be said that IO did not make sincere efforts to join public witnesses before starting initial investigation of the present case and this failure on the part of the IO in view of above said case laws creates a very serious doubt in the prosecution version.
39. The case property and accused remained in control of police officials till the case property was deposited in the malkhana. Hence State V/s Rajesh Dil Dil ("Acquitted") Page 22 of 26 FIR No. 580/06; U/s 399/402/186/353/332/34 IPC & 25/27 Arms Act ; PS Mangol Puri D.O.D.: 26.09.2015 tampering with the case property cannot be ruled out as the seal remained all along with the police officials. It has been admitted by police witnesses that no handing over or taking over memo in respect of seal was prepared.
40. There is another reason which create reasonable doubt in the case of prosecution. It is nowhere deposed by IO or by any other prosecution witness FSL Form was filled up at the spot. As per the case of prosecution, FSL form had been filled up at the spot. However, MHC(M) concerned examined during trial also did not whisper that any FSL form was deposited in Malkhana or that same was handed over by him to HC Harkesh who had deposited the pullandas in FSL Rohini.
41. In the matter titled as State of Himachal Pradesh v/s Dharam Dass reported at 1992(1) CLR, it has been ruled that the prosecution has to prove the guilt against beyond all reasonable doubt and that too by leading independent, reliable and unimpeachable evidence. There is no controversy to the proposition that the accused is entitled to the benefit of every doubt occurring in the prosecution case.
42. In another case titled as Thakorbhi Viribhai Vasava & others V/s The State of Gujarat reported at Crime Vol (1) 1987/37 delivered by Hon'ble Gujarat High Court (D.B), it has been ruled down that in criminal trials even a slightest doubt raised in favour of accused ordinarily entitles the accused to get acquittal.
43. There is another reason which persuades the Court to grant benefit of doubt to this accused. The prosecution story as propounded in State V/s Rajesh Dil Dil ("Acquitted") Page 23 of 26 FIR No. 580/06; U/s 399/402/186/353/332/34 IPC & 25/27 Arms Act ; PS Mangol Puri D.O.D.: 26.09.2015 the charge sheet recites that the accused persons were having conversation amongst themselves in such a loud voice that it could have been heard by SI R.K. Maan (PW7) and HC Sushil (PW11) while they were observing them from quite some distance. It does not stand to reason as to why the accused persons would converse with each other in such high volume when they were preparing to commit dacoity and in such a manner so that their conversation may be clearly and easily heard by someone hiding or concealing in nearby place. Rather, the natural conduct would be that the offenders who are conspiring to commit dacoity, would firstly ensure their safety by giving a look all around the place where they have assembled before talking about secret conversation.
44. In some what similar facts & circumstances in a case U/s 399/402 IPC, it has been held by Hon'ble Allahabad High Court in the judgment reported at 2003 CR.L.J. 1321 that it is not digestible that the appellants and their associates would have been talking at such pitch of voice as to the clearly audible by the police party concealing nearby.
45. In another matter reported at 2005 Cr.L.J. 185, the accused/appellants were charged with offences U/s 399/402 IPC and the facts of the case were almost similar to the facts of the present case as it was also claimed in the said case that accused/appellants were apprehended by police officials after giving them a chase. In this backdrop, it has been held by Hon'ble Allahabad High Court that it does not appear to be natural that no injury could take place on either side and four of the miscreants State V/s Rajesh Dil Dil ("Acquitted") Page 24 of 26 FIR No. 580/06; U/s 399/402/186/353/332/34 IPC & 25/27 Arms Act ; PS Mangol Puri D.O.D.: 26.09.2015 were arrested, fire arms and cartridges were recovered from their possession.
46. It has also not been explained by the prosecution witnesses as to why none of them made any effort to take photographs of the place where accused persons were sitting and were allegedly conspiring to commit dacoity. Not only this, they also did not make any effort to videograph the said place before actually conducting the raid. It has not been explained by prosecution witnesses as to what prevented them to do so when it could have been done by them.
47. Moreover, the prosecution witnesses examined during trial failed to prove that there was any overt act on the part of any of the accused persons which may lead to the inference that they had any intention to commit dacoity or they were planning to commit dacoity over there.
48. Moreover, the prosecution has failed to lead any cogent evidence which may even suggest that there was any intention on the part of accused persons to commit dacoity. In the matter reported at 1979 SCC (Cri.) 502, Hon'ble Apex Court has observed that the mere fact that accused persons were found present at particular place, does not by itself prove that they had assembled for the purpose of committing dacoity or for making preparation to accomplish that object.
49. In another matter reported at 1978 Cr.L.J. 877, it has been held by Hon'ble Patna High Court that no conviction U/s 399 or 402 IPC can be recorded simply on the basis that a certain number of persons, some State V/s Rajesh Dil Dil ("Acquitted") Page 25 of 26 FIR No. 580/06; U/s 399/402/186/353/332/34 IPC & 25/27 Arms Act ; PS Mangol Puri D.O.D.: 26.09.2015 being armed, are apprehended at the platform of a railway station. The prosecution has to establish that they had assembled there for committing dacoity or were preparing to commit dacoity. Similar view has been taken by our own High Court in the judgment reported at 2000 Cr.L.J. 2083.
50. In the light of aforesaid discussion, Court is of the considered view that the prosecution has failed to establish the charges levelled against accused Rajesh @ Dil Dil beyond shadow of doubt. Consequently, accused Rajesh @ Dil Dil is acquitted of the charges levelled against him by giving him benefit of doubt. However, case property be confiscated to the State. File be consigned to Record Room after compliance of Section 437A Cr.P.C.
Announced in open Court today
On 26.09.2015 (Vidya Prakash)
Additional Sessions Judge04 (North)
Rohini Courts, Delhi
State V/s Rajesh Dil Dil ("Acquitted") Page 26 of 26