Delhi District Court
Briefly Stated The Facts Of The Present ... vs Unknown on 31 May, 2023
IN THE COURT OF MS DEEPALI SHARMA:
ADDITIONAL SESSIONS JUDGE -04: EAST DISTRICT
KARKARDOOMA COURTS: DELHI
CNR No. DLET01-000201-2008
SC No. 1339/2016
FIR No. 354/2008
U/s. 302/392/397/120-B IPC & 27 Arms Act
P.S Shakarpur
In the matter of :
State
versus
1) Yogesh @ Hariom
s/o Raghuveer Singh,
r/o C-44/237, Gali No. 13,
Sudamapuri, Part-II, Bhajanpura, Delhi.
2) Arun Sharma,
s/o Dinesh Chand,
r/o 1/5450, Gali No. 16, Balbir Nagar Ext.,
Shahdara, Delhi.
Presently r/o D-715, Gali No. 7,
Ashok Nagar, Delhi.
3) Deepak Soni @ Bhola,
s/o Mohinder Singh,
r/o 390, Village Ghogha,
PS Narela, Delhi.
Present r/o H.No. 149,
Village & Post Office Ghoaga, Delhi-39.
4) Hari Kishan @ Hari,
s/o Rajesh Sharma,
r/o 789, Sector-7, R.K.Puram, Delhi.
(Proceedings already abated vide order dated 09.03.2015.)
Date of Institution : 10.02.2009
Date of reserving Judgment : 27.05.2023
Date of pronouncement : 31.05.2023
Sessions Case No. 1339/2016 Page 1/51 ASJ-04/East/KKD Court
Appearance
For the State : Sh. Ajit Kumar Srivastava,
Additional Public
Prosecutor.
For accused persons : Shri Ashok Kumar Tiwari,
advocate, Amicus Curie for
accused Yogesh @ Hariom
and Arun Sharma.
Sh. Ashutosh Bhardwaj,
advocate, for accused
Deepak Soni.
JUDGMENT
1. Briefly stated the facts of the present case are that on 08.07.2008 at about 12.12 hours an information was received at PS Shakarpur via a PCR call that at R-50, Mangalam Building, Shakarpur, two boys with guns were committing robbery. DD No. 26A Ex. PW30/A was recorded in this regard and the same was assigned to ASI Surender Hooda (PW36), who alongwith PW15 Ct. Dharmender reached the spot i.e. R-50, Nokia Showroom, Mangalam Building, Vikas Marg, Shakarpur, Delhi, where he came to know about the incident and also came to know that injured was shifted to Walia Nursing Home. Beat Constable Om Dutt also joined the proceedings. SI Surender Pal Hudda alongwith Const. Om Dutt proceeded for Walia Nursing Home, leaving Ct. Dharmender at the spot, where he received the MLC no. 1521/08 dated 08.07.2008 Ex. PW6/A of injured Mahesh Kapoor by which Mahesh Kapoor was declared brought dead. Eye witness Sukhdev Singh met SI Surender Pal Hudda at Walia Nursing Home and IO recorded his statement Ex. PW17/A, wherein he stated that he was working as a Guard at Sessions Case No. 1339/2016 Page 2/51 ASJ-04/East/KKD Court Nokia Showroom of Sh. Pradeep Katiyar at R-50, Mangalam Building, Vikas Marg, Shakarpur. On 08.07.2008 he was on duty from 8.00 am to 8.00 pm. At about 12.05 pm Mahesh Kapoor, employee of his company, brought money from bank in a blue colour bag having print of 'NOKIA' and parked his scooter on patri and after putting off his helmet with his right hand, he reached near the gate of the showroom by holding bag in his left hand. As soon as he got up to open the gate, two boys, who were wearing black colour helmet but the visor of helmet were opened, and one of them caught the money bag from the hand of Mahesh Kapoor and he was holding a black colour pistol in his right hand and shot bullet in the leg of Mahesh Kapoor, as a result of which Mahesh Kapoor fell down. Both the boys grabbed the bag and tried to snatch it, but Mahesh Kapoor did not leave the bag, thereafter both the boys dragged him towards the corner of western side gali of Mangalam Building. The other boy also took out his pistol and both the boys repeatedly shot Mahesh Kapoor with bullets. Upon hearing gun shot noise, owner of showroom Pradeep Katyal came out. Thereafter, both the boys started running away in the street while holding pistols in their hands after snatching the bag of money from Mahesh Kapoor. He and his employer Pradeep Katyal raised an alarm 'Pakro- Pakro'. Both the boys snatched one motorcycle on the point of pistol in the gali and when they were turning the motorcycle, the motorcycle fell down and then both of them ran away after leaving the motorcycle. Both the boys were of strong built body and were of young age and he could identify both the boys. ASI Surender Huda returned at the spot and made endorsement on the statement of Sukhdev Singh Ex. PW17/A and prepared Rukka Sessions Case No. 1339/2016 Page 3/51 ASJ-04/East/KKD Court Ex. PW36/A. He handed over the Rukka to Ct. Dharmender for taking it to PS for registration of FIR.
2. An FIR bearing no. 3514/2008 Ex. PW4/A was registered on 08.07.2008 u/s 302/392/394/397/34 IPC and Section 27 of the Arms Act. Thereafter, investigation was assigned to Insp. Vijay Dham, SHO PS Shakarpur, who alongwith Const. Dharmender reached the spot i.e. in front of R- 50, Mangalam Building where ASI S.P.Hudda and Ct. Dharmender were present. Insp. V.K.Dham found a cartridge and a bullet led lying on the footpath. One motorcycle was also lying in the Western Lane of Manglam Building, which was reported to have been snatched from one Pawan and then left by the offenders. He also came to know that one Mahesh Kumar was robbed and caused gun shot injury and shifted to Walia Nursing Home. Crime team was called at the spot, which inspected the spot and took photographs. Chance prints were lifted by the finger print proficient of Crime Team from black Pulsar motorcycle which was lying parked at the spot. Discover motorcycle of black colour was lying in the Western Lane bearing registration no. DL-7SAQ-5217 was seized by IO vide seizure memo Ex. PW15/E. Black Pulsar motorcycle bearing registration no. DL-6SV-4926 was seized by IO vide seizure memo Ex. PW15/C. LML scooter bearing registration no. DL- 7SP-2114, lying parked in front of NOKIA showroom in R-50 Manglam Building, Shakarpur, was seized by IO vide seizure memo Ex. PW15/D. IO prepared sketch Ex. PW15/A of the empty cartridge (Ex. P15/2) and one fired bullet (Ex. P15/1). Same were kept in a matchbox and a cloth pullanda was Sessions Case No. 1339/2016 Page 4/51 ASJ-04/East/KKD Court prepared, sealed and seized vide seizure memo Ex. PW15/B. He deposited the case property in the malkhana.
3. IO conducted further investigation and on 09.07.2008, IO went to Subzi Mandi Mortuary and filled up the inquest form Ex. PW30/B. The dead body was identified by son and brother of the deceased Mahesh Kumar vide identification statement Ex. PW1/A. The dead body was handed over to them vide handing over memo Ex. PW2/A. IO made request to the doctor to conduct the post mortem on the dead body of deceased and on directions of Dr. S.Lal, the dead body was shifted to Aruna Asaf Ali Hospital for X-Ray and after X-Ray, the post mortem on the body was conducted at Subzi Mandi Mortuary and after post mortem the dead body was handed over to son of deceased Rohit Kumar vide memo Ex. PW2/B. After post mortem of dead body of Mahesh Kumar, the doctor handed over to Ct. Om Dutt a sealed plastic jar ( containing three bullet leads), one pullanda containing the clothes of deceased, blood sample and sample seal, which were seized by IO vide seizure memo Ex. PW14/A. IO ascertained the ownership of motorcycle no. DL-6SB-4926, which was found registered in the name of Sanjay Gaur and financed by Mandeep Finance. Manager of Mandeep Finance produced copy of Form No. 1, ID of Sanjay Gaur, Form No. 2D, Bank statement of United Bank, Timarpur, Income Tax proof, Balance Sheet Ex. PW3/B (colly) and IO seized the same vide seizure memo Ex. PW3/A. On application of IO, statements of Sanjay Gaur and Sunil @ Deva were recorded u/s 164 Cr.P.C. by Sh. G.N.Pandey, Ld.M.M. Sessions Case No. 1339/2016 Page 5/51 ASJ-04/East/KKD Court
4. On 07.08.2008, SI Bhanu Kanwaria informed the IO Insp. V.K.Dham that accused Yogesh @ Hari Om and Arun had been arrested in case FIR No. 395/2008 and from them two pistols were recovered. SI Bhanu Kanwaria also produced relevant documents pertaining to case FIR No. 395/2008 i.e. disclosure statements of accused Yogesh Ex.PW24/J, disclosure statement of Arun Sharma PW24/H, seizure memo of articles recovered from accused Arun Sharma Ex. PW26/A, seizure memo of articles recovered from accused Yogesh Ex. PW26/B, seizure memo pertaining to seizure of articles from accused Yogesh Ex. PW26/C and seizure memo of one empty cartridge Ex. PW30/X. SI Bhanu Kanwaria produced accused Arun and Yogesh and IO arrested them in this case vide arrest memo Ex. PW24/A and Ex. PW24/B respectively.
5. On 08.08.2008 SI Yashpal, SI Satender Khari, Const. Rahul Kumar alongwith police team went to IP Depot Metro Station and on seeing them one person started running but they apprehended him near Pragati Maidan. On inquiry he disclosed his name as Hari Kishan @ Hari and he was taken to Bus Stand Ramesh Park, Pushta Road, where he was produced before IO/Insp. V.K.Dham, who interrogated him and recorded his disclosure statement Ex. PW28/C, arrested him vide arrest memo Ex. PW24/C, conducted his personal search vide personal search memo Ex. PW28/A.
6. On 08.08.2008 IO moved an application Ex.
PW30/C for TIP of accused Yogesh and Arun. IO also prepared TIP intimation memos Ex. PW24/F and Ex. PW24/G informing Sessions Case No. 1339/2016 Page 6/51 ASJ-04/East/KKD Court them that the TIP will be conducted by the complainant and asked them to keep their faces covered. Both the accused refused to take part in the TIP. Accused persons Arun, Yogesh and Hari Kishan pointed out the place of occurrence in front of Manglam Building vide memos Ex. PW24/D, PW24/E and Ex. PW28/B respectively.
7. ACP Special Staff (outer) informed IO over telephone about arrest of accused Deepak Soni @ Bhola, who was involved in this case, in an Arms Act case at PS Kanjhawaland and as such IO moved an application Ex. PW30/D before the court for interrogation and arrest of accused Deepak Soni and after obtaining permission, IO interrogated accused Deepak Soni @ Bhola and recorded his disclosure statement Ex. PW28/E and arrested him vide arrest memo Ex. PW28/D. Accused Deepak Soni also pointed out place of occurrence. IO also collected the copies of FIR No. 115/2008, PS Kanjhawala, u/s 25 Arms Act; his disclosure statement; seizure memo of pistol and statement of witnesses recorded in that case Ex. PW30/X-1 (colly). IO prepared site plan Ex. PW30/F.
8. The exhibits were sent to FSL through Const. Ravinder for comparison of empty cartridge and lead recovered from the body of the deceased alongwith two pistols recovered from accused Arun and Yogesh in FIR No. 395/2008 PS Shakarpur. IO collected the postmortem report Ex. PW27/A and X-Ray report Ex. PW31/A. During PC remand, IO collected finger prints of accused Yogesh and Arun and sent the same to Finger Print Bureau vide application Ex. PW30/E for comparison Sessions Case No. 1339/2016 Page 7/51 ASJ-04/East/KKD Court with chance prints recovered from the motorcycle used by the accused persons, which was parked in front of Manglam Building. IO recorded statements of witnesses u/s 161 Cr.P.C.
9. After completion of investigation, charge sheet was filed u/s 392/394/397/302/120B/34 IPC and 27/54/59 Arms Act against all the accused persons namely Yogesh @ Hariom, Arun Sharma, Hari Kishan @ Hari and Deepak Soni @ Bhola.
10. On the basis of charge-sheet and the documents submitted with it, the learned Chief Metropolitan Magistrate (East), Karkardooma Court, took cognizance of offence under Section u/s 392/394/397/302/120B/34 IPC and 25/54/59 Arms Act on 31.10.2008 and after complying with the provisions contained in Section 207 Cr.P.C, vide order dated 04.02.2009 committed the case to the Court of Session for 09.02.2009.
Charge :
11. On 25.05.2009, after hearing the learned Additional Public Prosecutor for the State and the counsel for the accused persons, court was of the opinion that prima facie there is sufficient material on record to frame charge against accused Yogesh @ Hariom, Arun Sharma, Hari Kishan @ Hari and Deepak Soni @ Bhola under Section 120B IPC and 392/302 IPC r/w 120B IPC; charge against accused Yogesh @ Hariom and Arun Sharma under Section 397 IPC and under section 27 Arms Act. The charges so framed were read over and explained to the accused persons to which they did not plead guilty and claimed trial.
Sessions Case No. 1339/2016 Page 8/51 ASJ-04/East/KKD Court Prosecution Evidence :
12. In order to prove its case, the prosecution examined following witnesses.
(i) PW1 - Rajeev Kapoor, brother of the deceased Mahesh Kapoor, who identified the dead body vide Ex. PW1/A.
(ii) PW2 - Rohit Kapoor, son of the deceased, to whom dead body of the deceased was handed over after postmortem vide Ex. PW2/A.
(iii) PW3 Jugal Kishore Chaudhary, who was working in finance company, which had financed motorcycle bearing registration no. DL-6SV-4926 to hirer Sanjay Gaur. He proved the documents of motorcycle Ex. PW3/A.
(iv) PW4 HC Sompal, Duty Officer, who registered FIR 354/2008 vide Ex. PW4/A.
(v) PW5 Pradeep Katyal, owner of the mobile phone showroom at R-50, Mangalum Building, Vikas Marg, Shakarpur, Delhi-92, who deposed that on 08.07.2008 at about 12.00 noon, he was present in his showroom in the back office to take a mobile to show the same to the customer. As soon as he came from the cabin, his guard PW17 Sukhdev Singh called him and told that Mahesh Kapoor (deceased) was being dragged by two persons, who had given him bullet shot. He came outside the showroom and found Mahesh Kapoor lying on the ground. PW5 Sessions Case No. 1339/2016 Page 9/51 ASJ-04/East/KKD Court further deposed that he shouted and told Mahesh Kapoor to leave the bag containing cash which he was carrying. When he reached near Mahesh Kapoor, those two persons had already gone with the bag from there after giving bullet shot. He called his staff from the showroom for taking Mahesh Kapoor to the hospital. Those two persons tried to snatch the motorcycle from a public person but the bike fell down on the ground and thereafter both persons ran away towards the street after leaving the motorcycle. Bag which Mahesh Kapoor was carrying and which was taken away by those two persons was containing currency amount Rs. 1,34,000/-. PW5 further deposed that out of Rs. 1,34,000/-, Rs. 84,000/- were withdrawn from ICICI Bank, Vikas Marg, Preet Vihar and Rs. 50,000/- were withdrawn from HDFC Bank, Laxmideep Building, Laxmi Nagar by Mahesh Kapoor from the account of his company. Cheques of HDFC Bank bearing No. 126001 and 376381 were issued by his wife Smt. Rita Katyal and same are Ex. PW5/B and Ex. PW5/C respectively. He had provided certificate Ex. PW5/D to the police to show that Mahesh Kapoor (deceased) was working with his organization. PW5 also handed over the attendance register Ex. PW5/E of the month of July, 2008 to show the attendance of Mahesh Kapoor to the police. PW5 also issued a certificate Ex. PW5/J showing that he is availing security services from M/s Cabal Lancers Security System. PW5 also handed over the copy of attendance register of July, 2008 Ex. PW5/K in respect of security guard to PW17 Sukhdev Singh. PW5 had seen those two persons while snatching the bag from Mahesh Kapoor. Cheque no. 041872 of ICICI Bank is Ex. PW5/A amounting to Rs. 84,000/- which was withdrawn by Mahesh Kapoor Sessions Case No. 1339/2016 Page 10/51 ASJ-04/East/KKD Court (deceased). PW5 also handed over the copy of counter slip of passbook Ex. PW5/F and Ex. PW5/G. PW5 also handed over the copy of bank statement Ex. PW5/H. Pertinently PW5 deposed that he had seen the assailants while they were snatching the bag from deceased Mahesh Kapoor. PW5 was in a state of nervousness and at a distance of about 20-25 feet therefore, he could not see the weapon in the hands of the assailants and deposed that he had not seen the faces of the assailants. He did not remember whether the glasses/visor of the helmets were open or not.
(vi) PW6 Dr. Amar Lal, of Walia Nursing and Maternity Home, who medically examined Mahesh Kapoor vide MLC PW6/A and declared the victim as brought dead.
(vii) PW7 Dr. Rolly Gupta of Walia Nursing and Maternity Home, who medically examined Mahesh Kapoor vide MLC PW6/A and declared the victim as brought dead.
(viii) PW8 Karan Singh, deposed that when he was admitted in the Hindu Rao Hospital, one Sunil @ Deva, whose brother namely Pradeep Singh was in Delhi Police, met him there. Sunil @ Deva told him in the hospital that police officials were coming to arrest him and asked him to make a complaint against police officials. At that time, Pradeep, brother of Sunil @ Deva, obtained his signatures on some blank papers. He stated that he did not know anything about the present case and when he received the summons, he came to know that he had been shown as a witness in this case. Nothing happened in his Sessions Case No. 1339/2016 Page 11/51 ASJ-04/East/KKD Court presence. PW8 was cross-examined by the Ld. Addl.P.P. for the State and he denied that about one year prior to present incident, he was in judicial custody in a murder case and there he met with accused Hari Kishan @ Hari (proceedings abated), who was the co-accused of his friend Billu Pehlwan and after being released from judicial custody, accused Hari Kishan met him on a date of hearing in the court and at that time accused Yogesh @ Hari Om and Arun Sharma were with him. He denied that all of them started talking with each other and exchanged the addresses and started visiting each other's house. He denied that they became good friends or that he also visited workshop Star Auto of accused Arun Sharma. He denied that on 07.07.2008 he alongwith accused Yogesh @ Hariom and Arun Sharma had gone to a birthday party of Subhash Cable Wala at Vijay Park, Maujpur, and he reached there on his black colour Pulsar motorcycle no. DL-6SV-4926, which was purchased by him from PW22 Sunil @ Deva in April 2008. He denied that he consumed too much liquor. Accused Yogesh and Arun Sharma told him that they had to go to Panipat on the next day and both of them demanded his motorcycle and assured PW8 to return the motorcycle next day at 02.00 pm at the shop of accused Arun Sharma. He denied that at that time accused Hari Kishan and one more person namely Bhola was also with accused Arun Sharma. PW8 denied that thereafter they all came near house of PW8 at E Block, Shiv Mandir wali Gali, Brahmpuri and took his motorcycle. He denied that accused Arun Sharma and Yogesh went on his motorcycle and accused Hari Kishan and Bhola went from there in an auto. PW8 denied that he parked car of accused persons there and then PW8 returned home. He denied that on Sessions Case No. 1339/2016 Page 12/51 ASJ-04/East/KKD Court 08.07.2008 at about 02.00 pm, he reached at the workshop of accused Arun at 60 Foota Road, Balbir Nagar and he delivered the key of car and on demanding the key of his motorcycle from accused Yogesh and Arun, both of them told him that they will not return the motorcycle to him and also told him to lodge the report of theft of his motorcycle and when he asked the reason, both of them told him that they had committed a robbery in the area of Shakarpur at Vikas Marg and the said motorcycle had been left there. PW8 denied that both the accused threatened him that if he takes any action, both of them will also name him in that case and on the next day. PW8 denied that he went to Bulandshahar and from the Bulandshahar Court he sent a fax to the Commissioner of Delhi Police Sh. Y.S.Dadwal and discloing the entire incident. PW8 denied that he had purchased the said motorcycle from Deva and had already paid the purchase amount but the motorcycle was not transferred in his name and he was not aware that accused persons had taken his motorcycle to commit an offence of robbery. PW8 also denied that he had given three fax slips and two photocopies of fax to the IO in presence of PW38 HC Deepak which was seized vide seizure memo Ex. PW8/A. PW8 admitted his signatures on the seizure memo of the fax slips Ex. PW8/A. However, he volunteered that his signatures were obtained by Pradeep, brother of Sunil @ Deva on blank paper at Hindu Rao Hospital. He denied that he had faxed three papers from Bulandshahar Mark-A-1 to A-3 and fax slips are Mark PW38/A-1, A-2 and A-3. PW8 denied that in the second and third week of July, when he was not present at his home, accused Hari Kishan @ Hari and Deepak Soni @ Bhola had visited his house and they told Shobha, sister of PW8, that if Sessions Case No. 1339/2016 Page 13/51 ASJ-04/East/KKD Court anyone told to the police that the motorcycle was taken by accused Arun and Yogesh and if anyone among them were apprehended by the police, they will give name of PW8 in a murder case and they had also made a telephone call to PW8, after taking his telephone number from his sister, that if he told anything to the police, they will take his name in a murder and dacoity case and due to fear PW8 had broken the SIM card of his mobile phone.
PW8 denied that he had purchased the motorcycle from Sunil @ Deva and the same was used by them in committing robbery in the area of PS Shakarpur. He denied that the motorcycle shown in two photographs Mark-A4 was the same motorcycle which was purchased by him from Sunil @ Deva. He also denied that he had been won over by the accused persons and was deposing falsely and was supressing the truth to save them. He also failed to identify the accused persons present before the court.
(ix) PW9 Pawan - owner of motorcycle no. DL-7S AQ- 5217. He deposed that about one year back at about 12 noon, he was going to Gandhi Nagar from Shakarpur and when he reached Vikas Marg near some Dental Clinic, and was standing there, two persons came to him having pistol in their hands and asked him to leave the bike bearing no. DL-7S-AQ-5217 Ex. PW15/4. He left his bike and ran away leaving his bike. After about five minutes, he came back where he left his bike, he found his bike lying on the ground and police was already present there and asked him to leave his bike. Both the persons were wearing helmets and he could not see their faces. Thereafter, he went to Sessions Case No. 1339/2016 Page 14/51 ASJ-04/East/KKD Court PS Shakarpur. After about 2/3 days, he got his bike released. He further stated that he could not see the faces of the accused persons and could not identify them if shown to him. He was cross-examined by the ld. Addl.P.P. for the State, however, he failed to identify the accused persons as the persons, who were present at the time of incident. He further denied that he had been won over by the accused persons.
(x) PW10 Anil Kumar, who deposed that he was running a chemist shop in the name of Health Aid Center at Shakarpur, Vikas Marg, Delhi, and on the day of incident he was standing inside his shop and he heard noise 'pakro-pakro' He came outside and saw two boys running inside the gali (i.e. gali behind the spot), who were wearing helmets and both of them had revolvers in their hands. He stated that he had not seen the incident. He could not identify those persons as they were wearing helmets and visor of the helmets were also closed. He was cross-examined by the ld. Addl.P.P. for the State, however, he failed to identify the accused persons as the persons, who were present at the time of incident.
xi) PW11 Ct. Satish Kumar, who was posted in mobile Crime Team as finger print expert. On 08.07.2008 he went to the spot and lifted chance prints and developed the same.
xii) PW12 Dr. A.S.Dave of Walia Nursing and Maternity Home, who medically examined Mahesh Kapoor vide MLC PW6/A and declared the victim as brought dead.
Sessions Case No. 1339/2016 Page 15/51 ASJ-04/East/KKD Court
xiii) PW13 Ct. Sanjeev - photographer with the Crime Mobile Team, who proved the photographs of the spot Ex. PW13/A, A1 to A10 and negatives as Ex. PW13/B (colly).
Xiv) PW14 Ct. Om Dutt. On 08.07.2008 he alongwith ASI Surender Pal went to the spot and then they went to Walia Nursing Home, where he came to know that the victim was declared brought dead. He took the dead body to Subzi Mandi Mortuary, where after postmortem dead body was handed over to relatives of deceased. He took one sealed plastic bag polythene bag, one envelop and sample seal of the hospital and handed over the same to IO, who seized the same vide seizure memo Ex.
PW14/A. xv) PW15 Ct. Dharmender. He deposed that on
08.07.2008 after receiving DD No. 26A, he alongwith ASI Surender Pal went at the spot, where they came to know that victim has been taken to Walia Nursing Home. IO left him at the spot for guarding the spot and IO went to Walia Nursing Home. After some time IO came back to the spot prepared a rukka and handed over to him. He went to police station and got the FIR registered. He prepared sketch of the empty cartridges vide Ex. PW15/A and sealed and seized the same vide memo Ex. PW15/B. IO also seized two motorcycles and one scooter vide seizure memos Ex. PW15/C, PW15/D and PW15/E. xvi) PW16 Kanwarjeet Grover deposed that on 24.10.2008, he was working as Branch Manager, HDFC Bank, Laxmideep Building, Vikas Marg, he produced two original cheques of Sessions Case No. 1339/2016 Page 16/51 ASJ-04/East/KKD Court HDFC Bank bearing No. 126001 (Ex. PW5/B) and 376381 (Ex. PW5/C), each amounting to Rs. 25,000/- and IO seized the same vide Seizure Memo Ex. PW16/A. xvii) PW17 Sukhdev Singh - complainant. He deposed that in the year 2008 he was working as Guard at Nokia Showroom at R-50, Mangalam Building, Vikas Marg, Shakarpur. On 08.07.2008 he was on duty from 8.00 am to 8.00 pm. After lunch time i.e. after 2.00 pm Mahesh Kapoor, employee of his company, came there from outside and he saw two boys with their faces covered with helmets. He did not notice if Mahesh Kapoor was carrying anything at that time. Those two boys came there and caught hold of Mahesh kapoor and they dragged Mahesh Kapoor towards cornor of Mangalam Building. The boys had thin physique and were 5 feet tall. He could not see their faces. He heard sound of gun shots after about five minutes since the time those two boys took away Mahesh Kapoor towards corner of the Mangalam building. He did not see anyone shooting anybody. The police came at the spot after about half an hour. PW17 got scared and went inside the Nokia Showroom. He did not see the mode of transport of those two boys. He met the police after 10-12 days at PS Shakarpur and stated that the police took his signatures on a blank paper on the date of incident.
PW17 was cross-examined by ld. Addl.P.P. for the State and he denied the details of the incident as stated by him in his complaint Ex. PW17/A. He stated that he had only heard the sound of gun shot and had not seen anybody firing those shots. He denied that he was changing his version frequently to mislead Sessions Case No. 1339/2016 Page 17/51 ASJ-04/East/KKD Court the court. He deposed that he could not say that the two boys came on a motorcycle and denied that he had told the IO in his statement dated 08.07.2008 Mark-A that those two boys came on a motorcycle bearing no. DL-6SV-4926 Pulsar black colour or that they took a left U-turn from little ahead of Subham Sarees to reach in front of Nokia Showroom and parked their motorcycle there. He further denied that prior to fleeing, both the boys took off their helmets and held them in their hands. He could not comment if the motorcycle shown in photographs Ex. PW13/A2 to A5 was recovered from the spot. He denied that accused Yogesh and Arun, who were present in the court were the same persons, who came at the spot on a motorcycle and snatched money bag from the hand of Mahesh Kapoor and fired at him. He denied that he was deliberately not identifying the accused persons in order to save them as he had been won over by them.
He further deposed that he went to PS Shakarpur after about 10-12 days as the police officials had called him to identify 2-3 boys. He denied that he was not called at PS after 10-12 days or that his signatures were not obtained by the police officials on any blank papers.
xviii) PW18 Dinesh Kumar Mandal - deposed that about 2 - 2 ½ years ago he was working as Chowkidar at Gupta Colony, Malviya Nagar, Khirki Extn., Delhi, and police came and inquired about Hari Kishan and Deepak Sharma, who used to reside in Building No. JE 16/A, Flat No. A-7 Second Floor, and thereafter police sat with him for 6-7 days and then took him alongwith landlord of accused Hari Kishan and Deepak Sharma to PS Shakarpur and made inquiries from him. He was cross-
Sessions Case No. 1339/2016 Page 18/51 ASJ-04/East/KKD Court examined by the ld. Addl.P.P. for the State, however, he only identified accused Hari Kishan, whose photograph was shown to him by police, however, he failed to identify accused Arun Sharma who allegedly stayed in the house of accused Hari Kishan and Deepak Sharma in the night of 08/09.07.2008.
xix) PW19 Sanjay Gaur. He deposed that in the year 2008 at the request of his friend Sunil @ Deva, they went to Bagga Link, Karol Bagh to purchase a motorcycle for Sunil @ Deva. Since Sunil @ Deva was not having any bank account and ration card, hence, at request, PW19 submitted his documents i.e. ration card, bank passbook, voter I Card, income proof to get the Bajaj Pulsar motorcycle of black colour financed. He also handed over 24 signed cheques of Rs. 2200/- or Rs. 2300/- to financer on assurance of Sunil @ Deva that he will make payment of installment amounts. Down payment for motorcycle was made by Sunil @ Deva. However, Sunil @ Deva did not make payment of installment amounts to him. He had no knowledge about the said motorcycle, whether it was in possession of Sunil @ Deva or his nephew Rinku or anybody else. Police got recorded his statement before Ld. M.M., which is Ex. PW19/A. During cross-examination by ld. Addl.P.P. for the State he admitted that the registration no. of said bike was DL-6SV-4926. He also admitted that Sunil @ Deva made down payment of Rs. 25,000/- and total amount which was financed was Rs. 40,000/- and the amount of EMI was of Rs. 2280/- and bike was financed by Mandeep Finance.
Sessions Case No. 1339/2016 Page 19/51 ASJ-04/East/KKD Court xx) PW20 Insp. Rajesh Sinha was Incharge Crime Team, which visited the spot and who got two chance print lifted and photographs of the spot. He proved his entries in visitation register in this regard as Ex. PW20/A and PW20/B. xxi) PW21 Ajay Kumar Singh, Accountant at the Nokia Showroom, situated at R-50, Mangalam Building, Vikas Marg, Delhi. On the day of incident, he was sitting in a cabin at counter outside the showroom. At about 12 noon, he heard noise of bullet firing at gate of Nokia showroom. He further deposed that he saw from cabin, which was made of glass, that Mahesh Kapoor, one of the employee of his company, was lying near gate of the showroom and two boys who were wearing black colour covered helmets and their glass was open, were snatching the bag containing cash from Mahesh Kapoor and dragging Mahesh Kapoor towards Saree shop. Thereafter owner of showroom Pradeep Katyal came outside the showroom and on the asking of PW5 Pradeep Katyal, he called on 100 number. Thereafter, he came outside the showroom and found Mahesh Kapoor lying in injured condition having bullet injury at the corner of the gali Western side of R-50, Mangalam Building. Both the boys, who were snatching the bag from Mahesh Kapoor, ran away. Thereafter, PW21 alongwith other persons took Mahesh Kapoor to Walia Nursing Home where he was declared brought dead. He however stated that he could not identify any of the accused persons present in the court and denied the suggestion that he was intentionally not identifying the assailants as he had been won over by the accused persons.
Sessions Case No. 1339/2016 Page 20/51 ASJ-04/East/KKD Court xxii) PW22 Sunil Sharma. He deposed that he had started a finance business with one Manoj Singh. He also knew Sanjay PW19, who was running business of opticals. During finance business he never financed any vehicle either in the name of Sanjay or himself. He was also cross-examined by ld. Addl.P.P. for the State and denied that he had told his friend Sanjay to finance a motorcycle in his name as PW22 was not having any ID proof. He also denied that on 26.09.2004 the motorcycle was financed through Mandeep Finance address 6/32, WE A Gurudwara Road, Karol Bag and PW22 took delivery of motorcycle no. DL-6SY-4926 and he did not pay any installment to PW19 Sanjay Gaur. He also denied that two months prior to the present incident he sold the said motorcycle to Karan Pehlwan PW8 for Rs. 14000/- through Dr. Deepak. He also denied that on 08.07.2008 in the evening Karan Phelwan PW8 made a telephonic call to him through telephone of brother-in- law of PW-22 by a telephone no. 9250775827 and informed that motorcycle, which was purchased by him from PW22, was taken away by accused Arun and Hari Kishan @ Hari on 07.07.2008 and thereafter they had committed robbery and murder in the area of Shakarpur at Nokia showroom and while committing the robbery, they had fired and murdered a person and at that time the said motorcycle had been left by them at the spot. He further denied that PW8 instructed him to lodge FIR of theft of said motorcycle for which he refused. He also denied that on 09.07.2008 at about 04.30 pm he received a call from accused Hari Kishan @ Hari through mobile phone no. 9250775827 of his brother-in-law, who threatened him that if his name is involved in said case, he will shoot him and PW22 disconnected Sessions Case No. 1339/2016 Page 21/51 ASJ-04/East/KKD Court the call and broke SIM card and threw the same. PW22 also denied that he told to police that he could get arrested Karan Pehlwan. PW-22 also denied that on 08.7.2008 he was called at the park by Karan and at that time he disclosed that accused Arun and Hari were residing in area of Malviya Nagar.
xxiii) PW23 Sh. G.N.Pandey, Secretary DLSA, who recorded statements of Sunil @ Deva u/s 164 Cr.P.C. vide Ex. PW23/A. xxiv) PW24 Const. Ashok Kumar - part of invesigation.
xxv) PW25 ASI Manoj Kumar, part of investigation of accused Yogesh and Arun Sharma.
xxvi) PW26 SI Vinay Yadav was involved in the arrest of accused Yogesh and Arun Sharma in case FIR No. 395/2008 PS Shakarpur and from them two pistols were recovered. He proved disclosure statements of accused Yogesh Ex.PW24/J, disclosure statement of accused Arun Sharma PW24/H, seizure memo of articles recovered from accused Arun Sharma Ex. PW26/A, seizure memo of articles recovered from accused Yogesh Ex. PW26/B, seizure memo pertaining to seizure of articles from accused Yogesh Ex. PW26/C and seizure memo of one empty cartridge Ex. PW30/X. Accused Yogesh and Arun Sharma also disclosed that their associate Hari Kishan will meet them at I.P.Metro Station in a silver Indica car and as such he instructed SI Satender Khari to appropriate steps in this regard.
Sessions Case No. 1339/2016 Page 22/51 ASJ-04/East/KKD Court xxvii) PW27 Dr. S.Lal, who conducted postmortem on dead body of Mahesh Kapoor and submitted that there were eight fire arm entry wound present over body which were antemortem. Three number of bullets were recovered from the body, which were sealed and handed over to IO alongwith sample seal. The details of the injuries are mentioned in the post mortem report Ex. PW27/A from Sl. No. 1 to 9. He opined that death was caused due to shock and hemorrhagic shock due to ante mortem injuries to abdominal organs produced by projectiles of fire arms. He further deposed that injury no. 1,3,4,5,6,7,8 and 9 were produced by projectile of fire arms and injury no. 2 was produced by blunt force impact during scuffle. He further deposed that injury no. 7 and 8 were sufficient to cause death in ordinary course of nature individually and collectively both. Time since death was about 24 hours. He further deposed that three bullets were recovered from the dead body. He further deposed that the clothes of deceased, blood soaked on gauze piece and three bullets were sealed and handed over to the IO alongwith sample seals.
xxviii) PW28 Ct. Rahul Kumar - part of investigation involved in arrest of accused Hari Kishan @ Hari on 08.08.2008. Subsequently, on 19.08.2008 he was involved in arrest of accused Deepak Soni at Rohini Jail, who was formally arrested in the present case.
xxix) PW29 SI Bhanu Kanwaria. He was involved in arrest of accused Yogesh @ Hari Om and Arun Sharma in FIR No. 395/2008 PS Shakarpur and subsequently accused Hari Sessions Case No. 1339/2016 Page 23/51 ASJ-04/East/KKD Court Kishan @ Hari was also produced before him by SI Satender Khari of Special Staff. The case property in case FIR No. 395/2008 was deposited in the malkhana and the TIP intimation memos prepared by Insp. V.K.Dham bore his signatures. He also identified a pistol, four live cartridges and one empty cartridge (test fired) Ex. PW29/A (colly) [also exhibited as Ex. P-2 (colly)], which were recovered from accused Arun Sharma. He also identified a pistol, two live cartridges and one empty cartridge (test fired) Ex. PW29/B (colly) [also exhibited as Ex. P- 1 (colly)], which were recovered from accused Yogesh @ Hari Om. He also identified an extra magazine with four live cartridges Ex. PW29/C (colly) [also exhibited as Ex. P-3(colly)], which were also recovered from accused Yogesh @ Hari Om .
xxx) PW30 ACP V.K.Dham - IO of the case.
xxxi) PW31 Naushad Khan, X-Ray Technician, Aruna Asaf Ali Hospital, proved X-Ray report of deceased Mahesh Kapoor as Ex. PW31/A and the X-Ray plates Ex. PW31/B. xxxii)PW32 Insp. Mukesh Kumar, draftsman, deposed that on 19.09.2008 he was working as Draftsman and on that day he alongwith Insp. V.K.Dham visited spot i.e. Manglam Building, R-50, Shakarpur, Delhi, where one witness Ajay met them and at their instance, he prepared rough notes and thereafter prepared scaled site plan Ex. PW32/A. xxxiii) PW33 HC Ravinder deposed that on 03.10.2008 on the directions of IO, he had taken three sealed parcels marked E, Sessions Case No. 1339/2016 Page 24/51 ASJ-04/East/KKD Court E1 and E2, sample seal, RC No. 70/21/08 and deposed the same in FSL Rohini and its receipt was deposited with MHC(M).
xxxiv) PW 34 Puneet Puri, Assistant Director (Ballistics), FSL, Rohini, that he examined exhibits of his case and given his detailed report no. FSL 2008/F/3866 dated 10.07.2012 Ex.
PW34/A. xxxv) PW35 HC Rohtash Singh deposed that on 16.08.2008 in evening time, he alongwith SI Jas Mohinder,
Const. Prem and other staff of Special Staff, at the instance of secret informer, apprehended accused Deepak @ Sonu from Kanjhawala Chowk and on his personal search one loaded pistol having magazine containing four live cartridges was recovered from right side dub of his pant, which were converted in a cloth pullanda and seized vide seizure memo Ex. PW35/B. Accused Deepak @ Sonu was arrested in case FIR No. 115/08, PS Kanjhawala, u/s 25 Arms Act and he also gave disclosure statement Ex. PW35/A. He had informed in this respect to Insp. V.K.Dham, who collected documents from him.
xxxvi) PW36 SI Surender Pal Hudda - first IO of the case and after registration of FIR who was part of investigation with IO/Insp. V.K.Dham.
xxxvii) PW37 SI Jasmohinder Chaudhary, who was involved in the arrest of the accused Deepak Soni @ Bhola by the team of Special Staff in case bearing FIR No. 115/08, PS Kanjhawala, u/s 25 Arms Act.
Sessions Case No. 1339/2016 Page 25/51 ASJ-04/East/KKD Court xxxviii) PW38 HC Deepak who was part of investigation. PW8 had given three fax slips and two photocopies of fax to the IO in presence of PW38 HC Deepak which was seized vide seizure memo Ex. PW8/A. PW8 faxed three papers from Bulandshahr Mark-A-1 to A-3 and fax slips are Mark PW38/A-1, A-2 and A-3.
xxxix) PW 39 ASI Raj Mohan - MHC(M). xl) PW40 ASI Karan Singh, who deposed that on
08.07.2008 he was working a motorcycle rider and on that day three envelops stated to be containing copy of FIR of this case, were handed over to him by Duty Officer and he delivered the same to Ld. M.M. of PS Shakarpur, Joint CP, New Delhi Range and DCP East.
xli) PW41 Narender Singh deposed that record of deceased Mahesh Kapoor s/o Sh. K.L.Kapoor was noted down in radiology register of Aruna Asaf Ali Govt. Hospital at serial no. 509 dated 09.07.2008 Ex. PW41/A.
13. During trial, at the request of Ld. Addl.P.P. for the State, vide orders dated 23.08.2011, 10.01.2018 and 20.02.2018, PWs Const. Naresh, SI Satender Khari and Const. Prem Singh respectively were dropped from the list of witnesses.
14. At the stage of final arguments, ld. Addl.P.P. for the State moved an application u/s 311 Cr.P.C. to recall PW5 Pradeep Sessions Case No. 1339/2016 Page 26/51 ASJ-04/East/KKD Court Katyal by stating that the said witness was turned hostile on 08.09.2009 but inadvertently he could not be cross-examined by State. The application was allowed, however, despite opportunities granted, the prosecution was unable to produce the said witness before the court and hence, opportunity to examine the said witness was closed.
Statement of accused persons :
15. After conclusion of prosecution evidence, statements of all the accused person were recorded under Section 313 Cr.P.C wherein they denied the correctness of all the incriminating circumstances appearing in the evidence against them and stated that they were innocent and were falsely implicated in this case by the police to solve a blind case by creating false evidence and recording the statement of witnesses as per their wish as they had previous involvement. All the accused persons did not opt to lead evidence in their defence. However, later an application was filed by the accused Yogesh @ Hari Om and Arun Sharma u/s 311 Cr.P.C. and accordingly DW1 Neel Kumar Kujur, Ahlmad, was examined, who proved the judgment dated 31.07.2018 passed by Sh. Anil Kumar Sisodia, the then ld. ASJ-04 (East), in case FIR No. 395/2008 of PS Shakapur, u/s 186/353/307/411/34 IPC as Ex. DW1/A, whereby accused Yogesh @ Hariom and Arun Sharma were acquitted. Thereafter DE was closed.
Arguments :
16. It is contended by Ld. Counsel for the accused persons that there is no evidence on record to bring home the guilt against the accused persons. It is stated that none of the eye Sessions Case No. 1339/2016 Page 27/51 ASJ-04/East/KKD Court witnesses have identified the accused persons as the assailants in the present case. No recoveries have been effected from the accused persons pursuant to their disclosure statements in accordance of Section 27 of the Indian Evidence Act. Even otherwise there is no evidence on record to connect the accused persons with the offence in issue. It is stated that the accused persons were not arrested at the spot and they were arrested in other cases and police has falsely implicated the accused persons to solve a blind murder case. Other witnesses are police officials and are only formal in nature. In these circumstances, the guilt of the accused persons is not established on record. It is accordingly stated that the accused persons are liable to be acquitted of the offence they are charged with.
17. On the other hand, it is contended by Ld. Addl.P.P. for the State that PW5, owner of the mobile phone showroom Pradeep Katyal as well as PW17 Sukhdev Singh, who was guard at the showroom and were eye witnesses to the incident, have supported the prosecution version before the court. The other public witnesses i.e. PW9 Pawan, owner of the motorcycle from whom the motorcycle was robbed by the accused persons on the point of pistol has also essentially supported the prosecution case. Similarly PW10 Anil Kumar and PW21 Ajay Kumar Singh have also supported the prosecution version on all material aspects. It is urged that these public witnesses have not identified the accused persons before the court as they have been won over by them. It is also stated that accused Arun Kumar and Yogesh @ Hariom had refused TIP, which may be taken into account. It is stated that as per the FSL result Ex. PW34/A the bullets Sessions Case No. 1339/2016 Page 28/51 ASJ-04/East/KKD Court recovered from the body of the deceased and the empty cartridge found at the spot were fired from the pistols recovered from the accused persons namely Arun Sharma and Yogesh in FIR No. 395/2008. It is stated that in their disclosure statement the accused persons had disclosed about their involvement in the present case and the offending weapon of offence i.e. the pistols were recovered from the accused persons. It is stated that the said circumstance is germane to the issue involved in the present case and hence, the prosecution has clearly proven the guilt of the accused persons beyond reasonable doubt and therefore the accused persons are liable to be held guilty and convicted for the offences they are charged with.
18. I have heard ld. Counsel for the parties and perused the record.
19. As per the prosecution version, PW5 Pradeep Katyal and PW17 Sukhdev Singh were the eye witnesses of the incident.
However, during recording of their testimony PW5 resiled from his statement given to the police u/s 161 Cr.P.C. Ex. PW5/D1 and stated that when he came out of his showroom, he found Mahesh Kapoor lying on the ground. He had seen the assailants while they were dragging and snatching the bag from deceased Mahesh Kapoor and when he reached near Mahesh Kapoor, the two persons had already left with the bag from there after giving bullet shot to him. He did not see the two persons as they were wearing helmets and because he was at a distance of 20-25 feet from them. He also stated that he had not seen any weapon in the hands of the assailants. He also deposed that he had not seen the Sessions Case No. 1339/2016 Page 29/51 ASJ-04/East/KKD Court faces of the assailants. Accordingly, PW5 though supported the factum of snatching of bag containing money from deceased Mahesh Kapoor, however, he did not support the prosecution version as regards the identity of the accused persons and he also stated that he could not see any weapon in the hands of the assailants. He was not cross-examined by the State but was cross-examined by the Ld. Counsel for the accused persons.
20. From a perusal of testimony of the complainant PW17 Sukhdev Singh, who was working as a guard at mobile showroom, it emerges that he did not support his entire version given in the complaint. In his examination-in-chief he stated that he heard the sound of gun shots and he did not see any person shooting anyone. In his cross-examination by ld. Addl.P.P. for the State he stated that when he went inside the showroom the two boys were firing. On a specific question being put to him that on one hand he had deposed that he had only heard the sound of gun shot and did not see anyone firing whereas on the other hand he had deposed that when he went inside the showroom the two boys were firing, he replied that he had only heard gun shots and had not seen anyone firing those shots. He also stated that he did not see the mode of transport by which those boys came. He further denied that the motorcycle of the accused persons fell down and both of them ran away after leaving the motorcycle. He also could not identify the motorcycle no. DL-6SV-4926 in Ex. PW13/A2 to A5 as recovered from the spot. PW17 did not identify the accused Yogesh and Arun Sharma before the court as those persons, who came there on a motorcycle and snatched money bag from the hand of Mahesh Kapoor and fired at him.
Sessions Case No. 1339/2016 Page 30/51 ASJ-04/East/KKD Court Accordingly, despite pointing of the accused Yogesh and Arun Sharma to PW17, he failed to identify them. PW17 also failed to identify motorcycle bearing no. DL-6SV-4926 as the motorcycle used by accused Yogesh and Arun Sharma at the time of incident.
21. PW9 Pawan supported the prosecution version to the extent that two persons having pistols in their hands came to him and asked him to leave his bike bearing registration no. DL-7S AQ-5217. He left his bike and ran away and after five minutes he came back and found his bike lying on the ground. Later he got his bike released. However, PW9 also turned hostile as regards the identity of the accused persons and deposed that he could not identify those two persons, if shown to him, as they were wearing helmets and he could not see their faces. He denied that he was deliberately not identifying the accused persons to save them as he had been won over by them.
22. PW10 Anil Kumar, had a chemist shop at Shakarpur, Vikas Marg, Delhi. He supported the prosecution version to the extent that when he was standing inside the shop he heard a noise 'Pakro - Pakro'. When he came outside, he saw two boys running in the gali. However, he did not support the prosecution version as regards his remaining statement given to the police u/s 161 Cr.P.C. Mark-X2 with which he was confronted. He could not identify the accused persons and stated that they were wearing helmets with closed visors. He could not identify accused Yogesh @ Hariom and Arun Sharma present before the court. Hence, PW10 was also hostile on the point of identity also.
Sessions Case No. 1339/2016 Page 31/51 ASJ-04/East/KKD Court
23. Accordingly, none of the witnesses present at the spot at the time of incident have identified accused Yogesh @ Hariom and Arun Sharma as the two persons, who had given gun shots to deceased Mahesh at the time of incident and had robbed the money bag from him. They stated that those two persons were wearing helmet with visors. None of the witnesses identified the motorcycle used by the accused persons at the time of incident bearing registration no. DL-6SV-4926, photographs of which are Ex. PW13/A2 to A5.
24. Perusal of the testimony of PW8 reveals that PW8 Karan denied that he had given his motorcycle bearing RC No. DL-6SV-4926 Pulsur of black colour to accused Yogesh and Arun or that it was purchased by him from PW22 Sunil Deva in April 2008. The said motorcycle was allegedly used by the accused persons Yogesh @ Hariom and Arun Sharma at the time of incident and was found lying at the spot. PW8 denied that he had faxed three papers Mark A-1 to A3 from the Bulandshahr Court to the Commissioner of Delhi Police wherein he disclosed the entire incident or that the IO had seized the fax slip (Mark-X) from him though he admitted his signatures on the seizure memo Ex. PW8/A while stating that his signatures were obtained on a blank paper by one Pradeep, brother of PW22.
25. PW19 Sanjay in this regard stated that Sunil Deva had got financed a motorcycle through him as he wanted to purchase a motorcycle for his nephew Rinku. Since Sunil Deva did not have the requisite documents, PW19 Sanjay had got the Sessions Case No. 1339/2016 Page 32/51 ASJ-04/East/KKD Court bike financed in his name and the down payment of the motorcycle was made by Sunil Deva. However, PW19 had signed all the cheques, which were given to the financer. Subsequently Sunil Deva took the motorcycle from the shop and the said motorcycle was a Bajaj Pulsur Black colour motorcycle having registration no. DL-6SV-4926 and the bike was financed from Mandeep Finance. He also stated that after some time Sunil Deva did not pay installments of the bike and the agent of the finance company started harassing him to make payment of the installments due to which he changed his residence. He stated that he did not meet Sunil @ Deva after December 2004. He had no knowledge in whose possession the said motorcycle was.
26. In this regard PW22 Sunil Sharma deposed that he knew Sanjay PW19, however, during his business of finance he never financed any vehicle either in the name of Sanjay or himself. He denied that he had requested his friend Sanjay to finance a motorcycle in his name as PW22 did not have the requisite documents. He denied that motorcycle bearing no. DL- 6SV-4926 was got financed through Mandeep Finance or that he took delivery of the said motorcycle. He further denied that he had sold the said motorcycle to Karan PW8. He further denied that on 08.07.2008 he received the call from PW8 Karan, who told him that the said motorcycle was taken away by accused Arun and Hari Kishan on 07.07.2008 and that the same was used for committing robbery and murder at Nokia showroom in the area of Shakarpur or that the said motorcycle had been left by them at the spot. PW22 also denied that PW8 Karan instructed him to lodge and FIR of theft of motorcycle which PW22 Sessions Case No. 1339/2016 Page 33/51 ASJ-04/East/KKD Court refused. In this regard PW8 also denied that he had given the motorcycle no. DL-6SV-4926, which was purchased by him from Sunil Deva in April, 2008, to accused Yogesh, Arun and Hari Kishan.
27. Accordingly, PW8 Karan has denied handing over the motorcycle used at the time of commission of offence bearing registration no. DL-6SV-4926 to accused Arun, Yogesh and Hari Kishan. The motorcycle was initially taken on finance in the name of PW19 Sanjay, who deposed that he had got the motorcycle financed on behalf of PW22 Sunil Deva, who had also taken the possession of the motorcycle. PW22 Sunil Deva denied that he had got any motorcycle financed through PW19 Sanjay. It is not the case of the prosecution that the offence was committed by either PW8 Karan, or PW19 Sanjay Gaur, in whose name the motorcycle was taken on finance or by PW22 Sunil Deva. In these circumstances, the prosecution has not been able to establish that the motorcycle in issue i.e. Black colour Bajaj Pulsur motorcycle bearing registration no. DL-6SV- 4926 was used by the accused persons namely Yogesh and Arun Sharma to commit the offence in issue and hence no connecting link has been established between the said motorcycle and the accused persons.
28. Additionally, three chance prints were lifted by the finger print proficient of Crime Team from black Pulsar motorcycle bearing registration no. DL-6SV-4926, which was lying at the spot and seized by IO vide seizure memo Ex. PW15/C. IO sent the an application for comparision of the finger Sessions Case No. 1339/2016 Page 34/51 ASJ-04/East/KKD Court prints of accused Yogesh @ Hariom and Arun Sharma to the Incharge Finger Print Bureau for comparison with three chance prints lifted from black colour Pulsar motorcycle no. DL-6SV- 4926 vide his application Ex. PW30/E. As per the report of the Director Finger Print Bureau, one chance print found on the motorcycle was not identical with the finger/palm prints of the accused persons; second chance print was partial and hence, it could not be searched in the record of the Bureau and the third chance print was partial and smudged and did not disclose sufficient number of ridge details in their relative positions for comparison, hence, it was unfit for comparison and search. Hence, the report of the Finger Print Bureau was not incriminating to the accused Yogesh @ Hariom and Arun Sharma.
29. It is also noted that in the initial statement given by the complainant PW17 Sukhdev Singh to the police Ex. PW17/A, the complainant has detailed the manner in which the deceased Mahesh Kapoor was robbed and shot dead by two accused persons in furtherance of their common intention with pistols.
30. The postmortem report Ex.PW27/A reveals that there were eight fire arm entry wound present over body which were antemortem. PW27 Dr. S.Lal opined that death was caused due to shock and hemorrhagic shock due to ante mortem injuries to abdominal organs produced by projectiles of fire arms. He further deposed that injury no. 1,3,4 ,5,6,7,8 and 9 were produced by projectile of fire arms and injury no. 2 was produced by blunt Sessions Case No. 1339/2016 Page 35/51 ASJ-04/East/KKD Court force impact during scuffle. He further deposed that injury no. 7 and 8 were sufficient to cause death in ordinary course of nature individually and collectively both. Time since death was about 24 hours. PW27 further deposed that three bullets were recovered from the dead body. The clothes of deceased, blood soaked on gauze piece and three bullets were sealed and handed over to the IO alongwith sample seals.
31. Accordingly, the medical evidence including the postmortem report corroborate the version of the prosecution witnesses including PW5, PW17, PW21 that the two persons had given bullet shots to the deceased. However, none of them stated that bullet shots were given by the accused persons in their presence. PW9 and PW10 stated that both persons were having revolvers in their hands, however, they had not seen the incident.
32. However, as discussed, the above witnesses failed to identify the accused persons before the court as the assailants, despite their cross-examination by the ld. Addl.P.P. for the State regarding identity of the accused persons.
33. It is also relevant to note that the accused Arun Sharma and Yogesh @ Hariom were arrested by PW26 SI Vinay Yadav on 07.08.2008, in FIR No. 395/2008, PS Shakarpur, when he was posted at Special Staff, East Delhi upon secret infromation that accused Yogesh @ Hariom and Arun Sharma, who used to commit robbery would come from Gandhi Nagar side on Pusta Road and proceed towards Noida via Shakarpur on black colour TVS Apache motorcycle. On the instructions of Sessions Case No. 1339/2016 Page 36/51 ASJ-04/East/KKD Court Inspector Rajesh Kumar, two teams were constituted, one team was headed by PW26 SI Vinay Yadav and another team was headed by PW25 ASI Manoj Kumar. Subsequently at about 4.45 p.m a black colour motorcycle came from Gandhi Nagar side on which Yogesh @ Hariom and Arun Sharma were found sitting. Accused Yogesh and Arun Sharma were identified by secret informer when they were passing from near SDM office on the aforesaid motorcycle. Later PW25 ASI Manoj overtook the motorcycle on which Yogesh @ Hariom and Arun Sharma were sitting by his Toyota Innova and stopped both the accused persons. Police officials got down from the vehicle and cornered Yogesh @ Hariom and Arun Sharma on their motorcycle. At that time accused Yogesh @ Hariom took out a pistol from the right dub of his pant and fired towards Ct. Sandeep who was approaching him and accused Arun Sharma and somehow Ct. Sandeep saved himself. PW 26 SI Vinay Yadav and PW 25 ASI Manoj Kumar that Ct. Yashbir took the pistol from Yogesh @ Hariom. In the meanwhile the driver of the motorcycle i.e. accused Arun Sharma also took out a pistol, however, he was caught by PW25 and PW26 and they took pistol from his hand. It is deposed by PW26 SI Vinay Yadav that both the pistols alongwith cartridges and one magazine were taken into police possession in plastic jars after sealing with the seal of VY and proved the same pertaining to co-accused Arun Sharma as Ex. PW26/A and seizure memo of pistol, cartridges with magazines as Ex.PW26/B. Four live cartridges and magazine was recovered from possession of accused Yogesh was seized vide seizure memo Ex. PW26/C. PW26 seized the motorcycle TVS Apache bearing registration no. DL 4S 3776 (Ex. P-5) at the spot in case Sessions Case No. 1339/2016 Page 37/51 ASJ-04/East/KKD Court FIR no. 395/2008 PS Shakar Pur which was driven by accused Arun Sharma and accused Yogesh was sitting as pillion rider vide seizure memo Ex.PW26/D. PW26 identified the case property recovered from possession of accused Arun Sharma i.e. one pistol along with four live cartridges and one empty cartridge (test fired) as Ex.P-2 (colly).
34. PW26 deposed that with respect to the above incident FIR No. 395/2008 dated 07.08.2008 was registered at PS Shakarpur, u/s 186/353/307/411/482/34 IPC. A pistol and four live cartridges and one empty cartridge (test fired) Ex. PW29/A (colly) [also exhibited as Ex. P-2 (colly)] were recovered from accused Arun Sharma. A pistol and two live cartridges and one empty cartridge (test fired) Ex. PW29/B (colly) [also exhibited as Ex. P-1 (colly)] were recovered from accused Yogesh @ Hai Om. An extra magazine with four live cartridges were also recovered from accused Yogesh @ Hari Om Ex. PW29/C (colly) [also exhibited as Ex. P-3(colly)]. PW29 SI Bhanu Kanwaria produced accused Arun and Yogesh before IO/PW30, who arrested them in the present case vide arrest memo Ex. PW24/A and Ex. PW24/B respectively.
35. In the above FIR No. 395/2008, PS Shakarpur, u/s 186/353/307/411/482/34 IPC, the FIR was registered on 07.08.2008 and charge sheet was filed before Ld. M.M. Charges were framed against accused Yogesh @ Hari Om and Arun Sharma u/s 186/353/307/34 IPC and 25/27/54/59 of Arms Act. Vide judgment dated 31.07.2018 ld. Predecessor of this court, acquitted the accused persons of the offences u/s 186/353/307/34 Sessions Case No. 1339/2016 Page 38/51 ASJ-04/East/KKD Court IPC & 25/27 of Arms Act. Ld. Predecessor in the judgment dated 31.07.2018 Ex. DW1/A, observed that the contradictions in the testimonies of the witnesses makes the entire story of prosecution unreliable and creats a serious doubt if at all the accused persons were apprehened in the manner as alleged by the prosecution.
36. As discussed, the accused persons were arrested by IO/Insp. V.K.Dham in the present case. On 03.10.2008 on the directions of IO, PW33 HC Ravinder took three sealed parcels marked E,E1 and E2, sample seal, vide RC No. 70/21/08 and deposited the same in FSL Rohini.
37. The FSL report was prepared by PW34 Puneet Puri, Assistant Director (Ballistics), FSL, Rohini, who gave his detailed report no. FSL 2008/F/3866 dated 10.07.2012 Ex. PW34/A, which is as under :
"3. RESULTS OF EXAMINATION/OPINION:
(1) The 9mm cartridge case marked exhibit
'EC1' is a fired empty cartridge.
(2) The deformed bullet marked exhibit 'EB1'
correspond to the bullet of 9 mm cartridge.
(3) The bullets marked exhibits 'EB2' to 'EB4'
corresponds to the bullet of 7.65mm cartridge.
(4) Two 9 mm cartridges from the laboratory stock were test fired through the improvised pistol 9 mm caliber already marked exhibit 'F1' in case FSL no. 2008/F-3812, FIR No. 395/08 P.S.Shaka Pur, the test fired cartridge cases were makred as Sessions Case No. 1339/2016 Page 39/51 ASJ-04/East/KKD Court 'TC1', 'TC2' and the two recovered test fired bullets were marked as 'TB1' and 'TB2'.
(5) Two 7.65 mm cartridges from the laboratory stock were test fired through the improvised pistol 7.65mm bore already marked exhibit 'F2' in case FSL no. 2008/F-3812, FIR No. 395/08 P.S.Shaka Pur, the test fired cartridge cases were makred as 'TC3', 'TC4' and the two recovered test fired bullets were marked as 'TB3' and 'TB4'.
(6) The individual characteristics of firing pin marks and breach face marks present on evidence fired cartridge case marked exhibit 'EC1' and on test fired cartridge cases marked as 'TC1' & 'TC2' were examined & compared under Comparison Microscope Model Leica DMC and were found identical. Hence, the evidence fired cartridge case marked exhibit 'EC1' has been fired through the improvised pistol 9mm caliber already marked exhibit 'F1' in case FSL No. 2008/F-3812, FIR No. 395/08 P.S.Shakar Pur. (7) The individual characteristics of striations (rifling marks) present on evidence deformed bullet marked exhibit 'EB1' and on test fired bullets marked as 'TB1' & 'TB2' were examined and compared under Comparison Microscope Model Leica DMC and were found identical.
Hence, the evidence deformed bullet marked exhibit 'EB1' has been discharged through the Sessions Case No. 1339/2016 Page 40/51 ASJ-04/East/KKD Court improvised pistol 9mm caliber already marked exhibit 'F1' in case FSL No. 2008/F-3812, FIR No. 395/08 P.S.Shakar Pur.
(8) The individual characteristics of striations present on evidence bullets marked exhibit 'EB2', 'EB3' & 'EB4' and on test fired bullets marked as 'TB3' & 'TB4' were examined & compared under Comparison Microscope Model Leica DMC and were found identical. Hence, the evidence bullets marked exhibit 'EB2', 'EB3' & 'EB4' have been discharged through the improvised pistol 7.65mm bore already marked exhibit 'F2' in case FSL No. 2008/F-3812, FIR No. 395/08 P.S.Shakar Pur.
(9) The holes marked 'H1' to 'H7', 'H8A', 'H8B', 'H8C', 'H9A', 'H9B', 'H10' to 'H13' on shirt marked exhibit 'C1', 'H14' to ;H18' on the baniyan marked exhibit 'C2', 'H19' to 'H22' on the pant marked exhibit 'C3', 'H23' and 'H24' on the underwear marked exhibit 'C4' were analysed for gun shot residue (GSR) particles on Atomic Absorption Sectrophotometer (AAS). The gunshot residue particles were detected around the hole marked 'H10' on the shirt marked exhibit 'C1' and no opinion can be given regarding the holes marked 'H1' to 'H7', 'H8A', 'H8B', 'H8C', 'H9A', 'H9B', 'H11' to 'H13' on shirt marked exhibit 'C1', 'H14' to 'H18' on baniyan marked exhibit 'C2', 'H19' to 'H22' on the pant marked Sessions Case No. 1339/2016 Page 41/51 ASJ-04/East/KKD Court exhibit 'C3', 'H23' and 'H24' on the underwear marked exhibit 'C4' due to insufficient data. (10) The exhibits 'EC1' and 'EB1' to 'EB4' are ammunition as defined in the Arms Act, 1959."
38. Accordingly, as per the FSL result Ex. PW34/A, three bullets which were retrieved from the body of the deceased had been discharged through the improvised pistol 7.65 mm bore Ex. P-2 which was recovered from accused Arun Sharma vide seizure memo Ex. PW26/A.
39. Additionally, one deformed bullet was discharged and the empty cartridge case, which were recovered from the spot, had been fired through the improvised pistol of 9 mm caliber Ex. P-1 that was recovered from accused Yogesh @ Hariom vide seizure memo Ex. PW26/B.
40. It is contended by ld. Counsel for the accused persons that since the accused Yogesh @ Hariom and Arun Sharma already stand acquitted in FIR No. 395/2008, PS Shakarpur, for the offences u/s 186/353/307/34 IPC & 25/27 of Arms Act, therefore, the prosecution case with regard to recovery and possession of the pistols from the accused persons u/s 25 of the Arms Act and the consequent user of the pistols by the accused persons must fail.
41. In this regard it would be worthwhile to advert to the principle of law regarding issue estoppel enunciated by the Sessions Case No. 1339/2016 Page 42/51 ASJ-04/East/KKD Court Hon'ble Supreme Court in its various decisions, which are discussed herein below :
In State of Andhra Pradesh v. Kokkiliagaba Meerayya, 1969 (1) SCC 161, the Hon'ble Supreme Court discussed the plea of autrefois acquit and autrefois convict well as the principle of issue estoppel and its applicabilityin criminal law and made the following observations :
"7.Section 403 of the Code of Criminal Procedure enacts the rule of autrefois acquit and autrefois convict applicable to criminal trials. The rule is that so long as an order of acquittal or conviction at a trial held by a Court of competent jurisdiction of a person charged with committing an offence stands, that person cannot again be tried on the same facts for the offence for which he was tried or for any other offence arising therefrom. But the rule of issue estoppel in criminal trials evolved by the High Court of Australia and approved by the Judicial Committee has been applied to criminal trials in India, apart from the terms of Section 403 of the Code of Criminal Procedure.
8. Lord MacDermott in Sambasivam v. Public Prosecutor, Federation of Malaya [LR (1950) AC 458] observed at p. 479:
"The effect of a verdict of acquittal pronounced by a competent court on a lawful charge and after a lawful trial is not completely stated by saying that the person acquitted cannot be tried again for the same offence. To that it must be added that the verdict is binding and conclusive in all subsequent proceedings between the parties to the adjudication. The maxim "Res judicata pro veritate accipitur" is no less applicable to criminal than to civil proceedings. Here, the appellant having been acquitted at the first trial on the charge of having ammunition in his possession, the prosecution was bound to accept the correctness of that verdict and was precluded from taking any step to challenge it at the second trial. And the appellant was no less entitled to rely on his acquittal insofar as it might be relevant in his defence. That it was not conclusive of his innocence on the fire-arm charge is plain, but it undoubtedly reduced in some degree the weight of the case against him, for at the first trial the facts proved in support of one charge were clearly relevant to the other having regard to the circumstances in which the ammunition and revolver were found and the fact that they fitted each other."
Sessions Case No. 1339/2016 Page 43/51 ASJ-04/East/KKD Court
9. In Sambasivam case [LR (1950) AC 458] the appellant was tried for the offence of being in possession of ammunition in violation of Regulation 4(1)(b) of the Emergency (Criminal Trials) Regulations, 1948. He was acquitted of the charge. Later he was tried for the offence of carrying a fire-arm contrary to Regulation 4(1)(a) of the Emergency Regulations and was convicted by the Supreme Court of the Federation of Malaya. An appeal was carried to the Judicial Committee and the legality of the conviction was challenged on the grounds, inter alia, that so long as the order of acquittal in respect of the carrying of ammunition stood, the facts proved in support of that charge were in the circumstances of the case clearly relevant to the second charge, and the appellant was entitled to rely upon the acquittal insofar as it was relevant to his defence. The plea so raised was accepted by the Judicial Committee.
10. In Pritam Singh v. State of Punjab [AIR 1956 SC 415] this court held that where a person has been tried under Section 19(f) of the Arms Act and is acquitted because the prosecution has failed to establish the possession of a revolver by the accused as alleged, in a subsequent trial of the offence of murder, where the possession of the revolver was a fact in issue which had to be established, the prosecution could not ignore the finding at the previous trial.
11. In several later judgments of this court the principle of issue estoppel has received approval:Manipur Administration v. Thokcham Bira Singh; [(1964) 7 SCR 123] Banwari Godara v. State of Rajasthan [ Cr A No. 141 of 1960, decided on February 7, 1961] ;Lalta v. State of U.P.[ Cr A No. 185 of 1966, decided on October 25, 1968]. It was also accepted in Assistant Collector of Customs and another v. L.R. Malwani [ Cr As Nos. 15 and 35 of 1967, decided on October 16, 1968] It is too late now to make a departure from the rule accepted by this court. In the American courts also the rule of issue estoppel has received approval: Sealfron v. United States. [(1948) 332 US Rep 575]
13. But it is necessary to notice the true basis of the rule. Dixon, J., in King v. Wilkes, [77 CLR 511] observed at pp. 518-519.
"... it appears to me that there is nothing wrong in the view that there is an issue estoppel, if it appears by record of itself or as explained by proper evidence, that the same point was determined in favour of a prisoner in a previous criminal trial which is brought in issue on a second criminal trial of the same prisoner. ... There must be a prior proceeding determined against the Crown necessarily involving an issue which again arises in a Sessions Case No. 1339/2016 Page 44/51 ASJ-04/East/KKD Court subsequent proceeding by the Crown against the same prisoner. The allegation of the Crown in the subsequent proceeding must itself be inconsistent with the acquittal of the prisoner in the previous proceeding. But if such a condition of affairs arises, I see no reason why the ordinary rules of issue estoppel should not apply. Such rules are not to be confused with those of res judicata, which in criminal proceedings are expressed in the pleas of autrefois acquit and autrefois convict. They are pleas which are concerned with the judicial determination of an alleged criminal liability and in the case of conviction with the substitution of a new liability. Issue estoppel is concerned with the judicial establishment of a proposition of law or fact between parties. It depends upon well- known doctrines which control the re-litigation of issues which are settled by prior litigation."
42. In Karnam Bala Rama Krishna Murty v. Udaya Laxmi & Anr., 2019 SCC online AP 140, the Hon'ble High Court of Andhra Pradesh also discussed in detail the principle of issue estoppel while considering the decisions of the Hon'ble Syupreme Court in that regard including the Sambasivam case (Supra), Pritam Singh case (Supra) and further made the following observations :
"43. Learned counsel for the petitioner has drawn attention of this Court to the judgment of Apex Court in Manipur Administration, Manipur v. Thokchom Bira Singh (referred supra) and Banwari Godara v. The State of Rajasthan; Lalta v. The State of U.P 22 succinctly held that the Principle of Issue Estoppel can be applied even to criminal trial. The question raised for decision in Pritam Singh v. The State of Punjab (referred supra) however was different and was whether where an issue of fact has been tried by a competent court on a former occasion and a finding has been reached in favour of an accused, such a finding would constitute an estoppel or res judicata against the prosecution not as a bar to the trial and conviction of the accused for a different or distinct offence but as precluding the receptionof evidence to disturb that finding of fact when the accused is tried subsequently even for a different offence which might be permitted by the terms of Section 403 (2). It would not be correct to say that the principle underlying in Sambasivan's case was dissented from in R. v. Connelly23. Besides, it should be Sessions Case No. 1339/2016 Page 45/51 ASJ-04/East/KKD Court pointed out that the principle underlying the decision in Pritam Singh v. The State of Punjab (referred supra) did come up for consideration before the Apex Court on several occasions, but it was never dissented from though in some of them it was distinguished on facts. Judgments in Pritam Singh v. Stateof Punjab (referred supra), R. v. Connelly (referred supra) and Sambasivam v. Public Prosecutor, Federation of Malaya (referred supra) were relied on. Finally, the Court concluded that "the rule of issue-estoppel does not prevent the trial of an offence as does autre fois acquit but only precludes evidence being led to prove a fact in issue as regards which evidence had already been led and a specific finding recorded at an earlier criminal trial before a court of competent jurisdiction". The rule of issue-estoppel is not the same as the plea of double jeopardy or autre fois acquit is also clear from the statement of the law by Lord Mac Dermott in Sambasivam v. Public Prosecutor, Federation of Malaya (referred supra). It is clear that Section 403 of the Criminal Procedure Code does not preclude the applicability of this rule of issue-estoppel. The rule being one which is in accord with sound principle and supported by high authority and there being a decision of this court in Pritam Singh v. The State of Punjab(referred supra) which has accepted it as a proper one to be adopted, there is no reason for discarding it."
"45. Learned counsel for the petitioner brought to the notice of this Court the other judgment of the Apex Court in Ashwini Kumar v. Ashu (referred supra), wherein, an identical issue came up for consideration and the Apex Court by referring the judgment in Sangeetaben Mahendrabhai Patel v. State of Gujarat (referred supra ) held that, the Rule regarding Issue Estoppel relates to admissibility of evidence in subsequent proceedings which is designed to up-set a finding of fact recorded on the previous occasion and mandates that the finding so rendered on earlier occasion must operate as issue estoppel in subsequent proceedings. It makes it impermissible to lead any such evidence at a subsequent stage or occasion. The attempt on part of learned counsel is just the opposite. He seeks to rely on the finding at a subsequent stage to up-set a finding of fact recorded on a previous occasion. The law on the point was succinctly stated by the Supreme Court in Sangeetaben Mahendrabhai Patel v. State of Gujarat (referred supra) in following words:
"23. This Court has time and again explained the principle of issue estoppel in a criminal trial observing that where an issue of fact has been tried by a competent Sessions Case No. 1339/2016 Page 46/51 ASJ-04/East/KKD Court court on an earlier occasion and a finding has been recorded in favour the accused, such a finding would constitute an estoppel or res judicata against the prosecution, not as a bar to the trial and conviction the accused for a different or distinct offence, but as precluding the acceptance/reception evidence to disturb the finding of fact when the accused is tried subsequently for a different offence. This rule is distinct from the doctrine of double jeopardy as it does not prevent the trial of any offence but only precludes the evidence being led to prove a fact in issue as regards which evidence has already been led and a specific finding has been recorded at an earlier criminal trial. Thus, the rule relates only to the admissibility of evidence which is designed to upset a finding of fact recorded by a competent court in a previous trial on a factual issue..."
46. Based on the principle referred supra, the Court refused to apply the principle issue estoppel.
47. In view the judgment in Sangeetaben Mahendrabhai Patel v. State Gujarat (referred supra) and other judgments placed on record, it creates a bar on admissibility of evidence, but does not debar the trial of the case before a court on account of trial of the accused for the same offence earlier and got acquittal. Thus, it is abundantly clear from the catena of decisions of the Apex Court, issue Etoppel precludes the party to adduce evidence in a subsequent trial when the same witnesses were examined in the earlier trial in a different case, but for the same offence on the same facts, as such, issue estoppel can be said to be a principle of preclusion, debarring any witness of giving different statements before a court in a subsequent trial for the statement already recorded in the pre-trial or earlier trail.
48.There is a marked difference between the principle of Double Jeopardy/Autrefois acquit and issue estoppel. The Doctrine of Double Jeopardy is a complete bar to try the accused for the same offence and the parties must be the same. The principle of Double Jeopardy can be said to be identical to the Principle of Resjudicata, whereas, the Principle of Issue Estoppel only precludes a party to adduce evidence before the Court on a particular issue which was already decided by the Court in earlier case, hence, the Doctrine of Issue Estoppel, at best, bars the admissibility of evidence of a particular witness who was examined earlier and on the basis of such evidence, the Court recorded a finding of fact while acquitting the petitioner/accused not guilty. But, it will not bar the trial of the accused." (emphasis supplied) Sessions Case No. 1339/2016 Page 47/51 ASJ-04/East/KKD Court
43. It may also be noted as discussed hereinabove that in Pritam Singh v. State of UP, AIR 1956, Supreme Court 415, the appellant had been acquitted of the charge u/s 19(f) Arms Act for possession of a revolver. He was subsequently prosecuted for an offence u/s 302 IPC and in that case the possession of revolver was a fact in issue in the later case, which had to be established by the prosecution. It was held that the finding in the former trial on the issue of possession of revolver would constitute an estoppel against the prosecution, not as a bar to the trial and conviction of the appellant for a different offence but as precluding the reception of evidence to disturb the finding of fact.
44. The said decision was also subsequently noted by the Hon'ble Supreme Court with approval in Lalta & Ors. v. State of UP, 1970 AIR 1381 wherein the Hon'ble Supreme Court observed that Section 403 of Cr.P.C. does not preclude the applicability of the rule of issue estoppel. Accordingly the principle issue estoppel was also applied in the said case.
45. In view of the aforesaid decisions of the Hon'ble superior courts the facts of the present case will have to be examined. In FIR No. 395/2008 PS Shakarpur, accused Yogesh and Arun Sharma were acquitted of the charge u/s 25 Arms Act for possession of the pistols, which were recovered from them and the Ld. Predecessor doubted the manner of arrest of accused persons and observed that the contradictions in the testimonies of witnesses makes entire story of prosecution unreliable and Sessions Case No. 1339/2016 Page 48/51 ASJ-04/East/KKD Court creates a serious doubt if at all, the accused persons were apprehended in the manner as alleged by the prosecution. Accordingly, the entire prosecution version was considered doubtful and unreliable. It is noteworthy that in the said case the prosecution had examined the witnesses of arrest and recovery of the pistol, which was used by accused Yogesh @ Hariom and Arun Sharma at the time of commission of the offence in the present case.
46. After the arrest of the accused persons namely Yogesh @ Hariom and Arun Sharma on 07.08.2008 in case FIR No. 395/2008 PS Shakarpur, SI Bhanu Kanwariya handed over to PW30 Sh. V.K.Dham, IO of the present case, on 07.08.2008, alongwith the relevant documents of FIR No. 395/2008 and also produced accused Yogesh and Arun Sharma before him alongwith their disclosure statements. PW30 interrogated accused Yogesh and Arun. PW30 arrest accused Yogesh ad Arun and arrested them vide arrest memos Ex. PW24/A and PW24/B respectively.
47. It is noteworthy that since the recovery of pistols and cartridges from the possession of the accused persons was effected in FIR No. 395/2008, charge u/s 25 of the Arms Act was framed in that case. No charge u/s 25 Arms Act has been framed in the present case. However, the prosecution has relied upon the factum of recovery of the pistols from accused Yogesh and Arun Sharma and the bullets retrieved from the body of the deceased and has also examined the witnesses of recovery of pistols i.e. PW24 Const. Ashok Kumar, PW25 ASI Manoj Kumar, PW26 SI Sessions Case No. 1339/2016 Page 49/51 ASJ-04/East/KKD Court Vinay Yadav, PW29 SI Bhanu Kanwariya. The witnesses regarding recovery of pistols have already been examined in FIR No. 395/2008 and the ld. Predecessor court has already held that the entire story of the prosecution was unreliable that the accused persons were apprehended in the manner, alleged by the prosecution . The accused Yogesh @ Harim and Arun Sharma were accordingly acquitted of the charge u/s 25 of the Arms Act. The said finding of the Ld. Predecessor regarding acquittal u/s 25 of the Arms Act can not be re-agitated as the issue of possession of incriminating pistols from accused Arun and Yogesh already stood decided in FIR No. 395/2008 PS Shakarpur. No appeal has been filed against acquittal of accused Yogesh @ Hariom and Arun Sharma in FIR No. 395/2008 PS Shakarpur. Accordingly, the prosecution is estopped from re-agitating the issue of possession/recovery of arms from accused Yogesh @ Hariom and Arun Sharma in the present case.
48. As discussed hereinabove the accused persons have not been identified as the assailants by any of the public witnesses i.e. PW5, PW17, PW21, PW9 and PW10, who were present at and around the spot at the time of incident. The motorcycle bearing registration no. DL-6SV-4926, which was used by the assailants at the time of commission of the offence, has not been proved to have been used by them in view of testimony of PW8, PW19 and PW22. Additionally, the finger prints lifted from the said motorcycle could not be connected with the accused persons. The motorcycle was not identified by PW5, PW17 and PW21. Though the bullet retrieved from the body of the deceased and deformed bullet found at the spot were Sessions Case No. 1339/2016 Page 50/51 ASJ-04/East/KKD Court found to have been fired from the pistols recovered from accused Arun Sharma and Yogesh @ Hariom, as per the FSL result, however since the issue of possession of the said pistols has already been decided in favour of the accused Yogesh @ Hariom and Arun Sharma in case FIR No. 395/2008, the said finding would constitute an estoppel on the prosecution in the present case. In these circumstances the user of the pistols and cartridges while committing the robbery has not been proved to have been attributed to accused Yogesh @ Hariom and Arun Sharma. Pertinently, the money robbed from the deceased has not been recovered from any of the accused persons. Additionally, there is no evidence on record either oral or documentary to connect accused Hari Kishan and Deepak with the offence of criminal conspiracy to commit robbery and murder of deceased Mahesh Kapoor.
49. In view of the aforesaid discussion, the accused persons namely Yogesh @ Hariom, Arun Sharma and Deepak Soni are acquitted for the offences they have been charged with. Their bail bonds stand cancelled and sureties stand discharged.
50. After compliance of Section 437A Cr.P.C, file be consigned to Record Room.
order DEEPALI Digitally signed by DEEPALI SHARMA Announced in the open Court SHARMA Date: 2023.05.31 17:14:49 +0530 on this 31st day of May, 2023 (Deepali Sharma) Additional Sessions Judge-04 East District/KKD Courts/Delhi.
Sessions Case No. 1339/2016 Page 51/51 ASJ-04/East/KKD Court