Delhi District Court
State vs . 1. Krishan Kumar @ Binnu @ Minnu on 27 November, 2014
FIR No. 60/09; U/s 307/394/397/411/482/201/34 IPC & Sec. 27 Arms Act; P.S. Prashant Vihar D.O.D. 27.11.2014 IN THE COURT OF SHRI VIDYA PRAKASH: ADDL. SESSIONS JUDGE04 (NORTH): ROHINI COURTS: DELHI Session Case No. 91/1/14 Unique Case ID No. 02404R0116682010 State Vs. 1. Krishan Kumar @ Binnu @ Minnu S/o Sh. Balwan Singh R/o Village Sundana, P.S. Kalanour, District Rohtak, Haryana 2. Vijender (absconding) S/o Sh. Lakhpat R/o Village Ahar Kurana, District Panipat, Haryana FIR No. : 60/09 Police Station : Prashant Vihar Under Sections : 307/394/397/411/482/201/34 IPC & 27 Arms Act Date of committal to Sessions Court: 04.03.2010 Date on which judgment was reserved: 27.11.2014 Date on which Judgment pronounced: 27.11.2014 JUDGMENT
The accused namely Krishan Kumar @ Binnu @ Minnu was sent to face trial in respect of offences U/s 307/394/397/411/482/201/34 IPC and Section 27 of Arms Act on the allegations that on 03.02.09 at about 7.30 P.M near service lane road Sector 16, Rohini, Delhi. He in furtherance of his common intention with his associate namely Vijender ( absconding) caused hurt by firing at complainant namely Gulab Singh with such intention or State V/s Krishan Kumar @ Binnu @ Minnu etc. ("Convicted") Page 1 of 27 FIR No. 60/09; U/s 307/394/397/411/482/201/34 IPC & Sec. 27 Arms Act; P.S. Prashant Vihar D.O.D. 27.11.2014 knowledge and under such circumstances that if by said act, he would have caused the death of Gulab Singh, he would have been guilty of committing culpable homicide amounting to murder and thereafter, he committed robbery of Santro car no. DL4CAG8274 and its key from complainant Gulab Singh and also voluntarily caused hurt to him at the time of committing robbery. It was also alleged that the accused herein was found in possession of aforesaid robbed car on 12.11.09, having fake number plate of DL4CA 8274 knowing or having reason to believe the said car to be robbed from Gulab Singh and he also caused material piece of evidence i.e pistol and Santro car robbed from Gulab Singh, to disappear with intention to screen himself from legal punishment.
The case of prosecution as mentioned in the charge sheet is that on receipt of DD no. 41 B on 03.02.09, SI Randhir Singh alongwith Ct. Sri Niwas went to BSA Hospital where injured Gulab Singh met them and gave statement before SI Randhir Singh. In the said statement, complainant Gulab Singh alleged that on that day at about 7.30 P.M when he was giving training to drive the car to his maternal aunt(mami) in Santro car no. DL4CAG8274 of black colour, two boys on motorcycle forced him to stop the said car and after firing at him with pistol, they robbed him of his said car alongwith its key and fled away from the spot.
After registration of FIR, investigation was entrusted to SI Randhir Singh who prepared site plan of the place of occurrence and also recorded statements of the witnesses.
State V/s Krishan Kumar @ Binnu @ Minnu etc. ("Convicted") Page 2 of 27 FIR No. 60/09; U/s 307/394/397/411/482/201/34 IPC & Sec. 27 Arms Act; P.S. Prashant Vihar D.O.D. 27.11.2014 It is alleged that during the course of investigation, the police officials of Crime Branch apprehended one person namely Mohit Chahbara @ Gauri @ Monu in case FIR no. 170/09 U/s 25 Arms Act regarding recovery of revolver from him. During interrogation, said Mohit Chahbara @ Gauri @ Monu disclosed that he had purchased the said revolver from one Krishan Kumar @ Binnu @Meenu i.e the accused herein, for a sum of Rs. 1.50,000/ (Rupees One lakh fifty thousand only).
It is further alleged that on 12.11.09 at about 5.15 P.M, the police officials of Crime Branch also apprehended the present accused alongwith one Santro car bearing number plate of DL4CA 8274 of black colour from T point Sector 18 Rohini, and on interrogation, he made disclosure statement confessing his involvement alongwith involvement of his associate in the present case. Accordingly, said Santro car was seized by police officials of Crime Branch and intimation was given in PS Prashant Vihar.
It is claimed that on receipt of said intimation, the accused was formally arrested in this case and Santro car was also got transferred from PS Crime Branch to PS Prashant Vihar. On verification , it was revealed that actual registration of said Santro car was DL4CAG 8274 which was robbed during the incident in question. After completion of investigation, chargesheet was filed before the Court.
After compliance of Section 207 Cr.P.C., the case was committed to the Court of Sessions and was assigned to Ld. Predecessor of this Court.
After hearing arguments on the point of charge, Ld. Predecessor State V/s Krishan Kumar @ Binnu @ Minnu etc. ("Convicted") Page 3 of 27 FIR No. 60/09; U/s 307/394/397/411/482/201/34 IPC & Sec. 27 Arms Act; P.S. Prashant Vihar D.O.D. 27.11.2014 of this Court was pleased to frame the charges u/s 307/397/411/482/201/34 IPC and Section 25/27 Arms Act against accused Krishan Kumar @ Binnu @ Minnu vide order dated 17.05.2010 to which said accused pleaded not guilty and claimed trial.
In support of its case, prosecution has examined 26 witnesses namely PW1 Dr. Bhavna Jain, PW2 Gulab Singh, PW3 SI Shyam Sunder, PW4 HC Shailender Singh, PW5 Smt. Baby PW6 Sh. Pawan Kumar, PW7 HC Shri Niwas, PW8 Ct. Suresh, PW9 Dr. Rajeev Ranjan, PW10 Ct. Nehpal Singh, PW11 HC Mukesh Kumar, PW12 Retd. ASI Rai Singh, PW13 Dr. Prashant Saxena, PW14 Sh. Rakesh Tyagi, PW15 SI Prem Singh, PW16 HC Sanjeev Kumar, PW17 Ms. Shunali Gupta, PW18 Retd. ASI Dev Karan, PW19 Retd. SI Randhir Singh, PW20 Inspector Rajesh Kumar, PW21 Sh. Rajender Singh, PW22 Ct. Jagroop Singh, PW23 Sh. Vishram, PW24 HC Adal Singh, PW25 HC Chand Ram and PW26 Inspector Pratap Singh during trial till 13.10.2014.
Thereafter, statement U/s 313 Cr.P.C. of accused Krishan Kumar @ Binnu @ Minnu was recorded during which all the incriminating evidence which came on record, were put to him which he denied. The accused claimed that he is innocent and has been falsely implicated in this case. However, accused opted not to lead any evidence towards his defence.
I have heard Sh. Pankaj Bhatia, Ld. Addl. PP on behalf of State and ld. Amicus Curiae Ms. Surbhi Bhasin, Adv. on behalf of accused Krishan State V/s Krishan Kumar @ Binnu @ Minnu etc. ("Convicted") Page 4 of 27 FIR No. 60/09; U/s 307/394/397/411/482/201/34 IPC & Sec. 27 Arms Act; P.S. Prashant Vihar D.O.D. 27.11.2014 Kumar @ Binnu @ Minnu. I have also gone through the material available on record.
Before discussing the rival submissions made on behalf of both the sides, it would be appropriate to discuss, in brief, the testimonies of prosecution witnesses which have come on record. The said testimonies are detailed as under: PUBLIC WITNESSES PW2 Sh Gulab Singh: He is the complainant/injured in this case. However, he has not supported the case of prosecution on material aspects. He deposed that at about 9.00 A.M when he was giving training of driving car to his maternal aunt(mami) in Santro car no. DL4CG 8274, two boys who were in muffled face, came on motorcycle from its front side. One of the said boys took out pistol and fired at him due to which he sustained bullet injury on his leg and ultimately, the said boys took away the car.
He further deposed that he made call at 100 number on which police came at the spot and recorded his statement Ex PW2/A. He was taken to hospital by the police where he was medically examined. However, he categorically deposed that he cannot identify those boys who had committed the offence against him.
This witness was cross examined by Ld Additional PP on behalf of State as he was not supporting the case of prosecution. During said cross examination, he denied all the relevant suggestions put to him on the lines of State V/s Krishan Kumar @ Binnu @ Minnu etc. ("Convicted") Page 5 of 27 FIR No. 60/09; U/s 307/394/397/411/482/201/34 IPC & Sec. 27 Arms Act; P.S. Prashant Vihar D.O.D. 27.11.2014 prosecution story. Not only this, his attention was also drawn towards accused Krishan Kumar @ Binnu @ Minnu but he claimed that said accused is not the same person who alongwith another boy had come to the spot and fired at him and robbed his car.
In his cross examination on behalf of accused, he deposed that they had received information about recovery of robbed car after about one and half years of the incident and the car was in damaged condition.
PW5 Smt. Baby: This witness was also present at the time of incident as she was learning driving the car from victim Gulab Singh(PW2) as per the case of prosecution. She supported the prosecution story to the extent that incident of robbery of aforesaid Santro car had taken place as also to the effect that assailants had fired at her nephew (bhanja) namely Gulab Singh during the course of incident but she claimed that she cannot identify the offenders who had committed the offence. Thus, this witness was also cross examined by Ld Additional PP on behalf of State.
During such cross examination, she deposed that she was not sure as to whether accused Krishan Kumar @ Binnu @ Minnu shown to him in the Court, was one of those boys who had come on motorcycle on the date of incident and after firing at Gulab Singh, had taken away their Santro car. She also denied that on 22.10.10, she alongwith her husband and nephew Gulab Singh had visited Rohini Court where she had identified accused Krishan Kumar to be the same person who had fired upon her Bhanja and had committed robbery of the car.
State V/s Krishan Kumar @ Binnu @ Minnu etc. ("Convicted") Page 6 of 27 FIR No. 60/09; U/s 307/394/397/411/482/201/34 IPC & Sec. 27 Arms Act; P.S. Prashant Vihar D.O.D. 27.11.2014 This witness has not been cross examined by accused despite grant of opportunity.
PW6 Pawan Kumar: This witness is the registered owner of Santro car no. DL4CAG 8274 besides being maternal uncle of complainant Sh Gulab Singh. He deposed that on receipt of telephone call from his nephew Gulab Singh about the incident of robbery of his Santro car at about 7.30/7.45 P.M, he rushed to the place of occurrence and found that his nephew had received injuries on his feet. He made PCR call at 100 number on which PCR Van came and removed his nephew to government hospital. He had handed over copy of insurance to the police. He produced the Santro car Ex P1 during trial.
This witness was also cross examined by Ld Additional PP on behalf of State during which he denied the suggestion that he alongwith his wife(PW5) and his nephew(PW2) had visited Rohini Court on 22.01.10 where accused herein was identified by his wife and nephew to be the same person who had fired upon his nephew and had robbed the car.
In his cross examination on behalf of accused, he deposed that CNG kit and AC of his car were found removed and there was no battery in the car and he had removed the car from PS Prashant Vihar through crane. POLICE WITNESSES PW3 SI Shyam Sunder, PW4 HC Shailender and PW11 HC Mukesh Kumar Tyagi: State V/s Krishan Kumar @ Binnu @ Minnu etc. ("Convicted") Page 7 of 27 FIR No. 60/09; U/s 307/394/397/411/482/201/34 IPC & Sec. 27 Arms Act; P.S. Prashant Vihar D.O.D. 27.11.2014 All these three witnesses were posted in Special Team, Crime Branch during the relevant period. They deposed that on 05.10.09, HC Shailender received secret information on the basis of which raiding party headed by Inspector Shyam Sunder was prepared and at about 11.30 P.M, they apprehended one person namely Mohit Chahbra @ Gauri and recovered one revolver from his possession. On enquiry, Mohit Chahbara @ Gauri disclosed that he had purchased the said revolver from Krishan Kumar for a sum of Rs. 1.5 lacs. Accordingly, FIR no. 170/09, U/s 25 Arms Act & U/s 411 IPC was registered at PS Crime Branch. They also deposed about the relevant proceedings carried out in the said case on that day.
They further deposed that on 12.11.09, HC Shailender received another secret information on the basis of which raiding party was prepared and at about 5.15 P.M, accused herein namely Krishan Kumar @ Binnu @ Minnu was apprehended alongwith one Santro car of black colour bearing no. DL4CA8274. The actual registration number of said Santro car was found to be DL4CAG 8274 after making verification from Transport Authority and it was found to be robbed car of the present case. Accordingly, intimation was given to PS Prashant Vihar and relevant documents of the case were handed over to IO of this case.
In his cross examination, PW3 SI Shyam Sunder (now Inspector) could not disclose the number of departure entry made on 12.11.09. He deposed that no site plan was prepared by HC Shailender in his presence on that day. He explained that after checking the engine number and chasis State V/s Krishan Kumar @ Binnu @ Minnu etc. ("Convicted") Page 8 of 27 FIR No. 60/09; U/s 307/394/397/411/482/201/34 IPC & Sec. 27 Arms Act; P.S. Prashant Vihar D.O.D. 27.11.2014 number of the car, it was got verified that the actual registration number of the said car was DL4CAG 8274. HC Shailender had prepared the seizure memo of the said car. He admitted that place of arrest of accused was thorough fare and explained that despite request being made to certain passersby for joining the proceedings, none agreed and all left the spot without disclosing their names and addresses.
In his cross examination, PW4 HC Shailender(now ASI) also could not disclose the number of departure entry made on 12.11.09. He admitted that no evidence came to surface during investigation of case FIR no. 170/09 with PS Crime Branch which can establish any connection between Mohit Chahbara @ Gauri and accused Krishan Kumar @ Binnu @ Minnu.
He admitted that there were different parks situated at two sides of the place of apprehension of accused Krishan Kumar @ Binnu @ Minnu and no effort was made to call any public person from said parks for joining the proceedings. He explained that disclosure statement Ex PW4/A of accused Krishan Kumar was recorded in the office of Crime Branch at Prashant Vihar. He had prepared the seizure memo Ex PW4/B of Santro car and it was also signed by PW HC Mukesh Kumar Tyagi. He denied the relevant suggestion that no such Santro car was recovered from the possession of accused Krishan Kumar @ Binnu @ Minnu and his signatures were forcibly obtained on the blank papers in the PS. In his cross examination, PW11 HC Mukesh Kumar deposed that State V/s Krishan Kumar @ Binnu @ Minnu etc. ("Convicted") Page 9 of 27 FIR No. 60/09; U/s 307/394/397/411/482/201/34 IPC & Sec. 27 Arms Act; P.S. Prashant Vihar D.O.D. 27.11.2014 they all were in plain clothes and despite requests being made, public persons had refused to join the proceedings. The registration number and chasis number of the recovered Santro car, were mentioned in the seizure memo Ex PW4/B of the said car.
PW7 HC Sri Niwas and PW19 SI Randhir Singh(Retd): According to the case of prosecution, these two witnesses had rushed to BSA Hospital on receipt of DD no. 41B in PS Prashant Vihar on 03.02.09.
Both these witnesses deposed on identical lines to the effect that on their arrival in BSA Hospital, SI Randhir Singh recorded statement Ex PW2/A of injured Gulab Singh, prepared rukka Ex PW19/A on the basis thereof and got the FIR registered through Ct. Sri Niwas. SI Randhir Singh also seized pullanda containing jeans pant of injured sealed with the seal of BSA Hospital, vide seizure memo Ex PW7/A and also prepared site plan Ex PW19/B at the instance of complainant Gulab Singh.
In his cross examination, PW7 denied the suggestion that he did not visit hospital with SI Randhir Singh and did not get the FIR registered as claimed.
In his cross examination, PW19 deposed that he did not hand over any bullet to him in the hospital. He admitted that complainant did not disclose the name of any offender in his statement Ex PW2/A. PW8 Ct. Suresh and PW20 Inspector Rajesh Kumar: According to the case of prosecution, these two witnesses had State V/s Krishan Kumar @ Binnu @ Minnu etc. ("Convicted") Page 10 of 27 FIR No. 60/09; U/s 307/394/397/411/482/201/34 IPC & Sec. 27 Arms Act; P.S. Prashant Vihar D.O.D. 27.11.2014 visited Rohini Court on 13.11.09 and formally arrested accused Krishan Kumar @ Binnu @ Minnu in the present case.
Both these witnesses proved arrest memo and disclosure statement of accused as Ex PW8/A and Ex PW20/A respectively. PW20 further deposed that accused Krishan Kumar @ Binnu @ Minnu refused to participate in judicial TIP on 18.11.09 vide TIP proceedings Ex PW17/B. He got the Santro car transferred from PS Crime Branch to PS Prashant Vihar.
In his cross examination, PW8 denied the suggestion that accused did not make any disclosure statement and his signatures were obtained on blank papers.
In his cross examination, PW20 clarified that Santro car was got transferred from PS Crime Branch to PS Prashant Vihar through Ct. Jagroop. He himself did not visit the place of recovery of robbed car and he did not prepare any separate seizure memo of number plates (alleged fake number plates) nor the number plates were taken out from the car. He claimed that letter 'G' was missing in number plate appearing on Santro car when it was brought to PS Prashant Vihar.
PW10 Ct. Nehpal Singh: This witness was posted as Duty Constable in BSA Hospital from PS South Rohini on 03.02.09. He had given intimation regarding admission of injured Gulab Singh in the said hospital, to Duty Officer of PS Prashant Vihar.
This witness has not been cross examined by accused despite grant of opportunity.
State V/s Krishan Kumar @ Binnu @ Minnu etc. ("Convicted") Page 11 of 27 FIR No. 60/09; U/s 307/394/397/411/482/201/34 IPC & Sec. 27 Arms Act; P.S. Prashant Vihar D.O.D. 27.11.2014 PW12 ASI Rai Singh (Retd.): This witness was posted as In charge of PCR Van Libra 42, Outer Zone on 03.02.2009. He deposed that on receipt of message from Control Room at about 7.39 and another message at 7.42, he rushed to the place of information where he came to know that injured had been removed to BSA Hospital by concerned SHO in his official gypsy. He followed them to BSA Hospital where injured Subhash was found admitted alongwith one lady and accordingly, he left the hospital. This witness has not been cross examined on behalf of accused.
PW15 SI Prem Singh: This witness produced relevant record i.e. attested copy of PCR form regarding receiving of a call as available in the Record Branch of PCR, at about 19:39:51 regarding firing at one boy by bullet on 03.02.2009, which was recorded by W/Ct. Reena therein. He proved copy of said PCR form as Ex.PW15/A and attested copy of another information recieved on that date at about 19:41:36 from caller regarding the said incident, as Ex.PW15/B. He has not been cross examined on behalf of accused.
PW16 HC Sanjeev Kumar: This witness was working as DD writer in PS Prashant Vihar on 03.02.2009. He deposed that at about 8.45 pm, he had received information from Duty Constable Nehpal Singh of BSA Hospital regarding admission of Gulab Singh in the said hospital being brought by ASI Rai Singh of PCR. He recorded the said information vide DD No. 41B and proved copy of said DD entry as Ex.PW16/A. He has not been cross examined on behalf of accused.
PW18 ASI Dev Karan (Retd.): This witness has proved factum State V/s Krishan Kumar @ Binnu @ Minnu etc. ("Convicted") Page 12 of 27 FIR No. 60/09; U/s 307/394/397/411/482/201/34 IPC & Sec. 27 Arms Act; P.S. Prashant Vihar D.O.D. 27.11.2014 regarding registration of FIR in question in PS Prashant Vihar on 03.02.2009. He exhibited computerized copy of FIR as Ex PW18/A and his endorsement on the rukka as Ex.PW18/B. He has not been cross examined on behalf of accused.
PW21 ACP (Retd.) Rajender Singh: This witness deposed that on 02.02.2009 at about 7.35 pm when he was present at the house of his brotherinlaw Vijay Singh, a call was received from Gulab Singh regarding the incident of robbery and causing injury to him with gun shot. Accordingly, he made PCR call at 100 number from the mobile phone of said Vijay Singh.
In his cross examination, he deposed that he himself did not talk with Gulab Singh on telephone and he was informed about the incident by Vijay Singh. He did not visit the hospital or the place of occurrence on that day.
PW22 Ct. Jagroop Singh: This witness had brought the robbed Santro car from PS Crime Branch to PS Prashant Vihar on 22.12.2009. He deposed that he obtained Santro Car bearing No. DL4CAG8274 vide R.C. No. 429/21/09 from PS Crime Branch and deposited the same in Malkhana of PS Prashant Vihar.
In his cross examination, he reiterated that said Santro Car was having number plate of DL4CAG8274 when he brought the same from Crime Branch and he himself had driven the said car from the office of Crime Branch to PS Prashant Vihar.
PW24 HC Adal Singh: This witness has produced copy of FIR State V/s Krishan Kumar @ Binnu @ Minnu etc. ("Convicted") Page 13 of 27 FIR No. 60/09; U/s 307/394/397/411/482/201/34 IPC & Sec. 27 Arms Act; P.S. Prashant Vihar D.O.D. 27.11.2014 No. 170/09 of PS Crime Branch as Ex.PW24/A. PW25 HC Chand Ram: This witness was working as MHC(M) in PS Crime Branch during the relevant period. He deposed that on 12.11.2009, HC Shailender Singh had deposited one Santro Car bearing No. DL4CAG827 in Malkhana vide FIR No. 170/09 of PS Crime Branch. He further deposed that said Santro Car was transferred to PS Prashant Vihar vide R.C. No. 429/21/09 through Ct. Jagroop. He proved copy of relevant entry of register no. 19 as Ex.PW25/B. He has not been cross examined on behalf of accused.
PW26 Inspector Pratap Singh: This witness remained investigating officer in this case for few days and no material investigation has been conducted by him during the said period.
He admitted in his cross examination that he did not record any supplementary statement of complainant Gulab Singh or of Smt. Baby. MEDICAL EVIDENCE: PW1 Dr. Bhavana Jain: This witness had initially examined injured Gulab Singh in BSA Hospital on 03.02.2009. She has proved MLC of injured Gulab Singh as Ex.PW1/A. She deposed that she had handed over sealed pullanda containing one black jeans pant of injured Gulab Singh to IO of this case. This witness has not been cross examined on behalf of accused.
PW9 Dr. Rajeev Ranjan: This witness appeared on behalf of PW Dr. Deepika Raina of BSA Hospital and identified the handwriting and State V/s Krishan Kumar @ Binnu @ Minnu etc. ("Convicted") Page 14 of 27 FIR No. 60/09; U/s 307/394/397/411/482/201/34 IPC & Sec. 27 Arms Act; P.S. Prashant Vihar D.O.D. 27.11.2014 signature of Dr. Deepika Raina on the xray report Ex.PW9/A of patient Gulab Singh. According to said report, there was no bony injury found to have been sustained by Gulab Singh. He has not been cross examined on behalf of accused.
PW13 Dr. Prashant Saxena: This witness appeared on behalf of Dr. Dhananjay of BSA Hospital and identified the handwriting and signature of Dr. Dhananjay on the MLC Ex.PW1/A of injured Gulab Singh. He deposed that as per the opinion given by Dr. Dhananjay on the MLC of injured Gulab Singh, injured had sustained simple injury. FORMAL WITNESSES: PW14 Sh. Rakesh Tyagi: This witness produced relevant record regarding ownership of Santro Car bearing No. DL4CAG8274. He deposed that the said car was registered in the name of Pawan Kumar S/o Late Sh. Dewan Singh, in the record of Transport Authority. He proved the relevant document as Ex.PW14/A. In his cross examination, he admitted that relevant record was not prepared either by him or in his presence as he had joined the office subsequently.
PW17 Ms. Shunali Gupta: This witness had conducted judicial TIP of accused Krishan Kumar @ Binnu on 18.11.2009. She deposed that accused had refused to join judicial TIP despite the fact that he had been duly warned that his refusal to join the judicial TIP, may draw an adverse inference against him. She proved the TIP proceeding as Ex.PW17/B. She has not been State V/s Krishan Kumar @ Binnu @ Minnu etc. ("Convicted") Page 15 of 27 FIR No. 60/09; U/s 307/394/397/411/482/201/34 IPC & Sec. 27 Arms Act; P.S. Prashant Vihar D.O.D. 27.11.2014 cross examined on behalf of accused.
PW23 Sh. Vishram: This witness produced judicial record of case FIR No. 170/09 of PS Crime Branch as it was containing original seizure memo of Santro Car bearing No. DL4CAG8274 and other relevant documents. The said documents were shown to other prosecution witnesses during trial. He has not been cross examined on behalf of accused.
ARGUMENTS ADVANCED & CASE LAW CITED While opening the arguments, Ld Additional PP argued that prosecution has been able to establish the charges levelled against accused Krishan Kumar @ Binnu @ Minnu in view of ocular evidence coupled with medical evidence brought on record.
Per contra, Ld. Amicus Curiae vehemently argued that prosecution has miserably failed to prove its case in respect of any of the offences charged against the accused. In order to buttress the said submission, she referred to the testimonies of public witnesses namely PW2 Gulab Singh and PW5 Smt. Baby, in order to bring home the point that both the said public witnesses have not identified the accused to be the offender involved in the commission of offences alleged in this case.
As regards, the offences U/s 307/394/397/34 IPC, it was essential for the prosecution to lead cogent evidence for proving that accused Krishan Kumar @ Binnu @ Minnu was present at the scene of crime and he had fired at complainant Gulab Singh or caused any hurt to him. It was also essential State V/s Krishan Kumar @ Binnu @ Minnu etc. ("Convicted") Page 16 of 27 FIR No. 60/09; U/s 307/394/397/411/482/201/34 IPC & Sec. 27 Arms Act; P.S. Prashant Vihar D.O.D. 27.11.2014 for the prosecution to establish that it was accused Krishan Kumar who had committed robbery against complainant on the alleged date, time and place.
As already discussed above, both the star witnesses of prosecution namely PW2 Gulab Singh and PW5 Smt. Baby categorically deposed that accused Krishan Kumar was neither present at the spot nor was involved in the commission of alleged offence despite the fact that accused was pointed out to both the said witnesses during trial.
Moreover, the weapon of offence i.e. revolver allegedly recovered from the possession of Mohit Chhabra @ Gauri @ Monu in case FIR No. 170/09 of PS Crime Branch, also could not be connected with the present case. In this regard, the relevant portion of testimony of PW4 HC Shailender Singh assumes importance whereby he testified that during investigation of case FIR No. 170/09 (he being IO of said case) no evidence came to surface which could establish any link between accused Mohit Chhabra @ Gauri @ Monu and the present accused i.e. Krishan Kumar @ Binnu @ Minnu.
There are certain more reasons due to which Court is of the view that prosecution has failed to establish the charges levelled against accused Krishan Kumar @ Binnu @ Minnu in respect of above mentioned offence.
Firstly, the case of prosecution as per chargesheet, is that incident had taken place at 7.30 pm on 03.02.2009 but its star witness namely PW2 Gulab Singh deposed during trial that incident had taken place somewhere after 9 am in the morning. Not only this, he categorically denied the suggestion put to him on behalf of prosecution during cross examination that State V/s Krishan Kumar @ Binnu @ Minnu etc. ("Convicted") Page 17 of 27 FIR No. 60/09; U/s 307/394/397/411/482/201/34 IPC & Sec. 27 Arms Act; P.S. Prashant Vihar D.O.D. 27.11.2014 incident had taken place at 7.30 pm;
Secondly, the prosecution story as mentioned in the chargesheet is that both the offenders who had come on their motorcycle, were seen by public witnesses i.e. PW2 Gulab Singh and PW5 Smt. Baby. However, both of them testified during chief examination that they did not have the occasion to see the faces of offenders as their faces were covered with some clothes at that time;
Thirdly, the relevant part of prosecution story as put forward before the Court that public witnesses namely PW2 Gulab Singh and PW5 Smt. Baby had identified accused Krishan Kumar @ Binnu @ Minnu in Rohini Court Complex on 22.10.2010 when he was produced before the Court, stood demolished in as much as PW5 Smt. Baby and PW6 Sh. Pawan Kumar categorically denied the said fact. Both the said witnesses denied to have visited Rohini Court Complex on 22.10.2010 or the factum of accused Krishan Kumar @ Binnu @ Minnu having been identified by Gulab Singh (PW2) and / or by Smt. Baby (PW5);
Fourthly, it has been claimed by PW2 Gulab Singh that he had made call at 100 number. Likewise, it has been claimed by PW6 Pawan Kumar that he had also made call at 100 number after he reached the place of occurrence. Similarly, another prosecution witness namely PW21 Sh. Rajender Singh ACP (Retd.) also testified that he had made PCR call at 100 number from mobile phone of Vijay Singh on 02.02.2009. Said oral evidence has been contradicted by documentary evidence in the form of PCR forms State V/s Krishan Kumar @ Binnu @ Minnu etc. ("Convicted") Page 18 of 27 FIR No. 60/09; U/s 307/394/397/411/482/201/34 IPC & Sec. 27 Arms Act; P.S. Prashant Vihar D.O.D. 27.11.2014 Ex.PW15/A and Ex.PW15/B as proved by PW15 SI Prem Singh. In other words, the prosecution story provides that only two calls were received in police control room on the day of incident whereas three different prosecution witnesses i.e. PW2, PW6 and PW21, are claiming to have made three separate PCR calls at 100 number;
Fifthly, revolver allegedly recovered from the possession of Mohit Chhabra @ Gauri @ Monu in case FIR No. 170/09 of PS Crime Branch is not shown to have been got transferred from PS Crime Branch to PS Prashant Vihar. The investigating officer also failed to get TIP of said revolver conducted through public witnesses namely Gulab Singh (PW2) and Smt. Baby (PW5) during the course of investigation. Not only this, said revolver was also not shown to said two witnesses even during the course of trial;
Sixthly, although it has been alleged by prosecution that injured Gulab Singh (PW2) had sustained bullet injury on his leg, but the nature of injury sustained by him has been opined to be simple as per the opinion given by Dr. Dhananjay on MLC Ex.PW1/A of said injured. Not only this, no bony injury was found in the Xray report of injured Gulab Singh as deposed by PW9 Dr. Rajeev Ranjan who proved his Xray report Ex.PW9/A. In this backdrop, the prosecution story that injured Gulab Singh had sustained bullet injury, becomes doubtful.
Moreover, had it been the case that injured Gulab Singh had sustained bullet injury, then the said bullet or atleast piece of bullet (pellet) State V/s Krishan Kumar @ Binnu @ Minnu etc. ("Convicted") Page 19 of 27 FIR No. 60/09; U/s 307/394/397/411/482/201/34 IPC & Sec. 27 Arms Act; P.S. Prashant Vihar D.O.D. 27.11.2014 ought to have been recovered from the relevant part of his body which is not the case herein. Even if it is assumed for the sake of argument that bullet was misfired and passed through injured Gulab Singh, still in such an eventuality, it was the duty of the investigating officer to search for the said bullet from the place of occurrence. However, no such effort is shown or even claimed to have been made by the investigating officer. No explanation whatsoever is forthcoming from the mouth of prosecution witnesses on this aspect. Thus, reasonable doubt is created in the case of prosecution and accused is entitled to benefit thereof;
Seventhly, chargesheet alleged that injured Gulab Singh was taken to hospital by PCR Van whereas PW12 i.e Incharge of PCR Van deposed that injured had already been shifted to hospital by concerned SHO in official gypsy before his arrival at the spot; and Eighthly, the prosecution alleged that statement of injured Gulab Singh was recorded in the hospital but injured (PW2) deposed that his statement was recorded by the police at the spot.
So far as offence U/s 201/34 IPC is concerned, onus was again on prosecution to establish the said offence. However, there is nothing on record to show that accused Krishan Kumar @ Binnu @ Minnu caused any evidence connected with the offence involved in this case, destroyed or did any act with an intention to screen himself or his associate from legal punishment. Rather, it is the own case of prosecution that robbed Santro Car was subsequently recovered from the possession of accused Krishan Kumar @ Binnu @ State V/s Krishan Kumar @ Binnu @ Minnu etc. ("Convicted") Page 20 of 27 FIR No. 60/09; U/s 307/394/397/411/482/201/34 IPC & Sec. 27 Arms Act; P.S. Prashant Vihar D.O.D. 27.11.2014 Minnu. As already discussed above, pistol allegedly used in the commission of robbery has not been recovered as none of the prosecution witnesses made any whisper during trial that any pistol was actually used by accused Krishan Kumar @ Binnu @ Minnu or that said accused did any act with intention to destroy said pistol. In the absence of any cogent or plausible evidence being made available on record, Court is of the view that prosecution has failed to establish the said offence against accused Krishan Kumar @ Binnu @ Minnu. It is held accordingly.
Nevertheless, the prosecution has been able to establish the offence U/s 411 IPC regarding recovery of robbed Santro car from the possession of accused Krishan Kumar @ Binnu @ Minnu on 12.11.2009. For the said purpose, prosecution has examined three witnesses namely PW3 SI Shyam Sunder, PW4 HC Shailender Singh and PW11 HC Mukesh Kumar Tyagi. All the said three police witnesses have consistently deposed on the lines of prosecution story about the recovery of robbed Santro car from the possession of accused Krishan Kumar @ Binnu @ Minnu as also about the relevant writing work/ proceedings carried out by them at the spot. They have also proved relevant seizure memos of said Santro car during trial. They have duly corroborated each other on all material points. They have also successfully withstood the test of cross examination and nothing could be brought on record from the side of accused during their cross examination, which may discredit their testimony in this regard or may create reasonable doubt in the prosecution story.
State V/s Krishan Kumar @ Binnu @ Minnu etc. ("Convicted") Page 21 of 27 FIR No. 60/09; U/s 307/394/397/411/482/201/34 IPC & Sec. 27 Arms Act; P.S. Prashant Vihar D.O.D. 27.11.2014 Although, it has been argued by Ld. Amicus Curiae that no independent public witness has been joined at the time of recovery of Santro Car by the police officials despite their availability and thus, the testimonies of aforesaid three police witnesses are liable to be discarded. However, I am unable to accept the said argument for the reason that all the said three witnesses have been consistent in their explanation furnished during trial that public persons did not agree to join the recovery proceedings despite being requested to do so.
Moreover, law is not that testimony of police officers is absolutely untrustworthy or that it can never be acted upon. Rather, the law is that even the testimony of a police officer can be acted upon and a conviction can be based on such testimony if the testimony is unimpeached and found to be trustworthy.
Hon'ble Supreme Court in Anil @ Andya Sadashiv Nandorkar Vs. State J. T. 1996 (3) SC 120 has held that testimony of the police officials cannot be discredited merely because they are police officials if otherwise, their testimony is found to be cogent, trustworthy and reliable.
In the matter titled as State, Govt. of NCT of Delhi Vs. Sunil & Anr. reported at (2001) 1 SCC 652, Hon'ble Apex Court held as under: That it is an archaic notion that actions of the police officer should be viewed with initial distrust. At any rate, the Court cannot begin with the presumption that police records are untrustworthy. As a proposition State V/s Krishan Kumar @ Binnu @ Minnu etc. ("Convicted") Page 22 of 27 FIR No. 60/09; U/s 307/394/397/411/482/201/34 IPC & Sec. 27 Arms Act; P.S. Prashant Vihar D.O.D. 27.11.2014 of law, the presumption should be the other way around. The wise principle of presumption, which is also recognized by the legislature, is that judicial and official acts are regularly performed. Hence, when a police officer gives evidence in Court that a certain article was recovered by him on the strength of the statement made by the accused it is open to the Court to believe that version to be correct if it is not otherwise shown to be unreliable. The burden is on the accused, through crossexamination of witnesses or through other materials, to show that the evidence of the police officer is unreliable. If the Court has any good reason to suspect the truthfulness of such records of the police the Court could certainly take into account the fact that no other independent person was present at the time of recovery. But it is not a legally approvable procedure to presume that police action is unreliable to start with, nor to jettison such action merely for the reason that police did not collect signatures of independent persons in the documents made contemporaneous with such actions.
In the matter ' Laxmibai (dead) Thr. L.Rs. & Anr. Vs. Bhagwantbhuva (dead) Thr. L.Rs. & Ors.' reported at AIR 2013 SC 1204 SC examined similar issue and held:
"Furthermore, there cannot be any dispute with respect to the settled legal proposition, that if a party wishes to raise any doubt as regards the correctness of the statement of a witness, the said witness must be given an opportunity to explain his statement by drawing his attention to that part of it, which has been objected to by the other party, as being unture. State V/s Krishan Kumar @ Binnu @ Minnu etc. ("Convicted") Page 23 of 27 FIR No. 60/09; U/s 307/394/397/411/482/201/34 IPC & Sec. 27 Arms Act; P.S. Prashant Vihar D.O.D. 27.11.2014 Without this, it is not possible to impeach his credibility. Such a law has been advanced in view of the statutory provision enshrined in Section 138 of the Evidence Act, 1872, which enable the opposite party to cross examine a witness as regards information tendered in evidence by him during his initial examination in chief, and the scope of this provision stands enlarged by Section 146 of the Evidence Act, which permits a witness to be questioned, interalia, in order to test his veracity. Thereafter, the unchallenged part of his evidence is to be relied upon, for the reason that it is impossible for the witness to explain or elaborate upon any doubts as regards the same, in the absence of questions put to him with respect to the circumstances which indicate that the version or events provided by him, is not fit to be believed, and the witness himself, is unworthy of credit. Thus, if a party intends to impeach a witness, he must provide adequate opportunity to the witness in the witness box, to give a full and proper explanation. The same is essential to ensure fair play and fairness in dealing with witnesses".
In view of the aforesaid discussion, Court is of the view that prosecution has been successful in establishing the guilt of accused Krishan Kumar @ Binnu @ Minnu for offence U/s 411 IPC beyond shadow of doubt.
This brings me down to offence U/s 482 IPC charged against the said accused. Although, it has been alleged by prosecution that Santro Car was found bearing fake number plate of DL4CA8274, whereas actual number plate of the said car was DL4CAG8274 but the relevant piece of State V/s Krishan Kumar @ Binnu @ Minnu etc. ("Convicted") Page 24 of 27 FIR No. 60/09; U/s 307/394/397/411/482/201/34 IPC & Sec. 27 Arms Act; P.S. Prashant Vihar D.O.D. 27.11.2014 evidence which has been brought on record, is quite contradictory in this regard. All the three recovery witnesses of prosecution namely PW3 SI Shyam Sunder, PW4 HC Shailender Singh and PW11 HC Mukesh Kumar Tyagi have deposed during their respective testimonies that number plate appearing on the Santro Car was DL4CA8274 at the time of its recovery from the possession of accused Krishan Kumar @ Binnu @ Minnu but said part of their testimonies stood demolished by the testimony of PW22 Ct. Jagroop Singh when he deposed that Santro car was having number plate of DL4CAG8274 when he received the same from MHC(M) of PS Crime Branch at the time of its shifting from PS Crime Branch to PS Prashant Vihar on 22.12.2009. Likewise, PW25 HC Chand Ram who was working as MHC(M) of PS Crime Branch, also deposed in same echo when he deposed that HC Shailender Singh (PW4) had deposited Santro Car bearing no. DL4CAG8274 in Malkhana on 06.10.2009 and the car in its same condition, was handed over to Ct. Jagroop Singh of PS Prashant Vihar on 23.12.2009. It is not understandable as to when the robbed Santro car was bearing fake number plate of DL4CA8274 at the time of its recovery from accused Krishan Kumar @ Binnu @ Minnu, then as to how its number changed to DL4CAG8274 at the time of its deposit in the Malkhana of PS Crime Branch. Moreover, PW20 Inspector Rajesh Kumar (IO) also admitted during cross examination that neither separate seizure memo of fake number plate was prepared nor number plates were taken out from the Santro Car nor deposited in the Malkhana by him.
State V/s Krishan Kumar @ Binnu @ Minnu etc. ("Convicted") Page 25 of 27 FIR No. 60/09; U/s 307/394/397/411/482/201/34 IPC & Sec. 27 Arms Act; P.S. Prashant Vihar D.O.D. 27.11.2014 In view of these reasons, Court is of the view that prosecution has failed to establish the offence U/s 482 IPC against accused Krishan Kumar @ Binnu @ Minnu, beyond reasonable doubt.
Accused has also been charged U/s 25/27 Arms Act on the basis that he got recovered one revolver from accused Mohit Chhabra @ Gauri @ Monu in case FIR No. 170/09 of PS Crime Branch and had used the said revolver while committing robbery against Gulab Singh (PW2). However, said charge also could not be established during trial. Rather, the prosecution has failed to prove the said charge as PW4 HC Shailender Singh who was IO of case FIR No. 170/09 of PS Crime Branch, himself admitted in his cross examination that no evidence came to surface during investigation of said case, which may show that there was any connection between accused Mohit Chhabra @ Gauri @ Monu and accused Krishan Kumar @ Binnu @ Minnu. Moreover, the said revolver was neither transferred to PS Prashant Vihar as property of this case nor shown to the public witnesses i.e. PW2 and PW5 during trial. There is another reason for which said offences could not be proved by the prosecution. Accused Mohit Chhabra @ Gauri @ Monu is alleged to have been apprehended by police officials of PS Crime Branch alongwith revolver on 05.10.2009 whereas present accused Krishan Kumar @ Binnu @ Minnu is claimed to have been apprehended by those very police officials of PS Crime Branch alongwith robbed Santro Car on 12.11.2009. Thus, it cannot be said that present accused got recovered any revolver from Mohit Chahbara @ Gauri.
State V/s Krishan Kumar @ Binnu @ Minnu etc. ("Convicted") Page 26 of 27 FIR No. 60/09; U/s 307/394/397/411/482/201/34 IPC & Sec. 27 Arms Act; P.S. Prashant Vihar D.O.D. 27.11.2014 Undisputedly, no revolver has been recovered either from the possession of accused Krishan Kumar @ Binnu @ Minnu or at his instance. There must be conscious position of arms and/or ammunition for attracting offence U/s 25 Arms Act against an accused which is also found missing in the present case.
In view of the aforesaid discussion, Court is of the considered view that prosecution has failed to bring home the guilt of accused Krishan Kumar @ Binnu @ Minnu in respect of offences U/s 307/394/397/482/201/34 IPC. Consequently, said accused stands acquitted in respect of these offences. However, the prosecution has been successful in establishing the charge for offence punishable U/s 411 IPC against accused Krishan Kumar @ Binnu @ Minnu by proving that robbed Santro Car no. DL4CAG8274 was recovered from his possession on 12.11.2009 and the said accused was having knowledge or reason to believe that said Santro Car was robbed one. Accordingly, accused Krishan Kumar @ Binnu @ Minnu is hereby convicted for the offence U/s 411 IPC.
Announced in open Court today
On 27.11.2014 (Vidya Prakash)
Additional Sessions Judge04 (North)
Rohini Courts/Delhi
State V/s Krishan Kumar @ Binnu @ Minnu etc. ("Convicted") Page 27 of 27