Delhi High Court
Sehdev Singh vs State on 21 January, 2014
$~R-10 & 11
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL.APPEAL No. 451/2001
RAJBIR SINGH ..... Appellant
Through: Mr. C.L. Gupta & Mr. Akashdeep
Verma, Advocates
Versus
STATE ..... Respondent
Through: Mr. Vinod Diwakar, Additional
Public Prosecutor for respondent-
State
+ CRL.APPEAL No.452/2001
SEHDEV SINGH ..... Appellant
Through: Mr. C.L. Gupta & Mr. Akashdeep
Verma, Advocates
Versus
STATE ..... Respondent
Through: Mr. Vinod Diwakar, Additional
Public Prosecutor for respondent-
State
CORAM:
HON'BLE MR. JUSTICE SUNIL GAUR
Crl. Appeal No. 451/2001 Page 1
Crl. Appeal No. 452/2001
ORDER
% 21.01.2014
Appellants in the above captioned two appeals stand convicted for
offences under Sections 399/ 402 of IPC in FIR No. 100/1990, registered
at police station Vinay Nagar, Delhi. Both appellants have been also
convicted for offence under Section 25 of The Arms Act in two separate
FIRs i.e. FIR No. 102/1990 and FIR No. 103/1990. Vide impugned
judgment of 27th April, 2001 appellants have been sentenced to rigorous
imprisonment for a period of three years each with fine and to rigorous
imprisonment of one year each for offence under Section 25 of The Arms
Act.
Since the common impugned judgment of 27th April, 2001 is under
challenge in these two appeals, therefore, with the consent of learned
counsel representing both sides, these two appeals are heard together and
are being disposed of by this common order.
The prosecution version, as noticed in the impugned judgment is as
under:-
'The case of the prosecution in brief is that on 24 th
March, 1990 at about 6:30 P.M. SI Ram Swaroop got secret
information that Raju, Sehdev who are known as Badmaash of
the area are available in Safdarjung Enclave along with their
group and are planning to commit dacoity in the house of some
Mr. Grover and it was further informed that about 8.30 p.m.
they will assemble near Kamal Cinema in gypsy No. DAE 3297
of blue colour. On the basis of this information, SI Bhasin
prepared the raiding party consisting of Inspec. Ajay Sharma,
Insp. S.K. Giri, ASI Bani Singh and some constable under the
Crl. Appeal No. 451/2001 Page 2
Crl. Appeal No. 452/2001
leadership of Insp. Rajinder Bakshi. They reached near cinema
at about 7.45 P.M. and requested 4-5 public persons to join the
raiding party. One Om Prakash, public witness, agreed to join
the raiding party. At about 8.45 P.M., one gypsy of blue colour
stopped at the gate of Kamal Cinema and SI Bhasin sent Om
Prakash to listen to the talks of the accused persons as to what
they were talking. At about 10 minutes, thereafter, Om prakash
came and informed the police that the persons who is sitting on
the driver's seat was giving instructions to the other
companions sitting inside the gypsy that Vinay will remain
outside the house and remaining people will go inside the house
and they have to take only cash and jewellery. Then, SI Bhasin
gave the indication and those persons were gharrowed by the
police. SI Bhasin took out his revolver but two persons sitting
inside the gypsy opened the door and ran away. Person who
was sitting on the driver's seat was apprehended and on
enquiry he disclosed his name as Rajender Singh. He was
holding revolver but he was controlled by SI Ajay Sharma and
HC Chander Kant. They took the loaded pistol from his hand
and on checking it was found to contain 7 bullets. In the
meantime, one person tried to come out from the left door of
gypsy but he was apprehended and on enquiry he disclosed his
name as Sehdev and he was holding a pistol and was aiming at
the police officials, he was apprehended by Yogender Dutt and
Ashok Kumar and the loaded pistol was taken from him. SI S.K.
Giri checked the same and found five cartridges inside the
pistol. Another person who was sitting on the left hand side
tried to ran away but was apprehended by Rajvir and ASI Bani
Singh alongwith Const. Krishna. He was also holding one
revolver of .455 bore and he was apprehended and revolver
was taken from him and it was found to contain 4 cartridges.
He disclosed his name as Vijay Kumar. Hence, a case under
Section 399/402 IPC was registered alongwith case under
Section 25/54/59 of The Arms Act."
On the strength of deposition of thirteen witnesses, who are police
officials, appellants have been convicted while rejecting evidence of
Crl. Appeal No. 451/2001 Page 3
Crl. Appeal No. 452/2001
defence witnesses. The stand of appellants before trial court was of denial
and false implication. It was asserted by appellants before trial court that
they were illegally detained on suspicion and when nothing was found
against them, then to avoid any allegation of illegal detention, they have
been falsely implicated in this case. After trial, appellants stand
convicted and sentenced, as noticed above.
Learned counsel for appellants to assail the impugned judgment
has drawn the attention of this Court to Sections 399/402 of IPC to point
out that for an accused to be prosecuted under the aforesaid provisions of
law, there has to be five persons whereas in the instant case, there were
four persons. It was contended on behalf of appellants that one Om
Prakash, who had joined the raiding police party and had heard the
conversation between appellants and their co-accused and the said
information so heard by Om Prakash was purportedly passed on to the
police party, which led to the prosecution of appellants in this case. It was
submitted by learned counsel for appellants that in the absence of
deposition of said Om Prakash, the basic case of prosecution is
demolished and what was told by Om Prakash to the raiding party, is hear
say evidence.
Regarding recovery of pistol from appellant- Rajbir Singh, it was
contended that his conviction for offence under Sections 25 of The Arms
Act is unsustainable, as sanction granted for prosecution of Rajbir Singh
was not proved. As regards appellant- Sehdev Singh, it was contended
that the alleged recovery of pistol from him is rendered doubtful in view
of the fact that the pistol recovered from co-accused- Rajinder Singh was
Crl. Appeal No. 451/2001 Page 4
Crl. Appeal No. 452/2001
deposited on 23rd March, 1990 whereas the alleged apprehension of
appellants was on 24th March, 1990. Attention of this Court was drawn to
deposition of MHC (M) -Vijender Pal Singh (PW-1) and SI Jagdish
Chander (PW-4) to point out that although MHC(M)- PW-1 has deposed
that recovered pistol was deposited with him on 24 th March, 1990 but SI-
Jagdish Chander (PW-4) had deposed that the sealed parcels containing
the recovered pistols were received by him on 23 rd March, 1990.
According to learned counsel for appellants, this causes reasonable doubt
about the veracity of the entire prosecution case. Thus, acquittal of both
the appellants is sought in these two appeals.
Learned Additional Public Prosecutor for respondent-State
supports the impugned judgment and submits that offence under Sections
399/402 of IPC is clearly proved as the raiding party had found that five
persons were at the spot and out of them, two had managed to run away
and three of them were apprehended. It was submitted by learned
Additional Public Prosecutor for respondent-State that from evidence on
record, prosecution case stands conclusively proved and there is no
substance in these two appeals.
Upon hearing both sides and on scrutiny of evidence on record and
impugned judgment, I find that prosecution could not produce the said
Om Prakash in evidence because he was not traceable. However, the
absence of deposition of said Om Prakash who had heard the
conversation of accused persons is of utmost importance in cases like the
instant one. Prosecution is seriously handicapped due to inability to get
said Om Prakash examined at trial.
Crl. Appeal No. 451/2001 Page 5
Crl. Appeal No. 452/2001
In the light of discrepant evidence on record, I find that it is a fit
case to extend benefit of doubt to appellants for the main offence i.e.
under Sections 399/402 of IPC.
Since sanction for prosecution of appellant - Rajbir Singh for
offence under Section 25 of The Arms Act does not stand proved,
therefore, benefit of doubt is extended to him and he is acquitted of the
aforesaid offence. Regarding appellant- Sehdev Singh, the contradiction
in the deposition inter se MHC(M)- PW-1 and PW-4 regarding receiving
of sealed parcels containing fire arms a day before the alleged recovery,
renders the entire prosecution case doubtful. Extending benefit of doubt
to appellant- Sehdev Singh, he is also acquitted of the offence under
Section 25 of The Arms Act.
In view of the aforesaid, both these appeals are allowed. While
extending benefit of doubt to appellants, they are acquitted of the charges
framed.
(SUNIL GAUR)
JUDGE
JANUARY 21, 2014
r
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Crl. Appeal No. 452/2001
