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State vs Ashish Kapoor And Ors on 20 March, 2024

                               State Vs. Ashish Kapoor & ors.
     IN THE COURT OF SH. ALOK SHUKLA, ADDITIONAL
      SESSION JUDGE-02, SPECIAL JUDGE (NDPS), EAST
         DISTRICT, KARKARDOOMA COURT, DELHI

CNR NO. DLET01-010271-2019
SC No. 3835/2019
State Vs. Ashish Kapoor & Ors.
FIR no. 598/2014
PS Preet Vihar
U/s. 307/120B IPC & 25/27 Arms Act

In the matter of: -
State
                                         Versus

1. Ashish Kapoor
S/o. Ramesh Chand Kapoor
R/o. F-1, 82-AA, 3rd Floor, Mangal Bazar,
Laxmi Nagar, Delhi 110092.

2. Devender
S/o. Rohtash
R/o. H. No. 61-L, Gali no. 5,
East, Laxmi Market, Delhi 110092.

3. Asif Malik
W/o. Alla Din
R/o. H. No. 39, Aram Park,
Gali no. 4, Delhi 110031.

Date of Institution                            :                 03.05.2019
Date of reserve for order                      :                 23.02.2024
Date of decision                               :                 20.03.2024

                         JUDGMENT

1. The present judgment is the culmination of the criminal proceedings initiated against the accused persons Ashish Kapoor, Devender and Asif Malik in reference to the chargesheet filed against them under Section 307/120B Indian Penal Code (IPC, in short) and 25/27 Arms Act based upon the First Information Report lodged on the SC No. 3835/19 FIR No.598/2014 PS Preet Vihar Page 1 of 29 State Vs. Ashish Kapoor & ors.

written complaint of complainant Rahul.

2. The case of the prosecution in brief is that on 21.09.2014 at about 22:55 Hrs., a PCR call was received vide DD no. 33A that a man has been shot at H. No. 40, Laxmi Market, Gali no. 5, Guru Angad Nagar and on 22.09.2014. PCR call was entrusted to SI Yogesh Kumar, who alongwith Ct. Kanak reached H. No. 40, Laxmi Market, Gali no. 5, Guru Angad Nagar where he found two PCR Van with staff and also learnt that the injured was taken to Dr. Hedgewar Hospital, Karkardooma. SI Yogesh then reached Dr. Hedgewar Hospital and obtained MLC No. 3304/14 of Raja Ram on which alleged H/o gun injury was mentioned and the injured was declared to be "unfit for statement". No eye-witness of the incident was found in the hospital and SI Yogesh once again reached the place of incident, where he found Rahul @ Bablu, who lodged a report with the police stating that his elder brother Rajaram, who is serving Life imprisonment was granted parole and in celebration of that his friend i.e. accused Ashish arranged for a party at the house of accused Devender at Laxmi Nagar. It is also alleged that as the friends of Rajaram were not good persons as they all are criminals, complainant with his friend Irfan also came to the house of accused Devender, where accused Asif Malik also arrived. It is alleged that in the house of accused Devender, all persons were sitting and taking liquor and eating food but suddenly accused Ashish took out pistol from his trouser and started waiving it. All of a sudden Ashish fired two rounds at Rajaram. Thereafter, accused Ashish was overpowered then and there and police was informed at 100 number by Deepak @ Kale and injured was taken to the hospital by Irfan in Deepak's Car. Thereafter, present case FIR no. 598/2014 at PS Preet Vihar under Section 307/120B IPC and 27/25 Arms Act was registered.

State Vs. Ashish Kapoor & ors.

CHARGES AGAINST THE ACCUSED PERSONS

3. Vide order dated 24.09.2021, charges for the offences under Sections 120B, 307/34 IPC framed against all accused persons namely Devender, Asif Malik and Ashish Kapoor. Additionally Accused Devender and Accused Asif Malik have been charged under Section 25 and 27 of Arms Act and Accused Ashish Kapoor has been charged under Section 27 of Arms Act. Accused persons pleaded not guilty and claimed trial.

4. Twelve prosecution witnesses were examined during the course of trial. On 25.09.2023, accused persons admitted the following documents under section 294 of the Cr.P.C.:-

(i) FIR no. 598/2014 PS Preet Vihar Ex.AD-1.

(ii) DD no. 33A Ex.AD-2.

(iii) Testimony of Dr. V.K. Jain and letter dt. 22.09.2014 Ex. AD-3.

(iv) FSL report bearing no. 2018/F-11330 dt. 31.07.2020 Ex. AD-4.

(v) Sanction under Section 39 Arms Act dt. 05.04.2021 Ex. AD-5.

(vi) Acknowledgement receipt from FSL dt. 06.12.2018 and Road Certificate no. 113/21/18 Ex.AD-6 (Colly) and forwarding letter (5 pages)

(vii) Testimony of photographer of mobile crime team, east district and photograph of the spot Ex.AD-7 (colly 18 photographs).

(viii) Testimony of PW Insp. Sanjeev Kumar Verma and Ct.

Maunveer.

PROSECUTION WITNESSES

5. PW-1 Dr. Rabindra Kumar deposed that on 21.09.2014 at about 10.51 pm, he was posted at Dr. Hedgewar Arogya Sansthan, Karkardooma as CMO and on that day, he examined one patient namely SC No. 3835/19 FIR No.598/2014 PS Preet Vihar Page 3 of 29 State Vs. Ashish Kapoor & ors.

Rajaram s/o Sh. Dhanna Ram aged about 23 years, male with alleged history of gunshot injury and at the time of examination his pulse rate was 90 per minutes and BP 80/60 and on local examination, he found one gunshot injury wound of size 1.5 cm x 1.5 cm present on the lower sternum and he gave him primary treatment and referred him to SR Surgery and SR anesthesia for detailed examination and further treatment vide MLC Ex. PW1/A.

6. PW-2 Rahul deposed that on 21.09.2014, he received a phone call that his brother Rajaram who was released from jail on parole for one month was shot by some person. He denied having witnessed the incident. He further deposed that he took his injured brother Raja Ram to Hedgewar Hospital where he was treated. The Witness admitted his signature on complaint Ex. PW2/A at point A, however he stated that his signatures were obtained on some papers and his statement was not recorded by the police. As PW2 resiled from his statement, Ld. Addl. PP cross-examined the witness.

7. In his cross-examination, the witness denied the suggestion that on 21.09.2014 in the evening hours Ashish, friend of Rajaram called PW2 who requested him to attend a party at the house of Devender in East Laxmi Market, but Rajaram initially refused on direction of witness. He denied the suggestion that Rajaram insisted and went to the house of Devender along with Irfan and PW2 also accompanied them. He denied the suggestion that at about 7.30 pm, he alongwith Rajaram and Irfan reached at the house of Devender bearing H.No. 61L, Gali No.5, East Laxmi Market, where Deepak @ Kale an old friend of Rajaram also met them and they went to the house of Devender, where Devender was present and Asif and Ashish also reached within half an hour. He denied the suggestion that while they were taking meal Ashish had taken out a SC No. 3835/19 FIR No.598/2014 PS Preet Vihar Page 4 of 29 State Vs. Ashish Kapoor & ors.

pistol and fired at Rajaram twice at which they apprehended Ashish. He denied the suggestion that the bullet fired by Ashish hit Rajaran on the chest and thigh. He denied the suggestion that accused Ashish present in the court caused bullet injuries to his brother. He denied the suggestion that he stated these facts to the police and made complaint Ex.PW2/A to the police which bears his signature at point A on being confronted with portion A to A of statement Ex. PW2/A where these facts are recorded. He denied the suggestion that they handed over the accused Ashish to the police official on being confronted with portion B to B of statement Ex. PW2/A where it is so recorded. He denied the suggestion that he signed his statement Ex. PW2/A after it was recorded. The witness volunteered that police obtained his signatures on blank papers and that he knew the accused persons and they were not involved in the incident of this case. He denied the suggestion that the accused persons were not involved in the occurrence or that accused Ashish fired bullets at his brother. He denied the suggestion that while Ashish Kapoor was apprehend by them, accused Ashish Kapoor gave pistol to accused Asif Malik. He further denied the suggestion that they were trying to apprehend accused Ashif Malik, accused Devender took out a knife and both the accused persons fled from the spot. He denied the suggestion that IO prepared site plan and seized empty cartridge cases from the spot

8. PW-3 Rajaram deposed that in the year 2014, he was residing in H. No.399, Brijpuri, Bhajanpura, Delhi and working as an electrician. He further deposed that he was serving life sentence in case FIR No.254/2008, PS Mandawali at that time and on 21.09.2014, he came out from the jail on parole for one month. He further deposed that on that day, his friend Deepak Kale called him at the house of accused Devender @ Babloo as a party was organized by them on the occasion of him SC No. 3835/19 FIR No.598/2014 PS Preet Vihar Page 5 of 29 State Vs. Ashish Kapoor & ors.

being released on parole. He further deposed that Rahul, his brother had dropped him at the house of Devender @ Babloo and his friends i.e. accused Ashish Kapoor, Devender @ Babloo and Asif Malik and some other persons were present in the party. It was during night hours at the house of Devender @ Babloo at East Laxmi Market. He further deposed that suddenly, two persons wearing helmets came into the house of Devender @ Babloo and one of them had a pistol, who shot him with the pistol and bullet hit him on his chest and he fell down on the floor becoming unconscious and when he regained consciousness, he found himself at Max Hospital Patparganj. He further deposed that he did not see the faces of person who came and fired upon him as they were wearing helmets and he identified Devender @ Babloo, Ashish Kapoor and Asif Malik as his friends, who were present in the Court. As PW3 resiled from his statement, Ld. Addl. PP cross-examined the witness.

9. PW3 denied the suggestion that on 21.09.2014 in the evening hours when he was at the house of Devender @ Babloo and eating food, Ashish Kapoor took out a pistol and fired upon him. He denied the suggestion that accused Ashish Kapoor who was present in the court on that day was the person, who shot him at the instance of other accused persons Devender @ Babloo and Asif Malik. He denied the suggestion that he stated these facts to the police in his statement Ex.PW3/A on being confronted with portion A to A of statement Ex. PW3/A where these facts are recorded. He denied the suggestion that he had told the police that accused Ashish Kapoor had grudge against him as he was under the impression that his girlfriend Kulvinder had a relationship with him or that previously also accused Ashish Kapoor had altercation with him on this account. He denied the suggestion that he is deposing falsely to save the accused persons as he has been won over by them.

State Vs. Ashish Kapoor & ors.

10. PW-4 Irfan Ali deposed that he was the friend of Rahul Kumar, brother of Rajaram and on 21.09.2014, he along with Rahul Kumar and Rajaram had gone to the house of friend of Rajaram in East Laxmi Market, Delhi at about 9.00 pm and Rahul Kumar told him that a party was hosted because his brother Rajaram had come out of the jail on parole and asked him to come with him and he also sat in the party. He further deposed that he along with Rahul left the party at after about an hour. When he along with Rahul reached the house of Rahul, somebody called Rahul and told him that his brother has been shot in the party and taken to Hedgewar hospital. He further deposed that he alongwith Rahul went to Hedgwar Hospital from where they took Rajaram to Max Hospital Patparganj, where he was treated. He deposed that his signatures were taken on some papers by the police but he did not read those papers. As PW4 resiled from his statement, Ld. Addl. PP cross- examined the witness.

11. The witness denied the suggestion that he told the police that Rahul had informed him that there was previous enmity between Rajaram and his friends. He denied the suggestion that he had told the police that he had gone to the house of Devender @ Babloo, where all persons were consuming liquor and at about 10.30 pm, accused Asif Malik took out a pistol and gave it to accused Ashish Kapoor who then fired twice upon Rajaram. He further denied the suggestion that he told the police that when they tried to apprehend accused Ashish Kapoor, he handed over the pistol to Asif Malik and when they tried to apprehend Asif Malik, accused Devender @ Babloo took out a large knife and pointed the same towards them and fled from the spot with accused Asif Malik. He denied the suggestion that they managed to apprehend accused Ashish Kapoor, whom they handed over to the police SC No. 3835/19 FIR No.598/2014 PS Preet Vihar Page 7 of 29 State Vs. Ashish Kapoor & ors.

12. PW-5 Retd. ASI Jai Lal deposed that he was posted as ASI in the PCR unit of Delhi police and In-charge of PCR Van R-40 on 21.09.2014 with Ct. Rajesh being deputed as the driver of the van and on receiving a call at about 11 pm on 21.09.2014 regarding an incident of firing at East Laxmi Market, Gali No. 5, they both reached at East Laxmi Market but did not find the injured who had been taken to the hospital. He further deposed that two persons namely Deepak and Rahul had caught hold of the assailant accused Ashish S/o Ramesh at the spot and he took custody of accused Ashish and handed him over to IO/SI Yogesh Kumar. As PW5 resiled from his statement, Ld. Addl. PP cross-examined the witness.

13. The witness admitted that IO had recorded his statement. He further admitted that his statement dated 22.09.2014 Ex. PW5/PX1 was recorded by SI Yogesh Kumar. Ld. Prosecutor pointed towards accused Ashish and asked the witness whether he was the assailant named Ashish apprehended by him after being handed over by Rahul and Deepak on 21.09.2014. Witness stated that he is not sure. PW5 further stated that the person shown to him as Ashish might have been the person handed over to him by Rahul and Deepak on 21.09.2014. PW5 volunteered that the incident is of the year 2014 and he retired in 2018, therefore, he is unable to recall the incident in full detail due to the lapse of time.

14. PW-6 Deepak @ Kaley deposed that in the year 2014, he was called by Raja Ram to the house of accused Devender @ Bablu for party for his release on parole from the jail and when he reached the house of accused Devender @ Bablu in East Laxmi Nagar, he saw Raja Ram in injured condition and blood was oozing out from his injuries. He further deposed that Raja Ram told him that someone hit him with bullet. He further deposed that he took Raja Ram to hospital Max Balaji, Madhu SC No. 3835/19 FIR No.598/2014 PS Preet Vihar Page 8 of 29 State Vs. Ashish Kapoor & ors.

Vihar, where he was admitted in the hospital and got treated there and police officials came at the hospital and enquired from him, however, they did not record his statement. As PW4 resiled from his statement, Ld. Addl. PP cross-examined the witness.

15. The witness denied the suggestion that he cannot say whether the date of incident was of 21.09.2014. He reached at the house of Devender @ Bablu at about 5.30 pm. PW-6 stated that he was accused of many criminal cases, however, only four criminal matters are pending against him. He admitted that Raja Ram came outside from Tihar Jail on parole and that he was sentenced to life imprisonment. PW-6 stated that he cannot say whether accused Ashish Kapoor was having enmity with Raja Ram. He stated that he could not reach the party therefore; he cannot say who all were present in the scheduled party. He further deposed that he cannot say who inflicted injuries or shot Raja Ram. PW-6 denied the suggestion that he was present at the spot when Ashish Kapoor took out country made pistol and fired on Raja Ram, due to which he received injuries on chest and thigh. He further denied that he called at 100 number. He denied having given the statement under section 161 Cr.P.C. Mark PW6/PXI recorded by IO Sanjeev Kumar Verma. did not make the statement u/s 161 Cr.P.C. which is shown to him. The said statement is denoted Mark PW6/PX1. PW-6 suggested that he had stated to the IO in the said statement that he saw Ashish Kapoor shot Raja Ram at his chest and thigh or that he made call at 100 number. PW6 stated that his mobile number is 9540207871 and he is using the mobile phone for the last 6 years. He denied that accused persons were present at the spot. He further deposed that he cannot identity the weapon through which Raja Ram was shot as he was not present at the spot when the alleged incident took place.

State Vs. Ashish Kapoor & ors.

16. PW7 HC Kapil Chauhan deposed that on 21.09.2014, he was posted at PCR unit Romeo-30 as driver and on that day, he was posted at the said PCR with HC Bhagwat Swaroop and at about 11.00 pm, he reached at Gali no.5, East Laxmi Nagar on receiving call and they reached at the spot, where it was revealed that injured has been transferred to the hospital and Rahul and Deepak handed over one person namely accused Ashish stating that he shot the injured and thereafter, he took the custody of accused Ashish and handed over the said person to the IO for necessary action when he reached at the spot and he was relieved. He further deposed that on the same day, IO recorded his statement at the PS. He identified accused Ashish in the court. During his cross-examination, PW7 deposed that he remained at spot for about 10 minutes and thereafter IO and one constable came at the spot.

17. PW-8 SI Kanak Kumar Yadav deposed that previously on 21.09.2014, he was posted as Constable at PS Preet Vihar and on that day at about 11.00 pm, SI Yogesh received a PCR call regarding firing and he alongwith SI Yogesh went to the spot i.e. No. 61-L, Gali No. 5, East Laxmi Market, Preet Vihar, where two PCR Vans were already present there. He further deposed that he came to know at the spot that the injured had been shifted to the hospital and SI Yogesh went to the hospital leaving him and Beat Constable at the spot. He further deposed that SI Yogesh returned back to the spot from the hospital at about 12.00 midnight and he collected two empty cartridges and kept the said empty cartridges in a plastic transparent box, converted it into a pulanda and sealed the same with the seal of YK Ex. PW8/A. PW8 further deposed that IO arrested accused persons namely Devender, Ashish and Asif but he did not remember the place of their arrest. He further deposed that one knife was recovered from accused Devender and IO prepared seizure SC No. 3835/19 FIR No.598/2014 PS Preet Vihar Page 10 of 29 State Vs. Ashish Kapoor & ors.

memo of knife Ex.PW8/B and prepared sketch of knife Ex. PW8/E. He further deposed that accused Ashish was personally searched and one GSR and body control sample was recovered, which was seized vide seizure memo Ex. PW8/C. He further deposed that thereafter, from the possession of accused Asif, one country made pistol alongwith three live cartridges were recovered, which was seized vide seizure memo Ex. PW8/D, sketch of the pistol and live cartridges were prepared vide memo Ex. PW8/F and sketch of empty cartridges and bullet led was prepared vide memo Ex. PW8/G. He further deposed that disclosure statement of accused Devender was recorded vide memo Ex. PW8/H, disclosure statement of accused Asif was recorded vide memo Ex. PW8/I and disclosure statement of accused Ashish was recorded vide memo Ex. PW8/J. He further deposed that personal search memo of accused Asif vide memo Ex. PW8/K, personal search memo of accused Devender vide memo Ex. PW8/L and personal search memo of accused Ashish vide memo Ex. PW8/M were prepared and arrest memo of accused Ashish Ex. PW8/N, arrest memo of accused Devender Ex. PW8/O and arrest memo of accused Asif Ex. PW8/P were also prepared. PW8 further deposed that thereafter, he was sent to the police station by SI Yogesh alongwith rukka for registration of FIR and he came back to the spot after registration of FIR with copy of FIR and original rukka and IO recorded his statement. He further deposed that thereafter, he came back to the police station with SI Yogesh. He identified accused persons in the court. During his cross-examination PW-8 deposed that when he reached the spot, accused persons were not present at the spot. He deposed that he never visited the hospital.

18. PW-9 HC Rajesh Kumar deposed that on 21.09.2014, he was posted at the PCR unit in Van R 40 as driver and the In-charge was ASI SC No. 3835/19 FIR No.598/2014 PS Preet Vihar Page 11 of 29 State Vs. Ashish Kapoor & ors.

Jaidayal and at about 11 pm on the said date, they received a call regarding an incident of firing at East Laxmi Market, Gali No. 5. He further deposed that when they reached at spot, the injured had already been taken to the hospital and they found Rahul and Deepak, who were the brothers of the injured present at the spot and they had already apprehended the purported assailant namely Ashish, who had fired on their brother and they handed over accused Ashish to IO/SI Yogesh Kumar, when he reached the spot.

19. PW-10 Insp. Yogesh Kumar deposed that on 21.09.2014, he was posted as Sub Inspector in police station Preet Vihar and on that day he received PCR call vide DD No. 33A at about 11.00 pm and after receiving call, he alongwith Ct. Kanak reached at spot i.e. H. No. 61L, East Laxmi Market, Gali No. 5, where injured was already taken to the hospital, so he reached at the Headgewar Hospital leaving Ct. Kanak and beat staff at the place of incident. He further deposed that after his reaching at the hospital and he obtained MLC (Ex. PW1/A) of injured Rajaram, where doctor opined that injured Rajaram was unfit for giving statement, so he returned back to the spot again, where brother of injured Rahul met him and he recorded the statement of Rahul (Ex. PW2/A).

20. PW10 further deposed that Crime team was called at the spot for inspection and at the spot, two empty cartridges and one bullet led were recovered, which were taken into the police possession and seized vide seizure memo Ex. PW8/A and sketch of empty cartridges and bullet (Ex. PW8/G) were prepared. He further deposed that complainant Rahul and PCR staff handed over him one of the accused Ashish Kapoor and thereafter, he prepared the Rukka (Ex. PW10/A) and sent the same through Ct. Kanak to police station for registration of FIR. He further deposed that thereafter, he prepared the site plan (Ex. PW10/B) at the SC No. 3835/19 FIR No.598/2014 PS Preet Vihar Page 12 of 29 State Vs. Ashish Kapoor & ors.

instance of the complainant and also prepared another site plan (Ex. PW10/C) regarding recovery of bullet and empty cartridges. He further deposed that he made interrogation from accused Ashish and recorded disclosure statement (Ex. PW8/J) and arrested accused Ashish vide arrest memo Ex. PW8/N, prepared his personal search vide memo Ex. PW8/M. He further deposed that GSR and body control sample were taken, which was seized vide seizure memo Ex. PW8/C. He further that during investigation, he received an information about other remaining accused Asif Malik and accused Devender, who were present in Patparganj Area and after receiving the information, he alongwith Ct. Kanak and Sonu reached near Makkar Hospital, Patparganj Road and apprehended, both accused persons namely Asif and accused Devender in front of Makkar Hospital and one knife was recovered from the possession of accused Devender, sketch of which Ex. PW8/E of the recovered knife was prepared and the same was taken into the police possession vide seizure memo Ex. PW8/B. He further deposed that one pistol and three live rounds were recovered from the possession of accused Asif Malik, sketch of which was prepared Ex. PW8/F and the same was taken into the police possession vide seizure memo Ex. PW8/A. He further deposed that accused Devender and Asif Malik made their disclosure statements Ex. PW8/X and Ex. PW8/I. He further deposed that personal search memo of accused Devender Ex. PW8/L was prepared and he was arrested vide memo Ex. PW8/O. He further deposed that personal search memo of accused Asif Malik Ex. PW8/K was also prepared and he was also arrested vide memo Ex. PW8/P.

21. PW10 further deposed that on 23.09.2014, he visited Max Hospital for recording the statement of injured Rajaram, where doctor handed over him one sealed parcel containing the bullet led recovered SC No. 3835/19 FIR No.598/2014 PS Preet Vihar Page 13 of 29 State Vs. Ashish Kapoor & ors.

from the body of Rajaram alongwith the sample seal, which were taken in the police possession vide seizure memo Ex. PW10/D. He identified the accused persons in the Court. He also identified the case property i.e. three empty cartridges and three bullets (Ex. P1 to P3 and P4 to P6) and pistol (Ex. P7).

22. PW11 HC Sonu deposed that on 21.09.2014, he was posted at PS Preet Vihar as a constable and on 21.09.2014, one incident took place regarding firing at East Laxmi Market, Preet Vihar, Delhi. He further deposed that he reached at the spot, where he came to know that the injured had already been taken to hospital by the public persons and accused persons ran away from the spot. He further deposed that during investigation, he came to know through one informer that two accused persons namely Devender and Asif were present in Patparganj area and after receiving the information, he alongwith IO and one constable Kanak reached near Makkad Hospital, Patparganj and apprehended both the accused persons Devender and Asif in front of Makkad Hospital and one pistol and three live rounds were recovered from the possession of accused Asif Malik, sketch of which was prepared Ex. PW8/F. He further deposed that one knife was recovered which was taken into the police possession vide seizure memo Ex. PW8/B, sketch of which Ex.PW8/E was prepared. He further deposed that seizure memo of pistol recovered from accused Asif Ex. PW8/D was prepared. He deposed that accused Devender and Asif Malik made disclosure statements Ex.PW8/H and Ex. PW8/I. He further deposed that their personal search memos Ex. PW8/L and Ex.PW8/K were also prepared and they were arrested vide memo Ex.PW8/O and Ex.PW8/P. He identified accused persons in the court. During his cross-examination, PW-11 deposed that all the accused persons were present at the spot. He further deposed that all interrogation SC No. 3835/19 FIR No.598/2014 PS Preet Vihar Page 14 of 29 State Vs. Ashish Kapoor & ors.

and written proceedings were done by the IO at the police station.

23. PW12 SI Ravi Kant deposed that on 22.09.2014, he received message from Control Room to reach at the spot i.e. H. No. 61-L, Gali No.5, East Laxmi Market, Delhi and thereafter, he alongwith Ct. Ravinder and Ct. Vikas went to the spot. He further deposed that he met IO alongwith other staff at the spot, where Ct. Vikas clicked photographs Ex. AD-7 (colly. 18 photographs) in his presence. He further deposed that he prepared SOC report and handed over to the IO, however, no chance prints were lifted from the spot and thereafter he left the spot.

STATEMENT OF ACCUSED PERSONS U/S 313 Cr.P.C.

24. In the statements of accused persons U/S 313 Cr.P.C., all the accused persons stated the case of the prosecution to be false and that they have been falsely implicated. They stated that they were not present at the spot and nothing had been recovered from their possession.

25. Arguments were advanced by Ld. APP Ramesh Bajiya on behalf of State and Shri V.K. Singh, Ld. Counsel on behalf of the Accused persons.

26. Ld. Counsel for the accused persons have argued that the prosecution witnesses PW2, PW3, PW4, PW6 who were the material witnesses did not support the prosecution case and no incriminating allegations have been made by them against persons. All the alleged eyewitness did not support the prosecution case and even in their cross- examination by the Ld. APP, nothing incriminating has come on record. It has been argued that mere recovery of weapon of offence is not sufficient to convict any person in absence of any direct evidence and the same may only be used as corroborative piece of evidence. Reliance is placed on the judgments Abdulwahab Abdulmajid Baloch v. State of Gujarat, (2009) 11 SCC 625, Brijesh Mavi v. State (NCT of SC No. 3835/19 FIR No.598/2014 PS Preet Vihar Page 15 of 29 State Vs. Ashish Kapoor & ors.

Delhi), (2012) 7 SCC 45, Deepak Chadha v. State, 2012 SCC OnLine Del 371.

27. Ld. Counsel for the accused persons has further argued that the prosecution witnesses in the present case are wholly unreliable witnesses and therefore the conviction cannot be based solely on the testimony of a wholly unreliable witness. Reliance is placed on the judgment Mahendra Singh v. State of M.P., (2022) 7 SCC 157. It is argued that there is an extraordinary delay in sending exhibit to FSL creating further doubt in the prosecution case. The alleged recovery of the weapon of offence and other objects were made on 22.09.2014 as per the case of prosecution what is the case property was sent after more than 4 years only on 06.12.2018. There is doubt with regard to arrest of the accused persons and recovery of the alleged weapons from Asif Malik and Devender Kumar. PW2, PW3, PW4, PW6, the alleged material witnesses have denied apprehending the accused Ashish Kapoor at spot or handing him over to PCR official. PW5, ASI also failed to identify accused Ashish Kapoor. Testimonies of PW7, PW9 regarding apprehension of accused by them has been contradicted by PW2, PW4 and PW6. There are material and serious contradictions in the testimony of police official witnesses creating further doubt in prosecution case. PW8, SI Kanav Kumar Yadav could not tell in his examination in chief from where accused was arrested. As per the case of the prosecution two empty cartridges and chip of bullet was recovered from the spot but PW8 deposed IO collecting only two empty cartridges. Alleged empty cartridges recovered from the spot and the police knife, country-made pistol was neither produced nor son to PW8 creating doubt in the prosecution story. PW8 stated that he never visited hospital and even could not tell where documents were prepared. PW 10 in his SC No. 3835/19 FIR No.598/2014 PS Preet Vihar Page 16 of 29 State Vs. Ashish Kapoor & ors.

examination in chief could not tell the date or time, when accused Asif Malik and Devender were arrested. He further contradicted prosecution case by stating that all the exhibit were prepared at the spot. PW 11 contradicted the case of prosecution by stating that when he reached the spot, accused persons ran away from the spot. He contradicted himself by deposing in cross-examination that when they reached the spot at 11 PM, all accused persons were present there. He further falsified the case of the prosecution by stating that all information and written proceedings were done by the IO in the police station. It has been argued that there are several drawbacks in FSL report and as such no reliance can be placed on this report. Ld. Counsel for accused persons have argued that FSL report does not reflect about the number of spaces between land and grooves in the barrel Ex.1 and the shape and size of the spaces/LAND (between groves). The FSL report does not mention about size of "SPARK". Ld. Counsel for accused persons has argued that no official expert can ascertain regarding two bullet chips belonging to the same bullet. He has argued that there are glaring contradictions in the case of the prosecution and the accused persons are entitled to be acquitted in the present case of all the charges.

28. Ld. APP has argued that the Accused Ashish Kapoor was apprehended and was handed over to the PCR which had arrived at the spot. PW7 and PW9 has identified the accused Ashish Kapoor as a person who was apprehended and handed over to the PCR. PW9, PW10 and PW10 has proved the Exhibits PW8/B, PW8/D and PW8F, which shows that the fire arm and knife used in the incident was recovered from accused Asif and Devender respectively. Testimony of Dr. V.K. Jain and letter dt. 22.09.2014 Ex. AD-3 shows that the victim received fire arm injuries and FSL report bearing no. 2018/F-11330 dt. 31.07.2020 Ex.

State Vs. Ashish Kapoor & ors.

AD-4 proves that the bullets causing injuries to victim were fired from the pistol recovered from accused Asif. Thus, there is overwhelming evidence proving the culpability of the accused person warranting their conviction under section 120B, 307/34 IPC and section 25/27 Arms Act.

29. Section 120B defines criminal conspiracy as an agreement between two or more persons to do an illegal act or to do a legal act by illegal means. The agreement can be express or implied, and the parties to the conspiracy must have a common intention to commit the illegal act. As per chargesheet all the accused persons entered into conspiracy to commit the murder of Rajaram. Accused Ashish arranged the party at the house of accused Devender. Accused Asif Malik also arrived at the spot. When all the persons were drinking liquor and eating food, Ashish Kapoor took a pistol, started waiving it and fired two rounds at Rajaram. Ashish Kapoor was overpowered by Rahul, Deepak and Irfan. FIR Ex.AD-1 dated 22.09.2014 was registered on the basis of the statement of Rahul, brother of victim, who allegedly accompanied him to the spot. Later on, PW2 Rahul in another statement dated 22.09.2014 recorded by the IO stated that while Ashish Kapoor was being overpowered, He gave the pistol to Asif Malik and when he along with Deepak and Irfan tried to catch Asif Malik, Devender took out a knife and waived at them. Asif Malik and Devender fled from the scene. Irfan Ali in his statement Ex.PW4/A recorded by the IO stated that while they all were eating, Asif Ali took out a gun and handed over the same to Ashish Kapoor, who after waiving the same fired two shots at Rajaram. Deepak in his statement Ex. PW6/PX1 stated that while they all were eating Ashish took out a pistol and fired two shots at Rajaram. Rahul, Irfan Ali and Deepak were examined by the prosecution as PW2, PW4 and PW6 Respectively. Victim Rajaram were examined as PW3. None of them SC No. 3835/19 FIR No.598/2014 PS Preet Vihar Page 18 of 29 State Vs. Ashish Kapoor & ors.

have supported the prosecution version that Accused Ashish Kapoor fired upon the victim Rajaram causing injuries as per MLC.

30. MLC Ex.PW1/A shows that the Rajaram was hospitalized with gunshot injury wound of size 1.5 cm x 1.5 cm present on the lower sternum, which fact has not been disputed on behalf of the Accused persons. As per Ex. AD3, one bullet was found lodged in the posterior axillary line below rib cage and the same was removed and handed over to nurse Veena. The said bullet lead was taken into possession by the IO vide seizure memo Ex.PW 10/D. IO took into possession two cartridges and a bullet lead from the spot vide seizure memo Ex.PW8/A in the presence of PW8, Constable Kanak. Accused Devender was arrested by IO vide arrest memo Ex.PW8/O and accused Asif Malik was arrested vide Ex.PW8/P in the presence of PW8 and PW11. One knife used in the incident was recovered from the possession of accused Devender vide seizure memo Ex.PW8/B. One pistol and three live rounds were recovered from the possession of accused Asif Malik, sketch of which was prepared Ex. PW8/F and the same was taken into the police possession vide seizure memo Ex. PW8/D. Ex.PW8D & Ex.PW/B are witnessed by PW9 & PW11. GSR sample and body control sample were taken from the right hand of the accused Ashish Kapoor vide Ex.PW8/C. FSL Report Ex.AD-4 has been admitted by the accused persons under section 294 CrPC. As per FSL Report, two cartridges covers and bullet chip lifted from the spot, bullet chip removed from the body of the victim Raja Ram, all were fired from the Pistol recovered from accused Asif Malik. However, in respect of GSR sample taken from the right hand of accused Ashish Kapoor, no definite opinion is furnished in the report. Thus, it is established by the prosecution that the bullet recovered from the body of the victim Rajaram has been fired from the pistol SC No. 3835/19 FIR No.598/2014 PS Preet Vihar Page 19 of 29 State Vs. Ashish Kapoor & ors.

allegedly recovered from accused Asif Malik.

31. It is established proposition of law that conviction cannot be recorded only on the sole premises that recovery of weapon was made and the expert opined that the bullet found inside the body of the victim was fired from the weapons seized unless there is direct evidence connecting the accused with the commission of offence. In Abdulwahab Abdulmajid Baloch v. State of Gujarat, (2009) 11 SCC 625 , Hon'ble Supreme Court has held as under:

37. Be that as it may, we feel that only because the recovery of a weapon was made and the expert opined that the bullet found in the body of the deceased was fired from one of the weapons seized, by itself cannot be the sole premise on which a judgment of conviction under Section 302 could be recorded. There was no direct evidence.

The accused, as noticed hereinbefore, was charged not only under Section 302 read with Section 34 of the Penal Code but also under Section 302 read with Section 120-B thereof. The murder of the deceased was said to have been committed by all the accused persons upon hatching a conspiracy. This charge has not been proved.

38. The learned trial Judge himself opined that the recovery having been made after nine months, the weapon might have changed in many hands. In absence of any other evidence connecting the accused with commission of crime of murder of the deceased, in our opinion, it is not possible to hold that the appellant on the basis of such slander evidence could have been found guilty for commission of offence punishable under Section 302 of the Penal Code.

32. In Sameer v. State, 2018 SCC OnLine Del 8357, Hon'ble Delhi High Court held as under:

23. In our view, the aforesaid test is not met in the facts of the present case. The recovery of the weapon of offence - even if accepted to have been made from the appellant, it does not follow that it is he, who used the same to commit the culpable homicide, much less the murder of the deceased. There are innumerable other hypothesis, which could explain the recovery of the pistol in question from the appellant, and which would not point conclusively to his guilt in the commission of the murder of the deceased. The deceased could have been shot in the Santro car, using the recovered pistol by the co-accused Sunder, or by any other person; he could have shot himself in the said car with the recovered weapon and the appellant may have found the pistol in the Santro car while riding in it with the co-accused Sunder after taking a lift from him, or with someone else, and he could have kept the same;

State Vs. Ashish Kapoor & ors.

some one - who may have either committed the offence, or found the pistol after the same had been used to cause the death of the deceased, may have given the pistol to the appellant either as a gift, or for consideration. Any number of other possibilities could realistically be visualised. Pertinently, neither of the accused is shown to have been acquainted with the deceased, or even with one another. Neither of them has been shown to have any motive to commit the murder of the deceased either individually, or collectively. The accused has the right to remain silent, and it is for the prosecution to establish the guilt of the accused beyond all reasonable doubt. The weakness in the defence of the accused cannot lead to the inference of his guilt.

33. In the present case, FSL Report Ex.AD-4 is inconclusive in respect of GSR sample taken from the right hand of accused Ashish Kapoor and no definite opinion is furnished in the report. All the four eyewitnesses PW2, PW3, PW4 and PW6 have turned hostile and as such there is no ocular evidence connecting the accused Ashish Kapoor with incident of firing upon the victim Rajaram. PW-3 Rajaram in his cross-examination deposed that two persons wearing helmets came into the house of Devender@ Babloo and one of them fired bullets at him. He deposed that the accused persons are his friends. He has been cross-examined at length by Ld. APP, however he denied the role of the accused persons in the entire incident. Similarly, PW-2, Rahul who is the brother of Rajaram and was alleged to be present at the spot also denied his presence at the time of the incident. In his cross-examination, he also denied the involvement of accused person and further denied the suggestion that he alongwith Irfan and Deepak@ Kale handed over the accused Ashish Kapoor to the Police officials. PW-4, Irfan also denied his presence at the time of incident. During his cross-examination by Ld. APP, this witness also denied that he alongwith Rahul and Deepak@ Kale handed over the accused Ashish Kapoor to the Police officials. PW-6 also did not support the prosecution case and even his cross-examination by Ld. APP has not revealed anything incriminating against the accused persons.

State Vs. Ashish Kapoor & ors.

PW-5 ASI, incharge of the PCR Van, who allegedly took the custody of the accused Ashish Kapoor failed to identify the accused Ashish Kapoor in the court. PW-9, who was posted at the PCR as driver also did not identify the accused Ashish Kapoor in the Court as the person handed over to the PCR official. PW-7, driver of PCR unit Romeo-30 identified the accused Ashish Kapoor in the court as the person handed over to the PCR official.

34. Ashish Kapoor was arrested vide Arrest memo Ex. PW8/N. PW9 and PW11 are the witnesses to the arrest memo prepared by PW10. There are contradictions in the testimony of PW8, PW10 and PW11 regarding the arrest of the accused Ashish Kapoor. PW8 deposed in his examination in chief that he does not remember the place from where the accused persons were arrested. In his cross-examination, he stated that when he alongwith SI Yogesh Kumar reached the spot, the accused persons were not present at the spot. As per testimony of PW-10 accused Ashish Kapoor was handed over to him by the PCR staff and Rahul PW-

12. PW-11, who is another witness to the Ex.PW8/N in his testimony failed to depose that Accused Ashish Kapoor was handed over to the IO by the PCR staff and Rahul nor stated that Ex.PW8/N was prepared in his presence. He further deposed that when he reached the spot, accused persons ran away from the spot. He contradicted himself in his cross- examination and stated that when he reached the spot, all the accused persons were present there. Thus, there are material contradictions with regard to the place of arrest of the accused Ashish Kapoor and other accused persons.

35. It is established proposition of law that a presumption can be drawn only from facts and not from other presumptions. In Suresh Budharmal Kalani @ Pappu Kalani v. State of SC No. 3835/19 FIR No.598/2014 PS Preet Vihar Page 22 of 29 State Vs. Ashish Kapoor & ors.

Maharashtra, (1998) 7 SCC 337 the Hon'ble Supreme Court held that a presumption can be drawn only from facts - and not from other presumptions - by a process of probable and logical reasoning. In the present case all the star witnesses examined by the prosecution as eye- witnesses during trial have turned hostile. Even if it is assumed for the sake of argument that accused Ashish Kapoor was arrested from the spot. Perusal of the deposition of PW5, PW7, PW8, PW9, PW10, PW11 shows that they did not speak of any conspiracy, much less of a conspiracy to commit the murder of victim Rajaram. Their statements only disclose that on accused Ashish Kapoor was handed over to the PCR staff by Rahul on 22.09.2014, and PCR official handed over the accused Ashish Kapoor to the IO. Testimony of PW8, PW10 and PW11 further deposed that accused Devender and Asif Malik were arrested later and the knife and pistol used in the crime were recovered from accused Devender and Asif Malik respectively. Therefore, no presumption can be drawn of a conspiracy on the part of the accused persons to kill Rajaram as the evidence led by the prosecution do not afford any foundation for the same.

36. The Hon'ble Calcutta High Court in Nibaran Chandra Roy v. King-Emperor, 1907 SCC OnLine Cal 138, where it was held that the fact that the accused person was found with a gun in his hand immediately after the gun was fired, and a man was killed on the spot from the said fire, may be strong circumstantial evidence against the accused, but it is an error of law to hold that the burden of proving innocence lies upon the accused under such circumstances. Even if the forensic evidence is to be accepted, which establishes the use of the fire arm recovered from the co-accused Asif Malik for causing bullet injuries to the victim Rajaram, it cannot be said that the said circumstance in SC No. 3835/19 FIR No.598/2014 PS Preet Vihar Page 23 of 29 State Vs. Ashish Kapoor & ors.

itself is sufficient to conclude guilt of the accused Ashish Kapoor. There is no direct evidence to connect the accused Ashish Kapoor with the incident. Further it cannot be said that the chain of evidence is complete in the present case, since there is no evidence to establish that the accused Ashish Kapoor fired upon the victim Rajaram in furtherance of conspiracy entered into by all the three accused persons Ashish Kapoor, Devender and Asif Malik or in furtherance of common intention of all. It is further not the case of the prosecution that the accused Asif Malik or Devender fired upon the victim Rajaram. PW2, PW3, PW4 and PW6 have remained inimical to case to the prosecution that accused Ashish Kapoor fired upon the accused Rajaram and thereafter handed over the pistol to accused Asif Malik and when PW2 and PW4 tried to catch hold of the accused Asif Malik, accused Devender took out the knife and waived it at them. Thus, the prosecution has failed to establish beyond reasonable doubt the fact that all the accused persons entered into conspiracy to commit the murder of victim Rajaram and in furtherance of common intention of all the accused persons, accused Ashish Kapoor fired upon the victim Rajaram. The decision in Abdulwahab (supra) is also squarely attracted in the facts of the present case.

37. Accused Devender and Accused Asif Malik have also been charged under Section 25 and 27 of Arms Act and Accused Ashish Kapoor has been charged under Section 27 of Arms Act. there is no evidence on record that Ashish Kapoor fired upon Rajaram using pistol. Rajaram who deposed as PW-3 himself denied that Ashish Kapoor fired upon him. Thus, the prosecution has failed to prove the charge under section 27 of Arms Act against the accused Ashish Kapoor. Similarly there are no evidence at all that Accused Devender used the knife during the incident. None of the prosecution witness have supported the case of SC No. 3835/19 FIR No.598/2014 PS Preet Vihar Page 24 of 29 State Vs. Ashish Kapoor & ors.

the prosecution that Accused Devender waived the knife, when Rahul and Deepak @ Kale tried to catch hold of Asif Malik. Similarly, none of the prosecution witness have supported the prosecution case qua use of pistol by Accused Asif Malik in the incident of firing upon Rajaram. Thus, the charge under section 27 of Arms Act is not proved against the Accused Devender and Asif Malik.

38. Accused Devender and Asif Malik are also charged under section 25 of the Arms Act. It is the case of the prosecution that one knife with blade 15.8 cm and 3.3 cm width was recovered from accused Devender vide seizure memo Ex. 8/B and the pistol from which the bullet was fired upon Rajaram was recovered from the possession of accused Asif Malik vide Ex. 8/D. Pertinently, the accused persons in their defence had claimed false implication and the planting of the weapon upon them. Apart from the testimony of the three police witnesses i.e., PW-8, PW-10 and PW-11, who were the witnesses to the recovery of the weapon of offence, there are no other independent evidence brought on record to establish the recovery of the weapon of offence from the accused Devender and Accused Asif Malik. SI Yogesh, PW-10 deposed that Accused Ashish Kapoor was handed over by PCR staff and Rahul. He deposed that he recorded the statement of Rahul Ex. PW2/A. Crime team was called for inspection. Two empty cartridge and one bullet led was recovered vide seizure memo Ex. PW8/A. Thereafter Rukka was prepared and was sent through Ct. Kanak for registration of FIR. During investigation he received an information that accused Asif Malik and Devender are present in Patparganj Area. He further deposed that on receiving the information, he alongwith Ct. Kanak and Ct. Sonu reached near Makkar Hospital, Patparganj Road and apprehended the accused Devender and Accused Asif. Knife was recovered from accused SC No. 3835/19 FIR No.598/2014 PS Preet Vihar Page 25 of 29 State Vs. Ashish Kapoor & ors.

Devender in the presence of police witnesses Ct. Kanak and Ct. Sonu by SI Yogesh vide Ex.8/B and pistol was recovered from accused Asif Malik by SI Yogesh in the presence of Ct. Kanak and Ct. Sonu vide Ex.PW8/D. PW10 further deposed that he prepared all the documents and exhibits at the spot. PW8 Kanak deposed that he does not remember from where the accused persons were arrested. PW8 deposed that all the exhibits were prepared by the IO at the spot. As per his testimony, after the arrest of all the accused persons and recovery of weapons, he was sent to police station alongwith Rukka for registration of FIR. In his cross-examination, the witness deposed that he does not remember, where all the documents were prepared. PW-11, Ct. Sonu deposed that when they reached the spot, all the accused persons have already run away from the spot. During his cross-examination, he deposed that all the accused persons were present at the spot. He further deposed that when he reached the spot, IO was already present at the spot. He deposed that after arresting the accused person, they immediately went to the police station. All interrogation and written proceedings were done by the IO at the police station.

39. A careful scrutiny of PW8, PW10 and PW11 shows that there are material contradictions with regard to place of arrest of the accused persons and the place where all the exhibits were prepared. PW8 who is one the witnesses to the seizure memo Ex. PW8/B and Ex. PW8/D have failed to deposed as to the place from where the recovery of weapons from the accused persons were made. During his cross-examination PW- 8 deposed that when he reached the spot, accused persons were not present at the spot, thus he contradicted the prosecution case that accused Ashish Kapoor was apprehended at the spot. PW-11 in his cross- examination deposed that when he alongwith SI Yogesh Kumar reached SC No. 3835/19 FIR No.598/2014 PS Preet Vihar Page 26 of 29 State Vs. Ashish Kapoor & ors.

the spot, all the accused persons were present at the spot, thus he contradicted the prosecution case that accused Devender and Asif Malik had fled from the spot and were later arrested near Makkar Hospital. PW- 8 deposed that all the exhibits were prepared at the spot, whereas PW -11 deposed that all the written proceedings were done by the IO at the police station. In their cross-examination, PW-8, PW-10 and PW-11 admitted that public persons were present at the spot, however their testimonies are silent as to whether any public person was asked to join the investigation. In Anup Joshi Vs State, 1999 (2) C.C. Cases 314 (HC), the Hon'ble High Court observed as under:

"18. It is repeatedly laid down by this court that in such cases it should be shown by the police that sincere efforts have been made to join independent witnesses. In the present case, it is evident that no such sincere efforts have been made, particularly when we find that shops were open and one or two 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".

40. In Nanak Chand v. State (NCT of Delhi), 1990 SCC OnLine Del 469 "... the recovery is proved by three police officials who have differed on who snatched the Kirpan from the petitioner and at what time. The recovery was from a street with houses on both sides and shops nearby. And, yet no witness from the public has been produced. Not that in every case the police officials are to be treated as unworthy of reliance but their failure to join witnesses from the public especially when they are available at their elbow, may, as in the present case, cast doubt. They have again churned out a stereotyped version. Its rejection needs no Napoleon on the Bridge at Arcola".

41. In State of Punjab v. Balbir Singh, (1994) 3 SCC 299, Hon'ble Supreme Court observed as under:

7. It therefore emerges that non-compliance of these provisions i.e. Sections 100 and 165 CrPC would amount to an irregularity and the SC No. 3835/19 FIR No.598/2014 PS Preet Vihar Page 27 of 29 State Vs. Ashish Kapoor & ors.

effect of the same on the main case depends upon the facts and circumstances of each case. Of course, in such a situation, the court has to consider whether any prejudice has been caused to the accused and also examine the evidence in respect of search in the light of the fact that these provisions have not been compiled with and further consider whether the weight of evidence is in any manner affected because of the non-compliance. It is well settled that the testimony of a witness is not to be doubted or discarded merely on the ground that he happens to be an official but as a rule of caution and depending upon the circumstances of the case, the courts look for independent corroboration. This again depends on question whether the official has deliberately failed to comply with these provisions or failure was due to lack of time and opportunity to associate some independent witnesses with the search and strictly comply with these provisions.

42. Considering the aforementioned proposition of law and the omissions / failure on the part of IO to join independent public witnesses despite availability and contradictions found in the deposition of of PW- 8, PW-10 and PW-11, creates reasonable doubt in the prosecution story and raises serious doubts about alleged recovery made from accused Devender and Asif Malik vide Ex.PW-8/B and Ex.PW-8/D respectively. There was no lack of time and opportunity to associate some independent witnesses with the search and strictly comply with the provisions of Code of Criminal Procedure, especially when the public persons were available at the spot.

43. From the aforesaid discussion, it is very clear that the manner in which the inquiry, seizure and search has been conducted on the spot at the time of alleged recovery of pistol and knife from accused Asif Malik and Devender respectively, it makes the prosecution version highly doubtful. All the eyewitnesses examined by the prosecution have remained inimical to the case of the prosecution regarding complicity of the accused persons namely Ashish Kapoor, Devender and Asif Malik in the conspiracy to commit murder of Rajaram and firing by accused Ashish Kapoor upon Rajaram in furtherance of common intention of all SC No. 3835/19 FIR No.598/2014 PS Preet Vihar Page 28 of 29 State Vs. Ashish Kapoor & ors.

the accused person. There is no evidence that accused Devender and accused Asif Malik used the weapons recovered from them during the incident. Even victim Rajaram, who deposed as PW3 have not supported the case of the prosecution. In a criminal trial, the onus remains on the prosecution to prove the guilt of accused beyond all reasonable doubts and benefit of doubt, if any, must necessarily go in favour of the accused. In the present case, prosecution appears to be improbable and lacks credibility, therefore the benefit of doubt necessarily has to go to the accused persons.

44. Therefore, in view of the discussions made herein above and the facts and circumstances of the present case, in my considered opinion, the prosecution has failed to prove the guilt of the accused persons beyond reasonable doubt. Hence accused persons namely Devender, Asif Malik and Ashish Kapoor stands acquitted of the charges framed under Sections 120B, 307/34 IPC. Additionally, accused Devender and Accused Asif Malik stands acquitted of the charge under Section 25 and 27 of Arms Act. Accused Ashish Kapoor also stands acquitted of the Charge framed under Section 27 of Arms Act.

45. Bail bonds of the accused persons except bail bonds filed under section 437A CrPC stand cancelled. Their sureties stands discharged. Case property, if any, be released to the rightful owners.

File be consigned to Record Room after due compliance. Announced in the open court on this 20 th Day of March, 2024.

(ALOK SHUKLA) ASJ-2/Special Judge (NDPS) East District, Karkardooma Court, Delhi/20.03.2024 SC No. 3835/19 FIR No.598/2014 PS Preet Vihar Page 29 of 29