Delhi District Court
State vs . Harprashad @ Hari & Ors. on 11 September, 2009
State Vs. Harprashad @ Hari & Ors.
IN THE COURT OF SH. SANJAY SHARMA: ASJIII (EAST)
KARKARDOOMA COURTS, DELHI
State Versus
1 Harprashad @ Harish
S/o Bhoran
R/o 334D1/2, New Sanjay Amar Colony,
Delhi.
2 Santosh Yadav
S/o Ram Saroop
R/o 32/31, Gali No.10,
Bhikam Singh Colony,
Delhi.
3 Rama Shankar
S/o Mata Parshad
R/o Kothi No.5, Jagriti Enclave,
Delhi.
4 Naushad
S/o Mohd. Yunas
R/o 33/20, Gali no.10,
Bhikam Singh Colony,
Delhi.
Sessions Case No. 65/05, 155/07, 67/05
FIR No. 370/04, 371/04, 372/04
Under Section 399/402 IPC &
25 Arms Act
Police Station Krishna Nagar
Date of Institution of Case 14.03.2005
Date on which judgment Reserved 08.09.2009
Date on which judgment delivered 11.09.2009
Page 1 of 12
State Vs. Harprashad @ Hari & Ors.
J U D G M E N T :
1. The facts of the present prosecution case in brief are that on 24.8.2004 at about 8.50 PM accused Harprashad @ Hari, Santosh Yadav, Rama Shankar and Naushad were arrested from near Railway Crossing, Old Seelam Pur on the allegations that they were allegedly found making preparations to commit dacoity. Allegedly, one iron rod was recovered from accused Naushad, one loaded countrymade pistol was recovered from accused Santosh, another loaded countrymade pistol was recovered from Harish @ Harprashad and one loaded English pistol was recovered from accused Rama Shankar. A case U/s.399/402 IPC was registered against all the four accused vide FIR No. 370/04. A case each U/s.25 Arms Act was also registered against accused Santosh, Harish @ Harprashad and Rama Shankar Pandey vide FIR No. 371, 372, 373 of 2004. On completion of investigation, charge sheet in all the four cases were filed.
2. All the said cases except case FIR No. 373/04 U/s.25 Arms Act were committed to the Court of sessions by the Ld. MM as they all resulted out of the same transactions. On considering the records of the case, Page 2 of 12 State Vs. Harprashad @ Hari & Ors.
charge was initially framed against three accused namely Harprashad, Santosh and Rama Shankar for the offences punishable U/s.399/402 IPC. The fourth accused Naushad was already declared PO who was subsequently arrested and a similar charge was framed against him dated 07.10.2005 to which the accused persons pleaded not guilty and claimed trial. Separate charges were also framed against accused Harprashad and accused Rama Shankar U/s.25 Arms Act in case FIR No. 371 & 372/2004. They also pleaded not guilty to the said charge.
3. All the three cases were tried together and case FIR No. 370/04 (SC No. 65/05) was treated to be the main case and the evidence in all the proceedings were recorded in that case.
4. At the trial, the prosecution examined 8 witnesses. PW1 HC Brij Pal, PW3 ASI Abdul Subhan, PW4 SI Jaswant Singh and PW5 Ct. Ombir were members of the raiding party who had apprehended the accused. They all deposed about the raid conducted upon secret information, apprehension of the accused and the recoveries effected from them as Page 3 of 12 State Vs. Harprashad @ Hari & Ors.
aforesaid. They also proved the various documents prepared regarding the said recoveries as well as the arrest documents of the different accused.
5. PW2 ASI Mahesh Yadav was the second IO who had formally arrested the accused. PW6 ASI Rajender Prasad was the Duty Officer who recorded the different FIRs Ex. PW6/A, PW6/C & PW6/E, made endorsements on the rukkas Ex. PW6/B, PW6/D, & PW6/F.
6. PW7 SI Todar Singh was the last IO who had simply filed the charge sheet. PW8 HC Babu Ram was the MHC(M) who proved the relevant entries in Register No.19 as Ex. PW8/A.
7. Statement of accused were recorded U/s.313 Cr.P.C. and the entire incriminating evidence was read over to them which they denied and pleaded innocence. They pleaded that they were lifted from their respective houses and were falsely implicated in this case and that the recoveries were planted upon them. None of them examined any witness Page 4 of 12 State Vs. Harprashad @ Hari & Ors.
in his defence despite opportunity granted.
8. I have heard the Ld. Addl. PP for the State and Ld. Counsel for the accused.
9. The contradictions appearing in the testimony of the material witnesses require mention. At the outset, the receipt of secret information and joining of the members of the raiding party itself becomes doubtful in view of the contradictions as pointed out during the course of arguments. PW1 deposed that while he was on patrolling duty, at about 8.35 PM, he met the SHO near Chhachhi Building, Lal Quarters, Krishna Nagar, who disclosed him about the secret information and then they went to PP Old Seelam Pur where SI Jaswant and other members of the raiding party joined them. He did not disclose as to what was the secret information. To the contrary, PW3 deposed that secret information was received by SI Jaswant Singh and he recorded DD No. 39 in this respect and informed the SHO and thereafter constituted a raiding party. PW4 deposed that he received a secret information on phone at the PP and then he lodged the Page 5 of 12 State Vs. Harprashad @ Hari & Ors.
DD entry and informed the IO and organized the raiding party. PW5 further deposed that the secret information was received by SI Jaswant and then he organized a raiding party after disclosing the information. He did not depose that the SHO was also informed.
10. PW1 remained silent about the secret informer and never deposed that the accused were pointed out by any secret informer who was also present there. He simply deposed that on reaching the Railway Crossing, the SHO directed SI Jaswant to overhear the talks between the accused. PW3 in this regard deposed that when they reached the Railway Crossing, SHO also reached there and the secret informer was with them. At about 9 PM, the secret informer pointed out towards the 5 persons sitting near the guard room of the railway crossing. PW4 in this respect deposed that they reached the railway crossing where SHO also joined and the secret information was with him who disclosed about the arrival of the accused and thereafter on the directions of the SHO he went to overhear the talks between the accused. PW5 deposed that when they reached the railway crossing the secret informer met them there and pointed out Page 6 of 12 State Vs. Harprashad @ Hari & Ors.
towards the place where the accused were sitting. It was thereafter that the SHO reached the spot.
11. The above contradictions appearing in the testimonies of the members of the raiding party clearly show that there is clear contradiction in respect of the fact as to how the secret information was received and when and where the secret informer met the IO. It is also worthnoting that the SHO PS Krishna Nagar has not been cited as a witness to this case though the raid was conducted on his instructions.
12. It was further pointed out that as per the testimony of PW1, when they reached the spot at 9 PM, he saw 5 persons conversing between railway track and the wall and they were overpowered. PW3 deposed that the secret informer pointed out towards 5 persons sitting near the guard room of the railway crossing. According to PW4, the secret informer told him upon reaching the spot that the accused had arrived. He deposed that he heard the conversation from near the guard room wall. He was also confronted with his previous statement Ex. PW3/DA when he Page 7 of 12 State Vs. Harprashad @ Hari & Ors.
deposed that he received the secret information through telephone where this fact was not recorded. In his crossexamination, he clarified that the informer pointed out the accused on their arrival meaning thereby that the accused arrived after the arrival of the raiding party. PW5 deposed that the informer pointed out the place where the accused were sitting but did not depose about the place specifically. Hence, the presence of the secret informer itself becomes doubtful as also the place where the accused persons were found sitting and conversing.
13. According to PW1 there were total 10 persons in the raiding party, out of which 4 were in civil dress and 6 were in uniform. Those 6 persons had gone to the spot in the gypsy of the SHO. PW3 deposed that all the police officials were in civil dress. In his crossexamination, he further deposed that the SHO and the officials accompanying him were in uniform and the rest were in civil clothes. He further deposed that the accused were sitting outside the guard room, contrary to the deposition of other witnesses. PW5 again deposed that the members of the raiding party were in civil dress and all were having service pistols while this fact Page 8 of 12 State Vs. Harprashad @ Hari & Ors.
of all the members carrying arms was not deposed by the other witnesses. In his crossexamination, he further deposed that the accused were standing outside the guard room, however, to the contrary PW3 deposed that the accused could be seen when they arrived but could not be seen when they sat down.
14. According to PW3, he was well aware about what the secret information was i.e. that the accused would be committing dacoity at Shanti Mohalla. The information was received at about 8.30 PM as per the deposition of PW3 and the conversation was allegedly heard at about 9 PM. It is quite surprising that when it was already known that the accused would be committing dacoity at Shanti Mohalla, they would again assemble at an open place to make further preparations to commit dacoity, waiting for the police officials to reach there and hear their conversation. PW4 also deposed that the details of the information was known to him when he organized the raiding party and reached the spot. He deposed that he made DD entry no. 39 in this respect but even the copy of the same was not placed on record, as admitted by him in the Page 9 of 12 State Vs. Harprashad @ Hari & Ors.
crossexamination.
15. PW4 deposed that he had not interrogated the accused as to from where they had procured the weapons or whether the weapons were in working order. He also failed to depose as to whom the information about the arrest of the accused was given to. He further deposed that the writing work was done at the spot while sitting on the benches which were already lying there. PW3 deposed that the writing work was done while sitting on the bench which was called by the SHO from the nearby market. PW5 deposed that the writing work was done while sitting on the earth/footpath. PW3 deposed that the writing work was done under the light of an electric pole and in mercury lights on the side of the spot. PW4 deposed that there were street lights and PW5 deposed that there were tube lights near the crossing on both the sides. The source of light was admittedly not shown in the site plan. It has also been admitted by the witnesses that said railway crossing remained closed and was not in use. It was also admitted by the witnesses that the market was hardly 4050 steps away from the spot and the residential area was at a distance of Page 10 of 12 State Vs. Harprashad @ Hari & Ors.
about 200300 meters from the crossing. But despite that, no serious effort was made to join any public witness to the raid but only a lip service was provided by the witnesses. It was also deposed by the PW5 that no identification mark was placed on the weapons allegedly recovered from the accused.
16. It is clear from the above discussion that none of the material witnesses could corroborate even a single fact and there are material contradictions recorded in the testimony of the main witnesses who were allegedly the members of the raiding party. These material contradictions go to the very root of the case and make the testimony of the above witnesses unworthy of credence. Hence, in my opinion, the accused cannot be convicted on the basis of the evidence which has come on record. It could not be proved beyond reasonable doubt that the accused assembled at the given spot and made preparations to commit dacoity. The recoveries effected from them also become doubtful. Accordingly, accused Harprashad, Rama Shankar and Naushad are hereby acquitted of the offences punishable U/s. 399/402 IPC. Accused Harprashad and Rama Page 11 of 12 State Vs. Harprashad @ Hari & Ors.
Shankar are also acquitted of the offence punishable U/s.25 Arms Act. They are set at liberty. Their personal bonds and surety bonds are discharged.
17. File be consigned to Record Room and be recalled as and when accused Santosh Yadav (Proclaimed Offender) is arrested or is otherwise produced before this Court. File be consigned to Record Room. The case property of this case be confiscated to the Nazarat. Announced in the Open Court on: 11th September, 2009.
(SANJAY SHARMA) ADDL. SESSIONS JUDGEIII(EAST) KARKARDOOMA COURTS, DELHI Page 12 of 12