Delhi District Court
State vs . (1). Jasbir on 4 November, 2015
FIR No. 206/12; U/s 395/397 IPC & 25/27 Arms Act; PS Shahbad Dairy D.O.D. 04.11.2015 IN THE COURT OF SHRI VIDYA PRAKASH: ADDL. SESSIONS JUDGE04 (NORTH): ROHINI COURTS: DELHI Session Case No. 155/1/14 Unique Case ID No. 02404R0263352012 State Vs. (1). Jasbir S/o Sh. Diwakar Singh R/o Village Agonapur, PS Ali Ganj, District Etah, UP. (2) Mukesh S/o Sh. Virender R/o Village Rampur, PS Garkha, District Chapra, Bihar. (3) Deepu S/o Sh. Diwakar Singh R/o Agonapur, PS Ali Ganj, District Etah, U.P. (4) Devinder @ Shagun S/o Sh. Garang Singh R/o Village Rudayan, PS Kampil, Teh Kayamgunj, District Farukhabad, U.P. (5) Manoj S/o Sh. Mahesh Bhagat R/o Village Shakri Badampur, PS Manigachi, District Darbhanga, Bihar. State Vs Jasbir etc. ("Acquitted") Page 1 of 26 FIR No. 206/12; U/s 395/397 IPC & 25/27 Arms Act; PS Shahbad Dairy D.O.D. 04.11.2015 FIR No. : 206/12 Police Station : Shahbad Dairy Under Sections : 395/397 IPC & 25/27 Arms Act Date of committal to Sessions Court: 12.03.2015 Date on which judgment was reserved: 04.11.2015 Date on which Judgment pronounced: 04.11.2015 JUDGMENT
BRIEF FACTS OF THE CASE
1. The case of the prosecution as mentioned in the chargesheet is as under:
(i). That on 03.07.2012, intimation was recorded vide DD no. 5B at PS S.B Dairy and same was entrusted to SI Harinder for necessary action;
(ii). That on receipt of DD no. 5B, SI Harinder (PWxxS) and Ct.
Bhupinder (PW7) rushed to the place of information i.e. construction site of M/s. IVRCL Ltd. Sector3, Bawana, Delhi. Large gathering of public persons was present over there. On enquiry, it was revealed that one person had fired bullet at security guard Chandan Jha (PW3) at the said construction site. The injured person as also the assailant had been removed to M.B. Hospital. Accordingly, SI Harinder left Ct. Bhupinder at the spot and rushed to said hospital, where he collected MLCs of injured State Vs Jasbir etc. ("Acquitted") Page 2 of 26 FIR No. 206/12; U/s 395/397 IPC & 25/27 Arms Act; PS Shahbad Dairy D.O.D. 04.11.2015 Chandan Jha and that of accused Jasbir who were found admitted over there;
(iii). It is further case of prosecution that ASI Karan Singh (PW5) met SI Harinder in the aforesaid hospital and produced one country made pistol allegedly recovered from the possession of accused Jasbir. On checking, said pistol was found loaded with one live cartridge. After carrying out relevant proceedings with regard to said arm and ammunition, sealed pullanda thereof was prepared and it was seized by SI Harinder;
(iv). It is further case of prosecution that SI Harinder recorded statement (Ex.PW3/A) of complainant/injured Chandan Jha, wherein he claimed that during the intervening night of 02/03072012 at about 3.00 am, when he was taking round while doing his duty as Security Guard at the construction site of the aforesaid company, he saw that 56 persons were removing iron saria from the construction site. When he objected, all the said persons threatened him to keep quite and to go away. However, when he refused to budge before them and said persons tried to remove iron saria and he tried to stop them from doing so, one of them fired bullet at him, due to which he sustained injuries. After hearing noise, several public persons collected over there and on seeing them, the offenders started running away. In the meantime, one of the offenders also took out one pistol type weapon and State Vs Jasbir etc. ("Acquitted") Page 3 of 26 FIR No. 206/12; U/s 395/397 IPC & 25/27 Arms Act; PS Shahbad Dairy D.O.D. 04.11.2015 threatened public persons not to move towards them. However, he alongwith other co workers managed to apprehend one of those offenders i.e. accused Jasbir. The said offender was beaten up by the public persons. He snatched the weapon from the possession of said assailant and handed over the same to another security guard namely Vikas Jha (PW4).
(v). On the basis of said statement, SI Harinder got the FIR in question registered for the offences punishable U/s 395/397 IPC and 25/27 Arms Act and investigation was entrusted to SI Harinder;
(vi). It is further case of prosecution that SI Harinder prepared rough site plan at the instance of eye witness Vikas and also recorded statements of relevant witnesses. He also arrested accused Jasbir, who confessed his guilt and also disclosed the names of other offenders;
(vii). It is further case of prosecution that during police custody remand, accused Jasbir led to the arrest of co accused persons namely Deepu S/o Diwakar, Mukesh S/o Sh. Virender and Veerpal S/o Sh. Daya Ram. All the said three co accused persons were also identified by complainant Chandan Jha to be involved in the commission of offences committed against him. Accordingly, all the said three accused persons were also arrested in this case;
(viii). It is further case of prosecution that accused persons State Vs Jasbir etc. ("Acquitted") Page 4 of 26 FIR No. 206/12; U/s 395/397 IPC & 25/27 Arms Act; PS Shahbad Dairy D.O.D. 04.11.2015 namely Deepu, Mukesh and Veerpal led the police officials to rented house no. 10A/1760, Rajeev Ratan Awas, Sector3, Bawana, Delhi belonging to accused Veerpal and Mukesh and got recovered one gun and five cartridges and confessed to have also used said gun during commission of offences involved in this case. After carrying out relevant proceedings with regard to said arm and ammunition, SI Harinder prepared sealed pullanda thereof and seized them in this case.
(ix). It is further case of prosecution that on 07.07.2012, one Diwakar S/o Sh. Guru Dayal visited PS S.B. Dairy and produced gun license and photocopy of gun license and permission in respect of the afore mentioned gun before IO SI Harinder, who seized the same;
(x). It is further case of prosecution that on 22.08.2012, relevant exhibits were got deposited in FSL, Rohini. Co accused persons namely Devender and Manoj, who were previously absconding in this case, were also apprehended on the basis of secret information on 31.08.2012 and they also confessed their involvement in this case.
(xi). It is further case of prosecution that accused Manoj and Devender refused to participate in their judicial TIP during investigation. Accused Veerpal was found to be juvenile during the course of investigation and accordingly, separate report was State Vs Jasbir etc. ("Acquitted") Page 5 of 26 FIR No. 206/12; U/s 395/397 IPC & 25/27 Arms Act; PS Shahbad Dairy D.O.D. 04.11.2015 filed against him before concerned JJB;
(xii). It is further case of prosecution that IO SI Harinder collected results on MLCs of injured/complainant Chandan Jha. After completion of investigation, chargesheet was filed before the Court of Ld. M.M.
(xiii). It is relevant to note that further investigation was carried out in this case. During further investigation, Ballistic Result was collected from FSL Authority and thereafter, requisite sanctions U/s 39 Arms Act to prosecute accused Jasbir and Deepu for offence punishable U/s 25 Arms Act were also collected from the Competent Authority. Thereafter, the supplementary chargesheet was filed before the Court.
2. After compliance of section 207 Cr.P.C., the case was committed to the Court of Sessions and was assigned to Ld. Predecessor of this Court.
CHARGES FRAMED AGAINST THE ACCUSED PERSONS
3. After hearing arguments on the point of charge, Ld. Predecessor of this Court was pleased to frame charge for the offence punishable U/s 395 IPC against all five accused persons namely Jasbir, Mukesh, Deepu, Devinder @ Shagun and Manoj and separate charge for the offences punishable U/s 398 IPC and U/s 25/27 Arms Act against accused Jasbir and Jeepu vide order dated 11.12.2013, to which they pleaded not State Vs Jasbir etc. ("Acquitted") Page 6 of 26 FIR No. 206/12; U/s 395/397 IPC & 25/27 Arms Act; PS Shahbad Dairy D.O.D. 04.11.2015 guilty and claimed trial.
4. In support of its case, prosecution examined fifteen witnesses namely PW1 Sh. Diwakar, PW2 HC Umesh Kumar, PW3 Sh. Chandan Jha, PW4 Sh. Vikas Jha, PW5 ASI Karan Singh, PW6 HC Murari Lal (again examined as PW13), PW7 Ct. Bhupender, PW8 Ct. Ravinder Kumar, PW9 Ct. Subha Ram, PW10 Dr. S.N. Sidharth, PW11 Sh. Chanderjit Singh, PW12 HC Arif Khan, PW14 Ct. Nand Kishore, PW15 SI Harinder and PW16 Sh. M.A. Rizvi, the then Additional DCP, Outer District during trial.
5. It may also be mentioned here that Ld. Additional PP dropped PW Ct. Karamvir from the list of witnesses on 02.03.2015 on the ground that he was the witness of repetitive facts in respect of which other witness namely PW8 Ct. Ravinder had already been examined in this case.
6. Thereafter, statements U/s 313 Cr.P.C. of all five accused persons namely Jasbir, Mukesh, Deepu, Devinder @ Shagun and Manoj were recorded, during which all the incriminating evidence which came on record, were put to them which they denied. All the accused persons claimed that they are innocent and have been falsely implicated in this case. However, all the accused persons opted not to lead any evidence towards their defence.
7. I have heard Sh. Pankaj Bhatia, Ld. Additional PP on behalf of State, Ld. counsel Sh. Gajraj Singh, Adv. for accused Jasbir and Deepu, ld. counsel Sh. Shankar Dutt, Adv. for accused Manoj and ld. counsel Ms. Dhaneshwari, Adv. for accused Manoj and Devender. I have also gone State Vs Jasbir etc. ("Acquitted") Page 7 of 26 FIR No. 206/12; U/s 395/397 IPC & 25/27 Arms Act; PS Shahbad Dairy D.O.D. 04.11.2015 through the material available on record.
8. Before discussing the rival submissions made on behalf of both the sides, it would be appropriate to discuss, in brief, the testimonies of prosecution witnesses which have come on record. The said testimonies are detailed as under: PUBLIC WITNESSES:
9. PW1 Sh. Diwakar: This witness is the licensed holder in respect of seized gun i.e. SBBL Gun No. 17595. He is also father of accused Deepu facing trial in this case.
The aforesaid witness produced original license in respect of aforesaid gun copy of which was exhibited as Ex.PW1/A. He deposed that he was working as security guard with Surpie Group engaged in providing services of security guards to different companies. He further deposed that he had kept his said gun in the office of Surpie Group situated at Rajeev Colony with one Nikhil who was also working as Security Officer in the said company as he was going to his native place. He was pressurized by 23 police officials to hand over his gun to them. Accordingly, he handed over the said gun to the police after taking it from the said office. He also exhibited seizure memo of copy of gun license and permission as Ex.PW1/B. He also identified said gun as Ex.P1 during trial.
The aforesaid witness was cross examined at length by Ld. Additional PP as he was not supporting the case of prosecution on material points. However, he denied all the relevant suggestions put to him on the State Vs Jasbir etc. ("Acquitted") Page 8 of 26 FIR No. 206/12; U/s 395/397 IPC & 25/27 Arms Act; PS Shahbad Dairy D.O.D. 04.11.2015 lines of prosecution story and reiterated his previous statement that he was pressurized by police officials to hand over the aforesaid gun to them.
This witness has not been cross examined by accused persons despite grant of opportunity.
10. PW3 Sh. Chandan Jha: He is the complainant/victim in this case. He supported the case of prosecution to the extent that incident in question had taken place during the intervening night of 02/03.07.2012 at construction site of M/s. IVRCL Ltd. Sector3, Bawana, Delhi, when one of the offenders had caused gun shot injury on his right arm. However, he did not support the prosecution story on other material aspects including on the aspect of identity of accused herein to be the assailants.
He deposed that on receipt of gun shot injury on his right arm, he lost his consciousness and when he regained his consciousness, he found himself admitted in the hospital. He claimed to have told the police official who met him in the hospital, that he could not identify the offenders but police official had obtained his signatures on one document without recording his statement. Although, he identified his signature appearing on his police statement Ex.PW3/A but testified that he did not make any such statement to the IO.
The aforesaid witness was cross examined by Ld. Additional PP as he was not supporting the case of prosecution. However, he denied all the relevant suggestions put to him on the lines of prosecution story. His attention was also drawn towards accused Jasbir during trial, but he testified State Vs Jasbir etc. ("Acquitted") Page 9 of 26 FIR No. 206/12; U/s 395/397 IPC & 25/27 Arms Act; PS Shahbad Dairy D.O.D. 04.11.2015 that said accused was not apprehended by him or in his presence. He also deposed that no weapon was recovered from the possession of accused Jasbir by him and also that he had not handed over any katta/pistol to another security guard namely Vikas Kumar. He also denied to have identified accused Jasbir in the hospital before IO. He also denied that accused Jasbir was arrested on his identification or even in his presence. He also denied to have made supplementary statements dated 05.07.2012 and 11.09.2012 U/s 161 Cr.P.C. Mark P3/1 and Mark P3/2 before the police. He also failed to identify accused Deepu and Mukesh despite the fact that both the said accused were shown to him during trial. He denied that he had identified both the said accused to be assailants involved in the offences of this case, during investigation. Not only this, he also denied to have identified accused Devender and Manoj when they were being produced in Rohini Court on 11.09.2012. This witness has not been cross examined by the accused persons despite grant of opportunity.
11. PW4 Sh. Vikas Jha: According to the case of prosecution, he was the person, who had reached at the spot immediately after the occurrence and country made pistol was recovered from the possession of accused Jasbir by complainant in his presence. This witness supported the case of prosecution only to the extent that on the day of incident, he had rushed to the place of incident on hearing the noise and noticed that security guard Chandan Jha (PW3) was lying in injured condition. However, he categorically denied that any pistol type weapon was handed State Vs Jasbir etc. ("Acquitted") Page 10 of 26 FIR No. 206/12; U/s 395/397 IPC & 25/27 Arms Act; PS Shahbad Dairy D.O.D. 04.11.2015 over to him by complainant Chandan Jha or that he was told by Chandan Jha that said weapon was recovered from accused Jasbir or that said accused was apprehended at the spot. He also denied to have handed over any such weapon to the police official who had reached the scene of crime or that any site plan was prepared by police at his instance.
He deposed that he was not in a position to identify any such weapon/pistol even if shown to him as he had no occasion to see the same. His attention was also drawn towards accused Jasbir during trial but he testified that said accused was not apprehended in his presence and no weapon was handed over to him being recovered from said accused. He also denied to have made statement U/s 161 Cr.P.C. Mark PW4/A before the police. He also deposed that he had not seen accused Manoj, Devender, Mukesh and Deepu at the scene of crime. This witness has not been cross examined by the accused persons despite grant of opportunity. POLICE WITNESSES:
12. PW2 HC Umesh Kumar: This witness was posted as Incharge of PCR Van Libra 51 during the intervening night of 02/03.07.2012. He deposed that on receipt of information from Control Room regarding apprehension of one thief behind Lal Quarter of Sector3, Bawana, he alongwith other staff rushed there, where one person namely Vikas produced one country made pistol before him and informed that security guard Chandan Jha had handed over said country made pistol to him being recovered from the thief apprehended by said security guard with State Vs Jasbir etc. ("Acquitted") Page 11 of 26 FIR No. 206/12; U/s 395/397 IPC & 25/27 Arms Act; PS Shahbad Dairy D.O.D. 04.11.2015 the help of public persons.
He further deposed that ASI Karan Singh of PS Bawana had also reached there and accordingly, he handed over said country made pistol to him. He identified said pistol as Ex. P2 during trial.
In his cross examination, he deposed that public person namely Vikas alone met them at the spot. He denied the suggestion that Vikas did not meet them at the spot or that no such country made pistol was handed over to him.
13. PW5 ASI (Retd.) Karan Singh: This witness alongwith another Constable had gone to the place of information on receipt of DD no. 4A recorded at PS Shahbad Dairy. He deposed that there were public persons present at the spot and he had also seen accused Jasbir being present over there. HC Umesh Kumar of PCR Van handed over him the country made pistol and told him that said pistol was recovered from accused Jasbir. He went to M.V. Hospital where he met SI Harinder and handed over said pistol to him. He further deposed that SI Harinder had carried out relevant proceedings with regard to aforesaid pistol including preparation of its sketch Ex.PW5/A and seizure of sealed pullanda thereof vide memo Ex.PW5/B. He also identified the said pistol and test fired cartridge as Ex.P2 (colly.) during trial.
In his cross examination, he admitted that nothing was recovered from the possession of accused Jasbir in his presence. He also admitted that IO had not recorded statements of complainant Chandan Jha State Vs Jasbir etc. ("Acquitted") Page 12 of 26 FIR No. 206/12; U/s 395/397 IPC & 25/27 Arms Act; PS Shahbad Dairy D.O.D. 04.11.2015 or Vikas Jha in his presence.
14. PW6 HC Murari Lal: This witness was posted as MHC(M) in PS Shahbad Dairy during the relevant period. He deposed that on 03.07.2012, SI Harinder (IO) had deposited three sealed pullandas, out of which two pullandas were sealed with the seal of M.B. Hospital and one pullanda was sealed with the seal of RK, in Malkhana vide entry at serial no. 1094 in register no. 19. He proved copy thereof as Ex.PW6/A. He further deposed that on 05.07.2012, SI Harinder (IO) had also deposited three sealed pullandas sealed with the seal of RK and personal search articles, in Malkhana vide entry at serial no. 1195 in register no. 19. He proved copy thereof as Ex.PW6/B. He further deposed that on 22.08.2012, six sealed pullandas and one sample seal were sent to FSL, Rohini vide RC no. 174/121/12 through Ct. Subha Ram. He proved copy of said RC as Ex.PW6/C. This witness has not been cross examined by accused persons despite grant of opportunity.
It is pertinent to note that the aforesaid witness again entered into witness box and was examined as PW13 at that time. He again proved the relevant entries of register no. 19 even at that point of time.
15. PW7 Ct. Bhupender: This witness had accompanied SI Harinder to the place of information on receipt of DD No. 5B. He deposed that after leaving him at the spot, SI Harinder had gone to M.V. Hospital. After sometime, SI Harinder returned back to the spot and handed over State Vs Jasbir etc. ("Acquitted") Page 13 of 26 FIR No. 206/12; U/s 395/397 IPC & 25/27 Arms Act; PS Shahbad Dairy D.O.D. 04.11.2015 rukka to him on the basis of which, he got the FIR in question registered. He also deposed that he had subsequently accompanied IO SI Harinder to M.V. Hospital, where accused Jasbir was arrested vide memo Ex.PW3/B on the identification of complainant Chandan Jha. Said accused had made disclosure statement Ex.PW7/A in his presence.
In his cross examination, he denied the relevant suggestions put to him on behalf of accused persons.
16. PW8 Ct. Ravinder Kumar & PW12 HC Arif Khan: Both these witnesses had joined investigation with IO SI Harinder and other police officials namely Ct. Tilak Raj and Ct. Karamvir besides complainant Chandan Jha on 05.07.2012, when accused Deepu, Mukesh and JCL Veerpal are claimed to have been apprehended on the basis of secret information. They exhibited arrest memos and personal search memos of accused Deepu and Mukesh as Ex.PW8/A to Ex.PW8/D. They deposed that said accused led them to rented accommodation i.e. H. no. 10A/1760, Rajeev Ratan Awas, Sector3, Bawana, Delhi and from inside room of the said house, accused Deepu got recovered one gun and five cartridges and confessed to have used the same in the commission of offence of the present case. They also deposed that relevant proceedings including preparation of sketch Ex.PW8/G of recovered gun and cartridges and seizure of sealed pullanda thereof vide memo Ex.PW8/H, was carried out by the IO. They exhibited said gun as Ex.P8/1 and cartridges as Ex.P8/2 (colly.) and another cartridge as Ex.P8/3 during trial.
State Vs Jasbir etc. ("Acquitted") Page 14 of 26 FIR No. 206/12; U/s 395/397 IPC & 25/27 Arms Act; PS Shahbad Dairy D.O.D. 04.11.2015 In their respective cross examination, they could not disclose as to whom the seal of RK appearing on the pullandas of case property, was belonging. They deposed that few patients present in the hospital, were requested to join the investigation but they refused. However, they could not tell as to whether staff / doctors available in the hospital were requested to join the investigation or not. They further deposed that IO did not request any occupant of other flats situated near the aforesaid rented accommodation of accused, for joining the investigation. They denied the relevant suggestions put to them on the lines of prosecution.
17. PW9 Ct. Subha Ram: He is formal witness who had collected sealed pullandas from MHC(M) of PS Shahbad Dairy vide R.C. No. 27/54/12 and had deposited the same in the office of FSL, Rohini on 22.08.2012. He deposed that he had handed over copy of acknowledgment issued by the office of FSL, Rohini to MHC(M) on the same day. This witness has not been cross examined by accused persons despite grant of opportunity.
18. PW14 Ct. Nand Kishore: He deposed that on 31.08.2012, he was posted at PS S.B Dairy as Beat Constable of Village Barwala and had joined the investigation of present case alongwith Ct. Tilak Ram and IO SI Harinder. He deposed that IO SI Harinder had effected arrest of accused persons namely Devender @ Shagun Kumar and Manoj and had also conducted their personal search. He proved arrest and personal search memos as Ex.PW14/A to Ex.PW14/D. He also exhibited disclosure State Vs Jasbir etc. ("Acquitted") Page 15 of 26 FIR No. 206/12; U/s 395/397 IPC & 25/27 Arms Act; PS Shahbad Dairy D.O.D. 04.11.2015 statements made by both the said accused as Ex.PW14/E and Ex.PW14/F. He also exhibited the pointing out memo of both the said accused as Ex.PW14/F. He denied the relevant suggestions put to him during cross examination.
19. PW15 SI Harinder: He is the IO of the case. He has deposed about the relevant investigation carried out by him. He testified that on receipt of DD no. 5B during intervening night of 02/03.07.2012, he alongwith Ct. Bhupender (PW7) had gone to the place of information and thereafter, he had gone to M.V. Hospital, where he met ASI Karan Singh who produced one country made pistol to him. On checking, said pistol was found containing one live cartridge. He prepared rough sketch Ex.PW5/A of said country made pistol and cartridge and thereafter, prepared sealed pullanda thereof and it was sealed with the seal of RK. Thereafter, he seized the said pullanda vide memo Ex.PW5/B. He also deposed that he had seized one sealed pullanda containing pallets besides sample seal, vide memo Ex.PW15/A and got the FIR in question Ex.PW15/C registered through Ct. Bhupender on the basis of rukka Ex.PW15/B prepared by him. He further deposed he had also prepared site plan Ex.PW15/D at the instance of Vikas Jha (PW4). He also arrested accused Jasbir on the identification statement of complainant Chandan Jha.
He further deposed that on 05.07.2012, he again joined investigation of this case with police officials namely HC Arif Khan State Vs Jasbir etc. ("Acquitted") Page 16 of 26 FIR No. 206/12; U/s 395/397 IPC & 25/27 Arms Act; PS Shahbad Dairy D.O.D. 04.11.2015 (PW12), Ct. Ravinder (PW8), Ct. Tilak Raj and Ct. Karamvir, when accused Deepu, Mukesh and JCL Veerpal were apprehended. He deposed on identical lines with regard to investigation carried out by him on that day, as deposed by PW8 and PW10 whose testimonies have already been discussed in the preceding paras.
He further deposed that on 31.08.2012, he again joined investigation of the case with Ct. Nand Kishore (PW14) and Ct. Tilak Raj, when accused Devender and Manoj were apprehended on the basis of secret information. He deposed on the identical lines with regard to investigation carried out by him on that day, as deposed by PW14 whose testimony has already been discussed in the preceding paras.
He further deposed that accused Devender and Manoj had refused to participate in their judicial TIP conducted during investigation. He got the relevant exhibits deposited in FSL, Rohini through Ct. Subha Ram on 22.08.2012 and had also seized licence and permission of SBBL gun produced before him, vide memo Ex.PW1/B. He also identified the relevant exhibits and the accused persons during trial.
In his cross examination, he explained that seal of RK was belonging to HC Rajesh Kumar. He admitted that HC Rajesh Kumar neither joined investigation of this case nor he was a witness in this case. He deposed that no DD entry was lodged by him regarding handing over of seal of RK to him by HC Rajesh Kumar or with regard to returning back of said seal to HC Rajesh Kumar. He also could not tell the date, when seal State Vs Jasbir etc. ("Acquitted") Page 17 of 26 FIR No. 206/12; U/s 395/397 IPC & 25/27 Arms Act; PS Shahbad Dairy D.O.D. 04.11.2015 was returned back to HC Rajesh Kumar. He further deposed that he had deposited 23 other patients available in M.V. Hospital for joining the investigation but they had refused. However, no effort was made for joining nursing staff / doctors who were available in the hospital, for joining the investigation. He further deposed that there were several flats surrounding the rented flat of accused Mukesh and JCL Veerpal, but he did not request any occupant of those flats for joining them in the investigation. The main door of said flat was bolted from outside and nobody was present inside the said flat. He did not call landlord of said rented flat and also did not prepare any site plan of the place of recovery and gun and cartridge. No photograph was taken of the said place. He denied the relevant suggestions put to him on behalf of accused persons.
20. PW16 Sh. M.A. Rizvi: This witness had accorded sanctions U/s 39 Arms Act for prosecuting accused Jasbir and Deepu for the offence punishable U/s 25 Arms Act. He proved both the said sanctions as Ex.PW16/A and Ex.PW16/B respectively.
In his cross examination, he admitted that relevant case property was not produced before him, when sanctions were accorded by him. However, he denied the suggestion that both the said sanctions were given by him in mechanical manner or without application of mind. MEDICAL EVIDENCE
21. PW10 Dr. S.N. Sidharth: This witness had examined patient/ complainant Chandan Jha on 03.07.2012 at about 3.40 am at M.B hospital State Vs Jasbir etc. ("Acquitted") Page 18 of 26 FIR No. 206/12; U/s 395/397 IPC & 25/27 Arms Act; PS Shahbad Dairy D.O.D. 04.11.2015 vide MLC no. 2596/12. He deposed that said patient was brought by one Avinish Tiwari with alleged history of fire arm injury and on his local examination, he was found having following injuries:
1. Multiple abrasion and lacerated wound over right forearm.
2. One wound present over right parietal region.
3. One wound present over right lower ribs.
4. Clean lacerated wound approximately 2.5 cm x 0.5 cm over left parietal region.
He exhibited aforesaid MLC as Ex.PW10/A and deposed that nature of injury was kept under observation. He also deposed that he had sealed one white colour vest and pellets and had handed over the same to IO and had also declared the said patient as fit for statement. This witness has not been cross examined by accused persons despite grant of opportunity. FORMAL WITNESS:
22. PW11 Sh. Chanderjit Singh: He deposed that on 31.08.2012, he was posted as Metropolitan Magistrate. He had conducted TIP of accused persons namely Manoj S/o Sh. Mahesh and Devender S/o Sh. Giran Singh. He proved application for conducting TIP as Ex.PW11/A, TIP proceedings of accused as Ex.PW11/B and application for obtaining copy of TIP proceedings in respect of accused Devender as Ex.PW11/C. He also exhibited the envelope containing TIP proceedings as Ex. PW11/D. He testified that accused Manoj had refused to participate in judicial TIP. He exhibited the TIP proceedings in respect of said accused as Ex. PW11/E. State Vs Jasbir etc. ("Acquitted") Page 19 of 26 FIR No. 206/12; U/s 395/397 IPC & 25/27 Arms Act; PS Shahbad Dairy D.O.D. 04.11.2015 He also exhibited application for obtaining copy of TIP proceedings as Ex.PW11/F and also exhibited the envelope containing the TIP proceedings of accused Manoj as Ex.PW11/G. Nothing material has came on record during cross examination of said witness.
ARGUMENTS ADVANCED AND CASE LAW CITED
23. While opening the arguments, Ld Additional PP vehemently argued that both the public witnesses i.e. PW3 namely Chandan Jha (complainant) and PW4 Vikas Kumar have supported the case of prosecution on material points. He submitted that both the said public witnesses have narrated about the incident and since accused persons could not impeach their testimonies, prosecution has been able to establish the guilt of accused persons for the offence punishable U/s 395 IPC.
24. On the other hand, Ld defence counsels appearing on behalf of accused persons vehemently argued that the accused persons have been falsely implicated in this case. They further argued that no cogent evidence has been led by prosecution during trial and thus, prosecution has failed to establish the offences charged against the accused persons beyond shadow of doubt. Ld. defence counsels further argued that both the material public witnesses i.e. PW3 Chandan Jha and PW4 Vikas Kumar have not identified the accused persons during trial and thus, accused deserve to be afforded benefit of doubt in this case.
State Vs Jasbir etc. ("Acquitted") Page 20 of 26 FIR No. 206/12; U/s 395/397 IPC & 25/27 Arms Act; PS Shahbad Dairy D.O.D. 04.11.2015
25. It is well settled principle of law that an essential element of offence of dacoity is that five or more persons must conjointly commit or attempt to commit robbery(Reliance placed on AIR 1957 SC 320, 1992 Cr.L.J. 3819 and AIR 1962 Manipur 7). It also needs no emphasis that actual participation by every one of the five or more persons in commission of the robbery whether as major actors or aiders, is necessary for the purpose of attracting offence U/s 395 IPC. Still if any authority is required then reference with advantage can be made to judgment reported at AIR 1973 SC 760. In other words, there must be some material available on record in order to show that there was assembly of atleast five persons in order to constitute the offence of dacoity.
26. Now adverting back to the facts of the present case. It is quite evident from the aforesaid discussion that PW3 Chandan Jha (complainant) and PW4 Vikas Jha were the only two star witnesses examined by prosecution during trial in order to establish the charges levelled against the accused persons. Unfortunately, both the said key witnesses failed to identify any of the accused persons during trial. They also did not support the prosecution story to great extent on material facts. Both the said witnesses denied to have made their police statements relied by prosecution, during the course of investigation. Not only this, PW3 categorically denied to have snatched any country made katta from the possession of accused Jasbir or to hand over the same to PW4 Vikas Jha. Rather, he claimed that he had lost his consciousness after sustaining gun shot injury on his right State Vs Jasbir etc. ("Acquitted") Page 21 of 26 FIR No. 206/12; U/s 395/397 IPC & 25/27 Arms Act; PS Shahbad Dairy D.O.D. 04.11.2015 arm. Similarly, PW4 Vikas Jha also denied to have been handed over any country made pistol by PW3 Chandan Jha. He also denied to have handed over said country made pistol to PCR Van official.
27. Both the aforesaid witnesses turned hostile to the case of prosecution and denied all the relevant suggestions put to them by Ld. Additional PP on the lines of prosecution story. As per the case of prosecution, both the said witnesses alone could have proved the case of prosecution by deposing on the lines of prosecution story but none of them supported its case during the course of trial. It is important to note that attention of both the said witnesses were also drawn towards the accused persons individually during the course of trial, but both of them deposed that none of the accused persons was amongst the assailants involved in the commission of offence.
28. Although, Ld. Additional PP vehemently argued that there is recovery of country made pistol containing one live cartridge from the scene of crime but unfortunately, there is no cogent evidence available on record to show that said country made pistol was recovered from the possession of accused Jasbir. According to the case of prosecution, it was complainant Chandan Jha (PW3), who had managed to snatch the country made pistol from the possession of accused Jasbir after said accused was apprehended by him with the help of public persons and thereafter, PW3 had handed over said pistol to PW4 Vikas Jha, who inturn handed over the same to PCR official i.e. PW2 HC Umesh Kumar and HC Umesh Kumar State Vs Jasbir etc. ("Acquitted") Page 22 of 26 FIR No. 206/12; U/s 395/397 IPC & 25/27 Arms Act; PS Shahbad Dairy D.O.D. 04.11.2015 had handed over the same to ASI Karan Singh (PW5). However, PW3 and PW4 denied recovery of any such country made pistol from the possession of accused Jasbir. That being so, relevant portions of the testimonies of PW2 and PW5 that they were informed about recovery of said pistol from accused Jasbir, cannot be believed or accepted as the testimonies of said two police officials is based upon hearsay evidence. Likewise, there is no iota of evidence available on record to show that accused Deepu was involved in dacoity in question or that he used any deadly weapon while committing dacoity in this case. In other words, the prosecution failed to lead clinching evidence, which may conclusively connect the accused persons with the commission of offence of dacoity or having used dangerous weapons by accused Jasbir and Deepu while committing said dacoity. Thus, it is held that prosecution has failed to establish the charge for the offence punishable U/s 395 IPC against the accused persons as also the charge for the offence punishable U/s 398 IPC levelled against accused Jasbir and Deepu beyond pales of reasonable doubt.
29. This brings me down to the offences punishable U/s 25/27 Arms Act charged against accused Jasbir and Deepu. For the reasons already mentioned herein above, there is no iota of doubt that evidence is lacking in this case to establish that accused Jasbir was found in possession of country made pistol and one live cartridge as alleged against him. Rather, the facts of the present case suggest that no country made pistol or live cartridge was recovered from his possession at the time of his State Vs Jasbir etc. ("Acquitted") Page 23 of 26 FIR No. 206/12; U/s 395/397 IPC & 25/27 Arms Act; PS Shahbad Dairy D.O.D. 04.11.2015 apprehension/arrest. The relevant part of prosecution story that country made pistol containing live cartridge was snatched by complainant Chandan Jha from the possession of accused Jasbir, has been demolished in view of the testimony of complainant Chandan Jha examined as PW3 as he has totally denied said part of the case of prosecution during trial.
30. Ld. Additional PP vehemently argued that accused Deepu got recovered one SBBL gun / rifle besides five live cartridges from his rented accommodation bearing H. no. 10A/1760, Rajeev Ratan Awas, Sector3, Bawana, Delhi. He submitted that since said accused could not produce any valid licence to possess the said rifle and cartridges, he should be convicted for the offence punishable U/s 25 Arms Act. There is no substance in the said argument for several reasons.
31. Firstly, no effort is shown to have been made for joining independent public witness either before effecting recovery of gun/rifle and cartridges at the instance of accused Deepu. All the three alleged recovery witnesses namely PW8 Ct. Ravinder Kumar, PW12 HC Arif Khan and PW15 SI Harinder have admitted in their respective cross examination that there were various flats situated in the locality, wherein rented flat from which aforesaid arm and ammunitions were got recovered was situated, but no effort was made by any of them to join any of the occupants of said flats to join the investigation.
32. In a case law reported as Anoop Joshi Vs State, 1992 (2) C.C. Cases 314 (HC), Hon'ble High Court of Delhi has observed as under: State Vs Jasbir etc. ("Acquitted") Page 24 of 26
FIR No. 206/12; U/s 395/397 IPC & 25/27 Arms Act; PS Shahbad Dairy D.O.D. 04.11.2015 "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 shopkeepers 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."
33. Secondly, no material / evidence has been placed on record to show that Flat No. 10A/760, Rajeev Ratan Awas, Sector3, Bawana, Delhi was belonging to accused Deepu in any manner. In other words, IO did not try either to join landlord of the said flat as also admitted by him during his cross examination nor he seized any document including rent agreement / rent receipt showing that the aforeasid premises was in possession of accused Deepu. Thirdly, it has been admitted by PW15 during his cross examination that the aforesaid flat was simply bolted from outside without having any lock on it at the time of their visit to the said flat and none was found present inside the said flat at that time. That being so, the possibility of planting of aforesaid arm and ammunitions inside the said flat, cannot be ruled out. Fourthly, there has to be recovery of arm and ammunitions from the conscious possession of an accused in order to make him liable for the offence punishable U/s 25 Arms Act, which is not the case herein. Fifthly, State Vs Jasbir etc. ("Acquitted") Page 25 of 26 FIR No. 206/12; U/s 395/397 IPC & 25/27 Arms Act; PS Shahbad Dairy D.O.D. 04.11.2015 the recovery of aforesaid arm and ammunitions from inside the aforesaid flat, becomes doubtful in view of relevant portion of cross examination of PW1, wherein he has testified that he was forced by police officials to hand over his aforesaid SBBL gun no. 17595 and bowing to the pressure of police officials, he had handed over the said gun to them after taking it from the office of his employer.
34. Moreover, it is well settled law that whenever two views are possible on the basis of evidence available, the view in favour of accused should be adopted by the Court. Still, if any authority is required, then reference with advantage can be made to the judgment reported at 1992(2) Crimes 870 (H.P.).
35. In the light of aforesaid discussion, Court is of the view that prosecution has also miserably failed to bring home the guilt of accused Jasbir and Deepu for the offences punishable U/s 25/27 Arms Act. Consequently, all the accused persons namely Jasbir, Mukesh, Deepu, Devinder @ Shagun and Manoj are hereby acquitted of the charges levelled against them. File be consigned to Record Room after compliance of Section 437A Cr.P.C, as per the rules.
Announced in open Court today
On 04.11.2015 (Vidya Prakash)
Additional Sessions Judge04 (North)
Rohini Courts, Delhi
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