Delhi District Court
State vs . (1). Parveen @ Baba on 14 October, 2014
FIR No. 367/08; U/s 399/402/34 IPC & Sec. 25 Arms Act; P.S. Narela. DOD: 14.10.2014 IN THE COURT OF SHRI VIDYA PRAKASH: ADDL. SESSIONS JUDGE04 (NORTH): ROHINI COURTS: DELHI Session Case No. 123/1/14 Unique Case ID No. 02404R0204612009 State Vs. (1). Parveen @ Baba S/o Sh. Dilbagh Singh R/o Village Morkheri, P.S. Sampla, District Sonepat, Haryana (2). Pawan Kumar S/o Sh. Raghuvir Singh R/o Village Morkheri, P.S. Sampla, District Sonepat, Haryana (3). Krishan Kumar S/o Late Sh. Padam Singh R/o Thana Kalan, P.S. Kharkhoda, Distt. Sonepat, Haryana (4). Paramjeet @ Pamma S/o Sh. Satbir Singh R/o A164, Gali No. 9, Vijay Nagar, Bawana, Delhi (5). Amit Dahiya S/o Sh. Vijay Dahiya R/o Gali No. 8, Gautam Colony, Narela, Delhi (Proceedings against accused Amit abated vide order dated 10.10.2013) (6). Vikas @ Baba S/o Sh. Vijay Kumar R/o Village Holambi Kalan, Delhi State V/s Parveen @ Baba etc. ("Acquitted") Page 1 of 23 FIR No. 367/08; U/s 399/402/34 IPC & Sec. 25 Arms Act; P.S. Narela. DOD: 14.10.2014 (7). Jai Bhagwan @ Sonu S/o Sh. Satbir Singh R/o Village Pinana, P.S. Rai, District Sonepat, Haryana. FIR No. : 367/08 Police Station : Narela Under Sections : 399/402/34 IPC & Sec. 25/54/59 Arms Act Date of committal to Sessions Court : 14.07.2009 Date on which judgment was reserved: 14.10.2014 Date on which Judgment pronounced : 14.10.2014 JUDGMENT
The facts and circumstances giving rise to the present case are that on 18.08.2008, SI Karan Singh (PW8) alongwith HC Shamsher (PW5), HC Ved Prakash (PW7), Ct. Vinod (PW6), Ct. Satbir (PW1), Ct. Ram Avtar and Ct. Dinkar Kutti were on patrolling duty in the area of PS Narela near SRHC Hospital. At about 9 pm when said police officials were present at 80 Foota Road, Near SRHC Hospital, one secret informer met SI Karan Singh and informed that some young persons who were planning to commit dacoity in a petrol pump, were sitting in a vacant plot behind the petrol pump near Mansa Devi Road and SRHC Road and if raided, they can be apprehended. On receiving the said secret information, SI Karan Singh prepared a raiding party consisting of aforesaid police officials and briefed the members of the raiding party about the information received by him. SI Karan Singh also requested several public persons to join the raiding State V/s Parveen @ Baba etc. ("Acquitted") Page 2 of 23 FIR No. 367/08; U/s 399/402/34 IPC & Sec. 25 Arms Act; P.S. Narela. DOD: 14.10.2014 party but none agreed and they all left without disclosing their names and addresses.
It is mentioned in the chargesheet that SI Karan Singh alongwith other members of raiding party, went towards the vacant plot behind petrol pump alongwith the secret informer. There, SI Karan Singh instructed HC Ved Prakash (PW7) and secret informer to go near those persons who were sitting in the vacant plot and directed them to overhear their conversation. At about 9.40 pm, HC Ved Prakash and secret informer went near the vacant plot behind the petrol pump while SI Karan Singh alongwith remaining members of the raiding party, were standing on the road. After about 10 minutes, HC Ved Prakash alongwith secret informer came back to them. HC Ved Prakash informed SI Karan Singh that he had heard that there were three motorcycles on which one person each was sitting and four persons were sitting on the ground. HC Ved Prakash further told SI Karan Singh that one of the persons was instructing remaining persons to commit dacoity at petrol pump and to snatch the cash bag from cashier. That person further told them that it is the time of closing of petrol pump and huge amount would have been collected by way of collection from various customers during the course of day and if cashier would object, Pawan would not hesitate in firing the gun shots.
Accordingly, SI Karan Singh instructed HC Ved Prakash and Ct. Dinkar Kutti to guard towards Raja Harish Chander Road. HC Shamsher and Ct. Vinod were instructed to guard at the back side of the petrol pump. Remaining members of the raiding party were with SI Karan State V/s Parveen @ Baba etc. ("Acquitted") Page 3 of 23 FIR No. 367/08; U/s 399/402/34 IPC & Sec. 25 Arms Act; P.S. Narela. DOD: 14.10.2014 Singh and thereafter, they entered inside the vacant plot. SI Karan Singh challenged accused Praveen @ Baba and his accomplices who were sitting inside the vacant plot. On hearing the challenge of SI Karan Singh, accused Praveen @ Baba and his accomplices stood up and tried to run away from the spot in different directions. SI Karan Singh with the help of Ct. Satbir apprehended accused namely Krishan. From the formal search of accused Krishan, one country made pistol of .315 bore was recovered from the pocket of his pant and on checking the said country made pistol, one live cartridge was found in it. Another live cartridge was also recovered from the pocket of shirt of accused Krishan.
Ct. Satbir and Ct. Ram Avtar had apprehended accused Pawan and from his formal search, one country made pistol of .32 bore was recovered. On checking of said country made pistol, one live cartridge was found in it and another live cartridge was also recovered from the pocket of shirt of accused Pawan.
HC Ved Prakash and Ct. Dinkar Kutti apprehended accused Paramjeet @ Pamma and from his possession, one baseball bat was recovered. HC Shamsher and Ct. Vinod had apprehended accused Parveen @ Baba, while three of his accomplices managed to escape from the spot due to darkness.
It is alleged that the country made pistol alongwith two live cartridges which were recovered from the possession of accused Krishan, were handed over to SI Karan Singh who prepared sketch (Ex.PW5/A) of the same. The country made pistol and cartridges were measured and were State V/s Parveen @ Baba etc. ("Acquitted") Page 4 of 23 FIR No. 367/08; U/s 399/402/34 IPC & Sec. 25 Arms Act; P.S. Narela. DOD: 14.10.2014 kept in a white colour cloth and were sealed with the seal of KS. Form FSL was also filled up and was sealed with the seal of KS. The said pullanda containing country made pistol and cartridges, was taken into possession vide seizure memo (Ex.PW5/B).
The baseball bat which was recovered from the possession of accused Paramjeet @ Pamma, was kept in a white colour cloth and was converted into a pullanda and same was sealed with the seal of KS and was taken into possession vide seizure memo (Ex.PW7/A).
The motorcycles were also seized vide seizure memo (Ex.PW5/B). Thereafter, SI Karan Singh prepared rukka (Ex.PW8/A) and handed over to Ct. Vinod Kumar for registration of FIR. Accordingly, Ct. Vinod Kumar went to PS, got the FIR (Ex.PW4/A) registered through HC Ashok Kumar (PW4) who was working as Duty Officer at that time and came back to the spot alongwith SI Suresh Chand (PW9), who was entrusted with further investigation. On the spot, SI Suresh Chand met SI Karan Singh alongwith other staff members of PS Narela. SI Karan Singh produced three sealed pullandas bearing case particulars sealed with the seal of KS alongwith FSL Form before SI Suresh Chand.
SI Karan Singh also produced accused persons before SI Suresh Chand. He also handed over three motorcycles alongwith seizure memos and sketches of weapons to SI Suresh Chand.
At the instance of SI Karan Singh, SI Suresh Chand inspected the spot and prepared the site plan (Ex.PW9/A). Accused persons were interrogated and were arrested and their personal search were conducted. State V/s Parveen @ Baba etc. ("Acquitted") Page 5 of 23 FIR No. 367/08; U/s 399/402/34 IPC & Sec. 25 Arms Act; P.S. Narela. DOD: 14.10.2014 SI Suresh Chand put the FIR numbers on the seizure memos, sketches and pullandas of case property. He also deposited all the case property with (MHCM).
On 01.09.2008, SI Suresh Chand alongwith Ct. Dinkar Kutti left the police station concerning investigation of the present case and when they reached Safiabad More, there secret informer met them and informed him that the person namely Amit Dahiya who was wanted in this case, was standing at Safiabad More. Accordingly, accused Amit Dahiya (since expired) was apprehended, interrogated and was arrested in this case and his personal search was conducted.
On 01.09.2008, SI Suresh Chand alongwith Ct. Satbir also went to Bhorgarh Bus Stand from where accused namely Vikas @ Baba was arrested and his personal search was also conducted.
On 10.09.2008, exhibits were sent to FSL, Rohini through Ct. Sushil (PW10) in a sealed condition. Accused Jai Bhagwan was arrested in this case on 10.11.2008 by SI Suraj Bhan. SI Suresh Chand collected the FSL result (Ex.PW9/H) from FSL. He also obtained the sanctions (Ex.PW9/J & Ex.PW9/K) U/s 39 Arms Act against accused Krishan Kumar and Pawan Kumar.
After completion of investigation, chargesheet was filed before the Court of Ld. M.M. 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.
State V/s Parveen @ Baba etc. ("Acquitted") Page 6 of 23 FIR No. 367/08; U/s 399/402/34 IPC & Sec. 25 Arms Act; P.S. Narela. DOD: 14.10.2014 After hearing arguments on the point of charge, Ld. Predecessor of this Court was pleased to frame the charges u/s 399/402/34 IPC against accused persons namely Parveen @ Baba, Pawan Kumar, Krishan Kumar, Paramjeet @ Pamma, Vikas @ Baba and Jai Bhagwan @ Sonu and charge in respect of Sec. 25 Arms Act was framed against accused Krishan Kumar vide order dated 23.09.2009 to which said accused persons pleaded not guilty and claimed trial.
In support of its case, prosecution examined eleven witnesses namely PW1 Ct. Satbir Singh, PW2 HC Virender, PW3 Sh. Vijay Dahiya, PW4 HC Ashok Singh, PW5 HC Shamsher Singh, PW6 Ct. Vinod Kumar, PW7 ASI Ved Prakash, PW8 SI Karan Singh, PW9 SI Suresh Chand, PW10 Ct. Sushil Kumar and PW11 HC Desh Raj during trial.
Thereafter, statements U/s 313 Cr.P.C. of all the four accused persons were recorded during which all the incriminating evidence which came on record, were put to them which they denied. All the accused persons claimed that they are innocent and have been falsely implicated in this case. However, all the accused persons except accused Vikas @ Baba opted not to lead any evidence towards their defence.
Accused Vikas @ Baba examined one witness i.e. DW1 Ms. Indrawati towards his defence and closed his evidence.
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: State V/s Parveen @ Baba etc. ("Acquitted") Page 7 of 23 FIR No. 367/08; U/s 399/402/34 IPC & Sec. 25 Arms Act; P.S. Narela. DOD: 14.10.2014 POLICE WITNESSES PW1 Ct. Satbir Singh, PW5 HC Shamsher, PW6 Ct.
Vinod Kumar, PW7 ASI Ved Parkash and PW8 SI Karan Singh:
These five witnesses were part of raiding party who were on patrolling duty on 18.08.2008 at about 9 pm when secret information was received by PW8 SI Karan Singh that several persons were planning to commit dacoity in a petrol pump and were sitting in a vacant plot behind petrol pump near Mansa Devi Road and SRHC Road.
All the aforesaid prosecution witnesses deposed on the lines of prosecution story during chief examination by claiming that SI Karan Singh asked HC Ved Parkash and secret informer to go near the vacant plot and to hear the conversation of the persons sitting inside the said plot. They deposed that after 10 minutes, PW HC Ved Parkash alongwith secret informer came back to SI Karan Singh and informed that there were three motorcycles on which one person each was sitting and four persons were sitting on the ground and one out of them had been instructing remaining persons to commit dacoity at petrol pump by snatching the bag containing cash from cashier as it was the time for closing the petrol pump and huge amount would have been collected by way of collection from various customers during the course of that day.
They further deposed that SI Karan Singh instructed members of raiding party to take their respective positions and he challenged the seven State V/s Parveen @ Baba etc. ("Acquitted") Page 8 of 23 FIR No. 367/08; U/s 399/402/34 IPC & Sec. 25 Arms Act; P.S. Narela. DOD: 14.10.2014 persons found sitting inside vacant plot and ultimately, they all apprehended four accused persons namely Parveen @ Baba, Pawan Kumar, Krishan Kumar and Paramjit @ Pamma whereas other three persons managed to flee away from there.
They further deposed about the necessary proceedings carried out at the spot. They deposed that one country made pistol and two live cartridges were recovered from the possession of accused Pawan Kumar. Likewise, one country made pistol and two live cartridges were recovered from the possession of accused Krishan Kumar and one base ball bat was recovered from accused Paramjit @ Pamma. They also referred to the relevant sketches of the aforesaid arms and ammunitions as also to their seizure memos claimed to have been prepared at the spot. Further investigation was entrusted to SI Suresh Chand (PW9) who prepared the site plan of the spot and arrested all the said accused persons.
All the aforesaid witnesses have been cross examined at length on behalf of accused persons.
PW2 HC Virender: This witness was working as MHC(M) in PS Narela during the relevant period. He deposed about the deposit of exhibits of this case by SI Suresh Chand in Malkhana vide entry at serial no. 378 of register no. 19 and proved copy thereof as Ex PW2/A. He further deposed that two sealed pullandas were sent to FSL, Rohini on 10.09.08 through Ct. Sushil(PW10) vide RC no. 255/21/08 and proved copy of said RC as Ex PW2/B and copy of acknowledgment issued by FSL as Ex PW2/C. State V/s Parveen @ Baba etc. ("Acquitted") Page 9 of 23 FIR No. 367/08; U/s 399/402/34 IPC & Sec. 25 Arms Act; P.S. Narela. DOD: 14.10.2014 He also deposed that FSL result alongwith aforesaid pullandas were received from FSL on 11.11.08 through Ct. Mohd Yamin.
During cross examination on behalf of accused Krishan Kumar, he could not disclose the time when SI Suresh had deposited the pullandas in the Malkhana on 19.08.08. However, he clarified that FSL forms were also deposited alongwith pullandas at that time.
PW3 Sh. Vijay Dahiya: This witness had obtained motorcycle no. DL8SNC 0980 on superdari vide superdarinama Ex PW3/A. He could not produce the said motorcycle during trial by claiming that it had been stolen vide FIR no. 556/10 U/s 379 IPC and exhibited copy of said FIR as Ex PW3/B. This witness has not been cross examined on behalf of accused persons.
PW4 HC Ashok Singh: He is the Duty Officer. He has proved factum regarding registration of FIR No. 367/08. He proved copy of FIR No. 367/08 as Ex.PW4/A. This witness has not been cross examined on behalf of accused persons.
PW9 SI Suresh Chand: He is the IO of this case. He also deposed on the lines of prosecution story during chief examination. He deposed about the relevant proceedings carried out by him at the spot. He proved relevant arrest memos and personal search memos claimed to have been prepared at the spot. He also deposed that he had prepared site plan State V/s Parveen @ Baba etc. ("Acquitted") Page 10 of 23 FIR No. 367/08; U/s 399/402/34 IPC & Sec. 25 Arms Act; P.S. Narela. DOD: 14.10.2014 Ex PW9/A at the instance of SI Karan Singh(PW8).
He further deposed that on 01.09.08, he alongwith Ct. Dinkar Kutty joined investigation of this case and arrested accused Amit Dahiya(since expired) from Safiabad More vide memo Ex PW9/D and conducted his personal search vide memo Ex PW9/E. On the same day, they also effected arrest of accused Vikas @ Baba vide vide memo Ex PW9/F and conducted his personal search vide memo Ex PW9/G. He further deposed that on 10.09.08, exhibits were sent to FSL, Rohini through Ct. Sushil (PW10) and he had obtained process U/s 82 Cr.PC against accused Jai Bhagwan who had been absconding at that time and was arrested subsequently on 10.11.08 by SI Suraj Bhan.
He further deposed that he also collected FSL result Ex.PW9/H and had also obtained sanctions U/s 39 Arms Act Ex PW9/J and Ex PW9/K for prosecuting accused Krishan Kumar and Pawan Kumar for offence U/s 25 Arms Act.
It may be mentioned here that during the course of trial, Ld. Additional PP dropped PWs namely Ct. Ram Avtar and Ct. Dinkar Kutty from the list of witnesses on 20.08.14 as they were witnesses of repetitive facts in respect of which prosecution had already examined other witnesses namely PW1 and PW5 to PW8 during trial. He also dropped PWs i.e Retd. SI Suraj Bhan and Ct. Satyaveer Singh from the list of witnesses on 20.08.14 as they were formal witnesses.
DW1 Ms. Indrawati: This witness is the mother of accused Vikas @ Baba. She deposed during her examination that on 27.08.08 at State V/s Parveen @ Baba etc. ("Acquitted") Page 11 of 23 FIR No. 367/08; U/s 399/402/34 IPC & Sec. 25 Arms Act; P.S. Narela. DOD: 14.10.2014 about 6.00 A.M, accused Vikas @ Baba was taken to some Police Station by four police officials who had visited her house in civil uniform, on the pretext of making some enquiry from him and subsequently, her son i.e accused Vikas was got falsely implicated in the present case. She had sent written complaint dt. 30.08.08 to Commissioner of Police through fax after coming to know about the said fact. She exhibited copy of said written complaint as Ex DW1/A and sending report as Ex DW1/B. During cross examination, she could not disclose as to what action was taken by her husband after coming to know that accused Vikas @ Baba had been taken away from the house by the police officials of PS Narela. She admitted that no police official visited her house for making any enquiry in response to complaint Ex DW1/A. However, she denied the relevant suggestions put to her on the lines of prosecution story.
ARGUMENTS ADVANCED AND CASE LAW CITED While opening the arguments, Ld. Addl. PP submitted that all the police witnesses examined during trial, have fully supported the case of prosecution on all material points and accused could not impeach their testimonies during cross examination. Hence, the prosecution has been able to establish its case against them beyond reasonable doubt. He further submitted that there has been recovery of arms and ammunitions from the possession of accused persons namely Pawan Kumar and Krishan Kumar at the time of their apprehension and since the possession of those arms and ammunitions was in violation of relevant Notification issued by Delhi State V/s Parveen @ Baba etc. ("Acquitted") Page 12 of 23 FIR No. 367/08; U/s 399/402/34 IPC & Sec. 25 Arms Act; P.S. Narela. DOD: 14.10.2014 Administration and said two accused persons could not produce any license to possess country made pistol and live cartridges, offence U/s 25 Arms Act has also been proved against them beyond shadow of doubt.
Per contra, ld. defence counsels vehemently argued that prosecution has not been able to establish the charges against the accused persons in this case. They contended that there are contradictions appearing in the testimonies of witnesses examined during trial. They also assailed the case of prosecution by submitting that no independent witness had been joined during proceedings despite their availability at or near the spot. In this regard, they also referred to the relevant portions of the testimonies of PW1 and PW5 to PW9 wherein they have admitted that public persons were present near the spot not only at the time of apprehension of accused persons but also even prior thereto.
It is an admitted case of prosecution that there was petrol pump situated just near the spot. Not only this, there was SRHC Hospital also situated at some distance from the spot. This fact has been admitted by all the relevant police witnesses i.e. PW1 and PW5 to PW9 examined during trial. However, no effort whatsoever is even claimed to have been made by police officials to join any employee of said petrol pump or any public person who was present over the said petrol pump, either in the raiding party or during the entire proceedings claimed to have been carried out at the spot. It has been admitted by almost all the aforesaid police witnesses during their respective cross examination that none of them requested any employee of petrol pump to join the proceedings. This fact State V/s Parveen @ Baba etc. ("Acquitted") Page 13 of 23 FIR No. 367/08; U/s 399/402/34 IPC & Sec. 25 Arms Act; P.S. Narela. DOD: 14.10.2014 assumes importance in the backdrop of the fact that said petrol pump was lying opened as admitted by PW7 ASI Ved Prakash and PW8 SI Karan Singh.
Although, it has been claimed by all the police witnesses i.e. PW1 and PW5 to PW9 who were allegedly part of the raiding team, that PW8 SI Karan Singh (the then ASI) had requested 34 passers by to join the raiding party but none agreed and all of them had left the spot by showing their inability and without disclosing their names and addresses. However, the said claim is nothing but mechanical excuses given by police officials in order to cover up their own lapse besides trying to fill up lacunae in the case of prosecution. Same is manifestly clear from the fact that no written notice was served upon any of those public persons for joining the proceedings and no legal action is shown to have been taken against any of them for his/her refusal to join the investigation as claimed by these police witnesses. It is important to note that there was no possibility of accused persons having escaped from the clutches of police officials due to which effort could not have been made to join public witnesses or to serve them notices after apprehension of accused persons in this case.
In a case law reported as Anoop Joshi v/s State, 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 State V/s Parveen @ Baba etc. ("Acquitted") Page 14 of 23 FIR No. 367/08; U/s 399/402/34 IPC & Sec. 25 Arms Act; P.S. Narela. DOD: 14.10.2014 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 join the 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 a case law reported as Roop Chand v/s The State of Haryana, 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 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 State V/s Parveen @ Baba etc. ("Acquitted") Page 15 of 23 FIR No. 367/08; U/s 399/402/34 IPC & Sec. 25 Arms Act; P.S. Narela. DOD: 14.10.2014 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 case law reported as Sadhu Singh v/s State of Punjab, 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.
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 State V/s Parveen @ Baba etc. ("Acquitted") Page 16 of 23 FIR No. 367/08; U/s 399/402/34 IPC & Sec. 25 Arms Act; P.S. Narela. DOD: 14.10.2014 made to join 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.
Moreover, seal all along remained in possession of police witnesses and thus, possibility of tampering of the case property cannot be ruled out. None of the aforesaid police witnesses even claimed that seal after use was handed over by PW8 SI Karan Singh to any other person.
There are various contradictions appearing in the testimonies of police witnesses examined during trial.
Firstly, PW1 Ct. Satbir Singh claimed that there were six members in the raiding team consisting of himself, HC Ved Prakash, Ct. Ram Avtar, Ct. Vinod and ASI Karan Singh, which is contrary to the case of prosecution as also contrary to the depositions made by PW5 HC Shamsher who claimed that there were six members in the raiding team which is further contradicted by PW7 ASI Ved Prakash and PW8 SI Karan Singh who deposed that there were seven members in the raiding team.
Secondly, PW1 Ct. Satbir Singh deposed during chief examination that PW8 SI Karan Singh had sent him and PW Ct. Ram Avtar to hear the conversation of the persons who were planning to commit dacoity. However, the said witness contradicted during cross examination recorded on 22.05.2013 when he claimed that it was PW7 ASI Ved Prakash who had heard the conversation of the accused persons. The other relevant State V/s Parveen @ Baba etc. ("Acquitted") Page 17 of 23 FIR No. 367/08; U/s 399/402/34 IPC & Sec. 25 Arms Act; P.S. Narela. DOD: 14.10.2014 police witnesses deposed that it were PW7 ASI Ved Prakash and secret informer who had overheard the conversation of the accused persons.
Thirdly, PW1 Ct. Satbir Singh deposed that one of the accused persons was sitting on the motorcycle and rest of them were sitting on the ground, which is again contrary to the testimonies of other prosecution witnesses who have deposed that three of the accused persons were sitting on three separate motorcycles and remaining of them were sitting on the ground.
Fourthly, PW1 Ct. Satbir Singh testified during chief examination that it was PW Ct. Kutti who had taken the rukka for registration of FIR. Said portion of his testimony is belied from the record besides being contrary to the depositions made by other prosecution witnesses who have deposed that rukka was handed over to PW6 Ct. Vinod Kumar for registration of FIR.
Fifthly, PW1 Ct. Satbir Singh nowhere claimed during entire deposition that members of raiding party had taken positions at different places. However, PW5 HC Shamsher claimed that he alongwith PW6 Ct. Vinod Kumar were asked to stand on the back side of the wall near petrol pump. This part of his testimony is again contradicted by PW6 Ct. Vinod Kumar who deposed that he alongwith PW5 HC Shamsher were asked to stand near backside wall of the vacant plot.
Sixthly, PW1 Ct. Satbir Singh claimed during chief examination that after rukka was handed over to Ct. Kutti by PW8 SI Karan Singh, his statement was recorded by PW8 and he was relieved from the State V/s Parveen @ Baba etc. ("Acquitted") Page 18 of 23 FIR No. 367/08; U/s 399/402/34 IPC & Sec. 25 Arms Act; P.S. Narela. DOD: 14.10.2014 investigation. The testimony of PW4 would show that Ct. Vinod Kumar had reached PS Narela for registration of FIR at about 11.55 pm. PW9 SI Suresh Chand (2nd IO) claimed that Ct. Vinod Kumar came to him alongwith copy of FIR in question at about 12.15 am after which he alongwith Ct. Vinod Kumar went to the spot and reached there at about 12.30 am. PW1 Ct. Satbir Singh stated in his cross examination that he remained present at the spot till 12.30 am. Thus, there is an apparent contradiction in the testimony of PW1 on this aspect.
Seventhly, PW1 Ct. Satbir Singh claimed that the team of police officials remained present at the spot for about 2 - 2½ hours, which is again contradictory to the testimony of PW7 ASI Ved Prakash who claimed during cross examination that it took almost 56 hours for completion of entire proceedings.
There are certain questions which remained unanswered from the side of prosecution thereby creating reasonable doubt in favour of the accused persons. None of the prosecution witnesses had been able to disclose the registration numbers of three motorcycles which were found lying near the spot at the time of apprehension of accused persons. They also could not disclose the names of the family members of respective accused persons, who were informed about the arrest of accused persons. It has been fairly admitted by the prosecution witnesses that the secret information was neither reduced into writing nor it was conveyed to any senior police officer. It has been admitted by one of the alleged member of raiding party that no DD entry was even made regarding receipt of secret State V/s Parveen @ Baba etc. ("Acquitted") Page 19 of 23 FIR No. 367/08; U/s 399/402/34 IPC & Sec. 25 Arms Act; P.S. Narela. DOD: 14.10.2014 information.
It has come on record during cross examination of prosecution witnesses that all the members of raiding party were having mobiles with them. It has been admitted by PW8 SI Karan Singh (1st IO) as also by PW7 ASI Ved Prakash who, according to the case of prosecution had overheard the conversation of accused persons, that 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.
Furthermore, it is claimed by PW7 ASI Ved Prakash that he had overheard the conversation from a distance of about 2530 feet. It is highly improbable that the conversation would be heard by any person who is present at such a long distance of about 2530 feet. 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.
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 State V/s Parveen @ Baba etc. ("Acquitted") Page 20 of 23 FIR No. 367/08; U/s 399/402/34 IPC & Sec. 25 Arms Act; P.S. Narela. DOD: 14.10.2014 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.
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 were arrested, fire arms and cartridges were recovered from their possession.
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.
There is another reason which creates doubt in the case of prosecution story. Although, it has been claimed that PW1 and PW5 to PW9 were on patrolling duty on 18.08.2008 but none of them could disclose departure entry vide which they had left the PS. Moreover, the copy of relevant departure entry has also not been placed on record what to say of being proved during course of trial.
Court also finds considerable force in the argument raised by ld. defence counsel that accused persons did not even resist before police officials when they apprehended them as admitted by relevant prosecution State V/s Parveen @ Baba etc. ("Acquitted") Page 21 of 23 FIR No. 367/08; U/s 399/402/34 IPC & Sec. 25 Arms Act; P.S. Narela. DOD: 14.10.2014 witnesses during their respective cross examination. It is a matter of common knowledge that any person who is in possession of illegal arms and ammunitions, would definitely resist his/her apprehension by police officials under the fear of being booked in criminal case. In this backdrop, the story as set up in the charge sheet seems flimsy and does not appeal to reasoning.
Moreover, 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 near 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.
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 by our own High Court in the judgment reported at 2000 Cr.L.J. 2083.
.As per the case of prosecution, out of seven accused persons chargesheeted in this case, accused persons namely Vikas @ Baba, Amit State V/s Parveen @ Baba etc. ("Acquitted") Page 22 of 23 FIR No. 367/08; U/s 399/402/34 IPC & Sec. 25 Arms Act; P.S. Narela. DOD: 14.10.2014 Dahiya (since expired) and Jai Bhagwan @ Sonu were not arrested at the spot. Said three accused are claimed to have been arrested subsequently at different points of time on the basis of disclosure statements made by co accused persons. It is an undisputed fact that there is no recovery whatsoever effected either from the possession of any of the aforesaid accused namely Vikas @ Baba and Jai Bhagwan @ Sonu or at their instance. It is well settled law that disclosure statements made before police are not admissible in evidence unless it leads to discovery of new fact which is not the case herein. In other words, there is no legally admissible piece of evidence available on record which may connect the said accused with the commission of offence alleged in this case. Thus, Court is of the considered view that prosecution has miserably failed to establish the charges levelled against said two accused.
In the light of aforesaid discussion, Court is of the considered view that the prosecution has failed to establish the charges levelled against all the accused persons beyond shadow of doubt. Consequently, all the six accused persons namely Parveen @ Baba, Pawan Kumar, Krishan Kumar, Paramjeet @ Pamma, Vikas @ Baba and Jai Bhagwan @ Sonu are 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
dt. 14.10.2014 (Vidya Prakash)
Additional Sessions Judge04 (North)
Rohini Courts, Delhi
State V/s Parveen @ Baba etc. ("Acquitted") Page 23 of 23