Delhi District Court
State vs ) Shamsuddin Khan on 19 December, 2007
-:1:-
IN THE COURT OF SH. NARINDER KUMAR
ADDL. SESSIONS JUDGE, FAST TRACK COURTS
ROHINI : DELHI
SC No. 122/2006 dated 10/2/2006
Date of Decision: 19th of December, 2007
State
Versus
1) Shamsuddin Khan
S/o Maqbool Khan
R/o C-21/23, Shahbad Dairy,
Delhi
2) Sarvan Kumar
Son of Sh. Sahab Singh,
R/o House NO. 26/14,
C-Block, Shahbad Diary,
Delhi.
3) Sanjay @ Jai Prakash
Son of Sh. Shobnath,
R/o House No. C17/39,
Shahbad Diary, Delhi.
4) Munna
Son of Sh. Raghu
R/o House No. C-68
Shahbad Diary, Delhi.
5) Sarfaraj @ Tunda (Since deceased)
FIR No. 463/2005
Police Station Bawana
Under Section 399, 402 IPC & 25 of Arms Act
-:2:-
JUDGMENT
First the Facts Initially five accused,namely,Shamsuddin Khan, Sarvan Kumar, Sanjay @ Jai Prakash, Munna and Sarfaraj @ Tunda accused were challaned by the police of Police Station Bawana for offences U/s. 399 and 402 IPC and 25 of the Arms Act. During pendency of trial, Sarfaraj @ Tunda accused left this world and that is how, the remaining four accused have been facing trial.
Allegations levelled against the accused persons are that on 12.11.2005 at about 9 p.m., all of them assembled at a deserted building, in front of Sai Dharam Kanta, in the area of Bawana, Delhi, for the purpose of committing dacoity, and that at that time, they were armed with country made pistol, lathis, iron rod and knife.
Case of prosecution is that on the night intervening 7/8-11-2005, Gopal was serving as a watchman at a factory of Vicky in the area of Prahladpur, Delhi. Brahm Dev was serving as a Supervisor in the said factory and he too was present there alongwith Gopal. At about 01:30 a.m., nine/ten persons forcibly entered the factory after breaking -:3:- open the lock and opening the shutter. One of those nine/ten persons wrapped a piece of cloth around the mouth of Gopal. Hands of PW Gopal were also tied at his back and then he was thrown on the ground. Two of the aforesaid nine/ten persons remained by his side. At about 02:30 a.m., the aforesaid two persons went away and thereupon Gopal got up. Brahm Dev was also over-powered by aforesaid nine/ten persons and his hands were found tied as seen by PW Gopal when he got up. Prior thereto Gopal heard some persons threatening Brahm Dev not to raise alarm otherwise he would be shot. Gopal then went to one Naresh in the adjoining factory and apprised him of the facts and situation. Case is registered As per prosecution case, police party headed by SI Surender Kumar Gulia, reached near the deserted building, in the area of Bawana, on the basis of secret information that persons were present there and planning to commit dacoity. On reaching near the deserted building, Constable Surender was sent forward to overhear the conversation between the persons stated to be present inside the building. After overhearing conversation, the Constable gave stipulated -:4:- signal to the other members of the raiding party, present at a distance, and it was thereupon that the raiding party overpowered the accused persons. At that time, one country made pistol loaded with one live cartridge was recovered from Shamshuddin Khan accused; Sarfarj and Sanjay @ Jai Prakash accused were found in possession of one lathi each; Sarvan accused was found in possession of a knife whereas Munna accused was found in possession of an iron rod. Ruqqa was sent from the spot which led to registration of this case.
Investigation starts
SI Madan Lal took up investigation after
registration of the case and collected two sealed parcels purported to contain country made pistol and one live cartridge and knife. He is also stated to have seized two lathis and iron rod, referred to above. Rough sketches of country made pistol and the knife were prepared. Statements of witnesses were recorded.
On 29/11/2005, Head Ct. Mahender Singh, the concerned MHC (M) got dispatched one sealed parcel bearing the seals of SKG, to FSL Rohini vide RC No. -:5:- 179/21/05 through ASI Madan Lal, who in turn deposited the same at FSL, and on return deposited the receipt with the MHC (M). Entry was made in the register. Report was obtained from FSL.
Braham Singh, the Additional DCP (North West), accorded sanction for prosecution of Shamsuddin accused for the offence u/s 39 of the Arms Act in respect of recovery of country made pistol .315" bore and 8 mm live cartridge from his possession.
On completion of investigation, challan was put in court.
After compliance with provisions of section 207 Cr.P.C., case came to be committed to Hon'ble Court of Session.
Charge Prima facie case having been made out, charge for offences u/s 399 and 402 IPC was framed against all the five accused on 03.03.2006. Additional charge for the offence U/s. 25 of the Arms Act was also framed. Since the accused persons pleaded not guilty and claimed trial, prosecution was called upon to lead evidence.
-:6:-
As noticed above, Sarfaraj @ Tunda accused left this world during pendency of the trial and that is how, the remaining four accused have been facing trial.
In order to prove its case, prosecution examined following 14 witnesses:
PW1 HC Rajinder Singh has proved recording of DD No. 19 Ex. PW1/A. PW2 ASI Prem Singh has proved recording of FIR Ex. PW2/A. PW3 Gopal has been examined to prove commission of dacoity at the factory in the area of Prahladpur, Delhi, where he was employed as a Watchman and Braham Dev was serving as a Supervisor.
PW5 HC Mahender Singh is the concerned MHC(M) with whom the case property was deposited by SI Sudhir Kumar Gulia on return to the police station. He has also been examined to prove dispatch of sealed parcel to FSL on 29.11.2005 through SI Madan Lal.
PW6 Constable Gajender, PW7 Constable Bhim Singh, PW10 Constable Mandeep Singh, PW11 Constable Surender Kumar and PW14 SI Sudhir Kumar Gulia have deposed about the manner in which the raid was conducted -:7:- and recoveries were made from the accused persons.
PW8 SI Man Singh and PW9 HC Shashi Prabha have deposed about case FIR No. 212/05 of PS Gulabi Bagh.
PW12 ASI Madan Lal has deposed about investigation conducted by him after registration of the case.
PW13 Sh. Braham Singh, Additional DCP, has proved sanction Ex. PW13/A accorded for prosecution of Shamshuddin Khan accused.
When examined U/s. 313 CrPC, the accused persons have denied all the incriminating circumstances appearing in evidence against them and claimed false implication.
In defence, Sarvan accused has examined his wife Smt. Nasreen as DW1; Sanjay @ Jai Prakash accused has also examined his wife Smt. Saroj as DW2 and Shamshuddin Khan accused has examined his mother Mst. Mehmoonisha as DW3. These witnesses have been examined in defence to prove that in the early hours of 11.11.2005, Sarvan, Sanjay @ Jai Prakash and Shamshuddin accused were taken away from their respective house and then falsely implicated.
Arguments heard. File perused.
-:8:-Discussion Learned Additional Public Prosecutor has referred to the statements of PW6, PW7, PW10 and PW14, and argued that from their cogent and convincing evidence, it stands established that all the five accused persons were arrested on 12.11.2005 at about 9 p.m, from a deserted place near Sai Dharam Kanta, in the area of Bawana, and that recoveries of pistol, knife, lathis and iron rod were made from them, and as such, all the accused persons are liable to be convicted and sentenced for the offence U/s. 399 IPC. It has also been submitted that charge for the offence under the Arms Act also stands proved against the accused persons.
On the other hand, learned counsel for the accused persons have contended that case of prosecution is based on the statements of police officials as no witness from the public was associated before conducting raid or at the time the deserted building was going to be raided or during the investigation. It has also been submitted that there are material contradictions in the statements of the police officials which make their presence on the given date, time and place highly doubtful, and as such, no reliance should be placed on their statements. It has also been argued that prosecution has -:9:- failed to rule out possibility of tampering with the case property, and as such, possibility of planting of weapons by the police cannot be ruled out, and all the accused persons are entitled to acquittal.
Secret Information is received and police party leaves for the spot.
As per sequence of events put forth by learned Addl. PP, the raiding party is alleged to have reached near the deserted house in the area of Bawana after receipt of secret information. DD No. 19 Ex.PW1/A recorded at Police Post Shahbad Diary, Bawana, would reveal that it was recorded at 8 p.m. and the secret information received by PW14 SI Sudhir Kumar Gulia, was to the effect that many boys were present in the deserted house lying constructed over DDA Land near Sai Dharam Kanta and that they were planning to commit dacoity. Information further revealed that those boys were armed with fire arms and that they could be apprehended in case raid was conducted. It was on the basis of this secret information that SI Sudhir Kumar Gulia accompanied by Head Constable Harjinder, Constable Gajender, Ct. Manoj, Ct. Bhim Singh, Ct. Surender and Constable Mandeep left for the disclosed place. Out of these police officials, Constable -:10:- Gajender, Constable Mandeep Singh, Constable Surender Kumar and SI Sudhir Kumar Gulia have stepped into the witness box as PW6, PW10, PW11 and PW14 respectively. PW Constable Manoj and Head Constable Harjinder Singh have not been been examined in this case.
As per contents of DD entry Ex.PW1/A, secret informer was also taken along. However, a perusal of statement of PW6 Ct. Gajender, PW10 Constable Mandeep Singh and PW11 Constable Surender Kumar would reveal that they nowhere deposed if the secret informer also accompanied them from the police post. Had the secret informer accompanied any such police party, these four PWs namely PW6 Ct. Gajender, PW7 Ct. Bhim Singh PW10 Constable Mandeep Singh and PW11 Constable Surender would not have omitted to state about presence of the secret informer in the party.
According to PW14 SI Sudhir Kumar, the secret informer left the place where they were present, before entering the deserted place. The fact remains that that no person from the public was associated or taken along at the time the police party left the police post and reached near Sai Dharam Kanata. It has come in evidence that Sai Dharam -:11:- Kanta was at a short distance from the deserted house. No one was called from the said Dharam Kanta before conducting raid. It has also come in evidence that persons from the public were passing by the side of the raiding party present near the main road. The fact remains that no person from the public was joined in the party before or at the time raid was conducted at the deserted house. It is well settled that statements of official witnesses cannot be rejected outrightly merely because of their official status but absence of corroboration from independent source puts the court on guard to scrutinize statements of police officials with more care and caution. In the case in hand, it cannot be said that the raiding party had no opportunity to take along or join any witness from the public. Therefore, absence of corroboration from independent source puts the court on guard to evaluate the testimony of official witnesses with caution. Constable goes to overhear conversation Case of prosecution is that PW11 Constable Surender Kumar was sent to the deserted house with the direction to overhear conversation of the persons present there and give a signal to the other members of the party by placing his hand over his head after hearing the conversation. -:12:-
According to PW11 Constable Surender Kumar, after he was so directed by SI Sudhir Gulia, he reached the deserted house and found that persons present in the deserted building were talking that they would commit dacoity at the Bhati of Gyan at Prahladpur. The police party headed by SI Sudhir Kumar Gulia is stated to have reached near Sai Dharam Kanta at about 08:30 p.m. According to PW11 Constable Surender Kumar, only he reached near the vacant kotha to overhear conversation between the persons present there. It finds mentioned in the ruqqa that SI Sudhir Gulia directed the constable first of all overhear the conversation, then to be of firm information and thereafter to give a signal. It is not case of prosecution that PW11 Constable Surender Kumar returned from near the deserted house and told SI Sudhir Gulia as to what conversation had taken place between the persons present inside the building. According to PW14 SI Sudhir Gulia, Constable Surender Kumar did not come to the other members of the party. He further stated that the constable did not tell them anything after giving a signal. It is not believable that without hearing anything from constable Surender Kumar as to what he had heard from inside the deserted building, a raid was conducted at the -:13:- deserted building. This fact creates doubt that constable Surender Kumar heard any conversation regarding any planning for commission of dacoity. Had any such conversation taken place, ordinarily SI must have joined any such person, namely, Gyan of Prahladpur if he had received any threat from anyone regarding commission of dacoity at his Bhati. There is no evidence on record to suggest if any bricklin was being run by any such person of Prahladpur so as to lend corroboration to the version of prosecution that any such planning could took place between the accused persons on the given date, time and place.
Arrest and recovery from accused persons As per prosecution version, Constable Manoj and Constable Gajender apprehended Sanjay @ Jai Prakash accused; Constable Surender Kumar apprehended Munna accused; Constable Bhim Singh apprehended Sarfaraj accused; Constable Mandeep apprehended Sarvan Kumar accused and Head Constable Harjinder Singh apprehended Shamsuddin Khan accused.
PW6 Constable Gajender while making statement in court deposed that he and constable Manoj apprehended -:14:- Sanjay accused. Further according to PW6 Ct. Gajender, lathi Ex.P1 was recovered from Sanjay accused. He also deposed about recovery of knife from Sarvan Kumar accused and that Shamsuddin Khan accused was found in possession of a countrymade pistol.
It may be mentioned here that in his chief examination, the witness nowhere stated about recoveries from Sarfaraj and Munna accused and in this regard he was put leading questions by learned Addl. PP for State after seeking permission from the court. It was thereupon that he admitted to have stated before the investigating officer that iron rod was recovered from Munna accused and one lathi was recovered from Sarfaraj accused.
It may be mentioned here that PW6 did not depose that the country made pistol recovered from Shamsuddin accused was found loaded with live cartridge. It was only when the case property was produced in court that he identified the pistol as Ex.P4 and cartridge case Ex.P5. Had any recovery being made from Sarfaraj and Munna, the witness could not have omitted to state so without being put leading questions by learned Addl. PP. In such a situation, he would not have omitted to depose that the country made pistol -:15:- recovered from Shamsuddin accused was found loaded with a live cartridge.
Then there is statement of PW7 Constable Bhim Singh. He deposed about arrest of Sarfaraj accused by him and recovery of lathi Ex.P2 from his possession. It may be mentioned here that out of two lathies produced in court, the witness pointed out towards the longer one as the one recovered from Sarfaraj accused, exhibited as Ex.P2.
As noticed above, according to PW6 Constable Gajender Ex.P1, the lathi, was recovered from Sanjay accused.
It may be mentioned here that PW10 Constable Mandeep Singh identified lathi Ex.P1 as the one recovered from Sarfaraj accused and lathi Ex.P2 recovered from Sanjay @ J.P. Accused. In this manner, he has not supported the case of prosecution or the statements of PW6 and PW7, so far as the identity of the lathies recovered from their possession is concerned.
Case of prosecution is that Shamsuddin accused was apprehended by Head Constable Harjinder Singh. He has not been examined by the prosecution despite opportunity.
-:16:-
PW10 Constable Mandeep Singh and other PWs namely PW11 Constable Surender Kumar, PW7 Constable Bhim Singh and PW14 SI Sudhir Gulia, deposed about recovery of countrymade pistol and one live cartridge from Shamsuddin accused. It is case of prosecution that the countrymade pistol and the cartridge were turned into a parcel, sealed with the seal bearing impression 'SKG' and after use the seal was handed over to Head Ct. Harjinder. In the given circumstances, it was for the prosecution to examine Head Constable Harjinder Singh to prove factum of handing over of seal to him after its use in sealing the case property. However, Head Constable Harjinder Singh has not been examined to prove the factum of entrustment of seal to him by the Sub Inspector. Had the Head Constable stepped into the witness box, he could be cross examined as to when SI collected the seal from him, so as to rule out possibility of tampering with case property. With the non examination of Head Constable Harjinder Singh, it becomes doubtful if the seal was actually handed over by the SI Sudhir Gulia to the head constable and as such possibility of tampering with the case property cannot be ruled out.
As regards recovery of knife, PWs have deposed -:17:- that it was recovered from Sarvan accused. Case of prosecution is that knife was also turned into the parcel, sealed with the seal bearing impression 'SKG'. The fact remains that the head constable Harjinder Singh to whom the seal is stated to have been handed over has not been examined to prove factum of entrustment of seal and also to explain as to what seal was returned by him to SI Sudhir Gulia. Therefore, possibility of tampering with the case property i.e. the knife, stated to have been recovered by Sarvan Kumar accused, also cannot be ruled out. Identification of some accused.
Case of prosecution is that after the above referred to five accused persons were arrested, they were identified by PW3 Gopal, as the persons who had unlawfully entered the factory of one Vicky in the area of Parahladpur, Delhi, and committed robbery there on the night intervening 07/08-11-2005. However while appearing in court as PW3, Gopal did not support the case of prosecution. He deposed about criminal trespass by 9/10 persons in the factory of Vicky in the area of Prahladpur on the night intervening 07/08-11-05 but denied that on 13/11/2005 he identified Shamsuddin, Munna, Sarfaraj and Sarvan accused at his factory or that any -:18:- of these accused were brought to the said factory on that day. The witness denied to have stated so before the investigating officer. He categorically denied to have stated before the police that Shamsuddin accused aimed pistol at Brahm Dev, Supervisor of the Factory. He further denied that Sarvan accused aimed knife at him and threatened not to raise alarm. He also denied to have stated before the investigating officer that on seeing Sanjay and Munna accused, he identified them as the persons who had tied him and Brahm Dev. It was suggested to the witness by learned Addl. PP that he was intentionally not identifying these persons as culprits, but the witness categorically denied this suggestion. In his cross examination, witness stated that police obtained his signatures on some documents, contents of which he had not gone through. Thus, PW3 Gopal has not supported the case of prosecution.
In view of the material contradictions in the statements of prosecution witnesses, as discussed above, when there is no corroboration from independent source, when prosecution has failed to rule out possibility of tampering with the case property and when the family members of Sarvan Kumar, Sanjay and Shamsuddin accused -:19:- have come and deposed in court that they were taken away from their respective house in the early hours on 11/11/2005, this court comes to the conclusion that prosecution has failed to substantiate the accusation levelled against any of the accused. Consequently all these accused namely Shamsuddin Khan, Sarvan Kumar, Sanjay @ Jai Prakash and Munna, are acquitted in this case, extending to them benefit of doubt.
Case property be destroyed in accordance with rules on expiry of period of appeal/revision, if none is preferred or subject to decision thereof.
File be consigned to record room.
Announced in Open Court on 19th of December, 2007 ( Narinder Kumar) Additional Sessions Judge Fast Track Courts Rohini : Delhi