Delhi District Court
State vs . 1. Ashwani Arora on 3 June, 2019
IN THE COURT OF MS. RAJ RANI, ADDL. SESSIONS JUDGE 04,
(NORTHWEST DISTRICT) ROHINI COURTS, DELHI
IN THE MATTER OF :
Sessions Case No. 53623/16
FIR No: 252/16
U/s: 399/402/120B IPC & 25 Arms Act
PS : Rani Bagh
STATE Vs. 1. Ashwani Arora
S/o Sh. Jagdish Lal
R/o H. No. G272, Rishi Nagar
Rani Bagh, Delhi
2. Ashish
S/o Sh.Shatrughan
R/o H.No. I431,
Shakur Pur, JJ Colony,
Delhi
3. Sunil @ Bunty
S/o Sh. Ramesh Chand
R/o H. No. E234, Shakur Pur
JJ Colony, Delhi
4. Ankit Mishra @ Kuldeep
S/o Sh. Raj Kumar
R/o H. No. I64, Shakur Pur
JJ Colony, Delhi
Complainant:
SI Ramesh
PS Rani Bagh
Date of receiving the file in this court : 10.11.2016
Date of judgment : 03.06.2019
State V. Ashwani Arora etc FIR no. 252/16 PS Rani Bagh Page 1
J U D G M E N T:
1. By this judgment, I shall conclude the trial of the case FIR No.252/16, Police Station Rani Bagh registered against the accused persons for the offences punishable under Sections 399/402/120B IPC & 25 of Arms Act.
2. In brief, the case of the prosecution is that on 08.07.2016 at about 1.10 pm, secret informer arrived at the PS and informed ACP Indrawati Rathore, the then SHO PS Rani Bagh that 56 boys having weapons with them were sitting in Swami Shradhanand Park, Near Jhang Bhawan, Rishi Nagar, Rani Bagh, Delhi and they were planning to commit robbery in some house situated at Rishi Nagar. She got the said information reduced in writing vide DD No.21A, and instructed SI Ramesh Kumar to take up the matter. As per the directions of SHO, SI Ramesh Kumar constituted a raiding party consisting of himself, HC Jai Chand, HC Rakesh, Ct. Rampal, Ct. Balwan and Ct. Rajnish and he briefed all the members of the raiding party regarding the said secret information. At about 1:15 pm, raiding party and secret informer reached the spot i.e. Swami Shradhanand Park near Jhang Bhawan, Rishi Nagar, Rani Bagh, Delhi. The secret informer pointed out towards five persons who were sitting by the side of the wall, inside the Swami Sharadhanand Park. The raiding team took the positions and Ct. Rampal, who was about 1015 feet away from the said persons overheard their conversations and informed that the said persons were planning to commit dacoity in a house situated at Rishi Nagar. Upon this information, the members of the raiding party apprehended three persons, namely Ashish, Sunil Kumar and Ankit State V. Ashwani Arora etc FIR no. 252/16 PS Rani Bagh Page 2 Mishra and two other persons managed their escape from the spot. Upon conducting general search of apprehended persons, one country made pistol alongwith one live cartridge was recovered from accused Sunil Kumar and one country made pistol alongwith one live cartridge was recovered from accused Ankit Mishra. The country made pistols and cartridges were seized and accused persons were arrested and booked in the present case. During investigation, it is revealed that accused Ashwani Arora had hatched a criminal conspiracy with the accused persons to commit dacoity at the house of Seema Sharma with whom accused Ashwani Arora was aggrieved as she had lodged FIR No.401/15 u/s. 365/342 IPC against him and others at PS Rani Bagh with the allegations that he had attempted to recover his money from her by using illegal means.
3. After completion of investigation, charge sheet under Section 399/402/120B IPC & 25 of Arms Act was prepared and filed in the concerned court of Ld. Metropolitan Magistrate. After taking cognizance and complying with the provisions of Section 207 Cr.P.C, the present case was committed to the court of Sessions.
4. After hearing arguments on the point of charge, charge for the offence punishable under Section 120B IPC was framed against all the accused persons. Charge u/s 399/402 IPC was framed against accused Ashish, Sunil and Ankit Mishra. Charge u/s 25 of Arms Act was also framed against accused Sunil @ Bunty and Ankit Mishra @ Kuldeep by the Ld. Predecessor of this Court to which accused persons pleaded not guilty and claimed trial.
State V. Ashwani Arora etc FIR no. 252/16 PS Rani Bagh Page 3
5. In support of its case, the prosecution has examined as many as fourteen witnesses.
PUBLIC WITNESSES:
6. PW10/Seema Sharma @ Bala deposed that she along with her family resides at 269A, first floor, Rishi Nagar, Rani Bagh and she used to do the work of committee (Kitty). Wife of accused Ashwani Arora who is resident of the same street in which she resides, was also a member of committee/kitty and she also used to do the work of committee/kitty and she was member of the committees run by her. They adjusted their payments against the kitty of each other and nothing was to be taken by her from the wife of accused Ashwani or by the wife of accused Ashwani from her. Accused Ashwani Arora and his wife Mohini used to visit her house regularly and they were well aware about the locker (tijori) in her house in which she used to keep the money of committee as well as her own valuables. She has further deposed that on 26.05.2015, she along with her husband and son were abducted by Ashwani Arora along with his associates and they were kept in confinement for three days and a FIR in this regard was registered on 29.05.2015 at PS Rani Bagh. About 1015 days prior to the recording of her statement in the present case, two persons had come at her residence and they introduced themselves as employees of NDPL. Accused Ankit was one of them and he was having a black color bag with him and his other associate who was bulky, aged and partly bald was checking her electricity meter. Later State V. Ashwani Arora etc FIR no. 252/16 PS Rani Bagh Page 4 on, he asked accused Ankit to go upstairs and to check as to how many Air conditioners were there in her house. She became suspicious as prior to this occasion, the NDPL staff never asked for checking the Air conditioners, as such she objected and did not permit them to go on the first floor of her house and she also closed the door of ground floor, after scolding them and asking them to leave her house. The said bulky man had also asked her to provide water to him. Later on, her neighbors told her that after closing the main door of her house, they had again visited her house and police told that they were total five persons and three others were standing in the street.
POLICE WITNESSES
7. PW1/HC Krishan deposed that on 08.07.2016, he was working as Duty officer from 4.00pm to 12 midnight. At about 4.30pm, he received a rukka sent by SI Ramesh through HC Rakesh. On the basis of said rukka, he got the present FIR recorded on computer through computer operator. Computerized copy of FIR is Ex.PW1/A. He made his endorsement Ex.PW1/B on the original rukka. Certificate u/s.65B regarding computerized copy of FIR is Ex.PW1/C.
8. PW2/Ct. Ajay Singh deposed that on 28.09.2016, as per the instructions of IO/SI Jitender Singh, he collected two pulandas sealed with the seal of RK along with forwarding letter from MHC(M) HC Ravinder vide RC No.43/21/16 and deposited the same at FSL, Rohini, Delhi and after depositing the pulandas, he returned acknowledgment of FSL and one copy of RC to MHC(M).
State V. Ashwani Arora etc FIR no. 252/16 PS Rani Bagh Page 5
9. PW3/ACP Indrawati Rathore deposed that on 08.07.2016, she was posted at PS Rani Bagh as SHO. On that day, at about 1.10pm, secret informer arrived at the PS and informed her that 56 boys having weapons with them were sitting in Swami Shradhanand Park, Near Jhang Bhawan, Rishi Nagar, Rani Bagh, Delhi and they were planning to commit robbery in some house situated at Rishi Nagar. She got the said information reduced in writing vide DD No.21A, copy of which is Ex.PW3/A and instructed SI Ramesh Kumar to take up the matter.
10. PW4/SI Ramesh Kumar deposed that on 08.07.2016, at about 1:10 pm, the then SHO, PS Rani Bagh, Ms. Indrawati called him in her room and shared the secret information received by her to the effect that, "kuch aadmi Swami Shradhanand Park near Jhang Bhawan, Rishi Nagar, Rani Bagh, Delhi me lootpat karne ki yojna bana rahe hai. If raid is conducted, they can be apprehended." After receiving the said information, as per the directions of SHO, he constituted a raiding party consisting of himself, HC Jai Chand, HC Rakesh, Ct. Rampal, Ct. Balwan and Ct. Rajnish and he briefed all the members of the raiding party regarding the said secret information. All the members of the raiding party along with secret informer left the PS at about 1:15pm vide DD No.22A and reached near Swami Shradhanand Park and there secret informer pointed out towards five persons who were sitting by the side of the wall, inside the Swami Shradhanand Park and stated that they were the persons who were planning to commit dacoity in the area of Rishi Nagar and they must be having State V. Ashwani Arora etc FIR no. 252/16 PS Rani Bagh Page 6 illegal weapons with them. He asked 4 or 5 passersby to join the raiding party after briefing them about the secret information but all of them refused and left the place without telling their names and addresses, with reasonable excuses. No notice could be served to them due to paucity of time. He deputed Ct. Rampal to overhear the conversation of said five persons and as such, Ct. Rampal reached near the tree of Safeda(eucalyptus), which was at a distance of about 1015 feet on the right hand side wall of the main gate of the park and came back after some time and informed him that the persons who were sitting inside the said park were planning to commit dacoity in a house situated at Rishi Nagar on the basis of the information passed to them by one shopkeeper of Rani Bagh namely Ashwani Arora and they must be having weapons with them. Meanwhile, one person out of said five persons, who was of stout built and was urinating inside the park at that time, escaped from there after seeing them. When on his direction, all the members of the raiding party tried to apprehend the remaining four persons, one more person out of them who was also of stout built, managed his escape from there. Remaining three boys were apprehended by Ct. Rampal, Ct. Rajnish and Ct. Balwan and their names revealed to be Sunil Kumar, who was apprehended by Ct. Rampal, Ankit Mishra, who was apprehended by Ct. Balwan and Ashish, who was apprehended by Ct. Rajnish. On conducting general search of accused Sunil Kumar, one country made pistol was recovered from the right dub of his pants and one live cartridge was recovered from the right pocket of his pants. On opening the barrel of the katta, one live cartridge was found inside the barrel and that cartridge was also taken out. He prepared the sketch Ex. PW4/A of State V. Ashwani Arora etc FIR no. 252/16 PS Rani Bagh Page 7 the katta and cartridges. On measuring, the total length of the katta was found to be 26.5 cm, length of the barrel was 13.5 cm, length of the butt was 10 cm and length of the body was 10.2 cm. The length of the each cartridge was 7.4 cm. On the bottom of the cartridges, 8mm KF was found engraved. The said katta and both the cartridges were seized vide seizure memo Ex. PW4/B.
11. PW4 has further deposed that on conducting general search of accused Ankit Mishra, one country made pistol was recovered from the right dub of his pants and one live cartridge was recovered from the right pocket of his pants. On opening the barrel of the katta, one live cartridge was found inside the barrel and that cartridge was also taken out. He prepared the sketch Ex.PW4/C of the katta and cartridges. On measuring, the total length of the katta was found to be 24 cm, length of the barrel was 15 cm, length of the butt was 8 cm and length of the body was 10 cm. The length of the each cartridge was 7.4 cm. On the bottom of the cartridges, 8mm KF was found engraved. The said katta and both the cartridges were seized vide seizure memo Ex.PW4/D. Nothing objectionable was recovered from the possession of accused Ashish. On interrogation, accused Ashish, Sunil and Ankit Mishra disclosed that the person who first escaped from the spot was one R.K.Sethi, resident of Rishi Nagar and the person who escaped after conducting the raid was Abhishek. He prepared tehrir Ex.PW4/E and handed over the same to HC Rakesh who left the spot for registration of FIR. After some time, HC Rakesh along with SI Jitender arrived at the spot and he handed over both the pullandas in sealed condition, documents which were prepared by him State V. Ashwani Arora etc FIR no. 252/16 PS Rani Bagh Page 8 and custody of accused Ashish, Sunil and Ankit Mishra to second IO SI Jitender. SI Jitender prepared site plan at his instance. Thereafter, he was discharged. He has identified country made pistol along with one live cartridge and one cartridge case (used in FSL test firing) Ex. P1 (colly) recovered from accused Sunil, one country made pistol along with one live cartridge and one cartridge case (used in FSL test firing) Ex. P2 (colly) recovered from accused Ankit.
12. PW4 SI Ramesh Kumar was duly crossexamined wherein he deposed that secret informer was also present in the room of SHO when SHO briefed him about the secret information. PW4 further deposed that secret informer left the spot after pointing out towards the accused persons sitting in the park. He further deposed that Ct. Rampal overheard the conversation of accused from a distance of about 1015 feet. He further testified that all the members of raiding party were in plain clothes and he alongwith HC Jai Chand and HC Rakesh had chased the boy whose name revealed to be Abhishek for 2030 meters but in vain. PW4 further states that all the members of the raiding party had reached the spot from PS on individual motorcycles. PW4 states that pullandas were prepared and writing work was done inside the park while sitting on an iron bench.
13. PW5/HC Rakesh Kumar who was also a member of raiding party has deposed on the lines of PW4. He has also deposed that accused Ashish, Ankit Mishra and Sunil were arrested vide arrest memos Ex. PW5/A to Ex. PW5/C and their personal search were conducted vide memos Ex.PW5/D to Ex.PW5/F. IO recorded their State V. Ashwani Arora etc FIR no. 252/16 PS Rani Bagh Page 9 disclosure statements. Thereafter, they all along with the said three accused reached PS Rani Bagh. Case property was deposited by the IO in the Malkhana. Pursuant to the disclosure statements of accused Ashish and Ankit Mishra, accused Ashwani Arora was arrested from his shop bearing no. 960, Rani Bagh, Delhi which was in the name of Prakash Garments who was the kingpin. Arrest memo of accused Ashwani is Ex.PW5/G and his personal search memo is Ex. PW5/H. Thereafter, they came back to the PS and accused were put in the lock up. On asking leading question by the Ld. Addl. PP for the State, he has deposed that the pistols were recovered from the right dub and one live cartridge each was recovered from the right pocket of pants of accused Ankit and Sunil. He has further deposed that on the direction of duty officer, he had handed over the copy of FIR and original tehrir to SI Jitender. He has identified the country made pistol along with one live cartridge and one cartridge case (used in FSL test firing) are Ex. P1 (colly) recovered from accused Sunil and the country made pistol along with one live cartridge and one cartridge case (used in FSL test firing) Ex. P2 (colly) recovered from accused Ankit Mishra.
14. In his cross examination, PW5 has deposed that the secret information was received by the SHO and after giving information, secret informer left the PS and he was not there at the time of constitution of raiding party. PW5 deposed that he does not remember who pointed out towards the accused persons. He had not apprehended any accused. No one was called from the Apartment which were there in front of the said park. PW5 deposed that at the time of raid, he was in plain clothes.
State V. Ashwani Arora etc FIR no. 252/16 PS Rani Bagh Page 10
15. PW6/Puneet Puri deposed that on 28.09.2016, two sealed parcels sealed with the seal of RK, of this present case were received in FSL through Ct. Ajay and the same were marked to him for examination. The seals on the parcels were intact and as per the specimen seal provided with the FSL form. On opening the first parcel, one country made pistol of .315 inch bore and two 8mm/.315 inch cartridges were taken out and marked as Ex.F1, A1 and A2 respectively. On opening the second parcel, one country made pistol of .315inch bore and two 8mm/.315 inch cartridges were taken out and marked as Ex.F2, A3 and A4 respectively. On examination, he found that the country made pistols marked Exhibit F1 and F2 were in working order. Test fire conducted successfully. The cartridge marked Ex.A1 was test fired through Ex.F1 and cartridge marked Ex.A3 was test fired through Ex.F2. The country made pistols marked Ex.F1 and Ex.F2 were firearm and the cartridges marked Ex.A1 to A4 were ammunitions as defined in Arms Act, 1959. The exhibits were then resealed with the seal of PP FSL DELHI. His detailed report in this regard is Ex.PW6/A.
16. PW7/Shishir Malhotra Nodal officer, Aircel Ltd. deposed that pursuant to the letter of Shri Vijay Singh, DCP, Northwest District addressed to the Nodal Officer, Aircel Delhi dated 22.09.2016, the information sought regarding mobile no. 7053148158 was supplied, vide his letter dated 28.09.2016 Ex.PW7/A. As per record, the said mobile number was in the name of Ashish s/o Satrughan r/o I431, Shakurpur, Delhi. Copy of the CAF is Ex.PW7/B and copy of the voter State V. Ashwani Arora etc FIR no. 252/16 PS Rani Bagh Page 11 ID provided by said Ashish at the time of purchase of said SIM card is Ex.PW7/C. The CDR of said mobile phone for the period 01.05.2016 to 08.07.2016 running in 42 pages is Ex.PW7/D. The cell ID chart of the said period running in three pages is Ex.PW7/E. The requisite Certificate u/s.65B of the Indian Evidence Act, regarding the computerized CDR is Ex.PW7/F.
17. PW8/Sukhvir Singh, Nodal Officer deposed that pursuant to the letter of Shri Vijay Singh, DCP, Northwest District addressed to the Nodal Officer, Idea Cellular, Delhi dated 20.09.2016, the information sought regarding mobile no.9911855354 was supplied to him. As per record, the said mobile number was in the name of Ashish s/o Satrughan r/o H.No.297, Ward No.22, Sonepat, Haryana and H.No.153, Rajdhani Enclave, Delhi34. Copy of the CAF is Ex.PW8/A and copy of the voter ID provided by said Ashish at the time of purchase of said SIM card is Ex.PW8/B. The CDR of said mobile phone for the period 01.05.2016 to 08.07.2016 running in 14 pages is Ex.PW8/C. The cell ID chart of the said period running in 61 pages is Ex.PW8/D. The requisite Certificate u/s.65B of the Indian Evidence Act, regarding the computerized CDR is Ex.PW8/E.
18. PW9/Anjan Roy, Nodal officer deposed that on the request letter of the then DCP NW District, Shri Vijay Singh, dated 20.09.2016, he had supplied the CDR and copies of CAF of mobile numbers 9213635370 and 9268918205 and a certificate u/s.65B of Indian Evidence Act. His covering letter regarding the supply of said documents is Ex.PW9/A. CAF of mobile number 9213635370 is State V. Ashwani Arora etc FIR no. 252/16 PS Rani Bagh Page 12 Ex.PW9/B and the certified CDR of said mobile number from 01.05.2016 to 08.07.2016 running in 31 pages is Ex.PW9/C. The cell ID chart in this regard is Ex.PW9/D. CAF of mobile number 9268918205 is Ex.PW9/E and the CDR of this mobile number from 01.05.2016 to 08.07.2016 running in 19 pages is Ex.PW9/F and the Cell ID chart running in three pages is Ex.PW9/G. The certificate u/s.65B of Indian Evidence Act regarding said CDRs is Ex.PW9/H.
19. PW11/HC Rampal Singh was also one of the members of raiding party who deposed on the same lines as of PW4 and PW5.
20. In his cross examination, PW11 deposed that accused were sitting at a distance of 1520 feet from the said gate of park near a tree of Eucalyptus. All police officials were in plain clothes. Two associates of accused persons had managed their escape from the rear gate of park and he did not try to apprehend them. He further deposed that he alongwith his team members apprehended the rest three accused when they were still sitting and no occasion was provided to them to flee. He deposed that he had not seen the secret informer at PS or at the spot. PW11 further deposed that IO had asked the residents of flats situated in front of park to join the raiding party but they refused to join them.
21. PW12/ASI Ravinder Kumar deposed that on 08.07.2016, he was working as MHC(M) at PS Rani Bagh. On that day, SI Ramesh Kumar deposited two pullandas sealed with the seal of RK and he also deposited the personal search articles of the four arrested accused State V. Ashwani Arora etc FIR no. 252/16 PS Rani Bagh Page 13 persons and he made entry no. 1021 in register no. 19 Ex.PW12/A. On 28.09.2016, the exhibits were sent to FSL through Ct. Ajay vide road certificate no.43/21/16 against the receiving. The register no. 21 is Ex.PW12/B. On 21.11.2016, the said exhibits were received back through Ct. Parminder Singh and he made relevant entry to the said effect in register no. 19.
22. PW13/Vijayanta Arya deposed that she was working as Addl. DCP1 and on 01.12.2016, file of FIR No. 252/16 was placed before her for according sanction u/s. 39 Arms Act for prosecution of accused Sunil @ Bunty and Ankit Mishra @ Kuldeep. She had gone through the file including the ballistic report, seizure memos, statement of witnesses and after satisfying that the two accused persons deserved to be proceeded against under the relevant provisions of Arms Act, had granted sanction Ex.PW13/A.
23. PW14/SI Jitender Singh deposed that on 08.07.2016, at about 5.15pm, duty officer PS Rani Bagh handed over him the copy of FIR and original tehrir of the present case as after registration of the present FIR, further investigation of the case was entrusted to him. He along with HC Rakesh who had brought the tehrir from the spot to PS, reached at the spot ie Swami Shradhanand Park, Captain Satish Marg, Pitampura, Delhi. There, SI Ramesh along with HC Jai Chand, Ct. Rampal, Ct. Balwan and Ct. Rajnish met him. Accused Ashish, Ankit and Sunil were also present there in the custody of said police officials. SI Ramesh handed over the custody of three accused to him and also handed over two pulandas sealed with the seal of RK stated State V. Ashwani Arora etc FIR no. 252/16 PS Rani Bagh Page 14 to be containing country made pistols and cartridges, which were recovered from the accused persons. He also handed over him all the documents prepared by him pertaining to this case. He prepared site plan Ex.PW14/A at the instance of SI Ramesh Kumar. Thereafter, SI Ramesh Kumar was discharged. He recorded disclosure statements of accused Ankit Mishra, Ashish and Sunil Kumar, Ex.PW14/B, Ex.PW14/C and Ex.PW11/A respectively. Thereafter, all the said three accused ie Ashish, Ankit and Sunil were arrested vide arrest memos Ex.PW5/A, Ex.PW5/B and Ex.PW5/C respectively and their personal search was conducted vide memos Ex.PW5/D, Ex.PW5/E and Ex.PW5/F respectively. Pursuant to their disclosure statements, accused Ashish and Ankit led them to Shop No.956, Rani Bagh Main Market and pointed out accused Ashwani Arora who was sitting at the said shop at that time. Accused Ashwani Arora was interrogated by him and he recorded his disclosure statement Ex.PW14/D and thereafter, he was arrested and his personal search was conducted vide memos Ex.PW5/G and Ex.PW5/H respectively. Thereafter, they along with all the four accused in custody reached PS Rani Bagh. Case property was deposited in the malkhana. He got all the four accused medically examined at Bhagwan Mahavir hospital and thereafter, they were put in the lock up of PS Subhash Place. He again came back at PS and recorded statements of accompanying staff and SI Ramesh Kumar. On 18.07.2016, he visited the house of Smt. Seema Sharma and recorded her statement. On 28.09.2016, he got the exhibits of present case deposited at FSL Rohini through Ct. Ajay and on that day, he recorded statements of Ct. Ajay and that of MHC(M) HC Ravinder. He had obtained CDR of mobile phones of State V. Ashwani Arora etc FIR no. 252/16 PS Rani Bagh Page 15 accused Ashish, Ankit and Ashwani Arora, perusal of which revealed that they all were in touch with each other. The CDRs and CAF and certificates u/s.65B of Evidence Act were made part of record. After completion of investigation, he had prepared the charge sheet and filed the same in the court. After receipt of result of FSL, he obtained necessary sanction u/s.39 Arms Act and filed the same in the court.
24. Before coming to the testimonies of individual witnesses, the details of the witnesses examined by the prosecution and defence and the documents proved by them are hereby put in a tabulated form as under: S.No PW No. Name of the witnesses Details of witnesses 1 PW1 HC Krishan Police witness
2. PW2 Ct. Ajay Singh Police witness
3. PW3 ACP Indrawati Rathore Police witness
4. PW4 SI Ramesh Kumar Complainant
5. PW5 HC Rakesh Kumar Police witness
6. PW6 Puneet Puri Forensic witness
7. PW7 Shishir Malothra Nodal Officer
8. PW8 Sukhvir Singh Nodal Officer
9. PW9 Anjan Roy Nodal Officer
10. PW10 Seema Sharma Public witness
11. PW11 HC Rampal Singh Police witness
12. PW12 ASI Ravinder Kumar Police witness
13. PW13 Ms. Vijayanta Arya Addl. DCP
14. PW14 SI Jitender Singh Police witness/ IO State V. Ashwani Arora etc FIR no. 252/16 PS Rani Bagh Page 16 LIST OF EXHIBITED DOCUMENTS:
Sl. Exhibit No. Details of documents Proved by No. 1 PW1/A Copy of FIR HC Krishan 2 PW1/B Endorsement on rukka 3 PW1/C Certificate u/s 65B Evidence Act 4 Ex.PW3/A Copy of DD no. 21A ACP Indrawati 5 Ex.PW4/A Sketch of katta and cartridge recovered from accused Sunil Kumar 6 Ex.PW4/B Seizure memo of katta and cartridges SI Ramesh 7 Ex.PW4/C Sketch of katta and Kumar cartridges recovered from accused Ankit Mishra 8 Ex.PW4/D Seizure memo of katta and cartridges 9 Ex.P1(Colly) Country made pistol alongwith one cartridge and one cartridge case recovered from accused Sunil 10 Ex.P2 (colly) Country made pistol , one empty cartridge case one live cartridge recovered from accused Ankit Mishra 11 Ex.PW5/A to Arrest memo of HC Rakesh Ex.PW5/C accused Ashish, Ankit Kumar Mishra and Sunil 12 Ex.PW5/D to Personal search of Ex.PW5/F accused Ashish, Ankit State V. Ashwani Arora etc FIR no. 252/16 PS Rani Bagh Page 17 Mishra and Sunil 13 Ex.PW5/G Arrest memo of accused Ashwani 14 Ex.PW5/H Personal search of accused Ashwani.
15 Ex.PW6/A Detailed forensic Puneet Puri
report
16 Ex.PW7/A Letter for suppling the Shishir
information of CAF Malhotra
17 Ex.PW7/B CAF
18 Ex.PW7/C Copy of voter ID
19 Ex.PW7/D CDR
20 Ex.PW7/E Cell ID chart
21 Ex.PW7/F Certificate u/s 65B
Evidence Act
22 Ex.PW8/A Copy of CAF
23 Ex.PW8/B Copy of Voter ID card
of accused Ashish Shri Sukhvir
Singh, Nodal
24 Ex.PW8/C CDR of mobile phone Officer
25 Ex.PW8/D Cell ID Chart
26. Ex.PW8/E Certificate u/s.65B of
Indian Evidence Act
27. Ex.PW9/A Covering letter
28. Ex.PW9/B, CAF, CDR and Cell ID
Ex.PW9/C chart of mobile no.
and 9213635370 Shri Anjan
Ex.PW9/D Roy, Nodal
Officer
29. Ex.PW9/E, CAF, CDR and Cell ID
Ex.PW9/F chart of mob. No.
and 9268918205
Ex.PW9/G
30. Ex.PW9/H Certificate u/s.65B of
Indian Evidence Act
31. Ex.PW11/A Disclosure statement HC Rampal
State V. Ashwani Arora etc FIR no. 252/16 PS Rani Bagh Page 18
of accused Sunil Singh
32. Ex.PW12/A Copy of entry No.1021 ASI Ravinder
in register no.19 Kumar
33 Ex.PW12/B Copy of RC
No.43/21/16 in register
no.21
34. Ex.PW13/A Sanction U/s.39 Arms Ms. Vijayanta
Act Arya
35. Ex.PW14/A Site plan
36. Ex.PW14/B Disclosure statement
of accused Ankit
Mishra SI Jitender
Singh
37. Ex.PW14/C Disclosure statement
of accused Ashish
38. Ex.PW14/D Disclosure statement
of accused Ashwani
25. After completion of the prosecution evidence, statements of accused persons under Section 313 Cr.P.C have been recorded, wherein, accused Ashwani Arora deposed that he is innocent and had been falsely implicated and arrested in this case on the basis of disclosure statement. Police officials forcibly obtained his signatures on some plain papers and converted them into different memos. He had to take Rs. 15 lacs from Seema Sharma and that is why she had made false allegations against him and in lieu of Rs. 15 lacs she had issued three cheques in his favour. It has been stated by the remaining accused persons that they are falsely implicated in this case and nothing incriminating was recovered from their possession. In his defence, accused Ashwani had examined one witness namely Harish Kumar.
State V. Ashwani Arora etc FIR no. 252/16 PS Rani Bagh Page 19
26. DW1/ Harish Kapoor deposed that he knew accused Ashwani Arora as well as Smt. Seema Sharma. Smt. Seema Sharma used to do the business of committees. Perhaps, she suffered loss in the committees. Whenever any person demands money from Smt, Seema Sharma, she extended threats to them and also falsely implicated them in the false case. Accused Ashwani Arora is known to him since his birth and is having a good character. Smt. Seema Sharma owed Rs. 15,00,000/ to Sh. Ashwani Arora. Several cheque bounce cases are pending against Smt. Seema Sharma.
27. I have heard the arguments of Shri Virender Kharta, Ld. Addl.
PP for the State, Sh. Ashish Dahiya, Ld. LAC for accused Sunil, Ankit Mishra and Ashish, Sh. S.N. Sharma, Ld. Counsel for accused Ashwani Arora and have gone through the record carefully.
28. Ld. Addl. PP for State has mainly argued that the prosecution has proved its case beyond all shadow of reasonable doubts by leading cogent and convincing evidence. The prosecution has been able to prove that accused persons alongwith their accomplices R.K. Sethi and Abhishek (not yet arrested) had hatched a criminal conspiracy to commit dacoity at the house of Seema Sharma (PW10). In furtherance of that criminal conspiracy, accused Sunil, Ankit Mishra and Ashish alongwith their abovesaid two associates were found planning to commit dacoity at Swami Sharadhanand Park. The prosecution witnesses have been able to prove the recovery of one country made pistol alongwith one live cartridge Ex.P1 from accused Sunil and one country made pistol alongwith one live cartridge and State V. Ashwani Arora etc FIR no. 252/16 PS Rani Bagh Page 20 one cartridge case Ex.P2 from accused Ankit Mishra. It has been argued that the testimonies of PWs are reliable, cogent and convincing and there is no material discrepancy or inconsistency in their deposition and hence all the accused are liable to be convicted for commission of offences with which they have been charged with.
29. Ld. Counsels for accused persons argued that in the present case no incriminating corroborative evidence is brought on record by the prosecution and present case is totally based on the testimonies of police officials of raiding party. No public witness was joined during the raid allegedly conducted by the raiding party and only on the basis of testimonies of police officials the accused persons cannot be convicted. As per the prosecution case, five persons were planning to commit dacoity and three were apprehended from the spot and two managed their escape from the spot. It is not believable as to how two persons managed their escape from the spot as the raiding party was consisting of six police personnels. Ld. Defence counsels have pointed out the material contradictions in the testimonies of prosecution witnesses. In view of the material contradictions in the testimonies of police officials, Ld. Defence counsels requested for acquittal of all the accused persons and have relied upon judgments titled Asgar & Anr. Vs. State of Rajasthan 2003 Cr.L.J. 1997, Deena Nath & Abhishek V. State of Haryana 2011 SCC Online P & H 16589 and Jasbir Singh @ Javri @ Jabbar Singh Vs. State of Haryana (2015) 5 SCC 762.
30. Before proceeding further, relevant case law with regard to State V. Ashwani Arora etc FIR no. 252/16 PS Rani Bagh Page 21 offence of dacoity need to be perused: "Section 391. Dacoity. When five or more person 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 399 IPC read as under : "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 402 IPC Assembling for purpose of committing dacoity. 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."
31. From the abovequoted Sections, it is clear that in order to establish an offence punishable under Section 399 IPC some act amounting to preparation must be proved and what must be proved further is an act for which preparation was being made was a dacoity, that is to say, robbery to be committed by five or more persons. The prosecution has to establish under Section 402 IPC that there had been an assembly of five or more persons constituted for the purpose of committing dacoity and that the accused persons were members of that assembly.
State V. Ashwani Arora etc FIR no. 252/16 PS Rani Bagh Page 22
32. The case of the prosecution is that the accused persons alongwith their accomplices R.K. Sethi and Abhishek (not yet arrested) had hatched a criminal conspiracy to commit dacoity at the house of Seema Sharma (PW10) with whom accused Ashwani Arora was aggrieved as she had lodged FIR No.401/15 u/s. 365/342 IPC against him and others at PS Rani Bagh with the allegations that he had attempted to recover his money from her by using illegal means. In furtherance of said criminal conspiracy, accused persons except accused Ashwani Arora were making preparation at Swami Shradhanand Park and accused Ashish, Ankit Mishra and Sunil were apprehended by the police. Two associates of accused persons managed their escape from the spot. Accused Sunil and Ankit Mishra were found to be carrying loaded country made pistols.
33. Section 120A IPC defines criminal conspiracy as under : When two or more persons agree to do, or cause to be done,-- (1) an illegal act, or (2) an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy: Provided that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof.
34. It is settled law that a criminal conspiracy need not and cannot often be proved by direct evidence because of the reason that conspiracy is hatched in secrecy and executed in darkness.
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35. As explained by Hon'ble Supreme Court of India, in John Pandian Vs State (2010) 14 SCC 129 that there must be a meeting of minds resulting in ultimate decision taken by the conspirators regarding the commission of the offence and where the factum of conspiracy is sought to be inferred even from circumstances giving rise to a conclusive or irresistible inference of crime between the two or more persons to commit an offence. It was held that a few bits here and a few bits there on which the prosecution relies cannot be held to be adequate for connecting the accused with the commission of crime of criminal conspiracy. The circumstance relied for the purpose of drawing an inference should be prior in point of time than the actual commission of the offence in furtherance of the alleged conspiracy.
36. In the present case, apart from the CDR of mobile phones of accused Ashish and one person namely Kishan and confessional statements of accused persons Ex. PW14/B, Ex.PW14/C, Ex.PW14/D and Ex.PW11/A, there is no other evidence on record to show that there was any criminal conspiracy between accused persons.
37. As per Section 25 of Indian Evidence Act, no confession made to a police officer shall be proved as against a person accused of any offence. Section 27 of Indian Evidence Act provides an exception to Section 25 and as per Section 27 of the Act, confession made to police is admitted in evidence when the confessional statement leads to the discovery of a fact connected with the crime. The ban imposed by Section 25 of Indian Evidence Act would be lifted only if the statement is distinctly related to discovery of facts.
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38. Section 27 of Indian Evidence Act is founded on the principle that if the confession of the accused is supported by the discovery of a fact, it may be presumed to be true and not to have been extracted. The truth of the confession is guaranteed by the discovery of fact in consequence of the information given.
39. In the present case, the prosecution has failed to show any discovery of fact pursuant to the confessional statements of accused persons. So, the confessional statements of accused persons shall be hit by Section 25 of Indian Evidence Act and cannot be read against them.
40. The prosecution has also proved on record the Call Detail Records (CDRs) of mobile phones of accused Ashish and one person namely Kishan, in order to prove that accused persons had hatched a criminal conspiracy. Ld. Defence counsels have argued that mere call records by themselves do not reflect any conspiracy between accused persons. Even otherwise, the actual contents of the mobile phone conversation are not available to the prosecution case. The prosecution has failed to prove on record CDR of other accused persons and only on the basis of CDR of one accused, all accused persons cannot be convicted for the offence punishable u/s. 120B IPC. Ld. Defence counsels have placed reliance on Judgment titled Saloni Arora Vs. State Crl.M.A. 10685/2008 in Crl. Rev. P. 497/2008 DOD 29.05.2009. I find force in the submissions of Ld. Defence counsels and in view of the above cited judgment the accused State V. Ashwani Arora etc FIR no. 252/16 PS Rani Bagh Page 25 persons cannot be convicted only on the basis of CDR of one accused.
41. So, in view of above discussion, it is clear that there is no substantive evidence to show that there was an agreement between the accused Ashwani Arora and other accused persons to commit dacoity at the house of Seema Sharma/PW10. The court is not convinced that there was any prior meeting of minds of accused persons. Therefore, the accused persons are entitled to be acquitted of the charge of conspiracy being not proved u/s 120B IPC.
42. As far as charge u/s. 399/402 IPC is concerned, in order to prove its case, the prosecution has examined three members of raiding party, PW4/SI Ramesh Kumar, PW5/HC Rakesh Kumar and PW11/HC Rampal Singh.
43. Perusal of testimony of PW4, PW5 and PW11 shows that there are material contradictions and inconsistencies in their testimonies and the prosecution witnesses have failed to stand through the test of crossexamination. In his crossexamination, PW4 has stated that secret informer was present in the room of SHO when SHO briefed him about the secret information and secret informer left the spot after pointing out towards the accused persons, whereas, PW5 has stated in his crossexamination that he does not remember who had pointed out towards the accused persons. On the other hand, PW11 has stated in his crossexamination that he had not seen the secret informer either at the PS or at the spot. It is also pertinent to note State V. Ashwani Arora etc FIR no. 252/16 PS Rani Bagh Page 26 herein that PW4 has stated in his crossexamination that he alongwith HC Jai Chand and HC Rakesh had chased the boy whose name revealed to be Abhishek for 2030 meters, whereas, PW11 has stated in his crossexamination that two associates of accused persons had managed their escape from the spot and he had not tried to apprehend them. Further, PW5 has deposed in his crossexamination that no person was called from the Apartment which were there in front of the said park, whereas, PW11 has deposed that IO had asked the residents of flats situated in front of park to join the raiding party but they refused to join them. These are the material contradictions which creates serious doubt to the prosecution case.
44. In the present case, the statement of PW11/HC Rampal cannot be believed that from the distance of 1520 feet he had overheard the conversation of the accused persons, when they were planning to commit dacoity in a public park. It is not believable that the accused persons would talk so loudly in a public park that HC Rampal could be able to overhear them from a distance of 1520 feet.
45. As per the testimonies of all material witnesses, two associates of accused persons managed their escape from the spot. Out of them, one escaped from there even before the raid was conducted by the raiding party. It is not believable as to how he escaped after seeing police raiding party inspite of its being in plain clothes. It is also not believable as to how two persons managed their escape from the spot as the raiding party was consisting of six police personnels. It is also noted herein that two accused were allegedly armed with State V. Ashwani Arora etc FIR no. 252/16 PS Rani Bagh Page 27 loaded country made pistols to commit dacoity, but nothing is brought on record by the prosecution that accused persons offered any resistance to their apprehension by police personnels though armed with deadly weapons or they tried to fire upon police personnels of raiding party.
46. Reliance can be placed on judgment titled as Jasbir Singh @ Javri @ Jabbar Singh Vs State of Haryana (Supra) wherein it has been observed by the Hon'ble Supreme Court that it is not natural that the six accused, four of whom were armed with deadly weapons, neither offered any resistance nor caused any injury to any of the police personnel before they are apprehended by the police.
47. In view of above discussion, this Court is of the view that the prosecution has failed to prove by cogent and convincing evidence that accused were making preparation or had gathered for the purpose of committing dacoity.
CONCLUSION:
48. In view of above discussion, it is held that prosecution has miserably failed to prove the charges against the accused persons beyond reasonable doubt. Accused Ashwani Arora, Ashish, Sunil @ Bunty and Ankit Mishra @ Kuldeep stand acquitted from the charge u/s 120B IPC and accused Ashish, Sunil @ Bunty and Ankit Mishra @ Kuldeep stand acquitted from the charges u/s. 399/402 IPC and accused Ankit Mishra @ Kuldeep and Sunil @ Bunty are acquitted State V. Ashwani Arora etc FIR no. 252/16 PS Rani Bagh Page 28 from the charge u/s 25 Arms Act.
49. Accordingly, all the accused persons are directed to furnish the bail bonds in compliance of section 437A Cr.P.C.
Digitally signed by RAJ RANI RAJ RANI Date: 2019.06.10
15:39:28 +0530
Announced in the open court (Raj Rani)
on 03.06.2019 Addl. Sessions Judge04(NorthWest)
Rohini Courts, Delhi.
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