Delhi District Court
Fir No. 126/04; State vs . Hardeep Singh Etc Page 1 Of 18 on 20 September, 2010
IN THE COURT OF SH. RAVINDER DUDEJA : ADDL. SESSIONS
JUDGE-03:NW:ROHINI:DELHI
SESSIONS CASE NO. 70/09
FIR No. 126/04
P.S. Hari Nagar
U/S: 186/307/353/34
IPC
STATE
Versus
(1) HARDEEP SINGH @ LALLU
s/o Sh. Tarshem Singh
r/o B-2/476, Sultanpuri, Delhi
(2) DIWAN CHAND @ LALA (Expired)
s/o Sh. Hari Ram
r/o R-548, Raghubir Nagar,
(3) KAPIL @ SONU
s/o Sh. Mahabir Singh
r/o C-2/356, Sultanpuri, Delhi
Date of Institution : 02/08/2004.
Date of Argument : 06/09/2010.
Date of Judgment : 20/09/2010.
FIR no. 126/04; State Vs. Hardeep Singh Etc Page 1 of 18
JUDGMENT
1. The Prosecution case is that on 06-03-2004 secret informer came in the office of Anti-Snatching Cell, Paschim Vihar and informed HC Rajbir Singh that Diwan Chand @ Lala, a famous robber, who was released from jail about 7/8 days ago, would arrive with his associates between 12:30 pm and 1 pm at Jheelwala Park, Asha Park from the side of Fateh Nagar with intention to commit some offence/robbery and that they were having knife and ammunition. HC Rajbir Singh apprised Inspector Bhoop Singh, In-charge Anti- Snatching Cell of the information. Inspector Bhoop Singh briefed the information to other police staff and directed SI Santokh Singh to organise a raiding party. SI Santokh Singh organised a raiding party with the help of ASI Paramjit, HC Dilbagh Singh, HC Naresh Kumar, HC Sukhvinder Singh, Ct. Devender Singh and Ct. Rajesh Kumar. The raiding party left the office of Anti-Snatching Cell at about 11:20 am in Government vehicle no. DL1LC-9985, which was driven by HC Daya Nand. At about 11:45 am on reaching crossing FIR no. 126/04; State Vs. Hardeep Singh Etc Page 2 of 18 near Tilak Nagar water tank, 3/4 passersby were requested to join the raiding party but all of them left expressing their inability. At about 12 pm, they reached at the spot. The vehicle was parked and hidden. Nakabandi was made near the gate of the park. At about 1 pm a two wheeler scooter bearing no. DL4SA-2984 make Bajaj Chetak of green colour came from the side of CB Block flats towards Ashok Nagar on which three persons were sitting. On the pointing out of informer, they were given signal to stop the scooter. On seeing the police party, they slowed down the scooter and then suddenly tried to accelerate the same. HC Rajbir Singh and HC Dilbagh Singh tried to stop the scooter. The accused, whose name later on came to be known as Diwan Chand @ Lala, who was driving the scooter, ran towards park after throwing the scooter. He was chased by SI Santokh Singh and HC Rajbir Singh. Accused Diwan Chand @ Lala brought out a country made pistol from his right dub and fired at HC Rajbir Singh. The bullet passed from the side of neck of HC Rajbir. Accused Diwan Chand @ Lala was overpowered by SI Santokh Singh with the help of HC Rajbir FIR no. 126/04; State Vs. Hardeep Singh Etc Page 3 of 18 Singh and country made pistol of 315 bore was recovered from his possession. Accused, whose name later came to be known as Hardeep @ Lallu, who was sitting in the middle on two wheeler scooter got down from the scooter and ran towards Asha Park vacant plot and while trying to fled away, he brought out a dagger from his right dub and waived the same on HC Dilbagh Singh. He was overpowered by HC Dilbagh Singh with the help of Ct. Devender Singh and HC Sukhvinder Singh. Accused, whose name came to be known as Kapil @ Sonu, who was the third person and sitting last on the two wheeler scooter, also got down from the scooter and tried to flee away towards CB Block but was overpowered by HC Naresh Kumar with the help of Ct. Rajesh Kumar. On his search, a buttondar knife was recovered from his possession. Investigation regarding the recovery of dagger from accused Hardeep @ Lallu and buttondar knife from accused Kapil @ Sonu was conducted separately by HC Dilbagh Singh and HC Naresh Kumar respectively. On checking, a country made pistol was recovered from accused Diwan Chand @ Lala. A fired FIR no. 126/04; State Vs. Hardeep Singh Etc Page 4 of 18 cartridge was recovered on his formal search and a live cartridge of 315 bore was recovered from the right pocket of his pant. SI Santokh Singh prepared the sketch of the country made pistol and of both the cartridges which is Ex. PW3/A. On measurement, the length of the barrel was found to be 4.6 inches, length of the body was 3.5 inch and length of the butt was 3 inches. The country made pistol and the used and live cartridges were kept in cloth pullanda and sealed with the seal of SSJ. The sealed pullanda was seized vide memo Ex. PW3/D. FSL form was filled up. Seal after use was handed over to ASI Paramjit Singh. The scooter was seized from the spot vide memo Ex. PW4/A. SI Santokh Singh then prepared the rukka Ex. PW5/A and then sent the same at PS through HC Rajbir Singh. On the basis of rukka, HC Yoginder, Duty Officer recorded FIR no. 126/04 u/s 307/186/353/34 IPC and u/s 27/54/59 Arms Act. After registration of FIR, investigation was entrusted to SI Sunil Kumar who came at the spot and prepared the site plan Ex. PW6/A, recorded statement of witnesses and arrested all the three accused. Case property was deposited in Malkhana FIR no. 126/04; State Vs. Hardeep Singh Etc Page 5 of 18 and exhibits were sent to FSL. Pending the receipt of FSL result and sanction u/s 39 Arms Act, chargesheet was filed in the Court u/s 307/186/153/34 IPC and u/s 27/54/59 Arms Act. During the pendency of the case, FSL result and sanction u/s 39 Arms Act was filed in the Court.
2. After compliance of Section 207 Cr. P. C., case was committed to the Sessions Court. My Ld. Predecessor framed charges against all four accused u/s 186/353/307/34 IPC and separate charge u/s 25/27 Arms Act against accused Diwan Chand @ Lala. Accused pleaded not guilty to the charges framed against them. During trial accused Diwan Chand @ Lala was killed in police encounter and proceedings qua accused Diwan Chand @ Lala have therefore been abated.
3. In order to prove its case, Prosecution examined nine witnesses. PW1 is HC Yoginder Singh, Duty Officer. He proved the FIR Ex. PW1/A. PW2 is Ct. Suresh. He had joined the investigation with SI Sunil Kumar. He had visited the spot with IO. He is FIR no. 126/04; State Vs. Hardeep Singh Etc Page 6 of 18 the witness of arrest of accused. He has proved the arrest memo Ex. PW2/A to PW2/C and their personal search memos Ex. PW2/D to PW2/F. PW3 is HC Rajbir Singh, PW4 is ASI Paramjit Singh, PW5 is Retd. SI Santokh Singh, PW7 is HC Dilbagh Singh and PW9 is HC Naresh Kumar. They are the members of raiding party and their testimony are more or less same as stated in para no. 1 of the judgement and therefore not being repeated again for the sake of brevity. They identified the pistol, cartridges and scooter.
PW6 is SI Sunil Kumar, to whom the investigation was entrusted after the registration of FIR. During investigation, he went at the spot, prepared the site plan Ex. PW6/A, interrogated the accused and arrested them. Thereafter, he sent the exhibits to FSL. After filing of chargesheet, he collected the FSL result and obtained permission under Arms Act.
PW8 is HC Shri Ram, the then MHC (M) PS Vikaspuri. He proved the entries made in Register no. 19 regarding deposit of case property in Malkhana.
FIR no. 126/04; State Vs. Hardeep Singh Etc Page 7 of 184. During trial of the case, statement of accused Hardeep and Kapil were recorded u/s 313 Cr. P. C. wherein they denied all the incriminating evidence put to them. They stated that they were innocent and refused to lead evidence in their defence.
5. Ld. Defence counsel has argued that case is barred by the provisions of 195 Cr. P. C. as there is no complaint from public servant and therefore even cognizance could not have been taken for the offence u/s 186/353 IPC. It is also argued that there is no public witness of the incident and all the witnesses examined by Prosecution are only police officials who were only interested in the success of their case and there are several contradictions and inconsistencies in their testimonies which makes it unsafe to rely on their evidence. Ld. APP however, has argued that bar of Section 195 Cr. P. C. shall not apply to offence u/s 353 IPC. Section 186/353 IPC are separate offences independent of each other. It is also argued that there is no presumption that police witnesses would depose falsely and that accused can be convicted on the basis of uncorroborated testimonies of FIR no. 126/04; State Vs. Hardeep Singh Etc Page 8 of 18 police witnesses who have deposed cogently and there is no reason to disbelieve their testimonies.
6. Section 195 Cr. P. C. prohibits the court from taking cognizance in respect of any offence punishable u/s 172 to 188 except on the complaint in writing of the public servant concerned or some other public servant to whom he is administratively subordinate. Admittedly, in this case no complaint was filed in the Court u/s 195 Cr. P. C. The statement of IO SI Sunil Kumar was recorded to this effect. That being so, cognizance could not be taken in respect of offence u/s 186 IPC and now that cognizance has been taken and charge has been framed against accused u/s 186/34 IPC, they cannot be convicted for the said offence. However, Section 195 Cr. P. C. does not bar the trial of an accused person for a distinct offence on the same or slightly different set of facts. Section 186 and 353 of the Code relate to two distinct offences and while the offence under the latter Section is a cognizable offence, the one under the former is not so. The ingredients of the two offences are distinct.
FIR no. 126/04; State Vs. Hardeep Singh Etc Page 9 of 18Section 186 is applicable to a case where the accused voluntarily obstructs a public servant in the discharge of his public functions whereas u/s 353 IPC the ingredients of assault or use of criminal force while the public servant is doing his duty as such is necessary. The quality of two offence is also different. Section 186 occurs in Chapter X of the Penal Code dealing with contempt of the lawful authority of public servant while Section 353 occurs in Chapter XVI regarding the offence affecting the human body. In taking this view, I am supported by the case of Durgacharan Naik Vs. State of Orissa, AIR 1966, SC 1775. In this case, the Hon'ble Apex Court held that Section 195 Cr. P. C. does not bar the trial of the accused for the distinct offence u/s 353 of Penal Code, though it maybe practically based on the same facts as for the Prosecution u/s 186 of the Penal Code which is barred for want of necessary sanction u/s 195 Cr. P. C. In view of the law settled by Hon'ble Supreme Court in the aforesaid case, I am of the opinion that cognizance for the offence u/s 353 IPC is not barred for the want of complaint u/s 195 Cr. P. C. FIR no. 126/04; State Vs. Hardeep Singh Etc Page 10 of 18
7. Undoubtedly, it is not a case of chance apprehension. As per Prosecution story, given by the witness, HC Rajbir had received a prior information that accused would be coming near Jheelwala Park, Fateh Nagar and were in possession of arms. The information was received at about 11 am while the accused were apprehended at about 1 pm. Thus, there was enough time and opportunity with the police to join public persons in the raiding party. Admittedly, no public person was joined in the raiding party. SI Santokh Singh (PW5) requested 3-4 passersby to join the raiding party on reaching Water Tank but they refused. In the cross-examination, SI Santokh Singh admitted that he had not given any notice to those public persons on their refusal and had not noted down the reasons given by them. The names and addresses of those public persons were also not noted. The accused persons were apprehended on a road near the park during day time. Public persons must have been present even at the spot from where the accused were arrested but it seems no effort was made to join the witnesses to the investigation. Case would have FIR no. 126/04; State Vs. Hardeep Singh Etc Page 11 of 18 been different if no public person was either present or available. The statutory desirability in the matter of search and seizure is that there should be support from unbiased and neutral corners. The search before an independent witness imparts much more authenticity and creditworthiness to the search and seizure proceedings. Such safeguard is intended to avoid criticism or arbitrary and highhanded action against the police officials and to lend credibility to the procedure relating to search and seizure. In the present case, Prosecution offered no satisfactory explanation for not associating independent public witnesses, more so, when they were available right at the elbow.
8. PW3 HC Rajbir Singh deposed that accused Diwan Chand @ Lala had fired at him and SI Santokh Singh but the other witnesses including SI Santokh Singh have stated that Diwan Chand @ Lala had fired at HC Rajbir Singh. In cross- examination, HC Rajbir Singh stated that scooter, helmet and other papers were also seized by the IO but as per seizure memo Ex. PW4/A, only the scooter was seized. There is no FIR no. 126/04; State Vs. Hardeep Singh Etc Page 12 of 18 mention of seizure of the helmet and the papers of scooter. There are contradictions in the testimonies of witnesses regarding the seizure of key and the documents of the scooter. While PW4 ASI Paramjit Singh stated that he does not remember whether the key of the scooter was seized or not, SI Santokh Singh stated that he had not handed over the key, helmet and the papers of the scooter to 2nd IO. The 2nd IO SI Sunil Kumar stated in the cross-examination that he does not remember whether key of the scooter was handed over to him by the first IO or not. According to PW3 HC Rajbir Singh, IO did not ask any passerby to join the investigation at the place where the barracks were put. SI Santokh Singh states in cross-examination that they had made Nakabandi by taking position on the road near the gate. He does not speak about putting the barracks. HC Dilbagh Singh and HC Naresh however have stated that no barricades were put on the road. PW3 HC Rajbir Singh could not tell as to how the scooter was brought to the PS from the spot. He deposed that Inspector Bhoop Singh had left the spot at about 12:45 pm. But as per rukka Ex. PW5/A, FIR no. 126/04; State Vs. Hardeep Singh Etc Page 13 of 18 Inspector along with other staff were present at the spot at the time of sending of rukka at 2:30 pm. PW3 could not tell the number of copies of FSL form which were prepared by the IO. ASI Paramjit Singh and SI Sunil Kumar stated that only one copy of FSL form was prepared and received by SI Sunil Kumar. As per evidence, HC Daya Nand was the driver of the Government vehicle but no Log Book has been summoned or produced. The Log Book would have corroborated the factum of visit of the raiding party at the spot. The case property was not shown to HC Rajbir Singh (PW1) for the purpose of identification. SI Santokh Singh deposed that pullanda of desi Katta was sealed with the seal of "SSJ" but HC Dilbagh Singh could not tell the initials of the seal. As per court observation, the pullanda, when produced in Court, was in a torn condition and its seal was illegible. PW4 could not tell the type of scale used for the measurement of the pistol. PW9 HC Naresh has deposed about the recovery of buttondar knife from accused Hardeep although as per Prosecution case, dagger was recovered from accused Hardeep Singh. PW5 SI Santokh Singh FIR no. 126/04; State Vs. Hardeep Singh Etc Page 14 of 18 deposed that rukka was sent to PS through HC Rajbir Singh. HC Rajbir Singh has remained silent in his testimony that he took rukka to PS. However, PW9 HC Naresh Kumar stated in cross-examination that rukka was handed over to Ct. Rajesh. Ct. Rajesh has not been cited as a witness in the present case. It is not known whether he was also part of the raiding party. Thus, there are several contradictions and inconsistencies in the testimonies of witnesses which makes the Prosecution story doubtful.
9. Normally, the seizure memo and the sketch of the desi katta, which come into existence before registration of FIR, should not bear the FIR number of the case. In this case, the sketch Ex. PW3/A and the seizure memo Ex. PW3/B bear the FIR number of the case. It is not explained as to how and under what circumstances these documents came to bear the FIR number.
10. SI Sunil Kumar deposed that he had deposited the case property in Malkhana but PW8 HC Shri Ram, MHC (M) FIR no. 126/04; State Vs. Hardeep Singh Etc Page 15 of 18 admits in cross-examination that as per column no. 3 of Register no. 19, the name of the depositor against entry no. 2108, copy of which Ex. PW8/A, is SI Santokh Singh. As per evidence, bullet was fired by accused Diwan Chand @ Lala who has since expired. The other two accused have been charged u/s 307 IPC with aid of Section 34 IPC. Admittedly, they had not fired bullet on the police party. Section 34 IPC does not apply unless it is not shown that act stated to be the offence was the act contemplated by a group of persons as a whole and was not foreign to the common intention. The existence of common intention amongst the participants in a crime is the essential element for the application of Section 34 IPC. In the present case, accused persons were not knowing that police was waiting to catch them. No doubt, the common intention can also be formed on the spot but in this case at the most what can be inferred on seeing the police party the common intention of all the three accused was to escape. The act of firing by accused Diwan Chand @ Lala could not be contemplated and therefore only he could have been liable for the offence committed by him and other two FIR no. 126/04; State Vs. Hardeep Singh Etc Page 16 of 18 accused namely Hardeep Singh and Kapil @ Sonu cannot be held responsible. Thus, in my view, Section 307 IPC cannot be invoked against accused Hardeep Singh and Kapil @ Sonu with the aid of section 34 IPC.
11. In this case, the allegations against accused Hardeep are that he had waived knife on the police party to make good his escape and the allegations against accused Kapil @ Sonu is that he had also tried to flee away to avoid his arrest by the police. The act of accused Hardeep and Kapil amount to a mere obstruction or resistance unaccompanied by criminal or assault which therefore does not constitute the offence u/s 353/34 IPC. There must be in addition to obstruction, use of criminal force or assault to the public servant while he was discharging his duty. Showing knife does not amount to use of criminal force. Section 353/34 IPC is also therefore not prove against accused.
12. In view of the aforesaid discussion, particularly in view of the contradictions and inconsistencies in the FIR no. 126/04; State Vs. Hardeep Singh Etc Page 17 of 18 testimonies of police witnesses, which have remained uncorroborated from any public witness, I am of the opinion that it shall not be save to convict the accused on the basis of their uncorroborated testimonies. Both accused namely Hardeep Singh and Kapil @ Sonu are therefore acquitted. Their bail bonds are cancelled. Sureties are discharged. Documents of sureties, if any, be released after cancellation of endorsement. File be consigned to Record Room.
(RAVINDER DUDEJA) ADDL. SESSIONS JUDGE: NW-03:ROHINI: DELHI. ANNOUNCED IN THE OPEN COURT ON 20-09-2010.
FIR no. 126/04; State Vs. Hardeep Singh Etc Page 18 of 18