Delhi District Court
State vs . (1) Narender Kumar @ Naresh on 18 February, 2012
IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS
JUDGEII (NORTHWEST): ROHINI COURTS: DELHI
Sessions Case No. 84/2011
Unique Case ID: 02404R0054202007
State Vs. (1) Narender Kumar @ Naresh
S/o Ramphal, R/o Village Nathupur
PS : Kundli, Distt.: Sonepat,
Haryana (Convicted)
(2) Satish Kumar
S/o Mehar Singh
R/o Village Nathupur,
PS : Kundli, Distt.: Sonepat,
Haryana (Convicted)
(3) Shyam Sunder
S/o Budh Ram
R/o Village Sabali, Distt.: Sonepat,
Haryana, (Convicted)
FIR No. : 187/2005
Under Section : 307/353/186/412/34 Indian Penal Code
& 25/54/59 Arms Act.
Police Station : Sultanpuri
Date of committal to Sessions Court : 16.7.2007
Judgment reserved on : 24.01.2012
Judgment pronounced on : 3.2.2012
State Vs. Narender etc., FIR No. 187/2005, PS Sultanpuri Page 1 of 39
JUDGMENT
Brief Facts:
As per the allegations, on 1.2.2005 at about 6:30 PM at T Point, Pahaladpur, Pooth Kalan road near Sector 23, Rohini the accused Narender Kumar, Satish Kumar and Shyam Sunder in furtherance of their common intention, voluntarily obstructed the police officials i.e. public servants namely ASI Ram Kumar, HC Vijender, Ct. Dilawar Singh, Ct. Ved Parkash, Ct. Veerpal and Ct. Hira Singh, while discharging their public duties. Further, all three accused used criminal force on the above mentioned police party in the execution of their duty or prevent or deter those police officials from lawful discharging their duties as public servant. It is also alleged that while the accused persons were surrounded by the police party, the accused Narender fired by country made pistol towards ASI Ram Kumar but the bullet did not hit him. Thereafter, all three accused were apprehended by the police party at the spot along with the stolen Toyota Corrola Car and one desi katta each were recovered from the possession of accused Narender and Satish while the accused Shyam Sunder was found in possession of dagger. Case of prosecution in brief:
The case of the prosecution in brief is that on 1.2.2005 at about 4:45 PM, ASI Ram Kumar who was posted at Special Team, State Vs. Narender etc., FIR No. 187/2005, PS Sultanpuri Page 2 of 39 Crime Branch, received a secret information that three boys who used to indulge robbery and also used to have weapons with them who had robbed one car from the area of Narela, are present in the said stolen car and would be moving towards Nangloi via Prahladpur, Pooth Kalan at about 6:30 PM, and if raided they could be apprehended. ASI Ram Kumar passed on the secret information to Inspector Hoshiyar Singh who after confirming the information from the secret informer, instructed ASI Ram Kumar to constitute a raiding party. ASI Ram Kumar reduced the said information in writing vide DD No. 11 at about 5 PM. Thereafter, a raiding party was constituted under the supervision of Inspector Hoshiyar Singh comprising of ASI Ram Kumar, HC Vijender Singh, Ct. Dilawar Singh, Ct. Ved Prakash and Ct. Hira Singh. At about 5:30 PM the raiding party along with the secret informer left for the spot in a government vehicle i.e. Tempo Traveller bearing No. DL 1C F 4280 vide DD No. 12 and reached at Sector 23 Rohini at about 5:50 PM. On the way, they also asked some public persons to join the raiding party but none agreed and thereafter without wasting further time they reached the spot i.e. Pooth Prahladpur Road and barricaded the road and started checking the vehicle. At about 6:30, the secret information pointed out towards the vehicle in which three boys were coming and the raiding party surrounded the said vehicle. ASI Ram Kumar introduced himself to those boys as police officer on which of State Vs. Narender etc., FIR No. 187/2005, PS Sultanpuri Page 3 of 39 of those boys (accused Narender) fired towards him with a desi katta which bullet missed ASI Ram Kumar. In the meantime, the boy who was sitting in the side of driver (accused Satish) also took out a desi katta and the boy who was sitting on the back seat also took out a dagger but in the meantime all three boys were overpowered by the members of the raiding party and the kattas and dagger were snatched from them and they were taken into possession along with the Toyota Corrola car bearing no. DL 7CE 3953 which was found to be stolen. Thereafter, the disclosure statements of the accused were recorded wherein they also admitted their involvement in one other case bearing FIR No. 71/2005 of Police Station Narela. Thereafter, they were arrested in this case. After completing the investigations, the charge sheet was filed in the court.
CHARGE:
Ld. Predecessor of this Court settled charges under Section 186/353/307 read with Section 34 Indian Penal Code against the accused Narender, Satish and Shyam Sunder. Further, charge under Section 25 Arms Act was settled against the accused Satish and Shyam Sunder. Charge under Section 27 Arms Act was settled against the accused Narender Kumar. All three accused pleaded not guilty and claimed trial.
State Vs. Narender etc., FIR No. 187/2005, PS Sultanpuri Page 4 of 39 EVIDENCE:
The prosecution in order to discharge the onus upon it, has examined as many as thirteen witnesses:
PW1 HC Vijender Singh, PW5 HC Dilawar Singh, PW7 ASI Ram Kumar, PW10 Veer Pal and PW11 Inspector Hoshiyar Singh are the members of the raiding party. These witnesses have corroborated each other on all material particulars in toto. According to them on 1.2.05 they all were posted in Special Team Crime Branch, Prashant Vihar, Delhi and on that day, an information was received by ASI Ram Kumar through secret informer after which a raiding party was formed under the supervision on Insp. Hoshiar Singh consisting of HC Vijender, ASI Ram Kumar, Ct. Dilawar, Ct. Veer Prakash, Ct. Heera Singh and Driver Ct. Dharampal. Insp. Hoshiar Singh. ASI Ram Kumar briefed all the members of raiding party about the contents of the secret information given to them by secret informer. They have further deposed that thereafter they along with secret informer left the office at about 5.30 p.m. in a tempo traveller of their office bearing no. DL 1CF 4280. According to them two barricades were also loaded by them from their office and thereafter they reached at Sector 23 Rohini at about 5.50 p.m. and investigating officer ASI Ram Kumar asked several passersby to join the raiding party after disclosing them the contents of secret information but none of them joined the State Vs. Narender etc., FIR No. 187/2005, PS Sultanpuri Page 5 of 39 raiding party and left the place without disclosing their names and addresses. The witnesses have deposed that they reached Prahladpur, Pooth Prahladpur T point and both the barricades were unloaded there and put on the road and they took their position as per the directions of Insp. Hoshiar Singh ASI Ram Kumar started checking the vehicles passing on that road at that time. Witnesses have further deposed that at about 6.30 p.m. one Toyota Corrola car came from Prahladlpur side and informer pointed out towards the said car saying that the persons are in the said car. Thereafter, by putting the barricades in front of the said car, the said car was surrounded by them and ASI Ram Kumar disclosed his identity saying that they are officers of the Special Team Crime Branch of Delhi Police and they asked the driver and two other persons sitting in the car to get down from the car. According to them in the meantime, the driver of the car fired towards ASI Ram Kumar but the bullet did not hit ASI Ram Kumar. Thereafter, the persons who were sitting by the side of the driver of that car also took out a country made pistol and tried to point the barrel the police party and the person who was sitting in the back seat of the car took out a dagger but Ct. Dilawar Singh immediately overpowered the person who had fired and was sitting on the driver seat and he snatched the country made pistol from the right hand of the said person, whose name revealed later on as Narinder Kumar @ Naresh. Witness has further deposed that State Vs. Narender etc., FIR No. 187/2005, PS Sultanpuri Page 6 of 39 remaining two person i.e. accused Satish Kumar @ Mota and Shyam Sunder were overpowered by the other members of the party and he along with Ct. Heera Singh overpowered accused Shyam Sunder. According to these witnesses, from the hand of accused Shyam Sunder, one dagger was recovered and from the hand of accused Satish Kumar one country made pistol loaded 315 bore was recovered and country made pistol recovered from the accused Narinder was checked by the Investigating officer and an empty fired cartridge was recovered. Witnesses have further deposed that from his formal search, one live cartridge was recovered from the pocket of his pant and investigating officer prepared the sketch of country made pistol, live cartridge and empty cartridge which is Ex.PW1/A. According to them the same was sealed in a pullanda sealed with the seal of RS and was taken into possession vide memo Ex.PW1/B. According to them the country made pistol recovered from accused Satish was unloaded and one live cartridge was taken out from the country made pistol and investigating officer prepared the sketch of the same which is Ex.PW1/C and was taken into possession after sealing the same in a pullanda with the seal of RS, vide memo Ex.PW1/D and investigating officer prepared the sketch of dragger recovered from the accused of Shyam Sunder which is Ex.PW1/A and was sealed in a pullanda with the seal of RS and was taken into State Vs. Narender etc., FIR No. 187/2005, PS Sultanpuri Page 7 of 39 possession vide memo Ex.PW1/F. According to them the car in which accused had reached at the spot was also taken into possession vide memo Ex.PW1/G. The witnesses have further deposed that thereafter the Investigating officer prepared rukka and handed over to Ct. Ved Prakash at about 9.30pm who took the same to Police Station for the registration of the case and after registration of the case, Ct. Ved Prakash came back at the spot and he handed over the copy of the FIR and rukka to SI Ram Avtar, who had reached at the spot from their branch and further investigation was carried by him. Witnesses have further deposed that ASI Ram Kumar handed over all the three accused persons and the case property including the car to him along with the relevant papers of the case and SI Ram Avtar prepared the site plan of the place of occurrence at the instance of ASI Ram Kumar. According to them all three accused persons were interrogated by him and arrested in this case. The arrest memo of accused Narinder Kumar is Ex.PW1/H. The arrest memo of accused Shyam is Ex.PW1/J. The arrest memo of accused Satish Kumar is Ex.PW1/K. Their personal search was also taken vide memo PW1/L to Ex.PW1/N. Their disclosure statements were also recorded by the Investigating officer and thereafter. They have correctly identified all three accused and also the case property i.e Toyota Corrolla No. DL7CE3953 as the same car which was recovered from the State Vs. Narender etc., FIR No. 187/2005, PS Sultanpuri Page 8 of 39 possession of accused Narender Kumar, Satish Kumar and Shyam Sunder and at the time of apprehension they were sitting in the car and accused Narender was driving the same. The car is Ex.P1. Witness has also correctly identified the dragger as the same which recovered from the possession of accused Shyam Sunder which is Ex.P2. Witness has also correctly identified country made pistol and one empty cartridge as the same which was recovered from the possession of accused Satish which country made pistol is Ex.P3 and cartridge is Ex.P4. He has also correctly identified two empty cartridges and country made pistol that country made pistol and one empty cartridge were recovered from the possession of accused Narender. The country made pistol is Ex.P5, the empty cartridge is Ex.P6 and the empty cartridge is Ex.P7.
In their crossexamination by Ld. Defence counsels also, these witnesses have corroborated their examination in chief. According to them they left the office vide departure entry no. 12 made by ASI Ram Kumar. According to them they followed the route from their office, first they went to Japanese park, then left turn and BSA hospital and thereafter went to straight Sec 23 Rohini. According to HC Vijender he was carrying pistol while the investigating officer was having his investigating officer kit but he does not remember about other raiding party of the members, what State Vs. Narender etc., FIR No. 187/2005, PS Sultanpuri Page 9 of 39 they were carrying. According to these witnesses they parked the Govt. vehicle towards Pooth village near barricade. HC Vijender with Investigating office, Ct. Dilawar and informer were taken position at barricades towards Pooth village while on the other barricade Ct. Veer Pal, Ct. Ved Prakash and Ct. Hira Singh took the position and he does not remember which car or vehicle parked prior to the vehicle of accused persons. The have deposed that investigating officer Ram Kumar prepared first document which was sketch of country made pistol, thereafter, seizure memo and rukka, second Investigating officer SI Ram Avtar prepared the site plan, disclosure statement, arrest memo and personal search memo. The have deposed that all documents were prepared while sitting in Govt. vehicle and he independently does not gave any information after arrest of accused persons to local police and he does not know whether any of the investigating officer gave information to the local police or not. Ct. Veer Pal returned back with the copy of FIR and rukka at about 11.0011.15 pm and they were not having any bullet proof jackets and no police official from the PS Sultan Puri joined the investigation. They have further deposed that all accused persons apprehended simultaneously. These witnesses have denied the suggestion that they never joined the raiding party or that nothing was recovered in their presence from the accused persons or that they have signed the memos while sitting at Crime Branch or that the State Vs. Narender etc., FIR No. 187/2005, PS Sultanpuri Page 10 of 39 accused Narender was already in their custody while lifting from his house on 30.1.05 and accused Satish was lifted from Sindhu Border and falsely implicated in this case or that being a police official.
PW2 Dr. Joy Tirkey has deposed that on 20.04.06, he was posted as ACP, Inter State Cell, Crime Branch, Chanakyapuri, Delhi and on that day, he had gone through the file and statement of witness and after satisfying himself, he made a complaint u/s 195 Cr.PC to the CMM and he also filed a list of witness along with his complaint for initiating action against the accused Narender Kumar, Satish Kumar and Shyam Sunder. His complaint in this regard is Ex.PW2/A. He has not been cross examined on behalf of the accused persons and his entire testimony has gone uncontroverted.
PW3 Neeraj Thakur has deposed that on 26.10.06, he was posted as Deputy Commissioner of Police, Crime and Railways, Delhi. On that day, copy of the police file of this case containing the statements of witnesses, FSL result produced by his SO before him and he had gone through the statement of witnesses, sketch of the weapon and FSL result and after satisfying himself, he had granted Sanction Under Section 39 Arms Act against the accused Narender Kumar @ Naresh, Satish Kumar @ Mota. The sanction is Ex.PW3/A bearing my signature at point A. He has not been cross examined on behalf of the accused persons and his entire testimony has gone uncontroverted.
State Vs. Narender etc., FIR No. 187/2005, PS Sultanpuri Page 11 of 39
PW4 HC Mahender has deposed that on 01.02.05 he was posted as MHC (M) at PS Sultan Puri. On that day SI Ram Avtar of Crime Branch deposited one car DL7CE 3953 and two sealed parcels containing country made pistol with cartridges, one sealed parcel containing dragger, three personal search of accused persons along with FSL form of case FIR No. 187/05. He made entry in this regard at serial No. 8357 in Reg. No. 19. copy of which is Ex.PW4/A running in 12 pages. He has further deposed that on 10.02.05 the car No. DL7CE 3953 was sent to PS Narela through SI Suraj Bhan vide RC No. 682/21 for depositing in case FIR No. 71/05 u/s 392/397/34 IPC of PS Narela. He made entry in this regard at point X on ExPW4/A. Further, on 26.08.05 two sealed parcels containing the one country made pistol and cartridge in each were sent to FSL Rohini through Ct. Devender vide RC No. 396/21 which entry he made at point X1 on ExPW4/A. He has further deposed that on 18.09.06, Ct. Sanjay Kumar deposited two sealed parcels with result of FSL with him and he made entry in this regard at point X2 on Ex.PW4/A. He has brought RC register containing entry no. 682/21 dated 10.02.05, copy of RC is Ex.PW4/B. He has also brought original RC No. 396/21 dated 26.08.05. Photocopy of the RC is ExPW4/C. According to him the case property was not tempered by anybody till it remained in his custody.
State Vs. Narender etc., FIR No. 187/2005, PS Sultanpuri Page 12 of 39
In his cross examination by Ld. Defence Counsel, the witness has deposed that now he does not remember the time when SI Ram Avtar deposited the case property with him. He has denied the suggestion that entries are manipulated at the instance of Investigating officer.
PW6 HC Sanjay has deposed that on 18.09.06, he was posted at Inter State Cell,Chanakaya Puri, New Delhi as Constable. On that day, Investigating officer had given an authority letter to him for depositing the case property to FSL, Rohini. He handed over the authority letter to FSL, Rohini and officials of the FSL handed over to sealed parcels and results to him. According to him he reached PS Sultan Puri and handed over result and sealed parcels to MHC(M) after which the MHC(M) handed over result to him for delivering the same to the Investigating officer.
In his cross examination by Ld. Defence Counsel, the witness has deposed that now he does not remember DD number of his departure entry from the Chanakaya Puri and arrival entry at PS Sultan Puri, Delhi and has voluntarily added that he got made the same. He has denied the suggestion that he never went to FSL for collecting the result and sealed parcels or that the same was not depositing with MHC (M), PS Sultan Puri.
PW8 Ct. Devender has been examined by way of affidavit which is is Ex.PW8/1 bearing his signatures at points A State Vs. Narender etc., FIR No. 187/2005, PS Sultanpuri Page 13 of 39 and B. According to him on 26.8.2005 he took the exhibits of the present case from the MHC (M) and deposited in the FSL Rohini. He has not been cross examined on behalf of the accused and during this period the exhibits remained intact and were not tempered.
PW9 SI Kartar Singh has been examined by way of affidavit which is Ex.PW9/1 bearing his signatures at points A and B. According to him on 30.1.2005 he was posted as duty officer and on receipt of the rukka from SI Suraj Bhan, he recorded the FIR No. 71/05 copy of which is Ex.PW9/A bearing his signatures at point A. He has not been cross examined on behalf of the accused.
PW12 Inspector Ram Avtar has deposed that on the intervening night of 01/02.02.2005 he was posted at Crime Branch as as SI. On that day, further investigation of the case was handed over to him. He reached the spot i.e. Pooth Kalan, Prahlad Pur More, Rohini T point where ASI Ram Kumar, Insp. Hoshiyar Singh, HC Vijender, Ct. Dilawar, Ct. Ved Prakash, Ct. Hira Singh, Driver / Ct. Dharam Pal met him. He has further deposed that ASI Ram Kumar handed over three accused persons namely Narender Kumar, Satish Kumar and Shyam sunder and three sealed parcels duly sealed with the seal of RS containing desi katta's, cartridges and dagger stated to have been recovered from the accused persons. According to him ASI Ram kumar shown the aforesaid car stated that the aforesaid accused persons had come in the said car after which he inspected State Vs. Narender etc., FIR No. 187/2005, PS Sultanpuri Page 14 of 39 the spot and prepared site plan which is Ex. PW12/A at the instance of ASI Ram kumar. According to the witness, Ct. Veer Pal had also come to the spot with copy of FIR and original rukka and same were handed over to him after which he interrogated all the accused persons and arrested them in this case. He has further deposed that the accused persons were kept in muffled face since they were required to be put for TIP in case no. 71/05 of PS Narela. According to him during interrogation all the accused persons had disclosed that the aforesaid car has been robbed from the area of Narela on 30.01.05. The witness has deposed that when ASI Ram Kumar verified this fact from the Police Station Narela, he learnt that the said car was involved in case FIR no. 71/05 of PS Narela. Thereafter he informed the concerned PS regarding recovery of aforesaid car and also recorded the disclosure statement of accused Narender Kumar @ Naresh which is Ex PW12/B which disclosure statement was corroborated by other two accused namely Satish and Shyam Sunder therefore he took there signatures on the disclosure statement of Narender Kumar Ex.PW12/B. He thereafter sent the accused to Ambedkar hospital through Ct. Veer Pal, Ct. Dilawar and Ct. Ved Prakash where their medical examination was got done. On 26.08.2005, he sent the exhibits to FSL Rohini through Ct. Devender Kumar vide RC No. 396/21/05. Thereafter, on on 20.04.06, he collected the complaint u/s 195 CrPC to prosecute all the accused State Vs. Narender etc., FIR No. 187/2005, PS Sultanpuri Page 15 of 39 persons, from Dr. Joy Tirkey the then ACP, Inter State cell, Crime branch, Chanakya Puri which is Ex. PW2/A. Thereafter, he collected the FSL result which is Ex. PW12/C and also the sanction U/s 39 Arms act from Sh. Neeraj Thakur, the then DCP, Crime and Railways, Delhi which is Ex.PW3/A. He has correctly identified the accused persons as Narender Kumar, Satish Kumar and Shyam Sunder by name and faces also. He has also identified Toyota Corrolla car bearing No. DL 7C E 3953 ExP1 In his cross examination by Ld. Defence Counsel, the witness, has deposed that he received information regarding this incident and he had made departure entry before leaving crime branch office vide DD No. 14 and reached the spot at about 9.20 pm. No public person was found present there when he reached the spot. According to him when he reached the spot barricades were not installed on the road. He has deposed that first of all, he recorded the disclosure statement of accused Narender and no disclosure statement of other accused persons was recorded as they adopted the disclosure statement of accused Narender. According to him all writing work was done while sitting inside the tempo traveller with the help of a search light. They remained at the spot till about 2 am and he came back to his office at about 3.15 am and made arrival entry at that time vide DD No. 16. He has denied the suggestion that he did not conduct the investigation of this case in a fair manner. He State Vs. Narender etc., FIR No. 187/2005, PS Sultanpuri Page 16 of 39 has further denied that Narender was already in custody after being lifted from his house on 30.01.05 and accused Satish was lifted from Singhu border and falsely implicated in this case. The witness has further denied that the accused Shyam Sunder was arrested on the next date.
PW13 Sh. Puneet Puri, Senior Scientific Officer, (Ballistics) FSL, Rohini, has deposed that on 26.8.2005, two sealed parcels sealed with the seal of RS of this present case were received in FSL and the same were marked to him for examination. He deposed that on opening the first parcel one country made pistol .315 bore, one 8 mm / .315 cartridge and one 8 mm / .315 cartridge case were found and were marked as Exhibits F1, A1 and EC1 respectively by him. He further deposed that on opening the second parcel one country made pistol .315 bore and one 8 mm / .315 cartridge were found and were marked as Exhibits F2 and A2 respectively by him.
The witness has further deposed that on examination, it was found that the country made pistol marked Ex.F1 was in working order and test fire conducted successfully by using the cartridge marked Ex.A1 and the test fired cartridge case was marked as TC1. According to him the country made pistol marked Ex.F2 was in working order and test fire was conducted successfully by using the cartridge marked Ex.A2 and the test fired cartridge case State Vs. Narender etc., FIR No. 187/2005, PS Sultanpuri Page 17 of 39 was marked as TC2. He further deposed that the cartridge case marked Ex.EC1 was a fired empty cartridge and had been fired through the country made pistol marked Ex.F1 as the individual characteristics of firing pin marks and breech face marks present on Ex.EC1 and on test fired cartridge case marked TC1 were found identical when examined under the comparison microscope. He has further deposed that the country made pistols marked Ex.F1 and F2 were fire arms and the cartridge / cartridge case were ammunition as defined in Arms Act 1959. His detailed report in this regard is Ex.PW12/C which bears his signatures at point A and A1. This witness has not been cross examined on behalf of the accused persons and his entire testimonies has gone uncontroverted. Statement of Accused & Defence Evidence:
After completing the prosecution evidence, statements of the accused persons under Section 313 Code of Criminal Procedure were recorded wherein all the incriminating evidence was put to them which they have denied.
According to accused Narender Kumar he has been falsely implicated in this case after being lifted from his house on 30.1.2005. The accused Satish Kumar has stated that he has been falsely implicated in this case after being lifted from Singhu border.
The accused Shyam Sunder has stated that he has been falsely State Vs. Narender etc., FIR No. 187/2005, PS Sultanpuri Page 18 of 39 implicated in this case after being lifted from his house on 31.1.2005. However, they did not examine any witness in defence. FINDINGS:
I have heard the arguments advanced before me by the Ld. Addl. PP for the State and the Ld. Defence Counsel appearing on behalf of the accused. I have also considered the testimonies of the various witnesses examined by the prosecution and have gone through the written memorandum of arguments filed by the parties. Identity of the accused:
The case of the prosecution is that on 1.2.2005 a secret information was received by ASI Ram Kumar that three boys who used to indulge robbery and also used to have weapons with them would be going in a robbed car towards Nangloi via Prahladpur, Pooth Kalan, if raised can be apprehended. ASI Ram Kumar passed on the secret information to senior officer and thereafter on instructions a raiding party was constituted under the supervision of Inspector Hoshiyar Singh comprising of ASI Ram Kumar, HC Vijender Singh, Ct. Dilawar Singh, Ct. Ved Prakash and Ct. Hira Singh after which they left the office at about 5:30 PM in Govt. Vehicle (Tempo Traveller) along with two barricades. On the way several passersbys were asked to join the raiding party but they refused. Thereafter, the raiding party reached the spot i.e. Pooth State Vs. Narender etc., FIR No. 187/2005, PS Sultanpuri Page 19 of 39 Prahladpur Road and took their position and barricading the road ASI Ram Kumar started checking the vehicles and at about 6:30 on the pointing out of the secret informer, the said car was stopped with the help of the barricades and the raiding party surrounded the said vehicle. Thereafter, ASI Ram Kumar disclosed his identity to the three persons sitting inside the said car and asked the driver and two other persons to get down on which the driver of the car fired towards ASI Ram Kumar and the other person sitting with the driver also took out the pistol and tried to fire upon the police party and the third person sitting on the backseat of the car took out a dagger but in the meantime all three boys were overpowered by the members of the raiding party. After detailed interrogation, the name of the boy who was driving the vehicle and fired towards ASI Ram Kumar was revealed as Narender Kumar; the name of the boy who was sitting with the driver and who had took out the pistol was revealed as Satish Kumar and the person sitting on the backseat of the car and who took out the dagger was revealed as Shyam Sunder. All three accused i.e. Narender, Satish and Shyam Sunder have been duly identified in the court by the police witnesses / members of the raiding party i.e. PW1 HC Vijender, PW5 HC Dilwar Singh, PW7 ASI Ram Kumar, PW10 HC Veer Pal and PW11 Inspector Hoshiyar Singh. In view of the above it is established that all three accused had been apprehended at the spot itself while and therefore the identity of State Vs. Narender etc., FIR No. 187/2005, PS Sultanpuri Page 20 of 39 the accused stands proved.
Sanction under Section 195 Cr.PC against the accused:
The Sanction under Section 195 Cr.PC against the accused Narender, Satish and Shyam Sunder has been duly proved by the Dr. Joy Tirkey, the then ACP Special Investigating Team Crime Brach, vide Ex.PW2/A, the witness has not been cross examined on behalf of the accused despite opportunity and the entire testimony has gone uncontroverted.
Sanction under Section 39 Arms Act against the accused:
Sh. Neeraj Thakur, the then Addl. Commissioner of Police, Crime Branch has proved having grant the Sanction under Section 39 Arms Act in respect of the fire arms recovered from the possession of the accused Narender Kumar and Satish Kumar which sanction is Ex.PW3/A. The testimonies of Sh. Neeraj Thakur (PW3) has gone uncontroverted and I hereby hold that the Sanction under Section 39 Arms Act, stands proved and established. Forensic Evidence:
The fire arms recovered from the accused Narender Kumar and Satish Kumar have been sent to the FSL and PW13 Puneet Puri, Senior Scientific Officer, FSL has duly proved that on 26.8.2005 two sealed parcels were received in FSL which were marked to him for examination. He has stated that on opening the State Vs. Narender etc., FIR No. 187/2005, PS Sultanpuri Page 21 of 39 first parcel one country made pistol .315" bore, one 8 mm / .315 cartridge and one 8 mm / .315 cartridge case were found and were marked as Exhibits F1, A1 and EC1 respectively by him. He has further stated that on opening the second parcel, one country made pistol .315 bore and one 8 mm / .315 cartridge were found and were marked as Exhibits F2 and A2 respectively by him. He has proved that both the fire arms and ammunitions sent to the FSL in this case were in working order and test fires conducted successfully. He has further proved that the cartridge case marked Ex.EC1 was a fired empty cartridge and had been fired through the country made pistol marked Ex.F1 as the individual characteristics of firing pin marks and breech face marks present on Ex.EC1 and on test fired cartridge case marked TC1 were found identical when examined under the comparison microscope. According to him, the country made pistols marked Ex.F1 and F2 were fire arms and the cartridge / cartridge case were ammunition as defined in Arms Act 1959. He has given his detailed report in this regard is Ex.PW12/C which bears his signatures at point A and A1. His entire testimonies has gone uncontroverted as despite opportunity he has not been cross examined on behalf of the accused. In view of the above, I hold that the prosecution has successfully proved and established beyond reasonable doubt that the fire arms recovered from the accused Narender Kumar was arms and ammunitions and therefore his is State Vs. Narender etc., FIR No. 187/2005, PS Sultanpuri Page 22 of 39 liable for the offence under Section 25/27/54/59 Arms Act, whereas the accused accused Satish is liable for offence under Section 25/54/59 Arms Act.
Recovery of dagger for accused Shyam Sunder:
It is the case of the prosecution that at the time of the arrest when the vehicle was surrounded by the police party, the accused Shyam Sunder was sitting backseat of the car when both boys sitting in front seats of the car fired by fire arms towards the police party while the accused Shyam Sunder also took out a dagger. The prosecution witnesses have duly proved the khakha of the said dagger prepared by ASI Ram Avtar (PW7) which Khakha is Ex.PW1/E bearing the signatures of HC Vijender Singh at point A, that of Ct. Dilawar Singh at point B and that of ASI Ram Kumar at point C. The prosecution witnesses have also proved the measurement of the dagger its total length being 26 cm, length of blade as 17.5 cm, width of blade as 2.3 cm and length of handle as 8.5 cm. The said dagger Ex.P2 has been duly identified by the police witnesses in the court. In this regard a judicial notice is taken of the Gazette Notification dated 17.2.1979 bearing No.F.13/203/78 Home (C) providing that any any person found in possession of a knife open or close with any of the mechanical device with a blade of 7.62 or more in length and 1.72 cms or more in breadth, in public State Vs. Narender etc., FIR No. 187/2005, PS Sultanpuri Page 23 of 39 places should be regulated. The knife so recovered from the accused Shyam Sunder is clearly beyond the prescribed notified limits. I, therefore, hold the accused accused Shyam Sunder is liable for the offence under Section 25/54/59 of Arms Act.
Allegations against the accused:
It is the case of the prosecution that after the nakabandi was held at the spot and the accused were stopped by the police, the driver of the car i.e. accused Narender pulled out a country made pistol and fired towards ASI Ram Kumar which bullet did not hit anybody; while the accused Satish who was sitting next to Narender inside the car also out a barrel and the accused Shyam Sunder who was sitting in the backseat of the car took out a dagger, but in the meantime Ct. Dilawar Singh immediately overpowered the accused Narender and snatched the country made pistol from his hand. HC Vijender Singh with the help of Ct. Heera Singh overpowered the accused Shyam Sunder and snatched the dagger from his hand while the accused Satish Kumar was overpowered by the Ct. Ved and Ct Veerpal and snatched the country made pistol from his hand.
In this regard I may observe that in their testimonies before the court, PW1 HC Vijender, PW5 HC Dilawar Singh, PW7 ASI Ram Kumar and PW10 Veerpal, have deposed in a parrot like manner and corroborated each other on all material particulars on the with regard to constitution of police party, attempt of ASI Ram State Vs. Narender etc., FIR No. 187/2005, PS Sultanpuri Page 24 of 39 Kumar to join the public persons, putting of barricades on the road and stopping the vehicle on the pointing out of the secret informer, firing by accused Narender towards ASI Ram Kumar and thereafter apprehension of all three accused at the spot and recovery of fire arms from the possession of accused Narender and Satish and dagger from the possession of accused Shyam Sunder.
Defence of the accused:
The only defence of the accused is that they have been falsely implicated in the present case, however, despite specific opportunity, no witness has been examined by them. I may observe that the alleged incident had taken place on 1.2.2005 at about 6:30PM on a heavy motorable road and a large number of public persons would have been present over their but incidentally no public person could be joined by the raiding party particularly when there was prior information with regard to alleged dreaded criminals. It is unbelievable that the accused having fired upon ASI Ram Kumar which fire allegedly missed him, no public person particularly the passerbyes would have stopped to notice what had transpired. Even otherwise ASI Ram Kumar was standing in a very close range and had accused Narender would have fired upon him. There is no reason to doubt the testimonies of these police witnesses in so far as the apprehension of the accused along with the arms and the stolen vehicle (in case FIR No. 71/05 PS Narela) is concerned, but in so far State Vs. Narender etc., FIR No. 187/2005, PS Sultanpuri Page 25 of 39 as the allegations with regard to the fire upon ASI Ram Kumar is concerned, it appears doubtful.
I may observe that as per the provisions of Section 307 Indian Penal Code whoever does any act with such intention or knowledge and under such circumstances that, if he by that act caused death, he would be guilty of murder, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
To constitute an offence under Section 307 IPC, it is sufficient if there is an intent coupled with some overt act in execution thereof present. It is not essential that bodily injury capable of causing death should have been inflicted. Although the nature of injury actually caused may often give considerable assistance in coming to a finding as to the intention of the accused, such intention may also be deduced from other circumstances and may even in some cases, be ascertained without any reference at all to actual wounds. The section makes a distinction between the act of the accused and its result, if any. The Court has to see whether the act, irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in the section. An attempt in order to be criminal need not be the penultimate act. It is sufficient in law, if there is present an intent coupled with some over act in execution thereof [Ref.: Vipin Bihari Vs. State of MP reported State Vs. Narender etc., FIR No. 187/2005, PS Sultanpuri Page 26 of 39 in 2006 (8) SCC 799; Bappa @ Bapu Vs. State of Maharastra reported in 2004 (6) SCC 485; State of Maharastra Vs. Kashi Rao & Ors. reported in 2003 (10) SCC 434; Hari Mohan Mandal Vs. State of Jharkhand reported in 2004 (12) SCC 220 and Surender Kumar Sharma Vs. State reported in 2010 (III) AD (Delhi) 198]. This being the legal position, intention can be deduced not only from the nature of injuries caused but also from other circumstances.
In the present case neither the knowledge nor the intention has been reflected. None of the members of the police party had received any injury which could have cause death in the ordinary course of nature. Therefore, under these circumstances I hereby hold that the intention and knowledge as contemplated under the provisions of Section 299 and 300 Indian Penal Code are not made out. This being so I hereby hold that the prosecution has miserably failed to prove and substantiate the necessary ingredients of the offence under Section 307 Indian Penal Code against the accused Narender Kumar @ Naresh, Satish Kumar and Shyam Sunder. However, the accused are liable only for the offence under Section 186/353 Indian Penal Code and 25/27/54/59 Arms Act. FINAL CONCLUSION:
In the case of Sharad Birdhichand Sarda Vs. State of Maharastra, AIR 1984 SC 1622, the Apex Court has laid down the State Vs. Narender etc., FIR No. 187/2005, PS Sultanpuri Page 27 of 39 tests which are prerequisites before conviction should be recorded, which are as under:
1. The circumstances from which the conclusion of guilt is to be drawn should be fully established.
The circumstances concerned 'must or should' and not 'may be' established;
2. The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;
3. The circumstances should be of conclusive nature and tendency;
4. They should exclude every possible hypothesis except the one to be proved; and
5. There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
Applying the above principles of law to the facts of present case, it is evident that the investigations conducted including the documents prepared in the present case have been substantially proved by the police witnesses including the investigating officer. The identity of all three accused Narender, Satish and Shyam Sunder stands established and proved. It stands established that on the date of incident i.e. on 1.2.2005 ASI Ram Kumar who was posted at Special Team, Crime Branch received a secret information that three State Vs. Narender etc., FIR No. 187/2005, PS Sultanpuri Page 28 of 39 persons having weapons with them and had robbed one car from the area of Narela, would come towards Nangloi via Pahladpur, Pooth Kalan. It also stands established that on receiving this information a raiding party comprising of ASI Ram Kumar, HC Vijender Singh, Ct. Dilawar Singh, Ct. Ved Prakash and Ct. Hira Singh was constituted under the supervision of Inspector Hoshiyar Singh. It further stands established that the police party reached at T Point, Pahladpur, Pooth Kalan Road, near Sector 23, Rohini and after putting the barricades on the roads they started checking the vehicles. It also stands established that at about 6:30 PM on the pointing out of the secret informer, a Toyota Corrola car bearing no. DL7CE3953 was stopped. It further stands established that all three accused were found sitting the accused Narender was found driving the vehicle and accused Satish was sitting next him while the accused Shyam Sunder was sitting backside of the car. It stands established that when ASI Ram Kumar disclosed his identity to them, the accused Narender and Satish took out country made pistols while the accused Shyam Sunder took out a dagger in his hand but immediately thereafter the members of the raiding party overpowered all three accused persons and snatched the arms and ammunitions from them. It also stands proved that the car in which the accused persons were found travelling, was a stolen vehicle in respect of which another FIR bearing No. 71/2005 Police Station State Vs. Narender etc., FIR No. 187/2005, PS Sultanpuri Page 29 of 39 Narela had already been registered. However, the intention and knowledge as contemplated under the provisions of Section 299 and 300 Indian Penal Code are not made out and hence I hold that the prosecution has miserably failed to prove and substantiate the necessary ingredients of the offence under Section 307 Indian Penal Code against the accused Narender Kumar @ Naresh, Satish Kumar and Shyam Sunder. Further, the use of firearm i.e. country made pistol by the accused Narender Kumar has not been proved beyond reasonable doubt but the possession of the same has been duly proved by the prosecution.
The prosecution has proved the identity of the accused, the manner in which the offence has been committed, place of commission of the offence, the investigation including the documents prepared. There is nothing which could shatter the veracity of the prosecution witnesses or falsify the claim of the prosecution. All the prosecution witnesses have materially supported the prosecution case and the testimonies of the prosecution witnesses do not suffer from any infirmity, inconsistency or contradiction and are consistent and corroborative. The evidence of the prosecution witnesses is natural and trustworthy and corroborated by circumstantial and forensic evidence on record and the witnesses of the prosecution have been able to built up a continuous link. State Vs. Narender etc., FIR No. 187/2005, PS Sultanpuri Page 30 of 39
In view of the above, I hereby hold that the prosecution has been able to prove and substantiate the allegations against the accused Narender Kumar @ Naresh, Satish Kumar and Shyam Sunder of having voluntarily obstructed the police officials i.e. public servants namely ASI Ram Kumar, HC Vijender, Ct. Dilaver Singh, Ct. Ved Prakash, Ct. Veerpal and Ct. Hira Singh while discharging their public duties; having used criminal force on the police party in the execution of their duty or prevent or deter them from the lawful discharging their duties as public servants and also of having firearms and a dagger and hence they are held guilty of the offence under Section 186 read with 353 Indian Penal Code and also under Section 25 of Arms Act for which they are accordingly convicted.
Be listed for arguments on sentence on 8.2.2012.
Announced in the open court (Dr. KAMINI LAU) Dated: 3.2.2012 ASJ (NW)II: ROHINI State Vs. Narender etc., FIR No. 187/2005, PS Sultanpuri Page 31 of 39 IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS JUDGEII (NORTHWEST): ROHINI COURTS: DELHI Sessions Case No. 84/2011 Unique Case ID: 02404R0054202007 State Vs. (1) Narender Kumar @ Naresh S/o Ramphal, R/o Village Nathupur PS : Kundli, Distt.: Sonepat, Haryana (Convicted) (2) Satish Kumar S/o Mehar Singh R/o Village Nathupur, PS : Kundli, Distt.: Sonepat, Haryana (Convicted) (3) Shyam Sunder S/o Budh Ram R/o Village Sabali, Distt.: Sonepat, Haryana, (Convicted) FIR No. : 187/2005 Under Section : 307/353/186/412/34 Indian Penal Code & 25/54/59 Arms Act. Police Station : Sultanpuri Date of conviction: 3.2.2012 Arguments heard on: 8.2.2012/15.2.2012 Date of sentence: 18.2.2012 State Vs. Narender etc., FIR No. 187/2005, PS Sultanpuri Page 32 of 39 APPEARANCE: Present: Sh. D.K. Singh, Addl. Public Prosecutor for the State.
All the three convicts Narender Kumar, Satish Kumar and Shyam Sunder in judicial custody with Sh. Rajneesh Antil Advocate/ Amicus Curiae.
ORDER ON SENTENCE:
Vide my detailed judgment dated 3.2.2012, the accused Narender Kumar, Satish Kumar and Shyam Sunder have been held guilty of the offence under Section 186 read with 353 Indian Penal Code and also under Section 25 of Arms Act.
The case of the prosecution is that on the date of incident i.e. on 1.2.2005 ASI Ram Kumar who was posted at Special Team, Crime Branch received a secret information that three persons having weapons with them and had robbed one car from the area of Narela, would come towards Nangloi via Pahladpur, Pooth Kalan. On receiving this information a raiding party comprising of ASI Ram Kumar, HC Vijender Singh, Ct. Dilawar Singh, Ct. Ved Prakash and Ct. Hira Singh was constituted under the supervision of Inspector Hoshiyar Singh. The police party reached at T Point, Pahladpur, Pooth Kalan Road, near Sector 23, Rohini and after putting the barricades on the roads they started checking the vehicles. At about 6:30 PM on the pointing out of the secret State Vs. Narender etc., FIR No. 187/2005, PS Sultanpuri Page 33 of 39 informer, a Toyota Corolla car bearing no. DL7CE3953 was stopped in which all the three accused were found sitting, the accused Narender was found driving the vehicle and accused Satish was sitting next him while the accused Shyam Sunder was sitting backside of the car. When ASI Ram Kumar disclosed his identity to them, the accused Narender fired towards ASI Ram Kumar but the bullet did not hit him and the accused Satish also took out country made pistols while the accused Shyam Sunder took out a dagger in his hand but immediately thereafter the members of the raiding party overpowered all three accused persons and snatched the arms and ammunitions from them. The car in which the accused persons were found travelling, was a stolen vehicle in respect of which another FIR bearing No. 71/2005 Police Station Narela had already been registered.
However, on the basis of the testimonies of the various witnesses examined by the prosecution, this Court has held that the intention and knowledge as contemplated under the provisions of Section 299 and 300 Indian Penal Code are not made out and hence the prosecution has miserably failed to prove and substantiate the necessary ingredients of the offence under Section 307 Indian Penal Code against the accused Narender Kumar @ Naresh, Satish Kumar and Shyam Sunder. Further, the use of firearm i.e. country made pistol by the accused Narender Kumar has not been proved beyond State Vs. Narender etc., FIR No. 187/2005, PS Sultanpuri Page 34 of 39 reasonable doubt but the possession of the same has been duly proved by the prosecution. Therefore, it was held by this court that the prosecution has been able to prove and substantiate the allegations against the accused Narender Kumar @ Naresh, Satish Kumar and Shyam Sunder of having voluntarily obstructed the police officials i.e. public servants namely ASI Ram Kumar, HC Vijender, Ct. Dilaver Singh, Ct. Ved Prakash, Ct. Veerpal and Ct. Hira Singh while discharging their public duties; having used criminal force on the police party in the execution of their duty or prevent or deter them from the lawful discharging their duties as public servants and also of being in possession of firearms and a dagger due to which reason they were convicted for the offence under Section 186 read with 353 Indian Penal Code and also under Section 25 of Arms Act.
Heard arguments of the point of sentence. The convict Narender Kumar aged about 29 years is a Matriculate and is a driver by profession. He has a family comprising of aged parents, three sisters, wife and two sons. He is also involved in two other cases i.e. FIR No. 71/07, Police Station Narela, under Sections 392/397/34 IPC wherein he has been held guilty of the offence under Section 392 read with 411 Indian Penal Code and FIR No. 319/04, Police Station Chidawa Jhunjhunu (Rajastan), under State Vs. Narender etc., FIR No. 187/2005, PS Sultanpuri Page 35 of 39 Sections 392/398/120B IPC. He has already remained in judicial custody in this case for about one month and twenty five days.
The convict Satish Kumar aged about 24 years is a Matriculate and is having his own shop. He has a family comprising of aged widow mother, one brother and two sisters who all are married and wife. He is involved in other cases i.e. FIR No. 71/07, Police Station Narela, under Sections 392/397/34 IPC wherein he has been held guilty of the offence under Section 392/397 read with 411 Indian Penal Code wherein he has been held guilty of the offence under Section 411 Indian Penal Code. He has already remained in judicial custody for about one month and twenty five days.
The convict Shyam Sunder aged about 27 years is 6th class pass and is a tailor by profession. He has a family comprising of aged parents, two married sisters, wife and two daughters. He is involved in other cases i.e. FIR No. 71/07, Police Station Narela, under Sections 392/397/34 IPC and has already remained in judicial custody for about one month and twenty five days.
Ld. Amicus Curiae for the convicts has vehemently argued that all the convicts are young boys and are helping hands of their respective families. It is argued that all the convicts have undergone the mental agony for about seven years. He requests that a lenient State Vs. Narender etc., FIR No. 187/2005, PS Sultanpuri Page 36 of 39 view be taken against them. The Ld. Addl. PP for the State on the other hand has prayed that a strict punishment be awarded to the convicts keeping in view the allegations involved.
I have considered the rival contentions. All the convicts are young boys and at the time of the incident they were in their early twenties. The conduct of all the convicts throughout the trial remained satisfactory and they were regular in their appearances. Keeping in view the fact that the convicts have suffered the agony of trial for the last seven years and the fact that any harsh view would be detrimental not only to the convicts but also to their respective families, a lenient view is taken against them. I hereby award the following sentences to the convict Narender Kumar
1. For the offence under Section 186 read with 353 Indian Penal Code the convict is sentenced to Rigorous Imprisonment for a period of Three months.
2. For the offence under Section 25 Arms Act the convict is sentenced to Rigorous Imprisonment for a period of one year and fine to the tune of Rs.1,000/. In default of payment of fine the convict shall further undergo Simple Imprisonment for a period of 7 days.
Both the sentences shall run concurrently.
In so far as the convict Satish Kumar is concerned, I award State Vs. Narender etc., FIR No. 187/2005, PS Sultanpuri Page 37 of 39 the following sentence to him:
1. For the offence under Section 186 read with 353 Indian Penal Code the convict is sentenced to Rigorous Imprisonment for a period of Three months.
2. For the offence under Section 25 Arms Act the convict is sentenced to Rigorous Imprisonment for a period of One year and fine to the tune of Rs.1,000/. In default of payment of fine the convict shall further undergo Simple Imprisonment for a period of 7 days.
Both the sentences shall run concurrently.
Further, I award the following sentence to the convict Shyam Sunder:
1. For the offence under Section 186 read with 353 Indian Penal Code the convict is sentenced to Rigorous Imprisonment for a period of Three months.
2. For the offence under Section 25 Arms Act the convict is sentenced to Rigorous Imprisonment for a period of one year and fine to the tune of Rs.1,000/. In default of payment of fine the convict shall further undergo Simple Imprisonment for a period of 7 days.
Both the sentences shall run concurrently.
State Vs. Narender etc., FIR No. 187/2005, PS Sultanpuri Page 38 of 39 Benefit of Section 428 Cr.P.C. shall be given to all the convicts for the period already undergone by them as per rules. It is further clarified that the sentence in the present case shall run concurrently to the sentence in case FIR No. 71/05, PS Narela.
The convicts are informed that they have a right to prefer an appeal against this order. They have been apprised that in case they cannot afford to engage an advocate, they can approach the Legal Aid Cell, functioning in Tihar Jail or write to the Secretary, Delhi High Court Legal Services Committee, 3437, Lawyers Chamber Block, High Court of Delhi, New Delhi.
Copy of the judgment and order on sentence be given to the convicts free of costs and another be attached with their jail warrants.
File be consigned to Record Room.
Announced in the open court (Dr. KAMINI LAU)
Dated: 18.2.2012 ASJ (NW)II: ROHINI
State Vs. Narender etc., FIR No. 187/2005, PS Sultanpuri Page 39 of 39