Delhi District Court
State vs . Vikas Kumar & Anr. on 6 July, 2021
IN THE COURT OF SH. VISHAL SINGH, ADDITIONAL SESSIONS
JUDGE-03: WEST DISTRICT, THC, DELHI.
SC No. 57775/2016
State Vs. Vikas Kumar & Anr.
FIR No. 398/2009
U/s. 307/34 IPC & Sec. 25/54/59 Arms Act.
PS: Nangloi
JUDGMENT
1. Sr. No. of the case : 57775/2016
2. Date of Committal to Sessions : 08.02.2010
3. Name of the complainant : Sh. Ram Narain
4. Date of Commission of Offence : 05.10.2009.
5. Name and Parentage of Accused : 1. Vikash Kumar
S/o. Narain Singh, R/o. Village
Mundka, Nangloi, Delhi.
: 2. Ved Prakash @ Sonu @ Boxer
S/o. Raj Roop Dabas, R/o. Village
Rasulpur, Kanjhawla, Delhi.
6. Offence complained of : U/s. 307/34 IPC & Sec. 25/54/59
Arms Act.
7. Offence Charged : Accused Vikash Kumar Charged
U/s. 307/34 IPC and U/s. 25/54/59
Arms Act.
: Accused Ved Prakash Charged
U/s. 307 IPC.
8. Plea of Guilt : Not guilty.
9. Final Order : Acquitted.
SC No. 57775/2016
FIR No. 398/2009 State Vs. Vikash Kumar & Anr. Page No.1/37
10. Date on which Order Reserved : 27.02.2021
11.Date on which Order Announced : 06.07.2021
BRIEF FACTS AND REASONS FOR DECISION:
1. Gopal, the victim, was attending a customer on 05/10/2009 at around 10:00pm at his medical store (chemist shop) situated near his home in Amar Colony, Nangloi, Delhi, when accused persons came and fired at him multiple times with a pistol. The bullets pierced through his body and injured him on his thigh, abdomen and left forearm. The assailants fled from the spot after injuring the victim. Police arrested accused Vikash Kumar, the brotherinlaw of victim Gopal as the assailant who fired at Gopal. Accused Ved Prakash accompanied accused Vikash Kumar at the time of incident with common intention to fire at Gopal.
2. Detailed arguments were heard on charge from Ld. defence counsels and Ld. Addl. PP for State. Vide order dated 10/02/2010, the Court charged both the accused persons U/s. 307 IPC. Accused Vikash Kumar was additionally charged U/s. 25 Arms Act. The accused persons pleaded not guilty to the charge and preferred trial.
3. The prosecution lead evidence and examined 14 witnesses to bring home the charged offence against accused persons.
4. PW1 HC Satyawan, Duty Officer, deposed that in the intervening night of 05 06/10/2009 on receipt of rukka Ex. PW1/A, sent by SI Pratap Singh through HC Naresh, he registered the present FIR and made endorsement Ex. PW1/B on it. In this regard, he recorded DD No.2A and DD No.61A in Rojnamacha SC No. 57775/2016 FIR No. 398/2009 State Vs. Vikash Kumar & Anr. Page No.2/37 Register. He produced the DD Rojnamcha Register Ex. PW1/C. In cross examination by Ld. Defence counsels, PW1 replied that SI Pratap Singh left PS at 08:40pm vide DD No.50A dated 05/10/2009 for Bhutowali Gali, Nangloi, where some quarrel had taken place. He replied that he could not say anything about the interpolation of date and time on statement and rukka, mentioned in DD entry no.2A. He denied the suggestion that he registered false FIR at the instance of IO and, later, antetimed it.
5. (a) PW2 SI Kuldeep Singh, Incharge Crime Team, West District, deposed that on receipt of intimation from West District Control Room he alongwith Ct. Rakesh and Ct. Anil Kumar reached the spot i.e. D71, Amar Colony, Nangloi. He inspected the spot, lifted and seized the blood stains. He deposed that he saw two bullet shells at the spot and directed the IO to seize the same. He deposed that the spot was photographed by Ct. Rakesh Kumar. He prepared the crime scene report Ex. PW2/A bearing serial no. 823/09 and handed it over to the IO.
5.(b) In cross examination by Ld. Defence counsels, PW2 replied that SI Pratap Singh was already present at the spot when he reached there and they remained at the spot around 4550 minutes. He replied that the blood was lying inside as well as outside the shop i.e. within the range of 5 meters. He replied that one bullet shell was lying at a distance of about 3 meters i.e. outside the shop, while another was lying inside the shop in a plastic bucket. He replied that neither the sample blood/earth control nor bullet shell were sealed or seized in his presence. He replied that, perhaps, father (fatherinlaw?) of the owner of medical store was present at the shop at that time.
SC No. 57775/2016 FIR No. 398/2009 State Vs. Vikash Kumar & Anr. Page No.3/375.(c) Upon application U/s. 311 CrPC moved by accused, PW2 was again cross examined by Ld. Defence counsel for accused Vikash Kumar. In cross examination, PW2 replied that he reached the spot at around 12:50am and remained there till 02:00am. He replied that till the time he prepared crime team report Ex. PW2/A, the FIR was not registered regarding which column no.3 was left blank and in column no.5 PCR call was mentioned as 'the complainant'. He again stated that at that time he was not aware if FIR was registered and due to that reason column no.3 was left blank. He replied that he remained at the spot till 02:00am. He admitted that in column no.9 of Ex. PW2/A smaller words were written from point X to X, than the other words. He denied the suggestion that the last sentence i.e. "one bullet shell was found"
was written in big alphabates. He voluntarily stated that the small words were written due to shortage of space in column no.9 from point X to X. He denied the suggestion that he subsequently mentioned '2' at point Z and, thereafter, wrote 'bullet shell' and not 'bullet shells'. He replied that both the bullets had same Mark i.e. KP 03 9mm 27. He denied the suggestion that no. '2', written at point Z, in column no.11 from point Y to Y was added subsequently. He admitted that the writing from point Y to Y was slightly smaller than the other writing. He denied the suggestion that the crime team report was a result of due deliberations. He denied the suggestion that he manipulated and ante timed the crime team report.
6. PW3 HC Naresh deposed that on 05/10/2009 on receipt of DD No.61A he alongwith SI Pratap Singh reached Sonia Hospital, where IO saw MLC No.184/09 of one patient Gopal, who was already taken to OT and, therefore, they could not meet him. Sh. Ram Narain, fatherinlaw of patient Gopal met them in the hospital. He deposed that IO recorded statement of Ram Narain, SC No. 57775/2016 FIR No. 398/2009 State Vs. Vikash Kumar & Anr. Page No.4/37 prepared rukka and handed it over to him for registration of FIR. He deposed that after registration of case at PS, he reached the spot i.e. D71, Amar Colony, at the medical shop and handed over the original rukka and computer copy of FIR to IO. He deposed that when he reached the spot, the crime team, already called by IO, was clicking photographs of the spot. He deposed that the IO picked up two empty shells lying in the shop, blood in gauge, blood stained earth as well as earth without blood, seized the same vide Ex. PW3/A and sealed the case property with the seal of PS. Seal after use was handed over to PW3. A sealed parcel with Court seal containing two empty cartridges in a plastic jar was produced. PW3 identified the cartridges Ex. P2 (colly.) as the same lying on the spot.
In cross examination by Ld. Defence counsels, PW3 replied that IO handed over to him the rukka at about 12:20am and he reached police station at about 12:30am on foot. He replied that the distance between hospital and police station was one kilometer approx. He replied that the empty cartridges were sealed by IO in his presence as well as in the presence of crime team. He replied that he identified the cartridges as 9mm 2zkf05 and 9mm 2zkf was engraved on them. He replied that the PCR officials were also present in the hospital. He replied that he did not know if at 23:00 hours they knew about the assailants and at about 03:19am on 06/10/2009 they came to know about the assailants. He voluntarily stated that they came to know about the assailants when IO recorded statement of Ram Narain at 12'o clock and prepared rukka. He admitted that there was an overwriting of date and time at point X and Y on the rukka Ex. PW14/A. He replied that the crime team gave its report of scene of crime at around 02:45am on 06/10/2009. He denied the suggestion that the complainant and the person who fired the gunshot were unknown till 02:45am SC No. 57775/2016 FIR No. 398/2009 State Vs. Vikash Kumar & Anr. Page No.5/37 on 06/10/2009. He replied that the complainant was joined as a witness to recovery at the spot. He replied that he did not know if any memo regarding handing over of seal was prepared, however, he returned the seal in the evening of 06/10/2009. He denied the suggestion that he deposed falsely and signed all the documents at PS at much belated time and that the FIR was ante timed.
7. PW4 Ct. Rakesh Kumar deposed that on 14/10/2009 he joined investigation of the present case with IO SI Pratap Singh and reached at Firni Road Mundka, He deposed that on receipt of secret information regarding meeting of accused Vikash with his mother at Mundka Village, they, accompanied by secret informer, reached Mundka village and on the pointing out of secret informer apprehended accused Vikash. Accused Vikash was arrested vide memo Ex. PW4/A and was personally searched vide memo Ex. PW4/B. In his disclosure statement Ex. PW4/C, accused Vikash disclosed that he hid the pistol in a plot near a sheesham tree in Mundka village, which he could get recovered. He deposed that on 15/10/2009 he alongwith IO and the accused reached the plot of Vikash from where accused Vikash got a pistol recovered from near a sheesham tree and handed it over to the IO. He deposed that no cartridge was recovered with the pistol. Accused Vikash disclosed that he fired at his brotherinlaw (shadhu) Gopal with the said pistol as Gopal had illicit relations with his wife. Vikash also pointed out the place where he had fired at Gopal and a memo Ex. PW4/D was prepared in that regard. He deposed that the IO seized the recovered pistol Ex. PW4/E, sealed it with the seal of PS and prepared its sketch Ex. PW4/F. IO recorded his statement. He identified the recovered pistol Ex. P1 in Court stating that it was recovered from possession of accused Vikash and Automatic Pistol made in China 'NUZZZOO', was SC No. 57775/2016 FIR No. 398/2009 State Vs. Vikash Kumar & Anr. Page No.6/37 engraved on its barrel.
In cross examination by Ld. defence counsel, PW4 replied that he did not know if any DD entry was made on 14/10/2009 at PS regarding their departure to Firny Road, Mundka. He replied that the secret informer accompanied them from PS. He replied that he did not know if IO attempted to join any independent witness from the houses/shops at the spot. He admitted that there were many police booths on firny road (outside road around the whole village). He replied that he did not remember from which side of the two kilometer extended firny road accused Vikash was apprehended. He replied that accused Vikash was apprehended at around 07:45pm - 08:00pm from near a 'Dharamkanta', however, he could not give its location as the same was removed. He replied that IO recorded his statement on 14/10/2009. After going through the police file, PW4 denied to having made any statement U/s. 161 CrPC on 14/10/2009 to IO and stated that his statement was recorded no 15/10/2009. He denied the suggestion that accused Vikash was not arrested in his presence nor he gave any disclosure statement. He denied the suggestion that all the documents were antetimed and were signed by him subsequently. He replied that they left PS to go to place of recovery at around 03:00pm on 15/10/2009. He replied that they attempted to join independent public witnesses from the houses and shops near PS as well as from place of recovery, however none agreed. He denied the suggestion that no efforts were made to join public witnesses since the recovery was fake and they never visited Mundka. He denied the suggestion that accused Vikash himself surrendered at PS and his signatures were taken on memos as well as other documents.
8.(a) PW5/victim Gopal deposed that on 05/10/2009 at about 10:00pm he was SC No. 57775/2016 FIR No. 398/2009 State Vs. Vikash Kumar & Anr. Page No.7/37 present at the counter of his shop i.e. Abinav Medical Store, where his father inlaw Ram Narain came to see him, however, he saw him off and entered the shop. He deposed that when he was attending a customer at the shop, he noticed that his brotherinlaw (sadhu) i.e. accused Vikash stopped the motorcycle near his shop. He deposed that Vikash was accompanied by one person, who came just behind Vikash and stood near him. He deposed that he thought that Vikash was indicating towards him stating his associate that he (PW5) should not escape. He deposed that Vikash pulled out a gun and fired at him 23 times. He deposed that out of the gunshots, one hit him on his left forearm while 23 shots in his stomach resulting which it started bleeding and he hid himself under the counter. He deposed that his fatherinlaw rushed him to hospital. Accused Vikash had suspicion that PW5 had illicit relations with his wife. He deposed that he had no illicit relations with the wife of accused Vikash.
8.(b) In cross examination by Ld. defence counsel, PW5 replied that his fatherin law came to his shop at about 09:30pm and the incident occurred around 2530 minutes thereafter. He replied that at the time of incident his fatherinlaw was sitting inside the shop. He replied that he could not tell the name and description of the customer, however, he was a hale and healthy man, aged around 2530 years. He replied that he felt semiconscious when he was taken to hospital on a motorcycle and did not know when and where he became unconscious. He replied that he was taken to hospital on the motorcycle of one Monu @ Mannu. He deposed that Mannu was driving the motorcycle while he was sitting in the middle and his fatherinlaw Ram Narain was sitting behind him. He replied that there might have been blood stains on the clothes of Mannu and Ram Narain.
SC No. 57775/2016 FIR No. 398/2009 State Vs. Vikash Kumar & Anr. Page No.8/378.(c) PW5 replied that the offenders were not wearing the helmet. He replied that he was standing when he was shot. He replied that IO recorded his statement on 08/10/2009 and not on 10/10/2009. He replied that in his statement to police, he stated that on 05/10/2009 at 10:00pm he and his fatherinlaw Ram Narain were talking and both of them were standing behind the counter of his shop. He deposed that he stated to police in his statement Ex. PW5/DA that when he was attending a customer in his shop, accused Vikash came and faced him. He also stated he was taken to hospital on motorcycle (He was confronted with his statement Ex. PW5/DA wherein it was not so recorded). He replied that the bullet hit him near his right hip bone. He admitted that there were steps leading to his shop with a platform after two steps, having a counter of around 2½ feet on it. He replied that he could not say if Ram Narain raised alarm or tried to catch the assailants after he got injured. He replied that no public persons gathered after the incident. He replied that he did not know who called the police and the mobile number 9212216461 did not belong to him. He replied that he was unconscious when reached the hospital. He replied that he could not tell the exact time when he regained his consciousness, however it were morning hours. He denied the suggestion that as he regained his consciousness he refused to give his statement to police till 10/10/2009 since he did not want to depose the same version as that of Ram Narain. He replied that before recording of his statement, the police visited him once. He admitted that his statement was recorded on 17/03/2010 in CAW Cell. He replied that being a teacher as that of his wife in the same school, accused Vikash was acquainted with him and his wife, and they got accused Vikash married to his sisterinlaw Anuj Kumari. He admitted that an FIR U/s. 498A/406 IPC was registered against accused Vikash and his family. He replied that he was not aware about any complaint lodged between 2004 and 2008 by his sisterinlaw SC No. 57775/2016 FIR No. 398/2009 State Vs. Vikash Kumar & Anr. Page No.9/37 or his fatherinlaw against accused Vikash. He replied that on 18/03/2008 his sisterinlaw left her matrimonial home and had gone to her parental home.
8.(d) He replied that after getting discharged from the hospital, he was not taken to spot by the IO. He replied that at the time of recording of his statement on 08/10/2009, no other person was present in the hospital. He denied the suggestion that in his statement recorded on 08/10/2009, he did not tell that accused Vikash had fired at him. He denied the suggestion that at the time of closing his shop someone fired at him from behind, whom he could not recognize. He denied that he falsely deposed that his fatherinlaw Ram Narain was present at the spot at the time of incident and he took him to hospital. He denied the suggestion that his fatherinlaw deliberately deposed falsely and implicated accused Vikash. He replied that he had no illicit relations with his sisterinlaw namely Anuj and he occasionally met his sisterinlaw and father inlaw two years after separation of accused Vikash and his wife Anuj. He replied that no site plan was prepared by IO in his presence. He admitted that when he reached the hospital neither did he tell names of assailants nor his name, parentage and other particulars to the IO. He replied that even the doctor did not ask him that when, where and how he sustained injury. He admitted that no bullet was recovered from his body as it pierced through his body. He denied the suggestion that accused Vikash did not fire at him and he deposed falsely at the instance of Ram Narain and the police.
9.(a) PW6/complainant Ram Narain deposed that out of his three daughters he got his eldest daughter Anju married with Gopal (injured) who used to run a medical store. In December 2004, he got his second daughter Anuj Kumari married with accused Vikash, a drug addict and short tempered person, who SC No. 57775/2016 FIR No. 398/2009 State Vs. Vikash Kumar & Anr. Page No.10/37 remained suspicious of others and used to live in the company of criminals. He deposed that accused Vikash demanded dowry from him and his daughter and, on refusal, used to beat his daughter and had suspicion of illicit relation between Anuj Kumari and Gopal. He deposed that accused Vikash harassed his daughter Anuj Kumari for about two years and, thereafter, she started residing with him. He deposed that accused Vikash threatened to kill his family.
9.(b) PW6 deposed that on 05/10/2009 at about 08:00pm after meeting his daughter Anju at her matrimonial home at Amar Colony, he met Gopal at his shop at about 09:30pm. He deposed that at about 10:00pm two motorcycles came there, out of which one stopped near electric pole. Accused Vikash and his associate reached the shop of Gopal near counter and Vikash took out a pistol stating that "Esko Jaan se mar do, Esne Hamara Kehna Nahi Mana Bachna Nahi Chahiya". He deposed that Vikash started firing at Gopal resulting which Gopal sustained injuries and fell near the counter. Thereafter, accused Vikash and his associates fled from there on their motorcycles. He deposed that accused Vikash and his associate fired at Gopal with intent to kill him. He deposed that he with the help of local people rushed Gopal to Sonia Hospital. Police recorded his statement Ex. PW6/A. Thereafter, he alongwith the IO visited the spot and the IO called the crime team. Crime team photographed the spot. He further deposed that after registration of FIR IO received rukka, lifted two empty cartridges, blood sample, blood stained earth, earth control from the spot, seized them vide memo Ex. PW3/A and sealed them in different parcels with seal of PS. One parcel sealed with the seal of VRA FSL DELHI was produced by MHC(M), which contained one plastic jar having two empty cartridges in it.
SC No. 57775/2016 FIR No. 398/2009 State Vs. Vikash Kumar & Anr. Page No.11/37PW6 identified the empty cartridges Ex. P2 (Colly.) as the same seized vide memo Ex. PW3/A.
9.(c) In cross examination by Ld. defence counsels, PW6 replied that being a resident of Garhidullah, District Baghpat, U.P., he occasionally used to visit the house of Gopal. He replied that earlier he visited the house of Gopal around four months prior to the incident. He replied that on 05/10/2009 he reached the house of Gopal at around 08:00pm. He replied that his statement was read over and explained to him, and, after having gone through the same, he signed it. He replied that he told to police that he came down from the shop of Gopal and after talking to him for around 2530 minutes, left the shop for his home (he was confronted with his statement Ex. PW6/A wherein it was not so recorded). He replied that he was standing in front of counter of the shop of Gopal when two motorcycles came there. He replied that he stood at the very place till accused Vikash fired at Gopal. He replied that at the time of incident Gopal was standing inside the shop and was giving medicines to customer. He replied that Gopal sustained bullet injury on left side of his lower abdomen and left elbow. He replied that at the time of incident he was having mobile no. 9868514665. He replied that he heard sound of firing of two bullets, however many bullets were fired. He replied that at the time of firing the distance between Vikash and Gopal was about 45 feet. He replied that in his statement to police he stated that Vikash took out a pistol stating that "ISKO JANN SE MAR DO, ESNE HAMARA KEHAN NAHIN MANA, BACHNA NAHIN CHHAHIYE" (He was confronted with his statement Ex. PW6/A wherein it was not so recorded. However, it was recorded that Vikash came with three companions on two motorcycles and fired indiscriminately while stating that "TUNE HAMARA KEHNA NAHIN MANA. AB PARINAAM BHUGTO").
SC No. 57775/2016 FIR No. 398/2009 State Vs. Vikash Kumar & Anr. Page No.12/37He replied that he did not take injured Gopal to hospital on his motorcycle as he was holding Gopal. He replied that after hearing the firing sound two persons came at the spot, one of whom had motorcycle and, on request, the said motorcyclist rushed Gopal to hospital. He replied that the name of said motorcyclist was Manu, a resident of same locality, but he did not know his address. He replied that his trouser and shirt got smeared with blood while taking Gopal to hospital. He replied that he showed his blood stained clothes to police, however the police did not seize them. He denied the suggestion that his clothes were not blood stained and, that is why, not seized by police. He denied the suggestion that he did not accompany injured Gopal to hospital. He replied that police reached the hospital at about 11:00pm and his statement was recorded at around 12:05am. He replied that when police reached the hospital, Manu had already left the hospital. He replied that he alongwith police reached the spot at around 12:30am and remained there till 02:15am. He replied that one empty bullet shell was recovered from the road, while another was recovered from a bucket inside the shop. He replied that accused Ved Prakash was standing just behind accused Vikash at the time of firing. He replied that from 09:30pm to 02:15am he made no phone call to anyone about the incident. He denied the suggestion that he did not witness the incident as he was not present at the spot. He denied the suggestion that accused Ved Prakash was falsely implicated in the present case. He replied that he told description of accused Ved Prakash to police on the same day. He denied the suggestion that he wrongly identified accused Ved Prakash.
9.(d) PW6 replied that IO prepared the site plan on his own in his presence. He replied that he did not state to police in his statement that the site plan was prepared at his instance (he was confronted with his statement Ex. PW6/DA SC No. 57775/2016 FIR No. 398/2009 State Vs. Vikash Kumar & Anr. Page No.13/37 wherein it was so recorded from portion A to A). He replied that he could not say if the site plan Mark A was the same as prepared by IO at the spot. He replied that while preparing the site plan IO neither asked him about the place where the motorcycles were parked nor the place where Gopal was standing at the time of incident. He replied that while preparing the site plan Mark A by IO neither did he tell to IO that Gopal was sitting at the time of incident, nor showed him the electric pole at the spot. He replied that while preparing site plan neither did IO ask him nor did he tell about the directions of arrival as well as departure of assailants after the incident. He replied that while preparing the site plan IO did not ask him about the place of recovery of two empty bullet shells. He admitted that in his statement Ex. PW6/DA to police it was not mentioned that one empty bullet shell was recovered from outside the shop, while the other was recovered from a bucket inside the shop. He voluntarily stated that the bullet shells were recovered by the IO. He replied that he could not say how in his statement Ex. PW6/DA it was mentioned that "AAP NE MAUKA PAR PADE KHALI KHOL BHI UTHA KAR KABZA MEIN LIYA THA". He voluntarily stated that the IO seized two empty bullet shells from the spot. PW6 replied that his supplementary statement U/s. 161 CrPC dated 06/10/2009, Ex. PW6/DA was recorded at around 01:30am - 02:00am. He denied the suggestion that he was not present at the time of incident.
10.PW7 Ashu Garg, Metropolitan Magistrate, Tis Hazari Courts, deposed that on 30/11/2009 he was posted as Metropolitan Magistrate and was working as Link M.M. to the Court of Sh. Gaurao Rao, M.M., Delhi, and on that day IO moved application Ex. PW7/A before him regarding TIP of accused Ved Prakash @ Sonu. He deposed that accused was produced in muffled face and was SC No. 57775/2016 FIR No. 398/2009 State Vs. Vikash Kumar & Anr. Page No.14/37 identified by IO. He deposed that accused Ved Prakash was asked to participate in TIP proceedings, however he refused to do so stating that he was shown to the witnesses at PS. He deposed that despite warning that his refusal to participate in TIP would entail adverse inference against him during the trial, the accused was persistent in his refusal. The statement Ex. PW7/B of accused Ved Prakash was recorded. He deposed that he appended certificate regarding correctness of proceedings conducted by him. The copy of TIP proceedings Ex. PW7/A was supplied to IO on his application Ex. PW7/C. The TIP proceedings were sent to the concerned Court through Ld. CMM vide his endorsement Ex. PW7/D.
11.(a) PW8 HC Ravinder Kumar, MHC(M), deposed that on 06/10/2009 SI Pratap Singh deposited four pullandas duly sealed with the seal of PS to which he made entry no.5359 in register no.19, Ex. PW8/A. He deposed that on 15/10/2009 SI Pratap Singh deposited one pullanda duly sealed with the seal of PS to which he made entry no.5379 in register no.19, Ex. PW8/B. On 16/12/2009 SI Pratap Singh deposited one pullanda with sample duly sealed with the seal of ASH to which he made entry no.5471 in register no.19, Ex. PW8/C.
11.(b) He deposed that on 15/01/2020 he handed over four pullandas and sample seal to SI Pratap Singh to be deposited to FSL, Rohini, vide RC No. 11/21, Ex. PW8/D. On 22/03/2020, he handed over three pullandas and sample seal to SI Pratap Singh to be deposited to FSL, Rohini, vide RC No. 22/21, Ex. PW8/E. SI Pratap Singh deposited the pullandas to FSL and obtained acknowledgment.
11.(c) He deposed that on 26/08/2020 Ct. Mahender deposited the FSL result SC No. 57775/2016 FIR No. 398/2009 State Vs. Vikash Kumar & Anr. Page No.15/37 alongwith case property to him to which he made entry in register no.19. The FSL result was handed over to HC Atul to be deposited in Court. He deposed that on 06/08/2020 Ct. Mahender deposited the FSL result alongwith case property to HC Atul (MHCM) to which HC Atul made entry in register no.19 and handed over the FSL result to SI Santosh Kumar to be deposited in Court. He deposed that he could identify the handwriting and signature of HC Atul regarding his noting in register no.19. He deposed that during the period case property remained in malkhana, it was not tempered with by anybody in any manner.
11.(d) In cross examination by Ld. defence counsels, PW8 admitted that considerable space was left in register after making entries. He admitted that the previous entry no. 5359 was changed to entry no. 5358A. He denied the suggestion that entry no. 5359 was later inserted in considerable space left over after entry no. 5358A at the instance of IO.
12.PW9 Dr. Raj Kumar, Consultant Surgeon, Department of Surgery, Altius Sonia Hospital, deposed that on 05/10/2009 at about 10:20pm he examined patient Gopal, aged 40 years, who was brought in the aforesaid hospital with alleged history of bullet injury in abdomen and left forearm. On local examination, the patient was found conscious and oriented, sustaining following injuries:
i) Left iliac fossa entry wound
ii) Left hip entry wound
iii) Right inguinal region exit wound
iv) Left inguinal region exit wound
PW9 deposed that except portion X on MLC, he prepared his detailed SC No. 57775/2016 FIR No. 398/2009 State Vs. Vikash Kumar & Anr. Page No.16/37 report Ex. PW9/A. He deposed that on the same day i.e. 05/10/2009 patient Gopal was operated for abdominal wounds followed by Orthopedics operation for fixation of fracture of forearm and other injuries. Thereafter, the patient was shifted to ICU and remained there till 08/10/2009. He deposed that the patient was unfit for statement till 08/10/2009 at 09:15pm and was declared fit for statement on 09/10/2009 at about 08:00pm by physician Dr. Naveen. On 13/11/2009 he opined the nature of injuries from surgical side as grievous. The patient was given emergency treatment.
13.PW10 Dr. Bhagwat Prashad Sharma, Orthopedic Surgeon, Altius Sonia Hospital, deposed that on 05/10/2009 at about 10:20pm patient Gopal was brought to aforesaid hospital with alleged history of bullet injury in abdomen and left forearm. He deposed that he examined the patient after examination by Dr. Raj Kumar. He deposed that he found an entry wound of bullet nearly 2 x 3 cm on lateral aspect of mid forearm and an exit wound of bullet of nearly 2 x 3 cm on medial aspect of mid forearm with no active bleeding. He deposed that clinically there was fracture of forearm bone due to bullet injury and median nerve deficit (injury) on forearm also. On Xray of forearm, comminuted fracture of radius bone was found. He deposed that he prepared his detailed report Ex. PW10/A at portion X on MLC of patient. He deposed that Dr. Raj Kumar operated the patient for abdominal wounds and, thereafter, he conducted operation for fixation of fracture of forearm and other injuries. Thereafter, the patient was shifted to ICU. As per ortho record, PW10 found the nature of injuries as grievous and made endorsement in that regard at portion Y at Ex. PW10/A. In cross examination by Ld. defence counsels, PW10 admitted that due to fracture of forearm the nature of injury of patient was given as grievous.
SC No. 57775/2016 FIR No. 398/2009 State Vs. Vikash Kumar & Anr. Page No.17/3714.PW11 HC Satyapal deposed that on 22/11/2009 he alongwith accused Ved Prakash @ Sonu @ Boxer and IO reached village Mundka, Nangloi, Delhi, where at the instance of accused IO prepared pointing out memo Ex. PW11/A of place of occurrence. The accused also disclosed that he had left the motorcycle used in crime near canal near Bahadurgarh. They searched for the motorcycle but could not find it.
15.PW12 HC Chitranjan deposed that on 24/10/2009 he alongwith SI Bhramdev and Ct. Lalit joined raiding party in case FIR No. 184/2009, U/s. 25/54/59 Amrs Act and on that day at about 05:00pm at Nelson Mendela Road on pointing out of secret informer a Swift Car of white colour was stopped. The driver of the car tried to flee but was apprehended. On interrogation, the name of the driver was revealed as Ved Prakash @ Sonu and a katta alongwith four live cartridges were recovered from his possession. Accused Ved Prakash was arrested and he disclosed about his involvement in the present case too.
16.PW13 SI Brahamdev deposed that on 24/10/2009 he received secret information that accused Ved Prakash, who was wanted in several cases, would pass through Nelson Mandela Marg at about 05:00pm. He informed to his senior police officers about the secret information and formed a raiding party consisting of SI Sanjeev alongwith three Head Constables and two Constables. He deposed that they reached Nelson Mandela Marg and at about 05:00pm, a Car No. HR13D5320 was stopped and accused Ved Prakash was apprehended. On search of accused Ved Prakash, one deshi katta, four live cartridges and one pistol were recovered from his possession, and the car was found to be stolen one. He got a formal FIR No. 184/2009, PS Crime Branch, U/s. 25 Arms Act, registered and during investigation accused Ved Prakash SC No. 57775/2016 FIR No. 398/2009 State Vs. Vikash Kumar & Anr. Page No.18/37 disclosed about his involvement in the present case. He deposed that he informed police officials of PS Nangloi regarding involvement of accused Ved Prakash in the present case vide DD No.19A of PS Nangloi. He prepared copy of arrest memo Ex. PW13/A of accused Ved Prakash in case FIR No. 184/2009, U/s. 25/54/59 Arms Act, PS Crime & Railway.
17.(a) PW14 IO SI Pratap Singh deposed that on 05/10/2009, at about 10:25pm, on receipt of DD No. 61A, Ex. PW1/C, from Dr. Umesh regarding admission of patient Gopal in Sonia Hospital, Nangloi, with alleged history of gunshot injury, he alongwith HC Naresh reached the said hospital, where he found patient Gopal unfit for statement. One Ram Narain, fatherinlaw of patient Gopal, was present in the hospital. He deposed that he recorded statement Ex. PW6/A of Ram Narain, made endorsement Ex. PW14/A on it and sent HC Naresh to PS to get a formal FIR registered. Thereafter, he alongwith Ram Narain reached the spot i.e. B71, Amar Colony, near Durga Mandir, Mundka, and called the crime team. He deposed that he prepared site plan Ex. PW14/B at the instance of Ram Narain. Lot of blood and two cartridges were found lying at the spot. The blood, earth control, blood stained earth control and two empty cartridges were lifted from the spot, kept in different plastic containers and were converted into three sealed parcels with the help of white cloth. All the parcels Ex. 3/A were sealed with the seal of PS and were seized. He deposed that he also obtained crime team report Ex. PW2/A. He deposed that he searched for accused Vikash named by complainant, but in vain.
17.(b) PW14 deposed that on 10/11/2009 he recorded statement U/s. 161 CrPC of injured Gopal. PW14 deposed similar to PW4 Ct. Rakesh regarding arrest Ex. PW4/A of accused Vikash on 14/10/2009 at the pointing out of secret informer SC No. 57775/2016 FIR No. 398/2009 State Vs. Vikash Kumar & Anr. Page No.19/37 from Firni Road, Mundka, conducting of his personal search Ex. PW4/B, recording of his disclosure statement Ex. PW4/C, preparation of pointing out memo Ex. PW4/D on 15/10/2009 of place of occurrence and recovery of pistol at the instance of accused Vikash from underneath a shisham tree, situated in a plot at Firni Road, Mundka, Nangloi. He deposed that the pistol was found in a plastic envelope. He prepared sketch Ex. PW4/F of the recovered pistol. He deposed that the recovered pistol was an automatic one, made in China, engraved with the word NUZZZOO on front portion of its barrel. There was no cartridge inside the pistol. The pistol was converted into parcel with the help of white cloth, sealed with the seal of PS, seized vide memo Ex. PW4/E and was deposited with the MHC(M). He deposed that accused Vikash disclosed his associate as Ved Prakash, they searched for accused Ved Prakash but could not find him.
17.(c) PW14 deposed that on 26/10/2009 on receipt of information regarding arrest of accused Ved Prakash from PS Crime Branch, he obtained arrest documents of accused Ved Prakash from IO SI Braham Dev of Crime Branch and recorded his statement U/s. 161 CrPC. He deposed that he moved application before Ld. MM for issuance of production warrants of accused Ved Prakash and produced him before Ld. MM on 21/11/2009. He deposed that he interrogated accused Ved Prakash, arrested him in this case vide memo Ex. PW14/C, obtained his one day custody remand from Ld. MM and searched for the motorcycle used in the offence, however, the same could not be recovered. He deposed that on 22/11/2009, at the pointing out of accused Ved Prakash at place of occurrence, he prepared memo Ex. PW11/A, recorded disclosure statement Ex. PW14/D of accused Ved Prakash and again searched for the motorcycle used in the offence, however, it could not be recovered.
SC No. 57775/2016 FIR No. 398/2009 State Vs. Vikash Kumar & Anr. Page No.20/3717.(d) PW14 deposed that on 30/11/2009 TIP of accused Ved Prakash was fixed, however, the accused refused to participate in TIP and he obtained copy of TIP proceedings through application Ex. PW7/C. On 16/12/2009, he obtained result on MLC of injured Gopal, as per which the injury was grievous from surgical side. He deposed that on the same day Dr. Pradeep Aggarwal of Sonia Hospital also handed over to him a parcel sealed with the seal of ASH, containing clothes of injured Gopal, alongwith sample seal, which he seized vide memo Ex. PW14/E. He deposed that few days prior to 22/03/2010 he purchased four cartridges of 9mm bore from market with permission of the DCP, for test fire. He deposed that on 15/01/2010 he deposited four parcels, three were sealed with the seal of PS, while the fourth sealed with the seal of ASH, to FSL, Rohini, vide RC No.11/21. He further deposed that on 22/03/2010 he deposited pistol, empty cartridges and four purchased cartridges to FSL, Rohini, vide RC No. 22/21 and handed over their receipts to MHC(M). He filed FSL result Ex. PW14/F of ballistic department, biology division result Ex. PW14/G and serological report Ex. PW14/H. He deposed that since the FSL results were obtained after filing of charge sheet, the concerned SHO applied for permission U/s. 39 Arms Act.
PW14 identified the automatic pistol Ex. P1, made in China, engraved with the word NUZZZOO stating that the same was recovered at the instance of accused Vikash and four empty cartridges Ex. P2, lying at the spot.
17.(e) In cross examination by Ld. Defence counsels, PW14 denied the suggestion that injured Gopal was admitted in hospital by one Mannu. He denied the suggestion that Mannu was present in the hospital or at the spot, however, he intentionally did not record his statement. He denied the suggestion that he did SC No. 57775/2016 FIR No. 398/2009 State Vs. Vikash Kumar & Anr. Page No.21/37 not seize clothes of complainant Ram Narain as he was not present at the spot. He denied the suggestion that neither did he obtain CDR of the phone of complainant nor accused persons as it disclosed their correct location at the time of incident. He admitted that the parcel containing pistol was sent to FSL after a period of around three months because he had to take permission from PHQ to buy rounds of pistol as it were not available at that time. He denied the suggestion that he tempered the case property. He replied that accused Ved Prakash was produced before Ld. MM in muffled face. He replied that it was not necessary to mention on application moved for TIP that the accused was produced in muffled face. He denied the suggestion that accused Ved Prakash was falsely implicated at the instance of complainant to sort out matrimonial dispute of his daughter. He denied the suggestion that accused Ved Prakash was shown to complainant at police station during PC remand. He denied the suggestion that in his complaint the complainant gave no description of accused Ved Prakash. He denied the suggestion that he intentionally delayed the TIP.
17.(f) PW14 admitted that the intimation about the present case was received through PCR and ASI Umed Singh was present at PS Nangloi at the relevant time. He replied that he did not collect PCR record. He replied that he could not say that the identity of the person who fired at Gopal was not established till 23:56 hours on 05/10/2009. He denied the suggestion that upto 03:19 hours on 06/10/2009 the identity of the person who fired at Gopal was not established. He replied that he had no knowledge about the PCR Forms Mark PW14/DA, PW14/DB and PW14/DC in which it was specifically mentioned that till 03:19 hours on 06/10/2009 the assailants were unknown. He admitted that there was an overwriting of date at point B in statement Ex. PW6/A of complainant Ram Narain. He admitted that there were also overwriting of date and time at point SC No. 57775/2016 FIR No. 398/2009 State Vs. Vikash Kumar & Anr. Page No.22/37 X and Y on rukka Ex. PW14/A, regarding sending of rukka for registration FIR. He voluntarily stated that due to change of day, there was overwriting on date. He replied that report Ex. PW2/A was handed over to him by crime team officials on the same day at around 02:00am. He admitted that in column no.5 of Ex. PW2/A, name of the complainant was to be mentioned.
17.(g) He denied the suggestion that he had no complaint, therefore, no FIR was registered till 02:00am on 06/10/2009 and column no.3 was left blank while PCR call was mentioned in column no.5. He admitted that the portion from point X to X in column no.9 was smaller in writing than portion Y to Y of Ex. PW3/A. He denied the suggestion that portion X to X, Y to Y and Z were incorporated subsequently after due deliberation. He admitted that it was mentioned in column no.11 of crime team report that two bullet shells were having marks KP05 9mm 2Z KF94. He admitted that he did not tally the markings of bullet shells/empty cartridges with the crime team report. He replied that he purchased the bullets from market for sending to FSL for comparison with the recovered bullets. He admitted that as per document Ex. PW14/F, he sent three bullets to FSL for comparison. He denied the suggestion that he misused one of the four bullets and planted it on the accused. He replied that he did not file the purchase receipt of the bullets as he sent it to DCP office for reimbursement. He replied that neither did he remember the name and location of the shop from where he purchased the bullets, nor the date and month when he obtained permission from DCP/West to purchase them. He replied that he did not remember when he purchased the bullets or that he made any DD entry in that regard. He replied that he did not remember after how many days of purchase of bullets, he sent them to FSL for comparison. He replied that he did not remember if he deposited the purchased bullets in SC No. 57775/2016 FIR No. 398/2009 State Vs. Vikash Kumar & Anr. Page No.23/37 Malkhana, before sending the same to FSL. He replied that there was no document in judicial file regarding purchase of bullets and the numbers marked thereon. He stated that it was not mentioned in the zymni either. He replied that he did not know if sanction of prosecution U/s. 25 Arms Act was obtained in the present case. He denied the suggestion that FSL reports Ex. PW14/F and Ex. PW14/H were fabricated documents and were filed after due deliberation.
17.(h) PW14 replied that he did not obtain call detail record of complainant Ram Narain. He admitted that in rough site plan Ex. PW14/B relative positions of place where the assailants as well as complainant were standing, motorcycle was parked and the place from where the empty cartridges/bullets and blood were lying, were shown. He admitted that as per rough site plan the injured was sitting when he sustained gunshot injury. He replied that he made no inquiry from the neighbouring shops and houses in regard to the accident. He replied that the blood was recovered from inside the shop. He admitted that the exact place of recovery of cartridges, either from inside or outside the shop, was not mentioned in Ex. PW3/A. He replied that he could not give any reason as to why he did not mention in document Ex. PW3/A the particular place from where the recoveries were effected. He replied that he received no photographs from crime team and he was informed that the photographs were misplaced. He replied that he did not remember if complainant Ram Narain and injured Gopal had any mobile phone.
17.(i) He admitted that as per MLC injured Gopal was conscious and oriented with normal vitals. He replied that he did not ask Gopal the reason for not disclosing the name of culprits at the time of his examination in hospital. He replied that he did not remember which doctor had opined that patient Gopal was unfit for SC No. 57775/2016 FIR No. 398/2009 State Vs. Vikash Kumar & Anr. Page No.24/37 statement on 05/10/2009. He admitted that at portion A to A on MLC neither the date of declaring patient Gopal unfit for statement was mentioned, nor was it signed by any doctor. He denied the suggestion that endorsement on portion A to A on MLC Ex. PW9/A was fabricated. He replied that he did not remember if the patient was declared fit for statement on 10/10/2009. After going through the MLC, PW14 replied that the patient was declared fit for statement on 09/10/2009 at 08:00pm. He replied that patient Gopal refused to give statement on 09/10/2009 stating that he was not feeling well and got his statement recorded on 10/10/2009. He denied the suggestion that statement U/s. 161 CrPC of Gopal was result of due deliberations.
17.(j) PW14 replied that he did not remember if clothes of complainant Ram Narain had blood stains. He replied that he did not remember if he seized clothes of Ram Narain. He admitted that in rough site plan Ex. PW14/B, he did not show the position of complainant, assailants and the places from where the recoveries were effected. He voluntarily stated that he showed the position of injured. He replied that only one motorcycle and two assailants were involved in the incident. He replied that he did not remember if complainant had mentioned in FIR that two motorcycles and four persons were involved in the incident, however, after going through the rukka he admitted that complainant had mentioned that there were two motorcycles and four persons. He admitted that in his investigation he did not find the version of two motorcycles and four persons as correct. He admitted that on 11/10/2009 wife of Gopal and her relatives came to PS and stated that Vikas, Shravan and Naveen had fired at their brother Arvind. He replied that since no person was present near place of recovery, he did not attempt to join the public witnesses. He denied the suggestion that nothing was recovered at the instance of accused Vikash and SC No. 57775/2016 FIR No. 398/2009 State Vs. Vikash Kumar & Anr. Page No.25/37 the recovered pistol was planted upon him. He denied the suggestion that ballistic as well as serological reports were fabricated and were prepared after firing in air by him. He replied that he did not find any lead piece either from the spot or from body of injured. He stated that he could not say if any lead piece was recovered from person of injured at the hospital.
18.All the incriminating evidence that came on record in the deposition of prosecution witnesses was put in detail to the accused persons and their statements were recorded U/s. 313 CrPC. They denied all incriminating evidence and asserted that they were falsely implicated in the present case. Accused Ved Prakash did not lead defence evidence. However, accused Vikash Kumar examined five witnesses in his defence.
19.DW1 Rajesh Kalsi, Business Manager, Punjab Kesri, deposed that the newspaper Punjab Kesri did not publish any news regarding shooting at Medical Store on 06/10/2009. He deposed that he published newspaper Punjab Kesri from Jalandhar and Panipat and he had no concern with Punjab Kesri Delhi Unit, looked after by Sh. Ashwini Kumar Chopra.
20.DW2 Sunil Kumar, Nodal Officer, MTNL Bhawan, 9 CGO Complex, deposed that CDR older than one year was not available in their system as the same were preserved for a period of one year only followed up by purging of data in auto mode. He produced letter Mark A in that regard.
21.DW3 R.S. Rai, Manager Marketing, Veer Arjun, produced the newspaper Veer Arjun dated 07/10/2009, Ex. DW3/A. SC No. 57775/2016 FIR No. 398/2009 State Vs. Vikash Kumar & Anr. Page No.26/37 In cross examination by Ld. Addl. PP for State, DW3 admitted that he did not know name of the person who got the news published and when the request was made to publish the news.
22.DW4 Ct. Jai Karan, produced the register related to Right to Information applications, showing the entry of application at Sr. No.261, moved by accused Vikash regarding call details of CPCR dated 05/10/2009, Ex. DW4/B. He produced PCR Form No. 261/2012/2003/RTI Cell(AC1)/PCR dated 21/02/2012, Ex. DW4/A, containing covering letter of Rajesh Kumar, the then Public Information Officer. He deposed that at Sr. No. 456, accused Vikash had sought information under RTI Act and the same was supplied to him. He identified the documents Ex. DW4/C (colly.) issued from their office and the photocopy of register showing entry at Sr. No. 456, Ex. DW4/D. He deposed that the original file containing RTI alongwith application and other documents maintained in their office with regard to two applications were destroyed vide order no. 54285511/HAR/Br/PCR dated 16/05/2016, Ex. DW4/E. In cross examination by Ld. Addl. PP, DW4 admitted that he never dealt with RTI applications for supplying informations. He replied that he could not identify the signatures of Rakesh Kumar and Dheeraj Kumar who supplied information regarding aforementioned RTI.
23.DW5 ASI Sushil Kumar deposed that on 05/10/2009 he was Incharge PCR Van No. P71 and was on duty from 05/10/2009 at 08:00pm to 06/10/2009 at 08:00am. He deposed that they maintained a PCR logbook regarding receiving of PCR calls by PCR vehicle and whatever proceedings they conducted, were informed to headquarter as well as recorded in PCR logbook. He admitted his SC No. 57775/2016 FIR No. 398/2009 State Vs. Vikash Kumar & Anr. Page No.27/37 handwriting and contents of entries as the same recorded by him at page no.5 and 6 in PCR logbook, released by RTI. He deposed that the facts collected by him from the spot, were transmitted to HQ i.e. P1. He deposed that the original PCR logbook was destroyed vide order no. 17701844/Har/PCR Delhi dated 27/05/2013, Ex. DW5/A.
24.I have heard the detailed final arguments from both sides and analyzed the evidence carefully. Ld. defence counsels argued that the prosecution has miserably failed to bring home the charged offence against accused persons. Ld. Counsel for accused Ved Prakash argued that victim Gopal had not identified accused Ved Prakash as one of the assailants. Ld. Counsel for accused Vikash argued that prosecution witnesses falsely deposed about presence of accused Vikash at the spot during the incident and his involvement in the incident, whereas, IO planted fake recoveries and falsely examined PW6 Ram Narain as an eye witness.
On the other hand, Ld. Addl. PP argued that victim Gopal had no motive to screen the actual offender and falsely implicate the innocent person, especially when he had sustained serious gunshot injuries. Ld. Addl. PP submitted that accused Vikash Kumar had criminal antecedents as well as motive to commit the offence.
25.The appreciation of testimonies of witnesses and documentary evidence, lead to following observations:
(i) Date and Time of Recording of Statement of Victim Gopal:SC No. 57775/2016 FIR No. 398/2009 State Vs. Vikash Kumar & Anr. Page No.28/37
(i) (a) MLC Ex. PW9/A of victim Gopal reflects that he was conscious and oriented when he was taken to Sonia Hospital, Nangloi, Delhi, at 10:20pm on 05/10/2009. The MLC does not suggest that victim Gopal was unfit for statement when IO met him in the hospital. The words 'unfit for statement' mentioned at point A to A in MLC Ex. PW9/A does not bear date, time or signature of the person/doctor who mentioned the said words on it. In this regard, PW14 IO SI Pratap Singh admitted in cross examination that as per MLC of victim Gopal he was conscious, oriented and his vitals were normal when he was taken to hospital after the incident. He replied that he did not ask injured Gopal as to why he did not disclose the name of the culprit at the time of his examination in the hospital. He replied that he did not remember from which doctor he obtained the opinion on 05/10/2009 regarding the patient (Gopal) being unfit for statement. PW14 denied the suggestion that the endorsement 'unfit for statement' from point A to A in MLC Ex. PW9/A was a fabricated endorsement.
(i) (b) PW14 IO SI Pratap Singh stated that as per MLC Ex. PW9/A injured Gopal was declared fit to make statement on 09/10/2009 at 08:00pm but he refused to give statement even on that day saying that he was not feeling well and would give statement on next day. Injured Gopal gave statement on 10/10/2009
(i) (c) PW9 Dr. Raj Kumar deposed that on 05/10/2009 at about 10:20pm he had examined patient Gopal at Altius Sonia Hospital. On examination, he found the patient to be conscious and oriented. In these circumstances, non disclosure of name of the assailants and nongiving of statement by injured Gopal to IO on 05/10/2009 was not justified and subsequent fabrication of SC No. 57775/2016 FIR No. 398/2009 State Vs. Vikash Kumar & Anr. Page No.29/37 facts and events in statement dated 10/10/2009 was a distinct possibility.
(ii) Veracity of testimony of PW6 Ram Narain:
(ii) (a) PW6 Ram Narain is the fatherinlaw of victim Gopal. He stated that on the day of incident at around 08:00pm he went to the house of his daughter Anju. At around 09:30pm, he went to visit Gopal at his drug store (chemist shop), which was located near his home. He stayed with Gopal for around half an hour. When he was about to leave, his other soninlaw i.e. accused Vikash and his associate came there on two motorcycles and Vikash fired at Gopal with pistol to kill him. He stated that Gopal sustained gunshot wounds and he took Gopal to nearby Sonia Hospital with the help of a local person on his motorcycle. From the testimony of PW6 Ram Narain, the following deficiencies and contradictions become apparent and made his version suspicious
(ii) (b) PW6 stated that his trouser and shirt got smeared with Gopal's blood while taking him to hospital on motorcycle. He stated that he showed his blood stained clothes to police but they did not seize the same. He denied the suggestion that he was not present at the spot, neither did he accompany injured Gopal to hospital. In this regard, PW14 IO SI Pratap Singh replied that he did not remember if there were any blood stains on the clothes of complainant Ram Narain. He stated that he did not remember if he seized the clothes of Ram Narain. This was the most evasive and irresponsible reply of an IO.
(ii) (c) The MLC Ex. PW9/A of injured Gopal reflects that he was taken to SC No. 57775/2016 FIR No. 398/2009 State Vs. Vikash Kumar & Anr. Page No.30/37 hospital by one Monu and not by PW6 Ram Narain with whom Gopal had close relation. In usual course, the examining doctor would mention in MLC the name of the person having closest relation with the patient if more than one person is accompanying the patient. The name of a complete stranger to the patient would scarcely find mention in the MLC, as the person accompanying the patient, if a close relative is also accompanying the patient. It becomes more glaring when the court considers that the IO did not even record statement of Monu, although his address and telephone number was mentioned in the MLC. Neither patient Gopal nor the person (Monu) accompanying him told examining doctor about the name of the assailants.
(ii) (d) In his testimony, PW6 stated that the assailants came on two motorcycles - on one motorcycle accused Vikash and Ved Prakash came, whereas, they were accompanied by some other associates too on another motorcycle. Accused Vikash shot at Gopal with his pistol, after which accused Vikash and accused Ved Prakash fled on their motorcycle, whereas, their associates ran away on another motorcycle. In this regard, PW14 IO SI Pratap Singh deposed that as per his investigation only one motorcycle and two assailants were involved in the incident. He admitted that in his investigation he did not find the version of FIR regarding two motorcycles and four assailants to be correct. The testimony of IO discredits the testimony of PW6 Ram Narain.
(ii) (e) PW6 Ram Narain stated that he was standing just outside the shop of Gopal, on platform of the counter of the shop when accused Vikash came there and fired at Gopal, who was inside the shop and was attending a customer. He stated that accused Vikash came upto the platform of the shop and fired at SC No. 57775/2016 FIR No. 398/2009 State Vs. Vikash Kumar & Anr. Page No.31/37 Gopal from very close range. Accused Vikash, just like victim Gopal, was son inlaw of PW6 Ram Narain. Accused Vikash stood just adjacent to PW6 Ram Narain when he fired at Gopal. Strangely, PW6 did not blink when accused Vikash fired at Gopal, leave alone the question of attempting to prevent him from doing so or to apprehend him, or at least ask him why he fired at Gopal.
This observation renders presence of PW6 Ram Narain at the spot very doubtful.
(ii) (f) PW6 Ram Narain stated that he was carrying mobile phone at the time of incident but he did not call police or anyone else from his mobile phone after the incident at 10:00pm on 05/10/2009 till 02:15am on 06/10/2009. The conduct of PW6 Ram Narain does not match with that of an eye witness who just witnessed one soninlaw (Gopal) being fired at multiple times with pistol by another soninlaw (accused Vikash). The natural tendency of an eye witness in such situation, having such close relation with victim and the accused, would be to call police and relatives immediately after the incident or at least immediately upon reaching the hospital.
(iii) The lapses in investigation:
(iii) (a) As per prosecution case, a customer was present at the medical shop of injured Gopal at the time of incident. However, neither was his statement recorded by the IO nor was his identity disclosed in investigation. His statement would have been instrumental in elucidating the correct facts of the incident.
(iii) (b) The mobile call record of PW6 Ram Narain was not obtained by IO to SC No. 57775/2016 FIR No. 398/2009 State Vs. Vikash Kumar & Anr. Page No.32/37 prove that he was present at the spot. PW6 Ram Narain stated that he had a mobile phone on the date of incident. He happened to be present at the spot as a chance witness; he stated that he happened to visit the home of his daughter Anju on 05/10/2009 at around 08:00pm and stayed there till 09:30pm.
Thereafter, he went to the shop of his soninlaw Gopal to meet him. He was present with victim Gopal at his shop when the incident occurred at around 10:00pm. In his testimony, PW6 Ram Narain stated that on the date of incident he visited the house of Gopal after about four months of previous visit. Since PW6 Ram Narain was a chance witness, it was crucial to substantiate his presence at the spot through call detail record of his mobile phone. However, IO did not take care to obtain and place on record the mobile CDR of PW6 Ram Narain to substantiate his presence at the spot at the time of incident.
(iii) (c) Statement of Manu, who accompanied injured Gopal to hospital was not recorded by IO, although, his name and address were mentioned in MLC of injured Gopal.
(iii) (d) IO got the TIP of accused Ved Prakash conducted after taking his PC remand of 10 days and did not produce him in muffled face in the Court after completion of PC remand. Thus, accused Ved Prakash was justified in refusing to participate in judicial TIP.
(iii) (e) The record Ex. DW4/C i.e. PCR Form reflects that police control room was informed repeatedly from 11:16pm on 05/10/2009 till 03:19am on 06/10/2009 that the assailants who shot at victim Gopal were unknown. The rukka Ex. PW14/A was sent on 06/10/2009 at 12:20am on the statement of Ram Narain, who stated that accused Vikash had shot at victim Gopal. The SC No. 57775/2016 FIR No. 398/2009 State Vs. Vikash Kumar & Anr. Page No.33/37 FIR was registered at 12:35am on 06/10/2009. If police knew the name of assailants at 12:20am on 06/10/2009, it defies logic that as per PCR Form Ex. DW4/C, the name of assailants was unknown till 03:19am on 06/10/2009. The IO deliberately did not make PCR Form Ex. DW4/C part of his charge sheet. The circumstances indicate that FIR was not registered at least till 03:19am on 06/10/2009 and was antetimed at 12:35am on 06/10/2009 to cover the delay and planting of false eye witness/complainant Ram Narain.
(iii) (f) The genuineness of Crime Scene Report Ex. PW2/A is very doubtful. PW2 SI Kuldeep Singh prepared the Scene of Crime Report Ex. PW2/A at the spot on 05/10/2009. He stated that he reached the spot at around 12:50am and stayed there till 02:00am. He met IO SI Pratap Singh at the spot, who briefed him about the facts of the case. He stated that till the time he prepared the report Ex. PW2/A, FIR had not been registered because of which column no.3 of the report was left blank. He stated that the name of complainant was 'PCR Call'. The testimony of PW2 SI Kuldeep Singh is a reflective of the following two circumstances - 1. complainant Ram Narain was not present at the spot when crime team inspected the spot, and 2. FIR was not registered till at least 02:00am on 06/10/2009 and was antetimed at 12:35am on 06/10/2009. The police station was stated to be within one kilometer from the spot. It was not possible that FIR was registered at 12:35am on 06/10/2009 but crime team present at the spot was not informed of it till 02:00am on 06/10/2009.
(iii) (g) The Scene of Crime Report Ex. PW2/A bears suspicious additions related to recovery of bullet shell from the spot as also its make/mark. The column no.9 of the report Ex. PW2/A is reproduced thus: SC No. 57775/2016 FIR No. 398/2009 State Vs. Vikash Kumar & Anr. Page No.34/37
9. Remarks, if any Pt. reached to the hospital, only blood stains were present, One bullet shell was found, *outside shop & one inside the shop behind refrigerator in a small bucket.* It is observed that from the point * to * in column no.9, the words were added in small letters, in crammed spaces, which are different from the size of words used in the report. It leads to the indication that the report was tempered by way of interpolation regarding recovery of empty bullet shells - one from outside the shop and one from inside the shop, behind refrigerator in a small bucket.
(iii) (h) Similarly, the Scene of Crime Report Ex. PW2/A bears suspicious additions related to the number of bullet shell recovered from the spot and the mark engraved on it. The column no.11 of the report Ex. PW2/A is reproduced thus:
11. Exhibits which may be seized by IO 2 Bullet shell, blood, earth (Mark KP 03 9mm 27) control, any other important exhibit helpful in investigation.
The Scene of Crime Report Ex. PW2/A was prepared by PW2 SI Kuldeep Singh. PW2 was cross examined regarding the entry made at column no.11 of the report. It is observed that the numerical '2' was subsequently added before the word 'Bullet shell' in column no.11. Had it not been so, SI Kuldeep Singh would have mentioned the words '2 bullet shells' instead of '2 Bullet shell'. PW2 stated that both the seized bullet shells had the same mark i.e. 'Mark KP 03 9mm 27' on them. The Scene of Crime Report Ex. PW2/A and testimony of PW2 SI Kuldeep Singh do not match with the seizure memo SC No. 57775/2016 FIR No. 398/2009 State Vs. Vikash Kumar & Anr. Page No.35/37 Ex. PW3/A prepared by IO SI Pratap Singh at the spot. As per seizure memo Ex. PW3/A, two bullet shells were recovered at the spot, out of which one bullet shell had the mark '9mm 2Z KF 05' engraved on it, whereas, other had the mark '9mm 2Z KF 94' engraved on it.
Thus, there is fundamental difference between two material documents Scene of Crime Report Ex. PW2/A and seizure memo Ex. PW3/A, both of which were purportedly prepared at the spot and should have contained the same particulars of seized articles. In view of difference between the above mentioned two reports on material particulars, the recovery effected from the spot regarding number of bullet shells and the mark engraved on them, seems dubious. On the other hand, the planting of one used cartridge at the spot by the IO cannot be ruled out.
In the same breath, it is observed that the discharged bullet leads that caused firearm injuries to victim Gopal were neither recovered from person of victim Gopal nor were they recovered from inside his shop. On the other hand, the empty bullet shell could not have been found in a bucket placed behind refrigerator kept in the chemist shop of victim Gopal, unless planted there by someone since the assailant fired at Gopal from outside the shop.
(iv) Seizure of pistol planted upon accused Vikash:
(iv) (a) PW4 Ct. Rakesh Kumar and PW14 IO SI Pratap Singh deposed that pursuant to his arrest on 14/10/2009, accused Vikash disclosed that he had hidden the pistol used to commit offence, in a plot near a shisham tree in Mundka Village and he could get it recovered. On 15/10/2009, PW4 alongwith SC No. 57775/2016 FIR No. 398/2009 State Vs. Vikash Kumar & Anr. Page No.36/37 IO and accused Vikash reached at Firni Road, Mundka at the plot of Vikash.
The accused took them near a shisham tree and took out a pistol from under the ground and handed it over to the IO (seizure memo Ex. PW4/E). PW14 IO SI Pratap Singh deposed that upon digging, the pistol was found wrapped in a plastic envelope. On the other hand, in the seizure memo Ex. PW4/E of the pistol, it is mentioned that the pistol was found soiled/smeared in mud; there is no mention that the recovered pistol was found in a plastic envelope.
(iv) (b) Evidently, on 15/10/2009 IO knew that accused Vikash would take him to get his pistol recovered from under a tree. Still, IO did not join any independent witness at the time of crucial recovery of material evidence. In these circumstances, planting of recovery of pistol on accused Vikash cannot be ruled out.
26. In conclusion, the observation is inevitable that it is not a mere case of faulty investigation by the IO, there is strong element of falsehood by victim Gopal and alleged eye witness Ram Narain. The charge remained unsubstantiated and unproved by evidence. The accused persons are acquitted of the respective offences charged against them. However, they shall furnish fresh bail bonds U/s. 437A CrPC.
27.File be consigned to record room after completion of all necessary formalities.
Announced in the open court Dated 6th of July 2021 (VISHAL SINGH) ASJ03, WEST/DELHI SC No. 57775/2016 FIR No. 398/2009 State Vs. Vikash Kumar & Anr. Page No.37/37