Delhi District Court
State vs . Ajay & Anr. Page No. 1 Of 16 on 5 July, 2019
-1-
IN THE COURT OF SH. SANJEEV AGGARWAL
ADDL. SESSIONS JUDGE02, NORTH
ROHINI COURTS, DELHI
STATE CASE No..........................558/18
FIR No. 895/17
PS Shahbad Dairy
U/s: 307/34 IPC & 27 Arms Act
State
Versus
1. Ajay
S/o. Sh. Hoshiyaar Singh
R/o. H. No. 76, Iradat Nagar
Village Naya Bans, Delhi
2. Ravi
S/o. Sh. Raj Singh.
R/o. H. No. 45A Iradat Nagar
Village Naya Bans, Delhi
Date of institution : 29.08.2018
Judgment reserved on : 06.06.2019
Judgment delivered on: 05.07.2019
ORDER/JUDGMENT: Both the accused persons stand
acquitted of the offence(s) u/S
307/34 IPC & 27 Arms Act.
JUDGMENT
1. In brief, the prosecution story as emerging from the chargesheet SC No. 558/18; FIR No.895/17; PS Shahbad Dairy State Vs. Ajay & Anr. Page No. 1 of 16 -2- are that on 09.12.2017, on receipt of DD No. 40PP, HC Sunil along with Ct. Joginder reached the spot, where he met the complainant Naveen and recorded his statement, which reads as under: "That on 09.12.2017, at around 10:45 pm, he went to the house of his friend Praveen and he along with Praveen and Rakesh were sitting outside his house near the stairs. At around 11:00 PM, two boys of his village namely Ravi and Ajay, whom he knew very well came running towards them having weapons in their hands. On seeing them, he and Rakesh ran ahead of the road, whereas Praveen went inside his house.
Thereafter Ravi fired shots from his weapon from above the gate due to which sound of firing came and they after giving abuses to them went towards village. Both the boys had fired upon all of a sudden, due to which harm might have been caused to someone.
2. On checking, one hole was found in the washing machine lying in the veranda of the house and nearby that one bullet was also found. Crime team was called at the spot, who had inspected the same. The bullet and the washing machine were taken into possession. On the basis of said statement, an FIR u/s 336 IPC & 25/27/54/59 Arms Act was registered at PS Shahbad Dairy and investigations were SC No. 558/18; FIR No.895/17; PS Shahbad Dairy State Vs. Ajay & Anr. Page No. 2 of 16 -3- taken up by ASI Om Prakash.
During the course of investigations, site plan was prepared, statements of witnesses were recorded and offence u/s 307 IPC was incorporated. On 12.12.2017 the complainant produced DVR set of the CCTV cameras installed at his house, which were also taken into possession. Both the accused persons were searched, but of no avail, therefore, NBWs and proceedings u/S. 82 CrPC were initiated against them.
During investigations, on 16.05.2018, accused Ajay was arrested and a country made pistol used in the commission of offence was recovered. Thereafter, on 17.05.2018 at the instance of accused Ajay, accused Ravi was also arrested in this case. On 21.05.2018, PC remand of accused Ravi was obtained and during PC remand, accused got recovered one empty shell which was seized.
The exhibits were sent to FSL and upon completion of investigations, charge(s) for offence(s) punishable u/s 307/336/34 IPC and 25/27/54/59 Arms Act was filed.
3. On committal of the case to the Court of Sessions, vide detailed order dated 26.10.2018, charge(s) for offence(s) punishable u/s 307/34 IPC and 25/27/54/59 Arms Act was framed against both the accused persons, to which they pleaded not guilty and claimed trial.
SC No. 558/18; FIR No.895/17; PS Shahbad Dairy State Vs. Ajay & Anr. Page No. 3 of 16 -4-
4. Thereafter, prosecution in support of its case has examined 9 witnesses :
a) PW1 is ASI Mahesh Orao, duty officer, who deposed to have recorded the FIR Ex. PW1/A, made endorsement Ex. PW1/B over rukka and also issued certificate u/s 65B of Indian Evidence Act Ex. PW1/C.
b) PW2 is Ct. Devanand, DD writer, who has proved the copy of DD entry no. 40PP as Ex. PW2/A.
c) PW3 is Naveen, complainant in this case, who has though deposed about the manner of occurrence, however, he has turned hostile on the point of identification of the accused persons and despite being declared hostile by the Addl. PP and being cross examined, he has not supported the prosecution case.
d) PW4 is Rakesh, friend of the complainant, who has deposed about the manner of occurrence, however, he also has turned hostile on the point of identification of the accused persons and despite being declared hostile by the Addl. PP and being cross examined, he has not supported the prosecution case.
e) PW5 is Praveen, another friend of the complainant, who has deposed about the manner of occurrence, however, he also has turned hostile on the point of identification of the accused persons and despite being declared hostile by the Addl. PP and being crossexamined, he has not supported the prosecution case SC No. 558/18; FIR No.895/17; PS Shahbad Dairy State Vs. Ajay & Anr. Page No. 4 of 16 -5-
f) PW6 is SI Satya Dev, Incharge Mobile Crime Team, who on the intervening night of 09/10.12.2017 had reached the spot on receipt of call from control room and after inspecting the same, prepared his report Ex. PW6/A.
g) PW7 is Sh. Rohan Sharma, Senior Scientific Assistant (Documents) FSL, who deposed to have examined the exhibits and prepared FSL report Ex. PW7/A. He has also proved the certificate u/S. 65B of Indian Evidence Act as Ex. PW7/B and pen drive marked PD1 as Ex. PW7/C.
h) PW8 is Ct. Jogender, who had joined the investigations along with IO HC Sunil on 09.12.2017 and proved the seizure of container as well as washing machine vide Ex. PW8/A and arrest of accused Ajay vide memo Ex. PW8/B.
i) PW9 is ASI Om Prakash, to whom further investigations were handed over after registration of the FIR, who had deposed regarding the investigations carried out by him.
5. Vide order dated 13.05.2019, the prosecution evidence was closed.
6. Thereafter, statement(s) of both the accused persons u/s 313 Cr.P.C. were recorded separately in which the entire incriminating evidence appearing against the accused persons was put to them, in SC No. 558/18; FIR No.895/17; PS Shahbad Dairy State Vs. Ajay & Anr. Page No. 5 of 16 -6- which the defence of the accused was that they were innocent and have been falsely implicated in the present case. However, they chose not to lead evidence in their defence.
7. I have heard Sh. Harvinder Nar, Ld. Addl. PP for the State and Sh. S. P. Dhankar, Ld. Counsel for both the accused persons.
8. Ld. Defence Counsel has argued that in the present case, all the material prosecution witnesses including the complainant Naveen PW3, eye witness Rakesh PW4 and another eye witness PW5 Praveen have turned hostile with regard to the identity of the accused persons, who had allegedly fired upon them on 09.01.2017 despite long crossexamination by Ld. Addl. PP for the State. He has further argued that with regard to the alleged CCTV footage relied upon by the prosecution the said fact has not been stated by PW5 Praveen that he had handed over the DVR of the CCTV camera to the IO PW9 and this fact has nowhere come in his examination in chief. He further submits that even otherwise, no certificate u/S. 65B of the Evidence Act has been furnished by the said PW5 to the IO with regard to the authenticity of the said CCTV footage.
He further submits that the forensic expert PW7 Sh. Rohan Sharma, Sr. Scientific Officer, Rohini, in his crossexamination has admitted that he cannot rule out the possibility of tempering / editing SC No. 558/18; FIR No.895/17; PS Shahbad Dairy State Vs. Ajay & Anr. Page No. 6 of 16 -7- in the footage contained in the said DVR.
Therefore, he submits that the expert witness has also admitted that he cannot vouch for the authenticity of the CCTV footage nor he can rule out the possibility of tempering, editing of the footage. Therefore, he submits that both the accused persons are liable to be acquitted.
9. On the other hand, Ld. Addl. PP has argued that no doubt that all three material prosecution witnesses have turned hostile, however, with regard to the CCTV footage aspect, the prosecution story is duly supported by the testimony of PW7 Rohan Sharma, FSL expert as well as by the testimony of IO PW9 ASI Om Prakash. He further submits that both the accused persons can be clearly seen in the CCTV footage and identified that they were the persons who had fired upon the complainant and other prosecution witnesses on 09.12.2017.
He further submits that the said scientific piece of evidence clearly nails the culpability of the accused persons and both of them are liable to be convicted u/S. 307/34 IPC as well as u/S. 27 of the Arms Act.
10. I have gone through the rival contentions.
SC No. 558/18; FIR No.895/17; PS Shahbad Dairy State Vs. Ajay & Anr. Page No. 7 of 16 -8-
11. In the present case complainant PW3 Naveen in his testimonial deposition in the Court has deposed as under :
"I have been residing at the aforesaid address alongwith my family. On 09.12.2017, on or about 10:45 pm, I came to the house of my friend Praveen S/o Suresh at Naya Bans. Thereafter, I alongwith my friends Praveen and Rakesh were sitting outside the house of Praveen and were talking with each other. On or about 11:00 pm, while we were present outside the house of my friend Praveen, suddenly few boys came there and they started firing in the air. Due to the fear of said firing, we entered inside the house of Praveen and bolted the door of house of Praveen. Thereafter, one more gunshot was fired by the said offenders. We remained inside the house of Praveen for about half an hour or so and thereafter, the residents of the village gathered outside the house of Praveen. By that time, the said assailants ran away and then we opened the door of house of Praveen. Somebody had made a call at number 100 and police reached there. Police made inquiries from me and I had narrated the similar facts to the police, which I have deposed above.
Accused persons present in the court today are not the same persons who had made firing on that day. In fact, I was not able to see the faces of the assailants. Except this I do not know anything else in this case and except this I do not want to say anything else in this case.
At this stage, Ld. Addl. PP for State seeks permission to crossexamine the witness as the witness is resiling from his earlier statement made to the police.
SC No. 558/18; FIR No.895/17; PS Shahbad Dairy State Vs. Ajay & Anr. Page No. 8 of 16 -9- Heard and allowed.
XXXX by Ld. Addl. PP for the State At this stage, the statement on the basis of which FIR in the present case has been registered is put to the witness and witness identifies his signatures at point A. The said statement is now exhibited as Ex. PW3/A. It is wrong to suggest that on that day accused Ravi S/o Raj Singh and Ajay, who are present in the court today came at in front of house of Praveen or that both the accused persons were armed with weapons or that both the accused persons while running came towards us or that due to fear, me and Rakesh ran towards the road or my friend Praveen went inside his house or that I had seen that accused Ravi had pointed out the weapon carried by him towards the gate of house of Praveen or fired from the said weapon towards the gate of house of Praveen or that thereafter both the accused persons after using abusive language went towards the village or that I had specifically stated in my statement Ex. PW3/A that due to the said firing, anybody could be injured or killed. Confronted with the statement Ex. PW3/A from portion A to A1 where the aforesaid facts including the names of both the accused persons including the roles played by both the accused perosns in the commission of offence have been specifically mentioned.
It is wrong to suggest that I am intentionally not supporting statement Ex. PW3/A being won over by both the accused persons or having entered out of court settlement with them. It is wrong to suggest that police had recorded statement Ex. PW3/A on my dictation or that in the said statement, I had specifically named both the accused persons. Vol.
SC No. 558/18; FIR No.895/17; PS Shahbad Dairy State Vs. Ajay & Anr. Page No. 9 of 16 -10- Police had obtained my signatures on blank documents. It is wrong to suggest that I am deposing falsely to the effect that police had obtained my signatures on blank documents or that I am intentionally not deposing against the accused persons being won over by them."
12. The other material witnesses PW4 Rakesh and PW5 Praveen have also deposed similarly and have also turned hostile with regard to the identity of the accused person despite long crossexamination by Ld. Addl. PP for the State. Therefore, there is no direct evidence in this case against the accused persons, which has been proved by the prosecution.
13. Now the prosecution is only relying upon scientific piece of evidence in the shape of CCTV footage with regard to the said incident of firing dated 09.12.2017 which is stated to be contained in the DVR handed over to the IO PW9 by PW5 Praveen.
However, the said Praveen in his testimonial deposition recorded on 02.03.2019 did not stated anywhere that he had handed over the DVR containing the CCTV footage to the IO PW9 from the CCTV camera installed in front of his house. Further, no certificate u/S. 65B of the Evidence Act has been furnished by the said Praveen to the IO along with the seizure memo of the DVR Ex. PW9/B, which is a mandatory requirement of law to prove the authenticity of the SC No. 558/18; FIR No.895/17; PS Shahbad Dairy State Vs. Ajay & Anr. Page No. 10 of 16 -11- recording contained in the said DVR.
Though, the said CCTV footage was sent to FSL for scientific evaluation and same was evaluated by PW7 Sh. Rohan Sharma, Sr. Scientific Assistant Document FSL Rohini, who has deposed in his examination in chief as under :
"Vide letter no. 2821/SHO/Shahbad Dairy dated
14.08.2018, our lab received one sealed parcel in connection with case FIR no. 895/17. The said parcel was marked to me. I had checked the said parcel and the seals over the said parcel found intact and tallied with the specimen seal impression. I had opened the said parcel and the material contained in it was marked as DVR1 & HDD1. The exhibit hard drive marked HDD1 was cloned on a sterile storage media by using forensic tableau duplicator and the cloned storage media was analysed by video investigation portable. The CCTV Footage dated 09.12.2017 from 10:30 pm to 11:45 pm which were retrieved from exhibit Mark HDD1 was copied in pendrive marked PD1 with folder name DVR recordings. After examination I had prepared FSL report dated 19.03.2019 which is now exhibited as EX PW 7/A which bears my signature and official stamp at point A. I had also issued certificate under section 65B of Indian Evidence Act which is now exhibited as Ex PW 7/B bears my signature at point A. I had certified that at the time of date retrieval, the computer system was under my control and was working properly during process and there is no distortion in accuracy of the data.
SC No. 558/18; FIR No.895/17; PS Shahbad Dairy State Vs. Ajay & Anr. Page No. 11 of 16 -12- Today, I have brought laptop make HP. At this stage the pendriver marked as PD1 and is now exhibited as PW 7/C is inserted in the laptop brought by the witness. The CCTV recording from 10:30 pm to 11:45 pm dated 09.12.2017 is played on the laptop. As per the CCTV footage camera no. 3 shows that at about 10:56:50 pm the complainant upon seeing the assailants ran inside his house after closing the main door and both accused persons came running towards the house of the complainant and accused Ravi after coming near to the main gate of the house of the complainant fired from a firearm weapon from the top of the gate inside the house of the complainant. Accused Ajay is seen following accused Ravi armed with a weapon and after Ravi fired towards the gate of the complainant accused Ajay brandished the weapon carried by him in air and thereafter they both ran away. As per the CCTV footage camera no. 4 shows that at about 10:56:50 pm the complainant upon seeing the assailants ran inside his house after closing the main door both accused persons came running towards the house of the complainant and accused Ravi after coming near to the main gate of the house of the complainant fired from a firearm weapon from the top of the gate inside the house of the complainant. Accused Ajay is seen following accused Ravi armed with a weapon and after Ravi fired towards the gate of the complainant accused Ajay brandished the weapon carried by him in air and thereafter they both ran away.
After examination the DVR had been sealed with the seal of DOCFSL. I can also identify the DVR examined by me if shown to me.
SC No. 558/18; FIR No.895/17; PS Shahbad Dairy State Vs. Ajay & Anr. Page No. 12 of 16 -13- At this stage, MHC(M) has produced the case property i.e. one sealed pullanda sealed with the seal of DOCFSL is opened. The same is found containing one DVR on which Aricom Digital recorded model no. HYAHD1204FHT bearing serial no. 354201511204168 has been mentioned. The said DVR is shown to the witness and the witness exhibited the said DVR as Ex PX examined by him and containing the original recording."
He was also subjected to crossexamination by the Ld. Defence Counsel and in his crossexamination, he deposed as under :
"I am not knowing as to who is the complainant in the present case. I am also not knowing the accused persons in the present case. Neither the photograph of the complainant nor any of the accused persons were supplied to me by the investigation agency when the DVR was examined by me and the relevant footage was retrieved and transferred in a pen drive. No name of ownership of a DVR was supplied to me. No bill of said DVR was supplied to me. I had retrieved the footage contained in the DVR. I had not checked, if there was any tampering / editing in the said DVR.
I cannot rule out the possibility of tampering / editing in the footage contained in the said DVR. Vol. The same is the subject matter of Physics Division. I cannot rule out the possibility of tampering / editing. I admit that there is a possibility of tampering in the said DVR footage."
14. Since the expert witness has also deposed in the cross SC No. 558/18; FIR No.895/17; PS Shahbad Dairy State Vs. Ajay & Anr. Page No. 13 of 16 -14- examination that neither the photographs of the complainant nor of the accused persons were supplied to him for comparison, though he had retrieved the footage from the DVR, but he had not checked if there was any tempering / editing in the said DVR and he cannot rule out possibility of tempering / editing in the said DVR.
Therefore, since there was nothing available with the expert for comparison i.e. to say that he had neither seen the accused persons or their photographs or that of the complainant's for comparison with the CCTV footage, nor he could categorically rule out the possibility of tempering / editing in the said DVR and the IO PW9 in his cross examination has also admitted that he had not obtained any documentary proof of the ownership of the said DVR from PW5 Praveen.
15. As already discussed above, the said Praveen PW5 had not given any certificate u/S. 65 of the Evidence Act to the IO along with the said DVR to prove the authenticity of the said footage contained in the said DVR.
16. There is equal probability that the said CCTV footage may be recording the correct record of the incident dated 09.12.2017, as projected by the prosecution with regard to the culpability of the accused persons. However, at the same time, in the absence of SC No. 558/18; FIR No.895/17; PS Shahbad Dairy State Vs. Ajay & Anr. Page No. 14 of 16 -15- reliable and conclusive scientific evidence, as discussed above, there is equal probability of editing / tempering in the said DVR / CCTV footage. Moreover, when none of the material prosecution witnesses including the complainant have corroborated the version of the prosecution with regard to the incident dated 09.12.2017.
17. Therefore, there is 50% probability of each of the event being correct. But to convict the accused persons, the probability which is required, has to be beyond reasonable doubt and cannot be in the domain of 50% each. It has to be in the range of 75 - 85% on the scale, where the probability of happening of any event is measured or assessed, which the prosecution has failed to achieve in this case.
18. Therefore, since the prosecution has failed to prove its case against both the accused persons beyond reasonable doubt, therefore, both the accused persons Ajay and Ravi stands acquitted of the charge(s) u/S. 307/34 IPC & 27 Arms Act by giving them the benefit of doubt.
Their previous bail bonds are cancelled. Previous surety stands discharged. Original document(s), if any be returned after cancelling the endorsement(s), if any on the same, if the same are not resubmitted while furnishing bail bonds u/S. 437A CrPC.
SC No. 558/18; FIR No.895/17; PS Shahbad Dairy State Vs. Ajay & Anr. Page No. 15 of 16 -16-
19. Both the accused persons have already furnished their bail bonds in compliance of Section 437A Cr.P.C, which will remain valid for a period of six months from today, as per the provisions of Section 437A CrPC.
File on completion be consigned to record room.
Digitally signed by SANJEEV SANJEEV
AGGARWAL
AGGARWAL Date: 2019.07.06
15:45:58 +0530
Announced in the open Court (Sanjeev Aggarwal)
th
on 05 day of July, 2019. Addl. Sessions Judge02,North Rohini Courts, Delhi 05.07.2019 SC No. 558/18; FIR No.895/17; PS Shahbad Dairy State Vs. Ajay & Anr. Page No. 16 of 16