Delhi District Court
State vs . (1). Kuldeep on 23 December, 2019
FIR No. 146/11; U/s 399/402/186/353/307 IPC & 25/27 Arms Act; P.S. Dwarka Sector23 D.O.D.: 23.12.2019 IN THE COURT OF SHRI VIDYA PRAKASH: ADDL. SESSIONS JUDGE03 & SPECIAL JUDGE (COMPANIES ACT) : SOUTHWEST DISTRICT, DWARKA COURTS: NEW DELHI Session Case No. 440794/2016 Unique Case ID No. DLSW010000922012 State Vs. (1). Kuldeep S/o Sh. Bhanwar Singh R/o A55, Gali No.2, Nangli Dairy, Najafgarh, New Delhi (2). Keshav S/o Sh. Chander Pal Singh R/o C2/113, Nangli Vihar Extension, Najafgarh, New Delhi. (3). Pramod S/o Sh. Vijay Pal R/o A38, Das Garden, Bapraula Vihar, Gali No.20, Nangli Dairy, Delhi. (4). Naveen Dogra (died and proceedings against him stands abated vide order dated 01.09.2018). (5). Abhimanyu @ Bodka (declared PO vide order dated 03.12.2012). FIR No. : 146/2011 Police Station : Dwarka Sector23 Under Sections : 399/402/186/353/307 IPC & 25/27 Arms Act Date of committal to Sessions Court : 20.12.2012 Date on which judgment was reserved: 10.12.2019 Date on which Judgment pronounced : 23.12.2019 State V/s Kuldeep & Ors. (Acquitted) Page 1 of 16 FIR No. 146/11; U/s 399/402/186/353/307 IPC & 25/27 Arms Act; P.S. Dwarka Sector23 D.O.D.: 23.12.2019 JUDGMENT
1. The case of the prosecution as mentioned in the charge sheet is that on 31.10.2011 at about 7.00 pm, secret informer reached the office of Special Staff, Sector16A, Dwarka and informed SI B.S. Gulia (PW13) that accused Naveen Dogra alongwith his associates would commit dacoity at Sethi Auto Service Station, NH8, Mahipal Pur, New Delhi, for which they would assemble on the road coming from Village Shahbad Mohammad Pur towards Underpass near closed gate of Airport at about 8.30 pm and they would also be armed with illegal weapons. SI B.S. Gulia (PW13) conveyed the said secret information with Inspector Ranjit Singh of Special Staff, who instructed him to work upon the said information. Thereafter, SI B.S. Gulia constituted a raiding party consisting of himself, HC Govind Singh (PW2), HC Rambir Singh (PW17), HC Satish Kumar, Ct. Dharmender (PW1) and Ct. Deepak Kumar (PW8) and briefed the raiding party about the secret information. After taking arms and ammunition, the raiding party alongwith secret informer left the office in civil/plain clothes in official gypsy No.DL1CJ4415 which was being driven by driver namely Ct. Rajesh Kumar (PW7). At about 8.00 pm, the raiding party reached Shahbad Mohammad Pur Railway Fatak, where SI B.S. Gulia asked 67 passers by to join the raiding party but none agreed and they all left the spot showing their inability without disclosing their names and addresses. Without wasting the time any further, the raiding party reached near the spot and government vehicle was parked in hiding condition away from the spot. Thereafter, SI B.S. Gulia briefed the raiding team that after satisfying himself about the secret information, he would give signal to the raiding party by flashing torch of his mobile phone two times. After that, the members of the raiding party took State V/s Kuldeep & Ors. (Acquitted) Page 2 of 16 FIR No. 146/11; U/s 399/402/186/353/307 IPC & 25/27 Arms Act; P.S. Dwarka Sector23 D.O.D.: 23.12.2019 their positions. After about five minutes, two boys came on motorcycle from the side of Village Shahbad Mohammad Pur and after parking the motorcycle, went towards the wall of Airport. Twothree minutes thereafter, three boys came on another motorcycle from the side of Village Shahbad Mohammad Pur and after parking the motorcycle, those three boys also joined the earlier two boys. The secret informer pointed out towards those boys to be Naveen Dogra and his associates. Thereafter SI B.S. Gulia went near those boys by hiding himself in the bushes and heard their conversation. They were planning to commit dacoity and one of those boys was stating that "Keshav tu petrol pump wale ko janta hai isliye pehle jakar bahar kaam karne walo ko baaton mein laga lena, jo dikkat hone par apne paas rakhe mirchi powder ka istemaal karna" and that thereafter they would enter the office of Manager and would commit dacoity of cash on the point of weapons. On hearing the said conversation, SI B.S. Gulia gave signal to the members of the raiding party and also warned those boys to surrender themselves. On this, those boys tried to run away from the spot and one of those boys also fired towards SI B.S. Gulia but he managed to save himself. Said boy was overpowered by HC Govind (PW2), whose name was later on revealed as Naveen Dogra and SI B.S. Gulia snatched the countrymade pistol from his hand.
2. HC Satish Kumar apprehended accused Kuldeep, Ct. Dharmender apprehended accused Pramod Kumar, Ct. Deepak Kumar (PW8) apprehended accused Abhimanyu @ Bodka and HC Rambir (PW17) apprehended accused Keshav Kumar.
3. Upon instructions of SI B.S. Gulia, HC Govind took formal search of accused Naveen Dogra and from the right pocket of pant worn by accused Naveen Dogra, one live cartridge .315 bore was recovered. On checking the countrymade pistol recovered from him, it was found containing one empty State V/s Kuldeep & Ors. (Acquitted) Page 3 of 16 FIR No. 146/11; U/s 399/402/186/353/307 IPC & 25/27 Arms Act; P.S. Dwarka Sector23 D.O.D.: 23.12.2019 shell.
4. Upon instructions of SI B.S. Gulia, HC Satish Kumar took formal search of accused Kuldeep and one dagger (chhura) was recovered from him, which was kept by him in a black colour cover in right back side of his pant.
5. Upon instructions of SI B.S. Gulia, Ct. Dharmender (PW1) took formal search of accused Pramod Kumar and one dagger (chhura) was recovered from him which was kept by him in a colourful cover (fauji type) in right back side of his pant.
6. Upon instructions of SI B.S. Gulia, Ct. Deepak Kumar (PW8) took formal search of accused Abhimanyu @ Badka and one dagger (chhura) was recovered from a bag which he was holding in his right hand.
7. Upon instructions of SI B.S. Gulia, HC Rambir (PW17) took formal search of accused Keshav Kumar and from the right pocket of pant worn by accused Keshav Kumar, one polythene was recovered which was found containing chilly power.
8. SI B.S. Gulia prepared sketches of the arms and ammunitions as well as the daggers recovered from the possession of accused persons and took their measurements.
9. SI B.S. Gulia kept recovered countrymade pistol alongwith one live cartridge and empty shell in one pullanda, recovered three knives in three separate cloth pullandas and chilly powder in another cloth pullanda and also filled form FSL and all the five pullandas were sealed with the seal of BSG and were seized.
10. SI B.S.Gulia handed over seal after use to Ct. Dharmender. Thereafter, he prepared rukka (Ex.PW13/1) and same was handed over to Ct. Dharmender who accordingly went to police station and got the FIR no. 146/2011 (Ex.PW5/A) registered at PS Dwarka Sector23 through Inps. Rahul State V/s Kuldeep & Ors. (Acquitted) Page 4 of 16 FIR No. 146/11; U/s 399/402/186/353/307 IPC & 25/27 Arms Act; P.S. Dwarka Sector23 D.O.D.: 23.12.2019 Kumar (PW5) (the then SI), who also made endorsement (Ex.PW5/B) on rukka. After registration of the case, further investigation was entrusted to SI Hari Kishan (PW15) (the then ASI).
11. PW1 Ct. Dharmender came back to the spot and handed over copy of FIR and original rukka to SI Hari Kishan (PW15) who had also reached the spot on receipt of DD No.20A (Ex.PW15/1).
12. Accordingly, SI Hari Kishan (PW15) conducted further investigation of the case. SI B.S. Gulia handed over custody of all the accused persons and also handed over the sealed pullandas, seizure memos, FSL Forms and sketches to SI Hari Kishan who prepared site plan (Ex.PW15/2) at the instance of SI B.S. Gulia and also recorded his statement and thereafter, SI B.S. Gulia left the spot.
13. SI Hari Kishan (PW15) interrogated the accused persons Naveen Dogra, Kuldeep, Keshav Kumar, Abhimanyu @ Bodka and Parmod Kumar; arrested them in this case vide arrest memos (Ex.PW2/E, Ex.PW15/8, Ex.PW15/7, Ex.PW8/D & Ex.PW1/C respectively); also conducted their personal search vide memos (Ex.PW2/F, Ex.PW15/9, Ex.PW15/10, Ex.PW8/E & Ex.PW1/D respectively) and recorded their disclosure statements (Ex.PW15/3, Ex.PW15/4, Ex.PW15/5, Ex.PW15/6 and PW1/E respectively). SI Hari Kishan also seized the two motorcycles bearing registration No.DL9SAE6191 and DL9SAE6426, on which the accused persons came to commit dacoity, vide seizure memos (Ex.PW2/C & Ex.PW2/D). The aforesaid motorcycle having number plate of DL9SAE 6191 was stated to be stolen by accused Naveen Dogra and Pramod Kumar from Vijay Enclave, Dabri. The other motorcycle DL9SAE6426 was stated to be belonging to accused Naveen Dogra. After returning back to the PS, SI Hari Kishan deposited the case property in the malkhana. During further State V/s Kuldeep & Ors. (Acquitted) Page 5 of 16 FIR No. 146/11; U/s 399/402/186/353/307 IPC & 25/27 Arms Act; P.S. Dwarka Sector23 D.O.D.: 23.12.2019 investigation, SI Hari Kishan got deposited through Ct. Ajay Kumar (PW10) the sealed pullanda containing country made katta, one live cartridge and one empty shell and also collected FSL result (Ex.PW3/A). He also recorded statements U/s 161 Cr.PC of the witnesses and also obtained sanction U/s 39 Arms Act (Ex.PW14/1) for prosecuting accused Naveen Dogra.
14. After completion of investigation, chargesheet was filed before the Court of Ld. M.M.
15. 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.
16. After hearing arguments on the point of charge, Ld. Predecessor of this Court was pleased to frame the charge for offences punishable u/s 399/402/186/353/307/34 IPC against accused persons namely Naveen Dogra, Kuldeep, Keshav Kumar, Abhimanyu @ Bodka and Parmod Kumar and separate charge in respect of offences u/s 25/27 Arms Act was framed against accused Naveen Dogra, vide order dated 08.02.2013, to which they pleaded not guilty and claimed trial.
17. During trial, the prosecution examined 17 witnesses in all in support of its case.
18. It is relevant to mention here that during trial, accused Abhimanyu absconded and he was declared as Proclaimed Offender vide order dated 03.12.2012. Further, accused Naveen Dogra had expired and proceedings against him stood abated vide order dated 01.09.2018.
19. Statements U/s 313 Cr.PC of remaining three accused persons namely Kuldeep, Keshav Kumar and Pramod Kumar were recorded during which all the incriminating evidence which came on record, were put to them which they denied. The said three accused persons claimed that they are innocent and have been falsely implicated in this case.
State V/s Kuldeep & Ors. (Acquitted) Page 6 of 16FIR No. 146/11; U/s 399/402/186/353/307 IPC & 25/27 Arms Act; P.S. Dwarka Sector23 D.O.D.: 23.12.2019
20. Accused Kuldeep stated that on one day, when he was going for work and was waiting at bus stop Nangli Dairy, coaccused Parmod and Naveen Dogra alongwith two other persons in Maruti 800 car and since he had met them on few earlier occasions, they stopped their car and he requested them to drop him at Metro Station. Thereafter, he was taken to PS Sector16, Dwarka and then he came to know that those two other persons were police officials.
21. Accused Keshav Kumar stated that on 31.10.2011 at about 5.00 pm, 5 6 police officials in civil dress came to his house alongwith coaccused Naveen Dogra and one Praveen (Milk Seller) and took him to a place in Dwarka Sector23, where other persons were also detained. He and those other persons were beaten up by the police officials and further they demanded Rs.22½ lakhs from his brother for his release.
22. Accused Parmod Kumar stated that he knew coaccused Naveen Dogra, who was residing in his colony and both of them remained in custody in other case also. Police falsely implicated him in this case on account of associate of coaccused Naveen Dogra.
23. However, all the three accused persons namely Kuldeep, Parmod Kumar and Keshav Kumar opted not to lead any evidence towards their defence.
24. 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:
25. PW1 Constable Dharmender, PW2 HC Govind, PW8 Ct. Deepak Kumar, PW13 SI B.S. Gulia (now Inspector) and PW17 ASI Rambir Singh were the members of the raiding team so constituted as per direction of senior police officer on the basis of secret information received by PW13. They all State V/s Kuldeep & Ors. (Acquitted) Page 7 of 16 FIR No. 146/11; U/s 399/402/186/353/307 IPC & 25/27 Arms Act; P.S. Dwarka Sector23 D.O.D.: 23.12.2019 five deposed on the lines of prosecution story during their respective chief examination, by testifying that on 31.10.2011, they all left the office of Special Staff, SouthWest District on receipt of secret vide DD No.17 and reached the spot after making futile efforts to join some passers by in the raiding team as none agreed to do so. They also deposed about the necessary instructions given by PW13 to other members of raiding team as well as about the signal to be given to them by PW13 by switching on the torch of his mobile after information is confirmed by him. They also deposed about the culprits being identified by secret informer; their conversation being heard by PW13 and giving agreed signal by him to other members of raiding team, as also about apprehension of the accused persons by them. They also deposed about recovery of countrymade pistol and cartridges from possession of accused Naveen Dogra (since died), as also about recovery of knives/daggers from accused persons namely Kuldeep, Parmod and Abhimanyu, as also about recovery of polythene bag containing red chilly powder from accused Keshav. They also testified about the relevant proceedings regarding preparation of sealed pullandas of recovered arms and ammunitions; their seizure by PW13 and preparation of rukka (Ex.PW13/I) and factum of FIR being got registered through PW1. They have exhibited the relevant sketches and seizure memos of the recovered case properties. They also identified accused Kuldeep, Keshav and Parmod during trial.
26. PW3 Dr. N.P.Waghmare, Assistant Director, FSL Rohini, deposed that on 11.11.2011, one sealed parcel sealed with the seal of BSG was received in the office of FSL, Rohini and same was allotted to him for examination and opening the said parcel, it was found to contain one countrymade pistol of 8mm/.315" bore marked Ex.'F1', one 8 mm/.315" cartridge marked Ex.'A1' and one 8mm/.315" empty cartridge case marked Ex.''EC1". He further State V/s Kuldeep & Ors. (Acquitted) Page 8 of 16 FIR No. 146/11; U/s 399/402/186/353/307 IPC & 25/27 Arms Act; P.S. Dwarka Sector23 D.O.D.: 23.12.2019 deposed that on examination the 'F1' i.e. country made pistol, it was found in normal working order and Ex.'A1' was successfully test fired through countrymade pistol "F1" and it was opined that "A1" was live ammunition before it was test fired in the laboratory and he prepared a detailed report Ex.PW3/A.
27. PW4 Surender Singh, ACP, deposed that on 03.04.2012, SI B.S.Gulia moved an application alongwith copy of FIR, seizure memos, statements of the witnesses and other relevant documents before him for obtaining the permission u/s 195 CrPC to prosecute the accused persons namely Naveen Dogra, Kuldeep, Parmod Kumar, Keshav Kumar and Abhimanyu @ Badka for the offences u/s 186 IPC & 353 IPC and thereafter, he accorded permission u/s 195 CrPC to prosecute the said accused persons for the said offences vide his permission Ex.PW4/A.
28. PW5 Rahul Kumar, Inspector Central Excise and Customs, Hyderabad, deposed that on 31.10.2011, on the basis of rukka received from Constable Dharmender sent by SI B.S.Gulia, he got the FIR Ex.PW5/A, registered in present case and he made his endorsement on the rukka Ex.PW5/B.
29. PW6 is Sh.Govind Jha, who deposed that he was working as Manager at Sethi Auto Service Station, Mahipal Pur. In the month of November 2011, some police officials came to said service station and inquired about Keshav and he told them that Keshav had worked there for about two and half years as pump attendant.
30. PW7 Constable Rajesh, deposed that on 31.10.2011, he was posted in Special staff as driver and used to drive Maruti Gypsy No. DL1CJ4415. On that day he had taken the said vehicle from his office in Sector16, Dwarka to village Shahbad Mohd Pur alongwith SI B.S.Gulia, HC Govind, HC Satish, Constable Dharminder and Constable Deepak. He produced the original log State V/s Kuldeep & Ors. (Acquitted) Page 9 of 16 FIR No. 146/11; U/s 399/402/186/353/307 IPC & 25/27 Arms Act; P.S. Dwarka Sector23 D.O.D.: 23.12.2019 book register w.e.f. 01.03.2011 to 31.07.2012 pertaining to said vehicle and proved the relevant entry as Ex.PW7/A.
31. PW9 is Smt. Pinku, who is the registered owner of motorcycle No.DL 9SAE6426, having got the same released on superdari.
32. PW10 is Ct. Ajay Kumar who had deposited sealed pullanda of countrymade pistol in FSL, Rohini on 11.11.2011 vide RC No.121/21.
33. PW11 is Inspector Ranjit Dhaka. He deposed that on 31.10.2011 while he was posted as Inspector, Special Staff, SouthWest District, SI B.S. Gulia conveyed him about the secret information and he had issued instruction to constitute a raiding party and to take further action.
34. PW12 is HC Dheer Singh. He was working as Duty Officer from 8.00 pm of 31.10.2011 to 08.00 am of 01.11.2011. He has proved copy of DD No.20 regarding call from SI B.S. Gulia regarding apprehension of 34 persons near underpass at Shahbad Mohammad Pur, as Ex.PW12/A.
35. PW14 is Sh. R.K. Pandey, the then Addl. DCP, SouthWest District. He has proved sanction under Section 39 Arms Act accorded by him for prosecuting accused Naveen Dogra for offence under Section 25 Arms Act, as Ex.PW14/1.
36. PW15 is SI Hari Kishan, who is second IO in this case. He has deposed about the factum of formal arrest of accused persons vide arrest memos Ex.PW15/7, Ex.PW15/8, Ex.PW2/E, Ex.PW12/C and Ex.PW8/D and conducting their personal search and also recording their disclosure statements Ex.PW15/3 to Ex.PW15/6. He also deposed to have prepared rough site plan (Ex.PW15/2) at the instance of SI B.S. Gulia, as also about seizure of motorcycles vide memos Ex.PW2/C and Ex.PW2/D. He further deposed that relevant exhibits were got deposited in FSL through Ct. Ajay on 11.11.2011 and he having ballistic report (Ex.PW3/A) and sanction under State V/s Kuldeep & Ors. (Acquitted) Page 10 of 16 FIR No. 146/11; U/s 399/402/186/353/307 IPC & 25/27 Arms Act; P.S. Dwarka Sector23 D.O.D.: 23.12.2019 Section 39 Arms Act from Addl. DCP and complaint under Section 195 CrPC (Ex.PW4/A) from concerned ACP.
37. PW16 is ASI Chattar Singh, who was working as MHC(M) (CP) during the relevant period. He has deposed about the factum of relevant exhibited being deposited in malkhana by SI B.S. Gulia on 01.11.2011, vide entry at serial No.1987 in Register No.19, as also about deposit of relevant sealed pullanda of countrymade pistol and cartridges in FSL through Ct. Ajay Kumar vide RC No.121/21 on 11.11.2011 and receipt of FSL result alongwith sealed parcel in the malkhana on 02.01.2012.
38. Before proceeding further, it may be noted that PW HC Satish Kumar was dropped from the list of witnesses, being witness of repetitive facts, by ld. Addl. PP on behalf of State vide his statement recorded on 19.11.2014.
ARGUMENTS ADVANCED AND CASE LAW CITED
39. 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 persons 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 at the time of their apprehension and since the possession of those arms and ammunitions was in violation of relevant Notification issued by Delhi Administration, the charges framed against them, have been proved against them beyond shadow of doubt.
40. 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 State V/s Kuldeep & Ors. (Acquitted) Page 11 of 16 FIR No. 146/11; U/s 399/402/186/353/307 IPC & 25/27 Arms Act; P.S. Dwarka Sector23 D.O.D.: 23.12.2019 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 aforesaid five witnesses who were members of alleged raiding party.
41. I may be noted here that charge in respect of offence under Section 307 IPC as also for offences under Section 25/27 Arms Act were framed against accused Naveen Dogra alone. In view of the fact that said accused has already expired and proceedings against him already stood abated, there is no need to make any discussion with regard to those offences.
42. This brings me down to the offences under Section 399/402/186/353 IPC charged against accused Kuldeep, Parmod Kumar and Keshav Kumar, who alone had been facing trial as of now.
43. It is an admitted case of prosecution that there was Airport situated just near the spot. Moreover, it has also come on record that there was railway fatak of Shahbad Mohammad Pur and there was also Sethi Auto Service Station situated near the spot. However, no effort whatseover is even claimed to have been made by police officials to join any employee of said Airport or of Service Station or any public person who may be present over there, either in the raiding party or during the entire proceedings claimed to have been carried out at the spot. PW13 SI B.S. Gulia has admitted during his cross examination that there was a railway employee at railway fatak but he did not record his statement to join the investigation.
44. PW1, PW2, PW8, PW13 and PW17 who were allegedly part of the raiding team, claimed that PW13 SI B.S Gulia had requested few 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.
State V/s Kuldeep & Ors. (Acquitted) Page 12 of 16FIR No. 146/11; U/s 399/402/186/353/307 IPC & 25/27 Arms Act; P.S. Dwarka Sector23 D.O.D.: 23.12.2019 However, the said claim is nothing but mechanical excuse given by police officials in order to cover up their own lapse besides trying to fill up lacunae in the case of prosecution.
45. 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 be made to join public witnesses or to serve them notices after apprehension of accused persons in this case.
46. 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 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 shop keepers 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."
47. In a case law reported as Roop Chand v/s The State of Haryana, State V/s Kuldeep & Ors. (Acquitted) Page 13 of 16 FIR No. 146/11; U/s 399/402/186/353/307 IPC & 25/27 Arms Act; P.S. Dwarka Sector23 D.O.D.: 23.12.2019 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 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 State V/s Kuldeep & Ors. (Acquitted) Page 14 of 16 FIR No. 146/11; U/s 399/402/186/353/307 IPC & 25/27 Arms Act; P.S. Dwarka Sector23 D.O.D.: 23.12.2019 public is an after thought and is not worthy of credence. All these facts taken together make the prosecution case highly doubtful."
48. 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: "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 made to join a public witness or that they were not available. A stereotype statement of non availability 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."
49. Moreover, seal all along remained in possession of police witnesses and thus, possibility of tampering of the case property cannot be ruled out. It is relevant to note here that PW13 SI B.S. Gulia claimed that seal after use was handed over by him to PW1 Ct. Dharmender but he admitted during cross examination that no handing over memo of seal was prepared at that State V/s Kuldeep & Ors. (Acquitted) Page 15 of 16 FIR No. 146/11; U/s 399/402/186/353/307 IPC & 25/27 Arms Act; P.S. Dwarka Sector23 D.O.D.: 23.12.2019 time.
50. Apart from above, there are various contradictions appearing in the testimonies of police witnesses examined during trial. Firstly, PW1 Ct. Dharmender and PW2 HC Govind deposed that they could not recognise the accused as it was dark at that point of time. As contrary thereto, PW13 SI B.S. Gulia deposed that there was sufficient light to identify the accused persons. Secondly, the prosecution story recites that chhuris (daggers) were recovered from the possession of accused persons namely Kuldeep, Parmod Kumar and Abhimanyu but during course of trial, all the alleged recovery witnesses deposed identically that knives were recovered from said three accused persons. Thirdly, neither the secret information is shown to have been reduced into writing nor any written direction is shown to have been issued by Inspector Ranjit Dhaka for constituting the raiding party. No material has been brought on record to show that the members of raiding team had left to the spot in government vehicle i.e. gypsy. Rather, PW13 who is Incharge of raiding team, admitted during cross examination, that he did not mention kilometer raiding of gypsy in the departure entry. Fourthly, it is quite unbelievable that during the course of scuffle which would have taken place while apprehending the accused persons and in a situation where accused Naveen Dogra allegedly fired towards the police team, no injury whatsoever was caused to any of the accused persons or to any of the members of raiding party, as admitted by PW13 during cross examination. Fifthly, there is no iota of evidence placed on record to show that these accused persons were connected with each other in any manner. Sixthly, PW15, who is second IO, deposed that he did not write anything on the documents provided to him, namely, B.S. Gulia. As per prosecution case, relevant sketches of recovered pistol, cartridges and knives as also the seizure memos thereof, were prepared State V/s Kuldeep & Ors. (Acquitted) Page 16 of 16 FIR No. 146/11; U/s 399/402/186/353/307 IPC & 25/27 Arms Act; P.S. Dwarka Sector23 D.O.D.: 23.12.2019 to registration of FIR but all said documents are shown to bear the FIR number of present case. It is not explained as to how the said FIR number came on the said documents, which creates reasonable doubt about the factum of said documents having been prepared at the spot itself.
51. 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 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.
52. In the light of aforesaid discussion, Court is of the considered view that the prosecution has failed to establish the charges levelled against the accused persons namely, Kuldeep, Parmod Kumar and Keshav Kumar beyond shadow of doubt. Consequently, said accused persons 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. Digitally signed by VIDYA VIDYA PRAKASH PRAKASH Date: 2019.12.23 Announced in open Court today 05:40:23 +0530 dt. 23.12.2019 (Vidya Prakash) ASJ3 & Special Judge (Companies Act) Dwarka Courts (SW)/New Delhi State V/s Kuldeep & Ors. (Acquitted) Page 17 of 16