Delhi District Court
State vs Vijay Lamba And Ors on 19 September, 2023
IN THE COURT OF SH. PANKAJ ARORA:
ADDITIONAL SESSIONS JUDGE-04: NORTH-EAST:
KARKARDOOMA COURT: DELHI
SESSIONS CASE NO. 44464/15
CNR No. DLNE01-000076-2011
FIR No: 160/2011
P.S. New Usmanpur
U/s : 302/396/397/412/120B/34 IPC
u/s 25/27 Arms Act
STATE
Versus
1. Vijay Lamba s/o Ram Lal
r/o H. No. J-281/33B, Gali no. 6
Kartar Nagar, Delhi
2. Arun Kumar Balmiki s/o Sudesh Kumar
r/o Village Kuchawali, PS Chhajlet,
Distt. Moradabad, UP
3. Wahazuddin @ Wahazu s/o Sirazuddin
r/o Village Mewa Nawada, PS Sheohara,
Distt. Bijnor, UP
4. Zahid s/o Anwar Ansari
r/o Village Bhikan Pur, PS Chhajlet,
Distt. Bijnor, UP
5. Bale @ Abrar s/o Suleman
r/o Vill. Hussain Pur, PS Kunwar Gaon,
Distt. Badaun, UP
At present: H. No. E-339/1A, 3rd Pushta,
Jagjit Nagar, Delhi
6. Mohd. Nazim @ Nadeem s/o Ali Bux
r/o Vill. Mewa Jat, PS Sheohara,
Distt. Bijnor, UP,
At present: H. No. H-61/12, Jai Prakash Nagar,
Ghonda, Delhi
FIR No. 160/2011 State Vs. Vijay Lamba Etc. Page No. 1 of 83
Date of Institution : 05-09-2011
Date of Argument : 13-09-2023
Date of Judgment : 19-09-2023
JUDGMENT
1. Brief facts of this case are that on 21-04-2011 an information was received at PS New Usmanpur regarding gun shot injury, which was reduced into writing vide DD no. 37A (Ex. PW4/C). The said DD entry was marked to IO SI Ashish Dahima (PW44). Thereafter, IO along with Ct. Dharmender reached at the spot i.e. near Durga Mandir, F-Block, Shastri Park, Delhi. He noticed blood on the road and found one empty cartridge at the spot. On local inquiry, he came to know that one person namely Ram Gopal Verma got injured by gun shot by 3-4 boys and he had been taken to St. Stephen Hospital. No eyewitness met at the spot. Meanwhile, two beat staff HC Pratap and Ct. Parmender also reached at the spot. They were deputed to preserve the spot. IO along with Ct. Dharmender proceeded towards St. Stephens hospital and met with one Deepak Verma s/o injured Ram Gopal Verma and came to know that injured Ram Gopal Verma was declared 'brought dead'. The duty doctor handed over one sealed pulanda containing clothes of deceased, one blood sample along with sample seal of hospital, which was seized vide seizure memo Ex. PW44/A. Personal search articles of the deceased were seized vide memo Ex. PW44/B. IO then proceeded to record statement of Deepak Verma, who stated that he was running a jewelry shop in the name of Monu Jewellers at E-51, Gali no. 8, Shastri Park, Delhi along with his father, now deceased Ram Gopal Verma. His father used to close the shop daily at about 8:30 pm and used to carry keys of the shop in a FIR No. 160/2011 State Vs. Vijay Lamba Etc. Page No. 2 of 83 small hand bag. He used to return home by 7 pm. On 21/04/2011, at about 8:45 pm while he was standing in a gali near his house, which is situated at some distance from his shop. He saw his father was coming towards his house along with artisan namely Ram Babu, Ashok and driver Atul. When he reached near the crossing (nukkad of gali), 3-4 boys reached there and immediately fired with some pistol like weapon. Two- three bullet shot hit his father, who fell down on the floor and assailants fled from there. He immediately took his father to St. Stephens hospital in private car with the help of some more people where his father was declared 'brought dead'. He raised suspicion upon one Ram Bharose son of his maternal uncle Anil Verma and one Raju, son-in-law of Anil Verma as they are of bad character and with whom they were having old enmity. The bag of his father was not found at the spot. He stated that he can identify the culprit if produced before him. They were of average height and aged 22-25 years. On the basis of statement of complainant, present FIR was registered. IO moved an application to preserve the dead body for 24 hours vide application Ex. PW44/D. Further investigation of the present case was handed over to Inspector Arjun Singh (PW27). Rough site plan (Ex. PW1/A) was prepared. Empty cartridge, earth control, blood control were lifted from the spot vide seizure memo Ex. PW2/B. Crime Team was also called at the spot, who took photographs of the spot from different angels. Inquiry was conducted from witnesses namely Ram Babu, Atul Kumar, Ashok Verma and their statements u/s 161 Cr.P.C. was recorded. On the next day, IO went to the mortuary of GTB hospital where he recorded statement of complainant Deepak Verma and one FIR No. 160/2011 State Vs. Vijay Lamba Etc. Page No. 3 of 83 Sanjay Kumar Verma. He prepared inquest papers and made request for postmortem of the dead body of Ram Gopal Verma vide request Ex. PW2/E. Thereafter, postmortem was conducted and after postmortem, the dead body was handed over to the complainant Deepak Verma vide memo Ex. PW2/F. On 23-04-2011, the suspects Raju Verma and Ram Bharose came at the police station and they were interrogated and discharged as they were not found to be involved in the incident. One witness namely Atul Kumar had informed that he saw four accused persons escaping in Maruti car having no. 6898. On 25/04/2011, HC Abhishek during his patrolling duty, noticed the above-stated car with number DL4CC-6898, which was found lying parked in front of H. No. 148, Gali no. 3, New Usmanpur village. HC Abhishek informed the Crime Team and Crime Team officials reached at the spot and inspected the said car. Three chance prints were lifted by the finger print expert and Crime Team. Photographs of the car were clicked. The car was seized vide seizure memo Ex. PW3/A. The said car was found to be stolen from the area of PS Bhajanpura in connection with FIR no. 147/11, PS Bhajanpura. Postmortem report Ex. PW20/A was received on 27-04-2011.
On 29-04-2011, the IO received information that chance prints which were lifted by the Crime Team from the car could not be matched with the data base of Finger Print Bureau, Kamla Market. Thereafter, after consultation with senior police officials, chance prints were sent to NCRB, R.K. Puram for opinion on 02-05-2011. On 05-05-2011, information was received from NCRB, R. K. Puram that one of the chance print matched with the data base of convict Vijay Lamba r/o J-55, FIR No. 160/2011 State Vs. Vijay Lamba Etc. Page No. 4 of 83 Ashok Vihar, Gurugram, who was found convicted in case FIR no. 337/09, PS City Gurugram u/s 379/356 of IPC. Thereafter, IO along with staff went to above-stated address of Vijay Lamba but he was not found residing there. On inquiry from officials of PS City Gurugram, it was revealed that accused Vijay Lamba was having another address at WZ-11, Om Vihar, Uttam Nagar, Delhi. However, on reaching at Uttam Nagar address, the accused was not found residing there. Thereafter, IO went to Bhondsi jail, Gurugram where address of the surety Mohd. Rashid was found, who was found residing at C-44/218, Gali no. 17, Gumri Extension, Kartar Nagar, Delhi. Meanwhile, on 03/06/2011, an information was received from SOS Crime Branch that they have arrested accused Vijay Lamba in case FIR no. 151/11, PS Crime Branch. On 04-06-2011, accused Vijay Lamba was formally arrested vide memo Ex. PW25/A. His disclosure statement was recorded vide Ex. PW25/C. The accused was subjected to TIP proceedings. However, he refused to participate therein. Two days PC remand of accused was sought. During PC remand, the accused got recovered one gold finger ring, one silver finger ring, one pair of anklet, one bunch of keys, some visiting cards of deceased (in the name of Monu Jewellers), one card of a shopping Mall etc., which were robbed by him from the deceased on 21-04-2011, from his house situated at J-281/33B, Kartar Nagar, Delhi. The articles were seized vide seizure memo Ex. PW25/D. At the instance of accused, pointing out memo of the spot, and place where car was parked were prepared vide Ex. PW25/F and Ex. PW25/E respectively.
On the next day, eyewitness namely Deepak Verma, Atul Kumar, Ashok Verma had identified the accused Vijay Lamba at FIR No. 160/2011 State Vs. Vijay Lamba Etc. Page No. 5 of 83 PS and their statements were recorded.
On 23-06-2011, an information was received from SOC Bijnor that accused Arun Kumar Balmiki had surrendered in some case at Muradabad, UP. Thereafter, IO took steps for getting his production warrants issued. On 30-06-2011, accused Arun Kumar Balmiki was produced in the concerned court and he was interrogated and formally arrested vide memo Ex. PW31/A. His disclosure statement was recorded as Ex. PW31/B. Accused Arun Kumar Balmiki was subjected to TIP proceedings, however, he refused to participate in TIP proceedings.
On 06-07-2011, on the basis of secret information, accused Akram was arrested vide memo Ex. PW25/G. His disclosure statement was recorded vide memo Ex. PW25/I. On 11-07-2011, two days PC remand of accused was sought. At the instance of accused, pointing out memo of spot as well as place where they had parked the car were prepared vide memos Ex. PW26/A and Ex. PW26/B respectively. During PC remand, accused Arun Kumar Balmiki got recovered one desi katta of 315 bore along with two live cartridges from his house at village Kuchawali, PS Chhajlet, Distt. Muradabad, UP which was seized vide memo Ex. PW35/A. Accused Arun Kumar Balmiki also got recovered one robbed ear ring which was seized vide memo Ex. PW35/B. On 20-07-2011, an information was received from SOC Bijnaur that accused Wahazuddin was arrested in case FIR no. 151/11, PS Noorpur, Bijnaur, UP. Therefore, after obtaining production warrants issued from the court, accused Wahazuddin was formally arrested on 10-08-2011 vide memo Ex. PW32/B. His disclosure statement was recorded as Ex. PW32/A. Accused Wahazuddin was subjected to TIP proceedings wherein accused FIR No. 160/2011 State Vs. Vijay Lamba Etc. Page No. 6 of 83 was correctly identified by three witnesses on 20-08-2011. At the instance of accused, pointing out memo of spot as well place where they had parked the car were prepared vide memos Ex. PW27/I and Ex. PW27/J respectively.
On 26-08-2011, TIP of the recovered robbed articles was got conducted wherein the complainant Deepak Verma had correctly identified all the articles vide TIP proceedings Ex. PW8/B. On 06-07-2011, on the basis of secret information, accused Akram was arrested from 4½ Pushta, New Usmanpur, Delhi. Since accused Zahid, Bale @ Abrar and Mohd. Nazim @ Nadeem could not be traced, the IO had obtained NBWs against them, which remained unexecuted. Thereafter, IO obtained process u/s 82/83 Cr.P.C. against all three accused persons vide order dated 29/07/2011. Thereafter, after completion of necessary formalities, the IO filed the chargesheet against accused Vijay Lamba, Arun Kumar Balmiki, Wazhzuddin, Akram in the court of Ld. Ilaqa MM.
On 29-11-2011, accused Bale @ Abrar was arrested on the basis of secret information u/s 41.1 of Cr.P.C. by SI Ravinder Teotia. He was formally arrested in this case on 30-11-2011. Supplementary chargesheet 'qua' him was filed in the court on 31-01-2012. Accused Zahid was arrested on the basis of secret information in case FIR no. 77/12, PS Crime Branch on 23/03/2012. He was formally arrested in this case on 31-03-2012. Supplementary chargesheet 'qua' him was filed in the court on 01/05/2012.
FSL reports were also filed through supplementary chargesheets subsequently. Accused Mohd. Nazim @ Nadeem is FIR No. 160/2011 State Vs. Vijay Lamba Etc. Page No. 7 of 83 still absconding. From the investigation, it was concluded by the investigating officer (hereinafter referred to as 'IO') that accused Vijay Lamba and other associates namely Zahid, Arun Kumar, Wahazuddin @ Wahazu, Akraam, Md. Nazim @ Nadeem and Bale @ Abrar used to meet at the factory of Md. Nadeem at H- 61/12, Jai Prakash Nagar, Ghonda, Delhi. Accused Vijay Lamba, a history sheeter of P.S. Uttam Nagar and a known auto lifter and Zahid had stolen a Maruti Car No. UA-09-3524 from the area of Bhajan Pura about 12/13 days prior to this incident and after changing the number plate as DL-4CC- 6898, left it near 4½ Pushta, Kartar Nagar, Delhi. Accused Md. Nazim @ Nadeem and Akram gave him the information about a jeweler in Shastri Park that every evening after closing his shop he goes to his house having jewelery worth Rs. 10/12 lakhs in a hand bag. After planning, all the seven accused persons assembled at the factory of Nadeem on 21.04.2011 and proceeded at the spot. Accused Vijay Lamba, Zahid, Arun Kumar and Wahazuddin each armed with Desi Katta reached the spot in above Maruti car and left the car at the service road of F-Block, Shastri Park, Delhi. Accused Akram, Md. Nazim @ Nadeem and Bale @ Abrar reached the spot on a Motorcycle of Nadeem. Accused Akram and Bale were left near the car to look after it and help the accused persons while escaping. Accused Md. Nazim @ Nadeem followed the deceased Ram Gopal from his shop and identified him. Accused Vijay Lamba, Zahid, Arun Kumar and Wahazuddin were waiting for him near Durga Mandir. Gali No. 8, Shastri Park and when Ram Gopal Verma turned towards his house along with his employees Ashok Verma, Atul Kumar Singh and Ram Babu, accused Zahid tried to snatch the hand bag carried by Sh. Ram FIR No. 160/2011 State Vs. Vijay Lamba Etc. Page No. 8 of 83 Gopal Verma. But he resisted and on this accused Vijay Lamba fired upon him. Sh. Ram Gopal Verma tried to escape by running towards main bazar road but Zahid also shot him with the country made pistol carried by him and Sh. Ram Gopal fell on the ground. Accused Arun Kumar and Wahazuddin also threatened the people present there with the country made pistol in their hands and all the four accused persons ran away from the spot with the looted hand bag. While running, they left the above-mentioned Maruti car at opposite H. No. 148, Gali No. 3. IInd Pushta, New Usman Pur, Delhi as abandoned. They reached the factory of Md. Nazim @ Nadeem and found only Rs. 11,000/- cash and some jewelery items in the hand bag. They shared the looted property and on the next day after getting information about death of jeweler, accused Vijay Lamba, Zahid, Arun Kumar and Wahazuddin fled away from Delhi while other remained in Delhi to have information about police action. COMMITTAL
2. After taking cognizance and compliance of section 207 Cr. PC, present case was committed to the court of sessions by Ld. MM vide order dtd. 02.09.2011. Thereafter, the then Ld. District and Sessions Judge, KKD Courts allocated this case to the ld. Predecessor of this court.
CHARGE
3. On the basis of facts emerging from the chargesheet and after hearing the arguments, Ld. Predecessor of this court framed charges against the accused persons vide order dated 27.09.2011 as follows:
1) Charge for the offences punishable u/s120B/396/302 of IPC, and u/s 397/412 IPC against accused Vijay Lamba;
FIR No. 160/2011 State Vs. Vijay Lamba Etc. Page No. 9 of 83
2) Charge for the offences punishable u/s 120B/396/302 of IPC against accused Bale @ Abrar;
3) Charge for the offences punishable u/s 120B/396/302 of IPC and u/s 25/27 of Arms Act against accused Arun Kumar Balmiki and Zahid During final arguments, at the request of LD. Addl. PP , and upon finding that record prima facie indicates that an additional charge for the offence punishable u/s 411 of IPC ought to be framed against the accused persons namely Vijay Lamba and Arun Kumar Balmiki with regard to the subsequent recovery of robbed articles from their possession, this court framed an additional charge against accused Vijay Lamba and Arun Kumar Balmiki to which the accused persons pleaded not guilty and claimed trial.
In order to substantiate the allegations against the accused persons, the prosecution got examined as many as 49 witnesses. Ct. Ram Prasad was dropped from the list of witnesses vide order dated 25-04-2023 as he had passed away during the trial. Record pertaining to FIR no. 147/11, PS Bhajanpura, and FIR no. 151/11 PS Crime Branch were admitted u/s 294 of Cr.P.C. by the accused persons on 02-05-2023 and therefore, examination of concerned Ahlmads was dispensed with. Ballistic report no. FSL 2012/F-2358 dated 30-10-2013 was also admitted u/s 294 of Cr.P.C. by the accused persons on 28-08-2023 and therefore, examination of concerned witness was dispensed with. Examination of In-charge, Record Branch, PCR was dispensed with in view of statement dated 28-08-2023 of Ld. Addl. PP for State.
FIR No. 160/2011 State Vs. Vijay Lamba Etc. Page No. 10 of 83
4. PROSECUTION EVIDENCE (I) PUBLIC WITNESSES:
(i) PW2 Deepak is the complainant as well as eye-witness of the present case. He is also the son of deceased Ram Gopal Verma. He deposed that he has a jewellery shop in the name and style of Monu Jewellers situated at Shop No. E-51, Gali No.1, Shastri Park, Delhi. He and his father now deceased used to run the same. Daily his shop used to get closed by around 8.30 pm and his father would return home from the shop with hand bag containing keys. He used to return his house by 7.00 pm. On 21.04.2011 at about 8:45 pm, he was standing in his gali near his house situated at a little distance from his shop. He saw his father was coming towards house with artisans Ram Babu, Ashok and driver Atul. When they reached near the crossing (nukkad) of the gali, one of the person snatched the bag from his father. When his father was coming, four persons had arrived there. One person had snatched the bag from his father from the back side. Prior to snatching the bag, his father resisted and turned towards back.
When his father resisted in giving the bag, one person fired with gun shot, which had hit his father. Despite sustaining gun shot injury his father did not hand over the bag, then another person came there and put the gun on his chest and fired. He was standing at the distance of about 8/10 steps from his father. His father fell down. He reached there immediately. When his father fell down, the accused took away his hand bag with him and two persons were hurling the pistol in his hand and were threatening by abusing "hat jao verna goli mar dunga". Immediately, he removed his father to St. Stephen Hospital in private car and his father was declared brought dead in the hospital. Police reached FIR No. 160/2011 State Vs. Vijay Lamba Etc. Page No. 11 of 83 to the hospital and recorded his statement as Ex.PW2/A. He had accompanied the Investigating officer (hereinafter referrred to as IO) to the spot. IO lifted the blood from the spot and kept the same in a plastic container and sealed the same with the seal of AS. IO also lifted the earth from the spot and kept the same in plastic container and sealed the same with the seal of AS. IO also lifted one bullet/pallet from the spot and kept the same in plastic container and sealed with the seal of AS. These exhibits were seized by the IO vide seizure memo Ex.PW2/B. On 22.04.2011, he had participated in inquest proceeding, had identified the dead body of his father at the mortuary GTB Hospital and gave his statement which he identified as Ex.PW2/C. His brother Sanjay Kumar Verma had also participated in the proceeding and had also identified the dead body. He had also signed inquest form as Ex.PW2/D and Request for postmortem by IO as Ex.PW2/E. After postmortem, they we received the dead body of his father through receipt Ex.PW2/F. PW2 further deposed that on 23.4.2011, he went to his jewelry shop along with the police officials and checked up the same. On checking, he found that the hand bag which was robbed on 21.4.2011, was containing two pairs of pajeb, one pair of ear rings (jhumki) (gold plated), one wrist watch of his father, one gold bracelet having RUDRAKSH, one silver ring with pearl stone, one gold ring and two pairs of silver karas and cash amount of Rs.10-11 thousand. He told the above said facts to the police and his statement in this regard was recorded by the police. On 05.06.2011, he was called by the police to PS New Usmanpur Delhi and accordingly, he alongwith his employees Atul Kumar and Ashok Verma went to PS New Usmanpur and on reaching there, he found that a person FIR No. 160/2011 State Vs. Vijay Lamba Etc. Page No. 12 of 83 was being interrogated by the police and on seeing the said person, he had identified him as the person who was the first one to fire the gun shot on the person of his father and came to know of his name as Vijay Lamba. Witness has correctly identified the accused Vijay Lamba. His statement was recorded by the IO of the case in this regard.
On 13.07.2011, PW2 was again called to PS New Usmanpur Delhi and accordingly, he along with his employees Atul & Ashok went there and he found that a person was being interrogated by the police and on seeing the said person, he had identified him as the person who was brandishing the revolver while running away from the spot alongwith other co-accused persons after committing the crime. His name was revealed as Arun Kumar. Witness correctly identified accused Arun Kumar. His statement was recorded by the IO of the case in this regard. He deposed that on 25.07.2011, when he was present at his shop, he was called by the police at the spot. Accordingly, he went to the spot and the police inspected the spot and made enquiries from him and prepared the rough notes and took measurements at the spot. On the night of the incident, when he was accompanying the police officials from the hospital to the spot, he had also shown the place of occurrence and site plan in this regard was prepared by the IO of the case. At that time, the police also took the photograph of the spot and lifted the blood and earth etc from the spot. On 20.08.2011, he had identified the third accused Wahajuddin in judicial TIP proceedings. Accused Wahajuddin was also having country made pistol at the time of incident and was waiving the same in the air, while running from the spot. He had also identified the fourth accused, namely, Jahid FIR No. 160/2011 State Vs. Vijay Lamba Etc. Page No. 13 of 83 outside courtroom No.75, Kakardooma Courts, on 16.04.2012. Witness correctly identified the accused Jahid as the person who first of all snatched the bag from his father and also fired a shot on the person of his father. Witness correctly identified the blood stained clothes i.e vest and kurta as the same to be of his father and states that these are the same clothes which were being worn by his father at the time of incident as Ex. P1. Witness correctly identified one underwear of dark brown colour as the same to be of his father and states that it is the same garment which was being worn by his father at the time of incident as Ex. P2.
PW2 further deposed that on 26.08.2011, he had identified the case property i.e jewellery and some visiting cards and identity card of his father during the judicial TIP proceeding. PW@ has identified his signatures on record pertasining to the judicial TIP proceeding of the case property on record as Ex. PW 8/B He has correctly identified one black colour rexine hand bag (the rexine of the bag was in pilled up condition) and stated that the bag appears to be similar as that of his deceased father. The bag was proved as Ex.P-3. After opening the bag, two bunches of long keys, each bunch containing six keys, were taken out and shown to the witness. The witness correctly identified the two bunches of keys as belonging to his shop as Ex.P-4 (collectively). From the bag a pair of anklets, one gold ring and one silver ring and some visiting cards (5 visiting cards of Monu Jewellers having the name of Ram Gopal, 7 visiting cards of Ram Gopal Verma having his photographs, 2 identity cards of Ram Gopal Verma issued by Indian Consumer Production Committee and one wholesale cash and carry card in the name of Ram Gopal & M/s Monu Jewellers) were shown to the witness and the witness FIR No. 160/2011 State Vs. Vijay Lamba Etc. Page No. 14 of 83 correctly identified the pair of Anklets, gold ring, silver ring, the visiting cards and the identity cards have belonging to his shop/ his father. The anklets were proved as Ex.P-5 (collectively). The gold ring was proved as Ex.P-6. The silver ring was proved as Ex.P-7. The visiting cards and identity cards were proved as Ex.P-8 (collectively). Witness has correctly identified one polythene pouch containing pair of jhumki and the witness stated that it belonged to his shop. The pair of jhumki was proved as Ex.P-9 (collectively).Witness correctly identified one plastic container containing one rudraksh bracelet. On seeing the same the witness stated that it belonged to his father. The rudraksh bracelet was proved as Ex.P-10.
In his cross-examination dated 12.03.2015 by Ld. Defence counsel, he deposed that on the evening of 21.04.2011, he was at his home. On that day when he was coming downstairs, he heard a noise and on hearing the same he came out from the house and saw the incident. When he reached at the spot he found that his father was lying in injured condition. Atul and ashok were also present there. He had not seen any person while firing upon his father. However, he had seen 4-5 persons who were running from there. He, Atul and Ashok did not try to chase and catch those persons who were running from there. One black colour bag was lying near his father when he reached there. His father used to keep key of the shop, cash and balance jewellery articles in the said bag. He was now aware as to where the said bag as he had taken to his father to St. Stephen hospital. He saw that his father was coming towards to his house alongwith Atul and Ashok after closing the shop and when they reached at corner of the gali in the mean time 3-4 boys came there on foot and they fired from FIR No. 160/2011 State Vs. Vijay Lamba Etc. Page No. 15 of 83 the pistol type weapons which they were carrying with them, upon his father and his father received 2-3 fire shots and after receiving the fire shots he fell down and said boy ran away from there.
In his cross-examination dated 27.04.2016, PW2 stated that he came to know from the public gathered at the spot the facts stated by him in his examination in chief from pt. A to A1.He had seen the assailants but he had not seen them clearly. In his cross-examination dated 24.10.2016, PW2 affirmed that he had not stated to the police at any point of time that he could identify the assailants who committed the murder of his father. He affirmed that he suspected his maternal uncle Anil Verma, his son Ram Bharose and son-in-law Raju in the complaint.
In his cross-examination dated 17.08.2017, PW2 had deposed before the court during his examination-in-chief on 23.11.2011, 19.01.2012, 20.10.2012, 10.12.2012, 28.07.2014 and 20.11.2014 whatever told by the police to him during the process of this case as and when he visited the police station and the accused persons were arrested by the police. The police officials shown him the accused persons in police station as and when they were arrested and one person was shown to him in front of Court No. 75. The police officials told that these were the assailants who committed the offence with his father. He affirmed that prior to their arrest, he had not seen any of the accused persons, however, he had seen 4-5 persons from their back when the persons were running after the incident, but he could not see their faces and was not able to identify them. The police did not seize any article in his presence as he had left the hospital alongwith his father.
FIR No. 160/2011 State Vs. Vijay Lamba Etc. Page No. 16 of 83 In his re-examination dated 22.09.2017 by Ld. Addl. PP, he deposed that the version which he had stated during his cross- examination is correct one and the version which he had stated during his examination-in-chief is false one. He denied the suggestion that his version as appearing in his examination in chief was the true version of the story or that whatever he had stated in his cross- examination is the wrong one. PW2 was cautioned and was apprised that in case if it is found that he has deposed falsely during his testimony. appropriate action/proceedings therefor may be initiated against him. His deposition in his examination- in-chief was as per the version stated to him by the police. He had not stated at the time of his examination-in-chief that he was going to depose under the pressure of the police/ IO. He denied the suggestion that the police officials had not dictated him to depose in a particular fashion or that his examination-in-chief was a true statement of facts. He denied the suggestion that the police did not put any pressure upon him and due to this reason he did not apprise the court. He denied the suggestion that he was deposing falsely that he had deposed before the court during his examination-in-chief due to pressure of the police. He denied the suggestion that he was deposing falsely in this regard.
(ii) PW13 Hitesh Jain is the neighbor of jewellery shop of deceased Ram Gopal. He deposed that he had a footwear shop No. 51 on the main road, Shastri Park. His residence was on the first floor of his shop. The shop of deceased Ram Gopal was situated adjacent to his shop. On 21.04.2011 at about 8:45 pm, he was present at his shop. Ram Gopal ji had closed his shop and proceeded towards his house which is situated at a distance of FIR No. 160/2011 State Vs. Vijay Lamba Etc. Page No. 17 of 83 about 2-3 minutes walk from the shop. Ram Gopal ji could have hardly reached near mandir, then public persons had rushed towards their shop saying that Ram Gopal ji had been shot. He alongwith his other shopkeepers had rushed towards mandir and found Ram Gopal ji lying on road and was serious. Ashok, workman at his shop, and Atul were in the process of lifting him. They all lifted him. Atul had arranged a car and Ram Gopal ji was shifted to St. Stephen hospital. He alongwith other shop keepers had also gone to St. Stephen hospital. The doctors had declared Ram Gopal ji as dead.
Witness was cross-examined but nothing material came in is cross-examination.
(iii) PW14 Ashok is the workman of the jewellery shop of deceased Ram Gopal. He deposed that he is native of Distt. Bareli, UP and is residing in Delhi for the last about 20-22 years. He knew deceased Ram Gopal Verma as he was working at his jewellery shop as workman. The shop of Ram Gopal Verma was situated at Shastri Park, Main Road bearing no. E51 in the name and style of Monu Jewellers. The shop used to be opened at about 9:30 am and used to be closed at about 8.30 p.m. On 2104.2011 at about 8.40 pm, they had closed the shop. Ram Gopal ji was proceeding towards his house which was situated at a distance of about 5 minutes walk. Atul, the driver of Ram Gopal ji and he was also walking along with him towards his house. He and Atul were talking with each other. Ram Gopal ji was ahead them at some distance. At that time he heard gun shot sound. He rushed towards him in the gali and saw his bag and items contained therein scattered on the road. Ram Gopal ji was lying on the road. He called Deepak who was present nearby, he FIR No. 160/2011 State Vs. Vijay Lamba Etc. Page No. 18 of 83 came rushing towards them. Thereafter, the car was arranged and he was shifted to St. Stephen hospital. He had come to know in the hospital that Ram Gopal ji was no more. He had not seen anyone shooting at Ram Gopal ji. He had only seen them fleeing. They were 45 persons in number. The 4-5 persons were fleeing from there had shot at Ram Gopal ji. He deposed that he could not identify them. He did not know anything else about this case.
In his cross-examination by Ld. Addl. PP, he deposed that Police had not inquired from him about this case. Police had not recorded his statement in this case. He had not stated the abovesaid fact to anyone till today he did not see whether 4 boys came from behind or that one of them had tried to snatch the bag being carried by Ram Goapl or that Ram Gopal had not left his bag or that he had tried to run backwards or that one of assailants had shot at Ram Gopal or that the shor fell on the back of Ram Gopal ji or that all the four boys (assailants) were having country-made pistol in their hands or that the above said four assailants chased Ram Gopal ji up to main Bazar Road chowk or that another assailants had shot at Ram Gopal or that thereafter, all the four assailants had fled away after picking the hand bag. He had not given any such statement to the police. He denied the suggestion that he had stated to the police about the description about the four assailants as they were between 25-30 years of age with medium built and wheatish complexion or that he had also stated to the police that he could identify them. He affirmed that Ram Gopal ji used to keep the sale proceeds in the bag. He volunteered that on that day the sale proceeds were not there in the bag. He affirmed that on the day of the incident he was carrying the bag when he proceeded towards his house. He FIR No. 160/2011 State Vs. Vijay Lamba Etc. Page No. 19 of 83 affirmed that the keys of the shops and any jewellery item which might had been received in the shop for repair also used to be carried by him in the bag. He denied the suggestion that during the investigation of this case, he had identified all the four assailants. He denied the suggestion that he had identified accused Vijay Lamba or that he had made statement in this regard to police. He denied the suggestion that he had identified accused Arun Kumar or that he had made statement in this regard to police. He volunteered that they were shown by the police and asked him to identify them but he had denied. He affirmed that he had identified one of the assailants namely Wahajuddin in Jail during TIP proceedings. He volunteered that he was shown a photograph by the police and he was asked to identify the man shown in the photograph and thereafter he had identified him. He denied the suggestion that he was not shown the photograph of accused Wahajuddin. In response to specific question by Addl. PP to the witness with regard to identification of accused, he replied that other persons were shown to him directly by the police whereas only the photograph of Wahajuddin was shown to him.
PW 14 denied the suggestion that on 16.04.2012, he had identified the forth accused in this case at Karkardooma Courts where he was produced or that he had come to know the name of that accused as Jahid from police or that he had made a statement to police to this effect on 16.04.2012. He denied the suggestion that he had identified all the abovesaid four accused namely Vijay Lamba, Arun Kumar, Wahazuddin and Jahid or that he was intentionally not identifying them in the Court. Two applications and TIP proceedings Ex.PW14/E in respect of accused FIR No. 160/2011 State Vs. Vijay Lamba Etc. Page No. 20 of 83 Wahazuddin running into four pages were shown to the witness. He denied the suggestion that he had been won over on behalf of the accused persons or that for this reason he had suppressed true facts or that for this reason he had resiled from his previous statement or that for this reason he was deposing falsely on oath or that for this reason he had not identified the four accused persons present before the Court.
In his cross-examination by ld. Defence counsel, he deposed that the items which were lying at the spot were key paw, two pairs of pajeb, one pair of ear ring, one gold ring, one silver ring. He did not know about the bracelet. There was a bag of black colour. The police officials might have taken the same into possession. He did not know if the said articles were kept by Deepak as he had left for hospital alongwith Late Ram Gopal. The articles which were lying there were having the stamp of their shop. He had refused to identify both the accused in police station as he had not seen the assailants. He had identified accused Wahajuddin at the instance of police as the photographs were shown to him and he was directed to identify him in jail in TIP proceedings by the police officials. He identified him as he was in photograph but in fact he did not identify him even in jail.
(iv) PW17 Atul Kumar is the driver of the deceased Ram Gopal Verma. He deposed that he was working as driver of one Sh. Ram Gopal Verma r/o F237, Gali No. 8, Shastri Park, Delhi and used to drive his Sumo Tata and Indica till 2011. When Sh. Ram Gopal Verma had sold out Tat Samo, he started working at his jewel shop at Shastri Park, Delhi. On 21.04.2011 at about 8.00 p.m. he had gone to the above-said jewellery shop for receiving his salary where Sh. Ram Gopal Verma's son Ashok FIR No. 160/2011 State Vs. Vijay Lamba Etc. Page No. 21 of 83 met him. At about 8.30 p.m. they closed the shop and left the shop on foot. He along with Ashok was walking together while Ram Gopal Verma was walking ahead to them. When they reached at the corner of Gall near Mandir, he heard a noise of fire and he found that Ram Gopal Verma fell down. They both immediately rushed to him and the articles i.e. jewellery items and his belonging were lying scattered. He had also noticed that 4-5 persons were running from there. He found that Ram Gopal Verma had received bullet injuries on his chest and he was bleeding from there. He and Ashok removed Ram Gopal Verma to St. Stephen Hospital in a van. He deposed that he cannot identify those 4-5 persons who were running from there after the fire shot as he had seen them from their back. He had not seen as to who had fired upon Ram Gopal Verma. After hearing the noise of fire, he had seen that Ram Gopal Verma was lying on the ground and 4-5 persons were running. Ram Gopal Vernu did not disclose anything when he reached there. He could not tell as to whether anything was robbed by those 4-5 persons from Ram Gopal Verma who had seen by him while running. In the hospital, they came to know that Ram Gopal Verma had died. He deposed that except this, nothing happened in his presence. No one from those 4-5 persons was ever arrested by the police in his presence. As he never joined the investigation with the police thereafter.
The witness was cross-examined by Ld. Addl. PP for State and during cross-examination, he deposed that his statement was not recorded by the police at any point of time. He denied that on 21/22-04-2011, his statement Mark-A was recorded by the police. He affirmed that when they left the shop after closing it FIR No. 160/2011 State Vs. Vijay Lamba Etc. Page No. 22 of 83 at 8.35 p.m., he along with Ram Babu, Ashok Verma and Ram Gopal, at that time Sh. Ram Gopal Verma was carrying a black colour hand bag containing keys of shop, cash and jewellery items. He denied that when they reached at the corner of Gali No. 8, F-Block, Shastri Park and took turn towards Mandir in the meantime, 4 boys came there and out of them, one boy tried to snatch the bag from Ram Gopal Verma who caught hold the bag strongly and did not allow the same to be snatched and they started running after turning back or that in the meantime, one boy who was carrying a country made pistol fired upon Ram Gopal Verma and bullet hit in the back of Ram Gopal or that besides having bullet injury in the back of Ram Gopal Verma, he continued running or that one another boy who was carrying country made pistol also fired Ram Gopal and the bullet hit to Ram Gopal Verma due to which, Ram Gopal Verma fell down or that all the four boys after picking the bag of Ram Gopal Verma ran away from there or that all that four boys were carrying country made pistols at that time and he so stated in his statement dated 21/22.04.2011 Mark A. He denied that since the said boys were carrying pistols in their hands, nobody dare to catch them or that when he ran towards his Maruti Van which was lying parked at Service Road under a tree of Peepal, he saw that the said boys were running ahead to him and he stated in his statement dated 21/22.04.2011 Mark-A. He denied that the said boys ran away from there in a Maruti car of white colour towards Zero Pushta which was parked at the Service Road or that he only noted down the number of said Maruti car as 6898 and he so stated in his statement dated 21/22.04.2011 Mark A. He affirmed that Ram Gopal Verma was removed in a Maruti Van. He denied that the FIR No. 160/2011 State Vs. Vijay Lamba Etc. Page No. 23 of 83 said Maruti was of mine. He denied that he had stated in his statement dared 21/22.04.2011 Mark A that said Maruti Van was his. He could not tell about the age group of those boys who had seen by him while running from there. He denied that he had stated in his statement that the said four boys were of the age group of 25-30 and were of wheatish (Gerua) colour or that he had also stated that he can identify those boys if shown to him. He denied that on 25.04.2011, he had gone to PS New Usmanpur as he was called there by the police and on reaching there, he had identified one Maruti car bearing registration No. DL-4CC-6898 of white colour, 800 CC which was parked in the police station while saying that the said car was the same car in which the assailants had ran away on the day of incident and he so stated in his supplementary statement dated 25.04.2011 Mark B. He denied that he was deposing falsely in this regard. He denied that on 05.06.2011, he along with Ashok Verma had gone to the police station and on reaching there, he had identified one person who was being interrogated by the police there as one of those four assailants who had murdered Ram Gopal Verma on 21.04.2011 along with his other three associates and he so stated in his supplementary statement dated 05.06.2011 Mark-C. He further denied that the name of the said person who was being interrogated as Vijay Lamba S/o Ram Lal or that he had fired a shot first upon Ram Gopal Verma when Ram Gopal Verma did not allow his bag to be snatched and he so stated in his supplementary statement dated 05.06.2011 Mark C. He denied that on 05.06.2011, he had identified the accused Vijay Lamba, present in the Court, who had fired a shot first upon deceased Ram Gopal Verma when he did not allow the assailants to snatch FIR No. 160/2011 State Vs. Vijay Lamba Etc. Page No. 24 of 83 his bag. He denied that he was not identifying the accused Vijay Lamba present in the Court as he has been won over. He further denied that on 13.07.2011, he along with Ashok Verma and Deepak Verma went to PS as they were called by the police and on reaching there he had identified one person who was being interrogated by the police as Arun Kumar S/o Suresh Kumar who was involved in the incident of 21.04.2011 along with his other associates or that he was also having a country made pistol at that time or that he had also tried to caught hold Ram Gopal Verma or that he is the same person who had ran away along with hand bag of Ram Gopal Verma while waiving the country made pistol in the air and he so stated in his supplementary statement dated 13.07.2011 Mark D. He denied that he was intentionally not identifying the accused Arun Kumar present in the Court as he has been won over. He denied that he was deposing falsely in this regard. He further denied that on 20.08.2011, he had joined the judicial TIP proceeding qua accused Wahajuddin @ Wahaju S/o Sirajuddin and in that proceeding, he had identified him as the same person was involved in the present case. He volunteered that he had identified accused Wahajuddin as he was shown to him in the police station by the police prior to his identification in Tihar Jail. He denied that accused was not shown to him in the police station at any point of time and he had identified him as he had seen him at the spot on the day of incident while carrying country made pistol in his hand and while escaping from the spot along with his other co-associates along with the bag of deceased Ram Gopal and he so stated in his supplementary statement dated 20.08.2011 Mark E. He further denied that he had seen all the accused persons present in the FIR No. 160/2011 State Vs. Vijay Lamba Etc. Page No. 25 of 83 court while committing robbery / murder. He denied that all the accused persons present in the Court were the same persons who had committed the murder of Ram Gopal Verma and robbed his bag containing jewellery. He denied that he was intentionally not identifying the accused persons as he has been won over or that he was deposing falsely.
In his cross-examination by ld. Defence counsel, he deposed that the police officials had shown accused Wahajuddin to him and the other witnesses in police station and directed them to identify him in jail and according to the police officials he identified Wahajuddin in jail also. He did not state that accused Wahajuddin was an assailant in the murder of Ram Gopal. He had never seen the accused at any point of time for committing any wrong with Ram Gopal. He was not able to identify accused Wahazuddin in jail if police officials would have not shown him earlier in police station.
(II) FORMAL/EXPERT/MEDICAL WITNESSES
(i) PW7 Dr. Sumit Kumar Jhalan is the doctor who had examined the deceased. He deposed that on 21.04.2011 at about 8:54 pm, injured Ram Gopal Verma s/o Asharfi Lal aged about 55 years was bought in the St. Stephen Hospital by Hitesh Jain. He examined the injured. Injured was brought dead in casualty. After local examination, he found one wound at left side chest on mid clavicular line, one wound on right exhilliary line on right sided chest and one wound on left sided flank on clavicular line. He declared the injured brought dead. MLC prepared by him to his effect as Ex.PW7/A. Witness was not cross-examined despite having given the opportunity.
FIR No. 160/2011 State Vs. Vijay Lamba Etc. Page No. 26 of 83
(ii) PW8 Ms. Mayuri Singh is the Ld. MM who had conducted the TIP of recovered robbed jewelery articles. She deposed that all the jewelery articles have been correctly identified by the complainant Deepak. She has proved the application for conducting TIP as Ex.PW8/A. Report prepared by her regarding the proceedings of TIP as Ex.PW8/B. Application moved by the IO for supply of copy of TIP proceedings was proved as Ex.PW8/C. The witness was not cross-examined despite having given the opportunity.
(iii) PW9 Sh. Sonu Agnihotri is the Ld. MM who had conducted the TIP proceedings of accused Vijay Lamba. He has proved the record pertaining to TIP proceedings as Ex.PW9/A to Ex.PW9/E. PW9 deposed that the accused Vijay Lamba had refused to participate in the TIP proceedings despite having been warned and cautioned that an adverse influence may be drawn against him during trial in case he does not join the TIP proceedings.
The witness was not cross-examined despite having given the opportunity.
(iv) PW16 Sanjay Kumar Verma is the relative of the deceased, who had identified the dead body of the deceased at GTB Hospital Mortuary. His statement was proved as Ex.PW16/A. The witness was not cross-examined despite having given the opportunity.
(v) PW18 Ms. Shuchi Laler is the Ld. MM who had conducted TIP of accused Arun Kumar and Wahajuddin @ Wahaju. As per her deposition, accused Arun Kumar has refused FIR No. 160/2011 State Vs. Vijay Lamba Etc. Page No. 27 of 83 to join the TIP proceedings despite having being given warning that an adverse influence may be drawn against him during the trial if he refused to join the proceedings. However, TIP of accused Wahajuddin @ Wahaju is successful, which has been correctly identified by two witnesses, namely, Atul Kumar and Deepak. The record pertaining to TIP, held on 07.07.2011 at Central Jail No. 8, was proved as Ex.PW18/A to Ex.PW18/C, and the record pertaining to TIP proceedings of accused Wahajuddin @ Wahaju held on 20.08.2011 at Central Jail No. 8 was proved as Ex.PW18/D and Ex.PW18/E and Ex.PW14/E. The witness was not cross-examined despite having given the opportunity.
(vi) PW20 Dr. Meghali Kelkar is the doctor who conducted postmortem of the deceased. She has proved the report prepared by her as Ex.PW20/A. As per her deposition, the cause of death of the deceased was shock as a result of antemortem injury to heart and lung produced by projectile of firearm. Injury No. 1 and 2 are sufficient to cause death in ordinary course of nature independently as well as collectively.
In her cross-examination, she denied the suggestion that she fabricated the report at the instance of IO to suit the prosecution story. She also denied the suggestion that she fabricated the report in mechanical manner and the postmortem of the deceased was not conducted in the proper manner.
(vii) PW22 Bishwajit Roy, Dy. SP (Finger Print), Central Finger Print Bureau is the finger print expert, who has proved the chance print examination report as Ex. PW22/A, which was prepared under the supervision of Sh Ravinder Kumar. He deposed that he had brought the original questioned FIR No. 160/2011 State Vs. Vijay Lamba Etc. Page No. 28 of 83 chance finger print and database print as Ex. PW22/C and PW22/D. The chart is Ex.PW22/E. They had received three chance prints and when the same were compared with computer database print of centre finger print bureau/NCRB, one chance print (left ring of PIN 00949308) was found identical with the database record to be of Vijay s/o Sh. Ram Lal, caste Punjabi, Age 32 yrs, R/o J-35. Ashok Vihar, Gurgaon, Haryana, PS Sec. 5. Gurgaon, Distt. Gurgaon.
In his cross-examination, he deposed that he could not tell the description of other remaining two chance prints which were not matched from their database. Their opinions were 100 per cent accurate. He denied the suggestion that expert opinions were never 100 per cent accurate. He further denied the suggestion that remaining unmatched chance prints were deliberately withheld by them as they were impressions of same hand. He denied the suggestion that the report Ex. PW22/A was incorrect. He had not brought any record pertaining to assignment of present file to Sh. Ravinder Kumar. Nor he had produced any rough notes which were prepared prior to or at the time of preparation of report.
(viii) PW23 Sh. Ravinder Kumar is the finger print expert, who deposed that on 06.05.2011, he was posted at Central Finger Print Bureau, East Block VII, R. K. Puram, Delhi as Inspector Finger Print. On that day, he had examined the questioned chance print sent by Sh. S. K. Jain, DCP and same were compared with the computerized finger print dababase (Central Finger Print Bureau/ NCRB) and was found identical with the left ring of PIN 00949308. He prepared manual comparison report with the finger prints slips and a chart of ridge minutia distance between eight points was prepared under the FIR No. 160/2011 State Vs. Vijay Lamba Etc. Page No. 29 of 83 supervision of Sh. Biswajit Roy vide Ex. PW22/C and Ex. PW22/E. On comparison, one chance print was found identical with the left ring finger of their database finger print record vide PIN 949308 belonging to Vijay s/o Sh. Ram Lal, caste Punjabi, age 32 years r/o J-35, Ashok Vihar, Gurgaon, Haryana, PS Sector-5, Gurgaon, Distt. Gurgaon.
The witness was cross-examined but nothing material came out in his cross-examination.
(ix) PW28 Ajit Singh is the Nodal Officer from Vodaphone Idea Ltd. and he has proved the CAF, Subscriber details, CDR and certificate u/s 65 B of the Indian Evidence Act, with regard to electronic records, pertaining to mobile No. 9911247355 as Ex.PW28/A to Ex.PW28/D. Similarly, he has also proved the CAF and subscriber details of mobile No. 9582095576, CAF and subscriber details of mobile no. 9999487903, certificate u/s 65 B of the Indian Evidence Act,with regard to electronic records, as Ex.PW28/F (colly). CDR of mobile No. 9582095576, Cell ID Chart and certificate u/s 65 B of the IEA,with regard to electronic records, were proved as Ex.PW28/G, Ex.PW28/I and Ex.PW28/H respectively. CDR of 9999487903 and certificate u/s 65 B of IEA,with regard to electronic records, was proved as Ex.PW28/K. Subscriber details of mobile No. 9582095576 and 9999487903 were proved as Ex.PW28/L. Witness was cross-examined but nothing material came out in his cross-examination.
(x) PW46 Ms. Seema Nain is the FSL Expert, who has carried out biological and serological examination on the clothes of deceased. He has proved the report prepared by her as FIR No. 160/2011 State Vs. Vijay Lamba Etc. Page No. 30 of 83 Ex.PW46/A. Witness was not cross-examined despite having given the opportunity.
(xi) PW47 Dr. Puneet Puri is the Ballistic Expert from FSL Rohini. He has examined the seized country-made pistols and bullets. He has proved the report prepared by him as Ex.PW47/A. However, he deposed that no opinion can be given as to whether the seized bullets Ex. EB1 and Ex. EB2 have been discharged from the seized country-made pistols, which are Ex. F1 in the present case and Ex.F1 in FIR No. 151/11, PS Crime Branch.
Witness was not cross-examined despite having given the opportunity.
(xii) PW48 Jairam is the Nodal Officer, Vodafone Idea Limited. He has proved the Cell ID Chart, Certificate u/s 65B of Indian Evidence Act, Subscriber detail with regard to mobile No. 7838039442 and guidelines letter dated 17.05.2012 regarding the storage of CAF/documents after permanent disconnection of telephone connection as Ex.PW48/A to Ex.PW48/E. Witness was cross-examined but nothing material came out in his cross-examination.
(III) POLICE OFFICIALS
(i) PW1 SI Mukesh Kumar Jain is the Draftsman, posted at North-East District. He has proved the scaled site plan prepared by him on 27.07.2011, as Ex.PW1/A. Witness was cross-examined but nothing material came out in his cross-examination.
(ii) PW3 HC Abhishek is the police official who was FIR No. 160/2011 State Vs. Vijay Lamba Etc. Page No. 31 of 83 performing patrolling duty on the date of incident. He deposed that that in the intervening night of 24-25-04-2011, he was patrolling in the area along with Ct. Devender and reached in Gali no. 3, New Usmanpur village, Delhi near House no. 148, he saw one white colour Maruti 800 car no. DL4CC-6898 in abandoned condition. Nobody was found there. It was suspected to be involved in the case. He communicated the same to SHO and on the instructions of SHO, he called Crime Team photographer who had taken photographs of the car and finger print expert ASI Rajinder Singh had lifted three chance prints, one from the rear view of mirror and one water bottle lying in the car. After inspection, Crime Team official left. On further inquiry through engine and chassis number of the case, it was revealed that car was stolen from the area of Bhajanpura was found registered and its original number was found to be different of Uttarakhand and the original no. was UA09-3524. The case was taken into police possession and subsequently deposited in the malkhana vide DD no. 50B. Subsequently, IO recorded his statement. He brought the original DD register and proved DD no. 50B as Ex. PW3/A. He did not remember the engine and chassis number which was found on checking of the above stated car but he had stated so in his statement recorded by the IO u/s 161 Cr.P.C.
In response to a leading question of Ld. Addl Public Prosecutor, he deposed that engine no. of the car was 23966279 and chassis no. was 2500842. Attention of the witness was drawn to statement Ex. PW3/PA where numbers were written.
He identified the Maruti 800 car bearing registration no. UA-09-3524 as Ex. P-3.
FIR No. 160/2011 State Vs. Vijay Lamba Etc. Page No. 32 of 83 In his cross-examination by Sh. Mohd. Hassan, ld. Amicus Curiae for all accused except Akram, he deposed that he did not know as to who was the owner of House No. 148, Gali No. 3. They had asked about the car from people of the surrounding houses but he could not tell about their names and particulars. It was informed to them that the car was parked there for the last 2- 3 days and the said information was given by passersby. Public persons used to pass through the place where the car was found stationed. No other vehicle was found stationed there near the said car. He did not notice whether there were any dust on the window glasses or not.
In his cross-examination by Sh. R.S. Goswami, ld. Counsel for accused Akram, he deposed that he had made his departure entry when he left the PS for patrolling but he did not remember the name of the DD writer or DO. He had made inquiry from the residents regarding the vehicle to ensure as to whether it belonged to any of their relatives. He affirmed that most of the vehicle used to park in the gali as the alleged car was parked in the area. After knowing the fact that the said car was stolen from the area of PS Bhajanpura, he got lodged DD at PS Bhajanpura in this regard. He affirmed that he was not aware with the chasis and engine number of the alleged vehicle when his statement was recorded before the Court on 27.08.2012.
(iii) PW4 HC Narayan Singh is the duty officer, posted at PS New Usmanpur at the time of incident. He has proved DD No. 37A, whereby information has been received regarding firing of one person at E-block, Gali No. 15, Near Durga Mandir, Shastri Park, Usmanpur, as Ex.PW4/C. He has also proved the factum of registration of present FIR as Ex.PW4/A, and the FIR No. 160/2011 State Vs. Vijay Lamba Etc. Page No. 33 of 83 endorsement made by him on the rukka as Ex.PW4/B. Witness was not cross-examined despite having given the opportunity.
(iv) PW5 ASI Som Prakash has proved PCR Form regarding a PCR call received from phone No. 8750353628 as Ex.PW5/A whereby it was informed that, "Block-E, Gali No. 15 main road near Durga mandir shastri park Usman pur ek aadmi ko kisi ne goli maar di hai".
Witness was not cross-examined despite having given the opportunity.
(v) PW6 HC Jagnarain is the MHC(M) of PS Crime Branch. He has proved the entries made in Register No. 19 and 21 and RC with regard to deposit and dispatch of exhibits in case FIR No. 151/11 PS Crime Branch, as Ex.PW6/A and Ex.PW6/B. The witness was cross-examined but nothing material came out in his cross-examination.
(vi) PW10 HC Satish Kumar is the MHC(M) of PS New Usmanpur. He has proved the entries with regard to the deposit and dispatch of exhibits to FSL as Ex.PW10/A to Ex.PW10/P. The witness was not cross-examined despite having given the opportunity.
(vii) PW11 Ct. Zile Singh is the photographer of the mobile crime team, North-East District. He has proved the photographs and negatives with regard to the recovered Maruti Car No. DL-4CC-6898 as Ex.PW11/A1 to Ex.PW11/A10.
In his cross-examination, he denied the suggestion that Ex.PW11/A1 to A5 were not the correct photographs. He further denied the suggestion that photographs Ex.PW11/A1 to A5 were fabricated by the IO and same were not obtained by him and he FIR No. 160/2011 State Vs. Vijay Lamba Etc. Page No. 34 of 83 was deposing falsely.
(viii) PW12 HC Shyam Lal is also a member of crime team, North-East District. He has proved the photographs and negatives thereof clicked by him on the direction of IO, at the spot on 21.04.2011, as Ex.PW12/A-1 to Ex.PW12/A-11 and Ex.PW12/B-1 to Ex.PW12/B-11.
In his cross-examination, he denied the suggestion that the same(photographs) were fabricated at the instance of IO to suit the prosecution story.
(ix) PW15 SI E.S. Yadav is the In-charge of mobile crime team, who had inspected the spot on the intervening night of 21/22.04.2011. He has proved the report regarding inspection of scene of crime as Ex.PW15/A. In his cross-examination, he affirmed that he did not prepare any site plan alongwith his report Ex.PW15/A. He also affirmed that his report is not supported with any photograph. He could not tell the number of the house, name of the owner however, it was in front of Aggarwal Provision Store. He did not remember the number of the house and name of the owners on the other side, however, there were houses in the other side. He denied the suggestion that his report Ex.PW15/A was a mechanical report or that he was deposing falsely.
(x) PW19 HC Waseeq Ahmed is the investigating police official of PS Crime Branch, who has taken part in investigation of case FIR No. 151/11 PS crime branch wherein accused vijay lamba was apprehended and one country-made pistol loaded with one live cartridge was recovered. He has deposed on the same lines of which PW29/SI N.S. Rana has deposed.
In his cross-examination, he deposed that he did not now FIR No. 160/2011 State Vs. Vijay Lamba Etc. Page No. 35 of 83 remember as to whether he had stated to the IO the fact that IO of their team had requested 6-7 public persons to join the investigation out of which the name of two public persons was revealed as Sonu and Birjesh. He did not now remember as to whether he had stated to the IO as to when the FIR Number was mentioned in the memos prepared by the IO. He denied the suggestion that no recovery was effected from the accused or that his signatures were obtained on blank paper or that the entire recovery as shown by them was planted one. He had never been to Gauwhati for the purpose of investigation of the present case with SI N.S. Rana. He denied the suggestion that the accused was falsely lifted from Gauwhati. He was not aware of the fact that the accused Vijay Lamba had already been acquitted in case FIR No. 151/11 on 29.08.2012.
(xi) PW21 SI Rajender Singh is the member of the mobile crime team, who had inspected the recovered Maruti 800 Car. He claimed that he had lifted the finger print from the car and he has proved the SOC (Finger Print Report) as Ex.PW21/A. In his cross-examination, he deposed that they reached at the spot at about 7:35/7:40 pm. His statement was recorded by the IO in the night after he had inspected. He did not remember whether the case details were noted at the top of his statement recorded by the IO at the time the statement was recorded.
(xii) PW24 HC Ishwar is the investigating police official of PS Crime Branch,who has taken part in investigation of case FIR No. 151/11 PS crime branch wherein accused vijay lamba was apprehended and one country-made pistol loaded with one live cartridge was recovered. He has deposed on the same lines on which PW29/SI N.S. Rana has deposed.
FIR No. 160/2011 State Vs. Vijay Lamba Etc. Page No. 36 of 83 Witness was cross-examined but nothing material came out in his cross-examination.
(xiii) PW25 HC Parminder deposed that he on 21.04.2011, he was posted at PS New Usman Pur, Delhi as Constable. On that day, he alongwith HC Pratap was patrolling the beat area of Shastri Park. While they were patrolling in the area at about 8:45 pm, they received an information that one person was shot at near Durga Mandir, F-Block Shastri Park, Delhi. After receiving this information, he alongwith HC Pratap reached there. SI Ashish and Ct. Dharminder also reached there. At the spot, they came to know that one person namely Ram Gopal Verma, Jeweller, was fired a shot by 3-4 persons and Ram Gopal Verma had already been removed to St. Stephen Hospital by his family members. Thereafter, after leaving him and HC Pratap, SI Ashish left the spot for the hospital alongwith Ct. Dharmender. Insp. Arjun Singh along with staff also reached there. Thereafter, the witness has deposed on the same line on which PW44/IO SI Ashish and PW27 Insp. Arjun Singh have deposed.
In his cross-examination, he deposed that they received information about the incident from some public persons. He did not ask the names and addresses of those persons who gave information to them about the incident. Those persons were the residents of the area of Shastri Park. IO had asked 3-4 passersby to join the investigation, but they refused and left the place without disclosing their names and addresses. He denied the suggestion that no public person was asked to join the investigation.
(ix) PW26 Ct. Devender Kumar is the investigating FIR No. 160/2011 State Vs. Vijay Lamba Etc. Page No. 37 of 83 police official accompanied IO/Insp. Arjun Singh (PW27) on 11.07.2011 at the time of PC remand of accused Arun Kumar Balmiki. He has correctly identified accused Arun Kumar Balmiki and he has deposed on the same lines on which PW27 has deposed.
In his cross-examination, he deposed that he did not remember as to whether IO had asked any public persons to join the investigation or not in his presence. No other police officials was present except him and IO when the accused pointed out the places.
(xv) PW27 ACP Arjun Singh is the second investigating officer (referred to as 'IO' at many places in the judgment) posted at PS New Usman Pur. He deposed that on 21.04.2011, he was posted in PS New Usman Pur as Inspector investigation. On that day, the duty officer informed him that a PCR call was received in the PS regarding causing bullet injury to a person in E-block Gali No.15, Main road near Durga Market, Shastri Park, Usman Pur. This information was recorded in PS vide DD No. 37A Ex.PW4/C and DD was marked SI Ashish for taking appropriate action. He was informed about the DD and thereafter, he also left for the spot where he came to know that the injured had already been sent to St. Stephen Hospital and Beat staff, HC Partap and Ct. Parminder were present there at spot. SI Ashish stated to have left the spot for St. Stephen Hosptial along with Ct. Dharminder. Ct. Dharminder along with SI Ashish came at the spot and SI Ashish prepared tehrir and sent Ct. Parminder to PS New Usman Pur for getting the FIR registered. During the proceedings, the crime team staff head by SI E. S. Yadav reached the spot. The crime team staff inspected the spot and the crime team FIR No. 160/2011 State Vs. Vijay Lamba Etc. Page No. 38 of 83 photographer clicked the photographs of the spot from different angels. Ct. Parminder returned back to the spot after getting the FIR registered and handed over him original tehir and copy of FIR as the further investigation of the case was taken up by PW27. He recorded statements of the I/C crime team and photographer. The I/C crime team gave him SOC Ex.PW15/A. SI Ashish handed over him seizure memos and other relevant documents prepared by him. He kept the same on case file. He inspected the spot at the instance of the son of deceased namely Deepak Verma, who was present at the spot and he prepared site plan Ex.PW27/A. He lifted the samples (exhibits) from the spot i.e. blood sample, earth control, one bullet pallet and kept the same into separate plastic containers and sealed with the seal of AS. He seized the same by preparing seizure memo Ex.PW2/B. Thereafter, he made enquries from the witnesses namely Ram Babu, Atul Kumar and Ashok Verma, who were present at the spot and recorded their statement u/s 161 Cr.P.C. During investigation, he made search for two suspects namely Ram Bharose and Raju Verma upon whom the complainant made suspicion in the complaint. After completing the proceedings at the spot, he along with staff returned to PS and deposited the case property in malkhana. He recorded statement of the police witnesses u/s 161 Cr.P.C and also recorded statement of Ct. Parvesh who was the special messenger.
On the next day, PW27 along with staff went to mortuary GTB Hospital, where Ct. Dharminder was present for protection of the dead body. The family members of the deceased i.e. son Deepak, nephew Sanjay Verma were present and they identified the dead boy. The dead body identification statement of both of FIR No. 160/2011 State Vs. Vijay Lamba Etc. Page No. 39 of 83 them was recorded by him vide Ex. PW2/C (Deepak Verma) and that of Sanjay Kumar Verma Ex.PW6/A. He prepared inquest papers (12 in number). He prepared request for the postmortem of the dead body of Ram Gopal Verma vide Ex.PW2/E. The Death Report Form is Ex.PW2/D and brief facts are Ex.PW27/B. After post-mortem, the dead body was handed over to the legal heirs i.e. Deepak Verma vide handing over memo Ex.PW2/F. Ct. Dharminder produced before him the sealed exhibits i.e. underwear of deceased, blood samples of deceased and bullet pallet retrieved from dead body which the doctor had given to him after the post-mortem of the deceased along with sample seal of the hospital vide seizure memo Ex.PW27/C. He recorded statement of Ct. Dharminder. After completing the proceedings they came back to PS and he deposited in malkhana. Thereafter, he along with Ct. Tej Veer Singh, Ct. Parminder and SI Girish left the PS and went to the place of incident and made local enquiry about any person who might have seen the incident or identified the accused persons, however, no such person could be found. He recorded statement of one Hitesh who had taken the injured to the hospital. After making investigation, they returned to PS. On next day i.e. 23.04.2011, the suspects namely Raju Verma and Ram Bharose came in the PS and PW27 interrogated both of them, however, involvement of both these persons was not found.
During the statement of the witness Atul Kumar, PW 27 came to know that four accused persons had escaped in white Maruti car having No. '6898'.
PW27 further testified that on 25.04.2011, HC Abhishek during his patrolling duty in the area, noticed the above no. car FIR No. 160/2011 State Vs. Vijay Lamba Etc. Page No. 40 of 83 on which the no. plate of no. DL4CC6898 was fixed and the said car was lying parked in front of house no. 148, gali no. 3, New Usman Pur village. HC Abhishek informed the crime and the crime team staff reached the spot and inspected the above-said car. In the above-mentioned car, three chance prints were found by the finger print expert crime team. The crime team photographer also photographed the said car. The car was seized by the HC Abhishek u/s 102 Cr.P.C. vide DD No. 50B, PS New Usman Pur vide seizure memo Ex. PW3/A. HC Abhishek also checked the particulars of the said car, which was found stolen from the areas of PS Bhajan Pura in connection with FIR No. 147/11, PS Bhajan Pura and real no. of the above car was UA093524. HC Abhishek deposited the car in malkhana, PS New Usman Pur. In the afternoon, when he reached PS New Usman Pur after attending KKD Courts, HC Abhishek told him about car noted above. He collected the photocopies of the documents which he prepared and recorded his statement and statement of Ct. Devender, who remained present in the proceedings with HC Abhishek, u/s 161 Cr.P.C. He went to the office of the crime team, North-East Dist. Shahdara and recorded statement of the crime team photographer and ASI Rajender fingerprint expert. Thereafter, he returned to PS. He had called witness Atul Kumar and shown him the above-mentioned car which was seized by HC Abhishek and Atul identified the car as the same car in which the accused persons ran away from the spot. He recorded his supplementary statement u/s 161 Cr.P.C.
He claimed that during investigation, he made search for the suspects of the crime. On 27.04.2011, he collected postmortem report Ex.PW20/A. He had collected the FIR No. 160/2011 State Vs. Vijay Lamba Etc. Page No. 41 of 83 photographs from the crime team vide Ex.PW12/B1 to Ex.PW12/B-11.
He further testified that on 29.04.2011, he received information that the chance print which were lifted by the crime team from the car could not be matched with the database of Finger Print Bureau Kamla Market. The report of ASI Rajender Singh Finger Print Expert is Ex.PW21/A. Thereafter, after consultation with the senior police officials, on 02.05.2011, the chance prints were sent to NCRB R.K. Puram for examination and opinion through forwarding letter under signatures of DCP Sh. S.K. Jain vide Ex. PW27/D. On 05.05.2011, information was received from NCRB RK Puram that one of the chance print matched with the data base of convict Vijay S/o Ram Lal, resident of J-35 Ashok Vihar, Gurgaon. It was revealed that the case in which the said Vijay was convicted, was of FIR No. 337/09 of PS city Gurgaon u/s 379/356 IPC. On this information, he along with staff went to the said address of accused Vijay, but found that said person Vijay was not residing there. He contacted the PS city Gurgaon and came to know that Vijay was having involvement in 8-9 cases, but since he had already completed his incarnation in jail and after completing the period of incarnation, he was released, However, during investigation, one another address about accused Vijay was revealed that he resided at WZ11, Om Vihar, Uttam Nagar, Delhi. On the next day, he along with his staff went to Uttam Nagar at the address of accused, but he was not found there and it was revealed that Vijay was BC of area of PS Uttam Nagar and having involvement in about 35-40 cases, but he left from said address of Uttam Nagar about 6-7 years ago. During investigation, they went to Bhondsi Jail, FIR No. 160/2011 State Vs. Vijay Lamba Etc. Page No. 42 of 83 Gurgaon, Haryana and checked the record of Vijay, where from address of his surety was found namely Mohd. Rashid, S/o Mohd. Zaffar, R/o C-44/218, Gali No. 17 Gamri Extension, Kartar Nagar, Delhi. Thereafter, they reached to the said address of surety. The surety Mohd. Rashid told that younger brother of Rashid namely Akram knows Vijay and complete name of Vijay is Vijay Lamba. Thereafter, during investigation, they came to know about the address of Ajay, brother of Vijay Lamba. They went to the address of Ajay at J-281/33B, Gali No.6, Kartar Nagar, Delhi, but the said premises was found locked and the said Ajay was not found.
PW27 further claimed that during further investigation, they came to know that accused persons used to meet at the factory of Nadeem situated at H-61/12, Jaiprakash Nagar, Gonda. They went there and found the factory locked. On developing information, they came to know that suspects Vijay Lamba, Arun Kumar, Wahajuddin, Zahid, Bale and Akram used to visit the factory of Nadeem. They came to know that Arun Kumar, Wahajuddin, and Zahid belong to UP by birth. They searched for the accused including at their residence at UP. However, they were not found.
He further deposed that on 03.06.2011, they received information from SOS Crime Branch that they had arrested Vijay Lamba in case FIR No. 151/11 PS Crime Branch wherein he had disclosed about his involvement in the present case. He reached crime branch office and collected the relevant documents of case FIR No. 151/11 PS Crime Branch. The police officials who arrested the accused Vijay were examined by him and he recorded their statements. On 04.06.2011, accused was produced FIR No. 160/2011 State Vs. Vijay Lamba Etc. Page No. 43 of 83 before the concerned Court. He gave an application to formally arrest and interrogate the accused vide Ex.PW27/E, which was allowed. Accordingly, he interrogated the accused and arrested him vide arrest memo Ex.PW25/A. He personally searched the accused vide memo Ex.PW25/B. He recorded disclosure statement of the accused Vijay vide Ex.PW25/C. He moved an application for conducting TIP of accused Vijay Lamba vide Ex.PW9/A, which was allowed. However, the accused refused to participate in the said proceedings. Thereafter, he took the copy of the TIP proceedings vide request letter Ex.PW9/D. Thereafter, he moved an application for taking PC remand of accused Vijay vide Ex.PW27/F and two days PC remand was granted. He along with Ct. Tejvir, Ct. Parminder and accused Vijay Lamba went to the house of the accused at J-281/33B, Kartar Nagar, Delhi. They along with accused went inside his room of the accused where one big bag was lying on a slab of a wall containing clothes of the accused. Accused took out a small rexine bag from the said big bag. The said rexine bag contain one gold finger ring, one silver finger ring (on which one stone was embedded), one pair of anklet, one bunch of keys, some visiting cards of deceased (in the name of Monu Jewellers), one card of a shopping mall, etc. the accused told them that these articles were his share of the looted property/ articles of the present case. He put the said articles in a cloth pullanda and sealed it with the seal of AS and seized the same vide seizure memo Ex.PW25/D. Thereafter, accused took them to the place of occurrence where he prepared pointing out memo vide Ex. PW25/F. Thereafter, accused took them to the place where he parked the car and he prepared pointing out memo in this regard vide Ex.PW25/E. Thereafter, FIR No. 160/2011 State Vs. Vijay Lamba Etc. Page No. 44 of 83 they returned to the PS and deposited the case property in Malkhana. On the next day, some eyewitnesses namely, Deepak Verma, Atul Kumar, and Ashok Verma came to the PS, who all identified accused Vijay. He recorded their statements. They searched for the other accused persons but none was found. Thereafter, accused Vijay was sent to JC. On 23.06.2011, an information was received from SOG Bijnor that accused Arun Kumar Balmiki had surrendered in some case at Muradabad, UP. Thereafter, they got issued his production warrant. On 30.06.2011, accused Arun Kumar was produced before the concerned Court and with the permission of the Court vide request application Ex.PW27/G, the accused was formally arrested vide memo Ex.PW31/A and personally searched vide memo Ex.PW31/X1. He recorded disclosure statement of the accused Arun Kumar vide Ex.PW31/B. He moved TIP application before the Court vide Ex.PW27/H which was allowed.
PW 27 further claimed that on 06.07.2011, he received a secret information that accused Akram will come on Pushta road. He called Ct. Parminder and he alongwith Ct. Parminder and the secret informer went to Pushta Road where at about 7:30 am, one boy was seen coming on the Pushta Road and on identification by the secret informer, the said boy was apprehended. On interrogation, he disclosed his name as Akram. He also disclosed about his involvement in the present case. He arrested him vide memo Ex.PW25/G and personally searched the accused vide memo Ex.PW25/H. He recorded disclosure statement of the accused Akram vide Ex.PW25/I. On the next day, he was sent to JC.
FIR No. 160/2011 State Vs. Vijay Lamba Etc. Page No. 45 of 83 He further testified that on 07.07.2011, the accused Arun Kumar Balimiki refused to participate in TIP proceedings. He collected the TIP proceedings documents. He took two days PC of accused Arun on 11.07.2011. Accused Arun took them to the place of occurrence and he prepared pointing out memo Ex.PW26/A. Accused also showed them the place where they left the car and he prepared pointing out memo Ex. PW26/B. On 12.07.2011, accused took them to his village Kuchwali PS Chajlet Dist. Muradabad, UP. They initially went to local police station and SI Ashok and one Constable of the local PS accompanied them to the house of accused Arun. They reached at the house of the Arun and went inside the room where on a slab of a wall, one polythene bag was lying. Accused took out that polythene bag from the slab and in the said bag, one desi katta of 315 bore alongwith two live cartridges were recovered. He prepared a sketch of the said katta and cartridges vide memo Mark PX. He prepared two pullandas in one of which, he put the katta and in the other one, he put two cartridges. He sealed both of the said pullandas with the seal of AS and seized vide seizure memo Ex. PW35/A. Accused also took out one pair of ear rings (jumka) from a iron box kept in the said room itself. He kept the same in a pullanda and sealed it with the seal of AS and seized the same vide seizure memo Ex.PW35/B. Thereafter, accused took them to the houses of other accused persons, but none was found at their respective houses. Thereafter, they returned to the PS and deposited the case property in the Malkhana. On 13.07.2011, eyewitnesses of the present case, namely, Deepak Verma, Ashok Verma and Atul Kumar came to the PS and they identified the accused Arun. He recorded their statements in this FIR No. 160/2011 State Vs. Vijay Lamba Etc. Page No. 46 of 83 regard. Thereafter, the accused was sent to JC by the Court.
PW27 further claimed that on 20.07.2011, an information was received from SOG Bijnor that accused Wahajuddin was arrested in case FIR No. 151/11 u/s 302/394 IPC PS Noorpur, Bijnor, UP. Thereafter, they got issued his production warrant.
On 25.07.2011, PW27 got prepared a scaled site plan through SI Mukesh Kumar Jain at the instance of eyewitness Deepak Verma vide Ex.PW1/A. On 29.07.2011, biological exhibits of the case were deposited in the FSL, Rohini through Ct. Manoj Kumar. In the meantime, he recorded the statement of the witnesses. During investigation on 23.06.2011, he got issued NBWs against other accused persons, namely, Zahid, Wahazuddin, Akram, Bale and Nadeem. However, on 29.07.2011, he got issued the proceedings u/s 82 Cr.P.C. against accused Zahid, Bale and Nadeem as they were still absconding then. On 01.08.2011, he moved an application before the ACMM Court for transfer of case property from Crime Branch to their PS, which was allowed. Accordingly, Ct. Praveen was sent and he brought the said case property from the crime branch and the same was deposited in the malkhana.
PW27 further deposed that on 10.08.2011, accused Wahajuddin was produced before the concerned Court and with the permission of the Court, the accused was formally arrested vide memo Ex.PW32/B. He personally searched the accused vide memo Ex.PW32/C. He recorded a disclosure statement of the accused Wahajuddin vide Ex.PW32/A. He moved TIP application before the Court, which was allowed. During the said TIP, the accused was correctly identified by the three witnesses on 20.08.2011.
FIR No. 160/2011 State Vs. Vijay Lamba Etc. Page No. 47 of 83 On 18.08.2011, the case properties i.e. Kattas, cartridges and pallets were deposited in FSL, Rohini for their ballistic examination through Ct. Azad Singh.
On 21.08.2011, PW27 took one day PC remand of Wahajuddin. Accused identified the place of occurrence vide pointing out memo Ex.PW27/I. Accused also identified the place where they left the vehicle i.e. Maruti Car vide pointing out memo Ex.PW27/J. On 26.08.2011, TIP of the case property was got conducted wherein the case property was correctly identified by complainant Deepak Verma vide proceeding Ex.PW8/B. During investigation, he also procured of CDRs of mobile phones of accused persons, PCR call forms, photographs and scaled site plan. Thereafter, he prepared a charge-sheet and filed it before the Court.
On 17.09.2011, PW27 got issued the proceedings u/s 83 Cr.P.C. against the absconding accused persons, namely, Zahid, Bale @ Abrar and Nadeem.
On 29.11.2011, an information was received from SOS Crime Branch that accused Bale has been arrested by them vide Kalandra u/s 41.1 Cr.P.C. DD No. 7 PS Crime Branch. He reached the office SOS Crime Branch and took documents regarding the said kalandra. He recorded the statement of raiding team i.e. SI Ravinder Teotia and Ct. Devender.
PW27 further testified that on 30.11.2011, accused Bale was produced before concerned Court and with the permission of the Court, the accused was interrogated and was formally arrested vide memo Ex.PW41/B and personally searched vide memo Ex.PW41/C. He recorded disclosure statement of the FIR No. 160/2011 State Vs. Vijay Lamba Etc. Page No. 48 of 83 accused vide memo Ex.PW41/A. He took one day PC remand of the accused Bale. He made search of the other accused persons with the help of the accused Bale, but they were not found. On the next day, the accused Bale was sent to JC. In the meantime, he received the result from FSL. He also collected sanction u/s 39 Arms Act regarding the recovered pistol from accused Arun Kumar. He also collected the CDR and CAF of mobile phone of the accused Bale. He also got declared PO both absconding accused persons, namely, Zahid and Nadeem. Thereafter, he prepared the supplementary charge-sheet and filed it before the Court.
PW27 further claimed that on 24.03.2012, an information was received from Special Unit, Crime Branch, Sun Light Colony, Delhi regarding arrest of accused Zahid by them vide case FIR No. 77/12 u/s 399/402 IPC PS Crime Branch. On 26.03.2012, he went to the office of Special Unit, Crime Branch, Delhi and collected the relevant documents of the aforesaid FIR No. 77/12. He examined and recorded the statement of raiding team of the Crime Branch. He further deposed that on 31.03.2012, the accused Zahid was produced before the concerned Court and after taking the permission from the Court, the accused was interrogated and arrested vide memo Ex.PW27/K and personally searched the accused vide memo Ex.PW27/L. He recorded disclosure statement of the accused vide memo Ex.PW27/M. He moved an application for TIP Proceedings which was allowed. However, accused refused to participate in the TIP proceedings. The accused Zahid was sent to JC. He sent the recovery bullet pallets to the FSL for the comparison with the recovered pistol from the accused Zahid by FIR No. 160/2011 State Vs. Vijay Lamba Etc. Page No. 49 of 83 the crime branch itself.
PW27 claimed that on 16.04.2012, when the accused was again produced before the court, three witnesses in the present case, namely, Deepak, Ashok and Atul, who were also present in the Court premises, correctly identified the accused Zahid. In this regard, he recorded their statement. Thereafter, he filed the supplementary charge-sheet.
PW27 has correctly identified accused Arun Kumar Balmiki, Wahazuddin, Vijay Lamba, Akram and Bale @ Abrar in the court. By that time, accused Zahid was already declared PO.PW 27 has identified the case property i.e. Ex.P3, Ex.P4, Ex.P5, Ex.P6 and Ex.P8 (articles recovered from accused Vijay Lamba); Ex.P9/Ex.Y3 (pair of jhumki recovered from accused Arun Kumar); Ex.Y1 and Ex.Y2 (i.e. country made pistol and cartridge recovered from accused Arun Kumar).
In his cross-examination, he deposed that he was not aware of previous case history of accused Vijay Lamba prior to 06.05.2011. He did not personally seize the bottle from which finger prints were lifted. That bottle had not been seized in the present case. Nor he had placed on record the photograph of the said bottle. He had not seized the rear view mirror from which the finger prints had been lifted. He was not in position to tell as to whether any specific photograph of the rear view mirror from which the finger prints had been lifted, had been taken or not. He had not recorded the statements of any resident of the locality from where the Maruti 800 Car was seized. Nor he conducted any enquiry from the residents residing in the vicinity. He did not now remember the name of owner of H.No. 281/33 B Kartar Nagar Delhi from where the incriminating articles were FIR No. 160/2011 State Vs. Vijay Lamba Etc. Page No. 50 of 83 recovered. He did not now remember as to whether he had conducted any enquiry from the said owner. There were other houses as well nearby the aforesaid house. He did not conduct any enquiry from the occupants of nearby houses. He had not placed on record any document to show that accused Vijay Lamba is the owner/ tenant of said house. He denied the suggestion that all the incriminating articles shown to had been recovered from H.No. 281/33 B Kartar Nagar Delhi were planted upon the accused nor he had visited the said house and that is why no public witness had been joined in the investigation. Nor he had joined any goldsmith in the investigation of the present case in order to get the recovered jewelry articles verified. He did not now remember the date on which the face of accused Vijay Lamba was shown to complainant Deepak Verma as to whether he was shown on the date of obtaining PC remand or on next day. He had not placed any record any invoice/ bill with regard to the fare paid to that hired private vehicle. He did not remember as to whether he had claimed any reimbursement regarding the same from his department. He had not placed on record any proof with regard to request for reimbursement of the said bill/ invoice. He had not made any effort to contact the head of the Village where the house of accused Arun Kumar was located. He had not placed on record any documentary proof regarding ownership of house of accused Arun Kumar. The house of the accused was surrounded with agriculture field. He had not placed on record any proof regarding the ownership of adjoining agriculture field from the house of accused. He did not now remember the name of driver of the vehicle in which they visited the house of accused. Family members of the accused which comprises only FIR No. 160/2011 State Vs. Vijay Lamba Etc. Page No. 51 of 83 two ladies, whose name he did not remember, were found in the house of accused. He had not recorded either the names or statement of those ladies. He had made effort to join public witness in the investigation at the time of arrest of accused Akram but they refused. No legal action had been initiated against those public persons. The place of arrest of accused Akram was situated at a distance of about 1½ to 2 km from PS. The said place was a public place.
(xvi) PW29 Retd. SI N.S. Rana is the investigating police official posted at SOS Crime Branch Daryaganj. He deposed that on 02.06.2011, he was posted at SOS Crime Branch Daryaganj as SI. HC Wasik Ahmad and Ct. Ishwar produced one secret informer before him that one person namely Vijay Lamba, who is involved in doing several crimes and also involved in commission of the murder of a jeweler in the area of PS New Usman Pur, would come to Nirman Vihar Metro Station between 3-4 pm and he can be apprehended. He prepared raiding party on the basis of the secret information consisting of SI Ravinder Teotia, HC Wasik Ahmad, HC Dharminder, Ct. Devender, Ct. Ishwar Singh, secret informer and Insp. Sunil Kumar. Thereafter, they left for Nirman Vihar Metro Station. After reaching there, they took out positions and at about 4:45 pm, the secret informer pointed out towards one person who was coming on foot towards Nirman Vihar Metro Station and identified him as Vijay Lamba. Thereafter, at the instance of secret informer, they apprehended said person whose name was revealed Vijay Lamba on inquiry. On the cursory search of accused Vijay Lamba, one loaded katta (country-made pistol) recovered from his right dub and from right pocket, one live cartridge recovered. He prepared sketch of FIR No. 160/2011 State Vs. Vijay Lamba Etc. Page No. 52 of 83 the country-made pistol and cartridge after unloading the same, from which one live cartridge was taken out from the country- made pistol. I converted the country-made pistol and cartridge into pullanda and sealed with the seal of NSR. The sketch of the country-made pistol and cartridges Mark PW24/A and seizure memo Mark PW24/B were exhibited as Ex.PW29/A and Ex.PW29/B (the photocopies of the documents were compared with the original document available on the original judicial file of FIR No. 151/11 PS Crime Branch u/s 25 Arms Act). He prepared rukka and gave the same to Ct. Ishwar Singh for getting the FIR registered from PS Crime Branch. After registration of the FIR, further investigation was marked to HC Vikram Dutt, who reached the spot during proceedings. He handed over the accused Vijay Lamba alongwith all the memos and sealed pullandas. HC Vikram Dutt prepared site plan at his pointing out. IO recorded his statement and relieved me. On 03.06.2011, the IO of the present case FIR came into his office and recorded his statement. The witness has correctly identified accused Vijay Lamba in the court.
In his cross-examination, he deposed that he alongwith the police official came on one Tavera and one government gyspy. He did not remember the registration number of the Tavera vehicle and government vehicle. He did not remember who was driving the Tavera vehicle. He did not remember the measurement of the country made pistol and cartridge. The country made pistol was of Iron colour i.e. black colour. He did not remember if anything was engraved over the recovered country made pistol. He did not know the bore of country made pistol. After leaving their office, upon reaching near Nirman FIR No. 160/2011 State Vs. Vijay Lamba Etc. Page No. 53 of 83 Vihar Metrol Station, he requested some public persons to join investigation. None of those public persons disclosed their names and addresses and left while seeking personal excuses. He did not remember the name of PS and arrival or departure entry where the arrival was made in Guwhati. He went to Guwhati by train. He denied the suggestion that accused Vijay Lamba was lifted from Guwhati or that he was brought to Delhi by air and falsely implicated in this case. He denied the suggestion that to work out other cases, accused Vijay Lamba had been falsey implicated in this case.
(xvii) PW30 ASI Pratap Singh has deposed on the same lines on which PW25 HC Pramender has deposed.
Witness was cross-examined but nothing material came out in his cross-examination.
(xviii) PW31 ASI Shyam Nilwarin is the investigating police official who has accompanied IO/Insp. Arjun Singh (PW27) on 30.06.2011 at the time of arrest of accused Arun Kumar Balmiki. He has deposed on the same lines on which IO/Insp. Arjun Singh (PW27) has deposed. He has correctly identified the accused Arun Kumar Valmiki.
Witness was cross-examined but nothing material came out in his cross-examination.
(xix) PW32 ASI Ravinder Kumar is the investigating police official who has accompanied the IO/Insp. Arjun Singh (PW27) at the time of arrest of accused Wahazuddin @ Wahazu on 10.08.2011. He has deposed on the same lines on which PW27 IO/Insp. Arjun Singh has deposed.
In his cross-examination, he deposed that he was not ware whether the DD entry for departure was made in police station.
FIR No. 160/2011 State Vs. Vijay Lamba Etc. Page No. 54 of 83 He did not know in which case the accused was lodged in the UP Jail and also he was not aware from which district he was brought in Delhi Courts. He also did not know that in which case the production warrant was sent in UP Jail for producing the accused.
(xx) PW33 Retd. ASI Vikram Dutt is the investigating police official posted at SOS Crime Branch. He deposed that on 02.6.2011, he was posted in SOS Crime Branch. On that day accused Vijay Lamba was arrested by SI N. S. Rana in case FIR No. 151/2011 under section 25 Arms Act. After registration of the FIR the further investigating of the case was assigned to him. During investigation when he interrogated the accused Vijay Lamba, he disclosed that in the incident of 21.4.2011 committed in the area of police station New Usmanpur, he along with his associates, had committed robbery of the bag a jewellary in the night time and in the said bag Rs. 11,000/-, some jewellary and keys were found and out of the said jewellary one bracelet of rudraksh was worn by him. The accused was wearing one rudraksh bracelet in his right hand and the accused disclosed that it was the same bracelet that is robbed case property. He seized the said rudraksh bracelet by putting it into a plastic container and which was sealed with the seal of BDS. He seized the same by preparing seizure memo. He had also recorded disclosure statement of the accused and also prepared his arrest memo and personal search memo. He informed the duty officer of police station New Usmapur about the disclosure statement of the accused. Lateron, in due course, the IO of the present case collected the relevant documents of case FIR No. 151/2011, police station Branch. The photo copy of disclosure statement of FIR No. 160/2011 State Vs. Vijay Lamba Etc. Page No. 55 of 83 accused Vijay Lamba as Mark PW-24/C exhibited as Ex.PW33/A (the document was compared with the original judicial file of FIR no. 151/2011 of police station Crime Branch which was lying attached with the judicial file of the present case). The photo copy of seizure memo of rudraksh bracelet recovered from accused Vijay Lamba as Ex.PW33/B (the document was compared with the original judicial file of FIR no. 151/2011 of police station Crime Branch which was lying attached with the judicial file of the present case). He correctly identified accused Vijay Lamba. He correctly identified the case property i.e. one golden colour chain with 13 rudraksh of brownish colour (moti size type) having S type lock as Ex.P-10.
In his cross-examination, he deposed that departure entry was made in this regard but he did not remember its number. He did not remember the site plan prepared by him in FIR No. 151/11 PS Crime Branch does not bear signature of SI N.S. Rana. During investigation of FIR No. 151/11 PS Crime Branch, he did not get the Rudraksh bracelet identified in judicial TIP from the complainant of the present case nor he had taken any ownership proof from the complainant.
(xxi) PW34 ASI Azad Singh is the investigating police official who has deposited exhibits at FSL Rohini on 18.08.2011, and obtained acknowledgment therefrom.
Witness was cross-examined but nothing material came out in his cross-examination.
(xxii) PW35 Retd. Insp. Ashok Kumar deposed that on 12.07.2011, he was posted at Chajlet Dist., Muradabad, UP as SI. At about 12:30 pm, Ct. Tejvir Singh, Ct. Pawan, Ct. Sishpal, accused Arun Kumar Walmiki and IO/Insp. Arjun Singh came at FIR No. 160/2011 State Vs. Vijay Lamba Etc. Page No. 56 of 83 PS and informed that accused made disclosure statement wherein, he stated that he could get recovered country-made pistol and case property related to present matter. IO got lodged DD entry regarding his arrival and departure to the Kuchwali, house of accused. Thereafter, they left for the house of accused Arun Kumar Walmiki. Accused led them to his house. They entered in the house of accused in one room located towards left side. Accused produced one plastic from "Tan/ slab". The said polythene was opened by IO. It was containing country-made pistol and two live cartridges. IO prepared sketch of the said country-made pistol and live cartridges. IO also measured the countrymade pistol and written the same on the sketch vide Mark PX. The countrymade pistol was of 315 bore. IO seized the countrymade pistol and live cartridges (at the bottom of live cartridges, KF 8 mm was written) after sealing them with the seal of 'AS' vide seizure memo Ex.PW35/A. Accused also produced one polythene from one iron box which was kept in the room. IO checked the said polythene and it was containing one pair of Jhumka. Thereafter, IO converted the said pair of Jhumka into pullanda and seal it with the seal of AS. IO seized the pullanda vide seizure memo Ex.PW35/B. After recovery, they left for PS. He identified accused Arjun in the court correctly as the person who got recovered the case property. He identified the one country made pistol bearing "315" which was got recovered by the accused as Ex.Y1; two used cartridges (8 mm KF written on the bottom of the cartridges) which were got recovered by accused as Ex.Y2 (Colly) and one pair of yellow colour Jhumka which was recovered from the accused as Ex.Y3.
In his cross-examination, he deposed that the the distance FIR No. 160/2011 State Vs. Vijay Lamba Etc. Page No. 57 of 83 between PS and house of accused is about 12 to 15 kms. The road further leads towards Muradabad. He affirmed that the road was busy. IO requested public persons to join the investigation but they refused. IO did not call Pardhan to join the investigation. He volunteered that the house of accused located outside the village. He requested local residence to join the investigation but they refused. IO did not serve any notice upon public persons for their refusal. No entry was made at PS regarding the non-joining of public witnesses in the investigation. He deposed that one school is located near by the house of accused. However, I do not remember the name of the said school. He denied the suggestion that IO did not call Pardhan or public persons at the time of recovery because case property is planted upon accused. He did not remember exact size of the iron box from whom the pair of jhumka was recovered. He denied the suggestion that accused is falsely implicated in present matter because he is involved in criminal matter pending at PS Chejlet.
(xxiii) PW36 HC Parvesh Kumar is the investigating police official who has supplied the copy of FIR to the Ld. Ilaqa MM and Senior police official on the intervening night of 21/22.04.2011.
Witness was cross-examined but nothing material came out in his cross-examination.
(xxiv) PW37 Ct. Dharmender Kaushik is the investigating police official who had accompanied the IO/SI Ashish Dahima (PW44) at the spot. He has deposed on the same line of which PW44 has deposed.
In his cross-examination, he deposed that they went to the spot i.e. F Block, Durga Mandir, Shastri Park Nukkad (corner).
FIR No. 160/2011 State Vs. Vijay Lamba Etc. Page No. 58 of 83 About 30-40 public persons were present at the spot when he reached there. 3-4 persons who informed them about the incident were already present there before his arrival. He could not tell as to whether these persons belonged to the same locality where the incident took place or not. He could not tell their names and addresses. HC Partap had reached the spot after about 15-20 minutes of his arrival.
(xxv) PW38 ASI Tejvir Singh is the investigating police official who had accompanied the IO/Insp. Arjun Singh (PW27) at the time of arrested of accused Vijay Lamba in the Karkardooma Court on 04.06.2011. He has correctly identified the accused Vijay Lamba. Thereafter, he has deposed the same line on which PW27 has deposed.
In his cross-examination, he deposed that while proceeding towards Kartar Nagar, IO had requested 5-7 public persons to join the investigation but they refused citing their personal difficulties. They had also refused to reveal their respective names and addresses. No legal action had been initiated against them. He did not know how many tenants were residing in the above-said house. IO had called the residents of first to third floor to join the investigation, but they refused. He did not remember if IO had asked about their names. IO had made inquiry from the neighborhood to ascertain the ownership of H.No. J-281, Kartar Nagar, Usman Pur, Delhi. He could not tell the names of those neighbors. In his presence, IO had not collected any document regarding the ownership of above-said hosue. At the time of their arrival in the said house, the main door was opened by the sister-in-law of accused Vijay. He could not tell her name. No other adult members was found present in the FIR No. 160/2011 State Vs. Vijay Lamba Etc. Page No. 59 of 83 said house.
(xxvi) PW39 HC Praveen Kumar is the investigating police official who has brought relevant exhibits, seized in FIR No. 151/11 PS Crime Branch, from the office of Crime Branch Nehru Place to PS New Usman Pur.
In his cross-examination, he deposed that he made a DD entry regarding his departure from the PS. However, he did not remember its number and time.
(xxvii) PW40 HC Manoj Kumar is the investigating police official who took exhibits from malkhana of PS New Usman Pur to FSL Rohini, and obtained acknowledgment therefrom on 29.07.2011.
In his cross-examination, he deposed that he made DD entry regarding his departure. However, he did not remember its entry number and time.
(xxviii) PW41 HC Mukesh Kumar is the police official who had accompanied the IO/Insp. Arjun Singh (PW27) to Karkardooma Court on 30.11.2011 at the time of arrest of accused Abrar @ Bale. He deposed that on 30.11.2011, he was posted as Constable at PS New Usman Pur. On that day, he along with IO/Insp. Arjun Singh went to KKD Court where IO gave an application for interrogation before the Ld. Judge and after taking the permission, IO interrogated the accused and recorded his disclosure statement vide Ex.PW41/A and formally arrested the accused vide arrest memo Ex.PW41/B. IO personally searched the accused vide memo Ex.PW41/C. IO took one day PC of the said accused, namely, accused Abrar @ Bale. He along with IO and accused went to several places including JP Mohalla at New Usman Pur in search of the other accused persons, but they were FIR No. 160/2011 State Vs. Vijay Lamba Etc. Page No. 60 of 83 not found. The identity of accused Abrar @ Bale was not disputed by Ld. Defence counsel.
In his cross-examination, he deposed that no DD entry regarding his departure was recorded in his presence. He denied the suggestion that the signature of accused were obtained on blank papers or that the accused did not make any disclosure statement as he had not committed any crime.
(xxix) PW42 SI Devender is the investigating police official who had assisted SI Ravinder Teotia (PW49) at the time of arrest of accused Bale @ Abrar on 29.11.2011. Thereafter, he has deposed on the same lines on which PW49 has deposed.
In his cross-examination, he deposed that 4-5 public persons, who refused to join the investigation, did not reveal their names and addresses. They reached at the spot at about 4:50 am. Opposite EDM Mall, one public person namely Rashid had joined investigation whereas, other public persons neither joined the investigation nor revealed their names and addresses. He denied the suggestion that injury which they were claiming to have been sustained by the accused while climbing the wall had actually been sustained by him due to the beatings given by them.
(xxx) PW43 ASI Kusum Pal is the police official. He has taken part in the investigation in FIR No. 77/12 PS Crime Branch with regard to the arrest of accused Zahid on 23.13.2012.He has deposed on the same lines on which PW 29 SI N.S. Rana has deposed.
Witness was not cross-examined despite having given the opportunity.
(xxxi) PW44 Insp. Ashish Dahima is the first IO of the FIR No. 160/2011 State Vs. Vijay Lamba Etc. Page No. 61 of 83 present case. He deposed that on 21.04.2011, he was posted as SI at New Usman Pur. On that day after receiving DD No. 37A about gunshot injury, he along with Ct. Dharminder reached near Durga Mandir, Gali No. 15, E-Block, Shastri Park, Delhi where he saw that there was blood on the road. He also found one empty cartridge at the spot. On local inquiry, he came to know that one person, namely, Ram Gopal was injured in a gunshot injury and taken to St. Stephen Hospital. He tried to search eyewitness but no eyewitness met him on the spot. Beat Staff namely HC Pratap and Ct. Parminder also reached there and he deputed them on the spot to preserve the same. He along with Ct. Dharminder reached St. Stephen Hospital and met Deepak, who was son of injured Ram Gopal. He came to know that injured Ram Gopal was declared brought dead. Doctor on duty handed over him one sealed pullanda containing clothes of deceased, one blood sample along with sample seal of St. Stephen Hospital. He prepared seizure memo of sealed pullandas vide Ex.PW44/A. He also prepared seizure memo of personal search of the articles belonging to deceased vide Ex.PW44/B. He also recorded statement of Deepak vide Ex.PW2/A and attested the same. Later on, he prepared rukka on the spot Ex.PW44/C. He wrote an application Ex. PW44/D to preserve the dead body for 24 hours and handed over the same to Ct. Dharminder who further handed over the same to CMO. Thereafter, he along with Deepak came to the spot and prepared Rukka Ex.PW44/C and handed over rukka to Ct. Parminder for registration of FIR who went to PS. After some time, Ct. Parminder came to the spot and handed over original rukka and copy of FIR to Insp. Arjun Singh who had reached the spot. Investigation was marked to Insp.
FIR No. 160/2011 State Vs. Vijay Lamba Etc. Page No. 62 of 83 Arjun Singh. He handed over all the documents and exhibits to Insp. Arjun Singh who prepared rough site plan. Insp. Arjun Singh also seized empty cartridge/ pallets, earth control and blood control from the spot and prepared seizure memo Ex.PW2/B. IO also wrote down FIR Number on seizure memos Ex.PW44/A and Ex.PW44/B. PW44 has identified the case property i.e. one fired bullet pallet Ex. PW30/P1. The crime team visited the spot and Ct. Shyam Lal took the photograph of scene. He identified the photographs of the scene as Ex. PW12/A1 to Ex.PW12/A11.
Witness was cross-examined but nothing material came out in his cross-examination.
(xxxi) PW45 Sh. B.K. Singh is the Additional DCP of North-East District of the relevant time. He has proved the sanction u/s 39 of the Arms Act accorded by him for the prosecution of accused Arjun Kumar Balmiki as Ex.PW45/A. Witness was not cross-examined despite having given the opportunity.
(xxxii) PW49 Retd. SI Ravinder Teotia is the police official posted as SI in Crime Branch. He deposed that on 29.11.2011, at about 4 am, one secret informer came to the PS and informed him that the wanted accused Abrar @ Bale in the present FIR will come near Anand Vihar Bus Stand at about 6 am. He recorded the said information vide DD no. 2 Ex. PW49/A. He produced the informer before the Inspector, who made inquiries from the informer about the information and he directed them to verify the said information. He prepared a raiding team. He also recorded DD no. 3 regarding his departure vide Ex. PW49/A1. They reached near the spot i.e. opposite Tata FIR No. 160/2011 State Vs. Vijay Lamba Etc. Page No. 63 of 83 Showroom, road going towards Apsara border, in a Tavera Jeep. He requested 4-5 public persons to join the investigation but none agreed and they all went away without giving their details. At about 5:15 am, when they reached opposite EDM Mall, he again requested 4-5 public persons to join the investigation but only one person namely Rashid r/o Shaheen Bagh agreed and he joined the raiding party. He prepared a trap at the spot by taking positions. At about 5:40 am, one person was seen coming from the side of Gazipur and going towards Anand Vihar Bus stand. The secret informer pointed out towards the said person and again informed that he was Bale @ Abrar, wanted in the present case FIR. The raiding party tried to apprehend the said person but in order to escape from the spot, the accused made a jump across a wall due to which he sustained some injuries. They also jumped across the wall and accused was apprehended. On interrogation, the accused revealed his name as Abrar @ Bale. He arrested accused Abrar @ Bale vide arrest memo Ex. PW42/A and personally searched the accused vide memo Ex. PW42/B. He recorded disclosure statement of accused vide Ex. PW42/C. He also prepared a conviction slip. He informed PS New Usmanpur about arrest of accused Abrar @ Bale. He returned to his office of Crime branch and again prepared DD no. 7 regarding arrival and arrest of accused vide Ex. PW49/A2. He prepared a kalandra vide Ex. PW49/B (colly). The accused was produced before the court and sent to JC. In the evening time, the IO of the present case came to their office and he handed over the relevant documents i.e. Kalandra and arrest documents of accused Abrar @ Bale to him.
In the intervening night of 23/24-03-2012, the FIR No. 160/2011 State Vs. Vijay Lamba Etc. Page No. 64 of 83 investigation of FIR no. 77/12 u/s 399/402 IPC and 25/54/59 Arms Act, PS Crime Branch was marked to him. The accused Zahid had disclosed in his disclosure statement that he had looted several articles at Shastri Park from a jeweller and had shot him dead. The said articles were shared amongst the accused persons and they left the car on the way itself and escaped. He recorded disclosure statement of accused vide Mark PW49/X. He informed the concerned Police Station about the said disclosure. On 26-03-2011, the concerned police officer came to their office and he handed over the concerned documents i.e. disclosure statement etc. to him, who recorded his statement. The witness correctly identified accused Abrar @ Bale in the court correctly.
In his cross-examination, he deposed that he could not tell the registration no., owner of Tavera jeep today. The driver of Tavera Jeep was from our team but he did not remember his name today. He had disclosed about Tavera jeep in the DD entry of departure. He could not tell from where the said Tavera jeep was hired. He did not know as to who and how much was paid for the said jeep. He did not remember whether he made any inquiries from the place of departure of accused. He did not take ID proof of the witness Rashid. He did not make inquiries from Rashid as to from where he was coming and where he was going. He recorded disclosure statement of accused Abrar @ Bale at the spot. Rashid also left the spot at about 10 am. He got signature of Rashid on three papers. He did not remember the said papers on which he took his signatures. He denied the suggestion that disclosure statement Ex. PW42/C of accused Abrar @ Bale had been recorded by him on his own and no such disclosure was ever made by the accused. He denied the suggestion that he had FIR No. 160/2011 State Vs. Vijay Lamba Etc. Page No. 65 of 83 not even read over the said disclosure statement to accused Abrar @ Bale.
STATEMENT OF ACCUSED u/s 313 Cr.P.C.
5. After completion of prosecution evidence, the statement of accused persons were recorded under Section 313 Cr.P.C. wherein incriminating facts emerging from the evidence were put to the accused persons wherein, they denied all the allegations made against them and stated that they are innocent and falsely implicated in this case. Accused persons did not opt to lead defence evidence.
FINAL ARGUMENTS
6. This court has heard the arguments and perused the record. It is submitted by Sh. C.B. singh, Ld. amicus cuirae on behalf of accused that there are several material contradictions and discrepancies in the testimony of prosecution witnesses. No public witness was joined in the investigation in the present case at the time of effecting recovery of robbed articles as well other incriminating material from the possession of accused persons. There is considerable unexplained delay in sending the chance print, which were lifted from the Maruti 800 Car. Nor there is any explanation as to how the lifted chance prints were preserved. PCR caller was not examined by the prosecution and no cogent explanation in this regard is furnished. The accused persons have already been shown to the eye witnesses prior to the date fixed for TIP. The said fact is admitted by the eye witnesses, namely, PW2 Deepak, PW13 Hitesh Jain and PW17 Atul Kumar. There is discrepancy with regard to the place of incident in the DD No. 37A Ex.PW4/C and the place of incident revealed by the prosecution witnesses. It is, therefore, prayed that benefit of FIR No. 160/2011 State Vs. Vijay Lamba Etc. Page No. 66 of 83 doubt be conferred upon the accused persons , and the accused persons be acquitted.
Ld. Amicus Curiae for the accused persons has relied upon the following judgments in support of his submissions:
(i) K. Venkateshwara Roa Vs. State rep. By Inspector of Police, AP, Crl. A. No. 839 of 2001.
(ii) Sans Pal Singh Vs. State of Delhi, AIR 1999 SC 49.
(iii) Digamber Vaishnav & Anr. Vs. State of Chhattisgarh, Crl. A. No. 428/430 of 2019.
(iv) Judgment passed by the Ld. Trial Court in case FIR No. 151/11 PS Anand Vihar, whereby accused Vijay Lamba has been acquitted from all the alleged offences vide order dated 29.08.2012.
On the other hand, Ld. Addl. PP for the State submits that testimony of prosecution witnesses is sufficient to bring home the guilt of accused persons for the offences punishable u/s 397/412/396/302/411/120B of IPC and u/s 25/27 of Arms Act. PW2 Deepak Verma has correctly identified all the accused persons and he has deposed clearly about the specific role of each of the accused persons. There is no major contradiction or discrepancy in the testimony of prosecution witnesses. FINDING OF THE COURT
7. Before analyzing the evidence led by the Prosecution in the present case, this court deems it proper to refer to some provisions of law and citations of Superior courts, which are found to be applicable to the facts of the present case.
300. Murder--Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or - Secondly--If it is done with the intention of causing such bodily FIR No. 160/2011 State Vs. Vijay Lamba Etc. Page No. 67 of 83 injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or--
Thirdly--If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or-- Fourthly--If the person committing the act knows that it is so imminently dangerous that is must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid.
120B. Punishment of criminal conspiracy--(1) Whoever is a party to a criminal conspiracy to commit an offence punishable with death, [imprisonment for life] or rigorous imprisonment for a term of two years or upwards, shall, where no express provision is made in this Code for the punishment of such a conspiracy, be punished in the same manner as if he had abetted such offence.
(2) Whoever is a party to a criminal conspiracy other than a criminal conspiracy to commit an offence punishable as aforesaid shall be punished with imprisonment of either description for a term not exceeding six months, or with fine or with both.
302. Punishment for murder--Whoever commits murder shall be punished with death, or [imprisonment for life], 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.
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.
411. Dishonestly receiving stolen property--Whoever dishonestly receives or retains any stolen property, knowing or having reason to believe the same to be stolen property, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.
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 [imprisonment for life], or with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine.
25. [(1AAA)] of Arms Act--Whoever has in contravention of a notification issued under section 24A in his possession or in contravention of a notification issued under section 24B carries or otherwise has in his FIR No. 160/2011 State Vs. Vijay Lamba Etc. Page No. 68 of 83 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] shall also be liable to fine.
27. Punishment for using arms, etc. of Arms Act--(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.
8. It is pertinent to mention here that it has been held in case of Sadhu Singh V/s State of Punjab 1997(3) Crime 55 by the Hon'ble Punjab & Haryana High Court that:-
"In a criminal trial, it is for the prosecution to establish its case beyond all reasonable doubts. It is for the prosecution to travel the entire distance from may have to must have. If the prosecution appears to be improbable or lacks credibility the benefit of doubt necessarily has to go to the accused."
09. In Harendera Narain Singh vs. State of Bihar, AIR 1991 S.C. 1842, their Lordships of the Hon'ble Supreme Court had reiterated the well-known principle of the criminal jurisprudence as:
"....... The basic rule of criminal jurisprudence is that if two views are possible on the evidence adduced in a case of circumstantial evidence, one pointing to the guilt of the accused and the other to his innocence, the Court should adopt the latter view favourable to the accused....."
10. In Data Xiva Naique Desai and Another vs. The State, AIR 1967 Goa, Daman and Diu 4, the Hon'ble Supreme Court reiterated the well-known principles of the criminal jurisprudence which are reproduced as under:
"The learned Judge would be advised to observe the following general rules when he is dealing with the serious question of the guilt or innocence of persons charged with crime: (i) The onus of proving everything essential to the establishment of the charge against the accused lies on the prosecution; (ii) The evidence must be such as to exclude to a moral certainty every reasonable doubt of the guilt of the accused; (iii) In matter of doubt it is safer to acquit than to condemn; for it is between several guilty persons should escape than that one innocent FIR No. 160/2011 State Vs. Vijay Lamba Etc. Page No. 69 of 83 person suffer; and (iv) the hypothesis of delinquency should be consistent with all the facts proved."
11. In Swarn Singh Ratan Singh vs. State of Punjab, AIR 1957 SC 637, it was held by the Hon'ble Apex Court that, "in criminal cases mere suspicion, however, strong, cannot take the place of proof. The Court must also take into consideration that an accused is presumed to be innocent till charges against him are proved beyond reasonable doubt. Mere suspicion, however, strong it may be, cannot take the place of legal proof."
12. Moreover, in Kali Ram vs. State of Himachal Pradesh, AIR 1973 SC 2773, the Apex Court had observed as follows:-
"Another golden thread which runs through the web of the administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. This principle has a special relevance in cases wherein the guilt of the accused is sought to be established by circumstantial evidence. Rule has accordingly been laid down that unless the evidence adduced in the case is consistent only with the hypothesis of the guilt of the accused and is inconsistent with that of his innocence, the court should refrain from recording a finding of guilt of the accused. It is also an accepted rule that in case the court entertains reasonable doubt regarding the guilt of the accused, the accused must have the benefit of that doubt. Of course, the doubt regarding the guilt of the accused should be reasonable: it is not the doubt of a mind which is either so vacillating that it is incapable of reaching a firm conclusion or so timid that it is hesitant and afraid to take things to their natural consequences. The rule regarding the benefit of doubt also does not warrant acquittal of the accused by resort to surmises, conjectures or fanciful considerations. Although the benefit of every reasonable doubt should be given to the accused, the courts should not at the same time reject evidence which is ex-facie trustworthy on grounds which are fanciful or in the nature of conjectures.
The guilt of the accused has to be adjudged not by the fact that a vast number of people believe him to be guilty but whether his guilt has been established by the evidence brought on record. Indeed, the courts have hardly any other yardstick or material to adjudge the guilt of the person arraigned as accused. Reference is sometimes made to the clash of public interest and that of the individual accused. The conflict in this respect, in our opinion, is more apparent than real.
It is no doubt true that wrongful acquittals are undesirable and FIR No. 160/2011 State Vs. Vijay Lamba Etc. Page No. 70 of 83 shake the confidence of the people in the judicial system, much worse, however, is the wrongful conviction of an innocent person. The consequences of the conviction of an innocent person are far more serious and its reverberations cannot but be felt in a civilized society. All this highlights the importance of ensuring as far as possible, that there should be no wrongful conviction of an innocent person. Some risk of the conviction of the innocent, of course, is always there in any system of the administration of criminal justice. Such a risk can be minimized but not ruled out altogether."
13. Perusal of record reveals that none of the accused was apprehended at the spot on the date of incident i.e. on the intervening night of 24/25-04-2011. The first accused was identified on the basis of chance print matching report Ex. PW22/A on 06.05.2011 as Vijay Lamba, who was arrested after more than one month from the date of incident i.e. on 02.06.2011. It is observed that the prosecution has got examined 3 public/eyewitnesses in the present case as PW2, PW14 and PW17. PW2 Deepak Verma is the complainant in the present case, and he also happens to be son of the deceased. In his examination in chief dated 20-10-2012, he has correctly identified accused Vijay Lamba as the first assailant who fired gun shot on the person of his father. He has identified accused Arun Kumar Balmiki as the person who was brandishing the revolver while running away from the spot along with other co- accused persons after committing the crime. Accused Wahazuddin as the person who was waiving the country made pistol in the air while running from the spot. Accused Zahid as the person who had snatched the bag from his deceased father, and also fired a shot on the person of his father. However, in his cross-examination dated 12-03-2015, he stated that on 21-04- 2011, he was at his home. On that day when he was coming FIR No. 160/2011 State Vs. Vijay Lamba Etc. Page No. 71 of 83 downstairs, he heard a noise and on hearing the same, he came out from the house and saw the incident. Thus, it is apparent that PW2 Deepak Verma had not himself seen the incident of gun shot firing upon his father by the assailants as claimed by him in the FIR as well in his examination-in-chief.
14. In the cross-examination dated 17-08-2017 of PW2 Deepak Verma, he has taken a completely different stance. At the outset, he deposed that whatever he has deposed before the court during his examination in chief on 23-11-2021, 19-01-2012, 30- 10-2012, 10-12-2012, 28-07-2014, was deposed as told to him by the police during the process of this case as and when he visited the police station and the accused persons were arrested. The police officials showed him the accused persons in the police station as and when they were arrested and one person was shown to him in front of court no. 75. In his re-examination dated 22.09.2017 by Ld. Addl. PP, he deposed that the version which he had stated during his cross-examination is correct one and the version which he had stated during his examination-in- chief is false one. Despite having been cautioned by the court that in case if it is found that he has deposed falsely during his testimony, appropriate action/proceedings therefor may be initiated against him, he maintained his stand and sated that his deposition in his examination- in-chief was as per the version stated to him by the police. Thus, from the above-stated extract of deposition of PW2 Deepak Verma, it is apparent that the accused persons namely Vijay Lamba, Arun Kumar Balmiki, Wahazuddin were already shown to PW2 at or before the time of their arrest and before moving application for conducting their test identification parade ,and the specific role of accused persons FIR No. 160/2011 State Vs. Vijay Lamba Etc. Page No. 72 of 83 testified by him was at the behest of police.
15. Another eye-witness got examined by the Prosecution is PW14 Ashok. In his examination in chief dated 22-11-2014, he has failed to identify any of the accused persons. However, he has identified his signatures on TIP proceedings Ex. PW14/E. In his cross-examination by Ld. Defence counsel, he had stated that he had identified accused Wahazuddin at the instance of police as the photographs were shown to him and he was directed to identify him in jail in TIP proceedings by the police officials. Thus, it is apparent from the testimony of PW14 Ashok that photographs of accused Wahazuddin was already shown to the witness prior to the date fixed for conducting TIP.
16. Similarly, PW17 Atul Kumar had also failed to identify the accused persons in his examination in chief dated 17-01-2015. He has also resiled from his statement made before the police during investigation that he had noted down the number of Maruti car as 6898, which car was recovered lying abandoned on 25-04-2011. In his cross-examination, he has admitted the factum of having identified the accused Wahazuddin @ Wahazu in the judicial TIP proceedings dated 20-08-2011. However, he added that he had identified accused Wahazuddin as he was shown to him in the police station by the police prior to his identification in Tihar jail. Thus, TIP proceedings Ex. PW14/E of accused Wahazuddin is of no help to the prosecution. In the case of Shaikh Umar Ahmed Shaikh and Anr. Vs. State of Maharashtra, AIR 1998 Supreme Court 1922, it was held that:
"But, the question arises; what value could be attached to the evidence of identity of accused by the witnesses in the court when the accused were possibly shown to the witnesses before the identification parade in the police station. The Designated Court has already recorded a finding that there was strong FIR No. 160/2011 State Vs. Vijay Lamba Etc. Page No. 73 of 83 possibility that the suspects were shown to the witnesses. Under such circumstances, when the accused were already shown to the witnesses, their identification in the Court by the witnesses was meaningless. The statement of witnesses in the Court identifying the accused in the Court lost all its value and could not be made basis for recording conviction against the accused."
17. Close scrutiny of prosecution evidence also indicates that PW2 Deepak Verma, who has correctly identified all the accused persons in his examination in chief dated 20-10-2012, was not even present in the gali near his house at the time of incident, which he has claimed in his deposition dated 23-11-2011. PW14 Ashok Verma and PW17 Atul Kumar, both claimed that they have rushed towards the deceased immediately after hearing the noise of gunshot. In their respective examination in chief in the court, both did not reveal the name of PW2 Deepak Verma as the person who rushed towards the deceased Ram Gopal. Moreover, PW2 Deepak Verma himself in his cross-examination dated 12- 03-2015, stated that he was inside his house and in process of coming downstairs when he heard the noise. As per the PCR form Ex. PW5/A, the incident was reported to have taken place at E block, Gali No. 15 whereas as per the version of PW2, he had seen the incident of gunshot from his house situated in F Block, Gali No. 8 which appears to be located quite far from E block, gali No. 15 on perusal of site plan Ex. PW1/A. On the aspect of incident of alleged robbery as well, this court is of the opinion that there are major contradictions in the version of PW2. In his initial statement Ex.PW2/A , he did not state anything with regard to missing of any bag belonging to his deceased father. It was only at the time of recording of his testimony in court, PW2 had stated that when his father fell down, the accused took away FIR No. 160/2011 State Vs. Vijay Lamba Etc. Page No. 74 of 83 his hand bag with him and two persons were hurling the pistol in his hand and were threatening by abusing "hat jao verna goli mar dunga". Later on, in his cross-examination dtd. 12.03.2015, he stated that when he reached at the spot, he had seen 4-5 persons running from there. At the same time, he stated that one black color bag was lying near his father when he reached there. It is not the case of prosecution that accused persons came back at the spot again , and then taken away the bag belonging to the deceased. Thus, in the opinion of this court, the testimony of sole eye-witness namely PW2 Deepak Verma is full of discrepancies and contradictions. This witness in the opinion of this court cannot be considered to be a 'sterling witness', which the prosecution is supposed to present.
18. At this stage, it is appropriate to refer the case of Rai Sandeep Vs. State of NCT of Delhi, Crl. Appeal no. 2486/09 decided on 07-08-2012, wherein it was held by Hon'ble Supreme Court of India that:
"In our considered opinion, the 'sterling witness' should be of a very high quality and caliber whose version should, therefore, be unassailable. The Court considering the version of such witness should be in a position to accept it for its face value without any hesitation. To test the quality of such a witness, the status of the witness would be immaterial and what would be relevant is the truthfulness of the statement made by such a witness. What would be more relevant would be the consistency of the statement right from the starting point till the end, namely, at the time when the witness makes the initial statement and ultimately before the Court. It should be natural and consistent with the case of the prosecution qua the accused. There should not be any prevarication in the version of such a witness. The witness should be in a position to withstand the cross- examination of any length and strenuous it may be and under no circumstance should give room for any doubt as to the factum of the occurrence, the persons involved, as well as, the sequence of it. Such a version should have co-relation with each and everyone of other supporting material such as the recoveries made, the weapons used, the manner of offence committed, the scientific evidence and the expert opinion. The said version FIR No. 160/2011 State Vs. Vijay Lamba Etc. Page No. 75 of 83 should consistently match with the version of every other witness. In can even be stated that it should be akin to the test applied in the case of circumstantial evidence where there should not be any missing link in the chain of circumstances to hold the accused guilty of the offence alleged against him. Only if the version of such a witness qualifies the above test as well as all other similar such test to be applied, it can be held that such a witness can be called as a 'sterling witness' whose version can be accepted by the Court without any corroboration and based on which the guilty can be punished. To be more precise, the version of the said witness on the core spectrum of the crime should remain intact while all other attendant materials, namely, oral, documentary and material objects should match the said version in material particulars in order to enable the Court trying the offence to rely on the core version to sieve the other supporting materials for holding the offender guilty of the charge alleged."
19. As per chapter 22 rule 49 of the Punjab Police Rules it is necessary to record DD Entry of arrival and departure of the police official. Chapter 22 Rule 49 of Punjab Police Rules, 1934, is reproduced as under:-
''22.49 Matters to be entered in Register No. II The following matters shall, amongst others, be entered :-
(c) The hour of arrival and departure on duty at or from a police station of all enrolled police officers of whatever rank, whether posted at the police station or elsewhere, with a statement of the nature of their duty. This entry shall be made immediately on arrival or prior to the departure of the officer concerned and shall be attested by the latter personally by signature or seal.
Note :- The term Police Station will include all places such as Police Lines and Police Posts where Register No. II is maintained.
20. In the present case, the above said provision appears to have not been complied with by prosecution. The relevant entry regarding receipt of secret information, movement of police officials at various places visited by them while effecting recovery of incriminating as well as robbed articles during the investigation of the present case has not been proved on record and even the DD Writer was not examined and no explanation is FIR No. 160/2011 State Vs. Vijay Lamba Etc. Page No. 76 of 83 given as to why the said DD Writer is not made the witness in the present case. At this juncture, it would be relevant to refer to a case law reported as Rattan Lal V/s State, 1987 (2) Crimes 29 the Hon'ble Delhi High Court "wherein it has been observed that if the investigating agency deliberately ignores to comply with the provisions of the Act the courts will have to approach their action with reservations. The matter has to be viewed with suspicion if the provisions of law are not strictly complied with and the least that can be said is that it is so done with an oblique motive. This failure to bring on record, the DD entries creates a reasonable doubt in the prosecution version and attributes oblique motive on the part of the prosecution."
In the present case, the above said provision appears to have not been complied with by prosecution.
21. Perusal of cross-examination of investigating police officials namely PW19 HC Waseeq Ahmed, PW24 HC Ishwar, PW25 HC Pramender, PW26 Ct. Devender Kumar, PW27 ACP Arjun Singh, PW29 Retd. SI N. S. Rana, PW32 ASI Ravinder Kumar, PW33 Retd. ASI Vikram Dutt, PW35 Retd. Inspector Ashok Kumar, PW37 Ct. Dharmender Kaushik, PW38 ASI Tejvir Singh, PW41 HC Mukesh, and PW42 SI Devender also indicates that public witnesses were also available at the time of arrest/ effecting the recovery of incriminating articles from the possession of accused persons. There are inherent contradictions in the version of above-stated police officials with regard to the no. of public persons requested by them to join in the investigation, their observation inside the house of accused persons,place of recovery etc. The relevant extract of their respective cross-examination indicative of discrepancies has already been reproduced hereinabove while dealing with FIR No. 160/2011 State Vs. Vijay Lamba Etc. Page No. 77 of 83 testimony of police officials.
22. As per the cross-examination dated 11-05-2023 of PW38 of ASI Tejvir Singh, it is gathered that sister-in-law of accused Vijay was present in the house during his PC remand. However, the signatures of sister in law of accused are not there in the seizure memo for recovered robbed articles vide seizure memo Ex. PW25/D. No cogent explanation is furnished as to why no independent public person was joined in the investigation despite their availability. In a case law reported as Anoop Joshi V/s State, 1992 (2) C.C. Cases 314 (HC), Hon'ble High Court of Delhi has observed as under:
''18. It is repeatedly laid down by this Court that in such cases it should be shown by the police that sincere efforts have been made to join independent witnesses. In the present case, it is evident that no such sincere efforts have been made, particularly when we find that shops were open and one or two shop-keepers could have been persuaded to join the raiding party to witness the recovery being made from the appellant. In case any of the shopkeepers had declined to join the raiding party, the police could have later on taken legal action against such shopkeepers because they could not have escaped the rigours of law while declining to perform their legal duty to assist the police in investigation as a citizen, which is an offence under the IPC''.
23. In Roop Chand V/s The State of Haryana,1999 (1) C.L.R 69, the Hon'ble Punjab & Haryana High Court held as under:-
"It is well settled principle of the law that the Investigating Agency should join independent witnesses at the time of recovery of contraband articles, if they are available and their failure to do so in such a situation casts a shadow of doubt on the prosecution case. In the present case also admittedly the independent witnesses were available at the time of recovery but they refused to associate themselves in the investigation. This explanation does not inspire confidence because the police officials who are the only witnesses examined in the case have not given the names and addresses of the persons contacted to join. It is a very common excuse that the witnesses from the public refused to join the investigation. A police officer conducting investigation of a crime is entitled to ask anybody to join the investigation and on refusal by a person from the public FIR No. 160/2011 State Vs. Vijay Lamba Etc. Page No. 78 of 83 the Investigating Officer can take action against such a person under the law. Had it been a fact that he witnesses from the public had refused to to join the investigation, the Investigating Officer must have proceeded against them under the relevant provisions of law. The failure to do so by the police officer is suggestive of the fact that the explanation for non-joining the witnesses from the public is an after thought and is not worthy of credence. All these facts taken together make the prosecution case highly doubtful''.
24. It has been held by Hon'ble Supreme Court of India in case of Sans Pal Singh Vs. State of Delhi, AIR 1999 SC 49 that, "It would have been a different matter altogether had there been no public witness available or none was willing to associate. Here, as said before, public witnesses were available but no explanation on these lines is forthcoming. Thus, we got to the view that it would be unsafe to maintain the conviction of the appellant for the offences charged. We, therefore, order his acquittal".
25. It is well settled that mere recovery of stolen articles is not sufficient to record conviction for offence of murder. The Hon'ble Delhi High Court in the case of T. Murugan vs State on 26 May, 2011 in CRIMINAL APPEAL NOS.16/1998, 107/1998 & 187/1998 held that, "It is also an established propo- sition of law that mere recovery of stolen or other articles, al- leged to be linked with the incident, without any evidence of their link with the accused, is not sufficient for the court to con- vict them."
26. In Sanwat Khan v. State of Rajasthan, AIR 1956 SC 54, the Hon'ble Supreme Court of India held that:
"Where, however, the only evidence against an accused person is the recovery of stolen property and although the circum- stances may indicate that the theft and the murder must have been committed at the same time, it is not safe to draw the infer- ence that the person in possession of the stolen property was the murderer. Suspicion cannot take the place of proof."
FIR No. 160/2011 State Vs. Vijay Lamba Etc. Page No. 79 of 83
27. It is further pertinent to note that chance prints of accused Vijay Lamba have been lifted by the investigating police officials from one Maruti Car bearing no. DL4CC-6898 on 25-04-2011, when the said car was found to be lying abandoned by HC Abihishek while performing patrolling duty. The said car was claimed to be stolen and in this connection an FIR no. 147/11, PS Bhajanpura was registered. The accused Vijay Lamba was also arrested in connection with the said FIR. During the course of arguments, Ld. Amicus Curiae for the accused has placed on record order/ judgment dated 16-05-2012 whereby the accused Vijay Lamba has already been acquitted. The country made pistol, which as per the prosecution case, has been used by the accused Vijay Lamba in the present case, has been recovered from the possession of accused Vijay Lamba in case FIR no. 151/11, PS Crime Branch. As per the certified copy of judgment dated 29-08-2012 of Ld. ACMM, East, KKD, Delhi, the accused Vijay Lamba has already been acquitted. Thus, principle of issue estoppal is squarely applicable in the present case. In the case of Gurcharan Singh Vs. State of Punjab, AIR 1963 SC 340, Gurcharan Singh (besides others) stood his trial for murder in one case and under the Arms Act in the other for being in unlawful possession of the gun belonging to the victim Arjan Singh. But the two cases were tried by the same sessions judge, who, delivering both the judgments on the same day, acquitted the accused in the Arms Act case disbelieving evidence of recovery of the weapon; but convicted him in the murder case believing the same evidence as true. In the appeal before the Hon'ble Supreme Court it was argued on behalf of the convict that the High Court ought to have taken into consideration the FIR No. 160/2011 State Vs. Vijay Lamba Etc. Page No. 80 of 83 findings of the sessions court in the Arms Act case that the convict was not in possession of the gun, and the finding of the sessions court in the murder case regarding recovery of the gun from him should not have been accepted. The Hon'ble Supreme Court accepted in principle application of the principle issue estoppal by observing:
"There is no doubt that if the order of acquittal under S. 19(f) had been pronounced before the judgment in the principal case was delivered, then in the latter case the prosecution will not be entitled to contend that Gurcharan Singh was in illegal possession of the fire arm. This position cannot be and is not disputed."
28. Moreover, in the present case, the ballistic expert report Ex. PW47/A is inconclusive as PW47 Dr. Puneet Puri has stated that no opinion can be given as to whether the bullets Ex. EB1 and Ex.EB2 have been discharged through country made pistols Ex. F1(in two cases). Thus, the prosecution has failed to connect the recovered fired bullets from the spot with the recovered coun- try made pistol from the possession of accused.
29. Another incriminating evidence against accused Vijay Lamba, being relied upon by the prosecution, is the scientific evi- dence i.e. report Ex. PW22/A whereby the chance prints lifted from Maruti car bearing no. DL4CC-6898 were found to be iden- tical with the database record of accused Vijay Lamba s/o Ram Lal. To prove the said report, the prosecution has got examined PW22 Vishwajeet Roy and PW23 Ravinder Kumar. In his cross- examination dated 08-08-2013, Ld. Defence counsel has suc- ceeded in eliciting the fact that PW22 has not been able to ex- plain the reason on the basis of which he had concluded that the lifted chance prints were found matching with the database record of accused Vijay Lamba as the rough notes on the basis of FIR No. 160/2011 State Vs. Vijay Lamba Etc. Page No. 81 of 83 which the report was prepared were not annexed with the report.
30. Further, it is well settled that chance-prints matching report is just an expert-opinion which must never be acted upon unless substantially corroborated S.Gopal Reddy v. State of A.P. AIR 1996 SC2184 (Para27), it was held that it is not safe to rely upon this type of evidence without seeking independent and reliable corroboration.
31. In Arshad v. State of A.P. 1996 CrLJ 2893 (para34) (AP), it is only an inference drawn from the data and it would not get precedence over the direct eye-witness testimony unless the inconsistency between the two is so great as to falsify the oral ev- idence.
32. Further, in the case of Haryana Seeds Development Cor- poration Ltd. v. Sadhu, AIR 2005 SC 2023, it was held that the opinion of an expert witness is not considered to be conclusive in nature because there is the danger of error or deliberate false- hood; In Mohd. Zahid v. State of Tamil Nadu, AIR 1999 SC 2416, it was held that, "human judgment is fallible and human knowledge is limited and imperfect". In Gulzar Ali v. State of Himachal Pradesh, (1998) 2 SCC 192, it wads held that, "an expert witness, however impartial he may wish to be, is likely to be unconsciously prejudiced in favour of the side which calls him"
33. In order to prove offence of criminal conspiracy, the prose- cution is relying only upon Customer application form details, subscriber details and Call detail records pertaining to the mobile phone sim cards of accused persons. In this regard, it is pertinent to note that main IO PW27 Arjun singh has neither in the charge- sheet , nor in his deposition has carried out analysis of call-detail FIR No. 160/2011 State Vs. Vijay Lamba Etc. Page No. 82 of 83 records. Half-baked investigation has been conducted on this as- pect. Mobile handsets have not been seized during investigation. It is well settled that CDR data can only be used as supporting, or corroborative piece of evidence and conviction cannot be made solely on basis of the CDR data.
DECISION OF THE COURT
34. It is well settled that it is the duty of the prosecution to prove the guilt of the accused persons beyond reasonable doubt. Therefore, on the basis of the material available on the record, the case of the prosecution becomes doubtful and the benefit of doubt certainly goes in favor of the accused persons. The prosecution has failed to prove its case beyond all reasonable doubts against the accused persons. Accordingly, taking into consideration the facts and circumstances of the case, all accused persons are hereby acquitted of the charges punishable u/s 397/412/396/302/411/120B of IPC and u/s 25/27 of Arms Act. File be consigned to record room after compliance of section 437A of Cr.P.C with liberty to the prosecution to get the case reopened as and when accused Mohd. Nazim @ Nadeem and Zahid are apprehended / arrested and produced before the court.
ANNOUNCED IN THE OPEN COURT
On 19.09.2023 PANKAJ Digitally signed by PANKAJ
ARORA
ARORA Date: 2023.09.22 04:45:47
+0530
(PANKAJ ARORA)
ADDL. SESSIONS JUDGE-04: NORTH-EAST/
KARKARDOOMA/19.09.2023
FIR No. 160/2011 State Vs. Vijay Lamba Etc. Page No. 83 of 83