Delhi District Court
State vs Abodh Sharma on 11 May, 2015
FIR No.131/06 PS : Khajuri Khas
IN THE COURT OF SH. PULASTYA PRAMACHALA
ADDITIONAL SESSIONS JUDGE
SHAHDARA DISTRICT, KARKARDOOMA COURTS, DELHI.
FIR No. : 131/06
Under Section : 353/186/307/34 IPC and 27/54/59 Arms Act
Police Station : Khajuri Khas
Sessions Case No : 46/14
Unique I.D. No. : 02402R0289812006
In the matter of :-
STATE
VERSUS
1. Abodh Sharma
S/o. Sh. Ram Sharan Sharma
R/o.H.No.2/29, Vishnupuri, Aligarh.
2. Abhishek @ Aasu
S/o. Sh. Ravinder Singh Chauhan
R/o.H.No.2/29, Vishnupuri, Aligarh.
3. Jitender @ Jeetu
S/o. Sh. Peetamber Singh Jat
R/o Chinta Ki Nagaria, PS-Ghonda
District-Aligarh, U.P.
4. Sarif
S/o Sh. Nazrul Qureshi
R/o Village-Zevar, near Ansari Masjid
District-Gautambudh Nagar, U.P.
5. Lalu Khan
S/o Sh. Gafur Khan
R/o Village-Fatehpur, PS-Khar
District-Aligarh, U.P.
6. Sushil Pandit @ Gatura
S/o Sh. Fateh Chand
R/o Village and PS-Gonda
District-Aligarh, U.P. ............Accused persons
(Pulastya Pramachala)
Page no. 1 of 39 ASJ (Shahdara)
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FIR No.131/06 PS : Khajuri Khas
Date of Institution : 19.05.2006
Date of Committal : 02.06.2006
Date of receiving in this Court : 24.01.2014
Date of reserving judgment : 28.04.2015
Date of pronouncement : 11.05.2015
Decision : Accused Jitender @ Jitu is convicted for
offence punishable under Section 186/353
IPC and under Section 27 of Arms Act.
Accused Sharif and Sushil Pandit @ Gatura
are convicted for offence punishable under
Section 25 of Arms Act.
All accused persons are acquitted of the
charges under Section 307/34 IPC.
Accused Abodh, Abhishek and Jitender @
Jitu are acquitted of the charges under
Section 25 of Arms Act.
Accused Abodh, Abhishek, Sharif, Sushil
Pandit and Lallu Khan are acquitted of the
charges under Section 186/353 read with 34
IPC.
JUDGMENT
THE CASE SET UP BY THE PROSECUTION :-
1. On 23.03.2006, SHO of PS-Khajoori Khas was given secret information about presence of some criminals at Vishal Vatika, Sonia Vihar, Yamuna Khadara, Delhi. The secret informer had given information that these criminals were wanted in the murder case of Ex-MLA namely Malkhan Singh. Such information was recorded vide DD No. 5-A and SHO Inspector M.S. Shekhawat formed a police team to raid Vishal Vatika, in order to apprehend those suspects. The police team constituted of SHO, Inspector B.P. Sharma, S.I. Rajesh Dogra, H.C. Sompal, Ct. Sanjay, Ct. Khem Chand, Ct. Umesh, Ct. Vinod, Ct.
(Pulastya Pramachala) Page no. 2 of 39 ASJ (Shahdara) Karkardooma Courts / Delhi FIR No.131/06 PS : Khajuri Khas Sohanvir, Ct. Neeraj and Ct. Nathu. The police team reached near Vishal Vatika. The secret informer along with Ct. Vinod were sent towards Yamuna Khadar to confirm the presence of wanted persons. They came back with confirmation of their presence. Thereafter, police team surrounded those persons, who were sitting beneath a Peepal tree. SHO warned those persons to surrender before the police, however, one of those persons fired at police team. In retaliation, under instructions of SHO, Ct. Sohanvir and Ct. Vinod also fired towards wanted persons. However, no one was injured from either side. The wanted persons tried to flee away. However, they were over-powered by the police team and during interrogation, police came to know about their particulars including their names. Accused Jitu @ Pramod @ Jitender was found in possession of country-made pistol with one fired cartridge and two live cartridges. Accused Sunil Sharma @ Sandeep and Sharif were found in possession of a button-operated knife. Accused Abhishek and Abodh Sharma were also found in possession of country-made pistol with live cartridges. Besides these accused persons, accused Lalu Khan was also apprehended along with them. S.I. Rajesh Dogra conducted proceedings on the spot, prepared pullandas of case properties and thereafter, he prepared a rukka for registration of FIR. On the basis of rukka, FIR was registered under Section 353/186/307/34 IPC and 25/27 of Arms Act. Further investigation was assigned to S.I. Rakesh Kumar, who conducted further proceedings to prepare site plan, arrested the accused persons and seized the case properties. After conclusion of investigation, charge-sheet was prepared. Sh. Rajiv Ranjan, the then ld. Addl. DCP (Pulastya Pramachala) Page no. 3 of 39 ASJ (Shahdara) Karkardooma Courts / Delhi FIR No.131/06 PS : Khajuri Khas (North East), filed a complaint under Section 195 Cr.P.C. in respect of offence under Section 186 IPC. The fire arms and cartridges were sent to FSL Rohini, for their examination. Later on, though FSL report was filed on the record, however, sanction under Section 39 Arms Act was probably neither obtained nor filed on the record.
2. On 20.09.2010, charges were framed for offences under Section 307/34 IPC, 186/34 IPC and 353/34 against all the accused persons namely Abodh Sharma, Abhishek, Jitender, Sarif, Lalu Khan and Sushil Pandit, to which they pleaded not guilty and claimed trial. On the same day, separate charges were also framed for offence under Section 25 of Arms Act against accused Abodh Sharma, Sushil Pandit, Sarif and Abhishek, to which they pleaded not guilty and claimed trial. Separate charge was also framed for offence under Section 25/27 of Arms Act against accused Jitender @ Jitu, to which he pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE :-
3. Prosecution examined 18 witnesses in support of its case.
PW Name of Role of witness Proved
No. Witness document/article
PW-1 Sh. Rajiv The then Addl. DCP, Complaint i.e.
Ranjan who had given Ex.PW1/A.
complaint U/s 195
Cr.P.C. against all
accused persons.
PW-2 ASI Tejwati Duty Officer Copy of FIR i.e.
Ex.PW2/A and copy of
DD No. 5-A i.e.
Ex.PW2/B.
(Pulastya Pramachala)
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FIR No.131/06 PS : Khajuri Khas
PW-3 H.Ct. Sushil Photographer, Mobile 07 photographs of the
Kumar Crime Team, North East spot i.e. Ex.PW3/P-1 to
District. Ex.PW3/P-7 and their
negatives i.e.
Ex.PW3/P-8 to
Ex.PW3/P-14.
PW-4 S.I. E.S. Yadav Incharge, Mobile Crime Crime team report i.e.
Team, N/E District. Ex.PW-4/A.
PW-5 Sh. Puneet Puri Senior Scientific Officer FSL report i.e.
(FSL), Rohini, Delhi Ex.PW5/A.
PW-6 Inspector M.S. The then SHO of His complaint i.e.
Shekhawat concerned PS, who Ex.PW6/A.
formed the raiding
party/Witness to
recovery of weapons
from accused persons
and their seizure.
PW-7 H.C. Sompal Member of raiding Sketch of country-
party/witness to arrest of made pistol and live accused Jitender @ Jitu cartridges recovered and recovery effected from accused Jitender from him. i.e.Ex.PW7/A,its seizure memo i.e. Ex.PW7/B,seizure-
memo of 02 empty rounds i.e. Ex.PW7/C, arrest memo of accused Jitender i.e. Ex.PW7/D,his personal search memo i.e. Ex.PW7/E, disclosure statement i.e. Ex.PW7/F.He identified country-made pistol i.e. Ex.PW7/Article-1 and cartridges i.e.Ex.PW7/Article-2.
(Pulastya Pramachala)
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FIR No.131/06 PS : Khajuri Khas
PW-8 Ct. Sanjay Member of raiding Sketch of knife i.e.
Kumar party/witness to arrest of Ex.PW8/A, seizure
accused Sharif and memo of knife i.e
recovery effected from Ex.PW8/B, arrest
him. memo of accused
Sharif i.e. Ex.PW8/C,
his personal search
memo i.e. Ex.PW8/D.
He identified knife i.e.
Ex.PW8/Article-1.
PW-9 H.C. Krishan He deposited the
Kumar exhibits of the case at
FSL.
PW-10 H.C. Umesh Member of raiding Sketch of knife i.e.
Kumar party/witness to arrest of Ex.PW10/A, seizure
accused Sushil Pandit memo i.e. Ex.PW10/B,
and recovery effected arrest memo of
from him. accused Sushil i.e.
Ex.PW10/C, his
personal search and
memo i.e. Ex.PW10/D.
He identified knife i.e.
Ex.P-10/Article-1.
PW-11 H.C. Sohanvir Member of raiding Arrest memo of
party/witness to arrest of accused Lallu Khan i.e. accused Lallu Khan. Ex.PW11/A and his This witness had fired personal search memo bullet upon the accused i.e. Ex.PW11/B. He persons. identified two fired cartridges i.e. Ex.PW11/Article-1 and Ex.PW11/Article-2.
(Pulastya Pramachala)
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PW-12 H.C. Neeraj Member of raiding Sketch of pistol (katta)
Kumar party/witness to arrest of and cartridges i.e.
accused Abodh Sharma Ex.PW12/A, its seizure
and recovery effected memo i.e. Ex.PW12/B,
from him. arrest memo of
accused Abodh i.e.
Ex.PW12/C and his
personal search memo
i.e. Ex.PW12/D. He
identified pistol i.e.
Ex.PW12/Article-1, live
cartridge
Ex.PW12/Article-2,
fired/used cartridges
i.e. Ex.PW12/Article-3
and Ex.PW12/Article-4.
PW-13 ASI Om MHC(M) Photocopies of register
Prakash no. 19 i.e. Ex.PW13/A
(colly.), photocopy of
RC i.e. Ex.PW13/B
and photocopy of
receipt regarding
deposit of case
property i.e.
Ex.PW13/C.
PW-14 Ct. Khem Member of raiding
Chand party/witness to arrest of
accused Sandeep @
Sushil and recovery
effected from this
accused.
PW-15 H.C. Nathu Member of raiding
Ram party/witness to arrest of
accused Sharif and
recovery effected from
him.
(Pulastya Pramachala)
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PW-16 S.I. Rakesh 2nd IO of this case, who Site plan i.e.
Kumar arrested all the accused Ex.PW16/A.
persons in this case and
prepared their arrest
documents
PW-17 Ct. Vinod Member of raiding party/ Sketch memo of
Kumar witness to arrest of revolver i.e.
accused Abhishek and Ex.PW17/A, seizure
recovery effected from memo of revolver i.e.
him. Ex.PW17/B, arrest
memo of accused
Abhishek i.e.
Ex.PW17/C and his
personal search memo
Ex.PW17/D.
PW-18 Inspector First Investigating Rukka i.e. Ex.PW18/A.
Rajesh Kumar Officer, Member of Seizure memos.
Dogra raiding party/Witness to
arrest of accused
Jitender and recovery
effected from him. He
prepared rukka and
seized the case
properties recovered
from the accused
persons
PLEA OF ACCUSED PERSONS UNDER SECTION 313 CR.P.C.
4. All accused persons were examined under Section 313 Cr.P.C.
Accused Abodh Sharma show ignorance to the secret information received by PW-6 SHO of PS-Khajoori Khas on 23.03.2006 regarding assembly of suspects of murder of Sh. Malkhan Singh (Ex. MLA), near Vishal Vatika, Sonia Vihar, Delhi. He denied correctness of the evidence to the effect that police team had reached thokar no. 8, Vishal Vatika, Sonia Vihar, on 23.03.2006 or that he along with co-accused (Pulastya Pramachala) Page no. 8 of 39 ASJ (Shahdara) Karkardooma Courts / Delhi FIR No.131/06 PS : Khajuri Khas persons were surrounded and later on, apprehended by the police team. He also denied correctness of the evidence that different weapons were recovered from each one of six accused persons except Lalu Khan or that he was found in possession of one country-made pistol and three live cartridges. In respect of complaint under Section 195 Cr.P.C., he took plea that it was a false complaint. He further took plea that he was falsely implicated and he was not present at the spot as shown by the prosecution. According to him, he was lifted from a telephone booth situated at Khajoori Khas, Main Market and nothing was recovered from his possession.
5. Accused Sharif also denied correctness of all allegations regarding assembly of accused persons at thokar no. 8, Vishal Vatika or their apprehension by the police team or recovery of several weapons from each accused persons, including a button-operated knife from the possession of this accused. He took plea that he was falsely implicated and was arrested from Sahibabad Mandi, Ghaziabad, on 23.03.2006.
6. Accused Lalu Khan also denied correctness of all the allegations and took plea that he was lifted from Vaishali, Ghaziabad, U.P and was taken to PS-Khajoori Khas, where police obtained his signature on blank papers. He opted to lead defence evidence, but he did not lead any defence evidence.
7. Accused Sushil also denied correctness of all the allegations and took plea that he was lifted from a public telephone booth, situated at Khajoori Khas, Main Market and was falsely implicated in this case.
8. Accused Abhishek and Jitender also denied correctness of all the allegations and took similar plea regarding their lifting by police from a (Pulastya Pramachala) Page no. 9 of 39 ASJ (Shahdara) Karkardooma Courts / Delhi FIR No.131/06 PS : Khajuri Khas public telephone booth, situated at Khajoori Khas, Main Market and regarding their false implication in this case. In respect of DD No. 5-A, all accused persons show their ignorance.
CHARGE :-
9. All accused persons were charged with allegations that on 23.03.2006, at about 11:50 PM (should be AM), they formed common intention to fire upon police persons being present in front of Vishal Vatika, Thokar Yamuna Khadar, Delhi and in furtherance of their common intention, they fired upon police party consisting of S.I. Rajesh Dogra and others with intention or knowledge and under such circumstances that if they would have caused death, then they would have been guilty of murder and thus, they committed offence punishable under Section 307/34 IPC.
10.They were also charged with allegations that on same date, time and place, they formed common intention and in furtherance of such common intention, they obstructed above-mentioned police officials, while they were discharging their official duty and thereby, they committed offence punishable under Section 186/34 IPC. They were also charged with allegations that in furtherance of their common intention, they assaulted and used criminal force on the members of police party with intention to prevent and deter them in discharging their duty and thereby, they committed offence punishable under Section 353/34 IPC.
11. It was also alleged against accused Abhishek that he was found in possession of one revolver loaded with 06 live cartridges and thus, he committed offence punishable under Section 25 of Arms Act.
(Pulastya Pramachala)
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12.It was alleged against accused Sushil and Sharif that they were found in possession of one button-operated knife (each) without any license or permit and in contravention of notification issued by Delhi Administration and thus, they committed offence punishable under Section 25 of Arms. Act.
13. It was also alleged against accused Abodh Sharma that he was found in possession of one country-made pistol with 03 live cartridges and thus, he committed offence punishable under Section 25 of Arms Act.
14. Similarly, it was also alleged against accused Jitender @ Jitu @ Pramod that he was found in possession of one country-made pistol and 02 live cartridges as well as 01 empty cartridge, which was fired by him upon police party and thus, he committed offence punishable under Section 25 and 27 of Arms Act.
APPRECIATION OF EVIDENCE AND FINDINGS :-
15. I shall take up the first question that whether the accused persons had assembled at thokar no. 8, near Vishal Vatika, Sonia Vihar, Delhi? Answer to this question is dependent upon the appreciation of testimony of members of the police team, which allegedly raided this place and found the accused persons sitting under a Peepal tree. PW-6/Inspector M.S. Shekhawat was leader of this police team being SHO of PS-Khajoori Khas. Besides PW-6/Inspector M.S. Shekhawat, PW-7/H.C. Sompal, PW-8/Ct. Sanjay Kumar, PW-10/H.C. Umesh Kumar, PW-11/H.C. Sohanvir, PW-12/H.C. Neeraj Kumar, PW-14/Ct. Khem Chand, PW-15/H.C Nathu Ram, PW-17/Ct. Vinod Kumar and PW-18/Inspector Rakesh Dogra, were members of this police team. PW-6/Inspector M.S. Shekhawat deposed that on 23.03.2006, (Pulastya Pramachala) Page no. 11 of 39 ASJ (Shahdara) Karkardooma Courts / Delhi FIR No.131/06 PS : Khajuri Khas PW-17/Ct. Vinod along with one secret informer came to his office and told him that the suspects of murder of Ex. MLA Sh. Malkhan Singh would gather at thokar no. 8, Near Vishal Vatika. He lodged this information vide DD No.5-A and conveyed this information to his senior officers. He formed a police team consisting of around 10 persons. Except Inspector B.P. Sharma, other members of the team were produced as witness in this case. PW-6 further deposed that they reached near Vishal Vatika along with secret informer. Four officials namely Ct. Sohanvir/PW-11, Ct. Vinod/PW-14, Ct. Nathu/PW-15 and Ct. Neeraj/PW-12 were in civil dress, while the remaining officials were in their uniform. The secret informer along with Ct. Vinod went towards thokar no. 8 and came back. They confirmed that the criminals, as per information received by PW-6, were sitting under a Peepal tree at thokar no. 8. PW-6 gave briefing to his police team. He along with S.I. Rajesh Dogra asked some passersby to join the raiding team, but none agreed. Thereafter, they all reached thokar no. 8 and surrounded six persons, who were sitting under the Peepal tree. PW-6 warned them to surrender, but one of them took out a country made pistol and fired upon the police team. In retaliation, Ct. Vinod/PW-17 and Ct. Sohanvir/PW-11 also returned fire, but no one was injured from either side. Thereafter, all members of police team over-powered those six persons. PW-6 interrogated all those six persons, who disclosed their name as Jitu, Sharif, Abhishek, Abodh, Sunil and Lalu Khan. PW-6 called crime team on the spot. Accused Jitender @ Janu was found in possession of a country-made pistol and 02 live cartridges. In his pistol, one empty fired cartridge was also found. Accused Sharif and Sunil (Pulastya Pramachala) Page no. 12 of 39 ASJ (Shahdara) Karkardooma Courts / Delhi FIR No.131/06 PS : Khajuri Khas were found in possession of one button-operated knife. Accused Abodh was found in possession of country-made pistol and 03 live cartridges. Accused Abhishek was found in possession of country-made revolver containing 06 cartridges. All these accused persons were produced before PW-6 by different members of the police team. S.I. Rajesh Dogra and Inspector B.P. Sharma had taken measurement of weapons recovered from the accused persons. S.I. Rajesh Dogra had prepared sketch of weapons and he had seized the same, through separate seizure memos after preparing pullanda/parcels of the same. All parcels were sealed with seal of 'MSS'. S.I. Rajesh Dogra prepared rukka and sent the same to police station for registration of FIR through Ct. Neeraj/PW-12. Ct. Neeraj came back along with copy of FIR and rukka and S.I. Rakesh Kumar/PW-16 was assigned further investigation of this case, who also came on the spot. PW-6 gave necessary instructions to the IO and other members of the team and thereafter, he left the spot. He had sent information through wireless message to SSP, Aligarh and SSP Gautam Budh Nagar regarding arrest of these accused persons. In his cross-examination, he deposed that he had come back to the PS at about 07.00 PM and no other police official had accompanied him from the spot. He had come back on his official vehicle being driven by driver, who was not member of the proceedings. IO had deposited case property in malkhana in his presence and the case properties were deposited, as per seizure memos. The FSL form was also filled up, later on. He had no knowledge about the driver of the private vehicle or about the person, who had hired that private vehicle. S.I. Rajesh Dogra, Ct. Sohanvir, Ct.
(Pulastya Pramachala)
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Vinod, H.C. Sompal and secret informer were present in his vehicle. He admitted that the log-book of the vehicle used by SHO is maintained and same is checked by SHO. He also admitted that time during which, vehicle remains in a particular area is required to be mentioned in the log-book. He further deposed that he had recommended the application for sanction under Section 195 Cr.P.C. and under Section 39 of Arms Act. He further deposed that the departure entry was made by duty officer in his presence and the DD was handed over to him. He did not ask any person present outside the police station to join the raiding team. He further deposed that efforts were made to join the public persons on the road and SI Rajesh Dogra had asked the public persons to join this raid. However, no one was given any written notice for their refusal to join the raid. He further deposed that all recovered weapons were seized prior to sending the rukka and IO was preparing rukka, when crime team had reached the spot. The weapons were sealed before sending the rukka. Crime team had tried to lift chance finger prints, but no chance finger prints could be taken and IO had collected the report of crime team in this regard, on the same day on the spot itself. Crime team remained at the spot for about 1-1½ hour. He further deposed that he had warned accused persons from a distance of about 30-40 meters and other police officials were also present with same distance from the accused persons. They had not offered their personal search. He further deposed that secret informer had already left the spot, before raid was conducted by them. He was suggested that accused Abhishek, Jitender, Abodh and Sushil had come to Delhi to conceal themselves from U.P. Police, because their (Pulastya Pramachala) Page no. 14 of 39 ASJ (Shahdara) Karkardooma Courts / Delhi FIR No.131/06 PS : Khajuri Khas name was involved in the murder case of District-Aligarh and on 23.03.2006, they had gone to make a call at PCO situated in their jurisdiction and PCO owner out of suspicion informed the police and thereafter, two police officials had apprehended them and falsely implicated them in this case. PW-6 denied correctness of such suggestion. PW-6 had identified all accused persons, except accused Abodh, who was absent and whose identity was not in dispute.
16. Other witnesses, who were also part of this police raid deposed almost on the similar lines. Apart from general facts, they further testified in respect of particular accused person, who was apprehended by them and was personally searched in their presence.
17.As per testimony of PW-7/H.C. Sompal Singh, he along with S.I. Rajesh Dogra apprehended accused Jitender @ Jitu. Accused Jitender @ Jitu had fired upon the police party with a country made pistol and he was found in possession of such pistol containing a fired cartridge. Two live cartridges were also recovered from his pant. The sketch of that country made pistol and live cartridges Ex.PW7/A, was prepared by S.I Rajesh Dogra in his presence, which was signed by him. S.I. Rajesh seized the same vide a seizure memo Ex.PW7/B, which was also signed by him. S.I. Rajesh Dogra had kept the pistol in the plastic jar and had sealed it with the seal of MSS. 2 nd IO/S.I. Rakesh had arrested accused Jitender @ Jitu vide arrest memo Ex.PW7/D and had also conducted his personal search vide memo Ex.PW7/E, in the presence of this witness, who had signed these memos. He had identified all accused persons, except accused Abodh, who was absent and whose identity was not in dispute. The pistol and cartridges, (Pulastya Pramachala) Page no. 15 of 39 ASJ (Shahdara) Karkardooma Courts / Delhi FIR No.131/06 PS : Khajuri Khas recovered from accused Jitender @ Jitu were also identified by him.
18. PW-8/Ct. Sanjay Kumar with the help of PW-15/Ct. Nathu Ram had apprehended accused Sharif. They recovered a button-operated knife from the possession of accused Sharif. S.I. Rajesh Dogra had prepared sketch, seizure memo of the knife in his presence. S.I. Rakesh/2nd IO arrested accused Sharif and prepared his arrest memo as well as personal search memo in his presence, which were signed by him. He also identified all accused persons, except accused Abodh, who was absent and whose identity was not in dispute. He also identified the knife.
19. PW-10/H.C. Umesh Kumar had apprehended accused Sunil @ Sushil with the help of PW-14/Ct. Khem Chand. He recovered a button- operated knife from the possession of accused Sushil. 2 nd IO arrested accused Sushil and prepared his arrest memo as well as personal search memo in his presence, which were signed by him. He also identified all accused persons, except accused Abodh, who was absent and whose identity was not in dispute. He identified the knife as well.
20.PW-11/H.C. Sohanvir was in civil dress. When one of the accused had fired upon police party, then he along with PW-17/Ct. Vinod returned fire upon the accused persons, though no one was injured. He had chased and over-powered accused Lalu Khan. Nothing was recovered from possession of accused Lalu Khan. Lalu Khan was arrested by 2 nd IO/S.I. Rakesh, who prepared his arrest memo as well as personal search memo in his presence, which were signed by him. He also identified all accused persons, except accused Abodh, who was absent and whose identity was not in dispute.
(Pulastya Pramachala)
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21.PW-12/H.Ct. Neeraj Kumar had apprehended accused Abodh Sharma and he recovered alleged country-made pistol from the possession of accused Abodh Sharma apart from two more live cartridges from the pocket of Abodh Sharma. The sketch of pistol and cartridges were prepared in his presence. Same were sealed and seized in his presence. Accused Abodh Sharma was arrested and his arrest memo and personal search memo were also prepared in his presence and all these memos bear his signature. This witness identified accused Abodh, though initially he had taken wrong name, but he had immediately corrected himself to tell correct name of accused Abodh Sharma. He had also correctly identified remaining accused persons, with reference to their correct names. Accused Sushil was not present and his identity was not in dispute.
22.PW-14/Ct. Khem Chand had apprehended accused Sandeep @ Sushil with the help of PW-10/H.C. Umesh Kumar. One button-operated knife was recovered from the possession of accused Sushil in his presence and SI Rajesh Dogra had prepared sketch of the same in his presence. The knife was sealed and seized in his presence and he had signed all relevant memos in this respect. This accused was arrested and personally searched in his presence and those memos were also signed by him. He identified accused Sushil correctly.
23.PW-15/H.C. Nathu Ram had apprehended accused Sharif along with PW-8/Ct. Sanjay Kumar. He had also witnessed recovery of knife and preparation of sketch as well as seizure memo of that knife. He had also witnessed arrest of accused and preparation of relevant memos.
24. PW-17/Ct. Vinod Kumar had fired in retaliation to fire from the side of (Pulastya Pramachala) Page no. 17 of 39 ASJ (Shahdara) Karkardooma Courts / Delhi FIR No.131/06 PS : Khajuri Khas accused persons. He had apprehended accused Abhishek and had taken his personal search. He recovered a revolver from the possession of accused Abhishek. S.I. Rajesh Dogra had prepared sketch, seizure memo of this revolver in his presence. He had also witnessed arrest and personal search of this accused by 2nd IO and had signed relevant memos.
25.PW-18/Inspector Rajesh Dogra had apprehended accused Jitender @ Jitu along with PW-7/H.Ct. Sompal. He had prepared sketch of all the weapons, which were recovered from all the accused persons. He had also prepared pullanda of all the weapons and had sealed them with the seal of MSS. Thereafter, he had seized them by preparing separate seizure memos. He also prepared rukka, which was sent through Ct. Neeraj and thereafter, he handed over custody of all accused persons along with case properties and relevant memos to subsequent IO/PW-16 S.I. Rakesh Kumar. PW-16 prepared site plan at his instructions, which was proved by PW-16 vide Ex.PW16/A and he had signed that site plan. He also identified all accused persons, except accused Abodh, who was absent and whose identity was not in dispute.
26.PW-18/Inspector Rajesh Dogra was one of the most important witnesses of the prosecution, because he was acting like first IO and had prepared all the sketches, seizure memos as well as rukka. In his cross-examination, he deposed that there were two-three vehicles including Govt. vehicle, which were used to reach the spot by the police team. Thereafter, he modified his statement that there was one police Gypsy and one private vehicle. He could not remember, who had (Pulastya Pramachala) Page no. 18 of 39 ASJ (Shahdara) Karkardooma Courts / Delhi FIR No.131/06 PS : Khajuri Khas boarded, which particular vehicle. He further deposed that he could not trace the fired bullet on the spot, which was fired by the accused and he had used seal of MSS after taking the same from SHO, as this seal belonged to SHO. He had handed over this seal after use to Ct. Vinod. He further deposed that distance between accused Jitender and police team was 10-20 steps, when accused Jitender fired towards them.
27.Defence counsels attacked testimony of aforesaid witnesses, so as to challenge the credibility and reliability of the same. A common argument of defence counsels was that no public witness was joined in the police proceedings, though, such witnesses were available near and around the spot. The omission on the part of police to join any public witness shows that all the proceedings were conducted in the PS and alleged incident had not taken place at all. Defence counsels relied upon judgment passed in Ram Jatan & Ors. v. State {VII 1995 (3) Crimes 58 All.}. In this case, Allahabad High Court did not rely upon the recovery proceedings conducted by police on account of omission to make any effort to join public persons. However, even in this case, the Court observed that conviction can be based on the sole testimony of the police officers, if they are reliable and worthy of credence. But the Court did not rely upon the recovery proceedings in that case, because it was found that no effort was made at all by the police officers to join public witnesses, despite having sufficient time in hand.
28.Per contra, ld. Addl. PP submitted that the prosecution witnesses gave explanation regarding non-joining of public witnesses. The public witnesses were not ready to join the investigation, though, they were asked by PW-18.
(Pulastya Pramachala)
Page no. 19 of 39 ASJ (Shahdara)
Karkardooma Courts / Delhi
FIR No.131/06 PS : Khajuri Khas
29.In the present case, PW-6 and PW-18 were acting on the fore-front of the police team. PW-18 made request to certain passersby to join the proceedings, but none obliged. This fact was deposed by all other members of this police team. Therefore, it cannot be said that police did not make any attempt to join the public witnesses. Furthermore, the tendency of public person cannot be ignored by the Court and it is a recognized tendency of public that on account of their apprehension to be harassed either by the accused persons or in attending the Court proceedings, they remain reluctant to join any such proceedings, so as to become a witness. Another important aspect is that this was a police raid against some suspected criminals involving threat to personal safety as well, therefore, it cannot be advisable for the police to insist for joining the proceedings by any public person. The test of credibility of this alleged proceeding, therefore, cannot be done on the basis of mere fact that public person was not joined in the proceedings. Therefore, I do not find any significance of this argument.
30. Another argument was forwarded that prosecution did not produce Inspector B.P. Sharma as witness, though he was also member of the alleged raiding party. Ld. Addl. PP submitted that Inspector B.P. Sharma was not produced, because entire investigation was conducted by PW-18/SI Rajesh Dogra and it would have been merely a repetition of the fact on the part of Inspector B.P. Sharma.
31. I am in agreement with the contention of ld. Addl. PP that Inspector B.P. Sharma was not such an important witness that in his absence, the case of prosecution can become liable for rejection. Inspector. B.P. Sharma was though, the member of police raiding team, but no such (Pulastya Pramachala) Page no. 20 of 39 ASJ (Shahdara) Karkardooma Courts / Delhi FIR No.131/06 PS : Khajuri Khas proceeding was conducted by him exclusively, for which his production as witness could have been indispensable. It is not the number of witnesses, which decides the fate of a case, rather it is quality of witness, which is important. Therefore, non-production of Inspector B.P. Sharma as witness is insignificant.
32.Testimony of PW-6 and PW-12 were referred by defence counsels to submit that they had given contradictory statement regarding hiring of the private vehicle. They further argued that none of the witnesses could tell the number of such private vehicle or colour of the private vehicle. On the other hand, ld. Addl. PP took plea that the testimony of all material witnesses are consistent with each other and the minor contradictions do not make any difference.
33. It is true that PW-6 had shown ignorance about the person, who had hired a private vehicle and on the other hand, PW-12 had deposed that the private Maruti Van was arranged by the SHO/PW-6. PW-18/S.I. Rajesh Dogra deposed that the private vehicles were arranged by the staff, but he did not know as to who had arranged the same. The description of private vehicle was mentioned by PW-12 as Maruti Van. PW-10 had also deposed that it was a Maruti Van of white colour. However, none was able to tell the registration number of this vehicle. In this respect, it is relevant to refer to the contents of DD No.5-A, vide which a departure entry was made for the purpose of this raid. A private vehicle and government vehicle were mentioned in this DD entry, which were used by the police team to reach the destination of raid. The registration number of this private vehicle is not very important fact, which was required to be proved. It is also not very important fact to (Pulastya Pramachala) Page no. 21 of 39 ASJ (Shahdara) Karkardooma Courts / Delhi FIR No.131/06 PS : Khajuri Khas know that who had arranged this private vehicle. It is sufficient to note that apart from an official vehicle, one another vehicle was also used, which was a private vehicle. Use of another vehicle is necessary and relevant to be shown, so as to establish the probability of whole police team reaching the destination of raid one after other, without much gap. It was not expected from the police officials to minutely notice the number of that private vehicle and to remember the same till the time, they came before the Court to depose about this case. The contradiction appearing in the testimony of PW-6 and PW-12 is also a minor contradiction, which can be attributed to the fact that many times a witness applies his presumption to depose about a fact. Possibly PW-12 had assumed that the private vehicle would have been arranged by the SHO, being the senior most officer and therefore, he deposed that it was arranged by SHO. Therefore, I do not find this contradiction to be very material, so as to affect the credibility of the prosecution witnesses.
34. Similarly, PW-18 deposed that there were two-three vehicles including official vehicle, which were used to reach the spot. However, all other members of the police team mentioned only about official vehicle as well as a private vehicle. From the testimony of PW-18, it is apparent that he was not very sure about the exact number of vehicles. He was not able to recollect such facts, when he was being examined in the Court on 13.11.2014 i.e. after around more than 8½ years of the alleged raid. In my opinion, he cannot be faulted for not being able to recollect all minute facts regarding this raid. If PW-18 was not able to specify the officials, who used official vehicle and private vehicle, no (Pulastya Pramachala) Page no. 22 of 39 ASJ (Shahdara) Karkardooma Courts / Delhi FIR No.131/06 PS : Khajuri Khas question can be raised against credibility of this witness on the basis of such omission.
35. Similarly, PW-6 Inspector M.S. Shekhawat was grilled about the log-
book of his official vehicle. PW-6 admitted that movement of SHO is mentioned in the log-book and at the same time, he deposed that it is maintained by the driver. All such facts regarding the requirements out of police rules were asked from this witness, but he was not asked to produce the log book, by the defence counsels. PW-6 and other PWs, who were member of raiding team, deposed that they had gone to place of incident in official Gypsy and if defence wanted to disprove this fact, then the defence could have demanded production of the log book of official vehicle of PW-6. They did not do so. Therefore, an objection being raised during arguments, regarding non-production of the log book, so as to challenge the credibility of case of prosecution, cannot be sustained.
36. Defence took another plea that site plan prepared by IO does not bear the name of accused Jitender and therefore, it is established that Jitender was not arrested from the spot and he was later on, falsely implicated in this case. On the other hand, ld. Addl.PP submitted that name of accused Jitender was taken by the material witnesses as the person, who fired upon police team and it was not necessary that signatures of all accused persons would have been taken on the site plan.
37.I am unable to accept the argument of defence in this respect because the site plan i.e. PW16/A mentions that accused Pramod @ Jitu was arrested at point 'G', as shown in the site plan. Hence, this argument of (Pulastya Pramachala) Page no. 23 of 39 ASJ (Shahdara) Karkardooma Courts / Delhi FIR No.131/06 PS : Khajuri Khas defence is ill conceived and against the record. It is also relevant to mention here that prosecution has clarified in the charge-sheet itself that accused Jitender @ Jitu and Sushil Pandit had initially disclosed their wrong name as Pramod and Sunil respectively. The name of accused Jitender was referred as Pramod @ Jitu and same appears in the site plan. Therefore, this argument is also liable to be rejected.
38. The defence took another plea that prosecution failed to prove any motive, for which this raiding party was created. The counsels also argued that prosecution did not produce any document on the record, to show the criminal antecedents of the accused persons.
39. In respect of this argument, it has to be seen that this police raiding party was constituted on the basis of secret information that the suspects of murder of Ex.MLA Sh. Malkhan Singh were supposed to assemble at a particular place. The police team was to be constituted immediately, without wasting any time, because if the information was correct, then the criminals would not have waited for any one. When the police team raided the informed place and were confirmed about presence of those suspects, they asked the accused persons to surrender. They could have verified the information regarding accused persons, only after having them in their custody or at the cost of their disappearance. If the alleged incident of firing etc. would not have taken place, then on the basis of confirmation of secret information, Delhi Police could have opted for further course of action, which could be to hand over the custody of all accused persons to UP police, if they would have come immediately. They could have arrested accused persons under Section 41 (1) Cr.P.C. and produced them before the (Pulastya Pramachala) Page no. 24 of 39 ASJ (Shahdara) Karkardooma Courts / Delhi FIR No.131/06 PS : Khajuri Khas Metropolitan Magistrate giving reasons for their detention. There was no motive for Delhi Police to register a separate case, on the basis of artificial facts against the accused persons. Though, there was a purpose to prepare a raiding party and to conduct the raid.
40. Now the next question is that was is necessary for IO of this case to establish criminal antecedents of the accused persons? To my mind, in the present case, it was not so required, because this case was not based on alleged criminal antecedents of the accused persons. Rather it was based on the alleged criminal activity of the accused persons, giving rise to several offences within jurisdiction of PS-Khajuri Khas. Had it been a proceeding under D.P. Act, seeking externment of the accused persons, then the record of criminal antecedents of the accused persons would have been a relevant piece of evidence. However, it was not so required in this case. Therefore, I do not find any merit in such arguments.
41. Defence also took objection that prosecution did not prove DD No. 8-A dated 23.03.2006, WT message given in respect of arrest of accused persons to SSP, Gautam Budh Nagar. However, I find that defence has failed to explain that why these documents were required to be proved in this case and what was their connection with the alleged offences. I do not find any relevance of these documents, for the purpose of proving the alleged offences against the accused persons. Therefore, I do not find any merit in this argument as well.
42. Another argument was taken by defence that if investigation of a case was initially worked out by SHO and subsequently a subordinate officer was enstrusted further investigation, then the investigation could not be (Pulastya Pramachala) Page no. 25 of 39 ASJ (Shahdara) Karkardooma Courts / Delhi FIR No.131/06 PS : Khajuri Khas fair. Defence relied upon Ram Jatan & Ors. v. State {VII 1995 (3) Crimes 58 All.}. In the case of Ram Jatan, Allahabad High Court referred to another judgment passed by same Court in Raghuvir & Ors. v. State of U.P. {1995 U.P. Criminal Rulings 57}, to reiterate the observations that being a subordinate, the IO was not in a position to come to an independent finding and such an investigation could be treated as tainted and no reliance could be placed upon it. The Court referred to further observations that investigation regarding acts of senior officer should not be done by junior officer and treated such an instance as glaring mistake and lacuna in the case of prosecution.
43. It is sufficient to say that such observations made by the Court in aforesaid case were based on the appreciation of evidence of that particular case, which did not inspire confidence in the Court. Every case is based on its peculiar facts and evidence of all the cases are not same. Therefore, a particular observations made in a case cannot be blindly followed in all the cases. The case in hand is not a case, wherein SHO had worked out a particular offence. The SHO was member of a raiding team, but the initial IO/complainant was S.I. Rajesh Dogra. In the case dealt with by the Court in Ram Jatan's case (supra), the police had information about assembly of some persons of the gang of Charan Singh with illegal arms and ammunition, for the purpose of committing robbery and the case was registered under Section 399/402 IPC. Present is the case, wherein the accused persons could have been detained without registration of any case as they were only informed to be suspects and the final report was to be given by UP Police. Therefore, PW-6/SHO was not solving any (Pulastya Pramachala) Page no. 26 of 39 ASJ (Shahdara) Karkardooma Courts / Delhi FIR No.131/06 PS : Khajuri Khas particular case. In these circumstances, the entrustment of further investigation to PW-16 cannot be faulted with nor can this fact become a ground to reject the case of prosecution. Therefore, I do not find aforesaid argument of defence to be making any difference on the decision of this case.
44. Another objection of defence is that the crime team report proved by PW-4 was undated. Though, such objection was taken in the argument, but PW-4 was not cross-examined on this aspect, so as to seek any explanation from him or to impute any particular motive upon him, to omit to mention the date. PW-4 deposed that on 23.03.2006, he visited Yamuna Khadar in front of Vishal Vatika, where PW-18 met him along with staff. He inspected the spot and got the place photographed, through Ct. Sushil/PW-3 and thereafter, he prepared the report and handed over the same to the IO. Same fact was deposed by PW-6 as well. Other members of the team also deposed that crime team officials had come there and they had taken photographs. PW-18 also corroborated this fact with consistent testimony that crime team inspected the spot. In these circumstances, this argument is found to be insignificant.
45. Defence pointed out to different number of Thokar in the testimony of PWs, to challenge their reliability. There is mention of Thokar no. 7 and 8 in the testimony of PW-6 and PW-17. The different Thokar number as appearing in the statement of PW-17 from the description of Thokar no. given by other witnesses, is not a significant discrepancy, so as to be given much attention. It is worth to mention that other particulars that the accused persons were found sitting under a Peepal tree as given (Pulastya Pramachala) Page no. 27 of 39 ASJ (Shahdara) Karkardooma Courts / Delhi FIR No.131/06 PS : Khajuri Khas by PW-17 and that he informed SHO about the same and thereafter, police team surrounded the accused persons, are deposed in the same manner as deposed by other PWs. DD No. 5-A did not mention any particular thokar no. and absence of thokar no. in this DD also does not make any difference.
46. I do not find any merit in another argument of defence that the photographs proved by PW-3 did not bear any date nor did they mention the place. It is not so possible to have any date or description of place to appear in a photograph. The photographs show the weapons recovered by police team at Yamuna Khadar. They reflect the place of incident without showing any accused person. The reasons for not taking photographs of the accused persons was mentioned by PW-4/In-charge Crime Team in his report Ex.PW4/A. As per this reason, due to possible requirement of TIP etc., the photographs of accused persons were not taken by the photographer.
47. Another argument was made that the weapon of offence brought before the Court did not match with the weapons shown in the photographs. However, I find such arguments to be unsupported with any material. Such objection could have been taken by the defence counsels during production of case properties before the Court, during examination of PW-7 onwards. By that time, PW-3 had already proved the photographs on the record, but none of the accused persons took this plea during production of weapons before the Court to say that they were different from the one shown in the photographs Ex.PW3/P1 to P7. Hence, on the face of it, I find this argument to be like mere shooting in the dark.
(Pulastya Pramachala)
Page no. 28 of 39 ASJ (Shahdara)
Karkardooma Courts / Delhi
FIR No.131/06 PS : Khajuri Khas
48. Thus, on perusal of testimony of all members of raiding team and their appreciation on the basis of objections raised by defence counsels, I do not find any material contradiction or discrepancy regarding the material facts. All members of the raiding team gave consistent account of raid and I do not find any reason to disbelieve the same. In these circumstances, I find that it is well established on the record that all accused persons had assembled under a Peepal tree, near thokar no. 8, Vishal Vatika, Sonia Vihar, Delhi.
49. Now, I shall deal with the next question that whether accused Jitender had fired upon police team? In respect of this fact, PW-7/HC Sompal deposed that accused Jitender had fired upon the police team with a deshi katta. It was PW-7, who was apprehended accused Jitender with the help of PW-18/ Inspector Rajesh Dogra. PW-18 also deposed that he with the help of PW-7 had apprehended accused Jitender @ Jeetu, who had fired towards police team. Other members of the police team had not taken name of accused Jitender and they had deposed that one of the accused fired towards police team and in retaliation Ct. Vinod and Ct. Sohanpal also fired with their service revolvers. The accused persons had started running in different directions but they were apprehended by the police team.
50.The counsel for accused Jitender argued that none of the members of the raiding party disclosed the name of the person, who had fired upon the police party. Therefore, prosecution failed to prove with certainty that accused Jitender had fired upon the police party.
51. On the other hand, Ld. Addl. PP submitted that the witnesses who had apprehended this accused, had mentioned his name in their testimony, (Pulastya Pramachala) Page no. 29 of 39 ASJ (Shahdara) Karkardooma Courts / Delhi FIR No.131/06 PS : Khajuri Khas to be the person who had fired upon the police team.
52.From the perusal of testimony of all members of the police team, it is shown that one of the accused persons had fired towards the police team. It has also appeared in their testimony that the accused persons had started running in different directions and different members of the police team apprehended different accused persons. The testimonies also show that after firing on the police team and firing by PW-11 and PW-17 in retaliation, different members of the police team chased different accused persons. The site plan Ex.PW16/A further shows that all six accused persons were apprehended from different points in that area. Apparently, different members of the police team concentrated on a particular target, in order to chase him and to apprehend him. Thus, it was not unnatural for remaining members of the police team for not pin pointing to accused Jitender as the person who fired towards police team. PW-7 and PW-18 had apprehended accused Jitender, which means that they concentrated on him and therefore they were able to pin point to him as the person who fired upon police team. Therefore, I do not find any discrepancy in the testimony of PWs regarding role of accused Jitender. The role of accused Jitender as the person who fired upon police team, is further corroborated with the proved fact that the country made pistol recovered from his possession was found with a fired cartridge. This fact further proves that it was accused Jitender who had fired upon the police team, because the country made pistol and revolver recovered from co-accused Abhishek and Abodh Sharma were not found with the fired cartridge. It is also to be appreciated that accused Jitender could not have opportunity to drop the fired cartridge (Pulastya Pramachala) Page no. 30 of 39 ASJ (Shahdara) Karkardooma Courts / Delhi FIR No.131/06 PS : Khajuri Khas from his pistol, because immediately after fire he had to run in order to escape. All such facts prove that accused Jitender had fired upon the police team.
53. Defence Counsel also argued that fired bullets were not recovered by the IO from the spot, which means that no incident of firing had taken place.
54. In this respect, PW-18 deposed that he could not find the fired bullet, which was fired by the accused. The photographs Ex.PW-3/P1 to P7 show that the said area was open land with bushes and grass around the place of incident. Therefore, it is not improbable that PW-18 could not find the fired bullets on the ground. In these circumstances, omission to find the fired bullets from the spot does not discredit the case of the prosecution. Hence, this plea of defence also does not wash away the proven facts against accused Jitender.
55. The next question arises for determination is that whether all accused persons had formed a common intention to fire upon the police officials?
56. From the testimony of members of police team, it is shown that the accused persons were not aware about the police action being taken, so as to apprehend them. Police team had acted secretly on the basis of a secret information and therefore, accused persons could not have known about the police action. In that situation, there was no occasion for the accused persons to form a common intention to fire upon the police team, nor was there any opportunity for the accused persons to pre-plan firing upon the police team. It is borne out of the case of prosecution itself that the accused persons would have been taken (Pulastya Pramachala) Page no. 31 of 39 ASJ (Shahdara) Karkardooma Courts / Delhi FIR No.131/06 PS : Khajuri Khas aback by arrival of police team on the spot and therefore, there cannot be a question of forming a common intention, to attack upon the police team or to obstruct the police team in discharge of their official duty or to assault or use criminal force on the members of the police team. Therefore, such allegations of the prosecution are found to be devoid of merit and it is held that there was no common intention shared by all accused persons either to fire or to obstruct the police-officials.
57.Now, the next question would be that whether accused Jitender fired upon the police team with an intention to cause death or with knowledge that with the firing upon police team he would cause death?
58. The defence counsel challenged the charge of 307 IPC on the grounds of absence of required intention or knowledge and referred to a case law cited as Parsuram Pandey and Ors. v. State of Bihar, {2004 IV AD(SC) 281}. In this case, Supreme Court referred to the ingredients of 307 by making following observations :
"To constitute an offence under Section 307 two ingredients of the offence must be present:-
(a) an intention of or knowledge relating to commission of murder; and
(b) the doing of an act towards it.
Section clearly contemplates an act which is done with intention of causing death but which fails to bring about the intended consequence on account of intervening circumstances. The intention or knowledge of the accused must be such as is necessary to constitute murder. In the absence of (Pulastya Pramachala) Page no. 32 of 39 ASJ (Shahdara) Karkardooma Courts / Delhi FIR No.131/06 PS : Khajuri Khas intention or knowledge which is the necessary ingredient of Section 307, there can be no offence of attempt to murder."
59. In the present case, PWs deposed that when accused persons were asked to surrender by PW-6, one of them fired towards police team. Thereafter, all accused persons started running here and there. Such scenario shows that accused Jitender fired towards police team not with the intention to kill anyone, but probably to deter them from approaching the accused persons. None of the PWs deposed that accused Jitender had taken an aim towards a particular official and fired towards him so as to kill him. Therefore, I am in agreement with the argument of defence that Section 307 IPC cannot be invoked against accused persons including accused Jitender.
60.An argument was made by defence counsels that none of the police witnesses said anything about obstruction in their duties and that prosecution failed to prove DD No.5A so as to establish that police officials were on official duty.
61. As far as DD No.5A is concerned, same was proved by PW-2 by producing the original DD register and placing the copy of the relevant page on the record. Same was proved as PW2/B. This DD entry mentions the information given by Ct. Vinod with secret informer to SHO, regarding presence of suspects of murder of MLA Malkhan Singh at Sonia Vihar Pusta, Near Vishal Vatika. It further mentions that SHO constituted a police raiding team and proceeded to the informed place in official and private vehicle, alongwith the secret informer. This DD entry coupled with the testimonies of PWs leave no doubt that the (Pulastya Pramachala) Page no. 33 of 39 ASJ (Shahdara) Karkardooma Courts / Delhi FIR No.131/06 PS : Khajuri Khas members of police team were discharging their official duty at the spot. In that situation, it was not required for the witnesses to specifically mention that they were performing their duty or that they were obstructed in performance of their duty. The court has to raise inference from the evidence on the record, so as to see that whether there was an obstruction created by accused Jitender or others in performance of duty of the police witnesses.
62.Defence came up with another argument that offence under Section 186 IPC is a non-cognizable offence, therefore, police had no power to investigate this case without orders of ld. MM. For such reason, the chargesheet filed by the IO was bad in the eyes of law. Reference was made to Vasudev v. State, 1984 (2) Crimes 599, wherein Delhi High Court struck down a chargesheet filed for offence under Section 186 IPC, on the grounds that investigation done by IO without specific permission from the Magistrate and filing the challan was illegal. The court also took view that while taking cognizance, the trial court referred only to the challan and issued summons to the accused, which was also bad in the eyes of law because the cognizance could have been taken only on the complaint under Section 195 Cr.P.C, which should have been addressed to the court concerned.
63. As far as the first contention regarding absence of power to investigate the case for offence under Section 186 IPC, is concerned, I find that such argument is based on appreciation of half hearted facts. It is true that as per Section 155 sub clause 2 Cr.P.C., IO cannot investigate a non-cognizable offence without the orders of a Magistrate having power to try such case or to commit such case for trial. However, sub (Pulastya Pramachala) Page no. 34 of 39 ASJ (Shahdara) Karkardooma Courts / Delhi FIR No.131/06 PS : Khajuri Khas clause 4 of the same Section provides that when a case relates to two or more offences, of which at least one is cognizable, the case shall be deemed to be a cognizable case, notwithstanding that the other offences are non-cognizable. Section 156 (1) Cr.P.C. empowers SHO to investigate any cognizable case without an order of Magistrate. Thus, the cumulative effect of provisions under Section 155 (4) and Section 156 (1) Cr.P.C is that when a case relates to more than one offence and at least one of the offences is cognizable, then such case is to be treated as cognizable case and SHO becomes empowered to investigate into that case without the order of a Magistrate. The present case was not only about offence under Section 186 IPC. The FIR was registered for various offences i.e. 186/353/307/34 IPC and 25/27 Arms Act. All other offences except Section 186 IPC were cognizable offences. Therefore, there was no illegality committed by SHO/IO to investigate this case.
64. As far as second part of the argument is concerned, from the perusal of the record I find that the IO filed chargesheet in the case along with a complaint given under Section 195 Cr.P.C. The chargesheet was filed before ld. MM on 19.05.2006 and all accused persons were produced from J/C. The IO had mentioned in the chargesheet that permission under Section 195 Cr.P.C was obtained and same was filed along with the chargesheet. In fact, the complaint was so filed along with the chargesheet itself. The complaint was made in the name of concerned ld. MM i.e. Dr. Shahbuddin, the then ld. MM, Karkardooma Courts by Sh. Rajeev Ranjan (PW-1)/the then Addl. DCP (North East). The use of term 'permission under Section 195 Cr.P.C.' is not to be given much (Pulastya Pramachala) Page no. 35 of 39 ASJ (Shahdara) Karkardooma Courts / Delhi FIR No.131/06 PS : Khajuri Khas importance, especially in view of the fact that the complaint filed with the chargesheet was in the form of a complaint and it was filed as complaint under Section 195 Cr.P.C. Thus, it cannot be said that this complaint was filed like any other document and in a different form than a complaint, without mentioning the name of the court. Unlike the observations made by High Court in the case of Vasudev, this complaint was addressed to the court.
65. The then ld. MM did not pass the order in specific terms to say that he was taking cognizance of the offences. The relevant order reads as follows :-
"Present : Ld. APP for the State.
All the accused present from J/C. A new chargesheet filed today in this matter. Be checked and registered.
Now to come up for supply of copies on 02/06/06. All the accused are remanded to J/C till next date."
66. The expression 'taking cognizance' means an application of judicial mind to the offences alleged. Such process signifies that the Magistrate takes notice of the police report and annexed material including any complaint and decides to proceed further against the accused. The process of taking cognizance is to be inferred from the proceedings conducted by ld. MM, rather than words used in the ordersheet. If the Magistrate proceeds further against the accused persons, then the cognizance is deemed to have been taken by him. Only because a formal order of taking cognizance was not passed, it cannot be said (Pulastya Pramachala) Page no. 36 of 39 ASJ (Shahdara) Karkardooma Courts / Delhi FIR No.131/06 PS : Khajuri Khas that the Magistrate did not take cognizance of the offences against the accused persons. Therefore, it has to be assumed that while posting the case for committal proceedings, ld. MM had taken cognizance of all the offences including offence under Section 186 IPC, against all the accused persons. There was no legal bar for ld. MM to take cognizance of offence under Section 186 IPC because the complaint under Section 195 Cr.P.C. was also filed along with the chargesheet. Hence, I do not find any merit in the arguments of the defence against the cognizance of offence under Section 186 IPC.
67.Accused Jitender had fired towards police team which constitutes criminal assault. He did so to obstruct the police team from discharging their official duty i.e. to apprehend the accused persons. The act of Jitender to fire upon the police team, amounted to obstruct the police officials in discharge of their official duty, with assault. The definition of assault as provided in Section 351 IPC would include any gesture to cause any person to apprehend that the maker of gesture is about to use criminal force to that person. The firing upon police team constituted making such gesture with intention to stop movement of the police team. Hence, the act of Jitender would be covered within mischief of Section 186 and Section 353 IPC.
68. However, other accused persons did not make any such gesture nor did they use any criminal force against the police team. They merely tried to escape. Such act on their part can neither be covered under Section 186 nor under Section 353 IPC.
69. The next question relates to culpability of accused persons for the respective charges framed against them under Arms Act. Accused (Pulastya Pramachala) Page no. 37 of 39 ASJ (Shahdara) Karkardooma Courts / Delhi FIR No.131/06 PS : Khajuri Khas Abhishek, Jitender and Abodh Sharma were charged for offence under Section 25 Arms Act, on the allegations that they were found in possession of country made pistol and revolver and live cartridges.
70.There is additional charge against Jitender under Section 27 Arms Act, on the allegation that he used fire arm without having any license. I have already concluded that Jitender had fired from his country-made pistol. Jitender did not prove that he was having a license to carry and use that pistol. Therefore, inevitable conclusion is that he is guilty under Section 27 Arms Act.
71.However, as rightly argued by defence counsel, such charges against them cannot be sustained for want of sanction under Section 39 Arms Act. PW-1 had merely proved his complaint given under Section 195 Cr.P.C. The required sanction under Section 39 Arms Act was not proved by the prosecution. In fact such sanction is not even found placed on the record. Therefore, these accused persons cannot be held liable for offence under Section 25 Arms Act.
72.But, the similar charge against accused Sharif and Sushil Pandit, did not require any sanction. They were found in possession of button operated knives, in contravention to the notification issued by Delhi Administration dated 17.02.1978 bearing No.F-13/203/78/home. Therefore, this charge is duly proved against both these accused persons.
CONCLUSION :-
73.In view of my foregoing discussions and observations, accused Jitender @ Jitu is convicted for offence punishable under Section 186/353 IPC and under Section 27 of Arms Act.
(Pulastya Pramachala)
Page no. 38 of 39 ASJ (Shahdara)
Karkardooma Courts / Delhi
FIR No.131/06 PS : Khajuri Khas
74. Accused Sharif and Sushil Pandit @ Gatura are convicted for offence punishable under Section 25 of Arms Act.
75.All accused persons are acquitted of the charges under Section 307/34 IPC.
76.Accused Abodh, Abhishek and Jitender @ Jitu are acquitted of the charges under Section 25 of Arms Act.
77.Accused Abodh, Abhishek, Sharif, Sushil Pandit and Lallu Khan are acquitted of the charges under Section 186/353 read with 34 IPC.
Announced in the open court (PULASTYA PRAMACHALA)
today on 11.05.2015 Additional Sessions Judge (Shahdara),
(This judgment contains 39 pages) Karkardooma Courts, Delhi
(Pulastya Pramachala)
Page no. 39 of 39 ASJ (Shahdara)
Karkardooma Courts / Delhi