Delhi District Court
State vs Gurpreet @ Lali Etc on 14 February, 2025
IN THE COURT OF MS SAUMYA CHAUHAN,
ASJ (FTC)-02, WEST DISTRICT, TIS HAZARI
COURTS, DELHI
CNR no. DLWT01-000004-2016
SC No.55845/16
FIR no. 119/2016
State Vs. Gurpreet @ Lali
PS: Uttam Nagar
Under Section : 307/394/397/511/34 IPC & 25 Arms Act
Date of commission of offence 03.02.2016
Name of the complainant Harbans Hooda
Name of accused and address Gurpreet @ Lali
S/o Sh. Jagtar Singh
R/o WZ-80, Gali no.9,
Krishna Puri, Tilak Nagar
Offence complained of or proved Section 394/397 IPC r/w
Section 27 and 25 of Arms
Act 1959
Plea of the accused Pleaded not guilty
Final Order Conviction for offence u/s
394 IPC and Section 25
Arms Act. Acquittal for
offence u/s 397 IPC and
Section 27
Date of judgment 14.02.2025.
JUDGMENT
1. The accused Gurpreet @ Lali is facing trial for offence under Section 394/397 IPC r/w Section 25 & 27 of Arms Act, 1959 on basis of the charge-sheet filed against him in FIR no..119/16 State Vs. Gurpreet @ Lali Page 1 of 35 the present FIR for attempting to commit robbery and causing hurt to a gunman Kakaram using a pistol.
Prosecution story
2. The case of the prosecution in brief is that on 03.02.2016, DD entry no.90A was received at PS Uttam Nagar regarding robbery. On reaching the spot, it was found that complainant Harbans Hooda had apprehended the accused. It is the case of the prosecution that at about 09.30 pm, the accused alongwith two other persons who could not be apprehended, reached near Kotak Mahindra Bank ATM situated in front of metro pillar no.762 near Rama Park, Najafgarh Road, Uttam Nagar, Delhi and attempted to commit robbery of cash from the employees of Kotak Mahindra. In their attempt to commit the robbery, the accused fired a gunshot at the gunman Kaka Ram Sharma with pistol and caused hurt to him as well as to another gunman Kishan Lal.
3. The accused was apprehended by complainant Harbans Hooda and one pistol was also recovered from the spot. The injured gunman Kaka Ram was taken to DDU hospital. On basis of the statement of the complainant Harbans Hooda, the present FIR was registered under Section 307/394/397/511/34 IPC and 25 Arms Act.
4. After completion of investigation, charge-sheet under section 307/394/397/511/34 IPC was filed in the Court of Ld. MM against the accused. After completion of FIR no..119/16 State Vs. Gurpreet @ Lali Page 2 of 35 proceedings under Section 207 Cr.P.C., Ld. MM committed the case to the Sessions Court. Thereafter, the case was assigned to the Court of Ld. Predecessor and was received by this court by way of transfer.
5. Vide order dated 04.09.2017, charge under Section 394/397 IPC and Section 27 Arms Act was framed against the accused by Learned Predecessor of this court and vide order dated 06.12.2024, additional charge under Section 25 Arms Act 1959 was framed against him. The accused pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE
6. To prove the charge against the accused, the prosecution has examined 15 witnesses in total.
7. PW-1/complainant Harbans Hooda deposed that on 03.02.2016, he had gone on evening walk with his wife. While returning from the walk to his house, he went towards Axis Bank ATM Booth. There were other ATM Booths of Kotak Mahindra Bank and of Axis Bank. He saw three persons came there on a motorcycle and got down from the same. One guard of Kotak Mahindra ATM booth was standing near the booth, the shutter of which was half opened. The said three persons were wearing helmets with visor. Out of the said three persons, one person started talking to the guard and tried to open the shutter of the Kotak Mahindra ATM Booth. The second person/motorcyclist fired a gun shot upon the guard. Two FIR no..119/16 State Vs. Gurpreet @ Lali Page 3 of 35 guards who were already present inside the booth to deposit money in the ATM Machine, came out from the booth after opening the shutter. The above-mentioned gunshot fire touched the check of the guard. One of the culprits/motorcyclists, tried to snatch the cash bag from the possession of one of the guards. One guard, who was standing near the cash van, tried to hit the culprits with brick. The guard, from whose possession the culprit tried to snatch away the bag, pushed the culprits. The witness caught hold of the culprit who was pushed by the guard and sat upon him. One Head Constable namely Thomas also reached there. From the possession of one of the culprits, katta (pistol) fell on the ground and at request of the witness, HC Thomas lifted the same. HC Thomas called the police. Public persons gathered there and on seeing them, the other two motorcyclist/culprits escaped on their motorcycle. The PCR officials reached at the spot and took the injured guard to the hospital. The SHO from local police station and QRT Staff also reached the spot. The katta was handed over to IO by HC Thomas. The crime team also reached there and they lifted one cartridge case and one live cartridge from the spot. IO recorded his statement Ex-PW1/A. IO prepared the sketch of the recovered katta and cartridges, Ex.PW 1/B and Ex.PW I/C respectively. IO visited the hospital and thereafter, returned to the spot and IO seized the said katta and cartridges vide seizure memo Ex.PW 1/D. FIR no..119/16 State Vs. Gurpreet @ Lali Page 4 of 35
8. PW-1 further deposed that when the accused fell down on the ground on being pushed by the guard, his helmet also fell down on the ground. In the meanwhile, the other associate of the culprit started coming towards him but on seeing the mob, he fled away from there. He could not see whether the above-mentioned motorcycle was having the registration number plate as it was parked at some distance in darkness.
9. PW-1 was further examined-in-chief on 22.02.2018, on which day he deposed that on 03.02.2016, he had gone alongwith his wife to ATM Booth of Axis Bank to withdraw cash. A cash van of Kotak Mahindra Bank came there. Two persons got down from the said van and went inside the nearby ATM Booth of Kotak Mahindra Bank with cash to deposit the cash. Another person/gunman also got down from the van and stood outside the ATM booth at the shutter to guard the same. Another guard/gunman stood near the van. In the meanwhile, three persons came there on a motorcycle. One of them got down from the motorcycle and started talking with the guard who was standing by the side of van. He fired a gunshot towards the gunman standing by the side of shutter of the ATM Booth. The guard who was standing by the side of van tried to fire upon the person who had fired gunshot towards the guard but it misfired as that guard was apprehended by the other two culprits. The person who had fired gunshot at the guard, ran towards the ATM Booth and tried to open its shutter. However, he could not open it as the two FIR no..119/16 State Vs. Gurpreet @ Lali Page 5 of 35 employees inside the ATM Booth did not let him open the same. Driver of the van threw a brick at the person who was trying to open the shutter of the ATM booth. However, he managed to save himself. He then moved away from the ATM booth and thereafter, the employees who were inside the ATM booth, opened the shutter of the booth and came out of it with cash bag. Out of the two associates, who had apprehended the guard standing by the side of van, one associate took out a pistol and pointed the same towards the employees who had come out from the booth and they tried to snatch away the cash bag from them. The witness immediately pushed the person who pointed out the gun towards that employee, due to which he fell down on the ground and the pistol also fell down there. HC Thomas also reached there and he lifted the pistol. Public persons gathered there and started beating the culprits. However, two of the three assailants succeeded in fleeing away from there. One of them i.e. the accused Gurpreet @ Lali was apprehended at the spot. Someone called PCR on 100 number. The PCR officials reached at the spot and took the injured gunman to hospital. IO and SHO PS Uttam Nagar also reached there. IO prepared the site plan Ex. PW1/E at his instance. He identified the pistol/katta, sikka (deformed cartridge) and live cartridge as Ex.P-1, Ex.P2 and Ex.P3 respectively.
10. During cross examination, PW-1 stated that his first statement was recorded by the police at around 10.00 pm at the place of incident. He admitted that in his statement FIR no..119/16 State Vs. Gurpreet @ Lali Page 6 of 35 Ex.PW-1/A, he had stated that he had gone to withdraw money from the ATM alongwith his wife. At the spot, statement of his wife was not recorded. He could not tell when and where her statement was recorded. He admitted that neither the accused, nor he himself nor his wife are visible in any of the said photographs. He could not recall whether any chance/finger print were lifted from the alleged weapon or whether it was in working condition or not. He could not recall whether he had signed the arrest memo of the accused. He admitted that IO had not taken any photograph at the spot from the CCTV camera installed at ATM in his presence. He admitted that the accused was not arrested in his presence. He had not given the physical description of the accused persons who had fled away from the spot. No helmet was seized in his presence. PW-1 admitted that he had not stated in his statement Ex.PW-1/A that "the guard, from whose possession the above-mentioned culprit tried to snatch away the bag, pushed the culprits." He also did not mention in his statement that he had requested HC Thomas to lift the pistol (katta) which fell down on the ground.
11. PW-1 admitted that accused Gurpreet had not fired any gunshot at the spot. He denied the suggestion that the accused was not present at the spot and was not apprehended by him. He denied the suggestion that the accused was lifted from his house and falsely implicated in this case.
FIR no..119/16 State Vs. Gurpreet @ Lali Page 7 of 3512. PW-1 produced four photographs during his cross-
examination stating that a public person had taken the said photographs at the spot and sent to him on WhatsApp. He got developed those photographs. Ld. Counsel for accused objected to the same submitting that the photographs were not placed on record as per law and was not part of the chargesheet and had been produced by the witness to fill the lacuna of the Prosecution case. Also, there were no negatives of the said photographs. As such, the said photographs were taken on record and marked as Mark PX (colly), subject to their proof and relevancy as per Indian Evidence Act.
13. PW-1 stated that these photographs were clicked by his neighbour, whose name he couldn't recollect due to lapse of time. He could not recall the exact date and time when the said photographs were sent to him by the said person, however, it was around 10-12 days after the incident. He had not informed the IO about the said photographs, nor he handed over the same to the IO. He denied that the said photographs were clicked by a professional photographer and were manipulated later on to suit this case and that is why he did not hand over those photographs to the IO.
14. PW-2 Sh. Sandeep deposed that at the time of incident, he was working in SSMS Pvt. Ltd. Company which deals with cash deposition in ATMs. On the date of incident i.e. 03.02.2016, at about 1.30 p.m. He alongwith other staff members i.e. Suman Karketta, Security Guards Kaka Ram FIR no..119/16 State Vs. Gurpreet @ Lali Page 8 of 35 and Kishan Lal and driver Ashok Kumar of vehicle bearing no. 8451 had proceeded from their office at Mansarover Garden to deposit the cash in the ATMs. At about 09.25 p.m they reached at Kotak Mahindra Bank ATM at Nawada Najafgarh Road in Uttam Nagar. He was having cash to be deposited in the ATM and Sh. Suman Karketta was having the report documents and they both went inside the ATM booth. Kaka Ram, the security guard lowered the ATM shutter. Kishan Lal and Ashok Kumar were also standing near the ATM. While he finished depositing cash in the ATM machine and was about to close down the machine, he heard huge Aftra-Tafri noises coming from outside. The shutter was not completely lowered and they looked out from the slight space and saw a number of persons running here and there. Suddenly one person started pulling the shutter up and tried to come inside the ATM booth. He and his colleague Sh. Suman Karketta pushed the gate and did not allow that person to enter in the ATM booth. Thereafter, they came out from the ATM booth and ran away to one side. After few minutes, they came back to the spot and found one person apprehended by Delhi Police officials and he was also beaten by the public. Their guard Kaka Ram had suffered gunshot injury. One pistol was also recovered by the police. He identified the accused as the person who was apprehended by the police from the spot.
15. This witness was cross-examined by Ld APP as he had partly resiled from his statement under Section 161 FIR no..119/16 State Vs. Gurpreet @ Lali Page 9 of 35 Cr.P.C. The witness admitted that when they came out of the ATM booth, the cash box was in the hand of Suman Karketta. He denied the suggestion that when they came out from the ATM booth, accused Gurpreet came out and put the pistol on the temple of Suman Karketta and thereafter one public person pushed the accused and then he was apprehended by the public as well by one police person. He was confronted with statement Ex.PW-2/PX1. He voluntarily stated that accused was already apprehended by the public person when they came out of the ATM Booth. He denied the suggestion that when the public person pushed him, he fell down and pistol in his hand also fell on the ground and that the police person took the said pistol.
16. During cross-examination by Ld. Defence counsel, PW-2 stated admitted that he did not observe who had fired from gun. He admitted that he did not see the face of the person lifting the shutter and pushing the gate as he was wearing helmet. He admitted that he did not see the face of person who was having the pistol. He admitted that after coming out from the ATM, they ran towards one side. He admitted that he did not see the face of the person who had pointed the gun at his temple. He admitted that he did not see as to who was being pushed by whom or where the gun fell. He came back at the spot after 15-20 seconds after running away from the ATM. He had not seen the accused when he came out from the ATM and ran away to a side.
FIR no..119/16 State Vs. Gurpreet @ Lali Page 10 of 3517. PW-3 Sh. Suman Karketta deposed that on 03.02.2016, at about 1.30 p.m. he alongwith PW-1/Sandeep, security Guards Kaka Ram and Kishan Lal and driver Ashok Kumar of vehicle bearing no. 8451 had proceeded from their office at Mansarover Garden for depositing the cash in the ATMs. At about 9.25 p.m they reached at Kotak Mahindra Bank ATM at Nawada Najafgarh Road in Uttam Nagar near metro pillar no. 762. Sandeep was having the cash to be deposited in the ATM, and he was having the report documents. They both went inside the ATM booth and security guard Kaka Ram closed the ATM shutter. Kishan Lal and Ashok Kumar were also standing near the ATM. PW-2/Sandeep filled the currency notes in the ATM and closed the ATM and he was preparing the report there. Suddenly he heard a gunshot noise from outside. The shutter was not completely lowered down. They looked out from the slight space and saw that a number of persons were running here and there. Suddenly one person started pulling the shutter upward and tried to come inside the ATM booth. He alongwith PW-2/Sandeep pushed the gate and did not allow him to enter the ATM booth. The said person had a pistol with him. Thereafter that person went backwards and they came out of the ATM booth. One more person came there and put a pistol on his temple. Thereafter, that person was pushed by a public person and that person fell on the ground and his pistol also fell on the ground. Thereafter, the person who had put pistol on his temple ran away from the spot and the person who was pushing the gate was caught by the public as well as by the FIR no..119/16 State Vs. Gurpreet @ Lali Page 11 of 35 police person. Police reached the spot. Kaka Ram received a gunshot injury and was quite nervous at that time.
18. PW-3 was also cross-examined by Ld. Addl. PP for State as he was resiling from his statement given to the police under Section 161 Cr.P.C. During cross-examination by Ld. Additional PP, PW-3 stated that he was carrying the cash box with him when he came out from the ATM Booth. He could not tell whether the person who had put a pistol on his temple and was pushed by the public person was apprehended by the public person and later on by the police from the spot. He denied the suggestion that, such person, while he had pointed his pistol on his temple was pushed by the public person and then apprehended by the public and police persons. He was confronted with the statement Ex.PW-3/PX1. He admitted that accused Gurpreet was the person who was apprehended by the public and police at the spot. He denied the suggestion that the accused Gurpreet was apprehended from the spot. He voluntarily stated that the accused was not there as such he cannot tell as to from where he was apprehended. He denied the suggestion that he was present there when the accused was apprehended. He admitted that he is not able to disclose complete facts due to lapse of time.
19. During cross-examination by Ld. Defence counsel, PW-3 admitted that he did not see who had fired from gun. He admitted that he did not see the faces of persons who were running here and there while they were inside the ATM FIR no..119/16 State Vs. Gurpreet @ Lali Page 12 of 35 booth. He admitted that he did not see the face of the person who was lifting the shutter and pushing the gate as he was wearing helmet. He admitted that he did not see the face of person who was having the pistol. He admitted that after coming out from the ATM, they ran towards one side. He admitted that he did not see the face of the person who had pointed the gun at his temple. He admitted that he did not see as to who was being pushed by whom or where the gun fell down on the ground. He had seen accused Gurpreet in the gypsy for the first time which was parked near the ATM. He admitted that he did not tell the police that accused Gurpreet had put the pistol on his temple. He denied the suggestion that accused was falsely implicated in the present case or that he was not present at the spot.
20. PW-4 SI J. K. Thomas deposed that on 03.02.2016 he was on patrolling duty and at about 09:40 PM, he reached near Axis Bank metro pillar no. 762, Najafgarh road where he saw that one person had pushed another person due to which he had fallen on the road. He immediately reached there and intervened in the matter. He also tried to help the person who had fallen on road. He also saw one pistol lying on the road nearby and picked it up. In the meantime, public persons and one guard also reached there. The public persons tried to beat the accused but he rescued him. He came to know from the public persons that the accused had caused gunshot injury to a person, who has already been removed to hospital by the PCR. At about 10:00 PM, IO ASI Dharmender reached there and he FIR no..119/16 State Vs. Gurpreet @ Lali Page 13 of 35 produced before him the pistol as well as the person who was rescued by him. IO made inquiry from the public persons. The public persons had disclosed that there were three persons who caused injuries to the injured. One was apprehended at the spot and other two had absconded. IO recorded the statement of the public person who had pushed the alleged person. He could not remember the initials of the complainant however, his surname was Hooda. IO checked the pistol and found containing two live cartridges, one in the chamber and other in the magazine. IO prepared the sketch of pistol and cartridges and seized the same. Thereafter, IO went to DDU Hospital. Crime team reached there and inspected the spot. IO returned to the spot and lifted one live cartridge and one led (sikka) from the spot and sealed it in a plastic container. It was seized vide memo Ex.PW4/A.
21. However, PW-4 failed to identify the accused as well as the case property due to lapse of time. He was cross- examined by the state and after being shown the case property produced by the MHC(M), he correctly identified the pistol, the two empty cartridges and one led/sikka and one live cartridge recovered from the spot. He also admitted that the name of the accused is Gurpreet @Lali S/o Sh. Jagtar Singh R/o New Mahavir Nagar, Tilak Nagar, Delhi and identified him on being pointed out by Learned APP. During cross-examination by Ld. Defence counsel, PW-4 admitted that he identified the accused as per his guess.
FIR no..119/16 State Vs. Gurpreet @ Lali Page 14 of 3522. PW-5 Dr. Ashish Kapoor deposed that Dr. Deepti, SR Dental had examined the patient Kakaram Sharma on the point of dental. He identified the handwriting and signatures of Dr. Deepti on the attested copy of the back portion of MLC no. 741 of Kakaram, Mark A, from portion 'A to Al'. As per the dental opinion, the nature of injury was 'simple'.
23. PW-6 Dr. Sanjay deposed that on 03.02.2016 at about 10:10 pm, patient Kakaram S/o Somraj Sharma was examined by Dr. Kamal Kant Jain vide MLC No.741 in his supervision. The MLC is Ex. PW6/A. The patient has sustained gunshot injury in area between nose and upper lip (nasal labial bridge) and a lacerated wound on left occipital region of skull. After examination, patient was referred to plastic surgeries, dental and ENT for further management.
24. PW-7 HC Surender deposed that on 03.02.2016, he was duty officer from 4.00 p.m. to 12.00 midnight. He proved DD no.90A with respect to the call regarding robbery near Metro Pillar No. 762, Rama Park, Najafgarh Road, Uttam Nagar, Delhi from the control room at about 09:40 a.m. Same is Ex.PW7/A. On the same day at about 10.15 p.m. call was received from DDU Hospital regarding admission of injured Kaka Ram, which was recorded vide DD No. 77-B. Same is Ex.PW7/B. At about 07.40 p.m, he recorded DD no.70-B regarding patrolling duty of police officials including that of HC J.K.Thomas, which is Ex.PW7/C. He FIR no..119/16 State Vs. Gurpreet @ Lali Page 15 of 35 also got recorded the present FIR through computer operator on basis of rukka sent by ASI Dharambir. The computerized copy of FIR Ex.PW7/D and certificate u/S 65-B of Indian Evidence Act is Ex.PW7/E. His endorsement on rukka is Ex.PW7/F.
25. PW-8 Pradeep Narayan Srivastav, Associate Vice President (HR) with Scientific Security Management Services Pvt. Ltd had provided the following documents to police on 05.02.2016 vide covering letter Ex.PW8/A:-
i) Appointment letters in respect of Suman Kerketta and Sandeep (Custodians) and Ashok Kumar (Driver) (Mark A colly);
ii) Cash loading indent dated 03.02.2016 in respect of Kotak Bank ATM, Najafgarh, Route No. WDE-15 (Mark B colly);
iii) ATM Custodian Shuffling record of Kotak Bank ATMs, Route No. WDE-15;
iv) Particulars of custodians/drivers of the above- mentioned employees (Ex.PW8/B); and
v) application for employment issued by M/s Om Security & Services (A contractor) in respect of Kaka Ram Sharma and Kishan Lal (Gunmen) (Mark C).
26. PW-9 Retired SI Dharambir reached the spot along with Ct. Rajbir on receiving DD no.90A, where they met HC J. K. Thomas and complainant Harbans Hooda. Accused Gurpreet @ Lali was produced before him by Harbans Hooda. He recorded the statement of Harbans Hooda. HC FIR no..119/16 State Vs. Gurpreet @ Lali Page 16 of 35 J. K. Thomas produced one country made pistol and told him that accused while committing the crime was pushed by the complainant and the weapon fell down from his hand and he picked the said weapon. On checking, the weapon was found containing one live cartridge in the barrel and another live cartridge in the magazine. Both the cartridges were taken out from the weapon and he prepared sketch of the weapon as well as cartridges. The weapon and live cartridges were sealed in pullanda and seized by him. He left HC J. K. Thomas at the spot and went to DDU hospital, where he obtained MLC of injured Kaka Ram. He prepared rukka on the statement of complainant vide Ex.PW9/A and handed it over to Ct. Rajbir for registration of FIR. The injured was under
treatment hence, he did not record his statement. He returned to the spot and got the spot inspected and photographed by Crime team. One live cartridge and one used cartridge were sealed in a pullanda and seized from the spot vide seizure memo Ex.PW1/C. He prepared site plan Ex.PW1/E. He arrested the accused vide arrest memo Ex.PW9/C and conducted his personal search memo Ex.PW9/D. One plastic bottle mentioning the words "self defence pepper chilli body guard" was recovered from the accused, which was seized vide seizure memo Ex.PW9/B. He also recorded disclosure statement of the accused Ex.PW9/E. Thereafter, he again went to DDU hospital and seized three sealed pullandas and one sample seal vide seizure memo Ex.PW9/F. FIR no..119/16 State Vs. Gurpreet @ Lali Page 17 of 35
27. PW-9 contacted the HR Pradeep Narain of S.S.M.S. and seized the documents regarding the guards and other staff employed in the company including cash van employees. The said documents are already exhibited as Ex.PWB/A, Mark B (colly), Ex.PW8/B and Mark C (colly). He also gave him a CD pertaining to inside of ATM booth of Kotak Mahindra. HR did not handover any letter concerning the CD or Certificate under Section 65 B Indian Evidence Act to him. He did not send the said CD to FSL for comparison.
28. He obtained opinion on the MLC of injured. The sealed pullandas were sent to FSL, Rohini. He collected the result from the FSL Office. He also obtained permission under Section 39 Arm Act from the office of DCP. He identified the country made pistol Ex.P1, one live cartridge and one deformed lid of the bullet, which were lifted from the spot Ex.P4 and Ex.P5, and one pepper spray with the words "Bodyguard Self Defence Pepper Spray" recovered from the accused Ex.P6. He denied the suggestion that there was CCTV camera installed at adjoining ATM Booth or that he deliberately did not seize the same CCTV footage. He admitted that the complainant has not provided him any photographs of the spot during investigation.
29. PW-10 Inspector Devender Singh, Incharge Crime team inspected the crime scene on 03.02.2016 and his report is Ex. PW10/A. PW-11 HC Amit, photographer, Mobile Crime team took 10 photographs of the place of FIR no..119/16 State Vs. Gurpreet @ Lali Page 18 of 35 occurrence which are Ex.PW11/A (colly). The negatives of the said photographs Ex.PW11/B (Colly). PW-12 Sh. Avinash Srivastav, FSL expert had examined one full sleeves white and blue shirt with brown stains of the injured. On examination, no suspected bullet hole was found on the shirt. His report is Ex.PW12/A.
30. PW-13 Dr. Puneet Puri had examined one improvised pistol of 7.65 mm bore and two 7.65 mm cartridges which were marked as exhibits F-1, A-1 and A-2 respectively, one 7.65 mm cartridge and one deformed bullet exhibits A-3 and EB-1 respectively. On examination, he found that as per the swab taken from the barrel of improvised pistol marked exhibit F-1 before test firing showed sign of discharge. The improvised pistol exhibit F-1 was in working order. Test fire was conducted by using the cartridges marked exhibit A-1, A-2. The test fired cartridge cases were marked as TC-1, TC-2 and two recovered test fired bullets were marked as TB-1 and TB-2. The cartridge marked exhibit A-3 was misfired and no further opinion could be given whether it has been misfired through the improvised pistol marked exhibit F-1 or not as the individual characteristics of firing pin marks were insufficient for comparison. The deformed bullet marked EB-1 was corresponding to the bullet of 7.65 mm cartridge and no opinion could be given whether the evidence deformed bullet has been discharged through the improvised pistol exhibit F-1, as the individual characteristics of striations present on evidence bullet FIR no..119/16 State Vs. Gurpreet @ Lali Page 19 of 35 marked EB-1 and on test fired bullets marked TB-1 and TB-2 were insufficient for comparison. The improvised pistol exhibit F-1 was a firearm, the cartridges marked exhibits A-1 to A-3 and the deformed bullet marked exhibit EB-1 were ammunition as defined in Arms Act.
31. PW-14 Sh. Santosh Kumar Meena, DIG had accorded the sanction for prosecution of the accused under Section 39 of Arms Act vide his order dated 17.01.2018, Ex.PW14/A, after perusing the record and after being satisfied that on 03.02.2016 accused Gurpreet Singh had in his conscious possession one improvised pistol of 7.65 mm with two live cartridges of 7.65 mm without license in contravention of Section 3 of Arms Act 1959.
32. PW-15 HC Mukesh Kumar, MHC(M) had brought the register no. 19 and 21 pertaining to the entries related to the present case. As per register no. 19, entry no.4192 Ex.PW15/A (OSR), ASI Dharambir Singh had deposited 06 sealed parcels along with sample seal in the Malkhana. Two sealed parcels with the seal of DS along with sample seals were sent to FSL Rohini through HC Yadram vide RC no.56/21/16 on 22.04.2016 and the same were re- deposited by him in the Malkahana on the same day. The said parcels were again taken to FSL Rohini vide RC no.66/21/16 on 05.05.2016 and were re- deposited by him in the Malkhana on the same day. The said parcels were taken by IO/ASI Dharambir Singh to FSL Rohini vide RC no.76/21/16 on 18.06.2016 and were deposited by him in FIR no..119/16 State Vs. Gurpreet @ Lali Page 20 of 35 the FSL. Three sealed parcels sealed with the seal of CMO DDU were sent to FSL Rohini vide RC no.55/21/16 through HC Yadram on 22.04.2016. One sealed parcel sealed with the seal of CMO DDU hospital was taken to FSL Rohini by IO/ASI Dharambir vide RC no.67/21/16 on 05.05.2016. The photocopies of RC no.56/21/16, 66/21/16, 55/21/16, 67/21/16 and 76/21/16 are Ex.PW15/B1 to Ex.PW15/B5 respectively (OSR). The photocopies of FSL acknowledgments dated 05.05.2016 and 18.05.2016 Ex.PW15/C1 and Ex.PW15/C2 (OSR).
33. After conclusion of Prosecution Evidence, statement of accused was recorded under Section 313 Cr.P.C. The accused denied the entire prosecution evidence and stated that he has been falsely implicated in the present case by the IO to close this case as he was previously involved in 2-3 other criminal matters. He stated that he was not present at the spot at the time of alleged incident and no recovery of weapon and ammunition as alleged were made against him.
34. The accused did not lead any defence evidence despite opportunity and case was listed for final arguments. Detailed verbal submissions were made by Learned APP for state as well as by Learned defence counsel.
35. Ld. Counsel for accused has submitted that the accused has been falsely implicated in the present case. There is no FIR no..119/16 State Vs. Gurpreet @ Lali Page 21 of 35 incriminating evidence against him on record. The testimony of all the eye witnesses i.e. PW-1, PW-2 and PW-3 suffers from various contradictions. Further, the injured Kaka Ram has not been examined by the prosecution. He has further submitted that the IO did not conduct a fair investigation, as he failed to join the wife of Harbans Hooda as witness even though she is stated by PW-1 to be present at the spot. He has further failed to examine Ct. Naresh as a witness, who was on patrolling duty alongwith PW-4 J.K.Thomas. Ld. Counsel further submitted that no CCTV footage was seized by the IO even though CCTV camera was installed near the ATM and is clearly visible in the photographs Ex. PW11/A.
36. Learned defence counsel has further submitted that the pistol was not recovered from the possession of the accused. PW-2 and PW-3 have specifically denied that the accused was carrying any weapon or pistol. Further, as per PW-1, the assailants/robbers were wearing helmets, however, no helmet was recovered from the spot. He has also alleged that the photographs Ex.PW-X are manipulated and cannot be relied upon. Also, PW-1 has failed to specify who had taken the said photographs and why he did not handover the said photographs to the IO during the investigation. The FSL report also does not support the prosecution story. No finger prints of the accused was found on the recovered pistol.
37. Per contra, Learned Additional PP for the state has submitted that the prosecution has proved its case beyond FIR no..119/16 State Vs. Gurpreet @ Lali Page 22 of 35 reasonable doubts. She had submitted that PW-1 i.e. the complainant has given a truthful and reliable account of the entire incident. PW-2 and PW-3 have duly supported the prosecution story and have identified the accused as one of the assailants. There are no major contradictions in the testimonies of these witnesses and can be safely relied upon. Ld. Additional PP has further submitted that even though the injured guard/gunman Kaka Ram could not be examined as his whereabouts could not be traced out, the fact that he had suffered gunshot injury is sufficiently proved by the MLC Ex.PW6/A. She has further submitted that the failure of IO to examine complainant's wife or Ct. Naresh does not hamper the case of the prosecution as other eye witnesses have already supported the prosecution story. It is the quality and not quantity of evidence which matters in a criminal trial. Similarly, non-seizure of the CCTV footage is not fatal to the case of the prosecution as eye witness were available at the spot and they have been examined as prosecution witnesses in the court where they have supported the prosecution story.
38. Ld. Additional PP has further submitted that PW-1 was subjected to a lengthy and detailed cross-examination, spanning many dates of hearing. Hence, certain discrepancies are bound to creep in his testimony. However, those discrepancies are not sufficient to discard the prosecution story. Further, none of the prosecution witnesses have any reason to falsely implicate the accused.
FIR no..119/16 State Vs. Gurpreet @ Lali Page 23 of 35Court findings
39. I have heard the final arguments addressed on behalf of the accused and the State and perused the entire record carefully.
40. The accused has been charged for offence of robbery of cash from the employees of Kotak Mahindra and causing hurt to gunman Kaka Ram Sharma by filing upon his face with pistol. He is further accused of carrying one improvised pistol of 7.65 mm alongwith cartridges of 7.65 mm without any license.
41. The offence of robbery is defined under Section 390 IPC, as per which any kind of theft is robbery if in order to committing of the said theft, or in committing the theft, or in carrying away or attempting to carrying away property obtained by theft, the offender for that end, voluntarily causes or attempts to cause to any person death or hurt or wrongful restraint, or fear of instant death or of instant hurt or of instant wrongful restraint. Section 397 IPC provides that if, at the time of committing robbery, the offender uses any deadly weapon or causes grievous hurt to any person, or attempts to cause death or grievous hurt to any person, the imprisonment with which such offender shall be punished shall not be less than 7 years.
42 The offence of theft is defined under Section 378 IPC as per which whoever, intending to take dishonestly any movable property out of the possession of any person FIR no..119/16 State Vs. Gurpreet @ Lali Page 24 of 35 without that person's consent, moves that property in order to such taking, is said to commit theft.
43. To prove a robbery under Section 390 IPC, prosecution has to establish that :
i) in order to commit theft, or while committing the theft, or in carrying away or attempting to carry away the property obtained by theft;
ii) The accused voluntarily causes or attempt to cause to any person death, or hurt, or wrongful restraint or fear of instant death or of instant hurt or instant wrongful restraint.
44. Section 394 IPC is attracted if hurt is caused voluntarily in committing robbery or while attempting to commit robbery. This section is applicable to the person who has actually caused the hurt as well as the other accused who has not actually caused the hurt but was jointly concerned in the causes of hurt. Hence, the perpetrator of hurt as well as the other who were jointly concerned in committing or attempting to commit robbery are constructively liable under this section. Section 397 IPC prescribes punishment for use of deadly weapon or causing grievous hurt to a person, or attempt to cause death or grievous hurt while committing robbery. Unlike Section 394 IPC, the concept of vicarious/constructive liability is not applicable to Section 397 IPC.
45. Section 25 Arms Act,1959 prescribes punishment for FIR no..119/16 State Vs. Gurpreet @ Lali Page 25 of 35 possession of any prohibited arms and ammunition. Section 27 Arms Act prescribes punishment for using arms and ammunition without license or prohibited arms and ammunition.
46. In the present case, the star witness of the prosecution are PW-1 Harbans Hooda, who had nabbed the accused; and PW-2 Sandeep and PW-3 Suman Karketta, employees who had come to fill the ATM with cash. All the three witnesses have duly identified the accused before the court. However, there are certain discrepancies in the testimony of all the three witnesses, as pointed by Ld. Defence counsel.
47. PW-1 has given slightly different versions of the incident in his examination-in-chief which was recorded on two separate dates. However, it is seen that his testimony has remained intact on all the material facts. PW-1 deposed in his examination-in-chief dated 03.11.2017 that the guard had pushed the accused and he sat over him, however, in his examination dated 22.02.2018, he stated that he himself had pushed the accused due to which he fell on the ground. Secondly, in his examination dated 03.11.2017, PW-1 deposed that he had gone to the park with his wife for evening walk while in his examination dated 22.02.2018 he deposed that he had gone to withdraw cash from the ATM.
FIR no..119/16 State Vs. Gurpreet @ Lali Page 26 of 3548. These discrepancies, however, are minor ones and do not strike at the root of the prosecution story. It would not be out of place to refer to the case titled as "Vijay @ Chinee v State of M.P.(2010) 8 SCC 191" wherein it was observed by Hon'ble Supreme Court of India, "19. It is settled legal proposition that while appreciating the evidence of a witness, minor discrepancies on trivial matters, which do not affect the core of the prosecution case, may not prompt the court to reject the evidence in its entirety.
20. In State of Rajasthan v. Om Prakash [(2007) 12 SCC 381], while dealing with a similar issue, this Court held that: (SCC p. 384, para 12) "12. ... Irrelevant details which do not in any way corrode the credibility of a witness cannot be levelled as omissions or contradictions."
21. In State of U.P. v. M.K. Anthony [(1985) 1 SCC 505], this Court laid down certain guidelines in this regard, which require to be followed by the courts in such cases. The Court observed as under : (SCC pp. 514- 15, para 10) "10. While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the court to scrutinize the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witness and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief. Minor discrepancies on trivial matters not touching the core of the case, hyper-technical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole. If the court before whom the witness gives evidence had the opportunity to form the opinion about the general tenor of evidence given by the FIR no..119/16 State Vs. Gurpreet @ Lali Page 27 of 35 witness, the appellate court which had not this benefit will have to attach due weight to the appreciation of evidence by the trial court and unless there are reasons weighty and formidable it would not be proper to reject the evidence on the ground of minor variations or infirmities in the matter of trivial details. Even honest and truthful witnesses may differ in some details unrelated to the main incident because power of observation, retention and reproduction differ with individuals. Cross-examination is an unequal duel between a rustic and refined lawyer."
49. Similarly, in the case titled as "Sunil Kumar Sambhudayal Gupta (Dr.) v. State of Maharashtra"
(2010) 13 SCC 657, Hon'ble Supreme Court observed, "30. While appreciating the evidence, the court has to take into consideration whether the contradictions/omissions had been of such magnitude that they may materially affect the trial. Minor contradictions, inconsistencies, embellishments or improvements on trivial matters without effecting the core of the prosecution case should not be made a ground to reject the evidence in its entirety. The trial court, after going through the entire evidence, must form an opinion about the credibility of the witnesses and the appellate court in normal course would not be justified in reviewing the same again without justifiable reasons. (Vide State v. Saravanan [(2008) 17 SCC 587 : (2010) 4 SCC (Cri) 580 : AIR 2009 SC152]) Where the omission(s) amount to a contradiction, creating a serious doubt about the truthfulness of a witness and the other witness also makes material improvements before the court in order to make the evidence acceptable, it cannot be safe to rely upon such evidence. (Vide State of Rajasthan v.
Rajendra Singh [(2009) 11 SCC 106])
50. Ld. Defence counsel has also assailed the testimony of PW-2 and PW-3 submitting that the truthfulness of the said witnesses has been demolished in their cross-
FIR no..119/16 State Vs. Gurpreet @ Lali Page 28 of 35examination. None of them have identified the accused as the one who had pointed gun at PW-3, or the one who had been apprehended at the spot.
51. PW-2/Sandeep has duly identified the accused as the person apprehended by the police at the spot. He denied the suggestion of ld. APP that the accused had pointed out the pistol on the temple of Suman Karketta, or that the accused was carrying a pistol which fell on the ground. During cross-examination, he admitted that he did not observe who had fired from the gun or the person carrying the pistol. PW-3 Suman Kerketta also failed to identify the accused as the robber who had put pistol on his temple and was pushed by a public person. During cross-examination, he admitted that he had not seen the person who had fired from the gun. He had also not seen the person who was lifting the shutter and pushing the gate as he was wearing helmet, nor did he see the face of the person having the pistol or who had pointed the gun at his temple. However, he admitted that the accused Gurpreet was apprehended at the spot.
52. Hence, from the testimony of PW-2 and PW-3 it is clear that they had seen the accused present at the spot that the accused was apprehended by the public and police. However, they failed to deposed whether the accused was carrying a pistol or firearm and whether it was the accused who had fired gunshot at the injured Kakaram by the pistol.
FIR no..119/16 State Vs. Gurpreet @ Lali Page 29 of 3553. The testimony of PW-4 SI J. K. Thomas is crucial as he had picked up the pistol lying at the spot & handed it over to IO. He also deposed that accused was apprehended by a person namely Hooda (PW-1 Harbans Hood). Though PW-4 failed to identify the accused initially, however, when Ld. APP pointed out the accused, he identified the accused as the person who was apprehended at the spot.
54. From the testimony of all the above said witnesses, the prosecution has successfully established the presence of the accused at the spot and the factum of his being apprehended at the spot. PW-1 has clearly stated that the accused was one of the assailants/robbers who had come to rob the ATM. He is the one who had apprehended the accused. PW-2 and PW-3 had also seen the accused at the spot and identified him as the person who was apprehended at the spot. PW-4 also identified him as the person apprehended by PW-1 at the spot.
55. The prosecution has relied on four photographs Ex.PW-X, filed by PW-1 during his cross examination. In these photographs the accused is clearly visible and the complainant/PW-1 is seen pining the accused to the ground. It has been argued that why the complainant would take the trouble of getting manipulated photographs made and that these photos clearly show that the accused was apprehended by PW-1 at the spot. Per contra, Ld FIR no..119/16 State Vs. Gurpreet @ Lali Page 30 of 35 defence counsel has submitted that the se photographs are not proved as per law.
56. PW-1 could not recall name of the person who had taken the said photographs. He could neither produce the mobile phone by which the said photographs were taken nor filed any certificate u/S 65-B Indian Evidence Act. Hence, the photographs Ex. PX cannot be read in evidence.
57. In view of the above discussion, the court is of the considered opinion that PW-1 to PW-3 have given a detailed and lucid account of the incident. Though there are minor discrepancies in their testimony, those do not strike at the root of the prosecution case. The identity of the accused has been firmly established by the prosecution. There is no reason for the witnesses to wrongly or falsely implicate the accused. The prosecution has successfully proved that the accused was present at the spot and had tried to loot the cash bag from the possession of PW-3.
58. Another argument raised by Ld. Defence counsel is that the injured Kaka Ram was not examined by the prosecution and hence, it has not been proved that the accused had caused gunshot injury to him. It is correct that the injured Kakaram could not be examined as he remained untraceable. However, it has been duly proved that during the alleged incident, Kakaram was shot and had a gunshot injury on his case. PW-1 has clearly stated that one of the assailants had fired a gunshot at one of the guards. PW-2 and PW-3 had heard the sound of the FIR no..119/16 State Vs. Gurpreet @ Lali Page 31 of 35 gunshot and have deposed that their guard Kakaram was injured. The MLC Ex.PW6/A clearly shows that the injured Kaka Ram Sharma had received a bullet shot injury on his face.
59. The prosecution has also proved that PW-2 Sandeep, PW-3 Suman Karketta, two guards namely Kishan Lal and Kakaran and driver Ashok Kumar were working with the firm of PW-8 and were present at the spot alongwith the cash to deposit in the ATM machine.
60. Another defence raised by the defence counsel is that the IO failed to include the name of complainant's wife and of Ct. Naresh who was on patrolling duty alongwith HC J.K. Thomas. However, their non-examination is not fatal to the case of the prosecution. IO is not required to record the statement of each and every person present at the spot. It is a settled law that it is not the quantity but the quality of evidence that matters. Also, Ct. Naresh was not even present at the spot. Hence, non-examination of complainant's wife and Ct. Naresh does not hamper the case of the prosecution.
61. As far as non-seizure of CCTV footage by the IO is concerned, failure of IO to seize the CCTV camera is not fatal to the present case as the eye-witnesses have given a trustworthy and reliable account of the entire incident and have duly identified the accused. The law relating to CCTV footage is quite clear that CCTV footage is considered an important piece of evidence in the cases FIR no..119/16 State Vs. Gurpreet @ Lali Page 32 of 35 where the entire case is based on circumstantial evidence, or when no eye-witness is available. However, in the case like the present one, where eye witnesses have appeared in witness box and deposed before the court, the importance of CCTV footage gets diminished. It is a settled principle of law that the ocular evidence is the best evidence. If the account given by the eye witness or the injured is trustworthy and credible, then non-seizure/non-production of the CCTV footage is immaterial. In the present case, since PW-1, PW-2 and PW-3 have supported the prosecution story and have specifically deposed about the accused at the spot during the incident, hence, non- production of CCTV footage would not lead to adverse inference against the prosecution.
62. The accused has taken the defence that he was lifted from his house by the police and falsely implicated in this case as he was wanted in other cases also. However, his presence at the spot has been proved by the prosecution. He did not make any complaint to the senior authority regarding his illegal detention or arrest nor he led any evidence to show that he has been illegally apprehended by the police.
63. In view of the above discussion, this court is of the considered view that the prosecution has successfully proved that the accused had caused hurt to the guard Kakaram while attempting to commit robbery at the Kotak Mahindra ATM. Hence, the accused is liable to be convicted for offence under Section 394 IPC.
FIR no..119/16 State Vs. Gurpreet @ Lali Page 33 of 3564. However, as far as section 397 IPC is concerned, Section 34 or 149 IPC have no application to a case covered by Section 397 IPC. Section 397 IPC relates only to the offender who actually uses the deadly weapon. Guilt of the accused under this section can be attributed only to that offender who uses deadly weapons or causes grievous hurt to anyone during the course of commission of robbery as Section 397 IPC negates the use of principle of vicarious liability u/s 34 IPC.
65. In the present case, though PW-1 has specifically deposed that the accused was carrying a pistol, however in his cross-examination, he admitted that the accused had not fired at the spot. PW-2 and PW-3 have also failed to deposed that the accused was the one who had fired the gunshot. They have failed to clearly testify that it was the accused who was holding the firearm and had fired at the guard. Hence, though the prosecution has proved that the accused was found in possession of the country made pistol Ex.P1, it has not been proved that he had used the same to shoot at the gunman Kaka Ram or had used the same at all. It appears from the testimony of PW-1 that one more assailant was carrying a firearm and hence, chances cannot be ruled out that the gun shot, which had injured Kaka Ram was fired by the other assailants, especially when PW-1 has admitted in his cross examination that the accused had not fired any gunshot at the spot.
FIR no..119/16 State Vs. Gurpreet @ Lali Page 34 of 35FINAL DECISION
66. In view of the above discussion, accused Gurpreet @ Lali is convicted for offence u/s 394 IPC and Section 25 Arms Act. However, he is acquitted for offence u/s 397 IPC and Section 27 Arms Act.
67. Now to come up for arguments on the point of sentence on 17.02.2025.
68. Let copy of this judgment be supplied to the accused free of cost.
Digitally signed by SAUMYA CHAUHAN SAUMYA Date: CHAUHAN 2025.02.17 16:33:16 +0530 Announced in the open court (Saumya Chauhan) today i.e. 14.02.2025 ASJ (FTC)-02, West Tis Hazari Courts, Delhi
Certified that this judgment contains 35 pages and each page Digitally signed by SAUMYA bears my signatures. SAUMYA CHAUHAN CHAUHAN Date:
2025.02.17 16:33:25 +0530 (Saumya Chauhan) ASJ (FTC)-02, West Tis Hazari Courts,Delhi 14.02.2025 FIR no..119/16 State Vs. Gurpreet @ Lali Page 35 of 35