Delhi District Court
State vs . Nitesh Yadav Etc. Fir 438/14 ... on 30 November, 2017
State Vs. Nitesh Yadav Etc. FIR 438/14 (57217/2016)
IN THE COURT OF SHRI MANISH YADUVANSHI
ADDITIONAL SESSIONS JUDGE 05: WEST : DELHI.
IN THE MATTER OF
Case No. 57217/16
FIR No. 438/14
PS Janak Puri
U/s 307/34 IPC & 30 Arms Act
STATE
VERSUS
1. NITESH YADAV
S/O SH. LAL SINGH
R/O C5A/264, JANAK PURI
DELHI.
2. LOVE @ LAKSHAY
S/O LATE SH. NARENDER SINGH
R/O RZK25, GANDHI MARKET
WEST SAGARPUR, DELHI
Date of Institution : 10.02.2016
Date of Reserving Judgment : 21.11.2017
Date of Judgment : 30.11.2017
Result: Acquitted Page 1 of 32
State Vs. Nitesh Yadav Etc. FIR 438/14 (57217/2016)
JUDGMENT
1. The accused namely Nitesh Yadav has been facing trial for the
offences punishable U/s 307/34 IPC and Section 30 of the Arms
Act 1959 while accused Love @ Lakshay has been facing trial for the
offence punishable U/s 307/34 IPC.
FACTS :
2. Facts leading to the Prosecution's case are as under :
2.1. On 19.4.2014, information was received at Police Station Janak Puri on telephone at about 11.50 p.m. regarding a firing incident and it was recorded vide DD No. 77B (ExPW6/A). Inquiry was assigned to SI Arun Kumar (PW 6) who reached at the informed place i.e. Metro Family Rasoi Vidhya Marg, Janak Puri, Delhi where he met HC S.S Rao (dropped on 25.10.2016) and Ct. Ajeet (PW 5). The eta nary was found closed. No other person was found at the spot and the informant's mobile phone was not responding. No clue was found.
Thus the police party came back to the police station.
Result: Acquitted Page 2 of 32State Vs. Nitesh Yadav Etc. FIR 438/14 (57217/2016) 2.2. After some time, one Jagrit (Complainant) S/o Sh. Gullu Malik (PW1) came to the police station with his friend Himanshu Chauhan (PW2). Jagrit made a statement (ExPW1/A) that was recorded by SI Arun Kumar disclosing that he had come to the place of incident from the house of his sister at 11 p.m on 19.4.2014 with his friends Himanshu Chauhan, Rajat Goel (PW3) and Jasmeet Singh (PW4) to have dinner at Metro Family Rasoi but it had closed for the day. They were talking amongst themselves near the Mother Dairy. The complainant was talking loudly on his phone and nearby to him a Swift car, colour white bearing registration no. DL 9C Q 9596 was parked and two boys were eating food. The boy on the driver seat, who was apparently inebriated, called the complainant who was wearing red shirt. The complainant refused which resulted into an argument upon which the car driver took out a pistol (ExP1) and threatened the complainant that he will be killed if he does not obey. When complainant's friend saw the pistol, his three friends started running away when the car driver fired upon them. All of them escaped from the spot and complainant informed the police after a while.
Result: Acquitted Page 3 of 32State Vs. Nitesh Yadav Etc. FIR 438/14 (57217/2016) 2.3. Upon this statement, a tehrir (ExPW6/B) was prepared and FIR (ExPW9/A) was got registered under Section 307/34 IPC which was registered by the duty officer HC (now ASI) Jai Singh (PW9) who also made an endorsement on the FIR (ExPW6/B). Investigation was assigned to SI Arun Kumar.
2.4. The police party reached the place of incident and prepared a site plan (ExPW6/D) at the instance of complainant. On search of the area, SI Arun Kumar found used cartridge (ExPS) which was seized vide memo (ExPW1/D).
2.5. Inquiry revealed that accused Nitesh Yadav (A1) was residing in a nearby house no. C5A/65D Janak Puri. There, a white Swift car was found parked outside this house which was identified by the complainant. A1 was present outside his house and identified by the complainant as one of the assailant. SI Arun seized the car vide memo ExPW1/C and arrested the A1 vide memo ExPW1/F and conducted his personal search as per memo ExPW6/D. Result: Acquitted Page 4 of 32 State Vs. Nitesh Yadav Etc. FIR 438/14 (57217/2016) 2.6 At the instance of A1 the pistol (ExP1) used to commit the crime was recovered from an almirah in A1's house. A1 also produced three live cartridges (ExC1 collectively). Sketch of the gun ExPW6/E was prepared. The pistol (ExP1) was taken into possession after taking its measurement alongwith the cartridges vide a memo ExPW1/H. The disclosure statement of A1 (ExPW6/F) was recorded.
2.7. In pursuance to it, A1 led the police party to the house of co accused in Sagarpur, Delhi which led to the arrest of accused Love @ Lakshay (A2) vide memo ExPW1/G. His personal search was conducted as per memo ExPW6/G. 2.8. A1 had produced a gun license (ExPAL) in his name and his father's name which was also taken into police possession vide memo ExPW1/E which was valid till 22.11.16. Case property was deposited in police malkhana. FSL form was prepared. Supplementary statement of complainant ExPW6/H was recorded. Statement of Himanshu Chauhan ExPW6/J was also recorded besides the Result: Acquitted Page 5 of 32 State Vs. Nitesh Yadav Etc. FIR 438/14 (57217/2016) statements of other police witnesses.
2.9 A1 was taken to Safdarjung hospital for traces of Gun Shot Residue (GSR) and the samples (ExS1 collectively) were obtained, sealed and seized vide memo ExPW6/K which were duly deposited in intact condition in police malkhana.
2.10. On 22.4.2014 statement of Jasmeet (ExPW6/L) and statement of Rajat (ExPW6/M) were recorded. Case properties were deposited with FSL by the IO vide Road Certificate Mark PW6/O from which the GSR sample had to be struck out as it was not accepted by the FSL as 'body control sample' was not taken alongwith the GSR. Further investigation was transferred to another IO but the exhibits were deposited by PW 6 only after his transfer. The charge sheet was accordingly filed after addition of Section 30 of the Arms Act, 1959.
3. On 22.3.2016, A1 and A2 were served a formal charge that on 19.4.2014 at about 11 p.m, near Metro Family Restaurant, Vidhya Marg, Janak Puri Delhi, they, in furtherance of their common intention, fired a shot aiming Sh Jagrit and his associates Himanshu Result: Acquitted Page 6 of 32 State Vs. Nitesh Yadav Etc. FIR 438/14 (57217/2016) Chauhan and Jasmeet Singh with such intention or knowledge and under such cirucumstances that if the firing cause their death, they would have been guilty of murder and thus they were asked to face trial for commission of offence punishable under Section 307/34 IPC.
3.1 A1 was also charged separately under Section 30 of the Arms Act as on the given place, date and time, the gun used by him for firing which was duly licensed, was used against the terms of the said license.
4. Both A1 and A2 pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE
5. To prove its case, the prosecution, in total, has examined 10 witnesses out of a list of 13 PWs including the MHC(M) concerned and Sh V.R Anand, AD (Ballistic) FSL Rohini.
6. The prosecution dropped HC S.S Rao and Ct Sunil from the list of PWs as their testimony was similar to the testimony of PW 5 (Ct Ajeet) and PW 6 (SI Arun Kumar) on 25.10.2016. The gist of such evidence is as under:
Result: Acquitted Page 7 of 32State Vs. Nitesh Yadav Etc. FIR 438/14 (57217/2016) Sr. Name of the witness Nature No. PW1 Sh Jagrit Malik/Complainant Oral evidence regarding incident dated 19.4.2014.
Hostile to the prosecution.
Compromised with the accused persons.
Cross examined by the State in which he affirms:
(i) Statement ExPW1/A,
(ii)Went with his friends to eat dinner at the given place, date and time
(iii) Affirms about gossiping
(iv) Affirms that accused were taking dinner in their car
(v)Does not remember registration number of the car
(vi)Denies that A1 made any objection or any arguments took place
(vii)Denies supplementary statement and its contents.
(viii) Fails to identify A1 and A2 in the Court
(ix)Denies signatures on seizure memo of car ExPW1/C; seizure Memo of used Result: Acquitted Page 8 of 32 State Vs. Nitesh Yadav Etc. FIR 438/14 (57217/2016) cartridge, seizure of Arms License despite his signatures thereupon.
(x) Affirms arrest of A1 and A2 and his signatures on arrest memos.
(xi)Denies recovery of Pistol ExP1 and three cartridges ExC1 collectively.
(xii)Denies further investigation regarding the Arms ammunition.
PW2 Sh Himanshu Chauhan (friend Oral evidence regarding incident dated of complainant) 19.4.2014.
Hostile to the prosecution.
Compromised with the accused persons.
Cross examined by the State in which he;
(i) Denies his statement MarkPW2/A,
(ii)Affirms visit with his friends to the Restaurant at the given date
(iii)Affirms that it was closed and they were gossiping.
(iv)Affirms that A1 and A2 were having dinner in their car.
(v)Does not remember its registration number.
(vi)Denies any incident between A1 and PW1.
(vii)Denies user of any pistol by accused persons.
Result: Acquitted Page 9 of 32State Vs. Nitesh Yadav Etc. FIR 438/14 (57217/2016) PW3 Sh Rajat Goel (friend of Oral evidence regarding incident complainant) dated 19.4.2014.
Hostile to the prosecution.
Compromised with the accused persons.
Cross examined by the State in which he;
(i) Denies his statement MarkPW3/A,
(ii)Affirms visit with his friends to the Restaurant at the given date
(iii)Affirms that it was closed and they were gossiping.
(iv)Affirms that A1 and A2 were having dinner in their car.
(v)Does not remember its registration number.
(vi)Denies any incident between A1 and PW1.
(vii)Denies user of any pistol by accused persons.
Result: Acquitted Page 10 of 32State Vs. Nitesh Yadav Etc. FIR 438/14 (57217/2016) PW4 Sh Jasmeet Singh (friend Oral evidence regarding incident of complainant) dated 19.4.2014.
Hostile to the prosecution.
Compromised with the accused persons.
Cross examined by the State in which he;
(i) Denies his statement MarkPW4/A,
(ii)Affirms visit with his friends to the Restaurant at the given date
(iii)Affirms that it was closed and they were gossiping.
(iv)Affirms that A1 and A2 were having dinner in their car.
(v)Does not remember its registration number.
(vi)Denies any incident between A1 and PW1.
(vii)Denies user of any pistol by accused persons.
Result: Acquitted Page 11 of 32State Vs. Nitesh Yadav Etc. FIR 438/14 (57217/2016) PW5 Ct Ajeet Kumar(witness in Proves ExPW1/D (seizure investigation with IO on memo of used cartridge) 20.4.2014) Arrest of A1(memo ExPW1/F), Seizure of pistol and cartridges (memo ExPW1/H), Seizure memo of car (ExPW1/C), Seizure memo of clothes of A1 (ExPW5/A), Seizure memo of Gun license (ExPW1/E), Arrest of A2(ExPW1/G), Used Cartridges (ExPS), Pistol (ExP1), Three cartridges (one live) (ExC1 collectively).
Result: Acquitted Page 12 of 32State Vs. Nitesh Yadav Etc. FIR 438/14 (57217/2016) PW6 SI Arun Kumar (IO) Deposed about the investigation made by him on 19.4.2014, 20.4.2014 and 22.4.2014 till November/December 2014 Proves preparation of documents already proved by other PWs (ExPW6/A), Endorsement (ExPW6/B), Site Plan (ExPW6/D), Sketch of pistol (ExPW6/E), Disclosure by A1 (ExPW6/F) Statement of complainant and his friends Gun Shot Residue (GSR) samples (Memo ExPW6/K) Request letter to FSL (ExPW6/N) Road Certificate (ExPW6/O) & Case property.
PW7 Sh V.R Anand, Asstt. Director Proves his FSL examination report
(Ballistic) FSL ExPW7/A.
PW8 SI Ganga Ram (Second IO) Filed the charge sheet.
PW9 ASI Jai Singh (Duty Officer) Proves the FIR (ExPW9/A)
Certificate U/s 65 of I.E.A
(ExPW9/B),
Endorsement on tehrir (ExPW6/B) at
point A.
Result: Acquitted Page 13 of 32
State Vs. Nitesh Yadav Etc. FIR 438/14 (57217/2016)
PW10 Dr. Sandeep Sharma, SMO, Proves MLC No. 72066 of A1 Safdarjang Hospital Deposed (ExPW10/A) with respect to GSR. on behalf of Dr. P.Owais Iqbal
7. Thereafter, statement of accused persons U/s 313 Cr.P.C. was recorded. All the incriminating evidence was put to the accused persons.
8. The accused Love @ Lakshay has denied the case of the prosecution and has taken defence that he is innocent. He denies that any scuffle/quarrel took place as alleged. He claimed false implication in this case.
9. Accused Nitesh Yadav admits that on 19.4.2014 at about 11 p.m, PW 1 Jagrit Malik had visited Metro Family Rasoi in C6B Janak Puri with his friends/PWs 2, 3 & 4 but the Restaurant was closed and that they were gossiping near the Mother Dairy. However, he clarifies that there was no verbal argument that took place. He further denies that he and coaccused Love @ Lakshay were taking dinner in the car as the Restaurant had already closed. He denied to have fired any shot as alleged. He denies that the IO/PW 6 had found used cartridge ExPS at the place of incident which was seized vide memo ExPW1/D and submitted that the said cartridge was seized at his Result: Acquitted Page 14 of 32 State Vs. Nitesh Yadav Etc. FIR 438/14 (57217/2016) house after the gun ExP1 was fired by the IO in order to create false evidence. He denies to have fired any shot on the day of the incident. He does not deny that he was arrested in this case but claims false implication. According to him, he had himself given his pistol (ExP
1) to the police alongwith 30 live cartridge instead of three as alleged. He also admits that he had himself handed over the Arms License ExPAL to the police. According to him, no Gun Shot Residue (GSR) was collected from his hands. As per him, the police had fired one shot from his pistol (ExP1) on their own at the roof of his house and the said empty cartridge has been used to frame him in this case. He claims that police had demanded bribe which he did not give and therefore falsely implicated in this case.
10. I have heard Sh.B.B.Bhasin, ld.Addl. P.P.for the State, Sh. Rakesh Malhotra, ld. Counsel for accused Nitesh Yadav and Sh Naman Gauba, ld counsel for accused Love @ Lakshay.
11. According to the prosecution, the witnesses turned hostile resulting into impacting the case of the prosecution for offence punishable under Section 307/34 IPC. It is urged that the presence of accused persons on the spot has been proven and that PW 1 has admitted that the police had recorded his initial statement ExPW1/A Result: Acquitted Page 15 of 32 State Vs. Nitesh Yadav Etc. FIR 438/14 (57217/2016) on which he also identified his signatures at point A. It is therefore, urged that the Court may accordingly hold that the prosecution has proven its case against the accused persons for offence punishable under Section 307/34 IPC. It is also argued that the prosecution has also proven its case in view of the Ballistic experts report ExPW7/A that the empty cartridge recovered from the spot had been fired from the Pistol (ExP1) seized from the house of accused Nitesh Yadav at his instance. It is therefore, submitted that the prosecution has also proved commission of offence punishable under Section 30 of the Arms Act.
12. Per contra, the defence counsels have argued that no case has been proven beyond any reasonable doubt by the prosecution as all the supporting witnesses including the complainant have been hostile to the prosecution. It is urged that PW 1/complainant has denied that accused Nitesh Yadav had fired any shot from any pistol and that he has clarified that A2 had remained neutral during the incident. It is submitted that the other witnesses i.e. PWs 2, 3 & 4 have categorically denied that the police ever recorded their statements Mark PW2/A, Mark PW3/A and Mark PW4/A respectively.
Result: Acquitted Page 16 of 32State Vs. Nitesh Yadav Etc. FIR 438/14 (57217/2016)
13. It is submitted that the prosecution has only proven that the accused persons were present on the spot and were having dinner while sitting in their car. It is submitted that the other facts have not been proven beyond reasonable doubts. It is urged that recovery of pistol as well as the empty cartridge is also doubtful. It is submitted that no public witness has been joined in the investigation and that there is no compliance of Section 100 Cr.P.C despite the fact that the arrest of accused persons is shown to have been made from their respective houses. It is also urged that if the IO is to be believed, then the empty cartridge was found by him at the spot and therefore, there should have been dust particles upon it. However, when PW 7 was questioned on it, he responded that he could not find any dust particles while microscopically examining the firing pin and breech face mark on empty cartridge that he marked as ExC1.
14. The defence further argues that the contention of the prosecution that the Court can convict the accused persons on the basis of ExPW1/A also has no substance as a bare look at point A which is said to be the signatures upon the said document shows that the said signatures have been obtained on a blank sheet of paper as the writing thereupon goes to shrink (row wise) towards the end of the page. It is Result: Acquitted Page 17 of 32 State Vs. Nitesh Yadav Etc. FIR 438/14 (57217/2016) urged that there is no space hardly left for further text to fit in and that is why the attestation and endorsement made by SI Arun Kumar has been tried to be fit into the limited space available on the already signed sheet of paper. It is therefore, urged that merely because PW 1 admitted his signatures at point A on ExPW1/A it does not prove its genuineness as the defence of accused persons is false implication by the police in this case owing to the refusal of A1 to meet the demand of bribe. Further, PW 1 himself admitted that a minor scuffle had taken place on a trivial issue between him and A1 and that in the heat of passion, he got this case registered against the accused persons. It is submitted that even then minor scuffle/incident has been settled amongst the accused persons and PWs 1 to 4 as evident from the chief examination of these witnesses.
15. It is further submitted that as per the charge sheet, the police claims to have got the information about the incident vide DD No. 77B (ExPW6/A). However, the said DD has not been proved by the person who recorded it. Further, the prosecution has not examined the informant W/Ct. Suman No. 8297/PCR. It is submitted that even the person who called the PCR has not been examined.
16. It is also argued that the victims and the accused persons were not Result: Acquitted Page 18 of 32 State Vs. Nitesh Yadav Etc. FIR 438/14 (57217/2016) known to each other and thus the prosecution ought to have explain as to how the IO and PW 5 Ct. Ajeet Kumar had located the house of A1 within a short time that was available to them after registration of FIR in the late night/early hours of 19/20.4.2014.
17. It is submitted that the Court can not rely on the alleged recovery of cartridge as the IO did not even show that from where he claims to have recovered the same in the site plan ExPW6/D.
18. I have carefully gone through the record and considered the arguments as above.
19. The points for determination in this matter in accordance of Section 354 (1)(b) Cr.P.C., are culled out as below : (1)Whether the accused persons shared a common intention amongst themselves to commit the offence punishable under Section 307 IPC and in furtherance of which A1 fired one shot from his pistol ExP1 towards PWs 1 to 4 with the intention or knowledge that his act could have caused death ?
(2) Whether A1 has acted in violation of the conditions of his Arms License ExPAL and therefore committed Result: Acquitted Page 19 of 32 State Vs. Nitesh Yadav Etc. FIR 438/14 (57217/2016) the offence punishable under Section 30 of the Arms Act, 1959 ?.
20. (1)Whether the accused persons shared a common intention amongst themselves to commit the offence punishable under Section 307 IPC and in furtherance of which A1 fired one shot from his pistol ExP1 towards PWs 1 to 4 with the intention or knowledge that his act could have caused death ?
21.The relevant facts have been set out in this judgment in para 2.1 to 2.10. The evidence of the prosecution has also been set out in this judgment in para 6.
22. The accused persons have not denied in their statement under Section 313 Cr.P.C about their presence on the spot and otherwise also the said presence of accused persons on the spot of incident on the date, place and time complained of has been proved by the prosecution as PW 1 as admitted in his cross examination by the Ld. Prosecutor that he alongwith other PWs 2 to 4 had gone to the Metro Family Rasoi to eat dinner and that the said restaurant was closed by that time. He admitted that all of them started gossiping near Mother Dairy. He also admitted that A1 and A2 were eating dinner while Result: Acquitted Page 20 of 32 State Vs. Nitesh Yadav Etc. FIR 438/14 (57217/2016) sitting in the car. PW 1 did not remember the number of the car. He has not supported the prosecution even in the rest of the cross examination.
23. Further suggestion given to the witness by A1 also show that a minor scuffle had taken place between PW 1 and A1 which implies that even the defence does not deny presence of A1 on the spot. Likewise, the suggestion of A2 given to PW 1 that he remained neutral during the incident also establishes that A2 was present on the spot. However, mere presence on the spot will not suffice.
24. There is no support forth coming to the prosecution in the testimonies of PWs 2, 3 & 4. They are completely hostile to the prosecution except for the fact that all of them were present on the spot where the accused persons were also present and eating dinner in their car. They have denied that the police ever recorded their statements. These are unsigned statements and the same were confronted to the witness. They claim in their chief examination itself that there was only a minor scuffle and the FIR was got registered in the heat of passion only and that the minor dispute has been settled amongst the accused persons and the witnesses. For the aforesaid reasons, the Court can not rely on the testimonies of PWs 2 to 4 Result: Acquitted Page 21 of 32 State Vs. Nitesh Yadav Etc. FIR 438/14 (57217/2016) leaving behind the testimony of PW1/complainant only.
25. Even PW 1 has not supported the prosecution. He denies that A2 ever instigated A1 to use pistol. As a matter of fact, whether or not, A1 was carrying the pistol (ExP1) with him to the place of incident is also unproved. All the witnesses have denied that there was any pistol with A1 that was used. None of them has identified the pistol (ExP1) as none of them saw A1 holding any pistol.
26. PW 1 has supported the case of the prosecution in as much as he admits the fact that he signed on the seizure memo of the car ExPW1/C, the seizure memo of the used cartridge ExPW1/D and the seizure memo of the Arms License ExPW1/E. He also does not deny his signatures on the arrest memos of A1 and A2. However, according to him, these articles were not seized in his presence. He merely identified his signatures on the memos. He denies that the sketch of the pistol, magazine and live cartridge was prepared in his presence or that they were measured by the IO. He also identifies his signatures on such seizure memo ExPW1/H.
27. This Court has come across the bail orders of the accused persons wherein the factum of compromise has been recorded. However, at no Result: Acquitted Page 22 of 32 State Vs. Nitesh Yadav Etc. FIR 438/14 (57217/2016) place either in the said bail orders or in the evidence recorded in this case, the complainant and other supporting witnesses ever admitted to the correctness of the prosecution case.
28. For the aforesaid reasons, the testimony of PW 1 is also not worth to be read in support of the case of the prosecution. At the same time, PW 1 has accepted to the fact that his statement ExPW1/A was recorded by the police and signed by him at point A. He was never suggested that when he signed at point A on this document, it was a blank piece of paper but at the same time, the defence also appears to be correct in its arguments that the text written on ExPW1/A seems to be forcibly fit into the limited space on the paper. There is apparent truncation of the text towards the end of the document which is not the case towards the beginning of it. This fact can not be given much weightage as the defence never asked the witness as to whether the document was blank when he signed on it.
29. Thus, though the contents of ExPW1/A are in favour of the prosecution, however, the oral testimony on oath is not in favour of the prosecution. The court can not loose sight of the fact that there are no names recorded in ExPW1/A and thus it will be too far fetched to connect A1 and A2 with the persons mentioned in the document Result: Acquitted Page 23 of 32 State Vs. Nitesh Yadav Etc. FIR 438/14 (57217/2016) ExPW1/A.
30. For the aforesaid reasons, the Court can not say exclusively on the basis of ExPW1/A that the prosecution has proven its case against the accused persons qua the offence punishable under Section 307 IPC. It would be however, reasonable to say that PW 1 who is the author of ExPW1/A had resiled from this statement and did not support the prosecutions case while being examined in this Court on oath for which he may be subjected to appropriate proceedings for Perjury but the same will not be suffice for observing that prosecution's case on this count, stood proven.
31. Moreover, the IO/PW 6 does not clarify as to how he reached at the house of A1. Interestingly, he received the information about DD No. 77B (ExPW6/A) at 11 p.m on 19.4.2014. He had gone to the spot but met none and returned back to police station. After some time, PW 1 and his friend Himanshu reached at the police station where PW 1 made his statement ExPW1/A. Thereafter, the case was got registered.
32. On the same night, the IO found that A1 was residing in a nearby house at C5A/65D Janak Puri. He then made 'inquiry'. He does not Result: Acquitted Page 24 of 32 State Vs. Nitesh Yadav Etc. FIR 438/14 (57217/2016) clarify as to from whom he made the said 'inquiry'. If he made this inquiry from the RTO office to trace the accused persons by registration number of the car, even the same has not been explained. His cross examination clarifies that he had returned back to the police station after his initial visit after 12 mid night. After some time, PW 1 had visited the police station. He himself states that he could not trace the ownership of mobile which was used to call the PCR as it was late night. However, as to how he was able to make inquiry regarding the whereabouts of A1 is not clarified and creates doubt. I may point out that as per him, the IO left for the spot after registration of FIR at the second instance around 2/2.30 a.m. The time of arrest of A1 is 3.45 a.m. Before some time of it, the IO must have located the house of accused and as per prosecution, it is outside of his house that the Swift car was found parked. It ought to have been explained by the prosecution as to how the police party located the house of the accused between 2.30 a.m and well before 3.45 a.m. Absence of public witness despite the fact that recovery and arrest was made from a house situated in Janak Puri locality is a disturbing fact. In this context, PW 5 creates confusion by stating that a public person was joined in the investigation by the IO at the spot. No such person is Result: Acquitted Page 25 of 32 State Vs. Nitesh Yadav Etc. FIR 438/14 (57217/2016) shown to the investigation proceedings. The benefit goes clearly to the accused persons.
33. Moreover, the IO could have examined the staff of Metro Family Rasoi or adjoining shops or houses etc in order to verify the fact regarding firing of gun shot. As per the Rukka, the incident took place at about 11 p.m which can not be considered as very late hours. No such effort was made.
34. As the prosecution fails to establish the first point for determination beyond the shadow of all reasonable doubts, it is to be held that the prosecution has not proved the commission of offence punishable under Section 307/34 IPC.
35. (2) Whether A1 has acted in violation of the conditions of his Arms License ExPAL and therefore committed the offence punishable under Section 30 of the Arms Act, 1959 ?.
36. This point for determination requires to be approached from the perspective of the proceedings regarding the recovery of the fired cartridge shell ExPS and the pistol from which it was fired ExP1.
37. The arguments in this context have been set out earlier in the judgment including the evidence on it.
38. I have already pointed out that besides the IO and Ct Ajeet Result: Acquitted Page 26 of 32 State Vs. Nitesh Yadav Etc. FIR 438/14 (57217/2016) Kumar, the only public witness to the incident of recovery of fired cartridge shell ExPS is PW1 who only identified his signatures thereupon but does not conclusively proved that the fired cartridge was recovered from the spot in the manner stated by the IO. There is a complete dearth of public witnesses in this case. It is apparent that the IO and Ct. Ajeet Kumar could not have looked for the same on the spot at the time of their first visit as they found nobody at the informed spot.
39. Their second visit as per the IO to the informed spot was alongwith PW 1 and his friend Himanshu Chauhan (PW2) when the used cartridge was found, sealed and seized. His cross examination establishes that he reached the informed place on second time after 2.30 a.m where he conducted investigation and prepared documents under the street light. He had not made any DD entry regarding his Departure which is a circumstance in favour of accused persons.
40. PW 2 Himanshu Chauhan was present but still he was not made to sign on seizure memo of cartridge ExPW1/D and even the site plan ExPW6/D does not show location of the place from where it was found.
Result: Acquitted Page 27 of 32State Vs. Nitesh Yadav Etc. FIR 438/14 (57217/2016)
41. When compared with testimony of PW 5 Ct Ajeet Kumar, it is revealed that a public person joined the investigation at the spot. No such public person is cited as a witness. The defence is that police came to house of A1. He had given his pistol alongwith 30 live cartridges. One round was fired by the police on the roof of his house. The empty shell was then seized by the police at the roof of his house. In the absence of clinching evidence regarding recovery of cartridge, the defence becomes probable. Once it is so, the benefit has to go to accused persons.
42. The matter does not end here. The Ballistic Expert Dr. V.R Anand (PW7) received the case property including the used cartridge marked as ExEC1 on 24.11.2015. This date is essential as FSL form was prepared much earlier to this i.e. on 13.1.2015 as per copy Mark PW6/N. IO/PW 6 affirms in his cross examination that as per R/C Mark PW6/A samples were deposited with FSL only on 24.11.2015 and the FSL form is dated 13.1.2015. The concerned MHC(M) is not examined. The veracity of the sample is therefore compromised as there is no evidence of its handling without possibility of any tampering between 13.1.2015 to 24.11.2015.
Result: Acquitted Page 28 of 32State Vs. Nitesh Yadav Etc. FIR 438/14 (57217/2016)
43. The FSL form mentions all exhibits including the GSR samples obtained from both hands of A1. According to the IO, same had to be struck out from the form as the FSL officials did not accept the same as 'non effected body control sample' was not taken in Safdarjung hospital alongwith GSR. This fact is not mentioned in the charge sheet. The IO admits it. The IO claims that he redeposited the GSR sample in malkhana but did not make any DD entry. The samples possibly remained with the IO as he himself had gone to deposit the exhibits even after his transfer from P.S and on the premise that he had already completed the FSL forms. The record shows that charge sheet was finalized and filed by PW 8 SI Ganga Ram.
44. The above therefore creates a serious doubt about the genuineness/sanctity of sample deposited with FSL on 24.11.2015.
45. PW 7 Ballistic Expert did not find any 'dust particles' despite microscopic examination of used cartridge (ExPS). If it was recovered from the place (the site plan of which place shows it to be a public place) from where it was stated to be recovered, then it was bound to have some dust particles that could have been examined under microscopic examination, if not by nacked eye. It is not the case of the IO that he had cleaned the recovered cartridge (ExPS).
Result: Acquitted Page 29 of 32State Vs. Nitesh Yadav Etc. FIR 438/14 (57217/2016) The defence that cartridge was not recovered from where it is shown becomes more probable in view of above circumstances.
46. The recovery of pistol ExP1 is also under doubt. There is no compliance of Section 100 Cr.P.C. Arrest is made in late night hours from a residential house. Presence of any other person in the house can not obviated. Otherwise also, this fact becomes inconsequential as A1 himself takes defence that he had given his pistol to the case IO.
47. The report of Ballistic Expert only establishes that the recovered cartridge was the same that was fired from the recovered pistol. It was important for prosecution to establish unimpeachable link between evidence qua recovery of the used cartridge, recovery of the fire arm through which it was fired, authenticity of oral testimonies and forensic examination report with respect to GSR lifted from both hands of A1.
48. The relevant doctor is PW 10 who deposed on behalf of Dr. P. Owais Iqbal. He only proves that GSR sample was taken on 20.4.2014. There is no corroborating evidence from FSL that it refused to examine this sample for want of 'non effected body control sample'.
Result: Acquitted Page 30 of 32State Vs. Nitesh Yadav Etc. FIR 438/14 (57217/2016)
49. Therefore, there is absolutely no evidence on record to show that A1 had handled the pistol at the relevant time and had discharged the weapon by firing a bullet from the spent cartridge (ExPS).
50. For the reasons above, the Court can not hold that by firing the licensed weapon ExP1, A1 had breached the conditions in terms of license ExPAL. Infact, there is nothing to show that A1 fired the Gun. This point is therefore answered in negative. Conclusion:
51. In view of the discussion above, it is held that prosecution has not proved its case as against the accused persons beyond reasonable doubt. Accused persons are entitled to benefit of doubt. Consequently, accused Nitesh Yadav and Love @ Lakshay are acquitted of the Charges Punishable U/s 307/34 IPC. Accused Nitesh Yadav is also acquitted of offence punishable U/s 30 of Arms Act, 1959. This order is subject to proper compliance of provision of Section 437A Cr.P.C for which separate order has been passed Further it is ordered that the case property of this case, if any, be disposed of/destroyed after expiry of period of Result: Acquitted Page 31 of 32 State Vs. Nitesh Yadav Etc. FIR 438/14 (57217/2016) filing appeal, if any.
Copy of this order be retained in the miscellaneous file as per the directions in the order of even date qua the above.
File be consigned to Record Room.
Announced in open Court (Manish Yaduvanshi)
on 30.11.2017 ASJ05(W)/THC
Result: Acquitted Page 32 of 32