Delhi District Court
Case Titled As Harjit Singh vs . State Of Punjab 2002 Scc (Cri) 1518 And on 7 April, 2010
IN THE COURT OF SH. SATINDER KUMAR GAUTAM,
ADDITIONAL SESSIONS JUDGE( WEST-04) , DELHI.
SC NO. 77/1/08
State
Versus
1- Jitender @ Kalu
S/o Sh. Mahesh Kant Lal
R/o H.No. 29, Dhulia Colony,
Alipur, Delhi.
2- Arvind Kumar,
S/o Sh. Baijnath Prasad
R/o Swarrop Nagar Kacchi Colony,
Delhi.
3- Ramesh Kumar,
S/o Sh. Kanhiya Lal,
R/o H. No. 216, Village Siraspur,
Delhi .
4- Shakeel,
S/o Sh. Sultan,
R/o Fauzi Ka Makaan Nehru Enclave.
Alipur, Delhi.
5- Abdul Mazed,
S/o Mohd. Sadiq,
R/o House No. 88, Nehru Enclave,
Alipur, Delhi.
(i)Case arising out of FIR No. 71/07
U/S: 186/353/307/34 IPC
& 25/27/54/59 of Arms
Act.
P.S. Civil Lines
(ii) Date of FIR 22.03.2007
(iii) Date of Institution 13.08.2007
(iv)Date of Final Arguments 06/04/10
(v) Judgment reserved on 06/04/10
(iv) Date of judgment 07/04/10
S.C. No.77/1/08 Page1/12
JUDGMENT
The accused Jitender @ Kalu, Arvind Kumar, Ramesh Kumar, Shakeel and Abdul Mazid are facing trial with the allegation that on 21.3.2007 at about 9.15 pm at the corner of park, near CNG filling station, Ring Road, Deli within the jurisdiction of PS Civil Lines, they all in furtherance of their common intention voluntarily obstructed the police official SI Ajeet Malik, HC Virender, HC Ram Mehar, HC Ajay, HC Narender, Ct. Ramesh, Ct. Azad, Ct. Sushil and Ct. Manoj being public servants in discharge of their public function and also assaulted or used criminal force against the aforesaid police officials in the execution of their duties as such public servant or with intent to deter them or prevent them from discharging their duties as such public servant. The accused Jitender is also facing trial on the allegation on the aforesaid date, time and place was found in possession of one country made pistol loaded with one fired cartridge alongwith 2 live cartridges and used the aforesaid arms and ammunition against the aforesaid police party by firing upon police official Ct. Ramesh with such intention or knowledge and under such circumstances, that if by that act they had caused the death of above said Ct. Ramesh. As such prima facie offence punishable u/s 186/353/307/34 IPC is made out and charge for the said offence has been framed upon all the accused persons , apart from that accused Jitender @ Kalu has also been charged for offence punishable u/s 25/27/54/59 of the Arms Act. To which all the accused persons pleaded not guilty and claimed trial when the same was read over and explained to them.
The incident is of dated 21.3.2007 and the case of the prosecution has been unfolded by the statement of PW7 SI Ajeet Malik, who has testified that on 21/03/2007 while he was posted at the office of Crime Branch at Rohini. At about 7Pm Ct. Ramesh gave him an information with an informer that some boys who are involved in breaking the shutters of the godowns would come in the park at CNG filling station ring road. He informed Insp. Anti Robbery Cell who also apprised ACP concerned and a raiding party was organised consisting of himself, HC S.C. No.77/1/08 Page2/12 Virender, HC Ajay, HC Narender, HC Rammeher, CT. Ramesh, Ct.Azad, Ct.Sushil and Ct. Manoj reached at Majnu ka tila at about 8 pm in a Govt. vehicle. Seven eight persons from public were requested to join but nobody agreed and a trap was laid at the spot at about 8.30 pm. At 9.15Pm some boys came from the side of ring road and sat in the park,informer pointed out towards these boys. On seeing the Police Officials they started running towards ring road. One of them stated Kalu to fire shots otherwise would be apprehended. Then one boy wearing stripe T-shirt fired towards Ct. Ramesh he saved himself. Ct. Ramesh overpowered him his name later found as Jitender alias Kalu. The other police officials apprehended other accused persons. HC Virender apprehended accused Arvind, HC Ajay apprehended accused Ramesh Kumar. Ct. Azad apprehended accused Abdul Mazid and Ct. Sushil apprehended accused Shakeel. Ct. Ramesh given him the Katta snatched from Jitender on checking it was containing an empty cartridge on further search of Jitender from his right side pant pocket two live cartridges were recovered. He prepared sketch of katta and cartridges vide Ex Pw5/A and the katta and cartridges sealed in a Pulanda with seal of AM. FSL form was filled seal after use was given to HC Ajay. The seizure memo Ex Pw5/B prepared. PW7 SI Ajit Malik prepared Tehrir Ex Pw7/A and gave rukka to Ct. Ramesh at about 11.45Pm. Thereafter investigation was taken over by SI Sanjeev who had come at the spot. SI Ajit Malik handed over the relevant papers,Case property and the accused persons to him. SI Sanjeev prepared site plan at his instance. SI Sanjeev interrogated the accused persons and had arrested them. The accused persons had disclosed about various incidents of shutter breaking and theft of rice, food grains, gampere material, pan masala etc. and the accused persons had got recovered the bags of gampere. The disclosure statements of accused persons got recorded vide Ex. Pw5/H,5/G,5/D,5/E,5/F. MHC(M) produce the case property sealed with the seal of court and a Katta and one live Cartridge and two fired Cartridges which are correctly identified by the witnesses and exhibited as Ex P1,P2 and P3.
As regarding the FSL result and sanction of 39 of Arms Act, same is not being disputed by Ld. Counsel for accused persons and statement of Ld. Defence Counsel has also been recorded to this effect.
S.C. No.77/1/08 Page3/12The other witnesses are the police official who have deposed in the similar manner in their examination in chief as deposed by PW7 SI Ajit Malilk.
After conclusion of the testimony of seven prosecution witnesses , prosecution evidence was closed and statement of accused persons was recorded u/s 313 Cr.P.C. They have denied the prosecution evidence as false and incorrect and they have been falsely implicated in this case. All the accused have also refused to lead any evidence in their evidence.
Having heard the submission of Ld. APP and Ld. Counsel for the accused persons and carefully gone through the material on record.
The public prosecutor argued that the prosecution examined all its material witnesses and have completed the unbroken chain of evidence in all respect and their testimony has inspired confidence. Therefore, all the accused persons are liable to be convicted and sentenced in accordance to the charge framed against them.
Per contra, Ld. Counsel for the accused persons submitted that the prosecution witnesses made deposition in stereotyped manner and in their examination in chief sometimes they challan the accused for offence u/s 399/402 IPC and sometimes for the present sections. It is also contended by Ld. Defence Counsel that there are material contradiction regarding the timing to give the information by the informer, reaching of police party at the spot from the police station, apprehension of accused persons, recovery of the arms and ammunition from the accused Jitender @ Kalu. PW7 deposed that "On seeing the Police Officials they started running towards ring road. One of them stated Kalu to fire shots otherwise would be apprehended. Then one boy wearing stripe T- shirt fired towards Ct. Ramesh he saved himself. Ct. Ramesh overpowered him his name later found as Jitender alias Kalu." whereas PW6 H Ramesh stated that " At about 9 pm, five persons came from Ring Road side to the Park and they all started talking to each other. SI Ajit Singh signaled to the staff and thereafter all the five persons tried to run away and while running one of them said "
Kalu Goli Chala Warna Pakde Jaige" Thereafter , Kalu took out Katta from h is right side pocket and fired upon him. Fortunately, he escaped when he was trying to lad the katta again he apprehended S.C. No.77/1/08 Page4/12 him."
It is further contended that there are material contradiction among the deposition of prosecution witnesses and those witnesses are all police officials. No public person was requested or joined in investigation after incident of firing. The other members of the raiding party was not cited as witness nor their statement u/s 161 Cr.P.C was recorded nor any reason was explained by the IO as to why the other members of raiding party i.e. HC Virender , HC Ajay, HC Narender, HC Rammehar, Ct. Azad Ct. Sushil and Ct. Manoj have not cited in the list of witnesses nor they have been examined by the IO during the course of investigation. Though the public witnesses were available but not joined in the investigation at any stage. Under these circumstances accused persons are liable to be acquitted as the present case is false and case property is planted upon the accused persons.
For the purpose of proving the provision of section 186 IPC prosecution has to prove said offence through complaint u/s 195 Cr.P.C. The complaint u/s 195 Cr.P.C is proved by PW3 Jasvir Malik, ACP who stated that on 16.5.2005 he was posted as ACP at Anti Robbery Cell, Crime Branch ,Delhi. On that day, SI Sanjeev Sharma, IO of this case, presented police file alongwith relevant paper before him for getting complaint under section 195 Cr.P.C for prosecuting the accused persons, PW3 ACP Jaivir Malik being a Senior police official of this case, name mentioned in his report issued sanction order mentioning name of accused persons as well as name of witnesses and brief facts of this case including recovery of weapons etc. mention there is vide Ex. PW3/A. As per the complaint u/s 195 Cr.P.C annexed with the challan the facts alleged are that " on 21.3.2006, a secret information was received that a gang of burglars were gather at a park near CNG station Ring Road, Civil Line, Delhi. SI Ajeet Malik passed the information to Insp. Jai Bhagwan, who in turn described all the facts to him and ordered to conduct the raid. After that a raiding party consisting of SI Ajeet Malik. HC Virender, HC Ram Mehar, HC Ajay, HC Narender, Ct. Ramesh, Ct. Azad, Ct. Sushil, Ct. Manoj, HC Rajender was constituted. The SI and other staff left the office for govt. duty after making departure entry of DD No. 15. The team took S.C. No.77/1/08 Page5/12 position around the park. After some time some persons entered the park. Soon t he desperadoes were heard whispering. The informer toed the SI that those were the burglars , who were to be apprehended. On this the raiding party tried to nab the culprits. In the mean time one Jitender Kumar @ Kalu on the castigation by his associates, whispered out his country made pistol and fired at police party. It was specifically pointed towards Ct. Ramesh, but Ct. Ramesh had a narrow escape and without losing time, he pounced upon the assailant and overpowered him. Later all the five accused persons were arrested and one country made pistol, two live rounds and a fired round were recovered....."
Thereafter, name of the accused persons were given and name of the member of the raiding party is mention in the list of witnesses as Ct. Ramesh Kumar, HC Ajay , Ct. Sushil, SI Ajeet Malik. However, the raiding party was consisting of ten police officials and in a challan the accused persons were charge sheeted that " on 21.3.2007 at about 9.15 pm at the corner of park, near CNG filling station, Ring Road, Deli within the jurisdiction of PS Civil Lines, they all in furtherance of their common intention voluntarily obstructed the police official SI Ajeet Malik, HC Virender, HC Ram Mehar, HC Ajay, HC Narender, Ct. Ramesh, Ct. Azad, Ct. Sushil and Ct. Manoj being public servants in discharge of their public function..."
Section 195 Cr.P.C provided that " No Court shall take cognizance of any offence punishable u/s 172 to 188 IPC ; of any abetment of; or attempt to commit, such offence or of any criminal conspiracy to commit such offence, except on the complaint in writing of the public servant concerned or of some other public servant to whom he is administratively subordinate. Where a complaint has been made by a public servant under clause 9a) of sub section 91) any authority to which he is administratively subordinate may order the withdrawal of the complaint and send a copy of such order to the court; and upon its receipt by the court, no further proceedings shall be taken on the complaint.
In the present case offence took place on 21.3.2007. The challan against the accused persons was prepared on 14.5.2007 and S.C. No.77/1/08 Page6/12 challan was placed before the Ld. Trial court on 19.5.2007. The trial court had taken the cognizance on 19.5.2007 vide order that " I take cognizance of the offence u/s 186/353/307/34 IPC and U/s 25 & 27 Arms Act. A complaint u/s 195 Cr.P.C has also been received. The same be attached with the present charge sheet..." The complaint u/s 195 Cr.P.C was being signed on 16.5.2007 and placed in the file when the cognizance was taken. The court will have to act in the interest of justice on a complaint or otherwise. For offences enumerated in section 195(1)(b), the concerned Court must make the complaint. But the court itself cannot take cognizance and try it.
Cognizance of offence under section 186 on police report itself is bad in law and entire trial based on such report is vitiated. Moreover adding an offence punishable u/s 353 IPC in order to circumvent the procedure when case clearly fell within purview of section 186 IIPC was not proper. Further no assault or abuses were directed against the public servant and only decree holder was prevented from entering forcibly in house of accused for taking possession of it, no offence u/s 186 was made further no complaint in writing was made by public servant. Therefore, order and sentence convicting accused u/s 186 cannot be sustained, as observed in (1996) 1 East Cri C 61 (63) (Pat). Where the offence u/s 186 and 353 was committed in course of same transaction, the same cannot be split u p to avoid provisions of section 195 and trial for offences u/s 186/353 without special complaint as required u/s 195(1)(a)(i) is illegal.
Here in the present case no written complaint u/s 186 IPC is given by HC Ramesh Kumar who was allegedly prevented by accused persons in discharge of his duty as such cognizance cannot be taken in view of complaint u/s 195 Cr.P.C. The statement made by HC Ramesh u/s 161 Cr.P.C or 164 Cr.P.C cannot be constituted a written complaint as provided u/s 195 Cr.P.C. This view is also being taken in (1996) 37 DRJ 598 (601) : (1996)63 Delhi LT 104.
In the instant case five accused persons have been charged for offence u/s 186/353 IPC as they have been obstructed as public servant to discharge their official duties. The accused Jitender @ Kalu only obstructed the police official by Shot fire from a country made pistol but no role has been assigned to the other associate as in what manner they S.C. No.77/1/08 Page7/12 have created obstruction to the police official in discharging their public functions. The provision of section 34 of " common intention" cannot be taken added to the other co accused persons.
The word Common Intention is a state of mind of an accused which can be inferred objectively from h is conduct displayed in the course of commission of the crime as also prior and subsequent attendant circumstances. Mere participation in the crime with others is not sufficient to attribute common intention to one of others involved in the crime. The subjective element in common intention, therefore, should be proved by objective test. It is only then that one accused can be made vicariously liable for the acts and deeds of the other co accused, it was observed in a case titled as Harjit Singh Vs. State of Punjab 2002 SCC (Cri) 1518 and in another case titled as Gupteshwar Nath Vs. State of Bihar AIR 1986 SC 1649: 1986 Cr.LJ 1242 it was observed that "when several persona surrounded the deceased and beat him to death, common intention of all of them for murder can be inferred.". In another case titled Bhola Singh Vs. State of Punjab 1995 CrLJ 1830 (P&H) (DB) it has been observed that " The fact that both the accused came to the spot together and after committing the murder left the place together would be sufficient to hold that both of them shared the common intention to commit the murder.
The emphasis in section 34 is on the word 'done'" When criminal act is 'done' by several persons...." It is essential that they join in the actual 'doing' of the act and not merely in planning its perpetration. It has been held that it is essential that in case of an offence involving physical violence, for the application of section 34, such accused must be physically present at the actual commission of crime for the purpose of facilitating accomplishment of criminal act as mentioned in that section.
There is no evidence against the other accused persons as what manner they have been participated in the commission of crime and what role have been assigned. Therefore, mere showing the presence of the other co accused alongwith his associates cannot be held to having common intention. There must be community of design to make the person present liable. The facts that the accused were together at the time of the incident and ran away together are not conclusive evidence of S.C. No.77/1/08 Page8/12 common intention in the absence of any more positive evidence. The mere circumstances of a person being present on an unlawful occasion does not, therefore, raise a presumption of the person'scomplicity in an offence then committed.
As per provision of section 186 IPC the word 'obstruction' connotes some overt act in the nature of violence or show of violence. Persuasion, addressed. A person standing without any threat or obstruction , nor made any obstruction nor verbally objecting to a police party, hence he has not committed any offence for the purpose of attracting the provision of section 186 IPC only obstruction to the public servant in discharge of h is public functions Now regarding the sanctions u/s 39 of the Arms Act which has been proved and has been given by Madhup Tewari, DCP Crime and Railway Delhi vide dated 2.1.2008. However, the incident has been taken place on 21.3.2007. the sanction was granted almost after seven months. Similarly the weapon i.e. country made pistol .315 bore was sent to FSL on 29.4.2007 and the report was received on 12.6.2007.
The law with regard to sanction in respect of offences under section 3 of the Arms Act 1959, may be analytically summarized as follows:
(1)Requisite sanction under section 39 of the Arms Act, 1959 is a condition precedent to the institution of a proceeding in respect of an offence under section 3 of the Arms Act, 1959. (2)Proceeding instituted without such sanction is null and void. (3)A sanction obtained after the institution of proceedings under section 3 of the Arms act, 1959, cannot validate the proceeding with retrospective effect and neither section 465 nor section 464 of the Code of Criminal Procedure can cure the defect.
(4)A proceeding, the institution whereof is herein contemplated means a legal proceeding taken in Court as or towards prosecution in respect of the offence.
(5)If sanction for the prosecution is given subsequent to the institution of proceedings new proceedings should be commenced ab initio.
In case titled as Krishna Singh V. State of Bihar , 2001 S.C. No.77/1/08 Page9/12 (2)BLJ 108 at Page 109(Pat.) wherein it was observed that " No prosecution can be instituted against any person in respect of any offence under section 3, which applies to the instant case also, without the previous sanction of the District Magistrate. Therefore, this mandate of law cannot be taken as a mere formality being sine qua non before institution of any prosecution. This follows that if any prosecution is instituted without sanction of the District Magistrate, that is against law and in such circumstances cognizance of offence would stand barred and if taken has to be declared illegal."
Further for the offence 307 IPC the prosecution has brought the deposition of PW HC Ramesh Kumar who stated that At about 9 pm, five persons came from Ring Road side to the Park and they all started talking to each other. SI Ajit Singh signaled to the staff and thereafter all the five persons tried to run away and while running one of them said " Kalu Goli Chala Warna Pakde Jaige" Thereafter , Kalu took out Katta from his right side pocket and fired upon him. Fortunately, he escaped when he was trying to lad the katta again he apprehended him." PW6 HC Ramesh Kumar in his cross examination stated that "he was not carrying any weapon. The accused Jitender @ Kalu was apprehended from a distance 10-15 steps while running towards Jamuna side." However, PW SI Ajit Malik deposed in his examination that " .... at 9.15 pm some boys came from the side of ring road and sat in the park, informer pointed out towards these boys. On seeing the police they started running towards ring road. Then one boy wearing stripe shirt fired towards Ct. Ramesh he saved himself. Ct. Ramesh overpowered him his name later found as Jitender @ Kalu..." There is no where has stat ed that which of the accused has exhorted the accused Jitender @ Kalu to make the shot fire and if Jitender @ Kalu fired from country made pistol upon Ct. Ramesh that shot fire is not hit on his person then it must be go in the air or hit on the floor but there is no such story made by the prosecution as to which direction the fire shot was gone, It is settled proposition of law that penal statutes has to be set strictly constitute and even if two views in the matter are reasonably possible, the interpretation, which would favour the S.C. No.77/1/08 Page10/12 accused need to be given by the courts.
To justified the conviction u/s 307 IPC intention or knowledge of accused that injury was likely to cause death must be proved. T he intention precedes the act and is to be proved independently of the act. All that is necessary to be established is the intention and if that is established the nature of the act will be immaterial. Unless it can be said that the intention or knowledge of the accused was to cause such bodily injury as would come within one of the four clauses of section 300 IPC he cannot be held guilty of an offence u/s 307 IPC. Similar view is observed in 1994 CriLJ 3526(3530). There is no prior or premeditation to commit the offence the shot was made suddenly which was missed therefore, it cannot be said that accused Jitender @ Kalu has intention or knowledge to commit the crime. The act of the accused Jitender @ Kalu cannot be attributed to the act of the other accused persons. It is an individual act and from the material placed on record and the deposition of the witnesses it is not being made clear as to who has exhorted and where the fire was made with intention to commit murder of the police official. Nor said police official has made any such complaint against the accused Jitender @ Kalu. Under these circumstances ingredients of common intention of all of one of them is lacking. Therefore, it cannot be established to attempt to commit murder by the accused persons and the accused persons are entitled for benefit of doubt.
There were so many members in the raiding party but only Hc Ramesh and SI Ajeet Malik are examined in this case. The other witnesses in whose presence the recovery effect are not examined in this case. The corroboration of testimony of prosecution witnesses was not being done on the material point and throwing the doubt on the prosecution case. The other police official who have apprehended the other accused are the eye and ear of the incident and are the material witnesses were withheld. The said witnesses are the material witnesses certainly prejudice the right of the accused persons and under these circumstances the conviction based on the sole testimony of two witnesses cannot be held justified. Similarly the weapon of offence was recovered by HC Ramesh Kumar from person of accused Jitender @ Kalu but no independent witness even cited at the time of recovery or even during the course of S.C. No.77/1/08 Page11/12 investigation or at the time of conducting the raid despite being available and made contradictory version to this effect. The deposition of the prosecution witnesses which also create dent on the truthfulness of the prosecution story. The witnesses examined and cited cannot be believed and their testimony do not inspire confidence.
Hence, in view of aforesaid discussion and the fact that prosecution witnesses failed to establish the guilt of accused persons within the four corners of offence as alleged as their testimony do not inspire any confidence. The testimony of both the star witnesses is unreliable, untrustworthy and unbelievable. Therefore, the prosecution is failed to prove its case against the accused persons beyond all reasonable doubt. Accordingly all the accused persons namely Jitender @ Kalu S/o Sh. Mahesh Kant Lal, Arvind Kumar S/o Sh. Baijnath Prasad, Ramesh Kumar S/o Sh. Kanhiya Lal, Shakeel S/o Sh. Sultan and Abdul Mazed S/o Mohd. Sadiq are hereby acquitted for the charges levelled against them. Their bail bonds cancelled. Their respective sureties are also stands discharged. Case property if, any be disposed of in accordance with law. File be consigned to Record Room.
ANNOUNCED IN THE OPEN COURT TODAY ON 07.04.2010 (SATINDER KUMAR GAUTAM) ADDITIONAL SESSIONS JUDGE(WEST-04) DELHI S.C. No.77/1/08 Page12/12