Delhi District Court
State vs . Mohd. Akram & Ors. on 5 May, 2022
1
IN THE COURT OF MS. KIRAN GUPTA: ADDITIONAL SESSIONS
JUDGE - 03 : NORTH WEST DISTRICT : ROHINI : DELHI
SC NO. 51916/16
FIR NO. 26/11
PS Ashok Vihar
u/S 302/396/412/120B IPC
r/w S. 25/27/59 Arms Act
State Vs. Mohd. Akram & ors.
CNR NO. DLNW01 -000211-2011
a) Session Case No. 51916/16
b) Date of Offence 29.01.2011
c) Accused 1. Mohd. Akram S/o Mohd. Sadiqa
R/o B-99, Mange Ram Park,
Pooth Kalan, Delhi
2. Mohd. Afsar S/o Mohd.
Akhtar
R/o B-177, Mange Ram Park,
Pooth Kalan, Delhi
3. Hari Singh S/o Ram Singh
R/o Village Mahuranipur
District, Mahuba, U.P.
4. Naushad S/o Mohd. Aziz
R/o Village Gutawali, PS
Dirari, M. Bad. U.P.
5. Umar Ali S/o Bhoora
Digitally
signed by
KIRAN
KIRAN GUPTA
GUPTA Date:
2022.05.05
State Vs. Mohd. Akram & Ors 15:31:42
+0530 Page 1 of 83
2
R/o Village Dakiajatt, PS
Dirari District, M. Bad, U.P.
6. Neeraj S/o Mange Ram
R/o H No. 202, Village Pitam
Pura, Delhi
7. Ranjeet @ Bihari S/o
Shamsher Singh
R/o Village Karondhi PS Maholi
District Sitapur, U.P.
d) Offence u/S 302/396/412/120B IPC
r/w S. 25/27/59 Arms Act.
e) Plea of accused Accused persons pleaded not guilty
f) Final order All the accused persons are acquitted
for all the offences.
g) Date of institution 10.06.2011
h) Date when judgment
was reserved 30.04.2022
i) Date of judgment 05.05.2022
JUDGMENT
1. The accused persons are facing trial for the offence u/S 302/396/412/120B IPC r/w S. 25/27/59 Arms Act.
Digitally signed by KIRAN KIRAN GUPTA GUPTA Date:
2022.05.05 15:31:56 +0530 State Vs. Mohd. Akram & Ors Page 2 of 83 3 BRIEF FACTS
2. The case of prosecution is that on 29.01.2011, all the accused persons in furtherance of criminal conspiracy to commit dacoity, entered in the factory no. A-104, WPIA, Second Floor, Ashok Vihar, Delhi, of the deceased Anil at around 7 pm. They all were armed with deadly weapons i.e. country made pistols and knives. While committing robbery in the factory, they committed murder of Anil, when he objected to them. They took the black colored bag belonging to the deceased and one packet of 100 notes from the drawer and left the spot. The FIR was initially lodged u/S 302/394/397/34 IPC against unknown persons.
2.1 During investigation, four persons were arrested by the Special Staff on 21.02.2011 as follows:
a) Mohd. Afsar vide DD no. 16A dated 21.02.2011 in FIR no. 48/11 u/S 25 Arms PS Maurya Enclave.
b) Umar Ali vide DD no. 5A dated 21.02.2011 in PS Maurya Enclave.
c) Hari Singh in FIR No. 49/11 u/S 25 Arms Act PS Maurya Enclave.
d) Naushad vide DD no. 4A dated 21.02.2011 PS Maurya Enclave.
Digitally signed by KIRAN KIRAN GUPTA State Vs. Mohd. Akram & Ors GUPTA Date:
2022.05.05 Page 3 of 8315:32:09 +0530 4 2.2 All these four persons disclosed their involvement in the present FIR No. 26/11. They were accordingly formally arrested in the present FIR on 24.02.2011 after obtaining necessary permission from the court.
2.3 That Accused Mohd. Afsar was taken on four days PC remand. During PC remand, he got recovered black raxine bag kept below the mattress of the bed on the ground floor of his house no. B-177, Mange Ram Park, Pooth Kalan. He disclosed that the bag contained Rs. 40,000/- cash and some documents. He had thrown the documents in the pit at Pooth Kalan. The rexine bag recovered at the instance of accused was checked and it found containing one passport size photograph. Then he took the police officials to the pit Pooth Kalan, where near the wall, he got recovered the documents which he had thrown after taking them from the said black bag. He got recovered two cheque books, receipts, photocopy of death certificate of Pradeep Kumar, Election ID of Anil Kumar, one ICICI Lombard Card in the name of Anil Kumar, attendance card of various persons, two Bills of Reliance Communication in the name of Anil Kumar, One receipt of Saroj Hospital and Heart Institute in the name of Sant Kumar and one Neelgagan Notebook containing the account details.
Digitally signed by KIRAN KIRAN GUPTA Date:
GUPTA 2022.05.05 15:32:19 +0530 State Vs. Mohd. Akram & Ors Page 4 of 83 5 2.4 All these four accused persons refused for TIP proceedings. The IO during investigation came to know the names of other accused persons who were involved in the present case namely Ranjeet @ Bihari, Neeraj and Mohd. Akram Karim.
They all were absconding. On 21.02.2011, with the help of Special Staff, accused Mohd. Akram was arrested and interrogated. He disclosed his involvement in the present offence. He further disclosed that the bag which they had looted on the date of incident contained Rs. 40,000/- cash and some papers. He disclosed that co-accused Mohd. Afsar had distributed Rs.5,000/- each to all of them and kept Rs. 10,000/- for himself alongwith the bag. Out of his share of Rs. 5,000/-, he had spent Rs. 3,000/-. He disclosed that he had taken katta from co-accused Ranjeet and for that purpose he had saved Rs. 2,000/-. He got recovered Rs. 2,000/- from one iron box from the room of his house bearing no. B-99, Mange Ram Park, Pooth Kalan, Ground Floor. He further disclosed that Ranjeet had fired at the person on the date of incident. He was arrested and was sent to JC in muffled face.
2.5 During further investigation, it was found that accused Mohd. Afsar had done recee of WPIA. Then he told his associates Akram Karim, Hari Singh, Naushad, Umar Ali, Ranjeet @ Bihari and Neeraj that the owner of factor no. A-104, Second Floor, comes with a bag containing cash. Mohd. Afsar and his associates in a pre-planned manner assembled on Digitally signed by KIRAN KIRAN GUPTA State Vs. Mohd. Akram & Ors GUPTA Date:
2022.05.05 Page 5 of 8315:32:24 +0530 6 29.01.2011 at Pooth Kalan. Accused Mohd. Afsar, Neeraj and Ranjeet had come on separate motorcycles. Mohd. Afsar and Ranjeet were carrying two pistols each. Accused Neeraj and Umar Ali were carrying one knife each. Mohd. Afsar and Ranjeet gave one desi katta each to accused Hari Singh and Akram Karim. Accused Hari Singh accompanied Ranjeet on his bike;
Naushad on motorcycle of Mohd. Afsar; Akram Karim and Umar Ali on the motorcycle of Neeraj went to the place of incident. Mohd. Afsar gave his katta to Naushad. Mohd. Afsar after showing the factory to his associates, due to the fear of being identified as he is BC of the area, remained outside the factory. At the instance of Mohd. Afsar, accused Ranjeet, Naushad, Hari and Neeraj went to the stairs of factory while accused Akram and Umar Ali followed them. Hari slapped the guard sitting on the second floor of the gate of the factory. The guard Uma Shankar, started shouting and went towards the office. On hearing his noise, the owner Anil Kumar and his employee Naval Kishore came out of the office. Mohd. Akram and Neeraj beat the employee Naval Kishore. When Anil Kumar objected to the same, accused Ranjeet fired/shot at him. In the meantime, Ranjeet and Naushad took the bag from his office and ran away from the spot. Thereafter, they divided the looted amount and threw the documents found in the bag at Pooth Kalan pit.
Digitally
signed by
KIRAN KIRAN GUPTA
Date:
Digitally
GUPTA
signed by
KIRAN
KIRAN GUPTA
GUPTA Date:
2022.05.05
2022.05.05
15:32:32
+0530
15:39:15
+0530
State Vs. Mohd. Akram & Ors Page 6 of 83
7
2.6 The chargesheet was initially filed against accused
Mohd. Akram, Mohd. Afsar, Hari Singh and Umar Ali u/S 396/412 IPC and S. 25/27 Arms Act.
2.7 On 08.03.2011, NBWs were obtained against accused Ranjeet @ Bihari and Neeraj, however, they were absconding. During investigation, on 02.06.2011, information was received vide DD no. 17A at PS Ashok Vihar from PS North Rohini that accused Ranjeet and Neeraj who have been arrested in FIR No. 113/11 PS North Rohini have disclosed the commission of the offence in the present FIR No. 26/11 PS Ashok Vihar. Both these accused persons were arrested from Rohini Court on 04.06.2011 and were sent to jail in muffled face. Accused Neeraj refused for the TIP. Accused Ranjeet who was also accused in FIR No. 250/10 PS Rani Bagh absconded during police custody on 06.06.2011. Due to this reason, TIP of accused Ranjeet @ Bihari could not be done on 07.06.2011. He was subsequently arrested by the police officials of PS Rani Bagh and was re-arrested in the present case on 23.06.2011. During his TIP proceedings on 05.07.2011, he was not identified by any of the witnesses. He disclosed that the two motorcycles used at the time of offence are at Village Karaundi, District Sitapur, U.P. Both these motorcycles were seized by the police officials PS Mahauli, U.P. from his brothers Sunil and Suresh. He further disclosed that he had handed over one Katta to co-accused Akram and used the Digitally signed by KIRAN KIRAN GUPTA Date:
GUPTA Page 7 of 83 2022.05.05 State Vs. Mohd. Akram & Ors 15:39:20 +0530 8 another katta. After the incident, he gave one desi katta to Neeraj and other to his brother Sunil, which was recovered by the police officials of PS Mahauli U.P. 2.8 On 16.08.2011, the IO again obtained permission for interrogation of accused Naushad for recovery of the weapon of offence. The accused Naushad disclosed that he had thrown the said desi katta in Hindon river, Ghaziabad, U.P. During PC remand, accused Naushad pointed out the place of incident in the presence of Suresh Kumar and Sunil Kumar. The witnesses Indal and Naval Kishore disclosed to the IO on 07.07.2011 that when they went for TIP proceedings for Ranjeet on 05.07.2011 at Rohini Jail, they saw accused Mohd. Afsar. Due to fear, they did not identify Ranjeet. Naval Kishore stated that Ranjeet had fired at Anil. Even witness Indal stated that Ranjeet is the accused, whom he saw running on the date of incident and was carrying desi katta. The statement of both these witnesses were got recorded u/S 164 Cr.P.C. FSL report was obtained and supplementary chargesheet was filed against accused Neeraj and Ranjeet @ Bihari.
CHARGE
3. After hearing arguments on the point of charge and finding a prima facie case, charges were framed against the Digitally signed by KIRAN KIRAN GUPTA Date:
State Vs. Mohd. Akram & Ors GUPTA 2022.05.05 15:39:27 Page 8 of 83 +0530 9 accused persons initially on 30.08.2012 for the offence u/S 120B/396/412 IPC and in the alternative for the offence u/S 302/34 IPC. The charge for the offence u/S 25/27 Arms Act was framed against accused Hari Singh and Mohd. Afsar.
3.1. During pendency of the trial, amended charge for the offence u/S 120B/396 IPC, in the alternative for the offence u/S. 302/34 IPC was framed against all the accused persons.
Charges for the offence u/S. 412 IPC were framed against accused Mohd. Akram and Mohd. Afsar. Amended charge for the offence u/S. 25/27 Arms Act was framed against accused Ranjeet Bihari. All the accused persons pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE
4. The prosecution in order to prove its case has examined 45 witnesses.
POLICE WITNESSES A. PW1 Ct. Parvinder proved the 14 photographs alongwith the negatives of the place of incident taken on 29.01.2011 as Ex.PW1/A1 to Ex.PW1/A14 (negatives) and Ex.PW1/B1 to B14 (photographs).
Digitally signed by KIRAN KIRAN GUPTA Date:
GUPTA 2022.05.05 15:39:34 +0530 State Vs. Mohd. Akram & Ors Page 9 of 83 10 B. PW2 W/ASI Raj Devi deposed that on 29.11.2011, she was working as duty officer from 4 pm to 12 midnight. At about 8:55 pm, she received informatoin from PCR that one person namely Anil Thakur was brought dead to Shri Sunderlal Jain Hospital and had suffered gunshot injury. She recorded the DD No. 29 A Ex.PW2/C and sent the information to Addl. SHO. On the same day, at about 11:25 pm, PW14 Ct. Satender handed over the rukka to her, on the basis of which she registered the FIR Ex.PW2/A, made endorsement on rukka Ex.PW2/B. She also proved the DD No. 16A as Ex.PW2/D. C. PW5 Naveen Kumar deposed that on 29.01.2011, he handed over the copy of the FIR to Joint CP Northern Range, DCP North West, ACP Ashok Vihar and concerned MM Ashok Vihar.
D. PW6 W/Ct. Bhateri Devi. She was posted at PCR PHQ, Delhi on 29.01.2011. She proved the computerized copy of ACP, CPCR, PHQ, Ex.PW6/A with respect to the call received at 19:18:48 hrs from mobile number 9212247745 made by the caller Meghraj.
E. PW12 SI Devender Singh. He was the incharge, Crime Team, North West District. He proved the inspection report Ex.PW12/A. Digitally signed by KIRAN KIRAN GUPTA GUPTA Date:
2022.05.05 15:39:39 State Vs. Mohd. Akram & Ors +0530 Page 10 of 83 11 F. PW13 SI Sushil Kumar. He deposed that he was posted as finger print expert, Crime Team, North West, Delhi. On 29.01.2011 he alongwith the crime team, reached the spot, developed and lifted the chance prints which were found on the table top glass as Mark Q1 and Q2 which were sent to Delhi Finger Print Bureau for analysis and record.
On 17.08.2011, after being transferred to Delhi HQ Finger Print Bureau, one letter from SHO PS Ashok Vihar was received at the department, which was marked to him for comparison of chance prints alongwith the developed finger prints. He examined the same and found that the chance prints Q1 and Q2 are not identical with available portions of the finger prints of the person namely Neeraj and Ranjeet. He submitted the photocopy of his report, alongwith memorandum as Ex.PW13/A and Ex.PW13/B respectively.
G. PW14 Ct. Satender Kumar deposed that on 29.01.2011 he alongwith Inspector Vinod Kumar were on patrolling in the area. At about 7:30 pm, one information was received on wireless set regarding a gunshot fire. He alongwith Inspector Vinod Sharma, reached Sunder Lal Jain Hospital, where they met SI Ajay and PW32 Ct. Sandeep alongwith other staff of PS Ashok Vihar. SI Ajay handed over two MLCs to Digitally signed by KIRAN KIRAN GUPTA State Vs. Mohd. Akram & Ors GUPTA Date: Page 11 of 83 2022.05.05 15:39:45 +0530 12 Inspector Vinod Sharma. He alongwith SI Vijay and Inspector Vinod Kumar, went to the spot at factory no. A-104, second floor, WPIA, where Inspector Vinod Kumar Sharma recorded the statement of guard Uma Shankar and prepared the rukka and handed over the same to him for registration of the FIR. He after getting the FIR registered from duty officer came back to the spot and handed over original rukka and copy of FIR to Inspector Vinod. IO lifted the exhibits from the spot and sealed the same with seal AKM and after use of the seal, he handed over seal to him.
H. PW15 ASI Vinod Kumar, deposed that on 20.02.2011 he was posted with Special Staff North West District. On that day, in order to check crime in the area, SI Ajay Kumar alongwith the police staff was checking vehicles at AU Block, T Point, Outer Ring Road. During checking, SI Ajay Kumar apprehended Mohd. Afsar, from whose possession a country made pistol was recovered. On the basis of rukka of SI Ajay Kumar, FIR No. 48/11 PS Maurya Enclave was registered. It was entrusted to him for investigation. During investigation of said case, Mohd. Afsar gave disclosure statement Ex.PW15/A and disclosed about his involvement in the present case. Thereafter, he gave the information regarding apprehension of accused Mohd. Afsar and his involvement in the present case to the IO of this case and handed over the disclosure statement to him.
Digitally signed by KIRAN KIRAN GUPTA Date:
GUPTA 2022.05.05 State Vs. Mohd. Akram & Ors 15:40:06 +0530 Page 12 of 83 13 During cross examination, he deposed that the disclosure statement was recorded in 2-3 pages and he had obtained signatures of the accused only on the last page. He denied the suggestion that no such statement was given by Mohd. Afsar or that he had manipulated the same at the instance of IO.
I. PW16 HC Pritam Chand deposed that on 20.02.2011, he was posted with Special Staff, North West District. The investigation of FIR No. 49/11 was assigned to him.
On receipt of FIR, he proceeded to the spot i.e. T Point, AU Block, Pitam Pura, Delhi, where HC Sheshdhar produced accused Hari Singh before him and handed over sealed parcel. He arrested Hari Singh and conducted his personal search. He recorded his disclosure statement Mark 16/A and informed the IO of the present case.
He during his cross examination denied the suggestion that he obtained thumb impression of Hari Singh on various blank papers and subsequently manipulated the same as disclosure statement.
J. PW17 Inspector Manohar Lal deposed that on 05.04.2011, he was posted as SI Draftsman in North West District. On that day, he was called by the IO for drafting at PS Digitally signed by KIRAN KIRAN GUPTA Page 13 of 83 Date:
State Vs. Mohd. Akram & Ors GUPTA 2022.05.05 15:40:11 +0530 14 Ashok Vihar and from there he alongwith IO and Inspector Vinod Kumar reached the spot i.e. Factor A-104, Second Floor, WPIA, Ashok Vihar. On the direction of SHO and Inspector Vinod, he inspected the spot, took measurements and took the rough notes. On 06.04.2011, he prepared the scaled site plan Ex.PW17/A. After preparing the scaled plan, he destroyed the rough notes.
K. PW21 SI Haroon Ahmed, PW 38 Inspector Pratap Singh and PW41 HC Yogesh PW38 Inspector Pratap Singh deposed that he took this case for investigation on 22.02.2011. One of the accused namely Mohd. Akram Karim was already arrested and was kept in muffled face in PS. The other four accused namely Md. Afsar, Hari Singh, Naushad and Umar Ali were already sent to JC. On 24.02.2011, he alongwith PW21 SI Haroon Ahmed, SI Ajay, Ct. Ashok, PW41 HC Yogesh and Ct. Rajender went to Rohini Court in a Government Gypsy. Accused Mohd. Afsar, Naushad, Umar Ali and Hari Singh were produced in muffled face on production warrants. PW38/IO after obtaining permission from the court, interrogated these four accused persons one by one separately. They were formally arrested by him. PW38 recorded their disclosure statements and moved the application for PC remand of accused Mohd. Afsar. Remaining three accused persons were sent back to JC in muffled face.
Digitally
signed by
KIRAN
KIRAN GUPTA
GUPTA Date:
State Vs. Mohd. Akram & Ors 2022.05.05
15:40:19 Page 14 of 83
+0530
15
PW38 obtained four days PC remand of accused Mohd. Afsar. During PC remand, Mohd. Afsar took them to his house at B-177, Mange Ram Park, Pooth Kalan, Delhi. Accused Mohd. Afsar was muffled face at that time. He led them at the backside room at the ground floor and lifted the mattress of the bed. From beneath the mattress, he took out one black color raxine bag and produced the same to the IO and informed that this bag was stolen on 29.01.2012 from Factory no. A-104 WPIA and that he had thrown documents of the bag in a pit in the village pooth kalan. IO checked the back and from inside pocket of the bag, one passport size photograph was found which was put back by the IO in the same pocket. IO seized the bag vide memo Ex.PW21/A. Thereafter, he led them at an open pit in the area of pooth kalan. The open pit was surrounded with boundary wall. The accused led them at a place where the boundary wall was broken. At that place, he pointed out towards the documents which were lying near broken boundary wall. He informed that these documents were thrown by him after taking them out of the bag. Some of the documents were stained with mud and were in a shape which takes place when the documents get dried after being wet. The documents recovered are:
a) One Cheque book of Standard Bank having 8 leafs Ex.PW8/P2 Digitally signed by KIRAN KIRAN GUPTA Date:
GUPTA 2022.05.05 15:40:24 +0530 State Vs. Mohd. Akram & Ors Page 15 of 83 16
b) One Cheque book of Innovative Cooperative Urban Bank Ltd. containing 12 cheque leaves Ex.PW8/P3.
c) 15 receipts of Sahu Urban Cooperative Urban Thrift and Credit Society Ltd. Ex.PW8/P4
d) Photocopy of death certificate of one Pradeep Kumar Ex.PW8/P5
e) Election ID of Anil Kumar Ex.PW8/P6
f) One ICICI Lombard Card in the name of Anil Kumar Ex.PW8/P7
g) ID card in the name of Anil Kumar of Shree Shyam Prabhu Mandal Ex.PW8/P8
h) 15 Attendance cards of various persons Ex.PW8/P9
i) Two Bills of Reliance Communication in the name of Anil Kumar Ex.PW8/P10
j) One receipt of Saroj Hospital and Heart Institute in the name of Sant Kumar Ex.PW8/P11
k) One Neelgagan Notebook containing the account details Ex.PW8/P12 These witnesses deposed that all these documents were seized vide seizure memo Ex.PW21/B. They deposed that Mohd. Afsar led them to WPIA, the factory, where the incident had taken place. He pointed out towards factory no. A-104, vide pointing out memo Ex.PW21/C. Efforts were made to search other accused persons namely Neeraj and Ranjeet, but they could Digitally signed by KIRAN KIRAN GUPTA Date:
GUPTA 2022.05.05 State Vs. Mohd. Akram & Ors 15:40:29 +0530 Page 16 of 83 17 not be found. Thereafter, accused Mohd. Afsar was brought back to police station and case property was deposited in the maalkhana.
PW21 further deposed that on the next day on 25.02.2011, he alongwith other staff and accused Mohd. Afsar, left the police station for searching other accused persons. They went to district Sitapur and District Shahjahanpur in search of other accused persons, but they were not found. They deposed that on 05.03.2011, accused Naushad, Hari, Akram and Umar Ali were produced in the court on production warrants. PW38/IO Inspector Pratap obtained PC remand of all these four accused persons. After their medical examination, they led them at WPIA, at Factory no. A-104, second floor. Accused Naushad, Hari and Umar pointed out the spot one by one vide pointing out memo Ex.PW8/A to Ex.PW8/C. PW21 further deposed that while pointing out the spot, one witness Sunil was present in the factory. His signatures were also obtained on the pointing out memos and his statement was recorded by the IO. PW38/IO made enquiries from two other witnesses namely Uma Shankar and Naval Kishore who were present at the factory and recorded their statements u/S 161 Cr.P.C. Both of them identified the accused persons. Thereafter, all the four accused persons led them to a rented jhuggi in the area of Lal Bagh, Model Town, Delhi. During search of the Digitally signed by KIRAN KIRAN GUPTA State Vs. Mohd. Akram & Ors GUPTA Page 17 of 83 Date:
2022.05.05 15:40:35 +0530 18 jhuggi, no goods were found. Therefter, they went to the Pitam Pura Area, area of Pooth Kalan and other surrounding area for the search of other accused persons, but other accused namely Neeraj and Ranjeet were not found. All the four accused persons were brought back to PS Ashok Vihar. They identified all the four accused persons in the court and the bag recovered at the instance of accused Mohd. Afsar as Ex.PW3/P1 and the photograph found in the said bag as Ex.PW8/P1.
PW21 during his cross examination deposed that on 24.02.2011, though he had joined the investigation after visiting Rohini Courts, however, he had not signed any of the documents prepared by the IO as a witness with respect to the proceedings conducted by him in Rohini court. PW21 and PW41 during their cross-examination admitted the suggestion that the residential locality situated at B Block, Mange Ram Park is a densely populated area. PW41 deposed that IO had asked the names and addresses of 3-4 persons who were asked to join the investigation but they did not disclose their names. IO did not serve any notice upon them. PW21 deposed that the house of Mohd. Afsar was at ground and first floor. Mother of accused Mohd. Afsar was present in the house. IO had requested her to join the proceedings. Both of them admitted that IO neither prepared the site plan of that spot nor called any respectable person from the neighborhood before conducting the proceedings. PW41 Digitally signed by KIRAN KIRAN GUPTA GUPTA Date:
State Vs. Mohd. Akram & Ors 2022.05.05 15:40:40 Page 18 of 83 +0530 19 admitted that house was open at that time. They admitted the suggestion that the raxine bag which was recovered in this case is commonly available in the market. They admitted that the pit at pooth kalan area is a public place and general public has access to that place and people urinate as well as defecate in the open plot of land. He deposed that he does not know whether IO had prepared the site plan of the pit area or not. Both of them admitted that public persons gathered at the spot during proceedings. PW21 and PW41 deposed that IO had made request to public persons, but do not know, whether he had given any notice to those public persons, who refused to join investigation. Both of them admitted that all the documents which were recovered at the instance of Mohd. Afsar were counted, however, pagination was not done by the IO. The seal was handed over back to IO on the same date after exhibits were deposited with malkhana. No written acknowledgement / receipt was executed to that effect. He deposed that the documents which were recovered at the instance of Md. Afsar had some soil/ mitti attached to it when they were recovered. Some of the soil was separated from it.
PW38 during his cross-examination, he deposed that he did not record any DD entry on 22.02.2011 when he took up the investigation in the present case. He admitted that Mangeram park is a densely populated area. He did not inform Digitally signed by KIRAN KIRAN GUPTA State Vs. Mohd. Akram & Ors GUPTA Page 19 of 83 Date:
2022.05.05 15:40:45 +0530 20 the local police upon reaching there. He had not issued any written notice to the public witnesses to join the proceedings. He had not prepared the site plan of the house of accused Afsar. The house was open when they reach there. Mother of accused Afsar was present in the house. He neither took signatures of his mother on any document nor recorded her statement. He admitted that the black colour raxine bags are easily available in the market. He admitted that the vacant piece of land near the house of accused Afsar is used by the residents for defecating purposes. He admitted that it is an open piece of land without any boundary wall.
L. PW21A Inspector Ajay deposed that on 20.02.2011, he was posted as SI at Special Cell, North West District. On the said day, on the direction of Sr. Officer, he alongwith PW31 HC Sheshdhar, Ct. Narender and Ct. Gajender were checking the vehicles at AU block, T Point outer ring road, Pitam Pura, Delhi. At about 8:30 pm a secret informer informed him that at about 8:45 pm, four boys riding on two separate motorcycles would be coming from the side of Income Tax Colony Pitam Pura and would go towards AU Block, Pitam Pura.
They would be in possession of illegal weapon. He shared this information with Sr. Officers, who directed him to carry out the necessary action. He requested 3-4 passersby to join the investigation, but they all went from their without disclosing Digitally signed by KIRAN KIRAN GUPTA State Vs. Mohd. Akram & Ors GUPTA Date: Page 20 of 83 2022.05.05 15:40:52 +0530 21 their names and addresses citing personal reasons. He briefed his accompanying officers HC Sheshdhar, Ct. Narender and Ct. Gajender and they all took their respective positions. At about 8:45 pm, they saw that two motorcycles were coming from the side of Income Tax Colony from the service road of outer ring road and two persons each were riding on it. The secret informer pointed out towards those persons and their motorcycles. When the motorcycles came near them, on his direction Ct. Gajender placed the barricades on the road. Both the motorcycles were stopped. He alongwith Ct. Gajender, stopped the motorcycle make CBZ and the persons riding it were overpowered. The person who was driving the motorcycle, on inquiry disclosed his name as Umar Ali and the pillion rider was Mohd. Afsar. All the four persons were not wearing helmet. He demanded documents of the vehicle from both of them which they could not produce. On informal search of both these persons, one country made pistol loaded with 12 bore live cartridges were recovered from the right dub of Mohd. Afsar and from the right pocket of his wearing trousers, two live cartridges of 12 bore were recovered.
He further deposed that the other motorcycle which was stopped by HC Sheshdhar and Ct. Narender, was bearing UP registration number. On enquiry, the persons on the said motorcycle disclosed their names as Naushad and Hari Singh. On informal search of Hari Singh by HC Sheshdar, one country Digitally signed by KIRAN KIRAN GUPTA Date:
State Vs. Mohd. Akram & Ors GUPTA 2022.05.05 15:40:58 Page 21 of 83 +0530 22 made pistol of 3.15 bore was found loaded with a live cartridge and one live cartridge was recovered from his right pocket. He deposed that he prepared the sketch of the country made pistol and the cartridges recovered from the possession of accused Mohd. Afsar as Mark PW21/A and sealed the same with the seal AK vide seizure memo Mark PW21/B. He prepared the rukka u/S 25/54/59 Arms Act and sent the same to PS through Ct. Gajender for registration of FIR. On enquiry, the full registration number of the motorcycle was found to be DL 4S AG 8825 and FIR regarding theft of the motorcycle was found registered at PS Model Town vide FIR No. 324/10. He took the motorcycle into possession vide memo Mark PW21/C and recorded the disclosure statement of Mohd. Umar Ali as Mark PW21/D. He arrested accused Afsar and Umar Ali u/S 41(1) Cr.P.C. and prepared the kalandara against them. He deposited the motorcycle at PS Maurya Enclave and got lodged DD No. 5A containing original disclosure statement of Umar Ali EX.PW21/1 (already Mark PW21/D). He produced both the accused in the kalanadra in the court on the next day.
M. PW22A HC Perma Ram deposed that he recorded the information of the wireless message dated 29.04.2011 received at 7:25 pm vide DD No. 59B in the roznamcha register as Ex.PW22/A and Ex.PW22/A1. He gave the information of this DD Entry to PW29 SI Ajay Kumar on his mobile for Digitally signed by KIRAN KIRAN GUPTA Date:
State Vs. Mohd. Akram & Ors GUPTA 2022.05.05 15:41:10 Page 22 of 83 +0530 23 necessary action. PW32 Ct. Sandeep was also sent from PS to join PW29 SI Ajay Kumar in this regard.
N. PW24 W/HC Grace, Jharoda Kalan deposed that she attended the call at number 100 at channel no. 110 on 29.01.2011 at 20:41:05 hrs from phone number 1147030900. She recorded the information in PCR Form number 29JAN111100867. She proved the PCR form as Ex. PW24/B and certificate u/S 65-B Evidence Act as Ex.PW24/C. O. PW25 Ct. Ashok Kumar took the three sealed pulandas from PS Ashok Vihar vide RC no. 01/21/11 Mark PW25/A to FSL Rohini and obtained the acknowledgment Mark PW25/B. P. PW28 ASI Mukesh Kumar proved the entries in the register no. 19 as Ex.PW28/A to Ex.PW28/I. Q. PW29 SI Ajay deposed that on receipt of DD no.
59A dated 29.01.2011 he went to Sunder Lal Jain Hospital alongwith Ct. Sandeep and obtained MLC of Anil Thakur and Naval Kishore. After leaving Ct. Sandeep in the hospital, he alongwith Inspector Vinod and Ct. Satender left for the spot. They met Uma Shankar, who claimed to be the eye witness of the incident. IO recorded his statement and called the crime team.
Digitally
signed by
KIRAN
KIRAN GUPTA
State Vs. Mohd. Akram & Ors GUPTA Date:
2022.05.05 Page 23 of 83
15:41:16
+0530
24
During that period, one Meghraj claiming to be an eye witness also reached the spot. IO lifted the earth control and pieces of earth with blood, empty cartridges and other articles lying at the place of incident vide memo Ex.PW3/A to Ex.PW3/C. He deposed that on 30.01.2011 he alongwith IO went to the BJRM Hospital. After postmortem, the dead body was handed over to him by the IO vide memo Ex.PW29/1. He deposed that on 21.02.2011 he alongwith PW30 HC Ashok and Ct. Mutkim Javed went to Mange Ram Poothkalan at H No. B-99. The door of the house was open. When they entered inside the house, accused Mohd Akram started running away towards the staircase. He was overpowered by him and PW30 HC Ashok and was arrested vide arrest memo Ex.PW29/2, his personal search was conducted vide memo Ex.PW29/3 and his disclosure statement Ex.PW29/4 was recorded. PW29 and PW30 proved the seizure memo vide which Rs. 2,000/- were recovered at the instance of accused Mohd. Akram as Ex.PW29/5. The pointing out memo prepared at the instance of accused Mohd. Akram as Ex.PW29/6. He proved the arrest memos of accused Mohd. Afsar, Hari Singh, Umar Ali and Naushad as Ex.PW29/6 to Ex.PW29/9 and their disclosure statements as Ex.PW29/10 to Ex.PW29/13. He deposed that he had also accompanied accused Mohd. Afsar during PC remand and identified his signatures on the seizure memo Ex.PW21/A, Ex/PW21/C and Ex.PW21/D. Digitally signed by KIRAN KIRAN GUPTA GUPTA Date:
Page 24 of 832022.05.05 State Vs. Mohd. Akram & Ors 15:41:21 +0530 25 R. PW30 ASI Ashok in addition to the documents Ex.PW29/1 to Ex.PW29/6, also proved the arrest memo of accused Neeraj and Ranjeet as Ex.PW30/1 and Ex.PW30/2. The disclosure statement of accused Neeraj as Ex.PW30/3, pointing out memo prepared at his instance as Ex.PW30/4. The disclosure statement of accused Ranjeet recorded on 06.07.2011 as Ex.PW30/5 and Ex.PW30/6, respectively. He identified the currency notes as Ex.PW30/X. S. PW33 HC Jagdish proved the DD no. 17A dated 02.06.2011 Ps Ashok Vihar as Ex.PW33/1.
T. PW34 HC Sushil Kumar proved the DD no. 32B dated 05.07.2011 Tis Hazari Lockup as Ex.PW34/A. U. PW35 SI Satish deposed that on the intervening night of 19-20.05.2011 he alongwith his police team apprehended accused Neeraj and Ranjeet. He proved the disclosure statement of accused Neeraj as Ex.PW35/A and of accused Ranjeet as Ex.PW35/B. The sketch of the desi katta and live cartridges recovered from their possession as Ex.PW35/C and Ex.PW35/D. V. PW39 ASI Mange Ram. He is the MHC(M) who proved the entry in register no. 19 with respect to one motorcycle Digitally signed by KIRAN KIRAN GUPTA State Vs. Mohd. Akram & Ors GUPTA Date: Page 25 of 83 2022.05.05 15:41:32 +0530 26 stolen vide FIR No. 324/10 as Ex.PW39/A and deposed that the said motorcycle was deposited vide RC no. 131/21/14 as Ex.PW39/B. W. PW40 ASI Ajay Pal Singh. He is the MHC(M) who proved the entry in register no. 19 dated 21.02.2011 with respect to pulanda containing desi katta and cartridge, one motorcycle and jamatalashi of accused Mohd. Umar and Mohd. Afsar as Ex.PW40/A. One pulanda containing desi katta and rounds, motorcycle and jamatalashi of accused Naushad and Hari Singh as Ex.PW40/B. X. PW42 Ram Singh deposed that the investigation of this case was taken over by him on 25.04.2011. By that time, five accused persons namely Afsar, Mohd. Akram , Hari Singh, Naushad and Umar Ali had already been arrested. Two accused persons namely Ranjeet Bihari and Neeraj were absconding. He initiated proceedings U/s. 82 Cr.P.C against them and filed the charge sheet against the remaining accused persons. On 02.06.2011, he received information from PS North Rohini about arrest of Ranjeet and Neeraj and their involvement in the present case which was recorded vide DD no.17 A Ex.PW33/1. He alongwith PW36 SI Ved Prakash formally arrested them from Rohini Courts vide memo Ex.PW30/1 and Ex.PW30/2. Accused Neeraj refused for TIP. On 09.06.2011, he obtained PC remand of Digitally signed by KIRAN State Vs. Mohd. Akram & Ors KIRAN GUPTA GUPTA Date:
Page 26 of 832022.05.05 15:41:38 +0530 27 accused Neeraj and on 10.06.2011, accused Neeraj took them to the place of incident and pointed it out vide memo Ex.PW30/4.
He deposed that in the meantime, accused Ranjeet Bihari ran away from custody. He was arrested on 23.06.2011 and his TIP was fixed for 05.07.2011, however, the witnesses did not identify him. On 07.07.2011, he took them to the place of incident and pointed it out vide memo Ex.PW8/A. He deposed that on 07.07.2011, two workers namely Indal and Nawal Kishore who were eye witness to the incident came to PS and told them they had identified accused Ranjeet Bihari as one of the culprit who had committed dacoity. He recorded their supplementary statement. They further told that when they were waiting in jail n 05.07.2011 for TIP of accused Ranjeet, accused Afsar who was brought on jail by Jail Van stared at them, due to which they got frightened and did not identify accused Ranjeet. He verified the said fact from PW37 SI Amit and incharge of the Jail van PW45 HC Ravinder and found that Afsar was brought to Rohini Jail from Tis Hazari Courts on that day. He was brought by mistake to the place where TIP was being conducted. Thereafter, he got the statement of Indal and Nawal Kishore recorded U/s. 164 Cr.P.C on 27.07.2011. Thereafter, when he was on leave, Inspector Vinod Kumar recorded supplementary statement of Indal, Nawal Kishore and Meghraj with respect to the identity of accused Neeraj. He obtained the various FSL Digitally signed by KIRAN KIRAN GUPTA GUPTA Date:
State Vs. Mohd. Akram & Ors 2022.05.05 15:41:44 Page 27 of 83 +0530 28 results and filed the supplementary charge sheet against both these accused persons.
He during his cross-examination admitted that no public witness to the arrest of accused Neeraj and Ranjeet Bihari were made when they were formally arrested in the Court. Though he had made the departure entry in the PS while leaving alongwith accused Neeraj for identification of the crime spot, however, he does not recollect its number. Two public persons who were found near the crime spot had joined the proceedings and signed the pointing out memo. No factory worker was asked to remain witness of these proceedings.
Y. PW45 HC Ravinder deposed that on 05.07.2011, he was posted as Guard cum Incharge on the jail van no.DL-1P 7016. At 3.46 p.m, the said jail van left Tis Hazari Courts alongwith Md. Afsar- high risk inmate and 12 ordinary inmates for Rohini Jail vide DD no.32 A. At about 4.10 p.m, they reached Rohini Jail. The 12 ordinary inmates were received in Rohini Jail. He was told that Md. Afsar is not lodged in Rohini and is lodged in Central Jail, Tihar. They remained at the entry gate of Rohini Jail Complex for about 15 minutes. Thereafter, they brought Mohd. Afsar again into the jail van and took him to Central Jail, Tihar.
Digitally signed by KIRAN KIRAN GUPTA GUPTA Date:
2022.05.05 15:41:50 State Vs. Mohd. Akram & Ors +0530 Page 28 of 83 29 He during his cross-examination admitted that he had not brought accused Afsar in his jail Van from Rohini to Tis Hazari on that day. He admitted that high risk jail inmates are brought from jail to the court complex in a separate van and are taken back to the jail in a separate van. The lock up Incharge tells them as to which jail inmates are to be taken.
FORMAL WITNESSES A. PW11 Pradeep Kumar Vohra is the owner of the motorcycle which is the case property of FIR no.324/10 Ex.PW11/A. He produced the RC of the motorcycle as Ex.PW11/B. B. PW4 Sh. Jai Prakash. He proved his statement recorded by the IO dated 30.01.2011 regarding identification of the body of deceased as Ex.PW4/A. He identified his signature on the inquest form 25.35 Ex.PW4/B. C. PW18 Sh. V.K. Jha, is the concerned MM who conducted the TIP proceedings of case property. He deposed that on 17.03.2011 Inspector Pratap Singh appeared with witness Sant Kumar and Sunil Kumar and identified them vide statement Ex.PW18/A. The IO produced one pulanda sealed with seal PSB. The seal was intact. He arranged the case properties and changed Digitally signed by KIRAN KIRAN GUPTA GUPTA Page 29 of 83 Date:
State Vs. Mohd. Akram & Ors 2022.05.05 15:41:55 +0530 30 the position of the case properties at each time when witness Sant Kumar and Sunil Kumar were outside the chamber. He deposed that he called Sant Kumar and Sunil Kumar, turn wise to his chamber. Both of them identified one black color raxine bag and on his request, they opened the bag. From the bag, one photograph was found, which was identified by Sant Kumar as the photograph of his son Anil Kumar and by Sunil Kumar as the photograph of his brother Anil Kumar. The witness proved the statement of Sant Kumar as Ex.PW10/A and statement of Sunil Kumar as Ex.PW18/A1. He further deposed that both the witnesses correctly identified the raxine bag and the photograph found in the bag. He deposed that case property was again sealed with the seal VKJ. He proved the TIP proceedings and the certificate Ex.PW18/A2, the application of IO as Ex.PW18/B and the application with his order as Ex.PW18/C. He further deposed that an application for conducting the TIP proceedings of accused Neeraj and Ranjeet @ Bihari Ex.PW18/D5 was filed by the IO. On 07.06.2011, he went to Rohini Jail for conducting TIP of accused Neeraj. He proved the report of Jail Superintendent, Rohini Jail as Ex.PW18/D. He deposed that accused Neeraj refused to join the TIP proceedings. He proved the statement of accused Neeraj as Ex. PW18/D1 and the certificate issue by him as Ex.PW18/D2 Digitally signed by KIRAN KIRAN GUPTA State Vs. Mohd. Akram & Ors GUPTA Date:
2022.05.05 Page 30 of 83 15:42:00 +0530 31 and applicatoin of IO as Ex.PW18/D3, copy of his order Ex.PW18/D4.
He further deposed that on 26.02.2011 an application Ex.PW18/E3 of IO Inspector Vinod Kumar Sharma was moved for fixing the TIP proceedings of accused Akram @ Kareem, Mohd. Umar Ali, Hari Singh and Naushad. He deposed that on 03.03.2011 he reached Rohini Jail. Accused Umar Ali, Hari Singh, Mohd. Akram and Naushad were produced and identified by Jail Superintendent. He recorded his statement Ex.PW18/E, Ex.PW18/F, Ex.PW18/G and Ex.PW18/H. He deposed that all these four accused persons refused to join the TIP proceedings. He recorded their statements Ex.PW18/E1, Ex.PW18/F1, Ex.PW18/G1, Ex.PW18/H1 and issued the certificates Ex.PW18/E2, Ex.PW18/F2, Ex.PW18/G2 and Ex.PW18/H2.
He deposed that on application of the IO Ex.PW18/H3, copy of TIP proceedings were supplied to him vide order Ex.PW18/H5. He further deposed that on 27.07.2011 he recorded the statement u/S 164 Cr.P.C. of Naval Kishore Ex.PW18/J2 and Indal Ex.PW20/A. He proved the certificate as Ex.PW18/J3.
Digitally signed by KIRAN KIRAN GUPTA Date:
GUPTA 2022.05.05
15:42:08
+0530
State Vs. Mohd. Akram & Ors Page 31 of 83
32
D. PW22 K.C. Gupta, Manager Innovative
Cooperative Urban Bank Ltd. Deposed that the account no. 1335 was opened by Anil Kumar on 11.06.2003. He proved the account opening form and allied documents as Ex.PW22/A (colly). The attested copy of statement of account from 15.01.2005 to 26.05.2011 as Ex.PW22/B. E. PW27 Ms. Misha Bansal, Sr. Relationship Manager, Standard Chartered Bank, proved the notice u/S 91 Cr.P.C. dated 12.05.2011 as Ex.PW27/A and her reply Ex.PW27/B. She deposed as per the record, account no. 52205672791 belonged to Mr. Anil Kumar.
MEDICAL AND FORENSIC EVIDENCE A. PW23 Dr. Dilip Kumar CMO, Sunderlal Jain Hospital deposed on behalf of Dr. P.M. Sood, who prepared the MLC of patient Anil Thakur dated 29.01.2011 as Ex.PW23/A. He deposed that as per the MLC, the patient was brought at 7:30 pm with alleged history of having been shot at office gate at 7:20 pm by 5-6 men. He was brought to hospital at 7:30 pm by Harish Jain and Naval Kishore and fellow man. There was no bleeding at head and no B.P. was recorded. The patient was declared dead. 3 x3 inches wound behind right ear was present and the mouth was full of blood.
Digitally signed by KIRAN KIRAN GUPTA Date:
GUPTA 2022.05.05 15:42:14 +0530 State Vs. Mohd. Akram & Ors Page 32 of 83 33 B. PW26 Dr. V.K. Jha, proved the postmortem report of deceased Anil as Ex.PW26/A. C. PW43 Dr. Banita Rawat, SSA, FSL Rohini. She proved the FSL report dated 22.06.2011 as Ex.PW43/A and Ex.PW43/B. D. PW44 Dr. V.R. Anand, Asst. Director, Ballistics, proved the ballistic report dated 31.10.2011 as Ex.PW44/A and Ex.PW44/B. MATERIAL WITNESSES A. PW3 Meghraj deposed that on 29.01.2011, at about 6:30 pm, he went to factory of deceased Anil. Anil told him to see the transaction of packing. Accordingly, he went in the back room of the office of the factory for looking the transaction/hisab kitab. At about 7 pm, he heard noise coming from the side of office of Anil. On hearing the noise, when he came down towards gallery of the office, he saw two persons were beating Naval Kishore, employee of Anil. When Anil protested, two persons who were standing near Anil, one of them fired from the country made pistol on Anil. Anil fell down. He became perplexed and Digitally signed by KIRAN KIRAN GUPTA Date:
GUPTA 2022.05.05 State Vs. Mohd. Akram & Ors Page 33 of 83 15:42:20 +0530 34 sat down there. Then that two persons, who were standing near Anil, went inside the office of Anil and went away with the bag from his office. After they went, he saw Anil in pool of blood. He immediately informed Harish Jain, the owner of the factory of the ground floor and asked him to take out the vehicle. They took Anil in injured condition to Sunder Lal Jain Hospital, where he was declared dead. He gave information to Sunil, brother of deceased, who also reached Sunder Lal Jain hospital. He went to factory to close it. When he reached the factory, the IO with other staff met him there. IO picked up the blood, blood stained earth control from the spot and seized the same vide memo Ex.PW3/A in his presence. IO also seized one empty bullet case and one fired cartridge from near the wall of the factory. He prepared the sketch of these two items in his presence as Ex.PW3/B and seized them vide memo Ex.PW3/C. The witness pointed towards accused Mohd. Akram and Neeraj and identified them as the persons who had given beatings to Naval Kishore. He then pointed out towards accused Naushad and Ranjeet and deposed that they were standing near deceased Anil. He deposed that accused Ranjeet fired on Anil and accused Naushad was standing with him. Thereafter, these two accused went in the office of Anil and took away one black colored bag. He deposed that he had participated in the inquest proceedings and identified the dead body of Anil and his statement Ex.PW3/D was recorded on 30.01.2011. He deposed that on 16.08.2011, he had come to Digitally signed by KIRAN KIRAN GUPTA GUPTA Page 34 of 83 Date:
State Vs. Mohd. Akram & Ors 2022.05.05 15:42:31 +0530 35 Rohini court in the pervi of this case alongwith Sunil Thakur, Naval Kishore and Indal. IO met him there and he identified accused Neeraj in the court premises and IO recorded his statement. He correctly identified the bag taken by accused Ranjeet and Naushad from the office of Anil after firing upon him as Ex.PW3/P1.
He during his cross examination deposed that his statement was recorded twice. Once, when the incident had happened and secondly, when the postmortem was conducted. He admitted that the area in which the alleged incident happened remains heavily crowded with many public persons, which includes neighborers, transport vehicle owners as well as persons who come for making purchases. He deposed that the building A- 104, is built upto third floor and on the roof of third floor only a tin shed is there. He admitted the suggestion that the factories below the factory of Anil were functioning at that time. He deposed that contents of his statement u/S 161 Cr.P.C were read over to him by the police officials after it was recorded. He deposed that he had stated to the police in his statement regarding the description, facial features and the clothes worn by the persons who had visited the factory of deceased and had beaten Naval Kishore. When he was confronted with his statement, the same was not found recorded. He denied the suggestion that he had seen the accused persons for the first time in the court on the Digitally signed by KIRAN KIRAN GUPTA State Vs. Mohd. Akram & Ors GUPTA Date: Page 35 of 83 2022.05.05 15:42:36 +0530 36 date of his examination in chief. He also denied the suggestion that he was shown the photographs of accused persons in order to get them identified prior to his coming to the court as witness. He admitted that he had not stated to the police while giving the statement that Uma Shankar was also present in the factory as the same was not asked from him by the police while recording his statement. He deposed that IO did not make any sketch of culprits at his instance. He admitted the suggestion that police did not make any enquiry from him as to by whom the injuries have been caused to the deceased. He remained at the hospital with police officials for about 1-1.5 hours and during the said period the police did not record his statement. When he was shown his statement u/S. 161 Cr.P.C. Ex.PW3/DA, he admitted that there is no mention in the statement that he can identify the persons who had committed the offence.
B. PW7 Naval Kishore deposed that on 29.01.2011 at about 7 pm, he went to the owner of factory Sh. Anil to tell him that the raw material for steel polishing is finished and is not available in the factory and asked him to accompany him to the godown at third floor for getting the polishing material. There was a guard namely Uma Shankar who was present on the outer gate of the second floor. As soon as they came out of the office of Anil for going to third floor, he was 2-3 yards ahead of Anil. At that time, someone hit him with his fist on his face. He pointed Digitally signed by KIRAN KIRAN GUPTA GUPTA Date:
State Vs. Mohd. Akram & Ors 2022.05.05 15:42:42 Page 36 of 83 +0530 37 towards accused Neeraj and stated that he hit him on his face. He deposed that all the other accused persons who are present in the court were present just outside the office of Anil. He deposed that Anil told the accused persons that they can take whatever they want without giving beatings to them. He deposed that accused Ranjeet fired a bullet on Anil Thakur. One of the accused exhorted to others to pick up the bag. Then they lifted the bag of Anil Thakur from the office and ran away. After the accused persons left, he saw, Anil Thakur fell just at the door of his office and was having bullet injury just below his right ear. Meghraj, who was present in the packing room, came there. He alongwith Meghraj and Harish took Anil to Sunder Lal Jain Hospital. Meghraj called brother of Anil Thakur. He came back to factory as was directed by younger brother of Anil. Police visited factory to make enquiry.
He further deposed that due to the incident, he was perturbed, hence, was not in a position to reply to the queries of the police. Police recorded his statement after 2 days of the incident. After about 1 month of the incident, police brought four accused persons one by one. He identified them as the persons who were present in the factory on the date of incident and were responsible for the offences. At that time their names were revealed. He does not remember names but can identify the accused persons by their faces. Those four persons whom the Digitally signed by KIRAN State Vs. Mohd. Akram & Ors KIRAN GUPTA Page 37 of 83 GUPTA Date:
2022.05.05 15:42:48 +0530 38 police had brought and were identified by him, one of them was having knife while other three had country made pistol with them on the date of incident. Subsequently, he alongwith Meghraj, Uma Shankar and Indal joined TIP proceedings at Rohini Jail. During TIP, he was threatened by a boy who stared at him, hence, he could not identify the accused during judicial TIP Ex.PW7/A(TIP of accused Ranjeet). He deposed that after about 2 days of TIP proceedings, when the said accused namely Ranjeet was brought to the factory for pointing out by the police, there he identified him to be the one who had fired at Anil. He gave statement u/S 164 Cr.P.C. Ex.PW7/B in this regard before ld. MM.
He deposed that he again joined investigation with the police and identified accused Neeraj on 29.06.2011 in Rohini court. He deposed that in all six accused persons came inside the factory. One of them gave fist blow to him. Accused Ranjeet gave bullet injury to Anil. He does not know as to whether any of their accomplice was standing out of the factory. He had clearly seen four accused persons, out of six who came inside the factory. He identified those four persons as accused Mohd. Akram, Neeraj, Ranjeet and Naushad.
Since the witness did not identify accused Umar Ali, he was duly cross examined by ld. APP for the State.
Digitally
signed by
KIRAN KIRAN GUPTA
Date:
GUPTA 2022.05.05
State Vs. Mohd. Akram & Ors 15:53:09
+0530 Page 38 of 83
39
The said witness was duly cross examined by ld. Defence counsels. During his cross examination, he deposed that he does not remember the dates when his statements were recorded by the police. He deposed that his first statement was recorded 2 days after the incident. He did not read his statement on his own but it was read over to him by the police. He deposed that he had stated in his statement to the police that in all six accused persons came inside the factory. Police had made enquiry from him regarding physical description of the accused persons. He told to the police about physical description of the accused persons. He was confronted with his statement Ex.PW7/DA, where it is not so recorded. He deposed that he does not remember exactly as to whether in his first statement which was recorded two days after the incident, whether he had or had not given the physical description of assailants. He does not remember exactly as to whether police had asked him , if, he can identify assailants or not. He had told Sunil, brother of deceased about the physical description of the assailants. He admitted the suggestion that after the incident, police kept on visiting the factory for about 15 days on regular basis. He admitted that during those 15 days he had not stated physical description of the accused persons to the police. His last statement was recorded after 7-8 months of the incident. He Digitally signed by KIRAN KIRAN GUPTA Date:
GUPTA 2022.05.05 15:53:16 +0530 State Vs. Mohd. Akram & Ors Page 39 of 83 40 admitted that he had not stated physical description of the assailants even in his last statement.
He further deposed that at the time when TIP was being conducted, he did not state to the concerned Judicial Officer, that he was threatened by accused, therefore he did not identify him. After judicial TIP, police recorded his statement after 2-3 days wherein he had mentioned the fact as to why he did not identify accused Ranjeet as he was threatened. He was duly confronted with his statement Ex.PW7/DC where the words "threatened" as reason of non identification is not mentioned, rather the words "main ghabrahat ke karan mulzim ki shinakht nahi kar paya". He admitted that on the date when the statement U/s.164 Cr.P.C was recorded, brother of deceased had also visited the court with him.
C. PW 8 Sunil Kumar Thakur. He is the brother of the deceased. He deposed that on 29.01.2011, at about 6/6.15 p.m, he alongwith his father came back from the factory. At about 7/7.15 p.m, he received a call from Meghraj who told him that some persons had shot his brother Anil in the factory. He immediately went to Sunder Lal Jain hospital. On reaching there, Meghraj told him that his brother had expired due to bullet injuries. Then, he instructed Meghraj to go to the house and bring his father without disclosing him about the death of Anil. After Digitally signed by KIRAN KIRAN GUPTA Date:
State Vs. Mohd. Akram & Ors GUPTA 2022.05.05 15:53:21 Page 40 of 83 +0530 41 some time, his father alongwith Meghraj reached the hospital. During inquiry and after searching the factory, they came to know that those 7/8 persons who had killed his brother had also taken away the bag of his brother containing cash and certain papers. He deposed that after death of his brother, police kept on visiting their factory premises for the purpose of making enquiries.
He deposed that in the month of February and March, police alongwith accused persons arrested during investigation visited the factory. Those accused persons pointed out the place of incident vide Ex.PW8/A to Ex.PW8/C. Names of those persons were revealed as Umar Ali, Naushad and Hari Singh. He deposed that accused Ranjeet Bihari was apprehended by the police at last and he was also brought to the factory and he identified the place of incident vide Ex.PW8/D. He proved the TIP proceedings of the bag as Ex.PW8/E and the articles recovered from the bag as Ex.PW8/P2 to Ex.PW8/P12. He identified the clothes of deceased as Ex.PW8/P13.
During his cross examination, he admitted that he had not mentioned the brand name of the bag or any specific identification mark on it. He admitted that during investigation he had not handed over any documentary evidence or proof to the police regarding withdrawal of money by his brother from any Digitally signed by KIRAN KIRAN GUPTA State Vs. Mohd. Akram & Ors GUPTA Date:2022.05.05 Page 41 of 83
15:53:27 +0530 42 bank or financial institution. He admitted that in the 15 attendance cards Ex.PW8/P9, the attendance card of Meghraj and Uma Shankar are not there. He volunteered that Meghraj was not their worker whereas Uma Shankar was posted as Chowkidar.
D. PW9 Harish Jain deposed that on 29.01.2011, he was present in the factory at 1 st floor. At around 6/7 p.m, the door of his factory was knocked by some workers from the 2 nd floor. When he opened the door, one of the person came inside and informed him that Anil had suffered gun shot. When he rushed to the second floor, he saw some persons and one person namely Meghraj were taking Anil down through stairs. He immediately took the key of the car and rushed to the car which was parked outside the office. Then, with the help of Meghraj, he took Anil to Sunderlal Jain hospital, where he was declared brought dead.
E. PW10 Sant Kumar is the father of the deceased. He deposed that his son Anil used to keep one black color raxine bag in which he used to keep some documents i.e. passbooks and bank accounts. On 29.01.2011, he had withdrawn a sum of Rs.40,000/- from his bank account and same was kept in his black colour raxine bag. At around 6 p.m, he was not feeling well, hence, he went to his house with his younger son Sunil. At 8.30 p.m, he received phone call from Meghraj and he alongwith Meghraj went to Sunder Lal Jain hospital, where he came to Digitally signed by KIRAN KIRAN GUPTA State Vs. Mohd. Akram & Ors GUPTA Date:2022.05.05 Page 42 of 83
15:53:33 +0530 43 know that his son Anil suffered bullet injury and has been declared dead. He deposed that he participated in the TIP proceedings Ex.PW10/A and identified the raxine bag as Ex.PW3/P1.
He during his cross examination admitted that he had not mentioned any unique identification mark on the bag Ex.PW3/P1. He admitted the suggestion that he had not stated to the police that Meghraj told him that in his presence some persons had fired at his son. He admitted that he had not handed over any document to the police official to show that from which account the amount was withdrawn.
F. PW19 Uma Shankar Rai deposed that incident took place in 2011. He was working as security guard at second floor A-104 WPIA belonging to Anil for about 8-9 months. He used to sit outside the gate of the factory at second floor and his duty hours were from 9 and till 9 pm. On 29.01.2011, at about 7 p.m, he was present just outside the gate of the factory at second floor and was on his duty. At that time, he noticed 4-5 persons climbing up the stairs. All those 4-5 persons were carrying arms with them. One of them who was in front of others was carrying a country made pistol. He asked them as to whom they want to meet. One of them on his asking started beating him. In order to save himself, he went inside the factory raising alarm "bauji Digitally signed by KIRAN KIRAN GUPTA State Vs. Mohd. Akram & Ors GUPTA Date:2022.05.05 Page 43 of 83
15:53:40 +0530 44 bauji". By that time bauji i.e. Anil, the owner of the factory came out from his office/ cabin. One of those persons fired at Anil. At that time, one Nawal Kishore who was working in the factory was also present with Anil Kumar. Those persons gave beatings to Naval Kishore as well. Two of them then went inside the cabin of Anil and picked up a black colour bag belonging to Anil. One of them had taken out a bundle of currency notes of the denomination of Rs.100/- each from the drawer of Anil Kumar. Thereafter, all of them ran away from the factory alongwith the bag and bundle of currency notes of Rs.100/-. He raised alarm for help and from the window which was there on second floor, where he used to sit, he saw 7-8 persons running away from the said factory after this incident.
He thereafter looked Anil Kumar who was lying just outside his cabin and blood was flowing out of gun shot injuries sustained by him. Naval Kishore who had also sustained injuries on his face was lying near Anil Kumar. He raised alarm on which persons from adjoining factories/office came there. Thereafter, Meghraj took Anil and Naval Kishore to the hospital. After some time, police came at the spot and made enquiries from him and recorded his statement Ex.PW19/A. He showed the place of incident and pointed out the place where Anil sustained gun shot injury. Police prepared the site plan Ex.PW19/B at his instance.
Digitally signed by KIRAN KIRAN GUPTA State Vs. Mohd. Akram & Ors GUPTA Date:
2022.05.05 Page 44 of 83 15:53:46 +0530 45 He further deposed that after about one month of the incident, police officials came to the factory alongwith 3-4 persons who were in custody. He had informed Sant Kumar, father of deceased Anil Kumar in the presence of the police that these accused persons were the one's who on 29.01.2011 had come to the factory and killed Anil Kumar. He identified accused Ranjeet, Hari Singh and Neeraj and stated that accused Ranjeet had fired gun shot on Anil Kumar whereas Hari Singh gave beatings to him. Neeraj had taken away the bag from the cabin of Anil Kumar. He deposed that he cannot identify the other accused persons due to lapse of time. He identified the bag as Ex.PW3/P1.
The said witness was cross-examined by the Ld. APP on the aspect of identity and role of one of the accused persons. During cross examination, Ld. APP drew his attention towards accused Naushad. The witness after seeing accused Naushad, deposed that he was with accused Neeraj when Neeraj had taken bag from the cabin of Anil Kumar. He deposed that he does not remember whether Naushad was carrying country made pistol with him at that time due to lapse of time. The ld. APP then pointed out towards accused Umar and Mohd. Akram. After seeing them he stated that Umar and Akram were also brought by the police on 05.03.2011 and he had identified them on the said date to be the one who were present at the time of incident. He Digitally signed by KIRAN KIRAN GUPTA State Vs. Mohd. Akram & Ors GUPTA Date:2022.05.05 Page 45 of 83
15:53:51 +0530 46 deposed that he had re-collected the facts and faces of these persons after seeing them.
During cross-examination by Ld. Defence Counsel, he admitted the suggestion that prior to working with Anil Kumar, he had never worked as security guard anywhere. At the time of incident, he did not use to mark his attendance. When he was shown the site plan Ex.PW19/B, he admitted that the same does not bear his signature. He deposed that for entering the second floor of the premises, there was only one entry i.e. through staircase. He admitted that he was not issued any ID card by the owner. He deposed that he had told to the police about the window from which he had seen 7-8 persons escaping from the spot after the incident. He cannot say whether the IO had shown the said window in the site-plan Ex.PW19/B. He deposed that when he lodged his complaint Ex.PW19/A, he had not stated to the police that from the window, he had seen 7-8 persons escaping from the spot. He admitted that the police had recorded his statement when they prepared the site plan at his instance and he had told that he had seen 7-8 persons escaping from the spot after the incident. He was duly confronted with his statement Ex.PW19/DA where it is not so recorded. He deposed that he had not stated in his complaint or any statement given by him thereafter that he can KIRAN State Vs. Mohd. Akram & Ors GUPTA Page 46 of 83 Digitally signed by KIRAN GUPTA Date: 2022.05.05 15:53:56 +0530 47 identify the accused persons, if shown to him. He admitted the suggestion that after 5.30 p.m. on the said date, it was evening and it became misty. The height of the second floor from ground floor must have been 20-25 ft. He denied the suggestion that due to darkness and misty weather the visibility was not beyond 4-5 ft. He admitted that in his complaint to the police, he had not mentioned the age and description of the accused persons who had come to the factory at the time of the incident. Police had neither prepared any sketch of the accused persons at his instance nor they asked him to describe the physical features of the accused persons. The date on which police brought the accused persons on the spot, they were not in muffled faces. On 05.03.2011, when accused persons were brought at the spot his signatures were not obtained on any paper.
He deposed that he met the police on two occasions with respect to the present case. Firstly, on the date of the incident and secondly on the day, when the police brought the accused persons at the spot. His complaint was recorded by the police after about 3 hours of the incident. He was duly confronted with his statement Ex.PW19/A, where following facts are not mentioned, as deposed by him- That the number of persons was 4-5 who were climbing the stairs; one of those persons had country made pistol in his hand and others had knives in their hands; that he raised alarm and called the owner.
Digitally
signed by
KIRAN
KIRAN GUPTA
GUPTA Date:
State Vs. Mohd. Akram & Ors 2022.05.05
15:54:15
Page 47 of 83
+0530
48
He admitted that during TIP proceedings he had not identified accused Ranjeet @ Bihari. He admitted that accused Ranjeet @ Bihari was not one of those four persons who were brought at the spot by the police on 05.03.2011. He admitted that after 05.03.2011, Police had not brought any other accused persons at the spot in his presence. He admitted that he had not stated the fact that he could not identify accused Ranjit during TIP to the presiding officer as he got disturbed / perturbed. He admitted that accused Neeraj was not brought to the spot by police in his presence. He admitted that he had not seen accused Neeraj during the course of investigation and had seen him only in Court during his examination in chief after the date of the incident.
G. PW20 Indal deposed that in the year 2011 he was doing the job of packing at the factory of Anil which was situated at the second and third floor. On 29.01.2011, at about 7 p.m. in the evening, he was coming down from the 3rd floor to the second floor through the stair case. He was bringing down the utensils for the purpose of packing. While coming down from the stair case, when he reached near the main gate of the second floor, he saw one stoutly built person standing at the gate. When he was going towards the gate, said person stopped him by pointing a knife. After few minutes, he saw 5 persons came out from the Digitally signed by KIRAN KIRAN GUPTA GUPTA Date:
State Vs. Mohd. Akram & Ors 2022.05.05 15:54:28 Page 48 of 83 +0530 49 second floor through the door. All those 5 persons alongwith the one who had stopped him at the gate, went downwards and ran away. All these persons were carrying arms. Some were having knife and some were having country made pistol. One of the boys who came from the 2nd floor was having a black colour bag. This bag which the accused were having with them belonged to the owner Sh. Anil Kumar. By that time, he noticed security guard Umashankar was raising alarm. He went inside the factory at 2nd floor and found Anil lying on floor and blood coming out from the injury which he had suffered. Besides him, he found Nawal Kishore having injury on his face.
One Harish Kumar who was having his factory on the 1st floor also came there. Thereafter, Meghraj and Harish Kumar, alongwith Uma Shankar and he himself brought Anil Kumar from second floor to ground floor. Thereafter, Meghraj and Harish took Anil and Nawal Kishore to hospital. He deposed that subsequently, he was called by the IO to join judicial TIP. On 05.07.2011, he alongwith Nawal Kishore, Meghraj and Umashankar went to Rohini Jail for TIP. While, they were waiting outside, at that time Md. Afsar who used to reside in Wazirpur area met him and threatened him not to identify anyone by making threatening gestures. He got frightened and during the proceedings, he did not identify the accused. He knows Mohd.
Afsar as he used to indulge in criminal activities and was a Digitally signed by KIRAN KIRAN GUPTA GUPTA Date:
2022.05.05 Page 49 of 83 15:54:35 State Vs. Mohd. Akram & Ors +0530 50 known character of the area.
He further deposed that after 2 days, police brought one accused at the spot. On seeing the said person, he identified him to be the one whom he had seen running away from the factory on the date of incident with a country made pistol in his hands. He proved his statement U/s. 164 Cr.P.C as Ex.PW20/A. He deposed that after few days, he alongwith Sunil @ Sonu had visited Rohini Court Complex for some work and were present outside one court room where police had produced accused Neeraj whom he had seen and identified him to be the one of those persons who had come to the factory on the date of the incident alongwith the others. On the same date, Nawal Kishore and Meghraj were also with them in Court and they had also identified accused Neeraj.
He after seeing the accused persons, identified accused Hari Singh, Ranjeet Bihari, Akram and Naushad as the persons who were having country made pistols in their hands. He deposed that he had also seen the bag in the hands of accused Naushad. He identified accused Umar as the person who was having a knife in his hand and was standing on the gate of the second floor and as the person who had stopped him when he was coming down from 3rd floor to the second floor. He pointed towards Neeraj and deposed that he was having knife in his hand Digitally signed by KIRAN KIRAN GUPTA State Vs. Mohd. Akram & Ors GUPTA Date:2022.05.05 Page 50 of 83
15:54:41 +0530 51 and he is the one whom he had identified in Rohini Court. He identified accused Md. Afsar as the one who had threatened him in jail when he went for TIP. He identified the bag as Ex.PW3/P1.
During cross-examination by the Ld. Defence Counsel, he deposed that police met him in the factory for the first time after two days of the incident when he went to the factory to join his duties. He did not visit the factory on the next day of the incident. He was working in the factory for the last 8-9 years. He deposed that police had recorded his statement as to what he had stated to them but the same was not read over to him. Police had recorded his statement after maknig inquiries from him for about 5 minutes. Police had not inquired from him about the physical description of the culprits nor he stated the same in his statement. He deposed that he had stated to the police that he can identify all the culprits, if, shown to him. He was confronted with his statement Ex.PW20/DA , where it is not so recorded.
He admitted that he went to Rohini Jail on 05.07.2011 for TIP of accused Ranjeet. He admitted that he had not identified accused Ranjeet. He had not stated to the Presiding Officer or any other police official present there regarding the threat extended to him before the TIP proceedings as he got Digitally signed by KIRAN State Vs. Mohd. Akram & Ors KIRAN GUPTA Page 51 of 83 GUPTA Date:
2022.05.05 15:54:46 +0530 52 frightened. He deposed that in his statement which was recorded after he identified accused Neeraj, he had mentioned that he was having a knife in his hand on the date of the incident. He was confronted with his statement Ex.PW20/DB where it is not so recorded. Prior to said date, he had not told the IO that he can identify that person. He admitted that he had seen accused Hari Singh during the course of his examination in chief in court only. He volunteered that he had seen him prior thereto on the date of incident. He had not stated to be police that he can identify the bag, if, shown to him. He had not stated the description or specific mark of identification on the bag in his statement either to the police or the ld. MM.
STATEMENT OF ACCUSED PERSONS
5. After completion of prosecution evidence, all incriminating material as appearing in the evidence was put to the accused persons under Section 313 Cr.PC. They pleaded innocence and stated that they have been falsely implicated in this case and recovery has been implanted upon them. They were not present at the spot. They did not lead any evidence in their defence. Digitally signed by KIRAN KIRAN GUPTA GUPTA Date:
2022.05.05 15:54:51 +0530 State Vs. Mohd. Akram & Ors Page 52 of 83 53 ARGUMENTS
6. It is argued by the ld. APP for the State that all the prosecution witnesses have duly supported the case of prosecution and correctly identified the accused persons in the court. It is further submitted that each witness has attributed specific role to each of the accused. It is prayed that since the prosecution has proved its case against the accused persons beyond the pales of reasonable doubt, all the accused persons be convicted for the offences for which the charges have been framed against them.
7. Per contra, it is argued by respective ld. Defence counsels that all the accused persons have been falsely implicated in the present case. They were arrested in some other cases. Their signatures were obtained on blank papers which were subsequently manipulated into disclosure statements. It is submitted that except the disclosure statements, there is no incriminating evidence against any of the accused persons. It is submitted by ld. Defence counsel representing accused Ranjeet @ Bihari that both PW20 Indal and PW7 Naval Kishore failed to identify accused Ranjeet during his TIP proceedings. His identification for the first time by these witnesses in the court is a weak evidence. It is further submitted that all the accused persons have been identified for the first time by the witnesses in the Digitally signed by KIRAN KIRAN GUPTA State Vs. Mohd. Akram & Ors GUPTA Date:
2022.05.05 Page 53 of 83 15:54:57 +0530 54 court which is a weak evidence and is not corroborated with any other evidence. It is submitted that witnesses have deliberately identified the accused persons at the instance of the IO in order to solve this case.
7.1 It is further argued that PW3 Meghraj has not identified accused Hari Singh and Umar Ali during his examination in chief. PW7 Naval Kishore had also not identified accused Hari Singh and Umar Ali in his examination in chief.
PW19 Uma Shankar had not identified accused Naushad, Umar Ali and Mohd. Akram in his examination in chief. PW20 Indal has not identified any of the accused persons on 24.05.2016 during his examination in chief. It is subsequently on 25.05.2016 that he identified all the six accused persons which raises doubt as to the identification of accused persons.
7.2 It is further argued that accused Mohd. Afsar has been shown as one of the conspirator in the alleged offence but no specific role has been assigned to him. No material has been placed on record as to how he is connected with the other accused persons. The alleged recovery at his instance is doubtful as the articles were recovered almost after 24 days from the date of commission of offence and that too from an open ground which is frequented by public persons for defecation and animal rearing. The raxine bag allegedly recovered from accused Mohd.
Digitally signed by KIRAN KIRAN GUPTA State Vs. Mohd. Akram & Ors GUPTA Date:
2022.05.05 Page 54 of 8315:55:03 +0530 55 Afsar did not have any specific mark or brand and such bags are easily available in the market, which has also been admitted by the family members of the deceased and various police officials in their testimony.
7.3 It is further argued that the concerned IO did not obtain the signatures of eye witnesses on the pointing out memo prepared at the instance of accused persons despite the fact that they were present on the spot. In fact the IO had taken the signatures of PW8 Sunil, the brother of deceased on the said memos being fully aware that he was not present at the spot on the date of alleged incident. It is submitted that it raises serious doubt as to whether the accused were actually taken to the place of incident or that the same have been manipulated by the IO. It is prayed that since no offence is made out against any of the accused persons, all the accused persons be acquitted in the present case.
FINDINGS AND ANALYSIS OF EVIDENCE
8. Heard ld. APP for the State, ld. Respective Defence counsels and perused the complete record file. The accused persons are facing trial for the offence u/s 120B/396/412 IPC r/w 25/27 Arms Act and in the alternative for the offence u/S 302 /34 IPC.
Digitally
signed by
KIRAN
KIRAN GUPTA
GUPTA Date:
2022.05.05
State Vs. Mohd. Akram & Ors 15:55:08
+0530 Page 55 of 83
56
9. Section 391 IPC explains the offence of `dacoity'. When five or more persons conjointly commit or attempt to commit a robbery, or where the whole number of persons conjointly committing or attempting to commit a robbery, and persons present and aiding such commission and attempt amount to five or more, every person so committing, attempting or aiding, is said to commit `dacoity'. Under Section 392 IPC, the offence of `robbery' simplicitor is punishable with rigorous imprisonment which may extend to ten years or 14 years depending upon the facts of a given case. Section 396 IPC brings within its ambit a murder committed along with `dacoity'. In terms of this provision, if any one of the five or more persons, who are conjointly committing dacoity, commits murder in so committing dacoity, every one of those persons shall be punished with death or imprisonment for life or rigorous imprisonment for a term which may extend to ten years and shall also be liable to fine.
9.1 On a plain reading of these provisions, it is clear that to constitute an offence of `dacoity', robbery essentially should be committed by five or more persons. Similarly, to constitute an offence of `dacoity with murder' any one of the five or more persons should commit a murder while committing the dacoity, then every one of such persons so committing, attempting to Digitally signed by KIRAN KIRAN GUPTA Date:
State Vs. Mohd. Akram & Ors GUPTA 2022.05.05 15:55:14 Page 56 of 83 +0530 57 commit or aiding, by fiction of law, would be deemed to have committed the offence of murder and be liable for punishment provided under these provisions depending upon the facts and circumstances of the case.
CONSPIRACY U/S 120 B IPC
10. In the present case, all the accused persons have been charged with the offence of conspiracy and with the aid of Section 120B IPC, the State has tried to prove that in pursuance of the conspiracy entered into between the accused persons, they committed dacoity with murder of the deceased. The essence of a criminal conspiracy is the unlawful combination and ordinarily the offence is complete when the combination is framed. It is settled law that in the case of conspiracy there cannot be any direct evidence. Privacy and secrecy are more characteristics of a conspiracy, than of a loud discussion in an elevated place open to public view. The ingredients of offence are that there should be an agreement between persons who are alleged to conspire and the said agreement should be for doing an illegal act or for doing by illegal means an act which itself may not be illegal. Therefore, the essence of criminal conspiracy is an agreement to do an illegal act and such an agreement can be proved either by direct evidence or by circumstantial evidence or by both, and it is a matter of common experience that direct evidence to prove Digitally signed by KIRAN KIRAN GUPTA State Vs. Mohd. Akram & Ors GUPTA Date: Page 57 of 83 2022.05.05 15:55:19 +0530 58 conspiracy is rarely available. Therefore, the circumstances proved before, during and after the occurrence have to be considered to decide about the complicity of the accused. The inferences are normally deduced from acts of parties in pursuance of a purpose in common between the conspirators. There must be a meeting of minds resulting in ultimate decision taken by the conspirators regarding the commission of an offence and where the factum of conspiracy is sought to be inferred from circumstances, the prosecution has to show that the circumstances give rise to a conclusive or irresistible inference of an agreement between two or more persons to commit an offence.
11. In the instant case, the prosecution has relied on two pieces of evidence in order to prove the charge of conspiracy against accused persons. Firstly, the disclosure statement of the accused persons and secondly, the recoveries pursuant to the disclosure statements of accused persons. Apart from that, there is no evidence on record to show that the accused persons entered into any agreement to carry out the crime intended by them i.e of committing dacoity and murder.
12. It is a settled principle of law that the disclosure statement of an accused cannot be used against him except that part which leads to any discovery of fact or recovery of any Digitally signed by KIRAN KIRAN GUPTA GUPTA Date:
State Vs. Mohd. Akram & Ors 2022.05.05 15:55:25 Page 58 of 83 +0530 59 incriminating article. A close scrutiny of the disclosure statements of the accused persons, though not admissible, show that their only intention was to rob the victim of money which he was having with him at that time. The other factor regarding the recoveries of certain cash amounts from accused Md. Akram and raxine bag and articles at instance of accused Md. Afsar cannot be a sole criteria to reach to a conclusion that there was a criminal conspiracy amongst all the accused persons.
RECOVERY OF RAXINE BAG AND THE ARTICLES
13. As per the case of prosecution, accused Mohd. Afsar who was arrested in FIR No. 48/11 made disclosure statement regarding his involvement in the present case. He disclosed the name of other accused persons and the manner in which they committed the present offence. At his instance, the raxine bag belonging to the deceased was recovered from his house at B Block, Mange Ram Park and the articles of the bag were recovered from open pit at pooth kalan where the accused Mohd. Afsar as per his disclosure statement had thrown the said articles.
14. The said articles were recovered in the presence of PW21, PW41 and PW38/IO. PW21 and PW41 during their cross- examination admitted the suggestion that the residential locality Digitally signed by KIRAN State Vs. Mohd. Akram & Ors KIRAN GUPTA Page 59 of 83 GUPTA Date:
2022.05.05 15:55:30 +0530 60 situated at B Block, Mange Ram Park is a densely populated area. PW41 deposed that IO had asked the names and addresses of 3-4 persons who were asked to join the investigation but they did not disclose their names. IO did not serve any notice upon them. PW21 deposed that the house of Mohd. Afsar was at ground and first floor. Mother of accused Mohd. Afsar was present in the house. IO had requested her to join the proceedings. Both of them admitted that IO neither prepared the site plan of that spot nor called any respectable person from the neighborhood before conducting the proceedings. PW41 admitted that house was open at that time. They admitted the suggestion that the raxine bag which was recovered in this case is commonly available in the market. They admitted that the pit at pooth kalan area is a public place and general public has access to that place and people urinate as well as defecate in the open plot of land. They deposed that they do not know whether IO had prepared the site plan of the pit area or not. Both of them admitted that public persons gathered at the spot during proceedings. That IO had made request to public persons, but do not know, whether he had given any notice to those public persons, who refused to join investigation. Both of them admitted that all the documents which were recovered at the instance of Mohd. Afsar were counted, however, pagination was not done by the IO. The seal was handed over back by him to IO on the same date after exhibits were deposited with malkhana. No written Digitally signed by KIRAN KIRAN Page 60 of 83 GUPTA State Vs. Mohd. Akram & Ors GUPTA Date:
2022.05.05 15:55:35 +0530 61 acknowledgement / receipt was executed to that effect. He deposed that the documents which were recovered at the instance of Md. Afsar had some soil/ mitti attached to it when they were recovered. Some of the soil was separated from it.
15. Even PW38 during his cross-examination admitted that Mange Ram park is densely populated area. He did not inform the local police upon reaching there. He had not issued any written notice to the public witnesses to join the proceedings. He had not prepared the site plan of the house of accused Afsar. The house was open when they reached there. Mother of accused Afsar was present in the house. He neither took signatures of his mother on any document nor recorded her statement. He admitted that the black colour raxine bags are easily available in the market. He admitted that the vacant piece of land near the house of accused Afsar is used by the residents for defecating purposes. He admitted that it is an open piece of land without any boundary wall.
16. In Ritesh Chakarvarty vs. State of Madhya Pradesh 2006 (3) JCC (Narcotics) 150, the Hon'ble Supreme Court has deprecated the practice of the investigating officials in not enquiring the names of the public persons who failed to join the proceedings on the request of the police officials.
Digitally signed by KIRAN KIRAN GUPTA
GUPTA Date:
2022.05.05
15:55:41 +0530
State Vs. Mohd. Akram & Ors Page 61 of 83
62
17. In two other judgments pronounced in the cases titled as Anup Joshi vs. State 1992 (2) CC cases 314 and Roop Chand vs. State of Haryana 1991 CLR 69, it has been observed by Hon'ble High Court that failure to proceed against the public person who refused to join the investigation, is suggestive of the fact that the explanation for non joining of witnesses from the public is an afterthought and is not worthy of credence. In the absence of any satisfactory and reliable reason forthcoming from the prosecution as to why the public persons were not included in the proceeding even after the apprehension of the accused, the case of the prosecution has become doubtful.
18. From the testimony of PW21, PW41 and PW38, it is evident that they neither joined any public witness at the time of recovery of the raxine bag from the house of accused Mohd. Afsar at Mange Ram Park, nor during the time when the articles of the bag were recovered at his instance from an open pit at pooth kalan. The IO also did not obtain the finger prints of accused Mohd. Afsar to show that he had handed over the bag and the articles to him.
19. As discussed above, it has come up in the testimony of PW8 Sunil and PW10 Sant Kumar that the bag did not have any distinct identification mark or sign. Both these witnesses have admitted that such raxine bags are easily available in the Digitally signed by KIRAN State Vs. Mohd. Akram & Ors KIRAN GUPTA Page 62 of 83 GUPTA Date:
2022.05.05 15:55:47 +0530 63 open market. The ld. APP has vehemently argued that the articles from the open pit were recovered at the instance of accused Mohd. Afsar. As per the seizure memo Ex.PW21/B, the said articles were recovered from an open pit almost after one month of the date of the offence. PW21, PW41 and PW38 have admitted that said open space is used by the general public for defecating, urinating and grazing animals. As discussed above, the concerned IO did not join any of the public persons at the time of recovery of the said articles. The non-joining of the public persons is not only fatal to the case of prosecution but the manner of recovery and the place of recovery of the articles from the open pit and that too after about one month of the incident, raises doubt as to whether they were actually recovered at the instance of accused Mohd. Afsar.
20. Now coming to the recovery of certain currency notes from accused Mohd. Akram. The allegations against accused Mohd. Akram is that Rs. 2,000/- i.e. 4 currency notes in the denomination of Rs. 500/- each were recovered from him which was part of the robbed amount. PW10 Sant Kumar though has deposed that he had withdrawn Rs. 40,000/- from his bank but he did not disclose the exact denomination of the currency notes. The recovery of the said 4 currency notes, by no stretch of imagination proves the offence u/S. 412 IPC against accused Mohd. Akram. It is a settled canon of appreciation of evidence Digitally signed by KIRAN KIRAN GUPTA Date:
GUPTA 2022.05.05 State Vs. Mohd. Akram & Ors 15:55:52 +0530 Page 63 of 83 64
that a presumption cannot be raised against the accused either of fact or of evidence. Equally true is the rule that evidence must be read as it is available on record.
ARREST & IDENTIFICATION OF ACCUSED PERSONS
21. As per the case of prosecution, all the accused persons were arrested in some other FIRs. They disclosed their involvement in the present offence and they were subsequently arrested in the present case. Except accused Ranjeet, all the other accused persons refused for their TIP. The witnesses failed to identify Ranjeet during his TIP. It has come up in the testimony of all the material witnesses i.e. PW-3, PW-7, PW-19 and PW-20 that they had stated to the police the physical description, facial features and clothes worn by the accused persons, however, when they were confronted with their respective statements, the same was not found recorded. All these witnesses during their cross- examination admitted that there is no mention in their statements that they can identify the persons who had committed the offence. PW-7 Naval Kishore who was present alongwith deceased Anil, during his cross examination deposed that police did not ask about the physical description of assailants or type of clothes they were wearing. He deposed that during the 15 days when the police was regularly visiting the factory for investigation, he had not stated physical description of the Digitally signed by KIRAN KIRAN GUPTA State Vs. Mohd. Akram & Ors GUPTA Date:
2022.05.05 Page 64 of 83 15:55:58 +0530 65 accused persons to the police. He admitted that he had not stated physical description of the assailants even in his last statement.
22. In the present case, neither any of the accused persons were arrested from the spot nor the accused persons were known to complainant and other witnesses. The physical characteristic features of the accused persons are not mentioned in the statement of any of the witnesses. The concerned IO has arrested in all seven accused persons. However, PW-7 Naval Kishore deposed that there were 6 persons on the said date. Even PW- 19 Uma Shankar deposed that he saw 4-5 persons climbing the stairs. PW20 Indal deposed that he also saw 6 persons on the date of incident. Hence, the total number of persons/assailants were six and not seven. However, the persons so arrested and chargesheeted are seven in number.
23. It has been vehemently argued by the Ld APP for the State and the ld. Counsel for the complainant that since all the accused persons have been duly identified by the material witnesses, nothing else remains to be proved against them. Per contra, it is argued by the Ld. Respective Defence Counsels that first of all, there are material contradictions on the aspect of identification of each accused by each of the witness. Secondly, except the identification of the accused persons for the first time in the Court, there is no other corroborating evidence led by Digitally signed by KIRAN KIRAN GUPTA Date:
State Vs. Mohd. Akram & Ors GUPTA Page 65 of 832022.05.05 15:56:05 +0530 66 prosecution to prove the alleged offenses against any of the accused persons.
24. The law with respect to the identification of the accused persons for the first time in the court is very clear and is discussed as under for ready reference:
25. In case titled as Dana Yadav @ Dahu & others Vs. State of Bihar (2002), it has been held by the Hon'ble Supreme- Court of India that:-
" Section 9 of the Evidence Act deals with relevancy of acts necessary to explain or introduce relevant facts. It says, inter alia, that facts which establish the identity of any thing or person whose identity is relevant, in so far as they are necessary for the purpose, are relevant. So the evidence of identification is a relevant piece of evidence under Section 9 of the Evidence Act where the evidence consists of identification of the accused at his trial. The identification of an accused by a witness in court is substantive evidence, whereas evidence of identification in a test identification parade is, though primary evidence, but not substantive one, and the same can be used only to corroborate the identification of the accused by a witness in court, it being governed essentially by the provision of Section 162 Cr.P.C.
25.1. In Vaikuntam Chandmppa and Ors. v. State of Digitally signed by KIRAN KIRAN Page 66 of 83 GUPTA State Vs. Mohd. Akram & Ors GUPTA Date:
2022.05.05 15:56:10 +0530 67 Andhra Pradesh, [AIR 1960 SC 1340] the Honble Supreme Court observed that the substantive evidence of a witness is his statement in court, but the purpose of test identification is to test that evidence, and the safe rule is that the sworn testimony of witnesses in court as to the identity of the accused who are stranger to the witnesses, generally speaking, requires corroboration which should be in the form of an earlier identification proceeding, or any other evidence. The law laid down in the aforesaid decision has been reiterated by the Honble Supreme Court in [Budhsen and Anr. v. State of U.P., (1970 2 SCC 128), Sheikh Hasib alias Tabarak v. The State of Bihar, (1972 4 SCC 773), Bollavaram Pedda Narsi Reddy and Ors. v. State of Andhra Pradesh, (1991 3 SCC 434), Ronny alias Ronald James Alwaris and Ors. v. State of Maharashtra, (1998 3 SCC
625) and Rajesh Govind Jagesha v. State of Maharashtra, (1999 8 SCC 428)].
25.2. Hon'ble Supreme Court in its case titled as Raja Vs. State By the Inspector of Police in Crl. Appeal No. 740 of 2018 has stated that, "It has been accepted by this Court that what is substantive piece of evidence of identification of an accused, is the evidence given during the trial. However, by the time the witnesses normally step into the box to depose, there would be substantial time gap between the date of the incident and the actual examination of the witnesses. If the accused or the Digitally signed by KIRAN State Vs. Mohd. Akram & Ors KIRAN GUPTA Page 67 of 83 GUPTA Date:
2022.05.05 15:56:18 +0530 68 suspects were known to the witnesses from before and their identity was never in doubt, the lapse of time may not qualitatively affect the evidence about identification of such accused, but the difficulty may arise if the accused were unknown. In such cases, the question may arise about the correctness of the identification by the witnesses. The lapse of time between the stage when the witnesses had seen the accused during occurrence and the actual examination of the witnesses may be such that the identification by the witnesses for the first time in the box may be difficult for the court to place complete reliance on. In order to lend assurance that the witnesses had, in fact, identified the accused or suspects at the first available opportunity, the TIP which is part of the investigation affords a platform to lend corroboration to the ultimate statements made by the witnesses before the Court. However, what weightage must be given to such TIP is a matter to be considered in the facts and circumstances of each case".
26. Thus, it is well settled that identification parades are held ordinarily at the instance of the investigating officer for the purpose of enabling the witnesses to identify either the properties which are the subject matter of alleged offence, or the persons who are alleged to have been involved in the offence. Such tests or parades, in ordinary course, belong to the investigation stage and they serve to provide the investigating authorities with Digitally signed by KIRAN KIRAN GUPTA State Vs. Mohd. Akram & Ors GUPTA Date:
2022.05.05 Page 68 of 8315:56:24 +0530 69 material to assure themselves if the investigation is proceeding in the right direction. In other words, it is through these identification parades that the investigating agency is required to ascertain whether the persons whom they suspect to have committed the offence were the real culprits. (Reliance placed on decisions of Hon'ble Supreme Court in [Rameshwar Singh v. State of Jammu & Kashmir (1972 l SCR 627) and Ravindra alias Ravi Bansi Gohar v. State of Maharashtra and Ors., (1998 6 SCC 609).
27. It is a rule of prudence that ordinarily, identification of an accused for the first time in court by a witness should not be relied upon, the same being from its very nature, inherently of a weak character, unless it is corroborated by his previous Identification in the test identification parade or any other evidence. The purpose of test identification parade is to test the observation, grasp, memory, capacity to recapitulate what a witness has seen earlier, strength or trustworthiness of the evidence of identification of an accused, and to ascertain if it can be used as reliable corroborative evidence of the witness identifying the accused at his trial in the court. If a witness identifies the accused in the court for the first time, the probative value of such uncorroborated evidence becomes minimal so much so that it becomes, as a rule of prudence and not law, unsafe to rely on such a piece of evidence. Judgment of Hon'ble Digitally signed by KIRAN State Vs. Mohd. Akram & Ors KIRAN GUPTA Page 69 of 83 GUPTA Date:
2022.05.05 15:56:30 +0530 70 Supreme Court in [ State of Maharashtra v. Sukhdev Singh and Anr., (1992 3 SCC 700), Jaspal Singh alias Pali v. State of Punjab, (1997 l SCC 510), Raju alias Rajendra v. State of Maharashtra, (1998 l SCC 169), George and Ors. v. State of Kerala and Anr., (1998 4 SCC 605), (2000 l SCC 247) and Ramanbhai Naranbhai Patel and Ors. v. State of Gujarat, (2000 l SCC 358) relied upon].
28. Apart from the ordinary rule laid down in the aforesaid decisions, certain exceptions to the same have been carved out, where identification of an accused for the first time in court without there being any corroboration whatsoever, can form the sole basis for his conviction. In the case of Ronny alias Ronald James Alwaris and Ors. v. State of Maharashtra, (1998 3 SCC 625), it has been laid down that where the witness had a chance to interact with the accused, or that in a case where the witness had an opportunity to notice the distinctive features of the accused, which lends assurance to his testimony in court, the evidence of identification in court for the first time by such a witness cannot be thrown away merely because no test Identification parade was held. In that case, the concerned accused had a talk with the identifying witnesses for about 7/8 minutes. In these circumstances, the conviction of the accused, on the basis of sworn testimony of witnesses identifying for the first time in court, without the same being corroborated either by Digitally signed by KIRAN KIRAN Page 70 of 83 GUPTA State Vs. Mohd. Akram & Ors GUPTA Date:
2022.05.05 15:56:35 +0530 71 previous identification in the test identification parade or any other evidence, was upheld by this Court.
28.1. In the case of Rajesh Govind Jagesha v. State of Maharashtra, (1999 8 SCC 428), it was laid down that the absence of test identification parade may not be fatal if the accused is sufficiently described in the complaint leaving no doubt in the mind of the court regarding his involvement or is arrested on the spot immediately after the occurrence and in either eventuality, the evidence of witnesses identifying the accused for the first time in court can form the basis for conviction without the same being corroborated by any other evidence and, accordingly, conviction of the accused was upheld by this Court.
28.2. In the case of Ramanbhai Naranbhai Patel and Ors. v. State of Gujarat, (2000 l SCC 358), it was observed "It, therefore, cannot be held, as tried to be submitted by learned counsel for the appellants, that in the absence of a test identification parade, the evidence of an eyewitness identifying the accused would become inadmissible or totally useless;
whether the evidence deserves any credence or not, would always depend on the facts and circumstances of each case." The Court further observed - "The fact remains that these eyewitnesses were seriously injured and they could have easily Digitally signed by KIRAN KIRAN GUPTA State Vs. Mohd. Akram & Ors GUPTA Date:
2022.05.05 15:56:41 +0530 Page 71 of 83 72 seen the faces of the persons assaulting them and their appearance and identity would well remain imprinted in their minds, especially when they were assaulted in broad day light." In these circumstances, conviction of the accused was upheld on the basis of solitary evidence of identification by a witness for the first time in court".
29. Now coming to the arrest and identification of each accused person.
ACCUSED RANJEET @ BIHARI
30. The accused Ranjeet was arrested on 02.06.2011 in FIR No.113/11 PS North Rohini. On the basis of his disclosure statement, he was arrested in the present case on 04.06.2011. As per the case of prosecution, PW Nawal Kishor, Meghraj, Uma Shankar and Indal joined TIP proceedings of accused Ranjeet at Rohini Jail. As per the TIP proceedings Ex.PW7/A, PW7 Nawal Kishore, PW 3 Megraj, PW19 Umashankar and PW20 Indal failed to identify accused Ranjeet. However, PW 3 Meghraj and PW7 Nawal Kishore, during their testimony in the court, identified accused Ranjeet as the person who had fired on Anil. PW19 Umashankar identified him as the one who had come in the factory on 29.01.2011 and killed Anil Kumar. PW20 identified him as the person who was having country made pistol Digitally State Vs. Mohd. Akram & Ors signed by Page 72 of 83 KIRAN KIRAN GUPTA Date:
GUPTA 2022.05.05
15:56:47
+0530
73
in his hand on said date.
30.1. PW 7 and PW20 further deposed that while they were waiting outside for TIP at Rohini Jail, accused Mohd. Afsar threatened them not to identify by making threatening gestures. They got frightened and could not identify accused Ranjeet. During their cross-examination, they admitted that they did not inform the concerned Judicial Officer about the threats extended by accused Md. Afsar. In this regard, prosecution has examined PW 45 HC Ravinder. He deposed that he took accused Md. Afsar high risk inmate wrongly to Rohini Jail and thereafter, he was taken to Central Jail, Tihar Jail. Though PW45 HC Ravinder has deposed that he took Md. Afsar to Rohini Jail, the prosecution has not placed on record any document to prove the same. In fact PW45 during his cross-examination admitted that high Risk inmates are taken in separate van. It has remained unexplained that PW45 on the mere asking of the accused Mohd. Afsar who is a high risk accused took him to wrong jail without even considering his custody warrants wherein everything is specifically stated especially in the cases of high risk prisoners. \ 30.2. As discussed above, none of the witnesses identified accused Ranjeet during TIP proceedings. Except his identification for the first time in court, there is nothing incriminating against him in the entire record file.
Digitally signed by KIRAN KIRAN GUPTA
State Vs. Mohd. Akram & Ors GUPTA Date:
2022.05.05
15:57:00 +0530
Page 73 of 83
74
ACCUSED MOHD. AKRAM
31. The accused Md. Akram was arrested by Special Staff on 21.02.2011 and on his disclosure statement, he was arrested in the present case subsequently. PW3 Meghraj identified him as one of the persons who gave beatings to Naval Kishore. However, PW 7 Naval Kishore did not depose that Mohd. Akram is the person who gave beatings to him. There is contradiction in the testimony of both these witnesses on this aspect. PW19 Uma Shankar and PW20 Indal neither identified him nor attributed any role to him.
ACCUSED NEERAJ
32. The accused Neeraj was arrested on 04.06.2011. As per prosecution, he was identified by witnesess while they had come to Rohini court for pervi of case on 16.08.2011. PW3 and PW7 identified him as the person who had hit PW7 on his face. On the contrary, PW19 Uma Shankar identified him as the one who had come in the factory on 29.01.2011 and killed Anil Kumar. He also deposed that he had taken away the bag from the cabin of Anil. PW20 Indal identified him as the one who was having knife in his hand. PW 19 during his cross-examination deposed that he had not seen accused Neeraj during the course of Digitally signed by KIRAN KIRAN GUPTA State Vs. Mohd. Akram & Ors GUPTA Date: Page 74 of 83 2022.05.05 15:57:07 +0530 75 the investigation. He had seen him only in court during his examination in chief after the date of incident.
ACCUSED MOHD. AFSAR
33. PW 7 Naval Kishore identified accused Md. Afsar as the person who was present just outside the office of Anil. PW7 and PW20 identified him as the person who threatened them in jail when they went for TIP of accused Ranjeet.
ACCUSED NAUSHAD, HARI SINGH AND UMAR ALI
34. As per the case of prosecution, four accused persons namely Naushad, Hari Singh, Akram and Umar Ali were taken by the police to the place of incident i.e the factory on 05.03.2011 and pointing out memos Ex.PW8/A to Ex.PW8/C were prepared at their instance. It has come up in the testimony of PW21 that while pointing out the spot, one witness Sunil was present in the factory. His signatures were also obtained on the pointing out memo and his statement was recorded by the IO. PW38/ IO made enquiries from two other witnesses namely Uma Shankar and Naval Kishore who were present in the factory and recorded their statements u/S 161 Cr.P.C. Both of them identified the accused persons. It has remained unexplained as to why the signatures of Uma Shankar and Naval Kishore were not taken on the pointing Digitally signed by KIRAN KIRAN GUPTA State Vs. Mohd. Akram & Ors GUPTA Date:
2022.05.05 Page 75 of 8315:57:31 +0530 76 out memo, despite the fact that they were present at that time and had identified these accused persons.
34.1. Since, accused Naushad, Hari Singh, Mohd. Akram and Umar Ali were taken to the place of incident on 05.03.2011, thus, after the incident dated 29.01.2011, PW7 Naval Kishore and PW19 Uma Shankar had the occasion to see and identify these accused persons on 05.03.2011 after the date of incident.
However, PW7 Naval Kishore identified them as accused Mohd. Akram, Neeraj, Ranjeet and Naushad. He failed to identify Umar Ali. PW19 Uma Shankar identified them as accused Ranjeet, Hari Singh and Neeraj.
34.2. Thus, PW19 despite identifying accused Naushad on 05.03.2011 failed to identify him as the person produced on 05.03.2011 during his deposition in the Court. They wrongly identified some other accused persons during their testimony in the Court as the persons who were produced on 05.03.2011. Further, PW7 and PW19 also failed to identify accused Umar Ali. None of the remaining witnesses have described any specific role of accused Umar Ali. From the testimony of PW7 and PW19, it is evident that they had identified some other accused persons in the Court as the persons to whom they had identified before the police officials on 05.03.2011.
Digitally
signed by
KIRAN KIRAN GUPTA
Date:
State Vs. Mohd. Akram & Ors GUPTA 2022.05.05
15:57:38 Page 76 of 83
+0530
77
FINGER PRINTS, FSL AND BALLISTIC REPORT
35. Now coming to the finger print report. PW13 SI Sushil Kumar has deposed that he was posted as finger print expert, Crime Team, North West, Delhi. On 29.01.2011, he alongwith the crime team, reached the spot, developed and lifted the chance prints which were found on the table top glass as Mark Q1 and Q2 which were sent to Delhi Finger Print Beaure for analysis and record. On 17.08.2011, he was transferred to Delhi HQ Finger Print Beaure. He received comparison of chance prints alongwith the developed finger prints. He examined the same and found that the chance prints Q1 and Q2 are not identical with available portions of the finger prints of the person namely Neeraj and Ranjeet. He submitted the photocopy of his report alongwith memorandum as Ex.PW13/A and Ex.PW13/B respectively.
36. As per the FSL Ballistic report Ex. PW 44/A, which is with respect to 8 mm / .315" cartridge case marked Ex.EC1 and one bullet mark Ex.EB1. As per the result of examination, it is stated that 8 mm/315" cartridge case is fired empty cartridge and the bullet marked EB1 corresponds to the bullet of 8 mm/315" cartridge. The individual characteristics of firing pin marks and breech face marks present on evidence cartridges mark EC1 and on test fired cartridge cases mark TC1 and TC2 in Digitally signed by KIRAN KIRAN GUPTA State Vs. Mohd. Akram & Ors GUPTA Date:
2022.05.05 Page 77 of 8315:57:44 +0530 78 case FIR no.113/11 PS North Rohini were compared and examined and under Comparison Microscope Model Leica DMC, they were not found identical. It is stated that hence the Ex. EC1 has not been fired through the country made pistol .315"
bore mark F1 in case FIR no.113/11 PS North Rohini. ( FSL
-2011/F-4853).
36.1 It is further stated that individual characteristics of marks present on evidence cartridge case mark Ex.EC1 are insufficient for comparison and opinion whether it has been fired through the country made pistol .315" bore mark Ex.F1 in case FIR no.26/11 PS Ashok Vihar ( FSL -2011/F-5968) or not.
36.2 The individual characteristics of striations marks present on evidence bullet 8mm / .0315" mark EB1 are insufficient for comparison and opinion whether it has been fired through the country made pistol .315" bore mark F1 in case FIR no.113/15 PS North Rohini ( FSL -2011/F-4853) and the country made pistol .315" bore in case FIR 26/11 PS Ashok Vihar ( FSL
-2011/F-5968) or not.
37. As per the ballistic report Ex.PW44/B with respect to one country made pistol .315 " bore marked Ex.F1 in FIR no.49/11 PS Maurya Enclave (FSL-2011/F-1083) and two 8 mm / .315 -test fired improvised cartridge cases mark Ex.A1 and A2 in Digitally signed by KIRAN State Vs. Mohd. Akram & Ors KIRAN GUPTA Page 78 of 83 GUPTA Date:
2022.05.05 15:57:50 +0530 79 FIR no.49/11 PS Maurya Enclave (FSL-2011/F-1083), it is stated as under:
" Four 8 mm/315" cartridges from lab stock were test fired through the country made pistol. .315" bore already marked as 'F1' in case FIR no.49/11, PS Maurya Enclave (FSL-2011/F- 1083). The test fired cartridge cases were marked as 'TC3' to 'TC6' and the recovered bullets were marked 'TB3' to 'TB6'."
CONCLUSION
38. From the above discussion, it is evident that none of the accused persons were arrested from the spot. The accused persons were arrested in the present case on the basis of their disclosure statements which were recorded during the custody of the police and nothing incriminating has been recovered, so, the disclosure statements of the accused are inadmissible. The investigating officers have failed to recover the weapon used in the commission of the offence. The weapons recovered during investigation are not the weapon of offence. The accused persons were neither known to the complainant nor the other witnesses and the witnesses had the occasion to see many of the accused persons for the first time during their testimony in the court after the date of incident. None of the witnesses had disclosed any distinctive feature of any of the Digitally signed by KIRAN KIRAN GUPTA Date:
State Vs. Mohd. Akram & Ors GUPTA 2022.05.05 15:57:56 Page 79 of 83 +0530 80 accused persons in their statements. In their entire statements u/S. 161 Cr.P.C, there is no mention of physical description, facial features or the clothes worn by the accused persons, leave aside any distinctive features. All the witnesses categorically admitted during their cross examination that there is no mention in their statements that they can identify the accused persons, who had committed the offence.
39. All the material witnesses failed to identify accused Ranjeet during his TIP proceedings. Interestingly, when they were threatened outside the Rohini Jail where accused Mohd. Afsar was mistakenly taken by the Jail Van, they neither disclosed about the said threats to any of the police officials, to the IO, to the Jail Superintendent and the concerned Metropolitan Magistrate who was present there for the TIP at that time. Further, these witnesses wrongly identified some other accused persons in the court as the persons whom they had identified before the police officials on 05.03.2011.
40. The chance prints/ finger prints lifted from the table top of the spot did not match with the finger prints of accused Neeraj and Ranjeet. As per the ballistic report Ex PW44/A, 8 mm / .315" cartridge case marked Ex.EC1 has not been fired through the country made pistol .315" bore mark F1 in case FIR no.113/11 PS North Rohini ( FSL -2011/F-4853).
Digitally signed by KIRAN KIRAN GUPTA Page 80 of 83 Date:
State Vs. Mohd. Akram & Ors GUPTA 2022.05.05 15:58:36 +0530 81
41. The interval of time in which the entire offence of robbery and murder allegedly happened, and the nature of interaction of the witnesses namely PW3 Meghraj, PW7 Naval Kishore, PW19 Uma Shankar and PW20 Indal had with the accused persons was for a very short duration. Thus, it is clear in view of the above discussion, specially the testimony of these witnesses, much evidentiary value cannot be attached to the sole identification of the accused persons in the court where identifying witnesses are total stranger who had just a fleeting glimse of the persons identified in the absence of any corroboration. In view of the contradictions in the testimony of the witnesses and in the absence of any corroboration by any other evidence, the identification of the accused persons for the first time in the court does not form the basis for conviction.
42. In Datar Singh v. State of Punjab (1975) 4 SCC 272, the Supreme Court reminded: "It is often difficult for Courts of law to arrive at the real truth in criminal cases. The judicial process can only operate on the firm foundations of actual and credible evidence on record. Mere suspicion or suspicious circumstances cannot relieve the prosecution of its primary duty of proving its case against an accused person beyond reasonable doubt. Courts of justice cannot be swayed by sentiment or prejudice against a person accused of the very Digitally signed by KIRAN KIRAN Page 81 of 83 GUPTA State Vs. Mohd. Akram & Ors GUPTA Date:
2022.05.05 15:58:42 +0530 82 reprehensible crime, of patricide. They cannot even act on some conviction that an accused person has committed a crime unless his offence is proved by satisfactory evidence of it on record. If the pieces of evidence on which the prosecution choses to rest its case are so brittle that they crumble when subjected to close and critical examination so that the whole super- structure built on such insecure foundations collapses, proof of some incriminating circumstances, which might have given support to merely defective evidence cannot avert a failure of the prosecution case."
43. In the case titled as Jose v. The Sub Inspector of Police, Koyilandy and Ors.: (2016) 10 SCC 519, the Apex Court has held as under: "53. It is a trite proposition of law, that suspicion however grave, it cannot take the place of proof and that the prosecution in order to succeed on a criminal charge cannot afford to lodge its case in the realm of "may be true" but has to essentially elevate it to the grade of "must be true". In a criminal prosecution, the court has a duty to ensure that mere conjectures or suspicion do not take the place of legal proof and in a situation where a reasonable doubt is entertained in the backdrop of the evidence available, to prevent miscarriage of justice, benefit of doubt is to be extended to the accused. Such a doubt essentially has to be reasonable and not imaginary, fanciful, intangible or non- existent but as entertainable by an impartial prudent and analytical mind, judged on the touch stone Digitally Page 82 of 83 signed by State Vs. Mohd. Akram & Ors KIRAN KIRAN GUPTA Date:
GUPTA 2022.05.05 15:58:49 +0530 83 of reason and common sense. It is also a primary postulation in criminal jurisprudence that if two views are possible on the evidence available, one pointing to the guilt of the accused and the other to his innocence, the one favorable to the accused ought to be adopted".
44. Hence, in view of the above discussion, all the accused persons are acquitted of the charges framed against them. They are directed to furnish bail bonds in a sum of Rs.10,000/ each with one surety of like amount each for a period of six months to ensure their attendance and appearance before the Ld. Appellate Court, as per provision of Section 437A of Cr.PC.
The case properties are ordered to be disposed off after expiry of statutory period of filing of the appeal, as per law.
File be consigned to the Record Room on furnishing of the bail bonds / surety bonds under Section 437A of Cr.P.C.
Digitally
signed by
KIRAN
KIRAN GUPTA
GUPTA Date:
2022.05.05
15:58:56
+0530
ANNOUNCED IN THE OPEN (KIRAN GUPTA)
COURT ON 05.05.2022 ADDITIONAL SESSIONS JUDGE-03
NORTH WEST DISTRICT
ROHINI COURTS, DELHI
State Vs. Mohd. Akram & Ors Page 83 of 83