Delhi District Court
State vs Dinesh @ Bhairo @ Ponni & Ors on 23 March, 2023
FIR No. 393/17
PS Chhawla
State vs Dinesh @ Bhairo @ Ponni & Ors
IN THE COURT OF VIPLAV DABASS:
ADDL. SESSIONS JUDGE : FAST TRACK COURT:
SOUTH-WEST DISTRICT
DWARKA COURTS: NEW DELHI
SC No. 364/18
CNR No DLSW01-010634-2018
JUDGMENT
State Vs.
(I) Dinesh @ Bhairo @ Ponni
S/o Sh. Om Prakash
R/o RZ-29/A, Chauhan Enclave,
Najafgarh, New Delhi (proceedings
were abated vide order dated
20.12.2018 since expired)
(2) Rajat @ Popli @ Deepak
S/o Sh. Dalip Kumar
R/o H.No. 42, Old Roshanpura,
Najafgarh, New Delhi
(3) Yogesh @ Tinku Dahiya
S/o Sh. Satish Kumar
R/o RZ-48-A, Ganpati Enclave,
Najafgarh, New Delhi
FIR No. 393/17
Police Station Chhawla
Under Sections Under Sections 307/34 IPC
and Under Section 27 Arms Act
Date of institution 21.03.2018
Page No.1 of 27
FIR No. 393/17
PS Chhawla
State vs Dinesh @ Bhairo @ Ponni & Ors
Date of committal to Sessions Court 21.05.2018
Date of transfer to this court 19.09.2022
Date on which judgment was reserved 23.03.2023
Date on which Judgment pronounced 23.03.2023
Final Order Acquitted
FACTUAL MATRIX
1. The case of prosecution is that on 10.09.2017 at around 09.45 pm, at Shamshan Ghat(cremation ground) Road, Roshan Vihar, Delhi, the accused persons namely Dinesh @ Bhairo @ Ponni, Rajat @ Popli @ Deepak and Yogesh @ Tinku Dahiya in furtherance of their common intention, fired bullets with fire arms not having valid license on the persons of Rohit s/o Sh. Balwan Singh and Amit s/o Subhash by using the deadly weapons with such an intention or knowledge or under such circumstances that if their death had been caused, they would have been guilty of murder.
2. On the complaint of the complainant Amit Kumar, the present FIR No. 393/2017 PS Chhawla, for the offences punishable under section 307/34 IPC and 25/27 Arms Act was registered and a charge-sheet for offences punishable u/s 307/34 IPC and 25/27 IPC was filed after usual investigation.
Page No.2 of 27 FIR No. 393/17PS Chhawla State vs Dinesh @ Bhairo @ Ponni & Ors COURT PROCEEDINGS
3. Ld. Magistrate took cognizance of offences alleged. After compliance of section 207 Cr.P.C, the present case was committed to court of Sessions.
4. After hearing arguments on point of charge, on 02.08.2018, as a prime facie case was made out, charge for the offences punishable u/s 307/34 IPC and 27 Arms Act was framed against all the accused persons by the Ld. Predecessor Court to which the accused persons pleaded not guilty and claimed trial. Thereafter, the matter was listed for prosecution evidence.
5. It is pertinent to mention that during the trial of the present case accused Dinesh @ Bhairo expired and proceedings against him were abated vide order dated 20.12.2018 passed by Ld. Predecessor court.
6. In order to prove the guilt of the accused u/s 307/34 IPC and 27 Arms Act, the prosecution has to prove the following essential ingredients of the said Sections:
Section 307 IPC:-Attempt to Murder (1) the accused did some act with such an intention or knowledge or under such circumstances that if he by that act caused death, he would be guilty of murder.Page No.3 of 27 FIR No. 393/17
PS Chhawla State vs Dinesh @ Bhairo @ Ponni & Ors (2) such act was done with intention or knowledge that hurt was likely to be caused to the victim by the act.
Section 34 IPC:- Sharing of Common intention (I) That the criminal act or a series of acts which include omissions and need not necessary be an overt act should have been done not by one person but by more then one person.
(ii) That the doing of every such individual act cumulatively resulting into the commission of criminal offence should have been in furtherance/ advancement/ promotion of common intention of all such persons. Section 27 Arms Act:-
That accused used fire arm/ammunition and that the said arm/ ammunition was not having valid license PROSECUTION EVIDENCE
7. To prove the aforementioned ingredients of the various offences and its case, prosecution started its evidence with the testimony of prosecution witnesses as per the list.
8. PW-1 Amit was one of the eye witness of the prosecution who resiled from his statement recorded under section 161 Cr.P.C by police. The Page No.4 of 27 FIR No. 393/17 PS Chhawla State vs Dinesh @ Bhairo @ Ponni & Ors testimony of this witness will be discussed in the later part of the judgment.
9. PW-2 Rohit was one of the eye witness of the prosecution who resiled from his statement recorded under section 161 Cr.P.C by police. The testimony of this witness will be discussed in the later part of the judgment.
10. PW3 Deepak was the eye witness of the prosecution who resiled from his statement recorded under section 161 Cr.P.C by police. The testimony of this witness will be discussed in the later part of the judgment.
11. PW-4 Retd. SI Satya Narayan was the Duty Officer posted at Police Station Chhawla on 10.09.2017. He deposed that on that day, he received Rukka at about 11:30 pm sent by SI Sant Ram Bhardwaj through HC Rajpal, that on the basis of the same, he registered the FIR Ex. PW- 4/A (OSR) and that he had given certificate under section 65-B Indian Evidence Act as Ex. PW-4/B. He further deposed that he made endorsement Ex. PW-4/C on the rukka and that after registration of case, he handed over the copy of FIR and original rukka to HC Raj Pal for handing over the same to IO.
The witness was not cross examined by the Ld. Defence counsel despite opportunity.
Page No.5 of 27 FIR No. 393/17PS Chhawla State vs Dinesh @ Bhairo @ Ponni & Ors
12. PW-5 Dr. Abhishek Gupta was posted as Emergency Medical Officer at Vikas Hospital, Najafgarh, Delhi on 10.09.2017. He deposed that he was appearing on behalf of Dr. Subhash who has left the service of the hospital, that he had seen the MLC No.835 and 836 dated 10.09.2017 of Patient Rohit and Amit, that as per record they were brought in the hospital by police for their examination, that Dr. Subhash Mishra was attending doctor and examining them, that the patients had given the alleged history of gun shot injury and that after treating the patient the doctor had opined the nature of injuries as grievous to both injured. He exhibited the MLC no.835 and 836 as Ex. PW5/A (OSR) and Ex. PW5/B (OSR).
During his cross examination conducted by Ld. Defence Counsel, he admitted that as per MLC no exhibits were sealed by doctor concerned and handed over to any police officials, that no reference of GSR is also mentioned in the MLCs and that he had not worked with Dr. Subhash Mishra. He further deposed that he had deposed only on basis of the record available with the hospital.
13. PW-6 Retd SI Sant Ram Bhardwaj was the Investigating Officer. He deposed that on 10.09.2017, he was posted at PS Chhawla, that DD No.67A Ex. A-2 was marked to him for further proceedings, that he Page No.6 of 27 FIR No. 393/17 PS Chhawla State vs Dinesh @ Bhairo @ Ponni & Ors along with HC Raj Pal reached at the spot i.e. Samshan Ghat Roshan Vihar, Paprawat Road, Delhi where SHO along with other staff including ASI Shri Krishan were also present, that one fired cartridge of 7.6 mm, one lead and one samsung mobile phone was found, that the crime team was called at the spot which inspected the spot, that he lifted the said ammunition and put the cartridge and lead in separate pullandas and sealed with the seal of SRB and then seized the same, that the seizure memo of ammunition is Ex. PW6/A and that mobile phone of Samsung company was also put in a pullanda and sealed with the seal of SRB and seized vide memo as Ex. PW6/B. He further deposed that an information was received by him that injured were taken to Vikas hospital, Najafgarh on which he along with SI Shri Krishan reached at the hospital where he found Rohit and Amit admitted there, that he filed applications as Ex. PW6/C and Ex. PW6/D for getting the fitness of injured for recording of their statement, that the doctor had opined that patient Amit was fit for statement whereas Patient Rohit was unable to give statement as he was in operation, that he recorded the statement of Amit as Ex. PW1/PX1, that he came back at the spot and prepared the Rukka which is Ex. PW6/E, that he handed over the Rukka to HC Rajpal for getting the FIR registered who went back to the police and got the case registered and that HC Rajpal came back at the spot and handed over the rukka and copy of FIR is Ex. PW4/A. Page No.7 of 27 FIR No. 393/17 PS Chhawla State vs Dinesh @ Bhairo @ Ponni & Ors He further deposed that he came back at the police station and deposited the case property in malkhana and he noted the FIR number on seizure memo and that he also prepared the site plan which is Ex. PW6/F. He further deposed that on 20.09.2017, IO of case FIR No.404/17 PS Chhawla informed him about the arrest of accused Dinesh @ Bhairo, that it was also informed that he had also confessed his involvement in the present case and that he obtained the documents from the IO and interrogated the accused Dinesh (proceedings are abated qua him).
He further deposed that the disclosure statement of accused Dinesh in FIR no.404/17 was mark A, then he arrested accused Dinesh vide Ex. PW6/G, that accused Dinesh was produced in the court and PC was taken, that accused led them to the house of co-accused Rajat @ Popli who was found there and that he interrogated the said accused and then arrested vide Ex. PW6/H. He further deposed that on 03.10.2017, other co-accused Yogesh @ Tinku came in the PS along with his father and that he interrogated him and arrested him vide Ex. PW6/I. He further deposed that at the instance of accused Dinesh @ Bhairo, he also recovered the vehicle no. DL-2CAP-8981 (Ritz) vide Ex. PW6/J, that he had also collected the document of FIR no. 404/17 PS Chhawla and also collected the crime team Page No.8 of 27 FIR No. 393/17 PS Chhawla State vs Dinesh @ Bhairo @ Ponni & Ors report is Ex. A-3, that he also collected the CCTV footage from one Vaishno Kumar s/o Devraj r/o RZ-31A, Roshan Vihar, Delhi, that DVD qua CCTV footage is Ex. PW6/K and certificate u/s 65 B in this aspect is mark B and that he also recorded the statement of witnesses and that after the completion of investigation he filed the chargesheet in the court.
In answer to court question whether he sent the ammunition recovered from the spot to the FSL for comparison with the weapon recovered in the FIR No.404/2017 PS Chhawla, he replied that he does not send the same.
He correctly identified accused Yogesh @ Tinku and accused Rajat @ Popli. He further deposed that he can identify the case property if shown to him. However, Ld Defence counsel Sh. Dinesh Mudgil did not dispute the identity of the case property i.e. cartridge, lead, mobile phone, car. However, he disputed the recovery of the same.
During his cross examination conducted by Ld. Defence counsel, he deposed that he does not record the statement of any public person at the spot, that he remained at the spot for about 2 and 1/2 hours, that he reached at the spot at about 10:30 pm and finally left the spot at 12:30 am, that he does not see whether the mobile phone whcih was seized by him was having sim or not and that the same belongs to injured Rohit. He admitted that he did not seize the DVR, that CD was handed over to him by Vaishno Kumar in his Page No.9 of 27 FIR No. 393/17 PS Chhawla State vs Dinesh @ Bhairo @ Ponni & Ors home, that he did not prepare the seizure and that CD Ex. PW6/K was not having any particulars of the FIR.
He denied that no such incident ever happened or that no disclosure statement was given by the accused. He deposed that he does not remember now who was the owner of Ritz car and that he does not give any notice to owner of the vehicle. He denied that no certificate u/s 65 B Indian Evidence Act was given to him by Vaishno or that he obtained his signature on it mechanically.
He further deposed that he does not know who was the specific owner of the DVR as he did not enquire the same. He denied that he did not investigate the matter properly or that he falsely implicated the accused in the present case and that nothing was recovered from the possession of accused.
14. Accused admitted the factum of preparation and genuineness of DD no. 66-A dated 10.09.2017 Ex. A-1, DD No. 67-A dated 10.09.2017 Ex. A2 and Crime Report Ex. A-3 in his statement recorded u/s 294 Cr.PC without admitting the truthfulness of the contents of the same. Accordingly, respective witnesses namely DO/ASI Sat Narayan and ASI Surender Singh were dropped from the list of witnesses.
15. Thereafter, the prosecution evidence was closed vide order dated 22.03.2023 on the submissions of Ld. Addl. PP for State and the matter was Page No.10 of 27 FIR No. 393/17 PS Chhawla State vs Dinesh @ Bhairo @ Ponni & Ors fixed for recording of statement of accused persons.
16. On 23.03.2023, the statement of accused persons under Section 313 Cr.P.C. was recorded and incriminating circumstances appearing in evidence were put to them who stated that the same are incorrect. Accused submitted that they have been falsely implicated in this case. The accused persons did not opt to lead defence evidence and hence, defence evidence was closed. Thereafter, the matter was proceeded further for final arguments.
FINAL ARGUMENTS
17. Sh. Girish Kumar Manhas, Ld. Additional Public Prosecutor argued that the police witnesses have clearly established the prosecution version of shar- ing of common intention by the accused persons to kill the victim Amit and Rohit and the factum of happening of the alleged incident of firing bullets with fire arms in the alleged manner. He further argued that the fact that the complainant/victims and other eye witness have turned resiled from their statement qua the identity of the accused persons as offenders and the alleged incident does not in any manner effect the veracity of the consistent testimony of the police witnesses as they did not have any previous enmity with the ac- cused persons. He further stated that moreover the complainant/eye witnesses in such cases resile from their statements due to fear of future enmity with the Page No.11 of 27 FIR No. 393/17 PS Chhawla State vs Dinesh @ Bhairo @ Ponni & Ors offenders, so the firm testimony of the police cannot be discarded in such cir- cumstances and in these facts, all the accused persons be convicted for the of- fences charged as prosecution has proved all the ingredients necessary for completion of the alleged offences.
18. Ld. counsel for the accused persons argued that the complainant and other eye witnesses who are the Star witnesses of the prosecution have not supported its version qua happening of the incident in the alleged manner, presence of accused persons at the spot, identity of the accused persons as as- sailants and use of pistol to kill the complainant/victims. He argued that the testimony of the police witnesses is of no consequence in view of resiling of the main witnesses/complainant/victims. He further stated that the retraction of the complainant and other eye witnesses substantiates the defence version of false implication of the accused persons by manipulating the documents for working out the case. He further submitted that the accused persons in these circumstances should be acquitted.
19. This court heard the arguments advanced by the Ld. Additional PP for the State and Ld. Counsel for the accused and perused the record of the case.
APPRECIATION OF FACTS/CONTENTIONS/EVIDENCE AND FINDINGS
20. In order to establish the guilt of the accused persons, it is imperative for Page No.12 of 27 FIR No. 393/17 PS Chhawla State vs Dinesh @ Bhairo @ Ponni & Ors the prosecution to establish the factum of presence of accused persons at the spot, the identity of accused persons as offenders, factum of happening of the alleged incident of firing of bullets upon the victim Rohit and Amit by using the deadly weapon without valid license and the factum of sharing of common intention by them in committing the alleged crime.
21. Perusal of the record reveals that prosecution examined three eye witnesses ie PW-1 Amit, PW-2 Rohit and PW-3 Deepak.
22. Bare reading of the testimony of PW-1 shows he had completely resiled from his statement recorded under section 161 Cr. P.C to the police upon which the present case was registered. PW-1 deposed in his examination in chief that he does not know about the present case nor he can identify any of the accused person whether present in court or not, nor his statement was recorded. The accused Yogesh was specifically shown to the witness but PW- 1 failed to identify him. PW-1 further stated that he cannot identify the accused Rajat, if shown to him.
In his remaining examination conducted on 14.03.2023, he further deposed that except the facts which he stated on 23.12.2019, he does not want to say anything else in this case as he was not aware about the incident pertaining to this case, that on 10.09.2017 and that he was called by IO of this case in police station Chhawla where his thumb impression on blank papers Page No.13 of 27 FIR No. 393/17 PS Chhawla State vs Dinesh @ Bhairo @ Ponni & Ors were obtained and nothing was written by the IO in his presence.
In the cross examination conducted by the Ld. Addl. PP for the State, PW-1 denied making any statement to the IO. In the further cross-examination conducted by the Ld. Sub. Addl. PP for the State, PW-1 further denied that during relevant period of incident in question, he was student of B.A (final) in MDU, Rohtak or that on 10.09.2017, he alongwith his friend Rohit and Deepak were going to Khera Mor on a bike No. DL-9SBE-5508 I-smart of his friend Deepak or that they were going to Khera Mor via Roshanpura Village. Witness was confronted with his statement Ex.PW1/PX1 where it is so recorded.
He denied that at about 9:45 p.m, when they both reached at Shamshan Ghat Road, Roshan Vihar, a white color four-wheeler came there from Paprawat Road and it was stopped on Roshan Vihar Road, near their bike. Witness was confronted with his statement Ex.PW1/PX1 where it is so recorded.
He denied that three persons got down from that four-wheeler i.e. car or that they had fired upon them by using fire arms or that during that bullet fire incident, one bullet had hit the right side chest of his friend Rohit, whereas two bullet had hit on his right hand. Witness was confronted with his statement Ex.PW1/PX1 where it is so recorded.
He denied that he knew two assailants out of those assailants i.e. one was Bhairav and another was Yogesh @ Tinku @ Dhaiya and third one Page No.14 of 27 FIR No. 393/17 PS Chhawla State vs Dinesh @ Bhairo @ Ponni & Ors was friend of Dahiya and their fourth associate did not alight from the car or that the aforesaid three accused persons had fired/shot upon them with intention to kill them and caused bullet injuries or that Rohit was also admitted in Vikas Hospital and was in ICU under medical observation. Witness was confronted with his statement Ex.PW1/PX1 where it is so recorded. He denied that on 13.09.2017, he had stated to the IO the names of assailants ie, Bhairo, Yogesh @ Tinku and Popli @Deepak, who all had caused gun shot injuries to him and also to his friend Rohit with intention to kill them. Witness was confronted with his statement us/. 161 Cr.PC dt 13.09.2017 Ex.PW1/PX2 where it is so recorded.
He admitted that he does not remember the date, however, on that day, he and his friend Rohit had received gut shot injuries at Shamshan Ghat Road, Roshan Vihar. He voluntarily deposed that he could not identify the assailant by their faces as it was dark night time.
He denied that the aforesaid bullet fire incident was caused by the accused Dinesh @ Bhairo @ Ponni, Rajat @ Popli @ Deepak and Yogesh @ Tinku Dahiya with him and his friend Rohit or that he had correctly recognized the aforesaid assailants by their faces during commission of offence in question, that he had been won over by accused Rajat @ Popli @ Deepak and Yogesh @ Tinku and due to said reason he was not deliberately identifying both of them (present in court) to be the actual assailants of incident or that he was deposing falsely to save both of them.
Page No.15 of 27 FIR No. 393/17PS Chhawla State vs Dinesh @ Bhairo @ Ponni & Ors During his cross-examination conducted by Ld. Defence counsel he deposed that he had deposed without any pressure or coercion.
23. This deposition shows that PW-1 did not identify the accused persons as the offenders who were present at the spot on the day of incident and had committed the alleged offences. It is further seen from the cross examination of PW-1 conducted by Ld. Sub. Addl. for the State that PW-1 did not identify the accused persons as offenders despite his attention being drawn specifically to the accused persons by the Ld. Addl. PP for State. He voluntarily deposed that he could not identify the assailant by their faces as it was dark night time and this voluntarily deposition has gone unrebutted. It is further evident from his testimony that he even did not support about the factum of recording of his statement by the police by deposing that on 10.09.2017, he was called by IO of this case in the police station Chhawla where his thumb impression on blank papers were obtained and nothing was written by IO in his presence and firmly denying in his cross examination conducted by the Ld. Addl. PP for the State the factum of making any statement to the IO. PW-1 did not say anything regarding the firing incident and causing of injuries to him and his friend whereas in the cross-examination he admitted that he does not remember the date, however, on that day, he and his friend Rohit had received gut shot injuries at Shamshan Ghat Road, Roshan Vihar. This testimony itself shows that PW-1 is not reliable witness as he did not utter about the firing Page No.16 of 27 FIR No. 393/17 PS Chhawla State vs Dinesh @ Bhairo @ Ponni & Ors incident in the examination in chief at the very first instance. The admission made by PW-1 in his cross-examination conducted by Ld. Defence counsel that he had deposed without any pressure or coercion further establishes the correctness of the version of PW-1 deposed in his examination in chief wherein he has completely shattered the prosecution case and rules out the presence of any tutoring or influence at the time of deposition before the court.
24. These testimonies show that prosecution failed to extract any material in its favour despite detailed cross-examination of PW-1 qua the identity of the accused persons as offenders and their presence at the spot on day of incident or happening of the alleged incident in the alleged manner. These depositions of PW-1 have the effect of demolishing the very foundation of the case as PW-1 is the complainant. It further tantamounts to exonerating the accused persons from the allegations of firing in alleged manner by using pistol without valid license in furtherance of their common intention, levelled against them.
25. Similarly, PW-2 deposed in his examination that he does not know about the present case nor he can identify any of the accused person as it was a night time, whether present in the court or not, nor his statement was recorded, that as there was a crowd and some of the persons fired as a result Page No.17 of 27 FIR No. 393/17 PS Chhawla State vs Dinesh @ Bhairo @ Ponni & Ors of which he received injury on his right arm but he cannot identify those persons.
He further deposed that he does not remember the date, however, about 5-6 years back he along with his friend namely Amit and Deepak were going to Najafgarh, that when they just crossed the Roshanpura Village, Najafgarh Road one car came from the front side, that thereafter, Deepak had ran away, that the person sitting in the car started using abusive language and fired upon them, that he and Amit received bullet injuries, that as it was dark night and there was no light there, he could not see as to who had fired upon them and that he does not want to say anything else. He further deposed that he can not identify any accused persons.
In the cross examination conducted by the Ld. Addl. PP for State, he deposed that he had not given any statement to the police.
He denied that number of the car was DL-2C-AP-8981, that he was known to the accused persons prior to the incident or that the name of the accused persons were Bhairav, Yogesh @ Tinku or Rajat @ Popli or that he has stated the name of accused person before the police officials also.
Accused persons present in the court were shown to the witness and after seeing them, the witness stated that he does not identify the accused persons. He denied that he was not deliberately identifying the accused persons being won over by them. The witness was read over statement Mark X who denied having made any such statement to the police. He denied that Page No.18 of 27 FIR No. 393/17 PS Chhawla State vs Dinesh @ Bhairo @ Ponni & Ors he was deposing falsely or deliberately not supporting the case being won over by the accused persons.
26. This testimony shows that PW-2 stated about the happening of the incident but not about the involvement of the accused persons or their presence at the spot. This deposition of PW-2 further shows that in the cross examination conducted by Ld. Addl. PP for the State he denied making any statement to the police, the involvement of the alleged vehicle no. DL-2C-AP- 8981, factum of involvement of the accused persons in the alleged incident and their presence at the spot which further implies that prosecution failed to establish the involvement and identity of the accused persons as offenders despite detailed cross examination.
27. Record shows that prosecution examined PW-3 Deepak/ another eye witness to establish its case. He deposed in his examination in chief that he does not remember the date, however it was about 5-6 years, that he along with his friend Amit and Rohit were going towards Khaira Mor, that at about 09:00 pm when they reached near Shamshan Ghat Road, Roshanpura at that time one car came from front side and they became imbalanced and fell down on the road, that one boy had come out from the car and thereafter he had left the spot and that he does not identify anyone nor he want to say anything else.
During his cross-examination conducted by Ld. Addl. PP for State, he Page No.19 of 27 FIR No. 393/17 PS Chhawla State vs Dinesh @ Bhairo @ Ponni & Ors deposed that he had not given any statement to the police and that he does not remember if the date was 10.09.2017 or not. He denied that from the car three boys had alighted or one of those had taken out pistol or that after seeing the same, he ran away.
Accused persons present in the court were shown to the witness and after seeing them witness stated that he does not identify the accused persons. He denied that he was not deliberately identifying the accused persons being won over by them. Statement Mark Y was read over to witness and witness denied having made such statement to the police. He denied that he was deposing falsely or not supporting the case deliberately being won over by the accused persons. The witness was not cross examined by the Ld. Defence counsel despite opportunity.
28. This deposition of PW-3 shows that he denied making any statement to the police, the factum of involvement of the accused persons in the alleged incident and their presence at the spot which further implies that prosecution failed to establish the involvement and identity of the accused persons as offenders despite detailed cross examination.
29. Record shows that the case of the prosecution is that PW-1, PW-2 and PW-3 were together at the time of happening of the firing incident. It is also important to mention here that PW-1 stated about the happening of the Page No.20 of 27 FIR No. 393/17 PS Chhawla State vs Dinesh @ Bhairo @ Ponni & Ors incident in his cross-examination conducted by the Ld. Addl. PP for the State though he did not state about the same in his examination in chief. This testimony itself shows that PW-1 is not reliable witness as he did not utter about the firing incident in the examination in chief at the very first instance. PW-2 who as per version of PW-1 was present along with him at the time of the alleged incident disclosed about the happening of the alleged incident of firing. Testimony of PW-3 shows that he did not say anything about the happening of the said incident. These inconsistencies in the testimonies of PW-1, PW-2 and PW-3 create grave doubt upon the very factum of presence of the said witnesses/ victims at the spot at the time of the incident which further shows that the version of happening of the alleged incident itself is highly suspicious.
30. Record shows that prosecution examined PW-5 Dr. Abhishek Gupta to prove the alleged history given by the victims and causing of injuries on the person of PW-1 and PW-2 by gun shot injuries as well as the nature of injuries. His testimony reveals that he is not the author of the MLCs Ex. PW- 5/A and Ex. PW-5/B and he was appearing on behalf of doctor Subhash who left the services of hospital where the MLCs were prepared. In the cross- examination he admitted that he had not worked with Dr. Subhash Mishra and that he had deposed on the basis of record available with the hospital.
This admission along with the fact that he did not say anything about Page No.21 of 27 FIR No. 393/17 PS Chhawla State vs Dinesh @ Bhairo @ Ponni & Ors identifying the handwriting of the treating doctor in his examination in chief establishes that the said MLCs are not properly proved and hence are of no consequence. In the cross-examination PW-5 Dr. Abhishek Gupta further admitted that no reference of gun shot residue (GSR) is mentioned in the MLCs. This admission shows that the version of sustaining gun shot injury is not proved by the said MLCs as reference of GSR is always made in such like cases.
31. It is evident that neither any fire arm or ammunition was recovered from the possession or at the instance of the accused persons. Even the alleged fired cartridges and lead were not sent to FSL for examination during entire investigation or even during trial before the court. It shows that there is no material to connect the cartridges recovered from the spot by the police officials, with the alleged incident of firing by the accused persons. No explanation has been given during the entire trial by the police officials for the lapse for not sending the ammunition for examination to FSL. This unexplained lapse creates grave doubt upon the correctness and fairness of the investigation.
32. The police officials did not even make any sincere efforts to collect the dump data of the spot as well as nearby areas so as to establish the presence of the accused on the relevant date at or near the spot. This again is material omission on the part of the investigating agency which renders the Page No.22 of 27 FIR No. 393/17 PS Chhawla State vs Dinesh @ Bhairo @ Ponni & Ors investigation doubtful and substantiates the defence version of false implication of the accused.
33. It is pertinent to refer to the testimony of PW-6/IO who deposed that he also collected CCTV footage from one Vaishno Kumar s/o Sh. Devraj, that DVD/CCTV footage is Ex. PW-6/A and that certificate under section 65-B Indian Evidence Act in this regard is Mark B. However, in his cross- examination conducted by Ld. Defence counsel he admitted that he did not seize the DVR. He further deposed that CD was handed over to him by Vaishno Kumar in his home and that he did not prepare the seizure memo. He admitted that the CD Ex. PW-6/K is not having any particulars of the FIR. He further deposed that he does not know who was the specific owner of the DVR as he does not enquire the same. These admissions and depositions made by IO/PW-6 in his cross-examination show that the basic/ primary apprataus to store the data ie DVR was not seized by him which renders the CD and veracity of its contents inconsequential. Furthermore the admission made by him to the effect that he did not prepare the seizure of the CD and that the CD is not having any particulars of the FIR shows that chances of tampering of the contents of the CD as well as subsequent planting of the same cannot be ruled out. These omissions made by the IO at the time of investigation in following the settled procedure for seizure further creates doubt upon the factum of collection of CD as well as its veracity.
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34. He deposed that he does not remember now who was the owner of Ritz car and that he does not give any notice to owner of the vehicle. This testimony shows that no investigation was conducted regarding the car allegedly used in the incident which indicates that there is no material to connect the accused persons with the car in which they arrived at the spot and had fired upon the victims. It further renders the investigation conducted by the Investigating Officer highly doubtful.
35. It follows from the aforediscussed inconsistencies, contradictions and discrepancies in the testimonies of the eye witnesses/injured and other prosecution witnesses that the factum of commission of offence punishable under section 307 IPC read with section 34 IPC and use of fire arm without valid license punishable under section 27 Arms Act by the accused persons is not established at all.
36. Perusal of the record shows that PW-1, PW-2 and PW-3 are the only eye witnesses of the incident. Mere reading of testimony of police witness PW-6 SI Sant Ram who went to the spot for investigation after receiving information of the alleged incident, shows that he is not even eye witness of the incident and has merely conducted the investigation based on the version stated by the complainant/victim after reaching the spot on the happening of the alleged incident. Furthermore, the testimonies of the eye witnesses i.e PW- 1, PW-2 and PW-3 wherein they have firmly denied about giving any Page No.24 of 27 FIR No. 393/17 PS Chhawla State vs Dinesh @ Bhairo @ Ponni & Ors statement to the police indicate that chances of manipulation of the documents by the police are not ruled out. It further creates grave doubt upon the fairness and impartiality of the investigation which renders the same nugatory. So, testimony of police witnesses, in view of resiling of the complainant/ eye witnesses from their statements made before the police, is of no consequence to incriminate the accused persons for the alleged offences.
37. It is already evident from the aforementioned discussion that identity of the accused persons as offenders and factum of happening of the alleged inci- dent has not been established. It is further pertinent to mention that the prose- cution did not bring any material suggesting the sharing of common intention by the accused persons for commission of the alleged offences. Neither any telephonic record or nor any other electronic evidence or other direct evidence has been brought on record suggesting even their presence at the spot so as to assume that there was ever an occasion for the accused persons to share com- mon intention for committing the alleged offences at the spot.
38. It thus emerges from the aforesaid discussion and perusal of testimonies of PWs as well as record that there is neither any reliable eyewitness of the incident nor any other circumstance to prove beyond reasonable doubt the identity of accused persons as assailants, the presence of the accused persons at the spot, the factum of sharing of common intention by the accused persons to kill the victim Amit and Rohit, the factum of happening of the alleged inci-
Page No.25 of 27 FIR No. 393/17PS Chhawla State vs Dinesh @ Bhairo @ Ponni & Ors dent of firing in the alleged manner by using gun/ pistol without valid license, which are essential elements for completion of offence punishable u/s 307/34 IPC and 27 Arms Act.
39. Considering the afore-discussed testimonies, this Court is of the view that arguments advanced by the Ld. Additional Public Prosecutor for the State that the prosecution has proved all the ingredients necessary for completion of the alleged offences do not have any force whereas the arguments made on behalf of defence that the accused persons have been falsely implicated are found to be justified.
40. In view of the aforesaid discussion, this Court is of the view that the prosecution has not been able to prove its case against the accused persons beyond reasonable doubts. Accordingly, accused persons namely Rajat @ Popli @ Deepak and Yogesh @ Tinku are acquitted of the charge punishable under section 307/34 IPC and under section 27 Arms Act levelled against them. Bail bond stands cancelled and Surety be discharged, if any. Documents, if any, be returned to the rightful person against receiving and after cancellation of endorsement, if any.
41. Fresh bail bond and surety bond furnished in compliance of Section 437 (A) Cr.P.C are considered and accepted.
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42. File be consigned to the Record Room after due compliance.
Announced in the Open Court (VIPLAV DABASS)
On 23.03.2023 ADDITIONAL SESSIONS JUDGE:
FAST TRACK COURT
DWARKA COURTS, SOUTH-WEST
NEW DELHI
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