Delhi District Court
State vs Surender @ Kala on 13 August, 2012
IN THE COURT OF SH. VIRENDER KUMAR GOYAL
ADDL SESSIONS JUDGE: FAST TRACK COURT
ROHINI:DELHI
SC No. 140/01/10
Unique Identification No. 02404R0002572009
State
Versus
1. Surender @ Kala
Son of Sh. Krishan Kumar
R/o Village Kurar,
PS Murthal,
Sonepat (Haryana) .... Since expired
2) Ashok Kumar @ Sanni
Son of Sh. Chand Singh
R/o VillageGarhi Sampla,
PS Sampla, Rohtak (Haryana)
FIR No. 327/03
PS - Narela
U/s. 186/353/307/34 of IPC
& 25/27/54/59 Arms Act
Date of institution of the case: 31/10/2003
Arguments heard on: 08/08/2012
Date of reservation of order: 08/08/2012
Date of Decision: 13/08/2012
JUDGMENT
This case was registered, on rukka given by SI Ranbir Singh on 01/09/2003, U/s. 186/353/307/34 of IPC and U/s. 25/27 of Arms Act against the accused persons.
During investigation, copies of DDs were collected. Rough site plan SC No. 140/1/10 1/18 of the place of occurrence was prepared. Sketches of country made katta and cartridges were prepared. Seizure memo of the same was prepared. One motorcycle make Boxer of red colour alongwith helmet was seized in this case. Accused Surender @ Kala made disclosure statement. Accused Ashok Kumar also made disclosure statement.
Both accused Surender @ Kala and Ashok Kumar were arrested in this case. Their personal searches were conducted.
Sanction U/s. 39 of Arms Act was also obtained and was placed on record. Exhibits were sent to FSL. FSL report was obtained. Complaint U/s. 195 of Cr.P.C. was also filed.
On completion of investigation, chargesheet was filed against both the accused U/s. 186/353/307/34 of IPC and U/s. 25/27 of Arms Act.
Case was committed to the Court of Session on 30/01/2004 and was received on 10/02/2004.
Charge U/s. 186/34 of IPC, U/s. 353/34 of IPC and U/s. 307/34 of IPC and another charge U/s. 25/27 of Arms Act were framed against both the accused persons, to which, they pleaded not guilty and claimed trial.
To prove its case, prosecution has examined PW1 to PW12 in all. During the proceedings, accused Surender @ Kala expired. Hence, on completion of the evidence of the prosecution, statement of accused Ashok Kumar was recorded U/s. 313 Cr.P.C.. Accused has denied the case of the prosecution and has stated that Surender was proclaimed offender in some cases and police party raided his house and apprehended him. He is his aunt's son. Accused has further stated that he was also present at the house of his Bua (aunt) and police arrested him falsely and implicated in this case. Recovery has been planted upon him.
SC No. 140/1/10 2/18
I have heard learned APP for the State, learned counsel for accused and have gone through the material placed on record with evidence adduced.
According to rukka Ex. PW2/J, on 01/09/2003, at about 4.00 p.m., secret informer informed SI Ranbir Singh in the Office of Special Team, Crime Branch Prashant Vihar that two bed elements from Anil Bhagte gang, who are wanted in several cases of robbery and dacoity in Haryana, will come on Boxer red colour motorcycle, without number plate, at about 7.00 p.m. in Narela Sub City to rob cash from Indian Oil Petrol Pump from Singhu border, Haryana and they will also have illegal arms and on raid, they can be apprehended.
It was further mentioned in the rukka that SI Ranbir Singh prepared a raiding party with HC Azad Singh, HC Budh Prakash, HC Satyawan, Constable Krishan Kumar, Constable Rajender Singh, Constable Ashok Kumar and another Constable Rajender Singh and disclosed them about the secret information. They also obtained arms and ammunition. SI Ranbir Singh was in uniform and rest of the staff was in civil dress.
It was further mentioned in the rukka that they took government vehicle No. DL6CJ0517 with driver/Constable Narender Singh alongwith secret informer and left for Narela Sub City. At about 6.00 p.m., they made nakabandi inside 30 meters of GT Karnal road going towards Narela Sub City, which was further going to Indian Oil Petrol Pump. There also, the staff was briefed. 34 passersby were asked to join the raiding party after disclosing the secret information but none joined the raiding party and left without disclosing their names and addresses.
It was further mentioned in the rukka that without wasting further time, SI Ranbir Singh put the government vehicle on the said road with the help SC No. 140/1/10 3/18 of raiding party and made nakabandi and started checking the motorcycles coming from G. T. Road to Narela Sub City. It was further mentioned that at about 7.50 p.m., one without number plate motorcycle was seen coming. Two persons were riding the same. Driver of the motorcycle was wearing black colour helmet and the pillion rider was without helmet. When they came nearby nakabandi, secret informer informed SI Ranbir Singh and pointed out those two persons as the bad elements, on which, SI Ranbir Singh gave signal to stop the motorcycle. On this, the driver of the motorcycle slow down the same and after breaking the nakabandi attempted to run away, on which, SI Ranbir Singh gave warning to them in a loud voice and asked them to stop. Meanwhile, pillion rider took out a weapon from left dub of his pant and fired on the raiding party.
It was further mentioned in the rukka that SI Ranbir Singh asked raiding party to retreat. Meanwhile, the motorcycle struck against the pavement, lost balance and fell down. On seeing the raiding party, both of them attempted to fled away and at that time, driver of the motorcycle made a fire aiming at HC Azad Singh, which resulted into misfire. At that time, HC Azad Singh without caring for his life, overpowered the motorcycle driver and Constable Ashok Kumar snatched desi katta from his right hand. Similarly, Constable Krishan Kumar overpowered the pillion rider without caring for his life and Constable Rajender Singh snatched katta from his hands.
It was further mentioned in the rukka that police party came to know the name of the driver of the motorcycle as Ashok Kumar and pillion rider as Surender @ Kala.
It was further mentioned in the rukka that the katta, which was recovered from accused Ashok, was checked. It was found containing one SC No. 140/1/10 4/18 misfired cartridge. Sketch of the same with katta was prepared. This katta was measured. It was of .315 bore. Length of the barrel was 14.1 c.m., length of the body was 10.3 c.m., length of butt was 8.5 c.m. and total length of the same was 25 c.m. Length of the misfired cartridge was 7.6 c.m. The misfired cartridge was of KF 8mm 99. Both misfired cartridge and katta were sealed in a Hollandaise with the seal of "RS".
It was further mentioned in the rukka that katta, which was snatched from accused Surender @ Kala, was also checked. It was found containing one empty cartridges of .315 bore and during the search of accused Surender @ Kala , one cartridge was recovered from his right side of pant pocket without percussion cap. The katta was also checked and sketch of cartridge and katta were prepared. Katta was also measured. Length of barrel was 13.9 c.m., length of the body was 10 c.m., length of the butt was 9 c.m. and total length was 25.5 c.m. Length of the empty cartridge was 5 c.m. and length of the cartridge was 7.6 c.m. Desi katta, empty cartridge and cartridge were sealed in a Hollandaise with the seal of "RS". Serial No. 1 was given to the Hollandaise prepared in respect of accused Ashok and serial No. 2 was given to the pullanda in respect of accused Surender @ Kala. FSL form was filled up. It was sealed with the seal of "RS". Both the pullandas were seized. Seal after use was handed over to HC Budh Prakash and a case was got registered against both the accused U/s. 186/353/307/34 of IPC and U/s. 25/27 of Arms Act.
To prove the case of the prosecution, from the raiding party, PW2 HC Azad Singh, PW5 HC ASI Budh Prakash, PW7 HC Satyawan and PW9 HC Rajender Kumar have been examined. PW11 Inspector Ranbir Singh has been examined as IO and PW10 Inspector Ravinder Ahlawat has been examined as second IO.
SC No. 140/1/10 5/18
More or less, all these witnesses have deposed the same facts as of rukka, but have contradicted on certain aspects.
According to the case of the prosecution, as deposed by the witnesses, while the motorcycle, on which, both the accused were riding, was in motion, the pillion rider took out a desi katta and fired on the police party, whereas PW2 HC Azad Singh has stated that they gave signal to stop the motorcycle, but it was not stopped, so, they chased the motorcycle. Meanwhile, the motorcycle struck against the pavement of the road and fell down. The pillion rider of the motorcycle took out a pistol and fired one round towards them,but he escaped. So, it is doubtful whether pillion rider made fire towards the police party, while he was sitting on the motorcycle and the motorcycle was running or he made fire on the police party, when the motorcycle fell down after strucking with the pavement, hence this contradiction is material one.
According to PW2 HC Azad Singh . The katta recovered from accused Ashok was found loaded. It was having one live cartridge and the same has been identified by him as Ex. P1 and Ex. P2, whereas according to the case of the prosecution, one cartridge was recovered from the desi katta of accused Ashok, which was misfired.
In the cross examination, PW2 HC Azad Singh has stated that the place, where nakabandi was made, was a double road, but according to the site plan, it is single road and position of the gypsy, where it was used as nakabandi in a zig zag manner, has not been shown. According to site plan Ex. PW10/A, point "Y" has been shown as the place, where the motorcycle was found lying with the footpath, but is shown as service road of the main road, which was going to Narela Sub City from G.T. Karnal Road and none of the witness has SC No. 140/1/10 6/18 deposed about the Service Road, rather witnesses have contradicted each other on this aspect.
In the cross examination, PW2 HC Azad Singh has stated that the accused, who was sitting as pillion rider, had fired on the police party, while the motorcycle was in motion after crossing the nakabandi. So, it is difficult to believe whether he has deposed truly in the examination in chief or in the cross examination, so, PW2 HC Azad Singh cannot be relied upon.
According to cross examination of PW2 HC Azad Singh, they were having arms and ammunition, but is not explained as to why they did not fire on the accused persons in retaliation, which shows that all the story of apprehension of the accused persons and firing, as alleged, is fabricated one.
According to PW10 Inspector Ravinder Ahlawat, he reached at the spot at about 9.00 p.m., as per information received from the duty officer and had recorded statements of all the witnesses of police party, whereas PW2 HC Azad Singh, after seeing the statement recorded U/s. 161 of Cr.P.C. of Constable Narender and of himself, has stated that both are not in the handwriting of SI Ravinder Ahlawat. PW2 HC Azad Singh has stated in the cross examination that statements were recorded by 23 different persons. ASI Budh Prakash also recorded the statements of witnesses on the dictation of the IO.
PW2 HC Azad Singh has stated that accused persons were arrested at about 10/10.15 p.m., whereas according to their arrest memos Ex. PW2/E and Ex. PW2/F, both the accused were arrested at about 11 p.m., so, PW2 HC Azad Singh is not inspiring confidence about the incident as per the case of the prosecution.
According to cross examination of PW2 HC Azad Singh, serial No. SC No. 140/1/10 7/18 1 was given to the katta recovered from accused Ashok and serial No. 2 was given to the katta recovered from accused Surender @ Kala, but during examination of all the witnesses, they have not been able to point out serial number written on the pullanda, when the case property was produced before them at the time of identification,so to this extent, all these witnesses have failed to corroborate, so identity of case property is doubtful, hence, they cannot be relied upon.
PW2 HC Azad Singh has stated in the cross examination that there was no central verge on the road, whereas according to PW11 Inspector Ranbir Singh, the place, where they had taken position, was a double road. The motorcycle had crossed the barricade and struck against the central verge and fell down. Both these facts are contrary to the site plan Ex. PW10/A, wherein the motorcycle was found lying with the footpath and no central verge has been shown in the site plan.
According to PW2 HC Azad Singh, who conducted search of accused Ashok, in the formal search, he recovered one katta from the possession of accused Ashok and nothing was recovered in the formal search of accused, whereas according to the case of the prosecution, after felling down from the motorcycle, accused Ashok took out a katta and made fire on the police party, which was misfired and the katta was snatched from his hands by the police officials, so, the examination in chief and cross examination of PW2 HC Azad Singh is itself contradictory. According to PW2 HC Azad Singh, Constable Rajender had snatched the katta from the driver of the motorcycle, which was of accused Ashok. So, the witnesses cannot be relied upon in view of these contradictions.
All the witnesses have stated that secret informer had given the SC No. 140/1/10 8/18 information about two desperate criminals, but had not disclosed their names, whereas PW2 HC Azad Singh has stated in the cross examination that secret informer had already disclosed the names of the accused persons, while giving the secret information, which itself fortify the defence of the accused persons that they were lifted from their houses and were brought to PS. Motorcycle was also lifted from the house of accused Surender @ Kala (since expired) and they were falsely implicated in this case.
According to the case of the prosecution, the said motorcycle was taken by accused Ashok on 28/08/2003 from one Mahender Singh for going to the house of his relative, who did not return the motorcycle, whereas before the Court, PW3 Mahender Singh has not identified accused Ashok and has stated that accused Ashok present in the court is not known to him. PW3 Mahender Singh has not supported the case of the prosecution and has rather stated that one Surender Singh, his customer, had taken his motorcycle after two months of the purchase of this motorcycle and had not turned up to return the same. PW3 Mahender Singh has further deposed that on 29/10/2003, he was informed about the motorcycle by the police officials. So, PW3 Mahender Singh has also not supported the case of the prosecution to the extent that police officials had told him that motorcycle was recovered from the possession of the accused persons. It is also not clarified whether Surender Singh, who had taken the motorcycle from PW3 Mahender Singh, was the same Surender Singh or someone else because during the proceedings, accused Surender @ Kala expired and accused Ashok has not been identified by PW3 Mahender Singh in any manner as he was not knowing accused Ashok. So, in absence of the corroboration from the side of PW3 Mahender Singh, the prosecution has not been able to link the motorcycle with the accused persons in any manner. SC No. 140/1/10 9/18
PW4 ASI Budh Prakash has stated in examination in chief that SI Ranbir Singh put barricades on the road for checking. The government vehicle was parked near that place, which is contrary to the statements of other witnesses, who have stated that government vehicle Qualis was used for nakabandi, while placing the same in zig zag manner on the road, so, it is doubtful whether the government vehicle Qualis was used in nakabandi or separate barricades were placed on road for checking.
According to PW10 Inspector Ravinder Ahlawat, he reached at the spot at about 9.00 p.m. as per directions of the DO on foot and at about 9.15 p.m., he had prepared rukka, which was handed over to Constable Rajender for registration of FIR, whereas PW4 ASI Budh Prakash has stated that Constable Rajender got the FIR registered and came back at the spot alongwith SI Ravinder Ahlawat to whom further investigation was handed over, so, it is not known whether PW10 Inspector Ravinder Ahlawat reached at the spot with Constable Rajender or both reached separately. It is also doubtful whether rukka was sent after reaching of PW10 Inspector Ravinder Ahlawat at the spot or he reached at the spot with Constable Rajender after getting registered the case. In the cross examination, PW4 ASI Budh Prakash has stated that Constable Rajender came back at the spot at about 11 p.m. He came alone. So, it is not known whether the examination in chief of this witness is to be relied upon or the cross examination.
PW5 Constable Ashok Kumar has also stated that SI Ranbir Singh put barricades on the road for checking. The government vehicle was parked near that place, which is contradictory to the depositions of other witnesses. PW5 has also stated that serial No. 1 was given to the pullanda containing the recovered articles effected from accused Ashok, whereas at the time of SC No. 140/1/10 10/18 identification of these articles, serial No. 1 on the pullanda was not found written. Again, PW5 Constable Ashok Kumar has stated in the cross examination that Constable Rajender left the spot with rukka at 9.15 p.m. and had gone to PS in Qualis vehicle with the driver. SI Ravinder Ahlawat reached at the spot prior to return of Constable Rajender with the copy of FIR. So, this fact is also in contradiction with the depositions of the other witnesses, who have stated that SI Ravinder Ahlawat reached at the spot with Constable Rajender.
Witnesses have also contradicted each other as to till what time, they remained present at the spot, when the accused persons were removed for medical examination and where they were locked up.
According to PW4 ASI Budh Prakash, they remained at the spot till 12.30 midnight alongwith the raiding party and they reached at PS Narela at about 12.45 a.m. night and further reached at the office of crime branch at 1.30 a.m. night. Writing work was done at the spot, while sitting in the vehicle and outside the vehicle, whereas other witnesses have stated that writing work was done , while sitting on the pavement/road under the streetlight.
PW7 HC Satyawan has stated in the cross examination that they left the spot in between 10.45 to 11 p.m. They went to PS Jahangir Puri with the accused persons and before that, they got conducted medical examination of accused persons. They reached at PS Jahangir Puri at about 11.25 p.m. Case property i.e. motorcycle and helmet were brought to PS. According to PW9 HC Rajender Kumar, second IO had completed the writing work till 12.30 a.m night and if it was so, then how PW7 HC Satyawan could have left the spot with the accused persons for their medical examination in between 10.45 to 11 p.m. PW9 HC Rajender Kumar has further SC No. 140/1/10 11/18 stated that from the spot, they had gone to PS Narela and from there, they had gone to their office at Prashant Vihar at about 1.30 a.m., whereas according to PW4 ASI Budh Prakash, first of all, accused were taken to PS Narela and after depositing the case property, they were brought to the office of crime branch. So, it is not known whether the police party with accused persons had gone to PS Narela or to PS Jahangir Puri or firstly for their medical examination and it is also doubtful whether the accused persons were locked up at PS Jahangir Puri or not. Variation in time is more than the natural variation, which is creating doubt on the depositions of the witnesses, hence, they cannot be relied upon.
According to PW9 HC Rajender Kumar, accused persons were locked up at PS Jahangir Puri by PW2 HC Azad Singh and PW4 HC Bush Prakash. Thereafter, these police officials came back to the spot and then accompanied them to PS Narela, whereas PW4 ASI Budh Prakash has stated that first of all, accused persons were taken to PS Narela and after depositing the case property, they were brought to the office of crime branch. PW4 ASI Budh Prakash has not deposed about PS Jahangir Puri in any manner or that the accused persons were locked up there, rather according to PW4 ASI Budh Prakash, accused persons were brought to the office of crime branch. PW2 HC Azad Singh has neither deposed in examination in chief nor in cross examination that accused persons were taken to PS Narela and from there, were removed to office of crime branch.
PW10 Inspector Ravinder Ahlawat has stated that he stayed at the spot till 23.00 a.m. night, whereas according to PW4 ASI Budh Prakash, they all remained at the spot till 12.30 midnight. According to PW9 HC Rajender Kumar, PW5 Constable Ashok Kumar had removed the motorcycle of accused SC No. 140/1/10 12/18 persons to PS Narela, whereas according to cross examination of PW10 Inspector Ravinder Ahlawat, Constable Rajender had alone removed the motorcycle of accused persons to PS Narela, where it was deposited with other case property. He reached at PS Narela at about 1.302.00 a.m. night.
It seems to be highly improbable because if PW10 Inspector Ravinder Ahlawat was present at the spot till 23.00 a.m. night, then how he could have reached at PS Narela before that time i.e. at 1.302.00 a.m. night. According to PW10 Inspector Ravinder Ahlawat, he reached at the office of Special Staff at about 23.00 a.m. night and simultaneously, he has stated that he stayed at the spot till 23.00 a.m. night, which cannot be accepted in any manner, which shows that he has deposed falsely before the Court and it is doubtful that he conducted any such proceedings, as deposed by him.
PW10 Inspector Ravinder Ahlawat has stated that accused persons were sent for their medical examination through PW2 HC Azad and PW4 ASI Budh Prakash at about 12.00 night and they came back at the spot at about 1.00 p.m., after putting the accused persons in the lockup of PS Jahangir Puri, which is contrary to the cross examination of PW4 ASI Budh Prakash, hence, all these facts have been deposed by the witnesses in contradiction with each other.
PW1 SI Jagging Singh is a witness of formal nature. He has recorded FIR of this case on the basis of rukka brought by Constable Rajender and sent by PW11 SI Ranbir Singh at about 9.30 p.m. Copy of FIR is Ex. PW1/A and his endorsement is Ex. PW1/B. He has also produced the original FIR register. He handed over the copy of FIR and rukka to Constable Rajender to handover the same to PW10 SI Ravinder Ahlawat. PW1 SI Jagir Singh has not been cross examined by learned defence counsel in any manner.
PW6 Sh. K.C. Varshney has proved his report regarding SC No. 140/1/10 13/18 examination of country made katta and misfired cartridge recovered from the possession of accused Ashok. His report in this respect is Ex.PW6/A. According to him, the country made katta Ex. F1 and misfired cartridge Ex. A1 were firearm and ammunition, as defined in the Arms Act. He has also identified both country made katta Ex. F1 and misfired cartridge Ex. A1 before the Court, which were examined by him. This witness has also not been cross examined by learned defence counsel in any manner.
The pullandas were deposited in the FSL by PW8 HC Jai Singh on 17/09/2003 and after depositing the same vide RC No. 93/21/03 with FSL form, he handed over the receipt on RC to the MHC(M). PW8 has not been cross examined by learned defence counsel in any manner.
PW12 Sh. Deependra Pathak has proved the sanction given by him U/s. 39 of Arms Act as Ex. PW12/A and complaint U/s. 195 of Cr.P.C. as Ex. PW12/B and this witness has also not been cross examined by learned defence counsel in any manner.
As the depositions of crime branch officials i.e. raiding party are not inspiring confidence and cannot be relied upon, so the deposition of DO, examination of exhibits from FSL and sanction U/s. 39 of Arms Act and complaint U/s. 195 of Cr.P.C. have no relevancy against the accused persons.
Learned defence counsel has contended that according to rukka Ex. PW2/J , while the motorcycle was in motion, the pillion rider made a fire. Meanwhile, the motorcycle struck against the pavement and fell down. On seeing the raiding party, both driver and the pillion rider started running. Driver made a fire, while aiming HC Azad Singh. Meanwhile, HC Azad Singh overpowered the driver and Constable Ashok Kumar snatched katta from his hands. The pillion rider was overpowered by Constable Krishan Kumar and SC No. 140/1/10 14/18 Constable Rajender Singh snatched the katta from him.
Learned defence counsel has further contended that witnesses have not corroborated in this respect. PW2 HC Azad Singh has stated that Constable Krishan overpowered the driver of the motorcycle and Constable Rajender snatched katta from the driver, which is contrary to the contents of rukka. Learned defence counsel has further contended that according to the deposition of PW2 HC Azad Singh, the katta , which was recovered from accused Ashok i.e. driver of the motorcycle, was found loaded , whereas according to rukka, he had made fire from the katta, so, the katta could not have been found loaded. Learned defence counsel has further contended that according to PW2 HC Azad Singh, accused Surender was found having katta loaded with one live cartridge, which is also not possible as according to the rukka, accused Surender was pillion rider and he had also made fire from the katta. Learned defence counsel has further contended that PW2 HC Azad Singh has stated that one missed cartridge was recovered from the pocket of accused Surender, whereas according to rukka, one live cartridge was recovered from accused Surender, which shows that PW2 HC Azad Singh was not present at the spot and no such incident had taken place in the manner, as deposed by these witnesses.
Learned defence counsel has further contended that according to cross examination of PW2 HC Azad Singh, he had conducted search of accused Ashok. In the formal search, he recovered one katta from the possession of accused. Learned defence counsel has further contended that according to rukka, accused Ashok made fire from the katta, so, the same could not have been recovered from his formal search and according to rukka, it was snatched from the hands of accused Ashok by Constable Rajender Singh. So, SC No. 140/1/10 15/18 this witness cannot be believed in any manner.
Learned defence counsel has further contended that witnesses have contradicted each other as to whether the nakabandi was made with the help of barricades or gypsy or Qualis. Learned defence counsel has further contended that according to PW5 Constable Ashok Kumar, he used the bike of second IO, while he had gone to Crime Branch office, whereas according to second IO PW10 Inspector Ravinder Ahlawat, he reached at the spot by bus, so, it is not known as to from where, bike of second IO reached at the spot, which creates doubt on the depositions of the witnesses.
Learned defence counsel has further contended that according to the witnesses, helmet of accused Ashok was also seized int his case alongwith motorcycle, but the same has not been produced before the Court at any time during the examination of raiding party witnesses, hence, it also seems to be doubtful that the motorcycle alongwith helmet was seized from the spot.
Learned defence counsel has further contended that according to PW4 ASI Budh Prakash, Constable Rajender got the FIR registered and came back to the spot alongwith PW10 SI Ravinder Ahlawat to whom further investigation was handed over, whereas according to PW10 Inspector Ravinder Ahlawat, he reached at the spot alone, so the contradictions in the depositions of both the witnesses are material and rendering them unbelievable. Learned defence counsel has further contended that it has come in the cross examination of PW4 ASI Budh Prakash that Constable Rajender came back at the spot at about 11 p.m. and he came alone, which is self contradictory of his examination in chief and it is doubtful whether constable Rajender came back at the spot alone or with PW10 Inspector Ravinder Ahlawat.
Learned defence counsel has further contended that witnesses have SC No. 140/1/10 16/18 also contradicted each other on the fact as to by whom the motorcycle was deposited in the malkhana. According to cross examination of PW5 Constable Ashok Kumar, he deposited the motorcycle in the malkhana at around 11 a.m. and came back to the spot within 10 minutes, whereas according to cross examination of PW7 HC Satyawan, case property i.e. motorcycle and helmet were brought to PS. Both were seized in this case. One Constable,namely, Rajender brought the motorcycle to PS Narela and according to PW10 Inspector Ravinder Ahlawat, after recording the statement of raiding party, they came back to PS Narela and deposited the case property in the malkhana. According to his cross examination, Constable Rajender alone had brought the motorcycle of the accused persons to PS Narela, where it was deposited with other case property. He deposited the motorcycle with sealed pullanda and helmet with the MHC(M). So, witnesses have not corroborated each other in this respect, which shows that motorcycle has been planted upon the accused persons.
Learned defence counsel has further contended that according to PW5 Constable Ashok Kumar, rukka was sent at around 9.15 p.m. through constable Rajender, whereas according to PW9 HC Rajender Kumar, constable Rajender left the spot with the rukka on a bike with driver and came back at the spot at about 11 p.m. with copy of FIR and original rukka, so this contradiction is material and creating doubt on the depositions of the witnesses as to whether the FIR was got registered in the manner, as deposed by the witnesses or the case was fabricated against the accused persons.
In view of above discussion, the witnesses have contradicted on each and every aspect of the incident. They are contradictory about the fact as to whether they reached at the spot in Qualis vehicle or in gypsy, whether they SC No. 140/1/10 17/18 had made nakabandi with the help of barricades or gypsy or Qualis vehicle. The witnesses have also contradicted about the manner of arrest of the accused persons and recovery of cartridges and kattas from their possession. The witnesses have also contradicted as to till what time, they remained there and where the writing work was done. The witnesses have also contradicted as to in what manner, the FIR of this case was got registered. The witnesses have also contradicted as to who got deposited the case property and where and further at what time. The witnesses have contradicted as to where the accused persons were locked up in a PS or were taken to crime branch office. The witnesses have also contradicted about the time till when the proceedings were conducted. The helmet, which was seized in this case, was not produced before the Court at any time and the witness, to whom, the motorcycle was belonging, has not supported the case of the prosecution in any manner. So, all these contradictions are raising doubt on the testimonies of the witnesses, for which, they cannot be relied upon as they are not inspiring any confidence and are not trustworthy.
Accordingly, prosecution has not been able to prove the offences U/s. 186/34 of IPC, U/s. 353/34 of IPC and U/s. 307/34 of IPC alongwith U/s. 25/27 of Arms Act beyond reasonable doubts against accused Ashok Kumar, hence, accused Ashok Kumar is acquitted for the same. Announced in the open court On 13th of August, 2012 (Virender Kumar Goyal) Additional Sessions Judge Fast Track court, Rohini/Delhi SC No. 140/1/10 18/18 SC No. 140/1/10 19/18