Delhi District Court
State vs . (1) Amit Kumar @ Resham on 29 November, 2014
FIR No. 455/13; U/s 392/397/34 IPC; P.S. Adarsh Nagar & Sec. 25 Arms Act D.O.D. 29.11.2014 IN THE COURT OF SHRI VIDYA PRAKASH: ADDL. SESSIONS JUDGE04 (NORTH): ROHINI COURTS: DELHI Session Case No. 235/14 Unique Case ID No. 02404R0221842009 State Vs. (1) Amit Kumar @ Resham S/o Sh. Beer Singh R/o B2/27, Saboli Extn., Harsh Vihar, Delhi. (2) Aman Sharma S/o Sh. Ram Babu Sharma R/o H. No. 318, Gali No.12, Mandoli Extn. Harsh Vihar, Delhi. (3) Ved Prakash @ Kalu S/o Sh. Phool Singh R/o H. No. 42, Gali No. 2, Sushila Garden, Mandoli, Delhi. FIR No. : 455/13 Police Station : Adarsh Nagar Under Sections : 392/397/34 IPC & Section 25 Arms Act Date of committal to Sessions Court: 24.07.2014 Date on which judgment was reserved: 29.11.2014 Date on which Judgment pronounced: 29.11.2014 JUDGMENT
The accused had been sent to face trial in respect of offences U/s 392/397/34 IPC and Section 25 Arms Act on the allegations that on State V/s Amit Kumar @ Resham etc. ("Acquitted") Page 1 of 14 FIR No. 455/13; U/s 392/397/34 IPC; P.S. Adarsh Nagar & Sec. 25 Arms Act D.O.D. 29.11.2014 31.12.2013 at about 8.35 pm at Azadpur Fly Over, Near Gurudwara, Gopal Nagar, Azad Pur, Delhi falling within the jurisdiction of PS Adarsh Nagar, all the three accused persons in furtherance of their common intention alongwith their another associate (not arrested), committed robbery upon complainant Hriday Narain and his friend namely Ram Prakash Gupta by robbing them of motorcycle bearing no. DL10SA3325 make Discover alongwith its R.C. and insurance besides cash amount of Rs. 95,000/ available in the dickey of said motorcycle and driving licence of complainant, at the point of revolver.
The case of prosecution as mentioned in the chargesheet, is that on receipt of DD no. 82B on 31.12.2013 at PS Adarsh Nagar, ASI Jolen Dahanga alongwith Ct. Mukesh went to the place of information where complainant Hriday Narain met and gave statement that while he alongwith his friend Ram Prakash Gupta were going on motorcycle bearing no. DL10SA3325 and reached near Azadpur Fly Over at about 8.35 pm, two boys came on one motorcycle and committed robbery of the valuable articles including motorcycle, cash amount of Rs. 95,000/, etc., at the point of revolver.
It is also mentioned in the chargesheet that FIR was registered and investigation was entrusted to ASI Jolen Dahanga on which he prepared site plan of the place of occurrence and made search for the offenders. On 02.01.2014, the robbed motorcycle was seized U/s 102 Cr.P.C. by SI Praveen Kumar from Kewal Park, Mukundpur Road. On 14.02.2014, two of the accused namely Amit Kumar @ Resham and Aman Sharma were apprehended U/s 41.1(A) Cr.P.C. by Crime Branch vide DD No. 24 and the State V/s Amit Kumar @ Resham etc. ("Acquitted") Page 2 of 14 FIR No. 455/13; U/s 392/397/34 IPC; P.S. Adarsh Nagar & Sec. 25 Arms Act D.O.D. 29.11.2014 said two accused made confessional statements regarding their involvement in the present case on which information was received in PS Adarsh Nagar and consequently, both the said accused persons were formally arrested in this case. It is claimed in the chargesheet that both the said accused persons refused to participate in judicial TIP on 19.02.2014.
It is alleged that on 12.03.2014, third accused namely Ved Prakash @ Kalu surrendered himself in the Court and he was arrested in this case. During his disclosure statement, said accused confessed that he could get the weapon of offence used in the commission of robbery, recovered. He also refused to participate in judicial TIP and during police custody remand, said accused got recovered one loaded countrymade pistol from his house. After conducting relevant proceedings in respect of said arm and ammunition, they were seized in this case.
The aforesaid arm and ammunition were sent to FSL, Rohini and after receipt of FSL result, requisite sanction U/s 39 Arms Act was obtained and filed before the Court. After completion of investigation, chargesheet had been filed before the Court.
After compliance of section 207 Cr.P.C., the case was committed to the Court of Sessions and was assigned to this Court.
After hearing arguments on the point of charge, this Court was pleased to frame the charges u/s 392/34 IPC against all the three accused persons and separate charge in respect of offence U/s 397 IPC against accused Amit Kumar @ Resham and in respect of offence U/s 25 Arms Act against accused Ved Prakash @ Kalu, vide order dated 20.08.2014 to which three State V/s Amit Kumar @ Resham etc. ("Acquitted") Page 3 of 14 FIR No. 455/13; U/s 392/397/34 IPC; P.S. Adarsh Nagar & Sec. 25 Arms Act D.O.D. 29.11.2014 accused pleaded not guilty and claimed trial.
In support of its case, prosecution examined six witnesses namely PW1 Ct. Mukesh, PW2 Inspector Praveen Kumar, PW3 Sh. Ram Parkash, PW4 Sh. Hriday Narain, PW4 ASI Jolen Dahanga and PW6 Ct. Rahul till 29.11.2014.
It may be mentioned here that accused persons made joint statement during trial on 29.11.14 that they were not disputing the contents of FSL result Ex. PY, Sanction U/s 39 Arms Act Ex PZ, contents of their judicial TIP conducted during investigation, factum of arrest of accused Amit Kumar @ Resham and Aman Sharma vide kalandara U/s 41.1 Cr.PC and recovery of motorcycle lying as abandoned by SI Parveen Kumar in the presence of Ct. Satbir Singh and the relevant entries of register no. 19 made by MHC(M) as also the factum of the aforesaid motorcycle being owned by the complainant.
It may also be mentioned here that on 29.11.14, Ld Additional PP dropped PWs namely Ct. Sandeep, Sh. Sunil Kumar the then Ld MM Rohini Court, Sh. Sachin Gupta, Ld MM Rohini Court, Dr. N.P Waghmare Ballistic Expert, Dr. Deotosh K.S Singh Additional DCPII, HC Jugnu, HC Raj Kumar, SI Atul Tyagi, SI Parveen Kumar, Ct. Satbir Singh, MHC(M) PS Adarsh Nagar and Record Clerk of Transport Authority, Surajmal Vihar from the list of witnesses as the relevant facts/documents to be proved by aforesaid witnesses, had been admitted by accused persons vide their joint statement made on 29.11.14 during trial.
Considering the fact that none of the star witnesses relied by the prosecution in the present case, had supported the prosecution story on State V/s Amit Kumar @ Resham etc. ("Acquitted") Page 4 of 14 FIR No. 455/13; U/s 392/397/34 IPC; P.S. Adarsh Nagar & Sec. 25 Arms Act D.O.D. 29.11.2014 material point, prosecution evidence has been closed as no useful purpose would have been served in examining the remaining prosecution witnesses as none of them was undisputedly present at the time of incident in question. Thus, it would have been an exercise in futility in examining those prosecution witnesses besides wastage of precious time of the Court.
Thereafter, statements U/s 313 Cr.P.C. of all the aforesaid three accused persons were recorded during which all the incriminating evidence which came on record, were put to them which they denied. All the said accused persons claimed that they are innocent and have been falsely implicated in this case. However, all the said accused persons opted not to lead any evidence towards their defence.
I have heard Sh. Pankaj Bhatia, Ld. Addl. PP on behalf of State and Ld. defence counsels on behalf of accused persons. I have also gone through the material available on record.
Before discussing the rival submissions made on behalf of both the sides, it would be appropriate to discuss, in brief, the testimonies of prosecution witnesses which have come on record. The said testimonies are detailed as under: PUBLIC WITNESSES: PW3 Sh. Ram Prakash Gupta: He is the victim/eye witness as per the case of prosecution. He supported the case of prosecution to the extent of incident of robbery of cash amount of Rs. 95,000/ and motorcycle no. DL10SA 3325 being committed by two offenders at the point of revolver. State V/s Amit Kumar @ Resham etc. ("Acquitted") Page 5 of 14 FIR No. 455/13; U/s 392/397/34 IPC; P.S. Adarsh Nagar & Sec. 25 Arms Act D.O.D. 29.11.2014 However, he has not supported the case of prosecution on the aspect of identity of accused herein to be the offenders involved in the commission of said offences.
This witness deposed that the accused present in the Court, were not amongst the offenders. He further deposed that robbed motorcycle belonging to Sh Hirday Narain(PW4),had been recovered by police as lying abandoned.
He deposed that he cannot identify the weapon which was used by the offenders at the time of committing robbery against him as he was not in a position to see the said weapon properly due to fear as also due to darkness.
This witness was cross examined by Ld Additional PP as he was not supporting the case of prosecution on the point of identity of accused persons. During said cross examination, the witness denied to have made supplementary statements dt. 20.02.14 and 21.3.14 mark P3 and mark P4 respectively, before the police. He also denied the relevant suggestions put to him on the lines of prosecution story. His attention was also drawn towards accused persons but still he reiterated that accused were not the offenders who had committed robbery against them. Not only this, he also denied that accused Ved Parkash @ Kalu had shown revolver to them at the time of committing robbery. He also did not identify country made pistol shown to him during trial.
This witness has not been cross examined by accused persons despite grant of opportunity.
State V/s Amit Kumar @ Resham etc. ("Acquitted") Page 6 of 14 FIR No. 455/13; U/s 392/397/34 IPC; P.S. Adarsh Nagar & Sec. 25 Arms Act D.O.D. 29.11.2014 PW4 Sh. Hriday Narain: He is the complainant in this case. However, he has also not supported the case of prosecution on the aspect of identity of accused herein to be the offenders involved in the commission of offences of this case. He also testified that accused herein were not the offenders and he was informed by the police that his robbed motorcycle had been recovered as lying abandoned.
This witness was also cross examined by Ld Additional PP during which he also denied to have made supplementary statements dt. 20.02.14 and 21.03.14 mark P4/1 and mark P4/2, before the police. He also reiterated that accused persons shown to him during trial, were not the offenders who had committed robbery against them. He also did not identify country made pistol shown to him during trial.
This witness has not been cross examined by accused persons despite grant of opportunity.
POLICE WITNESSES: PW1 Ct. Mukesh and PW5 ASI Jolen Dahanga: As per the prosecution story, these two witnesses went to the place of information on receipt of DD no. 82B on 31.12.13.
They deposed that when they reached the place of information, complainant Sh Hirday Narain met them and made statement Ex PW4/A on the basis of which, PW5 prepared rukka Ex PW5/A and got the FIR registered through PW1.
PW5 further deposed that he had prepared site plan Ex PW5/A State V/s Amit Kumar @ Resham etc. ("Acquitted") Page 7 of 14 FIR No. 455/13; U/s 392/397/34 IPC; P.S. Adarsh Nagar & Sec. 25 Arms Act D.O.D. 29.11.2014 at the pointing out of complainant and made efforts for search of case property and of offenders but could not succeed.
He further deposed that on 02.01.14, robbed motorcycle no. DL10SA 3325 was recovered as lying abandoned by SI Parveen Kumar vide DD no. 28A of PS Adarsh Nagar.
PW5 further deposed that on 15.02.14, intimation was received in PS Adarsh Nagar vide DD no. 10A Ex PW5/E from SI Atul Tyagi of Crime Branch regarding arrest of accused Amit Kumar @ Resham and Aman Sharma vide kalandara U/s 41.1 Cr.PC wherein both of them had confessed their involvement in the commission of this case. Accordingly, he got both the said accused formally arrested in the Court on 17.02.14 and moved application for conducting their TIP on 19.02.14 but both of them refused to join TIP vide TIP proceedings Ex PW5/K. He further deposed that on 12.03.14, accused Ved Parkash @ Kalu surrendered himself before the Court and was arrested vide memo Ex PW5/L. Said accused also refused to participate in judicial TIP vide proceedings Ex PW5/M1. He further deposed that accused Ved Parkash @ Kalu got one country made pistol recovered from his residential house no. 42, gali no. 2, Sushila Garden, Mandoli, Delhi in the presence of Ct. Rahul(PW6) and Ct. Sandeep. He also deposed about the relevant proceedings carried out by him concerning said country made pistol.
PW5 further deposed that he got the pullanda of country made pistol deposited in FSL Rohini and thereafter, he collected FSL result Ex PY and also obtained sanction U/s 39 Arms Act Ex PZ from Additional DCPII, State V/s Amit Kumar @ Resham etc. ("Acquitted") Page 8 of 14 FIR No. 455/13; U/s 392/397/34 IPC; P.S. Adarsh Nagar & Sec. 25 Arms Act D.O.D. 29.11.2014 N/W District, Delhi.
Both these witnesses have been cross examined on behalf of accused persons.
PW2 Inspector Praveen Kumar: He is the formal witness who had issued Certificate U/s 65B of Indian Evidence Act about registration of FIR in question, being posted as SHO PS Adarsh Nagar. He proved the said Certificate as Ex PW2/A. This witness has not been cross examined by accused persons despite grant of opportunity.
PW6 Ct. Rahul: This witness had joined investigation of this case with IO ASI Jolen Dahanga(PW5) on 22.03.14. He deposed that accused Ved Parkash @ Kalu had got recovered one country made pistol from his residential house in his presence and confessed that said weapon was used in the commission of offence of this case. He also deposed about the writing work carried out by IO concerning said pistol, at the spot.
He has been cross examined at length on behalf of accused persons.
ARGUMENTS ADVANCED & CASE LAW CITED It has been argued by Ld Additional PP that both the public witnesses i.e PW3 and PW4 have supported the case of prosecution to the extent of incident of robbery being committed against them at the point of pistol. He also referred to the relevant portion of their testimonies recorded during trial. He further argued that there has been recovery of country made State V/s Amit Kumar @ Resham etc. ("Acquitted") Page 9 of 14 FIR No. 455/13; U/s 392/397/34 IPC; P.S. Adarsh Nagar & Sec. 25 Arms Act D.O.D. 29.11.2014 pistol Ex P2 and cartridge Ex P3 at the instance of accused Ved Parkash @ Kalu from his house and said pistol is used by the accused at the time of committing robbery against PW3 and PW4. Thus, prosecution has been able to establish the charges levelled against the accused persons. Ld Additional PP further argued that PW3 and PW4 may have been won over by the accused persons due to which they did not identify them during trial but no benefit should be given to them on this count.
On the other hand, Ld defence counsels of accused persons vehemently argued that both the star witnesses of prosecution namely Sh Ram Parkash(PW3) and Hirday Narain(PW4) did not support its case on the point of identity of accused to be the assailants involved in the commission of robbery being committed against them and thus, prosecution has failed to prove its case beyond reasonable doubt.
They further argued that recovery of country made pistol Ex P2 and cartridge Ex P3 has also become doubtful in view of contradictions appearing in the testimonies of PW5 ASI Jolen Dahanga and PW6 Ct. Rahul as also for the reason that no independent public witness was joined by police officials at the time of alleged recovery of said pistol, despite their availability. They pointed out that the house of accused Ved Parkash @ Kalu is shown to be situated in residential locality and public persons were definitely available there. Therefore, benefit of doubt should be given to accused Ved Parkash @ Kalu.
As regards the offence U/s 392/34 IPC charged against all the three accused as also in respect of offence U/s 397 IPC charged against State V/s Amit Kumar @ Resham etc. ("Acquitted") Page 10 of 14 FIR No. 455/13; U/s 392/397/34 IPC; P.S. Adarsh Nagar & Sec. 25 Arms Act D.O.D. 29.11.2014 accused Amit Kumar @ Resham, it may be mentioned that prosecution was required to establish beyond doubt that accused herein had committed robbery against the complainant(PW4) and his associate namely Ram Parkash Gupta(PW3). No doubt, both the public witnesses i.e PW3 Ram Parkash Gupta and PW4 Hirday Narain have supported the case of prosecution to the extent that robbery of cash amount of Rs. 95,000/ and valuable documents besides robbery of motorcycle had been committed against them at the point of revolver but it is important to note that both the said key witnesses have failed to support the case of prosecution on the point of identity of accused herein to be the assailants who had committed the robbery against them. Rather, they categorically testified that accused herein were not present at the place of occurrence and had not committed robbery against them. Not only this, both the said witnesses also testified that they cannot identify the weapon of offence even if shown to them and also failed to identify country made pistol Ex P2 shown to them during trial. In this backdrop, alleged recovery of said pistol at the instance of accused namely Ved Parkash @ Kalu is of no consequence. .
In view of the aforesaid discussion and the depositions made by the prosecution witnesses, the entire case of prosecution has fallen down like a pack of cards. According to the case of prosecution, the aforesaid two public witnesses alone had witnessed the incident. Thus, both of them alone could have proved the case of prosecution by deposing on the lines of prosecution story during trial. However, none of them deposed on the lines of prosecution case as mentioned in the chargesheet. In view of testimonies of State V/s Amit Kumar @ Resham etc. ("Acquitted") Page 11 of 14 FIR No. 455/13; U/s 392/397/34 IPC; P.S. Adarsh Nagar & Sec. 25 Arms Act D.O.D. 29.11.2014 said public witnesses, Court is of the view that the entire case of prosecution has become doubtful.
The other prosecution witnesses and the documents relied by prosecution, could have been of corroborative value if something would have come to the surface in the deposition of said eye witnesses, but both of them turned hostile to the case of prosecution and nothing could be elicited in their cross examination on behalf of State connecting the accused with the offence charged against them.
In view of the aforesaid discussion, Court is of the view that prosecution has miserably failed to establish the aforesaid charges levelled against the accused persons beyond shadow of doubt.
This brings me down to the offence U/s 25 Arms Act charged against accused Ved Prakash @ Kalu. According to the case of prosecution, accused Ved Prakash @ Kalu had led the police officials namely ASI Jolen Dahanga (PW5), Ct. Rahul (PW6) and Ct. Sandeep to his residential house on 22.03.2014 and got recovered one country made pistol loaded with one cartridge.
In his cross examination, PW5 ASI Jolen Dahanga and PW6 Ct. Rahul claimed that they had reached the house of said accused in between 23 am during the intervening night of 22/23.03.2014. Both the said witnesses claimed that they had gone to the house of said accused in private taxi i.e. Indica Car which was being driven by taxi driver. It has been admitted by both the said witnesses in their respective cross examination that they did not make any request to driver of said private taxi, for joining the proceedings at State V/s Amit Kumar @ Resham etc. ("Acquitted") Page 12 of 14 FIR No. 455/13; U/s 392/397/34 IPC; P.S. Adarsh Nagar & Sec. 25 Arms Act D.O.D. 29.11.2014 the house of said accused. PW5 could not offer any explanation for not making any such request to said taxi driver, despite being specifically asked by ld. defence counsels of accused persons. Moreover, both these witnesses admitted that the house of said accused was surrounded by many houses, but no effort was made to call any of the occupants of those houses, to join the investigation. In this backdrop, Court is entirely in agreement with the submission of ld. defence counsels that no sincere effort is shown to have been made by police officials for joining independent public witnesses despite their availability, which creates reasonable doubt in the prosecution story. Thus, accused Ved Prakash @ Kalu is entitled to benefit of doubt thereof.
Moreover, it is strange to note here that PW5 ASI Jolen Dahanga (IO) claimed to have paid taxi fare of Rs. 1200/ from his own pocket and did not claim any reimbursement from his department. Same is not believable by any stretch of imagination as it is not understandable as to why any police official would pay such huge amount from his own pocket.
Furthermore, there is contradiction appearing in the testimonies of PW5 and PW6 in as much as PW5 claimed that both the parents of accused Ved Prakash @ Kalu were found present in his house at the time of their visit, but he did not obtain their signatures on any of the memos relating to this case, whereas PW6 claimed that parents and sister of said accused were found present there at that time. The prosecution has also failed to explain as to why no effort was made by the IO to collect any document to establish that house no. 42, Gali No. 2, Sushila Garden, Mandoli, Delhi was belonging to accused Ved Prakash @ Kalu which further creates doubt in the prosecution story. State V/s Amit Kumar @ Resham etc. ("Acquitted") Page 13 of 14 FIR No. 455/13; U/s 392/397/34 IPC; P.S. Adarsh Nagar & Sec. 25 Arms Act D.O.D. 29.11.2014 There is another reason which persuades the Court to grant benefit of doubt to accused Ved Prakash @ Kalu as regards the charge U/s 25 Arms Act. In order to attract the said offence, it was essential for the prosecution to establish that accused Ved Prakash @ Kalu was found in conscious possession of any arm or ammunition without any licence. In the present case, it has been admitted by PW5 and PW6 that no arm and/or ammunition was recovered from the person of said accused. Rather, the case of prosecution is that country made pistol Ex.P2 and cartridge Ex.P3 had been recovered from the house of said accused, which was also being occupied by other persons including parents and sister of said accused. Thus, it cannot be said that country made pistol Ex.P2 and cartridge Ex.P3 were recovered from conscious possession of accused Ved Prakash @ Kalu.
In the light of aforesaid discussion, Court is of the considered view that the prosecution has failed to establish the charges levelled against all the accused persons beyond shadow of doubt. Consequently, all three accused persons namely Amit Kumar @ Resham, Aman Sharma and Ved Prakash @ Kalu are acquitted of the charges levelled against them by giving them benefit of doubt. However, case property be confiscated to the State after expiry of period of appeal or subject to decision of appeal in case any appeal is preferred by State against the judgment passed by this Court, as per rules. File be consigned to Record Room after compliance of Section 437A Cr.P.C, as per the rules.
Announced in open Court today
On 29.11.2014 (Vidya Prakash)
Additional Sessions Judge04 (North)
Rohini Courts/Delhi
State V/s Amit Kumar @ Resham etc. ("Acquitted") Page 14 of 14