Delhi District Court
State vs . Nitin Wadhwa & Ors. on 21 March, 2023
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 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 IPC & 25/24/29
Arms Act
c) Name of complainant : SI Rajender Singh
d) Name of accused no.1 : Nitin Wadhwa
his parentage s/o Sh.Krishan Lal Wadhwa,
local & permanent residence R/o: C-382A, Surya Nagar,
PS Link Road, Ghaziabad (UP)
Name of accused no.2 : Suresh Parkash
his parentage s/o Sh. Om Prakash
local & permanent residence R/o: Nai Basti,
Village Bindapur,
PS Sadar Sonepat (HR)
Name of accused no.3 : Jaibir
his parentage s/o Sh. Deep Chand,
local & permanent residence R/o: House No.148,
PS Najafgarh,
Delhi.
Name of accused no.4 : Sachin @ Sonu
his parentage s/o Sh. Ram Niwas
local & permanent residence R/o: Village Goila Khurd,
PS Najafgarh, Delhi.
Name of accused no.5 : Lakhvinder Singh @ Lakki (PO)
his parentage s/o Sh.Late Sh. Hari Singh
local & permanent residence R/o: H. No. 98, Village Khungai,
District Jhajjar, Haryana.
e) Plea of accused : Pleaded not guilty
FIR No. 202/2008 State v. Nitin Wadhwa & Ors. Pages 1/23
f) Final order : Accused no.1, 2, 3 and 4 acquitted of all
charges
Date of institution of case : 03.10.2013
Date on which case reserved
for judgment : 01.03.2023
Date of judgment : 21.03.2023
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 male 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 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 FIR No. 202/2008 State v. Nitin Wadhwa & Ors. Pages 2/23 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 did 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 also 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 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, the fifth accused Jaibir was also arrested. Recovered weapons were sent to FSL for expert opinion and while the same was awaited, chargesheet was filed against all five accused. 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. Hence, the present judgment is being passed only against the other four accused who have faced the complete trial.
FIR No. 202/2008 State v. Nitin Wadhwa & Ors. Pages 3/23 2. CHARGE 2.1 On the basis of the chargesheet, charge u/s 474/399/402/34 IPC was framed
against all the accused to which all of them pleaded not guilty and claimed trial. Charge u/s 25/54/49 Arms Act was framed against the accused Suresh Parkash and accused Lakhvinder Singh @ Lakki to which they pleaded not guilty and claimed trial. Accordingly, prosecution was directed to lead evidence in support of the chargesheet.
3. PROSECUTION EVIDENCE 3.1 In support of its case, prosecution has examined 13 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
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
FIR No. 202/2008 State v. Nitin Wadhwa & Ors. Pages 4/23
PW-13 Inspector Sharat Kohli IO of the case
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 (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 FIR No. 202/2008 State v. Nitin Wadhwa & Ors. Pages 5/23 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 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) 3.3 Though 13 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.
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 HC Dinesh Kumar 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 FIR No. 202/2008 State v. Nitin Wadhwa & Ors. Pages 6/23 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 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 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 FIR No. 202/2008 State v. Nitin Wadhwa & Ors. Pages 7/23 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 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 FIR No. 202/2008 State v. Nitin Wadhwa & Ors. Pages 8/23 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 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 (PO), 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) 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 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 FIR No. 202/2008 State v. Nitin Wadhwa & Ors. Pages 9/23 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.
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 chargesheet 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) if shown to him.
FIR No. 202/2008 State v. Nitin Wadhwa & Ors. Pages 10/23 PW13 was duly cross examined by Ld. Counsels for accused.
4. EXAMINATION OF ACCUSED U/S 313 CrPC 4.1 After conclusion of prosecution evidence the accused no.1 to 4 were questioned u/s 313 CrPC regarding incriminating circumstances appearing against them. All of them stated that they are innocent and have been falsely implicated in the present case.
4.2 Accused Nitin Wadhwa stated that no mobile phone was recovered from him. He stated that police officials took his signatures on blank papers. He further stated that the alto car in the said case was of his relative which was, however, being used by his father. Said car was got stolen and his father had made a complaint regarding missing of the same. Later on, the said car was found by the police officials whereby the police called his father to take away the said Alto Car and on his father's instructions, he went to the police station for taking the Alto Car where he saw that the vital parts such as tyres, seats, covers, stereo and other accessories were missing from the said car. He further stated that due to the said reason, he had an argument with the police officials for missing of said accessories and due to such arguments, police officials falsely implicated him in the present case. Prior to this case, he did not know any of the accused and during that period, he was planning to proceed his further studies abroad and related documents regarding his studies are on the case file.
4.3 Accused Suresh stated that he is innocent as he had been lifted by the police from his house at Sonepat in two cars. He further stated that they were in uniform and some of them were in plain clothes and they had brought him to SOS Crime Branch Office. He claimed that he had been falsely implicated in the present case. 4.4 Accused Jaibir stated that he did not make any disclosure statement to the police. He further stated that he was innocent and police officials had called him at SOS Branch for some inquiry and had falsely implicated him in the present case. 4.5 Accused Sachin stated that he did not make any disclosure statement to the police. He further stated that he is innocent and 4-5 police officials had lifted him FIR No. 202/2008 State v. Nitin Wadhwa & Ors. Pages 11/23 from his house at 9.00/10.00 am on 19.06.2018 and had taken him to SOS Crime Branch office. He had been falsely implicated in the present case. His father even registered his missing report in this regard.
5. DEFENCE EVIDENCE 5.1 Only accused Suresh and Sachin chose to lead defence evidence. Accused Suresh examined one defence witness whereas accused Sachin examined two defence witnesses.
5.2 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 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. 5.3 DW-1 (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).
FIR No. 202/2008 State v. Nitin Wadhwa & Ors. Pages 12/23 He was cross examined nil by Ld. Addl. PP for the State.
5.4 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 Desire 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 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.
Thereafter, defence evidence was closed and matter was listed for final FIR No. 202/2008 State v. Nitin Wadhwa & Ors. Pages 13/23 arguments.
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 case of prosecution is duly supported by the testimony of prosecution witnesses. Further, their testimonies are supported by recovery of two stolen vehicles and two illegal weapons from the spot. All accused persons except one was arrested from the spot and even the escapee accused was arrested soon after the incident. He has submitted that though case of prosecution is based on evidence of police witnesses only but their testimony is credible even without support of any public witness. He has argued that the court shall convict the accused persons for the offences charged against them as prosecution has successfully proved its case against them. 6.2 On the other hand, Counsel for accused Jaibir has submitted that there is no public witness to the alleged offence and said accused was not even arrested from the place of alleged offence. He has submitted that it is surprising that accused Jaibir allegedly escaped on foot from the said spot despite the police raiding party comprising of various police officers. The Counsel for accused Nitin, Sachin and Suresh has argued that police has even failed to show that there is any previous connection between the accused persons or they were even known to each other since all of them were from diverse background and have no common connection. It has been argued that there is no public witness nor the presence of five accused at one place which is requirement for the offence of dacoity or preparation thereof. It is submitted that there are infirmities in the testimonies of the police witnesses and the present case is nothing but a planted case on the accused persons. It is argued that as per the secret information on the arrest of the accused persons various cases of bike/vehicle thefts and snatching were to be solved but there is no evidence that any such cases were solved on the arrest of accused persons. In regard to accused Sachin, it is submitted that said accused was in an injured condition with a plaster on his leg and there was no remote possibility that he could have been with other accused in FIR No. 202/2008 State v. Nitin Wadhwa & Ors. Pages 14/23 such condition. It is submitted that defence evidence have been led to this effect 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. It is submitted that 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 in the given circumstance the prosecution has miserably failed to prove its case beyond reasonable doubt.
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 391 IPC defines dacoity as "when five or more persons conjointly commit or attempt to commit a robbery, or where the whole number of persons conjointly committing or attempting to commit a robbery, and persons present and aiding such commission or attempt, amount to five or more, every person so committing, attempting or aiding, is said to commit dacoity"
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 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."
Section25 (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." 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?;
FIR No. 202/2008 State v. Nitin Wadhwa & Ors. Pages 15/23
2. In case the first point is proved in affirmative, whether they had assembled for the purpose of committing dacoity?;
3. Whether accused persons had made preparation for committing dacoity?;
4. Whether the accused persons were found in possession of the alleged vehicle with a fake number plate? and
5. Whether the accused persons were found in possession of any fire arms? 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 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, 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 FIR No. 202/2008 State v. Nitin Wadhwa & Ors. Pages 16/23 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. 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 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.
FIR No. 202/2008 State v. Nitin Wadhwa & Ors. Pages 17/23 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 Incharge 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 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". From all of 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, FIR No. 202/2008 State v. Nitin Wadhwa & Ors. Pages 18/23 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 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 and even the alleged escape of accused Jaibir from the spot is 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 FIR No. 202/2008 State v. Nitin Wadhwa & Ors. Pages 19/23 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 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 FIR No. 202/2008 State v. Nitin Wadhwa & Ors. Pages 20/23 took him to unknown place. Thus, the defence taken by the accused Sachin appears to be a probable defence.
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 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 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 FIR No. 202/2008 State v. Nitin Wadhwa & Ors. Pages 21/23 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 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 offences regarding possession of the vehicle with a fake number plate and possession of fire arms are concerned, as discussed in the preceding paras, the raid through which said vehicle/arms were recovered is itself doubtful.
FIR No. 202/2008 State v. Nitin Wadhwa & Ors. Pages 22/23
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, all four accused persons namely Nitin Wadhwa, Suresh Parkash, Jaibir and Sachin @ Sonu are acquitted of all offences charged against them. SACHIN Digitally signed by SACHIN SANGWAN SANGWAN Date: 2023.03.21 17:40:52 +0530 (Announced in the Open court on 21st March,2023) (Sachin Sangwan) Additional Sessions Judge (FTC-01) SE: Sake District Court: New Delhi FIR No. 202/2008 State v. Nitin Wadhwa & Ors. Pages 23/23