Delhi District Court
Sc No.13608 (State vs . Jasbir Singh) on 1 March, 2011
SC No.13608 (State Vs. Jasbir Singh)
IN THE COURT OF SH. DINESH KUMAR SHARMA
ADDITIONAL SESSIONS JUDGE - 02 (SOUTH)
SAKET COURTS , NEW DELHI
SC No.136/08
Unique Case ID No. : 02403R0960412008
State V/s. 1. Jasbir Singh
S/o Sh. Mangal Singh
R/o Village Mumme Distt.
Ropar (Punjab).
2. Harjinder Singh
S/o Sh. Dara Singh
R/o Village Saran P. Schobhal
Distt., Thetaran (Punjab).
FIR No. : 18/08
u/Ss. : 365/394/397/34 IPC & 25 Arms Act
PS : Defence Colony
Date of Committal : 28.11.2008
Arguments Heard on : 01.03.2011
Date of Decision : 01.03.2011
JUDGMENT.
Accused persons have been charged and tried for the offence
Page 1 of 19
SC No.13608 (State Vs. Jasbir Singh)
u/Ss.365/394/397/34 IPC and u/S.25 Arms Act.
1.0 Briefly stated that the case of the prosecution is that on 10.01.2008, an information was recorded vide DD No.9A at 10:45 pm that a vehicle No. DL 1Y A 8723 had left for Palam Airport at around 8 pm and has not reached back. Pursuant to DD No.9A, a complaint Ex.PW3/A was also received on 10.01.08 at 10:45 pm from PW3 Inderjeet Singh, wherein he stated that he is a taxi operator and attached to Gurbax Taxi Stand, Opp. D16, Defence Colony, New Delhi. A call was received regarding booking a cab to pick up one of the Sr. Officer of M/s. Fritolary India Ltd., Mr. Vishal Bhatia who was coming from Mumbai by Flight No. 9W 309 and the expected time of the flight was 8:30 pm on 09.01.08. A taxi bearing No. DL 1Y A 8723 make Indica was sent to Domestic Airport. Complainant informed that driver Hardeep Singh was carrying mobile No.9971638406 on which he received a call at 8:30 pm from customer Mr. Vikram Bora inquiring about his location on which driver had told him that he was quite close to the Airport and was just about to reach in any time. However, the driver did not reach till 9:30 pm and when he was again tried to be contacted on same mobile number but there was no response from that mobile Number. Thereafter, there was no trace of neither the cab nor the Page 2 of 19 SC No.13608 (State Vs. Jasbir Singh) driver. The complainant suspected that his driver has been kidnapped along with driver. On this complaint, an endorsement Ex.PW6/A was made on 13.01.08 at 8 pm and FIR No.18/08 u/Ss.365/394/397/34 IPC was lodged. IO prepared site plan Ex.PW6/B. On 14.01.08, Hardeep Singh came to PS and stated that on 09.01.08 at around 8 pm he left for Palam Airport along with vehicle No. DL 1Y A 8723 to pick Mr. Vishal Bhatia and when he reached under Mool Chand Flyover at around 8:10 pm, two persons approached him, while he was on the traffic signal and requested for a lift upto AIIMS. The victim accepted their request. One of the person sat on the front seat and another person sat on the back seat. As soon as the victim crossed the traffic signal, the Sikh gentlemen who was sitting with the victim took out a country made pistol and put it on the neck of the complainant and threatened him to not to make any voice. After sometime when they reached at an isolated place near Dhaula Kuan, they made the victim to stop the vehicle at the point of country made pistol and forcibly put him on the back seat. On being resisted by the victim, the Sikh boy assaulted the victim on his chest with country made pistol with 34 times. Another accused also took out a knife and threatened her to tear his stomach, in case he makes noise. Accused sitting on the rear seat came on the wheels and the Sikh person sitting on the front Page 3 of 19 SC No.13608 (State Vs. Jasbir Singh) seat sat on the back seat along with the victim with country made pistol. The accused was made to sit with head down and accused persons fled away. In Ludhiana, accused persons bought diesel of Rs.500/, in the meanwhile, accused persons kept the victim at the point of country made pistol. Then they went towards Taran Taaran. At around 5:30 am on 10.01.08, accused persons reached at some home, who were looking known to the accused persons and closed the gate. It was a dark room. The accused persons took breakfast and victim was also offered the tea. Accused persons left the spot at 7:30 am and reached village patti. They made an attempt to sell the vehicle . However, the deal could not be finalized. The accused persons locked the victim in a dark room. On 11.01.08, the accused persons started their journey towards the Meerut and reached Khatoli at 6 am on 12.01.08. Accused persons took tea there and also offered the tea to victim. The victim was taken to a room in a secluded place where there was no electricity. He spend a day & night in the same room. Journey again started on 13.01.08. After around 1015 kms, the victim was taken to dilapidated room in which there was no electricity. Victim was locked in the same room during the night and accused persons also remain there with knife and country made pistol and kept on threatening the victim that in case he makes any noise, he would be killed. In the morning, accused persons went Page 4 of 19 SC No.13608 (State Vs. Jasbir Singh) for the nature's call. The victim got a chance and escaped from their custody along with car. The victim reached Delhi and he went to Taxi stand. On Taxi stand, he received a call from the offenders that their bag has been left in the taxi. Accused persons asked him for their bag. The victim called the offenders on the Taxi stand to take away their bag. However, the accused persons were not ready to come at Taxi stand and called the victim to Andrews Ganj Subway near Petrol Pump at 7:30 pm. Accused persons threatened the victim that matter should not be informed to the police. They also offered to render apology to the victim for their misbehaviour. The victim gave the description of the accused persons to the police. The bag belonging to the accused persons was handed over to the police and the same was seized by the police. On 14.01.08 again, the victim came to PS at 5:15 pm and on his information DD no.26A, Ex.PW8/A was recorded. Complainant informed the same thing. Complainant again informed that a call has been received at Taxi Stand from the accused persons that they are coming to receive their bag at 7:30 pm near Andrews Ganj Subway, Near Petrol Pump. On this information, a raiding party was formed and at around 7:30 pm, accused persons namely Harjinder Singh and Jasbir Singh were apprehended. Accused Harjinder Singh was found in possession of country made pistol along with three live cartridges. Accused Jasbir Singh was Page 5 of 19 SC No.13608 (State Vs. Jasbir Singh) found in possession of a Buttondar knife. Another accused Pal Singh was also arrested. After investigation, chargesheet u/Ss.365/394/397/34 IPC and 25 Arms Act was filed in the court against the accused persons.
It is pertinent to mention here that a supplementary charge sheet along with sanction u/S.39 Arms Act with FSL report was filed by the investigating agency before the Ld. Trial Court on 09.09.2010. 2.0 Being a prima facie case, charge u/Ss 365/394/397/34 IPC and 25 Arms Act was framed against both the accused persons. Both the accused pleaded not guilty and claimed trial.
3.0 Prosecution examined 10 witnesses in support of its case. PW1 Ct. Ashok Kumar had remained with IO ASI Roop Singh during the investigation on 13.01.08. He proved the arrest of accused persons as well as recovery of country made pistol and live cartridges from the possession of accused Harjinder Singh and recovery of knife from the possession of accused Jasbir Singh. PW2 HC Madan Lal proved the carbon copy of FIR as Ex.PW2/A. PW3 Inderjeet Singh, complainant / owner of Taxi No. DL 1Y A 8723 proved his complaint as Ex.PW3/A. He stated that on 13.01.08, when his driver returned. He came to know that he was abducted by Page 6 of 19 SC No.13608 (State Vs. Jasbir Singh) somebody and escaped on getting an opportunity.
3.1 PW4 Hardeep Singh / victim made a detailed statement. He stated that on 09.01.07 (seems to have been wrongly typed. Be read as 09.01.08) at about 8 pm, he left taxi stand along with Indica car bearing No. DL 1 Y A 8723 and took a right turn towards Andrews Ganj from Mool Chand and stopped beneath the Flyover at Andrews Ganj crossing. Two persons came there and one of them was Sardar. They asked him to give them a lift to AIIMS. PW4 agreed and allowed them to board the vehicle. After sometime, Sardar fellow, identified as Harjinder Singh placed a katta on his neck while the other person, identified as accused Jasbir Singh, was sitting on the rear seat. Both the accused threatened him that if he makes any noise, then he would be killed. When the vehicle reached near Dhaula Kuan at a deserted place, accused persons asked him to stop the vehicle and accused Harjinder Singh gave butt blows of his weapon on his chest. Thereafter, accused Jasbir Singh pulled him to the rear seat and other accused started driving the vehicle and accused Harjinder overpowered him on the rear seat.
PW4 Hardeep Singh stated that accused persons took the vehicle towards Punjab and toll tax was also paid at Karnal. Thereafter, accused Page 7 of 19 SC No.13608 (State Vs. Jasbir Singh) persons bought some diesel for Rs.500/ from Ludhiana and proceeded towards Amritsar. In Amritsar, accused persons took him inside some unknown house by taking the vehicle inside at about 5:30 am and PW4 was kept in a dark room. Accused persons gave tea to PW4. Thereafter, accused persons again proceeded along with PW4 and reached Patti. There accused persons tried to sell the vehicle. The proposed buyer offered Rs.30,000/ for the vehicle but accused persons did not agree on this amount. Thereafter, they came back to the same place where he was confined. The accused persons then proceeded towards Meerut along with PW4. He was kept on the rear seat in the same manner and accused persons kept on threatening him during the way. After reaching Khatoli, accused persons took him to a deserted room where he was again given Tea and accused persons also took tea. Then they again proceeded further and in the evening reached to the same deserted room at Khatoli. PW4 was kept in that room for whole of the night. Next morning, they proceeded for Meerut and in the way, both the accused persons got down in order to answer the call of nature leaving the keys in the vehicle. PW4 got an opportunity and drove down the vehicle towards Delhi leaving the accused persons there. PW4 stated that he reached Defence Colony police station and lodged the report and came back to the taxi stand. After about 2 ½ hours, he started receiving calls from Page 8 of 19 SC No.13608 (State Vs. Jasbir Singh) accused persons as a bag belonging to them remained in the vehicle. Accused persons asked for their bag and promised that they will not say anything to him, if he returned the bag to them. PW4 was warned to not to inform the police. PW4 stated that he went to PS Defence Colony and informed the matter to the police. At about 7:30 pm on 14.01.07 (seems to have been wrongly typed. Be read as 14.01.08), accused persons came on the spot and on the indication being made by the witness, accused persons were overpowered by the police at subway. Accused Harjinder was carrying one loaded katta along with two live cartridges and accused Jasbir Singh was having two buttondar knives. The arms were seized vide memos Ex.PW1/C and Ex.PW1/D. Their sketchs Ex.PW1/B and Ex.PW1/A were prepared. Accused persons were arrested vide arrest memos Ex.PW1/G, Ex.PW1/F and their personal search was conducted vide memos Ex.PW1/I and Ex.PW1/H. Handing over memo of the bag Ex.PW1/E was prepared. Case property was identified as Ex.P1 to Ex.P7.
In the cross examination by Ld. Addl. PP for State, PW4 corrected himself that accused Jasbir Singh was having only one knife. In the cross examination, PW4 stated that accused placed katta on his neck after about 23 minutes of boarding the vehicle. PW4 admitted that he was having a mobile number. He also admitted that at Dhaula Kuan, vehicles Page 9 of 19 SC No.13608 (State Vs. Jasbir Singh) were moving and there was a traffic jam at Karnal Bypass. However, he did not make noise out of fear. PW4 also admitted that vehicle number is recorded when toll tax was paid Karnal Bypass. He also admitted that toll tax was paid at Rajpura, Punjab border in the same manner. PW4 stated that his statement was recorded by the police on 14.01.08. Receipts of toll tax and slip of buying diesel were identified by the witness as Ex.PW4/DA, Ex.PW4/DB and Ex.PW4/DC. Both the toll tax receipts were of Doraha Toll Plaza and the same were not carrying the vehicle number. The diesel receipt was of dated 10.01.08. PW4 stated that he could not tell anybody at Toll Plaza about his kidnapping as he was overpowered at the rear seat by accused Harjinder Singh. Witness was not knowing whether police seized the vehicle involving in this case or not. PW4 admitted that IO did not seize any mobile phone. PW4 also admitted that nothing valuable like cash, jewelery etc. were there in the bag.
3.2 PW5 Ct. Mukesh Kumar was a link witness to took pullandas to FSL vide RC No.135/21. PW6 ASI Roop Singh, Investigating Officer (IO) formally proved the case of the prosecution. He stated that DD No.9A was received on 10.01.08. However, the same was kept pending for inquiry and on 13.01.08, case was registered. On 14.01.08, Hardeep Singh, driver Page 10 of 19 SC No.13608 (State Vs. Jasbir Singh) came in PS and informed that he was kidnapped and had escaped from the custody of kidnappers along with car. IO made a detailed statement regarding the proceedings taken place on 13.01.08 regarding arrest of accused persons and seizure of country made pistol, knife and live cartridges from the possession of accused persons.
In the cross examination, IO stated that on 11.01.08 or 12.01.08, he did not conduct any raid. He also admitted that there is a overwriting on the tehrir, Ex.PW6/A at portion encircled 'X'. It is pertinent to mention here that portion encircled 'X' is the date on which FIR is lodged. IO stated that he did not visit the house of accused Hardeep during 10.01.08 to 14.01.08 for making inquiry.
3.3 PW7 Sh. P.C. Sharma proved the notification dated 17.02.1979 as Ex.PW7/A. PW8 HC Vinod Kumar proved the DD No.26A as Ex.PW8/A. PW9 HC Ram Singh is MHC(M). PW10 Vijay Singh proved the sanction u/S.39 Arms Act as Ex.PW10/A. 4.0 In their statement u/S.313 Cr.P.C., accused persons denied all the allegations leveled against them and stated that nothing was recovered from them and they have been falsely implicated in this case. Page 11 of 19
SC No.13608 (State Vs. Jasbir Singh) 5.0 Sh. H.U. Rehman, Ld. substitute Addl. PP for State has submitted that prosecution has successfully proved its case against the accused persons. It has been submitted that PW4 Hardeep Singh has made a consistent and corroborative statement on oath. It has further been submitted that contradictions which have appeared in the testimony of PW4 are minor in nature and does not go into the root of the case. 6.0 I have heard Ld. Addl. PP for State and have carefully gone through the evidence on record.
7.0 The entire story of the prosecution seems to be a comic story. Here is the case, where two persons kidnap a car along with its driver from a very prominent, crowded and commercial place of South Delhi at around 8 pm. The kidnappers are armed with country made pistol and knife. The victim is given beatings. The vehicle is stopped at Dhaula Kuan again a very crowded place with heavy movement of traffic and one of the accused person took over the wheels then the Taxi along with victim is taken towards Punjab through Karnal bypass, which we all know that it is a very crowded place and particularly in the year 2008 when lots of construction activity was going on. Despite being traffic jam, victim could not attract the Page 12 of 19 SC No.13608 (State Vs. Jasbir Singh) attention of any passerby. Then the vehicle is taken towards Punjab, toll tax is paid at various barriers. Accused persons got filled the petrol and they did not fail to get the receipt of the petrol so that in future, police have enough evidence that the car was taken by the accused persons. Then, accused persons go to somebody known to them along with victim. There, they take tea and then they are roaming around with the victim and try to sell the vehicle. Complainant know everything that the vehicle is being sold. He know that what is the negotiation of selling the vehicle and he did not make any attempt to tell anyone that he has been kidnapped by the accused persons and they are armed with deadly weapons. Then the victim is taken to Meerut, UP, where also accused persons remain for 23 days and on one fine morning, accused persons leave the car unattended along with key and our victim manage to escape along with car.
7.1 Even if the story of prosecution is taken as gospel truth, nobody can control the smile coming on the face. The investigation officer, complainant and accused persons seems to be the actor of some comedy movie. The story does not end here. After the victim comes back to Taxi Stand along with car, the horrible kidnappers who were armed with dangerous weapon makes a telephone call at Taxi stand and ask the victim Page 13 of 19 SC No.13608 (State Vs. Jasbir Singh) fro their bag. Let us see, what was the contents of bag. Bag (Ex.P7) was having 4 shirts, 3 pants and one copy. The offenders ask the victim to give them their bag and took the risk to come to the same place where they had a horrible kidnapping, to collect the said bag. It seems that the offenders themselves wanted to get them arrested. Here the complainant and police did not commit any fault and accused persons were arrested. 7.2 The role of police is also no less. Complaint Ex.PW3/A was received by the police on 10.01.08 on 10.45 pm. At the end of this complaint, complainant stated that he doubt that the driver has been kidnapped along with car. This complaint was kept pending by the police purportedly till 13.01.08. On 13.01.08 at 8 pm, suddenly the police decides to register a case u/S.365 IPC. It is pertinent to mention here that there is a cutting at portion encircled X on endorsement Ex.PW6/A. This over writing on the date of registration of FIR is very material. From the naked eye, it seems that 12.01.08 was converted to 13.01.08. It is also pertinent to mention here that in complaint Ex.PW3/A, the words "I doubt that the driver has been kidnapped along with vehicle" has been added later on. It seems to have been written with a different pen.
It is beyond any explanation or imagination that such a serious Page 14 of 19 SC No.13608 (State Vs. Jasbir Singh) complaint was kept pending by the police till 13.01.08. IO admitted that he did not conduct any investigation till 13.01.08. I have gone through the case diary also. Case diary also does not speak anything regarding any investigation or inquiry conducted before 13.01.08. PW3 Inderjeet Singh has stated in his testimony that on 13.01.08, PW4 Hardeep Singh had come back and stated that he was abducted. It seems that initially a complaint, Ex.PW3/A was made on 10.01.08, which was kept pending and on 13.01.08, after the driver (PW4) came back, the police for the reasons best known to them, tampered with the initial complaint and then got a FIR lodged.
7.3 Bare perusal of case diary indicates that the same were not maintained in accordance with law. Recently, a division bench of our own Hon'ble High Court in Rakesh Vs. State, 2010 (3) CC Cases (HC) 321, while discussing the importance of maintaining case diary, inter alia observed as under :
"Rules require the production of entire Case Diary before Magistrate concerned when an accused is produced before him by the Police and an obligation is cast upon Magistrate to sign or initial each page of the Case Diary."Page 15 of 19
SC No.13608 (State Vs. Jasbir Singh) Recently, an amendment has also been made in Code of Criminal Procedure, in which strict guidelines have been made regarding the maintenance of case diary. It is impressed upon that Ld. MM while remand and bail proceedings should maintain a check on the case diaries. 7.4 Here is the case, where the investigation is apparently tented. It is strange that on the complaint, Ex.PW3/A, mobile number which victim / Hardeep Singh was carrying was specifically mentioned but IO did not conduct any investigation in this regard. This alone factor indicates that investigation is tented and record has been manufactured to suit the story created by the IO. The story of the prosecution is highly improper and unbelievable. The testimony of the complainant also, if read as a whole do not inspire any confidence. It is settled principle that in order to record conviction, the prosecution has to prove its case beyond reasonable doubt. 8.0 In view of the above findings, I consider that prosecution has miserably failed to proved its case against the accused persons. Hence, accused persons are acquitted for the offence u/Ss.365/394/397/34 IPC in case FIR No.18/08 PS Defence Colony.
Page 16 of 19
SC No.13608 (State Vs. Jasbir Singh) CHARGE U/S. 25 ARMS ACT 9.0 Accused persons have also been charged u/S.25 Arms Act. Before proceeding further, it is pertinent to note the provisions of Section 39 Arms Act, which reads as under :
"39. Previous sanction of the district magistrate necessary in certain cases - No prosecution shall be instituted against any person in respect of any offence under section 3 without the previous sanction of the district magistrate."
The bare perusal of this section makes it clear that prosecution shall not be instituted against any person before the previous sanction from the District Magistrate. The purpose of the sanction in the law is that no innocent person should be prosecuted for offence unless and until it is examined by the senior officials. It has been held in catena of judgments that sanction should be accorded after due application of mind and the provisions regarding sanction are to be interpreted strictly. It is also a settled proposition that such provisions are to be strictly followed and cannot be diluted in any manner.
9.1 In the present case, admittedly, the sanction u/S.39 Arms Act, Page 17 of 19 SC No.13608 (State Vs. Jasbir Singh) Ex.PW10/A is dated 24.08.2010. The prosecution has filed a supplementary charge sheet on 09.09.2010 after obtaining sanction u/S.39 Arms Act. Initially, the charge sheet was filed on 11.04.08. Therefore, apparently, the sanction was obtained after the charge sheet was filed in the court. It is pertinent to mention here that in Smt. Javitri Devi Vs. State, 1971 Cri.L.J. 1340 (V 77 C 384), it was inter alia held that sanction of District Magistrate must be obtained before filing charge sheet for an offence u/S. 25 of the Act and sanction obtained at subsequent stage will not cure the defect and the entire proceedings are vitiated. Thus, in view of the judgment in Javitri Devi's case (supra), the case of prosecution u/S.25 Arms Act is liable to be failed. Even otherwise, the story of recovery of knife and country made pistol from the possession of accused persons is also doubtful. 10.0 As discussed above, prosecution has also failed to prove its case u/S.25 Arms Act against the accused persons. Hence, accused persons are also acquitted for the offence u/S.25 Arms Act in case FIR No.18/08 PS Defence Colony.
11.0 In terms of section 437(A) Cr.P.C., accused persons are Page 18 of 19 SC No.13608 (State Vs. Jasbir Singh) directed to furnish bail bond in the sum of Rs.10,000/ each with one surety each in the like amount to appear before the Hon'ble High Court as and when court issues notice in respect of any appeal or petition filed against this judgment. Such bail bonds shall be in force for 6 months. 12.0 File be consigned to Record Room.
Announced in Open Court (Dinesh Kumar Sharma)
today on 01.03.2011 ASJ02(South)/Saket Courts
New Delhi.
Page 19 of 19
SC No.13608 (State Vs. Jasbir Singh)
SC No.136/08
01.03.2011
Present : Ld. Addl. PP for State
Both the accused on bail are present
Statement of accused persons u/S.313 Cr.P.C. is recorded separately.
Vide separately announced judgment in the open court, accused Jasbir Singh and Harjinder Singh are acquitted for the offence u/Ss. 365/394/397/34 IPC and 25 Arms Act in case FIR No. 18/08 PS Defence Colony.
In terms of section 437(A) Cr.P.C., accused persons are directed to furnish bail bond in the sum of Rs.10,000/ each with one surety each in the like amount to appear before the Hon'ble High Court as and when court issues notice in respect of any appeal or petition filed against this judgment. Such bail bonds shall be in force for 6 months.
File be consigned to Record Room.
(Dinesh Kumar Sharma) ASJ02(South)/01.03.2011 Page 20 of 19