Delhi District Court
3. Title Of The Case : State vs Rohit Singh & Deepak Mandal on 20 February, 2013
IN THE COURT OF SHRI MANISH YADUVANSHI : ACMM0I
(CENTRAL) : TIS HAZARI COURTS, DELHI.
1. Case No. : 0091/CR
2. Unique I.D. No. : 02401R0059282009
3. Title of the Case : State Vs Rohit Singh & Deepak Mandal
FIR No. 17/2008
PS : Crime Branch
U/s 25 Arms Act
4. Date of Institution : 31.12.2008
5. Date of reserving judgment : 04.02.2013
6. Date of pronouncement : 05.02.2013
J U D G M E N T :
a) The Sl. No. of the case : 0091/CR
b) The date of commission
of offence : 03.11.2008
c) The name of complainant : SI Rajpal Singh
Anti Robbery Cell, Crime Branch
d) The name of accused :1) Rohit Singh
S/o Sh. Jai Pal Singh
R/o Ward No.5, Bagh Ranap,
Railway Station Road, Loni, Ghaziabad (UP)
2) Deepak Mandal
S/o Sh. Bhim Charan Mandal
R/o Ward No.5, Bagh Ranap,
Railway Station Road, Loni, Ghaziabad (UP)
FIR No. 17 of 2008 State Vs Rohit Singh & Deepak Mandal Page 1 of 14
e) The offence complained of : 25/54/59 Arms Act
f) The offence charged with : 25 Arms Act
g) The plea of the accused : Pleaded not guilty
h) The final order : Acquitted
i) The date of such order : 05.02.2013
j) Brief facts of the decision of the case :
1. The prosecution alleges that the accused persons were found in possession of arms & ammunition as per the detailed information recorded in rukka (Ex.PW5/C) prepared by SI Rajpal Singh (PW5).
2. A secret information was received by Ct. Sandeep Kumar (now HC/PW1) regarding presence of these two accused persons and their associate namely Sushil arriving at 03.00 PM near Electric Crematorium, Delhi and who were involved in the case of robbery within the area of PS Hauz Qazi. The motive for their assembling near electric crematorium was stated to be an intention to commit some other crime. Secret information was shared with the concerned ACP/ARC Sanjay Tyagi. Raiding party comprising of SI Rajpal Singh, HC Rajbir, HC Raj Kumar, HC Laxman Prasad, Ct. Sandeep, Ct. Surender, Ct. Anand Pal, Ct. Rajesh and Ct. Raj Kumar was prepared which raiding party reached at the spot with secret informer in a government vehicle at 02.40 PM. On the way, SI Raj Pal Singh requested three shopkeepers and three passersby to join raiding party. None agreed to join or reveal their details. FIR No. 17 of 2008 State Vs Rohit Singh & Deepak Mandal Page 2 of 14
3. A NakaBandi was done. At 03.10 PM, two persons out of whom one was wearing spectacles arrived near gate of Electric Crematorium. They were identified by the secret informer. At 03.20 PM, their associate namely Sushil also arrived. All the three accused persons were apprehended by the members of raiding party at 03.25 PM.
4. Accused Deepak Mandal was found in possession of loaded 'desi katta'/countrymade pistol of point .315 bore (Ex.P1) and its cartridge (Ex.P2).
5. From accused Rohit Singh, another countrymade pistol (Ex.P3) of 12 bore loaded with one cartridge (Ex.P4) alongwith Nokia Mobile Phone and two contact lenses were recovered.
6. From their accomplice namely Sushil, white polythene containing jewelry articles was recovered. The same is not the case property herein.
7. The police accordingly conducted investigations after registration of FIR (Ex.PW3/A) and after concluding the same, the result of investigation in the form of chargesheet was filed in the court.
8. Compliance of section 207 Cr.P.C was duly made. Copy of charge sheet was supplied to the accused persons. On 15.09.2011, both the accused FIR No. 17 of 2008 State Vs Rohit Singh & Deepak Mandal Page 3 of 14 persons were charged for commission of offence punishable U/s 25 Arms Act. Both the accused persons pleaded not guilty and claimed trial.
9. The prosecution has examined nine witnesses in totality. The members of raiding party are HC Sandeep Kumar (PW1), HC Raj Kumar (PW2) and SI Raj Pal (PW5). Other members of raiding party were not examined.
The Duty Officer is HC Jai Pal Singh (PW3). Ct. Surender (PW4) after having collected the sealed pullandas from MHC (M) from PS Crime Branch on 25.11.2008, deposited the same with FSL, Rohini.
10. Sh. Neeraj Thakur, the then DCP (Crime & Railways) proved sanction U/s 39 Arms Act (Ex.PW6/A). The ballistic expert/PW7 Sh. V.R.Anand proved his report (Ex.PW7/A) to the effect that the recovered case property are fire arms which are capable of use.
11. HC Chand Ram (PW8), the then MHC (M) PS Crime Branch received four pullandas duly sealed with the seal of 'RSS' alongwith mobile phone make 'Nokia 6600' on 03.11.2008 from HC Suresh regarding which he made his entry in register No.19 (Ex.PW8/A). On 25.11.2008, pullandas (MarkB & C) were handed over to Ct. Surender for depositing with FSL, Rohini. Pullanda (Mark A) and mobile phone was transferred to concerned officials of PS Hauz Qazi being case property therein.
FIR No. 17 of 2008 State Vs Rohit Singh & Deepak Mandal Page 4 of 14
12. I have heard the submissions of Ld. APP for State and Ld. Legal Aid Counsel, Sh. Vijay Kumar Jain for both the accused persons.
13. In the instant case, the departure entry i.e., DD No.5 which is Mark PW5/A is not proved by the DD Writer concerned. The time of incident is 03.25 PM i.e., post noon time and as admitted by the constituent members of the raiding party, there was no dearth of public persons. The fact remains that the electric crematorium could have on duty the office members of the government service/public servant who could have conveniently joined the raiding team.
There is discrepancy about the time factor which prompts this court to evaluate the evidence available strictly. The rukka (Ex.PW5/C) was sent to the PS on 03.11.2008 at 06.30 PM through Ct. Raj Kumar (now HC/PW2). His cross examination reveals that he was at the spot up to 6.30 PM. The corresponding evidence of Duty Officer/PW3 reveals that the rukka was presented to him at 7.20 PM. As per endorsement (Ex.PW3/B), the FIR was the accordingly registered. As would be revealed, the investigation was assigned to HC Suresh Kumar (PW9). The said investigation could have been assigned only after 7.20 PM and not prior to it.
14. PW9 stated on oath that the investigation was marked to him at 4.30 PM. He specifies that the Duty Officer concerned instructed him to reach near electric crematorium, Bela Road, Ring Road, Delhi. He reached there at 6.20 PM. PW9 does not clarify as to what took him more that one and half hour to reach the FIR No. 17 of 2008 State Vs Rohit Singh & Deepak Mandal Page 5 of 14 spot of occurrence although it took only 40 minutes to PW2 in reaching the PS from the spot. Surprisingly, the rukka was not dispatched till 6.30 PM. This time factor is very relevant. The defence has not shied away from grilling the relevant witness on the aspect of nonjoining of public persons even though, their presence could not be earlier procured.
15. Accordingly, there is no explanation on record as to why this omission was made. This casts doubt about sincere efforts made by the investigating officer to join independent witnesses. In "ROOP CHAND VS. STATE OF HARYANA 1990 (1) CLR 69", it was observed that such explanations are unreliable.
In case of "PREM SINGH VS. STATE" 1996 CRI. L. 3604 (DELHI) and in case of "PAWAN KUMAR VS. DLEHI ADMN" 1989 CRLJ 0127 DEL, it has been observed as under: "Kalam Singh has to admit that at the time of arrest and recovery of knife, there was a lot of rush of public at the bus stop near Subhash Bazar. According to Jagbir Singh, he did not join any public witness in the case while according to Kalan Singh, no public person was present there. It hardly stands to reason that at a place like a bus stop near Subhash Bazar, there would be no person present at a crucial time like 7:30 pm when there is a lot of rush of commuters for boarding the buses to their respective destinations. Admittedly, there is no FIR No. 17 of 2008 State Vs Rohit Singh & Deepak Mandal Page 6 of 14 impediment in believing the version of the police officials but for that the prosecution has to lay a good foundation. At least one of them should have deposed that they tried to contact the public witnesses or that they refused to join the investigation. Here is a case where no effort was made to join any public witness even though number of them were present. No plausible explanation from the side of the prosecution is forthcoming for not joining the Independent witnesses in case of serious nature like the present one. It may be that there is an apathy on the part of the general public to associate themselves with the police raids or the recoveries but that apart, at least the IO should have made an earnest effort to join the independent witnesses. No attempt in this direction appears to have been made and this, by itself, is a circumstance throwing doubt on the arrest or the recovery of the knife from the person of the accused".
16. In the case of "Hem Raj Vs State of Haryana" AIR 2005 SC 2010, it has been observed that : "The fact that no independent witness though available, was examined and not even an explanation was sought to be given for not examining such witness is a FIR No. 17 of 2008 State Vs Rohit Singh & Deepak Mandal Page 7 of 14 serious infirmity in the prosecution case. Amongst the independent witnesses one who was very much in the know of things from the beginning was not examined by the prosecution. Nonexamination of independent witness by itself may not given rise to adverse inference against the prosecution. However, when the evidence of the alleged eyewitnesses raise serious doubts on the point of their presence at the time of actual occurrence, the unexplained omission to examine the independent witness would assume significance."
17. In the case of "D.V.Shanmugham Vs State of A.P" AIR 1997 SC 26583", it has been observed as under: "It also appeared from the evidence of PW2 and PW8 that there were several other people who witnessed the occurrence and they are not the residents of that locality. If such independent witnesses were available and yet were not examined by the prosecution and only those persons who are related to the deceased were examined then in such a situation, the prosecution case has to be scrutinized with more care and caution".
18. In the case of "Pawan Kumar Vs The Delhi Administration", 1989 FIR No. 17 of 2008 State Vs Rohit Singh & Deepak Mandal Page 8 of 14 Cr.LJ 127 Delhi, in which it was observed as follows: "Kalam Singh has to admit that at the time of the arrest and recovery of the knife, there was a lot of rush of public at the bus stop near Subhash Bazar.
According to Jagbir Singh, he did not join any public witness in the case while according to Kalam Singh, no public persons was present there. It hardly stands to reason that at a place like a bus stop near Subhash Bazar, there would be no person present at a crucial time like 07.30 PM when there is a lot of rush of commuters for boarding the buses to their respective destinations. Admittedly, there is no impediment in believing the version of the police officials but for that the prosecution has to lay a good foundation. At least one of them should have deposed that they tried t contact the public witnesses or that they refused to join the investigation. Here is a case where no efforts was made to join any public witness even though number of them were present. No plausible from the side of the prosecution is forthcoming for not joining the independent witnesses in case of a serious nature like the present one. It may be that there is an apathy on the part of the general public to associate themselves with the police raids or the recoveries but that FIR No. 17 of 2008 State Vs Rohit Singh & Deepak Mandal Page 9 of 14 apart, at least the IO should have made an earnest effort to join the independent witnesses. No attempt in this direction appears to have been made and this, by itself, is a circumstance throwing doubt on the arrest or the recovery of the knife from the person of the accused".
19. In the case of "Massa Singh Vs State of Punjab" 2000 (2) CC Cases HC 11, conviction was set aside on the ground that it was obligatory on the part of investigating officer to take assistance of independent witnesses to lend authenticity to the investigation conducted by him. It was observed as under: "The recovery has been effected from a public place. The investigating officer could have taken the trouble to associate an independent witness to get the attestation of such independent witness regarding the authenticity of the investigation conducted by him. This aspect of the case has not been properly appreciated by the Court below."
20. In the case of "Chanan Singh Vs State" 1986 Crl. Rev. No.720 (P&H) 94, it was held that it was obligatory on the part of the police to join independent witnesses and the statement of official witness that witnesses refused to join investigation was rejected as an afterthought. FIR No. 17 of 2008 State Vs Rohit Singh & Deepak Mandal Page 10 of 14
21. In the cases of "Gurbel Singh Vs State of Punjab" 1991 Crl. Rev. No.504 (P&H) and "Dhanpat Vs State of Punjab" 2000 (1) CC Cases HC 52, it has been held that nonjoining of independent witnesses is fatal to the prosecution case and accused is entitled to benefit of doubt.
22. In the case of "Sahib Singh Vs State of Punjab" AIR 1997 SC 2417, it has been held as under: "Having gone through the record, we find much substance in each of the above contentions.
Before conducting a search, the concerned police officer is required to call upon some independent and respectable people of the locality to witness the search. In a given case, it may so happen that no such person is available or, even if available, is not willing to be a party to such search. It may also be that after joining the search, such persons later on turn hostile. In any of these eventualities, the evidence of the police officers who conducted the search cannot be disbelieved solely on the ground that no independent and respectable witness was examined to prove the search but if it is found - as in the present case - that no attempt was even made by the concerned police officer to join with him some persons of the locality who were admittedly FIR No. 17 of 2008 State Vs Rohit Singh & Deepak Mandal Page 11 of 14 available to witness the recovery, if would affect the weight of evidence of the Police Officer, though not its admissibility."
23. I have also pointed out that the time factor regarding the investigations is a discrepancy which goes in favour of the accused persons. In this regrd, IO/PW9 stated in his cross examination that he remained at the spot for three hours only. He had arrived there at 6.20 PM and therefore would have left the spot by 9.20 PM. Contrary to the aforestated, it is in the sworn testimony of PW5 that they had reached at the spot of occurrence by 2.40 PM where they remained present for 7 to 8 hours. During this time, the said senior most member of the raiding party submits that HC Suresh/PW9 arrived at the spot at 6.20 PM whereas Ct. Raj Kumar returned to the spot with copy of FIR and rukkas to be handed over to PW9 only at 09.00 PM.
24. During this time, SI Rajpal Singh had conducted initial investigations. In his cross examination, although he had reduced secret information in writing in DD No.5, as stated earlier, the said document is not proved. He did not record the statement of Ct. Sandeep Kumar regarding receipt of secret information. He also states that no DD entry regarding their departure was made. He did not make any attempt to call staff of the cremation centre. He did not ask any public person between the office and Sunlight Colony to join the raiding party and this fact is contrary to the rukka (Ex.PW5/C).
FIR No. 17 of 2008 State Vs Rohit Singh & Deepak Mandal Page 12 of 14
The sketches of the recovered arms are Ex.PW1/A & C. The seizure memos are Ex.PW1/B & D respectively. The seizure memo of contact lenses and mobile phone are Ex.PW1/E & PW5/B respectively. As would be revealed, these documents are prepared by SI Rajpal Singh.
25. PW9 who is the IO states in his examination in chief that particulars of FIR was written on all the pullandas and documents like site plan, seizure memos and arrest papers of the accused persons meaning thereby that the same were left blank at the time of preparation. Perusal of Ex.PW1/A and PW1/C which are sketches of the arms and ammunition reveal that there is no difference in either handwriting or the ink used thereupon.
26. IO had conducted proceedings U/s 41 Cr.P.C/102 Cr.P.C against the accused Sushil. The FIR in question is not in respect of kalandra proceedings and therefore the mentioning of the details regarding FIR and the Act violated upon on Ex.PW1/A & PW1/C has not been explained. These documents were prepared by SI Rajpal Singh/PW5. There is no possible difference between the ink used or the handwriting in the portion meant for details regarding particulars of FIR and section of law involved as well as remaining particulars of the documents. In any case, Ex.PW1/C could not have incorporated the details regarding kalandra proceedings against third accused namely Sushil as these proceedings were drawn up by PW9. The IO/PW9 had arrived at the spot at 6.20 PM whereas the FIR came to be registered only at 7.20 PM and received by the IO on the spot at about FIR No. 17 of 2008 State Vs Rohit Singh & Deepak Mandal Page 13 of 14 9.00 PM. There is no explanation as to how PW9 conducted investigations even prior to the same assigned to him.
27. In these circumstances, the case of the prosecution remains doubtful and the defence of the accused to the effect that they were implicated falsely at the police station hold some water.
28. in the present case In the result, both the accused persons are acquitted by giving them benefit of doubt. Their PB/SB, if any, are extended for further period of six months in terms of section 437A Cr.PC.
File be consigned to record room.
Announced in the open court (MANISH YADUVANSHI) on 05.02.2013 ACMM01 DELHI
It is certified that this judgment contains 14 (fourteen) pages and each page bears my signature.
(MANISH YADUVANSHI) ACMM01 DELHI FIR No. 17 of 2008 State Vs Rohit Singh & Deepak Mandal Page 14 of 14