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[Cites 17, Cited by 0]

Delhi District Court

State vs Arun Kumar And Ors. on 7 September, 2019

           IN THE COURT OF SH. AJAY PANDEY
       ADDITIONAL SESSIONS JUDGE, NORTH­WEST
                 ROHINI COURT: DELHI.



CNR No. DLNW­01­001405­2014



SC No. 52461/16
FIR No. 353/13
PS -    Keshav Puram
U/s ­ 395/397/307/341 r/w section 120B IPC and 25 & 27
Arms Act


State



                               Versus

1)          Arun Kumar                          (Expired)
            S/o Sh. Babu Ram
            R/o Khasra No. 258/271, Gali No. 4,
            Nala Road, Near Shamshan Ghat,
            Kapil Vihar, Village­Mukundpur,
            Delhi.

2)          Afsaroon Chaudhary                (PO)
            S/o Sh. Md. Idris
            R/o A­1/15, DLF Colony,
            Near Pappu Colony,

State Vs Arun Kumar and Ors.
FIR no. 353/13
PS - Keshav Puram                                           Page no. 1 of 36
             Ghaziabad, UP.
3)          Hemant @ Hanumant
            S/o Sh. Bhagwan Das
            R/o M­504, Shakurpur,
            Delhi.

4)          Imran @ Amit
            S/o Sh. Yusuf Khan
            R/o M­718, Shakurpur,
            Delhi.

5)          Salman @ Nanhe                          (Expired)
            S/o Lt. Munnawar
            R/o B­89, Sangam Park,
            Bharat Nagar, Delhi.


Date of Institution               :    10.03.2014
Date of Arguments                 :    02.09.2019
Date of Judgment                  :    07.09.2019



JUDGMENT:

­

1. During the pendency of case accused Arun Kumar and Salman @ Nanhe expired and proceedings against them were abated vide order dated 29.10.18 and 25.08.2014 respectively. Accused Afsaroon Chaudhary State Vs Arun Kumar and Ors.

FIR no. 353/13

PS - Keshav Puram Page no. 2 of 36 was declared proclaimed offender vide order dated 12.04.2017.

2. Brief case of the prosecution as per charge­sheet is that:­

a) On 10.11.2013 a PCR call was received vide DD No. 32A regarding admission of an injured in Sunder Lal Jain Hospital. The said DD was marked to ASI Ashok Kumar for necessary action. On receipt of DD no. 32A, ASI Ashok Kumar along with constable Virender reached Sunder Lal Jain Hospital. There they found one Salman @ Nanhe admitted in the hospital with alleged history of gun shot injury by a pillion on his motor bike near Prem Bari Bridge towards transport authority. Statement of injured could not be recorded as he was in pain at that time. Thereafter, ASI Ashok Kumar along with constable Virender reached Prem Bari Bridge and found one empty cartridge along with a cloth piece and rope. Crime team was called at the spot. Photographs of the scene of crime were taken by crime team. The empty cartridge, cloth piece and rope were seized and sealed by ASI Ashok Kumar. No eye­witness was found at the spot. In the State Vs Arun Kumar and Ors.

FIR no. 353/13

PS - Keshav Puram Page no. 3 of 36 meantime ASI Ashok received information vide DD no.35A that injured Salman is referred to Safdarjung Trauma Center.

b) Thereafter, ASI Ashok and constable Virender reached Safdarjung Trauma Center where the injured was found unfit for statement. In the hospital one suspected person was present near the injured who when inquired got puzzled and gave different replies one after the other regarding his presence and his association with injured. On interrogation name of said person was revealed as Arun Kumar. On suspicion said Arun Kumar was taken to police station. In the meantime two persons namely Harish Chand Gupta and Manish Gupta came to police station. They both gave their similar statements to the police. Harish Chand Gupta stated that he was running footwear shop at Nai Wala, Gurudwara Road, Karol Bagh. On 10.11.2013 his elder brother Sh. Bhupender Gupta came to his shop. He had given Rs.65,000/­ to Bhupender Gupta as Bhupender had come on his own car. At about 6.40 pm he along with his nephew Manish Gupta left his shop on his Activa scooty State Vs Arun Kumar and Ors.

FIR no. 353/13

PS - Keshav Puram Page no. 4 of 36 bearing No. DL 6S AH 7034. At about 7.15 pm, when they reached near railway bridge at Prem Bari Pul, three boys on motorcycle came from behind and caught hold of his nephew by collar. Thereafter they started abusing them. Harish Chand Gupta stopped his scooty on side of the road. One of those three boys caught hold of Manish and one boy showed pistol to Harish Chand Gupta and asked him to give whatever he had or else he would be shot. Third boy was on the motorcycle with ignition on. In the meantime two more boys came at scooty. One of those two boys stood behind Harish Chand Gupta. That boy was also carrying pistol. Second boy was on the scooty with ignition on. In the meantime one more boy at Apachi motorcycle came there. Harish Chand Gupta got scared. The boy who was standing in front of him took away his red and white colour bag on which Khatu Shyam was engraved. Thereafter, Harish Chand Gupta started running by raising his voice. One of the boys fired gun shot. Thereafter, all of those boys ran away from there. Harish Chand Gupta noticed the number of one motorcycle as 8013. Harish Chand Gupta and Manish State Vs Arun Kumar and Ors.

FIR no. 353/13

PS - Keshav Puram Page no. 5 of 36 also ran away on scooty towards Prem Bari Pul. On their way near Punjab Kesari Building they saw one boy was lying on the road. Since they were scared, they left that place.

c) During investigation information was received from the hospital that fired bullet was removed from the body of injured Salman after operation. Constable Narender was sent to Safdarjung Trauma Center. Site plan was prepared at the instance of Harish Chand Gupta and Manish Gupta. Both the complainants also identified suspect Arun Kumar as the person involved in the incident. Thereafter Arun Kumar was interrogated. His disclosure statement was recorded whereby he confessed his involvement in the present incidence. He also disclosed that other accused persons namely Hemant, Afsaroon, Salman and Imran were also involved in the incidence. Accused Afsaroon fired gun shot which hit accused Salman. Accused Arun took accused Salman to Sunder Lal Jain Hospital in autorikshaw. Thereafter, he came to know that accused Salman has been shifted to Safdarjung Trauma Center.

State Vs Arun Kumar and Ors.

FIR no. 353/13 
PS - Keshav Puram                                                  Page no. 6 of 36
                     d)         During investigation blood stained clothes of

accused Arun were collected by ASI Ashok. Scooty of complainant was taken into possession. Supplementary statement of witnesses were recorded. Pointing out memo of the spot was prepared at the instance of accused Arun Kumar. Remaining accused persons were searched but they could not be traced.

e) Thereafter, further investigation was handed over to SI Umesh Rana. During investigation PC remand of accused Arun Kumar was obtained. During PC remand accused Arun Kumar got recovered motorcycle no. DL 8S AM 8013 make Bajaj pulsar which was used in commission of crime. During investigation on 18.11.2013, accused Afsaroon Chaudhary was apprehended on the identification of accused Arun Kumar. He was interrogated and arrested in the present case. His disclosure statement was recorded whereby he confessed his involvement in the present case. At the instance of accused Afsaroon Chaudhary, motorcycle no. UP 17E 9252 make Apache yellow colour was recovered. Pointing out memo of the place of occurrence was prepared at the State Vs Arun Kumar and Ors.

FIR no. 353/13 
PS - Keshav Puram                                                  Page no. 7 of 36
           instance of accused Afsaroon.
                    f)         During investigation, on 19.11.2013, on the

identification of accused Afsaroon, accused Hemant @ Hanumant and Imran @ Amit were apprehended. They were interrogated and arrested in the present case. Their disclosure statements were recorded whereby they also confessed their involvement in the present case. Thereafter, accused Hemant got recovered one Auto pistol 7.65 mm from a black colour bag kept in the almirah in his room. The said pistol was found loaded with two live cartridges. The said pistol was used by accused Afsaroon. Sketch of the pistol was prepared and the same was seized and sealed. Thereafter, accused Imran got recovered one 9mm pistol which he was carrying at the time of robbery from below the mattress on the floor of his room. The said pistol was found loaded with eight live cartridges. Sketch of the pistol was prepared and the same was seized and sealed. Thereafter, SI Umesh Rana also recovered one paper spray, body guard black colour, Dr. Tape, ropes, plastic bottle on which doctor tape was wrapped and two face State Vs Arun Kumar and Ors.

FIR no. 353/13

PS - Keshav Puram Page no. 8 of 36 masks. Both accused persons also got recovered the lunch box of complainant. Both accused persons also got recovered two knives out of which one was dagger and other was button dar, from the shelf above the almirah placed in the room. They also got recovered house breaking tools i.e. iron rods and 07 live cartridges from the upper shelf of almirah. The said articles were seized and sealed by IO SI Umesh Rana. Both accused persons also got recovered the scooty bearing no. DL 3S CK 1944 of white colour which was used by accused persons in committing the offence. Thereafter, one Scorpio car having number plate DL 4CM 1159 was recovered at the instance of accused Hemant regarding which he disclosed that he had stolen the said car from Shahibabad Road, Ghaziabad, UP along with Imran @ Amit and Afsaroon and its original number is MH 11 AW 0787.

g) Thereafter, all accused persons were interrogated in detail and they disclosed their involvement in various other cases. Their supplementary statements were recorded. Accused Hemant and Imran refused for their TIP. Their PC remand was taken. They State Vs Arun Kumar and Ors.

FIR no. 353/13

PS - Keshav Puram Page no. 9 of 36 took police party to H. No. E­145A, 2 nd Floor, Pandav Nagar, Delhi from where they got recovered nine different mobile phones without SIM cards. The said phones were seized and sealed.

h) Thereafter on 21.11.2013, search of case property i.e. red and white colour bag was made at the instance of accused Hemant, Imran and Afsaroom but the same could not be recovered. Co­accused Gulab, Vinod and Vikas were also searched but they could not be found. Thereafter, accused Afsaroon got recovered one countrymade pistol and three live cartridges from the wooden almirah kept in the room of his house at A­1/15, DLF Colony. He disclosed that the said pistol was with accused Hemant at the time of incident and lateron he took the same from accused Hemant. The pistol and cartridges were seized and sealed. Thereafter, accused Afsaroon got recovered six mobile phones which were kept in orange bag on top of wooden almirah. The said mobile phones were used by him.

i) Thereafter, on 30.11.2013 further investigation was handed over to SI Deepak Bharadwaj.

State Vs Arun Kumar and Ors.

FIR no. 353/13

PS - Keshav Puram Page no. 10 of 36 During his investigation accused Salman @ Nanhe was interrogated and arrested in this case. His disclosure was recorded whereby he confessed his involvement with other co­accused persons in commission of offence. TIP of case property was got conducted but complainant could not identify the case property. Accused Afsaroon refused to join the TIP. During investigation call detail record (CDR) of mobile number 8447611068 used by accused Arun Kumar, mobile no. 9015422721 used by accused Imran and Hemant and mobile no. 8506869843 used by accused Afsaroon Chaudhary were obtained. Analysis of CDR revealed that all accused persons were connected with each other. During investigation blood sample of accused Salman was obtained and the same was sent to FSL Rohini for matching it with the blood stained clothes of accused Arun Kumar, who took accused Salman to Sunder Lal Jain Hospital. Exhibits were sent to FSL for examination. After completion of investigation, charge­ sheet was filed in the court.

3. In view of allegations against accused persons namely Arun Kumar, Afsaroon Chaudhary, Hemant and State Vs Arun Kumar and Ors.

FIR no. 353/13

PS - Keshav Puram Page no. 11 of 36 Imran in the charge­sheet, charge u/s 120B read with section 395/397/307/341 IPC was framed against the accused persons. Further charge u/s 25 & 27 Arms act was framed against Imran @ Amit, Afsaroon Chaudhary and Hemant @ Hanumant. Accused persons pleaded not guilty and claimed trial.

4. In support of its case prosecution examined 23 witnesses.

5. PW­1 HC Vijay Kumar, was working as duty officer during the relevant date and time. He testified that on 10.11.2013 his duty hours were from 4 PM to 12 midnight. On that day at about 8.50 PM, he received information from wireless operator that one person Salman aged 22 years was admitted vide MLC No. 8812/13 in Sunder Lal Jain Hospital at Ashok Vihar. He recorded this information vide DD No.32A Ex.PW1/A in register no.2. He further testified that on the same day at 11.55 PM, SI Mahender Singh from PS Bharat Nagar gave information by telephone that injured Salman who was admitted in Sunder Lal Jain Hospital was referred to Trauma Centre from where he was again referred for State Vs Arun Kumar and Ors.

FIR no. 353/13

PS - Keshav Puram Page no. 12 of 36 Safdarjung Hospital. He recorded this information vide DD No.35A Ex.PW1/B in register no.2.

6. PW­2 Manish Gupta, is one of the victim/complainant in the present case. He testified that his maternal uncle was running a shoe shop at Nai Wala, Karol Bagh. He alongwith his maternal uncle Sh. Harish Chand Gupta were returning to their home from shop on scooty bearing registration no. DL6SAH­7034. They left Karol Bagh at 7 PM. At about 7.15 PM they reached near Prem Bari Pul, before Shalimar Bagh. His maternal uncle Harish Chand Gupta was driving the scooty and he was pillion rider. While the scooty was in moving condition, someone caught hold of his collar from his backside and started abusing him. He thought that it may be his friend who may be joking. He noticed that three persons on one bike were abusing him and pulled his collar forcibly. On this, his maternal uncle stopped the scooty on one side. There was 'Shor­Sharaaba' (noise) and one of those three persons took out one gun. On seeing the gun, he moved on one side. His maternal uncle asked those persons as to what was the matter and State Vs Arun Kumar and Ors.

FIR no. 353/13

PS - Keshav Puram Page no. 13 of 36 he also saw the gun in possession of one of those persons, he also stood on one side quietly. One among those three persons who came on bike kept the bike in start position, while the other picked up the bag containing his lunch box which was kept on the front foot rest of scooty, the third person fired the gun so that they may not raise alarm. All those three persons fled away from the spot on scooty. He and his maternal uncle were so scared that they immediately left the spot on their scooty after those persons had fled on their bike. When they proceeded from the spot, there was a red light at Prem Bari Pul. There they saw that on their left­hand side, those boys were standing, near Punjab Kesari Office. They had stopped their motorcycle near Punjab Kesari Office and were standing near motorcycle. One of those persons was not looking well and appeared to have received gun­shot injury. But duo did not stop or inform the police and left for their house.

7. PW­2 further testified that on the next day, it was holiday for their shop. He and his maternal uncle went to Police Station. They informed the police about the State Vs Arun Kumar and Ors.

FIR no. 353/13

PS - Keshav Puram Page no. 14 of 36 incident. The police officials told them that one person was apprehended by police officials of Bharat Nagar who had received gun­shot injury and they have to identify him. One person was shown to them by the police officials in the Police Station Keshav Puram. He told police officials that the persons who came to the spot were wearing helmets and he had only seen their eyes and some facial features through the helmet. The person sitting in the Police Station appeared to be same but he was not sure about it. He proved arrest memo and personal search memo of accused Arun Kumar as Ex.PW2/A and Ex.PW2/B respectively.

8. During his examination this witness categorically stated that accused Arun who was present in the court appeared to be the same who was seen by him in the Police Station and that he cannot say whether that person was present at the spot also as he could not see him clearly.

9. This witness was declared hostile by the prosecution on the point of identification of accused persons. During his cross­examination by learned Addl.

State Vs Arun Kumar and Ors.

FIR no. 353/13

PS - Keshav Puram Page no. 15 of 36 PP he did not identify any of the accused.

10. PW­3 SI Naresh Pal, was posted as SI in Crime Team, North­West District. He testified that on 10.11.2013, on receipt of call from control room, he alongwith PW­21 constable Siddharth i.e. Photographer, and constable Sandeep Finger Print Proficient, went to the spot near Prem Bari Bridge (Railway), towards Punjab Kesari, Road No.37, where he met IO ASI Ashok Kumar and SHO alongwith staff. At the spot, he found one rope, one dirty cloth and an empty case of cartridge on which 7.65 was written. He picked up the exhibits from the spot and prepared his report and handed over the same to the IO. He proved his report as Ex. PW3/A. The photographer took the photographs of the spot. No chance prints were found at the spot.

11. PW­4 Dr. Ajay Kumar, CMO, Sunder Lal Jain Hospital, proved the MLC of accused Salman prepared by him as Ex.PW4/A.

12. PW­5 Harish Chand Gupta, is the other victim/complainant in the present case. He testified that he was running foot­wear shop at Nai Wala, Gurudwara State Vs Arun Kumar and Ors.

FIR no. 353/13

PS - Keshav Puram Page no. 16 of 36 Road, Karol Bagh. On 10.11.2013 it was Sunday and his elder brother Sh. Bhupender Gupta came to his shop. At that time this witness was carrying Rs.65,000/­ which were given to his brother as he had come by his own car. At about 6.45­7 PM he left his shop alongwith his nephew Manish Gupta on his scooty bearing registration no. DL6SAH­7034. Around 7.15 PM they reached Prem Bari Pul and he was driving the said scooty and his nephew i.e. PW­2 Manish Gupta was pillion rider. Three persons came on bike and caught hold of his nephew by his collar. They started abusing. He stopped his scooty on one side of the road and asked those persons as to what was the reason. By that time he also saw pistol in hand of one of those persons. Then he stepped backwards. He dropped the key of his scooty and told them to take whatever they want. His bag which was kept on the footrest of the scooty was taken away by those persons. Meanwhile, one of those persons fired one bullet in air in order to scare public persons who had started approaching towards them after the signal turned green from the nearby red light. Thereafter, those persons sat on the motorcycle State Vs Arun Kumar and Ors.

FIR no. 353/13

PS - Keshav Puram Page no. 17 of 36 and scooty and proceeded towards Punjab Kesari Buidling. They were total five persons. When he and Manish were proceeding towards their house, they noticed that there was some trouble and those five persons were present after taking left turn at Prem Bari Pul whereas they were to proceed on the right side from Prem Bari Pul towards Shalimar Bagh. Since he was scared, he did not know what happened to those persons. He simply looked at them in order to find out whether they were following them or not. Thereafter, they went to their house since both of them were frightened. Thereafter, they discussed the incident with their family and then in the next morning, they went to Police Station Keshav Puram. When they went to Police Station Keshav Puram, they narrated the incident to the police officials but the police officials already knew their scooty number. He testified that he did not know as to how the police officials came to know their scooty number. He did not remember whether their statements were recorded in PS Keshav Puram. From the Police Station, they were sent to Karol Bagh by the police to find out if there is any State Vs Arun Kumar and Ors.

FIR no. 353/13

PS - Keshav Puram Page no. 18 of 36 CCTV footage covering them. Police also accompanied them to see those CCTV footages.

13. PW­5 also categorically testified that since lot of time has elapsed from the date of incident and also the offenders were wearing helmets, he cannot identify them. He further testified that one of the offenders was shown to him and PW­2 Manish in the Police Station Keshav Puram on the next day of the incident when they had gone to Police Station to lodge complaint. After seeing that person, he was not sure that the said person was one of the offenders or not but from the physical description and the portion of his face which could be seen inside the helmet, that person appeared similar.

14. This witness was declared hostile by the prosecution and was cross­examined by learned Addl. PP. Even on pointing out by learned Addl. PP, he did not identify either of accused to be involved in crime.

15. PW­6 ASI Devender Kumar, had mechanically inspected Activa Activa Scooty No. DL6SAH­7034 and Bajaj Pulsar Motorcycle No. DL8SAM­8013 on the applications Ex.PW6/A and Ex.PW6/B respectively State Vs Arun Kumar and Ors.

FIR no. 353/13

PS - Keshav Puram Page no. 19 of 36 moved by SI Umesh Rana. Both vehicles were fit for road test and there was no fresh damage on these vehicles. He proved his detailed report in this respect as Ex.PW6/C and Ex.PW6/D respectively.

16. He further testified that on 21.11.2013, he mechanically inspected TVS Apachy Motorcycle bearing registration no. UP17E­4252 and Honda Activa Scooty white colour bearing registration no. DL3SCK­1944 on the applications Ex.PW6/E and Ex.PW6/F respectively moved by SI Umesh Rana. Both vehicles were fit for road test and there was no fresh damage on these vehicles. He proved his detailed report in this respect as Ex. PW6/G & Ex.PW6/H respectively.

17. PW­7 Pawan Singh is the Nodal Officer, Idea Cellular Ltd. He had brought the summoned record i.e. the Customer application form in original of mobile telephone connection no. 8506869843. The said connection was obtained in the name of Mukesh s/o Gopal R/o H. No. 10, Gali No.7, E Block, Dayal Pur, Delhi. He proved the copy of CAF as Ex.PW7/A. He proved the call detail records of this mobile connection from 08.11.2013 State Vs Arun Kumar and Ors.

FIR no. 353/13

PS - Keshav Puram Page no. 20 of 36 to 12.11.2013 as Ex.PW7/B and certificate u/s 65 B of Indian Evidence Act as Ex.PW7/C.

18. PW­8 Rajiv Sharda is the Nodal Officer, Reliance Communication Ltd. He had brought the summoned record i.e. the Customer application form in original of mobile telephone connection no. 9015422721. The said connection was obtained in the name of Suraj Sah S/o Sh.Budaru Sah, R/o village Chichari, Aanchal, Katra, District Mujaffarpur. He proved the copy of CAF as Ex.PW8/A. He proved the call detail records of this mobile connection from 08.11.2013 to 12.11.2013 as Ex.PW8/B and certificate u/s 65 B of Indian Evidence Act as Ex.PW8/C.

19. PW­9 Israr Babu is the Alternate Nodal Officer, Vodafone Mobile Service Ltd. He had brought the summoned record i.e. the Customer application form in original of mobile telephone connection no. 8447611068. The said connection was obtained in the name of Md. Anjar S/o Sh. Mazrool, R/o H. No. 2, Building no. 39, Gali No. 9, Laxmi Nagar, Delhi­92. He proved the copy of CAF as Ex.PW9/A. He proved the call detail records of this State Vs Arun Kumar and Ors.

FIR no. 353/13

PS - Keshav Puram Page no. 21 of 36 mobile connection from 01.11.2013 to 12.11.2013 as Ex.PW9/B and certificate u/s 65 B of Indian Evidence Act as Ex.PW9/C.

20. PW­10 constable Narender testified that on 11.11.2013 he was posted in police station Keshav Puram and on that day, he carried one sealed plastic bottle which was sealed with the seal of CMOJPNATC AIIMS ND from Safdarjung Trauma Centre to the police station along with one sample seal. The said sealed bottle was stated to be containing bullet recovered from body of injured Salman. He handed it over to the Investigating officer ASI Ashok Kumar who took the same into possession vide a seizure memo.

21. PW­11 constable Devi Singh, testified that on 07.12.2013, he accompanied SI Deepak Bhardwaj to Babu Jagjeevan Ram Hospital, Jahangir Puri. In the hospital, one injured Salman @ Nanhe was found admitted. SI Deepak interrogated him in the hospital. Salman made a disclosure statement which was recorded by SI Deepak. Thereafter, Salman was arrested in the present case by SI Deepak vide arrest memo Ex.PW11/A and his personal State Vs Arun Kumar and Ors.

FIR no. 353/13

PS - Keshav Puram Page no. 22 of 36 search was also conducted vide personal search memo Ex.PW11/B.

22. PW­12 HC Raj Kumar, was working as MHC(M) during the relevant time. He proved the entries made in register no. 19 regarding deposition of case property.

23. PW­13 SI Umesh Rana, is the 2nd IO of the case.

24. PW­14 Sh. K.C. Varshney, Dy. Director cum Incharge, Regional Forensic Science Laboratory, Chanakyapuri, proved his ballastic report as Ex.PW14/A through which recovered firears were found working.

25. PW­15 Sukhbir is the registered owner of motorcycle bearing registration no. DL 8S AM 8013. He got released the motorcycle on furnishing superdaginama Ex.PW15/A.

26. PW­16 Rishi Pal, DCP (Land & Building Cell), PHQ, had given sanction u/s 39 Arms Act against accused Afsaroon Chaudhary, Hemant @ Hanumant and Imran @ Amit. He proved his sanction order as Ex.PW16/A.

27. PW­17 Sh. Sushil Anuj Tyagi, was working as Metropolitan Magistrate, Rohini Courts. He proved the State Vs Arun Kumar and Ors.

FIR no. 353/13

PS - Keshav Puram Page no. 23 of 36 application for conducting TIP of case property as Ex.PW17/A, TIP proceedings as Ex.PW17/B and application for providing copy of TIP proceedings to IO as Ex.PW17/C. He deposed that complainant failed to identify case property i.e. lunch box. He also conducted TIP of accused Afsaroon. However, accused Afsaroon refused to undergo TIP proceedings. He proved the TIP proceedings of accused Afsaroon as Ex.PW17/D and application for providing copy of TIP proceedings to IO as Ex.PW17/E.

28. PW­18 constable Virender had joined the investigation of the case.

29. PW­19 SI Deepak Bharadwaj, is the 3 rd IO of the case.

30. PW­20 SI Ashok Kumar is the 1st IO of the case.

31. PW­21 HC Sidharth, is the photographer in Mobile Crime Team. He proved the photographs of the spot as Ex.PW21/A1 to Ex.PW21/A6 and its negatives as Ex.PW21/B1 to Ex.PW21/B6.

32. PW­22 Sh. Mobin is the registered owner of Apachi TVS motorcycle bearing registration no. UP 17E 9252. He State Vs Arun Kumar and Ors.

FIR no. 353/13

PS - Keshav Puram Page no. 24 of 36 proved the copy of RC as Ex.PW22/A and superdaginama as Ex.PW22/B.

33. PW­23 Ms. Poonam Sharma, Asstt. Director Biology, FSL Rohini had conducted DNA examination of clothes and blood samples and opined that DNA profile generated from the clothes of accused Arun was similar with the DNA profile generated from blood samples of accused Salman. She proved her detailed report as Ex.PW23/A.

34. As already noted accused Arun Kumar and Salman expired during trial and accused Afsaroon became P.O.

35. Entire incriminating evidence was put to accused persons at the time of recording of their statement u/s 313 Cr.PC. Both accused persons stated that they are innocent and have been falsely implicated in the present case. Nothing incriminating was recovered from their possession. They have been lifted from their house.

36. Accused persons chose not to lead evidence in defence.

37. Final arguments were addressed by learned Sh.

Pankaj Kumar Ranga, learned Addl. PP for State and State Vs Arun Kumar and Ors.

FIR no. 353/13

PS - Keshav Puram Page no. 25 of 36 Ms. Bindya Malhotra, learned Amicus Curiae for accused Hemant and Imran.

38. It is fairly conceded by learned Addl. PP that both eye­witnesses of the prosecution i.e. PW­2 Manish Gupta and PW­5 Harish Chand Gupta have turned hostile to the prosecution case. Both these witnesses did not identify either of accused i.e. Hemant or Imran as being involved in the crime. After declaring them hostile learned Addl. PP for state had specifically pointed out towards accused Hemant and Imran and has shown accused persons to the witnesses. Still the witnesses did not identify them as being involved in the present crime. There is no circumstantial evidence that either of accused was involved in committing robbery from PW­2 and PW­5 or in firing incidence or had restrained or injured either PW­2 or PW­5. Even both witnesses i.e. PW­2 and PW­5 failed to identify the robbed property i.e. lunch box in judicial TIP. Even during trial, alleged case property i.e. lunch box was produced by MHC(M) but the same was not identified by either of witness. Even the mobile phone connections, record of which are proved were not issued State Vs Arun Kumar and Ors.

FIR no. 353/13

PS - Keshav Puram Page no. 26 of 36 in the name of either of two accused. There is nothing to suggest that somebody else procured these mobile numbers or accused used the documents of someone else to procure these mobile numbers for being used by them in crime. In the facts and circumstances it is rightly submitted by learned Amicus Curiae that both surviving accused Hemant and Imran are entitled to acquittal u/s 395/397/307/341 r/w section 120B IPC.

39. So far as, charge u/s 25 and 27 Arms Act against accused Hemant and Imran are concerned, it is alleged that accused Hemant got recovered pistol and dagger from a bag in the room in the house identified by him. Similarly, accused Imran got recovered one pistol from beneath the mattress lying the room by stating that this pistol was used by him at the time of committing the offence.

40. Even the recovery of these weapons as alleged by prosecution is doubtful.

41. Recovery of both the weapons is allegedly effected outside the jurisdiction of Police Station­Keshav Puram.

42. Section 166 Cr.PC provides as follows:­ State Vs Arun Kumar and Ors.

FIR no. 353/13

PS - Keshav Puram Page no. 27 of 36

166. When Officer in charge of police station may require another to issue search­warrant - (1) An officer in charge of a police station or a police officer not being below the rank of Sub­Inspector making an investigation may require an officer in charge of another police station, whether in the same or a different district, to cause a search to be made in any place, in any case in which the former officer might cause such search to be made, within the limits of his own station.

(2) Such officer, on being so required, shall proceed according to the provisions of section 165, and shall forward the thing found, if any, to the officer at whose request the search was made.

(3) Whenever there is reason to believe that the delay occasioned by requiring an officer in­charge of another police station to cause a search to be made under sub­section (1) might result in evidence of the commission of an offence being concealed or destroyed, it shall be lawful for an officer in­charge of a police station or a police officer making any investigation under this State Vs Arun Kumar and Ors.

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PS - Keshav Puram Page no. 28 of 36 Chapter to search, or cause to be searched, any place in the limits of another police station in accordance with the provisions of section 165, as if such place were within the limits of his own police station.

(4) Any officer conducting a search under sub­ section (3) shall forthwith send notice of the search to the officer in charge of the police station within the limits of which such place is situate, and shall also send with such notice a copy of the list (if any) prepared under section 100, and shall also send to the nearest Magistrate empowered to take cognizance of the offence, copies of the records referred to in sub­sections (1) and (3) of section

165. (5) The owner of occupier of the place searched shall, on application, be furnished free of cost with a copy of any record sent to the Magistrate under sub­section (4).

43. Recovery office PW­13 SI Umesh Rana did not state that he had intimated the local police officials for effecting recovery of the alleged weapon in their jurisdiction. PW­13 rather admitted that he did not inform the concerned police station prior to effecting the State Vs Arun Kumar and Ors.

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PS - Keshav Puram Page no. 29 of 36 recoveries at the instance of accused persons. There is no justification why local police was not informed prior to effecting recovery of weapons.

44. It is rightly submitted by learned Amicus Curiae that recovery is therefore vitiated for non­compliance of section 166 Cr.PC.

45. In his cross­examination dated 30.11.2015, PW­13 SI Umesh Rana stated that he did not prepare any site plan of the house from where accused Hemant and Imran were arrested. Recovery of weapons was effected from the said house only. PW­13 further stated in his cross­ examination that he did not know who was residing at the ground floor and first floor of the house. He admitted that area where house was situated was thickly populated but he did not give any information in PS­ Pandav Nagar and did not join any public persons from the neighbourhood at the time of conducting proceedings on 20.11.2013. He further stated that he did not knock the doors of flats situated at ground floor and first floor to know whether anyone is residing therein nor he made any inquiry from anyone including the neighbourers of State Vs Arun Kumar and Ors.

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PS - Keshav Puram Page no. 30 of 36 house to find out who was actual owner of house. He could not tell in which direction the main gate of the house in question was situated. He was not able to tell as to who was the owner of the house from which recovery was effected.

46. Section 100(4) Cr.PC provides :­ Before making a search under this Chapter, the officer or other person about to make it shall call upon two or more independent and respectable inhabitants of the locality in which the place to be searched is situate or of any other locality if no such habitant of the said locality is available or is willing to be a witness to the search, to attend and witness the search and may issue an order in writing to them or any of them so to do.

47. In the case of Mohd. Masoom Vs State of NCT of Delhi, Crl. A. 1404/2011, decided on 09.04.2015, Hon'ble High Court of Delhi quoted the observations of Hon'ble High Court in the case of Ram Prakash Vs State 2014 (146) DRJ 629, as follows :­ "... 16. Mr. Gaur pointed out that while the Appellant was apprehended State Vs Arun Kumar and Ors.

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PS - Keshav Puram Page no. 31 of 36 around 3.30 pm, the formal arrest was recorded at 11 pm i.e. after eight hours. Throughout this period the police remained present at the spot and yet they could not get a single public witness to be associated.

17. This is perhaps the weakest line in the entire case of the prosecution. In his evidence PW­9 stated that "he requested 5­ 6 public persons to join the proceedings but they did not join the investigation." It is not clear who those public persons were. Their names were not noted. In his cross­ examination PW­9 stated "People who were managing the parking were present in the parking. I did not call any person from the parking, any employee of the Railway and the police officials deployed there to join the proceedings."

18. It seems extraordinary that although PW­9 and the entire raiding party remaining at the spot i.e. the parking lot of Old Delhi railway Station, well be beyond 11.15 pm, i.e. nearly eight hours (they ultimately left the spot at 11.45 pm to reach the Crime Branch at 12.30 am) they were unable to locate a single public witness including any railway official or any personnel of any other security force to be associated in the State Vs Arun Kumar and Ors.

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PS - Keshav Puram                                                  Page no. 32 of 36
                        proceedings.
                             19. The trial Court has referred to

the decision in Ajmer Singh Vs State of Haryana 2010 (2) RCR (Crl) 132 to hold that the failure to associate independent witness is not fatal to the prosecution case, as long as it is shown that efforts were made and none was willing. However, it is seen that in the said decision the Supreme Court emphasised that it had to be shown that after making efforts, which the Court considers in the circumstances of the case reasonable, the police officer was not able to get public witnesses to associate with either the raid or the arrest of the culprit. In other words in every case it will have to be examined whether serious efforts made by the police to associate public witnesses. In Ram Swaroop Vs State (Govt. of NCT of Delhi) (2013) 14 SCC 235 the Supreme Court found the evidence of the police witnesses "absolutely unimpeachable" and therefore held that the failure to associate independent witnesses did not affect the prosecution case. However, as will be seen hereafter, that cannot be said of the prosecution witnesses in the present case.

20. In the present case as already noticed the entire raiding party remained State Vs Arun Kumar and Ors.

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PS - Keshav Puram Page no. 33 of 36 at the Old Delhi Railway parking lot which is an extraordinarily busy area from around 3.30 pm till midnight. This is a place where apart from security personnel, there are bound to be parking attendants and railway employees as well. The IO in his cross­examination has admitted that he did not make any effort to associate any such member of the security forces (including the railway forces, parking attendants or railway employee). In other words no sincere effort was made.

21. It has almost become a routine practice for the police to state that passersby were asked to join and they declined and went away without disclosing their names. The Court should be way of readily accepting such explanations. In a case where a raid takes place in broad daylight in a busy area, a more convincing explanation has to be offered why despite remaining at the spot for about eight hours the police did not find a single public witness to join the proceedings. (emphasis supplied).

48. In the case in hand despite the area being thickly populated, IO did not join any public person at the time State Vs Arun Kumar and Ors.

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PS - Keshav Puram Page no. 34 of 36 of conducting recovery proceedings. Recovery is in violation of section 100(4) Cr.PC without any justification. It is rightly submitted by learned Amicus Curiae that even the visit of PW­13 to the alleged house is doubtful as recovery officer did not prepare any site plan of the house and he even failed to give any description of the house including the main entrance of the house. He failed to investigate who was the owner of house.

49. In the facts and circumstances, court is of the opinion that prosecution has failed to prove the recovery of weapons from accused persons beyond reasonable doubt.

50. Thus, giving benefit of doubt accused Hemant and Imran are acquitted of the charges levelled against them.

51. Bail bonds of all accused persons furnished during trial stand cancelled and sureties are discharged. Endorsement on documents of sureties, if any, be cancelled. Original documents of sureties, if any, be returned against acknowledgment. Articles seized vide seizure memos and personal search memos of accused State Vs Arun Kumar and Ors.

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PS - Keshav Puram Page no. 35 of 36 persons be released to them against acknowledgment.

52. Case property be confiscated to State and the same may be disposed off as per rules and procedures after the lapse of period of filing of appeal.

53. File be consigned to record room to be revived as and when accused Afsaroon Chaudhary is arrested/produced before the court.

Announced in the open court Digitally signed by AJAY PANDEY on the 07th day of September, 2019 AJAY Date:

PANDEY 2019.09.07 15:54:56 -
0500
(Ajay Pandey) Additional Sessions Judge (N­W) Rohini Court/Delhi.
State Vs Arun Kumar and Ors.
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PS - Keshav Puram                                             Page no. 36 of 36