Delhi District Court
State vs . on 31 October, 2022
FIR No. 168/18 P.S. Uttam Nagar U/s. 307/397/34 IPC & 27/54/59 Arms Act IN THE COURT OF SHRI VIPLAV DABASS: ADDL. SESSIONS JUDGE : FAST TRACK COURT: SOUTH-WEST DISTRICT DWARKA COURTS: NEW DELHI SC No. 532/2018 State Vs. 1. Danish @ Parvej S/o. Sh. Babu Khan R/o. H. No. B-738, J.J. Colony, Hastsal, Uttam Nagar, New Delhi. 2. Jafar @ Hasim S/o. Khalil Ahmad R/o. H. No. B-286, J.J. Colony, Hastsal, Uttam Nagar, New Delhi. CNR No. DLSW01013592018 FIR No. 168/18 Police Station Uttam Nagar Under Sections 307/394/397/34 IPC & 27 Arms Act Date of institution 04.06.2018 Date of committal to Sessions 09.07.2018 Court Date of transfer to this court 08.09.2022 Date on which judgment was 31.10.2022 reserved Date on which Judgment 31.10.2022 pronounced Final Order Acquitted State V/s Danish @ Parvej & Ors. Page 1 of 29 FIR No. 168/18 P.S. Uttam Nagar U/s. 307/397/34 IPC & 27/54/59 Arms Act JUDGMENT
BRIEF FACTS OF THE CASE:
1. The case of prosecution is that on 26.02.2018 at about 10.00 pm in front of H.No. E-12, Om Vihar, Phase-5, Uttam Nagar, New Delhi accused persons namely Jafar @ Hasim and Danish @ Parvej along with other associates (not arrested) in furtherance of their common intention, attacked the victim Gagan Dhingra with bricks, leg and fist blows. The accused Danish @ Parvej also fired twice upon person of complainant Gagan Dhingra by using deadly weapon(Desi Katta). The accused persons caused grievous injury to victim/complainant and also committed robbery of Rs. 60,000/- by forcibly taking the said amount from the complainant Gagan Dhingra. On the basis of aforesaid allegations, present FIR No. 168/18, under section 307/397/34 IPC & 27/54/59 Arms Act was registered.
2. After completion of investigation, charge sheet was filed in court against accused persons and Ld. Magistrate took cognizance of offences alleged. On 09.07.2018, after compliance of section 207 Cr.P.C, the present case was committed to court of Sessions.
3. After hearing arguments on point of charge, on 21.12.2018, as a prime facie case was made out, charge for the offence punishable u/s 307/394/34 IPC was framed against the accused Jafar @ Hasim and separate charge under section 307/394 read with section 397/34 IPC and 27 Arms Act was State V/s Danish @ Parvej & Ors. Page 2 of 29 FIR No. 168/18 P.S. Uttam Nagar U/s. 307/397/34 IPC & 27/54/59 Arms Act framed against accused Danish @ Parvej to which the accused persons pleaded not guilty and claimed trial. Thereafter, the matter was listed for prosecution evidence.
4. During the course of the trial, prosecution examined 6 witnesses to substantiate the accusations levelled against the accused.
5. PW-1 Sh. Gagan Dhingra was the victim who turned hostile. The testimony of this witness will be discussed in the later part of the judgment.
6. PW-2 Sh. Varun Jain was one of the eye witness of the prosecution who turned hostile. The testimony of this witness will be discussed in the later part of the judgment.
7. PW-3/ASI Prem Parkash deposed that on 26.02.2018, he was posted as HC in PS Uttam Nagar from 08.00pm to 08.00 am of 27.02.2018. He was on emergency duty along with ASI Ram Tek. On that day, DD no. 91-A regarding firing at E-12. Om Vihar Phase-5, Uttam Nagar by the robbers and a person had been injured, was received at about 10.00 pm. On receipt of this DD, he along with ASI Ram Tek reached at the said spot. They came to know from the spot that the injured was taken to Gandhi Hospital, Uttam Nagar. At the spot, he found two empty cartidges and scattered blood. They did not find any eye witness at the spot. Leaving him at the spot for prevention and supervision, ASI Ram Tek went to Gandhi Hospital, Uttam Nagar. After some State V/s Danish @ Parvej & Ors. Page 3 of 29 FIR No. 168/18 P.S. Uttam Nagar U/s. 307/397/34 IPC & 27/54/59 Arms Act time ASI Ram Tek returned to the spot again and he summoned the Crime Team. Thereafter, ASI Ram Tek prepared the rukka on DD no. 91 already Ex.
PX/A1 and sent him to police station for getting the FIR registered. He got the FIR no. 168/18 registered from the duty officer HC Sharvan Kumar and returned to the spot and handed over copy of FIR and original rukka to ASI Ram Tek. In the meanwhile, the officials of the crime team reached and inspected the spot and took the photographs from various angles. Thereafter, IO lifted two empty cartridge and kept them in a plastic container and sealed with the seal of RT and seized it vide memo Ex. PW-3/A. Thereafter, IO lifted the blood lying on the spot with the help of cotton and kept it in a plastic container and sealed it with the seal of RT and seized it vide memo Ex. PW- 3/B. IO also lifted earth control from the spot and kept it in a plastic container and sealed it with the seal of RT and seized it vide memo Ex. PW-3/C. Thereafter, IO had also prepared the sketch of empty cartridges lifted from the spot before they were sealed and seized vide memo Ex. PW-3/D. IO prepared the site plan Ex. PW-3/E on the pointing out of witness Varun Jain who was found present at the spot. Statement of Varun Jain was recorded by IO. Statements of the officials of crime team were also recorded. Thereafter, he along with IO went to Gandhi Hospital from where they came to know that the injured Gagan had gone to BL Kapoor Hospital. Thereafter, they reached at BL Kapoor Hospital. The relatives of injured Gagan (inadvertently mentioned as Varun Jain) was about to take injured to AIIMs Hospital. There on the directions of ASI Ram Tek, Sh. Jai the brother of injured Gagan (inadvertently mentioned as Varun Jain) had produced the blood stained State V/s Danish @ Parvej & Ors. Page 4 of 29 FIR No. 168/18 P.S. Uttam Nagar U/s. 307/397/34 IPC & 27/54/59 Arms Act clothes of injured Gagan (inadvertently mentioned as Varun Jain) and same were in torn condition. All said clothes were sealed with the seal of RT and seized vide memo Ex. PW-3/E. IO recorded statement of Jai and they returned at PS where his statement was recorded by IO. The identity of case property was not disputed by the Ld. Defence counsel and same is already exhibited as Ex. P-2, P-3 and Ex. P-1.
During cross-examination conducted by Ld. Defence counsel, PW-3 deposed that the information vide DD No. -91-A was received from mobile phone no. 7982213994 of Varun Jain. He denied that he does not join the investigation with IO, that no exhibits were lifted from the spot or that Sh. Jai had not produced torn blood stained clothes in the hospital in his presence, that site plan was not prepared by the IO at the spot in his presence, that the false and incorrect statement of Sh. Varun was recorded by IO in order to falsely implicate the accused persons, that all above documents were prepared by the IO while sitting in the PS in order to falsely implicate the accused persons in this case and that he was deposing falsely.
8. PW-4 Sh. Jai deposed that he was younger brother of injured Gagan Dhingra. On 27.02.2018, he was told by Sh. Varun Jain, a friend of his brother Gagan Dhingra in AIIMS hospital that when his brother Gagan Dhingra was going to meet his friend Varun Jain at 40 foota road near a narrow street at about 09.45 pm on 26.02.2018, some boys came from behind and as soon as they came they started beating his brother Gagan Dhingra with legs, blows and bricks and someone amongst those boys had fired a shot with a desi katta State V/s Danish @ Parvej & Ors. Page 5 of 29 FIR No. 168/18 P.S. Uttam Nagar U/s. 307/397/34 IPC & 27/54/59 Arms Act upon his brother. He stated that on 27.02.2018, when his brother Gagan Dhingra was being shifted to AIIMs Hospital, he had produced the torn blood stained clothes of his brother Gagan before IO who sealed the same with the seal of RT and put them in a pullanda. His statement was recorded by IO. The clothes are already Ex. P-1(colly).
Court permitted the Ld. Addl. PP for State to cross-examine the witness as the witness was resiling qua the name of the assailant.
During his cross-examination conducted by Ld. Addl. PP for State he denied that he was told by Varun Jain that it was a boy namely Danish who had fired a shot with the country made pistol upon his brother Gagan Dhingra, that he had stated this fact in his statement recorded by IO on 27.02.2018 under section 161 Cr.P.C and he volunteered that he was not told the name of Danish being the assailant and that being won over by accused persons he is deposing falsely.
9. PW-5 ASI Ramtek deposed that on 26.02.2018, he was on emergency duty along with HC Prem Prakash. His duty hours were from 08.00 pm to 08.00 am. On receipt of DD no. 91-A already Ex. PX1, he along with HC Prem Prakash reached at the spot. He inspected the spot and found that one person was injured who was taken to Gandhi Hospital, Binda Pur for his treatment. Thereafter, he went to Gandhi Hospital where he found that injured Gagan Dhingra admitted. He sought permission from doctor who opined that the injured was not fit for giving his statement. He came back to spot where State V/s Danish @ Parvej & Ors. Page 6 of 29 FIR No. 168/18 P.S. Uttam Nagar U/s. 307/397/34 IPC & 27/54/59 Arms Act he met HC Prem Prakash. He prepared rukka and sent through HC Prem Prakash for registration of FIR.
After registration of FIR, HC Prem Prakash and SI Gajender came back at the spot along with copy of FIR Ex. PX2 and original rukka. Therefore, the present case was marked to SI Gajender.
He called the Crime Team. The Crime Team took photographs of the spot. On inspection of the spot, two empty cartridges Ex. PW-3/A were recovered from the spot. He had also collected blood stained clothes Ex. P-1 and earth control ex. PW-3/C and sealed them with the seal of RT. The identity of the case property was not disputed and the same has already been exhibited in the testimony of other PWs.
During his cross-examination by Ld. Additional PP for State he deposed that he left the PS at about 10.00pm. The spot was room of the house. He does not remember how many members of the family were present at that time. He had also inquired from the neighbours about the incident but no one gave their statement. There was no one present from the family of the injured in the Hospital. Vol. Only injured was admitted in the hospital.
He came back to the spot from the hospital at about 11.00 pm. At that time also no family member of the injured was present in the house. The incident took place in the room of approximately 15/15 adjacent to gali. He could not tell the exact number of persons gathered when he came to the spot from hospital. He asked the public persons present there to join investigation. However, he does not remember their names. He stated that as no public State V/s Danish @ Parvej & Ors. Page 7 of 29 FIR No. 168/18 P.S. Uttam Nagar U/s. 307/397/34 IPC & 27/54/59 Arms Act persons had joined the investigation, the documents prepared by him does not bear signatures of any independent person.
He admitted that the names of the robbers were not mentioned in the DD No. -91/A. He stated that the telephone number of caller was mentioned in the DD No. -91A and that he does not know the telephone number of the caller.
He denied that he never went to the spot or that all the documents were prepared while sitting in the police station, that firstly he had not visited the hospital and thereafter, did not go back to the spot or that thereafter he does not investigate the case at the spot and that he was deposing falsely being government official.
10. PW-6 SI Gajender deposed that on 27.02.2018, he was posted at PS Uttam Nagar. On that day, further investigation of this case was entrusted to him by the SHO concerned by way of handing over the case file through MHC (R ). During investigation, he came to know that injured Gagan Dhingra was under medical observation in AIIMS (Trauma Centre) and was unfit for statement till date. Thereupon, he went to AIIMS (Trauma Centre) where injured Gagan Dhingra was declared as 'fit for statement' by doctor concerned. Thereafter, the statement of Gagan Dhingra was recorded by him as per his narration under Section 161 CrPC and he went to premises no. E 12 Om Vihar, Phase 5 Uttam Nagar, where he tried to collect the CCTV footage of incident in question but no such footage could be collected.
State V/s Danish @ Parvej & Ors. Page 8 of 29FIR No. 168/18 P.S. Uttam Nagar U/s. 307/397/34 IPC & 27/54/59 Arms Act On 28.02.2018, vide DD No.4 B dated 28.02.2018, he came to know that the accused Jaffar @ Hashim and Danish @ Parvez have been arrested in case FIR No.75/18 under Section 25 Arms Act of PS Palam Village by ASI Rajinder Kumar. He also came to know that during arrest both accused persons have disclosed about the commission of the offence in question pertaining to this case i.e. case FIR No. 168/18 of PS Uttam Nagar and that both accused will be produced in the court concerned of Ld. MM, Dwarka. The true and attested copy of DD no.4 B dated 28.02.2018 of PS Uttam Nagar is on record and same is Ex.PW6/A. On the basis of information, vide DD no.4 B, he had gone to the court concerned of PS Palam Village, where he met with ASI Rajinder Kumar and he received the copies of relevant documents and he recorded the statement of Rajinder Kumar under Section 161 CrPC. On that day, he was not allowed to interrogate both accused persons in the court by Ld. MM, so he moved an application for issuing production warrants for both accused persons, to be produced in the court of PS Uttam Nagar on 05.03.2018.
On 05.03.2018, he came to court concerned of Ld. MM of PS Uttam Nagar, where the accused Jaffar @ Hasim and Danish @Parvez were produced by concerned jail authorities in muffled face. Thereupon after getting permission from the court, both accused persons were interrogated and on the basis of investigation, both accused persons were State V/s Danish @ Parvej & Ors. Page 9 of 29 FIR No. 168/18 P.S. Uttam Nagar U/s. 307/397/34 IPC & 27/54/59 Arms Act arrested and their personal search was conducted and their disclosure statement was recorded.
Application for conducting TIP proceedings of both accused persons was moved before the Ld. MM concerned and on their production before the Ld. MM concerned, both the accused persons refused to participate in the TIP proceedings. Thereafter, on his separate application, both the accused persons were remanded to Police Custody for one day to recover case property and to arrest co-accused persons. During Police Custody remand of both accused persons, they led him to the place of incident and separate pointing out memo was prepared at their instance. After their medical examination, both accused persons were lodged in the lock up and he recorded the statements of Ct. Joginder and Ct. Hari Om, who had participated in the investigation.
On 06.03.2018, witness Varun Jain came to PS and had correctly identified both the accused persons, who had committed the incident with Gagan Dhingra and he recorded the statement of Varun Jain in this regard. He stated that thereafter despite our best efforts, no clue was found regarding the other co accused persons. Thereafter both accused persons were again produced before Ld. MM in the court from where they were sent to JC.
On 20.03.2018, he collected the crime scene report prepared by the Crime Team and photographs of the spot from the office of mobile crime team.
State V/s Danish @ Parvej & Ors. Page 10 of 29FIR No. 168/18 P.S. Uttam Nagar U/s. 307/397/34 IPC & 27/54/59 Arms Act On 03.04.2018, during production of both accused persons in the court the injured Gagan Dhingra came in the court and he correctly identified both the accused persons to be culprits of the offence in question and he separately recorded statement of injured Gagan Dhingra in this regard. He got extended Judicial Custody remand of both accused persons. On the basis of material on record, the penal section 397 IPC was incorporated in this case against both the accused persons. Identify of accused Danish @ Hasim was not disputed and accused Jafar was correctly identified by witness. After completion of investigation, he filed the charge sheet before the court on behalf of the SHO concerned.
During his cross-examination conducted by ld. Addl. PP for State, he deposed that at AIIMS (Trauma Centre), mother of injured Gagan Dhingra was present but he does not remember about the other family members. He does not remember who were present in House no.E 12, Om Vihar, Phase 5, Uttam Nagar, when he came from AIIMS (Trauma Centre). He stated that perhaps no one was found present in the said house. He denied that the faces of the accused persons were shown to the witnesses before their production in the court, that accused persons were got muffled in the court premises itself not outside the court, that PW- Varun Jain refused to identify the accused persons when they were produced in the court concerned on 06.03.2018, that injured Gagan Dhingra also did not identify both the accused persons in the court on 03.04.2018, that he recorded false statement of accused without examining them in order to implicate them in this case and that he was State V/s Danish @ Parvej & Ors. Page 11 of 29 FIR No. 168/18 P.S. Uttam Nagar U/s. 307/397/34 IPC & 27/54/59 Arms Act deposing falsely. He also deposed that no memo pertaining to collection of the documents were prepared.
11. Accused admitted the factum of preparation and genuineness of DD No. 91-A Dated 26.02.2018 Ex. PX1 recorded by DO/HC Krishan Kumar, FIR No. 168/18 and certificate u/s 65-N IEA Ex. PX2 and Ex. PX2A recorded by DO/HC Swarn Kumar. MLC No. 1144/18 dated 26.02.2018 Ex. PWX3, Scene of Crime report Ex. PX4, FIR No. 75/18, PS Palam Village Ex. PX5, FSL Report No. FSL2018/B-4983 dated 08.08.2018 Ex. PX6, Ballistic report no. FSL2018/F-5286 dated 23.08.2018 Ex. PX7, TIP of accused Danish and Jafar Ex. PX8 and Ex. PX9 u/s 294 Cr.PC without admitting the truthfulness of the contents of the same. Accordingly, DO/HC Krishan Kumar, DO/HC Sharwan Kumar, Dr. Pawan Kumar, ASI Satpal, Ahlmad in the court having jurisdiction of PS Palam Village, Dr. Sumender Kaur, Dr. Avinash Srivastava and Sh. Ravinder Kumar, Ld. MM-04 were dropped from the list of witnesses.
12. Thereafter, prosecution evidence was closed vide order dated 18.10.2022 at the request of the Ld. (Sub) Additional Public Prosecutor and the matter was fixed for recording statement of accused persons under Section 313 Cr.P.C.
State V/s Danish @ Parvej & Ors. Page 12 of 29FIR No. 168/18 P.S. Uttam Nagar U/s. 307/397/34 IPC & 27/54/59 Arms Act
13. On 20.10.2022, the statements of accused Danish and Jafar under Section 313 Cr.P.C. were recorded and incriminating circumstances appearing in evidence were put to them who stated that the same are incorrect. Accused persons submitted that they have been falsely implicated in this case and they have not committed any offence. The accused persons did not opt to lead defence evidence and hence, defence evidence was closed. Thereafter, the matter was proceeded further for final arguments.
14. This court heard the arguments advanced by the Ld. (substitute) Additional PP for the State and Ld. Counsel for the accused persons and perused the record of the case.
15. Ld. Substitute Additional Public Prosecutor argued that the prosecution witnesses have clearly established the prosecution version that accused persons namely Jafar @ Hasim and Danish @ Parvej with other associates (not arrested) in furtherance of their common intention, attacked the victim Gagan Dhingra with bricks, leg and fist blows and accused Danish @ Parvej also fired twice upon person of complainant Gagan Dhingra by using deadly weapon and that the accused persons caused grievous injury to victim/complainant and also committed robbery of Rs. 60,000/- belonging to the complainant Gagan Dhingra. Ld. Additional PP for the State submitted that the duly admitted TIP proceedings wherein the accused persons had refused to participate in the TIP, further, incriminate State V/s Danish @ Parvej & Ors. Page 13 of 29 FIR No. 168/18 P.S. Uttam Nagar U/s. 307/397/34 IPC & 27/54/59 Arms Act the accused persons as they have not been able to show any reasonable ground for justifying their said refusal during the trial. He further argued that the fact that the complainant and other eye witness have turned hostile qua the identity of the accused persons as offenders and the alleged incident does not in any manner effect the veracity of the consistent testimony of the police witnesses as they did not have any previous enmity with the accused persons. He further stated that moreover the complainant/eye witnesses in such cases turn hostile due to fear of future enmity with the offenders, so the firm testimony of the police cannot be discarded in such circumstances and in these facts, both accused be convicted for the offences charged as all the ingredients necessary for completion of alleged offences are proved beyond reasonable doubt.
16. Ld. counsel for the accused argued that the complainant/PW-1 and other eye witness/PW-2 who are the Star witnesses of the prosecution have not supported its version qua happening of the incident in the alleged manner, presence of accused persons at the spot, identity of the accused persons as assailants and use of the country made pistol(katta) at the time of commission of alleged offence. He argued that the testimony of the police witnesses is of no consequence in view of hostility of the main witnesses. He further stated that nothing was recovered during the entire investigation and that the hostility of the complainant and other eye witnesses substantiates the defence version of false implication of the State V/s Danish @ Parvej & Ors. Page 14 of 29 FIR No. 168/18 P.S. Uttam Nagar U/s. 307/397/34 IPC & 27/54/59 Arms Act accused persons by manipulating the documents for working out the case. He further submitted that the accused persons in these circumstances should be acquitted.
17. In order to prove the offences punishable under section u/s 307/394/397/34 IPC as well as offence punishable under section 27 Arms Act, the prosecution was required to prove the identity of both the accused persons as assailants, the factum of sharing of common intention by both the accused persons, the factum of happening of the alleged incident of beating the victim/complainant severely with bricks, fist and leg blows and commission of robbery of Rs. 60,000/- in the alleged manner and the fact that accused Danish @ Parvej fired twice upon person of complainant Gagan Dhingra by using country made pistol.
18. For proving the aforesaid ingredients, the prosecution examined six witnesses out of which PW-1/victim Gagan Dhingra and PW-@ Varun Jain are the most important witnesses being the eye witnesses of the incident and the remaining witnesses are the brother of victim and police officials who attended the victim in the hospital and carried out the investigation after the incident respectively. Henceforth, court shall now proceed further to evaluate the evidence available on record to find out if the prosecution has succeeded in its task or not.
State V/s Danish @ Parvej & Ors. Page 15 of 29FIR No. 168/18 P.S. Uttam Nagar U/s. 307/397/34 IPC & 27/54/59 Arms Act
19. PW-1 Gagan Dhingra was the victim/injured and eye-witness of the alleged incident and was examined as PW-1. Prosecution was relying on his version but he did not support the case of prosecution and turned hostile qua the allegations made by him in his statement recorded under section 161 Cr.P.C.
PW-1 deposed in his examination in chief that he was working with one Sanjay who was doing work of finance. He used to do collection on his behalf. He does not know accused Danish @ Parvej, but his father met him before entering in the court and he offered him to compromise the matter. He further deposed that on 26.02.2018, he was sitting at the house of his friend Varun Jain along with some of his friends namely Ashu and the name of other, he does not remember. At about 7.30-08.00pm, accused Danish @ Pravej (correctly identified) along with Jafar (identity not disputed) came there along with his 4-5 associates. Then, accused Danish @ Parvej had slapped him and accused Jafar @ Hasim took out a pistol and fired at him twice which hit him on his stomach and leg. He does not know why they had fired upon him. Accused Jafar @ had exhorted his associates to kill him and upon which his associates had also given beatings to him with fist and leg blows and with bricks. Then, he became unconscious. Thereafter, his friends took him to the nearby private Maggo hospital but he was referred to AIIMS hospital. He regained his consciousness in AIIMS hospital and police official recorded his statement. At the time of incident, he was carrying Rs. 60,000/- in cash which were forcibly taken by associates of accused persons. He was not in his proper senses and he was State V/s Danish @ Parvej & Ors. Page 16 of 29 FIR No. 168/18 P.S. Uttam Nagar U/s. 307/397/34 IPC & 27/54/59 Arms Act loosing his consciousness intermittently. He was discharged from the hospital after about 6-7 days. One day, he had come to court during the hearing of bail application of accused Danish @ Parvej as he had threat to his life.
Court permitted the Ld. Substitute Additional Public Prosecutor for State to cross-examine the witness as he was resiling from his previous statement.
During his cross-examination conducted by Ld. Sub. Additional PP for State he denied that a quarrel had taken place with accused Danish @ Parvej before 2-3 days of the incident. He voluntarily deposed that the quarrel had taken place with friends of accused Danish before the day of incident. He admitted that address of Varun Jain is E-12, Om Vihar, Phase-V, Uttam Nagar. The time of incident might be 9.45 pm. He further volunteered that in the incident he suffered injury of his head and his memory has gone weak due to which he could not tell the correct time. He further deposed that he cannot identify two persons namely Pankaj and Pritam by their face or whether they were with accused persons at the time of incident. He only knew that one Pankaj and one Pritam were associates of accused persons. He was not able to recollect whether on 03.04.2018, he had come to the court of Ms. Purva Sareen, Ld. ACMM where he identified both accused Danish and Jafar or IO recorded his statement or not as his memory has gone weak after the incident. He cannot identify the said pistol as the accused persons came there all of a sudden and started beating him but he can identify his clothes, if shown to State V/s Danish @ Parvej & Ors. Page 17 of 29 FIR No. 168/18 P.S. Uttam Nagar U/s. 307/397/34 IPC & 27/54/59 Arms Act him, worn on the day of incident. He correctly identified his clothes as Ex.P-
1. During his cross-examination by Ld. Defence counsel, witness admitted that he cannot identify the assailants, who fired at and had beaten him on 26.02.2018, that he does not know the accused persons and that on the last date, he had wrongly identified accused Danish @ Parvej because he was present in the court along with all the accused persons. He testified that he identified accused Danish @ Parvej by guess as tutored by IO outside the court on the last date ie 27.02.2019. He deposed that he does not remember the facts of the case, due to his weak memory.
Court permitted the Ld. Addl. PP for State to re-examine the witness as he has given contradictory statement in his chief examination and cross- examination.
During his re-examination conducted by Ld. Addl. PP for State he stated that he always speaks truth. He admitted that on earlier date he had deposed in his chief-examination according to his memory. He admitted that he was asked by the IO what he had told in his statement to the IO. IO had also recorded the statement of his friends. He denied that he had compromised the matter with the accused persons as father of the accused Danish @ Parvej approached him and that he was deposing falsely in his cross-examination done on behalf of accused persons.
20. Perusal of the testimony of PW-1 reveals that he stated in his examination in chief that he does not know accused Danish @ Parvej. In the State V/s Danish @ Parvej & Ors. Page 18 of 29 FIR No. 168/18 P.S. Uttam Nagar U/s. 307/397/34 IPC & 27/54/59 Arms Act further examination in chief, he identified both the accused persons as assailants and further corroborated the prosecution version of happening of the alleged incident in the alleged manner as stated by him in his statement under section 161 Cr.P.C. However, PW-1 resiled from his previous statement during his further examination in chief and hence, Ld. Addl. PP for the State was permitted to cross examine him. PW-1 firmly denied the suggestions put to him on behalf of the State regarding the happening of quarrel with accused Danish @ Parvej before 2-3 days of incident. He brought a new version that the quarrel had taken place with friends of accused Danish @ Parvej before the day of incident. He further failed to recollect whether on 03.04.2018, he had gone to the court of Ms. Purva Sarren and identified both the accused persons and that the IO has recorded his statement in that regard. He even failed to identify the pistol and stated that as the accused persons came there all of a sudden and started beating him and so he cannot identify the same. He testified that his memory has gone weak after the incident due to which he could not tell the correct time and recollect about the aforesaid facts. This testimony of PW-1 shows that PW-1 cannot be relied with respect to the facts of this case as a serious doubt exists upon his capacity to recollect. It is also clear that prosecution failed to extract any material in its favour despite cross- examination of PW-1 who denied the suggestions put to him on behalf of State. Furthermore, the cross-examination of PW-1 conducted by Ld. Counsel for the accused shows that PW-1 has completely shattered the prosecution case by firmly admitting that he cannot identify the assailants who had fired him and beaten him on 26.02.2018 and that he does not know the accused State V/s Danish @ Parvej & Ors. Page 19 of 29 FIR No. 168/18 P.S. Uttam Nagar U/s. 307/397/34 IPC & 27/54/59 Arms Act persons. PW-1 further resiled from his examination in chief qua identifying the accused persons by affirming that on the last date he had wrongly identified accused Danish @ Parvej because the said accused was present in the court along with all accused persons and that the said accused was identified by guess as tutored by the IO outside the court only. It is further established that the testimony of PW-1 is not credit worthy as he affirmed in the cross examination that he does not remember the facts of the case due to his weak memory. Ld. Addl. PP for the State was permitted to cross examine PW-1 as he was giving contradictory statement wherein prosecution failed to extract any material in its favour as PW-1 firmly denied that he had compromised the matter with the accused persons as father of accused Danish approached him and that he was deposing falsely in his cross-examination done on behalf of accused persons. These depositions of PW-1 have the effect of demolishing the very foundation of the case which tantamount to exonerating both the accused from the allegations levelled against them.
It emerges from aforesaid testimony that factum of commission offence punishable u/s 307/394/397/34 and 27 Arms Act by the accused persons is not established at all.
21. PW-2 Sh. Varun Jain deposed that on 26.02.2018 at about 09.45 pm, he was present at his house. At that time, he heard noise from the street upon which he came outside and saw that there was quarrel between some persons. They had fired upon one person who suffered gunshot injuries and he fell down there. The persons who fired upon him ran away from there. He does State V/s Danish @ Parvej & Ors. Page 20 of 29 FIR No. 168/18 P.S. Uttam Nagar U/s. 307/397/34 IPC & 27/54/59 Arms Act not know who they were. When he went to the injured, he found that he was one Gagan Dhingra who was working with one Sanjay with whom he used to participate in Committee. Blood was oozing out from the injuries of Gagan. He requested him to take him to the hospital. Then, he called at number 100 and took him to Mata Roop Rani Magoo Hospital and then to BL Kapoor hospital. Condition of Gagan was deteriorating so he took him to AIIMS hospital. At that time, many boys were with him for taking Gagan to the hospitals. Police met them in Gandhi Hospital.
He further deposed that those persons had hit Gagan with bricks also on his head. Police came to the spot late at night and they had lifted fired cartridge, blood stains and bricks from there. He does not know whether Gagan was robbed of his Rs. 60,000/-. He does not know any person with the name Danish @ Parvej and Jaffar @ Hasim. He does not know whether his statement was recorded by the police or not.
Court permitted the Ld. Additional PP for State to cross-examine the witness as he was resiling from his earlier statement.
During his cross-examination by Ld. Addl. Public Prosecutor for State that he denied that he had made a police statement that accused Jaffar and Danish came along with their associates in the street of his house where they exhorted their associates to finish Gagan upon which their associates started bearing Gagan with bricks and accused Danish fired upon Gagan with desi katta carried by him and the gunshot hit Gagan in his stomach and one on his leg. He denied that he had made a police statement that accused persons and their associates gave beatings to Gagan with bricks with intention to kill him.
State V/s Danish @ Parvej & Ors. Page 21 of 29FIR No. 168/18 P.S. Uttam Nagar U/s. 307/397/34 IPC & 27/54/59 Arms Act He further denied that he had made a police statement that those persons had robbed Rs. 60,000/- from Gagan. He further denied that on 06.03.2018, he had visited PS where he had seen and identified accused Jaffar @ Hasim and Danish @ Parvej in front of IO and IO recorded his statement. He does not know whether compromised has been reached between Gagan Dhingra and accused persons. Attention of the witness was drawn towards accused persons namely Danish @ Parvej and Jaffar @ Hasim, witness submits that he cannot identify the accused persons. He denied the suggestion that he had been won over by the accused persons that is why he was deliberately not identifying them or not supporting the prosecution case.
During his cross-examination by Ld. Defence counsel he admitted that mobile number 7982213994 belongs to him and he was still using the same mobile number and the same mobile number was mentioned in Rukka Ex. PW-2/DX1.
22. Perusal of the testimony of PW-2 reveals that he has turned hostile regarding the factum involvement of the accused persons in the incident reported by him to the police. He was cross-examined by the Ld. Addl. P.P for the State but he firmly denied all the leading questions put by the prosecution.
23. It is evident from the aforesaid testimony that the prosecution failed to extract any material in its favour despite detailed cross-examination as the witness firmly denied all the material suggestions. It is further seen that PW-2 completely shattered the prosecution version by denying in the cross State V/s Danish @ Parvej & Ors. Page 22 of 29 FIR No. 168/18 P.S. Uttam Nagar U/s. 307/397/34 IPC & 27/54/59 Arms Act examination conducted by Ld. Additional Public Prosecutor that he had made a police statement that accused Jaffar @ Hasim and Danish @ Parvej came along with their associates in the street of his house where they exhorted their associates to finish Gagan upon which their associates started beating Gagan with bricks and accused Danish fired upon Gagan with desi katta carried by him and the gunshot hit Gagan in his stomach and one on his leg. He denied that he had made a police statement that accused persons and their associates gave beatings to Gagan with bricks with intention to kill him. He further denied that he had made a police statement that those persons had robbed Rs. 60,000/- from Gagan. He further denied that on 06.03.2018, he had visited PS where he had seen and identified accused Jaffar @ Hasim and Danish @ Parvej in front of IO and IO recorded his statement. He even failed to identify the accused persons as assailants despite his attention being drawn to the accused persons Danish @ Parvej and Jaffar @ Hasim.
24. The afore discussed firm denials of PW-2 show that PW-2 did not support the prosecution version as put to him by way of suggestions. It follows that the witness thus reaffirmed that the accused were not the assailants. It implies that the prosecution has failed to prove its case through this witness.
25. These testimonies of PW-2 further shattered the prosecution version as both the eye witnesses have turned hostile with respect to presence of accused persons at the spot as well as commission of robbery and causing of grievous State V/s Danish @ Parvej & Ors. Page 23 of 29 FIR No. 168/18 P.S. Uttam Nagar U/s. 307/397/34 IPC & 27/54/59 Arms Act hurt to the victim by beating him with bricks, legs and fist blows and shooting at him as alleged by the prosecution.
26. Perusal of the record shows that PW-1 and PW-2 are the only eye witnesses of the incident. Mere reading of testimony of PW-4 Jai/brother of victim, shows that PW-4 simply attended the victim at hospital and handed over his clothes to the police. PW-4 has even turned hostile qua the fact that PW-2 told him about alleged attack made by the accused persons upon his brother by PW-2. It is further clear that PW-4 as well as PW-3, PW-5 and PW- 6 (police officials) are not eye witnesses of the incident. PW-3, PW-5 and PW-6 have merely conducted the investigation based on the version stated by the complainant. The police witnesses have duly proved the various steps taken in the investigation as well as the various memos ie arrest memo, personal search memo, recovery memo, seizure memo etc. It is evident from the discussion made in the previous paragraphs that PW-1 and PW-2, the eye witnesses, have turned hostile regarding the identity of the accused persons as assailants. PW-2 has even not supported the prosecution version of recording of his statements by the police qua the manner of commission of the alleged offence which indicates that chances of false implication by manipulating and fabricating documents cannot be ruled out. So, the testimonies of the police witnesses, in view of the hostility of the PW-1 and PW-2 qua identity of the accused persons as offenders, is of no consequence to incriminate the accused persons for the alleged offences.
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27. It is pertinent to mention that even the duly admitted Ballistic Report Ex. PX7 does not come to the rescue of the prosecution version. Perusal of the report reveals that the expert has observed that exhibits were found insufficient for opinion as to whether the cartridge cases have been fired from the country made pistol allegedly recovered from accused Danish or not. It shows that there is no material to connect the cartridges recovered from the spot by the police officials, with the country made pistol seized from the possession of the accused Danish from which the alleged firing was done in this case. No explanation has been given during the entire trial by the police officials for the lapse in not supplying the sufficient exhibits for examination. This unexplained lapse creates grave doubt upon the correctness and fairness of the investigation. The police officials did not even make any sincere efforts to collect the dump data/CCTV footages of the spot as well as nearby areas so as to establish the presence of the accused persons on the relevant date at or near the spot. This again is material omission on the part of the investigating agency which renders the investigation doubtful and substantiates the defence version of false implication of the accused persons.
28. With respect to the arguments advanced by Ld. Substitute Addl. Public Prosecutor for State that the refusal of the accused persons to join the TIP is sufficient incriminating circumstance against them, it is pertinent to mention that the TIP is not substantive piece of evidence. The same can merely used to corroborate the version stated during the trial before the court.
State V/s Danish @ Parvej & Ors. Page 25 of 29FIR No. 168/18 P.S. Uttam Nagar U/s. 307/397/34 IPC & 27/54/59 Arms Act In the present case, PW-1 and PW-2 have not identified the accused persons as the offender during trial. This is a case of refusal on the part of the accused persons to join the TIP which has the effect of giving rise to an adverse inference against the accused persons qua their culpability. However, in view of the hostility of the eye witnesses qua the identity of the accused persons as offenders during trial, adverse inference of culpability of the accused Danish @ Parvej arising on the basis of refusal to join TIP, stands washed off. So, this argument of Ld. Sub. Addl. PP for State does not hold any water.
29. It is already evident from the aforementioned discussion that identity of the accused persons as offenders has not been established. So, question of sharing of common intention by the accused persons to rob the victim and beat him with the intention to kill in the alleged manner does not arise and the same needs no discussion. Moreover, the prosecution did not bring any material suggesting the sharing of common intention by the accused persons for commission of the alleged offences. Neither any telephonic record or nor any other electronic evidence or other direct evidence has been brought on record suggesting even their presence at the spot so as to assume that there was ever an occasion for the accused persons to share common intention for committing the alleged offences at the spot. It is also seen that no incriminating material was recovered or discovered at the instance of accused persons. This fact further shows that there is no material available on record to connect the accused persons with the commission of alleged offences.
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30. Regarding the burden of proving the prosecution version it is pertinent to mention the case law reported as " Sadhu Singh Vs. State of Punjab :
1997 (3) Crime 55, wherein the Punjab & Haryana High Court had observed that-
" In a criminal trial it is for the prosecution to establish its case beyond reasonable doubts. It is for the prosecution to travel the entire distance from 'may have' to 'must have'. If the prosecution appears to be improbable or lacks credibility the benefit of doubt necessarily has to go to the accused".
31. Following the aforesaid observations and considering the inconsistencies and incoherent testimonies, this Court is of the view that prosecution has not been able to travel the entire distance from 'may have' to 'must have' and thus it can not be said that prosecution has been able to prove its case beyond reasonable doubts.
32. It thus emerges, from the aforesaid discussion and perusal of testimonies of PWs as well as record that prosecution has failed to prove beyond reasonable doubt, that accused persons namely Jafar @ Hasim and Danish @ Parvej with other associates (not arrested) in furtherance of their common intention, attacked the victim Gagan Dhingra with bricks, leg and fist blows, that accused Danish @ Parvej also fired twice upon person of complainant Gagan Dhingra by using deadly weapon(Desi Katta), that the accused persons caused grievous injury to victim/complainant and that they also committed robbery of Rs. 60,000/- belonging to the complainant Gagan State V/s Danish @ Parvej & Ors. Page 27 of 29 FIR No. 168/18 P.S. Uttam Nagar U/s. 307/397/34 IPC & 27/54/59 Arms Act Dhingra, which are necessary elements for completion of offence punishable under section 307/394/397/34 IPC and under section 27 Arms Act.
33. Considering the afore-discussed testimonies, this Court is of the view that arguments advanced by the Ld. Substitute Additional Public Prosecutor for the State that the prosecution has proved all the ingredients necessary for completion of the alleged offences do not have any force whereas the arguments made on behalf of defence that the accused persons have been falsely implicated are found to be justified.
34. In view of the aforesaid discussion, this Court is of the view that the prosecution has not been able to prove its case against the accused persons beyond reasonable doubts. Accordingly, accused persons Jafar @ Hasim and Danish @ Parvej are hereby acquitted of charge punishable u/s 307/394/34 IPC and 307/394 read with section 397/34 IPC and 27 Arms Act respectively. Bail bonds stands cancelled and Sureties be discharged, if any. Documents, if any, be returned to the rightful person against receiving and after cancellation of endorsement, if any.
35. Bail bonds and surety bonds already furnished in compliance of Section 437 (A) Cr.P.C are considered and accepted for a period of six months from today.
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36. File be consigned to the Record Room after due compliance.
Announced in open Court
today on 31.10.2022 (VIPLAV DABASS)
ADDITIONAL SESSIONS JUDGE:
FAST TRACK COURT
DWARKA COURTS, SOUTH-WEST
NEW DELHI
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