Delhi District Court
State vs Rajesh Solanki @ Rajesh Chadhary & Ors on 28 February, 2023
FIR No. 7/2015
PS Dwarka Sector 23
State vs Rajesh Solanki @ Rajesh Chadhary & Ors
THE COURT OF VIPLAV DABASS:
ADDL. SESSIONS JUDGE : FAST TRACK COURT:
SOUTH-WEST DISTRICT
DWARKA COURTS: NEW DELHI
SC No. 556-18
CNR No. DLSW01-013804-2018
JUDGMENT
(a) FIR No. 7/15
(b) Police Station Dwarka Sector-23
(c) Name, Parentage and i) Rajesh Solanki
addresses of the S/o Sh. Kartar Singh
accused persons. R/o E-701, Jagran Apartment DDA
SFS Flats, Plot No 17 Sec-22,
Dwarka, Delhi.
ii) Satender Kumar
S/o Sh. Satbir Singh
R/o V.P.O Shahabad Mohamadpur,
Delhi
(d) Offence 307/34 IPC and 30 Arms Act
(e) Plea of accused Pleaded Not guilty
(f) Final Order Acquitted
(g) Date of Institution 09.05.2018
(h) Date of committal 05.07.2018
(i) Date of Transfer to this 14.09.2022
court
(j) Date of reserving 28.02.2023
judgment
(K) Date of judgment 28.02.2023
Page No.1 of 43
FIR No. 7/2015
PS Dwarka Sector 23
State vs Rajesh Solanki @ Rajesh Chadhary & Ors
FACTUAL MATRIX
1. The case of prosecution is that on 17.09.2018, at about 11.00pm at DDA SFS Flats, Near Gate No. 3, Sector-22, Dwarka, New Delhi, the accused persons namely Rajesh Solanki and Satender Kumar in furtherance of their common intention, fired on the person of complainant Amit Madholia with such intention or knowledge and under such circumstances that if by that act death of the complainant was caused they both would have been guilty of murder. On the basis of aforesaid facts, present FIR for the offences punishable under section 307/34 and 25/27/59 Arms Act was registered at Police Station Dwarka, Sector-23.
2. On completion of usual investigation, present charge-sheet for offences punishable u/s 307/34 IPC, 185 MV Act and 27 Arms Act was filed before the court of Ld. Magistrate.
INITIAL COURT PROCEEDINGS AND CHARGE
3. The Ld. Magistrate took cognizance of the alleged offences and committed the matter to Ld. Sessions Court after complying with the provisions of S.207 Cr.P.C.
4. After hearing detailed arguments on behalf of the accused persons and the State, as a prima facie case was made out, charge for the offence punishable under Section 307/34 IPC was framed against accused persons Page No.2 of 43 FIR No. 7/2015 PS Dwarka Sector 23 State vs Rajesh Solanki @ Rajesh Chadhary & Ors namely Rajesh Solanki and Satender Kumar and a separate charge for offence punishable under section 30 Arms Act was framed against accused Satender Kumar to which the accused persons pleaded not guilty and claimed trial. Thereafter, the matter was fixed for prosecution evidence.
5. In order to prove the guilt of the accused u/s 307/34 IPC and 30 Arms Act, the prosecution has to prove the following essential ingredients of the said Sections:
Section 307 IPC:-Attempt to Murder That the accused did some act and such act was done with intention or knowledge that hurt was likely to be caused to the victim by that act Section 34 IPC:- Sharing of Common intention
(i)That the criminal act or a series of acts which include omissions and need not necessary be an overt act should have been done not by one person but by more then one person.
(ii) That the doing of every such individual act cumulatively resulting into the commission of criminal offence should have been in furtherance/ advancement/ promotion of common intention of all such persons.
Section 30 Arms Act Whoever contravenes any condition of a license or any provision of this Arms Act or any rule made thereunder.
PROSECUTION EVIDENCE
6. During the course of the trial, prosecution examined 13 witnesses to prove the aforesaid ingredients for substantiating the accusations levelled Page No.3 of 43 FIR No. 7/2015 PS Dwarka Sector 23 State vs Rajesh Solanki @ Rajesh Chadhary & Ors against the accused persons.
7. PW-1 Sh. Amit Madholia is the complainant. Her testimony will be discussed in detail in the later part of the judgment.
8. PW-4 Ms. Aarti Madholia was wife of complainant. His testimony will be discussed in detail in the later part of the judgment.
9. PW-2 HC Ramkesh was the Duty Officer posted at PS Dwarka Sector-23 from 12.00 midnight to 08.00 am. He deposed that on that day, at about 2.15am, Ct. Hukam Chand produced rukka to him sent by ASI Kamlesh on the basis of which PW-2 recorded present case FIR Ex. PW-2/A bearing his signatures at point A, that after registration of the case, the made endorsement on the tehrir Ex. PW-2/B bearing his signature at point A, that certificate under section 65-B of Indian Evidence Act is Ex. PW-2/C, that after registration of the case he handed over the copy of FIR and original rukka to SI Vivek in the police station.
The witness was not cross examined by the Ld. Defence Counsel despite opportunity.
10. PW-3 Dr. S.S. Murthy was Asst. Director (Ballistics), CFSL, Hyderabad. He deposed that on 23.05.2016, ten sealed parcels were received in their office through Inspector Sanjay Kumar for ballistic examination of the exhibits, that from the ten parcels two parcels were sealed with the seal of VK Page No.4 of 43 FIR No. 7/2015 PS Dwarka Sector 23 State vs Rajesh Solanki @ Rajesh Chadhary & Ors and the same were opened and it were given no. Ex.1 and Ex. 2, that on opening exhibit P1, one empty cartridge mark Ex.1 was found and that on opening exhibit P2, one pistol and three live cartridges mark Ex. 2A and Ex. 2C were found.
He further deposed that parcel no. 3 to 10 which were sealed with seal of CMO DDU Hospital and were given sl. no. 3 to 6 and 8 to 11, that on opening the said parcels, hand wash and control samples were found, that he examined the above exhibits and have his detailed report Ex. PW-3/A in this regard.
The witness was not cross examined despite opportunity.
11. PW-4 Ms. Mandolia w/o Sh. Amit Madholia was the victim. She deposed that on 07.01.2015, she along with her husband and son Abhyuda had gone to the house of her sister in law Smt. Manju Rawal at Sector-22, Dwarka, New Delhi.
She further deposed that she cannot identify any of the assailants of this case if they were present in the court today or not because when there was argument going between her husband and those assailants, he had gone to call her sister in law and her jijaji and that he does not know if her statement was recorded in the matter or not.
Witness was specifically shown the accused persons in the court, but the witness has failed to identify them being assailants.
Court permitted Ld. Sub. Addl. PP for State to cross examine the Page No.5 of 43 FIR No. 7/2015 PS Dwarka Sector 23 State vs Rajesh Solanki @ Rajesh Chadhary & Ors witness. During his cross-examination conducted by Ld. Sub. Addl. PP for State shed denied that both the accused persons restrained them and they had an altercation with his husband on the issue of giving them the way so that they could proceed further, that he had been won over by the accused persons, therefore, he was not identifying them, that he had been threatened by the accused persons and therefore, he was concealing the facts of the case and deposing falsely.
The witness was not cross examined by the Ld. Defence counsel despite opportunity.
12. PW-5 ASI Inderjeet was posted as MHCM at PS Dwarka Sector 23 on 08.01.2015. He deposed that on that day, SI Vivek had deposited sealed pullandas duly sealed with the seal of VK and had made entry at serial number 1787 in register no. 19.
He further deposed that on 27.01.2015, SI Vivek had deposited two sealed pullandas duly sealed with the seal of CMO DDU hospital and that he had made entry of the same at serial no. 1803 in register no. 19.
He again said on 19.02.2015, SI Vivek got deposited one sealed pullandas duly sealed with the seal of CMO DDU hospital and that he had made entry of the same at serial no. 1826 in register no. 19 Ex. PW-5/A (colly).
He further deposed that on 26.03.2015, he sent the above exhibits to Page No.6 of 43 FIR No. 7/2015 PS Dwarka Sector 23 State vs Rajesh Solanki @ Rajesh Chadhary & Ors FSL Rohini through Ct. Lekh Ram vide RC No. 28/21/15 and that till the possession of the above said exhibits with him, the same remained intact and were not tampered with in any manner.
The witness was not cross-examined by Ld. Defence counsel despite opportunity.
13. PW-6 ASI Ram Singh was posted as Incharge, PCR, Z-68 South West on 07.01.2015. He deposed that on that day he was on duty from 08.00 pm to 08.00 am, that on that day, HC Satdev was with him and HC Narvir was the gunman, that at about 11.30 pm their position was at Jhatikra Mor, that at about 1.30 am they received a message on wireless that the occupant of Chervelot Cruz Car Number DL-8CV-0200 had fired, that on receiving the information he gave the signal to the said car and the said car was stopped at Jhatikra Mor in which both accused persons were there, that accused Rajesh was on the driving seat and accused Satender was on conductor side seat, that he gave the information to the control room and IO came at the spot, that IO took search of the car and from the dash board of the car a black colour pistol and three live cartridges were recovered, that he does not put any signature on any of the memo however, the recovery was effected in his presence, that he had also handed custody of both the accused persons to the IO and that on 08.01.2015. IO recorded his statement at the spot.
He correctly identified the accused persons, one .32 caliber pistol Page No.7 of 43 FIR No. 7/2015 PS Dwarka Sector 23 State vs Rajesh Solanki @ Rajesh Chadhary & Ors Ex. P-1, cartridges Ex. P-2 (colly).
During his cross-examination conducted by Ld. Defence counsel he deposed that the distance between the place from where accused persons were arrested and Dwarka Sector-22 was about 8-10 km and it took about 30- 35 minutes to reach at the aforesaid spot from Sector-22.
He further deposed that on the receipt information from District Control Room, there was no physical description of accused given by caller. He admitted that initially when he saw the four wheeler of the accused persons, same was being driven at that time at a very normal speed.
He further deposed that after apprehension and inquiring of both accused persons, he had given information to District Control Room and within 10-15 minutes, about 4-5 police personnel of PS Chhawla came there but he does not recollect their designation right now, however, ATO Chhawla was alongwith them and that they remained at the spot for about 10-15 minutes while proceedings were being conducted by IO.
He further deposed that IO conducted superficial search of both accused in his presence and that he was not a witness in the seizure memo of recovered pistol even though the said pistol was recovered in his presence from dash board of their car. He denied that no personal search was conducted by IO in his presence nor accused persons were apprehended by him at Jhatikra Mor, that no pistol was recovered from the dash board of car at any point of time and that he was deposing falsely at the instance of IO of the case Page No.8 of 43 FIR No. 7/2015 PS Dwarka Sector 23 State vs Rajesh Solanki @ Rajesh Chadhary & Ors in order to strengthen the prosecution case.
14. PW-7 SI Jagdish was the Duty Officer posted at police station Dwarka Sector 23 on 07-08.01.2015 from 08.00 pm to 08.00 am. He deposed that on that day, at around 11.20 pm, he received information from wireless operator G-51 that in SFS DDA Flat Sector-22, Dwarka somebody has fired in the air, that he recorded the said information as DD No. 27-A and gave information to ASI Kamlesh telephonically regarding the said incident.
He further deposed that he had brought the original DD Register, containing the said DD No. 27-A dated 07.01.2015 and extract of the same is Ex. PW-7/1.
The witness was not cross examined by the Ld. Defence counsel despite opportunity.
15. PW-8 HC Ashok Kumar was photographer posted in Mobile Crime Team, South West from 08.00 am to 08.00 am(next day) on 08.01.2015. He deposed that they received a call at around 11.55 pm from control room of firing in DDA SAF Flats, Sector-22 Dwarka, that on receiving the said call, he along with ASI Khajan Singh, IC Crime Team, ASI Kulbhushan Singh, Finger Print Expert and driver Naresh went at the spot near gate no. 3, where they met with ASI Kamlesh and SI Vivek and other officials of local police, that on inspection they found one empty cartridge, that the crime report was prepared by ASI Khajan Singh and handed over to the IO, that he had seen Crime Page No.9 of 43 FIR No. 7/2015 PS Dwarka Sector 23 State vs Rajesh Solanki @ Rajesh Chadhary & Ors Scene Report dated 08.01.2015 Ex. PW-8/1 bearing signature of ASI Khajan Singh at point A which he identifies as he had worked with him, that he took six photographs along with its negatives to the IO, that he had seen six photographs Ex. PW-8/2 (colly) along with the negatives on the record and that these are the same photographs which he clicked and handed over to the IO.
During his cross-examination conducted by ld. Defence counsel he deposed that he does not remember exactly as to how many local police officials were present at the spot, that he does not remember if SHO of police station was present there when they reached at the spot, that the IO has shown him the place of occurrence and the empty cartridge and asked him to take photographs, that they reached back in their office at around 01.00 am, that they went directly to their office from Crime Scene and that his statement was recorded by the IO at the site.
16. PW-9 HC Hukum Chand was on emergency duty at police station Dwarka Sector-23 on 07/08.01.2015 from 08.00 pm to 08.00 am on the corresponding day along with ASI Kamlesh. He deposed that at around 11.20 pm, they received a call from Duty Officer of PS regarding firing at DDA SFS Flats, Sector-22 Dwarka, New Delhi near gate no. 3, that he along with ASI Kamlesh reached at the spot, where Amit Madholia met them, who informed them that two persons in white coloured car ran away after firing, that one of Page No.10 of 43 FIR No. 7/2015 PS Dwarka Sector 23 State vs Rajesh Solanki @ Rajesh Chadhary & Ors the person who ran away in the car was referred as 'Chaudhary' by Amit Madholia, that SHO of PS also reached at the spot, that ASI Kamlesh thereafter flashed the said message, that thereafter, crime team reached at the spot, that the make of the car was conveyed as 'Predo', that ASI Kamlesh has written the tehrir on the statement of Amit Madholia and handed over to him for getting the case registered, that thereafter, he reached at the police station along with tehrir (rukka) and handed over the same to Duty Officer for registration of case and that after 10 minutes, he again went at the site along with ASI Vivek.
Court permitted Ld. Addl. PP for State to cross examine the witness as he was resiling from his version. During his cross-examination was conducted by Ld. Addl. PP for State he admitted that his statement was recorded by IO on 08.01.2015, that he stated to the IO that Amit Madholia told them that the car in which persons after firing fled away was 'Chevrolet Cruze' white colour, that at the spot one secret informer came and he apprised ASI Kamlesh that one Rajesh Solanki who was also known by the name of Rajesh Chaudhary residing in Flat No. E-701, Plot no. 17, Jagaran Apartment, Sector- 22, Dwarka is having Chevrolet Cruze car of white colour.
He deposed that he also informed that said Rajesh Solanki left the said spot recently in the said car along with his friend towards Chhawla. He admitted that IO had inspected the site and during inspection he found one empty cartridge at the spot. He deposed that he could not tell the said fact Page No.11 of 43 FIR No. 7/2015 PS Dwarka Sector 23 State vs Rajesh Solanki @ Rajesh Chadhary & Ors exactly as he could not remember these facts due to passage of time.
During his cross examination conducted by Ld. Defence counsel he admitted that they went at the spot after receiving information vide DD no. 27-A dated 07.01.2015, already Ex. PW-7/1, that SHO remained at the site for around 30-45 minutes and that crime team was came later on after detection of the empty cartridge at the spot bythe IO.
He denied that Amit Madholia has not given any statement implicating the accused person for the said incident, that accused persons were present at the place of incident and that they made the fire at the instance of the IO and empty cartridge of said fire was recovered at the instance of IO.
17. PW-10 Retd. SI Kamlesh was posted at Police Station Dwarka Sector-23 Delhi. He deposed that on 07.01.2015, he was posted as ASI in police station Dwarka, that he was on emergency duty on that day from 08.00 pm to 08.00 am of the corresponding day ie on 08.01.2015 with Ct. Hukum Chand, that at about 11.20 pm, they received a call regarding firing at DDA SFS Flats, Dwarka Sector-22, New Delhi, near gate no. 3 vide DD no. 27-A, that on receiving the said information he along with Ct. Hukum Chand reached at the spot, where they met one person namely Mr. Madholia, who had given his handwritten statement narrating the sequence of events, that he had seen the handwritten statement of Mr. Madholia Ex. PW-1/A which he attested under his signature at point B, that he inspected the site and found one Page No.12 of 43 FIR No. 7/2015 PS Dwarka Sector 23 State vs Rajesh Solanki @ Rajesh Chadhary & Ors empty cartridge lying there, that he flashed the message regarding involvement of white colour Chevrolet Cruze car and for calling Mobile Crime Team at the spot, that on the basis of statement of complainant Amit Madholia prepared tehrir and handed over the same to Ct. Hukam Chand for getting the case registered, that tehrir Ex. PW-10/1 bearing his signature at point A, that the Crime Team reached at the spot, that the SHO of PS Sector- 23 also reached at the spot by that time, that he briefed the SHO regarding said incident and that the Crime Team took photographs as per his direction.
He further deposed that SI Vivek and Ct. Hukam Chand reached at the spot, that SI Vivek after discussion with the crime team seized the empty cartridge recovered from the spot and prepared rought sketch Ex. PW-10/2 bearing his signature at point A, that SI Vivek had seized the said empty cartridge vide seizure memo Ex. PW-10/3 bearing his signature at point A, that at about 02.00 pm, SI Vivek was informed from Control Room PCR, South West Zone, Mayapuri that the suspicious car qua which message was flashed was spotted at Jhatikara Mod near PS Chhawla, that on receiving the said message he along with SI Vivek reached at that place and met HC Ram Singh, Incharge PCR along with his staff, that there one white colour Chevrolet Cruze was stationed bearing registration number DL-8CA-0200 and two persons as per the description given by the complainant were also found there, that SI Vivek searched both those persons but nothing incriminating recovered from their possession, that those two persons which Page No.13 of 43 FIR No. 7/2015 PS Dwarka Sector 23 State vs Rajesh Solanki @ Rajesh Chadhary & Ors were found present with the said car are accused Rajehs Solanki @ Chaudhary and Satender.
He further deposed that SI Vivek searched the car from inside and found one pistol from the dashboard of the car, that SI Vivek checked the pistol after taking out magazine and same was found having 3 live rounds, that SI Vivek made enquiry upon which accused Satender told, SI Vivek that it was his license pistol but he could not show its license at that time, that both the accused persons along with the car was brought by them to the police station, that SI Vivek seized the said car vide seizure memo Ex. PW-10/4 bearing his signature at point A, that SI Vivek has also seized the said pistol along with its magazine and three live cartridges vide memo Ex. PW-10/5 bearing his signature at point A, that rough sketch of pistol Ex. PW-10/6, three live cartridges and magazine along with dimension was also prepared by SI Vivek, that other police officials also reached at that place and thereafter they brought both the accused persons along with the car and seized exhibits to the police station and that SI Vivek made enquiry from both these accused persons in the police station and thereafter arrested them. He further deposed that he prepared the arrest memo of accused Rajesh Solanki @ Chaudhary and Satender Kumar Ex. PW-10/7 and Ex. PW10/8 bearing his signatures at point A respectively.
He further deposed that clothes worn by both the accused persons were also seized vide seizure memo Ex. PW-10/11 bearings his signature at point Page No.14 of 43 FIR No. 7/2015 PS Dwarka Sector 23 State vs Rajesh Solanki @ Rajesh Chadhary & Ors A, that the brother of accused Satender namely Rajender Solanki brought the license of the pistol which was seized by the IO vide memo Ex. PW-10/12 bearing his signature at point A, that the copy of license is Ex. PW-10/13, that he along with SI Vivek had taken both the accused persons for medical examination at DDU hospital, where handwash of both the accused persons were taken and their hand swabs were also taken by the doctor, that the doctor handed over 4 pullandas along with 2 sample seals seized vide seizure memo Ex. PW10/14 bearing his signature at point A and that they brought back both the accused persons in the police station after their medical examination.
He further deposed that he had also found one secret informer at the place of occurrence who informed him that the White Coloured car which was parked at the spot and went away was owned by one Mr. Chaudhary, who was residing in Jagaran Apartments, Sector-22, Dwarka, that he also informed him that said car was being driven by Mr. Chaudhary and one of his friend was also sitting with him in the said car and they fled away from the spot in the said car recently and that they flashed the said message.
He correctly identified the accused persons, one empty cartridge of 7.65 as Ex. P-1, pistol caliber.32 Ex. P-2, cartridges as Ex. P-3(colly), clothes of accused Rajesh Solanki Ex. PW-4 (colly), Jacket of accused Satender Ex. P-
5. During his cross-examination conducted by Ld. Defence counsel he admitted that information vide DD no. 27-A was regarding air firing. He Page No.15 of 43 FIR No. 7/2015 PS Dwarka Sector 23 State vs Rajesh Solanki @ Rajesh Chadhary & Ors deposed that the crime team reached at the spot around 11.45pm-12 midnight at the spot, that the FIR was not got registered by that time, that IO prepared the site plan Ex. PW-1/B in his presence, that FIR was registered when the site plan was prepared by the IO, that complainant remained with them at the place of occurrence by 02.00 am, that he was not aware if information was given to PS Chhawla where car was spotted and that he was also not aware if any official from PS chhawla was present at the spot where car was spotted.
He denied that he made complainant Amit Mandolia to write statement Ex. PW-1/A, that no such incident had taken place and that all the proceedings were carried out in the police station because accused persons were arrested then and there.
He further deposed that he does not know if complainant was called by the IO after arrest of accused persons and that the complainant had not identified the accused persons in his presence on the day of occurrence.
He denied that he fired from the pistol of accused and that he had deposed falsely.
18. PW-11 Inspector Vivek was the Investigating Officer of the present case. He deposed that on 07.01.2015, he was posted as SI in police station Dwarka Sector-23, New Delhi, that the investigation of the case was handed over to him on 08.01.2015 after registration of FIR, that he along with Ct. Hukam Chand reached at the spot, that after discussion with the crime team Page No.16 of 43 FIR No. 7/2015 PS Dwarka Sector 23 State vs Rajesh Solanki @ Rajesh Chadhary & Ors he seized the empty cartridge recovered from the spot and prepared rough sketch Ex. PW-10/2 bearing his signature at point Y and that he seized empty cartridge vide seizure memo Ex. PW-10/3 bearing his signature at point Y. He further deposed that at about 2.35am, he got an information from Control Room PCR, South West Zone, Mayapuri that a suspicious car qua which message was flashed was spotted at Jhatikara Mod near PS Chhawla and that on receiving the said message he along with ASI Kamlesh and Ct. Hukum reached at that place and met HC Ram Singh, Incharge PCR along with his staff.
He further deposed that there a white colour Chevrolet Cruze was stationed bearing registration number DL-8CAV-0200 and two persons as per the description given by the complainant were also found there, that he searched both those persons but nothing was recovered from their possession and that those two persons who were found present with the said car are accused Rajesh Solanki @ Chaudhary and Satender, who are present in the court. PW-11 correctly identified the accused persons.
He further deposed that he searched the car from inside and found a pistol from the dashboard of the car, that he checked the pistol after taking out magazine and it was found having 3 live rounds, that he made enquiry upon which accused Satender told him that it was his licensed pistol but he could not show license at that time, that he prepared sketch of pistol and live cartridge Ex. PW-10/6, that pistol and live cartridges were seized vide seizure Page No.17 of 43 FIR No. 7/2015 PS Dwarka Sector 23 State vs Rajesh Solanki @ Rajesh Chadhary & Ors memo Ex. PW-10/5 bearing his signature at point Y, that he seized the said car vide seizure memo Ex. PW-10/4 bearing his signature at point Y and that both the accused persons along with car were brought by them to the police station.
He further deposed that he seized clothes of both the accused vide seizure memo ex. PW-10/11 bearing his signature at point Y, that he arrested both the accused persons namely Rajesh Solanki @ Chaudhary and Satender Kumar vide arrest memo Ex. PW-10/9 and Ex. PW-10/10 bearing his signature at point Y, that brother of accused Satender namely Rajender Solanki brought the license of the pistol which was also seized by him vide seizure memo Ex. PW-10/12 bearing his signature at point Y and that copy of license is Ex. PW-10/13.
He further deposed that he along with ASI Kamlesh took both the accused persons for medical examination at DDU hospital, where handwash of both the accused persons were taken and their hand swabs were also taken by the doctor, that doctor handed over 4 pullandas along with 2 sample seals vide memos Ex. PW-10/14 bearing his signatures at point Y and that they brought back both the accused persons in the police station after their medical examination.
He further deposed that case property was deposited in the malkhana, that he recorded the statement of witnesses, that both accused namely Rajesh Solanki and Satender were produced before the court in muffled face, that he Page No.18 of 43 FIR No. 7/2015 PS Dwarka Sector 23 State vs Rajesh Solanki @ Rajesh Chadhary & Ors moved an application for TIP for both accused persons, that accused Rajesh Solanki refured to Join TIP proceedings and TIP of accused Satender was fixed for 12.01.2015, that on 09.01.2015, that he prepared the site plan at the instance of complainant and same is already Ex. PW-1/B bearing his signature at point B, that he recorded the statement of complainant the statement of Aarti Madhulia and that on 12.01.2015 accused Satender refused to join TIP proceedings Mark 1.
He further deposed that on 18.01.2015 and 27.01.2015, he recorded the statement of Amit Madholia and on 27.01.2015, he recorded the identification statement of Amit Madholia and Aarti Madholia, that on 27.01.2015, he got conducted medical examination of accused Satender through Ct. Amit, that after medical examination of accused Satender at DDU hospital, Ct. Mohit handed over to him control sample (handwash and hand swab) in a sealed condition sealed by Doctor at DDU hospital, that said control sample was seized vide memo Ex. PW-11/A bearing his signature at point A and that case property was deposited in malkhana and he recorded statement of Ct. Mohit.
He further deposed that on 19.02.2015, he got conducted medical examination of accused Rajesh Solanki @ Rajesh Chaudhary through Ct. Lekhram, that after medical examination of accused Rajesh at DDU hospital, Ct. Lekhram handed over to him control sample (handwash and hand swab) in a sealed condition sealed by Doctor at DDU hospital, that said control sample was seized vide memo already Ex. PW-12/A bearing his signature at point B Page No.19 of 43 FIR No. 7/2015 PS Dwarka Sector 23 State vs Rajesh Solanki @ Rajesh Chadhary & Ors and that case property was deposited in malkhana and he recorded statement of Ct. Lekhram.
He further deposed that he got verified Arm license of Satender from DCP (Licensing) vide Report Ex. PW-11/B, that he obtained the ownership of vehicle no. DL-8C-AV-0200 from concerned authority and same was found in the name of M.S. Chaudhary associates, company of accused Rajesh Solanki, that pistol alongwith empty cartridge and handwash of both accused persons were sent to FSL through Ct. Lekhram and that on receiving of FSL Result Ex. PW-13/A and he prepared charge-sheet and send to court.
He further deposed that before filing the charge sheet, he added section 185 MV Act against accused Rajesh Solanki as the BAC of accused Rajesh was found 51.5mg/100ml.
He correctly identified the case property ie 0.32 calibre pistol as Ex. P1, two empty cartridges and one live cartridge as Ex. P2, one empty cartridge as Ex. P3, photographs of car no. DL-8CAV-0200 make Chevrolet Cruize as Ex. P2(colly), one white colour jeans and one light brown colour upper of tracksuit as Ex. P4(colly) and one khakee coloured jacket as Ex. P5.
During his cross-examination conducted by Ld. Defence Counsel he deposed that place of occurrence was residential area. He admitted that DD No. 27A was related to air firing. He further deposed that he reached at the spot at about 2.25 a.m, that empty used cartridge was seized by him from the Page No.20 of 43 FIR No. 7/2015 PS Dwarka Sector 23 State vs Rajesh Solanki @ Rajesh Chadhary & Ors spot, that ASI Kamlesh had shown used cartridge to him and crime team and that no independent witness was found at the spot when he visited the spot. He admitted that the incident took place inside the society.
He further deposed that at that time, he enquired only from the guard of that society, that at the time of incident, only complainant and his wife were present at the spot, that he remained present at the spot for half an hour and that he seized the empty cartridge and interrogated the guard of the society regarding the incident during that half an hour.
He denied that he completed the entire investigation in the P.S, that no complaint was given by Amit Madholia, that complainant filed present complaint at their instructions, that the accused persons had not fired any gun shot with license pistol, that the gun shot was fired by Hukam Chand on the instructions of police officials present there, that the accused persons were detained at the spot and they create a false story regarding their arrest and that he was deposing falsely.
19. PW-12 ASI Lekh Ram was posted at police Station Dwarka Sector 23 at the relevant time. He deposed that on 19.02.2015, as per directions of IO/ SI Vivek Maindola, he along with accused Rajesh Solanki @ Rajesh Choudhary went to DDU hospital for examination of handwash and hand swab of accused Rajesh Solanki @ Rajesh Choudhary, that doctor had examined him and prepared MLC No. 2611/15 and preserved the handwash Page No.21 of 43 FIR No. 7/2015 PS Dwarka Sector 23 State vs Rajesh Solanki @ Rajesh Chadhary & Ors and hand swab of accused Rajesh Solanki @ Rajesh Choudhary in separate boxes and sealed handwash and handswab of accused Rajesh Solanki @ Rajesh Choudhary with seal of CMO DDU hospital and handed over to him sample seal and boxes, that he came back to police station along with sample seal and sealed exhibits and he handed over the same to IO, who seized the hand wash and hand swab of accused Rajesh Solanki @ Rajesh Choudhary vide seizure memo Ex. PW-12/A bearing his signature at point A and accused Rajesh Solanki @ Rajesh Choudhary was allowed to go from the hospital, that till the time the sealed exhibits remained in his possession, no tampering had been done with the same and that IO recorded his statement to this effect under section 161 Cr.P.C.
He further deposed that on 26.03.2015, on the directions of IO, he took the seized exhibit along with case property vide RC no. 28/21/15 from MHCM for deposition of the same to FSL, Rohini.
The witness was not cross examined by the Ld. Defence Counsel despite opportunity.
20. PW-13 HC Mohit was posted at police station Dwarka Sector-23 as Head Constable on 27.01.2015. He deposed that on that day, as per directions of IO/SI Vivek, he took accused Satender at DDU hospital for medical examination where doctor got conducted medical examination of accused Satender vide MLC No. 1205/15 and took control sample (handwash Page No.22 of 43 FIR No. 7/2015 PS Dwarka Sector 23 State vs Rajesh Solanki @ Rajesh Chadhary & Ors and handswab) in a sealed pullanda duly sealed with the seal of DDU hospital, that after returning to police station, he handed over sealed pullanda to SI Vivek, that IO seized the pullanda vide seizure memo Ex. PW-11/A bearing his signature at point B, that till the case property remained in his possession, no tampering was done and that IO recorded his statement.
The witness was not cross examined by ld. Defence counsel despite opportunity.
21. Thereafter, prosecution evidence was closed vide order dated 23.02.2023 and the matter was fixed for recording statement of accused persons under Section 313 Cr.P.C wherein all the incriminating circumstances appearing in evidence were put to them to which they stated a false case was registered on the basis of false complaint, that they were arrested on the basis of false allegations and all the case property have been planted upon them, that they were forced by the police officials to put hand on some blank papers, that all the proceedings were conducted by police officials to create a false case, that all the entries have been falsely made to create false case against them, that a false FIR has been registered against them, that the witnesses are the interested witnesses and have deposed falsely and that they are innocent and have been falsely implicated in this case. The accused persons opted not to lead defence evidence and therefore defence evidence was closed. Thereafter, matter was fixed for final arguments.
Page No.23 of 43 FIR No. 7/2015PS Dwarka Sector 23 State vs Rajesh Solanki @ Rajesh Chadhary & Ors FINAL ARGUMENTS
22. This court heard the arguments advanced on behalf of the State as well as Defence and perused the record of the case.
23. Ld. Substitute Additional Public Prosecutor argued that the prosecution witnesses have clearly established the prosecution version that accused persons in furtherance of their common intention attempted to kill complainant Amit Madholia by firing bullet at him with such intention or knowledge that if by that act death of complainant was caused, the accused persons would have been guilty of murder. He further stated that the prosecution has also proved the fact that the accused Satender contravened the provisions of Arms Act punishable u/s 30 of the said Act by using his licensed revolver with intention to kill the complainant Amit. He further argued that the fact that the complainant and other eye witness/ his wife have turned hostile qua the identity of the accused persons as assailants and the alleged incident does not in any manner effect the veracity of the consistent testimony of the police witnesses as they did not have any previous enmity with the accused persons. He further stated that moreover the complainant/eye witnesses in such cases turn hostile due to fear of future enmity with the offenders/assailants, so the firm testimony of the police cannot be discarded in such circumstances. Ld. Sub. Addl. PP for the Page No.24 of 43 FIR No. 7/2015 PS Dwarka Sector 23 State vs Rajesh Solanki @ Rajesh Chadhary & Ors State further argued that the factum of recovery of pistol with live cartridges belonging to accused Satender from the dashboard of the car belonging to the accused Rajesh Solanki in which both the accused were found at the time of their apprehension, is sufficient to connect the accused persons with the incident of firing in the alleged manner. Ld. Sub. Additional PP for the State submitted that the refusal of the accused persons to participate in the TIP proceedings, further, incriminate the accused persons as they have not been able to show any reasonable ground during the trial for justifying their said refusal. He further stated that the unrebutted testimony of PW-3/ Ballistic Expert and his report Ex. PW-3/A that the empty cartridge Ex. 1 recovered from the spot could not have been fired from any other fire arm except Ex.2 which the pistol recovered from the possession of the accused persons further connects them with the act of firing at complainant punishable under section 307/34 IPC as well as with contravention of conditions of license of the pistol punishable under section 30 Arms Act. He further argued that the accused persons be convicted for the offences charged as all the ingredients necessary for completion of alleged offences are proved beyond reasonable doubt.
24. It is argued on behalf of the Defence that the complainant/PW-1 and other eye witness/PW-2 who are the Star witnesses of the prosecution have not supported its version qua happening of the incident in the alleged Page No.25 of 43 FIR No. 7/2015 PS Dwarka Sector 23 State vs Rajesh Solanki @ Rajesh Chadhary & Ors manner, identity of the accused persons as assailants and seizure of empty cartridge and use of pistol at the time of commission of alleged offence. He argued that the recovery of the licensed pistol of accused Satender with cartridges from the dashboard of the car belonging to the accused Rajesh Solanki is also not proved beyond reasonable doubt as no public persons were joined at the time of apprehension of accused persons and recovery of pistol with cartridges and that the police officials had not even made any DD entry regarding their departure from the police station for apprehension of accused persons and recovery of pistol from the dashboard of the car. He submitted that the testimony of the police witnesses is of no consequence, in view of hostility of the main witnesses and the aforesaid discrepancies in the investigation. Ld. counsel further argued that the contradictions made by the victim and eye witness ie PW-1 and PW-4 viz a viz the version of police officials regarding the factum of their participation in the investigation by way of recording their statements, substantiates the defence version of false implication of the accused persons by manipulating the documents for working out the case. He further submitted that the accused in these circumstances should be acquitted.
APPRECIATION OF EVIDENCE AND REASONING
25. In order to prove the offences punishable under section u/s 307/34 IPC as well as offence punishable under section 30 Arms Act, the Page No.26 of 43 FIR No. 7/2015 PS Dwarka Sector 23 State vs Rajesh Solanki @ Rajesh Chadhary & Ors prosecution was required to prove the identity of accused persons as assailants, the fact that the accused persons shared common intention to kill the complainant, the factum of happening of the alleged incident of firing bullet at complainant in alleged manner, the fact that the accused persons were the offenders who had run away in the car bearing number DL-8CS- 0200, the factum of recovery of the empty and live cartridges from the spot of firing in Dwarka and dash board of the aforesaid car at Jhatikra Mor respectively, the factum of firing of cartridge by the accused persons at the spot of firing by using the licensed pistol whose empty shell was found at the spot and factum of violation of conditions of the license of the pistol by accused Satender.
26. For proving the aforesaid ingredients, the prosecution examined eleven witnesses out of which PW-1/victim Sh. Amit Mandolia and PW-4 Ms. Aarti Mandolia are the most important witnesses being the victim and eye witness of the incident and the remaining witnesses are police officials, who reached the spot and carried out the investigation after the incident. Henceforth, court shall now proceed further to evaluate the evidence available on record to find out if the prosecution has succeeded in its task or not.
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27. PW-1 Sh. Amit Mandolia was the victim/injured and eye-witness of the alleged incident and was examined as PW-1. Prosecution was relying on his version but he did not support the case of prosecution and turned hostile qua identity of accused persons and investigation carried out in his presence as recorded in his statement under section 161 Cr.P.C.
28. PW-1 Sh. Amit Madholia was the complainant. He deposed in examination in chief that on 07.01.2015, he along with his wife and son aged about 10 years, came to Flat No. 672, DDA Flats, Sector-22, Dwarka, New Delhi to meet his elder sister, that at about 08.15pm, after taking dinner, he proceeded to his home for Gurugram around 11 pm and that he was in his car. He further deposed that while exiting the housing complex, he found one car parked in the middle of the internal road in the society as only one gate was opened, that he waited for some time to give a pass to the other car standing in front of his car but it does not move, that he also requested a few times for giving him way but nothing happened, that then he came out of his car and requested driver of the car to give him way to take out his car, that at that time there were 3-4 persons roaming in the society, that due to this some altercation took place between him and the driver of the said car, that just to avoid any further dispute he went towards his car to go back to his sister's place and that suddenly he heard the noise of firing.
Page No.28 of 43 FIR No. 7/2015PS Dwarka Sector 23 State vs Rajesh Solanki @ Rajesh Chadhary & Ors He further deposed that he cannot identify the persons who had altercation with him on that night.
Court permitted ld. Sub. Addl. PP for State to cross examine the witness as the witness was resiling from his previous statement.
During his cross-examination conducted by Ld. Sub. Addl. PP for State he admitted that he had made a complaint to the police Ex. PW-1/A bearing his signature at point A. He voluntarily deposed that on the asking of some person, he had made the complaint. He deposed that he had shown the place of incident to the IO, who prepared site plan Ex. PW-1/B bearing his signature at point A and that he had not made any statement to the police Mark PW-1/C. The statement mark PW-1/C was read over to the witness from point A to A which the witness denied having been made to the police.
He denied that both the accused persons restrained him and he had an altercation with them, that he is intentionally not identifying the persons who fired upon him with intention to kill him and that he had been won over by accused persons, therefore, he was deposing falsely.
The witness was not cross examined by the Ld. Defence counsels despite opportunity.
29. It is evident from the testimony of PW-1/complainant that he affirmed the prosecution version of happening of firing incident on 07.01.2015. However, he showed his inability to identify the offenders in his examination in chief, who had fired the gunshot. In the cross-examination conducted by Page No.29 of 43 FIR No. 7/2015 PS Dwarka Sector 23 State vs Rajesh Solanki @ Rajesh Chadhary & Ors the Ld. Sub. Addl. PP for the State he firmly denied the suggestions that both accused persons restrained him and he had an altercation with them and that he was intentionally not identifying the persons who fired upon him with intention to kill him and that he have been won over by accused persons, therefore, he was deposing falsely. These testimonies establish that neither the accused persons Rajesh Solanki and Satender restrained him or fired upon PW-1 nor they were present at the spot in the car of accused Rajesh. His firm denials regarding the factum of giving statement Mark PW-1/C to the police and that he had given the complaint Ex. PW-1/A on asking of some person contradict the testimony of police officials who recorded his statement and carried out the investigation in this case on the basis of complaint Ex. PW-1/A. These contradictions falsify the prosecution version of involvement of the accused persons in this case.
The unrebutted voluntary explanation of the complainant that complaint Ex. PW-1/A was given by him on asking of some person and firm deposition that he had not made any statement to the police shows that the chances of subsequent implication of the accused persons in this case at instance of police officials on the basis of manipulated documents, cannot be ruled out.
In view of the voluntary explanation of PW-1 that he made the complaint Ex. PW-1/A on the asking of some person, it is important to refer to the said statement. Perusal of the statement reveals that it is specifically stated by PW-1 that accused persons fired the gun shot by aiming at the complainant Page No.30 of 43 FIR No. 7/2015 PS Dwarka Sector 23 State vs Rajesh Solanki @ Rajesh Chadhary & Ors who saved him by ducking. Needless to say that these contents are required for attracting stringent provisions of section 307 IPC.
It is an admitted case of prosecution that the said statement was obtained after ASI Kamlesh/ PW-10 who reached the spot on receiving information of the incident vide DD No. 27-A. Perusal of the duly proved DD no. 27-A Ex. PW-7/1, the testimony of PW-7 SI Jagdish who is the author of the said DD and the admission made by PW-10 SI Kamlesh as well as PW-11/ IO Inspector Vivek reveals that the initial information received vide DD no. 27-A was regarding firing in the air.
This fact along with the afore discussed testimony of PW-1 that he made the complaint on asking of some person clearly shows that incident of firing in air has been converted into a case of attempt to murder by the police officials by manipulating documents as well as the psyche of the victim.
30. These depositions of PW-1 have the effect of demolishing the very foundation of the case which tantamounts to exonerating the accused persons from the allegations of firing in alleged manner by using pistol levelled against him.
31. PW-4 Ms. Aarti was wife of PW-1 Sh. Amit Mandolia who was present with the complainant/ PW-1 at the time of incident. However, she did not depose on the lines of PW-1 regarding the happening of the incident of firing in the alleged manner while going back to Gurgaon after visiting the Page No.31 of 43 FIR No. 7/2015 PS Dwarka Sector 23 State vs Rajesh Solanki @ Rajesh Chadhary & Ors house of her sister in law. In the examination in chief she deposed that she cannot identify any of the assailants of this case if they are present in the court or not because when there was argument going between her husband and those assailants, she had gone to call her sister in law and her jijaji and that she does not know if her statement was recorded in the matter or not. She was specifically shown the accused persons in the court, but the witness failed to identify them being the assailants.
In the cross-examination conducted by Ld. Addl. PP for the State she denied that both the accused persons restrained them and they had an altercation with his husband/PW-1 on the issue of giving them the way so that they could proceed further, that she had been won over by the accused persons, therefore, she was not identifying them, that she had been threatened by the accused persons and therefore, she was concealing the facts of the case and deposing falsely. She denied having made the statement Ex. PW-2/A to the police despite the fact that the said statement was read over to her from point A to A. These firm denials of PW-2 falsify the prosecution version of involvement of the accused persons in the present case as well as the factum of her participation in the investigation being eye witness. Her silence about the manner of happening of the said incident despite being present with her husband who stated about the manner of happening of incident ie causing of restraint etc further puts a question mark on the testimony of PW-1 qua Page No.32 of 43 FIR No. 7/2015 PS Dwarka Sector 23 State vs Rajesh Solanki @ Rajesh Chadhary & Ors happening of firing incident due to altercation in the internal lane of the society.
Perusal of the testimony of PW-2 reveals that she has not only turned hostile regarding the manner of happening of the alleged incident and factum involvement of the accused persons in the incident reported by her husband/complainant to the police but by firmly denying the suggestions put by the Ld. Addl. PP for the State and further denying the factum of recording of statement by the police, she has completely shattered credibility of the investigation conducted by the police officials at the spot and thereafter.
32. It follows from the aforesaid discussed testimonies of PW-1 and PW-2 that the prosecution version of commission of the alleged offence of restraining the complainant and firing a gun shot by the accused Rajesh Solanki in furtherance of common intention shared with co-accused Satender is not believable as both the eye witnesses have turned hostile with respect to presence of accused persons at the spot and their identity as assailants who fired bullet on complainant.
33. Record shows that prosecution version is that both the accused persons were apprehended in car belonging to accused Rajesh by PCR Staff headed by Incharge PW-6 ASI Ram Singh at Jhatikra Mor and on search of the car the alleged pistol with three cartridges was found from the dashboard of the car. Perusal of the testimony of PW-6 and the record shows that no document Page No.33 of 43 FIR No. 7/2015 PS Dwarka Sector 23 State vs Rajesh Solanki @ Rajesh Chadhary & Ors suggesting that PW-6 was on duty with PCR on that day at that time has been brought and proved. It is also seen that no other DD entry establishing the presence of PW-6 ASI Ram Singh along with his PCR staff at that point of time has been brought and proved on record. Record shows that PW-6 ASI Ram Singh admitted that he did not put his signatures on any of the memos but stated that the recovery was effected in his presence. No explanation has been given for not obtaining the signatures of PW-6 ASI Ram Singh on the recovery memos. These omissions create grave doubt upon the factum of very presence of PW-6 ASI Ram Singh at the place of apprehension of accused persons and recovery of live cartridges which further makes the prosecution version of said apprehension and recovery at Jhatikra Mor highly doubtful.
It is also seen from the testimony of PW-6 that 4-5 personnel of PS Chhawla had also reached the spot upon his information given to District Control Room regarding the apprehension of accused persons and that the said staff from PS Chhawla remained at the spot for about 10-15 minutes while the proceedings were being conducted by IO ie PW-11 SI Vivek who was also present on the spot on receiving information from the control room. Perusal of testimony of PW-11 IO SI Vivek reveals that he had reached the place of apprehension ie Jhatikra Mor along with ASI Kamlesh PW-10 and Ct. Hukum Singh ie PW-9. PW-11 did not state anywhere about the presence of staff of PS Chhawla at the place of apprehension of the accused persons Page No.34 of 43 FIR No. 7/2015 PS Dwarka Sector 23 State vs Rajesh Solanki @ Rajesh Chadhary & Ors along with the car. Testimony of PW-6 shows that he did not utter even a single word regarding the presence of PW-6 and PW-9 also along with the IO which is deposed by PW-11 in his testimony. It is also seen that PW-9 HC Hukum Chand did not say at all in his testimony that he had accompanied PW-10 and PW-11 to Jhatikra Mor and had met PW-6 over there along with them upon apprehension of the accused persons at that place by the PCR staff. PW-10 SI Kamlesh did not also state about the fact that PW-9 had accompanied him and PW-11/IO to the place of apprehension of the accused persons at Jhatikra Mor. It is also seen that the prosecution has not brought and proved any document ie DD entry or other record suggesting that PW-9, PW-10, and PW-11 had ever gone to Jhatikra Mor together upon receiving the information of apprehension of the accused persons in the car at Jhatikra Mor. These are material omissions which along with the aforestated contradictions in the testimonies of the recovery witnesses create grave upon the very factum of apprehension of accused persons in the car as well as factum of recovery of pistol with live cartridges from the dashboard of the car at Jhatikra Mor.
It is further seen from the testimony of PW-9, PW-10 and PW-11 and PW-6 that none of them had uttered a single word regarding the fact that these prosecution witnesses have offered their casual search to the accused persons before starting the search of the car and conducting their personal search which in cases like the prsent one involving fire arms should be done Page No.35 of 43 FIR No. 7/2015 PS Dwarka Sector 23 State vs Rajesh Solanki @ Rajesh Chadhary & Ors as per law.
It is further pertinent to refer to the cross examination of PW-6 wherein he admitted that initially when he saw the four wheeler of the accused persons the same was being driven at a very normal speed. This testimony further creates doubt upon the factum of accused persons being the assailants as in normal circumstances an assailant would definitely have sped up his car after seeing the police but the same was not done by the accused herein.
34. It is clear from the aforesaid discussion that prosecution has not been able to prove the factum of apprehension of accused persons and recovery of the pistol with live cartridges from the dashboard of the car at the alleged place of recovery ie Jhatikra Mor. It is also already established that the victim/PW-1 and eye witness PW-2 have not supported the prosecution version of involvement of accused persons in the incident of firing at the alleged spot. It implies that the prosecution version of recovery of empty cartridge from the place of incident of the gun shot fired by the accused is also not believable. Moreover, the empty cartridge was not recovered from the place of incident at instance of the PW-1/victim who was very much present there. It implies that the planting of the empty cartridge after using it in the alleged pistol by the police officials to work out the case cannot be ruled out. In view of the aforesaid observations and failure of the prosecution to establish the factum of recovery of the empty cartridge from the place of Page No.36 of 43 FIR No. 7/2015 PS Dwarka Sector 23 State vs Rajesh Solanki @ Rajesh Chadhary & Ors firing as well as factum of firing of the said cartridge by the accused persons by using the licensed pistol beyond reasonable doubts, the positive opinion of the Ballistic Expert that the empty cartridge Ex. 1 recovered from the spot could not have been fired from any other fire arm except Ex.2 which the pistol recovered from the possession of the accused persons, cannot come to the rescue of the prosecution to connect the accused with incident of firing by using the pistol.
It is further important to refer to the other findings mentioned in the duly proved FSL report Ex. PW-3/A wherein it is opined that the firing discharge residues were not found in hand wash and handswabs of both the accused persons. This opinion further reinforces the finding that none of the accused was involved in the alleged firing incident. In view of hostility of the prime/eye witnesses, PW-1 and PW-4 with respect to the happening of alleged incident of restraining the complainant and firing at him as well as presence of the accused persons at the spot at the time of incident, the positive result of FSL examination is not sufficient to bring home the guilt of the accused persons as the same are merely opinions.
35. Regarding, the offence punishable under section 30 Arms Act, it is pertinent to mention that prosecution did not specifically mention as to which condition of license has been violated by the accused Satender. It is already establish that prosecution has failed to prove the involvement of both the Page No.37 of 43 FIR No. 7/2015 PS Dwarka Sector 23 State vs Rajesh Solanki @ Rajesh Chadhary & Ors accused persons in the alleged incident of firing. So, even it cannot be said that accused Satender being the licensee had handed over his pistol to co- accused Rajesh Solanki which may have shown some divergence from the conditions of license. In view of the aforesaid observations and present facts, it follows that there is no material suggesting any sort of violation of the conditions of license by accused Satender.
36. Perusal of the record shows that PW-1 and PW-4 are the only eye witnesses of the incident. It is further clear that police officials i.e. PW-2, PW- 5, PW-6, PW-7, PW-8, PW-9, PW-10 and PW-11 are not eye witnesses of the incident as they have merely conducted the investigation based on the version stated by the complainant. The police witnesses have deposed about the various steps taken in the investigation as well as the factum of preparation of various memos ie arrest memo, personal search memo, recovery memo of pistol and empty cartridge, seizure memo of car etc. It is evident from the discussion made in the previous paragraphs that PW-1 and PW-2, the eye witnesses, have turned hostile regarding the presence of accused persons at the spot and their identity as assailant who fired the gunshot on complainant. They both have further disowned their statement recorded by the police which creates grave doubt upon their participation in investigation. These contradictions in the testimonies of PW-1 and PW-2 viz a viz police officials create grave doubt upon the fairness and impartiality of investigation. It Page No.38 of 43 FIR No. 7/2015 PS Dwarka Sector 23 State vs Rajesh Solanki @ Rajesh Chadhary & Ors indicates that chances of false implication of the accused persons by the police officials by manipulating documents and fabricating false evidence cannot be ruled out. Furthermore, non joinder of public persons during investigation despite the happening of the incident and recovery pistol with cartridges as well as apprehension of accused persons at public place, has also not been explained during the trial which is a material omission. So, the testimonies of these police witnesses, in view of the hostility of the PW-1 and PW-2 qua identity of the accused persons as assailants and their participation in investigation as well as aforesaid omissions, is of no consequence to incriminate the accused persons for the alleged offences.
37. Record shows that no other piece of evidence ie electronic/ dump data/ CCTV footages of the spot as well as nearby areas or otherwise was collected during the entire investigation to establish the presence of the accused at or near the spot at the time of commission of the alleged offence. These being material omissions on the part of the investigating agency indicate that the investigation was not done properly. It further implies that there is no material available to connect the accused persons with the commission of the alleged offence.
38. With respect to the arguments advanced by Ld. Substitute Addl. Public Prosecutor for State that the refusal of the accused persons to join the TIP is sufficient incriminating circumstance against them, it is pertinent to mention Page No.39 of 43 FIR No. 7/2015 PS Dwarka Sector 23 State vs Rajesh Solanki @ Rajesh Chadhary & Ors that the TIP is not substantive piece of evidence. The same can merely used to corroborate the version stated during the trial before the court.
In the present case, PW-1 and PW-2 have not identified the accused persons as the offender during trial. In this case accused Rajesh Solanki and Santeder refused to join the TIP which has the effect of giving rise to an adverse inference against the accused persons qua their culpability.
In view of the hostility of the eye witnesses qua the identity of the accused persons as offenders during trial, adverse inference of culpability of the accused arising on the basis of refusal to join TIP, stands washed off. So, this argument of Ld. Sub. Addl. PP for State does not hold any water. These facts and observations further show that there is no material/circumstance available on record to connect the accused persons with the commission of alleged offences.
It is already evident from the aforementioned discussion that identity of the accused persons as offenders and factum of causing of the alleged incident has not been established. It is further pertinent to mention that the prosecution did not bring any material suggesting the sharing of common intention by the accused persons for commission of the alleged offences. Neither any telephonic record or nor any other electronic evidence or other direct evidence has been brought on record suggesting even their presence at the spot so as to assume that there was ever an occasion for the accused persons to share common intention for committing the alleged offences at the spot.
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39. Regarding the burden of proving the prosecution version it is pertinent to mention the case law reported as " Sadhu Singh Vs. State of Punjab : 1997 (3) Crime 55, wherein the Punjab & Haryana High Court had observed that-
" In a criminal trial it is for the prosecution to establish its case beyond reasonable doubts. It is for the prosecution to travel the entire distance from 'may have' to 'must have'. If the prosecution appears to be improbable or lacks credibility the benefit of doubt necessarily has to go to the accused".
40. Following the aforesaid observations and considering the inconsistencies, contradiction and incoherent testimonies as well as discrepancies and omissions made by the prosecution, this Court is of the view that prosecution has not been able to travel the entire distance from 'may have' to 'must have' and thus it can not be said that prosecution has been able to prove its case beyond reasonable doubts.
41. It thus emerges from the aforesaid discussion and perusal of testimonies of PWs as well as record that there is neither any reliable eyewitness of the incident nor any other circumstance to prove the identity of accused persons as assailants, the factum of happening of the alleged incident of firing bullet at complainant in alleged manner, the fact that the accused persons were the offenders who had run away in the car bearing number DL-8CS-0200, the factum of recovery of the empty and live cartridges from the spot of firing in Page No.41 of 43 FIR No. 7/2015 PS Dwarka Sector 23 State vs Rajesh Solanki @ Rajesh Chadhary & Ors Dwarka and dash board of the aforesaid car at Jhatikra Mor respectively, the factum of firing of cartridge by the accused persons at the spot of firing by using the licensed pistol whose empty shell was found at the spot and factum of violation of conditions of the license of the pistol by accused Satender which are necessary elements for completion of offence punishable under section 307/34 IPC and under section 30 Arms Act.
42. Considering the afore-discussed testimonies, this Court is of the view that arguments advanced by the Ld. Substitute Additional Public Prosecutor for the State that the prosecution has proved all the ingredients necessary for completion of the alleged offences do not have any force whereas the arguments made on behalf of defence that the accused has been falsely implicated, are found to be justified.
43. In view of the aforesaid discussion, this Court is of the view that the prosecution has not been able to prove its case against the accused persons beyond reasonable doubts. Accordingly, accused Rajesh Solanki and Satender Kumar are hereby acquitted of charge punishable u/s 307/34 IPC and 30 Arms Act respectively. Bail bonds stands cancelled and Sureties be discharged, if any. Documents, if any, be returned to the rightful person against receiving and after cancellation of endorsement, if any.
44. Bail bonds and surety bonds are furnished in compliance of Section 437 Page No.42 of 43 FIR No. 7/2015 PS Dwarka Sector 23 State vs Rajesh Solanki @ Rajesh Chadhary & Ors (A) Cr.P.C Same are considered and accepted for a period of six months from today.
45. File be consigned to the Record Room after due compliance.
Announced in open Court
Today on 28.02.2023 (VIPLAV DABASS)
ADDITIONAL SESSIONS JUDGE:
FAST TRACK COURT
DWARKA COURTS, SOUTH-WEST
NEW DELHI
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