Delhi District Court
State vs 1) Rakesh on 12 December, 2012
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In the Court of Ms. Kaveri Baweja
Additional Sessions JudgeFTC (Central)
Tis Hazari Courts: Delhi.
Sessions Case No. : 06/2010
State versus 1) Rakesh
S/o Om Prakash
R/o C95, Amar Colony,
Nangloi, Delhi
2) Bharat
S/o Sh. Shyam Lal
R/o 9603/12 Multani
Dhanda,
Paharganj, New Delhi
3) Pranav
S/o late Amrender Prasad
R/o Village Brail
District Supaul, Bihar
Case arising out of:
FIR No. : 121/02
Police Station : Uttam Nagar
Under Section : 307/186/216/468/471/34 IPC & 25 Arms Act
Judgment reserved on : 05.11.12
Judgment pronounced on : 12.12.12
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JUDGMENT
1. The case in hand was registered on the basis of complaint of SI Raj Kumar of Spl. Staff dated 03.3.02. It is the case of the Prosecution that a source information was received by the officials of PS Spl. Cell to the effect that Sanjeev Verma, Rakesh and Bharat who are involved in case of robbery and murder of one Mohan Lal Bansal are available at house No. 704, Second Floor, Janta Flats, Hastal, Uttam Nagar, Delhi. On the basis of the said source information, a team of police officers headed by SI Raj Kumar including ASI Jai Bhagwan, ASI Kanwar Pal, HC Mukesh, HC Mahavir, Ct. Bachhu Singh, Ct. Jitender, Ct. Sanjay, Ct. Ravish Chand, Ct. Satish Kumar, Ct. Satish along with driver of the vehicle Kapoor Singh reached at house No. 704, Second Floor, Janta Flats, Hastal, Uttam Nagar, Delhi.
2. At about 9.45 PM when the members of the police party knocked at the door of aforesaid house, Accused Bharat came out and revealed upon enquiry that he has no information about Accused Sanjeev Verma and Rakesh. He also revealed that his tenants are residing in the upper portion of his house and when the police party told :3: him that they want to check the said portion, Accused Bharat along with police party went to the said portion. He knocked the door of the house of his tenants and also stated something in code language and door was opened by Sanjeev Verma. When the police revealed their identity Sanjeev Verma entered into house while two other boys present in the room took out their weapons from under the pillows. Sanjeev Verma also took out his weapon from dub and all three of them open firing upon police party. Complainant SI Raj Kumar also fired from his pistol in his defence and asked the Accused to surrender despite the same they continued to fire at the police party and accordingly HC Mukesh, Ct. Bachhu Singh, Ct. Laxman Singh and Ct. Jitender also fired upon them.
3. The complainant also alleged that Sanjeev Verma aimed upon him and fired. However, he managed to escape by sitting down as bullet went over his head in retaliation. SI Raj Kumar again fired and the bullet hit Sanjeev Verma and his companions companion Rakesh and Pranav tried to flee from the spot but when police party tried to over power them, Accused Rakesh fell down from the stairs and sustained injuries on his right leg. SI Raj Kumar, Ct. Bachhu Singh and :4: Ct. Jitender overpowered Accused Rakesh along with his pistol while HC Mukesh and Ct. Laxman caught hold of Accused Pranav who was also having pistol in his hand. One revolver is also alleged to have been recovered from the right hand of Accused Sanjeev Verma who had fallen down in the room in question. Accused Bharat was also apprehended by HC Mahavir while he was trying to run down from the stairs. In the meantime, other police staff including SHO also reached the place of occurrence. The recovered weapons were taken into police possession after preparing their sketch. FSL form was also filled up at the spot. IO also prepared site plan of the spot and recovered one blood stained newspaper from the room in question. The empty shells and led were also recovered from the place of occurrence. The scene of crime was got photographed and the case was registered under Section 307/186/216/353/34 IPC and Section 27 Arms Act.
4. Sanjeev Verma, however, succumbed to his injuries. It is also the case of the Prosecution that disclosure statement of Accused Rakesh, Pranav and Bharat were recorded during the course of investigation and on the basis of pointing out of Accused Rakesh, Rs. :5: 1,65,000/ were recovered at his instance.
5. After completion of investigation, chargesheet was accordingly submitted before the court.
6. Considering the material on record, Accused Rakesh and Pranav were charged for offence punishable under Section 186/353/307 IPC vide order dated 04.3.04. Accused Bharat was separately charged for offence punishable under Section 216 IPC. Further, pursuant to receipt of sanction under Section 39 of Arms Act, Accused Pranav and Rakesh were charged for offence punishable under Section 25 Arms Act vide order dated 14.3.11. Accused persons pleaded not guilty and claimed trial when the charges were read over and explained to them.
7. Prosecution examined as many as 27 witnesses to prove the guilt of Accused persons. Accused in their statement recorded under Section 313 Cr.P.C while claiming innocence and false implication chose to lead evidence in their defence and accordingly, eleven (11) witnesses were examined by the Accused persons in their defence.
8. I have heard detailed arguments advanced by Ld. Defence Counsels and I have also gone through the written arguments filed on :6: behalf of Accused Rakesh and Pranav. I have also considered the arguments made on behalf of State and have carefully gone through the evidence on record.
9. Complainant SI Raj Kumar was examined by the Prosecution as PW25. He deposed that on 03.3.02, he along with SI SI Rajesh Kumar, ASI Jai Bhagwan, ASI Kanwar Pal, HC Mukesh, HC Mahavir, Ct. Bachhu Singh, Laxman and other staff went to house No. 704, Janta Flats, Hastsal, Uttam Nagar where at first floor Accused Bharat (correctly identified) met them. He was interrogated about Accused Sanjeev Verma and Rakesh but he did not give any clue. On inquiry, he took them to second floor of his flat and knocked door of that flat and spoke something in code words while stating that on the second floor, there is his tenant. PW25 further deposed that the person inside the room opened the door and he started grappling with them. When they disclosed their identity, he went inside the room and saw that two more boys were sitting inside the room. They removed the pillows and found two arms lying over there and they started firing on police party.
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10. PW25 further deposed that the person who had opened the door, also started firing on the police party. Police party also started firing in defence. The witness correctly identified Accused Pranav, Bharat and Rakesh. Accused Sanjeev Verma who had opened the door has since expired. He further deposed that Sanjeev Verma had been injured in the firing while Accused Rakesh and Pranav started running towards outside. Accused Rakesh was caught hold by Ct. Bachhu Singh and Ct. Jitender and the pistol was snatched from his hand. Accused Pranav was apprehended by HC Mukesh with the help of other police officials and the pistol in his hand was seized. He further deposed that in the process of running, Accused Rakesh fell down and received injuries on his right leg. After 1015 minutes when the local police reached at the place of incident, he handed over recovered pistol from Accused Rakesh to SI Jitender. The sketch of pistol was prepared which is Ex. PW4/C. Pistol was seized vide seizure memo Ex. PW4/E after being sealed with the seal of 'RKM'. The revolver recovered from Sanjeev Verma was also produced by SI Jitender and on checking, it was found 5 used cartridges and one live cartridge from its cylinder. Its :8: sketch was prepared which is Ex PW4/B and the same was also seized vide memo Ex. PW4/D.
11. He further deposed that pistol recovered from Accused Pranav was handed over to SI Jitender by HC Mukesh and he prepared its sketch Ex. PW4/F and seized the same vide memo Ex. PW4/G.
12. Thereafter, SI Jitender inspected the room and found eleven shells of the used cartridges lying outside the room which were seized vide memo Ex. PW4/L. He further deposed that SI Jitender also took into possession seven used cartridges which were found inside the room vide memo Ex. PW4/M. A piece of paper of Nav Bharat Times dated 01.3.02 containing blood stains was also seized vide memo Ex. PW4/L.
13. As per PW25 SI Jitender recorded his statement Ex. PW4/H and made endorsement which is Ex. PW4/J and sent the rukka through Ct. Ramesh for registration of FIR. He returned to the spot and handed over copy of FIR and rukka to SI Jitender who prepared the site plan at his instance Ex. PW4/K. PW25 further deposed that Accused Rakesh, Pranav and Bharat were arrested by SI Jitender and their :9: personal search memos were prepared which are Ex. PW4/1 to PW4/3. He correctly identified the pistol recovered from Accused Rakesh as Ex. PW4/ PX1. The revolver recovered from Accused Sanjeev (deceased) Ex. P2 and the pistol recovered from Accused Pranav was identified by witness. Pistol is Ex. P1.
14. HC Bachhu who was member of aforesaid police party was examined by the Prosecution as PW26. He also deposed that on 03.3.02 on receipt of secret information, he along with Insp. J. L. Meena, SI Raj Kumar, SI Rajesh Kumar, ASI Jai Bhagwan, ASI Kanwar Pal, HC Mukesh, HC mahavir, Ct. Yatender, Ct. Laxman, Ct. Sanjay, Ct. Satish and Ct. Ravish reached at Flat No. 704, Janta Flats, First Floor, Hastsal, Uttam Nagar, Delhi. He further deposed that Accused Bharat opened the door of house and upon enquiry revealed that some tenants are residing on the upper floor. He accompanied them to upper floor and upon knocking, the door was opened by Sanjeev Verma (deceased). When the identity of the police party was revealed, he immediately went inside and two more persons started firing upon police party. Accused Sanjeev Verma (deceased) also :10: started firing at the police party and the police party also fired in private defence. PW26 also deposed that Sanjeev Verma sustained injuries on account of firing by SI Raj Kumar. Accused Rakesh also sustained injuries on his leg while he was in the process of running from the room and in that process, he slipped on the staircase. Witness also deposed about recovery of aforesaid firearm from the possession of above named Accused persons and correctly identified three Accused persons before court i.e. Accused Rakesh, Bharat and Pranav and the respective firearms recovered from their possession at the time of incident.
15. SI Jitender who reached at the place of incident on 03.3.02 on receipt of DD No. 40B Ex. PW4/A was examined by the Prosecution as PW4. He deposed that he went to Flat No. 704, DDA Hastal, Uttam Nagar, Delhi along with Ct. Ramesh and met SI Raj Kumar, HC Mahavir, Ct. Bachhu Singh, HC Mukesh, SI Rakesh along with other staff were also present there. He deposed that SI Raj Kumar had handed over revolver to him, sketch of which is Ex. PW4/B. He also deposed that on checking, five spent cartridges and one live cartridge were found in its chamber. Sketch of these cartridges were also :11: prepared as Ex. PW4/B. He further deposed that SI Raj Kumar produced another pistol and its sketch is Ex PW4/C. The recovered arms and ammunition were taken into police possession after being sealed with the seal of 'RKM' vide memo Ex. PW4/E. He further deposed that he recorded statement of SI Raj Kumar which is Ex. PW4/H and endorsement is Ex. PW4/J and sent the rukka through Ct. Ramesh for registration of FIR. The site plan was prepared which is Ex. PW4/K. Eleven (11) empty cartridges lying in the balcony were also picked up from the spot and taken into police possession along with one blood stained newspaper. He further deposed that Accused were interrogated and arrested and the disclosure statement of Accused Rakesh Ex. PW4/P was recorded. He led the police party to his house bearing municipal No. C195, Amar Colony, Nangloi, Delhi and got recovered Rs. 1,65,000/ from a box which was kept in a diwan. He further deposed that sixteen wads of currency notes of Rs. 100/ denomination were recovered and one wad of currency notes of Rs. 50/ denomination was also recovered. The wads of currency notes were bearing slip of Federal Bank. The same were taken into police :12: possession vide memo Ex. PW4/Q.
16. PW4 also deposed regarding preparing of inquest papers in regard to deceased Sanjeev Verma and his postmortem examination. He further deposed that clothes of the deceased were sealed in a parcel along with one bullet which was also sealed in a parcel and taken into police possession vide memo Ex. PW4/X. Further, investigation thereafter was taken over by SHO concerned. Witness correctly identified pistol and revolver. He identified the recovered firearm and deposed that pistol Ex. P1 was recovered by SI Raj Kumar in his presence from Accused Pranav while revolver Ex. P2 was recovered from SI Raj Kumar from Sanjeev Verma (deceased). He also correctly identified the pistol recovered from possession of Accused Rakesh and the same was Ex. PW4/PX1. Witness also correctly identified blood stained newspaper which was seized from the place of occurrence and the empty cartridges which was seized from the spot vide memo Ex. PW4/L. He also correctly identified currency notes which were recovered at the instance of Accused Rakesh and the motorcycle which was seized vide memo Ex. PW4/Y. :13:
17. Insp. Rajbir Sharma who at the time of the incident was posted as SHO PS Uttam Nagar was examined as PW17. He deposed that on 03.3.02 on receipt of a wireless message, on reaching flat No. 704, Janta Flats, Second Floor, Hastal, Uttam Nagar, Delhi, SI Jitender along with his staff were already present there. Accused Bharat and Pranav were also present there and that the two Accused persons have been sent to hospital.
18. PW17 also deposed that on 04.3.02 investigation of the case was assigned to him and the investigation was accordingly conducted. Prosecution also relied upon deposition of PW21 Insp. J. L. Meena who deposed that on reaching the spot, he met SI Raj Kumar along with other staff and Accused Rakesh, Bharat and Pranav were also present there. He correctly identified all the Accused persons before the court. He also deposed that lead of the used cartridges were lying inside the room along with one blood stained newspaper of Nav Bharat Times dated 01.3.02. He further deposed that he found some shells of used cartridges lying in balcony adjacent to the said room. SI Raj Kumar handed over one revolver 138 made USA to SI Jitender :14: stating that it was recovered from deceased Sanjeev Verma. SI Raj Kumar also handed over another pistol to SI Jitender stating that it was recovered from Accused Rakesh. Firearms were seized after preparing their sketch. The recovered cartridges were also taken into police possession. Witness further deposed about sending of rukka upon complaint of SI Raj Kumar and also correctly identified case property when produced before the court at the time of his deposition.
19. PW22 HC Mahavir Singh was also relied upon by the Prosecution as he was one of the witnesses who joined the investigation along with SI Raj Kumar, SI Rajesh Kumar, ASI Kanwarpal, ASI Jai Bhagwan, HC Mukesh Kumar, Ct. Bachhu Singh, Ct. Mahender, Ct. Sanjay, Ct. Ravish, Ct. Laxman and Satish wnt to the place of incident on 03.3.02. He deposed regarding apprehension of Accused Bharat, Rakesh and Pranav. He further deposed that Sanjeev Verma was removed to the hospital and correctly identified all the three Accused persons present before the court.
20. Besides the aforesaid witness, Prosecution also examined PW1 K. C. Varshney, Ballistic Expert from FSL, Rohini. His detailed :15: report regarding firearm and ammunition recovered from place of occurrence is Ex. PWA.
21. Prosecution also examined PW6 Sh. Suraj Bhan who was working as SDM Patel Nagar. He deposed that he directed constitution of Medical Board to conduct autopsy on the dead body of Sanjeev Verma and ordered that postmortem on his dead body may be conducted by two doctors of DDU Hospital which order is Ex PW6/A. The two doctors who conducted postmortem on the body of deceased were PW2 and PW8. The postmortem report is Ex. PW2/A.
22. Other formal witness examined by the Prosecution include PW7 who took photographs of place of occurrence. Photographs are Ex. PW7/1 to PW7/30. Negatives of those photographs are Ex. PW7/31 to PW7/60.
23. PW9 HC Satya Pal is MHC(M) while PW11 is Duty Officer. PW15 is DD Writer. PW16 Ram Dhari deposed that he deposited the four parcels from MHC(M) to FSL, Malviya Nagar vide RC No. 47/21. PW19 SI Sheela Devi registered the case FIR No. 62/02 PS Anand Parbat. PW23 HC Shoki Sahni was posted in PCR, West :16: District. He deposed that on 03.3.02 on receipt of call from PCR, West District regarding firing incident in H. No. 704, Second Floor, Hastal, Uttam Nagar, Delhi, he reached there along with his staff where SI Raj Kumar with his staff met there. One injured in unconscious condition was found and he took him to DDU Hospital and got him admitted there. PW5 was summoned from MTNL. He deposed that telephone No. 25642293 was installed in H. No. 704, Janta Flats, Group III, Hastal, Uttam Nagar in the name of Bharat Lal. PW24 proved the MLC of the deceased while PW27 was examined to prove the grant of sanction under Section 39 for prosecution under Section 25 Arms Act. PW10 ACP R. P. Meena proved his complaint under Section 195 CrPC which is Ex. PW10/A.
24. Relying on the aforesaid evidence, Prosecution strongly argued that charges against above named Accused persons have been proved beyond reasonable doubt.
25. On the other hand, Ld. Defence Counsels representing Accused vehemently opposed the case of the case of the Prosecution. Detailed arguments were advanced on behalf of State as well as :17: Defence.
26. It was contended by Ld. Defence Counsel for Accused Rakesh that case of the Prosecution is full of contradictions. It was argued that as per PW17 when he reached the place of occurrence, Accused Bharat and Pranav were present and he was told that other two Accused have been sent to hospital. It was argued that, however, as per PW4 Ct. Jitender, Rakesh had been sent to hospital after about one hour of his reaching the spot and that he had reached the spot before SHO Rajbir Sharma had reached. It was further argued that no public witness was joined in the investigation although the place was surrounded by other Janta Flats. Ld. Counsel for Accused Rakesh argued that the fact that FIR number mentioned on recovery memo on the sketch plan also creates doubt on the case of the Prosecution.
27. The next argument of the Ld. Counsel for Accused Rakesh is that only the blood stained newspaper was found from the place of occurrence and no blood was found in the room as per photograph Ex. PW21/DX1. Hence, the absence of blood on the place of incident also indicates that no encounter had taken place and the case was falsely :18: planted upon Accused persons.
28. The next contention of Ld. Counsel for Accused Rakesh is that there was an unexplained delay in taking parcels into FSL which was taken after a lapse of about 02 months. It was argued that this also shows that case of the Prosecution is manipulated and the Accused have been implicated in this case. The story set up by Prosecution is stated to be unbelievable and concocted. Reliance was also placed on the deposition of DW1, DW2, DW4, DW5 and DW9 in support of the plea of the Defence that Accused Rakesh was picked up from his house by Nangloi police after breaking his feet and has been falsely implicated in this case.
29. I have considered the aforesaid arguments. However, I am unable to subscribe to the same. Apparently, no independent public witness has been cited by the Prosecution to corroborate the deposition of the Prosecution witnesses. However, it is well settled law that where deposition of police witnesses is found to be credible and trustworthy, the same cannot be discarded merely for the reason of nonjoining of public witness. In this regard, reliance may be placed on judgment of :19: Hon'ble Supreme Court titled as Gurjinder Singh Vs State of Punjab 2011 Crl. L. J. 1693 wherein it has been categorically laid down by Hon'ble Apex Court that "the fact that recovery was made in presence of policeman does not make it unreliable and police officials can be reliable witness if court finds him truthful." Similar view was taken by Hon'ble Supreme Court in a recent judgment titled as C. Ronald and Anr. Vs State of U. T. of Andaman and Nocobar Islands 2012 Crl. L. J. 672 wherein it was laid down "There is no principle of law that a statement made in court by a police personnel has to be disbelieved. It may or may not be believed. It is not that all policemen will tell lies. There are good and bad policemen as well. We cannot assume that every statement of a policeman is necessarily false."
30. The contradictions in the deposition of the Prosecution witnesses, as sought to be raised by Ld. Counsel representing Accused Rakesh also not be accepted upon reading the deposition of the Prosecution witnesses in its totality. It has come on record in the statement of PW17 Insp. Rajbir Sharma that only Bharat and Pranav were present at the spot. He further added that two other Accused had :20: already been sent to hospital. PW4 Ct. Jitender though deposed that he had sent Rakesh after one hour of his reaching the spot and that SHO reached the place of occurrence within 510 minutes of his reaching. This, however, is not sufficient in my opinion to reject the entire case of the Prosecution. It is pertinent to note that the fact that deceased Sanjeev Verma and Accused Rakesh were taken to the hospital has been established on record by the evidence led by the Prosecution. The presence of Accused Rakesh at the place of occurrence has been established from the deposition of PW4, PW17, PW21, PW22, PW25 and PW26. The aforesaid witnesses not only deposed regarding presence/role of Accused Rakesh, but also correctly identified him at the time of recording of their deposition before the court. The variance, if any, in the deposition of the Prosecution witnesses, as pointed out by Ld. Counsel for Accused Rakesh is not sufficient, in my opinion, to hold that witnesses are not worthy of reliance or to treat it as a sufficient ground to reject their deposition outrightly. It has been held in judgment of Hon'ble High Court titled as Joginder Vs State reported as 2010 Crl. L. J. 1770 wherein it was laid down "ordinarily :21: a witness cannot be expected to recall accurately the sequence of events which take place in rapid succession or in a short time span. A witness is liable to get confused or mixed up with interrogated later on about the sequence of events which happened on the incident in question".
31. Further, Hon'ble High Court in its recent judgment titled as Rajinder @ Lala and etc. Vs State 2010 Crl. L. J. 15 observed that "witness cannot be expected to possess photographic memory. It is a general handicap attached to all eye witnesses if they fail to speak with precision their evidence is assailed as vague and evasive, on the contrary if they speak of all the events very well and correctly their evidence become vulnerable to be attacked as tutored. Both the approaches are dogmatic and fraught with lack of pragmatism. The testimony of a witness should be viewed from broad angles. It should not be weighed in golden scales, but with cogent standards. By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on the mental screen".
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32. The Hon'ble Apex Court in its judgment titled as Mallappa Siddappa Alakanur and Others Vs State of Karnataka titled as (2009) 14 Supreme Court 748 observed that "contradictions, inconsistencies, exaggerations or embellishments, minor discrepancies or variance in the evidence do not make the Prosecution doubtful. On the other hand, they led credibility to the Prosecution version"
33. Further, the contention of the Defence regarding absence of blood stains at the spot in photographs Ex. PW21/DX1 cannot be said to bely the entire case of the Prosecution, particularly in the light of the fact that blood stained newspaper was recovered from the place of occurrence.
34. Also, considering the facts of the present case, the delay in sending the sealed parcels to FSL in the present case can also not be said to be a sufficient ground to disbelieve the case of the Prosecution. The case of Shambu Vs State of Bihar 2005 Cr. L. J. 1805 relied upon by Ld. Defence Counsel is clearly distinguishable on facts of the present case and had also no application to the facts of the case since said case pertains to delay in sending the seized narcotics for expert :23: analysis. Certainly, the present case stands on a different footing as there was recovery of firearms in the present case. Moreover, Ld. Defence Counsel has failed to establish any manipulation in the case of the Prosecution on account of delay in sending the seized firarms to FSL. It was further contended by Ld. Defence that Accused persons have been falsely implicated in this case. Defence witnesses relied by the Accused Rakesh i.e. DW1 and DW2 have deposed that he was beaten up by Nangloi Police and falsely implicated in this case.
35. DW1 stated that on 03.3.02 at about 12.30 AM, 45 police officials came to his house and took Accused Rakesh along with them. In his crossexamination, however, the witness deposed that he did not make any complaint to any senior police official regarding lifting/taking of Accused Rakesh by police officials and he informed only brother of Accused Rakesh i.e. Rajesh on telephone. However, said Rajesh has not been examined as defence witness. Witness further deposed in his crossexamination that he never visited any Police Station after false implication of Accused Rakesh in the present case to inform the police that Accused Rakesh has been falsely implicated. :24:
36. DW2 Om Prakash who is admittedly father of Accused Rakesh also deposed that Accused Rakesh has been falsely implicated in this case by police officials. In his crossexamination, he also deposed that number of complaints made to various authorities regarding lodging of false implication of Accused. However, none of the said complaints or dispatch have been proved by the Defence and only photocopies of the same have been brought on record and marked during trial.
37. DW4 HC Vinod Kumar deposed that complaint dated 10.6.2000 submitted by Rakesh was received in their office and was sent to DCP (West).
38. DW5 summoned from NHRC categorically deposed in his crossexamination that as per their record complaint dated 04.3.02 was closed and intimation to this regard has been given to complainant vide letter dated 11.6.02.
39. In the light of the above, it is apparent that defence, as sought to be raised by Accused Rakesh regarding his false implication does not stand established. Rather, Prosecution witnesses have :25: deposed that Accused Rakesh was found in possession of pistol on 03.3.02 which was used by him for firing on the police party. It has also been established that Accused Rakesh along with other coAccused fired upon police party headed by SI Raj Kumar. It has also been established that Accused persons fired by pointing towards police party and thereby allegations against Accused have, in my opinion, been proved on record by the Prosecution beyond reasonable doubt.
40. Insofar as Accused Pranav is concerned, it was argued by ld. Defence Counsel that no evidence was led by the Prosecution to establish the factum of receipt of source information by officials of PS Spl. Cell or the departure of police team from the office of Spl. Cell on receipt of such information. Ld. Defence Counsel relied upon judgment titled as Bhugdomal Gangaram & Ors Vs State 1983 Crl. L. J. 1276 in support of the arguments that evidence of police official with regard to receipt of secret information is not admissible in evidence. I have gone through the said judgment. However, despite the fact that even in absence of admissible evidence with regard to receipt of secret information about presence of Accused in H. No. 704, Second Floor, :26: Janta Flat, Hastal, I find that factum of incident in question has been established from the statement of the Prosecution witnesses.
41. It was next contended that in the MLC and the death summary of deceased Sanjeev Verma, it has been recorded that deceased person is 'unknown'. It was contended on behalf of Accused Pranav that this clearly establishes that story of an encounter in which Sanjeev Verma is stated to have expired is manipulated.
42. I have gone through the evidence on record and statement of the Prosecution witnesses. I am, however, of the opinion that merely because name of the deceased was not mentioned in the MLC or the death summary, cannot be said to be sufficient to discard the deposition of the Prosecution witnesses regarding incident of firing, particularly, in view of the fact that despite lengthy crossexamination, their statement remained unimpeached.
43. The next argument of Defence on behalf of Accused Pranav is that there is tampering of evidence with respect to weapon allegedly recovered from Accused and the FSL report. It was contended that as per the case of the Prosecution firearm recovered :27: from the Accused persons were of foreign made. However, as per FSL report Ex. PW1/A katta (countrymade weapon) was received in the FSL on 24.4.02. I am afraid on going through the deposition of the Ballistics Expert PW1 K. C. Varshney and his report, I find that argument of Ld. Defence Counsel to this effect is totally contrary to the record. The Ballistic Expert PW1 K. C. Varshney deposed that parcel No. 1 was containing one pistol of 9 mm calibre which are marked as Ex. F1 while parcel No. 3 was found containing one 'country made revolver' of .380 bore which was marked as Ex. F3 besides one cartridge of same bore and five cartridge cases of same bore. The argument of Ld. Defence Counsel of there being a 'countrymade katta' in the parcel received in FSL, is thus contrary to the record and is liable to be rejected. Moreover, the mere fact that weapon recovered were bearing engraved marking made in USA/China etc. does not, per se imply, that the weapons were foreign made. No evidence has been brought forth to establish make and place of making of firearm recovered from the possession of Accused Pranav.
44. Besides the aforesaid contentions, Ld. Counsel for Accused :28: Pranav also argued that no independent public witness has been examined by the Prosecution and statement of the police witnesses is not reliable. However, on going through the evidence of the Prosecution witnesses particularly PW25 SI Raj Kumar and PW26 HC Bachhu Singh, I find that role of Accused Pranav stands proved beyond reasonable doubt. PW25 complainant SI Raj Kumar clearly deposed that Accused Pranav and Rakesh also opened fire on the police party. Recovery of firearm has also been categorically established by PW26 HC Bachhu Singh who also deposed that "two persons already present in the said room and they immediately made fire on the police party. The said persons who opened the door also started firing on the police party." Both the witnesses correctly identified them as the same persons who had opened firing on the police party. The Defence as sought to be set up by Accused Pranav that he had come from his native village at Bihar on 03.3.02 by Magadh Express train at about 12.30 Noon and from station he went straightway to his house from where he was picked up by the police and falsely implicated has also not been established by way of any cogent evidence. Accordingly, in the light :29: of evidence on record and above discussion, I find that Prosecution has been able to establish the allegations of offence under Section 307/186/353 IPC against Accused Rakesh and Pranav besides offence punishable under Section 25 Arms Act.
45. Insofar as Accused Bharat is concerned, vide order dated 04.3.04 he was charged for offence punishable under Section 216 IPC. However, upon perusal of chargesheet as well as substance of the charge framed against Accused Bharat on 04.3.04, it is apparent that he was infact charged for offence under Section 216 A IPC. Moreover, by considering the charge under Section 216A IPC, Accused Bharat is not likely to be prejudiced in any manner. Section 216A IPC reads as under: "Whoever, knowing or having reason to believe that any persons are about to commit or have recently committed robbery or dacoity, harbours them or any of them, with the intention of facilitating the commission of such robbery or dacoity or of screening them or any of them :30: from punishment, shall be punished with rigorous imprisonment for a term which may extend to seven years, and shall also be liable to fine."
46. On going through the statement of PW25 SI Raj Kumar and PW26 HC Bachhu Singh, I find that both the witnesses have consistently deposed that police party reached at H. No. 704, Second Floor, Janta Flats, Hastal, Delhi on receipt of source information. Accused Bharat was found on the first floor of the said house. He accompanied them upstairs and knocked the door of that flat and spoke something in code language to the occupants. He also wrongly informed PW25 and PW26 that his tenants are residing on the second floor. The said conduct of Accused Bharat apparently indicates that he was knowledge or having reason to believe that Accused Rakesh and Pranav have committed the offence of robbery and knowing the same, Accused Bharat harboured them. It is also pertinent to note that PW25 and PW26 were not crossexamined on behalf of Accused Bharat.
47. In order to establish the connection of Accused Bharat with :31: H. No. 704, Second Floor, Janta Flats, Hastal, Delhi, Prosecution relied upon statement of PW5 N. R. Sharma, Chief Accounts Officer, MTNL, Telephone Exchange, Janakpuri, Delhi who deposed that telephone No. 25642293 has been installed at flat No. 704, Group III, Janta Flats, Hastal in the name of Accused Bharat. PW5 was not crossexamined by Accused Bharat. It is also pertinent to note that in his statement recorded under Section 313 CrPC, Accused Bharat also stated that H. No. 704, Janta Flats, Hastal, Uttam Nagar is owned by his wife Anita who had kept a single tenant on the 2nd floor through a property dealer on execution of a rent agreement. Thus, it is clearly established that flat No. 704, Janta Flats, Hastal, Uttam Nagar was of Accused Bharat. No evidence whatsoever was led to show execution of any rent agreement for induction of any tenant. In view of the aforesaid evidence, I find that offence under Section 216 A IPC stands proved as against Accused Bharat.
48. In the final analysis and on the basis of above discussion, Accused Rakesh and Pranav are convicted for offence under Section 307/186/353 IPC in addition to offence under Section 25 Arms Act :32: while Accused Bharat is convicted for offence under Section 216 A IPC. Let them be heard on the point of sentence.
Announced in the Open Court on 12.12.12 (Kaveri Baweja) Additional Sessions JudgeFTC (Central) Tis Hazari Courts: Delhi.
State Vs. Rakesh etc. FIR No. 121/02 PS : Uttam Nagar SC No. : 06/10 12.12.12 Present : Sh. Rakesh Mehta Learned APP for State.
Accused Rakesh produced in J/c.
Accused Bharat and Pranav on bail.
Vide judgment announced of even date on separate sheets, Accused Rakesh and Pranav are convicted for offence under Section :33: 307/186/353 IPC in addition to offence under Section 25 Arms Act while Accused Bharat is convicted for offence under Section 216 A IPC.
Convict Pranav be taken into custody.
Let convicts be heard on the point of sentence.
Put up on 15.12.12.
(Kaveri Baweja) Additional Sessions JudgeFTC (Central) Tis Hazari Courts: Delhi.
:34::35: In the Court of Ms. Kaveri Baweja Additional Sessions JudgeFTC (Central) Tis Hazari Courts: Delhi.
Sessions Case No. : 06/2010
State versus 1) Rakesh
S/o Om Prakash
R/o C95, Amar Colony,
Nangloi, Delhi
2) Bharat
S/o Sh. Shyam Lal
R/o 9603/12 Multani
Dhanda,
Paharganj, New Delhi
3) Pranav
S/o late Amrender Prasad
R/o Village Brail
District Supaul, Bihar
Case arising out of:
FIR No. : 121/02
Police Station : Uttam Nagar
Under Section : 307/186/216/468/471/34 IPC & 25 Arms Act
Judgment pronounced on : 12.12.12
:36:
ORDER ON SENTENCE:
1. Convicts Rakesh and Pranav have been convicted for offence under Section 307/186/353 IPC in addition to offence under Section 25 Arms Act while Accused Bharat has been convicted for offence under Section 216 A IPC vide judgment dated 12.12.12.
2. I have heard the arguments of above named convicts as well as Ld. APP for the State on the point of sentence.
3. It is submitted by Sh. Hari Om Gupta, Ld. Counsel for convict Bharat that there is no record of any previous conviction against him and that he has already remained in custody for a period of 07 days for offence under Section 216A IPC.
4. It is submitted by Sh. Bharat DubeyLd. Counsel for convict Pranav that he has no record of any previous conviction. He has also submitted that no injury was caused to any member of the police party by the firing at the hands of convict Pranav.
5. It is submitted by Ms Rashmi SinghlaLd. Counsel for convict Rakesh that he is sole bread earner of his family having wife and minor child.
:37:
In view of the submissions made and the facts and circumstances of the case, the above named convicts are sentenced as under: Order on sentence in respect of convict Bharat: For offence under Section 216 A IPC, convict Bharat S/o Sh. Shyam Lal is directed to undergo Rigorous Imprisonment for a period of one year in addition to payment of fine of Rs. 10,000/. In default of payment of fine, he shall undergo Simple Imprisonment for 03 months. Order on sentence in respect of convict Pranav
(i) For offence under Section 307 IPC, convict Pranav S/o late Amrender Prasad is directed to undergo Rigorous Imprisonment for a period of four years in addition to payment of fine of Rs. 5000/. In default of payment of fine, he shall undergo Simple Imprisonment for 06 months.
(ii) For offence under Section 186 IPC, convict Pranav S/o late Amrender Prasad is directed to undergo Rigorous Imprisonment for a period of 03 months in addition to payment of fine of Rs. 500/. In default of payment of fine, he shall undergo Simple Imprisonment for 10 days.
(iii) For offence under Section 353 IPC, convict Pranav S/o late Amrender Prasad is directed to undergo Rigorous Imprisonment for a period of 02 years in addition to payment of fine of Rs. 3000/. In default of payment of fine, he shall undergo Simple Imprisonment for 3 months.
(iv) For offence under Section 25 Arms Act, convict Pranav S/o late :38: Amrender Prasad is directed to undergo Rigorous Imprisonment for a period of 03 years in addition to payment of fine of Rs. 1000/. In default of payment of fine, he shall undergo Simple Imprisonment for 01 month.
Order on sentence in respect of convict Rakesh
(i) For offence under Section 307 IPC, convict Rakesh S/o Om Prakash is directed to undergo Rigorous Imprisonment for a period of four years in addition to payment of fine of Rs. 5000/. In default of payment of fine, he shall undergo Simple Imprisonment for 06 months.
(ii) For offence under Section 186 IPC, convict Rakesh S/o Om Prakash is directed to undergo Rigorous Imprisonment for a period of 03 months in addition to payment of fine of Rs. 500/. In default of payment of fine, he shall undergo Simple Imprisonment for 10 days.
(iii) For offence under Section 353 IPC, convict Rakesh S/o Om Prakash is directed to undergo Rigorous Imprisonment for a period of 02 years in addition to payment of fine of Rs. 3000/. In default of payment of fine, he shall undergo Simple Imprisonment for 3 months.
(iv) For offence under Section 25 Arms Act, convict Rakesh S/o Om Prakash is directed to undergo Rigorous Imprisonment for a period of 03 years in addition to payment of fine of Rs. 1000/. In default of payment of fine, he shall undergo Simple Imprisonment for 01 month.
All the sentences shall run concurrently. Convicts shall be entitled to benefit under Section 428 CrPC.
:39:
Copy of judgment and order on sentence be given to convicts free of cost.
Announced in open court today on 15.12.12 (Kaveri Baweja) Additional Sessions JudgeFTC (Central) Tis Hazari Courts: Delhi.