Delhi District Court
) Potassium Nitrate vs Raj Kumar on 13 November, 2007
-:1:-
IN THE COURT OF SH. NARINDER KUMAR
ADDL. SESSIONS JUDGE FAST TRACK COURTS
ROHINI DELHI
SC No. 77 dated 30/01/2006; Old No.50/99
State
Versus
1. Satender Pal Singh
Son of Sardar Surjit Singh
R/o 6/55, WEA, Karol Bagh,
New Delhi.
2. Gur Sewak @ Babla
S/o Sardar Teja Singh
R/o House No. 280,
Dushmesh Nagar, Tehsil Jagraon,
Distt. Ludhiana, Punjab.
3. Rajiv Kohli
S/o Sh. Ved Prakash,
R/o House No.F-43,
West Patel Nagar, Delhi
4. Gurcharan Singh
S/o Sh. Gurnam Singh
R/o Village Gakkarwal,
Tehsil Dhuri, Distt. Sangrur,
Punjab.
5. Raj Kumar
S/o Sh. Dheru Ram
R/o Village Dheru
Tehsil Patiala, Punjab.
6. Mohkam Singh
S/o Sh. Dalip Singh
R/o H.No. 16, Cheema Park,
Near Model Gram Station,
Ludhiana, Punjab.
-:2:-
7. Amarjeet Singh
S/o Sh. Hardeep Singh,
R/o Village Sohal,
Tehsil & District Gurdaspur,
Punjab.
8. Naim Uila (since deceased)
son of Ahmad Hussain
FIR No. 545/1998
PS Punjabi Bagh
U/s. 121, 121-A, 122, 123, 120-b, 472, 474 IPC
Section 25, 54, 59 Arms Act, and Section 4 & 5
of Explosive Substance Act.
JUDGMENT
First the Facts
1. Case pertains to the year 1998. Charges levelled against the accused persons are serious. These include charge of conspiracy to wage war against the Government of India.
Raj Kumar and Gurcharan Singh accused have been facing trial for offences under Section 25 of the Arms Act and 4 and 5 of Explosive Substances Act on the allegations that on 09/07/1998 at about 04:30 p.m. at entry gate, Transport Centre, Punjabi Bagh, both were found in possession of unauthorised arms and ammunition in -:3:- contravention of provisions of Arms Act in Truck No. HR-29-B- 8520. They were also found in possession of explosive substances under suspicious circumstances, with intent to cause explosions in India, likely to endanger life or property in India.
They and their co-accused have been facing trial for offences under Section 120-B IPC, 121, 122 & 123 IPC read with Section 120-B IPC and 121-A IPC, for having entered into conspiracy to wage war against the government of India and for that purpose to have accumulated fire arms, ammunition and explosive substance like RDX.
Case of prosecution is that in the month of June/July, 1998, Inspector Ishwar Singh, while posted as Inspector in Anti-Extortion Cell, Crime Branch, R.K. Puram, Sector-18, Delhi, received information that some Punjab based militants were behind recent bomb blasts in Delhi and same group was planning once again to strike during the days of Independence Day celebrations. The Inspector shared the information with senior officers and it developed in the course of information that Rajiv Kohli accused resident of West Patel Nagar, was in liaison with some militants already in Tihar Jail. DCP(Crime) deputed Inspector Ishwar Singh to develop the -:4:- information further.
Inspector Ishwar Singh deployed some secret informers to pursue the aforesaid information. On 09.07.98 at about 12.15 p.m, one of the secret informer informed Inspector Ishwar Singh at the office of Crime Branch that on that day at about 3 p.m, militants of Punjab would bring truck bearing No. HR-29-V 8520 near Transport Nagar, Punjabi Bagh, and that explosive material was going to be handed over to Bombay based associates. Inspector Ishwar Singh discussed the aforesaid information with senior officers and it was decided that a raid be conducted. Accordingly, raiding party consisting of Inspector Ishwar Singh, Inspector Samay Singh, Inspector Rajinder Kumar, SI Arvind Kumar, SI Jagdish, SI Ramesh Kumar, ASI(Driver) Jagdish, HC Dilbagh Singh and others was constituted and all the members were briefed about information.
The aforesaid team boarded two government vehicles and a private Maruti car and reached Transport Nagar, Punjabi Bagh. On reaching Transport Nagar, Inspector Ishwar Singh made efforts to join persons from the public but none agreed to join. Ultimately, at about 2.15 p.m, the entire team was sub-divided into three teams, each -:5:- headed by one Inspector. Inspector Ishwar Singh headed team "Y" and stationed near main gate of Transport Nagar. Inspector Samay Singh was In-charge of team stationed on ring road leading to Punjabi Bagh.
Inspector Rajinder Singh was In-charge of team "Z" stationed about 100 yards away from main gate of Transport Nagar, towards east side. At about 3 p.m., Inspector Samay Singh saw aforesaid truck and accordingly informed the other two teams. At the same time, the Inspector started chasing the truck. The truck was intercepted near main gate of Transport Nagar. The aforesaid truck was found being driven by Gurcharan Singh accused while Raj Kumar accused, was found sitting by the side of Gurcharan Singh accused. Both of them were overpowered and their personal search was conducted.
On personal search of Raj Kumar accused, Inspector Ishwar Singh recovered one Chinese make English pistol of .33 bore. On unloading the pistol, magazine was found to contain 10 live cartridges. Rough sketch of the pistol, the magazine and live cartridges was prepared. These items were turned into a parcel and sealed.
During interrogation, Raj Kumar accused -:6:- disclosed that more explosive material was inside the stepney of the aforesaid truck whereupon at his pointing out, Inspector Ishwar Singh and his staff removed the stepney from the truck. It did not contain any tube. On opening the stepney, some explosive material covered with torn pieces of a tube was found lying in the stepney. The torn pieces were removed from the explosive material whereupon a brown colour military bag pouch containing AK47 rifle, three magazines and 100 live cartridges were recovered. Inspector Ishwar Singh picked up 10 live cartridges from 100 live cartridges to serve as samples. These 10 live cartridges and remaining 90 live cartridges were turned into a parcel and sealed. AK47 rifle, three magazines and 10 live sample cartridges were also turned into parcels and sealed.
Further search of stepney led to recovery of .34 Chinese pistol with 5 magazines and 130 live cartridges. Out of these live cartridges, 10 cartridges were picked up to serve as samples. These were turned into a parcel and sealed. Remaining 120 live cartridges were also turned into a parcel and sealed.
Eight hand grenades and 10 fuse cords of hand grenades were recovered from the stepney. The hand -:7:- grenades were turned into a parcel whereas 10 fuse cords were turned into a separate parcel and these parcels were sealed . Rough sketch of one hand grenade and one fuse was prepared. Four ABCD Timer devices and four batteries were recovered from stepney. These were turned into two separate parcels which were sealed . From the stepney, five detonators (Electric) and five liquid detonators were recovered. These were turned into two separate parcels and were sealed with the seal and the parcels were numbered. Rough sketch of one of the detonators was prepared. Two pencil bombs were recovered from a box found lying in stepney. Sketch was prepared in respect of one of the pencil bombs, one fuse cord and one hand grenade. Loose electric wires were also recovered from stepney, turned into a parcel and sealed.
Further case of prosecution is that RDX explosive material weighing 18 Kgs alongwith torn polythenes was also recovered from stepney. 500 gms of RDX explosive material was separated to serve as sample turned into a parcel and sealed . Remaining quantity of 17 Kgs and 500 gms was also turned into a parcel, then sealed . Stepney was wrapped in a gunny bag, turned into a parcel and sealed with the seal. The -:8:- aforesaid truck was also seized. Memos were prepared in respect of seizure of the above mentioned items. Six pieces of cloth were used in preparing parcels.
Personal search of Raj Kumar accused led to recovery of documents. These were taken into possession vide memos. Documents pertaining to the aforesaid truck were also recovered from the truck itself and seized .
After use, the seal was delivered by Inspector Ishwar Singh to Inspector Samay Singh. Inspector Ishwar Singh prepared ruqqa and sent the same to PS Punjabi Bagh through HC Dilbagh Singh where present case was registered In this respect, HC Baldev Singh appended endorsement to the end of the ruqqa. Inspector Ishwar Singh prepared rough site plan depicting place of arrest of Gurcharan Singh and Raj Kumar accused and the aforesaid recoveries.
Police interrogated Gurcharan Singh accused, arrested him and prepared his personal search memo. Police also recorded statements of Inspector Rajinder Singh and Inspector Samay Singh. Thereafter, the police parties returned to PS Punjabi Bagh where entire case property was deposited with the MHC(M).
From P.S. Punjabi Bagh, Gurcharan Singh and -:9:- Raj Kumar accused were taken to head office of Crime Branch, R.K. Puram, New Delhi, where they were interrogated. During interrogation, Raj Kumar and Gurcharan accused made disclosure statement.
Satender Pal Singh, Gursewak Babla and Mohkam Singh were in custody at Tihar Jail in other cases. Their production warrants were got issued. That is how they were arrested and remanded to police custody.
Satender Pal, Gur Sewak @ Bala and Mohkam Singh made disclosure statements.
On 16.07.98, Inspector Ishwar Singh accompanied by Inspector Samay Singh and SI Ramesh Kumar went to Tihar Jail premises and seized Prisoners Visitor Register. Register was seized by the police on 30/07/1998. This register contains entries regarding lodging/detention of Satender Pal and Gursewak accused in Cell No. 3, ward No. 8,Jail No. 3, Tihar .
On 17/07/1998 Naim Ulla accused (since deceased) was arrested and interrogated whereupon he made disclosure statement. On 17/07/1998 Naim Ulla took the police party headed by Inspector Ishwar Singh to house no. JB-6/188, Welcome Part-III, Kabutar Bazar, Seelampur, -:10:- and from there he got recovered three rubber stamps which were forged and fabricated; six documents depicting details of case in which Gur Sewak @ Babla accused was involved and other miscellaneous papers. Impressions of the seals recovered from Naim Ulla accused were available on the sheets .
Rubber stamps and documents referred to above recovered at the instance of Naim Ula were seized and sealed. ASI Ravinder Singh on 20/07/1998 went to Rajasthan High Court to collect specimen impression of stamps of Rajasthan High Court.
On 20/07/1998 PW23 ASI Ravinder accompanied by Ct. Om Parkash obtained impression of seals of the High Court of Rajasthan.
In pursuance of disclosure statement made by Raj Kumar accused record was summoned from the Office of Hutch Mobile Phone Company to verify incoming and outgoing calls made from and received on mobile phone The requisite record ws seized by the police.
Inspector Ishwar Singh found that phone bearing No. 9811193968 was used by someone who had not changed his location. Investigation revealed that outgoing calls were -:11:- made from telephone phone No. 9811193968 to landline No. 5761255 installed at your house.
On 14/07/1998, General Manager of Hutch, produced before Inspector Ishwar Singh, record of the aforesaid three mobile phone numbers and 9811131490. Inspector Ishwar Singh seized the same.
Further case of prosecution is that detail of the calls was provided by Sh. J. P. Makkar, General Manager - Nodal Officer of ESSAR Cell Phone to the police and the record was seized. As per record produced by General Manager of Hutch before the police, two mobile phones bearing no. 9811193968 and 9811196367 were used in one instrument bearing IMEI No. 490137202921810.
Inspector Ishwar Singh also seized Airtel-record in respect of mobile number 9810197543 when produced by Personal Manager. As per record produced by Personal Manager of Airtel, the aforesaid mobile phone no. 9810197543 was found used by some person who constantly remained at one location and that calls were made to the house of Mohkam Singh, accused, on his landline phone no. 0161-411430.
On 08/07/1998 at about 10 a.m. Raj Kumar -:12:- accused visited the STD/PCO Booth of Jadgepal in Shastri Nagar, Batala, Distt. Gurdaspur and made two calls i.e. in the area of Batala, and 3rd call with a destination Delhi on a mobile phone.
Raj Kumar accused while in police custody was taken to the STD PCO Booth of Jadgepal and he verified identity of Raj Kumar accused as the person who had made the above mentioned three calls from his STD PCO Booth on 08/07/1998. Record regarding details of calls was seized.
Inspector Ishwar Singh directed SI Kharag Singh to visit Punjab in connection with investigation of this case. Accordingly, on18/07/1998 SI Kharag Singh went to Batala and collected record regarding telephone calls from Judgepal.
On 20/07/1998 Inspector Ishwar Singh obtained specimen signatures and writing of Raj Kumar accused in presence of ASI Ravinder Singh.
On 24/07/1998 Amarjeet Singh Soren accused was produced before Courts at Delhi on production warrants and his custody by way of police remand was obtained. Inspector Ishwar Singh interrogated Amarjeet Singh accused whereupon he made disclosure statement.
On 25.07.98, Inspector Kharag Singh and his staff -:13:- took Amarjit Singh accused to Batala (Punjab) whereupon he led the police party to Tannu STD Booth, Gurdaspur Road, Batala and pointing out memo was prepared. Thereafter Amarjit Singh accused led the police party headed by Inspector Kharag Singh to Super STD Booth, Batala, whereupon pointing out memo was prepared. Amarjit Singh accused led the aforesaid police party to Will STD Booth on Gurdaspur Road and in this respect memo was prepared and call details were seized.
Inspector Kharag Singh also went to Office of MTNL ( main exchange), Pathankot and collected details of calls of telephone installed at STD Booth and bearing phone no. 44912, for the period from 15.04.98 to 15.06.98 . Call details of telephone no. 30158 (STD), for the period from 15.05.98 to 15.07.98 were lso collected. Inspector Kharag Singh produced these details before Inspector Ishwar Singh who seized the same. Extract of call details was also seized. These pertain to STD booth telephone No. 44910 and 44912.
During investigation Inspector Ishwar Singh seized telephone record collected from Pathankot Exchange by Ct. Ajeet Singh. As per this record, calls recorded at serial no. 911 and 912 were made from PCO telephone no. 44912 -:14:- to telephone no. 00441203684802 in United Kingdom on 07/07/1998. At serial no. 914 there is entry regarding a call made from the aforesaid PCO to Delhi at Mobile phone no. 9811099352.
Details of ownership and address of 10 telephone numbers were collected from the office of Sub Division, MTNL, Kidwai Bhawan, Delhi, Inspector Ishwar Singh sent SI Arvind Kumar to Tihar Jail for investigation on 30/07/1998.
On 28.07.98 Sh. Yash Pal Garg, Superintendent of Central Jail No.3, Tihar, Delhi, was present near Jail Chakkar, on lifting one stool, Jail staff found that its top got opened and some connected wires were found. Immediately, Sh. Yashpal Garg entered the said room and directed the officials to open the stool. On opening the stool, it was found that there were two cavities in it. In one of the cavities of the stool, one mobile phone, in the second cavity, one charger with lead were found. Sh. Yashpal Garg immediately informed his superiors about these recoveries.
One Case roll make Wings was recovered on 08.07.98 at the time of inspection of ward No.8. On inspection of the case roll it was found in the cavity of its thermacol and a mobile phone was put in the cavity and it -:15:- fitted therein.
Report dated 28.07.98 was prepared by Sh. Dhananjay Rawat, Assistant Superintendent of Jail. It was countersigned by Sh. B.S. Jariyal, Deputy Superintendent of that Jail. This report was put up before Sh. Yashpal Garg on 28.07.98 whereupon he appended his note thereto, raising certain queries.
The aforesaid report was then forwarded by Sh. Jaidev Sarangi, DIG (Prisons) to Inspector General (Prisons). Detailed report was sent to DIG (Prisons) and items were dispatched to Prison (HQ) . It was thereafter that Sh. Yashpal Garg wrote letter to Assistant Commissioner of Police (Crime Branch), while annexing thereto list depicting prohibited articles recovered at the time of search, of ward No. 8A and 8B of Jail No.3, Tihar Cellular phone handset Make Nokia alongwith battery, and charger in damage condition alongwith its cord were produced by Sh. Dheeraj Mathur, Assistant Superintendent Jail and seized by police.
On 16/09/1998, Manager of Rachna Hotel, Paharganj, produced one Customer Register containing entry no. 1790 at page no. 140 regarding stay of customer namely -:16:- Raj Kumar.
On 24/09/1998 Head Ct. Hans Kumar collected some documents from Inspector Ishwar Singh and delivered the same at FSL Malviya Nagar without tampering with the same. Fire arms, ammunition and explosive material referred to above were got dispatched to CFSL Chandigarh through Head Ct. Vishnu Bhagwan for analysis.
Sh. S. K. Jain, Director CFSL Chandigarh, analysed contents of three sealed parcels received in the laboratory on 29/07/1998 for Ballistic Examination. Dr. S. K. Jain submitted detailed report. CFSL Chandigarh issued directions for diffusing explosive material same being dangerous.
Rajiv Kohli accused could not be apprehended, he being at large. Accordingly, NBWs were got issued under orders of the court and he was declared proclaimed offender. On 21/05/99 SI Arvind Kumar accompanied by SI Upender Solanki received secret information about production of Rajiv Kohli accused before SEM, Moti Nagar. Accordingly, Rajiv Kohli was apprehended on that date at about 03:45 p.m. Rajiv Kohli accused made disclosure statement on 22/05/1999 in presence of SI Upender Solanki. -:17:-
On 06.10.1998 Sh. Karnal Singh, while posted as DCP (crime & Railways) accorded sanction for prosecution of Raj Kumar and Gurcharan Singh accused u/s 39 of Arms Act. Sanction u/s 196 Cr.P.C. was obtained from Sh. S. C. Sareen, then serving with Govt. of NCT, Delhi, for prosecution of Satender Pal, Raj Kumar, Gurcharan Singh, Gur Sewak @ Babla, Mohkam Singh, Amarjeet Singh, Naim Ulla and Rajiv Kohli accused. Sanction for prosecution under the Explosive Substances Act was also obtained.
On 30.08.98 Sh. Yashpal Superintendent Jail No.3, Tihar, produced before SI Arvind Kumar letter dated 30.07.98 with list of articles annexed thereto. The list was about articles recovered from ward no. 8, jail no.3. SI Arvind Kumar in turn produced this letter and the recovery memos prepared by him before Inspector Ishwar Singh.
CFSL reports were received.
On completion of investigation challan was put in court.
Charge
2. After compliance with provisions of section 207 Cr.P.C., case came to be committed to the Hon'ble Court of Session.
-:18:-
Prima facie case having been made out, charge for offences U/s. 467 and 472 IPC and for offences U/s. 120B, 121 read with Section 120B, 121A, 122 read with Section 120B and 123 read with Section 120B IPC was framed against accused Naimulla.
It may be mentioned here that Naimulla accused left this world during pendency of trial, and as such, proceedings stands abated qua him.
On 09/07/2002, charge for offences U/s. 120B, 121 read with Section 120B, 121A, 122 read with Section 120B and 123 read with Section 120B IPC was framed against Raj Kumar, Gurcharan Singh, Satender Pal Singh, Gursewak Singh @ Babla, Mohkam Singh and Rajiv Kohli accused.
Charge for an offence U/s. 25 of the Arms Act and for the offence U/s. 4 & 5 of Explosive Substances Act was also framed against Gurcharan Singh and Raj Kumar accused.
Since the accused persons pleaded not guilty and claimed trial, prosecution was directed to lead its evidence.
-:19:-Prosecution Evidence
3. In order to prove its case, prosecution examined following 35 witnesses:
PW1 Pyare Lal, Manager of Hotel Rachna, situated in Pahar Ganj, Delhi, when examined, did not support the case of prosecution regarding stay of Raj Kumar accused in the hotel from 02.07.98 to 05.07.98 or that at that time, Raj Kumar was accompanied by one Sikh gentleman or that the witness heard Raj Kumar and his companion saying that they had friendship with Satender Pal @ Twinkle of Pahar Ganj and Babla or that as and when they come out of jail, they would do some great job. The witness also did not support the case of prosecution on the aspect that he heard Raj Kumar talking from his mobile phone to someone " aisa dhamaka karenge ki sarkar hil jayegi".
PW2 Ram Prasad is an employee of Hotel Rachna. He too did not support the case of prosecution.
PW3 Surender Singh displayed ignorance about this case. He stated that he was running a STD booth but it was closed two years prior to his making statement in court (his statement was recorded in court on 04.09.2002.) The witness did not support the case of prosecution that on -:20:- 25.07.98 Amarjit Singh Sohal accused accompanied by police reached his STD booth or that he talked from his STD booth with Raju @ Raj Kumar on his mobile No. 9811099352 or that at his instance any memo was prepared.
PW8 Satnam Singh was running STD Booth at Fountain Crossing Batala and having telephone connection No. 44910.
PW4 Rajni Yadav also displayed ignorance about this case and thereby not supported the case of prosecution. He denied to have stated before the police that he had manufactured stamps of different types.
PW5 Sohan Lata Saini is Assistant Superintendent Jail, Central Jail Tihar, Delhi, who has proved seizure of register Ex. PW5/1by the police on 30.07.98 vide memo Ex. PW5/A. PW6 Sh. Dheeraj Mathur, the then Assistant Superintendent Jail, deposed that on 30.07.98 he produced one cellular handset phone of Nokia Ex. P1 alongwith its battery and charger Ex. P2; that the charger cord was in damaged condition; that memo Ex. PW6/A was prepared. According to the witness, number of said handset was CE
-0188-490-137/201292181/Q having code No. 0500581. He -:21:- further stated that the set was made in Germany.
PW20 Head Constable Dilbag Singh has deposed about having gone to the Police Station with ruqqa and got this case registered. He has also deposed about investigation conducted on 13/07/1998 and 14/07/1998. PW7 HC Baldev Singh has been examined to prove recording of FIR Ex. PW7/B of this case on the basis of ruqqa Ex. PW7/A and that investigation was assigned to Inspector Ishwar Singh. According to the witness, he appended endorsement Ex. PW7/C to the ruqqa.
PW9 Sh. Dhananjay Rawat, Assistant Superintendent, Central Jail No.3 has deposed about recovery dated 08/07/1998 of stool Ex.P20 with two cavities in it from the store of Jail No. 3, Central Jail, Tihar; that in one of the cavities there was a cell phone EX.P22 while other cavity was containing a charger Ex.P23 with a cord; that all these three items were handed over to the Superintendent Jail. He has been examined to prove seizure of case roll, make wings, produced by him before police vide memo Ex.PW9/A on 30/07/1998; and also to prove memo Ex.PW9/A prepared regarding handing over of one wooden stool Ex.P20.
PW13 Inspector Samay Singh and PW19 -:22:- Inspector Rajender Singh have deposed about recoveries from Raj Kumar and Gur Charan Singh accused when they were apprehended with the foresid truck, and the investigation conducted in respect thereof.
PW-26 Judge Pal has been examined to prove that on 08/07/1998 at about 10 a.m., Raj Kumar (accused) came to the STD PCO Booth in Shastri Nagar near Batala, District Gurdaspur, Punjab, and that he made two calls and third call with destination Delhi on a mobile phone. He verified identity of Raj Kumar accused when brought to the STD Booth by police.
PW21 Sh.Yashpal Garg, posted as Superintendent, Central Jail No.3, Tihar, deposed about recovery of stool, containing one mobile phone in one of its cavities and a charger with lead in the other cavity on 28/07/1998. He further deposed about the steps taken by him and other officers after recovery of the aforesaid prohibited items.
PW11 Mrs. Meena Lokhar was serving as Assistant Superintendent, Jail No. 3, Tihar, in the year 1998. She has been examined to depose about the entry made in register marked as Ex.P11/A meant for interviews with jail -:23:- inmates.
PW34 Inspector Arvind Kumar, then posted as SI in Anti Kidnapping Cell has been examined to prove his visit to Tihar Jail and investigation conducted there in respect of this case.
PW12 Head Ct. Hukam Singh was serving as MHC (M) P.S. Punjabi Bagh on 09/07/1998. He has deposed about the deposit of case property with him by Inspector Ishwar Singh of Crime Branch on 09/07/1998 and also on 17/07/1998. Then he deposed about deposit of three sealed parcels with him by ASI Arvind Kumar on 30/07/1998. Further according to him on 29/07/1998, thirteen sealed parcels were sent by him to FSL Chandigarh through Head Ct. Vishnu Bhagwan. It is also in his statement that on 06/04/1999, seven sealed parcels were handed over by him to ASI Ravinder for disposal. The witness deposed about signatures made in register no. 19 and register no. 21.
PW28 Head Ct. Hans Kumar has been examined to prove desptch of some documents contained in an envelope at FSL Malviya Nagar after the same was handed over to him by Inspector Ishwar Singh on 24/09/1998.
PW14 Dr. S. K. Jain is Director, CFSL Chandigarh -:24:- who has been examined to prove report Ex.PW14/A which he prepared after analysis of the contents of three sealed parcels, received by him on 29/07/1998.
PW30 (inadvertently typed as PW25) SI Chunni Lal has deposed to have destroyed eight hand grenades, four IED fuse, four Panasonic Batteries, five detonators, five electric detonators and pencil ABCD timer on 06/04/1999.
PW15 Sh. Inderjeet, Accounts Officer, Telephone Revenue Accounts, Pathankot (Punjab) has been examined to prove letter Ex.PW15/A dated 26/08/1998 purported to have written by Sh. N. K. Behl, the then Accounts Officer, to Inspector, Anti Kidnapping Cell, Crime Brach, R. K. Puram, New Delhi. He has also been examined to prove computerised details of phone calls as contained in Ex.PW15/B and Ex.PW15/C. PW24 Gulshan Arora is Nodal Officer of Hutchson Issar Phone Company. He has proved letter Ex.PW24/A sent by Sh. J. P. Makkar, General Manager of the company. The other documents Ex.PW20/D, Ex.PW24/A1, Ex.PW24/A2 and Ex.PW24/A3 containing details of calls and also document Ex.PW20/C sent by Sh. J. P. Makkar.
PW25 Captain Rakesh Bakshi is Nodal Officer -:25:- from Bharti Cellular Company who has been examined to prove Ex.PW20/F containing computerised generated details in Hexa Form.
PW17 Hari Singh, Sub Divisional Engineer, MTNL, has been examined to prove Ex.PW17/A i.e. his report regarding ownership and address in respect of ten telephone numbers contained therein.
PW29 Shiv Kumar Thanvi, the then Superintendent in Rajasthan High Court, Jaipur Bench, has been examined to prove sheet Ex.PW23/7D bearing impression of original seal of the Hon'ble High Court; sheet Ex.PW23/7A bearing signatures of Ram Kumar Ashwani, Assistant Registrar and impression of original rubber stamp of Rajasthan High Court, Jaipur Bench; Ex.PW23/7C bearing signatures of Mange Lal Raj Purohit containing impression of original rubber stamp of Rajasthan High Court, Jaipur Bench.
PW31 (inadvertently typed as PW26) SI Upender Solanki has deposed about arrest of Rajiv Kohli accused on 21/05/1999 vide memo Ex.PW26/A and PW26/B, when he was produced before S.E.M., Moti Nagar at 03:45 p.m. and further that on 22/05/1999 he made disclosure statement Ex.PW26/C. -:26:- PW32 (inadvertently typed as PW27) Sh. A. K. Roy deposed that on 06/04/1999 he took photographs of several bombs lying at NSG Camp, Manesar, Gurgaon. It may be mentioned here that witness was not further examined after his examination on 21/02/2007 despite opportunity.
PW10 Head Ct. Vishnu Bhagwan, PW22 Inspector Kharak Singh and PW23 ASI Ravinder Singh have deposed about investigation part of the prosecution story. PW18 Constable Ajeet Singh has deposed about investigation conducted by ASI Kharak Singh in his presence.
PW 33 Inspector Ishwar Singh is the investigating officer of the case. He has deposed about investigation part of prosecution story.
PW16 Sh. Karnal Singh, the then DCP (Crime and Railways) has been examined to prove sanction Ex.PW16/A accorded by him for prosecution of Raj Kumar and Gur Charan Singh accused under Section 39 of Arms Act.
PW27 Sh. S. C. Sareen, then posted as Additional Secretary (Home) Govt. of NCT of Delhi has been examined to prove sanction Ex.PW27/A accorded after -:27:- obtaining of approval of the competent authority i.e. Lt. Governor of Delhi, for prosecution of Raj Kumar, Gur Charan Singh, Satender Pal Singh @ Twinkle, Gur Sewak Singh @ Babla, Mohkam Singh @ Gill @ Khandwala, Amarjeet Singh Sohal, Naimulla and Rajiv Kohli.
PW35 R.C. Meena, then Deputy Secretary Home (General) GNCT of Delhi, has been examined to prove sanction Ex.PW35/A accorded by Lt. Governor of Delhi on 04/05/1999.
Defence Plea
4. When examined U/s. 313 CrPC, the accused persons have denied all the incriminating circumstances appearing in evidence against them and claimed false implications.
Plea put forth by Satender Pal Singh accused is as under:
"I never made any such disclosure statement. I have no knowledge if any disclosure statement was made by Gursewak Singh and Mohkam Singh.
....Phone No. 5761255 was not installed at my house either in my name or in -:28:- the name of my other family member. I have no knowledge about any call from the mobile phone bearing No. 9811193968.
.... On that date, I was not in Jail No.3. Therefore, I have no knowledge about this fact. While I was being detained in jail, no stool was ever provided to me, I being in high security ward.
....I have no knowledge about recovery of these articles.
... No prisoner of B category was kept in ward No. 8A and 8B as on 08.07.98 or prior thereto.
.... No sanction for offence U.s.
120B IPC has been accorded for my prosecution. ... I have been falsely implicated in
this case. During that period I was in jail. I do not know any of my co-accused. No recovery has been effected from me. It is a well planned false case of conspiracy made out by the police in collusion with the jail authorities. The record has been fabricated in order to make out a case of conspiracy against me. No mobile phone, charger, stool or case roll had ever been recovered by the police from my ward/cell at any time. The mobile phone does not belong to me and as per the mobile record -:29:- produced and proved in evidence, the mobile phone no. 9811193968 was admittedly in the name of O.P. S.C. With the address of X-7, Okhla Industrial Area, Phase III, New Delhi, which facts by themselves do not connect me with the mobile phone in question. More over the police did not deliberately carry out any investigation in that regard although this fact came to the notice of the police. The sanction for prosecution of the offences under the IPC was obtained later after the institution of the challan from the sanctioning authority after getting it anti dated. There is regular and frequent daily frisking and checking of the inmates lodged in high security jail and there is no question of any inmate having any kind of furniture as alleged in the evidence. It is a false case.
Plea put forth by Gur Sewak @ Babla is as under:
.... I saw Naim Ulla only at the time I was produced in court from custody. Rest is denied for want of knowledge.
.... Two days prior to our production in court in respect of this case, I was shifted from Cell No.1, High Risk Ward, Jail No. 3 to Jail No. 2 whereas Satender Pal -:30:- Singh was shifted from another cell of High Risk Ward, Jail No. 3 to perhaps Jail No.5.
.... There was no B Category in Jail No.3. I was not provided with any furniture. I was not provided B Category as I am illiterate.
...I have no knowledge about this fact. I was removed from Ward No.8 of Jail No.3 two days prior to my production in court on production warrants in respect of this case.
... I apprehend that I have been falsely implicated in this case at the instance of Mr. Cheema, of Delhi Police who hails from Punjab. Even my brother Swaran Singh had got murdered."
Plea put forth by Rajiv Kohli accused as under:
I never visited to Jail to have interview with Satender Pal, Mohkam Singh and Gur Sewak at any point of time. I am innocent.
Plea put forth by Gur Charan Singh accused is as under:
"I was picked up by Delhi Police from Truck Union Office, Tehsil Dhuri (Punjab).
...I do not know as to where the police took me after my arrest from Dhuri. -:31:-
...I do not know as to why I have been falsely implicated in this case and at whose instance."
Plea put forth by Raj Kumar accused is as under:
"I was picked up by the police from Jail No.3, Tihar, where I had come on 3/4 th of July 1998 and then falsely implicated in this case.
...I have no knowledge about this fact but I may mention that police took me to various places in Delhi.
... I know that Gur Sewak was in custody at Tihar. I have no knowledge about the other two accused namely Statender Pal and Mohkam Singh.
.. I have no knowledge about this fact since I did not make any such disclosure statement.
.. On 17.07.98, Delhi Police took me to Police Station Batala, Punjab, called 2/3 persons there. Rest I do not know.
... I have been falsely implicated because earlier I was involved in some cases by Punjab Police."-:32:-
Plea put forth by Mohkam Singh accused is as under:
"..Only I was produced on production warrants. I do not know about the production of the co-accused.
..It is false that I made any such disclosure statement.
..However, I made calls at my landline phone No. 0161-411430 from PCO twice/thrice, after seeking permission from the court.
... I was involved in a number of cases by the Punjab Police at the instance of opposite political party,namely, Congress, as I was a member of Akali Dal. Therefore, I have been falsely implicated in this case."
Plea put forth by Amarjeet Singh accused is as under:
"In July1998, Punjab Police picked up me from my house. In respect thereof, a telegram was given to Hon'ble High Court of Punjab & Haryana. That is why Inspectors Jarnail Singh and Vikram Chand of Punjab Police declared that I would not be allowed to go out. I apprehend that I had been falsely implicated in this case at the instance of Punjab Police. At the time I was produced before the court of Sh. J.R. Aryan, -:33:- Ld. Judicial Officer, Tis Hazari Courts, I had filed an application that my signatures were obtained on blank papers."
Despite opportunity, the accused persons opted not to lead any evidence in defence.
5. Arguments heard. File perused.
Recovery of incriminating objects from Raj Kumar and Gurcharan Singh accused
6. Case of prosecution is that on 9.7.1998 at about noon time, on the basis secret information Inspector Ishwar Singh, Inspector Samay Singh and Inspector Rajender Singh held picket and apprehended Raj Kumar and Gurcharan Singh accused and recovered from truck No.HR-29-B-8520 huge quantity of fire-arms, ammunition and explosives. In this regard, case of prosecution is based on the statements of the three Inspectors and others.
As to what was the secret information, PW 33- Inspector Ishwar Singh deposed that on 09.07.98 at about 12.15 p.m, one of the secret informers informed him at the office of Crime Branch that on that day at about 3 p.m, -:34:- militants of Punjab would bring truck bearing No. HR-29B near Transport Nagar, Punjabi Bagh, and that explosive material was going to be handed over to Bombay based associates.
The witness further deposed that after having received secret information, he deployed some secret informers to pursue the aforesaid information. He discussed the aforesaid information with senior officers and it was decided that a raid be conducted. Accordingly, raiding party consisting of Inspector Ishwar Singh, Inspector Samay Singh, Inspector Rajinder Kumar, SI Arvind Kumar, SI Jagdish, SI Ramesh Kumar, ASI(Driver) Jagdish, HC Dilbagh Singh and others was constituted and all the members were briefed about information.
The aforesaid team boarded two government vehicles and a private Maruti car and reached Transport Nagar, Punjabi Bagh. On reaching Transport Nagar, Inspector Ishwar Singh made efforts to join persons from the public but none agreed to join. Ultimately, at about 2.15 p.m, the entire team was sub-divided into three teams, each headed by one Inspector. According to the witness, he headed team "Y" and stationed near main gate of Transport -:35:- Nagar. Inspector Samay Singh was In-charge of team stationed on ring road leading to Punjabi Bagh. Inspector Rajinder Singh was In-charge of team "Z" stationed about 100 yards away from main gate of Transport Nagar, towards east side.
At about 3 p.m., Inspector Samay Singh saw aforesaid truck and accordingly informed the other two teams. At the same time, the truck was chased. The truck was intercepted near main gate of Transport Nagar. It was found being driven by Gurcharan Singh accused while Raj Kumar accused, was found sitting by the side of Gurcharan Singh accused. Both of them were overpowered and their personal search was conducted.
PW33 further deposed that on personal search of Raj Kumar accused, he recovered one Chinese make English pistol of .33 bore. On unloading the pistol, magazine was found to contain 10 live cartridges . Rough sketch of the pistol, the magazine and live cartridges was prepared. These items were turned into a parcel and sealed.
Further according to PW 33 during interrogation, Raj Kumar accused disclosed that more explosive material was inside the stepney of the aforesaid truck whereupon at -:36:- his pointing out, he and and his staff removed the stepney from the truck. It did not contain any tube. Recoveries from the stepney of the truck
7. According to PW 33, on opening the stepney, some explosive material covered with torn pieces of a tube was found lying in the stepney. The torn pieces were removed from the explosive material whereupon a brown colour military bag pouch containing AK47 rifle, three magazines and 100 live cartridges were recovered. The witness picked up 10 live cartridges from 100 live cartridges to serve as samples. These 10 live cartridges and remaining 90 live cartridges were turned into a parcel and sealed. AK47 rifle, three magazines and 10 live sample cartridges were also turned into parcels and sealed.
Further search of stepney led to recovery of .34 Chinese pistol with 5 magazines and 130 live cartridges, as further stated by the witness. Out of these live cartridges, 10 cartridges were picked up to serve as samples. These were turned into a parcel and sealed. Remaining 120 live cartridges were also turned into a parcel and sealed.
Eight hand grenades and 10 fuse cords of hand grenades were recovered from the stepney. The hand -:37:- grenades were turned into a parcel whereas 10 fuse cords were turned into a separate parcel and these parcels were sealed . Rough sketch of one hand grenade and one fuse was prepared.
Four ABCD Timer devices and four batteries were recovered from stepney. These were turned into two separate parcels which were sealed . From the stepney, five detonators ( Electric) and five liquid detonators were recovered. These were turned into two separate parcels and were then sealed with the seal and the parcels were numbered. Rough sketch of one of the detonators was prepared.
Two pencil bombs were recovered from a box found lying in stepney. Sketch was prepared in respect of one of the pencil bombs, one fuse cord and one hand grenade.
Loose electric wires were also recovered from stepney, turned into a parcel and sealed.
Further according to PW33, RDX explosive material weighing 18 Kgs alongwith torn polythenes was recovered from stepney. 500 gms of RDX explosive material was separated to serve as sample turned into a parcel and -:38:- sealed . Remaining quantity of 17 Kgs and 500 gms was also turned into a parcel, then sealed . Stepney was wrapped in a gunny bag, turned into a parcel and sealed with the seal. The aforesaid truck was also seized.
It is true that this is a case where no witness from the public was associated either before or at the time of recovery or during the investigation at the place of recovery, but non joining of independent witness is not always fatal for the prosecution or a reason so as to disbelieve the statements of police officials in entirety. It is well settled that non joining of witness from the public puts the Court on guard to scrutinize statements of official witnesses with more care and caution and that statements of official witnesses cannot be discarded in entirety merely because no witness from the public has been associated.
I have gone through the statements of the three witnesses with care and caution. PW13 Inspector Samay Singh and PW19 Inspector Rajender Singh have deposed in line with the statement of PW33 Inspector Ishwar Singh, Investigating Officer of the case in regard to the manner in which Raj Kumar and Gurcharan Singh accused were apprehended and recoveries were made from them after the -:39:- truck was stopped and searched.
Rough site plan Ex.PW13/DA depicts the place of arrest of Raj Kumar, Gurcharan Singh and recoveries made from them. It also depicts the position of all the three teams at the place of picket. Number, position and route of the truck i.e. HR 29 B 8520 also find mentioned in it. Memos were prepared in respect of seizure of the above mentioned items. These are Ex.PW13/B, Ex.PW13/E and Ex.PW13/H. Number of the truck, name of the accused and the material objects recovered at the spot stand duly recorded in these memos. Therefore, when PW33 could not tell complete registration number of the truck while making statement in Court, the same does not create any doubt in the version narrated by him.
Pistol is Ex.P1;
cartridges are Ex.PW2/1 to 10;
magazine found fitted in the pistol Ex.P1 is P3; AK 47 rifle is Ex.P4; 3 magazines are Ex.PW5/1 to 3;
military colour pouch meant for containing magazines is Ex.P6;
cartridges of AK 47 rifles collected exhibited are -:40:- Ex.P7/1 to 10 (one was test fired);
90 live cartridges of AK 47 rifles are Ex.P9/1 to 90;
pistol .30 bore is Ex.P10;
5 magazines are Ex.P11/1 to 5;
10 cartridges of .30 bore are Ex.P12/1 to 10; 120 live cartridges of .30 bore are Ex.P13/1 to 120;
Two fuse cords are Ex.P14/1 and 2;
Bag containing sample RDX weighing 500 grams is Ex.P15;
4 Panasonic batteries of 9 Volt are Ex.P17/1 to 4; 6 pieces of cloth used in preparing parcels are Ex.PW33/1 to 6;
Polythene bag containing remaining quantity of RDX i.e. 17 kgs and 500 grams of RDX is Ex.P16; and Tyre is Ex.P18;
Rough sketches of the fire arm, ammunition and explosive substance are Ex.PW13/A, C, F, G. There is nothing on record to suggest that any of the sketch does not -:41:- tally with the fire arm or ammunition or the explosive substance. Material available on record does not suggest that the witnesses, who have deposed about factum of arrest of these two accused and about recoveries, were not present on the given date, time and place. Memos bear attestation of witnesses which go to establish their presence at the time of recoveries.
In the course of arguments, it was not argued on behalf of Raj Kumar and Gurcharan Singh accused that such a huge quantity of fire arms, ammunition and explosive material has been planted upon them.
The accused persons have not come up with the plea of alibi. There is nothing on record to suggest that any of the member of the three teams was inimical towards the two accused or that anyone of them or any of their senior police officer could go to the extent of falsely implicating them in suchlike case. It is not believable that to rope in two innocent persons in suchlike a case, police needs such a huge recovery.
Documents pertaining to the aforesaid truck were also recovered from the truck itself and seized . In this regard, memo Ex.PW33/J was prepared. Documents are -:42:- Ex.PW33/A to I. Recoveries on personal search of Raj Kumar accused:
8. According to PW33, Personal search of Raj Kumar accused led to recovery of documents. These were taken into possession vide memos. Police interrogated Gurcharan Singh accused, arrested him and prepared his personal search memo. Statements of Inspector Rajinder Singh and Inspector Samay Singh were also recorded.
Ruqqa is sent from the spot
9. After use of the seal in sealing the incriminating material recovered at the spot, the seal was delivered to Inspector Samay Singh. According to PW33, he used seal bearing impression IS at the time of recoveries on 9.7.1998 and then delivered to Inspector Samay Singh.
Contention raised by learned defence counsel is that when no document has been placed on record as to on which date the seal was returned by Inspector Samay Singh to Inspector Ishwar Singh, possibility of tampering with the case property cannot be ruled out.
A perusal of evidence would reveal that PW13 Inspector Samay Singh has supported the statement of PW33 by stating that after use, the Inspector handed over the seal to -:43:- him. It is in the statement of PW 33 Inspector Ishwar Singh that he prepared ruqqa Ex.PW7/A and sent the same to PS Punjabi Bagh through HC Dilbagh Singh where present case was registered. In this respect, HC Baldev Singh appended endorsement to the end of the ruqqa. The factum of entrustment of seal finds mention in the ruqqa. Had the seal not been entrusted by the Inspector at the spot, this fact would not have found mention in the ruqqa, sent from the spot, which led to prompt registration of the case. Ruqqa was sent from the spot at about 7.45 p.m. PW20 Head Constable Dilbag Singh has deposed about having gone to the Police Station with ruqqa and got this case registered. On completion of proceedings at the spot, the police parties returned to PS Punjabi Bagh where entire case property was deposited with the MHC(M). PW12 Head Ct. Hukam Singh was serving as MHC (M) P.S. Punjabi Bagh on 09/07/1998. He has deposed about the deposit of case property with him by Inspector Ishwar Singh of Crime Branch on 09/07/1998 and also on 17/07/1998. According to him, 13 sealed parcels were sent by him on 30.7.1998 to CFSL for analysis. It is in the statement of PW12 that so long as the case property remained in his custody, it was not tampered with. It may be -:44:- mentioned here statement of PW12 has gone unchallenged as his statement was not subjected to any cross-examination on behalf of any of the accused. It means, the version narrated by the witness about deposit of the case property with him by Inspector Ishwar Singh on 9.7.1998 with seals in tact and that it was not tampered with during the period it remained with him, stands unrebutted. Therefore, I do not find any merit in the contention of learned defence counsel that when no document has been placed on record as to on which date the seal was returned by Inspector Samay Singh to Inspector Ishwar Singh, possibility of tampering with the case property cannot be ruled out.
As regards CFSL form, it has been contended by learned defence counsel that same having not been placed on record it cannot be said that any such CFSL was form was filled in, and consequently, possibility of tampering with the case property cannot be ruled out. Learned defence counsel has referred to relevant provisions contained in High Court Rules and Orders and decision in Soni Pershad Soni v. State, 1997 (1) C.C. Cases 282 (HC); Amarjit Singh and another v. State (Delhi Admn.), 1995 JCC 91; Matloob v. State (Delhi Administration), 1997 (2) C.C.Cases 179. -:45:-
A perusal of ruqqa Ex.PW 7/A would reveal that after the recoveries at the spot, CFSL form was filled in. It is in the statement of HC Hukam Singh that sealed parcels were sent to CFSL for analysis. As noticed above, according to HC Hukam Singh the case property was not tampered with during the period it remained with him. PW10 HC Vishnu Bhagwan is the police official who took sealed parcels from the MHC(M) on 29.7.1998 and deposited the same there vide RC No.35/21. According to PW10, so long as the 13 parcels remained with him, they were not tampered with. He further deposed that he did not tamper with the seals till the 13 parcels were delivered at CFSL, Chandigarh. There is nothing in the statement of PW 10 to disbelieve his version regarding deposit of the case property i.e. 13 sealed parcels at CFSL, with seals intact. Report received from CFSL is dated 31.12.1998. As per this report placed on record by the prosecution and which is admissible in evidence under Section 293 Cr.PC, 13 sealed parcels were analysed. It stands recorded in the report that seals on the ten sealed cloth parcels marked No.3 to 13 were found intact and tallied with the specimen seals as per forwarding authority letter. PW14 Dr.S.K.Jain has deposed having received sealed -:46:- parcels on 29.7.1998. He further deposed that seals on the samples were found intact and tallied with the specimen seals provided. This goes to show that the specimen seals were also sent to CFSL. In his cross-examination, no question was put to the witness about CFSL form. Actually, statement of PW14 has gone unchallenged, which is tantamount to tacit acceptance of the version narrated by the witness. Road certificate is Ex.PW12/B. Contents of Ex.PW12/B lend corroboration to the statements of the MHC(M) and that of PW10 HC Vishnu Bhagwan. PW13 Inspector Samay Singh deposed about filling up of CFSL form at the spot. Keeping in view all this, even if the Investigating Officer did not depose about CFSL form, it does not adversely affect the case of prosecution. In the peculiar circumstances of this case, this court comes to the conclusion that prosecution has ruled out possibility of tampering with the case property and that accused cannot take advantage of decision in Soni Pershad Soni v. State, 1997 (1) C.C.Cases 282 (HC); Amarjit Singh and another v. State (Delhi Admn.), 1991 JCC 91; Matloob v. State (Delhi Admn.), 1997 (2) C.C.Cases 179 (supra).
In view of the above discussion, this court can safely rely on the report Ex.PW14/A. A perusal of report -:47:- Ex.PW14/A would reveal that after analysing the contents of the parcels, the expert opined as under:
1. 7.62 mm AK 56 No. 16051957 Rifle Mark A, one .30 inch pistol No. 32066959 Mark B and one .30 inch pistol No. 40015748 Mark C are in working order and these are regular/factory made fire arms.
2. Cartridge Mark L1 to L10 and L11 to L31 are 7.62 mm, calibre, AK Rifle and .302 Calibre pistol cartridge and these are also factory made fire arms. Out of 31 cartridges Mark L1 to L10 and L11 to L31, three cartridges Market L2, L18 and L28 selected randomly and successfully fired through 7.62 mm AK56 No. 16051957 rifle Mark A, .30 inch pistol No. 32066959 Mark B and .30 inch pistol No. 4015748 Marked C respectively and found to be live.
The other report dated 31.12.1998 received from CFSL would reveal that various laboratory tests such as colour tests and chromatographic analysis were carried out with exhibits 10, 11 and 13 - under reference. The results thus obtained have been analysed as given below:
1) Potassium Nitrate, Sulphur and Charcoal has been detected in black colour wire of exhibit -10.
2) Pentaerythritol tetranitramine (PETN) has been detected in red coloured wire of exhibit - 10.-:48:-
3) Trimethylene trinitramine (RDX) has been detected in exhibit - 11 and exhibit 13.
Contents of parcels 3 to 9 were not analysed because on opening the same it was found that they were live. The expert requested the police to diffuse the material and provide the diffused material for further chemical analysis. PW30 SI Chuni Lal has deposed to have destroyed 8 hand grenades, 4 IED fuse, 5 detonators, 5 electric detonators and pencil ABCD timers on 6.4.99. After destruction of the above explosives, clothes in which these were found sealed, were sealed into a parcel. Statement of PW30 has gone unchallenged. Thus, there is no dispute about destruction/explosion of 8 hand grenades, 4 IED fuse, 5 detonators, 5 electric detonators and pencil ABCD timers on 6.4.99 as all these items were considered and found to be dangerous. Destruction/explosion of this material took place under orders dated 1.4.1999 passed by learned Addl.Sessions Judge, Delhi on the application filed by the State. Statement of PW30 lends corroboration to the statements of PW13, PW19 and PW20.
Learned defence counsel has contended that in this case, prosecution has failed to prove if any Kayami -:49:- Mukdama was recorded at the police station, and as such possibility of FIR having been ante-timed and manipulation of other contents of the FIR cannot be ruled out.
PW7 HC Baldev Singh has been examined to prove recording of FIR Ex. PW7/B of this case on the basis of ruqqa Ex. PW7/A and that investigation was assigned to Inspector Ishwar Singh. According to the witness, he appended endorsement Ex. PW7/C to the ruqqa. Statement of PW7 has not been subjected to any cross-examination. Therefore, factum of recording of FIR Ex.PW7/C on 9.7.1998 at 8 p.m on the basis of ruqqa sent by Inspector Ishwar Singh from the spot to the police station stands duly proved.
It is true that under Section 154 Cr.PC substance of the information, whether given in writing or reduced to writing, is to be entered in a book i.e. Daily Diary to be kept by the Officer Incharge of the police station, but in this case PW7 was not subjected to any cross-examination in this regard. A perusal of FIR Ex.PW7/B would reveal that corresponding entry No.13 A was recorded in the Daily Diary about registration of this case and PW7 appended a note in this regard at the end of the ruqqa Ex.7/A. There is nothing on record to suggest that any -:50:- delay took place in recording of the FIR. All material details i.e. name of the accused persons, the place of their arrest, number of the truck, description of the incriminating material, the steps taken by the Investigating Officer at the spot till the dispatch of the ruqqa stand recorded in the ruqqa which formed basis of the FIR recorded without delay. Therefore, in the peculiar circumstances of this case, even if no evidence has been led as to the contents of DD No.13 A i.e. Kayami Mukadma, accused cannot take any advantage therefrom or from decision in Lala Ram and another v. Thakur Singh, reported in 36 (1988) DLT 8; Ramesh Kumar v. The State (Delhi Admn.), 1990 Crl.L.J.255; and Raj Kumar and another v. State (Delhi), 1991 (2) CC Cases 497 (HC) so as to disbelieve the statements of the prosecution witnesses regarding arrest of Raj Kumar and Gurcharan Singh accused and recoveries from them on 9.7.1998 in the manner indicated above.
Learned defence counsel contended that the truck owner was not associated in the investigation or challaned in this case, which fact adversely affects the case of prosecution as it reflects that the Investigating Officer did not conduct fair investigation.
-:51:-
It is true that Investigating Officer came to know about Najakat Ali-the owner of the truck i.e. No. HR 29 B 8520, but he did not join him in the investigation. But in his cross-examination, the witness could be put specific question in this regard. Even otherwise, entire case of the prosecution cannot be thrown away because of omission on the part of the Investigating Officer in conducting investigation on a particular of the case.
Sanctions
10. As regards sanction for prosecution of Raj Kumar and Gurcharan Singh for the offence under Section 25 of Arms Act, there is statement of PW16 Sh.Karnal Singh, then DCP (Crime and Railways). He has proved sanction Ex.PW16/A. It is in the statement the witness that he accorded sanction after having satisfied that on 9.7.98 Raj Kumar and Gurcharan Singh were found in possession of explosives, arms and ammunition without licence and in contravention of Section 3 of the Arms Act. It is also in his statement that the entire file including recovery memos in original was placed before him at the time of his passing of sanction order Ex.PW16/A. He stated in his cross- examination to have not noted any defect in the memos or -:52:- any irregularity regarding timings of preparation of the documents. Learned defence counsel contended that the witness kept column of date of sanction blank, which creates doubt about according of sanction on 6.10.1998. It is true that the witness admitted in his cross-examination that he had instructed his stenos to keep the column of date blank, but this fact does not adversely affect the case of prosecution, particularly when no question was put to the witness in his cross-examination to ascertain from him as to why did he so direct and there is date under his signatures. There is nothing in his statement to suggest that he did not apply mind while according sanction Ex.PW16/A. So it stands duly established that sanction Ex.PW16/A has been duly accorded by the witness for prosecution of Raj Kumar and Gurcharan Singh accused for the offence under the Arms Act.
Then there is statement of PW35 Sh.R.C. Meena, then Deputy Secretary (Home-General), Govt.of NCT Delhi. According to PW35, on receipt of request from DCP(HQ) for consideration for grant of sanction for prosecution of the accused, he placed all the documents before the Lt. Governor of Delhi for grant of sanction for prosecution of accused and that after grant of sanction Ex.PW35/A he conveyed the same -:53:- to DCP (HQ) and DCP (Crime & Railways).
In his cross-examination, the witness denied that Ex.PW35/A is merely a communication letter to the DCP. He volunteered that Ex.PW35/A is a sanction order signed by him on behalf of Lt. Governor of India. It is true that in his cross- examination the Investigating Officer stated to have submitted to their office all the documents, in original, which stand recorded in the sanction Ex.PW35/A, but file reveals that challan was put in Court on 7.10.1998. Sanction Ex.PW35/A was accorded on 28.5.1999. As rightly submitted by learned defence counsel, original documents could not be annexed to the case file sent while obtaining sanction Ex.PW35/A. It appears that in this regard memory of the witness did not help him.
The witness could reply after consulting the record, but no such request was made. Had he consulted, he could easily find that the sanction is available in the file of supplementary challan put in court consequent upon arrest of Rajeev Kohli accused, who was earlier absconding. He could be arrested on 21.5.1999. At the time of presentation of first challan under Section 173 Cr.PC as on 7.10.1998 it was mentioned that sanction for prosecution under Section 7 of -:54:- Explosive Substances Act was being obtained. It was specifically mentioned in the first challan put in court that supplementary report under Section 173(8) Cr.PC shall be put in court as and when the same is received. In the given situation, it can safely be said that original documents could not be made available at the time of obtaining sanction Ex.PW35/A and memory of PW35 did not help him. But the fact remains that PW35 has duly proved sanction accorded by the competent authority for prosecution of Raj Kumar and Gurcharan Singh accused for the offences under Explosive Substances Act. Section 7 of Explosive Substances Act provides for sanction for trial. It is well settled that any such sanction obtained before commencement of trial is valid. In this case, charge was framed on 09.07.2002 whereas the sanction was accorded on 28.05.99. In the given circumstances, obtaining and placing on record of sanction Ex.PW35/A at the time of presentation of supplementary challan in Court does not adversely affect the case of prosecution or extend any benefit to these two accused persons.
Findings
11. In view of the above discussion, this court comes -:55:- to the conclusion that prosecution has fully established that on 9.7.1998 at about 4.30 p.m, at Entry gate of Transport Centre, Punjabi Bagh, Delhi, Raj Kumar and Gurcharan Singh accused unauthorizedly kept in their possession the above referred to fire arms and ammunition and in contravention of the provisions of Arms Act, and as such made themselves liable for an offence under Section 25 of the Arms Act. It also stands established that both of them on the aforesaid date, wrongfully kept in their possession and under their control explosive substance referred to above under the circumstances which give rise to a reasonable suspicion that they were keeping the same in their possession and their control for an unlawful object. These two accused have failed to place on record any material to show that they were keeping in their possession this explosive substance under their control for lawful object, and as such they made themselves liable u/s 5 of Explosive Substances Act. Sections 120 B, 121, 121 A, 122 and 123 read with Sec.120 B of Indian Penal Code.
12. Case of prosecution is that all the accused entered into conspiracy to wage war against the Government of India at the time of Independence Day celebrations in 1998 -:56:- or to overawe by means of criminal force or show of force to the Central Government and for that purpose they procured aforesaid arms, ammunition, explosive substances etc. but they concealed existence of such designs knowingly that such concealment would facilitate waging of such war.
13. In this regard, prosecution has relied upon following circumstantial evidence :
(a) Disclosure statement made by Raj Kumar and Gurcharan Singh accused before PW33 Inspector Ishwar Singh;
(b) Telephonic conversation between Amarjit Singh Sohan and Raj Kumar;
(c) Meetings of Satender Pal Singh, Gursewak Singh and Mohkam Singh accused confined at Tihar Jail with their co-accused at Jail and telephonically .
(d) Recoveries from Naimullah accused (since deceased).
(e) Telephone call made by Raj Kumar accused on 8.7.98 at 10 a.m, from Shashtri Nagar, Batala, Distt.
Gurdaspur.
! " $# % & ('*)+ ,
"*-. / 0
1, 2 435 6 87914
8
: ";# 2<= > @?A CBD :
!? :19EF
35 6 :7G1IHKJML L
In this regard, prosecution has relied upon -:57:- statements of PW13 Inspector Samay Singh, PW19 Inspector Rajender Singh and PW33 Inspector Ishwar Singh.
PW19 Inspector Rajender Singh has also deposed about making of disclosure statements Ex.PW13/K and L. But it may be mentioned here that to prove contents of disclosure statement made by an accused person, it is for the witness to narrate in Court atleast the admissible portion thereof so that the Court may appreciate as to which portion thereof can be read into evidence. But PW13 and PW19 have not deposed even a word about the contents of the disclosure statement.
According to PW33, Raj Kumar accused made disclosure statement that:
(a) the documents recovered from his personal search contained numbers of mobile phones of Gursewak Singh Babla, Satender Pal Singh alias Twinkle and Mohkam Singh, all of whom were inmates of Tihar Jail ;
(b) that whatever material had been brought in the truck, was brought at their instance; and further that the material was given to him by Amarjeet Singh Sohal on 8.7.1998 after he (Raj Kumar) -:58:- made a telephone call from PCO located at Batala, and
(c) that he used to go to Tihar Jail and have meetings with Gursewak Singh.
According to PW33, disclosure statement made by Raj Kumar accused is Ex.PW13/K and that of Gurcharan Singh accused is Ex.PW13/L.
(a) the documents recovered from his personal search contained numbers of mobile phones of Gursewak Singh Babla, Satender Pal Singh alias Twinkle and Mohkam Singh, all of whom were inmates of Tihar Jail:
In this regard, it would be appropriate to refer to the documents recovered from Raj Kumar accused. It is in the statement of PW33 that documents mark A1 to A8 recovered from Raj Kumar accused were seized vide memo Ex.PW13/1 and J. PW13 Inspector Samay Singh and PW19 Inspector Rajender Singh have also deposed about recovery of these documents from Raj Kumar accused. Ultimately, these documents were exhibited as Ex.PW33/DA to DH.
(i) Ex.PW33/DA is a receipt worth Rs.1100/-against purchase of a safari on 7.7.1998 from Patiala by Raj Kumar -:59:- accused. In the course of arguments, no reliance has been placed on this document to suggest as to in which manner this receipt establishes any kind of conspiracy between him and his co-accused. There is nothing on record to suggest that any Safari suitcase was recovered from Raj Kumar or that said suitcase was going to be used for some unlawful purpose. Therefore, this document is of no help to the prosecution except on the point of its recovery from Raj Kumar accused on 9.7.1998.
(ii) Ex.PW33/DB is receipt regarding purchase of diesel from Chaudhary Filling Station, Bidhipur, Bye-pass, GT Road, Jalandhar by Raj Kumar. This receipt goes to show that petrol and diesel for Rs.1940/- were got filled in vehicle No.HR 29 B 8520 on 8.7.1998 from a petrol pump on G.T.Road Jalandhar. From the contents of this document it transpires that the truck reached Delhi on 9.7.1998 via G.T.Road Jalandhar and supports the case of prosecution that Raj Kumar accused was driving the said truck and that this document was seized from Raj Kumar accused on 9.7.1998.
(iii) Ex.PW33/DC is receipt dated 19th of May, in the name of Mr.Raj, regarding advance payment of Rs.400/-for -:60:- room No.203, at Arya Tourist Lodge, 8526, Arakashan Road, Ram Nagar, New Delhi. Receipt dated 19th of May does not help the prosecution to connect any of his co-accused, but supports the case of prosecution that this document in the name of Raj was one of the documents recovered from Raj Kumar accused on 9.7.1998.
(iv) Ex.PW33/DD is a prescription slip dated 18th of April issued by Dr.G.C.Jain of Patiala. This document bears name of Gurcharan Singh Khargosh and Gurmel Singh son of Jagmit Singh, resident of village Belrra, Dhuri, Kukkujhuns, Kake Di Chakki, Dhuri. Gurcharan Singh is co-accused of Raj Kumar. The slip is dated 18th of April. This helps the case of prosecution only regarding its recovery from Raj Kumar accused on 9.7.1998 and that there were links between Raj Kumar and Gurcharan Singh accused.
(v) Ex.PW33/DE is a visiting card written in Punjabi bearing mobile phone numbers 9811196367; 9811131490; 981109352; and 981109935. This visiting card was nodoubt recovered from Raj Kumar accused, but it does not stand established as to when and who wrote the telephone numbers on it, so as to show nexus of the co-accused with him.
(vi) Ex.PW33/DF is personal memorandum slip which -:61:- contains telephone number No.9811131810. It bears name of Golden Bishore Srivastawa. But prosecution has not been able to establish as to who wrote the particulars recorded in it. From this document, prosecution has also not been able to establish any connection between Raj Kumar and his co- accused.
(vii) Ex.PW33/DG is document in Gurmukhi script and bears signatures of Gurcharan Singh as applicant. This application is dated 24.9.1994 and addressed to Senior Superintendent of Police, Sangrur by Gurcharan Singh son of Gurnam Singh, accused for police help in getting his share in landlord property. Since this document belonging to Gurcharan Singh accused was recovered from Raj Kumar accused, it certainly establishes links between the two, but it cannot be said that prosecution has been able to establish any link between Raj Kumar and Gurcharan Singh accused with their co-accused.
(viii) Ex.PW33/DH is an application seeking permission for supply of mineral water and to have interview. Particulars of case titled as State v. Gur Sewak, under Section 392 IPC of P.S.Karol Bagh stand recorded in it. -:62:- Phone No.9811196367 also stands written in it.
It may be mentioned here that specimen handwriting of Raj Kumar accused was obtained on sheets Ex.PW23/5A and Ex.PW23/5B, but no comparison could be made as this document was returned by the expert of FSL with the direction to send more signatures of Raj Kumar for comparison, but this direction could not be complied with, as according to PW33 his request in this regard was declined by the court.
Therefore, it cannot be said that the application Ex.PW33/DH was written by Raj Kumar or that he was going to have interview with Gursewak Singh accused, an inmate of Tihar Jail. Consequently, this document does not help the prosecution to prove any kind of conspiracy between Raj Kumar and Gursewak Singh accused.
NPO
Q R
S2T SVU9WYX Z,[P\ \8X Z9]2S2^ _:` a [PX Z OYS a bcS
S
Z dfeg`,^ hi[ a
j [6Z8k9W j X W,`:Zl`:Z mon `(hqpcr e ` ^s`:Z mo_:r8U UGTAtuX vwe ` aPS8^=[6`8TxO t
dyez` ^ h{[ a j [6Z:kDW |
In this regard, prosecution case was based on the statement of PW3 Surinder Singh son of Sukhjinder Singh, who used to operate STD booth at village Babri Jeewanwala, -:63:- District Gurdaspur, Punjab; PW8 Satnam Singh son of Rupinder Singh of Batala, Punjab; PW12 Ct.Ajit Singh; and PW18 SI Kharag Singh.
While appearing as PW3, the witness did not support the case of prosecution. He denied to have stated that on 25.8.1998 Amarjit Singh Sohal accompanied by police came to his STD Booth or that he had talked from his STD booth with Raju alias Raj Kumar on his mobile phone No.9811099352. Thus, statement of PW3 also does not come to the aid of prosecution.
The other witness PW8 Satnam Singh also did not support the case of prosecution. He denied to have stated before the police that on on 8.7.1998 Amarjit Singh accused made a phone call to Avtar Singh Sulhaina in England or that on 25.8.1998 said Amarjit Singh accompanied by the police came to his STD Booth or that he pointed out said booth. Thus, statement of PW8 is also of no avail to the prosecution. In absence of corroboration from independent source, no reliance can be placed on the statements of PW18 Ct.Ajit Singh and PW 22 SI Kharag Singh regarding pointing out of the said STD Booth and seizure of call details from there on 25.8.1998. Even otherwise, simply from the call details it -:64:- cannot be said as to who called whom and what conversation took place on the given date. As a result, this court comes to the conclusion that prosecution has failed to establish that the material seized from Raj Kumar and Gurcharan Singh accused was supplied to them by Amarjit Singh accused. }~ s8 6 6 ,G 8@/8 6898 : F: 689: s : /¡ ¢ ¢8,: £¢: PY8¤ c¥¦ P,8/§C ¨ C P9¢ ©P ¢8¢8 !,i§G8 88 I 2 «ªG , ¢C8 A¬ Prosecution has relied on the statement of PW11 Mrs. Maana Lokhar, then Assistant Superintendent of Jail No.3. According to her, as per entries in register Ex.PW11/A on 17.04.1998, one person namely Raj, H. No. 618, Ghees Ki Basti, Distt. Patiala had come for interview to meet with accused Gur Sewak lodged in Jail No.3.
On 21.04.98, one Bittu Kohli came to meet Dinesh S/o Sukhbir, Harpal S/o Surjeet Singh, Satender Pal S/o Surjeet Singh and Gursewak S/o Teja Singh and Yogesh S/o Chander Mohan.
On 24.04.1998 one Rajiv Kohli R/o 21/252 West Patel Nagar, Delhi had come to meet Satender Pal S/o Surjit, Harpal S/o Surjit Singh and Yogesh S/o Chander Mohan. -:65:-
On 28.04.1998 Rajiv Kohli had come to meet Satender Pal S/o Surjit, Harpal S/o Surjit and one Nirmal Singh had also come to meet Gursewak.
On 05.05.1998, one Raj Kumar S/o Tek Ram, Patiala, has come too meet Gursewak. On the same day one Narender Singh R/o 4/84, Gali Ahiran, Sadar Bazar, had come to meet Satender Pal S/o Surjit.
On 12.05.1998 Rajinder Kohli had come for interview with Harpal S/o Surjit, Satender Pal S/o Surjit, Yogesh S/o Chander Mohan and Gursewak S/o Teja Singh.
On 19.05.1998, one Raj Kumar had come for interview with Gursewak S/o Teja Singh.
On 22.05.1998 one Raj Kumar had come for interview with Gursewak S/o Teja Singh.
On 29.05.1998 one Raj Kumar had come for interview with Gursewak Singh S/o Teja Singh.
On 30.06.1998 one Dilawar Singh came to visit Gursewak Singh.
On the basis of these entries in register Ex.PW11/A, Learned Addl. Public Prosecutor has argued that since Rajiv Kohli Raj Kumar accused and others named therein met Satender Pal Singh and Gursewak Singh accused -:66:- and others named therein during the period from 17.4.1998 to 30.6.1998, this evidence establishes charge of conspiracy between them.
On the other hand, learned defence counsel have contended that the register having not been properly maintained as per rules and identity of the persons who had interviews with the aforesaid accused persons at jail having not been established, this piece of evidence is of no help to the prosecution.
Case of prosecution is that Gursewak Singh, Satender Pal Singh and Mohkam Singh accused were being confined at Tihar Jail. These accused persons have not denied the factum of their admission in jail at Tihar, but they have denied to have any interview with any of their co- accused. It is true that PW11 has deposed about entries in register Ex.PW11/A meant for interviews with inmates of jail at Tihar during the period from 16.4.1998 to 13.7.1998, but prosecution has failed to examine the concerned employee of the jail who has been maintaining it. PW11 simply produced this register before the police. According to her, register was maintained at PRO room near the gate of Jail No.3. In absence of examination of concerned employee, it cannot be -:67:- said as to who made these entries in it. Furthermore, according to PW11, there is no proof of entry in this register as to whether interview actually took place between the inmates and the visitors. It is in her cross-examination that as per procedure, Asstt. Supdtt.-PRO verifies the entry and sends the visitor to the meeting room where the accused is also called and meeting takes place.
In the given circumstances, it was for the prosecution to establish that meetings took place between Mohkam Singh, Satender Pal Singh and Gurcharan Singh accused with their co-accused and that such and such talk took place between them. According to the witness, meeting takes place in presence of the Asstt.Superintendent of Jail, but visitor has interview -meeting with the inmate who is behind the bars. Prosecution has failed to establish that such and such step was taken to verify the identity of the visitor. Concerned Assistant Supdtt. Of Jail have not been examined to prove the relevant entries of interviews. In absence thereof, it cannot be said, as rightly argued by learned defence counsel, that co-accused of Mohkam Singh, Satender Pal Singh and Gursewak Singh had interviews with them at Tihar Jail.
-:68:-
PW11 tried to explain that the officer on duty is to see that meeting takes place while maintaining discipline. There is nothing in her statement that any indiscipline was noticed by any of the Asstt. Supdtt. of Jail. Prosecution has failed to establish as to what was the subject of conversation between these inmates and the visitors whose names and particulars stand recorded in the relevant entries in register Ex.PW11/A. In view of the above discussion, this court comes to the conclusion that statement of PW11 does not help the prosecution to establish any kind of conspiracy between Mohkam Singh, Satender Pal Singh and Gursewak Singh inmates of Tihar Jail and any of the visitors. Telephonic conversation between Mohkam Singh, Gursewak Singh Satender Pal Singh inmates of Tihar Jail with their co-accused.
14. Case of prosecution is that during their stay from 2.7.1998 to 6.7.1998 at Rachna Hotel, on Ara Kashan Road, Pahar Ganj, Delhi Raj Kumar accused and his collegue had conversation from a mobile phone with one Twinkle. In this regard, mainstay of prosecution was on the statements of -:69:- PW1 Pyare Lal and PW2 Ram Parshad, but none of them has supported the case of prosecution. They were put leading questions by the learned Addl. Public Prosecutor but nothing useful to prosecution could be elicited from them. Therefore, prosecution has failed to establish that Raj Kumar and one of his collegue had any telephonic conversation with Twinkle alias Satender Pal Singh accused.
Recovery of mobile phone, charger, battery, stook with two cavities and case roll from Jail No.3, Tihar.
15. It is case of prosecution that on 30.7.1998, PW34 Inspector Arvind Kumar went to office of DIG(Prisons), Tihar and then collected a mobile phone make Nokia, one damaged charger and battery from Sh.Dheeraj Mathur, Assistant Supdtt. Of Jail No.3, and in turn seized the same vide memo Ex.PW6/A after the stool was turned into a parcel.
He further deposed to have seized one broken stool (in four pieces), a case roll having cavity in the thermocol at its base. Memo Ex.PW9/A was prepared. The case roll was turned into a sealed parcel.
Stool is Ex.P20; case roll is Ex.P21; Mobile phone with battery and charger are Ex.P22 and Ex.P23. -:70:-
It is also in his statement that he seized register Ex.PW5/A from Ms.Suman Lata, Assistant Superintendent of Jail, vide memo Ex.PW5/A. As per entries in this register, Gursewak and Satender Pal Singh accused were lodged in ward No.8, Jail No.3, Tihar. PW5 Ms.Suman Lata has also deposed about production of this register before the police. From the entries in register Ex.PW5/A, as narrated by PW34, it stands established that from 16.3.98 to 5.4.98, from 27.4.98 to 24.5.98 Satender Pal and Gursewak accused were inmates of Cell No.3, Ward No.8, Jail No.3. It may be mentioned here that all these entries should have been got proved by examining the concerned official. When none of the jail officials has deposed about these entries, same cannot be said to have been duly proved. But the fact remains that these accused have not disputed their detention in Cell No.3, Ward No.8, Jail No.3 Tihar.
The question arises as to whether prosecution has been able to connect recovery of mobile phone, battery, charger, case roll and stool to any of these inmates of jail?
As noticed above, PW34 SI Arvind Kumar has not deposed about recovery of the aforesaid items from the inmates of jail. According to him, these were seized by him -:71:- when produced by Officers of the Jail-Sh. Dheeraj Mathur and Sh.Dhananjay Rawat. This takes us to the statements of PW6 Sh.Dheeraj Mathur and PW9 Sh.Dhananjay Rawat.
PW6 has simply deposed about production of mobile phone set bearing No. CE 018844900137/201292181/O having code No.0500581 make Nokia Ex.P1 alongwith battery and charger Ex.P2in damaged condition on 30.7.1998 and their seizure vide memo ex.PW6/A. The witness further stated that these items were not sealed into parcel in his presence. Ordinarily, these should have been sealed to rule out possibility of being tampered with by the police. But the fact remains that these were not sealed. It is not case of prosecution that these items were recovered by him. In his cross-examination, he explained that these were given to him by Sh.Yash Pal Garg, Superintendent Jail No.3.
Case of prosecution is that these items were recovered on 28.7.1998 while counting furniture articles lying in a store near jail Chakkar-internal control room of jail. Sh.Yash Pal Garg PW 21 is also stated to have reached there at that time. According to PW21, on 28.7.98 at about 8.15 p.m on counting the furniture lying in a store near internal control -:72:- room he was informed that on lifting one stool its top got opened and some connected wires were found. On reaching the Chakkar, the witness directed the jail officials to open the stoll. Then it was found having two cavities. In one of the cavities, there was mobile phone and in the second cavity there was a charger with lead. The witness informed his seniors. Further according to him, report was prepared by Sh.Dhananjay Rawat. This brings us to the statement of PW9 Sh.Dhanajay Rawat According to PW9 on 28.7.97 (though it was on 28.7.98), while counting and verifying condemned items lying in the store of jail No.3, Central Jail, Tihar, they noticed a wire coming out of a stool; that when planks of the stool were removed, two cavities were noticed in it; that in one cavity there was a cell phone whereas in the other was a charger with cord. He further deposed that these items were then delivered to Superintendent Jail. The witness identified stool Ex.P20, mobile phone make Nokia Ex.P22 and charger Ex.P23.
Case of prosecution is that one case roll having cavity in its thermocol at its bottom was recovered from ward No.8. As regards recovery of case roll, PW9 deposed that on -:73:- 30.7.98 he produced case roll and it was seized vide memo Ex.PW9/A. According to him, case roll was recovered on 8.7.98 in ward no.8 on search conducted by Sh.Jai Dev Sarangi, DIG (Prisons). Thus statement of PW9 regarding recovery of case roll is not admissible in evidence. In this regard, prosecution should have examined Sh.Jai Dev Sarangi, the concerned DIG(Prisons) or any other officer accompanying him at the time of search, but none of them has been examined for the reasons best known to the prosecution, and as such no reliance can be placed on the version of prosecution about recovery of case roll having a cavity in it so as to connect the same with this case.
So far as recovery of mobile phone set, charger with lead and stool is concerned, it is significant to note that it is not case of prosecution that these were recovered from Cell No.3, Ward No.8 of Jail No.3 where the two inmates Satender Pal Singh and Gursewak Singh were being confined. These were recovered from the internal control room of Jail No.3. There is no explanation as to since when the stool was lying in the internal control room. There is no evidence to suggest if any stool was provided to any of the jail inmates of Cell No.3, Ward No.8. In absence thereof, it cannot be said by any -:74:- stretch of imagination that the stool found containing mobile phone set, battery and charger with lead was ever supplied to Satender Pal Singh and Gursewak Singh or their companion Mohkam Singh. Furthermore, no SIM card could be recovered so as to show that there was possibility of making of calls by any of these three inmates.
During investigation, police seized record regarding call details from private companies, STD Booths and govt. agencies, but it is significant to note that prosecution has failed to establish as to who made those calls and to whom and as to what was the conversation. It is not case of prosecution that any conversation was recorded at any point of time. Even if as per prosecution witness some calls were made from the area where Tihar Jail is situate, for want of any cogent and convincing evidence it cannot be said that any of the aforesaid three inmates-accused made any such call or delivered any message to any of the co-accused. Therefore, the evidence led by the prosecution with regard to phone call details is of no help to the prosecution. ®°¯ ± ²9³8´8µ ¶ ³ ·¹¸º³ »½¼>·¾µ/¿ÁÀDÂ,¸6¿zÃ Ä ÄºÂ,ÅgÂ:´ ´ à »2³8¯ Æ Case of prosecution is that Satender Pal Singh accused made disclosure statement regarding plan for -:75:- release of Gursewak Singh accused on bail by forging documents with the help of Naimullah (accused). According to PW33 Inspector Ishwar Singh, disclosure statements made by Satender Pal Singh accused are Ex.PW23/A and Ex.PW23/B. Naimullah was arrested on 17.7.1998. He too is stated to have made disclosure statement Ex.PW23/F and got recovered documents Ex.PW23/4A to F, which were seized vide memo Ex.PW23/G. It may be mentioned here that Satender Pal Singh and Gursewak Singh accused were inmates of Cell No.3, Ward No.8, Jail No.3. As discussed above, prosecution has failed to lead admissible, cogent and convincing evidence as to who used to have meeting/interview with them in the PRO room of Jail No.3. Therefore, it cannot be said that Naimullah ever met Satender Pal Singh or Gursewak Singh accused during their confinement in jail.
As regards recoveries from the house of Naimulla on 17.7.1998, it is significant to note when there is no material on record to suggest that Satender Pal Singh and Gursewak Singh had any meeting at any point of time to help Gursewak Singh in his release from jail, alleged recoveries from his house do not connect Gursewak Singh or Satender Pal Singh -:76:- with the present case.
Ç°È É ÊYÈ ËºÈ Ì Í:ÎGÏ:ÈÑÐ Ò,Ë6ËyÓMÒ:Ô ÈÖÕ ×ÙØ/ÒVÚÜÛ+Ý ÓÞÒYßMÒ Ð8Ð Ý à È8Ô Î Ïuá â ã:â ä álÒ8å!æ¦çèÒ â6Ó!éKêëß=Î Ó ìFÍ8Ò,à Í8åíß îðïDÒ ñ Ò ß éóò9Ò8å Ò ËôÒ,éðõî àCå¾å0â ö Ý ß¾Ô Ò,à8Ì Ý ß0â
Case of prosecution is that on 8.7.1998 at about 10 a.m, Raj Kumar accused made two local phone calls and the third call on a mobile phone with destination number of Delhi, from Shashtri Nagar, Batala, Distt. Gurdaspur from the STD/PCO of Juj Pal. While appearing in court as PW26, Juj Pal stated so and further that 15/30 days thereafter, police brought Raj Kumar to his STD Booth and he identified him as the person who had made calls from his STD/PCO on 8.7.98. He also deposed about seizure of call details by the police from him. The witness identified his signatures at point B on Ex.PW18/A. A perusal of Ex.PW18/B would reveal that one call was made at No.098111314900. It was for the prosecution to prove as to who was at the receiving end of this mobile phone as on 8.7.98 at 9.54 and as to what conversation took place at the time of said call. In absence of any cogent and convincing evidence, merely on the basis of suspicion, it cannot be said that Raj Kumar made call at the -:77:- said destination number and entered into conspiracy with any of his co accused.
Conclusion
16. In view of the above discussion, this court comes to the conclusion that prosecution has failed to establish that any conspiracy took place at any point of time between Raj Kumar & Gurcharan Singh accused with any of their co- accused or between Satender Pal Singh, Gursewak Singh and Mohkam Singh accused with any of their co-accused during the period these three were lodged at Cell No.3, Ward No.8, Jail No.3, Tihar.
In view of the above discussion, this court also comes to the conclusion that no fact can be said to have been discovered in pursuance of the disclosure statement made by Raj Kumar and Gurcharan Singh accused.
Once it is so held, the argument raised by learned defence counsel about validity of sanction accorded by the prosecution for prosecution of the accused for the offences Sections 120 B, 121, 121 A, 122 and 123 read with Section 120 IPC relegates to the background and needs no discussion.
In view of the above findings, this court holds that -:78:- charge under the heads-pertaining to Sections 120 B, 121, 121 A, 122 and 123 read with Section 120 IPC falls to the ground, so far as all the accused are concerned.
In view of the above discussion, this Court comes to the conclusion that prosecution has fully established its case for an offence U/s. 25 of the Arms Act and 5 of Explosive Substances Act against Raj Kumar and Gurcharan Singh accused. Consequently, Raj Kumar and Gurcharan Singh accused are held guilty of the offence U/s. 25 of the Arms Act and 5 of Explosive Substances Act and convicted thereunder only, but they are acquitted of all other charges. All other accused,namely, Satender Pal Singh, Gursewak @ Babla, Amarjit Singh, Mohkam Singh and Rajiv Kohli are acquitted of all the charges framed against them.
Let Raj Kumar and Gurcharan Singh convict be heard on the point of sentence.
Announced in Open Court on Dated: 12th of November, 2007 [NARINDER KUMAR] Additional Sessions Judge Fast Track Court: Rohini/Delhi -:79:- IN THE COURT OF SH. NARINDER KUMAR ADDL. SESSIONS JUDGE FAST TRACK COURTS ROHINI DELHI SC No. 77 dated 30/01/2006; Old No.50/99 State Versus 1 Raj Kumar S/o Sh. Dheru Ram R/o Village Dheru Tehsil Patiala, Punjab.
2. Gurcharan Singh S/o Sh. Gurnam Singh R/o Village Gakkarwal, Tehsil Dhuri, Distt. Sangrur, Punjab.
FIR No. 545/1998 PS Punjabi Bagh U/s. 5 of Explosive Substance Act & U/s. 25 of the Arms Act.
ORDER ON SENTENCE
13/11/2007
Present: Addl. P.P. for state.
Both the convicts in J.C.
I have heard the convicts and learned Addl. P.P. for State on the point of sentence.
The convicts have prayed for leniency stating that they have already spent about five years in custody during -:80:- investigation, enquiry and trial. Yesterday, learned counsel for both these convicts also submitted for a lenient view on the point of sentence keeping in view the period of detention already undergone by them during investigation, enquiry and trial.
Record reveals that Raj Kumar accused remained in custody, during investigation and enquiry, from 09.07.98 to 07.01.2002 whereas Gurcharan Singh accused remained in custody, during investigation and enquiry from 09.07.98 to 10.01.2003. The judgment of conviction would reveal that heavy quantity of firearm, ammunition and explosive substance including AK56 of 7.62 mm bore, RDX weighing about 18 kgs. and the prohibited ammunition like grenades were recovered from these two convicts. Keeping in view all the facts and circumstances, this Court hereby sentences the convicts as under:
Sentence in respect of Raj Kumar accused S.N Offence Substantiative Fine Sentence I.D of Imprisonment in Rs. payment of fine u/s.
(R.I.) (R.I.)
1) 5 of Six Years Rs.5,000/- Two months
Explosive
Substances
Act
2) 25 of the Six Years Rs.5,000/- Two months
Arms Act
-:81:-
Sentence in respect of Gurcharan Singh accused S.N Offence Substantiative Fine Sentence I.D of Imprisonment in Rs. payment of fine u/s.
(R.I.) (R.I.)
1) 5 of Six Years Rs.5,000/- Two months
Explosive
Substances
Act
2) 25 of the Six Years Rs.5,000/- Two months
Arms Act
Both the substantive sentences of imprisonment shall run concurrently. Benefit of provisions of Section 428 CrPC is extended to convicts.
Copy of this order as well as of judgment be given free of cost to convicts.
Case property be destroyed in accordance with rules on expiry of period of appeal/revision, if none is preferred or subject to decision thereof.
File be consigned to record room.
Announced in open court. (NARINDER KUMAR) Dated: November 13th, 2007 ADDL SESSIONS JUDGE FAST TRACK COURT ROHINI: DELHI