Delhi District Court
State vs . on 10 July, 2014
1
IN THE COURT OF SH. RAJNISH BHATNAGAR,
ADDL. SESSIONS JUDGE -02, NORTH DISTRICT
ROHINI COURTS : DELHI
IN RE : Sessions Case No. : 39/2011
FIR No. : 405/2010
P.S. : South Rohini
U/s : 307/120 B IPC & 25/54/59
Arms Act
Date of registration : 28-05-2011
Reserved for Judgment on: 03-06-2014
Judgment Announced on : 10-07-2014
State
Vs.
1. Arun Kumar Mishra S/o Ram Avtar Mishra
R/o A-7, Sector-5, Ashok Vihar,
Gurgaon, (Haryana).
2. Anurag Srivastva @ Deepu
S/o Raj Kumar Srivastava
R/o Village Mahanand Pur,
P.S. Dehat Kotwali, District Sultanpur (U.P.)
3. Umesh Saini @ Bitto S/o Ram Singh Saini
R/o 533, Madanpuri, Gali No. 7,
Gurgaon, (Haryana)
4. Sandeep Shekhar S/o Om Prakash Yadav
R/o 1105/1, Dayanand Colony,
Gurgaon, Haryana.
5. Pankaj Dhama S/o Yad Singh Dhama
R/o 775 B, Block Palam Vihar,
Gurgaon, Haryana.
JUDGMENT
1. Briefly stated the present case was registered on the basis of the statement of complainant Shilpa Goyal D/o Sh. Nageshwar Goyal. According to the complainant she used to Sessions Case No: 39/11 Page 1 of 61 2 give aerobics training to the ladies by going to their homes. Two years before the date of the incident she used to work in a company at Gurgaon where a boy by the name of Arun Kumar Mishra used to come. According to the complainant after seeing her, Arun Kumar Mishra started forcing her to have friendship with him, otherwise he would kill her and her family.
2. According to the complainant due to fear she left the job of the said company and started giving aerobics training to the ladies near her house. But from somewhere Arun Kumar Mishra got her address and he again started stalking and threatening her almost daily. According to the complainant finding no way out, she disclosed all these things to her family and one and a half month prior to the date of the incident she lodged a complaint against Arun Kumar Mishra with PS Miya Wali.
3. According to the complainant on 15-12-2010, at about 10:45 a.m. she was going to the house of her maternal uncle (Mama) Neeraj Jain at Sector 3 Rohini on her scooty. When she stopped her scooty at a red light on Ring Road suddenly Arun Kumar Mishra came from behind and forcefully sat behind her on the scooty. He asked the complainant to listen to him and drive the scooty.
4. According to the complainant after the green light she started driving the scooty and on reaching near Jaipur Golden Hospital, Arun Kumar Mishra started saying to complainant that if she would marry him, he would not disturb her and if she did not agree to this, he would shoot her then and there. Due to fear complainant stopped her scooty there. She requested Arun Kumar Mishra to stop chasing her and let her go. On this, Arun Kumar Mishra took out a pistol type object and pointed on the Sessions Case No: 39/11 Page 2 of 61 3 back of complainant and said that "Tu To Manegi Nahi, Le Me Tera Kam Tamam Hi Kar Deta Hoo and saying this, he fired a gun shot on the lower part of her back. Complainant fell there with the scooty. Many public persons gathered there and some of the persons apprehended Arun Kumar Mishra and one or two persons lifted her and started taking her to Jaipur Golden Hospital and remaining persons started beating Arun Kumar Mishra. The complainant was got admitted in Jaipur Golden Hospital. PCR reached at the spot and Arun Kumar Mishra was handed over to the PCR officials alongwith the pistol, who took him to police station.
5. F.I.R. bearing No. 405/2010, was registered at P.S. South Rohini and investigation went underway. During the course of investigation accused persons were arrested. After completion of investigation final report u/s 173 Cr.P.C. was prepared and was filed in the court of Metropolitan Magistrate who after completing all the formalities committed the case to the court of sessions for trial.
6. On 27-07-2012, a charge U/s 120-B IPC and U/s 307 IPC R/w Section 120-B IPC was framed against all the accused persons and charge u/s 307 IPC and u/s 25/27 of the Arms Act was also framed separately against accused Arun Kumar Mishra to which they pleaded not guilty and claimed trial.
7. In order to prove the guilt of the accused persons, the prosecution examined as many as 46 witnesses.
8. PW 1 Ms. Shilpa Goel, injured/complainant and PW 2 Ajay Aggarwal are the material public witness of this case and I will discuss their testimonies in the later part of the judgment.
9. PW 3 H.C. Naveen Kumar deposed that he was Sessions Case No: 39/11 Page 3 of 61 4 posted at PS Miyawali Nagar and assisted in the reader office of the police station including the maintenance of the record. He brought the complaint register for the year 2010, one original complaint made by Sh. Nageshwar Dayal S/o Murli Goel R/o GH-12/28, Paschim Vihar, New Delhi dated 14-09-10 which was received vide Diary No. LC-898 dated 14-09-10. He further deposed that an entry in this respect was made in complaint register at serial No. 898 dated 14-09-10. He further deposed that the complaint was marked to H.C. Rajender who made report on 15-11-10. He proved on record the photocopy of complaint as Ex. PW 3/A and the copy of report of H.C. Rajender Singh as Ex. PW 3/B and the copy of relevant entry in register as Ex PW 3/C.
10. PW 3 also deposed that on 25-09-10 the complainant Nageshwar Dayal gave the reminder of the aforesaid complaint which had been entered at serial No. 938-A dated 25-09-10 in the complaint register. He further deposed that despite best efforts, the original could not be traced and he proved the photocopy of the said reminder/complaint dated 25-09-10 as Ex. PW 3/D and the copy of relevant entry in the complaint register as Ex. PW 3/E.
11. PW 4 is SI Praveen Kumar who on 15-12-10, on the receipt of DD No. 13-A, alongwith Ct. Naresh reached at the spot in front of Green Vales Public School, Public road, Opposite MTNL Office Sector-3, Rohini, Delhi. On reaching there he came to know that the injured was already shifted to Jaipur Golden Hospital. The person who had fired on the injured was apprehended at the spot and was given beatings by the public. PCR personnel had taken away that person to the police station.
12. He further deposed that Inspector Vijay Kumar Rastogi Sessions Case No: 39/11 Page 4 of 61 5 and H.C. Ashwani also reached at the spot. PW 4 further deposed that he alongwith Inspector Vijay Kumar Rastogi went to the hospital leaving H.C. Ashwani at the spot. They collected the MLC of injured Ms. Shilpa Goel. Statement of the injured was recorded and PW 4 was sent to the police station for the safe custody of accused.
13. PW 4 SI Parveen Kumar went to the police station where ASI Roop Chand, Incharge PCR van met him and handed over to him accused Arun Kumar Mishra alongwith one loaded pistol with a grey colour bag and stated that the weapon has been recovered from the accused. He further deposed that he handed over the pistol and grey colour bag to Inspector Vijay Kumar Rastogi and explained all the circumstances to him and produced accused Aruj Kumar Mishra before him. He further deposed that the pistol was inspected by Inspector V.K. Rastogi and its magazines contained eight live cartridges and one caratridge was stuck in Chamber. He further deposed that the sketch of the recovered pistol and live cartridges were prepared showing their measurement.
14. PW 4 further deposed that on checking the grey colour bag, it found to contain one country made pistol and three live rounds. The sketch of the aforesaid country made pistol and three live rounds was also prepared depicting their measurements. PW 4 further deposed that the recovered pistol alongwith nine cartridges turned into pullanda and the country made pistol alognwith three live rounds were also converted into pullandas. All the pullandas were sealed with the seal of VKR. PW 4 proved on record the seizure memo of pullanda containing pistol and nine live rounds as Ex. PW 4/A. PW 4 also proved on Sessions Case No: 39/11 Page 5 of 61 6 record the sketch of the pistol and nine cartridges as Ex. PW 4/B which bears his signature at point A. He further proved on record the seizure memo of pullanda containing country made pistol and three live rounds alongwith grey bag as Ex. PW 4/C. He further proved on record the sketch of the country made pistol and three live rounds as Ex. PW 4/D.
15. He further deposed that the FSL form was filled up at the spot. The seal after use was handed over to him. IO Inspector V.K. Rastogi prepared the rukka and handed over the same to the duty officer of PS South Rohini. He further deposed that accused Arun Kumar Mishra was arrested and his personal search was carried out vide memo Ex. PW 4/E and Ex. PW 4/F respectively. He further deposed that accused made his disclosure statement which he proved as Ex. PW 4/G.
16. PW 5 Ct. Manoj Kumar deposed that on 15-12-10, he was posted at PS South Rohini as Chittha Munshi and on that day HC Ashwani No. 3069 was deputed for picket duty at picket at Rohini Automobiles. He brought the original duty register and proved the copy of the same as Ex. PW 5/A. He further deposed that on the same day on the instructions of duty officer, he collected the copy of FIR of present case and original endorsement / rukka from duty officer and handed over the same to Inspector Vijay Kumar at the spot.
17. PW 6 H.C. Rajender deposed that in the year 2010 he was posted at PS Miyawali Nagar, Delhi. Two complaints of Sh. Nageshwar Dayal dated 14-09-2010 and 25-09-2010 were marked to him for necessary action. He further deposed that there were allegations in the said complaints made by Sh. Nageshwar Dayal that one Arun Mishra used to send bouquet Sessions Case No: 39/11 Page 6 of 61 7 and flowers to the house of Ms. Shilpa Goel. He further deposed that he contacted Arun Kumar Mishra on his phone and gave the strict instructions to him not to repeat the aforesaid act.
18. He further deposed that the complaint did not disclose any cognizable offence as such he had filed the aforesaid two complaints. He brought the complaint register mentioning the receiving of the aforesaid complaints. He proved the copy of the relevant entries as Ex. PW 6/A (complaint dated 14-09-10) and Ex. PW 6/B (complaint dated 25-0910). He further deposed that the complaint dated 14-09-10 is already Ex. PW 3/A and complaint dated 25-09-10 is already Ex. PW 3/D. He also proved on record the copy of his report regarding filing of the said complaints as Ex. PW 6/C.
19. PW 7 Ct. Sohanpal deposed that on 15-12-10, he was posted at BSA Hospital as duty constable and on that day Dr. Raj Mohan Trivedi CMOBSA Hosital had taken the swab recovered from the left hand of accused Arun Kumar Mishra, for the detection of gun powder in a plastic tube and one shirt worn by accused Arun Kumar Mishra. He further deposed that he handed over the said card board box containing the upper shirt of black colour and one plastic tube swab to IO Inspector Vijay Kumar. He further deposed that the parcel was sealed with the seal of SD. He proved on record the seizure memo as Ex. PW 7/A. He handed over one sample seal also to the IO which was taken into possession vide seizure memo which he proved as Ex. PW 7/B.
20. He further deposed that on 24-01-2011, while posted as such, accused Arun Kumar Mishra was again produced at the hospital and Dr. Vijay Dhankar had taken controlled swab from Sessions Case No: 39/11 Page 7 of 61 8 the right hand of accused Arun Kumar Mishra in the plastic tube which was converted into pullanda and sealed with the seal of BSA Hospital and he produced the same to IO Inspector Vijay Kumar alongwith the sample seal and the same had been taken into possession vide memo Ex. PW 7/C.
21. PW 8 Constable Dhunni Lal remained associated with the IO during the investigation of the case on 17-12-2010, 19-12- 2010 and further on 4-3-2011. He deposed about the sequence of investigation done by the IO in his presence on the said two dates. He proved on record search memo with regard to the search of house of accused Anurag as Ex. PW 8/A; notice U/s 160 Cr.P.C which was served on accused Anurag as Ex. PW 8/B; seizure memo of mobile phone produced by accused Pankaj as Ex. PW 8/C; arrest memo of accused Pankaj as Ex. Pw 8/D; his personal search memo as Ex. PW 8/E; his disclosure statement as Ex. PW 8/F; seizure memo of the mobile phone produced by accused Bittu @ Umesh Saini as Ex. PW 8/G; arrest memo of accused Umesh Saini @ Bittu as Ex. PW 8/H; his personal search memo as Ex. PW 8/J; his disclosure statement as Ex. PW 8/K; specimen handwriting of accused Arun Kumar Mishra consisting of three pages as Ex. PW 8/L, Ex. PW 8/M and Ex. PW 8/N; specimen signature of accused Arun Kumar Mishra as Ex. PW 8/O, Ex. PW 8/P and Ex. PW 8/Q; seizure memo of taking into possession the specimen handwriting and signatures of accused Arun Kumar Mishra as Ex. PW 8/R; supplementary disclosure statement of accused Arun Kumar Mishra as Ex. PW 8/S; seizure memo of photographs of Arun Kumar Mishra as Ex. PW 8/T and the photographs of Arun Kumar Mishra, Umesh Saini and Anurag as Sessions Case No: 39/11 Page 8 of 61 9 Ex. PW 8/A-1, Ex. PW 8/A-2 and Ex. PW 8/A-3 respectively.
22. PW 9 Ct. Naresh deposed that on 15-12-10, he was posted at PS South Rohini and on that day on the instructions of duty officer, he went to the area and handed over a copy of DD No. 13-A dated 15-12-10 Ex. PW 9/A to SI Praveen Kumar.
23. PW 10 H.C. Ram Niwas deposed that on 5-3-2011, he was posted at PS South Rohini as duty officer and on that day he recorded DD No. 17-A regarding the arrival of Inspector Vijay Kumar alongwith Ct. Dhunni Lal. He proved on record the attested copy of the said DD as Ex. PW 10/A.
24. PW 11 Dr. Manoj Dhingra is a material witness and I will discuss his testimony in the later part of the judgment.
25. PW 12 is SI Roop Chand who on 15-12-10 was posted as in-charge, PCR Van, outer Zone and on that day on the receipt of a call from Police control Room, PHQ at about 11:13 a.m regarding shooting of one girl by one boy near Jaipur Golden Hospital in front of Green Valley Public School, he reached there alongwith the staff. He further deposed that accused Arun Mishra was present there, whom public persons were beatings. He was carrying one pistol in his hand and one bag in another hand. He further deposed that to save the accused from public, he made accused sit in the PCR van and took the pistol and bag from the accused and took him to PS South Rohini. PW 12 further deposed that after some time SI Praveen reached there and PW 12 handed over to him the pistol which was loaded containing one round alongwith magazine containing eight rounds. The bag was having one country made pistol and three live rounds and same was also handed over to SI Praveen alongwith the accused.
Sessions Case No: 39/11 Page 9 of 61 1026. PW 13 Prem Prakash is the record clerk, PS Kotwali Nagar, Sultan Pur, U.P. Police. He brought the original GD No. 3 and 4 dated 18-12-10 PS Kotwali, Sultan Pur and proved the same on record as Ex. PW 13/A and Ex. PW 13/B respectively. He also brought the original GD No. 10 and 20 dated 4-3-2011 PS Kotwali, Sultan Pur and proved the copies of the same as Ex. PW 13/C and Ex. PW 13/D respectively. He also brought the original GD No. 4 and 9 dated 18-12-10 PS Kotwali Dehat, Sultan Pur and proved the copies of the same as Ex. PW 13/E and Ex. PW 13/F respectively.
27. PW 14 is Inspector Mukesh Kumar who in the month of September 2010 was posted at PS Miya Wali Nagar as SHO. He deposed about the complaints of Sh. Nageshwar Dayal dated 14- 09-10 and 25-09-2010 which were marked by him to H.C. Rajender for necessary action. The aforesaid complaints are already Ex. PW 3/A and Ex. PW 3/D. He deposed that the complaints were filed vide report Ex. PW 3/B as no cognizable offence was made out. He also deposed that Ex. PW 3/B bears his signature at point B.
28. PW 15 constable Harish Kumar is the photographer of the crime team who on 15-12-2010 reached at the spot where he took photographs of the spot. He brought the negatives of the photographs taken. He proved the same as Ex. PW 15/A-1 to Ex. PW 15/A-8. He also proved the positives of the photographs as Ex. PW 15/A-9 to Ex. PW 15/A-16.
29. PW 16 H.C. Virender Singh is the MHC(M). He deposed about the depositing of the exhibits of this case in the malkhana and the relevant entries made by him in this regard in register No.
19. He proved on record the entries made by him in register No. Sessions Case No: 39/11 Page 10 of 61 11 19 at serial No. 3826, 3866, 3883, 3902, 3613/11, as Ex. PW 16/A (collectively). He also deposed that on 14-01-2011, and on 25-01-2011 the exhibits had been sent to FSL Rohii vide RC No. 5/21/2011 and 9/21/2011 respectively through H.C. Ashwani but the same could not be deposited and H.C. Ashwani on his return handed over the exhibits to him.
30. He further deposed that on 27-01-2011, the exhibits of the present case were sent to FSL Rohini through HC Ashwani vide RC No. 10/21/2011who on return handed over the receipt to him. He proved on record the road certificate dated 14-01-2011, as Ex. PW 16/B; road certificate dated 25-01-11, as Ex. PW 16/C and the road certificate dated 27-01-11 as Ex. PW 16/D and the acknowledgment dated 27-1-11 as Ex. PW 16/E.
31. PW 17 is H.C. Bhajan Lal. He deposed that on 3-3- 2011, he was posted at PS South Rohini as duty officer. He further deposed that on that day at about 2:31 p.m Inspector (investigation) Vijay Kumar, PS South Rohini alongwith Ct. Dhunni Lal had left the police station in a private car bearing registration No. DL 2C AK 8191 alongwith driver Vinod Kumar of the said car regarding the FIR No. 405/10 U/s 307/120-B IPC and 25/27 Arms Act for outstation i.e Sultanpur UP and also regarding investigation in FIR No. 953/05 U/s 365/364/506 IPC . He further deposed that he recorded DD No. 26-A in the daily diary. He proved on record the copy of the same as Ex. PW 17/A.
32. PW 18 Dr. Manoj Sharma proved on record the discharge summary sheet of patient Shilpa Goel as Ex. PW 18/A which was prepared by senior resident Dr. Sanjay Chawra and bears his signature at point A. He also proved on Sessions Case No: 39/11 Page 11 of 61 12 record the photocopy of the operation Notes dated 15-12-10 of patient Shilpa Goel written by Dr. Ishwar Bohara in his presence as Ex. PW 18/B.
33. PW 19 SI Deepak Malik is the in-charge, Mobile Crime Team. He visited the spot on 15-12-10, inspected the place of occurrence and prepared his detailed crime team report and handed over the same to IO SI Parveen. He proved on record his crime team report as Ex. PW 19/A.
34. PW 20 H.C. Narender Singh was working as duty officer on 15-12-10 at PS South Rohini. He recorded various DD entries with regard to the present case and proved on record the same. He proved on record photocopy of DD No. 22 as Ex. PW 20/A; photocopy of DD No. 32 as Ex. PW 20/B; photocopy of DD No. 21 as Ex. PW 20/C and photocopy of DD No. 22 as Ex. PW 20/D.
35. PW 21 SI Somna was working as duty officer on 20- 12-10 at PS South Rohini. She also recorded various DD entries with regard to the present case and proved on record the same. She proved on record photocopy of DD No. 9 as Ex. PW 21/A-1; photocopy of DD No. 12 as Ex. PW 21/A; photocopy of DD No. 8 as Ex. PW 21/B and photocopy of DD No. 14 as Ex. PW 21/C.
36. PW 22 H.C. Santosh Kumar brought the summoned record i.e. DD No. 44-B dated 27-01-11 which is in the handwriting of lady Ct. Shashi Kala. He proved on record the photocopy of the said DD entry as Ex. PW 22/A. He also brought the summoned record i.e DD No. 10-A dated 27-1-11 and proved on record the photocopy of the same as Ex. PW 22/B; DD No. 17 dated 27-1-11, photocopy of the same is Ex. PW 22/C; DD No. 4 dated 17-12-10 and DD No. 19 dated 13- Sessions Case No: 39/11 Page 12 of 61 13 01-11, photocopies of the same are Ex. PW 22/E and Ex. PW 22/F respectively. He further deposed that the said DD entries were in the handwriting of H.C Madan Lal who has retired from the services. PW 22 identified his handwriting on the above mentioned DD entires.
37. PW 23 Smt. Seeta Devi deposed that her son Umesh Saini had got issued SIM card No. 9268316407 from Tata Cellular Company on her ID proof. She proved on record the photocopy of her original election voter I card as Ex. PW 23/A and Ex. PW 23/B (front and back).
38. PW 24 Sh. Hira Lal deposed that he never got issued SIM card No. 9289615207 from Cellular Company and this phone never remained with him. He further deposed that he used to apply for job and for this purpose he had to attach his ID proof i.e photocopy of his Voter I Card and his photograph. He has seen the photocopy of his Voter I Card Mark A in the judicial file and stated that the same is the photocopy of his original Voter I Card. He volunteered that the said photocopy might have been misused by any one. He also deposed that mark A does not bear his signatures at point A.
39. PW 25 Sunil Yadav in his examination in chief admitted that accused Sandeep Shekhar is the native of his village. However, he resides in Gurgaon. He further deposed that his statement was not recorded by the IO in this case. He further deposed that till 2011, he was doing mobile repairing work at shop No. 2, Sector 7 Gurgaon. He further deposed that mobile pone No. 9910104703 of Air Tel Cellular Co. was issued on his ID proof and this mobile phone was also used by accused Sandeep Shekhar and other employees of the shop. He had Sessions Case No: 39/11 Page 13 of 61 14 given photocopy of his drive licence as ID proof at the time of obtaining the SIM card mentioned above. The customer application form filled by him. Photocopy of the same Mark A bears his signatures. He proved on record photocopy of his driving licence as Ex. PW 25/A.
40. This witness was declared hostile and cross examined by the Ld. Addl. PP for the state but nothing material could be extracted from his cross examination.
41. PW 26 M.N. Vijayan is the Nodal Officer, Tata Tele Services Ltd. He proved on record the call details record pertaining to mobile No. 9289615207 w.e.f. 01-09-10 to 25-11-10 issued by his office during the course of investigation as Ex. PW 26/A. He also proved on record the call details of above mentioned phone w.e.f. 26-11-10 to 15-12-10 as Ex. PW 26/B. He also proved on record the photocopy of the customer application form obtained at the time of issuance of the said SIM card as Ex. PW 26/C which is in the name of customer Hira Lal.
42. He also proved on record the call details of mobile No. 9268316407 w.e.f. 01-09-10 to 25-11-10 as Ex. PW 26/D. He further proved on record the call details record of the said mobile phone w.e.f. 26-11-10 to 15-12-10 as Ex. PW 26/E. He further deposed that the said mobile phone was issued in the name of Smt. Seeta Devi W/o Sh. Ram Kumar R/o 471, Ward No. 21, Madanpuri Gurgaon. Photocopy of the same is Ex. PW 26/F and photocopy of the voter ID card is already Ex. PW 23/A and Ex. PW 23/B. He also proved on record the cell ID chart of Tata Tele Services of Delhi Circle as Ex. PW 26/G. He also proved on record the certificate U/s 65-B issued by the Nodal Officer Sh. Gaganjeet Singh regarding the issuance of the call Sessions Case No: 39/11 Page 14 of 61 15 details of above mentioned mobile phones as Ex. PW 26/H.
43. PW 27 R.K. Singh, is the Nodal Officer, Bharti Airtel Limited. He had seen the call detail pertaining to mobile no. 9910104703 for the period of 01.09.10 to 15.12.10 (running into 1079 pages). He had also seen the customer application form of above said mobile number already Mark A and ID proof Ex.PW27/A and deposed that the said SIM was issued in the name of Sh. Sunil Kumar Yadav S/o. Sribhagwan, H.No. 1105/1, Dayanand Colony, Gurgaon, Haryana.
44. He had also seen call detail pertaining to mobile no. 9958131424 for the period of 01.09.10 to 15.12.10 (running into 9 pages). He had also seen the customer application form of above said mobile number already Mark A and ID proof Ex.PW27/B and deposed that the said SIM was issued in the name of Sh. Sandeep Shekhar S/o. Sh. Om Prakash R/o. 1105/1, Dayanand Colony, Gurgaon, Haryana.
45. He had also seen the cell ID card of his company, Delhi Circle from the judicial file. He proved the same as Ex.PW27/C (188 pages). He had also seen two certificates issued u/s. 65-B Indian Evidence Act by Sh. Vishal Gaurav, Nodal Officer regarding the issuance of above mentioned CDR of two mobile phones mentioned above. He proved the certificate pertaining to 9910104703 as Ex.PW27/D. He also proved the certificate pertaining to 9958131424 as Ex.PW27/E. He identified the signatures of Sh. Vishal Gaurav on the above mentioned documents as he had seen him signing and writing during the course of his duty and he is working in the company.
46. PW 27 also brought the original customer application form of Sunil Kumar pertaining to mobile no. 9910104703 and he Sessions Case No: 39/11 Page 15 of 61 16 proved the certified copy of the same as Ex.PW27/X. The photocopy mentioned above is already marked as Mark A. He also brought the original customer application form of mobile no. 9958131424 issued in the name of Sandeep Shekhar and he proved the certified copy of the same as Ex.PW27/Y.
47. PW 28 Puneet Puri is the Senior Scientific Officer, FSL Rohini, Delhi. He examined the pistols and the cartridges which are involved in the present case. He also examined one swab and clothes of the injured Shilpa Goyal and also examined one control swab from the body of accused. After the examination of the said items, he prepared his detailed report in this regard and he proved on record the same as Ex. PW 28/A which bears his signature at point A. He also identified the case property.
48. PW 29 Pawan Singh is the Nodal Officer, Idea Cellular Limited. He had seen the call detail record i.e. certified copies pertaining to mobile phone no. 9911505157 and deposed that the said connection was issued by his company w.e.f. 11.09.10 to 15.12.10 and the same have been certified by him at each page at point A. He proved the said CDR as Ex.PW29/A (colly. - 22 sheets). He had also seen the Cell ID chart of his company of Delhi Circle and proved the same as Ex.PW29/B (53 sheets). He also proved on record the certificate U/s 65-B of Indian Evidence Act as Ex.PW29/C which bears his signatures at point A. PW 29 also brought original customer application form of above mentioned mobile number and deposed that the said SIM was issued to Pankaj Dhama S/o. Sh. Yaad Singh Dhama and customer had given the photocopy of his driving licence at the time of issuance of said SIM card. He proved the certified copy of customer application form as Ex.PW29/D and certified copy of Sessions Case No: 39/11 Page 16 of 61 17 driving licence of customer as Ex.PW29/E.
49. PW 30 Arun Singh, is the Nodal Officer, Uninor. He had seen the call details record pertaining to mobile no. 7398651773 from 01.09.10 to 10.01.11 from judicial file which were issued by the above mentioned Cellular Company. He proved the CDR as Ex.PW30/A (two sheets). He also proved the location chart of U.P. East Circle of said company as Ex.PW30/B (one sheet). He also proved on record the certificate u/s. 65-B of the Evidence Act pertaining to the issuance of the said CDR as Ex.PW30/C which bears his signatures at point A. He further proved on record the customer application form pertaining to the above mentioned mobile phone as Ex. PW30/D.
50. PW 31 Ram Avtar Mishra deposed that he is having his mobile no. 9005084558. However, he did not remember the mobile number of his son Arun Mishra (accused). He further deposed that no talks had taken place between him and his son on his mobile phone till today. He further deposed that he got issued his said phone on his ID.
51. This witness was declared hostile and cross examined by the Ld. Addl. PP for the State.
52. PW 32 is Raj Kumar Srivastava. He deposed that he is a cultivator by profession. He further deposed that accused Anurag Srivastava @ Deepu is his younger son. He further deposed that he does not know anything about the present case.
53. This witness was declared hostile and cross examined by the Ld. Addl. PP for the State.
54. PW 33 Dr. Kuldeep Singh is the CMO Dr. B.S.A. Hospital. He proved on record the MLC of accused Arun Kumar Mishra as Ex. PW 33/A; MLC of accused Umesh Saini @ Bittu Sessions Case No: 39/11 Page 17 of 61 18 as Ex. PW 33/B and MLC of accused Pankaj Dhama as Ex. PW 33/C. He deposed that all the said MLC's were prepared by Dr. Rajmohan Trivedi and he identified the handwriting of Dr. Rajmohan Trivedi on the said MLC's at point A.
55. PW 34 H.C. Ashwani remained associated with the IO of the case during the investigation of the case on 15-12-10 and further on 20-12-10 and he narrated about the sequence of investigation done by the IO in his presence on that said dates. He proved on record the supplementary disclosure statement of accused Arun Kumar Mishra as Ex. PW 34/A; pointing out memo of the place of occurrence pointed out by accused Arun Kumar Mishra as Ex. PW 34/B; sketch of the one broken plastic piece of pistol of Arun Kumar Mishra as Ex. PW 34/C; seizure memo of the said broken plastic piece of pistol as Ex. PW 34/D; sketch of the empty shell which was found at the spot as Ex. PW 34/E; seizure memo of the empty shell as Ex. PW 34/F; site plan of the place of recovery of the empty shell as Ex. PW 34/G; seizure memo of the 2 mobile phones got recovered by accused Arun Kumar Mishra as Ex. PW 34/H; site plan of the place of recovery of the mobile phone as Ex. PW 34/J; seizure memo of the note book got recovered by accused Arun Kumar Mishra as Ex. PW 34/K; site plan of the place of recovery of the note book as Ex. PW 34/L; seizure memo of the scooty of complainant Shilpa Goel as Ex. PW 34/M; arrest memo of accused Anurag as Ex. PW 34/O; arrest memo of accused Sandeep Shekhar as Ex. PW 34/P; personal search memo of accused Sandeep Shekhar as Ex. 34/Q; his disclosure statement as Ex. PW 34/R; personal search memo of accused Anurag Srivastava as Ex. PW 34/S; his disclosure statement as Ex. PW 34/T. This witness also Sessions Case No: 39/11 Page 18 of 61 19 identified the case property.
56. PW 35 Sh. Akhilesh deposed that he is an advocate by profession and practice in taxation in Sultan Pur. He further deposed that he did not remember the date month and year and perhaps it was 2010. At about 10 a.m he was present in his office situated near bus stand Sultan Pur. He further deposed that IO of the present case Inspector Vijay Kumar alognwith his staff met him in his office and gave him a notice U/s 160 Cr.P.C which was received by him. He proved on record carbon copy of the said notice as Ex. PW 35/A. He further deposed that he told the police that he knew nothing about the present case or any suspect/accused in the present matter. He further deposed that IO had obtained his signature on some blank papers. He further deposed that police had not recorded his statement in this case.
57. This witness was declared hostile and cross examined by the Ld. Addl. PP for the State.
58. PW 36 Dr. Gurdeep deposed that on 21-12-10, he was posted at Jaipur Golden Hospital as Medical Superintendent and on that day he had handed over one plastic container containing bullet led which was sealed with the seal of JGH in respect of two places, that led was taken out after surgery of injured Shilpa Goel, date of admission 15-12-10. He further deposed that he also sealed and signed on the said plastic container. He further deposed that the bullets were taken out by Dr. Manoj Sharma during operation. He further deposed that the aforesaid sealed container was taken by the police into possession vide seizure memo Ex. PW 36/A which bears his signature at point A.
59. PW 37 is Dr. Khushali Ratra. She had gone through the MLC of Ms. Shilpa Goel who was admitted on 15-12-10 in Sessions Case No: 39/11 Page 19 of 61 20 Jaipur Golden Hospital vide IP No. 10/241576 with the alleged history of gunshot injury on lower dorsen spine at D-12 level and he deposed that Dr. Ravi Shankar examined the injured vide MLC Ex. PW 38/A which is in his handwriting. PW 37 identified the signature of Dr. Ravi Shankar on MLC Ex. PW 38/A at point A and his name at point B. He further deposed that the nature of injury was declared as grievous.
60. PW 38 Inspector Vijay Kumar is the IO of the case. He unfolded the sequence of investigation done by him. He proved on record rukka prepared by him as Ex. PW 38/A; note book which was got recovered by accused Arun Kumr Mishra as Ex. PW 38/B; site plan of the place of recovery of the plastic piece which was produced by accused Arun Kumar Mishra from the spot claiming to be the piece of butt of the pistol as Ex. PW 38/C; site plan prepared at the instance of public witness Ajay Aggarwal as Ex. PW 38/D; application which was moved to obtain the specimen signature and handwriting of accused Arun Kumar Mishra as Ex. PW 38/D-1; Ex. PW 38/E vide which FIR No. 410/10 U/s 25/54/59 Arms Act was got registered by SI Imtiaz Alam who was directed to take action against accused Sandeep Shekahr who was found with illegal arm; seizure memo of the two mobile phones handed over by accused Sandeep Shekhar as Ex. PW 38/F; seizure memo of the mobile phone handed over by accused Anurag Srivastava as Ex. PW 38/G; seizure memo of the plastic jar containing one bullet led taken out form the body of Shilpa which was produced by Dr. at Jai Pur Golden Hospital as Ex. PW 38/H; seizure memo of the clothes of injured Shilpa Goel as Ex. PW 38/I; seizure memo of the record of previous complaints lodged by Nageshwar Dayal Sessions Case No: 39/11 Page 20 of 61 21 Goel, father of injured Shilpa against accused Arun Kumar Mishra in PS Miyawali Nagar as Ex. PW 38/J; application to provide the opinion regarding ammunition/cartridge used in this case to shoot the injured as Ex.PW 38/K; seizure memo of the pullanda sealed with the seal of SGMH alongwith sample seal and both the articles which was returned by the doctor after opinion as Ex. PW 38/K-1 and nine notices issued to the Nodal Officers of the Mobile phone companies to provide the call details record with ownership of the mobile numbers involved in the present case as Ex. PW 38/L-1 (Collectively).
61. PW 39 SI Avdhesh is the second IO of this case. He also unfolded the sequence of investigation done by him in this case. He proved on record the FSL report of physics division dated 06-02-12 as Ex. PW 39/A and sanction U/s 39 Arms Act as Ex. PW 39/B which bears the signature of Dr. P. Karunakaran and PW 39 identified his signatures as he had worked under him. PW 39 also analyzed the call details record of the accused persons and he further deposed about the investigation done by him in this regard. He also deposed that all the accused persons communicated with each other in pursuance of their common object of conspiracy. He collected DD No. 28-B dated 22-3-12 regarding deployment of H.C Ashwani, PS South Rohini on Rohini Automobile Picket Duty and he prepared a frequency chart of call details of all the accused persons attached with his supplementary charge sheet Ex. PW 39/C. He further deposed that statements of Sita Devi, Raj Kumar Srivastav, Pankaj Mishra, Ram Avtar and Hira Lal were recorded. After completion of investigation he prepared the supplementary charge sheet Ex. PW 39/C, pending FSL result from document division which Sessions Case No: 39/11 Page 21 of 61 22 was lateron received Ex. PW 38/A.
62. PW 40 Sh. Vijedner Singh is the SSO (documents), FSL Rohini, Delhi. He deposed that the documents forwarded in this case FIR No. 405/2010 PS South Rohini were received at FSL Rohini on 13-1-2011 and were marked to him for examination and opinion. The questioned documents were writings and signatures marked Q 1 to Q 24 Ex. Pw 38/B (colly) in a note book and the standards were specimen writings and signatures marked S 1 to S 6 of Arun Kumar Mishra Ex. PW 8/L, M, N, O, P & Q. He further deposed that he has carefully and thoroughly examined the documents with scientific instruments and different magnifying glasses and different lightening conditions and gave the opinion Ex. PW 38/M dated 23-04-2014 and observed that the persons who wrote the writing and signatures in the red enclosed portions S 1 to S 6 also wrote the writings and signatures in the red enclosed portions marked Q 1 to Q 24.
63. PW 41, SI Ravi Kumar deposed that on 10.05.2012, he was posted at PS South Rohini and on receipt of FSL report dated 23.04.2012 Ex. PW-38/M, connected with this case, he filed the original report alongwith the documents Ex. PW-8/L to Q, note book Ex. PW-38/B and the forwarding letter Ex. PW-41/A in the court vide application Ex. PW-41/B which bears his signatures at point A.
64. PW- 42, Israr Babu, is the Alternate Nodal Officer, Vodafone Mobile Service Ltd he had brought the summoned record of mobile no. 9953666268 which was in the name of Sandeep s/o Om Prakash. He proved the photocopy of customer application form as Ex. PW-42/A. He further proved the ID Sessions Case No: 39/11 Page 22 of 61 23 provided for the said connection which is the copy of driving licence as Ex. PW-42/A1 and the copy of the ration card as Ex. PW-42/A2. He also brought the call detail record of the aforesaid mobile phone for the period from 01.09.2010 to 15.12.2010, running into two pages, and proved the same as Ex. PW-42/B. He also brought the cell ID chart of Vodafone for Delhi and NCR running into 118 pages, and proved the same as Ex. PW-42/B1. He also brought the certificate U/s 65-B of the Indian Evidence Act, regarding the CDR, and proved the same as Ex. PW-42/C.
65. PW- 43 Sh. Parshu Ram Singh, is the Asstt. Director, Physics, FSL, Rohini, Delhi. He deposed that the exhibits forwarded in this case FIR No. 405/2010 PS South Rohini were received at Physics Department through Ballistic Division FSL, Rohini on 03.02.2012 and were marked to him for examination and opinion. Exhibits contained in two sealed parcels, seals were intact and tallied with the specimen seals as per forwarded note (FSL Form). One parcel marked 2 found contained one pistol, seven live cartridges, two cartridge cases and two fire bullets and another sealed parcel marked-4 contained one broken plastic piece. He further deposed that he examined and observed that broken plastic piece Ex. 4 was part of plastic portion of butt of pistol in Ex.2. After examining the exhibits, the same were sealed with the seal of PS, FSL Delhi and he prepared the report dated 06.02.2012 which is already Ex. PW-39/A and bears his signatures at point A.
66. PW 44 Sh. P. Karunakaran is the DCP South East District, Delhi. On 05-04-2012 he accorded sanction u/s 39 Arms Act in the present case which is already Ex. PW 39/B and Sessions Case No: 39/11 Page 23 of 61 24 bears his signature at point A for accused Arun Kumar Mishra for his prosecution U/s 25 Arms Act.
67. PW-45 Sh. Deepak Kumar Sinha is the Nodal Officer, BSNL, Mahanagar Telephone Exchange, Lucknow. He had gone through the call detail record of mobile no. 8004732464 for the period from 01.09.2010 to 15.12.2010, total 44 pages, and deposed that the aforesaid call detail record was duly attested as correct by Sh. V.K. Arora, who has now, been retired and he identified his signature on the said call detail record already Ex PW-32/X at point A. He further deposed that the certificate u/s 65-B in respect of the aforesaid call detail record was given by Sh. Sarsij Saurabh, DGMMS, Security and he identified his signature as he had worked with him. He proved the said certificate as Ex. PW-45/A. He further proved the BSNL site ID with location as Ex. PW-45/B. He further deposed that the aforesaid mobile number was alloted in a pre-activated form to the customer without filling any customer form and without taking any ID proof on 23.03.2010 as per the policy of the BSNL at that time. He further deposed that later on, BSNL started taking 'know your customer information' from the subscriber to whom the mobile number was alloted. But in this case, the said phone was deactivated and stopped operation on 26.03.2011. He further deposed that the requisite information for the subscriber could not be taken and as such is not available. He proved a certificate in this respect as Ex. PW-45/C which bears his signatures at point A.
68. PW 46 Sh. Surender Kumar is the Asstt. Nodal Officer, Idea Cellular Ltd. He had gone through the call detail record of mobile no. 9891680388 for the period from 01.09.2010 to Sessions Case No: 39/11 Page 24 of 61 25 15.12.2010, total 50 pages and deposed that the aforesaid call detail record was duly attested as correct by Sh. Pawan Singh, Nodal Officer, Idea Cellular Ltd., who is now, not available, he proved the said call detail record as Ex PW-46/A bears his signatures on each page at point A. He further deposed that the certificate u/s 65-B in respect of the aforesaid call detail record was given by Sh. Pawan Singh, Nodal Oficer, and he identified his signature as he has worked with him. He proved the said certificate as Ex. PW-46/B. He also proved the copy of the roaming area call detail record of the aforesaid mobile number, consisting of two pages as Ex. PW-46/C and the cell ID with location as Ex. PW-46/D. He also brought the original customer application form and the customer ID and deposed that the aforesaid number was allotted to Amit Bhardwaj s/o Rajender Bhardwaj and the subscriber provided copy of his passport. He proved the copy of the customer application form as Ex. PW-46/E and the copy of ID as Ex. PW-46/F.
69. After the closing of the prosecution evidence statement of accused persons U/s 313 Cr.P.C was recorded and all the incriminating evidence was put to them. Accused persons denied the same and stated that they are innocent and have been falsely implicated in this case and in addition to this, accused Arun Kumar Mishra also stated that he had an affair with Shilpa Goel and her parents were against their marriage so they have falsely implicated him in the present case. He also stated that he had not fired on the injured and all the case property has been planted upon him. No evidence in defence was led by the accused persons.
70. I have heard Ld. Addl.PP for the state and Ld counsels Sessions Case No: 39/11 Page 25 of 61 26 for the accused persons and have also gone through the records of the case.
71. It is submitted by the Ld. Addl. PP for the state that the allegations made against the accused persons are grave and serious in nature. It is further urged that accused Arun Kumar Mihsra had been consistently disturbing, threatening and stalking PW 1 Shilpa Goel. It is further urged by the Ld. Addl. PP for the state that PW 1 had filed complaints against the conduct of the accused Arun Kumar Mishra which were not to his liking. It is further urged that accused Arun Kumar Mishra had shot Shilpa Goel point blank on her spine and because of which she is nothing more than a vegetable. It is further urged that the testimonies of PW's Shilpa Goel, Ajay Aggarwal and the police officials who reached at the spot are totally believable. He further urged that the remaining accused persons had conspired with accused Arun Kumar Mishra in the commission of the crime. It is further urged that the prosecution has proved its case beyond reasonable doubt.
72. On the other hand, it is submitted by the Ld counsels for the accused persons namely Anurag Srivastava, Umesh Saini, Sandeep Shekhar and Pankaj Dhama that they have been falsely implicated. It is further submitted that there is not even an iota of evidence to show that they conspired with accused Arun Kumar Mishra in order to commit the alleged crime.
73. It is urged by the counsel for accused Arun Kumar Mishra that the allegations made by PW 1Shilpa Goel against the accused are false and frivolous. It is further urged that she did not raise any alarm when the accused allegedly sat on her scooty. It is further urged that the presence of PW 2 Ajay Sessions Case No: 39/11 Page 26 of 61 27 Aggarwal at the spot is doubtful. It is further urged that no public witness has been examined by the IO to show that the accused was apprehended at the spot. It is further urged that residues of the gun powder were not found at the hands of the accused which shows that he was not involved in the shooting incident. It is further urged that PW 1 and the accused Arun Kumar Mishra were having love affair. The family of the accused filed a false complaint against him and PW 1 has given the statement against the accused under the pressure of her family.
74. MOTIVE : Normally every criminal case has a motive behind it. In some cases the motive assumes importance but in some cases the motive pales into insignificance. In the present case the victim has deposed that accused Arun Kumar Mishra used to stalk her and used to pressurize her to marry him. The injured/complainant and her father have lodged complaints against accused Arun Kumar Mishra which has been deposed by PW 3, PW 6 and PW 27. The complaints were inquired into but since no cognizable offence was found to be made out, no action was taken against the accused.
75. It is pertinent to note here that at the time when this incident happened stalking was not an offence so no action was taken against the accused who used to send flowers and bouquet etc. to the house of the complainant/injured. So from the evidence on record, the accused could not take his rejection in his stride and also the refusal of the complainant to marry him did not go down well with him. It has also come in the evidence of the complainant that the accused used to give threat to kill her if she refused to marry him. So in these facts and circumstances, the prosecution has been able to prove that the accused Arun Sessions Case No: 39/11 Page 27 of 61 28 Kumr Mishra had the motive for the crime.
76. MATERIAL WITNESSES : Now coming to the material witnesses of this case. PW 1 Shilpa Goel (injured) is the most material witness of this case. She has deposed that at the time of the incident she was doing graduation and also used to give aerobic classes. She further deposed that about 2 years prior to the incident she was working in Gurgaon with Spenco Reliance GSM and there accused Arun Kumar Mishra used to stalk her. She has further deposed that accused used to go to her office and to her house and used to force her to have friendship with her. Because of the harassment given by the accused Arun Kumar Mishra she left the job at Gurgaon and started taking aerobic classes. She further deposed that the accused some how procured her address and mobile number from somewhere and he again started threatening her on telephone. The accused also used to threaten her that he would kill her father.
77. She has further deposed that accused made her life a hell and when things became unbearable she informed her father and then they made complaints to the police. She further deposed that on 15-12-10, at about 10:45 a.m she was going on her scooty to her Mama's place in Rohini where she used to teach aerobic. She stopped her scooty on a red light to her mama's place. At that time accused who was having a gun in his hand came from somewhere and sat on her scooty. He threatened to shoot her if she made noise and look here and there. She further deposed that accused had talked to someone on his mobile and gave instructions to keep the vehicle near her scooty and he directed her to drive her scooty.
Sessions Case No: 39/11 Page 28 of 61 2978. She further deposed that accused kept on insisting her for friendship and when they came near Jaipur Golden Hospital accused directed her to stop scooty and started pressurizing her to marry him. The complainant refused and on her refusal accused threatened her and asked her to take the scooty in a lonely place. The complainant has further deposed that she begged the accused to leave her alone but the accused put the gun on her back and started pressurizing her to marry him. When the complainant refused, accused shot her in her back. She fell down and the accused again tried to shoot her but his gun misfired. She was admitted to Jaipur Golden Hospital where her statement Ex. PW 1/A was recorded. She further deposed that the accused was apprehended at the spot by the public. She further deposed that as per the doctor she would not be able to walk in her entire life. She identified her clothes which she was wearing at the time of the incident. The clothes are Ex. P-1. (When the witness was being examined in the Court she started weeping on seeing accused Arun Kumar Mishra. The witness had come on a wheel chair and complained of severe pain.)
79. This witness was cross examined on behalf of accused Arun Kumar Mishra and in her cross examination she stated that she came to know accused Arun Kumar Mishra when he started stalking her. She further stated that accused had never visited her aerobic centre and also stated that she was not aware if her friend Shweta knew accused Arun Kumar Mishra. She denied the suggestion that she had introduced Ajay Sharma and Shewta to accused Arun Kumar Mishra. She further stated that accused Arun Kumar Mishra was harassing her about 2 yeas prior to the incident.
Sessions Case No: 39/11 Page 29 of 61 3080. She admitted it to be as correct, while she was working in Gurgaon she had not lodged any complaint against the accused with the police. She admitted it to be as correct that accused used to send bouquet to his house but denied the suggestion that she used to accept the same. She denied the suggestion that she and accused were have talks of marriage.
81. In a court question, she answered that she had to resign from her job in Gurgaon because of accused Arun Kumar Mishra. She stated that the red light on which the accused sat on her motorcycle was at a distance of about 5-7 minutes from her house and she could not tell the distance traveled by her on her scooty with the accused. She further stated that she had not raised any alarm though the road on which she was travelling was a busy road. She further stated that she had not seen the gun in the hand of the accused initially but she had seen the gun in the hand of the accused when she fell down and when the accused tried to shoot in her head which misfired. She further stated that she had not raised any alarm because accused had threatened her to shoot in that case. She denied the suggestion that she was having affair with the accused or that she was deposing falsely.
82. This witness was not cross examined on behalf of the other accused persons.
83. Another relevant witness is PW 2 Ajay Aggarwal. He deposed that on 15-10-12, he was present at his chemist shop which he was running under the name and style of Shiv Medical Store situated at B-6/187, Sector 3 Rohini, Delhi. He further deposed that at about 10:30 / 11:00 a.m he saw one young girl sitting on a scooty and one young boy was standing beside that Sessions Case No: 39/11 Page 30 of 61 31 young girl and they both were talking and he suddenly heard the shrieks of the girl and saw her falling down. He immediately rushed towards them and saw the girl had fallen down and the boy was trying to shoot her from the gun but it misfired. He identified the accused as the boy who shot her. He further deposed that accused was caught at the spot by the public and he shifted the girl to Jaipur Golden Hospital. He further deposed that he informed the police from his land line bearing No. 27515300.
84. In his cross examination on behalf of accused Arun Kumar Mihsra, he stated that one boy had shot a girl and he was also trying to shoot himself. In his cross examination he could not tell if the girl was bleeding but he stated that her lower body was not responding. He further stated that the colour of the scooty was pink. He denied the suggestion that he was not present at the spot.
85. This witness was not cross examined on behalf of the other accused persons.
86. Another material witness is PW 11 Dr. Manoj Dhingra who had examined one white neckless T shirt blood stained; grey neckless, thermal upper blood stained, black jacket (with collar) blood stained. After examining the 3 exhibits, he opined that the defects in the 3 clothes corresponded with each other and also opined that the defects in the clothes appear to correspond to the injury mentioned in the MLC in terms of site of the injury.
87. This witness was not cross examined and he clearly opined that the defects/marks in the clothes worn by the complainant / injured at the time of the incident corresponded Sessions Case No: 39/11 Page 31 of 61 32 with the injury received by her which goes to show that she was wearing the 3 clothes at the time of the incident.
88. Another material witness is PW 18 Dr. Manoj Sharma who has deposed that on 15-12-10, one patient Shilpa Goel was admitted in Jaipur Golden Hospital with the alleged history of gunshot injury at dorsal spine. He further deposed that on examination, he found the patient completely paraplegic in lower half of her body with total loss of control over stool and urine. She was operated upon in the emergency. He further deposed that the bullet lead was removed and was handed over to the authorities. He further proved the discharge summary of the complainant as Ex. PW 18/A.
89. This witness was cross examined by the counsel for accused Arun Kumar Mishra. The Ld defence counsel has put the following question to the witness :
Question : I put it to you that after going through the condition of injured, can you say about the fact that from how much range, the bullet received by the patient was fired? Ans. From very close range probably from within inches from the body.
90. This witness was not cross examined on behalf of the remaining accused persons.
91. Another relevant witness is PW 28 Sh. Puneet Puri from F.S.L. He proved his report as Ex. PW 28/A. In his report he opined that on examination he found that the country made pistol marked Ex.F1 was in working order. Test fire was conducted successfully by using the cartridge marked Ex.A1 and Ex.A2. The cartridge Mark Ex.A3 was misfired one. The improvised pistol Mark Ex.F2 was in working order. Test fire was conducted Sessions Case No: 39/11 Page 32 of 61 33 successfully by using the cartridges Ex.A4 and Ex.A5, the test fired cartridge cases were marked as TC1, TC2 and two recovered test fired bullets were marked as TB1 and TB2. The cartridge mark Ex.EC1 was fired empty cartridge and no further opinion could be possible due to insufficient data. The bullet mark Ex.EB1 was corresponding to the bullet of 7.65 mm cartridge and had been discharged through the improvised pistol mark Ex.F2 as the individual characteristics of striations present on evidence bullet Ex.EB1 and test fired bullet mark Ex.TB1 and TB2 were found identical when examined under the comparison microscope.
92. He further opined that on the basis of physical examination, microscopic examination and gun shot residue particle analysis the holes' mark H1 on the left lower portion of jacket Mark Ex.C2, H2 on the left lower portion of back side of T shirt Mark C3 and H3 on the left lower portion of back side of inner mark Ex.C4 had been caused by a bullet discharged through a firearm. No opinion could be given on swab mark S1 and shirt mark Ex.C1 due to insufficient data. The country made pistol mark Ex.F1 and improvised pistol mark Ex.F2 were firearms and the cartridges mark Ex.A1 to A12, the cartridge case mark Ex.EC1 and the bullet mark Ex.EB1 were ammunition as defined in Arms Act, 1959. He also identified the case property.
93. In the cross examination on behalf of accused Arun Kumar Mishra, he stated that both the weapons were in working condition.
94. PW 34 H.C. Ashwani is the witness of apprehension of accused Arun Kumar Mishra. He has deposed that oin 15-12-10, at about 11:10 a.m he was going towards Jaipur Golden Sessions Case No: 39/11 Page 33 of 61 34 Hospital on patrolling from the picket side and reached near MTNL office. He heard the noise as well as firing from the side of Green Vell Public School. He found a crowed gathered there and the public persons were trying to apprehend one person who was carrying a pistol in his hand. The said person was beaten and apprehended by the public and in the meanwhile PCR van reached there. He further deposed that the said person was handed over to the PCR alongwith the pistol who was taken to P.S. South Rohini. He identified accused Arun Kumar Mishra as the same person who was apprehended and beaten by the public.
95. He was cross examined by the Ld. defence counsel for accused Arun Kumar Mishra. In the cross examination he had stated that he had not noticed blood stains at the spot. He stated that he remained at the spot for about two and half hours. He denied the suggestion that nothing was recovered from the accused.
96. He was cross examined on behalf of accused Pankaj Dhama and denied that no accused was arrested on the pointing out of accused Pankaj Dhama. He was also cross examined on behalf of accused Anurag Srivastav and accused Sandeep Shekhar and he denied the suggestion that accused was called in the police station on 19-12-10, and then his arrest was shown as 20-12-10.
97. PW 36 is Dr. Gurdeep. He has deposed that he had handed over the bullet which was taken out by Dr. Manoj Sharma after the surgery of Shilpa Goel to the IO who seized the same vide memo Ex. PW 36/A. PW 37 Dr. Khushali Ratra, has opined the injury on the complainant as "grievous".
Sessions Case No: 39/11 Page 34 of 61 3598. PW 12 SI Roop Chand is the in-charge, PCR Van, outer zone. He deposed that on 15-12-10 on the receipt of a call from Police control Room, PHQ at about 11:13 a.m regarding shooting of one girl by one boy near Jaipur Golden Hospital in front of Green Valley Public School, he reached there alongwith the staff. He further deposed that accused Arun Mishra was present there whom public persons were beatings. He was carrying one pistol in his hand and one bag in another hand. He further deposed that to save the accused from public, he made accused to sit in the PCR van and took the pistol and bag from the accused and took him to PS South Rohini. PW 12 further deposed that after some time SI Praveen reached there and PW 12 handed over to him the pistol which was loaded containing one round alongwith magazine containing eight rounds. The bag was having one country made pistol and three live rounds and same was also handed over to SI Praveen alongwith the accused.
99. This witness was not cross examined on behalf of accused Arun Kumar Mishra and also on behalf of remaining accused persons. So his testimony has gone unrebutted and unchallenged with regard to the fact that accused Arun Kumar Mishra was present at the spot and was carrying one pistol in his hand and one bag in another hand. He was apprehended and beaten by the public at the spot and to save the accused from public PW 12 SI Room Chand made accused sit in the PCR van and took the pistol and bag from accused and took him to PS South Rohini.
100. Now analyzing the testimonies of the above mentioned witnesses, the prosecution has been categorically able to prove Sessions Case No: 39/11 Page 35 of 61 36 that it was accused Arun Kumar Mishra who had shot the complainant Shilpa Goel from point blank range. The complainant has categorically deposed that she was being stalked by the accused and because of which she left her job at Gurgaon. The complainant has also deposed that accused Arun Kumar Mishra got at her scooty when she was waiting at a red light and thereafter he shot her on her back at point blank. PW 18 Dr. Manoj Sharma has corroborated the testimony of the complainant when he stated in a question put to him by the Ld counsel for accused Arun Kumar Mishra that the shot was fired from inches. PW 11 Dr. Manoj Dhingra had also deposed that the bullet marks/defects on the clothes worn by the complainant on the day of the incident correspond with the place of injury mentioned in the MLC Ex. PW 38/A of the complainant.
101. So both these doctors have corroborated the testimony of the complainant (PW 1) in toto. It was vehemently argued by the Ld defence counsel that no blood stains were found on the ground. In my opinion, this argument has no force in it because the injured on the date of the incident was wearing one white neckless T shirt; grey neckless thermal upper; black jacket (with collar) which were very heavy clothes and for the blood to come out from these clothes and stain the ground would require much time but before that the complainant was removed to the hospital and because of this the blood did not come out from her clothes so as to stain the ground.
102. It was also argued by the Ld defence counsel for accused Arun Kumar Mishra that no traces of gun powder residues were found on the hands of accused Arun Kumar Mishra. This argument has also no force in it because we all Sessions Case No: 39/11 Page 36 of 61 37 aware about the manner of scientific investigation which is done in criminal cases. Even otherwise, this case does not rests only on circumstantial evidence in which the finding or not find of the traces of gun shot residues on the hands of the accused could be of some importance. This case rests on the eye witness testimony of the complainant, the accused was apprehended at the spot and his apprehension at the spot has been corroborated by PW 2 Ajay Aggarwal, PW 34 H.C. Ashwani and PW 12 SI Roop Chand (In-charage PCR Van).
103. It was argued by the Ld defence counsel for accused Arun Kumar Mishra that PW 2 is a planted witness because he has admitted that he had not seen blood at the spot and also that DD No. 13 Ex. PW 9/A speaks that "Ek Ladke Ne Dusre Ladke Ko Goli Mar Di Hai Aur Apne Apko Bhi Goli Mar Raha Hai."
104. Now as far as not seeing the blood stains at the spot is concerned, I have already discussed the reasons above in the judgment. As far as contents of DD No. 13 Ex. PW 9/A is concerned, may be the witness was in some doubt in the beginning but the facts which have emerged from the testimony of the witnesses itself clears that the complainant was shot by the accused who was apprehended at the spot with the pistol.
105. PW 37 Dr. Khushali Ratra has opined the injury on the complainant as "grievous" in nature.
106. So from the discussions mentioned hereinabove, it is crystal clear that it was accused Arun Kumar Mishra who had shot the complainant on her back from the close range and he was apprehended at the spot alongwith one pistol and nine live cartridges and one country made pistol with three live cartridges which he used in the commission of offence by firing on Sessions Case No: 39/11 Page 37 of 61 38 complainant Shilpa Goel which he kept without any licence in contravention of Notification issued by Government of NCT of Delhi.
107. Therefore, in view of the discussions mentioned hereinabove, I am of the considered opinion that the prosecution has been able to prove its case beyond all reasonable doubts against accused Arun Kumar Mishra. Accused Arun Kumar Mishra is, therefore, held guilty and convicted U/s 307 IPC and U/s 25/27 of the Arms Act.
108. Now it is to be seen whether the remaining accused persons conspired with accused Arun Kumar Mishra in executing the crime. Conspiracy is defined in Section 120 A of the IPC which reads as follows :
"120-A. Definition of criminal conspiracy.- When two or more persons agree to do, or cause to be done,-
(1) an illegal act, or (2) an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy:
Provided that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof.
Explanation : - It is immaterial whether the illegal act is the ultimate object of Sessions Case No: 39/11 Page 38 of 61 39 such agreement, or is merely incidental to that object."
109. Section 120-B IPC provides for the punishment of criminal conspiracy.
110. On behalf of the remaining accused persons, it was argued that they have been falsely implicated and they have no role to play in the alleged offence. It is further urged that there is no evidence on the record to state that there existed a criminal conspiracy between accused Arun Kumar Mishra and remaining co-accused persons.
111. The elements of a criminal conspiracy have been stated to be : (a) an object to be accomplished, (b) a plan or scheme embodying means to accomplish that object, (c) an agreement or understanding between two or more of the accused persons whereby they become definitely committed to co-
operate for the accomplishment of the object by the means embodied in the agreement, or by any effectual means The essence of a criminal conspiracy is the unlawful combination and ordinarily the offence is complete with the combination is framed. This has been held in Devender Pal Singh Vs. State of NCT of Delhi 2002 SCC (Cri) 978.
112. To bring home the charge of conspiracy within the ambit of section 120- B IPC it is necessary to establish that there was an agreement between the parties for doing an unlawful act.
113. In the present case the prosecution has not been able to show that the accused persons agreed to commit the offence as alleged. The complainant Shilpa Goyel has no where in her testimony or in her complaints ever stated that any of the Sessions Case No: 39/11 Page 39 of 61 40 accused was seen by her alongwith accused Arun Kumar Mishra in Delhi or in Gurgaon.
114. In order to prove the conspiracy between the accused persons the prosecution has examined PW 35 Sh. Akhilesh. He has deposed that he is an advocate by profession and practice in taxation in Sultan Pur. He further deposed that he had received a notice U/s 160 Cr.P.C from the IO. He further stated that he had told to the IO that he was not aware about the suspects in this case. He further stated that the IO had not recorded his statement in this case.
115. This witness was declared hostile by the Ld. Addl. PP for the state and in his cross examination by the Ld. Addl. PP for the state he denied the suggestion that the IO had shown him the photographs of accused Arun Kumar Mishra Ex. PW 8/A-1, accused Umesh Saini Ex. PW 8/A-2 and accused Anurag Srivastava Ex. PW 8/A-3. He also denied the suggestion that all the photographs were signed by him at point A and he voluntarily stated that he always sign in English. He also denied that he had seen all the three accused persons together or that they used to visit his office.
116. PW 39 SI Avdhesh has proved on record the frequency chart of call details of all the accused persons as Ex. PW 39/C to show that they were in touch with each other. It was urged by the Ld defence counsel that even if the accused persons were talking with each other, it does not show that the remaining accused persons conspired with accused Arun Kumar Mishra to eliminate Shilpa Goyal.
117. The arguments of the Ld defence counsel has force in it. The prosecution had to show something more apart from the call Sessions Case No: 39/11 Page 40 of 61 41 details to show that they all conspired to kill Shilpa Goyal but the said link is missing. According to the prosecution accused Anurag Srivatava had arranged the weapons for accused Arun Kumar Mishra but again except the disclosure statement of the accused persons there is no other evidence on record to show as to from where accused Anurag Srivatava obtained the weapons which according to the prosecution were supplied to accused Arun Kumar Mishra.
118. Therefore, there is no evidence on record to show that the remaining accused persons had conspired alongwith accused Arun Kumar Mishra to eliminate Shilpa Goyel in case she refused to marry accused Arun Kumar Mishra. The prosecution has not produced a single witness to show that it was accused Anurag Srivastava who procured the weapons and supplied the same to accused Arun Kumar Mishra and Sandeep Shekhar for the execution of his plan.
119. No doubt the accused persons were talking to each other from their mobile phones but since they were all friends it does not mean that there was a conspiracy between them to eliminate deceased Shilpa Goel or they helped in procuring the weapons for accused Arun Kumar Mishra. No doubt conspiracies are hatched in secrecy but the prosecution has to bring some evidence on record to show that a conspiracy as alleged was hatched which is missing in the present case. There is also no evidence on record to show that the remaining accused persons were seen together in the company of accused Arun Kumar Mishra before or after the incident.
120. So the prosecution has failed to prove on record that accused Anurag Srivastava @ Deepu, Umesh Saini @ Bittu, Sandeep Shekhar and Pankaj Dhama entered into a conspiracy with accused Arun Kumar Mishra to eliminate deceased Shilpa Goel and in pursuance to which accused Arun Kumar Mishra fired on complainant Shilpa Goel. Accused Anurag Srivastava @ Deepu, Umesh Saini @ Bittu, Sandeep Shekhar and Pankaj Dhama are, therefore, acquitted.
Sessions Case No: 39/11 Page 41 of 61 42121. Now put up for arguments on the point of sentence on behalf of convict Arun Kumar Mishra on 17-07-2014. (Announced in the open Court on 10-07-2014.) (RAJNISH BHATNAGAR) ADDL. SESSIONS JUDGE-02 NORTH DISTRICT, ROHINI COURTS : DELHI IN THE COURT OF SH. RAJNISH BHATNAGAR, ADDL. SESSIONS JUDGE -02, NORTH DISTRICT ROHINI COURTS : DELHI IN RE : Sessions Case No. : 39/2011 FIR No. : 405/2010 P.S. : South Rohini U/s : 307/120 B IPC & 25/54/59 Arms Act State Vs.
1. Arun Kumar Mishra S/o Ram Avtar Mishra R/o A-7, Sector-5, Ashok Vihar, Gurgaon, (Haryana).
2. Anurag Srivastva @ Deepu S/o Raj Kumar Srivastava R/o Village Mahanand Pur, P.S. Dehat Kotwali, District Sultanpur (U.P.)
3. Umesh Saini @ Bitto S/o Ram Singh Saini R/o 533, Madanpuri, Gali No. 7, Gurgaon, (Haryana) Sessions Case No: 39/11 Page 42 of 61 43
4. Sandeep Shekhar S/o Om Prakash Yadav R/o 1105/1, Dayanand Colony, Gurgaon, Haryana.
5. Pankaj Dhama S/o Yad Singh Dhama R/o 775 B, Block Palam Vihar, Gurgaon, Haryana.
ORDER ON OF SENTENCE
1. I have heard Ld. Addl. PP for the state and Ld. counsel for convict Arun Kumar Mishra on the point of sentence.
2. It is urged by the Ld. counsel for the convict that the convict is a young man, has his old parents to support and he is not a previous convict. He further urged that minimum punishment be awarded to the convict.
3. On the other hand, Ld. Addl. PP for the State submits that the convict doesn't deserve any leniency as he has mercilessly shot an innocent young girl on her back and by the act of the convict her life has become a hell. He further urged that maximum punishment be awarded to the convict.
4. Convict Arun Kumar Mishra has been convicted by me vide separate judgment dated 10.07.2014 U/s 307 IPC and U/s 25/27 of the Arms Act.
5. The convict has ruined the life of a young girl by his inhuman conduct. He had shot the victim in her back because of which she has become crippled and is on wheel chair. According to the doctor the victim has no chances of recovery because of the Sessions Case No: 39/11 Page 43 of 61 44 injury inflicted upon her. The victim has been reduced to a vegetable. Her condition is worse than a dead person and she is dying daily. The convict in my opinion, has acted ruthlessly and in a pre-planned manner, therefore he does not deserve any leniency.
His conduct calls for maximum punishment, I therefore, sentence convict Arun Kumar Mishra to undergo life imprisonment U/s 307 IPC and pay a fine of Rs. 20000/-. He will undergo rigorous imprisonment for six months in case of default of payment of fine.
6. I also sentence convict Arun Kumar Mishra to undergo rigorous imprisonment for 5 years U/s 25 of the Arms Act and pay a fine of Rs. 5000/-. He will undergo rigorous imprisonment for three months in case of default of payment of fine.
7. I also sentence convict Arun Kumar Mishra to undergo rigorous imprisonment for 7 years U/s 27 of the Arms Act and pay a fine of Rs. 5000/-. He will undergo rigorous imprisonment for three months in case of default of payment of fine. Ordered accordingly.
8. All the sentences to run concurrently. The benefit of section 428 Cr.P.C. be given to convict. Copy of judgment and order on sentence be given to convict free of cost. File be consigned to Record Room.
(Announced in the open Court on 06-08-2014) (RAJNISH BHATNAGAR) ADDL. SESSIONS JUDGE-02 Sessions Case No: 39/11 Page 44 of 61 45 NORTH DISTRICT, ROHINI COURTS : DELHI Sessions Case No: 39/11 Page 45 of 61