Delhi District Court
State vs . on 12 December, 2007
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IN THE COURT OF SH. NARINDER KUMAR
ADDL. SESSIONS JUDGE FAST TRACK COURTS
ROHINI DELHI
SC No. 56/2 dated 22.01.2007
Date of Decision:12th of December, 2007
State
Versus
1. Akash
S/o Sh.Rajender Prasad
R/o H.No. A-334,
JJ Colony, Wazirpur,
Delhi.
2. Vipin
Son of Sh. Medh Giri,
R/o House No. L-284,
Wazirpur, Delhi.
3. Prakash Sharma
Son of Sh. Bhola Nath Shastri,
R/o BK-1/23-B,
Shalimar Bagh,
Delhi-88.
4. Rambir (since juvenile)
FIR No. 507/03
PS - Paschim Vihar
U/s. 394, 397, 411 read with Section 34 IPC &
120 B IPC
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SC No. 56/2 dated 22.01.2007
State Vs.
Akash
S/o Sh.Rajender Prasad
R/o H.No. A-334,
JJ Colony, Wazirpur,
Delhi.
FIR No. 540/03
PS - Paschim Vihar
U/s. 25 of the Arms ACt
SC No. 53/2 dated 22.01.2007
State Vs.
Vipin
Son of Sh. Medh Giri,
R/o House No. L-284,
Wazirpur, Delhi.
FIR No. 541/03
PS - Paschim Vihar
U/s. 25 of the Arms Act.
JUDGMENT
Vide this common judgment, I shall dispose of case FIR No. 507/03 titled as State V. Akash and others; case FIR No. 540/03 titled as State V. Akash and case FIR No. -:3:- 541/03 titled as State V. Vipin, all of P.S. Paschim Vihar. First the Facts On 09/09/2003, at about 07:20 p.m., at A-1/10 Rajat Communication, situated at Rohtak Road, Paschim Vihar, Delhi, robbery of mobile phones, gold ring, cash worth Rs.12,000/-, took place. Akash, Prakash Sharma and Vipin accused have been facing trial for an offence u/s 120-B IPC on the allegations that all of them and their companion Rambir (juvenile) entered into a criminal conspiracy to commit robbery at the aforesaid shop. They are also alleged to have committed the aforesaid robbery, in pursuance of the conspiracy, and as such they have also been facing trial for offences u/s 394 read with section 120-B IPC. At the same time, charge for an offence u/s 397 IPC was also framed against Akash and Vipin accused.
Some of the stolen articles having been recovered from Akash, Vipin and Prakash Sharma accused, all of them have been facing trial for an offence u/s 411 IPC.
Case of prosecution is that Vikas Tiwari, complainant, deals in mobile phones at A-1/10, Paschim Vihar, under the name & style Rajat Communication. On 09.09.2003 at about 7/7.15 p.m., while he was present at his -:4:- shop, 3/4 boys came and asked him to show them costly mobile phones. One of them, then took out a country made pistol and placed it against the head of complainant whereas the other boy hit on his head with the butt of country made pistol. It was thereafter that the aforesaid 3/4 boys robbed one gold chain, two gold rings (one of diamond), mobile phones of Nokia 6385 and 3315, Samsung R-220, CDMA- EuroTel, one mobile phone make LG, C-25 Siemens, Nokia 8250 and Nokia 2100.
Case of prosecution is that Nokia mobile phone Model No. 6385, mobile phone Make E-Urotel, Mobile phone Make 6385 bearing ESN No. 481B707C-56012123 were sold by the company of Vibhu Agarwal to M/s Rajat Communication i.e. of the complainant.
Case is registered Information about robbery reached PS Paschim Vihar where DD No. 46B was recorded. ASI Gyan Singh and Constable Sunil collected copy of the DD entry and reached A-1/10, Paschim Vihar, Rohtak Road, Delhi, where complainant met them and made statement. On this statement, present case was got registered. -:5:- Investigation Starts ASI Gyan Singh prepared rough site plan of the place of occurrence. SI Naresh Dagar, working as In-charge Crime Team (West District), alongwith members of the crime team reached the spot, inspected it and lifted chance prints from there. In this regard, he prepared report. Arrest of accused and recovery of stolen property On 21.09.2003, ASI Gyan Singh was present at the Outer Ring Road, opposite district park. At that time, SI Randhir Singh, ASI Balwan Singh, ASI Pritam Raj and others were checking the traffic coming from the side of Mangolpuri. One blue colour van came from the side of Mangolpuri. The van was bearing words "Indian". ASI Gyan Singh directed the driver of the van to stop it. The driver suddenly stopped the van, alighted from it and started running away. Two more boys alighted from the van. Case of prosecution is that the accused Akash and Vipin accused and Rambir (juvenile) were the boys who alighted from the van. All of them were apprehended and searched by the members of the aforesaid raiding party.
Rambir ( sent to Juvenile Justice Board), was -:6:- found in possession of one loaded country made pistol. In this regard, seizure memo and sketch of the pistol and cartridge were prepared.
Akash accused was also found in possession of a country made pistol and one empty cartridge and one live cartridge.
Vipin accused was also found in possession of one loaded country made pistol.
Separate cases U/s. 25 of the Arms Act were got registered vide FIR No. 540/03 and 541/03 against Akash and Vipin accused in respect of the recoveries of fire-arms and ammunition.
Accused Akash, Vipin and their companion Rambir (since juvenile) made disclosure statements. Maruti van, which was bearing registration No. DL-2C-A-4050, was seized.
In pursuance of disclosure statement, Akash accused led the police party to the second floor of H.No. K- 334, J.J. Colony, Wazirpur, Delhi, and got recovered one mobile phone make Eurotel from a bed, which was converted into a parcel and sealed with the seal bearing letters "GS".
Vipin accused got recovered one gold chain and -:7:- one mobile phone make Samsung from the first floor of H.No. K-562, J.J. Colony, Wazirpur, Delhi, which were turned into parcels, sealed with the aforesaid seal and then seized.
It was thereafter that Prakash accused was apprehended from his house No. BK1/23B, Shalimar Bagh, Delhi, at the pointing out of Akash and his companions Vipin and Rambir. In this respect, arrest memo and personal search memo were prepared. Prakash accused also made disclosure statement and in pursuance thereof he got recovered one mobile phone make Nokia, one mobile phone make Samsung and a gold ring, which were turned into parcel, sealed with the seal of "GS" and then seized.
Further it is case of prosecution that at the pointing out of Rambir, from his house E1/184, Yadav Nagar, New Delhi, two mobile Phones make Nokia and Reliance and one diamond ring were recovered, which were turned into parcels, sealed with the aforesaid seal and then seized ASI Gyan Singh deposited four sealed parcels and the aforesaid Maruti van with MHC(M) Phool Kanwar.
During investigation of the case, ASI Pritam Raj prepared site plan of the place of occurrence and recorded statements of witnesses.
-:8:-Stolen property is identified by the complainant On 24/09/2003, application was filed by the police for test identification proceedings of case property. It was on 26/09/2003 that test identification proceedings in respect of case property were conducted. During test identification proceedings, diamond ring , gold ring and Gold chain were identified by the complainant Vikas Tiwari, These items were released on superdari in favour of the complainant. Six mobile phones were also released to him on superdari.
The above referred to Maruti Van was released on superdari under orders of the court on 10/03/2004. Refusal by accused to participate in Test Identification Proceedings.
An application for holding of test identification parade of accused persons was moved by the police but they refused to participate in the test identification parade.
Sh. R. S. Yadav, Addl. DCP, West District, accorded sanction for prosecution of Akash and Vipin accused for an offence u/s 25 of the Arms Act.
On completion of investigation, three challans -:9:- were put in Court.
Charge Prima facie case having been made out vide order dated 12/05/2004. Charge for offences u/s 120-B, 394 read with section 120-B IPC was framed against all the three accused; charge for offences u/s 397 and 411 IPC and 25 of Arms Act was framed against Akash and Vipin accused, whereas charge for an offence u/s 411 IPC was framed against Prakash Sharma accused. Since the accused pleaded not guilty and claimed trial, prosecution was called upon to lead evidence.
It may be mentioned here that vide order dated 02/08/2004 passed by learned Predecessor, all the three cases were consolidated and evidence to be recorded in case FIR No. 507/2003 was also ordered to be placed in the two connected case i.e. 540/2003 and 541/2003. Prosecution Evidence Complainant has stepped into the witness box as PW4.
PW6 SI Naresh Dagar, Incharge of the Crime Team, has been examined to prove report Ex.PW6/A, regarding the visit of the crime team and lifting of chance -:10:- prints from the spot.
PW7 Sh. Vibhu Aggarwal, has been examined to prove sale of mobile phones by his company namely M/s Skycell Tele Services Private Limited to the company of the complainant, vide invoices dated 20/12/2002 and 05/06/2003.
PW2 Head Ct. Sushil Kumar has been examined to prove FIR Ex.PW2/A i.e. of the main case FIR No. 507/2003, on the basis of ruqqa received from ASI Gyan Singh through Constable Ramesh Chand (PW3).
PW12 Head Ct. Madan Singh has proved recording of FIR No. 540/2003 (u/s 25 of the Arms Act against Akash accused) which is Ex.PW12/A and FIR No.541/2003 (u/s 25 of the Arms Act against Vipin accused) which is Ex.PW12/B. PW13 Head Ct. Phool Kanwar is the concerned MHC (M) with whom the case property was deposited and who sent the sealed parcels to FSL for analysis from time to time.
PW12 (actually PW14) Sh. M.K. Nagpal, learned Metropolitan Magistrate has been examined to prove holding of test identification proceedings in respect of case property on 26/09/2003.
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PW15 Sh. Sudesh Kumar, Copying Agency Clerk, Juvenile Justice Board, has proved seizure memo Ex.PW15/A in respect of country made pistol and live cartridge recovered from Rambir Singh (juvenile) and sketch Ex.PW15/B in respect of pistol and the cartridge, as the original documents of both these documents were available in the challan separately presented against Rambir (juvenile).
PW17 Sh. R. S. Yadav, the then Additional DCP (West District) has been examined to prove sanction Ex.PW17/A accorded for prosecution of Akash accused for an offence u/s 25 of Arms Act and sanction Ex.PW17/B for prosecution of Vipin accused for an offence u/s 25 of Arms Act.
PW18 Constable K. N. Goud, has deposed about deposit of sealed parcels at FSL Malviya Nagar on 08/11/2003 and another sealed parcel on 11/11/2003, at FSL. Report Ex.PX and Ex.PY received from FSL have also been tendered into evidence.
PW1 Constable Bijender, PW3 Constable Ramesh Chand, PW8 Constable Siya Ram, PW9 Ct. Ram Krishan, PW10 ASI Balwan Singh, PW11 ASI Gyan Singh, PW16 ASI Pritam Raj have been examined to depose -:12:- investigation part of prosecution story. Defence Plea When examined u/s 313 Cr.P.C., all the three accused persons denied all the incriminating circumstances appearing in evidence against them and claimed false implication.
In defence, Akash accused examined his mother Smt. Laxmi Devi as DW2, Prakash accused has examined his father Sh. Bhola Nath Shastri as DW1 and Vipin accused has examined his elder brother Sh. Bhupender Giri as DW3.
Arguments heard. File perused.
Discussion Occurrence is alleged to have taken place on 09.09.2003 at A-1/10, Paschim Vihar, at the shop of PW4 Vikas Tiwari, complainant, who used to deal in the business of mobile phones. According to PW4-complainant, at about 7 p.m., when he was present at his shop, 3/4 boys came to his shop and asked him to show costly mobile phones. One of them then took out a country made pistol and the other placed a country made pistol against his head, whereas their third companion hit him on the head with the butt of a country made pistol. The witness then narrated the items removed -:13:- from his shop by the 3/4 boys. As regards identity of offenders, the witness showed his helplessness stating that he could not recollect their identity because of lapse of considerable time. He went on to state that the accused persons, present in court, were not the persons involved in the commission of the crime.
It has been rightly pointed out by learned defence counsel that even in DD No. 46B, recorded at Police Station- Paschim Vihar, no identifying mark or particular of the culprits/robbers was given when police was informed about the occurrence at about 7.55 p.m. PW4 then deposed about making of complaint Ex. PW4/A before the police. It is also in his statement that he identified some of the articles robbed from his shop and recovered by the police. In this regard, the witness went on to state that he had identified one diamond ring, one gold ring and a gold chain before Metropolitan Magistrate, and obtained them on superdari. These were brought by him during trial and then exhibited as Ex P1 to Ex. P3.
It is also in his statement that he got released on superdari six mobile phones. The witness brought the six mobile phones which were exhibited as Ex. P4 to Ex. P9. -:14:- The witness was then put leading questions by learned Additional Public Prosecutor after seeking permission from the court on the ground that he had resiled on the point of identity of the accused persons. It was then that the witness admitted to have stated to the police that 3/4 boys, who were involved in the commission of crime, used to visit his shop but he denied to have stated that they were the accused who were involved in the incident or that they used to visit his shop earlier. He denied to have come to court premises on 10.06.2003 or to have identified the accused as the persons involved in the robbery or that their names were revealed as Rambir, Vipin and Akash. He denied to have stated before the police that Akash had placed a country made pistol against his head or that Vipin assaulted him with the butt of a country made pistol. The witness even denied to have stated before the police that Rambir had threatened that on that day, they would remove everything from his shop. It was suggested to the witness by learned Additional Public Prosecutor that he was not identifying the accused, the matter having been compromised, but, the witness denied this suggestion. He also denied that he had been won over by the accused persons.
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From the above statement of PW4-complainant, it would transpire that he deposed in court about commission of robbery at his shop on 07.09.2003 at about 7.15 p.m. by 3/4 boys, and also specified some of the items taken away from his shop, but did not raise any accusing finger against any of the accused persons, present in court. Therefore, complainant has not supported the case of prosecution on the point of identity of the accused persons as the culprits involved in commission of the robbery.
Developing of chance prints from the spot:
Case of prosecution is that on the same day, PW6 SI Naresh Dagar, In-charge of Crime Team, West District, came to the spot and lifted chance prints. In this regard, PW6 proved his report Ex. PW6/A. A perusal of report Ex. PW6/A would reveal that total five chance prints were developed. Chance print Q1 was developed from the showcase-glass whereas the four other chance prints Q2 to Q5 were developed from various packs of mobile phones. Statement of PW6 has gone unchallenged. So, it stands established that after the occurrence, five chance prints were developed from the spot.
Then, it is to be seen whether any of the -:16:- chance prints tallied with any of the finger prints of the accused persons or not?
Learned defence counsel contended that there is nothing on record to suggest that any finger print of any of the accused person was obtained or sent for comparison with the chance prints, as find mentioned in report Ex. PW6/A. It is true that as per report Ex. PW6/A, chance prints were developed at the spot on 9.09.2003 by the Crime Team headed by PW6 SI Naresh Dagar. It was for the investigating officer to take steps for comparison of finger prints of the accused persons and their companion Rambir in the laboratory. However, there is nothing on record to suggest that the investigating officer took any such step. In absence of any specimen finger prints of any of the accused persons or that of Rambir, and their comparison with the chance prints stated to have been developed from the spot, it cannot be said that any of the accused was involved in commission of the robbery at the shop of the complainant on 09.09.2003.
Arrest of three persons,namely, Akash, Vipin and Rambir on 21.09.2003:
Case of prosecution is that it was on 21.09.2003 -:17:- that PW11 ASI Gyan Singh and other staff was present on the Outer Ring road opposite District Park, in the area of Police Station Paschim Vihar, in connection with checking of traffic coming from the side of Mangolpuri, when Akash, Vipin and Rambir (Juvenile) were apprehended. In this regard, prosecution has examined PW11 ASI Gyan Singh, PW1 Constable Bijender, PW5 Constable Sunder Singh, PW8 Constable Siya Ram, PW9 Constable Ram Kishan, PW10 ASI Balwan Singh and PW16 ASI Pritam Dass. These PWs have deposed about arrival of a van bearing words "Indian" on the front mirror and that on signal, its driver stopped the van but started running away, followed by two others, who also got down from the same van, and that they were Rambir Singh (Juvenile) and his companions Akash and Vipin (accused).
According to PW11, one country made pistol loaded with one live cartridge was recovered from Akash; that one country made pistol loaded with one live cartridge was recovered from Vipin accused and that in this respect, separate cases U/s. 25 of the Arms Act were registered against each of them. All the other Pws, namely, PW1 Constable Bijender, PW5 Constable Sunder Singh, PW8 -:18:- Constable Siya Ram, PW9 Constable Ram Kishan, PW10 ASI Balwan Singh and PW16 ASI Pritam Dass, have also deposed about the recoveries from Akash and Vipin accused on the aforesaid date, time and place, after they were apprehended.
Prosecution has relied on documentary evidence i.e. the arrest memos Ex. PW1/F in respect of Vipin; Ex. PW1/G in respect of Akash and Ex. PW11/F in respect of Rambir. They have also deposed about preparation of their personal search memos and further that all of them made disclosure statements which are Ex. PW11/C to Ex. PW11/E. They have also deposed about seizure of Maruti Van bearing registration No. DL-2CA-4050 vide memo Ex. PW1/A. As per prosecution version, narrated by PW11 ASI Gyan Singh, in pursuance of his disclosure statement, Vipin accused led to his house K-562, J.J. Colony, Wazirpur, Delhi, and got recovered one gold chain and a mobile phone make Samsung which were turned into a parcel, sealed and then seized vide memo Ex.PW1/B. PW11 then deposed about recovery of one mobile phone make Eurotel from the bed lying at H.No. K-334 in J.J. Colony, Wazirpur, Delhi, at the instance of Akash accused, -:19:- and about its seizure vide recovery memo Ex. PW 5/B after the same was turned into a parcel.
PW11 then deposed that Prakash accused was apprehended from his house B1/23B, Shalimar Bagh, Delhi, at the pointing out of Akash, Vipin and Rambir, and that Prakash accused got recovered one mobile phone make Nokia, one mobile phone make Samsung and one gold ring from his house. He further deposed that these items were then turned into a sealed parcel and seized vide memo Ex. PW1/C. Arrest memo and personal search memo prepared in respect of Prakash accused have also been proved by the witness.
As regards recovery from the house of Rambir, PW11 ASI Gyan Singh deposed that he led to his house E- 184, Yadav Nagar, New Delhi, and got recovered two mobile phones i.e. one make Nokia and other of Reliance, and one diamond ring. He further deposed about turning of these items into sealed parcels and their seizure vide memo Ex. PW11/G after the same were sealed.
The above named PWs i.e. PW1 Constable Bijender, PW5 Constable Sunder Singh, PW8 Constable Siya Ram, PW9 Constable Ram Kishan, PW10 ASI Balwan Singh -:20:- and PW16 ASI Pritam Dass, have also deposed about recoveries at the instance of Vipin, Akash, Rambir and Prakash accused.
Learned Additional Public Prosecutor, while referring to the statements of police officials, contended that arrest of the accused persons,namely, Akash, Vipin and their companion Rambir from Outer Ring Road, on 21.09.2003, and recoveries of the firearm and ammunition, stand fully established.
On the other hand, learned defence counsel contended, while referring to the statements of PW5 Constable Sunder Singh and PW11 ASI Gyan Singh, that there are material contradictions therein regarding the manner in which the accused persons were arrested and also regarding the recoveries made from them, and in view of these contradictions, no reliance should be placed on their statements, particularly when no witness from the public was associated despite ample opportunity.
PW11 ASI Gyan Singh, investigating officer of the case, has deposed that he alongwith other police officials left Police Station Paschim Vihar at about 3 p.m. on 21.09.2003 and that at about 3.40 p.m., the accused persons came -:21:- towards District Park, although checking was started at 3.25 p.m. Further according to him, before the arrest of the accused persons, only 2/3 vehicles i.e. Maruti Vans were checked. On the other hand, PW16 ASI Pritam Raj stated in his cross examination that about 50/60 vehicles passed through the place of picket prior to the arrest of the accused persons. He did not depose that cars and motorcycles were also stopped for checking. This shows that both the PWs are in contradiction with each other regarding the vehicles and their particulars which were checked at the place of picket. Whether secret information led to holding of picket?
According to PW11 ASI Gyan Singh, at about 3 p.m., he alongwith other police officials left in search of the accused persons on the basis of specific information. Had the police left the police station on the basis of any specific information, PW11 must have stated so even in his chief examination. But in chief examination, he simply deposed that on 21.09.2003 he was conducting checking of traffic on the Outer Ring Road coming from the side of Mangolpuri. No DD entry has been placed on record to show that the police party left the police station after receiving specific information about movement of the accused persons. Absence of any -:22:- such DD entry creates doubt about departure of the police party from the police station in connection with apprehension of the accused persons.
It is in the statement of PW16 ASI Pritam Raj, another member of the police party, that ASI Gyan Singh received information that some persons, involved in robbery, were going towards Vikaspuri from the side of Outer Ring Road, Mangolpuri, and that secret informer was available with them. He further stated that it was at the pointing out of the secret informer that they gave a signal to vehicle No. DL-2CA- 4050 to stop it.
As per prosecution version, the police party was headed by ASI Gyan Singh and he was having the secret information. PW9 Constable Ram Kishan has deposed that secret information was received by ASI Pritam Raj. According to him, the secret information was not in respect of case FIR No. 507/03 i.e the present case, but it was in respect of case FIR No. 500/03.
On the other hand, a perusal of statement of PW11 ASI Gyan Singh would reveal that he nowhere deposed that any secret informer was accompanying them at the time the picket was held or that it was at the pointing out -:23:- of the secret informer that the vehicle was signaled to stop. This goes to show that statements of both these PWs are not in consonance with each other on the aforesaid aspect of giving signal to a particular vehicle at the pointing out of a secret informer or about presence of the secret informer in the party.
As to the identity of the vehicle which was signalled to stop, it may be mentioned here that PW11 ASI Gyan Singh nowhere specified in his statement as to what was the number of that vehicle. According to him, it was blue colour van having words "Indian" written on the front window screen.
At this stage, when we advert to the statement of PW16 ASI Pritam Raj, according to him, it was not a van, but a blue colour car which came from the side of Mangolpuri, with three occupants in it. PW1 Constable Bijender, another member of the party, deposed about arrival of a Maruti Van, but did not state in court the registration number of that van. PW5 Constable Sunder Singh, in his chief examination, deposed about arrival of a Maruti Van, but in his cross examination, recorded on the same day, he deposed that it -:24:- was a Maruti Car.
PW8 Constable Siya Ram, another member of the party, deposed about arrival of a Maruti Van, but did not state about its registration number.
PW10 ASI Balwan Singh did not state that the vehicle which was signaled to stop, was a car. He also did not state about registration number of the car. In his cross examination, he admitted to have not stated in his statement made before the investigating officer the number of the vehicle which was signalled to stop.
In view of the above contradictory statements of the witnesses, it becomes doubtful, if all these witnesses were actually present on the given date, time and place i.e. on 21.09.2003 at about 3.40 p.m., at Outer Ring Road, Opposite District Park, Paschim Vihar. Had they been present on the given date, time and place, this material contradiction would not have appeared in their statements.
Recovery of Firearm & Ammunition from Akash As per prosecution version, Akash accused was found in possession of a country made pistol and two cartridges, out of which one was empty. In this regard, reference may be made to recovery memo Ex. PW5/B -:25:- available in case FIR No. 540/03. However, statements made by the PWs, during trial, are not in consonance with this version of the prosecution. Recovery memo Ex.PW5/B bears attestation of Constable Sunder Singh. It is purported to have been prepared by ASI Balwan Singh. Constable Sunder Singh has appeared in court as PW5 whereas ASI Balwan Singh has appeared in court as PW10.
According to PW5, on personal search of Akash accused, he was found in possession of a loaded country made pistol and one live cartridge. PW5 did not state that the country made pistol was loaded with an empty cartridge. In the next breath, he specified that the investigating officer prepared sketch of the country made pistol and two live cartridges. Thus, according to PW5, the country made pistol was found loaded with a live cartridge. PW5 nowhere specified as to from where the country made pistol and the cartridges were recovered. Had PW5 Constable Sunder Singh been present on the given date, time and place, this material contradiction would not have appeared in his statement. In that situation, he must have deposed that the firearm and ammunition was recovered from the right side pocket of shirt. It is pertinent to mention here that even in the -:26:- recovery memo Ex. PW5/B, it does not find mentioned that Akash accused was carrying the firearm and ammunition in the pocket of his shirt. Even PW10 ASI Balwan Singh deposed about recovery of one live cartridge from the chamber of the country made pistol and one live cartridge from the right side pocket of the pant of Akash accused. This version narrated by PW10 ASI Balwan Singh is not in consonance with the version available in recovery memo Ex.PW5/B, since as per its contents, one of the cartridges was empty. It is pertinent to mention that even in the recovery memo, it does not find mentioned as to from where the live cartridge was recovered.
Case of prosecution is that the country made pistol and the cartridges were turned into a parcel and sealed with the seal bearing impression "GS" and after use, the seal was handed over to Constable Sunder Singh.
In suchlike cases, it is for the prosecution to rule out possibility of tampering with the case property.
The country made pistol and the cartridges are stated to have been sent to FSL for analysis. As per prosecution version, these were so sent to FSL on 08.11.2003 through Constable K.N. Goud. -:27:-
At this stage, when we advert to the statement of PW18 Constable K.N. Goud, it would transpire that according to him, he collected one sealed parcel pertaining to case FIR No. 540/03 and deposited the same at FSL, Malviya Nagar, on 08.11.2003. But a perusal of report Ex. PX, received from FSL, would reveal that the sealed parcel was delivered at FSL on 11.11.2003 and not on 08.11.2003. Prosecution has failed to explain as to how the parcel collected by PW18 from the MHC(M) on 08.11.2003 reached FSL on 11.11.2003. Non- explanation in this regard further creates doubt in the version of the prosecution regarding recovery of the firearm and ammunition as prosecution has filed to rule out possibility of tampering with the case property, particularly when there is no corroboration from independent source and no witness from the public was associated despite ample opportunity. Recovery of firearm and ammunition from Vipin accused:
Case of prosecution is that after the arrest of Vipin accused from Outer Ring Road, Opposite District Park, in the area of Paschim Vihar, his personal search led to recovery of one country made pistol loaded with a live cartridge. In this regard, recovery memo Ex. PW9/B has been placed on record. This memo is stated to have been prepared by ASI -:28:- Pritam Raj and attested by Constable Ram Kishan. ASI Pritam Raj has appeared in court as PW16 whereas Constable Ram Kishan has appeared in court as PW9.
According to PW9, one country made pistol was recovered from the right side pocket of pant of Vipin accused. He further deposed about recovery of one live cartridge from the country made pistol. On the other hand, according to PW16 ASI Pritam Raj, a country made pistol loaded with a live cartridge was recovered from the fold of pant of Vipin accused. Thus, statements of the two PWs are not in consonance with each other regarding the place from where the recovery was made, as according to one, it was recovered from the pocket, and according to the other, it was not recovered from the pocket but from the fold of the pant. Contents of recovery memo Ex. PW9/B would reveal that recovery was allegedly made from the right side pocket of the pant.
Case of prosecution is that country made pistol and live cartridge were turned into a parcel and sealed with the seal bearing impression "PRK". It was for the prosecution to establish that after use, the seal was actually delivered to PW9 Constable Ram Kishan by ASI Pritam Raj. However, a -:29:- perusal of statement of PW9 Constable Ram Kishan would reveal that he nowhere deposed that after use, the seal was delivered to him by the ASI. Even PW16 ASI Prtiam Raj did not state in his chief examination about entrustment of seal by him to Constable Ram Kishan. But the fact remains that PW9 Constable Ram Kishan did not depose about its entrustment to him. Had the seal been entrusted to him, PW9 would not have omitted to state about this fact.
The country made pistol and the cartridge stated to have been recovered from Vipin accused were allegedly sent to FSL for analysis on 08.11.2003. But, a perusal of report Ex. PY, received from FSL, would reveal that the sealed parcel pertaining to case FIR No. 541/03 was received in the Office of FSL through Constable K.N. Goud on 11.11.2003. It was for the prosecution to explain as to how the sealed parcel, delivered to the Constable on 08.11.2003, reached FSL on 11.11.2003. This fact further creates doubt in the prosecution version regarding recovery of firearm and ammunition particularly when no person from the public was associated during the investigation despite opportunity.
Recovery of mobile phone from Akash accused:
Case of prosecution is that Akash accused made -:30:- disclosure statement Ex. PW11/D and in pursuance thereof led the police party to his house and got recovered one mobile phone make Eurotel from a bed lying there. In this regard, prosecution has relied on disclosure statement Ex. PW11/D and recovery memo Ex. PW1/A. So far as disclosure statement Ex. PW11/D is concerned, it is pertinent to mention that to prove a disclosure statement, the investigating officer or the police official/police officer, in whose presence such a disclosure statement is made, has to depose in court atleast the admissible portion to show that such and such fact was discovered in pursuance thereof. However, in this case, while appearing in court as PW11, ASI Gyan Singh did not utter even a word about contents of the disclosure statement. Constable Sunder Singh, attesting witness of the disclosure statement, also did not narrate any of the contents of the disclosure statement. Therefore, it can safely be said that prosecution has failed to prove if any such disclosure statement was made by Akash accused.
As regards recovery of mobile phone, same is alleged to have been made from second floor of H.No. K-334, J.J. Colony, Wazirpur, Delhi. According to PW1 Constable -:31:- Bijender, Akash accused led the police party to Wazirpur and got recovered from his house two mobile phones. Firstly, PW1 did not state as to what was the complete address of the house of Akash accused. Secondly, he made statement in contradiction with the version of the prosecution by stating about recovery of two mobile phones, although as per prosecution version, only one mobile phone was recovered.
According to ASI Gyan Singh, only one mobile phone was recovered from Akash accused; that same was turned into a parcel, sealed and then seized. PW1 Constable Bijender nowhere deposed as to what was the impression of the seal with which the two mobile phones, recovered from Akash accused, were sealed. He also did not depose that after use, the seal was entrusted to him by ASI Gyan Singh. Thus, prosecution has failed even to rule out possibility of tampering with the case property.
At this stage, when we advert to statement Ex. PW4/A made by Vikas Tiwari, complainant, before the police after robbery, it would transpire that no mobile phone make Eurotel was stated to have been taken away by the culprits at the time of robbery. So, it can also be said that prosecution has failed to prove recovery of any mobile phone belonging to -:32:- the complainant, from Akash accused.
It is in the statement of PW1 Constable Bijender that one lady and some children were found present at the house of Akash accused, when they reached there. When case of prosecution is that recovery was going to be effected from a house, the investigating officer must have complied with the provisions of Section 100(4) CrPC by joining witnesses from the locality. In this case, when PW1 admits presence of a lady and some children at the time of their arrival at the house of Akash accused, the investigating officer could associate atleast the said lady even if he did not join anyone from the locality. Non-joining of persons from the public in the given facts and circumstances, creates doubt about recovery of any incriminating material from Akash accused.
Recovery from Vipin accused:
It is case of prosecution that Vipin accused made disclosure statement Ex. PW11/E and then led the police party to the first floor of his H.No. K-562, J.J. Colony, Wazirpur, and from there, got recovered one chain, which was lying broken from near the hook, and a mobile phone make Samsung. In this regard, prosecution has placed -:33:- reliance on disclosure statement Ex. PW11/E and recovery memo Ex. PW1/B. So far as disclosure statement Ex. PW11/E is concerned, it may be mentioned here that none of the prosecution witnesses has deposed in court as to what was disclosed by Vipin accused or offered to be discovered, and from which place. Therefore, no reliance can be placed on disclosure statement Ex. PW11/E. A perusal of statements of witnesses would reveal that same are in contradiction with each other regarding the sequence in which the houses of the accused persons were searched. According to PW11 ASI Gyan Singh, first of all, Vipin accused led the police party to his house and got recovered gold chain and mobile phone. According to PW1 Constable Bijender, attesting witness to the recovery memo Ex. PW1/B and PW11 ASI Gyan Singh, first of all, they went to the house of Vipin accused and then to the house of Akash accused. On the contrary, PW8 Constable Siya Ram deposed that first of all, Akash accused led them to his house and it was thereafter that Vipin accused led them to house of his brother. This material contradiction in the statements of the witnesses creates doubt about version of the prosecution -:34:- regarding the manner in which recoveries are stated to have been made.
As noticed above, in case of house search, compliance is required to be made in accordance with the provisions of Section 100 (4) CrPC. Recovery memo Ex. PW1/B does not bear attestation of any witness from the public. PW1 Constable Bijender admitted in his cross examination that at the time they reached the house of Vipin accused, his sister in law was found present there but she was not asked to attest any of the memos. There is no explanation from the side of the prosecution as to why atleast sister in law of Vipin accused was not joined in the investigation. PW11 ASI Gyan Singh admitted that recovery memo prepared at the house of Vipin accused was not got attested from his family members. He tried to explain that no person from the locality came forward for being associated in the investigation. But the fact remains that none of the family members of the Vipin accused was asked to be an attesting witness to the recovery.
Case of prosecution is that mobile phone and the gold chain were turned into a parcel and then sealed with the seal bearing impression "GS". It was for the prosecution to -:35:- establish that after use, the seal was delivered by ASI Gyan Singh to some other member of the party if not to any witness from the public, so as to rule out possibility of tampering with the case property. PW11 ASI Gyan Singh stated that after use, he entrusted the seal to Constable Bijender. But PW1 Constable Bijender Singh nowhere deposed that after use, the seal was entrusted to him by the ASI. Thus, prosecution has failed to rule out possibility of tampering with the case property stated to have been got recovered by Vipin accused from his house.
Recovery from Prakash Sharma accused:
Case of prosecution is that one mobile phone make Nokia, one mobile phone make Siemens and one gold ring were got recovered by Prakash accused from his house situated on the first floor of H.No. BK1/23B, Shalimar Bagh, Delhi. In this regard, prosecution has relied on disclosure statement Ex.PW1/L and recovery memo Ex. PW1/C. It may be mentioned here that as per prosecution version, Prakash accused was arrested from his house after the arrest of Rambir, Vipin and Akash.
PW1 Constable Bijender deposed about recovery of one gold ring, one old mobile phone and one new mobile -:36:- phone from Prakash accused. Further,according to him, these were turned into a parcel and sealed with the seal bearing impression "GS".
It may be mentioned here that PW5 Constable Sunder Singh, who was also a member of the party, nowhere deposed about making of any disclosure statement by Prakash accused or about any recovery from his house.
PW8 Constable Siya Ram deposed about recovery at the instance of Prakash accused, but no reliance can be placed on his statement as the witness was not further examined in court after his examination was recorded in part in chief on 04.02.2005.
PW9 Constable Ram Kishan, another member of the party, deposed about disclosure statements made by Rambir, Akash and Vipin accused, but he nowhere deposed about arrest of Prakash accused or making of his disclosure statement or any recovery from his possession or at his instance.
Similarly, PW10 ASI Balwan Singh did not depose about arrest of Prakash accused or any recovery at his instance or from his house.
A perusal of recovery memo Ex. PW1/C in -:37:- respect of Prakash accused would reveal that it does not bear attestation of any witness from the public. As noticed above, ASI Gyan Singh was required to comply with the provisions of Section 100(4) CrPC at the time of recovery, before raiding the house of the accused and effecting the recovery. However, no one from the locality or from family members of Prakash Sharma accused was informed or associated to be a witness to the recovery. Non-compliance with mandatory provisions of Section- 100 (4) CrPC in the given facts and circumstances of the case, creates doubt regarding recoveries from Prakash Sharma accused as well. Recovery from Rambir, companion of the accused:
Case of prosecution is that Rambir (juvenile) was arrested and from his possession one country made pistol was recovered and that in pursuance of his disclosure statement, one diamond ring was recovered from his house situated in E-184, Yadav Nagar, Delhi. It may be mentioned here that separate challan was put in court so far as Rambir is concerned, he being juvenile, and as such, it would not be appropriate for this court to discuss the prosecution version regarding involvement of Rambir in commission of the present crime and regarding the alleged recoveries made from him. -:38:- Conclusion:
In view of the above discussion, this Court comes to the conclusion that prosecution has failed to substantiate any of the accusation levelled against any of the accused persons, present in court. Consequently, all of them,namely, Akash, Vipin and Prakash Sharma accused, are acquitted in this case. Akash and Vipin accused are also acquitted in case FIR No. 540/03 and 541/03.
File be consigned to Record Room.
Announced in Open Court on Dated: 12th of December, 2007 [NARINDER KUMAR] Additional Sessions Judge Fast Track Court: Rohini/Delhi 12/12/2007