Sumer Singh vs State
2011 Latest Caselaw 2950 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI
                         Judgment delivered on: June 01, 2011

+      CRIMINAL APPEAL NO.810/2003

       MUNESH KUMAR & ANOTHER                ....APPELLANTS
              Through: Ms. Shuchita Srivastava, Advocate/
                        Amicus Curiae for appellant No.1.
                        Mr. Rajesh Kumar Kadyan, Advocate for
                        appellant No.2.
                   Versus

       STATE                                             .....RESPONDENT

                      Through:       Mr. Sunil Sharma, APP.

                                          WITH

       CRIMINAL APPEAL NO.826/2003

       SUMER SINGH                           ....APPELLANT
               Through: Mr. Prag Chawla, Advocate
                    Versus

       STATE                                            .....RESPONDENT
                      Through:       Mr. Sunil Sharma, APP.
                                          AND

       CRIMINAL APPEAL NO.844/2003

       VIJAY KUMAR                                        ....APPELLANT
                Through:             Mr. M.L. Yadav, Advocate

                              Versus

       STATE                                             .....RESPONDENT
                      Through:       Mr. Sunil Sharma, APP.

       CORAM:
       HON'BLE MR. JUSTICE AJIT BHARIHOKE
1.     Whether Reporters of local papers
       may be allowed to see the judgment?

2.     To be referred to the Reporter or not ?
3.     Whether the judgment should be
       reported in Digest ?


 AJIT BHARIHOKE, J.(ORAL)

1. Above three appeals are preferred against the impugned

judgment dated 15th November, 2003 in Sessions Case No. 35/01,

FIR No. 16/98, P.S. Narela, whereby appellant Vijay Kumar has been

convicted for the offences punishable under Sections 399/402/411

IPC & Section 25 of the Arms Act, appellant Munesh @ Munna has

been convicted for the offences punishable under Sections 399/402

IPC & Section 25 of the Arms Act and appellants Sumer @ Malhotra

and Naresh Kumar have been convicted for the offences punishable

under Sections 399/402 IPC as also the consequent order on

sentence dated 21st November, 2003.

2. Briefly stated, case of the prosecution is that on 13 th January,

1998 at around 6.30 p.m., SI Munshi Ram (PW9) received a secret

information in the police station that some boys are gathering in the

Cremation Ground, Saboli Narela Road to plan a dacoity. Those

boys, as per the informer, were having unlicensed arms as well as a

stolen Maruti Car. SI Munshi Ram organized a raiding party by

joining the police officials and left the police station after informing

the SHO. On the way to Cremation Ground, SI Munshi Ram

requested 10/15 passersby to join the raiding party but they all

refused. The raiding party reached Cremation Ground, Saboli Narela

Road at about 07.00 p.m. SI Munshi Ram instructed the members

of raiding party to take suitable positions and told them that after

hearing the conversation of those persons, he would give a signal by

lighting a matchstick and on the receipt of signal, they should

apprehend those persons. Thereafter, on the pointing of the

informer, SI Munshi Ram went near the boundary wall of the

Cremation Ground near the gate to overhear the conversation of

persons sitting within the premises of Cremation Ground. There was

a Maruti Car No. DAQ-2359 parked outside the Cremation Ground. It

is alleged that those persons were planning a dacoity and their boss

seemed to be the appellant Vijay. They were planning that they

would go in Vijay's Car to the petrol pump at GTK Road and would

loot the cash. Vijay explained the plan that accused Munesh,

Naresh, Sumer & Anupam would go inside the room of the petrol

pump and he would stand outside with pistol to prevent anyone

from entering the room. He also told Munesh, who was having a

knife and accused Naresh and Sumer, who were having iron rods to

ensure that nobody was permitted to come outside the room and if

anybody tries to come out of the room he should be attacked.

Anoop was directed to take possession of the money kept in the

room. SI Munshi Ram gave signal to the raiding party by lighting the

matchstick and on this, members of the raiding party rushed to the

spot and apprehended all five of them. On search, Vijay was found

in possession of the country-made pistol and Munesh was found in

possession of 'Churi'. Other accused persons were found in

possession of iron rods. The weapons recovered from their

possession were converted into sealed packets after preparing the

sketches and taken into possession. Vijay Kumar, on interrogation,

stated that he had purchased the Maruti Car parked outside for `

15,000/- from one Dinesh. A disclosure memo in this regard

Ex.PW4/H was prepared. Car was also taken into possession vide

memo Ex.PW6/A. SI Munshi Ram prepared 'rukka' Ex.PW2/A at the

spot and sent it to the police station through Contable Rajpal Singh

for the registration of the case. On the basis of said 'rukka', FIR

Ex.PW2/B was registered and investigation was entrusted to SI

Munshi Ram, the Investigating Officer. SI Munshi Ram arrested the

accused persons and conducted their personal search vide

respective memos Exs. PW4/G1 to 4/G5. Investigation revealed that

Maruti Car No. DL-1CE-4420 was stolen property belonging to PW3

Mahavir Prasad. On completion of investigation, the appellants and

their co-accused were sent for trial.

3. Learned Additional Sessions Judge charged the appellants for

the offences punishable under Sections 399/402 IPC. He also

charged the accused Munesh for the offence punishable under

Section 25 of the Arms Act and accused Vijay for the offences

punishable under Section 411 IPC and Section 25 of the Arms Act.

The appellants pleaded not guilty to the charges and claimed to be

tried.

4. In order to bring home the guilt of the appellants, prosecution

has examined nine witnesses.

5. PW9 SI Munshi Ram, Raid-cum-Investigating Officer has

testified that on 13th January, 1998 at about 6.30 p.m., his informer

contacted him at the police station and told that some boys were

planning to commit dacoity in the Cremation Ground, Saboli Narela

Road and that they were carrying unlicensed arms and they were

also in possession of a stolen car No. DAQ-2359. He apprised the

SHO about the information and organized a raid party by joining

Head Constable Joginder, Head Constable Yogender, Head Constable

Hawa Singh, Constable Bhagwan Sahai and Constable Rajpal Singh.

On the way to Cremation Ground, he requested 10/15 passersby to

join the raiding party but they declined. SI Munshi Ram claimed that

the raid party reached the Cremation Ground at about 7.00 p.m. He

instructed the staff to wait and went ahead towards gate of

Cremation Ground to overhear the conversation of the persons

sitting in the Cremation Ground. He overheard that they were

planning to commit dacoity at petrol pump, GTK Road. On this, he

gave pre-appointed signal by lighting a matchstick. On the receipt of

signal, the members of the raiding party rushed to the spot and

apprehended the appellants as well as their co-accused Anoop

(P.O.). SI Munshi Ram claimed that on search, a pistol with one

cartridge was recovered from the appellant Vijay, a 'churri' was

recovered from the appellant Munesh and iron rods were recovered

from the possession of appellants Sumer and Naresh, which were

taken into possession after completing necessary formalities vide

memos Ex.PW4/B to Ex.PW4/F. SI Munshi Ram further stated that a

Maruti Car No. DAQ-2359 was found parked outside the Cremation

Ground which was also taken into possession vide memo Ex.PW6/A.

PW9 stated that he prepared 'rukka' Ex.PW2/A detailing the facts

and sent it to the police station for registration of the case. PW9

further claimed that on interrogation, appellant Vijay made a

disclosure statement Ex.PW4/H wherein, he stated that he had

purchased aforesaid Maruti Car from his friend Dinesh for ` 50,000/-.

He identified the car Ex.P1, pistol as Ex.P2, cartridge as Ex.P3,

dagger as Ex.P4 and iron rods as Exs. P5 & P6. PW4 Constable

Bhagwan Sahai, PW6 ASI Hawa Singh and PW7 Constable Rajpal

Singh, who were the members of the raiding party have also

deposed to similar effect.

6. The appellants, when examined under Section 313 CrPC

denied the prosecution version in totality and claimed that they

have been picked up by the police and falsely implicated in this

case. No witness in defence has been examined.

7. Learned Ms. Shuchita Srivastava, Amicus Curiae appearing for

the appellant Munesh has assailed the impugned judgment on the

ground that it is based upon incorrect appreciation of the facts.

Learned amicus curiae has submitted that the trial court has failed

to appreciate that the story of the prosecution is highly unnatural to

be believed. There is no public witness to support the version of

police officials. The case of the prosecution is essentially based

upon the testimony of the raid officer PW9 Munshi Ram who alone,

as per the case of prosecution is sole witness of conversation

between the appellant planning to commit dacoity and he also is the

Investigating Officer. This practice, according to learned amicus

curiae, is highly unfair and against the principle of natural justice, as

such, the appellants are entitled to acquittal. Thus, she has strongly

urged for acceptance of the appeal.

8. Learned Sh. Rajesh Kumar Kadyan, Advocate appearing for the

appellant Naresh Kumar, learned Sh. Prag Chawla, Advocate for the

appellant Sumer Singh and learned Sh. M.L.Yadav, Advocate for the

appellant Vijay Kumar have also argued on the same lines.

9. Learned Sh. Sunil Sharma, APP, on the contrary, has argued in

support of the impugned judgment. He submitted that the learned

Additional Sessions Judge has rightly relied upon the testimony of

PW4 Constable Bhagwan Sahai, PW6 ASI Hawa Singh, PW7

Constable Rajpal Singh and PW9 SI Munshi Ram, which is consistent

with the case of prosecution and does not suffer from material

contradictions. Learned APP contended that absence of public

witnesses in this case is of no consequence for the reason that all

the above witnesses have categorically stated that effort was made

to join independent witnesses by requesting 10/15 passersby. If

they did not agree to join the raiding party, the raid officer cannot

be faulted. Learned APP submitted that otherwise also, there is no

law which provides that in absence of a public witness, testimony of

police officials cannot be relied upon if otherwise found suitable.

Thus, learned APP has urged for dismissal of the appeals.

10. I have considered the rival contentions and perused the record.

It would be seen that appellant Vijay has been charged for the

offence under Section 411 IPC for having possession of stolen car

belonging to PW3 Mahavir Prasad on the basis of his disclosure

statement made to the police during investigation. Obviously, the

disclosure statement being confession made to the police is

inadmissible in evidence in view of Section 26 of the Evidence Act,

1872. There is no other evidence on record to link the aforesaid car

with accused Vijay. It is the case of the prosecution that the

aforesaid car was found parked outside the cremation ground.

Appellant Vijay was sitting within the cremation ground. Keys of the

car are not stated to have been recovered from the possession of

Vijay. Therefore, there is no evidence to link Vijay with aforesaid

abandoned car claimed to be a stolen property. Further, the number

of the car allegedly seized at the spot is DAQ-2359, whereas

according to PW3 Mahavir Prasad registration number of his stolen

car is DL-1CE-4420. No witness has testified about the engine

number and chassis number of recovered car so that it could be

linked with the engine number and chassis number of the stolen car

of PW3 Mahavir Prasad. On this count also, it is doubtful whether or

not the car recovered by the police was the stolen car belonging to

Mahavir Prasad. Thus, the conviction of appellant Vijay cannot be

sustained under Section 411 IPC.

11. Case of the prosecution is that the raid party led by PW9 SI

Munshi Ram left the Police Station on the receipt of secret

information at 6:30 pm for cremation ground, Saboli, Narela Road.

However, prosecution has failed to prove on record the departure

entry of the raid party recorded in the daily diary register

maintained at the Police Station. This circumstance raise suspicion

against the correctness of prosecution version. The doubt against

prosecution version is further compounded by the fact that there is

no independent witness in this case. SI Munshi Ram (PW9) has tried

to explain the absence of public witnesses by stating that on the

way to the cremation ground, he requested 10/15 passersby to join

the raiding party but no one agreed. I do not find the explanation

plausible for the reason that SI Munshi Ram (APW9) in his cross-

examination has admitted that there were many residential houses

and market in the way, but he did not request any shopkeeper or

resident from those houses to join the raiding party. The fact that

the Investigating Officer did not care to request the shopkeepers or

residents whose addresses were certain and proved, chose the

passersby for making a request gives rise to an inference that he

was not sincere in his effort to join public witnesses and a possibility

cannot be ruled out that the explanation given by the raid officer is

a make believe story. Further, the story of the prosecution is highly

unnatural. If prosecution witnesses are to be believed that

appellants were armed with a pistol, dagger and iron rods. None of

the witnesses has stated that the appellants tried to resist their

arrest and run away, which conduct is highly unnatural to be

believed. Not only this, this is a clear case of unfair investigation.

Admittedly, as per the version of SI Munshi Ram (PW9) and other

prosecution witnesses, SI Munshi Ram alone had gone towards the

main gate of cremation ground to overhear the conversion of the

appellants. Munshi Ram SI is the author of rukka/complaint which

formed basis for registration of FIR. Despite that the investigation of

the case was entrusted to SI Munshi Ram. Above procedure

adopted by the police, to my mind, is unfair and against the

principle of natural justice. The purpose of the investigation is to

inquire into the correctness of the allegations made in the

complaint. When a complainant is entrusted with the responsibility

of investigation into allegation, as per the natural course of human

conduct, he is not expected to conclude against the allegation in the

complaint. This infirmity in the investigation further compounds the

doubt against the prosecution case, particularly, in view of the fact

that there is no other witness to corroborate the version of the

Investigating Officer/Raid Officer SI Munshi Ram that the appellants

were planning to commit dacoity.

12. In view of the discussion above, I do not find it safe to base

conviction of the appellants on the testimony of the police officials,

namely, PW4 Constable Bhagwan Sahai, PW6 ASI Hawa Singh, PW7

Constable Rajpal Singh and PW9 Munshi Ram in absence of

corroboration by any independent witness. Thus, I find it difficult to

sustain the conviction of the appellants under Sections 399/402 IPC,

Section 411 IPC and Section 25 of the Arms Act.

13. Appeals are, therefore, accepted and appellants are acquitted

on the charges giving them benefit of doubt.

14. Appeals are disposed of accordingly.

(AJIT BHARIHOKE) JUDGE JUNE 01, 2011/akb/pst