Delhi District Court
Fir No. 561/04; State vs . Subhash @ Sat Prakash Etc. Page 1 Of 52 on 29 March, 2012
IN THE COURT OF SH. YASHWANT KUMAR : ADDL. SESSIONS
JUDGE03:NW:ROHINI:DELHI
SESSIONS CASE NO. 25/11
FIR No. 561/04
P.S. Jahangirpuri
U/S: 307/394/395/397/
120B IPC
STATE
Versus
(1) Subhash @ Satya Prakash
s/o Birpal
r/o vill. Ghatanpur, PS Bardha,
Distt. Azamgarh, UP
(2) Babloo Passi @ Bhola
s/o Balchand
r/o vill. Hathiya, PS Bardha,
Distt. Azamgarh, UP
(3) Haridwar @ Chacha
s/o Udai Raj
r/o Singhpur, PS Mehnagar,
Distt. Azamgarh, UP
(4) Jiya Lal
s/o Girdhari Lal
r/o jhuggi no. N28/C96
Chandra Shekhar Azad Colony,
FIR No. 561/04; State Vs. Subhash @ Sat Prakash Etc. Page 1 of 52
Wazirpur Industrial Area, Delhi
(5) Pintoo Passi @ Sunil Passi
s/o Ram Kishan
r/o village Hathiya, PS Sindhari,
Distt. Azamgarh, UP
J U D G M E N T
1. The Prosecution case, in brief, is that on 04082004, complainant Moti Lal was going to Azad Pur Subzi Mandi on two wheeler scooter bearing no. DDK611 and Kishan Lal, clerk of Hansa Nand, was the pillion rider on the said scooter and was carrying a bag containing cash of Rs. 3 lacs. At about 4:10 am when they were at a short distance from the gate of Fruit Mandi on the way to New Subzi Mandi, accused Haridwar @ Chacha stopped the scooter of Moti Lal by parking his scooter in front of scooter of Moti Lal. Coaccused Babloo Pasi fired at Kishan Lal which passed through his body and accused Subhash @ Satya Prakash put a knife on the handle of the scooter of Moti Lal and coaccused Jiya Lal kept a watch from a distance. Accused persons snatched the bag containing Rs. 3 lacs from the Kishan Lal while coaccused Haridwar @ Chacha kept holding Moti Lal by putting his scooter in FIR No. 561/04; State Vs. Subhash @ Sat Prakash Etc. Page 2 of 52 front of his scooter. Moti Lal came and informed Hansa Nand about the incident and they both rushed injured Kishan Lal to hospital. Accused persons escaped from the spot with the cash. DD no. 21 was recorded and SI Sanjay Kumar along with Ct. Subhash and Ct. Paramvir reached the Out Gate of Azadpur Mandi and recorded statement of Moti Lal which is Ex. PW1/A. Thereafter SI Sanjay Kumar prepared the rukka and got the FIR registered at PS through Ct. Paramvir. Crime Team was called at the spot.
2. On 11082004, upon receipt of secret information regarding the accused persons, SHO Inspector K. S. Bhatnagar constituted three raiding teams. The raiding teams reached Phatak No. 7 and took positions. At about 11:45 pm accused Satya Prakash along with coaccused Haridwar @ Chacha and Babloo Pasi came from the side of Kela godown. Accused Haridwar @ Chacha fired at the police party with a country made pistol but it misfired. Accused Satya Prakash was apprehended by police party no. 3, accused Haridwar @ Chacha was apprehended by police party no. 1 and a countrymade pistol was recovered from him and accused Babloo Pasi was apprehended by police part no. 2. Buttondar knives were recovered from the search of accused Satya Prakash and Babloo Pasi and on formal search of accused Haridwar FIR No. 561/04; State Vs. Subhash @ Sat Prakash Etc. Page 3 of 52 @ Chacha one live and one used cartridges were recovered. Accused Satya Prakash, Haridwar @ Chacha and Babloo Pasi were arrested in case FIR no. 683/04 u/s 307/186/353/34 IPC, PS Shalimar Bagh and later on arrested in this case also. Accused Haridwar @ Chacha led the police party to shop no. 1416 at Mausmi Mandi, Subzi Mandi, Azadpur and got recovered Rs. 11,200/ from a polythene bag. Accused Babloo Pasi led the police part at his jhuggi at Kela godown, near Railway Phatak No. 7 and got recovered Rs. 4300/ from an iron box. On 17082004 accused Jiya Lal was arrested from a jhuggi at Wazirpur Industrial Area. After completion of investigation, chargesheet was filed against accused Subhash @ Satya Prakash, Babloo Pasi, Haridwar @ Chacha and Jiya Lal u/s 307/394/395/397/120/34 IPC and u/s 25/27/54/59 Arms Act. Accused Pintoo Pasi @ Sunil Pasi was arrested by SI Narender Singh in case FIR no. 104/06 u/s 307/353/186 IPC and u/s 25/27 Arms Act, PS Rohini and pursuant to his disclosure he was arrested in this case on 10022006. Supplementary challan was filed against accused Pintoo Pasi u/s 307/394/397/34 IPC and u/s 25/27/54/59 Arms Act.
3. After compliance of Section 207 Cr.P.C., the case was committed to Sessions Court. Charge under Section 120 FIR No. 561/04; State Vs. Subhash @ Sat Prakash Etc. Page 4 of 52 B/394/395/397/34 IPC and 307/120B/34 IPC was framed against accused Subhash @ Satprakash, Haridwar @ Chacha, Bablo Pasi and Jiya Lal and separate charge u/s 216A IPC was also framed against accused Jiya Lal to which they all pleaded not guilty and claimed trial. After the arrest of accused Pintoo Pasi @ Sunil Pasi, separate charge u/s 394/395/397/120B/34 IPC and u/s 307/120 B/34 IPC was framed against him to which he also pleaded not guilty and claimed trial.
4. In order to prove its case, Prosecution examined 18 witnesses. Statements of accused were recorded u/s 313 Cr. P. C. wherein they denied all the allegations made against them. The accused Subhash @ Sat Prakash, Babloo @ Pasi, Jiya Lal and Pintoo Pasi did not opt to lead evidence in their defence. Accused Haridwar @ Chacha opted to lead evidence in his defence and examined DW1 Kalpnath.
5. I have heard the Ld. defence counsel and the Ld. APP for the State and have perused the entire records.
6. Let us firstly discuss about the legal position under the aforesaid sections of IPC. Section 394 IPC speaks of two distinct classes of personsthose who actually caused hurt and those who do not but are jointly concerned in the commission of the offence of FIR No. 561/04; State Vs. Subhash @ Sat Prakash Etc. Page 5 of 52 robbery. The guilty act of one is imputed to all who are joint with him provided the act is done in committing the offence of robbery. Section 395 IPC prescribes punishment for simple dacoity, section 397 for dacoity with attempt to cause death or grievous hurt. There is no distinction between a dacoity and an attempt to commit one. The provisions of section 397 IPC do not create any new substantive offence as such but merely serve as complementary to sections 392 and 395 IPC by regulating the punishment already provided for dacoity by fixing a minimum terms of imprisonment when the dacoity committed was found attendant upon certain aggravating circumstances viz., a deadly weapon, or causing of grievous hurt or attempting to cause death or grievous hurt. For that reason, no doubt, the provision postulates only the individual act of the accused to be relevant to attract section 397 IPC and thereby inevitably negates the use of the principle of constructive or vicarious liability engrafted in section 34. In order that section 307 should be attracted, it is necessary to establish that if the victim would have met his death, the offence would have been one under section 302. There must be some overt act combined with evidence of mens rea. The burden is always on the Prosecution to prove, first the actus reus i.e. the accused had done something which in point FIR No. 561/04; State Vs. Subhash @ Sat Prakash Etc. Page 6 of 52 of law marked the commission of offence and secondly the mens rea i.e. in taking this step, he was inspired by the intention to go on to reach a definite objective which would constitute a specific offence. The accused must do an act with such a guilt intention and knowledge and in such circumstances that but for some intervening fact the act would have amounted to murder in the normal course of events. The intention or knowledge must be such as is necessary to constitute murder. Without this, there can be no attempt to murder. The section may apply even if no hurt is caused. The causing of hurt is merely an aggravating circumstance and it cannot, therefore, be reasonably argued that unless an injury sufficient in the ordinary course of nature to cause death is inflicted on the victim, the intention contemplated by this section cannot be presumed. All that is necessary to be established is that intention with which the act is done and if once that intention is established, the nature of the act will be immaterial.
7. Ld. Counsel for accused has argued that there are contradictions in the statements of PWs. The accused were arrested on the basis of disclosure statements. No recovery was made from the accused. No TIP was conducted. The witness on behalf of the Prosecution has not stated anything about accused FIR No. 561/04; State Vs. Subhash @ Sat Prakash Etc. Page 7 of 52 Pintoo Pasi @ Sunil. There is no description of the accused. Therefore, the description of the accused is very material. Accused Jia Lal was not present at the place of occurrence, therefore, the accused Jia Lal has no role in the occurrence of the offence. No public person was present at the spot. The photographs of the accused were already shown to PW4 Krishan Lal by the IO. The accused persons have been falsely implicated and they were lifted from their houses. Ld. Counsel for the accused further argued that the injury which was sustained by PW5 Krishan Lal could have been happened by any other act and not by the gun shot. Further, the disclosure statements of the accused have been recorded by the IO himself. PW9 HC Vijay Kumar, PW12 SI Sudhir and PW13 Ct. Narsh did not join the investigation and even the accused persons were not arrested as shown on record. No pistol was recovered. All the writing work was done and prepared in the PS and thereafter PW12 assigned them at the instance of Inspector K.S. Bhatnagar. It is also argued that the signatures of the accused were obtained on blank papers which were converted into various memos including the alleged disclosure statement. Further, no case property was deposited in the Malkhana by the IO and even false entries have been made in the register at the instance of IO. The whole story of FIR No. 561/04; State Vs. Subhash @ Sat Prakash Etc. Page 8 of 52 the Prosecution is a concocted story to falsely implicate all the accused in this case. The Ld. Defence counsel, in support of his arguments, has relied upon the judgements reported as Badruddin Rukonddim Karpude and others Vs. State of Maharashtra, 1981 CRI.L.J. 729; Jainul Haque Vs. State of Bihar, AIR 1974 SC 45; Suraj Mal Vs. The State (Delhi Administration), AIR 1979 SC 1408; Wakil Singh and others Vs. State of Bihar, AIR 1981 SC 1392; Tahir Mohammad, Kamad Girendra Singh and another, Badri Singh and others Vs. State of Madhya Pradesh, AIR 1993, SC 931; Mohanlal Gangaram Gehani Vs. State of Maharashtra, AIR 1982 SC 839; State Vs. Ramesh, 2000 CRI.L.J 2855; Ramzan Mbwana Mazuwa and others Vs. State of Maharashtra, 1998 CRI. L. J. 3547; and Danu alias Biswajit Pattanaik and others Vs. State of Orissa, 1996 CRI. L. J. 2107.
8. Whereas, the Ld. APP for State has argued that PW4, PW5, PW10 and PW14 are the material witnesses on behalf of the Prosecution. Accused Haridwar @ chacha stopped the scooter of PW4 Krishan Lal by parking a scooter in front of him. Accused Babloo Pasi fired at PW4 and bullet passed through the body of PW4. Accused Subhash @ Satyaprakash placed a knife on the handle of the scooter and accused Jia Lal was standing at some FIR No. 561/04; State Vs. Subhash @ Sat Prakash Etc. Page 9 of 52 distance and kept observing the incident. Therefore, PW4 has sustained injuries. All the accused snatched away the bag of approximately Rs. 3 lacs from the hands of PW4. Accused Haridwar @ Chacha kept holding his scooter in front of the scooter of PW4. The Ld. APP for State has further argued that after injury sustained by bullet, PW4 became unconscious and thereafter remained in the hospital for about 18 days and even his further treatment was continued. PW5 Dr. S. N. Mishra who examined the injured PW4 proved his MLC as Ex. PW5/A which reveals the alleged history of one gun shot injury and stab injury. Ld. APP for the State has further argued that the accused Haridwar @ Chacha refused to participate in the TIP. So far as accused Subhash and Babloo are concerned, they were identified by the witness. The accused also fired towards PW9 HC Vijay Kumar by country made pistol near Phatak No. 7, Kela godown, Shalimar Bagh on 12082004. And there the accused Haridwar @ Chacha was apprehended by the raiding team. Country made pistol as well as knife were also recovered. PW4 identified all the accused. Even at the first time, identification of the accused is made in the court, yet it is correct. Ld. APP for the State, in support of his arguments, has relied upon the judgement reported as Kalam @ Abdul Kalam (Md.) FIR No. 561/04; State Vs. Subhash @ Sat Prakash Etc. Page 10 of 52 Vs. State of Rajasthan, 2008 IV AD (SC) 453; Bhagwan Dass Vs. State (NCT) of Delhi, 2011 III AD (CRI.)(SC)157; Paramjeet Singh @ Pamma Vs. State of Uttarakhana, AIR 2011 SC 200; State of UP Vs. Krishna Master & ors, 2010 CRI. L. J. 3889; Dhanaj Singh alias Shera and others Vs. State of Punjab, AIR 2004 SC 1920; and Khujji alias Surendra Tiwari Vs. State of MP, 1991 CRI.L.J. 2653(1).
9. In view of the above arguments of the Ld. Defence counsel and the Ld. APP for the State as well as the judgements relied upon by them, let us examine the evidence led in this case whether the accused have not committed the offence as per the charge framed against them and whether they have been falsely implicated in this case. PW1 Moti Lal deposed that on 04082004 Munim Kishan Lal was the pillion rider on his scooter and they were going towards Azadpur Mandi. He further deposed that his scooter was stopped by 56 persons and thereafter Kishan Lal was fired upon. Right then, he board down in order to escape and raised an alarm and called Hasanand. PW1 further deposed that he was not able to see or identify all the assailants as he had not seen them as he was attempting to save his life. He further deposed that he did not see the accused persons taking away bag of Hasanand which was carried by Kishan Lal. PW1 was resiling from his previous FIR No. 561/04; State Vs. Subhash @ Sat Prakash Etc. Page 11 of 52 statement, therefore, with the permission of the Ld. Predecessor court, Ld. APP for the State was allowed to crossexamine PW1. PW1 admitted that police seized fired cartridge from the spot and at that time he signed Ex. PW1/B bearing his signatures at point A. PW1 further admitted that police also seized blood from the spot vide memo Ex. PW1/C bearing his signatures at point A. After the arrest of accused Pintoo Pasi, PW1 Moti Lal was recalled for his examination. PW1 deposed that on 04082004, he was going to Azadpur Subzi Mandi on two wheeler scooter bearing no. DDK611. He was driving the scooter and Kishan Lal, Munshi of Hasanand, was sitting on the pillion seat and he was taking Kishan Lal to Mandi at the request of Hasanand. When they reached at the mandi of coconuts, he heard the noise of firing of bullet from behind. He immediately bowed down to save himself. The bullet hit Kishan Lal. He deposed that he does not know who fired the bullet. Kishan Lal was carrying a bag of Hasanand and 810 people snatched the bag from Kishan Lal and fled away. He deposed that he cannot identify those persons. He further deposed that Kishan Lal was also inflicted knife blow but he did not see anyone inflicting the knife. PW1 was resiling from his previous statement, therefore, with the permission of the Ld. Predecessor court, Ld. APP for the State was FIR No. 561/04; State Vs. Subhash @ Sat Prakash Etc. Page 12 of 52 allowed to crossexamine PW1. PW1 admitted that police seized fired cartridge from the spot and taken the same into possession vide seizure memo Ex. PW1/B. PW1 also admitted that police also seized blood from the spot vide memo Ex. PW1/C which also bear his signature at point A. PW1 further admitted that Ex. PW1/D and E bear his signatures at point A.
10. PW2 Hasanand deposed that on 04082004 his clerk Kishan Lal was sent with Moti Lal who was going on scooter to Azadpur Mandi. Kishan Lal was carrying a bag containing cash of Rs. 3 lacs. After about two minutes, Moti Lal came on running and told him that Kishan Lal was shot and the robbers had taken away the bag containing cash. He further deposed that he with the help of Moti Lal removed his munim Kishan Lal to hospital. Robbers were escaped from the spot with cash when he reached there. He deposed that he was not able to identify the currency notes which were robbed as the same did not have any particular identification mark vide which the same may be identified by him. After the arrest of accused Pintoo @ Pasi, PW2 was recalled for examination afresh. PW2 deposed that he does not remember the date but in the month of August 2004, his Munshi Kishan Lal was going to Azadpur Mandi from Phad with Moti Lal on his scooter. Kishan Lal FIR No. 561/04; State Vs. Subhash @ Sat Prakash Etc. Page 13 of 52 was carrying a bag containing cash of Rs. 3 lacs. Moti Lal was driving the scooter and Kishan Lal was sitting on the pillion seat. After about two minutes, Moti Lal came running and informed him that Kishan Lal was shot by the robbers and that the robbers had taken away the bag containing cash from him. He rushed Kishan Lal to Pentament Hospital. Robbers had already escaped when he reached the spot. In response to a leading question put by Ld. APP, th the witness admitted that date of incident was 4 . PW3 HC Rajbir Singh deposed that on 04082004 he was posted as Duty Officer at PS Jahangirpuri and recorded FIR no. 561 Ex. PW3/A (OSR) on the basis of rukka brought by Ct. Paramvir sent by SI Sanjay Dahiya.
11. PW4 Krishan Lal deposed that during the month of Sawan, in the year 2004, he was working as cashier with BFC (Balaji Fruit Company) at shop no. 621622, Azadpur Fruit Mandi, New Subzi Mandi, Azadpur. During those days, BFC was dealing in Mausami fruit. He further deposed that he was bringing cash worth Rs. 3 lacs on the scooter as a pillion of "Masakhor" (trader who buys fruits from wholeseller and sells it to retailers) who was coming from Fruit Mandi, Subzi Mandi in New Subzi Mandi, Azadpur itself. The witness claimed that he can identify the said masakhor but was not able to recollect his name and he is also witness in this case. The FIR No. 561/04; State Vs. Subhash @ Sat Prakash Etc. Page 14 of 52 said masakhor had met him in the course of business dealings and informed him that he had testified before the court on 23022005 in this case. The said cash of Rs. 3 lacs included sale proceeds of that very day as well as some collection from earlier sale. He deposed that he had left fruit mandi at about 4 am with aforesaid amount of cash for Subzi Mandi, Azadpur and at about 4:10 am, when he was at a short distance from the gate of fruit mandi on his way to New Subzi Mandi, accused Haridwar @ Chacha stopped his scooter by parking a scooter in front of him and at that time, another small boy was also sitting on the scooter but the said small boy was not present in the court. He further deposed that he instantly asked masakhor driver, on whose scooter he was a pillion, to call the seth whose money he was carrying and that before the masakhor could cover a distance of about 20 feet, accused Babloo Pasi fired at him and the bullet passed through his body and accused Subhash @ Satya Prakash had placed a knife on the handle of his scooter and accused Jiya Lal kept observing at some distance and soon after he sustained injuries.
12. PW4 further deposed that all the four accused persons, except accused Haridwar @ Chacha, scuffled with him and snatched away his bag having cash approximately Rs. 3 lacs. FIR No. 561/04; State Vs. Subhash @ Sat Prakash Etc. Page 15 of 52 Accused Haridwar @ Chacha kept holding him by putting his scooter in front of his scooter. He further deposed that it was a gang of 7/8 persons who had robbed him of the aforesaid amount. He came to know about the names of accused persons on that day in the court when the court had asked the names of accused persons from them during his testimony. He further deposed that as a matter of fact he had identified the accused by face categorically on that day in the court. He further deposed that he can identify his clothes which he was wearing on the date of occurrence and which were taken in possession at the hospital at the time of his treatment. One sealed pullanda sealed with the seal of PMH containing a wrapper around it with court seal was desealed and from the same, one katta, one payjama, one kachha, and one baniyan were taken out. The witness identified the same as belonging to him out of which kurta Ex. P1, baniyan Ex. P2, Payjama Ex. P3 were blood stained and Kachha Ex. P4, Kurta Ex. P1 and Baniyan Ex. P2 bore the cut marks on account of bullet injuries. PW4 further deposed that he remained admitted in the hospital for approximately 1718 days and that he was still under treatment. The robbed cash included bundles of currency notes of Rs. 10, Rs. 50, and also of Rs. 100/ and also loose currency notes of Rs. 500 and of other FIR No. 561/04; State Vs. Subhash @ Sat Prakash Etc. Page 16 of 52 denominations. He further deposed that he is an illiterate person and cannot identify the robbed currency notes even if shown to him. He further deposed that occurrence had taken place in such a manner as if the accused persons were already having some information that he was carrying a big amount of cash in the bag.
13. PW5 Dr. S. M. Mishra, consultantsurgeon deposed that on 04082004 he medically examined injured Krishan Lal, 60 years male with alleged history of one gun shot injury and stab injury. He prepared the detailed MLC Ex. PW5/A bearing his signatures at point A. He opined the injuries as dangerous caused by gun shot and sharpedged weapon. PW6 Ct. Paramvir Singh deposed that on 04082004 upon receiving DD no. 21, he along with SI Sanjay Dahiya reached Fruit Mandi, Azadpur where IO recorded statement of one Moti Lal and as per directions of SI Sanjay, he took rukka to PS Jahangirpuri and got the FIR lodged. A copy of FIR with original rukka was given back to the IO by him. PW7 Ct. Dharmender deposed that on 11082004, accused persons namely Babloo Pasi, Sat Prakash and Haridwar (present in the court) were arrested in case FIR no. 683/04 of PS Shalimar Bagh, Delhi. Their disclosures were recorded vide memo Ex. PW7/A to Ex. PW7/C. In pursuance of disclosures made by accused Babloo, a sum of Rs. 4300/ were FIR No. 561/04; State Vs. Subhash @ Sat Prakash Etc. Page 17 of 52 also recovered vide memo Ex. PW7/D.
14. PW8 Ms. Archana Sinha, MM, Delhi deposed that an application for conducting TIP of accused Haridwar, Subhash and Babloo was marked to her and was placed on 16082004 before her on which day the TIP was fixed by the Link Magistrate for 20082004. Accused Haridwar was produced from the custody of jail no. 3 and was identified by Sh. Atul Sharma, Asstt. Supptt. Jail no. 3. The accused refused to participate in the TIP. He was explained that an adverse inference may be drawn for his identification during trial if he refuses to join the TIP. Despite the caution, accused Haridwar refused to participate in the TIP proceedings. His statement was recorded and the proceedings are Ex. PW8/A. On the same day, accused Subhash was produced from custody of jail no. 1. He was identified by Sh. R. K. Sharma, Asstt. Superintendent, Jail no. 1. Nine sample inmates were produced who were of similar description for mixing them with the accused. Witness Moti Lal identified accused Subhash correctly during TIP proceedings which are as Ex. PW1/D. Accused Babloo was also produced on the same day from custody of jail no. 3 and was identified by Sh. Atul Sharma, Asstt. Superintendent, Jail no.3. For this accused also, nine separate inmates of similar description FIR No. 561/04; State Vs. Subhash @ Sat Prakash Etc. Page 18 of 52 were produced for mixing them with the accused. Witness Moti Lal identified the accused correctly during TIP proceedings which are Ex. PW1/E.
15. PW9 HC Vijay Kumar deposed that on 12082004 he was posted at PS Shalimar Bagh and on that day, at about 11 pm, he was called by SHO Inspector K. S. Bhatnagar and briefed him and other officials that three suspected persons would come in the jhuggi of Kela godown Phatak No. 7, Shalimar Bagh and they have committed robbery in the area of Delhi many times. Under the supervision and control of Inspector K. S. Bhatnagar, three groups of raiding party were organized. PW9 was a member of raiding party of Inspector Bhatnagar, SI Sudhir, Ct. Naresh, Ct. Dharmender and secret informer were also with him. Another party was also organized under the supervision of Addl. SHO K. S. Negi comprising of SI Bhagwan Dass, Ct. Rampal and third party was organized under the supervision of HC Mahender comprising Ct. Rakesh. They all police officials proceeded from PS Shalimar Bagh at about 10:50 pm by Gypsy and other vehicles and reached near Phatak No. 7, Kela Godown, Shalimar Bagh and they all took positions at the instance of supervising authority. At about 11:45 pm, three persons were seen coming from the side of Kela godown towards FIR No. 561/04; State Vs. Subhash @ Sat Prakash Etc. Page 19 of 52 Phatak No. 7. As soon as they received signal given by Incharge, they rushed towards three persons and nabbed them. PW9 saved himself when accused fired towards him and other police officers to kill with their respective countrymade pistols. One person having country made pistol was overpowered by SI Sudhir with the help of PW9 and others whose name came to his knowledge later on as Haridwar @ Chacha correctly identified by PW9 present in court. PW9 further deposed that one of them whose name came to notice as Babloo was overpowered by SI Bhagwan Dass with the help of Ct. Rampal. Other was also overpowered by HC Mahender with the help of Ct. Rakesh whose name came into knowledge as Satya Prakash and one open knife was also taken into possession from his possession. PW9 correctly identified all the accused persons.
16. Arms Act cases against accused Subhash and Babloo were started to investigate by SI Bhagwan Dass and HC Mahender separately. Main case was investigated by SI Sudhir against all three accused persons and in addition against accused Haridwar for offence u/s 25 Arms Act. PW9 remained busy in investigation of main case investigated by SI Sudhir. One live cartridge was also recovered from the right side wearing pant pocket of accused which was seized. All three accused persons were arrested in case FIR FIR No. 561/04; State Vs. Subhash @ Sat Prakash Etc. Page 20 of 52 no. 683/04. During the course of interrogation, all three accused persons made their disclosure statements in involvement of offence committed by them on 04082004 at about 4:45 pm in front of outer gate fruit mandi, Azadpur. PW9 identified the accused Haridwar @ Chacha, Satya Prakash and Babloo @ Pasi present in court. The disclosure statements of accused Babloo @ Pasi, Satya Prakash @ Prakash @ Subhash and Haridwar @ Chacha already Ex. PW7/A, Ex. PW7/B and Ex. PW7/C bear his signatures at points B respectively. The pointing out memos made by all three accused already Ex. PW12/B, seizure memo cum pointing out memo Ex. PW12/A with regard to accused Haridwar @ Chacha, pointing out memo and seizure memo Ex. PW7/D regarding accused Babloo @ Pasi bear his signature at points B respectively.
17. PW10 SI Narender Singh deposed that on 03022006 he was posted at ICPP, Vijay Vihar, PS Rohini. Accused Pintoo Pasi @ Sunil Pasi (correctly identified by the witness) was arrested by him in case FIR no. 104/06 u/s 307/353/186 IPC and 25/27 Arms Act, PS Rohini. Accused was interrogated by him in that case and accused Pintoo @ Pasi made disclosure statement regarding his involvement in the present case. Thereafter, PW10 gave information to the IO in this regard and he saw the original disclosure statement FIR No. 561/04; State Vs. Subhash @ Sat Prakash Etc. Page 21 of 52 from judicial file of case FIR no. 104/06 PS Rohini which was produced by the Ahlmad of the Court of Ld. ASJ, Rohini, as the same disclosure statement of the accused, which was recorded by him, photocopy of the same is Ex. PW10/A, which bears his signature at point A and accused signed the same at point X. (Original case FIR no. 104/06 seen and returned). He handed over the photocopy Ex PW10/A to ASI Vijender Singh of PS Jahangirpuri.
18. PW11 HC Sajjan Pal deposed that on 03022006 he was posted at PS Rohini and they were checking the passersby at Road no. 41, near Ganda Nala, Rithala for the purpose of anti snatching along with SI Satya Prakash, HC Ramesh, Ct. Sukhvir, Ct. Vinay Pal. At about 6:15 pm, accused Pintoo Pasi @ Sunil who was present in the court and whose name revealed during interrogation, came from Rithala side and after seeing them, accused tried to escape towards backside. On suspicion, accused Pintoo Pasi was overpowered by them and he fired towards the police party from his country made pistol. Thereafter, the country made pistol was snatched from his hand by SI Satya Prakash and his formal search was also taken by him and one live cartridge was recovered from the pocket of jacket of accused which he was wearing at that time. Accused was interrogated and he made FIR No. 561/04; State Vs. Subhash @ Sat Prakash Etc. Page 22 of 52 disclosure statement Ex. PW10/A regarding his involvement in the present case FIR no. 561/04 which bears his signatures at point B and pertaining to the recovery of country made pistol and live cartridge case FIR no. 104/06 u/s 307/353/186 IPC and 25/27 of Arms Act were registered at PS Rohini.
19. PW12 SI Sudhir deposed that on 12082004 he was posted at PS Shalimar Bagh. On that day, SHO received a secret information that three persons were staying at Kela godown, Shalimar Bagh and that they were involved in some incident in the area of PS Jahangirpuri. SHO of PS Shalimar Bagh Inspector K S Bhatnagar organized a raiding party comprising of himself, Addl. SHO K C Negi, SI Bhagwan Das, PW12, HC Rakesh, HC Mahender, informer and 3 constables. The SHO briefed them that those three persons would come at Kela Godown near Phatak No. 7 at about 11 pm. They reached at Phatak No. 7 at 10:50 pm. At about 11 pm three persons came near the phatak. They were identified by the informer. When they moved ahead to apprehend them, one of them fired at the police party. PW12 apprehended him. On inquiry, his name came to be known as Haridwar @ Chacha (correctly identified). The other two persons were apprehended by other members of raiding party. Their names were FIR No. 561/04; State Vs. Subhash @ Sat Prakash Etc. Page 23 of 52 Babloo Pasi and Subash, (the witness pointed out towards accused Babloo Pasi, present in court, as Subhash and accused Subhash as Babloo Pasi). Buttondar knives were recovered from the possession of accused Babloo Pasi and Subhash. On interrogation, all three accused persons so apprehended gave disclosure statements Ex. PW7/A to PW7/C regarding their involvement in case FIR no. 561/04 of PS Jahangirpuri (original disclosure statements filed in case FIR no. 683/04 PS Shalimar Bagh seen). Accused Haridwar @ Chacha led the police party to his shop at Mausmi Shed, Subzi Mandi, Azad Pur, Delhi from where he got recovered Rs. 11,200/. The currency notes in the denomination of Rs. 10, 20 and 50 were seized vide pointing out cum seizure memo Ex. PW12/A. Accused Babloo Pasi got recovered Rs. 4,300/ which were seized vide memo Ex. PW7/D (original seizure memo seen from the file of case FIR no. 683/04 of PS Shalmar Bagh). All the three accused were then produced in the court on the next day. The photocopies of relevant papers were handed over to IO of case FIR no. 561/04.
20. The Ld. APP for State, with the permission of Ld. Predecessor court, crossexamined PW12 and on the pointing out of Ld. APP, PW12 correctly identified the accused Babloo Pasi and FIR No. 561/04; State Vs. Subhash @ Sat Prakash Etc. Page 24 of 52 Subhash. PW12 deposed that all the three accused persons Babloo Pasi @ Bhola, Haridwar @ Chacha and Subhash @ Prakash @ Satya Prakash pointed out the place of incident i.e. Out gate, Fruit Mandi, Azad Pur or that a pointing out memo in this respect was prepared which is Ex. PW12/B (original pointing out memo seen from the file of case FIR no. 683/04 of PS Shalimar Bagh). PW12 further deposed that out of the recovery of Rs. 11,200/ from accused Haridwar @ Chacha, Rs. 9000/ were in the denomination of Rs. 10 each; Rs. 1200/ were in the denomination of Rs. 100 each and 47 notes were in the denomination of Rs. 20 each. No currency note in denomination of Rs. 50 recovered from accused Haridwar @ Chacha. The accused Haridwar @ Chacha got recovered the aforesaid amount from a polythene hanged on nail on a wall from his shop no. 1416B, Subzi Mandi, Azad Pur, Delhi. The accused Babloo Pasi @ Bhola got recovered Rs. 4300 from his jhuggi situated at phatak no. 7, Kela godown, Shalimar Bagh. The aforesaid amount which was took out by the accused from an iron box kept inside his jhuggi. PW12 deposed that 8 notes were in the denomination of Rs. 100 each; 50 notes were in the denomination of Rs. 50 each; 9 notes were in the denomination of Rs. 20 each and 82 notes were in the denomination of Rs. 10 each. One live FIR No. 561/04; State Vs. Subhash @ Sat Prakash Etc. Page 25 of 52 cartridge was also recovered from the right side pant pocket of accused Haridwar @ Chacha after recovery of country made pistol from him. PW12 deposed that he had forgotten the aforesaid facts due to lapse of time. PW12 identified the currency notes amounting to Rs. 4300/ produced by MHC (M) being recovered from accused Babloo Pasi and Rs. 11,200/. PW12 also identified one country made pistol and one live cartridge as Ex. PW12/X1 and PW12/X2 respectively.
21. PW13 Ct. Naresh deposed that on 11082004 he was posted at PS Shalimar Bagh. On that day, SHO, Inspector K S Bhatnagar received a secret information that three persons who were involved in many incidents were to reach at Kela godown. SHO then briefed Addl. SHO K C Negi, SI Bhagwan Das, SI Sudhir, HC Mahinder, HC Rajinder, Ct. Dharmender, Ct. Rampal and PW13. SHO constituted three teams of raiding party. They reached at Phatak No. 7 at about 10:50 pm. All the three police parties took separate positions. PW13 was in police party no. 1. The informer was also present with them in party no. 1. At about 11:45 pm, three persons came from the side of Kela godown. The informer, on seeing those persons, gave the signal by lighting the torch. At the instructions of Inspector K S Bhatnagar, all the three teams rushed FIR No. 561/04; State Vs. Subhash @ Sat Prakash Etc. Page 26 of 52 to apprehend those three persons. One of the three persons whose name later came to be known as Haridwar (correctly identified) fired at police party with a countrymade pistol but the bullet misfired. Police party no. 1 led by SI Sudhir Gulia, apprehended the accused Haridwar and recovered countrymade pistol from him. Accused Babloo Pasi (correctly identified) was apprehended by police party no. 2 and accused Satyaprakash @ Subhash (correctly identified) was apprehended by police no. 3. On the formal search of accused, buttondar knives were recovered from the pockets of accused Babloo Pasi and Subhash. SI Bhagwan Das conducted investigation with regard to recovery of knife from accused Babloo Pasi and HC Mahender conducted investigation with regard to recovery of knife from accused Subhash. On formal search of accused Haridwar, one live cartridge was recovered from the right pocket of his pant by SI Sudhir Gulia. PW13 further deposed that the investigation with regard to recovery of country made pistol and live cartridge from accused Haridwar was carried out by SI Sudhir Gulia and PW13 remained associated with him. On checking the pistol, one used cartridge was recovered. SI Sudhir Gulia prepared the sketch of the pistol, used and live cartridges. The country made pistol was kept in a cloth pullanda and was sealed with the seal of FIR No. 561/04; State Vs. Subhash @ Sat Prakash Etc. Page 27 of 52 SKG. Similarly, the used and live cartridges were also kept in separate cloth pullanda and sealed with the seal of SKG. PW13 was sent with rukka to PS for registration of FIR. After registration of FIR, he returned back at the spot and handed over copy of FIR and rukka to SI Sudhir Gulia. All the three accused gave disclosure statements Ex. PW7/A to PW7/C in his presence. Accused Haridwar then led the police party to shop no. 1416 at Mausmi Mandi, Subzi Mandi, Azad Pur, from where he got recovered Rs. 11,200/ from a polythene bag hanging on the wall on a nail which were in the shape of gaddis of Rs. 10 notes, some notes of Rs. 50 and Rs. 100. The currency notes were seized vide memo Ex. PW12/A. Accused Babloo Pasi then led the police party at his jhuggi at Kela Godown, near Railway Phatak No. 7 from where he got recovered Rs. 4300/ from an iron box which were seized vide memo Ex. PW7/D. Information was passed on to PS Jahangirpuri. All the three accused were brought to PS and case property was deposited in Malkhana. PW13 identified the currency notes of Rs. 11,200/ produced in a polythene bag by MHC (M) as Ex. PA (collectively) and currency notes of Rs. 4300/ produced by MHC (M) in an unsealed condition as Ex. PB (collectively) recovered from accused Babloo Pasi. In response to a leading question, PW13 FIR No. 561/04; State Vs. Subhash @ Sat Prakash Etc. Page 28 of 52 deposed that there was no currency notes of Rs. 50 denomination in the currency notes of Rs. 11,200/ got recovered from accused Hardwar @ Chacha.
22. PW14 SI Sanjay Kumar deposed that on 04082004, he was posted at PS Jahangirpuri. On that day, on receipt of DD no. 21, he along with Ct. Subhash and Ct. Paramvir reached at Outer Gate, Azadpur Mandi where a two wheeler scooter bearing no. DDK611 was parked. The scooter owner Moti Lal met him and he recorded statement of Moti Lal. He then prepared the rukka Ex. PW14/A and sent the same at PS through Ct. Paramvir. Crime Team was called at the spot. One fired bullet was found lying at the spot and he prepared the sketch Ex. PW14/B of the fired bullet. The fired bullet was then kept in a matchbox and a pullanda was prepared which was sealed with the seal of SD and was seized vide memo Ex. PW1/B. The blood lying at the spot was picked up and kept in a plastic container which was kept in a cloth pullanda and sealed with the seal of SD. The piece of tarcoal road having blood was broken and kept in a plastic container which was converted into cloth pullanda and sealed with the seal of SD. Similarly, one more piece of tarcoal road was broken as sample and kept in a plastic container which was also kept in cloth pullanda and sealed with the FIR No. 561/04; State Vs. Subhash @ Sat Prakash Etc. Page 29 of 52 seal of SD. All the three sealed pullandas then sealed vide memo Ex. PW1/C. He then prepared the site plan Ex. PW14/C on the pointing out of complainant. Ct. Paramvir returned back at the spot after registration of FIR and handed over copy of FIR and rukka to PW14. The scooter bearing no. DDK611 was seized from the spot vide seizure memo. After deputing the Constable Subhash at the spot, PW14 along with Ct. Paramvir went to Delhi Hospital where he came to know that injured had been shifted to Pantamed Hospital, Gujranwala Town. PW14 then went to Pantamed Hospital and collected the MLC of injured Kishan Lal who was declared unfit for statement by the doctor. PW14 then returned back at the spot and from there came at the PS with Ct. The exhibits were deposited in Malkhana. Statements of constables were recorded.
23. PW14 further deposed that on 11082004, statement of injured was recorded after he was declared fit. On 12082004, PW14 came to know that three accused Subhash @ Satprakash, Babloo Pasi @ Bhola and Haridwar @ Chacha were arrested in case FIR no. 683/04 u/s 307/186/353/34 IPC of PS Shalimar Bagh and were to be produced in Court. PW14 went to the court and interrogated the accused, Subhash, Babloo Pasi and Haridwar (correctly identified). With the permission of the court, they were FIR No. 561/04; State Vs. Subhash @ Sat Prakash Etc. Page 30 of 52 arrested in this case vide arrest memos Ex. PW14/D to PW14/F. Accused were produced in muffled faces in the court. Accused Zia Lal (correctly identified) was arrested on 17082004 from a jhuggi of Wazirpur Industrial Area vide arrest memo Ex. PW14/G. His personal search was conducted vide personal search memo Ex. PW14/H. PW14 filed an application for the TIP of accused Subhash @ Satprakash, Haridwar and Babloo Pasi. The carbon copy of the said application is Ex. PW14/I. The TIP proceedings were conducted by Ld. MM at Tihar jail. PW14 took the witness Moti Lal at Tihar Jail. Accused Haridwar @ Chacha refused to take part in TIP while the other two accused namely Babloo Pasi and Subhash @ Satprakash were identified by the witness. PW14 collected the copy of TIP proceedings. He obtained the NBWs of accused Pintoo Pasi, Rajan Pasi, Vinod, and Rajnath @ Nathe but they could not be arrested. He obtained process u/s 82/83 Cr. P. C. against them. After execution of process, they were declared PO by the court. Chargesheet was then prepared u/s 307/394/395/397/412/120/34 IPC and u/s 25/27/54 Arms Act. PW14 identified the fired bullet as Ex. P14/X1; plastic container containing blood as Ex. PW14/X2, plastic container having tarcoal piece having blood as Ex. PW14/X3 and the plastic container having sample tarcoal piece as Ex. FIR No. 561/04; State Vs. Subhash @ Sat Prakash Etc. Page 31 of 52 PW14/X4. In response to the leading question put by Ld. APP for State, PW14 deposed that he had seized the clothes of the injured at the hospital vide seizure memo Ex. PW14/J. He had obtained the NBWs and process u/s 82/83 Cr. P. C. of accused Mukesh Pasi who was also declared Proclaimed Offender. He had recorded the disclosure statement of accused Jia Lal after his arrest Ex. PW14/K. He had also collected the copies of seizure memos and the disclosure statement of accused Babloo Pasi, Satprakash @ Subhash, Haridwar @ Chacha recovered and recorded in case FIR no. 683/04 of PS Shalimar Bagh.
24. PW15 HC Vijay deposed that on 12082004, he was posted at PS Shalimar Bagh as MHCM. On that day, SI Sudhir, IO of the case FIR no. 683/04, PS Shalimar Bagh had deposited two pullandas sealed with the seal of SKG stated to have containing country made pistol and cartridge along with FSL form and one polythene containing Rs. 4300/ of denomination of Rs. 100 x 8, Rs. 50 x 50, Rs. 20 x 9, Rs. 10 x 82 and he also deposited one polythene label of Graviera Suiting containing Rs. 11,200/ in denomination of Rs. 10 x 900 ( 9 gaddies containing 100 currency notes in each gaddi), Rs. 100 x 12, Rs. 20 x 47 and Rs. 10 x 6. He made entry in register no. 19 at Sl. no. 2713 and photocopy of the FIR No. 561/04; State Vs. Subhash @ Sat Prakash Etc. Page 32 of 52 entry is Ex. PW15/A. On 24092004, on the instructions of IO, he handed over two sealed pullandas of country made pistol and cartridge and FSL Form to Ct. Raj Kumar for depositing the same at FSL Rohini, Delhi vide RC no. 145/21/04. After depositing the exhibits, Ct. Raj Kumar came back to PSD and handed over to him copy of receiving. Photocopy of RC is Ex. PW15/B (original register no. 19 and 21 seen and returned). PW16 ASI Pritpal Singh deposed that on 04082004, he was posted at PS Jahangirpuri as MHCM. On that day, SI Sanjay Kumar Dahiya, IO of case FIR no. 561/04, PS Jahangirpuri had deposited four pullandas sealed with the seal of SD and fifth parcel sealed with the seal of hospital Penta Mental Hospital through copy of seizure memo, in this regard, he made entry in register no. 19 at Sl. no. 3206 and copy of which is Ex. PW16/A (original register no. 19 seen and returned).
25. PW17 ASI Ramesh Chander deposed that on 03022006, he was posted at PS Rohini as Constable. On that day, he along with SI Satya Prakash, HC Sajjan Pal, Ct. Vinay Pal and Ct. Sukhbir were present at Rithala Road, near Ganda Nala, Road no. N41 at Antisnatching picket. At about 5:40 pm, HC Sajjan received secret information that a person namely Pinto Pasi would come in a short while from the side of Rithala and would go FIR No. 561/04; State Vs. Subhash @ Sat Prakash Etc. Page 33 of 52 towards Metro Station and he can be apprehended, if raided. On this information, SI prepared a raiding party with the accompanying staff and made request to 45 passersby to join the raiding party but none of them came forward to join and left without giving their names and addresses while seeking their personal excuses. At about 6:15 pm, one person was seen coming along side of ganda nala from the side of Rithala and secret informer pointed him and identified him as Pinto Pasi (correctly identified). After pointing out the accused, the secret informer left from there. After seeing the police party, the accused started walking back fast and on the instructions of the IO, they started running towards the accused and as soon as he and HC Sajjan Pal reached near the accused, the accused took out one country made pistol from his jacket and said "agar aage badhe to goli mar dunga". Thereafter, without fearing when they tried to step ahead, accused made fire upon them, however, the bullet could not hit him and HC Sajjan. The accused thereafter, started unloading the country made pistol to load another cartridge, PW17 and HC Sajjan apprehended him and SI Satya Prakash snatched the country made pistol from the hand of the accused. On checking the country made pistol, it was found to containing one empty cartridge (cartridge case) in the barrel of the FIR No. 561/04; State Vs. Subhash @ Sat Prakash Etc. Page 34 of 52 country made pistol. On search of accused, one live cartridge recovered from the right pocket of the jacket of accused. IO prepared a sketch of the countrymade pistol and cartridge. Thereafter, IO prepared a pullanda of same and sealed with the seal of SP. IO filled up FSL form and seized the pullanda while preparing the seizure memo. IO prepared rukka and handed it over to Ct. Sukhbir for getting the FIR registered at PS Rohini. At about 9:15 pm, SI Narender Kumar along with Ct. Sukhbir came at the spot and first IO handed over him accused along with sealed pullanda and memos. Second IO prepared site plan on the pointing out of first IO. SI Narender arrested the accused at about 10 pm and on interrogation, he recorded disclosure statement of accused. IO recorded his statement and after completing the investigation, they came back to PS and accused was retained in lock up and case property was deposited in Malkhana by the IO.
26. PW18 SI Vijender Singh deposed that on 07022006, he was posted at PP, DDA Flat, Jahangirpuri, PS Jahangirpuri. On that day, he received DD no. 10A Ex. PW18/A regarding PO accused Pintoo Pasi. He went to PP Vijay Vihar and met with SI Narender and collected documents pertaining to FIR no. 104/06, PS Rohini in which the accused was arrested by him. PW18 recorded the FIR No. 561/04; State Vs. Subhash @ Sat Prakash Etc. Page 35 of 52 statement of SI Narender. On 08022006, he moved an application Ex. PW18/B for production warrants of accused. On 10022006, accused was produced in the court from JC and he moved application Ex. PW18/C for his interrogation which bears his signatures at point A. He also made request to arrest the accused vide Ex. PW18/D and arrested the accused vide Ex. PW18/E and recorded disclosure statement Ex. PW18/F of accused. The accused was sent to JC. The witness identified the accused Pintoo Pasi in the court. On completion of investigation, on 28022006 the supplementary challan was put in the court.
27. DW1 Kalp Nath deposed that he is doing the business of fruits at Azad Put Mandi. He used to leave for his work at about 6-- 7 am and return back at about 910 pm. Accused Haridwar @ Chacha is residing as a tenant in his house for the last 1213 years. Haridwar Chacha used to do the business of vegetables at that time and presently he is doing the job of a rickshaw pullar. He could not recall the date and month but it is about 67 years ago, at about 1112 midnight, five persons in civil dress having good physique came to his house and knocked the door. They asked him about Haridwar and he told that Haridwar is residing on the first floor. They went there and told Haridwar that they are from police and FIR No. 561/04; State Vs. Subhash @ Sat Prakash Etc. Page 36 of 52 searched his house and the entire household articles were ransacked. They took away about Rs. 15,00016,000 cash from the house of accused Haridwar. Before leaving, they told that they were taking Haridwar for the purpose of making enquiries and he would be released on the next day. On the next day, wife of Haridwar went to the PS and on his return from work, he was told by her that Haridwar had been implicated in the present case.
28. During crossexamination, PW4 deposed that within a few minutes of the masakhor leaving PW4, he sustained bullet injuries and after sustaining the bullet injuries, he had been robbed of the cash and he became unconscious. The whole occurrence was over within a short time i.e. a few minutes. PW4 had identified all the four accused persons present in the court at the place of occurrence. PW4 further deposed in his crossexamination that accused Jiya Lal present in the court had stopped his scooter by parking a scooter in front of his scooter at a distance of hardly two feet. PW4 denied the suggestion that accused Jiya Lal was not present at the place of occurrence and he has been falsely implicated in this case or accused Jiya Lal had no role in the occurrence itself. At the request of Ld. Amicus Curiae, the witness was directed by the Ld. Predecessor Court again to identify the FIR No. 561/04; State Vs. Subhash @ Sat Prakash Etc. Page 37 of 52 accused persons present in the court by touching them after mixing them with other accused persons. The accused persons were ordered to be taken out of court earlier and then they were brought in the court along with other accused persons of different cases of the court. PW4 was then directed to point out the accused persons whom he had already identified before the Ld. Counsel for the accused persons. Thereafter, PW4 very carefully identified all the four accused persons in the Court whom he had already identified on that day and ambiguity with respect to the identity of the accused persons was over. PW4 was never shown photographs of any of the accused persons by the IO of this case. PW4 identified the accused persons in the court on the basis of his identification of the accused persons at the place of occurrence. PW4 denied the suggestion that he is wrongly identifying the accused persons in the court and that photographs of the accused persons were already shown to him so that he can identify them. PW4 further denied the suggestion that accused persons are not involved in this case at all and they have been falsely implicated in this case by lifting them from their houses.
29. During crossexamination, PW5 denied the suggestion that injury sustained by the injured Krishan Lal was possible by any FIR No. 561/04; State Vs. Subhash @ Sat Prakash Etc. Page 38 of 52 other cause other than gun shot. The wound of entry which surrounding charring over right flank i.e. from the back. PW6 in his crossexamination deposed that complainant Moti Lal was found present at the place of occurrence itself. The recording of proceedings etc. in connection with this case took place at the place of occurrence itself. When they had reached the occurrence there was a lot of rush at the place of occurrence but none of them was an eyewitness of the occurrence except the complainant Moti Lal. PW9 in his crossexamination deposed that disclosure statements of accused persons were recorded by the IO of his own or that the name of accused Pintoo Pasi was implicated falsely by the IO. PW9 had read his statement u/s 161 Cr.P.C. when the same was recorded. PW9 denied the suggestion that all the memos were prepared at the PS and he signed the same later on. PW9 was not known to the accused persons prior to the incident. PW9 denied the suggestion that the signatures of accused persons were obtained on blank papers which were later on converted into various memos including the disclosure statements. PW9 denied the suggestion that he had not joined the investigation as deposed or that the accused persons were not arrested in the manner as deposed. PW9 further denied the suggestion nothing was recovered from the FIR No. 561/04; State Vs. Subhash @ Sat Prakash Etc. Page 39 of 52 possession and at the instance of accused persons.
30. During crossexamination, PW12 denied the suggestion that the memos relating to the arrest of accused as well as other memos and writing work was done at PS Shalimar Bagh. PW12 further denied the suggestion that disclosure statements of accused persons were recorded at PS Shalimar Bagh. PW12 also denied the suggestion that he had not joined the investigation as deposed or that the accused persons were not apprehended in the manner as deposed. PW12 further denied the suggestion that all the writing work was done while sitting in the PS or he signed the same later on at the instance of Inspector K. S. Bhatnagar. PW12 denied the suggestion that signatures of accused persons were obtained on blank papers which were later on converted into various memos including their alleged disclosure statement. PW12 further denied the suggestion that nothing was recovered from the possession or at the instance of accused as deposed or that the alleged case property has been planted upon the accused persons in order to falsely implicate the accused persons in the present case.
31. PW13 in crossexamination deposed that the writing work was done at the spot. The memos qua accused Hardwar @ Chacha were prepared by SI Sudhir Gulia. He went with rukka at FIR No. 561/04; State Vs. Subhash @ Sat Prakash Etc. Page 40 of 52 1:15 am night and returned back at about 2:15 am night with FIR. IO had prepared the site plan of the place of recovery at the jhuggi. The seizure memos were prepared at the place of recovery. Both memos were prepared by SI Sudhir Gulia. PW13 denied the suggestion that both memos were prepared in different writing and therefore prepared by different persons. PW13 denied the suggestion that he had not joined the investigation or that all memos were prepared at PS or that no recovery as deposed was made pursuant to the disclosure statement of accused. PW13 denied the suggestion that accused were forced to sign blank papers which were later on converted into disclosure statements and other memos.
32. PW14, in his crossexamination deposed that many public persons had collected when he reached at the spot. He had inspected scooter no. DDK611 found parked outside the gate of Azadpur Mandi. PW14 got prepared the sketches of the suspected persons on the statement of Moti Lal. PW14 deposed that Crime Team officials arrived at the spot at about 6 pm and left the spot after about 20 minutes. Rukka was sent to PS at about 6:45 pm and he received the copy of FIR at about 7:15 pm. PW14 deposed that site plan Ex. PW14/C was signed by complainant Moti Lal as FIR No. 561/04; State Vs. Subhash @ Sat Prakash Etc. Page 41 of 52 attesting witness. He denied the suggestion that all the writing work was done while sitting in the PS. PCR van had rushed the injured to Pantamed Hospital. He had visited Pantamed Hospital 45 times for recording statement of complainant. PW14 denied the suggestion that he had not arrested Jiya Lal in the present case or that Jiya Lal was kept in wrongful confinement since 06082004 and was later on implicated in the present case. PW14 denied the suggestion that nothing was recovered from the spot as deposed or that he had not visited the hospital for recording statement of complainant as deposed. PW15 and PW16 denied the suggestion that no case property was deposited in the Malkhana by the IO as deposed by them or that false entry have been made in register at the instance of IO. PW18 denied the suggestion that accused did not make any disclosure to him or that signatures of accused were obtained by him on blank papers which were converted into memos later on. PW18 further denied the suggestion that accused have been falsely implicated in this case. During crossexamination, DW1 deposed that the Subzi Mandi and Fruit Mandi are situated at different places. DW1 admitted that cash amount of Rs. 15,000/ to 16,000/ were not taken in his presence. DW1 further deposed in his cross examination that this fact was told to him by the wife of accused FIR No. 561/04; State Vs. Subhash @ Sat Prakash Etc. Page 42 of 52 Haridwar. DW1 volunteered that he was standing outside the room of Haridwar. DW1 also deposed in his crossexamination that he did not make any complaint to any superior officer regarding taking away of the accused Haridwar along with cash amount. DW1 further deposed in his crossexamination that he did not make any telephone call to the PCR or any other police official at that time.
33. In the present case, though there are some contradictions in the testimony of the said PWs yet these contradictions are minor contradictions and do not go to the root or core of this case. In this context, a reliance is placed upon the judgement reported as State of UP Vs. Krishna Master & ors. 2010 Cri. L. J. 3889, it was held by the Hon'ble Supreme Court that minor discrepancies, not touching core of case, cannot be ground for rejection of evidence in entirety. Further, so far as public witnesses joining the investigation are concerned, PW10 deposed in his crossexamination that he had asked several public persons to join the investigation at the time of arrest and the recovery of country made pistol from the possession of the accused in that case but none agreed to join the same and left the place due to their own problem. PW12 deposed in his crossexamination that IO had asked the public persons present there to join the proceedings. FIR No. 561/04; State Vs. Subhash @ Sat Prakash Etc. Page 43 of 52 However, PW12 volunteered that the public persons who were asked to join the proceedings, declined to join the investigation. It is relevant to mention here that the public persons are reluctant to become witnesses of criminal trial. Therefore, law is not that testimony of police officers is absolutely untrustworthy or that it can never be acted upon. It has been held in a catena of judgements by the Hon'ble Supreme Court and Hon'ble High Court of Delhi that merely because public witnesses are not joined in a case, the Prosecution case cannot be thrown out. In such circumstances, no benefit can be given to the accused for not joining of independent public witnesses. In this context, a reliance can be had upon the judgements reported as State of UP Vs. Anil Singh AIR 1988 SC 1998; Ambika Prasad & Anr. Vs. State 2002 (2) Crimes 63 (SC); Dr. Krishna Pal & Anr. Vs. State of UP 1996 (7) SCC 194. Further, there is no principle of law that without corroboration by independent witnesses, testimonies of police officials cannot be relied upon. The presumption that a person acts honestly applies as much in favour of police personnel as to the other person. Thus, it would not be a proper judicial approach to distrust and suspect the testimonies of police officials without good grounds. The statements made by the police officials as witnesses should be given same FIR No. 561/04; State Vs. Subhash @ Sat Prakash Etc. Page 44 of 52 weight as statements made by other witnesses. In this context, a reliance can be placed upon the judgments reported as Karamjit Singh Vs. State (Delhi Administration), AIR 2003 SC 1311 and Ritesh Kumar Vs. State of Goa, 2006 Cri. LJ (NOC) 61 (Bom).
34. Therefore, it is proved on record by way of oral testimony of PWs supported by documentary evidence and the case property that on 04082004, the accused Haridwar @ Chacha stopped the scooter of Krishan Lal/ PW4 aged about 60 years, accused Babloo Pasi fired at him and the bullet passed through his body, the accused Subhash @ Satya Prakash placed a knife on the handle of his scooter. One another boy was sitting on the scooter but he was not present in the court. All the four accused persons except accused Haridwar @ Chacha scuffled with PW4 and snatched away his bag having cash approximately Rs. 3 lacs. Accused Haridwar @ Chacha kept holding PW4 by putting his scooter in front of his scooter. PW4/ injured categorically stated it was a gang of 7/8 persons who had robbed him. PW4 identified the accused namely Subhash @ Satya Prakash, Babloo Passi @ Bhola, Haridwar @ Chacha and Jiya Lal. PW4 remained admitted in the hospital for about 1718 days. Statement of PW4 was recorded on 11082004 only after he was declared fit. PW5 Dr. S. M. Mishra proved on FIR No. 561/04; State Vs. Subhash @ Sat Prakash Etc. Page 45 of 52 record the MLC Ex. PW5/A of Krishan Lal/ PW4 who was medically examined by PW5 with the history of one gun shot injury and stab injury. PW5 opined the injuries of PW4 as dangerous caused by gun shot and sharp edged weapon. PW5 denied the suggestion that injury sustained by the injured Krishan Lal was possible by any other cause other than gun shot. Moti Lal/ PW1 has also supported the testimony of PW4 to the extent that Krishan Lal/ PW4 was the pillion rider on his scooter and they were going towards Azadpur Mandi on 04082004 and the scooter was stopped by 56 persons and thereafter Krishan Lal / PW4 was fired upon. Though, PW1 was present at the spot of incident but has not deposed about the other facts of the incident, reasons are best known to him and due to this reason, the Ld. APP was allowed by the Ld. Predecessor Court to crossexamine PW1. PW2 Hasanand also supported the versions of PW2 and PW4 that on 04082004, his clerk/ PW4 was sent with PW1 and PW4 was carrying a bag containing cash of Rs. 3 lacs. After about 2 minutes on 04082004, PW1 came to him running and informed him that PW4 was shot and robbers had taken away the bag containing cash. PW4 identified his bloodstained kurta, baniyan and payjama. Kachha, kurta and baniyan bore the cut marks on account of bullet injuries. PW6 got the FIR registered. FIR No. 561/04; State Vs. Subhash @ Sat Prakash Etc. Page 46 of 52 PW7 proved the disclosure statements of accused Babloo Pasi, Satya Prakash and Haridwar as Ex. PW7/A to PW7/C. Recovery of currency notes, country made pistol, used and live cartridges and knife also proved by PW3. The blood lying at the spot was picked up, the pieces of tarcoal road having blood was also taken from the spot. Site plan was prepared on the pointing of complainant. The said scooter was also seized. The arrest and personal search of accused also proved by PW3 on record. Accused Haridwar refused to participate in TIP. During TIP, PW1/ Moti Lal identified accused Subhash and Babloo. The testimony of DW1 does not support the case of accused since neither the cash amount was taken in the presence of DW1 nor he made complaint to any senior police officer for taking away of Haridwar @ Chacha with cash amount and even DW1 did not make any PCR call in this regard. The accused Pintoo Pasi @ Sunil has not been identified by PW4/ injured. Even otherwise, the Prosecution has failed to prove that accused Pintoo Pasi @ Sunil was the coaccused in the commission of the offence in the present case. Therefore, benefit of doubt goes in favour of accused Pintoo Pasi @ Sunil.
35. In view of my aforesaid discussion, I am of the considered opinion that Prosecution has failed to prove its case FIR No. 561/04; State Vs. Subhash @ Sat Prakash Etc. Page 47 of 52 against the accused Pintoo Pasi @ Sunil, therefore, the accused Pintoo Pasi @ Sunil is acquitted. Accused Pintoo Pasi @ Sunil be released forthwith if not wanted in any other criminal case. However, the prosecution has been able to prove its case against the accused persons namely Subhash @ Satya Prakash, Babloo Pasi @ Bhola, Haridwar @ Chacha and Jiya Lal beyond reasonable doubt. I, therefore, hold accused namely Subhash @ Satya Prakash, Haridwar @ Chacha and Babloo Pasi @ Bhola, Jiya Lal guilty and convict them u/s 120B/394/395/34 IPC and 307/120B/34 IPC. I also hold accused namely Babloo Passi @ Bhola and Subhash @ Satya Pakash guilty and convict them u/s 397 IPC and accused Jiya Lal is also convicted for the offence u/s 216A IPC.
(YASHWANT KUMAR) ADDL. SESSIONS JUDGE:NW03:ROHINI:DELHI.
ANNOUNCED IN THE OPEN COURT ON 29032012 FIR No. 561/04; State Vs. Subhash @ Sat Prakash Etc. Page 48 of 52 IN THE COURT OF SH. YASHWANT KUMAR: ADDL SESSIONS JUDGE03: NW : ROHINI : DELHI SESSIONS CASE NO. 25/11 FIR No. 561/04 P.S. Jahangirpuri U/S: 307/394/395/397/ 120B/ 216A IPC State Versus (1) Subhash @ Satya Prakash s/o Birpal r/o vill. Ghatanpur, PS Bardha, Distt. Azamgarh, UP (2) Babloo Passi @ Bhola s/o Balchand r/o vill. Hathiya, PS Bardha, Distt. Azamgarh, UP (3) Haridwar @ Chacha s/o Udai Raj r/o Singhpur, PS Mehnagar, Distt. Azamgarh, UP (4) Jiya Lal s/o Girdhari Lal r/o jhuggi no. N28/C96 Chandra Shekhar Azad Colony, Wazirpur Industrial Area, Delhi FIR No. 561/04; State Vs. Subhash @ Sat Prakash Etc. Page 49 of 52 Order on Sentence
1. Arguments have been heard from Ld. Amicus Curiae as also from Ld. APP for State. Ld. Amicus Curiae has argued that convict Haridwar @ Chacha is aged 57 years of age and an uneducated person. He is married and have five children who are boys and all are unmarried. His eldest son, who works as labourer at Azadpur Mandi, has got married on 05062012. There is no previous involvement or conviction in any criminal case. He is only bread earner of his family and also has old aged father dependent on him. He has spent 3 years and 2 months in custody. On behalf of convict Subhash @ Satya Prakash, it has been submitted that he th is 33 years of age and 8 class pass. He has two children, one boy and one girl who are aged 5 and 3 years of age and are school going. Mother and wife are dependent on him. No previous involvement and no previous conviction. He has spent 4 years and around 3 months in custody.
2. On behalf of convict Babloo Pasi @ Bhola, Ld. Amicus Curiae has submitted that he is 32 years of age and married person and a labourer. He has two school going girl child. Wife, mother and children are dependent on him. There is no previous involvement or conviction in any other criminal case. He has spent 3 years and one FIR No. 561/04; State Vs. Subhash @ Sat Prakash Etc. Page 50 of 52 month in custody. On behalf of convict Jiya Lal, Ld. Amicus Curiae has submitted that he is 52 years of age. He is married and has two boys and one girl along with wife and there is no previous involvement or conviction in any other criminal case. He is diabetic and hernia patient and has been previously operated. The custody period of convict is about 2 months and 20 days.
3. The Ld. APP for the State has argued that all the convicts have been charged and convicted u/s 120B/394/395/34 IPC and 307/120B/34 IPC. Besides this, convicts Babloo Pasi @ Bhola and Satya Prakash have also been convicted u/s 397 IPC and convict Jiya Lal has also been convicted for the offence u/s 216A IPC. Therefore, mitigating circumstances are to be considered which depends case to case. Therefore, the convicts should be given maximum sentences as per law.
4. There is no reason why convicts should be awarded a sentence less than the minimum prescribed for the said offences. Nowadays, such crimes are being committed frequently which are required to be curbed, therefore, deterrent punishment is called for.
5. Considering the totality of facts and circumstances, the convicts namely Subhash @ Satya Prakash, Haridwar @ Chacha and Babloo Pasi @ Bhola and Jiya Lal are sentenced with 5 years FIR No. 561/04; State Vs. Subhash @ Sat Prakash Etc. Page 51 of 52 Rigorous Imprisonment u/s 394/34 IPC r/w 120B IPC; 7 years Rigorous imprisonment u/s 307/34 IPC r/w 120B IPC; 7 years Rigorous imprisonment u/s 395/34 IPC r/w 120B IPC. Convicts Babloo Pasi @ Bhola and Subhash @ Satya Prakash are further sentenced with 7 years Rigorous imprisonment u/s 397 IPC. Convict Jiya Lal is further sentenced with 3 years Rigorous Imprisonment u/s 216A IPC. All the convicts are fined a sum of Rs. 3,000/ each in default of payment of which they shall undergo 3 months SI. All the sentences shall run concurrently. Convicts shall get benefit of section 428 Cr. P. C. for the period during which they remained in custody during investigation/ trial. Copy of judgement and order on sentence be given to the convicts free of cost. File be consigned to Record Room with directions to preserve the case file with liberty to Prosecution to get the case revived on the arrest of accused who are already declared PO.
(YASHWANT KUMAR) ASJ/NW03/ROHINI/DELHI ANNOUNCED IN OPEN COURT ON 08062012 FIR No. 561/04; State Vs. Subhash @ Sat Prakash Etc. Page 52 of 52