Delhi District Court
State vs . on 18 February, 2012
IN THE COURT OF MS. SAVITA RAO, ADDITIONAL SESSIONS
JUDGE01, NORTH, DELHI.
FIR No.: 395/07
PS: Lahori Gate
U/s: 399/402 IPC & 25/54/59 Arms Act
S.C. No.: 18/10
Case ID No. : 02401R1316512007
In the matter of:
State
Vs.
1. Mohd. Akil
S/o Mohd. Javed
R/o C25/28, Gali no. 3
Chauhan Bangar, Seelampur, Delhi
2. Ali Suhail @ Nanhe
S/o Sh. Manjoor Ali
R/o C364, Janta Colony, Welcome, Delhi
3. Brijesh Yadav
S/o Sh. Attar Singh
R/o Village Gadhi Nirbhay, P.S. Pachokhra
Distt. Firozabad, U.P.
4. Mohd. Haider
S/o Sh. Kamrool Huda
R/o L87, Abul Fazal Enclave
Zamia, Okhla, Delhi
Date of Institution : 24.2.2009
Arguments Heard : 17.2.2012
S.C. No.: 18/10 1/8
Date of Judgment : 18.2.2012
JUDGEMENT
Case Of Prosecution:
1. On 14.9.2007 at about 6.10 p.m. SI Sukhdev Singh received an information that six persons are standing on Fasil Road with two motorcycle and one scooter having fire arms and they are talking about the commission of dacoity near building no. 1716/18, Fasil Road, Pili Kothi, Lahori Gate. SI Sukhdev Singh immediately informed Inspector H.S.P. Singh, SHO Lahori Gate and thereafter a raiding party was constituted under the supervision of Inspector H.S.P. Singh, SHO Lahori Gate comprising of SI Sukhdev Singh, H.C. Rajeev Kumar, Ct. Inderjeet, H.C. Narain Dass, Ct. Yogender Giri.
Thereafter raiding party departed for place of information. In between, on the way SI Sukhdev Singh asked 5/6 persons to join the raiding party but none agreed and all went away after giving valid reason. In view of the sensitivity of the information, the raiding party immediately reached at 1716/18, Pili Kothi where six persons were found, who were challenged by the police party. On which all of them tried to flee away but four of them were overpowered by the police party, while two succeeded in escaping. One Desi Katta with two live cartridges were recovered from the possession of accused Mohd. Akil, one desi katta with two live cartridges were recovered from the possession of accused Ali Suhel and one dagger was recovered from the possession of accused Mohd. Haider and Brijesh Yadav. Recovered arms were taken into possession and instant case u/s 399/402 IPC & u/s 25 of Arms Act was registered against the accused persons .During the course of investigation, IO arrested all the accused persons, recorded their disclosure statements, obtained sanction u/s 39 of Arms S.C. No.: 18/10 2/8 Act from the concerned authority, sent the seized fire arms to FSL Rohini for ballistic report and after completion of investigation, filed challan u/s 399/402 IPC & u/s 25/54/59 Arms Act in the court against all the accused persons.
2. Since the offences u/s 309/402 of IPC are exclusively triable by the court of sessions, therefore, after supply of the documents, Ld. MM committed the case to the court of Sessions.
Charge Against The Accused:
3. Prima facie case u/s 399/402 IPC & u/s 25/54/59 Arms Act was made out against all the accused persons. Charge was framed against them accordingly to which they pleaded not guilty and claimed trial. Witnesses Examined:
4. In support of its case, prosecution has examined 8 witnesses in all.
5. The brief summary of the deposition of the prosecution witnesses is as under:
Formal witnesses:
6. PW1 is Head Constable Yashpal Singh who has proved the sanction order u/s 39 of Arms Act issued by Sh. Atul Katiyar as Ex. PW1/A.
7. PW3 is Head Constable Pankaj Chaubey, the MHC(M) who has proved the entries regarding deposition of case property in the malkhana vide Ex. PW3/A and Ex. PW3/B.
8. PW4 is Head Constable Bhim Singh, the duty officer who registered the FIR of the present case and proved the same as Ex. PW4/A. Material Witnesses: S.C. No.: 18/10 3/8
9. PW2 is SI Mohd. Raziq, IO of the case who arrested all the accused persons, recorded their disclosure statements, sent the exhibits to FSL for expert opinion and obtained sanction order u/s 39 of Arms Act from the concerned authority.
10. PW5 is Head Constable Rajeev Kumar, PW6 is SI S.S. Siddhu, PW7 is Head Constable Narain Dass and PW8 is Head Constable Inderjeet. They all are the police officials who participated in the raid and apprehended the accused persons and further proved the memos etc.
11. Statement of all the accused u/s 313 Cr.P.C. was recorded wherein they denied the case of prosecution and stated that they are innocent and have been falsely implicated in the present case.
12. I have heard Ld. APP for the state as well as Ld. Counsel for accused persons and have perused the record.
13. The prosecution case has remained vulnerable to doubt due to following reasons:
(i) No public witness has been joined by the IO during the whole investigation. All the police officials in chorus have deposed that they asked public persons to join the raiding party but none agreed. Admittedly, IO did not issue any notice on refusal of the public persons to become the witness to the apprehension of the accused persons or the recovery of articles from them, if the pubic persons were really asked so by the IO. The police officials who were the members of raiding party have admitted that the place of occurrence was a thorough fare and many people were passing through but it seems that no serious effort had been made by the IO to join any public witness before the arrest of accused persons or during the whole proceedings conducted at the S.C. No.: 18/10 4/8 spot. Reliance is placed upon AIR 1995 SC (1998) Daulat Ram Vs. State of Haryana, 1997 Crl. J. 2978 Sahib Singh Vs. State of Punjab, 1999 Crl. J. 19 Sompal Vs. State of Delhi, 2001 (II) AD SC 125 State of Rajasthan Vs. Tej Singh wherein interalia it was held that " where no serious attempt was made by the police official to join some independent person who could be easily available, it affects the weight of evidence. It was also observed that by not examining the independent witnesses, the prosecution thereby fails to produce the available independent corroborative evidence to support the evidence of interested witnesses " .
(ii) According to the witnesses of raiding party, after the apprehension of accused persons, their search was conducted and from the possession of accused persons, desi katta, cartridges and knives were recovered. The sketches of katta, cartridges and knives recovered from the accused persons were prepared and the weapons were taken into possession vide seizure memos. The motorcycle and scooter on which the accused persons had come were also taken into possession. Perusal of the record shows that after all these proceedings, the rukka was sent for registration of the case by SI Sukhdev Singh. But all the memos bear the number of FIR on them in running handwriting in which the other particulars have been filled in, which casts a doubt on the case of prosecution. None of the witnesses have stated that after registration of the FIR, the FIR number was mentioned on all the memos, rather PW 5 stated that FIR number was not written on all these memos which were prepared by first IO before handing over of the same to the second IO. All the memos were prepared at the spot before sending the rukka. All these memos which were prepared even before sending the rukka bear the number of FIR on S.C. No.: 18/10 5/8 them in running hand writing which means that either the documents were prepared after registration of the case or that no proceedings were conducted at the spot. The prosecution has failed to explain how these documents bear the FIR number in running hand writing when they were prepared prior to registration of FIR. Reliance is placed upon 2000 (1) JCC (Delhi) 274, 2000 (1) JCC (Delhi) 162 and upon Pawan Kumar Vs. Delhi Administration 1988 (2)RCR 421 wherein interalia it was observed that " where according to the prosecution the memos were prepared before registration of the FIR, the mention of FIR number on those documents creates doubt about the genuineness of the investigation " .
(iii) No personal search was offered by the police officials to the accused persons before taking their search.
(iv) Perusal of record further reveals that police had arrested and charge sheeted only four accused persons whereas in order to make out the case u/s 399/402 IPC, the requirement is for minimum of five persons. Mere mention of two more names whose parentage or whereabouts are not available on record would not be regarded as sufficient compliance of requirement of sec. 399 IPC.
(v) Besides the abovesaid, there are also numerous contradictions in the testimony of police officials who were the members of raiding party which also cast a doubt on the case of prosecution. Like PW 6 states about 7 members of raiding party whereas according to all other witnesses, there were only five members in the raiding party. Some of the prosecution witnesses state about the members of raiding party carrying the weapons alongwith them whereas according to others,they were not carrying any weapons at the time of conducting the raid. All the accused persons according to the prosecution S.C. No.: 18/10 6/8 witnesses were armed with dangerous weapons yet they tried to run away after having seen the raiding party while not making any efforts to resist that attempt or did not even try to take out the weapons from their pockets also in order to resist their arrest/ apprehension. According to prosecution witnesses, after they were warned by the raiding party, the accused persons tried to run away whereas according to PW8, they surrendered after they were warned by the raiding party . The public toilet, near by which the accused persons were conspiring had not been used by any of the public persons , the place of incident despite being located in a market place, though PW8 further contradicted by stating that the toilet might have been used by the shopkeepers.
According to PW2, the entire writing work concerning the investigation was done while sitting in a tent where a woman was also present whereas according to PW7 the writing work was done on bench brought by one of the police officials and at the same time, PW3 proceeded to say that the writing work was done at the spot by sitting on the bench and chairs provide by employees of Safai Ghar.
14. Having discussed as above, the evidence led by the prosecution is fount to be quite shaky in nature and, therefore it is highly unsafe to convict the accused persons only on the basis of testimony of police officials as being the police officials they are interested in success of the case and accordingly the accused persons deserve the benefit for the loopholes in the case of prosecution. They are therefore acquitted of the offence. In terms of section 437A of Cr.P.C., the bail bond already furnished by the accused persons are extended for the period of 6 months with the condition that they shall appear before the Hon'ble High Court as and when such notice is issued in respect of S.C. No.: 18/10 7/8 any appeal filed by the state against the judgement within a period of 6 months. Case property be confiscated to the state after the expiry of period of revision/appeal, if any. File be consigned to record room.
(SAVITA RAO) Additional Sessions Judge01 (North) Tis Hazari Courts, Delhi Announced in the open court today i.e. on 18.2.2012 S.C. No.: 18/10 8/8