Delhi District Court
State vs 1..Pradeep Bhar Dwaj S/O. Sh. Ani L on 3 August, 2010
IN THE COURT OF SH. SANJAY GARG: ADDIT IONAL SESSIONS
JUDGE; (EAST) FTC : KARKADOOMA COURT : DELHI.
SESSIONS CASE No. 26/07
FIR No. 71/00
U/S: 307/332/353/186/34 IPC & 27 Arms Act
P.S. Mayur Vihar
State Versus 1..Pradeep Bhar dwaj S/o. Sh. Ani l
Bhardwaj R/o. N-16C-1, Dilshad Gar den,
Delhi. (P.O)
2. Rohit @ Motu @ Thapa @ Prashant
@ Rahul S/o. Sh. Narender Lal Gupta,
r/o.U-42/8, DLF, Phase-III, Gurgaon
(Haryana).
.
DATE OF INSTITUTION : 20.7.00
JUDGEMENT RESERVED ON : 9.7.10
JUDGEMENT DELIVERED ON : 3.8.10
JUDGMENT
1. In brief the factual matrix of the case are that on 4.4.00 PW4 Inspector Rajinder Singh, Special Staff, South Di strict was instructed by the senior officers to carry out the search of robbed vehicle in Trans Yamuna area of FIR No. 108/00 PS Lodhi Colony in which mercedes car No. DL-2CH-4471 of blue colour was robbed. PW4 accompanyi ng PW11 ASI Rajinder Singh (now SI and at that time he was ASI) and HC Ram Kishan reached at Mayur Vihar and the said vehicle was found parked in Mayur Vihar, Phase-1. PW4 kept surveillance of the vehicle as he suspected that the criminals may come there to take the vehicle FIR No. 71/00 page 1 of Page 16 from the spot. He remained there throughout the night. Next day on 5.4.00 he summoned extra staff on the spot comprising SI Bijender Singh (PW9 as he then was ), SI Pankaj Singh (PW-17 as he then was) , SI Akhlesh Yadav (PW-8 as he then was), SI Ranjay Atrishya (PW-18 as he then was), SI Sunil Mittal (PW-5 as he then was), SI Vijay Chandel and other police officials. On the briefing by PW4 all these police officials were deployed at di fferent points surrounding that ar ea.
2. At about 4 p.m a white colour Maruti esteem bearing No. DL-
3CH-3296 (having original No. DL-8CC-2726) stopped near the said Mercedes car. The said car was stolen on 11.3.00 between 7.30 p.m to 10.30 p.m from Pocket A, DDA Flats, Sukhdev Vihar from possessi on of Ashok Kumar Gupta for which FIR No. 127/00 PS New Friends Colony u/s. 379/411 IPC was lodged. The chargesheet in this case is disposed together with this case.
3. One person came out from the esteem car wearing white T shirt and black pant, rushed towards the mercedes car. On seeing the police party that boy who went inside the mercedes car got down and ran towards esteem. Police party tried to nab him but he fired upon the police party with a revolver he was carrying. Police party also opened fire. That boy managed to sit inside esteem car and ran in order to escape. Police team put a scooter in front of esteem car to stop it but car after hitting the scooter proceeded towar ds gate No.1. The car took turn towards gate No.2, there police officials positioned tried to stop the car, there also the person sitting in the esteem car opened fire on the police party. Then car took right turn and proceeded towards gate no.3 and there also police party was fired at. Near gate No.4 the car could not proceeded ahead as there was wall, one out of the two boys sitting in the car tried to climb the wall. That boy was apprehended by PW-17. PW-16 HC Balraj and HC Shiv Kumar alongwith PW4 and other police officials followed the other boy. That boy reached at the roof of Flat No. 412, Phase-1, Pocket-II, Mayur Vihar and he was apprehended FIR No. 71/00 page 2 of Page 16 there. Pistol was recovered from his possessi on and his name was disclosed as Rohi t i.e. accused faci ng trial in this case.
4. After investigation police filed chargesheet against both the accused per sons u/s. 307/332/353/186/34 IPC and u/s. 27 Ar ms Act.
5. Charge u/s. 27 Arms act was given to accused Rohit dated 30.8.00, to which he pleaded not guilty and claimed trial. Charge u/s. 186/332/353/307/34 IPC was given to both the accused persons dated 31.8.00, to whi ch they pl eaded not gui lty and cl aimed trial.
6. During trial accused Pradeep absented and was declared P.O vide order dated 26.3.07.
7. To prove its case prosecution examined 23 witnesses. PW1 SI Sukhpal Singh was duty officer on 5.4.00 at PS Mayur Vihar, he proved FIR No. 71/00 Ex.PW1/A, DD No. 11-A Ex.PW1/B and DD No. 15-A as Ex. PW1/C. PW2 Dr. Kalpana Kumar, SDN Hospital, Shahdra proved MLCs of the police officials as Ex.PW2/A to PW2/E. PW3 Dr. Kailash Rishi, GTB Hospital proved MLC of HC Bhagirath Prasad Ex.PW3/A. PW4 Inspector Rajinder Singh was Incharge of the police team who apprehended both the accused alongwith the stolen vehicle at Mayur Vihar on 5.4.00. He proved sketch of the recovered pistol from accused Rohit as Ex.PW4/A (wrongly mentioned as Ex.PW2/A), seizure memo of the pistol and cartilages as Ex.PW4/B (wrongly mentioned as Ex.PW2/B), seizure memo of the mercedes car as Ex.PW4/C (wrongly mentioned as Ex.PW2/C). PW5 Inspector Sunil Kumar is member of the police team. PW6 Sh. Ashok Kumar Gupta is the person from whose possessi on the esteem car NO. DL-8CC-2726 was stolen from Sukhdev Vihar on 11.3.00, he proved his complaint Ex.PX. PW7 Sh. Naresh Singhal is General Manager of Surya Roshni was owner of the Esteem car. He filed copy of the RC of the car as Ex.PY. PW8 Inspector Aklesh Yadav was also member of the police team. He proved seizure memo of his service revolver and two empty FIR No. 71/00 page 3 of Page 16 cartridges and seizure memo of the service pistol and one fired cartridge as Ex.PW8/A. He also proved seizure memo Ex.PW8/B vide which PW11 HC Rajinder Singh handed over his service revolver to IO. PW9 Inspector Bijender Singh is another member of the police team. He proved rukka Ex.PW9/A, personal search memo of accused Rohit Ex.PW9/B, memo Ex.PW9/C vide which key of mercedes car was seized from possessi on of accused Rohit, seizure memo Ex.PW9/D vide which one mobile phone was recovered from Rohit and the disclosure statement of both the accused persons Ex.PW9/E and PW9/F. PW10 Sh. Dinesh Kumar produced the esteem car, he proved Special Power of Attorney given to him by Director, Surya Roshni Ltd. as Ex.PW10/A. He proved photographs of the car from different angl es as Ex.PW 10/B-1 to B-3 and negati ves as Ex.PW 10/C-1 to C-3.
8. PW-11 HC Rajinder Singh was member of the police team, he proved seizure memo Ex.PW11/A vide which three fired cartridges were handed over by him to IO SI Mahipal Singh PW22. He also proved seizure memo of the scooter Ex.PW11/B. PW12 Retired SI Kedar Nath proved mechanical inspection report of Bajaj Chetak scooter No. DL-7SJ-9184 Ex.PW12/A. He also proved mechanical inspector report of esteem car bearing fake number plate of DL-3CH- 3296 and having original No. DLB-CC-2726. He also proved mechanical inspection report of Atlas cycle Ex.PW12/C. PW13 Ct. Arun Kumar was also member of the raiding team. PW-14 Sh. B.P. Bhardwaj, Senior Executive, Pearl Polymers produced the mercedes car No. DL-2CH-4471. He filed copy of the RC Ex.PW14/A and photographs of the vehicle from all four sides as Ex.PW14/B-1 to B-4. PW15 Ct. Mustaq Khan took pulandas in this case on 30.6.02 vide RC No. 33/21 to FSL, Malviya Nagar and handed over the receipt to MHC(M). PW-16 HC Balraj Singh was also member of the pol ice team. PW-17 Inspector Pankaj Singh was al so member of the pol ice team. He proved seizure memo Ex.PW17/A and PW17/B of the cartridges, FIR No. 71/00 page 4 of Page 16 seizure memo of the car Ex.PW17/C, arrest memo of accused Pradeep Ex.PW17/D and seizure memos Ex.PW17/E and PW17/F vide which empty cartridges and pistol used by police team were separately handed over to IO SI Mahipal Singh. PW18 Inspector Ranjay Atrishya was also member of the team. PW-19 HC Rajesh was member of the crime team and he reached at the spot. He was partially examined on 26.11.09 and for want of hi s report his further examination was defer red but he was not summoned thereafter, hence his statement cannot be read in evidence.
9. PW-20 Sh. Vivek Gogia, Addl. Commissioner of Police proved his complaint Ex.PW20/A made u/s. 195 Cr. PC. PW21 Inspector H.R. Meena was photographer with the crime team. He proved photographs of the two vehicles from different angles as Ex.PW21/A-1 to A-8 and negatives Ex.A-9 to A-16. PW-22 SI Mahipal Singh is the IO of this case, he proved site plan Ex.PW22/A, seizure memo of bicycle Ex.PW22/B. PW-23 Sh. K.C. Varshney, Assistant Director (Ballistics), FSL proved his report Ex.PW23/A.
10. On the basis of the incriminating evidence appearing on record against the accused Rohit, his statement u/s. 313 Cr.PC was recorded, giving him opportunity to explain it. He denied all the allegations made against him by the prosecution witnesses and took the defence of false implication in this case. It is stated by the accused that in April'2000 he was taken to PS after blind folding him, on gun point his signatures were taken on blank papers. Inspector Rajinder Singh wanted to kill him and due to thi s a false story regarding encounter was cooked up and he was falsely implicated in FIR No. 127/00 PS N.F. Colony, FIR No. 108/00 P.S. Lodhi Colony and in this case. However , he did not lead any defence evi dence.
11. Heard arguments of Sh. Rakesh Mehta, Ld. APP for State and Sh. Rakesh Kochar, Ld. Defence counsel for accused Rohit.
FIR No. 71/00 page 5 of Page 16 Perused the case fi le.
12. Ld. APP contended that from the statements of police officials it stands established beyond doubt that both the accused persons obstructed and assaulted the police team. It also stands established beyond doubt that accused Rohit fired at the police party and recovery of countrymade pistol further establish this point against the accused persons. It is stated that prosecution has been able to prove all the offences agai nst accused Rohi t for which he is charged.
13. The Ld. Defence counsel Sh. Rakesh Kochar contended that there are material contradictions in the statements of the police officials. It is argued that the story given by police that while tracing mercedes car they reached Mayur Vihar, Phase-1 in itself is unbelievable. It is contended that not a single public witness has been examined by the prosecution in support of its case which further creates shadow of doubt on the testimony of police officials. It is submitted that PW4 SI Rajinder Singh had picked this accused fr om his house, he wanted to eliminate him in an encounter but somehow he could not do so but this accused was implicated in this false case. It is further stated that car is not produced during trial before this Court.
14. PW4 Inspector Rajinder Singh is star prosecution witness as he was Incharge of the police team which conducted the said operation on 5.4.00. As per him on 4.4.00 he was posted as Inspector Incharge, South District, Special Cell. On that day an incident of robbery of car No. DL-2CH-4471 of blue colour had taken place in the area of PS Lodhi Colony and a FIR No. 108/00 was registered. He was instructed by the senior officers to carry out search of robbed vehicle in the Trans Yamuna area. He alongwith ASI Rajinder Singh and HC Ram Kishan reached at Trans Yamuna area and due to efforts of HC Ram Kishan said vehicle was found parked in between flats of Mayur Vihar Phase-I. He kept surveillance of the vehicle as he suspected that the criminal FIR No. 71/00 page 6 of Page 16 may come there to take the vehicle from the spot and he remained there throughout the night. On 5.4.00 in the morning he summoned extra staff on the spot. SI Vi jender Singh, SI Akhl esh Yadav, SI Ranj ay Atrishya, SI Sunil Mittal, SI Vijay Chandel came to the spot alongwith the staff. He br iefed them and depl oyed them at di fferent points.
15. Elaborating the position of the different officials he has deposed that SI Pankaj Singh (PW-17) alongwith his staff was deployed at gate no.1. SI Ranjay Atrishya (PW18) and SI Sunil Mittal (PW5) were deployed at gate no.2. SI Akhlesh Yadav (PW8) was deployed at gate no.3 and SI Vijay Chandel was deployed at gate no.4. He alongwith ASI Rajinder Singh (PW11) and SI Vijender Singh (PW9) took the position near the vehicle. One official Tata Sumo was parked near the park. He and PW-9 asked few passerbys and residents of the flats to join the proceedings but none of them agreed. At about 4 p.m a white colour Maruti esteem bearing No. DL-3CH-3296 was stopped near the mercedes. One person came down from that car and came near the mercedes. That man was wearing white T shirt and bl ack pant. He went near the mercedes, opened the gate, sat inside it and started it. He alongwith PW11 and PW9 and other staff rushed towards the mercedes. On seeing the police party the boy sitting inside the mercedes got down and run towards esteem. They tried to nab hi m but he opened fire upon them with his revolver. PW11 opened fire with his service revolver in retaliation in order to nab him. PW-13 Ct. Arun tried to stop the esteem car by hitting on the front window glass but the boy managed to sit inside the esteem and proceeded in order to escape. Ct. Vishal tried to stop the car by placing his scooter ahead of the car but esteem hi t him and approached towar ds gate no.1. After seeing the police party car took turn to DDA market. They followed the car in Tata Sumo at gate No. 2. PW5 and PW-18 tried to stop the car but the person sitting in the esteem opened fire on them, to which PW18 retaliated by firing. The esteem car took right turn and approached FIR No. 71/00 page 7 of Page 16 towards gate no.3. In the melee the car hit against cycle. At gate no.3 PW8 alongwith his staff tried to stop the car, the occupants of the car opened fire upon the police and PW8 also did firing in retaliation. The car was reversed and they tr ied to intercept the car with Tata Sumo and the car hit against Tata Sumo but they managed to escape. PW 17 with his staff followed the car in his private Zen car. The car approached gate no. 4 and there SI Vijay Chandel was present. On seeing the police party car turned right and then took left turn. The car could not proceed further as there was wall. On this the two boys sitting inside the car tried to climb the wall. One person who was holding pistol fired upon PW-17 and PW17 and Ct. Rajvir also did retaliatory fire. PW-17 managed to apprehend one boy named Pradeep. PW16 and HC Shiv Kumar followed the boy who was carrying pistol. He alongwith PW11 and PW9 also followed that boy. He reached at roof of flat No. 412, Phase-1, Mayur Vihar. PW9 alongwith staff apprehended that boy alongwith his pistol. On checking the pistol by PW9 live cartridges were recovered. The pistol was unloaded. As accused Rohit was injured he alongwith accused Pradeep was taken to hospital. He prepared sketch of the pistol and cartridges and same were sealed after putting in a pulanda. T he mercedes car was also seized.
16. During cross PW4 has stated that he was in civil dress; in his presence IO did not lift any blood from the spot ; IO did not recover any empty bullet cartridges in his presence from the spot; IO had not recorded statement of owner of Flat No. 412, Mayur Vihar, Phase-1, Pocket-2 in his presence ; he does not remember whether IO has seized blood stained clothes of accused Rohit and Pradeep in his presence ; he had made departure entry in roznamcha maintained in the office of special staff on 4.4.10 ; he had mentioned in the roznamcha the purpose of his departure to P.S. Lodhi Colony. A specific question was put to the witness asking did he make any entry FIR No. 71/00 page 8 of Page 16 on 4.4.00 in the roznamcha that he was directed by the senior officers to search the Mercedes car and he had information that the car was parked in Trans Yamuna area. In reply to this question he has stated that he had mentioned in his departure entry that he was directed by the senior police officers to search this car but there was no entry that vehicle is parked in Trans Yamuna area nor he had any information that vehi cle was parked in Trans Yamuna ar ea.
17. During cross the witness has further stated that no written order was given to him by his seniors to search the vehicle in Trans Yamuna area ; after they located the vehicle in Mayur Vihar area no entry regarding finding it at his instance was made i n special staff roznamcha or any local police station ; the car was located at about 1-2 a.m in the intervening night on 4/5.4.00; he did not record statement of the owner of the flat under which the vehicle was parked ; he did not call IO of the FIR No. 108/00 P.S. Lodhi Colony ; he remained for about 24 hours at the spot i.e. Mayur Vihar after locating the vehicle ; he did not call any police official from the local P.S. Mayur Vihar during his 24 hours stay there; no entry regarding given intimation to his senior officers about locating the car was made in roznamcha ; 6-7 teams from South District in civil dress had reached at the spot on 5.4.00 in morning hours. The witness has further stated that accused Rohit had sustained bullet injuries in his left leg and another accused Pradeep sustained injuries on hi s hand.
18. PW9 Inspector Bijender Singh is the another member of the raiding team. Regarding details of the alleged encounter and apprehension of the accused persons he has also deposed similar facts as deposed by PW4. The other additional information divulged by him is that during the course of investigation in FIR No. 108/00 PS Lodhi Colony they developed secret information that after robbing the vehicle it has been parked somewhere in Mayur Vihar. They made the search and were finally able to trace the said vehicle parked in phase-
FIR No. 71/00 page 9 of Page 16 1, Pocket-II, Mayur Vihar. They got the information that this vehicle will be taken away by the robbers to some undisclosed place for selling, hence on 5.4.00 a trap was laid. During cross PW9 has stated that the informer had disclosed name of one of the cul prit as Rohi t but his name was not recorded by him in his record. A secret information about this case was received by them while they were investigating FIR No. 108/00 at Kalkaji but this information was not recorded at P.S. Kalkaji. The witness has further stated during cross that he had given this information to his seniors on telephone ; informer was with them when raid was conducted ; they did not seize the unattended Mercedes car as they were having information that it would be picked by the cr iminals ; he alongwith the raiding party waited from 7 a.m till 4 p.m when the accused arrived ; the information received by him was to the effect that the robbed vehicle has been parked at a particular place and would be picked up by the accused ; he remained at the spot from 7 a.m on 5.4.00 ti ll about 1.30 a.m of 6.4.00.
19. The statements of PW4 Inspector Rajinder Singh and PW9 Inspector Bijender Singh regarding the manner of locating the Mercedes car of FIR No. 108/00 is in direct contradiction to each other. As per PW4 there was no secret information and no secret informer and with the help of Ct. Ram Kishan the Mercedes car was found parked in Mayur Vihar, Phase-I. The vehicle was kept under surveillance as he suspected that criminals may come there to pick the vehicle. Whereas PW9 had a specific information that said vehicle i.e. Mercedes car No. DL-2CH-4471 has been parked somewhere in Mayur Vihar, they made search and finally able to trace the vehicle in pocket- II, Mayur Vihar Phase-I. PW-9 has also stated that when raid was conducted informer was with them. The statement of PW4 that after theft of the Mercedes car and lodging of the FIR No. 108/00 P.S. Lodhi Colony he alongwith his staff searched the vehicle in Trans Yamuna area and finally traced the vehicle in Mayur Vihar-I is unbelievable as FIR No. 71/00 page 10 of Page 16 well as in contradiction to statement of PW9. During cross PW4 has stated that they had searched the robbed vehicle at ITO, Shakarpur, Mandawali and Mayur Vihar. This contradiction in the statement of PW4 and PW9 creates shadow of doubt about the authenti city of the version of incident projected by pr osecution in this case.
20. PW11 SI Rajender Singh is another police official who was accompanyi ng PW-4 when Mercedes Car was located in Mayur Vihar Phase-I. Cross examination of this witness was deferred on 14.05.08 and subsequentl y he was not called and offered for cross-examination to the accused and due to this reason, his testimony cannot be read in evidence.
21. PW-5 Inspector Sunil Kumar, PW-8 Inspector Akhilesh Yadav, PW-17 Inspector Pankaj Singh, PW-18 Inspector Ranjay Artrishya along with PW-9 Inspector Bijender Singh are the police officials from South District who as per the prosecution story, reached at the spot in the morning on 05.04.00 on the direction of senior police officials. Their statements ar e broadly on similar lines as deposed by PW -4 and PW -9.
22. PW-12 Retired SI Kedar Nath proved mechanical inspection report of the scooter bearing No. DL- 7S-J-9184, Maruti Esteem bearing fake number plate having No. DL-3C-H-3296 and having original No. DLB- CC-2726 and Atlas cycle as Ex. PW12/A to C. As per mechanical report Ex. PW12/B of the Esteem Car, front bumper was bended and broken, front glass and left side of front door were found crack with a hol e. Even a hole was found i n the center of rear mirror.
23. All the prosecution witnesses i.e. PW-4, PW-5, PW-8, PW-9, PW- 11, PW-17 and PW-18 have deposed that a Chinese pistol was recovered from the possessi on of the accused Rohit and it was found containing two live cartridges. Ex. PW9/DA, Ex.PW17/A and Ex. PW17/B are the seizure memo of the empty shells on which words "
95311 was found engraved". These empty shells are stated to be FIR No. 71/00 page 11 of Page 16 recovered from near Gate No.3, DDA Flat Pocket II, Phase-I Mayur Vihar at Flat Nos. 400, 411, 428 and 429. To prove that country made pistol and cartridges recovered from the possessi on of accused Rohit are fire arms. Prosecution has examined PW23 Sh K. C. Varsheny, Assistant Director ( Ballistics) FSL Rohini. In his report Ex.PW23/A, PW23 has opined that empty shells were found to have been fired from pistol of .30 inch recovered from the accused. He also opined that pi stol and cartridges/ cartridges cases were ammunition/part of ammunition as defined in the Arms Act 1959.
24. Ld. Defence counsel for accused has assailed the entire prosecution case stating it to be concocted and fabricated. Ld. Defence counsel has contended that there are material contradictions in the statement of various police officials which go to the root of the matter. It has further contended that story of locating vehicle as given by PW-4 Incharge of Raiding Party is highly unbelievable and does not inspire confidence. He has further contented that despite the spot being thickly populated not a si ngle public witness was joined.
25. Various contradictions pointed out by Ld. Defence counsel are minor in nature which does not go to the root of the matter. The law is settled that contradictions and improvements in the statements of witnesses are bound to happen wi th the passage of ti me and no case i s free from these. Even if the majority of the contradictions pointed out by Ld. Defence counsel, which are minor in nature, are brushed aside, there are major improbabilities and contradictions in the statements of witnesses which render the entire prosecution case under shadow of grave doubt. The various points which demolishes the prosecution case are as follows :-
(i) There are major contradictions in the statements of PW4 and PW9 regarding the manner in which the Mercedes car stolen FIR No. 71/00 page 12 of Page 16 from the area of PS Lodhi Colony was located in the area of PS Mayur Vihar at Mayur Vihar Phase-1. As per PW4 who was incharge of the raiding team the vehicle was traced with the help of Ct. Ram Kishan being parked in Mayur Vihar, Phase-1. As per him before locating the vehi cle in the area of Mayur Vihar, Phase-1 he had searched this vehicle at ITO, Shakarpur, Mandawali and Mayur Vihar. Whereas PW9 has stated that they had specific information that said vehicle was parked somewhere in Mayur Vihar and they wer e able to trace the vehicle in pocket-2, Mayur Vihar, Phase-1. PW9 has also introduced a secret informer in the story who gave i nformation to the police about this vehicle and who reached with the police party at the spot. The testimony of PW4 and other police officials is dead silent about the role of any secret informer in helping the police to locate the Mercedes car in Mayur Vihar, Phase-1 and reaching of the said secret informer at the spot wi th the pol ice party.
(ii) As per the prosecution story police party was in search of Mercedes car which was robbed from the area of PS Lodhi Colony and for which FIR No. 108/00 was registered. Police was able to locate this car in pocket-2, Mayur Vihar, Phase-1 and this car was put on surveillance with the hope that the culprits will come to col lect it. All the police officials were from different police stations except PW4 who was Inspector Incharge of South District Special Cell. But no police official from PS Lodhi Colony was involved in this entire operation allegedly conducted by the police under the supervision of PW4. As per PW4 he was directed by his seniors to locate this vehicle and after locating the vehicle in Mayur Vihar he summoned extra staff at the spot and accordingly the other police officials i.e. PW17, PW18, PW5, PW8, PW11 and FIR No. 71/00 page 13 of Page 16 PW9 with other staff members reached at the spot. PW4 has admitted during his cross that after locating the vehicle in Mayur Vihar area no entry regarding this was made at his instance either in special staff roznamcha or any other police station. So much so it is admitted by PW 4 that even IO of F IR No. 108/00 of PS Lodhi colony was not called at the spot after locating the said vehicle. PW4 also admitted that no entry regarding giving intimation to senior officials about locating the car was made in roznamcha and no intimation was given to local police station i.e. P.S Mayur Vihar. Normally local police in whose jurisdiction the offence got committed investigates a matter. Even if the senior officers directed Inspector Incharge of Special Cell of South District to search the robbed vehicle, I do not find any illegality involved in it.
But at least there should be some proof at least a DD entry in roznamcha of Special Cell or concerned P.S regarding the progress in the investigation done by the police team but as already discussed no proof regarding that has been brought on record by the prosecution. The very genesis of constitution of the police team headed by PW4 and the subsequent massi ve deployment of other police officials at the spot appear s to be doubtful .
(iii) As per PW4 he remained at the spot for about 24 hours without intimating the local police. As per him he located the vehicle at about 1 to 2 a.m of the intervening night of 4/5.4.00 and he remained stationed there with the hope that suspected criminals will come there to take the vehicle from the spot and in the morning he summoned extra staff at the spot. The massive deployment of staff at the alleged spot waiting for the culprits appears to be contrary to normal police working. I find no cogent reason in the testimonies of police officials FIR No. 71/00 page 14 of Page 16 examined by prosecution for this massive deployment. This further throws dust of doubt on the pr osecution story.
(iv) The entire incident having been happened in thickly populated area and under the open glare of the public, the non-joining of the public witness by the police in the entire operation, put dent on the prosecution version of the incident. Though simply on the ground of non-joining of the public witnesses, the testimonies of the police officials cannot be disbelieved but keepi ng in view the facts of thi s case, as some police officials remained at the spot for almost 24 hours, a Mercedes car remain parked in front of the flats, as per the allegations police parties were fired upon by the accused persons and police party did retaliatory fire on the vehicle being driven by accused, accused Rohit was apprehended from the roof of the flat and above al l the enti re operation took place in the broad day light at about 4 p.m., the joining of the public witnesses assume importance. Certainly, non-joining of the public witnesses in this case put shadow of doubt on the testi monies of various police officials.
26. As per the prosecution case in the encounter this accused as well as accused Pradeep Bhardwaj (P.O) sustained injuries. Accused Rohi t sustained bullet injury in his leg and both wer e sent to hospital in the company of PW5 for medical treatment. But prosecution has failed to produce MLCs of both these accused persons, which to my mind would have supported the prosecution story. When both the accused after their apprehension from the spot, as per the prosecution story, were taken to GTB Hospital with PW5 then why their MLCs were withheld and not filed on record, no explanation to thi s regard has come on r ecord.
FIR No. 71/00 page 15 of Page 16
27. As per the prosecution story the police officials stationed at different gates did retaliatory fire on the accused persons who were trying to flee from the spot in the esteem car. The weapons of the police officials were seized but none of the weapon was sent for ballistic examination. The examination of official weapon of the police officials and the empty cartridge case by ballistic expert would have proved the use of official weapons by the police officials as alleged by them in their respective testimonies. Again no explanation has come from the prosecution that why opinion of the ballistic expert was not sought on the official weapons of the police officials seized after the alleged encounter . Moreover, in the sei zure memo of the esteem car Ex.PW17/C not a single bullet mark is mentioned on the chasis of the car. Even in mechanical inspection report of the Esteem car Ex.PW12/B no bullet mark has been shown on the chasis of the car. As per the prosecution story three different police parties fired at the esteem car while accused were trying to flee from the spot but as already discussed not a single bullet hit the chasis of the car. It further create shadow of doubt on the prosecution story.
28. In view of the various facts and circumstances discussed above, I hold that prosecution has failed to prove its case beyond reasonabl e doubt against the accused Rohit. I thereby acquit the accused Rohit from the offences punishable u/s.
186/332/353/307/34 IPC and u/s. 27 Ar ms Act.
29. The accused Pradeep being P.O., the evidence led by prosecution will be appreciated against him as and when he got arrested.
FIR No. 71/00 page 16 of Page 16
File be consi gned to r ecord room.
Announced i n the open Cour t ( SANJAY GARG )
on 3rd day of August, 2010 Addl. Sessions Judge ( East)
FTC, Karkardooma Courts:
DELHI.
FIR No. 71/00 page 17 of Page 16