Delhi District Court
State vs . 1. Shambhu @ Kana on 20 August, 2016
FIR No. 03/2007; U/s 399/402 IPC & 25/54/59 Arms Act ; PS Adarsh Nagar D.O.D.: 20.08.2016 IN THE COURT OF SHRI VIDYA PRAKASH: ADDL. SESSIONS JUDGE04 (NORTH): ROHINI COURTS: DELHI Session Case No. 59146/16 State Vs. 1. Shambhu @ Kana S/o Sh. Kailash Kewat, R/o Jhuggi AA Block, Shalimar Bagh, Delhi 2. Ravi @ Khokha S/o Sh. Udai Raj, R/o Jhuggi No. AA302, Kela Godown, Shalimar Bagh, Delhi. FIR No. : 03/2007 Police Station : Adarsh Nagar Under Sections : 399/402 IPC & 25/54/59 Arms Act. Date of committal to Sessions Court: 27.07.2016 Date on which judgment was reserved: 20.08.2016 Date on which Judgment pronounced: 20.08.2016 JUDGMENT
BRIEF FACTS OF THE CASE
1. The above named accused had been sent to face trial in respect of offences punishable U/s 399/402 IPC and 25/54/59 Arms Act on the allegations that on 01.01.2007 at about 6.30 pm near D Block, Railway Junction at one old demolished building near Adarsh Nagar, they alongwith co accused persons namely Mohan @ Mona, Vijay @ Ram Hardoi (both since acquitted on 10.03.2011) and Shyam ( already PO) were planning to commit dacoity.
2. The case of prosecution as mentioned in the charge sheet is as State V/s Shambhu @ Kana Etc.("Acquitted") Page 1 of 9 FIR No. 03/2007; U/s 399/402 IPC & 25/54/59 Arms Act ; PS Adarsh Nagar D.O.D.: 20.08.2016 under:
(i). That on 01.01.2007, SI Sanjay Nagpal (PW3) received secret information that 56 boys had been planing to commit dacoity in one demolished building. On receipt of this information, SI Sanjay Nagpal called HC Paramjit (PW1), Ct. Satyawan, HC Rajpal, HC Ved Parkash (PW2) and HC Madan Mohan through wireless. He briefed the said police officials with regard to secret information and prepared raiding party consisting of himself alongwith aforesaid police officials. He also requested 45 public persons to join the raiding party but none agreed;
(ii). It is further the case of prosecution that SI Sanjay Nagpal handed over small torch to HC Ved Parkash and instructed him to go with secret informer to the place pointed out by secret informer and to over hear the conversation and to give signal by lighting the torch. The remaining members of raiding party took their respective positions;
(iii). It is further the case of prosecution that at about 6.55 pm, HC Ved Prakash gave signal by lighting the torch on which SI Sanjay Nagpal warned the boys found sitting inside the building, to surrender themselves and thereafter, they managed to apprehend 4 boys including the present two accused persons;
(iv). It is alleged that one Churri was recovered from the possession of accused Ravi @ Khokha and one iron rod was recovered from dub of the wearing pant of accused Shambhu @ Kana;
(v). It is further the case of prosecution that SI Sanjay Nagpal carried out necessary proceedings including measuring the State V/s Shambhu @ Kana Etc.("Acquitted") Page 2 of 9 FIR No. 03/2007; U/s 399/402 IPC & 25/54/59 Arms Act ; PS Adarsh Nagar D.O.D.: 20.08.2016 recovered Churri, knife, etc., preparing their rough sketches, their seizure, etc. at the spot and got the FIR registered. The investigation was entrusted to ASI Attar Singh (PW5) who, accordingly, reached at the place of occurrence;
(vi). It is further case of prosecution that SI Sanjay Nagpal handed over recovered arms and the relevant memos prepared at the spot and the custody of accused persons namely Shyam, Ravi @ Khokha, Shambhu @ Kana and Vijay @ Ram Hardoi to ASI Attar Singh who interrogated the said accused persons, arrested them and recorded their disclosure statements;
(vii). It is further case of prosecution that ASI Attar Singh also recorded the statements of witnesses, prepared rough site plan of the place of occurrence, etc. during the course of investigation. After completion of investigation, charge sheet was filed before the Court.
3. It may be noted here that both these accused were previously declared proclaimed offenders in this case and co accused Mohan @ Mona and Vijay @ Ram Hardoi were acquitted vide judgment dt. 10.03.2011 passed by the Court of Sh. Sudhir Kumar Jain the then Ld. ASJ01 Rohini Delhi. Subsequently, both these accused were arrested U/s 41.1 (c) Cr.PC by police offical of PS Rani Bagh on 12.07.16 in kalandra prepared vide DD no. 41B dt. 12.07.16 and consequently, the file was got requisitioned from the Record Room and both these accused were put to trial.
CHARGES FRAMED AGAINST THE ACCUSED PERSONS
4. After hearing arguments on the point of charge, this Court was pleased to frame the charges U/s 399/402 IPC against accused persons State V/s Shambhu @ Kana Etc.("Acquitted") Page 3 of 9 FIR No. 03/2007; U/s 399/402 IPC & 25/54/59 Arms Act ; PS Adarsh Nagar D.O.D.: 20.08.2016 namely Shambhu Kumar @ Kana and Ravi @ Khokha, separate charge in respect of offence U/s 25 Arms Act was also framed against accused persons namely Ravi @ Khokha vide order dated 27.07.2016, to which accused persons pleaded not guilty and claimed trial.
5. In support of its case, prosecution examined five witnesses namely PW1 ASI Paramjit Singh, PW2 HC Ved Prakash, PW3 Inspector Sanjay Nagpal, PW4 ASI Dharam Pal Singh & PW5 ASI (Retd.) Attar Singh during trial.
6. Thereafter, statement U/s 313 Cr.P.C. of accused Shambhu @ Kana & Ravi @ Khoka were recorded during which all the incriminating evidence which came on record, were put to them which they denied. Both the accused persons claimed that they are innocent and have been falsely implicated in this case. However, they opted not to lead any evidence towards their defence.
7. I have heard Sh. Pankaj Bhatia, Ld. Additional PP on behalf of State and Ld. counsel Sh. Shyam Lal Sharma, Adv. for both the 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 which have come on record. The said testimonies are detailed as under: POLICE WITNESSES
9. PW1 ASI Paramjit, PW2 HC Ved Prakash & PW3 Inspector Sanjay Nagpal: All these three witnesses were members of the raiding party as per the case of prosecution. All the said witnesses deposed on the lines of prosecution story during their chief examination.
State V/s Shambhu @ Kana Etc.("Acquitted") Page 4 of 9FIR No. 03/2007; U/s 399/402 IPC & 25/54/59 Arms Act ; PS Adarsh Nagar D.O.D.: 20.08.2016 They proved the relevant documents i.e seizure memo of iron rod allegedly recovered from the possession of accused Shambhu @ Kana as Ex. PW1/A, arrest memo and personal search memo of said accused as Ex. PW1/B and Ex. PW1/C respectively, rukka as Ex. PW3/A. They also identified the recovered arms as Ex. P1 to Ex. P3 and torch as Ex. P4 during trial. All the aforesaid three witnesses have been cross examined at length on behalf of accused persons.
10. PW4 ASI Dharam Pal Singh: He is the Duty Officer who has proved factum regarding recording of FIR No. 3/07 in PS Adarsh Nagar. He proved copy of said FIR as Ex.PW4/A and his endorsement as Ex.PW4/B made on the rukka. He deposed that he had handed over copy of FIR and original rukka to Ct. Satyawan to be handed over to ASI Attar Singh. He has not been cross examined by accused persons despite grant of opportunity.
11. PW5 ASI (Retd.) Attar Singh: He is the IO of this case. He deposed on the lines of prosecution story by testifying that after he collected copy of FIR and original rukka from Ct. Satyawan, he alongwith Ct. Satyawan went to the spot where SI Sanjay Nagpal handed over all the sealed pullandas, seizure memos, sketches of recovered case property and custody of accused persons who were apprehended at the spot, to him. After interrogating the accused persons namely Shyam (PO), Shambhu @ Kana, Ravi @ Khokha, they were arrested and their personal search were conducted by him vide memos Ex.PW2/A to Ex.PW2/F. He had also recorded their disclosure statements Ex.PW2/G to Ex.PW2/J and deposited the case property in the Malkhana. He also deposed to have prepared rough site plan Ex. PW2/K at the instance of SI Sanjay Nagpal. He has been cross examined at length on behalf of accused persons.
State V/s Shambhu @ Kana Etc.("Acquitted") Page 5 of 9FIR No. 03/2007; U/s 399/402 IPC & 25/54/59 Arms Act ; PS Adarsh Nagar D.O.D.: 20.08.2016 ARGUMENTS ADVANCED AND CASE LAW CITED
12. While opening the arguments, Ld. Addl. PP submitted that three police officials namely ASI Paramjit (the then HC) (PW1), HC Ved Parkash (PW2) and Inspector Sanjay Nagpal ( the then SI) (PW3) who were members of the raiding party, have supported the case of prosecution during trial. He further argued that PW5 ASI Attar Singh who is the IO of the case, has also corroborated the testimonies of PW1 to PW3 and thus, the prosecution has been able to prove its case against both these accused persons. He also submitted that since there is recovery of Churri from the possession of accused Ravi @ Khokha, he should also be convicted for the offence punishable U/s 25 Arms Act.
13. On the other hand, Ld defence counsel vehemently argued that the entire burden to prove its case was upon the prosecution but the prosecution has failed to discharge the said burden beyond pales of reasonable doubt. He argued that no independent public witness was joined either in the raiding party or at the time of conducting the relevant proceedings at the spot despite their availability. Therefore, the accused persons are entitled to benefit of doubt.
14. In the matter titled as State of Himachal Pradesh v/s Dharam Dass reported at 1992(1) CLR, it has been ruled that the prosecution has to prove the guilt against beyond all reasonable doubt and that too by leading independent, reliable and unimpeachable evidence. There is no controversy to the proposition that the accused is entitled to the benefit of every doubt occurring in the prosecution case.
15. In another case titled as Thakorbhi Viribhai Vasava & others V/s The State of Gujarat reported at Crime Vol (1) 1987/37 delivered by State V/s Shambhu @ Kana Etc.("Acquitted") Page 6 of 9 FIR No. 03/2007; U/s 399/402 IPC & 25/54/59 Arms Act ; PS Adarsh Nagar D.O.D.: 20.08.2016 Hon'ble Gujarat High Court (D.B), it has been ruled down that in criminal trials even a slightest doubt raised in favour of accused ordinarily entitles the accused to get acquittal.
16. Now adverting back to the facts of the present case. The prosecution story as propounded in the charge sheet recites that the accused persons were having conversation amongst themselves in such a loud voice that it could have been heard by PW1 to PW3 while they were observing them from quite some distance. It does not stand to reason as to why the accused persons would converse with each other in such high volume when they were preparing to commit dacoity and in such a manner so that their conversation may be clearly and easily heard by someone hiding or concealing in nearby place. Rather, the natural conduct would be that the offenders who are conspiring to commit dacoity, would firstly ensure their safety by giving a look all around the place where they have assembled before talking about secret conversation.
17. In some what similar facts & circumstances in a case U/s 399/402 IPC, it has been held by Hon'ble Allahabad High Court in the judgment reported at 2003 CR.L.J. 1321 that it is not digestible that the appellants and their associates would have been talking at such pitch of voice as to the clearly audible by the police party concealing nearby.
18. In another matter reported at 2005 Cr.L.J. 185, the accused/appellants were charged with offences U/s 399/402 IPC and the facts of the case were almost similar to the facts of the present case as it was also claimed in the said case that accused/appellants were apprehended by police officials after giving them a chase. In this backdrop, it has been held by Hon'ble Allahabad High Court that it does not appear to be natural that no injury could take place on either side and four of the miscreants State V/s Shambhu @ Kana Etc.("Acquitted") Page 7 of 9 FIR No. 03/2007; U/s 399/402 IPC & 25/54/59 Arms Act ; PS Adarsh Nagar D.O.D.: 20.08.2016 were arrested, fire arms and cartridges were recovered from their possession.
19. It has also not been explained by the prosecution witnesses as to why none of them made any effort to take photographs of the place where accused persons were sitting and were allegedly conspiring to commit dacoity. Not only this, they also did not make any effort to videograph the said place before actually conducting the raid. It has not been explained by prosecution witnesses as to what prevented them to do so when it could have been done by them.
20. Moreover, the prosecution witnesses examined during trial failed to prove that there was any overt act on the part of any of the accused persons which may lead to the inference that they had any intention to commit dacoity or they were planning to commit dacoity over there.
21. Further more, the prosecution has failed to lead any cogent evidence which may even suggest that there was any intention on the part of accused persons to commit dacoity. In the matter reported at 1979 SCC (Cri.) 502, Hon'ble Apex Court has observed that the mere fact that accused persons were found present at particular place, does not by itself prove that they had assembled for the purpose of committing dacoity or for making preparation to accomplish that object.
22. In another matter reported at 1978 Cr.L.J. 877, it has been held by Hon'ble Patna High Court that no conviction U/s 399 or 402 IPC can be recorded simply on the basis that a certain number of persons, some being armed, are apprehended at the platform of a railway station. The prosecution has to establish that they had assembled there for committing dacoity or were preparing to commit dacoity. Similar view has been taken State V/s Shambhu @ Kana Etc.("Acquitted") Page 8 of 9 FIR No. 03/2007; U/s 399/402 IPC & 25/54/59 Arms Act ; PS Adarsh Nagar D.O.D.: 20.08.2016 by our own High Court in the judgment reported at 2000 Cr.L.J. 2083.
23. In the light of aforesaid discussion, Court is of the considered view that the prosecution has failed to establish the charges levelled against accused persons namely Shambhu @ Kana and Ravi @ Khokha beyond shadow of doubt. Consequently, both the said accused are hereby acquitted of the charges levelled against them by giving them benefit of doubt. However, case property be confiscated to the State. File be consigned to Record Room after compliance of Section 437A Cr.P.C.
Announced in open Court today
On 20.08.2016 (Vidya Prakash)
Additional Sessions Judge04 (North)
Rohini Courts, Delhi
State V/s Shambhu @ Kana Etc.("Acquitted") Page 9 of 9