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DELHI HIGH COURT
Vibhu Bakhru, J.
Chhotu Kumar @ Chote Fauji – Appellant
versus
State (Govt. of NCT of Delhi) – Respondent
Crl.A.No.331 of 2017
Decided on 27.1.2021
(A) Criminal Procedure Code, 1973 – Section 276 – Indian Penal Code, 1860 – Sections 186, 353 and 307 – Arms Act, 1959 – Sections 25 and 27 – Obstruction in discharge of public duty, attempt to outrage modesty and attempt to murder – Conviction and sentence – Appellant’s conviction under Section 307 of IPC is premised on the basis that he had fired four shots at police officials – Trial Court has merely copied examination-in-chief of one of witnesses as examination-in-chief of other three witnesses as well – Only changes made in their examination-in-chief are their names and consequential changes, where they mention names of other police officials – Testimony of witnesses cannot be disregarded or ignored only for the reason that their examination-in-chief is identical – It would be necessary to examine evidence led as a whole before ascertaining whether prosecution has established its case beyond any reasonable doubt – Fact that testimonies of certain police officials are identically worded would certainly be a factor while evaluating their evidence – Prosecution had for reasons known to them decided not to examine any of six police officials that had formed a part of raiding team regarding events leading to apprehension of appellant – Evidence of police officers cannot be rejected only on the ground that it is not supported by independent witnesses – However, non-examination of independent witnesses does cast an added duty on court to scrutinize evidence of police officers. (Paras 33, 37, 43 and 45)
(B) Indian Penal Code, 1860 – Sections 186, 353 and 307 – Arms Act, 1959 – Sections 25 and 27 – Obstruction in discharge of public duty, attempt to outrage modesty and attempt to murder – Conviction and sentence – Presumption of innocence must be maintained until accused is found guilty – Even though appellant may be involved in other cases, same could not be considered as a factor to award a harsher sentence because appellant had not been convicted in any of cases at material time – Trial Court erred in considering that appellant was also involved in other cases, while considering quantum of sentence – Appellant acquitted of committing an offence punishable under Section 307 of IPC – Impugned judgment, to the limited extent it convicts appellant for committing an offence punishable under Section 307 of the IPC, set aside. (Paras 61 and 62)
Result: Appeal allowed.
JUDGMENT
Vibhu Bakhru, J.—The appellant has filed the present appeal impugning a judgment dated 30.11.2016, whereby the appellant, Chhotu Kumar @ Chote Fauji, was convicted of the offences punishable under Sections 186, 353 and 307 of the Indian Penal Code (hereinafter ‘IPC’) and Sections 25 and 27 of the Arms Act, 1959 (Arms Act). The appellant also impugns an order on sentence dated 20.12.2016, whereby he was sentenced to (i) rigorous imprisonment for a period of ten years along with a fine of Rs.25,000/- and in default of payment of fine, to undergo simple imprisonment for a further period of one year for committing an offence punishable under Section 307 of the IPC; (ii) rigorous imprisonment for a period of two years along with a fine of Rs.5,000/- and in default of payment of fine, to undergo simple imprisonment for a further period of one month for committing an offence punishable under Section 353 of the IPC; (iii) rigorous imprisonment for a period of three months along with a fine of Rs.500/- and in default of payment of fine, to undergo simple imprisonment for a further period of ten days for committing an offence punishable under Section 186 of the IPC; (iv) rigorous imprisonment for a period of three years along with a fine of Rs.5,000/- and in default of payment of fine, to undergo simple imprisonment for a further period of three months for committing an offence punishable under Section 25(1B)(a) of the Arms Act; and (v) rigorous imprisonment for a period of five years along with a fine of Rs.15,000/- and in default of payment of fine, to undergo simple imprisonment for a further period of six months for committing an offence punishable under Section 27(1) of the Arms Act. All the sentences were directed to run concurrently.
2. The case of the prosecution is that on 05.07.2015, SI Krishan Kumar received secret information in the office of Special Cell to the effect that the appellant, a Constable with Sashatra Seema Bal (SSB), who was absconding, would come at about 7.30-8.00 P.M, in a Maruti Wagon-R vehicle (bearing registration no. 3444) for delivering illegal arms and ammunition, for distribution in Delhi and Haryana with the aid of a friend, at Rajiv Nagar Bus Stand near the under-construction Signature Bridge, Delhi. He also informed that the appellant is a resident of Uttar Pradesh and is involved with gangsters and in various criminal cases including murder, attempted murder, looting, smuggling of weapons. And, he is quite capable of attacking the police as well.
3. The information received was entered as DD No. 13. The secret informer was produced before Inspector Govind Sharma and on his instructions, a team comprising of ten officials – ASI Ajaibir, SI Krishan Kumar, HC Rajkumar, HC Umesh, HC Sandeep, HC Rajiv, HC Sanjeev, HC Surender, HC Narender, and Ct. Anshu – was constituted.
4. The said team left for the spot along with arms and ammunitions as well as the IO kit. The secret informer accompanied the said team. The police team used three vehicles –a Government police gypsy, a private car and one motorcycle. The team reached the spot and SI Krishan Kumar briefed the members of the team and deployed them at various spots.
5. According to the prosecution, a Maruti Wagon-R vehicle bearing registration No.DL-3CZ-3444 arrived at the spot at about 07.35 p.m. from the direction of Khajuri and was going towards Rajiv Nagar Bus Stand and stopped about 15/20 meters from where the police vehicle (Gypsy) was stationed. One person got out from the said vehicle. The secret informer identified the said person as the appellant (Chhotu Kumar @ Chote Fauji). Thereafter, the secret informer left the spot. According to the police official, the appellant appeared to be waiting for someone. SI Krishan Kumar, who was travelling in the police gypsy got out of the same and signaled to the other members to surround the appellant. The prosecution alleges that the accused apparently sensed their presence and immediately
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