Delhi District Court
State vs 1 Jagjit Singh @ Jaggu on 29 January, 2010
1
IN THE COURT OF SHRI S.P.GARG
DISTRICT JUDGEIV/ASJ,NEW DELHI
(1)
S.C.No. 143/05
State Vs 1 Jagjit Singh @ Jaggu
S/o Surender Singh
R/o 34, Chander Vihar
New Delhi
........... (A1)
2 Arvind Singh @ Babal
S/o Gurmeet Singh
R/o A97, Chander Vihar
New Delhi
.............(A2)
3 Amit Kapoor @ Amit Kumar
@ Punjabi
S/o Satish Kumar
R/o 64, Subh Vihar
Parvana Road,
New Delhi
............(A3)
FIR No. 441/2003
U/S 379/411/468/471/34 IPC
PS: Sarojini Nagar
2
Date of institution of the case : 03.2.2005
Date when reserved for orders : 16.1.2010
Date of announcement of judgment: 29.1.2010
(2)
S.C.No. 117/05
State Vs 1 Jagjit Singh @ Jaggu
S/o Surender Singh
R/o 34, Chander Vihar
New Delhi
........ (A1)
2 Arvind Singh @ Babal
S/o Gurmeet Singh
R/o A97, Chander Vihar
New Delhi
...........(A2)
3 Amit Kapoor @ Amit Kumar
@ Punjabi
S/o Satish Kumar
R/o 64, Subh Vihar
Parvana Road,
New Delhi
..........(A3)
FIR No. 626/04
U/S 186/353/307/34 IPC &
25/27/54/59 Arms Act
PS: Defence Colony
Date of institution of the case : 27.1.2005
3
Date when reserved for orders : 16.1.2010
Date of announcement of judgment: 29.1.2010
(TARGETTED CASE)
J U D G E M E N T:
1 By this order I shall dispose off above two mentioned cases as both these cases were clubbed together vide order dated 25.11.2008 by my Ld. Predecessor .
2 In nut shell the prosecution case is as under: 3 Case vide FIR No. 441/03 U/s 379/411 IPC was registered at PS: Sarojini Nagar on the complaint of complainant Sh Udaivir Gupta on 9.10.2003. In the complaint, complainant Sh Udaivir Gupta informed the police of PS Sarojini Nagar that he had parked his Maruti Car 800 No. DDB6435 in front of his house No. B6/4, Safdasrjung Enclave, New Delhi on 1.10.2003 in the evening. Somebody at night time took it away. He made efforts to search the car but could not find it. On this complaint of the complainant, the police registered a case u/s 379/411 IPC. During investigation, efforts were made to trace the car of the complainant. However, it could not be traced. The police of PS Sarojini Nagar thereafter filed "untrace report" before the court of 4 concerned Ld. Metropolitan Magistrate.
4 Case of the prosecution in FIR No. 626/04, u/s 186/353/307/34 IPC, PS Defence Colony is that on 24.11.2004 at about 4.30 PM, secret information was received in the police station that A3 who was involved in chain snatching would come alongwith his associates at Lajapat Nagar from Sew Nagar side in Maruti Car with forged number plate No. DDC0052. DD No. 18A was recorded in this regard. A raiding party was organized on the direction of the SHO consisting of SI Ravinder Pandit, SI K P Singh, Ct. Girish Kumar, Ct. Ravinder, Ct. Sunil Kumar, Ct. Nihal, Ct. Ashok, Ct. Surender, Ct. Sukhpal and Addl. SHO Insp. Meera Sharma and Insp. Harcharan Verma. The police party reached near Ganda Nala near CBlock, Defence Colony at about 5.25 PM. One public witness Irfan was requested to join investigation to which he agreed.
5 Further case of the prosecution is that at about 5.50PM one red colour Maruti Car No. DDC0052 came from Sewa Nagar side . SI Ravinder Pandit & Ct Nihal Singh and Ct. Ashok Kumar gave signal to stop the said car. Maruti Car stopped and SI Ravinder Pandit 5 disclosed his identity to the driver of the car, but the driver of the car accelerated the car towards right side leading to CBlock. SI K P Singh and Ct Girish Kumar were standing towards that side and forced the car driver to stop the Maruti Car. Driver of the car got down and started running towards C Block. Ct Girish Kumar started chasing him. Driver of the car while running took out a revolver from his dub and fired at Ct Girish Kumar. Ct. Girish Kumar saved himself and apprehended the driver of the Maruti Car whose name was ascertained as Amit Kumar (A3). SI K P Singh with the help of Ct Girish snatched the revolver which was fully loaded.
6 Further case of the prosecution is that the other person who was sitting besides the driver's seat got down from the car and started running towards Ganda Nala. He was apprehended ;by SI Ravinder Pandit and Ct Nihal Singh and Ct. Sushil and his name was ascertained as Jagjit Singh @ Jagga (A1). Third person who was sitting in the rear seat of the car came out of the car and started running towards back side of the car. He was apprehended and his name was ascertained as Arvind Singh (A2).
67 On checking the revolver recovered from (A3), it was found to contain five live cartridges and one used cartridge. Sketch of the revolver and the cartridges was prepared and these articles were sealed in a pullanda with the seal of RKP and seized vide seizure memo. Form FSL was filled up.
8 During investigation police team came to know that the car recovered from possession of the accused persons was a stolen car from PS Sarojini Nagar and a case vide FIR No. 441/03 had already been registered there. SI Ravinder Pandit prepared rukka and got the present case registered. Investigation was, thereafter, taken over by SI Paramvir Dahiya, who came at the spot and took custody of A1 to A3. 9 SI Paramvir Dahiya prepared site plan at the spot and recorded statements of the concerned witnesses. Articles recovered from the possession of the personal search of the accused were seized vide memos. Maruti Car No. DDC0052 whose original number was DDB 6435 was seized vide seizure memo. All the accused persons were arrested and their personal search memos were prepared. SI Paramvir Dahiya recorded disclosure statements of the accused persons and 7 they revealed their involvement in other cases. 10 Further case of the prosecution is that A3 got recovered 3 motorcycles from his house No. 64, Sukh Vihar and the same were seized vide seizure memo. A1 also got recovered 5 motorcycles from his house No. 34 Udai Vihar, Chander Vihar, Delhi and were seized vide seizure memo. One Amarjit, friend of accused persons also got recovered 12 mobile phones from his shop.
11 On 25.11.2004, accused persons were produced before the concerned court and were sent to JC. During further investigation, statements of concerned witnesses at different stages of investigation were recorded. IO got the exhibits sent to FSL and collected the FSL report. The necessary sanction u/s 39 of the Arms Act and sanction u/s 195 CrPC were obtained. After completion of investigation, police filed challan u/s 307/186/353/34 IPC and u/s 25/27/54/59 Arms Act against the accused persons in the court of Ld. Metropolitan Magistrate. 12 After complying with the provisions of sections 207 and 208 Cr.P.C the Ld. M.M committed the case to the Court of Sessions qua A1 to A3.
813 Intimation regarding recovery of stolen vehicle from possession of the accused was given to police of PS Sarojini Nagar. Accused persons were formally arrested in the said case. IO of the said case got the vehicle transferred in the malkhana of PS Sarojini Nagar. IO of he said case got recorded statements of the concerned witnesses and after completion of the investigation filed challan against A1 to A3 in the court of concerned M.M. Since case vide FIR No. 441/03 was connected case with FIR No. 626/04, Ld. M.M. Committed the said case to the court of Sessions vide order dated 27.4.2005. 14 After hearing Ld. Addl. P.P. for the State and Ld. Counsel for the accused, charge U/s 186/353/307/34 IPC was ordered to be framed against A1 to A3 by my Ld. Predecessor vide order dated 5.5.2005. Separate Charge u/s 25/27/54/59 Arms Act was ordered to be framed against A3. A1 to A3 pleaded not guilty to the charges and claimed trial.
15 In case FIR No. 411/03, charge u/s 379/411/468/471/34 IPC was ordered to be framed against A1 to A3 by my Ld. Predecessor vide order dated 5.5.2005. A1 to A3 pleaded not guilty 9 to the said charges and claimed trial.
16 To prove its case against the accused, the prosecution examined 12 witnesses in all, namely PW1 Irfan, PW2 SI Ravinder Pandit, PW3 Insp. Harcharan Verma, PW4 SI Paramvir Dahiya, PW5 Ct. Nihal Singh, PW6 Ct Surender Singh, PW7 Sh Punit Puri, PW8 Ct. Girish Chander, PW9 Ct. Nihal Singh, PW10 Sh Partap Singh,Record Clerk, PWCt. Ashok Kumar and PW12 Sh Anil Shukla. 17 Prosecution examined PW1 Udaivir Gupta, PW2 SI Raj Kumar, PW3 ASI Nirmala, PW4 HC Ram Avtar, PW5 HC Ravinder Kaur, PW6 HC Shyaqm Lal and PW7 HC Jagdish in case FIR No. 441/03. After clubbing the case, evidence in both the cases were recorded in main connected case vide FIR No. 626/04. 18 Statements of the accused persons were recorded U/s 313 Cr.P.C. They denied their involvement in the commission of the offences. Their plea is that they have been falsely implicated in this cases and nothing was recovered from their possession or at their instance. They were lifted on 21.11.2004 by the police when they were present at residence of uncle of A1 at Bajpur, Nainital, Uttranchal and 10 they were falsely implicated in these cases.
19 A1 examined himself as a defence witness DW2 u/s 315 CrPC. Accused persons also examined DW1Sh R K Singh and DW3 Sh Surender Singh in their defence.
20 I have heard Ld. Addl. P.P. for the State and Ld. Defence Counsel for the accused A1 to A3 in both the cases and have gone through the file.
21 Contention of Ld. Addl. P.P. for the State is that the prosecution has established its cases against all the accused beyond reasonable doubt. All the prosecution witnesses including independent public witness Irfan have fully supported the case of the prosecution and there is nothing to disbelieve their positive testimonies. 22 On the other hand, Ld. Defence Counsel for the accused A1 to A3 have vehemently argued that the accused have been falsely implicated in these cases. There are material discrepancies and contradictions in the statements of the prosecution witnesses which make it unsafe to convict the accused persons. Nothing was recovered from the possession of the accused persons or at their instance. 11 Accused persons were lifted from Bajpur, Nainital, Uttranchal when they had gone to the house of uncle of accused A1. Fax was given by the father of A1 regarding lifting of A1 from his house on 23.11.2005. Accused persons were implicated in number of cases in which they have been discharged by the court. PW Irfan is a stock witness of the police.
23 Contention of the Ld. Cousnel for A3 in the written submissions is that there was no sanction u/s 39 of the Arms Act as on 5.5.2005. There was no sanction u/s 195 CrPC and it was filed subsequently in the court. The office HPS Cheema, who had granted the sanction has not appeared in the witness box. The vehicle in question was not in working condition which shows that same had already been recovered by the police. The FSL report does not support the case of the prosecution.
24 I have considered the arguments of the Ld. Addl. P.P. for the State and Ld. Defence Counsel for the accused A1 to A3 and have scrutinized the testimonies of the prosecution witnesses on record. The case of the prosecution is discussed as under: 12 (A) Offence U/s 379/411 IPC against A1 and A2:
25 On scanning the statements of the prosecution witnesses as a whole, I am of the view that the prosecution has failed to prove its case against A1 and A2 regarding commission of the offence punishable u/s 379/411 IPC. Vehicle in question was a stolen property from the jurisdiction of PS Sarojini Nagar since 9.10.2003. The police of PS Sarojini Nagar made efforts to recover/trace the vehicle, but it could not be traced. None had witnessed A1 and A2 to have stolen the vehicle in question from the possession of complainant Sh Udaivir Gupta. So there is no evidence on record to attract or prove section 379 IPC against A1 and A2.
26 Regarding section u/s 411 IPC against A1 and A2, the evidence adduced on record by the prosecution is highly scanty to establish their guilt. These accused persons were not found in possession of the car in question. There is nothing, whatsoever, on record to show if A1 or A2 had forged the number plate of the car in question. There is nothing on record to show if after commission of theft of the vehicle in question, both these accused persons had 13 received or retained the same knowing or having reasons to believe the same to be a stolen property. On the date of incident in case FIR No. 626/04 dated 24.11.2004 all the prosecution witnesses have testified that this vehicle was found driven by A3. A1 and A2 were stated to be sitting inside the car at the time of its recovery. In my view all the three accused persons simultaneously can't be inferred to have received or retained the stolen property. The vehicle in question was in the effective possession/control of A1 who was driving the same at the relevant time when it was recovered from him. A1 and A2 were just sitting in the front or rear seats of the said car. Mere presence of A1 and A2 in the vehicle in the control and constructive possession of A3 is not sufficient to prove that both A1 and A2 had received or retained the vehicle in question knowing or having reasons to believe the same to be a stolen one. No evidence was adduced by the prosecution if after commission of the theft, both A1 and A2 had ever used the vehicle in question. There is nothing on record to show if A1 and A2 were having any knowledge that the vehicle in possession of A3 was a stolen property or that the number plate used on it was a forged one. In 14 my view the prosecution has failed to prove the commission of offence punishable u/s 379/411 IPC against A1 and A2 beyond reasonable doubt. A1 and A2 deserve benefit of doubt on that account. (B) Offence U/s 307/353/186 IPC against A1 & A2: 27 Regarding charges 307/353/186 IPC against A1 and A2, again there is no worthwhile evidence on record to connect them with the commission of the offence. As per prosecution, it was only A3, who had fired at Ct Girish chasing him. There are no allegations against A1 and A2 if they had attempted to commit murder of any of the members of the police team present at the spot. There are no allegations against A1 and A2 if they were aware about possession of the deadly weapon/revolver in possession of A3 at the time of incident. There is no evidence on record to infer if A1 and A2 had exhorted A3 to fire at Ct Girish Kumar. No role whatsoever was attributed to A1 and A2 in the statements of the prosecution witnesses to show if they had participated in the commission of the offence whereby A3 fired at the members of the raiding team. Rather it has come on record that after the accused persons were signaled to stop Maruti Car No. DDC 15 0052, it was A3 who had got down from the car and had started running away and when he was chased by Ct. Girish Kumar etc, he fired at him. One of the accused admittedly was caught when he was still present in the car. Prosecution has thus failed to adduce any circumstance to infer if there was any common intention between all the accused persons to fire at the members of the police team to escape from the spot. There is nothing on record to show if all the accused persons were aware about the presence of the police at the spot to develop any common intention to eliminate any of the them to escape their apprehension. Only when A3 who was driving the maruti car was given signal to stop by the police team, to escape from the spot, he had fired at Ct Girish. No role whatsoever has been assigned to A1 and A2 to have committed any offence punishable u/s 307 with common intention of A1 and A2. Again, there is no worthwhile evidence on record to show if A1 and A2 obstructed the members of the police team in the discharge of their public functions or assaulted or used criminal force to deter them from discharging their public duties. In the statements of the prosecution witnesses, nothing has come on 16 record to show if A1 and A2 at the time of their apprehension were found in possession of any weapon. Again, there is nothing in the depositions of the prosecution witnesses if A1 and A2 used criminal force or assaulted any members of the police team to prevent their apprehension. A1 and A2 were present in the Maruti Car being driven by A3 and only when A3 fired at the police team, the other two (A1 and A2) also attempted to flee away from the spot. There are no allegations that in that process they resisted their apprehension by using any force whatsoever. Even one of the accused was apprehended from inside the car itself without any resistance. No members of the raiding team was hurt and no altercation took place between the members of the raiding team and A1 and A2. Mere apprehension of A1 and A2 alongwith A3 at the spot is not enough to prove that they had obstructed the public servants in the discharge of their public duties.
28 Case of the prosecution is that these accused persons were involved in snatching incidents and number of stolen articles were recovered from their possession or at their instances. This 17 circumstance is not relevant in the present case to establish their guilt. Prosecution has not filed on record any document to show if any of these accused persons has been convicted in any such case. In the absence of any overt act on behalf of A1 and A2 it can't be said that they obstructed the public servants in the discharge of their public duties or that they used criminal force.
29 Both A1 and A2 deserve benefit of doubt on that account and are acquitted in this case.
(C) Role of A3: 30 Regarding A3, prosecution has examined number of witnesses to prove that it was he who fired at Ct Girish Kumar to
prevent his apprehension and in that process he obstructed public servants in the discharge of their public duties. 31 Material testimony on this aspect is that of PW1 Irfan. In his deposition before the court PW1 Irfan testified that on the day of incident at about 5.45 PM he was going to Lajpat Nagar. When he reached near Defence Colony Ganda Nala some police officials who were in plain clothes met him and requested him to join investigation as 18 some snatchers were likely to arrive there. He joined investigation with the police team including SI Ravinder Pandit, Ct. Girish Kumar, Ct. Nihal and other staff members. After 57 minutes from Kotla side one Maruti Car No. DDC0052 came. There were three persons in the car. A3 was driving the said car. A2 and A3 were the other persons in the car. A3 started running after stopping the vehicle and when Ct Girish Kumar changed him, A3 fired from a country made revolver at him. SI K P Singh and Ct Girish apprehended A3. Other accused were apprehended by SI Ravinder Pandit and other police officials. Country made revolver recovered from possession of A3, alongwith five live cartridges and one empty cartridge was taken into police possession vide memo Ex. PW1/B after preparing sketch of the recovered country made revolver and cartridges Ex. PW1/A. Some ornaments like ring, chain, watch etc. recovered from accused A1 were seized vide memo Ex. PW1/C. Mobile phone, chain and ring recovered from accused A3 were seized vide memo Ex. PW1/D. Mobile recovered from accused A2 was seized vide memo Ex. PW1/E. All the accused persons were arrested vide arrest memos Ex. PW1/G1 19 to G3 and their personal search were taken vide memos Ex. PW1/H1 to H3.
32 This witness identified the country made revolver Ex. P1, cartridges Ex. P2/1to6 seized in this case. He also identified photographs of car having plat No. DDC0052 of red colour exhibited Ex. P1 to P3.
33 In crossexamination PW1 Irfan stated that he was a summoned witness. He was not residing at Delhi and he had left the given address at about 1 ½ years ago. He was not cited as witness in any other case. He did not know any police officers related to this case. On the day of incident he was going to Lajpat Nagar from his shop at Andrews Ganj which was at a distance of 1 KM. The police officials were having two private cars which were parked on the main road itself. The police officials gave signal by hand to stop the car in which the accused persons were travelling and the car stopped. Maruti Car in which the accused persons were travelling came within 10 minutes of his being present there. Police officials had not told him the name of the persons who were likely to come and they also did not 20 tell number of the persons. All the accused persons were apprehended within 2 to 4 minutes of stopping the car. All the accused persons were apprehended almost simultaneously, in fact one was nabbed inside the car itself.
34 He remained at the spot till 11.30PM to 12 night and thereafter he came to his shop on his own. He was not called at police station thereafter by any member of the police team. He came to the court on receipt of the summons. He admitted that there was no specific mark on the cartridges recovered at the spot. He clarified that he identified the cartridges by approximation. IO Paramvir Dahiya came at the spot at about 8.30 PM. The witness denied the suggestion that he was a stock witness or that the police used him as a witness in many cases. Witness further denied the suggestion that the accused persons were not apprehended from the spot or that they were apprehended from Bajpur Nainital on 21.11.2004. 35 In the crossexamination on behalf of accused A2, the witness stated that he was in Delhi for the last about 1112 years. Earlier he was working as a Barbar in Dakshinpur. Shop No. 21 40Andrews Ganj was owned by Smt Ratan Devi. He was running shop no. 40 about 45 years prior to the occurrence. He was also residing in the said shop and did not have any separate residence. His sister was also living in Delhi. He used to open the shop at about 7 AM and close at 9 PM. The witness further stated that the person who had fired a shot might had run away about 100 feet from the spot and other might had run about 40 feet from the spot. He further stated that he did not run after the accused persons. Police obtained his signatures on several papers . Contents of the documents were not read over to him by the police. The witness denied the suggestion that the police officials used to visit his shop in connection with hair cutting and due to that reason, he was having acquaintance with the police. The witness admitted that no incriminating article was in hands of A1. 36 Overall testimony of this independent public witness reveals that he has fully supported the prosecution on all material facts. He has given vivid description of the incident minutely. He has attributed specific role to each of the accused present at the spot. His presence at the spot has not been denied in the crossexamination. 22 Only plea of the Ld. Defence Counsels for the accused is that this witness is a stock witness of the police and has falsely implicated the accused at their instance. This plea of the Ld. Defence Counsel for the accused is without any basis and inspires no confidence. Simply because this independent witness opted to support the prosecution, on that count he can't be dubbed as a ''stock witness''. Generally grievance of the accused persons remain that police failed to join any public independent public witness at the spot at the time of conducting investigation. Mostly, public witnesses joined by the prosecution turn hostile for various reasons and in that eventualities they are not termed ''stock witness''. However, if any public witness happens to support the prosecution story, generally he is accused of being the ''stock witness'' of the prosecution. In the present case, nothing has come on record to show if PW1 Irfan was a stock witness of the police. Accused persons did not produce on record any document to show if this witness had earlier appeared in any case of the police against any person or that his testimony was not believed by the court. In the crossexamination, this witness categorically denied if he had appeared as witness on 23 behalf of the police in any other case. Mere suggestion by the Ld. Defence Counsel without any foundation is of no help to the accused persons in this regard. This witness was not a chance witness. His presence at the spot was quite plausible as he used to reside in his shop which was situated at a distance of about 1 KM from the spot of incident. There is nothing on record to show if prior to the incident, this witness had any nexus with the police personnels or that they were on visiting terms. This witness in the crossexamination did not attribute any role to A1 & A2. He has categorically stated that no incriminating material was recovered from the possession of A1. Had this witness been a ''stock witness'' of the police, he must have levelled allegations against other accused persons also. This witness appeared in the witness box after he was summoned by the court. He has categorically stated that he was not a witness in any other case and did not know police officials related to this case. He was stopped by the police when he was on his way to Lajpat Nagar from his shop at Adnrews Ganj which was at a distance of about 1 KM from the spot. 37 This independent public witness has no ulterior motive to 24 falsely implicate the accused. Witness was not going to be benefited because of his deposition against the accused persons. This witness was not known to any of the accused persons prior to the occurrence to have any enmity prompting him to falsely rope in them in this case. In the absence of any prior enmity, this witness is not imagined to concoct a false story against the accused persons. There is nothing on record to disbelieve the positive testimony of this witness. 38 This witness was crossexamined by the Ld. Defence Counsels at length. However, no material discrepancy or contradiction has been elicited in his cross examination to disbelieve his presence at the spot. This witness has stood to test of crossexamination and has unhesitantly supported the prosecution on all relevant facts. The testimony of this witness inspires implicit confidence. 39 PW2 SI Ravinder Pandit has corroborated the version given by PW1 Irfan in toto. In his examinationinchief also he detailed the manner in which all the three accused were apprehended. He gave detailed account as to how A3 fired at Ct. Girish when Ct. Girish chased to apprehend him. He also testified about the recovery of 25 stolen maruti car No. DDC 0052 which was being driven by A3. He proved various proceedings conducted at the spot and also about the recovery of country made revolver and cartridges from the possession of A3.
40 In the crossexamination, the witness answered the questions of the Ld. Defence Counsels for the accused correctly. No material discrepancy has come out in the crossexamination of this witness to disbelieve the version given by him. Presence of this witness at the spot has not been challenged in the crossexamination. No motive was attributed to this witness for falsely implicate the accused persons. Witness denied the suggestion that PW1 Irfan was a stock witness or that he was not present at the spot.
41 PW3 Insp. Harcharan Verma also supported the prosecution and categorically deposed that at about 5.50PM one maruti car No. DDC 0052 came from the side of Sarojini Nasgar, Kotla. When car was signaled to stop, the driver of the car, i.e. A3 came out and was chased by Ct. Girish and SI K P Singh. A3 took out a revolver from his right dub and pointed out towards Ct Girish and fired. 26 However. Ct. Girish saved himself. On apprehension A3 was found in possession of one country made revolver and five live cartridges. One used cartridge was also recovered from the revolver. Necessary proceedings were conducted at the spot.
42 In the crossexamination he has stated that DD No. 18A was recorded regarding this incident. They had proceeded from the PS at about 5.50PM. PW1 Irfan was joined in the investigation at the spot and one empty cartridge was found in the revolver chamber. No mobile was recovered from possession of A3 in his presence. Witness denied the suggestion that accused was apprehended on 21.11.04 from Nainital or that his mobile was taken and switched off and the same remained with them. Witness further stated that there were two private vehicles at the spot. Ct. Girish Kumar saved himself by ducking. Ct Girish was having no weapon. They did not fire at A3 after taking out the weapons.
43 Entire testimony of this witness shows that he has also stood to test of crossexamination and nothing has been brought out to help the accused.
2744 PW4 SI Paramvir Dahiya took over the investigation of this case after apprehension of the accused persons. He prepared site plan at the spot. He recorded statements of witnesses. He further testified that from A3, two mobile phones and one gold ring were recovered. He also testified about recovery of articles from the possession of A1 and A2 He also testified that in pursuant to disclosure statements the accused persons got recovered stolen articles including motorcycles etc from their respective houses. 45 In the crossexamination the witness has stated that he was in police uniform. He had prepared all the documents at the spot. He remained at the spot for about 3 ½ hours.
46 PW5 Ct Nihal Singh, PW6 Ct.Surender Singh and PW8 Ct Girish Chander were the members of the police team and they have fully supported the prosecution and have corroborated the version regarding the incident detailed in examinationinchief. They all have deposed about the apprehension of the accused persons when they were signaled to stop while travelling in a maruti car No. DDC 0052. They have also deposed that A3 who was driving the said car fired at 28 Ct. Girish Chander who was chasing him.
47 In the crossexamination statements of all these prosecution witnesses have not been shattered. No material discrepancies has come in their crossexamination to disbelieve their presence at the spot or false implication of the accused. 48 I do not subscribe to the plea of the Ld. Defence Counsels for the accused persons that police witnesses can't be believed as they were interested witnesses to implicate the accused persons falsely in this case. Again, this plea of the Ld. Defence Counsels is without any foundation or basis. No ulterior motive has been assigned to these police witnesses to falsely concoct a story to implicate the accused in this case. No enmity has been alleged against the police witnesses. There is nothing on record to show if prior to the incident these accused persons were having any complaint against the police witnesses. These accused persons have claimed that they were arrested from Village Bajpur, Nainital. However, they have failed to explain as to why the police officials from Delhi would travel to Nainital to apprehend them in this case or how they came to know about their 29 involvement presence at Nainital. No worthwhile evidence has been adduced by the accused showing their presence at Village Bajpur, Nainital at the time of their apprehension. All the police witnesses were tested at length in the crossexamination and no inconsistent version has come out regarding the incident to throw out the case of the prosecution. Minor contradictions and inconsistencies pointed out by the Ld. Defence Counsels for the accused persons in the statements of the police witnesses, are not fatal to the case of the prosecution as they do not go the root of the case. A3 failed to explain the possession of stolen maruti car No. DDC 0052, using a forged number plate, for which separate case vide FIR No. 441/03 u/s 379/411 IPC had already been registered at PS Saronjini Nagar. Police of PS Sarojini Nagar failed to trace this car. Police of PS Defence Colony in case FIR No. 626/04, is not expected to plant this stolen vehicle upon A3 in the incident. Police of PS Sarojini Nagar in case FIR No. 441/03 came to know about recovery of the stolen vehicle which was being driven by A 3 having a forged number plate after apprehension of accused in case FIR No. 626/04, PS Defence Colony.
3049 Testimony of the police witnesses can't be discarded simply because they happened to be police officials. In the case of Ramesh Kumar Vs State, ILR (2009) V Delhi 235 Criminal Appeal No. 478/08, decided on 26.2.2009, our own Hon'ble High Court has observed as under:
" A similar contention was repelled by the Lordships of the Hon'ble Supreme Court in the decision reported as Kalpnath Rai Vs State (1997) 8 SCC 732 in the following terms:
"As a legal proposition it was argued that it would be unsafe to base a conclusion on the evidence of police officers alone without being supported by at least one independent person from the locality. To reinforce the said contention Sh V S Kotwai, Senior Advocate cited the decision of this court in Pradeep Narayan Madgaonkar and Ors, Vs State of Maharashtra (1995) 4 SCC 255 wherein want of independent witnesses of the locality rendered suspicious a raid conducted by the police.
There can be no legal proposition that evidence of police officers, unless supported by independent witnesses, is unworthy of acceptance. Nonexamination of independent witness or even presence of such witness during police raid would cast an added duty on the court to adopt greater care while scrutinizing the evidence of the police officers. If the evidence of the police officer is found acceptable it would be an erroneous proposition that court must reject the prosecution version solely on the ground that no independent witness was examined. In Pradeep Narain Madgaonkar (Supra) to which one of us (Mukherjee, J) is unambiguous terms, the relevant portion of which is extracted below:
Indeed, the evidence of the official (police) witnesses 31 cannot be discarded merely on the ground that they belong to the police force and are, either interested in the investigation or the prosecuting agency but prudence dictates that their evidence needs to be subjected to strict scrutiny and as far as possible corroboration of their evidence in material particulars should be sought. Their desire to see the success of the case based on their investigation, requires greater care to appreciate their testimony."
50 In the present case the testimony of the police witnesses has been duly corroborated by independent public witness PW1 Irfan. 51 In the statement recorded u/s 313 Cr.PC A3 did not give plausible explanation qua the incriminating evidence appearing against him. He did not lead any defence evidence to falsify the positive testimony of the prosecution witnesses. He failed to explain as to how and when he came in to possession of the stolen car. 52 In view of the above testimonies of the prosecution witnesses, I am of the view that the prosecution has fully proved that A 3 was found in possession of a stolen maruti car which was being driven by him by using a fake number plate. A3 was having physical control of the stolen vehicle with him at the time of its recovery. He did not claim that the vehicle being driven by him belonged to coaccused 32 persons. He did not explain as to how he got possession of the car in question. He did not produce any document of the vehicle in question showing ownership with him. All these facts prove beyond doubt that A3 received or retained the possession of the vehicle in question, (i.e. Maruti 800 Car No. DDB6435 with fake number plate of car No. DDC 0052) knowing or having reasons to believe the same to be a stolen property. Prosecution, thus has established commission of the offence u/s 411 IPC against A3.
53 Regarding sections 186/353 IPC, again, I am of the view that the prosecution has proved the same beyond doubt. A3 fired at police party to avoid his apprehension and obstructed the police party in the discharge of their public duties. He also used criminal force by firing at Ct Girish Chander when he chased to apprehend him. The factum of attempt to abscond from the spot after being chased by the police team also shows guilty mind of A3.
54 I do not subscribe to the contention of the Ld. Defence Counsel for the accused that there was no sanction u/s 195 CrPC. Perusal of the file reveals that challan was filed in case vide FIR No. 33 626/04 in the court of Ld. M.M on 27.1.2005. The prosecution filed sanction before the court of Ld. ACMM on 24.1.2005 which was forwarded to the court of court concerned. So it can't be said that there was no sanction u/s 195 CrPC before the Ld. M.M ast the time of taking cognizance against accused.
55 I also do not subscribe to the contention of the Ld. Defence Counsel for A3 that sanction u/s 195 CrPC as not proved as per law. At the time of examination of PW12 SSP Anil Shukla (earlier DCP), Ld. Defence Counsel for the accused persons had not objected to the mode of proof of permission u/s 195 CrPC. PW12 has also proved the sanction u/s 39 of the Arms Act. There is no effective cross examination on that aspect.
56 Prosecution has further established commission of offence punishable u/s 307 IPC as A3 fired at Ct Girish Chander from a country made revolver in his possession. It was good luck of Ct. Girish Chander that he escaped from the bullet fired at him by A3. A3 had intentionally fired at Ct. Girish Chander to evade his apprehension when Ct Girish Chander and SI KP Singh were chasing him to 34 apprehend.
57 Prosecution further proved the commission of offence u/s 27/54/59 Arms Act against A3 as he was found in possession of the country made revolver Ex. P1 with five live cartridges Ex. P2/1 to 5 and used cartridge Ex. P2/6. A3 was not only found in possession of country made revolver but also he used the same by firing at Ct. Girish Chander from the said revolver. The report Ex. PW7/A of the ballistic export PW7 Sh Puneet Puri fully supports the prosecution that the revolver Ex. P1 recovered from the possession of A3 was found in working order.
58 In the statement recorded u/s 313 CrPC, there is no explanation by A3 on this incriminating circumstance appearing against him. Accused did not lead any defence evidence to show his innocence.
59 In my view the prosecution has proved its case for commission of offence punishable u/s 186/353/307 IPC and u/s 27/54/59 Arms Act in case FIR No. 626/04, PS Defence Colony and U/s 411 IPC in case FIR No. 441/03, PS Sarojini Nagar against A3 35 beyond reasonable doubt. Accordingly, A3 is held guilty and convicted under the said offences.
60 However, the prosecution has failed to prove its case against A1 and A2 for commission of offence punishable u/s 186/353/307/34 IPC and u/s 27/54/59 Arms Act in case FIR No. 626/04, PS Defence Colony and U/s 411 IPC in case FIR No. 441/03, PS Sarojini Nagar beyond reasonable doubt. Benefit of doubt is given to A1 & A2 in both the cases. They are acquitted in both the cases. Announced in open court dated 29.1.2010.
(S.P.GARG ) DISTRICT JUDGEIV/ASJ NEW DELHI 36 IN THE COURT OF SHRI S.P.GARG DISTRICT JUDGEIV, NEW DELHI (1) S.C.No. 143/05 State Vs Amit Kapoor @ Amit Kumar @ Punjabi S/o Satish Kumar R/o 64, Sukh Vihar Parvana Road, New Delhi ............(A3) FIR No. 441/2003 U/S 379/411/468/471/34 IPC PS: Sarojini Nagar (2) S.C.No. 117/05 State Vs Amit Kapoor @ Amit Kumar @ Punjabi S/o Satish Kumar R/o 64, Sukh Vihar Parvana Road, New Delhi ..........(A3) FIR No. 626/04 U/S 186/353/307/34 IPC & 37 25/27/54/59 Arms Act PS: Defence Colony ORDER ON SENTENCE:
1 I have heard the convict Amit Kapoor @ Amit Kumar @ Punjabi (A3) on the point of sentence.
2 Convict has prayed to take lenient view as he has remained in J.C in this case for about three months. He is not involved in any other case. He is sole bread earner of his family. He is aged about 25 years. No injuries were sustained by any person.
3 I have considered the prayer of the convict and have gone through the file.38
4 The offence committed by the convict is no doubt is very serious and he does not deserve any leniency on that score as he had attempted to commit murder of the member of the raiding team to evade his apprehension by firing with country made revolver. However, considering the prayer of the convict and the fact that he has already remained in custody in this case for about three months; the fact that none was injured in the incident and the fact that he is not involved in any other case, lenient view is taken against the convict and he is sentenced to undergo RI for three years with fine of Rs.8,000/ and in default of payment of fine to undergo SI for 8 months for the offence punishable u/s 307 IPC .
5 Convict is further sentenced to under RI for two years with fine of Rs. 2,000/ and in default of payment of fine to undergo SI for 2 months for the offence punishable u/s 39 411 IPC .
6 Convict is further sentenced to undergo RI for one year with fine of Rs. 1,000/ and in default of payment of fine to undergo SI for 1 month for the offence punishable u/s 353 IPC .
7 Convict is further sentenced to undergo RI for two years with fine of Rs. 2,000/ and in default to undergo SI for 2 months for the offence punishable u/s 27/54/59 Arms Act . 8 No separate sentence is being passed u/s 186 IPC. 9 All the substantive sentence shall run concurrently. 10 The period already undergone by the convict in this case shall be counted and set off against the substantive sentences u/s 428 Cr.PC.
11 Copy of the judgment be given free of cost to the convicts. File be consigned to the record room. 40
Announced in open court on dated 30/01/2010 (S.P.GARG) DJIV/ND 41