Delhi District Court
State vs . Vikrant @ Vicky & Ors. on 2 January, 2014
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IN THE COURT OF MS. ILLA RAWAT : ADDL. SESSIONS JUDGE
(NORTHWEST)01, ROHINI : DELHI
(Sessions Case No. 30/10)
Unique ID case No. 02404R0070862010
State Vs. Vikrant @ Vicky & Ors.
FIR No. : 366/09
U/s : 307/392/394/397/34 IPC
& 25/54/59 Arms Act
P.S. : Model Town
State Vs. 1. Vikrant @ Vicky
S/o Sh. Ram Kumar
R/o H. No. A620, Jahangir Puri,
Delhi.
2. Arun Kumar Jha
S/o Sh. Ganga Nath Jha
R/o 42324, II Floor,
Jahangir Puri, Delhi.
3. Inder @ Munna
S/o Dev Raj
R/o Fish Market, Ganda Nala,
Mukund Pur Village, Delhi.
Date of institution of case 10.03.2010
Date on which judgment has been reserved : 02.01.2014
Date of pronouncement of judgment : 02.01.2014
S.C. No. 30/10 State vs. Vikrant @ Vicky & Ors. Page Nos. 1 of 26
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JUDGMENT:
1 Briefly stated the case of the prosecution is that on 09.11.2009, at about 9.40 pm, one information was received at PS Model Town regarding driver having been shot at A1, CC colony, RP Bagh. The said information was reduced to writing vide DD no. 8A and was marked to Insp. Jeevat Ram, who proceeded to the place of incident and on reaching there, he came to know that the injured had been taken to the hospital. He left Ct. Ram Kumar for the safe custody of the spot and went to the Hindu Rao Hospital, where ASI Suresh Chand met him and handed him over the MLC of injured Keshav Kumar, whereupon the concerned doctor had opined the patient to be unfit for statement. The Insp. Jeevat Ram returned back to the spot. He inspected the site and found a lot of blood lying at the spot. He also found empty cartridges lying there. He further met Sh. Vikas Jain at the spot, who gave his statement, wherein he stated that he was working as an accountant in Satya Parkash and Brothers Pvt. Ltd., A1, CC Colony, Rana Pratap Bagh. On 09.11.2009, at about 9.30 pm, he was present in the office and at that time, his employer Sh. Satya Parkash Gupta and his sons Rajiv Gupta and Ghanshyam Gupta also reached there in their Pizora Car bearing no. DL8CL6008 driven by driver Keshav Kumar. After Sh. Satya Parkash Gupta, Rajiv Gupta and Ghanshyam Gupta entered the office, complainant Vikas Jain went out of it, for Pooja, in nearby temple and as he was coming out of the main gate of office, he saw two boys, aged about 20/23 years, fire upon the driver Keshav, while he was removing the briefcase belonging to Ghanshyam, younger son of Sh. Satya Parkash, S.C. No. 30/10 State vs. Vikrant @ Vicky & Ors. Page Nos. 2 of 26 3 from car. As the driver fell down, his assailants snatched the briefcase from his hand and escaped from the spot with two other boys, who were standing nearby with their motorcycles and escaped towards service road, CC Colony. The complainant further stated that according to Sh. Ghanshyam, his brief case, was containing Rs. 6 lacs cash, one mobile phone make Samsung with SIM No. 9911021648, one cheque book of Indian Bank, Pratap Bagh Branch and some other documents. He further stated that he along with the other driver picked up injured Keshav Kumar and put him in the car and in the meantime, Sh. Satya Parkash and his sons also came out of the office and complainant informed them about the events that had taken place and thereafter, they took injured Keshav Kumar to Hindu Rao Hospital. The complainant stated that he could identify the assailants. On the basis of this complaint, case FIR 366/09 U/s 307/392/394/397/34 IPC & 25/54/59 Arms Act was registered against the accused persons. 2 During the course of the investigations, IO got the spot of incident inspected through crime team and also got its photographs taken. He further lifted blood control sample, earth control sample from the spot and seized the same along with the empty cartridges lying at the spot.
3 On 24.11.2009, the further investigation of the case was transferred to Operation Cell, by the order of DCP, North West and were carried out by SI Balbir Singh at the operation cell.
S.C. No. 30/10 State vs. Vikrant @ Vicky & Ors. Page Nos. 3 of 26
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4 On 27.11.2009, accused Sandeep @ Sonu was arrested in the present case.
Further on 02.12.2009, accused Vikrant @ Vicky and accused Arun Kumar Jha were arrested in case FIR no. 586/09 u/s 307/393/394/398/34 IPC and 25/27 Arms Act, registered at PS Saraswati Vihar, regarding which, information was given to the IO in the present case, who arrested both the accused in the instant case on 10.12.2009. As per the case of the prosecution, accused Vikrant @ Vicky got recovered motorcycle used in commission of offence in the present case, while accused Arun Kumar Jha got recovered the pistol from which shots were fired at the injured. Both of the said accused persons also made disclosure statements admitting their involvement in commission of offence in the present case. On 16.12.2009, accused Inder @ Munna was arrested in case FIR No. 31/09 u/s 25 Arms Act, registered at PS Bhalsawa Dairy and got recovered one country made pistol. He also disclosed that he had informed his accomplices that money was being transported in Pajero car from Cavlary Line, Mall Road to the office at CC Colony. 5 During the course of investigation, the IO moved an application for TIP of Arun Kumar Jha and Vikrant @ Vicky, however, both the accused refused to get their TIP conducted.
6 The accused Sandeep @ Sonu, who had been arrested on 27.11.2009 in the present case, was got discharged by the IO as according to him no sufficient evidence S.C. No. 30/10 State vs. Vikrant @ Vicky & Ors. Page Nos. 4 of 26 5 could be brought on record against him and two other accused namely Rahul and Rajesh were never arrested for want of sufficient particulars.
7 During the course of investigations, IO of the case sent the exhibits of the present case to FSL. After completing the investigations, charge sheet was prepared and filed in the court through SHO concerned.
8 After committal, arguments on the point of charge were heard and on the basis of the material on record, the charge for committing the offences punishable u/s 392/394/34 IPC were framed against all the accused persons namely Vikrant @ Vicky, Arun Kumar Jha and Inder @ Munna. Further charge under Section 397 IPC was also framed against the accused Arun Kumar Jha by the Ld. Predecessor of this Court. Accused persons pleaded not guilty to the charges framed against them and claimed trial. 9 The prosecution in order to prove its case examined 25 witnesses 10 The PW1 Keshav is the injured in the present case. He deposed as per the prosecution case and also stated that he had received five gun shot injuries on his left arm and four gun shots injuries on his abdomen, however, he stated that after receiving the said injuries, he became unconscious and that he could not identify the person, who had fired upon him and had taken away the brief case, which he had taken out from S.C. No. 30/10 State vs. Vikrant @ Vicky & Ors. Page Nos. 5 of 26 6 the dicky of the car. This witness was declared hostile by ld. Addl. PP and was cross examined at length, wherein his statement u/s 161 Cr.P.C mark X was put to him, however, he denied having stated in mark X that on the day of incident, he had seen a person firing at him and another person sitting on the motorcycle. He also denied that portion of his statement u/s 161 Cr.P.C i.e. mark Y, wherein he is stated to have come to Rohini Courts on 10.01.2010 and identified accused Vikrant @ Vicky and Arun Kumar Jha as the persons, who had robbed from him brief case containing Rs. Six lacs, one mobile phone and some documents after firing upon him.
11 The PW2 Sh. Vikas Jain is the complainant in the present case. Although, he deposed as per his complaint Ex. PW2/A, he stated that he could not identify the accused persons, who had come there on two motorcycles and robbed driver Keshav of brief case containing money. He went on to state that the accused persons were all in muffled face and were also wearing helmets at the time of incident and hence, he could not identify them. This witness was also declared hostile by ld. Addl. PP. During his crossexamination by ld. Addl.PP, the PW2 denied having stated in his complaint Ex. PW2/A that he could identify the accused persons. He denied that the accused persons were neither in muffled face, nor were they wearing helmets at the time of incident. He also denied that he could identify both the accused persons. During his further cross examination, PW2 denied that he had been called to Rohini Jail on 12.01.2010 by SI Balbir Singh to identify the accused persons or that accused persons refused to S.C. No. 30/10 State vs. Vikrant @ Vicky & Ors. Page Nos. 6 of 26 7 participate in the judicial TIP on the said date or that he had seen the accused persons at Rohini Court on 10.03.2013 or that he had so stated in his supplementary statements mark A and mark B. 12 The PW6 Chaudhary Mandal, a dhaba owner, has been put forth as an eye witness to the incident. This witness failed to support the prosecution case and stated that he did not know anything about the present case.
13 During his crossexamination by ld. Addl. PP, the PW6 termed it correct that persons visited his dhaba for meatroti and that on 14.12.2009, police officials took accused Vikrant and Arun and that he identified them as they used to visit dhaba of PW6 to have meat etc. He however, denied having told the police that accused Vikrant and Arun used to come to his Dhaba along with Munna, Rakesh and Rahul. He immediately thereafter, termed it correct that accused Vikrant and Arun had come to his Dhaba with their associates Munna, Rakesh and Rahul on 09.11.2009 at about 10.00/10.30 am and that at that time, they were having one brief case in their hand, which was broken by them and that the said brief case was containing a huge amount of cash and documents and that they distributed the cash amongst themselves and thereafter, they broke the said brief case. The PW6 also termed it correct that he had been threatened by the accused persons not to disclose about this fact to any one. He further termed it correct that on 10.03.2010, he had come to Rohini Court and had identified accused Vikrant @ Vicky, Arun and Inder @ S.C. No. 30/10 State vs. Vikrant @ Vicky & Ors. Page Nos. 7 of 26 8 Munna as persons, who had broken the brief case in his dhaba and threatened him not to disclose about the same to any one.
14 During his crossexamination by ld. Amicus Curie, the witness changed his version. He stated that he was illiterate and that he could not state, if police had recorded his statement. He also stated that he had seen the brief case burning at a distance of 8/10 steps from his shop and that he had not seen accused persons while breaking the said briefcase and that he had seen it burning, when he came back with water. He further stated that five/six police officials had come to his dhaba in two cars and that they had brought one person in handcuff to his dhaba, who perhaps was accused Inder @ Munna. He also stated that the police officials took him (PW6) with them in the car and also gave beatings to him and that he had not stated anything about the robbery in his statement to the police and did not know anything about the robbery committed by the accused persons.
15 The PW6 was reexamined by ld. Addl. PP to clarify regarding breaking open the brief case by the accused persons. During the said reexamination, PW6 stated that he had only seen the brief case, while it was burning and had not seen the accused persons breaking the same and that he had so stated in his examination in chief, as he could not properly understand the questions put to him in this regard. The PW6 also denied that accused Arun and Vikrant had been brought to his dhaba on S.C. No. 30/10 State vs. Vikrant @ Vicky & Ors. Page Nos. 8 of 26 9 14.12.2009 by the police and stated that he had so stated in his examinationinchief inadvertently as he could not understand the questions put to him. 16 The PW5 Kamal, who was working as a driver in Satya Prakash Pvt. Ltd., deposed that on 09.11.2009, at about 9.00/9.15 am, he brought Swift car to the office and went inside the office to keep lunch box of Sh. S.K. Jain (Engineer) and that on hearing noise of firing, he as well as other employees rushed outside and found Keshav, driver of Sh. Satya Prakash, lying on the ground in an injured condition. The PW5 took injured to Hindu Rao Hospital at the instance of Sh. Rajeev Gupta and at that time one Abhishek also accompanied him. He further stated that he came to know later on that the persons who had shot Keshav had also robbed the briefcase of Sh. Ghanshyam Gupta, younger son of Sh. Satya Prakash, containing Rs.6 lacs, mobile phone and some documents. 17 The PW8, Sh. Satya Prakash Gupta, is the owner of Satya Prakash Private Limited as well as employee of injured Keshav. He had reached the place where injured Keshav was shot at on hearing noise of firing of bullet and deposed regarding the same. 18 The PW9, Sh. Ghanshyam, is the son of PW8 Sh. Satya Prakash Gupta, and PW10 Sh. Abhishek Shukla, is computer operator working at A1, CC Colony, Opposite Rana Pratap Bagh. They both had reached the place where injured Keshav had been shot after hearing noise of firing and deposed on lines of PW8 Sh. Satya Prakash S.C. No. 30/10 State vs. Vikrant @ Vicky & Ors. Page Nos. 9 of 26 10 Gupta regarding the same.
19 The PW4, Dr. Neeraj Verma, was deputed in place of Dr. Rachna, who had examined injured Keshav at Hindu Rao Hospital and proved the MLC of injured as Ex.PW4/A by identifying handwriting and signatures of Dr. Rachna thereupon. 20 The PW13, W/ASI Geeta Rani, was posted at PS Model Town as DO at the relevant time and had recorded relevant information regarding the present case during the course of her duties. She deposed that on 09.11.2009 at about 9:45 AM, wireless operator gave her information through intercom that he had received a PCR call from A1, CC Colony, RP Bagh, that 'Mere Driver Ko Goli Mar Di' and that PW13 reduced the said information into writing vide DD No.8A and she proved copy thereof as Ex.PW13/A. The PW13 further deposed that on the same day at about 9:50 AM, Inspr. Jeevat Ram left the PS for patrolling vide DD No.9A and proved the copy of said DD as Ex.PW13/B. She then deposed that at about 12:05 PM, she received rukka through Ct. Ram Kumar, sent by Insp. Jeevat Ram Parmar, and that after receiving the same, she made endorsement Ex. PW13/C on it and also recorded DD No. 10A (Kayami) i.e. Ex. PW13/D and thereafter she got recorded case FIR No.366/09 u/s 307/392/394/397/34 IPC through computer operator and handed over computerized copy of FIR and rukka in original to Ct. Ram Kumar. She proved the computerized copy of FIR as Ex. PW13/E. S.C. No. 30/10 State vs. Vikrant @ Vicky & Ors. Page Nos. 10 of 26 11 21 The PW14, ASI Suresh Chand, had gone along with Ct. Ram Kumar to the place of incident i.e. A1, CC Colony, R.P. Bagh, on receipt of DD No.8A i.e. Ex.PW13/A. He deposed that on reaching the spot, they came to know that the injured had already been removed to H.R. Hospital. They also found one blood stained Pijaro car, and blood scattered at the spot. Five empty shells of bullets were also lying there. The PW14 left Ct. Ram Kumar at the spot and went to HR hospital and obtained the MLC Ex.PW4/A of injuredKeshav Kumar on which doctor opined patient to be unfit for statement. In the meanwhile Insp. J.R. Parmar reached hospital and PW14 handed over the MLC of injured to him. Thereafter, Insp. J.R. Parmar left the hospital for the spot while PW14 remained there. After some time the concerned doctor handed over one pullanda containing clothes of injured alongwith sample seal of the hospital to PW14, who took them with him to the spot and handed over the said pullanda to Insp. J.R. Parmar who took the same into possession vide seizure memo Ex. PW12/E. The PW14 further deposed about investigations carried out by Inspr. J.R. Parmar at the spot. He proved his signatures on Ex. PW12/A i.e. seizure memo of blood sample, Ex. PW12/B i.e. seizure memo of earth control, Ex. PW14/A i.e. seizure memo of earth control, Ex. PW12/C i.e. seizure memo of bloodstained paint scrapped from the Pajero car, Ex. PW14/B i.e. seizure memo of paint scrapped from Pajero Car, and Ex. PW12/D i.e. seizure memo of empty shells lifted from the spot. He also identified the empty shells bearing No. EC3, EC4, EC5, EC1 and EC2 as Ex.P1 to Ex.P5 respectively.
S.C. No. 30/10 State vs. Vikrant @ Vicky & Ors. Page Nos. 11 of 26 12 22 The PW12, Ct. Ram Kumar, had accompanied PW14 ASI Suresh Chand and deposed on the lines of PW14. He also deposed about taking rukka to PS and getting case FIR registered at the instance of Inspr. J.R. Parmar. He identified his signatures on various memos and further identified the case property i.e. empty shells Ex.P1 to Ex.P5. 23 The PW25, Inspr. Jivat Ram Parmar, is the main investigating officer of the case. He deposed about taking over the investigations of the case on receipt of DD No.8A i.e. Ex.PW13/A. He further deposed about going to Hindu Rao hospital, meeting ASI Suresh Kumar and taking the MLC of injured Keshav Kumar from him. He then deposed about returning back to spot, recording of statement of complainant Vikas Jain, making endorsement Ex.PW25/A thereupon and getting the case FIR registered through Ct. Ram Kumar. He further deposed about investigations carried out by him at the spot and proved the site plan as Ex.PW25/B. He also deposed about various memos about which PW14 SI Suresh Chand had already deposed earlier.
24 The PW25 then deposed that on 10.11.2009 he received information from Sant Parmanand Hospital that injured of the present case had been shifted there and had been operated upon and one bullet led had been recovered from his body during surgery and that he (PW25) deputed SI Inder Pal Singh to collect the said recovered bullet and later on on being handed over sealed pullanda, sealed with the seal of SRH and sample seal, by SI Inder Pal Singh, he seized the same vide S.C. No. 30/10 State vs. Vikrant @ Vicky & Ors. Page Nos. 12 of 26 13 memo Ex.PW12/F. The PW25 then deposed about recording statement of injured Keshav Kumar at Sant Parmanand Hospital on 12.11.2009, after taking fitness of the injured to make the same, vide application Ex.PW25/C. 25 The PW25 further deposed that he again received investigations of the case on 08.03.2010 as during the intervening period the case was transferred to Special Staff North West District by the order of DCP and that during the course of further investigations, he recorded statements of witnesses as well as supplementary statement of injured Keshav Kumar and filed the charge sheet on 10.03.2010. He also deposed that he got sent the exhibits of the present case to FSL on 30.03.2010, as the investigations were not with him during the intervening period, and that he collected FSL result Ex.PX, obtained sanction u/s.39 of Arms Act Ex.PW25/D against accused Arun Kumar Jha and further collected PCR form Ex.PW25/E. The PW25 identified the case property i.e. empty cartridges Ex.P1 to Ex.P5.
26 The PW21, SI Inder Pal Singh, had collected a sealed pullanda and sample seal from Sant Parmanand Hospital on 10.11.2009 and handed over the same to PW25 Inspr. J.R. Parmar vide memo Ex.PW12/F and deposed regarding the same. 27 The PW15, SI Mahesh Chander, was posted as I/c Mobile Crime Team (NW) at the relevant time and he deposed about visiting the spot along with PW18 Ct. Dalbir S.C. No. 30/10 State vs. Vikrant @ Vicky & Ors. Page Nos. 13 of 26 14 Singh, photographer of the Mobile Crime Team and PW19 ASI Sushil Kumar, Finger Print Expert of the Mobile Crime Team on 09.11.2009. He proved his detailed report as Ex. PW15/A. The photographs taken by PW18 Ct. Dalbir Singh were proved by him as Ex.PW18/A1 to Ex.PW18/A16 and the CD was proved as Ex.PW18/B. The PW19 ASI Sushil Kumar proved his report as Ex.PW19/A and stated that on examination of Pizero car, he was able to develop two chance prints and that after preparing his report Ex.PW19/A, he had sent carbon copy thereof to Finger Print Bureau for IO to take further action by sending specimen signatures to the Bureau for comparison. He also proved the reminder letter received from Finger Print Bureau, in his (PW19's) office as Ex.PW19/B and stated that he was not aware if the IO of the present case had sent any specimen finger prints of the accused to the Finger Print Bureau in compliance of their reminder. 28 The PW22, SI Balbir Singh, was posted at Special Staff North West District and had carried out investigations of the case after transfer of the case to Special Staff. He deposed that on 27.11.2009, accused Sandeep was produced at Rohini Court and was arrested by him vide arrest memo Ex.PW22/A. He further deposed about arrest of accused Vikrant @ Vicky and Arun Kumar Jha on 10.12.2009, on their production before the concerned Court, vide memo Ex.PW22/B (of accused Vikrant @ Vicky) and Ex.PW22/C (of accused Arun Kumar). He further deposed that on 12.12.2009 he obtained PC remand of accused Vikrant and Arun Kumar Jha and that during the course of investigations, both the accused pointed out place of occurrence to him vide memo S.C. No. 30/10 State vs. Vikrant @ Vicky & Ors. Page Nos. 14 of 26 15 Ex.PW22/D and made disclosure statement Ex.PW22/E (of accused Vikrant) and Ex.PW22/F (of accused Arun Kumar Jha). He then deposed that on 15.12.2009 he brought back both the accused from PC remand and also moved an application for TIP of the accused persons which was fixed for 17.12.2009 but both the accused persons refused for their TIP. The PW22 then deposed about the arrest of accused Inder on 16.12.2009, when he was produced before the concerned Court, vide arrest memo Ex.PW22/G. Though the witness stated that he had obtained PC remand of accused Inder and had prepared pointing out memo of the place of occurrence at his instance, he could not point out any such document (s) from the judicial file. He proved the disclosure statement of accused Inder as Ex.PW22/H. The PW22 then deposed that on 17.12.2009 he brought back accused Inder from PC remand and also moved an application for his TIP but accused Inder also refused for his TIP. The PW22 lastly deposed that he got the accused Sandeep discharged in the present case as he was not involved in the commission of offence.
29 During his crossexamination, PW22 termed it correct that on 27.11.2009 he had applied for three days PC remand of accused Sandeep which was allowed vide order Ex.PW22/DA and that in the said application he had mentioned names of accused Pritam, Lucky Sardar and Rakesh Pandit. The PW22 further termed it correct that he had not moved any formal application for TIP of accused Inder nor had he placed any such application with charge sheet. He volunteered to state that S.C. No. 30/10 State vs. Vikrant @ Vicky & Ors. Page Nos. 15 of 26 16 accused was verbally asked in the Court whether he wanted to join the TIP but he refused. He termed it correct that no such order in this regard was passed by the court. The PW22 denied that on 14.12.2009 he had taken accused Vikrant @ Vicky and Arun Kumar Jha to Chaudhary Hotel in unmuffled face and showed them to witnesses or that due to this reason the said accused persons had refused for their TIP.
30 The PW23, SI Rajeshwar, had arrested accused Inder on 03.12.2009 while coming from the side Shamshan Ghat, Bhalswa Ground and recovered one country made pistol and two live cartridges from his person and deposed regarding the same. He also deposed that he had got case FIR No.31/09 registered at PS Bhalswa Dairy pursuant to recovery of said articles from accused Inder and proved various documents prepared by him during the course of investigations of the said case.
31 The PW7, HC Joseph David, had registered case FIR No.31/09 u/s. 25 Arms Act at PS Bhalswa Dairy and deposed regarding the same.
32 The PW20, SI Ranbir Singh, had carried out investigations of the case after registration of case FIR No.586/09 u/s. 307/393/396/398/34 IPC and u/s.25/27 Arms Act against accused Vikrant @ Vicky and Arun Kumar Jha and deposed regarding the same. He proved various documents prepared by him during the course of investigations of the said case. He also stated that he had been told by HC Virender that accused Arun Kumar S.C. No. 30/10 State vs. Vikrant @ Vicky & Ors. Page Nos. 16 of 26 17 Jha and his coassociate namely Vicky had come on a Pulsar Motorcycle and fired three shots on a person, who was an Accent Car and that one of the accused was hit by one other motorcyclist due to which he fell down and was overpowered by HC Virender and other staff and that one pistol and magazine had been recovered from him. 33 The PW24, Inspr. Satish Kumar, had conducted further investigations of the case FIR No.586/09 on 02.12.2009 and deposed that during the course of said investigations, he conducted raid at the house of accused Vikrant @ Vicky at A623624, Jahangir Puri, and recovered one Bajaj Pulsar motorcycle bearing registration No. DL 4S BN 7270, from gali of his house, which was stated to have been used in commission of the offence in case FIR No.586/09. He also deposed about recovery of one Maruti car at the instance of accused Arun Kumar Jha.
34 The PW11, ASI Hans Raj, had recorded case FIR No.586/09 u/s. 307/393/396/398/34 IPC and u/s.25/27 Arms Act against accused Vikrant @ Vicky and Arun Kumar Jha at PS Saraswati Vihar and deposed regarding the same. 35 The PW17, HC Sarita, had recorded case FIR No. 184/09 u/s.25 Arms Act at PS Lodhi Colony on 13.11.2009 and deposed regarding the same.
36 The PW3, SI V.D. Pandey, had taken JC remand of accused persons in the S.C. No. 30/10 State vs. Vikrant @ Vicky & Ors. Page Nos. 17 of 26 18 present case on 08.03.2010, on directions of SHO, as IO was on leave and deposed regarding the same.
37 The PW16, HC Pratap Singh, was posted as MHCM at PS Model Town at the relevant time. He proved the original register No.19 and proved the relevant entries of deposit of parcels and sending them to FSL as Ex.PW16/A to Ex.PW16/J. 38 After closing of prosecution evidence, statements of all three accused persons Vikrant @ Vicky, Inder @ Munna and Arun Kumar Jha were recorded u/s 313 Cr.P.C, wherein they denied the allegations of the prosecution and stated that they were innocent and had been falsely implicated in this case by the police. They further stated that they were lifted from their respective houses by the police and were confined in the PS, where their signatures were obtained on various papers and performas and later on same were converted into memos and various unsolved cases were planted upon them. They further stated that in fact some persons namely Sandeep, Pritam, Lucky Sardar and Rakesh Pandit were named in the present case but they were set free illegally and instead accused persons were falsely implicated in the present case. The accused persons did not lead any evidence in their defence.
39 Arguments have been addressed by learned defence counsel for the accused persons as well as learned Additional PP for the State.
S.C. No. 30/10 State vs. Vikrant @ Vicky & Ors. Page Nos. 18 of 26 19 40 Learned Additional PP has contended that in view of the testimony of witnesses examined by it, prosecution has succeeded in proving its case against the accused persons beyond reasonable doubt and has prayed that they be convicted for the charged offences.
41 On the other hand learned defence counsel has contended that prosecution case is full of lacunas and cannot be believed more particularly since none of the public witnesses including the injured have supported the case of the prosecution. As regards PW6 Chaudhary Mandal, it is contended that it is clearly brought out from the testimony of the said witness that he was given beatings by the police to depose in favour of the police case. It is also contended that the MLC of the injured does not stand proved as the concerned doctor, who examined the injured at Hindu Rao Hospital could not be produced before the Court and even otherwise none of the doctors from Sant Parmanand Hospital, where the injured was operated and bullet, was alleged to have been removed from his body, have been examined and that it does not stand proved that the bullet recovered from the body of the injured had been fired from pistol alleged to have been recovered from possession of accused Arun Kumar Jha. The fact that the case property was sent belatedly to FSL has also been taken as one of the ground to plead for acquittal of the accused persons. It is lastly contended that the actual culprits in the case were allowed to go scot free by the IO and instead the accused persons have been falsely implicated in the S.C. No. 30/10 State vs. Vikrant @ Vicky & Ors. Page Nos. 19 of 26 20 case and it is prayed that the accused persons be acquitted of the charged offence. 42 I have carefully considered the submissions made by Ld. Addl. PP for State and Ld. Defence counsel for the accused persons and have carefully gone through the record of the case. I have also perused the evidence, adduced on behalf of the prosecution in support of its case.
43 In the present case all the three accused persons namely Vikrant @ Vicky, Arun Kumar Jha and Inder @ Munna are alleged to have acted in furtherance of their common intention with their coaccused Rajesh and Rahul (since not arrested) and robbed Keshav Kumar of a briefcase / attachi containing Rs.6 lacs in cash, one mobile phone Samsung, one cheque book of Indian Bank and other documents. Further the accused persons, along with their coaccused Rajesh and Rahul (since not arrested) are stated to have voluntarily caused hurt to said Keshav Kumar by firing at him with pistol at the time of commission of the robbery and accused Arun Kumar Jha is stated to have used weapon i.e. a pistol in commission of the said robbery.
44 The case was registered against unknown assailants on statement Ex.PW2/A made by Sh. Vikas Jain, who had given details about the manner in which two assailants came and fired at Keshav Kumar, driver of his employer Satya Prakash Gupta and his sons Rajiv Gupta and Ghanshyam Gupta, and decamped with briefcase which S.C. No. 30/10 State vs. Vikrant @ Vicky & Ors. Page Nos. 20 of 26 21 Keshav Kumar was removing from their Pajero Car bearing NO. DL 8C L 6008. The PW2 Sh. Vikas Jain is also stated to have mentioned about presence of two other assailants, on separate motorcycles, on which the two persons who had shot at Keshav Kumar and robbed him of briefcase, had escaped from the spot. In fact the PW2 is apparently the only independent witness put forth by the prosecution who could have identified the alleged assailants / robbers. Sh. Vikas Jain was examined as PW2 before the Court and though he deposed according to the prosecution case as regards the incident, he stated that he was unable to identify any of the accused persons as the assailants were in muffled face and were also wearing helmets at the time of incident. He further denied that he had been called to Rohini Jail by the IO SI Balbir Singh on 12.01.2010 to identify the accused persons or that on reaching there he was told that accused persons had refused to participate in TIP. He further denied that he had identified accused Vikrant @ Vicky and Arun Kumar Jha at Rohini Court on 10.03.2010 or had made statement to the IO regarding the same. Both the accused Vikrant @ Vicky and Arun Kumar Jha were pointed out to the witness in the Court but he failed to identify them.
45 The injured Keshav Kumar was examined as PW1 and he too stated that he was unable to identify any of the persons who had fired upon him. He also denied having come to Rohini Court on 10.01.2010 and identified Vikrant @ Vicky and Arun Kumar Jha in the court on that day. Moreover as per case of the prosecution the injured Keshav Kumar was initially taken to Hindu Rao Hospital and was subsequently shifted to Sant Parmanand S.C. No. 30/10 State vs. Vikrant @ Vicky & Ors. Page Nos. 21 of 26 22 Hospital where he was operated upon and a bullet is stated to have been removed from his body which was kept in a sealed parcel and handed over to PW21 SI Inder Pal Singh. No MLC or medical documents of treatment of injured Keshav Kumar at Sant Parmanand Hospital have been placed on record and none of the doctors from said hospital have been cited as witness in the list of witnesses filed by the IO and thus it cannot be concluded that the bullet received by PW21 SI Inder Pal Singh vide memo Ex.PW12/F is the same bullet which was removed from the body of injured Keshav Kumar by Dr. Sushil of Sant Parmanand Hospital, who operated upon him. In these circumstances the delay in sending the case property to FSL also becomes very material. Admittedly the incident in the present case is stated to have taken place on 09.11.2009 and the bullet in question is alleged to have been removed from the body of injured Keshav Kumar on 10.11.2009 and handed over to PW21 SI Inder Pal Singh. The case property in the present case, however, was sent to FSL only on 30.03.2010 much belatedly and that too after filing of the charge sheet. Thus a considerable doubt is cast regarding the recovery of the bullet from the body of injured Keshav Kumar and possibility of tampering with the case property cannot be ruled out specially when the bullet in question has not been identified by the doctor, who is stated to have removed it from the body of the injured and the FSL result also does not find mention of the initials of the seal, with which parcel containing said bullet, was sealed with. 46 Further though the robbed briefcase is stated to have contained Rs.6 lacs in cash, one mobile phone Samsung, one cheque book of Indian Bank and other documents, S.C. No. 30/10 State vs. Vikrant @ Vicky & Ors. Page Nos. 22 of 26 23 no documentary proof thereof has been placed on record for the Court to draw conclusion that the robbed briefcase in fact contained said cash and articles. This is another lacuna in the prosecution case. Moreover as per prosecution case PW6 Chaudhary Mandal is stated to have seen accused Vikrant and Arun, who used to visit his dhaba along with Munna, Rakesh and Rahul, come there on 09.11.2009 at about 10:00 - 10:30 AM with one briefcase in their hand which was broken by them and was seen containing huge amount of cash and other documents which they distributed among themselves and thereafter they set briefcase on fire. The briefcase in question, was thus apparently traceable in mutilated condition but was never seized by the IO. Even otherwise during his crossexamination by learned defence counsel, PW6 stated that he had not seen accused persons breaking the briefcase and had only seen it burning. He also stated that 5 - 6 police officials had come to him in two cars and that at that time they had brought one person in handcuff, who was tentatively identified by witness to be accused Inder @ Munna and that the said police officials remained at Dhaba of PW6 for about five minutes and while leaving they took PW6 with them and gave beatings to him. He categorically stated that none of the accused present in the Court (the accused present on the day witness appeared to depose in the Court) were accompanying them. He also stated that he had not stated anything about the robbery to the police and that he did not know anything about the robbery committed by the accused persons. He further denied having identified accused persons on 14.12.2009 at his Dhaba or at Rohini Courts on 10.03.2010. Though the witness was reexamined by the learned Additional PP, nothing which could be of any aid to the S.C. No. 30/10 State vs. Vikrant @ Vicky & Ors. Page Nos. 23 of 26 24 prosecution could be brought out from the said examination.
47 Coming to the recovery of country made pistol from possession of accused Arun Kumar Jha, the said pistol was not shown to the injured / PW1 Keshav Kumar or eye witness / PW2 Vikas Jain to ascertain its identity. As already observed hereinabove the bullet alleged to have been recovered from the body of injured Keshav Kumar could not be so proved to have been recovered from his body. In these circumstances, mere recovery of pistol from accused Arun Kumar Jha, effected in case FIR No.586/09 registered at PS Saraswati Vihar, vide seizure memo Ex.PW24/Z, does not enable the Court to draw a conclusion that accused Arun Kumar Jha had fired at injured Keshav Kumar on the fateful day. Similarly, recovery of the motorcycle, alleged to have been used in the incident, at instance of accused Vikrant @ Vicky does not prove his culpability. Learned Additional PP has contended that the findings in FSL result that the cartridge shells Ex.P1 to Ex.P5 seized from the place of occurrence were bearing individual characterstics of firing pin marks and breech face marks present on test cartridge case points out that accused Arun Kumar Jha had fired at injured Keshav Kumar. This contention cannot be sustained for reasons firstly that the pistol in question has not been identified either by the eye witness or the injured and secondly as already observed hereinabove that there has been inordinate delay in sending the case property to FSL and that too after considerable lapes of time after the arrest of accused Arun Kumar Jha and thus the possibility of tampering with the case property cannot be ruled out.
S.C. No. 30/10 State vs. Vikrant @ Vicky & Ors. Page Nos. 24 of 26 25 48 Moreover learned counsel for accused persons has rightly pointed out that the investigating officers in the present case were apparently groping around in the dark. The PW22 SI Balbir Singh first sought production of accused Sandeep @ Sonu, who had been arrested in case FIR No.184/09 registered at PS Lodhi Colony, and arrested him and took his PC remand inter alia on the ground that his coaccused Pritam, Lucky Sardar and Rakesh Pandit were to be arrested and that robbed money was also to be recovered. The application filed by the IO was allowed by learned MM vide order dated 27.11.2009 i.e. Ex.PW22/DA. Later IO got said accused Sandeep @ Sonu discharged vide order dated 05.12.2009 (now marked as Ex.PX for easy reference) stating that real culprits namely Vicky and Arun had been arrested in case FIR No.586/09 registered at PS Saraswati Vihar. He did not even interrogate accused Mukesh whose production he had sought on said date. As regards accused Inder @ Munna, IO made no efforts to get his TIP conducted and though he claims that accused had pointed out the place of occurrence to him, he could not trace out any such document from the charge sheet filed in the Court. It thus appears that IO PW22 SI Balbir Singh deliberately created lacunas in the case which PW25 Inspr. Jivat Ram Parmar, made no efforts to fill up. Rather he proceeded to investigate the matter in a mechanical way without application of mind. 49 Thus, in view of the above discussion and observations and having regard to the fact and circumstances of the present case, I am of the considered opinion that the S.C. No. 30/10 State vs. Vikrant @ Vicky & Ors. Page Nos. 25 of 26 26 prosecution has failed to prove the guilt of the accused persons Vikrant @ Vicky, Arun Kumar Jha and Inder @ Munna on record, beyond the reasonable doubts. Accordingly, I acquit accused persons Vikrant @ Vicky, Arun Kumar Jha and Inder @ Munna of the charged offences, giving them the benefit of doubt.
File be consigned to Record Room.
(Announced in the open Court) (Illa Rawat)
(Today on 02.01.2014 ) Addl. Session Judge
(NorthWest)01
Rohini/Delhi
S.C. No. 30/10 State vs. Vikrant @ Vicky & Ors. Page Nos. 26 of 26
27
FIR No. 366/09
P.S. Model Town
02.01.2014
Present: Ld. Addl. PP for the State.
All three accused produced from JC with counsel Sh. Rajnish Kumar Antil, learned Amicus Curie.
Arguments heard.
judgment shall be passed during the course of the day.
ASJ/NW01
Rohini/Delhi
02.01.2014
At 3:30 PM
Present: Ld. Addl. PP for the State.
All three accused produced from JC with counsel Sh. Rajnish Kumar Antil, learned Amicus Curie.
Vide separate judgment, announced today in the open Court, accused Vikrant @ Vicky, Arun Kumar Jha and Inder @ Munna have been acquitted of the charged offence.
Accused persons are in custody, be released forthwith, if not wanted in any other case.
File be consigned to Record Room.
(Illa Rawat) Addl. Sessions Judge (NorthWest)01 Rohini/Delhi 02.01.2014 S.C. No. 30/10 State vs. Vikrant @ Vicky & Ors. Page Nos. 27 of 26