Delhi District Court
State vs (1) Ravi @ Kala on 11 November, 2022
IN THE COURT OF MS. SHEFALI SHARMA: ADDL. SESSIONS JUDGE-02
( NORTH ):ROHINI DISTRICT COURTS : DELHI
In the matter of:-
(Sessions Case No. 48/2019)
FIR No. 476/2018
Police Station Swaroop Nagar
Charge sheet filed 307/120B/34 IPC &
Under Section 25/57/54/59 Arms Act
Charge framed Under 307/34 IPC & 25/27 Arms
Section Act
State V/s (1) Ravi @ Kala
S/o Sh. Gopal Singh
R/o H. No. 104, Village Hiranki, Delhi
(2) Nikhil @ Niki
S/o Sh. Iqbal
R/o H. No. 1118, Village Hiranki, Delhi
(3) Inderjeet @ Boxer
S/o Sh. Vinod
R/o Khasra No. 25/15, Zind Pur, Extension
Village Zindpur, Delhi
......Accused persons
Date of institution 28.01.2019
Arguments concluded on 31.10.2022
Judgment Pronounced on 11.11.2022
Decision Acquitted
JUDGMENT
BRIEF FACTS SC No. 48/2019, FIR No. 476/18, PS Swaroop Nagar Page No. 1 of 25 State Vs. Ravi @ Kala and Ors.
1. Events which set the prosecution machinery into motion is that on 03.11.2018 complainant Dharmbir Singh came back to his house after completing his work in the weekly market at Alipur. When he was getting ready for dinner, he heard some noise outside his house, upon which he thought that it might be the noise of some crackers but when he opened the gate to check, he saw that one Ravi son of Gopal, whom he knew earlier, was having pistol in his hand. His associates Inderjeet and Nikhil, who were also known to him earlier were accompanying him and upon seeking him, Ravi said "aaj inka kaam tamam kar detey hain". Thereafter, Ravi and Nikhil fired bullet towards him, which hit the door. Due to fear, he hid himself inside his house. On hearing the noise of bullet, the neighbhours started collecting on the spot, upon which all the three accused persons ran away on their motorcycles.
2. During investigation, the IO recorded statement of the witnesses and after completion of investigation, charge sheet for the offence under Section 307/120B/34 IPC & 25/57/54/59 Arms Act was filed in the court.
CHARGE
3. On committal of the case to the Court of Sessions, vide order dated 16.05.2019 charge u/S. 307/34 IPC against all the three accused persons namely Ravi @ Kala, Nikhil @ Niki and Inderjeet @ Boxed was found to be made out against the accused persons. Also, charge under Section 25/27 Arms Act had been framed against accused Ravi @ Kala and charge under Section 27 Arms Act had been framed against accused Nikhil @ Niki. The formal charge(s) as above were framed on the said date to which they pleaded not guilty and claimed trial.
SC No. 48/2019, FIR No. 476/18, PS Swaroop Nagar Page No. 2 of 25 State Vs. Ravi @ Kala and Ors.
PROSECUTION EVIDENCE
4. Thereafter, prosecution in support of its case have examined 12 witnesses in all.
PW1 is SI Naresh Kumar who deposed that in the intervening night of 03/04.11.2018 he was posted at PS Swaroop Nagar as Duty Officer and at about 12:01 AM, ASI Rajmal presented rukka, on the basis of which, he registered the present FIR Ex. PW1/A and made endorsement on rukka Ex. PW1/B. He also issued certificate u/s 65-B Evidence Act Ex. PW1/C. He deposed that after registration of FIR, he handed over original rukka and copy of FIR to SI Sandeep.
PW2 is SI Praveen Kumar who deposed that on 04.11.2018, he was posted at Mobile Crime Team, North-west District as Incharge and at about 01:40 am, a call was received from control room and accordingly, he alongwith his staff consisting of HC Sandeep (photographer) and ASI Ram Avtar (finger print proficient) reached at the spot i.e. D-715, near Manav Bhawan School, Ground Floor, Nathupura, Delhi, where they met SI Sandeep and other police officials. He deposed that he had inspected the said place of occurrence and on his instructions, photographer HC Sandeep took photographs from different angles. He deposed that he prepared crime team report Ex. PW2/A and handed over the same to IO.
PW3 is Dharambir whose deposition as under:
"On 03.11.2018, I was present at my house and taking dinner. I heard a sound of cracker outside my house. I came outside and saw that 8-10 boys were quarreling. Those boys asked me "Budhe tu kya dekh raha hai, chal andar". Due to fear, I came inside my house.
After some time, someone made a call to the police at 100 number. After some time, PCR van reached there. The empty cartridge was in found my house. One or two country made SC No. 48/2019, FIR No. 476/18, PS Swaroop Nagar Page No. 3 of 25 State Vs. Ravi @ Kala and Ors.
pistols were also found outside my house. Police obtained my signatures on paper. Police did not make any other inquiry. I narrated whatever happened with him me. No boys out of 8-10 boys are present in the court today.
Except this I do not know anything else in this case and except this I do not want to say anything else in this case. PW4 is Sh. Rohit Kumar, whose deposition as under:
"About 6-7 months ago, in the last year, I alongwith my father reached at our house from weekly market, where we used to sell spices.
At about 12:00-12:15 midnight, some boys were quarreling with each other, in front of our house. I opened the gate of my house, in order to see as to what had happened and my father followed me. On our asking, those boys told us to go inside. Those boys were quarreling with each other, therefore, we went inside our house.
I made a call to the police at 100 number. My father gave complaint to the police and told to the police that some boys were fighting in front of our house. Police obtained the signatures of my father on the papers. Thereafter, police left. No boys who were fighting in front of our house are present in the court today.
Except this I do not know anything else in this case and except this I do not want to say anything else in this case. He was also cross examined by the Ld. Additional PP for the State as he was resiling from his earlier statement.
PW5 is Sh. Kailash, whose deposition as under:
"I alongwith my family members were sitting in the room and watching TV. We heard a sound of goli/firing. I alongwith my family came outside the house and no one was there. However, the persons had run away on bike. My uncle Dharambir made a complaint to the police at 100 number. After some time, police reached there. I had not seen the persons, who had fired. Except this I do not know anything else in this case and except this I do not want to say anything else in this case. He was also cross examined by the Ld. Additional PP for the State as he was resiling from his earlier statement.
SC No. 48/2019, FIR No. 476/18, PS Swaroop Nagar Page No. 4 of 25 State Vs. Ravi @ Kala and Ors.
PW6 is Sh. Sanjay who deposed that on 09.11.2018, he had installed CCTV cameras outside his shop i.e. D-714, Nathupura, Delhi and on the same day in the night hours he received a call from police. Thereafter he reached at his shop where police officials were present and they had seen the CCTV footage stored in his DVR and had taken the footage of CCTV camera in pen drive. He deposed that he gave certificate under Section 65-B of Indian Evidence Act Ex. PW6/A. PW7 is ASI Rajmal who deposed that in the intervening night of 03/04.11.2018, he was on emergency duty with Ct. Mahesh and after receipt of DD No.2A Ex. PW7/A regarding 5-6 boys had fired at D-715, Nathu Pura, Main Bus Stand, he alongwith Ct. Mahesh reached at D-715, Manav Bhavana School where they found one empty cartridge, and one lead. At the spot, they met complainant Dharambir who was perplexed therefore unable to give statement. He inspected the scene. Crime team was called. Crime team inspected the scene of crime and photographer took the photographs of the spot from different angle. The empty cartridge and lead were put on a piece of paper and its sketch was prepared. The same were measured and sketch Ex. PW7/B. The empty cartridge and lead were seized vide seizure memo Ex. SC No. 48/2019, FIR No. 476/18, PS Swaroop Nagar Page No. 5 of 25 State Vs. Ravi @ Kala and Ors.
PW7/C. Complainant Dharambir gave his statement Ex. PW3/A and thereafter he made endorsement Ex. PW7/D. He prepared rukka which was presented to duty officer for registration of FIR. He deposed that as per direction of the SHO, the investigation was handed over to SI Sandeep.
Case property i.e. one cartridge case of 7.65 mm and mark Exhibit EC1. Ex. P1 and one deformed bullet/lead mark Exhibit EB1 Ex. P2. PW11 Ms. Prerna Lakra, Senior Scientific Assistant (Ballistic), FSL deposed that on 09.01.2019, three sealed parcels duly sealed were received in the office of FSL and she examined the same. She prepared the detailed report Ex. PW11/A. PW-8 is SI Sandeep who deposed that on 04.11.2018, he was posted at PS Swaroop Nagar and on that day, duty officer handed over him the copy of rukka. Thereafter he alongwith complainant Dharambir and Ct. Ravinder went to the scene of crime where he prepared site plan Ex. PW8/A at the instance of complainant. He recorded supplementary statement of the complainant. Thereafter, for the search of accused they reached at his house where accused was present. He deposed that he interrogated the accused and arrested him Ex. PW8/B and conducted his personal search Ex. PW8/C and made his disclosure statement Ex. PW8/D. SC No. 48/2019, FIR No. 476/18, PS Swaroop Nagar Page No. 6 of 25 State Vs. Ravi @ Kala and Ors.
He further deposed that on 05.11.2018 PM he alongwith Ct. Ravinder, Ct. Pawan, Ct. Mandeep with accused Ravi @ Kala with the search of weapon and at about 4.30pm they reached at the house of accused Ravi @ Kala as led by him. Accused led them to second floor of his house where there was bedroom of the left side. In the double bed he opened the same and produced two pistols which was used by him and co-accused at the time of alleged incident. The country made pistol was opened and its chamber one fired cartridge was found. The country made pistol and used cartridge were taken in possession. He made sketch of country made pistol Sl. No. 1 and fired cartridge Sl. No. 1A Ex. PW8/E. He also made sketch of second country made pistol Sl. No. 2 Ex. PW8/F. Both the country made pistols and fired cartridge were seized vide seizure memo Ex. PW8/G. He deposed that thereafter they searched for co-accused persons and went to village Mukhmel Pur Delhi and on the way to the Mukhmel Pur Road from Hiranki, accused Ravi @ Kala identified the said two persons who were standing near two motorcycles as Nikil @ Nikky and Inderjeet @ Boxer. Thereafter, they apprehended both the said boys. He deposed that he interrogated accused Inderjeet @ Boxer and arrested Ex. PW8/H and conducted his personal search Ex. PW8/J. The said accused made his disclosure statement Ex. PW8/K. SC No. 48/2019, FIR No. 476/18, PS Swaroop Nagar Page No. 7 of 25 State Vs. Ravi @ Kala and Ors.
He further deposed that he interrogated accused Nikhil @ Niki and arrested Ex. PW8/L and conducted his personal search Ex. PW8/M. The said accused made his disclosure statement Ex. PW8/N. Both the accused Inderjeet @ Boxer and Nikhil @ Niki produced motorcycle which was used by them in the commission of offence. Two motorcycles No. DL 4SBU 2249 and DL 4SBK 5421 were taken in possession vide seizure memo Ex. PW8/O. He deposed that on 09.11.2018, he alongwith other staff went to the scene of crime in order to find out if any CCTV footage available. They came to know that one camera installed out the chemist shop of Sanjay at D-714, Nathu Pura Delhi and on his request Sanjay reached at the shop and he had shown the DVR installed in his shop. They watched the CCTV footage of intervening night of 3/4.11.2018 and found three accused persons were present at the spot and the relevant time and two accused persons had fired towards the house of complainant. He had taken the said relevant CCTV footage in pen drive. The said pen drive was taken in possession vide seizure memo Ex. PW8/P. Sanjay also gave certificate under 65 B Evidence Act Ex. PW6/A. He deposed that on 07.12.2018, the exhibits were sent to FSL through Ct. Sunil who came back without depositing the same in the FSL vide RC No. 149/21. The exhibits were again deposited with MHCM. SC No. 48/2019, FIR No. 476/18, PS Swaroop Nagar Page No. 8 of 25 State Vs. Ravi @ Kala and Ors.
He further deposed that on 15.12.2018, the provision under section 120B IPC was attracted in the present case. He recorded statement of Kailash u/s 161 Cr.P.C. who is relative of complainant Dharambir.
He deposed that on 09.01.2019, the exhibits were sent to FSL. The pen drive containing the CCTV footage of relevant date were sent to FSL.
The photographs of the said motorcycles Ex. PW8/Q1 to Q4. The motorcycle bearing No. DL 4SB U 2249 Ex. P6 and No. DL 4SBK 5421 Ex. P7. The pen drive is Ex. P8.
PW9 is HC Ravinder who reiterated on the same lines as PW8. His testimony is not being reproduced herein for the sake of brevity.
PW10 is Sh. Ghanshyam Bansal who deposed that on 10.05.2019 he was working as Addl. DCP, Outer North District, Delhi and on perusal of the photocopy of case file of FIR No. 476/18, PS Swaroop Nagar was placed before him along with the report U/s 173 Cr.P.C, statement of prosecution witnesses and other documents relied upon in the chargesheet including the seizure memos and ballistic examination report. He deposed that he had perused the said documents and found that accused Ravi @ Kala S/o Sh. Gopal Singh was in possession of two improvised pistols 7.65 mm bore with one 7.65 mm empty cartridge, which he got recovered from his house and thereafter SC No. 48/2019, FIR No. 476/18, PS Swaroop Nagar Page No. 9 of 25 State Vs. Ravi @ Kala and Ors.
accused Ravi @ Kala committed an offence punishable U/s 25 of Arms Act and accordingly, he accorded sanction U/S 39 Arms Act against accused Ravi @ Kala in this case for his prosecution for offence punishable u/s 25 Arms Act. The sanction accorded by him Ex. PW10/A. PW11 is Ms. Prerna Lakra, Senior Scientific Assistant (Ballistic), FSL who deposed that on 09.01.2019, three sealed parcels duly sealed were received in the office of FSL and she examined the same. She prepared the detailed report Ex. PW11/A. On 09.01.2019 three sealed parcels were received at FSL and examined by PW11 Ms. Prerna Lakra of FSL who prepared the report Ex. PW11/A. The exhibit EB1 (deformed bullet) had been discharged through an improvised pistol of 7.65 mm bore marked Ex. F2. It was deposed by PW11 that one 7.65 mm cartridge out of the six cartridge was received for test firing which was returned to the forwarding authority in unsealed condition and the remittance had been sent for examination. The detailed report is Ex. PW11/A dated 15.04.2019. It was mentioned in the report at point No. 7 of the result that no opinion could be given whether the evidence cartridge cases marked Ex. EC1 and EC2 had been fired through the SC No. 48/2019, FIR No. 476/18, PS Swaroop Nagar Page No. 10 of 25 State Vs. Ravi @ Kala and Ors.
improvised pistol marked Ex. F1 and F2 or not due to insufficient data. Although it stated that individual characteristic of striation mark present on evidence bullet and on the test fired recovered bullets were found to be identical.
PW12 is Dr. Bharti Bhardwaj, Senior Scientific Officer (Physics), FSL, Delhi who deposed that on 13.03.2019, one sealed parcel duly sealed was received in the office of FSL through Ct. Sandeep of PS Swaroop Nagar. The said parcel was marked to her. She examined the same. She prepared the detailed report Ex. PW12/A. Accused persons admitted under Section 294 Cr.P.C. the 14 photographs of scene of crime taken by the crime team photographer HC Sandeep Ex. PX1 collectively.
STATEMENT OF ACCUSED UNDER SECTION 313 Cr.P.C
5. After closure of PE, the statements of the accused persons Ravi @ Kala, Nikhil @ Niki and Inderjeet @ Boxer were recorded u/s 313 Cr.P.C. on 28.11.2019, wherein they denied all the evidence put to them and stated that nothing have been recovered from their possession or at their instance. They stated that the police have falsely implicated them in this case.
All the three accused persons chose not to lead any defence evidence in their defence.
SC No. 48/2019, FIR No. 476/18, PS Swaroop Nagar Page No. 11 of 25 State Vs. Ravi @ Kala and Ors.
6. Thereafter, matter was fixed for final arguments.
ARGUMENTS
7. I have heard Sh. Harvinder Nar, Ld. Addl. PP for the State and Mr. Pradeep Rana for accused.
8. It was argued by Ld. Addl. PP that the allegations levelled against the accused are of serious nature.
It was further argued that all the police officials have clearly proved the chain and the manner of investigation and merely because the witnesses are police officials their testimony cannot be disbelived and for this reliance is placed on the case of Girija Prasad Vs. State of M.P. (2007) 7 SCC
625.
9. Per contra, Mr. Pradeep Rana, Ld. Counsel for the accused persons have argued that accused persons have been falsely implicated.
It is further argued that prime prosecution witnesses failed to identify the accused persons and even the forensic evidence is unreliable owing to various discrepancies and doubts. That the CCTV footage is fabricated and even otherwise the accused and the complainant are not seen in the same frame. That no public witness has been examined and the prosecution has failed to prove the case beyond reasonable doubt. Accordingly, all three accused persons deserve acquittal.
10. I have heard the arguments at length and perused the entire record.
FINDINGS SC No. 48/2019, FIR No. 476/18, PS Swaroop Nagar Page No. 12 of 25 State Vs. Ravi @ Kala and Ors.
11. The accused Ravi @ Kala, Nikhil @ Niki and Inderjeet @ Boxed had been charged for the commission of offence punishable under Section 307/34 IPC. Accused Ravi @ Kala had also in addition been charged for the commission of offence under Section 25/27 Arms Act and also accused Nikhil @ Niki had been charged for the commission of offence under Section 27 Arms Act.
12. The relevant Sections are reproduced as under:
SECTION 307 IPC "Whoever does any act with such intention or knowledge, and under any circumstances that, if he by that act caused death, would be guilty of murder, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and if hurt is caused to any person by such act, the offender shall be liable either to imprisonment for life, or to such punishment as is hereinbefore mentioned."
SECTION 34 IPC "When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone".
SECTION 25 ARMS ACT "....... Whoever acquires, has in his possession or carries any prohibited arms or prohibited ammunition in contravention of section 7 shall be punishable with imprisonment for a term which shall not be less than five years, but which may extend to ten years and shall also be liable to fine."
SECTION 27 ARMS ACT SC No. 48/2019, FIR No. 476/18, PS Swaroop Nagar Page No. 13 of 25 State Vs. Ravi @ Kala and Ors.
"(1) Whoever uses any arms or ammunition in contravention of section 5 shall be punishable with imprisonment for a term which shall not be less than three years but which may extend to seven years and shall also be liable to fine.
(2) Whoever uses any prohibited arms or prohibited ammunition in contravention of section 7 shall be punishable with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life and shall also be liable to fine (3) Whoever uses any prohibited arms or prohibited ammunition or does any act in contravention of section 7 and such use or act results in the death of any other person, 2[shall be punishable with imprisonment for life, or death and shall also be liable to fine."
13. It is a settled law of criminal jurisprudence that a person is believed to be innocent till the guilt is proved against him. This principle is called The Presumption of Innocence. In another words, the accused is entitled to take advantage of reasonable doubt in respect of his crime. The principle finds its genesis in the Declaration of Human Rights under Article 11 Section 1 incorporated by the United Nations in 1948. It is also mentioned in the European Convention for the Protection of Human Rights in Article 6 Section 2 and United Nations International Covenant on Civil and Political Rights under Article 14, Section 2.
Presumption of Innocence is a re-statement of the rule that in criminal matters the prosecution has the burden of proving guilt of the accused SC No. 48/2019, FIR No. 476/18, PS Swaroop Nagar Page No. 14 of 25 State Vs. Ravi @ Kala and Ors.
in order to be convicted of the crime of which he is charged.
In Chandrashekhar Vs. State of Himachal Pradesh decided on 06.07.2018 relying on judgment of Data Ram Singh Vs. State of UP passed by the Hon'ble Supreme Court on 06.02.2018, it was held that:
"the freedom of an individual is utmost important and cannot be curtailed specially when guilt if any, is yet to be proved. It is settled law that till such time guilt of a person is proved, he is deemed to be innocent........ A fundamental postulate of criminal juris prudence is a presumption of innocence meaning thereby that a person is believed to be innocent until found guilty..........
Thus, the inference which is culled out from the above is that it is for the prosecution to prove the guilt of the accused beyond reasonable doubt.
14. In this backdrop, I proceed to delve upon the evidence adduced on behalf of the prosecution.
MATERIAL/EYE WITNESS
15. The prosecution has heavily relied upon the testimony of PW3 Dharambir, PW4 Rohit Kumar and PW5 Kailash. However, the said witnesses have not supported the case of the prosecution.
PW3 Dharambir complainant had deposed as under:
"On 03.11.2018, I was present at my house and taking dinner. I heard a sound of cracker outside my house. I came outside and saw that 8-10 boys were quarreling. Those boys asked me "Budhe tu kya dekh raha hai, chal andar". Due to fear, I came SC No. 48/2019, FIR No. 476/18, PS Swaroop Nagar Page No. 15 of 25 State Vs. Ravi @ Kala and Ors.
inside my house.
After some time, someone made a call to the police at 100 number. After some time, PCR van reached there. The empty cartridge was in found my house. One or two country made pistols were also found outside my house. Police obtained my signatures on paper. Police did not make any other inquiry. I narrated whatever happened with him me. No boys out of 8-10 boys are present in the court today.
Except this I do not know anything else in this case and except this I do not want to say anything else in this case. Sh. Rohit Kumar had deposed as under:
"About 6-7 months ago, in the last year, I alongwith my father reached at our house from weekly market, where we used to sell spices.
At about 12:00-12:15 midnight, some boys were quarreling with each other, in front of our house. I opened the gate of my house, in order to see as to what had happened and my father followed me. On our asking, those boys told us to go inside. Those boys were quarreling with each other, therefore, we went inside our house.
I made a call to the police at 100 number. My father gave complaint to the police and told to the police that some boys were fighting in front of our house. Police obtained the signatures of my father on the papers. Thereafter, police left. No boys who were fighting in front of our house are present in the court today.
Except this I do not know anything else in this case and except this I do not want to say anything else in this case. PW5 Kailash had deposed as under:
"I alongwith my family members were sitting in the room and watching TV. We heard a sound of goli/firing. I alongwith my family came outside the house and no one was there. However, the persons had run away on bike. My uncle Dharambir made a complaint to the police at 100 number. After some time, police reached there. I had not seen the persons, who had fired. Except this I do not know anything else in this case and except this I do not want to say anything else in this case. Despite a lengthy cross examination by the Ld. Additional PP for the State, as they were resiling from their earlier statements, they completely SC No. 48/2019, FIR No. 476/18, PS Swaroop Nagar Page No. 16 of 25 State Vs. Ravi @ Kala and Ors.
denied the incident of accused aiming the pistol at complainant Dharambir and deposed that some boys were fighting in front of their house but none of them were present in the court and all the said witnesses failed to identify the accused persons.
CCTV FOOTAGE
16. PW6 Sanjay has categorically stated that on 09.11.2018, he had installed CCTV cameras outside his shop i.e. D-714, Nathupura, Delhi and on the same day in the night hours he received a call from police. Thereafter he reached at his shop where police officials were present and they had seen the CCTV footage stored in his DVR and had taken the footage of CCTV camera in pen drive. He deposed that he gave certificate under Section 65-B of Indian Evidence Act Ex. PW6/A. The said CCTV footage was played during testimony of PW8 SI Sandeep wherein it was shown that on 04.11.2018 at 00:00:59, two motorcycles with 7 boys, out of which two boys fired in a small gali, where scooters and motorcycles are parked on both sides. All the boys left at 00:02:11 except one boy, who rode on a motorcycle and left at 00:02:25. At 00:02:27, the public persons were seen coming out of their houses and going towards the same side of direction, where those boys ran away. Accused Nikhil @ Nikki and Ravi @ Kala were firing towards one side. The boy who lastly left the spot SC No. 48/2019, FIR No. 476/18, PS Swaroop Nagar Page No. 17 of 25 State Vs. Ravi @ Kala and Ors.
on a motorcycle was accused Inderjeet @ Boxer.
However, in his cross-examination the said PW8 stated that he had seen the CCTV footage at about 03:00 PM on 04.11.2018 for the first time whereas PW6, he had installed the CCTV cameras as deposed by him only on 09.11.2018. Again the witness PW8 had deposed that he had seen the CCTV footage on 09.11.2018. This creates a doubt in the version of PW8 itself.
Further, hard disk had not been admittedly obtained by IO from the owner and he admitted that he had not taken any legal action against the said person for not cooperating in the investigation.
He had further admitted that he never interrogated the other four persons or any other person who was seen in the said CCTV footage nor did he show the CCTV footage to the complainant or any other public persons who were residing nearby with regard to the identification of four persons.
Further, it was admitted in cross-examination of PW8 that he had not shown any co-police official or any public person by giving any demo that the said pen drive was empty and blank before recording the CCTV footage therein. He further admitted that he had not recorded the statement of any co- police official or any public person that pen drive was empty before putting the same in the DVR. IO deposed that the entire loading of pen drive with respect to the CCTV footage was done in the presence of PW6 Sanjay. However, PW6 SC No. 48/2019, FIR No. 476/18, PS Swaroop Nagar Page No. 18 of 25 State Vs. Ravi @ Kala and Ors.
Sanjay completely denied the said fact and rather stated that the police officials had asked him to stand outside the shop and they have not taken any CCTV footage in his presence. This is a material contradiction and the arguments raised by the Ld. Counsel for the accused that the said CCTV footage could have been fabricated does not seem to be unfounded. Even the original source i.e. the hard disk was never seized and sent to FSL for further investigation. It is further admitted that the number of motorcycles was not visible in the CCTV footage. The prosecution has failed to prove that complainant or accused persons were on the same frame at any interval of time. On the contrary the material prosecution witnesses have failed to identify the accused persons.
A grave doubt is raised in the authenticity in the CCTV footage owing to the date, time and manner of its procurement and the discussion above and specially in the wake of the main eyewitnesses and the PW6 not supporting the case of the prosecution in this regard. POSSESSION AND USE OF ALLEGED FIREARM
17. Also, charge under Section 25/27 Arms Act had been framed against accused Ravi @ Kala and charge under Section 27 Arms Act had been framed against accused Nikhil @ Niki. However, the recovery of the said fire arms from the accused is highly in doubt. But none of the accused persons who are present in the court were identified as accused. SC No. 48/2019, FIR No. 476/18, PS Swaroop Nagar Page No. 19 of 25 State Vs. Ravi @ Kala and Ors.
The main IO, PW8 SI Sandeep admitted in his cross examination that the he did not get the proceedings of recovery of pistol/pointing out proceeding videographed or photographed. He admitted that he did not lift the chance print/finger prints from the recovered weapon and no gloves were used at the time of recovery and he touched the alleged weapon with bare hand.
PW9 HC Ravinder admitted in his cross-examination that there were number of houses near the house of accused Ravi @ Kala and the mother of the accused Ravi @ Kala was also present at her house. He stated that he did not remember if IO requested the mother of accused Ravi @ Kala to join the investigation. He admitted that IO did not request the neighbours and independent public persons to join the investigation.
In the landmark judgment of State (NCT of Delhi) Vs. Sunil 2001 SCC, (Cri) 248, the Hon'ble Supreme Court held that "when discovery is made pursuant to any facts deposed by the accused, the discovery memo prepared by the IO is necessarily attested by the independent witnesses but if no witness is present, it is difficult to lay down as a proposition that the recovery must be tainted or that or unreliable. But in such a situation, the court has to consider the report of the IO on its own merits".
In Mani Vs. State of Tamilnadu decided on 08.01.2008, the Hon'ble Supreme Court, it has been held that:
SC No. 48/2019, FIR No. 476/18, PS Swaroop Nagar Page No. 20 of 25 State Vs. Ravi @ Kala and Ors.
"Discovery is a weak kind of evidence and cannot be wholly relied upon and conviction in such a serious matter cannot be based upon discovery".
In the case of Naveen kumar Verma Vs. State (Govt. of NCT of Delhi) decided by Hon'ble High Court of Delhi on 03.07.2013 relying on the landmark judgment of Mohd. Jabbar Vs. State decision 21.05.2010 Crl. A. 1022/18, it has been reiterated that:
"The courts have to be cautioned and to vigilant against the non practice of the police to plaint ordinary objects on the accused persons to prove access by the accused to the place where the crime was allegedly committed.
In Prabhu Vs. State AIR 1963, Supreme Court 1113, recovery of a blood stained shirt and a dhoti as also on an axe on which human blood was detected was held to be a weak evidence as was also held in the case of Narsinghbhai Prajapati Etc. Vs. Chatrasingh & Ors. AIR 1977 Supreme Court 1753, where recovery of a blood stained shirt and a dhoti and also a dharia (weapon of offence) were held to be a weak evidence.
In the present case, PW3 who is material witness relied by the prosecution itself had categorically deposed that an empty cartridge was found in front of his house and one or two country made pistol were also found outside the house would imply an open road easily accessible to people at large and in light of the aforesaid case law recovery of weapon become highly doubtful and the arguments raised by the Ld. Counsel that the same had been SC No. 48/2019, FIR No. 476/18, PS Swaroop Nagar Page No. 21 of 25 State Vs. Ravi @ Kala and Ors.
planted upon the accused cannot be ruled out. Further, the complainant and other material witnesses failed to identify accused persons or the fact that the accused persons allegedly aimed the pistol at the complainant and fired shots. FORENSIC/BALLISTIC EVIDENCE
18. Further, on PW11 09.01.2019 three sealed parcels were received at FSL and examined by PW11 Ms. Prerna Lakra of FSL who prepared the report Ex. PW11/A. The exhibit EB1 (deformed bullet) had been discharged through an improvised pistol of 7.65 mm bore marked Ex. F2. It was deposed by PW11 that one 7.65 mm cartridge out of the six cartridge was received for test firing which was returned to the forwarding authority in unsealed condition and the remittance had been sent for examination. The detailed report is Ex. PW11/A dated 15.04.2019. It was mentioned in the report at point No. 7 of the result that no opinion could be given whether the evidence cartridge cases marked Ex. EC1 and EC2 had been fired through the improvised pistol marked Ex. F1 and F2 or not due to insufficient data. Although it stated that individual characteristic of striation mark present on evidence bullet and on the test fired recovered bullets were found to be identical but as already discussed above the very recovery of the bullets is under cloud since PW3 categorically deposed that empty cartridge were found in front of his house and one or two country made pistols were also found SC No. 48/2019, FIR No. 476/18, PS Swaroop Nagar Page No. 22 of 25 State Vs. Ravi @ Kala and Ors.
outside of his house. The road is an easily accessible surrounding and thus the argument raised by the Ld. Counsel for the accused that the weapon of offence had been planted and the same were not used by the accused, cannot be ruled out specially in the wake of the testimony of material prosecution witnesses who have not supported the case of the prosecution and failed to identify the accused persons as already discussed before. PUBLIC PERSONS
19. Further, the alleged incident happened in a busy area of where there were number of persons residing. As per the testimony of PW8 even in the alleged CCTV footage highly relied by the prosecution number of public persons were seen coming out of their houses but admittedly no public person was made to join the investigation at any point of time nor at the time of recovery of pistol/alleged weapon of offence and the said fact admitted by the PW8 in his cross-examination. Even PW9 admitted that there are number of houses near the house of accused but IO did not request any of the neighbours or any independent public person to join the investigation.
In case law reported as "Anoop Joshi Vs. State" 1992(2) C.C. Cases 314(HC), High Court of Delhi had observed as under:-
"18. It is repeatedly laid down by this Court in such cases it should be shown by the police that sincere efforts have been made to join independent witnesses. In the present case, it is evidence that no such sincere efforts have been made, particularly when we find that shops were open and one or two shop-keepers could have been persuaded to join the raiding party to witness SC No. 48/2019, FIR No. 476/18, PS Swaroop Nagar Page No. 23 of 25 State Vs. Ravi @ Kala and Ors.
the recovery being made from the appellant. In case any of the shopkeepers had declined to join the raiding party, the police could have later on taken legal action against such shopkeepers because they could not have escaped the rigours of law while declining to perform their legal duty to assist the police in investigation as a citizen, which is an offence under the IPC".
In a case law reported as "Roop Chand Vs. The State of Haryana"
1999 (1) C.L.R. 69, the Punjab & Haryana High Court held as under:-
"3. I have heard the learned counsel for the parties and gone through the evidence with their help. The recovery of illicit liquor was effected from the possession of the petitioner during noon time and it is in the evidence of the prosecution witnesses that some witnesses form the public were available and they were asked to join the investigation. The explanation furnished by the prosecution is that the independent witnesses were asked to join the investigation but they refused to do so on the ground that their joining will result into enmity between them and the petitioner". "4. It is well settled principle of the law that the Investigating Agency should join independent witnesses at the time of recovery of contraband articles, if they are available and their failure to do so in such a situation casts a shadow of doubt on the prosecution case. In the present case also admittedly the independent witnesses were available at the time of recovery but they refused to associate themselves in the investigation. This explanation does not inspire confidence because the police officials who are the only witnesses examined in the case have not given the names and addresses of the persons contacted to join it is a very common excuse that the witnesses from the public refused to join the investigation. A police officer conducting investigation of a crime is entitled to ask anybody to join the investigation and on refusal by a person from the public the Investigating Officer can take action against such a person under the law. Had it been a fact that the witnesses from the public had refused to join the investigation, the Investigating Officer must have proceeded against them under the relevant provisions of law. The failure to do so by the police officer is suggestive of the fact that the explanation for non-joining the witnesses from the public is an after thought and is not worthy of credence. All these facts taken together make the prosecution case highly doubtful".
CONCLUSION
20. The material prosecution witnesses PW3 Dharambir, PW4 Rohit Kumar and PW5 Kailash have completely resiled from their testimony and SC No. 48/2019, FIR No. 476/18, PS Swaroop Nagar Page No. 24 of 25 State Vs. Ravi @ Kala and Ors.
failed to identify the accused persons or that such firing incident was witnessed by them. The CCTV footage is not alone a reliable piece of evidence to incriminate the accused as discussed above. The recovery of the weapon and the cartridges is under cloud as already discussed and thus in view of the aforesaid discussions and findings, it can be safely said that the prosecution has failed to prove its case beyond reasonable doubts and accordingly the accused Ravi @ Kala, Nikhil @ Niki and Inderjeet @ Boxer stand acquitted of the charges levelled against them.
21. File be consigned to record room after due compliance.
Dictated and announced in the open (Shefali Sharma) Court on 11.11.2022 Addl. Session Judge-02 (running in 25 pages) (North), Rohini Courts/Delhi SC No. 48/2019, FIR No. 476/18, PS Swaroop Nagar Page No. 25 of 25 State Vs. Ravi @ Kala and Ors.