Delhi District Court
State vs . 1. Pushpender Kumar on 10 January, 2012
IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS
JUDGEII (NORTHWEST): ROHINI COURTS: DELHI
Sessions Case No. 24/2011
Unique Case ID: 02404R0132542011
State Vs. 1. Pushpender Kumar
S/o Raj Bahadur
R/o Gali No. 7, G Block
Swaroop Nagar, Delhi.
(Convicted)
2. Mahesh Kumar
S/o Munni Lal Sahani
R/o Gali No. 8, Dutta Mandir
wali gali, Swaroop Nagar, Delhi.
(Convicted)
3. Avnish Kumar
S/o Ramashish Prasad,
R/o J62, Gali No. 2, Sanjay
Colony, Samaypur, Delhi.
(Acquitted)
FIR No. : 10/2011
Under Section : 186/353/307/34 Indian Penal Code
Police Station : Swaroop Nagar
Date of committal to Sessions Court: 19.7.2011
Judgment reserved on: 4.1.2012
Judgment pronounced on: 4.1.2012
SC No. 24/11, FIR No. 10/11, PS Swaroop Nagar, State Vs. Pushpender etc. Page 1 of 35
JUDGMENT
Brief Facts:
As per the allegations, on 28.01.2011 at 10 PM at Gali No. 15, Burari Road, Swaroop Nagar, Delhi, the accused Pushpender Kumar, Mahesh Kumar and Avnish Kumar in furtherance of their common intention obstructed Ct. Attar Singh, Ct. Rajbir and Ct. Anil Kumar, public servants in the discharge of their public functions while they were checking the vehicles and tried to stop the vehicle of the accused persons i.e. Tempo bearing No. DL 1LJ 6021 being driven by the accused Mahesh while the coaccused Pushpender and Avnish were sitting inside the vehicle. It is alleged that despite the indication, the accused Mahesh did not stop the vehicle and rather the coaccused Pushpender fired upon the police party with desi katta and assaulted them by using criminal force with an intent to prevent or deter such public servants from exercising their duties. Case of prosecution in brief:
The case of the prosecution in brief is that on 28.1.2011 Ct. Attar Singh, HC Rajbir and Ct. Anil were on duty on Beat No.2, Swaroop Nagar, Gali No. 15, Burari Road and were checking the vehicles on Burari Road and at about 8:05 PM one tempo bearing No. DL1LJ6021 came from Burari Road, Swaroop Nagar side was indicated by Ct. Attar Singh to stop the vehicle but the driver SC No. 24/11, FIR No. 10/11, PS Swaroop Nagar, State Vs. Pushpender etc. Page 2 of 35 (Mahesh) did not stop the vehicle on which the police party got suspicious and HC Rajbir stood in front of the tempo in order to stop the same but the person sitting next to the driver (Pushpender) told the driver tempo ko jaldi age barao, ase police wale bahut milenge and he thereafter fired towards HC Rajbir and Ct. Attar Singh which fire missed them and thereafter those persons got down of the tempo and tried to run away from the spot but one of them (Avnish) who was weak from one leg, could not run away and was apprehended by HC Rajbir. The boy who fired towards the police party (i.e Pushpender) was apprehended at some distance by Ct. Attar Singh and the driver of the tempo (Mahesh) was also apprehended by Ct. Anil Kumar. From the personal search of Pushpender he was found carrying a desi katta and one live cartridge. Thereafter, information was given to the Duty Officer in the Police Station and after some time HC Virender and ASI Krishan Kumar came to the spot and Ct. Attar Singh handed over the recovered articles along with the accused persons to ASI Krishan Krishan. After completing the investigations the charge sheet was filed in the court. CHARGE:
Charges under Section 186/353 read with Section 34 of Indian Penal Code and under Section 307 read with Section 34 of Indian Penal Code were settled against the accused Pushpender, SC No. 24/11, FIR No. 10/11, PS Swaroop Nagar, State Vs. Pushpender etc. Page 3 of 35 Mahesh and Avnish, to which they pleaded not guilty and claimed trial.
EVIDENCE:
In order to discharge the onus upon it, the prosecution has examined as many as nine witnesses.
PW1 HC Rohtash has been examined by way of affidavit which is Ex.PW1/1 and bearing his signatures at points A and B. He was working as duty officer and has recorded the DD No. 28A and DD No. 29A copy of which are Ex.PW1/A and Ex.PW1/B respectively. He also recorded the FIR copy of which is Ex.PW1/C and endorsement made by him on rukka is Ex.PW1/D. In his cross examination by Ld. Defence Counsel, the witness has denied the suggestion that the FIR was registered ante datedly on the instructions of the senior officers.
PW2 HC Rang Bahadur was working as MHC (M) who has proved the entry of case property in Register No. 19 vide entry No. 453 copy of which is Ex.PW2/A, entry in Register No. 21 vide entry No. RC/ 51/21/11 copy of which is Ex.PW2/B and receipt issued by FSL copy of which is Ex.PW2/C. In his cross examination by the Ld. Defence Counsel the witness has denied that he did not receive the case property from SI Devender or that he has deposed SC No. 24/11, FIR No. 10/11, PS Swaroop Nagar, State Vs. Pushpender etc. Page 4 of 35 falsely at the instance of investigating officer.
PW3 Sh. A. K. Singh, Addl DCP, North West has deposed that on 21.03.2011, he was posted as Additional DCP (NW) and working as Additional DCP I. On that day SI Devender Singh of PS Swaroop Nagar placed before him the file and a application for according a sanction for Sanction U/S 39 of the Arms Act in respect of accused Pushpender from whom a desi katta had been recovered on 28.01.2011. According to the witness, after going through the statements of the witnesses, the FSL report and the other material on record, he accorded the Sanction U/S 39 Arms Act for prosecuting the accused Pushpender, which sanction is EX PW 3/A bearing his signatures at point A. In his cross examination by Ld. Defence Counsel, the witness has denied the suggestion that he had accorded the sanction mechanically without any application of mind and on the asking of the investigating officer.
PW4 Sh. Jai Bhagwan Kaushik, ACP Jahangirpuri has deposed that on 25.03.2011 SI Devender had put up before him the file pertaining to the present case and after going through the statements of the witnesses, MLCs, FSL report, seizure memos and other documents on record and after being satisfied, he filed the complaint U/S 195 Cr. P. C. which is Ex.PW4/A bearing his signatures at point A. In his cross examination by Ld. Defence Counsel the witness has denied the suggestion that the complaint has SC No. 24/11, FIR No. 10/11, PS Swaroop Nagar, State Vs. Pushpender etc. Page 5 of 35 been filed in a mechanical manner.
PW5 Dr. N.P. Waghmare has deposed that on 11.02.2011 a sealed parcel duly sealed with the seal of KK had been received in the laboratory containing one country made pistol and one cartridge of 8 mm caliber and one 8 mm empty cartridge case.
According to the witness, the pistol was marked as F1 and cartridge was marked as A1 and empty cartridge was marked as EC1. He thereafter carried out the test fire and after examination of the same his findings were that the pistol (EX F1) was a fire arm as defined under the arms act. According to the witness, it is a country made pistol capable of loading and firing standard 8 mm ammunition. The witness has further deposed that EX 8mm cartridge marked A1 was chambered and successfully test fired through Ex pistol F1 and hence it is opined that EX pistol is in normal working order and EX A1 was live ammunition before it was test fired in the laboratory. According to the witness, the pertinent characteristic marks of country made pistol marked F1 present on the crime cartridge case marked EX EC1 where compared with test cartridge cases fired through country made pistol marked F1 under a comparison microscope. After a through examination and comparison, firing pin marks and breech face marks present on the EC1 were similar with firing pin and breech face marks present on the test cartridge cases and hence, it was opined that cartridge case marked EC1 had been fired through exhibit SC No. 24/11, FIR No. 10/11, PS Swaroop Nagar, State Vs. Pushpender etc. Page 6 of 35 country made pistol F1. The witness has proved his report is Ex.PW5/A bearing his aforesaid findings and signatures at various points mark A. This witness has not been cross examined on behalf of the accused.
PW6 Ct Attar Singh has deposed that on 28.01.2011 he was posted at Police Station Swaroop Nagar and on that day he along with HC Rajbir, Ct. Anil Kumar were on duty in beat No. 2, Swaroop Nagar, Gali No. 15, Burari Road. According to him while checking the vehicles over there at about 8:05 PM one tempo bearing No. DL1LJ6021 came from Burari road, Swaroop Nagar side. The witness has deposed that the driver of the said tempo was indicated to stop by him but he did not stop the tempo on which they got suspicious. According to the witness, thereafter HC Rajbir stood in front of the tempo in order to stop the tempo but the person sitting near driver seat told the driver that "tempo ko jaldi aage barao, ase police wale bahut milege". The witness has further deposed that the person sitting near driver side who exhorted the driver in the aforesaid manner fired towards both of them (towards Ct. Attar Singh and HC Rajbir) but they missed that fire. According to the witness, thereafter the tempo stopped and both the driver and the person who fired and another persons who was sitting in the cabin of the tempo got down and tired to escape from the spot but one of them was weak by legs and he could not run away who was apprehended SC No. 24/11, FIR No. 10/11, PS Swaroop Nagar, State Vs. Pushpender etc. Page 7 of 35 by HC Rajbir; the boy who fired towards them was apprehended at some distance by him (Ct. Attar Singh) and third boy who was the driver of the tempo was also apprehended by Ct. Anil Kumar. The witness has deposed that the boy apprehended by him was known as Pushpender; the person apprehended by HC Rajbir known as Avinish and the third person who was driver of the tempo was known as Mahesh was apprehended by Ct. Anil. The witness has deposed that the accused Pushpender was having desi katta in his right hand and on his formal search one live cartridge was recovered from his right pocket of pant. The desi katta was checked and found to contain one fired cartridge. According to the witness, thereafter he informed the duty officer in the police station and after some time HC Virender and ASI Krishan Kumar came there. The witness has deposed that he handed over the recovered katta along with the cartridges and all the accused persons to ASI Krishan Kumar after which ASI Krishan Kumar recorded his statement which is Ex.PW6/A bearing his signatures at point A. According to the witness, ASI Krishan Kumar prepared the site plan at his (Ct. Attar Singh) instance which is Ex.PW6/B and prepared the sketch of katta and two cartridges which is Ex.PW6/C and took the same into possession after converting into pullanda vide seizure memo Ex.PW6/D. Thereafter, ASI Krishan Kumar prepared the rukka and got the present FIR registered through HC Virender which is Ex.PW1/C. According to the witness, further SC No. 24/11, FIR No. 10/11, PS Swaroop Nagar, State Vs. Pushpender etc. Page 8 of 35 investigations of this case was handed over to SI Devender Kumar who came to the spot with HC Virender and thereafter SI Devender checked the tempo which was found containing 13 gas cylinders (out of 13 gas cylinders, one was commercial cylinder and 12 were domestic gas cylinders). According to the witness, thereafter SI Devender took the aforesaid tempo into possession along with cylinder and key vide seizure memo Ex.PW6/E. The witness has deposed that SI Devender also took into possession the documents of the said tempo vide seizure memo Ex.PW6/F and thereafter the accused Pushpender, Mahesh Kumar and Avinish were arrested in this case vide memo Ex.PW6/G, Ex.PW6/H and Ex.PW6/I respectively and were personally searched vide memos Ex.PW6/J, Ex.PW6/K and Ex.PW6/L respectively after which they were interrogated and they made their disclosure statements which are Ex.PW6/M, Ex.PW6/N and Ex.PW6/O respectively. The witness has identified in the court the accused persons as well as case property i.e. katta Ex.P1 and cartridges Ex.P2.
In his cross examination by Ld. Defence Counsel the witness has deposed that there is no individual ravangi at the police station when they had gone for checking duty and has voluntarily added that a combine ravangi had been made at the police station in the evening. According to the witness he did not make any individual SC No. 24/11, FIR No. 10/11, PS Swaroop Nagar, State Vs. Pushpender etc. Page 9 of 35 wapsi and has voluntarily added that the IO had made the same. He has deposed that they were on patrolling duty and there was no barricades. He states that there were no written directions of checking and has voluntarily added that it was a continuous affair connected with patrolling. Witness has denied the suggestion that the road where incident had taken place is having a heavy traffic with lot of public persons coming and going. According to him at the time of the firing no body from the public had stopped. He has denied that there was no firing incident and therefore no question of public persons stopping. According to the witness, he was the only person carrying the fire arm i.e. official pistol the other persons were without fire arm but he did not fire in return when the accused Pushpender fired at him. He has admitted that in the alleged firing no body was injured. According to the witness, the tempo where the accused persons were travelling was of green color but he cannot tell the make or model and has voluntarily added that it was a van which was opened from the back side which was a champion type of three wheeler. Witness has denied that the sitting capacity on the driver side is only of one in this three wheeler and has voluntarily added that there are two small benches on both the sides of the seat which are convertible into seats and three persons can sit on it. He has denied that three persons cannot sit on the driver seat and has voluntarily added that even four can sit. He has further deposed that SC No. 24/11, FIR No. 10/11, PS Swaroop Nagar, State Vs. Pushpender etc. Page 10 of 35 the tempo had been stopped by the accused a little towards the side and has voluntarily added that it was neither middle nor side and has stated that at that time there was no traffic and has voluntarily added that very little traffic was present on the said road. He has deposed that he drove the said tempo to police station. According to him Ct. Attar Singh had run after the accused for about 24 steps and has voluntarily added that Avinish had a problem in his leg and was apprehended first at the spot itself. Witness has deposed that he had told the IO where the Avinish was caught when the site plan was prepared. He admits that the accused Mahesh and Avinish did not have any weapon. He has denied the suggestion that all documentations were done in the police station where he signed on the directions of the investigating officer and the accused Mahesh and Avinish has been falsely implicated in the present case and have no concern with Pushpender. Witness has denied that the police had lifted accused Mahesh and Avinish from the house of Mahesh when Pushpender came there and had an altercation with Mahesh and Avinish. He has also denied that the sister of Mahesh namely Tara had made a 100 number call on which the police came at the house of Mahesh and lifted all the accused persons whom they took to police station. He has also denied the suggestion that as accused Pushpender was the BC (Bad Character) of the area, the police implicated him along with accused Mahesh and Avinish in this case. SC No. 24/11, FIR No. 10/11, PS Swaroop Nagar, State Vs. Pushpender etc. Page 11 of 35
PW7 Ct Anil Kumar has deposed that on 28.01.2011 he was posted at Police Station Swaroop Nagar and on that day he along with HC Rajbir, Ct. Attar Singh were on duty in beat No. 2, Swaroop Nagar, Gali No. 15, Burari Road. In his examinationinchief, this witness has corroborated the testimonies of the PW7 Ct. Attar Singh, the complainant in this case, in toto. He has identified in the court the accused persons as well as case property i.e. katta Ex.P1 and cartridges Ex.P2.
In his cross examination by Ld. Defence Counsel, this witness has deposed that there is no individual ravangi at the police station when they had gone for checking duty and has voluntarily added that a combine ravangi had been made at the police station in the evening. He has deposed that he did not make any individual wapsi and has voluntarily added that the IO had made the same. He has denied that the road where incident had taken place is having a heavy traffic with lot of public persons coming and going. According to him at the time of the firing no body from the public had stopped. He has denied that there was no firing incident and therefore no question of public persons stopping. According to him the tempo in which the accused persons were traveling was of green color but he is unable to tell the make and has voluntarily added that it was of a DVAN type. He has deposed that the tempo had been stopped by the accused in the middle of the road. According to him SC No. 24/11, FIR No. 10/11, PS Swaroop Nagar, State Vs. Pushpender etc. Page 12 of 35 the tempo was seized at the spot itself. He has deposed that the accused were interrogated while standing at the spot of the incident itself. He has denied the suggestion that all documentation were done in the police station where he signed on the directions of the investigating officer or that the accused Mahesh and Avinish has been falsely implicated in the present case and have no concern with Pushpender. He has further denied that as accused Pushpender was the BC of the area due to which police implicated him along with accused Mahesh and Avinish in the present case.
PW8 ASI Krishan has deposed that on 28.01.2011 h he was posted at Police Station Swaroop Nagar and on the receipt of DD No. 28 A he along with Ct. Virender reached at Swaroop Nagar, Gali No. 15, Burari road where HC Rajbir, Ct. Attar Singh and Const. Anil met them. According to him Ct. Attar Singh handed over the recovered katta along with the cartridges and all the accused persons to him. He recorded statement of Ct. Attar Singh which is Ex.PW6/A and prepared the site plan at the instance of Ct. Attar Singh which is Ex.PW6/B. He thereafter prepared the sketch of katta and two cartridges which is Ex.PW6/C and took into possesion vide memo Ex.PW6/D. According to him, he also prepared the rukka Ex.PW8/A and got the case registered through HC Virender which copy is Ex.PW1/C. The witness has deposed that thereafter the further investigations of this case was handed over to SI Devender SC No. 24/11, FIR No. 10/11, PS Swaroop Nagar, State Vs. Pushpender etc. Page 13 of 35 Kumar who checked the tempo which found to contain 13 gas cylinders (out of 13 gas cylinders, one was commercial cylinder and 12 were domestic gas cylinder). According to the witness, he handed over the accused persons, the case property and the documents to SI Devender who took the aforesaid tempo into possession along with cylinder and key vide seizure memo Ex.PW6/E. The witness has deposed that thereafter SI Devender took into possession the documents of the said tempo vide seizure memo Ex.PW6/F and arrested the accused Pushpender, Mahesh Kumar and Avinish.
In his cross examination by Ld. Defence Counsel, the witness has deposed that he reached at the spot at about 8.35 pm. He does not remember whether the signature of accused were taken on the seizure memo of documents of the tempo. He did not make any departure entry at the time of leaving the police station. He admits that he had named the spot in the site plan Ex.PW6/B but the site plan does not show place of incident is not mentioned anywhere. According to him the accused were interrogated while standing near the vehicle at the spot of the incident itself and all the writing work was done while putting the papers on motorcycle. He has deposed that there were electricity poles on the road. He has denied that all documentations were done in the police station where he signed on the directions of the investigating officer and the accused Mahesh SC No. 24/11, FIR No. 10/11, PS Swaroop Nagar, State Vs. Pushpender etc. Page 14 of 35 and Avinish has been falsely implicated in the present case and have no concern with Pushpender. He admits that in the site plan Ex.PW6/B no point has been shown where accused Avinish was apprehended. He has denied that the police had lifted accused Mahesh and Avinish from the house of Mahesh when Pushpender came there and had altercation with Mahesh and Avinish or that the sister of Mahesh namely Tara had made a 100 number call on which the police came at the house of Mahesh and lifted all the accused persons and took them to the police station. The witness has also denied that the vehicle was brought from the house of Avnish to falsely implicate him in this case. He has also denied that as the accused Pushpender was the BC of the area due to which police implicate him along with accused Mahesh and Avinish in the present case.
PW9 SI Devender Kumar has deposed that on 28.01.2011 he was posted at Police Station Swaroop Nagar when further investigations of this case was handed over to him after which he along with HC Virender came to the spot. According to him ASI Krishan Kumar, Ct. Attar Singh, Ct. Anil and HC Rajbir were already present at the spot. He has deposed that the accused persons, the documents and the sealed parcels containing Katta and cartridges were handed over to him after which he checked the tempo and found to contain 13 gas cylinders (out of 13 gas cylinders, one was SC No. 24/11, FIR No. 10/11, PS Swaroop Nagar, State Vs. Pushpender etc. Page 15 of 35 commercial cylinder and 12 were domestic gas cylinder) . He took the aforesaid tempo into possession along with cylinder and key vide seizure memo Ex.PW6/E and also took into possession the documents of the said tempo vide seizure memo Ex.PW6/F. According to him the accused Pushpender, Mahesh Kumar and Avinish were arrested in this case vide memos Ex.PW6/G, Ex.PW6/H and Ex.PW6/I respectivelyand were personally searched vide memos Ex.PW6/J, Ex.PW6/K and Ex.PW6/L respectively and after detailed interrogation they made their disclosure statements which are Ex.PW6/M, Ex.PW6/N and Ex.PW6/O respectively. According to him on 11.02.11 he took the katta and cartridges to FSL, Rohini and got deposited the same and thereafter, he collected the result from Ballistics Division, FSL, Rohini Vide report Ex.PW5/A. The witness has correctly identified the accused persons as well as the case property in the court.
In his cross examination by Ld. defence counsel, the witness has deposed that he reached the spot at around 11.15 pm. He has also deposed that he had not taken the signature of accused on the seizure memo of vehicle and has voluntarily added that since the accused had already been apprehended at the spot, he did not remember to take their signatures on the seizure memo. According to the witness, when he reached the spot there were no public persons SC No. 24/11, FIR No. 10/11, PS Swaroop Nagar, State Vs. Pushpender etc. Page 16 of 35 and on the basis of the copy of the affidavit present in the vehicle he came to know that the vehicle belongs to Avnish. The witness has deposed that he did not meet the person who had sold the vehicle to Avnish nor he made any independent investigation with regard to the ownership of the said vehicle. According to the witness, the accused were interrogated at the spot itself i.e., on the road of gali No. 15, Burari Swaroop Nagar Road. He remained at the spot for about one hour that is till around 12 midnight. The witness has denied the suggestion that all documentation were done in the police station where he signed on the directions of the investigating officer and the accused Mahesh and Avinish has been falsely implicated in the present case and have no concern with Pushpender. He admits that in the site plan Ex.PW6/B no point has been shown where accused Avinish was apprehended. He has denied that police had lifted accused Mahesh and Avinish from the house of Mahesh when Pushpender came there and had altercation with Mahesh and Avinish. He has also denied that the sister of Mahesh namely Tara had made a 100 number call on which the police came at the house of Mahesh and lifted all the accused persons whom they took to the police station.
Statement of Accused and Defence Evidence:
After completing the prosecution evidence, statements of the accused persons were recorded under Section 313 Code of SC No. 24/11, FIR No. 10/11, PS Swaroop Nagar, State Vs. Pushpender etc. Page 17 of 35 Criminal Procedure in which all the incriminating evidence / material was put to them which they have denied. According to the accused they were lifted by the police from the house of accused Mahesh as they had some altercation among themselves after which Mahesh's sister Tara had made a call at number 100 due to which police came there and brought all of them to police station Swaroop Nagar. According to the accused Pushpender earlier he was declared a bad character (BC) of the area and that is why he has been falsely implicated in this case along with his coaccused. They have stated that they have nothing to do with the alleged incident and nothing was recovered at their instance or from their possession and they are innocent. The accused Avnish has examined himself as DW1 in his defence wherein he has tendered his medically handicapped certificate issued from the Hindu Rao Hospital copy of which is Ex.DW1/A. FINDINGS:
I have heard the arguments advanced before me by the Ld. Addl. PP for the State and the Ld. Defence Counsel. I have also considered the testimonies of various witnesses examined by the prosecution. I have also considered the written memorandum of arguments filed on behalf of the accused and my findings are as under:
SC No. 24/11, FIR No. 10/11, PS Swaroop Nagar, State Vs. Pushpender etc. Page 18 of 35 Identity of the Accused:
All the three accused have been apprehended at the spot of the incident itself and have been duly named in the FIR. They have also been identified by PW6 Ct. Attar Singh and PW7 Ct. Anil, in the court. The accused Pushpender has been identified to be the boy who had fired towards Ct. Attar Singh and HC Rajbir Singh and had been apprehended by Ct. Attar Singh. The accused Avnish who is handicapped suffering from polio had been apprehended by HC Rajbir and the accused Mahesh who was driving the tempo was apprehended by PW7 Ct. Anil. This being the background, I hold that the identity of all three accused stand established. Role of the Accused:
As per the case of the prosecution, on 28.01.2011 while Ct. Attar Singh, HC Rajbir and Ct. Anil were at duty on Beat No.2, Swaroop Nagar, Gali No. 15, Burari Road and were checking the vehicles over there, at about 8:05 PM one tempo bearing No. DL1LJ6021 came from Burari Road, Swaroop Nagar side and the driver of the tempo (accused Mahesh) was directed by Ct. Attar Singh to stop the tempo who did not stop the vehicle and on getting suspicious, HC Rajbir stood in front of the tempo in order to stop the same but the person sitting next to the driver (accused Pushpender) exhorted to the driver saying "tempo ko jaldi age barao, ase police SC No. 24/11, FIR No. 10/11, PS Swaroop Nagar, State Vs. Pushpender etc. Page 19 of 35 wale bahut milenge" after which the person sitting next to the driver (i.e. accused Pushpender) fired towards HC Rajbir and Ct. Attar Singh which fire missed them and thereafter all three persons got down of the tempo and tried to run away from the spot but one of them (accused Avnish) who was weak from one leg, could not run away and was apprehended by HC Rajbir, the boy who fired towards the police party (accused Pushpender) was apprehended at some distance by Ct. Attar Singh and the driver of the tempo (accused Mahesh) was apprehended by Ct. Anil Kumar, at the spot itself.
The evidence on record comprises the oral testimonies of complainant PW6 Ct. Attar Singh and also PW7 Ct. Anil Kumar, who have both deposed in toto. The apprehension of all the three accused, their personal search and the document prepared pertaining to the recovery of the katta, have been proved by the police witnesses.
The Ld. Defence Counsel has vehemently argued that the story put forward by the prosecution is not plausible and trustworthy in view of the fact that all the three accused before this court are young boys in the twenties out of which the accused Avnish is handicapped suffering from polio. It is further argued by Ld. Defence Counsel that the place of incident is the heavy motorable road on which large number of vehicles are plying for almost 24 hours and it is not possible that firing incident having taken place, SC No. 24/11, FIR No. 10/11, PS Swaroop Nagar, State Vs. Pushpender etc. Page 20 of 35 public persons would have noticed the same or collected at the spot. He submits that under the given circumstances, nonjoining of any public witness, particularly at the time of the search of the accused and recovery of the country made pistol from the accused Pushpender, makes the story of the prosecution doubtful. Ld. Defence Counsel has further argued that Special Report was received by Ld. MM on 1.2.2011 at 10 AM whereas the date of occurrence is 28.1.2011 and there is no explanation is forthcoming for the delay of three days benefit of which should be given to the accused persons.
Addl. PP for the State on the other hand has submitted that there is no reason to disbelieve the testimonies of PW6 Ct. Attar Singh and PW7 Ct. Anil in so far as the incident of firing is concerned, as there are no allegations with regard to any kind of previous animosity between the complainant and the accused to implicate them. He has submitted that nonjoining of the public witnesses after the apprehension of the accused, would not be fatal to the case of the prosecution in as much as the incident took place within minutes and the fact that the accused Puhspender is the BC of the areas due to which reason the public persons of the area are slow to intervene.
I have considered the rival contentions. Firstly at the very outset I may observe that there has been an unexplained delay with regard to sending of Special Report to the Ld. Magistrate and SC No. 24/11, FIR No. 10/11, PS Swaroop Nagar, State Vs. Pushpender etc. Page 21 of 35 the possibility of the FIR being antedated, particularly keeping in view the antecedents of accused Pushpender who is the BC of the area, cannot be ruled out.
Secondly, the area where the incident took place is having heavy traffic round the clock the time of incident being 8 PM which is not too late and it is impossible that the firing incident having taken placed between the police party and the accused, no public person or passerby's would have stopped at the spot. Even otherwise, having apprehended the accused, there was sufficient opportunity to the police officials to have stopped the public persons and joined them in the proceedings, which did not happen.
Thirdly, this court has observed that the accused Avnish is physically challenged, his foot being infected from polio and therefore under these circumstances it is not possible that he would have in any case been a party to any alleged attack on the police officials who were on duty at the relevant time. Even otherwise the allegations of exhortation are upon Pushpender and not Avnish.
Fourthly in so far as the accused Avnish Kumar is concerned, it is the admitted case of the prosecution and also of the witnesses that he was sitting at back in the cabin and therefore under these circumstances the noncompliance of the directions of the public servants, if any, are by the accused Mahesh Kumar and Pushpender Kumar and not by the accused Avnish Kumar who has SC No. 24/11, FIR No. 10/11, PS Swaroop Nagar, State Vs. Pushpender etc. Page 22 of 35 no concern with the same.
Fifthly, it is evident from the testimony of PW6 Ct. Attar Singh and PW7 Ct. Anil that the accused Pushpender who was sitting next to the accused Mahesh who was driving the tempo told Mahesh to move on by exhorting the words "tempo ko jaldi aage barao, ase police wale bahut milenge" and thereafter despite indication the accused Mahesh did not stop the tempo.
Sixthly it is evident that no incriminating articles had been recovered from the tempo (except the gas cylinders) and therefore no explanation is forthcoming as to why Pushpender would have asked Mahesh to drive on and no stop the tempo despite indication.
Seventhly it is evident that when the exhortation was allegedly given the tempo driven by the accused was in motion and there was heavy traffic on the road, it is impossible that the police officials who were on the road could have been in a position to hear what the accused Pushpender had said while sitting inside the tempo on the seat next to the driver. Even otherwise, believing the testimonies of PW6 Ct. Attar Singh and PW7 Ct. Anil and the allegations that the accused Pushpender did exhorted and accused Mahesh did not stop the tempo, it was only a case of disobedience and noncompliance. Where then was the reason for accused Pushpender to have taken out the country made pistol and fired at Ct. SC No. 24/11, FIR No. 10/11, PS Swaroop Nagar, State Vs. Pushpender etc. Page 23 of 35 Attar Singh and HC Rajbir which fire was allegedly missed.
Eighthly it is also evident from the cross examination of PW6 Ct. Attar Singh that he was in possession of the official pistol and when Pushpender had fired upon them, he did not return any fire, a fact has been admitted by Ct. Attar Singh himself. Had this been so that Pushpender would have fired, I am sure that there would have been a return fire or at least an indication thereof which surprisingly did not happen.
Ninethly, it is further evident from the site plan that though the electric pole to have been shown but the source of light has not been shown anywhere and there is nothing to show that there was sufficient light in the area and in which particular directions the firing had been done. Simply to say that firing had been done in the directions of the police party, would not be sufficient. I may observe that no person had been hit by any of the shot so allegedly fired.
Lastly it is an admitted case that no public witnesses have been cited by the prosecution to show their presence at the spot. However, what is more surprising is that even at the time when the country made pistol allegedly recovered from Pushpender was seized after converting into a pullanda, no attempts were made to join public witnesses which could have been done thereby raising a suspicion on the recovery of the alleged weapon from the possession of the accused Pushpender.
SC No. 24/11, FIR No. 10/11, PS Swaroop Nagar, State Vs. Pushpender etc. Page 24 of 35
The Hon'ble Apex Court under similar circumstances in the case of Hazara Singh & Ors. Vs. State of Punjab and Bhajan Sinigh & Ors. Vs. State of Punjab reported in (1971) 1 SCC 529 equivalent citations (1971) SCC (Criminal) 237, has held that the accused cannot be held guilty either under Section 307 Indian Penal Code or under Arms Act. Applying the above settled principles of law to the facts of present case, I hereby hold that in so far as the charges under Section 307 Indian Penal Code are concerned the accused Mahesh Kumar, Pushpender and Avnish Kumar are liable to be acquitted of the same and at the most they would be liable for the offence under Section 186 read with Section 353 Indian Penal Code. Defence of the Accused:
As per the defence version given by the accused, they have been lifted from the house of the accused Mahesh Kumar where Mahesh had some altercation with Avnish and it was Tara sister of Mahesh who made a call at 100 number after which the police came to the spot and took them to the police station and implicated them in this case. In this regard I may observe that Tara who was the most material witness, has not been examined and therefore the version given by the accused cannot be accepted and the possibility of its being an after thought cannot be ruled out.
SC No. 24/11, FIR No. 10/11, PS Swaroop Nagar, State Vs. Pushpender etc. Page 25 of 35 FINAL CONCLUSION:
In the case of Sharad Birdhichand Sarda Vs. State of Maharastra, AIR 1984 SC 1622, the Apex Court has laid down the tests which are prerequisites before conviction should be recorded, which are as under:
1. The circumstances from which the conclusion of guilt is to be drawn should be fully established.
The circumstances concerned 'must or should' and not 'may be' established;
2. The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;
3. The circumstances should be of conclusive nature and tendency;
4. They should exclude every possible hypothesis except the one to be proved; and
5. There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
SC No. 24/11, FIR No. 10/11, PS Swaroop Nagar, State Vs. Pushpender etc. Page 26 of 35 Applying the above principles of law to the facts of present case, it is evident that the investigations conducted including the documents prepared in the present case have been substantially proved by the police witnesses including the investigating officer. The identity of the accused stand proved and established. It stands proved that when Ct. Attar Singh, Ct. Rajbir and Ct. Anil Kumar all public servants in the discharge of their public functions were checking the vehicles and tried to stop the vehicle of the accused persons i.e. tempo bearing No. DL 1LJ 6021, the accused did not stop the vehicle and after getting down from the tempo started running from the spot but were overpowered by the police officials.
The prosecution has proved the identity of the accused, the manner in which the offence regarding non compliance of lawful directions of a public servant is concerned has been committed; the place of commission of the offence; the investigation including the documents prepared etc. There is nothing which could shatter the veracity of the prosecution witnesses or falsify the claim of the prosecution. All the prosecution witnesses have materially supported the prosecution case and the testimonies of the prosecution witnesses do not suffer from any infirmity, inconsistency or contradiction and are consistent and corroborative in so far as the accused Pushpender and Mahesh Kumar are concerned. The evidence of the prosecution witnesses is natural and trustworthy and corroborated by SC No. 24/11, FIR No. 10/11, PS Swaroop Nagar, State Vs. Pushpender etc. Page 27 of 35 circumstantial evidence and the witness of the prosecution have been able to built up a continuous link.
Further, in so far as the accused Pushpender is concerned the incident of firing by him upon the police party does not stands proved beyond reasonable doubt. Also, the exhortation by the accused Pushpender to accused Mahesh also does not stands established and proved beyond reasonable doubt. However, the non compliance of the lawful directions of public servants by the accused Pushpender and Mahesh stands established. Hence, I hereby hold that the prosecution has not been able to prove and substantiate the charges under Section 307 Indian Penal Code against the accused Mahesh Kumar and Pushpender Kumar who are hereby acquitted of the same. Further, the accused Pushpender is also acquitted of the charges under Section 25/27/54/59 Arms Act. However, both the accused Mahesh Kumar and Pushpender are hereby held guilty for the offence under Section 186 read with Section 353 Indian Penal Code and accordingly convicted.
In so far as the accused Avnish Kumar concerned, it stands established that he is physically challenged, his foot being infected from polio and therefore under these circumstances it is not possible that he would have in any case been a party to any alleged attack on the police officials who were on duty at the relevant time. Therefore, I hereby hold that the prosecution has not been able to SC No. 24/11, FIR No. 10/11, PS Swaroop Nagar, State Vs. Pushpender etc. Page 28 of 35 prove and substantiate the charges under Section 186/307/353/34 Indian penal Code against the accused Avnish Kumar who is acquitted of the same.
Be listed for arguments on sentence qua the accused Mahesh Kumar and Pushpender Kumar on 10.1.2012.
Announced in the open court (Dr. KAMINI LAU) Dated: 4.1.2012 ASJ (NW)II: ROHINI SC No. 24/11, FIR No. 10/11, PS Swaroop Nagar, State Vs. Pushpender etc. Page 29 of 35 IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS JUDGEII (NORTHWEST): ROHINI COURTS: DELHI Sessions Case No. 24/2011 Unique Case ID: 02404R0132542011 State Vs. 1. Pushpender Kumar S/o Raj Bahadur R/o Gali No. 7, G Block Swaroop Nagar, Delhi. (Convicted) 2. Mahesh Kumar S/o Munni Lal Sahani R/o Gali No. 8, Dutta Mandir, wali gali, Swaroop Nagar, Delhi. (Convicted) 3. Avnish Kumar S/o Ramashish Prasad, R/o J62, Gali No. 2, Sanjay, Colony, Samaypur, Delhi. (Acquitted) FIR No.: 10/2011 Under Section: 186/353/307/34 Indian Penal Code Police Station: Swaroop Nagar SC No. 24/11, FIR No. 10/11, PS Swaroop Nagar, State Vs. Pushpender etc. Page 30 of 35 Date of conviction: 4.1.2012 Arguments heard on: 10.1.2012 Date of sentence: 10.1.2012 APPEARANCE: Present: Sh. Taufique Ahmed, Addl. Public Prosecutor for the State.
Both the convicts Pushpender and Mahesh in judicial custody with Amicus Curiae Sh. Rajneesh Antil Advocate.
ORDER ON SENTENCE:
Vide my detailed judgment dated 4.1.2012 the accused Mahesh Kumar, Pushpender Kumar and Avnish Kumar have been acquitted of the charge under Section 307 Indian Penal Code. Further, the accused Pushpender has been acquitted of the charges under Sections 25/27/54/59 Arms Act and the accused Avnish Kumar has also been acquitted of the charge under Section 186/353 Indian Penal Code. However, the accused Mahesh Kumar and Pushpender have been held guilty for the offence under Section 186 read with Section 353 Indian Penal Code.
As per the allegations, on 28.01.2011 at 10 PM at Gali No. 15, Burari Road, Swaroop Nagar, Delhi, the accused Pushpender SC No. 24/11, FIR No. 10/11, PS Swaroop Nagar, State Vs. Pushpender etc. Page 31 of 35 Kumar, Mahesh Kumar and Avnish Kumar in furtherance of their common intention obstructed Ct. Attar Singh, Ct. Rajbir and Ct. Anil Kumar, public servants in the discharge of their public functions while they were checking the vehicles and tried to stop the vehicle of the accused persons i.e. Tempo bearing No. DL 1LJ 6021 being driven by the accused Mahesh while the coaccused Pushpender and Avnish were sitting inside the vehicle. It is alleged that despite the indication, the accused Mahesh did not stop the vehicle and rather the coaccused Pushpender fired upon the police party with desi katta and assaulted them by using criminal force with an intent to prevent or deter such public servants from exercising their duties.
However, on the basis of the testimonies of the various witnesses examined by the prosecution including the complainant Ct. Attar Singh this Court has acquitted the accused Mahesh Kumar, Pushpender Kumar and Avnish Kumar of the charge under Section 307 Indian Penal Code. Further, the accused Pushpender has been acquitted of the charges under Sections 25/27/54/59 Arms Act and the accused Avnish Kumar has also been acquitted of the charge under Section 186/353 Indian Penal Code. However, the accused Mahesh Kumar and Pushpender have been held guilty for the offence under Section 186 read with Section 353 Indian Penal Code for which they have been accordingly convicted.
I have heard arguments on the point of sentence. The SC No. 24/11, FIR No. 10/11, PS Swaroop Nagar, State Vs. Pushpender etc. Page 32 of 35 convict Pushpender a young boy of 22 years is a Baildar by profession and has a family comprising of aged widow mother who is handicapped, three brothers and two married sisters. The convict is totally illiterate and has already remained in Judicial Custody for about 3 months & 20 days. He is involved in four other cases details of which are as under:
1.FIR No. 123/08, Police Station Swaroop Nagar, under Section 457/ 380/ 411/ 34 IPC.
2.FIR No. 102/08, Police Station Swaroop Nagar, under Section 457/ 380/ 411/ 34 IPC.
3.FIR No. 143/09, Police Station Swaroop Nagar, under Section 458/ 380/ 411/ 34 IPC & 27/54/59 of Arms Act.
4.FIR No. 156/11, Police Station S.P. Badli, under Section 33 Delhi Excise Act.
The convict Mahesh Kumar is also a young boy of 22 years of age having a family comprising of aged widow mother, three brothers and two sisters. He is totally illiterate and is a labour by profession. The convict Mahesh Kumar is not involved in any other case and is a first time offender. He has already remained in judicial custody for about 6 months & 25 days.
Ld. Amicus Curiae appearing on behalf of the convicts has vehemently argued that both the convicts are young boys and are the helping hands of their families. He submits that the convict SC No. 24/11, FIR No. 10/11, PS Swaroop Nagar, State Vs. Pushpender etc. Page 33 of 35 Mahesh Kumar is a first time offender and has no criminal background. He requests that keeping in view the young age and family background of the convicts, a lenient view be taken against him. The Ld. Addl. PP for the State on the other hand has prayed that a strict punishment be awarded to the convicts keeping in view the nature of allegations involved. He has pointed out that the convict Pushpender has already been convicted by this Court in case bearing FIR No. 143/09, Police Station Swaroop Nagar, under Section 458/ 380/ 411/ 34 IPC & 27/54/59 of Arms Act.
I have considered the rival contentions. The convict Mahesh Kumar has no history of any previous involvement and is a first time offender. Both the convicts are young boys and any harsh view taken by this court at this stage would be detrimental not only to the convicts but also to their family members. In view of the above, a lenient view is taken against both the convicts and I award the following sentences to them:
The convict Pushpender is hereby sentenced to Rigorous Imprisonment for the period already undergone by him and fine to the tune of Rs.5,000/ for the offence under Section 186 read with Section 353 Indian Penal Code. In default of payment of fine the convict shall undergo simple Imprisonment for a period of 30 days.
The convict Mahesh Kumar is also sentenced to Rigorous Imprisonment for the period already undergone by him SC No. 24/11, FIR No. 10/11, PS Swaroop Nagar, State Vs. Pushpender etc. Page 34 of 35 and fine to the tune of Rs.5,000/ for the offence under Section 186 read with Section 353 Indian Penal Code. In default of payment of fine the convict shall undergo simple Imprisonment for a period of 30 days.
Benefit of section 428 Cr.P.C. shall be given to both the convicts for the period already undergone by them during the trial, as per rules.
The convicts are informed that they have a right to prefer an appeal against this judgment. They have been apprised that in case they cannot afford to engage an advocate, they can approach the Legal Aid cell, functioning in Tihar Jail or write to the Secretary, Delhi High Court Legal Services Committee, 34-37, Lawyers Chamber Block, High Court of Delhi, New Delhi.
One copy of the judgment and order on sentence be given to the convicts free of costs and one of order on sentence be attached with their jail warrants.
File be consigned to Record Room.
Announced in the open court (Dr. KAMINI LAU)
Dated: 10.1.2012 ASJ (NW)-II: ROHINI
SC No. 24/11, FIR No. 10/11, PS Swaroop Nagar, State Vs. Pushpender etc. Page 35 of 35