Delhi District Court
State vs . Sushil Kumar & Others on 19 January, 2018
SC/44251/2015
State Vs. Sushil Kumar & others
IN THE COURT OF SHRI DEEPAK JAGOTRA,
DISTRICT & SESSIONS JUDGE, NORTH EAST DISTRICT,
KARKARDOOMA COURTS, DELHI
SC/44251/2015
State Versus 1. Sushil Kumar
S/o Vishambar
R/o C275, Gali No.24,
Pakki Khajuri, Delhi
2. Bhupender @ Chinu
S/o Santram
R/o House No.2, Gali No.1,
CBlock, Khajuri Khas, Delhi
3. Gautam Giri
S/o Anand Giri
R/o VPO Mukdi, Teh Jiyana,
District Bulandshahar, UP
FIR No.41/12
PS Sonia Vihar
under Section 454/392/397/34 IPC
& under Section 25 of the Arms Act
Date of institution of case : 27092013
Date of reserving the case for Judgement : 11012018
Date of passing of Judgment : 19012018
FIR No.41/12
PS Sonia Vihar Page No. 1/30
under Section 454/392/397/34 IPC
& under Section 25 of the Arms Act
SC/44251/2015
State Vs. Sushil Kumar & others
JUDGMENT
1. This is a case filed on behalf of State whereby prosecution is seeking conviction of accused (1) Sushil Kumar and (2) Bhupender @ Chinu, who along with accused Monu @ Rahul (Being juvenile prosecuted before Juvenile Justice Board) had committed robbery in House No.G3/226, Gali No.11, Sonia Vihar, Delhi of jewelery including gold and silver and Rs.3,500/ in cash and while committing robbery accused Monu @ Rahul (Juvenile) had used knife, for the offences punishable under Section 454/392/397/34 of the Indian Penal Code (hereinafter in short shall be referred as "IPC"). The prosecution is also seeking conviction of accused Gautam Giri for the offence punishable under Section 25 of the Arms Act.
2. I have heard both the sides and meticulously gone through the record of the case.
3. Learned Chief Public Prosecutor for the State has submitted that prosecution has successfully proved its case beyond reasonable doubt against the accused persons and further prays that FIR No.41/12 PS Sonia Vihar Page No. 2/30 under Section 454/392/397/34 IPC & under Section 25 of the Arms Act SC/44251/2015 State Vs. Sushil Kumar & others accused persons may be convicted for the offences charged against them.
4. On the other hand, it has been submitted on behalf of the accused persons that they have been falsely implicated in this case and the prosecution has miserably failed to prove its case beyond reasonable doubt against the accused persons and further prays for the acquittal of the accused persons.
5. The facts of the case in concise format are that on 1903 2012 at around 3 pm, accused Sushil Kumar and Bhupender @ Chinu along with accused Monu @ Rahul (being juvenile is being prosecuted before Juvenile Justice Board) had committed robbery of jewelery i.e. a pair of gold ear rings, a pair of silver pajeb, a pair of silver necklace set with gold plate, a pair of silver tops, another pair of silver ear tops, a pair of silver ring, a silver coin and a sum of Rs.3,500/ in cash from House No.G3/226, Gali No.11, Sonia Vihar, Delhi and while committing robbery, accused Monu @ Rahul had used knife by putting it on child namely Pratham aged about 8 years. FIR No.41/12 PS Sonia Vihar Page No. 3/30 under Section 454/392/397/34 IPC & under Section 25 of the Arms Act SC/44251/2015 State Vs. Sushil Kumar & others
6. The detailed facts of the case shall be appreciated at the relevant stages of the judgment.
7. Before proceeding further, it would be appropriate to recapitulate the sequence of events which are as under;
8. The present case has been committed for trial and the charge sheet was received by the Court on 27092013. Charge was framed against the accused persons Sushil Kumar and Bhupender @ Chinu on 09012014 for the offences punishable under Section 454/392/397/34 IPC and separate charge was framed against accused Gautam Giri for the offence punishable under Section 25 of the Arms Act on 03112015. The accused persons have pleaded not guilty and claimed trial for the offences charged against them.
9. In order to prove its case, the prosecution has examined as many as 15 witnesses.
10. Statement under Section 313 Cr.P.C. of the accused persons were recorded on 30112017.
FIR No.41/12 PS Sonia Vihar Page No. 4/30 under Section 454/392/397/34 IPC & under Section 25 of the Arms Act SC/44251/2015 State Vs. Sushil Kumar & others
11. In their defence, no witness has been examined by the accused persons.
ANALYSIS OF PROSECUTION EVIDENCE OCCULAR EVIDENCE
12. The prosecution in order to prove its case has brought in the witness box its star witness complainant Smt. Mamta Srivastava as PW1. Before the Court, she has stated that her husband had expired about 8 years ago and she has a son namely Pratham, who is about 10 years old. She has further stated that she used to go from her house at about 9 am and used to come to her house at 6.30 pm. She has further stated that her son after coming from the school used to stay at home. She has further stated that on 19032012 in routine, she had gone for her job and on that day in the noon time, she had received a call from someone, who had informed her that theft had taken place at her residence. She has further stated that she took leave from the job and went back to her house. She has further stated that she saw articles of FIR No.41/12 PS Sonia Vihar Page No. 5/30 under Section 454/392/397/34 IPC & under Section 25 of the Arms Act SC/44251/2015 State Vs. Sushil Kumar & others her house were scattered and her son Pratham was crying. She has further stated that when she came to her house, no other person was present there except her son Pratham. She has further stated that she had not seen any person apprehended by public persons and she does not know as to who had entered in the house. She has further stated that no person was shown to her, who had committed theft in her house. She has further stated that after checking, she found one set of silver, one gold earring, one pair pajeb of silver, two silver coins, two or three pairs of ear tops of silver and Rs.3,500/ cash were missing from her house.
13. At that stage, learned Additional Public Prosecutor for the State had requested to cross examine the witness on the ground that she is resiling from her previous statement given to the police which was allowed.
14. In the cross examination carried out by learned Additional Public Prosecutor for the State, she has admitted that Ex.PW1/A bears her signatures at points A1,A2, A3 and A4 but she FIR No.41/12 PS Sonia Vihar Page No. 6/30 under Section 454/392/397/34 IPC & under Section 25 of the Arms Act SC/44251/2015 State Vs. Sushil Kumar & others had stated that her statement was not read over to her by the police and she had also not gone through the said statement. She has denied the suggestion that she has signed Ex.PW1/A after reading it. She has also denied the suggestion that her neighbour Prem Singh had called her at about 3 pm and told her that three persons had entered into her house and the accused persons had shown knife to Pratham and committed robbery in her house and he further told her that out of them, one person had been apprehended. She has also denied the suggestion that she had stated all these facts to the police in her statement Ex.PW1/A and was confronted with portion A to A where these facts were so recorded. She has made a voluntary statement that Prem Singh was not present there and only he took her from the police station. She has further denied the suggestion that when she reached at her house from the factory, she saw accused present in the Court, who was apprehended by her neighbourers Prem Singh and Kailash Chand. She has denied the suggestion that in the meanwhile, police officials reached the spot and she has stated these facts to the police in her FIR No.41/12 PS Sonia Vihar Page No. 7/30 under Section 454/392/397/34 IPC & under Section 25 of the Arms Act SC/44251/2015 State Vs. Sushil Kumar & others statement Ex.PW1/A, confronted with portion B to B where said facts were so recorded. She had voluntarily stated that one person was apprehended by the public persons and she saw him in the custody of public persons and he was beaten up by them however she is not able to identify the said person and she also does not know if the said person had told his name as Sushil Kumar. She could not say if accused present in the Court was the same person, who was apprehended at the spot. She has admitted the fact that the person, who was apprehended by the public persons was searched and one ear rings of silver having golden polish was recovered but she could not say if the person, who was apprehended at the spot disclosed the name of other persons as Monu and Chinu. She has admitted that the ear rings which were recovered from the person, who was apprehended at the spot belonged to her and she has identified the same. She has also admitted the fact that her son Pratham had told her that the accused persons had entered the house and they showed him knife and committed robbery in the house. She has denied the suggestion that FIR No.41/12 PS Sonia Vihar Page No. 8/30 under Section 454/392/397/34 IPC & under Section 25 of the Arms Act SC/44251/2015 State Vs. Sushil Kumar & others she is deliberately not identifying the accused present before the Court as she has been won over by the accused. She has also denied the suggestion that she is intentionally not identifying the accused or that she is suppressing the truth. She has denied the suggestion that accused Sushil present in the Court was arrested in her presence or that memo in that regard was prepared. She has also denied the suggestion that accused Sushil present before the Court admitted his guilt in the aforesaid crime and disclosed the name of other accused persons as Chinu @ Bhupender and Rahul @ Monu. She has also denied the suggestion that the earrings recovered from the person, who was apprehended at the spot was taken into possession in her presence by the police officials. She has voluntarily stated that police officials had kept the said earrings with them and the same were not taken into possession in her presence. She has also denied the suggestion that she is deposing falsely or that all the aforesaid proceedings had taken place in her presence. At the same time, she has identified one small silver coin before the Magistrate which FIR No.41/12 PS Sonia Vihar Page No. 9/30 under Section 454/392/397/34 IPC & under Section 25 of the Arms Act SC/44251/2015 State Vs. Sushil Kumar & others belonged to her and was robbed on the day of incident. She has identified the silver coin Ex.P1 and earrings Ex.P2.
15. The second star witness PW2 Pratham in his testimony before the Court has stated that he resides in their house with her mother namely Mamta and her mother works in a private factory, who leaves the house at about 9 am and comes back in the evening at about 6 pm. He was unable to tell the date, month or year of the incident. He has further stated that the incident had occurred at 3 pm when he was alone in the house and watching television and electricity was off. He has further stated that suddenly three persons entered inside the house but he could not say from where they entered inside. He has further stated that all those three persons had their faces covered with a cloth except their eyes which were visible and he got terrified. He has further stated that one of them was having a knife which was 810 inches in length and they made him to sit and they took away Kangans but he did not know how many and from where. He has further stated that all the three persons went out of the house and ran away. He has FIR No.41/12 PS Sonia Vihar Page No. 10/30 under Section 454/392/397/34 IPC & under Section 25 of the Arms Act SC/44251/2015 State Vs. Sushil Kumar & others further stated that he does not know if anyone of those three persons had been apprehended or captured. He has further stated that when he came out of his house, he saw a crowd of persons collected there but he does not know if anyone of those three culprits were captured or not.
16. At that stage, learned Additional Public Prosecutor for the State had made a request to cross examine the witness on the ground that he is suppressing the facts which he had got recorded in his statement under Section 161 Cr.P.C.
17. In the cross examination carried out by learned Additional Public Prosecutor for the State, he has stated that he cannot say if the said date of incident was 19052012. He has admitted the fact that those three persons when came inside their house, they had scaled over boundary wall and on seeing them, he started crying and got terrified. They had indulged themselves in stealing articles from the house but he does not know if the articles they took away comprised of silver or gold jewelery or even money. FIR No.41/12 PS Sonia Vihar Page No. 11/30 under Section 454/392/397/34 IPC & under Section 25 of the Arms Act SC/44251/2015 State Vs. Sushil Kumar & others The witness has further stated that he had not raised any hue and cry when those three persons jumped over boundary wall while in their attempt to run away. He also does not know if one of those three persons had been apprehended and captured by public persons just outside their house. He has also denied the suggestion that he is suppressing the fact regarding one of the three culprits captured at the spot or that culprit had been captured by public persons when he had raised alarm.
18. In the cross examination carried out on behalf of the accused persons, he had stated that he cannot identify any one of those three persons and he admitted that it may be true that by the time, he came out of the house, those three boys had gone away.
19. The third star witness PW3 Prem Singh in his testimony before the Court had stated that about 2 years back, it was around 3.30 or 4 pm when he had come to his house from his hotel shop, he then came to know that some persons having committed theft inside the house of Smt. Mamta residing in their locality had run away FIR No.41/12 PS Sonia Vihar Page No. 12/30 under Section 454/392/397/34 IPC & under Section 25 of the Arms Act SC/44251/2015 State Vs. Sushil Kumar & others and he came to know that one of those three accused when chased and followed by public persons had entered inside Samrat Banquet Hall and that thief had been captured by the public from that place. He has further stated that he does not know if any robbed article was recovered from that person or not and he cannot say if any one of the two accused persons present in the Court was captured by the public on the spot.
20. Learned Additional Public Prosecutor for the State had requested to cross examine the witness as the witness was resiling from his earlier statement which was allowed.
21. In the cross examination, he had stated that child Pratham remains present alone in the house when Mamta goes for her private duty in a factory which is situated in Mukund Vihar. He has admitted that the date of incident is 19032012. The witness has denied the suggestion that on the day of incident, he had been present throughout in his house because of the ill health of his son. He has also denied the suggestion that on the day of incident at about 2.50 FIR No.41/12 PS Sonia Vihar Page No. 13/30 under Section 454/392/397/34 IPC & under Section 25 of the Arms Act SC/44251/2015 State Vs. Sushil Kumar & others pm, he and Kailash Chand were present in their gali and were attentive towards the house of Mamta. He has also denied the suggestion that he himself saw a boy jumping over the wall of the house of Mamta and followed by two boys jumping over the boundary wall or that he and Kailash Chand then raised hue and cry or that many persons of their locality collected and they captured those three boys near Samrat Office or that name of the boy, who had been captured was known as Sushil. He has also denied the suggestion that accused Sushil present in the Court is that boy, who had been captured. He had not at all seen if accused Sushil was apprehended and captured at the spot. He has further stated that he does not recollect if 100 number call wherein information conveyed was that some persons using a knife committed robbery in the house of Mamta. He has further stated in the cross examination that said information was given to him by his wife when he reached his house somewhere between 34 pm and his wife came to know about the incident when there was a talk in the gali. He has further stated that he had not met FIR No.41/12 PS Sonia Vihar Page No. 14/30 under Section 454/392/397/34 IPC & under Section 25 of the Arms Act SC/44251/2015 State Vs. Sushil Kumar & others child of Mamta before giving a call at 100 number. He has denied the suggestion that he had put his signatures on the memos when accused Sushil was arrested by the police at around 6.40 pm. He has further stated that he had not seen accused Sushil on the spot at all. He has further denied the suggestion that accused Sushil was searched in his presence and from the right pocket of his pant, one earring was recovered and the same was identified by Mamta in his presence which was robbed from his house. He has further denied the suggestion that Sushil had made any disclosure statement in his presence. He has further denied the suggestion that all the proceedings were conducted in his presence or that accused Sushil was captured in his presence or that an earring was recovered from his possession. He has also denied the suggestion that he is deliberately not identifying the accused persons as he has been won over by the accused persons. He has also denied the suggestion that he had seen other accused Bhupender @ Chinu present in the Court was running away after jumping the wall of the house of Mamta or that he is FIR No.41/12 PS Sonia Vihar Page No. 15/30 under Section 454/392/397/34 IPC & under Section 25 of the Arms Act SC/44251/2015 State Vs. Sushil Kumar & others deliberately not identifying other accused Bhupender @ Chinu. He has further stated that he cannot identify the case property as nothing was recovered in his presence.
22. PW8 HC Anil had stated that on 20032012, accused Sushil present in the Court was taken out of the lock up of PS Bhajanpura and he was produced in the Court. On pointing out of accused Sushil Kumar, accused Bhupender @ Chinu present in the Court was arrested from Gali No.24 and one big silver coin was recovered from his possession. He has identified one big silver coin Ex.PW8/P2.
23. In the cross examination carried out on behalf of accused Sushil, he has denied the suggestion that accused was not present in the gali or that he was apprehended when he was going for his official work along with his employer or that he was returning from the house of his employer and was arrested on the way or that he has no connection with the crime.
FIR No.41/12 PS Sonia Vihar Page No. 16/30 under Section 454/392/397/34 IPC & under Section 25 of the Arms Act SC/44251/2015 State Vs. Sushil Kumar & others
24. PW9 Ct. Vipin had stated that on 19032012, he was posted in PS Sonia Vihar on emergency duty along with ASI Mukesh. He has further stated that on receipt of DD No.19A at about 4.15 pm, he along with IO had gone to GBlock, 5th Pusta, Sonia Vihar, there they met Mamta and her two neighbours namely Kailash and Prem. He has further stated that they produced accused Sushil present before the Court today and on casual search of the accused, one earring was found in his possession having golden colour and made of silver.
25. PW15 SI Yogesh Kumar, who is the IO of the case had stated that on 19032012 on receipt of DD entry no.19A, he along with Ct. Vipin reached the spot where complainant Mamta Srivastava met them and accused Sushil Kumar present in the Court was in the grip of her two neighborers Prem Singh and Kailash Chand. He has further stated that while conducting the search of accused Sushil Kumar, one golden colour earring was recovered from his pant. He has identified the earring Ex.P2.
FIR No.41/12 PS Sonia Vihar Page No. 17/30 under Section 454/392/397/34 IPC & under Section 25 of the Arms Act SC/44251/2015 State Vs. Sushil Kumar & others
26. PW12 Shri Ankur Jain, ACMM had proved the TIP proceedings of the case property as Ex.PW1/F wherein complainant Mamta Srivastava had correctly identified the small coin but failed to identify the pajeb and big silver coin.
RECOVERY OF COUNTRY MADE PISTOL FROM THE POSSESSION OF ACCUSED GAUTAM GIRI
27. PW8 HC Anil in his testimony before the Court had stated that on 20032012, accused Sushil Kumar disclosed that accused Gautam Giri was the master mind of the operation and accordingly accused Sushil had led them to G3 Block, Gali No.11, Sonia Vihar and from there, they went to Gali No.3, Karawal Nagar from where accused Gautam Giri was apprehended and on carrying out search of accused Gautam Giri, he was found in possession of country made pistol (Katta) .315 bore which was loaded and he has identified the country made pistol (Katta) Ex.PW8/P1 which was recovered from accused Gautam Giri.
28. PW10 ASI Rajender Prasad, PW14 HC Rajesh Kumar FIR No.41/12 PS Sonia Vihar Page No. 18/30 under Section 454/392/397/34 IPC & under Section 25 of the Arms Act SC/44251/2015 State Vs. Sushil Kumar & others and PW15 SI Yogesh Kumar had stated on the similar lines and they had also identified the country made pistol (Katta) Ex.PW8/P1.
CUMULATIVE EFFECT OF THE ENTIRE EVIDENCE
29. In order to prove its case, the prosecution has examined three main witnesses. The fourth witness Kailash Chand could not be examined and to that effect IO SI Yogesh Kumar had stated that on 15082017, he had visited the house bearing no.G3/243, Gali No.11, Sonia Vihar, Delhi of witness Kailash Chand. On visiting the house, he came to know that he has left the said address and he made further inquiries from Smt. Mamta Srivastava and Shri Prem Chand, they both gave their statements to the effect that they are not aware about his present whereabouts. SI Yogesh Kumar had recorded their statements Ex.C1 and Ex.C2 respectively and gave his report Ex.C3. He has further stated that despite best efforts, he could not trace Kailash Chand and there is no likelihood of finding him.
30. The incident had happened when PW2 Pratham was alone in his house as his mother had left for her job. Three persons with FIR No.41/12 PS Sonia Vihar Page No. 19/30 under Section 454/392/397/34 IPC & under Section 25 of the Arms Act SC/44251/2015 State Vs. Sushil Kumar & others their faces covered had entered in his house and on the point of knife, he was made to sit. According to him, they took away Kangans but he could not tell as to how many of them came there and from where they entered the house. He has further stated that all the three accused persons then went out of the house and then ran away. He has further stated that when he came out of the house, he saw a crowd of persons had gathered there but he could not tell if anyone of those three assailants were captured or not.
31. PW1 Smt. Mamta Srivastava, mother of Pratham, in her testimony had stated that on 19032012, she was out of the house for her job and on information received, she came to her house and saw some articles scattered and his son was crying. After checking, she found out that one set of silver, one gold earring, one pair pajeb of silver, two silver coins, two or three pairs of ear tops of silver and Rs.3,500/ cash were missing from her house. She has further stated that she had not seen any person apprehended by public persons and no person was shown to her, who had committed theft in her house. FIR No.41/12 PS Sonia Vihar Page No. 20/30 under Section 454/392/397/34 IPC & under Section 25 of the Arms Act SC/44251/2015 State Vs. Sushil Kumar & others
32. PW3 Prem Singh, who is the neighbour of complainant could only tell that he came to know that some persons had committed theft inside the house of Smt. Mamta Srivastava and also came to know that one of those thieves when chased and followed by public persons had been captured by public from inside Samrat Banquet Hall. He did not know if any stolen articles were recovered from that person or not and one out of those persons was captured by the public at the spot.
33. In nutshell, all the three public witnesses have stated that some robbery was committed in the house of Smt. Mamta Srivastava when her son Pratham was alone in the house. It was further found out that some jewelery and silver coins were robbed off from her house on the point of knife. But most importantly all the three star witnesses have completely failed to identify any accused person, who had committed robbery at the house of Smt. Mamta Srivastava on 19 032012. All the three star witnesses at length were cross examined by learned Additional Public Prosecutor for the State and all of them FIR No.41/12 PS Sonia Vihar Page No. 21/30 under Section 454/392/397/34 IPC & under Section 25 of the Arms Act SC/44251/2015 State Vs. Sushil Kumar & others again failed to connect any of the accused person in the commissioning of the offence. In their testimonies, nothing has surfaced which could connect the accused persons in committing the crime relating to the present case. All the three witnesses have completely failed to identify the accused persons and completely denied the suggestion put forth by learned Additional Public Prosecutor for the State that the accused persons were involved in the commissioning of the offence.
34. PW3 Prem Singh has particularly denied that accused Sushil was apprehended and captured by the public persons. In the cross examination, he had categorically stated that he had not seen accused Sushil at the spot at all. In the cross, it was rather revealed that he only came to know about the incident through his wife.
35. PW2 Pratham has also stated in the cross examination that he does not know if one of those three persons was apprehended and captured by the public persons just outside their house. He has affirmed that he cannot identify anyone of those persons, who had FIR No.41/12 PS Sonia Vihar Page No. 22/30 under Section 454/392/397/34 IPC & under Section 25 of the Arms Act SC/44251/2015 State Vs. Sushil Kumar & others entered in his house.
36. Similarly, PW1 Smt. Mamta Srivastava had also not supported and corroborated the case of the prosecution in any manner and denied that she is deliberately not identifying the accused Sushil, who was allegedly arrested in her presence. She has also not supported the case of the prosecution that her earrings were recovered from the person, who was apprehended at the spot though she had identified her one silver coin Ex.P1 and earrings Ex.P2.
37. PW3 Prem Singh has also denied the suggestion of learned Additional Public Prosecutor for the State that on search of accused Sushil, one earrings were recovered which was identified by Smt. Mamta Srivastava in his presence to be the same which were robbed off from her house. He has also denied the suggestion that earrings were kept in a match box and was converted into a cloth pulanda and sealed with the seal of YAS and was taken into possession by the police in his presence. He has denied the suggestion that all the proceedings were conducted in his presence. He has not FIR No.41/12 PS Sonia Vihar Page No. 23/30 under Section 454/392/397/34 IPC & under Section 25 of the Arms Act SC/44251/2015 State Vs. Sushil Kumar & others identified any of the case property. Therefore, none of the star witnesses of the prosecution has supported the case of the prosecution in any manner whatsoever.
38. PW1 Smt. Mamta Srivastava in TIP proceedings has also not identified the pajeb and big silver coin. It was only the police officials, who had identified the case property. The big silver coin was identified by PW8 which is Ex.PW8/P2 to be the same which was recovered from accused Bhupender @ Chinu. The big silver coin is also identified by PW10 ASI Rajender Prasad and PW14 HC Rajesh Kumar which was recovered from accused Bhupender @ Chinu.
39. PW9 Ct. Vipin and PW15 SI Yogesh Kumar have identified the earrings Ex.P2 which were recovered from accused Sushil. One silver coin was identified by PW1 Smt. Mamta Srivastava, PW14 HC Rajesh Kumar and PW15 SI Yogesh Kumar which is Ex.P1 which was recovered from accused Monu (Juvenile).
40. All important witness PW1 in TIP proceedings has completely failed to identify Pajeb and big silver coin. The TIP FIR No.41/12 PS Sonia Vihar Page No. 24/30 under Section 454/392/397/34 IPC & under Section 25 of the Arms Act SC/44251/2015 State Vs. Sushil Kumar & others proceedings are Ex.PW1/F. Once the owner of property fails to identify the articles belonging to her, the effect of being identified by police officials becomes ineffective and unworthy of any credence. It boils down to the fact that neither the accused persons nor the case property was identified by the material witnesses and the combined effect is that the prosecution has completely fails to fasten the accused persons with the crime. The identification of the case property by the police officials by itself is not good enough to implicate the accused persons with the crime alleged against them. The testimonies of police officials are not at all supported and corroborated by any public person and more importantly from whose house the alleged robbery was committed. The statement of PW9 Ct. Vipin to the effect that accused Sushil was found to have in his possession one earring in the presence of Mamta, Kailash and Prem is not corroborated by PW1 Smt. Mamta Srivastava and PW3 Prem Singh. Similarly, the testimony of PW15 SI Yogesh Kumar to the effect that accused Sushil was in the grip of Mamta, Kailash Chand and Prem Singh becomes FIR No.41/12 PS Sonia Vihar Page No. 25/30 under Section 454/392/397/34 IPC & under Section 25 of the Arms Act SC/44251/2015 State Vs. Sushil Kumar & others totally devoid of any credence in the light of testimonies of PW1 Smt. Mamta Srivastava, PW2 Pratham and PW3 Prem Singh. Therefore, police witnesses were not supported by any independent witness in this case.
41. In view of the foregoing reasons and discussion, the prosecution has completely failed to bring home the charges under Section 454/392/397/34 IPC against the accused persons Sushil Kumar and Bhupender @ Chinu beyond reasonable doubt.
42. Now coming on to the case of the prosecution that accused Gautam Giri was found to have in his conscious possession one country made pistol (Katta).
43. PW8 HC Anil, PW10 ASI Rajender Prasad, PW14 HC Rajesh Kumar and PW15 SI Yogesh Kumar, all have stated that on 20032012, accused Sushil made a disclosure that Gautam Giri was the master mind of the operation and he can get him arrested. Accordingly, police officials apprehended accused Gautam Giri from Gali No.3, Karawal Nagar and on carrying out of his personal search, FIR No.41/12 PS Sonia Vihar Page No. 26/30 under Section 454/392/397/34 IPC & under Section 25 of the Arms Act SC/44251/2015 State Vs. Sushil Kumar & others he was found to have in his possession one desi katta of .315 inch bore. All the aforesaid police officials have identified the Katta Ex.PW8/P1 which was recovered from accused Gautam Giri.
44. PW11 Shri V.R. Anand, Assistant Director (Ballistics), FSL Rohini, Delhi in his statement made before the Court has stated that it is a firearm defined under the Arms Act.
45. The case of the prosecution that accused Gautam Giri was found to have in his possession one Katta .315 inch bore is not at all believable mainly on the following grounds;
(i) that no public witness had joined the investigation at the time of recovery of alleged katta.
(ii) PW8 HC Anil says that it was loaded whereas PW10 ASI Rajender Prasad had stated that no cartridge was found inside the katta. He also says that katta was recovered from the right side pocket of his pant whereas PW15 has stated that it was in the right dub of the pant.
FIR No.41/12 PS Sonia Vihar Page No. 27/30 under Section 454/392/397/34 IPC & under Section 25 of the Arms Act SC/44251/2015 State Vs. Sushil Kumar & others
(iii) The Sanction Order Ex.PW13/A says that accused persons namely "Gautam Giri S/o Anand Giri R/o Village & Post Makdi, Tehsil Siyana, District Buland Shahar, UP and Bhupender @ Chinu S/o Santram R/o House No.2, Gali No.1, CBlock, Khajuri Khas, Delhi were reported in their conscious possession of one country made pistol .315 bore".
46. It is not at all deciphered as to how one country made pistol is found in the conscious possession of two persons. The Sanction Order Ex.PW13/A on the face of it is bad in law. Though PW13 Shri Dheeraj Kumar, DCP, Supreme Court Security, Delhi in his statement has stated that the name of other accused Bhupender @ Chinu has been inadvertently and due to typographical mistake, is mentioned in the Sanction Order, yet the same will not in itself make the Sanction Order proper and correct. Thus, the Sanction Order passed by PW13 is not an effective and proper order against accused Gautam Giri.
47. In view of the foregoing reasons and discussion, the FIR No.41/12 PS Sonia Vihar Page No. 28/30 under Section 454/392/397/34 IPC & under Section 25 of the Arms Act SC/44251/2015 State Vs. Sushil Kumar & others prosecution has completely failed to bring home the charge under Section 25 of the Arms Act against the accused Gautam Giri beyond reasonable doubt.
CONCLUSION
48. Keeping in view the totality of the facts and circumstances of the case, the entire case of the prosecution crumbles down. Prosecution has completely failed to bring home the charges under Section 454/392/397/34 IPC against the accused persons Sushil Kumar and Bhupender @ Chinu and under Section 25 of the Arms Act against accused Gautam Giri beyond reasonable doubt. All the accused persons stand acquitted. Their Bail Bonds are cancelled and sureties are discharged.
49. Accused persons Sushil Kumar, Bhupender @ Chinu and Gautam Giri are directed to furnish fresh Bail Bonds in the sum of Rs.10,000/ (Ten Thousand) each with one surety in the like amount which shall remain in force for a period of six months in pursuance of Section 437(A) Code of Criminal Procedure. FIR No.41/12 PS Sonia Vihar Page No. 29/30 under Section 454/392/397/34 IPC & under Section 25 of the Arms Act SC/44251/2015 State Vs. Sushil Kumar & others
50. File be consigned to Record Room.
ANNOUNCED IN THE OPEN COURT Digitally signed by
DEEPAK JAGOTRA
ON 19th JANUARY, 2018 DEEPAK Location:
KARKARDOOMA
JAGOTRA COURTS, DELHI
Date: 2018.01.19
21:40:04 +0530
(DEEPAK JAGOTRA)
DISTRICT & SESSIONS JUDGE
NORTH EAST DISTRICT
KARKARDOOMA COURTS, DELHI
FIR No.41/12
PS Sonia Vihar Page No. 30/30
under Section 454/392/397/34 IPC
& under Section 25 of the Arms Act