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Delhi District Court

State vs . Mukesh & Ors. 1 Of15 on 1 August, 2012

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             IN THE COURT OF MR. UMED SINGH GREWAL
            ADDK SESSIONS JUDGE/SPECIAL JUDGE (NDPS) 
               OUTER DISTRICT:ROHINI COURTS:DELHI

SC No.67/2011
FIR No.137/2010
PS Crime Branch
u/s 399// IPC &
u/s 25/54/59 Arms Act

State
Vs.
1.    Mukesh,
      S/o Khairati Lal,
      R/o Near Old School PAC Camp,
      Adarsh Colony, 
      Muradabad, U.P.

2.       Lallu,
         S/o Kanwar Singh,
         R/o Vill. B­2067, J.J. Colony,
         Holambi Kalan,
         Delhi.

3.       Anil,
         S/o Ramesh Singh,
         R/o Vill. ­ Kasba Gola Gokharnath,
         Mohmmadi Road, Distt. ­ Khiri,
         Lakhimpur, U.P.



State vs. Mukesh & Ors.            1 of15                 
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4.       Rakesh,
         S/o Bhanu Pratap,
         R/o B­2093, J.J. Colony,
         Holambi Kalan,
         Delhi.

5.       Amarjeet @ Manjeet,
         S/o Vishawnath,
         R/o A­1567, J.J. Colony,
         Holambi Kalan,
         Delhi.

                                                   Date of institution : 08.04.2011
                               Date when arguments concluded: 27.07.2012
                              Date when Judgment pronounced:01.08.2012

JUDGMENT 

1. All five accused have been forwarded by police to face trial u/s 399/402 of IPC & u/s 25/54/59 of Arms Act.

2. Police case is that on 22.09.2010 at about 11.30 A.M., a secret informer came to HC Baljeet Singh to inform that 5­6 boys, who were residents of Moradabad and Lakhimpur and used to snatch cash from outside the bank, would come at about 1.00 P.M. and assemble at vacant power house, in front of petrol pump behind M2K Cinema, Sector­3, Rohini and would plan for looting cash and if raided, they could be caught red handed with illegal State vs. Mukesh & Ors. 2 of15 3 arms. HC Baljeet Singh produced the secret informer before ASI Ramesh Chander. After satisfying himself, ASI Ramesh Chander disclosed all facts to Insp. Satya Prakash and produced secret informer before him who brought this information to the knowledge of Senior Officers and he was directed to take immediate legal action. ASI Ramesh Chander formed a raiding team comprising of himself, HC Baljeet Singh, HC Jitender Kumar, Ct. Sunit Kumar, Ct. Pradeep Kumar, Ct. Manjeet Singh, Ct. Jagbir Singh and Ct. Amit Kumar and informer and left for spot vide DD No.6 Ex.PW4/A in govt. vehicles. They reached at the spot at 12.25 P.M. ASI Ramesh Chander asked 4­5 passersby to join the raiding team but all refused disclosing reasonable excuses. Due to shortage of time, no notice could be given to any of them. In order to verify the sanctity of the information, HC Baljeet Singh was sent at 12.40 P.M. to power house. The said HC returned after fifteen minutes and informed ASI that two motorcycles were parked outside the power house and 4­5 persons were sitting inside and the leader of those persons was claiming that he was having katta and Amarjeet and Anil were having Chilli Power and Rakesh and Lallu were having knives. He was instructing that Amarjeet and State vs. Mukesh & Ors. 3 of15 4 Anil would go inside the bank for visual supervision and would indicate other persons about the person who would be coming out of the bank with bulk quantity of cash and then cash borne person would be chased and robbed and if anybody tried to resist robbery, he would be attacked with knives and katta. After pointing out towards those persons, informer left the spot. Then, raiding team surrounded the power house from all sides and warned them in loud pitch that building had been surrounded and they were asked to surrender; otherwise, force would be used. All persons sitting inside the power house, started running here and there. With the help of other members of raiding party, they were individually overpowered. On the cursory search accused Mukesh, apprehended by HC Baljeet Singh, one katta containing one live cartridge and more live cartridge from the right pocket of his pant were recovered. From the search of accused Rakesh, apprehended by Ct. Manjeet, a button actuated knife was recovered from the back pocket of his pant. From the right pocket of the pant of accused Lallu, apprehended by Ct. Pradeep, a button actuated knife was recovered. From accused Amarjeet, apprehended by Ct. Sunil, one white colour plastic polythene containing red chilli powder was State vs. Mukesh & Ors. 4 of15 5 recovered from the right pocket of his pant. One polythene containing red chilli powder was recovered from the right pocket of pant of accused Anil on his cursory search and he was apprehended by Ct. Jagbir Singh. One parcel of the illegal pistol and cartridges was prepared and seal of RC was affixed on it. In the same manner, knives recovered from accused Rakesh and Lallu and two polythenes containing red chilli powder recovered from accused Amarjeet and Anil were converted into parcels and seal of RC was affixed on them. Form FSL was also filled up. Seal after use was handed over to HC Baljeet Singh. All parcels and two motorcycles parked at the spot were taken into possession.

3. Charges u/s 399/402 IPC were framed against all accused on 08.04.2011. Charges u/s 25 of Arms Act were framed against accused Mukesh, Rakesh and Lallu. All accused claimed trial.

4. Police examined twelve witnesses. Accused did not examine a single witness in defence.

5. PW2 HC Jag Narain was MHCM on 22.09.2011 in PS Crime Branch, Nehru Place. On that day, Insp. Satya Prakash had deposited five sealed pullandas, form FSL and two motorcycles State vs. Mukesh & Ors. 5 of15 6 No.DL­11S­4061(Apache) and DL­8SNC­4579(Pulsor) and personal search articles of accused Mukesh, Anil, Lallu, Rakesh and Amarjeet PW2 made relevant entry to this effect at serial No.323 in register No.19 Ex.PW2/A. On 01.10.2010, a pullanda sealed with the seal of RC was sent to FSL, Rohini through ct. Manjeet vide RC No.359/21/10 Ex.PW2/B who handed over the copy of RC and receipt acknowledgment Ex.PW2/C to PW2. On 20.10.2010, a sealed pullanda having seal of KCY, FSL, Delhi with result was received through Ct. Amit Kumar.

PW3 HC Kewlanand was Duty Officer on 22.09.2010 in PS Crime Branch. He received a rukka through Ct. Pradeep Kumar sent by SI Ramesh Chand at 5.45 P.M. on the same day and recorded FIR No.137/10 Ex.PW3/A and made endorsement Ex.PW3/B. PW4 HC Naresh Kumar brought the DD register for the period from 20.07.2010 to 12.10.2010 containing original DD No.6 dated 22.09.2010 Ex.PW4/A. PW5 Dr. K.C. Varshney, Assistant Director, Ballistic Division, FSL, Rohini deposed that on 01.10.2010, a parcel sealed with the seal of RC was received in FSL along with State vs. Mukesh & Ors. 6 of15 7 forwarding letter and the same was marked to him for examination and opinion. He deposed that seals on the parcel were intact and on opening, one pistol of .315 inch bore and tow cartridges of 8mm/.315 inch were taken out from that parcel and Mark F1, A1 and A2 were given. He opined that Mark F1 country made pistol was in working order and test fire was conducted successfully. He further deposed that country made pistol Mark F1 was firearm and the cartridges Mark A1 and A2 were ammunition as defined in the Arms Act and proved his report as Ex.PW5/A. PW10 Insp. Satya Prakash is the second IO. He proved arrest of accused Mukesh vide memo Ex.PW9/A and personal search memo Ex.PW9/B; of accused Lallu vide arrest memo Ex.PW8/A and personal search memo Ex.PW8/B; of accused Anil vide arrest memo Ex.PW1/C and personal search memo Ex.PW1/B; of accused Rakesh vide arrest memo Ex.PW10/A and personal search memo Ex.PW10/B and of accused Amarjeet vide arrest memo Ex.PW7/A and personal search memo Ex.PW7/B. PW10 also recorded the disclosure statements of accused persons vide Ex.PW10/E, Ex.PW10/F, Ex.PW10/G, Ex.PW10/H and Ex.PW10/I. He also seized the motorcycle No.DL8SNC4579 Pulsor red colour State vs. Mukesh & Ors. 7 of15 8 and motorcycle No.DL11S4061 Apache black colour from the spot vide memos Ex.PW10/C and Ex.PW10/D and sent to PS through HC Jitender and Ct. Manjeet. He obtained the sanction u/s 39 Arms Act Ex.PW10/J from the concerned DCP.

PW11 Mr. Sanjay Tyagi, Addl. DCP, 1st New Delhi District deposed that on 09.11.2010, he was posted as Addl. DCP, Crime and on that day, Insp. Satya Prakash moved an application for seeking sanction u/s 39 of Arms Act which was accorded by him vide Ex.PW10/J. PW12 HC Manjeet deposed that on 01.10.2010, as per instruction of IO, he had taken exhibits along FSL form, all having seal of RC, to FSL, Rohini vide RC No.359/21/10 and deposited the same there and after deposit, handed over copy of RC and receipt acknowledgment to PW2 HC Jag Narain MHCM. Case property was not tampered with till it remained in his possession.

6. In their statements u/s 313 of Cr.PC, all accused stated the case as false and that nothing was recovered from them. Accused Mukesh, Lallu and Anil were picked up from Kalimata Mandir, Rohini and accused Amarjeet and Rakesh were picked up from Naharpur Market and all of them were asked to come at State vs. Mukesh & Ors. 8 of15 9 police station for some inquiry and thereafter, this false case was planted upon them.

7. Ld. APP for the state argued that all accused were planning for robbery and their conversation was heard by PW9 the then HC Baljeet Singh and lethal weapons have been recovered from them. She submitted that despite lengthy cross­examination, accused could not bring out anything favourable to them from HC Baljeet Singh and other witnesses. In the end she argued that HC Baljeet Singh has been corroborated by PW1, PW6, PW7 and PW8. She also referred to production and identification of desi katta and live cartridges as P1, button actuated knife as Ex. P2, another button actuated knife as PW3 and chilly powder as Ex. P4 and Ex. P5 respectively.

8. PW9 HC Baljeet Singh and other recovery and arrest witnesses have deposed as per original tehrir Ex. PW6/H sent by PW6 on 22­9­2010 at about 4.15 PM. PW9 deposed that ASI Ramesh Chander sent him inside the building of Power of House in order to over hear the conversation of the accused. He returned at about 12.35­12.40 PM and informed IO that two motorcycles (one black Apachi and other red Pulsor) were parked outside the State vs. Mukesh & Ors. 9 of15 10 building and 5­6 persons were sitting there. Leader of these persons was claiming that he had katta and accused Rakesh and Lallu were carrying knives and accused Anil and Amarjeet had chilly powder. He was instructing Anil and Amarjeet to go inside the bank for visual supervision and to indicate others about the person who would come out of the bank with bulky bag of cash. Their next plan was to chase and rob that person and if anybody tried to intervene, he would be attacked.

9. As per PW9 informer had informed that accused were armed with illegal weapons. It was quite strange tip off. Informer can be said, to some extent, to be aware of any plan of robbery but it cannot be expected of him to say that the offenders were armed with illegal weapons. Conversation is said to have been heard by PW9 at about 12.30 noon. At that time he was barely 5ft. away from the accused who were sitting in a room of power house near M2K Mall. Planning to do wrong act is done secretly. It is not expected that the accused shall talk about their plan so loudly that it was overheard by PW9. A police officer can be recognised by any person from a distance of five meters. The Apex court held in Suleman Vs. State of Delhi 1999 (2) RCR (Crl.) SC 377, that such State vs. Mukesh & Ors. 10 of15 11 plan is made secretly and it cannot be expected that any other person can hear that conversation.

PW7 Sunil Kumar admitted in cross­examination that accused Mukesh, though armed with country made pistol and two live cartridges, did not fire and in the same way accused Rakesh and Lallu, who were armed with knives, did not try to injure any of the raiding team members. Police also did not use its weapons. Neither the accused nor any member of the raiding team sustained injury.

9. Any accused shall assemble to commit robbery/ decoity only if they have any prior association. Police did not collect the Call Detail Records of the phones of the accused to establish previous friendship amongst them. As per admission of PW8 the accused were residents of Muradabad and Lakhimpur Khiri. Distance between both place is not less than 400 kms. PW7 stated in cross examination that he did not know any relationship between the accused. He also does not know if the accused were involved together in some other case. Police is not aware if the accused studied together or not. It is also unaware of any meeting of the accused before the present one. So, police has failed to State vs. Mukesh & Ors. 11 of15 12 establish any prior association amongst the accused.

Competence of the raiding team members is also in doubt in the light of cross­examination of PW7 Sunil Kumar. He deposed that neither he nor IO were able to arrest any of the person who may have assemble to murder or attempt to commit murder. PW7 is a stock witness of such type of cases as he is witness in 3­4 other cases u/s 399, 404 IPC.

PW7 and PW8 admitted that Mall M2K is about 200­225 meters from the spot and petrol pump is about 40­50 meters. Kalimata temple is 200 meters from there. Distance of PS South Rohini is not more than 50­60 meters from the place of arrest. Raiding team did not give any intimation to the local police either before or after the arrest of the accused. They did not join the local police in the investigation. Despite availability of independent and public witnesses, police did not try to join any one though Kalimata Temple is on the Outer Ring Road and is always frequented by the worshipers. Similar were the facts in Ritesh Chakravarty Vs. State of M.P. 2006 (4) RCR 480 SC and Sarjiwan Lal Vs. State of Punjab 2012 (1) RCR 215 P&H, and benefit of doubt was given to the accused.

10. There are some material contradictions in the State vs. Mukesh & Ors. 12 of15 13 statements of the witnesses: PW1 deposed that two motorcycles of the accused were parked inside the power house but as per rough site plan, PW6 and other witnesses, both motorcycles were parked outside the power house. PW1 stated that plan of the accused was to rob the bank but as per other witnesses their plan was to rob a person who was to come from the bank with the bulky cash bag. PW1 stated in cross­examination that distance of raiding team members from HC Baljeet Singh was 250­300 meters, he was overhearing the conversation of the accused. As per PW7 Sunil Kumar this distance was only 8­10 meters. But PW6 ASI Ramesh Chander stated this distance as 150­200 meters. PW6 ASI Ramesh Chander deposed that place of the arrest of the accused is a deserted place and there is no shop nearby. On this point he is contradicted by all recovery witnesses. As per PW7 height of the boundary wall of the power house was 5 ft. but as per PW9, height was 8­10 ft. PW8 Ct. Pradeep Kumar deposed that room in which accused were planning for robbery was about 10 ft. away from the boundary wall but as per PW9 this distance was 5­6 ft.

11. Sketch Ex. PW6/C of the button actuated knife recovered from accused Rakesh, shows length of sharp portion as State vs. Mukesh & Ors. 13 of15 14 11 cm and breadth as 2.6 cm. In the same way length and breadth of the sharp edge of button actuated knife recovered from the accused Lallu is 10 cm and 2.3 cm respectively. As per Delhi Administration Notification No. F/13/451/79­Home (G), possession of button actuated knife with a sharp edged blade of 7.62 cms. or more in length and 1.72 cms or more in breadth in the Union Territory of Delhi, is a crime under Arms Act.

PW11 Sanjay Tyagi, Addl. DCP had accorded sanction Ex. PW10/J against accused Mukesh for possessing dessi katta and two live cartridges. PW5 Dr. K. C. Varshney, Assitant Director, Ballistic Division, FSL Rohini deposed that Katta Mark F1 recovered from accused Mukesh was fire arm and both cartridges Mark A1 and A2, have also recovered from accused,were ammunition as defined in the Arms Act.

Admittedly none of the accused used weapon at the time of their arrest. None of the raiding team member was injured. Police did not take finger print impressions from the weapons to tally them with the finger print impressions of the accused. Despite availability of public witnesses, police did not join any person in search or other proceedings. All accused are residents of different State vs. Mukesh & Ors. 14 of15 15 addresses and police failed to establish any prior association between them. Matter has further been complicated by PW5 HC Manjeet by deposing that he had obtained 5 pulandas from the MHC(M) and deposited at FSL, Rohini. He could not recollect the number of seal impressions on each pulanda. He deposed that he had collected five FSL forms also but failed to recollect number of seals on the FSL forms. As per PW5 Dr. K.C. Varshney, only one sealed parcel was received in the FSL on 01­10­10. FSL report Ex. PW5/A also mentions that only one parcel was received. Police failed to account the remaining four pulandas.

12. Taking into account the above discussion, it is held that prosecution has failed to prove its case beyond reasonable doubt, and hence, all four accused, namely, Mukesh, Lallu,Anil, Rakesh and Amarjeet @ Manjeet are hereby acquitted of the charges levelled against them. They be set at liberty if not wanted in any other case. Their bail bonds stand cancelled. Sureties discharged. Announced in the Open Court on day of 1st August, 2012.

                                        (UMED SINGH GREWAL)
                                        ASJ/Special Judge (NDPS)
                                 Outer Distt: Rohini Courts: Delhi 



State vs. Mukesh & Ors.              15 of15