Delhi District Court
State vs Nitin Wadhwa Ors on 14 March, 2024
IN THE COURT OF SH. SACHIN SANGWAN,
ADDITIONAL SESSIONS JUDGE (FTC-01), SOUTH-EAST
DISTRICT, SAKET COURT, NEW DELHI.
STATE VS. NITIN WADHWA & Ors.
SC No.1894/2016
FIR No. 202/2008
P.S.: H. N. DIN
U/S 474/399/402/34/174A Part II IPC
& 25/24/29 Arms Act
Particulars of the case:
a) Date of offence : 19.06.2008
b) Offence complained of :U/s 474/399/402/34/174A Part II
IPC & 25/24/29 Arms Act
c) Name of complainant : SI Rajender Singh
d) Name of accused : Lakhvinder Singh @ Lucky
his parentage s/o Sh. Late Sh. Hari Singh
local & permanent residence R/o: C/o Rakesh Dalal, Near Nehru
Stand, Goyla Dairy, Najafgarh,
Delhi.
e) Plea of accused : Pleaded not guilty
f) Final order : Accused acquitted from all the
charges
Date of institution of case : 03.10.2013
Date on which case reserved
for judgment : 27.02.2024
Date of judgment : 14.03.2024
SC No. 1894/2016
FIR No. 202/2008 State v. Nitin Wadhwa & Ors. Pages 1 of 39
JUDGMENT
1. CHARGESHEET 1.1 As per chargesheet, on 19.06.2008 HC Dinesh Kumar received secret information around 4.30 pm that one boy namely Jaibir along with his associates commits car/bike thefts and snatching and today their gang shall assemble around 07.30 pm at Indraprasth Park (Millennium Park), Ring Road near Budh Stoop and they will be having stolen vehicle and illegal weapons with them for committing loot. It was informed that if raid is conducted, the whole gang can be caught and may cases could be solved. The information was shared with senior officers and was lodged in the rojnamcha. Raiding party was formed and at 06.30 pm the raiding party in civil dress departed from the police station and reached near the spot around 06.45 am. They parked their vehicle and tried to join public persons in the raid but without success. Around 07.40 pm, one Alto Car bearing no. DL6CE2935 arrived and was parked at the spot. The secret informer indicated that the gang members are in the car. It was noticed that four young males were in the car and the informer informed that the driver was one Nitin. After about ten minutes, another young male came on one motorcycle Bajaj Platina without number plate and without wearing any helmet and stopped near the aforesaid car. The secret informer indicated that said motorcyclist is Jaibir. Thereupon the raiding party surrounded said persons and there was a stampede SC No. 1894/2016 FIR No. 202/2008 State v. Nitin Wadhwa & Ors. Pages 2 of 39 amongst the gang members. The motorcyclist managed to escape, however, the occupants of car were apprehended. The public had gathered but none joined the proceedings despite the police officials disclosing their identities to them and asking them to join the proceedings. The identities of four occupants of the car were found to be Nitin, Sachin @ Sonu, Suresh and Lakhvinder @ Lakki. Nothing was recovered from Nitin and Sachin @ Sonu. However, country made pistol with cartridge was found from the possession of accused Suresh. Likewise, another country made pistol with cartridge was recovered from the possession of accused Lakhvinder @ Lakki. Same were seized by the police. The parentage and address of the motorcyclist was also revealed. Accused Nitin failed to give a satisfactory reply regarding the car being driven by him and failed to produce any documents regarding the same. However, he disclosed that it was his own car and he got it stolen himself so that he does not have to pay its loan installments and he got an FIR registered in Ghaziabad regarding its theft. It was found that said vehicle was indeed reported as stolen on 28.03.2008 at PS Link Road, Ghaziabad vide FIR No.18/2008 and the actual number of the car was DL3CAJ1902. The car along with fake number plate i.e. DL6CE2935 was seized. The motorcycle which was without number plate was also seized and on inquiry it was found to be stolen vide FIR No.330/2008 dated 10.06.2008 from PS Najafgarh. The accused also disclosed that their associate Sachin was having plaster on his foot and he SC No. 1894/2016 FIR No. 202/2008 State v. Nitin Wadhwa & Ors. Pages 3 of 39 accompanied them so that nobody shall suspect them. From the circumstances, it was found that all said four accused had gathered in a vehicle with fake number plate and with weapons towards preparation for committing dacoity. Accordingly, the present case FIR was registered u/s 402/411/474/34 IPC and 25 Arms Act. During investigation, site plan was prepared and said 4 accused were arrested. Statement of witnesses were recorded and case property was deposited in malkhana. Disclosure statements of accused were recorded. The fifth accused Jaibir was also arrested and his disclosure statement was recorded. The case properties related to the other cases were transferred. Recovered weapons were sent to FSL for expert opinion and while the same was awaited, chargesheet was filed against all five accused for offences u/s 402/474/34 IPC and 25 Arms Act. Subsequently, a supplementary chargesheet was filed against accused Suresh and Lakhvinder @ Lakki along with FSL report and sanction u/s 39 Arms Act. During trial accused Lakhvinder @ Lakki absconded and was declared proclaimed offender on 04.01.2019. He was arrested and a supplementary chargesheet was filed against him u/s 174A IPC. However, said accused again absconded from the trial and was again declared PO on 31.10.2022. However, the other accused faced the complete trial and were finally acquitted vide judgment dated 21.03.2023.
1.2 Thereafter, accused Lakhvinder @ Lucky was again arrested by the police and third supplementary charge-sheet was filed against him SC No. 1894/2016 FIR No. 202/2008 State v. Nitin Wadhwa & Ors. Pages 4 of 39 for the offence 174A IPC.
2. CHARGE 2.1 Accused Lakhvinder Singh @ Lakki along with co-accused was charged for the offences u/s 474/399/402/34 IPC and even u/s 25/54/59 Arms Act. Further, in pursuance to the supplementary charge-sheets, accused Lakhvinder Singh @ Lakki was also charged for two counts of the offence u/s 174A Part II IPC. He pleaded not guilty to all the charges and claimed trial.
3. PROSECUTION EVIDENCE 3.1 In support of its case, prosecution has examined 18 witnesses. S. No. Name of the witnesses Nature of the evidence PW-1 SI Rajinder Singh Leader of the raiding party PW-2 ASI Sunil Kumar Duty Officer who registered the FIR No. 331/2008 u/s 356/379/34 IPC PS Dwarka Sector 23 PW-3 ASI Karampal Duty Officer who registered the present case FIR PW-4 Retired SI Chhavi Ram IO of PS Link Road, Gaziabad who conducted investigation Singh regarding theft of Alto car no.
DL3CAJ1902
PW-5 HC Sant Raj Member of raiding party
PW-6 Retired SI Hukum Chand Duty Officer of police station
Najafgarh who registered FIR No.
330/2008, u/s 379 IPC
PW-7 Ct. Ajay Kumar Member of raiding party
PW-8 ASI Harvinder Singh Police official who deposited the
SC No. 1894/2016
FIR No. 202/2008 State v. Nitin Wadhwa & Ors. Pages 5 of 39
case exhibits in the FSL
PW-9 Inspector Suresh Babu IO of PS Sector 20, Noida qua FIR
No.553/08 regarding theft of car
Etroia
no. DL2CA1133
PW-10 ASI Rajinder Witness qua arrest of accused
Jaibir
PW-11 K. C. Varshney Senior Scientific Officer
(Ballistics) who examined country
made pistols and cartridges
PW-12 ASI Vijay Singh Police official who proved entries
in register no.19 regarding case
properties
PW-13 Inspector Sharat Kohli IO of the case
PW14 HC Vinod Sharma Police official who on receipt of
information by secret informer
about the accused, prepared a
raiding party and witness to arrest
of accused Lakhvinder Singh @
Lucky after he was declared
proclaimed offender in the present
case
PW15 ASI K. R. Shaju IO of supplementary chargesheet
against the accused Lakhvinder
Singh @ Lucky
PW16 ASI Ravi Prakash Police Official who executed
process u/s 82 CrPC against the
accused Lakhvinder Singh @
Lucky at his Goyala Dairy address
on 08.09.2022
PW17 HC Mayank Police Official who was part of
raiding party and also witness to
arrest of accused Lakhvinder
Singh @ Lucky
PW18 HC Shayam Singh Police Official who executed
SC No. 1894/2016
FIR No. 202/2008 State v. Nitin Wadhwa & Ors. Pages 6 of 39
process u/s 82 CrPC against the
accused Lakhvinder @ Lakki at
his Goyala Dairy as well as
Jhajjar, Haryana address on
26.10.2018
Though, PW10 ASI Rajender, PW11 K. C. Varshaney and PW12 ASI Vijay Singh were examined while the accused was PO, however, the accused did not dispute their testimonies and he opted not to recall said witnesses for examination/ cross-examination. His statement was recorded regarding the same u/s 294 CrPC r/w 58 Indian Evidence Act.
3.2 The prosecution has exhibited following documents/objects in support of its case:-
No.of exhibit Nature of exhibit Ex.PW1/A DD No.5 regarding receiving of secret information Ex.PW1/A Sketch of recovered katta and cartridges (wrongly numbered) Ex.PW1/C and Seizure memos of kattas and cartridges Ex.PW1/D Ex.PW1/E Seizure memo of number plates of Alto car Ex.PW1/F Seizure memo of car along with its key Ex.PW1/G Seizure memo of motorcycle made Bajaj Patinum along with its key Ex.PW1/H Rukka Ex.PW1/P1 Katta recovered from the possession of accused Suresh Ex.PW1/P2 Cartridges recovered from the possession of accused SC No. 1894/2016 FIR No. 202/2008 State v. Nitin Wadhwa & Ors. Pages 7 of 39 (colly) Suresh Ex.PW1/P3 Katta recovered from the possession of accused Lakhvinder @ Lucky Ex.PW1/P4 Catridges recovered from the possession of accused (colly) Lakhvinder @ Lucky Ex.PW1/P5 Fake number plates seized from the Alto Car (colly) Ex.PW2/A FIR No. 331/2008, u/s 356/379/34 IPC Ex.PW3/A Present case FIR Ex.PW4/A FIR No.129/08 u/s 379 IPC Ex.PW5/A Seizure memo of mobile phone of accused Sachin Ex.PW5/B Arrest memo of accused Nitin Wadhwa Ex.PW5/C Arrest memo of accused Lakhvinder Ex.PW5/D Arrest memo of accused Suresh Ex.PW5/E Arrest memo of accused Sachin Ex.PW5/F Personal search memo of accused Sachin Ex.PW5/G Personal search memo of accused Lakhvinder Ex.PW5/H Personal search memo of accused Nitin Ex.PW5/I Personal search memo of accused Suresh Ex.PW5/J Disclosure statement of accused Nitin Ex.PW5/K Disclosure statement of accused Suresh Ex.PW5/L Disclosure statement of accused Sachin Ex.PW5/M Disclosure statement of accused Lakhvinder Ex.PW6/A FIR No.330/2008 u/s 379 IPC Ex.PW9/A FIR No.553/2008 PS Sector 20, Noida Ex.PW10/A Arrest memo of accused Jaibir Ex.PW10/B Personal search memo of accused Jaibir Ex.PW10/C Disclosure statement of accused Jaibir Ex.PW11/A Ballistic Report regarding examination of country made pistols and cartridges Ex.PW12/A Entries in Register 19 regarding case properties SC No. 1894/2016 FIR No. 202/2008 State v. Nitin Wadhwa & Ors. Pages 8 of 39 Ex.PW13/A Site Plan Ex.PW13/B Seizure memo of chain worn by accused Lakhvinder Singh Ex.PW13/C Seizure memo of motorcycle bearing no. DL 4S BJ 3571 Ex.PA-1 Sanction u/s 39 of Arms Act (admitted u/s 294 CrPC by accused Suresh) Ex.PW14/A Arrest memo of accused Lakhvider @ Lucky Ex.PW14/B Personal search memo of accused Lakhvinder @ Lucky Ex.PW14/C Disclosure statement of accused Lakhvinder @ Lucky Ex.CW2/A Report of process server regarding execution of process u/s 82 CrPC against the accused Lakhvinder @ Lakki Ex.CW2/B Photographs of pasting of process u/s 82 CrPC at the pole on the chowk of the area at the address of Goyala Dairy where the accused resides Ex.PW16/B Process u/s 82 CrPC of accused Lakhvinder @ Lucky Ex.CW1/1 Report of process server Ct. Shyam Singh regarding (wrongly execution of process u/s 82 CrPC against the accused mentioned as on 26.10.2018 CW2/A) 3.3 Though 18 witnesses have been examined by prosecution but the main witnesses of the case are:
i. PW1-SI Rajinder Singh, complainant/Leader of the raiding team and ii. PW13-Inspector Sharat Kohli, IO of the case.
iii. PW16-ASI Ravi Prakash, police official who executed process SC No. 1894/2016 FIR No. 202/2008 State v. Nitin Wadhwa & Ors. Pages 9 of 39 u/s 82 CrPC against the accused Lakhvinder Singh @ Lucky at his Goyala Dairy address and iv. PW-18 HC Shayam Singh, police official who executed process u/s 82 CrPC against the accused Lakhvinder Singh @ Lucky at his Goyala Dairy as well as Jhajjar, Haryana address. 3.4 PW1 SI Rajinder Singh deposed that on 19.06.2008 he was posted at SOS Crime Branch, Sunlight Colony, New Delhi as SI and on that day at about 4.30 pm one secret informer came in their office, who firstly met HC Dinesh Kumar and informed Inspector Rajpal Dabas, who called him in the office where the secret informer told that one person namely Jaibir, who is a snatcher and a car/motorcycle thief, would come at Millennium Park, near Buddha Stoop, Ring Road at about 7.30 pm to meet his associates and he might be carrying illegal arms with him. The said information was reduced into writing by HC Dinesh vide DD No.5 Ex.PW1/A. Inspector Rajpal Dabas directed PW1 to conduct a raid and on his direction, PW1 formed a raiding party comprising of himself, SI Ravinder Kumar, HC Dinesh, HC Omveer, HC Sant Raj, Ct. Ajay, Ct. Rajender and Ct. Sushil. At about 6.30 pm they all in civil dress left the office in private cars and one private motorcycle along with secret informer and they were carrying arms according to malkhana register. At about 06.40 pm, they all reached at the spot. Staff was also briefed there and they also asked 5-6 public persons to join the investigation but none agreed and due to lack of time, they did not serve any notice to them. Staff was SC No. 1894/2016 FIR No. 202/2008 State v. Nitin Wadhwa & Ors. Pages 10 of 39 again briefed and deputed. At about 07.40 pm one Alto Car bearing no. DL-6CE-2935 of silver colour came from the side of bus stop of Sarai Kale Khan and stopped in the parking of Budha Stup, Millenium Park. The secret informer also revealed the name of the driver of the car as Nitin and beside Nitin, three persons were also sitting in the car.
He also gave signal to the staff and after about 10 minutes, one motorcycle made Bajaj Platinum without number plate, came there from the same direction and the person who was driving the said motorcycle was not wearing the helmet and he parked his motorcycle near the Alto Car and the secret informer identified the motorcyclist as Jaibir. At his direction, raiding team tried to apprehend both the accused, however, Jaibir managed to flee from there. He was chased by SI Ravinder Kumar but despite chasing, he could not be apprehended. However, the remaining four persons who were in Alto Car were apprehended by them. He apprehended Nitin Wadhwa and from his search, nothing was recovered. HC Omveer apprehended the person who was sitting beside the driver and on inquiry, he revealed his name as Sachin @ Sonu and at that time, there was plaster on one of his legs and nothing was recovered from his search also. The person who was sitting rear left side of the car was apprehended by Ct. Ajay who later on revealed his name as Suresh and from his search, one loaded katta was recovered and one another live cartridge was also recovered from the right pocket of his wearing pant and the fourth person, who was sitting behind the driver seat was SC No. 1894/2016 FIR No. 202/2008 State v. Nitin Wadhwa & Ors. Pages 11 of 39 apprehended by HC Sant Raj and during inquiry, he revealed his name as Lakhvinder Singh @ Lucky and from his search, one loaded katta from his right side dub of his wearing pant was recovered and one cartridge was also recovered from right pocket of his wearing pant. He measured the recovered kattas and cartridges and prepared sketches of recovered kattas and cartridges Ex.PW1/A recovered from accused Suresh and from accused Lakhvinder bearing his signatures at point A. Both the kattas and cartridges were converted into two separate pullandas, duly sealed with the seal of RKV and were given serial no.1 and 2 and seized vide seizure memos Ex.PW1/C and Ex.PW1/D. He also filled up the FSL form. Accused persons failed to produce original document of motorcycle as well as the Alto Car and during interrogation, both the said vehicles were found to be stolen. The Alto Car was stolen from the jurisdiction of PS Link road, Ghaziabad and at that time, accused persons were using fake number plate on the said car. He seized the number plates of said vehicle vide memo Ex.PW1/E and also seized the car along with its keys vide memo Ex.PW1/F. The motorcycle made Bajaj Platinum along with its key was found to be stolen from the jurisdiction of PS Najafgarh and was seized vide memo Ex.PW1/G. The seal after use was handed over to HC Sant Raj. On inquiry from accused persons, they revealed that accused Sachin who had plaster on his leg had accompanied them so that police shall not suspect upon them. He prepared rukka Ex.PW1/H and handed over the same to Ct. Ajay for registration of FIR. He also SC No. 1894/2016 FIR No. 202/2008 State v. Nitin Wadhwa & Ors. Pages 12 of 39 gave information to their office and requested the DO to hand over further investigation to any other officer. From the office, SI Sharad Kohli came at the spot and prepared the site plan of the spot at his instance. He handed over all the prepared documents, sealed pullandas and custody of accused persons to him. Meanwhile, Ct. Ajay also came with copy of FIR and rukka and the same was handed over to SI Sharad Kohli.
During his testimony, PW1 identified the case properties i.e. katta Ex.PW1/P1 and cartridges Ex.PW1/P2 (collectively) recovered from accused Suresh and katta Ex.PW1/P3 and cartridges Ex.PW1/P4 (collectively) recovered from the possession of accused Lakhvinder @ Lucky. He also identified the fake number plates Ex.PW1/P5 which were seized from the Alto Car. The photographs of the car were marked as Mark X and Mark X1.
He was duly cross examined by Ld. Counsel for the accused. 3.5 PW13 Inspector Sharat Kohli deposed that on 19.06.2018 he was posted as Sub Inspector at SOS Crime Branch, Sunlight Colony, Delhi and on that day at about 9.15 pm, he was informed by the duty officer SOS, Crime Branch that SI Rajender Singh along with his team members have apprehended some criminals in the parking area near Budha Stupa, Millenium Park and he asked him to reach at the spot. He reached there at about 10.00 pm and met SI Rajinder Singh, who apprised him that on a specific information he along with team members of SOS have apprehended four criminals who were in SC No. 1894/2016 FIR No. 202/2008 State v. Nitin Wadhwa & Ors. Pages 13 of 39 possession of some illegal arms and stolen vehicles. He further told him that he had sent rukka through Ct. Ajay for registration of FIR of PS H. N. Din. Thereafter, SI Rajender Singh also handed over four persons namely Nitin Wadhwa, Lakhvinder Singh (earlier declared PO, now arrested), Sachin and Suresh along with copy of rukka, two seizure memos of weapons along with two sealed pullandas sealed with the seal of RKV, two sketches of pistols, one alto car without number plate with seizure memo, one platina motorcycle without number plate with seizure memo and he also gave him one pullanda containing two number plates of a car bearing No. DL 6CE 2935 stated to have been seized from the recovered Alto car vide seizure memo. SI Rajender also gave FSL form. He interrogated all above mentioned accused persons and at about 11.30 pm, Ct. Ajay came to the spot and gave him copy of FIR along with the original rukka. In the meantime, he prepared the site plan Ex.PW13/A at the instance of SI Rajender Singh.
During interrogation, it was revealed by accused Lakhvinder Singh (since PO, now arrested) that he was wearing a gold chain snatched from the area of PS Dwarka and he seized the same, converted it into a pullanda and sealed the same with the seal of SK vide seizure memo Ex.PW13/B. He also seized one mobile phone make Sony Erricson recovered from the possession of accused Sachin, converted it into a pullanda and sealed it with the seal of SK. He arrested all the above mentioned accused persons namely Nitin SC No. 1894/2016 FIR No. 202/2008 State v. Nitin Wadhwa & Ors. Pages 14 of 39 Wadhwa, Lakhvinder Singh, Suresh and Sachin on the same day i.e. on 19.05.2008 and conducted their personal search. Thereafter, he along with all the above said accused persons as well as case property and other police officials went to PS H. N. Din and deposited the case property in the malkhana of PS H. N. Din. The medical examination of all the above said accused was got conducted and thereafter they reached at their office at SOS Crime Branch, Sunlight Colony.
On 20.06.2008 he recorded the disclosure statement of above said accused persons and at the instance of accused Sachin, they got recovered one motorcycle bearing no. DL 4SBJ 3571 from his own house situated in Goyala Dairy, Najafgarh and same was seized vide seizure memo Ex.PW13/C. At the instance of accused Nitin Wadhwa, he recovered one Opel Astra Car of black colour bearing registration no. DL 9CA 2402 from the area of sector 4, Vaishali and he disclosed him that this was a fake number plate and the original number was ......1133. He seized the same. During investigation, he came to know that the said car was stolen from the area of PS Link Road and FIR in this regard was already registered there. Thereafter, they returned to PS H. N. Din, deposited the above mentioned case property to the malkhana of said police station and thereafter they went to their office of SOS, Sunlight Colony.
He gave the information regarding the recovery of above mentioned vehicles to the respective police stations and they all got transferred the said vehicles to their respective police stations.
SC No. 1894/2016FIR No. 202/2008 State v. Nitin Wadhwa & Ors. Pages 15 of 39 During investigation, they came to know that the above mentioned Bajaj Platina motorcycle, recovered without number plate on 19.06.2008 from the place of occurrence i.e. Millennium Park was stolen from the area of PS Najafgarh and accused Jaiveer had come on said motorcycle on 19.06.2008 to meet other accused persons.
On 02.07.2008 at 05.15 pm, he apprehended accused Jaibir from village Dinpur, Delhi and prepared his arrest memo, personal search memo and disclosure statement.
On 16.07.2008 the two recovered country made pistols were sent to FSL Rohini for their examination and thereafter, he prepared the charge-sheet and filed the same in the concerned court.
During testimony, PW19 identified all the accused present in the court and stated that he can also identify the accused Lakhvinder (who is PO, now arrested) if shown to him.
PW13 was duly cross examined by Ld. Counsels for accused. 3.6 PW16 ASI Ravi Prakash deposed that on 08.09.2022 he along with HC Rajesh had gone to Najafgarh to execute the process u/s 82 CrPC against the accused Lakhvinder @ Lakki. He had already gone to SEM court and from there itself, he had gone to execute the process, so no departure entry was made in the police station regarding his departure for process u/s 82 CrPC. He reached at the address of accused Lakhvinder i.e. at Goyala Dairy. However, accused was not found at the given address. Then he collected the public persons and pasted the process at the pole on the chowk of the SC No. 1894/2016 FIR No. 202/2008 State v. Nitin Wadhwa & Ors. Pages 16 of 39 area. He made the pronouncement regarding the process and apprised the public persons regarding the process. The photographs of such pasting was taken. The copy of the process was also pasted on the notice board of the court. He prepared his report regarding the execution of process. His report along with annexure C performa as per criminal MC No.5382/2013 regarding the execution of process u/s 82 CrPC is Ex.CW2/A (collectively) and the print out of photographs regarding such pasting is Ex.CW2/B. The process u/s 82 CrPC is Ex.PW16/A. PW16 was duly cross examined by Ld. Legal Aid Counsel for accused Lakhvinder @ Lakki.
3.7 PW18 HC Shayam Singh deposed that on 19.10.2018 he was posted at PS Hazrat Nizamuddin as constable and on that day he handed over the process u/s 82 CrPC against the accused Lakhvinder Singh @ Lakki for execution by the SHO.
On 26.10.2018 he went for the execution of process at the address of the accused at Goyala Dairy, Najafgarh, Delhi but he was not found therein. He made the public announcement regarding the process and neighbours informed him that accused was not living there. Thereafter, he affixed the process u/s 82 CrPC at the door outside the house.
He also visited another house no. 98 at Village Khungai, Jhajjar, Haryana and made inquiries about the accused but he was not found there. He also made public announcement regarding the process.
SC No. 1894/2016FIR No. 202/2008 State v. Nitin Wadhwa & Ors. Pages 17 of 39 Thereafter, he returned to the police station. He also affixed the process u/s 82 CrPC at the notice board outside the Court and filed a report regarding execution process u/s 82 CrPC against the accused Lakhvinder Singh @ Lakki Ex.CW2/A. PW18 was duly cross examined by Ld. Legal Aid Counsel for the accused Lakhvinder Singh @ Lakki.
4. EXAMINATION OF ACCUSED U/S 313 CrPC 4.1 After conclusion of prosecution evidence, accused Lakhvinder @ Lakki was questioned u/s 313 CrPC regarding incriminating circumstances appearing against him.
4.2 Accused stated that he was lifted from Najafgarh where he used to reside and was kept in a place near ashram for 05-06 days. 07-08 other boys were also caught by the police but some of them were let off after they gave money to the police. Police also offered him to release him on payment of Rs. 1 lakh. However, they did not let him make a phone call. Accused stated that he neither knew Nitin Wadhwa nor Sachin nor Suresh and he knew only Jaiveer. Accused used to work at verification department of Tata Indicom where Jaiveer used to come as he was working as DSA for Tata Indicom.
Regarding process u/s 82 CrPC, accused stated that no policeman came and made any proclamation.
Accused stated that he himself surrendered at the instance of crime branch officials.
SC No. 1894/2016FIR No. 202/2008 State v. Nitin Wadhwa & Ors. Pages 18 of 39
5. DEFENCE EVIDENCE 5.1 No defence evidence was led by the accused Lakhvinder Singh @ Lucky and the matter was listed for final arguments. However, during their trial, the other co-accused persons i.e. Suresh and Sachin had led defence evidence. Since, the said defence is relevant for the whole case, the same is being discussed here.
5.2 Accused Suresh had examined one defence witness whereas accused Sachin had examined two defence witnesses. 5.3 DW1 Mahesh (examined by accused Suresh) deposed that on 17.06.2008 at about 6.00/7.00 pm, he along with his brother Suresh was working at their Dhaba near Parotha Chowki, Sonepat and at that time, two vehicles i.e. one car and one gypsy came at their dhaba and they purchased some cold drinks, snacks and cigarettes. Those persons told him that they were police officials and one of those persons, had shown him his identity card. They were in civil clothes. After that, those persons asked him about Suresh and he pointed out towards his brother and those persons took his brother Suresh in their vehicle stating that some interrogation was to be done from him. He further stated that those persons asked him to prepare food and told him that they will come back within half an hour and instructed him not to call anyone. Thereafter, for the next two days, he could not come to know anything about his brother and after two days, his father received a SC No. 1894/2016 FIR No. 202/2008 State v. Nitin Wadhwa & Ors. Pages 19 of 39 telephonic call and the caller asked his father to come to PS Hazrat Nizamuddin. His father reached at said police station and found that present case had been falsely planted on his brother Suresh.
He was duly cross examined by Ld. Addl. Public Prosecutor for the State.
5.4 DW-2 (wrongly numbered as DW1) Dr. S. K. Gaur, was examined by accused Sachin. He deposed that he was running the Orthoplus hospital at Najafgarh, Delhi since 1995. On 09.06.2008 patient Sachin (accused), 20 years old male came to him with history of road side accident and he had fractured his right leg and was admitted for a period from 09.06.2008 to 13.06.2008 and during his stay in his hospital, he was operated for fracture both bone leg right side. The discharge card of said patient is Ex.D-1 (colly).
He was cross examined nil by Ld. Addl. PP for the State. 5.5 DW-3 Sachin Kumar, i.e. accused himself deposed that on 09.06.2008 at about 3.00 pm, he had met with a road accident. He deposed that he was going on foot from his home to their plot on Goyla Dinpur Road where he was hit by a Swift Dzire Car of white colour and the vehicle owner fled away after hitting him as a result of which he sustained injuries and his right leg got fractured. He became unconscious and when he regained his consciousness on the same date he found himself at Orthoplus hospital at Najafgarh, Delhi. He do not remember the time when he regained consciousness. He was treated in the said hospital and the rod was implanted in his right foot. He got SC No. 1894/2016 FIR No. 202/2008 State v. Nitin Wadhwa & Ors. Pages 20 of 39 discharged from the said hospital on 13.06.2008. His original discharge summary issued by Dr. S. K. Gaur is Ex.DW3/A. He was advised bed rest as his leg was plastered due to the accident/surgery.
He remained at his house due to said injury and on 19.06.2008 in the morning hours, he was picked up from his house at Goyla Khurd by more than four persons in civil dress stating that they had to make inquiry from him. He do not know where he was taken by the said persons. His father even made call on number 100 on the same date. His father had passed away on 18.06.2014. The death certificate regarding the same is Ex.DW3/B. His father filed an RTI to obtain the information regarding the 100 number call made on 19.06.2008. The copy of fee receipt for the RTI and the RTI reply/Form-I regarding the PCR call is collectively Mark D1.
He further deposed that even after arrest in the present case, he was treated while being in judicial custody at Deen Dayal Upadhyay hospital. His treatment document dated 20.10.2009 E. No. DDUH09/206415 of said hospital is Ex.DW3/C. His treatment document dated 26.10.2009 with registration no. 191998 at said hospital is Ex.DW3/D. His X-ray plate/film dated 20.10.2009 of Deen Dayal Upadhyay Hospital is Ex.D1 and same shows that rod was implanted with screws in his right leg.
He was duly cross examined by Ld. Addl. PP for the State.
SC No. 1894/2016FIR No. 202/2008 State v. Nitin Wadhwa & Ors. Pages 21 of 39
6. ARGUMENTS 6.1 Thereafter, arguments of the prosecution and Ld. Counsel for the accused were heard. Ld. Addl. PP for the State has submitted that prosecution witnesses have deposed as per the charge-sheet. Further, their testimonies are duly supported by the recoveries of stolen vehicles and even illegal weapons. The accused along with co-accused was arrested from the spot. Accordingly, the main charges have been duly proved against the accused. Even the supplementary charges u/s 174A IPC have also been proved as process server have duly executed the process as per provisions of Section 82 CrPC and the accused failed to enter appearance despite such proclamation. Accordingly, accused is liable to be convicted for all the charges. 6.2 On the other hand, Counsel for accused Lakhvinder Singh @ Lakki has submitted that there are number of deficienes in the case of prosecution regarding the main charges. There is no public witness to any of the proceedings despite the fact that accused were allegedly arrested from a public place. One of the accused Jaiveer allegedly escaped despite the present of police team at the alleged spot. The prosecution has failed to show any prior connection between the accused persons. It is argued that even the presence of 5 accused at the alleged spot together has not been duly proved and same is a sine qua non for the offence related to dacoity. It is submitted that the co- accused Sachin was admittedly in a injured condition and thus, there is SC No. 1894/2016 FIR No. 202/2008 State v. Nitin Wadhwa & Ors. Pages 22 of 39 no remote possibility of such person being part of any dacoity/its preparation. Rather, defence evidence have been led by the said accused during his trial that he was lifted from his house on 19.06.2008 and even his father made a call on number 100 on the same date. There is no evidence to the effect that any of the accused persons talked to each other and talked about any preparation about committing any dacoity. It is submitted that the other accused have already been acquitted on the aforesaid lapses and the accused Lakhvider @ Lucky is also entitled to benefit of doubt. In regard to offences u/s 174A IPC, it is argued that the process servers had not filed any departure entry regarding their visit to the address of accused for execution of the process. There is no statement of any public person showing that the process servers even visited the address of accused. Accordingly, the prosecution has failed to prove the offence u/s 174A IPC against the accused.
7. POINTS FOR DETERMINATION 7.1 I have considered the arguments of the parties and have perused the record.
7.2 The relevant provisions applicable in present case are reproduced herewith:-
Section 402 IPC provides "Whoever, at any time after the passing of this Act, shall be one of five or more persons assembled for the purpose of committing dacoity, shall be punished with rigorous imprisonment for a term which may extend to seven years, and shall SC No. 1894/2016 FIR No. 202/2008 State v. Nitin Wadhwa & Ors. Pages 23 of 39 also be liable to fine."
Section 399 IPC provides "Whoever makes, any preparation for committing dacoity, shall be punished with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine."
Section 474 IPC provides "Whoever has in his possession any document or electronic record, knowing the same to be forged and intending that the same shall fraudulently or dishonestly be used as genuine, shall, if the document or electronic record is one of the description mentioned in section 466 of this Code, be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine; and if the document is one of the description mentioned in section 467, shall be punished with 2 imprisonment for life, or with imprisonment of either description, for a term which may extend to seven years, and shall also be liable to fine."
Section 25 (1B)(a) Arms Act, 1959 provides that "Whoever acquires, has in his possession or carries any fire arms or ammunition in contravention of section 3 shall be punishable with imprisonment with a term which shall not be less than one year but which may extend to three years and shall also be liable to fine."
Section 34 IPC provides "When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone."
Section 174A IPC provides that "Whoever fails to appear at the specified place and the specified time as required by a proclamation published under sub-section (1) of section 82 of the Code of Criminal Procedure, 1973 shall be punished with imprisonment for a term which may extend to three years or with fine or with both, and where SC No. 1894/2016 FIR No. 202/2008 State v. Nitin Wadhwa & Ors. Pages 24 of 39 a declaration has been made under sub-section (4) of that section pronouncing him as a proclaimed offender, he shall be punished with imprisonment for a term which may extend to seven years and shall also be liable to fine."
Section 82 (1) CrPC provides that "If any Court has reason to believe (whether after taking evidence or not) that any person against whom a warrant has been issued by it has absconded or is concealing himself so that such warrant cannot be executed, such Court may publish a written proclamation requiring him to appear at a specified place and at a specified time not less than thirty days from the date of publishing such proclamation."
Section 82 (2) CrPC provides that "The proclamation shall be published as follows :- (i) (a) it shall be publicly read in some conspicuous place of the town or village in which such person ordinarily resides;
(b) it shall be affixed to some conspicuous part of the house or homestead in which such person ordinarily resides or to some conspicuous place of such town or village;
(c) a copy thereof shall be affixed to some conspicuous part of the court-house;
(ii) the Court may also, if it thinks fit, direct a copy of the proclamation to be published in a daily newspaper circulating in the place in which such person ordinarily resides."
7.3 From the arguments of the parties and the provisions of law following points for determination arise:-
1. Whether the accused persons had assembled at the given time and place?;
2. In case the first point is proved in affirmative, whether they had assembled for the purpose of committing dacoity?;SC No. 1894/2016
FIR No. 202/2008 State v. Nitin Wadhwa & Ors. Pages 25 of 39
3. Whether accused persons had made preparation for committing dacoity?;
4. Whether the accused was found in possession of the alleged vehicle with fake number plate?;
5 Whether the accused was found in possession of any illegal fire arm?;
6. Whether the process u/s 82 CrPC was duly executed against the accused on 26.10.2018 and accused failed/neglected to enter appearance in pursuance thereof?;
7. Whether the process u/s 82 CrPC was duly executed against the accused on 08.09.2022 and accused failed/neglected to enter appearance in pursuance thereof? and
8. Whether accused is liable to be convicted for the offences charged against him?
7.4 Now, we shall proceed to appreciate the evidence so to decide the said points for determination.
8. APPRECIATION OF EVIDENCE AND APPLICATION OF LAW
8.1 It is to be noted that there is no public witness to corroborate the case of prosecution. Though it cannot be said that police witnesses are not reliable witnesses but the absence of the public witnesses has to be SC No. 1894/2016 FIR No. 202/2008 State v. Nitin Wadhwa & Ors. Pages 26 of 39 reasonably explained and further it shall be proved that due procedure was followed by the police authorities and the testimonies of the police authorities are in consonance with each other, circumstantial facts and the documentary evidence of the case. Now, we shall proceed further to examine the same.
8.2 As per Rule 22.49 of Punjab Police Rules (applicable in Delhi also), the following matters, amongst others, shall be entered in Register no.II. "The hour of arrival and departure on duty at or from a police station of all enrolled police officers of whatever rank, whether posted at police station or elsewhere, with a statement of the nature of their duty. The entry shall be made immediately on arrival or prior to the departure of the officer concerned and shall be attested by the latter personally by signature or seal."
In the present case though the prosecution has filed one DD entry regarding receiving of the secret information, however, there is no DD entry showing the departure of raiding party with details of the members thereof, purpose of the formation of raiding party, mode of conveyance, details of weapons, if any, carried by them etc. It is not the case that police officials/raiding team were in a tearing hurry since the secret information was received at 04.30 pm and the suspected gang members were to arrive at 07.30 pm and the place of their assembly was within few kilometers from the office of raiding party. Accordingly, a doubt is created as to whether any such raiding party was formed and any raid was conducted as claimed by them.
SC No. 1894/2016FIR No. 202/2008 State v. Nitin Wadhwa & Ors. Pages 27 of 39 8.3 As per PW1, 5-6 public persons were asked to join the investigation but none agreed and due to lack of time, they did not serve any notice to them. However, admittedly they had reached the spot at 06.40 pm and the Alto car of accused persons reached at the alleged spot around 07.40 pm. Accordingly, there was about one hour with the police officials to make efforts and join a public witness in the proceedings but despite the same, they failed to secure a single public witness. The said fact is relevant not only because of the ample time available with the police at the spot but also due to the location of the spot which was on Ring Road and at the entrance of a huge park frequented by visitors. Further, the time was not so late that public persons were not available. More so, PW1 has failed to disclose name of a single public person who refused to join the proceedings on such request. It is to be noted that in the complaint it has been mentioned that efforts to join the public witness was made twice i.e. firstly when the raiding party reached around 06.40 pm at the spot and secondly at 08.00 pm when four accused persons were apprehended and public persons gathered at the spot. However, interestingly in his entire examination in chief, PW1 has not mentioned any efforts about such second attempt to join the public persons in the police proceedings. 8.4 Even the testimonies of police witnesses are not in consonance with each other. The leader of the raiding party i.e. PW1 has deposed that they had gone in two cars and a motorcycle. In regard to the occupants in his car, he has deposed in his cross examination that "I SC No. 1894/2016 FIR No. 202/2008 State v. Nitin Wadhwa & Ors. Pages 28 of 39 along with HC Sant Raj, Ct. Sushil and the secret informer were in the Wagon-R car and the rest of the teams members were in the Santro car." However, PW5 HC Sant Raj has deposed that "the informer was in another car and not in the car in which I was sitting". Therefore, there is apparent contradiction as to whether informer was in which car and a doubt is created whether any informer was with them at all. This doubt is compounded by the fact that during his cross examination, PW1 failed to tell even the type of clothes worn by the secret informer. Further, in regard to the cars used by the raiding party, PW1 has initially deposed in his cross examination that "I do not remember to whom the said cars belong. These were arranged by Inspector Incharge of our unit." However, during his further cross examination, he has deposed "I cannot tell the number of cars. I do not remember now to whom the cars belong. However, the cars were of our staff persons." Thus, on one hand PW1 has deposed the cars being arranged by the Inspector In-charge but on other hand has stated that same belong to the staff member only. Adding a further twist to the circumstances, PW7 Ct. Ajay has deposed in his cross examination that said cars were of SI Rajender and SI Ravinder. Therefore, PW7 has stated one of the cars was that of PW1 himself. It is surprising because if PW1 would have used his own car in the raid he would not have deposed that the car was of some staff member but he did not know of whom. Thus, serious doubt is created regarding the mode of conveyance used by the raiding party to conduct the raid. Even the SC No. 1894/2016 FIR No. 202/2008 State v. Nitin Wadhwa & Ors. Pages 29 of 39 location of the car of the raiding party at the spot has been described differently by different witnesses. During his cross examination, PW1 has deposed that "the crow flight distance of our car from the car of the accused was about 4-5 feet". On the other hand, PW5 HC Sant Raj has deposed "the distance between our cars and the alto car of the accused was about 50-60 yards". Thus, from the aforesaid contradictions, further doubts have cropped up regarding the raid itself.
8.5 There are contradictions inter se the examination in chief and cross examination of the main witness i.e. PW1. In his examination in chief, he has deposed that ".........after about ten minutes one motorcycle make Bajaj Platinum without number plate came there from the same direction, and the person who was driving the said motorcycle was not wearing the helmet and he also parked his motorcycle near the alto car and the secret informer identified motorcyclist as Jaiveer". However, in his cross examination, he has deposed "the secret informer and HC Sant Raj were standing near the gate of the park......... When HC Sant Raj had given indication after the arrival of a motorcyclist, we had apprehended the accused persons. I did not know that motorcyclist was accused Jaiveer." Accordingly, in his examination, PW1 has implied that secret informer had identified the motorcyclist as Jaibir to him whereas in his cross examination, he has implied the secret informer has told said fact to HC Sant Raj and he did not know that the motorcyclist was accused SC No. 1894/2016 FIR No. 202/2008 State v. Nitin Wadhwa & Ors. Pages 30 of 39 Jaibir. Thus, testimony of PW1 is wavering.
8.6 As per prosecution, accused Jaibir arrived at the spot on a motorcycle but when raiding team tried to apprehend the accused persons, he managed to flee from there. It is to be noted that as per PW5 HC Sant Raj the other four accused remained seated in the car while accused Jaibir ran away from there. Thus, to apprehend the said four accused, the police officers had to just block their car and keep them confined in the car itself and there was no requirement of any chase. Moreover, the raiding party comprised of eight police officials but still it is surprising that they failed to apprehend one person who was outside the car. It cannot ignored that said accused did not escape on his motorcycle so that his chase would have been difficult. Rather the case of prosecution is that he went on foot and was chased by SI Ravinder Kumar only. However, said SI Ravinder has not been examined by the prosecution and has not even been cited as a witness. Hence, the first hand evidence regarding efforts to apprehend the accused Jaibir have not been brought forth before the court. As per illustration (g) of section 114 of Indian Evidence Act 1872, "the court may presume that evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it". Thus, non examination of SI Ravinder goes against the case of prosecution. Even in the site plan, it is nowhere shown as to where accused Jaibir parked his motorcycle and in which direction he ran away from the spot. Thus, the circumstances of the alleged presence SC No. 1894/2016 FIR No. 202/2008 State v. Nitin Wadhwa & Ors. Pages 31 of 39 and even the alleged escape of accused Jaibir from the spot are doubtful.
8.7 During his cross examination, PW5 HC Sant Raj deposed "I cannot tell the length, width and other measurements of the katta recovered from possession of accused Lakhvinder. I do not remember any specific mark of identification on the katta. I also cannot tell the length, width and other measurement of the katta recovered from accused Suresh." Thus, the raiding party member have failed to give the description of the arms/ammunition allegedly recovered from the accused persons.
8.8 Even circumstantial facts of the case are against the probability of the prosecution story. It is admitted case of prosecution that one of the accused was having a plaster on his leg when they were apprehended. The case of prosecution is that said accused namely Sachin was present with them so that nobody suspects them, however, it is nowhere stated that the accused persons intended to commit a dacoity at a place where police presence/checking was possible. Rather, prosecution witnesses have not even specified as to where accused persons intended to commit the dacoity. More so, it is not the case of prosecution that said accused was having a plaster without any injury i.e. the plaster was fake. The accused Sachin had led evidence to the effect that he was admitted in Orthoplus hospital with history of road accident and a fractured right leg. He was admitted therein for a period from 09.06.2008 to 13.06.2008 and was operated during his SC No. 1894/2016 FIR No. 202/2008 State v. Nitin Wadhwa & Ors. Pages 32 of 39 stay for fracture of both bones on the right leg side. The present incident is allegedly of 19.06.2008 i.e. six days after the discharge of the accused from the hospital. Thus, apparently accused was in such a condition that he would not have been able to move on his own with a recently operated and plastered leg. Accordingly, such an accomplice would have been a liability for the other accused in case they intended to commit a dacoity with him along their side. Accordingly, said facts further create doubt in the prosecution story. Moreover, said accused has led secondary evidence regarding a call made by his father on 100 number on 19.06.2008. He has proved that his father had passed away by proving his death certificate. Though he has failed to produce the original record of the 100 number call but in his cross examination, he has even deposed that the court may get the record of said call checked on its own. Thus, from the circumstances, it does appear that a call was made by the father of accused Sachin on 19.06.2008. The copy of the record filed by him marked D1 appears to be a genuine copy and records the fact that his father Mr. Ram Niwas made a call on 19.06.2008 stating that about 09.00/10.00 am some persons came in gypsy and lifted his son and took him to unknown place. Thus, the defence taken by the accused Sachin appears to be a probable defence and even aids the other accused who were allegedly apprehended with said accused.
8.9 Prosecution has also alleged that the alto car used by accused Nitin Wadhwa was falsely reported to be stolen and he got it stolen so SC No. 1894/2016 FIR No. 202/2008 State v. Nitin Wadhwa & Ors. Pages 33 of 39 as he did not have to pay the car loan. However, prosecution has not proved or even produced a single document to show any car loan in the name of accused or his family for the car in question. Thus, prosecution has not only failed to lead direct credible evidence against the accused regarding the possession of the stolen car but has even failed to lead indirect evidence regarding the motive with the owner of the car to have a false number plate on the same.
8.10 Even the technical requirement for the alleged offences u/s 402 IPC and 399 IPC are missing in the present case. As per the case of prosecution, the accused persons had "assembled" for the purpose of committing dacoity and are thus liable to be punished u/s 402 IPC. However, for the purpose of assembling, mere presence at one place is not sufficient and some further overt action on the part of such persons have to be proved showing that they were part of same assembly. Said requirement is more prominent in cases where such presence is not at an isolated place but at a public place. Moreover, it is not the case that all of the five accused have arrived together in the same vehicle or at the same time. One of the accused is stated to have arrived after the arrival of four accused in the car. Thus, for the purpose of assembling, prosecution ought to prove presence of such persons as a group or exchange of any conversation or any gestures between the persons indicating that they were a group. However, in his entire examination PW1 has not stated that on his arrival, Jaibir went into the alto car or otherwise interacted with the occupants of the SC No. 1894/2016 FIR No. 202/2008 State v. Nitin Wadhwa & Ors. Pages 34 of 39 car. He has deposed "he also parked his motorcycle near the alto car and the secret informer identified the motorcyclist as Jaiveer, at my direction raiding team tried to apprehend both the said persons, however, Jaiveer managed to flee......". Even PW7 has deposed "At about 07.40 pm, an alto car came and stopped at Millenium park. After about ten minutes, one motorcycle red colour Platina without number plate came there. In the car, there were four persons and one boy came on motorcycle. Informer pointed towards the car and motorcycle. The motorcyclist seeing the raiding party, ran away leaving his motorcycle at the spot". Even PW5 HC Sant Raj has deposed in his examination in chief in the same manner indicating immediate action by the raiding party on the arrival of the motorcyclist. Thus, apparently there was no assembly per se of five or more persons as required for the offence of dacoity and the offences related to dacoity. Further, besides the assembly it has to be proved that purpose of such assembly was to commit dacoity. It has been held by Hon'ble High Court of Delhi in Kali Charan @ Bachhu & Ors. v. State (Delhi Administration) 1984 Chandigarh Criminal Cases 520 (HC) that mere presence of some persons with arms at a place can not necessarily lead to inference that they had designs to commit dacoity anywhere. At the most they can be charged for being in possession of arms. Likewise, for offence u/s 399 IPC, prosecution has to prove some overt act to show preparation for committing dacoity. Hon'ble High Court of Delhi has made similar observations in Yograj v. State SC No. 1894/2016 FIR No. 202/2008 State v. Nitin Wadhwa & Ors. Pages 35 of 39 1985 SCC online Del 278. In para 9 of said judgment it has been observed that "the ingredients of section 399, however, in my view are not proved. It is the requirement of that section that accused should have done some act to get ready for committing dacoity. In this case, they were arrested at the point of assembly. I hold that offence u/s 399 Penal Code 1860 is not made out". Though Hon'ble High Court of Delhi convicted the accused u/s 402 IPC in the said case but there was evidence in said case to the effect that the witnesses had overheard the talk amongst the accused regarding their intention to commit a dacoity. However, in the present case, there is not an iota of evidence regarding such conversation between accused persons expressing such intention. Therefore, even if the case of prosecution is admitted on its face still the ingredients of section 399 IPC as well as 402 IPC are not made out. As far as the offence regarding possession of the firearm is concerned, as discussed in the preceding paras, the raid through which said vehicle/arms were recovered is itself doubtful.
8.11 Thus, there is no sufficient evidence regarding the main offences charged against the accused. Let us proceed further regarding the evidence qua the offence u/s 174 A IPC. The prosecution has examined the process server PW18 HC Shyam Singh regarding the execution of process u/s 82 CrPC at the Najafgarh as well as Jhajjar address of accused. He has exhibited his report regarding the execution of the process vide Ex.CW1/1. However, no DD entry has SC No. 1894/2016 FIR No. 202/2008 State v. Nitin Wadhwa & Ors. Pages 36 of 39 been filed regarding the departure of said police official from the PS Hazrat Nizamuddin to the said locations on the given date. Moreover, no DD entry has been filed regarding arrival of said process server at the local police station at Jhajjar. There is no statement of any local person in the presence of whom the announcement/publication was made regarding the process. There is no mention of even any person by name in the report, in whose presence the announcement was made or the process was pasted. There is no photograph/video regarding pasting of the process or the announcement about the process. There is no DD entry regarding the arrival of the process server on his return to PS Hazrat Nizamuddin wherein he had mentioned about his visits to the said two locations. Thus, there is no definite proof except the oral assertion of PW18 that the process was executed on 26.10.2018 as claimed. Since, the compliance of process u/s 82 CrPC is not only procedural but is also time sensitive i.e. same has to be executed at least 30 days prior to the date of appearance i.e. 27.11.2018, the aforesaid lapses/lack of evidence goes to the root of matter. Accordingly, prosecution has failed to lead sufficient evidence regarding the due execution of the process u/s 82 CrPC against the accused on 26.10.2018.
8.12 PW16 ASI Ravi Prakash has deposed regarding the execution of the 2nd process u/s 82 CrPC against the accused. However, no DD entry has been filed regarding his departure from the police station for the said purpose on the given date of 08.09.2022. Though, PW16 has SC No. 1894/2016 FIR No. 202/2008 State v. Nitin Wadhwa & Ors. Pages 37 of 39 claimed that he had already gone to SEM Court and from there itself he went to execute the process, however, no DD entry has been proved even regarding any departure for SEM Court on the given date. Moreover, no DD entry regarding arrival of PW16 in the police station after execution of process, mentioning his activities of the day, have been proved. Though, PW16 has exhibited photographs regarding the pasting, however, the photographs have been filed without any negatives. Rather, the same are printouts and no certificate u/s 65B of Indian Evidence Act, 1872 was filed regarding the same. Further, there is no statement of any public person recorded by the process server regarding the execution of the process. Rather, in his cross- examination, PW16 has deposed that one lady was found at the address. However, no such fact has been mentioned in his report Ex.CW2/A collectively. Further, two addresses were mentioned in the process Ex.PW16/A i.e. D-167, Qutub Vihar, Phase-I, Gola Dairy, Najafgarh, Delhi and the 2nd address was Pole-4, Dinpur Najafgarh, Delhi. However, the photographs regarding pasting of process u/s 82 CrPC i.e. Ex.CW2/B and Ex.PW16/B appear to be of the same location. Rather, no pasting of process appears in Ex.PW16/B and further, it is not clear in Ex.PW16/B regarding the location where the process was pasted. Moreover, in photograph Ex.PW16/B at the bottom there appears a partial date stamp i.e. 2022.10 thereby giving an impression that said photographs were taken in the month of October 2022 whereas PW16 has deposed that he has executed the SC No. 1894/2016 FIR No. 202/2008 State v. Nitin Wadhwa & Ors. Pages 38 of 39 process in September 2022. Since the date of appearance as per the process was 14.10.2022, therefore, the publication of the process was delayed if it was executed on any day of October 2022. As mentioned earlier, the execution of process u/s 82 CrPC is not only procedural but is also time sensitive. Therefore, it is doubtful that whether the said process was duly executed.
9. CONCLUSION 9.1 Accordingly, in view of aforesaid discussion, the case of prosecution is highly doubtful and the prosecution has failed to prove any of the points for determination in affirmative against the accused persons. Accordingly, accused Lakhvinder Singh @ Lucky is acquitted from all the offences charged against him. (Announced in the Open Court on 14th March 2024) (Sachin Sangwan) Additional Sessions Judge (FTC-01) SE: Saket District Court: New Delhi SC No. 1894/2016 FIR No. 202/2008 State v. Nitin Wadhwa & Ors. Pages 39 of 39