Delhi District Court
The State vs 1. Jaswant Singh @ Vishal @ Pahari on 19 November, 2014
D.O.D 19.11.2014 FIR no. 356/2009
P.S Keshav Puram
u/s 398/394/34 IPC alternatively 307/34 IPC
and 25/27/54/59 Arms Act
IN THE COURT OF SH RAJESH KUMAR GOEL:
ADDITIONAL SESSION JUDGE -5 (NORTH),
ROHINI , DELHI
SESSION CASE NO. : 75/2014
UID NO . : 02404R0057272010
FIR No : 356/2009
P. S : Keshav Puram
u/s 398/394/34 IPC
alternatively 307/34 IPC
and 25/27/54/59 Arms Act
The State versus 1. Jaswant Singh @ Vishal @ Pahari
S/O Sh Dhan Singh R/O H.NO 164,
Budh Vihar,Phase II, Delhi
Also at: 64, Tallital, Nainital,
Uttarakhand
2. Virender S/O Panna Lal
R/O H.NO 437-B, Karan Vihar, Phase
II,Kirari , Nangloi, Delhi.
Date of committal to session court : 01-04-2010
Date of argument : 05-11-2014
Date of order : 19.11.2014
JUDGMENT
1 Facts and circumstances giving rise to the SC No.75/14 State vs Jaswant Singh @ Vishal@ Pahari & ors (Page 1 of 36 ) D.O.D 19.11.2014 FIR no. 356/2009 P.S Keshav Puram u/s 398/394/34 IPC alternatively 307/34 IPC and 25/27/54/59 Arms Act present case, as per the story of the prosecution are that on 5.12.2009, Atul Jain(PW2) had gone to Seven Seas Banquet Hall , Lawrence Road industrial area for attending a marriage in his Santro Car no. DL 3 CAL 2002 . He parked his said vehicle in the parking and went inside banquet hall . Rakesh Dwivedi(PW3) was working as security guard in Parado Security company and during that time his duty was at Seven Seas Banquet Hall. Vinod Shah(PW4) was another security guard at aforesaid Seven Seas banquet Hall. The duty of Rakesh Dwivedi was to keep watch on parked vehicles and duty of Vinod Shah was to get the vehicle parked in the parking lot. At about 10:00 pm, three boys came on one motorcycle of red colour and were roaming near the parked cars. One boy got down from the motorcycle . Rakesh Dwivedi raised some suspicion. He called Vinod Shah to keep watch on said three boys. Thereafter, one of the said boy went towards the said Santro car and broke the left side glasses. Rakesh Dwivedi and Vinod Shah went there and tried to apprehend them. Two boys took out pistol and one boy took out knife and threatened them but somehow Rakesh Dwivedi and Vinod Shah managed to apprehended one boy ( accused SC No.75/14 State vs Jaswant Singh @ Vishal@ Pahari & ors (Page 2 of 36 ) D.O.D 19.11.2014 FIR no. 356/2009 P.S Keshav Puram u/s 398/394/34 IPC alternatively 307/34 IPC and 25/27/54/59 Arms Act Jaswant@ Vishal @ pahari). Said boy (accused Jaswant@ Vishal@ Pahari) fired from the pistol due which Rakesh Dwivedi sustained injury on his left thumb. Two boys managed to run away from there on the motorcycle and one of them fired with intention to kill them (Rakesh Dwivedi and Vinod Shah) . Public persons gathered there and they gave beatings on the persons of that boy( accused Jaswant@ Vishal@ Pahari) who was apprehended by Rakesh Dwivedi and Vinod Shah.
2 Information about the said incident was recorded at P.S Keshav Puram vide DD no. 22 A . S.I Afaque Ahmed(PW18), who is the IO, along with Ct. Narender Dhama (PW8) reached at the spot where they came to know that injured Rakesh Dwivedi and one of the accused namely Jaswant@ Vishal@ Pahari have already been removed to the Bhagwan Mahavir Hospital by PCR Van . One Santro Car NO. DL 3 CAL 2002 was found parked there and left side glass of window was broken and pieces of the glasses were lying inside and outside of the car. Vinod Shah handed over one country made pistol recovered from the possession of accused Jaswant @Vishal @ Pahari , to S.I Afaque Ahmad . On SC No.75/14 State vs Jaswant Singh @ Vishal@ Pahari & ors (Page 3 of 36 ) D.O.D 19.11.2014 FIR no. 356/2009 P.S Keshav Puram u/s 398/394/34 IPC alternatively 307/34 IPC and 25/27/54/59 Arms Act checking the pistol , he found one live cartridge . He prepared sketch of the pistol and cartridges and sealed and seized the same vide separate memos.
3 Thereafter , S.I Afaque Ahmad reached Bhagwan Mahavir Hospital where Rakesh Dwivedi met him and he recorded the statement of Rakesh Dwivedi. He made endorsement on the said statement and got registered the FIR . Crime team was called at the spot . Incharge crime team handed over one live and one empty cartridge to constable Narender, recovered from the spot . Santro car bearing no. DL- 3C-AL-2002 was taken into possession. IO prepared site plan at the instance of Rakesh Dwivedi . Accused Jaswant @ Vishal@ Pahari was interrogated, his personal search was carried out and then he was arrested. Pursuant to the disclosure statement made by accused Jaswant , accused Virender was arrested from the court where he had surrendered. Accused Virender is shown to have pointed out the place of occurrence and also got recovered three mobile phones from his house. The third accused could not be arrested.
SC No.75/14 State vs Jaswant Singh @ Vishal@ Pahari & ors (Page 4 of 36 )
D.O.D 19.11.2014 FIR no. 356/2009
P.S Keshav Puram
u/s 398/394/34 IPC alternatively 307/34 IPC and 25/27/54/59 Arms Act 4 Arms and ammunition were sealed and seized and subsequently were sent to FSL for examination. As per the FSL result the pistol recovered from the possession of accused Jaswant @ Vishal @Pahari was found to be in working conditions. Requisite sanction u/s 39 Arms Act was obtained and on completion of investigation, initially accused Jaswant @ Vishal@Pahari was chargesheeted for offences u/s 307/393/397/398/379/511/427/34 IPC and 25/27/54/59 Arms Act. At that time accused Virender was absconding and against him supplementary charge sheet was filed.
5 Vide order dated 5.3.2010, Ld MM took the cognizance of the offences and subsequently, since the offences u/s 307/397/398/34 IPC were exclusively triable by the court of sessions, therefore, vide order dated 1.4.2010, case was committed to the court of sessions .
6 Vide order dated 1.10.2010, ld predecessor of this court decided the charges and accordingly, charges for the offences u/s 398/394/34 IPC and alternatively for the offence u/s 307/34 IPC against both the accused persons and additionally for the offence u/s 25/27/54/59 SC No.75/14 State vs Jaswant Singh @ Vishal@ Pahari & ors (Page 5 of 36 ) D.O.D 19.11.2014 FIR no. 356/2009 P.S Keshav Puram u/s 398/394/34 IPC alternatively 307/34 IPC and 25/27/54/59 Arms Act Arms Act against accused Jaswant @ Vishal @ Pahari, were framed to which they pleaded not guilty and claimed to be tried.
7 In order to prove its case, prosecution has examined as many as twenty one witnesses. Public witnesses examined by the prosecution:
i) PW2 Atul Jain : He is the owner of Santo Car bearing no.
DL-3CAL- 2002, who had gone to Seven Seas Banquet Hall to attend marriage and glasses of the said car were broken to commit robbery by accused persons .
ii) PW3 Rakesh Dwivedi : He is the maker of FIR . He was working as security guard at Seven Seas Banquet Hall and his duty was to keep watch on the parked vehicle. According to the case of prosecution , he is the eye witness and the victim of the crime as he sustained injuries on his left thumb due to the firing. He is shown to have apprehend accused Jaswant @ Vishal @ Pahari . His statement ExPW3/A was recorded in the hospital where he was removed by the PCR. He deposed on the lines of the case of prosecution but turned hostile on the identity of accused persons and he was cross examined by then ld Adll PP for state.
iii) PW4 Vinod Shah : He is the another public and eye witness to the incident. He was also posted as security guard at Seven Seas SC No.75/14 State vs Jaswant Singh @ Vishal@ Pahari & ors (Page 6 of 36 ) D.O.D 19.11.2014 FIR no. 356/2009 P.S Keshav Puram u/s 398/394/34 IPC alternatively 307/34 IPC and 25/27/54/59 Arms Act Banquet Hall where the incident took place . His duty was to get vehicle parked in the parking lot. He is also shown to have apprehend accused Jaswant @Vishal @ Pahari and handed over the arms and ammunition recovered from the accused, to the IO Afaque Ahmad. He also turned hostile on the point of identification of the accused persons and he was cross examined at length by the then Ld Adll PP for the state. However, he was not cross examined by the accused persons despite opportunity.
Police witnesses examined by the prosecution :
i) PW1 S.I Hemant Kumar : He is the duty officer who proved the registration of FIR ExPW1/B.
ii) PW5 Mr.Romil , Adll DCP : On 15.11.2011, He was working as Addl, DCP of North West-I . He had accorded necessary permission u/s 39 Arms Act and same is ExPW5/A. Iii) PW6 Ct. Ranbir : On 24.2.2010, he had deposited the exhibits of the present case to FSL, Rohini and had handed over the receipt of acknowledgment and copy of RC to MHC(M).
iv) PW7 S.I Matadin : He was posted as incharge Crime Moble team, NW District during relevant period. On 5.12.2009 , on receipt of information about the incident he along with HC Vikash,finger print proficient, Ct. Mahender ,Photographer had gone to the spot where IO and other staff met him. One Santro Car no. DL-3CAL-2002 was found parked there and left rear window pane of the car was down. He noticed one live SC No.75/14 State vs Jaswant Singh @ Vishal@ Pahari & ors (Page 7 of 36 ) D.O.D 19.11.2014 FIR no. 356/2009 P.S Keshav Puram u/s 398/394/34 IPC alternatively 307/34 IPC and 25/27/54/59 Arms Act cartridge and one empty shell lying at little distance from each other on the earth . He inspected the spot and prepared report ExPW7/A.
v)PW8 HC Narender Dhama , PW9 HC Ajeet Pal, PW12, Constable Praveen , PW16 HC Jitender and PW17 Ct.
Jagdish : These witnesses are the witnesses who were along with the IO during investigation . It would be suffice to mention the testimony of S.I Afaque Ahmad (PW18) who is the IO , as all other witnesses have deposed exactly on the lines of PW18.
vi) PW11 HC Jai Prakash : He was posted as MHC(M) P.S Keshav Puram during relevant time with whom case properties were deposited.
Vii) PW13 HC Mahender Singh: He was posted as photographer with Crime Team. On 5.12.2009, he along with crime team incharge and other staff reached at the spot on receipt of information , where he had taken photographs of the spot . He proved the photographs ExPW13/A1 to A 14 and negative are ExPW13/A 15 and A 16.
viii) PW14 ASI Prem Singh : He was posted as incharge PCR Van Commander 19. on 5.12.2009, on receipt of information from control room that three boys riding on motorcycle fired one round, he along with staff reached at the spot and found Rakesh Dwivedi(PW3) in injured condition having bullet injury on his thumb. Public persons were found apprehended accused SC No.75/14 State vs Jaswant Singh @ Vishal@ Pahari & ors (Page 8 of 36 ) D.O.D 19.11.2014 FIR no. 356/2009 P.S Keshav Puram u/s 398/394/34 IPC alternatively 307/34 IPC and 25/27/54/59 Arms Act Jaswant @ Vishal @ Pahari , who was beaten up by them. He removed the accused as well as injured to the Bhagwan Mahavir Hospital.
ix) PW15 Inspector Rajeev Shah: He is the IO of case FIR No. 1/10 P.S Rithala Metro Station and accused Virender was arrested in that case and later on he was arrested in the present case.
x) PW18 S.I Afaque Ahmad : On 5.12.2009, on receipt of DD no.22 A , he along with Ct. Narender Dhama((PW8) reached at the spot where they came to know that injured and accused Jaswant were removed to the Bhagwan Mahavir Hospital by PCR Van and one Santro Car NO. DL 3 CAL 2002 was parked there and left side glass of window was broken and pieces of the glasses were lying inside and outside the car. Vinod Shah(PW4) produced the country made pistol recovered from the possession of accused Jaswant , to S.I Afaque Ahmad (PW18) . S.I Afaque Ahmad checked the pistol and found one live cartridge. He prepared the sketch of the pistol and live cartridge vide ExPW4/C, measured the same as mentioned in the seizure memo and the number "7000 automatic pistol made in USA" was mentioned on the barrel and on the side of the barrel "auto pistol 7.65 round" was mentioned and on the upper side of the barrel "only for army supply" was there . The said pistol and live cartridges were kept in a pullanda and sealed it with the seal of AA and seized the same vide seizure SC No.75/14 State vs Jaswant Singh @ Vishal@ Pahari & ors (Page 9 of 36 ) D.O.D 19.11.2014 FIR no. 356/2009 P.S Keshav Puram u/s 398/394/34 IPC alternatively 307/34 IPC and 25/27/54/59 Arms Act memo ExPW4/B. In the meanwhile Ct Ajit Pal (PW9) , Ct Jitender (PW16) also reached at the spot. He along with ct. Ajit Pal (PW9) and ct. Jitender(PW16) reached Bhagwan Mahavir Hospital where he met Rakesh Dwivedi(PW3) and recorded his statement ExPW3/A and made endorsement ExPW18/A on the same and sent Ct. Jitender for registration of FIR .
PW18 further deposed that he along with complainant and accused Jaswant @ Vishal @ Pahari returned back at the spot where he came to know from Ct. Narender that Incharge crime team inspected the spot and left the spot after handing over one live cartridge and one empty cartridge recovered from the spot to Ct. Narender . He seized the Santro Car bearing no. DL3 CAL2002 vide seizure memo ExPW4/D and prepared site plan ExPW18/B at the instance of Rakesh Dwivedi(PW3). He arrested accused Jaswant @ Vishal @ Pahari vide arrest memo ExPW3/B , his personal search was conducted vide memo ExPW3/C and his disclosure statement ExPW8/B was recorded. PW18 further deposed that he searched the spot and found one empty shell and ct Narender (PW8) handed over the empty and live cartridge to him. He prepared the sketch ExPW8/A of two empty shell and one live cartridges . The pointing out memo of accused Jaswant@ Vishal @ Pahari ExPW8/C was also prepared . His supplementary disclosure statement is ExPW12/A. SC No.75/14 State vs Jaswant Singh @ Vishal@ Pahari & ors (Page 10 of 36 ) D.O.D 19.11.2014 FIR no. 356/2009 P.S Keshav Puram u/s 398/394/34 IPC alternatively 307/34 IPC and 25/27/54/59 Arms Act PW18 further deposed that accused Virender surrendered before the court situated at Rohini Court. On 10.2.2010, he was produced in the court and he was interrogated and was arrested vide arrest memo ExPW17/A, his personal search was taken vide memo ExPW17/B and his disclosure statement regarding his involvement in the present case ExPW17/C, was also recorded. On 11.2.2010, accused Virender led the police party near Seven seas Banquet Hall and pointed out the place of incident and his pointing out memo ExPW18/B1 was prepared . Accused Virender got recovered three mobile phones from his house and same were taken into possession vide seizure memo ExPW18/B2. The motorcycle used in the commission of offence in the present case was recovered by the Crime Branch in case FIR no.1/10 P.S Rithala Metro Station . On 3.3.2010, he moved an application for the TIP of accused Virender . On 12.3.2010, TIP of accused Virender was got conducted and TIP proceedings are ExPW18/D.
xi) PW19 Sonu Ram. He is just formal witness who had collected the sanction u/s 39 Arms Act.
xi) PW20 Insp. Sanjay Kumar : He is another witness who seized the motorcycle bearing no. DL-4S-DP-3107 in FIR no.1/10 P.S Rithala Metro Station.
SC No.75/14 State vs Jaswant Singh @ Vishal@ Pahari & ors (Page 11 of 36 )
D.O.D 19.11.2014 FIR no. 356/2009
P.S Keshav Puram
u/s 398/394/34 IPC alternatively 307/34 IPC and 25/27/54/59 Arms Act Medical and Scientific Evidence :
i) PW10 Dr. Prachi Arora : On 5.12.2009 , she had examined PW3 Rakesh Dwivedi vide MLC ExPW10/A at Bhagwan Mahavir Hospital.
ii) PW21 K.C Varshey, Deputy Director FSL Rohini : He on 24.2.2010 had examined the arms and ammunition of the present case and prepared detail report EXPX.
8 Thereafter, statement of accused persons u/s 313 Cr. PC were recorded. Accused persons denied all the allegations made against them. Accused Virender did not opt to lead any evidence in his defence. Accused Jaswant @ Vishal @ Pahari opted to lead evidence in his defence and has examined one Mohd Ahmad as DW1.
9 DW1 Mohd Ahmad deposed that on 4.12.2009, he had visited the accused Jaswant Singh at his house .when he was talking with Jaswant Singh some persons came there and asked him to come to the police station as he has been called by SHO. DW1 further deposed that accused Jaswant Singh was taken by them . DW1 was cross examined by ld Adll PP for SC No.75/14 State vs Jaswant Singh @ Vishal@ Pahari & ors (Page 12 of 36 ) D.O.D 19.11.2014 FIR no. 356/2009 P.S Keshav Puram u/s 398/394/34 IPC alternatively 307/34 IPC and 25/27/54/59 Arms Act state.
10 During the argument, Ld counsel for the accused Jaswant submitted that there is nothing to argue as such as PW2 Atul Jain, PW3 Rakesh Dwivedi and PW4 Vinod Shah, who were the only public and material witnesses, have turned hostile. By referring the testimony of other prosecution witnesses , he contended that there is nothing on record to connect the accused Jaswant @ Vishal @ Pahari with the present crime. He further submitted that accused Jaswant was lifted from his house and was implicated in the present case.
11 Accused Virender submitted that he has been dragged in the present case un-neccessarily and he has done nothing wrong. He submitted that he was not involved in the commission of crime and his name was got wrongly mentioned by the IO . He further submitted that co-accused is not known to me.
12 On the contrary, ld Addll PP for state submitted that prosecution has been able to establish the case beyond reasonable doubt . He has taken me to SC No.75/14 State vs Jaswant Singh @ Vishal@ Pahari & ors (Page 13 of 36 ) D.O.D 19.11.2014 FIR no. 356/2009 P.S Keshav Puram u/s 398/394/34 IPC alternatively 307/34 IPC and 25/27/54/59 Arms Act the testimonies of prosecution witnesses, particularly PW2 , PW3 and PW4 and submitted that these witnesses have very well narrated the case of prosecution and there is nothing to disbelieve them. He further submitted that accused Jaswant @ Vishal @ Pahari was arrested and apprehended from the spot , therefore, the identify of the accused stands established. Ld Addll PP for the state further submitted that during the cross examination of aforesaid witnesses by the state, it has come on the record that accused Jaswant @ Vishal @ Pahari was apprehended and arrested in the presence of PW3 and PW4. Accordingly, prosecution has been successful in bringing the guilt home as against the accused persons.
13 I have heard the ld Addl PP for the state and the ld counsel for the accused Jaswant @ Vishal @ Pahari and the accused Virender . I have also perused the record very carefully.
14 Both the accused persons are facing trial for the offences u/s 398/394/34 IPC in alternatively for the offence u/s 307/34 IPC. Accused Jaswant has been SC No.75/14 State vs Jaswant Singh @ Vishal@ Pahari & ors (Page 14 of 36 ) D.O.D 19.11.2014 FIR no. 356/2009 P.S Keshav Puram u/s 398/394/34 IPC alternatively 307/34 IPC and 25/27/54/59 Arms Act charged additionally for the offence u/s 25/27/54/59 Arms Act.
Section 394 reads as under:-
"If any person, in committing or in attempting to commit robbery, voluntarily causes hurt, such person, and any other person jointly concerned in committing or attempting to commit such robbery, 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."
15 Section 394 provides severe punishment when hurt is inflicted while committing robbery or attempt to commit robbery while under Section 390, the offender need not actually cause hurt to constitute the offence of robbery to be punished under Section 392. Section 394 is a special provision. The punishment provided for under Section 394 is more severe than that provided under the first part of Section 392.
398. Attempt to commit robbery or dacoity when armed with deadly weapon.-
"If, at the time of attempting to commit robbery or dacoity, the SC No.75/14 State vs Jaswant Singh @ Vishal@ Pahari & ors (Page 15 of 36 ) D.O.D 19.11.2014 FIR no. 356/2009 P.S Keshav Puram u/s 398/394/34 IPC alternatively 307/34 IPC and 25/27/54/59 Arms Act offender is armed with any deadly weapon, the imprisonment with which such offender shall be punished shall not be less than seven years."
16 First of all, take the case as against accused Virender. As far as accused Virender is concerned, I do find force in the argument of the accused Virender that evidence are not sufficient against him. Accused Virender is shown to have been named in the supplementary disclosure statement ExPW12/A of the accused Jaswant @ Vishal @ Pahari which was made on 09.12.2009. Initially, accused Virender was arrested in a case bearing FIR No.1/10 P.S Rithala Metro Station wherein he is shown to have confessed his involvement in the present case. Accused Virender was put to TIP proceedings ExPW18/D but the witness failed to identify him. It appears that accused Virender was put to trial on the basis of one circumstance that during the investigation Vinod Shah has identified him as per statement recorded u/s 161 CrPC. But before this court , none of the public witness namely Rakesh Dwivedi(PW3) and Vinod Shah(PW4) could identify him. That being so, identification during investigation before the IO has no value in the eyes of law.
SC No.75/14 State vs Jaswant Singh @ Vishal@ Pahari & ors (Page 16 of 36 )
D.O.D 19.11.2014 FIR no. 356/2009
P.S Keshav Puram
u/s 398/394/34 IPC alternatively 307/34 IPC and 25/27/54/59 Arms Act 17 Although , it is alleged that motorcycle and the weapon of offence , which was used in the commission of the present crime was recovered from the possession of the accused Virender but none of the public witness have identified the aforesaid motorcycle or the said weapon of offence allegedly recovered from the possession of the accused Vinod. Accused Virender is shown to have been arrested after two months of the incident. First disclosure statement of accused Jaswant @ Vishal @ Pahari ExPW8/B was recorded on 6.12.2009 wherein he had named his two associates as Amit and Rakesh and use of motorcycle bearing no.DL-7SL-4403. Subsequent disclosure statement of accused Jaswant @ Vishal @ Pahari dated 09.12.2009 ExPE12/A found mention the name of accused Virender and another accused Akash @ Rahul , who is still absconding. This has created doubt about the involvement of accused Virender in the commission of crime.
18 As stated herein above, Prosecution tried to prove its case against the accused Virender on the basis of disclosure statement of the accused Jaswant @ Vishal SC No.75/14 State vs Jaswant Singh @ Vishal@ Pahari & ors (Page 17 of 36 ) D.O.D 19.11.2014 FIR no. 356/2009 P.S Keshav Puram u/s 398/394/34 IPC alternatively 307/34 IPC and 25/27/54/59 Arms Act @ Pahari dated 09.12.2009 and the recovery of motorcycle and pistol in case FIR no.1/10 P.S Rithala Metro Station but prosecution has miserably failed to connect the aforesaid motorcycle and the arms with the present case . As far as recovery of alleged Arms is concerned from the possession of the accused Virender , for that another FIR bearing no.1/10 P.S Rithala Metro Station was registered . As far as pointing out memo ExPW18/B 1, at the instance of accused Virender is concerned , the place of the incident was already within the knowledge of the police. The recovery of three mobile phones from the house of accused Virender, which were seized vide seizure memo ExPW18/B 2, is also not the subject matter of the present case. Besides that, there is no evidence against the accused Virender. In the totality of the circumstances, the evidence are not sufficient against the accused Virender , therefore , he is entitled to be acquitted.
19 Now take the case as against accused Jaswant @ Vishal @ Pahari . As stated herein above , although prosecution has examined around twenty one witnesses but testimonies of PW2 Atul Jain, PW3 Rakesh SC No.75/14 State vs Jaswant Singh @ Vishal@ Pahari & ors (Page 18 of 36 ) D.O.D 19.11.2014 FIR no. 356/2009 P.S Keshav Puram u/s 398/394/34 IPC alternatively 307/34 IPC and 25/27/54/59 Arms Act Dwivedi and PW4 Vinod Shah is the most relevant and material one.
20 PW3 Rakesh Dwivedi , who is the maker of the FIR deposed that at the time of incident he was working as security guard in Parado Security Company . At that time, his duty was at Seven Seas Banquet Hall and his duty was to see the security of vehicles parked and to check the entry of unauthorized persons. At about 09:30-10:00 pm , he was standing at the main gate of Seven Seas Banquet Hall . Vinod Shah(PW4) ,who was also security guard, came running towards him and shouted that theft was being committed in a car parked in the parking lot. On hearing this, he and 3-4 other guards reached near the car. Two boys were keeping watch on motorcycle and were waiting for their companions to come with stolen articles. Conductor side front window pane of one Santro Car which was parked in the park was broken and one boy was stealing articles from Santro Car from(through) that broken window pane. PW3 further deposed that when they run towards the accused persons, two boys, who were on the motorcycle , started firing on them and also fled away from there. One boy, SC No.75/14 State vs Jaswant Singh @ Vishal@ Pahari & ors (Page 19 of 36 ) D.O.D 19.11.2014 FIR no. 356/2009 P.S Keshav Puram u/s 398/394/34 IPC alternatively 307/34 IPC and 25/27/54/59 Arms Act who was stealing articles from the Santro car, on hearing this attempted to come out from that car. All guards including him (PW3) tried to catch hold of that boy. He started scuffling with them. He further deposed that police recorded his statement Ex PW3/A. 21 PW3 turned hostile and he was cross examined by ld Addll PP for the state. During his cross examination, he admitted that police recorded his statement(Ex PW3/A.) and in that statement he had mentioned all the facts which he knew at that time. He further admitted that he along with Vinod Shah(PW4) tried to catch hold of those three boys then two boys had taken out their pistols and one boy had taken out knife and started threatening them to run away or they would finish them with shot. PW3 further admitted that despite the threat they were able to overpower one boy out of those boys and that boy had also fired at him and which passed brushing his left thumb but they did not release that accused boy. He further admitted that out of those two boys, who were on motorcycle before fleeing away from there and in attempt to save their companion, one of the boy had fired aiming them and SC No.75/14 State vs Jaswant Singh @ Vishal@ Pahari & ors (Page 20 of 36 ) D.O.D 19.11.2014 FIR no. 356/2009 P.S Keshav Puram u/s 398/394/34 IPC alternatively 307/34 IPC and 25/27/54/59 Arms Act crowd had collected there and crowd had given beatings to the accused who was apprehended at the spot. . PW3 further admitted that pistol from the accused, who was apprehended at the spot, was recovered and he was carrying pistol in his hand. All other suggestions put by ld Addll PP for state were denied by the PW3 Rakesh Dwivedi and he admitted his signatures on arrest memo ExPW3/B and personal search memo ExPW3/C pertaining to the accused Jaswant @ Vishal @ Pahari.
22 It appears that ld counsel for the accused persons has not cross examined PW3 on all points as deposed by him as he might be under the impression that witness has turned hostile. PW3 Rakesh Dwivedi was cross examined to the following extent only:-
" Police had recorded my statement and some contents out of such statement were read over to me. I had signed on two- three papers . Police had obtained my signatures at PS. Time I do not remember."
23 PW4 Vinod Shah is another security guard , who was posted at Seven Seas Banquet Hall . He deposed that Rakesh Dwivedi(PW3) was also working as guard and his duty was to keep watch on the parked vehicle and his( Vinod Shah PW4) duty was to get SC No.75/14 State vs Jaswant Singh @ Vishal@ Pahari & ors (Page 21 of 36 ) D.O.D 19.11.2014 FIR no. 356/2009 P.S Keshav Puram u/s 398/394/34 IPC alternatively 307/34 IPC and 25/27/54/59 Arms Act vehicle parked in the parking lot. He further deposed that all of a sudden , he heard the noise of gunshot and he rushed towards the place from where gunshot sound had come. When he reached there, many public persons were already there. One accused was apprehended at the spot and Rakesh Dwivedi(PW3) had suffered injuries in that incident. Both of them (Rakesh Dwivedi and the accused , who was apprehended at the spot ) were taken to the hospital by the police. Police had not made any inquiry from him. PW4 also turned hostile and he was cross examined by ld Addll PP for state on the lines of the case of the prosecution.
24 During cross examination by ld Addll PP for state , PW4 admitted that crowd had collected there and crowd had given beatings to the accused who had been apprehended at the spot. He further admitted that pistol was also recovered from the accused, who was apprehended at the spot and he was carrying the pistol in his hand. PW4 also identifies his thumb impression on the seizure memo ExPW4/B pertaining to the seizure of pistol and live cartridge and also on the arrest memo ExPW3/B and personal search memo ExPW3/C pertaining SC No.75/14 State vs Jaswant Singh @ Vishal@ Pahari & ors (Page 22 of 36 ) D.O.D 19.11.2014 FIR no. 356/2009 P.S Keshav Puram u/s 398/394/34 IPC alternatively 307/34 IPC and 25/27/54/59 Arms Act to the accused Jaswant @ Vishal @ Pahari.
25 PW4 Vinod Shah was not cross examined by the ld counsel for accused Jaswant @ Vishal @ Pahari despite opportunity.
26 PW2 Atul Jain is the owner of Santro Car bearing no. DL-3CAL -2002, who deposed that on 5.12.2009 he had gone to Seven Seas Banquet Hall , Lawrence road Industrial area for attending a marriage. He reached at the banquet hall at about 9:15 pm . He parked his vehicle in the parking and went inside the banquet hall . At about 10:30 pm, some persons came to him and told that firing is going on outside the banquet hall and the persons fired on his Santro Car due to which glasses have been broken. He came outside from the Banquet Hall with some other person and found that the glasses of the Santro Car were broken. PW2 also turned hostile and he was cross examined by ld Addll PP for state. During his cross examination, he admitted that one accused had been caught by security guard.
27 From the testimonies of PW2, PW3 and PW4, prosecution has been able to establish following SC No.75/14 State vs Jaswant Singh @ Vishal@ Pahari & ors (Page 23 of 36 ) D.O.D 19.11.2014 FIR no. 356/2009 P.S Keshav Puram u/s 398/394/34 IPC alternatively 307/34 IPC and 25/27/54/59 Arms Act circumstances against accused Jaswant @ Vishal @ Pahari beyond reasonable doubt as their testimonies have gone unchallenged and un -rebutted :
a) On 5.12.2009, PW2 Atul Jain had gone to Seven Seas Banquet Hall in his Santro Car bearing no. DL -3CAL-2002 to attend a marriage.
b) PW3 Rakesh Dwivedi and PW4 Vinod Shah were posted as security guards at the said Banquet Hall and duty of Rakesh Dwivedi was to keep watch on the parked vehicle and duty of Vinod Shah was to get the vehicle parked in the parking lot.
c) The glasses of the aforesaid Santro car were broken and an attempt was made to commit robbery , by three persons out of which two managed to run away and one boy was apprehended at the spot.
d) The person who had been apprehended at the spot was given beatings by the public.
e) Rakesh Dwivedi (PW3) sustained injuries on his left thumb due to the firing when he tried to catch hold the boy .
The boy who was apprehended , had fired on him which caused said injury.
f) Pistol was recovered from the accused who was apprehended at the spot as he was carrying pistol in his hand.
The person, who had been apprehended at the spot along
with PW3 Rakesh Dwivedi were removed to the Bhagwan
SC No.75/14 State vs Jaswant Singh @ Vishal@ Pahari & ors (Page 24 of 36 )
D.O.D 19.11.2014 FIR no. 356/2009
P.S Keshav Puram
u/s 398/394/34 IPC alternatively 307/34 IPC and 25/27/54/59 Arms Act Mahavir Hospital by police.
28 The moot question for consideration before this court is that whether the accused Jaswant @ Vishal @ Pahari was said boy, who had been apprehended at the spot or not ? If the answer is in affirmative then everything stands proved against him failing which he is also entitled to be acquitted.
29 The testimonies of PW2 PW3 and PW4 find support and corroboration from other prosecution witnesses . All the aforesaid witnesses have categorically stated that one of the culprit was apprehended at the spot and he was given beatings by the public and thereafter one of the culprit , who was apprehended at the spot, along with injured, was removed to the hospital by the police.
30 PW14 ASI Prem Singh was posted as Incharge PCR Van on 5.12.2009. He deposed that from control room information was received that at C 7/73, Lawrence road, Banquet Hall, three boys riding on motorcycle fired one round. He along with staff reached SC No.75/14 State vs Jaswant Singh @ Vishal@ Pahari & ors (Page 25 of 36 ) D.O.D 19.11.2014 FIR no. 356/2009 P.S Keshav Puram u/s 398/394/34 IPC alternatively 307/34 IPC and 25/27/54/59 Arms Act there and found complainant Rakesh Dwivedi in injured condition having bullet injury on his thumb. The public persons found apprehended the accused Jaswant @ Vishal @ Pahari , present in the court , who was found beaten by the public and it was also revealed that pistol found from the possession of the accused Jaswant @ Vishal @ Pahari was with another guard Vinod Shah(PW4) . ASI Prem Singh (PW14) further deposed that he immediately took the complainant(PW3) and accused Jaswant @ Vishal @ Pahari to Bhagwan Mahavir Hospital and got them admitted there. Even during cross examination , PW14 replied that he had received information from Head quarter at about 10:00 pm and he reached at the spot within two minutes and remained there for 5-10 minutes. He denied all other suggestions put by ld counsel for the accused Jaswant @ Vishal @ Pahari.
31 PW18 S.I Afaque Ahmad, who is the IO of the present case ,deposed that on receipt of DD no.22 A, he along with constable Narender Dhama (PW8) reached at the spot and came to know that injured and one of the accused have already been removed to the Bhagwan SC No.75/14 State vs Jaswant Singh @ Vishal@ Pahari & ors (Page 26 of 36 ) D.O.D 19.11.2014 FIR no. 356/2009 P.S Keshav Puram u/s 398/394/34 IPC alternatively 307/34 IPC and 25/27/54/59 Arms Act Mahavir Hospital by PCR Van and one Santro Car bearing no. DL-3CAL-2002 was parked there and left side glasses of window were found broken and pieces of the glasses were lying inside and outside the car. He further deposed that Vinod Shah (PW4) eye witness present there, handed over him one country made pistol recovered from the possession of the accused Jaswant @ Vishal @ Pahari.
32 Other police official , who were with S.I Afaque Ahmed namely HC Narender Dhama(PW8) have also supported and corroborated the story of the prosecution. HC Ajit Pal (PW9) deposed that on asking of the duty officer, he along with constable Jitender reached Seven Seas Banquet Hall where S.I Afaque Ahmed was present.
33 Dr. Prachi Arora (PW10), CMO Bhagwan Mahavir Hospital deposed that on 5.12.2009 at about 11:45 pm, she had examined Rakesh Dwivedi who was brought by PCR with alleged history of gunshot injury.
She prepared the MLC Ex PW10/A.
SC No.75/14 State vs Jaswant Singh @ Vishal@ Pahari & ors (Page 27 of 36 )
D.O.D 19.11.2014 FIR no. 356/2009
P.S Keshav Puram
u/s 398/394/34 IPC alternatively 307/34 IPC and 25/27/54/59 Arms Act 34 PW18 S.I Afaque Ahmed deposed that he recorded the statement of Rakesh Dwivedi in the hospital on the basis of which present FIR was registered and accused Jaswant @ Vishal @ Pahari was arrested vide arrest memo ExPW3/B. Personal search of the accused was carried out vide memo ExPW3/C . Arrest memo and the personal search memo pertaining to accused Jaswant @ Vishal @ Pahari are on record.
35 PW2 Atul Jain deposed that he came to know that security guard received injuries from firing and during his cross examination he replied that he also came to know that one accused had been caught by security guard. PW3 Rakesh Dwivedi during his cross examination by the state replied that one boy out of the three boys was apprehended from the spot . He also admitted his signatures on the arrest memo ExPW3/B and personal search memo ExPW3/C pertaining to accused Jaswant @ Vsishal @ Pahari. Similarly, PW4 Vinod Shah also deposed that one accused was apprehended at the spot and he (accused) along with Rakesh Dwivedi was taken to the hospital. He also admitted his thumb impression on aforesaid arrest memo ExPW3/B and personal search SC No.75/14 State vs Jaswant Singh @ Vishal@ Pahari & ors (Page 28 of 36 ) D.O.D 19.11.2014 FIR no. 356/2009 P.S Keshav Puram u/s 398/394/34 IPC alternatively 307/34 IPC and 25/27/54/59 Arms Act memo ExPW3/C. 36 It is well settled law that merely because a witness is declared as hostile, there is no need to reject his evidence in toto. The evidence of the hostile witness can be relied upon, at least to the extent, it supports the case of prosecution.
37 In Sathyanarayanan vs State , Inspector of Police, (2012) 12 SCC 627, it was held as under " It is settled law that corroborated part of evidence of hostile witness regarding commission of offence is admissible. The fact that the witness was declared hostile at the instance of the Public Prosecutor and he was allowed to cross examine the witness furnishes no justification for rejecting en bloc the evidence of the witness. However, the court has to be very careful, as prima facie, a witness who makes different statements at different times, has no regard for the truth. His evidence has to be read and considered as a whole with a view to find out whether any weight should be attached to it. The court should be slow to act on the testimony of such a witness, normally, it should look for corroboration with other witnesses. Merely because a witness deviates from his statement made in the FIR, his evidence cannot be held to be totally unreliable. To make it clear that evidence of hostile witness can be relied upon at least up to the extent, he supported the case of prosecution. The evidence of a person does not become effaced from the record merely because SC No.75/14 State vs Jaswant Singh @ Vishal@ Pahari & ors (Page 29 of 36 ) D.O.D 19.11.2014 FIR no. 356/2009 P.S Keshav Puram u/s 398/394/34 IPC alternatively 307/34 IPC and 25/27/54/59 Arms Act he has turned hostile and his deposition must be examined more cautiously to find out as to what extent he has supported the case of the prosecution".
38 In the present case, it is true that PW2 Atul Jain, PW3 Rakesh Dwivedi and PW4 Vinod Shah turned hostile on the identity of accused but they have explained the mode and manner in which the offence was committed . PW3 and PW4 have further explained the role of accused Jaswant @ Vishal @ Pahari who was apprehended at the spot and was given beatings by the public .
39 The testimony of DW1 Mohd Ahmad would not help the accused much as he is known to the accused and is on visiting terms with him. During his cross examination by the state, DW1 replied that he had not entered into the house of the accused and he was waiting outside and he identify those persons as police officials, from their shoes who had taken accused to police station. According to DW1 even the family members of the accused came to know about the same. There is nothing on record which could show that any complaint was made either by DW1 or family members of the accused Jaswant SC No.75/14 State vs Jaswant Singh @ Vishal@ Pahari & ors (Page 30 of 36 ) D.O.D 19.11.2014 FIR no. 356/2009 P.S Keshav Puram u/s 398/394/34 IPC alternatively 307/34 IPC and 25/27/54/59 Arms Act to know as to why accused was being called allegedly by the SHO.
40 Further, DW1 Mohd Ahmad is referring that accused Jaswant @ Vishal @ Pahari was taken to the police station on 4.12.2009 at about 4-5 pm . Even during his cross examination he replied that he had visited the house of Jaswant on 4.12.2009. Not only that , during the cross examination of PW18 S.I Afaque Ahmed one suggestion was given that accused Jaswant was lifted from his house on 4.12.2009. The incident is of dated 5.12.2009 . It is not the case of the accused that no such incident took place which has already been established . It is highly unbelievable that accused Jaswant would be lifted by the police one day prior to the incident and then he would be implicated on the next day i.e in the present case. This all has falsified the claim of DW1.
41 Moreover , as per the arrest memo ExPW3/B , accused Jaswant has been arrested on 6.12.2009 at about 2:45 am and his wife Pooja was informed about the arrest . The arrest memo also SC No.75/14 State vs Jaswant Singh @ Vishal@ Pahari & ors (Page 31 of 36 ) D.O.D 19.11.2014 FIR no. 356/2009 P.S Keshav Puram u/s 398/394/34 IPC alternatively 307/34 IPC and 25/27/54/59 Arms Act witnessed by PW3 Rakesh Dwivedi as Rakesh Dwivedi has admitted his signatures at point B. Even the personal search memo ExPW3/C dated 6.12.2009 bears the signatures of Rakesh Dwivedi at point A. 42 Although , PW18 S.I Afaque Ahmed and other police officials who were with him during investigation namely PW8 HC Narender Dhama and PW9 HC Ajit Pal, were cross examined by ld counsel for the accused Jaswant @ Vishal @ Pahari but even during cross examination nothing could be elicited or extracted to disbelieve their version particularly regarding the arrest of accused Jaswant @ Vishal @ Pahari as deposed by them.
43 The prosecution has been able to establish the ingredients of the offences u/s 394/398 IPC against the accused Jaswant @ Vishal @ Pahari. Here it is pertinent to mention that accused Jaswant @ Vishal @ Pahari was charged for the offence u/s 307/34 IPC alternatively. The punishment for the offence u/s 394 /398 carries upto life imprisonment. That being so there is no need to convict the accused Jaswant @ Vishal SC No.75/14 State vs Jaswant Singh @ Vishal@ Pahari & ors (Page 32 of 36 ) D.O.D 19.11.2014 FIR no. 356/2009 P.S Keshav Puram u/s 398/394/34 IPC alternatively 307/34 IPC and 25/27/54/59 Arms Act @ Pahari separately for the offence u/s 307 IPC as ingredients of 394/398 stands proved.
44 Another charge against the accused Jaswant @ Vishal @ Pahari is for the offence u/s 25/27/54/59 Arms Act . PW2 Atul Jain deposed that security guard received injury from firing . PW3 Rakesh Dwivedi during his cross examination by the state has admitted that one person who was apprehended at the spot (accused Jaswant @ Vishal @ Pahari) was given beatings and pistol was recovered from his possession . He further replied that he was carrying the pistol in his hand. PW4 Vinod Shah also deposed that Rakesh Dwivedi has suffered injury due to the incident. During his cross examination by the state PW3 also admitted that pistol was recovered from the accused , who was apprehended at the spot and he was carrying pistol in his hand. Aforesaid testimonies of PW2 , PW3 and PW4 as discussed herein above, have gone un-rebutted and unchallenged.
45 PW 14 ASI Prem Singh who is shown to have reached at the spot immediately after the incident SC No.75/14 State vs Jaswant Singh @ Vishal@ Pahari & ors (Page 33 of 36 ) D.O.D 19.11.2014 FIR no. 356/2009 P.S Keshav Puram u/s 398/394/34 IPC alternatively 307/34 IPC and 25/27/54/59 Arms Act deposed that on inquiry it was revealed that pistol was found from the possession of accused Jaswant and it was with another guard Vinod Shah(PW4) . PW7 S.I Matadin who was posted as Incharge Crime Mobile team deposed that when he visited the spot along with the photographer he had noticed that one live cartridges and one empty shell was lying at a little distance from each other on the road between Santro and nearby wall of temple. He prepared the report ExPW7/A which indicates recovery of said ammunition.
46 PW18 S.I Afaque Ahmed deposed that Vinod Shah (PW4) eye witness was present at the spot and he handed over him one country made pistol recovered from the accused. He checked the pistol and found one live cartridges. He prepared the sketch of pistol and live cartridges ExPW4/C and same was measured and it was sealed with the seal of AA and seized vide seizure memo ExPW4/D . He further deposed that crime team inspected the spot and incharge crime team(PW7) handed over one live cartridge and one empty cartridge recovered from the spot . PW18 SI Afaque Ahmed identified the pistol and cartridges as Ex P2 and Ex P3. PW18 has not been cross examined about the recovery of arms and ammunition SC No.75/14 State vs Jaswant Singh @ Vishal@ Pahari & ors (Page 34 of 36 ) D.O.D 19.11.2014 FIR no. 356/2009 P.S Keshav Puram u/s 398/394/34 IPC alternatively 307/34 IPC and 25/27/54/59 Arms Act from the possession of the accused. Therefore his testimony cannot be rejected qua recovery of the same.
47 PW11 HC Jai Prakash who was posted as MHC(M) at PS Keshav puram deposed that on 5.12.2009, S.I Afaque Ahmed (PW18) has deposited two sealed pullandas along with FSL Form duly sealed with the seal of AA and entry was made in register no.19 at serial no. 2533 ExPW11/B. He further deposed that on 24.2.2010, aforesaid exhibits were sent to FSL through constable Ranbir (PW6) and same were deposited vide RC ExPW11/C . PW 11 has not been cross examined to dislodge the aforesaid entries. Copy of the aforesaid register no.19 at serial no.2533 ExPW11/B is on the record which indicate that aforesaid arms and ammunition was deposited with MHC(M).
48 Scientific evidence also lends support to the case of prosecution. Sh. K. C. Varshney(PW21), ballistics experts, had examined the arms and ammunition recovered from the possession of accused Jaswant and gave report Ex PX. Accused has not disputed the said report as PW21 was not cross examined despite opportunity. As per the report pistol was found in working SC No.75/14 State vs Jaswant Singh @ Vishal@ Pahari & ors (Page 35 of 36 ) D.O.D 19.11.2014 FIR no. 356/2009 P.S Keshav Puram u/s 398/394/34 IPC alternatively 307/34 IPC and 25/27/54/59 Arms Act order. It was also opined that cartridges were firearm and empty cartridges have been fired through said pistol.
49 Mr. Romil, then Addl. DCP (PW5) had accorded the sanction under section 39 Arms Act, which is requisite to prosecute the accused for the offences under Arms Act as indicated. He proved the sanction as Ex PW5/B. 50 In the light of aforesaid discussion, Court is of the view that prosecution miserably failed to prove its case as against the accused Virender for charges u/s 394/398/34 alternatively for the offence u/s 307/34 IPC, hence, he stands acquitted. However, prosecution has been successful in establishing the guilt of the accused Jaswant @ Vishal @ Pahari in respect of offences u/s 394/398 IPC and 25/27/54/59 Arms Act . Accused Jaswant @ Vishal @ Pahari stands convicted for offences u/s 394/398 IPC and 25/27/54/59 Arms Act.
51 File be consigned to record room.
Announced in the open (Rajesh Kumar Goel) Court today i.e 19.11.2014 ASJ-5, North Rohini Court SC No.75/14 State vs Jaswant Singh @ Vishal@ Pahari & ors (Page 36 of 36 )