Delhi District Court
State vs . (1). Rahul @ Kala on 17 January, 2017
FIR No. 40/14; U/s 307/186/353/34 IPC & 25/27 Arms Act; P.S. Crime Branch(Nehru Place) D.O.D.: 17.01.2017 IN THE COURT OF SHRI VIDYA PRAKASH: ADDL. SESSIONS JUDGE04 (NORTH): ROHINI COURTS: DELHI Session Case No. 57332/16 State Vs. (1). Rahul @ Kala S/o Late Sh. Narender Kumar R/o H.No. 193, Village Sultanpur Dabas, Delhi. (2). Ravi @ Munia S/o Late Sh. Har Kishan R/o Village Barona Tehsil Kharkhoda District Sonepat, Haryana. FIR No. : 40/14 Police Station : Crime Branch (Nehru Place) Under Sections : 307/186/353 IPC & 25/27 Arms Act Date of committal to Sessions Court : 07.07.2014 Date on which judgment was reserved: 04.01.2017 Date on which Judgment pronounced : 17.01.2017 JUDGMENT
BRIEF FACTS OF THE CASE
1. The case of the prosecution as mentioned in the chargesheet is as under:
(i). That on 15.04.2014, at about 4.15 am, secret information was received by SI Deepak Malik (PW8) that both these accused were State V/s Rahul @ Kala etc. ("Convicted") Page 1 of 25 FIR No. 40/14; U/s 307/186/353/34 IPC & 25/27 Arms Act; P.S. Crime Branch(Nehru Place) D.O.D.: 17.01.2017 members of Neeraj Bawania and Naveen @ Bali gang and they would come in Swift Car white colour bearing registration number HR05AD6077 between 6.007.00 am near Village Pooth Khurd and if raid is conducted, they could be apprehended. SI Deepak Malik informed the contents of secret information to Inspector Vijay Rastogi who directed him to prepare raiding party and to conduct the raid. Accordingly, raiding party consisting of police officials namely ASI Baljit (PW10), HC Karan Pal, HC Ramesh, HC Jai Singh, Ct. Ashok Kumar (PW 12), Ct. Rajiv Raghav, Ct. Ravi Khari (PW6), Ct. Anand Pal, Ct. Pardeep, Ct.
Gopal Krishan, HC Satish Kumar (PW11) and Ct. Vinay Kumar and SI Deepak Malik was prepared and they all left for the place of information vide DD no. 25 (Ex.PW8/A). Four passersby were asked to join the raiding party after sharing the contents of secret information with them but they all left without disclosing their names and addresses. At the instance of secret informer, driver of Swift Car No. HR05AD 6077 was made to stop the said car. The police officials gave the introduction to both the accused who were asked to surrender themselves but instead of surrendering themselves, both the accused, who were armed with pistols, fired bullets towards the police officials. The police officials escaped unhurt and managed to apprehend both the accused persons and also snatched pistols from their possession;
State V/s Rahul @ Kala etc. ("Convicted") Page 2 of 25FIR No. 40/14; U/s 307/186/353/34 IPC & 25/27 Arms Act; P.S. Crime Branch(Nehru Place) D.O.D.: 17.01.2017
(ii). SI Deepak Malik checked both the pistols which were found containing three live cartridges and four live cartridges respectively. He carried out relevant proceedings with regard to recovered arms and ammunition by preparing their rough sketches, sealed pullandas and seizure thereof. He also seized the Swift Car and prepared rukka and got the FIR registered through Ct. Ashok;
(iii). It is further the case of prosecution that the investigation was entrusted to SI Sukram Pal (PW9) who prepared rough site plan at the instance of SI Deepak Malik and also recorded his statement. SI Deepak Malik had handed over all the memos, sealed pullandas, Swift car and custody of both the accused to SI Sukram Pal, who lifted the relevant exhibits i.e. empty cartridge shells from near the scene of crime, arrested both the accused persons and recorded their disclosure statements; and
(iv). It is further the case of prosecution that during investigation, IO SI Sukhram Pal got the relevant exhibits deposited in FSL Rohini and after collecting the ballistic result, he obtained sanction U/s 39 Arms Act from DCP Crime Branch. ACP concerned also made complaint U/s 195 Cr.PC and filed the same before the Court of CMM. IO had also recorded the statements U/s 161 Cr.P.C. of the relevant witnesses. After completion of investigation, chargesheet was filed before the Court of Ld. M.M. State V/s Rahul @ Kala etc. ("Convicted") Page 3 of 25 FIR No. 40/14; U/s 307/186/353/34 IPC & 25/27 Arms Act; P.S. Crime Branch(Nehru Place) D.O.D.: 17.01.2017
2. After compliance of section 207 Cr.P.C., the case was committed to the Court of Sessions and was assigned to Ld. Predecessor of this Court.
CHARGES FRAMED AGAINST THE ACCUSED PERSONS
3. After hearing arguments on the point of charge, Court framed the charge in respect of offences punishable U/s 186/353/307/34 IPC and separate charge in respect of offences punishable U/s 25/27 Arms Act against both the accused persons vide order dated 05.08.2014, to which they pleaded not guilty and claimed trial.
4. In support of its case, prosecution has examined as many as twelve witnesses namely PW1 HC Jag Narain, PW2 ASI Gopal Singh, PW3 Sh. Puneet Puri, PW4 ACP Sh. Sanjeev Kumar Tomar, PW5 Sh. Bhisham Singh, PW6 Ct. Ravi Khari, PW7 Sh. Gangandeep Singh, PW8 SI Deepak Malik, PW9 SI Sukram Pal, PW10 ASI Baljeet, PW11 HC Satish Kumar and PW12 Ct. Ashok Kumar, during trial.
5. It may be mentioned here that both the accused persons made joint statement during trial on 28.09.2015 that they were not disputing the identity of Swift Car bearing registration no. HR05AD6077and its production was not required before the Court during further trial.
6. Thereafter, statements U/s 313 Cr.P.C. of both the accused persons were recorded, during which all the incriminating evidence were put to them which they denied. The defence of both the accused persons is State V/s Rahul @ Kala etc. ("Convicted") Page 4 of 25 FIR No. 40/14; U/s 307/186/353/34 IPC & 25/27 Arms Act; P.S. Crime Branch(Nehru Place) D.O.D.: 17.01.2017 of general denial. Both the accused claimed that they have been falsely implicated in this case. However, both the accused persons did not wish to lead Defence Evidence.
7. I have heard Sh. Pankaj Bhatia, Ld. Addl. PP on behalf of State and ld. counsel Sh. Nitin Vashisht, Adv. for both accused persons. I have also gone through the material available on record.
8. Before discussing the rival submissions made on behalf of both the sides, it would be appropriate to discuss, in brief, the testimonies of prosecution witnesses examined during trial. The testimonies of prosecution witnesses is detailed as under: PUBLIC WITNESSES:
9. Sh. Gagandeep Singh: He is the registered owner of Swift Car bearing registration no. HR05AD6077. He has released the said car on superdari vide superdarinama Ex. PW7/A and has also proved copy of its RC as Ex. PW7/B. Nothing material has came on record during cross examination.
POLICE WITNESSES:
10. PW1 HC Jag Narain: This witness was posted as MHC(M) in PS Crime Branch during the relevant period. He deposed that on 15.04.2014, SI Sukram Pal (IO) had deposited four sealed pullandas out of which two pullandas were sealed with the seal of SP and remaining two State V/s Rahul @ Kala etc. ("Convicted") Page 5 of 25 FIR No. 40/14; U/s 307/186/353/34 IPC & 25/27 Arms Act; P.S. Crime Branch(Nehru Place) D.O.D.: 17.01.2017 pullandas were sealed with the seal of BSA besides one car i.e. Maruti Swift Car bearing no. HR05AD6077 alongwith key, RC, Stepeny and stereo, in Malkhana vide entry at serial no. 1989 in register no. 19. He proved copy thereof as Ex.PW1/A. He further deposed that on 24.04.2014, all the exhibits of the case were sent to FSL, Rohini vide RC no. 126/21/14 through Ct. Ashok Kumar. He proved copy of said RC as Ex.PW1/B. He also proved copy of acknowledgment as Ex.PW1/C. Nothing material has came on record during cross examination of this witness.
11. PW2 ASI Gopal Singh:This witness was working as Duty Officer in PS Crime Branch on 15.04.2014. He proved factum regarding registration of FIR in question by him on that day. He proved computerized copy of FIR in question as Ex.PW2/A, Certificate U/s 65B of Indian Evidence Act as Ex.PW2/B and his endorsement on the rukka as Ex.PW2/C. He deposed that thereafter, investigation was entrusted to SI Sukram Pal. He has not been cross examined by accused persons despite grant of opportunity.
12. PW4 ACP Sh. Sanjeev Kumar: This witness has proved complaint U/s 195 Cr.P.C. given by him as ACP, Special Team, Crime Branch, Prashant Vihar, for prosecuting accused persons namely Rahul Dabas @ Kala and Ravi Kumar @ Munia on 11.06.2014. He proved the said complaint as Ex.PW4/A. Nothing material came on record during cross examination of this witness.
State V/s Rahul @ Kala etc. ("Convicted") Page 6 of 25FIR No. 40/14; U/s 307/186/353/34 IPC & 25/27 Arms Act; P.S. Crime Branch(Nehru Place) D.O.D.: 17.01.2017
13. PW5 Sh. Bhisham Singh: He was posted as DCP Crime Branch (South) on 11.06.2014. He deposed that he had accorded sanction U/s 39 Arms Act to prosecute accused Rahul Dabas @ Kala S/o Late Sh. Narender Kumar and Ravi @ Moniya S/o Late Sh. Har Kishan for offence punishable U/s 25 Arms Act after going through the entire police file containing relevant documents including seizure memos of the arms and ammunitions, FSL result given by Ballistic Expert and Statements U/s 161 Cr.P.C. He proved the sanction as Ex.PW5/A. During cross examination, he denied the suggestion that he had accorded sanction Ex.PW5/A without going through any record or FSL results or that said sanction was accorded in mechanical manner.
14. PW6 Ct. Ravi Khari,PW8 SI Deepak Malik,PW10 ASI Baljeet,PW11 HC Satish Kumar, PW12 Ct. Ashok Kumar: All these five witnesses were members of raiding party. All five of them have deposed on identical lines to the effect that on 15.04.2014 at about 4.15 am, secret information was received by PW8 to the effect that both these accused would come in between 6.00 to 7.00 am in Swift car no. HR05AD 6077 in Village Pooth Khurd. Same was shared with all the members of raiding party which was constituted as per directions issued by Inspector Vijay Rastogi. They all left the office of Crime Branch vide DD no. 25 Ex.PW8/A in four private vehicles to the place of information, where PW8 requested 45 passersby to join the raiding party but none agreed and all left the spot without disclosing their names and addresses. As per instructions State V/s Rahul @ Kala etc. ("Convicted") Page 7 of 25 FIR No. 40/14; U/s 307/186/353/34 IPC & 25/27 Arms Act; P.S. Crime Branch(Nehru Place) D.O.D.: 17.01.2017 issued by PW8, all the members of raiding party took their respective positions. At about 6.35 am, HC Ramesh who was one of the members of raiding party, gave signal by blowing horn of his car on seeing above said Swift car coming from the side of Village Pooth Khurd. PW8 gave signal to driver of said car to stop. Both these accused were found sitting in the said Swift car. They further deposed that accused Rahul @ Kala was driving the Swift car whereas accused Ravi @ Munia was sitting on the front seat adjacent to the driver seat of the said car. Both the said accused deboarded from the Swift car. They were asked by the police officials to surrender themselves by giving their introduction that they were officials of Crime Branch of Delhi Police. However, instead of surrendering themselves, both the accused persons fired towards police officials from their respective pistols. Accused Rahul @ Kala fired gun shot towards PW8 whereas accused Ravi @ Munia fired gun shot towards PW11. However, both the police officials escaped unhurt. PW8 alongwith PW6 apprehended accused Ravi @ Kala and also snatched pistol from his possession. PW10 and PW11 apprehended accused Ravi @ Munia and also snatched the pistol from the possession of said accused. Two cartridges were found loaded in the magazine and one cartridge was found loaded in the chamber of pistol recovered from the possession of accused Rahul @ Kala, whereas three cartridges were found loaded in the magazine and one cartridge was found loaded in the chamber of pistol recovered from the possession of accused Ravi @ Munia. Thereafter, PW8 carried out the State V/s Rahul @ Kala etc. ("Convicted") Page 8 of 25 FIR No. 40/14; U/s 307/186/353/34 IPC & 25/27 Arms Act; P.S. Crime Branch(Nehru Place) D.O.D.: 17.01.2017 relevant proceedings including preparation of rough sketches Ex. PW6/A and Ex. PW6/C of recovered arms and ammunition and he also prepared their sealed pullandas, whereafter he seized those pullandas vide memos Ex.PW6/B and Ex.PW6/D. Swift car alongwith its key, RC, Stepney and Stereo were also seized vide memo Ex.PW6/E. Thereafter, PW8 prepared rukka Ex.PW8/B and got the FIR registered through PW12 Ct. Ashok Kumar. Investigation was entrusted to SI Sukram Pal (PW9). They further deposed that after SI Sukram Pal reached at the spot, all the relevant memos, sealed pullandas containing recovered arms and ammunition and the custody of accused persons were handed over to him. They also deposed that IO SI Sukram Pal lifted empty cartridge shell fired by accused Rahul @ Kala and also lifted empty cartridge shell fired by accused Ravi @ Munia from near scene of crime and prepared their rough sketches Ex.PW6/F and Ex.PW6/H respectively. He also prepared sealed pullandas of both the said empty cartridge shells and seized them vide memos Ex.PW6/G and Ex.PW6/J. Both the accused were arrested vide memos Ex.PW6/K and Ex.PW6/N. Both the accused also made disclosure statements Ex.PW6/M and Ex.PW6/P respectively. SI Sukram Pal had also prepared rough sketch Ex.PW6/Q of places of recovery of empty cartridge shells as also the rough sketch Ex.PW6/R of the place from where both the accused were apprehended. All the five witnesses identified pistol of 9 mm and cartridges as Ex. P1 (colly.) being recovered from accused Rahul @ Kala, pistol of 7.65 mm and cartridges as Ex.P2 (colly) being recovered State V/s Rahul @ Kala etc. ("Convicted") Page 9 of 25 FIR No. 40/14; U/s 307/186/353/34 IPC & 25/27 Arms Act; P.S. Crime Branch(Nehru Place) D.O.D.: 17.01.2017 from the possession of accused Ravi @ Munia and the Swit car from its photographs Ex. P8/1 (colly) available on the judicial file.
During their respective cross examination, they admitted that place of occurrence was public place and vehicles were moving on the road but no request was made to any of the persons travelling in those vehicles to join the investigation. None of the members of raiding party sustained any injury during the occurrence. The gun powder residue was not separated from barrel of the pistols and hand wash of the accused persons was also not taken at that time. The place of occurrence was falling under the jurisdiction of PS S.B Dairy but no efforts was made to join the police officials of local PS in the raiding party. No Crime Team was called to lift the chance prints from the car or from the seized weapons.
15. PW9 SI Sukram Pal: He is the second IO of this case. He has also corroborated the statements of police witnesses who were members of raiding party. He deposed that after receipt of copy of DD no.5 Ex PW9/1, he reached the spot and met SI Deepak Malik and other police officials of Crime Branch. SI Deepak Malik handed over the relevant memos, sealed pullandas of case properties, Swift car and custody of both the accused persons. He had prepared rough site plan Ex.PW6/R of the spot at the instance of SI Deepak Malik and also recorded his statement. Thereafter, SI Deepak Malik had left the spot. He had lifted empty cartridge shells fired by accused persons and carried out relevant proceedings about sealing those empty cartridge shells and seizure thereof.
State V/s Rahul @ Kala etc. ("Convicted") Page 10 of 25FIR No. 40/14; U/s 307/186/353/34 IPC & 25/27 Arms Act; P.S. Crime Branch(Nehru Place) D.O.D.: 17.01.2017 He deposed on identical lines in this case as deposed by other police witnesses whose testimonies have already been discussed above. He further deposed that on 26.04.2014, the relevant exhibits were got deposited in FSL Rohini through Ct. Ashok Kumar on 09.06.2014, ballistic result alongwith case property was got collected from FSL Rohini through Ct. Ravi Khari. Thereafter, he obtained sanction U/s 39 of Arms act from concerned DCP and also obtained complaint U/s 195 Cr.P.C. from concerned ACP and filed the said complaint before concerned MM.
During cross examination, he admitted that in DD no. 25 Ex.PW8/A, it was not mentioned that offenders would also carry some weapons with them. He admitted that place of occurrence was public place and vehicles were moving on the said road but he did not request any of the persons travelling in those vehicles to join the investigation. He also did not not take hand wash of the accused persons. He admitted that none of the members of raiding party had sustained injury. Although, he had made enquiry from accused persons about the source from which they had procured the recovered arms and ammunition but he did not record any supplementary disclosure statements in this regard.
SCIENTIFIC EVIDENCE:
16. PW3 Sh. Puneet Puri: He is the ballistic expert who had examined the relevant exhibits in this case. He deposed that four sealed parcels out of which parcels no. 1 & 2 were sealed with the seal of BSA and State V/s Rahul @ Kala etc. ("Convicted") Page 11 of 25 FIR No. 40/14; U/s 307/186/353/34 IPC & 25/27 Arms Act; P.S. Crime Branch(Nehru Place) D.O.D.: 17.01.2017 parcels no. 3 & 4 were sealed with the seal of SP, were received in FSL Rohini. Parcel no. 1 was found containing one improvised pistol of 9 mm bore and three 9 mm cartridges, parcel no. 2 was found containing one improvised pistol of 7.65 mm and four 7.65 mm cartridges, parcel no. 3 was found containing one 7.65 mm cartridge and parcel no. 4 was found containing one 9 mm cartridge. After examining the said exhibits, he found that both the improvised pistols were in working order and test fire were conducted successfully. He prepared his detailed report dt. 28.05.14 as Ex. PW3/A, wherein he opined that both the said pistols were fire arms and the cartridges were ammunition. During cross examination, he admitted that once an ammunition is fired from any firearm, residue would remain inside the barrel of the firearm unless the barrel is cleaned/washed. He also admitted that gun powder /firearm residue remain on hand of the person who uses such firearm unless user washes his hands.
ARGUMENTS ADVANCED AND CASE LAW CITED
17. It has been argued by Ld. Additional PP for the State that all the police witnesses who were members of raiding party and had apprehended both the accused on 15.04.2014, have deposed on the lines of prosecution story and have corroborated each other. He further contended that defence could not impeach the testimonies of said witnesses during cross examination. He further argued that one improvised pistol containing three live cartridges was recovered from the possession of accused Rahul @ State V/s Rahul @ Kala etc. ("Convicted") Page 12 of 25 FIR No. 40/14; U/s 307/186/353/34 IPC & 25/27 Arms Act; P.S. Crime Branch(Nehru Place) D.O.D.: 17.01.2017 Kala and one improvised pistol containing four live cartridges was recovered from the possession of accused Ravi @ Munia at the time of their apprehension in this case. He further submitted that both the said accused had come in Swift car no. HR05AD6077 and said Swift car was also seized in this case. He further argued that both the accused persons had fired gun shot towards police officials who were on duty at that time, during the occurrence instead of surrendering themselves. He also argued that Sanction U/s 39 Arms Act (Ex.PW5/A) has also been accorded by PW5 Sh. Bhisham Singh against both the accused persons. Therefore, the prosecution has been able to establish the charges levelled against the accused persons beyond reasonable doubt. Ld. Additional PP also pointed out that there is a complaint U/s 195 Cr.P.C. proved by prosecution during testimony of PW4 as Ex.PW4/A. Therefore, the prosecution has also been able to prove the offence U/s 186 IPC in this case.
18. Per contra, Ld defence counsel vehemently argued that the prosecution has miserably failed to prove its case against any of the accused beyond reasonable doubt. In support of said submission, Ld. defence counsel submitted that PW7 Gagandeep Singh has failed to support the case of prosecution due to which reason, he was also cross examined at length by Ld. Additional PP for the State.
19. Ld. counsel of accused persons also pointed out certain contradictions appearing on record during testimonies of police witnesses and urged that said contradictions are material contradictions which create State V/s Rahul @ Kala etc. ("Convicted") Page 13 of 25 FIR No. 40/14; U/s 307/186/353/34 IPC & 25/27 Arms Act; P.S. Crime Branch(Nehru Place) D.O.D.: 17.01.2017 reasonable doubt in the case of prosecution due to which benefit of doubt should be given to the accused persons. He further argued that no independent public witness has been joined either in the raiding party or at the time of recovery proceedings carried out at the spot.
20. It is needless to mention here that in order to bring home the charge in respect of offence U/s 186/34 IPC, the prosecution was required to prove the following ingredients:
a). That the complainant and/or any other aggrieved person was / were public servants within the meaning of Section 21 IPC.
b). Said public servants were performing their official duty at the time of incident; and
c). Those public servants were obstructed or prevented from discharging their public functions by the accused persons.
21. In addition thereto, there is also a requirement under the law that complaint in writing of concerned public servant or of some other public servant to whom the complainant/victim is administratively subordinate, shall also be filed before the Court in respect of offence U/s 186 IPC as stipulated by Section 195(1)(a)(i) Cr.P.C. without which no cognizance can be taken by the Court State V/s Rahul @ Kala etc. ("Convicted") Page 14 of 25 FIR No. 40/14; U/s 307/186/353/34 IPC & 25/27 Arms Act; P.S. Crime Branch(Nehru Place) D.O.D.: 17.01.2017
22. In the case in hand, aforesaid two ingredients that PW6, PW8, PW10, PW11 and PW12 were public servants within the meaning of Section 21 IPC and they were performing their official duty at the time of occurrence, are duly satisfied but the last and one of the most important ingredients of the offence that those public servants were obstructed or were prevented from discharging their public duty by any of the accused, is found missing. None of the relevant prosecution witnesses even whispered that any of them was obstructed or was prevented from discharging public functions by the accused herein. In other words, there is no iota of evidence available on record in this regard. Therefore, Court is of the view that prosecution has failed to prove the charge for the offence punishable U/s 186 IPC against the accused persons.
23. Now, I shall discuss about the offence punishable under Section 353/34 IPC. In order to prove the said offence, it was essential for the prosecution to prove the following ingredients:
a). That the complainant and/or any other aggrieved person was / were public servants within the meaning of section 21 IPC;
b). Said public servants were performing their official duty at the time of incident;
c). The accused either assaulted or used criminal force to any of those public servants while he or she was executing his/her duty as such public servant, or with State V/s Rahul @ Kala etc. ("Convicted") Page 15 of 25 FIR No. 40/14; U/s 307/186/353/34 IPC & 25/27 Arms Act; P.S. Crime Branch(Nehru Place) D.O.D.: 17.01.2017 intent to prevent or deter such public servants from discharging the duty.
24. Coming back again to the facts of the present case. As already stated above, the prosecution has been able to prove that the police witnesses i.e. PW6, PW8, PW10, PW11 and PW12 were public servants and were performing their official duties at the time of occurrence, but there is no cogent evidence available on record to show that any of the accused either assaulted or used criminal force to any of the public servants while they were discharging their duties as such public servants or with intent to prevent or deter them from discharging their duty. Rather, it has come on record during cross examination of these witnesses that no hurt whatsoever was caused to any of the members of raiding party. There is no piece of evidence on record showing that any of the accused had used any sort of criminal force against any of those police officials or had any intent to prevent them from discharging their duty. The case of the prosecution as propounded in the chargesheet says that after trap was laid down by members of raiding party, the accused persons who had came in Swift car, were asked to surrender themselves but accused persons tried to flee away and during said process, they fired bullets towards police officials i.e. PW6 Ct. Ravi Khari and PW11 HC Satish but fortunately, both of them escaped unhurt and the police officials managed to overpower both the accused and snatched arms and ammunitions from their possession. That being so, Court is in agreement with the contention raised on behalf of accused State V/s Rahul @ Kala etc. ("Convicted") Page 16 of 25 FIR No. 40/14; U/s 307/186/353/34 IPC & 25/27 Arms Act; P.S. Crime Branch(Nehru Place) D.O.D.: 17.01.2017 persons that prosecution has failed to establish their guilt in respect of offence punishable U/s 353/34 IPC.
25. This brings me down to the offence punishable U/s 307/34 IPC charged against the accused persons. In order to establish the charge in respect of offence U/s 307/34 IPC, the prosecution was required to establish that the accused persons had committed any act with such intention or knowledge and under such circumstances that if by their said act, they would have caused death of any person, they would have been guilty of murder.
26. As already discussed above, the prosecution has examined five witnesses i.e. PW6, PW8, PW10, PW11 and PW12 in order to prove its case for the offence punishable U/s 307/34 IPC. All the said five police witnesses have deposed on identical lines and have supported the case of prosecution on all material aspects. They have duly corroborated each other on all those relevant points. All these five witnesses have consistently deposed that when both the accused were asked to surrender themselves, accused Rahul @ Kala fired bullet towards Ct. Ravi Khari (PW6) but he escaped as the bullet did not hit him. Similarly, accused Ravi @ Monia fired towards HC Satish (PW11) but bullet did not hit the said police official who went unhurt during the attempt of said accused to cause his death. Thereafter, both the said accused were overpowered by the police officials and pistols were snatched from their possession. Said pistols were found loaded with several live cartridges.
State V/s Rahul @ Kala etc. ("Convicted") Page 17 of 25FIR No. 40/14; U/s 307/186/353/34 IPC & 25/27 Arms Act; P.S. Crime Branch(Nehru Place) D.O.D.: 17.01.2017
27. Ld. defence counsel argued that there are material contradictions appearing in the testimonies of police witnesses due to which reasonable doubt is created in the case of prosecution and benefit thereof should be given to the accused persons. The contradictions as pointed out by Ld defence counsel may be summarized as under:
i). PW12 deposed that PW8 SI Deepak Malik had given briefing to the members of raiding party in the compound area of the office of Crime Branch but remaining PWs have deposed that briefing was done in Duty Officer Room;
ii). PW12 Ct. Ashok Kumar deposed that the distance between the office of Crime Branch and the place of occurrence is 1½ - 2 km but PW8 and other police witnesses deposed that the distance was 78 km;
iii). PW2 ASI Gopal Krishan deposed that place of occurrence falls within the jurisdiction of PS Alipur but PW8 deposed that the said area falls within the jurisdiction of PS Shahbad Dairy; and
iv). PW6 Ct. Ravi Khari deposed that secret informer remained with the members of raiding party upto 6.35 am but PW10 ASI Baljeet and PW12 Ct. Ashok Kumar deposed that secret informer remained with them upto 7.30/8.00 am.
28. I have gone through the testimonies of the relevant police witnesses whose testimonies have been referred by Ld defence counsel in order to point out the aforesaid contradictions available on record. All the State V/s Rahul @ Kala etc. ("Convicted") Page 18 of 25 FIR No. 40/14; U/s 307/186/353/34 IPC & 25/27 Arms Act; P.S. Crime Branch(Nehru Place) D.O.D.: 17.01.2017 aforesaid discrepancies as pointed out on behalf of accused persons, are minor in nature and do not go to the root of the case of prosecution so as to throw out the entire case of prosecution on that ground. It is well settled law that minor contradictions which do not affect the basic fabric of the prosecution case, are not fatal and no benefit should be given to the accused on that ground.
29. In the matter titled as "State of H.P. Vs. Lekhraj and Another" reported as JT 1999 (9) SC 43, it was observed by the Hon'ble Supreme Court of India as under: "In the deposition of witnesses there are always normal discrepancy, however, honest and truthful they may be. Such discrepancies are due to normal errors of observations, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence, and the like".
It was further observed in the aforesaid judgment as under: "The traditional dogmatic hypertechnical approach has to be replaced by rational, realistic and genuine approach for administering justice in a criminal trial".
30. I also do not find any merit in the argument raised on behalf of accused that DD no. 25 (Ex.PW8/A) is silent that accused persons were wanted in double murder case or that they would be coming alongwith weapons with them at the given time and place. It needs no emphasis that DD no. 25 was lodged on the basis of secret information received by PW8 SI Deepak Malik. Said DD entry recites the contents of the relevant part of State V/s Rahul @ Kala etc. ("Convicted") Page 19 of 25 FIR No. 40/14; U/s 307/186/353/34 IPC & 25/27 Arms Act; P.S. Crime Branch(Nehru Place) D.O.D.: 17.01.2017 the information received by PW8 from the secret informer. Thus, it cannot be expected from said police official to mention each and every minute details in the said DD entry. There is nothing on record to show that PW8 was duly informed by secret informer that both the accused were wanted in double murder case.
31. Ld defence counsel had also argued that the accused persons have already been acquitted in murder case by Sessions Court. Thus, the case rested by prosecution that both the accused were apprehended on the basis of secret information that they are wanted in double murder case, falls flat on the ground. However, the said argument does not hold any ground for the simple reason that offence of commission of murder has nothing to do with the incident in question. In the present case, the prosecution has alleged that both the accused had fired gun shot towards police officials when police officials had asked them to surrender themselves after giving their introduction that they were police officials of Crime Branch. Thus, acquittal of accused persons in the murder case has no direct bearing or outcome whatsoever on the facts of the present case.
32. There is no force in the contention raised on behalf of accused that for want of gun shot powder residue being seized from barrel of recovered pistols, the case of prosecution has become weak. No doubt, it would have been more appropriate for the relevant police witness i.e. PW8 SI Deepak Malik to seize the gun powder residue which may be available in the barrels of the recovered pistols as well as to take hand wash of the State V/s Rahul @ Kala etc. ("Convicted") Page 20 of 25 FIR No. 40/14; U/s 307/186/353/34 IPC & 25/27 Arms Act; P.S. Crime Branch(Nehru Place) D.O.D.: 17.01.2017 accused persons but having not done so, the entire case of prosecution cannot be thrown away in the light of fact that all the aforesaid five police witnesses have consistently deposed that present two accused had attempted to commit murder of the police officials by firing towards them, when they were asked to surrender themselves before the police.
33. There is no merit in the next argument raised on behalf of accused that since PW6 and PW12 are not shown to have signed any of the memos, their presence at the spot becomes doubtful. It is relevant to note that there were 78 police officials who were part of the raiding party and some of them have signed on the relevant memos. There is no requirement of law that all the members of the raiding party or that all the persons in whose presence memos are prepared in criminal case, would necessarily put their signatures on all the memos.
34. Ld. defence counsel had also argued that no independent public witness has been joined at the time of recovery of arms and ammunitions from the possession of both the accused. Ld. defence counsel, therefore, submitted that non joining of independent public witness is fatal to the case of prosecution and both the accused deserve to be given benefit of doubt on that count. On the other hand, Ld Additional PP pointed out that efforts were made by police officials to join public witnesses in the raiding party but none had agreed and therefore, no benefit should be given to the accused for non joining of independent public witness. He also referred to the relevant portions of testimonies of police witnesses examined during State V/s Rahul @ Kala etc. ("Convicted") Page 21 of 25 FIR No. 40/14; U/s 307/186/353/34 IPC & 25/27 Arms Act; P.S. Crime Branch(Nehru Place) D.O.D.: 17.01.2017 trial for the said purpose.
35. No doubt, no independent public witness has been joined either in the raiding team or at the time of recovery of arms and ammunitions at the instance of accused but relevant recovery witnesses have sufficiently deposed that sincere efforts were made by them to join several passersby in the raiding party after sharing secret information with them, but none agreed and all those public persons left without disclosing their names and addresses.
36. In the matter titled as "State of U.P. Vs. Anil Singh" reported at AIR 1988 SC 1998, it has been held by Hon'ble Apex Court as under: "xxxxxx The case of prostitution is that few independent witnesses were indeed requested to become witness but they did not agree. It is not uncommon these days that people are reluctant to become witness in criminal trial cases. In such circumstances no benefit can be given to the accused for non joining off independent public witnesses. It is a matter of common knowledge that public persons are reluctant to become witnesses of criminal trial. It has been held in a number of judgments by Hon'ble Supreme court and High Courts that merely because public witnesses are not joined in a case, prosecution case cannot be thrown out.
xxxxx"
37. In another matter titled as "Ambika Prasad & anr vs. State"
reported at 2002 (2) CRIMES 63 (SC), it has been held by Hon'ble Supreme Court that it is known fact that independent persons are reluctant to be a witness or to assist the investigation. Reasons are not far to seek. Firstly, in cases where injured witnesses of the close relative of the State V/s Rahul @ Kala etc. ("Convicted") Page 22 of 25 FIR No. 40/14; U/s 307/186/353/34 IPC & 25/27 Arms Act; P.S. Crime Branch(Nehru Place) D.O.D.: 17.01.2017 deceased are under constant threat and they dare not depose the truth before the Court, independent witnesses believe that their safety is not guaranteed. That belief cannot be said to be without any substance. Other reason may be the delay in recording the evidence of independent witnesses and repeated adjournments in the Court. In any case if independent persons are not willing to cooperate with the investigation, prosecution cannot be blamed at and it cannot be a ground for rejecting the evidence of injured witnesses.
38. After considering the testimonies of all the five police witnesses i.e. PW6, PW8, PW10, PW11 and PW12 coupled with the testimony of IO i.e. PW9 SI Sukram Pal, there is no iota of doubt that the prosecution has been successful in establishing on record that both the accused had acted in furtherance of their common intention and both of them attempted to commit murder of police officials i.e. Ct. Ravi Khari (PW6) and HC Satish Kumar (PW11) by firing bullets towards them. This is more so when both the accused persons could not impeach the testimonies of all the said witnesses through litmus test of cross examination. All the relevant prosecution witnesses have successfully withstood the test of cross examination and they remained consistent even during their respective cross examination conducted by defence. Thus, it is held that offence punishable U/s 307/34 IPC has been proved against both the accused persons beyond pales of reasonable doubt.
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39. Now, I shall deal with the offences punishable U/s 25/27 Arms Act charged against the accused persons. For the reasons stated above, it is duly established on record that both the accused were found in possession of improvised pistols and ammunitions.
40. Apart from above, the prosecution has also relied upon the report dated 28.05.2014 of Ballistic Expert. The said report has been proved as Ex.PW3/A by Ballistic Expert. The perusal of said report (Ex.PW3/A) shows that both the pistols recovered from both the accused persons, were found to be in working order and were 'fire arms' as defined in Arms Act. Likewise, all the cartridges sent for examination in FSL Rohini, were also opined to be 'ammunition' as defined in Arms Act. 41.
41. Not only this, the prosecution has also examined PW5 Sh. Bhisham Singh who had accorded sanction U/s 39 Arms Act for prosecuting both the accused for the offence punishable U/s 25 Arms Act. The said sanction has been proved as Ex.PW5/A. Nothing contrary came on record during cross examination of PW5 so as to disbelieve his testimony recorded during trial. It has been duly established in view of the testimonies of aforesaid police witnesses that both the accused had used fire arms during the incident in question. Thus, Court is of the view that prosecution has also been successful in establishing guilt of both the accused persons in respect of offences punishable U/s 25/27 Arms Act beyond shadow of doubt.
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42. In the light of above discussion, both the accused persons namely Rahul @ Kala and Ravi @ Munia are hereby acquitted for the offences punishable U/s 186/353/34 IPC. However, both of them stand convicted for the offence punishable U/s 307/34 IPC as also for the offences punishable U/s 25/27 Arms Act.
Announced in open Court today
On 17.01.2017 (Vidya Prakash)
Additional Sessions Judge04 (North)
Rohini Courts, Delhi
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