Delhi District Court
State vs Pawan Singh Yadav on 30 September, 2022
IN THE COURT OF SH. SONU AGNIHOTRI
ADDL. SESSIONS JUDGE (SOUTHEAST)03,
SAKET COURTS, DELHI
Case Registration No. 1880/2016
CNR No: DLSE010001052009
FIR No. 217/2005
Police Station: New Friends Colony
Under Section 120B/201/120B IPC, Section 203/182/120B IPC,
Section 307 IPC and Section 25/27 Arms Act
STATE
VERSUS
1. PAWAN SINGH YADAV
S/o Ajab Singh Yadav
R/o 422, Gali No. 9, Geetanjali Vihar,
District Gaziabad, UP.
2. AJAB SINGH YADAV
S/o Bahadur Singh Yadav
R/o 422, Gali No. 9, Geetanjali Vihar,
Khoda Colony, District Gaziabad, UP.
Date of institution : 08.09.2009
Date of Reserving judgment : 03.06.2022
Date of Pronouncement : 30.09.2022
Decision : Acquitted
For State : Sh. F. M. Ansari, Learned Addl. Public Prosecutor.
For Defence: Sh. Pawan Sharma, counsel for both accused
persons.
FIR No: 217/2005 PS: NFC Case Registration No. 1880/2016 Page No. 1....of 45
JUDGMENT
1. Accused were committed for trial by court of Sh. Naveen Arora, Ld. ACMM, charge sheet having been filed against accused persons for commission of offences U/sec 307/182/201/203/114/109/120B IPC and Section 25/27 Arms Act.
2. Charge U/sec 120B/201/120B/203/182/120B IPC was framed against both accused persons on 03.12.2011 on the facts that on 30.04.2005 at about 08:00 PM at DND Road, Noida Toll to Delhi side in front of Poll No. PO22, accused persons entered into criminal conspiracy and conspired to commit robbery with deadly weapon and implicate Mohar Singh and Anil falsely which is an illegal act punishable with death. Accused persons entered into criminal conspiracy knowing or having reason to believe that offence of robbery punishable with imprisonment of life has not been committed by Mohar Singh and Anil and after that accused threw desi katta in Yamuna River to cause evidence of commission of offence to disappear with intention to screen themselves from legal punishment. Accused persons gave false information to police i.e. public servant to the effect that they were robbed by Mohar Singh and Anil knowing or having reason to believe the said information to be false.
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3. Charge U/sec 307 IPC and Section 25/27 Arms Act was framed against accused Pawan Kumar on 03.12.2011 on the allegations that on 30.04.2005 at about 08:00 PM at DND Road, Noida Toll to Delhi side in front of Poll No. PO 22, accused Pawan Kumar and his father namely Ajab Singh entered into a criminal conspiracy and conspired to falsely implicate Mohar Singh and Anil in a robbery case and in pursuance of that conspiracy, accused Pawan Kumar fired upon his father and caused bullet injury on his person and attempted to commit his murder with such knowledge and under such circumstances that by that act accused Pawan Kumar had caused death of Ajab Singh, accused Pawan Kumar would have been guilty of murder. Further, on 01.05.2005 from Yamuna river, one desi katta with used cartridge was got recovered by accused Pawan Kumar which he had used for commission of abovesaid offence in contravention of notification issued by Delhi Administration.
4. Brief facts on the basis of which chargesheet in the matter was filed are as follows:
5. On 30.04.2005, ASI Hasrat Ali on receipt of DD No. 14A reached at DND Road, in front of Pole No. 22 alongwith Ct. Raghav Ram where it transpired that injured has been shifted to hospital. No injured or complainant was found at the spot. Some blood drops were found near road side. ASI Hasrat Ali informed senior officers and called Crime Tram at the spot. In the meanwhile, ASI Hasrat Ali received DD No. 17A through FIR No: 217/2005 PS: NFC Case Registration No. 1880/2016 Page No. 3....of 45 Ct. Sandeep. ASI Hasrat Ali left Ct. Sandeep at the spot for preservation of the spot and himself went to casualty of AIIMS Hospital alongwith Ct. Ragav Ram where he procured MLC of injured Ajab Singh. Injured was declared unfit for statement. Son of injured namely Pawan Singh Yadav met ASI Hasrat Ali whose statement was recorded by ASI Hasrat Ali.
6. Pawan Singh Yadav in his statement stated that he is working as a Property Dealer with his father. He stated that today i.e. on 30.04.2005, he alongwith his father left around 07:30 PM for Kapashera border from their house at Khoda Colony on motorcycle bearing No. DL2SH5544. He stated that they were also carrying cash amount of Rs. 40,000/ which they kept in Dicky of motorcycle alongwith papers of property. He stated that at about 08:00 PM, when they reached at DND Road before flyover, one seemingly new Alto Car (without number plate) overtook them and they were signaled to be stopped whereupon he applied breaks of his bullet. Two persons namely Mohar Singh and Anil who are father and son deboarded the said Alto car, came near them and started abusing them. He stated that Anil fired on his father Ajab Singh with katta whereupon his father was injured in his left arm. He stated that thereafter, Anil broke lock of dicky of his bullet by giving a fist blow and took out black bag kept in it. He stated that money and documents kept in the black bag were given by Anil to his father and thereafter, both of them ran away from the spot in their Alto Car. He stated that the car was being driven FIR No: 217/2005 PS: NFC Case Registration No. 1880/2016 Page No. 4....of 45 by some third person. He stated that after Mohar Singh and Anil left, he tied his handkerchief on arm of his father. He stated that he tried to stop 23 vehicles by signaling his hand but no one stopped and thereafter, he called at 100 number. He stated that both Mohar Singh and his son Anil are responsible for incident that took place and they be proceeded against legally.
7. ASI Hasrat Ali got lodged FIR U/sec 307/34 IPC by sending rukka to PS through Ct. Raghav Ram and carried out investigation by himself. During investigation, ASI Hasrat Ali inspected spot and prepared site plan at instance of Pawan Singh Yadav and recorded statements of witnesses U/sec 161 Cr. P. C. Ct. Raghav Ram procured sealed pulinda of blood stained clothes of injured Ajab Singh Yadav, blood sample and sample seal from AIIMS and produced the same to IO. IO further took into possession blood stained shirt of injured Ajab Singh and sealed the same with his seal. Thereafter, complainant produced his motorcycle bearing No. DL2SH 5544 having flag of Samajwadi Party on its mud guard on which complainant and injured rided to at place of occurrence and which motorcycle was seized vide separate memo. IO further seized toll tax receipt dated 30.04.2005 whereupon time of 19:28 PM was mentioned produced by complainant vide separate memo.
8. IO during investigation visited house of Mohar Singh Yadav and Anil who were found to be asleep. On inquiry, it FIR No: 217/2005 PS: NFC Case Registration No. 1880/2016 Page No. 5....of 45 transpired that Mohar Singh Yadav remained at his house for the whole day and that he has no concern with incident in question as no one involved in such an incident will be found sleeping in his house.
9. Mohar Singh Yadav on inquiry told that he has land in Khel Gaon which was being getting sold on commission by Ajab Singh Yadav but now, Ajab Singh Yadav by impersonating him and by forging his signatures has sold his land fraudulently. He further told that on he objecting, Ajab Singh Yadav tried to implicate him in number of false cases. He told that he got lodged FIR No. 63/2005 U/sec 420/467/468/471/120B IPC PS Sihani Gate, District Gaziabad against Ajab Singh Yadav which is pending trial and since then, there is tiff between him and Ajab Singh Yadav. Mohar Singh Yadav produced documents regarding his plot and copy of FIR to IO which were taken into possession by IO vide separate memo.
10. During investigation, IO came to know that Pawan Singh Yadav and Ajab Singh Yadav in conspiracy with each other in order to pressurize Mohar Singh Yadav and his son Anil tried to implicate them in false case and in actual Pawan Singh Yadav himself fired at his father Ajab Singh with desi katta by close range. On evidence being found, IO arrested accused Pawan Singh Yadav. Accused Pawan Singh Yadav is stated to have taken three and half bigha of land from Mohar Singh Yadav on commission out of which now1500 yards land remains and rest FIR No: 217/2005 PS: NFC Case Registration No. 1880/2016 Page No. 6....of 45 of land was sold by him by dividing into plots. Some of the plots were sold by affixing photograph of Ajab Singh Yadav and by forging signatures of Mohar Singh Yadav because of which Mohar Singh Yadav got lodged case against Ajab Singh Yadav on account of which enmity between parties increased.
11. IO recorded disclosure statement of accused Pawan Singh Yadav. IO got recovered desi katta from Yamuna River with help of divers as disclosed by accused Pawan Singh Yadav and took the same into possession vide separate memo. IO recorded statement of divers U/sec 161 Cr. P.C and added Section 25 Arms Act in the matter.
12. IO arrested both the accused during investigation and sent them to JC. IO during investigation sent desi katta to FSL and FSL report was procured by SI Girish Jain. On SI Girish Jain getting transferred, WSI Rita during investigation procured permission u/sec 39 Arms Act and further took subsequent opinion on MLC of accused Ajab Singh. WSI Rita sent blood stained shirts of accused persons in FSL. FSL result regarding shirts of accused was not received till filing of charge sheet. After transfer of WSI Rita, further investigation was assigned to SI Kailash Chand Meena who procured permission U/sec 39 Arms Act from DCP, South.
13. On 08.09.2009, police report under Section 173 of the Code of Criminal Procedure, 1973 (Cr.P.C) was put up before Ld. ACMM, South East with a view to put accused persons for trial.
FIR No: 217/2005 PS: NFC Case Registration No. 1880/2016 Page No. 7....of 45
14. In the light of the police report and the documents filed alongwith the same, Learned ACMM, South East having taken cognizance of the offences complied with the provisions of section 207 of Cr.P.C.
15. On 03.12.2011, charge was framed against both accused persons for having committed offences punishable under sections 120B/201/120B/203/182/120B IPC. Separate charge U/sec 25/27 Arms Act and U/sec 307 IPC was framed against accused Pawan Kumar on 03.12.2011. Charges were read over and explained to accused persons to which they did not plead guilty and claimed trial.
16. In support of its case, prosecution examined 15 witnesses in total.
17. PW1 HC Hawa Singh is Duty Officer who deposed that on 30.04.2005, he was posted as Duty Officer at PS NFC and his duty hours were from 09:00 PM to 09:00 AM. He deposed that at about 10:45 PM, Ct. Raghav Ram came at PS with tehrir who was sent by ASI Hasrat Ali and produced the same before him. He deposed that on basis of tehrir, he recorded FIR on DD No. 18A vide FIR No. 217/05 U/sec 307/34 IPC vide Ex. PW1/A. He deposed that he made endorsement on tehrir vide Ex. PW1/B. He deposed that after registration of same, he handed over copy of FIR and original tehrir to Ct. Raghav Ram who left from PS for handing over the same to IO for investigation. He deposed that on above said FIR No: 217/2005 PS: NFC Case Registration No. 1880/2016 Page No. 8....of 45 date at about 08:02 PM, he was informed by Operator regarding an information that one person was shot under NOIDA Toll Bridge. Concerned DO recorded said information on DD No. 14A vide Ex. PW1/C and handed over to IO who left PS with Ct. Raghav Ram for taking necessary action. He deposed that on above said date at about 09:15 PM, he was informed by Duty Ct. Vipin Kumar through telephone from AIIMS that one Ajab Singh S/o Bahadur Singh who received bullet injury near Toll Bridge NOIDA was admitted in hospital in injured condition. He recorded said information via DD No. 17A vide Ex. PW 1/D and sent to IO SI Hasrat Ali Khan through Ct. Sandeep.
18. PW2 Mohar Singh deposed that in year 2005, he was residing at address as mentioned in his deposition alongwith his family. He knew accused Ajab Singh and his son Pawan Singh as they were residents of Village Khoda. Both accused persons were having criminal history and nature and number of civil and criminal case are pending in court against them. He deposed that both accused persons were having relations with criminals and they were also having litigations civil as well as criminal against him. He deposed that they used to threaten them. He was afraid of loss of his life and property. During investigation of this case, he handed over photocopies of documents pertaining to various litigations against accused persons. IO also verified documents and seized the same vide memo Ex. PW2/A. He deposed that on 30.04.2005, when police visited his house during investigation of present case, he FIR No: 217/2005 PS: NFC Case Registration No. 1880/2016 Page No. 9....of 45 and his son Anil were sleeping in house. Accused persons wanted to implicate him in false criminal case. Police had inquired and recored his statement. He exhibited documents handed over by him to police vide Ex. PW2/A1 to Ex. PW 2/A26. He correctly identified both accused before court.
19. PW3 Harish Bhardwaj deposed that he was posted as Rout Petrol Officer at DND Flyway Delhi and Noida. On 01.05.2005, while he was on patrolling, he reached at Yamuna Bridge where he saw that number of persons had gathered. He also stopped there and joined investigation of this case with IO. He saw that swimmers were searching something in Yamuna river. After sometime, one swimmer took out one katta from water and he brought same and handed over same to police. Police took out one used cartridge from katta and prepared sketch of katta and used cartridge vide Ex. PW3/A. IO prepared separate pulandas of recovered katta and one used cartridge with help of cloth and sealed the same and took into possession vide seizure memo Ex. PW3/B. IO recorded his statement in this effect. Witness correctly identified case property i.e. katta vide Ex. P1 and cartridge vide Ex. P2.
20. PW4 SI Kailash Chandra Meena deposed that on 22.10.2008, he was posted as SI in PS NFC. He deposed that on that day, above said case file was entrusted to him for further investigation. On 11.11.2008, he collected sanction U/sec 39 Arms Act from DCP office and placed it on file. Thereafter, he was transferred to another PS on 01.01.2009, so he deposited FIR No: 217/2005 PS: NFC Case Registration No. 1880/2016 Page No. 10....of 45 case file under custody of MHC ( R).
21. PW5 Ct. Raghav Sharma deposed that on 30.04.2005, he was posted as Constable in PS NFC. On that day, he was on emergency duty from 08:00 AM to 08:00 PM. On that day, he joined investigation with ASI Hasrat Ali. After receipt of DD No. 14A, he alongwith ASI Hasrat Ali reached at the spot at DND Flyover in front of Pole No. 22. During inquiry at the spot, they came to know that injured had already been taken to hospital by PCR. No eye witness was found at the spot. Some blood drops were found at the spot. ASI Hasrat Ali also called Crime Team at the spot. In the meanwhile, Ct. Sandeep came at the spot alongwith DD No. 17A, handed over to IO, thereafter, he alongwith ASI Hasrat Ali left the spot and went to AIIMS Hospital after leaving Ct. Sandeep to guard spot. In AIIMS hospital, he collected MLC of Ajab Singh Yadav. Doctor had opined on MLC of Ajab Singh "patient unfit for statement". In hospital, eye witness Pawan Kumar Yadav son of Ajab Singh Yadav met at hospital. Thereafter, IO inquired from him and recorded his statement, prepared rukka, handed over to him for registration of case. He went to PS NFC, produced original tehrir before DO for registration of FIR. After registration of FIR, he obtained copy of FIR and original Rukka and returned back to AIIMS and handed over the same to IO. Thereafter, he alongwith IO reached at the spot. At the spot, Crime Team was already present. Crime team officials took photographs of spot. Crime Team officials handed over report to IO. Thereafter, he FIR No: 217/2005 PS: NFC Case Registration No. 1880/2016 Page No. 11....of 45 alongwith IO reached at AIIMS again where hospital staff handed over them two sealed parcels containing blood stained clothes of Ajab Singh and Pawan and IO took into possession said parcels through seizure memo vide Ex. PW5/A and Ex. PW5/B. Motorcycle bearing No. DL2SH5544 was also seized by IO vide memo Ex. PW5/C. IO recorded his statement in this regard. He correctly identified accused Pawan before court. He failed to identify accused Ajab Singh Yadav due to lapse of time. He correctly identified case property i.e. one shirt of light yellow colour with some blood spots belonging to accused Pawan vide Ex. P1 and motorcycle make Enfield Bullet vide Ex. P2. He in his crossexamination by State also exhibited seizure memo of toll tax receipt vide Ex.PW5/D and toll tax receipt vide Ex.PW5/E.
22. PW6 N. S. Bundela deposed that on 23.06.2008, he was posted as Additional DCP in South District. On that day, he accorded sanction U/sec 39 of Arms Act against accused Pawan Singh Yadav after perusing complete case file and relevant documents i.e. report of FSL. After application of his mind, he gave sanction under Arms Act vide Ex. PW6/A.
23. PW7 SI Girish Jain deposed that on 17.03.2007, he was posted at PS NFC and on that day, he received case file of this case for further investigation. He received Ballistic Expert Report on 21.11.2007. He moved an application seeking sanction U/sec 39 Arms Act from competent authority. Thereafter, he was transferred from PS and he handed over the FIR No: 217/2005 PS: NFC Case Registration No. 1880/2016 Page No. 12....of 45 file to MHC (R).
24. PW8 Dr. Puneet Puri deposed that on 26.12.2005, two sealed parcels of present case with seal of HAK were received in FSL through messenger Ct. Jagat Singh. Seals on parcels were intact and as per specimen seal provided with FSL form. On opening 1st parcel, one country made pistol of .315 inch bore was taken out and marked as Ex. F1 by him. On opening 2 nd parcel, one 8 mm/.315 inch cartridge case was taken out and marked as Ex. EC1. On examination, he found that country made pistol Ex.F1 was in working order. Test fire was conducted successfully by using one 8 mm cartridge from laboratory stock and test fired cartridge case was marked as TC
1. Cartridge case marked as Ex. EC1 was fired empty cartridge and had been fired through country made pistol marked Ex. F1 as individual characteristics of firing pin marks and breech face marks present on Ex. EC1 and on test fired cartridge case marked TC1 were found identical when examined under comparison microscope. Country made pistol marked Ex. F1 was firearm and cartridge case marked Ex. EC1 was ammunition as defined in Arms Act, 1959. Exhibits were then resealed with seal of PPFSL, Delhi. He exhibited his detailed report in this regard vide Ex. PW8/A.
25. PW9 Dr. Sanjiv Lalwani deposed that on 05.05.2008, he was posted in Department of Forensic Medicines and Toxicology, AIIMS as Assistant Professor. On request of SI Reeta, PS NFC vide her application dated 25.03.08 and FIR No: 217/2005 PS: NFC Case Registration No. 1880/2016 Page No. 13....of 45 26.03.08 he alongwith Sh. A. Day, PSO and HOD, Ballistic, CFSL, CBI, Delhi gave subsequent opinion on MLC No. 50372/05 of Ajab Singh. Injuries mentioned in MLC were as under: A single entry wound present about 4 cm X 3 cm on anterior aspect of left arm and exit wound present on medical aspect of left arm about 1.5 cm. There was no active bleeding. Venous oozing was present.
X ray report mentions no fracture seen.
It was also felt necessary to examine clothing of victim, hence SI Reeta requested to provide same. Subsequently sealed parcel bearing 3 intact seals of CMO, AIIMS and also mentioning Ajab Singh MLC No. 50372/05 and signatures of Dr. Azhoni, Jr. Resident, Casualty signed dated 01.05.2005 with blue ink and case FIR No.217/05, U/sec 307/34 IPC PS NFC mentioning "khoon alooda kapre mazrub Ajab Singh Yadav" signatures of PS NF Colony dt. 30.04.05 with black ink.
On opening this parcel, one kurta was recovered with left sleeves into 2 pieces. There were multiple dried suspected blood stains on both pieces of clothings, there was suspected blackening on left arm sleeve on both pieces in area corresponding to entry wound as mentioned in MLC. To confirm whether this blackening is due to gun shot residue or otherwise, it was felt necessary that clothings should be examined by Ballistic Expert. Accordingly, Director, CFSL was requested vide Fax letter dated 01.05.2008 to nominate one FIR No: 217/2005 PS: NFC Case Registration No. 1880/2016 Page No. 14....of 45 Ballistic Expert. Meeting with Ballistic Expert was held on 05.05.2008 at 02:30 PM in CFL, CGO Complex, Delhi where clothings were examined for gun shot residue and same was positive for gun shot residue.
Accordingly, they gave opinion on questionnaires submitted by IO as under:
1. In view of clothings giving positive result for gun shot residue, size of entry wound 4 x 3 on left arm (accessible parts) as mentioned in MLC report and X ray report mentioning no fracture. Possibility of injured being self inflicted cannot be ruled out, however, other circumstantial evidence may be taken into consideration to arrive at logical conclusion.
2. In view of clothing's giving positive results for gun shot residue, size of entry wound 4 cm x 3 cm on left arm as mentioned in MLC report and X ray report mentioning no fracture, firing could be from close range.
3. The direction of bullet is from front to backward and medially.
4. There was no blackening observed on skin of injured.
He deposed that their detailed opinion is Ex. PW9/A. Other expert Sh. A. Day also put his signatures on each page at point B in his presence. Said clothes were again sealed with seal of their department and handed over to IO with sample seal. He exhibited MLC No. 50372/05 of Ajab Singh vide Ex. PW9/B.
26. PW10 Dr. A. Dey deposed that on 05.05.2008, he was working as PSO HOD, Ballistic, CFSL, CBI, Delhi and on that FIR No: 217/2005 PS: NFC Case Registration No. 1880/2016 Page No. 15....of 45 day, he examined record of this case and prepared report of subsequent opinion on MLC of Ajab Singh vide already Ex. PW9/A.
27. PW11 WSI Rita deposed that in year 2008, she was posted in PS NFC. She deposed that on 21.01.2008, investigation of this case was assigned to her. She applied for sanction under Section 39 of Arms Act and she obtained subsequent opinion on MLC. She also sent one parcel containing shirt of accused Ajab Singh to FSL for being examined on priority basis. She obtained antecedents of both accused persons from Indrapuram. On 29.09.2008, she got transferred so she handed over file to MHC (R).
28. PW12 Dr. Dhruv Sharma deposed that on 26.06.2008, he was posted as Senior Scientific Officer, Biology, FSL, Rohini. On that day, three sealed parcels were received by office of FSL Rohini. Same were assigned to him. On 05.02.2009, he opened said three parcels for biological examination. Parcel No. 1 which was sealed with seal of HAK contained Ex.1 i.e. one shirt. Parcel No. 2 which was sealed with seal of MSL, Department of Forensic Medicines, AIIMS, New Delhi contained Ex.2 i.e. one torn kurta / shirt. Parcel No. 3 which was sealed with seal of CMO, AIIMS, HOPTND contained Ex. 3 i.e. dark brown wet gauge described as blood sample. He deposed that on examination, blood was detected on all three exhibits. Exhibits were also examined serologically and human blood of A group was detected on Ex. 1 and Ex. 2 FIR No: 217/2005 PS: NFC Case Registration No. 1880/2016 Page No. 16....of 45 while Ex. 3 blood sample was found putrefied, so detection of blood group could not be done on same. He prepared detailed reports dated 27.02.2009 vide Ex. PW12/A and Ex. PW12/B. The remnants were sealed with seal of DSFSL, Delhi.
29. PW-13 SI Hasrat Ali deposed that on 30.04.2005 he was posted as ASI at PS NFC and was on an emergency duty from 8:00AM to 8:00PM. On said day, at about 8:02PM, he received DD No.14A to the effect that one person has been shot under Noida Toll Bridge. Accordingly, he along with Constable Raghav Ram reached at the spot but nobody was found there. Guards told that injured has been taken to AIIMS hospital by van. There was blood lying on the footpath opposite Pole No. PD22. He shared the incident with senior police officers and called up crime team at the spot. By that time, he received another DD No.17A through Constable Sandeep to the effect that injured Ajab Singh has been hospitalized in AIIMS hospital. Leaving constable Sandeep at the spot, he along with Constable Raghav Ram reached AIIMS hospital where injured Ajab Singh was found hospitalized vide MLC No.50372/05 and was declared unfit for statement. One Sh. Pawan Singh Yadav S/o Injured Sh. Ajab Singh Yadav was also present in AIIMS hospital and alleged himself to be to eye witness of the incident. He recorded his statement vide Ex. PW-13/A and prepared ruka vide Ex.PW-13/B and handed over the same to Constable Raghav Ram for registration of case. Pawan also showed his bullet motorcycle which contained blood stains. He along with Pawan left for the spot. Pawan went by his bullet motorcycle FIR No: 217/2005 PS: NFC Case Registration No. 1880/2016 Page No. 17....of 45 whereas he went by his motorcycle. He prepared site plan vide Ex.PW-13/C at instance of Pawan. By that time, Constable Raghav Ram came to spot and handed over the Ruka and copy of the FIR back to him. Shirt of Pawan Singh was also blood stained so he prepared Pullanda of the same and sealed same with seal of HAK and took into possession vide seizure memo already exhibited as Ex.PW-5/B. He also took into possession bullet motorcycle of Pawan bearing registration No. DL-2-SH- 5544 vide seizure memo already Ex.PW-5/C. Crime team officials had also clicked photographs of the bullet motorcycle. Pawan Singh Yadav also produced on his demand toll tax receipt No. 01 qua toll tax of bullet motorcycle paid by him at 19:28 PM on 30.04.2005 itself. He took into possession toll tax receipt vide seizure memo already Ex.PW-5/D. Toll tax receipt on record is already exhibited as Ex.PW-5/E. Crime team officials handed over to him crime team report as well as the photographs which he placed on record. Thereafter they along with Pawan Yadav came to police station where he deposited case property in Malkhanna and recorded statements of both constables. He informed SHO about incident. As per instructions of SHO, he along with special staff officials of South District went to Khoda in Noida as per address given by Pawan Singh Yadav where alleged Mohar Singh and his son were found present and were sleeping. During investigation, Mohar Singh told that accused Ajab Singh sold out their land by forging signatures of Mohar Singh and that Mohar Singh got registered a case in this regard against Ajab Singh in Ghaziabad FIR No: 217/2005 PS: NFC Case Registration No. 1880/2016 Page No. 18....of 45 Police Station which is pending in Court of law. Mohar Singh also revealed that accused Ajab Singh and Pawan Singh Yadav had threatened him to falsely implicate him in a false case. Even he was surprised that both Mohar Singh and his son were sleeping at their house after this incident so he instructed him to appear in police station NFC next date along with the documents. Thereafter he visited AIIMS hospital where Constable Raghav Ram handed over to him one sealed pullanda duly sealed with the seal of hospital containing blood stained clothes of injured Ajab Singh which he took into possession vide seizure memo already Ex.PW-5/A. Since, accused Pawan Singh Yadav entered toll bridge at 19:28PM as shown in the toll tax receipt and it hardly takes five minutes to cross / cover DND flyway by motorcycle and the incident as per the DD No. 14A occurred at 7:50PM so he suspected version of Pawan Singh Yadav. His suspicion further got strengthened by version of Pawan Singh that at time of firing, he was some distance from bullet whereas bullet as well as his shirt both were blood stained. On strength of suspicion, he called up Pawan Singh Yadav and interrogated him. On sustained interrogation, he disclosed that one Mohar Singh had given them 3.5 bigha land for the purpose of selling out and that some of land they sold out by forging signature of Mohar Singh qua which Mohar Singh got registered a case against them. So in order to pressurize him to withdraw said case, he along with his father conspired to falsely implicate Mohar Singh and his son. Pawan Singh confessed his guilt and disclosed that after firing shot on FIR No: 217/2005 PS: NFC Case Registration No. 1880/2016 Page No. 19....of 45 Ajab Singh, he disposed of Desi Katta into Yamuna River. He pointed out place of disposal of Katta in the Yamuna River by throwing a piece of stone into the water. At this, he arranged for the divers (Gota Khor) and showed him place as pointed out by accused Pawan Singh. Diver Naresh Sawhney along with his associates entered into water and Naresh took out one katta from Yamuna and produced same to him. On checking Katta, it contained one fired cartridge. He prepared sketch of Katta and Cartridge already Ex.PW3/A. He prepared Pullanda of Katta and Cartridge and sealed same with seal of HAK and took the same into possession vide seizure memo already Ex.PW3/B. He also prepared site plan of actual spot vide Ex.PW13/D. He added section 25/54/59 Arms Act in the charge-sheet. He arrested accused Pawan Singh Yadav vide arrest memo Ex.PW13/E and conducted his personal search vide personal search memo Ex.PW13/F. During course of interrogation, accused Pawan Yadav made a disclosure statement Ex. PW13/G. He also filled up FSL Form at the spot and recorded statement of witnesses and thereafter they came back to police station where he deposited case property in Malkhana and put accused behind the bar. Mohar Singh and his son Anil had come to police station along with copy of the FIR and complaints made by him against accused persons. He recorded statement of Mohar Singh U/s 161 Cr.P.C and also added Sections 182/109/114/203/120B IPC in charge sheet. On 02.05.2005, accused Ajab Singh was discharged from the hospital and came to police station. He interrogated him and arrested him vide FIR No: 217/2005 PS: NFC Case Registration No. 1880/2016 Page No. 20....of 45 memo Ex.PW13/H and conducted his personal search vide memo Ex.PW13/I. Accused persons were got sent to JC. He also sent case property to FSL for examination. Thereafter, he was transferred from PS NFC and so he deposited case file with MHC (R). He correctly identified both accused before court. He correctly identified case property before court i.e. Katta vide already Ex.P1, cartridge Ex.P2, one blood stained shirt of light yellow colour belonging to accused Pawan vide Ex.P3 (wrongly given Ex.P1 previously) and bullet motorcycle vide Ex.P4 (wrongly given Ex.P2 previously).
30. PW14 Rajbir Singh deposed that he was working as Record Clerk in AIIMS Hospital since 1987. He deposed that he has seen Dr. V. Revathy Agnihotri signing and writing during course of her service. He correctly identified signatures of Dr. V. Revathy Agnihotri on MLC No. 50372 dated 30.04.2005 of injured Ajab Singh vide Ex. PW9/B at point A. He deposed that he identified signatures of Dr. V. Revathy Agnihotri on basis of record kept in their record room.
31. PW15 Inspector Yogeshwar Singh deposed that on 28.01.2019, he was posted as Chowki InCharge of Sun Light Colony, PS New Friends Colony. On that day, he was handed over investigation of present case. He prepared challan and put the same to court through SHO, PS New Friends Colony.
32. Prosecution evidence was closed on submissions of Ld. Additional PP for State vide order dated 15.01.2019.
FIR No: 217/2005 PS: NFC Case Registration No. 1880/2016 Page No. 21....of 45
33. On 19.07.2019, accused Pawan Singh Yadav was examined under section 313 Cr.P.C wherein incriminating material appearing in evidence against accused was put to accused to which accused stated that he alongwith his father and police officials of PCR van went to AIIMS. He stated that Mohar Singh and Anil Yadav were not sleeping when he reached at their home in night. He stated that Mohar Singh and his son were not sleeping after this incident and they were awake. He stated that it is a false and fabricated case against him and witnesses have deposed falsely. He stated that he is innocent and has been falsely implicated in present case at instance of Mohar Singh Yadav, Anil Yadav, Gyan Chand Yadav (Inspector in UP), Subhash Chand Yadav (Constable in Delhi Police), Manta Yadav. He stated that Mohar Singh Yadav appointed his father Ajab Singh Yadav as attorney on 06.02.2002 to sell the property which was 3000 sq yards, Khasra No. 402, Azad Vihar, Khora Colony, Gaziabad, UP @ 2 % commission but later on he had taken Rs. 6 lacs as he told them he required same for marriage of his daughter and he made an agreement with them to sell his whole property for Rs. 54 lacs and they were asked to pay rest of amount i.e. Rs. 48 lacs later within two years but he did not fulfill his promise and started selling aforesaid land directly, therefore a dispute arise between Mohar Singh Yadav and his father Ajab Singh and there were witnesses also i.e. Pappu and Vinod to this agreement. Mohar Singh and his son Anil Yadav and other FIR No: 217/2005 PS: NFC Case Registration No. 1880/2016 Page No. 22....of 45 persons namely Ranpal, Sanjay fired upon his mother who fortunately survived and case of attempt to murder has been lodged against him in police station Indrapuram, UP but accused Mohar Singh and Anil Yadav manipulated case with help of police and they have not been made accused. Thereafter, Mohar Singh and Anil Yadav conspired against them and they committed offence with them and falsely implicated them by manipulating case with help of police. He stated that on 30.04.2005 at about 07:50 PM, at DND Flyover, Anil Yadav fired upon his father Ajab Singh in his presence at instance of his father Mohar Singh Yadav and he made police complaint in this regard but Anil Yadav was not arrested as they with help of police manipulated case and implicated them in present case falsely.
34. On 03.08.2019 accused Ajab Singh was examined under section 313 Cr.P.C wherein incriminating material appearing in evidence against accused was put to accused to which accused stated that police planted desi katta in present case. He stated that he alongwith his son and police officials of PCR van went to AIIMS. He stated that Mohar Singh Yadav and Anil Yadav were not sleeping when his son Pawan Yadav reached at their home in night. He stated that Mohar Singh Yadav made him attorney to sell his property on 2% commission and he also made agreement to sell and took Rs. 5 lacs from him and Mohar Singh Yadav and Anil Yadav falsely implicated him and his son Pawan Yadav with help of police and Delhi Police did not take FIR No: 217/2005 PS: NFC Case Registration No. 1880/2016 Page No. 23....of 45 any local UP police officials with them. He stated that at 07:30 PM, Mohar Singh Yadav and Anil Yadav came in their new Alto Car (White Colour) which was not having any registration number plate due to car being new. Mohar Singh Yadav told him to stop his motorcycle as he wanted to talk with him on issue of property, then he told his son to stop motorcycle and his son stopped motorcycle near pole No. 22. He stated that Mohar Singh Yadav and Anil Yadav quarreled with him and used abusive language with him and his son and after hot talking, Mohar Singh Yadav instigated his son Anil Yadav to hit him with hands and legs. After some time, Anil Yadv pulled desi katta from his lower waist and fired upon him from near distance on account of which blood started oozing out from his left arm and he fled away with his father namely Mohar Singh Yadav. Before running from place of incident, they broke their motorcycle dicky and took one black Rexin bag which contained Rs. 40,000/ and documents of property. His son tied his handkerchief upon his wound but still blood was oozing out from his left arm. Then his son Pawan Kumar Yadav tried to stop and tried to take help by passersby and tried to stop vehicles but nobody helped them. Then his son tried to make him sit on back seat of his motorcycle for hospital but when his son started motorcycle, he fell down on left side. Then his son helped him to sit on footpath and made call at 100 number and they waited for PCR van. Police van came there and he alongwith his son Pawan Kumar Yadav went to AIIMS hospital FIR No: 217/2005 PS: NFC Case Registration No. 1880/2016 Page No. 24....of 45 with police in PCR van. During that period, they consumed time. Some passersby also witnessed the same. He sated that before sending to JC, coaccused Pawan Yadav was beaten by ASI Hasrat Ali and other police officials with stick and demand of Rs. 50,000/was made from both of them. He stated that katta does not pertains to him and his son Pawan Yadav. He stated that it is false and fabricated case against him and witnesses have deposed falsely. He stated that he is innocent and has been falsely implicated in present case at instance of Mohar Singh Yadav, Anil Yadav, Gyan Chand Yadav (Inspector in UP), Subhash Chand Yadav (Constable in Delhi Police), Manta Yadav. He stated that Mohar Singh Yadav appointed his father Ajab Singh Yadav as attorney on 06.02.2002 to sell the property which was 3000 sq yards, Khasra No. 402, Azad Vihar, Khora Colony, Gaziabad, UP @ 2 % commission but later on he had taken Rs. 6 lacs as he told them he required same for marriage of his daughter and he made an agreement with them to sell his whole property for Rs. 54 lacs and they were asked to pay rest of amount i.e. Rs. 48 lacs later within two years but he did not fulfill his promise and started selling aforesaid land directly, therefore a dispute arose between Mohar Singh Yadav and his father Ajab Singh and there were witnesses also i.e. Pappu and Vinod to this agreement. Mohar Singh and his son Anil Yadav and other persons namely Ranpal, Sanjay fired upon his mother who fortunately survived and case of attempt to murder has been lodged against him in FIR No: 217/2005 PS: NFC Case Registration No. 1880/2016 Page No. 25....of 45 police station Indrapuram, UP but accused Mohar Singh and Anil Yadav manipulated case with help of police and they have not been made accused. Thereafter, Mohar Singh and Anil Yadav conspired against them and they committed offence with them and falsely implicated them by manipulating case with help of police. He stated that on 30.04.2005 at about 07:50 PM, at DND Flyover, Anil Yadav fired upon his father Ajab Singh in his presence at instance of his father Mohar Singh Yadav and he made police complaint in this regard but Anil Yadav was not arrested as they with help of police manipulated case and implicated them in present case falsely. He stated that he gave complaint dated 30.06.2010 to Higher Police authorities but no action has been taken against Mohar Singh Yadav, Anil Yadav and ASI Hasrat Ali. Police officials in this case deliberately not made Anil Yadav neither witness nor accused. Anil Yadav and Mohar Singh Yadav (now expired) were doing illegal works and used to grab of poor persons namely Smt. Manbhawati Mishra, Ranju Singh, Anita Devi and a rape case is also registered against Anil Yadav and name of prosecutrix is Lakshmi.
35. Defence Evidence was led by accused persons.
36. In Defence Evidence, accused examined 05 witnesses.
37. DW1 Smt. Birma Devi deposed that on 28.01.2005 at about 04:00 PM to 10:00 PM, six persons namely Anil, Sanjay, Ranpal and three unknown persons were roaming and quarreling with her neighbours and Anil Yadav met her and FIR No: 217/2005 PS: NFC Case Registration No. 1880/2016 Page No. 26....of 45 threatened her and when she confronted why he was making noise and giving threats to their neighbours, then Anil Yadav asked him "Sali Chup Hoja warna tujhe bhi dekh lunga". After then, she went for sleep where her cow used to be kept and went to sleep. Her husband went to attend a marriage and he told her that he will come back till 01:00 PM. She prepared bed for her husband and kept a pillow. At about 02:10 AM, she heard noise of gun shot and she was very scared. She kept lying for 24 minutes. She saw from a hole in the wall that Anil Yadav, Sanjay, Ranpal and other three persons were running in different directions. She lodged complaint in this regard to Section Officer, Police Station Ghaziabad on 30.01.2005. From PS Ghaziabad, one Constable Satender Rai came and inquired and saw that one empty cartridge was lying on ground but no action was taken by police. She also filed an affidavit before ACJM, Ghaziabad to register complaint. Her husband also lodged complaint in this regard to Higher Authorities. She deposed that on 13.02.2005, she gave complaint regarding incident of 10.02.2005 to COII, Police Station Sihani Gate, Ghaziabad, UP in which Mohar Singh Yadav and Anil Yadav and other fifteen persons had come to her house and burnt household articles. However, no action taken by police on her said complaint. She stated that she knew Mohar Singh as he belongs to her husband's village. He is land grabber and he used to work as property dealer in Delhi and NOIDA.
FIR No: 217/2005 PS: NFC Case Registration No. 1880/2016 Page No. 27....of 45
38. DW2 Smt. Man Bhawti deposed that in year 2001, she had purchased land from one Mohar Singh Yadav and built up a house on said land. In year 2004, said Mohar Singh Yadav tried to grab her house and even he tried to snatch documents of said land. He also bet her up alongwith Anil Yadav, Netrapal and some others. She reported the matter to police at Birbal Police post, Indrrapuram, UP, however, no action was taken against said persons as Mohar Singh Yadav is influential person. Ajab Singh Yadav gave Rs. 1 lac cash to Mohar Singh Yadav on 10.06.2004 and document was prepared in this regard vide mark DW2/A.
39. DW-3 Ajab Singh Yadav deposed that Mohar Singh Yadav is complainant in this case. In 2002, he had purchased some land from Mohar Singh Yadav and in this regard a GPA was executed by Mohar Singh Yadav in his favour vide Mark DW3/D1 and photocopy of agreement dated 07.02.2002 is Mark DW3/D2. Later on, same land was sold out by Mohar Singh to other buyers. On this issue, a dispute arose between him and Mohar Singh. One Gyan Chand relative of Mohar Singh came to intervene and he told him that he should give Rs.1 Lac more to Mohar Singh to pacify matter. Then, he paid Rs.1 Lac to Mohar Singh in the presence of Manbhawati Mishra vide receipt Mark DW2/A. When he tried to sell the aforesaid land to buyers, then Mohar Singh asked him not to sell the same because rate of land had increased and said Mohar Singh having ill intention towards him started quarrelling with them and not allowed to sell out the aforesaid land. On 29.01.2005, said FIR No: 217/2005 PS: NFC Case Registration No. 1880/2016 Page No. 28....of 45 Mohar Singh and his associates assaulted his wife and in this regard, he gave complaint to police already Mark DW1/A. His wife also gave an affidavit in respect of the said assault before ACJM, Ghaziabad, U.P already Mark DW1/B. On 13.02.2005, said Mohar Singh and his associates attacked on his office and it was burnt by them and that his wife made a complaint in this regard to Circle Officer-II, PS Sihani Gate, Ghaziabad, U.P. already Mark DW1/C. Thereafter, on 30.11.2005, he sent legal notice Mark DW-3/D3 in respect of recovery of money given against aforesaid land to Mohar Singh Yadav. Amount of Rs.6 Lacs was given to Mohar Singh Yadav as token money at the time of agreement wherein total consideration amount was Rs.54 Lacs. Thereafter, on 30.04.2005, he was going to Gurgaon by his motorcycle with his son Pawan Singh for making payment of Rs.40,000/- to one Sh. Vijay Basu. On the way, when he reached near pole number 22, DND road, then said Mohar Singh gave signal, while he was travelling alongwith son Anil Yadav in an Alto Car which was being driven by some unknown person to stop their motorcycle. He asked his son to stop motorcycle and then he stopped motorcycle, then Mohar Singh Yadav and his son Anil Yadav alighted from the above Alto car and demanded to return the GPA and agreement to sell Mark DW3/D1 and D2. He tried to make Mohar Singh understand and told him that they will sit at the plot and take a reasonable decision but he was insisting to return above document then and there. He told him that he was not having the above said documents at that time and he will FIR No: 217/2005 PS: NFC Case Registration No. 1880/2016 Page No. 29....of 45 return the same after two days. Anil Yadav caught hold dickey of their motorcycle and insisted to open the said dickey. He was trying to open the dickey forcibly and he was stopping him. Then Mohar Singh asked his son to slap him. Then Anil took out a weapon like desi katta from his dub and hit same with dickey due to which dickey of his motorcycle was opened and from there, he took one black colour bag containing Rs.40,000/- and some photocopy papers of land. On this, he started scuffling with Mohar Singh Yadav and his son Anil Yadav. Then Mohar Singh instigated his son Anil and asked him to open fire upon him. Anil Yadav fired a shot upon him which hit his left arm, then he raised alarm for help. He asked his son Pawan Yadav to run away from there in order to save himself. He sat near the motorcycle, then Mohar Singh Yadav and his son left away from there with his black colour bag. After about five minutes, his son came to the spot. His son tried to take him to Hospital on motorcycle and after short distance, he became semi unconscious. Then his son made a call to police. Police reached there and removed him to AIIMS Hospital. On the next day, at about 10:30 AM, he was discharged from Hospital. He then went to Police Station New Friends Colony. Police went to houses of Mohar Singh Yadav and Anil Yadav alongwith his son and arrested them. Police registered the FIR and he was allowed to go home but they asked to leave his son Pawan Yadav in the police station for inquiry. Relatives of Mohar Singh Yadav who were in police department also reached there. Said relatives took Mohar Singh Yadav with them from police station.
FIR No: 217/2005 PS: NFC Case Registration No. 1880/2016 Page No. 30....of 45 Ultimately, police in connivance with Mohar Singh Yadav and his relatives implicated him and his son in this case and absolved Mohar Singh Yadav and his son Anil Yadav.
40. DW4 Smt. Laxmi deposed that on 13.03.2006, she was coming to her house from her factory via Mamura Chowk. One Maruti Van of Green Colour came and stopped near her. One of occupant of car offered to drop her home but she refused. Then he dragged her into said van from two boys and four boys were sitting inside the van. When she tried to shout, her mouth was gagged. They tried /covered her eyes with her dupatta. They were calling each other by name of Anil and Satish. They started teasing her. She requested them to leave her upon which they threatened her and said that they would kill her parents. Two boys committed Galat Kam with her and thereafter, they left her in an isolated open area in the area of Khora Colony. They threatened to kill her if she would narrate the incident to anyone. Thereafter, she reached her house and told about the incident to her mother and then, she went to PS Indrapuram with her mother and got registered FIR No. 102/2006, PS Sector58, Gautam Budh Nagar U/sec 376/506 IPC vide Mark DW4/A.
41. DW-5 Pawan Kumar Yadav deposed that on 30.04.2005, he alongwith his father i.e. accused Ajab Singh were going to Kapashera for making payment of Rs.40,000/- to Vijay Basu by his motorcycle. When, they reached at Pillar No.22, DND Flyover, Delhi, then one Alto car came from FIR No: 217/2005 PS: NFC Case Registration No. 1880/2016 Page No. 31....of 45 behind and the occupant of car gave signal to stop him. His father asked him to stop motorcycle and he then stopped it. Driver of alto car parked his car in front of his motorcycle. One Mohar Singh and his son Anil Yadav alighted from the said car and came to them. Mohar Singh asked his father to return Power of Attorney and Agreement of his land which he had earlier executed in favour of his father. When his father refused to return the same, then Mohar Singh abused his father, then, Mohar Singh asked his son Anil Yadav to slap his father. Anil Yadav tried to open the dicky of his motorcycle for taking out the documents, then his father caught him in order to stop to open the dicky, then Anil Yadav took out a desi katta and fired a shot upon his father Ajab Singh, due to which, he sustained injury. He became scared and ran away from the spot. Mohar Singh and his son Anil went away after taking out a bag containing Rs.40,000/- and some documents from dicky. After some time, he came to the spot. Blood was oozing from body of his father. He put a white colour hanker chief on the wound of his father. He made his father seated on the pillion seat and when he started his motorcycle, then his father told him that he was not comfortable and could not sit on the motorcycle. Then his father sat on the footpath. Thereafter, he made a call to police at 100 number. Police van came there and took his father to AIIMS Hospital, he also accompanied to the hospital. From the hospital, he was taken to P.S. by police and there his statement was recorded by the police. Police took him to the place of occurrence and inspected the spot. Thereafter, they FIR No: 217/2005 PS: NFC Case Registration No. 1880/2016 Page No. 32....of 45 returned to P.S. New Friend Colony. Thereafter, police took him to the house of Mohar Singh and his son Anil at Khora Village, Ghaziabad, UP. Mohar Singh met at his house and he identified him before police as offender, who committed offence against his father. Anil Yadav was also found at his house. Police took both the said persons to P.S. In the morning, at about 10 a.m., his father also reached in the P.S. from the hospital. One Minta Yadav R/o Khora Village and Gyan Chand R/o Gahlotpur relative of Mohar Singh also reached in the PS. Said Gyan Chand was working in U.P. Police. One Subhash Yadav also came in the PS, who was working in Delhi Police. One Mahender also came in the PS. Police sent his father to house and he was asked to remain in the PS. Later on, police made him sat in a separate room and above Mohar Singh and Anil Yadav were allowed to go from the PS. He was also beaten up by the IO. He and his father have been implicated in this case falsely.
42. Defence Evidence was closed vide order dated 25.02.2020.
43. I have heard arguments addressed by respective counsels and perused the record.
44. Before testing ingredients of offences u/s 120B/201/120B/203/182/120B IPC, Section 307 IPC and Section 25/27 Arms Act on factual matrix of present case, let me first deal with the aspect as to whether evidence adduced before Court by prosecution inspires sufficient confidence so as FIR No: 217/2005 PS: NFC Case Registration No. 1880/2016 Page No. 33....of 45 to warrant conviction of accused persons and in case, evidence is sufficiently reliable and trustworthy, I will discuss facts of the case vizaviz ingredients of offences for which charge was framed against accused persons. Important aspects which require to be discussed in facts and circumstances of present case are as follows:
45. Initially, FIR in present case was registered for commission of offence U/sec 307/34 IPC on complaint of accused Pawan Singh Yadav. FIR was lodged on the allegations that one Anil S/o Mohar Singh fired at accused Ajab Singh. Later on, during investigation, as per charge sheet, IO found that accused Pawan Singh Yadav and Ajab Singh Yadav conspired and inflicted fire shot injury on accused Ajab Singh Yadav by themselves in order to create pressure over Mohar Singh Yadav and his son Anil due to dispute regarding land belonging to Mohar Singh Yadav.
46. Offence U/sec 203 IPC pertains to giving of false information with regard to commission of an offence knowingly. Section 182 IPC pertains to giving of false information to a public servant intending to cause such public servant to use his lawful power to injury or annoyance of any person.
47. In case, allegations of commission of offence U/sec 307/34 IPC against Mohar Singh and Anil were false, initial complainant Pawan Singh Yadav to my mind cannot be FIR No: 217/2005 PS: NFC Case Registration No. 1880/2016 Page No. 34....of 45 convicted for commission of offence U/sec 307/34 IPC in the circumstances when charge U/sec 203/182/120B IPC was framed against accused. Framing of charge U/sec 203/182 /120 B IPC against accused Pawan Singh Yadav clearly indicates that he did not intend to murder his father and his only intention in conspiracy with his father was to falsely implicate Mohar Singh Yadav and Anil Yadav for commission of offence U/sec 307/34 IPC and for offence of robbery as alleged. In this scenario, when charge sheet against accused Pawan Singh Yadav has been filed for commission of offences U/sec 203/182/120B IPC, charge U/sec 307 IPC against accused Pawan Singh Yadav cannot be sustained. Accordingly, accused Pawan Singh Yadav is acquitted for commission of offence U/sec 307 IPC.
48. Charge against both accused persons was framed for commission of offences u/s 120B IPC, Section 201/120B IPC, Section 203/182/120B IPC.
49. As discussed earlier, initially FIR was lodged on complaint made by accused Pawan Singh Yadav u/s 307/34 IPC. Statement of accused Pawan Singh Yadav whereupon FIR was lodged is exhibited on record vide Ex. PW13/A.
50. IO in chargesheet has mentioned that during investigation, alleged party Mohar Singh Yadav and Anil were found sleeping in their house. IO further mentioned that on inquiry, it was found that Mohar Singh Yadav remained at his FIR No: 217/2005 PS: NFC Case Registration No. 1880/2016 Page No. 35....of 45 house for the whole day and he has no concern with incident in question. IO further mentioned that no person involved in the incident is generally found sleeping in the house. IO further mentioned that on inquiry, Mohar Singh Yadav told that accused Ajab Singh Yadav sold his land by forging his signatures and by affixing his photograph and on he objecting, accused Ajab Singh has tried to falsely implicate him in false cases. Mohar Singh Yadav told IO that he has got lodged FIR No. 63/05 PS Sihani Gate, Ghaziabad u/s 420/467/468/471/120 B IPC in this regard against accused Ajab Singh Yadav. Mohar Singh Yadav produced copy of FIR and documents concerning plots to IO which were taken into possession by IO vide Ex.PW2/A. IO concluded that accused Ajab Singh Yadav and Pawan Singh Yadav conspired and got lodged present false FIR against Mohar Singh Yadav and his son Anil in order to put them under pressure.
51. The documents handed over by PW2 Mohar Singh Yadav to IO were exhibited vide Ex.PW2/A1 to Ex.PW2/A26. PW2 deposed that IO verified the documents. PW2 only produced original revenue documents before Court but no certified copy of documents including order of ACJM, Ghaziabad and copy of FIR No. 63/05 PS Sihani Gate were produced by PW2 before Court and in these circumstances, these documents can not be said to have been proved before Court in accordance with law.
FIR No: 217/2005 PS: NFC Case Registration No. 1880/2016 Page No. 36....of 45
52. IO / PW13 in his deposition before Court deposed that as per instructions of SHO, he alongwith Special Staff officials of South Distinct went to Khoda in Noida as per address given by Pawan Singh Yadav where alleged Mohar Singh Yadav and his son were found present and were sleeping. He further deposed that during investigation, Mohar Singh Yadav told that accused Ajab Singh sold out their land by forging his signatures and that he got registered a case in this regard against Ajab Singh in Ghaziabad Police Station which is pending in Court of law. He deposed that Mohar Singh Yadav also revealed that accused Ajab Singh and Pawan Singh Yadav threatened him to falsely implicate him in false case. He deposed that even he was surprised that Mohar Singh Yadav and his son were sleeping at their house after this incident, so I instructed him to appear in PS NFC the next day alongwith documents. IO further deposed that accused Pawan Singh Yadav entered Toll Bridge at 19:28 p.m. as shown in Toll Tax receipt and it hardly takes five minutes to cross / cover DND Flyway by motorcycle and incident as per DD No. 14A occurred at 7:50 p.m., so he suspected version of Pawan Singh Yadav. He further deposed that his suspicion further strengthened by version of Pawan Singh that at the time of firing, he was at some distance from bullet whereas bullet as well as his shirt, both were blood stained. He deposed that on strength of suspicion, he called up Pawan Singh Yadav and interrogated him.
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53. IO appears to have reached at conclusion that false case was got lodged by Pawan Singh Yadav against Mohar Singh Yadav and his son Anil primarily in view of the fact that he found that both of them were found sleeping at their house after the incident when he went to their house and in view of the fact that DD No. 14A was lodged at 7:50 p.m., whereas as per Toll Tax Receipt, accused entered Toll Bridge at 7:28 p.m. His suspicion further got strengthened in view of version of Pawan Singh that at time of firing, he was at some distance from bullet whereas bullet as well as his shirt, both were blood stained.
54. IO / PW13 in order to show that alleged Mohar Singh Yadav and his son Anil were found sleeping at their house when he went to their house after lodging of FIR at instance of Pawan Singh Yadav has not cited any public witness in this regard. Rather, State has not examined any other witness who accompanied IO to house of alleged Mohar Singh Yadav and his son Anil immediately after lodging of FIR at instance of Pawan Singh Yadav. As per address of PW2 Mohar Singh Yadav as recorded in his examinationinchief, PW2 is resident of village Khoda, District Ghaziabad, UP. IO / PW13 in his crossexamination stated that he took permission from SHO before going to Khoda, UP at about 11 p.m. on the same night. He stated that he alongwith special staff members and Inspector went to Khoda, UP, however, today he does not remember names of officials of special staff who were with him. He further stated that they informed local police in Khoda orally FIR No: 217/2005 PS: NFC Case Registration No. 1880/2016 Page No. 38....of 45 when they reached there, however, today he does not remember name of police official to whom they informed about their arrival. He stated that they did not inform any neighbour as it was late night. He stated that he reached at Khoda in house of Mohar Singh Yadav between 12 / 12:30 in the midnight. He stated that he does not remember whether main gate of Mohar Singh Yadav's house was wooden or iron. He stated that after entry in the main gate of Mohar Singh Yadav's house, they met Mohar Singh Yadav first as he opened the door. He stated that he had not seen Mohar Singh Yadav as sleeping. He stated that Anil Yadav was sleeping at first floor with his children and after calling by his father, he came down before them. He stated that he had not made any DD entry when he visited police station at Khoda, UP. He stated that he can not say who is residing in the left and right side of house of Mohar Singh Yadav.
55. In absence of any independent witness or for that matter any official witness being examined with regard to factum of visit of IO / PW13 to house of alleged Mohar Singh Yadav and Anil on the night of alleged incident after lodging of FIR, in absence of any DD entry lodged by IO in this regard and in view of what has been stated by IO in his crossexamination as referred to in last para, I am of the view that whatever has been deposed by IO in his examinationinchief and as mentioned in chargesheet to the effect that alleged Mohar Singh Yadav and Anil Yadav were found sleeping in their house and that Mohar FIR No: 217/2005 PS: NFC Case Registration No. 1880/2016 Page No. 39....of 45 Singh Yadav was at his house for the whole day is not reliable and can not be believed to convict accused persons. From material brought on record, it can not be said to have been proved by State that indeed IO visited house of alleged Mohar Singh Yadav and Anil in the night after lodging of FIR and found them sleeping in their house.
56. IO in his examinationinchief deposed that he doubted version of Pawan Singh Yadav as Toll Tax Receipt shows time of 7:28 p.m. whereas incident as per DD No. 14A occurred at 7:50 p.m. and it hardly takes 5 minutes to cross / cover DND flyway by motorcycle.
57. Perusal of statement of Pawan Singh Yadav Ex.PW13/A shows that as per Pawan Singh Yadav, alleged Mohan Singh Yadav and his son Anil firstly abused them and thereafter, Anil fired on his father Ajab Singh and thereafter broke lock of dicky of his motorcycle and took out black bag which contained money and papers. Thereafter, Pawan Singh Yadav tied his handkerchief on arm of his father and tried to stop 2 / 3 vehicles but none stopped and thereafter, he called at 100 number. All this incident and chain of circumstances as narrated in Ex.PW 13/A must have taken bit of time and it is not that all these things happened within span of one minute and in case, intimation regarding alleged incident was given by Pawan Singh Yadav at around 8 p.m. after he crossing Toll Bridge at about 7:28 p.m. is not unnatural and can not be reason available FIR No: 217/2005 PS: NFC Case Registration No. 1880/2016 Page No. 40....of 45 to IO to disbelieve Pawan Singh Yadav. It is but natural that after incident of firing as alleged, it otherwise takes a bit of time to console oneself and first priority is to get help immediately to transport injured to hospital and thereafter, one may think of informing police. Thus, reasoning given by IO to arrive at conclusion which he arrived at appears to be totally faulty.
58. Further reasoning given by IO to arrive at conclusion that FIR was got lodged falsely by Pawan Singh Yadav and his father Ajab Singh in order to pressurize Mohar Singh Yadav and his son Anil in view of the fact that as per Pawan Singh, he was at some distance from bullet at the time of firing whereas both bullet and his shirt were blood stained. Bullet entered in arm of Ajab Singh and venous oozing is stated to be present in MLC of Ajab Singh and in these circumstances, bullet being found to be blood stained is not unnatural. Pawan Singh Yadav in his statement Ex.PW13/A has stated that he tied his handkerchief on arm of his father. Otherwise also, after his father suffering gun shot injury, a son can not be expected not to give support to his father and in this process, if blood is found on shirt of Pawan Singh Yadav, the same is not unnatural but quite natural. So, IO arriving at conclusion as arrived at by him on basis of bullet and shirt of Pawan Singh Yadav being found blood stained can be said to be faulty and it appears that IO reached at conclusion because he wanted to reach at.
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59. IO in order to reach at conclusion which he arrived at should have firstly verified contents of statement of Pawan Singh Yadav Ex.PW13/A. FIR in this case was lodged on 30.04.2005 after 8 p.m. and as per arrest memo of accused Pawan Singh Yadav Ex.PW13/E, IO arrested him on 01.05.2005 at 7 p.m. meaning thereby that IO reached at conclusion as mentioned in chargesheet within less than 24 hours of investigation which is quite surprising in itself. Pawan Singh Yadav in his statement Ex.PW13/A stated that alleged Mohar Singh Yadav and Anil came at the spot in Alto car. IO/PW13 in his crossexamination stated that he did not find it necessary to locate the Alto car (white colour). He further stated that he did not check CCTV footage and Toll Tax Receipt from their office as he did not deem it proper to collect the same as he did not find any role played by Mohar Singh Yadav and Anil Yadav in commission of offence in present case. IO in his crossexamination did not state that CCTV footage at Toll Tax or near place of occurrence was not available which implies that the same might be available but IO did not procure the same for reasons best known to him. IO could have easily verified from Toll Tax barrier as to whether any Alto car passed immediately before or after motorcycle of Pawan Singh Yadav passed from Toll Plaza. IO should have made efforts to at least inquire from alleged Mohar Singh Yadav and Anil Yadav as to whether they owned any Alto car of white colour or not. This course should have been normal course of investigation to be adopted by IO FIR No: 217/2005 PS: NFC Case Registration No. 1880/2016 Page No. 42....of 45 but IO reached at conclusion on assuming without any logical basis that false FIR was got lodged by accused Pawan Singh Yadav within short span of less than 24 hours from the time when FIR was got lodged by Pawan Singh Yadav. IO in his crossexamination stated that he does not know whether Mohar Singh Yadav gave GPA / Agreement to Sell to Pawan Kumar and Ajab Singh. He further stated that he did not verify from Vijay Basu that accused were going to deliver some money to him as during interrogation accused Pawan Kumar Yadav disclosed that he wrongly stated that he was going to meet Vijay Basu.
60. IO instead of verifying contents of complaint given by Pawan Singh Yadav believed on version of alleged without any logical basis which is totally incorrect in the circumstances when IO as per his crossexamination stated that he could not verify documents provided to him by Mohar Singh and Anil Yadav as he was transferred to other police station.
61. In subsequent opinion of injuries of accused Ajab Singh Ex.PW9/A, IO has specifically asked as to whether injury suffered by accused Ajab Singh is self inflicted to which doctor concerned has opined that possibility of injury being self inflicted can not be ruled out, however, other circumstantial evidences may be taken into consideration to arrive at logical conclusion. In circumstances of present case as discussed above, I am of the view that it can not be said with certainty that FIR No: 217/2005 PS: NFC Case Registration No. 1880/2016 Page No. 43....of 45 injury suffered by accused Ajab Singh was self inflicted.
62. In view of my discussion as made above, I am of the view that version of prosecution for sustaining charge u/s 120B IPC, u/s 201/120B IPC and u/s 203/182/120B IPC against accused persons is not credible enough and accused can not be convicted for these offences in these circumstances.
63. Charge u/s 25/27 Arms Act was also framed against accused Pawan.
64. Pointing out and recovery memo of accused Pawan Singh Yadav with regard to recovery of alleged desi katta at instance of accused Pawan Singh Yadav has been exhibited on record vide Ex.PW3/B. Perusal of Ex.PW3/B shows that it is somehow adjusted in single page. Last eight lines of Ex.PW 3/B shows that they have been written in a very compressed manner viz a viz rest of contents of the same. PW3 Harish Bhardwaj is independent witness on this recovery memo. He in his crossexamination has stated that since he was guiding the traffic, he cannot say if anyone from accused persons was present there. Perusal of recovery memo Ex.PW3/B shows that it bears signatures of accused Pawan Singh Yadav upon it and PW3 saying that he can not say if anyone from accused persons was present there makes recovery of alleged desi katta at instance of accused Pawan Singh Yadav doubtful in the circumstances when swimmer / gotakhor who brought out the same from Yamuna river was not examined by prosecution. In FIR No: 217/2005 PS: NFC Case Registration No. 1880/2016 Page No. 44....of 45 these circumstances, I am of the view that prosecution has not been able to prove recovery of alleged desi katta at instance of accused Pawan Singh Yadav and accused Pawan Singh Yadav can not be in these circumstances convicted for commission of offence u/s 25 Arms Act. For conviction of accused Pawan Singh Yadav for commission of offence u/s 27 Arms Act, I am of the view that in view of my discussion made earlier in this judgment, use of desi katta by accused Pawan Singh Yadav is doubtful and so, accused Pawan Singh Yadav is further acquitted for commission of offence u/s 27 Arms Act.
65. From my abovemade discussion, I am of the view that as such prosecution evidence does not inspire sufficient confidence so as to test factual matrix of present case on ingredients of offences with which accused persons in present case have been charged and it can be said that prosecution has failed to prove its case beyond reasonable doubt against accused persons and accused persons deserve to be acquitted in this case. Accused persons are accordingly acquitted for offences U/sec 120B/201/120B IPC and Section 203/182/120B IPC and accused Pawan Singh Yadav is also acquitted for commission of offences U/sec 307 IPC and Section 25/27 Arms Act. File be consigned to Record Room.
Dictated and Announced
in open Court on 30.09.2022 (Sonu Agnihotri)
ASJ03 (South East),
Saket Courts, New Delhi
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