Delhi District Court
State vs . Mahesh & Ors. Page No. 1 Of 11 on 1 November, 2019
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IN THE COURT OF SH. SANJEEV AGGARWAL
ADDL. SESSIONS JUDGE02, NORTH
ROHINI COURTS, DELHI
SESSIONS CASE No................... 30/18
FIR No. 401/17
PS Jahangir Puri
U/s: 307/34 IPC & 25/27 Arms Act
State
Versus
1. Mahesh
S/o. Talevar
R/o. IBlock, H. No. 1646, Jahangir Puri, Delhi.
2. Azad @ Mehtab
S/o. Sh. Banne Khan
R/o. IBlock, H. No. 1172, Jahangir Puri, Delhi.
3. Hemant @ Kale
S/o. Late Om Prakash
R/o. H. No. I1710, Jahangir Puri, Delhi.
Date of institution : 15.01.2018
Judgment reserved on: 01.11.2019
Judgment delivered on: 01.11.2019
ORDER/JUDGMENT: All the accused Mahesh,
Azad @ Mehtab and Hemant @
Kale stand acquitted for the
offence(s) u/S. 307/34 IPC,
whereas accused Mahesh also
stands acquitted for the offence(s)
u/S. 27/54/59 Arms Act.
SC No. 30/18; FIR No.401/17; PS Jahangir Puri
State Vs. Mahesh & Ors. Page No. 1 of 11
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JUDGMENT
1. In brief, the prosecution story as emerging from the chargesheet is that on 02.09.2017, on receipt of DD No. 5A, PSI Anshu alongwith Ct. Santosh reached at the spot i.e. H. No. 196364, K Block, Jahangir Puri, Delhi, where some public persons were found present and two empty shells were also found at two different places. One brass type scrab (sic) was also found in the plastic pipe attached with the wall of the house. Crime team was called. Complainant Shivani met at the spot, who made the following statement, which reads as under:
That on 02.09.2017, at about 2:40 am, she was feeding her child at the first floor of her house that is why she was awakened at that time. Suddenly she heard the noise of knocking of the door at the ground floor, thereafter, she came outside the balcony of the roof and saw one scooty standing in the gali on which two boys were sitting and one boy was standing in the gali, in front of her house carrying one pistol in his hand. After seeing her standing in the balcony, the boy sitting on the driver seat said "Dekh wo aa gayi".
Thereafter, the pillion rider immediately deboarded from the scooty and after taking pistol from his third SC No. 30/18; FIR No.401/17; PS Jahangir Puri State Vs. Mahesh & Ors. Page No. 2 of 11 -3- associate had fired towards her in order to kill her. Due to this, she ran inside her house. After hearing her screams as well as noise of firing, her family members and neighbours woke up and had gathered in the gail. Her brotherinlaw Narender made a call at 100 number. All the three boys had run away from the spot. Due to confusion and disturbance, she could not note down the number of the said scooty, but she could identify all of them, if they are produced before her.
2. On the basis of said statement, an FIR u/s 307/34 IPC & 27 Arms Act was registered at PS Jahangir Puri and investigations were taken up.
3. During the course of investigations, crime team inspected the place of occurrence and photographer took the photographs. Thereafter, PSI Anshu had lifted the empty shells and prepared its sketch. PSI Anshu had also lifted the brass type scrab (sic), converted the same into a pulanda and sealed with the seal of AK and seized the same.
Thereafter, IO prepared the site plan of the spot. At the place of occurrence, CCTV footages were also checked and after checking the CCTV footage installed at the ground floor, it was found that the incident was captured in the said CCTV. Thereafter, PSI Anshu SC No. 30/18; FIR No.401/17; PS Jahangir Puri State Vs. Mahesh & Ors. Page No. 3 of 11 -4- obtained the said CCTV footage in a DVD from brotherinlaw of complainant Shivani.
Thereafter, on 05.10.2017, accused Mahesh and Azad @ Mehtab were arrested at the instance of secret information and their disclosure statements were recorded. Both the accused persons refused to participate in TIP proceedings. Two days police custody remand of both the accused persons were obtained. During police custody remand, both the accused persons disclosed that the weapon of offence as well as scooty, which were used in the commission of offence are with their third accomplice Hemant, who was not arrested and against whom NBWs will be obtained from the Hon'ble Court.
Thereafter, chargesheet was filed against both the accused persons namely Mahesh and Azad @ Mehtab u/s 307/34 IPC & 27 Arms Act.
4. Vide order dated 16.03.2018 the charge(s) u/S. 307/34 IPC was framed against accused persons Mahesh and Azad @ Mehtab and the charge(s) u/S. 27 Arms Act was also framed against accused Mahesh, to which they pleaded not guilty and claimed trial. Thereafter, supplementary chargesheet u/s 307/34 IPC was filed against accused Hemant @ Kale.
Vide order dated 27.09.2018 the charge(s) u/S. 307/34 IPC was SC No. 30/18; FIR No.401/17; PS Jahangir Puri State Vs. Mahesh & Ors. Page No. 4 of 11 -5- framed against accused Hemant @ Kale, to which he pleaded not guilty and claimed trial.
5. Thereafter, the prosecution has examined seven witnesses in support of its case :
a) PW1 is ASI Angad, Duty Officer, who has proved DD No. 5A Ex.
PW1/A. He has also proved the copy of FIR Ex. PW1/B, endorsement on the rukka Ex. PW1/C and certificate u/S. 65B Evidence Act as Ex. PW1/D.
b) PW2 is SI Sajjan Kumar, Mobile Crime Team Incharge, who had inspected the place of occurrence and has prepared crime team report Ex. PW2/A.
c) PW3 is Ct. Ram Avtar, Mobile Crime Team photographer, who has proved the 10 photographs as Ex. PW3/A (colly), CD containing the said photographs as Ex. PW3/B and the certificate u/s 65B of Indian Evidence Act as Ex. PW3/C.
d) PW4 is Ct. Santosh, who deposed to have joined the investigation with PSI Anshu and got the FIR registered upon rukka being handed over to him.
e) PW5 is HC Sanjay, who has also deposed to have joined the investigation with PSI Anshu.
f) PW6 is Shivani, the complainant and the eye witness, who has turned totally hostile with regard to the identity of the present accused SC No. 30/18; FIR No.401/17; PS Jahangir Puri State Vs. Mahesh & Ors. Page No. 5 of 11 -6- persons as well as the manner of the incident, despite long cross examination by the Ld. APP for the State.
g) PW7 is Narender, brotherinlaw of complainant PW6 Shivani, who has deposed that on 04.09.2017, he handed over the CD of CCTV footage of incident dated 02.09.2017, which was seized vide seizure memo Ex. PW7/A with certificate u/s 65B of Indian Evidence Act Ex. PW7/B. He has also correctly identified the CD as Ex. PW7/Article 1 as well as the eight photographs of the footage as Ex. PW7/Article 2 (collectively). However, this witness has also turned totally hostile with regard to the identity of the present accused persons as well as the manner of the incident, despite long crossexamination by the Ld. APP for the State.
Accused persons had also made separate statement in which they admitted the TIP proceedings dated 09.10.2017 qua accused Mehtab @ Azad Ex. P1, TIP proceedings dated 09.10.2017 qua accused Mahesh Ex. P2, DD entry no. 17 dated 24.04.2018 Ex. P3, kalandara 41.1 (a) Cr.P.C. dated 23.04.2018 vide DD No. 45 (running into 6 pages) Ex. P4, arrest memo in DD No. 45 Ex. P5, personal search memo in DD no. 45 Ex. P6, arrest memo in FIR No. 401/17, PS Jahangir Puri Ex. P7, TIP dated 27.04.2018 qua accused Hemant @ Kale Ex. P8, certificate u/s 65B of Indian Evidence Act of PCR form dated 02.01.2018 Ex. P9 and PCR form no. 1 Ex. P10.
SC No. 30/18; FIR No.401/17; PS Jahangir Puri State Vs. Mahesh & Ors. Page No. 6 of 11 -7-
6. I have heard Ld. Addl. PP for the State as well as Sh. Vijay Kumar, Ld. Counsel for all the accused persons.
7. It was contended by Ld. Defence counsel that both the material prosecution witnesses i.e. complainant PW6 complainant Smt. Shivani and PW7 Sh. Narender had turned hostile and had not supported the prosecution case at all, despite lengthy cross examination by the Ld. Addl. PP for the State on the manner of the incident or about the identity of the accused persons. He further submits that PW7 Narender who had allegedly provided the CCTV footage of the incident to the police has deposed in his testimony recorded on 03.10.2019 as under :
Witness has seen the whole footage and stated that this is not the same footage, which he had provided to the police. Witness stated that the surrounding area visible in the CD / footage is not matching near his house. Witness stated that he had not seen these three boys ever and in the footage faces of the persons are not clearly visible.
He further submitted that certain various memos and other documents have already been admitted by the accused persons and even if all the remaining prosecution witnesses are allowed to be examined, even then it would be impossible to secure the conviction SC No. 30/18; FIR No.401/17; PS Jahangir Puri State Vs. Mahesh & Ors. Page No. 7 of 11 -8- of the accused persons on the testimonies of the remaining prosecution witnesses, who were either the police officials or other formal witnesses. Therefore, no purpose would be served by continuing with the trial, as the same would be a futile exercise.
8. On the other hand, Ld. Addl. PP for the State strongly controverted the above contentions.
9. After having gone through the rival contentions, it was found that both the material prosecution witnesses i.e. PW6 complainant Smt. Shivani and PW7 Sh. Narender had turned totally hostile during their testimonies in the court, while appearing as above witnesses, they have not deposed anything whatsoever against the accused persons, despite lengthy crossexamination by Ld. Public Prosecutor, they have not supported the prosecution case at all regarding the identity of the persons, who had fired bullet from country made pistol towards PW6 with such intentions or knowledge and under such circumstances that if by that act, they would had caused the death of PW6.
PW7 Narender who had allegedly provided the CCTV footage of the incident to the police has deposed in his testimony recorded on 03.10.2019 as under :
Witness has seen the whole footage and stated that SC No. 30/18; FIR No.401/17; PS Jahangir Puri State Vs. Mahesh & Ors. Page No. 8 of 11 -9- this is not the same footage, which he had provided to the police. Witness stated that the surrounding area visible in the CD / footage is not matching near his house. Witness stated that he had not seen these three boys ever and in the footage faces of the persons are not clearly visible.
10. Remaining witnesses and the witnesses, PW1, PW2, PW3, PW4 and PW5 already examined were either police officials or other formal witnesses, whose testimonies does not improve the case of the prosecution, as their testimonies did not connect the accused with the offence(s) for which they have been charged.
11. In these circumstances, since both the material prosecution witnesses i.e. PW6 complainant Smt. Shivani and PW7 Sh. Narender had turned hostile on the point of manner of the incident and identity of the accused persons, and PW7 who had provided the alleged CCTV footage of the incident to the IO had deposed that the footage shown to him in the Court was not the same, which was provided by him to the police and the surrounding area visible in the CD / footage is not matching their house and he had never seen those boys as are visible in the said footage and in the CCTV footage, faces of the persons are not visible.
SC No. 30/18; FIR No.401/17; PS Jahangir Puri State Vs. Mahesh & Ors. Page No. 9 of 11 -10- Further, the said CCTV footage was played in the court on 01.11.2019 by the IO in the presence of the accused and their Ld. Defence Counsel and Ld. Addl. PP for the State, from which one accused is found firing shots towards a house, who is having his face covered with handkerchief and the back and side pose of the two other accused persons sitting on the scooty is visible and their faces cannot be identified by this Court.
12. Therefore, even if all the remaining prosecution witnesses would have been allowed to be examined, who were either police officials or other formal witnesses as stated above, even then it would have been impossible to secure the conviction of the accused persons on the testimonies of the said remaining witnesses.
13. In these circumstances, continuing with the trial would have been a completely futile exercise and no purpose would have been achieved by doing so, as a consequence, prosecution evidence was closed, since no incriminating evidence had come on the record to connect the accused persons with the offence(s) with which they have been charged. Consequently, statements of accused persons u/s 313 Cr.P.C. were dispensed with.
14. Since no iota of evidence has come on the record to connect the SC No. 30/18; FIR No.401/17; PS Jahangir Puri State Vs. Mahesh & Ors. Page No. 10 of 11 -11- accused persons with the offence(s) with which they have been charged, in these circumstances, all the accused persons Mahesh, Azad @ Mehtav and Hemant @ Kale stand acquitted of the charge(s) under Sections 307/34 IPC, whereas accused Mahesh also stands acquitted of the charge(s) under Section 27 Arms Act. Their previous bail bond are cancelled. Previous sureties stand discharged.
15. All the accused are directed to furnish their personal bond for the sum of Rs.10,000/ each with one surety each of like amount in compliance of Section 437A Cr.P.C. Documents, if any be returned after cancelling the endorsement, if any, on the same.
16. File on completion be consigned to record room.
Digitally signed by SANJEEV SANJEEV AGGARWAL
AGGARWAL Date: 2019.11.02
13:21:28 +0530
Announced in the open Court (Sanjeev Aggarwal)
st
on 01 Day of November 2019. Addl. Sessions Judge02,North Rohini Courts, Delhi 01.11.2019 SC No. 30/18; FIR No.401/17; PS Jahangir Puri State Vs. Mahesh & Ors. Page No. 11 of 11