Delhi District Court
Fir No. 307/2011 5 State vs . Asif @ Lamboo Etc. 1 Of 57 on 21 May, 2022
IN THE COURT OF SH. DEVENDER KUMAR, ADDITIONAL SESSIONS JUDGE-02(NE), KARKARDOOMA COURTS, DELHI CNR No. DLNE01-000049-2011 SC No. 44364/2015 FIR No. 307/2011 PS : Welcome U/s. 302/392/397/120B/34 IPC State Versus 1. Asif @ Lamboo S/o Late Sh. Sabir Ali R/o H. No. C-43, Mata Sundri Road, Dariya Ganj, Delhi 2. Juber S/o Late Sh. Ali Raja R/o Mohalla Majhapota,Amroha, J. P. Nagar, UP Also at : Mohalla Syana Sikander PS Aurangabad, Bulandshahar, UP 3. Abdul Wahab @ Raju S/o Late Sh. Mukhtyar Ahmed R/o Mohalla Begum Sarai Khurd Distt. J. P. Nagar, U.P. 4. Afroj S/o Sh. Salauddin R/o Mohalla Majhapota, Amroha, J. P. Nagar, UP FIR No. 307/2011 5 State Vs. Asif @ Lamboo etc. 1 of 57 5. Asif @ Mulla S/o Sh. Abdul Rashid R/o Village Jehtoli, Tehsil Hasanpur, PS Hasanpur, Kotwali, Distt. J. P. Nagar, UP Also At : H. No. 135, Village Jaituli, Distt. J P Nagar, UP 6. Shahid @ Pahari S/o Late Sh. Khurshid R/o H. No. B- 278, Jeans Market, Welcome, Delhi 7. Shahjad @ Danish S/o Sh. Sabir Ali R/o H. No. 632, Rang Mahal Katra Milla, Delhi. Date of Institution / Committal : 06.01.2012 Date of Arguments : 12.04.2022 Date of Pronouncement : 21.05.2022 JUDGMENT:
1. Prosecution case: It is the case of the prosecution that on 05/08/2011, SHO / Inspector and ATO Insp. Sudhir Kumar were present at Karkardooma Court when they received an information of firing on a boy. They immediately rushed to the spot, where inspector investigation Manmohan Kumar and SI Sandeep also met there who reached there on receiving DD No.48B that 3 boys on foot shot one boy near garbage dumping yard and fled away. Inspector with SI Sandeep, Ct. Vijay and Ct. Naresh went to GTB Hospital after leaving the other police staff at the spot FIR No. 307/2011 5 State Vs. Asif @ Lamboo etc. 2 of 57 and collected the MLC of injured. Injured was unfit for statement due to FIR was lodged on the basis of DD entry. Doctor seized the clothes and belonging of the injured and handed over to Duty Constable who further handed over to IO. Meanwhile, the identity of injured was established as Akram Latif, but during treatment injured expired and information was received by PS vide DD entry 72B. Statement of the wife of deceased Shazia Jimani Shah was recorded. Postmortem was conducted on the dead body of the deceased and accused persons were arrested from different places and the stolen articles were also recovered including Titan Watch and ring besides other belongings. Two pistols were recovered from the accused persons namely Shahid and Arif @ Lamboo. All the accused persons charge sheeted u/s 302/392/397/120B IPC.
2. This charge-sheet committed to this court against accused after compliance of Section 207 Cr.P.C.
3. Initially, Ld. Predecessor framed charges u/s 120B/392 r/w 120B/ 397 r/w 120B/ 302 r/w 120B IPC against all accused besides charges u/s 25/27 of Arms Act against Shahid @ Pahari and Asif @ Lamboo vide order dated 07.03.2012.
4. However, during the pendency of the trial, an application for modification of charges was moved by the prosecution and charges were amended on 07/03/2022. Amended Charge u/s 396 IPC was framed against all accused, whereas charges u/s 412 IPC were framed against all accused qua recoveries. Charges u/s 397 IPC were framed against accused Asif @ FIR No. 307/2011 5 State Vs. Asif @ Lamboo etc. 3 of 57 Lamboo & Shahid @ Pahari besides charges u/s 25/27 of Arms Act. All the accused pleaded not guilty and claimed trial.
5. To prove the allegations, prosecution has examined PW1 Julfikar, PW2 Shazia Jimani Shah, PW3 SI Ajeet Singh, PW4 Alam Latif, PW5 Ct. Vijay, PW6 Muazzam Shah Khan, PW7 HC Jaipal Singh, PW8 SI Mukesh Kumar Jain, PW9 SI Sandeep Kumar, PW10 Imad Haider, PW11 Mohsinuddin, PW12 SI Satender Singh, PW13 Ct. Zile Singh, PW14 ASI Ramesh Singh, PW15 ASI Bhisham Rana, PW16 Ct. Karamveer, PW17 Pradeep Kumar, PW18 Chander Shekhar, PW19 Israr Babu, PW20 Sh. Gaurav Gupta, then Ld. MM, PW21 Sh. Hussain M. Zaidi, PW22 Ct. Vinay Kumar, PW23 Ct. Kuldeep, PW24 Sh. Rajeev Sharda, PW25 Dr. Devender Kumar, PW26 Ct. Umesh Kumar, PW27 Rajeev Ranjan, Nodal officer, PW28 Inspector Kishan Kumar, PW29 Dr. Neha Gupta, PW30 Inspector Yogesh Malhotra, PW31 Dr. Nitin Chawala and PW32 Sh. Rajneesh Gupta, then Addl. DCP. No other witness has been examined and evidence was closed by this court on 04/04/2018.
6. After closing PE, Statements of all Accused recorded under section 313 Cr.P.C, but accused have not preferred to lead any DE.
7. After amendment of the charges, all the accused were offered to recall PWs for re-examination, but all of them made their statements that they were not willing for re-examination of PWs and their opportunity was closed vide order dated 07/03/2022. Additional SA was also not recorded as no new evidence came on record.
FIR No. 307/2011 5 State Vs. Asif @ Lamboo etc. 4 of 57
8. The testimonies of the witnesses recorded by the prosecution are as under.
8.1. PW1 Julfikar has deposed that in the year 2011, he was working as driver on Bus bearing No. UP-23T-0415 being plied between Seelam Pur to Amroha, whereas Himmat Haider was conductor on that bus. On 05.08.2011, at 8.00 am, his bus left Amroha to Delhi with about 35 passengers and reached at Delhi at about 12.00 noon. It is further deposed that accused Juber, Afroz, Raju and Mulla Asif were also travelling by this bus, but on reaching at Delhi, he noticed that one Traffic Inspector was standing there, due to he immediately turned his bus back. It is further deposed that his maternal uncle informed him that a boy belonged to Sambhal was murdered and on the next day, he came to Delhi and came to know through Himmat Haider that he was called by the SHO concerned for inquiry. He along-with Himmat Haider and Sikander visited PS and the police officials made inquiry from them. He identified accused Juber and Afroz present before this court that they belonged to his locality, but he was not aware who committed this murder.
8.1.1. Ld. Addl. PP for State has cross examined PW1 and during cross examination, he has deposed that he did not tell police that on 05.08.2011, accused persons namely Afroz, Juber, Raju and Asif Mulla boarded his bus from Amroha to Delhi or that accused Juber was sitting with him or that Raju was sitting on a seat near door or that accused Afroz and Asif Mulla were sitting on the back seat of his bus or that deceased Akram was also travelling by the same bus. He has denied that accused Asif was continuously receiving phone calls on the way or that they talked to each FIR No. 307/2011 5 State Vs. Asif @ Lamboo etc. 5 of 57 other in a group or that he got down of bus at Jafrabad. It is further denied that he stated to police that deceased Akram sustained bullet injury. PW1 has also denied that he ever made any statement before the police or identified the accused persons.
8.2. PW2 Shazia Jimani Shah is the wife of the deceased Akram and has deposed that she came to Amroha about one month prior to the murder of her husband Akram and prior to it, her husband was working at Hydrabad. It is further deposed that on 05.08.2011, Akram informed her that he was going to Delhi at his Jhandewalan Office and thereafter, she received a phone call of her husband at 9.30 am that he had reached at Ghaziabad and was expected to reach Delhi by 11.30 am. It is further deposed that her husband had one black and green colour bag containing his ID, one broom / mic of ETV Urdu besides a purse containing his debit and credit cards. He also had one mobile phone and another mobile phone was in his pocket. It is further deposed that the deceased was also wearing one gold ring with magenta colour stone and a Titan watch on his wrist. Her husband also had one handicam in his bag with 2-3 blank cassettes for recording. It is further deposed that she received a phone call between 12.00-12.30 pm that her husband was shot and his dead body was found lying on the road side and was being removed to GTB Hospital and the informant asked her to reach at GTB Hospital. She reached GTB Hospital and noticed that the belongings of her husband except mobile phone were missing. It is further deposed that her husband had his purse, SBI and ICICI Bank ATM cards besides other items, but only one mobile phone and ball pen were found near his dead body, however other items were missing. It is further deposed that during FIR No. 307/2011 5 State Vs. Asif @ Lamboo etc. 6 of 57 the TIP identification, she identified the gold ring with pink colour stone and Titan watch during TIP proceedings Ex. PW2/A and identified the recovered articles as Ex. P1 to Ex. P7.
8.2.1 During cross examination, she has deposed that she was not aware as to who informed her about the death of her husband. She has identified Titan watch as it was presented by her parents to the deceased in her marriage, but she did not have receipt of this watch. It is further deposed that she identified watch in the chamber of Ld. MM and IO was accompanied her at that time. There were many rings and watches out of which she identified the watch of her husband, but she did not remember the make of other 4-5 watches. Her husband was wearing check shirt of blue colour on the day of incident, but she did not tell to the police that gold colour ring having magenta colour stone was also worn by her husband, as the same was not asked by the police. She came to know in hospital that only one mobile phone of her husband was recovered. She was not aware about the particulars of ATM cards recovered from the accused.
8.3. PW3 SI Ajeet Singh was posted as Duty Officer and on 05.08.2011, he received a rukka from Ct. Vijay sent by Inspector Yogesh Malhotra and recorded FIR Ex. PW3/A and handed over that rukka and copy of FIR to Ct. Vijay to further hand over to IO.
8.4. PW4 Alam Latif identified the dead body of the deceased vide statement Ex. PW4/A. FIR No. 307/2011 5 State Vs. Asif @ Lamboo etc. 7 of 57 8.5. PW5 Ct. Vijay has deposed that on 05.08.2011, he joined investigation with IO on receiving DD No. 48B (Ex. PW5/A). He along-with SI Sandeep reached visited the spot but no eye witness was found there. On inquiry, it was revealed that injured had been removed to GTB Hospital, but a lot of blood was lying on roadside, in the meanwhile, Inspector Manmohan Kumar also reached there. He along with police team and SHO went to GTB Hospital where SHO collected MLC of unknown injured who was unfit for statement. IO prepared rukka and handed over to him for registration of FIR. On 06.08.2011, he along-with IO again visited GTB Hospital where postmortem was conducted on the dead body of the deceased Akram. One metallic bullet was recovered from the dead body and was handed over to him by the doctor who conducted post mortem in sealed condition with another parcel containing blood on gauge. He handed over the sealed parcels to IO who seized the same vide seizure memo Ex. PW5/B. 8.5.1. During cross examination, he has deposed that crime team did not reach the spot in his presence, but crime team was present when he returned back to the spot. It is further deposed that blood was spread in the area of about 1-2 foot, but no site plan was prepared by IO in his presence.
8.6. PW6 Muazzam Shah Khan was the father-in-law of the deceased and identified the dead body of his son-in-law vide statement Ex. PW6/A. He has deposed that his daughter Shazia was married to Akram Latif on 26.11.2004. On 11.10.2011, he handed over the receipt of gold ring (Ex. PW6/1), bill of video handycam (Ex.PW6/2) and receipt of mobile phone FIR No. 307/2011 5 State Vs. Asif @ Lamboo etc. 8 of 57 make Nokia (Ex. PW6/3) and IO seized the same vide seizure memo Ex. PW6/B. It is further deposed that he presented one watch make Titan to the deceased in his marriage with his daughter, but it was robbed by the accused persons, however he could not find out receipt of this wrist watch. It is further deposed that on 05.08.2011, he talked to the deceased who informed him that he was going to Delhi to attend a program. He has identified the case property i.e. watch (Ex. P2), ring (Ex. P1), mobile phone (Ex. P6) and Handycam (Ex. P7).
8.6.1. During cross examination, he has deposed that he came to know about this incident at about 12.00 noon on 05/08/2011 at Barabanki, UP through his daughter and reached Delhi at about 4.00 am. He met police on 08/08/2011 regarding handing over of receipts at Amroha during the period from 06.08.2011 to 11.10.2011, but prior to on 11.10.2011, he did not try to provide the abovesaid receipts to the police. He did not remember the shop wherefrom he purchased the wrist watch as now shopping complex has been constructed over the land after demolition of the said shop. One receipt, out of Ex. P6/1 to Ex. P6/3, was in his possession, whereas two receipts were found in the Almira of the deceased, but he did not remember the date when he found such receipts. No list of dowry articles was prepared at the time of the marriage of his daughter. He also did not remember in whose name the gold ring was purchased, but he disclosed the name of the jeweler from where he purchased this ring, however police did not make any inquiry about this receipt. It is admitted that the name of customer is not mentioned on the receipt Ex. PW6/1.
FIR No. 307/2011 5 State Vs. Asif @ Lamboo etc. 9 of 57 8.7. PW7 HC Jaipal Singh was MHC(M) and received the sealed parcels on different dates against entries in Register No. 19 and also sent sealed parcels to FSL vide different entries. The entries of Register No. 19 are Ex. PW7/A, Ex. PW7/B, Ex. PW7/C, Ex. PW7/D, Ex. PW7/E, Ex. PW7/F, Ex. PW7/G, Ex. PW7/H, Ex. PW7/J, Ex. PW7/K and Ex. PW7/M. 8.7.1. During cross examination, he has admitted that the copies of entry Ex. PW7/E and Ex. PWJ produced before this court and Ex. PW7/DA was not similar to Ex. PW7/E and Ex. PW7/J. It is further admitted that entries are not bearing signatures of SHO or the time of making such entries.
8.8. PW8 SI Mukesh Kumar Jain, draftsman visited the spot of incident on 21.10.2011 and prepared scaled site plan Ex. PW8/A, but during cross examination, he has admitted that he did not see bloodstains at point A on site plan during his visit to the spot of incident.
8.9. PW9 SI Sandeep Kumar was assigned DD No. 48B on 05.08.2011 regarding the incident that three persons fled away after firing on a person at Seelam Pur near Naala, in front of Kudedan, Main Road, Delhi. He along-with Ct. Vijay visited the spot and found blood stains lying there. He along with SHO visited GTB Hospital where Ct. Karamveer handed over MLC of unknown person to SHO with remarks unfit for statement, but no eye witness was found there. On the basis of DD entry, IO prepared rukka and handed over to Ct. Vijay for registration of FIR. Duty Constable Karamvir also handed over one sealed parcel containing mobile phone and ball pen of the deceased and IO seized vide seizure memo Ex. PW9/A. It is FIR No. 307/2011 5 State Vs. Asif @ Lamboo etc. 10 of 57 further deposed Ct. Karamveer received a call on the mobile phone of the deceased and SHO attended said call and caller introduced himself as Mauzam Khan, father-in-law of the injured/ deceased and SHO informed him about this incident. The family members of the deceased also reached GTB Hospital and IO recorded statements of Sazia and Aalam before postmortem of the deceased. On next day, Ct. Vijay handed over a bullet sealed in glass bottle to IO, who seized vide seizure memo Ex. PW9/B. He has identified mobile phone and ball pen as Ex. P8 and Ex. P9 respectively.
8.9.1. During cross examination, he has admitted that he did not go through the contents of MLC to know as to who got the injured hospitalized. He was also not aware the time when IO received phone call of the father-in-law of the deceased and was also not aware about the phone number by which call was received.
8.10. PW10 Imad Haider was the co-owner of Bus No. UP-23D-0415 being plied from Amroha to Jafrabad, Delhi. He was called by the concerned PS to join enquiry regarding this case but he did not know anything so he did not tell anything to police. Later on, he came to know that one person whose name he did not remember, but was son of Masalewala was murdered on the previous day. He did not know anything about this case.
8.10.1. During cross examination by Ld. Addl. PP for State, he has admitted that he did not know accused namely Afroz, Zuber, Asif Mullah and Raju prior to this incident, however Afroz was neighbour of his driver FIR No. 307/2011 5 State Vs. Asif @ Lamboo etc. 11 of 57 Zulfikar. It is denied that abovesaid accused persons travelled by his bus on 05.08.2011 from Amroha to Delhi. He has further denied all the facts pertaining to this case or identification of accused persons. He has also denied that he was accompanied with IO to Karkardooma Court where he identified accused Shehzad Ali @ Danish and Shahid @ Pahari who travelled by his bus. He has also denied that any of the accused persons travelled by his bus.
8.11. PW11 Mohsinuddin has deposed that on 09.08.2011, he came to know that police were searching accused namely Afroz, Zubair, Raju, Asif @ Mullah. He knew accused Afroz, Zubair and Raju so joined police team to search them and reached Sumangalam Restaurant, Zoya Road where police received a secret information about accused Afroz and Asif @ Mullah and apprehended them from the place under flyover at Zoya Road and arrested them vide arrest and personal search memo Ex.PW11/A, Ex.PW11/B, Ex. PW11/A1 and Ex. PW11/B1 respectively. Accused were interrogated and made their disclosure statement Ex. PW11/C and Ex. PW11/D. Accused Afroz was wearing one wrist watch make Titan, whereas accused Asif @ Mullah was wearing gold ring in his finger belonging to his brother-in-law Akram Latif. Both the articles were seized vide seizure memos Ex. PW11/E and Ex. PW11/F. He has identified ring as Ex. P1 and Titan watch as Ex. P2.
8.11.1. During cross examination, he has deposed that he was called by police officials through his father namely Mauzam Khan. He was not aware whether police officials were accompanied with someone else but they were FIR No. 307/2011 5 State Vs. Asif @ Lamboo etc. 12 of 57 in civil dress and having vehicle. He did not remember whether Mauzam Khan was with them but no official from local PS was accompanied with them. It is admitted that Asif @ Mullah was not known to him prior to that day and even his signatures were not obtained by the police on the documents at the place where also he joined investigation, and even signatures of no public persons were obtained on the arrest memos of the accused persons. It is further deposed that he only identified accused Afroz but did not know accused Asif @ Mullah, however both were apprehended by the police. It is further admitted that one ring was recovered from the possession of accused Asif @ Mullah, but he did not know whether any other article was recovered from accused besides this ring or not. Deceased was his real brother-in-law. In his presence, accused Asif @ Mullah was not taken to local PS, but his signatures were obtained on three documents, however those documents were not blank. He left the place of arrest of the accused at about 11.15 -11.30 am and recoveries from the accused persons were effected only after their arrest and one wrist watch was recovered from the personal search of accused Afroz. It is admitted that wrist watches make Titan and similar to shown to be recovered from accused Afroz are easily available in the market and even no specific identification mark was put on watch to distinguish it.
8.12. PW12 SI Satender Singh joined the investigation on 07.08.2011 with IO and went to Amroha in search of accused. Police team met the wife of deceased and thereafter, they went in search of accused with local police, but no one could be arrested. They stayed in Sumanglam Hotel, Amroha and police team accompanied with Mohsinuddin arrested accused namely FIR No. 307/2011 5 State Vs. Asif @ Lamboo etc. 13 of 57 Asif @ Mullah and Afroz on secret information and on identification of Mohsinuddin. Accused Asif was wearing one gold ring having pink colour stone and was recovered from his possession, whereas accused Afroz was wearing wrist watch and both were seized. Both accused were brought to Delhi and pointed out the spot vide pointing out memo Ex. PW12/A. 8.12.1. PW12 again joined investigation on 11.09.2011 and witnessed the arrest of accused Asif @ Lamboo on secret information vide arrest and personal search memos Ex.PW12/B and Ex. PW12/C. During investigation, accused also made his disclosure statement Ex. PW12/D and, in pursuance of disclosure statement, one country made pistol was recovered from his possession, of which, sketch with live cartridge is Ex. PW12/E. The country made pistol and cartridge were seized vide seizure memo Ex. PW12/F. Accused Asif @ Lamboo led the police party to the spot and pointed out the place of occurrence vide pointing out memo Ex.PW12/G. On 11.10.2011, father-in-law of deceased Mauzam Khan handed over three receipts in original regarding the purchase of one gold ring, cash memo regarding mobile phone make Nokia and one bill regarding purchasing of video camera by deceased which are Ex. P6/1, Ex. P6/2 and Ex. P6/3. IO seized all these receipts vide seizure memo Ex. PW6/A. He has identified the case property i.e. wrist watch Ex. P1, ring Ex. P2 and country made pistol along- with cartridge Ex. P8 and Ex. P9.
8.12.2. During cross examination, he has admitted that one mobile phone was recovered during personal search of the accused Afroz and one wrist watch was also recovered. He has admitted that accused was arrested at FIR No. 307/2011 5 State Vs. Asif @ Lamboo etc. 14 of 57 about 11.00 am, whereas Moinuddin reached Sumanglam Restaurant at about 9.00 am, but by that time there was no secret information. It is further admitted that place of occurrence was already within the knowledge of the police before arresting of the accused. One katta was recovered from his left side of his wearing pant, but there was no identification mark on the katta. He did not remember as to whether IO put any specific identification mark on the arms and ammunition or not.
8.13. PW13 Ct. Zile Singh visited the spot on 05.08.2011 and clicked the photographs Ex. PW13/X1 to Ex. PW13/X12, of which, negatives are Ex. PW13/A1 to Ex. PW13/A12.
8.14. PW14 ASI Ramesh Singh joined investigation with IO on the intervening night of 9/10.08.2011. On that day, police received a secret information regarding the presence of accused Shahid @ Pahari and Shehjad @ Danish, who were arrested and one country made pistol was recovered from the possession of the accused Shahid @ Pahari along-with one mobile phone. IO prepared sketch of country made pistol Ex. PW14/A and seized the same vide seizure memo Ex.PW14/B. Mobile phone was seized vide seizure memo Ex. PW14/C. He conducted personal search of accused Danish, who was carrying plastic polythene bag and found containing one handycam of make Hitatchi which was seized vide seizure memo Ex. PW14/D. Both the accused made their disclosure statements Ex. PW14/E and Ex.PW14/F and were arrested vide memos Ex.PW14/G, Ex.PW14/H, Ex.PW14/G1 and Ex.PW14/H1 respectively. Both the accused were kept in muffled faces and led the police party to the spot of incident FIR No. 307/2011 5 State Vs. Asif @ Lamboo etc. 15 of 57 and got prepared pointing out memo Ex.PW14/J. He has identified mobile phone Ex.P6 recovered from the accused Shahid @ Phari and country-made pistol as Ex. P10 and Handicam make Hitatchi as Ex. P7.
8.14.1. During cross examination, he has deposed that IO received secret information at about 12.00 midnight and secret informer left the spot at 3.00 pm. Secret informer pointed out towards the accused from distance of about 40-50 yards and informer was standing with them. No identification mark was put on the recovered katta, but it is denied that handicam was planted upon the accused or that accused did not make any disclosure statement or that recovery was planted.
8.15. PW15 ASI Bhisham Rana joined investigation with police team on 09.08.2011 and visited Amroha in search of accused Juber and Raju. They made search for the accused and reached near Transport tiraha where they received a secret information at about 12.00 -12.30 (midnight) and accused Juber and Raju were apprehended at the instance of secret informer and disclosed their names as Juber and Abdul Wahab @ Raju and having a bag of black and green colour. Accused Juber disclosed that he was carrying a bag which belonged to the deceased and on checking, bag was found containing one press reporter mike, on which ETV was written, three ATM Cards, one purse containing Rs. 600/- and some photographs, one admit card for appearing in some examination besides other documents. Bag containing abovesaid documents was seized vide seizure memo Ex. PW15/A. Accused Abdul Wahab @ Raju was personally searched and one ATM card of SBI was recovered from his pocket bearing the name of Sazia FIR No. 307/2011 5 State Vs. Asif @ Lamboo etc. 16 of 57 was seized vide memo Ex. PW15/B. Both accused were arrested vide arrest memos and personal search memos Ex.PW15/C, Ex.PW15/D, Ex.PW15/C1 and Ex.PW15/D1 respectively. Both accused were produced before IO and made their disclosure statements Ex. PW15/E and Ex. PW15/F and led to the police team to the place of occurrence and got prepared pointing out memo Ex. PW15/G. He has identified the case property recovered from the accused i.e. one set of press reporter mike with wire as Ex. P5 and ATM card as Ex. P3.
8.15.1. During cross examination, he has deposed that no police official from Amroha was accompanied with them during the search of the accused and even accused persons were also not known to them prior to their arrest. However, houses of accused were situated in the same locality but they did not visit their houses. Prior to receiving of the secret information, they searched the accused persons for about 30 to 60 minutes. He prepared seizure memo, arrest memo and personal search memo of accused within 30 minutes at the spot where accused persons were apprehended, but he did not prepare the site plan of the place of arrest of the accused. It is denied that both accused surrendered themselves in PS Amroha on 07.08.2011 and were brought to Delhi on the same day.
8.16. PW16 Ct. Karamveer was posted as Duty Constable at GTB Hospital. On 05.08.2011, doctor handed him over one parcel containing clothes of the deceased, one mobile phone make Nokia of blue and gray colour and one ball pen, which he handed over to IO, who seized vide seizure memo Ex. PW9/A. FIR No. 307/2011 5 State Vs. Asif @ Lamboo etc. 17 of 57 8.17. PW17 Sh. Pradeep Kumar was running a shop in the Name and Style of M/s GPS Enterprises. On 20.05.2011, he sold out one video camera (handicam) make Hitachi to one Akram latif against cash memo Ex. PW6/2 against a sum of Rs. 6,000/-.
8.17.1. During cross examination, he has admitted that receipt Ex. PW6/2 is in his own handwriting, but he has failed to produce any stock register pertaining to this camera being a second-hand one. He was not aware as to how many cameras were sold out or purchased by him during the month of May, 2011, but he might have issued bills only for one or two customers prior to issuance of this bill Ex.PW6/2, but he has no record to this effect. This second-hand camera was purchased by him from one Karan, but he did not have any receipt of this camara or ID proof of the seller when purchased it.
8.18. PW18 Sh. Chander Shekhar, Nodal Office from Bharti Airtel, has produced the CDR of mobile no. 9560530665 for the period from 01.08.2011 to 07.08.2011, in the name of one Uzma issued against application form dated 08.02.2011. The subscriber submitted ID proof of Election ID, copy of which, is Ex. PW18/A. Copy of election ID is Ex. PW18/B and Call Details Record, Cell Location Chart and Certificate u/s 65B of Indian Evidence Act are Ex. PW18/C to Ex. PW18/E. 8.19. PW19 Sh. Israr Babu, Nodal Office from Vodafone, has produced the CDR of Mobile No. 9873605752 for the period from 01.08.2011 to 07.08.2011, in the name of one Wahab issued against application form and election ID which are Ex. PW19/A and Ex.PW19/B. CDR of abovesaid FIR No. 307/2011 5 State Vs. Asif @ Lamboo etc. 18 of 57 period along-with Cell ID Chart and Certificate u/s 65 of Indian Evidence Act which are Ex. PW19/C to Ex. PW19/E. 8.20. PW20 Sh. Gaurav Gupta, Ld. MM has proved the TIP proceedings of Titan watch and gold ring conducted on 10.08.2011 vide application Ex. PW20/A, which was marked to him being Link MM. On 11.08.2011, accused Shehzad Ali @ Danish refused to join TIP proceedings Ex.PW20/B. He supplied the copy of TIP proceedings to IO against application Ex.PW20/C. Again, an application Ex.PW20/B for identification of case property was marked to him and case property comprising of one gold ring with pink colour stone and one Titan watch produced before him with similar other articles. He concluded TIP Proceedings Ex.PW2/A and supplied the copy of proceedings to IO against application Ex. PW20/D. He also conducted the TIP proceedings of accused Asif Ali @ Lamboo on 12.09.2011, but accused refused to join TIP proceedings vide proceedings Ex. PW20/E. 8.21. PW21 Sh. Hussain M. Zaidi, Nodal Office from Idea Cellular Ltd., has proved the CDR of Mobile No. 9927489281 for the period from 01.08.2011 to 08.08.2011, in the name of Afroz Khan issued against application form Ex. PW21/A and copy of Voter ID Ex. PW21/B. Cell ID and CDR alongwith certificate u/s 65B of Evidence Act are Ex.PW21/C to Ex. PW21/D. 8.22. PW22 Ct. Vinay Kumar deposited four sealed parcels with two sample seals with FSL on 04.10.2011 after collecting from MHC(M). After, FIR No. 307/2011 5 State Vs. Asif @ Lamboo etc. 19 of 57 depositing the same, he handed over acknowledgement receipt Ex.PW7/K to MHC (M).
8.23. PW23 Ct. Kuldeep again deposited five sealed parcels along-with sample seals with FSL vide RC on 21.10.2011. He handed over acknowledgement receipt to MHC(M) which is Ex. PW7/M. 8.24. PW24 Sh. Rajeev Sharda, Nodal Office from Reliance Communications has produced the CDR of Mobile No. 9358556803, in the name of Sajid for the period from 01.08.2011 to 06.08.2011, issued against application form Ex. PW24/A against ID Ex. PW24/B. He has produced CDR with certificate u/s 65B of Evidence Act which are Ex.PW24/C to Ex. PW24/D. 8.25. PW25 Dr. Devender Kumar has proved the MLC of unknown deceased examined on 08.05.2011. Deceased / Patient was brought by TI Kishan Kumar, Fakhruddin and Azad Miya and was examined by Dr. Nitin Chawla.
8.26. PW26 Ct. Umesh Kumar joined the investigation on 09.08.2011 and visited Amroha regarding the arrest of accused Juber and Raju, who were arrested at the instance of secret informer. He has corroborated the testimony of PW15 ASI Bisham Rana regarding the mode and manner of arrest of the accused vide arrest memo and personal search memos Ex. PW15/C, Ex. PW15/D, Ex. PW15/C1 and Ex. PW15/D1 and also made their disclosure statements Ex.PW15/E and Ex.PW15/F. He has further FIR No. 307/2011 5 State Vs. Asif @ Lamboo etc. 20 of 57 corroborated the recovery from accused Juber and Raju seized vide seizure memo Ex. PW15/A and Ex. PW15/B. All the documents are bearing his signatures and recovered articles are Ex. P3 to Ex. P5.
8.26.1. During cross examination, he has admitted that they reached Amroha at about 9.00 - 9.15 pm and visited the house of both accused, but he was not aware about the exact location of the house of the accused as he was standing outside of the house when ASI Bisham Rana entered into the house. They also went to the house of accused Abdul Wahab @ Raju but accused was not found there. Secret information was received by ASI Bisham Rana and he was not aware about this information.
8.27. PW27 Sh. Rajeev Ranjan, Nodal Office of TATA Tele Services Ltd., has produced the CDR record of Mobile No. 8439350804 for the period from 01.08.2011 to 07.08.2011, in the name of Mahesh Kumar. Mobile number was issued against application Ex.PW27/A and documents Ex. PW27/B. CDR for the abovesaid mobile is Ex.PW24/C, Location Chart is Ex.PW24/D and certificate u/s 65 of Evidence Act is Ex. PW27/E. 8.28. PW28 Inspector Kishan Kumar was posted as TI, Shahdara Circle. On that day, at about 12.00 - 12.15 pm, at 66 foota road, near Jafrabad Kudaghar, he received an information from public persons during petrolling that one injured was lying near Kudaghar. He found one person in injured condition and removed him to GTB Hospital with the help of public persons and got him admitted there.
FIR No. 307/2011 5 State Vs. Asif @ Lamboo etc. 21 of 57 8.29. PW29 Dr. Neha Gupta has proved the postmortem report of the deceased Akram Latif which is Ex. PW29/A. She handed over one exhibit containing bullet to IO along-with sample seal.
8.30. PW30 Inspector Yogesh Malhora / IO has deposed that on 05.08.2011, he was posted with PS Welcome as SHO. He received an information about the recovery of a dead body and reached the spot where SI Sandeep handed him over DD no. 48B. He came to know that injured had been removed to GTB Hospital but no eye witness was found present there. He alongwith Ct. Vijay and SI Sandeep went to GTB Hospital and collected the MLC of injured, who was unfit for statement. No eye witness was present in the hospital also. Injured had gunshot injury on his left thigh. He made his endorsement Ex.PW13/A on DD no. 48B and got registered FIR through Ct. Vijay. Duty Constable at GTB Hospital handed over sealed parcels containing the clothes of the deceased as well as his belonging i.e. mobile phone and ball pen to him, which were seized vide separate seizure memo. He received call from father-in-law of injured who disclosed his name as Muazzam Shah, whereas the name of the injured Akram Latif. He alongwith SI Sandeep reached the spot and seized blood stains and blood earth control vide seizure memo Ex. PW5/B. He received the information of the death of the deceased vide DD no. 72B which is Ex. PW30C.
8.30.1. PW30 has again deposed that on 06.08.2011, he got conducted the inquest proceedings of the deceased Ex. PW30/D on identification of the dead body and made a request for postmortem Ex. PW30/E. After postmortem, Ct. Vijay handed over two sealed parcels and he seized those FIR No. 307/2011 5 State Vs. Asif @ Lamboo etc. 22 of 57 parcels. He called the partner and conductor of the bus for investigation and on 06.08.2011, Imad Haider and Helper Zulfikar disclosed that deceased Akram Lalif and accused persons travelled by the same bus. They also disclosed about the suspicious activities of the accused persons and also that the accused Asif was constantly talking to someone on phone. They were also calling to each other, whereas they also witnessed that three more persons were standing at the bus stand at Delhi and accused Asif @ Mulla joined them. Haider and Julfikar further disclosed that they saw three persons surrounded the deceased Akram Latif, followed and shot him dead.
8.30.2. PW30 arrested the accused Afroz and Asif @ Mulla on 09.08.2011, in the presence of brother-in-law of the deceased on the basis of a secret information and also recovered a wrist watch and gold ring. He came to know about the involvement of accused namely Asif @ Lamboo, Shahid Pahadi and Shehzad Ali @ Danish and also arrested them. One robbed mobile phone was recovered from the possession of accused Shahid @ Pahari and one handicam was recovered from the possession of accused Shahzad @ Danish. One pistol was recovered from the accused Shahid @ Pahari. On the next day, he moved application for TIP of the accused which is Ex. PW30/A. He also moved an application for TIP of the case property recovered from the accused. Witness Julfikar and Imad Haider identified accused Danish @ Shahzad Ali and Shahid @ Pahari, whereas Accused Asif @ Lamboo was apprehended on 11.09.2011. One country made pistol was recovered along with live cartridge from his possession. He moved an application for TIP of accused Asif @ Lmboo refused to participate in TIP proceedings. He collected photographs from the photographer of the crime FIR No. 307/2011 5 State Vs. Asif @ Lamboo etc. 23 of 57 team and crime team in-charge handed over his SOC report Ex. PW30/C. He also collected FSL reports Ex. PW30/D and Ex. PW30/E and ballistic report Ex. PW30/E. He got sanction under section 39 of Arms Act from DCP concerned for the trial of the accused under Arms Act which is Ex. PW32/A and has identified the case property as Ex. P1 to Ex. P10.
8.30.3. During cross examination, he has admitted that he made inquiry from caller who made a call at 100 number vide DD No. 48B but did not remember his name nor his statement was recorded because he was not a witness of this crime. It is further deposed that he did not make any inquiry from any person from Taj Hotel situated across the road, but it is denied that one mobile phone and handicam were found lying at the spot when he reached the spot at 11.30-11.45 am or that the same have been planted upon the accused Shahjad @ Danish. Accused Afroz and Asif Mulla were arrested on 09.08.2011, whereas Shahjad @ Danish was arrested on 10.08.2011. He did not ask any public person to join investigation on receiving the secret information. It is admitted that he did not get verified the receipts handed over by the father-in-law of the deceased from the shopkeepers and receipt of ring could not be verified as he did not remember the shop wherefrom the same was purchased in the year 2004. New Baby Jeweller (Sona Chandi Abhushanao ke Jebrat ka Bikreta, Nikat Chhaya Chauraha, Barahbanki) was mentioned on the receipt, but he did not verify the said shop. He did not remember as to how many watches and rings were arranged by him for the purpose of TIP, but the same were produced in sealed covered along-with other articles for TIP. He visited Amroha only once for the purpose of investigation of this case and they FIR No. 307/2011 5 State Vs. Asif @ Lamboo etc. 24 of 57 firstly visited the house of the deceased at Amroha and thereafter, to the house of Afroz, but he did not remember in which mohalla or gali the house of accused Afroz was situated. The address of Afroz was disclosed by Imam Haider and Zulfikar in their statements. It is admitted that robbed articles pertaining to this case were not recovered from accused Asif @ Lamboo, who was arrested from thickly populated area, but no shopkeeper was asked to join investigation at the time of his arrest. He did not remember if mobile phone was recovered from the possession of the accused, but it is admitted that no mobile was recovered from the personal search of the accused. It is admitted that no mobile phone was recovered from the possession of accused Asif @ Lamboo or at his instance. It is denied that country made pistol and one live cartridge were planted upon the accused.
8.31. PW31 Dr. Nitin Chawala examined the deceased against MLC Ex.PW31/A. The heart beat of the patient was very weak and patient was unresponsive and unconscious and blood pressure was not recordable. The articles mentioned in MLC were handed over to police in sealed pullanda. The computerized admission record of the patient is Ex. PW31/B. It is further deposed that patient was in case of circulatory collapse and oozing of blood may not be expected in such situation, but he was not aware what type of weapon was used.
8.32. PW32 Sh. Rajneesh Gupta, the then Additional DCP, NE has proved the sanction u/s 39 of Arms Act against the accused Shahid @ Pahari and Asif @ Lamboo which is Ex. PW32/A. FIR No. 307/2011 5 State Vs. Asif @ Lamboo etc. 25 of 57 8.33. Accused Juber, Abdul Wahab and Shahid @ Danish have not disputed the FSL reports pertains to blood group and exhibits of FSL dated 30.11.2011.
9. I have heard the arguments and perused the record. The first charge against the accused persons is pertaining to the offence u/s 396 IPC i.e. dacoity-cum-murder. In fact, murder during dacoity contemplates satisfaction of the requirements of Sections 391 and 302 IPC together. Relevant sections are as under:
391. 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 or attempt, amount to five or more, every person so committing, attempting or aiding, is said to commit "dacoity".
395. Punishment for dacoity.--Whoever commits dacoity shall be punished with 1[imprisonment for life], or with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine.
396.Dacoity with murder.--If any one of 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.
10. Perusal of Section 391 IPC would show that "dacoity" to be an offence, if five or more persons conjointly commit or attempt to commit a robbery or where the whole number of persons conjointly committing or FIR No. 307/2011 5 State Vs. Asif @ Lamboo etc. 26 of 57 attempting to commit a robbery and persons present and aiding such commission of attempt, amount to five or more. In terms of Section 391 IPC in such an eventuality every person so committing, attempting or aiding is said to commit dacoity. Section 396 IPC which comprehends dacoity with murder is a contingency where one of the five or more persons who are conjointly committing dacoity, commits murder in so committing dacoity. In such a case, every one of those persons shall be punished with death or imprisonment for life or rigorous imprisonment for a term which may extend to 10 years and would also be liable to pay fine.
11. A combined reading of Sections 391 and 396 IPC would bring to the fore, the essential pre-requisite of joint participation of five or more persons in the commission of the offence of dacoity and if in the course thereof any one of them commits murder, all members of the assembly, would be guilty of dacoity with murder and would be liable to be punished as enjoined thereby.
12. Axiomatically, thus, the indispensable precondition to perceive an offence of dacoity with murder is a participating assembly of five or more persons for the commission of the offence. In the absence of such an assembly, no such offence is made out rendering the conviction therefore of any person in isolation for murder, even if proved, impermissible in law.
13. Now the facts of this case have to be seen as to whether the prosecution has proved all the ingredients of both offences or not. As per the case of the prosecution, on 05/08/2011, accused persons committed the FIR No. 307/2011 5 State Vs. Asif @ Lamboo etc. 27 of 57 dacoity of a bag containing of various articles of the deceased Akram Latif after committing his murder and later on robbed articles were recovered from the possession of accused persons. Admittedly, the first information of this crime was flashed vide DD No. 48B - "At Seelam Pur drain near hotel, in front of garbage dumping yard (kudedaan), main road, three boys on foot shot a boy and fled away." By this information, it is clear that there was no certainty of the identity of assailants who shot the deceased and their identity was unknown. Even there was no eye witness of this incident as admitted by PW30 Insp. Yogesh Kumar Malhotra during his cross examination. Rather he has admitted that he did not examine the caller of PCR call as he was not an eye witness of this crime and only made a call after having seen the crowd at the spot. No other witness has been examined by the prosecution to prove that anyone witnessed this incident. However, prosecution has examined Julfikar and Imad Haider to prove that accused persons namely Afroz, Juber, Asif @ Mulla and Raju travelled by their bus and intermingled on the way, whereas accused Asif @ Mulla was continuously talking to someone and got down of bus at Jafrabad and made gestures towards three boys who were already standing there and after taking U-turn, all the three accused followed the deceased Akram, surrounded and shot him.
14. However, both PWs namely Julfikar and Imad Haider have not supported the prosecution either on the point of criminal conspiracy or dacoity-cum-murder of the deceased. PW1 Julfikar has proved that in the year 2011, he was working as driver on Bus No. UP- 23T-0415 being plied from Seelam Pur to Amroha, whereas PW10 Imad Haider was partner of FIR No. 307/2011 5 State Vs. Asif @ Lamboo etc. 28 of 57 this bus. PW1 has proved that on 05.08.2011, at 8.00 am, he left with his bus from Amroha to Delhi and accused namely Juber, Afroz, Raju and Mulla Asif were also travelling by the same bus, but on reaching Delhi, he noticed that one Traffic Inspector was standing there due to he immediately turned his bus and fled away. However, his maternal uncle informed him that a boy belonged to Sambhal was murdered. On next day, he came to know through his conductor Himmat Haider that he was called by SHO for inquiry. He along-with Himmat Haider and Sikander joined inquiry, but was not aware as to who committed this murder. He has categorically denied during cross examination by Ld. Addl. PP for State that he did not disclose to police that on 05.08.2011, accused persons namely Afroz, Juber, Raju and Asif Mulla boarded his bus from Amroha to Delhi or that accused Juber was sitting with him or that Raju was sitting on a seat near door or that accused Afroz and Asif Mulla were sitting on the back seat of his bus or that accused Akram was also travelling by the same bus. He has further denied that accused Asif @ Mulla was continuously receiving or making phone calls on the way or that they talked to each other in a group or that he got down of bus at Jafrabad. He has further denied that he stated to the police that the deceased Akram sustained bullet injury. Rather, he has denied that he made any statement before the police or identified any accused.
15. Similarly, PW10 Imad Haider has also not supported the prosecution and has deposed that at about 10.00 pm, he reached Amroha and received a call from PS concerned regarding inquiry of this case, but he did not know anything so he did not tell anything to the police. On next day of incident, police made inquiry about the persons who travelled by his bus on previous FIR No. 307/2011 5 State Vs. Asif @ Lamboo etc. 29 of 57 day, but did not disclose anything as was not aware. Later on, he came to know that one person, whose name he did not remember, but was son of Masalewala, was murdered on the previous day. He did not know anything about this case and also did not know accused namely Afroz, Zuber, Asif Mullah or Raju prior to this incident, whereas Afroz was neighbour of his driver Zulfikar. He has categorically denied that any accused travelled by his bus on 05.08.2011 from Amroha to Delhi. In fact, testimonies of both PWs have failed to prove the all the accused were together during the travel by their bus or that they witnessed any conspiracy of dacoity by them from deceased or committing of his murder during such dacoity.
16. In fact, PW1 and PW10 were the only main witnesses who could have proved that accused and deceased travelled together by the same bus from Amroha to Delhi or that accused hatched this conspiracy on the way to eliminate the deceased or that they set up a scene and committed the murder of deceased, but they have not supported the prosecution. The other PWs are only police officials who conducted the investigation and did not witness this incident. On the other hand, PW2 Shazia Zamani was the wife of the deceased who also did not witness this incident, whereas her father Mauzzam Shah only identified the dead body of the deceased and did not witness this incident. Similarly, PW11 Mohsinuddin was also witness of the arrest of two accused namely Asif @ Mulla and Afroz as well as recovery therefrom, but he was also not the witness of this murder. As such, there is no witness on record that all accused hatched any conspiracy or committed the murder of the deceased during a dacoity.
FIR No. 307/2011 5 State Vs. Asif @ Lamboo etc. 30 of 57
17. No doubt accused persons were arrested in this case for committing this offence. Accused Afroz and Asif Mulla were arrested vide arrest and personal search memos Ex.PW11/A, Ex.PW11/B, Ex.PW11/A1 and Ex.PW11/B1 and also made their disclosure statements Ex.PW11/C and Ex.PW11/D. Accused Shahid Pahari and Danish were arrested vide arrest and personal search memos Ex.PW14/G, Ex.PW14/H, Ex.PW14/G1 and Ex.PW14/H1 and made their disclosure statements Ex.PW14/E and Ex.PW14/F. Accused Abdul Wahab @ Raju and Juber were arrested vide arrest and personal search memos Ex.PW15/D, Ex.PW15/D, Ex.PW15/C1 and Ex.PW15/D1 and made their disclosure statements Ex.PW15/F and Ex.PW15/E. Accused Asif @ Lamboo was arrested vide arrest and personal search memos Ex.PW12/B and Ex.PW12/B1 and made his disclosure statement Ex.PW12/D.
18. Accused Afroz led to the recovery of Titan watch seized vide seizure memo Ex.PW11/E, accused Asif @ Mulla led to recovery of a ring vide seizure memo Ex.PW11/F. Accused Shahid led police to the recovery of Nokia mobile phone vide seizure memo Ex.PW14/C, accused Shahzad @ Danish led to the recovery of Handicam vide seizure memo Ex. PW14/D. Juber led to the recovery of beg and mike vide seizure memo Ex.PW15/A, accused Abdul Wahab led to the recovery of ATM card vide seizure memo Ex.PW15/B. All such recoveries have found support from the testimony of PW2 Shazia Jimani Shah who has deposed that her husband left house with a bag containing the articles recovered from the accused persons.
FIR No. 307/2011 5 State Vs. Asif @ Lamboo etc. 31 of 57
19. Ld. APP for State has argued that all the recoveries made from the possession or at the instance of accused persons have proved that accused were the persons who robbed the deceased and committed his murder. On the other hand, Ld. counsel for the accused has argued that recoveries shown to be made by the police at the instance or from the possession of accused are not reliable and accused persons are entitled for the benefit of doubt.
20. Admittedly, recovery or discovery of a new fact in pursuance of disclosure statement of an accused under section 25 of Evidence Act is admissible u/s 27 of Evidence Act, until and unless there is sound reason to discard it. The law related to section 27 of Evidence Act has summarized in case titled Anter Singh v. State of Rajasthan (2004) 10 SCC 657 as under:
"16. The various requirements of the section can be summed up as follows:
1. The fact of which evidence is sought to be given must be relevant to the issue. It must be borne in mind that the provision has nothing to do with the question of relevancy. The relevancy of the fact discov-
ered must be established according to prescriptions relating to rel- evancy of other evidence connecting it with the crime in order to make the facts discovered admissible.
2. The fact must have been discovered.
3. The discovery must have been in consequence of some information received from the accused and not by the accused's own act.
4. The person giving the information must be accused of any offence.
5. He must be in the custody of a police officer.
6. The discovery of a fact in consequence of information received from an accused in custody must be deposed to.
7. Thereupon only that portion of the information which related dis- tinctly or strictly to the fact discovered can be proved. The rest is inadmissible."
FIR No. 307/2011 5 State Vs. Asif @ Lamboo etc. 32 of 57
21. It is further held in State of Maharashtra v. Damu (2000) 6 SCC 269 that:
"35. The basic idea embedded in section 27 of the Evidence Act is the doctrine of confirmation by subsequent events. The doctrine is founded on the principle that if any fact is discovered in search made on the strength of any information obtained from a prisoner, such a discovery is a guarantee that the information supplied by the prisoner is true. The information might be confessional or no exculpatory in nature, but if it results in discovery of a fact it becomes reliable information. Hence the legislature permitted such information to be used as evidence by restricting the admissible portion to the minimum."
22. In another case titled Prakash Chand v. State (Delhi Administration) (1979) 3 SCC 90, wherein the Court after referring to the decision in Himachal Pradesh Administration v. Om Prakesh (1972) 1 SCC 249, observed as under:
"There is a clear distinction between the conduct of a person against whom an offence is alleged, which is admissible under section 8 of the Evidence Act, if such conduct is influenced by any fact in issue or relevant fact and the statement made to a Police Officer in the course of an investigation which is hit by section 162 of the Criminal Procedure Code. What is excluded by section 162, Criminal Procedure Code is the statement made to a police officer in the course of investigation and not the evidence, relating to the conduct of an accused person (not amounting to a statement) when confronted or questioned by a police officer during the course of investigation.
For Example, the evidence of the circumstance, simpliciter, that an accused person led a police officer and pointed out the place where stolen articles or weapon which might have been used in the commission of the offence were found hidden, would be admissible as conduct, under section 8 of the Evidence Act, irrespective of whether any statement by the accused contemporaneously with or antecedent to such conduct falls within the purview of Section 27 of the Evidence Act."
FIR No. 307/2011 5 State Vs. Asif @ Lamboo etc. 33 of 57 In view of the above said law, it stands proved that recovery of any article is relevant, if it is made in pursuance of disclosure statement. Even if such recovery is not made in pursuance of section 27 of Evidence Act, then also it is admissible u/s 8 of Evidence Act as conduct of the accused. However, there is one caveat on this recovery or discovery of new fact u/s 27 of Evidence Act that it should be established beyond doubt that it was certainly made without any doubt. Not only this, recovery must be connected to the crime also.
23. Though Ld. APP for State has argued that this recovery is relevant and connected to this crime, yet this plea has to be ascertained from the material available on record. PW2 Shazia Zamani Shah has proved that the deceased left the house with a black and green colour bag containing ID card, one broom mike, purse having debit / credit card and two mobile phones. She has also identified the wrist watch and gold ring during TIP proceedings and also identified all recovered articles as Ex.P1 to Ex.P7. However, she has failed to produce any receipt of this watch, but has identified being gifted by her father in her marriage. Similarly, she has again failed to prove any receipt regarding the gold ring to prove its ownership. However, identification of this ring was/ is different on the different occasions. In initial statement u/s 161 CrPC, it was a ring with purple colour stone, whereas during statement before this court, it was a ring with a magenta colour stone, whereas during TIP proceedings, it was a gold ring with pink colour stone. As such, different description of same ring creates a doubt about the identity of this ring. On the other hand, prosecution has not proved any list of dowry articles thereby showing this FIR No. 307/2011 5 State Vs. Asif @ Lamboo etc. 34 of 57 gold ring and Titan watch to prove that those were gifted by the father of PW2 to her.
24. Similarly, the ownership of this ring also could not be verified by the IO and PW30 has duly admitted this fact. One receipt produced before the court has failed to prove the name of owner of this receipt and name of purchase is blank. In fact, it is doubtful that this ring belonged to the deceased. Though recovered gold ring was subjected to TIP proceedings, yet TIP proceedings are also not conclusive. TIP proceedings are not clear about the description of the other rings which were used during these TIP proceedings and description is lacking and only conclusion has been given regarding identification, which is not sufficient to conclude that the sufficient precautions were adopted during the TIP proceedings. One another fact is also material that this ring was allegedly stolen by the accused during this dacoity, but it is not clear as to how this ring reached to the bag allegedly robbed by the accused, as it was worn by the deceased as per the charge sheet as well as version of the PW2. Similarly, Titan watch was also worn by the deceased but still stolen from the same bag and recovered from the accused, which has created a doubt in the story of the prosecution.
25. Contrary to it, PW11 has proved that both the items i.e. watch and ring were recovered from the accused Afroz and Asif @ Mulla during their personal search and it may not be ruled out that these articles belonged to accused persons or someone else, as the prosecution has failed to prove the connection of both items to the deceased being easily available in free FIR No. 307/2011 5 State Vs. Asif @ Lamboo etc. 35 of 57 market. As such, all facts have suggested that false plantation of the recovered articles may not be ruled out.
26. Again, it is beyond explanation as to why accused kept the ATM cards of the deceased or his wife when they did not have passwords of such cards without which such ATMs cards were useless for them. Similarly, recovery of an admit card of the deceased from accused has corroborated that false plantation of recovered articles may not be ruled out. Though receipts of some articles have been proved by the PW6 which were seized vide seizure memo Ex.PW6/6, yet receipt Ex.PW6/1 is without description of any purchaser, whereas no receipt of watch has been proved. PW6 was also not aware about such ownership of this ring. In fact, any receipt without any description of purchaser and that too without any distinct mark and also available in market easily could not be connected to this crime. PW11 has duly admitted that such wrist watch make Titan is easily available in market and no identification mark was put on the watch after its recovery. As such, recovery of ring and watch could not be proved beyond doubt.
27. Though I have already observed that the proper precautions were not adopted during conducting of TIP proceedings of the recovered articles, yet TIP alone cannot be a ground to connect the accused to the recovery of stolen articles. TIP is just a corroborative evidence and is part of investigation only u/s 162 CrPC which is not an evidence in itself. Rather, it must be proved that the articles of which TIP was got conducted were actually stolen, but in the absence of any such evidence it cannot be said FIR No. 307/2011 5 State Vs. Asif @ Lamboo etc. 36 of 57 that the recovered article identified by the witness during TIP belonged to the witness. In the absence of any corroboration, TIP alone is not sufficient to prove the connection of the articles to the accused.
28. Similarly, the ETV mike is also not connected to this crime in any manner as no proof of its ownership has been proved. One bag was also recovered from accused Juber and alleged to be stolen property, but again it could not be that it was really stolen one or belonged to deceased. There is no proof to this effect. Even otherwise, it is beyond explanation as to why accused kept this bag or mike despite knowing to be of the stolen property of dacoity-cum-murder and hid it to get it recovered.
29. Further, the handicam was also recovered from the accused, which was a second hand one and PW17 Pradeep Kumar has proved one receipt of this handicam as Ex.PW6/2. He allegedly issued this receipt, but it could not be proved on record. PW17 allegedly purchased this handicam from one Kunal, but without any bill/ invoice. He has further failed to prove any stock register or any other proof that he purchased or owed this handicam before selling out to accused. Contrary to it, he was not aware in whose favor he issued this bill. On the other hand, there is additions in this bill and name of purchaser has been added and clearly visible by naked eyes. As such, none of the recovery could be connected to this crime.
30. Similarly, the mobile phone of the deceased allegedly recovered from the accused Shahid @ Pahari also could not be connected to the accused. Admittedly, this incident took place on 05/08/2011, whereas this recovery FIR No. 307/2011 5 State Vs. Asif @ Lamboo etc. 37 of 57 was made on 10/08/2011 and during this period accused did not try to dispose it off and rather was carrying with him in his pocket to get is recovered, which is not believable. Though he was carrying this mobile with him, yet there was no sim to use it. Even it is also beyond explanation as to why deceased was carrying two mobile phones, especially one was put in bag whereas there is no CDR of this phone that it was in working condition. As such, all accused persons committed this offence but still they were carrying all incriminating evidence with them for many days after the incident and no prudent man would believe it and false plantation may not be ruled out.
31. Besides it, two pistols have been seized at the instance of accused Asif @ Lamboo and Shahid @ Pahari and both were seized vide seizure memo Ex.PW12/F and Ex.PW14/B respectively. Though the recovery of these weapons is not beyond doubt in view of the testimonies of the PWs pertaining to the involvement of the accused, yet the use of these weapons could not be proved in any manner. No doubt, PW29 Dr. Neha Gupta has proved the postmortem report of the deceased Ex.PW29/A, as per which, she observed entry and exit wounds of the bullet and one bullet measures 3.1 x 0.7 cms with yellow colour jacket present all over except the nose of bullet and the anterior end flattereded on one side. One lacerated wound of size 0.1cm x bone deep present over left occipital region, 7 cms behind the left ear lobe and 8 cms from mid line was also observed. Cause of death - Hemorrhagic shock as a result of ante mortem injury to left femoral vessels produced by projective of fire arm was also opined, but it could not be connected to accused in any manner.
FIR No. 307/2011 5 State Vs. Asif @ Lamboo etc. 38 of 57
32. Further, the Ballistic Report of weapons viz-a-viz bullet recovered from the dead body of the deceased could not be matched to prove the use of the weapon recovered from both accused. The relevant observation in FSL report is as under:
The individual striation marks present on evidence deformed bullet marked exhibit 'EB1' were compared with recovered test bullets fired through country made pistols marked exhibit 'F1' & 'F2' under a comparison microscope. As a result, no opinion can be given whether the exhibit deformed bullet marked exhibit 'EB1' has been discharged through the exhibit country made pistols marked 'F1' & 'F2' due to insufficient data available on exhibit'EB1'.
After going through the abovesaid report, it stands proved that the use of the weapon could not be connected to the weapons recovered from the accused. Though this FSL report cannot be termed against the prosecution, yet it has to be read in consonance of other evidence on record which is lacking and FSL report has not proved the involvement of the accused to this offence.
33. Ld. Addl. PP for State has further argued that all the accused persons were dacoits and committed this offence and later on recovery of the stolen articles from their possession has proved that the presumption of section 114(a) of Evidence Act may be invoked against accused persons and it shall be presumed that they were robbers / dacoits and committed this during da- coity. However, this submission has been strongly opposed by the accused persons. Section-114 of Evidence Act is as under : -
Section 114. Court may presume existence of certain facts. -- The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course FIR No. 307/2011 5 State Vs. Asif @ Lamboo etc. 39 of 57 of natural events, human conduct and public and private busi- ness, in their relation to the facts of the particular case. Illustra- tions The Court may presume--
(a) That a man who is in possession of stolen goods soon after the theft is either the thief or has received the goods knowing them to be stolen, unless he can account for his possession;
34. The above said section came into interpretation in case titled Hatti Singh v. State of Haryana, (2007) 12 SCC 471 and relevant observation is under:
32.The learned counsel for the State would submit that recovery of the articles would raise a presumption under Section 114 of the Evidence Act. Application of such a presumption is limited.
A presumption may be in respect of commission of theft or receipt of stolen property; if a person is found to be in possession of the property belonging to the deceased, but on such presumption alone, the appellant could not have been convicted for commission of murder, particularly when on the same evidence other persons had been given benefit of doubt.
In view of the above said law, it stands proved that there is no presumption that a person found in possession of the stolen articles was robber or committed robbery or murder of the person who was subjected to such robbery/ dacoity.
35. Next plea taken by the Ld. APP for the State is that the accused persons refused for their TIPs and this fact suggests that they were robbers / dacoits and deliberately refused for TIP and adverse inference is bound to be drawn. However, this plea has no substance. Admittedly, TIP is part of investigation and is admissible u/s 9 of Evidence Act. The law to this effect FIR No. 307/2011 5 State Vs. Asif @ Lamboo etc. 40 of 57 was dealt with in case titled Iqbal v. State of U.P., (2015) 6 SCC 623 as under:
15. The evidence of identification of the miscreants in the test identification parade is not a substantive evidence. Conviction cannot be based solely on the identity of the dacoits by the witnesses in the test identification parade. The prosecution has to adduce substantive evidence by establishing incriminating evidence connecting the accused with the crime, like recovery of articles which are the subject-matter of dacoity and the alleged weapons used in the commission of the offence.
In view of the above said law, it stands proved that merely TIP is not sufficient to prove the identity of the accused, if there is no evidence against accused on record. No doubt, refusal of TIP by accused may invite an adverse inference, but such adverse inference may not take place of evidence. In this case, main witnesses have failed to prove the involvement of the accused to this case and just on the basis of adverse inference their testimonies may not be wiped out. This plea of Ld. APP for State has no substance.
36. Next argument of the Ld. Addl. PP for the State is that CDRs of the mobile phones of the accused have proved their involvement to this offence. However, again it is not a valid and plausible argument. First of all, CAFs of the mobile phones of the accused have proved that they were not carrying mobile connections in their own names except one or two, but still just on the basis of such CDRs, it cannot be said that they were dacoits. Secondly, the persons in whose names those mobile phones were issued have not been examined to prove that the accused were exclusively using those mobile connections. As such, CDRs are not sufficient to prove the FIR No. 307/2011 5 State Vs. Asif @ Lamboo etc. 41 of 57 involvement of the accused persons to this offence and prosecution has failed to prove the involvement of all accused persons u/s 396 IPC.
37. Section 397 IPC - Next charges against the accused Asif @ Lamboo and Shahid @ Pahari are u/s 397 IPC each. Admittedly, two pistols were recovered from both accused and this fact has been already been discussed. However, it is to be seen as to whether both accused used these weapons during incident or not. Section 397 IPC is as under:
Section 397. Robbery, or dacoity, with attempt to cause death or grievous hurt.--If, at the time of committing robbery or dacoity, the offender uses any deadly weapon, or causes grievous hurt to any person, or attempts to cause death or grievous hurt to any person, the imprisonment with which such offender shall be punished shall not be less than seven years.
38. Perusal of this section would show that the use of any deadly weapon or causing of grievous hurt or attempt to cause death or grievous hurt by deadly weapon during robbery or dacoity is punishable offence under this section. However, prosecution is bound to prove that the accused charged with this offence actually used this weapon during the incident. However, in this case, prosecution has failed to prove that all the accused or accused Asif @ Lamboo and Shahid @ Pahari committed the murder of deceased Akarm during this dacoity by using such weapons. In the absence of any evidence regarding involvement of both accused to the main offence, it could not be proved that such weapons, as shown to be recovered by the police, were actually used during this incident. FSL report has also failed to prove such FIR No. 307/2011 5 State Vs. Asif @ Lamboo etc. 42 of 57 use of weapons as well. As such, offences u/s 397 IPC also could not be proved against both accused.
39. Section - 412 IPC - The next charge against accused persons is u/s 412 IPC. Ld. APP for the State has argued that multiple recoveries were made from accused persons or at their instance which belonged to the deceased but accused kept those stolen articles and they are liable for the offence u/s 412 IPC. On the other hand, Ld. Counsel for the accused have countered this argument that no such recovery was effected from the possession of any accused and all the recoveries were planted upon the accused and all the accused are liable to be acquitted.
40. I have heard the arguments and perused the record. Admittedly, multiple recoveries were made from the possession of the accused persons except Asif @ Lamboo. I have already discussed regarding the recovery of Titan watch, gold ring, ETV mike, bag and mobile etc. from the accused persons or at their instance. However, before proceedings further, it is necessary to go through the legal requirement of the section 412 IPC as under:
412. Dishonestly receiving property stolen in the commission of a dacoity.--Whoever dishonestly receives or retains any stolen property, the possession whereof he knows or has reason to believe to have been transferred by the commission of dacoity, or dishonestly receives from a person, whom he knows or has reason to believe to belong or to have belonged to a gang of dacoits, property which he knows or has reason to believe to have been stolen, shall be punished with 1[imprisonment for life], or with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine.
FIR No. 307/2011 5 State Vs. Asif @ Lamboo etc. 43 of 57 Perusal of this section would show that the possession of the stolen property, as defined u/s 410 IPC, with knowledge or having reason to believe that the property was stolen property of dacoity or belonged to gang of dacoits, are necessary ingredients to prove this offence against the accused.
41 This section came into interpretation in case titled from Iqbal v. State of U.P., (2015) 6 SCC 623 and the relevant observation is as under:
10. This leaves us to consider the only other circumstance available to the prosecution to establish its case as against the appellants, that is the factum of recovery of huge quantity of gold jewellery and other articles belonging to the deceased from the house of the appellants at their instance. There seems to be divergence of opinion of this Court in regard to the legal position whether a conviction can solely be based for a larger offence than theft or for receiving stolen property in case where the prosecution relies solely on the recovery made. From a perusal of the judgments cited before us it is seen that this Court has in some cases on being fully satisfied as to the proof of recovery and on the facts of particular cases has held that a conviction for a larger offence can also be based solely on such recoveries. But there are also a line of judgments relied on by the learned counsel for the appellants, especially in the case of Limbaji [(2001) 10 SCC 340 : 2002 SCC (Cri) 1044] this Court has held that it may not be safe to place reliance on the sole evidence of recovery to base a conviction for a larger offence. In this line of judgments this Court has held that it would be safer to look for corroboration from other sources to establish the larger guilt of the accused rather than proceed to convict for such larger offence solely based on a recovery.
17. In order to bring home the guilt of the accused persons, it is the duty of the prosecution to prove that the stolen property was in the possession of the accused persons or that the accused had knowledge that the property was a stolen property or the accused persons had converted the stolen property. No such FIR No. 307/2011 5 State Vs. Asif @ Lamboo etc. 44 of 57 recovery was made to connect the appellants and other non-
appealing accused persons with the crime.
In view of the above said, it stands proved that it is the mandatory requirement of this section that it must be proved that accused had knowledge that the recovered articles belonged to the gang of dacoits or he had reason to believe this fact, which is lacking in this case. Even for the purpose of proving an offence u/s 411 IPC, recovery of the stolen articles from the accused persons is not beyond doubt and evidence of PWs is not reliable to this effect. As such, prosecution has failed to prove that the accused persons were found in possession of the stolen articles despite knowing to be the stolen property.
42. Section 25 of Arms Act- This charge has been invoked against accused Asif @ Lamboo and Shahid @ Pahari separately for the illegal possession of the two separate country made pistols from them. However, before dealing with the merit of the charge, the legal requirements of invoking of this section have to be seen as under:
Section -25. Punishment for certain offence - [(1) Whoever--
(a) -[manufactures, obtains, procures,] sells, transfers, converts, repairs, tests or proves, or exposes or offers for the sale or transfer, or has in his possession for sale, transfer, conversion, repair, test or proof, any arms or ammunition in contravention of Section 5; or
(b) shortens the barrel of a firearm or converts an imitation firearm into a firearm- [or convert from any category of FIR No. 307/2011 5 State Vs. Asif @ Lamboo etc. 45 of 57 firearms mentioned in the Arms Rules, 2016 into any other category of firearms] in contravention of Section 6; or
(c)[* * *]
(d) brings into, or takes out of, India, any arms or ammunition of any class or description in contravention of Section 11, shall be punishable with imprisonment for a term which shall not be less than - [seven years but which may extend to imprisonment for life] and shall also be liable to fine.
[(1-A) Whoever acquires, has in his possession or carries any prohibited arms or prohibited ammunition in contravention of Section 7 shall be punishable with imprisonment for a term which shall not be less than [seven years but which may extend to fourteen years] and shall also be liable to fine:
[Provided that the Court may, for any adequate and special reasons to be recorded in the judgment, impose a sentence of imprisonment for a term of less than seven years.] [(1-AB) Whoever, by using force, takes the firearm from the police or armed forces shall be punishable with imprisonment for a term which shall not be less than ten years but which may extend to imprisonment for life and shall also be liable to fine.] (1-AA) Whoever manufactures, sells, transfers, converts, repairs, tests or proves, or exposes or offers for sale or transfer or has in his possession for sale, transfer, conversion, repair, test or proof, any prohibited arms or prohibited ammunition in contravention of Section 7 shall be punishable with imprisonment for a term which shall not be less than [ten years] but which may extend to imprisonment for life and shall also be liable to fine.] FIR No. 307/2011 5 State Vs. Asif @ Lamboo etc. 46 of 57 [(1-AAA)] Whoever has in contravention of a notification issued under Section 24-A in his possession or in contravention of a notification issued under Section 24-B carries or otherwise has in his possession, any arms or ammunition shall be punishable with imprisonment for a term which shall not be less than [three years, but which may extend to seven years] and shall also be liable to fine.
(1-B) Whoever--
(a) acquires, has in his possession or carries any firearm or ammunition in contravention of Section 3; or
(b) acquires, has in his possession or carries in any place specified by notification under Section 4 any arms of such class or description as had been specified in that notification in contravention of that Section; or
(c) sells or transfers any firearm which does not bear the name of the maker, manufacturer's number or other identification mark stamped or otherwise shown thereon as required by sub-
section (2) of Section 8 or does any act in contravention of sub- section (1) of that section ; or
(d) being a person to whom sub-clause (ii) or sub-clause (iii) of clause (a) of sub-section (1) of Section 9 applies, acquires, has in his possession or carries any firearm or ammunition in contravention of that section ; or
(e) sells or transfers, or converts, repairs, tests or proves any firearm or ammunition in contravention of clause (b) of sub- section (1) of Section 9; or
(f) brings into, or takes out of, India, any arms or ammunition in contravention of Section 10; or
(g) transports any arms or ammunition in contravention of Section 12; or FIR No. 307/2011 5 State Vs. Asif @ Lamboo etc. 47 of 57
(h) fails to deposit arms or ammunition as required by sub- section (2) of Section 3, or sub-section (1) of Section 21; or
(i) being a manufacturer of, or dealer in, arms or ammunition, fails, on being required to do so by rules made under Section 44, to maintain a record or account or to make therein all such entries as are required by such rules or intentionally makes a false entry therein or prevents or obstructs the inspection of such record or account or the making of copies of entries therefrom or prevents or obstructs the entry into any premises or other place where arms or ammunition are or is manufactured or kept or intentionally fails to exhibit or conceals such arms or ammunition or refuses to point out where the same are or is manufactured or kept, shall be punishable with imprisonment for a term which shall not be less than- [two years but which may extend to five years and shall also be liable to fine] and shall also be liable to fine:
Provided that the Court may for any adequate and special reasons to be recorded in the judgment impose a sentence of imprisonment for a term of less than [two year].
[(1-C) Notwithstanding anything contained in sub-section (1-B), whoever commits an offence punishable under that sub-section in any disturbed area shall be punishable with imprisonment for a term which shall not be less than three years but which may extend to seven years and shall also be liable to fine.
Explanation.--For the purposes of this sub-section, "disturbed area" means any area declared to be a disturbed area under any enactment,for the time being in force, making provision for the suppression of disorder and restoration and maintenance of public order, and includes any areas specified by notification underSection 24-A or Section 24-B.] FIR No. 307/2011 5 State Vs. Asif @ Lamboo etc. 48 of 57 (2) Whoever being a person to whom sub-clause (i) of clause (a) of sub-section (1) of Section 9 applies, acquires, has in his possession or carries any firearm or ammunition in contravention of that section shall be punishable with imprisonment for a term which may extend to one year, or with fine, or with both.
[(3) Whoever sells or transfers any firearm, ammunition or other arms -
(i) without informing the district magistrate having jurisdiction or the officer in charge of the nearest police station, of the intended sale or transfer of that firearm, ammunition or other arms; or
(ii) before the expiration of the period of forty-five days from the date of giving such information to such district magistrate or the officer in charge of the police station, in contravention of the provisions of clause (a) or clause (b) of the proviso to sub-section (2) of Section 5, shall be punishable with imprisonment for a term which may extend to six months, or with fine of an amount which may extend to five hundred rupees, or with both.] (4) Whoever fails to deliver-up a licence when so required by the licensing authority under sub-section(1) of Section 17 for the purpose of varying the conditions specified in the licence or fails to surrender a licence to the appropriate authority under sub-section (10) of that section on its suspension or revocation shall be punishable with imprisonment for a term which may extend to six months, or with fine of an amount which may extend to five hundred rupees, or with both.
(5) Whoever, when required under Section 19 to give his name and address, refuses to give such name and address or gives a FIR No. 307/2011 5 State Vs. Asif @ Lamboo etc. 49 of 57 name or address which subsequently transpires to be false shall be punishable with imprisonment for a term which may extend to six months, or with fine of an amount which may extend to two hundred rupees, or with both.
[(6) If any member of an organised crime syndicate or any person on its behalf has at any time has in his possession or carries any arms or ammunition in contravention of any provision of Chapter II shall be punishable with imprisonment for a term which shall not be less than ten years but which may extend to imprisonment for life and shall also be liable to fine.
(7) Whoever on behalf of a member of an organised crime syndicate or a person on its behalf,--
(i) manufactures, obtains, procures, sells, transfers, converts, repairs, tests or proves, or exposes or offers for sale or transfer, conversion, repair, test or proof, any arms or ammunition in contravention of Section 5; or
(ii) shortens the barrel of a firearm or converts an imitation firearm into a firearm or converts from any category of firearms mentioned in the Arms Rules, 2016 into any other category of firearms in contravention of Section 6; or
(iii) brings into, or takes out of India, any arms or ammunition of any class or description in contravention of Section 11, shall be punishable with imprisonment for a term which shall not be less than ten years but which may extend to imprisonment for life and shall also be liable to fine.
Explanation.--For the purposes of sub-section (6) and (7),--
(a) "organised crime" means any continuing unlawful activity by any person, singly or collectively, either as a member of an organised crime syndicate or on behalf of such syndicate, by use of violence or threat of violence or intimidation or coercion, or FIR No. 307/2011 5 State Vs. Asif @ Lamboo etc. 50 of 57 other unlawful means, with the objective of gaining pecuniary benefits, or gaining undue economic or other advantage for himself or any person;
(b) "organised crime syndicate" means a group of two or more persons who, acting either singly or collectively, as a syndicate or gang indulge in activities of organised crime.
(8) Whoever involves in or aids in the illicit trafficking of firearms and ammunition in contravention of Section 3, 5, 6, 7 and 11 shall be punishable with imprisonment for a term which shall not be less than ten years but which may extend to imprisonment for life and shall also be liable to fine.
Explanation.--For the purposes of this sub-section, "illicit trafficking" means the import, export, acquisition, sale, delivery, movement or transfer of firearms and ammunition into, from or within the territory of India, if the firearms and ammunition are not marked in accordance with the provisions of this Act or are being trafficked in contravention of the provisions of this Act including smuggled firearms of foreign make or prohibited arms and prohibited ammunition.
(9) Whoever uses firearm in a rash or negligent manner or in celebratory gunfire so as to endanger human life or personal safety of others shall be punishable with an imprisonment for a term which may extend to two years, or with fine which may extend to rupees one lakh, or with both.
Explanation.--For the purposes of this sub-section, "celebratory gunfire" means the practice of using firearm in public gatherings, religious places, marriage parties or other functions to fire ammunition.] FIR No. 307/2011 5 State Vs. Asif @ Lamboo etc. 51 of 57 Section-39. Previous sanction of the district magistrate necessary in certain cases.--No prosecution shall be instituted against any person in respect of any offence under section 3 without the previous sanction of the district magistrate.
43. A joint reading of both sections would show that the prosecution u/s 25 of Arms Act is barred without a necessary sanction u/s 39 of the Act from the District Magistrate (DCP in Delhi) concerned. In fact, cognizance is not supposed to be taken, if mandatory sanction u/s 39 of the Act is not accorded by the competent authority. In this case, my attention has been drawn towards the sanction (Ex.PW32/A) which was accorded by the DCP concerned on 06/03/2012 against the recovery of weapons on 09/08/2011. Perusal of the charge sheet would show that charge sheet was filed against the accused persons on 05/11/2011, but cognizance was taken only u/s 302/392/397/120B/34 IPC, but there was no cognizance of the offences under sections 25/27 of Arms Act. This case committed to the Sessions on 06/01/2012, but, by that time, neither any supplementary charge sheet was filed nor cognizance of the offences u/s 25/27 of Arms Act was taken and file committed to the Sessions and even FSL report and sanction were filed before this court directly, which cannot be said in consent with law.
44. Charges u/s 25/27 of Arms Act were framed against the accused on 07/03/2012 but sanction u/s 39 of Arms Act as well as FSL report of Ballistic Division had already been filed prior to it. However, no formal supplementary charge sheet was filed to afford an opportunity to the court to take cognizance of such offences. As such, cognizance was supposed to be taken specifically u/s 25/27 of Arms Act, if sanction was accorded, but FIR No. 307/2011 5 State Vs. Asif @ Lamboo etc. 52 of 57 order sheets are silent about it and the prosecution of the accused may be defective.
45. The charges against the accused Asif @ Lamboo and Shahid @ Pahari are pertaining to the possession of illegal weapons. Accused Asif @ Lamboo was arrested vide arrest memo Ex.PW12/B and search memo Ex.PW12/C. Accused was found in possession of one country made pistol which was seized vide seizure memo Ex.PW12/F and its sketch is Ex.PW12/E. Accused also made his disclosure statement Ex.PW12/D. Similarly, accused Shahid @ Pahari was arrested vide arrest memo Ex.PW14/G and personal search memo Ex.PW12/G1. Accused was found in possession of illegal weapon of which Sketch is Ex.PW14/A and weapon was seized vide seizure memo Ex.PW14/B. Accused made his disclosure statement Ex.PW14/E. The use of both weapons could not be proved during this offence by oral or medical evidence, but the facts disclosed in the confession of accused also could not be corroborated. The recovery of weapons also could not be proved in terms of section 27 of Evidence Act, as both accused were found in possession of the alleged weapons when they were apprehended and did not disclose any information in their disclosure statements which led to this recovery. However, recovery may be relevant u/s 8 of Evidence Act, but cannot be sole ground to connect the accused to this offence, until and unless it is proved that recovery was reliable. Similarly, the bar of license for possession of illegal weapon may be invoked only, if possession is proved beyond doubt, which could not be proved in this case.
FIR No. 307/2011 5 State Vs. Asif @ Lamboo etc. 53 of 57
46. Admittedly, accused Asif @ Lamoo and Shahid @ Pahari were arrested on the basis of secret information about their presence, but no such secret information or DD entry has been proved to prove that any such information was ever received by the PS / IO regarding the presence of the accused at the spot of their arrest. Accused Asif was arrested on 11/09/2011 by IO in the presence of SI Satender Singh, but testimonies of SI Satender Singh and IO Inspector Yogesh Malhotra would show that their testimonies have material contradictions. PW12 has deposed that the secret informer met police team at Peeli Mitti, Janta Colony, whereas he did not remember when the secret informer left the spot, on the other hand, IO he did not prepare any site plan of the spot of arrest as well as recovery of the weapons. Even PW30 has admitted that public persons were present there, but still no public person got joined into proceedings. It is pertinent to mention here that accused Asif @ Lamboo was arrested at about 6:45 pm, but still shops situated nearby were shut as deposed by PW30 and rather, he was not aware what type of shops were running there. Even PW12 has duly admitted that no distinct mark was put on the pistol after recovery from the accused to distinguish from the other easily available and all such facts proved that recovery of weapon of offence was not beyond doubt.
47. Similarly, PW14 has proved the arrest as well as recovery at the instance of accused Shahid @ Pahari, but again his testimony would show that he has admitted that secret informer left the spot at about 3:00 pm but he remained present with them till the arrest of the accused and pointed out accused from a distance of about 40-50 yards. It is beyond explanation, if the secret informer remained with police team throughout and till the arrest FIR No. 307/2011 5 State Vs. Asif @ Lamboo etc. 54 of 57 of accused, then why he was not citied witness to this case, as his secrecy had already been revealed to the accused when he came face to face to them and there was no purpose of hiding his identity. Even otherwise, PW14 has deposed that SHO received the information regarding the presence of accused Shahid @ Pahari and Shehjad @ Danish and arrested them but neither site plan was prepared nor secret information was recorded by IO to authenticate his story. Even no distinguished mark was put on the weapons to distinguish from the others easily available. As such, all facts have proved that recovery of the weapons could not be proved.
48. Admittedly, requirement of public persons to join investigation cannot be over emphasized in view of present scenario, but such requirement become necessary when the case of the police is not supported by the eye witnesses. Similarly, site plan of the spot of arrest and recovery of any weapon of offence as well as recording of DD entries during investigation also become relevant to rule out false implication of the accused. In this case, IO has carried out most of the investigation beyond the jurisdiction of his PS without following the due process of information to the concerned PS before arrest and carry out recoveries from the accused persons. Site plan becomes significant, if drawn to prove the actual location of the accused at the time of his arrest and recovery, but in this case, PW30 has duly proved that he did not prepare any such site plan. The country made pistols which have been shown to be recovered from accused were seized and sealed without distinct mark and it became relevant when IO also kept his seal with him after its use, which may not rule out any tempering, especially when entries of the MHC(M) were also found FIR No. 307/2011 5 State Vs. Asif @ Lamboo etc. 55 of 57 tempered. As such, prosecution has failed to prove these charges against the accused.
49. Section 27 of Arms Act - Section 27 of Arms Act has defined that use of any arms and ammunition in contravention of section 5 / 7 shall be punishable under section 27 of Arms Act. The relevant section is as under:
27. Punishment for using arms, etc.--
(1) Whoever uses any arms or ammunition in contravention of section 5 shall be punishable with imprisonment for a term which shall not be less than three years but which may extend to seven years and shall also be liable to fine.
(2) Whoever uses any prohibited arms or prohibited ammunition in contravention of section 7 shall be punishable with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life and shall also be liable to fine. (3) Whoever uses any prohibited arms or prohibited ammunition or does any act in contravention of section 7 and such use or act results in the death of any other person, shall be punishable with death.]
50. Perusal of the section would make it clear that weapon must be a prohibited weapon u/s 5 and 7 of Arms Act and must be used in contravention of the above said sections only then this offence is made out. In this case, it could not be proved that the accused were found in illegal possession of any weapon in contravention of section 3 of the Act or they acquired weapons in contravention of section 5/7 of Arms Act and used those weapons against the injured/ victim. Testimonies of prosecution witnesses have failed to prove that both the accused namely Asif @ Lamboo and Shahid @ Pahari acquired or used these weapons in FIR No. 307/2011 5 State Vs. Asif @ Lamboo etc. 56 of 57 contravention of section 3/5/7 of Arms Act. Rather, their involvement to the dacoity-cum-murder could not be proved in any manner.
51. Keeping in view the facts and circumstances of this case, I am of the considered opinion that prosecution has failed to prove the charges under section 396/397/412 IPC and section 25/27 of Arms Act against the accused persons and their involvement could not be proved. All the accused are hereby acquitted of all charges. Their Bail Bonds cancelled. Sureties discharged. In case, any accused is in JC, he may be released immediately, if not required in any other case.
52. All accused have furnished their surety bonds u/s 437A CrPC and the same are accepted for a period of 6 months with directions to appear before the appellant court, in case of filing of any appeal against this judgment.
53. File be consigned to record room after due compliance.
Digitally signed by DEVENDRA DEVENDRA KUMAR
KUMAR Date:
2022.05.21
16:48:32 +0530
Announced in open court (Devender Kumar)
Today on 21.05.2022 Addl. Sessions Judge-02 (NE)
Karkardooma Court/Delhi
FIR No. 307/2011 5 State Vs. Asif @ Lamboo etc. 57 of 57