Delhi District Court
State vs . (1). Salim @ Harun Pasa on 29 April, 2015
FIR No. 403/10; U/s 307/394/34 IPC & Sec. 25/27 Arms Act; PS Vijay Vihar D.O.D. 29.04.2015 IN THE COURT OF SHRI VIDYA PRAKASH: ADDL. SESSIONS JUDGE04 (NORTH): ROHINI COURTS: DELHI Session Case No. 61/14 Unique Case ID No. 02404R0077392012 State Vs. (1). Salim @ Harun Pasa S/o Mohd. Ali R/o VPO Hazipur Asmola, Distt. Muradabad, U.P. (2) Imran Khan S/o Akran Khan R/o H. No. B41/3, Dilshad Colony, Seemapuri, Delhi. FIR No. : 403/10 Police Station : Vijay Vihar Under Sections : 307/394/34 IPC & Sec. 25/27 Arms Act Date of committal to Sessions Court: 08.06.2011 Date on which judgment was reserved: 25.04.2015 Date on which Judgment pronounced: 29.04.2015 JUDGMENT
BRIEF FACTS OF THE CASE
1. The case of the prosecution as born out from the record is as under under:
(i) That on 26.11.2010 at about 11.16 P.M, intimation was received in PS Vijay Vihar regarding apprehension of one thief. The said information was recorded vide DD no. 95B and same was State Vs Salim @ Harun Pasa etc. ("Convicted") Page 1 of 48 FIR No. 403/10; U/s 307/394/34 IPC & Sec. 25/27 Arms Act; PS Vijay Vihar D.O.D. 29.04.2015 entrusted to SI Virender Singh (PW18) for appropriate action. Accordingly, SI Virender Singh alongwith Ct. Manoj (PW7) reached the place of information, where they met complainant Neeraj Aggarwal (PW2), Satish Aggarwal (PW4), Hemant Kumar (PW1) and Mohd Aamir (PW6). The complainant Neeraj Aggarwal alongwith his brother Satish Aggarwal produced accused Salim @ Harun Pasa before SI Virender Singh and claimed that he was one of the offenders who had been apprehended by them while his other associate managed to flee away from the spot;
(ii) SI Virender Singh got the accused Salim @ Harun Pasa and complainant Neeraj Aggarwal medically examined from BSA Hospital and returned back to the spot, where he recorded police statement (Ex.PW2/A) of complainant Neeraj Aggarwal and got the FIR registered through Ct. Manoj. The scene of crime was also got photographed through private photographer. After registration of FIR, investigation was entrusted to SI Virender Singh who prepared site plan (Ex.PW18/B) at the instance of complainant. SI Virender Singh also seized one piece of led of bullet from wooden rack of the shop of complainant. He also prepared rough sketch (Ex.PW18/C) of said recovered led and prepared its cloth pullanda which was sealed with the seal of SS. He also arrested accused Salim @ Harun Pasa who made disclosure statement before him;
State Vs Salim @ Harun Pasa etc. ("Convicted") Page 2 of 48 FIR No. 403/10; U/s 307/394/34 IPC & Sec. 25/27 Arms Act; PS Vijay Vihar D.O.D. 29.04.2015
(iii) It is further case of prosecution that IO SI Virender Singh also seized motorcycle bearing registration no. DL7SAG 5808 from outside the shop of complainant. He also seized one black colour bag from inside the said shop;
(iv) It is further case of prosecution that on 28.11.2010, accused Salim @ Harun Pasa led the police officials to the house of co accused Imran Khan situated at Dilshad Colony, Seema Puri Delhi, where from accused Imran Khan was also apprehended from his house situated at second floor of H. No. D41, Dilshad Colony, on the identification of accused Salim @ Harun Pasa. Accused Imran Khan also made disclosure statement (Ex.PW18/F) and got recovered one pistol (Ex.P6) containing three live cartridges and one cartridge shell from wooden bed lying in the room of his house. SI Virender Singh carried out necessary proceedings with regard to recovered cartridges and sealed them with the seal of SS, after preparing their cloth pullanda.
(v) It is further case of prosecution that relevant exhibits were got deposited in FSL, Rohini on 17.01.2011 and opinion regarding the nature of injuries were obtained on the MLC (Ex.PW3/A) of complainant Sh. Neeraj Aggarwal. FSL result was also obtained and thereafter, sanction U/s 39 Arms Act to prosecute accused Imran Khan, was also obtained through concerned Additional DCP.
State Vs Salim @ Harun Pasa etc. ("Convicted") Page 3 of 48 FIR No. 403/10; U/s 307/394/34 IPC & Sec. 25/27 Arms Act; PS Vijay Vihar D.O.D. 29.04.2015
(vi) It is further case of prosecution that IO SI Virender Singh had also recorded statements U/s 161 Cr.P.C. of prosecution witnesses. After completion of investigation, charge sheet was prepared and same was filed before the Court through concerned SHO.
(vii) After compliance of section 207 Cr.P.C., the case was committed to the Court of Sessions and was assigned to Ld. Predecessor of this Court.
CHARGES FRAMED AGAINST THE ACCUSED PERSONS
2. After hearing arguments on the point of charge, Ld. Predecessor of this Court was pleased to frame the charges u/s 307/393/394/34 IPC against both the accused persons namely Salim @ Harun and Imran Khan and separate charges in respect of offences punishable U/s 398 IPC and Section 25/27 Arms Act were also framed against accused Imran Khan vide order dated 28.07.2011, to which accused persons pleaded not guilty and claimed trial.
3. In support of its case, prosecution has examined eighteen witnesses namely PW1 Hemant Kumar @ Happy, PW2 Neeraj Aggarwal, PW3 Dr. Deepti Bhalla, PW4 Satish Aggarwal, PW5 Sh. Shyam, PW6 Mohd. Amir, PW7 Ct. Manoj Kumar, PW8 ASI Pradeep Kumar, PW9 Ct. Dinesh, PW10 Ct. Pravesh, PW11 HC Sukhbir, PW12 Ct. Inder Singh, PW13 Ct. K.M. Sayad, PW14 SI Deepak Malik, PW15 HC Satender, PW16 Ct. Sunil Kumar, PW17 HC Ram Singh and PW18 SI Virender Singh during trial. State Vs Salim @ Harun Pasa etc. ("Convicted") Page 4 of 48 FIR No. 403/10; U/s 307/394/34 IPC & Sec. 25/27 Arms Act; PS Vijay Vihar D.O.D. 29.04.2015
4. Thereafter, statements U/s 313 Cr.P.C. of both the accused persons namely Salim @ Harun Pasa and Imran Khan were recorded during which all the incriminating evidence which came on record, were put to them which they denied. Both the accused persons claimed that they are innocent and have been falsely implicated in this case.
Accused Salim @ Harun Pasa claimed in his statement that he was a rickshaw puller and on the day of incident in question, he had gone to Sector1, Avantika Rohini for dropping some passengers at about 10.00/10.30 pm. After dropping the passenger, he was taking rest on his cycle rickshaw. In the meantime, he had heard noise of public persons who were chasing someone on which he also went there in order to know as to what had happened. Those public persons, however, apprehended him under mistaken identity under the impression that he was the thief and handed over his custody to the police.
Accused Imran Khan claimed in his statement that he was a student during the relevant time and he had gone to the house of his in laws situated in Shahbad Dairy. Some police official of said PS came there and forcibly took him to PS Vijay Vihar on the pretext of making some enquiry from him in some case and forcibly obtained his signatures on certain blank papers in the PS and also got him falsely implicated in the present case. However, both the accused persons opted not to lead any evidence towards their defence.
5. I have already heard Sh. Pankaj Bhatia, Ld. Additional PP on behalf of State and Ld. counsel Sh. S.K. Sharma, Adv. on behalf of both the State Vs Salim @ Harun Pasa etc. ("Convicted") Page 5 of 48 FIR No. 403/10; U/s 307/394/34 IPC & Sec. 25/27 Arms Act; PS Vijay Vihar D.O.D. 29.04.2015 accused persons. I have also gone through the material available on record.
6. Before discussing the rival submissions made on behalf of both the sides, it would be appropriate to discuss, in brief, the testimonies of prosecution witnesses which have come on record. The said testimonies are detailed as under: PUBLIC WITNESSES
7. PW1 Sh. Hemant Kumar @ Happy: As per the case of prosecution, this witness is one of the eye witnesses to the occurrence. He deposed on the lines of prosecution story by testifying that on 26.11.2010 at about 10.30 pm, while he was present in the shop of Aggarwal Cloth House situated at B488, Sector1, Avantika, Rohini besides owners namely Neeraj Aggarwal and Satish Aggarwal and another employee namely Mohd. Amir, both the accused herein came on Hero Honda Hunk of black colour and asked Neeraj Aggarwal to show clothes for coat and pant. When Neeraj Aggarwal told them that it was time for closing the shop, they started quarreling with them.
He further deposed that accused Salim took out pistol from his jacket and pointed at Satish Aggarwal and asked him to hand over whatever cash and jewellery they were having at that time. Scuffling took place between them and they managed to apprehend accused Salim during the said process. Accused Imran ran away from the spot while firing at Satish Aggarwal but the bullet hit the rack of the shop. Both the accused were wearing helmets but still, he had seen their faces.
State Vs Salim @ Harun Pasa etc. ("Convicted") Page 6 of 48 FIR No. 403/10; U/s 307/394/34 IPC & Sec. 25/27 Arms Act; PS Vijay Vihar D.O.D. 29.04.2015 In his cross examination, he deposed that he was employed in the said shop for last 1½ years prior to occurrence. Public persons had gathered at the shop within 510 minutes of the incident. Neeraj Aggarwal was still present at the shop when he had left the shop after the incident. The accused were not wearing any mask. He came to know about the name and other particulars of the accused after the incident. His statement was recorded only once by the police on 27.11.2010.
8. PW2 Sh. Neeraj Aggarwal: He is the complainant in this case. He deposed that he was running shop under the name and style of Aggarwal Cloth House at plot no. B488, Sector1, Avantika Market, Rohini. On 26.11.2010 at about 10.30 pm, when he alongwith his younger brother Satish Aggarwal and two employees namely Amir and Happy were present at the said shop and were about to close the shop, both the accused herein came on Hero Honda motorcycle bearing No. DL7SAG5808 of black colour. They had wrapped their faces with hanky and were wearing helmets. They asked them to show material for coat and pant and when they expressed inability to do so as it was closing time, they started abusing them and also scuffled with them. Accused Imran took out revolver and asked them to hand over whatever cash and jewellery was available. Accused Imran also hit with butt of his revolver on his head at the asking of accused Salim.
He further deposed that accused Salim was apprehended by them at the spot whereas accused Imran managed to flee away after firing at his younger brother Satish Aggarwal but the bullet hit at the shelf of the shop. Public persons including his father came to the spot. His father made PCR State Vs Salim @ Harun Pasa etc. ("Convicted") Page 7 of 48 FIR No. 403/10; U/s 307/394/34 IPC & Sec. 25/27 Arms Act; PS Vijay Vihar D.O.D. 29.04.2015 call on which police reached there and seized one handbag and one helmet of accused in broken condition vide memo Ex.PW2/E, from the spot. The motorcycle of accused persons which was parked at little distance from the shop, was also seized by the police vide memo Ex.PW2/D. His statement Ex.PW2/A was also recorded by the police.
He further deposed that police had seized cloth thaan (Roll) which was hit by firing of bullet, the relevant piece of wooden rack having hole created due to hitting of bullet and one small led piece of bullet vide seizure memos Ex.PW2/B, Ex.PW2/B1 and Ex.PW2/C respectively.
He further deposed that accused Salim was arrested and his personal search was conducted by the police vide memo Ex.PW2/F and Ex.PW2/G respectively. After two days, accused Imran was also arrested. He had visited PS Vijay Vihar where he had identified accused Imran.
The witness also identified the case property i.e. red and black colour helmet Ex.P1, cloth roll Ex.P2, wooden piece Ex.P3, lead piece Ex.P4 and control sample of wooden piece Ex.P5 during trial. He also identified both the accused during trial.
In his cross examination, he deposed that he is the owner of the said shop and was an income tax assessee. The scuffle had continued for 1015 minutes. He had sustained injuries on his head due to hitting of butt of revolver by the accused. PCR van had reached the spot somewhere around 11.15 pm. He alongwith his younger brother and father as well as Pradhan of Market Association had gone to PS from where he was taken to BSA Hospital for medical examination. After medical examination, he had returned back to State Vs Salim @ Harun Pasa etc. ("Convicted") Page 8 of 48 FIR No. 403/10; U/s 307/394/34 IPC & Sec. 25/27 Arms Act; PS Vijay Vihar D.O.D. 29.04.2015 PS where he remained upto 5/5.30 am. He had signed the relevant memos in the PS.
9. PW4 Sh. Satish Aggarwal: He is the brother of the complainant. He also deposed on identical lines as deposed by PW2 Neeraj Aggarwal, during his chief examination. He also correctly identified both the accused herein to be the assailants involved in the commission of offence.
In his cross examination, he deposed that several public persons and neighbouring shop keepers had collected there after the incident. No one dared to chase accused Imran as he was having revolver in his hand. He alongwith his brother Neeraj Aggarwal and father had gone to PS where he had identified accused Imran.
10. PW5 Sh. Shyam: This witness was running photo studio in the name and style of Jyoti Photo Studio at Plot No. B688, Sector1, Avantika, Rohini. He deposed that on 26.11.2010 at about 10.45 pm, he was called by the owner of Aggarwal Cloth House at plot no. B488, Sector1, Avantika, Delhi and had taken five photographs of the spot from different angles and after developing the same, he had handed over the same to Aggarwal Cloth House. He exhibited said photographs as Ex.PW5/A1 to Ex.PW5/A5.
In his cross examination, he deposed that Sh. Vinod Saini is the owner of said photo studio and he was doing job at said shop. He further deposed that he had taken the photographs of the spot from different angles and he had narrated the said fact to his owner. The record pertaining to photography has to be maintained in the computer and that could be taken out into CD. He was not sure whether bill was issued in respect of those State Vs Salim @ Harun Pasa etc. ("Convicted") Page 9 of 48 FIR No. 403/10; U/s 307/394/34 IPC & Sec. 25/27 Arms Act; PS Vijay Vihar D.O.D. 29.04.2015 photographs or not.
11. PW6 Mohd. Amir: This witness is another employee who was present at the time of incident in question, in the shop. He supported the case of prosecution to the extent that two boys had visited the shop at about 10.30 pm on 26.11.2010 and they were wearing black jackets and were carrying bag. However, he claimed that he had not seen faces of said two boys. He claimed that he had gone upstairs and when he came back, he noticed that there was crowd at the shop and one boy was apprehended.
This witness was cross examined by Ld. Additional PP as he was resiling from his previous statement but still, he did not identify any of the accused persons. However, he admitted during cross examination that he had some dispute with Satish Aggarwal on the issue of timings due to which he had left their job. He admitted that both the accused were belonging to his Biradari.
This witness has not been cross examined by accused despite grant of opportunity.
POLICE WITNESSES
12. PW8 ASI Pradeep Kumar: He deposed that on 30.11.2010, he alongwith SI Virender had joined investigation of the present case. On that day, SI Virender had recorded disclosure statements of accused Imran. He proved the said disclosure statements as Ex.PW8/A and Ex.PW8/B. He further deposed that accused Imran led them to the house of Ved Prakash Rana situated at Village Shahbad Daulat Pur and from there, he got recovered State Vs Salim @ Harun Pasa etc. ("Convicted") Page 10 of 48 FIR No. 403/10; U/s 307/394/34 IPC & Sec. 25/27 Arms Act; PS Vijay Vihar D.O.D. 29.04.2015 one transparent plastic box containing 55 sets of artificial jewellery. The said case property was sealed with the seal of SS and was taken into possession vide memo Ex.PW8/C. It may be noted here that the aforesaid 55 sets of artificial jewellery did not pertain to this case as same was the stolen property involved in some other case.
He further deposed that on 03.12.2010, he again joined investigation of this case with IO SI Virender. On that day, accused Imran had made another disclosure statement Ex.PW2/D whereby he had disclosed the address of his coaccused.
He denied relevant suggestions put to him during cross examination from the side of accused persons.
13. PW9 Ct. Dinesh: This witness was posted as Beat Constable in the area of Dilshad Colony falling in the jurisdiction of PS Seema Puri on 28.11.2010. He deposed that on that day at about 9.00 pm, he joined investigation of the present case on the request of IO SI Virender Singh of PS Vijay Vihar and accompanied the police party to House No. B41, Dilshad Colony wherefrom accused Imran Khan S/o Sh. Akram Khan was arrested and relevant documents were prepared in this regard. Said accused Imran Khan got recovered one pistol from bed lying in the room of his house situated on second floor. On checking, the said pistol was found containing three live cartridges and one fired round. IO had prepared their rough sketch Ex.PW9/A and prepared their pullanda after keeping them in plastic bag and sealed the same with the seal of SS and seized the said pullanda vide memo State Vs Salim @ Harun Pasa etc. ("Convicted") Page 11 of 48 FIR No. 403/10; U/s 307/394/34 IPC & Sec. 25/27 Arms Act; PS Vijay Vihar D.O.D. 29.04.2015 Ex.PW9/B. He also identified the said pistol as Ex.P6 and cartridges as Ex.P7 (colly.) during trial.
In his cross examination, he denied the suggestion that he was present with IO SI Virender Singh since 5.00 P.M of 28.11.10 in PS Vijay Vihar. Premises number B41 was having three floors. SI Virender Singh had requested 34 public persons to join the raiding party but all refused. Mother and sister of accused Imran Khan were present there. Accused Imran Khan was arrested at about 10.30 PM on that day and signature of mother of said accused was also obtained on his arrest memo.
In response to the Court question, the witness clarified that the house of accused Imran Khan was situated on the third story (second floor). He denied the suggestion that recovered pistol was belonging to him or that same was planted upon accused Imran Khan in PS Vijay Vihar. His statement was recorded at the spot. He denied the relevant suggestions put to him on behalf of accused persons.
14. PW10 Ct. Pravesh: He deposed that on 28.11.2010, he alongwith SI Virender Singh had joined the investigation of the present case. Accused Salim @ Harun was in the custody of IO at that time. He further deposed that on the identification of accused Salim @ Harun, accused Imran Khan was arrested from his house i.e. B41/3, Dilshad Colony, Seemapuri vide arrest memo Ex.PW10/A and his personal search was conducted vide memo Ex.PW10/B. During his cross examination, he deposed that on 28.11.2010, he alongwith SI Virender had visited PS South Rohini in connection with this State Vs Salim @ Harun Pasa etc. ("Convicted") Page 12 of 48 FIR No. 403/10; U/s 307/394/34 IPC & Sec. 25/27 Arms Act; PS Vijay Vihar D.O.D. 29.04.2015 case at 6.30 pm. Nothing was recovered from the personal search of accused Imran. They had left PS Vijay Vihar at about 5.50 pm and they were in Tata 407, but he did not remember the registration number of said Tata 407. It was a govt. vehicle driven by HC Sukhbir.
He further deposed that he did not ask any official of PS South Rohini to make any entry regarding taking out accused Salim @ Harun Pasa from the lock up. They straightway went to the house of accused Imran Khan from PS South Rohini. The house of accused Imran was a flat situated on third floor of H.No. B41/3, Dilshad Colony, Seemapuri. He did not notice anybody outside the flat on ground, first and second floor. IO did not ask any person from the residents of ground, first and second floor to join the proceedings. IO had tried with the persons of second floor to join the proceeding but none opened the door. When they reached the house of accused Imran, accused Imran, his wife, mother and younger sister were present there. IO did not record the identification statement of accused Harun Pasha.
He further deposed that when accused Imran Khan was coming down from the roof, he tried to flee and fell in the stairs. SI Virender, HC Sukhbir, HC Pradeep and Ct. Dinesh caught him.
He further deposed that after 28.11.2010, he visited the house of accused Imran to deliver the summons. He denied the relevant suggestions put to him on behalf of accused persons.
15. PW11 HC Sukhbir: This witness had joined investigation of the case with IO SI Virender Singh besides HC Pardeep, Ct. Suresh and Ct. State Vs Salim @ Harun Pasa etc. ("Convicted") Page 13 of 48 FIR No. 403/10; U/s 307/394/34 IPC & Sec. 25/27 Arms Act; PS Vijay Vihar D.O.D. 29.04.2015 Parvesh on 28.11.2010. He deposed that on that day, all of them alongwith accused Salim @ Harun Pasa went to house no. B41, Dilshad Colony, Seema Puri in government vehicle and arrested accused Imran Khan on the identification of accused Salim from his house. He also deposed on identical lines as deposed by PW9 Ct. Dinesh with regard to recovery of pistol, three live cartridges and one empty cartridge at the instance of accused Imran Khan from bed lying in the room of his house situated on second floor and the relevant writing work carried out at the spot. He also identified the said pistol and cartridges during trial.
In his cross examination, he deposed that he had joined investigation at about 6.30/7.00 pm in PS Vijay Vihar on that day. The registration number of government vehicle i.e. Tata 407 was DL1LK9517 which was driven by him. Log Book of the said vehicle was maintained by the regular driver who was not available in PS at that time. He had driven the said vehicle after seeking oral permission from concerned SHO. He did not made entry in the Log Book in this regard. Accused Salim @ Harun Pasa was not made witness in the arrest of accused Imran Khan. Seal after use was handed over to him. He had signed on the relevant seizure memo and disclosure statement of accused Imran Khan. He denied the relevant suggestions put to him.
16. PW12 Ct. Inder Singh: He deposed that on 17.01.2011, as per instructions of IO, he had collected two sealed parcels from MHC(M) vide RC no.1268585 and deposited the same in FSL, Rohini and had deposited the copy of acknowledgment with concerned MHC(M). This witness has not been State Vs Salim @ Harun Pasa etc. ("Convicted") Page 14 of 48 FIR No. 403/10; U/s 307/394/34 IPC & Sec. 25/27 Arms Act; PS Vijay Vihar D.O.D. 29.04.2015 cross examined by accused despite grant of opportunity.
17. PW13 Ct. K.M Sayad: This witness deposed that on 26.11.2010, he was on night duty in his beat area of Sector 1, Avantika, Rohini. On that day at about 10.20 P.M, when he was patrolling in the area of his beat and reached at Avantika Main Road near Aggarwal Cloth Shop No. B488, he noticed gathering of public persons on which he went there and came to know that attempt of robbery was made. Accused Salim @ Harun Pasa was in the custody of SI Virender Singh and Ct. Manoj. He was asked by SI Virender Singh to stay back at the spot and he alongwith Ct. Manoj went to BSA hospital alongwith accused Salim @ Harun Pasa in PCR Van. After sometime, both the said police officials alongwith accused Salim @ Harun Pasa came back to the spot. Crime team was also called at the spot and photographs were taken by private photographer. Thereafter, accused Salim @ Harun Pasa was arrested in his presence.
He further deposed that SI Virender Singh had also seized one bullet led from the rack, the relevant piece of wooden rack and thaan of cloth (sack) of cloth vide memo Ex.PW2/B. He also seized one helmet vide memo Ex.PW2/C and motorcycle no. DR7AG5808 vide memo Ex.PW2/D. He further deposed that SI Virender Singh had also recorded statements of three public persons namely Hemant, Satish Aggarweal and Mohd. Aamir and thereafter, they had returned back to PS. He further deposed that he alongwith IO SI Virender Singh and Ct. Manoj made efforts for search of co accused Imran Khan and also conducted raid at house no. 12, Shahbad Daultpur, Delhi but the said house State Vs Salim @ Harun Pasa etc. ("Convicted") Page 15 of 48 FIR No. 403/10; U/s 307/394/34 IPC & Sec. 25/27 Arms Act; PS Vijay Vihar D.O.D. 29.04.2015 was found locked.
In his cross examination, he deposed that he was on 24 hours duty on that day and was patrolling on his official motorcycle. Accused Salim@ Harun Pasa was taken to BSA hospital after 11.00 pm. Aggarwal Cloth House was situated at a distance of about 100 meters from the beat. SI Virender Singh had informed that attempt to robbery was committed. He left the spot at about 12.301.00 am (night). He denied the relevant suggestions put to him on behalf of accused persons.
18. PW14 SI Deepak Malik: This witness was posted as Incharge of Mobile Crime Team (OD) on 27.11.2010. He deposed that on receipt of wireless message, he alongwith other Crime Team staff reached at the spot i.e. B488, Sector1, Avantika Market, Rohini at about 12.20 am. He further deposed that he had inspected the spot and prepared crime team report Ex.PW14/A. During cross examination, he deposed that he had prepared his report after about one hour of his reaching to the spot. Concerned SHO, IO and other local staff were also present there. He returned back to office at about 1.30 am. Relevant departure and arrival entries were also made in the roznamcha in this regard. He denied the relevant suggestions put to him by both the accused persons.
19. PW15 HC Satender: He is the Duty Officer. He has proved factum regarding registration of FIR No. 403/10. He proved copy of said FIR as Ex.PW15/A and his endorsement Ex.PW15/B made on the rukka. He also proved the certificate U/s 65B of Indian Evidence Act as Ex.PW15/C. State Vs Salim @ Harun Pasa etc. ("Convicted") Page 16 of 48 FIR No. 403/10; U/s 307/394/34 IPC & Sec. 25/27 Arms Act; PS Vijay Vihar D.O.D. 29.04.2015 During cross examination, he could not recall the name of CIPA Incharge who had recorded the FIR on computer. He deposed that he cannot tell the exact time when Ct. Manoj had left with copy of FIR and original rukka. He denied relevant suggestions put to him during cross examination.
20. PW16 Ct. Sunil Kumar: This witness was working as DD Writer in PS Vijay Vihar on 26.11.2010. He deposed that on that day at about 11.16 am, wireless operator gave information that one thief was apprehended at B488, Avantika, Sector1, Rohini. He recorded the said information vide DD no. 94 and handed over copy thereof to SI Virender for appropriate action. He proved the attested copy of said DD entry as Ex.PW16/A. During cross examination, he deposed that they were not informed about the name of the persons who had given information in the Control Room regarding the incident. He had informed IO SI Virender Singh on telephone regarding the incident and requested him to join the investigation. He denied the relevant suggestions put to him during cross examination.
21. PW17 HC Ram Singh: This witness was working as MHC(M) in PS Vijay Vihar during the relevant period. He deposed that on 17.12.2010, HC Sukhbir had made entries in register no. 19 and exhibited the same as Ex. PW17/A. He further deposed that on 15.01.2011, SI Virender Singh had deposited one pullanda duly sealed with the seal of SS in the Malkhana vide serial no. 16/11 and proved copy of said entry as Ex. PW17/B. On 17.01.2011, State Vs Salim @ Harun Pasa etc. ("Convicted") Page 17 of 48 FIR No. 403/10; U/s 307/394/34 IPC & Sec. 25/27 Arms Act; PS Vijay Vihar D.O.D. 29.04.2015 five pullandas duly sealed with the seal of SS alongwith sample seal were deposited at FSL by Ct. Inder Singh vide RC No. 3/21/11. He proved copy of said RC as Ex.PW17/C and also proved the copy of acknowledgment of FSL as Ex.PW17/D. He deposed that on 18.01.2011, two sealed pullandas were sent to PS Maurya Enclave through Ct. Vipin vide RC no. 2/21/11. He proved the copy of said RC as Ex. PW2/I. He further deposed that on 13.12.2010, one motorcycle bearing no. DL7SAG 5808 was deposited in the Malkhana of PS I.P Estate through ASI Khurshid Ali by HC Sukhbir vide RC no. 222/21/10. He proved copy of said RC as Ex. PW2/H. The said witness has not been cross examined by the accused persons despite grant of opportunity.
22. PW7 Ct. Manoj & PW18 SI Virender Singh: Out of these two witnesses, PW18 is IO of the case and PW7 had accompanied PW18 to the place of information on receipt of DD no. 94B at about 11.16 pm on 26.11.2010. Both these witnesses deposed almost on identical lines during their chief examination.
They deposed that both of them had reached the place of information i.e. B488, Avantika Sector1, Rohini Delhi after receipt of copy of DD no. 94B Ex. PW16/A, where they met complainant Neeraj Aggarwal, his brother Satish Aggarwal and two employees. Custody of accused Salim @ Harun Pasa was handed over to them. In the meantime, Beat Ct. K.M. Syeed also reached there. Ct. K.M. Syeed was left at the spot whereas both of them alongwith complainant Neeraj Aggarwal and accused Salim went to BSA State Vs Salim @ Harun Pasa etc. ("Convicted") Page 18 of 48 FIR No. 403/10; U/s 307/394/34 IPC & Sec. 25/27 Arms Act; PS Vijay Vihar D.O.D. 29.04.2015 hospital for their medical examination. In between, message was given to Crime Team for reaching at the spot. After medical examination of complainant and accused Salim, statement Ex.PW2/A of complainant was recorded on the basis of which FIR in question was got registered through PW7. PW18 alongwith complainant and accused Salim @ Harun Pasa returned back to the spot, where Crime Team had also arrived and inspected the spot. Private photographer was also called who took five photographs Ex.PW5/A1 to Ex.PW5/A5, on his instructions.
They further deposed about the relevant proceedings carried out at the spot including seizure of one piece of led of bullet through wooden rack of the shop, relevant portion of wooden rack having hole of bullet, one cloth thaan (roll) of Mehroon colour having hole due to passing of bullet in it, seizure of helmet as well as of motorcycle no. DL7SAG5808, etc. as also about the relevant writing work carried out in that regard.
They further deposed that on 27.12.2010, they again joined investigation of the case alongwith Ct. K.M. Syeed and made efforts for search of co accused Imran Khan and visited House no. 12, Shahbad Daulatpur, Delhi but accused Imran Khan could not be arrested.
PW18 further deposed that on 28.11.2010, he alongwith HC Sukhbir, HC Pardeep, Ct. Suresh, Ct. Parvesh and accused Salim @ Harun Pasa went to house no. B41, Dilshad Colony, Seema Puri in government vehicle Tata 407 and one Ct. Dinesh of PS Seema Puri was also got joined in the said proceedings. He further deposed that accused Imran Khan was apprehended from his house situated on second floor of the said property at State Vs Salim @ Harun Pasa etc. ("Convicted") Page 19 of 48 FIR No. 403/10; U/s 307/394/34 IPC & Sec. 25/27 Arms Act; PS Vijay Vihar D.O.D. 29.04.2015 the instance of accused Salim. Accused Imaran Khan got recovered one pistol containing three live cartridges and one cartridge shell in it. PW18 also deposed about the relevant proceedings carried out in respect of recovered arms and ammunition at the said place.
PW18 further deposed that on 30.11.2010, accused Imran Khan made disclosure statements Ex.PW8/A and PW8/B and he alongwith accused Imran Khan went to Kanpur in search of one Satish from whom he claimed to have purchased recovered arms and ammunition. On 30.11.2010, accused Imran Khan also led police party to the house of Ved Parkash Rana at village Shahbad wherefrom he got recovered one plastic box found containing 55 artificial necklaces. PW18 further deposed that on 03.12.10, accused Imran Khan made supplementary disclosure statement Ex.PW8/D and thereafter, he made efforts to search for Satish but in vain.
PW18 further deposed that on 15.01.11, he had seized three inches wooden piece got separated from rack of the shop of complainant, as control sample and prepared their pullanda sealed with the seal of SS. On 17.01.2011, relevant exhibits were sent to FSL through Ct. Inder and after receipt of FSL result dt. 08.04.2011 Ex. PX, same was filed before the Court.
He further deposed that he also obtained sanction U/s 39 of Arms Act Ex.PW18/H from concerned Additional DCP (OD) qua accused Imran Khan and filed the same before the Court. Accused Satish was declared proclaimed offender in the present case.
Both the witnesses identified the relevant case property consisting of helmet Ex P1, cloth roll of mehroon colour Ex.P2, wooden piece State Vs Salim @ Harun Pasa etc. ("Convicted") Page 20 of 48 FIR No. 403/10; U/s 307/394/34 IPC & Sec. 25/27 Arms Act; PS Vijay Vihar D.O.D. 29.04.2015 Ex.P3, led piece of bullet Ex.P4, wooden piece separated from rack and described as control sample Ex.P5, during trial.
In his cross examination, PW7 deposed that his statement was recorded only once in the present case. They had left for the spot at about 10.30/10.40 PM on private motorcycle on the date of incident and had reached there at about 10.50 PM. IO had recorded statements of 23 persons besides complainant Neeraj Aggarwal in his presence before sending rukka. All the relevant articles were seized by police before sending of rukka. He denied the relevant suggestions put to him.
23. Initially, accused preferred not to cross examine PW18 despite grant of opportunities but subsequently, PW18 was recalled U/s 311 Cr.P.C. vide order dt. 30.01.2014 on the request of accused persons.
In his cross examination, PW18 deposed that intimation about DD no. 94B was received by him at about 11.15 pm through telephone from Duty Officer when he was present in the area of PS Vijay Vihar. He visited PS Vijay Vihar where he was handed over copy of said DD entry. They had gone to the spot on private motorcycle at about 11.35 pm and almost all the shops were lying closed at that time. 2025 public persons were found present at the spot. He had made inquiries from them but did not record their statements. The Crime Team headed by SI Deepak, had reached the spot at about 12.00 mid night in official vehicle. They had gone to BSA hospital in private car arranged by the complainant. They had reached the hospital at about 11.50 pm and after medical examination, they had left the hospital at about 12.30 am. Ct. Manoj had returned back directly from the spot at about State Vs Salim @ Harun Pasa etc. ("Convicted") Page 21 of 48 FIR No. 403/10; U/s 307/394/34 IPC & Sec. 25/27 Arms Act; PS Vijay Vihar D.O.D. 29.04.2015 1.15/1.30 am. The private photographer was called through one beat constable on night patrolling duty in the area, who was asked by him through telephone to arrange for some photographer. However, said beat constable was not joined in the investigation. The wooden piece of rack was cut by him with the help of aari, which was brought by beat constable from PS on his instructions.
He further deposed that Crime Team had left the spot at about 1.30 am. Complainant and accused Salim @ Harun Pasa were still present at the spot at that time. Crime Team Report was handed over to him at the spot. Accused Salim was beaten up by the public persons. The entire writing work was conducted at the spot. However, he had recorded the statements U/s 161 Cr.P.C. of Ct. Manoj and Ct. K.M. Sayeed in the PS. He further deposed that complainant Neeraj Aggarwal alone had visited PS on the day when accused Imran Khan was arrested in this case. He clarified that complainant had identified accused Imran Khan in the PS at that time and he had also recorded statement of complainant in this regard.
PW18 denied that the case property and accused persons were publically shown between 28.11.2010 to 30.11.2010 to public persons including complainant but when he was confronted with copy of Hindi newspaper Punjab Kesri dt. 30.11.2010, he admitted that press release was issued concerning this case on 30.11.2010 and the picture appearing at page 7 of the said newspaper, was containing photographs of both the accused besides photographs of police officials and one pistol in plastic jar. Copy of said newspaper was exhibited as Ex.PW18/DA. Witness explained that press release was issued as per direction of the then DCP (OD) and the media State Vs Salim @ Harun Pasa etc. ("Convicted") Page 22 of 48 FIR No. 403/10; U/s 307/394/34 IPC & Sec. 25/27 Arms Act; PS Vijay Vihar D.O.D. 29.04.2015 person had taken the pictures of the accused persons as well as of the plastic jar containing pistol and motorcycle. He admitted that case property consisting of motorcycle and pistol contained in plastic jar had been deposited in Malkhana on 28.11.2010. Thereafter, he did not take custody of those articles from MHC(M) at any point of time. He denied the suggestion that case property was not deposited by him in Malkhana on 28.11.2010 or that it remained in his possession till said press release was issued in the newspaper. He clarified that accused Salim was in police custody from the date of his arrest till 30.11.2010 and accused Imran Khan who was arrested on 28.11.2010, also remained in police custody till 03.12.2010. He denied the suggestions that he had forcibly obtained signatures of accused Salim on certain blank papers on 29.11.2010 or had converted those blank papers into various memos in order to create false evidence against him.
In his further cross examination, PW18 deposed that on 28.11.2010, accused Salim @ Harun Pasa was taken out from lock up of PS South Rohini and then, he was taken to PS Vijay Vihar during after noon hours and relevant entry was also made in roznamcha in this regard. He further deposed that three public persons were present at the house of accused Imran Khan situated at House No. B41, Dilshad Colony, Seema Puri but none of them was asked to join the proceedings. No other resident from other flats situated in the same building, could be called for joining the proceedings as there was apprehension that accused Imran Khan could have escaped from there. He denied the relevant suggestions put to him during cross examination on behalf of accused persons.
State Vs Salim @ Harun Pasa etc. ("Convicted") Page 23 of 48 FIR No. 403/10; U/s 307/394/34 IPC & Sec. 25/27 Arms Act; PS Vijay Vihar D.O.D. 29.04.2015 MEDICAL WITNESSES
24. PW3 Dr. Deepti Bhalla: This witness had examined complainant Neeraj Aggarwal in BSA Hospital vide MLC no. 8958 and proved the said MLC as Ex.PW3/A. She deposed that said injured was brought to Casualty on 27.11.2010 at about 12.10 am with alleged history of assault and on external examination, found abrasion over the right parietal region of his scalp. She has not been cross examined by accused despite grant of opportunity.
ARGUMENTS ADVANCED AND CASE LAW CITED
25. While referring to the allegations appearing on record against both the accused persons and the testimonies of prosecution witnesses examined during trial, Ld. Additional PP for State argued that out of four public witnesses, PW1 namely Hemant Kumar, PW2 Neeraj Aggarwal (complainant) and PW4 Satish Aggarwal have fully supported the case of prosecution on all material points. He further pointed out that although PW6 did not support the case of prosecution on the aspect of identity of accused herein to be the offenders but he has also supported the prosecution story to the extent that occurrence had taken place on the given date, time and place. Ld. Additional PP pointed out that PW6 did not identify accused herein as he and accused persons belong to same Biradari as also admitted by him during cross examination conducted on behalf of State.
26. Ld. Additional PP also referred to the relevant portions of testimonies of police witnesses examined during trial as well as the relevant State Vs Salim @ Harun Pasa etc. ("Convicted") Page 24 of 48 FIR No. 403/10; U/s 307/394/34 IPC & Sec. 25/27 Arms Act; PS Vijay Vihar D.O.D. 29.04.2015 proceedings carried out by them. He also referred to the documentary evidence proved on record during the course of trial and submitted that both the accused herein in furtherance of their common intention, attempted to commit robbery at shop of Aggarwal Cloth House situated at B488, Sector1, Avantika, Rohini Delhi and while attempting to commit robbery, accused Imran Khan had fired at witness Satish Aggarwal which could have resulted into his death. He further argued that both the accused persons also caused hurt to complainant Neeraj Aggarwal while attempting to commit robbery. He also submitted that accused Imran Khan had used deadly weapon i.e. pistol at the time of attempting to commit robbery and he was subsequently found in possession of loaded pistol containing three live cartridges and one empty shell from his house on 28.11.2010. Therefore, both the accused persons should be convicted for appropriate offences under the law.
27. Per contra, ld. defence counsel vehemently argued that prosecution has failed to establish the charges against both the accused beyond reasonable doubt. In support of his submissions, he referred to the relevant portion of testimonies of prosecution witnesses examined during trial. He submitted that public witness namely PW6 Mohd. Amir has not identified the accused persons during trial despite the fact that he was also present at the time of incident as per the case of prosecution. Ld. defence counsel contended that there are various contradictions appearing in the testimonies of prosecution witnesses, which create reasonable doubt in the case of prosecution story and therefore, both the accused are entitled to benefit of doubt. The contradictions as pointed out by ld. defence counsel State Vs Salim @ Harun Pasa etc. ("Convicted") Page 25 of 48 FIR No. 403/10; U/s 307/394/34 IPC & Sec. 25/27 Arms Act; PS Vijay Vihar D.O.D. 29.04.2015 shall be discussed hereinafter in the subsequent paras.
28. In order to prove the offence punishable U/s 307/34 IPC, it was essential for the prosecution to prove the following ingredients:
i. That both the accused in furtherance of their common intention, attempted to cause death of any person;
ii. That the death was attempted to be caused by, or in consequence of, the act of the accused persons;
iii. That such act was done by the accused persons in furtherance of their common intention to cause death; or that it was done with intention of causing such bodily injury as: (a) the accused persons knew to be likely to cause death; or (b) was sufficient in the ordinary course of nature to cause death; or that the accused persons attempted to cause such death by doing an act known to them to be so imminently dangerous that it must in all probability cause (a) death, or (b) such bodily injury as is likely to cause death, the accused persons having no excuse for incurring the risk of causing such death or injury.
29. As already discussed above, the prosecution examined four public witnesses by claiming them to be eye witnesses of the occurrence. Out of four witnesses, PW1 Hemant Kumar and PW6 Mohd. Amir are the employees of complainant i.e. PW2 Neeraj Aggarwal and his brother i.e. PW4 Satish Aggarwal who all were present in the shop at the time of occurrence. Out of them, PW1, PW2 and PW4 have fully supported the case of prosecution on all material points. They not only identified both the accused herein to be the offenders involved in the commission of offences charged against them but also identified the relevant case property i.e. helmet Ex.P1, State Vs Salim @ Harun Pasa etc. ("Convicted") Page 26 of 48 FIR No. 403/10; U/s 307/394/34 IPC & Sec. 25/27 Arms Act; PS Vijay Vihar D.O.D. 29.04.2015 cloth roll Ex.P2 containing two holes caused due to firing of bullet by accused, wooden piece Ex.P3 of rack having hole created due to firing of bullet by accused, lead piece of bullet Ex.P4 and control sample of wooden piece of rack Ex.P5. All the said witnesses have been categorical in their depositions that both these accused had come to their shop at about 10.50 pm on 26.11.2010 when they were about to close the shop. They specifically deposed that accused Salim @ Harun Pasa had taken out pistol from his jacket and pointed out towards PW4 Satish Aggarwal and asked them to hand over whatever cash and jewellery they were having at that time. They also testified that accused Imran Khan had fired at PW4 Satish Aggarwal while running from the spot and the bullet had hit wooden rack available in the shop.
30. Ld. defence counsel tried to create doubt in the testimonies of aforesaid public witnesses by arguing that PW2 and PW4 are complainant and his brother and thus, they are interested witnesses due to which their testimonies should not be believed by the Court in the absence of any independent corroboration thereof by any other public person. For the said purpose, he referred to relevant part of cross examination of PW2 wherein he deposed that one Vijay Pal who was Pradhan of their association, had accompanied them to PS. PW2 also claimed that his friend Shammi Thukral was also present at the spot. Ld. defence counsel submitted that none of those public witnesses who were found present at the spot including Vijay Pal and Shammi Thukral, was joined by the police during investigation and no explanation has been furnished by the prosecution in this regard. Ld. defence counsel also referred to relevant portion of cross examination of PW1 Hemant State Vs Salim @ Harun Pasa etc. ("Convicted") Page 27 of 48 FIR No. 403/10; U/s 307/394/34 IPC & Sec. 25/27 Arms Act; PS Vijay Vihar D.O.D. 29.04.2015 Kumar wherein he claimed that PW2 and PW4 are brothers of Rakesh Aggarwal whereas said two witnesses are actually sons of Rakesh Aggarwal. In view of same, ld. defence counsel submitted that PW1 was not present at the place of occurrence. He was subsequently planted by the police.
31. Ld. defence counsel further argued that there is contradiction in the prosecution story vizaviz relevant portion of cross examination of PW2 Neeraj Aggarwal in as much as prosecution story as propounded in the chargesheet, claimed that lead piece of bullet was seized from the spot before registration of FIR whereas PW2 deposed that said lead piece of bullet was found lying on floor of the shop while it was being cleaned by his employee on next day of incident. Likewise, ld. defence counsel also pointed out that prosecution story claimed that wooden piece of rack was got cut by IO i.e. PW18 SI Virender Singh himself with the help of Aari arranged from police station as also testified to this effect by PW18 himself but said portion of his testimony has been contradicted by PW2 who has deposed that said wooden piece of rack was got separated by police on the next day of incident with the help of carpenter arranged by them. Ld. defence counsel also contended that as per case of prosecution, entire writing work was conducted at the spot itself whereas PW2 deposed during cross examination that he had signed the relevant documents in the PS and no writing work was carried out at the place of incident.
32. The aforesaid contradictions pointed out by ld. defence counsel are not material and do not go to the root of the case of prosecution so as to disbelieve the testimonies of PW1 or PW2 (complainant) or to throw away the State Vs Salim @ Harun Pasa etc. ("Convicted") Page 28 of 48 FIR No. 403/10; U/s 307/394/34 IPC & Sec. 25/27 Arms Act; PS Vijay Vihar D.O.D. 29.04.2015 entire case of prosecution on that ground. It does not matter as to whether the writing work was carried out at the spot or in the PS. What matters is that relevant proceedings were carried out by the police. Accused persons could not discredit the testimonies of relevant prosecution witnesses with regard to seizure of various exhibits from the spot and about writing work carried out in that regard, through litmus test of cross examination despite the fact that ld. defence counsel cross examined them at length.
33. Although, Ld. defence counsel vehemently argued that the testimonies of PW1 and PW4 should not be relied upon by the Court as they are interested witnesses being employee and brother of the complainant (PW2) but the said contention is liable to be rejected as nothing has been brought on record from the side of accused persons to show that any of said two witnesses was not present at the spot or that the testimony of any of them is not natural or trustworthy. Even otherwise, it is well settled law that the testimonies of related witnesses cannot be discarded outrightly unless it is shown to the Court that the testimony of such related witness is not free from doubt.
34. In the matter titled as Waman Vs. State of Maharashtra, (2011) 7 SCC 295, it has been held by Hon'ble Apex Court as under: "It is clear that merely because the witnesses are related to the complainant or the deceased, their evidence cannot be thrown out. If their evidence is found to be consistent and true, the fact of being a relative cannot by itself discredit their evidence. In other words, the relationship is not a factor to affect the credibility of a witness and the Courts have to scrutinise their evidence meticulously with a little care".
State Vs Salim @ Harun Pasa etc. ("Convicted") Page 29 of 48 FIR No. 403/10; U/s 307/394/34 IPC & Sec. 25/27 Arms Act; PS Vijay Vihar D.O.D. 29.04.2015
35. In another matter titled as "Raju @ Balachandran & Ors. Vs. State of Tamil Nadu" reported at 2012 XII AD (SC) 1, it has been held as under: "The evidence of an interested witness does not suffer from any infirmity as such, but the Courts require as a rule of prudence, not as a rule of law, that the evidence of such witnesses should be scrutinized with a little care. Once that approach is made and the Court is satisfied that the evidence of interested witnesses have a ring of truth such evidence could be relied upon even without corroboration".
36. No fault can be found on the part of investigation agency for non joining of Vijay Pal, Pradhan of Market Association and Shammi Thukral, friend of PW2 during the course of investigation. The reason is quite obvious that neither said two public witnesses or any other public person were/was present at the time of occurrence nor they had seen either the occurrence being committed in their presence or accused Imran being running away from the spot or other accused Salim @ Harun Pasa being apprehended at the spot.
37. There is no force in the submission of ld. defence counsel that PW2 and PW4 are interested witnesses or that in the absence of independent corroboration, their testimonies should not be believed by the Court. Firstly, the testimonies of PW2 and PW4 are also supported by testimony of PW1 Hemant Kumar who was also present at the time of incident in question. Secondly, said there public witnesses had no reason to falsely implicate these two accused in the present case. Accused have failed to point out any reason or motive for their false implication in the present case. It is nowhere the case State Vs Salim @ Harun Pasa etc. ("Convicted") Page 30 of 48 FIR No. 403/10; U/s 307/394/34 IPC & Sec. 25/27 Arms Act; PS Vijay Vihar D.O.D. 29.04.2015 of accused that they were previously known to said witnesses or said witnesses had any sort of ill will or previous enmity for falsely implicating them in the present case. Thirdly, Court does not see any reason as to why complainant would falsely implicate these two accused by allowing actual offenders to escape from legal punishment. No such reason is either suggested during cross examination of public witnesses nor any light has been thrown on this aspect by the accused in their respective statements U/s 313 Cr.P.C. recorded by the Court. Fourthly, PW2 Neeraj Aggarwal himself is shown to have sustained injuries on account of hitting of butt of pistol on his head by the accused. He is shown to have been medically examined at BSA Hospital vide MLC Ex.PW3/A. The perusal of said MLC would show that he was brought to the hospital with alleged history of assault and he is shown to have sustained abrasion over right parietal region of scalp and nature of said injury is opined to be simple by PW3 Dr. Deepti Bhalla of said hospital.
38. It is well settled law that the testimony of a witness cannot be brushed aside merely because he happens to be complainant/injured himself. Instead, the law is otherwise which provides that testimony of stamped witness can be taken into consideration by the Court and same can form basis of conviction of the accused in case it inspires confidence.
39. The testimony of the injured witness is accorded a special status in law. This is as a consequence of the fact that the injury to the witness is an inbuilt guarantee of his presence at the scene of the crime and because the witness will not want to let his actual assailant to go unpunished merely to falsely implicate a third party for the commission of the offence. Thus, the State Vs Salim @ Harun Pasa etc. ("Convicted") Page 31 of 48 FIR No. 403/10; U/s 307/394/34 IPC & Sec. 25/27 Arms Act; PS Vijay Vihar D.O.D. 29.04.2015 deposition of the injured witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies therein.
40. In the recent judgment delivered by Hon'ble Apex Court in the matter titled as "Mano Dutt & Anr. Vs. State of U.P." reported at 2012 IIIAD (SC) 253, it has been held as under: "xxxxx In our view, nonexamination of Nankoo, to which the accused raised the objection, would not materially affect the case of the prosecution. Normally, an injured witness would enjoy greater credibility because he is the sufferer himself and thus, there will be no occasion for such a person to state an incorrect version of the occurrence, or to involve anybody falsely and in the bargain, protect the real culprit. We need not discuss more elaborately the weight age that should be attached by the Court to the testimony of an injured witness. In fact, this aspect of criminal jurisprudence is no more res integra, as has been consistently stated by this Court in uniform language. xxxxxx"
41. In another judgment delivered in the matter titled as "Abdul Sayeed Vs. State of Madhya Pradesh" reported at 2010 IX AD (S.C) 615, Hon'ble Apex Court has held as under: "xxxxxx
28. The question of the weight to be attached to the evidence of a witness that was himself injured in the course of the occurrence has been extensively discussed by the Court. Where a witness to the occurrence has himself been injured in the incident, the testimony of such a witness is generally considered to be very reliable, as he is a witness that comes with a builtin State Vs Salim @ Harun Pasa etc. ("Convicted") Page 32 of 48 FIR No. 403/10; U/s 307/394/34 IPC & Sec. 25/27 Arms Act; PS Vijay Vihar D.O.D. 29.04.2015 guarantee of his presence at the scene of the crime and is unlikely to spare his actual assailant(s) in order to falsely implicate someone. "Convincing evidence is required to discredit an injured witness."
xxxxxxx"
42. Furthermore, PW6 Mohd. Amir though failed to identify accused herein during trial but he has definitely supported the case of prosecution to the extent that incident in question had taken place on the given date, time and place by two persons. It is settled legal proposition that the evidence of a prosecution witness cannot be rejected in toto merely because the prosecution chose to treat him as hostile and crossexamined him. The evidence of such witnesses cannot be treated as effaced or washed off the record altogether but the same can be accepted to the extent that their version is found to be dependable on a careful scrutiny thereof.
43. In the matter titled as "Bhajju @ Karan Singh Vs. State of M.P." reported at 2012 Crl.L.J. 1926, held as under: "Now, we shall discuss the effect of hostile witnesses as well as the worth of the defence put forward on behalf of the appellant/accused. Normally, when a witness deposes contrary to the stand of the prosecution and his own statement recorded under Section 161 of the Code of Criminal Procedure, the prosecutor, with the permission of the Court, can pray to the Court for declaring the witness hostile and for granting leave to crossexamine the said witness. If such a permission is granted by the Court then the witness is subjected to cross examination by the prosecutor as well as an opportunity is provided to the defence to crossexamine such witness, if he so desires. In other words, there is a limited examinationin chief, cross examination by the prosecutor and cross examination by the counsel for the accused. It is admissible to State Vs Salim @ Harun Pasa etc. ("Convicted") Page 33 of 48 FIR No. 403/10; U/s 307/394/34 IPC & Sec. 25/27 Arms Act; PS Vijay Vihar D.O.D. 29.04.2015 use the examinationinchief, as well as the cross examination of the said witness in so far as it supports the case of the prosecution. It is settled law that the evidence of hostile witnesses can also be relied upon by the prosecution to the extent to which it supports the prosecution version of the incident. The evidence of such witnesses cannot be treated as washed off the records, it remains admissible in trial and there is no legal bar to base the conviction of the accused upon such testimony, if corroborated by other reliable evidence. Section 154 of the Act enables the Court, in its discretion, to permit the person, who calls a witness, to put any question to him which might be put in crossexamination by the adverse party. The view that the evidence of the witness who has been called and crossexamined by the party with the leave of the Court, cannot be believed or disbelieved in part and has to be excluded altogether, is not the correct exposition of law. The Courts may rely upon so much of the testimony which supports the case of the prosecution and is corroborated by other evidence. It is also now a settled cannon of criminal jurisprudence that the part which has been allowed to be crossexamined can also be relied upon by the prosecution".
44. The reason why PW6 failed to identify these two accused, has also been brought on record from the side of prosecution during his cross examination whereby he admitted that he as well as both the accused belong to same biradari. In this backdrop, said witness had reason not to identify the accused persons and the possibility of said witness being won over by the accused, cannot be ruled out.
45. The next limb of argument raised by ld. defence counsel is that there are several contradictions in the testimonies of prosecution witnesses vizaviz the documents proved on record. The contradictions pointed out by ld. defence counsel may be summed up as under:
State Vs Salim @ Harun Pasa etc. ("Convicted") Page 34 of 48
FIR No. 403/10; U/s 307/394/34 IPC & Sec. 25/27 Arms Act; PS Vijay Vihar D.O.D. 29.04.2015
i). In DD No. 94B Ex.PW16/A, it is mentioned that intimation was received in PS Vijay Vihar at 11.16 pm, but PW7 Ct. Manoj deposed that DD no. 94B was received at about 10 / 10.30 pm and he alongwith SI Virender Singh (PW18) had left the spot at 10.30 / 10.40 pm. Similarly, PW5 namely Shyam, photographer deposed that he had reached the spot at about 10.30 pm;
ii). There is contradiction as regards the time of leaving the spot appearing in the testimonies of relevant witnesses;
iii). Contradiction with regard to time when PW7 Ct. Manoj left PS alongwith copy of FIR and time of arrival of mobile crime team at the spot;
iv). Contradiction in the statements of relevant prosecution witnesses on the aspect of efforts being made to join public witnesses in the proceedings at the spot; and
v). Contradiction of time when IO i.e. PW18 SI Virender Singh left the hospital and returned back to spot vizaviz time of arrival of mobile crime team at the spot.
46. The aforesaid contradictions pointed out by ld. defence counsel are minor contradictions, which do not go to the root of the prosecution story. It is relevant to note that the occurrence had taken place on 26.11.2010 whereas testimonies of relevant prosecution witnesses were recorded after a gap of more than one year of the date of incident. It needs no emphasis that human memory is bound to fade with the passage of time and all the persons State Vs Salim @ Harun Pasa etc. ("Convicted") Page 35 of 48 FIR No. 403/10; U/s 307/394/34 IPC & Sec. 25/27 Arms Act; PS Vijay Vihar D.O.D. 29.04.2015 who are witnesses of same facts, cannot be expected to depose in the same manner and certain discrepancies are bound to occur during their depositions made after a span of more than one year from the date of occurrence.
47. Moreover, it is well settled law that minor contradictions do not affect the case of prosecution. It has been held by Hon'ble Apex Court in the matter titled as "State of Rajasthan vs. Smt. Kalki & Anr." reported at (1981) 2 SCC 752 that in the depositions of witnesses, there are always normal discrepancies however honest and truthful the witnesses may be and these discrepancies are due to normal errors of observations, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence, and the like.
48. It has been held in another matter titled as A. Shanker Vs. State of Karnataka, reported at AIR 2011 SC 2302, as under: "xxxxx
17. In all criminal cases, normal discrepancies are bound to occur in the depositions of witnesses due to normal errors of observation, namely, errors of memory due to lapse of time or due to mental disposition such as shock and horror at the time of occurrence. Where the omissions amount to a contradiction, creating a serious doubt about the truthfulness of the witness and other witnesses also make material improvement while deposing in the Court, such evidence cannot be safe to rely upon. However, minor contradictions, inconsistencies, embellishments or improvements on trivial matters which do not affect the core of the prosecution case, should not be made a ground on which the evidence can be rejected in its entirety. The Court has to form its opinion about the credibility of the witness and record a finding as to whether his deposition inspires confidence. "Exaggerations per so do not render the evidence brittle. But it can be one of the factors to test credibility of the prosecution version, when the State Vs Salim @ Harun Pasa etc. ("Convicted") Page 36 of 48 FIR No. 403/10; U/s 307/394/34 IPC & Sec. 25/27 Arms Act; PS Vijay Vihar D.O.D. 29.04.2015 entire evidence is put in a crucible for being tested on the touchstone of credibility." Therefore, mere marginal variations in the statements of a witness cannot be dubbed as improvements as the same may be elaborations of the statement made by the witness earlier.
"Irrelevant details which do not in any way corrode the credibility of a witness cannot be labelled as omissions or contradictions."
49. There is no substance in the next submission of ld. defence counsel that non examination of concerned police official who had filled up PCR form on receipt of information from PCR caller, during trial is fatal to the prosecution or that non filing of MLC of accused Salim @ Harun Pasa alongwith chargesheet, creates any doubt in the case of prosecution. I also do not find any merit in the contention of ld. defence counsel that the testimonies of relevant prosecution witnesses should be disbelieved merely because they could not disclose the registration number of the car in which complainant i.e. PW2 Neeraj Aggarwal and accused Salim were taken to the hospital for their medical examination. Moreover, it was the duty of accused to put relevant questions during cross examination of PW2 and/or PW4 for disclosing registration number of the said car as it has been clarified by IO i.e. PW18 SI Virender Singh that said car was arranged by the complainant. Having not done so, the defence cannot be allowed to blame the prosecution for the same.
50. Ld. defence counsel also made feeble attempt to create doubt in the case of prosecution by referring to the contents of DD No. 94B (Ex.PW16/A) wherein it is recorded that one thief had been caught. Ld. defence counsel argued that there is no mention in the said DD that any incident of firing or attempt of robbery or extending threat, had taken place, State Vs Salim @ Harun Pasa etc. ("Convicted") Page 37 of 48 FIR No. 403/10; U/s 307/394/34 IPC & Sec. 25/27 Arms Act; PS Vijay Vihar D.O.D. 29.04.2015 which clearly shows that false story was concocted by the police in order to falsely implicate the accused in this case.
51. On the other hand, ld. Additional PP submitted that DD No. 94B was recorded on the information received from PCR caller and whatever was informed by the informer, same was recorded by the concerned police official who was on duty in Police Control Room and he transmitted the same to the concerned Duty Officer of PS Vijay Vihar.
52. I am totally in agreement with the submission made by Ld. Additional PP. It has been duly established on record that accused Salim @ Harun Pasa had been apprehended at the spot by complainant Neeraj Aggarwal (PW2) with the help of PW1, PW4 and PW6. It was only thereafter that father of complainant had made PCR call from his mobile phone no. 9810818253 and informed Police Control Room that one of the offenders had been apprehended at the spot. The said information was given in lay man language. Thus, the entire case of prosecution cannot be disbelieved on this count. Likewise, the case of prosecution cannot be discarded merely because it is not mentioned in the MLC Ex.PW3/A of complainant that incident of firing had taken place.
53. Ld. defence counsel also tried to displace the case of prosecution by referring to the Crime Team Report Ex.PW14/A wherein Crime Team In charge i.e. PW14 SI Deepak Malik advised IO to seize the relevant exhibits and to look for injured and eye witness. Ld. defence counsel pointed out that it has been admitted by police witnesses including Crime Team Incharge i.e. PW14 SI Deepak Malik that complainant Neeraj Aggarwal was also present at State Vs Salim @ Harun Pasa etc. ("Convicted") Page 38 of 48 FIR No. 403/10; U/s 307/394/34 IPC & Sec. 25/27 Arms Act; PS Vijay Vihar D.O.D. 29.04.2015 the spot when crime team had carried out the inspection but still advisory was issued by Crime Team Incharge to look for injured and eye witness. Ld. defence counsel claimed that testimonies of relevant witnesses on this aspect goes to show that either crime team did not visit the spot at the time and in the manner claimed by prosecution or no such incident took place and false story was concocted subsequently by the police at the instance of serial police officers.
54. Although, aforesaid submission of ld. defence counsel appear to be impressive at the first instance but Court is not inclined to give benefit of reasonable doubt to the accused on that basis. No doubt, it has come on record that complainant Neeraj Aggarwal was present at the time of inspection of spot by Mobile Crime Team but it has also come on record that crime team members did not make any enquiry whatsoever either from IO or from complainant while preparing their report Ex.PW14/A. That is how, advisory has been issued by them to look for the injured as well as eye witnesses. It is unfortunate on the part of investigation agency that IO was not vigilant enough to inform Crime Team Incharge that injured was also present at the spot at that time and the names of eye witnesses were already ascertained before carrying out inspection of the spot by crime team. Any how, the accused persons cannot be given any benefit due to said lapse on the part of investigation agency.
55. In the case of Zahira Habibullah Sheikh & Anr. Vs. State of Gujarat & Ors. reported at {2006) 3 SCC 374}, the Hon'ble Supreme Court noticed the importance of the role of witnesses in a criminal trial. Hon'ble State Vs Salim @ Harun Pasa etc. ("Convicted") Page 39 of 48 FIR No. 403/10; U/s 307/394/34 IPC & Sec. 25/27 Arms Act; PS Vijay Vihar D.O.D. 29.04.2015 Apex Court observed as under:
"xxxxxx The importance and primacy of the quality of trial process can be observed from the words of Bentham, who states that witnesses are the eyes and ears of justice. The Court issued a caution that in such situations, there is a greater responsibility of the court on the one hand and on the other courts must seriously deal with persons who are involved in creating designed investigation. The Court held that legislative measures to emphasize prohibition against tempering with witness, victim or informant have become the imminent and inevitable need of the day. Conducts which illegitimately affect the presentation of evidence in proceedings before the Courts have to be seriously and sternly dealt with. There should not be any undue anxiety to only protect the interest of the accused. That would be unfair, as noted above, to the needs of the society. On the contrary, efforts should be to ensure fair trial where the accused and the prosecution both get a fair deal. Public interest in proper administration of justice must be given as much importance if not more, as the interest of the individual accused. The courts have a vital role to play.(Emphasis supplied) With the passage of time, the law also developed and the dictum of the Court emphasized that in a criminal case, the fate of proceedings cannot always be left entirely in the hands of the parties. Crime is a public wrong, in breach and violation of public rights and duties, which affects the community as a whole and is harmful to the society in general. xxxxx"
56. Reiterating the above principle, Hon'ble Apex Court in the case of "National Human Rights Commission Vs. State of Gujarat" reported at (2009) 6 SCC 767, held as under: "The concept of fair trial entails familiar triangulation of interests of the accused, the victim and the society and it is the community that acts through the State and prosecuting agencies. Interest of society is not to be treated completely with disdain and State Vs Salim @ Harun Pasa etc. ("Convicted") Page 40 of 48 FIR No. 403/10; U/s 307/394/34 IPC & Sec. 25/27 Arms Act; PS Vijay Vihar D.O.D. 29.04.2015 as persona non grata. The Courts have always been considered to have an overriding duty to maintain public confidence in the administration of justiceoften referred to as the duty to vindicate and uphold the 'majesty of the law'. Due administration of justice has always been viewed as a continuous process, not confined to determination of the particular case, protecting its ability to function as a court of law in the future as in the case before it. If a criminal court is to be an effective instrument in dispensing justice, the presiding Judge must cease to be a spectator and a mere recording machine by becoming a participant in the trial evincing intelligence, active interest and elicit all relevant materials necessary for reaching the correct conclusion, to find out the truth, and administer justice with fairness and impartiality both to the parties and to the community it serves. The Courts administering criminal justice cannot turn a blind eye to vexatious or oppressive conduct that has occurred in relation to proceedings, even if a fair trial is still possible, except at the risk of undermining the fair name and standing of the judges as impartial and independent adjudicators."
57. There is no substance in the submission of ld. defence counsel that there is any contradiction about particular floor on which house of accused Imran was situated in property no. B41/3, Dilshad Colony, Seemapuri. It has been duly clarified by PW9 Ct. Dinesh. in response to Court question that said property was three storied building and the house of accused Imran was situated on second floor thereof. It has been consistently deposed by all the recovery witnesses that house of accused Imran was situated on second floor and arms and ammunitions were got recovered by accused Imran from bed of the room of his house.
58. Ld. defence counsel argued that no independent public person was got joined by the police at the time of alleged recovery of those arms and ammunitions and in the absence thereof, recovery of pistol, three live State Vs Salim @ Harun Pasa etc. ("Convicted") Page 41 of 48 FIR No. 403/10; U/s 307/394/34 IPC & Sec. 25/27 Arms Act; PS Vijay Vihar D.O.D. 29.04.2015 cartridges and one empty cartridge shell at the instance of accused Imran becomes doubtful. However, said argument of ld. defence counsel is liable to be rejected for the reason that IO i.e. PW18 SI Virender Singh has duly explained that efforts were made by him to join passersby during proceedings but none agreed and efforts could not be made to join residents of other flats situated in the same building as accused Imran had already made attempts to flee away from their custody by jumping from the roof of the said building and there was every apprehension that accused Imran would manage to flee away from their clutches in case any further time is wasted to ask those residents to join in the recovery proceedings.
59. Law is not that testimony of police officers is absolutely untrustworthy or that it can never be acted upon. Rather, the law is that even the testimony of a police officer can be acted upon and a conviction can be based on such testimony if the testimony is unimpeached and found to be trustworthy.
60. Hon'ble Supreme Court in Anil @ Andya Sadashiv Nandorkar Vs. State reported at J.T. 1996 (3) SC 120, has held that testimony of the police officials cannot be discredited merely because they are police officials if otherwise, their testimony is found to be cogent, trustworthy and reliable. Further, Hon'ble Supreme Court in Akmal Ahmad Vs. State of Delhi reported at J. T 1999 (2) SC 388 held as under:
''it is now well settled that evidence of search and seizure made by police will not become vitiated only for the reasons that the evidence is not supported by independent witnesses.'' State Vs Salim @ Harun Pasa etc. ("Convicted") Page 42 of 48 FIR No. 403/10; U/s 307/394/34 IPC & Sec. 25/27 Arms Act; PS Vijay Vihar D.O.D. 29.04.2015
61. In the matter titled as State Govt. of NCT of Delhi Vs. Sunil & Anr. reported at (2001) 1 SCC 652, Hon'ble Apex Court has held as under: "xxxxx This Court examined a similar issue in a case where no person had agreed to affix his signature on the document. The Court observed that it is an archaic notion that actions of the police officer should be viewed with initial distrust. At any rate, the Court cannot begin with the presumption that police records are untrustworthy. As a proposition of law the presumption should be the other way around. The wise principle of presumption, which is also recognized by the legislature, is that judicial and official acts are regularly performed. Hence, when a police officer gives evidence in Court that a certain article was recovered by him on the strength of the statement made by the accused it is open to the Court to believe that version to be correct if it is not otherwise shown to be unreliable. The burden is on the accused, through cross examination of witnesses or through other materials, to show that the evidence of the police officer is unreliable. If the Court has any good reason to suspect the truthfulness of such records of the police the Court could certainly take into account the fact that no other independent person was present at the time of recovery. But it is not a legally approvable procedure to presume that police action is unreliable to start with, nor to jettison such action merely for the reason that police did not collect signatures of independent persons in the documents made contemporaneous with such actions xxxxx".
62. Ld. defence counsel could not bring any material contradiction during cross examination of relevant recovery witnesses with regard to recovery of arms and ammunitions at the instance of accused Imran from his house, during their respective cross examination. After considering the testimonies of those recovery witnesses, Court is of the view that said witnesses have duly corroborated each other and have successfully withstood State Vs Salim @ Harun Pasa etc. ("Convicted") Page 43 of 48 FIR No. 403/10; U/s 307/394/34 IPC & Sec. 25/27 Arms Act; PS Vijay Vihar D.O.D. 29.04.2015 the test of cross examination. Thus, the prosecution has been successful in establishing that pistol Ex.P6 containing three live cartridges and one empty cartridge Ex P7 (colly.) were got recovered at the instance of accused Imran Khan from his house situated on second floor of property bearing no. B41/3, Dilshad Colony, Seemapuri, Delhi. It is nowhere the case of accused Imran that he was having any valid licence to possess the said pistol and cartridges at that time. In other words, the possession of the said arm and ammunition with accused Imran is proved to be in violation of Section 3 of Arms Act.
63. The FSL report dated 08.04.2011 Ex. PX leaves no scope of doubt that the aforesaid pistol of 7.65 mm caliber (Ex.P6) is fire arm and the cartridges [Ex. P7 (colly.)] were successfully test fired through pistol (Ex. P6) and thus, said cartridges are ammunition as defined in Arms Act.
64. The prosecution has also proved sanction U/s 39 Arms Act Ex. PW18/H vide which the then Additional DCPI of Outer District had accorded sanction to prosecute accused Imran Khan for offence punishable U/s 25 Arms Act on 20.04.2011. The aforesaid FSL result Ex. PX and the sanction U/s 39 Arms Act Ex.PW18/H have gone unchallenged and unrebutted from the side of accused persons.
65. There was no requirement of getting judicial TIP of accused Imran Khan conducted during the course of investigation as it has been duly clarified by PW2 Neeraj Aggarwal as also by IO PW18 SI Virender Singh that PW2 had visited PS Vijay Vihar after the arrest of accused Imran, where PW2 had duly identified accused Imran to be the other offender who alongwith accused Salim were involved in the occurrence. There is no cross examination State Vs Salim @ Harun Pasa etc. ("Convicted") Page 44 of 48 FIR No. 403/10; U/s 307/394/34 IPC & Sec. 25/27 Arms Act; PS Vijay Vihar D.O.D. 29.04.2015 from the side of accused on this aspect. It has been duly proved by the prosecution that PW2 as also other public witnesses, had sufficient time to see the faces of the offenders at the time of occurrence and thus, their identification even for the first time during trial, is believable and can be accepted by the Court. While saying so, I am also fortified by the judgment delivered by Hon'ble Apex Court in the matter titled as " S.N. Dube etc. vs. N.B Bhoir & Ors." reported at 2000 I AD (HC) 169.
66. Ld. defence counsel vehemently argued that case property including motorcycle seized from the spot, are claimed to have been deposited in Malkhana of PS Vijay Vihar in the morning of 27.11.2010. Likewise, recovered arms and ammunitions are also claimed to have been deposited in the Malkhana of PS Vijay Vihar on 28.11.2010 i.e. the date when accused Imran was arrested by the police. Ld. defence counsel also referred to the relevant portion of cross examination of PW18 SI Virender Singh whereby he admitted that he did not take out any part of case property from Malkhana after 28.11.2010. Ld. defence counsel contended that after deposit of case property in Malkhana, same could not have come into possession of police officials but still press release was issued by the police on 30.11.2010 wherein both the accused as well as part of case property consisting of pistol contained in plastic jar and the motorcycle allegedly used in the commission of offence, were displayed to the media persons alongwith accused herein. In support of his submission, he also referred to copy of Hindi newspaper Punjab Kesri dated 30.11.2010 Ex.PW18/DA available on record.
State Vs Salim @ Harun Pasa etc. ("Convicted") Page 45 of 48 FIR No. 403/10; U/s 307/394/34 IPC & Sec. 25/27 Arms Act; PS Vijay Vihar D.O.D. 29.04.2015
67. In view of this, ld. defence counsel argued that said conduct on the part of police shows that case property i.e. pistol and cartridges were subsequently planted against accused Imran Khan in order to create false evidence against him. The said argument of ld. defence counsel does not carry any force for the simple reason that no cogent evidence has been brought on record from the side of accused to prove the date on which press release was issued by the police. The relevant news item wherein photographs of both the accused herein alongwith pistol contained in plastic jar and motorcycle seized in this case are visible, nowhere specifies the date on which said press release had been issued.
68. Moreover, no question whatsoever was put during cross examination of MHC(M) i.e. PW17 HC Ram Singh despite the fact that he categorically testified that one pullanda sealed with the seal of SS was deposited by IO SI Virender Singh in Malkhana on 15.01.2011 vide entry at serial no. 16/11 Ex.PW17/B made in register no.19.
69. Thus, it is very much clear from the record that pullanda containing pistol and cartridges recovered at the instance of accused Imran, was deposited in Malkhana on 15.01.2011 whereas press release is shown to have been made on or before 30.11.2010. Thus, there is no discrepancy as such appearing on record so as to create reasonable doubt in the case of prosecution.
70. The evidence available on record speaks sufficiently about the circumstances and the manner in which offences are shown to have been committed by both the accused herein. It is duly established from the State Vs Salim @ Harun Pasa etc. ("Convicted") Page 46 of 48 FIR No. 403/10; U/s 307/394/34 IPC & Sec. 25/27 Arms Act; PS Vijay Vihar D.O.D. 29.04.2015 testimonies of relevant eye witnesses that both the accused persons had participated during commission of offences and thus, there is no iota of doubt that both of them were sharing common intention to commit the offences.
71. In the light of aforesaid discussion, Court is of the view that prosecution has been successful in establishing on record that on 26.11.2010 at about 10.35 pm, both the accused herein namely Salim @ Harun Pasa and Imran Khan in furtherance of their common intention, attempted to commit robbery at the shop of Aggarwal Cloth House situated at B488, Sector1, Avantika, Rohini Delhi. Thus, both of them are held guilty of offence punishable U/s 393/34 IPC. The prosecution has also been successful in establishing beyond doubt that in furtherance of common intention of both the said accused, accused Imran had also fired from pistol Ex.P6 towards Satish Aggarwal (PW4) under such circumstances that if said bullet would have caused the death of Satish Aggarwal, they would have been guilty of committing his murder. Thus, both the said accused are held guilty of committing the offence punishable U/s 307/34 IPC. It has also been proved beyond doubt by the prosecution that both the said accused in furtherance of their common intention, caused hurt to complainant Neeraj Aggarwal (PW2) while attempting to commit robbery and thus, they are held guilty for offence punishable U/s 394/34 IPC. The prosecution has also proved beyond shadow of doubt that accused Imran Khan had used deadly weapon i.e. pistol Ex.P6 at the time of attempting to commit robbery and thus, accused Imran Khan is also held guilty for offence for offence punishable U/s 398 IPC. Considering the fact that accused Imran Khan could not prove that he was having any valid State Vs Salim @ Harun Pasa etc. ("Convicted") Page 47 of 48 FIR No. 403/10; U/s 307/394/34 IPC & Sec. 25/27 Arms Act; PS Vijay Vihar D.O.D. 29.04.2015 licence to carry fire arm i.e. pistol (Ex.P6) containing three live cartridges and one empty shell [Ex.P7 (colly.)] which are proved to have been recovered at his instance from his bed lying in the room of his house situated on second floor of property bearing no. B41/3, Dilshad Colony, Seemapuri and he had used the said prohibited arm and ammunition in violation of Section 3 & 5 of Arms Act, he is also held guilty for offences punishable U/s 25/27 Arms Act.
Announced in open Court today
On 29.04.2015 (Vidya Prakash)
Additional Sessions Judge04 (North)
Rohini Courts, Delhi
State Vs Salim @ Harun Pasa etc. ("Convicted") Page 48 of 48