Delhi District Court
State vs . Anil Dagar Etc. Fir 461/12 ... on 16 March, 2017
State Vs. Anil Dagar etc. FIR 461/12 (56510/2016)
IN THE COURT OF SHRI MANISH YADUVANSHI
ADDITIONAL SESSIONS JUDGE 05: WEST : DELHI.
IN THE MATTER OF
Case No. 56510/16
FIR No. 461/12
PS Uttam Nagar
U/s 452/307/34 IPC & 25/27/54/59 A.Act.
STATE
VERSUS
ANIL DAGAR
S/O SH.AJEET DAGAR
R/O H.NO. 181, PHASEII,
POCKETI, NETAJI SUBASH APARTMENT,
SECTOR13, DWARKA, DELHI. AND
VILLAGE ISSA PUR, NAJAF GARH,
NEW DELHI.
Date of Institution : 08.08.2014.
Date of Reserving Judgment : 10.03.2017.
Date of Judgment : 16.03.2017.
Result: Acquitted Page 1 of 30
State Vs. Anil Dagar etc. FIR 461/12 (56510/2016)
JUDGMENT
1.In brief, the case of the prosecution is that on 31.10.2012, on receipt of DD no.42A (Ex.PW9/A), SI Rampal (PW9) alongwith Ct.Kuldeep (PW6) reached at the spot i.e.H.No. C2/5, Bhagwati Garden Extn., Uttam Nagar, Delhi, where they came to know that the injured has been shifted to DDU hospital. At the spot, there was lot of blood lying in a room at the first floor of the said house. In the meanwhile, local SHO alongwith his staff had also reached there. Thereafter, SI Rampal alongwith Ct.Kuldeep reached at DDU hospital, where the injured Ajit Hooda was found admitted. IO collected the MLC no. 22827/12 (Mark PW9/D) of the injured Ajit Hooda. IO recorded the statement of injured Ex.PW1/A to the effect that he is residing with his family at C2/5, Bhagwati Garden Extn., Uttam Nagar and running a shop by the name of "Hooda Cable" at the said address. He has further stated that on 31.10.2012, at about 09:15 PM, he alongwith his wife Brijesh Hooda, son Ishu and daughter Anshita were present in the house. In the meanwhile, accused Anil Dagar, who is residing at Najafgarh alongwith his friend Puran Result: Acquitted Page 2 of 30 State Vs. Anil Dagar etc. FIR 461/12 (56510/2016) Gosai, who is residing at Dwarka, whom he already knew, entered his house forcibly. He has further stated that he asked them as to why they entered his house forcibly upon which both of them uttered, "Election मे खचे के 34,000/र बचे हएु है पैसे अभी वािपस करो". He further stated that his wife had participated in the elections for the post of Councilor, from the party of Om Prakash Chautala from Mohan Garden area, in the year 2012 and for bearing the expenses of the same, the money was transferred by them amongst each other. 1.1 The injured tried to explain to assailants that his wife has already lost the Elections and they have incurred considerable expenses and if any amount is due towards them, even the same will also to be repaid. However, upon this, both the accused persons got agitated and started abusing the complainant in unparliamentry language. In the ensuing melee, accused Anil Dogra punched the complainant on his face and also pushed aside the complainant's wife/ PW2. Accused Puran Gosai caught hold of the complainant with the intention to cause him injury/death. Accused Anil Dagar took out a Pistol/Katta (Ex.P.1) from his right trouser pocket and despite resistance by the complainant, he was able to fire one round which hit the complainant on his right hand. Upon hearing the gun shot, the Result: Acquitted Page 3 of 30 State Vs. Anil Dagar etc. FIR 461/12 (56510/2016) neighbours started gathering upon which the assailants ran way.
2.On the statement of the complainant and rukka/Ex.PW9/B, an FIR no.461/12 (Ex.PW7/B), PS Uttam Nagar, U/s 452/307 IPC & 25/27/54/59 A.Act was registered against both the accused persons as per endorsement Ex.PW7/A and investigation was carried out.
3.During investigation, from the spot, one fired bullet and one empty shell of 7.65 mm was found lying, which were taken into possession. From the spot, blood, blood stained earth and earth control were lifted and taken into possession. On 01.11.2012, accused Anil Dagar and Amit @ Puran Gosai were arrested. From the possession of accused Anil Dagar, one loaded pistol and three live cartridges were recovered. Sketch of pistol and three live cartridges were prepared. Site plan was prepared. Exhibits were sent to FSL, Rohini. After completion of investigation, chargesheet U/s 452/307/34 IPC & 27/54/59 A.Act against both the accused persons was filed before the Court.
4.Thereafter, the case was committed to the Court of Sessions.
Charge U/s 452/307/34 IPC was framed against both the accused persons and a separate Charge U/s 25/27/54/59 A.Act was Result: Acquitted Page 4 of 30 State Vs. Anil Dagar etc. FIR 461/12 (56510/2016) additionally framed against accused Anil Dagar only, on 18.10.2014, to which they pleaded not guilty and claimed trial.
5.To prove its case, the prosecution in total has examined 11 witnesses i.e. PW1 Ajeet Hooda, PW2 Smt.Brijesh Hooda, PW3 Ms.Anshika, PW4 Ishu Hooda, PW5 Ct.Krishan Kumar, PW6 Ct.Kuldeep Singh, PW7 ASI Zile Singh, PW8 Insp.Amrinder Kumar, PW9 SI Ram Pal, PW10 Sh.Devender Arya and PW11 Abhijit Dey.
6.PW1 Ajeet Hooda has deposed that on 31.10.2012, at about 09:00 PM, two persons having pistols in their hand, entered into his house and they started snatching money from him. He has further deposed that one of them fired a shot from the pistol towards him which hit on his left hand. He fell on the ground and blood oozed from his wound.
(i) This witness has proved his statement as Ex.PW1/A. He has further deposed that he could not identify those two persons who entered into his house and fired pistol shot towards him.
(ii) This witness was declared hostile and crossexamined by the Ld.Addl.P.P.for the State wherein he has denied the suggestion put to him by the Ld.Addl.P.P.that both the accused persons, who were Result: Acquitted Page 5 of 30 State Vs. Anil Dagar etc. FIR 461/12 (56510/2016) present in court had trespassed into his house on 31.10.2012 and when he asked about their forcible entry in his house, they demanded Rs.34,000/ as Election expenses from him. He has denied the suggestion of Ld.Addl.P.P.that accused Anil Dagar and Puran Gosai become angry and started abusing him and accused Anil Dagar hit him on his mouth with fist and when his wife came to intervene, accused Puran Gosai pushed his wife as a result of which, she fell down. He has denied the suggestion that accused Puran Gosai caught hold of him while saying that since he has not given money, they shall eliminate him today and thereafter, accused Anil Dagar took out one Katta from his left dub and pointed the same on him and when he attempted to hold the Katta, he fired and the bullet hit on his left hand and accused Anil Dagar fired upon him with the intention to kill him. He has denied the suggestion of the Ld.Addl.P.P.for the State that he is deliberately concealing the true facts and deliberately making false statement while deposing that he could not identify the accused persons and not identifying the accused persons as the person who trespassed into his house and assaulted his wife and caused him one gun shot injury with the intention to kill him.
7.PW2 Smt.Brijesh Hooda has deposed that on 31.10.2012, at about Result: Acquitted Page 6 of 30 State Vs. Anil Dagar etc. FIR 461/12 (56510/2016) 09:00 PM or 09:15 PM, 23 persons in muffled face entered in their house and one bullet was fired and thereafter, she become unconscious, as a result of which, her husband sustained injuries on his hand and started bleeding. She has further deposed that today none of those persons were present in the Court. She has denied that she had told to the IO in her statement that both the accused persons were asked as to why they have entered in their house in the night and both of them told that Rs.34,000/ for the Elections is balance towards them and they demanded their money at once. She has also denied the suggestion put to her by Ld.Addl.P.P.for the State that she is deliberately not identifying the accused persons and she is deliberately concealing their identity since the accused Anil Dagar is Son in law of her sister and accused Puran is friend of Anil Dagar.
8.PW3 Ms.Anshika is daughter of PW1 and PW2 and has deposed that on 31.10.2012 at about 09:00 PM, she heard some noise and when she and her brother came out from the room, they saw 23 persons who were in muffled face and were of long height and thin physique. Her mother asked her to go out and to see her father and in the meanwhile, those persons managed to escape. She has further deposed that she saw that her father was bleeding from his hand and Result: Acquitted Page 7 of 30 State Vs. Anil Dagar etc. FIR 461/12 (56510/2016) she gave towel to her father to stop bleeding.
(i) This witness has further deposed that her father sustained gun shot injury on his left hand, but she did not know who caused him the injuries as they were in other room. This witness was also declared hostile and crossexamined by the ld.Addl.P.P.for the State wherein she has also denied the suggestions qua the involvement of accused Anil Dagar and his friend Puran Gosai in the incident dt. 31.10.2012 that occurred in their house.
9.PW4 Sh.Ishu Hooda, son of PW1 and PW2 as well as brother of PW3, has deposed that on 30th or 31st September, 2012, at about 08:00 PM, 08:30 PM or 09:00 PM, his mother came into their room and some noise of shouting was coming from the room of his father. They saw from the iron net door of his room that there were 2 or 3 persons stepping down from the stairs and they were in muffled faces. They saw his father was having injury on his left hand. This witness has further deposed that though he could identify those persons, but none of those persons were present in the court.
(i) This witness was also declared hostile and crossexamined by the Ld.Addl.P.P.for the State, wherein he has admitted the date of incident as 31.10.2012 instead of 30.10.2012. He has denied the Result: Acquitted Page 8 of 30 State Vs. Anil Dagar etc. FIR 461/12 (56510/2016) suggestion put to him by the Ld.Addl.P.P.for the State that accused Anil Dagar and Puran Gosai entered into their house and when his father asked both the accused persons about the reason of entering in their house, they told that Rs.34,000/ is outstanding against his father and they demanded their money from his father. He has also denied the suggestion that his parents and his cousin sister have pressurized him not to depose true facts and deliberately he is not identifying the accused persons as the persons who entered into their house and attempted to murder his father.
10.PW5 Ct.Krishan Kumar has proved the RC no. 6/21/13, copy of which is Ex.PW5/A, vide which he had deposited the five sealed pullandas alongwith the sample seal at FSL, Rohini on 08.01.2013. He has also proved the photocopy of receipt of the same as Ex.PW 5/B.
11.PW6 Ct.Kuldeep Singh has deposed that on 31.10.2012, he reached at H.No.C2/5, Bhagwati Garden Extension and handedover the DD no.42 to SI Ram Pal. Thereafter, he alongwith SI Ram Pal reached at DDU hospital and collected the MLC of Ajit Hooda and recorded his statement. Thereafter, SI Ram Pal prepared rukka and Result: Acquitted Page 9 of 30 State Vs. Anil Dagar etc. FIR 461/12 (56510/2016) handedover the same to him for getting the case registered. After getting the FIR registered, he had reached at the spot and handedover the copy of FIR alongwith original Tehrir to SI Ram Pal.
(i) This witness has proved the Seizure memo Ex.PW6/A qua lifting of empty shell and bullet piece, sketch of the same as Ex. PW 6/A.1, Seizure Memo qua lifting of blood and earth Control as Ex.PW6/B, Seizure memo of parcel given by the doctor, containing blood stained clothes of injured Ajit as Ex. PW6/C.
(ii) This witness has also proved the Arrest memo of accused Anil Dagar as Ex.PW6/F, his personal search memo as Ex.PW6/F.1 and his disclosure statement as Ex.PW6/G. He has also proved the Arrest memo of accused Amit @ Puran as Ex.PW6/H, his personal search as Ex.PW6/H.1 and his disclosure statement as Ex.PW6/J.
(iii) This witness has further deposed that from the cursory search of accused Anil Dagar, one pistol was recovered from the left dub of the pant worn by the accused. He has also proved the sketch of the recovered weapon as Ex.PW6/D and Seizure memo of the weapon and cartridges as Ex.PW6/E. He has further deposed that on 28.12.2012, he collected exhibits of this case i.e.two parcels, two Result: Acquitted Page 10 of 30 State Vs. Anil Dagar etc. FIR 461/12 (56510/2016) CFSL Forms duly sealed with the seal of RP vide RC no. 241/21/12 and deposited the same under a receipt.
12.PW7 ASI Zile Singh has proved the computer generated copy of FIR as Ex.PW7/B and his endorsement on the rukka as Ex.PW7/A.
13.PW8 Insp.Amrinder Kumar has proved the Crime team report as Ex.PW8/A, which was prepared by him on 31.10.2012.
14.PW9 SI Ram Pal is the Investigating Officer of this case. He has deposed about all the proceedings conducted by him in the present case. He has proved the statement of injured which was recorded by him in the hospital as Ex.PW1/A. He has also proved the Seizure memo of blood stained T.shirt and blood stained Towel of injured as Ex.PW6/C; rukka, prepared by him after recording statement of injured as Ex.PW9/B; Seizure memo as Ex.PW6/A qua lifting of empty Shell and one bullet piece from the spot; sketch of the same as Ex.PW6/A.1; photographs of empty Shell and bullet piece as Mark PW9/A and Seizure memo of blood sample and earth control sample as Ex.PW6/B.
(i) This witness has also proved the Arrest memo of accused Anil Dagar as Ex.PW6/F, his personal search memo as Ex.PW6/F.1 and Result: Acquitted Page 11 of 30 State Vs. Anil Dagar etc. FIR 461/12 (56510/2016) his disclosure statement as Ex.PW6/G. He has also proved the Arrest memo of accused Amit @ Puran as Ex.PW6/H, his personal search as Ex.PW6/H.1 and his disclosure statement as Ex.PW6/J.
(ii) This witness has further deposed that from the cursory search of accused Anil Dagar, one pistol was recovered from the left dub of the pant worn by the accused and on checking, the pistol was found loaded with three live cartridges in the Magazine. He has also proved the sketch of the recovered weapon as Ex.PW6/D and Seizure memo of the weapon and cartridges as Ex.PW6/E. He has also proved the photographs of the recovered pistol and cartridges as Mark PW9/B. He has further deposed that in the cursory search of accused Puran Goasi, one mobile phone and Rs.80/ were recovered.
(iii) This witness has also proved the statements of witnesses namely Anshita Ex.PW3/A, Smt.Brijesh Hooda Mark PW2/A and Ishu Ex.PW4/PX, which were recorded by him during the course of investigation. He has also proved the site plan of the spot as Ex.PW 9/C. He has further deposed that he had also sent the exhibits of this case to FSL vide RC No. 6/21 and collected the opinion on the MLC of injured which was opined to be "Grievous". He has also proved Result: Acquitted Page 12 of 30 State Vs. Anil Dagar etc. FIR 461/12 (56510/2016) the photographs of the spot, which were taken by the Crime Team as Mark PW9/E.1 to Mark PW9/E.12. He has further deposed that after obtaining the Sanction U/s 39 of the Arms Act, he had filed the Chargesheet before the Court.
15.PW10 Sh.Devender Arya, SP has proved the Sanction U/s 39 of the Arms Act, given by him on 02.04.2013, for prosecution against accused Anil Dagar for the offence U/s 25 A.Act, as Ex. PW10/A.
16.PW11 Sh.Abhijit Dey, retired from the post of Principal Scientific Officer and HOD Ballistic CFSL, CBI, New Delhi has proved his report bearing no. F.152 as Ex.PW11/A and identified his signatures. He has further deposed that on opening the parcels no.1, he found it containing one 7.65 mm Country made pistol which was marked as W/1 by him. It was having an empty magazine which was marked as M/1 by him. There were three cartridges of 7.65 mm each in it, which he had marked as C/1 to C/3. He has further deposed that on opening another parcel, he found it containing one 7.65 mm fired cartridge case which was marked by him as C/4. The parcel also contained one another 7.65 mm fired bullet which was marked by him as BC/1.
Result: Acquitted Page 13 of 30State Vs. Anil Dagar etc. FIR 461/12 (56510/2016) (I) This witness has further deposed that after examining the contents of both the parcels, through physical examination, test firing and microscopic examination, he had opined that the country made pistol Mark W/1 by him was a fire arm and was in working condition. Three cartridges Mark as C/1 to C/3 by him as ammunitions within the Arms Act and were live cartridges. The fired cartridge marked as C/4 by him and another one bullet marked as BC/1 by him, were found to have been fired from the country made pistol Mark W/1 by him.
17.Thereafter, statement of accused Anil Dagar U/s 313 Cr.P.C. has been recorded wherein he has stated that he is innocent. Nothing was recovered at his instance. He was not present at the spot. All the public witnesses did not identify him before the Court. However, he did not examine any witness in his defence.
18.As nothing incriminating had come against accused Puran Gosai, statement of accused Puran Gosai U/s 313 Cr.P.C. was ordered to be dispensed with vide Order dt. 20.12.2016 and he was acquitted for the offence U/s 452/307/34 IPC, vide said order.
19.I have heard Sh.Deepak Sharma, ld. Counsel for accused Anil Dagar and Sh.B.B.Bhasin, Ld.Addl.P.P.for the State and have Result: Acquitted Page 14 of 30 State Vs. Anil Dagar etc. FIR 461/12 (56510/2016) perused the record carefully.
20.It is contention of the Ld.Addl.P.P.for the State that the incriminating circumstance put to this accused U/s 313 Cr.P.C. categorically proves the prosecution's case, so far as Section 25 of the Arms Act is concerned. Although, qua other offences, the prosecution has not given up its arguments to the effect that sufficient evidence has been brought on those counts however, the thrust of the arguments of prosecution is that there is an air tight case that has been proved against this accused U/s 25 of the Arms Act. It is also argued that absence of public witnesses is not a cause of concern as there are no major contradictions amongst the police witnesses.
21. Ld.Addl.P.P.for the State cites a Judgment of the Hon'ble Allahabad High Court titled as Bhagwan Dass Vs. State (NCT of Delhi) Crl.Appeal No. 1117 of 2011. He also cites Judgments in case titled as (1) Appabhai & Anrs. Vs. State of Gujarat in Crl.Appeal No. 318 of 1982 and (2) Siddiqua Vs. Narcotics Control Bureau in Crl.Appeal No. 284/2002.
22.Conversely, the defence has perforce argued that the prosecution Result: Acquitted Page 15 of 30 State Vs. Anil Dagar etc. FIR 461/12 (56510/2016) has remained unsuccessful in proving its case against the accused Anil Dagar on any counts as charged for, what to say about Section 25 Arms Act. It has been urged that all material witnesses have, despite ample opportunity given to them by the prosecution to identify them in the court, failed in so identifying them despite the fact that none of them stated that they had not seen their assailants. It is urged that to begin with, a very vital piece of evidence i.e.pistol Ex.P.1 was never shown to the most material witnesses which are PW1 Sh.Ajeet Hooda, PW2 Smt.Brijesh Hooda, PW3 Ms.Anshika and PW4 Sh.Ishu Hooda despite its availability with the prosecution. It is urged that non production of the pistol for its identification to these witnesses is a major flaw left by the prosecution which even deprived the defence of the valuable right to have crossexamined the said witnesses on the said count.
23.It is further urged that PW1 who was present in the room where the instance, at the first place took place, stated that the assailants were in muffled face, which is against his statement Ex.PW1/A. Contrary to the same, Ishu Hooda, son of PW1 and PW2 who was examined as PW4 as well as daughter PW3 have allegedly seen the assailants stepping down from the stairs in the muffled face. The Result: Acquitted Page 16 of 30 State Vs. Anil Dagar etc. FIR 461/12 (56510/2016) same is said to be a major contradiction amongst the statements of these witnesses. It is argued that the IO did not investigate whether the area from where the accused persons were purportedly arrested was under coverage of CCTV Cameras despite the fact that admittedly the place of arrest is a mixed residential/commercial property. It is also said to be evoking suspicion that the secret informer had met PW9/IO SI Ram Pal near Dwarka Mode Metro Station just by chance. There is also contradiction of the said statement of PW9 SI Ram Pal when compared with the statement of PW6 Ct.Kuldeep Singh, who stated on Oath that the secret information regarding the whereabouts of the accused persons was received by the IO at around 05:00 AM, thereafter which both of them remained present between 5 to 6 AM before the arrival of the accused persons. It is so as the prosecution failed to show as to whether any DD entry was lodged regarding the aforesaid. The fact that the police party waited for about an hour for arrival of the accused persons but did not make any attempts to either join public witnesses to the event of arrest or to the event of recovery of pistol Ex.P.1, live cartridges Ex.P.1A, Ex.P.1B and the now fired Cartridge Result: Acquitted Page 17 of 30 State Vs. Anil Dagar etc. FIR 461/12 (56510/2016) Ex.P.1C which factors are weighed by defence as speaking of volumes regarding possibility of false implication of these accused persons.
24.It has also been urged that in any case, the recovery of pistol used in the commission of offence and its connection with the bullet recovered from the house of the injured as the bullet that was fired from the recovered weapon does not implicate this accused as the main witnesses have never supported prosecution's case to the effect that it was accused Anil Dagar who fired on PW1.
The defence relies upon the Judgments of Hon'ble Delhi High Court titled as Satender Vs. State, 2017 Law Suit (Del) 505. In the said case, the complainant had failed to identify the pistol as well as cartridges recovered from the appellant. In the instant case, the Arms and Ammunitions particularly Pistol Ex.P.1 was never shown to the material witnesses including PW1 Sh.Ajit Hooda. The Hon'ble High Court, had held, in the facts before it, that for offence U/s 25 A.Act, there was no identification of recovered pistol by the complainant.
25.In rebuttal, it has been urged by the Ld.Addl.P.P.for the State that the Court may take judicial notice of the fact that the same accused who pleads innocence and false implication, had, in his own bail Result: Acquitted Page 18 of 30 State Vs. Anil Dagar etc. FIR 461/12 (56510/2016) application dt. 05.11.2012, copy of which is on record of this file, stated that he was present in the house of the complainant upon asking of the complainant only. Once, there, the complainant started fighting with him and it is the complainant who fired upon the applicant. It is urged by the defence that the contents of the bail application have not been proved as per the Evidence Act and in any case, there is nothing in the bail application to show that the accused attempted to either fire upon the complainant or even handled the alleged weapon of offence Ex.P.1.
26.This court has already settled the facts laid by the prosecution and the facts that have actually emerged during the trial. It has already been pointed out that coaccused Puran Gosai was acquitted primarily for the reasons that there was no incriminating evidence against him with respect to committing offence punishable either U/s 452 IPC or U/s 307 IPC.
27.Coaccused Anil Dagar was however explained all incriminating circumstances in his statement U/s 313 Cr.P.C. As a matter of fact, the case of the prosecution against him does not differ from the case that the prosecution had against accused Puran Gosai but for recovery of Arms and Ammunition. Nevertheless, the accused Anil Result: Acquitted Page 19 of 30 State Vs. Anil Dagar etc. FIR 461/12 (56510/2016) Dagar stood in denial of whatever evidence had come on record and he maintained categorically that he is not only innocent but also nothing was recovered from or at his instance. He claims absence from the spot.
28.The case was registered on the edifice of the apparent sanctity of complaint Ex.PW1/A. Therein, PW1 Ajeet Hooda/complainant not only provides the names of both the assailants but also imputes a definitive motive upon the said assailants.
29.However, when the appropriate time came to rest the said claim under Oath, he preferred to maintain that though the incident did take place, however, the persons sent for trial were not the same who trespassed into his house on 31.10.2012 or led to the incident involving his wife leading to him suffering a gun shot injury.
30.The prosecution made all efforts to have the truth elicited from the witnesses in the extensive crossexamination by the Prosecutor, however, PW1 Ajeet Hooda stood on above firm ground thereby demolishing the very edifice of Ex.PW1/A.
31.Of course, the prosecution thereafter rested its case on testimonies of the other victim/PW2 Brijesh Hooda and the children PW3 Ms.Anshika Hooda and PW4 Ishu Hooda. It would be apparent from Result: Acquitted Page 20 of 30 State Vs. Anil Dagar etc. FIR 461/12 (56510/2016) the testimonies of PW3 Ms.Anshika Hooda as well as PW4 Ishu Hooda that even as per their statements Ex.PW3/A and Ex. PW 4/PX respectively that they were purportedly very much witnessing the entire incident which they have narrated to the police as it occurred, in the sequence so stated, in their physical presence. However, PW3 Ms.Anshika Hooda on Oath states that she was in her room when she heard some noise and saw 23 persons in muffled face. It is apparent that as per her chief examination, the main incident had already taken place. She justifies that she did not know the men in the muffled face nor did she know as to who caused injuries as according to her, "We were in other room". She is therefore, implying that her brother PW4 Ishu Hooda was also in some other room than the room where the incident had taken place.
32.Same is testimony of PW4 Ishu Hooda. He witnessed the only fact of 23 persons in muffled face stepping down from the stairs from the Iron wire mesh of the door of his room.
33.Interestingly, both these witnesses know the accused Anil Dagar as their relative. They categorically denied that it was Anil Dagar who was one of the assailant. They maintained this stand in the extensive crossexamination by the Prosecutor.
Result: Acquitted Page 21 of 30State Vs. Anil Dagar etc. FIR 461/12 (56510/2016)
34.The other victim PW2 Smt.Brijesh Hooda also maintained that the assailants were in muffled faces. She claims that after the bullet was fired, she became unconscious and later called the PCR. She maintained that though she knew Anil Dagar as well as Puran Gosai, however, they were not the assailants. She even denied that there was any transaction pertaining to exchange of money with respect to the Municipal Elections. She kept on denying to have made any statement to the police in the manner as recorded by the police in her statement U/s 161 Cr.P.C. Ex.PW2/A.
35.Besides the aforestated witnesses, there is no other witness of the incident pertaining to the commission of offence punishable U/s 452 IPC or 307 IPC. The Ld.Prosecutor has placed heavy reliance on the ratio of Judgment in Bhagwan Dass's Case (Supra). Statement to the police is ordinarily not admissible in evidence in view of the Section 162 (1) of the Cr.P.C, however, it can be definitely used to contradict the testimony of the witnesses.
36.In the said case, the main witness had denied to have made any statement to the police when she was confronted with it. However, it was held that her statement to police could be taken into Result: Acquitted Page 22 of 30 State Vs. Anil Dagar etc. FIR 461/12 (56510/2016) consideration in view of the Proviso of Section 162 (1) of the Cr.P.C. and her subsequent denial in Court is not believable.
37.However, in arriving at that conclusion, the Hon'ble Court had also considered the apparent reason that applied to that case in its unique facts. It was found that the complainant was obviously having after thoughts and wanted to save her son (appellant) from punishment.
38. However, in the instant case, no such opinion can be formulated to the fact that PW1 Ajeet Hooda and PW2 Smt.Brijesh Hooda were having after thoughts either about their own safety or that of their children, out of whom PW3 Anshika Hooda was already a major at the time of recording of her testimony. It is so, as both the accused sent for trial had previously known to them. It is an admitted fact. Even the children, as PWs have admitted to this fact. Moreover, these witnesses have not denied that the incident took place but have maintained that the accused persons were not their assailants. It being so, what they imply is that the actual assailants were not those persons, who have been facing trial. These factors prompt this Court to not to invoke the Section 162 (1) of the Cr.P.C. in prosecution's favour. Needless to say, there is a total denial, of any averments against accused Anil Dagar as well as the already acquitted co Result: Acquitted Page 23 of 30 State Vs. Anil Dagar etc. FIR 461/12 (56510/2016) accused Puran Gosai by Pws 1 to 4.
39.One important factor that came up during the arguments is found in the testimony of the IO/PW9 SI Ram Pal. In his cross examination, the witness voluntarily deposed that accused persons had admitted in their bail application filed in the Sessions Court, that they were present at the spot on 31.10.2012 and a dispute had taken place between them and the complainant. He, however adds that he did not interrogate the accused about the contents of the above admissions made in the bail application. He further stated that there is no admission about the firing by the accused at the spot in the application.
40.Interestingly, the original bail application has not been made part of record. Record would show that the prosecution filed an application U/s 91 Cr.P.C. dt. 21.4.2015 for summoning the bail application. Alongwith the said application, the copy of the bail application was also filed. For the reasons on record, said applications were never called for. It is not a piece of incriminating evidence in statement U/s 313 Cr.P.C. The application or its contents have not been proved by the Prosecution. Nevertheless, even the perusal of the application, at best, only reveals the presence of this accused in the Result: Acquitted Page 24 of 30 State Vs. Anil Dagar etc. FIR 461/12 (56510/2016) complainant's house on 31.10.2012, but it does not implicate the said accused in the incident of firing. Therefore, this cannot be relied upon for want of proper proof.
41.The police witnesses are not related to the main incident. Thus, the prosecution's case against this accused of having committed house trespass after preparation of hurt, assault or wrongful restraint is not proved.
42.So far as the offence U/s 307 IPC is concerned, none of the witnesses states that the accused fired upon PW1 Ajeet Hooda with Pistol Ex.P.1. the report of the Ballistic Expert Ex.PW11/A reveals that Ex.P.1 is "Fire Arm" and the three cartridges are "Ammunitions" as defined in the Arms Act, 1959. It also reveals that the "fired bullet" recovered by the police had been fired from Ex.P.1.
43.This report only establishes that the weapon allegedly recovered from accused Anil Dagar was used in the incident of firing. However, the prosecution does not connect that it was the accused who either fired upon PW1 Ajeet Hooda on the date, time and place mentioned in the Charge, or that this accused had actually used the said Fire Arm Result: Acquitted Page 25 of 30 State Vs. Anil Dagar etc. FIR 461/12 (56510/2016) in Contravention of Section 3 of the Arms Act, while committing the offence. Since, there is no evidence to that effect, court finds no implication of accused U/s 307 IPC or even for that matter U/s 27 of the Arms Act.
44.So far as the offence U/s 25 of the Arms Act is concerned, the defence has maintained that the recovery of Pistol Ex.P.1 and the Cartridges Ex.P1A, Ex.P.1B and Ex.P.1C itself is highly doubtful for the reasons as stated above in the Judgment. The related witnesses in this context are PW6 Ct.Kuldeep Singh and PW9 SI Ram Pal. They remained in the investigation at the spot of incident till about 03:00 AM, to which extent both of them are consistent.
45.Inconsistency occurred subsequently, when PW6 Ct.Kuldeep Singh claims that he and IO proceeded in search of accused persons in pursuance of secret information received by PW9 SI Ram Pal. This information was received at 05:00 AM as per the witness. PW6 was alone on his motorcycle while IO and informer were on the other motorcycle.
46.As per PW9 SI Ram Pal, after he and PW6 Ct.Kuldeep Singh left the spot and reached Dwarka Mode, it was then the informer met him Result: Acquitted Page 26 of 30 State Vs. Anil Dagar etc. FIR 461/12 (56510/2016) by chance and shared the secret information.
47.If PW6 Ct.Kuldeep Singh is to be believed then the police party had already received secret information after which they proceeded in search of the accused persons after 03:00 AM. However, if PW9 SI Ram Pal is to be believed then they had left the spot around 03:00 AM and when they reached Dwarka Mode, then only they received secret information. It is interesting to note that as per the IO, the secret informer had met him by chance. These are not consistent but are mutually destructive statements.
48.Not only this, even the narration of events subsequent to receipt of secret information becomes doubtful after the police party reached at the apprehension site, i.e.'Nawada Metro Station' from the place of secret information i.e.'Dwarka Mode'. According to PW6 Ct.Kuldeep Singh as well as PW9 SI Ram Pal, they waited for about one hour for arrival of the accused persons.
49.Accused Anil Dagar as per PW6 Ct.Kuldeep Singh, was apprehended from the Nawada Metro Station at around 06:00 AM, while coaccused Puran Gosai at about 06:15 AM.
50.Comparing this testimony with the testimony of IO/SI Ram Pal (PW9), a major contradiction can be noted wherein the IO states that Result: Acquitted Page 27 of 30 State Vs. Anil Dagar etc. FIR 461/12 (56510/2016) that at 06:00 AM, accused Anil Dagar was coming from the side of 'Village Nawada' while almost simultaneously Puran Gosai was seen coming from the other side.
51.The informer pointed out to both of them and these two accused persons were apprehended when both reached near each other from the 'Nawada Metro Station'.
52.Only one of these two witnesses can be correct. Perusal of the Arrest Memos reveals that the accused Anil Dagar was arrested at 06:00 AM while Puran Gosai was arrested at 06:15 AM. Both memos clearly show over writing in the time of arrest column. The personal searches of the accused persons would have taken some time. This investigation including documentation qua accused Anil Dagar could not have been completed within 15 minutes i.e.by 06:15 AM.
53.For the aforestated reasons, it is imperative for this Court to look for supporting evidence in order to clear the above doubt regarding mode, manner and time of Arrest including recovery of the Arms and Ammunitions from accused Anil Dagar.
54.Admittedly, a number of people were present around at the time of arrest. The staff of 'Delhi Metro Rail Corporation' was also Result: Acquitted Page 28 of 30 State Vs. Anil Dagar etc. FIR 461/12 (56510/2016) available. The IO has even stated that he attempted to join some passersby/residents/shopkeepers as witnesses to the Arrest without explaining as to why better and suitable action was not taken in this regard when the police officials had spare time for almost one hour between 05:00 AM to 06:00 AM. There is no explanation on record as to why cogent steps were not taken to atleast involving some of the public witness in the event of recovery of Pistol Ex.P.1. Conversely the defence did ask as to why the Cell phone locations of accused persons were not obtained. The defence claim and rightly so that above lapses points to false implication. The above omission is therefore, a major omission.
55.The Court is not oblivious to the fact that merely because recovery has been effected by the police officials, therefore, testimony cannot be doubted provided the same are consistent. The Court has already pointed out about the major inconsistencies in the statements of PW6 Ct.Kuldeep Singh and PW9 SI Ram Pal. Although the Ld.Prosecutor placed reliance in this context on case titled "Appabhai & Anrs. (Supra)", the same does not apply as the recovery witnesses have created doubt on their own credibility thereby weakening the prosecution's case.
Result: Acquitted Page 29 of 30State Vs. Anil Dagar etc. FIR 461/12 (56510/2016)
56.The third Judgment relied by the Prosecution in case titled as " Siddiqua (Supra)" has to be outrightly rejected as not applicable to this case. This shows that independent witnesses cannot be expected to remember each and every thing about the seizure, however, none of the police officials in this case are independent witnesses to seizure. Moreover, giving different version regarding sharing secret information and apprehension of the accused persons is, in my considered view, a glaring omission which goes to benefit to the accused.
57.Thus, the prosecution has been unable to prove its case against the accused Anil Dagar beyond reasonable doubt. Benefit of doubt is given to the accused. Accused Anil Dagar is acquitted for the offences punishable U/s 452/307/34 IPC and 25/27/54/59 A.Act. Accused is directed to furnish bail bonds and surety bonds for a sum of Rs.10,000/(Rupees ten thousand only) with one surety in the like amount in view of Provisions of Section 437A Cr.P.C.
58.Further it is ordered that the case property of this case, if any, be disposed of/destroyed after expiry of period of filing appeal, if any. File be consigned to record room.
ANNOUNCED IN THE OPEN (MANISH YADUVANSHI) COURT ON: 16.03.2017 ASJ05 (West), THC, Delhi. Result: Acquitted Page 30 of 30 State Vs. Anil Dagar etc. FIR 461/12 (56510/2016) Result: Acquitted Page 31 of 30 State Vs. Anil Dagar etc. FIR 461/12 (56510/2016) Result: Acquitted Page 32 of 30 State Vs. Anil Dagar etc. FIR 461/12 (56510/2016) Result: Acquitted Page 33 of 30