Delhi District Court
State vs Amit Kumar on 22 July, 2011
IN THE COURT OF SH.SURESH CHAND RAJAN
ADDITIONAL SESSIONS JUDGE, FAST TRACK COURT,
(New Delhi & South East District)
PATIALA HOUSE COURTS, NEW DELHI
SC No.08/10
FIR No.248/06
U/s 186/353/307 IPC & 25 r/w 27 Arms Act.
PS Sarita Vihar
State
Vs.
Amit Kumar
S/o Harbir Singh
Village Makhiyali PS New Mandi
District Muzaffarnagar UP
..... Accused
Challan filed on : 10.07.2006
Received by Fast Track Court on:28.08.2010
Reserved for Order on : 06.07.2011
Date of Pronouncement : 22.07.2011
JUDGMENT
Briefly stated the facts of the prosecution case are that on 12.05.06 at about 9 p.m SI Lokender alongwith HC Jogender, HC Liyaquat Ali, Ct. Khalil and Ct. Dharmender were present at thokar no. 89 Shahin bagh where SI Lokender received secret information regarding one person who was carrying illegal arms with him and State Vs.Amit Kumar FIR no.248/06 Page No. 1 of 19 waiting for his associate near Kalindi Kunj Park. This information was apprised to SHO on telephone and on the instruction of SHO raiding party was formed by SI Lokender and proceeded for the spot. On the way 4/5 persons were asked to join the raiding team but they refused and went away without telling their names and addresses. The raiding team members were deputed in different directions. At about 9.20 p.m.secret informer pointed out one person who was asked to stop. But he turned back and started running towards opposite direction. When he saw himself surrounded by the police he made fire on the police party in order to save him. But it did not hit anyone. He was apprehended and on enquiry his name came to know as Amit Kumar. On search one country made pistol was recovered from him alongwith one live cartridge. The katta was taken into possession by the police. The accused was arrested and investigation was done. After completion of investigation, challan has been filed against the accused in the court.
2. This case being triable by the court of session, after committal proceedings, it was committed by the Ld.MM and received by the court of sessions on 23.09.06.
3. The charge against the accused Amit Kumar has been framed u/s 186/353/307 IPC and 25 r/w sec. 27 Arms Act on State Vs.Amit Kumar FIR no.248/06 Page No. 2 of 19 03.03.2008 by Sh Amar Nath, Ld. ASJ to which the accused pleaded not guilty and claimed trial.
4. The prosecution in all has examined as many as 10 witnesses.
5. The evidence against the accused was put to him in his statement recorded u/s 313 Cr.P.C in which he has pleaded his innocence and deposed that he has been falsely implicated in this case. Thereafter the case was fixed for final arguments.
6. I have heard the Ld.counsel for the accused as well as Ld.APP for the State and perused the testimonies of all the PWS and exhibited documents carefully.
7. In view of the arguments advanced by the Ld.APP and Ld.Counsels on behalf of the accused, I have also perused the testimonies of all the PWS. PW1 SI Lokender Singh has deposed that on 12.05.06 he alongwith HC Jogender, HC Liyaquat Ali, Ct. Khalil and Ct. Dharmender were present at Thokar no.8, Shahin bagh where he received secret information regarding a person carrying an illegal arms and waiting for his associate near Kalindi Kunj Park. SHO was informed on telephone. He noticed one person coming from Agra State Vs.Amit Kumar FIR no.248/06 Page No. 3 of 19 Canal coming towards car parking at about 9.20 p.m. He asked him to stop but he started running towards opposite direction and when he again asked him to stop he made fire on the police party after taking out a country made pistol from his right dub but the said fire could not hit any police party member. However, he was apprehended by the police party when he was reloading the pistol. On formal search one live cartridge was recovered from left side pocket of wearing jeans. One fired cartridge was found in the barrel of the country made pistol. The sketch of the pistol and cartridges is Ex.PW2/A and these were seized vide memo Ex.PW1/A. He prepared rukka which is Ex.PW1/A. He identified the country made pistol as Ex.P1, test fired cartridge Ex.P2 and fire cartridge Ex.P3.
8. PW2 HC Liyaquat Ali was with PW1 on patrolling and he has also stated about receiving of secret information by PW1 and reaching at Kalindi Kunj. At about 9.20 p.m they notice one boy coming towards parking of Kalindi Kunj from Agra Canal side. When he came near to them, the secret informer informed SI Lokender that he is the same boy. SI Lokender directed him to stop but he immediately started running. When they started chasing at that time he took out a country made pistol from his right dub and stated making firing on the police party but they saved themselves. He was apprehended by the police party. And country made pistol was State Vs.Amit Kumar FIR no.248/06 Page No. 4 of 19 snatched by SI Lokender and on formal search one live cartridge was recovered from his wearing right side pant pocket. SI Lokender prepared the sketch of country made pistol which is Ex.PW2/A and it was seized vide memo Ex.PW2/B. SI Lokender filled FSL form and prepared rukka and got the case registered. Accused Amit was arrested vide memo Ex.2/C and his personal search was conducted vide memo Ex.Pw2/D. His disclosure statement was recorded which is Ex.PW2/E. The country made pistol is Ex.P1.
9. PW3 HC Joginder Singh was also with PW1 & 2 at the time of apprehension of accused. He has stated that accused was apprehended when he was reloading his country made pistol. The pistol was seized vide memo Ex.PW2/B. FSL form was filled up and seal after use was handed over to him. He has further deposed about arrest, personal search and disclosure statement of accused. He identified the country made pistol.
10. PW4 Sh NS Bundela, DCP has accorded sanction u/s 39 Arms Act which is Ex.PW4/A.
11. PW5 HC Rajbir Singh has deposed that he recorded FIR no.248/06. He produced the FIR register. The copy of FIR is Ex.PW5/A. State Vs.Amit Kumar FIR no.248/06 Page No. 5 of 19
12. PW6 HC Khalil Ahmad has deposed that secret informer on 12.5.06 disclosed to SI Lokender that one vegabond is standing in the parking of Kalindikunj having illegal arms. Thereafter on the direction of SHO they went to the said place where one person was standing and SI Lokender warned him to stop but he turned back and started running backwards towards Agra Canal. Then they tried to chase him he made fire on the police party. When he tried to load second round in the country made pistol they all apprehended him. On his search one live cartridge was recovered from his pant pocket. The sketch of country made pistol is Ex.PW2/A and seized vide memo Ex.PW2/B. He got the case registered. He has handed over the rukka to SI ML Meena who came at the spot. He also deposed about arrest, personal search and disclosure statement of accused. He identified the case property.
13. PW7 HC Dharmender has deposed that on 12.05.2006 at about 9 p.m SI Lokender received secret information that one boy is standing near the park and having illegal arms and he is waiting for his associates to commit some crime. At about 9.20 p.m they saw one boy coming from Agra Canal side and secret informer identified him. SI Lokender gave indication to stop but after seeing the police party he turned back and started running and while running he made fire on State Vs.Amit Kumar FIR no.248/06 Page No. 6 of 19 the police party. But it did not hit any police officer. When he was busy in reloading in that process he was apprehended. On search one live cartridge was recovered from his left side pant pocket. He further deposed about seizure of katta and registration of case.
14. PW8 SI ML Meena is the second IO and he reached at the place of apprehension of accused after registration of the case. He prepared the site plan Ex.PW8/A. He arrested the accused, conducted his personal search and recorded the disclosure statement. He filed the complaint u/s 195 Cr.PC. He sent the case property to FSL. He obtained sanction u/s 39 Arms Act.
15. PW9 Sh Sanjay Tyagi, DCP has deposed that he made complaint u/s 195 Cr.PC for the prosecution of accused Amit. The sanction is Ex.PW9/A.
16. PW10 Sh KC Varshney has deposed that he examined the country made pistol and cartridges and his report is Ex.PW10/A. SI Puran Singh is the second IO and he prepared the site plan Ex.PW10/A. He arrested the accused persons and conducted their personal search. He seized the car vide seizure memo Ex.PW3/U. He deposited the case property in malkhana and thereafter sent to FSL on 30.1.08.
State Vs.Amit Kumar FIR no.248/06 Page No. 7 of 19
17. In the overall analysis of the testimonies of all the witnesses it is revealed that PW1 SI Lokender Singh had received the secret information about availability of accused Amit in Kalindi Kunj where he was allegedly waiting for his associate. PW2 HC Liyaquat Ali, PW3HC Joginder Singh, PW6 HC Khalil Ahmed and PW7 HC Dharmender were joined in the raiding team by PW1 SI Lokender as they were on patrolling duty. Infact the present case incident has taken place in their presence. PW8 SI ML Meena had reached at the spot after apprehension of accused persons and he only arrested the accused persons and conducted their personal search. PW1,2, 3,6 & PW7 are the members of raiding party. There is no public witness in this case. It is well settled law that the testimonies of official witnesses should be scrutinized with due care and caution if there is no public witness.
18. Taking into consideration the evidence led by the prosecution it is revealed that PW1 SI Lokender has received the secret information in this case on 12.05.2006 at about 9 a.m.when he alongwith PW2,3,6 & 7 were present at thokar no. 8 Shaheen Bagh, New Delhi. PW1 SI Lokender, PW2 HC Liyaquat Ali, PW3 HC Joginder Singh, PW6 HC Khalil Ahmed and Pw7 HC Dharamender have stated that secret information was received that one boy is waiting for his associate in Kalindi Kunj. Considering the further State Vs.Amit Kumar FIR no.248/06 Page No. 8 of 19 evidence of Pws, it is revealed that the said boy came later as the above PWS have stated that after reaching at the spot, they saw a boy coming from Agra Canal side. None of the witnesses have deposed that the accused would come to Kalindi Kunj. It means that accused Amit was not present in Kalindi Kunj and he was not already waiting for his associate. PW1,2&3 have stated that they saw one boy coming from Agra canal side at about 9.20 p.m. I have considered the site plan which is Ex.PW8/A. But no electric pole has been shown in the site plan. The accused has allegedly been apprehended at about 9.20 p.m when it was quite dark. The accused was also coming from canal side where there are very less chances of the area being electrified. Since no electric pole has been shown in the site plan it create doubt about light at the spot and if there was no light it was not possible for the police officials to see the accused coming at the distance of 20 to 25 steps. So, identification of accused by secret informer at the distance of 20 to 25 steps seems to be doubtful. Further PW1 SI Lokender has stated that he asked the accused to stop but after seeing the police party the accused started running towards opposite direction and when he again asked him to stop he made fire on the police party after taking out a country made pistol from his right dub but the fire did not hit any police person. PW2 HC Liyaquat has stated that when they started chasing accused started firing on the police party. The version of PW2 regarding chasing the accused has not been State Vs.Amit Kumar FIR no.248/06 Page No. 9 of 19 corroborated by PW1 IO/SI Lokender as he has only asked the accused to stop. PW3 HC Joginder Singh has stated that on the instance of secret informer they conducted the raid. But PW1 IO has not stated about conducting raid and he simply asked the accused to stop. PW3 has stated that after seeing the police party, as he was surrounded by the raiding team members he (accused) immediately started running back and even in that process he took out a country made pistol and made fire pointing towards police party. It clears that accused was not chased as described by PW2. PW6 HC Khalil has stated that SI Lokender disclosed them that one vegabond having illegal arms is standing in the parking of Kalindi Kunj. None of the member of the police has stated about information regarding vegabond. Pw6 has further stated that they reached in the car parking where they found one person standing and SI Lokender warned him to stop but he turned back and started running backwards towards Agra Canal and when they chased him he made fire toward the police party. This version of PW6 that one person was standing in Kalindi Kunj and IO warned him falsify the version of PW1,2,3 that they saw the accused coming from Agra canal side. Since accused was already present in the parking it is not understandable as to why PW1,2&3 have deposed that they saw him coming from the side of Agra Canal. AS per testimony of PW2 the accused was surrounded by the raiding party members and when he was surrounded there was no chance for State Vs.Amit Kumar FIR no.248/06 Page No. 10 of 19 him to run away or to make fire. PW7 HC Dharmender has given different version that SI Lokender gave the indication to accused stop. But after seeing the police he started running . PW2 in cross examination has stated that SI Lokender uttered 'ruko hame talasi leni hai'. It is clear from this version that the accused was in front of SI/IO at that time and then only he would have uttered these words. I have considered the cross examination of these PWS. PW1 has stated that he received secret information at about 9 p.m. Secret informer pointed towards the accused from the distance of 2025 steps . At that time there was street light. The street light has not been shown in the site plan Ex.PW8/A. The fire was made from 1015 steps. He admitted that there is residential colony at the distance of one kilometer. PW2 HC Liyaquat Ali has stated in cross examination that secret informer pointed out the accused persons from the distance of 50 meters while PW1 in cross examination has stated that he pointed out from the distance of 2025 steps. He has further stated that SI Lokender uttered to accused 'ruka hamey talashi leni hai' but SI Lokender himself has not stated so. PW2 has stated that the accused was apprehended at the distance of 510 meters away while PW1 has stated that he was apprehended at the distance of 1520 steps. PW3 has stated in cross examination that the boy was waiting for his associate. Police did not try to confirm as to why he was waiting & which person was to come to meet him. If the accused was coming to meet his associate in order State Vs.Amit Kumar FIR no.248/06 Page No. 11 of 19 to give colour to some crime, the police officials should have waited there and apprehend his associate also. Police even has not tried to find the whereabouts of the associate of accused. Pw6 has stated in cross examination that no DD entry has been placed on file for patrolling duty. Accused made fire towards IO only. But IO PW1 has stated that accused had made fire towards the police party. Pw6 has further stated that when accused made fire some public persons also gathered there. Despite the fact that public persons gathered there, IO has not made genuine efforts to associate public witness in this case. PW7 HC Dharmender has stated that distance between the accused and police officials were about 20 meters when he was asked to stop and all the police officials were together. However, as version of some police officials who were member of the raiding team they had taken their positions at different places. He has further stated that accused had made fire when he turned back. Considering the above statements of members of the raiding party, it is crystal clear that they have made contradictory statements in this case. So, I have also considered the deposition made by other PWS.
19. Pw9 SI ML Meena is the second IO who reached there after apprehension of accused and registration of FIR. He has stated that accused was arrested vide memo Ex.PW2/C. I have perused the said memo. Column no.7 regarding conveying the information of arrest is State Vs.Amit Kumar FIR no.248/06 Page No. 12 of 19 blank and it seems that none was informed about arrest of accused. PW8 has stated that the complaint u/s 195 Cr.PC was filed in the court. PW9 Sh Sanjay Tyagi had made complaint u/s 195 Cr.PC which is Ex.PW9/A. On perusal of the said complaint it is revealed that in the entire complaint no date has been mentioned as to when it was filed. However, there is endorsement on the first page regarding from the court of Ld. ACMM dated 10.7.06. It seems that it was filed on 10.7.06. The present case incident has taken place on 12.05.06. So, the complaint u/s 195 Cr.PC has been filed about about 2 months from the date of incident. PW8 has further stated that he obtained the sanction u/s 39 Arms Act. PW4 Sh. NS Bundela has accorded the said sanction which is Ex.PW4/A. I have considered the sanction. The sanction u/s 39 Arms Act has been granted in this on 7.1.2008 i.e. about 1 year 8 months later. It seems that the sanction u/s 39 Arms Act has been obtained after thought. PW5 is the formal witness being FIR recorder. PW10 has examined the katta and given his report Ex.PW10/A. As per report the country made pistol allegedly recovered from accused was found in working order. But Pw10 has stated in cross examination that the country made pistol was sealed with live cartridge and empty cartridge. There is no evidence on file that the shell of fire made by accused was also recovered from the spot. No seizure memo has been exhibited nor any witness has deposed in this respect. State Vs.Amit Kumar FIR no.248/06 Page No. 13 of 19
20. In this instant case, the police officials PW1,2,3,6 & 7 were on patrolling duty when secret information was received. The prosecution has not tried to exhibit DD no.15 regarding departure of police official for patrolling. It has come in evidence that accused was to come at Kalindi Kunj to meet his associate. But prosecution has not tried to find out as to which associate the accused was to meet and what was their plan. It is not the case of the prosecution that accused is the resident of some nearby area who could easily come to Kalindi Kunj. He is resident of Muzaffarnagar UP. It is also not the case that accused had come on some vehicle. The time of apprehension has been shown as 9 p.m. Further, in this case the fire was made from the distance of 1015 steps. It is unbelievable that fire made from such a short distance that too by a criminal would not hit anyone when 56 police persons were present there. It has also been seen in many cases u/s 186/353/307 IPC that no one sustain any injury and the fire made by accused passes the police officials. Though sustaining injury is not necessary u/s 307 IPC but it is not understandable as to why in case u/s 186/353/307 IPC it always happens. The PWS have made contradictory statements in this case. In the case titled as Udal Vs. State of U.P., 2004Crl.L.J. 2969, the Hon'ble Allahabad High Court has observed that shaky, suspicious and fragile evidence cannot be made the sound basis for conviction of the accused when the prosecution has failed in establishing the guilt of the accused State Vs.Amit Kumar FIR no.248/06 Page No. 14 of 19 convincingly and satisfactorily beyond all reasonable doubt. Similarly, in the case titled as Amrik SinghVs .State of Punjab, 2005 (4) RCR (Criminal) 310, also observed that where witnesses made inconsistent statement in their evidence either at one stage or two stages, testimonies of such witnesses become unreliable and unworthy of credence in the absence of special circumstances and no conviction can be based on evidence of such witnesses.
21. In this case charge has been framed u/s 186/353/307 IPC & 25v r/w sec 27 Arms Act. Sec.186 contemplates obstruction caused to public servant in discharge of public functions. None of the witnesses examined by the prosecution has stated as to how the accused persons have obstructed them in carrying of their duties and what duties they were performing at the time of present case incident. Section 353 IPC contemplates assault or criminal force to deter public servant from discharge of his duty. As per the deposition of each witness they have made contradictory statement about presence of accused a the spot because some witnesses have stated that accused was present there while others stated that they saw accused coming from the side of Agra Canal. Even one PW 6 has stated that accused was surrounded at the spot. So, there is no question of assault or criminal force to deter police officials from discharge of their duties. No injury has been sustained to any of the police official in the hands of accused. It has State Vs.Amit Kumar FIR no.248/06 Page No. 15 of 19 even not stated by the PWS as to how they saved themselves from the fire made by the accused. No seizure of cartridge shell has been effected from the spot. All the PWS have stated that the accused fired on the police party. But they have not stated as towards which particular police officer he made fire. So, section 186/353 IPC does not attract to this case. Section 307 IPC is also not made out because no such allegation has been levelled against the present accused that he caused injury or had intention to cause injury to the police party. No police officials has sustained any injury in this case. It seems that the allegations against the accused in this case are vague which cannot be sustained in the eyes of law.
22. Allegedly country made pistols was recovered from accused in this case. PW3 HC Joginder has stated that seal after use was given to him but PW1 SI Lokender has not corroborated his version. It seems that seal after sealing the pullandas remained with IO only. Further, the prosecution has failed to produced the register no.19 of Malkhana in the court. MHCM has not been examined. So, it could not be established that the case property was deposited in the malkhana. It has been admitted by all the Witnesses adduced by the prosecution that there is residential colony near to the spot and even PW6 HC Khalil Ahmed in cross examination has stated that many public persons also gathered there when accused made fire. But the IO State Vs.Amit Kumar FIR no.248/06 Page No. 16 of 19 has failed to associated any public witness in this case at the time of recovery of alleged country made pistols while the recovery has been effected at about 9.20 p.m which is not the odd hours of the night. An important point has been observed in case Law 1998(8) Supreme Court 435 that in absence of independent evidence merely on basis of police officer's evidence about seizure of pistol and cartridge conviction could not be upheld. It is also well settled law that in case of secret information the investigating agency must join some independent witnesses. This requirement of joining of independent witnesses is only to ensure that what the official witnesses are deposing is also supported by such independent witnesses,but in the present case, the police has failed to join any independent witnesses. None of the witnesses could stated the measurements of the recovered country made pistol. The sanction u/s 39 Arms Act accorded by PW4 has also been taken after about 1 year 8 months from the date of incident as the present case incident is of 12.5.06 and challan was filed on 10.7.06 and sanction was obtained on 7.1.08. It seems that the sanction u/s 39 Arms Act has been obtained after thought. In view of this it seems that no recoveries have been effected from Amit Kumar and it has been falsely planted upon them later on. So, in the evidence available on record, it cannot be believable in respect of recovery of country made pistol from accused Amit. In view of my above discussions, I am of the considered view State Vs.Amit Kumar FIR no.248/06 Page No. 17 of 19 that the prosecution has not been able to prove the charge u/s 25 r/w sec.27 Arms Act against accused Amit. All these facts weakens the prosecution case and creates strong suspicion against the prosecution case.
23. In case Law 2004 (2) CC Cases SC 328 in which in the head note it is stated that : 'Penal Code, 1860, Sec.307 r/w sec.25 and 27Arms Act.Not safe to convict on vague and scanty evidence - Evidence of both witnesses vague & Scanty - Lead/empties not recovered - No definite evidence that accused targeted members of patrolling party - Direction in which shot from revolver travelled and details relating to other logistics not forthcoming - Held: Not safe to convict accused-accused acquitted for offence u/s 307 IPC Appeal part allowed'.
In the case titled as Udal Vs. State of U.P., 2004 Crl. L.J. 2969, the Hon'ble Allahabad High Court has observed that shaky, suspicious and fragile evidence cannot be made the sound basis for conviction of the accused when the prosecution has failed in establishing the guilt of the accused convincingly. 24 It is well settled principle of law in AIR 2003 SC 3609, State of Punjab Vs.Karnail Singh that : "Golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the views which is State Vs.Amit Kumar FIR no.248/06 Page No. 18 of 19 favourable to the accused should be adopted.The paramount consideration of the court is to ensure that miscarriage of justice is prevented. A miscarriage of justice which may arise from the acquittal of the guilty is not less than from the conviction of an innocent".
25. In view of my above discussions of the testimonies of each witness, I am of the view that the prosecution has miserably failed to bring home the guilt of accused in this case and he is entitled to be given the benefit of doubt. I therefore, give the benefit of doubt to accused Amit Kumar and he is acquitted in this case from the charges levelled against them u/s 186/353/307 IPC and 25 r/w sec 27 Arms Act. Accused Amit is in JC. He be released from the jail forthwith if not required in any other case. File be consigned to record room. Announced in the open Court on 22.07.11 (SURESH CHAND RAJAN) ADDL.SESSIONS JUDGE (Fast Track CourtNew Delhi and South East District) NEW DELHI State Vs.Amit Kumar FIR no.248/06 Page No. 19 of 19