Amarjeet Singh @ Babloo vs State
2013 Latest Caselaw 1053 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                RESERVED ON : February 12, 2013
                                DECIDED ON : March 04, 2013

+                         CRL.A. 317/2000

       AMARJEET SINGH @ BABLOO                            ..... Appellant

                          Through :      Mr.Bhupesh Narula, Advocate.

                          versus

       STATE                                              ..... Respondent

                          Through :      Ms.Fizani Husain, APP.
                                         SI Amit, PS Model Town.

        CORAM:
        MR. JUSTICE S.P.GARG

S.P.GARG, J.

1. Amarjeet Singh @ Babloo impugns the judgment dated

14.01.2000 in Sessions Case No.70/1998 arising out of FIR No.360/1998

registered at Police Station Model Town by which he was held guilty for

committing offences punishable under Section 307 IPC and 27 of the

Arms Act. Vide order on sentence dated 18.01.2000, he was to undergo

RI for three years with fine `2,000/-.

2. Allegations against the accused were that on 12.07.1998 at

about 08.05 P.M. at Bara Park, Model Town, he voluntarily fired at the

police party consisting of Inspector Suminder Pal Tyagi, SI Satender

Kumar, Constable Rajesh Kumar and Constable Amit Kumar. Secret

information with the police was that the accused would come at 07.00

P.M. at Bara Park, Model Town to meet his associate members of Nazim

Gang. Raiding party was organized and the police party went to spot and

organized 'Nakabandi'. At about 07.15 P.M. the accused came on scooter

bearing No. DL-ISC9933, parked it near the gate of the park and he sat

over it. Nobody came to meet him till 08.00 P.M. Thereafter, the accused

started the scooter and moved towards Mall Road. When signaled to stop,

he abandoned the scooter in running condition and started fleeing the spot.

He also took out country made pistol and fired at the police party.

Inspector Suminder Pal Tyagi also fired in the air and directed him to

surrender. The accused again loaded the country made pistol and fired at

the police party but the pistol did not work. Head Constable Jasbir Singh

and Head Constable Satender Pal overpowered him and snatched the

pistol. Necessary proceedings were conducted and First Information

Report was lodged. Statements of witnesses conversant with the facts

were recorded. In his disclosure statement, the accused revealed that the

scooter was a stolen one. On completion of investigation, a charge-sheet

was submitted against the accused. He was duly charged with and

brought to trial. The prosecution examined 11 witnesses. In his 313

statement the accused pleaded false implication and stated that he was

wanted in some cases in U.P. and was detained in the police station. On

appreciating the evidence and considering the rival contentions of the

parties by the impugned judgment the Trial Court convicted the appellant.

Being aggrieved, he has preferred the appeal.

3. Learned counsel for the appellant urged that the Trial Court

did not appreciate the evidence in its true and proper perspective. PW-2

(Sanjay Kumar), an independent witness, turned hostile and did not

support the prosecution case. Material discrepancies and contradictions

which emerged in the statements of the police witnesses were ignored by

the Trial Court. Learned Additional Public Prosecutor urged that there are

no good reasons to disbelieve the statement of the police witnesses who

were having no animosity with the accused prior to his arrest. Ballistic

report (Ex.PW-9/A) corroborates the ocular testimony of the police

witnesses.

4. I have considered the submissions of the parties and have

examined the record. The accused was apprehended by the police of

Special Staff who had office at a distance of about 7 km from the place of

occurrence. At no stage, local police was joined in the investigation. No

efforts were made to associate independent public witnesses from the

market. PW-2 (Sanjay Kumar) was allegedly associated as an

independent public witness. However, in his deposition before the court

he completely turned hostile. He denied that the accused was

apprehended in his presence or that he had fired at the police party. With

the court's permission, learned Additional Public Prosecutor cross-

examined him. In the cross-examination, he denied suggestions of ld.

Addl. Public Prosecutor that he had stated all these facts to the police and

had signed memos. No ulterior motive was attributed to PW-2 (Sanjay

Kumar) for resiling from his previous statement. I am conscious that

credibility of a witness has to be tested on the touchstone of truthfulness

and trustworthiness. It is not the law that the police witnesses should not

be relied upon and their evidence cannot be accepted unless it is

corroborated in the material particulars by other independent evidence.

The presumption that every person acts honestly applies as much in

favour of a police official as any other person. No infirmity attaches to

the testimony of police officials merely because they belong to police

force. It is equally true that if the court is convinced that what was stated

by a witness has a ring of truth, conviction can be based on such evidence.

The rule of prudence requires more careful scrutiny of their evidence.

Since the court is left with the testimony of police witnesses, it requires

scrutiny with great care and caution.

5. On scrutinizing the testimonies of the police witnesses

number of inconsistencies and discrepancies have emerged to believe

them without independent corroboration. PW-10 (Satinder Kumar)

conveyed the secret information to his Senior officers. However, the

secret information was not reduced into writing. DD No.12 (Ex.PW10/A)

shows departure of Inspector S.P.Tyagi at 06.20 P.M. However, it does

not have contents of the secret information. As per the secret information,

the accused was to reach at Bara Park to meet his gang members.

Apparently, the secret information on this aspect proved wrong as despite

alleged wait till 08.00 P.M. for about one hour nobody came to meet him.

The accused continued to wait while sitting on the scooter. He was not

apprehended by the police at that time though they knew that he was the

member of Nazim gang. During this period, the accused did not attempt

to contact alleged gang members. The purpose of assembling was not

established. No interrogation was made from the accused as to who were

the other members of the Nazim gang who were to reach there. No efforts

were made to apprehend any such gang member. The police witnesses

have not specified from where the accused had taken out the pistol to fire

at the police party. No such pistol was visible when the accused was

sitting on the scooter. The police witnesses have given inconsistent

version as to who was fired at. Some witnesses have stated that the

accused fired at the police party while others deposed that he fired in the

air. Fired bullet/empty cartridge was not recovered from the spot. No one

was injured in the incident. There is material contradiction whether the

police party was in uniform or in civil dress. Some witnesses have stated

that they were in uniform whereas others have stated that only one or two

of them were in uniform. There is inconsistency as to where the writing

work was done. Some have stated that it was done in the park. Others

have stated that it was done while sitting in the vehicle. The witnesses

have given divergent statements whether after the firing incident any

public person from the neighbourhood gathered or not. The scooter was

allegedly a stolen one. However, no charge for having possession of the

stolen property was framed against him. It is not on record that the

accused was arrested under Section 379/411 IPC. There are discrepancies

as to which police officer asked the accused to stop and who gave chase to

him. In the personal search of the accused nothing incriminating was

recovered.

6. Taking into consideration all these lapses and inconsistencies

the statements given by the police witnesses cannot be taken on its face

value without independent corroboration. The conviction of the appellant

cannot be sustained. The appeal is allowed. The conviction and sentence

of the appellant are set aside.

7. Trial court record be sent back forthwith.

(S.P.GARG) JUDGE March 04, 2013 sa