Delhi District Court
State vs . (1). Raju @ Ganja on 3 November, 2014
FIR No. 940/06; U/s 307/186/353/201/34 IPC; P.S. Nangloi D.O.D.: 03.11.2014 IN THE COURT OF SHRI VIDYA PRAKASH: ADDL. SESSIONS JUDGE04 (NORTH): ROHINI COURTS: DELHI Session Case No. 100/14 Unique Case ID No. 02404R6287292004 State Vs. (1). Raju @ Ganja S/o Sh. Rohtas R/o RZA21, Nihal Vihar, Nangloi, Delhi. (2). Ravinder @ Arjun S/o Sh. Sarwan Kumar R/o Village Lalpur, P.S. Babugarh, Tehsil Hapur, Ghaziabad, U.P. (3). Ravinder Kumar @ Sadhu S/o Sh. Rajpal R/o H. No. 13, Sarai Jheel, Manglapuri, New Delhi (4). Deepak @ Deepu S/o Sh. Subhash Chand R/o B131, Camp No. 4, Jwalapuri, Delhi (5). Javed @ Ganju S/o Sh. Isran R/o B165, Camp No. 4, Jwalapuri, Delhi (6). Jitender @ Golu S/o Sh. Rajender State V/s Raju @ Ganja etc. ("Acquitted") Page 1 of 22 FIR No. 940/06; U/s 307/186/353/201/34 IPC; P.S. Nangloi D.O.D.: 03.11.2014 R/o A407, Camp No. 4, Jwalapuri, Delhi FIR No. : 940/06 Police Station : Nangloi Under Sections : 307/186/353/201/34 IPC Date of committal to Sessions Court : 08.12.2006 Date on which judgment was reserved: 03.11.2014 Date on which Judgment pronounced : 03.11.2014 JUDGMENT
The above named accused persons had been facing trial in respect of offences u/s 307/186/353/201/34 IPC on the allegations that on 11.09.2006, Ct. Sukhbir (PW1) alongwith Inspector Jai Prakash (PW6), HC Amar Pal (PW8), HC Devender Singh (PW10), HC Subhash and Ct. Ranbir Singh (PW2) were on patrolling duty. At about 11.30 p.m., while the said police officials were present near Daler Mahndi Farm House, secret information was received by SI Jai Prakash that some criminals would come towards Sayyad Nangloi side on motorcycles and they are having illegal weapons and would be going towards Nihal Vihar side and if raided, they can be apprehended. It is alleged that on receipt of information, SI Jai Prakash asked 56 public persons to join the raiding party but they refused and while showing inability, they all went away without disclosing their names and addresses. At about 12.00 noon, the aforesaid police personnels put the barricades near police booth on Shamshan ghat road and they started State V/s Raju @ Ganja etc. ("Acquitted") Page 2 of 22 FIR No. 940/06; U/s 307/186/353/201/34 IPC; P.S. Nangloi D.O.D.: 03.11.2014 checking vehicles. At about 12:30 p.m, two motorcycles were seen coming from the side of Sayyed Nangloi and three persons were sitting on each motorcycle.
It is further alleged that accused persons were given signals to stop their motorcycles and the police personnel closed the barricades. Near 1520 paces before the barricades, the accused persons stopped their motorcycles and took Uturn and tried to run away from there in haste, as a result of which their motorcycle had fallen down. Accused persons exhorted together that "pakde nahi jane chahiye, police par fire karo". Pillion rider sitting as the last person on both the motorcycles, fired towards the police party with the country made pistols carried by them and they succeeded to run away towards Nihar Vihar. Ct. Sukhvir and Ct. Ranvir chased them by running towards them but they succeeded to run away from the spot.
It is further alleged that accused Raju @ Ganja i.e. motorcycle driver of the black colour motorcycle make Pulsar, was apprehended by SI Jai Prakash (PW6). The pillion rider of said motorcycle i.e. accused Deepak, was apprehended by HC Amar Pal (PW8). Accused Jitender @ Golu was sitting as last person on the motorcycle driven by accused Raju @ Ganja but he managed to run away from the spot. Another motorcycle of red colour make Pulsar bearing registration no. DL4SBH1590 was being driven by accused Arjun who was apprehended by HC Subhash. The pillion rider sitting on motorcycle bearing registration no. DL4SBH1590 i.e. accused Javed @ Ganju was apprehended by HC Devender Singh (PW10). Accused Ravinder State V/s Raju @ Ganja etc. ("Acquitted") Page 3 of 22 FIR No. 940/06; U/s 307/186/353/201/34 IPC; P.S. Nangloi D.O.D.: 03.11.2014 @ Sadhu Balmiki managed to run away from the spot.
It is further alleged that from the possession of accused Raju @ Ganja, one loaded country made pistol was recovered from his right dub and on checking the said country made pistol, a live cartridge was taken out. From the possession of accused Deepak, one loaded country made pistol of .315 bore was recovered from his right pant dub and on checking the said country made pistol, a live cartridge was taken out. From the possession of accused Arjun, one loaded country made pistol from his right pant dub was recovered and on checking the said country made pistol, a live cartridge was taken out. From the possession of accused Javed, one buttondar knife was recovered from his right pant pocket.
The sketches (Ex.PW6/A1 to Ex.PW6/A4) of all the recovered weapons were prepared by SI Jai Prakash who also sealed the pullandas containing country made kattas and live cartridges recovered from the possession of accused with the seal of JP and seized the same.
Likewise, SI Jai Prakash also sealed the pullanda of buttondar knife recovered from the possession of accused Javed @ Ganju with the seal of JP and seized the same. SI Jai Prakash also seized both the aforesaid motorcycles and filled FSL forms with regard to recovery of country made pistols and handed over the seal after use to Ct. Sukhbir (PW1). SI Jai Prakash prepared rukka (Ex.PW6/D) and handed over the rukka to Ct. Ranbir Singh (PW2) for registration of FIR.
After registration of FIR, investigation was entrusted to ASI Naresh Kumar (PW12) who accompanied Ct. Ranbir Singh to the place of State V/s Raju @ Ganja etc. ("Acquitted") Page 4 of 22 FIR No. 940/06; U/s 307/186/353/201/34 IPC; P.S. Nangloi D.O.D.: 03.11.2014 occurrence i.e. Shamshan Ghat Road, near police booth, Chand Vihar, Delhi, where he met SI Jai Prakash, HC Devender, HC Subhash, HC Amar Pal and Ct. Sukhbir. SI Jai Prakash handed over the seizure memos and sketches prepared by him and also handed over four pullandas to ASI Naresh Kumar bearing the seal of JP, two motorcycles and their seizure memos (Ex.PW6/C1 and Ex.PW6/C2) and also produced accused persons namely accused Raju, Deepak, Javed and Arjun before him.
ASI Naresh Kumar prepared site plan (Ex.PW12/A) and recorded the statement of SI Jai Prakash and thereafter, SI Jai Prakash left the spot. ASI Naresh Kumar effected the arrest of accused persons and also conducted their personal search. ASI Naresh Kumar also recorded disclosure statements of said accused persons.
It is further alleged that during the investigation of the present case on 17.09.2006, while ASI Naresh Kumar (PW12) alongwith Ct. Ranbir Singh Gulia (PW2) and Ct. Sukhbir (PW1) were present at Himgiri Enclave, near ganda nala, there on the basis of information given by one informer, accused Ravinder Kumar @ Sadhu was apprehended and after interrogation, he was arrested vide memo (Ex.PW12/E) and his personal search was conducted vide memo (Ex.PW12/F). Accused Ravinder Kumar @ Sadhu also pointed out the place of commission of offence vide memo (Ex.PW1/E) and said accused made disclosure statement (Ex.PW12/G).
It may be mentioned here that accused Jitender @ Gollu was arrested subsequently after filing of the main charge sheet before the Court.
It is alleged that accused Jitender @ Gollu surrendered himself State V/s Raju @ Ganja etc. ("Acquitted") Page 5 of 22 FIR No. 940/06; U/s 307/186/353/201/34 IPC; P.S. Nangloi D.O.D.: 03.11.2014 before the Court on 16.11.06 and after seeking permission of the Court, the said accused was interrogated and formally arrested in this case. During judicial TIP of said accused, he was correctly identified by witness namely Ct. Ranbir on 23.11.06.
After completion of investigation, chargesheet had been filed before the Court.
After compliance of section 207 Cr.P.C., the case was committed to the Court of Sessions and was assigned to Ld. Predecessor of this Court.
After hearing arguments on the point of charge, Ld. Predecessor of this Court was pleased to frame the charge u/s 307/34 IPC against six accused persons vide order dated 20.02.2008 and separate charges in respect of offence U/s 25 Arms Act were also framed against accused persons namely Raju @ Ganja, Arjun, Javed @ Ganju and Deepak @ Deepu, to which all the six accused persons pleaded not guilty and claimed trial.
In support of its case, prosecution has examined as many as nine witnesses namely PW1Ct. Sukhbir, Ct. R.B Guliya, PW3 ASI Tarif Singh, PW4 Ct. Jaswant Singh, PW5 WHC Sudesh, PW6 Inspector Jai Parkash, PW7 Sh Rakesh Kumar, Ld ACJ(West) Tis Hazari Courts, Delhi, PW8 ASI Amar Pal, PW9 HC Ajay Kumar, PW10 ASI Devender Singh, PW11 ASI Dalbir Singh, PW12 SI Naresh Kumar and PW13 Sh A.K Lal, during trial till 17.09.2014.
Thereafter, statements U/s 313 Cr.P.C. of all the six accused persons were recorded during which all the incriminating evidence were put to them which they denied. The defence of all the accused persons is of State V/s Raju @ Ganja etc. ("Acquitted") Page 6 of 22 FIR No. 940/06; U/s 307/186/353/201/34 IPC; P.S. Nangloi D.O.D.: 03.11.2014 general denial. All the accused claimed that they have been falsely implicated in this case. However, all the accused persons did not wish to lead Defence Evidence.
I have heard Sh. Pankaj Bhatia, Ld. Addl. PP on behalf of State and ld. Amicus Curiae Ms. Dhaneshwari Adv. for all six accused persons. I have also gone through the material available on record.
Before discussing the rival submissions made on behalf of both the sides, it would be appropriate to discuss, in brief, the testimonies of prosecution witnesses examined during trial. The testimonies of prosecution witnesses is detailed as under: POLICE WITNESSES: PW1 Ct. Sukhbir, PW2 Ct. R.B Gupta, PW6 Inspector Jai Parkash( the then SI), PW8 ASI Amar Pal( the then HC) and PW10 ASI Devender Singh : According to the case of prosecution, these five witnesses were on patrolling duty on 11.09.06 and were checking the vehicles when at about 11.30 A.M, secret informer informed SI Jai Parkash that 34 boys having weapons in their possession, would come from the side of Sayeed Nangloi on motorcycles and could be apprehended.
All the aforesaid witnesses deposed on the lines of prosecution story during chief examination. They also deposed about the writing work carried out at the spot after apprehension of accused persons namely Raju @ Ganja, Arjun, Deepak @ Deepu and Javed.
They further deposed about the preparation of separate pullandas of State V/s Raju @ Ganja etc. ("Acquitted") Page 7 of 22 FIR No. 940/06; U/s 307/186/353/201/34 IPC; P.S. Nangloi D.O.D.: 03.11.2014 arms and ammunitions recovered from the possession of said accused persons, sealing thereof with the seal of JP and there consequent seizure by SI Jai Parkash. They also identified said arms and ammunitions during chief examination. The knife allegedly recovered from the possession of accused Javed, has been exhibited as Ex P1, country made pistol of .315 bore and test fired cartridge allegedly recovered from the possession of accused Deepak, have been exhibited as Ex P2 and Ex P3, country made pistol of .332 bore and test fired cartridge allegedly recovered from the possession of accused Arjun, have been exhibited as Ex P4 and Ex P5 and country made pistol of .315 bore and test fired cartridge allegedly recovered from the possession of accused Raju, have been exhibited as Ex P6 and Ex P7.
All the aforesaid five witnesses have been cross examined at length on behalf of accused persons.
PW3 ASI Tarif Singh: This witness was posted as MHC(M) in PS Nangloi during the relevant period. He deposed that on 11.09.06, ASI Naresh Kumar(IO) had deposited four mobile phones two of which were of make Nokia and other two were of make Samsung, besides four sealed pullandas duly sealed with the seal of JP alongwith copies of seizure memos and two motorcycles make Pulsar of black colour, in Malkhana vide entry at serial no. 5636 in register no. 19. He proved copy thereof as Ex. PW3/A. He further deposed that on 25.09.06, exhibits of the case were sent to FSL, Rohini vide RC no. 441/21/06 through Ct. Jaswant. He proved copy of said RC as Ex. PW3/C. State V/s Raju @ Ganja etc. ("Acquitted") Page 8 of 22 FIR No. 940/06; U/s 307/186/353/201/34 IPC; P.S. Nangloi D.O.D.: 03.11.2014 This witness has not been cross examined by accused persons despite grant of opportunity.
PW4 Ct. Jaswant Singh: This witness had deposited exhibits of the case in FSL Rohini vide RC No. 441/21/06 on 25.09.06 and handed over receipt issued by FSL Authority, to MHC(M).
During cross examination, he deposed that he had taken three sealed pullandas which were sealed with the seal of JP, to FSL Rohini on that day.
PW5 WHC Sudesh: This witness was working as D.D Writer in PP Nihal Vihar in PS Nangloi on 11.09.06. She deposed that she had made departure entry of police officials namely SI Jai Parkash alongwith HC Subhash, HC Amar Pal, HC Devender, Ct. Ranbir and Ct. Sukhbir at about 9.00 A.M on that day vide DD no. 6 and proved copy thereof as Ex PW5/A. This witness has not been cross examined by accused persons despite grant of opportunity.
PW9 HC Ajay Kumar: This witness was working as Duty Officer in PS Nangloi on 11.09.06. He has proved factum regarding registration of FIR in question by him at about 5.15 P.M on that day. He proved copy of FIR in question as Ex PW9/A and his endorsement on the rukka as Ex. PW9/B. He deposed that investigation was entrusted to ASI Naresh as per order of the SHO.
During cross examination, he testified that Ct. Ranbir had left PS Nangloi alongwith copy of FIR and rukka at about 6.00 P.M and concerned State V/s Raju @ Ganja etc. ("Acquitted") Page 9 of 22 FIR No. 940/06; U/s 307/186/353/201/34 IPC; P.S. Nangloi D.O.D.: 03.11.2014 SHO was present in the PS at that time.
PW11 ASI Dalbir Singh: This witness had formally arrested accused Jitender @ Golu on 07.02.11 after receipt of intimation from PS Sultan Puri vide DD no. 27A regarding apprehension of said accused by police official of PS Sultan Puri.
He deposed that he had prepared supplementary charge sheet in respect of accused Jitender @ Golu and filed the same before the Court.
He further deposed that he had also prepared kalandara U/s 41.1(c) Cr.PC and filed the same before the Court of law.
Nothing material came on record during cross examination of this witness.
PW12 SI Naresh Kumar( the then ASI): He is the IO in this case. He deposed on the lines of prosecution story during chief examination. He proved site plan as Ex PW12/A, the disclosure statement made by accused persons namely Deepak, Raju, Arjun and Javed as Ex PW9/A and Ex PW12/B to Ex PW12/D respectively.
He deposed about the relevant proceedings carried out by him at the spot including effecting arrest of the aforesaid four accused persons and conducting their personal search vide memos Ex PW10/A1 to Ex PW10/A4.
He further deposed that on 17.09.06, he alongwith Ct. Ranbir Singh and Ct. Sukhbir, had arrested accused Ravinder Kumar @ Sadhu on the basis of secret information, vide memo Ex. PW12/E. He had conducted his personal search vide memo Ex. PW12/F and also recorded his disclosure State V/s Raju @ Ganja etc. ("Acquitted") Page 10 of 22 FIR No. 940/06; U/s 307/186/353/201/34 IPC; P.S. Nangloi D.O.D.: 03.11.2014 statement vide memo Ex PW12/G. He further deposed that accused Ravinder @ Sadhu was correctly identified by witness namely SI Jai Parkash during his judicial TIP conducted on 27.09.06.
He further deposed that relevant three sealed pullandas were sent to FSL Rohini through Ct. Jaswant on 25.09.06. He obtained complaint U/s 195 Cr.PC from Sh. A.K Lall the then ACP Punjabi Bagh and also arrested accused Jitender @ Golu on 16.11.06, vide memo Ex. PW12/K. He further deposed that he had obtained FSL result dt. 23.4.07 which was misplaced by him on which he applied and obtained attested copy thereof, on 07.03.14. He placed on record attested copy of said FSL result with the permission of the Court and same was exhibited as Ex. PX during his testimony.
This witness has been cross examined at length on behalf of accused persons.
Formal Witnesses: PW7 Sh Rakesh Kumar ACJ(West): This witness had conducted judicial TIP of accused Ravinder @ Sadhu on 27.09.06. He proved TIP proceedings of said accused as Ex PW7/A. He deposed that accused Ravinder @ Sadhu was correctly identified by witness SI Jai Parkash.
This witness has not been cross examined by accused persons despite grant of opportunity.
PW13 Sh. A.K Lall: This witness has proved complaint U/s 195 State V/s Raju @ Ganja etc. ("Acquitted") Page 11 of 22 FIR No. 940/06; U/s 307/186/353/201/34 IPC; P.S. Nangloi D.O.D.: 03.11.2014 Cr.PC given by him as ACP Punjabi Bagh, for prosecuting accused persons in respect of offence U/s 186 IPC on 09.11.06. He proved the said complaint as Ex PW12/J. During cross examination, he admitted that he did not call public servants who were allegedly obstructed during the course of their official duties and also did not record their statements before preparing complaint U/s 195 Cr.PC. He also admitted that he did not annex any list of witnesses alongwith complaint Ex PW12/J. It may also be mentioned here that during the course of trial, Ld Additional PP dropped PW namely HC Subhash from the list of witnesses vide order dt. 23.1.14 as the testimony of said witness was of repetitive nature as PW1 Ct. Sukhbir, PW2 Ct. R.B Guliya, PW6 Inspector Jai Parkash and PW10 ASI Devender had already been examined by the prosecution for the same purpose. Ld Additional PP also dropped PW namely SI Dhirender from the list of witnesses vide order dt. 27.8.14 as the testimony of said witness was of repetitive nature as PW11 ASI Dalbir Singh had already been examined by prosecution for the same purpose.
ARGUMENTS ADVANCED AND CASE LAW CITED It has been argued by Ld Additional PP for the State that all the police witnesses who were members of raiding party and had apprehended the accused on 11.09.06, have deposed on the lines of prosecution story and have corroborated each other. He further contended that defence counsel could not impeach testimonies of said witnesses during cross examination and therefore, State V/s Raju @ Ganja etc. ("Acquitted") Page 12 of 22 FIR No. 940/06; U/s 307/186/353/201/34 IPC; P.S. Nangloi D.O.D.: 03.11.2014 prosecution has been able to establish the charges levelled against accused persons beyond reasonable doubt. He further pointed out that accused persons namely Raju @ Ganja, Arjun and Deepak were found in possession of one country made pistol alongwith one live cartridge each whereas accused Javed was found in possession of buttondar knife without any license and therefore, all the said four accused are also liable to be convicted in respect of offence U/s 25 Arms Act. Ld Additional PP also referred to the relevant portions of the testimonies of police witnesses namely PW1 Ct. Sukhbir, PW2 Ct. R.B Guliya, PW6 Inspector Jai Parkash, PW8 ASI Amar Pal and PW10 ASI Devender Singh, in order to buttress the aforesaid submissions made by him before the Court. Ld Additional PP urged that there is a complaint U/s 195 Cr.PC proved by prosecution during testimony of PW13 as Ex PW12/J and therefore, the prosecution has also been able to prove the offence U/s 186 IPC in this case.
Per contra, Ld defence counsel vehemently argued that prosecution has miserably failed to prove its case against any of the accused beyond reasonable doubt. In support of said submission, Ld defence counsel submitted that PW1 Ct. Sukhbir has failed to support the case of prosecution due to which reason he was also cross examined at length by Ld Additional PP for the State. She submitted that said witness pointed towards accused Javed by claiming him as accused Deepak.
Ld counsel of accused persons also pointed out certain contradictions appearing on record during testimonies of police witnesses and urged that said contradictions are material contradictions which create State V/s Raju @ Ganja etc. ("Acquitted") Page 13 of 22 FIR No. 940/06; U/s 307/186/353/201/34 IPC; P.S. Nangloi D.O.D.: 03.11.2014 reasonable doubt in the case of prosecution due to which benefit of doubt should be given to the accused persons. She further argued that no independent public witness has been joined either in the raiding party or at the time of recovery proceedings carried out at the spot.
At the outset, it may be mentioned here that although accused persons were sent to face trial in respect of offences U/s 186/353/307/201/34 IPC and Section 25/27 Arms Act as per the charge sheet available on record but Ld predecessor had been pleased to frame charge in respect of offence U/s 307/34 IPC against all the six accused herein whereas separate charges in respect of offence U/s 25 Arms Act had been framed against accused Raju @ Ganja, Arjun, Javed @ Ganju and Deepak @ Deepu vide order dt. 20.02.08. It goes without saying that prosecution did not challenge the relevant order directing framing of charges against the accused persons till date. In other words, charge in respect of offenece U/s 186 IPC has not been framed at all, against any of the accused persons in this case. That being so, the testimony of PW13 namely Sh. A.K Lall the then ACP Punjabi Bagh and for the said matter, complaint U/s 195 Cr.PC Ex PW12/J are totally irrelevant.
It is well settled law that burden of proving its case entirely lies upon prosecution and such burden has to be discharged beyond shadow of doubt. Now, it has to be seen as to whether prosecution has been able to establish the offences charged against the accused, during the course of trial or not.
It is important to note that the relevant police witnesses who are alleged to have apprehended the accused persons on 11.09.06, have claimed State V/s Raju @ Ganja etc. ("Acquitted") Page 14 of 22 FIR No. 940/06; U/s 307/186/353/201/34 IPC; P.S. Nangloi D.O.D.: 03.11.2014 during their respective testimonies that PW6 Inspector Jai Parkash ( the then SI) had requested 56 public persons to join the raiding party but all refused and expressed their inability due to which no public witness could be joined in the raiding party. However, same is nothing but a mechanical excuse given by the police witnesses and showed that they had not made any sincere efforts to join any independent public witness either during the raiding party or subsequent thereto. Same is quite apparent from the relevant portion of cross examination of PW6 wherein he admitted that he did not note down names and addresses of those public persons who were requested by him to join the raiding party and he also did not serve any written notice upon them and also did not issue any warning to any of them that their refusal to join the raiding party may tantamount to disobeying the instructions issued by public servant and may entail prosecution under the law. Not only this, he also admitted that he did not take any legal action against any of those public persons for their refusal to join the raiding party.
Moreover, it has come on record during the testimonies of said police witnesses that there was cremation ground situated just near the spot but no effort is shown to have been made for requesting any public person who may be present in the said cremation ground, to join the proceedings at the spot. Some of them have also testified that there was one public park near the spot but no effort was made to enquire about the availability of any public person either in the said park or in the cremation ground.
In this back drop, Court finds merit in the argument of Ld defence counsel that prosecution case cannot be said to be free from doubt. At this State V/s Raju @ Ganja etc. ("Acquitted") Page 15 of 22 FIR No. 940/06; U/s 307/186/353/201/34 IPC; P.S. Nangloi D.O.D.: 03.11.2014 juncture, it would be pertinent to refer to some case laws.
In a case law reported as Anoop Joshi v/s State reported at 1992 (2) C.C. Cases 314(HC), Hon'ble High Court of Delhi has observed as under:
"18. It is repeatedly laid down by this court that in such cases it should be shown by the police that sincere efforts have been made to join independent witnesses. In the present case, it is evident that no such sincere efforts have been made, particularly when we find that shops were open and one or two shopkeepers could have been persuaded to joint he raiding party to witness the recovery being made from the appellant. In case any of the shopkeepers had declined to join the raiding party, the police could have later on taken legal action against such shopkeepers because they could not have escaped the rigours of law while declining to perform their legal duty to assist the police in investigation as a citizen, which is an offence under the IPC."
In the matter titled as Roop Chand v/s The State of Haryana reported at 1999(1) C.L.R 69, Hon'ble Punjab & Haryana High Court held as under:
3. I have heard the learned counsel for the parties and gone through the evidence with their help. The recovery of illicit liquor was effected from the possession of the petitioner during noon time and it is in the evidence of the petitioner witnesses that some witnesses from the public were available and they were asked to join the investigation. The explanation furnished by the prosecution is that the independent witnesses were asked to join the investigation but they refused to do so on the ground that their joining will result into enmity between them and the petitioner.
4. It is well settled principle of the law that the Investigating Agency should join independent witnesses at the time of recovery of contraband articles, if they are available and their failure to do so in such a situation casts a shadow of doubt on the prosecution case. In the present case also State V/s Raju @ Ganja etc. ("Acquitted") Page 16 of 22 FIR No. 940/06; U/s 307/186/353/201/34 IPC; P.S. Nangloi D.O.D.: 03.11.2014 admittedly the independent witnesses were available at the time of recovery but they refused to associate themselves in the investigation. This explanation does not inspire confidence because the police officials who are the only witnesses examined in the case have not given the name and addresses of the persons contacted to join. It is a very common excuse that the witnesses from the public refused to join the investigation. A police officer conducting investigation of a crime is entitled to ask anybody to join the investigation and on refusal by a person from the public the investigating Officer can take action against such a person under the law. Had it been a fact that the witnesses from the public had refused to join the investigation, the Investigating Officer must have proceeded against them under the relevant provisions of law. The failure to do so by the police officer is suggestive of the fact that the explanation for nonjoining the witnesses from the public is an after thought and is not worthy of credence. All these facts taken together make the prosecution case highly doubtful."
In another matter titled as Sadhu Singh V/s State of Punjab reported at 1997(3) Crimes 55, Hon'ble Punjab & Haryana High Court observed as under: "5. In a criminal trial, it is for the prosecution to establish its case beyond all reasonable doubts. It is for the prosecution to travel the entire distance from may have to must have. If the prosecution appears to be improbable or lacks credibility the benefit of doubt necessarily has to go to the accused.
6. In the present case, the State examined two witnesses namely, Harbans Singh ASI who appeared as PW1 and Kartar Singh PW2. Both the witnesses supported the prosecution version in terms of the recovery of opium from the person of the petitioner, but there was no public witness who had joined. It is not necessary in such recoveries that public witnesses must be joined, but attempt must be made to join the public witnesses. There can be cases when public witnesses are reluctant to join or are not available. All the same, the prosecution must show a genuine attempt having been made to join State V/s Raju @ Ganja etc. ("Acquitted") Page 17 of 22 FIR No. 940/06; U/s 307/186/353/201/34 IPC; P.S. Nangloi D.O.D.: 03.11.2014 a public witness or that they were not available. A stereotype statement of nonavailability will not be sufficient particularly when at the relevant time, it was not difficult to procure the service of public witness. This reflects adversely on the prosecution version".
As such it could be said that IO did not make sincere efforts to join public witnesses before starting initial investigation of the present case and this failure on the part of the IO in view of above said case laws creates a very serious doubt in the prosecution version.
The case property and accused remained in control of police officials till the case property was deposited in the malkhana. Hence tampering with the case property cannot be ruled out as the seal remained all along with the police officials. This fact has also been admitted by PW8 ASI Amar Pal that no handing over memo of seal was prepared at the spot.
In addition thereto what has been stated above, there are material contradictions appearing in the testimonies of prosecution witnesses which also create reasonable doubt in the case of prosecution. Some of those material contradictions may be summarized as under: Firstly, the prosecution story provides that one country made pistol and one live cartridge each were recovered from the possession of accused Raju @ Ganja, Arjun and Deepak @ Deepu on 11.09.06 but PW2 Ct. Ranbir testified during chief examination itself that one buttondar knife each was recovered from the possession of accused Javed and Deepak;
Secondly, PW2 Ct. Ranbir deposed during cross examination that the number plates of both the motorcycles seized at the spot, were in broken condition which is again contrary to the case of prosecution besides being State V/s Raju @ Ganja etc. ("Acquitted") Page 18 of 22 FIR No. 940/06; U/s 307/186/353/201/34 IPC; P.S. Nangloi D.O.D.: 03.11.2014 contrary to the relevant portion of testimony of PW6 Inspector Jai Parkash wherein he deposed that the motorcycles was not having any registration number on its registration plate whereas other motorcycle of red colour make Pulsar was having registration number plate of DL4SBH1590;
Thirdly, PW6 Inspector Jai Parkash claimed that there were three barricades of yellow colour but nothing was written on them. As contrary thereto, PW8 ASI Amar Pal deposed during cross examination that there were two barricades of yellow colour on which " Delhi Police" was written.
Fourthly, it is neither the case of prosecution nor it has been testified by any of the police witnesses who were members of raiding party that any mobile phone was recovered from the possession of any of the accused persons after their apprehension on 11.09.06 but PW3 ASI Tarif Singh who was working as MHC(M) in PS Nangloi, deposed that ASI Naresh Kumar(IO) had handed over to him four mobile phones besides other case property concerning this case, on 11.09.2006;
Fifthly, PW8 ASI Amar Pal deposed during cross examination conducted on 12.2.14 that Ct. Ranbir had left the spot for registration of FIR, on government motorcycle. Said part of his testimony has been contradicted by PW10 ASI Devender Singh who deposed that Ct. Ranbir had gone to PS for registration of FIR by taking lift on one motorcycle driven by public person who was passing through the spot;
Sixthly, prosecution case is that secret information was received by PW6 Inspector Jai Parkash whereas PW1 Ct. Sukhbir deposed that secret State V/s Raju @ Ganja etc. ("Acquitted") Page 19 of 22 FIR No. 940/06; U/s 307/186/353/201/34 IPC; P.S. Nangloi D.O.D.: 03.11.2014 information was received by ASI Naresh Kumar on 17.09.06.
Seventhly, PW8 ASI Amar Pal deposed that SI Jai Parkash had left the spot at 6.35 P.M on 11.09.06 whereas PW6 Inspector Jai Parkash deposed that he alone had left the spot at about 7.00 P.M. FIR in question is shown to have been registered somewhere around 5.30 P.M and ASI Naresh Kumar(PW12) alongwith Ct. Ranbir had reached the spot at 6.30 P.M. The prosecution story states that PW6 SI Jai Parkash had handed over custody of accused persons, pullandas, seizure memos etc to ASI Naresh Kumar who had also prepared rough site plan at the instance of PW6. The said proceedings would have taken atleast half a hour or may be more than that. That being so, the testimony of said two witnesses on the aforesaid aspect, does not appeal to the reasoning and therefore, cannot be said to be free from doubt.
Moreover, none of the police officials offered their own search prior to taking search of the accused persons who are claimed to have been apprehended at the spot on 11.09.06. This fact has been admitted PW8 ASI Amar Pal. Furthermore, PW1 did not support the case of prosecution during chief examination due to which he had been cross examined at length by Ld Additional PP. He wrongly identified accused Javed as accused Deepak during trial. PW1 claimed that although, writing work was done in his presence but he did not sign any document whereas memo Ex PW1/A would show that same bears signature of said witness at point A. Not only this, there is no recovery of any empty cartridge or even lead piece of cartridge which was allegedly fired by two of the accused State V/s Raju @ Ganja etc. ("Acquitted") Page 20 of 22 FIR No. 940/06; U/s 307/186/353/201/34 IPC; P.S. Nangloi D.O.D.: 03.11.2014 persons at the police party from the spot. Although, PW6 Inspector Jai Parkash tried to explain that he had made efforts to trace the lead of cartridges but same could not be traced out as leads of cartridges used in desi katta are of small size but this fact is neither mentioned by him in rukka Ex.PW9/B or even in the charge sheet. The said fact coupled with the fact that none of the members of police party is shown to have sustained/received any kind of injury during the course of incident, further casts reasonable doubt in the prosecution story as mentioned in the charge sheet.
Although, accused Raju @ Ganja, Arjun and Deepak are alleged to have been found in conscious possession of arms and ammunitions but it is important to note that requisite sanction U/s 39 Arms Act to prosecute said three accused for offence U/s 25 Arms Act, were neither obtained during the course of investigation nor placed on record till date. This fact has also been admitted by PW12 SI Naresh Kumar( the then ASI) during his cross examination conducted on 17.09.14. The said witness has categorically admitted that sanction U/s 39 Arms Act has not been placed on record till date.
In the light of aforesaid discussion, Court is of the view that prosecution has miserably failed to establish that the accused persons in furtherance of their common intention, had fired at the police party headed by SI Jai Parkash on the alleged date, time and place or that accused Raju @ Ganja, Arjun, Javed @ Ganju and Deepak @ Deepu were found in possession of arms and ammunitions in contravention of Section 3 of Arms Act. Consequently, all the six accused persons namely Ravinder Kumar @ Sadhu State V/s Raju @ Ganja etc. ("Acquitted") Page 21 of 22 FIR No. 940/06; U/s 307/186/353/201/34 IPC; P.S. Nangloi D.O.D.: 03.11.2014 Balmiki, Jitender @ Golu, Raju @ Ganja, Arjun, Javed @ Ganju and Deepak @ Deepu are hereby acquitted of the charges levelled against them by giving them benefit of doubt in this case. File be consigned to Record Room after compliance of Section 437A Cr.PC.
Announced in open Court today
dt. 03.11.2014 (Vidya Prakash)
Additional Sessions Judge04 (North)
Rohini Courts, Delhi
State V/s Raju @ Ganja etc. ("Acquitted") Page 22 of 22
FIR No. 940/06; U/s 307/186/353/201/34 IPC; P.S. Nangloi D.O.D.: 03.11.2014
State V/s Raju @ Ganja etc. ("Acquitted") Page 23 of 22