CHHOTU KUMAR @ CHOTE FAUJI  Vs STATE (GOVT OF NCT OF DELHI)

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IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 27 .01.202 1
+ CRL. A. 331/2017

CHHOTU KUMAR @ CHOTE FAUJI …..Appellant

Versus

STATE ( GOVT. OF NCT OF DELHI) …..Respondent

Advocates who appeared in this case:
For the Appellant : Mr. Akshay Bhandari and Mr . Digvijay
Singh, Advocates.
For the Respondent : Mr. Amit Gupta, APP for State.

CORAM
HON’BLE MR JUSTICE VIBHU BAKHRU
JUDGMENT
VIBHU BAKHRU, J
1. 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 se ntence dated 20.12.2016, whereby he was
sentenced to (i) rigorous imprisonment for a period of ten years along
with a fine of ₹25,000/ – and in default of payment o f fine, to undergo
simple imprisonment for a further period of one year for committing
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an offence punishable under Section 307 of the IPC; (ii) rigorous
impris onment for a period of two years along with a fine of ₹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 p eriod
of three months along with a fine of ₹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 ₹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(1 B)(a) of the Arms Act ; and (v)
rigorous imprisonment for a perio d of five years along with a fine of
₹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 ru n 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, w ould 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
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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 informa tion 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 fro m the
said vehicle. The secret informer identified the said person as the
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appellant (Chhotu Kumar @ C hote 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 got into
his car and started driving to wards the Signature Bridge. The police
team pursued the appellant in the police gypsy and intercepted his car
at a distance of about 250 to 300 yards. SI Krishan Kumar allegedly
warned the appellant; however, he did not heed to the warning. He
came out of the vehicle ; took out a pistol from his dub and loaded it.
He was warned once again and asked to surrender but he did not do so
and he fired from his pistol. The first bullet hit the mudguard of the
left wheel of the police vehicle .
6. Thereafter, SI Krisha n Kumar and HC Raj Kumar got down
from the police vehicles and went towards him but he fired at them.
The second bullet hit SI Krishan Kumar in his chest but he remained
unharmed as he was wearing a bullet proof jacket . The appellant also
fired at HC Raj Kumar and that bullet also hit his bullet proof jacket.
Thereafter, ASI Ajaibir and HC Umesh Kumar also came forward to
apprehend the appella nt but he fired upon them as well. The bullets
fired at them also hit their bullet proof jacket s. In all, one bullet each
hit the bullet proof jackets worn by SI Krishan Kumar, HC Raj
Kumar, ASI Ajaibir and HC Umesh Kumar. They also fired in their
self defence but their bullets neither hit the appellant nor the vehicle
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(Wagon R) , which he was using to take cover . The police officials
alleged that there was a moment when the appellant attempted to
change the magazine of his pistol and he was overpowered at t hat
moment. SI Krishan Kumar snatched his pistol and he found that the
pistol still contained one live round in its chamber. He also snatched
the magazine from the appellant , which had six live cartridges.
7. After being apprehended, the appellant disclosed his name and
address. The vehicle ( Maruti Wagon -R) used by him was checked and
a travelling bag containing thirty pistols was found kept on the rear
seat. The appellant allegedly disclosed that he had brought the same at
the instance of one Lokender from K hargaun, Madhya Pradesh for
delivering the same in Delhi. Each of the pistols had magazines inside
them. The pistols, seven live cartridges and two magazines were
recovered from the appellant and their sketches were prepared. The
police officials claimed t hat the magazines and the pistols were kept in
separate plastic containers with two pistols each. They were then
sealed with the help of a doctor tape.
8. SI Krishan Kumar prepared a rukka and sent the same through
HC Raj Kumar for registration of the FIR. Af ter the FIR was
registered, the investigation was assigned to SI Amrik Singh.
9. SI Amrik Singh prepared a site plan of the spot at the instance
of SI Krishan Kumar. Five empty cartridges were also recovered,
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which allegedly pertained to the bullets fired by the appellant. They
were kept in a separate sealed container. Four empty cartridges from
the bullets fired by the members of the police team were also
recovered from the spot and were sealed and seized. The bullet proof
vests allegedly worn by the four police officials (SI Krishan Kumar,
HC Raj Kumar, ASI Ajaibir and HC Umesh Kumar) were also seized
and sealed.
10. The vehicle ( Wagon -R) used by the appellant was found to be
stolen and a subject matter of FIR No.2645 , registered with PS Crime
Branch, Delhi. The same was seized under Section 201 of the Cr.PC.
Thereafter, the accused was taken for his medical examination to All
India Institute of Medical Sciences (AIIMS). Swabs from bo th his
hands were taken separately for tracing any gunpowder residue.
11. The case property was deposited in the malkhana . The case
property as well as the chemical hand wash swabs of the accused were
sent to CFSL, CBI for forensic examination. The bullet proo f vests
were also sent for forensic examination.
12. During the trial, the prosecution examined eleven witnesses.
The statement of the appellant was also recorded under Section 313 of
the Cr.PC . He claimed that he had been falsely implicated and the
police had planted their illegal weapons and framed him.
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Evidence (other than eyewitnesses)
13. Shri Pramod Kumar Mendiratta, the owner of the Wagon -R
vehicle bearing registration No.DL -3CZ-3444 was examined as PW6
and he proved that he was the owner of the vehicle and the said
vehicle was stolen on 25.05.2015. He also testified that at his
instance, an FIR regarding theft of his vehicle had been registered.
14. HC Rajesh was examined as PW1 and he testified that he had
driven a police gypsy bearing no.DL -1CJ-3486 to CFSL, CBI for his
forensic examination by the Ballistics Department/Division at CGO
Complex. He testified that the said vehicle was examined and
there after, he drove the vehicle back to the Special Cell on
08.07.2015.
15. Ct. Anshu Choudhary was examined as PW8. He testified that
on 09.07.2015, he was posted with the Special Cell, Lodhi Colony and
on that date, he had collected 22 pullandas from the malkha na. 16
pullandas were sealed with the seal of SPL CELL NDR 31 and 3
pullandas were sealed with the seal of SPL CELL NDR 21. The
remaining 3 pullandas were sealed with the seal of AIIMS. He
testified that he had also collected the FSL Form s and he deposited the
said 22 pullandas with CFSL, CBI, CGO Complex, Lodhi Road. He
had transported the same under RC Number 84/21/15. He deposed that
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he had secured a receipt of the pullandas from the CFSL, CBI, CGO
Complex and had deposited the same to MHC(M), HC Sanjeev .
16. The three reports rece ived from CFSL, CBI, New Delhi – which
were marked as Ex.PX1, Ex.PX2 and Ex.PX3 – were not disputed by
the appellant. The report, marked as Ex.PX1, indicated that one
country made pistol , which was sealed in parcel No.A , was an arm and
seven 7.65 mm cartridges included in the said parcel were
ammunition. The CFSL report marked as Ex.PX2 indicated that the
fifteen parcels received by CFSL contained country made pistols and
magazines which w ere firearms. The CFSL report marked as Ex.PX3
indicated that the three parcels , which contained the cotton swabs
taken from the accused had traces of nitrite, which is one of the main
constituents of gunshot residue.
17. SI Mahipal Singh, who was posted as t he General Store In-
charge of PS Special Cell was examined as PW2. He testified that he
had issued four bullet proof jackets to HC Umesh for his team on
03.07.2015. He also produced the relevant entries made in the B.P.
Jacket Article Register for issuance of the said jackets. In addition, he
testified that on 05.07.2015, he had issued one Glock Pistol
No.AADP081 with ten rounds of 9 mm to SI Krishan Kumar (No.
4226) ; one 9 mm pistol No.1621 -2041 with butt n o. 5159 with 10
rounds to HC Umesh Kumar (No. 750/ SB); one 9 mm pistol No.1621 –
2074 with butt n o. 5192 with 10 rounds to SI Aja yveer Singh ( No.
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1180SB) and one 9 mm pistol No.1621 -2065 with butt n o. 5183 with
ten rounds to HC Raj Kumar (No.794/SB). He also produced the
relevant entries made for the issuance of arms and ammunition s in the
Arms Ammunition Distribution Register (Ex.PW2/A and Ex.PW2/B).
18. SI Mahender Singh was examined as PW3. He testified that on
the intervening night of 05.07.2015/06.07.2015, he was posted at PS
Special Cell as a Duty Officer from 12:00 midnight to 08:00 a.m. He
testified that at about 12.30 am , he had received a rukka (Ex.PW3/B )
sent by SI Krishan Kumar through HC Raj Ku mar and on the basis of
the said rukka , an FIR bearing no. 46/2015 (Ex.PW3/A) was recorded
in his presence.
19. HC Sanjeev Kumar was examined as PW11. He testified that on
06.07.2015 , he was posted at PS Special Cell as MHC(M) . He testified
that the IO , SI Amrik Singh , had deposited fifteen plastic containers
containing pistols and cartridges , which were sealed with a doctor tape
and were bearing the seal of SPL CELL NDR 31. In addition, SI
Amrik Singh had also deposited three othe r plastic containers sealed
with a similar seal along with the FSL Form. The said containers
contained empty cartridges. One of them also contained a pistol and a
magazine. He further stated that SI Amrik Singh had also deposited
four bullet proof jackets marked as BP1, BP2, BP3 and BP4 , which
were kept in two white plastic sacks and were duly sealed with the
seal of SPL CELL NDR 21.
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Evidence of the eyewitness
20. SI Krishan Kumar deposed as PW -4. He deposed that prior to
the incident in question; the officers of Special Cell had raided and
arrested several accused persons, who had been involved in supplying
arms and ammunitions . He stated that by conducting such raids, more
than one hundred accused persons had been arrested and arms and
ammunition s in large quantit ies had been recovered. He stated that on
05.07.2015, he was present in the office of Special Cell, when one
secret informer informed him that one absconding constable from
Sastra Seema Bal, who was engaged in supplying arms and
ammunitio ns to miscreant elements , will bring illegal arms and
ammunitions from Khargaun, Madhya Pradesh in a Wagon -R vehicle
(bearing registration number 3444). He stated that the secret informer
had further informed him that the constable will come between 7:30 –
8:00 pm in the said car near Rajiv Nagar Bus Stand, under –
construction Signature Bridge, behind Nanaksah Gurudwara, Delhi for
the purpose of supplying the same. The secret informer had further
stated that the accused would not be afraid to attack the police team
and further, he had been involved with gangsters as well as in cases of
dacoities, murder, attempt to murder and other crimes . He deposed
that he produced the secret informer before Inspector Govind Sharma
and was asked by him to take action regardin g the said information.
He stated that he reduced the said information into writing in the
rojnamancha and thereafter, he had organised a raiding team, under
the supervision of Inspector Govind Sharma , which comprised of ASI
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Ajaybir, HC Rajkumar, HC Umesh, HC Sandeep, HC Rajiv, HC
Sanjeev, HC Surender, HC Narender , Ct. Anshu and himself. He
further deposed that at about 06:00 pm, they had left the office of
Special Cell along with the secret informer in a government gypsy,
one private vehicle and one motor cycle. He deposed that they had
also carried the IO kit, bullet proof jackets and arms and ammunitions.
He further deposed that on the way to the spot, he contacted few
public persons to become witnesses to the raid but none agreed . He
deposed that he had briefed the members of the raiding team and
deployed them at the spot. He testified that at about 7:35 pm, the said
Wagon -R vehicle came from the side of Khajuri towards Rajiv Nagar
Bus Stand and stopped there and thereafter, one person alighted from
the s aid car, who was identified by the secret informer to be the
accused Chhotu @ Fauji. The said accused appeared to be waiting for
someone . He stated that t hereafter, he (PW4 ) came out from the gypsy
and gave a signal to the raiding team to surround the accu sed. He
deposed that the accused smelled their presence and immediately got
into his Wagon -R vehicle and drove the same towards the Signature
Bridge. He stated that they chased the said Wagon -R vehicle in the
gypsy being driven by HC Umesh and intercepted the said Wagon -R
after a distance of about 250 -300 yards. He stated that they warned the
accused (the appellant) that he was surrounded by the police team and
they had information that he was carrying illegal a rms. Upon hearing
this, the accused had come out from his car and t ook out a pistol from
his dub and loaded the same. PW4 further deposed that they had
warned the accused to not use the weapon, however, he fired a shot,
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which had hit the mudguard of the le ft wheel of the gypsy. He stated
that thereafter, he and HC Rajkumar alighted from the gypsy and took
out their respective weapons and moved towards the accused. He
stated that upon mov ing ahead to apprehend the accused, the accused
fired by taking an aim towards him and the bullet hit his bullet proof
jacket in the chest portion. He deposed that he also fired a shot from
his service revolver in his self defence. Thereafter, HC Rajkumar tried
to overpower him but the accused also fired at him, which had res ulted
in the bullet hitting his bullet proof jacket in the chest portion. He
stated that ASI Aja ybir and HC Umesh Kumar came forward while
covering for them but the accused fired on them as wel l. The bullets
fired by the accused resulted in hitting their b ullet proof jacket. He
affirmed that in their self defence, ASI Aja ybir, HC Rajkumar and HC
Umesh Kumar also fired one shot each. He deposed that they
overpowered the accused when he paused to change the magazine of
his pistol . He deposed that he snatched the pistol from the hands of the
accused and upon checking it, one live round was found in the
chamber. He stated that he had also snatched the magazine from the
hands of the accused and six live cartridges were found in it. He
further deposed tha t he interrogated the accused and the accused
disclosed his name and address as Chhotu Kumar @ Chhote Fauji, S/o
Shaligram, R/o Village Kacchotpura, PS Gonda, Dist. Aligarh, U.P.
He stated that he had also conducted a cursory search of the accused
but no o ther weapon or ammunition was found on him. He further
stated that one red colour trolly travelling bag was recovered from the
rear seat of the said car and upon checking the bag, thirty pistols
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wrapped in newspapers and covered by cloth were found. He sta ted
that upon interrogation, the accused disclosed that he brought the said
pistols at the instance of one Lokender from Khargaun, Madhya
Pradesh and the same had to be supplied in Delhi with the assistance
of Lokender. He stated that he had prepared the sketch of one pistol,
seven live cartridges and two magazines recovered from the accused
(Ex PW4/A) and thereafter, he had kept the pistol cartridges and
magazines in a transparent plastic container and sealed the same with
the help of a doctor tape and app lied the seal of SPL CELL NDR 31
and marked the same as Mark A . He seized the same v ide seizure
memo (Ex PW4/B). He stated that he separated the magazines from
the pistols (thirty in number) , which were recovered from the said car
and prepared sketches of the pistols and magazines and marked the m
as SI No. 1 to 30 (Ex PW4/C1 to Ex PW4C/30) and thereafter, he had
kept the pistols in fifteen transparent plastic containers and marked the
container as SI No. 1 to 15 and sealed the same with the help of doctor
tape and applied the seal of SPL CELL NDR 31 . He seized the same
vide seizure memo (Ex PW4/D). He affirmed that he f illed the FSL
form s at the spot. He deposed that he had prepared the rukka (Ex
PW4/E) and handed over the same to HC Rajkumar for registratio n of
the FIR . He further deposed that he had handed over the seizure
memos, sketches, 16 containers and FSL form s along with the accused
to SI Amr ik Singh and he had prepared the site plan , at his instance.
He deposed that during the course of the investigation, the IO had
collected 5 empty cartridges of the bullets fired by the accused from
the ground and had kept the same in a transparent dabbi/ container
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sealed with the seal of SPL CELL ND R 21 and had marked the
pullandas as F1 . He seized the same vide seizure memo (Ex PW4/F).
He further deposed that the IO had also collected four empty
cartridges of the bullets fired by the police team and kept the same in a
transparent container sealed wi th the seal of SPL CELL NDR 21 and
marked the pullanda as F2 . He seized the same vide seizure memo (Ex
PW4/G). He stated that he had also handed over the bullet proof
jackets (BP1 and BP2) to the IO and ASI Aja ybir and HC Umesh
handed over the bullet proof jackets (BP3 and BP4 ) to the IO.
Thereafter, the IO prepared two pullandas of the jackets and sealed the
same with the seal of SPL CELL NDR 21 and marked the m as K1 and
K2. He took the same into possession vide seizure memo (Ex PW4/H).
He also stated that he handed over the red colour travelling bag
recovered from the Wagon -R vehicle to the IO and thereafter, the IO
sealed the same with the seal of SPL CELL NDR 21 . He seized the
same vide seizure memo (Ex PW4/I). He further deposed that the said
Wagon -R vehicle along with key was seized vide seizure memo (Ex
PW4/J) , under Section 102 of the Cr.PC by the IO as the same was
found stolen in a case bearing FIR no. 2645 registered with PS Crime
Branch, Delhi. The IO also arrested the accused and conducted his
personal search vide search memo (Ex PW4/K and PW4/L). He stated
that thereafter, they came back to the office of Special Cell and the IO
got the accused medically examined and dep osited the case property in
the malkhana . He put the accused behind bars and recorded his
statement. PW4 correctly identified the accused in open court. PW4
also identified the case property in question in open court.
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21. HC Raj Kumar was examined as PW10. A SI Ajaibir was
examined as PW7 and HC Umesh Kumar was examined as PW9 . The
examination of PW7, PW 9 and PW 10 is identically worded as the
examination in chief of PW4.
22. On 06.10.2016, the appellant’s statement was recorded under
Section 313 of the Cr.PC . He claimed that he has been falsely
implicated. He stated that n othing incriminating had been recovered
from him and he was not present at the spot as alleged. He claimed
that the police officials had implicated him at the instance of one
Lokender.
23. The Trial Court evaluated the evidence and concluded that the
appellant had fired at PW4, PW5, PW7 and PW9. One bullet each had
struck the respective bullet proof jackets worn by them . The Trial
Court accepted that there was evidence to show that the bullets f ound
from three of the bullet proof jackets were fired from the pistol
recovered from the accused. The Trial Court also accepted that the
appellant had fired five bullets and the same was established as five
cartridges were recovered from the spot . They were also found to have
been fired from the pistol recovered from the appellant.

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Submissions
24. At the outset, Mr. Akshay Bhandari, learned counsel appearing
for the appellant s tated that the appellant was limiting the challenge in
the present appeal to his conviction for committing an offence
punishable under Section 307 of the IPC. He submitted that the
appellant had already served more than five years of his prison
sentence and thus , had served the sentence awarded to him in respect
of all offences other than the offence punishable under Section 307 of
the IPC.
25. He contended that insofar as the offence punishable under
Section 307 of the IPC is concerned, there was a serious doubt as to
the case set up by the prosecution. He submitted that the appellant had
been convicted for the said offence on the premise that he had fired
bullets at the police officials . The said bullets had struck the bullet
proof vest sworn by them in their chest region . He submitted that the
very description of the event , as narrated by the concerned police
officials (PW4, PW7, PW 9 and PW10) , was highly improbabl e. He
stated that in all , the appellant is alleged to have fired five bullets. The
first had hit the police vehicle at the mudguard. The next four bullets
had allegedly struck the four concerned police officials constituting a
part of the r aiding team that had accosted the appellant with each
police official being struck by one bullet. He submitted that n one of
the police officials were hurt. They allegedly retaliated and each of
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them fired shots at the appellant but none of the shots struck the
appellant or the vehicle.
26. Next, he submitted that apart from the improbability of such an
event, the testimonies of PW4, PW7, PW9 and PW10 were not similar
but absolutely identical. This included the sentences, punctuation and
also the spelling errors. He stated that it was evident that the testimony
of a witness had been copied as testimon ies of other witnesses and the
only changes made were regarding their names.
27. Next, he submitted that all of the aforesaid police officials were
from the same police station and despite the seriousness of the event
as alleged, the crime team had not been called. Further, he submitted
that in addition to the testimonies of PW4, PW7, PW9 and PW10, th e
Trial Court had also based the decision on the FSL reports , which
indicated that the bullet recovered from the bullet proof vests worn by
the officers, were fired from the pistol used by the accused. However,
the said report was never tendered and therefore, could not have been
considered as evidence. He submitted that while such evidence may be
admissible under Section 293 of the Cr.PC, it nonetheless is required
to be tendered. He relied on the decision of the Division Bench of this
Court in Dharampal and Anr. v. State: Crl. A. 140/1999, decided on
28.07.2011 , in support of this contention.
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28. Lastly, he contended that the sentence awa rded to the appellant
was harsh and onerous. The impugned order on sentencing indicates
that the Trial Court had awarded a higher sentence on the ground that
the appellant was involved in other cases. However, the appellant had
not been convicted in any ca se and therefore, taking an adverse view
against him on the ground that he was being prosecuted was not
permissible. He stated that the Cr.PC only permits taking previous
convictions into account and not merely FIRs , which are in the nature
of mere allegation s.
29. He referred to the decision of the Division Bench of this Court
in State v. Bashir Ahmed Ponnu and Ors.: Crl. A. 1065/2014 ,
decided on 08.12.2014 , whereby the role attributed to the co -accused
Shahid Gafoor , was similar to the allegations agai nst the appellant.
Although the court had convicted him, it had sentenced him to five
years of rigorous imprisonment for an offence punishable under
Section 307 of the IPC. He submitted that in that case, the co -accused
was stated to be involved in terrori st activities. Therefore, in the event
the appellant’s conviction is sustained, the sentence awarded to him
ought to be reduced.
30. Mr. Amit Gupta, learned APP appearing for the State countered
the aforesaid submissions. He submitted that it was not open for the
appellant to now object to the manner in which the evidence of PW4,
PW7, PW9 and PW10 was recorded. He submitted that the Trial Court
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had co nsidered the ir testimon ies and had apparently copied the same
while making certain necessary changes regarding the names of the
witnesses and the officers involved. He submitted that this was well
within the knowledge of the counsel of the appellant but no objection
was raised in this regard. He also relied on Section 465 of the Cr.PC
and submitted that the appellant cannot challenge the judgment
convicting him in view of the manner in which the evidence was
recorded , unless he is able to establish that he has been prejudiced by
the same.
Reasons and Conclusion
31. As noticed above , the learned counsel appearing for the
appellant ha s restricted the present appeal to impugn the appellant’s
conviction for an offence punishable under Section 307 of the IPC,
only. Therefore, th is Court has confined its examination to the said
aspect alone .
32. It is relevant to note that the appellant had admitted certain
documents including the Ballistic Report CFSL -2015/F -978 (Ex.PX1);
CFSL -2015/F -979 (Ex.PX2) and CFSL -2015/F -981 (Ex.PX3) and the
same ha s been recorded by the Trial Court in its order dated
19.10.2015. However, it appears that thereafter, two other CFSL
reports were received: (i) Report bearing no. CFSL -2015/F -973 dated
15.10.2015 and (ii) Report bearing no. CFSL -2015/F -980 dated
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16.10.2015. The said reports were not marked and the appellant had
not admitted to the said documents. The additional statement of the
appellant under Section 313 of the Cr.PC was recorded on 22.11.2016
and all the CFSL reports were put to him. He responded by stating that
no firearms were recovered from his possession but the contents of the
reports were a matter of record.
33. The appellant’s conviction under Section 307 of the IPC is
premised on the basis that he had fired four shots at the police officials
– SI Krishan Kumar (PW4), HC Raj Kumar (PW10), ASI Ajaibir
(PW7) and HC Umesh Kumar (PW9). The bullets fired by him had
struck each of the said officials on the ir chest region of the bullet
proof vest , which they were wearing . However, non e of them had been
hurt, obviously, on account of them wearing the bullet proof vest.
Concededly, the appellant’s conviction is based primarily on the
testimon ies of the said four police officials. As pointed out by the
learned counsel for the appellant , the examination -in-chief of all the
said four police officials are identical. It is obvious that the Trial Court
has merely copied the examination -in-chief of one of the said
witnesses as the examination -in-chief of the other three witnesses as
well. The on ly change s made in their examination -in-chief are their
names and the consequential changes , where they mention the names
of other police officials.
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34. At this stage, it is relevant to refer to Section 276 of the Cr.PC,
which reads as under: –
“276. Record in trial before Court of
Session .—(1) In all trials before a Court of
Session, the evidence of each witness shall, as
his examination proceeds, be taken down in
writing either by the presiding Judge himself or
by his dictation in open Court, or unde r his
direction and superintendence, by an officer of
the Court appointed by him in this behalf.
(2) Such evidence shall ordinarily be taken
down in the form of a narrative, but the
presiding Judge may, in his discretion, take
down, or cause to be taken d own, any part of
such evidence in the form of question and
answer.
(3) The evidence so taken down shall be signed
by the presiding Judge and shall form part of
the record.”

35. As it is apparent from a plain reading of Section 276(1) of the
Cr.PC., the evid ence of each witness is required to be taken down “ as
his examination proceeds ”. Plainly, this has not been done in this case .
36. Whilst there is merit in the contention that the said procedure
could have been objected to at the time when the evidence was be ing
recorded and the fact that the learned counsel for the appellant had not
done so , would be a relevant factor in determining whether there has
been a failure of justice as a result thereof , however, this Court is of
the view that the issue of absolutely identical examinations -in chief
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not only highlights procedur al irregularity but also raise s a question to
the credibility of the testimon ies of the witnesses . The examination -in-
chief of the witnesses, which are identical both in their construct and
content , would in normal circumstances lead to a doubt that the
witnesses may have rehearsed their testimony in consultation with one
another.
37. Having stated the above, this Court is of the view that the
testimony of the said witnesses cannot be disregarde d or ignored only
for the reason that their examination -in-chief is identical. It would be
necessary to examine the evidence led as a whole before ascertaining
whether the prosecution has established its case beyond any
reasonable doubt. The fact that the testimon ies of certain police
officials are identically worded would certainly be a factor while
evaluating their evidence.
38. In the present case, a raiding team was constituted on the secret
information received by SI Krishan Kumar (PW4). The said raiding
team cons isted of ten officials (ASI Ajaibir, HC Raj Kumar, HC
Umesh, HC Rajiv, HC Sandeep, HC Surender, HC Narender and Ct.
Anshu apart from SI Krishan Kumar and Inspector Govind Sharma) .
39. According to the prosecution, the secret information was
entered as DD 13 (Ex PW4/N). PW4 testified that the secret informer
had informed him that the appellant would come in a Wagon -R
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vehicle ( bearing registration n o. 3444 ) “near Rajiv Nagar bus stand
under construction signature bridge behind Nanaksah Gurdwara ,
Delhi ”. However, the said entry (Ex PW4/N) merely mentions that as
per the secret informer, the appellant would come to Delhi; no specific
locality or place is mentioned in the entry.
40. PW4 testified that the said raiding team was under the overall
supervi sion of Inspector Govind Sharma , who had also accompanied
the team. He testified that t he raiding team had left in three vehicles : A
Government vehicle ( Gypsy ), a private car and one motor cycle. The
departure of the said raiding team had been entered as D D No.15 on
05.07.2015 (Ex.PW4/O). The said entry records the registration
number of the Government vehicle (Gypsy) as DL -1CJ-3486 , but the
particulars of the private vehicle and the motorcycle are not
mentioned.
41. As noted above, the testimonies of HC Raj Kumar (PW10), ASI
Ajaibir (PW7) and HC Umesh Kumar (PW9) are identical to that of SI
Krishan Kumar (PW4) . All four of the said officers travelled together
in the police gypsy. They were all armed and wore bullet pr oof vests.
42. It is relevant to note that none of the other members of the
raiding party , except Ct . Anshu Chaudhary, testified in the trial. Ct.
Anshu Chaudhary (660SB) was examined as PW8 . It is material to
note that he did not testify as to him being a pa rt of the raiding team or
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any of the events of 05.07.2015. He also did not affirm that he was a
part of the raiding team or was deployed to apprehend the appellant.
He did not mention that he was posted at the Special Cell on
05.07.2015. He merely stated t hat he was posted at the Special Cell on
09.07.2015 and on the instructions of the IO , he had collected 22
pullandas and taken them to CFSL, CBI, CGO Complex, Lodhi Road.
43. The fact that none of the members of the raiding team travelling
in the private vehicle or on the motorcycle testified to the events that
transpired on 05.07.2015 , does raise some doubts. These are
compounded by the fact that Ct. Anshu , who according to the
prosecution had travelled in the private vehicle, chose not to mention
anything about the events of 05.07.2015 . It is apparent that the
prosecution had for reasons known to them decided not to examine
any of the six police officials that had formed a part of the raiding
team regarding the events leading to the apprehension o f the appellant .
Accordingly, Ct. Anshu , who appeared as a witness, was also not
examined regarding the events of 05.07.2015 but only regarding
transporting the pullandas to FSL.
44. According to the prosecution, the raiding team had left the
office of the Sp ecial Cell along with the secret informer at about 06:00
pm. PW4 had testified that he had , on the way to the spot near Rajiv
Nagar Bus Stand, contacted a few public persons to be witness es to
the raid but none of them had come forward and had left the spot
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without disclosing the ir names and addresses. Thus, even though the
raiding team was deployed at a spot , which was not isolated, no public
persons were joined as independent witnesses to the proce edings. It is
relevant to note that one of the police officials of the raiding team (Ct.
Anshu) was in fact deputed right next to the bus stand [as is evident
from the site plan (Ex.PW5/A)] yet , none of the persons standing at
the bus stop , had joined the proce edings. The site plan also indicates
that Gurudwara Nanaks ah was located nearby . However, none of the
witnesses from the said Gurudwara were also included in the
proceedings. On the contrary, in the testimony, PW4 had stated that
the Gurudwara was at some distance away. However, that would not
prevent the officials from including witnesses from the said
Gurudwara, if they wanted to include independent witnesses.
45. Although the examination of the four police officials (PW4,
PW7, PW9 and PW10) are identical and all of the said witnesses had
affirmed that on the way , SI Krishan Kumar (PW4) had contacted a
few public person s to become witnesses, their statements in their
cross -examination are not similar. PW4 in his cross -examination had
stated that at the spot , he had contacted 5 -6 passersby to witness the
raid but none had come forward. However, it is material to note that in
his examination -in-chief, he had stated that he had contacted persons
on the way and not at the spot. ASI Ajaibir (PW7) , in his cross –
exami nation , further improved his testimony and s tated that the IO had
contacted the public persons to become witnesses to the raid thrice and
in addition , also contacted public persons at the spot but none had
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come forward. PW9 had stated in his cross -examinat ion that SI
Krishan Kumar had asked public persons to join the investigation at
the spot but they had refused. It is well settled that evidence of the
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 the court to
scrutinize the evidence of the police officers (See: Kalpnath Rai v.
State: AIR 1998 SC 201 ).
46. In the present case, the police officials had not joined any
independent witnesses , but the prosecution has also not examined the
police officials, who were present at the spot and were a part of the
raiding team. As noticed above, only four police officials who were
stated to be travelling in the Government vehicle ( Gypsy) were
examined regarding the events leading to the apprehension of the
appellant . Curiously, they are the only officials , who had been issued
bullet proof vests . The prosecution has also led evidence to establish
that they were issued arms and ammunition s; however, n o evidence
had been led to establish whether the other members of the raiding
team were also armed. PW4, PW7, PW9 and PW10 were questioned
on this aspect but they stated that they were not aware whether the
other members of the raiding team were carrying arms or not .
47. There is no explanation whatsoever as to why the other
members of the raiding team did not come to the spot from where the
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accused was apprehended , within a reasonable time . According to
PW4, the raiding team was led by Inspector Govind Sharma. He
remained inside the private car , which had not pursued the appellant.
According to the witnesses PW4, PW7, PW9 and PW10 have varying
accounts as to when the remaining members of the raiding team
arrived at the spot , wher e the encounter with the appellant had
allegedly taken place. According to PW4, the other members of the
raiding team arrived at the spot after about fifteen to twenty minutes;
according to PW5, the other members came to the spot after about five
to ten minutes; according to PW9 , Inspector Govind Sharma arrived at
the spot about ten minutes after they had apprehended the appellant.
PW10 stated that the staff arrived after ten to fifteen minutes. The
alleged spot where the encounter had taken place is stated to be about
250 to 300 yards away from where the raiding team was initially
deployed . The site plan also indicates that the spot where the
encounter took place was straight ahead from where the raiding team
was deployed. According to the prosecution, the entire team had left
the spot to apprehend the appellant. However, there is no explanation
as to why the other members of the raiding team did not immediately
proceed to the spot , even though it was at a visible distance from
where they were deployed. Even if the team had walked to the spot ,
they would have covered the distance in less than ten minutes.
48. As noticed above, the team leader (Inspector Govind Sharma)
was inside a private car , which was stationed right behind the official
gypsy. Yet only the gy psy pursued the appellant , when he attempted to
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flee and the other members of the raiding team took fifteen to twenty
minutes to cover a short distance of 250 to 300 yards/meters .
49. As observed earlier, Ct. Anshu was examined as a witness.
However, he did not even mention that he was posted with the Special
Cell on the date of the incident. It is, thus, clear that the prosecution
had specifically ensured that none of the other members of the raiding
team testify as to the incident even though they were relevant
witnesses. This coupled with the fact that the official witnesses of the
raiding team who did testify , did so in a manner where their
examination -in-chief is identical , does raise doubts as to the evidence
led by the prosecution.
50. It is also relevant to note tha t there are certain minor differences
in the statements of their cross -examination. One of the aspects on
which their statements made in the cross -examination are not
consistent is relate d to the in itial stage of the encounter. In his cross –
examination, PW4 stated that the accused had driven his vehicle on a
road, which was closed ahead due to construction and when he
reached the end point, the accused stopped the vehicle on a kaccha
road. It is sta ted that they challenged the accused and told him that
they were police officials and asked him not to flee. It is stated that
they had also told him that they had information that he had been
carrying illegal arms. Despite stating so, the accused came o ut of his
vehicle and suddenly fired on the members of the police team. He
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stated that they did not return the fire after the first shot was fired. He
volunteered that the first shot hit the police gypsy and they reversed
the vehicle for about five meters . He stated that he was the first to get
out of the police vehicle and just about that time, HC Raj Kumar also
got down. In the examination -in-chief, which is common between
PW4, PW7, PW9 and PW10, PW4 had testified that they had
intercepted the Wagon -R vehicle being driven by the accused after a
distance about 250 -300 yards. They had warned the accused that he
was surrounded by a police team and they had information that he was
carrying illegal arms and ammunition. He testified that on hearing
this, the accused came out of the car. He took out a pistol from his dub
and loaded the same. They again warned him not to use the weapon
but he did not hear them and fired a shot , which hit the mudguard of
the left wheel of the gypsy. PW4 stated that he and HC Raj Kumar had
alighted from the gypsy and took out their respective weapons and
moved towards the accused. It is relevant to note that in the
examination -in-chief, the said witnesses did not state that they had
reversed the gypsy on the accused shooting the sa me.
51. PW7 also did not state in his cross -examination that they had
reversed the gypsy vehicle after the accused had fired a shot at it.
PW10 also did not make any statement to the aforesaid effect.
52. The manner in which the encounter had allegedly un folde d must
be considered in the aforesaid backdrop. According to PW4, PW7,
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PW9 and PW10 – who were the only persons who were examined on
behalf of the prosecution to testify as to the incident – stated that the
appellant had fired five bullets. Apparently on being informed that he
was surrounded, the accused had got out of the vehicle, loaded his gun
and then fired a shot , which hit the mudguard over the left wheel of
the gypsy. PW4 and PW10 had alighted from the vehicle, but they did
not fire a ny retaliatory shots. The accused then fired his second shot
which hit PW4 in the area of his chest. However, he was unhurt
because he was wearing a bullet proof jacket. At that stage, PW4 also
returned fire in his defence. However, the said bullet neith er hit the
accused nor the Wagon -R vehicle. It is material to note that according
to PW4, the accused at that stage was hiding near the bonnet of the
Wagon -R vehicle . In other words, the vehicle ( Wagon -R) placed
between the police party and the accused was being used as a cover .
PW4 was barely six meters from the appellant but the bullet fired by
him neither struck the appellant nor the Wagon -R vehicle.
53. Thereafter, the appellant fired a third shot , which now hit PW10
in his chest region but he remained un hurt because he was wearing a
bullet proof vest. He then returned fire in his defence . This bullet
neither struck the appellant nor the Wagon R vehicle , which he was
using as a cover.
54. Thereafter, the accused also fired at the other two police
officials , who came forward to cover PW4 and PW10. They were also
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hit with one bullet each in their chest region and remained unhurt
because they were wearing bullet proof jackets. They also returned
fire but none of their bullets either hit the Wagon -R or the accused . In
fact, there is no evidence as to where the bullets fired by the raiding
team eventually struck. At that stage, the accused decided to change
the magazine of his weapon , even though there was a bullet in the
chamber and at that stage, the four police officials overpowered him.
According to PW4, all of this happened within two minutes , which is
before the other members of the raiding team fetched up.
55. It is material to note that PW4 in his cross -examination stated
that while they (PW4, PW7, PW9 and PW 10) were chasing the
accused, the two private vehicles were behind them in which other
staff members were present . He stated that they also did not fire as
they had discussed earlier not to do so. As to why the private vehicles
which w ere behind the gypsy, while it was pursuing the accused ,
could not cover a distance of 250 to 300 yards within a span of 15 -20
minutes, raise s a serious question as to the case set up by the
prosecution.
56. This Court is of the view that if the question of the testimon ies
of PW4, PW7, PW9 and PW10 as to the m being identical is viewed in
the overall context of the fact s that (i) no public witnesses were joined ,
although , there would have been a large number of them available
near the site ; (ii) that none of the other six members of the raiding
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team , who were in two vehicles and had been deployed to apprehend
the appellant , could not proceed to cover a distance of 250 to 300
yards within a span of 15 to 20 minutes ; (iii) that none of the other
members of the raidi ng team (except one) , who would be relevant
witnesses to the manner in which the events unfolded , were examined
by the prosecution and one member (Ct. Anshu) , who was examined ,
did not even mention that he was deployed at the police station on the
given date ; (iv) while four members of the team were armed and wore
protective gear, there is no evidence that the other six members of the
team were armed or not; and (v) the manner i n which the encounter is
alleged to have taken place – one bullet each in the chest region of
each of the four police officials wearing bullet proof vests and the
failure of the bullets fired by the police in defence (one by each of the
four officials) to find any target , does raise doubts as to the
prosecution’s case.
57. There is also merit in the contention that the CFSL Report s,
which were not tendered and exhibited in evidence (CFSL -2015/F -973
dated 15.10.2015 and Report bearing no. CFSL -2015/F -980 dated
16.10.2015 ) could not be relied upon. The Trial Court had taken note
of a report dated 16.10.2015 as evidence that the bullets recovered
from the bullet proof jackets were fired from the weapon that had been
recovered from the accused. However , that repor t was neither
tendered in evidence nor exhibited . Although the said report may be
admissible under Section 293 of the Cr.PC without the author
testifying to the contents thereof, however, the said report was
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required to be tendered and could not be taken note of without the
same being tendered and exhibited .
58. In Dharampal and Anr. v. State (supra ), the Division Bench of
this Court ha s observed as under:
“23. It is true that in view of Section 293 of the
Criminal Procedure Code, the report in question
need not have been proved by summoning the
author thereof, but that does not mean, that
during trial nobody had to tender the same in
evidence and have the same exhibited by
deposing that either he himself went to the FSL
Laboratory and collected the report in question
or deposing that during investigation he obtained
the report in question and that the same pertains
to the investigation conducted in the case which
was being tried. It must be deposed that the report
in question pertains to the cas e at hand.”

59. Concededly, the appellant has been convicted of an offence
punishable under Section 307 of the IPC principally on the basis of the
testimon ies of four members of the raiding team (PW4, PW7, PW9
and PW10) and the CFSL Report evidencing that the bullets recovered
from the bullet proof jackets were fired from the weapon allegedly
recovered from the appellant. In view of the above, this Court is
unable to accept that the prosecution has established its case that the
appellant had committed an offen ce punishable under Section 307 of
the IPC beyond any reasonable doubt.
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60. In view of the above conclusion, it is not necessary to examine
the contention that the Trial Court had erred in taking into account that
the appellant was involved in other cases wh ile awarding the sentence.
However, for the sake of completeness, this Court considers it
apposite to consider the same as well.
61. It is settled law that the presumption of innocence must be
maintained until the accused is found guilty. Th erefore , even tho ugh
the appellant may be involved in other cases, the same could not be
considered as a factor to award a harsher sentence because the
appellant had not been convicted in any of the cases at the material
time. This Court is of the view that the Trial Court erred in
considering that the appellant was also involved in other cases , while
considering the quantum of sentence.
62. In view of the above, the appellant is acquitted of committing
an offence punishable under Section 307 of the IPC. The impugned
judgment, to the limited extent it convicts the appellant for committing
an offence punishable under Section 307 of the IPC, is set aside.
63. The appeal is allowed to the aforesaid extent. The appellant be
released forthwith if he is not wanted in any other cas e.

VIBHU BAKHRU, J
JANUARY 27, 2021 /RK
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