Delhi District Court
) Sc No. Old No. 621/99 Dated 07-5-99 New ... vs . on 1 August, 2007
-:1:-
IN THE COURT OF SH. NARINDER KUMAR
ADDL. SESSIONS JUDGE FAST TRACK COURTS
ROHINI DELHI
1) SC No. Old No. 621/99 dated 07-5-99 New No. 124/2006
Date of Decision: 01st of August, 2007
STATE
Versus
1. Jaiveer Singh
S/o Sh.Jage Ram,
R/o Village Pugthala,
Distt. Sonepat,
Haryana.
2 Arun Kumar
S/o Sh. Bhagwan,
R/o H.No. R-39/773,
Street No. 18,
Swatantra Nagar,
Narela, Delhi.
3. Rakesh
S/o Sh. Rajender Prasad,
R/o House No. 41,
Nai Basti, Mamurpur,
Narela, Delhi.
4. Devender ( Since Proclaimed offender)
S/o Sh. Suraj Mal
R/o Village & Post Office Peepali Khera,
Tehsil Gannur, Distt. Sonepat (Haryana)
FIR No. 38/1999
Police Station : Narela
U/s. 307, 353 and 186 IPC r.w. Section 34 IPC
and 27 of the Arms Act
-:2:-
2) S.C. No. 40/99 dated 26-10-1999
STATE
Vs.
Jaiveer Singh
S/o Sh.Jage Ram,
R/o Village Pugthala,
Distt. Sonepat,
Haryana.
FIR No. 39/99
P.S. Narela
u/s 25 Arms Act.
3) S.C. No. 63/99 dated 08/12/1999
STATE
Vs.
Rakesh
S/o Sh. Rajender Prasad,
R/o House No. 41,
Nai Basti, Mamurpur,
Narela, Delhi.
FIR No. 40/1999
P.S. Narela
u/s 25 Arms Act
JUDGMENT
First the Facts On 07.02.99 at about 5.45 p.m, in the fields near Harveli Crossing, Delhi, within the jurisdiction of PS Narela, -:3:- all the four accused,namely, Jaiveer, Rakesh, Devender and Arun Kumar are alleged to have attempted to commit murder of the police party headed by SI Bhagwan Singh, by firing shots. They are also alleged to have so opened fire at the police party in order to deter the police officials from discharging their duties as such public servants.
Case of prosecution is that on 07/02/1999 at about 05:30 p.m., police of P.S. Narela, received secret information that dreadful bad elements of Haryana, were coming towards Delhi from the side of Village Harevli, whereupon DD No.15A was recorded. On the basis of this information, Inspector O. P. Yadav, SHO of that Police Station, constituted a raiding party consisting SI Bhagwan Singh, Head Ct. Jal Singh, Head Ct. Rajender Singh, Ct. Daljeet, Ct. Rakesh, Constable Raja Ram, and reached Village Harevli Crossing. Jaiveer, Devender, Rakesh and Arun Kumar accused, came from the side of Village Harevli. On seeing the police party, accused persons reached towards the back side of a Kothra and tried to hide themselves but the police pounced upon them. Devender accused fired at the police party but he was apprehended by SI Bhagwan Singh and Constable Raja Ram; Rakesh -:4:- accused was apprehended by Head Ct. Jal Singh and Constable Rakesh; Jaiveer accused was apprehended by Head Ct. Rajinder Singh and Ct. Daljeet Singh; and Arun Kumar accused was apprehended by Ct. Raja Ram.
During formal search, Rakesh accused was found in possession of country made pistol loaded with empty cartridge. In this respect, Head Ct. Jal Singh prepared sketches of country made pistol and the live cartridge recovered from Rakesh accused. The country made pistol and the cartridge were turned into parcel and sealed with the seal bearing impression JSV and seized it.
Devender accused was found in possession of one country made pistol loaded with one empty cartridge, from his right hand. From the right side pocket of his pant, two live cartridges of 8 m.m. were also recovered. In this respect, SI Bhagwan Singh prepared rough sketch of the pistol and the cartridges recovered from accused Devender. The SI also turned the pistol and the cartridges into a sealed parcel, sealed with the seal bearing impression 'BS' and then seized it.
Jaiveer accused was found in possession of countrymade pistol loaded with live cartridge. In this respect, -:5:- Head Ct. Rajender Singh prepared sketch of the country made pistol and the live cartridge, turned the pistol and the cartridge into a parcel, sealed the parcel with the seal bearing impression RS and seized it. Thereafter, Head Ct. Rajender Singh sent ruqqa from the spot through constable Daljeet Singh and got case registered. He also prepared rough site plan. He also prepared personal search memo of accused Jaiveer.
Three Separate Cases are Registered SI Bhagwan Singh sent ruqqa from the spot to the police station through Ct. Raja Ram and on its basis case FIR No. 38/99 came to be registered at P.S. Narela, against all the four accused persons for offences u/s 307, 353, 186 read with section 34 IPC and 25 & 27 of Arms Act. ASI Bansi Lal took up investigation of the case and reached the spot.
As against Jaiveer accused, HC Raj Kumar recorded FIR No. 39 for an offence u/s 25 of Arms Act on the basis of ruqqa sent by Head Ct. Rajender Singh through Ct. Daljeet Singh.
As against Rakesh accused, the Head Constable recorded FIR No. 40/99 for an offence u/s 25 of Arms Act, on the basis of ruqqa sent by Head Ct. Jal Singh through Ct. -:6:- Rakesh Kumar.
Investigation On reaching the spot, ASI Bansi Lal prepared site plan and arrested accused persons in main case. Their personal search memos and arrest were prepared. The ASI also recorded statements of witnesses. On return to the police station, the case property was deposited with the MHC (M).
Case of prosecution is that Sh. Satish Golcha, Addl. DCP (North West) accorded sanction for prosecution of accused and prepared complaint u/s195 Cr.P.C.
On 04/03/1999, Head Ct. Hori Lal took one sealed parcel from MHC (M) Jagdish vide RC No. 160/21 and deposited the same at CFSL Chandigarh for analysis.
Sh. K. C. Varshney examined the contents of a sealed parcel pertaining to FIR No. 39/99 and on analysis submitted report that a country made pistol was not in working order, required repair of the mechanism to bring it in the working order and that cartridge Ex.A-1 was found to be alive. In this respect, report was also prepared by the expert witness.
On completion of investigation, challan was put in -:7:- court.
Charge Prima facie case having been made out, charge for offences U/s. 307 read with Section 34 IPC, 353 read with Section 34 IPC and 186 read with Section 34 IPC was framed against all the four accused, on 15.11.2000. Separate Charge for an offence U/s. 27 of the Arms Act was framed against Devender accused for his having used firearm for unlawful purpose i.e. in firing at the police party. Since, the accused persons pleaded not guilty and claimed trial, prosecution was called upon to lead evidence. Prosecution Evidence In order to prove its case, prosecution examined following 12 witnesses:
PW1 HC Raj Kumar has been examined to prove FIR Ex. PW1/A, Ex. PW1/B and Ex. PW1/C. PW2 HC Rajinder Singh, PW3 HC Jal Singh, PW4 ASI Bansi Lal, PW5 SI Bhagwan Singh, PW7 Inspector O.P. Yadav, PW11 Constable Raja Ram and PW12 Constable Daljeet have deposed about the manner in which occurrence took place.
PW6 Constable Hori Lal and PW10 HC Jagdish -:8:- have deposed about deposit of case property and dispatch of sealed parcels.
PW9 Sh. K.C. Varshney, Ballistic Expert, has been examined to prove report Ex. PW9/A. PW8 Sh. Satish Golcha, the then ACP (North West district) has been examined to prove sanction Ex. PW8/A for prosecution of accused and also complaint Ex. PW8/B U/s. 195 CrPC.
Defence Evidence
When examined U/s. 313 CrPC, accused
persons denied all the incriminating circumstances appearing in evidence against them. However, they opted not to lead evidence in defence.
Arguments heard. File perused.
Occurrence is alleged to have taken place on 07.02.1999 at 05:45 p.m. near Harevli Crossing within the jurisdiction of P.S. Narela. Devender (accused) is alleged to have opened fire at the police party headed by Inspector Om Prakash Yadav. Main stay of prosecution is on the statements of PW2 Head Ct. Rajender Singh, PW-3 Head Ct.
Jal Singh, PW-5 SI Bhagwan Singh, PW-7 Inspector Om Prakash Yadav, PW-11 Ct. Raja Ram and PW-12 Ct. Daljeet. -:9:-
While appearing in court as PW-2 Head Ct.
Rajender Singh deposed that on 07.02.99 DD No.15A was recorded at P.S. Narela and thereupon he accompanied by Inspector Om Prakash Yadav, SI Bhagwan Singh, Head Ct. Jal Singh and Ct. Rakesh, reached about 100 yards ahead Hareveli Crossing and at about 05:45 p.m, they saw four youth coming from the side of Village Harevli. On seeing the police party, the aforesaid four persons left the main road, went down towards the fields and tried to hide themselves behind a Kotha. SI Bhagwan Singh then shouted at the aforesaid boys whereupon one of them fired at the police party and thereafter all the four boys again started running towards the fields. They were chased and apprehended. The witness then deposed as to which of the accused was apprehended by which of the member of the police party. Then he deposed about recovery of a loaded country made pistol from Rakesh accused and a country made pistol from Jaiveer accused. According to the witness, he overpowered Jaiveer accused with the help of Ct. Daljeet. He further deposed about the investigation conducted in respect of country made pistol from Jaiveer accused.
PW-3 Head Ct. Jal Singh also deposed about -:10:- receipt of DD No.15A, their arrival about 100 yards towards village Harevli, their having noticed four young persons coming from the opposite direction; that the aforesaid young persons got down from the main road, went towards the fields and tried to hid behind a Kotha. He also deposed that one of the aforesaid persons opened fire at the police party and started running towards the fields. It is also in his statement that he with the help of Ct. Rakesh Kumar overpowered accused Rakesh and recovered from his possession a country made pistol. The witness also deposed about arrest of the other three accused by other members of the party. He also deposed about the investigation conducted regarding recovery of a country made pistol from Rakesh accused.
PW-5 SI Bhagwan Singh made statement in line with the statement of PW-2 Head Ct. Rajender Singh and PW-3 Head Ct. Jal Singh regarding their departure towards Harevli Crossing, their arrival on the main road of Harevli Crossing at about 05:45 p.m. in Government vehicle bearing no. DL-1V-3565 and they having travelled upto a distance of 100 yards towards Harevli Crossing, where they noticed all the four accused. The witness further deposed that on -:11:- seeing the police party the four accused ran towards fields and tried to hide themselves behind a Kotha. Then he deposed to have chased the accused persons with the staff. It is in his statement that one of the accused namely Devender opened fire at the police party but they continued chasing them. He then deposed to have apprehended Devender accused from his back; about arrest of other three accused; and about writing work done by him in respect of recovery of pistol and cartridge and an empty. He also deposed about dispatch of ruqqa Ex.PW-5/C from the spot to the Police Station through Ct. Raja Ram and registration of main case FIR No. 38/99.
Then there is statement of Inspector Om Prakash Yadav, who organised the raiding party and reached Harevli Crossing. According to PW-7 on 07-02-99 on seeing them, the four boys coming from the side of Harevli near Harevli Crossing, ran towards the back side of a kotha and tried to hide themselves. He further deposed to have pounced upon those four boys. At that time Devender accused one of the four boys opened fire at the police party. The witness then deposed about arrest of the other three accused persons and recoveries of fire arm and ammunition.
-:12:-
PW-11 Ct. Raja Ram and PW-12 Ct. Daljeet were also members of the raiding party. They deposed to have accompanied other member of the raiding party to Harevli Crossing and having noticed all the four accused coming from the side of Haryana towards Delhi, and that on seeing them accused persons tried to run backwards and also to hide themselves behind a kotha. It is also in their statements that one of the accused opened fire at the police party and that all the accused persons were then apprehended. Both of them also deposed about arrest of the four accused. Then they deposed about proceedings conducted at the spot. PW11 Ct. Raja Ram also deposed about his having taken ruqqa from the spot to the Police Station and got the case registered.
While referring to the statements of the aforesaid statements of the witnesses learned defence counsel argued that these statements are in contradiction with each other on material aspects and that no reliance should be placed thereon when there is no corroboration from independent source and no effort was made by the Investigating Officer to associate anyone from the public soon after their departure from the Police Station in search of the four boys or at the -:13:- spot.
Learned defence counsel also argued that prosecution has failed to establish on record beyond doubt that any incident of firing at the police party took place on 07.02.1999 and as such no case for an offence u/s 307 IPC can be said to be proved against the accused. It has also been argued that prosecution has failed to place on record any material to show that members of the police party were proceeding towards Harevli Crossing in connection with discharge of their official duty or that they were prevented or obstructed by any of the accused in discharge of their official duty.
Sh. Rajesh Sharma, learned Amicus Curiae for Jaiveer accused has also referred to the prosecution evidence and argued that when all the prosecution witnesses are in contradiction with each other on material aspects of the case and there is no corroboration from independent source, no reliance can be placed on the statements of the official witnesses.
Case of prosecution, as noticed above is that the raiding party started from the Police Station at about 05:30 p.m. on 07.02.1999 in official vehicle no. DL1V-3565. In this -:14:- respect prosecution has placed on record DD No.15A (Ex.PW11/A). Number of the vehicle i.e. DL-1V-3565 stands recorded in Ex.PW-11/A However, DD entry Ex.PW-15/A does not indicate as to who was driving the aforesaid vehicle when the raiding party started for village Harevli immediately after receipt of the secret information.
A perusal of statements of prosecution witnesses would reveal that they have made contradictory statements on the point of driver of the aforesaid vehicle. According to PW-2 Head Ct. Rajender Singh, the pick up van was being driven by Ct. Rakesh. PW-3 Head Ct. Jal Singh deposed in line with the statement of PW-2 in this regard. But PW-7 Om Prakash Yadav deposed that Ct. Daljeet Singh drove the vehicle upto Harevli Crossing and from there he took over the vehicle from the constable and himself drove it. PW-11 constable Raja Ram deposed that the vehicle was a Gypsy vehicle and being driven by Ct. Rakesh. Had the vehicle been driven by constable Daljeet Singh from the Police Station to Harevli Crossing all the PWs other than PW7 would have stated so before the court. But as noticed above, according to the other witnesses the vehicle was being driven by Ct. Rakesh. None of them deposed that the vehicle was -:15:- driven by the SHO himself from Harevli Crossing to the place of occurrence. This is a major contradiction in the statements of the prosecution witnesses and puts the court on guard to scrutinize their statements with more care and caution, particularly when neither any log book of the vehicle nor any entry from any such log book of the said vehicle has been placed on record in support of the version of prosecution that the raiding party travelled in this vehicle on 07-02-99 from the Police Station upto the spot, and also because there is no corroboration from independent source.
It is well settled that statements of official witnesses cannot be brushed aside simply because of their official status but non joining of witnesses from the public puts the court on guard to carefully scrutinize statements of police officials so as to rule out possibility of false implication of accused or concoction of facts. In this case, as noticed above, no one from the public joined prior to the occurrence or at the time of apprehension of the accused persons or recoveries from their possession. Accused persons were apprehended at about 05:45 p.m. and investigation is stated to have been conducted at the spot till 08:45 p.m. PW-4 ASI Bansi Lal, who took up investigation of the case after its -:16:- registration, admitted in his cross examination to have not requested anyone to become a witness or to accompany him to the spot. It is in his statement that father of Arun Kumar accused was summoned to the spot and informed about his arrest at about 08:30 p.m. PW-5 SI Bhagwan Singh stated in his cross examination that people were passing on the road by the side of the Kotha but no one was joined in the investigation. Even PW-11 Ct. Raja Ram admitted in his cross examination that many persons from the public were passing on the road while they were present at the spot. In the given situation, absence of corroboration from independent source and non joining of witnesses from the public, call for strict scrutiny of the statements of prosecution witnesses.
Case of prosecution, as noticed above, is that on seeing the police party Devender accused opened fire at the police party from a country made pistol and that thereafter Devender and his three companions started running towards the fields, but they were chased and apprehended. When fire is opened at a police party, generally either the Incharge of the Police Party himself or under his directions, any other member of the party would fire in retaliation, to save -:17:- themselves or apprehend the assailant, but this is a case where the prosecution witnesses want the court to believe that there was no retaliation from their side even after shot was fired by Devender accused at them. It is not a case where the members of the police party were not armed with service weapons. PW-2 Head Ct. Rajender Singh has admitted in his cross examination that he was having a revolver. He further admitted that even SI Bhagwan Singh was also having a revolver. He could not tell as to whether any other member of the police party was carrying any service weapon. On the other hand, PW-3 Head Ct. Jal Singh deposed that except him all members of the party were having their service revolvers. PW-7 Inspector O.P. Yadav went on to state that all the members of the party, except him, were equipped with service weapons. He specifically stated that other members of the party had collected service weapons from the Maalkhana, without his permission.
From the above evidence available on record, it stands established that the prosecution witnesses have made contradictory statements regarding availability of service weapons with them at the time of occurrence. But most of them have deposed that service weapons were available with -:18:- them. However, there is nothing on record to suggest that any of the member of the police party tried to retaliate the fire. All this creates a doubt if any shot was fired by any of the accused at the police party.
It is case of prosecution that from the right side pocket of pant of Devender accused, two live cartridges were also recovered. This goes to show that Devender accused was in a position to fire two more shots at the police party. Even Rajesh accused is stated to have been found in possession of a countrymade pistol and one live cartridge. If Devender accused could open fire at the police party, there is no explanation as to what prevented Rajesh accused in opening fire at the police party when he too was armed with a country made pistol and a live cartridge and as such was in a position to attack the police party. This further makes the version narrated by the prosecution witnesses doubtful regarding opening of fire at the police party headed by Inspector Om Prakash Yadav.
A perusal of rough site plan Ex.PW-4/A depicting the place of occurrence would reveal that ASI Bansi Lal has depicted therein only two points i.e. points A & B. Point A depicts the place where the persons were apprehended -:19:- whereas point B depicts the place where the accused persons are alleged to have opened fire at the police party. It is in the cross examination of PW-2 Rajender Singh that Jaiveer accused was apprehended at a distance of 10/15 steps from the kotha; that Jaiveer was at a distance of 10 steps from Rakesh accused; that Arun accused was 10/20 paces from Jaiveer accused. According to PW-3 Head Ct. Jal Singh, Rakesh accused was at a distance of 50/60 yards from him but in the next breath PW-3 deposed Rakesh was about 200 yards from the kotha when he was arrested; that Devender accused was 50/60 yards where PW3 apprehended Rakesh; and that Jaiveer was apprehended at a distance of 200 yards from Devender accused. Further according to him, Jaiveer was at a distance of 50/60 yards from Arun accused. This goes to show that all the four accused persons were not apprehended from the same place. As per prosecution version, the accused persons were apprehended by different members of the police party. Head Ct. Rajender Singh and Ct. Daljeet apprehended Jaiveer accused; Head Ct. Jal Singh and Ct. Rakesh apprehended Rakesh accused; SI Bhagwan Singh apprehended Devender accused and Ct. Raja Ram -:20:- apprehended Arun accused. In view of all this, it can safely be said that rough site plan Ex.PW-4/A depicting the place of apprehension of all the accused is not in consonance with the version narrated by prosecution witnesses.
As noticed above, only Devender accused opened fire at the police party, but in the rough site plan Ex.PW-4/A, point B has been depicted as the place where all accused persons are stated to have opened fire at the police party. The marginal note depicting point B does not say that shot was fired only by Devender accused. So point B is also not in consonance with the version narrated by the prosecution witnesses.
Case of prosecution is that all the four accused persons were arrested in presence of Inspector O.P. Yadav, after Devender accused opened fire at the police party and firearm and ammunition was recovered from Devender, Jaiveer and Rajesh whereas Arun accused was captured empty handed. As per version narrated by the prosecution witnesses, SI Bhagwan Singh is also stated to have apprehended Devender accused, recovered from his possession one country made pistol loaded with one empty cartridge. The country made pistol was recovered from the -:21:- right hand of Devender accused. Further, according to PW5, from the right side pocket of pant of Devender accused, two live cartridges were also recovered. According to PW5, he prepared rough sketch Ex.PW5/A depicting the country made pistol, the empty and the live cartridges, turned them into a parcel, sealed the parcel with the seal bearing impression "BS" and then seized the same vide memo Ex. PW5/B bearing attestation of Constable Raja Ram. From this attestation of the two documents by Constable Raja Ram, it transpires that this writing work regarding seizure of country made pistol, the empty and the two live cartridges and the process of turning them into a parcel was done in presence of Constable Raja Ram.
When we advert to the statement of PW11 Constable Raja Ram, it would transpire that he apprehended Arun accused and also went to the police station with ruqqa for registration of the case. According to PW11, a country made pistol was recovered from Devender accused when apprehended by SI Bhagwan Singh. He further deposed about recovery of two live cartridges and one fire cartridge from Devender. PW11 did not state that the country made pistol was recovered from the "right hand" of Devender -:22:- accused. He also did not state that the country made pistol was found containing an empty. From his statement, it appears to be his version that the two live cartridges and fire cartridge were recovered from the "left side" pocket of the pant of Devender accused. Thus, statement of PW11 is not in consonance with the statement made by PW5 SI Bhagwan Singh.
Furthermore, there is nothing in recovery memo Ex. PW5/B that after sealing the parcel containing the country made pistol, the two live cartridges and the empty, the seal was handed over by SI Bhagwan Singh to Constable Raja Ram. Even PW11 Constable Raja Ram did not state about entrustment of seal to him by SI Bhagwan Singh after the firearm, ammunition and the fire cartridge were sealed. Non- entrustment of seal by SI Bhagwan Singh to Constable Raja Ram creates a doubt about tampering with the case property.
Even presence of Constable Raja Ram on the given date, time and place has become doubtful when PW-11 stated that SHO remained at the spot till 9.30/9.45 p.m. On the other hand, PW5 SI Bhagwan Singh deposed that the SHO remained at the spot only till 6.40p.m. though other members of the party remained at the spot till 9 p.m. It is -:23:- case of prosecution that Constable Raja Ram left the spot with ruqqa at about 7.05 p.m. and returned to the spot with copy of FIR at 7.45 p.m. Had the SHO left the spot in presence of Constable Raja Ram i.e. at 6.40 p.m, the Constable (PW11) would not have deposed that SHO remained at the spot with them till 9.30/9.45 p.m. In this respect, when we advert to statement of PW7 Inspector O.P. Yadav, SHO, it would transpire that he stated to have remained at the spot only for 10 minutes, after apprehension of the accused persons. As per prosecution version, the accused persons were apprehended at 5.45 p.m. As per statement of PW7 Inspector O.P. Yadav, he remained at the spot only till 6 p.m. Thus, statement of PW7 is not in consonance with the statements of PW5 SI Bhagwan Singh and PW11 Constable Raja Ram. It may be mentioned here that none of the documents prepared at the spot were attested or prepared by the SHO (PW7). PW7 has admitted this fact in his cross examination. He even admitted to have not informed any senior police officer about opening of fire at the police party. It is in his statement that wireless set was available in the vehicle. Generally, in case of opening of attack at the police party by some assailants, message is -:24:- flashed to senior police officers. But, in this case, the SHO wants the court to believe that no information was passed on to the senior police officers from the spot regarding the incident of fire at the police party. As noticed above, no logbook of the vehicle, in which the police party is stated to have travelled to the spot from the police station, has been placed on record. All this makes presence of the prosecution witnesses on the given date, time and place further doubtful.
Jaiveer accused was apprehended by PW2 HC Rajinder and Constable Daljit. Separate case was got registered against Jaiveer accused regarding recovery of the country made pistol and cartridge from his possession, vide FIR No. 39/99. According to PW2 HC Rajinder Singh, Jaiveer accused was found in possession of a country made pistol. He further deposed that there was a live cartridge and that he turned the country made pistol and the cartridge into a parcel and sealed it with the seal bearing impression "RS" and then seized the parcel vide memo Ex. PW2/B. Constable Daljit has appeared in court as PW12. According to him, Jaiveer accused was apprehended by him and HC Rajinder Singh. Further, according to him, Jaiveer accused was found in possession of a country made pistol -:25:- loaded with a live cartridge. It is also in his statement that HC Rajinder conducted proceedings in respect of the country made pistol Ex P1.
A perusal of rough sketch Ex. PW2/A would reveal that it depicts only a country made pistol. The sketch does not depict any sketch of a cartridge. Had any cartridge been recovered from Jaiveer accused, HC Rajinder Singh would not have omitted to prepare its sketch as well. Non- preparation of any sketch of the cartridge creates doubt about recovery of any cartridge from Jaiveer accused.
In the recovery memo Ex. PW2/B, it stands recorded that after the country made pistol and the cartridge were turned into a parcel, the parcel was sealed with the seal bearing impression "RS" and the seal was handed over to Constable Daljit Singh. However, while appearing in court as PW2, HC Rajinder Singh did not depose about factum of entrustment of seal to Constable Daljit Singh. Even PW12 Constable Daljit Singh nowhere deposed about factum of entrustment of seal to him by HC Rajinder Singh. From all this, it becomes doubtful if Constable Daljit Singh was present at the time of arrest of the accused persons and recoveries from their possession. In this way, prosecution -:26:- has also failed to rule out possibility of tampering with the case property.
As per prosecution version, Rajesh accused was apprehended by HC Jal Singh and Constable Rakesh and from his possession one country made pistol and a live cartridge were recovered. PW3 HC Jal Singh deposed about factum of recovery of country made pistol from Rakesh accused. He further deposed that on unloading the country made pistol, live cartridges were recovered therefrom. Then he deposed about preparation of sketches of the country made pistol and the cartridges, which are Ex. PW3/A and Ex. PW3/B. He also deposed that country made pistol and the live cartridges were turned into a parcel and sealed with the seal bearing impression "JSV" and then seized vide emo Ex. PW3/C. It may be mentioned here that prosecution has not examined Constable Rakesh, the attesting witness of the sketches Ex. PW3/B and Ex. PW3/C. PW3 HC Jal Singh nowhere stated that after use, he handed over the seal to constable Rakesh. He did not depose about factum of entrustment of Seal to Constable Rakesh Kumar, while making his statement in chief examination. It was only in his -:27:- cross examination recorded on 25.08.2000, that HC Jal Singh deposed about entrustment of seal to Constable Rakesh Kumar. As noticed above, despite opportunity, the investigating officer failed to associate anyone from the public.
As noticed above, PW-3 Head Ct. Jal Singh deposed that the vehicle, in which they were travelling on that date, was being driven by Constable Rakesh. However, this statement of PW-3 stands contradicted by the statement of PW-7 Inspector O. P. Yadav who deposed that it was constable Daljeet Singh who drove the official vehicle upto Harveli Crossing and thereafter he (Inspector) took over the vehicle from him and drove it.
Statement of PW-3 Head Ct. Jal Singh is also not in consonance with other witnesses when he deposed that except him, all the members of the party were having their service revolvers. On the other hand, PW-2 Head Ct. Rajender Singh deposed that he (PW-2) himself and PW SI Bhagwan Singh were having revolver. PW-2 did not state that any other member of the party was carrying any service weapon.
Case of prosecution is that Rakesh accused was -:28:- apprehended by PW-3 Head Ct. Jal Singh and Ct. Rakesh and that a country made pistol loaded with one live cartridge was recovered from his possession.
Case of prosecution is that ruqqa of the main case i.e. u/s 307 IPC was sent from the spot through constable Raja Ram at about 07:05 p.m., by SI Bhagwan Singh. It is also case of prosecution that case FIR No. 39/99 came to be registered on the basis of ruqqa sent by Head Ct. Jal Singh from the spot through Ct. Rakesh Kumar. Ruqqa of case FIR No. 38/99 is stated to have been dispatched from the spot at 07:05 p.m; that of FIR No. 39/99 at 07:10 p.m; that of FIR No. 40/99 at 07:15 p.m. All this goes to show that three constables are stated to have left the spot within ten minutes of the dispatch of the first ruqqa. There is no explanation as to why separate cases under the Arms Act were got registered by sending separate ruqqas. It also remains unexplained as to why three constables were sent from the spot to the Police Station, one after the other within duration of 15 minutes. Furthermore, PW-3 Head Ct. Jal Singh stated in his cross examination that no one other than the person who took ruqqa, left for the Police Station. This fact makes the presence of Head Ct. Jal Singh on the time -:29:- and place highly doubtful and at the same time creates a doubt about the entire version put forth by the prosecution regarding arrest of the accused persons and recoveries from them in the manner narrated by them.
Arun accused is stated to have been apprehended by constable Raja Ram. Ct. Raja Ram stepped into the witness box as PW-11. According to PW-11 nothing incriminating was recovered from Arun accused. While deposing about recovery from Devender accused, PW-11 made statement in contradiction with statements of other witnesses as according to PW-11, two live cartridge were recovered from the "left side" pocket of pant of Devender accused whereas according to other PWs two live cartridges were recovered from his "right side" pocket of pant. PW-11 also deposed about recovery of fired cartridge from the left side pocket of pant of Devender accused whereas according to other witness fired cartridge was recovered from country made pistol found in possession of Devender accused. This material contradiction creates doubt about presence of PW11 Ct. Raja Ram on the given date, time and place. Furthermore, according to Head Constable Rajender Singh, Head Ct. Jal Singh, SI Bhagwan Singh, Inspector O. P. -:30:- Yadav left the spot after sometime of the arrest and recoveries. On the other hand, PW-11 Ct. Raja Ram wants the court to believe that the SHO remained at the spot till 09:30/09:45 p.m. As regards the vehicle, in which the members of the police party travelled upto the spot, PW-11 deposed that Gypsy remained with them till 09:45 p.m. but as per statements of other witnesses the SHO left the spot in that Gypsy after about ½ an hour of the arrest and recoveries. This material contradiction further creates doubt in the version narrated by PW-11 Ct. Raja Ram, regarding his presence on the given date, time and place. In his cross examination, PW-11 Ct. Raja Ram deposed that he attested 7/8 papers at the spot. A perusal of recoveries memo Ex.Pw- 5/B, rough sketch Ex.PW-5/A and rough site plan Ex.PW-4/A, regarding recoveries from Devender accused, would reveal that all these documents bears attestation of constable Raja Ram. But as per prosecution version, PW-11 Ct. Raja Ram, apprehended Arun accused when Arun accused is alleged to have been apprehended by PW-11 Constable Raja Ram. It is not believeable that he witnessed recovery from the possession of Devender accused by SI Bhagwan Singh. -:31:- Conclusion In view of the above discussion, when there are material contradictions in the statements of prosecution witnesses as discussed above, and presence of the witnesses on the given date, time and place has been found to be doubtful and the version narrated by prosecution witnesses regarding the incident of firing at the police party is also not free from doubt, this court has no option but to order for acquittal of accused persons namely Jaiveer Singh, Arun Kumar and Rakesh. I order accordingly.
File be consigned to record room u/s 299 Cr.P.C. so far as Devender accused (since proclaimed offencer) is concerned.
Announced in Open Court on Dated: 01st of August 2007 [NARINDER KUMAR] Additional Sessions Judge Fast Track Court: Rohini: Delhi 01-08-2007