Delhi District Court
State vs . Indira Puri, Rajeev Vihar, Loni, U. P. on 17 April, 2023
IN THE COURT OF SH. DHIRENDRA RANA
ADDL. SESSIONS JUDGE(FTC)-02, SOUTH EAST DISTRICT
SAKET COURTS : DELHI
In the matter of:-
(Sessions Case No. 2049/2016)
FIR No. 377/2012
Police Station Sun Light Colony
Charge sheet filed 399/402 IPC
Under Section 25/54/59 Arms Act
Charge framed Under U/sec 399/402 IPC against
Section all accused persons and 25
Arms Act against accused
Nafees.
Nafees s/o Sh. Munna r/o821, Gali No.
6, Jamia Nagar, Okhla, Delhi.
Pramod s/o Sh. Moti Lal r/oGali No. 2,
State Vs. Indira Puri, Rajeev Vihar, Loni, U. P.
Rahees s/o Sh. Yasin r/o Village Sabdal
Pur, Reshganj, Bijnour, U. P.
Rashid s/o IIyash r/o 254B, Gali No. 9,
Khada Colony, Jaitpur, Delhi
Anish s/o Nisar r/o Village Mandawali
District Bijnour, U. P. (proceedings
abated vide order dated 30.03.2022)
Date of institution 26.09.2015
Arguments concluded on 22.03.2023
Judgment Pronounced on 17.04.2023
Decision Acquitted
SC No.2049/16, FIR No. 377/2012 PS Sun Light Colony Page No. 1 of 16
State Vs. Pramod etc.
JUDGMENT
BRIEF FACTS
1. Events which set the prosecution machinery into motion is that on 27.09.2012, upon receipt of secret information, IO SI Sambhu Shah alongwith HC Prem Kumar, HC Mahender Singh, HC Surender, HC Mukesh Kumar, HC Avdhesh Kumar, HC Virbhan, Ct. Dharamvir, Ct. Lakshmi Chand, Ct. Sudesh and Ct. Harender Kumar left the PS vide DD No. 33PP and reached at Red Light Flyover, Sarai Kale Khan and police officials took their positions. At about 09:30 PM, one TSR which was coming from Red Light Sarai Kale Khan Ring Road stopped near the wall of Kamal ka Talab. Five persons deboarded the TSR and sat near Kamal ka Talab. They were talking with each other and they were calling their names as Rahis, Anish, Pramod, Nafees and Rashid. They were preparing to commit dacoity at Petrol Pump Sarai Kale Khan and discussing their roles during the process of dacoity. Upon hearing the conversation, all the accused persons were apprehended by police staff. Accused Nafees was apprehended and found in possession of one country made pistol and two live cartridges. Accused Anish was found in possession of one chilli powder packet 200 grams and one iron rod. IO prepared the rukka and got the FIR registered. He arrested the accused persons as they were planning to commit dacoity at Petrol Pump and seized the TSR bearing No. DL-1RM-0844. IO sent the country made pistol and live cartridges to FSL and obtained sanction under section 39 Arms Act from DCP concerned. After completion of investigation, charge sheet for the offences u/s 399/402 IPC and 25/54/59 Arms Act against accused persons namely Pramod, Rashid, Nafis, Anish and Rahis was filed in the court.
SC No.2049/16, FIR No. 377/2012 PS Sun Light Colony Page No. 2 of 16 State Vs. Pramod etc. CHARGE
2. On committal of the case to the Court of Sessions, vide order dated 15.12.2005 charge u/s 399/402 IPC against accused Pramod, Rashid, Nafees, Rahees and Anish was found to be made out. The formal charge was framed on the said date to which they pleaded not guilty and claimed trial. Accused Nafees was additionally charged under section 25 Arms Act to which he pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE
3. Thereafter, prosecution in support of its case have examined 7 witnesses in all.
FORMAL WITNESSES
4. PW1 HC Lakhan Singh, being the duty officer, registered the FIR which is Ex. PW1/A. He made his endorsement on rukka which is Ex. PW1/B.
5. PW4 is Sh. Gaurav Sharma, IPS. He deposed that on 09.07.2013 he accorded the sanction under section 39 Arms Act which is Ex. PW4/A against accused Nafees after perusing the relevant record including ballistic report and police file.
6. PW5 is SI Shri Kishan. He deposed that 27.07.2014 the present case file was handed over to him for further investigation and after going through the file, he prepared the charge sheet and filed the same in the court.
7. PW6 is SI Hari Kumar. He deposed that on 11.10.2012, on the SC No.2049/16, FIR No. 377/2012 PS Sun Light Colony Page No. 3 of 16 State Vs. Pramod etc. instructions of IO, he took exhibits i.e., one desi katta and two live cartridges from MHC(M) and deposited the same in FSL, Rohini vide road certificate No. 80/21/12. He deposited the receiving/acknowledgement issued by FSL with MHC(M).
WITNESSES OF INVESTIGATION
8. PW2 is HC Dharambir. He deposed that on 22.09.2012 at about 08:10 PM, he alongwith IO/SI Shambhu Shah, HC Pramod, HC Surender, HC Mukesh, HC Vir Bhan, HC Avdesh, Ct. Lakhmi and Ct. Harinder were on patrolling duty in the area of Pushta Ring Road. He further deposed at about 09:30 PM, IO/SI Shambhu Shah received a secret information that five persons in a three wheeler would come at petrol pump, Saria Kale Khan to commit dacoity. At about 09:45 PM, a three wheeler came from the side of ITO towards Sarai Kale Khan and secret informer pointed out towards the said TSR. The TSR was stopped at red light signal at Sarai Kale Khan and was parked at footpath, five persons alighted from the TSR and all the five persons sat near the wall of Kamal ka Talab. He further deposed that he overheard their conversation and they were planning that Pramod, who was having knife would cover the road. Rahis, who was having katta, would go to cash counter whereas Anish, who was having chilli powder and iron rod would throw the chilli powder in the eyes of petrol pump employees and would break the glass by the iron rod. He further deposed that all the accused persons were apprehended. He alongwith IO and HC Mukesh apprehended accused Rahis and rest accused persons were apprehended by other members of raiding party. He further deposed that said katta and live cartridges were recovered from the possession of accused Nafees. IO prepared the sketch of katta and live cartridges which is Ex. PW2/A and seized the same vide seizure memo which SC No.2049/16, FIR No. 377/2012 PS Sun Light Colony Page No. 4 of 16 State Vs. Pramod etc. is Ex. PW2/B. He further deposed that IO prepared the rukka and handed over the same to him for registration of FIR. He went to PS and got the FIR registered and came back alongwith copy of FIR and original rukka. He further deposed that accused persons were arrested and their personal search was conducted vide memos which are Ex. PW2/B-1 to Ex. PW2/B-10. Disclosure statement of accused Nafees was also recorded which is Ex. PW2/C. He exhibited katta as Ex. P1, cartridges as Ex. P2 (colly) and photographs of TSR bearing No. DL1RM0844 as Ex. P3 (colly).
In his cross examination, he stated that secret information was received by the IO under the flyover. He stated that all the police officials were carrying weapons except him and Ct. Lakhmi. He stated that IO did not ask for any help from SHO and chowki Incharge after receiving the information. He stated that there were many public persons including rehri patri wala at the place of receiving information and IO did not serve any notice to any public person to join the investigation. He stated that kamal ka talab was about 500 meters away from the ring road. He stated that no other person was present at Kamal ka talab and they took their position before arrival of the accused persons. He stated that spot was not properly lit. He stated that he was accompanied by IO and HC Mukesh when they heard the conversation of accused persons. He stated that accused hardly ran about 2-3 meters when they were apprehended. He stated that accused were brought towards ring road and documentation work was done by IO while sitting on a bench under an electricity pole. He stated that Nafees was searched by HC Mukesh and he was carrying a katta in his hand and cartridges were in his right pocket. He stated that nothing was recovered from the personal search of accused Nafees and Anish. He could not tell as to who had taken the search of accused Anish, however, he signed on all the search memo of the accused persons.
SC No.2049/16, FIR No. 377/2012 PS Sun Light Colony Page No. 5 of 16 State Vs. Pramod etc.
9. PW3 is HC Lakhmi Chand. He deposed on the lines of PW2 HC Dharambir being the member of raiding party. He exhibited iron rod recovered from the possession of accused Anish as Ex. P4 and red chilli powder made Everest Tikha Lal recovered from accused Anish as Ex. P5.
In his cross examination, he could not tell the sequence of recording of statements by the IO at the spot. He stated that Sarai Kale Khan bus stand was at a distance of 300 meters from the spot and the police post was at a distance of 400 meters. He admitted that there were many passengers/public persons near Sarai Kale Khan bus stand. He stated that ring road was at a distance of 10 meters where as one DDA park was located at a distance of 30 meters from the spot. He could not tell whether IO had noted down names and addresses of public persons, who refused to join the proceedings. He admitted that there was no electricity pole installed at kamal ka talab. He further admitted that proceedings were easily visible to the public at large from the main road as all members of raiding party were in police uniform. He stated that he went to the place of incident alone and remaining members of the team reached within 10 minutes of his arrival. He stated that he received the message telephonically from the chowki around 08:00 PM but he could not tell, who was the caller. He admitted that he did not lodge any DD entry before proceeding to the spot. He stated that he apprehended accused Rahees at about 09:30 PM but he could not tell the colour of his clothes. He admitted that members of the raiding party did not offer their personal search to the accused persons. He stated that no police official including SHO came to the spot during the proceedings. He admitted that he did not sign any document pertaining to accused Nafees and he could not tell as to who had conducted personal search of accused Nafees. He could not tell from where country made pistol was recovered. He stated that writing work was done by the IO while SC No.2049/16, FIR No. 377/2012 PS Sun Light Colony Page No. 6 of 16 State Vs. Pramod etc. sitting on the ground. He could not tell who else was doing the writing work except the IO. He stated that rukka was sent at 10:30 PM and HC Dharamvir came back around 11:45 PM.
10. PW7 is Retd. SI Sambhu Shah. He is the IO in this case and deposed on the lines of investigation done by him and fully supported the version of PW2 and PW3 qua the raid, apprehension of accused persons and recovery of case properties from them. He exhibited DD No. 33 as Ex. PW7/A seizure memo of red chilli powder and iron rod as Ex. PW7/B and Ex. PW7/C, rukka as Ex. PW7/D, seizure memo of TSR as Ex. PW7/E and site plan as Ex. PW7/F. In his cross examination, he stated that he was alone at Police Post when he received the information and he informed chowki Incharge and SHO telephonically. He stated that raiding party was briefed beneath flyover Sarai Kale Khan and many commuters were passing by at the time of briefing. He admitted that he did not ask any public person to join the proceedings. He stated that secret informer was present at the time of briefing and they reached at the spot around 09:00 PM. He stated that police party was stationed at a distance of 200 meters from the place where accused persons were spotted. The police party was at a distance of 50 meters from the road. He admitted that there was noise pollution due to movement of vehicles. He stated that Sarai Kale Khan bus stand was at a distance of 100 yards from the spot whereas police post was around 500 meters away. He stated that DDA Nursery was located at a distance of 100 yards from the spot and they stayed at the spot till 03:00 AM. He could not tell with certainty whether the writing work at the spot was done by him personally or with the help of Head Constables. He further admitted that he was not carrying any weapon during the raid as other SC No.2049/16, FIR No. 377/2012 PS Sun Light Colony Page No. 7 of 16 State Vs. Pramod etc. members were duly armed. He admitted that the place where the police party took its position has not been shown in the site plan.
11. Vide statement under section 294 CrPC recorded on 19.11.2022 accused persons, admitted FSL report No. F7504/2012 which is Ex. A1, Superdarinama of TSR bearing No. DL1RM0844 executed by Ms. Taiba Khatoon which is Ex. A2.
STATEMENT OF ACCUSED UNDER SECTION 313 Cr.P.C
12. After closure of PE, statements of accused persons were recorded u/s 313 Cr.P.C. on 21.02.2023, wherein they denied all the incriminating evidences put to them. They stated that they are innocent and they have been falsely implicated in the present case. They further stated that all the witnesses are police officials and they have concocted a false story.
Accused persons opted not to lead defence evidence.
13. Thereafter, matter was fixed for final arguments.
ARGUMENTS
14. I have heard Ld. Addl. PP for State and Sh. Udai Raj Singh, Ld. counsel for accused Nafees and Sh. Rajesh Kumar Singh, Ld. counsel for accused Pramod, Rahees and Rashid.
15. It was argued by Ld. Addl. PP that the allegations levelled against the accused are of serious nature. All of them conspired to commit an armed dacoity at petrol pump located near Sarai kale Khan bus stand but they were apprehended in time. Accused Nafees was found in possession of country made pistol alongwith live cartridges whereas accused Anish (since deceased) SC No.2049/16, FIR No. 377/2012 PS Sun Light Colony Page No. 8 of 16 State Vs. Pramod etc. was found in possession of chilli powder and an iron rod. It was argued that prosecution has successfully proved its case on the basis of ocular testimonies of PW2, PW3 and PW7.
It was further argued that all the police officials have clearly proved the chain and the manner of investigation and merely because the witnesses are police officials their testimony cannot be disbelieved and for this reliance is placed on the case of Girija Prasad Vs. State of M.P. (2007) 7 SCC
625.
16. Per contra, Sh. Udai Raj Singh, Ld. Counsel for accused Nafees and Sh. Rajesh Kumar Singh, Ld. counsel for accused Pramod, Rahees and Rashid have argued that this is a false and concocted case hoisted against the accused persons. No public witness has been cited by the prosecution to support the theory of alleged apprehension of accused and recovery of arms. PW2, PW3 and PW7 have deposed in such a manner that their testimonies are not supporting each other and suffering from serious deformities which have raised a serious doubt upon the prosecution's story. Hence, accused persons are entitled to be given benefit of doubt and they may be acquitted accordingly.
17. I have heard the arguments at length and perused the entire record.
FINDINGS
18. The accused Pramod, Rahees, Rashid and Nafees have been charged for the commission of offences punishable under Section 399/402 IPC. Accused Nafees has also been additionally charged under section 25 Arms Act.
19. The relevant sections are reproduced as under:
SC No.2049/16, FIR No. 377/2012 PS Sun Light Colony Page No. 9 of 16 State Vs. Pramod etc. SECTION 399 IPC Making preparation to commit dacoity.--Whoever makes, any preparation for committing dacoity, shall be punished with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine.
SECTION 402 IPC Assembling for purpose of committing dacoity.-- Whoever, at any time after the passing of this Act, shall be one of five or more persons assembled for the purpose of committing dacoity, shall be punished with rigorous imprisonment for a term which may extend to seven years, and shall also be liable to fine.
SECTION 25 ARMS ACT Punishment for certain offences-- [(1) Whoever--
(a) manufactures, sells, transfers, converts, repairs, tests or proves, or exposes or offers for sale or transfer, or has in his possession for sale, transfer, conversion, repair, test or proof, any arms or ammunition in contravention of section 5; or
(b) shortens the barrel of a firearm or converts an immitation firearm into a firearm in contravention of section 6; or 21 [***]
(d) bring into, or takes out of, India, any arms or ammunition of any class or description in contravention of section 11, shall be punishable with imprisonment for a term which shall not be less than three years but which may extend to seven years and shall also be liable to fine.
20. It is a settled law of criminal jurisprudence that a person is believed to be innocent till the guilt is proved against him. This principle is called The Presumption of Innocence. In another words, the accused is entitled to take advantage of reasonable doubt in respect of his crime. The principle finds its genesis in the Declaration of Human Rights under Article 11 Section 1 incorporated by the United Nations in 1948. It is also mentioned in the European Convention for the Protection of Human Rights in Article 6 SC No.2049/16, FIR No. 377/2012 PS Sun Light Colony Page No. 10 of 16 State Vs. Pramod etc. Section 2 and United Nations International Covenant on Civil and Political Rights under Article 14, Section 2.
Presumption of Innocence is a re-statement of the rule that in criminal matters the prosecution has the burden of proving guilt of the accused in order to be convicted of the crime of which he is charged.
In Chandrashekhar Vs. State of Himachal Pradesh decided on 06.07.2018 relying on judgment of Data Ram Singh Vs. State of UP passed by the Hon'ble Supreme Court on 06.02.2018, it was held that:
"the freedom of an individual is utmost important and cannot be curtailed specially when guilt if any, is yet to be proved. It is settled law that till such time guilt of a person is proved, he is deemed to be innocent........ A fundamental postulate of criminal juris prudence is a presumption of innocence meaning thereby that a person is believed to be innocent until found guilty..........
Thus, the inference which is culled out from the above is that it is for the prosecution to prove the guilt of the accused beyond reasonable doubt.
21. In this backdrop, I proceed to delve upon the evidence adduced on behalf of the prosecution.
22. It is the case of prosecution that 11 police personnels were part of the raiding party which was formed by PW7 SI Shambhu Shah when he received the secret information from the secret informer that armed dacoity would be committed at Petrol Pump. IO SI Shambhu Shah, HC Pramod, HC Surender, Ct. Sudesh, HC Mahender, Ct. Dharambir, HC Mukesh, HC Veerbhan, HC Avdesh, Ct. Lakhmi and Ct. Harender were members of the raiding party. Out of them PW2 ASI Dharamvir, PW3 ASI Lakhmi Chand and PW7 Retd. SI Shambhu Shah have been examined by the prosecution. SC No.2049/16, FIR No. 377/2012 PS Sun Light Colony Page No. 11 of 16 State Vs. Pramod etc. Admittedly, no public witness has been cited and therefore, these three members of the raiding party are material witnesses in this case.
23. These police witnesses have supported case of the prosecution but they are narrating different stories qua police proceedings took place in their presence. PW7 IO SI Shambhu Shah was the first person, who received the secret information about the planning of dacoity. He stated that he received the information at police post and he was alone at that time whereas PW2 HC Dharamvir has stated that information was received by the IO under the flyover. Therefore, there is no clarity as to at which place the alleged secret information was received by PW7.
24. Secondly, PW2 HC Dharamvir has deposed that TSR, occupied by accused persons, was stopped at Red Light Signal at Sarai Kale Khan and it was parked at the footpath whereas PW3 HC Lakhmi Chand has stated that the TSR came and halted near the wall. PW7 IO SI Shambhu Shah has deposed that TSR was stopped near Kamal Talab. Therefore, all these three witnesses are not sure as to at which place, TSR was stopped and where it was parked by the accused persons.
25. Thirdly, there is serious doubt about the fact whether the documentation work was done at the spot or not by the IO. PW2 HC Dharamvir stated that accused persons were apprehended at Kamal ka Talab and they were brought towards Ring road which was at a distance of 200250 meters. He stated that IO prepared the documents while sitting on the bench SC No.2049/16, FIR No. 377/2012 PS Sun Light Colony Page No. 12 of 16 State Vs. Pramod etc. under an electricity pole. PW3 HC Lakhmi Chand has stated that ring road was at a distance of 10 meters from the place of apprehension and there was no electricity pole installed/available at kamal ka talab. He stated the writing work was done by the IO while sitting on the ground. He could not tell who else was doing the writing work except IO. PW7 IO himself is not certain whether the entire writing work was done by him or he had took any assistance from any police official. Therefore, these three witnesses are not sure as to where and by whom the alleged writing work was done by the IO.
26. Fourthly, PW2 and PW3 have deposed that IO had requested some public persons to join the raid proceedings but this fact has been flatly denied by PW7 IO when he stated that he did not request any public person to join the proceedings despite their availability around the spot. The place of apprehension was located near the 24 hours busy bus stand of Sarai Kale Khan but there is no effort on the part of the IO to join any commuter/passenger/public person as a recovery witness in the alleged raid.
27. Fifthly, it is the case of the prosecution that the conversation of the accused persons was overheard by the police members when they were discussing about the role to be played by them during the alleged commission of dacoity. PW2 HC Dharambir has stated that he was on the other side of the wall where accused persons were sitting and the height of the said wall was about 2.53 feet. He also admitted that the spot of Kamal Talab was not properly lit and they were about 23 meters away from the wall. On the other hand, PW7 has admitted that there was noise pollution due to movement of SC No.2049/16, FIR No. 377/2012 PS Sun Light Colony Page No. 13 of 16 State Vs. Pramod etc. vehicles. Moreover, IO has not stated so that he overheard the conversation of accused persons alongwith PW2 HC Dharamvir. Interestingly, PW3 has stated that IO had given warning to the accused persons but this fact has not been stated by PW7 IO SI Shambhu Shah. If, the conversation was heard by PW2 and PW7 then there was no reason or occasion for PW7 to warn the accused persons as claimed by PW3. It is beyond comprehension of this court as to how come a person sitting at the other side of the wall could hear the conversation of the accused persons which ought to have been done not so loudly that it can be overheard by anybody as they were allegedly talking about their roles to be played in the commission of dacoity. Therefore, this aspect is also under a serious scanner that PW2 and PW7 were able to hear the conversation of the accused persons.
28. Sixthly, PW2 was not armed with any weapon during the raid and he has stated that except him and Ct. Lakhmi, other raiding members were armed with weapons. Surprisingly, IO SI Shambhu Shah has denied that he was armed with any weapon during the raid. If, PW7 had received the secret information about such serious offence which was about to take place, then his conduct of not getting issued a weapon for the purpose of raid is beyond explanation and highly dubious.
29. Seventhly, PW2 has stated that a katta was recovered from accused Rahees whereas PW3 has stated that one knife was recovered from accused Rahees. PW7 IO has turned the tables on its head when he deposed that nothing was recovered from accused Rahees. PW3 has further deposed SC No.2049/16, FIR No. 377/2012 PS Sun Light Colony Page No. 14 of 16 State Vs. Pramod etc. that country made pistol was recovered from accused Nafees. PW3 could not tell from whose possession red chilli powder was recovered and he could not tell as to what other articles were recovered from the accused persons. He was cross examined by Ld. Additional PP for the State wherein he stated that an iron rod and chilli powder was recovered from accused Anish. Therefore, these three important members of the raiding party are not sure as to what case properties were recovered from the accused persons at the time of their arrest which smacks of plantation of the case property by the IO.
30. Therefore, when all the above mentioned anomalies are kept in juxta position to each other, it is highly doubtful that this police raid was ever conducted as PW2, PW3 and PW7 are narrating different stories on the material aspects.
CONCLUSION
31. Thus, in view of the aforesaid findings, since there are material contradictions and improvisations in the testimony of recovery witnesses i.e., PW2, PW3 and PW7. Public witness has not been joined in the raid proceedings despite their availability and it is admitted case that no effort was done by the IO to join them during the apprehension proceedings. Police witnesses are not corroborating each other and there is no other independent witness, who could have deposed in the favour of prosecution and against the accused persons. Therefore, there is no hesitation in holding that the prosecution has failed to prove its case beyond reasonable doubt and accordingly, accused persons stand acquitted of the charges levelled against them for committing offences under section 399/402 IPC. Accused Nafees is SC No.2049/16, FIR No. 377/2012 PS Sun Light Colony Page No. 15 of 16 State Vs. Pramod etc. also acquitted for committing an offence under section 25 Arms Act.
Digitally signed by DHIRENDRA DHIRENDRA RANA RANA Date: 2023.04.17 16:30:41 +0530 Dictated and announced in the open (Dhirendra Rana) Court on 17.04.2023 Addl. Session Judge-FTC-02 (running in 16 pages) (South East), Saket Courts/Delhi SC No.2049/16, FIR No. 377/2012 PS Sun Light Colony Page No. 16 of 16 State Vs. Pramod etc.