Delhi District Court
State vs Vinod @ Kake on 8 June, 2017
IN THE COURT OF SHRI KULDEEP NARAYAN : ADDITIONAL SESSIONS
JUDGE (PILOT COURT ): WEST : TIS HAZARI COURTS: DELHI
SC No. 57497/16
FIR No. 385/2010
U/s. 302/216/34 IPC & Sec.25 of The Arms Act.
P.S Uttam Nagar
In the matter of :
State
Versus
1. Vinod @ Kake
S/o Shri Chiranji Lal
R/o 586, T- Camp, Krishna Colony,
Kali Basti, Uttam Nagar, Delhi.
2. Mahesh
S/o Late Swamidin
R/o H. No. 792, T Camp,
Krishna Colony, Kali Basti
Uttam Nagar, Delhi.
3. Prakash Passi
S/o Shri Gore Lal
R/o Village Jalalpur PS Ajgen
District Unnao, U.P.
4. Chander Prakash @ Pappu
S/o late Chiranji Lal
R/o H. No. 586, T-Camp, Krishna
Colony, Kali Basti.
IInd Address:
H. No. 17, 3rd floor, Dabri Village
(House of Anil Solanki).
Sessions Case No. 57497/16 Page 1/48
5. Anil
S/o Shri Kishan Chand
R/o 839, T- Camp Colony, Kali Basti
Uttam Nagar, New Delhi.
6. Vicky @ Gobind
S/o Shri Ram Chander
R/o O-185, Vani Vihar, Geeta Enclave,
Nand Ram Park Uttam Nagar,
Delhi.
7. Vijay @ Nauty
S/o late Chiranji Lal
R/o Flat No. 33, Pocket 7,
Nasirpur, Delhi.
8. Nagender @ Vicky @ Ganja (Proclaimed Offender)
S/o Not Known.
Jhuggi No. 681, T- Camp Krishna
Colony, Kali Basti, Uttam Nagar
Delhi.
9. Ranjit Kumar @ Rahul (Proclaimed Offender)
S/o Shri Ramji Singh
Flat no. 364, Pocket-7, DDA flats,
Durga Park, Nasirpur, Delhi.
Date of Institution : 18.03.2011
Date of reserving Judgment : 21.04.2017
Date of pronouncement : 07.06.2017
Appearances
For the State : Ms. Reeta Sharma, Additional Public
Prosecutor.
For the accused persons : Shri Ayub Ahmed Qureshi, Advocate.
Sessions Case No. 57497/16 Page 2/48
JUDGMENT
Besides two proclaimed offenders, there are seven accused persons involved in the present case, however, initially accused Mahesh, accused Vinod @ Kake and accused Prakash Passi were sent up for trial on the basis of report under Section 173 of the Code of Criminal Procedure, 1973 (Cr.P.C) submitted on 18.03.2011 upon conclusion of investigation into First Information Report (FIR) No. 385/2010 of police station (PS) Uttam Nagar. The accused Mahesh and Vinod @ Kake were sent up for trial for offences punishable under Sections 302/34 of the Indian Panel Code, 1860 (IPC) and Section 25/27 of the Arms Act, 1959. Accused Prakash Passi was sent up for trial for the offence punishable under Section 216 IPC.
2. As per the prosecution story, on 27.11.2010 on receipt of DD No. 46A regarding firing incident, SI Shivdutt Jamini alongwith constable Rajender went to Central School, Kali Basti near Kuda Khatta (Garbage collection point) in front of Hastal Village where blood and one empty cartridge was found lying on the spot of incident. On receipt of information that injured had already been taken to DDU hospital, SI Shivdutt Jamini went to DDU hospital leaving constable Rajender on the spot of incident to preserve the same. In the hospital one Sonu S/o Shri Rajpal R/o Kali Basti, Uttam Nagar, Delhi was reportedly admitted with history of gun shot and was declared brought dead. In the hospital, brother of deceased Sonu namely, Sunny and his friend namely, Bunty met SI Shivdutt Jamini and he recorded statement of Sunny who reported that the family of accused Vijay @ Nauty had old enmity with his family as on earlier occasion a quarrel had taken place between the members of his family and family member of accused Vijay @ Nauty including his brother Vinod @ Kake, his brother-in-law (sala) Anil, his brother Chander Sessions Case No. 57497/16 Page 3/48 Prakash @ Pappu, his mother Sheela, his mother-in-law (mausi saas) Darshan, one Nanak Chand, Mahesh, Ram Prakash and Vicky wherein Vijay @ Nauty had inflicted injuries upon Sunny with knife. A case FIR no. 315/10 dated 26.09.2010 under Section 452/323/324/308/506/34 IPC was registered in police station in this regard. Thereafter, on 23.04.2005 again accused Vijay @ Nauty fired bullet on Sonu @ Bhola and a case FIR no. 348 dated 23.04.2010 under section 307/34 IPC read with Section 27 of the Arms Act, 1959 was registered in this regard against accused Vijay @ Nauty, accused Chander Prakash @ Pappu and one Sandeep @ Banda and they were got arrested.
3. Due to the above-said enmity, on 27.11.2010 when Sunny and his brother Sonu @ Bhola were going to drop his friend Bunty at his residence i.e. house of Ramesh Tyagi, Peepal Chowk, Hastal Village Delhi, at about 8.30 p.m in front of wall of Central school, Hastal Village accused Vijay @ Nauty, accused Anil, accused Chander Prakash @ Pappu, accused Vinod @ Kake and accused Mahesh came there on two motorcycles and stopped them. After 2-3 minutes, one Ranjit @ Rahul, Vicky @ Ganja and Vicky @ Rahul also reached there on one motorcycle and they all surrounded Sunny, his brother Sonu @ Bhola and Bunty. Ranjit @ Rahul, accused Vicky @ Ganja, Vicky, Mahesh and Anil caught Sonu @ Bhola (deceased) from behind and Vijay @ Nauty and Chander Prakash @ Pappu fired bullets at Sonu @ Bhola (deceased). Sunny and his friend Bunty could manage to rsun away towards Hastal village. After sometimes, when all the above-mentioned accused persons had left, Sunny and Bunty came back and took injured Sonu @ Bhola to DDU hospital with the help of police gyspy, where Sonu @ Bhola was declared brought dead.
4. On the statement of Sunny, the FIR No. 385/10 under Section 302/34 IPC read with Section 27 of the Arms Act was registered.
Sessions Case No. 57497/16 Page 4/48Afterwards, the case was handed over to Inspector Jai Kishan, SHO for investigation who got prepared the site plan of place of occurrence. Crime team was called which took photographs of scene of crime. The postmortem of Sonu @ Bhola (deceased) was got conducted on 28.11.2010 and the dead body was handed over to the family of deceased.
5. During the course of investigation, on 22.12.2010 both accused Mahesh and accused Vinod @ Kake surrendered before learned Metropolitan Magistrate. Further, on receipt of information about providing shelter to accused Vijay @ Nauty, accused Vicky @ Ganja and accused Rahul, accused Prakash Passi was arrested by the police under Section 216 IPC. The police report under Section 173 Cr.P.C i.e the chargesheet against accused Mahesh, accused Vinod @ Kake and accused Prakash Passi was prepared and filed in the court on 18.3.2011. The learned Metropolitan Magistrate took cognizance of the offences as per the chargesheet and vide order dated 5.4.2011, committed the case to the court of Sessions.
6. Subsequently, accused Anil surrendered before the court on 5.4.2011 and accused Vicky @ Gobind was arrested on 26.4.2011. A supplementary chargesheet was filed qua both aforesaid accused persons on 4.5.2011.
7. Accused persons namely Vijay @ Nauty, Chander Prakash @ Pappu, Ranjit @ Rahul and Nagender @ Vicky were declared proclaimed offenders on 24.8.2011.
8. Thereafter, accused Chander Prakash @ Pappu and accused Vijay @ Nauty were arrested and separate supplementary chargesheet were filed against them on 26.11.2012 and 21.8.2013 respectively.
9. Accused Ranjit @ Rahul and accused Nagender @ Vicky who were declared proclaimed offenders vide order dated 24.8.2011, could not be arrested or produced before the court.
Sessions Case No. 57497/16 Page 5/4810. After hearing the learned Additional Public Prosecutor for the State and the learned counsel for the accused persons, vide order dated 26.9.2011, charge for the commission of offence punishable under Section 302/34 was framed against accused persons namely Mahesh, Vinod @ Kake, Anil and Vicky @ Gobind. Charge for commission of offence pounishable under Section 25/27 of the Arms Act was also framed against accused Vinod @ Kake. Charge for the commission of offence punishable under Section 216 IPC was framed against the accused Prakash Passi.
11. Further, vide order dated 3.1.2013, charge for commsion of the offence punishable under Sections 302/34, 201 and 174A IPC was framed against accused Chander Prakash @ Pappu.
12. Vide order dated 4.9.2013, charge for commission of offence under Section 302/34 and 174A IPC was framed against accused Vijay @ Nauty.
13. All the accused persons did not plead guilty and claimed trial.
14. To bring home the afore-mentioned charges to the accused persons, the prosecution got examined HC Devender Kumar (PW-1), Constable Kulvir (PW-2), Bunty (PW-3), Dr. Rishi, Medical Officer (PW-4), Shri Raj Kumar Solanki (PW-5), Constable Randhir Singh (PW-6), Constable Rajinder Singh (PW-7), HC Kamal Singh (PW-8), Shri Deepak (PW-9), Shri Pappu (PW-10), HC Krishan Kumar (PW-11), Constable Krishan Kumar (PW-12), HC Surender Singh (PW-13), HC Shailender (PW-14), SI Shiv Dutt Jamini (PW-15) , SI Ram Pal (PW-16), Manisha Upadhyaya Sr. Scientific Officer (Biology) (PW-17) , ASI Ajit Singh (PW-18) , Sunny (PW-19) , Shri A.K Shrivastava, Deputy Director DNA (PW-20), Shri Vinod (PW-21), Smt. Ram Rani (PW-22), SI Saurabh Vikram (PW-23), HC Satyapal (PW-24), Dharmendra Kumar, Ahlmad (PW-25), Dr. B.N Mishra, Medical Officer-cum-Medico Legal Officer (PW-26), Inspector Mukesh Kumar(PW-27), Inspector Anand Swaroop (PW-28), Inspector Sessions Case No. 57497/16 Page 6/48 Mahesh Kumar (PW-29) and ACP Jai Kishan Gautam (PW-30), I.O of case.
15. The prosecution also relied on following documents, tendered into evidence:-
1. Negatives of the photographs of the scene of crime from various angles (PW-1/A1 to PW-1/A 8)
2. Photographs of the place from various angles (PW-1/B1 to PW-1/B8)
3. Seizure memo of shoe (Ex. PW-3/A)
4. Seizure memo of empty cartridge of brass (Ex.PW- 3/B)
5. Seizure memo of blood, blood stained earth and earth control lying at the spot (Ex.PW-3/C)
6. Seizure memo of blood stained shirt and sweater (Ex.PW-3/D)
7. Sketch of fired cartridge (Ex.PW-3/E)
8. MLC no. 21174 (Ex.PW-4/A)
9. DD entry no. 46A dated 27/11/2010 PS Uttam Nagar (Ex.PW-8/A)
10. DD entry no. 77B dated 27/11/2010 PS Uttam Nagar (Ex. PW-8/B)
11. DD entry no. 80 B dated 27/11/2010 PS Uttam Nagar (Ex. PW-8/C)
12. FIR (Ex. PW-8/D)
13. Certificate U/s 65 B of Indian Evidence Act (Ex. PW-8/E)
14. Endorsement on rukka (Ex. PW-8/F)
15. Identification of dead body by Pappu (Ex. PW-10/A) Sessions Case No. 57497/16 Page 7/48
16. Copy of register no. 19 containing entry no. 4687 (Ex. PW-13/A)
17. Copy of register no. 19 containing entry no. 4721 (Ex. PW-13/B)
18. Copy of RC register containing RC no. 154/21/10 (Ex. PW-13/C)
19. Copy of RC register containing RC no. 27/21/11 (Ex. PW-13/D)
20. Arrest memo of Prakash Passi (Ex. PW-14/A)
21. Personal search memo of accused Prakash Passi (Ex. PW-14/B)
22. Tehrir (Ex. PW-15/A)
23. Seizure memo of blood stained clothes of Sunny (Ex. PW-15/B)
24. Seizure memo of clothes blood in gauge piece & metallic bullets (Ex. PW-15/C)
25. Disclosure statement of accused Vinod @ Kake (Ex. PW-15/D)
26. Disclosure statement of accused Mahesh (Ex. PW-15/E)
27. Arrest memo of accused Vinod (Ex. PW-15/F)
28. Arrest memo of accused Mahesh (Ex. PW-15/G)
29. Personal search memo of Vinod @ Kake (Ex. PW-15/H)
30. Personal search memo of accused Mahesh (Ex. PW-15/J)
31. Sketch of knife(Ex. PW-15/K)
32. Pointing out memo and recovery of button actuated knife (Ex. PW-15/L)
33. Statement of Sunny (Mark X) Sessions Case No. 57497/16 Page 8/48
34. Arrest memo of accused Anil (Ex. PW-16/A)
35. Personal search memo of accused Anil Kumar (Ex. PW-16/B)
36. Disclosure statement of accused Anil (Ex. PW-16/C)
37. Seizure memo of motor cycle DL-4S as 9740 (Ex. PW-16/D)
38. Seizure memo of RC no. DL-4S as 9740 (Ex. PW-16/E)
39. Photocopy of registration no. DL-4S as 9740 (Ex. PW-16/E-1)
40. Arrest memo of accused Vicky (Ex. PW-16/F)
41. Personal search memo of accused Vicky (Ex. PW-16/G)
42. Disclosure statement of accused Vicky (Ex. PW-16/H)
43. Seizure memo of motor cycle no. DL-3S BC 1135 (Ex.PW-16/J)
44. Detailed biological report (Ex. PW-17/A)
45. Detailed serological report (Ex. PW-17/B)
46. Crime team report of the spot (Ex. PW-18/A)
47. Detailed DNA report (Ex. PW-20/A)
48. Statement of Sh. Vinod U/s 161 Cr.P.C (Ex. PW-21/A)
49. Disclosure statement of accused Vijay (Ex. PW-24/A)
50. Arrest memo of accused Vijay (Ex. PW-24/B)
51. Disclosure statement of accused Vijay (Ex. PW-25/A)
52. Personal search memo of accused Vijay (Ex. PW-25/B) (OSR) Sessions Case No. 57497/16 Page 9/48
53. Arrest memo of accused Vijay (Ex. PW-25/C) (OSR)
54. Postmortem report (Ex. PW-26/A)
55. Subsequent opinion regarding the weapon of offence (Ex. PW-26/B)
56. Sketch of the knife i.e weapon of offence (Ex. PW-26/C)
57. Scaled site plan of the spot (Ex. PW-29/A)
58. Site plan of the spot without scale (Ex. PW-30/A)
59. Death report (Ex. PW-30/B)
60. Identification of dead body by Sunny (Ex. PW-30/C)
61. Receipt of dead body (Ex. PW-30/D)
62. Application for interrogation and arrest of accused Vinod @ Kake (Ex. PW-30/E)
63. Application for interrogation of accused Mahesh (Ex. PW-30/F)
64. Application for police custody remand for 2 days of accused Vinod @ Kake (Ex. PW-30/G)
65. Application for police custody remand for 2 days of accused Mahesh (Ex. PW-30/H)
66. Request for subsequent opinion regarding injuries (Ex. PW-30/J)
67. Request to grant permission to interrogate and to arrest the accused Anil (Ex. PW-30/K)
68. DD entry no. 28 A dated 26/04/2011 PS Uttam Nagar (Ex. PW-30/L)
69. Request for mechanical examination of motor cycle bearing registration no. DL 4S as 9740 (Ex. PW-30/M) Sessions Case No. 57497/16 Page 10/48
70. Report of mechanical examination of motor cycle bearing registration no. DL 4S as 9740 (Ex. PW-30/M-1)
71. PO chargesheet of four accused filed on September 2011 (Ex. PW-30/N).
16. On 03.11.2016, statements of accused persons namely Vinod @ Kake, Mahesh, Prakash Passi, Chander Prakash @ Pappu, Anil, Vicky @ Gobind and Vijay @ Nauty under Section 313 Cr.P.C were recorded wherein all the accused persons denied the correctness of all the incriminating circumstances appearing in the evidence against them and stated that they were wrongly arrested and were falsely implicated in the present case.
17. All the accused persons except accused namely Prakash Passi and accused Vijay @ Nauty desired to lead the evidence in their defence, however, only accused Vicky @ Gobind got examined one Shri Rahul Vohra as DW-1 in his defence.
18. I heard the arguments advanced by Ms. Reeta Sharma, learned Additional Public Prosecutor for the State and Shri Ayub Ahmed Qureshi, learned counsel for all the accused persons. I have also perused the entire material available on record.
19. During the course of arguments, learned Addl. Public Prosecutor argued that the prosecution successfully proved its case beyond all reasonable doubts against all the accused persons. She further argued that though Bunty ( PW-3) and Sunny ( PW-19 ) turned hostile, their entire testimony has not been rendered fruitless and the unrebutted testimonies of both the prosecution witnesses fully corroborate the prosecution story. In support of her contentions, learned Addl. Public Prosecutor for the State relied upon Vinod Kumar v. State of Punjab (2015) 3 SCC, 220, judgment in Dev Raj v. State of Chhattisgarh passed Sessions Case No. 57497/16 Page 11/48 by the Hon'ble Supreme Court on 25.7.2016 in Criminal Appeal No.423 of 2015, Khujji v. State of M.P (1991) 3 SCC 627 and judgment passed in Naresh Kumar v. State by the Hon'ble High Court of Delhi on 4.9.2013 in Criminal Appeal No.432/321/717 of 2010. It was further argued that the cross-examination of Bunty (PW-3) could not impeach the creditworthiness of his testimony which also gets corroborated from the fact of recovery of knife i.e weapon of offence and postmortem report wherein the injuries present on the dead body of the deceased were found consistent with the manner of injuries inflicted as deposed by PW-3. She further argued that all the accused persons were duly identified by the prosecution witnesses and therefore, the prosecution successfully established that the accused persons were responsible for commission of offences in the present case and accordingly deserve conviction.
20. Per contra, learned counsel for the accused persons argued that the prosecution miserably failed to prove its case against the accused persons beyond all reasonable doubts as the fire arm allegedly used by the accused persons namely Vijay @ Nauty and Chander Prakash @ Pappu could not be recovered during investigation. Further, no blood stains could be found on the recovered knife i.e weapon of offence which, therefore, is of no use to the prosecution. Learned Defence counsel further argued that the prosecution witnesses namely Bunty (PW-3) and Sunny (PW-19) turned hostile and therefore, their testimonies cannot be believed. Learned Defence counsel also pointed out to the contradictions in the testimonies of prosecution witnesses and submitted that the entire prosecution story is nothing but concocted and manipulated one. It was lastly argued that in view of major contradictions in the testimonies of prosecution witnesses, the prosecution failed to prove the ingredients of offences beyond all reasonable doubts and all the accused persons deserve to be acquitted.
Sessions Case No. 57497/16 Page 12/4821. I have given my thoughtful consideration to the submissions advanced by both the sides.
22. In the facts and circumstances of the case and in view of the submissions advanced on behalf of both the sides, following points for determination are emerging:
1. Whether there was any previous enmity between the families of Sonu @ Bhola (deceased) and accused persons namely Vijay @ Nauty, Chander Prakash @ Pappu and Vinod @ Kake ? 2 Whether on 27.11.2010 at about 8.30 p.m, all the accused persons except the accused Prakash Passi were present at the scene of crime?
3 Whether on 27.11.2010 at about 8.30 p.m, Sonu @ Bhola, (deceased) Bunty (PW-3) and Sunny (PW-19), brother of the deceased were also present at the scene of crime ? 4 Whether Sonu @ Bhola (deceased) suffered knife and gun shot injuries on his person on the aforementioned date and time ? 5 If so, whether such injuries suffered by Sonu @ Bhola (deceased) were sufficient to cause his death in the ordinary course of nature ?
6 Whether the accused Vinod @ Kake inflicted knife injuries and accused Vijay @ Nauty and Chander Prakash @ Pappu caused gun shot injuries on the person of Sonu @ Bhola (deceased) on the aforesaid date and time ?
7 Whether accused persons namely Mahesh, Anil and Vicky, in furtherance of common intention of all the accused persons to cause the death of Sonu @ Bhola (deceased), caught hold of him at the time of infliction of knife and gun shot injuries upon him ? 8 Whether any knife was recovered at the instance of accused Vinod @ Kake ?Sessions Case No. 57497/16 Page 13/48
9 If so, whether such recovered knife was a weapon of offence and was used by the accused Vinod @ Kake for inflicting injuries upon the person of Sonu @ Bhola (deceased) ? 10 Whether country-made pistol used in commission of offfence was destroyed by the accused Chander Prakash @ Pappu ? 11 Whether the accused Prakash Passi harboured and gave shelter to the accused persons in order to shield them from legal punishment ?
23. In the present case, there are seven accused persons who have been sent up for facing trial for commission of various offences. All the accused persons have been charged for commission of different offences. Hence, it would be appropriate to analysis the testimonies of prosecution witnesses relating to a particular charge. Firstly, charge under Section 302/34 IPC is taken up for consideration.
Charge U/s 302/34 IPC
24. Out of seven accused persons, six accused persons namely Mahesh, Vijay @ Nauty, Vinod @ Kake, Anil, Vicky @ Gobind and Chander Prakash @ Pappu have been charged for commission of offence punishable under Section 302/34 IPC.
25. The relevant part of Section 300 of the Indian Penal Code which defines 'Murder' reads as follows:
300. Murder- Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or -
Secondly- If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused , or -
Thirdly- If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or -
Fourthly- If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act Sessions Case No. 57497/16 Page 14/48 without any excuse for incurring the risk of causing death or such injury is aforesaid.
26. Further, the relevant part of Section 299 which defines "Culpable homicide", having reference in the definition of murder reads as follows:
299.Culpable homicide- Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, commits the offence of culpable homicide.
27. The case of the prosecution is primarily based on eye witness account of Bunty (PW-3) and Sunny (PW-19). Bunty (PW-3) was examined-in-chief on 19.1.2012 and was cross-examined at length on 6.3.2012, 4.7.2012 and 3.10.2012. Bunty (PW-3) was again examined and cross-examined on 3.1.2014 after the arrest of the accused persons namely Vijay @ Nauty and Chander Prakash @ Pappu. On 3.1.2014, Bunty (PW-3), during his examination turned hostile to the prosecution case as he resiled from his previous statement. He also failed to identify the accused Vijay @ Nauty and accused Chander Prakash @ Pappu. He was accordingly cross-examined and re-examined with the permission of the court, by the learned Addl. Public Prosecutor for the State.
28. Similarly, Sunny (PW-19) also turned hostile at the time of his examination on 3.1.2014. He was also cross-examined by the learned Public Prosecutor for the State.
29. Since both the eye-witnesses i.e Bunty (PW-3) and Sunny (PW-19) turned hostile to the prosecution case, their testimonies are to be scrutinised as per the settled law regarding the testimony of a hostile witness.
30. As far as the testimony of a hostile witness is concerned, it has become a settled proposition of law that the entire testimony of a hostile witness is not completely effaced. The testimony of such a witness is not rendered completely useless to the prosecution and it can be utitlized, if it gets corroborated by other evidence available on record. In Vinod Sessions Case No. 57497/16 Page 15/48 Kumar (supra) case one of the prosecution witnesses namely Jagdish Verma (PW-7), supported the prosecution case in all its aspects in his examination in chief, but in his cross-examination, he resiled from his examination in chief and was declared a hostile witness. Relying upon Bhagwan Singh v. State of Haryana, (1976) 1 SCC, 389, the Hon'ble Supreme Court in Vinod Kumar (supra) case laid down that even if a witness is characterised as a hostile witness, his evidence is not completely effaced. The said evidence remains admissible in the trial and there is no legal bar to base a conviction upon his testimony, if corroborated by other reliable evidence. Similarly, in Khujji (supra) case, the Apex Court reiterated that the evidence of such a witness cannot be effaced or washed off the record altogether, but the same can be accepted to the extent, it is found to be dependable on a careful scrutiny thereof. Again, reiterating the afore-mentioned settled propositions regarding hostile witness, it was held by the Apex Court in Dev Raj (supra) case that that part of evidence of a witness as contained in examination in chief, which remains unshaken even after cross-examination is fully reliable even though the witness has been declared hostile. In its recent judgment passed on 14.2.2017, the Hon'ble Supreme Court in Arjun & Anr. v. State of Chhattisgarh (2017), 3 SCC 247, has held that merely because witnesses have turned hostile in part, their evidence cannot be rejected in toto. The evidence of such witnesses can be accepted to the extent their version is found dependable and the court shall examine more cautiously to find out as to what extent, he has supported case of prosecution.
31. In the light of above-mentioned authoritative pronouncements, on a careful scrutiny of the testimonies of both the eye-witnesses namely Bunty (PW-3) and Sunny (PW-19), it becomes evident that in his examination- in-chief conducted on 19.1.2012, PW-3 gave a detailed account when he deposed that on 27.11.2010, at about 8.30 p.m., his Sessions Case No. 57497/16 Page 16/48 friends namely Sonu @ Bhola and his brother Sunny (PW-19) were going to Hastal village to drop him and when all of them had reached near the place where garbage is collected (Khatta) situated at the corner of Kali Basti, firstly two motocycles and within 2 minutes third motorcycle came in front of them. PW-3 further stated that accused Nauty and Pappu were sitting on one motocycle, accused Vinod @ Kake, Mahesh and Anil were sitting on second motorcycle and accused Vicky @ Gobind, Vicky @ Ganja and Rahul were sitting on the third motorcycle. PW-3 categorically deposed that all the eight persons surrounded them, saying "Aaj Tumhe Maja Chakhate Hai, Tumne Hamare Khilaf Thane Main Complaint Likhai Thi". PW-3 further deposed in categorical term that first of all accused Kake caught hold of Sonu (deceased) and stabbed him several times from behind with a knife in his neck portion and forehead. Accused Pappu took out a pistol from under his shirt and fired upon Sonu (deceased) in his stomach. Accused Nauty also took out a pistol from under his shirt and fired upon Sonu (deceased) on his chest, while rest of five accused persons were holding Sonu (deceased). Consequently, Sonu (deceased) had fallen down on the road after receiving the injuries. PW-3 and Sunny (PW-19) saved themselves by running from there who were also followed by all the eight accused persons, but could not be caught.
32. PW-3 further deposed that he and Sunny (PW-19) returned to the spot after about five minutes where a huge crowd had gathered around Sonu (deceased). PW-3 and Sunny (PW-19) sought help of one Deepak (PW-9), friend of Sunny (PW-19) who gave his motorcycle for taking Sonu (deceased) to the hospital. Sunny (PW-19) drove the said motorcycle. Sonu (deceased) was made to sit between PW-3 and Sunny (PW-19) on the motorcycle and while going towards DDU hospital, near Suraj Mal College, Janak Puri, one police Gypsy coming from Vikas Puri side was sighted. PW-3 requested the driver and police officials of the Sessions Case No. 57497/16 Page 17/48 said Gypsy to take Sonu (deceased) to DDU hospital. PW-3 further deposed that he and Sunny (PW-19) had put Sonu (deceased) in the police Gypsy, PW-3 sat in the Gypsy while Sunny (PW-19) followed them on the motorcycle. On reaching DDU hospital, the examining doctor declared Sonu brought dead.
33. PW-3 identified the accused persons namely Vinod @ Kake, Mahesh, Anil and Vicky @ Gobind who were present in the court on that day to be the same persons who had caught hold of Sonu @ Bhola (deceased) and inflicted injuries on his person on the said date, time and place. PW-3 was cross-examined on 6.3.2012, 4.7.2012 and 3.10.2012. The testimony of PW-3 regarding identity of accused Vicky @ Gobind could not be controverted. No cross-examination of PW-3 was conducted to doubt his identification of the accused Vinod @ Kake, Mahesh and Anil. The testimony of PW-3 in this regard remained unshattered.
34. Consequent upon the arrest of accused Chander Prakash@ Pappu and Vijay @ Nauty, PW-3 was again examined and cross-examined on 3.1.2014.
35. However, in his examination conducted on 3.1.2014, PW-3 resiled from his previous statement and failed to identify the accused Chander Prakash @ Pappu and accused Vijay @ Nauty. PW-3 also stated that on 19.1.2012, he had given the statement in the court under the pressure of the police. Further, as there was darkness at the spot, he had not seen the assailants i.e 8-10 persons who had come on the spot on motorcycles. PW-3 further showed his ignorance about the person who had fired at Sonu (deceased) as he had run away from the spot.
36. It is clear from the examination in chief of PW-3 and his cross- examination conducted on 6.3.2012, 4.7.2012 and 3.10.2012 that PW-3 categorically identified the accused persons namely Vinod @ Kake, Sessions Case No. 57497/16 Page 18/48 Mahesh, Anil and Vicky @ Gobind who were present in the court. PW-3 also named the accused persons namely Chander Prakash @ Pappu and Vijay @ Nauty. During his cross-examination, PW-3 reiterated about use of motorcycle and of police gypsy to take Sonu @ Bhola (deceased) to the hospital. He further stated that he could see the deceased and the accused persons as there was sufficient light, the distance between the deceased and the place from where the bullets were fired was about one feet and at that time, PW-3 was standing at a distance of 10-12 feet from the deceased. PW-3 further stated that two fires in quick succession were shot. PW-3 even deposed about the height of accused persons namely Chander Prakash @ Pappu and Vijay @ Nauty to be more than that of the deceased. PW-3 also duly identified the sport shoe Ex.P-1 belonging to the deceased, his own blood stained shirt and sweater Ex.P-3 and one empty cartridge Ex.P-4 which was seized from the spot.
PW-3 was also confronted with his statement Ex.PW-3/DA recorded under Section 161 Cr.P.C wherein all the material facts regarding the firing incident by the accused persons, taking the deceased to the hospital through one motorcycle and police gypsy were found duly recorded. PW- 3 also deposed about enmity between the accused Mahesh, Vijay @ Nauty and Sonu @ Bhola (deceased), Pappu and Subhash.
37. There is no material available on record to establish any enmity between PW-3 and any of the accused persons so as to presume the false implication of the accused persons on the basis of testimony of PW-3. Even otherwise, the absence of other accused persons was not even suggested to PW-3 at the time of his cross-examination. Moreover, there is considerable gap between the cross-examination of PW-3 conducted on 3.10.2012 and 3.1.2014 when he did not identify the accused Chander Prakash and Vijay @ Nauty and therefore, the possibility of exercise of influence or threat or winning over of PW-3 by the accused persons can Sessions Case No. 57497/16 Page 19/48 be easily presumed, especially in view of his categorical deposition on 19.1.2012 which remained unshattered in his cross-examination conducted on 6.3.2012, 4.7.2012 and 3.10.2012. As observed by the Apex Court in Vinod Kumar (supra) case, such delay might have given enough time for prevarication and the witness had all the time in the world to be gained over. In his cross-examination conducted on 3.1.2014, though PW-3 stated that he had given his statement in the court on 19.1.2012 under the pressure of the police, no particulars of any such pressure exercised by the police or name of any police officials could be deposed by PW-3. Therefore, the testimony of PW-3 qua deposing in the court on 19.1.2012 under the pressure of the police and not identifying the accused Chander Prakash @ Pappu and Vijay @ Nauty is not believable, moreso, when PW-3 deposed in categorical terms about the role played by each accused person in commission of offence. Even on 3.1.2014, PW-3 reiterated about the incident and assailants who had come on motorcycles and firing upon the deceased.
38. To further strengthen the identification of accused Chander Prakash @ Pappu and Vijay @ Nauty to be the persons involved in the commission of the offence is concerned, as observed earlier, PW-3 named in categorical term both the accused persons while deposing in the court. Sunny (PW-19), brother of the deceased while deposing on 3.1.2014 identified all the accused persons present in the court which included the accused Chander Prakash @ Pappu and Vijay @ Nauty though he denied about their involvement in the commission of offence. ACP Jai Kishan Gautam (PW-30), I.O of the case, also deposed about the arrest of accused Chander Prakash @ Pappu and Vijay @ Nauty and identified them who were present in the court. His testimony in this regard was not controverted in his cross-examination during which not a single suggestion in this regard was given by learned Defence Counsel.
Sessions Case No. 57497/16 Page 20/48Furthermore, HC Satyapal (PW-24), Inspector Mukesh Kumar(PW-27) and Inspector Anand Swaroop (PW-28) duly identified accused Vijay @ Nauty to be involved in the present case. The testimony of all the afore- mentioned three prosecution witnesses remained uncontroverted and can be safely relied upon. In view of the above, there remains no doubt regarding the identity of accused Chander Prakash @ Pappu and Vijay @ Nauty in the present case to be the same persons who were named by Bunty (PW-3).
39. Sunny (PW-19) resiled from his previous statement and was cross- examined by the learned Addl. P.P for the State wherein he was confronted with his statement Mark X under Section 161 Cr.P.C. Even PW-19 also deposed about firing upon his brother Sonu @ Bhola (deceased) on 27.11.2010 by some persons who had come on motorcycles. He further deposed about the presence of Bunty (PW-3) on the spot besides him and the deceased Sonu. PW-19 also deposed about taking Sonu (deceased) on motorcycle and police gypsy to the hospital. In the afore-discussed circumstances, the testimony of Sunny (PW-19) regarding his denial about the involvement of the accused persons in the commission of murder of his brother Sonu (deceased) is not believable. Here again, the observations of the Hon'ble Supreme Court in Vinod Kumar (supra) case regarding delay and winning over of the witness becomes relevant as Sunny (PW-19) was examined after more than three years from the date of incident.
Evidence in Corroboration of testimony of Bunty (PW-3) and Sunny (PW-19)
40. The eye-witness account of Bunty (PW-3) and Sunny (PW-19) gets corroborated in all material aspects from the testimonies of following prosecution witnesses:
41. Shri Deepak (PW-9) deposed that on 27.11.2010 at about 8 p.m-
Sessions Case No. 57497/16 Page 21/488.30 p.m he was going with his ailing daughter for getting the medicine. Near Khatta at the corner of Hastal Village, Kali Basti, Sunny( PW-19) who was known to him came and asked for his motorcycle stating that somebody had fired upon his brother Sonu @ Bhola and Sunny (PW-19) had to take him to the hospital. Deepak (PW-9) handed over his motorcycle to Sunny (PW-19). Next morning, Sunny (PW-19) returned motorcycle to Deepak (PW-9) and informed him about the death of Sonu @ Bhola.
42. Dr. Rishi (PW-4) proved the MLC Ex.PW-4/A of Sonu @ Bhola (deceased) who was examined and declared brought dead. Further, Dr. B.N. Mishra (PW-26) proved the postmortem report Ex.PW-26/A of the deceased.
43. As per the MLC Ex.PW-4/A and postmortem report Ex.PW-26/A, the injuries found on the dead body of the deceased were consistent with the description of infliction of injuries as deposed by Bunty (PW-3). MLC Ex.PW-4/A speaks about the following injuries:
1. Lacerated wound present on forehead.
2. Lacerated wound present on eyelid (upper).
3. Oval shaped punctured wound present over chest.
4. Oval shaped punctured wound present over abdomen.
44. As per postmortem report Ex.PW-26/A, following external injuries were found present on the dead body of Sonu @ Bhola (deceased) :
1. Incised wound appearing like laceration present just above the right eyebrow with clean cut margins and appearing hardly triangular shape of size 2.5 c.m x 1.2cm x muscles deep with base covered by reddish colour blood clot.
2. Incised wound present on the right eyelid of size 2 x 0.8cm x deep whole thickness of eyelid with clean cut margins with base covered by reddish colour blood clot.Sessions Case No. 57497/16 Page 22/48
3. Wound of entry present on the upper middle and left sided on the chest adjacent to lateral border of body of sternum. The wound appeared circular in shape with having inverted margin and surrounded by a rim of abraded collar of thickness 2 mm at upper and lateral area while lower area bears 4 mm in thickness which causes abraded collar appears oval in shape. A tattooed area of 6 cm in diameter circular shaped surrounds the wound of entry with greyish brown in colour with partial infiltration of partly burnt gun powders into the epidermal layer with partial burning of skin and hair and singed out which could not be wiped by scrubbing. The diameter of the wound of entry measured 0.5 cm and located 8 cm from left nipple, 26 cm from the umbilicus and 10 cm from internal notch. The oozing of blood present from the wound. On exploration of the wound the tract of the missile (bullet) directed backwards and slightly backwards and reached upto the anterior surface of body of ninth thoracic vertebra and impacted upon it. During the course of travelling of bullet the left auricle of the heart pierced through and through with making a tear of size 0.5 cm x0.4 cm with massive collection of blood into the pericardial sac and adjacent area with dark reddish in colour. The bullet recovered from the area impaced (T-9 vertebra) which was jacketed and cyclindrical in shape, made of brass like material and lead like nose. The total length of bullet measured 3 cm and 0.6 cm in diameter at its basal part. No any wound of exit present on the body.
4. Wound of entry (bullet) present on the right hypochondrial region of the abdomen, 3 cm below from the lower border of the right side of the ribs. This appeared oval in shape and measured 3 cm x 2 cm with bevelling margin on right side and obliquely placed. The margins were abraded of thickness 0.2 mm to 0.4 mm and inverted.
The area around the wound of the entry extensively tattooed in scattered for with greyish brown in colour with partial infiltration of partly burnt gun powders into the epidermal layer with partial burning of skin and hair and singed which could not be wiped out by scrubbing. The wound located 7 cm from umbilicus ,21 cm from right nipple and 10 cm from right iliac crest. On exploration of Sessions Case No. 57497/16 Page 23/48 the wound the tract of the missile (bullet) directed backwards and medial towards the vertebral column and reached upto to the second lumber vertebra. During the course of travelling of the bullet the loops of small intestine and mesentery pierced out at many places with partial penetration of body of second lumber vertebra. The peritoneal cavity filled by liquid clotted blood about 200 ml with bruised area adjacent to struck area of the visceral organs. The bullets recovered from the area impacted ( L-2 vertebra) which was jacketed and cylindrical in shape, made of brass like material and lead like nose. The total length of bullet measured 3 cm and 0.6 cm in diameter at its basal part. No any wound of exit present on the body.
5. An incised wound of size 3.5 cm X 1 cm X muscles deep with bevelling margin present on the left side of the back over the medial border of left scapula with regular margins and reddish in colour. ( The cut marks detected in the cloths are consistent to this incised wound).
45. Further, on internal examination of chest (THORAX) one wound of entry was found present as mentioned in details in external injury no.3. Similarly, on abdomen, wound of entry was present as detailed in external injury no.4. The small intestine of the deceased was found torn at many places as mentioned in external injury no.4. In spinal column, T-9 and L- 2 vertebrae was partially fractured and penetrated by bullet which was recovered at strucking site.
Dr. B.N. Mishra (PW-26) opined the cause of death to be cardiogenic shock consequent upon tearing of heart (left auricle), caused by gun shot injury which was sufficient to cause instant death in ordinary course of nature. On the basis of nature of wound of entry, tattooing and burning of surrounding tissues alongwith tearing pattern of clothes at affected area, PW-26 also opined that the fire arms was fired close to deceased with slight angulations and distance could be less than 10 to 15 cm. The aforesaid opinion of PW-26 duly corroborates the testimony of Bunty (PW-3) wherein he deposed about one feet distance between the accused Sessions Case No. 57497/16 Page 24/48 persons and the deceased and two gun shot fired in quick succession.
PW-26 further opined that the external injuries no.1, 2 and 5 were caused by pointed sharp edged weapon like knife which further corroborates the testimony of PW-3 regarding infliction of knife injuries from back side upon the deceased. The weapon of offence recovered i.e knife Ex.P-5 was also produced before PW-26 for his subsequent opinion regarding the consistency of the injuries present on the body of the deceased and after thoroughly examining the knife produced before him, PW-26 opined that the external injuries no.1,2 and 5 mentioned in postmortem report Ex.PW-26/A could have been inflicted by the knife Ex.P-5. PW-26 also duly proved his subsequent opinion Ex.PW-26/B and sketch of knife Ex.PW-26/C which tallied with the sketch of knife Ex.PW-15/K prepared by the I.O.
46. Another important circumstance proved by the prosecution pertains to recovery of knife Ex.P-5 at the instance of accused Vinod @ Kake. As per the testimony of SI Shiv Dutt Jamini (PW-15), after the accused Mahesh and Vinod @ Kake surrendered in the court, they were interrogated and arrested. Accused Vinod @ Kake disclosed that he could get the knife recovered which was used in the present case from Vikas Puri nala (drain). The knife Ex.P-5 was recovered from underneath the bushes near the side wall of Vikas Puri nala (drain). The knife Ex.P-5 recovered at the instance of accused Vinod @ Kake was also having some dry blood stains. The knife Ex.P-5 was sent to FSL Rohini for conducting DNA profile of the blood stains found thereon alongwith the blood sample of Sonu (deceased).
47. Sh. A.K. Srivastava (PW-20), Deputy Director, DNA Unit, FSL Rohini, had conducted the DNA examination. He proved his report Ex.PW-20/A, whereby the DNA profile from the source Exhibit "2" (metallic knife) was found similar in origin as DNA profile from the Sessions Case No. 57497/16 Page 25/48 source of Exhibit "1" ( gauze cloth piece of deceased Sonu @ Bhola).
48. The recovery of knife Ex.P-5 at the instance of accused Vinod @ Kake, having blood stains on it and DNA profile match of blood stains found on the knife Ex.P-5 with the blood of Sonu (deceased) as per report Ex.PW-20/A, coupled with the eye-witness account of Bunty (PW-3) leaves no doubt that it was accused Vinod @ Kake who had inflicted the injuries on the person of Sonu (deceased) with the knife Ex.P-5.
49. There is a minor discrepancy in the testimony of SI Shivdutt Jamini (PW-15) that is, while deposing, PW-15 initially identified the accused Vinod as Mahesh and accused Vicky as Vinod, however, he clarified immediately that due to lapse of time he had forgotten the description of the accused persons as there was change in their hair-style and health. On pointing out by learned Addl. P.P for the State with the permission of the court, PW-15 correctly identified the accused persons.
50. As far as non-recovery of pistols used by accused Chander Prakash @ Pappu and Vijay @ Nauty as deposed by PW-3 is concerned, suffice it to say that both accused Chander Prakash @ Pappu and Vijay @ Nauty were declared proclaimed offender and were arrested much later which in itself makes the non-recovery of pistols used in the offence less probable. Even otherwise, as per the settled proposition of law as reiterated in Yogesh Singh v. Mahabeer Singh & Others, AIR 2016 SC 5160, the non- recovery of weapon of offence is not fatal to the case of the prosecution if other clinching evidence of eye-witnesses are available on record.
51. Besides,SI Ram Pal (PW-16) and ACP Jai Kishan Gautam (PW-30) deposed about the recovery of one motorcycle (black colour), at the instance of accused Anil from house no. RZ-19, Braham Puri and recovery of another motorcycle at the instance of accused Vicky @ Gobind from house no. C-41, South Extension, Part-I which also could Sessions Case No. 57497/16 Page 26/48 not be controverted and therefore further lends credence to the testimony of PW-3.
Testimonies of witnesses to prove investigation
52. Now, coming to the corroborative evidence as per the investigation conducted, Shri Raj Kumar (PW-5) deposed that he being an advocate was having an office at Shop No. 4, Guru Lala Nath Mandir, Village Hastal, Delhi. On 27.11.2010 at about 8.30 p.m when he was present in his office, he saw a crowd gathered outside of his office. When he went outside, he saw one person lying in injured condition near Kali Basti Khatta. Someone told him that some motorcycle riders had run away after firing at the injured. Thereafter, he informed the police at 100 number. He further deposed that on the next day of incident, IO met him and recorded his statement.
53. Constable Rajender Singh was got examined as PW-7, who deposed that on 27.11.2010 he was posted at PS Uttam Nagar. At about 8 p.m, on receiving a call regarding firing incident at Kali Basti, Hastal Village, Uttam Nagar, Delhi, he alongwith SI Shiv Dutt reached the place of incident. After coming to know that injured had already been removed to the hospital, SI Shiv Dutt left for the hospital, leaving him behind to look after the spot. At about 11.40 p.m SI Shiv Dutt handed over to him a rukka for getting the FIR registered in police station Uttam Nagar. PW-7 had gone to the police station and returned to the spot with a copy of FIR and original rukka, which he handed over to Inspector Jai Kishan Sharma, SHO PS Uttam Nagar. His statement was also recorded by the SHO in the night itself.
54. HC Kamal Singh (PW-8) deposed that on 27.11.2010 he was posted at police station Uttam Nagar as duty officer from 4 p.m to 2 a.m. On that day, at about 8.51 p.m he had received an information from PCR call regarding firing upon a person by four persons on two motorcycles at the Sessions Case No. 57497/16 Page 27/48 corner of Kali Basti, Central School, Hastal Road, Uttam Nagar, Delhi. He recorded DD No.46B (Ex.PW-8/A) in this regard and marked the same to SI Vijender Singh, who alongwith constable Rajender left for the place of occurrence. Later on, the call was marked to SI Shiv Dutt. On the same day, at about 9.35 p.m, he again received an information from PCR that a call had been received from Jhuggi no. 253 Transit Camp Hastal Uttam Nagar that brother of caller had been shot. He recorded DD No. 77-B (Ex.PW-8/B) in this regard and marked that same to SI Vijender Singh, who alongwith constable Rejender left for the spot. Later on, the call was marked to SI Shiv Dutt. On the same day at about 10.05 p.m, he received an information from duty constable of DDU hospital regarding death of Sonu Gola S/o Rajpal (deceased) R/o Kali Basti, Uttam Nagar aged 28 years. He had recorded DD No. 80-B(PW-8/C) and marked the same to SI Shiv Dutt. At about 11.55 p.m, on receipt of rukka (Ex.PW-8/F) sent by SI Shiv Dutt, he recorded FIR bearing no. 385/10 under Section 302/34 IPC (Ex.PW-8/D). Thereafter, the investigation was marked to SHO Inspector Jai Kishan.
55. During the course of arguments, learned Defence Counsel pointed out the contradictions pertaining to information about firing by four persons on two motorcycles recorded vide DD No.46A (Ex.PW-8/A). However, who gave such information is not clear. Even otherwise, information recorded for the purpose of DD entries cannot be taken as a credible evidence so as to consider it as material contradiction.
56. Constable Randhir Singh (PW-6) deposed that on the intervening night of 27/28.11.2010, he was posted at police station Uttam Nagar. At about 1.05 p.m duty officer HC Kamal Singh handed over to him four envelopes containing copies of FIR of present case to be handed over to the learned Metropolitan Magistrate, Special C.P, DCP and ACP. He accordingly, as Special Messenger handed over the copies of FIR to Ms. Sessions Case No. 57497/16 Page 28/48 Harleen Singh, learned Metropolitan Magistrate, Shri Amul Patnayak, Special CP, Shri Sharad Aggarwal, DCP and Shri Vikramjeet Singh, ACP. His statement was also recorded by the IO.
57. SI Shivdutt Jamini was examined as PW-15, who deposed that on 27.11.2010, he was posted at police station Uttam Nagar. On that day, at about 8.55 p.m, DD No. 46-A was received in the police station regarding shooting of a person by four persons. He alongwith constable Rajender had reached the spot i.e. garbage bin near Central School opposite Hastal Village, Kali Basti, Uttam Nagar, Delhi, where he found one empty cartridge and one sport shoe. The injured was reported to have been taken to DDU hospital, and, hence, SI Shivdutt Jamini(PW-15) reached DDU hospital where he collected the MLC of Sonu @ Bhola vide which the doctor had observed gun shot injury and declared him brought dead. In the hospital, PW-15 met with Sunny (PW-19) and Bunty (PW-3). He also recorded the statement Mark-X of Sunny (PW-19), who was the eye witness. PW-15 had prepared tehrir (Ex.PW-15/A) and prepared rukka which was handed over to constable Rajender for getting the FIR registered. PW-15 further deposed that SHO Inspector Jai Kishan Gautam had also reached at the spot who took over the investigation of the case and prepared sketch of empty cartridge (Ex.PW-3/E), blue and white colour shoe was sealed and seized vide memo Ex.PW-3/A, the I.O also took the blood in gauze which was lying at the spot, blood stained earth control and without blood earth control from the spot which were sealed and seized vide memo Ex.PW-3/C. Further, Sunny (PW19) had given his blood-stained clothes to the I.O which were sealed and seized vide memo Ex.PW-15/B. The clothes of Bunty (PW-3) were sealed and seized vide memo Ex.PW-3/D. PW-15 had witnessed the afore-mentioned seizure memos.
Further, PW-15 deposed that on 22.12.2010, he had come to Tis Sessions Case No. 57497/16 Page 29/48 Hazari Courts alongwith I.O when accused Mahesh and Vinod had surrendered in the court of learned Magistrate. After taking permission from the court, both the said accused persons were interrogated and their disclosure statements Ex.PW-15/D and Ex.PW-15/E both bearing his signatures were recorded. Both the accused Mahesh and Vinod were arrested vide memo Ex.PW-15/F and Ex.PW-15/G which he witnessed. Further, since accused Vinod disclosed that he could get the knife recovered which was used in the incident, two days police custody remand of both the accused persons was obtained and thereafter, accused Vinod led them to Vikas Puri Nala, near a pulia and from the side of wall of nala near the bushes, he pointed out the place where he had thrown the knife while running away. A buttondar knife having some dry blood stains on it was recovered from the bushes. The sketch Ex.PW-15/K of the knife was prepared. The knife was sealed and seized vide seizure memo Ex.PW-15/L.
58. During his examination-in-chief, PW-15 was also asked to identify the accused persons namely Mahesh and Vinod, consequent upon which he identified Vinod as Mahesh and accused Vicky as Vinod on which learned Addl. Public Prosecutor sought permission to put a leading question to him which was allowed and thereafter, PW-15 explained that due to lapse of time, he had forgotten the description of the accused persons who had changed their hair-style and there was a change in their health also. PW-15, then correctly identified both the accused persons on pointing out. He also identified the knife Ex.P-5 to be the same which was recovered at the instance of accused Vinod.
59. HC Devender Kumar (PW-1), on receipt of information from control room, had reached at the place of occurrence i.e. Kali Basti near Central School, Hastal Village, Uttam Nagar, Delhi alongwith crime team.
Sessions Case No. 57497/16 Page 30/48He had taken eight photographs (Ex.PW-1/B1 to Ex.PW-1/B8) of the spot and handed over its developed copies to the IO.
60. ASI Ajit Singh (PW-18) being the incharge of Crime Team had reached at the place of occurrence on receipt of information from the control room. PW-18 had prepared his detailed report (Ex.PW-18/A).
61. On the day of incident, PW-29 Inspector Mahesh Kumar alongwith Inspector Jai Kishan and SI Ram Pal had reached at the spot and took rough notes and measurements of the spot and prepared scaled site plan (Ex.PW-29/A).
62. Constable Kulvir (PW-2) deposed that on 27.11.2010 at about 9.15 p.m when he was passing through Maharaja Suraj Mal Institute in a government gypsy with ACP Dr. G.Ram Gopal Naik, near red light, two persons namely, Sunny and Bunty requested to help them in taking injured Sonu @ Bhola. PW-2 alongwith Sunny and Bunty put Sonu @ Bhola in the gypsy and took him to DDU hospital where doctor declared Sonu @ Bhola dead.
63. Shri Pappu (PW-10) , uncle of the deceased, had identified the dead body of deceased Sonu @ Bhola and his statement (Ex.PW-10/A) was recorded by the police to this effect.
64. H.C Surender Singh (PW-13), MHC (M), deposed about deposit of ten sealed parcels by Inspector Jai Kishan Gautam on 28.11.2010, out of which seven parcels were having seals of J.K and three parcels were having seals of DFMT DDU Hospital alongwith three sample seals for which he made entry in register no.19 at serial no. 4687. On 22.12.2010, Inspector Jai Kishan again deposited one sealed parcel sealed with the seal of JK stated to be containing one buttondar knife for which PW-13 made entry in register no.19 at serial no. 4687. Further, on 27.12.2010, ten parcels were sent to FSL Rohini throught HC Kishan Kumar vide RC no. 154/21/10 for which entry was made in register no. 19 at serial no. 4687.
Sessions Case No. 57497/16 Page 31/48On 28.2.2011, all the aforesaid ten parcels were received from FSL with FSL result and entry was made in register no.19 at serial no. 4687. PW-13 further deposed that on 3.3.2011, parcel no.9 and 11 were again taken by Inspector Jai Kishan to FSL Rohini vide RC no. 27/21/11 and after depositing the same with FSL, he handed over the receipt copy of R.C for which entries were made in 19 at serial no. 4687 and 4721. Further, on 16.3.2011, the parcel bearing serial no.9 and 11 were returned to PW-13 from FSL alongwith FSL result regarding which entry was made in 19 at serial no. 4687 and 4721.
65. PW-13 also produced original register no.19 containing the entries number 4687 and 4721, copies of which are Ex.PW-13/A and Ex.PW- 13/B. He also produced the original RC register containing RC No. 154/21/0 and RC No. 27/21/11, photocopies of which are Ex.PW-13/C and Ex.PW-13/D. He further stated that so long as the case property remained with him, nobody tampered with the same.
66. HC Krishan Kumar (PW-11) stated that on 27.12.2010, he took ten sealed parcels and four sample seals of FSL Rohini vide Road Certificate No. 154/12/10 after obtaining the same from MHC (M) in intact condition. After depositing the same with FSL, Rohini, PW-11 handed over the copy of R/C to MHC (M).
67. Constable Krishan Kumar (PW-12) stated that on 28.2.2011, he had gone to FSL Rohini on the directions of I.O and obtained ten sealed parcels sealed with the seal of FSL alongwith FSL result and deposited the same with MHC (M) at PS Uttam Nagar.
68. Ms. Manisha Upadhyaya (PW-17), Sr. Scientific Officer (Biology), FSL, Rohini, stated that on 27.12.2010, ten sealed parcels were received for examination by the office of FSL which were examined by her on 14.2.2011. PW-17 proved biological report Ex.PW-17/A and serological report Ex.PW-17/B. PW-17 stated that after the examination the remnants Sessions Case No. 57497/16 Page 32/48 of exhibits were sealed with the seal of FSL MU, Delhi.
69. HC Satyapal (PW-24) deposed that on 3.6.2013, IO interrogated the accused Vijay @ Nauty in his presence. He witnessed disclosure statement Ex.PW-24/A. PW-24 also witnessed arrest of the accused Vijay @ Nauty vide arrest memo Ex.PW-24/B. Accused Vijay @ Nauty was also taken to Vikas Puri drain where the accused pointed at the place where he had thrown the country-made pistol in the drain, however, the pistol could not be traced.
70. Inspector Mukesh Kumar (PW-27) stated that in the month of May,2013, he received information regarding arrest of accused Vijay @ Nauty and therefore moved an application for issuance of production warrant against the accused. The accused Vijay @ Nauty was produced on 3.6.2013. PW-27 also witnessed the disclosure statement Ex.PW-24/A and his arrest vide arrest memo Ex.PW-24/B. Police custody remand of the accused was obtained to recover the weapon of offence, but the same could not be recovered. Thereafter, the supplementary charge-sheet was prepared against the accused Vijay @ Nauty under the supervision of SHO.
71. Inspector Anand Swaroop (PW-28) deposed that while he was posted with Special Cell as SI, three accused persons were arrested in case FIR No. 22/2013 under Section 186/353/307/34 IPC read with Section 25/27 of Arms Act, one of them was accused Vijay @ Nauty. The accused Vijay @ Nauty was interrogated and his statement Ex.PW-25/A was recorded. PW-28 witnessed arrest of accused Vijay @ Nauty vide memo Ex.PW-25/C and personal search of the accused vide memo Ex.PW-25/B. PW-28 further stated that accused Vijay @ Nauty had confessed about his involvement in the present case and therefore, intimation regarding the arrest of accused Vijay @ Nauty was sent to P.S Uttam Nagar.
Sessions Case No. 57497/16 Page 33/4872. Dharmendra Kumar (PW-25), Ahlmad in the court of Sh. Ritesh Singh, Ld. ASJ-02, Patiala House, produced the judicial file of case FIR No.22/2013, under Section 186/353/307/34 IPC and 25/27 Arms Act, PS Special Cell. Further, he deposed that charge against accused Vijay @ Nauty was framed under Section 186/34, 353/34, 307/34 IPC and under Section 25 Arms Act. The judicial record also contains disclosure statement of the accused Vijay @ Nauty Ex.PW-25/A regarding his involvement in present case i.e FIR No.385/2010, personal search memo Ex.PW-25/B and arrest memo Ex.PW-25/C.
73. SI Ram Pal (PW-16) further deposed that on 5.4.2011, accused Anil surrendered before the court of learned Metropolitan Magistrate. The accused Anil was interrogated with permission of the court and he was formally arrested vide memo Ex.PW-16/A, his personal search was conducted vide memo Ex.PW-16/B. His disclosure statement Ex.PW- 16/C was recorded wherein the accused Anil disclosed that he can get the motorcycle involved in the case recovered. Further, PW-16 deposed that accused took the police party to RZ-19, Brahm Puri where motorcycle No. DL 4SAS 9740 TVS Feiro black colour , was reovered and seized vide seizure memo Ex.PW-16/D, the Registration Certificate of the said motorcycle was seized vide memo Ex.PW-16/E, copy of which is Ex.PW- 16/E1. Further, PW-16 deposed that on receiving information on 26.4.2011 about the accused Vicky @ Gobind coming to meet his mother at Uttam Nagar, a raiding party was formed. When the raiding party reached Hastal Road, the complainant Sunny (PW-19) also joined them. At the instance of complainant Sunny, accused Vicky @ Gobind was arrested vide memo Ex.PW-16/F, his personal search was conducted vide memo Ex.PW-16/G, disclosure statement of accused Vicky @ Gobind was recorded vide Ex.PW-16/H. Accused Vicky @ Gobind took them to House No. C-41, South Ext. Part-I, Delhi, from where he got the Sessions Case No. 57497/16 Page 34/48 motorcycle bearing registration No.DL 3SB 1195 recovered which was seized vide seizure memo Ex.PW-16/J. PW-16 identified both the motorcycles as Ex.PW-16/J1 and Ex.PW-16/D1.
74. Lastly, the prosecution got examined ACP Jai Kishan Gautam (PW-
30), I.O of the case who deposed at length regarding the entire investigation conducted by him including preparation of various documents, seizure memos, arrest of accused persons namely Vinod @ Kake, Mahesh, preparation of their arrest memos, personal search memos and recording disclosure statements. PW-30 further deposed about the recovery of one buttondar knife at the instance of accused Vinod @ Kake on 22.12.2010 from bushes inside the wall of Nala on the southern side of Vikas Puri Pulia. He further deposed that the blade of the knife was blood stained and the knife was found in an opened condition. The said knife was converted into a cloth parcel, sealed with the seal of JK and was deposited in the Malkhana. On 23.12.2010, the sealed parcel of the said knife was taken to Dr. B.N. Mishra (PW-26) who had conducted postmortem on the dead body of the deceased for obtaining his subsequent opinion regarding injuries vide request letter Ex.PW-30/J. Dr. B.N. Mishra (PW-26) had also prepared a sketch and gave his subsequent opinion and afterwards, the knife was controverted into a parcel by Dr. B.N. Mishra and was handed over to him which was again deposited in the Malkhana.
PW-30 further deposed about deposition of exhibits of the case in FSL Rohini, preparation of site plan by Draftsman SI Mahesh, receiving of FSL results and exhibits from FSL Rohini on 28.2.2011. PW-30 further deposed to have received exhibits of recovered knife and blood sample of the deceased on 3.3.2011 which were taken to FSL Rohini for conducting DNA profiling and thereafter on 16.3.2011, Shri A.K. Srivastava (PW-20), Assistant Director, DNA, FSL, Rohini, confirmed the Sessions Case No. 57497/16 Page 35/48 presence of blood of the deceased on the knife in his report.
PW-30 also deposed about the arrest of accused Prakash Passi by SI Ram Pal (PW-16), arrest of accused Anil after his surrender in the court, recovery of motorcycle bearing registration DL4S AS 9740 from house no. RZ-19, Braham Puri, Sagar Pur, at the instance of accused Anil, arrest of accused Vicky @ Gobind on 26.4.2011 and recovery of motorcycle bearing registration No. DL 3S DC 1195 from house no.C-41, South-X, Part-I, at the instance of accused Vicky @ Gobind.
Further, after completion of the investigation supplementary chargesheet against accused Anil and Vicky @ Gobind was filed in the court. Accused persons namely Vijay @ Nauty, Chander Prakash @ Pappu, Ranjit @ Rahul and Nagender @ Vicky @ Ganja were got declared proclaimed offenders and their chargesheets was filed in the court. PW-30 further deposed that accused Chander Prakash @ Pappu and accused Vijay @ Nauty were arrested by the Crime Branch, whereas accused Nagender @ Vicky @ Ganja and accused Ranjit @ Rahul could not be arrested. PW-30 also identified the earth control Ex.P-2, sport shoe Ex.P-1, blood stained shirt and sweater belonging to Bunty (PW-3) Ex.P-3, empty cartridge Ex.P-4, blood stained knife Ex.P-5, blood stained earth control Ex.P-6, blood stained clothes belonging to Sunny (PW-19) Ex.P-7, blood stained clothes i.e pant with belt, jacket, underwear, vest, T-shirt and left foot sport shoe of the deceased and motorcycles Ex.PW-16/J1 and Ex.PW-16/G1.
75. PW-30 was cross-examined by the learned counsel for the accused at length, however, no material defect or contradiction could be brought forth in the testimony of PW-30 during the cross-examination. PW-30 also clarified that as the knife Ex.P-5 was recovered after a gap of about one month, no chance prints were found present on it. The Sessions Case No. 57497/16 Page 36/48 creditworthiness of the testimony of PW-30, therefore, could not be impeached in his cross-examination.
76. In defence, accused Vicky @ Gobind got examined Sh. Rahul Vohra as DW-1. Rahul Vohra (DW-1) deposed that on 27.11.2010, at about 7 p.m, he made a telephone call to accused Vicky who called him at his house and subsequently DW-1 reached at the house of accused Vicky at 7:05 pm and remained there for two hours. DW-1 further deposed that during the said period, he had conversation with the accused Vicky and thereafter, he left the house of the accused Vicky at 9 p.m after taking dinner with him.
77. DW-1 was cross-examined by the learned Addl. Public Prosecutor for the State wherein he deposed in contradictory terms when he said that accused Vicky did not tell him about this case at any point of time, not even on the date when DW-1 deposed in the court. On further cross- examination, DW-1 stated that he had never gone to the house of accused Vicky except on 27.11.2010, though he claimed to be a friend of accused Vicky. DW-1 could not furnish any reason for remembering the date 27.11.2010. He further deposed that accused Vicky who used to play billiards with him for about 5/6 years, had not come to play billiards for about 5/6 months after 27.11.2010, but DW-1 did not raise any inquiry from him in this regard. Nor he made any telephonic call to accused Vicky on 28.11.2010 after coming to know about his involvement in this case. This deposition of DW-1 is contradictory to normal behaviour of a prudent person and does not appeal to common sense. The cross- examination conducted by the learned Addl. Public Prosecutor for the State successfully impeached the creditworthiness of testimony of DW-1 which is not worth placing reliance upon.
78. In view of testimonies of above-mentioned prosecution witnesses, it is clear that the entire investigation conducted by the I.O cannot be faulted Sessions Case No. 57497/16 Page 37/48 with. There is no contradiction in the testimony of prosecution witnesses which may be termed as a major contradiction going to the root of the case. It is also evident that the investigation conducted was not a motivated one, but all the prosecution witnesses deposed in a natural manner. The investigation is, accordingly, properly linked leaving no room to presume any defect going to the root of the case.
79. It would be pertinent here to refer Section 34 of IPC which is as under:
34.Acts done by several persons in furtherance of common intention- when a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone.
80. In view of above-mentioned provision, to apply Section 34 IPC, apart from the fact that there should be two or more accused persons, two factors must be established; (i) common intention and (ii) participation of accused in the commission of an offence. It requires a pre-arranged plan and pre-supposed prior concert and therefore, there must be prior meeting of mind. It is also clear that if some act is done by the accused persons in furtherance of common intention of co-accused, he is equally liable like his co-accused (reliance placed on Jai Bhagwan v. State of Haryana, AIR, 1999, SC 1083; Ramashish Yadav v. State of Bihar, 1999 (8) SCC 555 ).
81. In the above-discussed facts and circumstances, it has been proved that there was a previous enmity between the families of Sonu @ Bhola (deceased) and the accused persons namely Vijay @ Nauty, Chander Prakash @ Pappu and Vinod @ Kake,all sons of late Chiranji Lal. On 27.11.2010, at around 8.30 p.m, all the accused persons except accused Prakash Passi were present at the scene of crime where Sonu @ Bhola (deceased), Bunty (PW-3) and Sunny (PW-19) were also present. It has also been proved that accused persons namely Mahesh, Anil, Vicky @ Gobind, who all had come on motorcycles almost simultaneously, in Sessions Case No. 57497/16 Page 38/48 furtherance of their common intentions, caught hold of Sonu @ Bhola, whereas accused persons namely Vinod @ Kake inflected knife injuries, accused Vijay @ Nauty and accused Chander Prakash @ Pappu fired at Sonu @ Bhola (deceased) with the contrymade pistol, in furtherance of common intention of all the accused persons. The injuries suffered by Sonu @ Bhola (decreased) were sufficient to cause his death in the ordinary course of nature who ultimately succumbed to the said injuries. To put it in other words, the prosecution successfully proved that the accused persons namely Vinod @ Kake, Chander Prakash @ Pappu, Mahesh, Vicky @ Gobind, Vijay @ Nauty and Anil, in furtherance of their common intention, committed murder of Sonu @ Bhola (deceased) on 27.11.2010 at about 8:30 p.m. The points of determination no.1 to 9 are accordingly decided. I, therefore, hold all the above-named accused persons i.e Vinod @ Kake, Chander Prakash @ Pappu, Mahesh, Vicky @ Gobind, Vijay @ Nauty and Anil guilty for the offence punishable under Section 302/34 IPC and convict them.
Charge under Section 25 and 27 of The Arms Act, 1959 Accused Vinod @ Kake was charged for the offence punishable under Section 25/27 of the Arms Act.
82. As already discussed, Bunty (PW-3) deposed in categorical terms about the use of knife Ex.P-5 by the accused Vinod @ Kake in inflicting injuries on the person of Sonu @ Bhola (deceased). As per the testimonies of SI Shiv Dutt Jamini (PW-15) and ACP Jai Kishan Gautam (PW-30), the knife Ex.P-5 was recovered at the instance of accused Vinod @ Kake which is admissible under Section 27 of the Evidence Act. The postmortem report Ex.PW-26/A proved by Dr. B.N. Mishra (PW-26) also mentions the external injuries no.1, 2 and 5 to have been caused by pointed sharp edged weapon like knife. Dr. B.N. Mishra (PW-26) also proved his subsequent opinion Ex.PW-26/B that the said injuries no.1,2 Sessions Case No. 57497/16 Page 39/48 and 5 were consistent to have been inflicted by the knife Ex.P-5 produced before him. He had also drawn sketch of the knife Ex.PW-26/C which tallied with the sketch of knife Ex.PW-15/K, prepared by the I.O of the case. The recovered knife Ex.P-5 which was having dry blood stains on it was also sent to FSL, Rohini for DNA profiling with blood sample of the deceased which matched with it vide report Ex.PW-20/A proved by Dr. A.K. Srivastava (PW-20).
83. In view of the above-discussion, there is no doubt that the knife Ex.P-5 was used by the accused Vinod @ Kake for inflicting injuries on the person of Sonu @ Bhola (deceased). Accused Vinod @ Kake could not produce any license for possessing the knife Ex.P-5 which was the fact within his special knowledge and under Section 106 of the Indian Evidence Act,1872, he was bound to prove it which he failed to do. The accused Vinod @ Kake, therefore, used knife Ex.P-5 in contravention of Section 5 of the Arms Act,1959 and is accordingly held guilty for the offence punishable under Section 27 of the Arms Act,1959. Charge under Section 201 IPC Accused Chander Prakash @ Pappu was charged for the offence punishable under Section 201 IPC. Section 201 IPC reads as under:
201.Causing disappearance of evidence of offence or giving false information to screen offender.- Whoever, knowing or having reason to believe that an offence has been committed, causes any evidence of the commission of that offence to disappear, with the intention of screening the offender from legal punishment, or with that intention gives any information respecting the offence which he knows or believes to be false:
If a capital offence.- shall, if the offence which he knows or believes to have been committed is punishable with death, be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
84. In view of unrebutted testimony of Bunty (PW-3) as discussed earlier, it has been proved that the accused Chander Prakash @ Pappu Sessions Case No. 57497/16 Page 40/48 fired upon Sonu @ Bhola (deceased) on 27.11.2010 at about 8:30 p.m., in front of wall of Central School, Hastal Village. As per MLC Ex.PW-4/A and postmortem report Ex.PW-26/A, there were gun shot injuries found on the person of Sonu @ Bhola (deceased). Dr. B.N. Mishra (PW-26) who had conducted the postmortem on the dead body of Sonu @ Bhola (deceased) opined the cause of death to be cardiogenic shock consequent upon tearing of heart (left auricle), caused by gun shot injury which was sufficient to cause instant death in ordinary course of nature. Further, on internal examination of spinal column, T-9 and L-2 vertebrae was found partially fractured and penetrated by bullet which was recovered at strucking site. As per the testimony of SI Shiv Dutt Jamini (PW-15) and ACP Jai Kishan Gautam (PW-30) I.O of the case, one empty cartridge Ex.P-4 was also found at the scene of crime which was seized vide seizure memo Ex.PW-3/B. The sketch of the fired cartridge Ex.PW-3/E was also prepared by the I.O. In view of unrebutted testimony of Bunty (PW-3), SI Shiv Dutt Jamini (PW-15) and ACP Jai Kishan Gautum (PW-
30) as discussed earlier, there is no doubt that accused Chander Prakash @ Pappu used one countrymade firearm for committing murder of Sonu @ Bhola (deceased) alongwith other afore-mentioned accused persons.
85. As per record, the accused Chander Prakash @ Pappu was declared proclaimed offender vide order dated 24.08.2011. He was subsequently arrested on 03.10.2012 which is not disputed. After the arrest of accused Chander Prakash @ Pappu, the recovery of country-made firearm used by him for committing murder of Sonu @ Bhola (deceased) could not be made. The aforesaid non-recovery of weapon of offence is not fatal to the prosecution case in view of settled law in this regard which was also reiterated in Yogesh Singh (supra) case. Keeping in view the gap of period between the date of offence i.e 27.11.2010 and arrest of the accused Chander Prakash @ Pappu on 03.10.2012 and non-recovery of Sessions Case No. 57497/16 Page 41/48 said country-made firearm, the only inference that can be drawn is that the accused Chander Prakash @ Pappu caused the evidence of commission of murder with the said country-made firearm disappear with an intention to screen himself from legal punishment.
86. As observed earlier, the prosecution proved that the accused Chander Prakash @ Pappu used the country-made firearm to fire upon Sonu @ Bhola (deceased) which could not be recovered subsequent to his arrest. It was incumbent upon the accused Chander Prakash @ Pappu to explain this incriminating circumstance i.e disappearance of said firearm. The observations of Hon'ble Supreme Court in State of Rajasthan v. Kashi Ram (2006) 12 SCC 254 are pertinent to note here which are as under :
23. It is not necessary to multiply with authorities. The principle is well settled. The provision of Section 106 of the Evidence Act itself are unambiguous and categoric in laying down when any fact is especially within the knowledge of a person, the burden of proving that fact is upon him. Thus, if a persons is last seen with the deceased, he must offer an explanation as to how and when he parted the company. He must furnish an explanation which appears to the Court to be probable and satisfactory. If he does so, he must be held to have discharged his burden. If he fails to offer an explanation on the basis of facts within his special knowledge, he fails to discharge the burden cast upon him by Section 106 of the Evidence Act. In a case of resting on circumstantial evidence if the accused fails to offer a reasonable explanation in discharge of the burden placed on him, that itself provides an additional link in the chain of circumstances proved against him. Section 106 does not shift the burden of proof in a criminal trial which is always upon the prosecution. It lays down the rule that when the accused does not throw any light upon the facts which are specially within his knowledge and which could not support any theory or hypothesis compatible with his innocence, the Court can consider his failure to adduce any explanation, as an additional link which completes the chain.
87. In the light of above proposition laid down by the Hon'ble Supreme Court, it is clear that in the present case which is primarily based on eye-
Sessions Case No. 57497/16 Page 42/48witness account of Bunty (PW-3) and Sunny (PW-19), wherein Bunty (PW-3) categorically deposed about the use of country-made firearm by the accused Chander Prakash @ Pappu, the burden under Section 106 of the Evidence Act was cast upon accused Chander Prakash @ Pappu to offer a plausible explanation with regard to non-recovery of said country- made firearm failing which a reasonable inference for causing disappearance of evidence can be drawn against the accused Chander Prakash @ Pappu. Such non-furnishing of any explanation is an additional link in the chain of circumstances against accused Chander Prakash @ Pappu. No evidence to hold otherwise could be led by the accused Chander Prakash @ Pappu.
88. In view of all the attendant facts and circumstances, in my considered opinion, the prosecution successfully proved that it was the accused Chander Prakash @ Pappu who had caused the disappearance of evidence regarding weapon of offence i.e country-made firearm. The point of determination no. 10 is accordingly decided. Accused Chander Prakash @ Pappu is accordingly held guilty for commission of offence punishable under Section 201 (Para-I) IPC and is convicted for the same. Charge under Section 174A IPC
89. Both accused Chander Prakash @ Pappu and accused Vijay @ Nauty were charged with commission of offence under Section 174A IPC vide order dated 3.1.2013 and 4.9.2013. Section 174A IPC is reproduced as under :
174A.Non-appearance in response to a proclamation under Section 82 of Act 2 of 1974.- Whoever fails to appear at the specified place and the specified time as required by a proclamation published under sub-section (1) of Section 82 of the Code of Criminal Procedure,1973, shall be punished with imprisonment for a term which may extend to three years or with fine or with both, and where a declaration has been made under sub-section (4) of that Section pronouncing him as a proclaimed offender, he shall be punished with imprisonment Sessions Case No. 57497/16 Page 43/48 for a term which may extend to seven years and shall also be liable to fine.
90. As per record, both accused Chander Prakash @ Pappu and Vijay @ Nauty were declared proclaimed offender by learned Metropolitan Magistrate vide order dated 24.08.2011. After framing of charge against both the accused persons under Section 174A IPC on 03.01.2013 and 04.09.2013, the prosecution did not lead any evidence to show that both the accused persons had failed to appear at the specified place and the specified time as required by a proclamation published under sub section (1) of Section 82 Cr.P.C. In the absence of any evidence led by the prosecution, charge under Section 174A IPC against both the accused persons namely Chander Prakash @ Pappu and Vijay @ Nauty cannot sustain. Both the accused persons are accordingly acquitted of the said charge.
Charge under Section 216 IPC
91. Accused Prakash Passi was charged with commission of offence under Section 216 IPC. Section 216 IPC is reproduced as under:
216.Harbouring offender who has escaped from custody or whose apprehension has not been ordered.- Whenever any person convicted of or charged with an offence, being in lawful custody for that offence, escapes from such custody;
92. or whenever a public servant, in the exercise of the lawful powers of such public servant, orders a certain person to be apprehended for an offence, whoever, knowing of such escape or order for apprehension harbours or conceals that person with the intention of preventing him from being apprehended, shall be punished in the manner following that is to say,-
If a capital offence.- If the offence for which the person was in custody or is ordered to be apprehended is punishable with death, he shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine;
93. To prove the afore-mentioned charge under Section 216 IPC against Sessions Case No. 57497/16 Page 44/48 accused Prakash Passi, the prosecution got examined following witnesses:
94. H.C Shailender (PW-14) deposed that he joined the investigation of the case with SI Ram Pal (PW-16) on 2.3.2011 and on receipt of secret information regarding presence of accused Vijay @ Nauty, Rahul and Vicky @ Ganja at village Jalalpur, District Unnao, U.P., he alongwith other police staff reached village Jalalpur, Unnao, U.P where SI Saurabh of P.S Makhi accompanied them to village Jalalpur. After making inquiry in the village, they reached at the house of accused Prakash Passi who tried to run away. The accused Prakash Passi was apprehended and interrogated who disclosed that accused persons namely Vijay @ Nauty, Rahul, Vicky @ Ganja had taken shelter in his house from 1.3.2011 and fled away on receiving information of their arrival. SI Ram Pal (PW-16) recorded the statement of Village Pradhan Smt. Ram Rani, neighbour Vinod and SI Saurabh of PS Makhi. PW-14 further deposed that on 4.3.2011, they brought the accused Prakash Passi to P.S Uttam Nagar, New Delhi, where he was again interrogated and arrested vide memo Ex.PW-14/A, his personal search was conducted vide memo Ex.PW-14/B.
95. SI Ram Pal (PW-16) deposed that on the instructions of I.O, he alongwith SI Manish, SI Sarvan and other police officials reached at village Jalalpur, District Unnao, U.P., where SI Saurabh Vikram joined them and they reached at Jalalpur on 3.3.2011 where the Gram Pradhan Smt. Ram Rani and one Vinod Passi were interrogated in the case and their statements were recorded. Further, PW-16 deposed that accused Prakash Passi had given shelter to accused persons who had left from there. Accused Prakash Passi was arrested on 4.3.2011 by invoking Section 216 IPC. PW-16 witnessed the arrest of accused Prakash Passi vide memo Ex.PW-14/A and personal search memo vide memo Ex.PW- 14/B. Accused Prakash Passi was brought to Delhi.
96. SI Saurabh Vikram Singh (PW-23), Special Task Force, Noida, U.P Sessions Case No. 57497/16 Page 45/48 deposed that on 3.3.2011, he was posted at P.S Makhi, District Unnau, U.P. SI Rampal, SI Shravan, SI Manish and other team members from Delhi Police had come to PS Makhi in search of accused namely Vijay @ Nauty, Vicky @ Ganja and Rahul. PW-23 accompanied the Delhi Police team to village Jalalpur and took them to the house of Pradhan of the village, Jalalpur. PW-23 further deposed that rest of the proceedings were not conducted in his presence.
97. Vinod (PW-21) was examined by the prosecution who showed his ignorance about the facts of the case on which learned Addl. Public Prosecution sought permission to cross-examine him which was allowed. PW-21 was cross-examined by learned Addl. Public Prosecutor for the State wherein he stated that accused Prakash Passi is his neighbourer in village Jalalpur. The statement Ex.PW-21/A was read over to PW-21 wherein facts regarding harbouring of accused persons by accused Prakash Passi and escape of three accused persons from the village were recorded. However, PW-1 denied about any such statement made to the police by him. PW-21 also denied to have seen accused Vijay @ Nauty living at the house of accused Prakash Passi. PW-21 however, identified the accused Prakash Passi being his neighbour in the village.
98. Smt. Ram Rani (PW-22), the village Pradhan, was examined who showed her ignorance about the facts of the case on which learned Addl. Public Prosecution sought permission to cross-examine her which was allowed. PW-22 was cross-examined by learned Addl. Public Prosecutor for the State wherein she stated to be the Pradhan of village Khera. She further stated to have not seen anybody living with the accused Prakash Passi on 1.3.2011. PW-22 categorically denied to have seen accused Vijay @ Nauty or any of the accused persons residing at the house of accused Prakash Passi.
99. In view of the testimonies of afore-mentioned prosecution Sessions Case No. 57497/16 Page 46/48 witnesses, it is clear that the accused persons namely Vijay @ Nauty, Rahul and Vicky @ Ganja were not found present in the house of accused Prakash Passi at village Jalalpur, District Unnao, U.P. Vinod (PW-21) showed his complete ignorance about the facts of the present case who was cross-examined by learned Addl. Prosecutor for the State wherein he denied to have ever made any statement Ex.PW-21/A to the police. PW- 21 also denied to have ever seen accused Vijay @ Nauty residing at the house of the accused Prakash Passi. Smt. Ram Rani (PW-22) had also not seen any accused persons residing in the house of accused Prakash Passi. In the given facts and circumstances, the only evidence available on record against the accused Prakash Passi regarding harbouring afore- mentioned accused persons is in the form of his disclosure statement made to the police which is not admissible in evidence. The prosecution did not lead any evidence to establish that accused Prakash Passi was in the knowledge of any order for apprehension issued by any public servant in respect of accused Vijay @ Nauty, Rahul and Vicky @ Ganja. The prosecution also could not establish that the afore-mentioned accused persons or for that matter, any of the accused persons in the present case ever resided in the house of accused Prakash Passi who intentionally harboured them to prevent from being apprehended. In my considered opinion, there is no evidence available on record to indicate any intention or knowledge on the part of accused Prakash Passi for harbouring or concealing any of the accused persons to prevent them from being apprehended. The prosecution, therefore, failed to prove the charge under Section 216 IPC against the accused Prakash Passi beyond all reasonable doubts. The point of determination no.11 is accordingly decided. The accused Prakash Passi is accordingly acquitted of the charge for the offence punishable under Section 216 IPC.
100. To sum up, in view of the above-discussed facts and circumstances, Sessions Case No. 57497/16 Page 47/48 accused Vinod @ Kake, accused Mahesh, accused Chander Prakash @ Pappu, accused Anil, accused Vicky @ Gobind and accused Vijay @ Nauty are convicted for commission of offence under Section 302/34 IPC.
101. Accused Vinod @ Kake is also convicted for commission of offence punishable under Section 27 of the Arms Act, 1959.
102. Accused Chander Prakash @ Pappu is also convicted for commission of offence punishable under Section 201 IPC.
103. Accused Chander Prakash @ Pappu and accused Vijay @ Nauty are acquitted of the charge for the offfence punishable under Section 174A IPC.
104. Accused Prakash Passi is acquitted of the charge for the offence punishable under Section 216 IPC.
105. Convict persons namely Vinod @ Kake, Mahesh, Chander Prakash @ Pappu, Anil and Vicky @ Gobind, who are on bail till now, be taken into custody.
106. Convict Vijay @ Nauty is already in judicial custody.
107. Let the convicts be heard on the point of sentence.
(Pronounced in the open Court (Kuldeep Narayan)
on 07-06-2017). Additional Sessions Judge (Pilot Court)
West : Court No. 33: Tis Hazari Courts
Delhi
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