Delhi District Court
State vs (1)Ravi S/O Rakesh on 23 January, 2010
Page 1 S/V Ravi etc.
IN THE COURT OF SHRI P.S. TEJI : DISTRICT JUDGE -VI
cum ADDL.SESSIONS JUDGE (EAST), KARKARDOOMA
COURTS, DELHI.
SC No.138/06/04, SC No.137/06, SC No.129/08
FIR No.196/04, 197/04 and 198/04
Police Station Krishna Nagar
Under Section 399/402 IPC &
25/54/59 Arms Act
State Versus (1)Ravi S/o Rakesh
R/o Village Dudaheri, PS Mansurpur
Distt. Muzaffar Nagar, U.P.
(Since Proclaimed Offender)
(2)Sushil Kumar S/o Satish
R/o Village Dudaheri, PS Mansurpur
Distt. Muzaffar Nagar, U.P.
(3)Ikram S/o Pir Baksh
R/o House No.2943, Gali No.20,
Shanti Mohalla, Delhi.
JUDGMENT
The three accused persons, namely, Ravi (Since Proclaimed Offender), Sushil Kumar and Ikram (both on bail) Page 2 S/V Ravi etc. have been sent to face trial by the police of PS Krishna Nagar, for the offences punishable under Section 399/402 IPC and 25/54/59 Arms Act.
2 Vide order dated 12.1.2009 passed by my learned Predecessor, the Arms Act cases, bearing FIR Nos.197/2004 and 198/2004, registered against accused Sushil and Ikram were consolidated with the main case, bearing FIR No.196/2004, for the purpose of recording the statements of the witnesses. 3 Briefly stating, the facts of the prosecution case are that on 3.5.2004, one secret informer came in the police station and informed Inspector Pramod Kumar (PW9) regarding assembling of some accused persons near Maharana Pratap Park and their preparation to commit dacoity. On receiving the said information, the Inspector (PW9) organized a raiding party consisting of secret informer, SI Jaswant Singh (PW3), ASI Mehmood Khan (PW6), HC Vijay Shankar (PW2), Const. Pawan Page 3 S/V Ravi etc. Kumar (PW2 in Arms Act case), Const. Ombir (PW1), Const. Ompal (PW10) and Const. Devender Kumar (PW5) and left the police station on foot for the informed place at about 7.40 PM. The inspector (PW9) and SI Jaswant Singh (PW3) requested four persons to join the raiding party, but none agreed and left the place without disclosing their names and addresses. The aforesaid police party reached near the gents gym at about 8.05 PM. The secret informer pointed out that five persons sitting behind the board of DDA were the same for which he passed on the information to the inspector.
4 The Inspector Pramod Kumar (PW9) instructed SI Jaswant Singh (PW3) to hear the conversation of those persons by hiding himself behind the board of DDA. The SI was also instructed to give the signal by lighting the lighter, after confirming the information given. SI Jaswant Singh (PW3) went accordingly and heard the conversation between those persons and gave the Page 4 S/V Ravi etc. preappointed signal by lighting the lighter. On receiving the signal from the SI, the Inspector (PW9) flashed the search light on those persons and challenged them not to run away or to do any wrong act, as they had been surrounded by the police. On hearing the alarm of the Inspector, the said five boys started running in different directions.
5 SI Jaswant Singh (PW3) with the help of Const. Ombir (PW1) and Const. Devender (PW5) overpowered accused Ravi. ASI Mehmood Khan (PW6) with the help of Const. Ompal (PW10) apprehended accused Ikram, whereas HC Vijay Shankar (PW2) along with Const. Pawan apprehended accused Sushil Kumar. Two persons escaped from the spot by taking the benefit of darkness.
6 SI Jaswant Singh (PW3) conducted the search of accused Ravi. From the right side dub of the wearing pant of the accused Ravi, one country made pistol, Ex.P1 and four live Page 5 S/V Ravi etc. cartridges of .315 bore, Ex.P2/1 to Ex.P2/4 were recovered. There was no cartridge inside the country made pistol. The SI prepared the sketch Ex.PW1/A of the country made pistol and four cartridges. Measurement of the country made pistol and cartridges were taken. The recovered country made pistol and cartridges were kept in a cloth parcel, sealed with the seal of JS and taken into possession vide seizure memo Ex.PW1/B. The seal after use was handed over to Ct. Ombir (PW1). 7 SI Jaswant Singh (PW3) prepared the rukka Ex.PW3/A and sent the same through Const. Devender (PW5) to the police station for the registration of the case. On the basis of rukka, the duty officer ASI Rajender Prasad (PW7) registered the case FIR No.196/04, Ex.PW7/A. The duty officer also made his endorsement Ex.PW7/B on the rukka regarding registration of the case. The further investigation of the case was handed over to SI Chander Pal (PW11). SI Chander Pal (PW11) in the company of Page 6 S/V Ravi etc. Const. Devender (PW5) along with the copy of FIR and the original rukka reached at the spot and at the instance of SI Jaswant Singh (PW3), prepared the site plan Ex.PW11/A. SI Chander Pal (PW11) recorded the statements u/s 161 of Cr.PC of the witnesses. He arrested all the three accused persons, namely, Ravi, Sushil and Ikram vide arrest memos Ex.PW1/C, Ex.PW1/E and Ex.PW1/G. Their personal searches were conducted vide memos Ex.PW1/D, Ex.PW1/F and Ex.PW1/H in case u/s 399/402 IPC. The accused Ravi was also arrested in case u/s 25/54/59 of Arms Act. The SI recorded the disclosure statements Ex.PW11/B to Ex.PW11/D of all the accused persons. The accused persons disclosed the places of Shankar Nagar and Raghuvar Pura where they had already committed the offence and pointed out the same vide memo Ex.PW11/E. 8 The SI deposited the sealed pullanda of country made pistol and cartridges with the MHC(M), HC Babu Ram Page 7 S/V Ravi etc. (PW4) vide entry Ex.PW4/A. The MHC(M) sent the sealed parcel to FSL, Hyderabad on 11.6.2004 through Const. Dayanand (PW8).
9 ASI Mehmood Khan (PW6) conducted the personal search of accused Ikram. From the right side dub of the wearing pant of the accused Ikram, one empty country made pistol, Ex.P3 was recovered. The ASI prepared the sketch, Ex.PW6/A of the country made pistol and also taken its measurement. The recovered country made pistol was kept in a cloth parcel, sealed with the seal of MK and taken into possession vide seizure memo Ex.PW6/B. The seal after use was handed over to Const. Ompal (PW10).
10 Separate case under Section 25 of Arms Act was registered against the accused Ikram as he was found in possession of one country made pistol. ASI Mehmood Khan (PW6) prepared the rukka Ex.PW6/C and sent the same through Page 8 S/V Ravi etc. Const. Ompal (PW10) to the police station for the registration of the case. On the basis of rukka, the duty officer ASI Rajender Prasad (PW7) registered the case FIR No.198/04, Ex.PW7/E. The duty officer made his endorsement Ex.PW7/F on the rukka regarding registration of the case. The further investigation of the case was handed over to ASI Bhagwat Singh (PW12). ASI Bhagwat Singh (PW12) in the company of Const. Ompal (PW10) and along with the copy of FIR and the original rukka reached at the spot and at the instance of ASI Mehmood Khan (PW6), prepared the site plan Ex.PW12/A. ASI Bhagwat Singh (PW12) recorded the statements u/s 161 of Cr.PC of the witnesses. He arrested the accused Ikram vide arrest memo Ex.PW9/A and his personal search was conducted vide memo Ex.PW9/B. 11 The investigating officer ASI Bhagwat Singh (PW12) deposited the sealed pullanda of country made pistol with the MHC(M), HC Babu Ram (PW4). The MHC(M) sent the Page 9 S/V Ravi etc. sealed parcel to FSL, Hyderabad on 11.6.2004 through Const. Dayanand (PW8). The investigating officer moved application, Ex.PW12/B for obtaining the permission u/s 39 of the Arms Act. DCP Ajay Chaudhary (PW13) accorded the sanction, Ex.PW13/A u/s 39 of the Arms Act for the prosecution of accused Ikram under the Arms Act.
12 HC Vijay Shankar (PW2) conducted the personal search of accused Sushil Kumar. From the right side dub of the wearing pant of the accused Sushil Kumar, one button actuated knife, Ex.P4 was recovered. HC Vijay Shankar (PW2) prepared the sketch, Ex.PW1/A (in Arms Act case) of the knife and also took its measurement. The recovered knife was kept in a cloth parcel, sealed with the seal of BS and taken into possession vide seizure memo Ex.PW1/B (in Arms Act case). The seal after use was handed over to Const. Pawan Kumar.
Page 10 S/V Ravi etc. 13 Separate case under Section 25 of Arms Act was
registered against the accused Sushil Kumar as he was found in possession of one button actuated knife. HC Vijay Shankar (PW2) prepared the rukka Ex.PW1/C (in Arms Act case) and sent the same through Const. Pawan (examined as PW2 in FIR No.197/04) to the police station for the registration of the case. On the basis of rukka, the duty officer ASI Rajender Prasad (PW7) registered the case FIR No.197/04, Ex.PW7/C. The duty officer made his endorsement Ex.PW7/D on the rukka regarding registration of the case. The further investigation of the case was handed over to HC Jai Prakash (examined as PW8 in FIR No.197/04). HC Jai Prakash in the company of Const. Pawan (PW2 in Arms Act case) along with the copy of FIR and the original rukka reached at the spot and at the instance of HC Vijay Shankar (PW2) prepared the site plan Ex.PW8/A (in Arms Act case). HC Jai Prakash (PW8 in Arms Act case) recorded the Page 11 S/V Ravi etc. statements u/s 161 of Cr.PC of the witnesses. He arrested the accused Sushil Kumar vide arrest memo Ex.PW2/A (in Arms Act case) and his personal search was conducted vide memo Ex.PW1/D (in Arms Act case).
14 The result of FSL in respect of country made pistol and four cartridges recovered from the possession of accused Ravi is Ex.PW11/F. Similarly, the FSL result in respect of country made pistol recovered from the possession of accused Ikram is Ex.PW12/C. 15 It came into the knowledge of the police officials that besides the three arrested accused persons, there were two more accused persons, namely, Shehzad and Makri who ran away from the spot by taking the advantage of the darkness. 16 After completion of the investigation, the challan was put up in the court of the Metropolitan Magistrate, where all the accused persons were supplied with the copies of the charge Page 12 S/V Ravi etc. sheet and the documents of the prosecution and then, the case was committed to the Sessions Court for the trial of the accused persons.
17 The charges under Section 399/402 IPC were framed against the accused persons on 3.11.2004. Accused Ravi was also charged for the offence punishable under Section 25 of Arms Act, which read as under :
"That on 3.05.04 at about 8.15 pm at Maharana Pratap Bagh, Kanti Nagar, Extn., Delhi, within the jurisdiction of PS Krishan Nagar, you all abovesaid along with your associate Makri and Shahzad (neither arrested nor challaned) assembled to make plan for dacoity and thereby committed an offence punishable U/s 402 IPC and within the cognizance of this court of Sessions.
Secondly, at the aforesaid date, time and place, you all abovesaid were making preparation to commit dacoity and thereby committed an offence punishable U/s 399 r/w sec. 34 IPC Page 13 S/V Ravi etc. and within the cognizance of this court of Sessions.
That at the abovesaid date, time and place, you (Ravi) were found in possession one country made pistol and four live cartridge without any license or permission thus you committed an offence of Sec. 4 of Arms Act which is punishable U/s.25 of Arms Act within the cognizance of this court of Sessions."
18 Accused Sushil Kumar was also separately charged for the offence punishable under Section 25 of Arms Act, which reads as under :
"That on 3.5.2004 at about 8.15 PM at Maharana Pratap Park, Kanti Nagar, Delhi, within the jurisdiction of PS Krishan Nagar, you were found in possession buttondar knife, 24 cm long in contravention of notification issued by Delhi Admn. and thereby committed an offence u/s.4 of Arms Act and which is punishable U/s.25 of Arms Act and within the cognizance of this court of Sessions."
Page 14 S/V Ravi etc. 19 The charge for the offence punishable under
Section 25 of Arms Act was also separately framed against accused Ikram on 19.9.2007, which reads as under :
"That on 03.05.04 at about 8.15 p.m. at Maharana Pratap Park, Kanti Nagar, Delhi, within the jurisdiction of PS Krishna Nagar, you were found in illegal possession of a country made pistol in contravention of notification of Delhi Administration and thereby committed an offence U/s 25 of Arms Act and within my cognizance."
20 All the accused persons pleaded not guilty to the charges framed against them and claimed trial. 21 The prosecution has examined thirteen witnesses in support of its case in case FIR No.196/2004. Out of those witnesses, PW13 DCP, Shri Ajay Chaudhary granted sanction under Section 39 of Arms Act for the prosecution of accused Ikram. PW9 Insp.Pramod Kumar received the secret information Page 15 S/V Ravi etc. in the police station. PW7 ASI Rajender Prasad was the duty officer whereas PW4 HC Babu Ram was working as MHC(M)and sent the exhibits of the case through PW8 Const. Dayanand for depositing the same in CFSL, Hyderabad.
22 PW3 SI Jaswant Singh along with PW1 Const.Ombir and PW5 Const.Devender apprehended accused Ravi with desi katta and four live cartridges and thereafter, PW11 SI Chander Pal arrested the accused. PW6 ASI Mahmood Khan along with PW10 Const.Ompal apprehended accused Ikram with desi katta and thereafter, PW12 ASI Bhagwat Singh arrested the accused in case FIR No.198/2004. PW2 HC Vijay Shankar along with Const.Pawan apprehended accused Sushil with knife and thereafter, HC Jai Prakash arrested the accused in case FIR No.197/2004.
23 Const.Pawan and HC Jai Prakash were examined as PW2 and PW8 in case FIR No.197/2004 against accused Page 16 S/V Ravi etc. Sushil. In that case, HC Vijay Shankar, the duty officer, HC Rajender Prasad and ASI Mahmood Khan were also examined as PW1, PW4 and PW7.
24 The statements of all the accused persons were recorded under Section 313 Cr.PC. The accused persons have denied the entire case of the prosecution including that, no recovery was effected from them. They have taken the plea that they have been implicated in a false case.
25 The accused persons have examined two witnesses in support of their defence. Accused Sushil has examined his brother Sudhir as DW1, whereas accused Ikram has examined his father, Peer Baksh as DW2. Sudhir (DW1) has stated that his brother, accused Sushil was working at his shop in Gali No.10, Shanti Mohalla. The police lifted him from his shop on 3.5.2004 at about 9 AM. The police had not disclosed as to where Sushil had been taken by them. Shri Peer Baksh (DW2) has Page 17 S/V Ravi etc. stated that was doing the work of ironing the clothes and his son, accused Ikram was helping him at his shop in Gali No.20, Shanti Mohalla, Old Seelampur. He has stated that at about 10 AM of 3.5.2004, the police of PS Krishna Nagar came at his shop and had taken Ikram with them and on the next day, he was challaned.
26 I have heard Shri Sanjay Kumar, learned APP for the State and Shri Ashok Singhal, learned defence counsel for the accused persons. I have carefully gone through their submissions and the record of the case.
27 All the witnesses of the prosecution have spoken in one voice regarding the secret information received at the police station and organizing of the raiding party to apprehend the accused persons. All of them have stated that the raiding party had gone on foot to the informed place with the secret informer and reached there at about 8.05 PM. SI Jaswant Singh (PW3) Page 18 S/V Ravi etc. was sent by Insp.Pramod (PW9) to hear the conversation among the accused persons and on his giving the signal by lighting the light, the accused persons were surrounded by the police party. The witnesses have also spoken about the apprehension of accused persons by the police party and regarding their conducting the proceedings with regard to the weapons recovered from the possession of the accused persons. 28 The necessary ingredients to prove the case under Section 399/402 IPC are that there should be five or more persons for preparation to commit dacoity. In the present case, it has come on record that only three accused persons, namely, Ravi, Ikram and Sushil were arrested by the police. All the police officials have stated in one voice that there were two more persons, namely, Shahzad and Makdi, but they ran away from the spot by taking the advantage of the darkness. Neither their parentage nor addresses have come on the record to establish Page 19 S/V Ravi etc. the identity of the escaped accused persons. Besides this, the police has not shown any efforts being made out by them, to search out the said two accused persons. It is also apparent from the record that neither any warrants were issued against those two accused persons nor any proceedings for declaring them as proclaimed offender, have been initiated by the police. It seems that the police officials have made vague statements regarding the presence of two more accused persons at the spot, just only to make out a case against the present accused persons. The case of the prosecution cannot stand on its foot from the vague statements made by the police officials. The prosecution has failed to make out the necessary ingredients of Section 399/402 IPC to prove the case against the accused persons. 29 The present case of the prosecution solely rests upon the statements of the police officials and there is no independent corroboration of any public. The statements of the Page 20 S/V Ravi etc. police officials shall be examined minutely to find out if those statements can be acted upon even without any corroborative evidence from the public.
30 The learned defence counsel has argued that there are so many material discrepancies in the statements of the prosecution witnesses. He has also stated that the said discrepancies cannot be made the basis to convict the accused persons. The Hon'ble Supreme Court in case of Krishna Mochi & Ors. Versus State of Bihar etc. (Reported in 2002 AIR (SC) 1965) has held that due to lapse of time minor discrepancies are bound to happen. It was further held that the court should not make an attempt to jump over the material discrepancies. 31 Const.Ombir (PW1) has stated in his statement that he cannot say if any departure entry was made in the register regarding their departure for the informed place and if there is any entry, the same might be recorded by Insp.Pramod (PW9). SI Page 21 S/V Ravi etc. Jaswant Singh (PW3) has also so stated that he did not remember whether any departure entry was made or not. Const.Devender (PW5) has stated specifically that they left the police station after Insp.Pramod (PW9) made the departure entry in the register, bearing DD No.17A. Insp.Pramod (PW9) has stated that the departure entry was recorded by the duty officer at 7.40 PM regarding their departure from the police station. 32 Const.Ombir (PW1) has stated that at the time of their departure from the police station, SI Jaswant Singh (PW3) and ASI Mahmood Khan (PW6) were having pistols with them, whereas Insp.Pramod (PW9) was having the search light with him. SI Jaswant Singh (PW3) has stated that he was having his licensed arm with him but he cannot say as to the weapons, possessed by the other police officials. Insp.Pramod (PW9) also do not remember the weapons carried by the police officials. He also do not remember as to which particular thing or weapon, he Page 22 S/V Ravi etc. was carrying. The investigating officer of case FIR No.196/2004, SI Chander Pal (PW11) has stated that when he came to the spot after the investigation was entrusted to him, then he saw that ASI Mahmood Khan (PW6) was having pistol, whereas the constables were having the SAF and the rifles, but he did not know as to what was with Insp.Pramod (PW9).
33 Const.Ombir (PW1), Const.Devender (PW5) and ASI Mahmood Khan (PW6) have stated that the police officials in the raiding party, were wearing the police uniform. They have been contradicted by SI Jaswant Singh (PW3) and Insp.Pramod Kumar (PW9) by stating that all the police officials in the raiding party, were in plain clothes. Const.Devender (PW5) has stated that there were ten gates of the park in which the accused persons were sitting. ASI Mahmood Khan (PW6) has contradicted him by saying that there were only two gates of the park. Insp.Pramod (PW9), SI Chander Pal (PW11) and ASI Bhagwat Page 23 S/V Ravi etc. Singh (PW12) have made different statements by stating that there were only 45 gates, whereas HC Ompal (PW10) has stated that there were 34 gates of the park. Thus, the police officials are not sure about the numbers of gates in the park in which the accused persons were found sitting.
34 The police officials have also made different statements regarding their entry in the park. All the police officials except Const.Devender (PW5) has stated that there is no main gate of the park and anybody can go inside the park from any of its gate. Const.Devender (PW5) has stated that they had taken the entry in the park from its main gate which is on eastern side. Insp.Pramod (PW9) and SI Chander Pal (PW11) have supported the statement of the constable only to the extent that they entered in the park from the eastern side but denied that there is any main gate. ASI Mahmood Khan (PW6) has changed the entry Page 24 S/V Ravi etc. point of the police party in the park by stating that the raiding party entered into the park from the gate of the northern side. 35 The police officials are also not sure about the area of the park. Const.Devender (PW5) has stated that the park is situated into an area of about 4000 sq.yards, whereas ASI Mahmood Khan (PW6) has reduced the area of the park by stating that the park is situated in an area of only 1500 sq.yards. The inspector (PW9) has made statement that the park has the area of about 40005000 sq.yards. Const.Ombir (PW1) has stated that after pointing out the place of sitting of the accused persons, the informer immediately left the place, whereas Const. Devender (PW5) has contradicted him by stating that the informer remained at the spot for about 30 minutes. The inspector (PW9) has stated that the informer remained with them till 8.15 PM. 36 All the police officials have stated that there was one gents gym in the park and when they reached the park, then Page 25 S/V Ravi etc. by that time, the gym was closed. Const.Devender (PW5) is not specific whether the gym was closed by that time or not. SI Jaswant Singh (PW3) has other idea. He has stated that there were two gyms in the park, one meant for gents and the other for ladies. Const.Ombir (PW1) has stated when the police officials entered in the park where the accused persons were sitting, then there were 1015 persons available and that the public persons were asked to associate in the proceedings. SI Jaswant Singh (PW3) has given the specific number of persons available in the park by stating that they were four in number. Const.Devender (PW5) has made the statement that there were about 50 people present in the park, whereas HC Ompal (PW10) has stated that no person was available in the park at the time when they entered into the park. Both of them even stated that no person was asked in the park to join the proceedings conducted by the police. Insp.Pramod Kumar (PW9) has also stated that inside the Page 26 S/V Ravi etc. park, no person of the locality or the shopkeeper was asked to join the proceedings. Thus, the police officials are not even confirmed on the number of persons available in the park or their asking the said persons to join the proceedings of the case. 37 All the police officials have stated that there was one board of Delhi Vikas Pradhikaran available in the park, but they have made different statements regarding the height and the fixation of the said board. Const.Ombir (PW1) has stated that the board was of the height of about four feet, whereas SI Jaswant Singh (PW3) has told the height of the board as 5½ feet. Const. Devender (PW5) has increased the height of the board to 10 feet. Insp.Pramod (PW9) has stated that the board was of the height of more than six feet and SI Chander Pal (PW11) has stated that the board was of about 810 feet high. Const.Devender (PW5), ASI Mahmood Khan (PW6) and HC Ompal (PW10) have stated that the board in the park was fixed on the iron angles, whereas Page 27 S/V Ravi etc. Insp.Pramod (PW9) has contradicted them by stating that the board was not fixed on angles rather it was attached with the earth.
38 There are also different statements of the police officials regarding the writing work done at the spot. Const.Ombir (PW1) has stated that the writing work was done under the search light which Insp.Pramod (PW9) was carrying and it was done while sitting on the bench. SI Jaswant Singh (PW3) has also so stated that the writing work was done while sitting on the bench but under the electric light which was emitting from the pole available in the park. Const.Devender (PW5) has also stated that there was high mast light which was on at that time and the writing work was done while sitting on the bench, but has stated that it was done while sitting on the pavement near the gym. ASI Bhagwat Singh (PW12) has also stated that the writing work was done while sitting on the footpath in the park. ASI Mahmood Khan Page 28 S/V Ravi etc. (PW6) has corroborated the statement of SI Jaswant (PW3) that the writing work was done under the light of the pole but has stated that there was arrangement for sitting in the park and that no chairs/benches were available in the park. Insp.Pramod (PW9) and HC Ompal (PW10) have stated that they cannot tell about the light points available in the park as at that time, the light were off. Insp.Pramod (PW9) has even stated that he cannot tell as to where the writing work was carried out by the investigating officers, whereas HC Ompal (PW10) has stated that there were stone benches available in the park.
39 SI Chander Pal (PW11) has stated that he was having difficulty in his hand and therefore, the constables recorded the documents and the statements on his dictation. ASI Bhagwat Singh (PW12) has contradicted the statement of SI Chander Pal (PW11) by stating that in his presence, SI Chander Pal (PW11) himself prepared the documents of the case and Page 29 S/V Ravi etc. recorded the statements of the witnesses. There are also different statements of the police officials regarding their finally leaving the spot. Const.Ombir (PW1) has stated that the police officials finally left the spot together at around 1.00 AM, whereas SI Jaswant Singh (PW3) has stated that they left the spot at 45 AM. Const.Devender (PW5) has stated the time of their leaving the spot as 12.30 AM and ASI Mahmood Khan (PW6) has stated that he remained at the spot only for two hours and thereafter, he left the spot at 11.15 PM. The statement of ASI Mahmood (PW6) was contradicted by the investigating officer, ASI Bhagwat Singh (PW12) by stating that after the registration of the FIR and entrusting with the investigation of the case FIR No.198/2004, he reached the spot only at 11.30 PM. The statement of the investigating officer, ASI Bhagwat (PW12) has duly been corroborated by the duty officer, ASI Rajender (PW7) by stating that he received the rukka of case FIR No.196/2004 of SI Page 30 S/V Ravi etc. Jaswant (PW3) at 9.55 PM and it took him 30 to 40 minutes in recording the FIR. Thereafter, he recorded the FIR of case No.197/2004 and after that, he recorded the FIR of case No.198/2004. The duty officer has stated that it took him about 20 to 25 minutes each in recording the FIR Nos.197/2004 and 198/2004. Thus, if the duty officer has started recording the FIR of the three cases by 9.55 PM then he cannot complete the recording of the case FIR No.198/2004, before 11.25 PM. 40 Thus, I find that there are various material contradictions in the statements of the police officials. The contradictions in their statements, are not minor but the same are material and go to the root of the case of the prosecution. Thus, from the above discussion, it has been established that the statements made by the prosecution witnesses are quite shaky, suspicious and fragile and the same cannot be believed to convict the accused. The Hon'ble Allahabad High Court has Page 31 S/V Ravi etc. expressed its views in case titled, Udal Versus State of UP (reported in 2004 Crl.L.J. 2969), that the shaky, suspicious and fragile evidence cannot be made the sound basis for conviction of the accused, when the prosecution has failed in establishing the guilt of the accused convincingly and satisfactorily beyond all reasonable doubt. Similarly, the Hon'ble Punjab & Haryana High Court in case titled, Amrik Singh Versus State of Punjab (reported in 2005(IV) RCR (Criminal) 310), while relying upon a judgment pronounced by Hon'ble Supreme Court, has also observed that where witnesses make two inconsistent statements in their evidence either at one stage or at two stages, the testimony of such witness becomes unreliable and unworthy of credence and in the absence of special circumstances, no conviction can be based on the evidence of such witnesses. In the present case, there is no other independent corroboration by any other public person to the witness of the occurrence, which Page 32 S/V Ravi etc. could support the version of the prosecution to convict the accused persons.
41 Besides the aforesaid glaring contradictions in the statements of the police witnesses, the learned defence counsel has also drawn my attention towards the faulty investigation conducted by the police. SI Jaswant (PW3) has stated that when he recovered the country made pistol and the four live cartridges, then he seized the same by preparing the seizure documents and also filled in the FSL form. The statement of SI Jaswant (PW3) has not been corroborated by the two constables, namely, Const.Ombir (PW1) and Const.Devender (PW5). The seized articles were thereafter deposited by SI Chander Pal (PW11) with the MHC(M), HC Babu Ram (PW4) vide entry No.2275/274, Ex.PW4/A. The perusal of the said entry also shows that there is no mention of filling and depositing the FSL form in the malkhana. The MHC(M) has stated that the case property of case FIR Page 33 S/V Ravi etc. No.198/2004 was also deposited with him in the malkhana vide entry No.2276/275, Ex.PW4/B. The MHC(M) thereafter sent the exhibits to CFSL Hyderabad through Const.Daya Nand (PW8) vide RC No.24/21. Constable Daya Nand (PW8) has stated that he took two sealed parcels from the MHC(M) and deposited the same in the CFSL, Hyderabad vide RC No.24/21 and 23/21. The constable has also not stated about taking of any FSL form from the MHC(M) and depositing the same in CFSL Hyderabad. The report of the FSL also do not confirm whether any FSL form was received by them or not. It is pertinent to mention here that only the copy of RC No.24/21 has been proved by the prosecution on record. It has withheld the copy of RC No.23/21 from the court for the reasons best known to it. Thus, it cannot be said that at the time of seizure of the case property from accused Ravi, SI Jaswant (PW3) filled in any FSL form. The filling of FSL form and sending the same to CFSL for expert opinion, is an essential Page 34 S/V Ravi etc. exercise which the prosecution has failed to prove beyond reasonable doubt. In this regard, the learned defence counsel has referred the judgment in case, titled Karambir Versus State (reported in 1997 JCC 520). It was held in the said case that the constable who took the parcels to CFSL, stated that he took two sealed parcels whereas CFSL report said that only one parcel was received there. The MHC(M) with whom the property was deposited was not examined in the said case. In the present case also, there is no corroboration between the statements of the MHC(M), HC Babu Ram (PW4) and Const.Daya Nand (PW8) as the MHC(M) has stated that he sent the exhibits to CFSL only vide RC No.24/21, whereas Const.Daya Nand (PW8) has stated that he took the exhibits of the case vide RC No.24/21 and 23/21. 42 The perusal of the record further shows that the prosecution has obtained sanction under Section 39 of Arms Act, Ex.PW13/A for the prosecution of accused Ikram only. The police Page 35 S/V Ravi etc. officials have stated that accused Ravi was also found in possession of one country made pistol and four live cartridges. Still, the prosecution has not cared to obtain any sanction for the prosecution of accused Ravi which makes the case of the prosecution doubtful. The seizure memo, Ex.PW1/B in respect of case property from accused Ravi was prepared by SI Jaswant Singh (PW3). The record shows that the seizure memo bears the FIR number of the case. The prosecution has not explained as to how the seizure memo of exhibits from accused Ravi bears the FIR number because the FIR of the said case was registered after the proceedings regarding the seizure of the articles has already been done by the SI much before the registration of the case FIR. In this regard, the learned defence counsel has placed his reliance upon the judgment in case titled Pawan Kumar Versus The Delhi Administration (reported in 1987 C.C.Cases 585 (HC). The Hon'ble High Court has held in the said case that Page 36 S/V Ravi etc. where the recovery memo of knife prepared at the spot finds place the FIR number before its registration by the duty officer, the circumstance creates doubt and the benefit should be given to the accused. In the present case also, the recovery memo of pistol and the cartridges from the possession of accused Ravi finds place the FIR number much before its registration by the duty officer. Hence, the circumstance of the present case also creates doubt about the involving of the accused persons in the case.
43 It is the case of the prosecution that SI Jaswant Singh (PW3) was sent to hear the conversation of the accused persons. The informer is not the witness of the prosecution. Thus, the statement of SI Jaswant (PW3) about the conversation of the accused persons, cannot be confirmed by any other witness. It is strange that the accused persons were talking in such a manner Page 37 S/V Ravi etc. that their plan to commit dacoity was within the hearing range of SI Jaswant Singh (PW3). The SI says that out of the gathered persons in the park, one was standing and was saying to his associates that on that night, they had to commit the dacoity at Verma Jewellers. The statement of SI Jaswant (PW3) cannot be confirmed as no other witness heard their conversation. Otherwise, it is highly improbable that a person was saying so at a public place to invite the action against him and his associates. 44 In the present case, the statements of the police officials have not inspired confidence to believe them to hold that the accused persons were apprehended in the manner as stated or that, they made a plan to commit dacoity or that, they were found carrying arms and ammunitions.
45 The apprehension of the accused persons is in doubt. Consequently, the recovery of weapons and ammunitions Page 38 S/V Ravi etc. from their possession, is also dubious. The nature of statements of the police officials do not inspire confidence so that the same can be relied upon in the absence of corroboration to the statements of the police officials. The case of the prosecution for the offences punishable under Section 399 and 402 IPC as well as under the Arms Act, is full of doubts. Hence, benefit of doubt is extended to the accused persons.
46 While extending the benefit of doubts, both the accused persons, namely, Sushil and Ikram have been acquitted of the charges framed against them for the offence punishable under Section 399/402 IPC and also of the Arms Act. 47 Accused Ravi is proclaimed offender. The evidence of the prosecution as has already been brought on the record, will be read against him as and when he will be produced in the court to face trial in the case. The file be consigned to record room under Section 299 Cr.PC.
Page 39 S/V Ravi etc.
48 The bail bonds of both the accused are cancelled
and sureties stand discharged.
49 File be consigned to the record room.
Announced in the open Court ( P.S. TEJI )
Dated: 23.1.2010 District JudgeVI (East)
cum Addl. Sessions Judge
Karkardooma Courts
Delhi