Delhi District Court
State vs Gaurav Yadav @ Banti (On Bail) on 1 May, 2015
IN THE COURT OF SH. SANJAY SHARMA : SPECIAL JUDGE (NDPS) / ADDL. SESSIONS JUDGE, (NORTH-EAST): KARKARDOOMA COURTS, DELHI SC No. : 12(I)/11 FIR No. : 600/2010 PS : Bhajanpura U/Sec. : 394/397/398 IPC Case ID : 02402R090732011 State Versus Gaurav Yadav @ Banti (on bail) S/o Sh. Ravinder Yadav R/o D-426, Gali No. 8A, Vijay Park Maujpur, Delhi Date of Institution : 17.11.2011 Date of reserving order : 13.02.2015 Date of Judgment : 01.05.2015 JUDGMENT
1. On 17.12.2010 at 13:27:55 hrs., PW-9 L/Ct. Bharti, Delhi Police Control Room, PHQ, New Delhi received a call 'jhagre mein chaku mar diya hai' at Vijay Park, H. No. C-10, Gali No. 8A, Bhajanpura, near Government School through mobile phone No. 9953605157. She passed the information on the net. She recorded the information in FORM-I Ex. PW9/A.
2. On 17.12.2010 at 01.30 p.m., PW-1 SI Shashi Gupta, Duty Officer, PS Bhajanpura received the said information from Police Control Room, N/E District through telephone. She recorded the said information in roznamcha register vide DD No. 16A Ex.PW1/B and handed over a copy thereof to PW-7 HC Sandeep Tyagi for appropriate action.
FIR No. 600/2010 State Vs. Gaurav Yadav @ Banti Page No. 1/193. On receipt of a copy of DD No. 16A Ex.PW1/A, PW-7 HC Sandeep Tyagi with PW-3 Ct. Sita Ram reached at C-10, Jalebi Park, Yamuna Vihar. Where he came to know that the injured had been taken to GTB Hospital by PCR Van. He made efforts to search any eye witness but he could not find any eye witness at the spot.
4. On 17.12.2010 at about 02.30 p.m., the injured Sachin was brought to Casualty of GTB Hospital by HC Govind, PCR B-20 with alleged history of stab with a knife at around 12.45 p.m. on 17.12.2010. He was conscious and oriented. Dr. Pulkesh Kumar, Junior Resident, GTB Hospital examined the injured Sachin. He observed an incised wound of around 0.5 c.m. X 0.2 c.m. at the 6th inter-costal space on right side and underlying plura was breached. He opined the nature of the weapon as sharp. He declared the patient Sachin fit for statement. He prepared MLC Ex.PW4/A. He sealed one brown colour T-shirt Ex.P-2 of the injured in a cloth parcel and handed it over to Duty Constable.
5. PW-7 HC Sandeep Tyagi with PW-3 Ct. Sita Ram reached at GTB Hospital. He obtained MLC Ex.PW4/A of the injured Sachin. He recorded the statement Ex.PW7/A of the injured Sachin. Thereafter, PW-7 HC Sandeep Tyagi received the parcel sealed with the seal of MLC GTB Hospital containing T-shirt of the injured from Duty Constable. He reached at the scene of crime.
FIR No. 600/2010 State Vs. Gaurav Yadav @ Banti Page No. 2/196. Statement Ex.PW7/A is loosely translated as under:-
"Statement of Sachin S/o Sh. Inderjeet R/o H. No. 215-B, Gali No. 5, Ambedkar Basti, Maujpur, Delhi. Age 21 years. T. N. 8860018391 Stated that I alongwith my family residing at the aforesaid address. I provide sound service in Jagran. On 17.12.2010 at about 12.45 p.m., I was hearing song on my mobile phone in Jalebi Wala Park, C-10, Yamuna Vihar. I had taken out some amount from my purse kept in my pocket for purchasing something for eating. Two boys who were sitting there, had seen the money kept in my purse. At that time, I had about 5,000/- rupees in my purse. After sometime, one boy who was already known to me came. His name is Gaurav Yadav @ Banti S/o Sh. Ravinder Yadav R/o D-426, Gali No. 8A, Vijay Park, Maujpur, Delhi. The moment he came, he intended to snatch my mobile phone. When I had not given my mobile phone, the said two boys asked him to snatch my purse. When I tried to stop him from snatching my purse, the said two boys caught hold of me and Banti stabbed a knife in my abdomen and one of the said boys had taken out purse from the rear pocket of my trousers. All of them ran away from there. I made a call to my friend Anil and called him there. After reaching there, my friend made a call to the police. PCR van brought me to GTB Hospital for treatment. I can identify the associates of Gaurav Yadav, if produced before me. Legal action be taken against them."
7. PW-7 HC Sandeep Tyagi made an endorsement Ex.PW7/B thereon for registration of a case under section 394 of the Indian Penal Code (in short 'IPC') and handed it over to PW-3 Ct. Sita Ram who proceeded from GTB Hospital to police station Bhajanpura at 3.30 p.m. on 17.12.2010. At 04.00 p.m., PW-2 ASI Harmender Singh, Duty Officer, PS Bhajanpura received rukka through PW-3 Ct. Sita Ram. He got recorded FIR No. 600/2010 under section 394 IPC at PS Bhajanpura through computer operator and a copy thereof is Ex.PW2/A. FIR No. 600/2010 State Vs. Gaurav Yadav @ Banti Page No. 3/19
8. After registration of the FIR, further investigation of the case was assigned to PW-10 Insp. Hansraj Thakran. PW-2 ASI Harmender Singh handed over a copy of FIR alongwith original rukka to PW-3 Ct. Sita Ram for being handed over to PW-10 Insp. Hansraj Thakran. At about 05.00 p.m., PW-3 Ct. Sita Ram reached at Kardam Puri Pulia, 66 foota Road and handed over the copy of FIR and original rukka to PW-10 Insp. Hansraj Thakran.
9. At about 05.15 p.m., PW-10 Insp. Hansraj Thakran with PW-3 Ct. Sita Ram reached at the scene of occurrence at Jalebi Wala Park, C-10, Yamuna Vihar, Bhajanpura where he met PW-7 HC Sandeep Tyagi and received MLC of the injured Sachin and a sealed cloth parcel alongwith sample seal having impression 'MLC GTB Hospital' vide seizure memo Ex.PW3/A. He inspected the scene of occurrence and prepared site plan Ex.PW10/A at the instance of PW-7 HC Sandeep Tyagi. He recorded statement of witnesses. He deposited sealed parcel in police malkhana. He searched the accused persons.
10. On receipt of a secret information, PW-10 Insp. Hansraj Thakran alongwith PW-12 SI Rakesh Kumar and PW-8 Rakesh Kumar apprehended the accused Gaurav Yadav @ Banti near a ruined room in Bhagat Singh Park, Yamuna Vihar, Delhi on 19.12.2010 at about 05.30 p.m. During cursory search, one country made pistol was recovered from right dub of the trousers of the accused Gaurav Yadav @ Banti.
FIR No. 600/2010 State Vs. Gaurav Yadav @ Banti Page No. 4/1911. One live cartridge was recovered from right pocket of the trousers of the accused Gaurav Yadav @ Banti. On being checked, the said country made pistol was found loaded with one live cartridge.
12. PW-10 Insp. Hansraj Thakran prepared the sketch of the country made pistol and two live cartridges vide Ex. PW8/A after taking their measurements. He converted the said country made pistol and two live cartridges into a cloth parcel and sealed it with his seal having impression 'HR' and seized the cloth parcel vide seizure memo Ex. PW8/B. After interrogation, he arrested the accused Gaurav Yadav @ Banti vide arrest memo Ex. PW8/D and conducted his personal search vide personal search memo Ex. PW8/E. He recorded disclosure statement of the accused Gaurav Yadav @ Banti vide Ex.PW8/C wherein he disclosed the involvement of Sonu and Bhura (juveniles) and that he could get the knife used in the commission of the offence recovered from the corner of the said Jalebi Wala Park, Yamuna Vihar, Delhi. The accused Gaurav Yadav @ Banti pointed out the place of incident vide fard nishandehi Ex.PW8/F.
13. Pursuant to the disclosure statement Ex.PW8/C, the accused Gaurav Yadav @ Banti led PW-10 Insp. Hansraj Thakran with PW-12 SI Rakesh Kumar and PW-8 Ct. Ashok Kumar to the Jalebi Park, Yamuna Vihar, Delhi and got recovered one knife from the bushes in the said Park.
FIR No. 600/2010 State Vs. Gaurav Yadav @ Banti Page No. 5/1914. PW-10 Insp. Hansraj Thakran taken measurements of the knife and prepared a sketch thereof which is Ex.PW8/G. The length of the blade of the knife was 10.5 c.m. and its width was 2.9 c.m. The length of the handle of the knife was 13.1 c.m. He converted the said knife into a cloth parcel and sealed it with his seal having impression 'HR' and seized the parcel vide seizure memo Ex.PW8/H.
15. At the instance of the accused Gaurav Yadav @ Banti, Sonu and Arjun @ Bhura were apprehended from Gali No. 10, Vijay Park, Delhi vide memo Mark PW8/J3 and personal search memo Mark PW8/J4 and Mark PW8/J5. PW-10 Insp. Hansraj Thakran recovered one purse belonging to the complainant Sachin on search of the accused Sonu which he seized after converting into a cloth parcel and sealing it with his seal having impression 'HR' vide seizure memo Ex.PW8/J1.
16. PW-10 Insp. Hansraj Thakran produced accused Sonu and Arjun before the Juvenile Justice Board and their TIP was conducted on 04.01.2011 and TIP of the case property i.e. purse was conducted on 13.01.2011.
17. On 30.12.2010, PW-6 Ct. Harbir Singh, as per direction of MHC (M), taken a sealed parcel containing country made pistol and live cartridges duly sealed with the seal having impression 'HR' alongwith FSL form to FSL, Rohini vide RC Ex.PW6/A. He deposited the said sealed parcels and form FSL in FSL, Rohini vide acknowledgement receipt Ex.PW6/B. FIR No. 600/2010 State Vs. Gaurav Yadav @ Banti Page No. 6/19
18. PW-11 Sh. Krishan Kumar Varshney, Asst. Director (Ballistics), FSL, Rohini examined the country made pistol and the live cartridges vide report Ex.PW11/A. According to the Ballistic Report Ex.PW11/A, the country made pistol Ex.P-3 and cartridges Ex.P-4 and Ex.P-5 are fired arm/ammunition as defined in the Arms Act, 1959.
19. Pursuant to an application Ex.PW10/B dated 07.02.2011 submitted by PW-10 Insp. Hansraj Thakran, PW-4 Dr. Amit Kumar Gupta, CMO, GTB Hospital given the opinion Ex.PW4/B regarding the nature of injury sustained by the injured Sachin. He given opinion regarding the weapon i.e. knife. According to him, the possibility of the injury sustained by the injured Sachin with the knife Ex.P-1 cannot be ruled out. The cut mark on the T-shirt Ex.P-2 with the knife Ex.P-1 cannot be ruled out. He sealed the T-shirt and the weapon of offence in cloth parcels with seal of MLC GTB Hospital and mentioned particulars thereon and the said parcels were handed over to PW-13 SI Ashok.
20. On 16.02.2011, PW-14 Sh. B.K. Singh, Addl. DCP, North-East District, Delhi granting sanction under section 39 of the Arms Act for the prosecution of the accused Gaurav Yadav @ Banti for committing offence under section 25 of the Arms Act for consciously possessing a country made pistol .315 bore and two live cartridges .315/8 m.m. bore on 19.12.2010 without any valid license and in contravention of section 3 of the Arms Act. Sanction under section 39 of the Arms Act is Ex.PW14/A. FIR No. 600/2010 State Vs. Gaurav Yadav @ Banti Page No. 7/19
21. On completion of the investigation, the accused Gaurav Yadav @ Banti was charge-sheeted under section 394/397/398/34 IPC and 25 Arms Act.
22. On appraisal of the material on record, the accused Gaurav Yadav @ Banti was charged for offences under section 394/34 IPC, 397/398 IPC and 25 of the Arms Act.
23. During the trial, the prosecution examined 14 witnesses as under:-
Name of the witnesses Description of the witnesses PW-1 SI Shashi Gupta DD Writer PW-2 ASI Harmender Singh Duty Officer PW-3 Ct. Sita Ram Accompanied IO HC Sandeep Tyagi PW-4 Dr. Amit Kumar Gupta Given opinion regarding nature of injury PW-5 Anil Friend of the injured Sachin PW-6 Ct. Harbir Singh Parcel depositor PW-7 HC Sandeep Ist Investigating Officer PW-8 Ct. Ashok Kumar Recovery witness PW-9 L/Ct. Bharti Police Control Room, PHQ, Delhi PW-10 Insp. Hansraj Thakran IInd Investigating Officer PW-11 Sh. K. C. Varshney Ballistic Expert PW-12 SI Rakesh Kumar Recovery witness PW-13 SI Alok Kumar Parcel Collector PW-14 Addl. DCP B.K. Singh Sanctioning Authority
24. Incriminating circumstances appearing in the prosecution evidence were put to the accused as required under section 313 Cr.P.C. He denied the incriminating evidence and claimed that the injured falsely stated against him as he had previous enmity with him.
FIR No. 600/2010 State Vs. Gaurav Yadav @ Banti Page No. 8/1925. The accused Gaurav Yadav @ Banti stated as under:-
"Question 45: Do you want to say anything else?
Ans. I have been falsely implicated in this case due to enmity with the complainant and the police arrested me only to work out the case. No pistol or cartridge nor any knife was recovered from me or at my instance. The said articles have been planted upon me."
26. No witness was examined in defence.
27. I have heard arguments of Sh. I.H. Siddiqui, Ld. Addl. PP for the State and Sh. S.K. Singh, Ld. defence counsel and considered the evidence, oral and documentary, on record.
28. Sh. I.H. Siddiqui, Ld. Addl. PP for the State submitted that the injured Sachin expired during the trial and therefore, he was not examined as a prosecution witness. He submitted that the accused Gaurav Yadav @ Banti has been named in the complaint Ex.PW7/A. He submitted that there is medical evidence that the injury sustained by the injured Sachin on his abdomen was possible with the knife Ex.P1 recovered at the instance of the accused Gaurav Yadav @ Banti. He submitted that the possibility of cut-marks on the T-shirt of the injured Sachin has not been ruled out. He submitted that the prosecution has been able to prove that the accused Gaurav Yadav @ Banti was found in possession of one .315" bore country made pistol and two live 8 mm/.315 cartridges on 19.12.2010 in Bhagat Singh Park, Yamuna Vihar without any license or permit in contravention of section 3 of the Arms Act.
FIR No. 600/2010 State Vs. Gaurav Yadav @ Banti Page No. 9/1929. Sh. I.H. Siddiqui, Ld. Addl. PP for the State further submitted that PW-10 Insp. Hansraj Thakran, PW-12 SI Rakesh Kumar and PW-8 Ashok Kumar have proved the recovery of country made pistol and two live cartridges from the possession of the accused Gaurav Yadav @ Banti. He submitted that there is no infirmity in their depositions. He submitted that the evidence of the recovery witnesses is credible and consistent. He submitted that non-examination of independent witness to prove the recovery of country made pistol and two live cartridges is not fatal to the case of the prosecution as the public is generally averse to become witness so as to avoid visits to the police station and the Court. He submitted that there is circumstantial evidence to prove that the accused Gaurav Yadav caused grievous injury to the injured Sachin. He submitted that the prosecution has been able to prove the recovery of the country made pistol and two live cartridges from the possession of the accused Gaurav Yadav @ Banti. He submitted that the FSL Report Ex.PW11/A proved that the country made pistol and the live cartridges recovered from the accused are firearm/ammunition as defined in the Arms Act, 1959. He submitted that the prosecution has proved sanction Ex.PW14/A accorded by the competent authority for the prosecution of the accused for possessing Arms and Ammunition without license and permit. He submitted that the accused Gaurav Yadav @ Banti is also liable to held guilty for committing offence under section 25 of the Arms Act.
FIR No. 600/2010 State Vs. Gaurav Yadav @ Banti Page No. 10/1930. Sh. S.K. Singh, Ld. defence counsel submitted that the injured Sachin was not examined as a prosecution witness as he expired on 20.12.2012. He submitted that there was no eye witness to the incident in question. He submitted that in the absence of the examination of the injured Sachin, there is no evidence on record to bring home the charges under section 394/397/398/34 IPC. He submitted that the recovery of the country made pistol and two live cartridges from the possession of the accused is highly doubtful. He submitted that PW-10 Insp. Hansraj Thakran did not join any independent witness despite availability. He submitted that there are major contradictions in the depositions of the members of the recovery team regarding the mode and manner of recovery. He submitted that the accused cannot be convicted on the basis of depositions of police officials alone. He submitted that the prosecution has failed to bring home the charge under section 25 of the Arms Act. He submitted that accused deserves acquittal in this case.
31. I have carefully considered the evidence, oral and documentary on record.
32. The present case was registered on the complaint Ex.PW7/A of the injured Sachin that on 17.12.2010 at about 12.45 p.m. at Jalebi Wala Park at C-10, Yamuna Vihar, Bhajanpura, the accused Gaurav Yadav @ Banti and his two associates in furtherance of their common intention stabbed a knife in his abdomen and robbed his purse containing a sum of Rs.5,000/-.
FIR No. 600/2010 State Vs. Gaurav Yadav @ Banti Page No. 11/1933. The injured Sachin was not examined as a prosecution witness. He expired on 20.02.2012 before the commencement of the trial. There is no eye-witness of the incident in question. In the absence of his examination, there is no material available on record to bring home the charges under section 394/397/398/34 IPC against the accused Gaurav Yadav @ Banti.
34. The prosecution examined PW-5 Anil, the friend of the injured. PW-5 Anil was called by the injured Sachin after the incident. He allegedly informed the police about the incident in question and thereafter, PCR Van reached at the scene of occurrence and taken the injured Sachin to GTB Hospital. PW-5 Anil has also not supported the case of the prosecution. He denied that he made a call at 100 number. He denied that the injured Sachin disclosed him the name of the person who stabbed him. He deposed as under:-
"On 17.12.2010, at about 1.00 p.m. or 1.30 p.m. I was present at the house of a friend in the area of Maujpur at that time, I received a phone call of Sachin, who is my friend, on my mobile, as he used to work with me that he has been stabbed by someone at Maujpur near Jalebi Park, Maujpur, Delhi. I immediately rushed there. He was found there in injured condition. Somebody called the police on phone No. 100.
Court query: Whether injured Sachin had disclosed you the name of the person, who gave stab injury to him?
Ans. No. Injured Sachin was taken to GTB Hospital by me in the PCR Van. Police has recorded my statement.FIR No. 600/2010 State Vs. Gaurav Yadav @ Banti Page No. 12/19
At this stage, Ld. APP for the State seeks permission of the Court to cross-examine the witness as the witness is resiling from his earlier statement.
XXXXXX by Sh. Om Prakash, Ld. Chief Prosecutor for the State.
It is correct that the name of accused Banti was disclosed by me to the police official as the person who gave stab injuries to Sachin. I know accused Banti, present in the Court today. I know him even prior to the incident. I do not remember if I had also informed the police on 100 number, due to lapse of time.
XXXXX by Sh. S.K. Singh, Ld. counsel for the accused.
Injured Sachin developed TB, after this case. When injured Sachin was being taken to hospital, he was conscious and he was talking with me. He has disclosed the manner, in which he sustained injuries but the name of the accused was not disclosed by him to me. I cannot say whether the police officials have read over my statement to me.
It is wrong to suggest that I am deposing falsely in the Court today."
35. As regards reliance of the prosecution on the recovery of knife Ex.P-1 is concerned, it is evident that the recovery is insufficient to sustain the charge. Moreover, there was no blood on the knife and therefore, there was no occasion for the prosecution to seek serological examination of the knife to detect the blood group on the knife.
36. The recovery of the knife Ex.P-1 at the instance of the accused Gaurav Yadav @ Banti is doubtful. The knife was recovered from an open place in the park. There is no site plan of the place of recovery of the knife.
FIR No. 600/2010 State Vs. Gaurav Yadav @ Banti Page No. 13/1937. It was further case of the prosecution that the accused Gaurav Yadav @ Banti was found in possession of a country made pistol Ex.P-3 and two live cartridges Ex.P-4 and Ex.P-5 on 19.12.2010 at 05.30 p.m. in Bhagat Singh Park, Yamuna Vihar without any license or permit.
38. The prosecution has examined PW-10 Insp. Hansraj Thakran, PW-12 SI Rakesh Kumar and PW-8 Ct. Ashok Kumar to prove the recovery of the said country made pistol and live cartridges from the accused Gaurav Yadav @ Banti.
39. PW-10 Insp. Hansraj Thakran, In-Charge of the raiding team deposed as under:-
"On 19.12.2010, I along with Ct. Ashok Kumar and SI Rakesh Kumar were in the investigation of this case. On receipt of secret information, accused Gaurav Yada @ Banti present in the Court today was apprehended from MTNL Ground near broken rooms, Yamuna Vihar. On his search, one country made pistol was recovered from the left dub of his pant. On checking, one live cartridge was found in the katta which was taken out from the same. One another live cartridge was recovered from the right pocket of his pant. I prepared sketch already Ex.PW8/A of the recovered articles and mentioned measurement. Katta and cartridges were kept in one cloth and a pulanda was prepared which was sealed with the seal of HR and taken into police possession vide memo already Ex.PW8/B. Accused was interrogated and arrested by me vide arrest memo already Ex.PW8/D and personal search was effected vide memo already Ex.PW8/E. Disclosure statement of accused Gaurav was recorded by me which is already Ex.PW8/C."
40. It is therefore, evident from the deposition of PW-10 Insp. Hansraj Thakran that the accused Gaurav Yadav @ Banti was arrested from the MTNL Ground, Yamuna Vihar.
FIR No. 600/2010 State Vs. Gaurav Yadav @ Banti Page No. 14/1941. It is further evident from his deposition that PW-10 Insp. Hansraj Thakran had received a secret information regarding the presence of the accused Gaurav Yadav @ Banti at the said place.
42. PW-10 Insp. Hansraj Thakran has not deposed that he made any effort to associate any public person at any time in search and seizure proceedings.
43. PW-12 SI Rakesh Kumar deposed as under:
"On 19.12.2010, I was posted at PS Bhajanpura. On that day, I had joined the investigation of this case with IO Insp. Hansraj Thakran, Ct. Ashok and Ct. Ashwani. IO was in uniform and we were in civil clothes. At about 3.15 p.m., we had left PS and when we had reached main road Noor-E-Ilahi, secret informer met the IO at about 4.15 p.m. Secret informer had informed the IO that accused Gaurav wanted in this case would come near broken room inside B.S. Park to collect cash from him. Thereafter, we had left for B. S. Park and in the way, IO had tried to join the public witnesses but no one had agreed to join the raiding party. I alongwith Ct. Ashok had gone inside B. S Park and took position near the broken room. While IO alongwith Ct. Ashwani and secret informer were stayed outside the B.S Park. At 4.45 p.m., accused Gaurav present in the Court today had come near the broken room in B. S Park. On the signal of IO, I alongwith Ct. Ashok apprehend accused Gaurav. IO alongwith Ct. Ashwani also arrived there. During cursory search of accused Gaurav, one country made pistol in loaded condition was recovered from the left dub of wearing pant of the accused. One live cartridge was recovered from the right pocket of wearing pant of the accused. IO unloaded the pistol and taken out the live cartage from the pistol.
IO prepared sketch of pistol and of both cartridges which is already Ex.PW8/A and it bears my signature at point B. Measurement of pistol and cartridges were taken and mentioned in the sketch. Pistol and cartridges were kept in a pulanda which FIR No. 600/2010 State Vs. Gaurav Yadav @ Banti Page No. 15/19 was sealed with the seal of 'HR' and taken into police possession vide seizure memo already Ex.PW8/B which bears my signature at point B. Accused was interrogated by the IO and his disclosure statement already Ex.PW8/C which bears my signature at point B was recorded. Accused was arrested vide memo already Ex.PW8/D and his personal search was effect vide memo already Ex.PW8/E which bears my signature at point B."
44. On careful examination of deposition of PW-12 ASI Rakesh Kumar, it is evident that he has stated about the efforts made by PW-10 Insp. Hansraj Thakran to associate public persons to the raiding team. He stated that the raiding team reached at the said park before arrival of the accused Gaurav Yadav @ Banti and taken their positions. He stated that the accused Gaurav Yadav @ Banti reached the said park at about 04.45 p.m. whereas PW-10 Insp. Hansraj Thakran has not deposed to this effect.
45. PW-8 Ct. Ashok Kumar was the member of the raiding team. He deposed as under:-
"On 19/12/2010, I was posted as Constable at PS Bhajanpura, Delhi. On that day, I and SI Rakesh Kumar participated the investigation of the present case with Insp. Hans Raj Thakran, IO of the case. I and SI Rakesh Kumar were in plain cloth. IO told us about the secret information received by him that one person Gaurav @ Banty can be apprehended from Bhagat Singh Park from behind the old damaged room (khandhar numa kamre) and the IO took us to Bhagat Singh Park, from where, we apprehended one person, whose name was revealed as Gaurav Yadav @ Banty. I identify the accused Gaurav Yadav @ Banty, who is present in the Court today (correctly identified by the witness). The IO asked me to take cursory search of the accused and one dessi katta (country made pistol) was recovered from the right FIR No. 600/2010 State Vs. Gaurav Yadav @ Banti Page No. 16/19 dub of the pant. On opening the dessi katta, it found loaded with one live cartridge and one another live cartridge was also recovered from his right pocket of pant. The country made pistol was unloaded. The IO prepared the sketch of the country made pistol and cartridges and measured the same. The measurement was mentioned in the sketch by the IO. The sketch is Ex. PW8/A, which bears my signature at point A. The IO converted country made pistol and cartridges into pulanda and sealed with the seal of HR and seized with seizure memo, which is Ex. PW8/B, which bears my signature at point A. The IO interrogated the accused and arrested the accused. The IO recorded the disclosure statement of the accused, which is Ex. PW8/C, which bears my signature at point A. The IO prepared the arrest memo and personal search memo of the accused. In the personal search of the accused one mobile phone of Samsung alongwith the ear phone, one kara and Rs. 20/- were recovered. The arrest memo is Ex. PW8/D and personal search memo is Ex. PW8/E, which bears my signature at point A respectively."
In his cross-examination, he deposed as under:-
" .....When cursory search of the accused was conducted in the Park after apprehending the accused, there were no public persons available in the Park. Residential area was situated 100 meters away across the road, from the place of the arrest of accused. No resident from the residential area was requested by the IO to join the investigation."
46. On careful examination of depositions of the members of the recovery team, it is evident that there are major inconsistencies and discrepancies. According to PW-10 Insp. Hansraj Thakran, on 19.12.2010 at 03.15 p.m., he alongwith PW-12 SI Rakesh Kumar left police station for the investigation of this case. However, there is no departure entry.
FIR No. 600/2010 State Vs. Gaurav Yadav @ Banti Page No. 17/1947. There are contradictions regarding the receipt of the secret information. According to PW-10 Insp. Hansraj Thakran, the accused Gaurav Yadav @ Banti was apprehended pursuant to receipt of secret information. He has not deposed as to when and where the secret information was received by him. PW-12 SI Rakesh Kumar stated that the secret informer met PW-10 Insp. Hansraj Thakran at about 04.15 p.m. at main road, Noor- E-Illahi. PW-8 Ct. Ashok Kumar has not stated so. He stated that PW-10 Insp. Hansraj Thakran told them about the secret information.
48. There are contradictions regarding the availability and efforts made by PW-10 Insp. Hansraj Thakran to join public persons to the search and seizure. PW-10 Insp. Hansraj Thakran has not deposed that he made any effort to join any public person. He stated that he did not call any person from the residential houses near the spot to join the investigation. PW-12 SI Rakesh Kumar stated that IO tried to join the public persons but no one agreed to join the raiding team. PW-8 Ct. Ashok Kumar stated that there were no public person available in the park and no resident was requested by PW-10 Insp. Hansraj Thakran to join the investigation.
49. According to PW-10 Insp. Hansraj Thakran, the accused Gaurav Yadav @ Bunti was apprehended from MTNL Ground near ruined rooms, Yamuna Vihar. Therefore, the accused Gaurav Yadav @ Bunti was already present near ruined rooms, when he was apprehended.
FIR No. 600/2010 State Vs. Gaurav Yadav @ Banti Page No. 18/1950. However, PW-12 SI Rakesh Kumar stated that they had taken position near the ruined room and PW-10 Insp. Hansraj Thakran alongwith Ct. Ashwini and secret informer were outside B.S. Park and the accused reached at about 04.45 p.m. near the ruined room and he was apprehended.
51. There is no site plan of the place of recovery of the country made pistol and live cartridges.
52. It is therefore, evident that there are contradictions in the depositions of the police officials regarding receipt of the secret information, manner of apprehension of the accused Gaurav Yadav @ Banti and efforts made to join public persons to raiding team. There is no arrival entry in the police station.
53. In the presence of such inconsistencies, contradictions and omissions, the accused Gaurav Yadav @ Banti cannot be convicted for the unauthorized possession of a country made pistol and two live cartridges on the basis of the depositions of the police officials in the absence of independent corroboration.
54. Accordingly, the accused Gaurav Yadav @ Banti is acquitted from the charges under section 394/34 IPC, 397/398 IPC and 25 of the Arms Act.
Announced in the open court SANJAY SHARMA on this 01st day of May, 2015. Special Judge NDPS (North-East) ASJ:KKD Courts, Delhi.
FIR No. 600/2010 State Vs. Gaurav Yadav @ Banti Page No. 19/19